Marvin Edwin Johnson v. Harry K. Singletary, Jr., Secretary, Florida Department of Corrections

*1196ANDERSON, Circuit Judge,

concurring in part, dissenting in part, in which KRAVITCH, JOHNSON and CLARK, Circuit Judges, join:

I concur in the court’s resolution of all of the claims presented by Johnson, with one exception. With respect to Johnson’s claim of ineffective assistance of counsel at sentencing, I dissent. Respectfully, I submit that the eligibility theory adopted today by the court is inconsistent with the guidance which the Supreme Court has given us on the meaning of the concept “actually innocent of the death penalty.”

A. Supreme Court Precedent

In Smith v. Murray, 477 U.S. 527, 106…