TED BUNDY IN THE COURTS: THE DEATH WARRANTS AND THE LAST APPEALS, 1978-1989

At about 2:30 on the afternoon of November 17, 1986, sixteen and a half hours before he was due in the electric chair, Theodore Robert Bundy's lawyers filed a 183-page petition for a writ of habeas corpus in the federal district court for the Middle District of Florida. The judge had read the trial record in advance. He dismissed the petition without a hearing at 10:49 that night and refused a stay. The Eleventh Circuit granted one the next day, and it took the federal courts nearly two more years to finish with the petition. Their final opinion, handed down in July 1988, works through fifteen numbered claims, among them Bundy's competence to stand trial, his right to choose his own lawyer, and the testimony of Clarence Anderson, the only eyewitness to the abduction of twelve-year-old Kimberly Leach, whose memory had been refreshed under hypnosis before he took the stand.

This file gathers ten rulings from 1978 to 1989. The earliest dates from the summer Bundy sat in the Leon County Jail awaiting trial for the Chi Omega murders: a Georgia lawyer, Millard C. Farmer Jr., had been refused leave to appear for him, and the two of them sued the judges and prosecutors in federal court. District Judge William Stafford dismissed the suit, and the Fifth Circuit affirmed on his order. The rest follow the death warrants. The first, signed in May 1986 on the Chi Omega sentences, produced two Florida Supreme Court rulings in the last week of June and an Eleventh Circuit stay on July 2, the morning he was to die. In January 1987 that court sent the Chi Omega case back because the 1979 hearing on his competence had been no contest at all: Bundy and his new lawyer joined the state in calling him competent, and the lawyer who thought otherwise was never called. The November 1986 warrant on the Leach sentence led to the remand for a competency hearing in 1987, the district court's finding that he had been competent, and the 1988 affirmance.

The last ruling came on January 20, 1989, three days after the governor signed a second warrant. Wallace Jopling, the judge who had tried the Leach case, had stepped aside on Bundy's motion, and Circuit Judge John W. Peach heard the final motion, which argued among other things that the trial court should have questioned Bundy's competence when he turned down a plea bargain that would have spared his life. The Florida Supreme Court held the claim barred and refused a stay. In the days before the execution Bundy confessed to more killings and offered to say more in return for a delay; Governor Bob Martinez refused to negotiate. He died in the electric chair at Florida State Prison on January 24, 1989, and was pronounced dead at 7:16 a.m.

These are rulings, not arguments: each court's account of the facts is its own summary of the record, and several of them were written in a matter of hours against an execution date. Two direct appeals belong to this run and are left out because they are printed in full with their briefs on the site's separate pages for each case: the Chi Omega decision, 455 So. 2d 330 (1984), and the Leach decision, 471 So. 2d 9 (1985). The 1987 Chi Omega remand never came to a decision on whether Bundy had in fact been incompetent in 1979; it held only that the hearing had been inadequate. The 1988 opinion's discussion of Clarence Anderson prints part of his trial testimony, and the court concluded it was not so unreliable as to make the trial unfair. That was the court's judgment on the record, not a finding that his account was accurate.

The text is the official reporters' typeset text, public domain as the work of the courts. Jurors appear only by number, as the Eleventh Circuit identified them. The 1978 order prints the addresses of the county jail and of Farmer's Atlanta office, both institutional, and they are left in. The courts spell the girl's name Kimberly and, once, Kimberley, and line-break hyphens from the scan such as "Bun-dy" are left as they came.

581 F.2d 1126, decided October 2, 1978

Theodore Robert BUNDY, and Millard C. Farmer, Jr., Plaintiffs-Appellants, v. John RUDD et al., Defendants-Appellees.

No. 78-3026

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 2, 1978.

Millard C. Farmer, Jr., pro se.

Albert J. Krieger, Miami, Fla., for plaintiffs-appellants.

Robert L. Shevin, Atty. Gen., Tallahassee,’ Fla., Richard A. Hixson, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appellees.

Before RONEY, GEE and FAY, Circuit Judges.

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

[OPINION BY PER CURIAM: type=majority]

PER CURIAM:

The denial of requested relief and dismissal entered by the Trial Court is affirmed on the basis of the unpublished Order entered by Judge William Stafford on September 15, 1978, appended hereto.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

THEODORE ROBERT BUNDY,

Leon County Jail 2825 Municipal Way Tallahassee, Florida 32304

and

MILLARD C. FARMER, JR.,

Suite 831

15 Peachtree Street, N.E.

Atlanta, Georgia 30303

Plaintiffs,

vs.

TCA 78-0897

JOHN RUDD,

In his capacity as Judge for the Circuit Court of

APPENDIX — Continued

the Second Judicial Circuit, in Leon County, Florida,

CHARLES M. McCLURE, In his capacity as Judge in County Court of Leon County, Florida, for the Second Judicial Circuit,

HARRY MORRISON, In his capacity as State Attorney in Leon County, Florida, and in his capacity of representing the State of Florida in Criminal Actions Pending Against Theodore Robert Bundy in the State of Florida,

LARRY SIMPSON, In his capacity as Assistant State Attorney in Leon County, Florida, and in his capacity of Representing the State of Florida in Criminal Actions Pending Against Theodore Robert Bundy in the State of Florida,

Defendants.

ORDER

Before the court are plaintiffs’ motion for preliminary injunction and demand for permanent injunctive and declaratory relief and defendants’ motion to dismiss or, in the alternative, to strike.

The procedural history of this action, as relevant here, unfolds as follows. On July 24, 1978, the Public Defender for the Second Judicial Circuit of Florida moved in Leon County Circuit Court on behalf of Theodore Robert Bundy, co-plaintiff in this case, for leave to have co-plaintiff Millard C. Farmer, Jr. appear with the Public Defender to represent Bundy in the state grand jury proceedings scheduled to commence in Tallahassee on July 25. Attached to the motion was a certificate of Farmer’s good standing as an attorney from the Georgia Supreme Court. The Circuit Court reserved ruling on that motion. The Leon County Grand Jury then indicted Bundy for various offenses including first degree murder and burglary. At Bundy’s first appearance on these charges on July 28, he moved the County Court to allow Farmer to represent him solely during that proceeding. That motion was denied by the County Judge, defendant Charles M. McClure. Bundy was arraigned in Circuit Court July 31; at that time Farmer requested the right to represent Bundy pro hac vice solely for the arraignment but that request was denied by the Circuit Judge, defendant John A. Rudd. At an August 2 hearing on the State’s motion to extend time for speedy trial, Farmer once again renewed his motion to represent Bundy pro hac vice. Judge Rudd granted Bundy ten additional days to oppose the motion of the state (represented by defendants Harry Morrison and Larry Simpson) for extension of time and orally denied Bundy’s August 2 motion requesting Judge Rudd to disqualify himself. A written order to that effect was entered the next day by Judge Rudd along with an order denying Farmer the right to represent Bundy pro hac vice. Bundy filed a pro se petition for writ of common law certiorari with the Supreme Court of Florida on August 4, 1978, requesting an order from that court directing the state to show cause why he was being denied his Sixth Amendment right to counsel. Also on August 4 Bundy and Farmer filed this 42 U.S.C. § 1983 action, requesting preliminary and permanent injunctions along with declaratory relief, the gravamen of the complaint alleging a denial of plaintiffs’ rights to due process, to equal protection and to counsel. Chief Judge Arnow of this court denied plaintiffs’ respective motions for a preliminary injunction following a hearing on August 11. On August 14 plaintiffs filed their joint petition with the Florida Supreme Court seeking writs of certiorari, mandamus and prohibition, with both Farmer and Bundy alleging violations of their First, Fifth, Sixth and Fourteenth Amendment rights. On August 21, 1978, the Supreme Court of Florida denied all of plaintiffs’ writs without opinion. On August 23 defendants filed a motion to dismiss in this case, and on August 28 both plaintiffs renewed their requests here for preliminary injunction. This court held a hearing on all pending motions on September 6, at which time counsel announced that all evidence, legal authority and pleadings were before the court and that this matter was ripe for disposition.

II.

Defendants claim that plaintiffs amended their complaint the second time without receiving, or even seeking, leave of court as required by Rule 15(a) Fed.R.Civ.P. Inquiry at the September 6 hearing demonstrated no prejudice to defendants from allowing the amendment, and, accordingly, plaintiffs were then granted leave to file their second amended complaint.

Plaintiffs advance two separate theories in this case. In spartan terms, plaintiff Bundy requests relief from an alleged denial of his Sixth Amendment right to counsel, while plaintiff Farmer contends that he was denied the essentials of due process required prior to deprivation of liberty or property interest under the Fourteenth Amendment.

Defendants, in turn, seek dismissal of all claims here, contending alternatively that this court should abstain in deference to the state court, that Farmer has been accorded whatever due process he is entitled to receive, and that plaintiffs’ proper remedy, in any event, is to seek review in the United States Supreme Court under 28 U.S.C. § 1257.

The claims of each plaintiff will be considered separately.

III.

Plaintiff Bundy, indicted for numerous state felonies, including capital offenses, asks this federal court to order the state trial court to allow plaintiff Farmer, not a member of The Florida Bar, to represent Bundy in his pending criminal cases. The Public Defender’s office was appointed by the Florida state courts to represent Bundy; however, with the appearance of plaintiff Farmer on the scene, Bundy has now refused the services of the Public Defender. The Public Defender remains available to represent Bundy, but Bundy wants Farmer to be his lawyer. Farmer is equally anxious to represent Bundy. To refuse these mutual requests, says Bundy, is to deny him his Sixth Amendment right to counsel.

To grant Bundy’s request would result in this court’s ordering the state trial judge before whom the criminal case is pending to permit a pro hac vice appearance by an attorney already refused such admission by that same state judge, a direct interference with the ongoing state criminal prosecution.

If there was ever a doubt as to the propriety or wisdom of federal district court intrusion into pending state criminal proceedings, that doubt was removed by the decision of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Citing first the traditional equitable principle that “courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief” Id. at 43-44, 91 S.Ct. at 750, the Court then articulated

an even more vital consideration, the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.

Id. at 44, 91 S.Ct. at 750.

The late Justice Hugo Black, writing for the majority in Younger, analyzed the historic and contemporary application of this concept:

The concept does not mean blind deference to “States’ Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, “Our Federalism,” born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.

Id. at 44-45, 91 S.Ct. at 750.

The fact that the defendants also seek a declaratory judgment, ostensibly a less onerous intrusion on the state criminal proceedings, is of no moment. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), decided the same day as Younger, holds that whether the relief sought is declaratory judgment or injunction, the federal interference with the pending state criminal prosecution is the same.

In its August 23, 1978 decision in Gibson v. Jackson, 578 F.2d 1045, the Fifth Circuit Court of Appeals, while cautioning that the abstention doctrine of Younger and its progeny is to be applied on a case-by-case basis and “determined by principled discretion not doctrinaire adherence,” nevertheless vacated the judgment of the federal district court which had ordered the State of Georgia to furnish court-appointed counsel and other monetary assistance in state habeas corpus proceedings to a state defendant sentenced to death. Perhaps apropos in the context of this case is the special concurring opinion of two of the three judges in Gibson, that opinion expressing the view that cases where the death penalty is involved should not be governed by a special category of safeguards different from those cases where a lesser penalty is imposed.

Application of the principles of Younger and Gibson to the case at bar mandates that this court stay its hand as to Bundy’s claims.

IV.

Plaintiff Farmer seeks a hearing in the state court, alleging that the proceedings there to date did not afford him due process and resulted in a denial of his property and liberty interests. Defendants deny that Farmer has such interests, maintaining that whatever due process rights he had were protected by the state court. Defendants would also have this court apply Younger-type abstention to his claims.

Merely ordering the state court to hold a further hearing on Farmer’s own claims would not prejudice, or interfere with, the conduct of Bundy’s trial on the merits. Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The “equitable restrictions” of Younger are not aimed at collateral issues in state criminal proceedings; therefore, Younger principles will not dispose of Farmer’s contentions. Accordingly, the court turns to his due process claim.

Plaintiff Farmer has asserted an interest he characterizes as a deprivation of a “substantial right or status.” If by that allegation he attempts to establish a property interest sufficient to invoke due process, then he fails in that regard.

Protected interests in property are normally ‘not created by the Constitution. Rather, they are created and their dimensions are defined’ by an independent source such as state statutes or rules entitling the citizen to certain benefits.

Goss v. Lopez, 419 U.S. 565, 572, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975). See, e. g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Thurston v. De-kle, 531 F.2d 1264 (5th Cir. 1976), vacated 436 U.S.--, 98 S.Ct. 3118, 57 L.Ed.2d 1144, on remand, 578 F.2d 1167 (1978). Farmer has referred this court to no such independent source. Without “more than an abstract need or desire... [o]r a legitimate claim of entitlement” to represent Bundy, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1977), Farmer’s claim cannot rise to the level of a property right.

Alternatively, in his attempt to assert a denial of liberty sufficient to invoke due process, Farmer alleges an injury to his “professional reputation and character,” a “badge of infamy” and “contamination” to his reputation. Dennis v. S & S Consolidated Rural H. S. Dist., 577 F.2d 338 (5th Cir. 1978), elaborated upon the liberty interest test discussed in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Fifth Circuit calling it “stigma-plus.”

To establish a liberty interest sufficient to implicate Fourteenth Amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with a denial of a right or status previously recognized under state law.

Dennis at 341. Assuming, arguendo, that Farmer has been stigmatized by not being allowed to represent Bundy in the state criminal proceedings, it is difficult to determine what previously recognized right or status under state law he has been denied. Indeed, Farmer has not pointed to any such right or status. Certainly, his claimed pro hac vice appearance in other Florida courts does not create a sufficient “plus” to make his reputation a constitutionally protected liberty interest. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (employment termination cases). This claim of Farmer’s likewise must fail.

Farmer maintains, however, that he is entitled to relief here because of the Sixth Circuit holding in Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978), appeal docketed, 46 U.S. L.W. 3723 (May 23, 1978). In Flynt the out-of-state attorneys had already been admitted pro hac vice by one state court judge to represent the defendants, when suddenly the judge to whom the case was assigned for trial summarily, without notice, without hearing and with no reason given, revoked their admission and would not allow them to participate further as counsel in the case. The out-of-state attorneys in Flynt had previously appeared as trial counsel in the same judge’s court without incident and were found by the Sixth Circuit “to have exemplary academic and professional qualifications.” Flynt at 876. Without deciding what the nature of these attorneys’ interest was when they originally sought admission, the Sixth Circuit found that once the state court had authorized them to act, their interest had advanced to the stage where they could not be denied the right to further appear for their clients “without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion.” Flynt at 879. Finding that none of these due process requirements were present and rejecting the Younger abstention argument, the Sixth Circuit affirmed the district court which had enjoined the state prosecution until the attorneys were granted a due process hearing. This is the same relief Farmer seeks from this district court.

What occurred in Flynt is far different from the case at bar. Farmer has never been admitted to practice in the state courts of Leon County, and particularly has not been permitted to appear pro hac vice in his representation of Mr. Bundy by any judge in Leon County. He had, thus, not acquired the status as counsel of record as the out-of-state attorneys in Flynt had done. Further, the state court had before it a reported decision reflecting adversely upon Mr. Farmer’s conduct as trial counsel in the State of Georgia where he is admitted to practice. In Farmer v. Holton, 146 Ga.App. 102, 245 S.E.2d 457 (1978), the Georgia Court of Appeals reviewed the judgment of the trial court which found Mr. Farmer guilty of direct criminal contempt twice in connection with the same proceeding. In affirming Mr. Farmer’s convictions of contempt the Georgia Court of Appeals found that Mr. Farmer’s “continuous disregard of the court’s instruction, his question to the court,.. ., his verbal assault on the court charging it with malicious and arbitrary reasoning on rulings made during voir dire,” and his other assertions were “insulting, contemptuous and contumacious.” The Georgia Court of Appeals, therefore, found that such conduct presented “criminal contempt clearly and beyond a reasonable doubt.” On September 14, 1978 the Georgia Supreme Court denied Mr. Farmer’s petition for writ of certiorari. The state court judge applied to this finding of contemptuous conduct the American Bar Association Standards Relating to the Function of the Trial Judge, § 3.5 (1972), which reads in part:

3.5 Attorneys from other jurisdictions.

If an attorney who is not admitted to practice in the jurisdiction of the court petitions for permission to represent a defendant, the trial judge may

(a) deny such permission if the attorney has been held in contempt of court or otherwise formally disciplined for courtroom misconduct, or if it appears by reliable evidence that he has engaged in courtroom misconduct sufficient to warrant disciplinary action;.

This is- sufficient to satisfy the Flynt requirement that the denial of admission to appear pro hac vice be based upon “a reasonably clear standard and a statement of reasons.” Flynt at 877. Other sections of the same ABA standards were quoted with approval by the Fifth Circuit in United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976).

Flynt also discusses the need for a hearing, and in this context consideration of the Fifth Circuit decisions in In re Evans, 524 F.2d 1004 (5th Cir. 1975) and Dinitz, supra, is appropriate. Read together, Dinitz and Evans suggest that “fundamental fairness may require ... a hearing in most. situations” where admission pro hac vice is denied. Farmer has already been heard by the Florida state court judge, but claims that that hearing was not adequate. Farmer’s situation presents an instance where the Dinitz rationale would not require a further hearing in the Florida state court because the only purpose such a further hearing would serve would be to permit Mr. Farmer to relitigate in the Florida courts the underlying issues resulting in the judgments of contempt against him in Georgia. He clearly is estopped from doing this. Thus, requiring the state court to hold a further hearing on these issues would be both unnecessary and unproductive.

The court, having considered all of the claims pursued by Farmer, finds that he, like Bundy, cannot prevail in this case.

IV.

Accordingly, it is ORDERED:

1. Plaintiffs’ motion for preliminary injunction and their demands for permanent injunctive and declaratory relief are hereby DENIED.

2. Defendants’ motion to dismiss is GRANTED.

3. This cause is dismissed with prejudice with each party to bear his own costs.

4. The clerk of this court will enter judgment accordingly.

NOTES TO THE OPINION

Fla.Stat. §§ 27.53 and 925.035 authorize state trial courts by special assignment to appoint members of the bar in good standing to represent indigent defendants with fees, costs and expenses fixed by the court and paid by the state.

Thurston had been vacated only in regard to the award of back pay and still stands as good law on the question of due process.

Since Evans and Dinitz dealt with admission pro hac vice in federal district court, it is not clear to what extent their collective rationale applies to the state courts.

In their pleadings, plaintiffs alluded to an equal protection claim. Yet no deprivation of any protected right was briefed or argued to this court. Therefore, it is not considered. Defendants contend that 28 U.S.C. § 1257 should prevent this federal district court from consideration of plaintiffs’ cases, arguing that review of the Florida Supreme Court’s August 21, 1978, order lies in the United States Supreme Court. However, as a result of this court’s disposition of plaintiffs’ claims, the § 1257 argument need not be considered.

490 So. 2d 1257, decided June 26, 1986

Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee.

No. 68960.

Supreme Court of Florida.

June 26, 1986.

James E. Coleman, Jr. and Polly J. Nelson of Wilmer, Cutler & Pickering, Washington, D.C., for appellant.

Jim Smith, Atty. Gen. and Gregory Cos-tas, Andrea Smith Hillyer and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee.

[OPINION BY PER CURIAM type=majority]

PER CURIAM

Finding that no motion for post-conviction relief under rule 3.850 has been filed, we affirm the circuit court’s order denying the application for stay of execution. Our order is without prejudice to the appellant’s right to file a motion for post-conviction relief in the trial court. See State ex rel. Russell v. Schaeffer, 467 So.2d 698 (Fla. 1985).

It is so ordered.

BOYD, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

BARKETT, J., concurs specially with an opinion.

NO MOTION FOR REHEARING WILL BE ALLOWED.

[OPINION BY BARKETT, Justice, type=concurrence]

BARKETT, Justice,

concurring specially.

I agree that this case is controlled by State ex rel. Russell v. Schaeffer, 467 So.2d 698 (Fla.1985), and therefore, I concur in the decision of the court.

I am troubled, however, by the apparently unequal treatment afforded capital defendants under death warrant in the exercise of their rights under Florida Rule of Criminal Procedure 3.850. This rule establishes the right of a criminal defendant to collaterally attack his conviction.

The rule specifically provides:

Any person whose judgment and sentence became final prior to January 1, 1985, shall have until January 1, 1987, to file a motion in accordance with this rule.

The defendant’s case falls within these parameters. To permit the shortening of this time period by execution prior to a defendant’s opportunity to exercise the right afforded him by Rule 3.850 would seem to violate the equal protection and due process guarantees of our constitutions. “[T]he government violates the essence of due process when it creates a right to petition and then makes the exercise of that right utterly impossible.” Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir.1982). Those criminal defendants whose convictions have become final prior to January 1, 1985, are given the opportunity to carefully and deliberately evaluate and present their claims until January 1, 1987. Should not capital defendants be afforded the same opportunity?

490 So. 2d 1258, decided June 30, 1986

Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee.

No. 68976.

Supreme Court of Florida.

June 30, 1986.

James E. Coleman, Jr. and Polly J. Nelson of Wilmer, Cutler & Pickering, Washington, D.C., for appellant.

Jim Smith, Atty. Gen. and Gregory Cos-tas, Andrea Smith Hillyer and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee.

[OPINION BY BOYD, Chief Justice. type=majority]

BOYD, Chief Justice.

Theodore Robert Bundy appeals the denial of his motion to vacate judgment and sentence. Bundy is a state prisoner under sentence of death and a warrant ordering that the sentence be carried out. This Court’s previous affirmance of appellant’s convictions and sentences determined that the evidence was legally sufficient to prove guilt, that all of appellant’s contentions made there regarding the convictions and sentences were without merit, and that the sentences of death were proper under the law. Bundy v. State, 455 So.2d 330, 336, 349, 350 (Fla.1984). None of these determinations are now subject to being re-litigated. The burden is on the appellant to establish that he is entitled to have the judgments or sentences set aside. We find that he has not carried that burden. We therefore affirm the trial court’s denial of post-conviction relief.

Appellant’s motion presents four contentions: (1) that the trial court erred by failure to conduct a full and fair inquiry into appellant’s competency to stand trial; (2) that appellant was denied the right to effective assistance of counsel; (3) that the state failed to properly preserve evidence that could possibly have been exculpatory; (4) that imposition of the death penalty in this case violates the eighth amendment on the ground that application of capital punishment in Florida is arbitrary.

Appellant’s first contention is without merit because in fact there was a proper competency hearing. We reject the second contention because appellant has failed to show any deficiency of performance on the part of his trial counsel. The third contention is one that was known to the defendant at trial and therefore could have been raised at trial and on appeal but cannot be considered now. The fourth contention is one that has been rejected many times by this Court.

The trial court’s denial of the motion to vacate is affirmed. The motion for stay of execution is denied.

It is so ordered.

overton, McDonald, ehrlich and SHAW, JJ., concur.

BARKETT, J., dissents with an opinion.

NO MOTION FOR REHEARING WILL BE ALLOWED.

Bundy was convicted of two first-degree murders that were committed in Tallahassee in January, 1978. His convictions and sentences of death were affirmed on appeal by this Court. Bundy v. State, 455 So.2d 330 (Fla.1984). Bundy was also convicted and sentenced to death for a murder that occurred in Lake City in February, 1978. Conviction and sentence were affirmed by this Court. Bundy v. State, 471 So.2d 9 (Fla.1985). The current death warrant on Bundy indicates that the sentences for the Tallahassee murders are to be carried out.

[OPINION BY BARKETT, Justice, type=dissent]

BARKETT, Justice,

dissenting.

For the reasons expressed in my concurring opinion in Bundy v. State, 490 So.2d 1257 (Fla.1986), and because I do not feel the trial court’s order comports with the requirements of Florida Rule of Criminal Procedure 3.850,1 respectfully dissent.

794 F.2d 1485, decided July 2, 1986

Theodore Robert BUNDY, Petitioner-Appellant, v. Louis L. WAINWRIGHT, as Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

No. 86-5509.

United States Court of Appeals, Eleventh Circuit.

July 2, 1986.

James E. Coleman, Jr., Polly Nelson, Wilmer, Curlter & Pickering, Washington, D.C., John F. Evans, Coral Gables, Fla., for petitioner-appellant.

Gregory Costas, Andrea Smith Hillyer, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellee.

Before GODBOLD, Chief Judge, VANCE and CLARK, Circuit Judges.

[OPINION BY BY THE COURT: type=majority]

BY THE COURT:

The motion of the appellant for a stay of execution is GRANTED pending further order of this court. The appeal is expedited.

497 So. 2d 1209, decided November 17, 1986

Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee. Theodore Robert BUNDY, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.

Nos. 69615, 69616.

Supreme Court of Florida.

Nov. 17, 1986.

Polly J. Nelson and James E. Coleman, Jr. of Wilmer, Cutler & Pickering, Washington, D.C., for appellant/petitioner.

Jim Smith, Atty. Gen., and Raymond L. Marky, Mark C. Menser and John Koenig, Jr., Asst. Attys. Gen., Tallahassee, for ap-pellee/respondents.

[OPINION BY ADKINS, Justice. type=majority]

ADKINS, Justice.

Theodore Robert Bundy, a convicted murderer who is scheduled for execution November 18, 1986, appeals the trial court’s denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850 and his application for a stay of execution, and petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const. We affirm the trial court’s order, finding no basis on which to grant relief, deny the stay of execution, and deny the petition for habeas corpus.

The facts of this case and the issues raised on direct appeal are contained in this Court’s decision of Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, — U.S. -, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). In seeking relief under Florida Rule of Criminal Procedure 3.850, appellant challenges the validity of his conviction and sentence of death on the grounds that 1) he was denied a full and fair hearing on his competency to stand trial; 2) he was denied the counsel of his choice; 3) he received ineffective assistance of counsel; 4) he was denied a proper Faretta hearing, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), prior to being allowed to represent himself; 5) the death penalty in Florida is arbitrarily imposed and therefore violates the eighth and fourteenth amendments; and 6) he was unconstitutionally denied a clemency hearing in this case.

We find that the first claim could have been raised on direct appeal, as it was in Scott v. State, 420 So.2d 595 (Fla.1982), and Lane v. State, 388 So.2d 1022 (Fla.1980), and is therefore not now properly before this Court for further consideration. Alvord v. State, 396 So.2d 184 (Fla.1981); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

The second claim could have been raised' on direct appeal, as it indeed was in Bundy v. State, 455 So.2d 330 (Fla.1984), cert. denied, — U.S. -, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986), and is therefore now barred from consideration.

We find the claim of ineffective assistance insubstantial. Appellant, fully advised by the trial court of the availability of appointed counsel, chose to represent himself. As noted by the United States Supreme Court in Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975), “whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Further, we have carefully examined the allegations charging inadequacies in the performance of associate counsel, and find that such allegations fail to show the necessity for an evidentiary hearing. The claim therefore fails even the first prong of the test for ineffective assistance set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We find that appellant’s fourth claim could have been raised on direct appeal and is therefore barred from consideration. Even if we were to examine the claim, however, we would find it lacking in substance. The trial court conducted an inquiry into appellant’s ability to act as his own counsel prior to allowing him to represent himself, and during this inquiry appellant himself alerted the trial court to the teachings of Faretta. We may not now reverse the trial court’s finding of appellant’s ability to pursue his own representation.

Next, we once again reject the claim that the death penalty is unconstitutionally imposed in Florida. Bundy v. State, 490 So.2d 1258 (Fla.1986); State v. Washington 453 So.2d 389 (Fla.1984).

In the final claim raised under his 3.850 motion, appellant contends that he must be allowed time to prepare and present an application for executive clemency before sentence may be carried out in this case. In the death warrant authorizing appellant’s execution, the governor attests to the fact that “it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.” It is not our prerogative to second-guess the application of this exclusive executive function. First, the principle of separation of powers requires the judiciary to adopt an extremely cautious approach in analyzing questions involving this admitted matter of executive grace. Sullivan v. Askew, 348 So.2d 312 (Fla.), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977). As noted in In re Advisory Opinion of the Governor, 334 So.2d 561, 562-63 (Fla.1976), “[t]his Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.” See also Ex Parte White, 131 Fla. 83, 178 So. 876 (1938).

Second, the governor and cabinet held an earlier clemency hearing in relationship to appellant’s conviction for the Tallahassee murders and found no basis on which to grant him relief. We cannot say that the executive branch was required to go through the motions of holding a second proceeding when it could well have properly determined in the first that appellant was not and never would be a likely candidate for executive clemency.

We next turn to Bundy’s petition for writ of habeas corpus. Petitioner charges ineffectiveness of appellate counsel in their failure to challenge on appeal 1) the trial court’s refusal to admit petitioner’s choice of counsel pro hac vice, 2) the court’s failure to conduct an adequate Far-etta inquiry, and 3) the court’s failure to conduct an inquiry into the defendant’s competence to stand trial. We have found each of the issues utterly without merit, and can therefore find no deficiency in appellate counsels’ failure to raise them.

Accordingly, we deny the petition for writ of habeas corpus. The trial court’s denial of the motion to vacate appellant’s conviction and sentence is affirmed. The application for stay of execution is denied.

It is so ordered..

MCDONALD, C.J., and BOYD, OVER-TON, EHRLICH, SHAW and BARKETT, JJ., concur.

805 F.2d 948, decided November 18, 1986

Theodore Robert BUNDY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

No. 86-3773.

United States Court of Appeals, Eleventh Circuit.

Nov. 18, 1986.

808 F.2d 1410, decided January 15, 1987

Theodore Robert BUNDY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary Department of Corrections, State of Florida, Respondent-Appellee.

No. 86-5509.

United States Court of Appeals, Eleventh Circuit.

Jan. 15, 1987.

NOTES TO THE OPINION

Bundy is under death sentence for another murder committed in Lake City, Florida. Habeas corpus relief was denied by the United States District Court for the Middle District of Florida, and an appeal therefrom is pending before this court. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986).

It sets forth specific grounds for relief as required by Rule 2 of the 28 U.S.C. § 2254 Rules but goes more deeply into the facts than Rule 2’s provision for “setfting] forth in summary form the facts supporting each of the grounds thus specified.” Moreover it is also a brief and argument, containing lengthy discussions of the law, citations of authority and argument that properly are the subject of a brief.

The petition alleged a number of constitutional violations including inadequacy of the state trial court’s inquiry into competency to stand trial; denial of Bundy’s choice of counsel; ineffective assistance of counsel at the guilt phase of trial, at the sentencing phase, at the competency hearing, on the motion for a new trial, and on mandatory appeal to the state supreme court; unconstitutional use of the testimony of an eyewitness who had been subjected to hypnosis by the state and denial of opportunity to effectively cross-examine that witness; denial of opportunity to challenge the impartiality of the grand jury; denial of fair trial because of prejudicial and disruptive intrusion of press; admission of bite-mark evidence that was unreliable as a matter of law; improper instruction to jury on flight as evidence of guilt; arbitrary imposition of death penalty in Florida because imposed disproportionately on white defendants; improper exclusion of jurors because of views on death penalty; constitutionally deficient clemency determination procedure; and improper comment by the court on Bundy’s exercise of his right not to testify.

These conclusions are not questioned by the state in this appeal.

The reply, however, relied upon grounds drawn from the state court record and contained a multitude of citations to that record. We discuss below the impropriety of the state’s urging that the stay be denied because the petition was insufficient on its face to show likelihood of success while at the same time attempting to support that argument by reliance upon a record that it withheld from filing.

See n. 11, infra.

The district court’s written order does not refer to or suggest that it relied upon the late-filed record.

We include in the term state court record the record of trial and collateral proceedings, including transcripts of testimony.

Pursuant to the authority to "take such other action as the judge deems appropriate,” the district judge can order the respondent to make a motion to dismiss based upon information that respondent supplies, such as showing that petitioner’s claims already have been decided on the merits in a federal court, that petitioner has failed to exhaust state remedies, that petitioner is not in custody, or that a decision in the matter is pending in state court. Advisory Committee Note to Rule 4. In such situations a dismissal on procedural grounds may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition. Id. The district judge did not enter such an order in this case and, as we have noted, no motion to dismiss was ever filed.

Though, as described below, it went off the face of the petition for grounds.

We pretermit discussion of whether the petitioner, told by the court to present his arguments on motion to stay, was entitled to some word or indication that the court was taking the case under submission for decision on whether the petition should be dismissed.

In Darden v. Wainwright, 725 F.2d 1526 at 1534 n. 8 (11th Cir.1984) (en banc) (Tjoflat, J., dissenting), Judge Tjoflat pointed out that, because the State of Florida had not filed with the federal court the briefs filed by the parties in the Supreme Court of Florida, the federal court had "no definitive means of determining whether petitioner’s claims of error were based on federal or state law.”

We comment briefly on the state’s presentation on appeal. It asks us to affirm the district court’s ruling that Bundy had a full and fair competency hearing and its finding that petitioner was tried by persons not tainted by trial publicity on the basis of what the state court record shows. The place to make that contention and file the record to support it was in the district court. The state urges the application of § 2254(d) presumptions without addressing whether the prerequisites for that section have been established or whether the subject matters involved are factual or are mixed questions of law and fact, and it attempts to fasten upon petitioner the burden of negating a full and fair consideration in state court without discussing how the prerequisites of § 2254(d) can be met without a record.

816 F.2d 564, decided April 2, 1987

Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

Nos. 86-3773, 86-5509.

United States Court of Appeals, Eleventh Circuit.

April 2, 1987.

Amending Order April 27, 1987.

Opinion on Denial of Rehearing May 15, 1987.

James E. Coleman, Jr., Wilmer, Cutler & Pickering, Polly Nelson, John Byron Sand-age, Washington, D.C., John F. Evans, Holly R. Skolnick, Coral Gables, Fla., for petitioner-appellant.

Gregory Costas, Andrea Smith Hillyer, John M. Koenig, Jr., Mark Menser, Raymond L. Marky, Asst. Attys. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

[OPINION BY PER CURIAM: BY THE COURT: BY THE COURT: type=majority]

PER CURIAM:

Theodore Robert Bundy brings this appeal from a denial of his petition for a writ of habeas corpus. Bundy was convicted and sentenced to death by the Circuit Court of Columbia County, Florida, for the abduction and murder of twelve-year-old Kimberley Leach. On direct appeal, the Florida Supreme Court affirmed both the conviction and the sentence. Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, — U.S. -, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). After the Governor of Florida signed a death warrant scheduling Bundy’s execution for November 18, 1986, Bundy filed with the trial court a motion to vacate his conviction and sentence under Fla.R. Crim.P. 3.850. The trial court summarily denied Bundy any relief on November 17. Later that day, the Florida Supreme Court both affirmed the trial court’s denial of Bundy’s Rule 3.850 motion and denied Bundy’s petition for a writ of habeas corpus.

Bundy then immediately filed an application for a stay of execution, a petition for a writ of habeas corpus, and an application for a certificate of probable cause with the United States District Court for the Middle District of Florida. The state, anticipating that Bundy would file a petition for a writ of habeas corpus, had previously filed the trial record with the district court. Having reviewed the trial record in advance, the district court dismissed, without a hearing, the petition and denied the application for a stay of execution and for a certificate of probable cause. This Court subsequently granted a certificate of probable cause and a stay of execution pending appeal. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986).

In this appeal Bundy raises numerous claims challenging both his conviction and his sentence. Bundy initially contends that he was incompetent to stand trial and that he was denied a full and fair competency hearing. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A defendant is mentally incompetent to stand trial if he lacks a " ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” and if he lacks “ ‘a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). A defendant is not entitled to an evidentiary hearing on his claim of incompetency unless he “presents clear and convincing evidence to create a ‘real, substantial and legitimate doubt as to [his] mental capacity ... to meaningfully participate and cooperate with counsel____’” Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986) (quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973)). “The standard of proof is high. The facts must ‘positively, unequivocally and clearly generate’ the legitimate doubt.” Id.

The district court dismissed this claim, finding that Bundy was not entitled to an evidentiary hearing bécause he had failed to present sufficient evidence raising a legitimate doubt as to his competence to stand trial. In making that finding, the district court first noted that a trial court in Leon County had found Bundy competent to stand trial. The district court then stated that Bundy’s failure to raise this claim at trial in this case was “highly significant” and that “[i]t would be ‘a perversion of the judicial process’ to allow petitioner to waive any challenge to his competence at trial and then permit a new trial on the grounds that he was not granted a hearing on his competence.”

Admittedly, we must accept the district court’s finding that Bundy failed to produce sufficient evidence generating a legitimate doubt as to his competence to stand trial unless that finding is clearly erroneous. Id. However, our review of the record convinces us that the district court erred in concluding that Bundy was not entitled to an evidentiary hearing on this claim.

First, the district court erroneously relied on the finding of competency in the Leon County case because the record of the competency hearing in that case had not been filed with it. A state court’s finding that a defendant was competent to stand trial is not entitled to a presumption of correctness unless the state court applied the correct legal standard for determining competency to stand trial and unless its conclusion that the defendant met that standard is supported by substantial evidence developed at a full and fair hearing. Price v. Wainwright, 759 F.2d 1549, 1551-52 (11th Cir.1985). Without the record of the competency hearing in the Leon County case before it, however, the district court could not have determined that the Leon County court applied the correct legal standard and that its conclusion was supported by substantial evidence. Consequently, even assuming arguendo that the Leon County court’s determination of Bundy’s competency to stand trial is relevant to this case and is otherwise admissible in this proceeding, the district court’s reliance on the Leon County court’s finding of competency was improper.

Second, the district court improperly weighed the evidence in the record. Although defense counsel’s failure to question at trial his client’s competency can be highly persuasive evidence that the petitioner’s competence to stand trial was not in doubt, Adams, 764 F.2d at 1360; Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979), the district court unduly emphasized defense counsel’s failure to do so here. As indicated, the trial court in the Leon County case determined that Bundy was competent to stand trial. Because this case and the Leon County prosecution were contemporaneous and because a competency claim in this case would have rested on much of the same evidence that the Leon County court apparently rejected, defense counsel may have concluded that the trial court here also would have denied any relief on a competency claim. He could have reached that conclusion even though he seriously doubted Bundy’s competency to stand trial. Therefore, because trial counsel’s failure to raise this claim gives rise to conflicting inferences, the district court attached too much weight to the failure to raise this claim at trial.

In contrast, the district court seemingly ignored strong indicia of Bundy’s incompetence to stand trial. After the sentencing jury recommended the death sentence, defense counsel offered to the court the report of Dr. Tanay. The trial court in the Leon County case appointed Dr. Tanay, a clinical psychiatrist, to examine Bundy. Dr. Tanay interviewed Bundy and defense counsel in the Leon County case and examined Bundy’s behavior during police interrogations and in the courtroom. As a result, Dr. Tanay concluded that Bundy “lacks a rational understanding of what is facing him” and that he probably lacks “sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding” and recommended that the court conduct an inquiry into Bundy’s competency to stand trial. Such evidence — the uncontradicted opinion of a qualified psychiatrist directed expressly towards the relevant legal standard — is far more significant than defense counsel’s failure to raise this claim at trial. The district court, however, failed even to mention Dr. Tanay’s report.

In addition, the record contains several instances in which Bundy apparently ignored the advice of his counsel such as when he gave statements to the police and when he reneged on the plea agreement. Furthermore, despite his counsel’s urging to the contrary, Bundy refused to offer any mitigating evidence to the sentencing jury. Instead, Bundy insisted on performing a mock wedding ceremony with his fiancee before them. Such conduct standing alone may not constitute a “history of pronounced irrational behavior” warranting a competency hearing. Pate, 383 U.S. at 386, 86 S.Ct. at 842. However, a court must consider the aggregate effect of the indicia of a defendant’s incompetence. Drope v. Missouri, 420 U.S. 162, 179-80, 95 S.Ct. 896, 907-08, 43 L.Ed.2d 103 (1975). Bundy’s behavior throughout this prosecution reinforces Dr. Tanay’s conclusion that Bundy lacked a rational understanding of the case against him and that Bundy could not rationally consult with counsel. We believe that the district court gave too little weight to that fact.

Furthermore, it is highly significant that both defense counsel and the state moved for a competency hearing in the Leon County case after Bundy refused to accept a joint plea offer. Bundy’s behavior in rejecting that plea offer was central to the state’s decision to request a competency hearing in the Leon County case. Because the joint plea agreement covered both this case and the Leon County case, the trial judge in this case attended the hearing where Bundy theatrically rejected the plea offer. Bundy’s behavior at that hearing, atop his already suspect behavior, sufficed to question seriously his competency to stand trial in the Leon County case. It has the same effect here.

Finally, the district court erred in denying a hearing on the ground that, because Bundy did not raise this claim at trial, granting him a hearing now would be a “perversion of justice.” A defendant cannot waive his right not to stand trial if he is incompetent. Pate, 383 U.S. at 384, 86 S.Ct. at 841; Adams, 764 F.2d at 1359. Thus, a defendant can challenge his competency to stand trial for the first time in his initial habeas petition and, if he presents facts raising a legitimate doubt as to his competency to stand trial, he is entitled to an evidentiary hearing in the district court. See, e.g., Price v. Wainwright, 759 F.2d 1549, 1553 (11th Cir.1985); Bolius v. Wainwright, 597 F.2d 986, 988 (5th Cir.1979). But see Thomas v. Wainwright, 788 F.2d 684, 688 (11th Cir.1986) (petitioner not entitled to hearing on competency claim raised in second habeas petition where claim was raised at trial and no excuse exists for failure to raise it in first habeas petition).

We do not suggest in any way, however, that Bundy was incompetent to stand trial. That determination can be made only after a full and fair evidentiary hearing. We hold simply that the district court’s finding that Bundy failed to present evidence sufficient to warrant an evidentiary hearing on his competency to stand trial is clearly erroneous.

Accordingly, we REMAND this case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy’s competency to stand trial. Furthermore, because of the significant overlap in evidence, we will by separate order, filed contemporaneously with this memorandum opinion, order the competency hearing in the Leon County case CONSOLIDATED with the competency hearing in this case and instruct the district court here to schedule expeditiously and conduct both hearings. We retain jurisdiction over the remainder of this appeal.

ORDER OF CONSOLIDATION

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

BY THE COURT:

For the reasons stated in the memorandum opinion of this Court made and entered in Bundy v. Wainwright, No. 86-3773, it is ORDERED that the competency hearings required in this case and in the Leon County case, Bundy v. Wainwright, No. 86-5509, be and they are hereby consolidated, with the competency hearings in both cases to be conducted by the United States District Court for the Middle District of Florida.

The United States District Court for the Middle District of Florida is DIRECTED to schedule expeditiously and conduct both competency hearings and to file its findings of fact and conclusions of law with this Court.

AMENDING ORDER

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

BY THE COURT:

The joint order entered by the court in these cases on April 2, 1987, consolidating them for purposes of a hearing on competency to stand trial is VACATED.

The last paragraph of the opinion of this court entered in No. 86-3773 on April 2, 1987, p. 568, is VACATED and the following is substituted in lieu thereof:

Accordingly, we REMAND this case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy’s competence to stand trial. The court shall schedule expeditiously and conduct such competency hearing and file its findings of fact and conclusions of law with this court. We retain jurisdiction over the remainder of this appeal.

In No. 86-5509, p. 568, it is ORDERED that the proceedings shall be expedited. Should the district court in that case determine that a competency hearing is required, and the court has not yet completed the competency hearing required in No. 86-3773, either party to No. 86-5509 may petition this court to re-consolidate the two cases for purposes of determining competence to stand trial, and this court reserves jurisdiction to act on such a request.

[OPINION BY PER CURIAM: type=rehearing]

ON PETITION FOR REHEARING

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

Respondent-appellee Richard L. Dugger has filed a petition for rehearing and suggestion for rehearing en banc of this court’s April 2, 1987 opinion in the above-captioned case. In point I of the petition, the appellee contends that we erred in remanding the case to the district court for an evidentiary hearing on the petitioner-appellant’s competency to stand trial because our decision to remand was predicated on a mistaken belief that the transcript from a state court competency hearing was not filed with the district court prior to its rejection of Bundy’s petition for a writ of habeas corpus.

Upon further review of the record in this case, we acknowledge that the transcript from the state court competency hearing was indeed filed with the district court prior to its rejection of Bundy’s petition and that we were mistaken in believing otherwise. The transcript was not filed with the rest of the state court record on November 4, 1986, but was attached as an exhibit to the state’s response to Bundy’s Rule 3.850 motion. All of the papers relating to Bundy’s Rule 3.850 proceedings were filed on November 17, 1986, the same day that the district court ruled on Bundy’s habeas petition.

That error notwithstanding, however, we conclude that there remains sufficient evidence in the record to require the district court to hold an evidentiary hearing on Bundy’s competency to stand trial. While the addition of the evidence in the state competency proceeding possibly makes this a closer question, our review of the entire record still convinces us that the district court erred in concluding that Bundy was not entitled to an evidentiary hearing on his competency claim.

Accordingly, Dugger’s petition for rehearing is DENIED.

NOTES TO THE OPINION

During the time Bundy was awaiting trial in this case, he was convicted and sentenced to death for the murder of two Chi Omega Sorority members in Tallahassee (“Leon County case”). Bundy v. State, 455 So.2d 330 (Fla.1984). After Bundy reneged on a plea agreement covering both this case and the Leon County case, the trial court in the Leon County case, upon both the state’s and defense counsel’s request, conducted a competency hearing. As a result of that hearing, the Leon County court found Bundy competent to stand trial. In his habeas petition challenging the Leon County conviction, Bundy claims that he was denied a full and fair competency hearing. This Court has recently remanded Bundy’s habeas challenge in that case to the district court for proper consideration under 28 U.S.C.A. § 2254. Bundy v. Wainwright, 808 F.2d 1410 (11th Cir.1987).

We emphasize that the inquiry here is limited to whether defense counsel suspected that his client was incompetent to stand trial. Whether the defendant believed he was competent to stand trial is irrelevant for, if a defendant is incompetent to stand trial, his belief that he is able to do so is without import. Cf. Pate, 383 U.S. at 384, 86 S.Ct. at 841 (”[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial."). We note also that any instruction from Bundy to his trial counsel not to challenge his competency does not foreclose our inquiry. If defense counsel suspects that the defendant is unable to consult with him " ‘with a reasonable degree of rational understanding,’” Dusky, 362 U.S. at 402, 80 S.Ct. at 789, he cannot blindly accept his client’s demand that his competency not be challenged. See Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986) (defense counsel cannot "blindly follow” defendant’s instructions concerning his defense, especially where counsel suspects defendant’s judgment impaired by "mental difficulties”). Therefore, defense counsel’s failure to challenge Bundy's competency may have probative value even though Bundy instructed him not to raise such a claim.

In addition to the contention discussed above, the state also argues that we erred in remanding this case for an evidentiary hearing because we "misapprehended or overlooked” the legal significance of Bundy’s purported waiver of his right to raise a claim of incompetence. We reject this contention and adhere to the portion of our April 2, 1987 opinion addressing the issue of waiver.

850 F.2d 1402, decided July 7, 1988

Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

No. 86-3773.

United States Court of Appeals, Eleventh Circuit.

July 7, 1988.

Polly Nelson, Wilmer, Cutler and Pickering, James E. Coleman, Jr., John Byron Sandage, Andrew James Munro, Washington, D.C., for petitioner-appellant.

Mark Menser, Asst. Atty. Gen. of Fla., Dept, of Legal Affairs, Tallahassee, Fla., Raymond L. Marky, John M. Koenig, Jr., Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellee.

Before VANCE, KRAVITCH and JOHNSON, Circuit Judges.

[OPINION BY JOHNSON, Circuit Judge: type=majority]

JOHNSON, Circuit Judge:

Theodore Robert Bundy was convicted and sentenced to death in Florida for the murder of Kimberly Leach. On direct appeal, the Florida Supreme Court affirmed the conviction and sentence. Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). The Governor of Florida signed a death warrant scheduling Bundy’s execution for November 18,1986. On November 17, Bundy was unsuccessful in state post conviction and habeas corpus proceedings. Bundy v. State, 497 So.2d 1209 (Fla.1986).

Bundy immediately filed an application for a stay of execution, a petition for a writ of habeas corpus, and an application for a certificate of probable cause with the United States District Court for the Middle District of Florida. On November 17, the district court, having reviewed the trial record in advance, dismissed the petition without a hearing and denied the applications for a stay of execution and for a certificate of probable cause. Bundy v. Wainwright, No. 86-968-CIV-ORL-18 (M.D.Fla. Nov. 17, 1986). This Court subsequently granted a certificate of probable cause and a stay of execution pending appeal. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986) (Bundy II), application to vacate stay denied,_U.S_, 107 S.Ct. 483, 93 L.Ed.2d 426 (1986).

After briefing and oral argument, this Court remanded the case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy’s competence to stand trial. Bundy v. Dugger, 816 F.2d 564 (11th Cir.), cert. denied, — U.S. -, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). On remand, the district court conducted an evidentiary hearing and concluded that Bundy was competent to stand trial. Bundy v. Dugger, 675 F.Supp. 622 (M.D.Fla. 1987). This Court ordered supplemental briefing on the competence to stand trial issue and heard oral argument.

I. Abuse of the Writ

We expressly state at the outset a conclusion implicit in the earlier decision of a limited remand: Bundy’s first federal habeas corpus petition should not be dismissed for abuse of the writ. Typically, “abuse of the writ” principles apply to second or successive petitions that present claims that were raised, or that could have been raised, in previous petitions. See 28 U.S.C. § 2554 Rule 9(b); see also Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984). Although this is Bun-dy’s first petition, the district court considered the petition abusive:

At approximately 2:30 p.m. on November 17, 1986, sixteen and one half hours prior to the time Mr. Bundy is scheduled to be executed, the petitioner filed a 183 page petition for writ of habeas corpus asking this [C]ourt to stay the execution and grant relief to the petitioner. This Court considers the petition filed under these conditions to be abusive. Davis v. Wainwright, [— U.S.-] 107 S.Ct. 17 [92 L.Ed.2d 783] (1986).

Slip op. at 1.

We disagree. Even assuming ar-guendo that a first petition could be dismissed as an abuse of the writ because it was filed on the eve of execution, this case does not present an abusive situation. The United States Supreme Court denied certio-rari review of Bundy’s direct appeal on October 14, 1986. On October 21, the Governor of Florida signed a death warrant scheduling Bundy’s execution for November 18. Bundy began state postconviction and habeas proceedings on November 7 and those proceedings concluded on November 17. Bundy then filed his federal petition. Under these facts, the filing on the eve of execution does not constitute abuse of the writ.

II. Competence to Stand Trial

As set forth above, the district court, after a limited remand from this Court, conducted an evidentiary hearing and concluded that Bundy was competent to stand trial. Bundy v. Dugger, 675 F.Supp. 622 (M.D.Fla.1987). We begin our analysis by setting forth the applicable legal standards central to our review of the district court’s conclusion. First, “[t]he legal test for mental competency is whether, at the time of trial and sentencing, the petitioner had ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and whether he had ‘a rational as well as factual understanding of the proceedings against him.’ ” Adams v. Wainwright, 764 F.2d 1356, 1359-60 (11th Cir.1985) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (I960)), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). Second, Bundy had the burden of proof on remand: “At the ensuing district court hearing, petitioner [the defendant] bears the burden of proving the fact of incompetency by a preponderance of the evidence.” Price v. Wainwright, 759 F.2d 1549, 1553 (11th Cir.1985) (citing Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir.1978) (en banc)). Third, the standard of appellate review provides:

Before the court can meaningfully apply [the Dusky ] legal standard ... it must often ascertain the nature of petitioner’s allegedly incapacitating illness. It is at this initial juncture that expert testimony is particularly valuable, for the existence of even a severe psychiatric defect is not always apparent to laymen. Because of this difficulty in detecting medical diseases, the trial court may find it necessary to make an initial factfind-ing on whether the accused suffers from a mental defect at all. Although sometimes dispositive of the ultimate competency question, this medical inquiry is properly classified as pure factfinding and reviewable only under the clearly erroneous standard.

Once it is established that an individual suffers from a clinically recognized disorder, the court must decide whether such condition rendered the accused incompetent under the Dusky formulation.... [T]his second stage determination of legal incompetency is subject to a review more stringent than the clearly erroneous rule. To insure protection of valuable constitutional rights, this court is bound to take a hard look at the ultimate competency “finding.”

Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).

Bruce suggests that a district court’s determination of competency should proceed in two parts: (1) Does the defendant suffer from a clinically recognized disorder? and (2) if so, did that disorder render the defendant incompetent under the Dusky standard? In the present case, Bundy argued that he suffered from bipolar mood disorder. Although the district court did not segregate its analysis as suggested by Bruce, our reading of the district court’s opinion, particularly the conclusion, indicates that the district court determined that, even if Bundy otherwise suffered from bipolar mood disorder, the disorder was not manifesting itself so as to affect his competence to stand trial. Consequently, pursuant to Bruce, we take a “hard look” at the ultimate competency “finding.”

Bundy argues that, although he had a factual understanding of the proceedings against him, he lacked a rational understanding of those proceedings and a rational understanding necessary to consult with his lawyer. We have undertaken a detailed review of the record and given a “hard look” to the district court’s conclusion of “competency.” Based upon the record evidence of the testimony (including depositions) at the evidentiary hearing and the associated exhibits, we hold that the district court’s findings of historical fact were not clearly erroneous, see Amadeo v. Zant, — U.S. -, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988), and thus we will not reiterate the district court’s findings here. We do, however, highlight the record evidence that leads us to conclude, after a “hard look,” that Bundy was competent to stand trial.

Dr. Dorothy Lewis and Dr. Emanuel Ta-nay, both psychiatrists, testified that Bun-dy was incompetent to stand trial. Dr. Charles Mutter and Dr. Umesh Mhatre, both psychiatrists, testified in rebuttal for the State. The district court credited the testimony of Drs. Mutter and Mhatre. We agree with the district court’s observation that their testimony better accorded with the testimony of other witnesses and the associated exhibits.

For example, Judge Wallace Jopling, the presiding judge at the Lake City trial, and prosecutors George Dekle and Jerry Blair testified about Bundy’s actions at trial. This testimony indicates that Bundy’s actions were inconsistent with the actions of a person manifesting bipolar mood disorder.

In addition, the exhibits from the hearing, largely ignored by Bundy in his supplemental brief, indicate that Bundy was competent to stand trial. The videotape of Bundy’s argument to Judge Jopling prior to sentencing shows that Bundy delivered a cogent, well-reasoned argument. Bundy focused on the effect of pretrial publicity on the jury and argued that the jury was overwhelmed more by the quantity, than the quality, of the state’s evidence. Bundy can be seen flipping pages of a legal pad as he goes through his argument.

The tapes made by Bundy while awaiting the verdict and shortly after the verdict strongly demonstrate that Bundy had a rational understanding of the proceedings. For example, on tape I (recorded while the jury was deliberating), Bundy describes his displeasure at one of the trial judge’s instructions, evaluates some of the evidence against him, and criticizes the state’s closing argument for referring to facts not in evidence. On tape G (recorded two hours after the jury returned its guilty verdict), Bundy recalls that after closing argument he bet members of the defense team that the jury would be back within three hours with a guilty verdict: “I was attempting to protect myself — insulate myself from the terribly harsh consequences of a guilty verdict....” On that tape, Bundy recalls evaluating the trial proceedings: “I can remember throughout the course of the trial, my counsel, myself, speculating on the reactions of jurors to state witnesses, the reactions of jurors to defense witnesses, speculating on the ineffectiveness of certain state witnesses, and the convincing qualities of our witnesses.” On tape H (recorded on the morning after the jury returned its guilty verdict), Bundy describes how, when he woke up that morning, “I immediately began thinking about the statements I’m going to make to the jury during the penalty phase and the statements I’m going to make to the judge when he sentences me. Right now my concern lies with just what the tenor of those comments should be.” Consequently, a “hard look” at the record evidence supports the conclusion that Bundy was competent to stand trial.

III. Choice of Counsel

Bundy argues that he was denied his Sixth Amendment right to choice of counsel. This claim overlaps with Bundy’s claim that his counsel provided ineffective assistance of counsel by failing to raise this claim on direct appeal. Shortly after his indictment, Bundy asked the trial court to grant the motion of Georgia attorney Millard Farmer to be admitted pro hac vice. The trial court denied the motion after conducting an evidentiary hearing and allowing oral argument. See State v. Bundy, No. 78-169-CF (Fla.Cir.Ct.Columbia County Sept. 22, 1978) (Jopling, J.) (R. 14,117; vol. 156, app. 37). On direct appeal, Bun-dy did not claim that he was denied the counsel of his choice. Bundy then raised this claim in state postconviction proceedings. The Florida Supreme Court found this claim procedurally barred because it could have been raised on direct appeal. See Bundy, 497 So.2d at 1210. The Court also found Bundy’s related ineffective assistance of appellate counsel claim to be without merit. Id. at 1211.

Bundy then raised the choice of counsel claim and the related ineffective assistance of appellate counsel claim in his federal habeas corpus petition. The district court determined that the choice of counsel claim was procedurally defaulted, see slip op. at 9, and the related ineffective assistance of counsel claim was not a basis for relief because the district court had denied relief on the merits of the choice of counsel claim. See slip op. at 12.

We conclude that Bundy’s failure to raise the choice of counsel claim on direct appeal constitutes procedural default. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Consequently, Bundy must show both cause for noncompliance with the state rule and actual prejudice resulting from the alleged constitutional violation. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2665, 91 L.Ed.2d 434 (1986).

Bundy contends that ineffective assistance of his appellate counsel satisfies the cause requirement. See Carrier, 477 U.S. at 488, 106 S.Ct. at 2646 (“Ineffective assistance of counsel ... is cause for a procedural default.”). We disagree as we do not find Bundy’s counsel ineffective. The Supreme Court’s decision in Smith informs our analysis. The Supreme Court reasoned that, when viewed in light of state law at the time of direct appeal, the decision not to raise the claim “fell well within the ‘wide range of professionally competent assistance’ required under the Sixth Amendment to the Federal Constitution.” Smith, 477 U.S. at 536, 106 S.Ct. at 2667 (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)); see id. at 535, 106 S.Ct. at 2667 (“Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984).”); see also Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987 (1983) (recognizing that appellate counsel needs latitude in selecting issues to raise on appeal).

In his direct appeal in the Leon County case, which antedated the direct appeal in the present case, Bundy raised the choice of counsel claim and the Florida Supreme Court found it without merit. See Bundy v. State, 455 So.2d 330, 347-48 (Fla.1984). Consequently, pursuant to Smith, Bundy’s counsel was not ineffective for not raising the choice of counsel claim on direct appeal. Finally, this is not “an extraordinary case” where the writ should be granted even absent a showing of cause. See Carrier, 477 U.S. at 496, 106 S.Ct. at 2660; Smith, 477 U.S. at 537-39, 106 S.Ct. at 2668-69.

IV. Ineffective Assistance of Counsel

Bundy argues that he received ineffective assistance of counsel at trial on a number of grounds. The Florida Supreme Court, see Bundy, 497 So.2d at 1210, and the district court, see slip op. at 9-12, held this claim without merit. We affirm the district court because none of the asserted grounds satisfies both the performance and prejudice prongs enunciated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Bundy first complains of ineffectiveness of trial counsel in relation to the investigation concerning fiber evidence, the hearing on the motion in limine to exclude such evidence, the failure to object to the conclusions testified to by the state’s expert witness, and the failure to have a defense expert testify regarding the fibers. We have reviewed the record evidence and, particularly based upon the cross-examination regarding the source of the van’s carpet, the users of the van, and the clothes worn in the van; the arguments on the motion in limine; the cross-examination of the state’s expert, and the examination of witnesses recalled as part of the defense’s presentation, we conclude that Bundy has failed to satisfy Strickland’s performance prong. In addition, in ruling on this claim in the state postconviction proceeding, the trial court stated that it would have permitted the evidence anyhow. Consequently, it does not appear that the prejudice prong was met.

Bundy next argues that he received ineffective assistance of counsel in connection with the plea agreement. A review of the record again demonstrates that Bundy has not satisfied the performance prong. In addition, Bundy asserts that counsel had to disclose damaging information to the state in the course of negotiations. Bundy does not allege what that information was or whether it was used at trial. Consequently, this assertion does not raise a colorable showing of prejudice sufficient to trigger an evidentiary hearing.

Bundy next claims that he received ineffective assistance of counsel because no evidence was presented at the penalty phase of trial that he was suffering from a mental disorder. As a related claim, Bun-dy argues that he was denied effective assistance of counsel by counsel’s failure to investigate an insanity defense. The record indicates an insanity defense was investigated and that Bundy rejected any suggestion that such a defense be presented. In addition, Bundy would not admit complicity of the crimes upon which he was convicted. Based upon Bundy’s actions and the actual presentation at the penalty phase, we cannot say that Bundy has satisfied the performance prong. The record also indicates that, even if such evidence were presented, the state could produce countering evidence and thus, in light of the aggravating circumstances, no prejudice resulted.

Finally, Bundy argues that he received ineffective assistance of counsel because no challenge was made to the use of prior convictions as aggravating circumstances. Bundy does not suggest any basis for a challenge to the Utah convictions. We cannot say that Bundy has satisfied the performance prong as to his Leon County convictions. That conclusion is buttressed by the Florida Supreme Court’s subsequent affirmance of those convictions. In addition, we do not believe Bundy has satisfied the prejudice prong. Three aggravating circumstances remain independent of the Leon County convictions.

V. Faretta Inquiry

Bundy claims that the trial court failed to conduct a proper inquiry into whether he should have been allowed to represent himself during critical stages of the prosecution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This claim overlaps with Bundy’s claim that his counsel provided ineffective assistance of counsel by failing to raise this claim on direct appeal.

On September 21, 1978, after the trial court orally denied the motion for Farmer to appear pro hoc vice, the trial court asked Bundy if he had other counsel to represent him. In relevant part, Bundy replied:

[Sjeeing that the Court in its wisdom has denied me representation by Mr. Farmer, I will proceed pro se.

In the first instance, I guess I should ask for leave to proceed in proper person and submit in support of my motion the case of Anthony Pasquale Faretta versus the State of California 42[2] U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562], case decided in 1975.

Supp. R3:144-45 (footnote omitted). The trial court permitted Bundy to proceed pro se. Subsequently, at the request of the state’s attorney, the trial court asked Bun-dy what education he had. Bundy replied in relevant part:

I have a Bachelor of Science in Psychology from the University of Washington and two years of law school. I think, however, if the Court will read Faretta, the United States Supreme Court has said that the legal background or legal training of a defendant who wishes to represent himself is not an issue. If the man or woman wishes to represent himself or herself, understandingly, knowingly and voluntarily expresses the desire to do so, he or she may exercise that Sixth Amendment right applied to the States through the Fourteenth Amendment and so I don’t really think that an inquiry into my background, beyond my stating that I knowingly and voluntarily and understandingly take this step, is necessary.

Id. at 147-48. On June 21, 1979, Bundy withdrew his waiver of counsel and accepted Victor Africano as his attorney in the Lake City case. R157:14,383. Africano served as Bundy’s attorney from that pretrial point to the conclusion of the direct appeal.

On direct appeal, Bundy did not claim he was denied a proper Faretta hearing. Bundy then raised this claim in state post-conviction proceedings. The Florida Supreme Court held:

We find that the appellant’s fourth claim [i.e., the Faretta inquiry] could have been raised on direct appeal and is therefore barred from consideration. Even if we were to examine the claim, however, we would find it lacking in substance. The trial court conducted an inquiry into appellant’s ability to act as his own counsel prior to allowing him to represent himself, and during this inquiry appellant himself alerted the trial court to the teachings of Faretta. We may not now reverse the trial court’s finding of appellant’s ability to pursue his own representation.

Bundy, 497 So.2d at 1210. The Court also found Bundy’s related ineffective assistance of appellate counsel claim to be without merit. Id. at 1211. Although the state asserted before the district court that the Faretta inquiry claim was subject to the procedural default doctrine, the district court did not mention that doctrine, but rather concluded that Bundy was not entitled to relief on the merits. See slip op. at 12-13.

On appeal, the state renews its argument that the claim is subject to the procedural default doctrine. When it is clear that a state court is addressing a particular claim (i.e., the Florida Supreme Court’s reference to “the appellant’s fourth claim”) and the state court expressly states that the claim is barred from consideration, we conclude that the state court has not excused the procedural default when it proceeds alternatively and hypothetically to address the merits of the claim. Consequently, we conclude that Bundy’s failure to raise the Faretta inquiry claim on direct appeal constitutes procedural default. See Murray v. Carrier, supra. Bundy thus must show both cause for noncompliance with the state rule and actual prejudice resulting from the alleged constitutional violation. Smith, 477 U.S. at 533, 106 S.Ct. at 2665.

Bundy again contends that ineffective assistance of his appellate counsel satisfies the cause requirement. See Carrier, 477 U.S. at 488, 106 S.Ct. at 2646 (“Ineffective assistance of counsel ... is cause for a procedural default.”). Again, we rely on the Supreme Court’s analysis in Smith to conclude that Bundy has not met the cause requirement. In light of Bundy’s citation of the Faretta decision to the trial court, his comments to the trial court, and Africa-no’s serving as Bundy’s attorney from well before trial to the conclusion of direct appeal, “the decision not to press the claim on appeal was [not] an error of such magnitude that it rendered counsel’s performance constitutionally deficient.” Smith, 477 U.S. at 535, 106 S.Ct. at 2667; see also Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987 (1983) (recognizing that appellate counsel needs latitude in selecting issues to raise on appeal).

Alternatively, if the procedural default doctrine did not preclude us from examining the merits of the Faretta inquiry claim, we would conclude that Bundy was not entitled to relief on this ground. This Circuit generally requires that a trial judge conduct a waiver hearing to make sure that the accused understands the risks of proceeding pro se. See Jackson v. James, 839 F.2d 1513, 1516 (11th Cir.1988) and cases cited therein. In the present case, the passage quoted above indicates that the trial court did not inform Bundy of the disadvantages of proceeding pro se. Bundy, however, cited Faretta to the trial court and asserted that he was “knowingly and voluntarily and understanding^ tak[ing] this step.” We do not decide whether these facts constitute a “rare” case in which an exception to the hearing requirement will be made. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064-68 (11th Cir.1986). Rather, we conclude that any error by the trial court was harmless. As set forth above, well before trial in the Lake City case, Bundy accepted Victor Af-ricano as his attorney. Africano served as Bundy’s attorney from that point to the conclusion of direct appeal. Accordingly, the Faretta inquiry claim and the related ineffective assistance of appellate counsel claim are without merit.

VI. Race of the Victim

Bundy argues that the Florida death penalty is unconstitutionally applied because it is disproportionately imposed in cases, such as the present case, where the victim is white. On collateral review, the Florida Supreme Court held that this claim was without merit. See Bundy, 497 So.2d at 1210-11. Consequently, the procedural default doctrine does not apply.

The district court also held that this claim was without merit. See slip op. at 13. On appeal, Bundy argues that the district court erred in denying him an eviden-tiary hearing on this claim. We disagree. Bundy relies solely on studies allegedly showing systematic discrimination on the basis of the victim’s race. This Court repeatedly has rejected these studies as grounds for an evidentiary hearing or relief. See Funchess v. Wainwright, 788 F.2d 1443, 1445-46 (11th Cir.), cert. denied, 475 U.S. 1133, 106 S.Ct. 1668, 90 L.Ed.2d 208 (1986); Thomas v. Wainwright, 767 F.2d 738, 747-48 (11th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986), and cases cited therein. In addition, Bundy points to no evidence that the decision makers in his case acted with discriminatory purpose. See McCleskey v. Kemp, — U.S. -, 107 S.Ct. 1756, 1765-1770, 95 L.Ed.2d 262 (1987).

VII. Hypnotically Refreshed Testimony

Bundy argues that the use of Clarence L. “Andy” Anderson’s hypnotically enhanced testimony violated his Sixth Amendment right to confrontation and his Fourteenth Amendment due process right to a fair trial. Anderson was the state’s only eyewitness to the abduction of Kimberly Leach on February 9, 1978. On July 18, 1978, Anderson first went to the police because the profile of a person he had seen on a television newscast bore a striking resemblance to the man he had earlier observed with a girl near the Lake City Junior High School. Anderson was hypnotized twice in order to enhance his recollection. After conducting a hearing and taking testimony, the trial court denied Bundy’s pretrial motion to suppress Anderson’s testimony. The denial was without prejudice to Bundy’s right to object at trial to specific portions of that testimony. R145:13,387; app. 22. At trial, Anderson made an in-court identification of Bundy as closely resembling the man he saw and, from a photograph introduced into evidence, identified Kimberly Leach as the girl.

On direct appeal, the Florida Supreme Court held “that hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis.” Bundy, 471 So.2d at 18. Relying on harmless-constitutional-error cases of the United States Supreme Court, the Florida Supreme Court went on to conclude that the admission of Anderson’s hypnotically refreshed testimony was harmless error. Id. at 19. The district court held this claim without merit. See slip op. at 13-14.

We first address Bundy’s claim that admission of Anderson’s testimony violated the Confrontation Clause of the Sixth Amendment. In Rock v. Arkansas, — U.S. -, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court held that a state’s per se rule excluding hypnotically refreshed testimony impermissibly infringed on a criminal defendant’s right to testify. Although the Supreme Court expressly did not address the issue presented here, see id. at 2712 n. 15, its reasoning informs our analysis. The Court stated that “it has not been shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility” such that a per se ban is warranted. Id. at 2714. The Court recognized that cross-examination remained as an effective tool for revealing inconsistencies, id., even though hypnosis may lead to the introduction of inaccurate memories, “making effective cross-examination more difficult.” Id. at 2713.

Rock thus teaches that, although hypnosis may make effective cross-examination more difficult, it does not always make it impossible, thereby preserving the opportunity for effective cross-examination safeguarded by the Sixth Amendment. See Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (“[T]he Confrontation Clause guarantees the opportunity for effective cross-examination....” (emphasis in original)); accord Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Consequently, we decline to hold that the Confrontation Clause requires a per se ban on the admission of hypnotically refreshed testimony.

We thus examine whether, on the facts of the present case, a Confrontation Clause violation occurred. “The sixth amendment confrontation clause is satisfied where sufficient information is elicited from the witness from which the jury can adequately gauge the witness[’] credibility.” United States v. Burke, 738 F.2d 1225, 1227 (11th Cir.1984). Such information was elicited here. In particular, Anderson admitted that the hypnotic sessions he underwent, to some degree, had an effect on the testimony he was giving. Moreover, defense counsel explored why Anderson took so long to come forward; Anderson’s activities on the morning of February 9th; the relationship between the prosecution’s search of Anderson’s work schedule records and Anderson’s understanding that February 9th was the date of Kimberly Leach’s disappearance; Anderson’s identifying Bundy on television but never participating in a photo line-up or a live line-up; Anderson’s travelling the route from the fire station past Lake City Junior High School many times before; and the discrepancies between Anderson’s trial testimony and his statements prior to hypnosis. The record does not demonstrate that the trial court impermissibly limited the cross-examination of Anderson. In addition, Bundy examined the two hypnotists concerning their qualifications. Finally, the tape recordings of the two sessions were played to the jury, each juror received a transcript of those sessions, and Bundy presented an expert witness who addressed what he characterized as the flaws in those sessions. In light of these facts, Bundy certainly had the opportunity for effective cross-examination and no Confrontation Clause violation occurred.

We next examine Bundy’s claim that admission of Anderson’s testimony deprived Bundy of his Fourteenth Amendment due process right to a fair trial. We note at the outset that Rock rejects the suggestion that hypnotically refreshed testimony is so unreliable that a per se ban on such testimony is warranted. Accordingly, we must determine whether, on the facts in the present case, the hypnotically refreshed testimony was so unreliable as to violate due process. We conclude that the use of Anderson’s testimony accorded with the dictates of due process.

In the present case, as set forth above, Anderson first went to the police on July 28,1978, because the profile of a person he had seen on a television newscast bore a striking resemblance to a man he had earlier observed with a girl near the Lake City Junior High School. Before going to the police, Anderson had noticed a resemblance between his niece and Kimberly Leach and thought, before seeing Bundy’s picture on television, that Kimberly Leach was the girl he had seen: “I probably knew it for some time. Exactly when I realized that it was the Leach girl, I have no earthly idea. I just would not admit it to myself.” R21:4151. Prior to coming to the police, Anderson had thought what he saw was what he testified to at trial. Indeed, during the search for Kimberly Leach, Anderson expressed his thoughts to a fishing companion: “And I said, I don’t recall specifically what I said, but I stated that I may have seen the guy that picked the Leach girl up or I may have seen someone that could have picked up the girl.” Id. at 4152.

Anderson gave a statement at the police station. He described the man he had seen as of medium build, 5-foot-7 to 5-foot-10, and having medium or darker brown wavy hair. The man wore a light shirt or jacket. Anderson described the girl as 12 or 13 years old with shoulder-length brown hair parted in the middle. She wore dungarees or slacks and a dark pullover, and carried a sweater, jacket, or large pocketbook. He said the man led the girl, by her elbow, around the front of the van and helped her in. The girl had an unhappy look as if she had been in trouble at school. The van was white and its rear windows were covered so that Anderson could not see the man after he entered the van. He described his observation as taking place in April.

After Anderson gave his statement, the prosecutor asked Anderson if he would undergo hypnosis. Anderson agreed. Thirty to forty-five minutes later, Imogene Keene, a hypnotist, arrived. Prior to hypnosis, Anderson repeated his statement. Keene then began the procedure to hypnotize Anderson. The session was tape recorded. (The tape recording was played to the jury and each juror received a transcript of the session.) The prosecutor and police investigator were also present. Anderson testified at trial that he did not believe he was hypnotized. He recalled that his neck bothered him and affected his concentration. He remembered that people kept walking in and out of the area. The descriptions offered by Anderson suggest that he was not hypnotized. For the most part, Anderson recited the facts he had given in his statement to the police. Although he initially stated that he could not see the girl’s face, in response to a question, he stated that the girl was crying. In addition, Anderson described the color of the van’s license plate, although the true color was different.

At the conclusion of this first session, the prosecutor asked if Anderson would undergo hypnosis again. Anderson agreed and a second session took place three days later on July 31. After the first session, the prosecutor or police investigator suggested that Anderson go home and think about the date of his observation. Prior to the second session, Anderson recalled the date of his observation as February 9th:

[A.] ... I talked it over with my wife. I was very concerned about it, very upset about it. I didn’t even know what day the girl was missing. I believe my wife said it was around the time of our little girl’s birthday and then it began to dawn on me as I went over it in my mind that I saw the little girl and the man coming home from the fire department the day after my little girl’s birthday.

Q. What was you little daughter’s birthday?

A. February the 8th.

Q. Had you planned any events in connection with her birthday or what caused you to focus attention on her birthday? A. My wife had planned a party where [sic] some of her friends and a movie, and I was looking forward to, you know, going to the party and taking the kids to the movies, you know, helping chaperone the kids. And I didn’t make it because I was working overtime at the fire station. I got called in quite often that day to work overtime. It seemed like every time I went home, I walked in the door, the phone would be ringing and them asking me to come back down to the fire station and, late that afternoon, I got a call to go back down to the fire station, they had a trip going to Gainesville, and we needed the money, so I went and I called my wife and told her that I’m sorry, go ahead and take the kids to the party and the movie, I wasn’t going to be able to make it.

Q. Okay. What, if anything, happened on February the 9th, after you got home, that allowed you to tie that incident in with your little daughter’s birthday party?

A. I remember going in. I remember feeling guilty about not being with the kids at the party. Well, the first thing I did was eat a piece of my daughter’s birthday cake. I asked my wife to iron me a shirt, a uniform shirt. I think probably eating the cake and just I remember feeling guilty about not making the party makes me remember it as clear as anything else.

Q. Okay. And are you certain in your own mind, as you have testified this morning, on February the 9th is the date that you made those observations that you have described to the Court?

A. Yes, sir.

Q. Now, do I understand your testimony to be that, in between July the 28th and July the 31st, you made this determination?

A. Yes, sir.

R21:4087-89.

On July 31, the second session took place. Anderson, Keene, the prosecutor, the police investigator, Johnny “Jack” Bur-nette, and a stenographer were present. The session was tape recorded. (The tape recording was played to the jury and each juror received a transcript of the session.) In this second session, Burnette, another hypnotist, placed Anderson under hypnosis. Anderson believed he was hypnotized during this session. During this session, Anderson stated, inter alia, that his observation was on February 9; that the man was fairly young (29, 30, or 31), was good looking, and was wearing a white jacket or white pullover with a shirt underneath; that the girl was wearing a blue football jersey with “3” and either “6” or “8” on it; and that the van had clear rear windows through which Anderson could see the man scold the girl. After the session, Anderson “felt better,” but “[t]here are still some things bothering me. I couldn’t definitely identify the man. I couldn’t remember exactly what the man was wearing. There were still some questions that I had that I would like to have been able to answer.” R21:4120.

At trial, Anderson testified in relevant part as follows:

Q. What, if anything, did you observe in the vicinity of Lake City Junior High School on that morning [February 9th] as you travelled to your home?

A. The first thing I noticed was there was a white van parked in the westbound lane of Duval Street, that, as I approached it, several cars had, were going around it. There were still two cars behind the van and then my truck. And I was sitting there waiting for the truck to move or waiting for traffic to clear so I could go around it. And on my left, I noticed a young girl, approximately twelve or thirteen years old, dark hair, shoulder length, parted in the middle. Probably the only reason I noticed this girl was she looked very much like one of my nieces.

Q. Was there anyone with the young girl?

A. Yes, sir. With her was a man, approximately early thirties, had brown hair, you know, light to dark brown hair, was full cut of hair. It was one of the things that I really paid any attention to as far as the man was concerned. It was kind of wavy, but it was full cut, you know, really a nice head of hair.

I got the impression that the young girl was either crying or had been crying. The man had a scowl on his face. And I felt like probably the girl had gotten in trouble at the school or misbehaved in some way and had called her father to come pick her up and take her home. And as I was sitting there, watching them, I remember thinking to myself, you know, the daddy is going to take the little girl home and probably, you know, give her a spanking or something like that.

Q. Would you tell us how the girl was dressed, as you recall?

A. She was wearing a pullover football jersey and probably dungarees.

Q. What was the color of the football jersey?

A. It was dark blue.

Q. Did the jersey have any distinguishing marks or characteristics?

A. Yes, sir. It had some letters on it, “63” or “68”, red-orange, something like that.

Q. Did the girl appear to be carrying anything?

A. Yes, sir. In her left arm, kind of clutched to her chest like this (demonstrating), was a medium-sized object like, so it could have been a pocketbook or a rolled-up jacket or maybe both. I don’t know. The man had her by her left arm, right about the elbow, and he was leading her towards the white van. The little girl was not actually resisting. It was pretty evidence [sic] that, that, you know, she wasn’t really anxious to go. They was, from the sidewalk, probably six to ten feet from the sidewalk when I first saw them. They continued to walk to the sidewalk. He stopped—

Q. Did the man have the girl by the left arm during the entire time that you observed them?

A. Yes, sir. They stopped and a car came by, going east, and they crossed in front of the white van. The man opened the door.

Q. Which door did he open?

A. The door on the passenger side. And helped the girl get in the van, slammed the door, and kind of jogged in front of the van, got in the passenger side, and they drove off.

R21:4063-65.

Q. Were you able to tell how the man was dressed?

A. Yes, sir. He had a pullover sweater, with a shirt underneath the sweater. I don’t recall the exact color of either one of them. The sweater was a neutral color, tan, light grey, something like that. I don’t recall the color of his trousers.

Q. You have described the van as being a white van. Can you give any further description of it. particularly with respect to any windows?

A. All I seen was a, was the very back of it and it had two windows, the rear doors.

Q. Okay. I’m going to have you a photograph, which has been marked for identification as State’s Exhibit J. I ask you to examine this photograph and tell us whether or not that photograph is similar to the white van that you observed on the morning of February the 9th in front of the Lake City Junior High School.

A. Yes, sir, it’s very similar.

Q. Now, after the person placed the girl in the white van and got in on the driver’s side, what happened then?

A. The van drove off, you know, a normal rate of speed. As I said before, there were two vehicles between me and the van. The closest one to the van was a small, dark blue foreign car of some kind. I have no idea what kind.

Q. Did you remain behind the white van?

A. Yes, sir.

Q. And approximately at what distance behind the white van?

A. Two car lengths. We were all fairly close together. Nobody was keeping the proper distance between the vehicles, if I remember correctly. Somewhere between the junior high school and 7th Street, which is roughly seven blocks, six blocks, the small car turned off to the right. I don’t recall what street it turned off. And then the van stopped at the red light at 7th Street.

Q. Were you able to observe the driver as he was stopped at the red light there at 7th Street?

[A]. Okay. When the van stopped at 7th Street, I could see the silhouette of the driver turn towards the passenger side.

Q. Could you see anyone in the passenger side at that point in time?

A. No, sir.

Q. Had the girl been sitting up straight in the seat, do you know of any reason why you could not have seen her at that time?

A. No, sir.

Q. What, if anything, did you see the driver doing?

A. He was gesturing, turned to his right, and moving his head like he was talking, and gesturing with his left hand. Q. And when you say he was turning to his right, that would have been toward the passenger side of the—

A. Toward the passenger side.

Q. How long after that did you lose sight of the van?

A. Approximately two, two and a half blocks, U.S. 90 veers left and West Duval Street continues straight west.

Q. Mr. Anderson, I'm going to hand you a photograph, which is in evidence as State’s Exhibit 1, and I ask you to examine that photograph and tell the members of the jury whether or not you recognize that person depicted.

A. Yes, sir, I do.

Q. Who is that person?

A. It’s the young girl I saw at the school.

Q. On the morning of February the 9th?

A. Yes, sir.

Q. I’m going to ask you, Mr. Anderson, if you will look around the courtroom and tell the members of the jury whether or not you can positively identify the man that you observed leading that young girl from the school ground on February the 9th.

A. No, sir, I’m not absolutely certain.

Q. I ask you then to once again to [sic] look around the courtroom and tell the members of the jury whether or not there is anyone in the courtroom who closely resembles the person that you observed leading the young girl to the white van on the morning of February the 9th.

A. Yes, sir, there is.

Q. Would you point that person out, please?

A. The defendant.

Q. Are you aware of any dissimilarities in the appearance between the person that you pointed out in the courtroom and the person that you saw leading the girl to the van on that morning?

A. No, sir, they were very much alike. R21:4068-73.

We hold that Anderson’s hypnotically enhanced testimony was not so wholly unreliable that its admission violated Bundy’s due process right to a fair trial. Indeed, Anderson’s knowledge independent of the hypnosis sessions defeats the inference that the hypnosis was unduly suggestive. The above recitation of the facts makes clear that, prior to going to the police, Anderson strongly suspected that he had seen Leach’s abduction — a suspicion he shared with a fishing companion. Upon seeing Bundy on television, Anderson’s suspicions grew to a certainty that outweighed his fears of getting involved and sending police on a “wild goose chase.” At this point, Anderson went to the police and gave a statement reflecting his thought that a man resembling Bundy had abducted Kimberly Leach. Independent of hypnosis, Anderson recalled that the date of his observation was February 9th.

We also cannot say that the hypnotically enhanced details of Anderson’s trial testimony were the product of impermissible suggestions or techniques by the hypnotist. Indeed, the jury heard tapes of the two sessions, received transcripts of those sessions, and heard testimony of an expert witness who addressed what he characterized as the flaws in those sessions. Cross-examination was the avenue with which to attack Anderson’s testimony. We have held above that an opportunity for effective cross-examination was available here. That holding buttresses our conclusion that Anderson’s testimony was not so unreliable as to violate Bundy’s due process right to a fair trial.

VIII. Exclusion of Jurors

Bundy argues that the trial court erred in denying his motion to limit death qualification of the jury, permitting such qualification, and excusing for cause jurors who expressed opposition to the death penalty, notwithstanding their ability to vote for guilt or innocence. Bundy argues that, because of the capital sentencing procedures of Florida law, the rule enunciated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and refined by its progeny does not apply. Bun-dy asserts that under Florida law the trial judge solely determines whether a defendant receives a death sentence and that the jury renders an advisory opinion only. Bundy concludes that, because the jury has an advisory role only, Florida lacks the usual state interest in excluding jurors who would automatically vote against the death penalty. As a result, Bundy argues that his interest in a jury composed of a cross-section of the community controls and the trial court erred in excusing those jurors who were unalterably committed to vote against the death penalty.

On direct appeal, the Florida Supreme Court held that it was precluded from ruling on this claim because objections as to this claim were not raised in the trial court. Bundy, 471 So.2d at 19. The district court held that the claim was procedurally barred and, alternatively, without merit. See slip op. at 14.

We conclude that Bundy’s claim is without merit. Supreme Court precedent clearly establishes that a state can exclude for cause a prospective juror whose opposition to the death penalty “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” See, e.g., Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). Bundy attempts to avoid the force of this Supreme Court precedent by characterizing the role of the sentencing jury as advisory under Florida law. We disagree. See Mann v. Dugger, 844 F.2d 1446, 1449-54 (11th Cir.1988) (en banc). As a result, Witherspoon and its progeny apply to jury selection in Florida cases. Because Bundy admitted in his brief on direct appeal, see page 56 of that brief, that the jurors were properly excluded under Witherspoon, this claim is without merit as are any claims that “death qualification” violates the fair cross-section or impartial jury requirements of the Sixth Amendment. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

IX. Frye Test

Bundy argues that the trial court erred in not conducting a sua sponte inquiry into the scientific reliability of fiber and shoe track evidence presented by the state. See Frye v. United States, 293 F. 1013 (D.C. Cir.1923) (expert testimony admissible only if based on well-recognized and generally accepted scientific principles). On direct appeal, the Florida Supreme Court noted that Bundy failed to object at trial and thus the claim was procedurally barred. See Bundy, 471 So.2d at 20. The district court held that the claim failed pursuant to the procedural default doctrine and, alternatively, was without merit. See slip op. at 14-15.

This claim is not procedurally barred. If the trial court truly had an independent duty to conduct a Frye test, then Bundy was not obligated to request a Frye test or to object at trial to the court’s failure to conduct one. Consequently, the Florida Supreme Court improperly refused to consider the merits of this claim, and its mistaken reliance on a procedural bar does not provide an adequate basis for denying federal habeas review.

Although this claim is not procedurally barred, it is without merit. In substance, Bundy seeks to avoid Florida’s contemporaneous objection rule and associated procedural default, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 2d 594 (1977), by requiring that the trial court object sua sponte to the admission of evidence. In Wainwright v. Sykes, 433 U.S. at 86, 97 S.Ct. at 2506, the Supreme Court rejected the suggestion that the trial court had an independent duty to conduct a hearing as to the voluntariness of a defendant’s confession. Similarly, we agree that, even assuming that evidence must meet the Frye test as a matter of constitutional law, the trial court has no independent duty to challenge the evidence and the admission of the evidence must be challenged by the defendant at trial or not at all.

X. Jury View

Bundy claims he was denied due process when his motion for a jury view of the scene around the school was denied by the trial court. On direct appeal, the Florida Supreme Court held that the trial court did not abuse its discretion. See Bundy, 471 So.2d at 20. The district court held that this claim was addressed to an issue of state law and thus was not a basis for federal habeas relief. Alternatively, the district court held that the trial court’s ruling did not deny Bundy fundamental fairness. See slip op. at 15.

We disagree with the district court’s characterization of this claim as addressed to an issue of state law. An evi-dentiary ruling is a cognizable ground for federal habeas corpus relief if it deprived the state court defendant of fundamental fairness. See Jameson v. Wainwright, 719 F.2d 1125, 1126 (11th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2355, 80 L.Ed. 2d 827 (1984). We agree with the district court, however, that the ruling did not deprive Bundy of fundamental fairness. To constitute a denial of fundamental fairness, the evidence at issue must be crucial and highly significant. 719 F.2d at 1127; see Williams v. Kemp, 846 F.2d 1276, 1282 (11th Cir.1988). In the present case, the scene had been significantly altered because of the construction of a four-lane highway. In addition, photographs of the scene were admitted into evidence, and cross-examination as to the scene was allowed. Consequently, denying the jury an actual view of the scene cannot be said to have deprived Bundy of a fundamentally fair trial.

XI. Evidence of Flight

Bundy claims he was denied due process when his motion in limine to exclude evidence of flight was denied by the trial court and when the trial court instructed the jury regarding the evidence of flight. On direct appeal, the Florida Supreme Court relied on federal cases binding on this panel and held that the evidence was properly admitted and that the related instruction was proper. See Bundy, 471 So.2d at 20-21. The district court noted that this claim raised state-law issues and thus was not a basis for federal habeas corpus relief. Alternatively, the district court held that the evidence was properly admitted and that the jury instruction did not render the trial fundamentally unfair. See slip op. at 15-16.

The state presented evidence of two instances of flight by Bundy. The first instance occurred on February 11, 1978 (two days after the abduction of Kimberly Leach) at 1:47 a.m. in Tallahassee, which is approximately 100 miles west of Lake City. In this instance, after being stopped by a police officer, Bundy successfully fled. The second instance occurred on February 15, 1978 (six days after the abduction of Kimberly Leach) at approximately 1:30 a.m. in Pensacola, which is approximately 200 miles west of Tallahassee and 300 miles west of Lake City. After being stopped by a police officer, Bundy began to flee down a street, but was caught and arrested within a few minutes. The trial judge permitted evidence of both instances of flight and, prior to the jury’s deliberations, instructed the jury as follows:

You are instructed that the flight of the defendant is a circumstance which may be taken into consideration with all other facts and circumstances in the evidence and, if you, the jury, believe and find from the evidence beyond every reasonable doubt that the defendant fled for the purpose of avoiding arrest and trial under the charges herein, you may take this fact into consideration in determining guilt or innocence.

R35:6939-40. We find no error in the admission of the evidence of flight and no error in the trial court’s instructions as to that evidence.

XII. Doubling of Aggravating Circumstances

Bundy argues that constitutional error occurred when the trial court relied on Bundy’s conviction in Utah for aggravated kidnapping to find two aggravating circumstances: (1) Bundy was under a sentence of imprisonment when he committed the present crime and (2) Bundy previously had been convicted of a violent crime. On direct appeal, the Florida Supreme Court applied the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and rejected Bun-dy’s claim. See Bundy, 471 So.2d at 22.

The district court recognized the Florida Supreme Court’s reliance on Blockburger and concluded it was “convinced that the [Florida] Supreme Court’s decision on this issue [was] correct.” Slip op. at 16. We agree that Blockburger renders Bundy’s claim without merit. In Blockburger, the Supreme Court stated that “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182. In the present case, each aggravating circumstance clearly has an element different from the other.

XIII. Penalty for Requesting Jury Trial

Based on the state’s original agreement to a life sentence in this case, Afri-cano filed a motion that would have prevented the court from convening the penalty phase and from returning a death sentence. The motion stated that Bundy was unconstitutionally forced to risk death in order to exercise his right to a jury trial. The trial judge denied the motion. Although Bundy challenged this denial in his brief on direct appeal, the Florida Supreme Court did not address it.

In his federal habeas petition, Bundy claimed that the trial court erred in denying his motion to enter a life sentence on the verdict and to prohibit the penalty phase of trial. The district court observed that Bundy “essentially concedes that this ground is procedurally barred,” and, alternatively, held the claim without merit. See slip op. at 16-17. Although this claim is not procedurally barred, we agree that the claim is without merit. There is no hint in the record that Bundy received a heavier sentence after trial as a result of judicial vindictiveness or punitive action. See Hitchcock v. Wainwright, 770 F.2d 1514, 1518-20 (11th Cir.1985) (en banc), rev’d on other grounds, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

XIV. Clemency Hearing

Bundy argues that he was denied his right to apply for executive clemency in violation of the Eighth and Fourteenth Amendments. The Florida Supreme Court, see Bundy, 497 So.2d at 1211, and the district court, see slip op. at 17, held this claim without merit. We affirm the district court, but do not share its reasoning.

We begin our analysis of the procedural due process claim by determining whether Bundy has a protected liberty interest in being accorded a hearing for executive clemency. “Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). This Circuit’s predecessor has held that such a liberty interest does not arise from the Due Process Clause itself. See Spinkellink v. Wainwright, 578 F.2d 582, 617-19 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). Accordingly, we turn to the Florida Rules of Executive Clemency. See Sullivan v. Askew, 348 So.2d 312, 319-25 (Fla.) (setting forth clemency procedures), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977).

In Hewitt, the Supreme Court observed that the mere enactment of regulations does not automatically give rise to a liberty interest, especially if the regulations are nothing more than guidelines for the exercise of executive discretion. 459 U.S. at 471, 103 S.Ct. at 871. The Court recognized, however, that a liberty interest is present when the regulations are of an “unmistakably mandatory character” and require “specific substantive predicates.” Id. at 471-72, 103 S.Ct. at 871.

Florida’s clemency procedures do not satisfy either requirement. Cf. Sheley v. Dugger, 833 F.2d 1420, 1424 (11th Cir.1987) (Florida “rules and regulations concerning administrative segregation and close management create for inmates a liberty interest in remaining in the general prison population”); McQueen v. Tabah, 839 F.2d 1525, 1527-29 (11th Cir.1988) (following Sheley). First, the clemency procedures do not unmistakably indicate that a prisoner sentenced to death is entitled to a clemency hearing. Rule 7, a special rule for executive clemency in capital cases, provides that “[t]he Governor or any member of the Cabinet, after reviewing a certified copy of the conviction and sentence, may request the Florida Parole and Probation Commission to make an appropriate investigation, inquiring into any factors relevant to commutation.” Although Rule 7 sets forth required procedures, these procedures are required only after the discretionary request to the Commission. See also Sullivan, 348 So.2d at 318 (England, J., specially concurring) (procedures are required “once triggered”). Second, no specific substantive predicates govern this discretion; the decision whether to grant clemency is wholly a matter of executive discretion. Sullivan, 348 So.2d at 314-16; Fla. Const. Art. IV, § 8. The clemency rules do not require the Governor to make any factual findings in order to deny clemency to a capital defendant.

Finally, Bundy’s claim that the lack of a clemency hearing violates his Eighth Amendment right is without merit. This is not the situation where a state prohibits executive clemency. See Gregg v. Georgia, 428 U.S. 153, 200 n. 50, 96 S.Ct. 2909, 2937-38 n. 50, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (prohibiting executive clemency “would be totally alien to our notions of criminal justice”). In addition, the concern derived from the Eighth Amendment regarding capital cases focuses on the judicial processes of trial and appellate review, not on the discretionary state process (i.e., executive clemency) succeeding them. See Spinkellink, 578 F.2d at 619 & n. 45.

XV. Pretrial Publicity

Bundy argues that his jury was both presumptively and actually prejudiced on account of adverse pretrial publicity concerning his conviction in the Leon County case. By statutory choice of permissive venue, venue initially was in Suwannee County. (Lake City is located in Columbia County.) After the start of voir dire in Suwannee County, the trial court granted Bundy’s motion for a change in venue and moved the case to Orange County. The trial court refused to grant Bundy another change of venue, or abatement in the trial, even though Bundy contended that the jurors in Orange County were as equally prejudiced as the jurors in Suwannee County. The Florida Supreme Court, see Bundy, 471 So.2d at 19-20, and the district court, see slip op. at 17-19, held this claim without merit. On appeal, Bundy argues that the district court erred in denying him an evidentiary hearing on this claim.

Jury prejudice can be presumed from pretrial publicity if that publicity is sufficiently prejudicial and inflammatory and if it saturated the community where the trial was held. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975); Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1419-20, 10 L.Ed.2d 663 (1963); Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). This principle is rarely applicable and reserved for extreme situations where pretrial publicity renders “virtually impossible a fair trial by an impartial jury drawn from the community.” Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981).

We hold that the coverage of the Leon County trial, although extensive, does not satisfy the heavy burden associated with presumed prejudice. In support of his motion for a change in venue or abatement of prosecution, Bundy presented the testimony of local television personnel. See R6:1159-98, R7:1202-18. The public television station had broadcast half-hour summaries of the Leon County trial. These summaries were factual accounts; the station was prohibited by law from offering editorial comment. At the time of jury selection in January 1980, the station had not broadcast anything about Bundy since the conclusion of the Leon County trial in late July 1979. Although the commercial television stations provided extensive coverage of the Leon County trial, the coverage was factual in nature and not designed to inflame or prejudice the public. In addition, prior to the verdict, these stations did not broadcast editorials about whether the defendant was guilty in that case. Bundy also presented newspaper articles from the local newspaper. See R12:2222-24. Again, these articles are largely factual in nature. Consequently, unlike Coleman, the coverage of the Leon County case was not infested with inflammatory and prejudicial remarks from the police and prosecutors. See also Murphy, 421 U.S. at 802, 95 S.Ct. at 2037 (news articles were largely factual in nature); United States v. Klacker, 811 F.2d 555, 556 (11th Cir.1987) (“The news reports detailing appellant’s flight from justice were largely factual reports, devoid of inflammatory material.”).

Likewise, we are unpersuaded by a public opinion poll proffered by Bundy in support of his motion. The poll, conducted among residents of Orange County, showed that 98% of those who responded indicated their familiarity with the name Bundy. See R7:1237. Of that number 58% stated that they knew Bundy had been involved in the Leon County case. Of that number, 31% believed that Bundy’s conviction in that case strongly indicated that he was guilty in the present case. See id. at 1240. Although publicity concerning a defendant’s involvement in other crimes is relevant in presuming jury prejudice, especially if the defendant’s involvement in that crime is inadmissible in the guilt/innocence phase, Murphy stands for the proposition that prejudice is not presumed simply because the defendant’s criminal record is well publicized. Thus, even assuming that the methodology of the public opinion poll is such that it accurately reflected the attitude of Orange County residents, the poll does not demonstrate that the community was so predisposed to Bundy’s guilt in the present case that prejudice must be presumed.

Nor can we say that Bundy has demonstrated actual prejudice in the entire venire. See Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961). We have carefully reviewed approximately 19 volumes of voir dire. We note that the trial court propounded general questions to each set of prospective jurors, the panels ranging from eleven to fifteen persons. As one of the general questions, the trial court requested that prospective jurors raise their hands to indicate if they had heard of the defendant, but that they not reveal the source or extent of their knowledge. Thereafter, those prospective jurors who remained after general questioning were individually questioned by the trial court, one prosecutor, and one defense attorney. No other prospective juror was present during this individual questioning. Our review of the record indicates that as part of this individual questioning the trial court permitted a searching inquiry into knowledge and thoughts about the defendant;

Our review of the record indicates that 172 prospective jurors were called and 56 were excused for reasons relating to health, family, employment, or school. Of the 116 remaining prospective jurors, 42 were excused because they could not (1) be impartial based upon their extensive knowledge of the Leon County case, (2) set aside preconceived notions of guilt, and/or (3) could not accord Bundy a presumption of innocence. Of the remaining 74 jurors, a small minority also stated that they had a preconceived notion of guilt. Consequently, we cannot say that Bundy suffered actual prejudice from the entire venire.

Before we examine whether Bundy has demonstrated actual prejudice regarding the trial jury as a whole, we examine Bun-dy’s challenge to an individual juror. The Supreme Court has recognized that the question of the partiality of an individual juror is one of historical fact to which the presumption of correctness of a state court’s factual findings under 28 U.S.C. § 2254(d) applies. Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). “Thus the question is whether there is fair support in the record for the state courts’ conclusion that the juror[] here would be impartial.” Id. at 1038, 104 S.Ct. at 2892.

We conclude that there is fair support in the record for the trial court’s conclusion as to this individual juror. This juror, the twelfth juror selected and eventually the jury foreman, was pre-press manager of the local newspaper. In response to the trial court’s questions, he stated that he understood that the defendant was entitled to be tried on the evidence presented in the present case alone, that he would follow the trial court’s instructions as to the law, that he would accord the defendant a presumption of innocence and hold the state to its burden of proof, that he would not require the defendant to take the stand, and that he would set aside any opinion or impression he had about the defendant. See R18:3455-58. Assuming a guilty verdict, he stated that he was not committed to voting automatically for the death penalty or life imprisonment. Id. at 3465. He again stated that the defendant need not take the stand, the defense need not prove the defendant not guilty, and that the burden rested on the state. Id. at 3466-67.

On questioning by Africano, see generally id. at 3473-89, the juror stated that he knew Bundy was convicted of murder in Miami of “the Tallahassee girls” and that “it sounded like a pretty gory case” and “some brutal murders.” He knew Bundy was sentenced to death. Unlike most prospective jurors, he recalled the bite-mark evidence from that case, although he stated, “I believe that was the Bundy case.” He guessed that death was by bludgeoning and that there was more than one murder. Unlike most prospective jurors, he recalled that Bundy had escaped from prison in Colorado. He knew that Bundy “is highly intelligent and he had some law background or something somewhere along the line.” He did not recall if co-workers had reached a consensus of Bundy’s guilt prior to the Leon County verdict, but said that family and friends thought Bundy was guilty. Twice, he stated that he had no thoughts as to Bundy’s guilt prior to the verdict. After conviction in the Leon County case, his feelings were “[n]ot too good towards Mr. Bundy.” He stated that he still felt that way, but that he would listen to the evidence in the present case. Upon further questioning, the juror adhered to his earlier stated positions. Based upon our examination of the record, we hold that there is fair support for the trial court’s conclusion.

We proceed to examine whether Bundy has demonstrated actual prejudice regarding the trial jury as a whole. In this context, the Supreme Court has questioned whether the “fairly supported by the record” standard of 28 U.S.C. § 2254(d) supplanted the “manifest error” standard enunciated in Irvin. Patton v. Yount, 467 U.S. at 1031 n. 7, 104 S.Ct. at 2889 n. 7. The Court, however, did not resolve the question because it concluded that the defendant had not satisfied the “manifest error” standard. Id. at 1032 n. 7,104 S.Ct. at 2889 n. 7. Because we conclude that Bundy has not satisfied Irvin’s standard, we also do not determine whether Section 2254(d) has superseded that standard.

We have already set forth the relevant voir dire of the twelfth juror. We now summarize the individual voir dire of the other eleven jurors:

Juror No. 1 (R6:1017-1049): She stated that she could follow the trial court’s instructions. She knew that Bundy was on trial for some murders in the northern part of Florida. She believed he was convicted, but did not know the sentence. No challenge for cause was made.

Juror No. 2 (R6:1080-1116): He stated that he could follow the trial court’s instructions. He had heard Bundy’s name before, but could not recollect why. No challenge for cause was made.

Juror No. 3 (R8:1482-1530): She stated that she was not sure that she had a fixed opinion regarding guilt/innocence, but that she would follow the trial court’s instructions. She stated that she was not sure if she had an open mind regarding hypnosis and that she had mixed feelings about the death penalty. Although she “may even have the wrong thing,” it seemed that Bun-dy was involved in the crime involving three girls in upstate Florida. She had formed a negative opinion about Bundy, but could fairly and impartially judge the evidence, although there might be a glimmer of a doubt that she could do that. She thought she would require some evidence tending to show innocence, even though there is a presumption of innocence. She thought she might be influenced by the fact that Bundy did not take the stand. However, she would just have to keep reminding herself of the instructions of the court. The trial court found a firm indication of impartiality and denied the motion to excuse for cause.

Juror No. 4 (R9:1686-1729): He stated that he could follow the trial court’s instructions. He knew that Bundy was found guilty of murder in the previous trial and sentenced to death. He knew nothing of Bundy’s background. He stated that what happened before would not have any effect on the guilt/innocence in the present case. The trial court found that the prospective juror could be impartial and denied the motion to excuse for cause.

Juror No. 5 (R10:1974-98, Rll:2002-12): He stated that he could follow the trial court’s instructions. He heard Bundy’s name mentioned around his workplace. He knew Bundy was tried for something in northern Florida, but he did not know the charges or the outcome of the trial. He knew nothing of Bundy’s background. The trial court credited the truth of the prospective juror’s testimony and denied the motion to excuse for cause on that basis.

Juror No. 6 (Rll:2013-51): He stated that he had no preconceived notion of Bun-dy’s guilt or innocence and that he could follow the trial court’s instructions. He knew that Bundy was tried, convicted, and sentenced to death in Miami for the murders of two sorority sisters at Florida State University. Unlike most prospective jurors, he recalled the dentist’s testimony about the bite marks and recalled that Bun-dy was a law student out west and possibly wanted out there. Prior to the verdict in the Leon County case, he had formed an opinion that Bundy was guilty. He stated that he had no opinion about Bundy personally and that his knowledge would not influence his decision because the present case was a totally different case. He stated that he believed in the notion of innocent until proven guilty. The trial court denied the motion to excuse for cause.

Juror No. 7 (R14:2698-2737): She stated she could follow the trial court’s instructions. She was dubious about hypnosis, but could consider the testimony. She read the newspaper once she knew Bundy was coming to Orlando for trial. She learned that Bundy had been tried and found guilty. She did not know what sentence was imposed. The trial court denied a motion to excuse for cause.

Juror No. 8 (R14:2737-80): She stated that she could follow the trial court’s instructions. She stated that she first heard of Bundy in the context of jury selection for this case. She expressed no knowledge of the Leon County trial. No challenge for cause was made.

Juror No. 9 (R16:3102-46): She stated that she could follow the trial court’s instructions. She knew that Bundy was convicted of murder in the earlier trial, but did not know if any sentence was imposed on Bundy. No challenge for cause was made.

Juror No. 10 (R16:3191-98, R17:3202-27): She stated that she had no feelings or opinions about the defendant that would prevent her from serving as a fair and impartial juror. She stated that she could follow the trial court’s instructions. She knew there was a prior trial, but did not know where it was held. No challenge for cause was made.

Juror No. 11 (R17:3227-52): She stated that she could follow the trial court’s instructions. She did not have a television, did not get the newspaper, and heard of Bundy through conversations only. She did not recognize Bundy when she came to court and thought one of the defense attorneys was Bundy. She stated that she had never heard of Bundy before reporting for jury duty. No challenge for cause was made.

Based upon the composition, as summarized above, of the trial jury as a whole, we hold that Bundy has not shown that the trial court committed “manifest error.” Consequently, we reject Bundy’s claim that he suffered presumed or actual prejudice as a result of pretrial publicity.

Accordingly, we hold that none of the grounds asserted by Bundy for federal ha-beas corpus relief merits the granting of his petition. Therefore, we AFFIRM the district court.

NOTES TO THE OPINION

During the time Bundy was awaiting trial in this case, he was convicted and sentenced to death for two murders committed in Tallahassee (“Leon County case”). Bundy v. State, 455 So.2d 330 (Fla.1984). This Court has remanded Bundy’s federal habeas corpus challenge in that case to the district court for proper consideration under 28 U.S.C. § 2254. Bundy v. Wainwright, 808 F.2d 1410 (11th Cir.1987) (Bundy I)-

Despite its comment that it considered Bun-dy’s petition abusive, the district court added that it would “give the petitioner a conscientious review of the issues.” Slip op. at 1. Consequently, it cannot be said that the district court dismissed the petition for abuse of the writ.

The district court misplaced its reliance on Justice Powell's concurring opinion in Davis. See 107 S.Ct. at 18 (Powell, J., concurring) (“In the future, and here I can write only for myself, I will expect counsel whose papers are filed with me as Circuit Justice on the eve of the execution date, to make an appropriate explanation.”). Despite Justice Powell's admonition, the full Supreme Court granted stays of execution, although the applications for stay were not filed until the day before the scheduled execution. Consequently, Davis does not support the district court’s observation. Likewise, none of the cases cited by the state support the proposition that a first petition can be dismissed as abusive because it was filed on the eve of execution. Furthermore, this Court subsequently held in Davis v. Dugger, 829 F.2d 1513, 1514 (11th Cir.1987), that "the scheduling of an execution does not, in and of itself, create a basis for dismissing a petition under the abuse of the writ doctrine.” See also Antone, 465 U.S. at 206 n. 4, 104 S.Ct. at 965 n. 4 (time constraints do not excuse failure to raise claim in a prior petition); Adams v. Wainwright, 804 F.2d 1526, 1533-34 (11th Cir.1986) (time constraints do not excuse failure to develop facts associated with claim raised in a prior petition). .We likewise find no basis to dismiss the petition as a "delayed” petition. See 28 U.S.C. § 2254 Rule 9(a). Similarly, the state’s argument that Bundy’s petition presents frivolous claims and, therefore, that a finding of abuse is warranted is without merit. Rule 9 does not examine the strength of the claims. Cf. 28 U.S. C. § 2254 Rule 4. .From our predecessor circuit we have inherited two somewhat inconsistent lines of authority with respect to the standard of review we should apply to the district court's finding that Bundy was competent to stand trial. Under one line of cases a district court’s finding of competency to stand trial is a finding of fact that can be set aside only if clearly erroneous or arbitrary. See United States v. Hayes, 589 F.2d 811, 822 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Fratus, 530 F.2d 644, 647 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 130, 50 L.Ed.2d 118 (1976); United States v. Stone, 472 F.2d 909, 913 (5th Cir.1973), cert. denied, 449 U.S. 1020, 101 S.Ct. 586, 66 L.Ed.2d 482 (1980); United States v. Gray, 421 F.2d 316, 317 (5th Cir.1970); see also United States v. Birdsell, 775 F.2d 645, 648 (5th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1979, 90 L.Ed.2d 662 (1986). This is consistent with the approach taken by other circuits. See, e.g., McFadden v. United States, 814 F.2d 144, 146 (3d Cir.1987); United States v. Lovelace, 683 F.2d 248, 251 (7th Cir.1982); Chavez v. United States, 656 F.2d 512, 517 (9th Cir.1981); United States v. Caldwell, 543 F.2d 1333, 1349 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (all using the clearly erroneous standard). In another line of cases, however, the Fifth Circuit has been less deferential, reviewing historical facts under a clearly erroneous standard but taking a more stringent "hard look" at the district court’s ultimate finding of competency. See Lokos v. Capps, 625 F.2d 1258, 1267 (5th Cir.1980); Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); United States v. Makris, 535 F.2d 899, 907 (5th Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977); see also Wheat v. Thigpen, 793 F.2d 621, 631 (5th Cir. 1986), cert. denied, — U.S. -, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987). Because we would uphold the district court's finding that Bundy was competent to stand trial under either standard, we need not resolve this inconsistency. Instead, we will assume that the stricter "hard look” standard applies and analyze the district court’s finding under that standard.

A bipolar mood disorder is better known as manic depressive mental illness. Bipolar mood disorders are characterized by wide changes in mood or mood swings. During the manic phase, the person can be loud, angry, violent, or grandiose. At the other extreme, the person would experience periods of extreme depression.

The district court concluded; Upon reviewing the voluminous records in this case, observing the demeanor of each of the witnesses, and considering the expert testimony concerning Petitioner’s competency to stand trial for the murder of Kimberly Diane Leach, the Court accepts the testimony and opinions of' Dr. Charles Mutter and Dr. U[m]esh Mha[t]re as being logical and consistent with the testimony of other witnesses, as well as the record evidence, tape recordings and video cassette recordings submitted for consideration in this cause. Accordingly, the Court finds that Petitioner, Theodore Robert Bundy, possessed sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding, and that Petitioner had a rational as well as factual understanding of the proceeding against him at all relevant times during thé trial and pretrial proceedings in the Kimberly Diane Leach murder case. Petitioner appreciated the charges that were pending against him and he understood and appreciated the range and nature of the possible jeopardy he faced if convicted for the murder of Kimberly Diane Leach. Petitioner clearly understood the adversary nature of the proceedings in the Leach murder case and was well informed as to the legal process. Petitioner had the ability and capacity to disclose to his attorneys pertinent facts surrounding the murder of Kimberly Leach. Petitioner also related well with his attorneys in the Leach murder case, and Petitioner, on many occasions, assisted his attorneys during the course of the Leach murder trial and pretrial proceedings. Petitioner was clearly motivated to help his case, and he was actively involved in the planning of defense strategy. Further, it is clear from the numerous depositions taken by Petitioner that Petitioner was not only motivated to present a winning defense, but he was also an effective questioner. Finally, the Court notes that Petitioner had no problem adjusting to the stress of incarceration prior to trial. Consequently, the Court finds as a matter of law that Petitioner, Theodore Robert Bundy, was at all times competent to stand trial for the murder of Kimberly Diane Leach. Bundy, 675 F.Supp. at 634-35.

Bundy also raises claims concerning ineffective assistance of counsel relating to Bundy’s competence to stand trial. In light of our conclusion that Bundy was competent to stand trial, the related ineffective assistance of counsel claims lack merit.

Dr. Tanay’s testimony was from a deposition taken on December 14, 1987.

Bundy emphasizes in his brief that only Dr. Lewis had recently interviewed him and that Drs. Mutter and Mhatre had not. We agree with the explanation of Drs. Mutter and Mhatre that a recent interview was unnecessary because the narrow issue of focus was Bundy’s competence to stand trial at the time of the trial. Similarly, we reject the suggestion in Bundy’s brief that Dr. Mhatre’s opinion is entitled to less weight because Dr. Mhatre interviewed only one of Bundy’s defense lawyers. Dr. Mhatre interviewed Victor Africano, Bundy’s lawyer during the Lake City trial.

Bundy did express (out of the presence of the jury) dissatisfaction at the selection of one of the jurors. Considerable testimony before the district court, however, suggests that either the outburst was calculated to win favor from Bun-dy’s peers on death row or it was legitimate in light of the juror’s statements.

These tapes were to be used to prepare a book about Bundy.

We recognize that in the decision of remand this Court focused on "strong indicia” of possible incompetence to stand trial. See Bundy II, 816 F.2d at 567. This Court cautioned, however, that a final determination could be made only after a full and fair evidentiary hearing. Id. at 568. Our review of the record in light of the district court's observations concerning these indicia convinces us that what appeared as "strong indicia" prior to the hearing are happenings that are consistent with a determination that Bundy was competent to stand trial.

Bundy Claims in his federal habeas corpus petition that "[t]he ground for the court’s denial was a contempt citation arising from Mr. Farmer’s persistent objection, in a Georgia criminal matter, to the prosecutor referring to the black defendant by his first name rather than by his surname, as the prosecutor referred to other persons in the proceeding.” See para. 92 (emphasis added) (citing Farmer v. Holton, 146 Ga.App. 102, 245 S.E.2d 457 (1978) (overruled by In re Crane, 253 Ga. 667, 324 S.E.2d 443, 446 (1985)), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979)). We note that the trial court did not base its denial solely on the Farmer v. Holton decision. See R:14,121-22. For reasons set forth in the text infra, we do not evaluate the trial court's denial of the motion to appear pro hac vice. .We agree with Bundy that the district court did not address the merits of the choice of counsel claim and thus erred in its reasoning for rejecting the related ineffective assistance of counsel claim.

Because Bundy presented the ineffective assistance of counsel claim as an independent claim to the Florida courts, the exhaustion doctrine is not implicated here. See Carrier, 477 U.S. at 488-89, 106 S.Ct. at 2646.

Because we do not agree that Bundy has satisfied the "cause" requirement, we do not examine whether Bundy demonstrated actual prejudice.

We also note that immediately after the denial of the motion to appear pro hac vice in the Leon County case, Bundy filed an action in federal court pursuant to 42 U.S.C. § 1983. Bundy alleged that the denial violated his Sixth Amendment right to counsel. This Court, affirming on the basis of the district court’s opinion, concluded that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), precluded a federal court from examining Bundy’s claim. See Bundy v. Rudd, 581 F.2d 1126, 1129-30 (5th Cir.1978), cert. denied, 441 U.S. 905, 99 S.Ct. 1992, 60 L.Ed.2d 373 (1979). .Accordingly, Bundy could not rely on the novelty of his legal claim as "cause” for noncompliance with Florida’s rules. See Smith, 477 U.S. at 536-37, 106 S.Ct. at 2668.

See supra note 16.

Bundy cannot argue that this claim is so novel as to constitute cause. See Smith, 477 U.S. at 536-37, 106 S.Ct. at 2667-68. Nor is this "an extraordinary case” where the writ should be granted even absent a showing of cause. See Carrier, 477 U.S. at 496, 106 S.Ct. at 2650; Smith, 477 U.S. at 537-39, 106 S.Ct. at 2667-69.

Bundy also suggests that the use of this testimony deprived him of his right to a jury trial. This claim is without merit.

Despite the reliance on harmless-constitutional-error cases, it is difficult to ascertain whether the Court relied on federal constitutional law or state evidence law in holding that hypnotically refreshed testimony is per se inadmissible in a criminal case. As discussed in the text infra, we conclude that such testimony is not per se inadmissible as a matter of federal constitutional law.

The Court cited three general characteristics of hypnosis as bases for inaccurate memories: "the subject becomes ‘suggestible’ and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to ‘confabulate,’ that is, to fill in details from the imagination in order to make an answer more coherent and complete; and the subject experiences ‘memory hardening,’ which gives him great confidence in both true and false memories_” 107 S.Ct. at 2713.

Anderson explained that he delayed going to the police "[b]ecause I wasn’t sure of what day I saw the girl. I wasn’t sure at all. I didn’t want to become involved in it. I saw one picture of Mr. Bundy. I looked at the picture. It did not closely resemble the man that I saw with the girl." R21:4146. He added that "the only reason that I can give for not coming forward sooner is, as I stated before, not wanting to be involved, having a lot of other things on my mind at the time, not knowing the exact date that I saw the girl, halfway afraid of creating turmoil, needlessly!] seeing [sic] law enforcement on a wild goose chase.” Id. at 4148; see id. at 4074.

Bundy argues that the Florida Supreme Court improperly recognized a procedural bar because he raised this issue before the trial court in his motion to limit death qualification of the jury. See R159:14,658; app. 54. This motion does not appear to be based on the same ground as the claim raised on direct appeal. Rather, the motion appears directed at the distinction between the trial and sentencing phases. Cf. Lockhart v. McCree 476 U.S. 162, 180, 106 S.Ct. 1758, 1768, 90 L.Ed.2d 137 (1986) (state has "entirely proper interest” in obtaining a single jury that could impartially decide all of the issues in a capital case). In addition, it appears Bundy argued the same rationale to the trial judge. See R126:ll,375-80. Bundy also suggests in his brief that he voiced timely objections at voir dire. We have examined those passages and it again appears that the objections were directed at the distinction between the trial and sentencing phases. Consequently, it does not appear that Bundy raised the present claim before the trial court. We do not determine, however, whether this claim is subject to the procedural default doctrine. Rather, we conclude that the claim is without merit.

Our review of the record indicates that eight prospective jurors were excused because their views on the death penalty precluded them from returning a guilty verdict and/or from voting for the death penalty. See voir dire associated with R4:650, R7:1316, R11:2052, R11:2077, R12:2205, R12:2363, R13:2455, and R16:3002. Our review also indicates that their exclusion accorded with the standards set forth in Wither-spoon and its progeny.

Indeed, this Court has intimated that federal evidence law does not require that the Frye test be met prior to the admission of evidence. United States v. Hope, 714 F.2d 1084, 1087 n. 3 (11th Cir.1983). This case, not concerning a federal conviction, presents us with no opportunity to address Hope’s intimation.

As set forth above, an evidentiary ruling is a cognizable ground for federal habeas corpus relief if it deprived the state court defendant of fundamental fairness, that is, the improperly admitted evidence was crucial and highly significant.

Because 28 U.S.C. § 2254(d) does not accord a presumption of correctness to a state court’s determination of law, we read the district court as independently agreeing with the Florida Supreme Court’s analysis.

Although the state did agree to life sentences in this case and the Leon County case, Bundy appeared in open court at the joint plea proceeding, challenged the effectiveness of his counsel, and made a motion for replacement of counsel. At this point, the state withdrew the plea offer for fear that Bundy later would challenge his guilty pleas by claiming he had received ineffective assistance of counsel. .We do not fault the district court for its statement. Bundy erroneously stated in his ha-beas petition that the claim had not been raised on direct appeal.

We reject any notion that press coverage related to the evidence in the present case or related to Bundy’s activities in other states satisfies the heavy burden associated with presumed prejudice. Our review of the voir dire buttresses this conclusion; few prospective jurors had knowledge of the details of the present case or of Bundy’s out-of-state activities.

Three prospective jurors could not accord a presumption of innocence to a defendant in general. In addition to the 12 jurors and three alternates, 36 were excused on the basis of peremptory challenges, eight on the basis of With-erspoon, five for hearing improper comments of or engaging in improper discussion with other prospective jurors, four because of their reaction to the victim’s age or the planned introduction of photographs into evidence, one because of meeting the victim’s father, one because of being in Lake City at the time of the crime, and one because of believing that imposition of the death penalty was automatic upon conviction based on the facts alleged in the indictment.

The trial court rejected the defendant’s challenge for cause: “The Court finds that this prospective juror is competent to serve. It has not been shown that he has partiality and as shown by his total testimony, he is able to put aside anything he might have heard or any feelings he might have, and he is competent to serve." R18:3507.

Q. Did you ever voice or feel that he was guilty before the verdict was handed down? A. No. I’m one of the rare few that, without seeing or being there when the evidence was given, I really don’t think you can judge. Q. Okay. And didn't that "he must have done something,” doesn't that give you any tendency to feel that he must have been guilty of something? A. No. It aroused a lot of curiosity, but I can’t judge anyone guilty just because there is a lot of publicity. R18:3479.

Q. The feelings that you had about Mr. Bun-dy after the trial in Miami, which you have described as not being very good, do you still carry those feelings with you? A. Sure. Q. You do? A. (Nods head affirmatively) Q. Well, how do you feel about him as he sits there now? A. He is a convicted murderer. Q. Okay. Does that make you feel anything about the charges in this case? A. Not in this case. Q. Does the fact that the State of Florida has brought an indictment against him and prosecuting him make you feel that he is in some way guilty of that charge? A. Not of this charge. Q. The fact that you know he is a convicted murderer, as you put it, doesn’t make you feel any less like giving him all the presumptions of innocence that the Court has instructed you about? A. No. The State has to prove that he is guilty in this particular case. Q. Okay. But how are you going to take out of your mind the bad feelings you have about Mr. Bundy, the fact that you described him as a convicted murderer, and then just look at that evidence totally and completely objectively? A. He is innocent in this case until the State of Florida proves him guilty. As a juror, I have to listen to the evidence in this case.... Whether I like him or not, what I think about him in the past has to have nothing to do with this case. I will attempt to do that. Q. I understand you will attempt to do that, but, because I’m not going to get a chance to discuss with you later, and, once you're passed on as a juror, it’s too late, if you don’t think that you really can do it. This is why we have this opportunity to deal with this at this point in time. And as Mr. Bundy’s lawyer, I need to know how you feel about him. Are you so opinionated about him personally that it might affect your perception about the evidence in this case? A. Not as far as this case is concerned. R18:3483-85.

Q. Is what you know and, as a person, feel about Mr. Bundy going to make the State’s burden any less in proving guilt beyond and to the exclusion of every reasonable doubt? A. No. Q. If, at the conclusion of the State’s case or all of the evidence in this case, you feel that the State hasn’t quite met its burden, but you do have a reasonable doubt, that this defense has not come forward with any evidence or Ted Bundy did not take the stand and testify and tell you he didn’t do it, is what you know about him and feel about him personally, is that going to make you resolve that reasonable doubt against him? A. No. Q. If you resolve in your own mind, at the conclusion of all of the evidence, that the State has not met its burden and you feel and find in your own mind that Ted Bundy is not guilty, would you hold firm in that resolve? A. Sure. Q. Even if you were a majority of one of twelve people? A. (Nods head affirmatively). R18:3488-89.

538 So. 2d 445, decided January 20, 1989

Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee.

No. 73585.

Supreme Court of Florida.

Jan. 20, 1989.

James E. Coleman, Jr. and Polly J. Nelson of Wilmer, Cutler and Pickering, Washington, D.C., for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn M. Snurkowski, Mark C. Menser and Gary L. Printy, Asst. Attys. Gen., Tallahassee, for appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

Theodore Robert Bundy, a prisoner under sentence of death and execution warrant, appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief and his application for stay of execution. We have jurisdiction under article V, section 3(b)(1), of the Florida Constitution.

Bundy was convicted of the first-degree murder of twelve-year-old Kimberly Leach and sentenced to death. The conviction and sentence were affirmed by this Court in Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). After the governor signed a death warrant, Bundy filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which was denied. This Court affirmed and at the same time denied a petition for writ of habeas corpus. Bundy v. State, 497 So.2d 1209 (Fla.1986). Bundy then filed a petition for habeas corpus in federal district court, which was also denied. However, the court of appeals stayed Bundy’s execution pending appeal from the denial of his petition for habeas corpus. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986). That court later directed the district court to hold an evidentiary hearing on Bundy’s claim that he was incompetent to stand trial. Bundy v. Dugger, 816 F.2d 564 (11th Cir.), cert. denied, — U.S. -, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). After holding such a hearing, the district court ruled that Bundy “was at all times competent to stand trial for the murder of Kimberly Diane Leach.” Bundy v. Dugger, 675 F.Supp. 622, 635 (M.D.Fla.1987). This order was affirmed by the court of appeals in Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988). The United States Supreme Court denied Bundy’s petition for writ of certiora-ri. Bundy v. Dugger, — U.S. -, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989). On January 17, 1989, the governor signed a second death warrant and scheduled Bundy’s execution for January 24, 1989.

On January 17,1989, Bundy filed his new motion in the trial court, together with an application for stay of execution. Because he was the judge at Bundy’s trial, Circuit Judge Wallace Jopling, now retired, was assigned to hear the motions. However, Bundy filed a motion to recuse Judge Jo-pling, which was granted. Thus, Circuit Judge John W. Peach heard Bundy’s motions. After a review of the pleadings and listening to the argument of counsel, the trial court granted the state’s motion to dismiss and denied Bundy’s motion for an evidentiary hearing and application for stay of execution.

All of Bundy’s claims are related to his convictions for the Chi Omega killings which were affirmed by this Court in Bundy v. State, 455 So.2d 330 (Fla.1984), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986). The trial on the Chi Omega case took place several months before the Kimberly Leach trial. While those convictions and sentence of death remain intact, the court of appeals has also directed the federal district court to conduct an evidentiary hearing on Bundy’s claim that he was incompetent during the Chi Omega trial. See Bundy v. Dugger, 816 F.2d at 568.

Bundy’s first claim is that the trial court should have held a hearing concerning Bun-dy’s competency, particularly in view of Bundy’s rejection of a proposed plea agreement which would have spared his life. Notwithstanding the fact that after an evi-dentiary hearing the federal courts have concluded that Bundy was competent, he argues that the testimony of Judge Jopling given at the federal court hearing that there was no need for a competency hearing was flawed because it was based in part upon his knowledge that Bundy had been found competent in a full hearing in the Chi Omega case, and the validity of this finding remains in question in federal district court.

Bundy’s claim is procedurally barred because he failed to raise the issue on direct appeal. Alvord v. State, 396 So.2d 184 (Fla.1981). Furthermore, Bundy did raise the issue of his mental competence in his earlier unsuccessful motion for postconviction relief. Thus, the reassertion of this claim constitutes an abuse of process. Booker v. State, 503 So.2d 888 (Fla.1987).

This claim is also barred by the provisions of rule 3.850 which require motions for postconviction relief to be filed within two years after the judgment and sentence become final (1) unless the facts upon which the claim is predicated are unknown and could not have been reasonably ascertained, or (2) the fundamental constitutional right asserted was not established within the applicable time period and has been held to apply retroactively. Bundy’s conviction and sentence became final when the United States Supreme Court denied his petition for certiorari on October 14, 1986. Hence, this claim should have been raised by October 14, 1988, providing it was known. Judge Jopling testified at the federal court competency hearing in December of 1987. Therefore, Bundy had at least ten months before the expiration of the two-year period within which to raise the claim but failed to do so. Johnson v. State, 536 So.2d 1009 (Fla. Dec. 1, 1988).

Bundy’s second claim relates to the validity of the Chi Omega convictions which were used in part as a basis for the finding of the aggravated circumstance that Bundy had committed prior violent felonies. He says that the Chi Omega convictions may be set aside in the pending federal court proceedings. Under such circumstances, he argues that he would be entitled to resentencing pursuant to the rationale of Johnson v. Mississippi, — U.S. -, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).

This claim is procedurally barred for failure to raise it on direct appeal or in the first motion for postconviction relief. It is also barred by the two-year provision of rule 3.850. At Bundy’s trial, his attorney asserted that the Utah conviction could not be used to support any aggravating factors because they were not proven. In his first rule 3.850 motion, Bundy attacked the competence of his trial attorney for failing to challenge the constitutionality of both his Utah and Florida convictions so as to eliminate aggravating factors. Citing United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), Bundy argued that the reliance upon his prior convictions meant that his death sentence was predicated upon “misinformation of constitutional magnitude.” Therefore, Bundy has long been aware that he could challenge his death sentence by challenging the validity of his prior convictions, even though Johnson v. Mississippi had not yet been decided.

In any event, and -in the alternative, Johnson v. Mississippi provides no basis for relief in this case. In Johnson v. Mississippi, the defendant’s death sentence was set aside because his New York assault conviction, which was the entire predicate for the aggravating circumstance of a prior violent felony, had been reversed. Here, the validity of Bundy’s Utah conviction of aggravated kidnapping, which was also considered as a basis for the finding of a prior violent felony, has not been challenged. See Straight v. State, 488 So.2d 530 (Fla.1986). Moreover, there were two other valid aggravating circumstances which were unaffected by the Chi Omega convictions and a complete absence of mitigating circumstances. Finally, it must be remembered that his Chi Omega convictions have been final for several years and have not been set aside. The fact that these convictions are being attacked in collateral proceedings does not entitle Bundy to relief.

Finally, Bundy argues that his right to a fair sentencing pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), was violated because during his trial Judge Jopling and the prosecutors had ex parte communications about the Chi Omega competency hearing and Bundy’s mental condition. He asserts that this first came to light in the federal court evidentiary hearing concerning Bundy’s competency to stand trial for the Leach killing. Once again, Bundy has failed to timely raise his claim under rule 3.850 because he knew of Judge Jopling’s testimony ten months before the expiration of the time in which he was required to file his motion for postconviction relief.

Even if there were no procedural bar, the pertinent portions of the record belie Bun-dy’s contentions. The predicate for Bun-dy’s assertion comes from Judge Jopling’s testimony that at the trial he may have heard about some of the details of the Chi Omega competency hearing from the state attorney, though he was uncertain of this. There was a specific reference to a medical report of Dr. Tanay which was part of that proceeding. However, it is clear from the record of the original trial that Judge Jo-pling received Dr. Tanay’s report from Bundy’s counsel. Moreover, at sentencing Judge Jopling specifically announced that he had “considered no evidence or factors in imposing the penalty herein and has no information not disclosed to the Appellant or his counsel which the Appellant has not had an opportunity to deny or explain.” The remaining assertions that Judge Jo-pling improperly received ex parte communications concerning the Chi Omega competency hearings consist of nothing more than conclusory statements drawn from generalized responses made by the judge at the federal court hearing which took place eight years after the trial.

We affirm the order denying Bundy’s motion for postconviction relief and Bun-dy’s application for stay of execution. We also deny his application for stay of execution filed in this Court. No petition for rehearing shall be permitted.

It is so ordered.

EHRLICH, C.J., and OVERTON, MCDONALD, SHAW and GRIMES, JJ., concur.

BARKETT, J., concurs specially with an opinion with which KOGAN, J., concurs.

[OPINION BY BARKETT, Justice, type=concurrence]

BARKETT, Justice,

specially concurring.

I would resolve this case solely on the merits, and, on that basis, agree with the Court that under our law appellant is not entitled to relief on the claims asserted.

KOGAN, J., concurs.