[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 13 , 2009
THOMAS K. KAHN
No. 08-11421 CLERK
________________________
D.C. Docket No. 05-00265-CV-ACC-GJK
DARIUS MARK KIMBROUGH,
Petitioner-Appellant,
versus
SECRETARY, DOC,
FL ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 13, 2009)
Before: EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Darius Mark Kimbrough appeals the denial of his petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254. We granted Kimbrough’s request for a
certificate of appealability on the issue of whether the Florida Supreme Court’s
determination – that it was a reasonable trial tactic for petitioner’s trial counsel not
to present mental health mitigation testimony and evidence at Kimbrough’s penalty
phase – is contrary to or an unreasonable application of clearly established United
States Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d).
I. Background
Kimbrough was convicted of first-degree murder, burglary of a dwelling with
a battery therein, and sexual battery with great force. The facts pertinent to
Kimbrough’s crimes of conviction are recounted in the Florida Supreme Court’s
opinion on direct appeal. Kimbrough v. State, 700 So. 2d 634, 635-36 (Fla. 1997).
The Florida Supreme Court summarized the trial court’s penalty phase findings as
follows:
In the sentencing order, the judge listed three aggravators: prior violent
felony, committed during the course of a felony, and heinous,
atrocious, or cruel (HAC). To support the prior violent felony
aggravator, the judge cited Kimbrough’s prior convictions for both
burglary of a dwelling with battery therein and sexual battery. The
court found that the murder here was committed during sexual battery
or attempt to commit sexual battery, citing DNA evidence and
bruising, as well as evidence that the victim and defendant did not
know each other. HAC was supported by the size of the victim, the
three blows to her head causing fracture by blunt force, evidence of a
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struggle (the room was in disarray), and the amount of blood found
around the room.
The judge considered age as a statutory mitigator (Kimbrough was
nineteen), but rejected it because there was no evidence establishing
that he was immature or impaired. The court considered the following
nonstatutory mitigation: Kimbrough had an unstable childhood,
maternal deprivation, an alcoholic father, a dysfunctional family, and a
talent for singing. The court found that the mitigation did not temper
the aggravators.
Id. at 636.
Kimbrough was subsequently sentenced to death consistent with the jury’s
vote of eleven to one recommending imposition of the death penalty.1 Kimbrough
unsuccessfully appealed his conviction and sentence of death to the Florida
Supreme Court, id., and the United States Supreme Court denied certiorari,
Kimbrough v. Florida, 523 U.S. 1028 (1998).
Kimbrough filed a motion for post-conviction relief under Florida Rule of
Criminal Procedure 3.850, raising numerous claims regarding ineffective assistance
of counsel, the constitutionality of Florida’s death penalty, and the right to a fair
and impartial jury. See Kimbrough v. State, 886 So. 2d 965, 969 n.2. (Fla. 2004).
The state trial court held a hearing pursuant to Huff v. State, 622 So. 2d 982 (Fla.
1
A different jury was empaneled for Kimbrough’s sentencing because three of the jurors
from Kimbrough’s guilt phase read newspaper articles about the case after the conclusion of the
trial.
3
1993),2 and granted an evidentiary hearing on three of Kimbrough’s claims,
including his claim that he received ineffective assistance of counsel to the extent
that his trial counsel did not provide a competent mental health professional to
evaluate him. Id. at 970. After the evidentiary hearing, the state trial court denied
Kimbrough relief on all of his claims brought pursuant to Rule 3.850, which the
Florida Supreme Court affirmed on appeal. Id. at 984. The Florida Supreme Court
also denied Kimbrough’s petition for a writ of habeas corpus. Id.
Kimbrough then filed the instant federal habeas corpus proceeding, which
was denied in its entirety by the district court in Kimbrough v. Crosby, 2008 WL
544867 (M.D. Fla. Feb 26, 2008). We granted Kimbrough’s renewed application
for a certificate of appealability as to the issue of whether the Florida Supreme
Court’s determination that Kimbrough did not receive ineffective assistance of
counsel because his trial counsel failed to present any mental health evidence in the
penalty phase of his trial was contrary to or an unreasonable application of Supreme
Court precedent.
II. Standard of Review
Our review of Kimbrough’s final state habeas petition is governed by the
2
In Huff the Florida Supreme Court held that in state death penalty post-conviction
proceedings, the court must allow the defendant’s attorney the opportunity to appear before the
court “for the purpose of determining whether an evidentiary hearing is required and to hear
legal argument relating to the motion.” 622 So. 2d at 983.
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standards set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996. For any claim adjudicated on the merits in
state court, § 2254(d) allows federal habeas relief only where the state court
adjudication “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). Because the state court adjudicated
Kimbrough’s claim of ineffective assistance of counsel on the merits, we review
whether that decision was “contrary to” or “an unreasonable application” of federal
law.
A decision “contrary to” federal law contradicts the United States Supreme
Court on a settled question of law or holds differently than did that Court on a set of
materially indistinguishable facts – in short, it is a decision “substantially different
from the [Supreme Court’s] relevant precedent . . . .” Williams v. Taylor, 529 U.S.
362, 405 (2000). A decision that unreasonably applies federal law identifies the
correct governing legal principle as articulated by the United States Supreme Court,
but unreasonably applies that principle to the facts of the petitioner’s case,
“unreasonably extends [the] principle . . . to a new context where it should not
5
apply, or unreasonably refuses to extend [it] to a new context where it should
apply.” Id. at 407.
III. Discussion
In this habeas petition, Kimbrough challenges the Florida Supreme Court’s
conclusion that his trial counsel, Patricia Cashman and Kelly Sims, were not
ineffective, but rather made a reasonable strategic decision when deciding not to
present testimony from any mental health professional at the penalty phase of
Kimbrough’s trial. The Florida Supreme Court extensively described the testimony
that was presented at Kimbrough’s state post-conviction evidentiary hearing on this
issue:
Kimbrough was represented at trial by two attorneys, Patricia Cashman
and Kelly Sims. Both Sims and Cashman are very experienced in
capital cases. Cashman testified that Dr. Eric Mings, a forensic
criminal psychologist, was retained to conduct a psychological
evaluation of Kimbrough and was originally listed as a defense
witness. On February 11, 1994, prior to trial, Cashman filed a notice
striking Mings from the witness list. Mings was removed from the list
quickly so that the State could not depose him. Although she could not
recall all of the reasons she had for striking Mings from the witness
list, she stated that one of the reasons she struck Mings was because of
the things Mings said about Kimbrough being a “psychopathic
deviant” and the fact that she thought such testimony would hurt him
in front of the jury. Cashman testified that the decision not to call
Mings was a joint decision, made by her and Sims, and stated that
before making such a decision she would have asked Mings whether
he thought he could be helpful as a witness.
At the hearing, Cashman reviewed a note she wrote while preparing for
6
the Kimbrough trial. The note reflected that Kimbrough denied having
any problems, had relatives in Tennessee, was raised by his stepfather,
and had no history of abuse. The “worst thing that happened to him”
was that his cousin was killed at the age of sixteen. Kimbrough won
talent show trophies for singing and had an intelligence quotient (IQ)
of seventy-six, which was in the fifth percentile on the Wechsler Adult
Intelligence Scale test (WAIS). He had an MMPI (Minnesota
Multiphasic Personality Inventory) which was valid, but defensive.
The note also stated that there was a spike on “scale four, psychopathic
deviant3 endorsing items consistent with family discord, other scales
normal.” She did not recall what exactly Mings told her about the
psychopathic deviate scale.
Cashman had defended a number of cases prosecuted by Jeff Ashton,
the prosecutor in this case, and was familiar with him and his trial
tactics. She stated that Ashton liked to use a spike on scale four of the
MMPI “[t]o make my client look really dangerous and make the jury
scared of him and want to kill him.”
In addition to Mings, Cashman retained Dr. Robert Berland, a forensic
psychologist, to conduct a pretrial evaluation of Kimbrough. Cashman
apparently retained Berland in an attempt to find an expert who might
be more favorable to Kimbrough for mental health mitigation
purposes. Although Berland thought there were mental health issues
which could have been presented at the penalty phase, he thought they
would be difficult to present to the jury. Cashman chose not to put
Berland on the stand because she thought he would testify that
Kimbrough had “hidden craziness.” She was concerned that the
prosecution would portray Kimbrough as faking mental illness and
noted that Berland’s intelligence testing, which gave Kimbrough an IQ
of ninety-four, placed him in the normal range of intelligence.
Cashman was aware that the cutoff for mental retardation was seventy
3
Cashman’s use of the term ‘psychopathic deviant’ in the note was presumably a
reference to a spike on the ‘psychopathic deviate scale,’ in the MMPI. The Florida State Court
acknowledged that Cashman confused the name of the scale with an actual diagnosis that
Kimbrough was a psychopathic deviant. Kimbrough, 886 So. 2d at 971 n.6.
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and that seventy-six reflected a low IQ.
Cashman testified that she always ensured the mental health experts
she retained had adequate background information on her clients. She
recalled that Kimbrough’s family members were not particularly
cooperative in this case.
Kelly Sims, Cashman’s cocounsel, was certain that he had telephone
conversations with Mings prior to the time Cashman wrote the note
that was found in Kimbrough’s file. Sims stated that his practice at the
time was not to write notes that could prove harmful to his client
because he thought they could fall into the wrong hands. Although he
said Cashman was better at taking notes than he was, “she was
specifically never going to put anything down that may hurt her
client.” Sims explained any absence of notes from Cashman is
evidence “that something bad happened because she is a prolific
note-taker.” He did not recall any specific reasons for striking Mings
from the witness list but said, “[I] know we must have talked about it
and I was in agreement with it.” Sims further stated that if he had
thought striking Mings was a mistake, he would have relisted him.
Sims testified that he thought Berland was retained as a second opinion
to try to develop some mental health issues. He did not recall whether
retaining Berland was his idea or Cashman’s. Sims testified that there
was nothing in the public defender file that would tell him why
Berland was not used but stated that the decision would have been
made based on what Berland was going to testify to at trial.
With regard to waiving potential mental health mitigation, Sims
testified that while others may have had input on the decision,
ultimately it was his choice and his decision. He did not remember
discussing with Kimbrough the decision not to present mental health
mitigation. Sims testified that he did not want any record discussion of
the issue and said, “I just did not want to bury any hope for Mark
Kimbrough later down the line. And I think that’s what Ashton was
trying to do. And that’s not my job to help clean up the State’s case.”
Sims stated: “I know that in my relationship with Mr. Kimbrough I had
laid out everything that we did and talked about the pros and cons of it
8
and thought I would make some coherent cohesive argument about
why we had to do A, B, or C and spent hours talking about it.” But,
Sims thought he did not have a very good level of communication with
Kimbrough. When asked about the theme of any mitigation defense,
Sims stated:
I recall that the theme was thread bare, that the main theme was that it
didn’t seem Mark had all that high of an IQ with respect to just dealing
with figuring out problems in his life.
It seemed like he had a lot of people that loved him and a lot of family
that embraced him and that kind of can be contra to finding good
mitigation going because people were kind of, I mean, his family
wanted him and wanted to help him and I guess there was a little bit of,
back when he was a teen, I can recall that some of the family members
saying we wanted him to live with us and they said, no, we want him
to live with us.
I know he was a skilled singer.
He had gifts to share in that field.
But as far as being able to show physical abuse or sexual abuse and
some kind of brain injury or organic brain dysfunction, I don’t recall us
having any of that.
Sims thought that a low IQ was a potential mitigator but noted that
there are plenty of inmates on death row who have been found to have
IQs similar to Kimbrough’s. Moreover, Sims stated that part of his
argument during the guilt phase was that Kimbrough would have been
really dumb to rape and murder a girl in his own apartment complex, to
let another person see him with a ladder, and to then watch the next
morning while all of the crime scene investigators and detectives were
there. Sims worried that if they presented the low IQ evidence, it might
have led the jury to think, “Well, he might be a dope, so he would do
something that would [make it] easy to catch him.”
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Testimony of Prosecutor
The State called Jeffrey Ashton, the prosecutor at Kimbrough’s trial.
Ashton was familiar with Cashman and Sims. Ashton testified that an
elevation on scale four, psychopathic deviate, was the one he hoped for
on an MMPI. He stated: “It is the one which, just by its name, is most
appealing to a prosecutor. Because, when you can argue to a jury that
this man has a high psychopathic deviant [sic] scale, just those words
alone are a wonderful argument for a jury.” The words alone have a
negative connotation. Ashton further stated:
[M]y experience generally is that when you ask for a
definition of what does psychopathic mean, the definition
you get is one of someone, you know, who lacks a
well-developed conscience, you know, does not feel
remorse, guilt, things of that general way. So it’s
something that it’s hard to spin that as positive or
sympathetic in my experience.
Ashton stated that if he had known a scale four would come up, he
would have used experts to characterize Kimbrough as dangerous. He
would have gone into the characteristics of psychopathy, would have
quoted some of the “less favorable descriptions of psychopaths,” and
would have equated psychopathy to antisocial personality disorder. He
also stated he would have questioned expert witnesses about their
knowledge of Kimbrough’s prior criminal acts, both charged and
uncharged, and would have asked about previous known acts of
violence.
As to a potential “remorse” mitigator, Ashton testified that
“[e]xpressions of remorse, when you’re in jail, after you’ve been
caught and convicted, you know, are risk for argument of the
insincerity of the supposed remorse.” He further noted that the remorse
argument opens the door to testimony as to the actions or conduct of
the defendant that are inconsistent with remorse. Questions of
character and the like generally open the door to questions about the
full range of the defendant’s possible misconduct. In this case, it might
have opened the door for evidence that Kimbrough had previously
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been involved in a gang fight.
...
Testimony of Mental Health Experts4
Mings testified that a spike on scale four, psychopathic deviate, is not a
formal DSM diagnosis. He could not recall diagnosing Kimbrough
with antisocial personality disorder, but it was possible that he
discussed antisocial personality with Cashman as a possible diagnosis
for Kimbrough. He stated that scale four of the MMPI measures traits
which are found in persons with antisocial personality disorder but
noted that such traits can also be found in normal people. Mings spent
about eight hours with Kimbrough in testing and then another seven
hours or so scoring the tests, reviewing background materials, and
talking to attorneys. He requested an additional five hours for
background material, and while he had no clear recollection, his
impression was that he did not get much from Kimbrough and wanted
to talk to other people to find out more details.
Dr. Bill Mosman, a forensic psychologist and practicing attorney from
the Miami, Florida, area, testified regarding potential statutory and
nonstatutory mitigators which were not introduced at trial. Mosman
reviewed various materials provided by Berland, reviewed the work of
Dr. Sidney Merin, the State’s mental health expert, reviewed the
sentencing transcript, reviewed school records, and had conversations
with Berland. Mosman did not personally examine Kimbrough prior to
testifying and did not administer any tests to Kimbrough. He reviewed
the defense investigator’s file and recognized that Pizarroz “did
voluminous amounts of work.” From his review of the materials,
Mosman thought that “from a statutory point of view, there were 5
statutory mitigators that were available and well reasonably could have
been argued. From a hyper technical point of view there were three,
but two of those are disjunctive.” As to the potential statutory
mitigators, Mosman stated:
4
The testimony of these experts was presented at the state post-conviction evidentiary
hearing.
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They are a felony was committed while under the
influence of extreme mental disturbance, felony
committed while under the influence of extreme
emotional disturbance, and mental is different than
emotionally, capacity to appreciate the criminality of his
conduct was substantially impaired, capacity to conform
his conduct to the requirements of law was substantially
impaired.
Age of the defendant at the time of the crime clearly,
clearly, multiple severe impairments in that area, these are
the statutory ones.
Mosman testified that his review of the record and applicable case law
revealed some thirty nonstatutory mitigators that could have been
argued to the jury.
...
In rebuttal, the State called Dr. Sidney Merin, a psychologist
specializing in clinical psychology and neuropsychology. Merin
conducted a court-ordered neurological and psychological examination
of Kimbrough. He also reviewed background materials relating to
Kimbrough and the criminal proceedings against him. Merin
interviewed and tested Kimbrough for just over six hours. He
administered an IQ test and testified that Kimbrough had a full scale
IQ of eighty-one, which is in the low average range. Merin thought that
Kimbrough had a learning disability and that his “fund of information”
was low. Merin also administered other tests which placed Kimbrough
in the lower end of the average range. Merin stated: “I would conclude
that he’s probably in the low average range overall.”
Merin testified that tests performed on Kimbrough revealed a
statistically significant elevation in the psychopathic deviate scale. As
to the significance of this result, Merin stated:
What you’re more likely to say is this represents a
significant degree of real rebelliousness in the personality,
a significant degree of superficiality, an inclination not to
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become deeply, emotionally involved with others,
although on the surface they can appear very nice. They
make a good first impression. And after you talk with
them a while, you begin to see what they’re saying
doesn’t fit together, doesn’t seem to-it’s not that it doesn’t
make sense, but it seems to be selfserving. Also found
with people who have conflict with authority, who are
manipulative, who are confidence people, who can act
impulsively, who can defy the rules, who can be
insensitive to the feelings of others, have a lot of difficulty
with empathy. These are people who sometimes have a
history of being under-achievers. Or, again, they may be
impulsive, may have a tendency to blame their family for
whatever occurs to them or blame other people for
whatever occurs to them, although projection on this scale
is not necessarily a prominent feature.
Merin testified that based on the results of all the tests he administered,
he did not find that Kimbrough suffered from a serious emotional or
mental disorder. . . .
Merin testified that he would not have found any statutory mitigating
circumstances in this case. As a single nonstatutory mitigator, Merin
might have found a borderline personality disorder which had its
underpinnings possibly in Kimbrough’s unstable early childhood. He
noted, “that’s a rather mild non-statutory.” Merin did not find any
evidence that Kimbrough suffered from an extreme mental or
emotional disturbance at the time of the crimes and did not find any
evidence that Kimbrough’s capacity to appreciate the criminality of his
conduct at the time of the crime was substantially impaired.
...
Kimbrough, 886 So. 2d at 969-978. (original footnotes omitted).
Based on its review of the evidence presented at the Rule 3.850 post-
conviction hearing, the Florida Supreme Court agreed with the trial court that
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Cashman and Sims’s decision not to present any testimony from Dr. Mings or Dr.
Berland during the penalty phase was a reasonable trial tactic. Id. at 980. In
addition, the Florida Supreme Court concluded that Kimbrough failed to meet his
burden in showing that his trial counsel did not provide sufficient background
material to Dr. Mings and Dr. Berland. Id. at 981. Nor did Kimbrough meet his
burden in presenting evidence to support the existence of possible mitigation
evidence suggested by Kimbrough’s expert, Dr. Mosman. Id.
Ineffective assistance of counsel claims are governed by the standard set forth
by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). “An
ineffective assistance claim has two components: A petitioner must show that
counsel’s performance was deficient, and that the deficiency prejudiced the
defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S.
at 687). A defendant has the burden of establishing deficient performance by
showing that “counsel’s representation ‘fell below an objective standard of
reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). The Supreme Court has
not articulated specific guidelines for appropriate attorney conduct, but rather
instructs that the standard is one of “reasonableness under prevailing professional
norms.” Id. As to claims of ineffective assistance of counsel at the penalty phase of
the trial, “we consider whether counsel reasonably investigated possible mitigating
14
factors and made a reasonable effort to present mitigating evidence to the
sentencing court.” Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006).
We have previously explained that a state court’s determination that a
decision of counsel is “tactical” is a question of fact that we review under a clear
and convincing evidence standard. Gaskin v. Sec’y, Dept. of Corrections, 494 F.3d
997, 1003 (11th Cir. 2007). Moreover, the decision that counsel’s tactical decision
was reasonable, as the Florida Supreme Court concluded in this case, is a question
of law we review de novo. Lawhorn v. Allen, 519 F.3d 1272, 1295 (11th Cir.
2008).
After thorough review of the Florida Supreme Court’s decision and the
evidentiary record in this case, we cannot say that it was contrary to or an
unreasonable application of Supreme Court precedent for the Florida Supreme
Court to conclude that Kimbrough’s trial counsel made a reasonable strategic
decision when deciding not to present mental health evidence at the penalty phase
of Kimbrough’s trial. From what Sims and Cashman recalled, they specifically and
deliberately chose not to have either Dr. Mings or Dr. Berland testify at
Kimbrough’s penalty phase out of a concern that the limited beneficial information
they might have been able to present would have been outweighed by the risk of
opening the door to the admission of more damaging information. Although
15
Cashman apparently misunderstood the significance of Dr. Mings’s explanation of
the psychopathic deviate scale as it related to Kimbrough, the state prosecutor
confirmed that he would have used the spike on this scale to convince the jury that
Kimbrough was dangerous. Cashman, who was familiar with the prosecutor at the
time of the trial, testified she was concerned this would happen. Moreover, Sims
testified that he did not recall that they had any evidence of physical or sexual abuse
nor any evidence of brain injury or organic brain dysfunction that they could have
presented. He also testified that the presentation of Kimbrough’s low IQ in
mitigation would have been counterproductive to his guilt phase argument that
Kimbrough did not commit the crime because he would have been “really dumb” to
rape and murder someone in his own apartment complex and then stand around the
next day watching when law enforcement officials investigated the crime scene.
See e.g., Stevens v. Zant, 968 F.2d 1076, 1083 (11th Cir. 1992) (concluding that
trial counsel was not unreasonable in deciding not to present mental health
testimony at sentencing where counsel believed the potential harm from cross-
examination outweighed any benefits of the expert’s testimony). Because
Kimbrough has not shown that his trial counsel’s performance was deficient, we
need not address whether such performance prejudiced him.
Accordingly, we find no error in the district court’s dismissal of Kimbrough’s
16
petition for a writ of habeas corpus.
AFFIRMED.
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