Hall v. Wainwright , 733 F.2d 766 ( 1984 )

PER CURIAM:

The appellant, Freddie Lee Hall, appeals the district court’s denial of his application for federal habeas corpus relief, 28 U.S.C.A. § 2254 (West 1977).¹ We affirm in part, reverse in part, and remand.

Facts

On February 21, 1978, Freddie Lee Hall and M.C. Ruffin, decided to steal an automobile for use in robbing a convenience store. They proceeded to Leesburg, Florida, looking for an automobile, and saw Karol Lea Hurst standing beside her automobile in a parking lot outside a convenience store. Hall approached Hurst, forced her into her automobile, and they drove off. Ruffin followed in his automobile. After being driven to a remote area, Hurst was raped, beaten, and murdered by a gunshot to the head from Hall’s revolver.

Hall and Ruffin proceeded to another convenience store, but after purchasing a few items decided not to commit the robbery. While leaving the store, they encountered a policeman and a fight ensued. Ruffin and Hall fled the scene after murdering the policeman with his own revolver. After a chase, law enforcement officers apprehended Hall and Ruffin. Hall confessed. His confession provided the essential evidence linking him to the Hurst murder. In the confession, Hall stated that Ruffin raped and killed Karol Lea Hurst and that he (Hall) did not kill or rape Hurst. Nevertheless, the jury convicted Hall of first degree murder as a principal to the crime, and the trial court sentenced him to death.²

The Supreme Court of Florida upheld Hall’s conviction and sentence.³ Subsequently, Hall filed a state habeas corpus petition pursuant to Florida Rule of Criminal Procedure 3.850. The state trial court denied Hall’s motion, and the Supreme Court of Florida affirmed.⁴

Thereafter, Hall petitioned the United States District Court for the Middle District of Florida for a writ of habeas corpus. The district court denied the writ without an evidentiary hearing.

Hall raises nine issues on appeal: (1) Hall argues that his trial was rendered fundamentally unfair in violation of the fifth and fourteenth amendments to the Constitution of the United States by the admission of evidence of collateral offenses, which became a feature of the trial rather than an incident thereto; (2) he contends the prosecution presented insufficient evidence to prove his guilt beyond a reasonable doubt; (3) he argues that the death sentence is improper because the trial court did not require a finding that he had the intent to kill; (4) Hall argues that certain prosecutorial comments during the guilt and sentencing phases of the trial violated his constitutional rights; (5) he contends that the state court’s utilization of a previous conviction of first degree murder (which was eventually reduced to second degree murder) for an aggravating circumstance violated the eighth and fourteenth amendments; (6) he claims the trial court failed to weigh mitigating circumstances; (7) Hall contends his absence from the courtroom at various stages of the trial violated his due process rights and his right to confrontation under the sixth and fourteenth amendments; (8) Hall argues the trial court erred in denying him an evidentiary hearing on his ineffective assistance of counsel claims; (9) Hall contends the federal district court erred by holding he had failed to exhaust his state remedies with respect to nineteen claims.

(1) Whether Hall’s Trial Was Rendered Fundamentally Unfair in Violation of the Fifth and Fourteenth Amendments by the Admission of Evidence of Collateral Offenses.

Hall contends the admission of evidence relating to the death of the police officer killed in the struggle outside the convenience store, rendered his trial fundamentally unfair. During Hall’s trial, the prosecutor elicited testimony from various witnesses declaring they had seen Hall and Ruffin encounter the police officer outside the convenience store immediately preceding his death. The prosecution also introduced the bullets and revolver used to murder the officer. Hall argues this evidence rendered his trial fundamentally unfair. The state argues that this evidence was properly admitted to show a common scheme or motive of Hall and Ruffin. The Supreme Court of Florida agreed with the state. It held that the collateral crime evidence was “admissible to prove identity (the Hurst murder weapon was found under the police officer’s body) and to show the general context in which the criminal action occurred.” Hall v. State, 403 So.2d 1321, 1324 (1981). The district court agreed with the state supreme court’s ruling.

Federal courts possess limited authority to review state evidentiary rulings in a habeas corpus action by a state prisoner. Burgett v. Texas, 389 U.S. 109, 113-14, 88 S.Ct. 258, 260-61, 19 L.Ed.2d 319 (1967); Nordskog v. Wainwright, 546 F.2d 69, 72 (5th Cir.1977). Moreover, “the general rule is that a federal court will not review a trial court’s actions with respect to the admission of evidence.” Nettles v. Wainwright, 677 F.2d 410, 414 (5th Cir.1982) (citing Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 286, 86 L.Ed. 166 (1941)). Before any relief concerning a state evidentiary ruling may be granted, “the violation must rise to the level of a denial of ‘fundamental fairness.’ ” Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983); Dickson v. Wainwright, 683 F.2d 348, 350 (11th Cir. 1982); Bryson v. Alabama, 634 F.2d 862, 864-65 (5th Cir.1981).

In the context of this trial, the admission of evidence relating to the police officer’s murder failed to render Hall’s trial fundamentally unfair. The evidence related to the identity of Hall as a suspect in the Hurst murder. The evidence also pertained to Hall and Ruffin’s common scheme and motive to commit certain crimes that day. Since the evidence was neither a critical nor a highly significant factor in the presecution’s case, we cannot say that its admission rendered Hall’s trial fundamentally unfair. Shaw, 695 F.2d at 531.

(2) Whether Hall Was Convicted and Sentenced to Death Without Sufficient Evidence to Prove His Guilt Beyond a Reasonable Doubt

Hall contends that insufficient evidence existed to prove beyond a reasonable doubt that he murdered Hurst. He claims, therefore, that his conviction and death sentence deny him due process and subject him to cruel and unusual punishment in violation of the fifth and fourteenth amendments. The state argues that sufficient evidence existed to convict Hall of first degree murder.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court articulated the standard for federal courts reviewing a state court conviction where the defendant contends that evidence is insufficient to prove his guilt beyond a reasonable doubt. The Court stated that the relevant question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789. See also Duncan v. Stynchombe, 704 F.2d 1213, 1214-15 (11th Cir.1983).

To convict Hall of first degree murder, the state had to prove either that he had a “premeditated design to effect the death of the person killed,” Fla.Stat. § 782.-04(l)(a)(l) (West Supp.1983), or that he was a principal in the first degree to the murder. Fla.Stat. § 777.011.⁵ If the jury found that Hall had a premeditated design to kill Hurst or aided and abetted Ruffin in the killing of Hurst, it was authorized to find Hall guilty of first degree murder and recommend a sentence of death.

In viewing the evidence in the light most favorable to the prosecution, we find that the evidence establishes that Hall either had a premeditated design to kill Hurst or aided and abetted in her murder. Hall abducted Hurst and drove her to the site where she was killed with his revolver. Her personal belongings were found in the automobile in which Hall attempted to escape. A rational trier of fact could have found that Hall either intended to kill Hurst or aided and abetted in her murder. Hall’s conviction and death sentence does not violate the standard enunciated in Jackson v. Virginia.

(3) Whether Hall’s Death Sentence is Unconstitutional Because the State has Failed to Prove Hall Had the Intent to-Kill

Citing Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), Hall contends his sentence of death is unconstitutional because no proof existed that he killed or intended to kill. In Enmund, the Supreme Court held that the eighth amendment prohibits imposition of the death penalty on an individual who neither took life, attempted to take life, intended to take life, or intended to utilize lethal force. Enmund, 458 U.S. at 797, 102 S.Ct. at 3376, 73 L.Ed.2d at 1151. While we do not dispute Hall’s contention that Enmund stands for the proposition that an accused may not be sentenced to death absent proof that he killed, attempted to kill, intended to kill, or intended to use lethal force, we find that evidence existed to support Hall’s death sentence.

In determining whether a death sentence is unconstitutionally imposed, we must look to the individual culpability of the accused. Enmund, 458 U.S. at 799-01, 102 S.Ct. at 3377-78, 73 L.Ed.2d at 1153-54; Ross v. Hopper, 716 F.2d 1528, 1529 (11th Cir.1983). Hall’s personal culpability is far more flagrant than that of the accused in Enmund. Earl Enmund drove the getaway ear during a robbery at a farmhouse. He was not present at the farmhouse where the murder occurred. The record also failed to disclose that he intended to kill or attempted to kill. Enmund, 458 U.S. at 788-89, 102 S.Ct. at 3372, 73 L.Ed.2d at 1145-46. At the least, Hall was present when Hurst was murdered, and he aided in her abduction. Moreover, Hall’s gun was used to murder Hurst. This evidence supports a finding that Hall either took life, attempted to take life, intended to take life, or intended to utilize lethal force.⁶

Therefore, after “examining the individual culpability of the defendant, as did the Supreme Court in Enmund, we conclude that the punishment was not disproportionate in relation to Hall’s participation in the crime.” Ross v. Hopper, 716 F.2d 1528, 1533 (11th Cir.1983). See also Henry v. Wainwright, 721 F.2d 990, 995 (11th Cir.1983).

Moreover, the trial court adequately instructed the jury that it had to find that Hall personally had the intent to kill. The court instructed as follows: “A premeditated design to kill is the fully formed conscious purpose to take human life, formed upon reflection and present in the mind at the time of the killing.” At another place during the instructions, the court stated: “It will be sufficient proof of such premeditated design if the circumstances attending the homicide and the conduct of the accused convince you beyond a reasonable doubt of the existence of such premeditated design at the time of the homicide.” (Emphasis added.)

Hall, however, contends that the Fifth Circuit decision in Clark v. Louisiana State Penitentiary, 694 F.2d 75 (5th Cir.), rehr’g denied, 697 F.2d 699 (5th Cir.1983), is dispositive of this issue. We disagree. In Clark, Clark and another robbed a restaurant and, during the course of the robbery, murdered the assistant manager. The jury convicted Clark of first degree murder, and the court sentenced him to death. The Fifth Circuit reversed his conviction and sentence.

The Fifth Circuit looked to the overall jury charge and found that the jury was told “that they could find evidence of [Clark’s intent to kill] in acts of butchery— by Glover — if the two of them had combined to commit the crime of armed robbery.” Id. at 77. The jury was not compelled to determine whether Clark had the specific intent to kill as required by the Louisiana statute. The jury instruction created a presumption that Glover’s acts were intended by Clark. The Fifth Circuit, therefore, held that the jury instructions “relieved the prosecution of its burden in violation of Mullaney v. Wilbur, 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] (1975), and cast the burden of disproving that intent upon Clark, in violation of Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979).” Clark, 694 F.2d at 77.

This case differs from Clark. Clark was charged with first degree murder, and the jury was instructed to find the defendants guilty of any crime, including murder, committed in furtherance of the robbery, the underlying crime. It was unnecessary for the jury to find Clark had the intent to kill to convict him of murder in the first degree. Intent was presumed. No underlying crime existed in this case by which the jury could have presumed Hall intended to kill. The jury was not instructed to find Hall guilty of first degree murder if it found the murder was committed in furtherance of another crime. The burden of proving intent to kill remained with the prosecution. Therefore, the problem present in Clark does not exist in this case.

(4) Prosecutorial Remarks During the Guilt and Sentencing Phases of the Trial

A. Remarks During the Guilt Phase

Hall alleges that certain remarks by the prosecutor during the guilt phase of his trial denied him due process of law and deprived him of a reliable determination of guilt in a capital trial as required by the sixth, eighth, and fourteenth amendments to the federal constitution. The state argues the prosecutorial remarks were proper and did not violate Hall’s constitutional rights.

During his closing argument, the prosecutor referred to Hall by stating: “[T]he evidence shows us that this defendant sitting right over there, and he’s asleep ____” Hall urges us to reverse his conviction because this statement was an improper comment on his failure to testify. We disagree.

A prosecutor may not comment on a defendant’s failure to testify, and it is reversible error to do so. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965); United States v. Brown, 546 F.2d 166, 173-74 (5th Cir.1977).

The standard for determining if there has been an impermissible comment on a defendant’s right to remain silent at the time of his arrest or his right not to testify at trial is whether the statement was manifestly intended or was of such character that a jury would naturally and neeessarily take it to be a comment on the failure of the accused to testify,

United States v. Vera, 701 F.2d 1349, 1362 (11th Cir.1983); United States v. Dearden, 546 F.2d 622, 625 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188 (1977). In applying this test, the court must “look to the context in which the statement was made in order to determine the manifest intention which prompted it . . , . , and its natural and necessary impact upon the jury.” Samuels v. United States, 398 F.2d 964, 967 (5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969).

The prosecutor s comment on Hall s sleeping during the trial was not a comment on Halls failure to testily. It was not intended to be nor was it of such a , , ,, , .. ^ t character that a jury would naturally and necessarilv take it to be Vera 701 F 2d at necessarily take it to be. Vera (011 .M at 1362; Dearden, 546 F.2d at 625. The com- ’ . , ’ . , . TT ,,, , ment simply related to Halls demeanor j ■ 4.U l-i rr n i . j ,, , during the trial. Hall also contends that ,, , , . , tte prosecutor .mproperly commented on his failure to testify on three other occasions.⁷ These statements do not comment on Hall’s failure to testify. The prosecutor merely explains to the jury that Hall has confessed to all of the facts of the crime except the killing of Hurst. The jury would not take these remarks as calling attention to the failure of Hall to testify, The prosecutor, therefore, has not violated the holding in Griffin v. California.⁸

Hall also contends that another prosecutorial remark during the guilt phase was improper and prejudicial. During his closing argument, the prosecutor stated:

j ¿[on’t know; there she is, we can’t bring her back, you know; I don’t know much worBe that you could have. I really don’t know ... now this is a tragic ease. We have a deceased woman; she can’t testify_ i don’t know how quick death comes tQ j j kn0w some die hard, some ,. T, , .* die easy. It comes to all of us sooner or later.

The state argues that this remark was not prejudicial.

In reviewing a claim of prosecutorial misconduct ^ a habeas corpus case> we must determine Whether the prosecutor’s ac- ,. n tions [were] of such a nature as to render , . „ „ . „ „ ,, the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 642-45, 94 S.Ct. 1868, 1871-72, 40 L.Ed.2d 431 (1974); Brooks v. Francis, 716 F.2d 780, 787 (11th Cir.1983); Hance v. Zant, 696 F.2d 940, 950-51 (11th Cir.), cert. denied, — U.S. —, 103 S.Ct 3544, 77 L.Ed.2d 1393 (1983). We consider the totallty of the circumstances m making this determmatl0n' Brooks, 716 F.2d at Hance, 696 F.2d at 950. APP]ying these standards, the Prosecutor’s comment during the guilt Phase did not reach a leve.1 which made the trial fundamentally unfair. Brooks, 716 F.2d at 788. The prosecutor was simply stating a fact; Karol Lea Hurst was dead and she could not testify. These comments are barely questionable; certainly, they are not of constitutional magnitude. Hance, 696 F.2d at 950; Houston v. Estelle, 569 F.2d 372, 377-78, n. 8 (5th Cir.1978).⁹

B. Remark During the Penalty Phase

Hall also challenges a remark made by the prosecutor during the closing argument at the penalty phase of the trial. The prosecutor stated: “Ladies and gentlemen of the jury, with all due sincerity, I don’t see any mitigation in this particular case.” The sentencing phase of a capital murder trial in Florida presents a different situation than the guilt phase. In Florida, the jury has the choice of recommending a life sentence or the death penalty after finding the defendant guilty. Fla.Stat. § 921.141(2) (West Supp.1983). While the jury’s recommendation of life or death is only advisory, it is of critical importance that a prosecutor not play on the passions of a jury with a person’s life at stake. Brooks, 716 F.2d at 788; Hance, 696 F.2d at 951. While the prosecutor’s comment expressing his personal opinion to the jury is questionable, it is not unconstitutional. Hance, 696 F.2d at 951. The remark did not incite the passions and fears of the jury. Brooks, 716 F.2d at 788.

(5) Whether the Conviction for Killing the Policeman was Improperly Utilized to Show the Aggravating Circumstance of Prior Criminal History

Hall claims that because the Supreme Court of Florida reduced his sentence for murdering the police officer from first to second degree murder, the conviction should not have been used to show the aggravating circumstance of prior criminal history. Hall v. State, 403 So.2d 1319 (Fla. 1981). Hall contends that this error deprived him of his rights under the eighth amendment to a fair and reliable determination of his penalty. The state contends the utilization of the police officer’s murder was proper to support an aggravating circumstance of prior criminal history.¹⁰

Hall’s claim lacks merit. Under Florida law, an aggravating circumstance exists when a defendant has been “previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Fla.Stat.Ann. § 921.141(5)(b) (West Supp.1983). A second degree murder conviction satisfies this standard. Therefore, the police officer’s murder was properly utilized to find the aggravating circumstance of prior criminal history. Furthermore, Hall’s 1968 conviction for assault with intent to commit rape was before the trial court and was sufficient to support the existence of this aggravating circumstance.

(6) The Trial Court’s Failure to Weigh Mitigating Factors

Hall asserts that the trial court failed to consider relevant mitigating circumstances, thereby rendering his death sentence arbitrary and capricious in violation of the eighth and fourteenth amendments.¹¹ Hall contends that his testimony during the sentencing phase of the trial was sufficient to prove the mitigating circumstances of diminished capacity to appreciate the criminality of his conduct and under influence of extreme emotional disturbance.¹² Fla.Stat.Ann. § 921.141(6)(b), (f) (West Supp.1983). We disagree.

The evidence presented by Hall was insufficient to compel the trial court to find the existence of a mitigating circumstance. While the sentencer must consider all evidence presented in mitigation, he also determines the weight to be given to evidence of relevant mitigating circumstances. Eddings v. Oklahoma, 455 U.S. 104, 114-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). In the present case, we cannot conclude that the sentencer erred in holding that Hall’s proffered evidence was insufficient to establish these mitigating circumstances.

(7) Hall’s Absence From Various Stages of His Trial.

Hall urges that his due process rights and his right to confrontation were violated by his absence during (1) the general qualification of jurors; (2) a discussion on various legal motions; (3) his counsel’s stipulation to the exeusal of an alternate juror; (4) the marking for identification of an exhibit; (5) the release of the remaining alternate jurors at the end of the guilt phase; (6) the trial court’s discussion with the jury concerning their request for certain items of evidence during deliberation; and (7) the trial judge's dismissal of the jury. The state contends that Hall was present at all critical stages of the trial, and therefore, his absence did not violate any of his rights. Agreeing with the state, the district court held that Hall was not absent from any critical stages of the trial, and that Hall had waived his right to be present at the various stages of his trial.

“[A]n accused has [the] right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 2533, n. 15, 45 L.Ed.2d 562 (1975); Snyder v. Massachusetts, 291 U.S. 97, 105-08, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934); United States v. Stratton, 649 F.2d 1066, 1080 (5th Cir.1981). In this case, the district court determined that Hall’s absence from the various stages of the trial did not violate his due process rights.

We are concerned about two matters: (1) the circumstances surrounding Hall’s absence during the trial court’s discussion with the jury concerning items of evidence during the jury’s deliberations, and (2) the effect of our recent holding that a defendant may not waive his presence in a capital case announced in Proffitt v. Wainwright, 685 F.2d 1227, 1256-58 (11th Cir.1982), modified on reh’g, 706 F.2d 311 (11th Cir.1983), cert. denied — U.S. -, 104 S.Ct. 508, 509, 78 L.Ed.2d 697, 698.¹³ Precedent in this circuit suggests that Hall’s absence during discussions with the jury may constitute error. United States v. Benavides, 549 F.2d 392 (5th Cir.1977). We read Proffitt to hold that a defendant may not waive his presence at any critical stage of his trial.

This record requires further development for a determination of (1) why Hall was absent during communications with the jury, (2) what was communicated to the jury, and why, (3) whether Hall knowingly and willingly waived his right to be present, (4) was Hall removed from the courtroom because of misconduct, (5) what “security” reason caused Hall to be absent from the trial at one point, and (6) whether Hall’s absence was at a non-critical stage of the trial and, therefore, harmless. The only thing in the record to show anything regarding Hall’s absence is his lawyer’s statement (also made in Hall’s absence) that, “I think the record ought to reflect that I personally talked to my client before we picked the twelve trial jurors and asked if he had any problem with it. He made the statement whatever I want to do is fine, that I was to run the show. ’

(8) The Federal District Court’s Denial of a Hearing on Hall’s Ineffective Assistance of Counsel Claims

The federal district court decided Hall’s ineffective assistance of counsel claims without holding an evidentiary hearing. Hall v. Wainwright, 565 F.Supp. 1222, 1240-42 (M.D.Fla.1983). It adopted the state court’s ruling after holding that Hall had deliberately bypassed his opportunity for an evidentiary hearing on his ineffective assistance of counsel claim in state court. Id. at 1241. The district court based its decision of deliberate bypass on one sentence Hall’s counsel uttered in the rule 3.850 hearing.¹⁴ This sentence was sufficient evidence for the district court to conclude that Hall had deliberately bypassed his opportunity to produce evidence in the rule 3.850 hearing.

While Hall’s counsel did state that he did not want to put on evidence as a matter of tactics, there are other statements in the record which show that Hall’s counsel’s decision not to put on evidence was not a tactical decision, but a decision compelled by the exigencies of the circumstances.

On September 20, 1982, the trial court ordered the public defender to confer with Freddie Lee Hall and advise him of his ■rights under Florida Rule of Criminal Procedure 3.850. The trial court also ordered the public defender to file all motions under rule 3.850 by September 27. The court extended this deadline to 9 a.m., September 28. Hall was scheduled to be electrocuted on October 6, 1982. Consequently, the public defender had seven days to confer with his client, advise him of his rights, prepare pleadings, prepare a strategy for the hearing, interview witnesses, and obtain information for the hearing.¹⁵ Throughout the state habeas corpus hearing, Hall’s attorney argued that he was unprepared to proffer any evidence because of the stringent time limitations.

During the rule 3.850 hearing, Hall s counsel had incorporated a motion for continuance into his motion to vacate and set aside the sen*ence' Duriag the areument the motl™ continuance, Hal1 s attorney stated’ Whis is not a ploy to PostPone ultimate judgment _ on Mr. HalL” DurmS the rule 3-850 motlon hear“ s attorney stated that [he] was no^ PrePared at this time to call witnesses, ^ m no^ adequately prepared to examine or cross-examine any witnesses with regard to the allegations in the motion.” Hall’s attorney also stated, “We are not prepared to conduct an evidentiary hearing.” Concern-inS Hall’s attorney’s decision not to put Hall’s trial attorneys on the stand, Hall’s attorney stated:

With regard to Mr. Brown’s assertion that what we are seeking is the truth here, we certainly concur in that, Your Honor. The point is Mr. Brown is too good of a trial counsel — and I’ve seen and witnessed and been against him in too many cases — to know that Mr. Brown would suggest to the Court, in a situation this serious, I put a witness on stand> n°t having been able to fully explore how he s going to answer my questions and start asking open-ended questions. He doesn t do that at trial. I ^on ^ that at trial, and I don t intend to do it here.

These statements support Hall’s contention that his lawyers were not prepared to conduct a rule 3.850 motion, and therefore, produced no evidence at the hearing.¹⁶

Unless it is clearly shown on the record that a deliberate bypass has occurred, a federal court must hold an evidentiary hearing to discern whether a deliberate bypass has occurred. Thomas v. Zant, 697 F.2d 977, 988-89 (11th Cir.1983); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir.1978); Coco v. United States, 569 F.2d 367, 370-71 (5th Cir.1978). The district court ruled that Hall deliberately bypassed his right to vindicate himself in state court. The district court relied on one statement, but other statements to the contrary in the record indicate Hall did not bypass. Since the record does not clearly show a deliberate bypass, the district court must hold an evidentiary hearing on whether Hall deliberately bypassed his state remedies. Thomas, 697 F.2d at 988-89.

(9) The Barring of Various Claims from a Ruling on Their Merits by the District Court

The district court determined that certain claims raised in Hall’s habeas corpus petition were barred from its consideration. It held that Hall had failed to exhaust his state court remedies as to these claims, and therefore, was precluded from raising them in federal court. Hall v. Wainwright, 565 F.Supp. 1222, 1226-35 (M.D.Fla.1983). Hall contends he is not precluded from raising these claims for three reasons: (a) Florida does not enforce its procedural default rules in capital cases; (b) the state courts ruled on the merits of the claims; and (c) “cause” and “prejudice” exist to excuse his default.

(a) Florida Does Not Enforce Its Procedural Default Rules in Capital Cases

Hall argues that the Supreme Court of Florida does not enforce its procedural default rules in capital cases. This claim is without merit. The Supreme Court of Florida enforces its procedural default rules in capital cases. See Meeks v. State, 382 So.2d 673 (Fla.1980), aff'd, 418 So.2d 987 (Fla.1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983); Adams v. State, 380 So.2d 423 (Fla.1980). See also, Ford v. Strickland, 696 F.2d 804, 816 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

(b) The State Courts’ Ruling on the Merits

Hall claims the Supreme Court Florida ruled on the merits of certain claims, and, therefore the state waived its Procedural default rule. We disagree.

Hall points to a comment made by the Supreme Court of Florida to support his contention: “Hall presented the trial court with numerous other points regarding his sentencing. As did the trial court, we find no merit to them.” Hall v. State, 420 So.2d 872, 874 (Fla.1982). Earlier in the opinion, however, the court had stated: “[t]he majority of issues raised in the motion to vacate were raised on appeal. Most °f the remaining issues could have been raised there. They are, therefore, not matters which will support a collateral attack.” Id. at 873.

To discern whether procedural default has occurred where the state courts have discussed the merits of a constitutional challenge after ruling that no procedural default has occurred, this court must determine the basis of the state court decision. Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). The Supreme Court of Florida based its decision on the procedural default rule. Its discussion of the merits was an effort to dispose of the claims in the event its procedural ruling was jn error. Ratcliff, 597 F.2d at 478. Moreover, “a court will not reach a constitutional question if it can base its decision on nonconstitutional grounds.” Ratcliff, 597 F.2d at 478. See Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947). A state court is entitled to express its views on federal constitutional issues without waiving its procedural default rules. See United States Ex rel. Caruso v. Zelinsky, 689 F.2d 435, 439-41 (3rd Cir.1982). Since the Supreme Court of Florida based its holding on a valid procedural rule, the district court was correct in not considering the claims barred for that reason. Ratcliff, 597 F.2d at 477.

(c) “Cause” and “Prejudice”

Since the state court refused to hear the constitutional claims because of its valid procedural rules, Hall must show “cause for” and “prejudice from” his failure to timely raise the claims. Engel v. Isaac, 456 U.S. 107, 110-11, 102 S.Ct. 1558, 1562-63, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 90-92, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977); Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir.1983). Hall contends that cause exists for his failure to timely raise these claims because his counsel was ineffective.

Because it held that Hall had deliberately bypassed state opportunities to present the claim, the district court never ruled on the merits of Hall’s ineffective assistance of counsel allegations. Therefore, we cannot determine whether Hall has established “cause” because of his counsel’s ineffectiveness until the district court holds a hearing on the deliberate bypass issue. If the district court concludes that Hall did not deliberately bypass his state remedies, it must hold a hearing on the ineffective assistance of counsel claim; and if the district court finds that Hall's counsel was ineffective, Hall is entitled to a new trial. The establishment of “cause” and “prejudice” becomes irrelevant. If the district court determines that Hall’s attorney was effective, Hall has failed to establish “cause.” If the district court holds that a deliberate bypass has occurred, Hall will never be able to show “cause” because his ineffective assistance of counsel claim will be barred from our review. Resolving this issue, therefore, depends on the district court’s ruling on whether a deliberate bypass has occurred.

At the hearing on the deliberate bypass issue, the parties should be allowed to show the circumstances which lead to Hall’s absence during communications with the jury. The district court judge may designate the procedure to be used by the parties to make these circumstances known.

Conclusion

Having determined that Hall is entitled to a hearing on his absence from the courtroom issue and an evidentiary hearing on whether he deliberately bypassed, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

APPENDIX

During the 3.850 motion hearing, Hall’s attorney stated, in part:

With the Court’s indulgence, I would like to read into the record, since our appointment the work schedule which Mr. Johnson and I together have engaged in solely related to this matter. The time records herein are the times that we were both working together. In other words, I have not added the times together, these would be double if you were counting man power.

Tuesday, September 21, 1982, 10:30 A.M. to 6:00 P.M., we went to Florida State Prison in Starke, conferred with the defendant and began our draft on the initial motions. Wednesday, September 22, 7:30 in the morning through 6:30 in the afternoon, except for about an hour and a half, we had to attend other business, reviewed the trial transcript. Thursday, September 23, 8:00 in the morning until 10:30 in the evening, less one hour when we were required to be in Court in Tavares, reviewed the trial transcript. Friday, 8:00 in the morning through 12 midnight, we reviewed the trial transcript and depositions taken by counsel. Saturday, September 25, 9:30 in the morning until 10:00 in the evening, we completed review of the trial transcript. Sunday, September 26, 10:00 A.M. through 8:30 P.M. we prepared draft motions and draft of rule 3.850 motion, Application for Stay of Execution, and Memorandum in Support Thereof, and other documents. Monday, September 27, from 9:00 A.M. on that day through 3:00 A.M. the next day, prepared pleadings, etc.

and attended a hearing before you with regard to certain outstanding motions.

....

I would state for the record neither I nor Mr. Johnson have reviewed Mr. Aulls and Robuck’s files. In fact, both of them refused to give us their files until we gave them a letter from Mr. Hall suggesting his permission, which I also suggest was exactly what they should have done as counsel. It was only two days ago we were able to obtain that written release from the Defendant, not because of any delay on his part or ours, but we just didn’t understand that it would be their position although we should have anticipated that.

We have been through their files to some extent. Mr. Johnson has looked at Mr. Robuck’s file with particular regard to how much time was spent on the case. We’d like to state clearly and unequivocally in the record we are not suggesting that Mr. Aulls and Mr. Robuck are incompetent lawyers. They are, rather, respected members of the Lake County Bar. Our suggestion in the brief is that they may not have provided effective assistance of counsel in this particular case due to a myriad of factors which we’re not prepared to discuss or examine them on.

We also suggest we didn’t know what issues to even begin to investigate until we read the eleven-hundred-page transcript and examined the documents.

I have nothing to offer at an evidentiary hearing at this time, Your Honor, except for one matter.

....

I do realize the trial strategy defense is there and that to the extent someone can allege somewhere it was a matter of strategy and tactics rather than ineffective assistance and perhaps the same wouldn’t be claimed. As I said before, some of these claims may stand, some may not. I am not prepared to proceed at this time, Your Honor, realizing full well, having followed Mr. Ruffin’s case very carefully, precisely the wrath which I will incur when I come before the Florida Supreme Court not having put on testimony. I choose to do that as a matter of tactics at this time.

1 . Title 28 U.S.C.A. § 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

2 . Hall was convicted as a principal in the first degree under Fla.Stat.Ann. § 777.011, which provides:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

3 . Hall v. State, 403 So.2d 1321 (Fla.1981).

4 . Hall v. State, 420 So.2d 872 (Fla.1982).

5 . Fla.Stat. § 782.04(l)(a)(l), (2) and (3) defines murder as:

(l)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being; or

2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1),

b. Arson,

c. Sexual battery,

d. Robbery,

e. Burglary,

f. Kidnapping,

g. Escape,

h. Aircraft piracy, or

i. Unlawful throwing, placing, or discharging of a destructive device or bomb; or

3. Which resulted from the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

Freddie Lee Hall was not tried on a felony murder theory. Therefore, only section 782.-04(a)(1) is applicable.

6 . Hall obtained the gun the morning of the murder. This fact supports a finding that Hall either killed, attempted to kill, intended to kill, or intended to use lethal force.

7 . The prosecutor stated: (1) "So what happens then? Here we come into something that’s important. Who says that Ruffin killed her? I wasn’t there. Karol Hurst is dead.” (2) "This man admits all of it. The only thing he is not saying is, he is saying, 7 did everything, but I didn’t kill her, I didn’t have anything to do with that.’ That’s the big thing, that’s the biggie, that’s what he’s saying.” (3) "Now this is a tragic case. We have a deceased woman; she can’t testify. I don’t know how quick death comes to people; I know some die hard, some die easy. It comes to all of us sooner or later.”

8 . Our holding is supported by the curative instruction the trial court gave to the jury concerning Hall’s failure to testify:

In every criminal proceeding the defendant has the absolute right to remain silent. At no time is it the duty of a defendant to prove his innocence. From the exercise of the defendant’s right to remain silent a jury is not permitted t0 draw any inference of guilt, and the defendant s failure to take the witness stand m,ust not bec considered in any manner an admission of guilt, nor should his failure to íake the wltness s‘a7ld “fluence your verdict m any manner whatsoever.

9 . Hall also contends that the prosecutor on various occasions remarked about items not received into evidence. This claim lacks merit because the alleged errors do not rise to the level of constitutional magnitude. Houston, 569 F.2d at 377-78, n. 8 (1978).

10 . In Florida, a death sentence can be recommended by the jury and imposed by the trial court when aggravating circumstances exist which outweigh the mitigating circumstances. FIa.Stat.Ann. § 921.141(2), (3) (Supp.1983).

11 . Fla.Stat.Ann. § 921.141(6) (West Supp.1983) provides seven mitigating circumstances for the jury to consider:

(6) Mitigating circumstances. — Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(c) The victim was a participant in the defendant’s conduct or consented to the act.

(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

(e) The defendant acted under extreme duress or under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

The jury, however, is not limited to these enumerated factors, and may consider any evidence in mitigation it deems relevant. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

12 . During the sentencing hearing, Hall stated, "I was high when this taken place, I wasn't drunk, I was high, and I’m sorry to say I really don’t want no one to get killed in this case, but it happened that way. I’m sorry it happened that way.”

13 . Hall contends that he may not waive his presence in a capital case, and therefore, his absence violated his due process rights.

14 . Hall’s counsel stated, “I choose to [not put on any testimony] as a matter of tactics at this tlme"

15 . The public defender first conferred with Hall on September 21.

16 . More evidence supporting Hall’s attorney’s contention that he was unprepared to proffer any evidence because of the time limitations appears in the appendix.