Norman Parker v. Secretary for the Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ May 20, 2003
THOMAS K. KAHN
No. 02-13292 CLERK
________________________

D. C. Docket No. 97-01191-CIV-LENARD

NORMAN PARKER,
Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,
Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 20, 2003)

Before ANDERSON, BLACK and WILSON, Circuit Judges.

BLACK, Circuit Judge:
 Norman Parker, a state prisoner convicted of murder and sentenced to death,

appeals the District Court’s denial of his petition for writ of habeas corpus under 28

U.S.C. § 2254. On appeal, Parker only raises two claims: (1) the constitutional

deficiency of the jury instruction on felony murder; and (2) ineffective assistance of

counsel at capital sentencing. For the following reasons, we affirm the district court’s

denial of the petition.

I. BACKGROUND

In 1967, Parker was sentenced to life imprisonment for a first-degree murder

committed in Dade County, Florida. In February 1978, Parker escaped from prison,

and committed two additional murders, one in Miami on July 18, 1978, and another

in Washington D.C. in August 1978.1 The following facts are taken from the Florida

Supreme Court’s opinion, on direct appeal, affirming Parker’s conviction and

sentence for the Miami murder:

The evidence at trial established that on July 18, 1978, defendant
[Parker] and his partner Manson, were admitted to a Miami home in
order to complete an illegal drug transaction with two male occupants
of the home. Soon thereafter, defendant and Manson produced a sawed-
off shotgun and a chrome-plated revolver, respectively, and demanded
cocaine and money from the two victims. The two victims were forced

1
In separate trials, Parker was sentenced to another term of life imprisonment for the
second-degree murder committed in D.C., and sentenced to death for the first-degree murder
committed in Miami. Parker’s habeas petition challenges constitutional errors that allegedly
occurred during his trial for the Miami murder.

2
 to surrender jewelry, strip naked, and lie on a bed. Two other occupants,
a female and her boyfriend (Chavez), were discovered in another room
and also forced to strip naked and surrender jewelry. All four victims
were then confined in the same room, on the same bed. Defendant and
Manson exchanged weapons and defendant guarded the four victims
while Manson searched the home for additional loot. Defendant
threatened to kill the victims because he said he had escaped from jail
and had nothing to lose. The victims pleaded with defendant and
Manson to take what they wanted and leave. Chavez also pleaded with
defendant and Manson to leave his girlfriend alone. After a period of
time, defendant aimed the revolver at Chavez’s back, whereupon
Manson handed defendant a pillow. The other three victims heard the
muffled shot and nothing further from Chavez. Chavez died from a
single gunshot wound to the chest. Defendant then committed a sexual
battery on the female. Defendant and Manson fled, but were later
identified by the surviving victims from a photographic lineup.
On August 24, 1978, defendant shot a man in a Washington, D.C.,
bar. A bullet from this victim’s body was matched with the bullet taken
from Chavez’s body. Jewelry found in possession of the defendant in
D.C. was similar to jewelry taken form the Miami victims. Defendant
testified that he had been in D.C. during the summer of 1978, including
the day that the Miami murder was committed. Four other defense
witnesses testified by deposition that defendant was in D.C. during the
summer of 1978 but, on cross examination, were unable to swear
defendant was in D.C. during the period, July 17-19, 1978.

Parker v. State, 456 So. 2d 436, 439-440 (Fla. 1984) (Parker 1).

In the trial for the Miami murder, the jury found Parker guilty of first-degree

murder, four counts of armed robbery, one count of sexual battery, possession of a

weapon during a criminal offense, and possession of a weapon by a convicted felon.

The jury recommended the death sentence by a vote of 10-2, and the trial judge

imposed the sentence after finding five aggravating factors and no mitigating factors.

3
On September 6, 1984, the Florida Supreme Court affirmed his conviction and

sentence on direct appeal. See id. On February 27, 1989, the Florida Supreme Court

denied Parker’s petition for habeas corpus relief. Parker v. Dugger, 537 So.2d 969

(Fla. 1989) (Parker 2). The state Circuit Court denied Parker's Rule 3.850 motion for

post-conviction relief, Florida v. Parker, No. 78-11151-A (Fla. Cir. Ct. Nov. 28,

1998), and on February 5, 1993, the Florida Supreme Court affirmed that decision on

appeal, Parker v. State, 611 So. 2d 1224 (Fla. 1993) (Parker 3). Parker filed a

petition for a federal writ of habeas corpus in the Southern District of Florida, which

the District Court denied on January 25, 2002. Parker v. Moore, No. 97-1191 (S.D.

Fla. January 25, 2002) (Parker 4).2 This appeal followed.

II. STANDARD OF REVIEW

We review the district court’s findings of fact for clear error and its legal

conclusions and mixed questions of law and fact de novo. In this case, both this

Court and the District Court are constrained by 28 U.S.C. § 2254. Section 2254, as

amended by Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

establishes a highly deferential standard for reviewing state court judgments. See

Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002). AEDPA “modified a

2
On May 22, 2002, the district court entered a supplemental order, clarifying the basis for
denying Parker’s petition and supplementing its conclusions. Parker v. Moore, No. 97-1191
(S.D. Fla. May 22, 2002).

4
federal habeas court’s role in reviewing state prisoner applications in order to prevent

federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to

the extent possible under law.” Bell v. Cone, __ U.S. __, 122 S. Ct. 1843, 1849

(2002).

Under § 2254(d) a federal habeas court can grant relief for a claim adjudicated

on the merits in state court only where the adjudication in state court “(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.” 28 U.S.C. § 2254(d).

We have previously explained the difference between the “contrary to” and

“unreasonable application” clauses in § 2254(d)(1):

A state court decision is ‘contrary to’ clearly established federal law if
either (1) the state court applied a rule that contradicts the governing law
set forth by Supreme Court case law, or (2) when faced with materially
indistinguishable facts, the state court arrived at a result different from
that reached in a Supreme Court case. A state court conducts an
‘unreasonable application’ of clearly established federal law if it
identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s case.

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001); see Williams v. Taylor, 529

U.S. 362, 405-06, 120 S. Ct. 1495, 1519 (2000).

5
 Moreover, § 2254(e)(1) “provides for a highly deferential standard of review

for factual determinations made by a state court.” Robinson, 300 F.3d at 1342.

Section 2254(e)(1) states, “a determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

III. ANALYSIS

A. Felony Murder

Parker first claims that he is entitled to habeas relief because the trial court

gave a constitutionally-deficient jury instruction on first-degree felony murder.

During Parker’s prosecution, the State pursued two theories supporting a first-degree

murder conviction: premeditated murder and felony murder. From the record, it

appears that the trial court’s oral instructions on first-degree murder failed to instruct

the jury on the elements of felony murder. The trial court read the following first-

degree murder instructions to the jury:

I now instruct you on the circumstances that must be proven
beyond a reasonable doubt before Norman Parker, Jr., can be found
guilty of first degree murder or any lesser included crime.

There are two methods of proving first degree murder. The first
method is premeditated murder. Murder, first degree. Before you can
find the defendant guilty of first degree murder by premeditation, the

6
 State must prove the following three elements beyond a reasonable
doubt:

[1] Julio Ceazar Chavez is dead.

[2] The death was caused by the criminal act or agency of the
defendant.

[3] There was a premeditated killing of Julio Ceazar Chavez.

“Killing with premeditation” is killing after consciously deciding
to do so. The decision must be present in the mind at the time of the
killing. The law does not fix the exact period of time that must pass
between the formation of the premeditated intent to kill and the killing.
The period of time must be long enough to allow reflection by the
defendant.

The question of premeditation is a question of fact to be
determined by you from the evidence. It will be sufficient proof of
premeditation if the circumstances of the killing and the conduct of the
accused convince you beyond a reasonable doubt of the existence of
premeditation at the time of the killing.

The second method of proving first degree murder is by the felony
murder rule.

The trial court gave no further oral instruction to the jury regarding first-degree

felony murder.

The trial court next orally instructed the jury on the elements of second-degree

murder, and then gave an oral instruction on third-degree felony murder. The third-

degree felony murder instructions were as follows:

7
 Before you can find the defendant guilty of third degree murder,
the State must prove the following three elements beyond a reasonable
doubt:

[1] Julio Ceazar Chavez is dead.

[2] The death occurred as a consequence of and while the
defendant was engaged in the commission of or an attempt
to commit a felony, other than any arson, involuntary
sexual battery, robbery, burglary, kidnapping, aircraft
piracy, or unlawful throwing, placing or discharging of a
destructive device or bomb, or which resulted from the
unlawful distribution of heroin by a person over the age of
18 years when such drug is proven to be the proximate
cause of death of the user.

[3] Norman Parker, Jr., was the person who actually killed
Julio Ceazar Chavez.

It is not necessary for the State to prove the killing was
perpetrated with a design to effect death.

At the conclusion of all the oral instructions, the trial judge called a sidebar to

ask if he had read the instructions properly. Although the trial judge twice asked if

there were additions or corrections to the instructions, defense counsel did not object

to the omission of the oral first-degree felony murder instruction.3

3
During this sidebar, defense counsel only renewed an objection that is not relevant to our
habeas review. In light of defense counsel’s failure to object to the omission of an oral felony
murder instruction, there is a reasonable inference that the omission was in fact an error in the
transcription of the oral instructions. During the state habeas proceedings, however, the State
conceded that the oral instruction had not been given. The Florida Supreme Court found that the
trial court had omitted the oral instruction on first-degree felony murder. See Parker 2, 537 So.
2d 969, 970–71 (Fla. 1989). We are bound to give deference to this factual determination. 28
U.S.C. § 2254(e)(1).

8
 The prosecutor then asked that written instructions be sent to the jury. The

Court agreed and told the jury that it would receive “a copy of the instructions that

I have just read to you.” In addition to instructions on premeditated murder and third-

degree felony murder, the written instructions included a complete instruction on

first-degree felony murder:

Before you can find a defendant guilt of First Degree Felony
Murder, the State must prove the following elements beyond a
reasonable doubt:

1. JULIO CESAR CHAVEZ is dead.

2. The death occurred as a consequence of or while the defendant or an
accomplice was engaged in the commission of or an attempt to commit
Sexual Battery and Robbery.

3. NORMAN PARKER, JR. was the person who actually killed JULIO
CESAR CHAVEZ.

It is not necessary for the State to prove that the defendant had a
premeditated design or intent to kill.

The jury found Parker guilty of first-degree murder by way of a general verdict.

It is therefore unknown whether the first-degree murder conviction was based on

premeditation or the felony murder rule.

Parker argues that the trial court’s omission of an oral felony murder

instruction violated his constitutional right to have a jury determine his guilt or

innocence beyond a reasonable doubt. Specifically, he contends that, because it is

9
impossible to know whether the jury found him guilty of felony murder after hearing

a constitutionally infirm felony murder instruction, his conviction must be set aside

under the rule of Stromberg v. California, 283 U.S. 359, 367–68, 51 S. Ct. 532, 535

(1931), and its progeny.

In response, the State argues Parker’s claim was procedurally barred by the

state courts and cannot now be addressed on federal habeas review.

1. Procedural Bar

Pre-AEDPA decisions from the Supreme Court establish the framework

governing procedural default in federal habeas cases. Procedural defaults in state

courts will foreclose federal court review, absent a showing of cause and prejudice.

Wainwright v. Sykes, 433 U.S. 72 (1977). This rule is grounded in the independent

and adequate state law doctrine. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.

Ct. 2546, 2565 (1991); Harris v. Reed, 489 U.S. 255, 260–63, 109 S. Ct. 1038,

1042–43 (1989). As the Supreme Court has recognized, application of both

procedural default and the independent and adequate state law doctrine suffers from

ambiguity in state court decisions; to this “common problem” the Supreme Court

applied a “common solution.” Id. at 263, 109 S. Ct. at 1043. That solution is the

plain statement rule: “in determining, as we must, whether we have jurisdiction to

review a case that is alleged to rest on adequate and independent state grounds, we

10
merely assume that there are no such grounds when it is not clear from the opinion

itself that the state court relied upon an adequate and independent state ground.”

Michigan v. Long, 463 U.S. 1032, 1042, 103 S. Ct. 3469, 3477 (1983) (citation

omitted). Applying this principle in the habeas context, the Supreme Court has held

that “a procedural default does not bar consideration of a federal claim on either

direct or habeas review unless the last state court rendering a judgment in the case

clearly and expressly states that its judgment rests on a state procedural bar.” Harris,

489 U.S. at 263, 109 S. Ct. at 1043 (internal quotations omitted); see also Coleman,

501 U.S. at 734–35, 111 S. Ct. at 2557 (same). The mere fact that a federal claim

might have been procedurally defaulted does not prevent a federal habeas court from

reviewing that claim if the state court did not rely on the procedural bar as an

independent basis for its decision. Harris, 489 U.S. at 261–62, 109 S. Ct. at 1042.

This Court has further clarified that a federal claim is not barred on federal habeas

review if the state courts actually reject a claim on the merits. Davis v. Singletary,

119 F.3d 1471, 1479 (“It is settled that once the state courts have ignored any

procedural bar and rejected a claim on the merits—not in the alternative but as the

only basis of decision—that claim is not barred from federal habeas review.”).

11
 Mindful of the plain statement rule and its application in the habeas context,

we turn to the decision of the Florida Supreme Court. In its earlier opinion denying

Parker’s state habeas petition, the Supreme Court of Florida ruled as follows:

Petitioner [Parker] next claims that the felony murder instructions given
to the jury were constitutionally deficient and that appellate counsel was
ineffective for failing to raise this issue. During the oral instructions,
the trial judge inadvertently omitted the definition of first-degree felony
murder. The definition was included in the written instructions which
the jury was told it should review if in doubt on any instruction.
Although the judge asked if there had been any omissions to the
instructions, trial counsel did not bring the omission to the attention of
the court and the issue was not preserved for appeal. Appellate counsel
cannot be faulted for not raising an unpreserved issue. Moreover, even
if the written instructions were not sufficient to advise the jury, the
omission is harmless.

Parker 2, 537 So. 2d at 970–71 (emphases added).

At the outset, we note that the parties dispute exactly what claims the Supreme

Court was discussing in this passage. The State contends that the relevant

claim—Claim II in Parker’s state habeas petition—raised only an ineffective

assistance of appellate counsel claim, and the alleged jury instruction error served

merely as a predicate for this ineffectiveness claim. If Claim II raised only an

ineffectiveness claim, then the Florida Supreme Court’s opinion in Parker 2 is

irrelevant to our determination of whether the substantive challenge to the jury

instructions Parker now urges on federal habeas review is procedurally barred.

12
Parker, on the other hand, responds that Claim II in the state habeas petition was not

limited to an ineffectiveness claim; rather, he brought both (1) a substantive challenge

to the jury instructions as a fundamental error under Florida law, and (2) an

ineffectiveness claim based on appellate counsel’s failure to argue this substantive

claim on direct appeal. As Parker sees it, the alleged jury instruction error was a

freestanding, substantive challenge, and Claim II in the state habeas petition was a

compound claim asserting two related grounds for relief.

After reviewing Parker’s state habeas petition, we cannot but conclude that

Claim II—which the Florida Supreme Court discussed in the passage quoted

above—was a compound claim raising both substantive jury instruction error and

appellate ineffectiveness for failing to raise to the jury instruction error on direct

appeal. We begin with the caption of Claim II, which appeared as follows: “The trial

court’s constitutionally deficient felony murder instruction was fundamental error

which violated Mr. Parker’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights,

and appellate counsel rendered ineffective assistance by failing to urge this

dispositive, critical constitutional claim” (emphasis added). The conjunction of two

independent (though related) claims for relief indicates that Parker’s Claim II

included a substantive challenge to the jury instructions, not just a claim of

ineffective assistance of appellate counsel, as the State contends.

13
 Turning to the body of Parker’s arguments in his state habeas petition, it is

apparent that the substantive challenge to the jury instructions was not just part of a

two-part, compound claim, but rather it was the more prominent of the two arguments

presented in Claim II.4 Parker relied most heavily on Franklin v. Florida, 403 So. 2d

975 (Fla. 1981), a case in which the Florida Supreme Court held that an error in the

jury instructions on felony murder was fundamental error under Florida law.

Franklin did not include any claim of ineffective assistance of counsel; it was decided

solely on a substantive challenge to the deficient jury instructions. Parker specifically

argued that “[t]he jury, not knowing the elements, could not have determined whether

those elements were proven beyond a reasonable doubt. Mr. Parker’s conviction

therefore stands in stark violation of the most rudimentary of due process rights.”

When Parker finally got around to arguing appellate ineffectiveness, he introduced

that contention with “[m]oreover,” suggesting that it was a separate and additional

ground for relief, not the sole ground predicated on the alleged jury instruction error.

And after his brief discussion of appellate ineffectiveness, he returned to his

substantive argument, claiming he was entitled to state habeas relief because the

4
We note that Parker’s discussion of Claim II in his state habeas petition was 12 pages.
Only one of these pages was devoted to appellate ineffectiveness, and the three paragraphs on
this issue were presented in the middle of the much longer and more thorough discussion of
Parker’s substantive challenge to the jury instructions.

14
instruction error “remove[d] central issues from their rightful place in the jury’s

domain and den[ied] the accused the right to a verdict as to his guilt or innocence

provided by the jury.” If anything, Parker’s state habeas petition treated the claim of

appellate ineffectiveness as a subordinate issue appended—almost as an

afterthought—to his substantive challenge to the jury instructions.

Our conclusion that Parker’s state habeas petition presented a compound claim

that included a substantive challenge to the felony murder instructions is bolstered by

Parker’s reliance on Florida’s law of “fundamental error.” From the first page of his

state habeas petition, Parker complained of “fundamental constitutional errors,” and

he specifically stated, “The petition pleads claims involving fundamental

constitutional error.” Parker’s claim of fundamental error is significant because,

under Florida law, a jury instruction error can be challenged even absent a

contemporaneous objection at trial if the error was a fundamental error. Archer v.

Florida, 673 So. 2d 17, 20 (Fla. 1996). The Florida Supreme Court has held that an

instruction error can constitute fundamental error. See Florida v. Jones, 377 So. 2d

1163, 1165 (Fla. 1979) (“In the present case, there was a complete failure to give any

instruction on the elements of the underlying felony of robbery. This was

fundamental error.”). Furthermore, Parker cited several cases from Florida appellate

courts holding that a fundamental error could be corrected whenever the issue was

15
presented, on direct appeal or in post-conviction proceedings. See Nova v. Florida,

439 So. 2d 255 (Fla. Dist. Ct. App. 1983), limited by Moreland v. Florida, 582 So.

2d 618, 619 n.1 (Fla. 1983); Dozier v. Florida, 361 So. 2d 727 (Fla. Dist. Ct. App.

1978); Flowers v. Florida, 351 So. 2d 387 (Fla. Dist. Ct. App. 1977). The clear

import of Parker’s fundamental error argument was that he was entitled to relief in his

state habeas proceedings for the substantive jury instruction error, despite his trial

counsel’s failure to object at trial.5 His substantive challenge was thus presented to

the Florida Supreme Court during his state habeas proceedings.

In addition, we note that the State’s response to Parker’s state habeas petition

construed Claim II as a substantive challenge to the felony murder instructions. The

relevant section of the State’s response brief was captioned simply “Incomplete

Felony Murder Instruction.” Nowhere in that brief does the State present any

argument related to an ineffective assistance of counsel claim. Rather, the State

5
We acknowledge that the State interprets Parker’s fundamental error argument as an
effort to show that his appellate counsel could have presented the challenge on direct appeal
despite the counsel’s failure to object to the jury instructions at trial. See Archer, 673 So. 2d at
20. As the State sees it, Parker’s fundamental error argument only goes to show that appellate
counsel was deficient under Strickland. The State’s interpretation of Parker’s fundamental error
argument is too cramped, however, especially in light of the Florida cases Parker cited in support
of the proposition that the alleged fundamental error—in this case, the substantive jury
instruction error—could be corrected at any time. In other words, Parker was pressing the
argument that, under Florida law, he did not need to resort to an ineffectiveness claim in order to
challenge the instruction error during his state habeas proceedings. It is not our place to pass on
whether this argument could succeed under Florida law; what matters for federal habeas review
is that Parker presented a substantive challenge to the jury instructions during his state habeas
proceedings.

16
argued only that the substantive error of omitting an oral instruction on first-degree

felony murder amounted to harmless error, based on the overwhelming evidence of

premeditation. The State’s response brief confirms our reading of Parker’s Claim

II—that it was primarily a substantive challenge to the jury instructions and only

secondarily an ineffectiveness claim.

Because we conclude that Claim II in Parker’s state habeas petition included

a substantive challenge to the felony murder instruction, we must review the Florida

Supreme Court’s decision in Parker 2 to determine whether this substantive challenge

is now procedurally barred. At no point in its analysis of the felony murder

instruction claim (quoted above) did the state court expressly bar Parker’s claim. Its

treatment of his claims related to the jury instructions is in stark contrast with its

explicit procedural bars on all of Parker’s other claims. See, e.g., id. at 970 (finding

claim regarding admission of statements “procedurally barred”); id. at 972 (finding

challenge to cold, calculated, premeditated aggravator “procedurally barred”); id. at

973 (finding claim “procedurally barred”). In fact, Parker raised seven different

claims in his state habeas petition, and the Florida Supreme Court specifically stated

that all of them except the compound claim related to the felony murder instructions

were procedurally barred. The Florida Supreme Court clearly met the requirements

of the plain statement rule with regard to all of Parker’s other claims; its failure to

17
comply with the plain statement rule with regard to the substantive jury instruction

claim is telling.

The relevant passage from the state court’s opinion itself suggests that the

Florida Supreme Court did not bar Parker’s substantive challenge. The only thing in

Parker 2 that suggests a procedural bar is the Florida Supreme Court’s statement, “the

issue was not preserved for appeal.” Parker 2, 537 So. 2d at 971 (first emphasis in

quoted text above). The text of the opinion indicates, however, that this statement

was merely part of the Court’s recital of the procedural history relevant to Parker’s

ineffectiveness claim. The conjunction “and” indicates a second fact conjoined with

the preceding fact in the state court’s recital of the procedural history. Were the

clause, “the issue was not preserved for appeal,” a conclusion barring Parker’s first,

substantive challenge to the jury instructions, the state court would have used the

conjunction “so,” not “and.” We therefore conclude that the Florida Supreme

Court’s statement that the issue was not preserved for appeal is a premise for the

court’s conclusion that “Appellate counsel cannot be faulted for not raising an

unpreserved issue.”6

6
In addition, we note that, given Parker’s argument that the substantive instruction error
was fundamental error under Florida law, it may have been difficult for the Florida Supreme
Court to bar Parker’s claim because of the absence of a contemporaneous objection. A failure to
object at trial is forgiven when the error is fundamental under Florida law. As Parker’s able
counsel suggested at oral argument, if this isolated statement in the Florida Supreme Court’s
opinion had been the basis for imposing a procedural bar, Parker would have a colorable

18
 In summarizing its ruling on Parker’s habeas petition, the Florida Supreme

Court wrote, “[h]aving found that all claims are either procedurally barred or

nonmeritorious, we deny all relief.” Parker, 537 So. 2d at 973. As explained above,

the state court explicitly barred six of Parker’s seven claims; the only claim that could

have been found “nonmeritorious” was Parker’s compound claim related to the felony

murder instruction. Because we conclude that Parker’s compound Claim II in his

state habeas petition included a substantive challenge to the jury instructions, we

cannot accept that the state court’s “nonmeritorious” finding applied to the ineffective

assistance claim only. At the very least, there is no plain statement that the Florida

Supreme Court did not consider the merits of the substantive challenge to the jury

instructions and find that challenge to be nonmeritorious.

Furthermore, it is impossible to characterize the state court’s harmless error

analysis of the substantive challenge to the jury instructions as nothing more than an

alternative basis for its procedural bar ruling, so that the alternative nature of the

harmless error analysis now precludes federal habeas review. See Davis, 119 F.3d

at 1479 (noting that an alternative merits holding leaves the procedural bar in place).

argument that the state court was applying inconsistent procedural rules which were therefore
inadequate grounds to prevent our federal habeas review. See James v. Kentucky, 466 U.S. 341,
348–49, 104 S. Ct. 1830, 1835 (1984) (holding that a procedural rule that is not “firmly
established and regularly followed” cannot bar federal court review); Ford v. Georgia, 498 U.S.
411, 111 S. Ct. 850 (1991).

19
An alternative holding is suggested by the hypothetical “even if” that introduces the

harmless error analysis. See Parker 2, 573 So. 2d at 971 (second emphasis in quoted

text above). The hypothetical, however, is not “even if there were no procedural bar.”

Rather, the hypothetical presumes only that the written instructions were not

sufficient to instruct the jury on felony murder.7 Even if the state court’s harmless

error analysis is an alternative holding on the merits,8 it is an alternative to a different

merits holding, not a procedural default.

Finally, the Florida Supreme Court’s ruling on Parker’s Rule 3.850 motion only

confirms our finding that there is no procedural bar. In its opinion, the Florida

Supreme Court stated that Parker’s claim regarding the felony murder instruction was

procedurally barred. Parker 3, 611 So. 2d at 1226 (“The procedurally barred claims

are . . . 2) the jury instructions failed to define felony murder”). This is not

surprising, because the Florida Courts always bar claims in Rule 3.850 proceedings

if those claims were brought or could have been brought earlier. See id. The state

court further explained in a footnote, however, that “Claim[] 2 [was] not only

7
It would be possible to interpret the Florida Supreme Court’s harmless error analysis as
going to Strickland’s prejudice prong of Parker’s appellate ineffectiveness claim. If that were the
case, then we would have to conclude that the Florida Supreme Court never ruled on Parker’s
substantive challenge to the jury instructions at all, and since we have already concluded that
Parker presented the substantive challenge in his state habeas petition, that would mean that his
claim was not procedurally barred.
8
We discuss the validity of the state court’s harmless error analysis infra.

20
procedurally barred, [it] was found to be without merit or harmless in Parker’s habeas

proceeding.” Id. at n.2. If Parker’s substantive challenge to the deficient felony

murder instruction had not been raised in his state habeas petition, the Florida

Supreme Court’s footnote could not have noted that Parker’s claim had been found

harmless.

We therefore conclude it “fairly appears” that the Florida Supreme Court’s

opinion in Parker 2 did not procedurally bar Parker’s substantive challenge to the

jury instructions. Coleman, 501 U.S. at 740, 111 S. Ct. at 2559.9 And any doubts we

might have about the Florida Supreme Court’s ruling must be settled by the plain

statement rule: if the application of the procedural bar is not plainly stated in the

opinion, we must decline to apply a procedural bar and instead address the federal

issue on the merits. Coleman, 501 U.S. at 734–35, 111 S. Ct. at 2557; Harris, 489

U.S. at 263, 109 S. Ct. at 1043; see also Long, 463 U.S. at 1042, 103 S. Ct. at 3477.

The District Court therefore erred in applying a procedural bar to this claim, and we

will proceed to address its merits.

2. Merits

9
Of course, the procedural bar imposed in Parker 3 cannot prevent federal habeas review
of the substantive jury instruction challenge. See Davis, 119 F.3d at 1479 (“Once a state supreme
court on direct review has eschewed the merits of a claim, no amount of procedural bar holdings
as to that claim in future proceedings will suffice to bar the claim from federal habeas review.”).

21
 Turning to the merits, we may grant Parker habeas relief with respect to a claim

that was adjudicated on the merits in state court only if the state court’s decision was

“contrary to, or an unreasonable application of, clearly established federal law.” 28

U.S.C. § 2254(d)(1). Parker contends that this deferential standard does not apply in

this case because the Florida Supreme Court failed to discuss or even cite any

relevant federal case law relating to his challenge to the jury instructions. See Romine

v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001) (“[W]hen there is grave doubt about

whether the state court applied the correct rule of governing federal law, § 2254(d)(1)

does not apply.”). Unfortunately for Parker, this Circuit has already rejected such an

argument in Isaacs v. Head, 300 F.3d 1232, 1258–60 (11th Cir. 2002). In that case,

a petitioner challenged the admissibility of his statements made in custody under the

authority of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1980). The state

court rejected that claim but did not cite Edwards. On federal habeas review, we

decided that AEDPA deference nonetheless applied. We stated that we had no doubt

that the state court had fairly considered the Edwards claim and rejected it, and

§ 2254(d)(1) therefore applied. Isaacs, 300 F.3d at 1260. In reaching this

conclusion, we explicitly distinguished Romine as a “narrow decision.” Id. at 1259

(citing Wright v. Secretary for Dep’t of Corrections, 278 F.3d 1245, 1254 (11th Cir.

2002) (describing Romine as a case in which “it was unclear whether the federal

22
constitutional issue had been raised and decided in state court”). All that is required

under § 2254(d)(1) is an adjudication on the merits, not a full state court opinion. See

Wright, 278 F.3d at 1254; Isaacs, 300 F.3d at 1259–60. For that reason, “the

summary nature of a state court’s decision does not lessen the deference that is due.”

Wright, 278 F.3d at 1254.

Having determined above that Parker presented his substantive challenge to the

jury instructions during his state habeas proceedings, we also conclude that the state

court ruled on that challenge. The state court’s failure to cite the relevant Supreme

Court precedents does not mean that AEDPA deference does not apply. See Isaacs,

300 F.3d at 1260. Accordingly, we will not grant Parker relief unless the Florida

Supreme Court’s decision was “contrary to, or an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

Parker’s substantive challenge to his conviction rests on the trial court’s failure

to give an oral jury instruction defining the elements of first-degree felony murder,

and the jury’s general verdict does not disclose whether it convicted Parker on the

basis of felony murder or the prosecution’s alternative premeditation theory. Parker

claims that, despite the full and correct written instructions on felony murder and the

23
instructions on third-degree felony murder provided to the jury, the deficiency in the

oral instructions renders the entire verdict constitutionally infirm.

Parker’s substantive challenge to the jury instructions relies on the conjunction

of three different legal principles. First, it is a commonplace of criminal law that a

conviction violates due process if the jury did not have to find the elements necessary

for a guilty verdict beyond a reasonable doubt. See, e.g., Sandstrom v. Montana, 442

U.S. 510, 526, 99 S. Ct. 2450, 2460 (1979); In re Winship, 397 U.S. 358, 90 S. Ct.

1068 (1970).

Second, most constitutional violations are subject to harmless error review.

Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999); Arizona v.

Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263 (1991); Chapman v.

California, 386 U.S. 18, 23, 87 S. Ct. 824, 827 (1967). Only errors deemed

“structural” require automatic reversal. See, e.g., Sullivan v. Louisiana, 508 U.S. 275,

113 S. Ct. 2078 (1993) (defective reasonable-doubt instruction); Gideon v.

Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) (complete denial of counsel).

Harmless error analysis applies, for example, where a jury instruction omits an

element of the offense. See Neder, 527 U.S. at 9, 119 S. Ct. at 1833.

Third, “a general verdict must be set aside if the jury was instructed that it

could rely on any of two or more independent grounds, and one of those grounds is

24
insufficient, because the verdict may have rested exclusively on the insufficient

ground.” Zant v. Stephens, 462 U.S. 862, 881, 103 S. Ct. 2733, 2745 (1983); see also

Stromberg v. California, 283 U.S. 359, 367–68, 51 S. Ct. 532, 535 (1931). In such

circumstances, it is impossible to determine on which basis the jury reached its

verdict, so deficiency in only one basis requires the entire verdict to be set aside.

Sandstrom, 442 U.S. at 526, 99 S. Ct. at 2460; see also Stromberg, 283 U.S. at 368,

51 S. Ct. at 535 (“If any of the [bases] in question is invalid under the Federal

Constitution, the conviction cannot be upheld.”).

Parker’s argument combines these three principles as follows. There can be

little doubt that, ab initio, the failure of the state trial court to give an instruction on

first-degree felony murder violated Parker’s due process rights. See Sandstrom, 442

U.S. at 526, 99 S. Ct. at 2460. Without any explanation of the elements of first-

degree felony murder, the jury could not properly have found Parker guilty under the

second of the prosecution’s alternative theories for first-degree murder. There is no

way to know whether the jury convicted him of first-degree murder on the basis of

the prosecution’s felony murder theory because the jury returned only a general

verdict. The deficiency in the felony murder instruction therefore requires the entire

conviction to be set aside. Stephens, 462 U.S. at 881, 103 S. Ct. at 2745; Stromberg,

283 U.S. at 368, 51 S. Ct. at 535. Moreover, the error in the oral instructions cannot

25
be rendered harmless by the complete written instructions given the jury, because

harmless error review does not apply. See Sullivan, 508 U.S. at 280–81, 113 S. Ct.

at 2082. As Parker sees it, the Stromberg error renders the entire jury verdict a

nullity, leaving nothing to review for harmless error. Id. at 280, 113 S. Ct. at 2082

(“There is no object, so to speak, upon which harmless-error scrutiny can operate.”).

We think Parker overstates the principle of Stromberg, however. While a

Stromberg-type error would require his conviction to be set aside, there is only a

Stromberg error if one of the independent bases for the jury’s verdict is “insufficient”

or “unconstitutional.” 10 Stephens, 462 U.S. at 881–82, 103 S. Ct. at 2745. An

independent basis is insufficient where it would not support the jury’s verdict,

because of constitutional error or any other reason. See, e.g., Yates v. United States,

354 U.S. 298, 312, 77 S. Ct. 1064, 1073 (1957) (“[T]he proper rule to be applied is

that which requires a verdict to be set aside in cases where the verdict is supportable

10
As Stephens explains, there are two slightly different rules in Stromberg. The first
governs cases in which a jury is instructed on two or more independent grounds and one of those
grounds is “insufficient.” Stephens, 462 U.S. at 881, 103 S. Ct. at 2745 (“One rule derived from
the Stromberg case requires that a general verdict must be set aside if the jury was instructed that
it could rely on any of two or more independent grounds, and one of those grounds is
insufficient, because the verdict may have rested exclusively on the insufficient ground.”). The
second rule governs those cases in which one of the charged grounds is an act protected by the
Constitution. Id. at 883–84, 103 S. Ct. at 2746. The State argues that Stromberg is inapplicable
because neither of the prosecution theories involved constitutionally-protected conduct. This is
beside the point because Parker is relying on the first rule of Stromberg, which does not require
that one of the grounds on which the jury was instructed involve constitutionally-protected
conduct. See Stephens, 462 U.S. at 881, 103 S. Ct. at 2745.

26
on one ground, but not on another, and it is impossible to tell which ground the jury

selected”), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct.

2141 (1978). A constitutional error undermines the jury’s verdict, however, only if

that error was not harmless, because most constitutional errors are subject to harmless

error review. Neder, 527 U.S. at 8, 119 S. Ct. at 1833.

Thus, where there are two or more independent bases for a jury’s verdict, we

apply harmless error review to each of them separately. Stromberg does limit our

evaluation of harmlessness. An error with regard to one independent basis for the

jury’s verdict cannot be rendered harmless solely because of the availability of the

other independent basis. If the law were otherwise, the rule of Stromberg would be

eviscerated. At the same time, Stromberg cannot foreclose harmless error review

altogether, because an independent basis for a jury verdict is not insufficient if the

relevant error is, considered separately, harmless.11 This is the only way to harmonize

11
As noted above, the only cases in which we do not apply harmless error review to a
constitutional violation are those in which the error is structural. See Neder, 527 U.S. at 8, 119
S. Ct. at 1833 (listing as structural defects complete denial of counsel, biased trial judge, racial
discrimination in grand jury selection, denial of self-representation at trial, denial of public trial,
and defective reasonable-doubt instruction). The class of such cases is “very limited.” Id.
(quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997)); Rose v.
Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986) (noting that errors to which harmless
error review does not apply are “the exception and not the rule”); United States v. Sanchez, 269
F.3d 1250, 1273 n.43 (11th Cir. 2001) (en banc) (“The list in Neder of structural errors not
subject to harmless-error review is a short one.”).
Other than his citations to Sullivan—a structural error case, see Neder, 527 U.S. at 8, 119
S. Ct. at 1833—Parker does not really argue that the alleged instruction error at issue here was a
structural error. And even if he did, the law of this Circuit is to the contrary. See Rogers v.

27
Stromberg with the general principle that most constitutional violations are subject

to harmless error review.

Our decision in Adams v. Wainwright, 764 F.2d 1356 (11th Cir. 1985), is not

to the contrary. We stated in that case, “Stromberg does not suggest a harmless error

standard based on overwhelming evidence of guilt under the valid portion of the jury

charge. Rather, Stromberg states simply that if it is ‘impossible’ to say on which

ground the verdict rests, the conviction must be reversed.” Id. at 1362 (citing

Stromberg, 283 U.S. at 368, 51 S. Ct. at 535). Parker reads this statement as

forbidding harmless error review altogether. Yet, the Adams opinion by its own terms

only limits harmless error analysis so that an instruction error is not found harmless

“under the valid portion of the jury charge.” Adams, 764 F.2d at 1362. This is

entirely consistent with our interpretation of Stromberg, that error with respect to one

independent basis is not rendered harmless solely because of the availability of

another independent basis where it is impossible to say on which basis the jury’s

verdict rests. Adams limited the scope of the harmless error analysis, but nothing in

that opinion foreclosed harmless error review altogether.

United States, 94 F.3d 1519, 1525 (11th Cir. 1996) (“We would be hard pressed to conclude that
incomplete jury instructions exemplify a structural defect[] in the constitution of the trial
mechanism, which def[ies] analysis by ‘harmless-error’ standards.”) (internal quotation omitted
and modifications in original).

28
 In light of this view of Stromberg, it is clear that the Florida Supreme Court’s

harmless error analysis in Parker 2 was “contrary to” clearly established federal law.

The Florida Supreme Court concluded the deficient felony murder instructions

constituted harmless error because of the overwhelming evidence of premeditation.

See Parker 2, 537 So. 2d at 971. This is exactly what Stromberg forbids: a

conclusion that a constitutional error in one basis for a jury’s verdict is harmless

because of the availability of another, independent basis for the jury’s verdict.

Nonetheless, when we consider Parker’s substantive jury instruction challenge

de novo, we conclude the deficient felony murder instruction was, in fact, harmless.

Limiting our harmless error analysis to the felony murder instructions alone, we

conclude the complete written instructions and the third-degree felony murder

instructions render the error in the trial court’s oral instructions harmless. As the

Supreme Court has explained, “The question in . . . a collateral proceeding is whether

the ailing instruction by itself so infected the entire trial that the resulting conviction

violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1737

(1977) (quotation omitted). The challenged instruction must not be viewed in

isolation; the habeas court should consider the context of the instructions as a whole

as well as the entire trial record. Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475,

482 (1991); Agan v. Vaughn, 119 F.3d 1538, 1545 (11th Cir. 1997) (“A defendant’s

29
right to due process is not violated unless an erroneous instruction, when viewed in

light of the entire trial, was so misleading as to make the trial unfair.”).12 Moreover,

“[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of the law.” Kibbe, 431 U.S. at 155, 97 S. Ct. at 1737. In such cases,

the habeas petitioner’s burden is “especially heavy.” Id.; Devier v. Zant, 3 F.3d 1445,

1465 (11th Cir. 1993). This is especially true where the habeas petitioner failed to

object to the incomplete instruction at trial. Kibbe, 431 U.S. at 154, 97 S. Ct. at 1736

(“It is the rare case in which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court.”).

Parker does not argue the jury heard an erroneous instruction on felony murder;

rather, he complains that no oral instruction on felony murder was given. This

omission cannot be reviewed in isolation from the remainder of the trial record.

McGuire, 502 U.S. at 72, 112 S. Ct. at 482; Agan, 119 F.3d at 1545. The trial record

12
Note that our review of an instruction error during federal habeas proceedings may
differ from how we would review a similar error on direct appeal. The law of this Circuit
concerning appeals involving instructions that omit an essential element of the offense was
articulated in Justice Scalia’s concurrence in Carella v. California, 491 U.S. 263, 267, 109 S. Ct.
2419, 2421–22 (1989) (Scalia, J., concurring). See Rogers v. United States, 94 F.3d 1519, 1526
(11th Cir. 1996) (finding Justice Scalia’s concurrence persuasive in the context of an instruction
omission on direct appeal). In Carella, Justice Scalia reasoned that, because jury factfinding is
constitutionally essential, harmless error review of instruction errors differs from the typical form
of such analysis in that there should be no “expansive inquiry” into the trial record as a whole.
Carella, 491 U.S. at 267, 109 S. Ct. at 2421–22 (Scalia, J., concurring). The implication is an
instruction error can be found harmless only on the basis of the instructions as a whole, not the
entire trial record. On federal habeas review, however, our harmless error analysis is not so
cabined. See McGuire, 502 U.S. at 72, 112 S. Ct. at 482; Agan, 119 F.3d at 1545.

30
includes the written instructions given to the jury, and those instructions contained

a proper felony murder instruction. At worst, the oral instructions were incomplete

with respect to the felony murder charge, but placed in context, the instructions were

corrected by the written instructions given to the jury. The prosecution argued the

felony murder theory as an alternative during its closing arguments. The trial judge

specifically instructed the jury that there were two methods of proving first-degree

murder, and it mentioned—without further explanation—that the second method was

the felony murder rule. In addition, the trial judge gave a complete and accurate

instruction on third-degree murder, the substance of which was similar to the omitted

first-degree felony murder instruction.13 If the jury had been persuaded by the

prosecution’s first-degree felony murder argument but confused by the omission in

the oral instructions of any explanation of the elements of first-degree felony murder,

the jury had available the full and complete first-degree felony murder instruction in

the trial court’s written instructions. Under these circumstances, the omission of an

oral first-degree felony murder instruction would not have misled the jury to the point

of making the trial unfair. Agan, 119 F.3d at 1545. The incomplete oral instruction

13
The difference between the first-degree and third-degree felony murder instructions is
the list of felonies that will support the greater offense. First-degree felony murder applies only
when the underlying felony is sexual battery or robbery; third-degree felony applies when the
underlying felony is other than sexual battery, robbery, and several other offenses not relevant
here. In all other respects, the first-degree and third-degree felony murder instructions are
identical.

31
is not prejudicial in light of the complete written instructions on first-degree felony

murder and third-degree felony murder. Kibbe, 431 U.S. at 155, 97 S. Ct. at 1737.

In addition, Parker did not object during his trial to the incomplete oral instruction on

felony murder. Parker, 537 So. 2d at 970. Accordingly, Parker cannot meet his heavy

burden of showing that the incomplete felony murder oral instruction so infected his

trial as to violate due process. Kibbe, 431 U.S. at 154, 97 S. Ct. at 1737.

This conclusion is supported by other of our Circuit precedents. In Adams, the

habeas petitioner challenged the trial court’s failure to instruct on the elements of the

specific felonies that constituted an aggravating factor. See Adams, 764 F.2d at 1364.

We concluded that these incomplete jury instructions did not so infect the entire

sentencing procedure that the penalty imposed violated due process. Id. In particular,

we emphasized that the habeas petitioner had failed to object at trial, id. at 1365, and

that the relevant instructions were not substantively incorrect but instead only

incomplete. Id. at 1364–65. Similarly, in Devier, the habeas petitioner challenged

the trial court’s failure to instruct as to the standard of proof for a crime that served

as an aggravating circumstance. Devier, 3 F.3d at 1465. Citing Adams, we stressed

that the petitioner had not objected to the incomplete instruction at trial and that the

instructions were merely incomplete, not substantively erroneous. Id. at 1466.

Accordingly, we reversed the district court’s grant of habeas relief.

32
 Parker’s case is not meaningfully distinguishable from Adams and Devier.

Like the petitioners in those cases, Parker failed to object at trial to the incomplete

oral instructions on first-degree felony murder. Parker, 537 So. 2d at 970. Also like

Adams and Devier, the instruction error was an incomplete instruction, not a

substantively erroneous instruction. An incomplete instruction is much less

prejudicial than a substantively erroneous one. Kibbe, 431 U.S. at 155, 97 S. Ct. at

1737. In addition, the jury in Parker’s case did get a complete and accurate first-

degree felony murder instruction, though it came only in the written instructions. In

Adams and Devier, by contrast, nothing indicates that the jury ever received a

complete instruction. For this reason, there is even less prejudice to Parker than there

was to the defendants in Adams and Devier.

Parker relies on Harmon v. Marshall, 69 F.3d 963 (9th Cir. 1995), a case in

which the Ninth Circuit refused to apply harmless error review to a trial court’s

failure to supply any instructions on any elements for two offenses. The Ninth Circuit

relied in part on its decision in Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992), in

which it declined to review for harmless error a trial court’s failure to give oral

instructions to a jury while providing the jury with written instructions. According

to the Ninth Circuit, “It is impossible to know whether the jury in fact read the

instructions on the elements of the offenses.” Harmon, 69 F.3d at 966 (citing

33
Marquez, 963 F.2d at 1316). These Ninth Circuit precedents are not persuasive,

however. The Ninth Circuit clearly relied upon earlier precedents in which it had

found instruction error as to one element of an offense to be reversible per se. See

Harmon, 69 F.3d at 965 (citing cases). The Supreme Court, however, has held that

the omission of instructions as to one element of an offense does not preclude

harmless error review. Neder, 527 U.S. at 9, 119 S. Ct. at 1833 (“Unlike such defects

as the complete deprivation of counsel or trial before a biased judge, an instruction

that omits an element of the offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”).

In light of Neder, Harmon is not persuasive.

The complete written instructions on first-degree felony murder and the

instructions on third-degree felony murder render the deficient oral instruction on

first-degree felony murder harmless. This means the prosecution’s felony murder

theory standing alone—as it must be analyzed under Stromberg—was itself a

sufficient basis for the jury’s verdict. Consequently, there is no error under

Stromberg; either independent ground for conviction presented to the jury would have

been sufficient, standing alone, for the jury to convict. We therefore reject Parker’s

substantive challenge to the felony murder instruction, and we will not grant him

habeas relief on this claim.

34
 B. Ineffective Assistance of Counsel at Capital Sentencing

Next, Parker claims that he is entitled to habeas relief because his attorneys

rendered ineffective assistance of counsel at capital sentencing.

Parker was originally represented by two lawyers from the Public Defender’s

Office, Mr. Aaron and Mr. Mervis. These lawyers retained Dr. Arthur Stillman, a

physician/psychiatrist, to evaluate Parker in part to develop mitigating factors for

presentation at sentencing. Dr. Stillman conducted an extensive evaluation of Parker,

and concluded that Parker engaged in antisocial acts because of substance abuse, and

that he might suffer from an anti-social personality disorder. He also hinted that

evidence of substance abuse would be helpful in developing mitigating factors.

Aaron and Mervis left the Public Defender’s Office before Parker’s trial, and

Parker’s case was reassigned to Daniel Valeyos and Michael Roffino, who

represented Parker through his trial and sentencing. Roffino testified that Aaron and

Mervis had fully prepared for the trial and most of the work had already been done

when he inherited the case shortly before trial. Thus, he and Valeyos spent most of

their time and efforts investigating and preparing for the guilt phase of the trial. Their

strategy was to focus on the guilt phase in hopes of an acquittal, and then, if

necessary, rely primarily on lingering or residual doubt at the penalty phase.

Although Roffino claims Velayos was primarily responsible for the sentencing phase,

35
both attorneys worked on the sentencing phase and Velayos testified he and Roffino

split the responsibility for the sentencing phase all along.

Counsel investigated Parker’s background, talked with some of Parker’s family

members, including Parker’s stepmother, and knew “quite a bit” about Parker’s

teenage years. Counsel “made numerous attempts to get a hold of family members

to get some information on Mr. Parker’s background.” Parker’s family members,

however, were either “unconcerned or uncooperative.” Also, Parker was not helpful

in finding family members because he had not been in contact with them in many

years due to his previous incarceration.

Counsel decided not to introduce evidence of drug abuse because Parker denied

using drugs and such evidence was inconsistent with Parker’s participation in a

“scared straight” anti-drug program in prison. Additionally, there was no evidence

indicating that the person who had committed the offense was acting under the

influence of drugs or alcohol.

Counsel did not call Dr. Stillman to testify during the penalty phase because

Parker’s previous attorneys had indicated the down sides of Dr. Stillman’s evaluation

would outweigh the positive sides. Specifically, counsel did not want Dr. Stillman

to testify that Parker was “sociopathic,” and that his personality traits were consistent

with the crime that had taken place. Counsel thought such evidence would be

36
inconsistent with Parker’s denials that he committed the crimes and their lingering

doubt strategy at sentencing. Furthermore, counsel did not see anything which

indicated that Parker had mental health problems.14

Counsel did not present evidence of Parker’s military service because Parker

had gone AWOL, stolen a military vehicle, been sent to federal prison, and been

dishonorably discharged.

At sentencing, counsel primarily relied on lingering doubt. Dorothea Parker,

Parker’s step-mother, was Parker’s only witness. Her main concern when testifying

appeared to be that the jury would blame her for her stepson’s deeds. Counsel also

introduced letters that people had written commending Parker for his work in a

“scared straight” anti-drug program, in which he made presentations about the

dangers of drug abuse. The jury also heard evidence from the State that Parker had

committed two previous murders for which he was convicted and received life

sentences. See Parker 1, 456 So. 2d at 440.

14
As for Parker’s head injuries, counsel received some information that Parker had fallen,
but did not know Parker was seriously injured.

37
 The jury recommended the death penalty by a vote of 10-2. The trial judge

imposed the death penalty after finding five aggravating factors and no mitigating

factors.15

Parker raised claims of ineffective assistance of counsel in his Rule 3.850

motion filed in Circuit Court. In December 1998, the Circuit Court conducted a

three-day evidentiary hearing during which it heard and considered evidence on

Parker’s claim of ineffective assistance of counsel at capital sentencing. The court

heard testimony from Parker’s trial counsel, Parker’s family members, Dr. Stillman,

and Dr. Haber.

Three of Parker’s cousins, a sister and aunt testified that Parker was raised by

his uncle and grandmother, had abused drugs, was dropped on his head when he was

two, and run over by a train when he was 12 or 13.

Dr. Stillman testified he believes Parker was brain damaged and abusing

substances at the time of the crime, which aggravated Parker’s frontal lobe damage.

Dr. Stillman believes this is corroborated by Parker’s history of violent behavior and

his two childhood head injuries.

15
The trial judge found the crime was (1) cold, calculated and premeditated, (2)
committed under sentence of imprisonment, (3) followed a prior violent felony conviction, (4)
committed during the course of a sexual battery, and (5) committed for pecuniary gain.

38
 Dr. Haber testified he examined Parker, reviewed the trial testimony, read Dr.

Stillman’s reports and read affidavits from Parker’s family members. Dr. Haber

concluded Parker was functioning adequately. Although Dr. Haber found “soft signs”

of organic brain damage, he found no hard signs of brain damage, and he stated that

these “soft signs” might be the result of fatigue and not brain damage. Furthermore,

he found that the facts of the crime were consistent with a person having good

cognitive control and inconsistent with a person having a brain dysfunction or a

person who was intoxicated.

The Circuit Court denied Parker’s claim of ineffective assistance of counsel at

capital sentencing, finding that Parker had not established prejudice under Strickland.

The court found the testimony from Parker’s family to have “little impact” and Dr.

Stillman’s testimony to be “wholly unpersuasive.” The Circuit Court then stated:

The Court cannot conclude that the jury likely would have been
persuaded by such testimony to recommend a sentence other than death,
especially in light of the compelling aggravating circumstances that the
defendant had been convicted of murder on two prior and separate
occasions. Therefore, even assuming, but not deciding, that trial
counsel’s performance was deficient, defendant fails to demonstrate a
reasonable probability of a different result with effective assistance of
counsel. Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).

The Florida Supreme Court affirmed the Circuit Court’s denial of Parker’s

claim of ineffective assistance of counsel at capital sentencing. Parker 3, 611 So.2d

39
at 1227-28. In a portion of its opinion addressing a separate ineffective assistance of

counsel claim, not raised in this proceeding, the Florida Supreme Court imprecisely

stated the prejudice prong of the Strickland test as follows: “In order to prevail on his

claim that trial counsel was ineffective in failing to challenge these prior convictions,

Parker must show that his trial counsel’s performance was deficient and that the result

of the proceeding would have been different absent the deficient performance.”16 Id.

at 1227 (emphasis added). After addressing this separate ineffective assistance claim,

the Florida Supreme Court addressed Parker’s claim of ineffective assistance of

counsel at capital sentencing:

After the December 1988 evidentiary hearing, the trial court
[Circuit Court] denied relief on Parker’s claims that trial counsel was
ineffective in the penalty phase. Here too we agree with the trial judge’s
conclusion that Parker failed to meet the Strickland test. She found, in
response to claims that family members should have been called in the
penalty phase, that
in these post-conviction proceedings, three cousins, a sister and
an aunt were called. However, because [Parker] had spent more
than ten years in prison for a prior murder, these witnesses had
had little contact with [him] in the years immediately before the
crimes were committed. Their statements had little impact, and,
at times, supported the view that [Parker] appeared normal, rather
than brain-damaged and impaired.

16
The proper standard for prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984) is whether the jury’s failure to hear the mitigating evidence undermines the
confidence in its verdict, thus demonstrating a reasonable probability of a different result.

40
 The trial court also rejected the claim that counsel was ineffective
for failing to present the testimony of Dr. Stillman, a psychiatrist, in the
penalty phase. The court explained:
Dr. Stillman’s testimony is wholly unpersuasive. His
conclusion that [Parker] is brain-damaged rests on the relatives’
post-sentencing report of [Parker’s] brief loss of consciousness in
two childhood accidents. Significantly, [Parker] himself denied
any accidents in his 1980 interview with Dr. Stillman and [Parker]
presents no medical record of any kind to substantiate these
alleged injuries. In fact, his IQ, as tested by Dr. Stillman, is
slightly higher than average, and there is no objective indication
of [Parker’s] compromised intellectual functioning. Dr.
Stillman’s opinion is simply that brain damage invariably results
from loss of consciousness, no matter how brief the period of
unconsciousness. Moreover, Dr. Stillman’s conclusions that
[Parker] was incompetent to stand trial and insane at the time of
the offense–neither conclusion being urged by [Parker] in these
proceedings, and both conclusions being contradicted by the
overwhelming evidence in the case–undermine the credibility of
his further opinion that [Parker’s] capacity to conform his conduct
to law was impaired.
The court cannot conclude that the jury likely would have
been persuaded by such testimony to recommend a sentence other
than death, especially in light of the compelling aggravating
circumstance that [Parker] had been convicted of murder on two
prior and separate occasions.
We find no error in the trial court’s conclusions.

Id. at 1227-28.

Parker’s ineffective assistance claim is governed by the familiar two-prong

analysis from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

“First, the defendant must show that counsel’s performance was deficient. . . .

Second, the defendant must show that the deficient performance prejudiced the

41
defense.” Id. at 687, 104 S. Ct. at 2064. To establish ineffectiveness, a “defendant

must show that counsel’s representations fell below an objective standard of

reasonableness.” Id. To establish prejudice, a defendant “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.

1. “Contrary To”

The District Court found the Florida Supreme Court's decision denying

Parker’s Rule 3.850 motion to be “contrary to” Strickland because the Florida

Supreme Court misstated the prejudice prong as requiring Parker to show “that the

result of the proceeding would have been different,” rather than “a reasonable

probability” that the result of the proceeding would have been different. After

conducting a de novo review, however, the District Court denied Parker’s ineffective

claim, finding Parker had not established either the deficient performance or prejudice

prong of Strickland.

The State argues the Florida Supreme Court’s decision was not “contrary to”

federal law simply because it improperly paraphrased the prejudice prong of

Strickland in one sentence of its opinion. The State points out the Florida Supreme

Court correctly cited Strickland (which established the “reasonable probability”

42
standard) as the controlling federal law. Furthermore, the Florida Supreme Court

relied heavily upon the reasoning of the Circuit Court and adopted its conclusions.

The Circuit Court had correctly enunciated the prejudice prong of Strickland, finding

“even assuming, but not deciding, that trial counsel’s performance was deficient,

defendant fails to demonstrate a reasonable probability of a different result with

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984).” Although the Florida Supreme Court did not quote

this part of the Circuit Court opinion or use the words “reasonable probability” in its

opinion, the Florida Supreme Court did quote the Circuit Court’s statement that it

“cannot conclude that the jury likely would have been persuaded by such testimony

to recommend a sentence other than death. . . .” Parker 3, 611 So. 2d at 1228

(emphasis added).

By using the modifier “likely” instead of “reasonable probability,” the Florida

Supreme Court did not precisely enunciate the prejudice prong of Strickland.

Nevertheless, we do not read its opinion as a rejection of Strickland or an adoption

of a “more likely than not” standard, which would be “contrary to” federal law. See

Williams v. Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495, 1519 (2000) (stating that a

state court decision rejecting an ineffective assistance claim “on the grounds that the

prisoner had not established by a preponderance of the evidence that the result would

43
have been different,” would be contrary to clearly established federal law “because

we held in Strickland that the prisoner need only demonstrate a ‘reasonable

probability that . . . . the result of the proceeding would have been different.’”).

In Wright v. Moore, 278 F.3d 1245 (11th Cir. 2002), this court stressed that

under § 2254(d)(1) we review the state court’s “decision” and not necessarily its

rationale. Id. at 1255 (“The statutory language [of § 2254(d)(1)] focuses on the result,

not on the reasoning that led to the result . . . .”). We cautioned that overemphasis on

the language of a state court’s rationale would lead to “a ‘grading papers’ approach

that is outmoded in the post-AEDPA era.” Id. at 1255; see also Hennon v. Cooper,

109 F.3d 330, 335 (7th Cir. 1997) (rejecting the approach that § 2254(d)(1) would

have federal habeas courts judge the quality of the state court’s reasoning, because

such an approach “would place the federal court in just the kind of tutelary relation

to the state courts that the recent amendments are designed to end”). Although a state

court opinion containing a “conspicuous misapplication of Supreme Court precedent”

would not be entitled to deference under the AEDPA, “[w]e will not presume that a

state court misapplied federal law, and absent indication to the contrary will assume

that state courts do understand ‘clearly established Federal law . . . as determined by

the Supreme Court of the United States.’” Wright, 1256 F.3d at 1256 n.3 (quoting 28

U.S.C. § 2254(d)(1)).

44
 Recently, the Supreme Court held that the California Supreme Court’s

occasional reference to Strickland’s “reasonable probability” standard by use of the

term “probable” without the modifier may have been imprecise, but was not a

repudiation of Strickland and did not render the California Supreme Court’s decision

“contrary to” Strickland. Woodford v. Visciotti, __ U.S. __, 123 S. Ct. 357, 359

(2002). The Court found it particularly relevant that although the California Supreme

Court occasionally used imprecise language, in other parts of its opinion the

California Supreme Court properly described the Strickland standard in terms of a

“reasonable probability” and “undermin[ing] confidence in the outcome.” Id. In

reversing the Ninth Circuit, the Court found the Ninth Circuit’s “readiness to attribute

error is inconsistent with the presumption that state courts know and follow the law,”

and “also incompatible with § 2254(d)’s ‘highly deferential standard for evaluating

state-court rulings,’ which demands that state court decisions be given the benefit of

the doubt.” Id. at 360 (internal citation omitted).

Similarly, in this case, although the Florida Supreme Court used imprecise

language to describe the prejudice prong, the court correctly cited Strickland as the

controlling federal authority, relied upon the Circuit Court’s reasoning (which

included a proper enunciation of the “reasonable probability” standard), and cited the

Circuit Court’s conclusion that it “cannot conclude that the jury likely would have

45
been persuaded by such testimony to recommend a sentence other than death . . . .”

Parker 3, 611 So. 2d at 1228. Despite the imprecise language used by the Florida

Supreme Court, we conclude the court understood and applied the correct prejudice

standard from Strickland. This deferential approach is consistent with our view that

if a state court denies a prisoner’s claim without any reasoning at all, it is still entitled

to AEDPA deference. See Wright, 278 F.3d at 1255. Thus, we conclude the Florida

Supreme Court’s decision was not “contrary to” clearly established federal law as

determined by the United States Supreme Court.17

2. De Novo Review

Even if the Florida Supreme Court’s decision were contrary to Strickland, we

would affirm the district court’s de novo analysis that Parker has not established

deficient performance or prejudice under Strickland. Our own review of the record,

the factual findings of the district court (which we review for clear error), and the

factual findings of the state courts (which we must accept as true unless rebutted by

clear and convincing evidence), would lead us to conclude that counsel’s performance

was not constitutionally deficient, and, even if it were, there is no reasonable

17
For the reasons stated in the following section, we also conclude the Florida Supreme
Court’s decision did not involve an unreasonable application of clearly established federal law as
determined by the United States Supreme Court; nor was it based on an unreasonable
determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).

46
probability that, absent counsel’s deficient performance, the result of the proceeding

would have been different.

a. Deficient Performance

“No absolute rules dictate what is reasonable performance for lawyers.”

Chandler v. United States, 218 F.3d 1305, 1317 (11th Cir. 2000). “Judicial scrutiny

of counsel’s performance must be highly deferential,” and “a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)). Although there is no

absolute duty to investigate particular facts or a certain line of defense, a complete

failure to investigate may constitute deficient performance of counsel in some

circumstances. Crawford v. Head, 311 F.3d 1288, 1297 (11th Cir. 2002); see Housel

v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001) (“A failure to investigate can be

deficient performance in a capital case when counsel totally fails to inquire into the

defendant’s past or present behavior or life history.”).

Strickland requires that counsel either make a reasonable investigation of the

law and facts relevant to a case or make a reasonable decision not to carry out a

47
particular investigation. Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066.

“Strategic choices made after thorough investigation of the law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support limitations on investigation.” Id.

Similarly, “[n]o absolute duty exists to introduce mitigating or character

evidence.” Chandler, 218 F.3d at 1319 (11th Cir. 2002). “Counsel who fail to present

any mitigating evidence, even when it is available at sentencing, may still be deemed

constitutionally effective, provided that the decision not to present mitigating

evidence was a tactical one based on the results of a reasonable investigation.”

Hubbard v. Haley, 317 F.3d 1245, 1260 (11th Cir. 2003) (citations omitted).

“Considering the realities of the courtroom, more is not always better. Stacking

defenses can hurt a case. Good advocacy requires ‘winnowing out’ some arguments,

witnesses, evidence, and so on, to stress others.” Chandler, 218 F.3d at 1319.

Parker argues his attorneys were ineffective because they spent virtually all of

their time preparing for the guilt phase of the trial, did not adequately prepare for the

sentencing phase of the trial, and relied solely on a reasonable doubt argument at

sentencing which the jury had already rejected during the guilt phase. Specifically,

Parker claims counsel should have presented mitigating evidence of his

48
disadvantaged upbringing, alcohol and substance abuse, psychological disorders, and

brain damage. Parker suggests counsel should have presented this evidence through

the testimony of his family members, Dr. Stillman, and Dr. Haber.

We conclude Parker’s attorneys were not deficient in focusing their time and

energy on acquittal at trial and focusing their arguments at sentencing on residual

doubt (instead of other forms of mitigation). In cases like this, when guilt is in fact

denied and counsel reasonably employs a lingering doubt strategy at sentencing, a

“lawyer’s time and effort in preparing to defend his client in the guilt phase of a

capital case continues to count at the sentencing phase.” Tarver v. Hopper, 169 F.3d

710, 715 (11th Cir. 1999). Creating lingering or residual doubt over a defendant’s

guilt is not only a reasonable strategy, but “is perhaps the most effective strategy to

employ at sentencing.” See Chandler, 218 F.3d at 1320; Tarver, 169 F.3d at 715–16

(citing a comprehensive study on the opinions of jurors in capital cases and other law

review articles concluding that raising residual doubt over a defendant’s guilt is “the

best thing a capital defendant can do to improve his chances of receiving a life

sentence”).18

18
Parker claims his attorney’s reliance on lingering doubt was not a strategic choice, but
resulted from inadequate preparation. Given the testimony from Parker’s attorneys regarding
their investigation, we disagree.

49
 Parker’s attorneys talked to some of Parker’s family members, including his

step-mother, and investigated Parker’s background. Their investigation was limited,

however, because they knew Parker had been incarcerated for a previous murder and

thus had little contact with his family in the years immediately before this murder.

Roffino testified he attempted to investigate Parker’s family background, but Parker

was not helpful in finding family members and the family members who Roffino was

able to contact were either “unconcerned or uncooperative.” Given counsel’s

reasonable attempts to investigate Parker’s family background, the difficulties in

procuring information from Parker’s family, and the limited value of such

information, Parker’s attorneys were not deficient in failing to seek out additional

mitigating evidence from Parker’s family members.

Counsel reasonably decided not to present evidence of drug abuse because it

was inconsistent with Parker’s denial that he was abusing drugs and his involvement

in a drug treatment program while in prison. Moreover, there was no evidence that

Parker was intoxicated at the time of the crime.

Counsel did not see any signs of brain damage or mental disorder.

Additionally, counsel feared that evidence of mental defects and personality disorder

would undermine Parker’s credibility and be inconsistent with his alibi defense.

50
 Counsel decided not to put Dr. Stillman on the stand because Dr. Stillman had

opined that Parker was antisocial and a sociopath, a diagnosis the jury might not

consider mitigating. Furthermore, we must accept the Circuit Court’s and Florida

Supreme Court’s factual finding that Dr. Stillman’s testimony regarding brain

damage, substance abuse, and personality disorder was “wholly unpersuasive.”

Parker 3, 611 So. 2d at 1228. Counsel cannot be deemed deficient in failing to call

a witness whose testimony is of such limited value.19

Considering the limited value of the mitigating evidence Parker claims should

have been introduced, and the fact that such evidence was often inconsistent with

other evidence already before the court, we conclude Parker’s attorneys were

reasonable in relying on lingering doubt and not introducing this other potentially

mitigating evidence.

b. Prejudice

Even assuming Parker’s counsel’s performance was deficient, Parker would not

demonstrate prejudice. Given the strength of the aggravating factors and the relative

weakness of the mitigating evidence Parker argues should have been presented, there

is no reasonable probability that, absent the deficient performance, the outcome of the

19
We also find counsel was not deficient in failing to provide Dr. Stillman with
background information which could have been used in his assessment of Parker.

51
proceedings would have been different. The aggravating factors in this case are

substantial The jury knew that Parker had committed two previous murders for

which he had received life sentences. The state trial judge found: (1) the crime was

cold, calculated and premeditated, (2) committed under sentence of imprisonment, (3)

followed a prior violent felony conviction, (4) was committed during the course of

a sexual battery, and (5) was committed for pecuniary gain.20

The Circuit Court and Florida Supreme Court found the testimony from

Parker’s family members would have “had little impact” on the penalty phase because

they had “little contact” with Parker in the years preceding the murder and their

testimony “at times, supported the view that [Parker] appeared normal, rather than

20
The trial court specifically found:

The testimony of the three surviving victims in this case indicated
NORMAN PARKER, JR. acted without any of the qualities we identify as
belonging to rational and moral human beings. Apparently, NORMAN PARKER,
JR. came along with his friend and drug dealing partner, Robbie Manson, in a
planned drug “rip-off” of the victim. Whereas, Manson was willing to leave after
taking the cocaine and other items from the victims, NORMAN PARKER, JR.,
ignoring Manson’s repeated urgings to leave, stayed to rape Silvia Arana. For no
apparent reason other than to silence Silvia Arana’s objecting boyfriend,
NORMAN PARKER, JR. shot Julio Chavez in the back, and proceeded
immediately thereafter, while Julio was languishing on the bed, to rape and defile
Silvia Arana. . . .
The depravity of NORMAN PARKER, JR.’s acts, combined with the clear
evidence that these acts were not isolated, but are part of a pattern of behavior in
his life that cannot be tolerated in our society, require the imposition of the death
penalty.

52
brain-damaged and impaired.” Parker 3, 611 So. 2d at 1228. The Circuit Court and

Florida Supreme Court also found Dr. Stillman’s testimony “wholly unpersuasive.”

Id. Parker has not rebutted these factual findings with clear and convincing evidence.

See 28 U.S.C. § 2254(e)(1).

Dr. Haber’s testimony is likewise of very limited value to Parker. Although Dr.

Haber found some soft signs of brain damage, his other findings refute a finding of

mental impairment. In fact, the district court found that Dr. Haber’s testimony

rebutted Dr. Stillman’s testimony that Parker suffers from brain damage.

Given the state court’s factual findings, we conclude that assuming, but not

deciding, trial counsel’s performance was deficient, Parker has failed to demonstrate

a reasonable probability of a different result with effective assistance of counsel.

IV. CONCLUSION

The District Court incorrectly concluded that Parker’s substantive challenge

to the deficient felony murder instructions was procedurally barred by the Florida

Supreme Court. In fact, Parker presented this substantive challenge during his state

habeas proceedings and the Florida Supreme Court did not procedurally bar that

claim. We must therefore review that claim on the merits. The Florida Supreme

Court’s conclusion that the deficient felony murder instructions constituted harmless

error because of overwhelming evidence of premeditation was contrary to clearly

53
established federal law under Stromberg. However, in reviewing Parker’s challenge

de novo, we find that any error in the oral instructions was rendered harmless by the

complete and accurate written instructions on first-degree felony murder and the

instructions on third-degree felony murder.

The state court adjudication of Parker’s claim of ineffective assistance of

counsel at capital sentencing did not result 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; nor did it result in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented

in the state court proceedings. See 28 U.S.C. § 2254(d). Furthermore, after

conducting a de novo review of this claim and giving proper deference to the factual

findings made by the state courts, we conclude that Parker could not demonstrate that

his counsel’s performance was constitutionally deficient, and assuming counsel’s

performance was deficient, Parker could not show that the deficient performance

prejudiced his defense.

AFFIRMED.

54