[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 25, 2011
No. 09-11750 JOHN LEY
CLERK
D. C. Docket No. 04-81180 CV-MGC
NORBERTO PIETRI,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Secretary of Florida Department of Corrections,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(May 25, 2011)
Before DUBINA, Chief Judge, CARNES and BLACK, Circuit Judges.
DUBINA, Chief Judge:
Petitioner, Norberto Pietri (“Pietri”), appeals the district court’s order
denying him habeas relief pursuant to 28 U.S.C. § 2254. For the reasons that
follow, we affirm.
I. BACKGROUND
A. Facts
The facts are taken verbatim from the Supreme Court of Florida’s opinion
addressing Pietri’s appeal of his convictions and sentences.
On August 18, 1988, Pietri walked away from the Lantana
Community Correctional Work Release Center. At the time, he was
restricted to the center’s grounds while he awaited transfer to a more
secure facility. After his escape, Pietri began a four-day binge of
using cocaine. He testified that during this time he committed
burglaries to support his drug use. On August 22, he ran out of drugs.
Driving a pickup truck he had stolen the day before, Pietri went
to a house, broke in, and stole items including a 9–mm semiautomatic
firearm and a .38–caliber revolver. After the burglary, a witness saw
Officer Chappell sitting on his motorcycle, apparently watching for
speeding motorists. The witness saw a man driving a silver pickup
truck speed by Chappell, and the officer gave chase. The driver
stopped after about a mile. Chappell motioned for the driver to move
forward to avoid blocking traffic, and the driver complied.
Witnesses testified that as Chappell approached the truck, his
gun was in its holster. When the officer was within two to four feet of
the truck the driver shot him once in the chest. A forensics firearm
examiner testified that Chappell was shot from a distance of three to
eight feet. He testified that the casing of the bullet that killed
Chappell matched the casings of 9–mm bullets provided by the
2
burglary victim. Thus, the firearms examiner concluded, the bullets
had been fired from a weapon taken in the burglary.
After firing the gun, the driver sped off, and Chappell radioed
that he had been shot. The first officer who arrived at the scene
testified that Chappell’s gun was still in the holster. The holster had
been unsnapped, however, indicating that Chappell may have tried to
remove his weapon.
After leaving the scene of the shooting, the driver went to his
nephew’s house for help disposing of the truck. He dumped the truck
in a canal off the Florida Turnpike, and a fingerprint found inside the
driver’s side window was later identified as Pietri’s. Officer
Chappell’s death prompted an intense search, with Pietri identified as
the prime suspect. Pietri stole another car on August 24 and was
spotted by police officers near his sister’s apartment and later by an
off-duty officer at a church. Pietri threatened to shoot the officer, who
was not in uniform, and escaped.
Later that same evening, a couple and their five-year-old son
were in their car in the driveway of their home. As they prepared to
leave, the husband realized he had left something in the house. When
he returned to the house, Pietri got in the car and told the wife, “We’re
leaving, we’re leaving.” He told the woman, who was in the driver’s
seat, “Drive, or I’ll shoot you.” When she hesitated, Pietri pushed her
out of the car and began to drive away. He slowed down, however,
and let the husband, who had emerged from the house, take their son
from the back seat.
Another police officer spotted the couple’s car. The driver
stopped and waved the officer toward the car. As the officer
approached the car with his gun drawn, the driver sped off. Two other
officers picked up the chase, which proceeded at speeds of more than
100 miles per hour. Pietri eventually lost control of the car, then
jumped out of the car and began running. As Pietri ran, he reached
into his pants, pulled out a bag of cocaine, and put it into his mouth.
Delray Beach officer Michael Swigert caught Pietri and arrested him.
3
Pietri testified in his own defense that he is blind in his right eye
and that he developed a cocaine addiction which he financed with
burglaries. He testified that Chappell stopped him while he was
planning to sell stolen goods. Pietri admitted shooting Chappell, but
said he had not planned to kill the officer and did not aim for his heart.
Pietri v. State, 644 So. 2d 1347, 1350 (Fla. 1994).
B. Procedural History
A jury convicted Pietri of first degree murder of police officer Brian
Chappell and numerous other felonies. The jury recommended, by a vote of 8 to 4,
that Pietri receive a death sentence for the murder conviction. The trial court
followed the jury’s recommendation and imposed a death sentence. The Florida
Supreme Court affirmed Pietri’s convictions and sentences on appeal, Pietri v.
State, 644 So. 2d 1347 (Fla. 1994), and the United States Supreme Court denied
certiorari, Pietri v. Florida, 515 U.S. 1147, 115 S. Ct. 2588 (1995). Pursuant to
Florida Rules of Criminal Procedure Rule 3.850, Pietri filed a motion for post-
conviction relief on March 14, 1997, and the trial court granted him an evidentiary
hearing on his claims of ineffective assistance of guilt and penalty phase counsel.
Following the hearing, the trial court denied Pietri collateral relief. Pietri appealed
to the Florida Supreme Court and simultaneously filed a petition for writ of habeas
corpus in the Florida Supreme Court. The state appellate court affirmed the trial
court’s order denying Pietri collateral relief, and it denied his petition for writ of
4
habeas corpus. Pietri v. State, 885 So. 2d 245, 276 (Fla. 2004). Pietri then filed a
federal habeas petition, which the district court denied. Pietri filed an application
for a certificate of appealability (“COA”), which the district court granted.
II. ISSUES
1. Whether the district court properly denied Pietri relief on his claims of
ineffective assistance of counsel at the guilt phase.
2. Whether the district court properly denied Pietri relief on his claim that
counsel failed to investigate and present more detailed mitigation evidence at the
penalty phase.
3. Whether the district court properly determined that Pietri’s claim of
ineffective assistance of appellate counsel for failure to challenge the trial court’s
impartiality was barred from federal review.
III. STANDARDS OF REVIEW
“When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). Under
the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), “our review is
greatly circumscribed and is highly deferential to the state courts.” Crawford v.
Head, 311 F.3d 1288, 1295 (11th Cir. 2002). We presume that state court factual
5
findings are correct unless the petitioner rebuts that presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). A federal court may not grant
habeas relief unless the decision of the state court either was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States [or] was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Id. § 2254(d). The petitioner must show that the state
court applied federal law to the facts of his case in an objectively unreasonable
manner. Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357, 360 (2002). “[A]n
unreasonable application of federal law is different from an incorrect application
of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522
(2000).
“An ineffective assistance of counsel claim is a mixed question of law and
fact that the court reviews de novo.” Jones v. Campbell, 436 F.3d 1285, 1292 (11th
Cir. 2006). To establish a claim of ineffective assistance of counsel, the petitioner
must establish that (1) “counsel’s representation fell below an objective standard of
reasonableness” and (2) “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068
6
(1984). In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003), the Supreme
Court reiterated that the clearly established federal precedent for evaluating
ineffective assistance of counsel claims is found in Strickland. Id. at 521, 123 S.
Ct. at 2535. The Court further noted:
[W]e emphasize that Strickland does not require counsel to investigate
every conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing. Nor does
Strickland require defense counsel to present mitigating evidence at
sentencing in every case. . . . We base our conclusion on the much
more limited principle that ‘strategic choices made after less than
complete investigation are reasonable’ only to the extent that
‘reasonable professional judgments support the limitations on
investigation.’ A decision not to investigate thus ‘must be directly
assessed for reasonableness in all the circumstances.’
Id. at 533, 123 S. Ct. at 2541 (quoting Strickland, 466 U.S. at 689– 91, 104 S. Ct.
2065–66).
We review de novo the district court’s determination that Pietri’s claim of
ineffective assistance of appellate counsel is barred from federal habeas review
because it was not properly exhausted. See Mize v. Hall, 532 F.3d 1184, 1190
(11th Cir. 2008).
IV. DISCUSSION
A. Ineffective Assistance of Counsel at the Guilt Stage
7
Pietri contends that his trial counsel, Peter Birch and Donnie Murrell, were
ineffective because they failed to investigate and proffer an intoxication defense
based on his extensive drug use that would have shown that he did not have the
requisite intent to commit first degree murder. Pietri raised this claim in his post-
conviction motion, and the trial court denied relief after an evidentiary hearing.
During the hearing, Pietri proffered evidence from several expert witnesses
regarding his alleged intoxication. Dr. Jonathan Lipman, a neuropharmacologist1,
testified that he could speak about Pietri’s state of mind only in
neuropharmalogical terms. (R. Vol. 49, p. 1032; Vol. 50, p. 1105.) Dr. Lipman
opined that at the time of the crime, cocaine toxicity was still present in Pietri’s
bloodstream, meaning that Pietri still craved the drug and was going through a
withdrawal process at the time of the shooting. (R. Vol. 50, p. 1009–1010.) Dr.
Lipman concluded that Pietri was suffering from “metabolic intoxication” which
means that he had poor impulse control and his brain chemistry was not normal.
(Id. at 1113.) Dr. Lipman testified that the evidence was consistent with an
impulsive act, not a specific intent to perform the act. (Id. at 1116.)
1
This is an individual who studies the properties and reactions of a drug on and in the
nervous system.
8
Dr. Harry Krop, a clinical psychologist, testified at the hearing that he
reviewed several doctors’ depositions, the police interview, the trial court’s order,
Dr. Iodice’s testimony, Dr. Caddy’s penalty-phase testimony, the medical
examiner’s deposition, the correctional facility’s psychological screening report,
and Dr. Goldberg’s deposition. (R. Vol. 49, p. 988– 91.) He opined that if he had
testified at the penalty phase, he would have stated that Pietri was most likely
intoxicated to some degree at the time of the offense. (Id. at 993–94.) His primary
diagnosis would be that the chronic effects of long term substance abuse had
rendered Pietri’s “capacity to conform his conduct to the requirements of the law . .
. significantly impaired.” (Id. at 1000.)
Dr. Glen Caddy, a clinical and forensic psychologist, testified that Pietri’s
trial counsel hired him to examine aspects of Pietri’s functioning. (R. Vol. 50, p.
1183.) Dr. Caddy conducted a background investigation of Pietri’s development
history and spoke to several family members. Dr. Caddy stated that he knew that
trial counsel would ask him to provide information relevant to any mitigating
considerations, and he would have been prepared to opine that Pietri was under
extreme mental or emotional disturbance at the time of the crime. (Vol. 51, p.
1226–27.) Dr. Caddy confirmed the veracity of the testimony he had given during
the penalty phase of Pietri’s trial. (Id. at 1246.) Dr. Faye Sultan, a clinical
9
psychologist, who met with Pietri several times in 2001, testified during the
hearing that Pietri suffered actual brain injury as a result of childhood sexual abuse
and that he had a diagnosable personality disorder. (R. Vol. 51. p. 1254–1308.)
Pietri’s trial counsel also testified at the evidentiary hearing regarding the
presentation of an intoxication defense. The trial counsel admitted that they
considered the defense, but because there was no evidence of Pietri’s actual drug
intoxication at the time of the crime, they decided to rely on the lack of intent
defense. (R. Vol. 47, p. 646; Vol. 48, p. 751–53, 813.) Peter Birch stated that at
the time he did not think a jury would accept intoxication as a defense, even if they
had the evidence to prove it, for killing a police officer. (Vol. 47, p. 645, 663.)
Because there was no evidence to support the defense and counsel did not believe
the intoxication defense was a strong one, they opted to proffer the lack of intent
defense by arguing that Pietri was trying to secure more cocaine and acted
impulsively when he shot Officer Chappell. Peter Birch testified that he spent
much effort in securing a plea agreement, which they had until the night before
trial. (Id. at 692.) Birch was convinced that the case was a second degree murder
case because there was no premeditation. (Id. at 714–15.) He acknowledged that
they presented evidence of cocaine to negate the premeditation by showing that
10
Pietri was thinking about getting more cocaine, not about shooting the police
officer. (Id. at 718–19.)
Following the evidentiary hearing, the state trial court rejected Pietri’s
request for post-conviction relief. Pietri appealed to the Florida Supreme Court.
On appeal, the Florida Supreme Court set forth the requirements enunciated in
Strickland for a petitioner to succeed on a claim of ineffective assistance of
counsel. Pietri, 885 So. 2d at 251–52. The appellate court then analyzed the claim
under the parameters of Strickland and denied relief:
In his first claim, Pietri argues that his trial counsel were
ineffective for failing to investigate and present a voluntary
intoxication defense, and that if they had performed effectively, it
could have been demonstrated that due to Pietri’s intoxication, he
lacked the requisite specific intent to commit the murder. Pietri’s
claim must fail, however, because Pietri did not present any evidence
at the postconviction evidentiary hearing to demonstrate that he was in
fact intoxicated at the time of the offense. Furthermore, he did not
present any competent evidence proving his inability to form the
specific intent to commit the crime. Pietri relies upon the theory that
as a result of his persistent use of cocaine on the days prior to the
crime he was in a state of “metabolic intoxication” at the time of the
offense and, therefore, could not have formed the requisite specific
intent. This Court has consistently rejected this theory, holding that
evidence of “metabolic intoxication” is not admissible at trial.
Because counsel cannot have been ineffective for failing to present
inadmissible evidence, Pietri’s first claim is denied.
Id. at 252.
11
The court then recognized that Pietri was not asserting that he was actually
intoxicated at the time of the offense, and his own expert did not opine that Pietri
was intoxicated when he shot the officer. Rather, the court noted, Pietri was
asserting that his chronic drug abuse had a lasting impact, and that while he had
little to no cocaine in his bloodstream at the time of the offense, he was under the
effects of the cocaine to the same extent as if he was legally intoxicated. Id. at 253.
The court noted that Pietri presented a total of five mental health experts at the
evidentiary hearing to support his assertion:
Dr. Lipman was the only expert who explicitly expressed the opinion
that Pietri lacked the specific intent to commit murder. Similar to Dr.
Lipman’s testimony, Dr. Krop, a clinical psychologist, testified that
had he been called to offer his opinion, he would have explained that
Pietri had a history of substance abuse and that he was either actively
intoxicated or withdrawing from substances at the time of the offense.
He would have testified concerning the effects of cocaine and how
extensive use of the drug can cause individuals to have problems with
judgment and impulse control, and how the drug can cause them to
become paranoid and hypervigilant. Dr. Krop did not, however, offer
any opinion regarding Pietri’s ability to form the specific intent to
commit the offense. A third expert, Dr. Caddy, testified that he could
not give an exact opinion regarding what impact the cocaine had on
Pietri at the time of the offense. He believes Pietri was in withdrawal
and had reactive judgment problems. Dr. Caddy stated that he could
not rule out the possible significance of a cocaine intoxication state
which triggered Pietri into doing something he would not have
otherwise done. The two remaining mental health experts offered no
opinion regarding Pietri’s mental state at the time of the offense, and
one doctor, Dr. Goldberg, specifically noted that he never talked with
Pietri about such subject. The one mental health expert presented by
12
the State testified that based upon Pietri’s ability to clearly recall the
events of the crime, Pietri was able to form the specific intent to
commit the offense.
While Pietri presented several witnesses at the evidentiary
hearing who testified concerning his extensive drug use both
historically and during the four days immediately preceding the crime,
Pietri did not present any competent evidence demonstrating that he
was actually intoxicated at the time of the offense. Notably, it is
unlikely that there is any one who could assert that Pietri was
intoxicated at the time of the offense or could even provide an opinion
regarding Pietri’s mental state at the time of the offense as Pietri
himself testified during the guilt phase that he was alone at the time of
the crime and for several hours preceding the fatal event.
Pietri has failed to demonstrate that his trial counsel provided
deficient performance. The only witness presented at the evidentiary
hearing who provided an opinion regarding Pietri’s inability to form
the specific intent required for first-degree premeditated murder was
Dr. Lipman. However, even if Pietri’s trial counsel had called Dr.
Lipman to testify at trial, because Pietri has failed to demonstrate that
he was actually intoxicated at the time of the offense, and, in fact,
actually presented testimony to the contrary, it is unquestionable that
the testimony of Dr. Lipman would have been inadmissible.
Although this Court has repeatedly held that evidence of
voluntary intoxication is admissible to prove the defendant lacked the
specific intent to commit premeditated murder, see Spencer v. State,
842 So. 2d 52, 63 (Fla. 2003); Chestnut v. State, 538 So. 2d 820, 822
(Fla. 1989), we have further held that “there are limitations regarding
the admissibility of evidence of mental disease or defect within the
defense of voluntary intoxication.” Spencer, 842 So. 2d at 63. . . . It
is unquestionable that at the time of Pietri’s trial, diminished capacity
was not a cognizable defense in Florida. See Chestnut, 538 So. 2d at
825. In Chestnut, we held that evidence of an abnormal mental
condition not constituting legal insanity is not admissible for the
purpose of proving that the defendant could not or did not entertain
13
the specific intent necessary for proof of the offense. See id. at 820.
Pietri essentially asserts that evidence could have been presented, not
to show that he was legally insane or voluntarily intoxicated, but
instead that his prior drug abuse resulted in a mental defect
–“metabolic intoxication”– a diminished capacity which produced an
inability to form the specific intent to commit premeditated murder.
Such evidence was inadmissible.
Id. at 885 So. 2d at 253–55. The court concluded that because Pietri could not
demonstrate that he was intoxicated at the time of the murder and the evidence of
metabolic intoxication would not have been admissible at trial, Pietri’s counsel
were not ineffective. Id. at 255.
We conclude from the record that Pietri cannot meet his burden of showing
that the state court’s rejection of his claim of ineffective assistance of counsel was
contrary to Strickland. The record indicates that at no time did anyone testify that
Pietri did not form the specific intent to commit the murder, and Pietri did not show
that he was intoxicated at the time of the murder. Pietri’s trial counsel testified at
his evidentiary hearing that they had considered presenting an intoxication defense,
but decided against using it when they realized there was no evidence showing that
Pietri was intoxicated at the time of the offense. (R. Vol. 47, p. 646; Vol. 48, p.
751– 53, 813.) Thus, the state appellate court’s finding that trial counsel were not
ineffective because they did not proffer a defense they could not support, was
neither contrary to, nor an unreasonable application of, Strickland. Pietri is not
14
entitled to relief on this claim. See Powell v. Allen, 602 F.3d 1263, 1275 (11th Cir.
2010) (rejecting claim of ineffectiveness for not raising an intoxication defense
where defendant failed to come forward with supporting evidence on collateral
review), cert. denied, 131 S. Ct. 1002 (2011). Furthermore, both counsel testified
that even if the evidence supported an intoxication defense, they would not have
proffered it because, based on their experience, it was not successful among jurors.
The state appellate court also found that Pietri’s “metabolic intoxication”
defense was not cognizable under Florida law at the time of Pietri’s trial. A state
supreme court’s interpretation of its law is binding on federal courts. See Mullaney
v. Wilbur, 421 U.S. 684, 690–91, 95 S. Ct. 1881, 1885–86 (1975). Because this
defense was not viable under state law at the time of Pietri’s trial, his counsel
cannot be deemed ineffective for failing to proffer it. See Michael v. Crosby, 430
F.3d 1310, 1321–22 (11th Cir. 2005) (holding that counsel was not ineffective for
failing to pursue a theory of defense that was not cognizable under Florida law).
Even if Pietri could show that his counsel were ineffective for failing to
proffer a voluntary intoxication defense, Pietri could not demonstrate that their
deficient performance prejudiced him. We have commented that detailed evidence
of extensive drug abuse can be “a two-edged sword.” Housel v. Head, 238 F.3d
1289, 1296 (11th Cir. 2001) (citation omitted). This evidence may have had a
15
counter-productive effect on the jury, and counsel testified at the post-conviction
evidentiary hearing that it was generally not a successful defense. Pietri cannot
satisfy the two requirements set forth in Strickland, and, therefore, he is not entitled
to relief on this claim of ineffective assistance of counsel.
B. Ineffective Assistance of Counsel at the Penalty Stage
Pietri claims that his counsel were ineffective at the penalty phase for failing
to investigate and present mitigating evidence of his low IQ, brain damage,
childhood sexual and physical abuse, and cocaine addiction. Pietri asserts that
because his counsels’ deficient performance prejudiced his sentence, the state
court’s disposition of this claim was an unreasonable application of Strickland and
Wiggins.
In reviewing this claim, we consider the testimony of the eight witnesses that
defense counsel did present during the penalty phase of Pietri’s trial. Pietri’s older
brother, William Pietri, testified that their father was a violent man, an alcoholic
who beat their mother and abandoned the family when petitioner was very young.
(R. Vol. 19, p. 2826–37; Vol I. Penalty phase, p. 38–48.) William stated that Pietri
was a “very nice kid” before he became involved with drugs. (Id. at 2834; Vol. I at
45.) Another brother, Marino Pietri, testified that his parents had nine children
from their union, and the entire family lived together in one house that had only
16
two bedrooms, a living room, and a kitchen. (Id. at 2849–87; Vol. I at 60– 98.) The
house did not have running water, an indoor bathroom, or television. Marino
corroborated William’s testimony about their father’s alcoholism, physical and
psychological abuse to family members, and abandonment. Marino explained that
Pietri had a cross-eye condition and had surgery to correct the problem, but the
surgery caused him to be blind in his right eye. Marino stated that Pietri worked
with him for several years in the landscape business, but then Pietri started using
drugs and was no longer a good worker.
Defense counsel also presented Pietri’s sisters, Ramona Rivera and Ada
Serrano Liddell, as witnesses. (Id. at 2888–96; Vol. I at 99–107 and Id. at
2901–11; Vol. II Penalty phase, p. 112–22.) Both testified that Pietri was a fun
person and a nice brother, who changed substantially after he began using cocaine.
Roger Paul, a minister who met with Pietri while he was incarcerated, testified that
Pietri had undergone a religious transformation which led him to admit to his crime
and express remorse for his crime. (Id. at 2912–25; Vol. II at 123–36.) The defense
also presented Yoris Santana, who was with Pietri during the days immediately
prior to the murder, after Pietri escaped from prison. (Id. at 2838–46; Vol. I,
49–57.) Santana explained that during the days preceding the murder, Pietri was
involved in heavy drug use, specifically “rock cocaine.” Santana testified that
17
Pietri used cocaine “24/7” and had problems when he was high on drugs. (Id. at
2839; Vol. I at 50.)
Defense counsel also presented the testimony of two experts at the penalty
phase. Jody Iodice, a social worker and former drug addict who worked
extensively with drug addicts, explained the effects of cocaine, the type of people
more likely to become addicted to drugs, the “crash” that occurs following the use
of drugs, the length of the crash symptoms, the “down phase” after cocaine use, and
the length of the “down phase.” (Id. at 2925–52; Vol. II, p. 136–63.) However,
she also explained that drug use does not impair intellect and does not impair the
ability to make cognitive decisions. (Id. at 2944; Vol. II at 155.) Ms. Iodice also
stated that the drug use may alter a person’s priorities, but the person can still
distinguish between right and wrong. (Id. at 2945; Vol. II at 156.) Defense
counsel did elicit from Ms. Iodice the fact that people on drugs do not anticipate
the consequences of their actions, and their actions are produced by pure impulse.
She also acknowledged that cocaine does alter one’s judgment, and that for people
on drugs, everything is based on their drive to obtain the drug. (Id.)
The defense also presented the testimony of Dr. Glen Caddy, a mental health
expert, who explained that he had consulted with Pietri prior to his testimony, had
conducted a mental status exam, and had obtained a personal history on Pietri. (Id.
18
at 2952–3024; Vol. II p. 163–236.) Dr. Caddy opined that Pietri had a very chaotic
and tragic childhood, and his family life lacked structure and limitations. Dr.
Caddy’s examination of Pietri’s history revealed that he had an eye condition that
resulted in the loss of sight in his right eye; his father was often drunk and very
abusive; his father beat his mother almost daily in the presence of the children; his
father also exhibited violence toward the children; he was sexually abused for
about two years by a man who lived with the family; and his mother was totally
ineffective as a parent. Dr. Caddy testified that around the age of 13, Pietri began
engaging in aberrant behavior, and by the age of 14, he had already become very
vulnerable to drug use, abuse, and addiction. Dr. Caddy noted that Pietri dropped
out of school when he was sixteen, used drugs and drank excessively, then pulled
himself together for a brief period before he entered the world of cocaine. Pietri
began to commit crimes to support his drug habit. Dr. Caddy explained that
Pietri’s incarceration period was just a “time-out” from drug addiction. (Id. at
2984; Vol. II at 196.)
Dr. Caddy explained the effects of drug addiction and noted that during the
withdrawal period, a drug addict overreacts to stimuli. The addict may experience
a general sense of confusion and a high stress level. Dr. Caddy opined that on the
day of the offense, Pietri was still experiencing the residual effects of having
19
ingested cocaine for the prior three or four days. (Id. at 2989–90; Vol. II at
201–02.) He explained that Pietri’s main focus around the time of the murder was
to acquire more cocaine, and his judgment would have been impaired. Dr. Caddy
also recounted the events Pietri had related to him concerning the offense—that
Pietri had become frightened when he was aware that a police officer was
following him, and as he stuffed stolen jewelry into his pocket, he felt the gun,
picked it up and fired at the officer. Dr. Caddy opined that Pietri’s conduct was
simply a reaction, which is consistent with someone who uses cocaine heavily. (Id.
at 2994–95; Vol. II at 206– 07.)
Despite the defense testimony presented during the sentencing phase of his
trial, Pietri claims that his counsel could have and should have done more to
investigate and present mitigation evidence. At his evidentiary hearing, Pietri
presented expert and counsel testimony to elaborate on the mitigation evidence that
he alleges counsel failed to present at the sentencing phase.
Dr. Jonathan Lipman testified that had he been called during the penalty
phase, he would have opined that Pietri was under the influence of an extreme
mental or emotional disturbance at the time of the crime. In his opinion, Pietri
could appreciate the criminality of his conduct, but his ability to conform his
behavior to the requirements of the law was impaired. (R. Vol. 50, p. 1104.) Dr.
20
Lipman concluded, based upon his evaluation of Pietri and Pietri’s extensive drug
use, that Pietri did have an organic mental disorder caused by his toxic condition at
the time of the offense. (Id. at 1151.) Dr. Glen Caddy stated that the opinions and
conclusions he proffered at the penalty phase had not changed. (R. Vol. 51, p.
1246.) He acknowledged that he could not testify that Pietri’s mental state at the
time of the crime was extremely impaired nor could he testify that Pietri was unable
to appreciate the criminality of his conduct. (Id. at 1226–28.) Dr. Harry Krop
testified and conceded that much of the information he provided during the
evidentiary hearing was the same as that covered by Dr. Glen Caddy during his
penalty phase testimony. (R. Vol. 49, p. 970–1031.)
Dr. Faye Sultan also testified and described, in detail, Pietri’s recollections
of being sexually abused as a child. (R. Vol. 51, p. 1254–1308.) Dr. Sultan opined
that a person who has been sexually abused is more likely to become an early
abuser of drugs and alcohol. She also opined that a sexual abuse victim would
have difficultly regulating his emotions and would be more likely to experience the
severe effects of any chemical he used. Dr. Sultan conceded that Dr. Caddy’s
findings were consistent with her opinion. The last mental health expert to testify
was Dr. Goldberg, who conducted a battery of psychological tests on Pietri and
concluded that Pietri’s IQ is 76, which places him in the mildly impaired range.
21
(R. Vol. 53, p. 1495– 1705.) He opined that Pietri’s cognitive impairments are due
to cerebral dysfunction. When asked if Pietri satisfied any of the mental health
mitigating factors listed in the statute, he responded that Pietri satisfied only the
“catchall criteria.” See Fla. Stat. § 921.141(6) (h) (2010). (Id. at 1522.)
Peter Birch, Pietri’s penalty-phase counsel, testified at the evidentiary
hearing that he focused more time on the guilt phase of Pietri’s trial in an attempt to
secure an advantageous plea agreement. One week before trial began, Birch
believed that the trial would not start because there was a written, signed plea
agreement between Pietri and the State. (R. Vol. 47 p. 692.) Birch also stated that
he attempted to secure a mental health expert for the penalty phase and finally had
Dr. Krop appointed about one month before the scheduled trial. After Dr. Krop
evaluated Pietri, he advised Birch that in his opinion, Pietri was competent to
proceed and was sane at the time of the offense. (Id. at 624–29.) Dr. Krop also
advised Birch that Pietri had no psychiatric history or evidence of any psychotic
process disturbance or organic disorder. Dr. Krop did report that Pietri had a
history of substance abuse and possible physical and sexual abuse. Birch stated
that he was disappointed in Dr. Krop’s opinion and decided that he would not use
Krop as an expert at the penalty phase because he would have been of little
assistance. (Id. at 629.)
22
After unsuccessfully soliciting the assistance of Dr. Krop, Birch testified that
he contacted another mental health professional, Dr. Haynes. Birch consulted with
Dr. Haynes several times, then he and his co-counsel Donnie Murrell decided that
Dr. Haynes would not be helpful. (Id. at 669–70.) Birch recalled talking to other
mental health experts after Dr. Haynes, and five days before the penalty phase
began, secured the assistance of Dr. Caddy. Birch acknowledged that the defense
had a lot of evidence to support non-statutory mitigation. (Id. at 676.)
The state appellate court rejected Pietri’s contentions that his penalty-phase
counsel were ineffective. Based on Peter Birch’s testimony, the Florida Supreme
Court concluded that Pietri failed to demonstrate that his counsel were deficient in
securing a mental health expert.
Although counsel was admittedly not focused on the penalty phase
from the outset or in the months prior to the start of the guilt phase
trial, the record clearly reflects that counsel began attempts to secure a
mental health expert well before the penalty phase began. There was
evidence of clear justification for not utilizing Dr. Krop as a witness, .
. . and counsel subsequently contacted at least four experts before
finally locating one who could offer assistance. . . .While there is no
claim here that Pietri was uncooperative, the record does reflect that at
least one of the mental health experts contacted by defense counsel,
Dr. Haynes, was unwilling to testify. Here we do not even have
deficient results because the evidence ultimately presented at trial
encompassed the material for which Pietri now asserts fault with
counsel.
23
Pietri, 885 So. 2d at 263-64. The court then concluded that even if counsel were
deficient in their attempts to secure a mental health expert, it was clear that Pietri
failed to demonstrate that he suffered prejudice as a result of the alleged
ineffectiveness. The Florida Supreme Court noted that none of the experts who
testified at the evidentiary hearing claimed any inadequacies in either Dr. Caddy or
Jody Iodice’s penalty-phase testimony. Id. at 266. In fact, Dr. Krop and Dr. Sultan
acknowledged that their testimony was consistent with Dr. Caddy’s penalty-stage
testimony. Because the jury was presented with identical evidence of the effects of
Pietri’s drug usage at the penalty stage, the appellate court concluded that there was
no probability that the additional evidence presented at the evidentiary hearing
would have changed the outcome of the sentence. Id.
We agree with the Florida Supreme Court that Pietri cannot show that his
penalty-phase counsel were unconstitutionally ineffective. Pietri cannot
demonstrate that the state court unreasonably applied Strickland to the facts of his
case. The state court reviewed the testimony presented at both the penalty phase
and the post-conviction hearing. It noted that trial counsel made numerous
attempts to secure a mental health expert and strategically decided not to present
some of the mental health experts they consulted. Additionally, the state appellate
court found that the penalty-phase jury was presented with identical evidence of the
24
effects of long-term or continuous drug use that Pietri presented at the collateral
hearing. Thus, the state appellate court determined that counsel did not provide
constitutionally deficient performance, but even if they did, there was no
reasonable likelihood that the result of Pietri’s sentencing would have been
different based on this additional information. Pietri has not satisfied his burden of
showing that the state court applied Strickland to his case in an objectively
unreasonable manner. See Woodford, 537 U.S. at 25, 123 S. Ct. at 360.
Accordingly, we affirm the district court’s order denying Pietri relief on this claim
of ineffective assistance of counsel.
C. Ineffective Assistance of Appellate Counsel
Pietri contends that the district court erred in finding unexhausted his claim
that appellate counsel failed to object to the trial court’s judicial bias. Pietri asserts
that he preserved the issue in state court and that the district court therefore erred in
dismissing the claim.
In his amended post-conviction petition pursuant to Florida Rules of
Criminal Procedure Rule 3.850, Pietri argued that his Eighth Amendment right was
violated by the sentencing court’s refusal to find and/or consider the mitigating
circumstances set out clearly in the record. Elaborating on this argument, Pietri
stated that he presented evidence of mitigation, such as his extreme poverty during
25
childhood, the physical and sexual abuse he endured as a young person, and his
drug and alcohol addiction. He concluded by positing that his death sentence was
arbitrary and capricious because the sentencing court did not properly weigh the
aggravating and mitigating circumstances. In this same petition, Pietri also argued
that he was denied his right to a fair trial and sentencing before an impartial judge
in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because
the sentencing court was biased in favor of the State. (Id. Claim XXXII, p. 109.)
Pietri stated that examples of the sentencing court’s bias included its failure to
grant Pietri’s motion for change of venue, its allowance of challenges for cause by
the State, its failure to grant Pietri a continuance of the sentencing phase, and its
failure to find any mitigation at sentencing. The trial court denied both of these
claims on procedural grounds.
On appeal from the trial court’s order denying him post-conviction relief,
Pietri argued that counsel was ineffective for failing to challenge the trial court’s
finding regarding mitigation. He claimed that the trial court adopted the State’s
findings in its post-evidentiary memorandum and incorporated them into its
sentencing order, thus denying him a full and fair tribunal under state law. Along
with his appeal from the trial court’s denial of his post-conviction motion, Pietri
filed a state habeas petition in which he claimed that appellate counsel was
26
ineffective for failing to challenge the trial court’s adverse ruling on the motion for
change of venue. On appeal, the Supreme Court of Florida denied Pietri post-
conviction and habeas relief. Pietri, 885 So. 2d at 276. The state appellate court
found no merit to Pietri’s claim that the trial court erred in incorporating the State’s
post-evidentiary hearing memorandum. Id. at 270. The appellate court found
procedurally barred Pietri’s state habeas claim that appellate counsel was
ineffective for failing to challenge the trial court’s ruling denying Pietri’s motion
for a change of venue. Id. at 273.
On appeal, Pietri contends that the district court erred in dismissing his claim
that appellate counsel failed to challenge the trial court’s impartiality because he
exhausted the substantive claim of judicial bias. However, contrary to Pietri’s
contention, he did not preserve the substantive judicial bias claim because he did
not present the claim to the Supreme Court of Florida. See O’Sullivan v. Boerckel,
526 U.S. 838, 842–45, 119 S. Ct. 1728, 1731–33 (1999) (holding that in order for a
claim to be exhausted, the petitioner must invoke one complete round of the State’s
established appellate review process). Furthermore, Pietri’s assertion of a
substantive judicial bias claim in state post-conviction proceedings is not sufficient
to preserve his claim of ineffective assistance of appellate counsel for failing to
raise the substantive claim. These claims are separate and distinct. See LeCroy v.
27
Sec’y for Fla. Dep’t of Corr., 421 F.3d 1237, 1260 n.24 (11th Cir. 2005) (noting
that substantive claim was “separate and distinct” from ineffective assistance claim
based on the substantive claim). Because he never raised this specific claim of
ineffectiveness, the district court properly dismissed it. See 28 U.S.C. §
2254(b)(1); Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343–44 (11th Cir.
2004) (noting that petitioners may not present particular factual instances of
ineffective assistance of counsel in their federal petition if they did not first raise
them in the state courts). Accordingly, the district court properly dismissed as
unexhausted the ineffectiveness of appellate counsel claim.
V. CONCLUSION
The district court did not err in denying Pietri habeas relief. Accordingly, we
affirm the district court’s judgment.
AFFIRMED.
28