[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16259 JUNE 12, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-01103-CV-T-26MSS
JEFFREY LEE ATWATER,
Petitioner-Appellant,
versus
JAMES V. CROSBY, JR., Secretary
Florida Department of Corrections,
CHARLIE CRIST, Attorney General
of the State of Florida,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 12, 2006)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
WILSON, Circuit Judge:
Jeffrey Lee Atwater appeals the district court’s denial of his 28 U.S.C. §
2254 petition challenging his death sentence. We granted a certificate of
appealability to consider the following four claims: (1) the state violated Atwater’s
rights by striking the sole black juror from the venire; (2) trial counsel were
ineffective for conceding guilt on a lesser included offense; (3) trial counsel were
ineffective for failing to present mitigation evidence at the penalty phase of
Atwater’s trial; and (4) trial counsel were ineffective for failing to call Atwater to
testify at trial. After review and oral argument, we affirm Atwater’s death
sentence.
I. Procedural History
On September 7, 1989, Jeffrey Atwater was indicted by a grand jury in
Pinellas County, Florida, for the first degree murder and armed robbery of Kenneth
Smith, his aunt’s fiancé. At trial, he was convicted of first degree murder and
robbery. The jury recommended death by a vote of eleven to one. The trial judge
found three aggravating factors and no statutory mitigating factors, and Atwater
was sentenced to death on June 25, 1990. On direct appeal, the Florida Supreme
Court affirmed Atwater’s convictions and death sentence. Atwater v. State
(Atwater I), 626 So. 2d 1325 (Fla. 1993) (per curiam).
2
Atwater then filed a petition for writ of certiorari in the United States
Supreme Court, which was denied. Atwater v. State, 511 U.S. 1046, 114 S. Ct.
1578, 128 L. Ed. 2d 221 (1994). Pursuant to Florida Rule of Criminal Procedure
3.850, Atwater filed a motion for post-conviction relief in the state trial court,
raising 24 claims. The trial court denied an evidentiary hearing on the penalty
phase issues and granted an evidentiary hearing on some of the guilt phase issues.
On January 5, 1999, the trial court entered an order denying all claims for relief.
Atwater appealed, and the Florida Supreme Court affirmed the trial court’s denial
of post-conviction relief. Atwater v. State (Atwater II), 788 So. 2d 223 (Fla. 2001)
(per curiam).
Atwater then filed a timely original petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in United States District Court. The district court
administratively closed the case from August 23, 2002, until January 13, 2003,
pending decisions in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) (per curiam)
and King v. Moore, 831 So. 2d 143 (Fla. 2002) (per curiam), in light of Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). After re-
opening the case, the district court denied Atwater’s request for an evidentiary
hearing and summarily denied the habeas petition in its entirety by Order dated
October 21, 2003.
3
Atwater then filed a number of post-judgment pleadings in the district court,
including an application for a certificate of appealability and a motion to hold
proceedings in abeyance pending exhaustion because he had filed a successive
motion for post-conviction relief in the trial court asserting claims for relief under
Ring and Nixon v. State, 857 So. 2d 172 (Fla. 2003), rev’d sub nom. Florida v.
Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). The district court
denied all relief on December 17, 2003.
We granted Atwater’s renewed motion to hold proceedings in abeyance on
March 9, 2004. After the state trial court and the Florida Supreme Court denied
Atwater’s motion for post-conviction relief based on Ring and Nixon, we reinstated
the case to active status. We then granted Atwater’s renewed application for a
certificate of appealability with regard to the four issues outlined above.
II. Facts
The following recitation of facts is taken from the Florida Supreme Court’s
opinion affirming Atwater’s conviction and sentence on direct appeal:
On August 11, 1989, Atwater entered the John Knox
Apartments in St. Petersburg, Florida, to see Ken Smith, the victim in
this case. Upon entering the apartment building, Atwater proceeded
to Smith’s room where he remained for about twenty minutes. After
Atwater left, Smith’s body was discovered in the room. Smith was
dead and his money was missing. Atwater told several people that he
had killed Smith.
4
....
. . . [T]he State presented testimony showing that Atwater had
obtained money from Smith on previous occasions, that Smith feared
Atwater, and that, on the day of the murder, Smith told a friend that he
was not going to give Atwater any more money. Further, there was
evidence that Smith had cash in his trousers pocket shortly before the
killing. When the body was found, the pockets were turned out and
the only money found in the room was a few pennies on the floor.
....
The victim in this case was stabbed at least forty times. The
sentencing order recites:
The Court has carefully reviewed the evidence and finds,
in fact, that [the heinous, atrocious, or cruel aggravating]
factor does exist beyond a reasonable doubt. In reaching
this conclusion, the Court has considered evidence that
the Defendant killed his sixty-four (64) year old victim
by inflicting nine (9) stab wounds to the back, eleven
(11) incised wounds to the face, six (6) incised wounds to
the neck, one (1) incised wound to the left ear, one (1)
incised wound to the right shoulder, one (1) incised
wound to the right thumb, nine (9) stab wounds to the
chest area including heart and lungs, two (2) superficial
puncture wounds to the abdomen, a scalp laceration on
the back of the head as a result of blunt trauma, multiple
abrasions and contusions about the body, blunt trauma
resulting from fractured thyroid cartilage, and blunt
trauma to the chest causing multiple rib fractures. The
medical examiner . . . testified that these injuries occurred
while Kenneth Smith was alive, and that death or
unconsciousness would not have occurred until one to
two minutes after the most serious, life threatening
wounds to the heart were inflicted.
. . . The evidence also shows that the stab wounds were more
5
likely inflicted in the order of increasing severity and that the fatal
wounds to the heart were probably inflicted last. Additionally,
Atwater beat his victim prior to or during the stabbing.
Atwater I, 626 So. 2d at 1327-29.
III. Standard of Review
Because Atwater filed his petition after the effective date of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case is
governed by 28 U.S.C. § 2254 as modified by the Act. Lindh v. Murphy, 521 U.S.
320, 326, 117 S. Ct. 2059, 2063, 138 L. Ed. 2d 481 (1997). According to §
2254(e)(1), “a determination of a factual issue made by a State court shall be
presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” As to claims that
the state court adjudicated on the merits, § 2254(d)(1) restricts issuance of habeas
corpus to those that “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.” Section 2254(d)(2) allows a petition for writ
of habeas corpus to be granted when the state court determination “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.”
“A state-court decision will certainly be contrary to our clearly established
6
precedent if the state court applies a rule that contradicts the governing law set
forth in our cases. ” Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519,
146 L. Ed. 2d 389 (2000). “A state-court decision will also be contrary to this
Court’s clearly established precedent if the state court confronts a set of facts that
are materially indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.” Id. at 406, 120 S. Ct. at 1519-20.
“[A]n unreasonable application of federal law is different from an incorrect
or erroneous application of federal law.” Id. at 412, 120 S. Ct. at 1523 (emphasis
omitted). “[C]learly established Federal law . . . refers to the holdings, as opposed
to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Id. “Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the correct governing
legal principle from this Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413, 120 S. Ct. at 1523.
With these principles in mind, we turn to Atwater’s claims.
IV. Batson Claim
At trial, Atwater objected to the state’s use of a peremptory challenge to
remove Antoinette Ellison, the only black member of the jury venire, based on the
Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
7
L. Ed. 2d 69 (1986). The Batson challenge was confined to the following
colloquy:
[D EFENSE C OUNSEL]: Judge, at this time the Defense would
ask the State to state the reason as to why they’re striking the sole
black juror in this panel.
[P ROSECUTION]: I would like to state, Judge, under the most
recent Supreme Court case that a white defendant does not have
standing to challenge – or does not have standing to assert that we are
exercising our challenges in a racially biased method.
T HE C OURT: I’d like to hear, in an abundance of caution, I’d
like to hear a reason.
[P ROSECUTION]: In an abundance of caution, if you would
recall back to her demeanor when I was asking her the questions when
I asked about the death penalty, she very much clammed up to a shell.
Her voice lowered to where she could hardly speak. I think that she
has reservations about a juror – you know, based on being a juror in
this case.
[D EFENSE C OUNSEL]: Judge, I think that she clearly and
unequivocally, I think that the court was right on point when he asked
[the prosecution] to restate his question to make sure the juror
understood the question. I think when [the prosecution] restated it in
a fashion that she was capable of understanding, she did answer the
question.
Again, I would suggest to the Court that the only reason the
State is striking Ms. Ellison is because she is the sole black person on
the jury panel.
T HE C OURT: The Court, in observing that particular juror,
thought that she did respond with difficultly to the questions that were
asked. Based upon the answers she gave and the demeanor, I believe
the State’s peremptory challenge will be well-taken.
8
[D EFENSE C OUNSEL]: Just for the preservation of my record,
we would move for a mistrial based on the fact that the State has
stricken the sole black person on the jury panel and deny [sic] my
client a fair trial by a jury of his peers.
T HE C OURT: Thank you. Any additional challenges of this
panel?
[D EFENSE C OUNSEL]: No, your Honor.
[P ROSECUTION]: No further challenges at this time.
Transcript of Record on Appeal at 851-53, Florida v. Atwater, No. CRC 89-13299.
In his habeas petition, Atwater claims that the trial court’s application of
Batson was unreasonable because other non-black jurors expressed reluctance
regarding the death penalty, while Ellison said that she would not refuse to
consider the death penalty or allow her views about the death penalty to affect her
decision on guilt or innocence. Thus, Atwater asserts that a comparative juror
analysis compels the conclusion that Ellison was struck because of her race. This
comparative juror argument was not made at the time that the Batson challenge
was made at the trial court. Atwater also contends that the state courts failed to
address the third step of Batson in evaluating his claim, and therefore, there is no
determination to which this Court must defer.
The state argues that the district court properly denied relief because Atwater
failed to meet his burden of rebutting the presumption of correctness afforded state
9
court factual findings or establishing that the state court’s legal conclusions were
an unreasonable application of, or contrary to, federal law. The state maintains that
based on the combination of Ellison’s answers and her demeanor, the state courts
did not err in applying Batson. The state further claims that the state courts’
treatment of Atwater’s Batson claim was adequate.
In Batson, the Supreme Court articulated a three-part test to evaluate equal
protection challenges to a prosecutor’s use of peremptory challenges. The initial
burden of establishing a prima facie case of discrimination rests with the
defendant. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. In determining whether the
defendant has met this burden, the court should consider “the totality of relevant
facts” about a prosecutor’s conduct. Id.
After the defendant makes a prima facie showing, the state must come
forward with a race neutral explanation for challenging a black juror that is related
to the particular case to be tried. Id. at 97, 98, 106 S. Ct. at 1723, 1724. The issue
in this step of Batson is the facial validity of the reason given by the prosecutor;
therefore, the reason will be deemed race neutral unless a discriminatory intent
inheres in the prosecutor’s explanation. Hernandez v. New York, 500 U.S. 352,
360, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991) (plurality opinion).
Although there are a number of bases upon which a prosecutor may desire to strike
10
a juror not excusable for cause, at this step, the prosecutor is required to provide a
“‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for
exercising the challenges.” Id. at 98 n.20, 106 S. Ct. at 1724 n.20 (quoting Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096,
67 L. Ed. 2d 207 (1981)). A “legitimate reason” is not required to make sense, be
persuasive or even plausible; it need only be one that does not deny equal
protection. Purkett v. Elem, 514 U.S. 765, 768-69, 115 S. Ct. 1769, 1771, 131 L.
Ed. 2d 834 (1995) (per curiam). Nor is it not necessary that such a reason rise to
the level supporting a challenge for cause, although general assertions, including
assumptions or intuitive judgments that a black juror will be partial to a defendant,
are insufficient. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. Also unacceptable are
mere denials of discriminatory motive or affirmations of good faith in exercising
the strike. Id. at 98, 106 S. Ct. at 1723-24.
Once the prosecutor articulates a race neutral reason for the strike, the third
step of Batson requires the trial court to determine if the defendant has established
purposeful discrimination. Batson, 476 U.S. at 98, 106 S. Ct. at 1724. At this
stage, the persuasiveness of the prosecutor’s justification for his peremptory strike
is the critical issue. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 338-39, 123
S. Ct. 1029, 1040 154 L. Ed. 2d 931 (2003). “[I]mplausible or fantastic
11
justifications” may be found to be pretextual, and in these cases, the question is
whether the prosecutor’s race neutral explanations are credible. Id. at 339, 123 S.
Ct. at 1040 (quoting Purkett, 514 U.S. at 768, 115 S. Ct. at 1769). In assessing the
credibility of the prosecutor’s stated reasons, the court may look to, among other
things, the prosecutor’s demeanor; the reasonableness or the improbability of the
explanations; and whether the reason is grounded in acceptable trial strategy. Id.
Likewise, “[i]f a prosecutor’s proffered reason for striking a black panelist applies
just as well to an otherwise-similar nonblack who is permitted to serve, that is
evidence tending to prove purposeful discrimination to be considered at Batson’s
third step.” Miller-El v. Dretke (Miller-El II), 545 U.S. 231, ___, 125 S. Ct. 2317,
2325, 162 L. Ed. 2d 196 (2005). We emphasize that “the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. at 1771.
Here, the Florida Supreme Court engaged in the following analysis of
Atwater’s Batson claim:
Atwater claims that the trial court erred in allowing the State to
exercise a peremptory challenge removing the sole black person in the
venire. We disagree. Upon Atwater’s objection to the peremptory
challenge, the trial court inquired as to the State’s reasons. The record
reflects that the court’s inquiry was adequate and the record supports
the State’s explanation for exercising the challenge. The court
expressly noted that the prospective juror had difficulty answering the
questions put to her and her demeanor indicated that she was hesitant
12
and uncomfortable regarding the death penalty. This is a valid,
race-neutral reason for exercising a peremptory challenge, and the
court did not abuse its discretion in upholding the challenge.
Atwater I, 626 So. 2d at 1327.
From this discussion, it appears that the Florida Supreme Court improperly
condensed the second and third steps of Batson. As stated above, in the second
step of Batson, a prosecutor need only offer a race neutral reason for the strike, no
matter how silly or implausible. It is not until the third step in the analysis that the
persuasiveness of the prosecutor’s proferred reasons becomes relevant in
determining whether the defendant has established purposeful discrimination. 476
U.S. at 98, 106 S. Ct. at 1724. The Supreme Court reiterated the importance of
addressing each distinct step of Batson in Purkett, 514 U.S. at 768, 115 S. Ct. at
1771 (concluding that the Court of Appeals incorrectly applied Batson by
combining its second and third steps into one), and subsequently in Miller-El II,
545 U.S. at ___, 125 S. Ct. at 2325 (stating that “side-by-side comparisons of some
black venire panelists who were struck and white panelists allowed to serve” are
relevant considerations at the third step of Batson). We strongly caution courts
that the failure to address each of Batson’s steps creates the risk of serious
constitutional error. See Hightower v. Schofield, 365 F.3d 1008, 1041-44 (11th
Cir. 2004) (Wilson, J., concurring), vacated, ___ U.S. ___, 125 S. Ct. 2929, 152 L.
13
Ed. 2d 863 (2005) (remanding for further consideration in light of Miller-El II).
However, given the great deference afforded the determinations of state
courts under § 2254, we cannot reach the conclusion that the trial court or the
Florida Supreme Court unreasonably applied Batson in this case. Here, the trial
court went beyond a mere finding that the state articulated a race neutral reason for
the strike – the trial court engaged in some evaluation of the prosecutor’s reasons
for the strike and determined that the race neutral reason given for striking venire
member Ellison was supportable. Therefore, the third step of the Batson analysis
was touched. The trial judge upheld the peremptory strike after agreeing that
Ellison exhibited some difficulty with her responses to the prosecution question.
The defendant then failed to follow through, or come forward with any concrete
pretext evidence or argument. “When an allegation of pretext is raised, the
defendant bears the burden of convincing the district court that the proferred
reasons are pretextual by introducing evidence of comparability.” United States v.
Alston, 895 F.2d 1362, 1374 (11th Cir. 1990) (Hatchett, J., concurring). No such
effort was made in this case. Although Atwater presented comparative evidence of
discrimination to the post-conviction courts and in his petition for habeas relief,
conspicuously absent from the trial record is some argument or evidence of
comparability at the time that the Batson challenge was made to refute the
14
prosecutor’s reason for the strike. Here, then, “[t]he lesson to claimants of Batson
violations and prosecutors is that comparisons must be made between the black
jurors removed from jury service and the white jurors remaining for service.” Id.
at 1374-75. Without this comparison evidence, Atwater’s Batson claim fails.
V. Ineffective Assistance of Counsel
A. Concession of Guilt on Lesser Included Offense
In his state post-conviction proceedings and on habeas review in district
court, Atwater argued that his counsel was ineffective for telling the jury during
closing argument that the evidence supported a finding of second degree murder.
This claim was the subject of an evidentiary hearing in the state trial court,
although the trial court did not resolve the factual dispute over whether Atwater’s
lawyers discussed this strategy with him. Instead, the trial court found that the
concession of guilt was a “legitimate trial strategy even without the defendant’s
knowledge or consent.” Order Den. Mot. Post-Conviction Relief, Jan. 5, 1999,
citing McNeal v. Wainwright, 722 F.2d 674 (11th Cir. 1984) (per curiam). The
Florida Supreme Court affirmed the denial of the Atwater’s claim, finding that the
trial court properly relied upon and applied McNeal. Atwater II, 788 So. 2d at
230-31.
Atwater asserts that his attorneys failed to discuss trial strategy with him and
15
that their decision to concede guilt on second degree manslaughter deprived him of
the right to hold the prosecution to its burden of proof beyond a reasonable doubt.
In Florida v. Nixon, the Supreme Court stated that an attorney must “consult with
the client regarding important decisions,” including the decision to plead guilty.
543 U.S. at 187, 125 S. Ct. at 560 (internal quotation marks omitted). Therefore,
Atwater asserts that his counsel were required to obtain his consent before
conceding second degree murder in their closing argument, which in effect
constituted a guilty plea. Further, Atwater contends that this case is
distinguishable from McNeal because instead of arguing that the state had not
proven the element of premeditation, his counsel forcefully argued in favor of a
conviction for second degree murder.
The state responds that the Florida Supreme Court was correct in
distinguishing Nixon from the instant case, as the trial strategy that Atwater’s
counsel employed did not amount to a guilty plea but rather was a strategy
intended to save Atwater’s life. See Atwater, 788 So. 2d at 232. Additionally, as
the state courts recognized, Atwater is unable to demonstrate that his counsel were
ineffective because he is unable to satisfy the Strickland standard.
In order to succeed on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient and that this
16
deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 180 L. Ed. 2d 674 (1984). “[T]he question is whether there
is a reasonable probability that, absent the 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.” Id. at 695, 104 S. Ct. at 2069. “[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. at 690-91, 104 S. Ct. at 2066. Given
our constraints under § 2254, we must find that the Florida Supreme Court’s
decision was contrary to, or an unreasonable application of, Strickland in order to
grant Atwater’s petition.
The Florida Supreme Court found that Atwater failed to show either
deficient performance or prejudice. With regard to the issue of whether counsel’s
performance was deficient, it concluded that Atwater’s counsel subjected the
state’s case to “a meaningful adversarial testing,” conducting “meaningful
cross-examination of fifteen of [the state’s twenty] witnesses.” Atwater II, 788 So.
2d at 231. According to the Florida Supreme Court,
17
[a]t no point during the opening statement or during any of the
testimony did defense counsel concede Atwater’s guilt. During the
first part of defense counsel’s closing argument, defense counsel
argued that the State failed to prove robbery and therefore could not
prove felony murder. Defense counsel stated in the first part of
closing arguments that he would address premeditation after the
State's closing argument. The State argued in closing argument that it
had proven robbery and premeditation, and discussed the evidence
presented which included: Atwater had threatened to kill Smith a
week before; Smith was afraid of Atwater and hid from him; on the
night of the murder Atwater signed in on the clerk’s log at Smith's
apartment building; Atwater exited approximately twenty minutes
later and told the desk clerk that nobody answered the door; Atwater
had blood on his shoes and pants that was not from Atwater himself;
and Atwater told his aunt and cousin that he killed Smith and enjoyed
it. In response, then, and in rebuttal closing argument, defense
counsel addressed premeditation and argued that the evidence might
support the lesser offense of second-degree murder, but there was
nothing to support premeditation. In light of the overwhelming
evidence of guilt presented by the State, which we acknowledged in
our opinion on the direct appeal, defense counsel’s argument was
reasonable. . . . [D]efense counsel did subject the State’s case to
meaningful testing, and only after the State’s case was presented and
fully argued did defense counsel resort to making some concession – a
trial strategy intended to save Atwater’s life. Under the
circumstances, this strategy was reasonable.
Id. at 231-32.
Additionally, at the state trial court evidentiary hearing, one of Atwater’s
trial lawyers testified that as an experienced attorney of seventeen years with five
or six capital trials and over a hundred criminal trials, he did not believe Atwater
had a chance at getting an acquittal, and his strategy was to save Atwater’s life.
Given these considerations, we cannot conclude that the Florida Supreme Court
18
unreasonably applied, or reached a decision contrary to, clearly established federal
law. Therefore, Atwater is not entitled to habeas relief on this ground.
B. Failure to Call Atwater to Testify
Atwater also argues that his lawyers’ failure to allow him to take the stand at
trial violated the right of the accused to testify, as recognized in Faretta v.
California, 422 U.S. 806, 820 n.15, 95 S. Ct. 2525, 2533 n.15, 45 L. Ed. 2d 562
(1975). Atwater claims that only a defendant may waive this right regardless of
tactical considerations. United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.
1992) (en banc). He further notes that the post-conviction court acknowledged the
factual dispute over whether Atwater’s attorneys ever told him that he had the right
to “overrule them” and testify but decided the issue on the prejudice prong of
Strickland only. According to Atwater, the state court’s conclusions conflict with
the classification of an accused’s decision to testify as personal to the defendant.
See id.
The state first notes that this claim was found to be procedurally barred by
the district court due to Atwater’s failure to raise the claim in the Florida Supreme
Court, a determination reviewed de novo. Kelley v. Sec’y for Dep’t of Corr., 377
F.3d 1317, 1345 (11th Cir. 2004), cert. denied sub nom. Kelley v. Crosby, ___ U.S.
___, 125 S. Ct. 2462, 162 L. Ed. 2d 906 (2005). Pursuant to state procedural rules,
19
abandonment of an issue results from submission of a brief without argument
thereon in an appeal of an order denying relief after an evidentiary hearing. See,
e.g., Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999) (per curiam). Because
Atwater has not shown cause or prejudice to excuse the default, the state argues, he
is unable to raise his claim now. Even if Atwater could show valid cause, which
the state does not concede, he does not demonstrate actual prejudice in view of the
overwhelming evidence of his guilt of first degree murder. The state alternatively
contends that the state trial court properly found that Atwater was unable to show
prejudice under Strickland.
Regarding the issue of procedural default, Atwater states that on appeal of
post-conviction relief, the facts about whether counsel interfered with the
defendant’s right to testify were raised in connection with the claim about
counsel’s concession of guilt, although the two issues were not formatted as
separate grounds for relief.
The Florida Supreme Court recognized that an evidentiary hearing was held
on the issue of whether trial counsel prevented Atwater from testifying on his own
behalf. Atwater II, 788 So. 2d at 227 n.2. However, Atwater did not raise the
right-to-testify issue in his initial brief on appeal from the denial of his 3.850
motion in the Florida Supreme Court. See id. at 227-28. Although Atwater
20
asserted the issue in his reply brief, according to Florida law, it was too late. See,
e.g., Shere, 742 So. 2d at 217 n.6 (in Florida, an issue raised in an appellate brief
which contains no argument is abandoned); see also Gen. Mortgage Assoc., Inc. v.
Campolo Realty & Mortgage Corp., 678 So. 2d 431, 431 (Fla. Dist. Ct. App. 1996)
(“The fact that [an] issue was raised for the first time in the reply brief alone
precludes our consideration of the matter.”). It is well-settled that “if the petitioner
failed to exhaust state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred . . .[,] there is a procedural default for
purposes of federal habeas . . . .” Coleman v. Thompson, 502 U.S. 722, 735 n.1,
111 S. Ct. 2546, 2557 n.1, 115 L. Ed. 2d 640 (1991). Because Atwater did not
properly exhaust this claim in state court, this issue is defaulted.
This being the case, we may only consider the issue on appeal if the
defendant shows both cause for noncompliance with the state rule and actual
prejudice resulting from the alleged constitutional violation, or “if a constitutional
violation has probably resulted in the conviction of one who is actually innocent.”
Smith v. Murray, 477 U.S. 527, 533, 537, 106 S. Ct. 2661, 2665-66, 2668, 91 L.
Ed. 2d 434 (1986). Here, Atwater has neither alleged nor shown cause and
prejudice or actual innocence in order to excuse his default of the issue. He is
21
therefore barred from raising it now.
In any event, even if Atwater had properly preserved the issue for review,
we cannot say that the state trial court’s conclusion that he failed to meet the
Strickland standard was unreasonable or contrary to federal law. The state trial
court found that Atwater “failed to meet his burden to show how he was prejudiced
by not testifying at his trial.”1 Order Den. Mot. Post-Conviction Relief, Jan. 5,
1999. It also found that “the trial record show[ed] that the defendant’s first-person
profession of innocence, when weighed against the substantial evidence to the
contrary presented by the State, would not have changed the jury’s verdict.” Id.
Considering the overwhelming evidence of Atwater’s guilt, see Atwater II, 788 So.
2d at 231-32, the state trial court’s finding that Atwater is unable to demonstrate
prejudice as required by Strickland is neither an unreasonable application of, nor
contrary to, federal law. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.”). Therefore, this claim lacks merit.
C. Failure to Present Mitigation Evidence
Atwater makes several arguments in support of his contention that his trial
counsel were ineffective for failing to present available mitigation evidence in the
1
The Florida Supreme Court did not address this issue because it was not presented on
appeal from the denial of Atwater’s Rule 3.850 motion to vacate his conviction and sentence.
22
penalty phase of the trial. First, he claims the district court erred in denying
Atwater’s request for an evidentiary hearing. Second, he asserts that his counsel
did not adequately prepare for the penalty phase of his trial. Third, he argues that
his counsel’s penalty phase presentation was prejudicially deficient. Finally, he
contends that his counsel’s failure to investigate and present available mitigation
evidence prejudiced him.
As an initial matter, we address Atwater’s argument that his requests for an
evidentiary hearing on penalty phase ineffectiveness in both the state and federal
courts were improperly denied. Atwater notes that the district court denied the
request on the basis that, contrary to the due diligence requirement of 28 U.S.C. §
2254(e)(2), Atwater failed to apprise the state courts of the proferred testimony of
two expert witnesses. However, according to Atwater, Florida law at that time did
not require that a post-conviction movant allege the identities of the witnesses, the
nature of their testimony, or their availability to testify. Gaskin v. State, 737 So. 2d
509, 514 n.10 (Fla. 1999) (per curiam), receded from by Nelson v. State, 875 So. 2d
579, 582-83 (Fla. 2004). Furthermore, Atwater says that the district court faulted
him for not proffering Dr. Cowardin’s testimony about adult attention deficit
disorder (“ADD”), when the factual substance of the claim was presented and
considered by the Florida Supreme Court even if Dr. Cowardin’s name was not.
23
Therefore, Atwater claims that the district court erred in applying § 2254(e)(2).
The state responds that a district court’s decision to deny an evidentiary
hearing is reviewed for abuse of discretion, and an evidentiary hearing is not
required “unless [a petitioner] can demonstrate that his factual allegations, if
proven, would indicate that the Florida Supreme Court acted contrary to, or
unreasonably applied, clearly established federal law.” Breedlove v. Moore, 279
F.3d 952, 959, 961 (11th Cir. 2002). As Atwater observes, his claim was denied
on due diligence grounds. However, the state argues that the district court also
found that Atwater’s claim failed because he did not meet the prejudice prong of
Strickland and because he failed to demonstrate that the Florida Supreme Court
acted in a way that was contrary to, or unreasonably applied, clearly established
federal law when it rejected Atwater’s ineffective assistance claim.
As the state points out, we review the district court’s denial of an evidentiary
hearing for abuse of discretion. Id. at 959. The AEDPA provides the standards
governing the power of federal courts to order an evidentiary hearing in habeas
cases. Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that –
(A) the claim relies on –
24
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
In this case, Atwater sought an evidentiary hearing regarding this claim at
the state post-conviction court and from the Florida Supreme Court. The state
courts denied his requests and as a result, Atwater was unable to develop a factual
basis for his claim in state court. In light of this fact, § 2254(e)(2) does not
preclude an evidentiary hearing in Atwater’s case. See Breedlove, 279 F.3d at 960.
Even so, “it would still be appropriate to deny [Atwater] an evidentiary
hearing if such a hearing would not assist in the resolution of his claim.” Id.
(citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir.1994)). “[I]t is
well established that a habeas petitioner is entitled to an evidentiary hearing if he or
she alleges facts that, if proved at the hearing, would entitle petitioner to relief.”
Id. (quoting Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir.1992)). Therefore,
an evidentiary hearing is not required unless Atwater can demonstrate that his
factual allegations, if proven, would indicate that the state courts acted contrary to,
25
or unreasonably applied, clearly established federal law when they rejected his
ineffective assistance of counsel claim. See 28 U.S.C. § 2254(d)(1).
In this case, the trial court found that:
[D]efense mitigation witness Dr. Merin, a psychologist, testified to
essentially the same information about defendant’s early life and
family situation as outlined in defendant’s claim. Defense counsel
also presented testimony from Dr. Merin and from three witnesses
regarding defendant’s alcohol use. The State points out that the
defendant does not suggest what other witnesses should have been
called by the defense counsel to testify to mitigation. The Court
adopts the State’s response as to this claim, and finds that defendant
does not meet the performance component of Strickland v.
Washington, 466 U.S. 668 (1984).
Order Den. Am. Mot. To Vacate J. And Sentence In Part and Order Granting
Evidentiary Hr’g In Part, June 29, 1998.
The Florida Supreme Court also addressed the issue and concluded that
“[t]he record shows that the evidence [outlined in Atwater’s claim] was considered
in mitigation, and that the trial court did not find that this nonstatutory mitigation
evidence outweighed the aggravating factors. There is no reasonable probability
that re-presenting virtually the same evidence through other witnesses would have
altered the outcome in any manner.” Atwater II, 788 So. 2d at 234.
We cannot say that these determinations are unreasonable applications of, or
contrary to, federal law. See 28 U.S.C. § 2254(d)(1). Therefore, Atwater is not
entitled to an evidentiary hearing. For the same reasons, the substance of his
26
ineffective assistance of counsel claim likewise fails.
VI. Conclusion
For the foregoing reasons, we find that Atwater’s claims are without merit.
The district court’s denial of his petition for writ of habeas corpus is affirmed.
AFFIRMED.
27