1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-16243

________________________

D.C. Docket No. 1:06-cv-20570-AJ

ASKARI ABDULLAH MUHAMMAD, 

f.k.a. Thomas Knight,

 Petitioner–Appellee

 Cross Appellant, 

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Respondents–Appellants

 Cross Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(September 23, 2013)

Before MARCUS, WILSON, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge: 

To learn about the gridlock and inefficiency of death penalty litigation, look 

no further than this appeal. Askari Abdullah Muhammad kidnapped and murdered 

Case: 12-16243 Date Filed: 09/23/2013 Page: 1 of 44 
2

Sydney and Lillian Gans four decades ago, in 1974. A Florida jury convicted 

Muhammad of murder, a Florida judge sentenced him to death, and the Supreme 

Court of Florida affirmed his conviction and sentence on direct appeal. While he 

awaited state collateral review, Muhammad killed again; this time, Muhammad 

murdered a prison guard because he was upset that he had been denied permission 

to meet with a visitor. In 1988, after the Florida courts denied Muhammad 

postconviction relief, we granted Muhammad’s petition for a writ of habeas corpus 

and vacated his death sentence because of impermissible comments by the trial 

judge and counsel for both parties. A state trial judge resentenced Muhammad to 

death, and the Supreme Court of Florida again affirmed his conviction on direct 

appeal and collateral review, but in 2012 the district court granted Muhammad a 

federal writ of habeas corpus on the ground that his right to confrontation had been 

violated at his resentencing hearing.

Now, four decades after Muhammad killed Sydney and Lillian, we reverse 

the grant of the writ and deny Muhammad’s petition. Muhammad’s claim that the 

admission of hearsay testimony at his resentencing hearing violated his rights 

under the Confrontation Clause, U.S. Const. Amend. VI, fails because hearsay is 

admissible at capital sentencing and Muhammad had an opportunity to rebut the 

hearsay. Muhammad’s claim that the application of the cold, calculated, and 

premeditated statutory aggravating factor violated his rights under the Ex Post 

Case: 12-16243 Date Filed: 09/23/2013 Page: 2 of 44 
3

Facto Clause, id. Art. I, § 9, fails because the retrospective application of the factor 

did not disadvantage Muhammad. We reverse the judgment in favor of 

Muhammad and render a judgment in favor of the Secretary.

I. BACKGROUND

On July 17, 1974, Muhammad (who then was named Thomas Knight) 

kidnapped and murdered Sydney and Lillian Gans near Miami, Florida. When 

Sydney arrived at work that Wednesday morning and parked his Mercedes Benz 

car, Muhammad ambushed him and ordered him back into the car. Muhammad 

commanded Sydney to drive home and pick up his wife Lillian, and then to drive 

to a bank and retrieve $50,000 in cash. Sydney went inside the bank to retrieve the 

money, but he also told the bank president that Muhammad was holding him and 

his wife hostage. The bank president alerted the police and Federal Bureau of 

Investigation. 

Muhammad then forced Sydney and Lillian to drive toward a secluded area 

on the outskirts of Miami. Police officers in street clothes shadowed the Mercedes 

in unmarked cars. A helicopter and a small fixed-wing surveillance airplane also 

eventually joined the surveillance. The officers followed the vehicle, but they lost 

sight of the car for about four or five minutes. During that time, Muhammad killed 

Sydney and Lillian with gunshots to the neck that he fired from the back seat of the 

car. The police found the vehicle sitting in a construction area with the front 

Case: 12-16243 Date Filed: 09/23/2013 Page: 3 of 44 
4

passenger door, the right rear passenger door, and the trunk open. Police saw 

Muhammad running away from the vehicle and toward a wooded area with an

automatic rifle in his hands. Police found the dead body of Lillian behind the 

steering wheel and the dead body of Sydney about 25 feet from the vehicle. About 

four hours later, police apprehended Muhammad about 2,000 feet from the vehicle. 

Muhammad had blood stains on his pants; buried beneath him in the dirt were an 

automatic rifle and a paper bag containing $50,000. 

In September 1974, Muhammad escaped from prison. After a massive 

nationwide manhunt, police finally captured Muhammad in December 1974. In 

1975, a Florida jury convicted Muhammad of the murders of Sydney and Lillian, 

and the trial judge sentenced him to death. The Supreme Court of Florida affirmed 

his conviction and sentence on direct review. See Knight v. State, 338 So. 2d 201 

(Fla. 1976).

In 1980, while Muhammad’s petition for postconviction relief was pending 

before Florida state courts, Muhammad killed again. This time, he fatally stabbed 

a prison guard, Officer James Burke. Muhammad killed Burke because he was 

upset that he had been denied permission to meet with a visitor. Muhammad was 

convicted and sentenced to death for that murder too, and Muhammad currently 

awaits execution for the murder of Burke. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 4 of 44 
5

After his convictions for the murders of Sydney and Lillian became final, 

Muhammad embarked on an odyssey for postconviction relief that has spanned 

more than three decades. The Florida state courts denied Muhammad 

postconviction relief. See Knight v. State, 394 So. 2d 997 (Fla. 1981); Muhammad 

v. State, 426 So. 2d 533 (Fla. 1982). After a federal district court denied 

Muhammad’s petition for a writ of habeas corpus, we vacated his death sentence, 

but not his conviction. Knight v. Dugger, 863 F.2d 705 (11th Cir. 1988). We held 

that comments of the trial judge, prosecutor, and defense counsel suggested that 

the jury was only permitted to consider statutory mitigating factors at the penalty 

phase, in violation of the Eighth and Fourteenth Amendments, U.S. Const. 

Amends. VIII, XIV, as interpreted by the Supreme Court of the United States in 

Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978). Knight, 863 F.2d at 709–10. 

We remanded the matter for the State to either resentence Muhammad or impose a 

lesser sentence than death. Id. at 710. Eight years later, in 1996, a Florida trial 

court resentenced Muhammad to death for the murders of Sydney and Lillian. 

This appeal concerns whether Muhammad’s rights under the Confrontation Clause 

and the Ex Post Facto Clause were violated at that resentencing hearing.

At Muhammad’s resentencing hearing, Detective Greg Smith testified on 

behalf of the State about some of the evidence presented at the guilt phase of 

Muhammad’s trial. Smith had not testified at the trial in 1975, but he had been 

Case: 12-16243 Date Filed: 09/23/2013 Page: 5 of 44 
6

assigned to the case after the lead investigator, Detective Julio Ojeda, retired from 

the police force. Smith’s testimony began on January 31, 1996. When Smith first 

began to testify about the sworn testimony of one of Sydney’s co-workers named 

Milton Marinek, Muhammad’s lawyer objected that Smith’s testimony would 

violate Muhammad’s rights under the Confrontation Clause. Muhammad’s lawyer 

argued that Smith was “telling the jury what other people did, what other people 

said, . . . and the objection I raise is this violates the . . . confrontation rights of the 

defendant.” Muhammad requested a “continuing objection” to Smith’s testimony. 

The trial court overruled Muhammad’s objection, but stated that it “will accept this 

objection as a continuing objection for all testimony from this witness referring to 

what other people told him or anything that is hearsay.” After Smith completed his 

summary of Marinek’s trial testimony, the prosecutor asked Smith to discuss prior 

statements of Howard Perry, who witnessed Sydney and Muhammad arrive at the

Gans home to pick up Lillian. Muhammad’s lawyer objected that the State did not 

present evidence that “Perry is dead or deceased and cannot be here to testify.” 

The district court overruled the objection and told Muhammad’s lawyer, “You 

have made your confrontation rule argument. I have accepted your objection, your 

object [sic] to all of it. I don’t want another sidebar on the subject of hearsay. You 

have preserved your record.” Smith then testified about the prior statements of 

Perry. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 6 of 44 
7

Smith then testified about prior statements of Detective Ojeda, the lead 

investigator. Smith’s summary was based on both the testimony of Ojeda during 

the guilt phase of Muhammad’s trial and written reports that Ojeda prepared in the 

investigation. Muhammad did not object that the State failed to establish that 

Ojeda was unavailable to testify. After Smith testified at length about Ojeda’s 

prior statements, Muhammad raised what he called a “due process” objection to 

Smith’s testimony. Muhammad objected that, when Smith provided a summary of 

Ojeda’s prior statements, Smith failed to distinguish between Ojeda’s statements at 

trial and his statements in the written reports. The district court overruled that 

objection. 

Smith’s testimony established that Ojeda tracked Muhammad’s vehicle

based on information that the police dispatcher provided him. Ojeda then pursued 

the vehicle on foot and eventually discovered the vehicle and Lillian’s dead body 

inside. Ojeda then saw, about 150 feet away, a black man running away from the 

vehicle. The man turned and pointed his gun in the direction of Ojeda, who took 

cover and lost sight of the suspect. When he took cover, Ojeda heard the 

surveillance helicopter overhead and motioned for the pilot to fly toward the 

person Ojeda saw running away from the vehicle. Ojeda later identified 

Muhammad as the man he saw running away from the vehicle. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 7 of 44 
8

At his resentencing hearing, Muhammad attempted to establish that the 

murders of Sydney and Lillian were not premeditated. Muhammad argued that he 

never intended to kill Sydney and Lillian when he ordered them to drive to the 

outskirts of Miami. Muhammad presented expert testimony that he suffered from 

schizophrenia and that he “snapped” and lost self-control when he discovered that 

the police and aircraft were following him. Muhammad argued, based on this 

testimony, that the murders were not premeditated. A critical issue at the 

sentencing hearing concerned when Muhammad became aware of the police 

surveillance. 

To rebut Muhammad’s suggestion that the murders were not premeditated, 

the State argued that Muhammad was unaware of the police surveillance at the 

time of the murders. On February 7, 1996, as part of its rebuttal case, the State

recalled Detective Smith to the witness stand. Smith testified about a sworn 

statement that the helicopter pilot gave to police and the trial testimony and a 

sworn statement of the airplane pilot. Muhammad’s lawyers never objected that 

Smith’s rebuttal testimony about the pilots violated the Confrontation Clause or 

that the State failed to establish that the airplane pilot was unavailable to testify at 

the resentencing hearing. 

Smith’s testimony established that neither the helicopter pilot nor the 

airplane pilot located Muhammad until after he had killed Sydney and Lillian. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 8 of 44 
9

According to Smith, the airplane pilot testified that he had first located the vehicle

after it was stopped and Muhammad had already left the vehicle. And the 

helicopter pilot testified that he was not asked to join the search until about the 

time of the murders, but that police ordered him to land when they lost sight of the 

vehicle to ensure that the surveillance would not be compromised. The helicopter 

pilot did not return to the air until after the vehicle had been found and Muhammad 

was on foot. When Muhammad’s lawyer asked Smith if he thought that 

Muhammad had heard the helicopter, Smith replied, “Absolutely not.” The State

argued, based on Smith’s testimony and the evidence that only plainclothes 

officers and unmarked vehicles participated in the surveillance, that Muhammad 

did not become aware of police surveillance until after he committed the murders.

The jury recommended that Muhammad should be sentenced to death, and 

the trial court imposed a sentence of death. The trial court found that six statutory 

aggravating factors applied to the murders, including that Muhammad committed 

the murder in a cold, calculated, and premeditated manner. The five other 

statutory aggravating factors were that (1) Muhammad committed other violent 

felonies, including the contemporaneous murder of the other victim; (2) 

Muhammad committed the murders during the course of a kidnapping; (3) 

Muhammad murdered Sydney and Lillian to avoid arrest; (4) Muhammad acted for 

pecuniary gain; and (5) the murders were especially heinous, atrocious, and cruel. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 9 of 44 
10

The Supreme Court of Florida affirmed the sentence of death. See Knight v. State, 

746 So. 2d 423 (Fla. 1998).

Muhammad argued on direct appeal to the Supreme Court of Florida that 

Smith’s testimony about the prior statements of Ojeda, the helicopter pilot, and the 

airplane pilot violated his rights under the Confrontation Clause. Muhammad 

argued that the statements of Ojeda and the pilots were inadmissible hearsay and 

that the State never established that Ojeda and the airplane pilot were unavailable 

to testify at the resentencing hearing. The State responded both that Muhammad 

waived those arguments and that the trial testimony was admissible. 

The Supreme Court of Florida rejected Muhammad’s claim on procedural 

grounds. The Supreme Court of Florida stated that, “because [Muhammad] never 

specifically objected to Smith’s testifying as to the contents of the pilot’s 

statement, we find this claim procedurally barred.” Id. at 430. And the Supreme 

Court of Florida stated that it “likewise reject[s] on procedural grounds 

[Muhammad’s] claim that statements by the [airplane] pilot and Detective Ojeda 

should not have been admitted (through the testimony of Smith) absent a showing 

that the pilot and the detective were unavailable” because “[Muhammad] did not 

object to Smith’s testimony as to statements made by either of these persons.” Id.

at 430 n.9.

Case: 12-16243 Date Filed: 09/23/2013 Page: 10 of 44 
11

Muhammad also argued that the application of the “cold, calculated, and 

premeditated” aggravating factor violated his rights under the Ex Post Facto 

Clause, but the Supreme Court of Florida rejected that argument too. Id. at 434. 

The Supreme Court of Florida acknowledged that Muhammad committed the 

murders in 1974, five years before the legislature enacted the aggravator in 1979. 

Id. But the Supreme Court of Florida explained that it had already held in Combs 

v. State, 403 So. 2d 418 (Fla. 1981), that the “application of the [cold, calculated, 

and premeditated] aggravator in this situation is not an ex post facto violation.” 

Knight, 746 So. 2d at 434. The Supreme Court of Florida later denied Muhammad 

postconviction relief. Knight v. State, 923 So. 2d 387 (Fla. 2005).

On November 9, 2012, more than half a decade after the Supreme Court of 

Florida denied Muhammad postconviction relief, the district court granted 

Muhammad’s petition for a federal writ of habeas corpus on the ground that 

Muhammad’s right to confrontation had been violated at his resentencing hearing. 

The district court concluded that the procedural bar applied by the Supreme Court 

of Florida was “inadequate” because Muhammad’s general standing objection to 

Smith’s hearsay testimony preserved the more specific claims that he raised before 

the Supreme Court of Florida. The district court applied de novo review, instead 

of the deferential standard of the Antiterrorism and Effective Death Penalty Act, 28 

U.S.C. § 2254(d), because the Supreme Court of Florida had not reached the merits 

Case: 12-16243 Date Filed: 09/23/2013 Page: 11 of 44 
12

of Muhammad’s claim under the Confrontation Clause. The district court 

concluded that the right to confrontation applies at capital sentencing. Although 

the district court acknowledged that the Supreme Court had held in Williams v. 

New York, 337 U.S. 241, 69 S. Ct. 1079 (1949), that unsworn and out-of-court 

statements are admissible at capital sentencing proceedings, the district court 

concluded that we had held in Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 

1982), that Williams was abrogated and that the right to cross-examine adverse 

witnesses applies to capital sentencing. The district court ruled that Muhammad’s 

confrontation rights were violated because the State never established that the 

testimony of the helicopter pilot was reliable or that the helicopter pilot and Ojeda 

were unavailable to testify at the resentencing hearings. And the district court 

ruled that the error was not harmless. The district court granted Muhammad’s 

petition for a writ of habeas corpus and instructed Florida to either resentence 

Muhammad or commute his sentence to life imprisonment. 

The district court also concluded that the Supreme Court of Florida did not 

err when it decided that the application of the cold, calculated, and premeditated 

aggravator was not a violation of the Ex Post Facto Clause. The district court 

reasoned that it was bound by our decision in Francis v. Dugger, 908 F.2d 696 

(11th Cir. 1990), which held that a retrospective application of the factor did not 

violate the Ex Post Facto Clause. Florida appealed the grant of Muhammad’s 

Case: 12-16243 Date Filed: 09/23/2013 Page: 12 of 44 
13

petition, and Muhammad cross-appealed the denial of relief on the ground that the 

application of the cold, calculated, and premeditated factor violated the Ex Post 

Facto Clause.

II. STANDARD OF REVIEW

We review de novo the grant or denial of a writ of habeas corpus by a 

district court. Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1232 (11th Cir. 

2008); Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir. 2002). If a state court 

adjudicates a federal claim on the merits and denies relief on that claim, we cannot 

grant a petition for a writ of habeas corpus based on that claim unless the 

adjudication of that claim resulted in a decision that was “contrary to, or involved 

an unreasonable application of, clearly established Federal law, as determined by 

the Supreme Court of the United States” or “was based on an unreasonable 

determination of the facts.” 28 U.S.C. § 2254(d); see Harrington v. Richter, __ 

U.S. __, __, 131 S. Ct. 770, 785 (2011). But if a state court “did not reach the 

merits of [the petitioner’s] claim, federal habeas review is not subject to the 

deferential standard that applies under [section 2254(d)] to ‘any claim that was 

adjudicated on the merits in State court proceedings.’ Instead, the claim is 

reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769, 1784 (2009)

(citation omitted).

Case: 12-16243 Date Filed: 09/23/2013 Page: 13 of 44 
14

III. DISCUSSION

We divide our discussion in two parts. First, we discuss why the admission 

of Smith’s testimony did not violate Muhammad’s rights under the Confrontation 

Clause. Second, we discuss why the adjudication by the Supreme Court of Florida 

of Muhammad’s claim about the cold, calculated, and premeditated aggravating 

factor did not result in a decision that was contrary to or based on an unreasonable 

application of clearly established law.

A. The Admission of Smith’s Testimony Did Not Violate Muhammad’s Rights 

Under the Confrontation Clause.

We divide our discussion of Muhammad’s claim under the Confrontation 

Clause in two parts. First, we discuss why we do not decide whether the 

procedural bar of Florida was an adequate bar to relief. Second, we discuss why 

Muhammad’s rights under the Confrontation Clause were not violated because 

hearsay is admissible at capital sentencing and Muhammad had an opportunity to 

rebut the hearsay.

1. We Need Not Decide Whether the Procedural Bar of Florida Was Adequate.

Before we address the merits of the claim under the Confrontation Clause, 

we first explain why we do not address the argument of the Secretary that 

Muhammad procedurally defaulted that claim. The Supreme Court of Florida 

denied Muhammad’s claim under the Confrontation Clause on the ground that 

Muhammad failed to make a contemporaneous and specific objection to Smith’s 

Case: 12-16243 Date Filed: 09/23/2013 Page: 14 of 44 
15

testimony about prior statements of Ojeda and the pilots. When a state court 

dismisses a federal claim on a state procedural ground, we treat the claim as 

procedurally barred and dismiss it without reaching its merits, unless the 

procedural bar is not an “independent” and “adequate” bar to relief. See Walker v. 

Martin, __ U.S. __, __, 131 S. Ct. 1120, 1127 (2011).

The Secretary argues that the district court erred when it concluded that the 

procedural bar applied by the Supreme Court of Florida was inadequate. The 

district court held that Muhammad preserved his claim under the Confrontation 

Clause because he had a standing objection and “Florida law consistently 

recognizes that a standing objection preserves an issue for appeal.” The Secretary 

contends that the Supreme Court of Florida also has a firmly established and 

regularly followed rule that parties must make “contemporaneous” and “specific” 

objections to alleged errors at trial, see, e.g., Corona v. State, 64 So. 3d 1232, 1242 

(Fla. 2011); Overton v. State, 976 So. 2d 536, 547 (Fla. 2007), and that 

Muhammad did not make a specific and contemporaneous objection to Smith’s 

testimony about Ojeda and the pilots. The Secretary argues that Muhammad’s 

general objection, and the standing objection granted by the trial court, were 

insufficient to preserve the more specific objections he now raises on appeal. The 

Secretary relies on the decision of the Supreme Court of Florida in Silvia v. State, 

60 So. 3d 959 (Fla. 2011), where the defendant raised before the trial court a 

Case: 12-16243 Date Filed: 09/23/2013 Page: 15 of 44 
16

“general objection” to the admission of victim impact evidence and the trial judge 

granted the defendant a “standing objection” on the issue, but the Florida Supreme 

Court held that this general objection was inadequate to preserve an objection to 

the admission of a particular victim impact letter. Id. at 977–78.

We need not decide this messy procedural issue. The Supreme Court has 

explained that “[t]he ‘independent and adequate state ground’ doctrine is not 

technically jurisdictional when a federal court considers a state prisoner’s petition 

for habeas corpus pursuant to 28 U.S.C. § 2254,” Lambrix v. Singletary, 520 U.S. 

518, 522, 117 S. Ct. 1517, 1522 (1997), and that, although the procedural bar issue 

“ordinarily should be” decided first, it need not “invariably be resolved first,” id. at 

525, 117 S. Ct. at 1523. The Supreme Court has explained that, when it appears 

that another issue is more “easily resolvable against the habeas petitioner, whereas 

the procedural-bar issue involve[s] complicated issues of state law,” a federal court 

may avoid the procedural bar issue. Id. Because the procedural bar involves a 

complicated issue of state law and this petition is more easily resolvable against 

Muhammad on the merits, we assume without deciding that the procedural bar is 

inadequate.

2. The Resentencing Hearing Did Not Violate Muhammad’s Rights Under the 

Confrontation Clause.

Muhammad argues that his rights under the Confrontation Clause were 

violated at his sentencing hearing because he did not have an opportunity to crossCase: 12-16243 Date Filed: 09/23/2013 Page: 16 of 44 
17

examine Ojeda or the pilots and because the State did not establish that Ojeda and 

the airplane pilot were unavailable. The Secretary and Muhammad agree that the 

Supreme Court of Florida dismissed the claim under the Confrontation Clause on a 

procedural ground. “Because the [Florida] courts did not reach the merits of 

[Muhammad’s Confrontation Clause] claim, . . . the claim is reviewed de novo.” 

Cone, 556 U.S. at 472, 129 S. Ct. at 1784. 

The Supreme Court of the United States has held that hearsay testimony is 

admissible at capital sentencing hearings. Williams, 337 U.S. at 252, 69 S. Ct. at 

1085. In Williams, a state judge sentenced the defendant to death based in part on

information contained in a presentence investigation report that was presented to 

the judge outside the courtroom. Id. at 244, 69 S. Ct. at 1081. The judge described 

the contents of the report to the parties and neither party challenged the accuracy of 

the report, but the defendant did not have an opportunity to cross-examine either 

the author of the report or the persons who spoke about the defendant in the report. 

Id. at 244, 69 S. Ct. at 1081–82. The defendant challenged his death sentence as 

violative of due process because his “sentence of death was based upon 

information supplied by witnesses with whom the accused had not been confronted 

and as to whom he had no opportunity for cross-examination or rebuttal.” Id. at 

243, 69 S. Ct. at 1081 (quotation marks omitted). But the Supreme Court held that 

the Due Process Clause, U.S. Const. Amend XIV, § 1, does not provide defendants 

Case: 12-16243 Date Filed: 09/23/2013 Page: 17 of 44 
18

a right to confront the witnesses against them at sentencing. Id. at 251–52, 69 S. 

Ct. at 1085. And the Supreme Court expressly declined to “draw a constitutional 

distinction as to the procedure for obtaining information where the death sentence 

is imposed.” Id. at 251, 69 S. Ct. at 1085.

Although hearsay is admissible at capital sentencing proceedings, the 

Supreme Court has held that a court may not impose the death penalty “on the 

basis of confidential information which is not disclosed to the defendant or his 

counsel.” Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205 (1977) 

(plurality opinion). The defendant in Gardner was sentenced to death based in part 

on information contained in a presentence investigation report that was held in 

confidence by the judge and not disclosed to the defendant. Id. at 353, 97 S. Ct. at 

1202. In four separate opinions, the Supreme Court held that the defendant had a 

constitutional right to the disclosure of the information in the report. See id. at 

362, 97 S. Ct. at 1207 (finding a due process violation); id. at 364, 97 S. Ct. at 

1208 (White, J., concurring in the judgment) (finding an Eighth Amendment 

violation); id. (Blackmun, J., concurring in the judgment) (same); id. (Brennan, J.) 

(finding a due process violation). The Supreme Court has since adopted Justice 

White’s concurrence as the rule of Gardner and explained that the holding of 

Gardner is that “‘[a] procedure for selecting people for the death penalty which 

permits consideration of . . . secret information relevant to the character and record 

Case: 12-16243 Date Filed: 09/23/2013 Page: 18 of 44 
19

of the individual offender’ violates the Eighth Amendment’s requirement of 

‘reliability in the determination that death is the appropriate punishment.’” O’Dell 

v. Netherland, 521 U.S. 151, 162, 117 S. Ct. 1969, 1976 (1997) (quoting Gardner, 

430 U.S. at 364, 97 S. Ct. at 1207–08 (White, J., concurring in the judgment))

(emphasis deleted). Justice White explained in Gardner that the procedure in that 

case was inadequate because the defendant “had no opportunity to respond” to the 

confidential information admitted against him. Gardner, 430 U.S. at 364, 97 S. Ct. 

at 1207 (White, J., concurring in the judgment). The plurality similarly concluded 

that there was a violation of due process because the defendant was sentenced to 

death at least in part “on the basis of information which he had no opportunity to 

deny or explain.” Id. at 362, 97 S. Ct. at 1207 (plurality).

Williams and Gardner together stand for the proposition that a defendant 

does not have a right to confront hearsay declarants at a capital sentencing hearing, 

but that he does have a right to rebut information relevant to his character and 

record that is admitted against him at the sentencing hearing. Both Williams and 

Gardner are still good law. Although the law of capital sentencing has changed in 

some respects since Williams, “the Supreme Court of the United States has never 

questioned the precise holding of Williams v. New York.” Szabo v. Walls, 313 

F.3d 392, 398 (7th Cir. 2003). And the Supreme Court has repeated time and again 

that only it has the authority to overrule its prior decisions. See, e.g., Tenet v. Doe, 

Case: 12-16243 Date Filed: 09/23/2013 Page: 19 of 44 
20

544 U.S. 1, 10–11, 125 S. Ct. 1230, 1237 (2005) (explaining that if “precedent of 

[the Supreme] Court has direct application in a case, yet appears to rest on reasons 

rejected in some other line of decisions, the Court of Appeals should follow the 

case which directly controls, leaving to this Court the prerogative of overruling its 

own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 

U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989))); United States v. Hatter, 532 

U.S. 557, 567, 121 S. Ct. 1782, 1790 (2001) (explaining that “it is this Court’s 

prerogative alone to overrule one of its precedents” (quoting State Oil Co. v. Khan, 

522 U.S. 3, 20, 118 S. Ct. 275, 284 (1997))); Hohn v. United States, 524 U.S. 236, 

252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent 

until we see fit to reconsider them, regardless of whether subsequent cases have 

raised doubts about their continuing vitality.”); see also Evans v. Sec’y, Fla. Dep’t 

of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (explaining that we must heed 

Judge Hand’s admonition to resist the “exhilarating opportunity of anticipating” 

the overruling of a decision of the Supreme Court (quoting Spector Motor Serv. v. 

Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting))). Our conclusion 

that Williams is still good law and that hearsay is admissible at capital sentencing 

is also consistent with the decisions of our sister circuits. See United States v. 

Fields, 483 F.3d 313, 326 (5th Cir. 2007) (concluding, after a comprehensive 

review of the law, that “the Confrontation Clause does not operate to bar the 

Case: 12-16243 Date Filed: 09/23/2013 Page: 20 of 44 
21

admission of [hearsay] testimony relevant only to a capital sentencing authority’s 

selection decision”); Szabo, 313 F.3d at 398 (explaining that “the Supreme Court 

has held that the Confrontation Clause does not apply to capital sentencing,” and 

that the right to confrontation “applies through the finding of guilt, but not to 

sentencing, even when that sentence is the death penalty”); see also United States 

v. Barrett, 496 F.3d 1079, 1100 (10th Cir. 2007) (explaining that “[i]t is far from 

clear that the Confrontation Clause applies to a capital sentencing proceeding” 

(quoting United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003))); Higgs, 353 

F.3d at 324 (same).

Muhammad argues that, notwithstanding the decision of the Supreme Court 

in Williams, we held in Proffitt, 685 F.2d 1227, that the Confrontation Clause bars 

the admission of all hearsay at capital sentencing, but this argument fails because it 

confuses the holding of Proffitt with its dicta. In Proffitt, we recognized only a 

limited right to cross-examine the author of psychiatric reports admitted at capital

sentencing hearings. In that case, a state court judge sentenced the defendant to 

death based in part on a psychiatric report, but the author of the report did not 

testify at the capital sentencing hearing. Id. at 1250. We vacated the death 

sentence on the ground that the defendant had a constitutional right to crossexamine the author of the report. Id. at 1255. We acknowledged that the Supreme 

Court had held in Williams that the right to confrontation and cross-examination 

Case: 12-16243 Date Filed: 09/23/2013 Page: 21 of 44 
22

does not apply at capital sentencing, but we explained that “[t]he constitutional 

requirements governing capital sentencing . . . have undergone substantial 

evolution in the wake of Furman v. Georgia, [408 U.S. 238, 92 S. Ct. 2726 

(1972)].” Proffitt, 685 F.2d at 1252. We recognized as follows that, since 

Williams, the Supreme Court has made clear that death is different:

The Supreme Court . . . has imposed procedural, as well as 

substantive, limitations on capital sentence decisionmaking. The 

view, once prevalent, that the procedural requirements applicable to 

capital sentencing are no more rigorous than those governing 

noncapital sentencing decisions, see, e.g., Williams, 337 U.S. at 251–

52, 69 S. Ct. at 1085, is no longer valid.

Proffitt, 685 F.2d at 1253 (citation omitted). We looked for guidance to the 

decision of the Supreme Court in Gardner, which we understood to be “premised 

on the principle that death sentences may not constitutionally be imposed on the 

basis of information that the capital defendant has been afforded no opportunity to 

rebut.” Id. at 1253–54. We explained that cross-examination is necessary to test 

the accuracy of expert opinion testimony, id. at 1254, and we concluded that “the 

right to cross-examine adverse witnesses applies to capital sentencing proceedings, 

at least where necessary to ensure the reliability of the witnesses’ testimony,” id. at

1255.

Eight months after we issued our first opinion in Proffitt, but before we 

issued the mandate in that appeal, we expressly limited our holding to cases 

involving the admission of psychiatric reports. See Proffitt v. Wainwright, 706 

Case: 12-16243 Date Filed: 09/23/2013 Page: 22 of 44 
23

F.2d 311, 312 (11th Cir. 1983). We modified our opinion in Proffitt to add a 

footnote that our “decision that the right to cross-examination of adverse witnesses 

is extended to capital sentencing proceedings is necessarily limited to the facts of 

the case before us, involving psychiatric reports.” Id. We made clear what was 

implicit before: our decision could not establish a categorical bar of hearsay at 

capital sentencing, but held only that the district court had erred by admitting 

psychiatric reports.

Muhammad argues that some of our decisions have understood Proffitt to 

bar the admission of hearsay at capital sentencing hearings, but to the extent these 

decisions suggest as much, they do so only in dicta. In some cases, we suggested 

that the Confrontation Clause applies at capital sentencing, but we then denied

relief on the ground that any right under the Confrontation Clause was not violated. 

See Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1344 (11th Cir. 2007); 

Duren v. Hopper, 161 F.3d 655, 666 (11th Cir. 1998). In another case, we 

concluded that the defendant had a right to confrontation at his capital sentencing 

hearing, but we rejected his argument because any error was harmless. See Mason 

v. Allen, 605 F.3d 1114, 1124 (11th Cir. 2010). “[T]he holding of a case is, as the 

Supreme Court observed, comprised both of the result of the case and ‘those 

portions of the opinion necessary to that result by which we are bound.’” United 

States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (quoting Seminole 

Case: 12-16243 Date Filed: 09/23/2013 Page: 23 of 44 
24

Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S. Ct. 1114, 1129 (1996)). All that 

was “necessary to the result” in Hodges, Duren, and Mason was that any right to 

confrontation was not violated or that any violation was harmless. Because “[t]he 

holdings of a prior decision can reach only as far as the facts and circumstances 

frame the precise issue presented in that case,” Chavers v. Sec’y, Fla. Dep’t of 

Corr., 468 F.3d 1273, 1275 (11th Cir. 2006), any extraneous language in those 

cases about whether a right to confrontation bars the admission of hearsay in a 

capital sentencing hearing was dicta. Other decisions cited by Muhammad do not 

even involve collateral attacks to state capital sentencing hearings, so those 

decisions could not have held that a right to confrontation bars the admission of 

hearsay in a state capital sentencing. See United States v. Brown, 441 F.3d 1330, 

1361 n.12 (11th Cir. 2006) (avoiding the question whether the right to 

confrontation exists at federal capital sentencing because there was no violation of 

the right); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) 

(holding that there is no right to confrontation at non-capital sentencing); see also

Moore v. Zant, 885 F.2d 1497, 1511–12 (11th Cir. 1989) (en banc) (holding that a 

district court did not abuse its discretion when it concluded that the state prisoner’s 

failure to include a claim based on Proffitt in his first federal petition constituted an 

abuse of the writ).

Case: 12-16243 Date Filed: 09/23/2013 Page: 24 of 44 
25

We cleared up any confusion in our case law in Chandler v. Moore, 240 F.3d 

907, 918 (11th Cir. 2001), when we confirmed that hearsay is admissible at capital 

sentencing and that a defendant’s rights under the Confrontation Clause are not 

violated if the defendant has an opportunity to rebut the hearsay. In Chandler, a 

police officer summarized at the capital sentencing hearing the testimony of 

several witnesses at the guilt phase trial. Id. The defendant argued that the 

admission of this hearsay evidence violated his rights under the Confrontation 

Clause, but we rejected that argument. Id. We first explained that, although “[t]he 

Sixth Amendment guarantees a defendant an adequate opportunity to crossexamine adverse witnesses,” the defendant had an opportunity to cross-examine 

the witnesses at the original trial. Id. “Moreover,” we added, “there is no 

Confrontation Clause violation because we agree with the Seventh Circuit that 

hearsay evidence is admissible at a capital sentencing. Del Vecchio v. Ill. Dep’t of 

Corr., 31 F.3d 1363, 1387–88 (7th Cir. 1994). This proposition does contain one 

caveat: that the state statute protect a defendant’s rights by giving him/her the 

opportunity to rebut any hearsay information.” Chandler, 240 F.3d at 918. We 

explained that the hearsay evidence against Chandler was admitted under a Florida 

law that provides that hearsay evidence may be admissible at a capital sentencing, 

“regardless of its admissibility under the exclusionary rules of evidence, provided 

the defendant is accorded a fair opportunity to rebut any hearsay statements.” Id.

Case: 12-16243 Date Filed: 09/23/2013 Page: 25 of 44 
26

(quoting Fla. Stat. § 921.141(1)). Because the defendant had an opportunity “to 

rebut the hearsay,” we denied his claim under the Confrontation Clause. Id. Our 

citation of Del Vecchio establishes that we viewed Williams to still be good law 

because Del Vecchio expressly relied on Williams for the proposition that hearsay 

is admissible at capital sentencing. See Del Vecchio, 31 F.3d at 1387–88.

Muhammad’s rights under the Confrontation Clause were not violated 

because Muhammad had an opportunity to rebut the hearsay information. The 

hearsay was admissible at Muhammad’s capital sentencing hearings. Williams, 

337 U.S. at 252, 69 S. Ct. at 1085; Chandler, 240 F.3d at 918. And Muhammad 

had an “opportunity to respond” to the hearsay. See Gardner, 430 U.S. at 364, 97 

S. Ct. at 1207 (White, J., concurring in the judgment); see also id. at 362, 97 S. Ct. 

at 1207 (plurality); Chandler, 240 F.3d at 918. The hearsay testimony was not 

given in secret, but instead was presented by Smith in open court. Compare

Gardner, 430 U.S. at 353, 97 S. Ct. at 1202 (plurality). Muhammad crossexamined Smith at the sentencing hearing, and he had the opportunity to present 

his own witnesses too. Muhammad also had the opportunity to cross-examine both 

Ojeda and the airplane pilot at the guilt phase of his trial.

Although Muhammad did not have a prior opportunity to cross-examine the 

helicopter pilot, he had “the opportunity to rebut any hearsay information.” See

Chandler, 240 F.3d at 918. The Supreme Court “has never said that the right to 

Case: 12-16243 Date Filed: 09/23/2013 Page: 26 of 44 
27

‘deny or explain’ sentencing information includes the confrontation rights that 

Williams rejected.” Fields, 483 F.3d at 329 (quotation marks omitted). And we 

explained in Hodges that the right to rebut hearsay at capital sentencing does not 

include the right to cross-examine the hearsay declarant. Hodges, 506 F.3d at 

1344. In that case, we held that a defendant had a “fair opportunity to rebut any 

hearsay statements” at his capital sentencing even though the defendant did not 

have an opportunity to cross-examine the hearsay declarant herself. Id. (quotation 

marks omitted). Muhammad does not argue that he was denied access to the prior 

statements of the helicopter pilot, that he could not cross-examine Smith, or that he 

could not call his own witnesses. Because Muhammad had an opportunity to rebut 

the hearsay, his claim under the Confrontation Clause fails.

B. The Application of the Cold, Calculated, and Premeditated Aggravator Did Not 

Violate the Ex Post Facto Clause. 

Muhammad argues that the application of the “cold, calculated, and 

premeditated” statutory aggravating factor to his case violates the Ex Post Facto 

Clause, U.S. Const. Art. I, § 9, because that factor was not enacted until after he 

committed the murders, but that argument fails. Because the Florida Supreme 

Court adjudicated this claim on the merits, we may not grant Muhammad’s petition 

for a writ of habeas corpus with respect to this claim “unless the state court’s 

decision ‘was contrary to or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United States,’ 

Case: 12-16243 Date Filed: 09/23/2013 Page: 27 of 44 
28

[28 U.S.C.] § 2254(d)(1).” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1325 

(11th Cir. 2013) (en banc) (quoting Johnson v. Upton, 615 F.3d 1318, 1329 (11th 

Cir. 2010)). “A state court’s determination that a claim lacks merit precludes 

federal habeas relief so long as fairminded jurists could disagree on the correctness 

of the state court’s decision.” Richter, __ U.S. at __, 131 S. Ct. at 786 (quotation 

marks omitted). Muhammad must establish that the decision of the Supreme Court 

of Florida “was so lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for fairminded 

disagreement.” Id. at 786–87.

The Supreme Court of Florida dismissed Muhammad’s claim on the ground 

that it had already concluded, in Combs, 403 So. 2d 418, “that application of the 

[cold, calculated, and premeditated] aggravator in this situation is not an ex post 

facto violation.” Knight, 746 So. 2d at 434. The defendant in Combs, like 

Muhammad, was convicted of first-degree murder and sentenced to death. Combs, 

403 So. 2d at 419. The sentencing judge in Combs found that one aggravating 

factor for the murder was that the defendant had committed the murder in a cold, 

calculated, and premeditated manner. Id. at 421. The Supreme Court of Florida 

explained that the application of the factor did not violate the Ex Post Facto Clause 

because, although the factor was enacted after the defendant committed the 

murder, the factor did not disadvantage the defendant. Id. The court stated that the 

Case: 12-16243 Date Filed: 09/23/2013 Page: 28 of 44 
29

factor “reiterates in part what is already present in the elements of premeditated 

murder” and that the trial judge is already permitted to consider the elements of the 

offense at sentencing. Id. The court stated that application of the factor actually 

benefits the defendant because the factor limits the ways in which the trial judge 

may consider the elements of the charged offense. Id. The court explained that, 

with the addition of the new factor, the “premeditation” element of the offense can 

only be considered if “the premeditation [was] ‘cold, calculated and . . . without 

any pretense of moral or legal justification.’” Id. The court concluded that 

application of the new aggravating factor did not violate the Ex Post Facto Clause 

because the new factor “adds nothing new to the elements of the crimes for which 

petitioner stands convicted but rather adds limitations to those elements for use in 

aggravation, limitations which inure to the benefit of a defendant.” Id.

The decision of the Supreme Court of Florida in this appeal was not “so 

lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fairminded disagreement.” See Richter, 

__ U.S. at __, 131 S. Ct. at 786–87. A law violates the Ex Post Facto Clause if it 

(1) “appl[ies] to events occurring before its enactment” and (2) “disadvantage[s] 

the offender affected by it by altering the definition of criminal conduct or 

increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441, 117 

S. Ct. 891, 896 (1997) (quotation marks and citation omitted). Muhammad, like 

Case: 12-16243 Date Filed: 09/23/2013 Page: 29 of 44 
30

the defendant in Combs, was convicted of first-degree murder, so the sentencing 

judge was permitted to consider the statutory element that Muhammad acted in a 

premeditated fashion. As in Combs, any application of the statutory aggravating 

factor did not “disadvantage [Muhammad] by . . . altering the definition of criminal 

conduct or increasing the punishment for the crime.” Id. (quotation marks 

omitted). And we cannot say that the decision of the Supreme Court of Florida in 

Combs was unreasonable because Muhammad has not identified any decision of 

the Supreme Court that conflicts with Combs.

Moreover, in Francis, 908 F.2d at 705, we rejected a claim almost identical 

to the one Muhammad now raises on appeal. In that appeal, a defendant convicted 

of first-degree murder and sentenced to death in Florida argued that the application 

of the cold, calculated, and premeditated factor to his case violated the Ex Post 

Facto Clause, but we rejected that argument. Id. at 704–05. We explained that the 

facts on which the trial judge relied to apply the factor “were the same facts 

underlying application of other aggravating factors, such as ‘hindering law 

enforcement’ and ‘especially atrocious and cruel.’” Id. at 705 (quotation marks 

omitted). We explained that, because the Florida sentencing scheme does not 

require judges to merely tabulate the aggravating and mitigating factors, but 

instead to weigh the underlying facts, the application of the factor did not 

disadvantage the defendant because it was redundant with other factors that the 

Case: 12-16243 Date Filed: 09/23/2013 Page: 30 of 44 
31

trial judge found weigh against the defendant. Id. In this matter, as in Francis, the 

trial judge found that both the cold, calculated, premeditated aggravator, and the 

atrocious and cruel aggravator, applied to Muhammad’s case. Based on our 

decision in Francis, we cannot say that the decision of the Supreme Court of 

Florida was contrary to or involved an unreasonable application of clearly 

established Federal law, as determined by the Supreme Court.

IV. CONCLUSION

We REVERSE the judgment in favor of Muhammad and RENDER a 

judgment in favor of the Secretary.

Case: 12-16243 Date Filed: 09/23/2013 Page: 31 of 44 
32

WILSON, Circuit Judge, concurring in part and dissenting in part:

I concur with the majority’s opinion insofar as it holds that the application of 

the “cold, calculated, and premeditated” statutory aggravating factor in this case 

does not violate the ex post facto clause of the United States Constitution. U.S. 

Const. art. I, § 9. Relying upon clear precedent, the Florida Supreme Court 

determined that, although this aggravating factor was enacted after Muhammad 

committed the Gans murders, its application did not add anything new to the 

elements of the crimes for which he was convicted and did not disadvantage him. 

Knight v. State, 746 So. 2d 423, 434 (Fla. 1998) (holding that the application of the 

“cold, calculated, and premeditated” factor is not an ex post facto violation where 

defendant was already convicted of premeditated first degree murder); see Combs 

v. State, 403 So. 2d 418, 421 (Fla. 1981) (holding that the application of this 

aggravating factor did not violate the ex post facto clause because it “reiterates in 

part what is already present in the elements of premeditated murder”).

Indeed, the Florida Supreme Court’s decision in this case was neither 

contrary to nor an unreasonable application of clearly established Federal law. See 

28 U.S.C. § 2254(d)(1); Evans v. Sec’y, Dept. of Corr., 703 F.3d 1316, 1325 (11th 

Cir. 2013) (en banc). A law violates the ex post facto clause if it applies to events 

occurring prior to its enactment and disadvantages the offender by altering the 

definition of criminal conduct or increasing the punishment for the crime. Lynce v. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 32 of 44 
33

Mathis, 519 U.S. 433, 441 (1997); see Carmell v. Texas, 529 U.S. 513, 568 (2000). 

Specifically, this court previously rejected the claim that this aggravating factor 

violates the ex post facto clause where the facts that the trial judge relied upon in 

applying the factor were the same as those underlying other aggravating factors 

and thus did not disadvantage the defendant. Francis v. Dugger, 908 F.2d 696, 

705 (11th Cir. 1990) (holding that no ex post facto violation occurred because the 

application of the aggravating factor “cold, calculated, and premeditated” did not 

disadvantage the defendant). Where, as here, the application of the “cold, 

calculating, and premeditated” factor did not disadvantage Muhammad, I agree 

that the state’s decision is not contrary to or an unreasonable application of Federal 

law as established by the Supreme Court. 

Nevertheless, I have reservations about the majority’s finding that it need 

not determine whether Florida’s procedural bar was adequate, and its conclusion 

that Muhammad’s1996 resentencing hearing did not violate his rights under the 

Confrontation Clause of the Sixth Amendment.

A. Florida’s procedural bar on Muhammad’s Confrontation Clause claim 

was inadequate

First, with regard to Florida’s procedural bar, I respectfully disagree that it is 

too complex an issue to decide. A federal court reviewing petitions for habeas 

corpus will not review a claim rejected by a state court “if the decision of [the 

state] court rests on a state law ground that is independent of the federal question 

Case: 12-16243 Date Filed: 09/23/2013 Page: 33 of 44 
34

and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 

(1991); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011); Smith v. Dep’t of 

Corr., 572 F.3d 1327, 1336-37 (11th Cir. 2009). In order to qualify as an 

“adequate” procedural ground, the state rule must be “firmly established and 

regularly followed.” Walker v. Martin, _ U.S. _, 131 S. Ct. 1120, 1127 (2011). 

Also, in order to be “adequate,” the rule cannot have been applied by the state 

court in an inconsistent or manifestly unfair manner. See Upshaw v. Singletary, 70 

F.3d 576, 579 (11th Cir. 1995); Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir.), 

cert. denied, Alabama v. Hansbrough, 513 U.S. 914, 115 S. Ct. 291 (1994). 

In this case, the district court correctly found that the Florida Supreme 

Court’s decision to bar Muhammad’s Confrontation Clause argument did not rest 

on a “firmly established and regularly followed” Florida procedural rule, as 

required. Muhammad v. Tucker, 905 F. Supp. 2d 1281, 1293 (S. D. Fla. 2012) 

(citing Conner, 645 F.3d at 1288). It is evident that, at his resentencing hearing, 

Muhammad’s counsel specifically made a standing objection to the hearsay 

testimony proffered by Detective Smith grounded in the Confrontation Clause of 

the Sixth Amendment.

1

 Indeed, throughout Detective Smith’s testimony, 

 

1

Prior to Detective Smith’s testimony, Muhammad’s counsel stated: “My basic objection as to 

what the State intends to use this witness for which is to come in here and give some kind of 

summary of everything that happened which involves the witness based on his investigation, 

telling the jury what other people did, what other people said, either over the radio or in person, 

and the objection I raise is this violates the rights of—the confrontation rights of the defendant 

on the Sixth Amendment and Article 1616, whatever it is, of the Florida Constitution. I would 

Case: 12-16243 Date Filed: 09/23/2013 Page: 34 of 44 
35

Muhammad’s counsel continued to object, provoking the judge’s explicit 

acknowledgement that the testimony was hearsay and that Muhammad raised a 

Confrontation Clause argument.2 Nevertheless, the Florida Supreme Court barred 

this claim, finding that there had been no objection to testimony about out of court 

statements made by the airplane pilot or Detective Ojeda. Knight v. State, 746 So, 

2d 423, 429-30 (Fla. 1998). Given Florida courts routinely accept standing 

objections when the court is put on notice of the basis for the objection, this 

procedural bar is inadequate. Corona v. State, 64 So. 3d 1232, 1242 (Fla. 2011) 

(holding that a standing objection which informs the court of the perceived error is 

sufficient to preserve a Confrontation Clause argument on appeal); Floyd v. State, 

850 So. 2d 383, 393 n.20 (Fla. 2002) (recognizing petitioner’s continuing objection 

before the trial judge); Hopkins v. State, 632 So. 2d 1372, 1376 (Fla. 1994) 

(finding that the standing objection was preserved where the trial court was put on 

notice of the potential error by the pretrial hearing and defense counsel’s request 

for a continuing objection).

Further, the cases cited by the Secretary for the proposition that 

Muhammad’s objections were insufficient are distinguishable. For example, in 

 

like to have a standing objection.” Muhammad v. Tucker, 905 F. Supp. 2d 1281, 1293 (S. D. Fla. 

2012) (citing Transcript of Trial, App. FF, at 2352–53.)

2

“I don’t want to hear the same objection and be brought sidebar for the same objection. This is 

hearsay. It is hearsay. You made your confrontation rule argument. I have accepted your 

objection, your [sic] object to all of it.” Id. at 1294; see Principal and Response Brief of 

Appellee/Cross-Appellant, p. 23.

Case: 12-16243 Date Filed: 09/23/2013 Page: 35 of 44 
36

Ferguson v. Secretary for the Department of Corrections, this court noted that the 

trial record showed defense counsel requested an evidentiary hearing to permit the 

introduction of further mitigating evidence as opposed to making a due process 

objection. 580 F.3d 1183, 1213 (11th Cir. 2009). In fact, Ferguson’s counsel 

failed to object when the judge specifically asked whether there was any legal 

reason why it should not resentence him. Id. This court clarified that under the 

contemporaneous objection rule, “an issue is properly preserved if the trial court 

knows that an objection was made, clearly understands the nature of the objection, 

and denies that request.” Id. at 1212. In Corona v. State, 64 So. 3d 1232, 1242 

(Fla. 2011), the Florida Supreme Court concluded that the trial court was aware of 

the nature of the defendant’s objections regarding his daughter’s hearsay 

testimony, largely because it overruled similar objections in a pretrial conference. 

Thus, the Corona court concluded that because the defendant fairly apprised the 

court of the basis of his objections and the relief sought, he preserved his 

Confrontation Clause argument on appeal. Id. at 1243. Finally, the Secretary’s 

reliance on Silvia v. State, 60 So. 3d 959 (Fla. 2011), is unpersuasive. In Silvia, the 

defendant made a general objection to victim impact evidence and not to any 

particular statement in the letters that were read during the penalty phase of trial. 

Id. at 977–78. The Florida Supreme Court clarified that because defense counsel 

had not specifically objected or articulated the basis for any objections, the 

Case: 12-16243 Date Filed: 09/23/2013 Page: 36 of 44 
37

defendant must establish on appeal that a fundamental error or a violation of due 

process occurred. Id. at 97. Here, unlike in Silva, Muhammad’s counsel repeatedly 

objected to the introduction of testimony, both on the basis of hearsay and the 

Confrontation Clause. In fact, counsel’s objections were so clear and specific that 

the trial judge asked counsel to stop making them. See Tucker, 905 F. Supp. 2d at 

1294 (quoting the trial judge’s warning that it did “n[o]t want to hear the same 

objection [that] ... [t]his is hearsay [or] your confrontation rule argument”).

In addition to being unpersuasive, the Secretary’s argument that 

Muhammad’s objections lacked the specificity to be preserved does not reflect the 

Florida Supreme Court’s actual basis for finding the procedural bar. Instead of 

finding that Muhammad’s objections were insufficiently specific, the court 

precluded Muhammad’s Confrontation Clause argument on direct appeal because 

it found that he did not object to Smith’s testimony as to statements made by 

Detective Ojeda or the pilot at all. See Knight v. State, 746 So. 2d 423, 430 n.9 

(Fla. 1998). 

In sum, Florida courts have routinely considered issues upon which parties 

made a standing objection to be preserved for appeal, see, e.g. Floyd, 850 So. 2d at 

393 n.20, and the Secretary’s arguments for why Muhammad’s arguments should 

be procedurally barred are unavailing. Therefore, the district court correctly held 

that the Florida Supreme Court’s procedural bar under these circumstances was 

Case: 12-16243 Date Filed: 09/23/2013 Page: 37 of 44 
38

inadequate and appropriately considered Muhammad’s Confrontation Clause 

argument. 

B. The resentencing hearing violated Muhammad’s rights under the 

Confrontation Clause

While agreeing that the legal precedent on this issue is complicated, I 

ultimately agree with the district court that the Confrontation Clause of the Sixth 

Amendment applies in capital sentencing proceedings. 

The Supreme Court has held that trial courts may consider hearsay testimony 

at capital sentencing hearings. Williams v. New York, 337 U.S. 241, 250-51 (1949) 

(holding that courts may consider presentence investigative reports, which were 

described to the parties but not subject to cross-examination without violating due 

process); Williams v. Oklahoma, 358 U.S. 576, 584 (1959) (holding that courts 

may consider “unsworn or ‘out-of-court’ information relative to the circumstances 

of the crime and to the convicted person’s life and characteristics” at capital 

sentencing). Subsequently, the Supreme Court clarified that a court may not 

impose the death penalty on the basis of confidential information which is not 

disclosed to the defendant. Gardner v. Florida, 430 U.S. 349, 358, 362 (1977).

However, the Williams decisions precede the application of the Sixth 

Amendment to state criminal prosecutions through the Fourteenth Amendment. 

See Pointer v. Texas, 380 U.S. 400, 403 (1965) (holding that the right of an 

accused to confront witnesses against him is a fundamental right). Since then, the 

Case: 12-16243 Date Filed: 09/23/2013 Page: 38 of 44 
39

Supreme Court has expanded the application of the Confrontation Clause. See 

Davis v. Washington, 547 U.S. 813, 825–26, 829 (2006) (refusing to limit 

Confrontation Clause protections to formal testimonial statements); Crawford v. 

Washington, 541 U.S. 36, 51–52 (2004) (barring out-of-court statements to police 

investigators absent witness unavailability and prior opportunity by the defendant 

to cross-examine). Moreover, this court has explicitly held that “the right to crossexamine adverse witnesses applies to capital sentencing hearings.” Proffitt v. 

Wainwright, 685 F.2d 1227, 1254 (11th Cir. 1982). In Proffitt, we noted that 

“[b]ecause the death penalty ... is permanent and irrevocable, the procedures by 

which the decision to impose a capital sentence is made bring into play 

constitutional limitations not present in other sentencing decisions.” Id. at 1253. 

Proffitt specifically addressed the Supreme Court’s trend towards imposing more 

procedural requirements in capital cases in order to reduce the risk of arbitrary 

decision making. Id. For example, we noted that the Supreme Court’s more recent 

decision in Gardner, banning reliance on information not disclosed to the 

defendant or his attorney, was “premised on the principle that death sentences may 

not constitutionally be imposed on the basis of information that the capital 

defendant has been afforded no opportunity to rebut.” Id. at 1253-54 (citing 

Gardner, 430 U.S. at 362). Based upon this analysis of Supreme Court precedent, 

Case: 12-16243 Date Filed: 09/23/2013 Page: 39 of 44 
40

we concluded that “the right to cross-examine adverse witnesses applies to capital 

sentencing hearings.” Proffitt, 685 F.2d at 1254. 

The majority insists that this conclusion in Proffitt was merely dicta and that 

by limiting its holding, in a subsequent addendum to the opinion, to cases 

involving the admission of psychiatric reports, this court clarified that it did not 

create a categorical bar to hearsay at capital sentencing hearings.3 See Proffitt v. 

Wainwright, 706 F.2d 311, 312 (11th Cir. 1983). At oral argument, Muhammad’s 

counsel argued that the addendum to Proffitt could be read as simply saying that 

under these circumstances, where the sources and authors of a psychiatric report 

have not been cross-examined, use of the report in a sentencing violates the Sixth 

Amendment. The addendum’s use of the phrase “necessarily limited to the facts of 

the case before us,” id., suggests that the court merely pointed out that the case did 

not present an opportunity for a broader expansion of Confrontation Clause rights. 

Regardless of the addendum’s significance at the time, this court has 

routinely cited Proffitt as authority for the proposition that the Confrontation 

Clause applies at a capital sentencing. Perhaps most significantly, in Moore v. 

Zant, 885 F.2d 1497, 1512 (11th Cir. 1989) (en banc), this court announced that 

“[i]n light of [the Supreme Court’s trend toward expanding Sixth Amendment 

 

3

“Our decision that the right of cross-examination of adverse witnesses is extended to capital 

sentencing proceedings is necessarily limited to the facts of the case before us, involving 

psychiatric reports.” Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Cir. 1983). 

Case: 12-16243 Date Filed: 09/23/2013 Page: 40 of 44 
41

protections], reasonably competent counsel reasonably could have anticipated the 

extension of . . . the right of confrontation[] to capital sentencing proceedings.” Id. 

In other words, Zant held that the district court did not abuse its discretion in 

finding counsel’s failure to raise Confrontation Clause objections to a presentence 

investigation report in a capital sentencing hearing inexcusable. Remarkably, we 

affirmed a district court finding that counsel’s failure to raise the issue was 

inexcusable before Proffitt was even decided because reasonably competent 

counsel could have anticipated the extension of the Confrontation Clause to capital 

sentencing hearings. Id. at 1511–12. Now the majority asserts that such an 

extension was never made, despite Proffitt’s subsequent announcement. 

More recently, this court has continued to cite Proffitt for its general 

proposition without limiting it to the narrow facts presented in that case. For 

example, in United States v. Brown, 441 F.3d 1330, 1361 n.12 (11th Cir. 2006) 

(per curiam), the court noted that “death is different,” and cited Proffitt for the 

proposition that “the constitutional right to cross-examine witnesses applies to 

capital sentencing hearings.” Id. In United States v. Cantellano, 430 F.3d 1142, 

1146 (11th Cir. 2005), while refusing to extend Crawford to non-capital 

sentencing, this court again recognized that death is different, noting that “we have 

recognized a right to cross-examination in the context of capital sentencing.” Id. 

(citing Proffitt, 685 F.2d at 1254–55); see also United States v. Sanchez, 278 F. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 41 of 44 
42

App’x 927, 929 n*, (11th Cir. 2008) (distinguishing the sentencing at issue from a 

capital sentencing proceeding by noting that “Proffitt recognized a right to crossexamination in the context of capital sentencing”). Whatever the significance of 

Proffitt at the time, our subsequent treatment of Proffitt renders its broader 

proposition—that the right to cross-examine witnesses applies to capital sentencing 

hearings—binding law in this Circuit. 

To be clear, the Sixth Amendment right to confrontation is not as fulsome in 

a capital sentencing as during the guilt phase of a trial. For example, in 2001, this 

court rejected a Confrontation Clause claim in Chandler v. Moore, 240 F.3d 907, 

918 (11th Cir. 2001). In Chandler, the defendant had the opportunity during the 

guilt phase to cross-examine each of the State’s witnesses to whom the officer 

referred during the resentencing, and the State did not prevent him from rebutting 

the hearsay evidence of its witnesses. 240 F.3d at 918. Without citing Proffitt or 

the subsequent cases affirming the right to confrontation in a capital sentencing, 

this court explained that if it were to determine that hearsay evidence was per se

inadmissible in a capital sentencing, it would be announcing a new rule of law.4 

 

4

I am troubled by the majority’s argument that because Chandler cites Del Vecchio v. Ill. Dep’t 

of Corr., 31 F.3d 1363, 1387-88 (7th Cir. 1994), which relies upon Williams for the proposition 

that hearsay is admissible at a capital sentencing, the Circuit viewed Williams to be good law in 

2001. While no party contests that the Supreme Court’s decisions in the Williams cases have not 

been overturned, it is evident that the Supreme Court, along with our Circuit, has developed 

subsequent case law expanding Sixth Amendment protections in capital sentencing hearings. 

See, e.g. Davis v. Washington, 547 U.S. 813, 823-24 (2006); Crawford v. Washington, 541 U.S. 

36, 51-52 (2004); Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir. 1982). 

Case: 12-16243 Date Filed: 09/23/2013 Page: 42 of 44 
43

Id. At oral argument, Muhammad argued that Chandler can be read narrowly to 

show that, in that circumstance, the court identified indicia of reliability such that 

the testimony need not have been excluded. Second, the court characterized 

defendant’s failure to cross-examine witnesses during sentencing as a choice: 

“[t]he Sixth Amendment guarantees a defendant an adequate opportunity to crossexamine adverse witnesses. Chandler had this opportunity and capitalized on it 

during trial but chose not to during his re-sentencing phase.” Id. (citation omitted) 

(emphasis added). Indeed, Chandler recognized that “the state [must] protect a 

defendant’s rights by giving him/her the opportunity to rebut any hearsay 

information.” Id. By contrast, in the present case, Muhammad did not have the 

choice of whether or not to cross-examine witnesses during his resentencing, and 

Detective Smith’s testimony included hearsay statements that were not included at 

trial.5 Accordingly, Muhammad did not have the meaningful opportunity to rebut 

contemplated in Chandler.

The majority maintains that Muhammad had the opportunity to crossexamine Detective Ojeda and the airplane pilot during the guilt phase of his trial, to 

cross-examine Detective Smith during the resentencing, and to present his own 

witnesses. Accordingly, the majority is satisfied that Muhammad had an 

opportunity to rebut the hearsay evidence that is consistent with the legal 

 

5

Further, it appears that the State did not even attempt to show the unavailability of the 

witnesses at issue in Muhammad’s 1996 resentencing. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 43 of 44 
44

precedent. Upon review, however, I am inclined to agree with the district court 

that Proffitt is good law which this court has repeatedly cited to acknowledge the 

applicability of the Confrontation Clause to capital sentencing proceedings. 

Proffitt has been understood by this court to extend Confrontation Clause 

protections to capital sentencing in cases decided before and after Chandler. 

Because I conclude that the Confrontation Clause of the Sixth Amendment applied 

to Muhammad’s capital resentencing proceeding, I respectfully dissent. 

Case: 12-16243 Date Filed: 09/23/2013 Page: 44 of 44