Peterka v. McNeil

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12363 ELEVENTH CIRCUIT
JULY 2, 2008
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00022-CV-SPM

DANIEL JON PETERKA,

Petitioner-Appellant,

versus

WALTER A. MCNEIL,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 2, 2008)

Before EDMONDSON, Chief Judge, ANDERSON and DUBINA, Circuit Judges.

ANDERSON, Circuit Judge:

Daniel Jon Peterka appeals the district court’s denial of his federal habeas

petition in this death penalty case. According to the certificate of appealability that

we issued, the sole question on appeal is whether Peterka’s trial counsel were
ineffective at the penalty phase.1 Peterka argues that his penalty-phase counsel

were ineffective for failing to investigate and present three types of potentially

mitigating evidence: (1) evidence concerning Peterka’s military record; (2)

evidence concerning Peterka’s good prison behavior, including his failure to take

advantage of an escape by his cellmates; and (3) evidence in the nature of his

family relationships and good character. For the reasons explained below, we

affirm the district court’s denial of Peterka’s petition.

I. STANDARD OF REVIEW

This Court reviews de novo the district court’s denial or grant of a federal

habeas petition sought under 28 U.S.C. § 2254. McNair v. Campbell, 416 F.3d

1291, 1297 (11th Cir. 2005). Nonetheless, pursuant to § 2254 as amended by the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we, like the

district court, owe deference to the final state habeas judgment; accordingly, our

review of the state ruling is “greatly circumscribed and highly deferential to the

state courts.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir.

2007) (internal citation and quotation marks omitted). Specifically, we may grant

1
Peterka’s pro se motion to discharge counsel and expand the certificate of appealability
is DENIED.

2
federal habeas relief for a claim adjudicated on the merits in state court only if the

state court adjudication resulted in a decision that was “(1) . . . contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) . . . 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); Stewart, 476 F.3d at 1208.

Furthermore, we presume that the state courts’ factual determinations are correct

unless the petitioner rebuts the presumption of correctness by clear and convincing

evidence. Stewart, 476 F.3d at 1208.

Because Peterka has not challenged the state courts’ determination of the

facts, much less presented clear and convincing evidence to support such a

challenge, the second prong – § 2254(d)(2) – is inapplicable to our analysis. Thus,

to decide whether federal habeas relief is appropriate, we look to the first prong –

§ 2254(d)(1) – under which the Supreme Court has explained that the writ may

issue when either of two conditions are met:

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 this
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. 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

3
 facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000) (opinion

of O’Connor, J., writing for a majority of the Court).

Regarding the “contrary to” clause, the Williams Court noted that “[a] state-

court decision will certainly be contrary to our clearly established precedent if the

state court applies a rule that contradicts the governing law set forth in our cases.”

Id. at 406, 120 S. Ct. at 1519. By way of example, the Court explained that if a

state court applies a “preponderance” standard in a situation where precedent

established that a “reasonable probability” standard governs, such a decision would

be contrary to the Court’s clearly established precedent. Id.

In contrast, if a state court identifies and applies the correct governing rule

from the Supreme Court’s cases, we look to the “unreasonable application” clause

and examine “whether the state court’s application of clearly established federal

law was objectively unreasonable” given the facts of the particular prisoner’s case.

Id. at 407-08, 410, 120 S. Ct. at 1520-21. Notably, however, “an unreasonable

application of federal law is different from an incorrect or erroneous application of

federal law.” Id. at 412, 120 S. Ct. at 1523. Accordingly, “a federal habeas court

may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal

4
law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Id. at 411, 120 S. Ct. at 1522.

II. BACKGROUND

A. The Crime, the Trial, and the Direct Appeal

The parties do not dispute the basic relevant facts regarding Peterka’s

shooting of his roommate, John Russell, or the facts regarding Peterka’s trial and

subsequent direct appeal. As such, we rely on the following version of the case

from the Florida Supreme Court’s opinion denying Peterka postconviction relief:

Briefly stated, Peterka fled Nebraska in February 1989 after being
sentenced to a one-year prison term for theft. He reappeared in
Niceville, Florida, and sometime in April 1989, he moved into a rental
duplex with Russell because Russell was having difficulty paying the
rent. On June 27, 1989, Peterka obtained a duplicate driver’s license
with his picture and Russell’s name. Peterka then cashed a $300 money
order that was payable to Russell and had been mailed to Russell by a
relative. Russell suspected that Peterka had stolen the money order but
told several people that he was not going to confront Peterka, who kept
a gun at the house.
Russell was reported missing by his friend and co-worker, Gary
Johnson, on July 13, 1989. Sheriff’s Deputy Daniel Harkins questioned
Peterka about Russell’s whereabouts, and subsequently ran Peterka’s
name and birth date in the sheriff’s office’s computer, which indicated
that Peterka was a fugitive from Nebraska with an outstanding warrant.
Peterka was arrested early the next morning.
On July 18, 1989, Peterka gave a statement to police in which he
admitted shooting Russell. This Court[, the Florida Supreme Court,]
summarized Peterka’s statement as follows:

5
 Peterka forged Russell’s signature and cashed the money
order. He paid Russell one hundred dollars to use
Russell’s identification. Russell instigated a shoving
match over the money order that escalated into a fight in
the living room of the duplex. Both men reached for
Peterka’s gun, but Peterka got it first. As Russell got up
from the couch, the weapon accidentally fired and the
bullet entered the top of Russell’s head. Russell fell down
on the couch. Peterka wrapped Russell’s body in a rug,
drove to a remote part of Eglin Air Force Base, and buried
the body in a shallow grave.

Peterka subsequently led police to Russell’s body and gave a videotaped
statement similar to the statement he had given earlier. This videotaped
statement was introduced into evidence at trial.
The medical examiner testified that Russell died from a
close-range gunshot wound to the head and that the wound was
consistent with Russell having been shot from behind while in a
reclining position. A firearms expert testified that in his opinion
Peterka’s gun would not accidentally fire and that the gun had two
safety mechanisms that would prevent it from firing unless the trigger
was pulled.
The jury found Peterka guilty of first-degree premeditated murder.
During the penalty phase, Peterka presented the testimony of friends and
family members to establish mitigation. Collectively they testified that
Peterka is a good brother and son, is caring and understanding, is an
excellent, responsible employee, and is always helpful. Peterka also
testified on his own behalf, stating that he feels he has something to
share with society and that if he could bring Russell back he would be
glad to give his life. At the conclusion of the penalty phase, the jury
recommended the death penalty by a vote of eight to four.2 After
weighing the aggravating and mitigating circumstances, the trial court

2
A majority (seven) of the twelve jurors must either recommend life or death at
sentencing, and a tie is construed as a recommendation for life. Bush v. Singletary, 988 F.2d
1082, 1089 (11th Cir. 1993) (“If a majority does not vote for death, the jury’s recommendation is
life; therefore, if the jury’s vote is six to six, the recommendation is one for life.”); see also Fla.
Stat. § 921.141(3) (1990).

6
 followed the jury’s recommendation and sentenced Peterka to death.3

Peterka v. State (Peterka II), 890 So. 2d. 219, 225-26 (Fla. 2004) (internal citations

omitted) (first footnote added).

On direct appeal, the Florida Supreme Court “concluded that the trial court

erred by (1) allowing the State to present evidence of Peterka’s juvenile record

during the penalty phase, (2) failing to merge the hinder law enforcement

aggravator with the avoid arrest aggravator, and (3) finding the pecuniary gain

aggravator.” Id. at 226-27 (citing Peterka v. State (Peterka I), 640 So. 2d 59, 70-71

(Fla. 1994)). However, the supreme court “further concluded that these errors were

harmless and affirmed Peterka’s conviction and sentence.” Id. at 227 (citing

Peterka I, 640 So. 2d at 72-73).

B. Peterka’s State and Federal Collateral Appeals

Following his direct appeal, Peterka filed a motion for postconviction relief

under Florida Rules of Criminal Procedure 3.850 and 3.851, in which he raised

numerous claims, including allegations of ineffective assistance of trial counsel.

3
The trial court found the following five aggravating circumstances: (1) the murder was
committed while Peterka was under a sentence of imprisonment; (2) the murder was committed
for the purpose of avoiding or preventing lawful arrest; (3) the murder was committed for
pecuniary gain; (4) the murder was committed to disrupt or hinder the lawful exercise of a
governmental function or the enforcement of laws; and (5) the murder was committed in a cold,
calculated, and premeditated manner without any pretense of moral or legal justification. In
mitigation, the trial court found the statutory mitigator that Peterka had no significant history of
prior criminal activity but found no nonstatutory mitigation.

7
Peterka specifically argued that his penalty-phase counsel’s performance was

deficient because counsel failed to adequately investigate or present to the jury

certain mitigating evidence, including evidence of Peterka’s military record, of his

good behavior during pretrial incarceration, and of his good character traits. The

state circuit court held an evidentiary hearing on these allegations of ineffective

assistance, and at the hearing, Peterka presented the following relevant evidence.

Peterka’s mother, father, sister, and brother testified regarding Peterka’s

military service, his relationships with family, and his history of good deeds and

nonviolent behavior. In particular, Peterka’s mother testified that she had in her

possession at the time of trial copies of two commendations recognizing Peterka’s

outstanding leadership while in the national guard. She further testified that had

trial counsel told her that the commendations might be useful mitigation evidence,

she would have provided the documents, but that counsel had never asked her to

bring anything other than a photo album.

Peterka also presented the testimony of Allen Atkins, a lieutenant with the

Okaloosa County Jail. Atkins testified regarding Peterka’s good behavior during

his pre-trial incarceration, characterizing Peterka as a “little better” than the normal

inmates who were charged with murder or were considered violent. However,

Atkins could not recall any specific behavior or incident that would make Peterka

8
any different than any other inmate “trying to act properly.”

In addition, Peterka testified in his own behalf about his military record and

his good behavior in jail. Regarding his military record, Peterka specifically noted

that while in the national guard, he had been chosen as a platoon leader and had

received two commendations, including one for leadership. Regarding his prison

record, Peterka highlighted his lack of disciplinary reports while in jail and the fact

that after the jury recommended death, but before the court issued its ultimate

sentence, he remained in his cell for approximately twelve hours after his cellmates

had escaped. Peterka further testified that during a twenty-minute preparation for

his penalty phase, counsel never asked him about his military history or his conduct

during his pretrial incarceration. Peterka did admit, however, that he never told his

attorneys about the escape attempt because he assumed they had heard about it.

In rebuttal, the State presented the testimony of Peterka’s trial counsel,

Assistant Public Defenders Earl D. Loveless and Mark V. Harllee,4 and

Investigator James W. Graham. Because Peterka’s file was destroyed in a flood,

Loveless, Harllee, and Graham were unable to review their notes on Peterka’s case

4
Loveless served as lead attorney, but Harllee, who was relatively inexperienced at the
time, conducted the penalty phase after being second chair during the guilt phase. Loveless,
however, testified that the preparation for each phase was handled equally with both attorneys
involved.

9
and testified based solely on their independent recollections of what occurred at

trial twelve years earlier. All three testified that they were sure they were aware of

Peterka’s military service because the office used a standard questionnaire that

inquired about it, but they were unsure whether they knew of Peterka’s

commendations. Harllee explained that he likely chose not to present the military

service evidence because he feared that the prosecutor would tear apart such

evidence given the fact that Peterka had been discharged as a result of the felony

charges he was facing in Nebraska. Although the Nebraska crimes were unrelated

to Peterka’s military service, and were committed while Peterka was off duty,

Harllee believed that highlighting the military evidence would negatively impact

Peterka’s case if the jury believed that Peterka had besmirched the military.

Harllee further testified that he still would not present the military service evidence

today. Loveless, however, testified that had he known about the commendations,

he would have used that evidence regardless of the circumstances surrounding

Peterka’s discharge. Likewise, Graham testified that if he knew about the

commendations, he likely would have advised the attorneys to use them as

mitigating evidence.

Furthermore, regarding Peterka’s prison record, Harllee stated that it is

something defense counsel “would have investigated,” and Graham believed that

10
he would have spoken to some of the officers at the jail about Peterka’s behavior.

Harllee testified that there is not really a downside to presenting evidence of good

behavior while in jail and that he likely would have presented such evidence if he

had it. Loveless agreed that they would have investigated such prison-record

evidence and that they would have considered using it, but he noted that he had

never had a case where he chose to present such evidence, and he explained that

“he had doubts about how it’s received by a jury.” Finally, when asked why he

presented certain good-character letters only to the judge without submitting them

to the jury and without producing live witnesses, Harllee was not sure why that

decision was made, but he noted that several of the letter writers lived far away

from the site of the trial.

Ultimately, the state trial court denied Peterka’s motion for postconviction

relief, and the Florida Supreme Court affirmed the denial while also denying state

habeas relief. Regarding Peterka’s claim that trial counsel were ineffective for

failing to investigate and present evidence of his military background, the Florida

Supreme Court explained its ruling as follows:

Although Peterka testified at the evidentiary hearing that he was
never asked about his military record, Harlee [sic] testified that he
believed he had been apprised of Peterka’s military service, and both
Loveless and Investigator Graham testified that they knew Peterka had
military experience. Moreover, both Graham and Loveless testified that

11
 the penalty phase form used by the Public Defender’s Office in the
regular course of business in 1989 had a space for military background.
Thus, there is competent, substantial evidence to support the trial court’s
finding that trial counsel asked Peterka about and was aware of
Peterka’s military history.
There is also competent, substantial evidence to support the trial
court’s finding that trial counsel made a reasoned tactical decision not
to present this evidence in mitigation. Harlee [sic] testified that in this
case there was a “negative” side to the military service mitigation
because Peterka’s illegal conduct led to his discharge from the National
Guard. Harlee [sic] believed that because the trial was being held in “a
very heavy military area,” Peterka’s conduct could be viewed as
“besmirching the name of the military.” Fearing that the prosecutor
would “come back and destroy” it if Peterka’s military service was
highlighted, Harlee [sic] decided not to pursue this mitigation. Thus,
Harlee’s [sic] tactical decision not to focus on Peterka’s military service
as a mitigating circumstance was not deficient performance.

Peterka II, 890 So. 2d at 237.

Regarding Peterka’s claim that his trial counsel were ineffective for failing

to uncover and present mitigating evidence of Peterka’s good behavior in jail and

his refusal to participate in an escape, the Florida Supreme Court expressly

declined to rule whether Peterka’s counsel’s performance was deficient in this

regard. Id. at 237. Instead, the court ruled that even if counsel were deficient,

their performance did not result in prejudice. Id. Although the supreme court

chose not rule on the performance prong, the state postconviction trial court had

ruled on this aspect, holding that trial counsel did not render ineffective assistance

for failing to present evidence of model jail conduct in mitigation.

12
 Finally, regarding Peterka’s claim that trial counsel were ineffective for

failing to present evidence of his relationships with his family, his good, helpful

nature, and his nonviolent past, the Florida Supreme Court explained its ruling as

follows:

The record supports the trial court’s finding that much of the
evidence presented at the evidentiary hearing was cumulative to the
evidence presented by counsel at trial. Further, Peterka’s father was
unable to testify at trial because he was having symptoms of a heart
attack during that time and Peterka’s mother testified at the evidentiary
hearing that she would not have wanted Peterka’s siblings exposed to
the trial because of their ages at that time. Thus, trial counsel were not
ineffective for failing to have these witnesses testify.

Id. at 237-38.

After the Florida courts denied him collateral relief, Peterka challenged the

Florida courts’ rulings by seeking a writ of habeas corpus in federal court. The

district court denied Peterka’s federal habeas petition, agreeing with the Florida

courts that Peterka had failed to establish that his counsel were ineffective at the

penalty phase of his trial. This appeal followed. We now affirm the district

court’s denial because we conclude that the Florida Supreme Court’s decision,

insofar as it held that there was no deficient performance, is neither contrary to,

nor an unreasonable application of, clearly established federal law as determined

by the Supreme Court of the United States. As to the one sub-issue with respect to

13
which the Florida Supreme Court pretermitted the performance prong, we

conclude after de novo review that the performance of Peterka’s counsel was not

deficient.

III. DISCUSSION

The Florida courts correctly identified Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984), and its progeny as the relevant Supreme Court

decisions governing Peterka’s claims of ineffective assistance of counsel. To

obtain relief under Strickland, a habeas petitioner must show (1) “that counsel’s

performance was deficient” and (2) “that the deficient performance prejudiced the

defense.” Id. at 687, 104 S. Ct. at 2064. If a petitioner fails to make a showing as

to either performance or prejudice, he is not entitled to relief. Id. at 687, 697, 104

S. Ct. at 2064, 2069. Without reaching the prejudice prong, we sustain the state

courts’ rulings that Peterka’s counsel’s performance was not deficient.

Under the “performance” prong, “a defendant must show that counsel’s

representation fell below an objective standard of reasonableness” considering all

the circumstances. Id. at 687, 104 S. Ct. at 2064-65. To establish such deficient

performance, a defendant bears a substantial burden because courts “must indulge

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

14
reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’ ” Id. at 689, 104 S. Ct. at 2065. Because “[t]here

are countless ways to provide effective assistance in any given case,” our review

of counsel’s performance is “highly deferential” in an attempt to avoid “the

distorting effects of hindsight.” Id.

Applying these principles, the Strickland Court directly addressed claims

similar to those in this case – i.e., claims that counsel failed to adequately

investigate and present mitigating evidence at trial. Id. at 678, 690, 104 S. Ct. at

2059-60, 2066. The Court explained that

strategic 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.

466 U.S. at 690-91, 104 S. Ct. at 2066. Furthermore, the Court stressed that

[t]he reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.
Counsel’s actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied by

15
 the defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that
support a certain potential line of defense are generally known to
counsel because of what the defendant has said, the need for further
investigation may be considerably diminished or eliminated altogether.
And when a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as
unreasonable. In short, inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper assessment
of counsel’s other litigation decisions.

Id. at 691, 104 S. Ct. at 2066.

In Strickland, the Court ultimately ruled that the defendant-respondent

failed to establish deficient performance by his counsel. Id. at 699, 104 S. Ct. at

2071. Although counsel chose not to investigate or present all character and

psychological evidence that was available, these strategic choices were “well

within the range of professionally reasonable judgments” for multiple reasons. Id.

at 699, 104 S. Ct. 2070-71. Among other things, “[t]rial counsel could reasonably

surmise from his conversations with respondent that character and psychological

evidence would be of little help.” Id. at 699, 104 S. Ct. at 2071. In addition,

“[r]estricting testimony on respondent’s character to what had come in at the plea

colloquy ensured that contrary character and psychological evidence and

respondent’s criminal history, which counsel had successfully moved to exclude,

16
would not come in.” Id.

In contrast to the result in Strickland, the Court in Wiggins v. Smith ruled

that defense counsel’s choice to limit their investigation into their client’s

background failed to meet Strickland’s performance standards. Wiggins, 539 U.S.

510, 524-26, 533-34, 123 S. Ct. 2527, 2536-37, 2541-42 (2003). The Wiggins

Court explained that the limited scope of counsel’s investigation was unreasonable

in light of the evidence that counsel had discovered concerning their client’s

extensive childhood abuse. Id. at 525, 123 S. Ct. at 2537. The investigation

constituted deficient performance because “counsel chose to abandon their

investigation at an unreasonable juncture, making a fully informed decision with

respect to sentencing strategy impossible.” Id. at 527-28, 123 S. Ct. at 2538.

However, the Court “emphasize[d] 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.” Id. at 533, 123 S. Ct. at

2541. Furthermore, the Court explicitly distinguished its ruling from earlier cases

in which it had found limited investigations into mitigating evidence to be

reasonable, noting that here “counsel uncovered no evidence in their investigation

to suggest that a mitigation case, in its own right, would have been

counterproductive, or that further investigation would have been fruitless.” Id. at

17
525, 123 S. Ct. at 2537.

A. Evidence of Peterka’s Military Record

Both the lower state collateral court and the Florida Supreme Court found as

a fact that Peterka’s counsel were aware of his military service and that the

decision not to present the military evidence was a reasoned tactical decision.

Peterka’s trial took place in an area with a strong military presence, and Peterka

had received a “general” discharge rather than an “honorable” one as a result of

his Nebraska crimes. Given that the prosecution could use Peterka’s Nebraska

crimes and his resulting discharge to rebut any claims that Peterka had a good

military record, counsel’s decision not to highlight this evidence as potential

mitigation does not fall below an objective standard of reasonableness considering

all the circumstances.

Although counsel failed to uncover Peterka’s commendations, counsel knew

about Peterka’s military service and knew about the circumstances surrounding

Peterka’s discharge. Counsel is not required to investigate every conceivable line

of mitigating evidence, and nothing that Peterka had revealed about his military

service suggested that other facts might outweigh the negative aspects surrounding

his discharge. Like in Strickland, and in contrast to Wiggins, Peterka’s counsel

could reasonably conclude that further investigation would have been fruitless or

18
even counterproductive. Counsel’s decision to limit their investigation into

Peterka’s military record falls within the wide range of professionally competent

assistance. Certainly, the state courts’ rulings with respect to the military evidence

are not contrary to, or an unreasonable application of, Strickland, Wiggins, or any

other U.S. Supreme Court precedent.

B. Evidence of Peterka’s Prison Behavior

With respect to Peterka’s argument that his counsel were ineffective for

failing to investigate and present evidence of Peterka’s good conduct in prison,

including his declining to take advantage of the opportunity to escape with his

cellmates, the Florida Supreme Court pretermitted ruling on the performance

prong and held only that no prejudice resulted from counsel’s decisions.

However, the lower state collateral court held that counsel were not deficient in

this respect. We need not decide whether we owe AEDPA deference to the state

trial court’s legal conclusion in this circumstance because we readily conclude that

even under de novo review, Peterka’s counsel’s performance was not deficient in

regards to the evidence of prison behavior.

Peterka’s counsel’s investigation into his prison record and their decision

not to present such evidence to the jury were reasonable. Harllee, Loveless, and

Graham all testified that they would have looked into Peterka’s prison behavior,

19
and at any rate, evidence of Peterka’s good prison behavior was minimal at best.

Lieutenant Atkins testified that Peterka was a “little better” than the normal person

who had been incarcerated for a violent crime, but Atkins did not testify that

Peterka was a model inmate. The mere fact that Peterka was “trying to act

properly” does not present compelling mitigating evidence that every reasonable

attorney would present to the jury.

As for the alleged escape opportunity, although it would have constituted

mitigating evidence if believed by the jury or sentencing judge, Peterka’s counsel

were never aware of the relevant events, which occurred after the jury had

recommended death but before the judge had imposed a final sentence. Peterka’s

counsel had investigated for the penalty phase prior to trial. Even assuming they

had a duty to explore further mitigation at this mid-trial stage, counsel would have

reasonably expected Peterka to have advised them if something like the escape

opportunity occurred. The Supreme Court made clear in Strickland that the

reasonableness of counsel’s strategic decisions, particularly those concerning the

scope of investigation, often depends critically on information provided by the

defendant. Peterka should have known by this time that this was the kind of

evidence that his attorneys would have been interested in – i.e., the kind of

evidence that could be used as mitigation. After all, Investigator Graham testified

20
that before the penalty phase, Peterka filled out a second questionnaire with a

space for prison conduct. In light of these facts, we conclude that Peterka’s

counsel’s investigation into his prison record and their strategic decisions not to

present such evidence fall within the wide range of reasonable professional

assistance.5 Accordingly, the state courts’ holdings that Peterka failed to establish

ineffective assistance in this respect are neither contrary to, nor an unreasonable

application of, clearly established federal law.

C. Evidence of Peterka’s Good Character

With respect to Peterka’s argument that his counsel were ineffective by

failing to investigate and present additional evidence of his loving family

relationships and good character, we again agree with the state courts that Peterka

failed to establish deficient performance. During the penalty phase, counsel

presented evidence through the testimony of Peterka’s mother that Peterka was a

loved and loving member of his family, that he was kind to others and animals,

and that he was a good person. Counsel introduced a photo album to illustrate

these assertions. Furthermore, two other witnesses testified about Peterka’s loving

5
Alternatively, after careful review of the totality of the evidence that was properly
considered by the Florida Supreme Court, we cannot conclude that the Florida Supreme Court’s
holding on this issue – i.e., that “Peterka has failed to establish the prejudice prong,” Peterka II,
890 So. 2d at 237 – is contrary to, or an unreasonable application of, clearly established federal
law as determined by the Supreme Court of the United States.

21
relationship with his family, his gentle and caring nature, and his good deeds and

charitable acts. Although other witnesses could have provided additional

testimony along the same lines, many lived far from the site of the trial, and

Peterka’s father was too ill and his siblings too young to testify. The decision not

to seek out additional witnesses of Peterka’s good character does not constitute

deficient performance, and the state courts’ conclusions in this respect are neither

contrary to, nor an unreasonable application of, relevant Supreme Court cases.

Accordingly, the district court’s order denying Peterka’s federal habeas

petition is AFFIRMED.

22