[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 21, 2011
JOHN LEY
No. 09-12480 CLERK
________________________
D. C. Docket No. 07-00425-CV-WTH-GRJ
ALLEN W. COX,
Petitioner-Appellant,
versus
WALTER A. MCNEIL,
Secretary, Department of Corrections,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 21, 2011)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Allen Cox, a Florida state prisoner, appeals from the district court’s denial of
his 28 U.S.C. § 2254 habeas petition challenging his capital conviction and
sentence. We granted a Certificate of Appealability on two issues: (1) whether the
prosecutor’s comments during voir dire and closing argument violated Cox’s Fifth
Amendment right to due process; and (2) whether Cox received ineffective
assistance of counsel during the guilt and penalty phases of his trial. Specifically,
Cox argues that his counsel was ineffective because he (1) failed to object to the
prosecutor’s misstatements of law; (2) failed to conduct a meaningful voir dire,
which deprived Cox of an impartial jury; (3) presented a defense during his
opening statement that had no legal basis, which prejudiced Cox in the eyes of the
jury; (4) failed to object to prejudicial testimony from the State’s medical
examiner; (5) questioned a defense witness at trial in a manner that elicited
prejudicial testimony; and (6) failed to adequately investigate and present
mitigating evidence at the penalty phase of trial.
I. Background
Cox was convicted and sentenced to death in 1999 for premeditated murder
that occurred in a state prison. The charges against Cox arose from a chain of
events within the Lake Correctional Institution that resulted in the death of Thomas
2
Baker, a fellow inmate. A detailed description of the facts of Cox’s crime can be
found in the Florida Supreme Court’s decision issued on direct appeal. See Cox v.
State, 819 So. 2d 705, 709-10 (Fla. 2002) (“Cox I”), cert. denied 537 U.S. 1120
(2003). The jury rendered a guilty verdict and recommended a death sentence by a
vote of ten to two.
On direct appeal, Cox argued among other things that he received a
fundamentally unfair trial because the prosecutor misstated the law during voir dire
and closing argument. The Florida Supreme Court held that although the
prosecutor’s description of the law was clearly wrong, the error was harmless. Cox
I, 819 So. 2d at 718-19. The court then denied relief on all of his claims and
upheld his conviction and sentence.
Cox subsequently filed a post-conviction motion for relief in state court
alleging ineffective assistance of counsel in both the guilt and penalty phases of
trial. After conducting a full evidentiary hearing on this claim, the state trial court
denied his motion, and the Florida Supreme Court affirmed. Cox v. State, 966 So.
2d 337, 345-64 (Fla. 2007) (“Cox II”). Cox then filed a federal petition for a writ
of habeas corpus on the basis of his due process and ineffective assistance of
counsel claims. The district court denied his petition and we granted his request
for a Certificate of Appealability as noted above.
3
II. Standard of Review
“When examining a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009)
(citation omitted), cert. denied 130 S. Ct. 3399 (2010). Under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), we may grant habeas relief to a state
prisoner on any claim adjudicated on the merits in state court if that adjudication
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. 28 U.S.C. § 2254(d)(1). The Supreme Court has explained the
requirements of § 2254(d) as follows:
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
III. Discussion
A. Due Process Claim
Cox first asserts that his due process rights were violated at trial because (1)
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the prosecutor made erroneous statements of law to the jury regarding the legal
standard for weighing aggravating and mitigating circumstances; and (2) the
prosecutor made prejudicial remarks during closing arguments. We address each
argument in turn.
1. The prosecutor’s misstatements of law
During jury selection, the prosecutor erroneously advised the prospective
jurors that “if the evidence in aggravation outweighs the evidence in mitigation, the
law says that you must recommend that Mr. Cox die.” The substance of this
misstatement was repeated four times during voir dire and again during the
prosecutor’s closing argument. Defense counsel did not object to these
misstatements of law. The trial court did not explicitly correct the prosecutor’s
misstatements of law, but provided the following standard jury instruction at the
close of trial:
Should you find sufficient aggravating circumstances do exist, it will
then be your duty to determine whether mitigating circumstances exist
that outweigh the aggravating circumstances. . . .
You should weigh the aggravating circumstances against the
mitigating circumstances and your advisory sentence must be based
on these considerations.
[The] weighing of aggravating and mitigating circumstances is not
just a counting process. You are free to assign whatever weight you
find appropriate to the aggravating and mitigating circumstances and
then make your own judgment in light of the totality of the
circumstances.
5
On direct appeal, the Florida Supreme Court agreed that the prosecutor
“misstated Florida law by advising prospective jurors that if ‘the evidence in
aggravation outweighs the evidence in mitigation, the law says you must
recommend that Mr. Cox die.’” Cox I, 819 So. 2d at 717 (emphasis in original).
Although the Court found that “[i]t is unmistakable that these statements are
improper characterizations of Florida law,” it held that the misstatements were
harmless error because “the trial court did not repeat the prosecutor’s
misstatements of the law during its instruction of the jury,” and “the trial court’s
instructions properly informed the jury of its role under Florida law.” Id. at 717-
18. As did the Florida Supreme Court, we have reviewed the totality of the record
before us and, on this record, we cannot say that the Florida Supreme Court’s
decision was contrary to or an unreasonable application of clearly established
federal law.
2. Remarks made during closing argument
Cox also claims that his due process rights were violated by the following
statements made by the prosecutor during closing arguments. First, the prosecutor
stated: “I stand before you again today on behalf of the decent law-abiding people
of this community and this state, whom I represent.” Cox argues that this
argument was improper because the prosecutor wrapped himself in the cloak of
state authority and intended to appeal to the emotions and fears of the jurors.
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Second, the prosecutor emphasized during closing argument that Cox’s traumatic
childhood should be put in context, as it happened more than twenty-five years
earlier. Cox argues that this argument was fundamentally unfair because it
improperly denigrated valid mitigating evidence.
The State argues that Cox is barred from raising this claim in his federal
habeas petition because he failed to raise it as a federal claim in state court. On
direct appeal to the Florida Supreme Court, Cox presented this claim as a state law
claim and cited no federal law. The Florida Supreme Court likewise ruled solely
on state law grounds. See Cox I, 819 So. 2d at 718. Because Cox did not raise
these federal claims in state court, the district court did nor err in holding that he is
barred from raising them in his federal habeas petition. See McNair v. Campbell,
416 F.3d 1291, 1302 (11th Cir. 2005).
B. Ineffective Assistance of Counsel Claims
Cox claims ineffective assistance of counsel during both the guilt and
penalty phases of his trial. Cox contends that he was denied effective assistance
during the guilt phase because his counsel: (1) failed to object to the prosecutor’s
misstatements of law during voir dire and closing argument as described above,
thereby depriving Cox of the right to be tried by an impartial jury; (2) failed to
conduct a meaningful voir dire, which also deprived Cox of an impartial jury; (3)
presented a defense during his opening statement that had no legal basis, which
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prejudiced Cox in front of the jury; (4) failed to object to prejudicial testimony
from the State’s medical examiner; and (5) questioned a defense witness at trial in
a manner that elicited prejudicial testimony. As to the penalty phase, Cox asserts
that he was denied effective assistance because his counsel failed to adequately
investigate and present crucial mitigating evidence.
Ineffective assistance of counsel claims are governed by the Supreme
Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on
a claim of ineffective assistance of counsel, the petitioner must show (1) that
“counsel’s representation fell below an objective standard of reasonableness,” and
(2) that “there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different.” Id. at 688. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
“Because a petitioner’s failure to show either deficient performance or prejudice is
fatal to a Strickland claim, a court need not address both Strickland prongs if the
petitioner fails to satisfy either of them.” Kokal v. Sec’y, Dept. of Corr., 623 F.3d
1331, 1344 (11th Cir. 2010). Applying these principles, we address each of Cox’s
ineffective assistance of counsel arguments in turn.
1. Ineffective assistance of counsel during voir dire
Cox argues first that his trial counsel was ineffective because he failed to
object to the prosecutor’s misstatements of law concerning the weighing of
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aggravating and mitigating factors, as described above. As the Florida Supreme
Court found, counsel’s performance here was deficient. Constitutionally effective
counsel would have objected to the clear misstatements of law and informed the
jurors that they would not be required to recommend a death sentence, even upon a
finding that the aggravation evidence outweighed the mitigation evidence. Under
Strickland, however, we must consider whether Cox was prejudiced by counsel’s
deficient performance. The Florida Supreme Court found that Cox had not shown
a “reasonable probability” that the prosecutor’s misstatements of law contributed to
Cox’s conviction or sentence, and thus Cox had failed to satisfy the prejudice
prong of Strickland. Cox II, 966 So. 2d at 347. As we have noted, on this record
as to this issue, we cannot say that the Florida Supreme Court’s decision was
contrary to or an unreasonable application of clearly established federal law.
Cox also argues that his trial counsel’s own voir dire was deficient. First,
Cox argues that his trial counsel tainted the panel of prospective jurors by, in the
presence of the other panel members, questioning a juror about why she wrote “fry
him” on her questionnaire. However, Cox’s counsel repeatedly moved to conduct
a sequestered voir dire on the prospective jurors’ opinions about the death penalty,
which the trial judge denied. The Florida Supreme Court determined that
counsel’s questioning of this particular juror was reasonable because he was
attempting to resolve a conflict between the juror’s verbal statements about her
9
attitude toward the death penalty (“I can vote life”) and the written answer on her
questionnaire (“fry him”). Id. at 348-49. We cannot say that, under the
circumstances presented, it was contrary to or an unreasonable application of
clearly established federal law for the Florida Supreme Court to conclude that
counsel was not constitutionally ineffective in questioning this juror in the
presence of others.1
Finally, Cox argues that his trial counsel was ineffective during voir dire
because he failed to adequately probe the prospective jurors about mitigation and
mental health issues, and never discussed statutory and non-statutory mitigators
with the prospective jurors. Cox argues that this conduct fell short of the standards
for reasonableness as articulated by the American Bar Association guidelines for
capital defense work, which provide that counsel should be familiar with
techniques “for uncovering those prospective jurors who are unable to give
meaningful consideration to mitigating evidence.” 2003 ABA Guidelines for the
Appointment & Performance of Counsel in Death Penalty Cases 10.10.2(B), p. 104
(2003); see Wiggins v. Smith, 539 U.S. 510, 523 (2003) (“[W]e have long referred
[to the ABA standards] as guides to determining what is reasonable.”) (quotation
marks omitted). Cox argues that he was prejudiced by counsel’s deficient voir dire
because it contributed to the empaneling of a “confused and indifferent panel.”
1
This juror ultimately was excused and did not serve on the jury.
10
The Florida Supreme Court concluded that Cox failed to establish deficiency
under Strickland because he did not “elaborate upon or provide insight as to what
questions counsel should have asked, or explain the inadequacy of the questions
asked.” Cox II, 966 So. 2d at 349. In addition, the Florida Supreme Court found
that Cox did not allege how he was prejudiced by this allegedly deficient voir dire.
Id. Even assuming that counsel’s voir dire was deficient, Cox has not
demonstrated a reasonable probability that the outcome of either his guilt or
penalty phase would have been different had his counsel discussed mitigation at
greater length with the potential jury members, and thus we cannot say that the
Florida Supreme Court’s decision was contrary to or an unreasonable application
of clearly established federal law.
2. Ineffective assistance of counsel during guilt phase: invalid defense
Cox argues that his trial counsel was ineffective because he argued a defense
to the jury during his opening statement that had no legal basis, which Cox argues
prejudiced him in the eyes of the jury because the jury rejected the defense.
Counsel attempted to attack the element of premeditation by arguing that it was the
delay in medical care at the prison facility that caused Baker’s death. The state
objected to testimony regarding this delay, and counsel continued as follows:
[T]he standard of care or the care that Mr. Baker received goes to the
issue of premeditation. This is not a situation . . . where we had many,
many, many stab wounds and Allen Cox should have known that
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Thomas Baker’s death was likely to result.
In fact, if the State’s theory is, and it, under a First Degree prosecution
must be, is that Allen Cox’s purpose was to kill Thomas Baker and
that theory, that effort was abandoned by Allen Cox when he released
Thomas Baker and Thomas Baker ran off to C dorm. Allen Cox didn’t
chase him. Allen Cox didn’t beat him unconscious and did not stab
him until he didn’t move anymore.
Cox II, 966 So. 2d at 351.
Cox contends that this defense was legally invalid because the standard for
premeditation is whether the defendant intended to kill, not whether he should have
known that death would result. He asserts that because this defense had no basis in
Florida law, counsel’s decision to proffer it deprived him of effective assistance of
counsel. On direct appeal, the Florida Supreme Court concluded “that counsel’s
discussion of the faulty medical care received by Baker constituted a reasonable
trial court strategy to attack the element of premeditation in the State’s case,” in
that Cox did not continue to stab Baker or otherwise assure his immediate death.
Id. at 352. The Florida Supreme Court also concluded that this fact could have
been relevant in deciding the applicability of the death penalty. Id. We cannot say
that the state court’s disposition of this claim was contrary to or an unreasonable
application of clearly established federal law.
3. Ineffective assistance of counsel during guilt phase: failure to
properly question witnesses
As his last claim regarding the guilt phase, Cox asserts that his counsel was
12
ineffective because he failed to object to prejudicial testimony from the State’s
medical examiner, Dr. Janet Pillow, and also because he improperly questioned
defense witness Vincent Maynard in a manner that elicited prejudicial testimony.
We address Cox’s claim as to each witness in turn.
Dr. Janet Pillow
Cox asserts that his counsel was ineffective because he failed to object when
Dr. Janet Pillow, the State’s medical expert, testified that the reason blood was not
found on the blade used to kill Baker was because it could have been wiped clean
when it was extracted from his body. Cox contends that this was speculation and
that defense counsel was ineffective in allowing the witness to speculate.
However, Cox’s counsel explained during the post-conviction evidentiary hearing
that he had strategic reasons for his decision not to object to Dr. Pillow’s testimony
about the blood on the shank. Cox II, 966 So. 2d at 353. First, he believed the
testimony fell within the realm of the witness’s expertise and was thus admissible.
Second, Dr. Pillow’s testimony was not inconsistent with the theory of the defense
that the shank in evidence was not the one used to stab Baker, in any case. Id. On
this record, we cannot say that it was contrary to or an unreasonable application of
clearly established federal law for the Florida Supreme Court to hold that counsel
was not ineffective for failing to object to this testimony.
Cox also argues that trial counsel was ineffective by failing to object to Dr.
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Pillow’s speculative testimony that it was “certainly possible” that a person who
had experienced injuries similar to Baker would recognize that he was in “serious
danger of dying.” Id. The Florida Supreme Court concluded that Cox was not
prejudiced by his counsel’s failure to object to this testimony. Id. at 354. In so
holding, the Florida Supreme Court emphasized that the trial court’s
postconviction order detailed the “copious evidence through which the jury could
have independently reached the conclusion that Baker was aware of his impending
death,” including: testimony from several witnesses that Baker was scared and
hysterical after he was stabbed, was having trouble breathing, was coughing up
blood, and stated that he felt his lungs were filling with blood; testimony from Dr.
Pillow that during the autopsy she found about one quart of blood in Baker’s chest
cavity; and testimony from one inmate that Baker stated, “please don’t let me die.”
Id. In light of all of this evidence, we cannot say that Cox has demonstrated a
reasonable probability that the result of the proceeding would have been different
had defense counsel objected to Dr. Pillow’s testimony, and thus we cannot say
that the Florida Supreme Court’s conclusion that Cox failed to show prejudice was
contrary to or an unreasonable application of clearly established federal law.
Vincent Maynard
Cox also challenges his counsel’s examination of Cox’s fellow inmate,
Vincent Maynard. One theory of the defense was that Maynard, not Cox, killed
14
Baker. During direct examination, defense counsel was hostile toward Maynard
and blamed him for Baker’s death. In response to an unrelated, but hostile, line of
questioning, Maynard revealed to the jury that Cox was already serving two life
sentences. Cox contends that defense counsel was ineffective for questioning
Maynard in such an aggressive manner because it led to the introduction of this
prejudicial evidence.
During the post-conviction hearing, counsel explained that his strategy was
to convey to the jurors through Maynard’s demeanor at trial that he had the
propensity to kill Baker. He further testified that by aggressively questioning
Maynard, he did elicit exactly the testimony and demeanor desired. Moreover, the
prejudicial information revealed was non-responsive to the question posed by
defense counsel, despite the trial court having instructed Maynard only to answer
the questions asked. Id. at 356. Thus, counsel could not have anticipated the
prejudicial testimony.
Moreover, independent evidence was presented at trial that Cox was a felon
with an extensive criminal history and, given that the murder occurred in a prison,
the jury knew he was incarcerated. Cox himself testified at trial that he had been
convicted of twelve prior felonies. In addition, the trial judge gave a curative
instruction to the jurors not to consider Cox’s life sentences and informing them
that the convictions were not for any type of murder or homicide. On this record,
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we cannot say that it was contrary to or an unreasonable application of clearly
established federal law for the Florida Supreme Court to conclude that defense
counsel’s manner of questioning Maynard did not fall below a reasonable standard
of care. Even if we were to find that defense counsel’s method of questioning was
deficient, it was not contrary to or an unreasonable application of clearly
established federal law for the Florida Supreme Court to determine that Cox failed
to satisfy the prejudice prong of Strickland.
4. Ineffective assistance of counsel during penalty phase: failure to
investigate and present adequate mitigating evidence
As to the penalty phase, Cox contends that his trial counsel was ineffective
because he failed to adequately investigate mitigating evidence and that, as a result,
available and substantial mental health mitigation evidence was not presented to
the jury.
First, Cox argues that his counsel was deficient because he failed to
promptly begin his investigation into mental health mitigation evidence. Cox
argues that trial counsel’s delay in investigating mitigating evidence fell short of
the ABA guidelines for capital defense work, which instruct that “investigations
for both the guilt and penalty phase should begin immediately upon counsel’s
entering the case.” ABA Guideline 11.4.1 (1989). According to Cox, counsel’s
deficient performance is evidenced by his failure to meet certain deadlines set by
the trial court concerning mental health mitigators. Specifically, trial counsel (1)
16
did not have Cox’s psychiatric evaluation completed or reviewed on the day before
counsel was required to submit a statement of particulars as to any mental health
mitigators to the court; (2) admitted that he did not file a notice disclosing mental
health mitigators sixty days before trial because he did not yet know which
mitigators potentially applied to Cox; and (3) had only a “summary idea,” eight
days before trial, of what Dr. Elizabeth McMahon, a forensic psychologist who
ultimately testified at Cox’s penalty phase, was going to articulate as potential
mitigators.
Cox also argues that the mitigation evidence presented at the penalty phase
was incomplete and inadequate because his counsel failed to contact certain
available witnesses who had crucial information concerning mental health
mitigation. During the penalty phase of the trial, defense counsel presented the
testimony of four witnesses: an inmate housed with Cox at Lake Correctional
Institution; Cox’s grandmother; Cox’s sister; and Dr. Elizabeth McMahon.
Defense counsel also read the deposition testimony of Cox’s father, Ray Cox, to
the jury. Cox argues that his life would have been better described to the jury by
Betty Gilbert (Cox’s stepmother), Cathy Null (Cox’s youngest sister), Theresa
Morgan (Cox’s ex-girlfriend), Tina Farmer (another ex-girlfriend), and Nina
Thomas (Tina Farmer’s twin sister). Cox asserts that his trial counsel’s
performance was deficient because he knew about these potential witnesses during
17
his investigation but did not interview or even contact them when he traveled to
Cox’s hometown to investigate Cox’s background, and did not call them to testify
at the penalty phase.
In support of this argument, Cox relies on the testimony of Dr. Berland, who
did not testify at trial but only at the post-conviction evidentiary hearing on Cox’s
ineffective assistance claim. Dr. Berland interviewed the additional witnesses
listed above, and concluded that two statutory mitigators applied to Cox: (1) that
he had a substantially impaired ability to conform his conduct to the law; and (2)
that he was under the influence of extreme mental or emotional disturbance at the
time of the murder. Cox argues that Dr. Berland’s testimony is indicative of what
could and should have been presented at trial.
After a thorough evidentiary hearing, the state trial court denied relief on this
claim and the Florida Supreme Court affirmed the determination that counsel’s
performance did not fall outside the range of reasonably competent performance
under prevailing professional standards. Cox II, 966 So. 2d at 362. Specifically,
the Florida Supreme Court found that:
[D]efense counsel engaged in all reasonable steps necessary to
investigate and develop mitigation for the penalty phase of the trial.
As noted above, he retained Dr. Berland as soon as he obtained the
necessary medical records. Within three days of being informed that
the first expert was too busy to evaluate Cox, he retained Dr.
McMahon, a forensic psychologist with over twenty years experience.
McMahon spent thirteen hours with Cox, reviewed a plethora of
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documentation with regard to his mental health, and performed a
battery of tests. Although Dr. McMahon ultimately concluded that the
statutory mental health mitigators were not applicable to Cox, this
Court has repeatedly emphasized that a reasonable investigation into
mental health mitigation is not rendered incompetent merely because
the defendant has now secured the testimony of a more favorable
mental health expert.
We conclude that defense counsel was not deficient with regard to the
timing of meeting with the family because any delay was due to the
fact that Cox had informed defense counsel that he did not want his
family involved. A strategic decision was made that the client’s
wishes would be honored because counsel wanted to establish a
relationship in which Cox had full trust. Upon receiving permission
from Cox to speak with family members, counsel proceeded to
Kentucky. He then accompanied Cox’s father in an attempt to
investigate the area where Cox was raised and to contact witnesses
who might be able to offer mitigating evidence.
Id. at 362-63 (internal citations and quotation marks omitted). With reference to
the medical testimony, based on the evidentiary hearing, the Florida Supreme
Court explained:
[C]ounsel was not deficient for failing to investigate or provide Dr.
McMahon with information about head injuries or mental illness
suffered by Cox because the medical records from the motorcycle
accident did not indicate that Cox suffered any type of head injury.
Further, Cox did not seek medical treatment after the mule incident so
there was no documentation with regard to whether or how seriously
he was injured. Finally, Cox neither informed counsel that he had
suffered head trauma nor reported any symptoms indicative of head
injury or mental illness. Finally, even though counsel could have
presented additional witnesses to offer evidence in mitigation, he
made a strategic decision to limit the number of witnesses so the jury
would not lose interest. He also decided not to present the testimony
of witnesses who could potentially present harmful information about
Cox. . . . Even if we were to assume deficient performance, we
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conclude that there is no prejudice.
. . . Having reviewed the evidence presented during the postconviction
hearing, we conclude that Cox was not prejudiced by counsel’s failure
to present [additional] testimony for three reasons.
First, although Dr. Berland testified that witnesses reported that Cox
had exhibited symptoms of psychosis, Dr. McMahon opined that there
was a total lack of consistency and concordance between the witness
reports. She further noted that Dr. Berland’s report at times did not
accurately reflect the witnesses’ statements. Additionally, Dr.
McMahon testified that she did not believe Cox suffered from any
psychosis, and Dr. Dee similarly expressed the opinion that Cox was
not psychotic at the time of the crime. Dr. McMahon’s conclusions are
buttressed by DOC mental health reports on Cox that were prepared
immediately before and after the murder. Cox was seen by Dr. Nora
Cutillar three days before the murder, and her report stated that Cox’s
affect was “appropriate” and he denied audiovisual hallucinations and
suicidal or homicidal ideations. Three days after the murder . . . Cox
was seen by psychologist Dr. Joel Kelly, and his report indicated that
Cox was alert and well oriented and his affect was appropriate.
Finally, Cox was seen by a psychiatric specialist two days after the
murder, and her report indicated that Cox was well oriented, he denied
audiovisual hallucinations, and he was reluctant to comment about
suicidal ideation.
Second, although Dr. Berland testified that Cox’s purported head
injuries likely exacerbated his mental illness, the evidence of whether
Cox actually suffered head trauma and, if so, how severe was very
equivocal. With regard to the motorcycle accident, Cox informed
Berland that he did not lose consciousness during the accident, nor did
he experience nausea or vomiting. Cox also stated that he was wearing
a helmet. Further, the hospital records for Cox did not mention a head
injury or any loss of consciousness. With regard to the mule incident,
even though Berland testified that Cox was knocked unconscious for
“apparently several hours,” Ray Cox, who was present during the
incident, testified that Cox was “just addled.” Again, Cox denied to
Berland that he experienced nausea, vomiting, or headaches after this
incident. Finally, with regard to the incident in which Cox was
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allegedly struck with a bottle, Berland testified that he learned about it
from a summary of an interview conducted by the CCRC investigator,
but he never actually verified the incident with a witness.
Id. at 363-64 (internal footnote and citations omitted). With reference to calling
additional witnesses, the Florida Supreme Court noted that the testimony of the
additional witnesses would have been cumulative to that actually presented at trial:
[E]vidence was presented during the penalty phase demonstrating that
(1) Cox grew up in an unstable environment with a physically and
emotionally abusive mother who abandoned him, a father who
neglected him, and a grandmother who failed to discipline him, (2) his
parents were related to each other, and there was a history of mental
illness in his family, (3) Cox attempted suicide when he was a
teenager, and (4) Cox was severely injured in a motorcycle accident
when he was a teenager.
Id. at 364. The Florida Supreme Court concluded:
Although Kathy Null and Betty Gilbert may have been able to provide
more detailed testimony with regard to the abuse that Cox suffered
and observed during formative years, Cox has failed to demonstrate
that he was prejudiced by counsel’s failure to present cumulative
evidence. See Maxwell, 490 So. 2d at 932 (“It is highly doubtful that
more complete knowledge of appellant’s childhood circumstances,
mental and emotional problems, school and prison records, etc.,
would have influenced the jury to recommend or the judge to impose
a sentence of life imprisonment rather than death.”).
Id.
On this record, we cannot say that the Florida Supreme Court’s analysis and
resolution of this claim was contrary to or an unreasonable application of clearly
established federal law. Thus, the district court did not err in denying Cox’s
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habeas petition on this claim.
AFFIRMED.
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