[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 28, 2010
JOHN LEY
No. 07-15681 CLERK
________________________
D. C. Docket No. 04-01092-CV-GAP-DAB
JOHN B. VINING,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 28, 2010)
Before DUBINA, Chief Judge, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
John Vining (“Petitioner”) appeals the district court’s denial of his petition
for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner, in state court, was
convicted of first-degree murder and sentenced to death. The details of Petitioner’s
case are set out in the Florida Supreme Court’s opinion on his direct appeal. See
Vining v. State (“Vining I”), 637 So. 2d 921 (Fla. 1994). The Florida Supreme
Court affirmed his conviction and later denied his application for post-conviction
relief.
After exhausting remedies in state court, Petitioner sought a writ of habeas
corpus in the district court. He raised more than two dozen claims and subclaims,
and the district court denied his request for relief on each of them. After the
district court rejected his petition, we granted a Certificate of Appealability on two
issues:
(1) Whether Petitioner was denied a fair and impartial tribunal in violation
of Gardner v. Florida, 430 U.S. 349 (1977), because the state trial court
considered extra-record information
(2) Whether Petitioner’s right to assistance of counsel during the guilt phase
and the penalty phase has been violated.
Collateral review of convictions in a state court are subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28
U.S.C. § 2254. AEDPA provides that no federal court may grant a writ to a person
2
in custody pursuant to the judgment of a state court unless the state court
adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
Green v. Nelson, 595 F.3d 1245, 1248 (11th Cir. 2010) (quoting 28 U.S.C. §
2254(d)). Because we see no reversible error in the decision of the district court,
we affirm.
I. Impartial Tribunal
Petitioner argues that he was denied a fair trial because the state trial judge
improperly considered extra-record information. See Gardner v. Florida, 97 S. Ct.
1197, 1207–08 (1977) (White, J., concurring) (declaring invalid a death sentence
where the trial judge considered “secret information relevant to the ‘character and
record of the individual offender’” and did not reveal this information to the jury)1;
for background on Petitioner’s claim, see Vining v. State (“Vining II”), 827 So. 2d
1
No opinion commanded a majority in Gardner, but Justice White’s concurrence
represents the holding in that case. See O’Dell v. Netherland, 117 S. Ct. 1969, 1976 (1997)
(recognizing Justice White’s view as the rule of Gardner).
3
201, 209-10 (Fla. 2002). The state trial court judge viewed extra-record records
and source materials, read depositions not admitted into evidence, spoke to outside
experts on trial matters, and conducted a personal “view” of locations pertinent to
the case. Id. at 209.
On direct appeal, the Florida Supreme Court concluded that Petitioner had
waived his Gardner claims, because his trial counsel failed to object after the trial
judge disclosed in two letters that the judge had examined extra-record
information. Vining I, 637 So. 2d at 927. On collateral review, the Florida
Supreme Court expressed doubt “whether a Gardner violation occurred in this case,
but even if it did, any error was harmless.” Vining II, 827 So. 2d at 210.2 The
district court, applying Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989), agreed that
any Gardner error was harmless and concluded that the Florida Supreme Court’s
conclusions were not contrary to, or an unreasonable application of, United States
Supreme Court precedent.
Although the district court seemed to apply Delap’s “harmless beyond a
reasonable doubt” standard, federal courts -- on collateral review -- should apply
2
What harmless error standard the Florida Supreme Court applied is not entirely clear,
but both precedents it cited for harmlessness were decided under, or depended on, the “harmless
beyond a reasonable doubt” standard. See Vining II, 827 So. 2d at 209–10 (citing Consalvo v.
State, 697 So. 2d 805, 818 (Fla. 1996) (adjudicating harmless errors under the “harmless beyond
a reasonable doubt” standard) and Lockhart v. State, 655 So. 2d 69, 73-74 (Fla. 1995)
(adjudicating harmless error under an injury to substantial rights test)).
4
the “actual prejudice” standard of Brecht v. Abrahamson, 113 S. Ct. 1710 (1993).
We do so even if the state courts -- as well as, in this case, the district court --
applied a different harmless error standard. Fry v. Pliler, 127 S. Ct. 2321, 2325–27
(2007); Jennings v. McDonough, 490 F.3d 1230, 1253 n. 20 (11th Cir. 2007)
(“[W]e employ the more deferential Brecht standard even where the state court did
not apply the Chapman standard of proof ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict.’”).
Brecht requires that we determine “whether [an] error ‘had substantial and
injurious effect or influence in determining the jury’s verdict.’” Brecht, 113 S. Ct.
at 1722. In other words, “habeas petitioners may obtain plenary review of their
constitutional claims, but they are not entitled to habeas relief based on trial error
unless they can establish that it resulted in ‘actual prejudice.’” Id. Harmlessness is
a question of law that we review de novo. Prevatte v. French, 547 F.3d 1300, 1305
(11th Cir. 2008).
Although we apply Brecht, we agree with the district court and the Florida
Supreme Court’s conclusion that any Gardner error was harmless.3
3
While Brecht and Fry describe a prejudicial impact on the jury, we have applied the
harmless error rule in cases where the judge may accept or reject a jury recommendation, as was
the situation in Petitioner’s case. See Randolph v. McNeil, 590 F.3d 1273, 1277–78 (11th Cir.
2009) (reviewing admission of evidence during sentencing phase for Brecht harmlessness in a
case where the judge ultimately chose the defendant’s sentence); Lamarca v. Sec’y, Dep’t of
Corr., 568 F.3d 929, 943–44 (11th Cir. 2009) (concluding that trial court’s admission of
evidence during guilt phase was harmless under Brecht); Jennings v. McDonough, 490 F.3d
5
The state trial judge testified at a post-conviction evidentiary hearing that he
had examined depositions, medical examiner reports, probate records, and a book
on hypnosis; that he had spoken with at least two outside experts; and that he had
traveled to locations pertinent to the trial. But the judge also testified that he did
not rely on this material in any way, and that someone -- he was unable to recall
whom -- had discussed the information contained in the medical examiner’s reports
during trial. The allegedly damning information in the depositions from
Petitioner’s earlier trial in Georgia was testified to in open court -- testimony trial
counsel admitted was “devastating.”4
More important, no extra-record materials that the judge viewed were
presented to the jury during the guilt or penalty phases. The jury was unaware of
the documents the judge examined, and it did not accompany him on his “view” of
certain pertinent locations -- the jury’s verdict was reached independently of the
trial judge’s personal investigation. Accordingly, his consideration of extra-record
materials had no “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 113 S. Ct. at 1722.
1230, 1251–52 (11th Cir. 2007) (upholding Florida death sentence based, in part, on an improper
aggravating factor when other aggravators were properly found by the jury and applied by the
sentencing judge).
4
The trial judge considered the deposition of another person from the prior Georgia trial,
Ferguson, but disclosed this fact to counsel.
6
Petitioner claims that the trial judge’s pre-trial familiarity with hypnosis and
his conversation with a psychologist about hypnosis were not harmless. Before the
trial, the judge did not disclose his prior experience with hypnosis. Later, at the
hearing on a motion to suppress testimony from witnesses who Petitioner argued
had been hypnotized, the trial judge did not disclose that he had consulted a text on
hypnosis after mentioning to a psychologist-friend that the issue of hypnotism had
come up in Petitioner’s case. The trial judge concluded that the proposed
witnesses had not been “hypnotized” as that term is defined in Florida caselaw,
denied Petitioner’s motion to suppress, and admitted the witnesses’ testimony. The
Florida Supreme Court concluded that, regardless of the trial judge’s personal
experience, independent evidence showed that the witnesses were not hypnotized.
Vining I, 637 So. 2d at 926 (citing Stokes v. State, 548 So. 2d 188, 190 (Fla. 1989)
(defining hypnosis as an “altered state of awareness or perception” during which a
subject is placed in an artificially induced state of sleep or trance)). We conclude
that the trial judge’s experience with hypnosis, conversations with a psychologist,
or familiarity with a book on the subject did not influence the jury or prejudice the
Petitioner because, according to Florida’s law, the witnesses’ testimony would
have been admissible in any event.
In the light of Brecht, the state trial judge’s consideration of outside
7
materials, then, did not “substantial[ly] and injurious[ly]” affect the jury’s
consideration of the facts in concluding that Petitioner was guilty.
Nor did the extra-record information affect the penalty phase. The trial
judge testified at the state post-conviction hearing that he had not been influenced
by outside materials, including the depositions and medical records. The jury--
with no knowledge of the trial judge’s personal investigation -- voted 11-1 in favor
of the death penalty. On a special verdict form, the jury found the same four
statutory aggravating factors the trial judge also found, and three of those
aggravators were upheld on direct appeal.5 Unlike Gardner, where the trial judge
rejected a jury’s recommendation of life imprisonment and sentenced a defendant
to death based on extra-record information, the trial judge in Petitioner’s case
accepted the jury’s recommended sentence. Compare Gardner, 97 S. Ct. at
1201–02 (describing trial judge’s rejection of jury’s recommended verdict based
on his examination of pre-sentence report not available to jurors) with Vining II,
827 So. 2d at 210 (“[The] information relied upon in the sentencing order to
support the aggravating factors was otherwise proven at trial. And . . . given the
5
The jury found that “1) the crime was committed by a person under a sentence of
imprisonment; 2) the defendant was previously convicted of a felony involving the use of
violence to the person; 3) the crime was committed during a robbery; and 4) the homicide was
committed in a cold, calculated, and premeditated manner without any pretense of moral or legal
justification.” Vining I, 637 So.2d at 923–24 (citations and footnotes omitted). Although the
Florida Supreme Court struck the “cold, calculated, and premeditated” aggravator, it upheld the
jury’s findings on the other three. Id. at 928.
8
overwhelming evidence supporting the aggravating factors, [any] error did not
injuriously affect the defendant’s substantial rights.”) (internal quotation marks and
alterations omitted). At the post-conviction evidentiary hearing, the trial judge
testified that the outside materials were proved by other sources at trial -- an
explanation the Florida Supreme Court credited on collateral review. See id.
Three statutory aggravating factors were proved beyond a reasonable doubt,
and the jury reached the same conclusions on these aggravators as the trial judge,
even though they had no access to extra-record materials. See Vining I, 637 So. 2d
at 927–28. As such, Petitioner could only demonstrate prejudice if he could show
that the extra-record information influenced the trial judge’s sentence. But the
presence of the three proved aggravating factors, the minimal mitigating evidence,
the jury’s 11-1 recommendation of a death sentence, and the evidence amassed
against Petitioner convinced the Florida Supreme Court -- reasonably, we believe
-- that the trial judge would still have sentenced Petitioner to death, even if no
Gardner violation had occurred. See also Randolph v. McNeil, 590 F.3d 1273,
1277 (11th Cir. 2009) (contrasting a single negative statement by a defendant’s
girlfriend against the weight of “all the evidence of the statutory aggravating
factors properly considered by the jury” and finding no substantial or injurious
effect under Brecht); Delap, 890 F.2d at 302–03 (describing the structure of
9
Florida’s death penalty sentencing scheme and noting that the “trial judge’s
consideration of the statutory aggravating factors could not have been affected by
[reviewing outside information] as all of the factors relate either to the crime itself
or to the defendant’s prior criminal record”).
Petitioner also contends that the state trial judge -- relying on extra-record
materials -- improperly rejected a nonstatutory mitigating factor, namely that the
Petitioner was a good father. But Petitioner has offered no evidence showing that
the trial judge considered outside information before refusing to apply the
mitigator. Instead, he argues that the trial judge must have considered extra-record
information because the judge never stated that he had not considered such outside
information, and because the only testimony on Petitioner’s quality as a father was
favorable. In fact, the trial court could have concluded that Petitioner’s criminal
record and his ex-wife’s testimony that he had trouble with alcohol were sufficient
to cast doubt on Petitioner’s quality as a good father. Petitioner cannot rely on a
supposed inference drawn from silence to carry his burden of establishing error
and prejudice. And we conclude that any error in rejecting this mitigating factor
was harmless. See also Trotter v. Sec’y, Dep’t Of Corr., 535 F.3d 1286, 1289–93
(11th Cir. 2008) (affirming denial of petition for post-conviction relief in death
penalty case where the Florida trial court found four statutory aggravators but also
10
two statutory and several nonstatutory mitigators); Baldwin v. Johnson, 152 F.3d
1304, 1324 n.22 (11th Cir. 1998) (holding harmless trial court’s alleged failure to
consider a nonstatutory mitigating factor in the light of the “aggravating
circumstances and facts of this case”).
We conclude that Petitioner has not demonstrated “actual prejudice” as
explained in Brecht, and therefore his Gardner claim was properly denied as a basis
for post-conviction relief.
II. Ineffective Assistance of Counsel
Petitioner asserts that he was denied effective assistance of counsel during
the guilt and penalty phases of trial. Strickland v. Washington, 104 S. Ct. 2052
(1984), governs the consideration of a claim for ineffective assistance of counsel.
“To establish an ineffective assistance of counsel claim under the Sixth
Amendment [as explained in Strickland], ‘[a] petitioner must show that counsel’s
performance was deficient, and that the deficiency prejudiced the defense.’”
Williams v. Allen, 598 F.3d 778, 788 (11th Cir. 2010). If a petitioner cannot prove
both elements of the Strickland inquiry, his ineffective assistance of counsel claim
cannot succeed. Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1319 (11th
11
Cir. 2005). And because Petitioner’s claim is governed by AEDPA’s requirements
on deference to state court adjudications, to get relief he must “satisfy the elements
of the Strickland standard, [and] also show that the State ‘court applied Strickland
to the facts of his case in an objectively unreasonable manner.’” Williams, 598
F.3d at 789.
Counsel’s performance was deficient if it “fell below an objective standard
of reasonableness.” Strickland, 104 S. Ct. at 2064. A petitioner demonstrates
Strickland prejudice by showing “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 2068. We conclude that Petitioner cannot demonstrate either deficient
performance or prejudice in his Strickland claims.
Petitioner mainly argues that counsel’s failure to object to the trial judge’s
consideration of extra-record material or to move for recusal of a “manifestly
bias[ed]” judge6 deprived him of effective assistance of counsel. During the guilt
phase of the trial, the trial judge did consider extra-record and ex parte materials,
but none of the information gleaned from the judge’s private investigations altered
the strong evidence pointing to Petitioner’s culpability.7 Nor did it influence the
6
There is no evidence of personal bias, that is, extra-judicial bias, of the trial judge
against Petitioner. The evidence of bias is the supposed Gardner violation.
7
This record evidence includes identification testimony, Petitioner’s conduct around the
time of the crime, and other testimony during the penalty phase that defense counsel admitted
12
jurors who never had access to information beyond the record. We are not
persuaded that the trial would have come out differently had counsel raised
Gardner objections or moved for a recusal, and we agree with the district court that
the Florida Supreme Court’s decision was not contrary to federal law or
unreasonable given the facts.
Petitioner notes that trial counsel failed to challenge two witnesses’
identification of Petitioner as being with the victim on the day of her death. He
contends that these witnesses had been hypnotized and that counsel should have
refreshed the witnesses’ recollections and impeached their testimony. He also
argues that trial counsel should have objected to the judge’s familiarity with
hypnosis and to the admission of “hypnotized” testimony and argues that counsel
should have cross-examined witnesses about whether they had been hypnotized.
Even if we accepted that counsel may have been deficient by not objecting to the
witnesses’ testimony or more thoroughly cross-examining the witnesses
themselves, we accept the Florida Supreme Court’s view as reasonable: no
reasonable probability existed that the trial would have come out differently.8
“[T]he record clearly supports the state habeas court’s [and the district court’s]
was “devastating” to Petitioner’s case.
8
Florida’s Supreme Court concluded that no witness had been hypnotized in Petitioner’s
case.
13
determination that there is no reasonable probability that additional
cross-examination, impeachment, or expert testimony [on this issue] would have
altered the outcome of [Petitioner’s] trial.” Boyd v. Allen, 592 F.3d 1274, 1309
(11th Cir. 2010).
The failure to object to the state trial court’s decision to reject the “good
father” mitigator also does not rise to the level of Strickland prejudice. Petitioner
offers no evidence showing that the trial court examined outside information in
rejecting the mitigating factor; he has failed to meet his evidentiary burden for a
basis for a valid objection. But even if he offered proof that the trial judge had
used extra-record evidence in this way, mitigating evidence need only be
considered, not relied upon. Even if the trial judge had applied the mitigator, it is
reasonable to conclude that the he would still have sentenced Petitioner to death
based on the presence of aggravating factors. Schwab v. Crosby, 451 F.3d 1308,
1329 (11th Cir. 2006).9 Again, Petitioner does not meet the burden of
demonstrating prejudice under Strickland, much less the unreasonableness of the
9
Petitioner claims that counsel was ineffective because she failed to introduce mitigating
evidence showing that Petitioner’s mother was an alcoholic, that Petitioner was a good student
and son, that Petitioner saved his ex-wife’s life, and that Petitioner was himself an alcoholic.
But the record refutes this argument: at sentencing, counsel produced evidence related to all of
these mitigating factors. It was no unreasonable application of federal law for the Florida
Supreme Court to determine that Petitioner’s argument on this point had no merit.
14
state court decisions under AEDPA.10
The Florida Supreme Court and the district court both rejected Petitioner’s
argument that counsel was ineffective because she did not adequately investigate
and present evidence on Petitioner’s conviction in Georgia. The Florida Supreme
Court’s determination that counsel was not deficient in this matter -- as she had
objected to witness testimony, limited the testimony through objections, and
moved for a mistrial -- was neither an unreasonable application of federal law nor
was it unsupported by facts in the record.
III. Conclusion
We cannot say that Florida’s Supreme Court has decided pertinent law or
facts unreasonably, or in a way that is contrary to clearly established federal law.
We have considered all of Petitioner’s claims on ineffective assistance of counsel,
and we conclude that he has not demonstrated that he is entitled to relief. We have
also determined that any Gardner error was harmless in the light of Brecht and of
10
Petitioner raised several other ineffective assistance claims in the state and district
courts. Petitioner did not address those other claims in his brief. Therefore, we consider the
other Strickland claims abandoned. See Gary v. Hall, 558 F.3d 1229, 1249 (11th Cir. 2009)
(concluding that habeas petitioner’s Strickland claims were abandoned because “habeas counsel
did not address the ineffective assistance of counsel claims” in the initial brief).
15
our duty on collateral review to ascertain if Petitioner was “actually prejudiced”
during his trial. Because Petitioner has demonstrated no basis for post-conviction
relief, the district court’s denial of his petition for a writ of habeas corpus is
AFFIRMED.
16