The United States Court of Appeals
For the Eleventh Circuit

opinion 06-10783

opinion 06-10784 in re

Florida Supreme Court
Briefs and Opinions

Docket #89142 - Arthur Dennis Rutherford, Appellant, vs. State of Florida.
727 So. 2d 216; December 17, 1998

Docket #SC99-150 - Arthur Dennis Rutherford, Petitioner, vs. Michael W. Moore, Respondent. 774 So. 2d 637; October 12, 2000

opinion

petition for writ of habeas corpus

response to petition

reply to state's response

Docket #SC06-18 - Arthur Dennis Rutherford, Appellant, vs. State of Florida, Appellee. 926 So.2d 1100; January 27, 2006

Docket #SC06-1931 - Arthur Dennis Rutherford, Appelant, vs. State of Florida, Appellee. 940 So. 2d 1112; October 12, 2006.

Docket #SC06-1946 - Arthur Dennis Rutherford, Petitioner, vs. James R. McDonough, etc., Respondent. 940 So. 2d 1112; October 12, 2006. (Consolidated Case).

opinion

Docket #SC06-1931

Docket #SC06-1946

Summary:

Rutherford was hired by 63 year old widow Stella Salamon to do a series of odd jobs, including replacing her sliding glass patio doors. She expressed concern about him to her friends.

Her naked body was later found submerged in the bathtub of her Panhandle home, dead from drowning or asphyxiation. Police found Rutherford's fingerprints and palm prints in the bathroom where she was killed.

At his trial, two witnesses, Elizabeth Ward and her mother, Mary Heaton, testified that Rutherford asked for their help in cashing a $2,000 check on Salamon's bank account. Rutherford forged Salamon's name on the check and took Heaton to a bank, where she cashed the check.

Several friends and relatives testified that Rutherford had told them of his intentions to rob a lady and leave her in the bathtub, but no one took him seriously. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds.

The trial Judge sentenced Rutherford to death following a 7-5 jury vote recommending death.

Citations:

Rutherford v. State, 545 So.2d 853 (Fla. 1989) (Direct Appeal).
Rutherford v. State, 727 So.2d 216 (Fla. 1998) (PCR).
Rutherford v. Moore, 774 So.2d 637 (Fla. 2000) (Postconviction).
Rutherford v. State, 926 So.2d 1100 (Fla. 2006) (Successive Postconviction).
Rutherford v. Crosby, 385 F.3d 1300 (11th Cir. 2004) (Habeas).

Final Meal:

Fried freshwater catfish, fried green tomatoes, fried eggplant, hush puppies and sweet tea.

Final Words:

None.

ClarkProsecutor.org

Florida Department of Corrections

DC Number: 105314
Name: RUTHERFORD, ARTHUR D
Race: WHITE
Sex: MALE
Hair Color: BROWN
Eye Color: GREEN
Height: 5' 10"
Weight: 211
Birth Date: 03/16/49
Initial Reception: 05/27/83
Current Facility: FLORIDA STATE PRISON

Offense Date: 08/22/1985
Convictions: 1ST DG MUR/PREMED, ROBB. GUN/DEADLY WPN
Sentencing: 12/09/1986
COUNTY: SANTA ROSA
CASE#: 8500476

State executes convicted killer

By Nathan Crabbe - Gainesville Sun

October 19, 2006

RAIFORD - A handyman convicted of murdering a Milton woman was executed Wednesday night, paving the way for Gainesville's most notorious killer to face the same fate next week. Arthur Rutherford, 57, was pronounced dead at 6:13 p.m. at Florida State Prison. The U.S. Supreme Court rejected last-minute petitions to stop the execution, including one arguing that newly released details about lethal injection deserved a court review.

Attorney Baya Harrison, who represents Gainesville student murderer Danny Rolling, is raising similar issues in that case. Harrison said the court's rejection of the argument makes next Wednesday's scheduled execution of Rolling more likely. "It's not at all good for Rolling," he said. "The issues that Rutherford raised are the issues that we also raised."

Gainesville Citizens for Alternatives to the Death Penalty and other opponents to capital punishment held a vigil across from the prison in protest of the execution. Group member Bonnie Flassig said the focus should be on Rutherford, rather than the pending execution of Rolling. "There's another man being killed," she said.

On Wednesday morning, Rutherford had last visits with more than a dozen relatives. He ate a final meal of fried freshwater catfish, fried green tomatoes, fried eggplant, hush puppies and sweet tea. Rutherford declined to make a final statement at the execution. He was the 62nd inmate executed in Florida since the death penalty was reinstated in 1976, and the second since a 17-month lull in executions caused in part by challenges to the lethal injection process.

He was sentenced to death for murdering 63-year-old Stella Salamon, a widow whose naked body was found submerged in her bathtub in 1985. A neighbor who found the body, Beverly Elkins, said the execution ended a long ordeal. "I think it's about time," she said. "It was such a horrible, premeditated crime."

Rutherford had maintained his innocence, claiming a witness in the case had confessed to the crime. The courts had continuously rejected that claim, along with his challenges to the lethal injection process as cruel and unusual punishment. The latest challenge revolved around the Florida Department of Corrections' adoption of a document in August laying out the execution process. The document included new details about the amounts of drugs injected, the drug and alcohol testing of executioners and a cutdown procedure when a vein can't be located. The department didn't publicly release the document until this week, leading Rutherford's attorneys to ask for a stay of execution to review it. The Florida Supreme Court rejected that argument Tuesday and the U.S. Supreme Court followed suit Wednesday.

The nation's highest court turned down four separate petitions to halt the execution. Only Justice John Paul Stevens voted to grant a stay. Linda McDermott, one of Rutherford's attorneys, had asserted the document showed the state made changes to the execution process that necessitated a review. But she said the last-minute release of the document made delaying the execution more difficult. "It was too close to the execution for anyone to want to stop it," she said.

State executes killer in 1985 murder case

By Ron Word - Miami Herald

Associated Press, Oct. 19, 2006

STARKE - Convicted killer Arthur Rutherford was executed Wednesday by lethal injection for the 1985 murder of a Milton woman. Rutherford, a 57-year-old Vietnam veteran and handyman, was pronounced dead at 6:13 p.m., the governor's office said. He was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.

He was condemned for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.

Rutherford nodded to someone in the front row but made no final statement. He declined to take a sedative before receiving the injection. He opened and closed his eyes several times but stopped moving at 6:02 p.m. and his skin turned progressively more pale until officials called the time of death at 6:13 p.m. Rutherford was executed after the Supreme Court on Wednesday turned down four separate efforts by him to halt his execution. Justice John Paul Stevens, alone among his colleagues, voted to grant a stay of execution.

On Wednesday morning, Rutherford had last visits with more than a dozen relatives, including his father, children, grandchildren, sisters and brothers. None of his relatives attended the execution.

He ate a final meal of fried green tomatoes, fried eggplant, fried catfish, hush puppies and sweet tea. ''His mood is calm,'' said Gretl Plessinger, a spokeswoman for the state Department of Corrections.

He had the same meal in January, when the U.S. Supreme Court stopped his execution just minutes before he was to be killed. It was later decided that death-row inmates could challenge the use of the lethal chemicals in federal courts, although Rutherford and others haven't succeeded in using that argument to stop executions.

Salamon had hired Rutherford to do a series of odd jobs, including replacing her sliding glass patio doors. She expressed concern about him to her friends. Police found Rutherford's fingerprints and palm prints in the bathroom where Salamon was killed.

At his trial, two witnesses, Elizabeth Ward and her mother, Mary Heaton, testified that Rutherford asked for their help in cashing a $2,000 check on Salamon's bank account. Rutherford forged Salamon's name on the check and took Heaton to a bank, where she cashed the check. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds. The medical examiner said she died from drowning or asphyxiation.

Florida executes killer handyman

By Michael Peltier - Reuters News

October 19, 2006

TALLAHASSEE, Florida (Reuters) - After strapping him to a gurney for the second time in nine months, Florida prison officials on Wednesday executed a 57-year-old former handyman by lethal injection for the 1985 murder of an elderly woman in Florida's rural Panhandle. Prison officials at Florida State Prison near Starke pronounced Arthur Rutherford dead at 6:13 p.m. EDT after giving him a deadly cocktail of chemicals that paralyzed his lungs and stopped his heart.

Rutherford became the 62nd prisoner executed in Florida since the death penalty was reinstated in 1976. He is the 19th inmate to be executed during the tenure of Gov. Jeb Bush, the younger brother of President Bush. Next week, serial killer Danny Rolling is scheduled to die for the 1990 mutilation murders of five college students at the University of Florida in Gainesville. The macabre slayings sent panic across U.S. college campuses until Rolling's capture following a botched robbery attempt 12 days after his last murder.

Rutherford was convicted in August 1986 for the death of Stella Salamon, a 63-year-old woman for whom he did odd jobs. She was found drowned in her bathtub after being badly beaten and strangled. The jury, on a 7-5 vote, recommended he be put to death. Rutherford had been scheduled to die in January and had been strapped to a gurney in the death chamber at Florida State Prison, but he was spared by a last-minute stay from the United States Supreme Court.

The stay was prompted by a legal challenge claiming the anesthesia administered during legal injection might not be adequate to prevent an inmate from experiencing extreme pain. The high court sent the case back for further review and in September the 11th Circuit Court of Appeals rejected the anesthesia challenge without taking additional evidence. Executions using lethal injection have been postponed in at least five states pending further review of execution procedures, and Rutherford's execution came despite a flurry of appeals before the Florida and U.S. Supreme courts.

Gretl Plessinger, spokeswoman for the Florida Department of Corrections, said Rutherford spent Wednesday morning with 20 members of his extended family including his father, two daughters and son. Also present were his immediate siblings and grandchildren.

He requested the same meal he had in January: Fried green tomatoes, catfish, fresh water, fried eggplant, sweet tea, and hush puppies. He also met with a spiritual adviser, a Catholic volunteer, Dale Recinella.

Rutherford put to death for murder

By Paul Flemming - Tallahassee Democrat

October 19, 2006

STARKE - Arthur Rutherford was executed Wednesday night, put to death for the 1985 murder of Stella Salamon in her Milton home. It was Florida's 62nd execution since the death penalty was reinstated in 1976. Rutherford's final appeals to the U.S. Supreme Court were rejected late Wednesday afternoon.

The Santa Rosa County native, 57, had no final statement before his execution. No friends or family of Salamon were among the 24 witnesses to the lethal injection. When prison officials opened the curtain into the death chamber at 6 p.m., Rutherford craned his neck and seemed to acknowledge his spiritual adviser among the witnesses. Dale Recinella, a lay Catholic prison chaplain, raised an open hand to the condemned man through the window that separates witnesses and the execution team.

As the fatal three drugs began to be administered, Rutherford's lips moved while the rest of his body was restrained by leather straps on a hospital gurney. At 6:01 his eyes blinked, his mouth fell agape and he stared blankly at the ceiling. At 6:11, the first of two blue-smocked and hooded medical personnel entered the death chamber, checked Rutherford's vitals and departed, the last with a nod to warden Randall Bryant. ''The sentence of the state of Florida vs. Arthur Rutherford has been carried out at 6:13,'' said an assistant warden at Florida State Prison.

About 50 anti-death penalty protesters held a vigil across the highway from the maximum-security prison while the execution was taking place. Mark Elliott, a spokesman for Floridians for Alternatives to the Death Penalty, said the group included people who came in a bus chartered by the Catholic Diocese of Orlando. No one supporting the death penalty made a public showing Wednesday. ''The execution today was of an ex-Marine, a Vietnam veteran with five children calling for him to be spared,'' Elliott said. ''Is he really the worst of the worst that this punishment is designed for?''

Rutherford was executed a day after a more detailed description of Florida's Death Row procedures and lethal-injection protocol was released publicly. The U.S. Supreme Court rejected three petitions for stays of execution. ''Certainly, we thought that our petitions had merit,'' said Linda McDermott, who was one of Rutherford's attorneys for nearly seven years. ''We're obviously aware of the realities.''

Rutherford, a Santa Rosa County native, was condemned for the beating and strangling death of 63-year-old Salamon in her Milton home more than two decades ago. He was scheduled for execution in January when a last-minute stay from the U.S. Supreme Court spared his life then. No such stay came Wednesday night.

Salamon, a native of Australia, has no known family still in the United States. Her neighbor and friend, Beverly Elkins - who found Salamon's body after she was murdered - said last week it was long past time that Rutherford paid for his crime A Walton County jury convicted him in a second trial - the first in Santa Rosa County was declared a mistrial - and voted 7-5 to condemn him to death. But Rutherford, from his trial onward, has maintained his innocence.

Rutherford had worked on Salamon's house when it was first built a dozen years before and she had him working on her sliding glass doors at the time of the murder. But she was uneasy about Rutherford's presence around her house. Elkins said Salamon told her she thought Rutherford was ''casing the joint'' in the days before the murder.

Next week, Danny Rolling, the Gainesville Ripper who pleaded guilty to the 1990 murder of five students, is set for execution. On Tuesday, the Florida Supreme Court rejected his petition for a stay, exhausting his state appeals.

Convicted Killer Arthur Rutherford Executed

First Coast News

October 18, 2006

STARKE, FL (AP) -- Convicted killer Arthur Rutherford was executed Wednesday by lethal injection for the 1985 murder of a Milton woman. Rutherford, a 57-year-old Vietnam veteran and handyman, was pronounced dead at 6:13 p.m., the governor's office said. He was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.

He was condemned for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home. Rutherford was executed after the Supreme Court on Wednesday turned down four separate efforts by him to halt his execution. Justice John Paul Stevens, alone among his colleagues, voted to grant a stay of execution.

On Wednesday morning, Rutherford had last visits with more than a dozen relatives, including his father, children, grandchildren, sisters and brothers. He ate a final meal of fried green tomatoes, fried eggplant, fried catfish, hush puppies and sweet tea. "His mood is calm," said Gretl Plessinger, a spokeswoman for the state Department of Corrections. He had the same meal in January, when the U.S. Supreme Court stopped his execution just minutes before he was to be killed. It was later decided death row inmates could challenge the use of the lethal chemicals in federal courts, although Rutherford and others haven't succeeded in using that argument to stop executions.

Salamon had hired Rutherford to do a series of odd jobs, including replacing her sliding glass patio doors. She expressed concern about him to her friends. Police found Rutherford's fingerprints and palm prints in the bathroom where Salamon was killed. At his trial, two witnesses, Elizabeth Ward and her mother, Mary Heaton, testified that Rutherford asked for their help in cashing a $2,000 check on Salamon's bank account. Rutherford forged Salamon's name on the check and took Heaton to a bank, where she cashed the check. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds. The medical examiner said she died from drowning or asphyxiation.

Rutherford is the 62nd inmate executed in Florida since 1976, when executions resumed after a 12-year moratorium, and the 258th since 1924, when the state took over the duty from individual counties. His execution is the second this year in Florida. Gainesville serial killer Danny Rolling is scheduled to die Oct. 25.

Linda McDermott, one of Rutherford's attorneys, had earlier Wednesday said Rutherford challenged the method of execution. In one petition, Rutherford argued the state's system of applying the death sentence is arbitrary and unconstitutional. Another one asked the justices to send an appeal over Florida's three execution chemicals back to a lower court to be heard.

A third petition asked the court to hear objections to what McDermott claimed are changes to Florida's execution protocol. She was outraged by a nine-page document released Tuesday by the Corrections Department to explain the execution procedures in great detail. Among the new details are how executioners are hired, the drug and alcohol testing of members of the execution team, detailed descriptions of the order and the amount of chemicals injected, a cut down procedure if a vein cannot be located and a check list for the execution team. "It is disturbing," said McDermott, who questioned how the new document was drafted and who was consulted.

The state, the Florida Supreme Court and 11th U.S. Circuit Court of Appeals said the Aug. 16 document does not change the procedure. They said it only gives the public more details of the procedure used since 2000, when the state switched from the electric chair to lethal injection. The Florida Supreme Court said that their overview of current lethal injection procedures "reveals nothing that would cause this court to revisit our previous conclusions that procedures for administering the lethal injection ... do not violate the Eighth Amendment's prohibition on cruel and unusual punishment."

The U.S. Supreme Court's earlier reprieve for Rutherford came when it took up Clarence Hill's appeal. Hill was convicted in the death of a Pensacola police officer. Hill and Rutherford sought permission to challenge that the chemicals used in Florida's execution process caused extreme pain. Hill was executed Sept. 20 and never got a hearing on the chemical issue and neither has Rutherford, who was sentenced to die in 1986 for killing Salamon, who was from Australia.

Killer dies in death chamber

By Paul Flemming - Pensacola News

October, 19, 2006

STARKE -- Arthur Rutherford was executed Wednesday night, put to death for the 1985 murder of Stella Salamon in her Milton home. It was Florida's 62nd execution since the death penalty was reinstated in 1976. Rutherford's final appeals to the U.S. Supreme Court were rejected late Wednesday afternoon.

Rutherford's bloody palm prints were on the tile of the bathtub where Salamon was discovered Aug. 22 more than 20 years ago. She was stripped, beaten and left to drown. Co-workers and associates testified that Rutherford told them of his intentions before the killing and bragged of it afterward.

The Santa Rosa County native, 57, had no final statement before his execution. No friends or family of Salamon were among the 24 witnesses to the lethal injection. When prison officials opened the curtain into the death chamber at 5 p.m. Central Daylight Time, Rutherford craned his neck and seemed to acknowledge his spiritual adviser among the witnesses. Dale Recinella, a lay Catholic prison chaplain, raised an open hand to the condemned man through the window that separates witnesses and the execution team.

As the fatal three drugs began to be administered, Rutherford's lips moved while the rest of his body was restrained by leather straps on a hospital gurney. At 5:01 his eyes blinked, his mouth fell agape and he stared blankly at the ceiling. At 5:11, the first of two blue-smocked and hooded medical personnel entered the death chamber, checked Rutherford's vitals and departed, the last with a nod to warden Randall Bryant. "The sentence of the state of Florida v. Arthur Rutherford has been carried out at 5:13," said an assistant warden at Florida State Prison.

About 50 anti-death penalty protesters held a vigil across the highway from the maximum security prison while the execution was taking place. Mark Elliott, a spokesman for Floridians for Alternatives to the Death Penalty, said the group included people who came in a bus chartered by the Catholic Diocese of Orlando. No one supporting the death penalty made a public showing Wednesday. "The execution today was of an ex-Marine, a Vietnam veteran with five children calling for him to be spared," Elliott said. "Is he really the worst of the worst that this punishment is designed for?"

Rutherford was executed a day after a more detailed description of Florida's Death Row procedures and lethal injection protocol was released publicly. The U.S. Supreme Court rejected three petitions for stays of execution. "Certainly, we thought that our petitions had merit," said Linda McDermott, who was one of Rutherford's attorneys for nearly seven years. "We're obviously aware of the realities."

Earlier in the day, Rutherford had a final visit from a dozen family members that included his father, a brother and sister, three daughters and a son, and three grandchildren. For one of the three hours of the final visit, Rutherford and family members were allowed to touch, according to Department of Corrections spokeswoman Gretl Plessinger. McDermott said her client was devoted to his family and the execution was difficult for them. "I don't know how they're getting through the night," she said.

Rutherford was condemned for the beating and strangling death of 63-year-old Salamon in her Milton home more than two decades ago. He was scheduled for execution in January when a last-minute stay from the U.S. Supreme Court spared his life then. No such stay came Wednesday night.

Salamon, a native of Australia, has no known family still in the United States. Her neighbor and friend, Beverly Elkins -- who found Salamon's body after she was murdered -- said last week it was long past time that Rutherford paid for his crime. A Walton County jury convicted him in a second trial -- the first in Santa Rosa County was declared a mistrial -- and voted 7-5 to condemn him to death.

But Rutherford, from his trial onward, has maintained his innocence. Rutherford had worked on Salamon's house when it was first built a dozen years before, and she had him working on her sliding glass doors at the time of the murder. But she was uneasy about Rutherford's presence around her house. Elkins said Salamon told her she thought Rutherford was "casing the joint" in the days before the murder.

Next week, Danny Rolling, "the Gainesville Ripper" who pleaded guilty to the 1990 murder of five students, is set for execution. On Tuesday, the Florida Supreme Court rejected his petition for a stay, exhausting his state appeals.

ProDeathpenalty.com

During the summer of 1985, Arthur Rutherford told his friend Harold that he planned to kill a woman and place her body in her bathtub to make her death look like an accident. Rutherford also told a longtime business associate that he was going to get money by forcing a woman to write him a check and then putting her in the bathtub. If the woman initially refused to make out the check, Rutherford explained that he would “get her by that arm and she would sign.” It was then that Rutherford bragged that he would do the crime but not the time.

About a week after making those statements, Rutherford again told Harold about his homicidal plan. Rutherford also told his uncle that they could get easy money by knocking a woman Rutherford worked for in the head. Unfortunately, none of these three men took Rutherford seriously enough to report his plans to the authorities. If any of them had, Rutherford's murder of Stella Salamon a week later could have been prevented.

Mrs. Salamon, a 63-year-old widow originally from Australia, lived alone in Santa Rosa County, Florida with her two Pekingese dogs since her husband had died unexpectedly from a heart attack two years earlier. Other than a sister-in-law in Massachusetts, she had no family in this country.

Rutherford, who hired out to do odd jobs, installed sliding glass doors in the doorway leading from Mrs. Salamon's patio to her kitchen. Before long, Mrs. Salamon had those sliding glass doors replaced because they did not close and lock properly. She told her long-time friend and next-door neighbor Beverly that the unlocked doors made her nervous and that she wondered if Rutherford had intentionally made the doors so that she could not lock them. Mrs. Salamon also said that Rutherford kept coming to her house and acted as though he was “casing the joint.”

It is unclear whether Mrs. Salamon notified Rutherford about the problems with the doors, but on the morning of August 21, 1985, Rutherford asked Harold to come along with him when he went to repair the doors he had installed for Mrs. Salamon. When they got to her house, she told them she had those doors replaced. Harold left to get money to give Mrs. Salamon as a refund on the doors. Rutherford stayed behind at Mrs. Salamon's house. Around noon that day, Mrs. Salamon received a call from her friend Lois. Mrs. Salamon told Lois that she was nervous because Rutherford had been at her house for “quite awhile.” Lois drove over there and found Rutherford sitting shirtless on Mrs. Salamon's porch. Rutherford left after Lois arrived, and Mrs. Salamon told her that Rutherford “really has made me nervous” and had been sitting around on her couch.

Apparently, Mrs. Salamon never got the refund that Harold was supposed to bring, and Rutherford left the old glass doors in her garage. At 7:00 the next morning, August 22, Rutherford and Harold went to retrieve the old doors from Mrs. Salamon's garage. When they reached the house, Rutherford told Harold that he had a gun in his van and said, “If I reach for that gun, you'll know I mean business.” Harold testified that this was the first time he really believed that Rutherford might actually hurt someone, yet he still did nothing about it. While they were loading the doors, Harold overheard Mrs. Salamon say to Rutherford, “You can just forget about the money.”

Later that morning, between 9:30 and 10:30 a.m., the manager of a local Sears store saw Mrs. Salamon when she came by to pick up a package. She also stopped at the Consolidated Package Store and made a purchase at 10:29 a.m., according to computer sales records. After that, Rutherford was the only other person known to have seen Mrs. Salamon alive, and she was not alive long, as Rutherford's actions on that day evidence.

Around noon, Rutherford went to see a woman who sometimes baby-sat for his children and with whom he had once lived for a few months. He showed her one of Mrs. Salamon's checks and asked her to fill it out. The woman cannot read or write other than to sign her name, so she called for her thirteen-year-old niece.

Rutherford promised the girl money if she would fill out the check as instructed. She filled out the check the way Rutherford told her to, making it payable to the baby-sitter, but she did not sign anyone's name on it. Rutherford told the babysitter that he owed her money for work she had done for him and asked her to accompany him. He took her to the Santa Rosa State Bank, gave her the check, and sent her into the bank to cash it. Because of the blank signature line, the teller refused to cash the check; the woman returned to Rutherford's van and told him.

Rutherford responded by driving them to the nearby woods, where he took out a wallet, checkbook, and credit cards wrapped in a shirt, and threw the bundle into the trees. He also signed Mrs. Salamon's name onto the check, and then they went back to the bank. Outside the bank, the babysitter watched as Rutherford endorsed her name on the check. In doing so Rutherford misspelled her name, scratched it out, and corrected it. She re-entered the bank, and this time she successfully cashed the check and left with $2,000 in one hundred dollar bills. Rutherford gave her $500 of those funds, and she in turn gave the girl $5 for filling out the check.

Around 3:00 that afternoon, Rutherford visited his friend Johnny. He told Johnny that he had “bumped the old lady off” and showed him $1500 in cash. He wanted Johnny to hold $1400 of that amount for him. Rutherford said that he had hit the “old lady” in the head with a hammer, stripped her, and put her in the bathtub. Johnny refused to take the cash, and his mother later notified the police of Rutherford's claim to have committed a murder. Earlier that day Mrs. Salamon had made plans to go walking that evening with two neighbors.

At 6:30 p.m. her neighbor Beverly tried to contact Mrs. Salamon by phone but got no answer. She went to Mrs. Salamon's house, saw her car outside, and realized that she must still be at home. Beverly rang the front doorbell. After receiving no answer, she went around back and through the sliding glass doors saw that the television was on and that the normally calm dogs were jumping around excitedly. She retrieved a spare key to the house, met up with the other neighbor who was to have gone walking with them that night, and the two women let themselves into Mrs. Salamon's home.

When the two women entered the kitchen through the carport door, they heard water running. They followed the sound to a little-used guest bathroom. There they were horrified to find Mrs. Salamon's naked body floating in the water that filled the tub to overflowing. Realizing that their friend was dead, the stunned women went to call for help. When walking through the house, Beverly noticed that Mrs. Salamon's eyeglasses were on the kitchen floor underneath the counter. The makings of a tomato sandwich were out on the counter. Mrs. Salamon had liked to eat tomato sandwiches for lunch.

When crime scene investigators arrived they found three fingerprints on the handle of the sliding door to the bathtub, one fingerprint on the tile wall of the tub, and a palm print on the window sill inside the tub with the fingers up and over the sill as though the person had grabbed it. All of those prints were later identified as Rutherford's. Blood was spattered on the bathroom walls and floor.

According to an expert, the spatter pattern indicated that the blows occurred while Mrs. Salamon was sitting or kneeling on the bathroom floor. Mrs. Salamon's naked body floated face-up in the water. She had been viciously beaten. There were bruises on her nose, chin, and mouth and a cut on the inside of her lip consistent with a hand being held forcefully over her face. Her lungs showed signs of manual asphyxiation, apparently from someone covering her nose and mouth. Her arms and knees were bruised and scraped, and her left arm was broken at the elbow.

Of the three large wounds on her head, two were consistent with being struck with a blunt object or having her head slammed down. The other wound, a puncture that went all the way to the bone, appeared to be from a blow with a claw hammer or screwdriver. Her skull was fractured from one side to the other. Severe as those injuries were, none of them were the actual cause of Mrs. Salamon's death. Although Rutherford had beaten and smothered her, she had water in the lungs. That shows the 63-year-old widow was still alive when Rutherford stripped off her clothes and placed her in the bathtub to drown.

Democracyinaction.org

Do Not Execute Arthur Rutherford!

Arthur Dennis Rutherford
October 18, 2006
Florida

Arthur Dennis Rutherford, a white man, faces execution for the August 1985 death of Stella Salamon, 63, in Santa Rosa County, Florida. Rutherford is said to have planned to force Salamon to write him a check and then to kill her and make it seem like an accident. Witnesses testified that Rutherford had discussed the plan before and after Salamon’s death. Additional witnesses testified that Salamon had expressed fear of Rutherford leading up to the murder.

Since his time fighting in Vietnam, Rutherford is said to have experienced “jittery nerves, nightmares, and night sweats.” Also, Rutherford’s alcohol use increased after experiencing war. Medical experts diagnosed Rutherford with “an anxiety disorder” resulting from his time in Vietnam. Doctors also admitted that this disorder is similar to post traumatic stress disorder. Rutherford also was diagnosed as an alcoholic.

Unfortunately Rutherford’s jury never heard about his disorders. Instead, his lawyers decided to avoid presenting this potentially mitigating evidence. Defense lawyers instead decided to try to portray Rutherford as a hard worker and a good and honest father. Counsel also decided not to present information about Rutherford’s childhood abuse and his marital difficulties.

Rutherford’s trial counsel had a plausible reason for not presenting certain mitigating factors. However, they could have presented Rutherford as an honest, hard-working father who suffers from two mental disorders, has suffered abuse, and has marital problems. Because of a decision of his trial counsel a lot of mitigating evidence was never heard at trial. Furthermore it is important to note that Rutherford did not agree with the choices of his trial counsel. Rutherford maintained his innocence throughout proceedings. Such a stance directly conflicts with his counsel’s attempt to “humanize” Rutherford once he was found guilty instead of attempting to prove his innocence.

Medical testimony has shown that Rutherford suffers from a disorder, similar to post traumatic stress disorder, that may have affected his judgment on the day of Salamon’s death. Arthur Dennis Rutherford should not be put to death considering the circumstances of his mental stability and shaky defense.

Please write Gov. Jeb Bush requesting that he stop the execution of Arthur Dennis Rutherford.

Significant events in case of Arthur Rutherford

Bradenton Herald

Associated Press, Oct. 18, 2006

• Aug. 22, 1985: Body of 63-year-old Stella Salamon found submerged in bathtub in Milton home. She had a broken arm, bruises on her face and arms and severe head wounds. Medical examiner said she died from drowning or asphyxiation.

• Aug. 23: Arthur Rutherford arrested after getting assistance from friend to cash as $2,000 check on Salamon's account. Rutherford had done some carpentry work for Salamon. His finger and palm prints were found in bathroom where Salamon was killed.

• Sept. 11: Rutherford indicted on charges of first-degree murder and robbery with a firearm.

• Jan. 31, 1986: Rutherford found guilty of all charges.

• Feb. 1: Jury recommends death sentence by an 8 to 4 majority.

• April 2: Judge grants mistrial due to discovery violations by the state.

• Oct. 2: On retrial, Rutherford was found guilty on all charges. The jury, on a 7 to 5 vote, recommends death penalty.

• Dec. 9: Rutherford sentenced to death for murder count and 30 years on armed robbery.

• June 16, 1989: Florida Supreme Court affirms conviction and sentence.

• Oct. 30: U.S. Supreme Court denies appeal.

• Dec. 17, 1998: Florida Supreme Court denies appeal.

• Nov. 29, 2005: Gov. Jeb Bush signs death warrant.

• Jan. 30, 2006: U.S. Supreme Court stays Rutherford execution minutes before his scheduled death.

• Sept. 22: Bush reinstates death warrant and schedules execution for Oct. 18.

• Oct. 5: Appeal returned by the U.S. Supreme Court dismissed by appeals court in Atlanta.

• Oct. 6: State court rejects Rutherford's appeal.

• Oct. 12: Florida Supreme Court rejects Rutherford's appeal.

• Oct. 17: Florida Supreme Court and 11th U.S. Circuit Court of Appeals deny appeals.

• Oct. 18: U.S. Supreme Court denied two petitions and two motions for a stay of execution.

Arthur D. Rutherford

FADP.org

BACKGROUND INFORMATION

Arthur Dennis Rutherford is scheduled to be killed by the people of Florida in revenge for his August 1985 murder of Stella Salamon, 63, in Santa Rosa County, Florida. Rutherford is said to have planned to force Salamon to write him a check and then to kill her and make it seem like an accident. Witnesses testified that Rutherford had discussed the plan before and after Salamon's death. Additional witnesses testified that Salamon had expressed fear of Rutherford leading up to the murder.

Since his time fighting in Vietnam, Rutherford is said to have experienced "jittery nerves, nightmares, and night sweats." Also, Rutherford's alcohol use increased after experiencing war. Medical experts diagnosed Rutherford with "an anxiety disorder" resulting from his time in Vietnam. Doctors also admitted that this disorder is similar to post traumatic stress disorder. Rutherford also was diagnosed as an alcoholic. Unfortunately Rutherford's jury never heard about his disorders. Instead, his lawyers decided to avoid presenting this potentially mitigating evidence. Defense lawyers instead decided to try to portray Rutherford as a hard worker and a good and honest father. Counsel also decided not to present information about Rutherford's childhood abuse and his marital difficulties.

Rutherford's trial counsel had a plausible reason for not presenting certain mitigating factors. However, they could have presented Rutherford as an honest, hard-working father who suffers from two mental disorders, has suffered abuse, and has marital problems. Because of a decision of his trial counsel a lot of mitigating evidence was never heard at trial. Furthermore it is important to note that Rutherford did not agree with the choices of his trial counsel. Rutherford maintained his innocence throughout proceedings. Such a stance directly conflicts with his counsel's attempt to "humanize" Rutherford once he was found guilty instead of attempting to prove his innocence.

Medical testimony has shown that Rutherford suffers from a disorder, similar to post traumatic stress disorder, that may have affected his judgment on the day of Salamon's death. Arthur Dennis Rutherford should not be put to death considering the circumstances of his mental stability and shaky defense.

Floridacapitalcases.state.fl.us

Arthur Rutherford - Pleadings 2005 & 2006

Death Warrant – 11/29/05

U.S. Supreme Court:

Petition for Writ of Certiorari & Stay of Execution – 01/23/06
Denial of Petition for Writ of Certiorari – 01/31/06
Petition for Writ of Certiorari & Stay of Execution – 01/30/06
Denial of Petition for Writ of Certiorari – 01/31/06
Petition for Writ of Certiorari & Stay of Execution – 01/31/06
Stay Issued – 01/31/06
Petition Granted and Remanded to USCA – 06/21/06
Petition for Writ of Certiorari & Stay of Execution – 10/11/06
Petition for Writ of Certiorari & Stay of Execution – 10/16/06
Denial of Petition and Stay - 10/18/06

U.S. Court of Appeals – 11th Circuit

Complaint for Declaratory & Injunctive Relief Appeal – 01/28/06
Order Affirming Dismissal of Complaint for Declaratory & Injunctive Relief - 1/30/2006
Order Denying Application to File Successive Habeas & Stay of Execution - 1/30/2006
Order Denying Application to File Successive Habeas & Stay of Execution
(on remand) - 10/05/2006

U.S. District Court – Northern District:

Complaint for Declaratory & Injunctive Relief - 1/27/2006
Order Dismissing Complaint for Declaratory & Injunctive Relief - 1/28/2006

Circuit Court:

Motion to Vacate Judgements of Conviction and Sentence - 12/22/2005
~Amended~ Motion to Vacate Judgements of Conviction and Sentence - 12/27/2005
Order Denying Motion to Vacate Judgements of Conviction and Sentence - 1/5/2006
Motion to Vacate Judgments of Conviction and Sentence - 9/27/2006
Motion to Vacate Judgments of Conviction and Sentence Denied - 10/6/2006

Florida Supreme Court:

Briefing Schedule
Petition for Writ of Habeas Corpus - 11/28/2005
Response to Petition for Writ of Habeas Corpus - 12/20/2005
Reply to Response to Petition for Writ of Habeas Corpus - 12/22/2005
Opinion to Deny Habeas Corpus - 1/5/2006
Initial Brief - 1/10/2006
Answer Brief - 1/13/2006
Reply Brief - 1/17/2006
Opinion Affirming Denial of Motion to Vacate Judgments - 1/27/2006
Opinion Affirming Denial of Motion & Denying Habeas Petition - 10/12/2006
Motion to Vacate Judgments of Conviction and Sentence Appeal - 10/6/2006
Initial Brief - 10/9/2006
Answer Brief - 10/9/2006
Petition for Writ of Habeas Corpus - 10/9/2006
Response to Petition for Writ of Habeas Corpus - 10/9/2006

385 F.3d 1300

Arthur D. Rutherford, Petitioner-Appellant,
v.
James v. Crosby, Secretary for the Florida Department of Corrections,
Respondent-Appellee.

Docket number: 03-13188

Federal Circuits, 11th Cir.

September 21, 2004

Before CARNES, HULL and WILSON, Circuit Judges.

CARNES, Circuit Judge:

Arthur D. Rutherford told a friend that he planned to rob and murder a woman, bragging that he "wouldn't do the time but he was damn sure gonna do the crime." He carried out the first part of his boast when he brutally murdered a widow who lived alone; he could not pull off the second part, and since 1986 he has been doing the time for that crime on death row. The bottom line question in this appeal is whether the death sentence imposed upon Rutherford by a Florida court can be carried out without violating the Constitution. The answer is that it can be.

I.

A.

During the summer of 1985, Rutherford told his friend Harold Attaway that he planned to kill a woman and place her body in her bathtub to make her death look like an accident. Rutherford also told a long-time business associate, Sherman Pittman, that he was going to get money by forcing a woman to write him a check and then putting her in the bathtub. If the woman initially refused to make out the check, Rutherford explained that he would "get her by that arm and she would sign." It was then that Rutherford bragged that he would do the crime but not the time. About a week after making those statements, Rutherford again told Attaway about his homicidal plan. Rutherford also told his uncle that they could get easy money by knocking a woman Rutherford worked for in the head. Unfortunately, none of these three men took Rutherford seriously enough to report his plans to the authorities. If any of them had, Rutherford's murder of Stella Salamon a week later could have been prevented.

Mrs. Salamon, a 63-year-old widow originally from Australia, lived alone in Santa Rosa County, Florida with her two Pekingese dogs since her husband had died unexpectedly from a heart attack two years earlier. Other than a sister-in-law in Massachusetts, she had no family in this country.

Rutherford, who hired out to do odd jobs, installed sliding glass doors in the doorway leading from Mrs. Salamon's patio to her kitchen. Before long, Mrs. Salamon had those sliding glass doors replaced because they did not close and lock properly. She told her long-time friend and next-door neighbor Beverly Elkins that the unlocked doors made her nervous and that she wondered if Rutherford had intentionally made the doors so that she could not lock them. Mrs. Salamon also said that Rutherford kept coming to her house and acted as though he was "casing the joint."

It is unclear whether Mrs. Salamon notified Rutherford about the problems with the doors, but on the morning of August 21, 1985, Rutherford asked Attaway to come along with him when he went to repair the doors he had installed for Mrs. Salamon. When they got to her house, she told them she had those doors replaced. Attaway left to get money to give Mrs. Salamon as a refund on the doors. Rutherford stayed behind at Mrs. Salamon's house.

Around noon that day, Mrs. Salamon received a call from her friend Lois LaVaugh. Mrs. Salamon told Ms. LaVaugh that she was nervous because Rutherford had been at her house for "quite awhile." Ms. LaVaugh drove over there and found Rutherford sitting shirtless on Mrs. Salamon's porch. Rutherford left after Ms. LaVaugh arrived, and Mrs. Salamon told her that Rutherford "really has made me nervous" and had been sitting around on her couch. Apparently, Mrs. Salamon never got the refund that Attaway was supposed to bring, and Rutherford left the old glass doors in her garage.

At 7:00 the next morning, August 22, Rutherford and Attaway went to retrieve the old doors from Mrs. Salamon's garage. When they reached the house, Rutherford told Attaway that he had a gun in his van and said, "If I reach for that gun, you'll know I mean business." Attaway testified that this was the first time he really believed that Rutherford might actually hurt someone, yet he still did nothing about it. While they were loading the doors, Attaway overheard Mrs. Salamon say to Rutherford, "You can just forget about the money."

Later that morning, between 9:30 and 10:30 a.m., the manager of a local Sears store saw Mrs. Salamon when she came by to pick up a package. She also stopped at the Consolidated Package Store and made a purchase at 10:29 a.m., according to computer sales records. After that, Rutherford was the only other person known to have seen Mrs. Salamon alive, and she was not alive long, as Rutherford's actions on that day evidence.

Around noon, Rutherford went to see Mary Frances Heaton, a woman who sometimes baby-sat for his children and with whom he had once lived for a few months. He showed her one of Mrs. Salamon's checks and asked her to fill it out. Heaton cannot read or write other than to sign her name, so she called for her thirteen-year-old niece, Elizabeth. Rutherford promised Elizabeth money if she would fill out the check as instructed. Elizabeth filled out the check the way Rutherford told her to, making it payable to Heaton, but she did not sign anyone's name on it.

Rutherford told Heaton that he owed her money for work she had done for him and asked her to accompany him. He took Heaton to the Santa Rosa State Bank, gave her the check, and sent her into the bank to cash it. Because of the blank signature line, the teller refused to cash the check; Heaton returned to Rutherford's van and told him.

Rutherford responded by driving them to the nearby woods, where he took out a wallet, checkbook, and credit cards wrapped in a shirt, and threw the bundle into the trees. He also signed Mrs. Salamon's name onto the check, and then they went back to the bank. Outside the bank, Heaton watched as Rutherford endorsed Heaton's name on the check. In doing so Rutherford misspelled Heaton's name, scratched it out, and corrected it. Heaton re-entered the bank, and this time she successfully cashed the check and left with $2,000 in one hundred dollar bills. Rutherford gave Heaton $500 of those funds, and she in turn gave Elizabeth $5 for filling out the check.

Around 3:00 that afternoon, Rutherford visited his friend Johnny Perritt. He told Perritt that he had "bumped the old lady off" and showed him $1500 in cash. He wanted Perritt to hold $1400 of that amount for him. Rutherford said that he had hit the "old lady" in the head with a hammer, stripped her, and put her in the bathtub. Perritt refused to take the cash, and his mother later notified the police of Rutherford's claim to have committed a murder.

Earlier that day Mrs. Salamon had made plans to go walking that evening with Beverly Elkins and another neighbor. At 6:30 p.m. Ms. Elkins tried to contact Mrs. Salamon by phone but got no answer. She went to Mrs. Salamon's house, saw her car outside, and realized that she must still be at home. Ms. Elkins rang the front doorbell. After receiving no answer, she went around back and through the sliding glass doors saw that the television was on and that the normally calm dogs were jumping around excitedly. Ms. Elkins retrieved a spare key to the house, met up with the other neighbor who was to have gone walking with them that night, and the two women let themselves into Mrs. Salamon's home.

When the two women entered the kitchen through the carport door, they heard water running. They followed the sound to a little-used guest bathroom. There they were horrified to find Mrs. Salamon's naked body floating in the water that filled the tub to overflowing. Realizing that their friend was dead, the stunned women went to call for help. When walking through the house, Ms. Elkins noticed that Mrs. Salamon's eyeglasses were on the kitchen floor underneath the counter. The makings of a tomato sandwich were out on the counter. Mrs. Salamon had liked to eat tomato sandwiches for lunch.

When crime scene investigators arrived they found three fingerprints on the handle of the sliding door to the bathtub, one fingerprint on the tile wall of the tub, and a palm print on the window sill inside the tub with the fingers up and over the sill as though the person had grabbed it. All of those prints were later identified as Rutherford's. Blood was spattered on the bathroom walls and floor. According to an expert, the spatter pattern indicated that the blows occurred while Mrs. Salamon was sitting or kneeling on the bathroom floor.

Mrs. Salamon's naked body floated face-up in the water. She had been viciously beaten. There were bruises on her nose, chin, and mouth and a cut on the inside of her lip consistent with a hand being held forcefully over her face. Her lungs showed signs of manual asphyxiation, apparently from someone covering her nose and mouth. Her arms and knees were bruised and scraped, and her left arm was broken at the elbow. Of the three large wounds on her head, two were consistent with being struck with a blunt object or having her head slammed down. The other wound, a puncture that went all the way to the bone, appeared to be from a blow with a claw hammer or screwdriver. Her skull was fractured from one side to the other.

Severe as those injuries were, none of them were the actual cause of Mrs. Salamon's death. Although Rutherford had beaten and smothered her, she had water in the lungs. That shows the 63-year-old widow was still alive when Rutherford stripped off her clothes and placed her in the bathtub to drown.

B.

Early in 1986, Rutherford was tried for the first degree murder and armed robbery of Mrs. Salamon. He was represented by privately retained counsel. During the trial, Rutherford moved for a mistrial based on a discovery violation by the prosecution, but the court reserved ruling and the proceedings continued. The Santa Rosa County jury found Rutherford guilty and, by an eight-to-four vote, recommended a sentence of death. Rutherford then renewed his motion for a mistrial and the trial court granted it.

In the fall of 1986, after a change of venue to Walton County, Rutherford was retried. He was represented by two public defenders, William Treacy and John Gontarek. During the guilt stage of the trial, Rutherford took the stand and tried to explain his prints in the bathroom by claiming that Mrs. Salamon had asked him to realign the shower door when he was at her house on August 21 (the day before she was killed) because her nieces and nephews had knocked the door off its track. The state thereafter proved that Mrs. Salamon did not have any nieces or nephews, and according to Beverly Elkins, her close friend, no young children had visited Mrs. Salamon's house in the weeks prior to her death. Rutherford denied the testimony of the three witnesses that he had confided to them his plans to murder a woman. According to Rutherford, he never would have said such things "because I've got a good mother." He insisted that every one of the witnesses against him was lying.

On October 2, 1986, the jury found Rutherford guilty. During the penalty phase, the defense presented character evidence and testimony about Rutherford's childhood, his family, his service as a Marine during the Vietnam War, and his nervousness, nightmares, and night sweats since returning from Vietnam. The jury recommended death, this time by a seven-to-five vote. The trial court imposed a death sentence based on three aggravating circumstances: the murder was especially heinous, atrocious, and cruel; it was cold, calculated, and premeditated; and it was committed in the course of a felony (robbery) and for pecuniary gain.

The Florida Supreme Court affirmed Rutherford's conviction and death sentence, and the United States Supreme Court denied his petition for writ of certiorari. Rutherford v. State, 545 So.2d 853 (Fla.) ("Rutherford I"), cert. denied, 493 U.S. 945 , 110 S.Ct. 353, 107 L.Ed.2d 341 (1989).

Rutherford then began the long process of collateral review by filing a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In 1996, after conducting an evidentiary hearing on Rutherford's claims of ineffective assistance of trial counsel, the trial court denied the 3.580 motion as to all of his claims. The Supreme Court of Florida affirmed the denial. Rutherford v. State, 727 So.2d 216 (Fla.1998) ("Rutherford II").

Rutherford then petitioned the state trial court for a writ of habeas corpus, this time raising several claims of ineffective assistance of counsel by his two appellate attorneys during his direct appeal. His petition was denied, and the state supreme court affirmed the denial. Rutherford v. Moore, 774 So.2d 637 (Fla.2000) ("Rutherford III").

On April 2, 2001, Rutherford filed a 28 U.S.C. 2254 petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. That court denied the petition and refused to grant relief. It initially granted but then vacated a certificate of appealability. We then granted Rutherford a certificate of appealability on the following three issues: (1) whether his second trial violated the Double Jeopardy Clause of the Fifth Amendment; (2) whether relief should have been granted on his penalty phase ineffective assistance of counsel claim; and (3) whether his trial counsel had a conflict of interest that rendered their representation of him ineffective.

II.

Because the Florida court adjudicated Rutherford's claims on the merits, the Antiterrorism and Effective Death Penalty Act prevents a federal court from granting habeas relief unless the state court's decision either 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 in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e).

"A state court decision is `contrary to' clearly established federal law if either (1) the state court applied a rule that contradicts the governing law set forth by Supreme Court case law, or (2) when faced with materially indistinguishable facts, the state court arrived at a result different from that reached in a Supreme Court case." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). An objectively unreasonable application of federal law occurs when the state court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Id. The Supreme Court has held that § 2254(d)(1) imposes a "`highly deferential standard for evaluating state-court rulings,'" Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 2066 n. 7, 138 L.Ed.2d 481 (1997)), a standard "which demands that state-court decisions be given the benefit of the doubt," id. More than once the Supreme Court has instructed lower federal courts that the statute requires more than mere error, and more even than clear error, before federal habeas relief may be issued. E.g., Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 12, 157 L.Ed.2d 263 (2003) ("We may not grant respondent's habeas petition, however, if the state court simply erred...."); Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 366, 154 L.Ed.2d 263 (2002) (State court "decisions which are not `contrary to' clearly established Supreme Court law can be subjected to habeas relief only if they are not merely erroneous, but `an unreasonable application' of clearly established federal law...."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").

A.

The Double Jeopardy Clause of the Fifth Amendment provides that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V, Rutherford contends that his retrial put him in jeopardy a second time in violation of that constitutional guarantee.

During Rutherford's first trial, the state elicited testimony from two witnesses that Rutherford had told them he planned to kill a woman to get money.1 The two witnesses were listed on the state's witness list, but the prosecutor did not advise Rutherford's counsel of the nature of their testimony as required by the trial court's discovery order. Rutherford moved for a mistrial, the court reserved ruling, and the trial continued. After the jury found Rutherford guilty and recommended death, the court granted Rutherford's motion for a mistrial, finding that the "discovery violation was knowing, and therefore willful."

Where, as here, a mistrial was granted upon a defense motion, a retrial does not violate the Double Jeopardy Clause, unless the state "intended to `goad' the defendant into moving for a mistrial" during the first trial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). Retrial is barred only if the "conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant" into making the motion. Id. at 679, 102 S.Ct. at 2091. The prosecutor's intent is a question of fact. United States v. Vallejo, 297 F.3d 1154, 1162 (11th Cir.2002).

In response to this same double jeopardy claim, the Florida Supreme Court held on direct appeal that the retrial did not violate Rutherford's double jeopardy rights. Rutherford I, 545 So.2d at 855. That holding was based upon that court's finding that at the time the prosecutor failed to inform the defense of the two witnesses' testimony, the prosecutor's goal was to use the evidence to convict Rutherford, not cause a mistrial. Id. The Florida Supreme Court reasoned that the prosecutor had willfully taken the action that violated the discovery order out of a misapprehension of the extent of his discovery obligations, not with any intent to provoke the defense into moving for a mistrial. Id. Rutherford has not shown by clear and convincing evidence that the Florida Supreme Court's factual finding about the prosecutor's intent is unreasonable in light of the evidence in the state court record. See 28 U.S.C. 2254(d)(2). He contends that because the first trial court, in granting the mistrial, described the discovery violation as "knowing, and therefore willful," it must have meant that the prosecutor intended to force a mistrial. There are two problems with that argument. First, under Florida law a "willful" discovery violation is merely one that is not "inadvertent." See Richardson v. State, 246 So.2d 771, 775 (Fla.1971). There is no indication that when the Florida trial court judge called the discovery violation "willful," he was using that term in a way different from its meaning under Florida law. The judge did not say that the prosecutor had intended to provoke a mistrial.

Second, even if the trial judge had said that, the Florida Supreme Court could not have been clearer in finding to the contrary. To the extent of any inconsistency in fact findings or other matters, the Florida Supreme Court is supreme over that state's trial courts; to the extent of any inconsistency its findings are the ones we take to be those of the state courts. The finding that the prosecutor did not intend to goad the defense into moving for a mistrial is presumed correct, see 28 U.S.C. 2254(e)(1), and Rutherford has not carried his burden of rebutting that presumption by clear and convincing evidence, see Id. Nor has Rutherford demonstrated an unreasonable application of clearly established federal law as determined by the Supreme Court. Given the factual finding about the prosecutor's intent, the Florida Supreme Court's conclusion that there was no violation of the Double Jeopardy Clause was required by the Kennedy decision. See Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089.2

B.

Rutherford contends that his two trial counsel rendered ineffective assistance during the penalty phase of his second trial by failing to: adequately investigate and present evidence about Rutherford's alcoholism, childhood, marital difficulties, and experiences in Vietnam; obtain and present expert mitigating evidence about his mental health; and object to the testimony of three witnesses who repeated statements that had been made by the victim, Mrs. Salamon, about Rutherford.

The Supreme Court clearly established the federal law governing ineffective assistance claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rutherford's burden is two-fold. First, he must demonstrate that his counsel's performance was "outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. Second, he must establish a reasonable probability that, but for his counsel's deficient performance, the result of the proceedings would have been different. Id. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Both showings are necessary for any relief; failure to establish either is fatal and makes it unnecessary to consider the other. Id. at 697, 104 S.Ct. at 2069.

In assessing Rutherford's claim that his trial counsel were ineffective we must keep in mind that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. In addition to the deference to counsel's performance mandated by Strickland, the AEDPA adds another layer of deference ? this one to a state court's decision ? when we are considering whether to grant federal habeas relief from a state court's decision. Woodford, 537 U.S. at 24, 123 S.Ct. at 360 (section 2254(d)(1) imposes a "highly deferential standard for evaluating state-court rulings") (internal marks and citation omitted). Rutherford must do more than satisfy the Strickland standard. He must also show that in rejecting his ineffective assistance of counsel claim the state court "applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002).

1.

During the penalty stage of Rutherford's second trial, his trial counsel presented testimony from his father, his sister, his ex-wife (with whom he had reconciled and whom he was planning to remarry), his sister's father-in-law, and Rutherford himself. Counsel's penalty stage strategy was to paint Rutherford, who continued to insist that he was innocent, as "a good fellow, [a] good father, a good citizen, [a] loyal Marine, ... [a] loyal church member;" in short, to emphasize his "goodness."

Rutherford, his father, and his sister all testified about Rutherford's childhood. They told the jury about Rutherford living on a farm with his parents and seven siblings, and how the children had to do chores and work around the farm. They brought out that Rutherford's father sometimes worked as a truck driver and was away from home. The jury heard that after Rutherford's father temporarily abandoned the family, Rutherford and his older brother kept the farm going while their mother took in washing and ironing to make ends meet. As Rutherford grew up, he and his father had what his sister described as "a few spats," but overall "they got along fine." Rutherford's sister also testified that he got along with his siblings and she characterized their parents as loving. During his own testimony Rutherford acknowledged that he did not get along with one of his brothers, but he agreed with his sister that he had good relationships with his six other siblings and with his parents.

Rutherford's ex-wife told the jury about their family. During their fourteen-year marriage, they had four children. They divorced, and she left the children with him. They reconciled approximately a year before Rutherford was arrested and had planned to remarry. Their fifth child was born while Rutherford was in jail awaiting trial. His ex-wife described Rutherford as a caring and involved father, a loving, helpful, and attentive husband, and an unselfish person.

Rutherford testified about his military service. He said that at the age of nineteen he had volunteered for the Marines during the Vietnam War. He had received medals for marksmanship training. According to Rutherford, he had spent thirteen months in the demilitarized zone, during which time he slept in a foxhole nightly, heard shots and bombs daily, and saw men die regularly.3 He described his combat experience to the jury as "hell," but emphasized that he stayed for his full tour of duty because "I ain't no quitter." Rutherford remained in the reserves for four additional years and received some medals and ribbons for his service. When one of his counsel asked Rutherford to go into more detail about his military experiences for the judge and jury, Rutherford refused, responding: "That's enough of that. I don't care to talk about that."

The four family members who testified all described how Rutherford returned from Vietnam nervous and jittery. His sister's father-in-law said that Rutherford would pace the floor, and his ex-wife said that for the first three years Rutherford suffered from nightmares and night sweats. She and Rutherford both testified that he had been exposed to the chemical Agent Orange, and they believed that exposure had harmed their children. The oldest child was born with facial deformities and a skin disease, another child suffers from a blood disease, and the youngest has heart murmurs and seizures. Rutherford contacted the Veterans Administration about getting tested for Agent Orange exposure to qualify his children for benefits, but he had not yet been tested when he went to jail.

On the stand during the penalty phase, Rutherford remained defiant and continued to protest his innocence. When the prosecutor asked him why he had robbed Mrs. Salamon, Rutherford responded: "I did not steal [the check], why didn't you steal it?" He said that until the jury convicted him, "I thought that I had a sensible jury," and he went on to accuse the prosecution of framing him and hiding evidence. Rutherford ended what was supposed to be his statement to the jury about why he should not die by threatening the prosecutor: "You are going to get it." Because the courtroom bailiff and deputies were concerned over Rutherford's behavior and because of his threat to the prosecutor, he was shackled during the closing arguments of the penalty phase.

After the jury returned its verdict recommending a death sentence, Rutherford's attorneys presented to the judge two mental competency evaluations that had been produced before the first trial. Rutherford had insisted that his attorneys not offer any mental health evidence, but counsel presented the competency reports to the judge anyway. The jury did not see them.

One competency evaluation, performed by Dr. Barbara Medzerian, reported that Rutherford said he was "living in hell" since returning from Vietnam, had nightmares and night sweats, was depressed, and was an alcoholic. That report also detailed past episodes of violence, including an episode where Rutherford struck at his father and broke his hand hitting the wall, and claimed afterward to have no memory of the incident. Another time, Rutherford beat up one of his brothers, was arrested for assault and battery, and spent five days in jail and one year on probation. The report said that Rutherford described his experience in court on that charge as "a joke." In her report, Dr. Medzerian explained that these violent episodes were consistent with Rutherford's drinking problem. In her opinion, Rutherford suffered symptoms of an anxiety disorder related to his combat experiences, exhibited anti-social personality features, and suffered from alcoholism. Even so, he was, in her view, mentally competent to stand trial.

The other pre-trial evaluation was conducted by Dr. Philip Phillips, and it reported that Rutherford had trouble sleeping, was nervous and depressed, and was suspicious of others. It also discussed his history of alcoholism and his previous arrest, and reported that he had received court-ordered counseling for his drinking problem, presumably after the assault against his brother.

2.

The Florida courts rejected Rutherford's contention that his trial counsel was ineffective for failing to investigate and use additional mitigating evidence about his childhood, Vietnam experience, alcoholism, and troubled marriage. The Florida Supreme Court characterized the evidence of alleged childhood abuse that Rutherford presented during the state collateral proceeding as inconclusive, Rutherford II, 727 So.2d at 225; it emphasized that Rutherford had hindered his attorneys' investigation into both his childhood and his Vietnam experiences; and it found that his attorneys had strategically decided not to present any evidence to the jury that would conflict with their penalty stage theme that Rutherford was basically a good person. Id. at 224-25. Much of the "additional" evidence introduced during the state collateral hearing, the Florida Supreme Court noted, was cumulative of that which had been put in during the penalty phase of the trial. Id. In any event, the Court concluded, even if trial counsel's performance was somehow deficient, Rutherford was not prejudiced. Id. at 225-26.

We need not reach the question of whether that alternative basis for the state court decision, the lack of prejudice, passes muster under § 2254(d). It is unnecessary to do so, because we conclude the holding that counsel's performance in this regard was not constitutionally deficient is not objectively unreasonable. We will address in turn Rutherford's contentions of inadequate investigation and presentation of mitigating evidence as they relate to his problem with alcohol, his allegedly abusive childhood, his marriage, and his Vietnam experience.

About Rutherford's problem with alcohol, his trial counsel were informed. The two pre-trial competency reports, with which counsel were familiar, covered Rutherford's drinking problem. One of those reports, Dr. Medzerian's, explained that Rutherford's violent outbursts were consistent with alcoholism. Both reports indicated that Rutherford had received counseling for his alcoholism. Counsel knew about the problem but made a strategic decision not to present any evidence of it to the jury or to investigate it any further.

As the Florida Supreme Court explained, Rutherford's trial counsel did not need to investigate his alcoholism any further to understand its implications and make a reasonable decision about it. Any evidence of alcoholism would have opened the door to the jury hearing evidence about Rutherford's past violence, thereby undermining the plan to present Rutherford as a good, hard-working family man. There is nothing unreasonable about the Florida Supreme Court's findings or legal conclusions in regard to this subpart of the ineffective assistance of counsel issue.

About evidence of Rutherford's childhood, one of Rutherford's brothers, William, testified at the 3.850 hearing that their father beat their mother and got "pretty rough" on the children. Rutherford contends that his attorneys were ineffective for failing to interview this brother and present his testimony at the penalty phase.

The Florida Supreme Court found that William's testimony was "not conclusive of an abusive situation," Rutherford II, 727 So.2d at 225, which is to say that testimony did not prove Rutherford had been abused as a child. Although Rutherford now tries to characterize his childhood as cruel and terrible, the state court finding to the contrary is presumed to be correct, see § 2254(e)(1), and he has not carried his burden of rebutting that presumption by clear and convincing evidence.

At trial, Rutherford's sister testified that Rutherford had "a few spats" with his father but otherwise got along with his parents. She characterized their parents as loving. At the 3.850 hearing, Rutherford's brother Earl testified that he never knew of his parents fighting when the siblings were young, and that all the children had grown up with good relationships with their parents. He summarized things by saying: "we had some good bringing up." Rutherford's mother also testified at the 3.850 hearing. Although she talked about the family's financial struggles and Rutherford's father's drinking, she never indicated that he was abusive. Moreover, Rutherford's own penalty phase testimony described the generally good relationships that had existed within his family, and he never mentioned abuse.

To the extent there were any shortcomings in the investigation of Rutherford's family life, he is responsible for them. He did his best to hinder his attorneys' efforts. Counsel and their investigators asked Rutherford for the names of anyone they could interview and then talked with the people he named, even if Rutherford insisted that the person was not worth contacting. Also, in accordance with standard practice, when Rutherford's case was assigned to the public defender's office an assistant interviewed him to get the names of his family members. Rutherford failed to disclose all of them.

When one of the attorneys and an investigator tried to visit his parents' home to interview them, they could not locate the address Rutherford had given them. When the attorneys asked him about it, he replied: "I told my mom and dad and wife not to come and talk to you folks." That was confirmed when counsel and their investigators finally located Rutherford's parents. They spent over two hours trying to interview the parents, but had difficulty getting them to cooperate. Exasperated, the lead investigator on the case finally told Rutherford's father: "We are trying to save your son's life." The elder Rutherford became angry and snapped at the investigator. That effectively ended the interview. Rutherford had also instructed his family members not to go to his attorneys' offices to talk to them.

About his marital difficulties, Rutherford's ex-wife testified at the penalty stage concerning their divorce, their reconciliation, and Rutherford's good parenting of the children. Rutherford himself testified about his marriage and family life and that he cared for the children when his wife left. Witnesses at the 3.850 hearing did offer greater detail about the couple's divorce; for example, they told about Rutherford's having traveled to California to see his ex-wife.

There is no indication that Rutherford's trial counsel unreasonably failed to investigate his marital history and difficulties. On the contrary, counsel interviewed the two people most knowledgeable about the marriage, Rutherford and his ex-wife, and called each of them as penalty phase witnesses. The Florida Supreme Court held that counsel knew about Rutherford's marital history, and that the evidence on the subject presented at the 3.850 hearing was essentially cumulative. Rutherford II, 727 So.2d at 224-25. That decision easily passes review under § 2254(d).

About the investigation into his military experience, again Rutherford did what he could to impede his counsels' best efforts and brought about any shortcomings in that part of the investigation. When his attorneys repeatedly tried to interview him about Vietnam, Rutherford refused to answer their questions. Counsel prepared the necessary paperwork to obtain copies of his military records, but Rutherford adamantly refused to sign the release. They asked his family to provide any information or records they had about Rutherford's time in the military, but the family continued their pattern of non-cooperation, a pattern that Rutherford had set into motion. One of the two counsel testified that he remembers "chewing [Rutherford] out unmercifully ... telling him things like ... `This is your life at stake and we are the people that are going to do something or not be able to do something.'" It did no good. Counsel's pleas went unheeded.

Nonetheless, while Rutherford was on the stand testifying during the penalty phase, counsel did ask him about his Vietnam experiences, and for the first time Rutherford answered the questions. As counsel recounted it: "I about fell off my chair because these were the very questions that he refused to answer to me in the months of preparation.... And, of course, the old rule of [d]o not ask the question unless you know the answer, I threw it out and went with it full bore best I could." Counsel's full-bore efforts were successful to some extent. Under his questioning, Rutherford described to the jury how he had slept in a foxhole, heard shots and bombs every day, been shot at, and seen a lot of men die. He said he had spent thirteen months in combat. He described it as "hell."

Even then, however, Rutherford again blocked his counsel's efforts to present the full details of his service in Vietnam and his military career. After revealing for the jury far more about Vietnam than he had previously told his own attorneys, Rutherford responded to one of his counsel's follow-up questions with: "That's enough of that. I don't care to talk about that." And he didn't talk about it any more.

At the 3.850 hearing, Rutherford's current counsel presented an expert to analyze the history of Rutherford's unit during the dates he was in Vietnam and thereby fill in the details of what Rutherford had testified to during his penalty stage. The expert gave his opinion about the conditions in which Rutherford must have lived and fought. Rutherford contends that his trial counsel should have discovered and presented similar expert opinion information at the penalty stage and even should have gone so far as to obtain a court order to force the military to turn over Rutherford's records without his permission.

However, under Strickland the duty is to investigate to a reasonable extent, 466 U.S. at 691, 104 S.Ct. at 2066, and that duty does not include a requirement to disregard a mentally competent client's sincere and specific instructions about an area of defense and to obtain a court order in defiance of his wishes. See Gilreath v. Head, 234 F.3d 547, 550 n. 10 (11th Cir.2000) ("We readily conclude that trial counsel ? by relying on Petitioner's instruction not to present mitigating mental health and alcohol abuse evidence ? did not perform in an unreasonable manner."); Johnston v. Singletary, 162 F.3d 630, 642 (11th Cir.1998) ("the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions") (internal marks and citation omitted); Hance v. Zant, 981 F.2d 1180, 1183-84 (11th Cir.1993) (counsel's agreeing to capital defendant's wishes not to contact his family did not amount to ineffective assistance under the circumstances); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986) ("a defendant's decision communicated to his counsel as to who he wants to leave out of the investigation, while not negating the duty to investigate, does limit the scope of the investigation"); see also Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983) ("In light of Foster's adamance, Mayo had an ethical obligation to comply with his client's wishes and was thus unable to present an insanity defense."). We agree with the Florida Supreme Court's decision about this part of Rutherford's ineffective assistance claim, including its observation that "Rutherford's uncooperativeness at trial belies his present claim that his trial counsel was deficient for not investigating and presenting mitigation regarding his harsh childhood and military history," Rutherford II, 727 So.2d at 225.

For all of these reasons, the Florida Supreme Court's decision rejecting Rutherford's claim that his trial counsel rendered ineffective assistance by not investigating more thoroughly his alcoholism, childhood, marriage, and military experience is not objectively unreasonable.

3.

The Florida courts rejected Rutherford's contention that his trial counsel were ineffective for failing to investigate and use the mental health mitigating circumstance evidence that his new counsel presented at the state 3.850 evidentiary hearing. At that hearing, Rutherford presented testimony from two psychologists who had studied his military and medical records, interviewed him, and conducted extensive psychological tests. Dr. James Larson and Dr. G. Robert Baker both diagnosed Rutherford as suffering from post-traumatic stress disorder and alcoholism stemming from his experiences in Vietnam. They also testified that Rutherford had undergone counseling at a clinic after he assaulted his brother, and he had spoken with a Veterans Administration counselor, as well. Further, Dr. Larson opined that at the time of Mrs. Salamon's murder, Rutherford was under extreme emotional stress due to the "stressors" of his wife returning and his drinking.

As a preliminary matter, we note that Dr. Larson and Dr. Baker had the benefit of far greater cooperation and, as a result, access to more information than Rutherford's trial counsel had. We have already discussed how uncooperative, and indeed obstructive, Rutherford was with the two attorneys who had the unenviable task of defending him. In sharp contrast, by the time Rutherford got to the state collateral stage of the proceedings he had apparently become a model of cooperation, taking the necessary steps to insure that Dr. Larson and Dr. Baker received his military records and speaking to them extensively about his time in Vietnam.

After reviewing the additional evidence offered at the 3.850 hearing, the Florida trial court held, and state supreme court agreed, that Rutherford's trial counsel were not ineffective for failing to obtain a mental health expert specifically to develop evidence in mitigation. See Rutherford II, 727 So.2d at 218-19. The state courts reasoned that Rutherford's attorneys were aware of possible additional mental health evidence through the pre-trial competency reports they had received and their knowledge that Rutherford had received some counseling, but that counsel decided that it was unnecessary to obtain and present more detailed mental health evidence. That decision, the state courts concluded, was a sensible one in light of the strategy to "humanize" Rutherford and portray him as a hard-working, family-oriented "Boy Scout" type. Id. at 222.

In addition, as the Florida Supreme Court explained, some mental health evidence was presented at the penalty phase through lay testimony and, for the judge, through the competency evaluations. In the alternative, the state courts held that it was not reasonably probable that the jury's recommendation or the judge's sentence would have been different had they heard more detailed mental health mitigation. Id. at 225-26. Because it is clear to us that the prejudice prong holding is not objectively unreasonable, we need not address the performance prong holding.

The Florida Supreme Court applied the proper prejudice analysis. It added the mental health mitigating evidence presented at the Rule 3.850 hearing to all of the mitigating evidence that was presented at the penalty stage, and then viewed the resulting total against all of the aggravating circumstance evidence in order to determine whether the additional evidence created a reasonable probability of a different result. Rutherford II, 727 So.2d at 225-26; see Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000) (the court should "evaluate the totality of the available mitigation evidence ? both that adduced at trial, and the evidence adduced in the habeas proceeding ? in reweighing it against the evidence in aggravation").

Having conducted the correct analysis, the Florida Supreme Court concluded that Rutherford was not prejudiced, a conclusion that was not objectively unreasonable. First, this is not a case where the jury heard no evidence about the defendant's mental and emotional state. It did hear evidence about that through the testimony of five lay witnesses, including Rutherford himself. All of these witnesses testified about the effects Vietnam had on Rutherford and described his symptoms. The jury heard that Rutherford suffered as a result of serving in Vietnam. Witnesses described how he came back from there nervous and jittery, and his ex-wife testified about his nightmares and night sweats. Evidence was presented about the divorce Rutherford had gone through. There was also evidence before the jury of several other possible non-statutory mitigating factors.

In other words, this is not a situation like the one in Williams v. Taylor or Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where the jury heard very little mitigating circumstance evidence and heard none at all about the type of mitigation presented during the post-conviction proceedings. For example, in Wiggins the evidence the jury did not hear was the defendant's long history of severe physical and sexual abuse at the hands of his alcoholic mother and various foster parents. That abuse included going for days without food, his hospitalization for physical injury, and repeated rapes and gang-rapes. Wiggins, 123 S.Ct. at 2533. The abuse occurred throughout his childhood, teenage years, and even into early adulthood and was documented in medical, school, and social services records. Id. The Supreme Court aptly described it as the defendant's "excruciating life history." 123 S.Ct. at 2543. All that was offered in mitigation in Wiggins was that the defendant had no prior convictions. 123 S.Ct. at 2533; see also Williams, 529 U.S. at 395-98, 120 S.Ct. at 1514-15 (counsel failed to introduce "the comparatively voluminous amount of evidence" in his client's favor, including evidence of a "nightmarish childhood," offering instead only a "sole argument in mitigation"). This case is not Wiggins or Williams.

A second reason that it was not objectively unreasonable for the Florida Supreme Court to decide that Rutherford had not established prejudice is that the expert testimony he contends should have been presented would have come with a price. By contrast, in Wiggins the Court explained that presenting the evidence of abuse would not be "counterproductive" or inconsistent with the other evidence being presented. See 123 S.Ct. at 2537, 2543.

Rutherford's attorneys presented him to the jury as a hard-working, good family man who had served his country and suffered as a result. They put forward witnesses who testified to that effect. Although expert testimony about his mental health probably would have lent weight to the suffering aspect of the portrayal, it also would have placed damaging information before the jury. Although there was testimony at the penalty stage about Rutherford having "a few spats" with his father, his violent episodes did not come out. The jury never heard evidence that Rutherford had a history of abusing alcohol or that he had two violent episodes, one of which led to a criminal charge which Rutherford denigrated as "a joke."

The reports of Dr. Larson and Dr. Baker, the two psychologists Rutherford presents as exemplars of the experts who should have been presented at the penalty stage, contain repeated references to Rutherford's abuse of alcohol. Dr. Larson also testified in the Rule 3.850 hearing that Rutherford had an "exaggerated" temper and was inclined to be "irritable" and "angry." He referred to Rutherford's prior criminal charge. Dr. Baker also discussed Rutherford's abuse of alcohol at some length in his testimony, and he said that Rutherford was not able to relate to and care for people. Putting experts like Dr. Larson or Dr. Baker on the stand during the penalty phase would have opened up all of these topics and could well have been more harmful than helpful to Rutherford.

A third reason why the Florida Supreme Court's decision that Rutherford had not established prejudice is not objectively unreasonable is that this is not a case where the weight of the aggravating circumstances or the evidence supporting them was weak. The jury heard witnesses describe how Rutherford planned the brutal murder of a helpless widow in advance and bragged about how he would get away with it, saying he "wouldn't do the time but he was damn sure gonna do the crime." They heard undisputed evidence about the savage injuries Rutherford inflicted on Mrs. Salamon, brutally beating her before finally stripping her naked and drowning her in her own bathtub. They heard that he stole Mrs. Salamon's checkbook and manipulated an illiterate woman and her young niece into helping him get money out of Mrs. Salamon's account. There is no reasonable probability that the jury, if only it had heard the testimony of the two psychologists, would have concluded that this long-planned, deliberate, and cruel murder for monetary gain was mitigated to any appreciable extent by the fact that Rutherford was, as one expert described it, under the influence of "stressors" because of his drinking and getting back together with his wife.

This is not a case like Williams, where the state established only one aggravating circumstance and the defense failed to present available mitigating evidence that both rebutted the sole aggravating factor and added mitigating factors. See 529 U.S. at 370-71, 120 S.Ct. at 1500-01. This is, instead, a case in which the state courts' determination that the petitioner had failed to establish Strickland-type prejudice from the failure to present certain mitigating circumstance evidence is not objectively unreasonable.

4.

We turn now to Rutherford's contention that his trial counsel was ineffective for failing to object to portions of the penalty phase testimony of Lois LaVaugh, Richard LaVaugh, and Beverly Elkins. Specifically, Rutherford claims that his counsel should have raised hearsay objections to: Lois LaVaugh's testimony that on the day before the murder Mrs. Salamon said Rutherford stayed around her house and made her nervous; Richard LaVaugh's testimony that Mrs. Salamon said she was scared of Rutherford; and Beverly Elkins' testimony that Mrs. Salamon said she was frightened of Rutherford, that he hung around her house, and that she worried that he had intentionally installed her glass doors so that they would not lock. The prejudice argument that Rutherford makes is that, because his attorneys did not object to this hearsay evidence, the trial court relied upon it in finding the aggravating factor that the crime was cold, calculated, and premeditated ? one of the three aggravating circumstances found in the case.

The Florida Supreme Court concluded that even without this testimony the trial court would have found the cold, calculated, and premeditated aggravating circumstance; therefore, there was no prejudice from the failure to object. In reaching that conclusion, the Court considered the totality of the evidence supporting the existence of the aggravating circumstance and noted that in affirming the existence of it on direct appeal, the Court itself had not even referred to the testimony in question. Rutherford II, 727 So.2d at 221. Not only is the Florida Supreme Court's decision on this point objectively reasonable, in light of the overwhelmingly deliberate and brutal aspects of the murder, no other conclusion is possible.

C.

Finally, we turn to Rutherford's claim that his trial counsel was ineffective for revealing to the judge that Rutherford had rejected a plea offer. While the jury deliberated Rutherford's sentence, one of his attorneys told the court: "I did inform the defendant of the possibility of if [sic] he did enter a plea in this case that he would receive, in my opinion, a life sentence from Your Honor and a recommendation of a life sentence from the State Attorney's Office...." Rutherford contends that his attorneys revealed this information in order to protect themselves from an ineffective assistance claim, thereby placing their own interests above his and making it possible for the judge to consider Rutherford's refusal to enter a guilty plea when imposing sentence. (There is no indication that the judge actually did so.)

Rutherford argued in his state 3.850 motion that his trial counsel was ineffective because of the alleged conflict of interest. The state trial court held the claim to be procedurally barred because it could have been raised on direct appeal but was not. The Florida Supreme Court affirmed. Rutherford II, 727 So.2d at 218. The district court held that the claim was procedurally barred from federal habeas review. We agree.4

Before a state prisoner may bring a claim in a habeas petition in federal court, he must "invok[e] one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). When a state prisoner is procedurally barred from raising an issue in his state collateral attack, he may not raise the issue in a federal habeas petition unless he can show both cause and prejudice, or fit within the narrow miscarriage of justice exception. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000); Coleman v. Thompson, 501 U.S. 722 , 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); see also Thomas v. Crosby, 371 F.3d 782, 814 n. 17 (11th Cir.2004). Rutherford has not shown either cause or prejudice for his failure to raise the trial level conflict of interest ineffective assistance claim, and no miscarriage of justice will result from failing to decide this claim on the merits.

III.

The district court's denial of the petition for a writ of habeas corpus is

AFFIRMED.

In deciding Rutherford's federal habeas petition, the district court concluded that the ineffective assistance of trial counsel claim was procedurally barred, but it went on to address the merits of the ineffective assistance of appellate counsel claim. However, Rutherford did not raise the appellate level ineffectiveness claim in his federal habeas petition. Instead, in the petition he reverted back to his original claim that a conflict of interest had rendered trial counsel ineffective. That is the claim he has argued before us, and it is the one we decide.

*****

WILSON, Circuit Judge, concurring:

I concur in the result of the majority's opinion, with the following additional observation. The Supreme Court instructs that "[i]n assessing prejudice in an ineffective assistance of counsel claim, we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003) (emphasis added). The mental health expert mitigation evidence could have provided the jury some context into which to put this senseless crime. In addition, it could have bolstered the lay testimony about the effects of Vietnam on Rutherford. Importantly, the jury vote at the penalty phase was far from unanimous. Given the closeness of the jury's vote to recommend a death sentence (7-5), I conclude that there exists a reasonable probability that the result of the proceedings would have been different if trial counsel had presented the mental health evidence. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

However, to succeed on a claim of ineffective assistance of counsel, Rutherford must also show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. The state court determined that counsel made a reasonable strategic decision not to introduce the mental health evidence. Rutherford v. State, 727 So.2d 216, 222-24 (Fla.1998). I conclude that this decision was not "objectively unreasonable" as that term was elucidated in Wiggins, 123 S.Ct. at 2534-35, Bell v. Cone, 535 U.S. 685, 689, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002), and Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1524-25, 146 L.Ed.2d 389 (2000). Accordingly, I concur with the result of the majority's opinion and would affirm the district court's denial of Rutherford's petition for a writ of habeas corpus.

No. 06-10783

Docket number: 06-00050

October 6, 2006

On Appeal from the United States District Court for the Northern District of Florida

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before CARNES, HULL and WILSON, Circuit Judges.

CARNES, Circuit Judge:

The Supreme Court vacated our prior decision, Rutherford v. Crosby (Rutherford I), 438 F.3d 1087 (11th Cir. 2006), and remanded this case to us for further consideration in light of that Court's decision in Hill v. McDonough, 547 U.S., 126 S. Ct. 2096 (2006). See Rutherford v. McDonough, 126 S. Ct. 2915 (2006).

A.

Twenty years ago this month Arthur Rutherford was convicted and sentenced to death for the brutal murder of Stella Salmon, a sixty-three year old widow. Rutherford v. Crosby, 385 F.3d 1300, 1302­05 (11th Cir. 2004). During the past two decades the validity of his conviction and sentence has been litigated and upheld throughout the state and federal court systems. See id. at 1306. On November 29, 2005, the Governor of Florida signed a death warrant setting Rutherford's execution for the period of January 30 ­ February 6, 2006. The warrant recited that the warden had chosen 6:00 p.m on Tuesday, January 31, 2006 as the time and date of execution.

At 7:00 p.m. on Friday, January 27, 2006 Rutherford filed the underlying 42 U.S.C. 1983 lawsuit to challenge the three-drug protocol Florida has been using since 2000 to carry out executions by lethal injection. Rutherford's lawsuit came two months after his execution date had been set, and just two week days before his scheduled execution. See Rutherford I, 438 F.3d at 1090 n.2. The district court dismissed Rutherford's complaint and denied his motion for stay of execution on January 28. Two days later, we affirmed the district court's decision and denied Rutherford's motion for a stay. Id. at 1089­92.1 At 5:40 p.m. the next day, which was the scheduled date of the execution, the Supreme Court granted a stay of execution pending disposition of the certiorari petition Rutherford had filed earlier that day. Rutherford v. Crosby, 546 U.S., 126 S.

Ct. 1191 (2006).

On June 19, 2006 the Supreme Court granted certiorari, vacated our Rutherford I decision, and remanded for further consideration in light of Hill v. McDonough, 126 S. Ct. 2096 (2006), which had been decided in the interim.

Rutherford v. McDonough, 126 S. Ct. 2915 (2006). By letter dated that same day, the Supreme Court Clerk formally notified our Clerk of the order and of the fact that pursuant to Supreme Court Rule 45 the Supreme Court's judgment or mandate would not issue in the matter for at least twenty-five more days, and that issuance of it would be further delayed if a timely petition for rehearing were filed in the Supreme Court. Nonetheless, because we wanted to move along our consideration of the matter, without waiting for the official judgment or mandate we instructed the attorneys on June 30 to supplementally brief the question of what this Court should do in light of the Hill decision when this case officially got back before us. The schedule we set provided that Rutherford's opening brief would be due within 20 days from June 30, the date of our instructions; the State's answer brief would be due within 14 days from receipt of Rutherford's; and he then would have 7 days from receipt of the State's brief to file a reply. Rutherford filed his opening brief on the last possible day under the schedule; the State filed its answer brief several days early; and Rutherford did not file his reply brief when it was due.

Instead, the day Rutherford's reply brief was due we received a motion for a thirty-day extension. One of the reasons his attorney gave for needing the extension was that she had taken an eight-day vacation in the midst of the briefing schedule. We denied her request for a 30-day extension but gave her one of twenty-three days, which resulted in her having a total of thirty days from receipt of the State's brief to file Rutherford's reply brief. Rutherford's attorney waited until the last day of that extended period to file the brief, which resulted in completion of the supplemental briefing being delayed until September 1. (In the meantime, we had received the judgment or mandate of the Supreme Court on July 24.) On September 22, 2006, the Governor of the State of Florida rescheduled Rutherford's execution for the period from October 16 through October 23, 2006.

In doing so the Governor noted that the warden had chosen October 18 at 6:00 p.m. as the specific date and time for the execution. No one informed this Court or its Clerk of that development until September 25, which is the date that Rutherford filed a mandamus petition in the Supreme Court and provided our Clerk's Office with a copy of it. The mandamus petition asked the Supreme Court to expeditiously order this Court to remand this case to the district court. The request came despite the fact that Rutherford had never asked this Court to expedite its consideration of the case and his own attorney had delayed the completion of briefing and submission of the case to us for decision. Among other things, the mandamus petition she filed accuses this Court of "sit[ting] upon a capital case remanded to it," and charges that "[t]he Eleventh Circuit and the Florida Attorney General have been the architects of the trap being set to ensnare Mr. Rutherford." The mandamus petition does not disclose that the attorney who penned those allegations took a vacation during the briefing schedule, leading to a delay in submission of the case to us for decision.

In any event, the case having been submitted to us for decision, we turn to a discussion of the issues presented by the Supreme Court's remand. The district court dismissed on two grounds Rutherford's 42U.S.C. § 1983 lawsuit challenging Florida's three-drug lethal injection protocol. One ground was that our circuit law at the time required that this type of challenge be brought in a 28U.S.C. § 2254 proceeding and comply with the restrictions on second or successive habeas petitions set out in § 2244(b). See Hill v. Crosby, 437 F.3d 1084 (11th Cir. 2006), rev'd sub nom., Hill v. McDonough, 126 S. Ct. 2096 (2006); Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004). Because Rutherford could not meet the requirements for filing a second or successive habeas petition, we affirmed the district court's judgment dismissing his action on that basis. Rutherford I, 438 F.3d at 1089. That basis for our decision is no longer valid in light of the Supreme Court's Hill decision.

There was, however, a second ground for the dismissal. The district court also dismissed Rutherford's lawsuit on the alternative ground that he could and should have brought it earlier. Rutherford I, at 1101­03 (appendix containing district court opinion). After discussing that ground at some length, we affirmed on the basis of it, as well. Id. at 1090­93. We will not repeat here all that we said there. Suffice it to say that, as the district court found, Rutherford did unnecessarily delay bringing this claim. He deliberately waited until the last few days before his execution to file what he could have filed many months, if not years, earlier. He could have brought the claim in plenty of time to permit full consideration of it without any need to stay the execution order that was finally entered in the case. Id.

We explained in our prior opinion that because of the alternative holding Rutherford would lose even if the Supreme Court in Hill knocked the first prop out of our decision, which is exactly what it did. Rutherford I, at 1093 ("[E]ven if the Supreme Court decides in the Hill case to overturn our Hill and Robinson decisions and holds that this type of claim is cognizable in a § 1983 proceeding, Rutherford still will not be entitled to any equitable relief because of the district court's independently adequate alternative ground for dismissing his complaint, which we are affirming in this opinion. Neither of the two questions on which certiorari was granted in Hill touch on that alternative ground."). We are as convinced of that conclusion now as we were then, if not more so.

Nothing in the Supreme Court's Hill opinion conflicts with our conclusion about how the equitable principles play out in this case, and there is much in that opinion to support our conclusion. Part III of the Hill opinion recognizes that "[b]oth the State and the victims of crime have an important interest in the timely enforcement of a sentence," and the opinion states that nothing about the Hill decision should be read to diminish that interest or prevent federal courts from protecting it. 126 S. Ct. at 2104. The Supreme Court reiterated in Hill what it said in Nelson v. Campbell, 541 U.S. 637, 649­50, 124 S. Ct. 2117, 2125­26 (2004), about a stay of execution being an equitable remedy, not available as a matter of right, and about how federal courts considering granting a stay must be "sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Hill, 126 S. Ct. at 2104. It also instructed us that "[a] court considering a stay must also apply `a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.' " Id.

(quoting Nelson, 541 U.S. at 650, 124 S. Ct. at 2126).

At the time the Hill decision was announced, a number of federal courts had exercised their equitable powers to dismiss this type of lawsuit on grounds that the claim about the lethal injection procedures and protocol was too speculative or had been filed too late. Hill, 126 S. Ct. at 2104 (citing Hicks v. Taft, 431 F.3d 916 (6th Cir. 2005); White v. Johnson, 429 F.3d 572 (5th Cir. 2005); Boyd v. Beck, 404 F.

Supp. 2d 879 (E.D.N.C. 2005)). While not passing on the decisions in those particular cases, the Supreme Court did point to them and conclude that the problem they addressed is significant, as would be the problem of piecemeal or repetitive litigation in this type of case. Hill, 126 S. Ct. at 2104. The Supreme Court flat out said in its Hill opinion that: "The federal courts can and should protect States from dilatory or speculative suits." Id. If that means anything, it means that we must affirm the district court's dismissal of Rutherford's § 1983 complaint on the alternative ground that he is not entitled to equitable relief because he delayed unnecessarily in bringing the claim, deliberately waiting until the Friday night before the scheduled execution on Tuesday to file, knowing full well that the discovery, evidentiary hearing, and decision on the merits that he demands could not possibly be accomplished in that short period of time.

Our decision to affirm in this case is supported, if not compelled, by the decision of another panel of this Court in the Hill case on remand. In that case, unlike this one, the district court had not reached the issue of whether, if there were jurisdiction to consider the lethal injection claim, relief should be denied on equitable grounds because of the delay in bringing it. The case was remanded to the district court for consideration of that issue. Hill v. McDonough,F.3d, No. 06-10621, 2006 WL 2472727, at *1 (11th Cir. Aug. 29, 2006). The district court on remand in Hill reached the same decision that the district court in the present case had reached originally, which is that the relief sought in the § 1983 proceeding was barred on equitable grounds, and dismissed the complaint on that basis. See Hill v. McDonough,F.3d, No. 06-14927, 2006 WL 2641659, at *1 (11th Cir. Sept. 15, 2006). On appeal, this Court effectively affirmed that decision, treating Hill's motion for a stay of execution as a request for preliminary injunctive relief and denying it. Id. In doing so, we stated that "we dispose of Hill's motion by denying his request for an injunction based upon our independent analysis of the equities." Id. at *2.

In the course of doing so, we referred to "the clear indication from the Supreme Court in this case that we may deny Hill's request if the equities demand that result." Id. We explained that far from having the equities on his side, "Hill was the architect of the very trap from which he now seeks relief." Id. What we said about Hill applies with full force to Rutherford. We pointed out that Hill had filed "his § 1983 complaint four days before his previously scheduled execution date of January 24, 2006." Id. Likewise, Rutherford filed his § 1983 complaint four days before his scheduled execution date of January 31, 2006.

We pointed out in Hill that the petitioner had filed his § 1983 complaint "just after the Florida Supreme Court rejected his application for post-conviction relief on, among other grounds, his challenge to the Florida lethal injection protocol." Id. Likewise, Rutherford filed his § 1983 complaint just after (actually, the same day) the Florida Supreme Court affirmed the denial of his request for post-conviction relief on this ground among others. As we explained in Hill, "assertion of essentially the same lethal injection challenge in the Florida courts reveals that he was aware of the grounds for the claim much earlier than the date on which he actually filed his § 1983 action in federal district court." Id. The same is true here.

And that is not all. We also explained in our last Hill opinion that: [W]e need not rely on that inference alone to determine that Hill unreasonably delayed in filing his federal complaint. The Florida Supreme Court considered a challenge to the Florida lethal injection protocols on similar grounds as early as 2000. Sims v. State, 754 So.

2d 657, 666-68 (Fla. 2000). Although it is unclear from the procedural history whether Hill addressed the Sims precedent in his post-conviction proceedings after 2000, the fact remains that, during the pendency of his various collateral challenges, Florida had considered the same type of claim upon which Hill now seeks relief.

In light of this context, Hill cannot claim that it was impossible for him to initiate his federal suit any earlier. is based upon was published, exactly the same could have been said in the Hill case. Besides, as we explained in our earlier decision in this case, the Lancet article was published in April 2005 nine months before Rutherford filed his complaint. Rutherford I, 438 F.3d at 1092. This Court concluded in the last Hill opinion that "[i]n light of [petitioner's] actions in this case, which can only be described as dilatory, we join our sister circuits in declining to allow further litigation of a § 1983 case filed essentially on the eve of execution." Hill, 2006 WL 2641659, at *3.

The difference between this case and the Hill case is that no remand to the district court is necessary to see how the district court will decide the equitable issues raised by the last minute nature of the filing, because the district court has already decided those issues in this case. It did so by stating as an alternative basis for dismissing Rutherford's § 1983 complaint that he was not equitably entitled to relief. Rutherford I, at 1102­03 (appendix containing district court opinion).

Rutherford contends that we ought not pay any attention to that alternative holding, because the district court concluded in the same order that it lacked jurisdiction to address the claim. He cites a half dozen decisions holding that if a court lacks subject matter jurisdiction it lacks the power to decide a claim. Of course that's true. But the problem with Rutherford's argument is that the Supreme Court, which traditionally has the last word in these matters, has now emphatically held that district courts do have jurisdiction to entertain this claim in a § 1983 proceeding even where the plaintiff previously had litigated a § 2254 petition. Hill, 126 S. Ct. at 2102. The Supreme Court's Hill decision reduces Rutherford's argument to this proposition: a district court which erroneously concludes that it lacks jurisdiction does lack jurisdiction even if it does not really lack jurisdiction. That proposition is not only contrary to common sense but also is foreclosed by circuit precedent. See M.H.D. v. Westminster Schools, 172 F.3d 797, 802 n.12 (11th Cir. 1999) (if a district court dismisses alternatively on the merits and for lack of subject matter jurisdiction, we may affirm on the merits after concluding that there was jurisdiction); see also IFC Interconsultant, AG v. Safeguard Int'l Partners, 438 F.3d 298 (3d Cir. 2006) (same); Town Stores, Inc. v. Equal Employment Opportunity Comm'n, 708 F.2d 920, 923 (4th Cir. 1983) ("Having concluded that the district court erred in dismissing the action for a lack of jurisdiction, we now must turn to a review of its alternative holding . . . .").

Rutherford also argues that the well-established equitable principles the district court applied in this case, and which the Supreme Court stressed in Part III of its Hill opinion, 126 S. Ct. at 2104, have no relevance here because he is seeking permanent injunctive relief on the merits, not a stay of execution. We rejected that contention in our prior opinion, "agree[ing] with the Fifth Circuit that the last-minute rules of the Supreme Court in Nelson and Gomez [v. United States Dist. Court for N. Dist. Of Cal., 503 U.S. 653, 112 S. Ct. 1652 (1992)] `were declared by the Court in the context of last-minute § 1983 method of execution challenges as well as last-minute stay requests. The principles enunciated by the [Supreme] Court are equally applicable to all types of equitable relief, including permanent injunctions, sought by inmates facing imminent execution.'" Rutherford I, 438 F.3d at 1092 n.3 (quoting White v. Johnson, 429 F.3d 572, 573­74 (5th Cir. 2005)). So far as we can find, no circuit has held to the contrary.

And it is well to remember that in Hill the Supreme Court spoke of federal courts invoking equitable power not merely to deny stays, but "to dismiss suits they saw as speculative or filed too late in the day," and also to address problems of "piecemeal litigation." Hill, 126 S. Ct. at 2104.

In his supplemental briefs Rutherford insists that the circumstances have changed since the district court ruled because at the time he filed those briefs his execution had not been rescheduled. The problem with that approach is two-fold.

First, we are not sitting as a court of first resort, deciding what would be the proper result if Rutherford had just filed with us his § 1983 complaint and associated motions. We are reviewing the decision of the district court, which was entered less than seventy-two hours before the date on which the execution was initially scheduled. Second, the Governor of Florida has now rescheduled Rutherford's execution and a stay of execution would be necessary for Rutherford to seek and obtain the final relief he seeks.

We have carefully considered the views of our dissenting colleague but are unable to agree with them. Because the Lancet article was published on April 16, 2005, the dissenting opinion, in its first footnote, concedes that "the factual basis for Rutherford's claim may have been known to him in April of 2005," which was more than nine months before he filed this claim. It was, the dissenting opinion insists, "the legal basis for his claim [that] was not available until January 2006." Id.

But none of the law applicable to this claim changed in January 2006.

While the Supreme Court did grant certiorari in the Hill case on January 25, 2006, a grant of certiorari does not change the law. See Ritter v. Thigpen, 828 F.2d 662, 665­66 (11th Cir. 1987); Thomas v. Wainwright, 788 F.2d 684, 689 (11th Cir. 1986). When Rutherford finally filed his claim on Friday night, January 27, 2006, to stop his scheduled execution on Tuesday, January 31, the law in this circuit was the same as it had been during the entire time he was withholding that claim.

Circuit law did not change until the Supreme Court issued its Hill decision on June 12, 2006. That decision cannot explain or excuse Rutherford's late filing because it was not issued until four and a half months after he had filed.

Nor can we agree with the dissenting opinion's attempted distinction of the Hill case from this one. The two cases, as we have already pointed out, are materially identical insofar as the facts relating to the equitable considerations are concerned. Even though Hill and Rutherford both filed the same claim challenging the same lethal injection protocol in the same state the same number of days before their scheduled executions, which were to occur just one week apart, the dissenting opinion says the two cases are materially different. They are different, in its view, because by persuading the Supreme Court to grant certiorari in his case, while Rutherford laid back, Hill brought about a "fundamental[] change[]" in "the legal landscape"; Rutherford did not. The idea is that because Hill paved the way for Rutherford, it is okay to execute Hill but not Rutherford. It cannot be the law, and it certainly is not equitable, to treat a litigant who does nothing until there is an indication the law may be changed more favorably than one who actually brings about that change in the law. Treating Rutherford more favorably than Hill would turn the incentives upside down and be anything but equitable.

We also disagree with the dissenting opinion's critique of the district court's treatment of the equitable considerations issue. The district court did not "only analyze[] this issue as an afterthought," but carefully considered the applicable law and facts and entered an alternative holding that the relief sought would be denied on equitable grounds. See Rutherford I, 438 F.3d at 1102§ 1983 action until just days before his scheduled execution." Id. at 1102. The district court did apply the proper law, see id. at 1102­03, citing and quoting from the same parts of the Supreme Court's Gomez and Nelson opinions that the Supreme Court itself discussed favorably in Part III of the Hill decision, 126 S. Ct. at 2104. The district court's discussion of the relevant law was no more "an afterthought" than the Supreme Court's discussion of it was in Hill.

Speaking of the effect of federal court litigation on state death sentences, twenty-three years ago Judge Godbold of this Court sagely observed that "[e]ach delay, for its span, is a commutation of a death sentence to one of imprisonment." Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983). By holding his claim back until there was not enough time to have it adjudicated without a stay of execution, Rutherford used what then-Justice Rehnquist called the "hydraulic pressure" of a last-minute filing, Evans v. Bennett, 440 U.S. 1301, 1307, 99 S. Ct.

1481, 1485 (1979) (Rehnquist, Circuit Justice), to obtain a federal court imposed eight month commutation of his death sentence. He is not entitled to another one.

Because we affirm the district court's dismissal of Rutherford's § 1983 complaint on equitable grounds, we need not address the additional defenses of collateral estoppel and failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act, 42U.S.C. § 1997e(a), which the State has asserted as alternative bases for affirmance.

AFFIRMED.2

*****

WILSON, Circuit Judge, dissenting:

It is now clear that Rutherford is entitled to challenge the method by which Florida seeks to execute him by presenting his claim under 28U.S.C. § 1983. See Hill v. McDonough, 547 U.S. , 126 S. Ct. 2096, 2101­04, 165 L. Ed. 2d 44 (2006). The Supreme Court remanded Rutherford's case back to us for reconsideration in light of its decision in Hill. Rutherford v. McDonough, 126 S.

Ct. 2915, 165 L. Ed. 2d 914 (2006) (mem.). Pursuant to the remand, the majority agrees with the district court's alternative ruling that Rutherford's § 1983 claim should not be heard because he should have brought it earlier. I disagree. I continue to believe, as I noted in my earlier dissent, that the district court abused its discretion by concluding that even if Rutherford's § 1983 claim were cognizable, his delay in bringing the claim precluded equitable relief. Rutherford v. Crosby, 438 F.3d 1087, 1097§ 1983 action.1 The district court's determination that Rutherford unreasonably delayed the filing of his claim was, in essence, an alternative basis for dismissing his case.

There was no semblance of a proper discussion or balancing of the equities of Rutherford's claim. The court did not apply the appropriate standard for a stay or injunction under § 1983. Conspicuously absent from the district court's order is any discussion of the following four factors: (1) whether there is a substantial likelihood of success on the merits; (2) whether the requested action is necessary to prevent irreparable injury; (3) whether the threatened injury outweighs the harm the stay or injunction would inflict upon the non-movant; and (4) whether the requested action would serve the public interest. See Seigel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (per curiam). The district court obviously did not feel the need to consider these four factors because it believed that Rutherford's "claim 1 The majority asserts that Rutherford was aware of the factual grounds for his claim as early as 2000 when the state of Florida instituted lethal injection as a method of execution. That year, the Florida Supreme Court evaluated the constitutionality of Florida's lethal injection protocols. See Sims v. State, 754 So. 2d 657 (Fla. 2000). The petitioner in Sims, however, centered his argument on the pain and suffering that could occur if execution procedures were not followed. Id. at 668. In this case, Rutherford alleges that even if carried out as planned, the execution methods constitute cruel and unusual punishment. Rutherford bases his claim on recent research published in a medical journal detailing the effects of the chemicals in lethal injection. See Leonidas G. Koniaris, et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 THE LANCET 1412 (Apr. 16, 2005). This research indicates that inmates may feel the suffering of suffocation, the burning through the veins, and the pain of a heart attack due to inadequate anaesthesia. Id. Though the factual basis for Rutherford's claim may have been known to him in April of 2005, the legal basis for his claim was not available until January 2006. and request for relief [wa]s the functional equivalent of a successive habeas corpus petition." Rutherford I, 438 F.3d at 1102 (reprinting district court order as appendix). We have learned from Hill that that belief was incorrect. 126 S. Ct. at 2101­04.

Without weighing the four factors, the district court erroneously concluded that Rutherford unnecessarily delayed in bringing his claim, and thus deemed a stay inappropriate. A "strong equitable presumption against the grant of a stay" is appropriate only when "a claim could have been brought at such a time as to allow consideration of the merits without the requiring of a stay." Nelson v. Campbell, 541 U.S. 637, 650, 124 S. Ct. 2117, 2126, 158 L. Ed. 2d 924 (2004). Here, there would have been little point in Rutherford bringing his claim any earlier than he did. Prior to the Supreme Court's decision in Hill, our precedent in Robinson v. Crosby, 358 F.3d 1281 (11th Cir. 2004), would have required a district court to treat Rutherford's § 1983 claim as a successive habeas corpus petition. See id. at 1284. Thus, based on our prior precedent which has now been overruled, the district court would have been correct to summarily dismiss it for lack of jurisdiction. See id. It was not until the Supreme Court's grant of certiorari in Hill that Rutherford had reason to believe that his claim would be heard. Rutherford filed his § 1983 claim on January 27, 2006, two days after the Supreme Court granted certiorari in Hill. I see nothing in the record to suggest, as the majority opines, that Rutherford "deliberately waited" to file his claim days before his scheduled execution. Thus, the district court abused its discretion in applying a "strong equitable presumption" against a stay. Furthermore, the district court's order only analyzed this issue as an afterthought on the premise that the court's first ground would be upheld.

The majority affirms the district court's dismissal of Rutherford's § 1983 action in an effort to "protect states from dilatory or speculative suits." Hill, 126 S. Ct. at 2104. The majority concludes that a remand is unnecessary because the district court already determined that Rutherford's suit was dilatory. I do not read Hill as giving license to the lower federal courts "to overlook all other considerations that are called for in equity, which, after all, should be a recourse to principles of justice and fairness to correct or supplement the law as applied to particular circumstances." Brown v. Livingston, 457 F.3d 390, 392 (5th Cir. 2006) (Dennis, J., dissenting). Rather, "equity in cases of this nature requires courts to consider the particular circumstances of each case and to examine them for whether or not the challenge has been brought dilatorily or for improper purposes.

. . , and, if not, whether it should be allowed to proceed." Id. The district court did not consider Rutherford's particular circumstances.

The majority also argues that its decision to affirm is compelled by the result in the Hill case on remand. Hill v. McDonough, No. 06-14927, 2006 WL 2641659, (11th Cir. Sept. 15, 2006). Hill filed his § 1983 claim four days before his execution with full knowledge that under this Circuit's precedent, his claim would be dismissed as a successive habeas petition. See Robinson, 358 F.3d at 1284. In fact, the district court dismissed Hill's claim outright for lack of jurisdiction, holding that Hill's action was the functional equivalent of a successive petition for a writ of habeas corpus filed without leave and, thus, ran afoul of 28U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL 167585, at *2­3 (N.D. Fla. Jan. 21, 2006). Following our precedent in Robinson, 358 F.3d 128, and In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), we summarily affirmed the district court and denied Hill's application for a stay of his execution pending appeal. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006) (per curiam). Against the odds, the U.S. Supreme Court granted certiorari in Hill's case. Hill v. Crosby, 546 U.S., 126 S. Ct. 1189, 1190, 163 L. Ed. 2d 1144 (2006) (mem.).

Hill's case is materially different from Rutherford's. Hill filed a highly speculative suit as a last ditch effort to stall his execution. Nothing in our circuit precedent, or Supreme Court precedent, provided a basis for a § 1983 challenge to Hill's method of execution. On the other hand, when Rutherford filed his § 1983 claim, the legal landscape had fundamentally changed. A grant of certiorari by the Supreme Court, obviously, does not change our Circuit law, but it does call that law into question. Only after the Supreme Court's grant of certiorari in Hill, which presented the same issues Rutherford faced, did Rutherford have reason to believe that his claim would be heard. The majority suggests that it "cannot be the law" that Rutherford could benefit from precedent established by Hill's efforts.

Again, I disagree. Litigants benefit from the efforts of prior litigants who shape the law every day. That is precisely why the Supreme Court remanded this case back to us for reconsideration ­ because Hill forged new precedent.

Nothing in the record suggests that Rutherford filed his claim solely in an attempt to delay his impending execution. In fact, the record compels the opposite conclusion. Since Rutherford filed his § 1983 claim, he has vigorously pursued that claim and urged the courts at all stages to give him an evidentiary hearing on the merits. For example, Rutherford urged us to remand his case to the district court post-Hill for further proceedings on the merits despite the fact that no death warrant was pending and his execution was not imminent. Furthermore, once his second death warrant had been signed and his execution date set, he petitioned the U.S. Supreme Court for a writ of mandamus in an effort to compel us to remand his case to the district court for a hearing. These circumstances contradict the majority's assertion that his § 1983 claim is merely as a delay tactic and instead demonstrate that Rutherford has sought and continues to seek a full and fair hearing on the merits of his constitutional challenge to Florida's lethal injection protocol. I am simply not persuaded by the view of the majority that Rutherford's sole intent is to buy more time on death row, rather than to force the State to execute him in compliance with the Constitution.

Certainly, the State and its victims have an "important interest in the timely enforcement of a sentence," but this interest must be balanced against the constitutional right of a death row inmate to be executed in a manner consistent with the requirements of the Constitution. Recent developments in medical research have called into question the degree of pain and suffering caused by the method of lethal injection some states, including Florida, use. See Leonidas G.

Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 THE LANCET 1412 (Apr. 16, 2005). To date, most lower courts have avoided squarely addressing whether execution by this three-drug protocol violates the Eighth Amendment, thus preventing review by the United States Supreme Court.

See, e.g., Hill, 2006 WL 2641659; Robinson, 358 F.3d 1281; Brown v. Crawford, 408 F.3d 1027 (8th Cir. 2005) (per curiam); Bieghler v. State, 839 N.E.2d 691 (Ind. 2005). But see Walker v. Johnson, No. 1:05-CV-934 CMH TRJ, 2006 WL 2619857 (E.D. Va. Sept. 11, 2006) (dismissing inmate's § 1983 claim which relied on risks of deviation from execution protocol).

Rutherford does not challenge the validity of his sentence, rather the method in which the State seeks to carry it out. Rutherford's challenge, even if successful, does not foreclose his execution. He will be put to death for his crime. But, because Rutherford presents a legitimate claim that the lethal injection protocol that awaits him may constitute cruel and unusual punishment, which the Eighth Amendment forbids, and because the district court failed to engage in a full and proper analysis of the equities in Rutherford's case, I would reverse the district court's decision and remand for a hearing on the merits of his § 1983 claim.2

*****

1 On that same day we also denied an application for leave to file a successive petition and for a stay that Rutherford had filed the day before. In re: Rutherford, 437 F.3d 1125 (11th Cir. 2006). B. Id. (footnote omitted). Again, the same is true here. To the extent that Rutherford contends he should be excused for not filing his claim before the Lancet article it

2 Last week Rutherford filed an application for a stay of execution pending our decision in this appeal. We deny that application as moot.

2 A court in the Northern District of California is currently hearing expert testimony regarding a challenge to California's lethal injection protocols, which are materially similar to Florida's procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford deserves the same opportunity. Consequently, I would grant Rutherford's Application for a Stay of Execution, permitting him to return to the district court for a hearing on the merits of his § 1983 claim.