Case: 12-15188 Date Filed: 01/08/2015 Page: 1 of 48
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No 12-15188
________________________
D.C. Docket No. 6:09-cv-00715-CEH-DAB
RICHARD E. LYNCH,
Petitioner-Appellee
Cross Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellants
Cross Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 8, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
ED CARNES, Chief Judge:
Case: 12-15188 Date Filed: 01/08/2015 Page: 2 of 48
This is an appeal and cross-appeal from a judgment granting in part and
denying in part the federal habeas petition of Florida death row inmate Richard
Lynch. See 28 U.S.C. § 2254. He was sentenced to death in 2001 for the 1999
murder of thirty-year-old Roseanna Morgan and her thirteen-year-old daughter,
Leah Caday. The State of Florida’s appeal is from the part of the judgment
granting Lynch habeas relief based on his claim that he was denied the effective
assistance of counsel because his attorneys advised him, after he had entered a
guilty plea, to waive his right to a jury in the sentence stage of his capital trial.
Lynch cross-appeals the part of the judgment denying three of his other ineffective
assistance claims that he raised in his habeas petition.
I.
Lynch murdered Morgan and Caday on March 5, 1999, because he could not
accept Morgan’s decision to end their extramarital affair. See Lynch v. State, 841
So. 2d 362, 366 (Fla. 2003). The affair had lasted from August 1998 until
February 1999. Id. While it was underway, although Lynch was unemployed and
relied on his wife for financial support, he obtained three credit cards that were
used to make more than $6,000 worth of purchases for Morgan. See Lynch v.
State, 2 So. 3d 47, 66 (Fla. 2008). She ended the affair on February 9, 1999 after
her husband returned from Saudi Arabia where he had been working as a military
contractor. See Lynch, 841 So. 2d at 374. While Morgan moved on, Lynch did
2
Case: 12-15188 Date Filed: 01/08/2015 Page: 3 of 48
not. He began stalking Morgan, hanging around her apartment complex, showing
up at her job, following her on her way home from work, and calling her
apartment. Morgan’s husband confronted Lynch several times and told him to
leave her alone, but it did no good. Lynch persisted.
On March 3, 1999, about three weeks after Morgan had ended the affair,
Lynch wrote a letter to his wife declaring his intention to kill Morgan and then
himself. See id. at 366, 368. In that letter he asked his wife to send Morgan’s
parents copies of the letters and cards Morgan had written to him, as well as nude
pictures of Morgan that he had taken. Id. at 366. He wrote that “I want them to
have a sense of why it happened, some decent closure, a reason and understanding
. . . . I want them to know what she did, the pain she caused, that it was not just a
random act of violence.” Lynch, 2 So. 3d at 64 (emphasis omitted). Lynch went
on in the letter about the debts that had been run up on the credit cards, his fear that
Morgan would not pay him back for any of the purchases, and the pain that she had
caused him by ending their affair. After describing in explicit and unnecessary
detail the various sexual acts he and Morgan had engaged in and how much he had
enjoyed them, on the last page of the letter Lynch apologized to his wife “for all
the pain, suffering, expense, embarrassment and hardship I will cause and give to
you,” but concluded that Morgan “must pay the price.” Lynch left the letter in his
garage.
3
Case: 12-15188 Date Filed: 01/08/2015 Page: 4 of 48
Two days later, on March 5, he packed three pistols and ammunition into a
black bag and drove to Morgan’s apartment. See id. at 59. He parked his car
down the street and around the corner from the apartment complex so that Morgan
and her daughter Caday would not see it when they arrived at the complex. Id.;
Lynch, 841 So. 2d at 367 n.3. Lynch grabbed the bag with the three pistols and
ammunition from the trunk of his car, walked to the complex, and picked an
inconspicuous spot to wait for Morgan to return. See Lynch, 2 So. 3d at 76.
Caday got home first. See id. Lynch talked the thirteen-year-old into letting
him inside by telling her that he wanted to speak with her mother. See id. at 62.
Once inside the apartment, he pulled one of the pistols from the black bag and held
Caday at gunpoint for thirty or forty minutes while waiting for Morgan to arrive.
See Lynch, 841 So. 2d at 366. All the while, the young girl was “terrified.” Id.
She asked Lynch “why he was doing this to her.” Id.
When Morgan finally returned home, Lynch met her at the door with a pistol
in his hand. See Lynch, 2 So. 3d at 59. Sensing what Lynch was going to do,
Morgan refused to come inside. They had a heated discussion, which ended when
Lynch fired seven shots. See id. at 58, 70. Three of the shots hit Morgan in the
legs. See id. at 53, 69–70. One hit her eye and tore through her neck. See id. at
69–70. She fell to the floor in the hallway outside her apartment, bleeding and
screaming for help. See Lynch, 841 So. 2d at 366, 371. Lynch walked outside the
4
Case: 12-15188 Date Filed: 01/08/2015 Page: 5 of 48
apartment into the hallway where Morgan lay, and the door closed behind him. He
dragged Morgan’s bleeding body by her wrist back to the door, where he knocked
and told Morgan’s daughter to “Hurry up, open the door, your mom is hurt.” Id. at
367. When Caday opened the door, Lynch dragged her mother inside, closing the
door behind him. Id.
Inside the apartment, Lynch pulled a second pistol from his bag, and several
minutes after he had first shot Morgan he killed her in front of her daughter by
firing a single, execution-style shot to her head. See id. at 370–73; Lynch, 2 So. 3d
at 69. He then called his wife at their home, Lynch, 841 So. 2d at 366, and told her
he was “sorry for what I’m going to do.” During that phone call, Lynch’s wife
could hear Caday screaming hysterically in the background. See id. at 369. After
Lynch hung up, he killed the young girl by shooting her in the back. See id. at
366.
Lynch then called his wife again. Id. He told her that he had accidentally
shot Caday and told her that he had left a letter in the garage. See id. When that
call ended, Mrs. Lynch dialed 911. She told the operator about Lynch’s phone
calls and asked for the police to investigate. She then began to look for the letter.
Her sister Juliette, whom Mrs. Lynch had paged after Lynch’s first phone call,
arrived at the home and joined in the search. Mrs. Lynch found the letter and
started to read it but was interrupted when her husband called a third time. Both
5
Case: 12-15188 Date Filed: 01/08/2015 Page: 6 of 48
she and Juliette talked to him, begging him not to kill himself. See id. While
Juliette was speaking with Lynch, Mrs. Lynch used her cell phone to call 911
again. She told the operator about the murder-suicide letter she had just found and
that Lynch was willing to turn himself in. After that 911 call ended and Lynch had
ended his call to Mrs. Lynch, she returned to reading the letter he had left. Before
she could finish reading it, several police officers arrived at her home. See Lynch,
2 So. 3d at 68. One officer, after confirming that she was Mrs. Lynch, asked her
for the letter. See id. She did not want to hand it over until she had finished
reading it, but the officer kept asking and she gave him the letter.
While Mrs. Lynch was talking with the officers, Lynch himself called 911.
See Lynch, 841 So. 2d at 370. He talked with the 911 operator for the next thirty
or forty minutes. See Lynch, 2 So. 3d at 57–58. By the time that call began, two
officers were at Morgan’s apartment responding to the neighbors’ reports of shots
fired. The officers attempted to enter the apartment, but quickly retreated when
Lynch fired a shot at them. See Lynch, 841 So. 2d at 366. Eventually, the SWAT
team arrived, there were negotiations, and Lynch gave himself up. Before he did
that, Lynch told the 911 operator that he had killed two people, that he had shot
Morgan to “put her out of her misery,” and that he had fired at the two police
officers who tried to enter the apartment. Id.
6
Case: 12-15188 Date Filed: 01/08/2015 Page: 7 of 48
II.
A Florida grand jury issued a four-count indictment on March 23, 1999,
charging Lynch with: (1) first-degree premeditated murder of Roseanna Morgan;
(2) first-degree premeditated murder of Leah Caday; (3) armed burglary of a
dwelling; and (4) kidnapping. See id. at 365–66. There was a mountain of
evidence against Lynch, piled up stone by stone through the testimony of multiple
witnesses, the presentation of documents, undisputed circumstances, and Lynch’s
own words. It was conclusively proven that: Lynch had barricaded himself inside
Morgan’s apartment, had fired from it at police officers, and when he emerged had
left inside two dead bodies, one of which was riddled with five bullets. The
prosecution also presented: the murder-suicide letter Lynch had written two days
before the murders, the testimony of the neighbor across the hall who saw Lynch
drag Morgan inside the apartment after she had been shot several times, the
testimony of a second neighbor who described the five to seven minute pause
between the two groups of gunshots, the testimony of Mrs. Lynch about his three
phone calls to her, the recording of his own lengthy 911 call, the testimony of the
police negotiator who talked Lynch out of the apartment, and a videotape of
Lynch’s post-arrest interview confessing to the killings. See Lynch, 841 So. 2d at
366–67, 371.
7
Case: 12-15188 Date Filed: 01/08/2015 Page: 8 of 48
Together, the evidence showed that: (1) two days before the murder Lynch
wrote about his intent to kill Morgan; (2) he packed a bag with three loaded pistols
and took them to her apartment; (3) he intentionally parked away from the
apartment complex so that neither victim would see his vehicle and know he was
there; (4) he held the thirteen-year-old Caday in the apartment at gunpoint for
thirty or forty minutes while waiting for Morgan to return home; (5) he shot at
Morgan a total of eight times, hitting her five times; (6) Morgan was still breathing
when he switched to a different pistol and fired the final shot into the back of her
head; (7) he said that he had fired that last shot to “put her out of her misery,” but
he had not done it until five to seven minutes after the first of the five shots he had
fired into her; and (8) Caday watched her mother suffer from the other gunshot
wounds for those five to seven minutes before he killed both of them. Lynch, 2 So.
3d at 53, 59, 66, 69–70; Lynch, 841 So. 2d at 366, 368–69. The only evidence in
Lynch’s favor, if it can be called that, was a few self-serving statements —
sprinkled among his numerous incriminating admissions — in which he claimed
that the initial shots he fired at Morgan through the doorway and the single shot
fired into Caday had been accidental. See, e.g., Lynch, 2 So. 3d at 66. He never
explained how the first pistol had accidentally discharged, not once, not twice, not
three or four times, but seven times. See id. at 68–70; Lynch, 841 So. 2d at 378.
8
Case: 12-15188 Date Filed: 01/08/2015 Page: 9 of 48
Lynch’s two trial attorneys, who had more than twenty-five years of capital
case experience between them, understandably concluded that it would be
impossible to persuade a jury that Lynch had accidentally killed Morgan. See
Lynch, 2 So. 3d at 57–58. They believed from their experience that juries tended
to be quite unsympathetic in the sentence stage to defendants who had murdered
children. See id. at 57, 71. They also knew that the trial judge — Judge O.H.
Eaton, Jr. — was a seasoned jurist and a recognized authority on Florida’s death
penalty procedure, which they believed would make him more receptive to their
mitigation arguments. See id. at 72, 82. For those reasons Lynch’s two
experienced trial counsel advised him to plead guilty to all four counts and waive
his right to a sentence-stage jury. He did so in October 2000. See id. at 52, 70–71;
Lynch, 841 So. 2d at 366.
III.
At the sentence hearing, which was held in January 2001, the defense built
its mitigation case on the testimony of forensic neuropsychologist Dr. Jacquelyn
Olander. See Lynch, 841 So. 2d at 367; Lynch, 2 So. 3d at 72. She testified that
Lynch had a schizoaffective disorder, which was a combination of schizophrenia
and a mood disorder. See Lynch, 841 So. 2d at 367. She concluded that he was
“under the influence of an extreme mental and emotional disturbance” when he
9
Case: 12-15188 Date Filed: 01/08/2015 Page: 10 of 48
committed the murders “and that his psychotic process substantially impaired his
capacity to conform his conduct with the requirements of the law.” Id.
The State called its own expert, psychologist Dr. William Riebsame. See id.
at 374. He agreed with Dr. Olander that Lynch had mental health issues but
disagreed about their severity. See id. In Dr. Riebsame’s opinion, Lynch’s lack of
delusions and his ability to recall the facts of the crime were inconsistent with a
schizoaffective disorder. Id. He concluded that while Lynch was “emotionally
disturbed” he had not been acting under a severe mental or emotional disturbance
during the crimes, and his ability to conform his conduct to the requirements of the
law “was impaired, but not substantially impaired.” Id.
The trial court considered all of the expert testimony, along with the
evidence establishing Lynch’s conduct before, during, and after the murders. See
id. at 368. After having the matter under submission for two months, the court
issued a written order sentencing Lynch to death for each murder. The order
specified three statutory aggravating factors that supported imposing the death
penalty for each of the two murders. See id.
The trial court rested the death sentence for Morgan’s murder in large part
on the fact that Lynch had planned days in advance to kill Morgan and then had
methodically carried out his plan. It placed “great weight” on the statutory
aggravating circumstance that “the murder was cold, calculated, and
10
Case: 12-15188 Date Filed: 01/08/2015 Page: 11 of 48
premeditated.” Id. (applying Fla. Stat. § 921.141(5)(i)). The court put “moderate
weight” on the aggravating circumstance that Lynch “had previously been
convicted of a violent felony.” Id. (applying Fla. Stat. § 921.141(5)(b)). It
reasoned that the previously-convicted-of-a-violent-felony factor applied because
the murder involved multiple victims 1 but decided that factor should receive only
moderate weight because Morgan was the first victim killed. The court also found
the aggravating circumstance that Lynch had committed the murder “while . . .
engaged in committing one or more other felonies.” Id. (applying Fla. Stat.
§ 921.141(5)(d)). It reasoned that the circumstance applied because Lynch had
killed Morgan in the course of committing armed burglary, 2 but it concluded that
the factor should be given little weight since the armed burglary was part of
Lynch’s premeditated plan and thus already covered by the “cold, calculated, and
premeditated” aggravating circumstance.
On the other side of the scale, the trial court found that the only statutory
mitigating factor that applied was the one for “no significant history of prior
criminal activity,” and that it should receive only “moderate weight.” Id. at 368 &
1
In Florida, “a contemporaneous conviction of a violent felony may support the aggravating
factor of prior conviction for a violent felony so long as the two crimes involved multiple victims
or separate episodes.” Stein v. State, 632 So. 2d 1361, 1366 (Fla. 1994). As a result, the
murders of Morgan and Caday each served as an aggravating factor for the other.
2
The Florida Supreme Court’s opinion explains in detail why, under Florida law, Lynch
committed burglary when he reentered the apartment after shooting Morgan. See Lynch, 2 So.
3d at 60–62.
11
Case: 12-15188 Date Filed: 01/08/2015 Page: 12 of 48
n.5. Lynch contended that two more statutory mitigating factors should apply —
that he had committed the murders while “under the influence of extreme mental or
emotional disturbance” and that his capacity “to conform his . . . conduct to the
requirements of law was substantially impaired.” See Fla. Stat. § 921.141(6)(b),
(f). The court determined, however, that the circumstances on which Lynch based
those contentions were entitled to only “moderate weight” as non-statutory
mitigating circumstances because Lynch had not proven that his disturbance or
impairment was great enough to meet the statutory mitigating circumstances
definitions. See Lynch, 841 So. 2d at 374–75. The court also found six other non-
statutory mitigating circumstances for a total of eight. 3
Concluding that the three aggravating factors outweighed the one statutory
mitigating factor and the eight non-statutory mitigating factors, the court sentenced
Lynch to death for the murder of Morgan. See id. at 368 & n.5.
3
Those non-statutory mitigating factors were:
(1) the crime was committed while defendant was under the influence of a mental
or emotional disturbance (moderate weight); (2) the defendant’s capacity to
conform his conduct to the requirements of law was impaired (moderate weight);
(3) the defendant suffered from a mental illness at the time of the offense (little
weight); (4) the defendant was emotionally and physically abused as a child (little
weight); (5) the defendant had a history of alcohol abuse (little weight); (6) the
defendant had adjusted well to incarceration (little weight); (7) the defendant
cooperated with police (moderate weight); (8) the defendant’s expression of
remorse, the fact that he has been a good father to his children, and his intent to
maintain his relationship with his children (little weight).
Lynch, 841 So. 2d at 368 n.5.
12
Case: 12-15188 Date Filed: 01/08/2015 Page: 13 of 48
For Caday’s murder, the trial court’s determination that a death sentence was
warranted centered on the terror that Caday had experienced before she died. The
court placed “great weight” on the fact “that the murder was heinous, atrocious, or
cruel.” Id. at 368 (applying Fla. Stat. § 921.141(5)(h)). It reasoned that the fear
and emotional strain Caday had suffered from the time Lynch talked her into
letting him into the apartment until he shot her to death made her murder heinous.
It noted that Lynch had held the terrified young girl at gunpoint for thirty or forty
minutes before her mother arrived and then shot her mother dead in front of her.
Caday was screaming hysterically during Lynch’s first phone call to his wife.
The court found that Lynch had been “previously convicted of a violent
felony,” id. (applying Fla. Stat. § 921.141(5)(b)), and it placed “great weight” on
that aggravating circumstance because Caday was the second victim killed in a
multiple murder. The court also found the aggravating circumstance that Lynch
had killed Caday while he “was engaged in committing one or more other
felonies,” id. (applying Fla. Stat. § 921.141(5)(d)), because Caday was a minor.4
But it decided that the factor should receive only moderate weight because Caday’s
“killing was an afterthought” and would have been second-degree murder but for
the felony murder rule.
4
The sentencing court explained that: “The [Florida] legislature has made the killing of any
child her age first degree murder.” See State v. Sturdivant, 94 So. 3d 434, 442 (Fla. 2012)
(holding that, under Florida’s felony-murder statute, “a felony-murder conviction [can be]
predicated upon a single act of aggravated child abuse that caused the child’s death”).
13
Case: 12-15188 Date Filed: 01/08/2015 Page: 14 of 48
The court found the same statutory and non-statutory mitigating
circumstances it had in sentencing Lynch for the murder of Morgan, and concluded
that the three aggravating circumstances outweighed that single statutory
mitigating factor and the same eight non-statutory mitigating factors, justifying a
sentence of death for Caday’s murder. See id. at 368 & n.5.
IV.
On direct appeal, the Florida Supreme Court rejected all of Lynch’s many
challenges to his convictions and sentences. See id. at 379. That happened in
2003. Lynch then filed a motion for post-conviction relief raising a new set of
issues. See Lynch, 2 So. 3d at 54–55. Many of those issues turned on the fact that
his trial counsel had not obtained expert testimony showing that Lynch had a brain
impairment. See id. at 54. The evidence that Lynch presented at the state post-
conviction hearing included testimony: from his trial counsel explaining their
representation of Lynch, from the two mental health experts who examined Lynch
before the sentence hearing, and from three new mental health experts who had
examined Lynch since the trial for signs of brain damage. See id. at 74–75. The
state post-conviction court denied Lynch’s petition in October 2006, and the
Florida Supreme Court affirmed that denial in November 2008. See id. at 55–56,
86.
14
Case: 12-15188 Date Filed: 01/08/2015 Page: 15 of 48
In April 2009 Lynch filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. In September 2012 the district court issued an order granting the
petition as to the death sentence based on the claim that Lynch had been denied
effective assistance of counsel when his attorneys advised him to waive a sentence-
stage jury. Lynch v. Sec’y, Dep’t of Corr., 897 F. Supp. 2d 1277, 1306–09, 1351
(M.D. Fla. 2012). The State appealed the grant, while Lynch sought a certificate of
appealability for a cross-appeal of the denial of four additional claims. We granted
him a certificate on three ineffective assistance of counsel claims involving his
assertions that defense counsel had: (1) unreasonably advised Lynch to plead
guilty to all four counts in the indictment; (2) failed to file a Fourth Amendment
suppression motion to exclude his murder-suicide letter at the sentence stage; and
(3) failed to conduct a reasonable mitigation investigation and present available
mitigating circumstance evidence at the sentence stage.
V.
“When reviewing a district court’s grant or denial of habeas relief, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 899
(11th Cir. 2013) (quotation marks omitted).
The Florida Supreme Court denied on the merits all four of the claims that
we are considering, so we review its decision under the standards set by AEDPA.
15
Case: 12-15188 Date Filed: 01/08/2015 Page: 16 of 48
See Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir.
2012). Those standards preclude federal habeas relief unless the state court’s
decision was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;
or (2) . . . was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). That
leaves Lynch with a difficult task. He must show that “no ‘fairminded jurist’ could
agree” with the state court’s decision on an issue of federal law or on an issue of
fact. Holsey, 694 F.3d at 1257 (citing Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 786 (2011)).
Because the three issues raised in Lynch’s cross-appeal precede — either
chronologically or logically — the issue raised in the State’s direct appeal, we
address those three claims first. After that we will address the State’s challenge to
the part of the district court’s judgment granting Lynch relief.
VI.
Lynch’s cross-appeal raises three ineffective assistance claims. The first
claim faults defense counsel for advising him to plead guilty. The second criticizes
defense counsel for failing to file a Fourth Amendment suppression motion to
exclude his murder-suicide letter. And the third claim castigates defense counsel
16
Case: 12-15188 Date Filed: 01/08/2015 Page: 17 of 48
for not procuring and presenting at the sentence stage expert testimony that Lynch
suffers from a brain impairment.
A. Advice to Plead Guilty
Lynch contends that he received ineffective assistance of counsel when his
trial attorneys advised him to plead guilty to all four counts in the indictment. He
argues that the advice to plead guilty was deficient because he had potential
defenses to the charges of first-degree murder, burglary, and kidnapping. To
succeed on this claim, Lynch must prove that: (1) counsel’s advice was deficient;
and (2) “but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366,
370 (1985).
The Florida Supreme Court held that Lynch failed to satisfy either prong of
Hill. It concluded that counsel’s advice to plead guilty and “concentrate on
presenting compelling mitigation evidence” was a “reasonable strategic
determination” given the “overwhelming evidence” of Lynch’s guilt on all four
charges. Lynch, 2 So. 3d at 57. The court then addressed the prejudice question.
The defenses that Lynch claimed his counsel failed to inform him about were not
affirmative defenses but instead were all based on the absence of an element of the
crime. He faulted counsel for not telling him that: (1) lack of intent was a defense
to first-degree murder, (2) entry with consent was a defense to burglary, and
17
Case: 12-15188 Date Filed: 01/08/2015 Page: 18 of 48
(3) kidnapping requires the confinement of the victim to be both significant and not
incidental to another crime. See id. at 57–62. The Florida Supreme Court
concluded that Lynch was not prejudiced by counsel’s alleged failings because the
evidence clearly established all of the elements of all three offenses. See id. at 59–
63.
The district court held that the Florida Supreme Court’s application of Hill
was reasonable, in part, because Lynch had not established prejudice. Lynch, 897
F. Supp. 2d at 1328–33. We agree.5 The evidence of Lynch’s guilt, which we
have already recounted, was overwhelming. See supra Part II. And the Florida
Supreme Court’s thorough assessment of the evidence and the facts it established
convinces us that Lynch had no viable innocence defense at trial. See Lynch, 2 So.
3d at 59–63. He was not prejudiced by his attorneys’ alleged failure to inform him
of possible defenses, and his claim to the contrary completely lacks merit.
Lynch does not challenge the Florida Supreme Court’s explanation about
why he had no viable defenses to the charges. Instead, he asserts that the court
unreasonably applied Hill by focusing on whether Lynch’s defenses likely would
have prevailed at trial. That is, however, what Hill instructs courts to do in
5
Because we conclude that the Florida Supreme Court’s prejudice determination was
reasonable, we need not consider its assessment of trial counsel’s performance. See Strickland v.
Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984) (“[A] court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.”).
18
Case: 12-15188 Date Filed: 01/08/2015 Page: 19 of 48
determining whether the defendant would have insisted on going to trial. See 474
U.S. at 59, 106 S. Ct. at 371 (“[W]here the alleged error of counsel is a failure to
advise the defendant of a potential affirmative defense to the crime charged, the
resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative
defense likely would have succeeded at trial.”).6 The Florida Supreme Court did
not unreasonably apply Hill. 7
Lynch also claims that counsel were ineffective for advising him to enter “a
blind guilty plea,” which is one entered without any benefit in return from the
prosecution. In support of this claim, he cites our decision in Esslinger v. Davis,
44 F.3d 1515 (11th Cir. 1995). But Esslinger expressly disclaims the broad
proposition for which Lynch cites it. See id. at 1530 (“We do not hold that an
attorney who recommends a blind plea inherently fails to perform as required by
the Sixth Amendment.”) (emphasis added). In that case, counsel had failed to
6
It makes no difference whether or not the defenses to which Lynch points are, like those in
Hill, affirmative defenses. Hill makes clear that the prejudice inquiry in a case like this turns
largely on an assessment of whether the defense likely would have changed the outcome at trial.
See 474 U.S. at 59–60; 106 S. Ct. at 370–71.
7
Lynch argues that the Florida Supreme Court should have considered two other factors in
assessing prejudice. First, he argues that he never completed high school, and claims that he was
severely mentally ill, brain damaged, and had no prior experience with the judicial system. None
of those personal characteristics would have affected the probability that Lynch could have
negated one of the essential elements of the charges he faced. See Hill, 474 U.S. at 60, 106 S.
Ct. at 371. Next, Lynch cites the post-conviction hearing testimony of his lead trial counsel that
having evidence of Lynch’s brain damage “may have” impacted his advice that Lynch plead
guilty. But that does not speak to the central question, which is whether the three asserted
defenses (that trial counsel failed to advise Lynch about) would have succeeded at trial. See id.
19
Case: 12-15188 Date Filed: 01/08/2015 Page: 20 of 48
adequately research the defendant’s prior criminal history before advising him to
plead guilty to first-degree rape. See id. at 1529–30. As a result, the defendant
pleaded guilty because he believed that he would get a ten-year sentence, only to
discover at the sentence hearing that his prior convictions triggered a statutorily
mandated minimum sentence of ninety-nine years. Id. at 1517–18. We held that
Esslinger was denied the effective assistance of counsel because the evidence
established a reasonable probability that he would not have pleaded guilty to first-
degree rape if his counsel had advised him that doing so would result in a
minimum ninety-nine-year sentence. See id. at 1529–30. Lynch has not
established such a probability here, and thus his claim fails.
B. Not Filing a Motion to Suppress the Murder-Suicide Letter
Lynch also contends that his trial counsel were ineffective for failing to file a
motion to suppress the murder-suicide letter on Fourth Amendment grounds and
prevent it from being used at the sentence stage.8 He argues that counsel should
have challenged the police’s entry into the Lynches’ home as an unreasonable
search. The Florida Supreme Court denied the claim. See Lynch, 2 So. 3d at 68.
It determined that Mrs. Lynch’s sworn deposition testimony established that:
8
Normally, prisoners cannot raise Fourth Amendment issues in a § 2254 petition. See Stone
v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052 (1976). The Supreme Court has held,
however, that federal habeas relief is available to state prisoners if their trial counsel’s failure to
file a Fourth Amendment suppression motion deprived them of their Sixth Amendment right to
the effective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 382–83, 106 S.
Ct. 2574, 2587 (1986).
20
Case: 12-15188 Date Filed: 01/08/2015 Page: 21 of 48
(1) the police officers had consent to enter the Lynches’ home, (2) the officers
already knew about the murder-suicide letter because Mrs. Lynch had told the 911
operator about it, and (3) she was reading the letter in front of the officers when
they asked her for it. Id. The court concluded that those facts showed that the
officers were lawfully present in the home when they saw the letter and had
probable cause to believe it was evidence of a crime — so the seizure was lawful
under the plain view doctrine. See id.
As with all ineffective assistance claims, Lynch has the burden of showing
that his counsel’s performance (or non-performance) was both deficient and
prejudicial. See Green v. Nelson, 595 F.3d 1245, 1251 (11th Cir. 2010). To
establish prejudice based on his attorneys’ failure to seek suppression, Lynch has
the more specific burden of demonstrating “that (1) the underlying Fourth
Amendment issue has merit and (2) there is a ‘reasonable probability that the
verdict would have been different absent the excludable evidence.’” Id. at 1251–
52 (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583
(1986)). Because it is dispositive, we will focus on the question of whether the
underlying Fourth Amendment issue has merit. 9
9
We note that Florida law provides for the exclusion of evidence from a sentence hearing in
a capital case if it was acquired through an unconstitutional search or seizure. See Fla. Stat.
§ 921.141(1); Harich v. State, 437 So. 2d 1082, 1085–86 (Fla. 1983). Therefore, we do not have
to decide whether defendants have a right under the federal Constitution to exclude unlawfully
obtained evidence from the sentence stage of a capital trial.
21
Case: 12-15188 Date Filed: 01/08/2015 Page: 22 of 48
Lynch has not established the merits of his claim that the officers’ entry into
the Lynches’ home was an unconstitutional search. Police may search a home
without a warrant if they “obtain the voluntary consent of an occupant who shares,
or is reasonably believed to share, authority over the area.” Georgia v. Randolph,
547 U.S. 103, 106, 126 S. Ct. 1515, 1518 (2006). The Florida Supreme Court
determined that the officers had consent to enter the Lynches’ home, see Lynch, 2
So. 3d at 68, and that determination is not objectively unreasonable, see 28 U.S.C.
§ 2254(d)(2). As the district court pointed out, Mrs. Lynch’s deposition “does not
explicitly state whether she invited the police into her home,” but it supports a
finding that she did. Lynch, 897 F. Supp. 2d at 1313. Mrs. Lynch testified that she
called 911, told them that her husband claimed to have killed someone, and asked
them to investigate. Id. She also explained that, when the officer asked her for the
letter, she “thought he was there to investigate or something.” At the state post-
conviction hearing, lead trial counsel testified that “my understanding [was] the
search of the home occurred first while they’re still on the phone with him, or
shortly thereafter, and the wife is home and she gives them permission to enter.”
Together, those statements support the Florida Supreme Court’s factual
determination that the police got Mrs. Lynch’s consent before entering the home.
Lynch does not point to anything in the record that shows that determination was
22
Case: 12-15188 Date Filed: 01/08/2015 Page: 23 of 48
objectively unreasonable, which is his burden as a habeas petitioner. See Green,
595 F.3d at 1251. His failure to do so is fatal to his claim.
C. Investigation of Brain Impairment Evidence
Lynch also claims that his trial attorneys were ineffective for not discovering
and presenting evidence that he suffers from a brain impairment, and if they had,
there is a reasonable probability that he would not have been sentenced to death.
To better understand this issue, we first explain in detail the expert opinion
evidence that trial counsel discovered, that which they presented at the sentence
stage, and the additional expert opinion evidence that collateral counsel discovered
and presented in Lynch’s state post-conviction proceedings.
1. Counsel’s Investigation, the Expert Testimony at the Sentence Stage,
and the Testimony at the State Post-Conviction Hearing
The first expert Lynch’s attorneys hired in preparation for the sentence
hearing was Dr. David Cox, a clinical neuropsychologist. See Lynch, 2 So. 3d at
74. After examining Lynch, he diagnosed him with cognitive disorder NOS (not
otherwise specified) and a possible paranoid personality disorder. Id. Dr. Cox’s
report also noted that Lynch might have a “cerebral dysfunction” and
recommended neuropsychological testing to determine if he did. See id.
Trial counsel were not satisfied with Dr. Cox’s report, so they brought in Dr.
Olander, a forensic neuropsychologist, to evaluate Lynch. Id. While they told Dr.
Olander that Dr. Cox had already evaluated Lynch, they did not tell her that his
23
Case: 12-15188 Date Filed: 01/08/2015 Page: 24 of 48
“cognitive testing suggest[ed] possible cerebral dysfunction in the form of
significant right hemisphere weakness.” See id. Nor did they mention that Dr.
Cox had recommended neuropsychological testing “to determine if there is further
deficiency not detected by the intelligence and memory screening testing already
conducted.” See id.
Based on her personal respect for Dr. Cox and her belief that trial counsel
would have informed her if Dr. Cox had found any signs of impairment, Dr.
Olander assumed that he had already ruled out cognitive impairment. Id. As a
result, she did not perform any neuropsychological testing, but limited her
evaluation to psychological testing and diagnosed Lynch with a schizoaffective
disorder. Id. Dr. Olander testified at the sentence hearing “that Lynch did not
have any brain impairment.” Id.
Through his collateral counsel, Lynch presented evidence at his state post-
conviction hearing that he had a brain impairment. Five mental health experts
testified for Lynch at that hearing. Dr. Cox testified that Lynch “had a dysfunction
of thinking skills, ‘quite likely due to a brain damage situation.’” Lynch, 897 F.
Supp. 2d at 1300.
Dr. Olander testified at the hearing that she had not tested Lynch for brain
damage before the sentence stage of his trial based partly on her assumption that
his trial counsel would have informed her if Dr. Cox had recommended doing that.
24
Case: 12-15188 Date Filed: 01/08/2015 Page: 25 of 48
Id. She then explained that if she had known Lynch had brain damage it would
have changed her testimony at the sentence hearing. She would have instead
testified that brain damage “would have had a significant impact on [Lynch’s] self
control and would have added weight to the emotional state [he] was experiencing
at the time of the murders.” Id.
Dr. David McCraney, a neurologist, testified at the state post-conviction
hearing that Lynch “had frontal lobe and right hemisphere brain damage and
suffered from psychosis.” Id. He said that Lynch had likely suffered from those
conditions his entire life, but that certain “stressors” — such as the credit card debt
and his failing marriage — could have undermined Lynch’s “ability to compensate
for his cognitive impairment.” Id. Dr. McCraney called Lynch’s combination of
brain impairment and emotional stressors “the perfect storm.” Id. at 1303 n.4.
Dr. Joseph Wu, a psychiatrist, testified at the state post-conviction hearing
that after analyzing PET scans of Lynch’s brain he had identified “an abnormality
in the distribution of activity in the frontal lobe of the brain relative to the back of
the brain.” Id. at 1300. Finally, Dr. Joseph Sesta, a neuropsychologist, testified
that Lynch “suffered from mild brain impairment and possible psychosis.” Id. He
criticized the testing that the State’s mental health expert, Dr. Riebsame, did before
the sentence hearing for failing to follow proper testing protocol. See id. at 1301.
Dr. Sesta concluded that Lynch’s ability to conform his conduct to the law was
25
Case: 12-15188 Date Filed: 01/08/2015 Page: 26 of 48
substantially impaired, but he did not offer an opinion about whether Lynch
suffered from an extreme emotional disturbance. See id. at 1300–01.10
The State countered Lynch’s new expert testimony at the state post-
conviction hearing with two witnesses of its own: Dr. Riebsame and psychiatrist
Dr. Jeffrey Danziger. Testifying to the same findings and opinion he had at the
sentence hearing, Dr. Riebsame explained that he did not find any signs of
psychotic or delusional thinking when he listened to the tape of Lynch’s 911 call,
or when he viewed the videotape of Lynch’s post-arrest interview, or when he
interviewed Lynch. Dr. Riebsame concluded that Lynch understood the
criminality of his actions and that his “ability to conform his conduct to the law
was not substantially impaired.” Id. at 1301.
Dr. Danziger testified at the state post-conviction hearing that the planning
and control Lynch had demonstrated in carrying out the murders and then deciding
to back out of his suicide plan showed that he was able to control his impulses. Id.
Dr. Danziger also concluded that “even if [Lynch] had a mild cognitive
impairment, such an impairment would not have affected his behavior at the time
10
Because the experts Lynch presented at the state post-conviction hearing had different
diagnoses — psychoaffective disorder, right hemisphere brain damage and psychosis, mild brain
impairment and possible psychosis — and Lynch does not focus on any particular one of them
when making his argument under the prejudice prong, we will use “brain impairment” as an
umbrella term covering all of them.
26
Case: 12-15188 Date Filed: 01/08/2015 Page: 27 of 48
of the murders,” and that his ability to conform his conduct to the law was not
substantially impaired when he committed the murders. Id.
2. Lynch’s Challenge Based on Counsel’s Investigation
Lynch contends that the district court erred in denying his ineffective
assistance claim based on trial counsel’s failure to obtain and present expert
evidence that he suffers from a brain impairment. To succeed on this claim, Lynch
must show that his counsel’s failure to do so was (1) objectively unreasonable
under the circumstances and (2) prejudicial to his defense. Strickland v.
Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984). We begin by
discussing the state court’s decision and explaining why it deserves deference
under 28 U.S.C. § 2254.
a.
The Florida Supreme Court denied this ineffective assistance claim on
prejudice grounds. After deciding that the investigation into mitigating
circumstances was deficient because trial counsel knew from Dr. Cox’s report that
“Lynch suffered from some type of cognitive impairment,” yet they “never fully
investigated this condition,” the Florida Supreme Court concluded that trial
counsel’s failure did not prejudice Lynch because the statutory aggravating factors
still far outweighed the mitigating factors. Lynch, 2 So. 3d at 75–77. It found the
testimony of the State’s witness, Dr. Danziger, to be “the most persuasive” of all
27
Case: 12-15188 Date Filed: 01/08/2015 Page: 28 of 48
the expert testimony offered in the post-conviction proceeding because it was
grounded in the facts of the murder and explained how those facts showed
“planning, forethought, [and] organization, not impulsive action.” Id. at 75–76. At
the end of its four-page discussion of Lynch’s new mental health evidence, the
Florida Supreme Court concluded:
Lynch has simply failed to present any evidence connecting any
cognitive condition to his behavior. Even if we fully accepted the
testimony of his postconviction mental-health experts, there has been
little to no testimony establishing that any impairment or
schizoaffective symptoms contributed to his actions on March 5,
1999. Lynch had no prior history of criminal activity but by all
defense accounts has always had this condition. Furthermore, he
thoroughly planned and carried out his memorialized intent to murder
Roseanna Morgan and then demonstrated critical impulse control by
refusing to commit suicide. Cf., e.g., Hoskins v. State, 965 So. 2d 1,
17–18 (Fla. 2007) (affirming death sentence and stating, “the facts
show an element of planning [and] are inconsistent with a claim that
[the defendant] was under the influence of an extreme mental or
emotional disturbance . . . . [Further,] there was no evidence that
because of the frontal lobe impairment [the defendant] could not
appreciate the criminality of his conduct at the time of the murder.”);
Robinson v. State, 761 So. 2d 269, 277–79 (Fla. 1999) (affirming
death sentence despite evidence of mild brain damage where no
evidence existed that the defendant committed the murder as a result
of his condition).
Id. at 77.
Although it ultimately concluded that Lynch had failed to establish the
prejudice element of his ineffective assistance claim, the district court first
determined that the Florida Supreme Court’s decision that there was no prejudice
was not entitled to § 2254(d) deference. See Lynch, 897 F. Supp. 2d at 1303. It
28
Case: 12-15188 Date Filed: 01/08/2015 Page: 29 of 48
did so based entirely on its conclusion that the first sentence in the paragraph
quoted above — the “failed to present any evidence” sentence — was an
objectively unreasonable factual determination. See id.; see also 28 U.S.C.
§ 2254(d)(2). The district court deemed that factual determination unreasonable
because of testimony from Drs. Olander, McCraney, and Sesta, which the court
believed did link the type of brain impairment those experts found in Lynch to an
inability to conform his behavior to the law. See Lynch, 897 F. Supp. 2d at 1303.
Although it reached the right result anyway, the district court erred in getting
there. It erred by not giving the Florida Supreme Court’s decision on the prejudice
element the deference that § 2254(d) requires. The “failed to present any
evidence” sentence in the state court’s opinion comes at the beginning of a
paragraph that explains it, and it comes at the end of four pages of analysis of the
new mental health evidence. See Lynch, 2 So. 3d at 73–77. Lifting that one
sentence off the page and interpreting it in isolation is inconsistent with the
approach required by § 2254(d), one that imposes a “highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given
the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357,
360 (2002) (citation and quotation marks omitted). We have repeatedly cautioned
against “overemphasis on the language of a state court’s rationale” which “would
lead to a ‘grading papers’ approach that is outmoded in the post-AEDPA era.”
29
Case: 12-15188 Date Filed: 01/08/2015 Page: 30 of 48
Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1337 (11th Cir. 2013)
(quoting Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 785 (11th Cir. 2003)).
The district court took the “grading papers” approach by red-inking the language in
that one sentence without considering its context in the Florida Supreme Court’s
four-page discussion of Lynch’s new mental health evidence. See Lynch, 897 F.
Supp. 2d at 1303 (interpreting Lynch, 2 So. 3d at 73–77).
When we read that one sentence in the context of the entire paragraph and as
part of the larger four-page discussion, giving the state court the benefit of the
doubt that AEDPA requires, we conclude that what the court actually found was
that Lynch’s experts’ generalized testimony (that his brain impairment rendered
him unable to control his impulses) could not be squared with the facts of the case.
In the three sentences following the one in question, the Florida Supreme Court
explained what it meant. It said that there was “little to no testimony establishing
that any impairment or schizoaffective symptoms contributed to [Lynch’s] actions
on [the day of the murders].” Lynch, 2 So. 3d at 77. There was little or no
evidence of a link because: “Lynch had no prior history of criminal activity but by
all defense accounts has always had this condition. Furthermore, he thoroughly
planned and carried out his memorialized intent to murder Roseanna Morgan and
then demonstrated critical impulse control by refusing to commit suicide.” Id. The
Florida Supreme Court cited one of its decisions for the proposition that facts
30
Case: 12-15188 Date Filed: 01/08/2015 Page: 31 of 48
showing “an element of planning . . . are inconsistent with” claims that the
defendant was acting under “an extreme mental or emotional disturbance” during
the murder. Id. (quoting Hoskins, 965 So. 2d at 17–18).
And that is not all. There are other indications in the state court opinion of
what the sentence in question means. First, the paragraph introducing the four-
page analysis of the new mental health evidence frames the discussion that follows
with this assessment: “Lynch has not connected any cognitive impairment to the
events of [the day of the murder], which, in contrast, reveal a carefully crafted
murder plot.” Id. at 73. In other words, Lynch did not produce evidence
explaining how, given the circumstances of the crime and the facts surrounding it,
his “carefully crafted murder plot” could be the result of psychosis, brain damage,
or any of the other mental problems his experts said he had.
Not only that, but in reviewing the new mental health evidence, the Florida
Supreme Court specifically noted the expert testimony that the district court
thought it had failed to note. The district court justified its conclusion that the
Florida Supreme Court’s factual determination was objectively unreasonable by
citing statements from the testimony of Drs. Olander, McCraney, and Sesta. See
Lynch, 897 F. Supp. 2d at 1303 (citing testimony from those three doctors as proof
that the Florida Supreme Court made an unreasonable factual determination). The
district court’s point was that the Florida Supreme Court must have overlooked
31
Case: 12-15188 Date Filed: 01/08/2015 Page: 32 of 48
those cited statements from the experts’ testimony, all of which supported
mitigating circumstances. See id. Instead of overlooking them, the Florida
Supreme Court explicitly acknowledged those very statements in its review of the
evidence. It stated that:
Drs. Cox, Olander, McCraney, and Sesta (Dr. Wu was not offered for
this purpose) believed that Lynch qualified for the statutory
mitigators, and Dr. Sesta stated that Lynch’s frontal-lobe impairment
is such that some neuropsychologists might have opined that Lynch
was legally insane at the time of the crime, although he would not do
so.
Lynch, 2 So. 3d at 75. It went on to explain that Dr. Danziger’s testimony was
much more persuasive than the testimony from Lynch’s experts because Dr.
Danziger accounted for the actual facts of the murders. It also explained that the
planning and organization that Lynch used to commit the murders undermined his
claim that his actions were attributable to a brain impairment. See id. at 75–76.11
In concluding that the Florida Supreme Court overlooked Lynch’s experts’
testimony, the district court itself overlooked the Florida Supreme Court’s
discussion of that testimony. See Ferguson, 716 F.3d at 1340 (“AEDPA’s
command that we give state courts the benefit of the doubt . . . means, at the least,
that we should avoid finding internal inconsistencies and contradictions in the
11
Compared to the State’s other expert, Dr. Riebsame, the Florida Supreme Court found that:
“Dr. Danziger’s opinion is of much greater value because Dr. Riebsame eventually conceded that
some of his psychological testing of Lynch was invalid due to the nonstandardized fashion in
which the tests were administered.” Lynch, 2 So. 3d at 75.
32
Case: 12-15188 Date Filed: 01/08/2015 Page: 33 of 48
decisions of state courts where they do not necessarily exist.”) (quotation marks
omitted).
Perhaps it would have been clearer, and easier for us, if the “failed to present
any evidence” sentence in the Florida Supreme Court’s opinion had instead said
that Lynch had “failed to present any persuasive evidence connecting any cognitive
condition to his behavior.” But AEDPA does not require that state courts write
every sentence in their opinions with maximum clarity to simplify our task.
Instead, it requires that we give state courts the benefit of the doubt and resolve
ambiguities in their opinions in favor of their judgments, not against them. See id.
When the Florida Supreme Court’s assessment of the expert testimony is
looked at in the light that AEDPA requires, it is far from unreasonable. None of
Lynch’s experts squarely addressed his conduct and statements before, during, and
after the murders and explained how they could be squared with a diagnosis of
brain impairment. The district court’s reasoning does not dissuade us from our
conclusion. Its opinion focused on three general statements about brain
impairment that were taken from the testimony of three of Lynch’s testifying
experts. See Lynch, 897 F. Supp. 2d at 1303. Considering each of those
statements against the undisputed historical facts shows that, just as the Florida
Supreme Court recognized, none of Lynch’s experts explained how their diagnosis
33
Case: 12-15188 Date Filed: 01/08/2015 Page: 34 of 48
of brain impairment could be squared with Lynch’s conduct and statements before,
during, and after the murders.
First, Dr. Olander made the general observation that: “The interaction of
[brain damage and psychotic disorders] can be incredibly disabling for the
individual.” Of course. But she never explained how Lynch, if he was “incredibly
disabl[ed]” could have carefully planned and carried out the murder of Morgan, as
he did. Nor did she point to a single fact evidencing that Lynch actually was
“incredibly disabl[ed]” when he committed the murders.
Dr. McCraney was given a hypothetical approximating Lynch’s situation
and replied that it was “more likely than not the brain impairment did contribute to
the crime itself.”12 But when the attorney for the State asked him if his opinion
accounted for the facts of the murders, Dr. McCraney clarified that his opinion was
based on Lynch’s “constant conditions,” not on his actual conduct during the
murders. In other words, in reaching his opinion about what may have contributed
to the crime, this expert failed to consider the facts leading up to the crime, the
facts of the crime, and the facts about what Lynch did and said after the crime.
Unlike Lynch’s expert witnesses, state courts and federal courts must consider all
of the relevant facts. The Florida Supreme Court did, and so do we.
12
Dr. McCraney’s full statement makes clear that his testimony was based on a hypothetical:
“Now, I was asked a hypothetical on direct to take into account stress and the person’s mental
state at the time. Based on that hypothetical my opinion was that more likely than not the brain
impairment did contribute to the crime itself.”
34
Case: 12-15188 Date Filed: 01/08/2015 Page: 35 of 48
Finally, Dr. Sesta testified that in his opinion Lynch’s brain impairment left
him “less able to conform his behavior to the standards of the law than a normal
individual,” and that people with Lynch’s condition can behave normally for long
periods of time until emotional stressors trigger a “disaster.” But what about the
critical facts involving Lynch’s conduct leading up to, during, and after the crime?
Dr. Sesta used the ostrich technique to deal with them. He simply did not bother to
find out what they were. He testified that he didn’t even know what the facts
surrounding the murders were, and he never even attempted to analyze Lynch’s
state of mind during the crimes.
Given that none of Lynch’s experts accounted for Lynch’s conduct before,
during, and just after the murders, the Florida Supreme Court’s factual
determination that Dr. Riebsame’s testimony was more credible is a reasonable one
within the meaning of § 2254(d)(2). That factual determination cannot be used as
a basis for not granting § 2254(d) deference to the Florida Supreme Court’s
decision.
b.
As our previous discussion about the expert testimony going to the prejudice
issue implies, the Florida Supreme Court’s decision rejecting this ineffective
assistance claim was not an unreasonable application of clearly established federal
law. See 28 U.S.C. § 2254(d)(1).
35
Case: 12-15188 Date Filed: 01/08/2015 Page: 36 of 48
Prejudice in the context of the sentence stage of a capital trial is gauged in
terms of the mix of aggravating and mitigating circumstances. See Boyd v.
Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1341 (11th Cir. 2012). We ask
whether “without the errors, there is a reasonable probability that the balance of
aggravating and mitigating circumstances would have been different.” Bolender v.
Singletary, 16 F.3d 1547, 1556–57 (11th Cir. 1994). The answer comes from
taking the mitigating circumstances that were presented and adding to them the
ones that should have been but were not, and then considering the total mitigating
circumstances against all of the aggravating circumstances. See Porter v.
McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 453–54 (2009); Holsey, 694 F.3d at
1268.
The death sentence imposed on Lynch for Morgan’s murder was based in
large part on the cold, calculated, and premeditated aggravating circumstance,
while the death sentence imposed for Caday’s murder was based in large part on
the heinous, atrocious, or cruel aggravating circumstance. See Lynch, 841 So. 2d
at 368; Fla. Stat. § 921.141(5)(h), (i). Those “are two of the most serious
aggravators set out in [Florida’s] statutory sentencing scheme.” Larkins v. State,
739 So. 2d 90, 95 (Fla. 1999); see also Buzia v. State, 926 So. 2d 1203, 1216 (Fla.
2006) (same). And they both accurately characterized the extreme circumstances
of the two murders. See supra Parts I–II.
36
Case: 12-15188 Date Filed: 01/08/2015 Page: 37 of 48
Those are not, however, the only aggravating circumstances on which the
sentencing judge based the death sentences. For the murder of Morgan, as well as
for the murder of Caday, the judge also found and relied on the aggravating
circumstance that Lynch “had previously been convicted of a violent felony” and
the aggravating circumstance that he had committed the murder “while . . .
engaged in committing one or more other felonies.” Lynch, 841 So. 2d at 368
(applying Fla. Stat. § 921.141(5)(b) & (d)).
Against the three aggravating circumstances supporting each death sentence,
the only statutory mitigating circumstance was the one for “no significant history
of prior criminal activity.” See id. at 368 & n.5. There were also eight non-
statutory mitigating circumstances. Id. To make a difference, Lynch’s new brain
impairment evidence would have to alter the balance between the aggravating and
mitigating circumstances. See Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d
1271, 1300 (11th Cir. 2012); Sochor v. Sec’y Dep’t of Corr., 685 F.3d 1016, 1030
(11th Cir. 2012). The Florida Supreme Court determined that the new evidence
would not have altered the balance because the theory that Lynch suffered from a
brain impairment that affected his conduct could not be squared with the fact that
he “displayed organized, methodical planning in his perpetration of these
offenses,” “displayed critical impulse control in electing not to inflict self-harm,”
and “explained his actions in a detailed, specific fashion” both during and after the
37
Case: 12-15188 Date Filed: 01/08/2015 Page: 38 of 48
crimes. Lynch, 2 So. 3d at 73, 76–77. The new evidence, in essence, adds little of
value on the mitigation side of the scale.
The Florida Supreme Court’s holding that Lynch failed to carry his burden
of proving prejudice is objectively reasonable. We reached the same conclusion
about that court’s holding in another case involving similar circumstances. See
Rutherford v. Crosby, 385 F.3d 1300, 1316 (11th Cir. 2004). In that case, the
§ 2254 petitioner had planned and carried out the robbery and murder of an elderly
widow. See id. at 1302. He contended that his counsel had rendered ineffective
assistance by failing to present expert opinion testimony in the sentence stage
showing that, as one expert put it, the petitioner had committed the murder while
“under the influence of ‘stressors’ because of his drinking and getting back
together with his wife.” Id. at 1314, 1316. Applying AEDPA deference, we held
that reasonable jurists could conclude, as the Florida Supreme Court did, that there
was no reasonable probability such mental state mitigation evidence would have
altered the result given the evidence that the petitioner had planned and
deliberately carried out the murder in a cold and calculated way. Id.
The same reasoning applies here. The prosecution’s overwhelming evidence
proving that the murders were committed in a calculated, premeditated, and
deliberate manner undercuts the new evidence that he may have been mentally
impaired at the time of the two murders. Reasonable jurists could conclude, as the
38
Case: 12-15188 Date Filed: 01/08/2015 Page: 39 of 48
Florida Supreme Court did, that the strong aggravating circumstances would still
have outweighed all of the mitigating circumstances. For that reason, Lynch’s
claim fails. 13
VII.
In its direct appeal, the State contends that the district court erred in granting
Lynch habeas relief on his claim that he was denied effective assistance of counsel
when his attorneys advised him to waive his right to a sentence-stage jury before
adequately investigating and advising him about his brain impairment as a
potential mitigating factor. See Lynch, 897 F. Supp. 2d at 1306–09. The Florida
Supreme Court held that trial counsel had not performed deficiently because they
made a reasonable strategic decision to avoid what counsel felt would almost
certainly be an emotional jury in favor of a potentially “less emotional, highly
13
Lynch also raised a separate but related claim in his federal habeas petition. Compare
Lynch, 897 F. Supp. 2d at 1293–96 (faulting counsel for failing to find non-expert evidence
about his background), with id. at 1296–98 (faulting counsel for failing to secure expert
testimony about his brain impairment). Lynch contends that he was prejudiced by trial counsel’s
failure to find and present additional background information from lay witnesses and documents.
Id. at 1293. He argues that the additional evidence would have strengthened his mental health
mitigation strategy, provided humanizing details about him, and given insight into his
relationship with Morgan and his financial difficulties before the murder. See id. at 1293–96.
The Florida Supreme Court pointed out that most of that lay witness testimony and documentary
evidence had been covered by Dr. Olander at the sentence hearing, and the rest was either
“irrelevant, cumulative, disputed, or contradicted.” Lynch, 2 So. 3d at 72–73. The state court
rejected the claim on the grounds that: (1) it was not deficient performance for trial counsel to
choose to present Lynch’s background information through a mental health expert instead of lay
witnesses and documents; and (2) Lynch was not prejudiced by trial counsel’s failure to present
that cumulative, disputed, or contradicted evidence. See id. The district court concluded that
neither of those determinations was objectively unreasonable, Lynch, 897 F. Supp. 2d at 1296,
and so do we.
39
Case: 12-15188 Date Filed: 01/08/2015 Page: 40 of 48
experienced judge.” Lynch, 2 So. 3d at 71. It also held that Lynch was not
prejudiced because his “asserted ignorance of . . . a comparatively minor mental-
health diagnosis could not have affected his decision to waive a penalty-phase
jury.” Id. at 700.
The district court disagreed with both of the state court’s holdings. First, it
determined that counsel’s advice could not be a reasonable strategic choice
because it was based in part on counsel’s deficient investigation into mental health
mitigation evidence. See Lynch, 897 F. Supp. 2d at 1308. The district court also
concluded that the Florida Supreme Court’s prejudice determination had
“unreasonably discounted the weight and the importance of the available mental
health mitigation of which Petitioner was not apprised prior to his waiver of a
jury.” Id. at 1309 (citing 28 U.S.C. § 2254(d)(2)). That conclusion was based on
the district court’s reading of the “failed to present any evidence” sentence in the
Florida Supreme Court’s discussion of Lynch’s failure-to-investigate claim. See
id. (citing id. at 1303). For reasons we have already discussed at length, the district
court misread that sentence. See supra Section VI.C.2.a. It should not have cast
aside the § 2254(d) deference owed to the Florida Supreme Court’s decision on
this issue.
After conducting a de novo review of the record, the district court concluded
that Lynch had been prejudiced. See id. at 1309. Its belief that there was a
40
Case: 12-15188 Date Filed: 01/08/2015 Page: 41 of 48
reasonable probability that Lynch would have opted for a sentence-stage jury but
for trial counsel’s deficient performance was based on three things: (1) at the state
post-conviction hearing, lead trial counsel testified “that brain damage is a
compelling mitigator for a jury to consider”; (2) Lynch’s mental health was “the
only weighty mitigating factor in his defense”; and (3) in a letter to trial counsel,
Lynch had “expressed concern that Judge Eaton would be harsher in sentencing
than the judge initially assigned to the case.” Id. None of those three factors speak
directly to the question of whether a jury might have been more favorable to Lynch
than a judge, and thus none of them support the conclusion that if Lynch had been
informed of the mental state mitigating evidence he would have rejected his
counsel’s advice to waive a jury at the sentencing stage. We will discuss that more
in a moment.
We decide this claim on the prejudice issue. 14 In doing so, we assume —
without deciding — that Lynch’s ineffectiveness claim is governed by the
prejudice standard from Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366, 370
(1985). The Hill decision requires a petitioner claiming that he pleaded guilty
based on his trial counsel’s deficient advice to show “a reasonable probability that,
14
Because we conclude that the Florida Supreme Court’s prejudice determination was
reasonable, we need not consider the issue of trial counsel’s performance. See Strickland, 466
U.S. at 697, 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.”).
41
Case: 12-15188 Date Filed: 01/08/2015 Page: 42 of 48
but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Id. at 59, 106 S. Ct. at 370. It is not entirely clear that Hill
applies where, as here, the ineffective assistance claim is based on counsel’s advice
to waive a jury at a sentence hearing, instead of on advice to plead guilty and
waive a trial on guilt.
In similar circumstances, two of our sister circuits have applied Strickland’s
prejudice standard instead of Hill’s and asked if there was a reasonable probability
that the ultimate outcome of the proceeding would have been different. See United
States v. Lilly, 536 F.3d 190, 195–96 (3d Cir. 2008) (applying Strickland to
counsel’s advice to opt for a bench trial in the guilt stage); Jells v. Mitchell, 538
F.3d 478, 510–11 (6th Cir. 2008) (applying Strickland to counsel’s advice to waive
a jury at the guilt and sentence stages of a capital trial). But here both the Florida
Supreme Court and the district court applied Hill’s prejudice standard, see Lynch,
2 So. 3d at 57, 70–71; Lynch, 897 F. Supp. 2d at 1308–09, and Lynch urges us to
do so as well. Because of that, we will assume for purposes of this case, as the
parties both contend, that Hill applies.
Hill instructs courts that, where a petitioner faults counsel for advising him
without first finding and informing the petitioner about evidence relevant to that
advice, the prejudice determination “will depend on the likelihood that discovery
42
Case: 12-15188 Date Filed: 01/08/2015 Page: 43 of 48
of the evidence would have led counsel to change his recommendation.”15 474
U.S. at 59, 106 S. Ct. at 370. Assessing that likelihood “will depend in large part
on a prediction whether the evidence likely would have changed the outcome” with
a jury recommending a sentence to the judge as opposed to a judge determining a
sentence without a jury’s recommendation. 16 Id. To justify habeas relief on this
portion of his claim, Lynch must establish that the Florida Supreme Court’s
prejudice analysis is either “contrary to” or “an unreasonable application of”
clearly established federal law. 28 U.S.C. § 2254(d)(1).
A state court decision “is not contrary to federal law unless it contradicts the
United States Supreme Court on a settled question of law or holds differently than
did that Court on a set of materially indistinguishable facts.” Evans v. Sec’y, Dep’t
of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013) (en banc) (quotation marks
omitted). The Florida Supreme Court’s decision did neither. It applied an
objective form of prejudice analysis that focused on two things: (1) how the
“comparatively minor mental-health diagnosis” from Lynch’s new expert evidence
would not have affected the balance of aggravating and mitigating circumstances,
15
As we already mentioned, the recommendation in Hill was to plead guilty instead of going
to trial. Here, the recommendation was to waive the sentence-stage jury and have the trial judge
determine Lynch’s sentence without a jury’s recommendation.
16
In Hill, the Supreme Court framed the inquiry as “a prediction whether the evidence likely
would have changed the outcome of a trial.” 474 U.S. at 59, 106 S. Ct. at 370. That test does
not fit here because the choice is not between a trial and no trial, but between a judge making a
sentence determination with or without first receiving a jury’s recommendation. The Hill
standard must be altered to fit the circumstances.
43
Case: 12-15188 Date Filed: 01/08/2015 Page: 44 of 48
and (2) Lynch’s failure to offer any reason to conclude that a jury would be more
receptive to that evidence than “a potentially less emotional, highly experienced
jurist.” Lynch, 2 So. 3d at 71. The Supreme Court has not held that courts
applying Hill’s prejudice standard must determine what the particular petitioner or
his attorney would have done if the additional evidence had been discovered. And
Hill itself teaches that prejudice determinations based on the “predictions of the
outcome at a possible trial . . . should be made objectively.” 17 474 U.S. at 59–60,
106 S. Ct. at 371; see also Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012)
(“The [Hill] test is objective, not subjective . . . .”). Thus, the state court decision
was not contrary to clearly established federal law. 18
Nor was the Florida Supreme Court’s prejudice analysis an “unreasonable
application of” clearly established federal law. A state court decision is not an
unreasonable application of federal law unless the petitioner shows that there is no
17
The Florida Supreme Court’s acknowledgment that a judge is generally less apt to be
emotionally swayed by the facts of the crime and better able to fully consider the evidence
relating to possible brain impairment does not run afoul of Hill’s admonition that its prejudice
inquiry should be made “without regard for the idiosyncrasies of the particular decisionmaker.”
474 U.S. at 60, 106 S. Ct. at 371 (quotation marks omitted). Judges as a class and juries as a
class are not particular decisionmakers.
18
Because the Florida Supreme Court properly adopted an objective approach, it had no need
to address the subjective and equivocal testimony that Lynch’s trial counsel gave at the state
post-conviction hearing. When first asked if the new mental health evidence would have
changed his advice to Lynch, counsel said “I think so.” But he later retreated from that answer.
After being asked again if he would have advised Lynch to waive the sentence-stage jury if he
had all of the evidence presented at the state post-conviction hearing, he replied “I don’t know.”
Such subjective assessments are irrelevant. See Pilla, 668 F.3d at 373.
44
Case: 12-15188 Date Filed: 01/08/2015 Page: 45 of 48
possibility that “fairminded jurists” could debate whether the state court’s decision
is inconsistent with the holding of a prior Supreme Court decision. Evans, 703
F.3d at 1326 (quotation marks omitted). Here, the analysis turned on two factors.
The first factor was the Florida Supreme Court’s determination that the new brain
impairment evidence would not have affected the balance of aggravating and
mitigating circumstances because: (1) the new evidence established only that
Lynch had a “mild cognitive impairment”; (2) that impairment “ha[d] not affected
his ability to lead an otherwise normal life”; (3) he was “of average overall
intelligence”; and (4) he had “never connected this ‘impairment’ to his actions on
March 5, 1999.” Lynch, 2 So. 3d at 70–71. That was not an unreasonable
assessment. As we already explained when analyzing Lynch’s failure-to-
investigate claim, the facts of the crime and the expert testimony offered by the
State effectively undercut the brain impairment testimony of Lynch’s experts. See
supra Section VI.C.2.
The second factor in the Florida Supreme Court’s prejudice analysis was
Lynch’s failure to offer any reason to think the jury would have been more
receptive than the judge to the brain impairment evidence so that the new evidence
“would have altered his decision to forgo a penalty-phase jury in favor of a
potentially less emotional, highly experience jurist.” Lynch, 2 So. 3d at 71.
Neither Lynch’s brief nor the district court’s opinion offers any reason why a jury
45
Case: 12-15188 Date Filed: 01/08/2015 Page: 46 of 48
would be more likely than a judge to be persuaded by such evidence, let alone a
reason with which no “fairminded jurists” could disagree. See Evans, 703 F.3d at
1326 (quotation marks omitted). The Florida Supreme Court’s prejudice analysis
was therefore not an unreasonable application of clearly established federal law.
Nor do the three things that the district court relied on in its de novo
determination that there was prejudice overcome the § 2254(d) deference owed to
the Florida Supreme Court’s determination. See Lynch, 897 F. Supp. 2d at 1309.
None of them speaks directly to “whether the evidence likely would have changed
the outcome” with a jury and a judge as opposed to a judge alone, which Hill
identifies as the primary factor in its prejudice inquiry. 474 U.S. at 59, 106 S. Ct.
at 370. Fairminded jurists could agree with the state court’s reasoning and
disagree with the district court’s. See Evans, 703 F.3d at 1326.
The district court focused first on lead trial counsel’s “admission that brain
damage is a compelling mitigator for a jury to consider.” Lynch, 897 F. Supp. 2d
at 1309. Counsel’s testimony at the state post-conviction hearing was that juries
are “more receptive to a mitigator like brain damage than they are to the common
scheme of poor upbringing and mental illness.” But that testimony simply reflects
the fact that, as counsel put it, “showing a physical defect of the brain” is often
more persuasive than “showing something amorphous like a mental illness.”
46
Case: 12-15188 Date Filed: 01/08/2015 Page: 47 of 48
Counsel never suggested that juries are more receptive than judges to brain
impairment evidence, which is what matters here.
The district court also pointed out that Lynch’s “mental health [w]as the
only weighty mitigating factor in his defense” and that in two letters to trial
counsel Lynch expressed interest in presenting mental health mitigation evidence.
Id. Again, those statements speak to mental health mitigation generally, not to the
relevant question of whether a judge or a jury would be more receptive to that
mitigation. There is absolutely nothing in the record to support the proposition,
which the district court apparently relied on, that juries would be more receptive
than judges to mental health mitigation evidence.
Finally, the district court referred to Lynch’s letter to trial counsel dated
August 29, 2000, which discussed the fact that the judge who initially had been
scheduled to preside over the trial had been replaced by Judge Eaton. Id.
Expressing the hope that the new judge would not be harsher on sentencing, Lynch
wrote: “Also the change of judge from Alley to O.H. Eaton I don’t feel will help,
he reminds me of a[] cranky old man & possibly harsher as concerning sentence. I
hope not.” Lynch’s vague expression of concern does not make the Florida
Supreme Court’s prejudice determination objectively unreasonable. He chose to
waive a sentence-stage jury despite his initial concern about Judge Eaton, and his
worry that Judge Eaton might be harsher than Judge Alley does not directly answer
47
Case: 12-15188 Date Filed: 01/08/2015 Page: 48 of 48
the relevant question: Judge Eaton or a jury. 19 As the Florida Supreme Court
recognized, in Lynch’s case the primary reason for choosing Judge Eaton instead
of a jury was the likelihood that Judge Eaton would be less emotional and therefore
more likely to fully and fairly consider any mitigation evidence. See Lynch, 2 So.
3d at 47. That factor still favored choosing Judge Eaton even with the new mental
health mitigation evidence. A reasonable jurist could conclude that Lynch was not
prejudiced by his counsel’s advice to waive the sentence-stage jury. The district
court erred in granting Lynch sentence-stage relief on this claim.
VIII.
Because Lynch was not denied the effective assistance of counsel, the part of
the district court’s judgment denying habeas relief to Lynch is affirmed, and the
part of the judgment granting him relief is reversed.
AFFIRMED in part and REVERSED in part.
19
When Lynch waived his right to a sentence-stage jury, he knew that Judge Eaton would be
the judge presiding at the sentence hearing. See Lynch, 2 So. 3d at 71. Counsel confirmed that
fact during oral argument before this Court.
48