1

2

This petition for habeas corpus relief is being filed to

address substantial claims of error under the Fourth, Fifth, Sixth,

Eighth and Fourteenth amendments to the United States Constitution.

These claims demonstrate that Mr. Floyd was deprived of effective

assistance of counsel on direct appeal and that the proceedings

resulting in his conviction and death sentence violated fundamental

constitutional imperatives.

Significant errors that occurred at Mr. Floyd's capital trial

and sentencing were not presented to this Court on direct appeal

due to the ineffective assistance of appellate counsel. In his

initial direct appeal, appellate counsel limited his appeal to a

total of seven issues, only two concerning the guilt phase of Mr.

Floyd's trial. Floyd v. State, 497 So.2d 1211 (Fla. 1986). After

obtaining resentencing relief from this Court, Mr. Floyd was again

sentenced to death and that sentence was upheld on direct appeal.

Floyd v. State, 569 So. 2d 1225 (Fla. 1990).

Without explanation, appellate counsel omitted guilt and

penalty phase issues from the direct appeals. Appellate counsel's

failure to present the meritorious issues discussed in this

petition demonstrates that his representation of Mr. Floyd involved

"serious and substantial deficiencies." Fitzpatrick v. Wainwright,

490 So.2d 938, 940 (Fla. 1986).

The issues that appellate counsel neglected show that

counsel's performance was deficient and that the deficiencies

3

prejudiced Mr. Floyd. "[E]xtant legal principles...provided a

clear basis for ... compelling appellate argument[s]."

Fitzpatrick, 490 So.2d at 940. The issues were preserved at trial

and available for presentation on appeal. Neglecting to raise

fundamental issues such as those discussed here "is far below the

range of acceptable appellate performance and must undermine

confidence in the fairness and correctness of the outcome." Wilson

v. Wainwright, 474 So. 2d 1162, 1164 (Fla. 1985). Appellate

counsel's omissions demonstrate appellate counsel's "failure to

grasp the vital importance of [his] role as a champion of [his]

client's cause." Wilson, 474 So. 2d at 1164. Individually and

"cumulatively," Barclay v. Wainwright, 444 So. 2d 956, 959 (Fla.

1984), the claims omitted by appellate counsel establish that

"confidence in the correctness and fairness of the result has been

undermined." Wilson, 474 So.2d at 1165(emphasis in original). In

Wilson, this Court said:

[O]ur judicially neutral review of so many

death cases, many with records running to the

thousands of pages, is no substitute for the

careful, partisan scrutiny of a zealous

advocate. It is the unique role of that

advocate to discover and highlight possible

error and to present it to the court, both in

writing and orally, in such a manner designed

to persuade the court of the gravity of the

alleged deviations from due process. Advocacy

is an art, not a science.

Wilson, 474 So.2d at 1165.

Appellate counsel in Mr. Floyd’s case failed to act as a

"zealous advocate," and Mr. Floyd was deprived of his right to the

4

effective assistance of counsel by the failure of direct appeal

counsel to raise the issues presented here. Mr. Floyd is entitled

to a new direct appeal.

A writ of habeas corpus is an original proceeding in this

Court governed by Fla. R. App. P. 9.100. This Court has original

jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, §

3(b)(9), Fla. Const.

The Florida Constitution guarantees that "[t]he writ of habeas

corpus shall be grantable of right, freely and without cost." Art.

I, § 13, Fla. Const. Its constitutional guarantee imbues habeas

corpus with special status, which this Court has long recognized:

The writ of habeas corpus is a high

prerogative writ of ancient origin designed to

obtain immediate relief from unlawful

imprisonment without sufficient legal

reason. . . . The writ is venerated by all

free and liberty loving people and recognized

as a fundamental guaranty and protection of

their right of liberty.

Allison v. Baker, 11 So. 2d 578, 579 (1943). Habeas corpus is a

centuries-old right, deserving more protection than a

constitutional right.

The great writ has its origins in antiquity

and its parameters have been shaped by

suffering and deprivation. It is more than a

privilege with which free men are endowed by

constitutional mandate; it is a writ of

ancient right.

Jamason v. State, 447 So. 2d 892, 894 (Fla. 4th DCA 1983), approved

455 So. 2d 380 (Fla. 1984), cert. denied, 469 U.S. 1100 (1985).

5

Regarding the application of procedural rules to petitions seeking

the writ, this Court has explained:

[H]istorically, habeas corpus is a high

prerogative writ. It is as old as the common

law itself and is an integral part of our own

democratic process. The procedure for the

appears to a court of competent jurisdiction

that a man is being illegally restrained of

his liberty, it is the responsibility of the

court to brush aside formal technicalities and

issue such appropriate orders as will do

Anglin v. Mayo, 88 So. 2d 918, 919-20 (Fla. 1956) (emphasis added).

The fundamental guarantees enumerated in

Florida's Declaration of Rights should be

available to all through simple and direct

means, without needless complication or

impediment, and should be fairly administered

in favor of justice and not bound by

technicality.

Haag v. State, 591 So. 2d 614, 616 (Fla. 1992).

be referred to as (R. and page #). References to the record from

Mr. Floyd's second sentencing will be referred to as (RS. and

page #). All other citations will be self-explanatory or will

otherwise be explained.

6

Mr. Floyd was convicted and sentenced to death in Pinellas

County, Florida. On direct appeal, the Florida Supreme Court

affirmed Mr. Floyd's convictions, but overturned his sentence of

death because: (a) the trial court improperly found the cold,

calculated and premeditated aggravating factor; (b) the trial court

improperly found the murder to prevent arrest aggravating factor;

and (c) the trial court failed to instruct the jury adequately

about nonstatutory mitigating factors. Floyd v. State, 497 So. 2d

Mr. Floyd's second sentencing hearing was held on January 12-

14, 1988 before Circuit Court Judge Richard A. Luce. On January

14, 1988, the jury by a vote of eight (8) to four (4) returned an

advisory recommendation of death (RS. 1039).

On February 29, 1988, the trial court imposed a sentence of

death, stating that his personal belief was that the Florida

Supreme Court incorrectly prevented him from doubling aggravators

(RS. 1066); the Florida Supreme Court was incorrect in specifically

finding that the murder to prevent arrest aggravating factor was

not present in this case (RS. 1066); and that the Florida Supreme

Court was incorrect in finding that the cold, calculated and

premeditated aggravating factor was not present in this case (RS.

mitigation that this Court found to exist in Mr. Floyd’s first

case – the death of Mr. Floyd's father a year earlier; his

childhood with an alcoholic mother; the fact that he was a parent

of two small children; and the plea for mercy from the victim's

daughter. Floyd v. State, 497 So. 2d 1211, 1212 (Fla. 1986).

7

1068-1069). The trial judge said he would ignore these aggravating

factors, notwithstanding his personal opinions. The trial court

then said that although he found that Mr. Floyd demonstrated some

remorse, a desire to live within the rules of his current prison

sentence, and a desire to establish a rapport with his children,

these did not qualify as the type of mitigation contemplated (RS.

Floyd v. State, 569 So. 2d 1225 (Fla. 1990); cert. denied, 111

S.Ct. 2912 (1991). Mr. Floyd filed an amended 3.850 motion on

November 13, 1998. That motion was summarily denied without an

evidentiary hearing on July 21, 1999.

By his petition for a writ of habeas corpus, Mr. Floyd asserts

that his capital conviction and sentence of death were obtained and

then affirmed during the Court's appellate review process in

violation of his rights guaranteed by the Fifth, Sixth, Eighth, and

Fourteenth amendments to the United States Constitution, and the

corresponding provision of the Florida Constitution, for each of

the reasons set forth herein.

8

The prosecution was permitted to introduce into evidence

numerous gruesome photographs that were inflammatory, cumulative,

and prejudicial, and admitted solely to inflame the passion of the

jurors based on impermissible factors. These included photographs

of the victim's body taken at the scene of the crime, pictures of

the victim's internal organs and the victim’s stab wounds (R. 396,

452-53, 459-461). The state’s purpose in offering these

photographs was to appeal solely to the emotions of the jurors by

shocking and disgusting them with graphic bloody pictures.

Defense counsel objected to the admission of autopsy

photographs when photographs of the body at the crime scene had

already been admitted (R. 412-413, 459-460).

MR. MURRY: Judge, I have lumped these exhibits

into packets–not packets, but groups. There are

numerous pictures of various internal organs and I’m

going to let the Court take a look at these. These are

basically pictures of internal organs and they don’t

serve to identify the body at all.

They’re nothing that’s going to help the jury in

this particular case. They are just more or less, I

don’t know how to say it, they are just gory pictures of

the internal organs of the body.

MR. GRATE: One photograph in particular shows the

injury to the heart how the knife actually went through.

The Doctor said the penetrating wound went inside the

heart and out the other side.

THE COURT: He’s testified to that. I think they are

inflammatory. I’m going to sustain the objection.

9

MR. MURRY: Now, they have also got numerous

pictures of the stab wounds of Mrs. Anderson. And my

basic objection is we don’t need all of those. We have

pictures of the stab wounds of Mrs. Anderson. Maybe

there are some in there that is all right but I think we

have one. It’s kind of overkill.

THE COURT: Of course, these depict the same thing

as the larger one.

MR. GRATE: I think we need one of those.

THE COURT: Okay, pick one of those and the rest I

will sustain it.

* * *

MR. MURRY: I’m just objecting to all of them. I think

they are cumulative.

(R. 459-460).

The one photograph chosen by the state was a graphic and open

depiction of the open chest of the victim during the autopsy. The

trial court should have sustained the objection as to all of the

autopsy photographs because many photographs of the victim’s body

had already been admitted into evidence. The medical examiner

testified to the ten stab wounds to the chest and pointed them out

in the photographs for emphasis to the jury (R. 460). Then, the

state attorney had the medical examiner describe the wound to the

upper chest. For emphasis, the state attorney asked to "walk these

in front of the jury" and the trial court allowed him to do it (R.

462). After "walking" the photographs to the jury, the state

brought out the bloody white sweater the victim had been wearing

and had the medical examiner identify the sweater (R. 463). All of

these theatrics were specifically calculated to infuriate the jury

10

against Mr. Floyd. There was no other purpose. The sweater was

already in evidence. The crime scene photographs were already in

evidence. The police officers and medical examiner had already

testified to the wounds and the crime scene. The cause of death

was not in dispute. Inexplicably, appellate counsel failed to

raise this claim even though it was properly preserved for appeal.

This was prejudicial.

The probative value of these photographs was not only

outweighed by their prejudice, but these photographs were

cumulative to each other. Their graphic content was further

emphasized through the parading of the photographs in front of the

jury and the testimony of state’s witnesses. The prejudicial

effect of the photographs undermined the reliability of Mr. Floyd's

conviction and death sentence. The photographs themselves did not

independently establish any material part of the state's case nor

were they necessary to corroborate a disputed fact. The manner of

death was not in dispute. The trial court's error in admitting

these photographs cannot be considered harmless beyond a reasonable

doubt. Chapman v. California, 87 S. Ct. 824 (1967); State v.

DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Use of these gruesome photographs, which were cumulative,

inflammatory, and appealed improperly to the jury's emotions,

denied Mr. Floyd a fair trial in violation of Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution.

Appellate counsel's failure to raise this issue on direct appeal

11

constituted prejudicially deficient performance. Habeas relief is

proper and warranted in this case.

The prosecutors' misconduct during the initial trial and

resentencing proceeding both individually, and cumulatively,

deprived Mr. Floyd of his rights under the Sixth, Eighth, and

Fourteenth Amendment. Mr. Floyd raised this issue in his

postconviction motion. The trial court held it to be procedurally

barred for failure to raise it on direct appeal. Order Denying

Relief, March 2, 1999 at 12-13.

During Mr. Floyd's initial trial, the prosecutor referred not

only to cumulative, inflammatory photographs (see Claim I, supra),

he also made reference to irrelevant and prejudicial information in

an effort to inflame the passions of the jury.

The State elicited information about irrelevant vaginal

washings taken from the victim, implying that a sexual crime had

occurred when there was no evidence to indicate a sex crime (R.

465-466).

MR. MURRY: Judge, at this point I’m going to move

for a mistrial and the grounds are basically that this

guy has brought up vaginal washings twice. There is no

suggestions of a rape or anything like that and I think

it’s excessively prejudicial and I’m going to move for a

mistrial.

12

MR. GRATE: We haven’t gone into that area and we

aren’t going to go into anything.

THE COURT: Just leave it at that and don’t go

into it any further. Stick to the blood and not get

into that any further.

MR. GRATE: I’m not, sir.

THE COURT: I don’t think that’s sufficient

grounds for mistrial and I’m going to deny it. Stick to

what we have as relevant. (R. 466).

This was improper, particularly in light of the previous gross

photographs that had just been "walked" in front of the jury. The

trial court acknowledged that the mention of the "vaginal washings"

was irrelevant, yet it failed to give the jury a curative

instruction to disregard the state’s implication that Mr. Floyd had

been involved in an uncharged collateral crime that did not exist.

The State continued to interject inappropriate factors into

the jury’s consideration. Even after the judge sustained the

objections to the photographs and ruled that the "vaginal washings"

were irrelevant, the prosecutor continued to ask about collateral

uncharged acts. The prosecutor asked about Mr. Floyd's reaction to

being booked on the forgery charge, i.e. testimony that "[Mr.

Floyd] kept looking at [the officer] and just staring like he

should be charged with something else." (R. 509). The State also

asked inappropriate questions as to whether Mr. Floyd was

"cooperative" when blood and hair samples were taken (R. 443). All

of these irrelevant and improper questions were aimed at implying

to the jury that Mr. Floyd had something to hide and that he was

responsible for other crimes.

13

The State continued to illicit responses to interject

irrelevant testimony into the record. For example, the prosecutor

asked for a witness to speculate as to why fingerprints were not

found at the crime scene (R. 585-586).

MR. GRATE: Did you often find fingerprints?

A: It’s not a common thing to find fingerprints

in burglaries.

Q. Based on your investigations, why is that?

A. Well, in- -

MR. MURRY: I object. This has got to be sheer

speculation on this detective’s part.

MR. EPISCOPO: Three and a half years

speculation?

MR. MURRY: He can’t generalize that down into

one set of circumstances such as here. He just can’t

make general blanket statements about evidence or about

what’s happened here.

MR. EPISCOPO: He questioned the fingerprint

technician on general statements.

THE COURT: I’ll overrule the objection.

A. By talking with people who have been involved

in these types of crimes, they have indicated that –-

MR. MURRY: I’ll object to hearsay.

THE COURT: I don’t see the relevance. I’m going to

sustain that.

(R. 585-586).

The detective then testified that burglars commonly wear socks

or gloves over their hands to avoid leaving fingerprints (R. 586-

87). This speculative testimony was improper, and it was error to

allow the testimony before the jury. Even though the issue was

14

properly preserved for appellate review, appellate counsel did not

raise the issue.

The State also asked for expert opinions from unqualified lay

witnesses (R. 677-679). Defense counsel objected to all of these

instances (R. 443, 466, 509, 585-86, 677, 679), yet appellate

counsel failed to raise them on direct appeal. The cumulative

effect of all of these errors rendered the outcome unreliable

because the jury was exposed to irrelevant opinions about Mr.

Floyd’s appearance, to testimony about collateral crimes that were

never charged and to gory autopsy photographs that were cumulative

and irrelevant. The state then argued all of these things to the

jury in closing.

During closing argument, the State argued improper nonstatutory

aggravating factors:

Let's think about the actual act of

killing and murdering and stabbing an eightysix

year-old woman, let's think about what

other choices in that split second that James

Floyd had to think about. He is in the

bedroom and she comes meandering in the house.

He has a choice to make right then. He knows

the victim's old. He has a choice, and he had

other choices available, he chose to stab her

and take her life. The defendant could easily

have knocked Annie Anderson down. She was

eighty-six years old. She's probably got bad

hearing and bad eyesight. He had other

choices available. He made his choice then.

That decision that James Floyd made on

January 16 of 1984 tells you a lot about him,

a lot about his soul and what's in him.

January 16th he made the decision to kill an

eighty-six year old lady, senselessly. Think

of the options. He is doing a burglary, an

old lady walks in on him. He could have

15

thrown her down. He could have knocked her

glasses off and thrown her down. He could

have run out the door, but he made a decision

then. That give's you insight as to him, what

he's all about. He made the decision to take

her life.

Now the stabbing of an eighty-six year

old woman and then going to the bank and

her bleeding in her bed and goes to the bank

and cashes her check, or does that all seem

like it's all in a day's work?

(RS. 992-993)(emphasis supplied).

Lack of remorse is not a statutory aggravating factor. The

prosecution is prohibited from arguing non-statutory aggravators,

yet the state openly argued lack of remorse as aggravating. The

jury was never instructed that lack of remorse could not be

considered as an aggravating circumstance in the case.

Appellate counsel was ineffective for failing to raise this

constitutional issue on appeal. This issue was raised in Mr.

Floyd's motion for postconviction relief. The trial court found it

to be procedurally barred on the basis that the claim could have

been raised on direct appeal. Order Denying Relief, March 2,1999 at

6. Appellate counsel's performance was deficient in failing to

raise this claim. Mr. Floyd is entitled to relief from this Court.

16

Mr. Floyd's jury was repeatedly instructed by the court and

the prosecutor that its role was merely "advisory." (See, e.g.

(RS. 554, 555, 559, 560, 681, 691, 692, 1022, 1023). Great weight

is given the jury's recommendation because the jury is cosentencer.

The jury's sense of responsibility was diminished by

the misleading comments and instructions about its role. The jury

was not told it was a co-sentencer. This diminution of the jury's

sense of responsibility violated the Eighth Amendment. Caldwell v.

Mississippi, 472 U.S. 320 (1985). To the extent that defense

counsel, without a tactic or strategy, failed to object to these

repeated violations, he rendered prejudicially deficient

performance. Failure to raise this issue on direct appeal was

ineffective assistance of appellate counsel.

Mr. Floyd's Sixth, Eighth, and Fourteenth amendment rights

were violated by other erroneous and misleading instructions at the

sentencing phase. These instructions told the jury that seven or

more members must agree on a recommendation of life imprisonment

before declining to impose a sentence of death. The effect of

these erroneous instructions was to render Mr. Floyd's death

sentence fundamentally unfair.

17

The trial judge gave this erroneous instruction:

In these proceedings it is not necessary

that the advisory sentence of the jury be

unanimous. Your decision may be made by a

majority of the jurors. The fact that the

determination of whether a majority of you

recommend a sentence or life sentence, of life

imprisonment in this case, can be reached by a

single ballot -- can be reached by a single

ballot should not influence you to act hastily

or without due regard to the gravity of these

proceedings.

(RS. 2704-05). However, the judge did read part of the correct

standard jury instruction, which advised the jury that if six or

more jurors recommends life, they have made a life recommendation

(RS. 1028, 29). This brief statement of the law was rendered moot

by the previous instruction that misled the jury. Jurors were left

with the erroneous impression that they could not return a valid

sentencing verdict if they were tied six to six.

The trial court repeated this erroneous instruction in

summarizing its charge to the jury:

Ladies and gentlemen, you will now retire

to consider your recommendation. When seven

or more are in agreement as to what sentence

should be recommended to the Court, that form

of recommendation should be signed by your

foreman and returned to the Court.

(RS. 1030, 31)(emphasis added).

Trial counsel objected to this erroneous instruction during

the charge conference.

MR. LOVE: Judge, I do have -- I am not

sure, you might want to clarify this on the

one recommending death. It says, the jury --

the jury, by a vote of to-do-do post death.

The other one goes, the jury impose and

18

recommend life in prison without possibility

of parole. It says, so say we all. The

problem I may have is where they may infer --

even without those other instructions, they

are going to infer it's going to be unanimous

to do that.

(RS. 956)(emphasis added). Trial counsel renewed his objection

after this erroneous instruction was read to the jury:

MR. LOVE: I hate to come up one more

time. In listening to the last things it says

reaching a majority, meaning the last things

you are saying to them. I am not sure if

that's going to be confusing to them. They

still have to be -- before it happened it was

explained to them as six.

(RS. 1032)(emphasis added).

Mr. Floyd was prejudiced by the State's improper conduct.

Just as a criminal defendant has a right to effective assistance of

counsel at trial, a defendant also has a right to counsel to aid in

the direct appeal of his or her criminal conviction. Jones v.

Heath, 941 F.2d 1126, 1130 (11th Cir. 1991). see Evitts v. Lucey,

469 U.S. 387 (1985). The right to counsel is violated when

appellate counsel is ineffective. Id. In the instant case, Mr.

Floyd's fundamental constitutional rights were violated by the

prosecutor's use of irrelevant, inflammatory, and prejudicial

material to obtain his conviction and death sentence. Appellate

counsel was ineffective for failing to raise these issue on direct

appeal. Relief is warranted.

19

Under Florida law, a capital sentencing jury must be:

[T]old that the state must establish the

existence of one or more aggravating

circumstances before the death penalty could

be imposed . . .

[S]uch a sentence could be given if the

state showed the aggravating circumstances

outweighed the mitigating circumstances.

State v. Dixon, 283 So. 2d 1 (Fla. 1973)(emphasis added). This

standard was never applied at the penalty phase of Mr. Floyd's

capital proceedings. To the contrary, the court shifted to Mr.

Floyd the burden of proving whether he should live or die. In

Hamblen v. Dugger, 546 So. 2d 1039 (Fla. 1989), a capital postconviction

action, the Florida Supreme Court said these claims

should be addressed on a case-by-case basis. Mr. Floyd urges this

Court to assess this significant issue and grant him relief. Mr.

Floyd raised this issue in his postconviction motion, on the basis

that defense counsel rendered prejudicially deficient assistance in

failing to object to the errors. See Murphy v. Puckett, 893 F.2d

94 (5th Cir. 1990). The trial court summarily denied this claim,

asserting that this issue was procedurally barred since appellate

counsel failed to raise it on direct appeal. Order Denying Relief,

March 2, 1999 at 4-5.

Shifting the burden to the defendant to establish that

20

mitigating circumstances outweigh aggravating circumstances

conflicts with Mullaney v. Wilbur, 421 U.S. 684 (1975), and Dixon.

Such instructions unconstitutionally shift to the defendant the

burden of whether he should live or die. In so instructing a

capital sentencing jury, a court injects misleading and irrelevant

factors into the sentencing determination, violating Caldwell v.

Mississippi, 472 U.S. 320 (1985), Hitchcock v. Dugger, 107 S. Ct.

1821 (1987), and Maynard v. Cartwright, 108 S. Ct. 1853 (1988).

The judge instructed the jurors in Mr. Floyd's penalty phase

that they were required to impose death unless mitigation was not

only produced but outweighed the aggravation. See Zeigler v.

Dugger, 524 So. 2d 419 (Fla. 1988)(trial court is presumed to apply

the law in accord with manner in which jury was instructed). This

shifted the burden to Mr. Floyd to establish that life was the

appropriate sentence. This standard also limited consideration of

mitigating evidence to only those factors proven sufficient to

outweigh the aggravation. The standard given to the jury violated

state law. According to this standard, the jury could not "full[y]

consider[]" and "give effect to" mitigating evidence. Penry, 109

S. Ct. 2934, 2951 (1989). This burden-shifting standard

"interfered with the consideration of mitigating evidence." Boyde

v. California, 110 S. Ct. 1190, 1196 (1990). Since "[s]tates

cannot limit the sentencer's consideration of any relevant

circumstance that could cause it to decline to impose the [death]

penalty," McCleskey v. Kemp, 481 U.S. 279, 306 (1987), the argument

21

and instructions given to Mr. Floyd's sentencing jury, as well as

the standard used by the trial court, violated the Eighth

amendment's "requirement of individualized sentencing in capital

cases [which] is satisfied by allowing the jury to consider all

relevant mitigating evidence." Blystone v. Pennsylvania, 110 S.

Ct. 1078, 1083 (1990). See also Lockett v. Ohio, 438 U.S. 586

(1978); Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821 (1987).

The instructions gave the jury inaccurate and misleading

information about who bore the burden of proof as to whether a

death recommendation should be returned.

The judge's instruction violated Florida law and Eighth

Amendment principles. See McKoy v. North Carolina, 110 S. Ct.

1227, 1239 (1990)(Kennedy, J., concurring)(a death sentence arising

from erroneous instructions "represents imposition of capital

punishment through a system that can be described as arbitrary or

capricious"). Mr. Floyd was required to establish (prove) that

life was the appropriate sentence, and the jury's and judge's

consideration of mitigating evidence was limited to mitigation

"sufficient to outweigh" aggravation.

In his penalty phase instructions, the judge instructed the

jurors that it was their job to determine if the mitigating

circumstances outweighed the aggravating circumstances:

It is now your duty to advise the Court

as to what punishment should be imposed upon

the defendant for his crime of murder in the

first degree. As you have been told, the

final decision as to what punishment shall be

imposed is the responsibility of myself,

22

however, it is your duty to follow the law

that will now be given to you by myself and

render to the Court an advisory sentence based

upon your determination as to whether

sufficient aggravating circumstances exist to

justify the imposition of the death penalty

and whether sufficient mitigating

circumstances exist to outweigh any

aggravating circumstances found to exist.

(RS. 1022,23). This erroneous standard was again repeated to the

jury:

Should you find sufficient aggravating

circumstances exist, it will then be your duty

to determine whether mitigating circumstances

exist that outweigh the aggravating

circumstances.

(RS. 1025).

These instructions violated Florida law and the Eighth and

Fourteenth Amendments because they shifted the burden of proof to

Mr. Floyd on the central sentencing issue of whether he should live

or die. Under Mullaney, this unconstitutional burden-shifting

violated Mr. Floyd's due process and Eighth Amendment rights. See

also Sandstrom v. Montana, 442 U.S. 510 (1979); Jackson v. Dugger,

837 F.2d 1469 (11th Cir. 1988). The jury was not instructed in

conformity with the standard set forth in Dixon.

In being instructed that mitigating circumstances must

outweigh aggravating circumstances before the jury could recommend

life, the jury was effectively told that once aggravating

circumstances were established, it need not consider mitigating

circumstances unless those mitigating circumstances were sufficient

to outweigh the aggravating circumstances. Cf. Mills v. Maryland,

23

108 S. Ct. 1860 (1988); Hitchcock v. Dugger, 481 U.S. 393, 107 S.

Ct. 1821 (1987). The jury was precluded from considering

mitigating evidence, Hitchcock, and from evaluating the "totality

of the circumstances" in considering the appropriate penalty.

State v. Dixon, 283 So. 2d at 10. According to the instructions,

jurors would reasonably have understood that only mitigating

evidence that rose to the level of "outweighing" aggravation need

be considered.

Because of appellate counsel's ineffectiveness, this issue was

not addressed. See, Order Denying Relief, March 2, 1999 at 4-5.

Mr. Floyd is entitled to a new direct appeal.

During Mr. Floyd's resentencing, The jury was instructed on

three aggravating factors:

The aggravating circumstances that you

may consider are limited to any of the

following that are established by the

evidence. One, the crime for which the

defendant is to be sentenced was committed by

the defendant while he was engaged in the

commission of a burglary. Two, the crime for

which the defendant is to be sentenced was

committed for financial gain.

Where the same aspect of the offense at

issue gives rise to two or more aggravating

circumstances, that aspect can only be

considered as one aggravating circumstance.

24

If you, the jury, find the State has proved

beyond a reasonable doubt both aggravating

circumstances number one and two, this may

only be regarding as one aggravating

circumstance for the purposes of the

recommendation.

The third potentially aggravating

circumstance is the crime for which the

defendant is to be sentenced was especially

wicked, evil, atrocious or cruel. In order

that you might better understand and be guided

concerning the meaning of aggravating

circumstance, the Court hereby instructs you

that what is intended to be included in the

category of wicked, evil, atrocious or cruel

are those capital crimes where the actual

commission of the capital felony was

accompanied by such additional facts as to set

the crime apart from the norm of capital

felonies, the conscienceless or pitiless crime

which is unnecessarily tortuous to the victim.

(RS. 1024-25).

Aggravating circumstances "must be proven beyond a reasonable

doubt." Hamilton v. State, 547 So. 2d 528 (Fla. 1989). Mr.

Floyd's jury was so instructed. Florida law also establishes that

limiting constructions of the aggravating circumstances are

"elements" of the particular aggravating circumstance. "[T]he

State must prove [the] element[s] beyond a reasonable doubt."

Banda v. State, 536 So. 2d 221, 224 (Fla. 1988). Mr. Floyd's jury

received no instructions on the elements of the aggravators.

Appellate counsel failed to address this issue on direct appeal.

Mr. Floyd raised this issue in his postconviction motion, only to

have it summarily denied by the trial court as being procedurally

barred. Order Denying Relief, March 2, 1999 at 5.

25

Under Florida law, the sentencing jury may reject or give

little weight to any particular aggravating circumstance. A

binding life recommendation may be returned because the aggravators

are insufficient. Hallman v. State, 560 So. 2d 223 (Fla. 1990).

The jury's understanding and consideration of aggravating factors

may lead to a life sentence. Yet, Mr. Floyd's jury was not given

adequate guidance as to what was necessary to establish the

presence of an aggravator. This left the jury with unbridled

discretion and violated the Eighth amendment.

The jury was simply told "the crime . . . was committed by the

defendant while he was engaged in the commission of a burglary" and

"was committed for financial gain" (RS. 1024). The jury was not

told that these aggravating factors standing alone were

insufficient to support a death sentence. Proffitt v. State, 510

So. 2d 896 (Fla. 1987). The penalty phase instruction on this

aggravating circumstance "fail[ed] adequately to inform [Mr.

Floyd's] jur[y] what [it] must find to impose the death penalty."

Maynard v. Cartwright, 108 S. Ct. at 1858. This factor must be

stricken.

"If a State uses aggravating factors in deciding who shall be

eligible for the death penalty or who shall receive the death

penalty, it cannot use factors which as a practical matter fail to

guide the sentencer's discretion." Stringer v. Black 112 S. Ct.

1130, 1139 (1992). Using an improper aggravating factor in a

weighing scheme like Florida has the potential for creating greater

26

harm than it does in an eligibility scheme:

Although our precedents do not require

the use of aggravating factors, they have not

permitted a State in which aggravating factors

are decisive to use factors of vague or

imprecise content. A vague aggravating factor

employed for the purpose of determining

whether a defendant is eligible for the death

penalty fails to channel the sentencer's

discretion. A vague aggravating factor used

in the weighing process is in a sense worse,

for it creates the risk that the jury will

treat the defendant as more deserving of the

death penalty than he might otherwise be by

relying upon the existence of an illusory

circumstance. Because the use of a vague

aggravating factor in the weighing process

creates the possibility not only of randomness

but also of bias in favor of the death

be a requirement that when the weighing

process has been infected with a vague factor

the death sentence must be invalidated.

Stringer, 112 S. Ct. at 1139. In a weighing state like Florida,

relying on an invalid aggravating factor is constitutional error

requiring a harmless error analysis, even if other aggravating

factors exist.

"If the sentencer fairly could conclude that an aggravating

circumstances applies to every defendant eligible for the death

penalty the circumstance is constitutionally infirm." Arave v.

Creech, 113 S.Ct. 1534 (1993)(emphasis in original). The function

of the aggravating factors is to "genuinely narrow the class of

defendants eligible for the death penalty." Id., quoting Zant v.

Stephens, 462 U.S. 862, 877 (1983). An aggravating circumstance

"must provide a principled basis" for determining who deserves

capital punishment and who does not. Arave.

27

Stringer and Arave establish the validity of Mr. Floyd's claim

that the felony murder aggravating factor is an unconstitutional

automatic aggravating factor that does not provide the requisite

narrowing. Under Florida law, capital sentencers may reject or

give little weight to any particular aggravating circumstance. A

jury may return a binding life recommendation because the

aggravators are insufficient. Hallman v. State, 560 So. 2d 233

(Fla. 1990). The sentencer's understanding and consideration of

aggravating factors may lead to a life sentence.

Mr. Floyd was convicted of one count of first-degree murder,

with burglary being the underlying felony. The jury was instructed

on both premeditated and felony murder and returned a general

verdict. The death penalty in this case was predicated on

unreliable automatic findings of statutory aggravating

circumstances -- the very felony underlying the conviction.

As to the aggravator of "pecuniary gain," it does not apply

unless it is the primary or sole motive for the crime. The Florida

Supreme Court struck the lower court's finding of this aggravator

because "[t]here was not, however, sufficient evidence to prove a

pecuniary motivation for the murder itself beyond a reasonable

doubt." Peek v. State, 395 So. 2d 492 (Fla. 1980)(quoted in

Initial Brief of Appellant on Direct Appeal at 48-9); Simmons v.

State, 419 So. 2d 316, 318 (Fla. 1982)(followed in Rogers v. State,

511 So. 2d 526 (Fla. 1987)); Scull v. State, 533 So. 2d 1137, 1142

(Fla. 1988)( "[I]t has not been shown beyond a reasonable doubt

28

that the primary motive for this killing was pecuniary gain").

Mr. Floyd's jury failed to receive any limiting instructions

on pecuniary gain. The instruction on this aggravator "fail[ed]

adequately to inform [Mr. Floyd's] jur[y] what [it] must find to

impose the death penalty." Maynard v. Cartwright, 486 U.S. at 361-

62. Mr. Floyd's jury must be presumed to have relied on this vague

jury instruction. Stringer v. Black 112 S. Ct. 1130 (1992). This

was Eighth Amendment error and was not harmless beyond a reasonable

doubt.

A state cannot use aggravating "factors which as a practical

matter fail to guide the sentencer's discretion." Stringer v.

Black, 112 S. Ct. 1130 (1992). The sentencer was entitled

automatically to return a death sentence upon a finding of first

degree felony murder. Every felony murder would involve, by

necessity, the finding of a statutory aggravating circumstance, a

fact which, under the particulars of Florida's statute, violates

the Eighth amendment. Arave v. Creech. This is so because an

automatic aggravating circumstance is created, one which does not

"genuinely narrow the class of persons eligible for the death

penalty," Zant v. Stephens, 462 U.S. 862, 876 (1983), and one which

therefore renders the sentencing process unconstitutionally

unreliable. Id. "Limiting the sentencer's discretion in imposing

the death penalty is a fundamental constitutional requirement for

sufficiently minimizing the risk of wholly arbitrary and capricious

action." Maynard v. Cartwright, 486 U.S. 356, 362 (1988). If Mr.

29

Floyd was convicted of felony murder, he then automatically faced

statutory aggravation for felony murder. These aggravating factors

were "illusory circumstance[s]" that "infected" the weighing

process; these aggravators did not narrow and channel the

sentencer's discretion as they simply repeated elements of the

offense. Stringer, 112 S. Ct. at 1139. Aggravating factors do not

perform the necessary narrowing if they merely repeat elements of

the offense. Porter v. State, 564 So. 2d 1060, 1063-64 (Fla.

1990). The Florida Supreme Court has held that the felony murder

aggravating factor alone cannot support the death sentence.

Rembert v. State, 445 So. 2d 337 (Fla. 1984). Yet, the trial court

did not instruct the jury and did not apply this limitation in

imposing death.

The aggravating circumstance of "in the course of a felony" is

not sufficient by itself to justify a death sentence in a

felony-murder case. Rembert v. State, 445 So. 2d 337, 340 (Fla.

1984)(no way of distinguishing other felony murder cases in which

defendants "receive a less severe sentence"); Proffitt v. State,

510 So. 2d 896, 898 (Fla. 1987)("To hold, as argued by the State,

that these circumstances justify the death penalty would mean that

every murder during the course of a burglary justifies the

imposition of the death penalty"). In this case, the jury was

instructed on this aggravating circumstance and told that it was

sufficient for a recommendation of death unless the mitigating

circumstances outweighed the aggravating circumstance. The jury

30

did not receive an instruction explaining the limitation contained

in Rembert and Proffitt. It is impossible to know whether the jury

relied on this aggravating circumstance in returning its death

recommendation.

Mr. Floyd was denied a reliable and individualized capital

sentencing determination, in violation of the Sixth, Eighth, and

Fourteenth amendments. The error cannot be harmless in this case:

[W]hen the sentencing body is told to

weigh an invalid factor in its decision, a

reviewing court may not assume it would have

made no difference if the thumb had been

removed from death's side of the scale. When

the weighing process itself has been skewed,

only constitutional harmless-error analysis or

reweighing at the trial or appellate level

suffices to guarantee that the defendant

received an individualized sentence.

Stringer, 112 S. Ct. at 1137. In Mr. Floyd's case, substantial

mitigating evidence, establishing both statutory and nonstatutory

mitigating factors, was presented at the penalty phase. In light

of the weight given the felony murder aggravator and the evidence

of mitigation, the erroneous consideration of the felony murder

aggravating factors cannot be held harmless beyond a reasonable

doubt. An "extra thumb" was placed on the death side of the

scales, Stringer. Without that "extra thumb," a binding life

recommendation may have been returned by the jury. The State

cannot meet its burden to prove the error harmless beyond a

reasonable doubt.

Mr. Floyd’s jury was instructed that "the crime . . . was

especially wicked, evil, atrocious, or cruel" (RS. 1025) and

31

"wicked, evil, atrocious and cruel are those capital crimes where

the actual commission of the capital felony was accompanied by such

additional acts . . . which is unnecessary torturous to the victim"

(RS. 1025). The trial court never instructed the jury that it was

required to find that the defendant "intended" to inflict

unnecessary torture to the victim. Stein v. State, 632 So. 2d 1361

(Fla. 1994); Santos v. State, 591 So. 2d 160, 163 (Fla. 1991).

In Stein v. State, 632 So. 2d 1361 (Fla. 1994), the Florida

Supreme Court struck a finding of heinous, atrocious or cruel

because "no evidence was presented to demonstrate any intent on

Stein’s part to inflict a high degree of pain or to otherwise

torture the victims." The narrowing construction of heinous,

atrocious or cruel requires that the defendant intended "to inflict

a high degree of pain or to otherwise torture." This narrowing

construction is repeatedly found in Florida law. Bonifay v. State,

626 So. 2d 1310, 1313 (Fla. 1993); Santos v. State, 591 So. 2d 160,

163 (Fla. 1991); Omelus v. State, 584 So. 2d 563, 566 (Fla. 1991);

Chesire v. State, 568 So. 2d 908, 912 (Fla. 1990); Rhodes v. State,

547 So. 2d 1201, 1208 (Fla. 1989); Amoros v. State, 531 So. 2d

1256, 1260 (Fla. 1988); Lewis v. State, 377 So. 2d 640, 646 (Fla.

1979). See also Scull v. State, 533 So. 2d 1137 (Fla. 1988).

The Supreme Court approved this Court’s limiting construction

of the "heinous, atrocious, or cruel" aggravating circumstance:

[The Florida Supreme Court] has recognized

that while it is arguable "that all killings

are atrocious, . . . [s]till, we believe that

the Legislature intended something

32

'especially' heinous, atrocious or cruel when

it authorized the death penalty for first

degree murder." Tedder v. State, 322 So. 2d,

at 910. 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, at 9. See also Alford v. State, 307

So. 2d 433, 445 (1975); Halliwell v. State,

[323 So. 2d 557], at 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.

Proffitt v. Florida, 428 U.S. 242, 255-56 (1976)(footnote

omitted)(emphasis added). The limitation approved in Proffitt was

not used at any stage of Mr. Floyd's proceedings.

Mr. Floyd's jury was never guided or channeled in its

sentencing discretion. No constitutionally sufficient limiting

construction, as construed in Dixon and approved in Proffitt, was

ever applied to the "heinous, atrocious, or cruel" aggravating

circumstance before this jury. Moreover, this aggravator only

applies where evidence shows beyond a reasonable doubt that the

defendant knew or intended the murder to be especially heinous,

atrocious or cruel. Omelus v. State, 584 So. 2d 563, 566 (Fla.

1991)(this "aggravating factor cannot be applied vicariously");

Porter v. State, 564 So. 2d 1060, 1063 (Fla. 1990)(heinous,

atrocious or cruel aggravator does not apply when the crime was

"not a crime that was meant to be deliberately and extraordinarily

painful")(emphasis in original).

In Mr. Floyd's case, the jury did not receive an instruction

narrowing constructions as adopted in case law. Proffitt v.

Florida approved Florida's statute only because the narrowing

construction adopted in State v. Dixon was sufficient to comport

with the Eighth Amendment. However, simply adopting a narrowing

construction is not enough. Where the statute is on its face

vague and overbroad, which is the case in Florida, the narrowing

constructions must be applied by the sentencer in order to cure

the "facial" defect. Richmond v. Lewis, 113 S. Ct. at 535.

33

regarding the limiting construction of "heinous, atrocious and

cruel." The judge relied upon the jury's death recommendation; in

fact, he gave it great weight. However. the jury's death

recommendation was tainted by its erroneous consideration of this

aggravator. As a result, the penalty phase instructions on this

aggravating circumstance "fail[ed] adequately to inform [Mr.

Floyd's] jur[y] what [it] must find to impose the death penalty."

Maynard v. Cartwright, 108 S. Ct. at 1858. Accordingly, this

instruction was erroneous and prejudicial to Mr. Floyd.

"‘[T]here is no serious argument that [the language

"especially heinous, cruel or depraved"] is not facially vague.'"

Richmond v. Lewis, 113 S. Ct. 528, 534 (1992). Florida's statutory

vague and overbroad in violation of the Eighth and Fourteenth

Amendments.

To allow the sentencer to consider an extra improper

aggravating circumstance violates the Eighth and Fourteenth

Amendments by allowing an extra "thumb" to be placed on the death

side of the scale. Stringer, 112 S. Ct. at 1137. Without this

prohibition against "doubling," the capital sentencing statute is

34

facially vague and overbroad because it fails to adequately inform

the sentencer how to determine what aggravators to weigh. Maynard,

486 U.S. at 362 (juries must be informed "what they must

find"). Where an aggravator merely repeats an element of the crime

of first-degree murder the aggravator is facially vague and

overbroad. Porter v. State, 564 So. 2d 1060, 1063-64 (Fla. 1990).

This is because such an aggravator provides the sentencer "openended

discretion." Maynard, 486 U.S. at 362. Since Mr. Floyd's

conviction could rest on the felony murder rule, the "in the course

of a felony" aggravating factor was facially vague and overbroad.

"[T]he channeling and limiting of the sentencer's discretion

in imposing the death penalty is a fundamental constitutional

requirement for sufficiently minimizing the risk of wholly

arbitrary and capricious action." Maynard v. Cartwright, 108 S.

Ct. at 1858. There must be a "principled way to distinguish [the]

case, in which the death penalty was imposed, from the many cases

in which it was not." Id. at 1859, quoting, Godfrey v. Georgia,

446 U.S. 420, 433 (1980).

The judge's failure to instruct on the limitations left the

jury free to ignore how to distinguish Mr. Floyd’s case from others

in which the limitations were applied and death was not imposed.

A properly instructed jury would have had no more than two

aggravating circumstances (and probably less) to weigh against the

mitigation offered by the defense. Where improper aggravating

35

circumstances are weighed by the jury, "the scale is more likely to

tip in favor of a recommended sentence of death." Valle v. State,

502 So. 2d 1225 (Fla. 1987). The jury was left with open-ended

discretion found invalid in Furman v. Georgia, 408 U.S. 238 (1972),

and Maynard v. Cartwright. Since, the jury in Florida is a cosentencer,

prejudice is manifest. Espinosa.

The jury was misled by the instructions and the prosecutor's

argument as to what was necessary to establish the presence of the

aggravating circumstance and support death. The jury was given no

instruction limiting the construction placed upon "heinous,

atrocious or cruel." The instruction given here provided even less

guidance than the one given in Maynard v. Cartwright. See Coleman

v. Saffle, 869 F.2d 1377, 1384 n.7 (10th Cir. 1989). The Eighth

Amendment was violated.

The jury instructions in Mr. Floyd's case did not cure the

facially vague and overbroad statute. The jury did not receive

instructions as to the narrowing constructions of the aggravating

circumstances. The jury was left with "open-ended discretion" in

violation of Maynard, the Eighth and Fourteenth Amendments, and in

violation of due process.

"[I]n a `weighing' State [such as Florida], where the

aggravating and mitigating factors are balanced against each other,

it is constitutional error for the sentencer to give weight to an

unconstitutionally vague aggravating factor, even if other, valid

aggravating factors obtain." Richmond, 113 S. Ct. at 534. A

36

facially vague and overbroad aggravating factor may be cured where

"an adequate narrowing construction of the factor" is adopted and

applied. Id. For the violation of the Eighth and Fourteenth

Amendments to be cured, "the narrowing construction" must be

applied during a "sentencing calculus" free from the taint of the

facially vague and overbroad factor. Id. at 535.

In Mr. Floyd's case, the jury instructions did not cure the

facially vague and overbroad statute. The jury did not receive

instructions as to the narrowing constructions, also known as the

elements, of the aggravating circumstances. The jury was left with

"open-ended discretion" in violation of Maynard, the Eighth and

Fourteenth Amendments, and in violation of due process. As stated

in the trial court's order denying postconviction relief, it is due

to appellate counsel's failure to raise this issue on direct appeal

that the issue is now procedurally barred. Mr. Floyd is entitled

to relief.

37

At the time of Mr. Floyd's trial, Sec. 921.141, Fla. Stat.,

provided in part:

(5) AGGRAVATING CIRCUMSTANCES.--

Aggravating circumstances shall be limited to

the following:

* * *

(d) The capital felony was committed

while the defendant was engaged, or was an

accomplice, in the commission of, or an

attempt to commit, or flight after committing

or attempting to commit, any robbery, sexual

battery, arson, burglary, kidnapping, or

aircraft piracy or the unlawful throwing,

placing, or discharging of a destructive

device or bomb.

* * *

(f) The capital felony was committed for

pecuniary gain.

* * *

(h) The capital felony was especially

heinous, atrocious or cruel.

38

Richmond v. Lewis, 113 S.Ct. 528 (1992) and Espinosa v.

Florida, 112 S. Ct. 2926 (1992) held that the Florida statute

establishing the aggravating factor of "heinous, atrocious or

cruel" is vague and overbroad under the Eighth Amendment. Richmond

entitles Mr. Floyd a resentencing before a new jury. This issue

was raised in Mr. Floyd's postconviction motion, where is was held

to be procedurally barred. Order Denying Relief, March 2, 1999 at

5.

Mr. Richmond’s death sentence was vacated and his case was

remanded for a new sentencing. The same result is required in Mr.

Floyd’s case. The Florida Statute defined the aggravating factor

as: "[t]he capital felony was especially, heinous, atrocious or

cruel." Fla. Stat. section 121.141(5)(h) (1981). The statute did

not further define this aggravating factor. This statutory

language is and was facially vague. Richmond, 113 S. Ct. at 535;

Espinosa v. Florida, 112 S. Ct. 2926 (1992)(jury instruction

identical to Fla. Stat. section 121.141(5)(h) unconstitutionally

vague).

While the Supreme Court adopted a narrowing construction of

the statutory provisions, the United States Supreme Court held in

Richmond that a state must also "an adequate narrowing

construction," but that construction must also be applied either by

the sentencer or by the appellate court in a reweighing in order to

cure the facial invalidity. Richmond, 113 S. Ct. at 535.

In Mr. Floyd's case, the narrowing construction was not

39

applied. His penalty phase jury was not given "an adequate

narrowing construction," but instead was simply instructed on the

facially vague statutory language. Following the death

recommendation, the sentencing judge imposed death. Under Florida

law, the judge was required to give great weight to the jury's

verdict.

A sentencing judge in a Florida capital case is required to

give the jury's verdict "great weight." It must be presumed that a

sentencing judge in Florida followed the law and gave "great

weight" to the jury's recommendation. Nothing in Mr. Floyd's case

warrants setting aside that presumption. Florida law requires that

where evidence exists to support the jury's recommendation, it must

be followed. Scott v. State, 603 So. 2d 1275 (Fla. 1992). Here,

the judge considered, relied on, and gave great weight to the

tainted jury recommendation. A "new sentencing calculus" free from

the taint, as required by Richmond, had not been conducted. The

judge was not free to ignore the tainted death recommendation.

Scott.

Mr. Floyd was denied his Eighth Amendment rights. His jury

was permitted to consider "invalid" aggravation because the

aggravating factor specified by Fla. Stat. § 921.141 (5) (h) was

unconstitutionally vague. The jury was not given the proper

narrowing construction so the facial unconstitutionality of the

statute was not cured. Relief is required because the jury is a

sentencer:

40

Florida has essentially split the weighing

process in two. Initially, the jury weighs

aggravating and mitigating circumstances, and

the result of that weighing process is then in

turn weighed within the trial court's process

of weighing aggravating and mitigating

circumstances.

Espinosa, 112 S. Ct. at 2928.

Even if "the trial court did not directly weigh any invalid

aggravating circumstances," it must be "presume[d] that the jury

did so." Id. In imposing death, the trial court presumably

considered the jury recommendation, also presumably giving it the

"great weight" required by Florida law. Id. The errors resulting

from the unconstitutional instruction on the "heinous, atrocious or

cruel" aggravating circumstance and the "cold, calculated and

premeditated" circumstance provided to Mr. Floyd's jury were not

harmless beyond a reasonable doubt. "[W]hen the weighing process

has been infected with a vague factor the death sentence must be

invalidated." Stringer, 112 S. Ct. at 1139.

Mr. Floyd's jury must be presumed to have considered invalid

statutory provisions and to have weighed these factors against the

mitigation. Unless the State can establish beyond a reasonable

doubt that the consideration of the invalid statutory provisions

had no effect upon the weighing process, the errors cannot be

considered harmless. The substantial mitigation in the record

establishes that the errors were not harmless beyond a reasonable

doubt. Appellate counsel failed to raise this issue on direct

appeal, resulting in a finding by the trial court that the issue is

41

now procedurally barred. Mr. Floyd is entitled to relief.

For all of the reasons discussed here, Mr. Floyd respectfully

urges the Court to grant habeas corpus relief.

42

I HEREBY CERTIFY that a true copy of the foregoing motion has

been furnished by United States Mail, first class postage prepaid,

to all counsel of record on July 21, 2000.

___________________________

PAMELA H. IZAKOWITZ

Florida Bar No. 0053856

OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL-SOUTH

303 S. Westland Avenue

P.O. Box 3294

Tampa, FL 33606

(813) 259-4424

Copies furnished to:

Carol M. Dittmar

Assistant Attorney General

2002 North Lois Avenue, Suite 700

Tampa, Florida 33607