[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
January 31, 2005
No. 03-12598 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 99-01413 CV-ORL-18KRS
TED HERRING,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF
CORRECTIONS,
ATTORNEY GENERAL, STATE OF
FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 31, 2005)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Appellant Ted Herring filed a habeas petition under 28 U.S.C. § 2254
challenging his 1982 state-court convictions for armed robbery and first-degree
murder, and his resulting death sentence. The district court denied Herring’s
petition. We granted a certificate of appealability (COA) on three issues. We now
affirm.
I. BACKGROUND
A. Factual Background
On May 29, 1981, Herring held up a 7-Eleven convenience store in Daytona
Beach. Herring shot and killed the store clerk. A hold-up note was found at the
scene. At some point, the police determined that Herring’s fingerprint was on the
note. The murder weapon was never found.
After the robbery, Herring was arrested on charges relating to a stolen car
and was taken to the Daytona Beach Police Station. He waived his Miranda rights
and made three statements, in two of which he confessed to the robbery and
homicide at the 7-Eleven store. Three officers were involved in the interrogations.
In his first statement, which was taped, Herring told the officers he went to
the store with the intent to commit a robbery, but before he could commit the
crime, a second man robbed the store and killed the clerk. In a second, unrecorded
statement made privately to Detective Varner, Herring stated he shot the clerk in
2
the head and then, while the clerk was lying on the ground, shot the clerk a second
time to eliminate him as a witness. In a final, taped statement to the officers,
Herring claimed he robbed the store and only accidentally shot the clerk when he
thought the clerk was coming across the counter. Herring stated he shot the clerk
a second time out of fear.
B. Procedural Background
In February 1982, Herring was tried in Volusia County for armed robbery
and first-degree murder. He was represented by two public defenders: Howard
Pearl and Peyton Quarles. Pearl handled the guilt phase of the trial and Quarles
handled the penalty phase.
Detective Varner testified at the guilt phase regarding Herring’s unrecorded
statement. Following Varner’s direct testimony, Pearl cross-examined him on the
length of interrogation and whether Herring received food or time to rest during
the interrogation. Pearl similarly cross-examined the two other officers involved
in questioning Herring. Herring testified on his own behalf, relating his initial
story—that he planned to commit the robbery, but another person beat him to it
and killed the clerk.
The jury found Herring guilty on both counts against him. The penalty
phase followed. The only witness testifying in mitigation was Herring’s mother,
3
Dorothy Meyers. The jury returned an advisory sentence of death by an
eight-to-four vote.
The trial judge sentenced Herring to death. In aggravation, the trial judge
found and considered as aggravating circumstances: (1) “[t]he Defendant has
been previously convicted of another capital offense or of a felony involving the
use o[r] threat of violence to some person;” (2) “[t]he crime for which the
Defendant [wa]s to be sentenced was committed while he was engaged in the
commission of the crime of robbery;” (3) “[t]he crime for which the Defendant
[wa]s to be sentenced was committed for the purpose of avoiding or preventing a
lawful arrest or effecting an escape from custody;” and (4) “[t]he crime for which
this Defendant [wa]s to be sentenced was committed in a cold, calculated, and
premeditated manner without any pretense of moral or legal justification.” In
mitigation, the trial judge found and considered as mitigating circumstances:
(1) the Defendant was 19 years old at the time of the crime; and (2) “Defendant
had a difficult childhood,” i.e., “Defendant was raised essentially without a father,
was hyperactive, had learning disabilities, and had trouble in school.” The Florida
Supreme Court affirmed Herring’s convictions and death sentence on direct
appeal.
4
In April 1985, Herring filed his first Florida Rule of Criminal Procedure
3.850 motion for post-conviction relief. The state trial court denied the motion
and the Florida Supreme Court affirmed. In March 1987, Herring filed a petition
in the Florida Supreme Court for a writ of habeas corpus. The Florida Supreme
Court denied relief. Herring then filed a petition in federal court under 28 U.S.C.
§ 2254 for a writ of habeas corpus. The district court dismissed the petition
without prejudice due to Herring’s failure to exhaust his state court remedies.
In 1989, Herring filed a second Rule 3.850 motion, claiming, inter alia, that
his death sentence should be vacated under Rogers v. State, 511 So. 2d 526, 533
(Fla. 1987), which declared the premeditation aggravator inapplicable to cases like
Herring’s. The state trial court denied relief under Rogers. The court did,
however, grant Herring leave to amend his motion to add a claim that Pearl
operated under an impermissible conflict of interest in serving both as Herring’s
trial counsel and as a special deputy sheriff. The trial court denied the amended
motion. The Florida Supreme Court held the premeditation aggravating factor
should not have been applied, but affirmed without granting a new sentencing
hearing. On the conflict-of-interest claim, the court remanded for an evidentiary
hearing.
5
On remand, Herring’s conflict-of-interest claim was consolidated for
hearing with similar claims raised by other defendants who had been represented
by Pearl. The state trial judge denied relief. The Florida Supreme Court remanded
for individual hearings on the appealed cases, including Herring’s. The state trial
court held a second hearing and again denied Herring’s conflict-of-interest claim.
The Florida Supreme Court affirmed.
Herring filed a § 2254 petition for a writ of habeas corpus in federal district
court. The district court denied relief and denied a COA. This Court granted a
COA on three issues:
(1) Whether the Florida Supreme Court acted contrary to
Clemons v. Mississippi, 110 S. Ct. 1441 (1990) and violated the
Eighth and Fourteenth Amendments in upholding Herring’s sentence
despite the elimination of the heightened premeditation aggravating
circumstance;
(2) Whether Herring was deprived of the effective assistance of
counsel at the sentencing phase of his criminal trial; and
(3) Whether, in evaluating Howard Pearl’s conflict of interest
under the Sixth Amendment, the state courts unreasonably applied
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980) to the facts of Herring’s
case.
6
II. DISCUSSION
A. Standard of Review Under 28 U.S.C. § 2254
Our habeas review of a state court’s rulings is restricted by § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Section 2254(d) provides:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(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). “Under the ‘contrary to’ clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412–13, 120 S. Ct. 1495, 1523 (2000).
A state court’s decision involves an “unreasonable application” of clearly
7
established federal law under § 2254(d)(1) if its application is objectively
unreasonable. Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001). “[A]n
unreasonable application of federal law is different from an incorrect or
erroneous application of federal law.” Williams, 529 U.S. at 412, 120 S. Ct. at
1523.
A federal court’s review is further restricted by 28 U.S.C. § 2254(e), which
provides that “a determination of a factual issue made by a State court shall be
presumed to be correct” and the petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
B. Claim under Clemons v. Mississippi
Under the Supreme Court’s ruling in Clemons v. Mississippi, 494 U.S. 738,
110 S. Ct. 1441 (1990), when a state appellate court determines a death sentence is
based on an invalid or improperly defined aggravating factor, that court may
reweigh the aggravating and mitigating evidence, conclude the error was harmless,
or remand for a new sentencing. Id. at 741, 754, 110 S. Ct. at 1444, 1451.
Herring contends that when the Florida Supreme Court struck the
heightened premeditation aggravating circumstance but nevertheless affirmed his
death sentence, it failed to conduct any of the three analyses set out as permissible
8
in Clemons. In response, the State argues: (1) Herring’s claim is procedurally
barred; (2) Herring’s claim alleges nothing more than an error of state law and
therefore is not cognizable in federal habeas corpus; and (3) Herring received all
the process he was due. The district court rejected Herring’s claim on two bases,
one of which was that the claim was procedurally barred.
Herring did not present any arguments pertaining to procedural bar in his
initial brief. In his reply brief, however, Herring argues his Clemons claim is not
procedurally barred because he did present his Clemons argument to the Florida
Supreme Court during proceedings on his second 3.850 motion and the Florida
Supreme Court reached the merits of his claim.1 As we repeatedly have
admonished, “[a]rguments raised for the first time in a reply brief are not properly
before a reviewing court.” United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir.
1994) (citation omitted); see also United States v. Whitesell, 314 F.3d 1251, 1256
(11th Cir. 2002) (Court need not address issue raised for first time in reply brief),
cert. denied, 539 U.S. 951, 123 S. Ct. 2628 (2003); United States v. Dicter, 198
F.3d 1284, 1289 (11th Cir. 1999) (issue raised for first time in reply brief waived);
United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996) (declining to
1
We note Herring does not argue in the alternative that there is cause and prejudice
excusing his procedural default or that, if raised for the first time in state court now, it would not
be barred under state law procedural bar principles.
9
consider arguments raised for the first time in a reply brief). Although Herring’s
failure to present his procedural bar argument in his initial brief is determinative,
we nevertheless briefly discuss procedural bar and the arguments Herring raises in
his reply brief.
“A state habeas corpus petitioner who fails to raise his federal claims
properly in state court is procedurally barred from pursuing the same claim[s] in
federal court absent a showing of cause for and actual prejudice from the default.”
Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999) (citing Wainwright v. Sykes,
433 U.S. 72, 87, 97 S. Ct. 2497, 2506–07 (1977)). This procedural default arises
in two situations: (1) where the state court itself correctly applies state law
procedural bar principles to conclude a federal claim is barred; and (2) where a
claim was never raised in state court, and it is clear the unexhausted claim would
now be barred under state law procedural bar principles. Id. at 1302–03 (citations
omitted). The State’s argument is that Herring’s Clemons claim falls within the
second category. We agree.
Herring challenged the application of the cold, calculated, and premeditated
aggravating factor in his direct appeal.
Herring again challenged the application of the aggravating factor in his
initial brief appealing the denial of his second Rule 3.850 motion, and argued a
10
new sentencing hearing should be conducted. In his reply brief to the Florida
Supreme Court, Herring argued the jury’s improper consideration of the
heightened aggravating factor could not be harmless beyond a reasonable doubt.
Herring further stated:
Indeed, because “the procedure to be followed by the trial judges and
juries is not a mere counting process of X number of aggravating
circumstances and Y number of mitigating circumstances,” Elledge,
346 So. 2d at 1003, this Court has consistently ordered new
sentencing hearings in similar cases. . . . The result here should be no
different. Cf. Clemons v. Mississippi, 58 U.S.L.W. 4395, 4399–4400
& n.5 (Mar. 28, 1990) (failure to remand to a sentencing jury violates
the Constitution “if the decision is made arbitrarily”).
The Florida Supreme Court struck the challenged aggravating factor, but affirmed
Herring’s death sentence stating:
While the cold, calculated, and premeditated aggravating factor
no longer applies to the circumstances in Herring, we find that this is
not a change that requires a new sentencing hearing in this case.
None of the facts and circumstances that were before the jury
regarding how Herring committed the murder are changed. If the
aggravating circumstance of a ‘conviction of a prior crime of
violence’ had been eliminated, that would have changed the facts and
circumstances before the jury.
The evidence before the jury established that Herring shot the
clerk once in the head and again after the clerk fell to the floor and
that the second shot was to prevent the clerk from being a witness
against him. Given the other aggravating and mitigating factors that
went into the weighing process in the sentencing phase of this case,
we find that the result of the weighing process would not have been
different had this aggravating circumstance not been articulated as a
11
factor in the sentencing. We find that the elimination of this factor,
under the circumstances of this case, does not compromise the
weighing process of either the judge or jury.
Herring v. State, 580 So. 2d 135, 138 (Fla. 1991) (citations omitted).
In his motion for a rehearing, Herring made three arguments as to why the
Florida Supreme Court’s decision was incorrect. Herring first argued the court
committed constitutional error in that it failed to apply its “long-standing rule” of
remanding for a new sentencing hearing when it strikes one or more aggravating
circumstances relied on at sentencing and mitigating circumstances are present.
Herring cited Clemons in this section of his motion, including again a
parenthetical stating that “failure to remand to a sentencing jury violates the
Constitution ‘if the decision is made arbitrarily.’” In its response, the State
pointed out that in Clemons, the Supreme Court “established that state courts may
conduct a harmless error analysis if an aggravating circumstance is stricken.”
Herring acknowledged as much in his second argument—that the Florida Supreme
Court’s “finding of harmless error [could not] be squared with the facts of th[e]
case.”2 Importantly, although Herring challenged the court’s finding of harmless
2
Herring cited Clemons in this section of his motion as support for his contention that
“[t]he circumstances surrounding both Herring’s crime and his sentencing hearing make clear
that the erroneous application of the heightened premeditation aggravating circumstance cannot
be deemed harmless beyond a reasonable doubt.”
12
error, he did not assert the court failed to engage in harmless error analysis.
Indeed, Herring asserted the Florida Supreme Court had engaged in harmless error
review, but argued the court erred in its finding of harmlessness. Herring’s third
argument was that the court’s opinion “appears to announce a new rule” that the
erroneous application of a statutory aggravator may be deemed harmless where
elimination of the circumstance does not alter the facts and circumstances
regarding how the defendant committed the murder, and thereby “calls into
question the constitutionality, as applied, of Florida’s capital sentencing scheme.”3
After reviewing Herring’s state court filings, we conclude that, although
Herring made many arguments pertaining to the cold, calculated, and premeditated
aggravator, he did not preserve the argument he now makes—that the Florida
Supreme Court erred in affirming his sentence after striking the factor without
performing the analysis set out by the United States Supreme Court in
Clemons—and the Florida Supreme Court did not consider such a claim.
3
With respect to this final point, Herring contended:
In a case involving substantial mitigation, it is simply impossible to know how the
sentencers would have performed the weighty, yet delicate, task of balancing the
aggravating and mitigating factors in the absence of one of the aggravating
factors. To suggest that the presence or absence of one of the aggravating factors
in such a case makes no difference in the weighing process threatens to return the
Florida statutory scheme to the “standardless discretion” condemned in Furman.
13
In summary, we affirm the district court’s denial of Herring’s claim. The
district court found Herring’s claim to be procedurally barred. Herring failed to
argue the procedural bar issue in his initial brief. Even if the arguments set out in
Herring’s reply brief had properly been presented in his initial brief, we would
have rejected them.4
C. Claim of Ineffective Assistance of Counsel at Penalty Phase
Herring next claims he received ineffective assistance of counsel at the
penalty phase of his trial. Peyton Quarles represented Herrring at the penalty
phase. Herring makes a number of allegations of ineffectiveness. Neither the state
courts nor the district court held an evidentiary hearing on Appellant’s claims.
A petitioner is entitled to relief based on ineffective assistance of counsel
when he establishes (1) his counsel’s performance fell below an objective standard
of reasonableness, and (2) “there is a reasonable probability that, but for counsel’s
errors and omissions, the result of the proceedings would have been different.”
Parker v. Head, 244 F.3d 831, 840 (11th Cir. 2001) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Both prongs are
4
For the first time, in a supplemental letter brief, Herring asserts additional procedural
bar arguments. “[P]arties cannot properly raise new issues at supplemental briefing. United
States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (citation omitted).
14
mixed questions of law and fact. Mills v. Singletary, 161 F.3d 1273, 1285 n.15
(11th Cir. 1998) (citation omitted).
1. Quarles’ failure to present mitigating evidence in his possession and
failure to conduct a reasonable investigation
During the penalty phase, Herring’s mother, Dorothy Meyers, was the only
witness to testify in mitigation. Herring contends Quarles should have done more
in mitigation. Specifically, Herring contends: (1) Quarles was ineffective in that
he failed to investigate and present other readily available mitigating evidence
pertaining to Herring’s mental condition, background, and character; and
(2) Quarles was ineffective in that he failed to present mitigating evidence in his
possession at the time of trial. Underlying Herring’s failure-to-investigate claim is
the premise that “counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.” Wiggins
v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003) (quoting Strickland, 466
U.S. at 691, 104 S. Ct. at 2066); see also Middleton v. Dugger, 849 F.2d 491, 493
(11th Cir. 1988) (“An attorney has a duty to conduct a reasonable investigation,
including an investigation of the defendant’s background, for possible mitigating
evidence.”) (citing Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.
1986)).
15
a. State Court Decisions
The state trial court held that Herring did not satisfy either prong of the
Strickland ineffectiveness inquiry. That court concluded:
5. The real nub of Defendant’s motion is the claim of
ineffective trial counsel. Despite the standards set forth in Knight and
Strickland it is very difficult to go back and determine whether trial
counsel’s actions or inactions amounted to ineffective assistance of
counsel. The Court will attempt to deal with the allegations of
ineffectiveness and analyze them in light of Knight and Strickland.
A. In Paragraph “85” of the 3.850 the Defendant alleges
there were reports (see Defendant’s exhibits “3” and “4”) that the
Defendant had serious mental and emotional problems. The
Defendant now complains these reports should have been introduced.
First it should be noted that at least one of the reports was a result of
an interview done when the Defendant was 13 years old. Secondly,
the defense did establish learning disabilities and psychological
problems through the testimony of the Defendant’s mother. Thirdly,
one of the reports indicates the mother, who was a defense witness
and represented to be a concerned mother, was not keeping the child’s
appointments with the counselor. Lastly, the reports indicate the
Defendant was of dull normal intelligence. Taking this all into
consideration this Court does not find the failure to introduce these
reports was a professional deficiency.
B. In Paragraph “86” of the 3.850 the defense claims
trial counsel failed to adequately present other readily available
mitigation evidence. This is perhaps the most difficult assertion to
analyze. Here more than any other area there is tendency to second
guess. In every case that is lost counsel may go back, with the
advantage of hindsight, and say this or that should or could have been
done.
16
The defense had the Defendant’s mother testify during
the sentencing phase. She did establish the Defendant’s home life
was not good; his parents were separated; he was hyperactive with a
low IQ and a learning disability; he had psychological problems; that
his mother loved Ted. The psychological reports would have been
cumulative to the mother’s testimony. It also m[u]st be stressed that
the trial court did list and consider these matters as mitigating factors.
As to the information set forth in exhibits “7” and “8”
the Court questions the importance of the information from the
Defendant’s former teachers. Obviously much time had passed since
they had contact with the Defendant. Their testimony was of doubtful
value.
Perhaps the defense should have had the Defendant’s
other relatives testify on his behalf. While to a large degree it may
have been cumulative to that of the mother, perhaps it may in
someway [sic] have helped the Defendant. But this Court cannot
conclude that trial counsel was deficient in presenting the mother
alone. It must be remembered that the area of who trial counsel
selects to testify i[s] fr[a]ught with peril. Even the mother, who was
an effective defense witness, did admit her son was involved in drug
related problems in New York. So trial counsel is caught in a
dilemma. He must try to put on mitigating evidence yet not let the
State have an opportunity to further damage the Defendant either by
cross or rebuttal. This is especially true where the Defendant was
charged with several other armed robberies and apparently was
having drug related problems in New York City. All in all the Court
finds trial counsel was not deficient in only presenting the mother’s
testimony. This is a matter of trial strategy and should not be second
guessed.
....
6. This Court must view trial counsel’s alleged errors and
omissions in light of the case as a whole. It was a difficult case from
the defense standpoint. The Defendant confessed to the crime.
17
Efforts to suppress the confession failed. The Defendant not only
initially gave conflicting stories to police but perhaps most damaging
of all he told the jury the preposterous story of how a second robber
“beat him to the punch”; robbed and shot the clerk. Frankly, this
preposterous story doomed the Defendant not only as to a conviction
but as to sentence as well. There was little the defense could do to
save the Defendant after that.
Additionally, the aggravating factors in this case strongly
outweighed the mitigating factors. There were four aggravating5 and
only two mitigating factors. The mitigating factor of age was not
strong. The Defendant was at the point where his age was not that
much of a consideration. Other non-statutory mitigating factors were
in fact established by the defense. They were considered by the jury
and the court. These mitigating factors were not particularly
significant. This Court finds that even if the non-statutory mitigating
factors were bolstered by teacher’s statements, comments of relatives,
and poems of the Defendant, the result would be no different.
7. The Court concludes that the Knight/Strickland tests are not
met. The trial defense was not deficient, nor did it prejudice the
Defendant. The Defendant received a fair trial and a fair sentence
hearing.
The Supreme Court of Florida summarily affirmed, stating:
In his next point, Herring contends that an evidentiary hearing was
necessary to decide his ineffective-assistance-of-counsel claims. The
trial judge, in an extensive order, fully explained why each of the
ineffective-assistance-of-counsel claims did not meet the test set forth
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984) and Knight v. State, 394 So. 2d 997 (Fla. 1981). We
agree with the trial judge’s findings and commend him for his
detailed explanation.
5
As explained in Section I.B., one of these aggravating factors was stricken by the
Florida Supreme Court subsequent to the state trial court’s 3.850 decision.
18
Herring v. State, 501 So. 2d 1279, 1280 (Fla. 1986).
As set out in Section II.A. above, our review of state court decisions is very
deferential under § 2254, as amended by AEDPA. “AEDPA modified a 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.” Parker v. Sec’y for the Dep’t of Corrs., 331 F.3d
764, 768 (11th Cir.) (citation and internal quotation marks omitted), reh’g and
reh’g en banc denied, 82 Fed. Appx. 224 (11th Cir. 2003), cert. denied, 540 U.S.
1222, 124 S. Ct. 1513 (2004). We may grant a § 2254 petition as to a claim
adjudicated on the merits in state court only if adjudication of the claim
“(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law . . . ; 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). To be
entitled to deferential review under 28 U.S.C. § 2254, it is not necessary for the
state court to explain its decision. Even a summary, unexplicated rejection of a
federal claim qualifies as an adjudication entitled to deference under § 2254(d).
Parker, 331 F.3d at 775–76; Wright v. Sec’y for the Dep’t of Corrs., 278 F.3d
1245, 1253–55 (11th Cir.), reh’g and reh’g en banc denied, 34 Fed. Appx. 393
19
(11th Cir. 2002), cert. denied, 538 U.S. 906, 123 S. Ct. 1511 (2003). Moreover,
factual findings made by the state courts are presumed to be correct; a petitioner
can rebut this presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
The state trial court judge who issued a ruling on Herring’s
ineffective-assistance-of-counsel claim is the same judge who presided at trial.
The state trial judge was, therefore, intimately aware of everything that happened
at, and was involved in, the trial. In an attempt to obtain similar familiarity, we
have reviewed the entire record. It is evident from our review that the state court
rulings were eminently reasonable and were not contrary to clearly established
federal law.
We turn first to Herring’s contention that Quarles did not perform a
meaningful investigation into his mental condition. The state court6 concluded
Herring established neither deficient performance nor prejudice. The record
supports the state court conclusions.
Contrary to Herring’s contention, it is evident from the record that Quarles
did investigate Herring’s mental condition. Prior to trial, the defense had Herring
6
The Florida Supreme Court expressly stated it agreed with the trial judge’s findings.
We use the term “state court” in this discussion to refer to the state trial court and the Florida
Supreme Court.
20
evaluated by Dr. William Friedenberg, a clinical psychologist. The State
subsequently took Dr. Friedenberg’s deposition. In that deposition,
Dr. Friedenberg said he had been appointed to evaluate Herring and had
considered Herring’s “ability to testify about the kind of charges against him and
the events as they were reported by others.” Dr. Friedenberg testified that, to aid
in his evaluation of Herring, he had a 1974 St. Luke’s Hospital evaluation of
Herring; a report evaluating Herring’s oral reading and written language; a copy of
the autopsy request form from this case; and a supplemental report by the Daytona
Beach Police Department. Dr. Friedenberg also had a closed 1980–81 HRC
(Human Resources Center) file, which included a psychological evaluation dated
October 30, 1980, reports from psychiatrists, a report on an EEG, and some notes.
In conducting his evaluation, Dr. Friedenberg saw Herring for about three
hours. He stated Herring was anxious, but not abnormally so considering the
circumstances. Also, Herring became increasingly animated in saying he was
innocent and had been set up. Herring denied being at the murder scene.
Dr. Friedenberg administered some tests, but he did not perform an IQ test
on Herring; rather, he relied on a 1974 test showing an IQ of 81 and a 1980 test
showing an IQ of 82. Dr. Friedenberg said the consistency of the two results led
him to believe it was not necessary to readminister an IQ test.
21
Dr. Friedenberg stated Herring was of dull normal intelligence, but that
“would be significantly above what would be considered borderline, retarded or
retarded range and includes approximately fifteen percent of the population.” He
further stated: “One has to understand that Mr. Herring has a rather limited formal
education and there are many studies to show that that can affect I.Q. tests such as
this by lowering the actual score below what the potential would be.”
Dr. Friedenberg opined that Herring’s IQ should not affect his ability to be a law
abiding citizen and would only minimally interfere with Herring’s ability to deal
with the legal process.
Dr. Friedenberg’s mental health conclusions from his evaluation of Herring
were as follows:
[H]e appeared to be most likely a person who would be
described as an antisocial personality type who may have some
additional problems but in the whole seems to be responding with
some anxiety to the situation of having been caught and charged with
a crime which holds a rather strong penalty. I did not find him unable
to stand trial nor did I have any evidence to show that he was legally
not sane at the time of the commission of the alleged crime.
Regarding the diagnosis of Herring as having an antisocial personality,
Dr. Friedenberg stated antisocial personality is a recognized form of mental illness
that, at the time of the deposition, was not very amenable to treatment.
Dr. Friedenberg described the antisocial personality as guiltless, highly aggressive,
22
impulsive, highly sensitive to social criticism, untruthful when it serves the
individual’s purposes, unable to profit from experience, and having its own sense
of morality (coinciding very little with society’s sense of morality).
Dr. Friedenberg further stated Herring did “not suffer from psychosis or anything
that could be considered a gross disturbance of emotional functioning.” As for
Herring’s remorse, Dr. Friedenberg stated: “I think his remorse as far as the one
crime that he did admit to was primarily based on the fact that he was caught.”
The defense decided not to use Dr. Friedenberg at trial. The State, however,
understandably tried to present testimony from Dr. Friedenberg. The State’s
proffer was that Dr. Friedenberg had made the following determination: “[T]hat
the Defendant’s personality and character is antisocial. And that he has sufficient
and normal intelligence to understand and appreciate his criminal conduct and so
forth, in this particular case.” The defense objected to the admission of testimony
from Dr. Friedenberg, contending, inter alia, that the State’s use of his testimony
was barred under the rule pursuant to which Dr. Friedenberg’s evaluation had been
obtained by the defense. The trial judge concluded Dr. Friedenberg could not be
used as a prosecution witness.
23
The fact and nature of Dr. Friedenberg’s evaluation support the following
conclusions. First, Herring’s allegation that counsel did not perform an
investigation is unsupported. In his brief, Herring contends:
Quarles did not follow up on [the St. Luke’s] reports [in his
possession] to understand what they meant and did not obtain the
testimony of a mental health expert, who could have competently
explained the meaning of an I.Q. test to the jury and could have
testified about Herring’s mental retardation and brain damage.
This contention simply is not supported by the record. Quarles did consult an
expert. Second, the record supports an inference that the case Quarles put on was
the product of a tactical decision made after investigation. Quarles knew the
substance of Dr. Friedenberg’s conclusions and decided to keep the evaluation and
Dr. Friedenberg’s opinions out of evidence—in fact, he fought to keep
Dr. Friedenberg from testifying before the jury. Finally, there was no prejudice to
Herring due to Quarles’ conduct.
We consider next Herring’s claim that his counsel should have investigated
his background and presented additional character witnesses. In rejecting this
claim, the state trial court stated much of the testimony proffered by Herring was
dated and of doubtful value. The state trial court concluded that, given Herring’s
history of drug involvement and other robberies, as well as counsel’s dilemma of
putting on mitigating evidence without giving the State an opportunity to further
24
damage the defendant, Quarles’ performance was not deficient in presenting the
testimony of Herring’s mother only. The state trial court further concluded
Herring failed to establish prejudice. The state court conclusions have abundant
support in the record.
The information as to which at least two of the proffered character witnesses
could have testified would have been somewhat dated. Moreover, although one
conviction for robbery was admitted into evidence, there were a number of
convenience store robberies as to which evidence was not admitted. The other
convenience store robberies were discussed by Herring during his taped
statements to police. The trial record reflects, however, that other crimes evidence
was redacted from the taped statements played for the jury during the guilt phase.
In fact, the state trial court judge excluded evidence of other robberies (aside from
the one conviction used as a statutory aggravating factor) from the penalty phase
due to defense counsel’s agreement not to present mitigating testimony as to
Herring’s lack of a significant history of prior criminal activity.
As for Herring’s drug involvement, the record shows Herring himself made
statements to a correctional officer regarding his drug activities in New York.
25
Herring admitted to the correctional officer he had been selling drugs and had
been cutting the drugs to make more money.7
We turn next to Herring’s claim that Quarles was ineffective in failing to
introduce reports, including reports from St. Luke’s Hospital, regarding Herring’s
mental condition that were in his possession at the time of trial. The state trial
court concluded the reports were not uniformly favorable to Herring, the defense
did establish Herring’s learning and psychological problems through his mother,
and Quarles’ failure to introduce the reports into evidence was not a professional
deficiency. The state trial court further held Herring failed to establish prejudice.
The state court rulings are supported by the record. The reports were dated and
were not uniformly favorable to Herring’s case. The state court resolution of
Herring’s claim is further supported by the fact and nature of Dr. Friedenberg’s
evaluation of Herring.
Upon review of the record before the state courts, the state court resolution
of Herring’s claims was not contrary to, and did not involve an unreasonable
application of, clearly established federal law, and did not result in a decision that
was based on an unreasonable determination of the facts.
7
The correctional officer was proffered by the State as a witness to impeach Meyers, but
the State withdrew him when it concluded his testimony would not “impeach[] or comment[] on
the credibility of a prior witness.”
26
b. District Court Decision
The district court denied Herring’s ineffective-assistance-of-counsel claim,
concluding the state court did not reach a decision that was “contrary to, or [that]
involved an unreasonable application of, clearly established Federal law . . . [and
was not] based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” The district court further
stated:
Petitioner argues that counsel failed to present any evidence in
mitigation and that he should have obtained documentary evidence
regarding Petitioner’s mental disability and serious emotional
problems. Petitioner identifies a report detailing Petitioner’s
psychological and emotional problems while at the Wiltwyck School
and character witnesses who would have testified on his behalf.
As to issue one, the trial court denied it based on the following:
1) at least one of the reports resulted from an interview done when
Petitioner was 13 years old; 2) Petitioner’s counsel was able to
establish learning disabilities and psychological problems through the
testimony of Petitioner’s mother; 3) one of the reports established that
Petitioner’s mother did not keep Petitioner’s appointments with the
counselor; and 4) the reports reflect that Petitioner was of dull normal
intelligence.
The record supports the trial court’s findings, and the Court
agrees that Petitioner has not shown that his counsel’s performance
was deficient or that he sustained prejudice. The Court notes that one
of the reports resulted from an evaluation performed when Petitioner
was 12 years old and that another report described Petitioner as
having “intellectual functioning in the dull normal range.” The latter
report was based on an evaluation done on January 21, 1974, and
27
found Petitioner to have full scale IQ of 81. Moreover, Petitioner’s
mother testified at sentencing that Petitioner was a “hyperactive child
diagnosed by the doctor, with very low IQ of 80, learning disability.”
She also testified that Petitioner was treated for psychological
problems as a child.
....
Petitioner argues that counsel failed to introduce two
psychological reports that diagnosed him as suffering from
retardation and other organic neurological disorders. Petitioner
identifies two reports from St. Luke’s Hospital in New York City,
which concern evaluations performed on Petitioner when he was 12
and 13 years old.
The trial court addressed this issue and found it to be without
merit. The trial court noted that counsel did present testimony from
Petitioner’s mother, which revealed that his home-life was poor; that
his parents divorced when he was four years old; that he had
psychological problems; that he was hyperactive with a low IQ and a
learning disability; and that she loved him. The trial court found that
the reports would have been cumulative to the mother’s testimony.
The record supports the trial court’s findings, and the Court
agrees that Petitioner has not shown that his counsel’s performance
was deficient or that he sustained prejudice. The Court notes that
Petitioner’s mother specifically testified at the penalty phase hearing
as to Petitioner’s low IQ and learning disabilities and as to
Petitioner’s poor home-life. The report would have been cumulative
to her testimony. The Court also notes that one of the reports actually
suggests that Petitioner had normal intellectual abilities: “There is
also a discrepancy between Ted’s intellectual abilities, albeit at a
Dull-Normal range, and his actual achievement.”
(citations omitted).
28
Although the district court did not hold a hearing on Herring’s
ineffective-assistance-of-counsel claim, such treatment of a claim is appropriate
where, as here, “a hearing would not assist in the resolution of [petitioner’s]
claim[s].” Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir.) (citation omitted),
reh’g and reh’g en banc denied, 48 Fed. Appx. 329 (11th Cir. 2002), cert. denied,
537 U.S. 1204, 123 S. Ct. 1278, reh’g denied, 538 U.S. 995, 123 S. Ct. 1825
(2003).
Applying the deferential § 2254 standard of review, the district court
correctly affirmed the state court decisions. As set out in Part II.C.1.a. above, the
state court decisions were supported by the record before those courts. We further
note the district court had before it not only the record that was before the state
courts in resolving these issues, but also the record of additional post-conviction
proceedings in this case. Nothing in the record of these additional post-conviction
proceedings undermines the state court decisions.
Most notably, the post-conviction record includes a December 1991
deposition of Quarles that was taken by Herring’s current counsel during
proceedings on Herring’s claim that Pearl had acted at trial under an impermissible
conflict of interest. In his deposition, Quarles stated his theory originally was to
get Herring to plead guilty. He said the trial judge had indicated that if Herring
29
pled guilty, he would receive a life sentence. (In his own December 1992
deposition, Pearl testified that he had a similar recollection.) When Herring
refused to plead guilty, Quarles’ tactic was to try to convince the jury that Herring
was young and ignorant.
In terms of investigation, Quarles stated that he talked to Herring about
“possible witnesses, events in his life, relatives.” Quarles also testified that he had
Herring examined and “a report was produced.” He testified that he did not know
how to get the childhood reports regarding Herring’s mental condition admitted:
“I made some attempt to talk to a doctor or two that had examined him and either I
couldn’t locate them or they had other information or they had other testimony that
was detrimental to call as a witness.” When questioned specifically about a report
from St. Luke’s Hospital, Quarles further stated:
I can’t specifically say what I did or if I was able to locate the doctor.
I do know that I attempted to locate some doctors, could not—was
unsuccessful as to one or two or one. It seems to me there was some
doctor somewhere, maybe here, that was definitely going to throw in
Mr. Herring despite this and this and this, Mr. Herring [k]new exactly
what he was doing and Mr. Herring intended to kill Mr. Heolzelg
[sic].
With respect to investigating and presenting character witnesses, Quarles
stated that, through his discussions with Herring and Meyers, he concluded there
30
was no one who could attend the trial who might be a good character witness on
Herring’s behalf.
Again, the state court rulings were sustainable on the record that was before
the state courts in ruling on Herring’s claims. Moreover, the additional
post-conviction record before the district court does nothing to undermine those
rulings. We affirm the district court’s denial of Herring’s claims.
2. Quarles’ failure to contest the heightened premeditation aggravating
circumstance
Herring next contends Quarles’ performance was deficient in that he did not
object to the applicability of the heightened premeditation aggravating
circumstance. Counsel’s performance cannot be deemed to have been deficient
because, at the time of Appellant’s sentencing, the aggravator was interpreted to
cover Appellant’s case. In fact, the Florida Supreme Court initially affirmed the
application of the aggravator to Appellant’s case. Moreover, as to the prejudice
prong, the Florida Supreme Court subsequently eliminated the aggravator from
Herring’s case, but nevertheless affirmed the death sentence.
3. Quarles’ failure to object to the avoidance of arrest jury instruction
Herring contends Quarles was ineffective in that he did not object to the
avoidance of arrest instruction. Herring asserts the trial court’s instruction was
31
erroneous in two respects: (1) the instruction did not advise the jury that it could
find the aggravator only if it concluded beyond a reasonable doubt that eliminating
a witness was the dominant or sole motive of the killing; and (2) the instruction
did not advise the jury that, under Florida law, the uncorroborated testimony of a
single witness may be insufficient to support a finding of an aggravator.
The State contends, as the district court concluded, that Herring’s claim is
procedurally barred because he never raised it in state court. Herring did not
address the district court’s finding of procedural bar in his initial brief. In his
reply brief, Herring contends he raised the claim in his first 3.850 Motion at ¶ 94.
Again, “[a]rguments raised for the first time in a reply brief are not properly before
a reviewing court.” United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994)
(citation omitted); see also United States v. Whitesell, 314 F.3d 1251, 1256 (11th
Cir. 2002), cert. denied, 539 U.S. 951, 123 S. Ct. 2628 (2003); United States v.
Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999); United States v. Martinez, 83 F.3d
371, 377 n.6 (11th Cir. 1996). Although Herring’s failure to present argument in
his initial brief is determinative, we nevertheless briefly discuss the procedural bar
argument Herring raises in his reply brief.
In ¶ 94 of his first 3.850 motion, Herring stated:
32
As discussed supra at paragraphs 23 through 48, the cases construing
the heightened premeditation and avoidance of arrest aggravating
circumstances demonstrate quite clearly that neither of these
aggravating circumstances was applicable to this case. Despite the
substantial body of case law favorable to petitioner’s position, his
counsel never contested the applicability of the heightened
premeditation aggravating circumstance and made at most a feeble
attempt to rebut the applicability of the avoidance of arrest
aggravating circumstance. Counsel’s failure seriously prejudiced
petitioner’s sentencing hearing, thereby undermining the fairness of
the proceeding.
This statement does not amount to an argument that Quarles was ineffective for
not objecting to the avoidance of arrest instruction.
In summary, we reject Herring’s claim. The district court found Herring’s
claim to be procedurally barred. Herring did not address procedural bar in his
initial brief. Even if he had properly presented his procedural bar argument, we
would have rejected it.
4. Quarles’ failure to object to the cross-examination of Meyers
Herring next argues that, through its cross-examination of his mother,
Dorothy Meyers, the State improperly introduced evidence of a non-statutory
aggravating circumstance. He states: “Although it is state law that precludes the
admission of a non-statutory aggravating circumstance . . . trial counsel’s failure to
prevent the admission of this evidence constitutes ineffective assistance of
counsel, which is a constitutional issue.”
33
During the penalty phase of Herring’s trial, Quarles presented testimony
from Meyers that Herring at some point had moved to Florida:
Q. When did Ted leave your home?
A. Do you mean for Florida or coming down here or . . .
Q. For Florida?
A. Or for the different schools I put him in?
Q. Florida.
A. About a year and a half or almost close to two years.
On cross-examination, the State conducted the following questioning of Meyers:
Q. Mrs. Myers, have you ever had an occasion to talk with a
Mr. James B. Brock?
A. I might have. I don’t recall the name.
Q. He’s a Correctional Probation officer in the State of
Florida. Does that help?
A. I believe so.
Q. Did you tell Mr. Brock that the reason you sent your son to
Florida, was because your son had become involved in some drug
dealings in New York City, and it was necessary for him to get away
from New York City quickly, that the word was out that people
involved, who were supplying your son with drugs, were out to get
him?
A. I didn’t say [Pause] of those words, no. I said that he went
to the police and testified about some drugs. I don’t know what he
might have put down there.
Q. You never told anybody the reason he left New York was
because he was involved—
A. Well, his life was in danger because, if he would testify
against the drug dealers, his life was in danger.
Q. Did he ever testify?
A. No. Because I sent him here.
Q. But, it is your testimony that you indicated to the
correctional officer that this involved testimony?
34
A. Well, let’s put it this way. I didn’t know if—It never got to
trial. He went to the police and informed the police about it.
Q. Did you tell that to the correctional officer?
A. I might have.
Q. Is it possible that you didn’t?
A. I really don’t remember.
Q. Do you recall telling the correctional officer, Mr. Brock,
that your son got involved over his head with drug suppliers and they
were blaming him for the missing drugs?
A. I don’t remember.
Herring contends this cross-examination was improper and Quarles was
ineffective in that he failed to object to it.
In rejecting Herring’s claim, the state court concluded:
Yet the door was opened to this cross because on direct the mother
testified she sent him to Florida about two years ago. The State had
the right and duty to ask why he was sent to Florida. A defense
objection to this line of questioning would have been overruled.
The Florida Supreme Court agreed with the trial court’s findings and affirmed its
decision. The district court agreed, holding Quarles’ representation was not
deficient and Herring had not shown prejudice.
The Florida Supreme Court already has told us how the issues would have
been resolved under Florida state law had Quarles done what Herring argues he
should have done—objected to the State’s cross-examination of Meyers. It is a
“fundamental principle that state courts are the final arbiters of state law, and
federal habeas courts should not second-guess them on such matters.” Agan v.
35
Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997) (citations omitted). Accordingly,
with regard to this claim, we hold Herring cannot establish either deficient
performance by Quarles or prejudice.8 We therefore reject Herring’s argument
that Quarles was ineffective in failing to object to the State’s cross-examination of
Meyers.
D. Conflict of Interest
The final issue before the Court is Herring’s contention that, at the time of
trial, Howard Pearl had an impermissible conflict of interest due to the fact that he
held the status of special deputy sheriff so he could carry a firearm. In his brief,
Herring contends Pearl’s “need to carry a concealed weapon, dependent as it was
upon maintaining the favor of law enforcement in general and the Marion County
Sheriff in particular, who could revoke that privilege at will, is precisely the type
of personal interest that may create a conflict as contemplated by the Sixth
Amendment.” Herring argues that, as a result of this conflict, Pearl failed to
contest the credibility of the law enforcement officers, in fact bolstered their
credibility during closing argument, and chose an unreasonable trial strategy that
8
Although we will grant relief if application of a state law violates a specific federal
constitutional right or if a state trial judge’s erroneous admission of evidence makes a petitioner’s
trial “so fundamentally unfair that the conviction was obtained in violation of the due process
clause of the fourteenth amendment,” Thigpen v. Thigpen, 926 F.2d 1003, 1012 (11th Cir. 1991)
(citations omitted), neither circumstance is present in this case.
36
did not require him to challenge the officers. The state court held hearings on this
issue and denied Herring’s claim on the merits.
After conducting an evidentiary hearing, the state trial judge made the
following findings:
Howard Pearl applied to become a special deputy sheriff in
Marion County in 1970. He sought to obtain this status in order to
have the authority to carry a concealed firearm throughout the State of
Florida “for protection of self and family.” The sheriff of Marion
County in 1970, Doug Willis, apparently granted Mr. Pearl the status
of special deputy sheriff for the purposes of carrying a concealed
firearm. . . . Sheriff Moreland testified that he continued Mr. Pearl’s
status as a professional courtesy and that this was a common practice
at that time to continue the status of prominent members of the
community.
Although Mr. Pearl was required to maintain liability insurance
by the Marion County Sheriff’s Department through the Florida
Sheriff’s Self-Insurance Fund, he had no criminal law enforcement
authority or duties and was considered as an unpaid medium hazard
special deputy sheriff . . . .
Despite the fact that Mr. Pearl’s identification card issued by
the Marion County Sheriff’s Department stated that he was “a
regularly constituted deputy sheriff,” this Court finds that the
testimony of Mr. Pearl and Sheriff Moreland, at the evidentiary
hearing, clearly shows that Mr. Pearl’s status was an honorary
appointment. Specifically, Mr. Pearl (1) was never certified as a law
enforcement officer; (2) never received any compensation from or
executed any employee tax forms from the Marion County Sheriff’s
Department; (3) received no law enforcement training from the
Marion County Sheriff’s Department; (4) was never issued a uniform,
vehicle or any other equipment from the Marion County Sheriff’s
Department; (5) never made and never [was] given the authority to
37
make any arrests, stops or any other duties as a deputy sheriff of the
Marion County Sheriff’s Department; (6) never reported to any roll
calls at the Marion County Sheriff’s Department; (7) was never on a
duty roster for the Marion County Sheriff’s Department; (8) was
never copied on any internal memoranda from the Marion County
Sheriff’s Department, other than insurance renewal notices; (9) never
was asked to act in any way for the Marion County Sheriff’s
Department; and (10) never held himself out as a regularly constituted
deputy sheriff of the Marion County Sheriff’s Department. In fact,
Sheriff Moreland testified that Mr. Pearl’s status was “honorary” in
nature and was solely for the purposes of Mr. Pearl being able to
carry a concealed firearm.
In addition, James P. Gibson, the Public Defender for the
Seventh Judicial Circuit at present and at the time of Mr. Pearl’s
representation of the Defendant, testified that he knew of Mr. Pearl’s
status as a special deputy sheriff and that status was honorary and
only for the purpose of carrying a concealed firearm. . . . Further,
Mr. Gibson testified that Mr. Pearl never failed to act responsibly to
his clients due to this status and that he never questioned Mr. Pearl’s
integrity or ability in representing clients because of this special
deputy status.
Accordingly, this Court finds as a matter of fact that Mr. Pearl
never was and never has been a law enforcement officer of the
Marion County Sheriff’s Department. Essentially, Mr. Pearl was
granted a concealed firearms permit by the Marion County Sheriff’s
Department in the same manner that many other individuals received
during that time period. Contrary to defense counsels’ assertions, this
Court determines that Mr. Pearl had no actual or apparent authority to
act as “a regularly constituted deputy sheriff” for the Marion County
Sheriff’s Department because at no time did he indicate to anyone
that he possessed anything other than a “gun toter’s permit” as a
result of his special deputy status. . . .
Defense counsel interpreted Mr. Pearl’s alleged ineffective
cross-examinations and alleged bolstering of law enforcement officers as
38
the adverse effect of his conflict of interest. However, defense counsel
presented no evidence or testimony that demonstrated that Mr. Pearl was
actively representing conflicting interests. Therefore, this Court finds that
the Defendant and his counsel failed to demonstrate that any actual conflict
of interest existed between Mr. Pearl and the Defendant resulting from
Mr. Pearl’s special deputy status.
Herring v. State, 730 So. 2d 1264, 1267–68 (Fla. 1998) (alteration in original)
(quoting trial court’s decision). The Florida Supreme Court affirmed, concluding
Herring failed to establish that Pearl labored under an actual conflict of interest,
and further stating: “The record reveals no evidence suggesting that Herring’s
interests were impaired or compromised as a result of Pearl’s special deputy
status.” Id. at 1268. Applying the § 2254 standard of review, the district court
denied relief.
In Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980), the Supreme
Court considered a claim of ineffective assistance of counsel in a case where
defense counsel represented three codefendants without objection. Id. at 337–38,
100 S. Ct. at 1712. The Court held: “In order to establish a violation of the Sixth
Amendment, a defendant who raised no objection at trial must demonstrate that an
actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348,
100 S. Ct. at 1718. Subsequently, in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct.
1237 (2002), the Supreme Court rephrased the analysis somewhat and stated an
39
“actual conflict” is what a defendant must establish under Cuyler to prove a Sixth
Amendment violation. Id. at 171, 172 n.5, 122 S. Ct. at 1243, 1244 n.5. The
Court defined an actual conflict as (1) a conflict of interest that (2) adversely
affected his lawyer’s performance. Id.
Herring does not take issue with the individual state court findings so much
as he contends the state courts unreasonably applied Cuyler by “exclusively
relying on Pearl’s status as a law enforcement officer, and refusing to consider
evidence of Pearl’s [deficient] performance at trial.” Herring argues that under
Cuyler the issue of whether there was a conflict cannot be divorced from the issue
of counsel’s performance. The case on which Herring primarily relies is Neelley v.
Nagle, 138 F.3d 917 (11th Cir. 1998), abrogation on other grounds recognized by
Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001). The petitioner in Neelley
alleged her attorney suffered from an impermissible conflict of interest where the
attorney signed a book deal with petitioner three months after trial and the filing of
a motion for a new trial. We concluded that where counsel had competently
represented petitioner’s interests and no others at trial, it was “not unreasonable
for the Alabama Court of Criminal Appeals to find only the existence of a
potential conflict of interest, rather than an actual conflict.” Id. at 926. Contrary
to Herring’s apparent suggestion, we do not read Neelley as eliminating the need
40
for there to be a conflict of interest in the first place. If we were to focus only on
the quality of Pearl’s trial performance, our analysis would be bound by
Strickland, not Cuyler.
In Quince v. Crosby, 360 F.3d 1259 (11th Cir.), reh’g and reh’g en banc
denied, 104 Fed. Appx. 154 (11th Cir.), cert. denied, ___ U.S. ___, 125 S. Ct. 436
(2004), we considered a conflict-of-interest claim by another defendant who had
been represented by Pearl. In that case, the state trial court and the district court
made findings very similar to those made in the case before us. For example, the
state trial court made the following findings:
Mr. Pearl never was and never has been a law enforcement
officer with the Marion County Sheriff’s Department. Mr. Pearl was
in essence granted a concealed weapons permit from the Marion
County’s Sheriff’s Department as many other individuals were at that
time. Counter to the defense counsel’s assertions, the Court
determines from the facts presented that Mr. Pearl had no manifest or
actual authority to act as a fully constituted Deputy [S]heriff for the
Marion County Sheriff’s Department because at no time did he
indicate to anyone that he possessed anything other than a “gun
toter’s permit” as a result of his special deputy status.
Id. at 1264 (quoting state trial court findings). Moreover, the district court in
Quince found:
[T]he uncontroverted testimony was that Mr. Pearl obtained
and maintained his special deputy status solely in order to be able to
carry a firearm while traveling throughout the state. He had no law
enforcement duties, no arrest powers, and no uniform; he received no
41
law enforcement training, no compensation, and no internal
memoranda from the Sheriff’s Office. The title was merely honorary.
Once state law changed to permit Mr. Pearl to obtain a state license to
carry a concealed firearm, he resigned his special deputy position.
Id. (quoting district court findings). We concluded in Quince there was no
conflict. Id. at 1264. We reach the same conclusion here.
Given the presumption of correctness attached to the state court factual
findings, 28 U.S.C. § 2254(e), and our recent decision in Quince considering the
very same alleged conflict of interest raised in this case, we cannot say the Florida
Supreme Court unreasonably applied Cuyler v. Sullivan. On these bases, we
affirm the district court’s denial of the petition on this ground.
III. CONCLUSION
We hold Herring’s claim under Clemons v. Mississippi is without merit. We
further hold Herring’s claim that he received ineffective assistance of counsel at
sentencing to be without merit. Finally, we hold the state court did not
unreasonably apply Cuyler v. Sullivan to Herring’s claim that Pearl suffered from
an impermissible conflict of interest due to his status as a special deputy sheriff.
AFFIRMED.
42