This case involves the petition for a writ of habeas corpus by a Florida state inmate under sentence of death. On February 4, 1973, petitioner John A. Spenkelink, a 24-year-old white male and twice convicted felon, who had escaped from a California correctional camp, murdered his traveling companion, Joseph J. Szymankiewicz, a white male, in their Tallahassee, Florida motel room. Spenkelink shot Szymankiewicz, who was asleep in bed, once in the head just behind the left ear and a second time in the back, which fragmented the spine, ruptured the aorta, and resulted in the victim's death. The petitioner then recounted a cover story to the motel proprietor in order to delay discovery of the body and left.2 Authorities apprehended him less than one week later in Buena Park, California. On December 20, 1973, subsequent to a jury verdict of guilty of first degree murder, Spenkelink was sentenced to the death penalty by a Florida state court trial judge on the jury's recommendation.3 Now, five years later, following an unsuccessful direct appeal and unsuccessful collateral review in the Florida state courts, and two unsuccessful petitions for certiorari to the United States Supreme Court, Spenkelink seeks federal habeas corpus relief. He asks this Court, in effect, to reverse his conviction and annul the decision that he must die for his premeditated act of murder. After reviewing the record with painstaking care and considering each of the petitioner's contentions, we have determined that Spenkelink's conviction and sentence were proper. Accordingly, we affirm the district court's dismissal of his petition for habeas corpus.

Spenkelink was found guilty of first degree murder by a jury in the Circuit Court of the Second Judicial Circuit in Leon County, Florida.4 Under Florida law first degree murder is a capital felony, Fla.Stat.Ann. § 782.04(1),5 punishable either by life imprisonment with eligibility for parole after twenty-five years or by death, Fla.Stat.Ann. § 775.082(1),6 which in Florida is by electrocution. Fla.Stat.Ann. § 922.10. See id. § 922.11. In response to Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), Florida by legislative act has provided that a defendant convicted of a capital felony must be provided a bifurcated trial, with a separate sentencing proceeding following his conviction to determine whether he shall receive the death penalty or life imprisonment. The relevant statute, Fla.Stat.Ann. § 921.141, which is set forth in footnote7 below, requires that the sentencing proceeding be held before the trial jury,8 which is to reach its decision by a majority vote after considering whether there are sufficient statutorily-defined aggravating circumstances and, if so, whether sufficient statutorily-defined mitigating circumstances exist that outweigh the aggravating circumstances. The jury's determination is advisory only. That recommendation notwithstanding, the trial court must make the final sentencing decision, but if the court imposes a sentence of death, it must set forth written findings of fact to support its decision. Thus the trial court, in order to impose the death penalty, must find that sufficient statutorily-defined aggravating circumstances exist to justify the death penalty and that there are insufficient statutorily-defined mitigating circumstances to outweigh the aggravating circumstances found to exist. Additionally, "(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 v. State, 322 So. 2d 908, 910 (Fla.1975). The Florida Supreme Court automatically reviews each conviction and sentence of death on an expedited basis.9

The trial jury recommended that Spenkelink receive the death penalty. The trial court agreed. Pursuant to Fla.Stat.Ann. § 921.141(3), it found that the felony "was committed for pecuniary gain, either for another person's money or to re-coup his own," that the crime "was especially heinous, atrocious and cruel," that Spenkelink "was previously convicted of a felony involving the use, or threat of violence to another, to-wit: armed robbery," and that Spenkelink committed the crime while "under sentence of imprisonment." The only mitigating circumstance found by the trial court was "that possibly the defendant was under the influence of extreme mental or emotional disturbance," a consideration which, "based on the record as a whole," the court did not regard "as a substantial factor." See Fla.Stat.Ann. §§ 921.141(5), (6). The Supreme Court of Florida affirmed both the conviction and sentence. Spinkellink v. State, 313 So. 2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S. Ct. 3227, 49 L. Ed. 2d 1221 (1976). With respect to the sentence of death, the Florida Supreme Court stated:

As more fully set out above the record shows this crime to be premeditated, especially cruel, atrocious, and heinous and in connection with robbery of the victim to secure return of money claimed by Appellant. The aggravating circumstances justify imposition of the death sentence. Both Appellant and his victim were career criminals and Appellant showed no mitigating factors to require a more lenient sentence.

313 So.2d at 671. The United States Supreme Court denied certiorari. Spenkelink v. Florida, 428 U.S. 911, 96 S. Ct. 3227, 49 L. Ed. 2d 1221 (1976).

The petitioner next sought executive clemency. Article IV, section 8(a) of the Florida Constitution provides that the governor of Florida, with the approval of three members of the cabinet, may commute punishment. Pursuant to rules adopted by the governor and the cabinet regarding executive clemency, Spenkelink appeared first before the Florida Parole and Probation Commission, which recommended to the governor that clemency be denied. Counsel for Spenkelink and for the State then appeared before the governor and cabinet to argue the clemency issue. On September 12, 1977, the governor denied clemency and signed a death warrant setting Spenkelink's electrocution for 8:30 a. m. on September 19, 1977.

On September 13, the petitioner, pursuant to Fla.R.Crim.P. 3.850, filed a motion to vacate, set aside or correct sentence in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. The motion was dismissed and the Supreme Court of Florida affirmed. Spenkelink v. State, 350 So. 2d 85 (Fla.1977). The United States Supreme Court denied certiorari. Spenkelink v. Florida, 434 U.S. 960, 98 S. Ct. 492, 54 L. Ed. 2d 320 (1977).

Having exhausted his state court remedies, Spenkelink turned to federal court. On September 14 he filed a petition for habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. Judge William Stafford of the Northern District stayed the execution and scheduled an evidentiary hearing for September 21. At that time a hearing was held, which began during late morning and lasted into the evening, and which produced over 300 pages of testimony. On September 23 the district court dismissed the petition and ordered that the stay of execution expire at noon on September 30. The district court also granted Spenkelink a certificate of probable cause to appeal, pursuant to 28 U.S.C. § 2253. This Court then stayed the execution pending further order.

On appeal Spenkelink urges three general contentions through which he asserts the contentions in his habeas corpus petition. First, he contends that the district court erroneously denied him the right to submit evidence during the evidentiary hearing on some of the contentions in his petition, which the district court found to "have been authoritatively disposed of by the United States Supreme Court." Second, he contends that the district court erroneously denied his motion for a continuance and therefore denied him an adequate opportunity to present evidence during the evidentiary hearing on other contentions in his petition. Third, he asserts that the district court erroneously ruled against him on the merits of several of the contentions in his petition.

In support of his contentions that the trial court erred in not holding an evidentiary hearing on some of his claims and that the trial court held an inadequate hearing on others, the petitioner points to Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 757, 9 L. Ed. 2d 770 (1963), where the Supreme Court set forth the circumstances under which a federal district court must hold an evidentiary hearing on allegations in a habeas corpus petition. The requirements of Townsend as to when a hearing must be held are now codified in 28 U.S.C. § 2254.10 When, however, it affirmatively appears from the petition that a petitioner is not entitled to the writ, an evidentiary hearing is unnecessary. Guillory v. Allgood, 5 Cir., 1967, 379 F.2d 273, 274. See also Coco v. United States, 5 Cir., 1978,569 F.2d 367, 369. For example, if a petitioner's habeas corpus allegations raise legal questions only, a district court's refusal to hold an evidentiary hearing does not violate the directives of Townsend or Section 2254(d). Anderson v. Maggio, 5 Cir., 1977, 555 F.2d 447, 453. This rule would also apply when a trial court holds an inadequate evidentiary hearing, for if only questions of law are involved, an evidentiary hearing to develop fully the facts underlying a petitioner's complaints would be pointless. This Court views those of Spenkelink's contentions on which the trial court did not conduct a hearing and those on which the court conducted an allegedly inadequate hearing as containing legal questions only. We assume for the sake of argument that the factual allegations underlying these contentions are true, because, even if they are, the petitioner cannot prevail on them as a matter of law for reasons soon to be discussed. Accordingly, the trial court did not err in its conduct with respect to the evidentiary hearing.11With this procedural question behind us, we turn to the substantive contentions urged in the petition for habeas corpus.

Spenkelink contends first that at his trial the exclusion for cause of two veniremen who had conscientious scruples against the death penalty (1) violated the requirements of the Sixth and Fourteenth Amendments set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), (2) violated his right under the Sixth and Fourteenth Amendments to trial by an impartial jury, (3) violated his rights under the Sixth and Fourteenth Amendments to trial by a jury selected from a representative cross-section of the community, and (4) subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

During the voir dire examination of the jury, counsel for Spenkelink contemporaneously objected to the exclusion for cause of the two veniremen in question. His counsel did not, however, raise any of these contentions regarding the veniremen's exclusion on direct appeal to the Florida Supreme Court. Additionally, although a court reporter recorded the voir dire testimony, neither Spenkelink nor his trial attorney requested the court reporter to transcribe it, and his trial attorney even expressly excluded the voir dire examination from testimony designated to be transcribed for the appellate record.12 The Florida Supreme Court on collateral review, Spenkelink v. State, supra, and the district court below, both relying on Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), found that Spenkelink had waived his contentions regarding the exclusion of the two veniremen.

In Wainwright v. Sykes, supra, the United States Supreme Court held that a defendant who did not contemporaneously object, and whose attorney did not contemporaneously object, during the defendant's state trial to the involuntariness of the defendant's confession waived his objection and could not thereafter raise the issue on federal habeas corpus review. Justice Rehnquist, writing for the majority, stated:

We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that petitioner's confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965). We thus come to the crux of this case. Shall the rule of Francis v. Henderson, supra (425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149) barring federal habeas review absent a showing of "cause" and "prejudice" attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? We answer that question in the affirmative.

433 U.S. at 86, 97 S. Ct. at 2506. The Supreme Court made clear that federal habeas corpus review would not be barred if a defendant could show actual "prejudice" from or "cause" for his failure to follow the state procedural rule. Id. See Francis v. Henderson, 425 U.S. 536, 542, 96 S. Ct. 1708, 1711, 48 L. Ed. 2d 149 (1976). As to whether the defendant in Wainwright v. Sykes had shown cause or prejudice, the Court stated that "(w)hatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here." 433 U.S. at 91, 97 S.Ct. at 2508. Compare Sincox v. United States, 5 Cir., 1978, 571 F.2d 876; Jiminez v. Estelle, 5 Cir., 1977, 557 F.2d 506.

Whether Spenkelink's procedural default actually falls within the ambit of Wainwright v. Sykes, supra, and, concomitantly, whether sufficient cause or prejudice exists in this case so as not to bar federal habeas corpus review, are difficult questions on which we need not pass. Spenkelink's contentions regarding the exclusion of the two veniremen must fail on their merits as a matter of law for reasons to be discussed; the petitioner thus is not entitled to relief on the basis of these contentions even if Wainwright v. Sykes does not prevent him from raising them. Therefore, we proceed to a consideration of the merits of the contentions themselves.

In Witherspoon v. Illinois, supra, the Supreme Court held that the jury impartiality to which a criminal defendant is entitled under the Sixth and Fourteenth Amendments13 precludes a state from executing a person if the jury that imposed or recommended the death penalty "was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 518, 522, 88 S. Ct. at 1775, 1777. It cannot be assumed, the Court stated, that such veniremen will never vote in favor of the death penalty or would not consider doing so in the case from which they were excluded. Consequently, to exclude them for cause results in the selection of "a tribunal organized to return a verdict of death." 391 U.S. at 515 n. 9, 521, 88 S. Ct. 1773 n. 9, 1776. Only when a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings" can he be struck for cause. 391 U.S. at 522-23 n. 21, 88 S. Ct. at 1777 n. 21. The Witherspoon Court more carefully defined its holding through a paragraph in footnote 21 of its opinion:

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case.

The transcript of the voir dire examination of the two excluded veniremen is set forth in Appendix A. A reading of the transcript demonstrates that both veniremen stated unambiguously that they could fairly judge Spenkelink's guilt or innocence. However, both veniremen also made it " unmistakably clear . . . that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them." Id. In response to the question "(W)ould you automatically vote against the imposition of capital punishment without regard to the evidence?", venireman Ferrell stated, "Capital punishment, yes." In response to the same question venireman Colson replied, "I would." The record could not be clearer. The veniremen were properly excluded for cause and there was no Witherspoon violation.14 See, e. g., Davis v. Georgia, 429 U.S. 122, 97 S. Ct. 399, 50 L. Ed. 2d 339 (1976); Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969); Note, Jury Selection and the Death Penalty: Witherspoon in the Lower Courts, 37 U.Chi.L.Rev. 759, 762-63 (1970).

The petitioner's second argument is that even if the two veniremen were properly excluded for cause under Witherspoon from recommending his sentence, their exclusion for cause still violated his right under the Sixth and Fourteenth Amendments to trial by an impartial jury, because the exclusion of the two veniremen resulted in the selection of a "death-qualified" jury that was "prosecution-prone" with respect to the question of guilt or innocence. Spenkelink acknowledges that this contention was submitted to the Supreme Court in Witherspoon and that the Court expressly declined to embrace it, stating:

We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.

Witherspoon v. Illinois, supra, 391 U.S. at 518, 88 S. Ct. at 1774-75. Spenkelink suggests nonetheless that if this Court will remand his case for an additional evidentiary hearing, he will develop a more complete record than the one before the Supreme Court in Witherspoon and prove the contention.

The petitioner complains of jury partiality. He alleges that the exclusion for cause of the two veniremen resulted in a "death-qualified" jury that was "prosecution-prone." From this he concludes, by implication, that a nondeath-qualified jury in this case a jury which includes the two excluded veniremen would be impartial with respect to the question of guilt or innocence. This is not necessarily so. When the petitioner asserts that a death-qualified jury is prosecution-prone, he means that a death-qualified jury is more likely to convict than a nondeath-qualified jury.15 Proof that this proposition is true is far from conclusive,16 but for the moment we will assume its validity. Even if it is true, the petitioner's contention still must fail. That a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant. The pivotal question, therefore, is which appearance most closely reflects reality.

In the instant case a reading of the transcript of the voir dire examination demonstrates that those veniremen who were chosen to be jurors in no way indicated that they were biased for the prosecution or against the defendant. None of the veniremen indicated, for example, that he had a preconceived opinion as to the petitioner's guilt or innocence, compare Williams v. Wainwright, 5 Cir., 1970, 427 F.2d 921, 924, modified, 408 U.S. 941, 92 S. Ct. 2864, 33 L. Ed. 2d 765 (1972), or that he believed it would be his duty in every case to recommend that the trial court sentence a defendant found guilty of first degree murder to capital punishment. Compare Stroud v. United States, 251 U.S. 15, 20-21, 40 S. Ct. 50, 52, 64 L. Ed. 103 (1919); Crawford v. Bounds, 4 Cir., 1968, 395 F.2d 297, 301-04, cert. denied, 397 U.S. 936, 90 S. Ct. 941, 25 L. Ed. 2d 117 (1970); United States v. Puff, 2 Cir., 211 F.2d 171, 184, cert. denied, 347 U.S. 963, 74 S. Ct. 713, 98 L. Ed. 1106 (1954). Had a venireman expressed either attitude, he could appropriately be described as prosecution-prone and would properly have been struck for cause. E. g., Witherspoon v. Illinois, supra, 391 U.S. at 521, 88 S. Ct. at 1776; Fay v. People of State of New York, 332 U.S. 261, 294, 67 S. Ct. 1613, 1630, 91 L. Ed. 2043 (1947); Glasser v. United States, 315 U.S. 60, 83-87, 62 S. Ct. 457, 471-72, 86 L. Ed. 680 (1942); Stroud v. United States, supra, 251 U.S. at 20-21, 40 S. Ct. at 52; Williams v. Wainwright, supra, 427 F.2d at 923-24; Crawford v. Bounds, supra, 395 F.2d at 303-04; United States v. Puff, supra, 211 F.2d at 184; Fla.R.Crim.P. 3.330, 3.340. Instead, the veniremen chosen to be jurors indicated only that they had no conscientious scruples against the death penalty and that in a proper case they would recommend capital punishment which, as the Supreme Court made clear in, e. g., Proffitt v. Florida, supra, and Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), is constitutional if administered through a properly drawn statute. In other words, the veniremen indicated only that they would be willing to perform their civic obligation as jurors and obey the law. Such persons cannot accurately be branded prosecution-prone. Consider in this regard the comments of the late Judge Prettyman of the D.C. Circuit:(O)ur own inquiry has brought to our attention another thesis in this area of the law. It is that persons who are not opposed to capital punishment are psychologically inclined against criminals and therefore a jury composed of such persons is not an impartial jury. We understand that this thesis has not as yet received the sanction of any court. We cannot accept it. We examine it because this is a serious case, and if the thesis were tenable it might cause reversal. No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not opposed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. We think the premise for the thesis has no substance.

Tuberville v. United States, supra, 112 U.S.App.D.C. at 409, 303 F.2d at 420-21. See Pope v. United States, 8 Cir., 1967, 372 F.2d 710, 724-25, vacated on other grounds, 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968); United States v. Puff, supra, 211 F.2d at 184-85. See also Witherspoon v. Illinois, supra, 391 U.S. at 520, 88 S. Ct. at 1776; Clarke v. Grimes, 5 Cir., 1967, 374 F.2d 550, 552.

The two excluded veniremen, on the other hand, stated that they would automatically vote against imposition of the death penalty regardless of any evidence that might be developed at trial. They also represented that they would fairly judge the petitioner's guilt or innocence. The state trial court, nonetheless, struck them for cause, thus excluding them completely from the trial. We find nothing constitutionally impermissible by a state following such a procedure. Florida apparently has concluded that, if for whatever noble reason religious conviction, philosophical posture, intellectual stance, or some other reason a venireman clings so steadfastly to the belief that capital punishment is wrong that he would never under any circumstances agree to recommend the sentence of death, it is entirely possible perhaps even probable that such a venireman could not fairly judge a defendant's guilt or innocence when a capital felony is charged. Suppose, for example, that the evidence at trial proved the defendant's guilt beyond a reasonable doubt and demonstrated, within the meaning of the Florida death penalty statute, that capital punishment could be warranted. A juror who had such deeply-seated conscientious scruples against the death penalty might find himself confronting a grisly choice. If, because of his scruples, he votes to acquit, he must risk hanging the jury.17 Similarly motivated votes by other jurors in subsequent trials and retrials could, in effect, result in near immunity from crimes for which the death penalty can be imposed, which would frustrate Florida's interest in the just and evenhanded application of its laws, including its death penalty statute. If the juror votes to convict, he must risk betrayal of his principles should the death penalty eventually be imposed. Even under Florida's bifurcated trial procedure in these cases, the situation would be no less problematic. Although the juror could be excused from the jury during the sentencing phase of the trial, during the guilt-determination phase he still would know that a vote to convict could eventually mean the death penalty, a result to which he would have contributed, if only indirectly. His choices as to how to vote on the defendant's guilt or innocence would remain equally troublesome.

The right under the Sixth and Fourteenth Amendments to trial by a jury guarantees to the criminally accused "a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, supra, 366 U.S. at 722, 81 S. Ct. at 1642. Accord, e. g., Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 2036, 44 L. Ed. 2d 589 (1975). But the state also enjoys the right to an impartial jury, Williams v. Wainwright, supra, 427 F.2d at 923, and impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S. Ct. 350, 351, 30 L. Ed. 578 (1887). See Comment, 21 Vand.L.Rev. 864, 865 (1968). Florida has reasoned that a person may so cherish his conscientious scruples against the death penalty that he would favor the acquittal of a defendant charged with a capital felony. This is not, of course, necessarily true of all persons who would refuse under any circumstances to recommend death. Some such veniremen might be able to subordinate their personal views to their duty to abide by their oaths as jurors and to obey the law of Florida. Witherspoon v. Illinois, supra, 391 U.S. at 514 n. 7, 88 S. Ct. at 1773 n. 7, and cases cited therein. Florida, however, has determined that even though a venireman states he can fairly judge guilt or innocence, if he also states that he is irrevocably committed before the trial has begun to vote against the penalty of death, regardless of the facts and circumstances that might emerge at trial, he must be excluded completely. The state has decided that the parties' right under the sixth and fourteenth amendments to an impartial trial and the state's interest in the just and evenhanded application of its laws, including Florida's death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen.18 The Constitution does not prohibit this judgment. See Logan v. United States, 144 U.S. 263, 298, 12 S. Ct. 617, 628, 36 L. Ed. 429 (1892); Pope v. United States, supra, 372 F.2d at 724-25; Turberville v. United States, supra, 112 U.S.App.D.C. 407-10, 303 F.2d at 418-21; United States v. Puff, supra, 211 F.2d at 182-86. See also Witherspoon v. Illinois, supra, 391 U.S. at 520, 88 S. Ct. at 1776. But see Crawford v. Bounds, supra. The jury that emerges after excluding such veniremen, having been carefully examined to exclude also for cause those veniremen who are biased against the defendant, either as to guilt or as to punishment, is impartial. To call it prosecution-prone is to misunderstand the meaning of impartiality.19 Accordingly, the petitioner's contention is without merit.

Spenkelink's third contention is that the exclusion for cause of the two veniremen violated his right under the sixth and fourteenth amendments to trial by a jury selected from a representative cross-section of the community. Similarly, he contends also that the exclusion for cause of the two veniremen violated Fourteenth Amendment equal protection and due process. For reasons already detailed, the petitioner's contentions must be rejected.

In Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), the Supreme Court struck down as unconstitutional Louisiana's jury selection process whereby women, who represented 53 per cent of the eligible jurors in the parishes in question, had to register in order to be called for jury duty, a requirement that systematically excluded most eligible women from the jury venire. The Court held that such a jury selection system violated the criminal defendant's right under the Sixth and Fourteenth Amendments to trial by a jury selected from a representative cross-section of the community, which is "an essential component" of the fundamental right under the sixth amendment to trial by a jury in nonpetty criminal cases. 419 U.S. at 525-26, 528, 530-31, 537-38, 95 S. Ct. at 695, 697-98, 701-02. See Duncan v. Louisiana, supra. As justification for its exclusion of women, Louisiana argued "that women as a class serve a distinctive role in society" as the center of home and family life and "that jury service would . . . substantially interfere with that function." 419 U.S. at 533, 534 n. 15, 535 n. 17, 95 S. Ct. at 699 & n. 15, 700 n. 17. To this argument the Court responded:

The right to a proper jury cannot be overcome on merely rational grounds. There must be weightier reasons if a distinctive class representing 53% of the eligible jurors is for all practical purposes to be excluded from jury service. No such balance has been tendered here.20

419 U.S. at 534, 95 S. Ct. at 699-700.

Assuming for the moment that veniremen who are properly excluded under Witherspoon because they would automatically vote against the death penalty no matter what evidence was proved at trial constitute a "distinctive class," cf. Witherspoon v. Illinois, supra, 391 U.S. at 519-20, 88 S. Ct. at 1775-76, we believe that Florida in the instant case has satisfactorily shown the "weightier reasons" required by the Supreme Court in Taylor for the exclusion of such veniremen. See generally Ballew v. Georgia, supra; Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). As we have already noted, Florida has reached the reasoned determination that the parties' right under the Sixth and Fourteenth Amendments to an impartial jury and the state's interest in the just and evenhanded application of its laws, including Florida's death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. As the petitioner in his brief concedes, a defendant would be unjustified in objecting, for instance, to the exclusion for cause of a class composed of veniremen who are related to him, even if the veniremen stated they could impartially judge his guilt or innocence, because the chance that such veniremen would be biased in favor of the defendant is too great. Petitioner's Brief at 57. Such danger is no less real when the excluded class is those veniremen properly struck under Witherspoon because of their conscientious scruples against capital punishment. The exclusion of such veniremen, therefore, does not violate the representative cross-section requirement of the Sixth and Fourteenth Amendments.21 See Brown v. Allen, 344 U.S. 443, 467-74, 73 S. Ct. 397, 412-16, 97 L. Ed. 469 (1953); United States v. Gordon-Nikkar, 5 Cir., 1975, 518 F.2d 972; Pope v. United States, supra, 372 F.2d at 724-25; Turberville v. United States, supra, 112 U.S.App.D.C. 407-10, 303 F.2d at 418-21; United States v. Puff, supra, 211 F.2d at 180-186. Compare Glasser v. United States, supra, 315 U.S. at 83-87, 62 S. Ct. at 471-72; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, cert. denied, 386 U.S. 991, 87 S. Ct. 1303, 18 L. Ed. 2d 334 (1967).

The petitioner's final contention with regard to the exclusion of the two veniremen is that their exclusion for cause resulted in the selection of a jury that was incapable of " 'maintain(ing) a link between contemporary community values and the penal system,' " Woodson v. North Carolina, 428 U.S. 280, 295, 96 S. Ct. 2978, 2987, 49 L. Ed. 2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), quoting Witherspoon v. Illinois, supra, 391 U.S. at 519 n.15, 88 S. Ct. at 1775 n.15, which thus subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.22 Spenkelink points to Woodson, Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), and Gregg v. Georgia, supra, in which the Court held, as it did in Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), and Proffitt v. Florida, supra, that capital punishment, if imposed through a properly drawn statute by a properly guided sentencing body, does not constitute cruel and unusual punishment, and contends that the Court in those decisions "relied upon the notion that juries' reflections of enduring community attitudes in regard to the propriety of capital punishment would keep infliction of the death penalty in line with the enduring standards of decency which are the measure of the Eighth Amendment." Petitioner's Brief at 58-59. See Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958) (plurality opinion) ("The (Eighth) Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.") According to Spenkelink, the exclusion of the two veniremen who were irrevocably against capital punishment under all circumstances resulted in the selection of a jury that did not reflect the full panoply of these "enduring community attitudes" about capital punishment, a deficiency that allegedly violates the Eighth Amendment's ban against cruel and unusual punishment as interpreted in Woodson, Roberts, and Gregg, as well as in Jurek and Proffitt. This is so, says the petitioner, even if the veniremen were properly excluded under the Witherspoon rationale.

We have carefully reviewed the Supreme Court's pronouncements in all five of these decisions and find no support for the petitioner's contention. While the Court in these decisions indicated its approval of properly guided jury participation in the capital punishment sentencing process, see, e. g., Roberts v. Louisiana, supra, 428 U.S. at 335, 96 S. Ct. at 3007 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina,supra, 428 U.S. at 302, 96 S.Ct. at 2990 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, supra, 428 U.S. at 269-75, 96 S. Ct. at 2955-57 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida,supra, 428 U.S. at 253, 96 S.Ct. at 2966 (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, supra, 428 U.S. at 188-98, 96 S. Ct. at 2932-36 (opinion of Stewart, Powell, and Stevens, JJ.), nowhere in the cited cases did the Court allude to the question of appropriate jury composition in the context of the Eighth and Fourteenth Amendments, much less address the specific contention raised here by the petitioner. In any event, as has already been demonstrated, the jury composition in the instant case was constitutional. Accordingly, the contention is without merit.

Spenkelink's next series of contentions are directed against the Florida death penalty statute, Fla.Stat.Ann. § 921.141.23 The petitioner attacks the statute as applied, pointing out that the United States Supreme Court's comprehensive review of the statute in Proffitt v. Florida, supra, resulted only in a declaration that Section 921.141 was constitutional on its face. Specifically, Spenkelink contends (1) that the death penalty under Section 921.141 is being applied arbitrarily, capriciously, excessively, and disproportionately in violation of the Eighth and Fourteenth Amendments, (2) that the death penalty under Section 921.141 is being systematically administered so as to induce guilty pleas from defendants charged with capital felonies, which allegedly penalizes these defendants' exercise of their right under the Fifth and Fourteenth Amendments to plead not guilty, (3) that Section 921.141 contains unreliable procedures and standards for determining aggravating circumstances in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, (4) that the death penalty under Section 921.141 is being applied in a discriminatory fashion against defendants convicted of murdering whites, as opposed to blacks, in violation of the Eighth and Fourteenth Amendments and in violation of Fourteenth Amendment equal protection, (5) that electrocution, which is Florida's method of carrying out a sentence of capital punishment, is unnecessarily torturous and wantonly cruel in violation of the Eighth and Fourteenth Amendments, and (6) that the death penalty under Section 921.141 is being applied in a discriminatory fashion against males and poor persons in violation of Fourteenth Amendment equal protection.

In his first contention the petitioner charges that the death penalty under Section 921.141 is being applied arbitrarily and capriciously, as well as excessively and disproportionately,24 in violation of the prohibition against cruel and unusual punishment in the eighth and fourteenth amendments. Spenkelink points to his own case as evidence of these allegations, contending that "it is apparent that virtually every death sentence reversed by the Florida Supreme Court has involved a more gruesome set of facts than the instant case." Petitioner's Brief at 37. He contends further that "(i)f the homicide in this case occurred today, it is inconceivable that (he) would be sentenced to death, for a plethora of Florida cases all decided after Spinkelink indicate that this sort of homicide is not deemed sufficiently heinous in Florida to merit the penalty of death." Id. at 40.

The Florida Legislature enacted Section 921.141 at least in part as a response to Furman v. Georgia, supra. In Furman the Supreme Court held that statutes which grant a jury unbridled discretion in the imposition of the death penalty allow the penalty to be imposed arbitrarily and capriciously, thus violating the ban under the eighth and fourteenth amendments against cruel and unusual punishment. Furman was a 5-4 per curiam decision with each Justice writing a separate opinion in which none of the others joined. Justices Douglas, Brennan, Stewart, White, and Marshall were in the majority, while Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented. Of those in the majority, only Justices Brennan and Marshall found the death penalty unconstitutional per se. 408 U.S. at 370-71, 92 S.Ct. at 2793-94 (Marshall, J., concurring); 408 U.S. at 305-06, 92 S.Ct. at 2760 (Brennan, J., concurring). Justice Douglas, on the other hand, emphasized that standardless capital punishment statutes allow the death penalty to be inflicted in a discriminatory fashion; as he put it, such statutes "are pregnant with discrimination." 408 U.S. at 257, 92 S.Ct. at 2735 (Douglas, J., concurring). Justice White stressed that discretionary statutes result in the death penalty being extracted so infrequently, even for the most atrocious crimes, "that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not," which causes the penalty to lose its deterrent effect. 408 U.S. at 312-13, 92 S.Ct. at 2764 (White, J., concurring). Justice Stewart felt that such statutes allow the death penalty to be applied "wantonly" and "freakishly" to "a capriciously selected random handful." 408 U.S. at 309-10, 92 S.Ct. at 2762-63 (Stewart, J., concurring). See The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 63 & n.3 (1976). Furman, then, did not hold that imposition of the death penalty per se violates the Constitution, but only that the manner in which it was being imposed arbitrarily and capriciously was unconstitutional. See, e. g., Roberts v. Louisiana, supra, 428 U.S. at 335, 92 S. Ct. at 3007 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, supra, 428 U.S. at 302, 96 S. Ct. at 2990 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, supra, 428 U.S. at 276, 96 S. Ct. at 2958 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Georgia, supra, 428 U.S. at 259, 96 S. Ct. at 2970 (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, supra, 428 U.S. at 188, 96 S. Ct. at 2932 (opinion of Stewart, Powell, and Stevens, JJ.)

That was 1972. In 1976 the Court returned to the subject of capital punishment in Roberts v. Louisiana, supra; Woodson v. North Carolina, supra; Jurek v. Texas, supra; Proffitt v. Florida, supra; and Gregg v. Georgia, supra. In Gregg, Proffitt, and Jurek the Court found constitutional, in light of Furman, death penalty statutes that articulated standards in the form of aggravating and mitigating circumstances concerning the nature of the crime as well as the nature of the criminal, which judges and juries were to follow in exercising their discretion as to which convicted murderers were to die for their crimes and which were to receive life sentences. In Woodson and Roberts the Court struck down statutes that made the death penalty mandatory for the commission of certain crimes; such statutes, stated the Court, necessarily run afoul of Furman's proscription of unbridled jury discretion in the imposition of capital punishment.

The Florida statute held constitutional in Proffitt v. Florida, supra, was Section 921.141, the identical statute the petitioner challenges in the case at hand. See also State v. Dixon, 283 So. 2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S. Ct. 1950, 40 L. Ed. 2d 295 (1974) (Section 921.141 held constitutional by Florida Supreme Court). Although the Court in Proffitt indicated that its concern was with the constitutionality of the statute on its face, 428 U.S. at 251-54, 96 S.Ct. at 2966-67 (opinion of Stewart, Powell, and Stevens, JJ.), we find quite instructive certain Proffitt passages in considering Spenkelink's contention that the death penalty under Section 921.141 is now being applied arbitrarily, capriciously, excessively, and disproportionately. In Proffitt the Court stated:

The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida's appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida "to determine independently whether the imposition of the ultimate penalty is warranted." Songer v. State, 322 So. 2d 481, 484 (Fla. 1975). See also Sullivan v. State, 303 So. 2d 632, 637 (Fla. 1974). The Supreme Court of Florida, like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. Indeed, it has vacated eight of the 21 death sentences that it has reviewed to date. See Taylor v. State, 294 So. 2d 648 (Fla.1974); Lamadline v. State, 303 So. 2d 17 (Fla.1974); Slater v. State, 316 So. 2d 539 (Fla.1974); Swan v. State, 322 So. 2d 485 (Fla.1975); Tedder v. State, 322 So. 2d 908 (Fla.1975); Halliwell v. State, 323 So. 2d 557 (Fla.1975); Thompson v. State, 328 So. 2d 1 (Fla.1976); Messer v. State, 330 So. 2d 137 (Fla.1976).

Under Florida's capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentence imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is " 'no meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases where it is not.' " Gregg v. Georgia, ante, 428 U.S. p. 188, 96 S.Ct. p. 2932, quoting Furman v. Georgia, 408 U.S., at 313, 92 S.Ct., at 2764 (White, J., concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Furman.

428 U.S. at 253, 96 S. Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.). Later the Court added:

Nonetheless the petitioner attacks the Florida appellate review process because the role of the Supreme Court of Florida in reviewing death sentences is necessarily subjective and unpredictable. While it may be true that that Court has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary. In fact, it is apparent that the Florida Court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. See, e. g., Alford v. State, 307 So. 2d 433, 445 (Fla.1975); Alvord v. State, 322 So. 2d 533, 540-541 (Fla.1975). By following this procedure the Florida Court has in effect adopted the type of proportionality review mandated by the Georgia statute. Cf. Gregg v. Georgia, ante, 428 U.S. 204, 206, 96 S.Ct. pp. 2939-2941. And any suggestion that the Florida Court engages in only cursory or rubber stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it. See p. 2967, supra.

428 U.S. at 258, 96 S. Ct. at 2969-70 (opinion of Stewart, Powell, and Stevens, JJ.). Finally, in responding to the argument that Section 921.141's eighth aggravating circumstance was unconstitutionally vague and overbroad, the Court in Proffitt even mentioned the case of petitioner Spenkelink:

The Supreme Court of Florida has affirmed death sentences in several cases, including the instant case, where this eighth statutory aggravating factor was found, without specifically stating that the homicide was "pitiless" or "torturous to the victim." See, e. g., Hallman v. State, 305 So. 2d 180 (1974) (victim's throat slit with broken bottle); Spinkellink v. State, 313 So. 2d 666 (1975) ("career criminal" shot sleeping traveling companion); Gardner v. State, 313 So. 2d 675 (1975) (brutal beating and murder); Alvord v. State, 322 So. 2d 533 (1975) (three women killed by strangulation, one raped); Douglas v. State, 328 So. 2d 18 (1976) (depraved murder); Henry v. State, 328 So. 2d 430 (1976) (torture murder); Dobbert v. State, 328 So. 2d 433 (1976) (torture and killing of two children). But the circumstances of all of these cases could accurately be characterized as "pitiless" and "unnecessarily torturous," and it thus does not appear that Florida Court has abandoned the definition that it announced in Dixon and applied in Alford, Tedder, and Halliwell.

428 U.S. at 255 n. 12, 96 S. Ct. at 2968 n. 12 (opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added).

Nonetheless, Spenkelink contends that his crime, in comparison to the crimes in other Florida death penalty cases, was insufficiently gruesome or heinous to warrant the death penalty.25 In this regard, the district court stated:Petitioner next claims that the death penalty is being imposed in an arbitrary, capricious, and irrational manner. In support of this contention petitioner points to other cases in which the Florida Supreme Court has commuted death sentences to life imprisonment and claims that his case is no worse than the majority of these and cannot, therefore, be reconciled with them. As the court noted at the beginning of the September 21 hearing, this line of inquiry has apparently been foreclosed by the decision rendered in Proffitt v. Florida, 428 U.S. 242, (96 S. Ct. 2960, 49 L. Ed. 2d 913) (1976) . . . .

Even if this issue had not been previously decided by the United States Supreme Court, petitioner has shown no basis to conclude that the Florida Supreme Court has failed to discharge its statutory duties responsibly. This court has considered the other death cases decided by the Florida Supreme Court and has compared the facts involved in those cases with the facts of petitioner's crime. In those instances where a sentence of death has been reversed by the Florida court, there appear significant mitigating circumstances that serve to fairly distinguish those cases from petitioner's. Thus, the petitioner has not shown anything to indicate that the death penalty has been imposed by the Florida judicial system in an irrational, arbitrary or capricious fashion, and the petitioner cannot prevail on this point.

It was not necessary for the district court to undertake such a case-by-case comparison. This conclusion rests upon which we believe the Supreme Court meant in Proffitt when it found Section 921.141 constitutional "on its face." The Court used the expression only twice. On the first occasion the Court stated that "(o)n their face these procedures (provided for in Section 921.141), like those used in Georgia, appear to meet the constitutional deficiencies identified in Furman." 428 U.S. at 251, 96 S.Ct. at 2966 (opinion of Stewart, Powell, and Stevens, JJ.). On the second occasion the Court stated that "(o)n its face the Florida system thus satisfies the constitutional deficiencies identified in Furman." 428 U.S. at 253, 96 S. Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.). The second quotation implies that on its face Section 921.141 conclusively removes the arbitrariness and capriciousness which Furman held violative of the Eighth and Fourteenth Amendments. If this is so, our concern here in this attack on Section 921.141 as applied would be whether the Florida courts have followed the statute in imposing Spenkelink's death sentence, and a comparison of Spenkelink's case with other Florida death penalty cases would be unnecessary. The first quotation, on the other hand, implies that Section 921.141 only potentially satisfies Furman 's concern for arbitrariness and capriciousness. If this is so, our task in the instant case would be to compare Spenkelink's case with all other Florida death penalty cases in order to determine if Spenkelink was sentenced to death when other convicted murders, equally or more deserving to die, were given life imprisonment.

If this latter interpretation is the correct reading of Proffitt, serious problems arise. First, every criminal defendant sentenced to death under Section 921.141 could through federal habeas corpus proceedings attack the statute as applied by alleging that other convicted murderers, equally or more deserving to die, had been spared, and thus that the death penalty was being applied arbitrarily and capriciously, as evidenced by his own case. The federal courts then would be compelled continuously to question every substantive decision of the Florida criminal justice system with regard to the imposition of the death penalty. The intrusion would not be limited to the Florida Supreme Court. It would be necessary also, in order to review properly the Florida Supreme Court's decisions, to review the determinations of the trial courts. And in order to review properly those determinations, a careful examination of every trial record would be in order. A thorough review would necessitate looking behind the decisions of jurors and prosecutors, as well. Additionally, unsuccessful litigants could, before their sentences were carried out, challenge their sentences again and again as each later-convicted murderer was given life imprisonment, because the circumstances of each additional defendant so sentenced would become additional factors to be considered. The process would be never-ending and the benchmark for comparison would be chronically undefined. Further, there is no reason to believe that the federal judiciary can render better justice. As the Florida Supreme Court itself so candidly admits, see Provence v. State, supra, 337 So.2d at 787, reasonable persons can differ over the fate of every criminal defendant in every death penalty case. If the federal courts retried again and again the aggravating and mitigating circumstances in each of these cases, we may at times reach results different from those reached in the Florida state courts, but our conclusions would be no more, nor no less, accurate. Such is the human condition. Cf. Stone v. Powell, 428 U.S. 465, 493 n. 35, 96 S. Ct. 3037, 3051-3052 n. 35, 49 L. Ed. 2d 1067 (1976) (condemning the respondents' "basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights.").

The Supreme Court in Proffitt, or in Furman, Gregg, Jurek, Woodson, or Roberts, could not have intended these results. We understand these decisions to hold that capital punishment is not unconstitutional per se, and that a state, if it chooses, can punish murderers and seek to protect its citizenry by imposing the death penalty so long as it does so through a statute with appropriate standards to guide discretion. If a state has such a properly drawn statute and there can be no doubt that Florida has which the state follows in determining which convicted defendants receive the death penalty and which receive life imprisonment, then the arbitrariness and capriciousness condemned in Furman have been conclusively removed.26 For us to read these cases otherwise would thrust this Court and the district courts into the substantive decision making of the state court sentencing process which is rightfully reserved to the Florida state judiciary under Section 921.141. Under the Constitution, as well as fundamental notions of federalism and comity, that is not the role of the federal courts. Cf. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).

A review of the record demonstrates dramatically that the Florida state trial court and the Florida Supreme Court performed their unenviable duty of sentencing Spenkelink under Section 921.141 with care and concern.27 Our inquiry must end there. As for Spenkelink's contention that this Court should go further, we think the remarks of Justice White in his concurring opinion in Gregg v. Georgia, supra, 428 U.S. at 226, 96 S. Ct. at 2949 (White, J., concurring), are responsive:

Petitioner's argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment a lesser penalty or are acquitted or never charged seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued in effect that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.

The petitioner's contention is without merit.28

In his second contention Spenkelink asserts that the death penalty under Section 921.141 is being systematically administered so as to induce guilty pleas from defendants charged with capital felonies, which allegedly penalizes exercise by these defendants of their right under the fifth and fourteenth amendments to plead not guilty. According to the petitioner, this has the same effect as the federal statute condemned in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 128 (1968), and thus is unconstitutional.29

Succinctly stated, Spenkelink complains of abuse of discretion. Charles William Proffitt and Troy Gregg had similar complaints. In Proffitt v. Florida, supra, 428 U.S. 254, 96 S.Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.), the Supreme Court responded:

The petitioner first argues that arbitrariness is inherent in the Florida criminal justice system because it allows discretion to be exercised at each stage of a criminal proceeding the prosecutor's decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury's consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive's decision whether to commute a death sentence. As we noted in Gregg, this argument is based on a fundamental misinterpretation of Furman, and we reject it for the reasons expressed in Gregg. See ante, p. 2937.

In Gregg v. Georgia, supra, 428 U.S. at 199, 96 S. Ct. at 2937 (opinion of Stewart, Powell, and Stevens, JJ.), the Court stated:

First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.

The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.

In footnote 50 in Gregg, the Court continued:

The petitioner's argument is nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use. In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.

Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in Woodson v. North Carolina, post, 428 U.S., p. 280, 96 S.Ct. p. 2978, 49 L. Ed. 2d 944 and Roberts v. Louisiana, post, 428 U.S., p. 325, 96 S.Ct. p. 3001, 49 L. Ed. 2d 974. The suggestion that a jury's verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment. In the federal system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve one sentenced to death. U.S.Const., Art. II, § 2.

428 U.S. at 198 n. 50, 96 S. Ct. 2937 n. 50 (opinion of Stewart, Powell, and Stevens, JJ.).

The complaints of prosecutorial discretion in Gregg and Proffitt, as well as in Jurek v. Texas, supra, 428 U.S. at 273, 96 S. Ct. at 2957 (opinion of Stewart, Powell, and Stevens, JJ.), were made and rejected in the context of Furman 's concern for arbitrariness and capriciousness in the imposition of the death penalty. Here, of course, petitioner Spenkelink complains that the discretion approved in Gregg, Proffitt, and Jurek is now being systematically abused. See generally Gregg v. Georgia, supra, 428 U.S. at 225, 96 S. Ct. at 2949 (White, J., concurring). Like the petitioner's argument in Gregg, Spenkelink's argument appears to be "nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use," Gregg v. Georgia, supra, 428 U.S. at 198 n. 50, 96 S. Ct. 2937 n. 50, (opinion of Stewart, Powell, and Stevens, JJ.), which Furman did not. Id. Nevertheless, we cannot say with assurance that the petitioner's allegation was answered in Gregg, Proffitt, or Jurek, so we must look further.

Spenkelink's contention is without merit for several reasons. First, in Florida a defendant may be sentenced to death whether he pleads guilty or not guilty. E. g., Surace v. State, 351 So. 2d 702 (Fla.1977); Thompson v. State, 351 So. 2d 701 (Fla.1977); Lamadline v. State, 303 So. 2d 17 (Fla.1974). United States v. Jackson, supra, therefore, is inapplicable to the petitioner's contention because there the condemned statute provided in effect that a defendant could receive the death penalty only if he pleaded not guilty and went to trial. See note 29 supra and accompanying text. Second, the Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S. Ct. 663, 669, 54 L. Ed. 2d 604 (1978), recently held that plea-bargaining, in which the prosecutor openly presents a defendant with the unpleasant alternatives of pleading guilty to a lesser charge and foregoing trial or pleading not guilty and facing a more serious charge on which he plainly is subject to prosecution, and for which he would receive upon conviction life imprisonment, does not violate the Due Process Clause of the Fourteenth Amendment. The fact that the prosecutor's plea-bargaining tool in Bordenkircher was life imprisonment and in this case it allegedly is the death penalty is a distinction without a difference. Bordenkircher controls the instant case. See, e. g., Montgomery v. Estelle, 5 Cir., 1978, 568 F.2d 457. Finally, it is well settled that a plea bargain is not invalid per se because it is induced by fear of receiving the death penalty or because in agreeing to the plea bargain the defendant averts the possibility of receiving the death penalty. See, e. g., Brady v. United States, 397 U.S. 742, 747, 90 S. Ct. 1463, 1468, 25 L. Ed. 2d 747 (1970). Thus, if Florida prosecutors actually are using the threat of the death penalty under Section 921.141 in their plea-bargaining to induce guilty pleas, the practice is permissible,30 and the petitioner's contention is without merit.31

Spenkelink's third attack on Section 921.141 is that the statute contains unreliable procedures and standards for determining aggravating circumstances. First, the petitioner contends that the indictment alleged no aggravating circumstances, and no other form of notice informing him of the aggravating circumstances on which the State would rely in seeking the death penalty, or which the trial court would consider in imposing it, was given to him prior to the sentencing proceeding. According to the petitioner, this violated his right under Fourteenth Amendment due process and his right under the Sixth and Fourteenth Amendments to be informed of the nature of the charges against him,32 and hindered his preparation for the rebuttal of the aggravating circumstances found in his case. This contention is without merit.

Spenkelink cites no case, federal or state, which requires the prosecutor to list in the indictment the aggravating circumstances on which he will rely in seeking the death penalty. Whether such a requirement exists is an issue we need not reach in this case. A review of the record indicates that neither Spenkelink nor his attorney objected at trial to the indictment, which Fla.R.Crim.P. 3.190(c) requires in order for the alleged defect to be preserved for appellate review.33 Accordingly, the defect, if any, was waived.34 Wainwright v. Sykes, supra; Tennon v. Ricketts, 5 Cir., 1978, 574 F.2d 1243 (1978); St. John v. Estelle, 5 Cir., 1977, 563 F.2d 168 (en banc); Nichols v. Estelle, 5 Cir., 1977, 556 F.2d 1330; Loud v. Estelle, 5 Cir., 1977, 556 F.2d 1326, 1329-30. As for Spenkelink's contention that he had no other notice of the aggravating circumstances on which the State would rely or which the trial would consider, we need only point to Fla.Stat.Ann. § 921.141(5), which defines the aggravating circumstances that may be considered by both judge and jury.

Second, Spenkelink contends that Section 921.141 does not prescribe the standard of proof to govern factual determinations with regard to aggravating circumstances at the sentencing proceeding, and suggests that the Fifth and Fourteenth Amendments require that the appropriate standard be beyond a reasonable doubt. The Florida Supreme Court agrees, as evidenced by its holding in 1973 in State v. Dixon, supra, 283 So.2d at 9:

The aggravating circumstances of Fla.Stat. § 921.141(6) (sic ), F.S.A., actually define those crimes when read in conjunction with Fla.Stat. §§ 782.04(1) and 794.01(1), F.S.A. to which the death penalty is applicable in the absence of mitigating circumstances. As such, they must be proved beyond a reasonable doubt before being considered by judge or jury.

In accordance with Dixon, the trial court instructed the jury at Spenkelink's sentencing proceeding:

Aggravating circumstances must be established beyond a reasonable doubt before they may be considered by you in arriving at your decision. Proof of an aggravating circumstance beyond a reasonable doubt is evidence by which the understanding, judgment and reason of the jury are well satisfied and convinced to the extent of having a full, firm and abiding conviction that the circumstance has been proved to the exclusion of and beyond a reasonable doubt. (emphasis added)

The petitioner's contention is therefore without merit.

Finally, Spenkelink contends that the aggravating circumstance set forth in Fla.Stat.Ann. § 921.141(5)(h), that "(t)he capital felony was especially heinous, atrocious, or cruel," is vague and overbroad in violation of Fourteenth Amendment due process. In Proffitt v. Florida, supra, 428 U.S. at 255, 96 S. Ct. at 2967-68 (opinion of Stewart, Powell, and Stevens, JJ.), the Supreme Court stated:

(T)he petitioner asserts that the enumerated aggravating and mitigating circumstances are so vague and so broad that "virtually any first degree murder convict (is) a candidate for a death sentence." In particular, the petitioner attacks the eighth and third statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is "especially heinous, atrocious, or cruel," or if "(t)he defendant knowingly created a great risk of death to many persons." § 921.141(5)(h), (c) (Supp.1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.

(5) That Court has recognized that while it is arguable "that all killings are atrocious, . . . (s)till we believe that the Legislature intended something 'especially' heinous, atrocious, or cruel when it authorized the death penalty for first degree murder." Tedder v. State, 322 So. 2d 908, 910 (Fla.1975). As a consequence, the Court has indicated that the eighth statutory provision is directed only at "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So. 2d 1, 9 (Fla.1973). See also Alford v. State, 307 So. 2d 433, 445 (Fla.1975); Halliwell v. State, 323 So. 2d 557, 561 (Fla.1975). We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Gregg v. Georgia, ante, 428 U.S. pp. 200, 203, 96 S.Ct. p. 2938.

Nonetheless, the petitioner points out that the Court in Proffitt examined the claims of vagueness and overbreadth of the statutory aggravating circumstances "only insofar as it is necessary to determine whether there is a substantial risk that the Florida capital-sentencing system, when viewed in its entirety, will result in the capricious or arbitrary imposition of the death penalty," and thus violate the prohibition under the Eighth and Fourteenth Amendments of cruel and unusual punishment. 428 U.S. at 254 n.11, 96 S. Ct. at 2967 n.11 (opinion of Stewart, Powell, and Stevens, JJ.). See Gregg v. Georgia, supra, 428 U.S. at 201 n.51, 96 S. Ct. at 2938 n.51 (opinion of Stewart, Powell, and Stevens, JJ.). In the instant case, the petitioner contends, his vagueness and overbreadth challenges are made through the Due Process Clause of the Fourteenth Amendment. A review of the record indicates that Spenkelink's allegations of vagueness and overbreadth do not appear in his habeas corpus petition, and therefore were not argued to the district court on the basis of any constitutional amendment. Rather than dismiss his contentions summarily, as we ordinarily would do, only to have them resurface again through another habeas petition, we have decided in the interest of time and judicial economy to address them on their merits.

In State v. Dixon, supra, the Florida Supreme Court, in holding constitutional Fla.Stat.Ann. §§ 775.082, 782.04, and 921.141, see note 23 supra, also considered the certified question of whether the aggravating circumstance in Section 921.141 (5)(h) is so "vague, indefinite and uncertain," 283 So. 2d at 3, as to violate, inter alia, Fourteenth Amendment due process. The court answered this question in the negative:

The aggravating circumstance which has been most frequently attacked is the provision that commission of an especially heinous, atrocious or cruel capital felony constitutes an aggravated capital felony. Fla.Stat. § 921.141(6)(h), F.S.A. Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

283 So.2d at 9. This definition has been followed repeatedly by the Florida Supreme Court. See, e. g., Proffitt v. Florida, supra, 428 U.S. at 255 n.12, 96 S. Ct. at 2968 n.12 (opinion of Stewart, Powell, and Stevens, JJ.); Halliwell v. State, supra, 323 So.2d at 561; Tedder v. State, supra, 322 So.2d at 910; Alford v. State, 307 So. 2d 433, 444-45 (Fla.1975). Nothing in Smith v. Goquen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); or Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 (1937), the cases cited by the petitioner in support of his vagueness and overbreadth contentions, persuades us that the Florida Supreme Court is in error. We agree on Fourteenth Amendment due process grounds with the United States Supreme Court in Proffitt that Section 921.141(5)(h), as construed by the Florida Supreme Court, provides adequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Proffitt v. Florida, supra, 428 U.S. at 255, 96 S. Ct. at 2968 (opinion of Stewart, Powell, and Stevens, JJ.). The contentions that Section 921.141(5)(h) are vague and overbroad are therefore without merit.35 See, e. g., the cases cited in Grayned v. City of Rockford, 408 U.S. 104, 108 n.4, 92 S. Ct. 2294, 2299 n.4, 33 L. Ed. 2d 222 (1972); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).

Spenkelink's next contention is that the death penalty under Section 921.141 is being applied in a discriminatory fashion against defendants convicted of murdering whites, as opposed to blacks, in violation of the prohibition under the Eighth and Fourteenth Amendments of cruel and unusual punishment and in violation of Fourteenth Amendment equal protection.36 Spenkelink's contention appears to be that Florida prosecutors, jurors, trial judges, and supreme court justices value black lives less than they do white lives, and thus are more likely to seek, recommend, impose, and affirm the imposition of the death penalty when a defendant murders a white victim.

During the evidentiary hearing below the petitioner introduced evidence through an expert witness that, although the estimated number of black felony murder victims and white felony murder victims for 1973-1976 is the same, 92 per cent of the inmates on Florida death row had murdered white victims, while only 8 per cent had murdered black victims. The State responded by arguing, inter alia, that murders involving black victims have, in the past, generally been qualitatively different from murders involving white victims; as a general rule, the State contended, murders involving black victims have not presented facts and circumstances appropriate for imposition of the death penalty.37 The State also challenged the accuracy and reliability of the methodology used by the petitioner's expert witness. Many of these imperfections the witness himself admitted. For example, he conceded that factors other than race could have caused the disparate figures:

Q. With regard to the conclusions that you have reached that there is a variance of black victims and white victims as to who gets the electric chair in Florida. What are the other variables?

A. I don't understand your question, Mr. Shevin.

Q. Well, for instance, would the prosecutorial discretion as to what charges be filed, would that be relevant?

A. Sure.

Q. And would the prosecutor's decision as to whether or not to take the case to the Grand Jury be a relevant variable?

A. Well, as I testified, I have no knowledge of the process that stands between the arrest and the final disposition, and that is exactly the thing one should explore in order to find out how these differences come about. All I have is the final difference.

Q. So in analyzing what happens from the arrest to the final judgment, your rule could be affected, could they not, by decisions of whether or not to prosecute?

A. Oh, sure. I said that.

Q. And it could be affected by what verdicts the juries returned?

A. Could, although my guess yes, it could, sure. I said it could be affected at all stages, Mr. Shevin.

Q. And it could be affected by whether the defendant pleads guilty or not?

A. If this if this I if this saves many people, I have I have seen .Q. Can it be affected by whether the prosecutor is asking for the death penalty, could it not?

A. I said so.

Q. All right. And it could be affected by the elements of aggravation and mitigation that are set forth in the Florida statutes?

A. Of course.

The witness also was unable to point to any defendant convicted of first degree murder for killing a black who, under the facts and circumstances of the case, should have received the death penalty but did not. Nevertheless, petitioner Spenkelink contends that he has made a prima facie case of racial discrimination in the imposition of the death penalty in Florida, and that we should remand his case to the district court for additional evidentiary proceedings to provide him the opportunity to present further evidence.

Assuming for the sake of argument that the petitioner's statistics are accurate, his contention must fail as a matter of law on both of the constitutional grounds relied upon. The allegation that Florida's death penalty is being discriminatorily applied to defendants who murder whites is nothing more than an allegation that the death penalty is being imposed arbitrarily and capriciously, a contention we previously have considered and rejected. To allege discriminatory application of the death penalty, as meant in the context of this case, is to argue that defendants who have murdered whites have received the death penalty when other defendants who have murdered blacks, and who are equally or more deserving to die, have received life imprisonment. In order to ascertain through federal habeas corpus proceedings if the death penalty had been discriminatorily imposed upon a petitioner whose murder victim was white, a district court would have to compare the facts and circumstances of the petitioner's case with the facts and circumstances of all other Florida death penalty cases involving black victims in order to determine if the first degree murderers in those cases were equally or more deserving to die. The petitioner thus requests the same type of case-by-case comparison by the federal judiciary that we have previously rejected in considering the petitioner's contention that Florida's death penalty is being imposed arbitrarily and capriciously. We need not repeat the myriad of difficult problems, legal and otherwise, generated by such federal court intrusion into the substantive decision making of the sentencing process which is reserved to the Florida state courts under Section 921.141. As we previously noted, this Court reads Furman, Gregg, Proffitt, Jurek, Woodson, and Roberts as holding that if a state follows a properly drawn statute in imposing the death penalty, then the arbitrariness and capriciousness and therefore the racial discrimination condemned in Furman38 have been conclusively removed.39 Florida has such a statute and it is being followed. The petitioner's contention under the Eighth and Fourteenth Amendments is therefore without merit.40

Spenkelink also raises his claim under Fourteenth Amendment equal protection. He concedes that Section 921.141 is facially valid and neutral with respect to race. He contends nonetheless that the administration of the statute has resulted in "dramatic racial inequity," Petitioner's Brief at 36, which allegedly violates equal protection.

The petitioner's suggestion that a violation of equal protection is proved by a showing of disparity in the race of first degree murder victims, which allegedly results from the administration of a facially valid and neutral statute, ignores the holdings of two recent United States Supreme Court opinions. In Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), the Court held that a District of Columbia Metropolitan Police Department entrance examination designed to test verbal ability, vocabulary, reading, and comprehension did not violate Fourteenth Amendment equal protection, even though the examination had a racially disproportionate impact in that far more blacks than whites failed to pass it. In so holding, the Court noted that while "(t)he central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race," prior Court decisions "have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." 426 U.S. at 239, 96 S.Ct. at 2047 (emphasis in original). The Court also stated:

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.

426 U.S. at 242, 96 S. Ct. at 2049. A year later, in Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, the Court held that the refusal of the Village of Arlington Heights to rezone a tract of land in order to allow the Metropolitan Housing Development Corporation to build racially integrated low and moderate income housing did not violate Fourteenth Amendment equal protection, because the Village's rezoning denial was motivated not by racial discrimination but by its desire to protect property values and maintain its zoning plan. The Court relied on Washington v. Davis, supra, in announcing that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact," and that "(p)roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." 429 U.S. at 265, 97 S.Ct. at 563.

Assuming for the sake of discussion that Section 921.141 does have a racially disproportionate impact with respect to the race of first degree murder victims, Washington v. Davis, supra, and Arlington Heights mandate that the petitioner's equal protection challenge must fail, because the discrimination is explainable on nonracial grounds. Florida offered credible evidence, evidently believed by the district court, that murders involving black victims generally have been qualitatively different from murders involving white victims. The petitioner's own expert witness also testified that factors other than race could have caused the disparate figures, and could single out no defendant convicted of first degree murder for killing a black who, under the facts and circumstances of the case, should have received the death penalty instead of life imprisonment. The petitioner's witness testified further that he found no evidence of intentional or purposeful discrimination; "I'm far from suggesting," he stated, "that there is any deliberate effort anywhere in the system to achieve this goal (of racially disproportionate impact)." In sum, this is not a case in which a petitioner proved a prima facie case of discrimination that the state could not rebut. Compare, e. g., Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). This is a case in which the State, with the assistance of the petitioner's own expert witness, provided several lawful explanations totally unrelated to race for the racially disproportionate impact of its statute.41 Stated otherwise, it is a case in which the petitioner could not prove racially discriminatory intent or purpose as required by Washington v. Davis, supra, and Arlington Heights. See Nevette v. Sides, 5 Cir., 1978, 571 F.2d 209. Spenkelink's challenge to Section 921.141 on the basis of Fourteenth Amendment equal protection is therefore without merit as a matter of law.

The petitioner's fifth contention is that electrocution, which is Florida's method of carrying out a sentence of capital punishment, see Fla.Stat.Ann. § 922.10, is unnecessarily torturous and wantonly cruel and therefore constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Supreme Court has previously considered this assertion in In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890), quoted in Gregg v. Georgia, supra, 428 U.S. at 170, 96 S. Ct. at 2924 (opinion of Stewart, Powell, and Stevens, JJ.), where the Court held that a New York statute providing for electrocution as the method of carrying out a sentence of capital punishment was constitutional. The Court stated:

Undoubtedly the (fourteenth) amendment forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights; and, in the administration of criminal justice, requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses. But it was not designed to interfere with the power of the state to protect the lives, liberties, and property of its citizens, and to promote their health, peace, morals, education, and good order. Barbier v. Connolly, 113 U.S. 27, 31, 5 S. Ct. 357, 28 L. Ed. 923. The enactment of this statute was, in itself, within the legitimate sphere of the legislative power of the state, and in the observance of those general rules prescribed by our systems of jurisprudence; and the legislature of the state of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the state has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process of law.

136 U.S. at 448-49, 10 S. Ct. at 934. Accord, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947), quoted in Gregg v. Georgia, supra, 428 U.S. at 170, 96 S. Ct. at 2924 (opinion of Stewart, Powell, and Stevens, JJ.). See generally Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978) (execution by intravenous injection of lethal substance is not cruel and unusual punishment). The petitioner's contention is therefore without merit.

The petitioner, an indigent male, contends finally that the death penalty under Section 921.141 is being applied in a discriminatory fashion against males and poor persons in violation of the Equal Protection Clause of the Fourteenth Amendment. Although the petitioner asserts his claim under the guise of Fourteenth Amendment equal protection, closer examination reveals that at its core lies the charge of arbitrary and capricious conduct. Male and indigent murderers, the petitioner in effect contends, have in Florida received the death penalty under Section 921.141, while women and nonindigent murderers, equally or more deserving to die, have received life imprisonment. For reasons that we have already detailed at length, the contention that the death penalty under Section 921.141 is being applied arbitrarily and capriciously must fail as a matter of law except under exceptional circumstances.42 Accordingly, the petitioner's contention is meritless.C. Florida's Clemency Procedures

The petitioner's next contention is that the Florida Rules of Executive Clemency violate the Due Process Clause of the Fourteenth Amendment. We do not agree.

Article IV, section 8(a) of the Florida Constitution provides that "(e)xcept in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, . . . and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses." The governor and the cabinet of Florida, "in order to assist in the orderly and expeditious exercise of this clemency power," Fla.R.Exec. Clemency 2, established by executive order the Florida Rules of Executive Clemency, which are set forth in Appendix B of our opinion. The procedures provided for in these rules are detailed and comprehensive:

(T)he newly devised death sentence review process operates very much like all other administrative processes in the executive branch of Florida's government. The rules adopted for this purpose establish an "Office of Executive Clemency" headed by a "coordinator" and staffed by assistants. A "proper record" of all proceedings is maintained. Precise steps for review are prescribed, channeled by precise time frames, and the process once triggered requires (i) a hearing examiner to take written or oral testimony, (ii) an informal evidentiary proceeding, (iii) a required report to be filed by the hearing examiner within 60 days, (iv) a required hearing before the Governor and cabinet, (v) notice to applicants' attorneys and to counsel for the state, (vi) authority for both counsel to file "exceptions, briefs or memoranda" concerning the examiner's report, (vii) a prohibition against direct communications to the Governor or any cabinet member during the pendency of the proceedings, and (viii) a public explanation for granting or not granting clemency.

Sullivan v. Askew, 348 So. 2d 312, 318 (Fla.) (England, J., concurring), cert. denied, 434 U.S. 878, 98 S. Ct. 232, 54 L. Ed. 2d 159 (1977). Their constitutionality has been reviewed and upheld by the Florida Supreme Court. Sullivan v. Askew, supra.

Spenkelink contends nonetheless that these procedures are fundamentally unfair and violate Fourteenth Amendment due process because they allegedly (1) denied him an impartial tribunal because the state attorney general who defended his death sentence in the courts sits as a member of the cabinet and reviews death sentences, (2) denied him the privilege of personally attending the hearing conducted by the governor and cabinet, (3) denied him disclosure of the evidence relied upon by the Florida Parole and Probation Commission in reaching an adverse recommendation with respect to his clemency, which was forwarded to the governor and cabinet, and (4) denied him notice of the standards and criteria followed by the governor and cabinet in reaching their clemency decisions. The issues presented by the petitioner, therefore, are whether the Due Process Clause of the Fourteenth Amendment applies to clemency decisions by the governor and cabinet of Florida, and, if so, whether the Rules of Executive Clemency comport with the standards of procedural due process. Our answer to the first question renders unnecessary our consideration of the second.

In Sullivan v. Askew, supra, the Florida Supreme Court addressed the constitutionality of the Rules of Executive Clemency. The court held that the petitioner's complaint, which raised the same contentions as Spenkelink raises here, failed to state a cause of action because "the clemency power is exclusively in the executive branch." 348 So. 2d at 314. The court relied heavily on the doctrine of separation of powers and cited with approval its opinion in Ex parte White, 131 Fla. 83, 178 So. 876 (1938), which declared a state legislative enactment unconstitutional because it was "in conflict with and in derogation of the constitutionally established execution (sic ) power of clemency." 348 So. 2d at 316. "This prohibition against legislative encroachment upon the executive's clemency power," stated the court in Sullivan, "is equally applicable to the judiciary." Id.

The opinion in Sullivan, while instructive and well reasoned, is not dispositive, because it is unclear whether the justices were relying on the Florida Constitution or the United States Constitution. Our inquiry, of course, involves the latter. Two other decisions, both by the United States Supreme Court and both involving federal constitutional law, provide us further guidance. In Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974), the Supreme Court turned away the petitioner's challenge to the president's pre-Furman clemency decision in his case. The Court held that the president, acting under article II, section 2, clause 1 of the United States Constitution, which provides in part that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment," could commute a prisoner's sentence from death to life imprisonment, subject to the condition that he would not thereafter be eligible for parole. Chief Justice Burger, writing for the Court, delved into the historical origins of the president's clemency power, and then wrote a thoughtful analysis of the limits of that power. The Chief Justice concluded:

A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl. 1, was to allow plenary authority in the President to "forgive" the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. . . . We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.

419 U.S. at 266-67, 95 S. Ct. at 385. Schick, therefore, stands for the proposition that the substantive discretion of the president in the exercise of his clemency power is all but absolute.

In Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not entitle "a state prisoner to a hearing when he is transferred to a prison the conditions of which are substantially less favorable to the prisoner, absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of other events." 427 U.S. at 216, 96 S.Ct. at 2534. The Court found that such transfers do not infringe or implicate a "liberty" interest within the meaning of the Due Process Clause, because "given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and . . . subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution." In short, "(t)he conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons." 427 U.S. at 224, 96 S.Ct. at 2538. To hold otherwise, stated the Court, "would place the (Due Process) Clause astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges." 427 U.S. at 228, 96 S.Ct. at 2540.43 Accord, Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976).

Schick and Meachum compel us to reject Spenkelink's contention. Meachum indicates that the clemency decision of the governor and cabinet of Florida did not infringe or implicate any interest protected by the Due Process Clause. As we have already held, Spenkelink was constitutionally sentenced to die upon affirmance of his sentence by the Florida Supreme Court. That affirmance empowered the State then to execute him. See Cruz v. Skelton, 5 Cir., 1976, 543 F.2d 86, 89, cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977); Brown v. Lundgren, 5 Cir., 528 F.2d 1050, 1052-53, cert. denied, 429 U.S. 917, 97 S. Ct. 308, 50 L. Ed. 2d 283 (1976); Hoffa v. Saxbe, D.D.C., 1974, 378 F. Supp. 1221, 1245. But it did not. The governor and cabinet, pursuant to established procedures, wisely chose to consider whether the petitioner was entitled to mercy. See Gregg v. Georgia, supra, 428 U.S. at 200 n.50, 96 S. Ct. at 2937 n. 50 (opinion of Stewart, Powell, and Stevens, JJ.). (A capital punishment system devoid of executive clemency "would be totally alien to our notions of criminal justice."). This Court is not prepared to hold that in so choosing Florida's executive branch triggered the requirements of Fourteenth Amendment procedural due process.44 To hold otherwise would involve both the federal and state judiciaries in issues and discretionary decisions which, as Schick v. Reed, supra, intimates, are not the business of judges. See Solesbee v. Balkom, 339 U.S. 9, 70 S. Ct. 457, 94 L. Ed. 604 (1950); Sullivan v. Askew, supra. Cf. United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).45 The petitioner's contention is therefore without merit.

The petitioner's next contention is that the admission of one of his custodial statements into evidence at trial violated his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments as defined in Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A review of the record indicates that neither the petitioner nor his attorney objected at trial to the admission of the statement. Fla.R.Crim.P. 3.190(i) requires such a contemporaneous objection in order to preserve the matter for appellate review.46 We agree with the Florida Supreme Court, Spenkelink v. State, supra, 350 So.2d at 85, that this situation falls squarely within the holding of Wainwright v. Sykes, supra. No cause or prejudice having been shown, the objection was waived. See Tennon v. Ricketts, supra; St. John v. Estelle, supra; Nichols v. Estelle, supra; Loud v. Estelle, supra, 556 F.2d at 1329-30.

Spenkelink has submitted a post-argument brief in which he contends that Florida's Section 921.141 is unconstitutional under the recent United States Supreme Court holding in Lockett v. Ohio, --- U.S. ----, 98 S. Ct. 2954, 57 L.Ed.2d 973(1978). In Lockett the Court held "that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 98 S. Ct. at 2965 (plurality opinion) (emphasis in original). On the basis of language in Cooper v. State, 336 So. 2d 1133, 1139 (Fla.1976),47 Spenkelink contends that Section 921.141 impermissibly limits the mitigating factors which the judge and jury can consider in assessing the death penalty, and therefore must be declared unconstitutional. We disagree.

When the Supreme Court in Proffitt v. Florida, supra, first approved the constitutionality of Florida's death penalty statute, it stated that Section 921.141 contains no limiting language with respect to the mitigating circumstances that the judge and jury can consider. In footnote 8 of their Proffitt opinion, Justices Stewart, Powell, and Stevens said:

In one case the Florida Court upheld a death sentence where the trial judge had simply listed six aggravating factors as justification for the sentence he imposed. Sawyer v. State, 313 So. 2d 680 (1975). Since there were no mitigating factors, and since some of these aggravating factors arguably fell within the statutory categories it is unclear whether the Florida Court would uphold a death sentence that rested entirely on nonstatutory aggravating circumstances. It seems unlikely that it would do so since the capital-sentencing statute explicitly provides that "(a)ggravating circumstances shall be limited to the following (eight specified factors.)." § 921.141(5) (Supp.1976-1977). (Emphasis added.) There is no such limiting language introducing the list of statutory mitigating factors. See § 921.141(6) (Supp.1976-1977). See also n. 14 infra.

Proffitt v. Florida, supra, 428 U.S. at 250 n. 8, 96 S. Ct. at 2965-66 n. 8 (opinion of Stewart, Powell, and Stevens, JJ.). Justice White, joined by Chief Justice Burger and Justice Rehnquist, accepted this interpretation of the Florida statute. Id., 428 U.S. at 260, 96 S. Ct. at 2970 (White, J., concurring). Later, in Lockett, the Court reaffirmed the constitutionality of Florida's Section 921.141:

Although the Florida statute approved in Proffitt contained a list of mitigating factors, six members of this Court assumed, in approving the statute, that the range of mitigating factors listed in the statute was not exclusive. . . . None of the statutes we sustained in Gregg and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor.

Lockett v. Ohio, supra, 98 S.Ct. at 2966 (plurality opinion). The Ohio statute, noted the Court, is "significantly different," and therefore must fall. Id. It is unmistakably clear from this language in Lockett that the Court still views Gregg v. Georgia, supra, and the companion cases, one of which was Proffitt v. Florida, supra, as sound law. The conclusion is inevitable that the Court continues to view Section 921.141 as constitutional, as it did in 1976 when it decided Proffitt. Obviously, we are without power or authority to overrule the express finding of the Supreme Court.

The Court's language in Lockett, to the effect that when Proffitt was decided, Section 921.141 did not "at that time . . . prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitgating factor," Lockett v. Ohio, supra, 98 S.Ct. at 2966 (plurality opinion), is also important. Cooper v. State, supra, the case relied upon by Spenkelink, was not decided until July 8, 1976. Spenkelink was sentenced on December 20, 1973, and his conviction affirmed by the Florida Supreme Court on February 19, 1975. At the time of the sentencing proceeding, Spenkelink was afforded, and exercised, without limitation, every opportunity to set forth any and all mitigating factors in his favor. He contended, for example, that he should not receive the death penalty because his killing of Szymankiewicz was in self-defense, though that defense is not one of the mitigating circumstances expressly set forth in Section 921.141(6). Moreover, the trial court instructed the jury that, in addition to the evidence presented at the sentencing hearing, it was to consider also the evidence presented at trial. The mitigating circumstance of provocation, possibly resulting from the alleged episodes of homosexuality and "Russian roulette," see note 3 supra, was thus before the jury and the judge, even though provocation also is not one of the mitigating circumstances expressly mentioned in Section 921.141(6). A reading of the transcript of the sentencing hearing therefore indicates that the hearing was full, fair, and thoroughly complete. We find no merit to the post-argument contention of the petitioner.

After considering each of the petitioner's contentions and finding them to be without merit, we agree with the district court's denial of a writ of habeas corpus and accordingly affirm that judgment.

AFFIRMED.