Marquard v. Secretary for the Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 10, 2005
No. 05-10904
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00752-CV-J-99

JOHN C. MARQUARD,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(November 10, 2005)

Before EDMONDSON, Chief Judge, CARNES and HULL, Circuit Judges.

HULL, Circuit Judge:
 John C. Marquard appeals the district court’s denial of his 28 U.S.C. § 2254

petition challenging his death sentence. On appeal, Marquard argues primarily that

his trial counsel was ineffective in various ways during the penalty phase of his

trial. After review and oral argument, we affirm Marquard’s death sentence.

I. BACKGROUND

A. Murder of Stacey Willets

Marquard was convicted of first-degree murder and sentenced to death for

the 1991 murder of his girlfriend, Stacey Willets. After Willets’s remains were

discovered by hunters in the woods, Marquard and codefendant Michael Abshire

were arrested, and both confessed. The facts relating to the murder, as recited by

the Florida Supreme Court, are as follows:

John Marquard, Mike Abshire, and the victim, Stacey Willets,
decided to move from North Carolina to Florida in June 1991 using
Stacey’s car and sharing expenses. Prior to leaving, Marquard and
Abshire discussed killing Stacey for her car and money, and during a
stop in South Carolina Marquard told Abshire that he was going to kill
her because he was tired of arguing with her. In St. Augustine,
Marquard and Abshire formulated a plot to kill Stacey that night after
luring her into the woods.
Marquard and Abshire invited Stacey to attend a party, drove
her to a deserted area, and walked her into the woods. Marquard
grabbed her from behind, stabbed her, threw her to the ground, and sat
on her back. She was still breathing, so Marquard held her head under
the rainwater that had accumulated in a puddle until she stopped
breathing. When her body convulsed, he held her head underwater
again. Abshire then stabbed her and the two tried to decapitate her.
Marquard was arrested and confessed, saying he remembered walking

2
 into the woods with Stacey and standing over her body with a knife in
hand. Abshire testified at trial, giving a detailed account of the
murder.

Marquard v. State, 641 So.2d 54, 55-56 (Fla. 1994). Marquard was convicted of

first-degree murder and armed robbery.

B. Guilt Phase of Trial

At trial, Marquard contended that he was present for the murder of Stacey

Willets, but that codefendant Abshire, and not Marquard, actually initiated and

committed the murder.1 Abshire, on the other hand, testified that it was Marquard

who planned to kill and ultimately did kill Willets.

Abshire testified that Marquard first mentioned killing Willets in South

Carolina, at the first stop on their trip. Some luggage had fallen off the car, where

Marquard had tied it down, and Marquard and Willets fought over the incident.

Marquard then discussed with Abshire killing Willets, as follows:

[STATE ATTORNEY]: Where is the first place that you stopped?
[ABSHIRE]: We stopped at a . . . like a convenience store/gas station
in South Carolina when the sea bags that were on the trunk fell off.
[STATE ATTORNEY]: Okay. And was . . . anything unusual occur
there?
[ABSHIRE]: Other than the sea bags, yes, sir.
[STATE ATTORNEY]: Okay. Explain to the jury what that is. . . .

1
In his confession to the police, Marquard confessed that he and Abshire took Willets out
into the woods, but claimed no memory of the actual murder. He stated that after they got out in
the woods, the next thing he knew, Willets was face-down on the ground and Marquard was over
her with a knife in his hand, both of them bloodied.

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 [ABSHIRE]: Okay. I decided I was going to tie the stuff down on the
trunk, because John had tied it down before and it came loose. So him
and Stacy [sic] went inside the store to get drinks and use the
bathroom, you know. And Stacy [sic] came out and asked me if I
wanted something to drink, and she went back in to get me something
while John came out. And he . . . see, I was going to drive from there,
and he told me I should find a . . . like a farm road off the side off the
road and – like a hunting road or something – and go back in there
and, you know, find like a . . . a lonely spot like, and he was going to
kill Stacy [sic] and leave her there.
[STATE ATTORNEY]: Did he say why?
[ABSHIRE]: He was tired of arguing and everything. They – they
argued about the stuff being tied on the trunk and that he didn’t do a
good job and it had fallen off, and he didn’t like that and it was just –

Abshire testified that Marquard again discussed killing Willets after they

arrived in St. Augustine and Marquard and Willets had an argument about their

search for jobs. Willets stayed back in the motel room the three shared while

Marquard and Abshire went out to look for jobs and to look for a room in a

boarding house. When Marquard and Abshire spoke to the proprietor of the

boarding house, Marquard told her that it would just be Marquard and Abshire.

When Abshire questioned Marquard about Willets, Marquard indicated that he

intended to kill her, and the two then discussed how they would kill her:

[STATE ATTORNEY]: Okay. Well, did you ever question Mr.
Marquard about why he said it would just be you two?
[ABSHIRE]: When we got in the car later, I asked him, you know,
“What are we going to tell Miss Rosa about Stacy [sic]?”
And he said that – you know, he again brought up killing her.
[STATE ATTORNEY]: Okay. I need you to tell the jury exactly what
was said, to the best of your recollection.

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 [ABSHIRE]: Actually started planning on what to do and . . .
[STATE ATTORNEY]: By saying what?
[ABSHIRE]: By . . . said that we’re going to take her someplace, find
one of them little lonely roads just like before, and preferably . . . it’s
like usually when you cross over a river, there’s like an access road to
get underneath the bridge for fishermen, and he said there was a river
down State Road 16, I think, and we’re going to go there and take her
back there and tell her there’s a party going on back there.
[STATE ATTORNEY]: Did you come up with some ideas on how to
do this, as well?
[ABSHIRE]: Yes, sir. We did.
[STATE ATTORNEY]: Okay. What did you suggest?
[ABSHIRE]: Pretty much a basic consensus. I couldn’t really say
who thought of what particular thing. I mean, it’s like a . . . a general
scenario, you know, go back into some woods somewhere, I mean,
because there’s a guy we knew who did it exactly that way before –
or, I knew. I’m not sure if John knows him.
[STATE ATTORNEY]: So is it – is it a question-and-answer period –
[ABSHIRE]: Yes, sir.
[STATE ATTORNEY]: – or are you both coming up with ideas and –
[ABSHIRE]: Yes. I mean it isn’t really anything. I mean, I was
worried; but it still wasn’t really a serious thing, you know. I
mean . . .
[STATE ATTORNEY]: But you were both talking about killing her.
[ABSHIRE]: Yes, sir.

According to Abshire’s testimony, when he and Marquard arrived back at

the motel, they told Willets there was going to be a party that night and where it

was going to be, and the three began getting ready to go to the party. After

drinking a beer, Marquard, Abshire, and Willets drove out Highway 16, with

Marquard at the wheel. Abshire testified that he and Marquard looked for a bridge

with water because they had discussed leaving Willets’s remains where they could

5
be destroyed by alligators. When they found a bridge over water, they got out and

followed a trail through the woods with Willets walking between Marquard and

Abshire. They were unable to find a trail to the water they had hoped for, but it

was raining hard and the ground was very wet, with shin-deep water in some parts.

The three of them decided it was not worth walking through the thick, wet trails,

and decided to turn back. When Abshire came to a clearing in the woods, he heard

a muffled scream and turned around to see Marquard murder Willets:

[ABSHIRE]: . . . John had Stacy [sic] from behind and was like
backing up, keeping her feet off the ground, and she was struggling
and still screaming. And then I saw his hand come up, and I saw the
knife in his hand, and I saw him stab her at least once. I don’t know
how many other times. I saw him stab her one time. And then he
threw her on the ground in the middle of the clearing and sat on her
back, pretty much looked at her, and then he saw she was still alive.
And the water was, you know, pretty deep; so he . . . he held her head
under water till she quit breathing.
Then he handed me the knife, and I washed the blood off it.
And he sat there just looking at her. And then she jerked like, you
know, like – like a gasp or something, and I thought she was still
alive. And he put her head under water again and, you know, made
sure.
Then he told me to stab her. She was already dead, but he told
me to stab her. So I did. And I washed it off and gave the knife back
to him.

Abshire testified that he then, at Marquard’s direction, hacked at Willets’s

neck with a second knife. Marquard then tried to dig a hole to bury Willets’s body

but gave up because there were too many roots.

6
 Abshire testified that the motivation for killing Willets was for her car and

the remaining $150 she had at the time of the killing. After killing her, they went

through her pockets, took some money and a knife, and returned to the motel to

shower and wash their bloody clothes.

At the close of the trial, the jury unanimously found Marquard guilty of one

count of first-degree murder and one count of armed robbery with a deadly

weapon.2

C. Evidence at Penalty Phase

During Marquard’s penalty phase, the State presented North Carolina parole

officer Patricia Rawls, who testified that Marquard was on parole in North

Carolina at the time of the killing, a statutory aggravating factor under Florida law.

To establish mitigating factors, the defense counsel presented testimony

from Dr. Harry Krop, a licensed Florida psychologist with a wealth of experience

in the field of forensic psychology. Because Dr. Krop was the defense’s only

mitigation witness, we outline Dr. Krop’s testimony in detail. Dr. Krop had

previously evaluated 472 people who had been charged with first-degree murder

2
Abshire was tried separately, convicted, and sentenced to death. The Florida Supreme
Court subsequently reversed Abshire’s conviction and vacated his death sentence because,
during Abshire’s trial, the assistant state attorney indicated that he sought to exclude women
from the jury solely based on gender. Abshire v. State, 642 So. 2d 542, 544-45 (Fla. 1994). On
remand, Abshire was sentenced to life imprisonment. Marquard v. State, 850 So. 2d 417, 422
(Fla. 2002).

7
and had testified about forty-five times in the penalty phase of first-degree murder

trials, generally as a defense witness but on several occasions as a consultant to the

State.

Dr. Krop saw Marquard on two different occasions, at which times he

interviewed Marquard and also performed a battery of personality and

neuropsychology tests. Dr. Krop also reviewed Marquard’s psychiatric records,

psychiatric hospital records, social service records, and records from various

facilities in which Marquard resided as a juvenile. In addition, Dr. Krop reviewed

various depositions and police records relating to the offense of conviction and

interviewed Marquard’s mother and father by telephone. Dr. Krop testified that he

took all these materials into consideration in forming an opinion as to Marquard’s

mental status.

Based on his interviews with Marquard, his review of the relevant records

and depositions, and his interviews with family members, Dr. Krop testified in

detail about Marquard’s dysfunctional family; alcoholic and abusive mother;

abusive and distant father; and deprived and troubled childhood. Dr. Krop

reviewed how Marquard had an unstable family life and had been deprived of the

emotional care and support he should have received.

Dr. Krop started with Marquard’s dysfunctional family as early as when

8
Marquard was age six, and described his parents’ divorce and physical abuse of

Marquard:

I would have to say that I guess the most significant aspect of
his background is what we refer to as a dysfunctional family. Mr.
Marquard’s parents separated and/or divorced soon after when he was
rather young, somewhere around six or seven years old. At that time,
and depending on who I talked to in terms of the mother or father,
basically, it was a very bitter divorce, and as a result of the custody
battle, Mr. Marquard, the defendant, stayed in the custody of his
mother, whereas his two sisters went into the custody of his father.
According to his father, the reason that he obtained custody of the two
daughters was because the mother was physically abusive of the two
girls. According to the mother, the father was physically abusive of
her and also Mr. Marquard. Mr. Marquard basically reports that he
was physically abused by both of his parents.
The mother admits and the records document that the mother
has a history of alcohol abuse and has been treated as an inpatient for
her alcohol problems.

As a result of his parents’ separation, Marquard did not see his father for

many years and did not have a relationship with his father during childhood and

adolescence. Dr. Krop opined it was very important for Marquard to have a

relationship with his father during this period:

At the time that they were separated, according to the father, he
was not able to find John for close to four or five years, that he did not
have any contact with his son for four or five years.
The mother indicates – when I asked her why John did not see
his father for four or five years, she indicated that John essentially did
not want to see his father and because he was afraid of his father.
So both parents basically blame the other for why John was not
involved in any way with the father for a significant period of his life.
It was the period of his life in terms of his childhood, as well as the

9
 area going through puberty, a time when I think it’s very important for
a son to be with his father. But in any event, whatever the facts were,
he did not have a relationship with his father.

Dr. Krop also described how each of Marquard’s parents alienated Marquard from

the other parent:

After talking to the mother and father, it became clear that there
were a behavior pattern on both of their parts which we now refer to
as Parental Alienation Syndrome. It’s essentially when one parent,
usually the custodial parent, does things or says things to the child or
in front of the child which attempts, either consciously or
unconsciously, to alienate the child from the other parent. At that
time period, I don’t believe there was terminology for that; but it’s
been a fairly common phenomenon for several years.

Dr. Krop described how Marquard began drinking and using drugs at around eight

or nine years of age:

Basically, also just staying with the childhood, it was at the
time period when the parents were separated that John started getting
into additional trouble. He indicates that he actually started drinking
when he was eight years old – not regularly at that time; but he started
using drugs and alcohol somewhere around eight or nine years old.
And at some point, of course, that continued and became heavy and
more regular.

Dr. Krop also recounted how Marquard reported that he was sexually abused as a

child by a neighbor:

John also reports that when he was five or six years old that he
was sexually abused by an adult neighbor. He said that the abuse
consisted of frequent anal sex. He indicated that he never told his
mother or his father of this sexual abuse, but that he has informed
some mental-health counselors about the abuse.

10
 During that time period, also, as I indicated, he was not allowed
to see his father; but also because the sisters, his two older sisters,
went with the father, he had no contact with his sisters during that
time period, and according to his father, he . . . John was close to his
sisters prior to that separation.
That’s in a nutshell what occurred when John was a child in
terms of the parental situation.

In essence, Dr. Krop described Marquard as having abusive parents and having

been perhaps sexually abused, with the result that Marquard was drinking and

using drugs by age eight or nine.

Dr. Krop then testified about Marquard’s transient adolescence, in which he

was then separated from his family and placed in boys’ homes, foster care, and a

state hospital. At age eleven, Marquard was sent to a boys’ home, where he stayed

for eighteen months.3 Dr. Krop testified that “[a]ccording to the records at the

boys’ home, he was doing relatively well and was making some progress until

around the 15th- or 16th-month period, at which time he had a home . . . visit.”

After his home visit with his sisters, who reportedly were in a motorcycle gang,

Marquard “regressed and came back indicating talking about more violent type of

things, talking about weapons.” According to the boys’ home records, Marquard’s

3
Dr. Krop testified that Marquard was sent to a boys’ home
because he was having difficulty in terms of adjusting to living with his mother and
he was starting to get into trouble in terms of having behavior problems, and he was
sent to a boys’ home where he stayed for . . . he was 11 years old at the time, and he
stayed in this boys’ home for 18 months.

11
new interest in violence was because of his association with his sisters.

Dr. Krop further explained the negative impact Marquard’s mother

continued to have on Marquard. During Marquard’s time in the boys’ home, the

records suggest that the mother was telling Marquard during some of the home

visits that she would welcome Marquard back home with them. According to the

records, “[w]hen [Marquard] would come back, that would be his expectation,

when he came back to the boys’ home.” However, “when the boys’ home staff

asked the mother to come in and meet with them and talk about her taking home

[Marquard], she would not show up for the meetings.” There were regular

promises made, but then no follow-through on the part of Marquard’s mother.

After Marquard got back to the boys’ home following his visit with his

sisters, the boys’ home staff felt they could no longer treat him and that he needed

more intensive work. The boys’ home then referred Marquard to a “therapeutic

foster-care situation,” which is a family specifically trained in working with

emotionally disturbed children.

According to Dr. Krop, Marquard went into that system for about fifteen

months, when he was around age thirteen to fourteen. At the end of that time, the

father took Marquard home with him for about two years.

During that two-year period with his father, Marquard was about fifteen and

12
sixteen and was again having difficulty adjusting. He had difficulty in school and

exhibited behavior problems, at which time he was referred to a group home for

emotionally disturbed adolescents.

Marquard stayed in that group home for just a short period of time because

his problems were too serious. The group home referred Marquard to a state

hospital, where he stayed for sixteen months. Marquard was in a state hospital at

ages sixteen and seventeen.

After Marquard was released at about age seventeen from that state hospital,

it was determined that his family situation was too unstable, but because of his age,

he could not be placed back in a foster care situation. As a result, he lived on his

own thereafter. According to Dr. Krop, from that time on, Marquard “lived in a

transient type of existence in terms of moving around from one place to another,

having difficulty adjusting and having any type of stable environment.”

Dr. Krop also summarized the results of the most recent evaluation, which

was in North Carolina in 1989. Although all professionals recommended that

Marquard needed stability, consistency and support, the records reflect that he was

never able to get that environment from his family. Dr. Krop explained that the

professionals all “indicated that the rejection that [Marquard] had from significant

others has contributed to his difficulties.”

13
 Dr. Krop concluded that the records “support the [reports of] instability and

the dysfunctional family unit and suggest that many of [Marquard’s] current

problems adjusting to society and functioning adaptively in society . . . relate back

to the instability, his rejection and low self-esteem as a result of the dysfunctional

family.” As a result of his family instability and lack of supervision, Marquard

started drinking and using drugs at a very early age. Dr. Krop added that Marquard

has a history of alcohol and drug abuse.

Dr. Krop essentially opined that all this unfortunate history, taken together,

has resulted in Marquard being “a seriously disturbed individual with a number of

personality deficiencies and defects.”

After this discussion of Marquard’s background, Dr. Krop then discussed his

diagnosis. Dr. Krop discussed Marquard’s history of substance abuse and

concluded that Marquard did not suffer from significant intellectual or neurological

deficits:

Diagnostically, let me say that in my testing from him, although
he reports a number of head injuries, he also reports some blackouts
and hallucination. I would say that from what I can tell, almost all of
those were related to drug . . . drug ingestion as opposed to any type
of psychotic illness.
I did a neuropsychological evaluation to determine whether
there was any neurological or organic basis for some of these
problems, and the results were negative. I did not find any
neurological aspects . . . as a contributing factor.

14
Dr. Krop further noted that Marquard was a “fairly bright young man,” with an IQ

in the average range. Dr. Krop thus opined that “intellectually or

neuropsychologically, there do not seem to be any significant problems.”

Dr. Krop then testified that what Marquard presented, from a diagnostic

standpoint, was a “number of different personality problems.” Dr. Krop explained

that every individual develops certain personality traits, which are traceable to

genetic predisposition and also the individual’s environment and upbringing and

values in the home. He further explained that as a result of those factors, there are

individuals who develop maladaptive personality traits, causing them difficulty

functioning in society. This type of personality profile is called a “personality

disorder,” and the type of personality disorder “can vary depending on the

particular criteria that are available or that we know of with regard to that

individual in terms of the particular personality.”

Dr. Krop then opined that Marquard had traits typical of many different

personality disorders and that he presented a “personality disorder not otherwise

specified” and also was a substance abuser:

He has been diagnosed with different types of personality disorders in
the past. I would say that when I try and put a specific diagnosis on
him, because he fits into so many different categories and his
personality traits basically are across the different personality
diagnoses, I would have to diagnose him as what we call a personality
disorder not otherwise specified; in other words, the criteria are from

15
 across the different personality disorders as opposed to just fitting into
one particular personality disorder. I would also have to diagnose him
as a substance abuser, based on his history, both reported to me and in
the records.

Dr. Krop also elaborated on the traits Marquard exhibited from various

personality disorders, including borderline, explosive, and antisocial personality

traits. Dr. Krop first described the “borderline” personality traits exhibited by

Marquard, stating that individuals with borderline traits react to stress with

inappropriate acting out, tend to be manipulative, and engage in “self-injurious,

self-destructive type of behavior, oftentimes for attention-seeking purposes.”

Although borderline personalities can engage in certain “psychotic-like” behaviors,

Dr. Krop clarified that the only evidence he had of that type of behavior in

Marquard was, he believed, the result of hallucinogenic drugs.

Dr. Krop then described Marquard’s tendency to react to stress with

disproportionate anger and violence, typical of an “explosive” personality disorder:

He’s been diagnosed in the past as having explosive personality
disorder. This is an individual who reacts to stress in a manner that is
totally out of proportion to the given situation. It might be a situation
that might create some anger or frustration in all of us; but the person
who has poor impulse control and low frustration tolerance essentially
can explode and, of course, sometimes engage in violent behavior. So
we have those features from that type of personality disorder.

Dr. Krop further explained that Marquard presented certain features associated

with an “antisocial” personality disorder, which Dr. Krop described:

16
 We have certain features from an antisocial personality disorder, the
individual who does not particularly benefit from or a person who
does not particularly look at the consequences of his behavior, a
person who basically is fairly selfish and a person who engages in
behaviors that are against the values of society and the rules of
society.

Dr. Krop then noted that Marquard exaggerated and even lied – for example,

telling people that he was in the Navy Seals – to build up his self-esteem. Dr. Krop

opined that “these kind of grandiose, manipulative kinds of behavioral

characteristics are all reflective of a person with a personality disorder of the nature

that I described.”

After Dr. Krop’s testimony about Marquard’s background and his diagnoses,

the State presented Dr. Jack Merwin, an expert clinical psychologist. Dr. Merwin

testified that, based on his review of Marquard’s background and conduct,

Marquard suffered from antisocial personality disorder, a disorder common among

inmates whom he had evaluated. Dr. Merwin distinguished a personality disorder

such as Marquard’s from what is generally considered “mental illness” in that a

personality disorder is more personality-based and less focused on the mental

process.

D. Shackling During the Penalty Phase

On appeal, Marquard contends that he was shackled before the jury during

some portion of his trial’s penalty phase. Thus, we examine what the record shows

17
in that regard. We can locate no evidence in the record showing that Marquard

was shackled during the penalty phase. Additionally, Marquard’s trial counsel

never objected to any shackling.

In fact, this Court directed Marquard to file record citations where any

shackling occurred at trial. In reply, Marquard referenced only one place in the

record where Marquard apparently entered the courtroom while the jury was

present, and the record of the event reads as follows:

(In open court.)
THE COURT: All right. We’re waiting on Mr. Marquard. I think he
had to go to the restroom. He’ll be back in a second.
(Defendant present.)
THE COURT: All right. Now I would ask that the following people
please step down and report to Judge Wienberg in the courtroom at
the other end of the hall. . . .

The above events took place during jury-selection proceedings, not during the

penalty phase. In any event, the record contains no evidence that Marquard was

shackled before the jury.

E. Jury Instructions and Recommendation

After hearing the above evidence, the State trial court instructed the jury

regarding its duty to recommend a sentence for Marquard. The State trial court

instructed the jury to “render to the Court an advisory sentence based upon [its]

determination as to if sufficient aggravating circumstances exist to justify the

18
imposition of death penalty and whether sufficient mitigating circumstances exist

to outweigh any aggravating circumstances found to exist.”

The trial court also instructed the jury that the aggravating circumstances it

might consider were limited to any of the following four: (1) the capital felony was

committed by a person under a sentence of imprisonment or community control,

including parole; (2) the crime was committed while the defendant was engaged in

the commission of a robbery or was committed for financial gain; (3) the crime

was especially heinous, atrocious, or cruel; and (4) the crime was committed in a

cold, calculated, and premeditated manner without any pretense of moral or legal

justification.

With regard to the third potential aggravating factor, the “heinous, atrocious

or cruel” (“HAC”) factor, the trial court instructed as follows:

“Heinous” means “extremely wicked or shockingly evil.”
“Atrocious” means “outrageously wicked and evil.” “Cruel” means
“designed to inflict a high degree of pain with utter indifference to or
enjoyment of the suffering of others.”
The kind of crime intended to be included as heinous, atrocious
or cruel is one accompanied by additional acts that show that the
crime was consciousless or pitiless and was unnecessarily torturous to
the victim. If the victim in this case lost consciousness, any event
which occurred after unconsciousness began cannot be considered as
evidence of the especially – especially wicked, evil, atrocious or cruel
nature of the crime. Any event after the death of the victim cannot be
considered as evidence of the especially wicked, evil, atrocious or
cruel nature of the crime . . . .

19
 Prior to trial, the defense filed written objections to the standard jury

instructions. In those written objections, the defense objected to the HAC

instruction on the ground that it was unconstitutionally vague in that it failed to

genuinely limit the class of people eligible for the death penalty in violation of the

Fifth, Sixth, Eighth, and Fourteenth Amendments. At trial, the defense also

objected to the HAC instruction, again on the ground that it was unconstitutionally

vague and also on the ground that the evidence did not support the HAC

aggravating factor.4

Trial counsel also asked the trial court, if it overruled the objection and gave

the HAC instruction, to add onto the standard jury instruction the limitation that

4
On appeal in this Court, Marquard argues that his trial counsel was ineffective in failing
to challenge the HAC instruction on the ground that it was unconstitutionally vague, and that
therefore his appellate counsel could not raise the issue because trial counsel failed to object and
properly preserve the claim for appellate review. The State, on the other hand, argues that the
HAC-constitutional claim was procedurally defaulted because it was not raised on direct appeal.
Likewise, the Florida Supreme Court concluded that this HAC-constitutional issue was
procedurally barred because it was not raised on direct appeal. Marquard v. State, 850 So. 2d at
423 n.2.
In fact, Marquard’s trial counsel did object in writing and again at trial to the HAC
instruction on that basis. On direct appeal, his appellate counsel also argued the same issue
under “Point XII: Constitutionality of Section 921.141, Florida Statutes.” In that XII section of
appellant’s initial brief, Marquard’s appellate counsel noted that trial counsel had objected to the
standard instructions and that the objections had been overruled and stated that “Appellant again
asserts each objection to the Standard Instructions and argues that the trial court’s ruling denied
due process, a fair trial and a reliable sentencing recommendation” in violation of the Fifth,
Sixth, Eighteenth, and Fourteenth Amendments. In subsection (i), entitled “Heinous, Atrocious,
or Cruel,” Marquard’s appellate counsel again explicitly objected to the HAC instruction as
unconstitutionally vague and arbitrary. Thus, Marquard’s ineffective-assistance-of-counsel
claim lacks merit.

20
events after the victim lost consciousness or death could not be considered as

evidence of the wicked, evil, atrocious, or cruel nature of the crime, as follows:

If the victim in this case lost consciousness, any event which occurred
after unconsciousness began cannot be considered as evidence [of the]
especially wicked, evil, atrocious, or cruel nature of the crime. Any
event after the death of the victim cannot be considered as evidence of
the especially wicked, evil, atrocious, or cruel nature of the crime. If
you have reason to doubt whether some particular event occurred after
unconsciousness or death, you cannot consider that event in deciding
whether the State has established this aggravating circumstance.

(Quotation marks omitted.) Although overruling the objection to the

constitutionality of the HAC instruction, the trial court did give the first two

sentences of this requested limiting instruction but not the last sentence.

The trial court further explained (1) that if the jury did not find that

aggravating circumstances justified imposition of the death penalty, it should

recommend life imprisonment, and (2) that if it did find that one or more sufficient

aggravating circumstances existed, the jury then had the duty to determine whether

any mitigating circumstances existed that outweighed the aggravating circumstance

or circumstances. As to potential mitigating circumstances, the trial court

instructed: “Among the mitigating circumstances you may consider if established

by the evidence are any aspects of the defendant’s character or record and any

other circumstance of the offense.”5 The trial court further instructed that while

5
The trial court did not instruct the jury on any statutory mitigating factors.

21
aggravating circumstances must be established beyond a reasonable doubt,

mitigating circumstances need not be. Rather, it instructed the jury: “If you are

reasonably convinced that a mitigating circumstance exists, you may consider it as

established.”

After the jury retired to deliberate, the defense moved for a directed sentence

of life imprisonment, arguing that the State had failed to prove aggravating

circumstances sufficient to allow a reasonable jury to recommend a death sentence.

The trial court denied the motion.

After deliberating, the jury unanimously recommended a sentence of death.

The defense then moved for a new trial, asserting, inter alia, that Marquard’s

trial was tainted by cumulative error. The trial court denied the motion.

F. Sentencing

At sentencing, the State trial court recounted the details of Willets’s murder

and Marquard’s role in the murder, stating that there was overwhelming evidence

that the idea of killing Willets originated with Marquard. The trial court found that

these four aggravating factors were proved beyond reasonable doubt: (1) the crime

was committed while Marquard was on parole; (2) the crime was committed while

Marquard was engaged in the commission of a robbery or was committed for

financial gain; (3) the crime was especially heinous, atrocious, or cruel; and (4) the

22
crime was committed in a cold, calculated, and premeditated manner without any

pretense of moral or legal justification.

The trial court described the facts supporting each aggravating factor. With

regard to the HAC aggravator, the trial court restated the instruction defining the

factor and then explained why Marquard’s crime met this definition:

Chopping and stabbing and attempting to drown a defenseless,
unsuspecting 22-year-old woman with a Bowie knife, a dagger and
attempting to cut her head off with a Gurka head knife is extremely
wicked and shockingly evil. Such conduct is designed to inflict a high
degree with indifference to the suffering of Stacey Ann Willets.
Marquard cut her throat, stabbed her in the chest and attempted
to drown her and attempted to behead her. Mr. Marquard threw her to
the ground after cutting her throat and stabbing her. He held her face
under water until she stopped breathing. When she started breathing
again, he then held her face under water until she finally stopped
breathing.
Abshire stabbed her at Marquard’s instruction. Then Marquard
struck the back of her neck with his Gurka head knife. Abshire did
the same thing with his Bowie knife.
Stacey did not die instantly. She was breathing when Marquard
first tried to drown her. She started breathing after the first attempt.
Marquard again tried to drown her.
The attack was without provocation, and she vainly sought to
defend herself by struggling. Marquard had one hand over her mouth
and a knife in the other hand cutting her throat and stabbing her in the
chest.
Attempting to drown the victim is comparable to strangulation
and would involve foreknowledge of death, extreme anxiety or fear.

The trial court found that no statutory mitigating factors existed. With

regard to non-statutory mitigating factors, the trial court made mitigation findings

23
that Marquard had an unstable family life, difficult childhood, divorced parents,

alcoholic mother, no emotional support, and a personality disorder, but concluded

that any mitigating factors relating to that background and diagnosis were

overwhelmed by the aggravating factors in this case:

The Court finds that the defendant had an unstable family life
as a child and lacked the emotional support and care he should have
received.
Defendant reported to Doctor Krop that he had a number of
head injuries. Those are not documented, nor did Doctor Krop
describe how they occurred, when they occurred or the nature of the
injuries. Such testimony and those of blackouts as related to the jury
by defendant via Doctor Krop are highly suspect. The Court places
very little weight on such testimony.
Doctor Krop diagnosed defendant as [sic] a personality disorder
not otherwise specified. In other words, defendant has characteristics
which fit different personality diagnoses. Those traits are
inappropriately acting out in response to stress, being manipulative,
self-injurious, self-destructive, engaging in attention-getting behavior,
explosive personality, poor impulse control, low frustration tolerance,
failing to look at consequences of his behavior, basically selfish, a liar
and a person who engages in behaviors that are against the values of
society. Doctor Krop also – mentioned also that such a person can
engage in psychotic behavior, but there’s no evidence of such
behavior.
Doctor Jack Merwin, an equally qualified psychologist, opined
that the defendant suffers from an antisocial personality disorder,
which affects three percent of American males.
The Court finds that the defendant suffers from either a
personality disorder not otherwise specified or an antisocial
personality. There is not much difference between the two.
The Court further finds defendant did not have a stable home,
but had divorced parents and an alcoholic mother with whom he lived.
He had a difficult childhood. He may have been sexually abused on
one occasion. Defendant used various drugs and alcohol; however,

24
 there is no evidence that the use of those had anything whatsoever to
do with the commission of the murder.
In summary, the four aggravating circumstances overwhelm the
mitigating circumstances. The strongest mitigating circumstance is
defendant’s difficult childhood. He did not have a stable home. He
was in a group home, a therapeutic foster home and the state hospital.
He lived with an alcoholic mother.

The trial court then recounted the brutal, senseless murder of Willets and

concluded: “The murder of Stacey Ann Willets was a cold-blooded, premeditated

murder. The death penalty is the appropriate punishment.”

The trial court then sentenced Marquard to death.

G. Direct Appeal

On direct appeal to the Florida Supreme Court, Marquard, represented by

new counsel, argued that the trial court erred in these matters: (1) excusing for

cause a death-qualified venireperson; (2) refusing to suppress knives and

camouflage pants recovered from his room; (3) permitting the State to introduce

evidence that Marquard had discussed with Abshire how to kill people with knives

and how to make a “silent kill”; (4) denying the defense’s request for judgment of

acquittal on the armed robbery count; (5) refusing to allow defense counsel to

argue to the jury concerning the consequences of life imprisonment; (6) permitting

cross-examination into Marquard’s criminal history during the penalty phase; (7)

instructing on and finding the aggravating circumstance of commission while

25
under a sentence of imprisonment; (8) giving the HAC instruction; (9) finding that

the murder was for pecuniary gain; and (10) finding that the murder was cold,

calculated, and premeditated. See Marquard v. State, 641 So. 2d at 56 n.3.

Marquard also argued that: (11) cumulative errors required reversal; and (12)

Florida’s death-penalty scheme, including the standard jury instructions regarding

aggravating factors, was unconstitutional. See id. Marquard did not raise any

shackling issue on direct appeal.

The Florida Supreme Court affirmed Marquard’s convictions and sentences.

Marquard then filed a motion for rehearing, which was denied. See id. at 58. The

Florida Supreme Court listed the twelve issues raised by Marquard on direct

appeal, id. at 56 n.3, but discussed only six of those issues in some detail. As to

the remaining six, the Florida Supreme Court summarily affirmed the trial court.

Id. at 58 n.4.

Among those claims summarily affirmed were Marquard’s claims that the

trial court erred in instructing on and finding that the murder was especially

heinous, atrocious, or cruel and that the Florida death-penalty scheme, including

the HAC aggravator, was unconstitutional. The Florida Supreme Court simply

stated “no error” with regard to the giving of the HAC instruction, and “no merit”

with regard to the constitutionality of the HAC instruction given. Id.

26
 Marquard then filed a petition for a writ of certiorari in the United States

Supreme Court, seeking review on the following basis: “THE TRIAL COURT’S

RESTRICTION OF DEFENSE COUNSEL’S CLOSING ARGUMENT

CONCERNING DEFENDANT’S FUTURE DANGEROUSNESS VIOLATED

THE DUE PROCESS CLAUSE AND REQUIRES A NEW TRIAL AS TO

PENALTY IN LIGHT OF THIS COURT’S DECISION IN Simmons v. South

Carolina, 512 U.S. __, 129 L.Ed.2d 133, 114 S. Ct. __ (1994).” In his petition,

Marquard argued that the trial court erred in refusing to allow defense counsel to

inform the jury that the court could sentence Marquard to consecutive life

sentences for the armed robbery and the murder, which would likely ensure that

Marquard would spend the rest of his life in prison. The Supreme Court denied the

petition. Marquard v. Florida, 513 U.S. 1132, 115 S. Ct. 946 (1995).

H. Post-conviction 3.850 Motion

Marquard then filed in the Florida circuit court a motion for post-conviction

relief pursuant to Florida Rule of Criminal Procedure 3.850, and subsequently

amended that motion. In the amended 3.850 motion, Marquard asserted the

following claims: (1) that his trial counsel at the guilt phase of his trial was

ineffective; (2) that his trial counsel at the penalty phase was ineffective in failing

to investigate and present sufficient mitigating evidence; (3) that his trial counsel

27
was ineffective at the penalty phase in failing to object to and/or preserve various

erroneous rulings by the trial court and various statements by the court and the

prosecutor; (4) that the Florida Bar Rules unconstitutionally prohibited counsel

from interviewing jurors to determine if they followed the statutory sentencing

guidelines; (5) that the jury instructions as to aggravating factors, including the

HAC instruction, were unconstitutionally vague, overbroad, and inaccurate, and

that trial counsel was ineffective in not objecting to, or preserving an objection to,

the jury instruction as to the “cold, calculated, and premeditated” aggravating

factor on that basis;6 (6) that execution by electrocution is cruel and unusual and

violates the United States and Florida Constitutions; and (7) that Marquard was

unable to prepare an adequate 3.850 motion until he received certain public records

and was accorded time to review them and conduct a follow-up investigation.

While Marquard objected to the constitutionality of the HAC instruction, his

3.850 motion did not argue that his trial counsel failed to raise the HAC-

constitutionality issue or was ineffective in failing to raise or preserve it. In fact,

the record shows Marquard’s trial counsel did object to the HAC instruction as

unconstitutional.

Additionally, in his amended 3.850 motion, Marquard for the first time

6
Marquard also alleged ineffective assistance of trial counsel as to other jury instructions
on other bases.

28
raised a shackling claim (claim eight). Marquard’s 3.850 motion claimed that his

constitutional rights were violated when he was handcuffed in front of the jury

“during his penalty phase,” and that his trial counsel was ineffective in failing to

object to that shackling. Thus, Marquard’s 3.850 motion raised his shackling claim

both as a substantive constitutional claim and as an ineffective-assistance-of-

counsel claim. As to this shackling claim, Marquard’s amended 3.850 motion

states: “After Mr. Marquard was found guilty of Ms. Willets’ murder, he was

placed in handcuffs during the penalty phase. The handcuffs were in full view of

the jury.” (Emphasis added.) The 3.850 motion contained no citations to the

record that would show the shackling occurred, and Marquard made no proffer nor

offered any affidavit relating to the shackling claim.

The 3.850 court determined that Marquard’s claims of ineffective assistance

of counsel in the guilt phase and in the penalty phase (set forth in claims one and

two, respectively) were facially sufficient and that a hearing should be held on

those claims. The 3.850 court denied claims three, four, and five as procedurally

barred. The 3.850 court also denied Marquard’s shackling claim (claim eight) as

procedurally barred.7 The 3.850 court denied the remaining claims (six and seven)

on the merits, finding that the Florida Supreme Court had already rejected a

7
The motion sought an evidentiary hearing as to all the claims asserted in the 3.850
motion, but the court did not grant the evidentiary hearing as to the shackling claim.

29
constitutional challenge to electrocution (claim six) and that the public records in

claim seven had already been disclosed.

Marquard then again amended his 3.850 motion to assert that his death

sentence should be vacated based on newly discovered evidence (1) that co-

defendant Abshire’s sentence had been reduced on remand to life imprisonment,

and thus Marquard’s death sentence was not proportional, and (2) that Abshire had

admitted to Hobart Harrison, an inmate, that he had stabbed Stacey Willets and cut

her neck while she was still alive.

I. Hearing on 3.850 Motion

At the evidentiary hearing before the 3.850 court in November 1999,

Marquard sought to show, inter alia, that his trial counsel was ineffective in the

guilt phase in numerous ways.8 Marquard also sought to establish that his trial

8
Marquard claimed that his trial counsel was ineffective in: (1) failing to question
prospective jurors about the potential emotional impact of the crime scene photos and the
skeletal remains of the victim, which were presented to them; (2) failing to litigate the exclusion
of the only prospective black juror; (3) failing to impeach co-defendant Abshire concerning
statements he gave the police about Marquard’s intoxication at the time of the murder and about
Marquard’s role in the crime, which allegedly were inconsistent with Abshire’s trial testimony;
(4) failing to call as a witness Hobart Harrison, a prison inmate with whom Abshire allegedly
discussed the murder; (5) failing to obtain and present evidence that Marquard had a history of
head injuries, blackout periods, and memory loss; (6) failing to present evidence that Marquard
was intoxicated at the time of the murder; (7) failing to object to the introduction of victim
photographs and the crime scene video and failing to hire an expert witness to counter the
testimony of Dr. William Maples, a forensic anthropologist who testified for the State about the
victim’s skeletal remains; and (8) failing to challenge the voluntariness of Marquard’s statement
to the police and consent to a search of his room based on his intoxication or mental condition at
the time of the statement.

30
counsel was inadequate in the penalty phase in failing to present mitigation

testimony beyond Dr. Krop’s testimony. Specifically, Marquard argued that his

counsel should have presented more detailed testimony about his difficult and

troubled childhood and the sexual and physical abuse he suffered and its effect on

his mental state. Marquard also asserted that codefendant Abshire’s changed story

about the murder constituted new evidence that would have changed the outcome

of the trial, and trial counsel was ineffective for failing to discover and present it.9

We now review Abshire’s changed story during the 3.850 hearing and then

proceed to the testimony of the witnesses presented on the mitigation issue.

1. Abshire’s changed story

During the 3.850 evidentiary hearing in November 1999, Michael Abshire

testified about his history with Marquard and the events the day of the murder.

Abshire testified that he and Marquard habitutally drank beer, consumed

ephedrine, and smoked marijuana, and they also occasionally took LSD. Abshire

indicated that he and Marquard both blacked out and had memory loss at times due

to their alcohol and drug use. In contrast to his trial testimony, Abshire indicated

that the day of the murder, he and Marquard went to two different bars before

9
According to Marquard’s 3.850 counsel, Abshire did not change his story until 1999.
Abshire’s death sentence was vacated in 1994 and, according to Marquard’s counsel, Abshire’s
resentencing was in 1995. Thus, it appears that Abshire’s story did not change until well after he
was resentenced to life imprisonment.

31
returning to the motel and getting ready to go out. At the first bar, they drank two

beers; at the second, they drank numerous beers, approximately one every ten to

fifteen minutes for an uncertain period of time. At some point during the night

they also drank the remains of a bottle of tequila, which was approximately four

inches of the bottle, and also ingested ephedrine. Abshire stated that he did not

remember exactly what his testimony was at trial or why he would have omitted

the fact that he and Marquard drank many beers and tequila the day and evening of

the murder, but that he was sure they had done so. However, Abshire testified that

Marquard, nevertheless, was able to drive the three of them into the woods in

inclement weather without incident.

With regard to the murder, Abshire testified that he stabbed Willets and cut

her throat because he thought she was still alive after Marquard had stabbed her,

and he wanted to put her out of her pain.

Hobart Harrison also testified briefly that Abshire claimed he, and not

Marquard, had killed Willets. Harrison previously had testified at Abshire’s trial

that Abshire told him Abshire cut Willets’s head off and left a piece of skin to hold

it on. However, Harrison failed to provide any details at the 1999 evidentiary

hearing, stating that he did not want any part of the case. Harrison also admitted

that he was not present at the crime scene and could not know whether Abshire

32
told the truth and that Abshire seemed to be trying to impress people with how

tough he was.

Garry Wood, who served along with Howard Pearl as Marquard’s trial

counsel, also testified about his involvement with Marquard’s case. Pearl was

deceased. Wood was asked about Hobart Harrison, a prison inmate with whom

Abshire talked about the murder. Wood testified that he and Pearl made a strategic

decision not to call Harrison as a witness in the guilt phase because Harrison’s

statements did not indicate that Marquard was innocent. Further, Wood would not

call him in either the guilt or the penalty phase because Harrison was not credible

and because Wood believed Harrison’s testimony would not cause jurors to be

sympathetic to either Abshire or Marquard. In addition, Wood and Pearl did not

want to call Harrison because they could not control him as their witness.10

2. Mitigation witnesses

10
Wood further testified that he did not object to the introduction of the victim’s skeleton
because he believed it was relevant evidence of the knife injuries and an objection would not be
well-founded. Wood did not present an expert to rebut the testimony of Dr. Maples because he
and Pearl were of the view that Dr. Maples was “as good as it gets in terms of forensic
anthropology in his testimony in his field,” and another expert opinion would not have helped
them. Wood did not file a motion to suppress the evidence recovered from Marquard’s room
because he did not believe he had grounds.
Wood testified that he made the strategic decision not to question jurors about the
probable emotional impact of the crime-scene evidence because “Ms. Willets was killed very
brutally” and the “evidence in the case was very sensitive, very serious,” and Wood felt that “to
play that up, if you will, up front, could prejudice the entire panel, if you got into exact details
about what happened or how her body was found, that sort of stuff.”

33
 The majority of the testimony at the 3.850 hearing related to Marquard’s

mitigation claim. Marquard contends that his trial counsel should have presented

in the penalty phase the mitigation evidence presented in the 3.850 hearing.

At the 3.850 hearing, Mariah Harrelson testified that she was Marquard’s

foster mother for a period when he was about twelve or thirteen years old, after his

stint in a boys’ home. Harrelson testified that he was a shy, bashful child, with

whom she had no problems. She described Marquard as a follower, but stated on

cross-examination that he was generally able to make up his own mind and

“mostly” seemed to know the difference between wrong and right. Harrelson had

the impression that Marquard could not depend on his mother. His father kept

telling Marquard that he would come and get him. As a result, one night Marquard

took Harrelson’s child’s bicycle and rode approximately fifty-five miles to

Jacksonville, North Carolina, where his father lived. Harrelson was never

contacted in connection with Marquard’s trial.

Eric Wallen, a friend of Marquard’s, testified that Marquard lived with

Wallen and his family for some period when they were seventeen years old.

Wallen testified that they drank alcohol every day and habitually consumed a

variety of drugs, including LSD and PCP. Wallen testified that Marquard was

somewhat “withdrawn” and “spaced out” at times. Wallen also knew Abshire, and

34
had spent time with Abshire in county jail and state prison. He described Abshire

as “a very explosive person” who was jealous in his friendships and did not like

other people to come between him and his friends. According to Wallen,

Marquard was not an aggressive person. Wallen was not contacted to be a witness

in Marquard’s trial and was in prison at the time of the trial.

Rebecca Marquard Hicks, Marquard’s oldest sister, then testified about her

and Marquard’s childhood. Hicks testified in detail about their mother’s heavy

drinking. Hicks remembered her mother’s violent behavior toward her but did not

remember whether her mother abused Marquard or their other sister. Hicks

recalled her mother often drinking all day until she passed out and also stated that

her mother consumed cocaine, marijuana, and hash. Her mother took Marquard to

bars with her and also consumed drugs in front of him when he was approximately

ten years old. At one point Marquard, at age ten, was taken to the hospital after

taking quaaludes, but their mother was passed out and did not know about the

incident. Hicks was never contacted by Marquard’s trial counsel and was sure that

their other sister Amy also had not been contacted because she had spoken to Amy

about it. Amy died in 1995.

On cross-examination, Hicks acknowledged that there was an incident in

which Marquard had been accused of molesting the daughter of their sister Amy.

35
 Wood, Marquard’s trial counsel, testified that he and Pearl made a strategic

decision to present all evidence of Marquard’s childhood, emotional, and

substance-abuse problems through Dr. Krop rather than through various other

witnesses because they wanted Dr. Krop to “put it into a mental health

perspective.” As a result of Dr. Krop’s specific expertise, Dr. Krop was in charge

of the mitigation investigation and presentation.

With regard to his failure to contact witnesses to determine if Marquard was

intoxicated when he was arrested, consented to a search, and provided a statement

to the police, Wood testified that Marquard never told him he was intoxicated.

Marquard apparently at some point told Dr. Krop that he had taken acid the day of

the arrest, but Wood testified that the defense team concluded Marquard was not

intoxicated at the time of the arrest, as follows:

And I do recall exploring with Dr. Krop further about the
ramifications of that and . . . . we did not feel, Howard Pearl and
myself, based on our information in consultation with Dr. Krop, that
either Mr. Marquard was incompetent to stand trial, incompetent to
render any statements, insane at the time of the offense or incapable of
providing a statement to the police based on any alcohol or drug
ingestion.

Dr. Michael Amiel, an expert in the field of psychiatry, testified about his

opinions about Marquard’s substance abuse and mental state. Dr. Amiel met with

Marquard three times and reviewed Marquard’s history and Dr. Krop’s

36
psychological testing of him. Based on his review, Dr. Amiel concluded that

Marquard’s impulse-control may have been mildly impaired as a result of his

alcohol consumption. Based on Marquard’s statement that he could not remember

the incident and that he zoned out at times, Dr. Amiel was of the opinion that

Marquard “might have had some kind of psychogenic amnestic period whereby he

could not therefore recall what had taken place.” Dr. Amiel testified that such a

psychogenic amnestic period “suggests that the experience was very traumatic, and

therefore, he blocked it out.” Dr. Amiel further testified that Marquard had a well-

documented chronic depressive disorder, and that the alcohol and drugs were self-

medication. Dr. Amiel agreed with Dr. Krop’s assessment of Marquard’s

personality disorder.

Dr. Barry Crown, an expert in the field of psychology, then testified about a

battery of neuropsychological tests he administered on Marquard in 1997, at the

request of Marquard’s 3.850 counsel. Dr. Crown testified that Dr. Krop had not

administered any of the tests he administered, which were focused more on

“diffuse matters of brain development.” Dr. Crown testified that the test results

suggested that Marquard’s problem-solving ability was at the level of a person

aged fifteen years and seven months, although his vocabulary was much more

advanced. The test results suggested a thought disorder and processing deficit. Dr.

37
Crown also administered a personality test that suggested a pattern of

schizophrenia, paranoid type, in a “subacute stage.” Dr. Crown testified that

Marquard’s personality and thought disorders and diminished capacity would

“reduce his capacity to reason and to exercise sound judgment, particularly when

he was under pressure.” His difficulty in problem-solving would also make him

more likely to act impulsively. However, Dr. Crown clarified that he was not

diagnosing Marquard as schizophrenic; rather, he was simply reporting that a

personality test Marquard took suggested schizophrenia. Dr. Crown further

clarified that he was not testifying that Marquard was insane.

Cheryl Furtick testified as an expert in the field of social work. Furtick

testified that Marquard’s records did not contain many significant details regarding

Marquard’s experiences and mental health. Furtick discussed Marquard’s unstable

childhood and adolescence and long history of behavioral problems. She testified

that Marquard as a child looked for the acceptance of others and did not receive it.

The State then presented Marquard’s father, Roger Marquard. Roger

Marquard testified that he divorced Marquard’s mother because she drank and

abused their daughters, but that she did not abuse Marquard. He further testified

that Marquard lived with him from age fifteen to nineteen except for an eighteen-

month stint in a hospital.

38
J. Denial of 3.850 Relief

After the evidentiary hearing, the state 3.850 court denied Marquard’s

remaining ineffective-assistance-of-counsel claims for post-conviction relief. The

3.850 court determined that trial counsel made reasonable, strategic decisions in

deciding not to question jurors about the emotional impact of the crime scene

evidence and the victim’s remains and not to call Hobart Harrison as a witness.11

In addressing Marquard’s argument that counsel was ineffective in failing to

obtain mitigating evidence about Marquard’s mental state and substance abuse, the

3.850 court found that no evidence was presented at the hearing that Marquard

suffered from any head injury, blackout periods, or memory loss. The court further

found that the evidence of Marquard’s drug and alcohol abuse and past mental

health problems were introduced at trial through the testimony of Dr. Krop. As to

the allegation that trial counsel was ineffective in failing to expand upon the

intoxication and insanity defenses, the court found that there was never any

11
With regard to trial counsel’s failure to properly litigate the State’s exclusion of the
only prospective black juror, the 3.850 court found that the juror was challenged as a result of his
opposition to the death penalty and not because of his race, and thus counsel was not ineffective
for failing to object. The court determined that the crime scene video and victim’s photograph
were admissible evidence, and thus there was no prejudice from counsel’s failure to object, and
that the decision not to hire an expert witness to counter Dr. Maples’s testimony was a strategic
decision and not ineffective assistance. As to Marquard’s assertion that counsel should have
impeached Abshire with the statements Abshire previously had made to the police about
Marquard’s intoxication and their roles in the murder, the 3.850 court found that Abshire’s prior
statements were in fact consistent with his trial testimony.

39
evidence of intoxication at the time of the crime until Abshire came up with his

latest version of events, and trial counsel could not be faulted for not attempting a

defense for which the factual basis did not exist at the time.12

With respect to the allegations that trial counsel, and Dr. Krop, were

ineffective at the penalty phase, the 3.850 court found that no evidence was

presented at the evidentiary hearing that would have presented mitigating

circumstances in the penalty phase, and that “all relevant matters in mitigation

were in fact presented at the penalty phase.”

As to Marquard’s assertion that Abshire’s changed story was “new

evidence” and that trial counsel was ineffective in failing to discover it, the court

found that “this is simply the latest version of the events surrounding the homicide

which is in direct conflict with Abshire’s prior testimony and other evidence

presented at the Defendant’s trial,” and therefore “there is no probability there

would have been a different result at trial.”

Thus, the 3.850 court found from the evidentiary hearing that trial counsel

was not ineffective in either jury selection, the guilt phase, or the penalty phase of

12
With regard to the issue of the search and Marquard’s statement to the police, the 3.850
court found that no evidence was presented that Marquard was intoxicated at the time he
consented to the search and gave the statement, or that he suffered from any mental illness that
would render his consent involuntary.

40
Marquard’s trial.13

K. 3.850 Appeal

Marquard appealed the denial of his 3.850 motion for post-conviction relief

and also filed a petition for writ of habeas corpus in the Florida Supreme Court.

The 3.850 appeal and habeas corpus petition were consolidated in the Florida

Supreme Court.

In his 3.850 appeal, Marquard raised, inter alia, these claims as claims three,

four, seven, and nine:

13
The 3.850 court did reserve jurisdiction to rule on Marquard’s latest amendment to the
3.850 motion, which alleged that the death sentence was not proportional because Abshire
received a life sentence. Marquard appealed the denial of his 3.850 motion, but the Florida
Supreme Court temporarily relinquished jurisdiction for the sole purpose of allowing the 3.850
court to enter an order on the proportionality issue. After reviewing the record, the 3.850 court
made the following findings as to the proportionality issue:
The defendant, John C. Marquard, was, in fact, the dominant person in this entire
course of events. It was John C. Marquard who made the decision that they should
kill Stacey Willets. John Marquard drove Willetts and Abshire to the wooded area,
were [sic] they eventually took her life. Marquard took both individuals through the
woods to the eventual location, were [sic] he caused the death of Stacey Willetts.
The defendant, John Marquard, was the individual who had the knife, who cut Stacey
Willetts throat, and attempted to decapitate her, and who then handed the knife to his
co-defendant[] Michael Abshire, and ordered him to stab the victim. The Court finds
that Michael Abshire had no intention to kill the victim, and was merely an
accomplice. The Court further finds that Abshire was acting [under] substantial
domination and extreme duress from the defendant Marquard. The Court further
finds that the [co-]defendant Abshire showed considerable remorse after the crime
was committed. The Court finds that the totality of the aggravating circumstances,
in the case of John C. Marquard, far out weighs the mitigating circumstances, which
were found by the trial and sentencing court. The Court further finds that based on
the totality of the circumstances in this case, that the defendant’s sentence of death
was, in fact, proportional.
Having denied all post-conviction relief, the 3.850 court remanded the case back to the Florida
Supreme Court for further proceedings.

41
 (3) Marquard had ineffective assistance of counsel at the penalty
phase; (4) he was denied a full and fair postconviction evidentiary
hearing; . . . (7) Marquard was unconstitutionally shackled during the
trial; . . . [and] (9) the jury instructions during the penalty phase were
vague or overbroad . . . .

Marquard v. State, 850 So. 2d at 423 n.1.14

In claim four, Marquard alleged that he was denied a full and fair hearing

because the 3.850 court (1) refused to permit hearsay evidence from several

14
Marquard’s 3.850 appeal also raised six other claims, to wit:
(1) newly discovered evidence as to Abshire’s life sentence establishes that
Marquard’s sentence is disproportional; (2) newly discovered evidence relative to
Abshire’s recent testimony requires that Marquard’s sentence be reduced; . . . (5)
Marquard had ineffective assistance of counsel at the guilt phase; (6) defense counsel
failed to object to comments by the prosecutor and trial judge which diminished the
jury’s role in sentencing; . . . (8) the rule prohibiting counsel from interviewing the
jurors is unconstitutional; . . . and (10) cumulative errors justify relief.
Marquard v. State, 850 So. 2d at 423 n.1. The Florida Supreme Court denied claims six and
eight as procedurally barred because they should have been raised during the direct appeal, id. at
423 n.2, and disposed of the other claims on the merits.
On Marquard’s first claim, that Abshire’s life sentence establishes that Marquard’s
sentence was disproportionate, the Florida Supreme Court affirmed the trial court’s
determination that Marquard was more culpable. Id. at 424. As to the second claim, that
Abshire’s latest testimony entitled Marquard to resentencing, the Florida Supreme Court
concluded that the new testimony did not significantly vary from his trial testimony or change
the fact that Marquard was the more culpable defendant, as follows:
Abshire’s new testimony differs only in two key aspects: (1) he contends that he and
Marquard had consumed a fair amount of alcohol on the night of the crime; and (2)
he states that Stacey may have still been alive when he cut her neck. Even Abshire’s
most recent story reveals that despite Marquard’s alleged intoxication, he was still
able to safely drive the car through inclement weather conditions and was able to trek
through the woods and attack Stacey. Moreover, Abshire’s testimony does not
change the fact that Marquard was clearly the more culpable defendant.
Id. at 425.
In addressing claim five, ineffective assistance of counsel at the guilt phase, the Florida
Supreme Court agreed with the 3.850 court that the various decisions made by trial counsel were
reasonable, strategic decisions and did not constitute ineffective assistance. Id. at 426-27.

42
witnesses, and (2) failed to take judicial notice of Hobart Harrison’s prior

testimony from Abshire’s trial proceeding on the ground that the prior testimony

would be inadmissible. Id. at 425. The Florida Supreme Court affirmed the trial

court’s evidentiary rulings on these issues. Id. at 425-26.

As to the penalty-phase ineffectiveness claims (claim three), the Florida

Supreme Court concluded that Marquard’s counsel was not ineffective in deciding

not to call as witnesses Harrison and David Blanks (another inmate). Id. at 428-29.

It further concluded that counsel was not ineffective in failing to call witnesses

other than Dr. Krop to testify about Marquard’s childhood and substance-abuse

history, stating: “Although other witnesses could have provided more details

relative to Marquard’s early life, counsel is not required to present cumulative

evidence.” Id. at 429-30. With respect to Marquard’s assertion that his counsel

failed to ensure that he received an adequate mental health evaluation, the Florida

Supreme Court noted that neither Dr. Amiel nor Dr. Crown indicated that Dr. Krop

had failed to give any specific tests, interviews, or other procedures. After

reviewing the testimony of Dr. Amiel, Dr. Crown, and Cheryl Furtick, the Florida

Supreme Court concluded that substantial evidence supported the 3.850 court’s

determination that all relevant matters in mitigation were in fact presented at the

penalty phase. Id. at 430-31.

43
 As to claim seven, the Florida Supreme Court treated Marquard’s case as if

shackling had occurred in the penalty phase and addressed the issue only as an

ineffective-assistance-of-counsel claim for failing to object to the shackling.15 The

Florida Supreme Court concluded that “[b]ecause this occurred only during the

penalty phase, and not the guilt phase, in order to show prejudice, Marquard must

show that ‘there is a reasonable probability that, absent trial counsel’s error, the

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

circumstances did not warrant death.’” Id. at 431 (quoting Cherry v. State, 781 So.

2d 1040, 1048 (Fla. 2000)).16 Based on the brutal facts of the case, the unanimous

jury recommendation of death, and the presence of no statutory and minimal non-

statutory mitigating circumstances, the Florida Supreme Court concluded that

Marquard had not met his burden on the prejudice prong. Id.17

Finally, as to claim nine – that the jury instructions, including the HAC

15
In his 3.850 appeal, Marquard raised his shackling claim both as a substantive
constitutional claim and also as an ineffective-assistance-of-counsel claim. However, the Florida
Supreme Court did not discuss his substantive constitutional claim.
16
We do not read the Florida Supreme Court’s opinion as making a finding in the 3.850
appeal that Marquard was shackled at trial, but instead as assuming that shackling occurred for
purposes of its decision. In any event, any such factual determination that shackling occurred
would be clearly erroneous and unreasonable because, as explained earlier, there is no evidence
in the record that Marquard was ever shackled. See 28 U.S.C. § 2254(d)(2). Indeed, the Florida
Supreme Court did not point to any evidence of shackling in its opinion.
17
Having found no error, the Florida Supreme Court also rejected as meritless Marquard’s
claim of cumulative error. Id. at 423 n.3.

44
instruction, during the penalty phase were vague and overbroad – the Florida

Supreme Court determined this claim was procedurally barred in a 3.850

proceeding because it should have been raised on direct appeal. Id. at 423 n.2.

However, as noted earlier, Marquard’s counsel did object to the constitutionality of

the HAC instruction at trial, on direct appeal, and in his 3.850 motion.

In his state habeas corpus petition, Marquard raised the following additional

claims:

(1) whether newly discovered evidence demonstrates that Marquard’s
death sentence is disproportional and disparate; (2) whether the
prosecutor improperly introduced nonstatutory aggravators during the
penalty phase; (3) whether Marquard is entitled to resentencing based
on improper jury instructions; (4) whether the jury instructions shifted
the burden of proof to Marquard; and (5) whether his execution is
unconstitutional because Marquard may be incompetent at that time.

Id. at 431. The Florida Supreme Court summarily denied the first claim, which

asserted the same claim raised and addressed in Marquard’s 3.850 motion, and also

summarily denied claim five as moot because it was prematurely raised. Id. at 431

n.13. The Florida Supreme Court denied the remaining claims as meritless. Id. at

431-33.

Marquard then filed in the Florida Supreme Court a motion for

reconsideration, which was denied.

L. Section 2254 Petition

45
 On September 23, 2003, Marquard filed in the district court a Petition for

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, which he subsequently

amended. Marquard’s amended § 2254 petition raised, inter alia, these claims: (1)

that Marquard’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were

violated when the jury saw him in shackles during his penalty phase, and trial

counsel was constitutionally ineffective in failing to object to the shackling; (2)

that trial counsel was ineffective in failing to present mitigation evidence about

Marquard’s background in the penalty phase; and (3) that the HAC jury

instruction, among others, was unconstitutionally vague and overbroad, and that

trial counsel was constitutionally ineffective in failing to litigate and preserve this

issue.18

On April 5, 2004, the district court denied Marquard’s § 2254 petition

except for certain claims. On January 13, 2005, the district court entered an order

denying the remaining claims.

As to Marquard’s mitigation claim, the district court deferred to the Florida

courts’ determination that additional mitigating evidence that could have been

presented about Marquard’s childhood, in addition to the testimony of Dr. Krop

about those topics, was cumulative, and that trial counsel’s strategic decision not to

18
Marquard’s amended § 2254 petition raised seventeen claims, but we focus only on the
issues addressed in the certificate of appealability issued by this Court.

46
present that evidence was not ineffective. As to the alleged shackling, the district

court also concluded that the Florida Supreme Court’s determination that

Marquard was not prejudiced by any shackling in the penalty phase of his trial was

a reasonable application of clearly established federal law, and thus was entitled to

deference.

As to the HAC-constitutionality claim, the district court noted that the

Florida Supreme Court concluded that the constitutionality issue was procedurally

barred because it should have been raised on direct appeal. The district court thus

concluded that it was precluded from addressing the merits of the HAC-

constitutionality issue. However, as noted earlier, Marquard in fact had challenged

the constitutionality of the HAC instruction at trial, on direct appeal, and in his

3.850 motion.

As to the ineffectiveness claim based on the failure to object to the HAC

instruction, the district court concluded that the HAC-ineffectiveness issue was

procedurally barred because Marquard did not raise it in his 3.850 motion. It is

correct that Marquard did not raise this HAC-ineffectiveness issue in his 3.850

motion – indeed, his counsel had objected to the HAC instruction at trial and on

direct appeal, so there was no ineffectiveness claim to be raised.

M. Certificate of Appealability

47
 This Court granted a COA on the following issues: (1) whether Petitioner

Marquard’s constitutional rights were violated when he was shackled in front of

the jury during his penalty phase; (2) whether defense counsel was constitutionally

ineffective for failing to present certain mitigation evidence during the penalty

phase; (3) whether defense counsel was constitutionally ineffective for failing to

challenge the constitutionality of the “Heinous, Atrocious, and Cruel” jury

instruction regarding aggravating factors during the penalty phase;19 (4) to the

extent the State claims any of the above three claims are procedurally barred,

whether those three claims or any of them are procedurally barred, and why; (5)

what Florida law required at the time of defendant’s State court trial in 1991 with

regard to shackling a defendant in front of the jury, and whether defense counsel

was constitutionally ineffective for failing to object to the defendant’s being

shackled in front of the jury in his penalty phase; and (6) to the extent the State

claims that issue five above is procedurally barred, whether that issue is

procedurally barred, and why.

II. STANDARD OF REVIEW

The district court’s and this Court’s review of the final state judgment on

Marquard’s claims are pursuant to 28 U.S.C. § 2254, as amended by the Anti-

19
The COA was granted before we reviewed the record and determined that Marquard’s
counsel had objected to the HAC instruction at trial, on direct appeal, and in the 3.850 motion.

48
Terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132.

Our review is highly deferential. First, § 2254(e)(1) establishes the

following standard of review for factual determinations made by a state court: “[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); Robinson

v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002). Second, § 2254(d) allows federal

habeas relief to be granted for a claim adjudicated on the merits in state court only

if the state court adjudication “(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); Robinson,

300 F.3d at 1342-43.

As the Supreme Court has noted, 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.” Bell v. Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 1849

(2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04, 120 S. Ct. 1495 (2000));

49
Robinson, 300 F.3d at 1343.

III. MITIGATING EVIDENCE CLAIM

Marquard first asserts that his trial counsel was constitutionally ineffective

in failing to present in the penalty phase certain mitigation evidence relating to

Marquard’s childhood and his mental and emotional troubles. Specifically,

Marquard contends that his trial counsel did not read the host of relevant records,

including school, prison, and counseling records and mental health evaluations,

available for review, and instead simply forwarded those records on to Dr. Krop

for his review. As a result, Marquard argues, counsel failed to contact witnesses

who could and should have been called to testify at trial, and those witnesses were

not presented until his 3.850 hearing.

We review the Florida courts’ legal conclusions to determine if they were

contrary to, or involved an unreasonable application of, clearly established federal

law. 28 U.S.C. § 2254(d)(1). We thus review the legal principles that govern

Marquard’s claim.

A. Governing legal principles

“It is well established that the Supreme Court’s decision in Strickland [v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)] is the ‘controlling legal

authority’ to be applied to ineffective assistance of counsel claims.” Robinson v.

50
Moore, 300 F.3d 1320, 1343 (11th Cir. 2002) (quoting Williams v. Taylor, 529

U.S. 362, 406 120 S. Ct. 1495 (2000)). To prevail, a petitioner “must show both

incompetence and prejudice.” Chandler v. United States, 218 F.3d 1305, 1312

(11th Cir. 2000) (en banc).

The standard governing counsel’s performance is “reasonableness under

prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065.

“The purpose of ineffectiveness review is not to grade counsel’s performance,” but

to determine whether that performance fell within the broad range “of what might

be a reasonable approach at trial.” Chandler, 218 F.3d at 1313. “To state the

obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable. But, the issue is not what is

possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’” Id. (quoting Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 3126

(1987)). The burden of persuasion is on the petitioner to prove by a preponderance

of the evidence that counsel’s performance was unreasonable. Id. at 1313-14.

“Judicial scrutiny of counsel’s performance must be highly deferential.”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “There are countless ways to

provide effective assistance in any case,” id., and “it does not follow that any

counsel who takes an approach we would not have chosen is guilty of rendering

51
ineffective assistance,” Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir. 1995) (en

banc). “Nor does the fact that a particular defense ultimately proved to be

unsuccessful demonstrate ineffectiveness.” Chandler, 218 F.3d at 1314. Rather, “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 (quotation marks and citation omitted). “[B]ecause counsel’s conduct is

presumed reasonable, for a petitioner to show that the conduct was unreasonable, a

petitioner must establish that no competent counsel would have taken the action

that his counsel did take.” Chandler, 218 F.3d at 1315. Given this strong

presumption in favor of competence, this Court has recognized that the petitioner’s

burden of persuasion is a heavy one, and “the cases in which habeas petitioners can

properly prevail are few and far between.” Id. at 1315, 1313 (quotation marks,

citation, and punctuation omitted).

In reviewing counsel’s performance, we must “eliminate the distorting

effects of hindsight” and “evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. For example, “[i]t is

common practice for petitioners attacking their death sentences to submit affidavits

52
from witnesses who say they could have supplied additional mitigating [] evidence,

had they been called or . . . had they been asked the right questions.” Waters, 46

F.3d at 1513-14. However, “[t]he mere fact that other witnesses might have been

available or that other testimony might have been elicited from those who testified

is not a sufficient ground to prove ineffectiveness of counsel.” Id. (quotation

marks and citation omitted).

With regard to the presentation of mitigating evidence, this Court has

explained that “[c]ounsel is not required to present every nonfrivolous defense; nor

is counsel required to present all mitigation evidence, even if the additional

mitigation evidence would not have been incompatible with counsel’s strategy.”

Chandler, 218 F.3d at 1319; see Waters, 46 F.3d at 1511 (“Our decisions are

inconsistent with any notion that counsel must present all available mitigating

circumstance evidence.”). Indeed, there is no absolute duty to introduce mitigating

evidence at all. Chandler, 218 F.3d at 1319.

As for the second prong, “[a] petitioner’s burden of establishing that his

lawyer’s deficient performance prejudiced his case is high.” Robinson, 300 F.3d at

1343-44 (quotation marks, citation, and punctuation omitted). “Under the

prejudice prong of Strickland, it is not enough for the defendant to show that the

errors had some conceivable effect on the outcome of the proceeding.” Grayson v.

53
Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001) (quotation marks and citation

omitted). Rather, the petitioner “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Chandler, 218 F.3d at 1312-13 (quotation marks and citation

omitted).

B. “Contrary to” Clause

Here, we easily conclude that the Florida Supreme Court’s decision on the

mitigation-evidence-ineffectiveness claim was not “contrary to” clearly established

federal law. “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 this Court has on a set of materially indistinguishable facts.” Williams, 529

U.S. at 412-13, 120 S. Ct. 1495, 1523. “The ‘contrary to’ clause in § 2254(d)(1)

suggests that the state court’s decision must be substantially different from the

relevant Supreme Court precedent.” Robinson, 300 F.3d at 1344 (quotation marks

and citations omitted). “Although a state court’s decision that applies a rule that

contradicts the governing Supreme Court law is ‘contrary,’ a state court decision

that applies the correct legal rule based on Supreme Court law to the facts of the

petitioner’s case would not fit within the ‘contrary to’ clause even if the federal

54
court might have reached a different result relying on the same law.” Id. (quotation

marks and citations omitted).

The Florida Supreme Court articulated the proper governing legal principles

in addressing Marquard’s ineffective assistance claims. Specifically, in addressing

Marquard’s 3.850 ineffectiveness claim, the Florida Supreme Court noted that,

pursuant to Strickland, a defendant seeking to establish a claim of ineffective

assistance of counsel must prove two elements:

“First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction .
. . resulted from a breakdown in the adversary process that renders the
result unreliable.”

Marquard v. State, 850 So. 2d 417, 426 (Fla. 2003) (quoting Valle v. State, 778 So.

2d 960, 965 (Fla. 2001)) (other citation omitted). Marquard does not cite any case

in which the Supreme Court was faced with materially indistinguishable facts and

reached a decision different than that reached by the Florida Supreme Court here;

nor are we aware of any such case. Thus, the Florida Supreme Court’s decision is

not “contrary to” clearly established federal law.

C. “Unreasonable application” Clause

55
 We next address whether the Florida Supreme Court’s decision involved an

“unreasonable application” of federal law, as determined by the United States

Supreme Court. The Supreme Court has clarified that this analysis is an objective

one, and that “an unreasonable application is different from an incorrect one.” Bell

v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850 (2002). Further, “a federal

habeas court may not issue a writ under the unreasonable application clause simply

because that court concludes in its independent judgment that the relevant state-

court decision applied clearly established federal law erroneously or incorrectly.”

Id. (quotation marks and citations omitted).

On appeal in this Court, Marquard argues that his trial counsel was

ineffective in failing to contact and interview several witnesses, including members

of Marquard’s family, who testified at his 3.850 hearing about his troubled

childhood, alcohol- and substance-abuse problems, and other psychological

problems. Marquard argues that trial counsel improperly relied exclusively on the

testimony of Dr. Krop as to those matters, and that if the witnesses called at the

3.850 hearing had testified in his penalty phase, the outcome would have been

different.

With regard to this claim, the Florida 3.850 court concluded that the

testimony presented in that hearing did not support Marquard’s assertion that the

56
testimony would have affected his penalty phase. Specifically, the 3.850 court

found as follows:

Contrary to the allegations in the Motion, no evidence was presented
that the Defendant suffers from any history of head injuries, blackout
periods, or memory loss. The evidence was clear that the defendant
suffers from a history of drug and alcohol abuse, which was, in fact,
entered into evidence pursuant to testimony of Dr. Krop. The
evidence of the Defendant’s past mental health problems were also
introduced pursuant to testimony of Dr. Krop. . . .
....
. . . Contrary to the allegations in the Motion, Roger Marquard,
the Defendant’s father, testified that the Defendant’s mother was not
an alcoholic when the defendant was born and that family life was
relatively normal until the Defendant was approximately five years of
age. At that time the Defendant’s mother became an alcoholic and the
parties divorced. The Defendant’s sister testified that the mother was
abusive to her, but never to the Defendant. The Defendant’s second
sister, Amy, is deceased at this time and trial counsel cannot be
faulted for failing to call her during the sentencing phase. The
evidence is clear that if Amy had been called as a witness, she would
have had to testify concerning the Defendant’s conviction for
molesting her child. No evidence was presented of any information
which would have presented mitigating circumstances in the penalty
phase.
Contrary to the allegations in the Motion for Post Conviction
Relief, no evidence was presented to show that John Marquard was
ever sexually molested as a child either at home or by neighbors.
There was no evidence presented at the evidentiary hearing that the
Defendant’s mother ever abused him, either physically or mentally.
The Defendant never provided trial counsel with the names of any
witnesses in mitigation. Trial counsel cannot be faulted for failing to
call witnesses whose names are not disclosed by the Defendant. Jones
v. State, 528 So.2d 1171, 1173 (Fla. 1988) and Highsmith v. State,
617 So.2d 825, 826 (Fla. 1st DCA 1993).

The Florida Supreme Court affirmed the findings and conclusions of the

57
3.850 court, concluding that the evidence was merely cumulative to the testimony

of Dr. Krop, and thus that trial counsel’s decision not to present the evidence did

not constitute ineffective assistance:

Dr. Krop testified relative to Marquard’s history of drug use and
childhood abuse and informed the jury as to the effects of this history
on Marquard’s present state of mind. The jury thus knew of
Marquard’s drug addiction, that it began at an early age, and that he
had a deprived childhood. Although other witnesses could have
provided more details relative to Marquard’s early life, counsel is not
required to present cumulative evidence. Accordingly, we do not find
that Marquard’s counsel was ineffective in his representation.

Marquard, 850 So. 2d at 429-30 (footnotes omitted).

The Florida Supreme Court’s decision on this issue does not involve an

unreasonable application of federal law. First, the 3.850 testimony does not

establish any statutory mitigating factor. The only statutory factor argued at all by

Marquard is: “The capital felony was committed while the defendant was under the

influence of extreme mental or emotional disturbance.” Fla. Stat. § 921.141(6)(b).

Marquard seems to argue that trial counsel was ineffective in failing to present

additional evidence to support this statutory mitigating factor; however, Marquard

fails to establish that any such additional evidence exists. Indeed, we see no other

evidence in the 3.850 transcript, or elsewhere in the record, that would support the

statutory mitigating factor. We thus reject Marquard’s claim that his counsel was

58
ineffective in failing to present additional evidence about this factor.20

Second, none of the new mitigating evidence affects the four aggravating

factors presented to the jury. The jury was instructed on four aggravating factors:

(1) the capital felony was committed by a person under a sentence of imprisonment

or Community Control, including parole; (2) the crime was committed while he

was engaged in the commission of a robbery or was committed for financial gain;

(3) the crime was especially heinous, atrocious, or cruel; and (4) the crime was

committed in a cold, calculated, and premeditated manner without any pretense of

moral or legal justification. The evidence presented in the 3.850 hearing simply

offered more details about Marquard’s troubled childhood, substance abuse, and

emotional and mental problems. The evidence did not relate to his actions or state

of mind at the time of the murder, and thus does not alter any of these factors.

Marquard does not argue otherwise.

20
Marquard also seems to argue that trial counsel failed to conduct a reasonable
investigation to uncover evidence supporting this statutory mitigating factor. However, the
Supreme Court has clearly stated that “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing.” Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 2541 (2003).
Rather, a decision not to investigate further is reviewed for “reasonableness in all the
circumstances.” Id. at 521(quotation marks and citation omitted).
Marquard’s trial counsel presented, through Dr. Krop, voluminous and detailed evidence
about Marquard’s childhood, substance abuse, and mental and emotional state, and Marquard
has presented no evidence suggesting that a further or different investigation was warranted.
Under these circumstances, there is no evidence to suggest that the investigation conducted by
Marquard’s counsel was unreasonable. In any event, even assuming that trial counsel erred in
not investigating further, Marquard has presented no evidence that such an investigation would
have yielded helpful mitigating evidence, and thus he has failed to establish prejudice.

59
 Third, the new mitigation evidence does not affect any of the nonstatutory

mitigating factors applicable here. As noted by the 3.850 court and Florida

Supreme Court, Dr. Krop testified extensively at trial about Marquard’s deprived

and difficult childhood, his history of substance abuse, and his personality

disorders. The sentencing court at trial found on that basis that Marquard “had an

unstable family life as a child and lacked the emotional support and care he should

have received,” and that Marquard had a “difficult childhood,” an alcoholic

mother, used various drugs and suffered from personality disorders. The

sentencing court further stated that “[t]he strongest mitigating circumstance is

defendant’s difficult childhood. He did not have a stable home. He was in a group

home, a therapeutic foster home, and the state hospital. He lived with an alcoholic

mother.”

However, the sentencing court further concluded that the aggravating factors

overwhelmed the mitigating factors. The evidence presented at the 3.850 hearing

simply added unnecessary detail about these same issues, which were already

adequately established by Dr. Krop’s testimony at trial and acknowledged by the

sentencing court.21 There is no reason to believe that added details about

21
At oral argument Marquard’s counsel pointed out that Dr. Krop testified that Marquard
was referred from the boys’ home to a “therapeutic” foster home and indicated that Marquard
had in fact been placed in such a foster home. In her testimony at the 3.850 hearing, however,
Mariah Harrelson, Marquard’s foster mother when he left the boys’ home, testified that her

60
Marquard’s troubled childhood and substance abuse – which the sentencing court

clearly recognized in imposing a death sentence – would have had any effect on the

sentence. Accordingly, the new mitigation evidence offered at the 3.850 hearing

was cumulative, and trial counsel was not ineffective in failing to present it. See

Van Poyck v. Florida Dep’t. of Corrs., 290 F.3d 1318, 1324 n.7 (11th Cir. 2002)

(“A petitioner cannot establish ineffective assistance by identifying additional

evidence that could have been presented when that evidence is merely

cumulative.”).

In addition, as the 3.850 court noted, the presentation of certain witnesses

would have involved presentation of evidence damaging to Marquard. For

example, had Marquard’s sister Amy been called upon to testify about their

upbringing, she likely would have testified about Marquard’s conviction for

molesting her child.

Under these circumstances, trial counsel’s decision to present mitigation

evidence regarding Marquard’s childhood, substance abuse, and emotional and

mental problems through Dr. Krop rather than through the other witnesses who

home was not a “therapeutic” foster home but was just a “regular foster home.” Marquard
argues that the jury was led by Dr. Krop to believe that Marquard had received certain therapy
that he did not actually receive and that he was prejudiced by this misinformation. Even if the
jurors might have misunderstood this minor point, Marquard was thirteen or fourteen at that
time, and we cannot conceive of any way in which this misstatement could have affected
Marquard’s sentence.

61
testified at the 3.850 hearing is a classic example of a strategic decision not to be

second-guessed by this Court. See Conklin v. Schofield, 366 F.3d 1191, 1204

(11th Cir. 2004) (“‘Which witnesses, if any, to call, and when to call them, is the

epitome of a strategic decision, and it is one that we will seldom, if ever, second

guess.’”) (quoting Waters, 46 F.3d at 1512). This tactical decision cannot be

considered ineffective assistance of counsel. Accordingly, the Florida Supreme

Court’s decision in Marquard’s 3.850 appeal that he failed to establish ineffective

assistance of counsel as to or in regard to the mitigation evidence did not involve

an unreasonable application of federal law.

IV. SHACKLING CLAIMS

On appeal, Marquard next raises a due process claim based on his being

handcuffed before the jury in the penalty phase and an ineffective-assistance-of-

counsel claim based on his trial counsel’s failing to object to this shackling during

the penalty phase. Thus, Marquard raises both a substantive constitutional claim

and an ineffective-assistance-of-counsel claim based on shackling (the “IAC-

shackling” claim), which we address in turn.

A. Due Process Claim

1. No Evidence of Shackling in the Record

As noted earlier, this Court ordered supplemental briefs setting forth the

62
factual basis for Marquard’s shackling claims, including citations to the record.

The government’s brief submits that the state trial record contains no evidence or

indication of Marquard’s ever being shackled at any time during the trial. The

government emphasizes that Marquard also presented no affidavit or proffer in his

state post-conviction proceedings as to his ever being shackled during the trial. In

response, Marquard’s brief provides only one citation in the state trial record where

he alleges shackling occurred during the trial. As noted earlier, Marquard’s record

citation is to the jury-selection proceedings in the guilt phase, not in the penalty

phase. Even as to jury selection during the guilt phase, the record citation, given

by Marquard and quoted earlier, also does not show that Marquard was shackled in

the presence of the jury.

At the outset, we thus conclude that there is no evidence in this record that

Marquard was ever shackled before the jury during the penalty phase.

Accordingly, Marquard’s due process claim based on shackling during the penalty

phase is without merit.

Before leaving this evidentiary matter, we do note that Marquard’s 3.850

motion asked for an evidentiary hearing on all claims, which necessarily included

his shackling claim. The 3.850 court granted Marquard an evidentiary hearing as

to his ineffective-assistance-of-counsel claim based on insufficient mitigating

63
evidence in the penalty phase but not as to his due process or IAC-shackling claims

based on shackling in the penalty phase. However, no evidentiary hearing was

necessary for Marquard to present evidence of shackling before the 3.850 court.

The shackling allegedly happened to Marquard himself, and thus his 3.850 counsel

easily could have filed an affidavit from Marquard attesting to that effect. In

addition, during the evidentiary hearing on Marquard’s mitigation claims, the

3.850 court also allowed Marquard’s counsel to make a proffer as to a separate

claim based on alleged ineffective assistance during voir dire.22 In contrast,

Marquard and his counsel never asked to make a proffer, nor made a proffer,

stating when, where, and for how long he was allegedly shackled during the

penalty phase. Indeed, Marquard’s 3.850 counsel called Marquard’s former trial

attorney as a witness during the 3.850 evidentiary hearing, but never asked

22
In his direct examination of Marquard’s trial counsel, Marquard’s 3.850 counsel
proffered questions about trial counsel not hiring a jury consultant for voir dire after the State
objected that the questions were outside the scope of the 3.850 motion:
THE COURT: I don’t believe that there was any allegation that
counsel was ineffective during voir dire.
....
[3.850 COUNSEL]: Judge, may I proffer the question for the record?
[THE COURT]: Proffer it.
[BY 3.850 COUNSEL]
Q: Did you hire a jury consultant in this case to help with jury selection?
A: No.
Q: Did you have any discussion with Mr. Pearl about that?
A: No.
[THE STATE]: Is that the end of the proffer?
[3.850 COUNSEL]: Yes.

64
Marquard’s former trial attorney whether Marquard was shackled before the jury

during the penalty phase. Thus, Marquard and his 3.850 counsel had ample

opportunity to present an affidavit, or at least a proffer, that Marquard was

shackled, but failed to develop any type of factual predicate for his shackling

claims in his post-conviction state court proceedings.

Alternatively, even assuming that Marquard was handcuffed at some point

before the jury in the penalty phase, his due process claim based on shackling is

procedurally barred for the reasons explained below.

2. Procedural Bar as to Due Process Claim

The 3.850 court concluded that Marquard’s substantive shackling claim was

procedurally barred under Florida law because it “has been or should have been

raised” on direct appeal. Reviewing the state court record, we find that Marquard

did not raise the substantive shackling issue in the state trial court or on direct

appeal. Rather, Marquard first raised his substantive shackling claim in his 3.850

motion. Because Marquard’s shackling claim was not raised at trial or on direct

appeal, we conclude that the state 3.850 court’s procedural-bar determination under

Florida law rests on an independent and adequate state ground that precludes

federal habeas consideration of this issue. See LeCroy v. Fla. Dept. of Corrs., 421

65
F.3d 1237, 1260 (11th Cir. 2005).23

3. Non-retroactivity of Deck v. Missouri

Even if Marquard’s substantive shackling claim is not procedurally barred,

Marquard has failed to establish that, at the time of his trial in 1993, the alleged

shackling during the penalty phase violated his federal constitutional rights to due

process.

In arguing that his due process rights were violated in the penalty phase,

Marquard relies on the United States Supreme Court’s recent decision in Deck v.

Missouri, 125 S. Ct. 2007, 2014-15 (2005). The Supreme Court in Deck

announced this new constitutional rule of criminal procedure: that routine

shackling during the penalty phase of a capital trial, without a case-specific finding

that security needs justify the shackling, violates a defendant’s due process rights

unless the state shows beyond a reasonable doubt that the shackling did not

contribute to the verdict.24

23
The only cause cited by Marquard for the failure to raise the substantive shackling
claim at trial is the alleged ineffective-assistance-of-counsel claim, which claim, as explained
below, lacks merit as well. Thus, Marquard has failed to establish cause for his failure to raise
this substantive shackling issue in the Florida state courts.
24
The Supreme Court in Deck cautioned that this “constitutional requirement, however, is
not absolute” but “[i]t permits a judge, in the exercise of his or her discretion, to take account of
special circumstances, including security concerns, that may call for shackling.” Deck, 125 S.
Ct. at 2014-15. The determination of whether shackling is warranted “must be case specific”
and “should reflect particular concerns, say special security needs or escape risks, related to the
defendant or trial.” Id. at 2015.

66
 The problem for Marquard is that Deck establishes a new rule that does not

apply retroactively to Marquard’s § 2254 petition. See Turner v. Crosby, 339 F.3d

1247, 1282-83 (11th Cir. 2003), cert. denied, 541 U.S. 1034, 124 S. Ct. 2104

(2004); Teague v. Lane, 489 U.S. 288, 310-313, 109 S. Ct. 1060, 1075-77 (1989).

Under Teague, “a case announces a new rule when it breaks new ground or

imposes a new obligation on the States or the Federal Government [or] . . . if the

result was not dictated by precedent existing at the time the defendant’s conviction

became final.” 489 U.S. at 301, 109 S. Ct. at 1070; Turner, 339 F.3d at 1284.

Supreme Court precedent as to shackling prior to Deck did not involve the penalty

phase of a capital trial. Rather, prior Supreme Court precedent as to shackling in

the presence of a jury involved only shackling before a determination of guilt. See

Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 1345-46 (1986), Illinois

v. Allen, 397 U.S. 337, 343-344, 90 S. Ct. 1057 (1970)). In fact, until Deck, the

Supreme Court had not addressed at all the very different issue of shackling during

the penalty phase of a capital trial where the defendant has already been convicted

of a serious, violent crime by the jury. While the Supreme Court’s prior precedent

regarding shackling before a guilty determination “may have been a harbinger” of

the Deck decision, prior precedent did not dictate the application of that precedent

to the penalty phase after a capital conviction by the jury. See Turner, 339 F.3d at

67
1284-85 (concluding that the Supreme Court’s decision in Ring v. Arizona, 536

U.S. 584, 122 S. Ct. 2428 (2002), in which it extended to capital cases the rule

previously announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000), was a new rule).25

In addition, neither of Teague’s two narrow exceptions to the general rule of

non-retroactivity applies here. Under Teague, “[a] new rule should be applied

retroactively only if it (1) ‘places certain kinds of primary private individual

conduct beyond the power of the criminal law-making authority to proscribe,’ or

(2) ‘requires the observance of those procedures that . . . are implicit in the concept

of ordered liberty.’” McCoy v. United States, 266 F.3d 1245, 1255 (11th Cir.

2001) (quoting Teague, 489 U.S. at 307, 109 S. Ct. 1060).

The first exception is inapplicable because Deck’s new rule does not

“narrow the scope of a criminal statute by interpreting its terms” or “place

particular conduct or persons covered by the statute beyond the State’s power to

punish,” but rather regulates “only the manner of determining” the defendant’s

25
Furthermore, the reasoning supporting the pre-conviction precedent did not dictate its
application to the penalty phase of a capital trial. Where a defendant is handcuffed before the
jury, the paramount constitutional concern expressed by prior precedent is that the sight of the
defendant shackled could undermine the presumption of innocence by conveying the impression
that the defendant is dangerous. See Holbrook, 475 U.S. at 568-69, 106 S. Ct. 1340. In the
penalty phase of a capital case, the defendant’s guilt of a serious, violent crime has already been
established. Thus, the main reasoning of the Supreme Court’s pre-conviction precedent did not
dictate the penalty-phase rule established in Deck.

68
sentence. Schriro v. Summerlin, 124 S. Ct. 2519, 2522-23 (2004).26 Deck’s new

rule is clearly one of procedure rather than substance.

The second exception is also not met because Deck’s new rule is not one of

those “watershed rules of criminal procedure implicating the fundamental fairness

and accuracy of criminal proceedings.” Schriro, 124 S. Ct. at 2523 (quotation

marks and citations omitted). “That a new procedural rule is ‘fundamental’ in

some abstract sense is not enough; the rule must be one without which the

likelihood of an accurate conviction is seriously diminished.” Id. (quotation marks

and citation omitted). Indeed, the Supreme Court has explained that “[t]his class of

rules is extremely narrow, and it is unlikely that any has yet to emerge.” Id.

(quotation marks, citations, and punctuation omitted).

Deck’s new rule – that routine shackling during the penalty phase of a

capital trial, without a case specific finding that security needs require shackling,

violates due process unless the state shows it did not contribute to the verdict – is

indisputably important for defendants. However, Deck’s new constitutional rule is

26
Certain new substantive rules that narrow the scope of a criminal statute “apply
retroactively because they necessarily carry a significant risk that a defendant stands convicted
of an act that the law does not make criminal or faces a punishment that the law cannot impose
upon him.” Schriro, 124 S. Ct. at 2522-23 (quotation marks and citations omitted). New rules of
procedure, on the other hand, generally do not apply retroactively because “[t]hey do not
produce a class of persons convicted of conduct the law does not make criminal, but merely raise
the possibility that someone convicted with the use of the invalidated procedure might have been
acquitted otherwise.” Id. at 2523.

69
not absolute, and a defendant may be shackled before the jury if the trial court

determines that security needs or other factors so dictate. Accordingly, the absence

of the Deck rule does not cast serious doubt on the accuracy or fundamental

fairness of the proceedings, and thus does not fall within the narrow exception for

watershed procedural rules. As a result, Deck’s new rule for the penalty phase of a

capital trial does not apply retroactively to Marquard’s case. Therefore, Marquard

has not shown that any assumed shackling during the penalty phase violated his

federal due process rights in 1993.

B. IAC-shackling Claim

As for Marquard’s IAC-shackling claim, Marquard argues that his trial

counsel was ineffective for failing to object to his being shackled before the jury

during the penalty phase. Marquard raised the IAC-shackling claim in his 3.850

motion and in his appeal of the denial of his 3.850 motion. The Florida Supreme

Court affirmed the denial of Marquard’s IAC-shackling claim in his 3.850 motion.

In Marquard’s 3.850 appeal, the Florida Supreme Court did not mention the

performance prong or any evidence of shackling. Marquard v. State, 850 So.2d

417, 431 (Fla. 2002). Rather, the Florida Supreme Court ruled on only the

prejudice prong of Marquard’s IAC-shackling claim. Id.

As to the prejudice prong, the Florida Supreme Court determined that “in

70
order to show prejudice, Marquard must show that ‘there is a reasonable

probability that, absent trial counsel’s error, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.’” Id. (citation omitted).

In concluding that Marquard had not met this standard, the Florida Supreme

Court emphasized that: (1) “Marquard coldly and carefully planned to murder his

girlfriend because he was tired of her bickering and wanted her car and money”;

(2) “[h]e made up a story to entice her into the woods, stabbed her, drowned her,

directed his friend to stab her, and then tried to decapitate her”; (3) “[a]fter she was

dead, he searched her pockets for money and car keys and divided her possessions

with his codefendant”; (4) “[t]he jury unanimously recommended a sentence of

death”; and (5) the trial court imposed the death sentence “after finding four

aggravating circumstances, no statutory mitigating circumstances, and minimal

nonstatutory mitigating circumstances.” Id. The Florida Supreme Court

specifically concluded that “there is no reasonable probability that but for the

shackling of [Marquard], the sentencer would have concluded that the defendant

did not deserve a death sentence.” Id.

Under the circumstances of this case – a brutal, premeditated murder, a

unanimous jury recommendation of a death sentence, and a sentencing judge’s

71
finding of four aggravating and no statutory mitigating evidence – we cannot say

that the Florida Supreme Court’s decision on the prejudice prong of Marquard’s

IAC-shackling claim is contrary to or involves an unreasonable application of

federal law or involves an unreasonable determination of facts.

Furthermore, Deck does not undermine the Florida Supreme Court’s

decision on Marquard’s IAC-shackling claim or help his IAC-shackling claim for

several reasons. First, as explained above, Deck does not apply retroactively to

Marquard’s case. Second, Marquard’s trial counsel’s performance was not

ineffective in failing to contemplate Deck. See Spaziano v. Singletary, 36 F.3d

1028, 1039 (11th Cir. 1994) (“We have held many times that ‘[r]easonably

effective representation cannot and does not include a requirement to make

arguments based on predictions of how the law may develop.’”) (citations to three

other Eleventh Circuit decisions omitted); Thompson v. Wainwright, 787 F.2d

1447, 1459 n.8 (11th Cir. 1986) (“[D]efendants are not entitled to an attorney

capable of foreseeing the future development of constitutional law.”).

Third, Deck did not involve an IAC-shackling claim on collateral review but

instead involved a direct appeal where trial counsel objected to shackling before

the jury. While Deck shifted the burden to the state on direct appeal to prove that

routine shackling without a specific-needs inquiry did not contribute to the verdict,

72
Deck did not address, much less alter, the burden and different required prejudice

showing on Marquard’s IAC-shackling claim. After Deck, Marquard still has the

burden in his IAC-shackling claim to establish a reasonable probability that, but for

his trial counsel’s failure to object to shackling, the result of his sentencing would

have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.

2052, 2068 (1984) (holding that to establish a Sixth Amendment violation a

defendant must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different”).27

Thus, in this case, Marquard still must show a reasonable probability that,

absent his being shackled, the sentencer would have concluded that the balance of

aggravating factors and mitigating factors did not warrant death and would have

imposed a life sentence. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069

(“When a defendant challenges a death sentence such as the one at issue in this

case, the question is whether there is a reasonable probability that, absent errors,

the sentencer – including an appellate court, to the extent it independently reweighs

the evidence – would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.”); Chandler v. United States, 218

27
The United States Supreme Court has defined “reasonable probability” as “a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.
2052.

73
F.3d 1305, 1312-13 (11th Cir. 2000) (en banc) (quotation marks and citations

omitted); Earhart v. Johnson, 132 F.3d 1062, 1067 (5th Cir. 1998) (concluding that

even if counsel’s failure to obtain expert testimony would have mandated reversal

on direct appeal, the defendant still must show that the expert’s testimony would

have altered the outcome of the trial in order to succeed on an ineffective-

assistance claim for failure to call the expert).

Marquard’s burden of establishing this second prong is “high.” Robinson v.

Moore, 300 F.3d 1320, 1343-44 (11th Cir. 2002). Again, given the brutal,

premeditated murder, the unanimous jury recommendation of death, and the four

aggravating and no mitigating circumstances of this case, the Florida Supreme

Court’s decision that Marquard has not met this burden is not an unreasonable

application of federal law as to the second prong of his IAC-shackling claim.28

Marquard’s failure to show a reasonable probability that his not being shackled

during the penalty phase would have altered the outcome of his sentencing is fatal

28
When a defendant is shackled without the trial court’s making a factual inquiry into the
necessity of the shackles, the Florida Supreme Court appears to follow the same approach: that
is, such a shackling claim timely raised on direct appeal may warrant a new trial unless the
government shows the error was harmless, but post-conviction IAC claims based on failure to
object to shackling at trial do not warrant a new trial unless the defendant shows “‘that there is a
reasonable probability that, absent trial counsel’s error, the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances did not warrant death.’” Compare
Marquard v. State, 850 So.2d 417, 431 (Fla. 2002) (quoting Cherry v. State, 781 So. 2d 1040,
1048 (Fla. 2000)) with Bryant v. State of Fla., 785 So.2d 422, 429 (Fla. 2001) (applying
harmless-error standard to a shackling claim rejected by trial court and raised on direct appeal),
and Bello v. State of Fla., 547 So.2d 914, 918 (Fla. 1989) (same).

74
to his habeas IAC-shackling claim.

V. HAC INSTRUCTION CLAIM

On appeal, Marquard next argues that his trial counsel was ineffective in

failing to object to the HAC jury instruction on the ground that the instruction was

unconstitutionally vague and in failing to preserve that objection.29 This argument

is misguided, as Marquard’s trial counsel raised the issue at trial and preserved the

issue for appeal.

Indeed, Marquard’s trial counsel objected in writing to the HAC instruction

on the ground that it was unconstitutionally vague. Trial counsel then again

objected at trial, arguing that the HAC instruction was unconstitutionally vague

and failed genuinely to limit the class of cases to which it applied. Trial counsel

also asked that the trial court, if it decided to give the instruction anyway, further to

instruct the jury that any event that occurred after unconsciousness began or death

occurred could not be considered as evidence of the especially wicked, evil,

atrocious, cruel nature of the crime. The trial court denied the objection to the

constitutionality of the instruction but did give the additional limiting instruction

29
On appeal, Marquard also argues that trial counsel failed adequately to challenge the
factual predicate for this aggravating factor because counsel did not properly impeach the
witnesses against Marquard. Marqaurd also argues that newly discovered evidence demonstrates
that Marquard was intoxicated at the time of the murder, and thus did not have the requisite
intent to kill the victim. These issues are outside the scope of the COA granted by this Court,
and thus we do not address them.

75
suggested by Marquard’s trial counsel.

On direct appeal, appellate counsel again challenged the HAC instruction’s

constitutionality. Specifically, in Marquard’s brief under “Point XII:

Constitutionality of Section 921.141, Florida Statutes,” Marquard’s counsel noted

that trial counsel had objected to the standard instructions and that the objections

had been overruled. The HAC instruction was clearly part of the standard

instructions.30 Further, Marquard’s brief on direct appeal stated that “Appellant

again asserts each objection to the Standard Instructions and argues that the trial

court’s ruling denied due process, a fair trial and a reliable sentencing

recommendation” in violation of the Fifth, Sixth, Eighteenth, and Fourteenth

Amendments. In subsection (i), entitled “Heinous, Atrocious, or Cruel,”

Marquard’s counsel again explicitly objected to the HAC instruction as

unconstitutionally vague and arbitrary. The Florida Supreme Court addressed this

issue and concluded that it lacked merit. Marquard v. State, 641 So.2d 54, 58 n.4

(Fla. 1994).

Notwithstanding that both trial and appellate counsel raised the issue of the

constitutionality of the HAC instruction and the Florida Supreme Court denied the

30
We note that in addition to the standard HAC instruction, the trial court did add on
some limiting language at the request of Marquard’s counsel.

76
claim on the merits on direct appeal, the Florida Supreme Court concluded in its

3.850 opinion that the issue was procedurally barred because it should have been

raised on direct appeal. Marquard v. State, 850 So. 2d 417, 423 n.2 (Fla. 2002).

On appeal, Marquard does not challenge this conclusion, but argues instead that

trial counsel was ineffective in failing properly to raise and preserve the HAC-

constitutionality issue. Because both trial and appellate counsel raised the issue

and the Florida courts addressed it on the merits, this ineffective-assistance-of-

counsel argument lacks merit.31

Even if counsel did not adequately object at trial and on direct appeal, the

HAC instruction is not unconstitutional in any event. Thus, Marquard cannot show

that he was prejudiced by any failure by counsel to raise or preserve this HAC-

constitutionality issue. The Supreme Court has held that the words “especially

heinous, atrocious, or cruel,” when used alone as an aggravating factor, are so

vague as to offend the Eighth Amendment. See Maynard v. Cartright, 486 U.S.

356, 365, 108 S. Ct. 1853 (1988); Bradley v. Nagle, 212 F.3d 559, 570 (11th Cir.

2000). “Thus, in order to apply that aggravating factor in a constitutional manner,

31
As noted earlier, Marquard’s 3.850 motion did not raise an HAC-ineffective-assistance-
of-counsel claim. Thus, the district court correctly concluded that the HAC ineffective-
assistance-of-counsel claim is procedurally defaulted. It appears Marquard raised that HAC-
ineffectiveness claim in his § 2254 petition because the Florida Supreme Court in the 3.850
appeal concluded, albeit wrongly, that this HAC-constitutional claim was procedurally barred as
it was not raised on direct appeal.

77
the sentencing court must give a limiting instruction to the jury.” Bradley, 212

F.3d at 570.

Under this Court’s precedent, a “court’s consideration of the ‘especially

heinous, atrocious or cruel’ aggravating factor must satisfy a three part test.”

Lindsey v. Thigpen, 875 F.2d 1509, 1514 (11th Cir. 1989). “First, the appellate

courts of the state must have narrowed the meaning of the words by consistently

limiting their application to a relatively narrow class of cases, so that their use

informs the sentencer of what it must find before it imposes the death penalty.”

Lindsey, 875 F.2d at 1514 (quotation marks and citations omitted). This Court

already has established that “Florida has sufficiently limited its ‘heinous, atrocious,

or cruel’ aggravating circumstance to pass constitutional scrutiny.”32 Scott v.

Singletary, 38 F.3d 1547, 1554 (11th Cir. 1994) (quotation marks and citation

omitted); Scott v. Dugger, 891 F.2d 800, 806 (11th Cir. 1989); see also Bradley,

32
The trial court gave the following HAC instruction to the jury:
“Heinous” means “extremely wicked or shockingly evil.” “Atrocious” means
“outrageously wicked and evil.” “Cruel” means “designed to inflict a high degree
of pain with utter indifference to or enjoyment of the suffering of others.”
The kind of crime intended to be included as heinous, atrocious or cruel is
one accompanied by additional acts that show that the crime was consciousless or
pitiless and was unnecessarily torturous to the victim. If the victim in this case lost
consciousness, any event which occurred after unconsciousness began cannot be
considered as evidence of the especially – especially wicked, evil, atrocious or cruel
nature of the crime. Any event after the death of the victim cannot be considered as
evidence of the especially wicked, evil, atrocious or cruel nature of the crime . . . .

78
212 F.3d at 570-71 (concluding that similar instruction on Alabama HAC statutory

aggravating factor was sufficiently limiting as to be constitutional).33

Second, “the sentencing court must have made either an explicit finding that

the crime was ‘especially heinous, atrocious or cruel’ or an explicit finding that the

crime exhibited the narrowing characteristics” implemented by the state courts.

Lindsey, 875 F.2d at 1514; Bradley, 212 F.3d at 570. Here, the sentencing court

made such explicit findings and detailed the acts supporting the HAC aggravating

factor.34

33
Marquard seems to argue that the trial court was required to instruct the jury that it must
find that the defendant “intended” to inflict unnecessary torture to the victim. Marquard cites no
precedent that would require such an instruction. As discussed, under this Court’s precedent, the
HAC instruction given by the trial court was constitutional.
34
Specifically, the state sentencing court at trial stated as follows:
Chopping and stabbing and attempting to drown a defenseless, unsuspecting 22-year-
old woman with a Bowie knife, a dagger and attempting to cut her head off with a
Gurka head knife is extremely wicked and shockingly evil. Such conduct is designed
to inflict a high degree with indifference to the suffering of Stacey Ann Willets.
Marquard cut her throat, stabbed her in the chest and attempted to drown her
and attempted to behead her. Mr. Marquard threw her to the ground after cutting her
throat and stabbing her. He held her face under water until she stopped breathing.
When she started breathing again, he then held her face under water until she finally
stopped breathing.
Abshire stabbed her at Marquard’s instruction. Then Marquard struck the
back of her neck with his Gurka head knife. Abshire did the same thing with his
Bowie knife.
Stacey did not die instantly. She was breathing when Marquard first tried to
drown her. She started breathing after the first attempt. Marquard again tried to
drown her.
The attack was without provocation, and she vainly sought to defend herself
by struggling. Marquard had one hand over her mouth and a knife in the other hand
cutting her throat and stabbing her in the chest.
Attempting to drown the victim is comparable to strangulation and would

79
 Third, the sentencer’s conclusion as to step two “must not have subverted

the narrowing function of those words by obscuring the boundaries of the class of

cases to which they apply.” Lindsey, 875 F.2d at 1514; Bradley, 212 F.3d at 570-

71. In other words, to reverse under step three, this Court would have to find that

the Florida courts’ determination that Marquard’s conduct was “unnecessarily

torturous to the victim” was clearly erroneous. Bradley, 212 F.3d at 571. Given

the evidence in this case that Marquard stabbed the victim, threw her to the ground,

tried to drown her, and hacked at her neck with a knife, and that she did not die

immediately but tried to struggle, we cannot conclude that the state court’s

determination was clearly erroneous.35

Accordingly, to the extent the substantive HAC issue is properly before this

Court as part of the prejudice prong, we conclude that the Florida Supreme Court’s

decision – that the HAC constitutionality claim lacks merit – was not contrary to,

and did not involve an unreasonable application of, clearly established federal law.

VI. CONCLUSION

For the foregoing reasons, the district court properly denied Marqurad’s 28

involve foreknowledge of death, extreme anxiety or fear.
35
Because we conclude that Marquard’s trial counsel was not ineffective and that there
was no error on this issue, we need not determine whether any such error would be prejudicial or
harmless. We do note, however, that the sentencing court found three other aggravating factors
as well as the HAC factor.

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U.S.C. § 2254 petition, and we affirm that denial.

AFFIRMED.

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