Fred Anderson, Jr. v. Secretary, Florida Department of Corrections

Case: 11-13921 Date Filed: 05/12/2014 Page: 1 of 65

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 11-13921
________________________

D. C. Docket No. 5:09-cv-450-WTH-TBS

FRED ANDERSON, JR.

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
_________________________

(May 12, 2014)

Before TJOFLAT, MARTIN, and DUBINA, Circuit Judges.

TJOFLAT, Circuit Judge:
 Case: 11-13921 Date Filed: 05/12/2014 Page: 2 of 65

Fred Anderson Jr. is a Florida death-row inmate awaiting execution for

capital murder. The crime occurred on March 20, 1999, while Anderson was

robbing a bank in Mount Dora, Florida. The only bank employees on duty at the

time were two tellers. Anderson, using two handguns, shot them both. One of the

tellers died at the scene, and the other survived. At his trial in Lake County, the

jury convicted Anderson of capital murder, 1 attempted first degree murder, 2

robbery with a firearm, 3 and grand theft of a firearm. 4 The jury unanimously

recommended that Anderson be sentenced to death for the murder, and the trial

judge, accepting the jury’s recommendation, sentenced him accordingly.

Anderson seeks a writ of habeas corpus on the ground that his attorneys

denied him his right to the effective assistance of counsel in the penalty phase of

his case, in violation of the Sixth and Fourteenth Amendments to the United States

Constitution.5 Specifically, Anderson argues that his attorneys, in preparing for the

penalty phase, failed to conduct a reasonable investigation into mitigating evidence

and, as a result, failed to discover and present to the jury the mitigating evidence a

1
Fla. Stat. § 782.04(1)(a).
2
Id. §§ 782.04(1)(a), 777.04(1), 775.087.
3
Id. § 812.13(2)(a).
4
Id. § 8.12.14(1), (2)(c)(5). Anderson was also charged with burglary of a structure,
pursuant to § 810.02(1), (4), but the court dismissed the charge during trial.
5
The Sixth Amendment provides, in relevant part, that “In all criminal prosecutions, the
accused shall . . . have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The
Sixth Amendment applies to the states under the Due Process Clause of the Fourteenth
Amendment. See Gideon v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797 (1963).

2
 Case: 11-13921 Date Filed: 05/12/2014 Page: 3 of 65

reasonable investigation would have disclosed. He claims that, but for such

failure, there is a substantial probability that he would not have received a death

sentence. The United States District Court for the Middle District of Florida,

agreeing with the Supreme Court of Florida that Anderson’s claim lacked merit,

denied his application for a writ of habeas corpus. 6 We affirm the District Court’s

ruling.

I.

A.

The circumstances that led to Anderson’s arrest and conviction for capital

murder go back to 1986, when, at age eighteen, he entered Bethune-Cookman

University in Daytona Beach, Florida, hoping to obtain a degree in psychology.

His academic performance was poor; after his first semester, his grades started

dropping, and by 1990 they were falling precipitously.

In addition to struggling academically, Anderson began to find himself in

trouble with the law. In December 1991, Anderson was convicted of passing a

worthless check in the County Court of Volusia County, 7 fined $85, and placed on

6
In denying the writ, the District Court, pursuant to 28 U.S.C. § 2253(c)(1), granted
Anderson a certificate of appealability to appeal his claim that Florida’s death penalty statute is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000). Anderson now concedes that Evans v. Secretary, Florida Department of
Corrections, 699 F.3d 1249 (11th Cir. 2012), which we decided after he took this appeal,
forecloses that claim.
7
Daytona Beach is located in Volusia County, Florida.

3
 Case: 11-13921 Date Filed: 05/12/2014 Page: 4 of 65

probation for three months. In March 1992, his probation officer reported to the

court that Anderson had violated the conditions of his probation and requested that

a warrant be issued for his arrest. A warrant issued, and following a hearing held

in April 1994, the County Court sentenced Anderson to jail for seventeen days. 8

Less than two months after he was released, he was convicted in the County Court

on twenty-one counts of passing worthless checks, totaling $1,135.61, to Walmart,

Home Depot, Walgreens, and other stores, and was ordered to pay restitution and

placed on one years’ probation.

B.

At some point prior to these convictions, Anderson got a job working for

Bethune-Cookman University’s admissions office. While serving in this position,

Anderson embezzled the tuition payments of two incoming students––amounting

to $4,750. Upon discovering this embezzlement, the University reported

Anderson’s actions to the State Attorney who filed an information in the Volusia

County Circuit Court, charging Anderson with grand theft, a third degree felony.

Anderson pled not guilty and stood trial. A jury found him guilty as charged, and,

in September 1994, the Circuit Court sentenced him to five years’ probation, a

condition of which required that he make restitution to the University for its loss.

Anderson failed to comply with the payment schedule required by this condition,
8
The record contains no explanation for the court’s two-year delay in acting on the
warrant.

4
 Case: 11-13921 Date Filed: 05/12/2014 Page: 5 of 65

however, and on April 1, 1997, the Circuit Court revoked his probation and placed

him under Community Control––a form of in-house arrest––under the supervision

of a Volusia County probation officer. 9

Anderson obtained the court’s permission to serve the house arrest at the

residence of his mother, Geneva Anderson, in Umatilla, Florida. As a

consequence, his supervision was transferred to the Lake County probation office

and to probation officer Kathy Carver. Under the conditions of Anderson’s

Community Control, he was required to continue making restitution payments to

Bethune-Cookman. Pursuant to this requirement, Anderson was permitted to work

outside of his mother’s residence in jobs of which Carver approved. Otherwise,

Anderson was restricted to his mother’s residence.

Anderson failed to comply with the conditions of his Community Control

when he failed to make the scheduled restitution payments or to stay in his

mother’s residence when he was not working. On May 20, 1998, Carver reported

9
According to the Florida Department of Corrections:
Community Control is a form of intensive supervised house arrest in the community,
including surveillance on weekends and holidays, administered by officers with limited
caseloads. It is an individualized program in which the freedom of the offender is
restricted within the community, home or non-institutional residential placement, and
specified sanctions are imposed and enforced. As with probation, violation of any
community control condition may result in revocation by the court and imposition of any
sentence which it might have imposed before placing the offender on community control
supervision. Many of the offenders who are placed on community control are prison
diversions.
Florida Department of Corrections, Annual Report 1997–1998, available at
http://www.dc.state.fl.us/pub/annual/9798/stats/stat_cs.html.

5
 Case: 11-13921 Date Filed: 05/12/2014 Page: 6 of 65

Anderson’s non-compliance to the Lake County Circuit Court, requested the

revocation of his Community Control, and recommended that Anderson be

committed to the Probation and Restitution Center (“PRC”) in Pine Hills 10 or

sentenced to jail for eleven months and twenty-nine days. Anderson and his

attorney received a copy of Carver’s report and recommendation, and the court

scheduled a revocation hearing. The hearing was continued at Anderson’s request,

and rescheduled for January 6, 1999. That hearing was again delayed at

Anderson’s request and was rescheduled for Monday, March 15, 1999.11

The hearing was held as scheduled on March 15, and Anderson appeared

with counsel. After Carver testified to Anderson’s non-compliance with the

conditions of Community Control, the Circuit Court ordered Anderson placed

under Community Control for 529 days, one year to be served at the PRC

beginning the following Friday, March 19. The court’s actions operated to

terminate Carver’s supervision; Anderson would thereafter be supervised by a

Volusia County probation officer, Deborah Laso.

Because Anderson was under travel restrictions and thus not authorized to

travel to the PRC, he needed a travel permit. Carver instructed him to meet her at

her office in Tavares the next morning, March 16, to pick up such a permit. When
10
Pine Hills is a suburb of Orlando, Florida.
11
The record does not indicate the date of the first revocation hearing. Carver testified,
in substance, that the two hearings were continued because Anderson and his attorney were
having difficulty coordinating.

6
 Case: 11-13921 Date Filed: 05/12/2014 Page: 7 of 65

the two met as scheduled, Carver gave Anderson a travel permit and instructed him

to report to the PRC on Friday, March 19 by 4:00 p.m.

C.

On Thursday March 18, Anderson left his mother’s residence and went to

the residence of a friend, Kerry Cunningham, intending to steal a .22 caliber

revolver that Cunningham kept in a locked shed behind his residence.

Cunningham was not there, but his brother-in-law was. Under the pretense of

wanting to use the telephone, which was in the shed, Anderson convinced

Cunningham’s brother-in-law to let him into the shed and leave him alone. Once

alone, Anderson stole the revolver. Later in the day, Anderson went to the Mount

Dora branch of the United Southern Bank (the “USB”) and spoke with Johnnie

Scott, a loan secretary he knew from church, who sang with him in the choir.

Anderson told Scott that he was organizing a youth choir and asked if she would

like to join him. He did not mention having to relocate to the PRC the following

day.

On Friday morning, March 19, Anderson went to Carver’s office, arriving

around 10:30 a.m. Carver was not there, but Anderson spoke with another

probation officer who was available. Anderson told this officer that he had been

ordered to report to the PRC by 4:00 p.m. that day for failing to make restitution to

Bethune-Cookman University for funds he had embezzled and that he now had the

7
 Case: 11-13921 Date Filed: 05/12/2014 Page: 8 of 65

money necessary to satisfy the obligation. Since he was going to pay the

University the sums due, he wondered whether it would still be necessary to report

to the PRC. The officer told him to report as ordered.

Later that morning, sometime between 11:00 a.m. and noon, Anderson went

to the USB branch in Mount Dora. Two tellers––Marisha Scott and Lori Weed––

were on duty. Anderson approached Weed and introduced himself as a student at

Valencia Community College.12 He said that he was interviewing bank officers as

part of a research assignment on banking and financial operations. Scott, the head

teller, told Anderson that if he would be willing to wait, he could speak with the

bank manager, Allen Seabrook. Twenty minutes later, Seabrook invited Anderson

into his office where the two conversed for ten to fifteen minutes. Their

conversation focused primarily on how a depositor opens and maintains a bank

account. Seabrook noticed that whenever he took his eyes off of Anderson to

glance at the lobby, Anderson’s focus shifted to the surveillance VCR on

Seabrook’s desk. Other than this apparent fixation with the VCR, however,

Seabrook thought that Anderson behaved quite normally.

Following his trip to the USB in Mount Dora, Anderson went to the Colonial

Bank in Umatilla. He told the attendant who greeted him that he wanted to open a

12
Valencia College is located in Orlando, Florida. The head of admissions for the
college testified at Anderson’s trial that Anderson had never been enrolled as a student.

8
 Case: 11-13921 Date Filed: 05/12/2014 Page: 9 of 65

bank account. The officer he needed to see was busy, so the attendant asked

Anderson to return on Monday.

At 2:30 on Friday afternoon, Anderson called Deborah Laso in Daytona

Beach. He told her that he had the money necessary to satisfy his restitution

obligation to Bethune-Cookman and asked how he should go about making the

payment. Laso told Anderson that he would have to speak to Kathy Carver about

it; in any event, he needed to report to the PRC by 4:00 p.m. as ordered. Anderson

failed to report to the PRC, however, and instead went back to his mother’s house.

On Saturday morning, March 20, while his mother was out of the house

grocery shopping, Anderson removed a loaded .22 caliber revolver from her

dresser. When she returned, he asked to borrow her car to go to the store.13

Armed with her revolver and the revolver he had stolen from Cunningham’s shed,

he drove to the USB branch in Mount Dora. On the way he stopped by the

Walmart and purchased orange juice and a package of donuts.

Anderson arrived at the bank at about 10:15 a.m. The only personnel on

duty were two tellers––Heather Young and Marisha Scott. Anderson gave them

the orange juice and donuts he had purchased, saying that they were tokens of

appreciation for arranging his meeting with Seabrook the previous day. He then

13
Anderson’s mother was using a neighbor’s automobile. Anderson did not possess a
valid driver’s license; his license had been suspended. He did not own or have possession of an
automobile. The record does not indicate how he transported himself to and from the various
locations indicated in the text.

9
 Case: 11-13921 Date Filed: 05/12/2014 Page: 10 of 65

asked Scott if she would explain the job duties of a bank teller, claiming that he

needed the information to complete his research assignment. Scott agreed, and

Anderson spoke with her for about an hour and a half, until there were no

customers in the bank.

At around 11:45 a.m., about fifteen minutes before the bank was set to close,

Anderson told the two tellers that he was going to his car to get a business card to

give to them. The tellers found this odd, and Scott decided to lock the front door

while Anderson was outside. Before she could reach the door, however, Anderson

reentered the bank. Once inside the bank, he pointed one of the revolvers he was

carrying at Scott and ordered her to go to the vault without setting off any alarms.

Young, standing at her teller’s station, observed this and apparently froze in fear.

Two doors inside the vault had to be unlocked before the bank’s cash locker

could be accessed, so Scott went behind the tellers’ stations and retrieved the keys

to the doors. As she was doing this, Anderson warned her again not to set off any

alarms. After retrieving the keys, Scott unlocked the doors, and Anderson took her

and Young to the cash locker. The tellers opened the locker using their assigned

combinations. Anderson then ordered them to remove the liner bag from the

trashcan located in the vault and fill the bag with money. They complied: They

cleaned out the $71,618 contained in the top half of the cash locker, placed the

10
 Case: 11-13921 Date Filed: 05/12/2014 Page: 11 of 65

money in the bag, and gave the bag to Anderson. At this point, Anderson asked

the tellers who wanted to die first. Scott begged him not to hurt them.

At approximately 11:50 a.m., ten minutes before the bank was scheduled to

close, Sherry Howard arrived at the bank with her two children. After entering,

she noticed that the bank was “unusually dark” and that no one was in the lobby.

She heard a woman’s voice, coming from the direction of the vault, saying “Please

don’t. Please no.” Howard recognized the voice as belonging to Scott, with whom

she had worked for three years at the Eustis branch of the USB. Turning toward

the vault, Howard saw what appeared to be a heavily built black man standing just

inside the vault doorway. His back was facing away from Howard, and his arms

were extended. Howard heard a woman’s scream and two or three gunshots. She

immediately grabbed her children, left the bank, and ran to a nearby grocery store

to call the police.

Anderson fired ten shots 14 at point blank range at Scott and Young. Seven

of the shots struck Young; two struck Scott. Anderson put the revolvers in the

trashcan liner bag and went to Seabrook’s office. There, he tried to eject the

surveillance tape from the VCR on Seabrook’s desk, but a security feature of the

VCR prevented him from doing so. Frustrated, he ripped the VCR from its mount

and attempted to pull its cord from the wall. As he was doing this, the bag he was
14
Four shots were fired from his mother’s revolver and six shots were fired from
Cunningham’s.

11
 Case: 11-13921 Date Filed: 05/12/2014 Page: 12 of 65

holding ripped open, spilling the money and the two revolvers onto the office floor.

Anderson retrieved all of the money and his mother’s revolver, 15 which he placed

in a nearby trashcan. At this point, he heard moaning sounds coming from the

vault. He went there and was surprised to find the two tellers still alive.16

A 911 call to the police brought a quick response; two officers arrived at the

scene in less than two minutes. They entered the bank with weapons drawn and

observed Anderson holding the VCR and the trashcan containing the money and

his mother’s revolver. The officers ordered him to drop everything. Anderson

complied, identifying himself as the bank janitor and asking the officers not to

shoot. The officers handcuffed Anderson and searched the building for

accomplices. As other officers entered the bank to assist in securing the area,

Anderson spontaneously volunteered to one of them “I did it. I did it by myself.

I’m by myself.”

15
Cunningham’s revolver had slipped under Seabrook’s desk, and Anderson did not
retrieve it.
16
The record is not clear as to what Anderson did when he found the women still alive.
Scott testified that sometime after she was shot, she saw a large black object coming towards her
face. Both victims had head wounds. The State claimed that the most likely cause of the
wounds was that Anderson, after returning to the vault and realizing that the tellers were alive,
struck them with the VCR or some other large object. The VCR was dented, but it was unclear
how the dent got there. Anderson told the jury that after he reentered the vault and saw blood
coming from Scott’s neck, he dropped the VCR.

12
 Case: 11-13921 Date Filed: 05/12/2014 Page: 13 of 65

Paramedics arrived and attended to the two victims. Young was the more

severely injured of the two.17 Despite the best efforts of the paramedics on the

scene, 18 she died on the way to the local hospital. Scott suffered only two gunshot

wounds, but her injuries were catastrophic. One of the bullets had entered her neck

and struck her spinal cord, leaving her paralyzed and with a severely limited ability

to intake oxygen. Through extraordinary efforts the paramedics were able to keep

Scott alive as she was evacuated from the bank and transported by helicopter to a

hospital in Orlando.19

17
The medical examiner testified that each of seven gunshot wounds Young sustained
could have killed her except for the wound caused by a bullet that went through her chin and out
her right eye. One of the wounds had a pattern of gunpowder “tattooing” around it, which
indicated that the shot was fired no farther than ten inches or so away.
18
Through an initial survey of the victims’ conditions, the paramedics determined that
Young had the most severe injuries with several shots to the head and two shots to the torso.
Above her right eye was a massive spot of damage, and she was convulsing, which indicated a
severe head injury. At this point she was completely unable to communicate with the
paramedics and gave absolutely no indication that she was aware of their presence. She had a
very faint and weak carotid pulse, and the paramedics could not register a reading of blood
pressure. In an attempt to funnel as much blood and oxygen as possible to the heart and the
brain, the EMTs suspended Young’s feet about a foot off the ground and ventilated her with a
bag valve mask. Despite these efforts Young “coded”––went into complete cardiac arrest––and
the paramedics began administering CPR. Shortly after Young coded––about 25 minutes after
the EMT’s began administering care––an ambulance team arrived on the scene and assumed
control of Young’s care. These paramedics attached Young to a cardiac monitor and attempted
to restart her heart through the use of a drug called atropine sulphate and a drug called
epinephrine, commonly known as adrenaline. Although they were initially successful in
restarting Young’s heart, she quickly slipped back into cardiac arrest.
19
In an effort to manage Scott’s breathing airway, a bag valve mask was placed on her
face to breathe for her. Given the severity of her injuries, however, it quickly became apparent
to the paramedics on the scene that endotracheal intubation was necessary. This required them
feed a tube through Scott’s mouth, down her throat, and into her lungs. Given Scott’s condition,
they had to do a surgical cricthyrotomy––a vertical incision into Scott’s neck and through her
windpipe to allow the insertion of the tube into her lungs. This allowed the paramedics to supply
Scott with oxygen until the evacuation helicopter arrived.
13
 Case: 11-13921 Date Filed: 05/12/2014 Page: 14 of 65

Anderson was taken from the bank to the nearby police station. The police

questioned him there, and he confessed to committing the robbery and shooting the

tellers. 20

II.

On March 21, 1999, the day following his arrest, Anderson appeared in the

Lake County Circuit Court, was advised of his rights, and, being indigent,

requested the appointment of counsel. The court appointed the Office of the Public

Defender for the Fifth Judicial Circuit of Florida.21 Two Assistant Public

Defenders were placed in charge of Anderson’s case––William Stone and Clinton

Doud. 22 Stone served as Anderson’s lead counsel, and Doud served as second

chair.

While in the helicopter, however, Scott again began to suffer from lack of oxygen. Her
color faded from pink back into a bluish cyanotic state, and she slipped into unconsciousness.
The paramedics on board were having difficulty getting oxygen into her lungs due to a buildup
of pressure in the chest, known as pneumothorax. Through a procedure known as needle
thoracentesis––whereby a needle is inserted into the chest above one of the ribs to relieve
pressure from the lungs and chest cavity––the paramedics were able to revive Scott en route to
the hospital.
20
In his initial responses to the questioning, Anderson stated that he went to the bank to
look at the bank’s brochures and see what services it had to offer, that he did not know why he
had two guns in his possession, that he did not enter the manager’s office to get the VCR, and
that the reason the VCR cord was ripped from the wall socket was because he tripped on it.
21
The Fifth Judicial Circuit includes Lake County.
22
Originally, Assistant Public Defender Michael McDermott was assigned to Anderson’s
case along with Stone, but he was replaced by Doud in August or September 1999.

14
 Case: 11-13921 Date Filed: 05/12/2014 Page: 15 of 65

Nine days later, on March 30, Anderson was indicted and charged with the

capital murder of Heather Young, attempted murder of Marisha Scott, armed

robbery of the USB, and grand theft of Cunningham’s firearm. He was arraigned

on April 1 and entered pleas of not guilty.

The evidence against Anderson was overwhelming. The bank’s security

cameras had recorded the robbery, the police had caught Anderson red-handed, and

Anderson had confessed to both the robbery and the shooting. 23 It was therefore

obvious to Stone and Doud that Anderson would be found guilty as charged. The

best they could hope for would be a sentence of life imprisonment for Heather

Young’s murder.

A.

As the starting point in the defense team’s effort obtain information that

would persuade a jury not to recommend the death penalty, Stone had Anderson

answer a battery of questions posed in a questionnaire styled “Confidential

Forensic Assessment” (the “Questionnaire”). The questions focused on the

defendant’s background and were wide-ranging. Among many areas, the questions

23
Additionally, Anderson’s hands tested positive for gunshot residue, and blood on his
clothes tested positive for Scott’s DNA. A weapons expert also testified that four of the .22
caliber bullets found at the scene matched the revolver Anderson stole from his mother, and
although not a perfect match, six of the .22 caliber bullets were consistent with the revolver that
Anderson took from Cunningham’s shed.

15
 Case: 11-13921 Date Filed: 05/12/2014 Page: 16 of 65

inquired into the defendant’s family, childhood, history of abuse, education,

employment, drug use, incidents of physical trauma, and mental health history.

The investigator from the Public Defender’s Office assigned to Anderson’s

case, J.T. Williams, delivered the Questionnaire to Anderson and asked that he

complete it and return it to Stone. Anderson did as instructed, answering every

question. State Court––Collateral Appeal Record, vol. 7, at 1098–1154. His

answers to some questions were too long to fit in the space provided, so he

attached several additional pages of information to the Questionnaire. Both Stone

and Doud felt that Anderson’s answers to the Questionnaire were more

comprehensive and thorough than any they had ever received in a capital case.

On the Questionnaire, Anderson denied any history of child abuse. Asked to

“describe sexual behavior among family members,” Anderson answered “None.”

Id. at 1102. Asked if he thought he was abused or neglected as a child, Anderson

answered “No,” id. at 1102, and in another section listed that he was sixteen before

he became sexually active, id. at 1116. In a section asking him to underline any

problems experienced during his childhood, Anderson did not underline “Sexually

Molested,” “Traumatic Event,” or “Witness to Violence,” although he did

underline “Extreme Fears,” “Accident Prone,” and “Sick a Lot.” Id. at 1130.

Actually, Anderson’s answers to the Questionnaire painted a relatively rosy

picture of his childhood. Asked to describe his home environment as a child, he

16
 Case: 11-13921 Date Filed: 05/12/2014 Page: 17 of 65

answered that he always received “suppor[t]” from his parents and that “[t]here

was never a question of love.” Id. at 1102. Asked for a summary of his family life

as a child he answered that he “had a normal childhood” and that “[he] wasn’t an

abused child.” Id. at 1106.

In one section, Anderson was asked to list the deaths of any close relatives

or friends. Id. at 1104. Among the six people Anderson listed was Michael Green

whom Anderson described as a cousin who had died from a brain tumor. Id. The

Questionnaire also asked him to describe the effect the listed deaths may have had

on him. In an attached sheet, he gave a description of how the deaths of the other

five friends and relatives he had listed affected him. Id. at 1146–47. He made no

reference to Michael Green in the attached sheet.

The Questionnaire did not reveal an extensive problem with drugs and

alcohol. Asked if he consumed alcoholic beverages, Anderson answered “yes, in

the past” and that he did not consider himself an alcoholic. Id. at 1134–35. Asked

if he “use[d] drugs or ha[d] . . . in the past,” Anderson answered “Yes” and

underlined “in the past.” Id. at 1136. When asked for the history of his use,

Anderson answered “Marijuana––occasionally.” Id.

Finally, the Questionnaire disclosed no evidence of head trauma. Asked to

list “all hospitalizations for mental disturbance, neurological problems and head

injuries” Anderson answered “None.” Id. at 1126. He also answered “None”

17
 Case: 11-13921 Date Filed: 05/12/2014 Page: 18 of 65

when asked to list all outpatient contacts for the same. Id. Asked if he “ever

suffered hallucinations, blackouts, flashbacks or other adverse effects,” Anderson

answered “No.” Id. at 1136.

Stone evaluated Anderson’s answers to the questions posed outside of

Anderson’s presence. Stone met with Anderson several times, and at no point

during those meetings did Anderson divulge any information about a history of

sexual abuse, drug use, or head trauma that differed from, or was inconsistent with,

what he disclosed in completing the Questionnaire.

About three weeks prior to the commencement of Anderson’s trial, Stone

moved the court to appoint Dr. Elizabeth McMahon to evaluate Anderson.24 The

court granted his motion. Dr. McMahon was a forensic psychologist with over

thirty years of experience, including involvement in the penalty phase in more than

100 capital murder cases. Stone briefed Dr. McMahon on Anderson’s case, asking

her to evaluate Anderson with an eye toward developing mitigating evidence.

Dr. McMahon met with Anderson on four occasions amounting to a total of

about thirteen hours. During this time she conducted a full neuropsychological

screening, which included the sessions with Anderson and the results of a

24
Stone deliberately delayed having Dr. McMahon appointed until he had assembled all
the background information he anticipated she would need to perform her evaluation. Among
other things, Dr. McMahon would need a transcript of Marisha Scott’s deposition, which, due to
the severity of Scott’s injuries, could not be taken until two and one-half weeks prior to the trial.

18
 Case: 11-13921 Date Filed: 05/12/2014 Page: 19 of 65

comprehensive battery of psychological tests.25 In the sessions with Anderson, and

in an effort to obtain evidence to counter the State’s claim that Heather Young’s

murder was premeditated, Dr. McMahon tried to get Anderson to remember

anything that might have precipitated the shooting. He told her that he could

recall the shooting, but not why the guns went off. Based on her sessions with

Anderson and the results of the tests she had administered, Dr. McMahon

concluded that Anderson was suffering from a great deal of anxiety which could be

causing his memory loss. On her recommendation, Stone obtained the court

appointment of Dr. Jacqueline Whitmore, a psychologist specializing in

hypnotism, in the hope that, under hypnosis, Anderson would reveal further details

about what took place after he ordered the tellers into the bank’s vault. Anderson

was hypnotized but revealed nothing more than what he had told his attorneys and

Dr. McMahon.

In addition to meeting with Anderson and administering a battery of

psychological tests, Dr. McMahon reviewed, among other items, “discovery

material compiled by the State, statements made by the defendant to the police,

depositions of Category ‘A’ witnesses (including a videotape of [Scott’s]

25
McMahon administered the following tests on September 6 and 8, 2000: Wechsler
Adult Intelligence Scale-Revised (WAIS-R), Wisconsin Card Sorting Test, Minnesota
Multiphasic Personality Inventory-2 (MMPI-2), Rorschach Ink Blot, Memory Assessment
Scales, Stroop Color Word Test, Trail Making Tests A and B, Personality Disorder
Questionnaire-Revised, Projective Drawings Test, Hand Test, Competency Assessment, and a
Miranda Rights Assessment. State Court––Collateral Appeal Record, vol. 7, at 1034.

19
 Case: 11-13921 Date Filed: 05/12/2014 Page: 20 of 65

deposition), school records, and letters written and received by the defendant since

his arrest.” State Court––Collateral Appeal Record, vol. 7, at 1034. Based on this

information, Dr. McMahon concluded that there was no evidence of anything “that

would serve as either statutory or non-statutory mitigation factors before the Court

with respect to sentencing.”26 Id. at 1035.

Based on Dr. McMahon’s report and Anderson’s answers on the

Questionnaire, Anderson’s attorneys finalized their trial strategy. They decided

not to attack the overwhelming evidence of guilt the State would be introducing,

reasoning that such a strategy would be ineffective if not counterproductive.

Instead, their plan of attack would be to “humanize” Anderson. They would use

the guilt phase of the trial as an “extension” of the penalty phase, and in both

phases would do their best to portray Anderson in a way that would generate the

maximum amount of sympathy for him and hopefully persuade the jury not to

recommend a death sentence. Stone thought that a life sentence may be possible if

he and Doud could convince the jury that the murder was not premeditated. 27

Counsel decided against presenting evidence of Anderson’s occasional use of

26
Dr. McMahon’s report to Stone was dated October 10, 2000. Dr. McMahon gave
Stone a verbal report with precisely the same information earlier, prior to the commencement of
Anderson’s trial.
27
Stone thought that a jury finding that Anderson never intended a murder to occur
would eliminate the aggravating circumstance that the murder “was committed in a cold,
calculated, and premeditated manner without any pretense of moral or legal justification.” See
Fla. Stat. § 921.141(5)(i).

20
 Case: 11-13921 Date Filed: 05/12/2014 Page: 21 of 65

alcohol and marijuana in the past as potential mitigation, believing that such

evidence would likely be more harmful than helpful.

B.

The trial began on September 25, 2000. In the guilt phase, the State

established the general narrative recited above. The only witness to testify for the

defense was Anderson himself. In his testimony, Anderson admitted committing

the robbery and shooting the tellers. He explained that he had gone to the bank

planning to steal the money he needed to take care of his mother, a disabled cancer

survivor, but that shooting the tellers was not part of his plan. He remembered

taking the tellers to the bank’s vault and firing three shots, but he said the gun went

off accidentally. 28 He denied asking the tellers which one wanted to die first.

On cross-examination, the State demonstrated that Anderson had a clear

recollection of many events that took place in the vault. He remembered ordering

the tellers to get the liner bag out of the trashcan, and he recalled where the two

tellers were positioned in the vault before he fired the shots. He also remembered

firing three shots, not ten, and repeated what he had said on direct examination:

that the gun went off by accident. When asked why the details were “blanking out

28
On cross-examination, in order to undercut Anderson’s assertion that the shooting was
accidental, counsel for the State emphasized that in firing Cunningham’s revolver, one had to
pull back the hammer before each shot and that his mother’s revolver had trigger pull of
seventeen and one-half pounds.

21
 Case: 11-13921 Date Filed: 05/12/2014 Page: 22 of 65

on him,” Anderson responded that “[i]t’s not blanking out, it’s just been how it’s

been for eighteen months.” State Court––Trial Transcript, vol. 16, at 2140.

On October 3, 2000, the jury convicted Anderson of the first-degree murder

of Heather Young, the attempted murder of Marisha Scott, armed bank robbery of

the USB, and grand theft of Cunningham’s revolver

The penalty phase of the trial began on October 5, 2000, and lasted one day.

Anderson’s defense team went to great lengths to find witnesses who could present

mitigating testimony. First, Anderson and his mother separately prepared a list of

potential witnesses. Stone and Doud, with the help of their investigator, Williams,

attempted to contact and interview every person on these lists. Some of these

interviews provided leads to other potential witnesses, who were then contacted

and interviewed. The defense team also spent time in Anderson’s neighborhood

trying to identify witnesses that neither Anderson nor his mother had mentioned.

Some of the potential witnesses they interviewed were reluctant to get involved; at

least four, including the pastor of Anderson’s church, simply refused to testify.

Counsel decided not to call anyone they thought might prejudice Anderson’s case.

The State’s case in the penalty phase was brief. The State began by

informing the jury that it was seeking a death sentence recommendation based on

four aggravating circumstances: (1) Heather Young’s murder was cold, calculated

22
 Case: 11-13921 Date Filed: 05/12/2014 Page: 23 of 65

and premeditated; 29 (2) the murder was committed for pecuniary gain; 30 (3)

Anderson committed the murder after having been convicted of a felony and while

under Community Control; 31 and (4) he had been convicted of a violent felony––

the attempted murder of Marisha Scott.32

After pointing to the evidence presented in the guilt phase, which the State

said established the aggravating circumstances it was relying upon, the State called

two witnesses, Heather Young’s long-time boyfriend, David Curbow,33 and her

brother Robert Young. Both testified to Young’s upbeat nature and zest for life.

The defense’s case consisted of the testimony of ten witnesses including

Anderson. The witnesses, mostly family friends, testified that they had known

Anderson for lengthy periods of time and that he was a church-going, helpful

member of the community who often came to a person’s aid without being asked

and without compensation. One of Anderson’s former employers testified that he

had been a model employee. Anderson’s mother testified that he was a wonderful

child who had helped her immensely as her health declined. He was never abused

29
Fla. Stat. § 921.141(5)(i).
30
Id. § 921.141(5)(f).
31
Id. § 921.141(5)(a).
32
Id. § 921(5)(b). Although the attempted murder of Marisha Scott was part of the same
robbery as the murder of Heather Young, “[c]ontemporaneous convictions prior to sentencing
can qualify as previous convictions of violent felony and may be used as aggravating factors.”
Wasko v. State, 505 So. 2d 1314, 1317 (Fla. 1987).
33
Young’s boyfriend, David Curbow, testified that while he and Young were not
married, they considered themselves to be husband and wife.

23
 Case: 11-13921 Date Filed: 05/12/2014 Page: 24 of 65

as a child and was never quick to anger. Anderson testified about his high school

extracurricular activities and his extensive involvement with his church, including

performing a leadership role in numerous youth group events.

The penalty phase of the case concluded with a unanimous jury

recommendation that Anderson receive the death penalty. 34

On January 11, 2001, the court, following the jury’s recommendation,

sentenced Anderson to death. The court found the four aggravating circumstances

the State had asked the jury to find, assigning varying degrees of importance or

“weight” to each: (1) that the capital felony, Heather Young’s murder, was a

homicide and was committed in a cold, calculated, and premeditated manner

without any pretense of moral or legal justification (great weight); (2) that the

capital felony was committed for pecuniary gain (moderate weight); (3) that the

capital felony was committed by a person previously convicted of a felony and

under sentence of imprisonment or placed on Community Control or on felony

34
Pursuant to Fla. Stat. § 921.141(2), the jury was tasked with the following
responsibility:
After hearing all the evidence, the jury shall deliberate and render an advisory
sentence to the court, based upon the following matters:
(a) Whether sufficient aggravating circumstances exist . . .
(b) Whether sufficient mitigating circumstances exist which outweigh the
aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sentenced to
life imprisonment or death.
The court instructed the jury that in order to recommend the imposition of a death sentence, it
had to find the existence of at least one aggravating factor beyond a reasonable doubt.

24
 Case: 11-13921 Date Filed: 05/12/2014 Page: 25 of 65

probation (little weight); and (4) that that the defendant was convicted of a

previous violent felony, the attempted murder of Marisha Scott (great weight).

The court found no statutory mitigating circumstances,35 and ten non-

statutory mitigating circumstances, again assigning a separate degree of

importance or weight to each.36 After sentencing Anderson to death for the capital

murder, the court sentenced him to life imprisonment for the attempted murder of

Marisha Scott, life imprisonment for robbing the bank with a firearm, and five

years’ imprisonment for the grand theft of Cunningham’s revolver.

35
Under Fla. Stat. § 921.141(6),

Mitigating circumstances [are]:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence
of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the
act.
(d) The defendant was an accomplice in the capital felony committed by another
person and his or her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination
of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her
conduct or to conform his or her conduct to the requirements of law was
substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant’s background that would mitigate
against imposition of the death penalty.
36
The 10 non-statutory mitigating circumstances were (1) remorse for conduct
(moderate weight); (2) cooperation with law enforcement (some weight); (3) strong religious
faith and involvement in church activities (substantial weight); (4) strong community
involvement (moderate weight); (5) loving relationship with family (little weight); (6)
employment history (little weight); (7) potential for rehabilitation (little weight); (8) no prior
history of violence (substantial weight); (9) appropriate courtroom demeanor (little weight); and
(10) willingness to plead (little weight).

25
 Case: 11-13921 Date Filed: 05/12/2014 Page: 26 of 65

C.

Anderson appealed his convictions and death sentence to the Florida

Supreme Court, seeking a new trial or alternatively the imposition of a sentence of

life imprisonment for the murder.37 The Supreme Court rejected claims of error

and affirmed his convictions and death sentence. Anderson v. State, 863 So. 2d

169 (Fla. 2003). Referring to the sentence, the court “specifically not[ed] that the

jury recommended the death sentence by a unanimous vote and one of the

aggravating factors found by the trial judge was that Anderson had been convicted

of a prior violent felony for the contemporaneous conviction of the attempted

murder of Scott.” Id. at 189. Anderson sought certiorari review of the Florida

Supreme Court’s decision in the United States Supreme Court, but his petition was

denied. Anderson v. Florida, 541 U.S. 940, 124 S. Ct. 1662, 158 L. Ed. 2d 363

(2004).

III.

Unable to obtain relief for his convictions and death sentence from either the

Florida Supreme Court or the United States Supreme Court, Anderson, represented

by Capital Collateral Counsel, 38 returned to the Lake County Circuit Court seeking

collateral relief pursuant to Florida Rule of Criminal Procedure 3.851. On March
37
Only one of the issues he raised is before us in this appeal, and we dispose of it
summarily in note 6, supra.
38
Anderson’s counsel on collateral attack was David R. Gemmer, Assistant Capital
Collateral Regional Counsel.

26
 Case: 11-13921 Date Filed: 05/12/2014 Page: 27 of 65

18, 2005, Anderson moved the court 39 to vacate his convictions and death sentence

on several grounds including the one before us in this appeal, a claim that he

received ineffective assistance of counsel during the penalty phase of his case.

Anderson alleged that his attorneys’ performance during that phase failed to

comport with the Sixth Amendment standard for effective assistance of counsel

established by the United States Supreme Court in Strickland v. Washington and

that this failure prejudiced his defense. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,

80 L. Ed. 2d 674 (1984). The attorneys’ performance was deficient, Anderson

alleged, for two reasons: (1) his attorneys failed to uncover and present to the jury

evidence that he was sexually abused as a child by his cousin, Michael Green; and

(2) the attorneys failed to discover that he suffered from brain damage, borderline

personality disorder, and post-traumatic stress disorder, caused by the sexual

abuse. Anderson posited that these failures precluded counsel from establishing

two statutory mitigating circumstances: (1) that he was “under the influence of

extreme mental or emotional disturbance”; and (2) that his “capacity . . . to

appreciate the criminality of his . . . conduct or to conform his . . . conduct to the

requirements of law was substantially impaired.” Fla. Stat. § 921.141(6)(b), (f).

Presenting those mitigating circumstances to the jury, Anderson argued, would

39
Anderson presented his motion to the judge who presided over his prosecution and
sentencing.

27
 Case: 11-13921 Date Filed: 05/12/2014 Page: 28 of 65

have made it likely that the outcome of penalty phase of his trial would have been

different.

A.

The Circuit Court held an evidentiary hearing on Anderson’s motion from

January 23 to 25, 2006. Anderson presented evidence that, as a child, he had been

the victim of Michael Green’s sexual abuse and that the shooting that took place in

the USB’s vault was caused by his post-traumatic stress disorder, borderline

personality disorder, brain damage, and the effects of his chronic drug use. This

evidence came in the form of testimony from his cousin, Raymond Green, and two

mental health experts, Drs. Jorge Villalba and Robert Berland, whom post-

conviction counsel had retained to evaluate Anderson. Anderson also called Dr.

Elizabeth McMahon to question her about the evaluation she performed on him

prior to trial.40

Raymond Green testified that he spent time with Anderson during their

childhood since Green’s maternal grandmother lived just across the street from the

Andersons. On occasion, Anderson would spend the night with Green at his

grandmother’s home, sleeping with Green in his bedroom.

40
Anderson also called as witnesses Assistant Public Defenders William H. Stone and
Clinton L. Doud, Investigator J.T. Williams, and Karen Nelson, the bailiff who worked during
his trial. Nelson’s testimony has no relevance to the issues here.

28
 Case: 11-13921 Date Filed: 05/12/2014 Page: 29 of 65

Raymond said that Michael Green, his uncle who was eight year older than

he was, lived with his grandmother. When Raymond was only five years old,

Michael began forcing him to perform oral sex in Michael’s bedroom at night.

When Anderson was there, Michael would do the same thing to him. According to

Raymond, Michael would, on occasion, anally rape Anderson when Anderson was

staying in Raymond’s room.

Dr. Villalba, a psychiatrist board certified in forensic psychiatry, 41 testified

that Anderson suffered from post-traumatic stress disorder as a result of Michael

Green’s sexual abuse, as well as borderline personality disorder. In Villalba’s

opinion, Anderson was under the influence of extreme mental and emotional

disturbance at the time of the shooting.

Villalba based his opinion on a four-hour session with Anderson, a review of

Anderson’s videotaped interrogations by the police, and a Personality Assessment

Inventory (“PAI”). 42 By his estimate, half of his conclusions were based on

Anderson’s self-reported symptoms and the other half on the results of the PAI.

Dr. Villalba said that Anderson’s history of childhood sexual abuse left him

with post-traumatic stress disorder which caused him to suffer from dissociative

episodes. He described these dissociative episodes as a dream-like state “where
41
Dr. Villalba had been board certified for one year. Anderson’s was the first capital
murder case in which he had been involved.
42
Dr. Villalba testified that a PAI is similar to the MMPI-2 but that he wanted to try a test
that had not been given to Anderson in the past.

29
 Case: 11-13921 Date Filed: 05/12/2014 Page: 30 of 65

one feel[s] like things are not real.” State Court––Collateral Appeal Record, vol. 9,

at 1505. Although Dr. Villalba acknowledged that Anderson had taken many

deliberate steps in preparation for the robbery, he opined that “the intense level of

stress during the actual committing of the robbery would be a precipitating or

contributing factor to the dissociation.” Id. at 1506. Dr. Villalba also stated that

Anderson told him that one of the bank tellers closed the glass vault door on his

hand and one of them may have called him a “stupid . . . derogatory racial ‘N’

word.”43 Id. at 1532. Dr. Villalba postulated that this might have triggered the

onset of a post-traumatic stress disorder dissociative episode.

On cross-examination, Dr. Villalba admitted that manipulative behavior was

typical for those with borderline personality disorder such as Anderson’s and that

Anderson had an incentive to make his mental health appear worse than it actually

was.

Dr. Berland, a forensic psychologist with twenty-seven years’ experience,

testified that Anderson suffered from a psychotic disturbance while in the bank’s

vault such that his capacity to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was substantially impaired.

43
When asked on cross-examination whether he had reviewed the trial record for any
support for either of these assertions, Dr. Villalba said he had not. In fact, there is no support in
the trial record for either assertion. During his testimony in the collateral attack evidentiary
hearing, Stone testified that Anderson had never said anything about the tellers calling him
stupid or a racial slur even though Stone had directly asked him about provocation looking for
evidence of this sort.

30
 Case: 11-13921 Date Filed: 05/12/2014 Page: 31 of 65

Dr. Berland met with Anderson for a total of four hours and administered no

tests of his own; he relied, instead, on the tests Dr. McMahon administered when

she evaluated Anderson prior to trial. Based on his time with Anderson and his

analysis of Dr. McMahon’s test results, Dr. Berland concluded that Anderson had

suffered brain injury from a head-on car accident that Anderson said he had been

involved in at age twenty-two. Although Anderson informed Dr. Berland about

the accident, 44 he failed to mention it in responding to the Questionnaire inquiries

about head injuries.

Anderson told Dr. Berland about mental health problems that he had omitted

from the Questionnaire, including that “for a long time [he had] experienced the

feeling that people in public places were either watching him or talking about him

as he passed” and that he often heard voices calling his name. Id. at 1558–59.

Based on these self-reported symptoms and his analysis of the tests Dr. McMahon

administered,45 Dr. Berland opined that Anderson suffered from brain damage that

44
Dr. Berland’s investigator confirmed Anderson’s description of the episode by
interviewing the passenger in the car, Marty Kirens. Dr. Berland thereafter asked Anderson’s
mother about the accident. She said that it occurred after Anderson had been admitted to college.
She described that for several days following the accident, Anderson had headaches, nausea and
vomiting, and memory problems and that he would stare off into space for long periods of time
apparently looking right through her. She also noted that he would become angry over little
things, show symptoms of vision problems, and display a hand tremor that lasted two or three
months. This account stands in contrast to her testimony at trial which portrayed Anderson as
always healthy and never quick to anger.
45
Dr. Berland based his conclusion primarily on the results Dr. McMahon obtained from
the MMPI-2 and the WAIS-R she administered to Anderson prior to trial.

31
 Case: 11-13921 Date Filed: 05/12/2014 Page: 32 of 65

had “either caused or contributed” to a psychotic disturbance in the bank’s vault.

Id. at 1563.

Dr. Berland also testified that Anderson had a serious alcohol and marijuana

abuse problem. Anderson told Dr. Berland that he was part of a group called the

“Breakfast Club” that met every morning, usually at his friend Kerry

Cunningham’s house, to consume copious amounts of beer and marijuana. Dr.

Berland met with Cunningham to ask him about these meetings. Cunningham

denied that the Breakfast Club ever existed, claiming that on the rare occasion

when the two got together, they merely drank beer. Dr. Berland admitted, on

cross-examination by the State, that Anderson had a “pretty strong incentive” to

mislead him, and that Anderson had “a substantial history of deceiving and

misleading people over the course of his life.” Id. at 1618–19.

Anderson called Dr. McMahon to explain the battery of tests she had

performed on Anderson prior to trial and the conclusions she had reached. On

cross-examination by the State, Dr. McMahon was asked about the conclusions

reached by Drs. Villalba and Berland. She stated that, even taking into account the

information Anderson provided to Drs. Villalba and Berland but not to her, she

saw nothing to suggest that Anderson had brain damage 46 and borderline

46
Dr. McMahon felt that Dr. Berland inappropriately interpreted the results she had
obtained from the MMPI-2 that she administered to Anderson. In her opinion, all of the results
of that test were within normal limits and only reflected anxiety rather than a psychosis.

32
 Case: 11-13921 Date Filed: 05/12/2014 Page: 33 of 65

personality disorder47 or that his actions at the bank were caused by post-traumatic

stress disorder from being sexually abused as a child.48 Dr. McMahon also

testified that, while she had been retained to evaluate Anderson closer to his trial

date than is typical, she had adequate time to thoroughly evaluate his mental

health.

As part of its rebuttal to Anderson’s ineffective assistance of counsel claim,

the State called Dr. Harry McClaren, 49 whom the State employed in response to

the claims of Anderson’s Rule 3.851 motion. Dr. McClaren testified that in

preparing for the evidentiary hearing, he conducted an exhaustive investigation

into Anderson’s mental health. He began by interviewing Anderson twice. He

thereafter interviewed several police officers, Anderson’s trial attorneys,

Anderson’s mother, Kerry Cunningham, and Dr. McMahon. In addition, he read

47
Dr. McMahon reasoned that if Anderson suffered from borderline personality disorder,
the disorder would have been revealed in the MMPI-2 and WAIS-R tests. Based on her analysis
of these tests’ results, however, the disorder was not shown. Moreover, nothing in Anderson’s
Rorschach test results indicated that he had the disorder.
48
According to Dr. McMahon,
PTSD . . . occurs when something that’s happening in the here and now is reflective of or
brings forth memory of what happened in the past. Obviously with people in war time
when a car backfires it sounds like a gun firing. There’s got to be a similarity. So unless
[Anderson] can show me some similarity between being in that bank vault and being
molested by his cousin, I’ve got to say that he may have PTSD, [but there would have to
be some showing of] what way . . . being in the bank vault reminded him of some
interaction with his cousin for it to be pertinent.
State Court––Collateral Appeal Record, vol. 10, at 1644.
49
Dr. McClaren had been involved in hundreds of capital cases, working at the behest of
both the prosecution and the defense.

33
 Case: 11-13921 Date Filed: 05/12/2014 Page: 34 of 65

the transcripts and viewed the videotape of the police interrogations of Anderson.

He also read the transcript of Anderson’s trial, the briefs filed in his direct appeal

to the Florida Supreme Court and that court’s decision, Anderson’s high school

and college records, his medical records, his criminal history records, and Drs.

Villalba’s and Berland’s reports. Furthermore, after interviewing Anderson, he

had Anderson take a full battery of psychological tests 50 and analyzed the results of

those tests.

According to Dr. McClaren, nothing in his investigation led him to conclude

that Anderson had brain damage, post-traumatic stress disorder, borderline

personality disorder, or experienced a psychotic episode in the bank’s vault. Dr.

McClaren also suggested that the inconsistencies in Anderson’s stories might

reflect an attempt by Anderson to mislead the court. In making this suggestion, Dr.

McClaren emphasized Anderson’s “track record of deception.”51 Dr. McClaren

50
McClaren prescribed an MMPI-2; a Wechsler Adult Intelligence Scale–Third Edition
(WAIS-3); a Rotter Incomplete Sentences Blank (RISB); and a Millon Clinical Multiaxial
Inventory–Third Edition (MCMI-3).
51
Dr. McClaren explained that this “track record” included Anderson’s embezzlement
from Bethune-Cookman, his history of writing bad checks, his misrepresentations to his mother
about graduating from college and his legal problems in Volusia county, his denying a history
sex abuse in responding to the Questionnaire, his inconsistent statements to the different mental
health professionals who evaluated him, his claim at the USB that he was a student at Valencia
Community College, his representations to the probation officers that he had obtained the
balance of the restitution he owed Bethune-Cookman when he had not, his purchase of orange
juice and donuts as a supposed thank you for the bank tellers’ time, his representation to the
arresting officers that he was the janitor, the conflict in testimony between Anderson and Kerry
Cunningham about the extent of his substance abuse at the Breakfast Club, and his inconsistent
statements during police interrogation. State Court––Collateral Appeal Record, vol. 11, at 2024.

34
 Case: 11-13921 Date Filed: 05/12/2014 Page: 35 of 65

also noted that Anderson had strong motivation to remember that he fired only

three shots, because if he testified that he remembered all ten, it would mean he

consciously used both revolvers, which would indicate an execution-style murder.

This motivation, according to Dr. McClaren, may also have been the reason for

Anderson’s failure to remember asking the tellers “[w]ho wants to die first?”

On cross-examination by collateral counsel, Dr. McClaren acknowledged

that he had diagnosed Anderson with an anxiety disorder and that post-traumatic

stress disorder was a form of anxiety disorder. He nevertheless maintained that he

saw no link or connection between the sexual abuse Anderson had suffered as a

child and the shooting he had committed at the bank. When asked about the short

interval between Dr. McMahon’s appointment (to evaluate Anderson) and the trial,

Dr. McClaren stated that although a mental health evaluation normally takes place

six months to a year prior to trial, he found nothing in Dr. McMahon’s evaluation

of Anderson that could be considered incomplete in any way.

B.

On January 24, 2007, the Circuit Court issued an order denying in full the

claims Anderson presented in his Rule 3.851 motion. State v. Anderson, No. 99-

572 (Fla. 5th Cir. Ct.). The court found no merit in Anderson’s claim that his

attorneys’ performance in seeking mitigating evidence for presentation to the jury

as constitutionally deficient. The court noted the steps the attorneys took in

35
 Case: 11-13921 Date Filed: 05/12/2014 Page: 36 of 65

preparing for the penalty phase of the case––emphasizing that (1) they employed a

forensic psychologist, Dr. McMahon, to evaluate Anderson’s mental health and

provide, if possible, an explanation for Anderson’s conduct at the bank; and (2)

they interviewed the numerous potential witnesses identified in Anderson’s

response to the Questionnaire and on the lists that he and his mother had prepared.

Turning to the attorneys’ failure to discover the sexual abuse Anderson

experienced at the hands of Michael Green, the court said that counsel “should not

[have been] expected to investigate potential incidents of sexual abuse when

[Anderson] did not suggest any abuse had occurred and actually concealed the

abuse from Counsel and the mental health expert involved in the case.”

C.

Anderson appealed the Circuit Court’s decision to the Supreme Court of

Florida. Anderson v. State, 18 So. 3d 501 (Fla. 2009). Among the issues he raised

was the one we address today: whether he was denied effective assistance of

counsel in the penalty phase of his case. As in the Circuit Court, Anderson argued

that his attorneys’ performance was deficient in two respects: (1) they failed to

uncover and present to the jury evidence of the sexual abuse he suffered from

Michael Green; and (2) they failed to employ Dr. McMahon in time to uncover and

present to the jury the mental health evidence Drs. Villalba and Berland found—

namely, that Anderson had brain damage, borderline personality, and post-

36
 Case: 11-13921 Date Filed: 05/12/2014 Page: 37 of 65

traumatic stress disorder caused by the sexual abuse. The attorneys would have

discovered such evidence, Anderson argued, had they given Dr. McMahon

sufficient time and background information to evaluate Anderson.

Addressing Anderson’s first point, the Florida Supreme Court found

counsel’s failure to uncover the sexual abuse understandable and, moreover,

excusable, “in large part because Anderson himself was a barrier to the discovery

of this evidence.” 52 Id. at 509. The court emphasized that the Questionnaire

counsel had Anderson fill out was facially quite thorough and that Anderson, in

responding to its several questions about sexual abuse, had explicitly denied

having suffered any such abuse. In concluding that Anderson had failed to

demonstrate Strickland prejudice, the court pointed to the Circuit Court’s findings

of four aggravating circumstances, including that the murder was cool, calm, and

premeditated and that Anderson had been convicted of a prior violent felony,

which “are ‘among the weightiest of aggravators.’” Id. at 510 (quoting Deparvine

v. State, 995 So. 2d 351, 381 (Fla. 2008)). Moreover, the fact that the murder of

Heather Young was the result of a bank robbery plan “replete with instances of

deception” further supported the jury’s decision to recommend the death penalty.

Id.

52
In reaching this conclusion, the court pointed to Strickland’s language that “when a
defendant has given counsel reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.” 466 U.S. at 691, 104 S. Ct. at 2066.

37
 Case: 11-13921 Date Filed: 05/12/2014 Page: 38 of 65

Addressing Anderson’s second point, the Supreme Court found that his

attorneys were not deficient in waiting until three weeks before trial to employ Dr.

McMahon and, alternatively, that the alleged delay resulted in no prejudice. Id. at

511–13. The Florida Supreme Court believed that trial counsel’s explanation of

why they delayed Dr. McMahon’s employment was reasonable and that the delay

did not prevent Dr. McMahon from performing a competent and thorough

evaluation. Dr. McMahon testified during the 3.851 evidentiary hearing that she

had sufficient time to perform the task she undertook. Id. at 511 She met with

Anderson on four separate occasions, gave him a full neuropsychological screening

and battery of tests, and had ample time to evaluate the screening and the test

results in conjunction with what she observed in her sessions with Anderson. Id.

She found nothing to explain why Anderson shot the tellers. Drs. Villalba and

Berland found that the shooting was caused by Anderson’s mental deficiencies—a

brain damage induced psychotic disturbance, or a dissociative episode caused by

post-traumatic stress disorder caused by Michael Green’s sexual abuse, or other

mental or emotional deficiency. Dr. McMahon disagreed. In the court’s mind,

“[t]he fact that Anderson has subsequently found experts whose opinions conflict

with McMahon’s does not render her evaluation inadequate.” Id. at 511–12.

“Trial counsel [were] not required to continue searching for an expert who would

give a more favorable assessment of Anderson’s mental status.” Id. at 512.

38
 Case: 11-13921 Date Filed: 05/12/2014 Page: 39 of 65

Assuming, for sake of argument, that counsel’s mental health preparation

did not measure up to Strickland’s performance standard, the Supreme Court

concluded that Anderson had not shown Strickland prejudice. The court

emphasized that the record of the evidentiary hearing revealed strikingly different

expert opinions as to Anderson’s mental health at the time he entered the bank and

committed the offenses for which he was charged. Id. at 513. “Considering the

overwhelming evidence establishing the aggravating circumstances and the

inconclusive opinions regarding Anderson’s mental health, the court’s confidence

in the outcome [was] not undermined.” Id.

IV.

On October 14, 2009, Anderson petitioned the United States District Court

for the Middle District of Florida for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, presenting seventeen claims for relief. Anderson v. Sec’y, Fla. Dep’t of

Corr., No. 09-450, 2011 WL 2784192 (M.D. Fla. July 15, 2011). The District

Court examined his claims through the lens provided by 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA,”) and then denied them. 53 It did so because the Supreme Court of

Florida’s adjudications of Anderson’s claims were neither “contrary to,” nor

53
The court denied Anderson’s claims without an evidentiary hearing after considering
the records of Anderson’s trial and Rule 3.851 post-conviction proceeding and the Florida
Supreme Court’s disposition of his appeals from his convictions and death sentence and from the
Circuit Court’s denial of Rule 3.851 relief.

39
 Case: 11-13921 Date Filed: 05/12/2014 Page: 40 of 65

“involved an unreasonable application of, clearly established” United States

Supreme Court precedent, i.e., the holding in Strickland. Id. at *5.

The District Court found no error in the Supreme Court’s rejection of

Anderson’s claim that his attorneys’ performance during the penalty phase of his

case failed Strickland’s performance test. Id. at *2–4. Like the Supreme Court,

the District Court noted that counsel’s failure to find out about the Michael Green

sexual abuse was caused by Anderson himself, in that he repeatedly denied having

suffered any such abuse. Id. at *3. And counsel’s employment of Dr. McMahon

three weeks prior to trial did not preclude her from conducting a thorough

evaluation into whether he had brain damage or a mental illness that might have

mitigated his behavior. Id. at *4. The District Court was as impressed as the

Florida Supreme Court was with Dr. McMahon’s extensive experience and, in

particular, with the thoroughness of her evaluation of Anderson, which included

conducting sessions with him on multiple occasions, giving him a full battery of

psychological tests, reviewing the evidence the State would present to the jury, and

seeking a mental health explanation for his behavior at the bank—especially in the

vault when the shooting occurred. Id. In the end, the District Court, turning to the

Florida Supreme Court’s resolution of the Strickland prejudice issue, “reviewed the

totality of the mitigation evidence presented at Anderson’s trial and at the post-

conviction proceedings and agree[d] with the Florida Supreme Court that any

40
 Case: 11-13921 Date Filed: 05/12/2014 Page: 41 of 65

mitigating evidence, including any mental health evidence, would not have

changed the result in this case.” Id.

V.

Anderson now appeals the District Court’s decision. To enable the appeal to

go forward, we issued a certificate of appealability on one issue: whether

Anderson’s attorneys rendered ineffective assistance of counsel during the penalty

phase of his case by failing to conduct a reasonable investigation for mitigation

evidence and thereby failing to present to the jury the evidence a reasonable

investigation would have uncovered.54 As the District Court did, we examine this

claim and the Florida Supreme Court’s decision denying it through AEDPA’s lens.

Pursuant to AEDPA, a writ of habeas corpus shall not be granted under 28

U.S.C. § 2254(d) unless the adjudication

54
28 U.S.C. § 2253 provides, in relevant part:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court
...
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.

41
 Case: 11-13921 Date Filed: 05/12/2014 Page: 42 of 65

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

The phrase “clearly established Federal law” refers only to “the holdings, as

opposed to the dicta,” of the Supreme Court decisions extant at the time of the

State court adjudication. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495,

1523, 146 L. Ed. 2d 389 (2000). A State court decision is “contrary to” a Supreme

Court holding “if the state court arrives at a conclusion opposite to that reached by

[the Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially indistinguishable

facts.” Id. at 412–13, 120 S. Ct. at 1523. A State court decision involves an

unreasonable application of a Supreme Court holding if the State court correctly

identifies the holding but unreasonably applies it to the facts of the prisoner’s case.

Id. at 407, 120 S. Ct. at 1520.

An unreasonable application of a Supreme Court holding is different from an

incorrect application of a Supreme Court holding. Harrington v. Richter, __U.S.

__, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011). A federal habeas court might

consider the State court’s application of a Supreme Court holding incorrect were it

reviewing the State court’s decision as an appellate court on direct appeal, but the

42
 Case: 11-13921 Date Filed: 05/12/2014 Page: 43 of 65

habeas court is not conducting such review. AEDPA, having limited the federal

court’s authority to grant the writ, precludes the court from issuing the writ even

when it “concludes in its independent judgment that the state-court decision

applied [the Supreme Court holding] incorrectly.” Woodford v. Visciotti, 537 U.S.

19, 24–25, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002).

Section 2254(d)’s “standard for evaluating state-court rulings” is therefore

“highly deferential,” id. at 24, 123 S. Ct. at 360 (internal quotation marks omitted),

and “difficult to meet.” Harrington, __ U.S. at __, 131 S. Ct. at 786. It “demands

that state-court decisions be given the benefit of the doubt.” Woodford, 537 U.S.

at 24, 123 S. Ct. at 360. To obtain habeas relief, a state prisoner must show that

“there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme] Court’s precedents.” Harrington, __ U.S. at

__, 131 S. Ct. at 786. Put another way, the state court’s ruling must be “so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Id.

The Supreme Court holding governing the disposition of an ineffective

assistance claim, such as Anderson’s, is found in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To make out a claim, the

petitioner must prove that his attorney’s performance was deficient. If deficient,

the petitioner must also show that the deficiency prejudiced his defense, in that it

43
 Case: 11-13921 Date Filed: 05/12/2014 Page: 44 of 65

“deprive[d] [him] of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.

Ct. at 2064. The District Court concluded that the Florida Supreme Court’s

decision denying Anderson’s ineffective assistance claim was neither contrary to,

nor an unreasonable application, of Strickland’s holding. Anderson contends that

the District Court erred, because the Florida Supreme Court’s decision cannot be

squared with Strickland’s holding as the Supreme Court of the United States has

applied the holding in more recent cases. 55

A.

In his petition for a writ of habeas corpus, Anderson alleged that the Florida

Supreme Court unreasonably applied Strickland based on the United States

Supreme Court’s application of Strickland in four cases: Williams v. Taylor, 529

U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), Wiggins v. Smith, 539 U.S.

510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), Rompilla v. Beard, 545 U.S. 374,

125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), and Porter v. McCollum, 558 U.S. 30,

130 S. Ct. 447, 175 L. Ed. 2d 398 (2009). In his brief on appeal, Anderson argues

that in addition to the holdings in these four cases, the Florida Supreme Court

disregarded the American Bar Association (ABA) Guidelines in effect at the time

of Anderson’s trial. Pet’r’s Br. at 27, 30. He submits that the holdings in the four

55
Because the District Court reached its decision on a cold record—the same record now
before this court—we review its decision de novo. Thus, our task, like the District Court’s, is to
determine whether the Florida Supreme Court misapplied controlling United States Supreme
Court precedent. See 28 U.S.C. § 2254(d)(1).

44
 Case: 11-13921 Date Filed: 05/12/2014 Page: 45 of 65

cases and the ABA Guidelines, taken as a whole, demonstrate that his attorneys’

performance in the penalty phase was constitutionally deficient.

Notwithstanding this authority, Anderson’s claim is simply that the Florida

Supreme Court unreasonably applied Strickland. That decision established that a

defendant has a right under the Sixth Amendment to an attorney who performs

reasonably under “professional norms” prevailing at the time and in the location of

the criminal prosecution and in the circumstances of the case. Strickland, 466 U.S.

at 688, 104 S. Ct. at 2065. Williams, Wiggins, Rompilla, and Porter—which post-

date Anderson’s trial and involve trials in states other than Florida––do not provide

separate standards and rules governing attorney competence; rather, they provide

illustrative “application[s] of the principles elucidated in Strickland to a novel set

of facts.” Newland v. Hall, 527 F.3d 1162, 1197 (11th Cir. 2008); see also

Williams, 529 U.S. at 390, 120 S. Ct. at 1511(“[T]he merits of [the Williams]

claim are squarely governed by our holding in Strickland v. Washington.”);

Wiggins, 539 U.S. at 522, 123 S. Ct. at 2536 (“In highlighting counsel’s duty to

investigate [in Williams] . . . we applied the same ‘clearly established’ precedent of

Strickland we apply today.”). These cases are thus relevant only to the extent they

might demonstrate that Anderson’s counsel, confronted with circumstances like

those presented at the time and place of Anderson’s trial, failed to adhere to the

standard of reasonable representation.

45
 Case: 11-13921 Date Filed: 05/12/2014 Page: 46 of 65

The ABA Guidelines do not establish independent standards for counsel;

rather, they are merely guides to be considered in determining whether an

attorney’s conduct was reasonable. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065

(“Prevailing norms as reflected in American Bar Association standards and the like

. . . are guides to determining what is reasonable, but they are only guides.”); see

also Bobby v. Van Hook, 558 U.S. 4, 8–9, 130 S. Ct. 13, 17, 176 L. Ed. 2d 255

(2009) (rejecting the treatment of ABA Guidelines as “inexorable commands with

which all capital defense counsel must fully comply”(internal quotation marks

omitted)). The ABA Guidelines “can be useful as ‘guides’ to what reasonableness

entails, but only to the extent that they describe the professional norms prevailing

when the representation took place.” Van Hook, 558 U.S. at 7, 130 S. Ct. at 16.

Strickland required that Anderson’s attorneys make a reasonable

investigation into “possible mitigating factors and ma[k]e a reasonable effort to

present mitigating evidence to the sentencing court.” Heynard v. McDonough, 459

F.3d 1217, 1242 (11th Cir. 2006); see also Grayson v. Thompson, 257 F.3d 1194,

1225 (11th Cir. 2001). Our assessment of counsel’s performance of this task is

“highly deferential,” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th

Cir. 2007), and contains “‘a strong presumption’ that counsel’s performance was

reasonable and that counsel ‘made all significant decisions in the exercise of

reasonable professional judgment.’” Chandler v. United States, 218 F.3d 1305,

46
 Case: 11-13921 Date Filed: 05/12/2014 Page: 47 of 65

1314 (11th Cir. 2000) (en banc) (quoting Strickland, 466 U.S. at 689–90, 104 S.

Ct. at 2065–66). We must make “every effort . . . 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. at 689, 104 S. Ct. at 2065.

The “burden of establishing that [a] lawyer’s deficient performance

prejudiced [the petitioner’s] case is also high.” Van Poyck v. Fla. Dep’t of Corr.,

290 F.3d 1318, 1322 (11th Cir. 2002). The petitioner cannot prevail simply by

demonstrating that “the erro[r] had some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Rather, the

petitioner must show a reasonable probability “that, absent the error[], the

sentencer . . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2069. Only when

this balancing produces “a probability sufficient to undermine confidence in the

outcome” will relief be granted. Id. at 694, 104 S. Ct. at 2068.

B.

The first aspect of Anderson’s ineffective assistance claim is that his

attorneys were ineffective in failing to discover that, as a child, he had been

sexually abuse by Michael Green and that Raymond Green could have testified to

that fact. He argues that the Florida Supreme Court unreasonably applied

47
 Case: 11-13921 Date Filed: 05/12/2014 Page: 48 of 65

Strickland’s performance prong in rejecting this aspect of his claim. We disagree.

We do so in large part because of Anderson’s multiple denials of having been

sexually abused. Newland, 527 F.3d at 1202 (“In evaluating the reasonableness of

a defense attorney’s investigation, we weigh heavily the information provided by

the defendant.”); see also Chandler, 218 F.3d at 1324 (“The reasonableness of a

trial counsel’s acts, including lack of investigation . . . , depends critically upon

what information the client communicated to counsel.” (internal quotation marks

omitted)). “An attorney does not render ineffective assistance by failing to

discover and develop evidence of childhood abuse that his client does not mention

to him.” Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999); see also

Heynard, 459 F.3d at 1245 (“Given [petitioner’s] multiple denials of any history of

sexual abuse and trial counsel’s extensive and diligent efforts to build a mitigation

case, the Florida Supreme Court’s determination that counsel did not perform

deficiently in this regard was neither ‘contrary to,’ nor ‘an unreasonable

application’ of, United States Supreme Court precedent.”).

Anderson not only failed to mention any instance of sexual abuse, he

actively denied such abuse in his responses to the Questionnaire. Anderson does

not dispute these explicit denials but argues that counsel were nonetheless deficient

in failing to discover the abuse for two reasons––(1) they should not have left the

Questionnaire with him and expected him to answer its questions privately,

48
 Case: 11-13921 Date Filed: 05/12/2014 Page: 49 of 65

without their assistance; and (2) they should have inquired further into the “red

flags” contained in his answers to the questions. Pet’r’s Br. at 30–32. We are not

persuaded.

First, it was not unreasonable for counsel to assume that Anderson would be

forthcoming and truthful in answering the questions presented. Counsel may well

have believed that he would be more forthcoming if given time and space to

answer the questions, free from the pressures of answering them verbally in their

presence. As it turned out, Anderson’s facially complete and thorough answers to

the questions posed indicated that he indeed may have benefitted from having the

time and space to respond. After reading his answers, his attorneys remarked that

the answers were the most thorough and complete they had ever seen.

Second, Anderson suggests that his answers created “red flags” requiring

counsel to inquire further into whether he had been abused as a child. He cites his

answers to two specific sections of the Questionnaire: (1) in the section that asked

how the deaths of any relative and friend he had listed affected him, Anderson

included a description for every single person he had listed other than Michael

Green; and (2) in the section that asked Anderson to underline problems he

experienced as a child, he indicated that he experienced “Extreme Fears,” was

“Accident Prone,” and got “Sick a Lot.” Id. at 31–32. We see no “red flags” here.

49
 Case: 11-13921 Date Filed: 05/12/2014 Page: 50 of 65

Removing hindsight from our perspective, we consider how a reasonable

attorney would have reacted to these answers—answers that appeared to be

thorough, complete, and prepared by a person with every reason to be truthful. A

reasonable attorney would not necessarily assume that Anderson’s failure to

describe the effect Michael Green’s death had on him signaled that he was

withholding evidence of a troubled relationship with Green. Similarly, his mention

of the problems he encountered during childhood would not necessarily lead a

reasonable attorney to assume that he was hiding a history of sexual abuse. See

Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d 1255, 1285 (11th Cir. 2013) (“Trial

counsel cannot be faulted for failing to link [the defendant’s] history of drug abuse

with an otherwise-undisclosed history of child abuse.”). To the contrary,

Anderson’s forthcoming descriptions of the effect the deaths of other family

members had on him and his admission that he experienced the childhood

problems he mentioned would likely lead a reasonable attorney to believe that

Anderson was not withholding any potentially mitigating circumstances.

Anderson attempts to paint his counsel’s facially reasonable behavior as

constitutionally deficient by pointing to the ABA guidelines in effect at the time of

his trial and by analogizing his attorneys’ conduct to the attorney conduct the

Supreme Court faulted in Williams, Wiggins, Rompilla, and Porter. Anderson’s

brief makes no mention of how the standards governing counsel’s performance in

50
 Case: 11-13921 Date Filed: 05/12/2014 Page: 51 of 65

those cases and set out in the ABA Guidelines compare to the standards of

professional competence prevailing in Florida courts at the time of his trial.

Instead, he implies that these four cases and the ABA Guidelines establish a

national standard of professional competence in capital cases.

The Supreme Court has explicitly rejected such an implication. In Van

Hook, the Court reversed the Sixth Circuit per curiam for erroneously substituting

the ABA Guidelines for local, contemporaneous professional norms:

“Restatements of professional standards, we have recognized, can be useful as

‘guides’ to what reasonableness entails, but only to the extent they describe the

professional norms prevailing when the representation took place.” 558 U.S. at 7,

130 S. Ct. at 16. In Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed.

2d 557 (2011), the Court faulted the Ninth Circuit for reading Williams, Wiggins,

and Rompilla as establishing a “constitutional duty to investigate” capital cases in

a particular, prescribed way: “Beyond the general requirement of reasonableness,

‘specific guidelines are not appropriate.’” Id. at __, 131 S. Ct. at 1406 (citations

omitted).

In addition to failing to ground either the ABA Guidelines or the Supreme

Court’s holding in the four cases in a proper Strickland analysis, Anderson fails to

account for the factual distinctions between the attorney behavior faulted in those

sources and his attorneys’ conduct in his case.

51
 Case: 11-13921 Date Filed: 05/12/2014 Page: 52 of 65

First, Anderson cites a portion of the Commentary for Guideline 11.4.2 of

the 1989 ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases. 56 Pet’r’s Br. at 30. The relevant portion reads:

One hurried interview with the client will not reveal to counsel all the facts
counsel needs in order to prepare for a capital trial, appeal, or postconviction
review . . . . Any reluctance on the part of the client to disclose needed
information must be overcome, not a quick or easy task.

Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases guideline 11.4.2 cmt. (1989), available at
http://ambar.org/1989Guidelines.

Anderson’s attorneys went well beyond conducting “one hurried interview” in

preparing for the penalty phase of the case. In addition to having Anderson

respond to the Questionnaire, they conducted several interviews with Anderson

and a host of potential mitigation witnesses, retained Dr. McMahon to perform a

psychological evaluation, and even utilized a psychologist specializing in

hypnotism in an effort to uncover mitigating circumstances that might lead the jury

to forego the death penalty. This kind of professional behavior represents exactly

the type of thorough investigation capital counsel should conduct.

56
Guideline 11.4.2, which deals with client contact, provides as follows:
Trial counsel should maintain close contact with the client throughout preparation of the
case discussing . . . the investigation, potential legal issues that exist or develop, and the
development of a defense theory.
Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases guideline 11.4.2 (1989), available at http://ambar.org/1989Guidelines.

52
 Case: 11-13921 Date Filed: 05/12/2014 Page: 53 of 65

Rompilla says nothing about situations––such as Anderson’s––in which the

defendant’s denials prevent counsel from discovering mitigating evidence.

Newland, 527 F.3d at 1205 (“In Rompilla the defendant’s own contributions to any

mitigation case were minimal, but this was irrelevant to the Court’s decision on

effectiveness.” (internal quotation marks omitted)). Rather, Rompilla focused on

counsel’s failure to examine a readily available file containing information about

the defendant’s prior conviction for rape and assault, despite knowing that the

prosecution planned to use the prior conviction during the penalty phase as an

aggravating factor. 545 U.S. at 383–84, 125 S. Ct. at 2463–64. Anderson’s

argument that his attorneys failed to develop his trust so that he would be

completely forthcoming in responding to the Questionnaire is not analogous to

counsel’s failure in Rompilla. See Newland, 527 F.3d at 1206–07 (“[Counsel’s]

failure to investigate petitioner’s childhood is not analogous to the defense

lawyer’s failure in Rompilla to review a readily available file, which the

prosecution intended to use in aggravation.”).

Williams says little about the standard of professional competence in capital

cases. There was no real dispute in that case that counsel had been ineffective: the

same judge who sentenced Williams also found that counsel’s performance had

been deficient, Williams, 529 U.S. at 370, 120 S. Ct. at 1501, and the Virginia

Supreme Court “assumed, without deciding, that trial counsel had been defective.”

53
 Case: 11-13921 Date Filed: 05/12/2014 Page: 54 of 65

Id. at 371, 120 S. Ct. at 1501. Williams was, instead, a case about the prejudice

element of Strickland; the Virginia Supreme Court was held to have misinterpreted

Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), in

dealing with Strickland’s prejudice prong. Williams, 529 U.S. at 391–95, 120 S.

Ct. 1512–14. In Anderson’s case, the state courts found that counsel performed

effectively, and we are asked to overturn this finding despite the deference we

must accord it under AEDPA. Williams gives us little guidance on this point.

Wiggins involved a situation where counsel failed to consider possible

mitigation strategies despite being on notice of their existence. Counsel received a

one page description of the defendant’s personal history included in the

presentence report, which noted the defendant’s “misery as a youth” and described

his background as “disgusting.” Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536

(internal quotation marks omitted). The attorneys also had a record from the

department of social services which revealed that the defendant’s mother “was a

chronic alcoholic,” the defendant “was shuttled from foster home to foster home,”

and “on at least one occasion, [the defendant’s] mother left him and his siblings

alone for days without food.” Id. at 525, 123 S. Ct. at 2537. Counsel failed to

investigate these leads though “any reasonably competent attorney would have

realized that pursuing these leads was necessary to making an informed choice

among possible defenses.” Id. That is not the situation here. First, the “red flags”

54
 Case: 11-13921 Date Filed: 05/12/2014 Page: 55 of 65

that Anderson points to above were a far cry from the explicit references to a

troubled childhood in Wiggins. Moreover, Anderson’s attempt to compare his own

attorneys’ conduct to the conduct at issue in Wiggins “overlooks a glaring

difference” as “the evidence of abuse in . . . Wiggins was documented extensively

in public records.” Callahan v. Campbell, 427 F.3d 897, 935 (11th Cir. 2005). In

Anderson’s case, “there [were] no similar records of the defendant’s abusive

childhood.” Newland, 527 F.3d at 1206.

Finally, Porter provides guidance for situations where counsel, confronted

with a fatalistic and uncooperative client, conducts a truncated investigation and

presents practically no mitigation evidence at sentencing. There, counsel became

discouraged during the preparation of mitigation evidence because the client was

“fatalistic and uncooperative.” Porter, 558 U.S. at 40, 130 S. Ct. at 453. As a

result, counsel “had only one short meeting with [the client ] regarding the penalty

phase . . . [and] did not obtain any of [his] school, medical, or military service

records . . . .” Id. at 39, 130 S. Ct. at 453. Because counsel ignored “pertinent

avenues for investigation of which [counsel] should have been aware,” the jury in

sentencing “heard almost nothing that would humanize [the defendant] or allow

them to accurately gauge his moral culpability.” Id. at 40–41, 130 S. Ct. at 453–

54. Here, Anderson’s trial team conducted an extensive investigation in preparing

for the guilt and penalty phases of the trial. Their efforts included the use of the

55
 Case: 11-13921 Date Filed: 05/12/2014 Page: 56 of 65

Questionnaire, multiple sessions with Anderson, attempted interviews with every

potential mitigation witness, including all those identified by Anderson and his

mother, and the hiring of an experienced forensic psychologist and a psychologist

expert in hypnotism. In the penalty phase, his attorneys presented the testimony of

ten separate mitigation witnesses, each of whom buttressed the humanization

strategy the attorneys had chosen to pursue. Counsel’s performance stands in stark

contrast to the performance in Porter, where the Supreme Court found counsel

deficient for failing “to conduct some sort of mitigation investigation.” See id. at

40, 130 S. Ct. at 453 (emphasis in original).

Even if we were to assume that the Florida Supreme Court misapplied

Strickland’s performance prong in finding no deficiency in counsel’s failure to

uncover the Michael Green sexual abuse, we would still conclude that the Supreme

Court did not err in denying this sexual abuse aspect of Anderson’s ineffective

assistance claim; for as the Supreme Court properly concluded, he failed to satisfy

Strickland’s prejudice prong. Although evidence of sexual abuse may constitute a

mitigating circumstance, “[w]hen a defendant is several decades removed from the

abuse being offered as mitigation evidence its value is minimal.” Callahan, 427

F.3d at 937. Assuming that the evidence of Anderson’s sexual abuse was added to

the mitigating evidence presented to the jury, it was not unreasonable for the

Florida Supreme Court to conclude, after weighing the aggravating and mitigating

56
 Case: 11-13921 Date Filed: 05/12/2014 Page: 57 of 65

circumstances (including those developed on collateral attack) in the case, that

Anderson failed to demonstrate a substantial probability that the sexual abuse

evidence would have prompted the jury to recommend a sentence of life

imprisonment instead of death. The overwhelming evidence of Anderson’s guilt

further supports our holding. Clisby v. Alabama, 26 F.3d 1054, 1057 (11th Cir.

1994) (“[S]ometimes the best lawyering, not just reasonable lawyering, cannot

convince the sentencer to overlook the facts of a brutal murder––or, even, a less

brutal murder for which there is strong evidence of guilt in fact.”); see also

Crawford v. Head, 311 F.3d 1288, 1321 (11th Cir. 2002) (partially grounding its

finding of no prejudice in the “strength of the evidence both of [the defendant’s]

guilt and of the aggravating circumstances”).

C.

The second aspect of Anderson’s ineffective assistance claim is that his

attorneys should have provided Dr. McMahon with the time and background

information she needed to conduct an adequate mental health evaluation. Had they

done this, Anderson contends, she would have discovered the sort of mitigating

mental health evidence Drs. Villalba and Berland found. In his brief, Anderson

argues that attorneys’ failure to present mitigating evidence like Drs. Villalba and

Berland found fell below prevailing professional norms for two reasons: (1) a

reasonable attorney would have retained Dr. McMahon earlier; and (2) a

57
 Case: 11-13921 Date Filed: 05/12/2014 Page: 58 of 65

reasonable attorney would have informed Dr. McMahon of Anderson’s history of

sexual abuse, drug use, and head trauma. The District Court concluded that the

Florida Supreme Court properly applied Strickland in rejecting this argument.

Anderson’s first point heavily emphasizes Dr. McClaren’s statement that

that mental health experts typically begin evaluating a capital defendant six months

to a year before trial. Anderson contends that counsel’s failure to conform to this

common practice rendered Dr. McMahon unable to discover evidence of the

Michael Green sexual abuse and of Anderson’s psychological illnesses.

Anderson confuses a typical practice with a constitutional norm. Merely

demonstrating that attorneys typically retain mental health experts six months to a

year before trial does not demonstrate that the practice Dr. McClaren described is

constitutionally required. Rather, Anderson had to show that attorneys typically

retained mental health experts within the six-month to one-year time frame because

a failure to do so would render a thorough and effective evaluation unlikely. He

made no such showing. To the contrary, the record suggests that Anderson’s

attorneys gave Dr. McMahon adequate time to evaluate Anderson. She saw

Anderson on four separate occasions for a total of thirteen hours and conducted a

thorough neuropsychological screening. She also gave him a complete battery of

psychological tests. In short, Dr. McMahon testified that she had adequate time to

58
 Case: 11-13921 Date Filed: 05/12/2014 Page: 59 of 65

fully evaluate Anderson. The Florida Supreme Court accepted her testimony, and

had a sufficient basis in the record for doing so.

Anderson’s second point is that counsel were constitutionally deficient in

failing to inform Dr. McMahon of his extensive sexual abuse, drug use, and head

injuries caused by car accidents—information Anderson provided Drs. Villalba

and Berland. Assuming that the information was credible, the Florida Supreme

Court’s rejection of the Anderson’s second point was nonetheless reasonable given

Anderson’s explicit denials of sexual abuse, drug use, and head injuries in

answering the Questionnaire. See Stewart, 476 F.3d at 1211 (“The Constitution

imposes no burden on counsel to scour a defendant’s background for potential

[mitigating evidence] given the defendant’s contrary representations . . . .”).

The Supreme Court’s alternative holding—that counsel’s failure to provide

Dr. McMahon with the information Anderson provided Drs. Villalba and Berland

did not render the outcome of the penalty phase constitutionally suspect—was also

reasonable. Nothing in the record suggests that Dr. McMahon would have

conducted a more thorough evaluation had she been given more time. Anderson

does not quarrel with her examination of him or with the tests she chose to

administer. Instead, he argues that if Dr. McMahon had begun evaluating him

sooner “she would have been able to develop a rapport with him that would have

led to the disclosure of the horrific sexual abuse [he] endured as a child.” Pet’r’s

59
 Case: 11-13921 Date Filed: 05/12/2014 Page: 60 of 65

Br. at 40. This is nothing more than sheer speculation. It falls far short of

establishing a reasonable probability that Dr. McMahon would have uncovered any

additional mitigation evidence, much less “that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104

S. Ct. at 2069.

Dr. McMahon’s testimony makes this clear. At the evidentiary hearing, she

testified that even assuming the credibility of Anderson’s statements to Drs.

Villalba and Berland about childhood sex abuse, head trauma, and severe drug and

alcohol use, her opinion was that he did not have brain damage, borderline

personality disorder, post-traumatic stress disorder, or any other mental health

deficit that would explain his behavior in the bank, especially during the shooting.

See Stewart, 476 F.3d at 1214 (finding no prejudice when the mental health expert

retained by defense for trial and sentencing “testified in the state 3.850 hearing that

information about [the defendant’s] alleged abuse wouldn’t have made any

difference in his final opinion” (internal quotation marks omitted)).

VI.

The District Court did not err in concluding that the Florida Supreme Court

properly applied Strickland v. Washington in denying Anderson’s ineffective

assistance claim. The judgment of the District Court denying Anderson a writ of

habeas corpus is, accordingly,

60
 Case: 11-13921 Date Filed: 05/12/2014 Page: 61 of 65

AFFIRMED.

61
 Case: 11-13921 Date Filed: 05/12/2014 Page: 62 of 65

MARTIN, J., concurring in result only:

I agree with the Majority that the District Court is due to be affirmed on its

denial of Mr. Anderson’s claim that his trial counsel was ineffective for failing to

conduct a reasonable mitigation investigation, and present an adequate mitigation

case. I cannot, however, agree with all of the Majority’s reasoning, so I write

separately.

To begin, the Majority is certainly correct that the Florida Supreme Court’s

adjudication of Mr. Anderson’s penalty phase ineffective assistance of counsel

claim is entitled to deference under the Antiterrorism and Effective Death Penalty

Act (AEDPA). See 28 U.S.C. § 2254(d). At the same time, in order to succeed on

a claim of ineffective assistance of counsel, a habeas petitioner must establish both

deficient performance by his counsel, and that he was prejudiced by his counsel’s

deficient performance. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.

2052, 2069 (1984). Because Mr. Anderson did not establish the first required

element, I would make no decision about the second. Specifically, I would affirm

the District Court’s denial of relief based on its finding that counsel was not

deficient in his performance, and express no opinion about whether Mr. Anderson

was prejudiced under the facts of this case. See id. (“[T]here is no reason for a

court deciding an ineffective assistance claim to approach the inquiry in the same

62
 Case: 11-13921 Date Filed: 05/12/2014 Page: 63 of 65

order or even to address both components of the inquiry if the defendant makes an

insufficient showing on one.”).

I do not share the Majority’s confidence that the Florida Supreme Court

reasonably applied the prejudice prong from Strickland within the meaning of 28

U.S.C. § 2254(d)(1). In particular, I have serious concerns about whether the

Florida Supreme Court reweighed the totality of mitigating evidence against all the

aggravating evidence, old and new. See Porter v. McCollum, 558 U.S. 30, 41, 130

S. Ct. 447, 453–54 (2009) (holding, to assess prejudice in a capital sentencing

proceeding, “we consider ‘the totality of the available mitigation evidence—both

that adduced at trial, and the evidence adduced in the habeas proceeding’—and

‘reweig[h] it against the evidence in aggravation’” (alteration in original) (quoting

Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct. 1495, 1515 (2000)). A

proper reweighing of the evidence should have included both the positive character

evidence presented at trial, as well as the sexual abuse and mental health evidence

presented during the state postconviction proceedings.

My concerns are heightened here by the fact that the mitigating evidence

that Mr. Anderson’s counsel failed to discover (and present to the jury) includes

evidence that Mr. Anderson was violently sexually abused for several years as a

child. The evidence was also that Mr. Anderson developed post-traumatic stress

disorder and other mental health issues as a result of this abuse. Mr. Anderson’s

63
 Case: 11-13921 Date Filed: 05/12/2014 Page: 64 of 65

horrific history of child sexual abuse “is the kind of troubled history that the

[Supreme] Court has ‘declared relevant to assessing a defendant’s moral

culpability.’” Johnson v. Sec’y, DOC, 643 F.3d 907, 936 (11th Cir. 2011) (quoting

Wiggins v. Smith, 539 U.S. 510, 535, 123 S. Ct. 2527, 2542 (2003)).

Neither do I agree with the Majority’s categorical assertion that the

remoteness of Mr. Anderson’s sexual abuse diminishes its weight as mitigation.

Mr. Anderson presented evidence in the state court postconviction proceedings that

he developed post-traumatic stress disorder as a result of being the victim of

violent and repeated sexual abuse. Also, this Court has recognized, albeit in a

different context, the grave and enduring harm that sexual abuse of children inflicts

on its victims:

[T]he victim’s fright, the sense of betrayal, and the nature of her
injuries caused more prolonged physical and mental suffering than,
say, a sudden killing by an unseen assassin. The attack was not just on
her but on her childhood. . . . Rape has a permanent psychological,
emotional, and sometimes physical impact on the child. We cannot
dismiss the years of long anguish that must be endured by the victim
of child rape.

United States v. Irey, 612 F.3d 1160, 1207 (11th Cir. 2010) (en banc) (alteration in

original) (quoting Kennedy v. Louisiana, 554 U.S. 407, 435, 128 S. Ct. 2641, 2658

(2008)).

Despite my reservations about the Majority’s conclusion on prejudice, I do

agree with the Majority’s conclusion that the Florida Supreme Court’s finding of

64
 Case: 11-13921 Date Filed: 05/12/2014 Page: 65 of 65

no deficient performance is entitled to deference. “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” Harrington v.

Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 786 (2011) (quotation marks omitted).

That said, I am troubled that trial counsel simply left a questionnaire with Mr.

Anderson to fill out on his own, which inquired into sensitive aspects of his

background that might be embarrassing, such as child sexual abuse. Child sex

abuse victims often feel shame as a result of the abuse they suffered, and therefore

may be hesitant to reveal it without a more sensitive inquiry. But while this

method of investigation is not a method that should be encouraged for future cases,

the Majority correctly sets out the ways in which counsel conducted a thorough

background investigation and presented a substantial case for mitigation at Mr.

Anderson’s trial. Thus, the Florida Supreme Court’s adjudication of counsel’s

performance was not objectively unreasonable.

65