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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14248
________________________
D.C. Docket No. 3:01-cv-01399-HES-JRK
ERNEST CHARLES DOWNS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 5, 2013)
Before HULL, MARCUS and WILSON, Circuit Judges.
HULL, Circuit Judge:
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Ernest Downs, a Florida death row inmate, appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition. This appeal involves only the guilt
phase of Downs’s trial. Downs argues that his convictions for first degree murder
and conspiracy to commit first degree murder were obtained in violation of the
Constitution because (1) the State withheld exculpatory evidence prior to his trial,
(2) his trial counsel labored under a conflict of interest due to a contingency fee
agreement, and (3) his trial counsel rendered ineffective assistance by failing to
call certain witnesses during the guilt phase. After review and oral argument, we
conclude that Downs has not shown that the Florida state courts’ decisions are
contrary to or an unreasonable application of clearly established federal law. We
thus affirm the district court’s denial of Downs’s § 2254 petition.
I. DOWNS’S TRIAL
On August 4, 1977, a Florida grand jury indicted Ernest Downs on two
counts: (1) first-degree murder of Forrest J. (“Jerry”) Harris, Jr., and (2) conspiracy
to commit first degree murder of Harris. The State charged that John Barfield
hired Downs to kill Harris for $5,000, and that Downs recruited Larry Johnson to
help with the murder. Downs retained attorney Richard Brown to represent him.
Downs proceeded to a jury trial on the murder and conspiracy charges. The
guilt and innocence phase of this trial lasted from Wednesday, December 14
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through Friday, December16, 1977. In this murder-for-hire case, Downs’s co-
conspirator Johnson was the State’s main witness.
A. Johnson’s Trial Testimony
Johnson testified that, in April 1977, he met with Downs, Barfield, and a
man named Gerry Sapp to discuss killing Harris. On the day of the murder, April
23, 1977, Downs told Johnson that Harris was expecting a call from someone
named Joe Green to discuss transporting some contraband. That afternoon,
Johnson and Downs drove in Downs’s pickup truck to the Baymeadows area in
Jacksonville, Florida, where the killing was supposed to occur. They went to a
phone booth to call Harris for the purpose of luring him out. At that point, Johnson
told Downs to “forget killing” Harris, but Downs insisted that Johnson make the
call. Johnson complied and called Harris, identifying himself as Joseph Green. A
woman answered the phone and said that Harris would be back shortly.
Downs and Johnson then drove by Harris’s apartment, and when they saw
Harris arrive, they went back to the phone booth. Johnson testified that he again
expressed his unwillingness to proceed with the murder, but Downs became
“edgy” and insisted that Johnson call Harris. Johnson once more called Harris, and
this time Harris answered the phone. Johnson identified himself as Joe Green and
told Harris that he wanted to meet him at a nearby lounge to “talk some business.”
Johnson testified that, after the call, he told Downs that he was not going to
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proceed with the murder, and, if Downs wanted to kill Harris, he (Downs) would
have to do it alone. Downs became “really angry” and insisted that Johnson get in
the truck with him. Johnson complied and got in the truck because he feared that
Downs might shoot him, but again told Downs that he was not going to kill Harris.
Downs “got really mad at that point, jerked the truck in gear,” and instead of going
to the lounge, drove down to the end of a nearby dirt road. Downs then told
Johnson to get out of the truck, threw him a .45 caliber machine gun, told him to
stay put, and drove off.
Johnson testified that, when left alone, he hid the machine gun under “some
boards” because he had no intention of using it. Then he waited. After some time,
Downs came back in the truck with Harris. Harris stepped out of the truck, walked
up to Johnson, and introduced himself. Johnson, who was “kind of numb at this
point,” introduced himself as Johnson, not Joe Green. Harris stepped back and
looked at Johnson “kind of funny.” As Johnson began to explain that he used an
alias, Downs took out a .25 caliber pistol and fired four shots at Harris.
Johnson described the shooting as follows:
[Downs] brought up the .25 automatic and fired at him. . . . [After the
first shot, Downs] kind of jumped up in the air and come down
backwards a few feet and almost stumbled and fell down. He righted
himself and fired three more times still stumbling backwards.
[Downs] fell into the side of the truck . . . and fired three more times
at him, and then he stumbled backwards and went completely around
behind the truck out of my sight.
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Harris staggered back and fell down in front of Johnson. Downs then “came out
from behind the truck and ran around front and leaped over Jerry Harris, and
Harris’s head was off the ground.” Downs “stuck the gun up to the right side of
[Harris’s] head and fired again point-blank,” at which point “Harris laid down.”
Johnson testified that he and Downs dragged Harris’s body into the woods
behind the dirt road. They removed car keys, identification, and some cash from
Harris’s pockets. Downs took the identification, Johnson pocketed the money, and
they threw away the car keys. Downs then fired one more bullet into Harris’s
chest.
Downs and Johnson drove away from the scene, but returned to pick up the
the machine gun and to drag Harris’s body further into the woods. Afterwards, on
the way home, Johnson threw the .25 pistol off a bridge into a river.
Johnson testified that the day after the murder, he and Downs visited
Barfield. Downs showed Harris’s driver’s license to Barfield, told Barfield that the
job was completed, and demanded payment. Barfield assured Johnson and Downs
that he would have their money within several days. Barfield eventually gave cash
to Downs in payment for the killing, and Downs gave Johnson a Corvette.
Having received payment, Johnson and Downs traveled to the Florida Keys,
Mexico, Texas, and Alabama for several weeks. Johnson testified that he did not
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inform the authorities about the murder at this time because he “was afraid that
[Downs] may get revenge on me or my family or something,” and “was afraid of
being arrested for the murder myself.”
Downs stayed in Alabama, but Johnson returned to Jacksonville in late July
of 1977, more than three months after the Harris murder. Johnson talked about the
murder to Downs’s sister, Darlene Perry, who was also Johnson’s girlfriend.
Johnson also talked to Downs’s grandfather. Johnson then contacted Detective Jim
Spaulding, told him about the murder, and led law enforcement to Harris’s body.
In exchange, Johnson obtained full immunity from prosecution.
On cross-examination, Johnson admitted that his immunity would be
revoked if he testified that he had killed Harris. His immunity would also be
revoked if he did not tell the truth.
B. Sapp’s Trial Testimony
Another witness, Gerry Sapp, described how Barfield hired Downs to kill
Harris. Sapp testified that, when he was riding with Barfield to Downs’s house,
Barfield told Sapp that he (Barfield) was going to ask Downs to kill Harris.
Barfield told Sapp that he “didn’t know Larry Johnson too good,” did not trust
Johnson, and would not ask Johnson to kill Harris.
When Sapp and Barfield arrived at Downs’s house, Downs and Johnson
were inside the garage working on a truck. Barfield called Downs outside, and
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they walked behind the house and talked for a few minutes. When Barfield and
Downs returned, Downs told Johnson that he was going to kill a man for $5,000.
Downs also said that he wanted to be paid immediately after the murder, “with no
questions asked.” When Barfield asked how he would know that Harris was killed,
Downs said that he would bring back proof of the killing, like a driver’s license.
C. Detective Spaulding’s Trial Testimony
Detective Spaulding testified that he met Johnson in August 1977, and
Johnson directed him to Harris’s body. Spaulding eventually arrested Downs in
Alabama. In a post-arrest interview, Downs told Spaulding that he (Downs) “had
contacted the Mobile, Alabama F.B.I. office and asked them to contact the
Jacksonville F.B.I. office in reference to the Jerry Harris case.” Before Downs
made this statement, Spaulding did not tell Downs why he (Spaulding) was in
Alabama, did not tell Downs that Harris’s body was found, and did not even
mention Harris’s name.
In another post-arrest interview, Downs told Spaulding that he would tell
Spaulding “all [he] needed to know about the case” when they came back to
Jacksonville. Spaulding asked Downs if he was going to confess to Harris’s
murder, and Downs replied: “More than likely.” However, on cross-examination,
Spaulding admitted that Downs also denied murdering Harris on multiple
occasions during his post-arrest interviews.
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D. Post-Trial Proceedings
When the State rested, the trial court asked attorney Brown if he was ready
to proceed with Downs’s defense. Brown responded: “Yes, Your Honor. Yes.
Just a moment, Your Honor.” At this point, the trial transcript reflects a “[b]rief
pause.” After the pause, Brown announced that the defense rested, and no more
witnesses were presented.
The jury convicted Downs on both counts: (1) first degree murder and (2)
conspiracy to commit first degree murder. On December 20, 1977, an advisory
sentencing hearing (the “penalty phase” of the trial) was held before a jury, after
which a “majority” of the jurors recommended a death sentence.1
At the final sentencing hearing, held on January 27, 1978, the state trial
court adopted the jury’s recommendation and sentenced Downs to death on the
first-degree-murder charge. The trial court also imposed a 30-year sentence on the
conspiracy charge.
On direct appeal, the Florida Supreme Court affirmed Downs’s convictions
and sentences. Downs v. State, 386 So. 2d 788 (Fla. 1980). The U.S. Supreme
Court denied certiorari. Downs v. Florida, 449 U.S. 976, 101 S. Ct. 387 (1980).
1
The State later noted that the jury’s recommendation of death was unanimous.
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II. DOWNS’S REQUEST FOR POST-CONVICTION RELIEF
A. Downs’s Initial Rule 3.850 Motion
In June 1982, Downs filed his first Rule 3.850 motion for post-conviction
relief in state court, raising numerous claims, three of which are pertinent to this
appeal. 2
First, Downs argued that his contingency fee agreement with counsel Brown
created a conflict of interest that deprived Downs of effective assistance of trial
counsel. In his retainer agreement with Brown, Downs agreed to pay Brown a
minimum fee of $5,000, and then $50 per hour. Additionally, Downs agreed to
pay a $10,000 “bonus fee” if he was “acquitted of all felony charges arising from
the death of Jerry Harris.” Downs contended that the prospect of a $10,000 bonus
may have prevented Brown from presenting crucial evidence for the defense.
Specifically, Brown had told Downs that putting on witnesses would mean losing
the conspiracy count. However, Downs actually might have benefited from
testifying and admitting to a limited participation in the conspiracy, thereby
possibly avoiding a murder conviction.
Second, Downs alleged that Brown rendered ineffective assistance at the
guilt/innocence phase by failing to call three defense witnesses: (1) Downs
2
Downs filed a second Rule 3.850 motion after his resentencing, but only his first 3.850
motion is relevant to this appeal.
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himself, who would have testified that he did not kill Harris; (2) Sharon Darlene
Perry, Downs’s sister and Johnson’s lover, who would have testified that Johnson
told her that he (Johnson) killed Harris; and (3) Downs’s grandmother, Bobbie Jo
Michael, who would have testified that Downs was at her house on the evening of
April 23, 1977, when Harris was shot.
Third, in a supplement to his Rule 3.850 motion, Downs alleged that the
State withheld material exculpatory evidence prior to trial, in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The alleged exculpatory evidence
consisted of, in pertinent part, Barfield’s recorded statements to a cellmate, Harry
Murray, wherein Barfield told Murray that Johnson had told Barfield that he
(Johnson) was actually the one who killed Harris.
An evidentiary hearing was held on Downs’s 3.850 motion in October
1982 and January 1983. At this hearing, the 3.850 court heard testimony from a
number of witnesses, including Downs himself, his trial counsel Brown, detective
Spaulding, and Barfield’s cellmate Murray.
B. Downs’s 3.850 Testimony
Downs testified about how he and his counsel Brown entered into the
contingency fee agreement. Downs stated:
I told Mr. Brown that I didn’t have no money. And he said, well, he
felt that he could have me acquitted of the first degree murder and
would I be willing to work and pay him $10,000 as a bonus for doing
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that? And he said that the following day I would be taken before
Judge [Dorothy] Pate, he would have me declared indigent, and that it
was a formality.
When Downs arrived in court, Judge Pate asked Brown how he could
represent Downs, given Downs’s indigent status. Brown told the judge that “it was
all a matter of contract and that it had been taken care of, that he knew that
[Downs] did not have any money, but he looked to get paid at a later date.”
Downs also testified about his discussions with Brown about whether to
testify and what witnesses to present. Specifically, Downs told Brown that he
wanted to testify. And Brown never told Downs, prior to the last day of trial, that
he (Brown) would not call Downs to testify. Nor did Brown explain to Downs
why he would not call Downs to testify.
Towards the end of November 1977, Downs informed Brown that he
(Downs) would testify that he was at his grandmother Michael’s house on the day
of the crime. Brown, however, advised Downs “not to say anything about that”
because Brown wanted to “spring” the alibi defense on the State at trial.
Furthermore, Brown did not tell Downs prior to trial that the defense would
rest without presenting witnesses, and Brown informed Downs of this decision
only after the State finished its case-in-chief. Downs testified that, when the State
rested,
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Mr. Brown stood up, and then he come there and he put his hand on
my shoulder and leaned down and he says, I can tell by looking at the
jury that they know that you didn't kill Harris. He said, now, my
concern at this point is the conspiracy charge. He said, If you want to
take the stand, you are going to have to admit conspiracy. He said,
And that carries up to a life sentence. He said So I'm advising you to
forget about the murder charge, and let’s focus on this conspiracy
charge, and let’s shoot for the best thing we can get out of it. He said,
Because all the other co-defendants have gotten off light. So, he said,
I see no reason for you to say anything at this point.
Brown also told Downs not to “worry about” having other witnesses testify for the
defense.
[Brown] said . . . we want to focus on this conspiracy thing. And . . .
if I don’t call no other witnesses, . . . then I’ll have opening and
closing arguments. And [Brown] informed me at that time to just let
the defense rest.
Downs testified that he “knew nothing about this [tactic] right up until the last
moment.”
Downs further testified regarding the events surrounding Harris’s murder.
Downs asserted that he did not kill Harris and was not present during the shooting.
Downs admitted, however, that Barfield approached him about the murder on April
18, 1977, when Barfield and some other men came to Downs’s house. Barfield
walked with Downs behind the house and told him that he (Barfield) “wanted an
individual killed for $5,000, and . . . would [Downs] approach Johnson to do it?”
Barfield explained that “he didn’t know [Johnson] that well right then,” but “knew
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that [Johnson] and [Downs] were real tight.” Downs assured Barfield that he
“would take care of it.”
Downs testified how he had been friends with Johnson for a long time, and
how Johnson had oftentimes exerted a bad influence on him, leading him to
commit crimes. During the time period leading up to Harris’s murder, Downs
employed Johnson in a construction business Downs owned.
Downs talked to Johnson about Barfield’s proposition, and Johnson agreed
to kill Harris. Downs testified that, on the afternoon of the murder, April 23, 1977,
“it became increasingly apparent that Johnson was going to go through with this
and it was no longer a game anymore.” At that time, Downs told Johnson to
“forget it,” but Johnson said he wanted the $5,000.
At approximately 7:00 p.m. that evening, Downs again told Johnson to
abandon the plan, but Johnson refused. Downs then told Johnson that “if he did it
he was on his own.” Johnson responded that he had already practiced shooting the
gun and “[f]igured out how he was going to do it.”
Downs then left Johnson and went to Michael’s (Downs’s grandmother’s)
house, arriving there around 7:30 p.m. At approximately 10:30 p.m., Johnson
came to Michael’s house in a black pickup truck, and told Downs that “he had
done it.” Downs noticed that “the rifle” (the .45 machine gun) was missing from
the truck, and asked Johnson where the rifle was. Johnson responded that he “got
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nervous with that rifle, and . . . drove down to the end of the road and put it under a
pile of wood.” Downs became scared that the police would find the rifle when
they found Harris’s body, and so Downs went with Johnson to the place of the
murder to retrieve the rifle. Afterwards, on the way home, Johnson threw the .25
caliber murder weapon off a bridge. When Downs and Johnson returned to
Downs’s house, they also disposed of Johnson’s clothing by throwing it in a creek.
Downs testified that his attorney Brown did not want to know Downs’s
version of the facts concerning Harris’s murder “because of the conspiracy
charge.” Brown only wanted to know what happened to the murder weapon.3
C. Attorney Brown’s 3.850 Testimony
Brown testified that the contingency fee agreement had no effect on his
representation. Brown received only about $40 of attorney’s fees from Downs.
However, the possibility of a $10,000 bonus did not affect his representation of
Downs in any way or at any time, and Brown did not consider the possible bonus
in making strategic decisions during the trial.
3
Downs testified that he told Brown he wanted to take a polygraph test, and even
borrowed $100 from his (Downs’s) mother for the purpose. Brown took the money, but kept
putting off the test until finally telling Downs that it “wasn’t necessary.”
Brown’s 3.850 testimony mostly agreed with Downs’s on this point. Brown testified that
Downs wanted to take a polygraph test, and Brown obtained $100 from Downs’s mother for the
test. However, Brown never used that $100 for the polygraph exam, but instead used the money
to cover other costs of the case. As a result, Brown was reprimanded by the Florida Bar
Association.
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Brown did hope to receive the $10,000 bonus when he first began
representing Downs, but subsequently “all hope of receiving that $10,000 and even
the minimum fee of $5,000 . . . pretty much faded.” Brown realized within the first
30 days or so of representing Downs that it “would take a miracle” to obtain an
acquittal on all felony charges. The “bonus” was out of Brown’s mind at the time
he began to try the case.
With regard to his ultimate decision not to present defense witnesses, Brown
testified that he first began seriously considering the question the night before the
last day of trial. Asked whether he thought about the issue prior to trial, Brown
responded: “It’s possible that I thought a little bit about it, but it didn’t really come
seriously into my consideration until that Thursday evening.” When Brown began
the trial on Wednesday, he was still planning to call witnesses, including Perry
(Downs’s sister) and Michael (Downs’s grandmother). Brown explained: “We had
a plan in advance of trial and it involved putting on witnesses. But the course of
the trial reshapes that plan. And it did in this particular case.” Brown testified that
he could not make a fully informed decision about what evidence to present until
immediately before the State rested. In fact, until the State rested, Brown did not
tell his defense witnesses that they were not needed.
Brown testified that he probably did not talk to Downs about his decision not
to present witnesses until the morning of the last day of the three-day trial. Brown
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testified that he talked to Downs about this decision both after the State rested and
earlier that day. When Brown raised the issue before the State rested, Downs
“didn’t demand” that Brown present a defense. After the State rested, Downs also
did not protest, or object to, Brown’s decision not to present witnesses.
Brown denied that he told Downs, after the State rested, that the jury knew
Downs did not kill Harris. Brown also denied telling Downs that presenting
defense witnesses would mean losing on the conspiracy count.
Brown testified in detail as to why he did not call Downs as a witness.
Brown stated that “[i]t became evident very early in the preparation for this case
that Mr. Downs could not take the witness stand . . . [o]n the guilt phase at least.”
Brown believed that Downs was present during Harris’s murder. If Downs
testified that he was present but Johnson fired the shot that killed Harris, it would
have placed Downs at the scene assisting Johnson. This would have made Downs
guilty of first degree murder too. Brown explained how Downs being at the scene
but Johnson being the shooter was not a defense to the first degree murder charge:
if [Downs] told the truth, even if he testified that Johnson fired the
shot that killed Mr. Harris, it would have placed him at the scene of
the crime in a position of assisting. And [Downs] would be as guilty
of first degree murder. And he would be convicting himself.
It was not a defense that he wasn’t the one that fired the shot. It
wasn’t a defense to the first degree murder charge. It might be
mitigation, but it wasn’t a defense to the first degree murder charge
that he wasn’t actually the person who fired the shot.
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If, on the other hand, Downs was going to deny his presence at the murder
scene, Brown would not call Downs to testify “knowing that he was going to
perjure himself on the witness stand.”
Thus, before trial, Brown advised Downs against testifying, telling him
“[t]hat he couldn’t get on the stand and incriminate himself, that he couldn’t get on
the stand and commit perjury; [and] that if he attempted to tell a false story on the
witness stand the jury would more than likely see through it.” Brown testified that
he had discussed with Downs “numerous times” the possibility of Downs testifying
in his own defense.
Brown further explained why he concluded that Downs was present during
Harris’s shooting. Prior to trial, Brown went over the results of Harris’s autopsy
report with Downs, and Downs himself pointed out two errors in the report: (1) the
report did not mention a chest wound on Harris, and (2) the report incorrectly
described the caliber of the weapon used to kill Harris—.22 versus .25.
Additionally, Downs told Brown that the murder weapon was thrown off a
bridge, and explained how he and Johnson disposed of the clothes that either
Downs or Johnson wore on the night of the homicide. Downs also told Brown that
he “wished that he had returned to the scene of the murder and moved the body.”
Consequently, based on his discussions with Downs, Brown concluded that Downs
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was present at the murder scene and was involved in the conspiracy to murder
Harris. And Downs never told Brown that he had withdrawn from the conspiracy.
Given that Downs was at the murder scene, Brown intentionally never asked
Downs whether he (Downs) was the one who actually shot Harris.
Brown testified, however, that Downs “always accused Johnson of killing
Mr. Harris.” Moreover, Downs never told Brown that he was present when Harris
was shot, and Brown “never pursued that point.” Brown also acknowledged that
Downs did not tell him what he (Downs) would say on the witness stand.
Another possible reason for Brown’s decision not to call Downs as a witness
was Downs’s prior convictions. Although Brown “may have mentioned” to
Downs that he (Downs) could be impeached by his prior criminal convictions,
Brown “was less concerned with that than [he] was with the fact and circumstances
of the homicide and [Downs’s] presence at the scene of the homicide, and his
participation in it.”
Brown testified that he had advised Downs several times not to take
the stand. Brown recalled: “Sometimes [Downs] would argue about it and
other times he would seem to go along with it. And in the final analysis, he
didn’t argue about it and he didn’t protest. He acquiesced in my decision not
to put him on the witness stand.”
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Brown also testified about his reasons for not calling Perry and Michael as
witnesses. Brown did not call Perry, who is Downs’s sister, because he felt that
she was not credible. Brown stated that “if you ask her the same question three
times, you would get three different versions of what she had hear[d] or seen or so
forth.” Moreover, the fact that Perry was Downs’s sister undermined her
credibility. Brown further explained that, if the State asked Perry the right
questions, her testimony would have placed Downs at the murder scene. After
Brown talked to Downs about Perry’s value as a witness, Downs “never insisted
that [Brown] put her on the stand,” although he might have “urged” Brown to do
so.
As to Michael, Downs’s grandmother, Brown believed her testimony to be
of minimal value because she was not at the scene of the homicide and did not
know how it occurred. Although Michael “knew something about Johnson” and
could have testified to his bad character, Brown weighed that type of testimony
“versus losing the right to open and close, [and] there was no contest as far as [he]
was concerned.” Brown explained that the right to open and close the argument
“became more and more important to [the] defense because of the testimony and
evidence that was left to it and the quality of that testimony and evidence.”
Furthermore, Brown feared that Downs’s grandmother Michael would
perjure herself if she testified that Downs was with her on the night of the murder.
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Michael never mentioned this alibi when Brown first talked to her, and she could
not answer or substantiate any of the details regarding the alibi. Specifically,
Brown stated:
I have talked to Bobbie Jo Michael on several occasions prior to this
alibi issue being raised. There had been no mention from Bobbie Jo
Michael that Mr. Downs was at home at the time of the homicide.
Then one day when I was talking with Mr. Downs in the jail, he told
me, call Bobbie Jo Michael. She knows that I was home at her home
that night of the homicide. And so I did. I followed it up and called
Bobbie Jo Michael. At that point she reiterated the fact that yes, she
believed that he was home the night of the homicide. But I didn’t stop
there. I pursued questioning her further as to how she knew this
particular date, what time he was home and other details.
She couldn’t answer and substantiate any of the details. And
that was a factor combined with the other evidence that I had
investigated and foundout [sic] that caused me not to file any alibi
defense because I concluded that there was no alibi defense.
Before trial, Michael testified at a deposition, but did not mention the alibi
defense. Brown admitted that he told Michael not to reveal the alibi defense
during her deposition. Brown testified: “I told her not to reveal the alibi defense
[unless] the question specifically necessitated it, unless it specifically required it.”
Brown testified that he discussed with Downs whether or not to call Michael
as a witness, and Downs did not demand that she be called.
D. Detective Spaulding’s 3.850 Testimony
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Detective Spaulding testified regarding his conversations with Murray,
Barfield’s cellmate. The first conversations with Murray that Spalding mentioned
in his 3.850 testimony occurred at the jail in October of 1977. In Spaulding’s
October 1977 conversations with Murray, Spaulding learned that “Barfield had
told [Murray] all about the murder,” but Murray “didn’t go into detail” with
Spaulding about what Barfield “said happened on the night” of the Harris murder.
Spaulding informed prosecutor Dennis Guidi of his October 1977
conversations with Murray and discussed the possibility of wiring Murray. Murray
agreed to be wired as early as October 1977, but Guidi advised Spaulding not to
wire Murray at that time. Although Spaulding had several other conversations
with Murray in October and November 1977, Murray was not wired until
December 1977. Even then, the first recordings of Murray’s conversations with
cellmate Barfield were unintelligible, and Spaulding destroyed or taped over those
recordings.
Murray’s first intelligible recording of a conversation with Barfield, spread
over two or three tapes, was made on January 9, 1978, several weeks after the guilt
phase of Downs’s trial had concluded on December 16, 1977. While listening to
the tape recording of the January 9, 1978 conversation between Murray and
Barfield, Detective Spaulding took notes. According to Spaulding’s notes,
Barfield told Murray that Johnson told Barfield that he (Johnson) had shot Harris.
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Specifically, Barfield told Murray: “Harris jumped back and said, What the
hell is going on? And then Johnson shot him.” Barfield further stated (as heard on
the tape, according to Spaulding’s notes): “Johnson, fuck him. He’s lying on
everybody. Don’t worry about Johnson. Just like Lacy [Barfield’s lawyer] always
says, If they all offer me immunity, I’ll say Nixon killed him. Who does he give a
fuck killed him.”
Spaulding was asked at the 3.850 hearing whether he could recall
specifically when “Mr. Murray related to [him] that Mr. Barfield was saying that
Johnson was the one who shot Mr. Harris.” Spaulding responded: “The only time
that that came up was in the tape on January the 9th.” Spaulding did not recall
Murray telling him this information at “[a]ny time prior to” January 9, 1978.
E. Murray’s 3.850 Testimony
Murray testified that he met Barfield in a Florida prison around September
1977. Murray talked with Barfield about Harris’s murder daily from September
1977 to January 1978. During one of their conversations, Barfield told Murray that
Johnson was the triggerman. 4
4
In October 1977, Barfield also asked Murray to kill Downs. Barfield additionally told
Murray that he planned to help an inmate escape and take hostage a busload of children to secure
Barfield’s release.
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Murray testified that he told Detective Spaulding about this conversation
with Barfield as early as October 1977, and also told Barfield’s prosecutor,
Gardner, about the conversation. Murray told Spaulding exactly what Barfield told
him. Spaulding responded that he would “talk to the Prosecutors about it,”
including Guidi. In October and November of 1977, Spaulding assured Murray
“[n]umerous times” that he had spoken to the prosecutors and related to them
“exactly” what Murray told him. As a result, a decision was made to place a wire
on Murray to record a conversation with Barfield.
Murray testified that Barfield told him how he knew that Johnson actually
killed Harris. According to Barfield, when Johnson came back from the murder
scene, Johnson told Barfield that he (Johnson) was by himself and that “Downs
was supposedly been left down at some lounge off of Baymeadows Road, and
Johnson done the actual killing.” Asked whether Barfield said that Downs was
with Johnson at the time of the killing, Murray responded:
Well, the way [Barfield] stated to me, that they had met Harris at the
lounge, I believe it was at Jax Liquors there, and Johnson went with
the guy by himself because he didn’t want to go off with two people.
[Johnson] was a little leery of [Harris] at the time . . . Harris was
flying drugs in and out, and he went off with Johnson, and Johnson
was supposed to have done the actual killing of him.
Murray admitted, however, that he had testified previously during a
suppression hearing that Barfield told him: (1) that both Downs and Johnson were
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at the scene of the crime; (2) that Johnson fired the first three shots at Harris; and
(3) that Downs shot Harris again after Harris died.
Contrary to Spaulding’s testimony, Murray testified that he told Spaulding
before Downs’s trial that Barfield said that Johnson said that he killed Harris.
F. The 3.850 Court’s Decision
The 3.850 court issued a 7-page decision denying all of Downs’s claims. As
to Downs’s claim that law enforcement withheld Brady materials, the 3.850 court
made a fact finding that “[t]he only time that law enforcement heard that Barfield
was saying that Johnson was the triggerman was January 9, 1978. This was after
[Downs’s] trial.” The 3.850 court further concluded that “what a co-defendant
(Barfield) said to a third person (Murray) would not be competent evidence as to
[Downs].” Thus, “Murray’s testimony of what a co-defendant told him would be
inadmissible” in Downs’s trial.
The 3.850 court also pointed to inconsistencies between Murray’s and
Barfield’s statements. While Murray testified at the 3.850 hearing that “Barfield
said that Johnson told him that he (Johnson) killed the victim,” Barfield at his own
trial “testified that he did not know who actually killed the victim.” Also at
Barfield’s trial, Murray testified merely that “Johnson was ‘supposed’ to be the
person who killed Harris.” Finally, the 3.850 court found that Downs “was aware
of Murray and his testimony prior to sentencing and during a co-defendant’s trial.”
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As to Downs’s claim that his lawyer’s contingency fee agreement prejudiced
his defense, the 3.850 court found that: (1) it was previously unaware of the
contingency fee agreement until the 3.850 hearing; (2) this matter was known,
however, at the time of direct appeal; and (3) the 3.850 court was presented with
no evidence that the contingency fee arrangement affected trial counsel’s
representation.
As to Downs’s claim that his lawyer Brown was ineffective for not calling
defense witnesses, the 3.850 court found that Brown “was aware of and explored
all possible—and probable—defenses with [Downs] prior to and during trial.” The
3.850 court further found that Brown “participated in over thirty (30) depositions
or sworn statements of witnesses, filed discovery and other pre-trial Motions,
obtained costs for employment of a private investigator and employed such an
investigator to explore possible defenses, reviewed depositions taken by other
attorneys of co-defendants, conducted legal research and talked with other
attorneys representing co-defendants.”
As for the possible alibi witnesses, the 3.850 court observed that both
proposed witnesses, Michael and Perry, initially denied knowing where Downs
was at the time of the murder, and that neither they nor Downs himself mentioned
an alibi “until shortly before trial.” The 3.850 court further found that Brown’s
decision to not put Downs on the stand or present a “withdrawal” defense was a
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strategic decision because the “withdrawal” defense “appear[ed] tenuous and
legally insufficient.” Thus, the 3.850 court found that “[a]fter a review of all the
evidence, the claims that counsel was ineffective because he did not offer proof of
an alibi or other defense are not supported by the evidence.”
G. Florida Supreme Court Affirms the Denial of Downs’s 3.850 Motion
The Florida Supreme Court affirmed the 3.850 court’s denial of Downs’s
3.850 motion. Downs v. State, 453 So. 2d 1102 (Fla. 1984). The Court affirmed
the denial of Downs’s Brady claim without an explanation, simply stating that
there was “no merit” to this claim and that the 3.850 court “ruled correctly.” Id. at
1104.
Regarding the contingency fee claim, the Florida Supreme Court concluded
that: (1) “[a]lthough such a contingent fee contract is improper and unethical in a
criminal case,5 it does not alone establish denial of effective assistance of counsel;”
(2) “[s]uch unprofessional conduct is one factor to be considered by the trial court
under the totality of the circumstances in determining whether a defendant has
been deprived of effective assistance of counsel;” (3) a “[d]efendant must prove
5
The Rules Regulating the Florida Bar are consistent with the Florida Supreme Court’s
conclusion. See Fla. Rules of Prof’l Conduct R. 4-1.5(f)(3)(B) (stating that “[a] lawyer shall not
enter into an arrangement for, charge, or collect . . . a contingent fee for representing a defendant
in a criminal case.”).
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that this agreement affected trial counsel’s representation”; and (4) the “trial court
properly concluded that there was no such showing in this case.” Id. at 1109.
As to Brown’s alleged ineffectiveness in failing to call witnesses, the Florida
Supreme Court concluded that the 3.850 court’s factual findings in this regard were
supported by the record. Id. at 1106. Applying Strickland, 6 the Florida Supreme
Court determined that Downs failed to show that Brown’s decision not to call
witnesses fell “outside the range of professionally competent assistance.” Id. at
1109. Moreover, even if counsel acted unreasonably, Downs suffered no prejudice
as a result. Id.
H. Subsequent State Post-Conviction Proceedings and Resentencing
After the denial of his first Rule 3.850 motion , Downs filed a petition for
state habeas corpus relief in the Florida Supreme Court based on a substantial
change in the law caused by Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821
(1987). The Florida Supreme Court granted relief and remanded for resentencing
before a jury. Downs v. Dugger, 514 So. 2d 1069 (Fla. 1987).
6
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland was decided
while Downs’s 3.850 appeal was pending in the Florida Supreme Court, and thus the 3.850 court
had not applied that case. See Downs, 453 So. 2d at 1106.
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During that resentencing, Downs testified that he did not kill Harris and
Barfield testified that Johnson claimed to have killed Harris. As described by the
Florida Supreme Court,
Downs’s defense at the resentencing proceeding focused on
establishing that he was not the triggerman and did not deserve the
death penalty. Downs testified that Johnson drove him to the dirt road
and dropped him off. Downs said he had changed his mind about
participating in the murder, so he left the scene and went to the home
of his grandmother, Bobbie Jo Michael. When Johnson found Downs
at Michael’s house later that night, Johnson was carrying Harris’s
driver’s licence and money he took from the body. The next day, he
and Johnson visited Barfield who paid Johnson $500 in partial
payment for the murder.
Downs offered the testimony of various witnesses to support his
theory of penalty defense that Johnson—not Downs—was the
triggerman. Barfield testified that on the day after Harris died,
Johnson presented Harris’s driver’s licence as proof of the killing, and
Johnson admitted at that time that he was the one who killed Harris.
However, Barfield conceded that in his own trial in 1978, he testified
that he had no knowledge of Harris’s murder. Downs’s sister,
Darlene Shafer [Perry], also testified that Johnson told her he had
killed Harris.
Downs v. State, 572 So. 2d 895, 898 (Fla. 1990). As noted, Barfield also conceded
that he had testified earlier that he had no knowledge of Harris’s murder.
After hearing all the evidence, the jury recommended a sentence of death by
an eight-to-four decision. Id. The trial court followed the jury’s recommendation
and reimposed the death sentence. Id. at 897. The Florida Supreme Court
affirmed the sentence on direct appeal. Id. at 901.
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I. Federal Habeas Proceedings
In 2001, Downs filed a 28 U.S.C. § 2254 habeas corpus petition in the
district court. The district court denied the petition as untimely. On appeal, this
Court remanded the § 2254 case back to the district court for an evidentiary
hearing on whether Downs’s untimeliness could be excused due to equitable
tolling. See Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008). The district court
held an evidentiary hearing and ultimately found that Downs was entitled to
equitable tolling of the one-year limitations period prescribed by 28 U.S.C.
§ 2244(d).
Downs then filed an amended § 2254 petition, raising a number of claims,
including the three above claims raised in his initial 3.850 motion: (1) that the State
violated Brady by withholding exculpatory evidence, namely, Barfield’s
statements to Murray that Johnson said he killed Harris; (2) that the contingency
fee agreement with Brown violated Downs’s Sixth and Fourteenth Amendment
rights by creating an impermissible conflict of interest; and (3) that Downs
received ineffective assistance of counsel during the guilt/innocence phase of his
trial due to Brown’s decision not to call any defense witnesses.
The district court denied all of Downs’s § 2254 claims on the merits. The
district court, however, granted Downs a certificate of appealability (“COA”) on
two issues:
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(1) whether counsel was ineffective for failing to call Darlene Perry
and Ms. Michael as defense witnesses; and
(2) whether the State denied Petitioner due process under the Fifth and
Fourteenth Amendments by withholding exculpatory evidence in
violation of Brady v. Maryland . . . .
Subsequently, this Court granted Downs’s motion to expand the COA to include
these issues:
[3] Whether Appellant’s trial counsel had an actual conflict of interest
by entering into a contingent fee arrangement with Appellant and
whether Appellant proved that the contingency fee adversely affected
trial counsel’s representation of Appellant; [and] . . .
[4] Whether trial counsel rendered ineffective assistance of counsel in
not calling Appellant as a witness in the guilt phase of the trial.
III. STANDARD OF REVIEW
Downs’s federal habeas petition and appeal are governed by 28 U.S.C.
§ 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Recognizing the foundational principle that “[s]tate courts are
adequate forums for the vindication of federal rights . . . . , AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Burt v. Titlow, — U.S. —, —, 134 S. Ct. 10, 15-16
(2013). Thus, “[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling . . . was so lacking in
justification that there was an error well understood and comprehended in existing
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law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. —-, —–, 131 S. Ct. 770, 786-87 (2011). The purpose of AEDPA is “to
ensure that federal habeas relief functions as a guard against extreme malfunctions
in the state criminal justice systems, and not as a means of error correction.”
Greene v. Fisher, 565 U.S. —–,—–, 132 S. Ct. 38, 43 (2011) (internal quotation
marks omitted). With this background, AEDPA permits federal courts to grant
habeas relief in only two circumstances after a state court has denied relief. See
28 U.S.C. § 2254(d).
First, § 2254(d)(1) permits a federal court to grant habeas relief when the
state court’s decision “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 phrase “clearly established Federal law”
refers “to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions
as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S.
362, 412, 120 S. Ct. 1495, 1523 (2000). A circuit court “may, in accordance with
its usual law-of-the-circuit procedures, look to circuit precedent to ascertain
whether it has already held that the particular point in issue is clearly established
by Supreme Court precedent.” Marshall v. Rogers, 569 U.S. —,—, 133 S. Ct.
1446, 1450 (2013). However, circuit precedent may not be used “to refine or
sharpen a general principle of Supreme Court jurisprudence into a specific legal
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rule that [the Supreme Court] has not announced.” Id. Also, a circuit court “may
not canvass circuit decisions to determine whether a particular rule of law is so
widely accepted among the Federal Circuits that it would, if presented to [the
Supreme Court], be accepted as correct.” Id. at —, 133 S. Ct. at 1451.
The phrase “contrary to” means that the state court decision “contradicts the
United States Supreme Court on a settled question of law or holds differently than
did that Court on a set of materially indistinguishable facts.” Kimbrough v. Sec’y,
DOC, FL, 565 F.3d 796, 799 (11th Cir. 2009). Further, “it is not an unreasonable
application of clearly established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by the [Supreme Court].”
Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411, 1419 (2009) (internal
quotation marks omitted). “An unreasonable application of federal law is different
from an incorrect application of federal law,” Williams, 529 U.S. at 410, 120 S. Ct.
at 1522; indeed, “even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable,” Richter, 562 U.S. at —,131 S. Ct. at 787.
As long as “some fairminded jurists could agree with the state court’s decision,
although others might disagree, federal habeas relief must be denied.” Loggins v.
Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).
Second, § 2254(d)(2) allows a federal court to grant habeas relief when the
state court decision “was based on an unreasonable determination of the facts in
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light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). As the Supreme Court recently reiterated, “a state-court factual
determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Titlow, — U.S. at —–,
134 S. Ct. at 15 (internal quotation marks omitted). “[E]ven if reasonable minds
reviewing the record might disagree about the [fact] finding in question, on habeas
review that does not suffice to supersede the [state] trial court’s determination.”
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849 (2010) (quoting Rice v.
Collins, 546 U.S. 333, 341-42, 126 S. Ct. 969, 976 (2006)) (alterations omitted).
In short, the standard of § 2254(d) is “difficult to meet . . . . because it was
meant to be.” Titlow, — U.S. at —, 134 S. Ct. at 16 (internal quotation marks
omitted). This “highly deferential standard” demands that “[t]he petitioner carries
the burden of proof,” Cullen v. Pinholster, 563 U.S. —, ——, 131 S. Ct. 1388,
1398 (2011) (internal quotation marks omitted), and “that state-court decisions be
given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct.
357, 360 (2002).
AEDPA’s substantial deference applies to all issues raised in Down’s § 2254
petition. An additional layer of deference applies to Downs’s claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984).
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For this Strickland claim, Downs had to show to the state court “that his
counsel provided deficient assistance and that there was prejudice as a result.”
Richter, 562 U.S. at —–, 131 S. Ct. at 787. To establish deficient performance, “a
person challenging a conviction must show that ‘counsel’s representation fell
below an objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S.
at 688, 104 S. Ct. at 2064). Further, “[a] court considering a claim of ineffective
assistance must apply ‘a strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance. Id. Thus, “[e]ven
under de novo review, the standard for judging counsel’s representation is a most
deferential one.” Id. at —–, 131 S. Ct. at 788.
As a result, “[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. at —-
,131 S. Ct. at 788. “Where the highly deferential standards mandated by
Strickland and AEDPA both apply, they combine to produce a doubly deferential
form of review that asks only ‘whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.’” Gissendaner v. Seabolt,
No.12-13569, — F.3d —, —, 2013 WL 6086032, at *10 (11th Cir. Nov. 19, 2013)
(quoting Richter, 562 U.S. at —,131 S. Ct. at 788). “This ‘double deference is
doubly difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court
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is found to merit relief in a federal habeas proceeding.’” Id. (quoting Evans v.
Sec'y, DOC, FL, 699 F.3d 1249, 1268 (11th Cir. 2012)).
IV. BRADY CLAIM
In Brady v. Maryland, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-
97 (1963). The prosecution has a duty to disclose favorable evidence even absent a
request by the defendant. United States v. Augurs, 427 U.S. 97, 107, 96 S. Ct.
2392, 2399 (1976).
To prove a Brady violation, a defendant must establish three elements: (1)
the evidence at issue is “favorable to the accused, either because it is exculpatory,
or because it is impeaching”; (2) this favorable evidence was “suppressed by the
State, either willfully or inadvertently”; and (3) the defendant suffered prejudice as
a result. Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 745-46 (11th Cir. 2010)
(internal quotation marks omitted). To establish prejudice (also referred to as
materiality), a defendant must demonstrate “‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’” Id. at 746 (quoting United States v. Bagley, 473 U.S. 667, 682,
105 S. Ct. 3375, 3383 (1985)). “A ‘reasonable probability’ is a probability
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sufficient to undermine confidence in the outcome.” Parker v. Allen, 565 F.3d
1258, 1277 (11th Cir. 2009) (internal quotation marks omitted).
A. The 3.850 Court Reasonably Concluded that the State Was Not Aware
of Exculpatory Information Before Downs’s Trial.
The essence of the exculpatory information is Barfield’s statement to his
cellmate Murray that Johnson told Barfield that he (Johnson) killed Harris.
Because the state 3.850 court found that the State was unaware of this evidence
before the guilt phase of the trial, Downs cannot show suppression—the second
Brady element. See id. (“The prosecution does not . . . have an obligation to seek
evidence of which it has no knowledge or which is not in its possession.”); United
States v. Cravero, 545 F.2d 406, 420 (5th Cir. 1977) (“The purpose of Brady is to
assure that the accused will not be denied access to exculpatory evidence known to
the government but unknown to him.” (emphasis added)); 7 see also Dist. Att’y
Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68, 129 S. Ct. 2308, 2319-
20 (2009) (stating that, according to Brady, “due process requires a prosecutor to
disclose material exculpatory evidence to the defendant before trial,” and “nothing
in our precedents suggest[s] that this disclosure obligation continue[s] after the
defendant was convicted and the case was closed” (emphasis added)).
7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981
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In denying Downs’s Brady claim after an evidentiary hearing, the 3.850
court expressly found that the “only time that law enforcement heard that Barfield
was saying that Johnson was the triggerman was January 9, 1978 . . . after
[Downs’s] trial.” This factual finding is supported by the evidence before the
3.850 court. The first intelligible recording of Barfield’s conversation with Murray
occurred on January 9, 1978, after the guilt phase of Downs’s trial. The record
contains no recordings or notes of any conversations between Murray and Barfield
before January 9, 1978. The only evidence of conversations before January 9,
1978 comes from the testimonies of Spaulding and Murray at the 3.850 hearing.
At the 3.850 hearing, Detective Spaulding testified that he was not aware of
Johnson’s statement to Barfield (that Johnson killed Harris) until January 9, 1978.
We recognize that Murray testified that he relayed this information to Spaulding
before Downs’s trial. The 3.850 court, however, was free to credit Spaulding’s
testimony over Murray’s. Similarly, although Detective Spaulding stated that
Murray told him in October of 1977 that Barfield “had told [Murray] all about the
murder,” the 3.850 court was free to believe Detective Spaulding’s testimony that
Murray at that time “didn’t go into detail” about who committed the murder. See
Consalvo v. Sec’y for Dep’t of Corrs., 664 F.3d 842, 845 (11th Cir. 2011) (stating
that “questions about the credibility and demeanor of a witness” are “questions of
fact,” and federal courts “have no license to redetermine credibility of witnesses
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whose demeanor has been observed by the state trial court, but not by them”
(internal quotation marks omitted)).
The 3.850 court therefore reasonably found that Spaulding did not learn
about Johnson’s statement to Barfield (that Johnson killed Harris) until January 9,
1978. And because January 9, 1978 was after the guilt phase of Downs’s trial, this
information could not have been suppressed in violation of Brady as to the guilt
phase. See Osborne, 557 U.S. at 68, 129 S. Ct. at 2319-20; Cravero, 545 F.2d at
420. 8
B. The 3.850 Court Reasonably Concluded that Downs Was Aware of
Johnson’s Statements
There is a second reason Downs cannot show suppression. Unlike the State,
Downs himself was aware of Johnson’s statements to Barfield before his
(Downs’s) trial. See Parker, 565 F.3d at 1277 (stating that there is no suppression
of evidence under Brady “if the defendant knew of the [exculpatory] information
or had equal access to obtaining it”); see also Cravero, 545 F.2d at 420 (“The
purpose of Brady is to assure that the accused will not be denied access to
8
Although Downs’s first “final” sentencing hearing was on January 27, 1978, after
Barfield’s January 9, 1978 statement, Downs already received a new sentencing hearing in 1989,
where a second jury again recommended a death sentence. In this appeal, Downs’s Brady claim
asserts that Johnson’s statement to Barfield, as told by Murray, would have been useful during
the guilt/innocence phase of Downs’s trial.
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exculpatory evidence known to the government but unknown to him.” (emphasis
added)).
At the 3.850 hearing, Downs testified that he was present when, prior to his
trial, Johnson said to Barfield that he (Johnson) killed Harris. Thus, Downs could
have fully used this information to his advantage at trial. For example, he could
have cross-examined Johnson about his admission to Barfield, or could have called
Barfield to testify about Johnson’s statements (assuming that Barfield’s testimony
would have been admissible). Because Downs himself was aware of the allegedly
exculpatory information before his trial, no Brady violation occurred in this case.
See Parker, 565 F.3d at 1277; Cravero, 545 F.2d at 420.
C. The 3.850 Court’s Factual Finding Forecloses Downs’s Argument that
Murray’s Information Could Have Been Used to Impeach Detective
Spaulding
Downs contends that it was not just Johnson’s statement to Barfield that was
exculpatory, but also the fact that Barfield relayed Johnson’s admission to Murray,
and Murray relayed the information to Detective Spaulding. Downs argues that
this information could have been used to impeach Spaulding’s testimony at trial
and undermine the State’s credibility. This argument fails.
As discussed above, the 3.850 court found that Spaulding did not know
about Johnson’s admission until the January 9, 1978 tape recording, a factual
finding supported by evidence. See 28 U.S.C. § 2254(d). Given that Detective
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Spalding did not learn of this information until after Downs’s trial, it could not
have been used to impeach Spalding at Downs’s trial.
D. The Mere Existence of Murray
Downs also argues that even though he was present and already knew what
Johnson told Barfield, the State of Florida still violated Brady by not disclosing to
Downs the “existence of Murray, a government informant residing in the same cell
as co-defendant John Barfield.” This argument also fails.
Although Detective Spaulding indeed knew of Murray’s existence before
Downs’s trial, Downs does not cite to any authority holding that the mere existence
of a person constitutes Brady information. Brady applies only when withheld
information is “favorable to the accused, either because it is exculpatory, or
because it is impeaching.” Allen, 611 F.3d at 745-46 (internal quotation marks
omitted). As the Eighth Circuit has explained, the “mere identity of witnesses is
not exculpatory and is not covered by Brady.” United States v. Boyce, 564 F.3d
911, 918 (8th Cir. 2009).
Instead, the existence of informants or potential witnesses constitutes Brady
material only when the informant or potential witness would offer or lead to
exculpatory or impeaching information favorable to the defendant. Compare, e.g.,
United States v. Streit, 962 F.2d 894, 900 (9th Cir. 1992) (disclosure of witnesses’
identities was not required “because they were not witnesses to the crime and were
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not involved in the criminal enterprise in any way.”), with Monroe v. Angelone,
323 F.3d 286, 300 (4th Cir. 2003) (identities of witnesses who had observed a
suspicious vehicle speeding away from the murder scene were favorable to the
defendant and thus covered by Brady); Smith v. Sec’y of N.M. Dep’t of Corr., 50
F.3d 801, 829–31 (10th Cir. 1996) (police report containing information about the
true identity of a key witness, who actually may have committed the crime but
testified at trial under a false name, was favorable information under Brady);
United States v. McCullah, 745 F.2d 350, 353 (6th Cir. 1984) (indicating that the
identity of a government witness may have been favorable to the defendant where
the witness’s existence lent some support to the defendant’s story because the
witness corroborated that he met the defendant at a certain time and place); see
also Roviaro v. United States, 353 U.S. 53, 64-65, 77 S. Ct. 623, 630 (1957)
(concluding that the government could not withhold the identity of an undercover
informer where the informer was the sole participant with the defendant in a drug
deal and the informer was “the only witness in a position to amplify or contradict
the testimony of government witnesses.”); cf. Banks v. Dretke, 540 U.S. 668, 691,
124 S. Ct. 1256, 1272 (2004) (Brady applies where government failed to disclose
that a key witness at trial was a paid police informant).
Here, Downs points only to the existence of Murray as a jailhouse
informant. He does little to explain how the existence of Murray, by itself, was
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favorable to Downs or would have led him to favorable evidence. As discussed
above, Detective Spaulding testified that before Downs’s trial Murray did not go
into detail as to what Barfield said about what happened on the night of the Harris
murder. Before January 9, 1978, Detective Spaulding obtained no information
from Murray that was favorable to Downs. The existence of Murray did not
implicate Brady before Downs’s trial.
Downs argues that had he known about Murray’s existence before trial,
Murray could have led him to favorable evidence. More specifically, Downs
contends that his counsel could have interviewed Murray before his trial and thus
his counsel would have learned that Barfield told Murray that Johnson had stated
he killed Harris. But Downs did not need Murray for this information; at the time
of his trial, Downs himself was already aware of Johnson’s statement to Barfield
because Downs was there when Johnson allegedly made it.
Downs also suggests that interviewing Murray before his trial “may have led
to additional evidence regarding other statements by Barfield relating to the Harris
killing.” This Court “cannot speculate as what evidence the defense might have
found if the information had been disclosed,” Williamson v. Moore, 221 F.3d
1177, 1183 (11th Cir. 2000) (internal quotation marks omitted), and Downs’s only
example of such additional evidence is “that Barfield told Murray in October 1977
that he was plotting to kill Mr. Downs.” It is difficult to see how this information
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would have been favorable to Downs’s defense. If anything, this shows that
Barfield knew he had hired Downs and wanted to keep Downs from testifying
against Barfield.
Downs cannot avoid that neither Murray nor Barfield actually witnessed the
murder. Downs cannot avoid that Murray had no knowledge about the murder
independent of what he heard from Barfield. Downs cannot avoid that he already
knew that Barfield had information about the murder from Johnson; in fact, Downs
was there when Johnson told Barfield about the murder. Under these
circumstances, we cannot say that the mere existence of Murray as a jailhouse
informant constituted Brady material before Downs’s trial. Much less can we say
that the Florida courts’ rejection of Downs’s argument was contrary to clearly
established Supreme Court precedent. See § 2254(d). Indeed, Downs has cited to
no case from any court holding that the existence of a jailhouse informant under
similar facts would implicate Brady.
In light of the foregoing, we conclude that Downs’s federal habeas petition
falls far short of establishing that the 3.850 court’s ruling on the Brady issue “was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at —-, 131 S. Ct. at 786-87. Downs’s § 2254
petition therefore cannot overcome AEDPA’s “formidable barrier to federal habeas
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relief for prisoners whose claims have been adjudicated in state court.” Titlow, —
U.S. at —, 134 S. Ct. at 16.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Downs argues that counsel Brown rendered ineffective assistance by failing
to call three defense witnesses: himself (Downs), Perry, and Michael. To prove
ineffective assistance of counsel for failure to call witnesses, a defendant must
show both that (1) counsel performed deficiently, and (2) the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. For the reasons stated below, we conclude that the Florida Supreme Court
reasonably found no deficient performance under Strickland, and, therefore, we
need not reach the question of prejudice. See id. at 697, 104 S. Ct. at 2069
(“[T]here is no reason for a court deciding an ineffective assistance claim to . . .
address both components of the inquiry if the defendant makes an insufficient
showing on one.”).
To establish deficient performance, a defendant must show that his counsel’s
representation “fell below an objective standard of reasonableness” under
“prevailing professional norms.” Id. at 688, 104 S. Ct. at 2064-65. The test for
reasonableness is whether, “in light of all the circumstances,” counsel’s conduct
fell “outside the wide range of professionally competent assistance.” Id. at 690,
104 S. Ct. at 2066. “[A] court deciding an actual ineffectiveness claim must judge
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the reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.” Id.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id.
at 689, 104 S. Ct. at 2065. “[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Id. at 690-91, 104 S. Ct. at 2066.
A. Brown’s Decision Not to Call Downs
At the 3.850 hearing, Brown presented two main reasons for not calling
Downs as a witness. First, Brown believed that Downs was at least present during
the shooting of Harris, and, if Downs told this truth on the witness stand, the jury
would have convicted him of first-degree murder. As Brown explained, “it wasn’t
a defense to the first degree murder charge that [Downs] wasn’t actually the person
who fired the shot.”9 Second, Brown did not want Downs to perjure himself on the
stand by testifying that he was not present at the scene of the shooting. These
reasons for not wanting Downs to testify were reasonable. Certainly, counsel’s
refusal to suborn perjury does not constitute deficient performance. See Scott v.
9
Downs does not challenge on appeal Brown’s assessment of Florida law at the time of
trial.
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Dugger, 891 F.2d 800, 803 (11th Cir. 1989) (“[A]ppellant’s lawyer could not have
rendered ineffective assistance by failing or refusing to present a false defense.”).
Downs argues that Brown’s justification for not having him testify is not
supported by the record because (1) Brown did not tell Downs that he would not be
testifying until the brief pause following the closing of the State’s case-in-chief; (2)
even during this brief pause, Brown did not tell Downs that perjury was the reason
why Downs should not testify; and (3) Brown’s belief that Downs would perjure
himself was entirely unjustified. Downs’s arguments fail.
First, according to Brown’s testimony at the 3.850 hearing, Brown had
numerous discussions with Downs about the possibility of his testifying.
Moreover, Brown testified that he had explained to Downs why he should not take
the stand. Specifically, Brown told Downs that “he couldn’t get on the stand and
incriminate himself, that he couldn’t get on the stand and commit perjury; [and]
that if he attempted to tell a false story on the witness stand the jury would more
than likely see through it.” Brown testified that Downs eventually “acquiesced in
[Brown’s] decision not to put him on the witness stand.” 10
Second, Brown’s explanations for why he thought Downs was at the scene
of the murder were reasonable. Brown testified that Downs pointed out
10
As discussed above, we must presume that the Florida courts correctly credited
Brown’s testimony over that of Downs. See 28 U.S.C. § 2254(d)(2); Consalvo, 664 F.3d at 845.
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inaccuracies in Harris’s autopsy report, 11 told Brown how Johnson threw the
murder weapon off a bridge, and also told Brown how he (Downs) and Johnson
disposed of the dirty clothing worn during the shooting. Although, in retrospect,
these communications from Downs did not necessarily place him at the scene of
the shooting, and were consistent with Downs’s version of the facts, it was
reasonable for Brown to believe that Downs’s intimate knowledge of how the
crime occurred evidenced his presence at the scene and involvement in the murder.
Furthermore, the 3.850 court found that “[t]here was no mention of alibi by
[Downs’s] relatives nor [Downs] until shortly before trial,” and Downs does not
challenge this finding. That Downs waited so long to tell Brown that he was at
Michael’s house during the shooting cast serious doubt on this alibi defense, and
further supported Brown’s belief that Downs was, in fact, present at the murder
and would commit perjury by testifying otherwise.
As the Supreme Court cautioned, “[a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
11
Although Downs contradicted Brown’s testimony, the Florida courts were free to
believe Brown over Downs. And even if the autopsy report matter did not alone justify Brown’s
belief that Downs was at the scene of the crime, there were other reasons justifying this belief, as
discussed below.
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at 689, 104 S. Ct. at 2065. Given all the circumstances, we cannot say that
Brown’s decision not to call Downs fell “outside the wide range of professionally
competent assistance.” Id. at 690, 104 S. Ct. at 2066.
B. Brown’s Decision Not to Call Perry and Michael
As to his sister Perry, Downs contends that Brown should have called her as
a witness because she would have testified that Johnson, who was her lover at the
time, told her that he (Johnson) killed Harris.
The 3.850 court found that Brown interviewed Perry in August of 1977.
After interviewing Perry extensively, Brown concluded that if asked the “same
question three times,” Perry would give “three different versions of what she had
heard or seen or so forth.” The 3.850 court also found that during her deposition
on December 5, 1977, Perry “testified that she did not have information where
[Downs] was and that no one told her where he was.” Brown was afraid that Perry
could be “completely impeached” at trial.
Brown also feared that Perry’s testimony would place Downs at the murder
scene. At one point, Perry told Brown in an interview that Johnson said to Perry
that he (Johnson) and Downs “were at the scene of the homicide. Mr. Downs had
the gun in his hand but froze up. [Johnson] took the gun from Mr. Downs’[sic]
hand and killed Harris.” Indeed, Perry never said in the many versions of her story
that Downs was not at the scene or that Downs “was elsewhere.”
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As to his grandmother Michael, Downs contends that Brown should have
called her as a witness because she would have told the jury that Downs was at her
house the night of the Harris murder. The 3.850 court found that Brown
interviewed Michael in August of 1977 and that Michael made no mention of this
alibi at that time. The 3.850 court also found that Michael gave a sworn deposition
on December 7, 1977 during which Michael “denied knowing where [Downs] was
at the time of the murder.”
Michael offered the alibi for the first time shortly before trial. When Brown
questioned her about this, Michael could not answer or substantiate any of the
details regarding the alibi. Although Michael could have testified at trial that
Downs was with her on the night of the murder, Brown reasonably believed that
this alibi was false.
At the 3.850 hearing, Brown testified that he discussed with Downs the
value of both Perry and Michael as witnesses. Downs did not insist that Brown
call either Perry or Michael. Brown further testified that, by not presenting defense
witnesses, he retained the right to begin and end the closing arguments. Brown
explained that this right “became more and more important” to the defense in light
of the testimony presented by the State. Brown weighed presenting the testimony
of Perry or Michael “versus losing the right to open and close, [and] there was no
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contest as far as [he] was concerned.” Brown’s decision to sacrifice essentially
valueless testimony to preserve opening and closing arguments was reasonable.
Again, although Brown’s strategy not to call Perry or Michael turned out to
be unsuccessful, and may have been erroneous in hindsight, we cannot say that this
strategy was unreasonable under the then-prevailing professional norms. See
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Much less can we say that the
Florida court applied Strickland unreasonably in determining that Brown’s
performance was not deficient. See 28 U.S.C. § 2254(d).
VI. CONTINGENCY FEE CLAIM
Before getting to the merits of Downs’s contingency-fee claim, we must
determine what standard governs this claim. Downs contends that his claim is
governed by the Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335,
100 S. Ct. 1708 (1980), which held that “a defendant who shows that a conflict of
interest actually affected the adequacy of his representation need not demonstrate
prejudice in order to obtain relief.” Id. at 349-50, 100 S. Ct. at 1719. Downs
argues that the Florida state courts unreasonably applied Sullivan in denying his
contingency-fee claim.
Sullivan dealt with a conflict of interest in the context of counsel’s
concurrent representation of multiple defendants. See id. at 337-38, 100 S. Ct. at
1712-13. The Supreme Court later explained, in dicta, that Sullivan does not
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expressly apply to counsel’s personal conflicts of interests outside the multiple
representation context. Mickens v. Taylor, 535 U.S. 162, 174-75, 122 S. Ct. 1237,
1245 (2002) (stating that, although Courts of Appeals have applied Sullivan
“unblinkingly to all kinds of alleged attorney ethical conflicts,” including “when
representation of the defendant somehow implicates counsel’s personal or financial
interests,” the “language of Sullivan itself does not clearly establish, or indeed
even support, such expansive application” (internal quotation marks omitted));
Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (“[T]he Supreme Court’s
analysis in Mickens of whether its Sullivan rule applies to conflict of interest
situations other than the one involved in the Sullivan case . . . is dicta.”).
Although the Mickens observation was dicta, this Court has expressly agreed
with Mickens, stating: “there is no Supreme Court decision holding that any kind
of presumed prejudice rule applies outside the multiple representation context. The
Sullivan decision itself did not involve any other context.” Id. at 1327.
Because it was far from clearly established that Sullivan applied to Downs’s
contingency fee claim, the Florida Supreme Court’s decision denying that claim
could not have been “contrary to, or involved an unreasonable application of,”
Sullivan. See 28 U.S.C. § 2254(d)(1). But even if Sullivan’s principles applied in
the contingency-fee context, Downs’s claim still fails. To show a constitutional
violation under Sullivan, a defendant must demonstrate that (1) his counsel labored
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under an actual conflict of interest, and (2) this conflict “adversely affected”
counsel’s performance. Sullivan, 446 U.S. at 348, 100 S. Ct. at 1718; Reynolds v.
Chapman, 253 F.3d 1337, 1342 (11th Cir. 2001). To show adverse effect, a
defendant need not show that, but for the conflict of interest, the outcome of the
proceeding would have been different. See Reynolds, 253 F.3d at 1347. Rather, a
defendant “merely must demonstrate that his attorney’s conflict of interest had an
effect upon the representation that he received.” Id.
Assuming, without deciding, that Downs established an actual conflict of
interest, he still failed to show adverse effect. Downs contends that the
contingency fee adversely affected Brown’s representation by causing Brown not
to present any defense witnesses. However, at the 3.850 hearing, Brown testified
that the contingency fee arrangement did not affect his representation of Downs in
any way or at any time, and that he did not consider the possible $10,000 bonus in
making strategic decisions during the trial. Brown stated that, very early in his
representation, he gave up “all hope of receiving that $10,000 and even the
minimum fee of $5,000.” And Brown realized early on that “it would take a
miracle to get Mr. Downs acquitted of all felony charges.”
Brown’s testimony established that the contingency fee agreement played no
role in guiding his decision to not present any defense witnesses. The state 3.850
court found, and the Florida Supreme Court affirmed, that Downs had failed to
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show that the contingency fee affected Brown’s representation of Downs.
Accordingly, even if Sullivan clearly governed Downs’s claim, the Florida courts
did not unreasonably apply Sullivan in finding that Downs failed to establish an
adverse effect from the contingency fee agreement. See Sullivan, 446 U.S. at 348,
100 S. Ct. at 1718. Thus, we must affirm the district court’s denial of § 2254 relief
with regard to this claim.
VII. CONCLUSION
For all these reasons, we affirm the district court’s denial of Downs’s § 2254
habeas petition.
AFFIRMED.
53
Ernest Charles Downs v. Secretary, Florida Department of Corrections
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2013-12-05
Citations: 738 F.3d 240
Copy CitationsCombined Opinion