Citations:

Marek v. State, 492 So.2d 1055 (Fla. 1986) (DirectAppeal).
Marek v. Dugger, 547 So.2d 109 (Fla. 1989) (State Habeas).
Marek v. Singletary, 62 F.3d 1295 (11th Cir. 1995) (Federal HabeasPCR).

Final / Special Meal:

A BLT sandwich, berries with whipped cream, french fries, onion rings, Dr Pepper.

Final Words:

"Jesus, remember the sinners."

Florida Department of Corrections

DC Number: #094417
Name: John Richard Marek
Race: WHITE
Sex: MALE
Hair Color: BROWN
Eye Color: BROWN
Height: 6' 00"
Weight: 225 lbs.
Birth Date: 09-17-61
Current Release Date: DEATH SENTENCE

Sentenced as follows: Count I: First-Degree Murder – Death Count II: Kidnapping – 30 years to be served consecutively to Count I. Count III: Lesser Included Offense of Criminal Attempt: Burglary with an Assault – 9 years to be served consecutively to Count I and concurrently with Count II. Count IV: Lesser Included Offense of Battery – Sentence suspended by the Court. Count V: Lesser Included Offense of Battery – Sentence suspended by the Court.

John Richard Marek

Seventeenth Judicial Circuit, Broward County, Case# 83-7088
Sentencing Judge:  The Honorable Stanton S. Kaplan
Attorney, Trial:  Robert Carney – Private
Attorney, Direct Appeal:  Bruce H. Little – Private
Attorney, Collateral Appeals:  Martin J. McClain – Registry

Date of Offense:  06/16/83

Date of Sentence:  07/03/84

Circumstances of the Offense:

Around 11 p.m. on 06/16/83, two women were returning home from a vacation via the Florida Turnpike when their car broke down.  John Marek and Raymond Wigley stopped and attempted to fix the two womens’ car.  

When Marek and Wigley were unable to fix the car, Marek persuaded one of the women, Adella Marie Simmons, to ride with the two men to a service station.

Marek and Wigley took the 47-year-old victim to a desolate beach approximately 60 miles from the car.  The two men dragged Simmons to the observation room of a lifeguard stand.  

In the observation room, Simmons’ shorts were removed, and her pubic hairs and one finger were burned.  Wigley testified that the victim was forced to perform oral sex and was sexually assaulted repeatedly.  Simmons was then strangled with a bandana at approximately 3:00 to 3:30 a.m.

At approximately 3:30 a.m. on 06/17/83, an officer observed a truck parked approximately 100 yards from the lifeguard tower.  The officer spoke with both Wigley and Marek before releasing them. Around 7:00 a.m., a lifeguard found the victim’s body.

At 11:30 that night, both Wigley and Marek were arrested because the truck they were driving was stolen.  When the truck was searched, the Simmons’ jewelry and a gun were found.  The arrest led to both Wigley and Marek being arrested for the murder of Simmons.

Fingerprints found at the lifeguard tower matched both Wigley and Marek.  Only Marek’s prints were found inside the observation deck, where the Simmons’ body was found.

*****

Codefendant Information:

Count I: First-Degree Murder – Life with 25 years mandatory
Count II: Kidnapping – 12 years to run consecutive with Count I
Count III: Burglary – 5 years to run consecutive to concurrent to Count I and II         
Count IV: Sexual Battery – 90 years to run consecutive to concurrent to Count II and III 

All of these sentences are to run consecutive to the six months that Wigley was serving for contempt of court.

Florida executes man condemned for woman's 1983 murder

By Stephanie Hayes - St. Petersburg Times

August 20, 2009

STARKE — John Richard Marek lay on a table, his arms strapped down with brown leather belts, a white sheet covering his body. He hadn't taken a sedative, but he looked sedate. He had spent the day preparing for this moment — the last of his life.

At 11 a.m. Wednesday, he ate a big meal at the Florida State Prison —a BLT sandwich, berries with whipped cream, french fries, onion rings, Dr Pepper. He met with an Episcopal priest. He spent three hours with his girlfriend, a pen pal who lives in Germany. She was the only visitor he'd had in three years. People who saw him said he was calm.

Adela Simmons would have been 71 now. She would have seen her two daughters graduate from college and get married. She would have welcomed five granddaughters. She could have earned the master's degree she wanted. But there was no chance for that.

On June 17, 1983, Simmons was driving back to her home in Miami from a Clearwater vacation. She was with a friend, Jean Trach. Their car kept stalling on the Florida Turnpike in Palm Beach County.

Marek and a friend, Raymond Wigley, stopped to give them a ride. Simmons, an adventurous, brave woman who once drove alone for eight weeks across the country for a vacation, went with them. Trach stayed behind.

Instead of taking her to a gas station for help, the two men drove 60 miles to Dania, where they raped, tortured and strangled her with a bandana. Her body was found in a beach lifeguard shack.

Simmons was a petite, dark-haired beauty born in Yugoslavia. She left the country after World War II with her family and settled in Venezuela, and she moved to South Florida after getting married. She became a widow at age 37. She raised two daughters, Aileen Simmons Bantau and Vivienne Yao, on her own. She earned a bachelor's degree. She loved working on cars, taking photographs, going to the beach, dancing. She loved traveling. She had been to Europe, Mexico, the Caribbean.

"My mother was vivacious, adventurous and full of life," said her daughter Aileen Simmons Bantau, who didn't attend the execution. "That's how I remember her. I feel like I have relived the event all over again and have been grieving her loss once again. I still feel incredibly sad that my sister and I lost our mother when and how we did."

She didn't feel vengeful. Just justified. "I have absolutely no feelings about John Richard Marek," she said.

Marek, 47, appealed his sentence to the last minute. His defense attorney had argued that it wasn't Marek, but Raymond Wigley, who did the killing. He claimed Wigley told other inmates about it. But Wigley couldn't help him. He had been murdered in prison in 2000 while serving a life sentence for the crimes. His killer also was executed.

Andrei Trach, son of Simmons' friend Jean Trach, attended the execution with his sister, Tanya Trach, and Bantau's husband, Alan Bantau. The waiting had gone on long enough, they said. "That animal was afforded the time to say goodbye to the ones he loved and make peace with his maker," he said. "Ms. Adela Simmons, the victim, was afforded no such luxury."

At 6:20 p.m., Marek mumbled his last words, nose in the air. "Jesus, remember the sinners."

He mouthed the Lord's prayer to himself as chemicals started coursing through his veins. His mouth went slack. His face went pale. He was dead in 13 minutes.

Florida Gov. Crist silent, solemn as Marek executed

By Breddan Farrington - St. Petersburg Times

August 19, 2009

TALLAHASSEE, Fla. (AP) -- Gov. Charlie Crist silently held two framed photos of Adela Marie Simmons as a voice came over his speaker phone Wednesday evening, telling him the next in a series of eight syringes was being injected into the arm of the man who killed her.

Crist's office was silent except the whir of the air conditioner as his chief of staff and three members of his legal team sat and listened with him for each update in the execution of John Richard Marek. After the last syringe was injected, the voice said, "Team leaders have a flatline" and a few seconds later, "The doctor has confirmed he is deceased. Time of death 6:33."

"Thank you, warden," Crist said before hanging up the phone and sitting silently for a few moments at his desk, where he had several photos of Simmons. "She was a beautiful lady."

Carrying out an execution is one of the most serious responsibilities a governor has, and Crist allowed The Associated Press to observe him during the last 48 minutes of Marek's life.

At 5:45, 15 minutes before the execution was set to begin, Crist sat at his desk, a stone statue of Jesus with arms outstretched facing him as he reviewed a binder containing the execution procedures. Across the room, Andrew Atkinson was on the phone with Attorney General Bill McCollum and through an open door to an adjacent office Rick Figlio was on the phone with the Supreme Court. Chief of staff Eric Eikenberg sat nearby.

Crist's top lawyer, Rob Wheeler, arrived and told Crist that McCollum's office was sending faxes confirming Marek's three final appeals had been denied. After Crist reviewed them, Wheeler contacted Florida State Prison, where one visiting warden carried out the sentence and another gave Crist every detail. "The governor has received the denials and has asked you to proceed," Wheeler said.

Crist and his team maintained serious expressions and said nothing as Warden Barry Reddish described each step. "The cell door is now being opened," Reddish said. "The inmate has been placed on the gurney."

At 5:54, Reddish said, "The inmate has remained calm through the entire process." He then described restraints being placed on Marek and tourniquets on his arms. "The inmate continues to remain calm. He has not offered any physical resistance to the team."

Crist heard that an EKG had been placed on Marek and was working. "Thank you," he said. At 6:01 p.m., he was told IVs were being inserted into Marek's arms. As the procedure continued, Crist briefly got up, walked to a window and stared at the courtyard outside where additional security had been placed for the execution. He sat back down seconds later.

The updates continued: - 6:05, "The needle has been inserted into the inmate's left arm." - 6:06, "The inmate continues to remain calm." - 6:09, "The needle has now been inserted in the inmate's right arm." - 6:11, "The sheet that covers the inmate is now being placed over him."

At that point Crist picked up photos of Simmons, who was kidnapped and raped after her car broke down on the side of a highway in 1983. He still said nothing as Reddish told him Marek planned to have a one-line statement before the execution. "Something to the effect of 'Jesus remember us,' or something similar to that."

At 6:19, the medical team signed the final paperwork that the lethal injections could begin. Crist asked if McCollum was reporting any last minute stays. Atkinson told him no. "Is there anything from the Supreme Court?" Crist asked. Again, the answer was no.

"You may carry out the sentence," Crist said.

At 6:21, Reddish said Marek mumbled something, but he couldn't hear what. The injections began. Crist was updated at the start and finish of all eight. Atkinson relayed the details to McCollum. One minute later Reddish said Marek appeared unconscious. At 6:24, three injections were complete and doctors checked to make sure Marek was unconscious. Twelve minutes later, the execution was over.

"This is a difficult thing to do. It's a very solemn, serious act," Crist said in a soft voice when he finally rose from his chair. "Somebody was just put to death, but what goes through my mind is what the victim had to go through and this is a horrific, heinous crime and justice must be done. And now it has been."

John Richard Marek executed for 1983 Broward murder

The Miami Herald

August 20, 2009

STARKE -- John Richard Marek was executed Wednesday for murdering a 45-year-old mother of two whose raped, tortured and strangled body was dumped in Dania Beach after her car broke down on Florida's Turnpike 26 years ago.

Marek, 47, died at 6:33 p.m. after receiving a lethal injection at the Florida State Prison.

He was condemned for the first-degree murder and kidnapping of Adela Marie Simmons, whose nude body was found the day after she climbed into a pickup truck to get help after a friend's car broke down on the turnpike in Palm Beach County in 1983.

Marek made a last statement before he died, but it was inaudible to members of the news media and witnesses, who included Simmons' son-in-law.

Marek's appeals were turned down by the U.S. and Florida supreme courts on Wednesday. He had claimed that the other man in the truck, Raymond Wigley, killed Simmons. Martin McClain, Marek's attorney, tracked down inmates who said Wigley told them he was the killer. Wigley, who had received a life sentence, was murdered in prison in 2000.

Simmons and her friend Jean Trach were returning to Miami from a vacation in Clearwater on June 16, 1983, when Trach's car began stalling. As the Barry University co-workers neared Jupiter on the turnpike, the car wouldn't restart.

Marek and Wigley stopped their pickup truck and offered to take one of them to the next toll booth to call for help. Simmons volunteered over Trach's warnings.

A police officer stopped Marek and Wigley about 3:30 a.m. as they walked away from a Dania Beach lifeguard stand. They got into a pickup truck -- later determined to be stolen -- and drove away. Simmons' body was found inside the lifeguard tower about 7 a.m.

That evening, Wigley was arrested in Daytona Beacha driving the truck. Inside was a gold watch, a gold pendant and gold earring belonging to Simmons, and a gun. Marek was arrested in Daytona Shores.

Marek testified that after they picked up Simmons, he fell asleep. When he awoke, he said the woman was not in the truck. He testified Wigley told him he had dropped her off at a gas station. He said he again fell asleep and that when he woke, he was on the beach. Fingerprints found at the lifeguard station matched both Wigley and Marek, but only Marek's prints were found inside the observation deck, where the body was found.

Wigley testified that the victim was forced to perform oral sex and was repeatedly sexually assaulted.

Marek had a three-hour visit Wednesday from his girlfriend, Marion Dollinger from Eppelheim, Germany, said Gretl Plessinger, a Department of Correction spokeswoman. She said he was calm and quiet in the hours before his death. Marek met with an Episcopalian minister in the afternoon. He ordered a last meal of a bacon, lettuce and tomato sandwich with mayonnaise and wheat bread, onion rings, french fries, blueberries and strawberries and whipped cream, and a Dr Pepper.

About 20 death penalty opponents gathered in a field outside the prison to protest the execution. "People think that because we protest the death penalty we're in favor of what people did,'' said Martha Lushman, 47, of Palm Bay. ``No, we don't agree with what they did. They did wrong. But we don't believe -- I don't believe -- it's our decision to terminate their life.''

Marek's was the 68th Florida execution since the death penalty was reinstated in 1979, the 24th by injection and the second this year.

"It's a question of justice. The death penalty doesn't serve any use in our modern society. It should be abolished, at least in favor of life [in prison] without parole,'' said Joseph Koechler, 66, from Ormond Beach.

John Richard Marek, executed for murder, rape, and torture

By Charisse Van Horn - Tampa Crime Examiner

August 19, 2009

The State of Florida executed John Richard Marek today at 6:33 p.m. ET by lethal injection. Marek was 47 years old and had spent 26 years in prison for the rape, torture, and strangulation death of Adela Marie Simmons.

Traveling with her friend on June 16, 1983, Adela Simmons and Jean Trach had been on vacationing in Clearwater, Florida and were on their way home to Miami. The car they were driving began to have difficulty and the car stalled at approximately 11:00 p.m.. It was then that two men in a pickup truck offered them help. They offered to take one of the women to a tollbooth, where she would be allowed to call for help. Jean Trach warned Adela not to take the ride, but she took it anyway. “I told them I absolutely wasn't going with them. But Adela the whole time was saying we couldn't just stay out there. She told me: 'You have to trust someone sometime.' States a report from the Palm Beach Post. Adela never realized that ride would end her life. Her dead body was found nude the next day.

The two men, John Richard Marek and Raymond Wigley, had been spotted by a police officer and stopped as they left a lifeguard stand in Dania Beach, at 3:30 in the morning. Four hours later, the body of Adela Simmons was discovered deceased inside that stand. The truck the men were driving had been stolen. Later that evening, Wigley was apprehended while driving the truck. Marek was captured later at Daytona Shores. Jewelry belonging to Adela Simmons was discovered inside the stolen vehicle. Though there was a gun in the vehicle, it was determined that Simmons was strangled to death.

Marek maintained his claim that it was Wigley who killed Simmons for the past 26 years. Though an attorney for John Marek had found inmates who claimed that Wigley had told them he was the murderer, John Marek’s appeals were denied. Raymond Wigley died in prison while serving a life sentence in 2000; he was murdered.

During testimony, John Richard Marek and Raymond Wigley revealed some of the last moments of Adela Simmons’ life, while Marek continued to claim that it was Wigley who committed the murder. He stated that after they picked up Simmons, they drove and that he fell asleep. When he awoke, Simmons was not in the vehicle and that Wigley stated he had dropped her off at a gas station. Marek then stated in his testimony that he fell asleep again, and when he woke, he was at the beach with Wigley.

Wigley testified that Adela Simmons was forced to perform oral sex on the men and had been repeatedly sexually assaulted. He also stated that at the beach, both men had dragged her into the observation area of a lifeguard stand, her shorts were taken off and that the men burned her pubic hairs and one of her fingers. Wigley stated that she was strangled to death with a bandana between the hours of 3:00 and 3:30 p.m. It was at 3:30, that both men were questioned by a police officer, (see part 1) who observed the stolen vehicle the men were driving approximately 100 yards from the lifeguard stand. Adela Simmons body was discovered at 7:00 a.m., on June 17, 1983 in the Lifeguard area, bruised, nude, strangled, and burned.

Adela Simmons left behind two daughters, Vivenne Yao and Aileen Simons Bantau; both daughters chose not to extend John Marek’s execution, however, Adela Simmons’ son-in-law, whom she never had the opportunity to meet, Alan chose to attend. After the execution he spoke. He stated, “It's painful for me to think about how she spent her last evening alive, how she suffered at the hands of John Richard Marek and Raymond Wigley. Nothing prepares you for losing someone you love in such a horrible manner.”

In addition to Simmons’ son-in-law, Jean Trach’s son and daughter attended the execution in her place. Jean’s son, Andrei also spoke after the execution. He stated, “I have no pity for the animal that was executed this evening. He got off easy. He's with his maker and his maker's wrath. I pray God shows no pity on his soul.”

Martin McClain, John Marek’s attorney of 21 years, who repeatedly filed appeals for his client, however, did not attend the execution.

ProDeathPenalty.com

This tragic incident began on June 16, 1983, when Adella Simmons and her Barry University co-worker were returning home from a vacation. Adella's companion, Jean Trach, testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, John Richard Marek, who was driving a pickup truck, pulled over. His companion, Raymond Wigley, stood in the darkness while Marek was talkative and friendly and unsuccessfully attempted to fix the car. He then offered to take one of the women, but not both, to a service station.

At approximately 11:30 p.m. Adella left with Marek and Wigley. Jean Trach was suspicious of the men. "I had a very bad feeling. I didn't like this man," she said of Marek. "But I was terrified of the other man (Wigley) because he never moved." The men offered to take one of them to the next toll booth, so they could call for help. Trach didn't want to go with them and argued that Simmons shouldn't either. "She said, 'You've got to be able to trust somebody, sometime,"' Trach said. "She got in and they drove away. That was the last time I saw her alive. In retrospect, she saved my life. There were guns in the truck," she said.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that Marek was the more dominant of the two; that Marek joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that Marek drove the truck away from the beach when the conversation was completed.

Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, Adella had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in Adella's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that Adella had been kicked with a great deal of force. According to the examiner, some of Adella's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower. Police issued a "be-on-the-lookout" bulletin to law enforcement agencies for Marek and Wigley.

On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took Marek into custody. Adella's jewelry, including a gold watch, gold pendant and gold earring, was later found in the truck. A fingerprint expert testified that six prints lifted from the lifeguard shack matched Marek's fingerprints, and one matched Wigley's. Only Marek's print was found inside the observation deck, where the body was discovered.

Marek testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix Adella's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after Adella got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see Adella's body. Marek admitted that after he had been incarcerated and a detective told him he had "made it to the big time," he responded: "S.O.B. must have told all."

Wigley testified that the victim was forced to perform oral sex and was sexually assaulted repeatedly. Simmons was then strangled with a bandana. Wigley was sentenced to life in prison and was killed in prison in 2000. Marek "deserves anything the country wants to give him," said Adella Simmons' friend, Jean Trach, who was with her that night. "She had no choice. She died a horrible death. They burned her, raped her, beat her up and strangled her."

Marek v. State, 492 So.2d 1055 (Fla. 1986) (Direct Appeal).

Defendant was convicted in the Circuit Court, Broward County, Stanton S. Kaplan, J., of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, and he was sentenced to death. On appeal, the Supreme Court held that: (1) testimony regarding gun found in codefendant's glove compartment, though irrelevant, did not prejudice defendant; (2) evidence was sufficient to establish premeditation; (3) disparate sentencing accorded defendant and codefendant, latter of whom received sentence of life in prison, was warranted by defendant's dominant role in the criminal episode; and (4) death sentence was proportionately correct. Affirmed.

PER CURIAM.

The appellant, John Marek, appeals his convictions of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, and his death sentence imposed by the trial judge in accordance with the jury's sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm all of appellant's convictions and his sentence of death.

This tragic incident began on June 16, 1983, when the victim and her female companion were returning home from a vacation. The victim's companion testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, appellant, who was driving a pickup truck, pulled over; that appellant was talkative and friendly; that he unsuccessfully attempted to fix the car and then offered to take one of the women, but not both, to a service station; that at approximately 11:30 p.m. the victim left with appellant and Raymond Wigley, who was an occupant of the pickup truck; that Wigley had been present during a part of appellant's conversation with the two women but remained silent; and that, during the five days she and the victim were together on their vacation, the victim did not have sexual intercourse.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that appellant was the more dominant of the two; that appellant joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that appellant drove the truck away from the beach when the conversation was completed. Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, the victim had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in the victim's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that the victim had been kicked with a great deal of force. According to the examiner, some of the victim's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower.

Police issued a “be-on-the-lookout” bulletin to law enforcement agencies for appellant and Wigley. On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took appellant into custody. The victim's jewelry was later found in the truck.

A fingerprint expert testified that six prints lifted from the lifeguard shack matched appellant's fingerprints, and one matched Wigley's. Only appellant's print was found inside the observation deck, where the body was discovered.

The appellant testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix the victim's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after the victim got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see the victim's body. Appellant admitted that after he had been incarcerated and a detective told him he had “made it to the big time,” he responded: “S.O.B. must have told all.”

The jury convicted appellant of first-degree murder, kidnapping with the intent to commit a sexual battery, attempted burglary, and two counts of battery. Consistent with the 10-2 jury recommendation, the trial judge imposed the death sentence. He found no mitigating circumstances and found the following four aggravating circumstances: (1) appellant was contemporaneously convicted of kidnapping, a felony involving the use or threat of violence; (2) appellant committed the murder while engaged in the commission of attempted burglary with intent to commit sexual battery and in the course thereof committed an assault; (3) appellant committed the murder for pecuniary gain; and (4) the murder was heinous, atrocious, and cruel. In a separate trial completed prior to Marek's trial, a jury convicted Wigley of first-degree murder, kidnapping, burglary, and sexual battery, and recommended the imposition of a life sentence for the murder. The trial judge sentenced Wigley to life in prison in accordance with the jury's recommendation.

Guilt Phase

Appellant challenges his convictions on three grounds. He first contends that his convictions should be vacated on the ground that the trial judge erred in refusing to grant appellant's motion for a mistrial raised when the policeman who arrested Wigley on Daytona Beach testified that he found a gun in the truck's glove compartment. Although the trial judge sustained defense counsel's objection as to relevance, he denied appellant's motion for mistrial, and instead instructed the jury as follows:

[T]here was indication by the witness that he found some type of a gun or firearm in this car and after discussion with counsel there is no evidence that I can see that would make that item relevant to this case, so at this point I would like you to do the best you can to forget it. In fact, I'll instruct you to forget that there was a firearm in that particular vehicle. It has no bearing on this case at this point and just disregard it.

Appellant argues that this instruction was insufficient on the ground that no nexus existed between appellant and the firearm. We find that the evidence of the gun's discovery was not prejudicial to appellant under the circumstances of this case. Further, a motion for mistrial is directed to the sound discretion of the trial court and should be granted only when it is necessary to ensure that the defendant receives a fair trial. See Ferguson v. State, 417 So.2d 639 (Fla.1982); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). We find the trial court correctly denied the motion for mistrial and conclude that, in any event, the curative instruction given in this case was sufficient to dissipate any prejudicial effects of this testimony. See Jennings v. State, 453 So.2d 1109 (Fla.1984); Rivers v. State, 226 So.2d 337 (Fla.1969).

Appellant next argues that the trial judge erred in denying appellant's motion for judgment of acquittal founded on an asserted lack of evidence of premeditation or evidence to indicate that the killing took place during the commission of a felony. We find the record of appellant's trial is replete with evidence which justifies the conclusion that appellant committed premeditated murder.

In his third point, appellant contends that he was denied his right to a fair and impartial jury because the jury viewed a film entitled, “You, the Juror,” which, according to appellant, contained misstatements of law, introduced legal points when appellant's counsel was not present, and portrayed the criminal defendant in the film as a “seedy-looking” individual. We find the trial judge correctly denied the motion to disqualify the entire jury panel, and conclude that the general orientation film in question did not prejudice appellant.

Sentencing Phase

Appellant challenges his death sentence on four grounds. Appellant first contends that the trial judge erred in sentencing him to death in view of the fact that the judge had previously sentenced Wigley to life in prison for the same offense. This disparate sentencing, according to appellant, should be prohibited as cruel and unusual, arbitrary, and unequal. We reject this argument. In prior cases we have approved the imposition of the death sentence when the circumstances indicate that the defendant was the dominating force behind the homicide, even though the defendant's accomplice received a life sentence for participation in the same crime. See Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). The evidence in this case clearly established that appellant, not Wigley, was the dominant actor in this criminal episode. Both appellant and the victim's traveling companion testified that appellant talked to the two women for approximately forty-five minutes after he stopped, purportedly to aid them. During most of this conversation, Wigley remained in the truck. When Wigley got out of the truck to join appellant, he remained silent. Appellant, not Wigley, persuaded the victim to get in the truck with the two men. That evidence was reinforced by the testimony of three witnesses who came into contact with the appellant and Wigley on the beach at approximately the time of the murder, which indicated that appellant appeared to be the more dominant of the two men. Finally, only appellant's fingerprint was found inside the observation deck where the body was discovered. This evidence, in our view, justifies a conclusion that appellant was the dominant participant in this crime.

Appellant next challenges all four aggravating circumstances on which the trial judge based the death sentence. We find that none of appellant's challenges to the aggravating factors have merit. We also reject appellant's argument that because his conviction was predicated largely on circumstantial evidence, the nature of the evidence should be considered as a mitigating factor. See Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

Appellant next contends the jury should have been instructed that Wigley had received a life sentence recommendation in his trial, thereby eliminating the need for appellant to present this evidence to the jury which would allow the state an opportunity to present rebuttal evidence. We find this contention to be without merit. We previously discussed in this opinion disparate sentences for codefendants. Distinguishing the conduct of codefendants to justify different sentences is an appropriate issue in the penalty phase that is properly addressed through the development of evidentiary facts.

We reject appellant's argument that death by electrocution constitutes cruel and unusual punishment. See Medina v. State, 466 So.2d 1046 (Fla.1985); Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). In conclusion, we have reviewed appellant's sentence in light of sentences imposed in similar cases and have determined that his death sentence is proportionately correct. See, e.g., Bertolotti v. State, 476 So.2d 130 (Fla.1985); Gore v. State, 475 So.2d 1205 (Fla.1985); Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied, 104 S.Ct. 3559, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984).

For the reasons expressed, we affirm the appellant's convictions and sentences, including the imposition of the death sentence.

It is so ordered. BOYD, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

Marek v. Dugger, 547 So.2d 109 (Fla. 1989) (State Habeas).

PER CURIAM.

John Richard Marek appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion to vacate judgment and sentence of death. He also petitions this Court for a writ of habeas corpus. We granted Marek a stay of execution from his first death warrant and ordered briefs on the issues. Marek v. Dugger, Nos. 73,175 & 73,278 (Fla. Nov. 8, 1988). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We now affirm the lower court's denial of Marek's motion and deny his petition for habeas corpus relief.

This is Marek's first postconviction relief proceeding. We affirmed Marek's conviction and sentence on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986). The detailed facts surrounding the crime are set forth in that opinion.

Marek raised twenty-two points in his rule 3.850 petition, each of which was individually ruled upon by the trial court following a full evidentiary hearing. As to Marek's claim of counsel's ineffectiveness in his rule 3.850 petition, we find the dictates of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), were properly applied. The remaining claims were either raised or could have been raised previously and, thus, were properly denied on the basis of procedural default. We also find no basis for habeas corpus relief.

Accordingly, we affirm the trial court's denial of Marek's rule 3.850 motion and deny his petition for habeas corpus relief.

It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

Marek v. Singletary, 62 F.3d 1295 (11th Cir. 1995) (Federal HabeasPCR).

Defendant was convicted in the Circuit Court, Broward County, Stanton S. Kaplan, J., of first-degree murder, kidnapping, and other offenses, and he was sentenced to death. On appeal, the Florida Supreme Court, 492 So.2d 1055, affirmed. State petitions for postconviction relief, 547 So.2d 109, and habeas corpus, 626 So.2d 160, were denied. Petition for writ of habeas corpus was then filed. The United States District Court for the Southern District of Florida, No. 89-6824- CIV, Jose A. Gonzalez, Jr., J., denied relief. Petitioner appealed. The Court of Appeals, Dubina, Circuit Judge, held that: (1) attorney did not render ineffective assistance by failing to present evidence of petitioner's abusive and difficult childhood; (2) claims were procedurally defaulted; and (3) any error in instruction on kidnapping as aggravating circumstance was harmless. Affirmed.

DUBINA, Circuit Judge:

John Richard Marek (“Marek”), a Florida prison inmate convicted in 1984 of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, appeals the district court's judgment denying his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. After a thorough review of the record and briefs, and after hearing oral argument, we conclude that the district court correctly denied habeas relief and, accordingly, we affirm the judgment of the district court.

I. BACKGROUND

Following Marek's conviction and penalty phase proceeding, the jury recommended a sentence of death. After independent consideration of the facts of the case, the trial judge followed the recommendation of the jury and imposed a death sentence, finding four statutory aggravating circumstances and no mitigating circumstances applicable. Marek's convictions and sentence of death were affirmed on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986), 626 So.2d 160 (Fla.1993) (habeas petition denied), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994).

Marek sought post-conviction relief in state court by filing a motion to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850, raising 22 claims for relief. The state trial court conducted an evidentiary hearing on Marek's motion for post-conviction relief. At the conclusion of the hearing, the trial court denied the motion and entered an order detailing its findings regarding the 22 claims for relief which Marek alleged. R.-Vol. XX, Exh. AA-5. Marek then filed a petition for a writ of habeas corpus with the Florida Supreme Court as well as an appeal from the trial court's denial of his Rule 3.850 motion. The Florida Supreme Court affirmed the denial of the Rule 3.850 petition and denied the petition for habeas corpus relief. Marek v. Dugger, 547 So.2d 109 (Fla.1989).

Marek then filed a petition for writ of habeas corpus in federal district court. Following a hearing, the district court denied Marek's petition. This appeal followed. After Marek perfected his appeal to our court, he filed a second petition for habeas corpus relief with the Florida Supreme Court. In this latter petition, Marek alleged numerous grounds for relief.FN1 Marek v. Singletary, 626 So.2d 160 (Fla.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994). The Florida Supreme Court denied Marek any relief, finding all issues, but one, procedurally barred. Id.

FN1. Specifically, Marek asserted that Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), constituted a change of law which permitted a post-conviction challenge to jury instructions; that the use of his contemporaneous kidnapping conviction as an aggravating factor was invalid; that the jury received a constitutionally inadequate instruction with regard to the heinous, atrocious, or cruel aggravating factor; that every felony would involve, by necessity, the finding of a statutory aggravating circumstance, a fact which, under the particulars of Florida's statute, violates the Eighth Amendment; and that the pecuniary gain aggravating factor was invalid.

II. FACTS

The Florida Supreme Court described the murder of Adella Simmons as follows: This tragic incident began on June 16, 1983, when the victim and her female companion were returning home from a vacation. The victim's companion testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, appellant [Marek], who was driving a pickup truck, pulled over; that appellant was talkative and friendly; that he unsuccessfully attempted to fix the car and then offered to take one of the women, but not both, to a service station; that at approximately 11:30 p.m. the victim left with appellant and Raymond Wigley, who was an occupant of the pickup truck; that Wigley had been present during a part of appellant's conversation with the two women but remained silent; and that, during the five days she and the victim were together on their vacation, the victim did not have sexual intercourse.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that appellant was the more dominant of the two; that appellant joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that appellant drove the truck away from the beach when the conversation was completed. Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, the victim had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in the victim's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that the victim had been kicked with a great deal of force. According to the examiner, some of the victim's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower.

Police issued a “be-on-the-lookout” bulletin to law enforcement agencies for appellant and Wigley. On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took appellant into custody. The victim's jewelry was later found in the truck.

A fingerprint expert testified that six prints lifted from the lifeguard shack matched appellant's fingerprints, and one matched Wigley's. Only appellant's print was found inside the observation deck, where the body was discovered.

The appellant testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix the victim's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after the victim got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see the victim's body. Appellant admitted that after he had been incarcerated and a detective told him he had “made it to the big time,” he responded: “S.O.B. must have told all.” Marek v. State, 492 So.2d at 1056-57.

III. ISSUES

Although Marek raised 22 claims in his federal habeas corpus petition, he only alleges five claims on appeal.FN2 We see no merit to Marek's claims regarding alleged ineffective assistance of appellate counsel and ineffective assistance of trial counsel for failing to provide the mental health expert with certain background information and, therefore, we summarily affirm the district court's judgment on these issues. We also affirm the judgment of the district court denying habeas relief on the remaining claims raised by Marek. We feel compelled, however, to address separately several issues raised by Marek in this appeal.

FN2. Issues not clearly raised in the briefs are considered abandoned. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.1994).

IV. DISCUSSION

“In reviewing a petition filed under 28 U.S.C. § 2254, we presume that factual findings made by a state court are correct. We review factual conclusions made by the district court under the clearly erroneous standard. We review mixed questions of fact and law de novo. ” Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir.1992) (citations and footnote omitted), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993).

A. Ineffective Assistance of Counsel at the Penalty Phase

Marek alleges that he was denied the effective assistance of counsel at his penalty phase because his counsel failed to present compelling mitigation evidence which may have produced a different outcome-i.e., a sentence of life imprisonment. “Ineffectiveness of representation is a mixed question of law and fact subject to de novo review.” Bolender v. Singletary, 16 F.3d 1547, 1558 n. 12 (11th Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). A state court's conclusion that counsel rendered effective assistance is not a finding of fact binding on a federal court. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984).

In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show both (1) that the identified acts or omissions of counsel were deficient, or outside the reasonable range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Courts need not address both these prongs “if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069. We begin any ineffective assistance inquiry with “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065; accord, e.g., Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir.1992) (“We also should always presume strongly that counsel's performance was reasonable and adequate....”), cert. denied, 515 U.S. 1165, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995). “[A] petitioner seeking to rebut the strong presumption of effectiveness bears a difficult burden.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc). “In evaluating ineffective assistance of counsel claims, this court places particular weight on the trial counsel's explanation of trial strategy, proffered at a state trial court or federal district court evidentiary hearing....” Card v. Dugger, 911 F.2d 1494, 1509 (11th Cir.1990).

Marek contends that his counsel was deficient in his failure to investigate, develop, and present mitigating evidence regarding Marek's childhood, mental state, and general background. Marek states that his defense counsel should have travelled to Texas, where Marek lived prior to the murder, and interviewed witnesses. At the evidentiary hearing in state court, Marek's counsel, Mr. Moldof (“Moldof”), testified that he made tactical, strategic choices not to present evidence with regard to Marek's past since Marek himself admitted most of the evidence would be negative. See R.-Vol. XVII, p. 381. Moldof did secure the assistance of a mental health expert, Dr. Krieger, and through conversations with Dr. Krieger and Marek, counsel collected information regarding Marek's background and early childhood.

The record reflects that Marek was abandoned by his natural family at the age of nine and was subsequently raised by several different foster families. Marek's parents and other family members, however, had little or no contact with Marek for years prior to the murder and counsel strategically determined that their testimony would have little value. The most Marek's parents could testify was that Marek overdosed on his mother's medication when he was eight or nine months old and Marek suffered from a speech impediment. The foster parents who were called to testify at the state evidentiary hearing had no real knowledge of Marek's criminal background but knew Marek had been in trouble in the past. See R.-Vol. XVII, pp. 206-260.

At the state evidentiary hearing, Marek called Dr. Krop, a psychologist, who testified that he reviewed medical and school records in anticipation of the Rule 3.850 proceeding. Dr. Krop stated that although he was critical of Dr. Krieger because he could have obtained more information, he ultimately came to the same conclusion as Dr. Krieger, that Marek suffered from a severe anti-social personality disorder. See R.-Vol. XVI, pp. 123-188. The state called Dr. Krieger to testify at the evidentiary hearing. Dr. Krieger stated that even with the new evidence presented at the hearing regarding Marek's background he would not have altered his evaluation and assessment of Marek. Moreover, Dr. Krieger stated that he was concerned that Marek may have exaggerated his symptoms and this testimony would not have done the defendant any good. R.-Vol. XVII, pp. 262-309.

Moldof testified at the state evidentiary hearing. See R.-Vol. XVII, pp. 312-400. Moldof stated that the defense he presented on Marek's behalf was the “lingering doubt” theory that Marek's codefendant Wigley may have committed the murder. Moldof made a strategic decision not to present an intoxication defense because of the physical evidence at trial and because he did not think the jury would believe Marek's assertion that he consumed several cases of beer on the day of the murder. Id. at 358 (juror rolled her eyes when Marek testified that alcohol did not affect him). Moldof did, however, argue intoxication as a mitigating factor to the jury at the penalty phase. Moldof also argued age as a mitigating factor at the penalty phase. Moldof made a tactical decision not to call Dr. Krieger to testify at the penalty phase because he believed that Dr. Krieger's testimony may have done more harm than good. Dr. Krieger indicated in his report that he thought Marek was malingering and if Dr. Krieger was cross-examined by the state, this information would have come to the jury's attention.

“Under certain circumstances, trial counsel's decision not to investigate family childhood background may legitimately be the product of a reasoned tactical choice.” Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.1990) ( relying on Stanley v. Zant, 697 F.2d 955, 970 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)), cert. denied, 500 U.S. 910, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991). This court has “never held that counsel must present all available mitigating circumstance evidence in general, or all mental illness mitigating circumstance evidence in particular, in order to render effective assistance of counsel.” Waters, 46 F.3d at 1511. “To the contrary, the Supreme Court and this Court in a number of cases have held counsel's performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence, including some relating to the defendant's mental illness or impairment, was available.” Id. (examples omitted).

“A defense attorney is not required to investigate all leads, however, and ‘there is no per se rule that evidence of a criminal defendant's troubled childhood must always be presented as mitigating evidence in the penalty phase of a capital case.’ ” Bolender, 16 F.3d at 1557 (footnote omitted) ( quoting Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993), cert. denied, 513 U.S. 1161, 115 S.Ct. 1125, 130 L.Ed.2d 1087 (1995)). “Indeed, ‘[c]ounsel has no absolute duty to present mitigating character evidence at all, and trial counsel's failure to present mitigating evidence is not per se ineffective assistance of counsel.’ ” Bolender, 16 F.3d at 1557 (citations omitted). The inquiry must be whether the failure to put this alleged mitigation evidence before the jury was a tactical choice by trial counsel. Id.FN3 If so, this tactical choice must be given a strong presumption of correctness. Id.

FN3. The question of whether a decision by counsel was a tactical one is a question of fact. Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992).

We are persuaded that Marek's counsel made a reasonable strategic decision not to present to the jury the alleged mitigating evidence of Marek's sad childhood. Moldof testified at the hearing that information on Marek's recent past, “why he left home, might be something of homosexuality which I thought would be very negative to this jury.” R.-Vol. XVII, pp. 324, 334. Moldof also noted the nature of the crime and tactically decided that evidence of Marek's troubled past would not “have altered their [the jury's] repugnance in this case.” Id. at 372-74. Moldof also made a tactical decision regarding Marek's Texas prison records. He did not obtain these records because if he “didn't bring it out probably the State wouldn't be able to get before the jury he [Marek] was ever incarcerated.” Id. at 336-37.

The record reflects that Moldof conducted a reasonable investigation with regard to mitigation evidence to be presented at the penalty phase of Marek's trial. Marek told Moldof that his background would not generate any helpful mitigating evidence and, in fact, following Dr. Krieger's recommendation and collecting information on Marek's background, Moldof came to the same conclusion. This case is an example of defense counsel's attempt to present, based on tactical decisions, the best possible mitigation to the jury and judge at sentencing. The evidence presented during the state evidentiary hearing convinces us that Moldof's representation fell within the reasonable range of attorney performance.

Even if counsel's performance were deemed deficient, Marek fails to show any resulting prejudice from the allegedly deficient performance. See Strickland, 466 U.S. at 699-700, 104 S.Ct. at 2071. Given the particular circumstances of this case and the overwhelming evidence against Marek, evidence of an abusive and difficult childhood would have been entitled to little, if any, mitigating weight. See generally Francois v. Wainwright, 763 F.2d 1188, 1190-91 (11th Cir.1985). Accordingly, Marek fails to satisfy both prongs of the Strickland standard and, therefore, the district court properly concluded that Marek's counsel did not render ineffective assistance of counsel.

B. Preclusion of Mitigating Evidence

Marek contends that the sentencing court violated the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), when it precluded Marek from presenting and the jury from considering, evidence of mitigating factors. Marek's claim is threefold. He argues defense counsel was precluded from presenting mitigation to the jury (1) when counsel attempted to introduce a psychological report evaluating Marek and the trial court did not allow the admission of the report because the doctor was available to testify; (2) when defense counsel attempted to argue that Marek's codefendant received a life sentence and thus, Marek should receive equal treatment but the trial court disallowed this argument unless the state could disclose the contents of the codefendant's confession relating to the culpability of each defendant; and (3) when the trial court did not instruct the jury regarding no significant history of criminal activity as a mitigating factor. We will discuss each contention in turn.

1. Dr. Krieger's report

Marek did not raise this particular claim on direct appeal, but raised it for the first time in his post-conviction proceedings in state court. Following an evidentiary hearing, the trial court found this issue to be procedurally barred. Upon review of Marek's Rule 3.850 petition, the Florida Supreme Court affirmed the trial court's decision finding that the issue was procedurally barred because it could have been, but was not, raised on direct appeal. See Marek v. Dugger, 547 So.2d 109 (Fla.1989). The federal district court also found this issue to be procedurally defaulted because it had not been properly and fairly raised in the state courts, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See R.-Vol. 4, Exh. 33, p. 5-6. Alternatively, the district court found that:

The state court refused to allow Marek's psychological report to be introduced into evidence by itself, adjudging the report to be hearsay. Marek's psychologist was available to testify, yet Marek's counsel made a strategic decision not to use the doctor's testimony. There was no limitation on the presentation of this evidence to the jury, hence, no violation occurred. Id. (citations omitted).

A state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitutional claims in state court, or who attempts to raise claims in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506 (1977). “[W]here the state court correctly applies a procedural default principle of state law, Sykes requires the federal court to abide by the state court's decision.” Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.), cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 68 (1990). A federal court is not required to honor a state procedural ruling unless that ruling rests on an adequate and independent state ground. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). If the last state court rendering a judgment in the case “clearly and expressly” states that its judgment rests upon a state procedural bar, then the federal court may be barred from considering that claim. Id. at 263, 109 S.Ct. at 1043. “However, should a state court reach the merits of a claim notwithstanding a procedural default, the federal habeas court is not precluded from considering the merits of the claim.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). When a state court addresses both the independent state procedural ground and the merits of the federal constitutional claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim. Id.

Marek may overcome his procedural default by showing cause for the procedural default and resulting prejudice. Cause requires a showing of some objective factor external to the defense, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), which prevented counsel from constructing or raising the claim. McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). This Marek has failed to do. Accordingly, we hold that the district court properly concluded that this claim is procedurally defaulted and we decline to reach the merits of the claim. See Alderman, 22 F.3d at 1549.FN4

FN4. We hold in the alternative that the claim lacks merit because counsel was not precluded from presenting this alleged mitigating evidence. He made a tactical choice not to have Dr. Krieger testify. See discussion A infra. Since there was no preclusion, there is no error. See generally Hitchcock, 481 U.S. at 394, 107 S.Ct. at 1822. See also Horsley v. Alabama, 45 F.3d 1486, 1489 n. 6 (11th Cir.1995).

2. Evidence of codefendant's sentence

Marek also contends that his counsel was precluded from presenting evidence of his codefendant's life sentence in mitigation. A related but different claim was raised on direct appeal. The Florida Supreme Court concluded that Marek's claim that the trial court erred in sentencing him to death in view of the fact that the judge had previously sentenced his codefendant to life in prison for the same offense, was not “cruel and unusual, arbitrary, and unequal.” Marek v. State, 492 So.2d at 1058. The court observed that the evidence clearly established that Marek was the more dominant of the two. The federal district court determined that this issue was procedurally defaulted and alternatively found that the state court's factual determination that Marek was the dominant actor was entitled to deference pursuant to Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The federal district court concluded that Marek's claim that the sentencing court erred in not allowing mitigating evidence of the disproportionate sentences must be denied. R.-Vol. 4, Exh. 33, p. 5.

The district court properly found this claim was procedurally defaulted because Marek failed to raise this specific claim on direct appeal. Marek raised this claim in his post-conviction proceedings and both the state trial court and the Florida Supreme Court found this issue to be procedurally barred. Marek has failed to show cause for and resulting prejudice from the procedural default. See Sykes, 433 U.S. at 87, 97 S.Ct. at 2506. Accordingly, the district court properly concluded that the claim was procedurally defaulted. See discussion infra B. 1.

We note, however, that the district court was correct in affording deference to the state court's finding that Marek was the dominant actor. The record evidence amply supports this finding. Both Marek and the victim's traveling companion testified that Marek was the more talkative; that codefendant Wigley remained in the truck during Marek's attempts to fix the car; that Marek persuaded the victim to get in the truck with the two men; that three witnesses who came into contact with Marek and the codefendant on the beach around the time of the murder testified that Marek appeared to be the more dominant of the two; and that only Marek's fingerprints were found inside the observation deck where the body was discovered. See Marek v. State, 492 So.2d at 1058. Thus, in light of this evidence, the alleged mitigating evidence of codefendant Wigley's life sentence may not have been mitigating after all. See Demps v. Dugger, 874 F.2d 1385, 1390-91 (11th Cir.1989) (op. of Fay, J.), cert. denied, 494 U.S. 1090, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990)); id. at 1395-96 (Clark, J., concurring). Accordingly, Marek's claim lacks merit.

3. No significant criminal history

Marek also contends that the trial court erred in failing to instruct the jury that he had no significant criminal history. The record reflects that at trial, defense counsel sought to have the jury instructed regarding this mitigating circumstance. R.-Vol. IX, Exh. A-11, p. 1284. The trial court ruled that if the jury was so instructed, the prosecution would be able to bring up Marek's felony conviction in Texas. Id. At that point, defense counsel made a strategic decision not to argue this mitigating factor to the jury. There was no limitation or restriction placed on defense counsel with regard to presentation of mitigating factors. See Hitchcock v. Dugger, 481 U.S. at 394, 107 S.Ct. at 1822. Accordingly, Marek is entitled to no relief on this claim.

C. Jury instructions on Aggravating and Mitigating Factors

In determining the appropriateness of the death sentence recommended by the jury, the judge found four aggravating factors and no mitigating factors. The court found that the murder was committed during the course of a kidnapping, a felony involving the use or threat of violence; that the murder was committed while Marek was engaged in the commission of an attempted burglary with the intent to commit sexual battery, and in the course thereof, committed an assault; that the murder was committed for pecuniary gain; and that the murder was especially heinous, atrocious, and cruel.

The state argues, and the district court found, that Marek's allegations regarding the jury instructions on the aggravating factors are procedurally defaulted. On direct appeal, Marek challenged the sufficiency of the aggravating factors, not the instructions. The Florida Supreme Court found all four aggravating factors were proven beyond a reasonable doubt. Marek v. State, 492 So.2d 1055, 1058 (Fla.1986). Marek first challenged the jury instructions on the aggravating factors in his Rule 3.850 motion. Thus, the district court concluded that Marek's challenge to the jury instructions was procedurally defaulted because he did not raise this specific claim on direct appeal. See Sykes, 433 U.S. 72, 97 S.Ct. 2497.

Following the district court's decision and after Marek's appeal to our court, Marek filed a second state habeas petition. Upon review of that petition, the Florida Supreme Court determined that Marek's challenge to the use of his contemporaneous kidnapping conviction as an aggravating factor was procedurally barred. Furthermore, the supreme court found that the jury instruction on kidnapping as an aggravating circumstance could not have affected the jury's recommendation and that any error was harmless beyond a reasonable doubt. We agree. See Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Florida Supreme Court noted that the jury found Marek guilty of kidnapping prior to receiving the instruction on kidnapping as an aggravating factor in the penalty phase and consequently, without receiving the instruction, the jury still had the information concerning Marek's conduct in regard to the kidnapping. Furthermore, we note that even without this aggravating circumstance there were three other aggravating circumstances and no mitigating circumstances. Thus, Marek cannot show that this alleged error had a “substantial and injurious effect” on the jury's determination. Brecht, 507 U.S. at ----, 113 S.Ct. at 1722 (quotations omitted).

Marek's remaining challenges to the jury instructions on the aggravating factors are procedurally defaulted. Marek fails to establish “cause and prejudice” sufficient to excuse his failure to present these claims on direct appeal. McCleskey, 499 U.S. at 493-94, 111 S.Ct. at 1469-70 (1991). However, Marek may make a colorable showing that he is “actually innocent of the death penalty by presenting evidence that an alleged constitutional error implicates all of the aggravating factors found to be present by the sentencing body.” Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir.1991) (en banc) (emphasis in original), cert. denied, 506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992).

That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner was ineligible for the death penalty. In other words, the petitioner must show that absent the alleged constitutional error, the jury would have lacked the discretion to impose the death penalty; that is, that he is ineligible for the death penalty. Id. (footnote omitted) (emphasis in original). See also Sawyer v. Whitley, 505 U.S. 333, 347 n. 15, 112 S.Ct. 2514, 2523 n. 15, 120 L.Ed.2d 269 (1992) (quoting and specifically approving the Johnson standard). Marek cannot meet this standard. Regardless of the inapplicability of the aggravating factor that the murder was committed during the course of a violent felony, the kidnapping, the record supports the district court's finding that the remaining aggravating factors are valid. See also Marek v. State, 492 So.2d at 1058. The aggravating factor that the murder was committed for pecuniary gain was affirmed by the Florida Supreme Court and must be given deference considering the evidence of the victim's jewelry which was found in the truck Marek was driving. Additionally, the aggravating factor that the crime was heinous, atrocious, and cruel is amply supported by the facts and circumstances of the murder. See id. Any reasonable juror would have concluded that Marek's actions fit this description. Accordingly, Marek is still eligible for the death penalty, and the actual innocence exception does not apply.

V. CONCLUSION

Based upon the foregoing discussion and for the reasons stated in the district court's opinion, we affirm the district court's judgment denying habeas corpus relief. AFFIRMED.

The bruised, nude, strangled, and burned body of Adela Simmons was discovered
on June 17, 1983 in the Lifeguard area of Dania Beach.

John Richard Marek

John Richard Marek

John Richard Marek, 47, during a recent court appearance before Broward Circuit
Judge Peter Weinstein. (Lou Toman, File / May 7, 2009)