After an extensive history of direct and collateral review on a variety of issues, this case comes before us after the denial by the district court of petitioner's second federal habeas petition as successive. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 9(b). This case was voted en banc on a motion of the panel that heard and granted petitioner's motion for stay of execution. Finding that this petition does allege and that this record does establish new and different grounds for relief and that petitioner could not have presented such in the prior proceeding, we VACATE the judgment of the district court and REMAND with instructions to grant the writ in accordance with this opinion.

During proceedings held in late January, 1985, the state trial judge made statements, for the first time, indicating that he interpreted Florida Statute Sec. 921.141(6) at the time of petitioner's trial as limiting consideration of mitigating evidence to those "enumerated items." This was followed by statements reflecting that in sentencing petitioner he thus did not give consideration to any evidence dealing with nonstatutory mitigation. This violates the dictates of Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S. Ct. 869, 876, 71 L. Ed. 2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). At the same hearing on petitioner's second state 3.850 motion, that court also indicated that Lockett had never been held explicitly retroactive in its application. There is no doubt today about this question. Lockett is retroactive, see e.g., Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S. Ct. 869, 878, 71 L. Ed. 2d 1 (1982); Jordan v. Arizona, 438 U.S. 911, 98 S. Ct. 3138, 57 L. Ed. 2d 1157 (1978); Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981).

The fact that the Florida Supreme Court has now held that neither the wording of the Florida Statute nor its prior decisions precluded the introduction of nonstatutory mitigating evidence, Songer v. State, 463 So. 2d 229 (Fla.1985), relying on Songer v. State, 365 So. 2d 696 (Fla.1978), is not controlling in the instant matter. That court has recognized that the law could have been so "misconstrued." See Perry v. State, 395 So. 2d 170, 174 (Fla.1981); Jacobs v. State, 396 So. 2d 713, 718 (Fla.1981). The critical and dispositive fact here is that the state trial judge did misinterpret the law and thus failed to consider any nonstatutory mitigation at the time of imposing the sentence of death. Although that sentence was vacated, Songer v. Florida, 430 U.S. 952, 97 S. Ct. 1594, 51 L. Ed. 2d 801 (1977), due to a Gardner violation, upon resentencing the state trial judge limited petitioner to reviewing and rebutting the presentence investigation report. Consequently, it is clear that the state sentencing judge refused to give any consideration to nonstatutory mitigating evidence at either the first or second sentencing proceedings. The interests of justice require that this be corrected.

The district court's denial of the writ of habeas corpus relief is reversed as to the death penalty. The petitioner is entitled to a new sentencing hearing by the sentencing judge at which he should be allowed to introduce any and all evidence in mitigation of the reimposition of a sentence of death. As discussed above, the state sentencing judge should then consider all relevant evidence in the total record and sentence petitioner in accordance with Florida law.1

The case is REMANDED to the district court for the entry of an appropriate writ. The clerk is instructed to issue the mandate immediately and simultaneously with the mandate in case number 83-3500.

CLARK, Circuit Judge, concurring in part and dissenting in part, in which KRAVITCH, JOHNSON and ANDERSON, Circuit Judges join:

I concur in the majority's decision that the state trial judge's decision to limit consideration of mitigating evidence to the specifically enumerated mitigating circumstances violated the dictates of Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S. Ct. 869, 876, 71 L. Ed. 2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). However, I cannot agree with the majority's conclusion that "there was no constitutional infirmity in the jury proceedings in the original sentencing process...." Majority Opinion, at 1489, n. 1. This conclusion ignores the reality of the state of mind of the prosecutor, the defense counsel, the trial judge and the jury with respect to the meaning of the Florida death penalty statute at the time of Songer's capital sentencing proceeding in 1974. The effect of their combined perception resulted not only, as the majority acknowledges, in the trial judge's failure to consider non-statutory mitigating evidence, but also in counsel's failure to develop or present non-statutory mitigating evidence and instructions that prevented the jury from considering such evidence.

Because state law operated to restrict the consideration of mitigating evidence by both the sentencing judge and the advisory jury in this case, the death sentence should not be reimposed unless the jury is allowed to perform its critical role in the sentencing process1 consistent with the dictates of the Eighth Amendment. Accordingly, I respectfully dissent from the majority opinion.

I. The Jury Proceeding at the Penalty Phase of Songer's Trial

A. Mitigating Evidence not Presented to the Jury

At the sentencing hearing, one of the first under the then new Florida statute, Songer was the sole witness in his own behalf. He answered several questions about his drug use and the non-violent nature of his previous crimes, but defense counsel presented no evidence other than this testimony. There was available, at the time, expert testimony that could have explained the influence of Songer's drug addiction, along with lay testimony confirming the effects of drug use upon the petitioner. The questions regarding prior crimes never touched on Songer's prospects for rehabilitation, a fact that could have been placed into evidence through an existing Texas parole report which described Songer as non-violent and a good candidate for rehabilitation.

Furthermore, none of the evidence at sentencing related to Songer's character despite the fact that many family members were present at trial to testify for him. Songer's wife could have testified about his usually passive temperament and the fact that he had a two-year-old son. His parents were present and could have described his childhood and general character. Several uncles and cousins were available for testimony about such matters as Songer's training in brickmasonry and carpentry. One of the uncles worked as a highway patrolman, the same occupation as the victim.

These omissions were not the product of a tactical choice by Songer's counsel, as held by the federal district court on the first petition.2 Rather, the omissions were a result of the perception of Florida law shared by Songer's counsel and the trial judge. The statements made by the trial judge, contained in the opinion referred to by the majority, do not even suggest that he concluded that consideration of statutory mitigating circumstances was limited to the court's sentencing function. Rather he indicated that prior to trial he studied the statute and determined that non-statutory mitigating evidence was not to be considered by the jury.3 He stated that he thought the "Penalty Proceeding Jury Instructions should 'track the statute'...." Mem. op. at 5 (Fla.Cir.Ct. Jan. 27, 1985). He then went on to say, "[t]he evidence and testimony proffered at the Post-Conviction hearing indicated there was evidence at the time of the Songer trial that could be presented as mitigating circumstances under present case and statutory law...." Mem. op. at 6.

The only reasonable conclusion that can be drawn from this is that not only did the trial judge restrict his consideration in sentencing to only statutory mitigating circumstances but that had Songer's counsel proffered non-statutory mitigating evidence for jury consideration, he would not have admitted it. His opinion states as much. Furthermore, the instruction given to the jury by his own admission was intended to limit their consideration to only the mitigating circumstances enumerated in the statute. The instruction given at the penalty phase of Songer's trial stated "[m]itigating circumstances by statute are," then listed the items contained in Fla.Stat.Ann. Sec. 921.141 (1975).

The verdict forms given to the jury to sign when it reached its conclusion as to the appropriate penalty are also illuminating. The two forms, one if the jury recommended life, the other if the jury recommended the death penalty read:

We, the Jury, having heard the evidence under the sentencing procedure in the above case, as to whether aggravating circumstances which were so defined in the Court's charge, existed in the capital offense here involved, and whether sufficient mitigating circumstances as defined in the Court's charges to outweigh such aggravating circumstances, do find and advise that the mitigating circumstances do outweigh the aggravating circumstances. We therefore advise the Court that a life sentence should be imposed herein upon the defendant by the Court, dated this blank day of blank, 1974, and a place for the foreman to sign. (emphasis added).

We, the Jury, having heard evidence under the sentencing procedure in the above case, as to whether aggravating circumstances which are so defined in the Court's charge, existed in the capital offense here involved and whether sufficient mitigating circumstances as defined in the Court's charge to outweigh such aggravating circumstances, do find and advise that the aggravating circumstances do outweigh the mitigating circumstances. We therefore advise the Court that a death sentence should be imposed herein upon the defendant by the Court, dated this blank day of blank, 1974, and a place for the foreman to sign. (emphasis added).

In addition to the trial judge's statements regarding what he believed the law to be regarding mitigating evidence at the time, as well as the instructions he gave and the verdict forms he utilized, we have Songer's counsel's testimony. He testified at a state post-conviction evidentiary hearing that he had not offered character or other mitigating evidence because he believed at the time that only evidence relevant to the statutory mitigating circumstances was admissible. He stated:

The only recollection that I have is that the statute was new at that time, ... going over the statutory grounds with him for aggravating circumstances and mitigating circumstances, and what would be available to us under the statutory language and what would be against us under the statutory language.... [I examined] all the factors we had available to us. R.II, at 379. (footnote omitted).4

The district court in Songer's first federal habeas petition, in determining that trial counsel Coniglio was not ineffective, concluded, "it is quite possible that [Coniglio] may have been laboring under the reasonable, but mistaken, belief that he could not introduce any nonstatutory factors." Songer v. Wainwright, 571 F. Supp. 1384 (M.D.Fla.1983).5

Of course, neither the state trial judge's nor Songer's counsel's construction of the Florida statute was unfounded. Quite the contrary, theirs was the most reasonable interpretation of Florida law at the time. The new Florida death penalty statute was passed and became effective in December of 1972, shortly after the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). The wording of the statute itself is logically interpreted consistently with their view; at least, the statute is very ambiguous.6 The Florida Supreme Court's subsequent rulings verified their conclusions. The Florida Supreme Court first construed the statute in State v. Dixon, 283 So. 2d 1 (Fla.1973).7 That court in describing the statute stated:

The Legislature has, ... provided a system whereby the possible aggravating and mitigating circumstances are defined, but where the weighing process is left to the carefully scrutinized judgment of jurors and judges.

283 So.2d at 7.

The most important safeguard presented in Fla.Stat. Sec. 921.141, F.S.A., is the propounding of aggravating and mitigating circumstances which must be determinative of the sentence imposed.

283 So.2d at 8.

Finally, before discussing each mitigating circumstance enumerated in the statute, the court said:

When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla.Stat. Sec. 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.

283 So.2d at 9.

The reasonableness of the trial judge's and Songer's counsel's view of the statute was further born out in Cooper v. State, 336 So. 2d 1133 (Fla.1976). The Florida Supreme Court in Cooper stated:The sole issue in a sentencing hearing under Section 921.141 ... is to examine in each case the itemized aggravating and mitigating circumstances. Evidence concerning other matters have [sic] no place in that proceeding.... The Legislature chose to list the mitigating circumstances which it judged to be reliable ..., and we are not free to expand the list.

Thus, the majority's conclusion that there was no error in the jury sentencing phase of Songer's trial is not supported by the record in this case. However, the error was not due to the fault of either the trial judge or Songer's counsel. Florida law, as reasonably and logically construed by both, operated to preclude non-statutory mitigating evidence.

C. The Independent Significance of the Jury Instructions

Even if counsel had not felt constricted in his presentation of evidence, the effect of the trial judge's instructions rendered the sentencing proceeding unconstitutional and are an independent reason why the jury's recommendation was reached in a manner contrary to Lockett, supra.9

As was stated previously, the instructions improperly limited the jury's consideration of mitigating evidence. In Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S. Ct. 2021, 72 L. Ed. 2d 474 (1982), the court held that jury instructions improperly restricted the consideration of mitigating evidence because the trial court had instructed the jury to "consider the following elements of mitigation," had read the list of the statutory mitigating factors, and then had given this description of the jury's task, "[If you find] one or more of the preceding [statutory] elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances." This paraphrase of the statute followed by an erroneous description of the jury's task "operated affirmatively to preclude jury consideration of nonstatutory mitigating factors." Id. at 1377. Similarly in this case, a paraphrased version of the statute was followed by a faulty description of the jury's task contained in the verdict forms that called on the jury to consider whether "sufficient mitigating circumstances [as] defined in the Court's charge" existed to outweigh the aggravating circumstances. This instruction, just as the one in Washington, refers to the previously listed mitigating factors in describing the sort of evidence that could lead to a recommendation of life imprisonment, and thus, affirmatively misled the jury regarding the status of non-statutory mitigating evidence.

This court held in Ford v. Strickland, supra, that an instruction which stated with regard to mitigating circumstances that the jury "shall consider" the statutory list of mitigating factors did not restrict the jury's consideration of mitigating evidence. But the holding in Ford was a narrow one, inapplicable in this case for several reasons. First, the instruction in Ford dealt with only one section of the statute, the "shall" language of subsection (6), rather than the more misleading "as enumerated" language of subsection (2). The observation of the Supreme Court in Proffitt v. Florida, 428 U.S. 242, 250 n. 8, 96 S. Ct. 2960, 2965 n. 8, 49 L. Ed. 2d 913 (1976), relied upon by the Ford court, was also based upon a reading of subsection (6) without any mention of subsection (2). In this case, by contrast, both sections of the statute were mentioned. Second, the Ford court distinguished Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S. Ct. 2021, 72 L. Ed. 2d 474 (1982), by noting the restrictive language that appeared in that case after the list of statutory mitigating factors. Such language was missing from the Ford instruction but was present in Washington and in this case. See Alvord v. Wainwright, 725 F.2d 1282, 1299 (11th Cir.) modified, 731 F.2d 1486,cert. denied, --- U.S. ----, 105 S. Ct. 355, 83 L. Ed. 2d 291 (1984). Third, the defendant in Ford had not been precluded from introducing any mitigating evidence and the trial judge believed that the statute contained no such restrictions. In this case, as the previous discussion indicates, counsel for Songer and the judge himself held a restrictive view of the statute and that view was imparted to the jury in the charge.

In sum, this case is controlled by Washington v. Watkins rather than Ford v. Strickland. The instructions improperly restricted the jury's consideration of mitigating circumstances in violation of Lockett, supra.

What the previous discussion has made clear is that the errors did not, as the majority concludes, only affect the trial judge's weighing of the evidence. The only conclusion consistent with this record is that the entire sentencing proceeding was unconstitutionally limited. Able trial counsel did not investigate or present non-statutory mitigating evidence. The trial judge did not believe it was admissible anyway. He instructed the jury to weigh the statutory aggravating circumstances against the statutory mitigating circumstances and also limited his own consideration in that fashion. Both the jury and judge decided that death was the appropriate penalty. As the constitutional infirmity in Songer's sentencing proceeding was manifest throughout the proceeding, he is entitled to a new penalty phase proceeding before a jury, not only before the judge.10 Therefore, I respectfully dissent.

The state trial judge, who was also the judge who presided over the petitioner's post conviction hearings, was admirably candid in stating his view of how the statute operated in 1974. He acknowledged that mitigating evidence now admissible under current death penalty jurisprudence was available at the time of trial. Hopefully, in the interest of justice he will require what the majority leaves as an option and will impanel a new advisory jury to hear all available mitigating evidence. Despite the long history of this case in the courts, both state and federal, if such a hearing is held before a new jury, the fate of Carl Ray Songer should be finally determined.