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SMITH v. SINGLETARY

No. 90-3831.

970 F.2d 766 (1992)

Frank Elijah SMITH, Petitioner-Appellee, Cross-Appellant, v. Harry K. SINGLETARY, Respondent-Appellant, Cross-Appellee.

United States Court of Appeals, Eleventh Circuit.

August 18, 1992.

Attorney(s) appearing for the Case

Carolyn Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for appellant.

Billy H. Nolas, Ocala, Florida, Julie D. Naylor, Ocala, Fla., for appellee.

Before TJOFLAT, Chief Judge, HATCHETT and EDMONDSON, Circuit Judges.

PER CURIAM:

In this capital case, the state trial judge prevented defense counsel from presenting and the jury from considering mitigating circumstances not listed in the Florida death penalty statute. Fla.Stat. § 921.141. The district court ruled that this Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), error was not harmless beyond a reasonable doubt. Smith v. Dugger,

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