RONEY, Circuit Judge:
James Ernest Hitchcock was convicted and sentenced to death for the strangulation of his brother’s thirteen-year-old stepdaughter. After a direct appeal and post-conviction proceedings in the Florida state courts,1 Hitchcock petitioned in federal district court for a writ of habeas corpus. The district court denied the writ without an evidentiary hearing. We affirm.
Petitioner Hitchcock raises numerous issues on this appeal: (1) whether Florida law discouraged his attorney from investigating and presenting nonstatutory mitigating factors; (2) whether the trial court considered petitioner’s refusal to plead guilty in imposing the death sentence; (3) whether the evidence was sufficient to support his conviction; (4) whether the death penalty in Florida has been imposed in arbitrary and capricious manner either because of: (a) a defect in Florida’s death penalty statute, Fla.Stat.Ann. § 921.141, (b) Florida law which required the jury be instructed on all lesser degrees of the charged offense whether or not there was evidence to support a conviction on the lesser degrees, or (c) racial discrimination; and (5) whether the Brown issue as decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert. denied, — U.S.—, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), should be reconsidered. We will address each issue in that order.
The facts of the case can be briefly summarized. Thirteen-year-old Cynthia Drig-gers was murdered by strangulation on July 31, 1976. Her body was recovered later that same day. An autopsy revealed that Driggers’ hymen had been recently lacerated and that sperm was present in her vagina. Her face had cuts and bruises in the vicinity of the eyes. On August 4, 1976, petitioner confessed to the murder. He claimed that he and the victim had consensual sexual relations and he killed her when she became upset afterward and threatened to tell her parents. At trial, petitioner changed his story. He testified his brother Richard, the girl’s stepfather, discovered Cynthia and him having intercourse and reacted by strangling the girl.
Restriction of Mitigating Evidence
Petitioner argues the district court should have held an evidentiary hearing on the question of whether he was denied a fair and individualized capital sentencing determination by the preclusion of nonstat-utory mitigating factors as a result of either the operation of state law or the denial of effective assistance of counsel because [1335]*1335of his counsel’s belief that Florida law barred such evidence. After examining the law regarding admission of mitigating evidence as developed in both Florida and federal courts and reviewing the facts of this ease, we conclude no constitutional infirmity exists in regard to petitioner’s sentencing hearing.
Florida re-enacted its death penalty statute following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which in effect held all extant capital penalty statutes to be unconstitutional. The new statute contained a list of factors designed to guide discretion in the imposition of the death sentence. Both aggravating and mitigating factors were listed. The statute explicitly limited those circumstances that could be considered as aggravating. No such restrictive language, however, was used in conjunction with the mitigating circumstances. See Fla.Stat. § 921.141 (1972). This feature was noted by the Supreme Court in its opinion holding the statute to be constitutional. Proffitt v. Florida, 428 U.S. 242, 250 n. 8, 96 S.Ct. 2960, 2965 n. 8, 49 L.Ed.2d 913 (1976) (“There is no such limiting language introducing the list of statutory mitigating factors.”).
The importance of a lack of restriction on the sentencer’s consideration of mitigating circumstances in fixing the penalty for a capital crime was confirmed by the Supreme Court in Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). The Court held unconstitutional an Ohio statute which limited mitigating evidence to a narrow set of factors. As to the distinction between the Ohio and the Florida statute, the Court made the following observation:
Although the Florida statute approved in Proffitt contained a list of mitigating factors, six members of the Court assumed, in approving the statute, that the range of mitigating factors listed in the statute was not exclusive____ None of the statutes we sustained in Gregg [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859] and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.
438 U.S. at 606-07, 98 S.Ct. at 2965-66.
Two years prior to Lockett and six days after the decision in Proffitt, the Florida Supreme Court in Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977), used language which some contend should be interpreted as limiting the introduction of mitigating circumstances to those enumerated in the statute. The court upheld a trial court’s refusal to admit testimony regarding a capital defendant’s employment history as a mitigating circumstance. The defendant argued that his employment history demonstrated he was not beyond rehabilitation. Neither employment history nor potential for rehabilitation are statutory mitigating factors. See Fla. Stat.Ann. § 921.141(3). The court rejected the defendant’s argument, reasoning that employment history was not particularly probative of a person’s ability to conform to the law and that
[i]n any event, the Legislature chose to list the mitigating circumstance, which it judged to be reliable for determining the appropriateness of a death penalty ... and we are not free to expand that list.
336 So.2d at 1139. In a footnote, the court emphasized the restrictive design of the Florida statute as regards to both aggravating and mitigating factors, stressing that the statute only would limit the arbitrariness condemned in Furman if discretion was limited “whether operating for or against the death penalty.” 336 So.2d at 1139 n. 7. See Perry v. State, 395 So.2d 170, 174 (Fla.1980) (trial judge interpreted Cooper as barring non-statutory mitigating evidence).
Two years later and shortly after the decision in Lockett, the Florida Supreme Court in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), clearly held the Florida death penalty statute does not restrict the mitigating evidence to the [1336]*1336factors enumerated in the statute. In denying a motion for rehearing which argued that the Florida statute as interpreted by Cooper violated Lockett, the Florida court said:
In Cooper, this Court was concerned not with whether enumerated factors were being raised as mitigation, but with whether the evidence offered was probative. Chief Justice Burger, writing for the majority in Lockett, expressly stated that irrelevant evidence may be excluded from the sentencing process. 98 S.Ct. at 2965 n. 12. Cooper is not apropos to the problems addressed in Lockett.
As concerns the exclusivity of the list of mitigating factors in Section 921.141, the wording itself, and the construction we have placed on that wording in a number of our decisions, indicate unequivocally that the list of mitigating factors is not exhaustive. This was noted, in fact, in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
We have approved a trial court’s consideration of circumstances in mitigation which are not included on the statutory list in Washington v. State, 362 So.2d 658 (Fla.1978); Buckrem v. State, 355 So.2d 111 (Fla.1978); McCaskill v. State, 344 So.2d 1276 (Fla. 1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976); and Halliwell v. State, 323 So.2d 557 (Fla. 1975), among others. Obviously, our construction of Section 921.141(6) has been that all relevant circumstances may be considered in mitigation, and that the factors listed in the statute merely indicate the principal factors to be considered.
365 So.2d at 700 (footnote omitted).
Prior to that decision, this Court had addressed the issue of whether Florida’s death penalty statute as interpreted in Cooper violated Lockett. In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert, denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), we reviewed Proffitt and Lockett and stated “[t]he conclusion is inevitable that the [Supreme] Court continues to view Section 921.141 as constitutional ____ Obviously, we are without power or authority to overrule the express finding of the Supreme Court.” 578 F.2d at 621. Spinkellink was tried in 1973, prior to Cooper. Spinkellink presented and argued to the jury circumstances not fitting within the statutory mitigating categories.
Petitioner here was tried in January, 1977, which was after the Florida court’s decision in Cooper but before the United States Supreme Court’s decision in Lockett. Thus, petitioner argues that his counsel, misled by Cooper and without the clarification of Lockett and Songer, believed that he was limited to presenting evidence in mitigation that fit within one of the statutorily enumerated listings. In one context or another, this basic legal problem has been argued to this Court several times since Spinkellink but in no case has relief been granted because of Cooper.
In Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), cert, denied, — U.S.—, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983), it was argued that Proffitt’s trial attorney was ineffective because he failed to present evidence of nonstatutory mitigating circumstances during the penalty phase of his trial in March, 1974. The Court indicated that at the time of Proffitt’s trial which was prior to Cooper, it was reasonable to assume that evidence of nonstatutory mitigating circumstances was not admissible. 685 F.2d at 1248. In that case, however, the attorney testified that he believed that he could fit any mitigating evidence within the statutory mitigating factors and that, in any event, the defendant had instructed him not to introduce mitigating evidence. 685 F.2d at 1238-39.
In Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert, denied, — U.S. —, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), it was argued that the jury instructions at the penalty phase of his trial restricted the jury from considering nonstatutory. mitigating circumstances. Ford did not object to the instructions at trial or on direct [1337]*1337appeal. The Court denied relief because Ford had not been limited in the admission of mitigating evidence and thus could show no prejudice. 696 F.2d at 813.
A similar issue was involved in Foster v. Strickland, 707 F.2d 1339, 1346-47 (11th Cir.1983), and the Court again held that no prejudice was shown because the petitioner did not suggest any supported nonstatuto-ry mitigating evidence in the habeas corpus proceeding.
In the instant case, the district court dismissed this claim on the grounds that Florida law did not limit what evidence could be produced in mitigation at the penalty stage and that the record indicated petitioner’s attorney did not think he was constrained by the statute. Based on our prior precedents, the district court properly denied relief and an evidentiary hearing. The evidence proffered to the district court does not establish the right to constitutional relief. The record belies the argument that at the time of the case, the presentation to the jury would have been appreciably different had it not been for the possible confusion of petitioner’s attorney as to the law on mitigating circumstances.
Petitioner submitted an affidavit of the attorney, a public defender, who represented him at trial and sentencing. The affidavit of the attorney is carefully written. It states that although the attorney does not have an independent recollection, he is of the opinion, upon reviewing the transcript, that during his representation of petitioner his perception was that consideration of mitigating circumstances was limited to the factors enumerated by the statute. It says he is aware of the current status of the ease and that evidence of relevant mitigating circumstances was not investigated or presented in petitioner’s sentencing trial. The affidavit does not indicate, however, that he would have done anything differently at that time. In Proffitt, this Court denied relief on a record where the defendant’s attorney testified unequivocally that at the time of trial, he understood the Florida statute as limiting the mitigating evidence that could be introduced to that falling within the statutory mitigating circumstances. Although the attorney testified he believed he could fit any mitigating evidence within that scope, this Court stated that
the defense attorney’s belief that he could not, under the Florida statute, introduce evidence of mitigating factors not listed in Fla.Stat. § 921.141(6) was entirely reasonable. His decision not to call witnesses at the penalty stage to testify about appellant’s general character and background was therefore justifiable and fully within the sixth amendment standard of reasonably effective assistance.
Proffitt, 685 F.2d at 1248.
At the sentencing hearing, petitioner’s attorney called petitioner’s brother, James, who testified about petitioner at the age of five or six, about his father’s death, about the farm work of both the mother and the father hoeing and picking cotton in Arkansas, that there were seven children in the family, and that he left “Ernie” to babysit with the brother’s small children. Other testimony relating to petitioner’s character had come out at trial. Petitioner testified he left home when he was thirteen because he could not tolerate seeing his stepfather abuse his mother. His mother testified that he was a good child and he minded her. Three of his siblings told the jury he was not a violent person. During closing argument the attorney referred to much of the evidence not fitting squarely within the confines of the statutory mitigating circumstances including the difficult circumstances of petitioner’s upbringing, the possibility of rehabilitation, and that petitioner voluntarily turned himself in. Finally, he admonished the jury to “look at the overall picture. You are to consider everything together ... consider the whole picture, the whole ball of wax.”
Petitioner has suggested several different pieces of evidence of nonstatutory mitigating circumstances which might have been presented. First, he argues that testimony by psychologists could have been introduced which would have corroborated [1338]*1338lingering doubts about guilt and shown petitioner was an excellent candidate for rehabilitation. Such testimony would tend to establish his innocence, he says, by bringing out that he had coped with stressful situations throughout his life by retreating or escaping. There is no indication in this record, however, that the attorney at the time of sentencing would have followed this course even if he had known he could. Such matters are not judged from hindsight. Strickland v. Washington, — U.S. —,—, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984). It should be noted that mental and emotional conditions are statutorily permitted mitigating considerations. Fla.Stat.Ann. § 921.141(4)(b). Petitioner has cited us no cases holding that the mere failure to investigate or produce psychological or psychiatric evidence renders a sentencing proceeding unconstitutional.
Petitioner argues that greater details as to his upbringing in an environment of extreme poverty, his solid character traits, devotion to hard work, willingness to contribute to the family’s support, and respect for adults should have been presented as evidence of nonstatutory mitigating factors. All of this was developed, however, to some extent for the jury. As described above, elements of petitioner’s character and other background information were testified to by petitioner’s brother, sisters, and mother as well as by petitioner himself. Petitioner’s trial counsel reminded the jury of these facts during closing argument in the penalty phase.
It thus appears that petitioner was not denied an individualized sentencing hearing.
Life Sentence Offered for Guilty Plea — Death Sentence Imposed After Conviction
Petitioner asserts that the state trial judge imposed the death sentence as punishment for petitioner’s decision to go to trial rather than plead guilty. Petitioner alleged that the prosecutor and the judge together offered him a plea bargain which would exchange his plea of guilty for a life sentence. Petitioner declined the offer. After trial, the judge on the jury’s recommendation sentenced petitioner to death. Petitioner argues his death sentence must be overturned because the trial judge’s sentencing order did not explain why death became an appropriate penalty after trial.
The record is unclear as to whether the trial judge indicated he would approve a life sentence on guilty plea, or merely would consider it.2 We treat the case as if the defendant would have received a life sentence on a guilty plea.
Although the principle petitioner argues would apply on a retrial and a re-sentencing after a successful appeal, North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 28-29, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628 (1974), it does not apply to the failure of a plea bargain. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). In the “give-and-take” of plea bargaining, the state may extend leniency to a defendant who pleads guilty foregoing his right to jury trial. Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970). Legislative schemes which extend the possibility of leniency to defendants who plead guilty are permissible so long as the statute does not unnecessarily burden the assertion of constitutional rights or act to coerce inaccurate guilty pleas. Compare United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (statute invalid when defendant could only receive death sentence if he went to trial) with Corbitt v. [1339]*1339New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (statute valid when plea of non vult gave possibility of sentence of not more than 30 years but conviction at trial carried mandatory life sentence). A judge, as with the prosecutor and the legislature, should not be precluded from approving leniency in sentencing upon an admission of guilt. Cf. Corbitt, 439 U.S. at 224 n. 14, 99 S.Ct. at 500 n. 14 (cannot permit prosecutor to offer leniency but not legislature).
Sentencing after conviction following a failed plea bargain presents a different situation from sentencing after a prior sentence and retrial. Upon a second conviction, a defendant stands in the same posture for sentencing that he did after his first conviction. Presumably all facts have been before the court for determination of the correct sentence. Unless the court cites circumstances which occurred after his original sentence, a greater sentence would appear to be for no reason other than a penalty for the defendant’s challenging of his conviction. See Wasman v. United States, — U.S. —, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). A defendant who pleads guilty, however, is in a markedly different posture than a defendant who is convicted at trial. Only after trial and a sentencing hearing has the trial court learned all of the facts which might be considered for sentencing. On a plea bargain, the defendant’s and prosecutor’s agreement forecloses the necessity for such a detailed explanation. Moreover, by pleading guilty a defendant confers a “substantial benefit to the state:”
the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof.
Brady v. United States, 397 U.S. at 752, 90 S.Ct. at 1471. The state is entitled to extend a sentence of less than that which might otherwise be appropriate to a defendant that confers such a benefit on it. 397 U.S. at 753, 90 S.Ct. at 1471. The heart of a plea bargain from a defendant’s point of view is the option of avoiding a possibly harsher sentence upon conviction at trial.
There is no merit to the argument that the sentencing judge should have set forth the reasons why the sentence after trial was greater than what would have been approved on a guilty plea. Absent a demonstration by the defendant of judicial vindictiveness or punitive action, a defendant may not complain simply because he received a heavier sentence after trial. Blackmon v. Wainwright, 608 F.2d 183 (5th Cir.1979), cert. denied, 449 U.S. 852, 101 S.Ct. 143, 66 L.Ed.2d 64 (1980). We have held that a mere allegation of discrepancy between a defendant’s actual sentence and that which he would have received had he foregone trial to plead guilty does not invalidate the sentence. Smith v. Wainwright, 664 F.2d 1194, 1197 (11th Cir.1981).
That the death penalty is involved in this ease does not alter the principle of law. Given the different situations presented by a defendant who pleads guilty and a defendant convicted after trial, the possibility of different sentences depending on whether or not the defendant pleads guilty does not run afoul of the requirement that the “decision to impose the death sentence be, and appear to be, based on reason____” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). In this case, the court imposed the death penalty only after fully considering the aggravating and mitigating circumstances and receiving the jury’s recommendation of death. The procedure in Florida fully meets the Ninth Circuit’s requirements that if a court participates in plea bargaining “the record must show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.” United States v. Stockwell, 472 F.2d 1186, 1187-88 (9th Cir.) cert, de[1340]*1340nied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).
A trial court which approved a sentence based on a plea bargain prior to trial need not, upon rejection of that offer and conviction at trial, restrict its sentence to that offered for the plea bargain, set forth reasons for harsher sentence, nor impose such sentence only for conduct occurring after the aborted plea bargaining.
Sufficiency of the Evidence
In petitioner’s guilt-innocence trial, the jury was instructed that it could find petitioner guilty of first degree murder upon alternative theories: premeditated murder or felony murder. The jury returned a general verdict of guilty of first degree murder.
Petitioner argues that the prosecution failed to prove felony-murder because the facts did not show that the felony of sexual battery had occurred but that the evidence supported his claim that the victim consented to sexual relations. He contends that since it cannot be determined on which theory the jury based its verdict, the conviction must be reversed. The issue turns on whether there was sufficient evidence to support the felony murder theory without running afoul of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
“[A] general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient____” Zant v. Stephens, 462 U.S. 862, —, 103 S.Ct. 2733, 2745, 77 L.Ed.2d 235, 252 (1983); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). The test for sufficiency of the evidence on habeas corpus is whether viewing the evidence in the.light most favorable to the Government “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979); Cosby v. Jones, 682 F.2d 1373, 1379 (11th Cir.1982). A defendant cannot be sentenced to death for participating in a felony with no intent to participate in a murder. Enmund, 458 U.S. at 801, 102 S.Ct. at 3378. Where the defendant himself participates in both the felony and the intentional killing, that principle does not apply. Adams v. Wainwright, 709 F.2d 1443, 1447 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984).
The evidence at trial showed that petitioner was temporarily staying at his brother’s house. On the night in question, he returned to the house at a late hour and entered through a window. Petitioner admitted having sexual relations with his brother’s thirteen-year-old stepdaughter. The young girl complained he had hurt her and that she was going to tell her parents. A medical examination revealed the girl was previously of chaste character. This evidence was sufficient to prove that petitioner committed sexual battery by force. The evidence was sufficient to show that the homicide occurred intentionally, not accidentally in the course of an unrelated felony.
Arbitrariness of Death Penalty in Florida
Petitioner raises three different arguments in support of the contention that the imposition of the death penalty in Florida violates the Eighth and Fourteenth Amendments. First, petitioner asserts that at the time of his trial the commission of rape in conjunction with the capital felony was listed as a statutory aggravating factor although the Florida legislature had replaced the crime of rape with the crime of sexual battery.
One of the aggravating, factors in Florida’s post-Furman death penalty statute was: “[t]he capital felony was committed while defendant was engaged ... in the commission of ... rape ____” Fla.Stat. § 921.141 (1972). In 1974, the Florida legislature rewrote the rape statute. 1974 Fla.Laws ch. 74-121 § 1. The legislature created the new crime of sexual battery which was broader than the repealed statutory crime of rape. See Fla.Stat.Ann. [1341]*1341§ 794.011. In 1976, the Florida Supreme Court dropped all reference to rape as an aggravating factor when it repromulgated its standard jury instructions. Florida Standard Jury Instructions in Criminal Cases at 77-82 (1976). The death penalty statute has now been amended to include the term sexual battery. 1983 Fla.Laws ch. 83-216 § 177.
There is no merit to petitioner’s contention that at the time of petitioner’s trial the law had become so unclear that it was likely to be applied in an arbitrary and capricious manner. The jury instructions at petitioner’s guilt-innocence trial described the felony of sexual battery which is equivalent to the traditional crime of rape.3 In charging the jury during the penalty phase, the court again used the term sexual battery instead of rape. The statutory aggravating factor mentioning rape thus was not applied in an arbitrary manner in petitioner’s case. Contrary to petitioner’s assertion, the legislature’s recataloguing of rape as sexual battery in the statute books did not make the statutory aggravating factor referred to as rape so vague as to be susceptible of arbitrary or capricious application. See Hitchcock v. State, 413 So.2d 741, 747-48 (Fla.), cert, denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982).
Second, petitioner argues that at the time of this trial Florida required instructions on all lesser degrees of the charged offense even when there was no evidence to support these lesser offenses, thus rendering the system arbitrary and capricious. Petitioner waived any right to complain about the instructions as to lesser degree offenses in this case because the instructions given are the ones he requested. He waived any right to object to Florida’s law on instructing on lesser degrees in other cases by his failure to object at trial or on direct appeal. Ford v. Strickland, 696 F.2d at 816-17. No “cause” for this failure to object can be shown because one of the major cases which forms the basis of petitioner’s argument, Roberts v. Louisiana, 428 U.S. 325, 334-35, 96 S.Ct. 3001, 3006-07, 49 L.Ed.2d 974 (1976), was decided the year before his trial. See Reed v. Ross, — U.S. —, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
In any event, the argument that Florida’s system is unconstitutional because in some cases lesser degrees of the charged crime are instructed without factual support is without merit. At the time this case was tried, there was a difference in the treatment of lesser degrees of a charged crime and lesser included offense. Florida law has always prohibited instructions on lesser-included offenses unless the lesser-included offense is necessarily included in the charged offense or there is evidence to support a conviction on the lesser-included offense. Gilford v. State, 313 So.2d 729, 732-33 (Fla.1975); Brown v. State, 206 So.2d 377, 384 (Fla.1968); see Fla.Stat. § 919.14 (1969) (replaced by Fla.R. Crim.P. 3.490, Fla.Rules of Court). If the defense requested, however, the court at that time had to instruct on all lesser degrees of a charged offense whether or not the evidence supported those lesser degrees. Gilford, 313 So.2d at 733. This was true even though “[i]n many cases the elements of the lesser degrees are totally distinct from the offense charged.” Brown, 206 So.2d at 381. In 1981, the Florida Supreme Court amended the procedural rule which mandated this result. In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981). The rule now [1342]*1342requires that the trial court charge only on those lesser degrees supported by the evidence. Fla.R.Crim.P. 3.490.
Although Florida’s former practice of charging on all lesser degrees may have introduced some “distortion into the fact-finding process” by allowing for jury pardon, see Spaziano v. Florida, — U.S. —,—, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340 (1984); Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982) , no Eighth Amendment problem was created. Florida juries were not faced with a choice of convicting on a lesser offense not supported by the evidence in order to avoid imposing the death penalty. It was this combination of a mandatory death sentence for murder and the required charging on lesser offenses that the Supreme Court condemned in Roberts v. Louisiana, 428 U.S. at 334-35, 96 S.Ct. at 3006-07, as leading to arbitrary results violative of the Eighth Amendment.
Third, petitioner’s claim that the death penalty is applied in a racially discriminatory manner in Florida depends on the same statistical study rejected by this Court in Sullivan v. Wainwright, 721 F.2d 316, 317 (11th Cir.), affd, — U.S.—, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983); see Spinkellink v. Wainwright, 578 F.2d 582, 612-616 (5th Cir.1978), cert, denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). The Supreme Court has held this argument to be without merit. Wainwright v. Ford, — U.S.—, 104 S.Ct. 3498, — L.Ed.2d —(1984); see Sullivan v. Wainwright, — U.S.—,— - — & n. 3, 104 S.Ct. 450, 451-52 & n. 3, 78 L.Ed.2d 210, 212-13 & n. 3.
Brown Issue
Petitioner raises the so-called Brown issue decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert, denied, — U.S. —, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) , and suggests we reconsider our decision based on an argument mentioned in a concurring opinion in Ford. The Brown issue involved a claim by 123 death row inmates, including petitioner, that the Florida Supreme Court had examined nonrecord information during its appellate review of their sentences. This Court, sitting en banc, held that no constitutional violation had occurred. Ford v. Strickland, 696 F.2d at 811. This panel is bound by that decision.
AFFIRMED.