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

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

Final Words:
None.

Internet Sources:

Florida Department of Corrections

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

Gainesville Sun

"State executes convicted killer," by Nathan Crabbe. (Oct 19, 2006)

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

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

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

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

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

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

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

Miami Herald

"State executes killer in 1985 murder case," by Ron Word. (Associated Press Posted on Thu, Oct. 19, 2006)

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

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

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

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

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

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

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

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

Reuters News

"Florida executes killer handyman," by Michael Peltier. (Thu Oct 19, 2006 4:41 AM ET)

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

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

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

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

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

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

Tallahassee Democrat

"Rutherford put to death for murder," by Paul Flemming. (October 19, 2006)

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

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

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

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

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

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

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

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

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

First Coast News

"Convicted Killer Arthur Rutherford Executed." (10/18/06)

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

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

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

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

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

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

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

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

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

Pensacola News

"Killer dies in death chamber," by Paul Flemming. (Published - October, 19, 2006)

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

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

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

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

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

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

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

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

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

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

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

ProDeathPenalty.Com

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

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

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

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

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

Apparently, Mrs. Salamon never got the refund that Harold was supposed to bring, and Rutherford left the old glass doors in her garage. At 7:00 the next morning, August 22, Rutherford and Harold went to retrieve the old doors from Mrs. Salamon's garage. When they reached the house, Rutherford told Harold that he had a gun in his van and said, “If I reach for that gun, you'll know I mean business.” Harold testified that this was the first time he really believed that Rutherford might actually hurt someone, yet he still did nothing about it. While they were loading the doors, Harold overheard Mrs. Salamon say to Rutherford, “You can just forget about the money.” Later that morning, between 9:30 and 10:30 a.m., the manager of a local Sears store saw Mrs. Salamon when she came by to pick up a package. She also stopped at the Consolidated Package Store and made a purchase at 10:29 a.m., according to computer sales records. After that, Rutherford was the only other person known to have seen Mrs. Salamon alive, and she was not alive long, as Rutherford's actions on that day evidence.

Around noon, Rutherford went to see a woman who sometimes baby-sat for his children and with whom he had once lived for a few months. He showed her one of Mrs. Salamon's checks and asked her to fill it out. The woman cannot read or write other than to sign her name, so she called for her thirteen-year-old niece. Rutherford promised the girl money if she would fill out the check as instructed. She filled out the check the way Rutherford told her to, making it payable to the baby-sitter, but she did not sign anyone's name on it. Rutherford told the babysitter that he owed her money for work she had done for him and asked her to accompany him. He took her to the Santa Rosa State Bank, gave her the check, and sent her into the bank to cash it. Because of the blank signature line, the teller refused to cash the check; the woman returned to Rutherford's van and told him. Rutherford responded by driving them to the nearby woods, where he took out a wallet, checkbook, and credit cards wrapped in a shirt, and threw the bundle into the trees. He also signed Mrs. Salamon's name onto the check, and then they went back to the bank. Outside the bank, the babysitter watched as Rutherford endorsed her name on the check. In doing so Rutherford misspelled her name, scratched it out, and corrected it. She re-entered the bank, and this time she successfully cashed the check and left with $2,000 in one hundred dollar bills. Rutherford gave her $500 of those funds, and she in turn gave the girl $5 for filling out the check.

Around 3:00 that afternoon, Rutherford visited his friend Johnny. He told Johnny that he had “bumped the old lady off” and showed him $1500 in cash. He wanted Johnny to hold $1400 of that amount for him. Rutherford said that he had hit the “old lady” in the head with a hammer, stripped her, and put her in the bathtub. Johnny refused to take the cash, and his mother later notified the police of Rutherford's claim to have committed a murder. Earlier that day Mrs. Salamon had made plans to go walking that evening with two neighbors. At 6:30 p.m. her neighbor Beverly tried to contact Mrs. Salamon by phone but got no answer. She went to Mrs. Salamon's house, saw her car outside, and realized that she must still be at home. Beverly rang the front doorbell. After receiving no answer, she went around back and through the sliding glass doors saw that the television was on and that the normally calm dogs were jumping around excitedly. She retrieved a spare key to the house, met up with the other neighbor who was to have gone walking with them that night, and the two women let themselves into Mrs. Salamon's home.

When the two women entered the kitchen through the carport door, they heard water running. They followed the sound to a little-used guest bathroom. There they were horrified to find Mrs. Salamon's naked body floating in the water that filled the tub to overflowing. Realizing that their friend was dead, the stunned women went to call for help. When walking through the house, Beverly noticed that Mrs. Salamon's eyeglasses were on the kitchen floor underneath the counter. The makings of a tomato sandwich were out on the counter. Mrs. Salamon had liked to eat tomato sandwiches for lunch. When crime scene investigators arrived they found three fingerprints on the handle of the sliding door to the bathtub, one fingerprint on the tile wall of the tub, and a palm print on the window sill inside the tub with the fingers up and over the sill as though the person had grabbed it. All of those prints were later identified as Rutherford's. Blood was spattered on the bathroom walls and floor.

According to an expert, the spatter pattern indicated that the blows occurred while Mrs. Salamon was sitting or kneeling on the bathroom floor. Mrs. Salamon's naked body floated face-up in the water. She had been viciously beaten. There were bruises on her nose, chin, and mouth and a cut on the inside of her lip consistent with a hand being held forcefully over her face. Her lungs showed signs of manual asphyxiation, apparently from someone covering her nose and mouth. Her arms and knees were bruised and scraped, and her left arm was broken at the elbow. Of the three large wounds on her head, two were consistent with being struck with a blunt object or having her head slammed down. The other wound, a puncture that went all the way to the bone, appeared to be from a blow with a claw hammer or screwdriver. Her skull was fractured from one side to the other. Severe as those injuries were, none of them were the actual cause of Mrs. Salamon's death. Although Rutherford had beaten and smothered her, she had water in the lungs. That shows the 63-year-old widow was still alive when Rutherford stripped off her clothes and placed her in the bathtub to drown.

National Coalition to Abolish the Death Penalty

Do Not Execute Arthur Rutherford!

Arthur Dennis Rutherford
October 18, 2006
Florida

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

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

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

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

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

Bradenton Herald

"Significant events in case of Arthur Rutherford." (Associated Press Wed, Oct. 18, 2006)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Save Arthur Rutherford Forum

Floridians for Alternatives to the Death Penalty

Arthur D. Rutherford

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

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

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

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

LETTER WRITING SUGGESTIONS

Please write a hand written note to Governor Bush with a message similar to the following suggested language: "I am writing to ask you to commute the death sentence of Arthur Rutherford to Life Without Parole. He is clearly not "the worst of the worst," and executing him will solve nothing."

Feel free to add any further language, for example: Call for a "Time-Out on Executions" in general until we can be assured that the system is both fair and accurate. If you are Christian, and especially if you are Catholic, challenge Governor Bush to adopt a completely "Pro-Life" position by respecting ALL life, and reference his positions against abortion and euthanasia. "We remember the victim, Stephen Alan Taylor, but killing Clarence Hill will do nothing to bring Officer Taylor back or heal the wounds still felt by his family.

WRITE TO: Governor Jeb Bush

Florida Commission on Capital Cases

Arthur Rutherford - Pleadings 2005 & 2006

Death Warrant – 11/29/05

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

U.S. Court of Appeals – 11th Circuit
Complaint for Declaratory & Injunctive Relief Appeal – 01/28/06
Order Affirming Dismissal of Complaint for Declaratory & Injunctive Relief - 1/30/2006
Order Denying Application to File Successive Habeas & Stay of Execution - 1/30/2006
Order Denying Application to File Successive Habeas & Stay of Execution
(on remand) - 10/05/2006

U.S. District Court – Northern District:
Complaint for Declaratory & Injunctive Relief - 1/27/2006
Order Dismissing Complaint for Declaratory & Injunctive Relief - 1/28/2006

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

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

"Florida has executed 62 inmates since 1979." (The Associated Press) Following is a list of 62 inmates executed since Florida resumed executions in 1979:

1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.

2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.

3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.

4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.

5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.

6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..

9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.

< 22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.

26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.

27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.

28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.

29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.

34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.

35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.

36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.

41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was execited by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

61. Clarence Hill

62. Arthur Rutherford

Rutherford v. State, 545 So.2d 853 (Fla. 1989) (Direct Appeal).

Defendant was convicted of first-degree murder and sentenced to death by the Circuit Court, Santa Rosa County, Clyde B. Wells, J., and he appealed. The Supreme Court held that: (1) prosecutor's discovery violation was not calculated to provoke defendant to move for mistrial, within meaning of double jeopardy rule; (2) special aggravating circumstance for murders “committed in a cold, calculated, and premeditated manner,” was not limited to execution or contract murders; and (3) evidence that defendant had served in armed forces could, but did not have to be, considered by sentencing judge as mitigating factor. Affirmed. McDonald, J., concurred in conviction, but dissented from sentence.

PER CURIAM.
Arthur D. Rutherford appeals from a death sentence imposed after a jury found him guilty of first-degree murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Rutherford was indicted in the 1985 murder and armed robbery of sixty-three-year-old Stella Salamon, whose body was found in the bathtub of her home in Milton, Florida. In January 1986, a jury in Santa Rosa County found him guilty as charged and recommended a death sentence by an eight-to-four vote. However, the trial court declared a mistrial due to a discovery violation by the state. Upon retrial in December 1986 in Okaloosa County, the prosecution introduced the following pertinent evidence.

The medical examiner testified that Mrs. Salamon's left arm was broken at the elbow and the upper part of the arm was bruised, that there were bruises on her face and cuts on her lip, and that there were three severe wounds on her head. Two of these injuries were consistent with having been made by a blunt instrument or by her head being struck against a flat surface; another was a puncture wound; and all were associated with skull fracture. Cause of death was by drowning or asphyxiation, evidence of both being present.

Two women testified that Rutherford had asked them to help him cash a $2,000 check, on which he had forged Mrs. Salamon's signature. Two other witnesses testified that before Mrs. Salamon's death Rutherford had told them that he planned to get some money from a woman by forcing her to write him a check. He said he would then kill her by hitting her in the head and drowning her in the bathtub to make her death look accidental. One witness quoted him as saying, “I can't do the time, but I'm damn sure gonna do the crime.” Another witness testified that on the day of the murder Rutherford indicated he might kill Mrs. Salamon, and yet another witness said Rutherford told him later that day that he had killed “the old lady” by hitting her in the head with a hammer, and then had put her in the bathtub. Law enforcement officers testified that Rutherford's fingerprints and palm prints were found in the bathroom of Mrs. Salamon's home.

The jury recommended death by a seven-to-five vote, and the judge imposed the death penalty. He found four aggravating factors: the killing was especially heinous, atrocious, and cruel; the killing was cold, calculated, and premeditated; it was committed during the course of a robbery; and it was committed for pecuniary gain. Finding that the latter two factors should be considered only as one, he concluded there were three aggravating circumstances. In mitigation, he found only that Rutherford had no significant history of criminal activity.

Rutherford raises only one issue regarding the guilt phase. He claims the second trial violated his constitutional rights by placing him in double jeopardy. In the first trial, the state elicited testimony from Sherman Pittman and Kenneth Cook to the effect that Rutherford had told them in advance of the killing that he planned to murder an elderly woman for her money. Despite a demand from the defense which would have called for advising counsel of these statements, the state had not provided them during discovery. Ultimately, the judge held a Richardson hearing FN1 and found that the prosecution had committed a willful discovery violation. This ruling formed the basis for granting the defendant's motion for mistrial.FN2

FN1. Richardson v. State, 246 So.2d 771 (Fla.1971). FN2. Though defense counsel did learn from the deposition of a deputy sheriff that one of the witnesses had told law enforcement of Rutherford's statement, the prosecutor represented to the court that he knew of both statements, in detail, the day before the two witnesses testified. In view of the state's continuing duty to disclose material demanded by the defense, it was error for the prosecutor not to tell defense counsel what he knew.

The general rule is that when a mistrial is declared upon the defendant's motion or with his consent or because of a manifest, urgent, or absolute necessity, jeopardy does not attach and the defendant may be retried. McLendon v. State, 74 So.2d 656 (Fla.1954); State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951). An exception occurs when the prosecution goads the defense into moving for a mistrial and gains an advantage from the retrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Rutherford contends that the prosecutor's deliberate discovery violation falls into this category. We disagree.

The record of the first trial shows that the prosecutor learned the nature of Pittman's and Cook's testimony only the day before they testified, though they had been on the state's witness list from the beginning of the discovery process. He argued that defense counsel's failure to depose the witnesses relieved the state of its obligation to disclose the nature of the statements they had made to police. While the prosecutor misapprehended his objection, there is no indication that his motive was to obtain a mistrial. The objective of seeking to cause the other party to move for a mistrial is to “save” a losing case. Our review of the record in the first case convinces us the prosecutor's motive was to introduce evidence that tended to convict Rutherford, not to create error that would force a new trial. As there was no goading the defense into moving for a mistrial, the Oregon v. Kennedy exception does not apply and it was not error to try Rutherford a second time.

Rutherford next argues that the sentencing order demonstrates that the trial court improperly considered Rutherford's lack of remorse in making the finding of heinous, atrocious, and cruel. The order stated: (h) The Court finds that this crime was especially heinous, atrocious and cruel. The evidence in this case showed that the victim had a dislocated arm, leading the Court to the conclusion that the defendant dislocated the victim's arm in the course of the robbery. Additionally, the victim had a number of gashes on her head where she had obviously had her head struck by an object or had her head bashed against an object causing severe injuries to the victim. Additionally, the victim was placed in the bathtub where she was submerged under water. Her death was attributed to asphyxiation, but the pathologist could not rule out the effects of the blows as a cause of death.

While the Court cannot use the attitude of the defendant and his lack of remorse as an aggravating circumstance, the Court does find that the defendant's lack of remorse adds weight to the Court's determination that the crime was especially heinous, atrocious and cruel. Sireci v. State, 399 So 2d 964 (Fla.1981). The case of Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), was subsequently overruled in Pope v. State, 441 So.2d 1073 (Fla.1983). The sentencing order makes it clear, however, that the judge knew that a defendant's lack of remorse could not be considered as an aggravating circumstance. We view the comment as a gratuitous statement which did not affect the finding already made by the judge that the crime was especially heinous, atrocious, and cruel. The evidence supports this finding.

Rutherford also argues that this case does not contain the heightened premeditation necessary to support a finding that the killing was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. We disagree. Rutherford apparently planned for weeks in advance to force Mrs. Salamon to write him a large check and then kill her in a manner that would look like an accidental drowning. Except for being able to force her to write the check, he followed his plan to the letter.

Rutherford relies on language that originated in Herring v. State, 446 So.2d 1049, 1057 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984), to the effect that this aggravating circumstance is limited to “execution or contract murders or witness-elimination murders.” As we said in Herring, however, “this description is not intended to be all inclusive.” Id. While we receded from Herring 's outer limits in Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988), we reiterate that the finding of cold, calculated, and premeditated is not limited to execution-style murders. It is appropriate, as we indicated in Rogers, when there is evidence of calculation, which we defined as consisting “of a careful plan or prearranged design.” Id. at 533. Clearly, Rutherford's actions were “calculated,” as we have defined the term.

Next Rutherford argues that the trial court did not consider mitigating evidence FN3 and also improperly counted the aggravating and mitigating circumstances rather than weighing them. Again, we disagree. The evidence that Rutherford had served in the armed forces in Vietnam may be considered by a trial judge as a mitigating factor, but need not be. The judge's order did mention the number of aggravating and mitigating factors found, but from the instruction he read to the jury it is clear that he knew this was a weighing process, not a mechanical case of addition. FN3. The mitigating evidence consisted of testimony from Rutherford's friends and family members about his background and his nonviolent nature and from Rutherford himself about his experiences as a Marine infantryman in Vietnam. He did not make a claim of posttraumatic stress disorder.

Rutherford also attacks the sentencing order because of the statement that “the appropriate sentence in this case is the sentence that was recommended by the trial jury by a majority of seven and by the previous mistrial jury by a majority of eight.” This is much different than Huff v. State, 495 So.2d 145 (Fla.1986), in which the sentencing judge impermissibly took judicial notice of the evidence adduced at a first trial even though some of the evidence differed in the retrial. Despite the reference to the recommendation of the previous jury, we are convinced that the judge's sentence was predicated solely upon the evidence introduced in the present trial.

The last penalty-phase issue FN4 involves testimony from three witnesses to the effect that the victim was afraid of the defendant. The judge used this evidence to buttress his finding of cold, calculated, and premeditated. Without addressing the question of whether upon the facts of this case the victim's state of mind could have been relevant to this aggravating factor, there was no objection to these comments at trial. Indeed, one of them was elicited by defense counsel on cross-examination; thus the issue was waived. FN4. We reject without discussion Rutherford's claim that he should not have been placed in restraints before closing arguments in the penalty phase because of his threatening conduct, and a claim based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

Finally, Rutherford attacks the thirty-year sentence imposed for the armed-robbery conviction. Initially, the court did not prepare a sentencing guidelines scoresheet. We relinquished jurisdiction so that the proper procedure could be followed. The judge imposed the same sentence, using as his sole reason for departure from the presumptive sentence of three and one-half to four and one-half years the fact that the murder “was not scored in the guidelines and is not a component of armed robbery····” This is a valid reason to depart from the guidelines. Hansbrough v. State, 509 So.2d 1081 (Fla.1987). Finding no error in the record requiring reversal, we affirm the judgment of guilt and the sentence of death. It is so ordered. EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. McDONALD, J., concurs with conviction, but dissents from the sentence.

Rutherford v. State, 727 So.2d 216 (Fla. 1998) (PCR)

Following affirmance, 545 So.2d 853, of conviction of murder and sentence of death, petitioner moved to vacate, set aside, or correct sentence. The Circuit Court, Santa Rosa County, Kenneth B. Bell, J., denied relief. Petitioner appealed. The Supreme Court held that petitioner was not denied effective assistance of counsel at trial. Affirmed.

PER CURIAM.
Arthur Dennis Rutherford, an inmate under sentence of death, appeals the trial court's denial of relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1),(7), Fla. Const. For the reasons expressed below, we affirm.

I. PROCEDURAL STATUS

Rutherford, age 36 at the time of the crime, was charged with the 1985 murder and armed robbery of Stella Salamon. A jury found Rutherford guilty as charged and recommended death by a vote of eight to four; however, due to a discovery violation by the State, the trial court declared a mistrial. On retrial, Rutherford was represented by John Jay Gontarek and William Treacy. Both Gontarek and Treacy (hereinafter both separately and collectively referred to as “trial counsel”) were assistant public defenders, and neither represented Rutherford in his first trial.

The guilt-phase evidence at retrial included the fact that the victim's body was found in her bathtub, and that Rutherford's fingerprints and a palm print were found in the victim's bathroom. As detailed in the opinion on direct appeal: The medical examiner testified that Mrs. Salamon's left arm was broken at the elbow and the upper part of the arm was bruised, that there were bruises on her face and cuts on her lip, and that there were three severe wounds on her head. Two of these injuries were consistent with having been made by a blunt instrument or by her head being struck against a flat surface; another was a puncture wound; and all were associated with skull fracture. Cause of death was by drowning or asphyxiation, evidence of both being present.

Two women testified that Rutherford had asked them to help him cash a $2,000 check, on which he had forged Mrs. Salamon's signature. Two other wit-nesses testified that before Mrs. Salamon's death Rutherford had told them that he planned to get some money from a woman by forcing her to write him a check. He said he would then kill her by hitting her in the head and drowning her in the bathtub to make her death look accidental. One witness quoted him as saying, “I can't do the time, but I'm damn sure gonna do the crime.” Another witness testified that on the day of the murder Rutherford indicated he might kill Mrs. Salamon, and yet another witness said Rutherford told him later that day that he had killed “the old lady” by hitting her in the head with a hammer, and then had put her in the bathtub. Rutherford v. State, 545 So.2d 853, 854-55 (Fla.1989).

The jury found Rutherford guilty as charged. At the penalty phase, in addition to other evidence, the State presented the testimony of two witnesses that, on the day before her murder, the victim told them that she was fearful of Rutherford and wished he would stop coming by her house. Trial counsel did not object to this hearsay testimony. In mitigation, trial counsel presented lay character testimony from Rutherford's family and a friend regarding his positive character traits such as being a good father, a hard worker, loyal, respectful, nonviolent, honest and generous. Testimony was also presented regarding Rutherford's meager upbringing, and the fact that his involvement in Vietnam had changed him in that he had become jittery and nervous, had nightmares, and experienced night sweats. Rutherford testified on his own behalf in the penalty phase that he did not commit the murder in question. He also testified regarding his military service, including his horrifying experiences in Vietnam and his numerous military commendations.

The jury recommended death by a vote of seven to five. The trial court imposed the death penalty, finding three aggravating factors: that the murder was heinous, atrocious or cruel (“HAC”); cold, calculated and premeditated (“CCP”); and committed during the course of a robbery/for pecuniary gain (merged). The trial court found only one statutory mitigator: that Rutherford had no significant history of criminal activity. The trial court considered, but did not find, any nonstatutory mitigating circumstances.

In his subsequent rule 3.850 motion, Rutherford challenged the lawfulness of his conviction and death sentence on a number of grounds.FN1 In an initial order, the trial court summarily denied as procedurally barred all but four grounds involving ineffective assistance of counsel (“IAC”): IAC in the guilt phase for failing to investigate, prepare, and perform sufficiently; IAC in the penalty phase for failing to object to the hearsay testimony regarding the victim's fear of Rutherford; IAC in the penalty phase for failing to obtain a mental health expert for mitigation purposes; and IAC in the penalty phase for failing to investigate, prepare, and present substantial available mitigation. After an evidentiary hearing, the trial court denied relief on these IAC claims as well, detailing its analysis of the facts and applicable law in a twenty-nine-page order.

FN1. Specifically, Rutherford raised the following 15 claims in his 3.850 motion below: (1) ineffective assistance of counsel (“IAC”) at the guilt phase for failing to investigate, prepare, and perform sufficiently; (2) IAC at the penalty phase for failing to investigate, develop, and present substantial mitigation; (3) IAC at the penalty phase for failing to object to hearsay testimony regarding the victim's fear of Rutherford; (4) improper penalty-phase jury instructions that shifted the burden of proof to Rutherford; (5) improper penalty-phase jury instructions regarding aggravating circumstances; (6) inapplicability of CCP; (7) improper penalty-phase jury instruction on HAC; (8) untimely imposition of written death sentence; (9) trial court's refusal to find mitigators established by the record; (10) IAC at penalty phase for conflict of interest in revealing confidences and secrets to the trial court; (11) admission of inflammatory photographs; (12) improper introduction of nonstatutory aggravators at the penalty phase; (13) IAC at the penalty phase for failing to obtain mental-health expert; (14) improper robbery sentence without benefit of scoresheet; and (15) double jeopardy bar to retrial.

II. APPEAL

Rutherford now appeals, raising six issues: (1) whether trial counsel was ineffective for failing to object to the penalty-phase hearsay testimony of witnesses regarding the victim's fear of Rutherford; (2) whether trial counsel was ineffective for failing to procure and present expert mental health testimony in mitigation at the penalty phase; (3) whether trial counsel was ineffective in the penalty phase for failing to investigate, develop, and present substantial mitigating evidence regarding Rutherford's harsh childhood and Vietnam war experience; (4) whether the trial court erred in its initial order by summarily denying Rutherford's double jeopardy claim as procedurally barred; (5) whether trial counsel was ineffective in the guilt phase for failing to investigate, prepare, and perform sufficiently; and (6) whether the trial court erred in its initial order by summarily denying several of Rutherford's other claims as procedurally barred. We find issues four and six to be procedurally barred.FN2 As to the remaining issues that involve counsel's guilt-phase and penalty-phase performance, our review reveals no basis for reversing the trial court.

* * *

B. Failure To Present Adequate Mitigation

Rutherford's remaining issues on appeal relate to trial counsel's alleged failure to present adequate mitigation evidence. In determining ineffectiveness in this regard, and whether the penalty phase proceedings were reliable, “[t]he failure to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” Rose, 675 So.2d at 571; see also Hildwin, 654 So.2d at 109-10. Rutherford here claims ineffectiveness as a result of trial counsel's failure to procure and present expert mental health testimony and trial counsel's failure to investigate, develop and present substantial mitigating evidence regarding Rutherford's harsh childhood and Vietnam war experience.

1. Failure To Present Mental Health Testimony At the 3.850 hearing, Rutherford presented the opinion testimony of two psychologists regarding Rutherford's mental health during the time frame in which the crime occurred. They opined that Rutherford suffered from post-traumatic stress disorder (PTSD) and was alcohol dependent. It is un-controverted that at Rutherford's retrial no mental health expert testimony was offered, and Rutherford made no “claim of posttraumatic stress disorder.” Rutherford, 545 So.2d at 856 n. 3.

However, at Rutherford's first trial, competency evaluations were prepared by two separate mental health professionals, both of whom found Rutherford competent to stand trial.FN3 The competency evaluations indicated that Rutherford had a “fairly well documented history of alcoholism” and displayed “symptoms which are indicative of an anxiety disorder resulting from his combat experiences in Vietnam.” Dr. James Larson, one of Rutherford's experts at the 3.850 hearing, acknowledged that the use of the phrase “anxiety disorder associated with Vietnam” is “a slightly different phrase” than PTSD, but that the evaluations were not “inconsistent” with his opinion; “the focus is simply different.” Thus, there is no indication that the two available competency evaluations ignored any “ ‘clear indications' of mental health problems.” See Rose v. State, 617 So.2d 291, 295 (Fla.1993) (quoting State v. Sireci, 502 So.2d 1221, 1224 (Fla.1987)).

FN3. Read together, these competency evaluations indicate that, at the time of the offense, Rutherford was “sane” or not in any “disturbed mental condition,” and did not have “any severe impairment of the cognitive processes involved in judgment or reasoning” or suffer from “any mental infirmity or defect or disease resulting in any loss of ability to understand or reason accurately.” We of course recognize that competency evaluations are different from mitigation evaluations, and in no way mean to imply here that one can necessarily take the place of the other.

At Rutherford's retrial, trial counsel presented these competency evaluations to the trial court judge, but not to the jury. Instead, the jury heard only the lay testimony previously discussed from a friend, family members, and Rutherford himself regarding his positive character traits, his meager upbringing, and the consequences of his involvement in Vietnam. At the 3.850 hearing, trial counsel testified that there was no indication from his discussions with Rutherford or his family, friends, and co-workers that Rutherford suffered any significant mental impairment. As to the competency evaluations, trial counsel testified that he intentionally did not introduce them in evidence before the jury. The evaluations reflected that Rutherford had episodes of violence (he had previously assaulted his father and his brother, and broken his hand when he hit a wall) and had spent time in jail and on probation for an assault and battery charge. Trial counsel testified that it was his strategic decision to present the competency evaluations to the trial court judge, but not to the jury, as mitigating evidence of Rutherford's mental health.

Trial counsel also testified that he was aware of similar counseling and Veteran's Administration records reflecting Rutherford's alcoholism and PTSD, but that the mitigation strategy focused on the “humanization” of Rutherford: The theory on mitigation was to make [Rutherford] look as human as possible. Knowing the jury has convicted him and he is now a convicted person try to humanize him ··· as a good fellow, good father, a good citizen, loyal Marine, ··· loyal church member. Loyal and trustworthy, friendly···· [T]he strategy was the humanization and the goodness ··· of A.D. Rutherford. The trial court found that “[t]his strategy was reasonable under the circumstances” of this case, and that trial counsel was not deficient for failing to pursue mental mitigation. As found by the trial court: Counsel made the decision to focus on the solid, “Boy Scout” character traits of Mr. Rutherford. The theory was that Mr. Rutherford was a “good ol' fellow” who must have just lost it. That he was really a good guy. The attempt was to make him look as human as possible, to focus on his positive traits. As for the information contained in the competency reports, the trial court also found that trial counsel determined the contents of these reports would be detrimental, especially in view of the strategy dictated by Mr. Rutherford's insistence of innocence. But, to assure the ultimate sentencer had the benefit of these evaluations, counsel did submit them (despite the apparent objection of Mr. Rutherford) to the trial judge for his consideration.

Based on the record in this case, we find no error in the trial court's finding that trial counsel was aware of possible mental mitigation, but made a strategic decision under the circumstances of this case to instead focus on the “humanization” of Rutherford through lay testimony. “Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected.” State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987); see also Bryan v. Dugger, 641 So.2d 61, 64 (Fla.1994) (affirming denial of 3.850 relief where mitigation strategy was to “humanize” the defendant and trial counsel made a tactical decision not to call mental health expert; noting that “[t]his is not a case which defense counsel failed to prepare”).

The fact that trial counsel here was aware of, but rejected, possible mental mitigation in favor of a “humanization” strategy distinguishes cases such as Rose where this Court remanded for a new resentencing proceeding because it was apparent from the record that “counsel never attempted to meaningfully investigate mitigation.” 675 So.2d at 572. The evidence that would have been available in Rose if counsel had conducted a reasonable investigation included the defendant's abuse as a child, an IQ of 84, previous head trauma, chronic alcoholism and a previous diagnosis of a psychiatric disorder. See id. at 571. We found under the facts of that case that trial counsel's mitigation decisions were “neither informed nor strategic,” and that “there was no investigation of options or meaningful choice.” Id. at 572-73. Likewise, in Heiney v. State, 620 So.2d 171, 173 (Fla.1993), this Court rejected the State's argument that trial counsel's decision not to present any mitigation was “strategic,” holding that counsel “did not make decisions regarding mitigation for tactical reasons. [Counsel] did not even know that mitigating evidence existed.” See also Hildwin, 654 So.2d at 109 (remanding for new sentencing proceeding where “[t]rial counsel's sentencing investigation was woefully inadequate,” as evidenced by the fact that he “was not even aware of [the defendant's] psychiatric hospitalizations and suicide attempts”); Phillips v. State, 608 So.2d 778, 782-83 (Fla.1992) (remanding for new sentencing proceeding where trial counsel did “virtually no preparation for the penalty phase”).

In evaluating the Strickland prongs of deficiency and prejudice, it is important to focus on the nature of the mental mitigation Rutherford now claims should have been presented. This focus is of assistance when determining whether trial counsel's choice was a reasonable and informed strategic decision, as well as whether the failure to present such testimony (assuming that the failure amounted to a deficiency in performance) deprived the defendant of a reliable penalty phase proceeding.

For example, in Middleton v. State, 465 So.2d 1218, 1224 (Fla.1985), we affirmed the denial of 3.850 relief where the urged mitigating factors involving a psychiatric report and the defendant's childhood were “relatively minimal” compared to the aggravators at issue: prior violent felony, under sentence of imprisonment, pecuniary gain, and CCP. In contrast, in Rose, 675 So.2d at 571, in addition to failing to present evidence that the defendant was a slow learner with an IQ of 84, the psychological testimony at the 3.850 hearing included the fact that Rose suffered from organic brain damage and his ability to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was impaired at the time of the offense. See also Phillips, 608 So.2d at 782-83 (new sentencing hearing where strong mental mitigation included lifelong deficits in adaptive functioning, a schizoid personality, borderline intelligence range with an IQ between 73 and 75, and an inability to form the requisite intent for CCP and HAC); accord Mason v. State, 489 So.2d 734, 736 (Fla.1986)(new competency hearing ordered where significant evidence of an extensive history of mental retardation, drug abuse and psychotic behavior were not uncovered by defense counsel).

In this case, Dr. James Larson, a psychologist, testified that, in the time frame in which the crime occurred, Rutherford was suffering from PTSD, was alcohol dependent, and was under a lot of “stressors” in his marital and family life. Dr. Larson testified that, at the time of the offense, Rutherford was “likely under [an] extreme emotional disturbance,” but based his conclusion upon the fact that Rutherford had an alcohol problem and problems with his wife. Dr. Robert Baker, also a psychologist, similarly testified that Rutherford “had post traumatic disorder, chronic, and severe.” However, Dr. Baker's testimony was even less specific than Dr. Larson's, and he never explicitly connected Rutherford's emotional state to the murder. The trial court discounted this testimony as the result of a defendant who was now “compliant” and of psychological examinations occurring years after the 1985 murder at issue.FN4 The trial court further found that “neither expert connected Mr. Rutherford's personality disorder with the crime itself,” and that

FN4. Specifically, Dr. Larson did not evaluate Rutherford until 1991, six years after the 1985 murder at issue here; Dr. Baker did not evaluate Rutherford until 1996, more than ten years after the subject murder. [t]he facts of the case do not establish that when the crime occurred Mr. Rutherford was intoxicated or was having an episodic event or other debilitating symptom of his PTSD. There is no evidence Mr. Rutherford's disorder contributed to his actions in effecting the murder. The trial court concluded that “[n]o statutory mitigators were proven through the testimony of Dr. Larson and Dr. Baker.” As further found by the trial court in this case:

Mr. Rutherford has a personality disorder associated with anxiety. His PTSD is classified as severe, not chronic. There is no indication he has a mental illness, is mentally retarded, or has any organic brain damage. There is no thought disorder or grossly disturbed thinking. In other words, his PTSD is not so severe that it involves serious secondary symptoms such as neurosis or psychosis. The trial court acknowledged that [d]espite not reaching the level of statutory mitigation, the collateral proceeding evidence made it clear that Mr. Rutherford's personality disorder and purported alcoholism were available non-statutory mitigators. But so did the pre-trial evidence in the hands of trial counsel. Though not as extensively, both trial counsel were aware of these same non-statutory mental health mitigators through the information in the two competency/sanity evaluations as supplemented by the other witnesses and the evidence.

The additional evidence of mitigation brought forward in the 3.850 does not approach the level of mitigation found in cases such as Rose, Middleton, and Phillips. We find no error in the trial court's assessment of the mental mitigation evidence presented at the 3.850 hearing or its assessment of trial counsel's trial strategy.

2. Failure to Investigate other Mitigation

Rutherford further argues as a basis for ineffective assistance of counsel that his trial counsel was deficient for failing to investigate, develop, and present substantial available mitigating evidence regarding his harsh childhood and Vietnam war experience. At trial, the “mitigating evidence consisted of testimony from Rutherford's friends and family members about his background and his nonviolent nature and from Rutherford himself about his experiences as a Marine infantryman in Vietnam.” Rutherford, 545 So.2d at 856 n. 3. At the 3.850 hearing, Rutherford presented additional lay testimony that he increased his consumption of alcohol and had headaches upon returning from Vietnam; that his father had a drinking problem and was physically abusive; and that Rutherford had a troubled relationship with his wife. In many other respects, the 3.850 testimony was essentially cumulative to the lay character testimony presented by trial counsel in the original penalty phase. See Woods v. State, 531 So.2d 79, 82 (Fla.1988) ( “[T]he testimony now advanced, while possibly more detailed than that presented at sentencing, is, essentially, just cumulative to the prior testimony. More is not necessarily better.”)

As to the drinking problem and troubled relationship with his wife, these aspects were contained in the competency evaluations and were known to trial counsel. Trial counsel elected not to present this negative evidence in favor of depicting Rutherford as a decent family man. As to his claim that counsel should have elicited more testimony about his “harsh, abusive, and impoverished childhood,” the trial court found:

The evidence presented at the hearing was not conclusive of an abusive situation. In fact, except for the testimony of his brother William, the other family members portrayed an essentially healthy family life quite distinct from the seriously dysfunctional family portrayed in the motion. Times were hard, and his father had a problem with alcohol, but, given the time and circumstances of Mr. Rutherford's childhood and conflicting stories from within his own family, it is difficult to say that his childhood was in fact abusive.

Additionally, evoking images of an abusive childhood and debilitating war experience would have been inconsistent with the reasonable penalty phase strategy [to humanize Rutherford] developed by counsel. In further denying relief on this claim, the trial court found no deficiency because “any failure to present additional mitigating testimony [in this regard was] more the responsibility of Mr. Rutherford than his counsel. He refused to help his counsel develop mitigation ··· [and] insisted on pursuing the defense of innocence.” Moreover, he not only refused to cooperate, but actually encouraged his parents not to speak with defense investigators. The trial court concluded that “[g]iven the limitations created by Mr. Rutherford's refusal to assist in a viable defense, counsel made reasonable tactical decisions with respect to the presentation of mitigating evidence about Mr. Rutherford's entire background inclusive of his childhood and war record.” We find additional support for counsel's testimony about his difficulties with Rutherford, based on the fact that Rutherford was “placed in restraints before closing arguments in the penalty phase because of his threatening conduct.” Rutherford, 545 So.2d at 857 n. 4.

We find no error in the trial court's determination that Rutherford's lack of cooperation was a hindrance to presenting additional mitigation evidence regarding his military background. Trial counsel testified to himself having a military background and being otherwise familiar with how to effectively use military decorations in mitigation, but that “Rutherford did not want me to use any military background or record, and would not discuss Vietnam service or his Marine Corps service in general” until he unexpectedly did so on the stand during the penalty phase. Trial counsel similarly testified that Rutherford discouraged his parents from talking to or cooperating with trial counsel. As found by the trial court, Rutherford's uncooperativeness at trial belies his present claim that his trial counsel was deficient for not investigating and presenting mitigation regarding his harsh childhood and military history.

Furthermore, neither his harsh childhood nor his military history are statutory mitigators, although both are potential nonstatutory mitigators. As we held in Rutherford's direct appeal, “[t]he evidence that Rutherford had served in the armed forces in Vietnam may be considered by a trial judge as a mitigating factor, but need not be.” Rutherford, 545 So.2d at 856. Compare Masterson v. State, 516 So.2d 256, 258 (Fla.1987) (evidence that defendant was wounded, honorably discharged from Vietnam, introduced to drugs in Vietnam, suffered post-traumatic stress disorder, and consumed substantial amounts of drugs and alcohol on day of the murder, together with other matters presented in penalty phase, was sufficient to establish a reasonable basis for the jury to find mitigating circumstances sufficient to recommend life).

3. Lack of Prejudice

Even if the additional mitigation evidence Rutherford presented at the 3.850 hearing had been heard and considered by the jury and original judge, it is not reasonably probable, given the nature of the mitigation offered, that this altered picture would have led to the imposition of a life sentence, outweighing the multiple substantial aggravators at issue in this case (HAC, CCP, and robbery/ pecuniary gain). Rutherford was not deprived of a reliable penalty proceeding. See Rose, 675 So.2d at 571. In Haliburton v. Singletary, 691 So.2d 466, 471 (Fla.1997), we held that “[i]n light of the substantial, compelling aggravation found by the trial court [i.e., under sentence of imprisonment, prior violent felonies, committed during a burglary, and CCP FN5], there is no reasonable probability that had the mental health expert testified, the outcome would have been different.” Similarly, as we held in Lusk v. State, 498 So.2d 902, 906 (Fla.1986): FN5. See Haliburton v. State, 561 So.2d 248, 249 n. 1 (Fla.1990) (discussing applicable aggravators on direct appeal).

The evidence now claimed by appellant that should have been admitted in mitigation is largely evidence of appellant's troubled family background. Appellant testified about his background and personal problems during the penalty phase. We must agree with the trial court below in its order denying relief, that this “new evidence” is largely cumulative and would not have affected the ultimate sentence imposed in view of the aggravating factors [i.e., HAC, under sentence of imprisonment, and previous felony conviction FN6 ] affirmed by this Court in appellant's direct appeal. FN6. See Lusk v. State, 446 So.2d 1038, 1042-43 (Fla.1984) (discussing applicable aggravators on direct appeal).

See also Breedlove v. State, 692 So.2d 874, 878 (Fla.1997) (affirming denial of 3.850 relief where “the three aggravating factors we have previously affirmed [prior violent felony, during course of burglary, and HAC FN7] overwhelm whatever mitigation the [3.850] testimony of [the defendant's] friends and family members could provide”). FN7. See Breedlove v. State, 413 So.2d 1, 9 (Fla.1982) (discussing applicable aggravators on direct appeal).

VI. CONCLUSION

Considering both the failure to object and the failure to present the mitigation evidence presented at the 3.850 proceeding, we agree with the trial court that counsel's performance considered as a whole was not deficient. Rutherford has failed to demonstrate either prong of an ineffective assistance of counsel claim. Cast in Strickland terms, Rutherford has failed to show that his trial counsel's alleged errors were so serious as to deprive him of “a fair trial, a trial whose result is reliable,” 466 U.S. at 687, 104 S.Ct. 2052, and our confidence in the outcome is not undermined. See id. at 694, 104 S.Ct. 2052; see also Rose, 675 So.2d at 574. Accordingly, we affirm the trial court's denial of 3.850 relief. Last, but not least, we wish to commend the trial court's diligence in conducting an extensive evidentiary hearing and thereafter providing a thorough and well-analyzed order. This conscientious attention by the trial court greatly assists this Court in determining whether the appellant's claims have legal merit, and whether the asserted flaws undermine our confidence in this capital proceeding. It is so ordered. HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.

Rutherford v. Moore, 774 So.2d 637 (Fla. 2000) (Postconviction).

After the Supreme Court, 545 So.2d 853, affirmed defendant's conviction for first-degree murder, and the Supreme Court affirmed denial of defendant's motion for post-conviction relief, defendant filed petition for writ of habeas corpus. The Supreme Court held that appellate counsel was not ineffective. Writ denied.

PER CURIAM.
Arthur Dennis Rutherford, a prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons that follow, we deny habeas relief.

BACKGROUND

Rutherford was convicted and sentenced to death for the 1985 murder and armed robbery of sixty-three-year-old Stella Salamon, whose body was found in the bathtub of her home. After the first jury convicted Rutherford and recommended a sentence of death by a vote of eight to four, the trial court declared a mistrial due to a discovery violation by the State. We have previously summarized the evidence presented during the retrial as follows:

The medical examiner testified that Mrs. Salamon's left arm was broken at the elbow and the upper part of the arm was bruised, that there were bruises on her face and cuts on her lip, and that there were three severe wounds on her head. Two of these injuries were consistent with having been made by a blunt instrument or by her head being struck against a flat surface; another was a puncture wound; and all were associated with skull fracture. Cause of death was by drowning or asphyxiation, evidence of both being present.

Two women testified that Rutherford had asked them to help him cash a $2,000 check, on which he had forged Mrs. Salamon's signature. Two other witnesses testified that before Mrs. Salamon's death Rutherford had told them that he planned to get some money from a woman by forcing her to write him a check. He said he would then kill her by hitting her in the head and drowning her in the bathtub to make her death look accidental. One witness quoted him as saying, “I can't do the time, but I'm damn sure gonna do the crime.” Another witness testified that on the day of the murder Rutherford indicated he might kill Mrs. Salamon, and yet another witness said Rutherford told him later that day that he had killed “the old lady” by hitting her in the head with a hammer, and then had put her in the bathtub. Law enforcement officers testified that Rutherford's fingerprints and palm prints were found in the bathroom of Mrs. Salamon's home. Rutherford v. State, 545 So.2d 853, 854-55 (Fla.), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 341 (1989) ( Rutherford I ).

The jury found Rutherford guilty as charged. During the penalty phase, the State presented additional evidence including “the testimony of two witnesses that, *642 on the day before her murder, the victim told them that she was fearful of Rutherford and wished he would stop coming by her house.” Rutherford v. State, 727 So.2d 216, 217-18 (Fla.1998) ( Rutherford II ). In mitigation, defense counsel presented lay character testimony from Rutherford's family and a friend regarding his positive character traits such as being a good father, a hard worker, loyal, respectful, nonviolent, honest and generous. Testimony was also presented regarding Rutherford's meager upbringing, and the fact that his involvement in Vietnam had changed him in that he had become jittery and nervous, had nightmares, and experienced night sweats. Rutherford testified on his own behalf in the penalty phase that he did not commit the murder in question. He also testified regarding his military service, including his horrifying experiences in Vietnam and his numerous military commendations. Id. at 218.

The jury recommended a sentence of death by a vote of seven to five. See Rutherford I, 545 So.2d at 855. The judge imposed the death penalty, finding three aggravating circumstances to be applicable: (1) the murder was especially heinous, atrocious, and cruel (HAC); (2) the murder was cold, calculated, and premeditated (CCP); and (3) Rutherford committed the murder during the course of a robbery and committed the murder for pecuniary gain (merged). See id. In mitigation, the court found only that Rutherford had no significant history of criminal activity. See id. On appeal, this Court affirmed Rutherford's convictions and sentences. FN1 See id. at 857. Rutherford then filed a motion for postconviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, challenging his conviction and death sentence on fifteen grounds.FN2 The trial court summarily denied all of Rutherford's claims except those alleging ineffectiveness of trial counsel. See Rutherford II, 727 So.2d at 218. After holding an evidentiary hearing on his ineffectiveness claims, the trial court also denied relief on these claims. See id. This Court affirmed *643 the denial of postconviction relief.FN3

FN1. The Court found the following claims raised on direct appeal to be without merit: (1) the second trial violated Rutherford's constitutional rights by placing him in double jeopardy; (2) the trial court improperly considered Rutherford's lack of remorse in finding the HAC circumstance to be applicable; (3) the State did not establish the heightened premeditation necessary to support the CCP aggravating circumstance; (4) the trial court failed to consider mitigating evidence present in the record; (5) the trial judge impermissibly considered the recommendation of death by the previous jury; (6) the trial court improperly allowed three witnesses to testify that the victim was afraid of the defendant; (7) Rutherford should not have been placed in restraints before closing arguments during the penalty phase; and (8) a claim based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). See Rutherford I, 545 So.2d at 855-57 & n. 4.

FN2. Rutherford raised the following claims in his 3.850 petition: (1) ineffective assistance of counsel (IAC) at the guilt phase for failing to investigate, prepare, and perform sufficiently; (2) IAC at the penalty phase for failing to investigate, develop, and present substantial mitigation; (3) IAC at the penalty phase for failing to object to hearsay testimony regarding the victim's fear of Rutherford; (4) improper penalty-phase jury instructions that shifted the burden of proof to Rutherford; (5) improper penalty-phase jury instructions regarding aggravating circumstances; (6) inapplicability of CCP; (7) improper penalty-phase jury instruction on HAC; (8) untimely imposition of written death sentence; (9) trial court's refusal to find mitigators established by the record; (10) IAC at penalty phase for conflict of interest in revealing confidences and secrets to the trial court; (11) admission of inflammatory photographs; (12) improper introduction of nonstatutory aggravators at the penalty phase; (13) IAC at the penalty phase for failing to obtain mental-health expert; (14) improper robbery sentence without benefit of scoresheet; and (15) double jeopardy bar to retrial. Rutherford II, 727 So.2d at 218 n. 1.

FN3. Rutherford raised six issues in his 3.850 appeal: (1) ineffectiveness during the penalty phase for failing to object to the hearsay testimony regarding the victim's fear of Rutherford; (2) ineffectiveness for failing to obtain a mental health expert to offer mitigation evidence during the penalty phase; (3) ineffectiveness for failing to develop mitigating evidence; (4) the trial court erred in summarily denying Rutherford's double jeopardy claim as procedurally barred; (5) trial counsel was ineffective during the guilt phase for failing to investigate, prepare, and perform; (6) the trial court erred in summarily denying several of Rutherford's claims. See Rutherford II, 727 So.2d at 218. This Court found issues four and six to be procedurally barred and found no basis to reverse the trial court on the remaining claims. See id. at 218-26 & n. 2. In the present habeas petition, Rutherford raises eleven claims of ineffectiveness of appellate counsel.

* * *

Finally, in his eleventh claim, Rutherford argues that his appellate counsel was ineffective for not arguing on appeal that error occurred when the trial court failed to properly state reasons for imposing the death penalty during the sentencing hearing and then failed to file the written sentencing order for eight days. In Rutherford II, this Court affirmed the trial court's finding that this substantive claim was procedurally barred in his 3.850 motion because it could have been raised on direct appeal, even though couched in terms of ineffective assistance of trial counsel. 727 So.2d at 218-19 n. 2. We now reject Rutherford's current claim that appellate counsel was ineffective for failing to raise this issue on direct appeal because the underlying issue is without merit.

In Van Royal v. State, 497 So.2d 625, 628 (Fla.1986), this Court vacated a death penalty sentence because the trial court overrode the jury's life recommendation without making any oral findings at the sentencing hearing and then did not file a written sentencing order for six months, which was after the record on appeal had been certified to this Court. We stated that as long as sentencing orders are filed “on a timely basis before the trial court loses jurisdiction, we see no problem.” Id. Then, in Muehleman v. State, 503 So.2d 310, 317 (Fla.1987), we declined to vacate a death sentence on the grounds that the sentencing order had been filed two-and-one-half months after the oral pronouncement of sentence, but prior to the record being certified to this Court.

In a subsequent case decided after the direct appeal in Rutherford I, the Court established a prospective procedural rule “that all written orders imposing a death sentence be prepared prior to the oral pronouncement of sentence for filing concurrent with the pronouncement.” Grossman v. State, 525 So.2d 833, 841 (Fla.1988). However, this Court has previously rejected arguments that Grossman applied retrospectively to cases in which the penalty phase occurred before the decision in Grossman. See Holton v. State, 573 So.2d 284, 291 (Fla.1990) (finding no error where sentencing order was filed two months after the oral pronouncement and six days after the record was certified). In this case, the written sentencing order was filed only eight days after the sentencing order and Rutherford does not challenge the sufficiency of the written findings. This short lapse would not have constituted error under Van Royal, Muehleman, and Holton. Appellate counsel cannot be considered ineffective for failing to raise issues on appeal that would have been found to be meritless. See, e.g., Kokal, 718 So.2d at 142; Williamson, 651 So.2d at 86. For the reasons expressed in this opinion, we deny habeas relief. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

Rutherford v. State, 926 So.2d 1100 (Fla. 2006) (Successive Postconviction)

Background: Following affirmance on direct appeal of his conviction for first-degree murder, for which he received a sentence of death, 545 So.2d 853, and affirmance of the denial of his motion for post-conviction relief, 727 So.2d 216, governor signed death warrant and defendant filed successive motion for post-conviction relief. The Circuit Court, Santa Rosa County, Paul Rasmussen, J., denied motion without an evidentiary hearing. Defendant appealed.

Holdings: The Supreme Court held that:
(1) newly discovered evidence relating to witness's possible involvement in murder did not entitle defendant to new trial;
(2) defendant was not entitled to evidentiary hearing with respect to his post-conviction Brady claim that state had withheld evidence that witness had told law enforcement officers about her involvement in murder during their investigation of case;
(3) defendant was not entitled to evidentiary hearing on issue of whether lethal injection, as administered in Florida, constituted cruel and unusual punishment;
(4) defendant was not entitled to evidentiary hearing on claim that administration of pancuronium bromide during execution procedure would violate his right to free speech; and
(5) defendant was not entitled to obtain public records he had requested. Affirmed.

Rutherford v. Crosby, 385 F.3d 1300 (11th Cir. 2004) (Habeas).

Background: State prisoner whose capital murder conviction was affirmed on appeal, 545 So.2d 853, petitioned for writ of habeas corpus. The United States District Court for the Northern District of Florida, No. 01-00115-CV-3- LAC, Lacey A. Collier, J., denied the petition, and petitioner appealed. Holdings: The Court of Appeals, Carnes, Circuit Judge, held that: (1) state supreme court's finding that, at the time the prosecutor failed to inform the defense of testimony of two witnesses, the prosecutor had no intent to provoke the defense into moving for a mistrial, was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, so as to warrant federal habeas relief, and (2) state supreme court's findings that petitioner was not denied effective assistance of counsel at penalty phase did not warrant federal habeas relief. Affirmed.

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

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

Mrs. Salamon, a 63-year-old widow originally from Australia, lived alone in Santa Rosa County, Florida with her two Pekingese dogs since her husband had died unexpectedly from a heart attack two years earlier. Other than a sister-in-law in Massachusetts, she had no family in this country. Rutherford, who hired out to do odd jobs, installed sliding glass doors in the doorway leading from Mrs. Salamon's patio to her kitchen. Before long, Mrs. Salamon had those sliding glass doors replaced because they did not close and lock properly. She told her long-time friend and next-door neighbor Beverly Elkins that the unlocked doors made her nervous and that she wondered if Rutherford had intentionally made the doors so that she could not lock them. Mrs. Salamon also said that Rutherford kept coming to her house and acted as though he was “casing the joint.”

It is unclear whether Mrs. Salamon notified Rutherford about the problems with the doors, but on the morning of August 21, 1985, Rutherford asked Attaway to come along with him when he went to repair the doors he had installed for Mrs. Salamon. When they got to her house, she told them she had those doors replaced. Attaway left to get money to give Mrs. Salamon as a refund on the doors. Rutherford stayed behind at Mrs. Salamon's house. Around noon that day, Mrs. Salamon received a call from her friend Lois LaVaugh. Mrs. Salamon told Ms. LaVaugh that she was nervous because Rutherford had been at her house for “quite awhile.” Ms. LaVaugh drove over there and found Rutherford sitting shirtless on Mrs. Salamon's porch. Rutherford left after Ms. LaVaugh arrived, and Mrs. Salamon told her that Rutherford “really has made me nervous” and had been sitting around on her couch. Apparently, Mrs. Salamon never got the refund that Attaway was supposed to bring, and Rutherford left the old glass doors in her garage. At 7:00 the next morning, August 22, Rutherford and Attaway went to retrieve the old doors from Mrs. Salamon's garage. When they reached the house, Rutherford told Attaway that he had a gun in his van and said, “If I reach for that gun, you'll know I mean business.” Attaway testified that this was the first time he really believed that Rutherford might actually hurt someone, yet he still did nothing about it. While they were loading the doors, Attaway overheard Mrs. Salamon say to Rutherford, “You can just forget about the money.”

Later that morning, between 9:30 and 10:30 a.m., the manager of a local Sears store saw Mrs. Salamon when she came by to pick up a package. She also stopped at the Consolidated Package Store and made a purchase at 10:29 a.m., according to computer sales records. After that, Rutherford was the only other person known to have seen Mrs. Salamon alive, and she was not alive long, as Rutherford's actions on that day evidence. Around noon, Rutherford went to see Mary Frances Heaton, a woman who sometimes baby-sat for his children and with whom he had once lived for a few months. He showed her one of Mrs. Salamon's checks and asked her to fill it out. Heaton cannot read or write other than to sign her name, so she called for her thirteen-year-old niece, Elizabeth. Rutherford promised Elizabeth money if she would fill out the check as instructed. Elizabeth filled out the check the way Rutherford told her to, making it payable to Heaton, but she did not sign anyone's name on it.

Rutherford told Heaton that he owed her money for work she had done for him and asked her to accompany him. He took Heaton to the Santa Rosa State Bank, gave her the check, and sent her into the bank to cash it. Because of the blank signature line, the teller refused to cash the check; Heaton returned to Rutherford's van and told him. Rutherford responded by driving them to the nearby woods, where he took out a wallet, checkbook, and credit cards wrapped in a shirt, and threw the bundle into the trees. He also signed Mrs. Salamon's name onto the check, and then they went back to the bank. Outside the bank, Heaton watched as Rutherford endorsed Heaton's name on the check. In doing so Rutherford misspelled Heaton's name, scratched it out, and corrected it. Heaton re-entered the bank, and this time she successfully cashed the check and left with $2,000 in one hundred dollar bills. Rutherford gave Heaton $500 of those funds, and she in turn gave Elizabeth $5 for filling out the check.

Around 3:00 that afternoon, Rutherford visited his friend Johnny Perritt. He told Perritt that he had “bumped the old lady off” and showed him $1500 in cash. He wanted Perritt to hold $1400 of that amount for him. Rutherford said that he had hit the “old lady” in the head with a hammer, stripped her, and put her in the bathtub. Perritt refused to take the cash, and his mother later notified the police of Rutherford's claim to have committed a murder. Earlier that day Mrs. Salamon had made plans to go walking that evening with Beverly Elkins and another neighbor. At 6:30 p.m. Ms. Elkins tried to contact Mrs. Salamon by phone but got no answer. She went to Mrs. Salamon's house, saw her car outside, and realized that she must still be at home. Ms. Elkins rang the front doorbell. After receiving no answer, she went around back and through the sliding glass doors saw that the television was on and that the normally calm dogs were jumping around excitedly. Ms. Elkins retrieved a spare key to the house, met up with the other neighbor who was to have gone walking with them that night, and the two women let themselves into Mrs. Salamon's home.

When the two women entered the kitchen through the carport door, they heard water running. They followed the sound to a little-used guest bathroom. There they were horrified to find Mrs. Salamon's naked body floating in the water that filled the tub to overflowing. Realizing that their friend was dead, the stunned women went to call for help. When walking through the house, Ms. Elkins noticed that Mrs. Salamon's eyeglasses were on the kitchen floor underneath the counter. The makings of a tomato sandwich were out on the counter. Mrs. Salamon had liked to eat tomato sandwiches for lunch. When crime scene investigators arrived they found three fingerprints on the handle of the sliding door to the bathtub, one fingerprint on the tile wall of the tub, and a palm print on the window sill inside the tub with the fingers up and over the sill as though the person had grabbed it. All of those prints were later identified as Rutherford's. Blood was spattered on the bathroom walls and floor. According to an expert, the spatter pattern indicated that the blows occurred while Mrs. Salamon was sitting or kneeling on the bathroom floor.

Mrs. Salamon's naked body floated face-up in the water. She had been viciously beaten. There were bruises on her nose, chin, and mouth and a cut on the inside of her lip consistent with a hand being held forcefully over her face. Her lungs showed signs of manual asphyxiation, apparently from someone covering her nose and mouth. Her arms and knees were bruised and scraped, and her left arm was broken at the elbow. Of the three large wounds on her head, two were consistent with being struck with a blunt object or having her head slammed down. The other wound, a puncture that went all the way to the bone, appeared to be from a blow with a claw hammer or screwdriver. Her skull was fractured from one side to the other. Severe as those injuries were, none of them were the actual cause of Mrs. Salamon's death. Although Rutherford had beaten and smothered her, she had water in the lungs. That shows the 63-year-old widow was still alive when Rutherford stripped off her clothes and placed her in the bathtub to drown.

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

In the fall of 1986, after a change of venue to Walton County, Rutherford was retried. He was represented by two public defenders, William Treacy and John Gontarek. During the guilt stage of the trial, Rutherford took the stand and tried to explain his prints in the bathroom by claiming that Mrs. Salamon had asked him to realign the shower door when he was at her house on August 21 (the day before she was killed) because her nieces and nephews had knocked the door off its track. The state thereafter proved that Mrs. Salamon did not have any nieces or nephews, and according to Beverly Elkins, her close friend, no young children had visited Mrs. Salamon's house in the weeks prior to her death. Rutherford denied the testimony of the three witnesses that he had confided to them his plans to murder a woman. According to Rutherford, he never would have said such things “because I've got a good mother.” He insisted that every one of the witnesses against him was lying. On October 2, 1986, the jury found Rutherford guilty. During the penalty phase, the defense presented character evidence and testimony about Rutherford's childhood, his family, his service as a Marine during the Vietnam War, and his nervousness, nightmares, and night sweats since returning from Vietnam. The jury recommended death, this time by a seven-to-five vote. The trial court imposed a death sentence based on three aggravating circumstances: the murder was especially heinous, atrocious, and cruel; it was cold, calculated, and premeditated; and it was committed in the course of a felony (robbery) and for pecuniary gain.

The Florida Supreme Court affirmed Rutherford's conviction and death sentence, and the United States Supreme Court denied his petition for writ of certiorari. Rutherford v. State, 545 So.2d 853 (Fla.) (“ Rutherford I”), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 341 (1989). Rutherford then began the long process of collateral review by filing a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In 1996, after conducting an evidentiary hearing on Rutherford's claims of ineffective assistance of trial counsel, the trial court denied the 3.580 motion as to all of his claims. The Supreme Court of Florida affirmed the denial. Rutherford v. State, 727 So.2d 216 (Fla.1998) (“ Rutherford II”). Rutherford then petitioned the state trial court for a writ of habeas corpus, this time raising several claims of ineffective assistance of counsel by his two appellate attorneys during his direct appeal. His petition was denied, and the state supreme court affirmed the denial. Rutherford v. Moore, 774 So.2d 637 (Fla.2000) (“ Rutherford III”). On April 2, 2001, Rutherford filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. That court denied the petition and refused to grant relief. It initially granted but then vacated a certificate of appealability. We then granted Rutherford a certificate of appealability on the following three issues: (1) whether his second trial violated the Double Jeopardy Clause of the Fifth Amendment; (2) whether relief should have been granted on his penalty phase ineffective assistance of counsel claim; and (3) whether his trial counsel had a conflict of interest that rendered their representation of him ineffective.

* * *

The Double Jeopardy Clause of the Fifth Amendment provides that no person “shall ··· be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Rutherford contends that his retrial put him in jeopardy a second time in violation of that constitutional guarantee. During Rutherford's first trial, the state elicited testimony from two witnesses that Rutherford had told them he planned to kill a woman to get money.FN1 The two witnesses were listed on the state's witness list, but the prosecutor did not advise Rutherford's counsel of the nature of their testimony as required by the trial court's discovery order. Rutherford moved for a mistrial, the court reserved ruling, and the trial continued. After the jury found Rutherford guilty and recommended death, the court granted Rutherford's motion for a mistrial, finding that the “discovery violation was knowing, and therefore willful.” FN1. At Rutherford's second trial, three witnesses testified that he had made statements about his plans to kill a woman. One of those three, Attaway, did not testify about those statements at the first trial. See Rutherford I, 545 So.2d at 855.

Where, as here, a mistrial was granted upon a defense motion, a retrial does not violate the Double Jeopardy Clause, unless the state “intended to ‘goad’ the defendant into moving for a mistrial” during the first trial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). Retrial is barred only if the “conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant” into making the motion. Id. at 679, 102 S.Ct. at 2091. The prosecutor's intent is a question of fact. United States v. Vallejo, 297 F.3d 1154, 1162 (11th Cir.2002). In response to this same double jeopardy claim, the Florida Supreme Court held on direct appeal that the retrial did not violate Rutherford's double jeopardy rights. Rutherford I, 545 So.2d at 855. That holding was based upon that court's finding that at the time the prosecutor failed to inform the defense of the two witnesses' testimony, the prosecutor's goal was to use the evidence to convict Rutherford, not cause a mistrial. Id. The Florida Supreme Court reasoned that the prosecutor had willfully taken the action that violated the discovery order out of a misapprehension of the extent of his discovery obligations, not with any intent to provoke the defense into moving for a mistrial. Id.

Rutherford has not shown by clear and convincing evidence that the Florida Supreme Court's factual finding about the prosecutor's intent is unreasonable in light of the evidence in the state court record. See 28 U.S.C. § 2254(d)(2). He contends that because the first trial court, in granting the mistrial, described the discovery violation as “knowing, and therefore willful,” it must have meant that the prosecutor intended to force a mistrial. There are two problems with that argument. First, under Florida law a “willful” discovery violation is merely one that is not “inadvertent.” See Richardson v. State, 246 So.2d 771, 775 (Fla.1971). There is no indication that when the Florida trial court judge called the discovery violation “willful,” he was using that term in a way different from its meaning under Florida law. The judge did not say that the prosecutor had intended to provoke a mistrial.

Second, even if the trial judge had said that, the Florida Supreme Court could not have been clearer in finding to the contrary. To the extent of any inconsistency in fact findings or other matters, the Florida Supreme Court is supreme over that state's trial courts; to the extent of any inconsistency its findings are the ones we take to be those of the state courts. The finding that the prosecutor did not intend to goad the defense into moving for a mistrial is presumed correct, see 28 U.S.C. § 2254(e)(1), and Rutherford has not carried his burden of rebutting that presumption by clear and convincing evidence, see id. Nor has Rutherford demonstrated an unreasonable application of clearly established federal law as determined by the Supreme Court. Given the factual finding about the prosecutor's intent, the Florida Supreme Court's conclusion that there was no violation of the Double Jeopardy Clause was required by the Kennedy decision. See Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089. FN2

FN2. The state argues that because Rutherford's first trial ended in a conviction, the subsequent declaration of a mistrial does not implicate the Double Jeopardy Clause. See Hawkins v. Alabama, 318 F.3d 1302, 1309 (11th Cir.2003). Because the state courts and district court did not address this argument, and because Rutherford's second trial did not violate the Double Jeopardy Clause in view of the prosecutor's lack of goading intent, we need not reach that issue.

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

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

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

During the penalty stage of Rutherford's second trial, his trial counsel presented testimony from his father, his sister, his ex-wife (with whom he had reconciled and whom he was planning to remarry), his sister's father-in-law, and Rutherford himself. Counsel's penalty stage strategy was to paint Rutherford, who continued to insist that he was innocent, as “a good fellow, [a] good father, a good citizen, [a] loyal Marine, ··· [a] loyal church member;” in short, to emphasize his “goodness.” Rutherford, his father, and his sister all testified about Rutherford's childhood. They told the jury about Rutherford living on a farm with his parents and seven siblings, and how the children had to do chores and work around the farm. They brought out that Rutherford's father sometimes worked as a truck driver and was away from home. The jury heard that after Rutherford's father temporarily abandoned the family, Rutherford and his older brother kept the farm going while their mother took in washing and ironing to make ends meet. As Rutherford grew up, he and his father had what his sister described as “a few spats,” but overall “they got along fine.” Rutherford's sister also testified that he got along with his siblings and she characterized their parents as loving. During his own testimony Rutherford acknowledged that he did not get along with one of his brothers, but he agreed with his sister that he had good relationships with his six other siblings and with his parents. Rutherford's ex-wife told the jury about their family. During their fourteen-year marriage, they had four children. They divorced, and she left the children with him. They reconciled approximately a year before Rutherford was arrested and had planned to remarry. Their fifth child was born while Rutherford was in jail awaiting trial. His ex-wife described Rutherford as a caring and involved father, a loving, helpful, and attentive husband, and an unselfish person.

Rutherford testified about his military service. He said that at the age of nineteen he had volunteered for the Marines during the Vietnam War. He had received medals for marksmanship training. According to Rutherford, he had spent thirteen months in the demilitarized zone, during which time he slept in a foxhole nightly, heard shots and bombs daily, and saw men die regularly. FN3 He described his combat experience to the jury as “hell,” but emphasized that he stayed for his full tour of duty because “I ain't no quitter.” Rutherford remained in the reserves for four additional years and received some medals and ribbons for his service. When one of his counsel asked Rutherford to go into more detail about his military experiences for the judge and jury, Rutherford refused, responding: “That's enough of that. I don't care to talk about that.”

FN3. During his penalty phase testimony, Rutherford stated that he served in combat in the DMZ for thirteen months. However, during the 3.850 evidentiary hearing, Rutherford's expert testified that the records showed Rutherford had served five-and-a-half months in combat in the DMZ and the rest of his tour of duty elsewhere.

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

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

After the jury returned its verdict recommending a death sentence, Rutherford's attorneys presented to the judge two mental competency evaluations that had been produced before the first trial. Rutherford had insisted that his attorneys not offer any mental health evidence, but counsel presented the competency reports to the judge anyway. The jury did not see them. One competency evaluation, performed by Dr. Barbara Medzerian, reported that Rutherford said he was “living in hell” since returning from Vietnam, had nightmares and night sweats, was depressed, and was an alcoholic. That report also detailed past episodes of violence, including an episode where Rutherford struck at his father and broke his hand hitting the wall, and claimed afterward to have no memory of the incident. Another time, Rutherford beat up one of his brothers, was arrested for assault and battery, and spent five days in jail and one year on probation. The report said that Rutherford described his experience in court on that charge as “a joke.” In her report, Dr. Medzerian explained that these violent episodes were consistent with Rutherford's drinking problem. In her opinion, Rutherford suffered symptoms of an anxiety disorder related to his combat experiences, exhibited anti-social personality features, and suffered from alcoholism. Even so, he was, in her view, mentally competent to stand trial.

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

The Florida courts rejected Rutherford's contention that his trial counsel was ineffective for failing to investigate and use additional mitigating evidence about his childhood, Vietnam experience, alcoholism, and troubled marriage. The Florida Supreme Court characterized the evidence of alleged childhood abuse that Rutherford presented during the state collateral proceeding as inconclusive, Rutherford II, 727 So.2d at 225; it emphasized that Rutherford had hindered his attorneys' investigation into both his childhood and his Vietnam experiences; and it found that his attorneys had strategically decided not to present any evidence to the jury that would conflict with their penalty stage theme that Rutherford was basically a good person. Id. at 224-25. Much of the “additional” evidence introduced during the state collateral hearing, the Florida Supreme Court noted, was cumulative of that which had been put in during the penalty phase of the trial. Id. In any event, the Court concluded, even if trial counsel's performance was somehow deficient, Rutherford was not prejudiced. Id. at 225-26. We need not reach the question of whether that alternative basis for the state court decision, the lack of prejudice, passes muster under § 2254(d). It is unnecessary to do so, because we conclude the holding that counsel's performance in this regard was not constitutionally deficient is not objectively unreasonable. We will address in turn Rutherford's contentions of inadequate investigation and presentation of mitigating evidence as they relate to his problem with alcohol, his allegedly abusive childhood, his marriage, and his Vietnam experience.

About Rutherford's problem with alcohol, his trial counsel were informed. The two pre-trial competency reports, with which counsel were familiar, covered Rutherford's drinking problem. One of those reports, Dr. Medzerian's, explained that Rutherford's violent outbursts were consistent with alcoholism. Both reports indicated that Rutherford had received counseling for his alcoholism. Counsel knew about the problem but made a strategic decision not to present any evidence of it to the jury or to investigate it any further. As the Florida Supreme Court explained, Rutherford's trial counsel did not need to investigate his alcoholism any further to understand its implications and make a reasonable decision about it. Any evidence of alcoholism would have opened the door to the jury hearing evidence about Rutherford's past violence, thereby undermining the plan to present Rutherford as a good, hard-working family man. There is nothing unreasonable about the Florida Supreme Court's findings or legal conclusions in regard to this subpart of the ineffective assistance of counsel issue. About evidence of Rutherford's childhood, one of Rutherford's brothers, William, testified at the 3.850 hearing that their father beat their mother and got “pretty rough” on the children. Rutherford contends that his attorneys were ineffective for failing to interview this brother and present his testimony at the penalty phase.

The Florida Supreme Court found that William's testimony was “not conclusive of an abusive situation,” Rutherford II, 727 So.2d at 225, which is to say that testimony did not prove Rutherford had been abused as a child. Although Rutherford now tries to characterize his childhood as cruel and terrible, the state court finding to the contrary is presumed to be correct, see § 2254(e)(1), and he has not carried his burden of rebutting that presumption by clear and convincing evidence. At trial, Rutherford's sister testified that Rutherford had “a few spats” with his father but otherwise got along with his parents. She characterized their parents as loving. At the 3.850 hearing, Rutherford's brother Earl testified that he never knew of his parents fighting when the siblings were young, and that all the children had grown up with good relationships with their parents. He summarized things by saying: “we had some good bringing up.” Rutherford's mother also testified at the 3.850 hearing. Although she talked about the family's financial struggles and Rutherford's father's drinking, she never indicated that he was abusive. Moreover, Rutherford's own penalty phase testimony described the generally good relationships that had existed within his family, and he never mentioned abuse.

To the extent there were any shortcomings in the investigation of Rutherford's family life, he is responsible for them. He did his best to hinder his attorneys' efforts. Counsel and their investigators asked Rutherford for the names of anyone they could interview and then talked with the people he named, even if Rutherford insisted that the person was not worth contacting. Also, in accordance with standard practice, when Rutherford's case was assigned to the public defender's office an assistant interviewed him to get the names of his family members. Rutherford failed to disclose all of them. When one of the attorneys and an investigator tried to visit his parents' home to interview them, they could not locate the address Rutherford had given them. When the attorneys asked him about it, he replied: “I told my mom and dad and wife not to come and talk to you folks.” That was confirmed when counsel and their investigators finally located Rutherford's parents. They spent over two hours trying to interview the parents, but had difficulty getting them to cooperate. Exasperated, the lead investigator on the case finally told Rutherford's father: “We are trying to save your son's life.” The elder Rutherford became angry and snapped at the investigator. That effectively ended the interview. Rutherford had also instructed his family members not to go to his attorneys' offices to talk to them.

About his marital difficulties, Rutherford's ex-wife testified at the penalty stage concerning their divorce, their reconciliation, and Rutherford's good parenting of the children. Rutherford himself testified about his marriage and family life and that he cared for the children when his wife left. Witnesses at the 3.850 hearing did offer greater detail about the couple's divorce; for example, they told about Rutherford's having traveled to California to see his ex-wife. There is no indication that Rutherford's trial counsel unreasonably failed to investigate his marital history and difficulties. On the contrary, counsel interviewed the two people most knowledgeable about the marriage, Rutherford and his ex-wife, and called each of them as penalty phase witnesses. The Florida Supreme Court held that counsel knew about Rutherford's marital history, and that the evidence on the subject presented at the 3.850 hearing was essentially cumulative. Rutherford II, 727 So.2d at 224-25. That decision easily passes review under § 2254(d).

About the investigation into his military experience, again Rutherford did what he could to impede his counsels' best efforts and brought about any shortcomings in that part of the investigation. When his attorneys repeatedly tried to interview him about Vietnam, Rutherford refused to answer their questions. Counsel prepared the necessary paperwork to obtain copies of his military records, but Rutherford adamantly refused to sign the release. They asked his family to provide any information or records they had about Rutherford's time in the military, but the family continued their pattern of non-cooperation, a pattern that Rutherford had set into motion. One of the two counsel testified that he remembers “chewing [Rutherford] out unmercifully ··· telling him things like ··· ‘This is your life at stake and we are the people that are going to do something or not be able to do something.’ ” It did no good. Counsel's pleas went unheeded. Nonetheless, while Rutherford was on the stand testifying during the penalty phase, counsel did ask him about his Vietnam experiences, and for the first time Rutherford answered the questions. As counsel recounted it: “I about fell off my chair because these were the very questions that he refused to answer to me in the months of preparation···· And, of course, the old rule of [d]o not ask the question unless you know the answer, I threw it out and went with it full bore best I could.” Counsel's full-bore efforts were successful to some extent. Under his questioning, Rutherford described to the jury how he had slept in a foxhole, heard shots and bombs every day, been shot at, and seen a lot of men die. He said he had spent thirteen months in combat. He described it as “hell.”

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

At the 3.850 hearing, Rutherford's current counsel presented an expert to analyze the history of Rutherford's unit during the dates he was in Vietnam and thereby fill in the details of what Rutherford had testified to during his penalty stage. The expert gave his opinion about the conditions in which Rutherford must have lived and fought. Rutherford contends that his trial counsel should have discovered and presented similar expert opinion information at the penalty stage and even should have gone so far as to obtain a court order to force the military to turn over Rutherford's records without his permission. However, under Strickland the duty is to investigate to a reasonable extent, 466 U.S. at 691, 104 S.Ct. at 2066, and that duty does not include a requirement to disregard a mentally competent client's sincere and specific instructions about an area of defense and to obtain a court order in defiance of his wishes. See Gilreath v. Head, 234 F.3d 547, 550 n. 10 (11th Cir.2000) (“We readily conclude that trial counsel-by relying on Petitioner's instruction not to present mitigating mental health and alcohol abuse evidence-did not perform in an unreasonable manner.”); Johnston v. Singletary, 162 F.3d 630, 642 (11th Cir.1998) (“the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions”) (internal marks and citation omitted); Hance v. Zant, 981 F.2d 1180, 1183-84 (11th Cir.1993) (counsel's agreeing to capital defendant's wishes not to contact his family did not amount to ineffective assistance under the circumstances); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986) (“a defendant's decision communicated to his counsel as to who he wants to leave out of the investigation, while not negating the duty to investigate, does limit the scope of the investigation”); see also Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983) (“In light of Foster's adamance, Mayo had an ethical obligation to comply with his client's wishes and was thus unable to present an insanity defense.”). We agree with the Florida Supreme Court's decision about this part of Rutherford's ineffective assistance claim, including its observation that “Rutherford's uncooperativeness at trial belies his present claim that his trial counsel was deficient for not investigating and presenting mitigation regarding his harsh childhood and military history,” Rutherford II, 727 So.2d at 225.

For all of these reasons, the Florida Supreme Court's decision rejecting Rutherford's claim that his trial counsel rendered ineffective assistance by not investigating more thoroughly his alcoholism, childhood, marriage, and military experience is not objectively unreasonable. 3.

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

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