[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12351 August 3, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00547-CV-J-20HTS
LOUIS B. GASKIN,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 3, 2007)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Louis B. Gaskin (“Gaskin”), a death-sentenced inmate in the Florida prison
system, filed a petition for writ of habeas corpus challenging his state court
convictions for two counts of first degree murder, one count of attempted first
degree murder with a firearm, and two counts of burglary of a dwelling with a
firearm. The district court denied Gaskin’s petition on numerous grounds. We
granted a certificate of appealability on three issues: (1) whether Gaskin was
denied the effective assistance of counsel in the penalty phase of his trial based on
counsel’s failure to investigate and present mitigation evidence and to address
statutory mitigating circumstances in closing argument; (2) whether Gaskin was
denied a fair and impartial jury when the trial court denied his motions to change
venue due to pervasive and prejudicial pretrial publicity; and (3) whether Florida’s
capital sentencing statute is unconstitutional on its face and as applied, and whether
this claim is procedurally defaulted.1 After a thorough review of the record, and
after having the benefit of oral argument, we affirm the district court’s denial.
BACKGROUND
The Florida Supreme Court summarized the factual background in Gaskin’s
direct appeal:
1
Gaskin concedes that his claim regarding the constitutionality of Florida’s capital
sentencing statute is
procedurally defaulted. Accordingly, we affirm the district court’s denial on that issue without
further discussion.
2
The convictions arise from events occurring on the night of
December 20, 1989, when Gaskin drove from Bunnell to Palm Coast
and spotted a light in the house of the victims, Robert and Georgette
Sturmfels. Gaskin parked his car in the woods and, with a loaded gun,
approached the house. Through a window he saw the Sturmfels
sitting in their den. After circling the house a number of times,
Gaskin shot Mr. Sturmfels twice through the window. As Mrs.
Sturmfels rose to leave the room, Gaskin shot her and then shot Mr.
Sturmfels a third time. Mrs. Sturmfels crawled into the hallway, and
Gaskin pursued her around the house until he saw her through the
door and shot her again. Gaskin then pulled out a screen, broke the
window, and entered the home. He fired one more bullet into each of
the Sturmfels' heads and covered the bodies with blankets. Gaskin
then went through the house taking lamps, video cassette recorders,
some cash, and jewelry.
Gaskin then proceeded to the home of Joseph and Mary Rector,
whom he again spied through a window sitting in their den. While
Gaskin cut their phone lines, the Rectors went to bed and turned out
the lights. In an effort to roust Mr. Rector, Gaskin threw a log and
some rocks at the house. When Mr. Rector rose to investigate, Gaskin
shot him from outside the house. The Rectors managed to get to their
car and drive to the hospital in spite of additional shots fired at their
car as they sped away. Gaskin then burglarized the house.
Gaskin’s involvement in the shootings was brought to the
attention of the authorities by Alfonso Golden, cousin of Gaskin’s
girlfriend. The night of the murders, Gaskin had appeared at Golden’s
home and asked to leave some “Christmas presents.” Gaskin told
Golden that he had “jacked” the presents and left the victims “stiff.”
Golden learned of the robberies and murders after watching the news
and called the authorities to report what he knew. The property that
had been left with Golden was subsequently identified as belonging to
the Sturmfels.
Gaskin was arrested on December 30, and a search of Gaskin’s
home produced more of the stolen items. After signing a
rights-waiver form, Gaskin confessed to the crimes and directed the
authorities to further evidence of the crime in a nearby canal.
The jury found Gaskin guilty of two counts of first-degree
murder in the death of Robert Sturmfels (premeditated and felony
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murder); two counts of first-degree murder in the death of Georgette
Sturmfels (premeditated and first-degree murder); one count of armed
robbery of the Sturmfels; one count of burglary of the Sturmfels’
home; one count of attempted first-degree murder of Joseph Rector;
one count of armed robbery of the Rectors; and one count of burglary
of the Rector’s home. The jury found Gaskin not guilty of attempted
first-degree murder of Mary Rector.
During the penalty phase . . . [t]he defense introduced the
testimony of Janet Morris, Gaskin’s cousin, who testified that she and
Gaskin were raised by their great-grandparents, who were very strict,
and that Gaskin never gave anyone any trouble during his formative
years. The jury recommended death for both murders by a vote of
eight to four. In addition to the penalty phase testimony, the judge
was given a certified judgment and sentence for an unrelated burglary,
a copy of Gaskin’s statement, and a copy of a psychiatric report by Dr.
Jack Rotstein to consider in sentencing Gaskin.
Gaskin v. State (Gaskin I), 591 So. 2d 917, 918–19 (Fla. 1991).
Following an unsuccessful direct appeal,2 Gaskin pursued post-conviction
relief in state court pursuant to Fla. R. Crim. P. 3.850. The trial court denied his
petition without conducting an evidentiary hearing. On appeal, the Florida
Supreme Court ordered an evidentiary hearing on Gaskin’s ineffective assistance
of counsel claims, but affirmed on all other issues. Gaskin v. State (Gaskin II), 737
So. 2d 509, 518 (Fla. 1999) (per curiam). On remand, the trial court conducted an
evidentiary hearing and denied relief. The Florida Supreme Court affirmed,
finding that (1) defense counsel’s decision not to present mental health evidence in
2
The Florida Supreme Court affirmed Gaskin’s convictions, with the exception of
vacating one adjudication for first-degree murder for each victim because “each death will
support only one adjudication.” Gaskin I, 591 So.2d at 920.
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mitigation was a reasonable strategic decision; (2) any deficiency in counsel’s
failure to provide the mental health expert with Gaskin’s school record was not
prejudicial; and (3) defense counsel’s penalty phase closing argument did not
amount to ineffective assistance. Gaskin v. State (Gaskin III), 822 So. 2d 1243,
1249–52 (Fla. 2002) (per curiam). Gaskin then filed a petition for writ of habeas
corpus in the federal district court, which denied his petition without holding an
evidentiary hearing.
STANDARDS OF REVIEW
“When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (per
curiam). Because Gaskin’s petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), we, in essence, review
the decisions of the state courts. Pursuant to the AEDPA:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
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the State court proceeding.
28 U.S.C. § 2254(d). Furthermore, a state court’s factual findings are presumed
correct, unless rebutted by the petitioner with clear and convincing evidence. Id. §
2254(e)(1).
Under the contrary to clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Court has on a set of materially indistinguishable
facts. Under the unreasonable application clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Under either standard the appropriate measuring stick is clearly
established federal law, which means the holdings, as opposed to the
dicta, of the Supreme Court’s decisions as of the time of the relevant
state court decision.
Williams v. Allen, 458 F.3d 1233, 1238 (11th Cir. 2006) (quoting Schwab v.
Crosby, 451 F.3d 1308, 1310 (11th Cir. 2006)).
DISCUSSION
I. Ineffective Assistance of Counsel
Gaskin argues that trial counsel’s representation was ineffective during the
penalty phase because he failed to adequately investigate school and medical
records; failed to provide this information to Dr. Krop, who had been retained by
defense counsel as a mental health expert; failed to call Dr. Krop or any other
mental health expert to testify at trial; and failed to mention any statutory
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mitigation evidence in his closing argument.
The clearly established federal law for ineffective assistance of counsel
claims was set forth by the U.S. Supreme Court in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish a claim of
ineffective assistance of counsel, first, “the defendant must show that counsel’s
performance was deficient . . . [which] requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064. Second, the
defendant must show that counsel’s deficient performance prejudiced him. Id.
That is, “[t]he defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. Furthermore, the
Supreme Court held in Strickland:
[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. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
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Id. at 690–91, 104 S. Ct. at 2066.
In this case, the State court found that trial counsel made a strategic decision
not to present Dr. Krop’s findings, and not to present further evidence regarding
Gaskin’s educational history. Counsel purposely withheld information about
Gaskin’s past, including school records, because he had reason to believe that it
would lead to damaging testimony regarding Gaskin’s past violent and criminal
conduct. Gaskin II, 822 So. 2d at 1248. Dr. Krop testified at the 3.850 evidentiary
hearing that he expressly told counsel before trial that he would not be helpful to
the defense because he would be subject to cross examination regarding Gaskin’s
extensive history of criminal conduct, sexual deviancy, and lack of remorse.
We have held that “counsel is not required to present all mitigation evidence,
even if the additional mitigation evidence would not have been incompatible with
counsel’s strategy. Counsel must be permitted to weed out some arguments to
stress others and advocate effectively.” Haliburton v. Sec’y for Dep’t of Corr. 342
F.3d 1233, 1243–1244 (11th Cir. 2003) (internal quotation marks and citations
omitted). Furthermore, a state court’s finding that a decision by counsel was
tactical is a finding of fact. Bolender v. Singletary, 16 F.3d 1547, 1558 n.12 (11th
Cir. 1994). Accordingly, Gaskin has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Upon
8
review of Gaskin’s 3.850 evidentiary hearing, and considering that Gaskin chose
not to present rebuttal evidence at that hearing or in response to the state court’s
findings, we conclude that he has not presented clear and convincing evidence to
rebut the presumption that his counsel’s decisions were tactical. In fact, the
evidence presented at the hearing confirms the state court’s finding that counsel’s
decisions regarding presentation of mitigation evidence were made strategically to
prevent far more damaging evidence from being introduced.
Gaskin also contends that counsel was deficient for failing to adequately
investigate Gaskin’s educational history, and for failing to provide educational
records to Dr. Krop. We have held that when counsel “totally fails to inquire into
the defendant’s past or present behavior or life history” in a capital case, his
conduct is deficient. Housel v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001);
Jackson v. Herring, 42 F.3d 1350, 1367–68 (11th Cir. 1995) (holding that
representation is beneath standards of professional competence where counsel does
not conduct sufficient investigation to formulate an adequate life profile of a
defendant). In this case, however, trial counsel conducted some investigation into
Gaskin’s history, including his educational history. At the evidentiary hearing,
trial counsel recalled that his co-counsel or his investigator had spoken with some
of Gaskin’s teachers.
9
Furthermore, even if counsel was deficient for failing to adequately
investigate, Gaskin cannot meet Strickland’s prejudice prong. Gaskin argues that
had trial counsel provided Dr. Krop with educational records prior to trial, he
would have come to a different conclusion. However, Dr. Krop testified in the
evidentiary hearing that after reviewing Gaskin’s records post-conviction, his
diagnosis remained the same as it was pretrial, with the additional diagnosis of
attention deficit disorder (“ADD”). Gaskin further contends that he was
inaccurately presented as an average student, and that evidence should have been
presented he was a special education student with mental health problems.
However, Dr. Krop testified that the school records confirmed that Gaskin had an
average intellectual ability. Also, the fact remains that further investigation and
further evidence would have opened the door to damaging personal history
evidence. Accordingly, we cannot say that there is a reasonable probability that
additional investigation would have changed trial counsel’s strategy. Thus, there is
not a reasonable probability that the outcome of the case would have been different
but for counsel’s errors.
The state court’s determination that Gaskin’s counsel’s conduct was not
ineffective or prejudicial was not contrary to, or an unreasonable application of
Strickland v. Washington, nor was it an unreasonable application of the facts in
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light of the evidence presented in the state habeas proceeding.
II. Change of Venue Due to Pervasive and Prejudicial Pretrial Publicity
Gaskin argues that he was denied a fair and impartial jury because the trial
court denied his motions to change venue due to pervasive and prejudicial pretrial
publicity. We have previously summarized the standards that apply to this issue:
The trial court may be unable to seat an impartial jury because of
prejudicial pretrial publicity or an inflamed community atmosphere.
In such a case, due process requires the trial court to grant defendant’s
motion for a change of venue. This does not mean, however, that a
defendant is entitled to a change of venue whenever potential jurors
have been exposed to the facts of the case.
It is not required that jurors be totally ignorant of the facts and
issues involved. In these days of swift, widespread and diverse
methods of communication, an important case can be expected to
arouse the interest of the public in the vicinity, and scarcely any of
those best qualified to serve as jurors will not have formed some
impression or opinion as to the merits of the case. This is particularly
true in criminal cases. To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a prospective
juror’s impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.
A defendant is entitled to a change of venue if he can
demonstrate either “actual prejudice” or “presumed prejudice.” To
find the existence of actual prejudice, two basic prerequisites must be
satisfied. First, it must be shown that one or more jurors who decided
the case entertained an opinion, before hearing the evidence adduced
at trial, that the defendant was guilty. Second, these jurors, it must be
determined, could not have laid aside these preformed opinions and
rendered a verdict based on the evidence presented in court. If a
defendant cannot show actual prejudice, then he must meet the
demanding presumed prejudice standard.
11
Prejudice is presumed from pretrial publicity when pretrial
publicity is sufficiently prejudicial and inflammatory and the
prejudicial pretrial publicity saturated the community where the trials
were held. The presumed prejudice principle is rarely applicable, and
is reserved for an extreme situation. Where a petitioner adduces
evidence of inflammatory, prejudicial pretrial publicity that so
pervades or saturates the community as to render virtually impossible
a fair trial by an impartial jury drawn from the community, jury
prejudice is presumed and there is no further duty to establish bias.
Meeks v. Moore, 216 F.3d 951, 960–961 (11th Cir. 2000) (emphasis added) (block
quotations, citations and alterations omitted); see also Coleman v. Kemp, 778 F.2d
1487 (11th Cir. 1985).
Gaskin argues that prejudice should be presumed in this case because of the
widespread dissemination of prejudicial and inflammatory material throughout the
community.3 Gaskin argues that pretrial publicity regarding his case saturated the
“rural” community of Flagler county where the crimes were committed and where
he was tried. The Daytona Beach News-Journal published articles which focused
3
Gaskin does not argue on appeal that there was actual prejudice in this case. In holding
that the trial court had not abused its discretion in denying defendant’s motion to change venue,
the Florida Supreme Court noted that “[a]ll jurors who served affirmatively and unequivocally
stated that they could put aside any prior knowledge and decide the case solely on the evidence
presented at trial. There is nothing in the record that suggests otherwise.” Gaskin I, 591 So. 2d
at 919. Furthermore, the trial judge liberally granted challenges for cause, and gave each
attorney an additional five peremptory challenges. Id. Defense counsel did not even use all the
peremptory challenges available. Id. The Florida Supreme Court concluded that Gaskin did not
demonstrate that he was prejudiced by any knowledge the jurors may have possessed. Id. at 920.
Although the state court did not use the actual/presumed prejudice framework, the state court
made factual findings that clearly indicate no actual prejudice, and that are unrebutted by clear
and convincing evidence.
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on Gaskin’s culpability and on the heinous nature of the crimes. The articles also
connected Gaskin to another murder and contained statements of law enforcement
officials about the case. The trial commenced less than six months after the
murders occurred. Gaskin claims that 92% of potential jurors and 11 of the 12
jurors at trial had read newspaper accounts of the crime.
However, this case is not the type of extreme situation for which we reserve
a finding of presumed prejudice. Gaskin does point to articles published in the
local newspaper that may have been somewhat prejudicial or inflammatory.
However, he does not present strong enough evidence that prejudicial and
inflammatory pretrial publicity saturated the community. See Coleman, 778 F.2d
at 1537 (“[T]he burden placed upon the petitioner to show that pretrial publicity
deprived him of his right to a fair trial before an impartial jury is an extremely
heavy one.”); Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006) (per
curiam); Spivey v. Head, 207 F.3d 1263, 1270 (11th Cir. 2000). Accordingly, the
Florida Supreme Court’s determination that Gaskin’s motion for change of venue
was properly denied was neither “contrary to,” nor “an unreasonable application”
of, United States Supreme Court precedent. See 28 U.S.C. § 2254(d).
CONCLUSION
For the foregoing reasons, we hold that the state court’s adjudication of
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Gaskin’s claims did not result in a decision that was contrary to, or an
unreasonable application of, clearly established Federal law; nor did it result in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court. Accordingly, we affirm the district
court’s denial of Gaskin’s petition.
AFFIRMED.
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