Philmore v. McNeil

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 23, 2009
No. 07-13637 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 06-14249-CV-ASG

LENARD PHILMORE,

Petitioner-Appellant,

versus

WALTER A. MCNEIL,
Secretary, Florida Department
of Corrections,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 23, 2009)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
 Lenard Philmore (“Philmore”), a Florida death row prisoner, appeals the

district court’s denial of habeas corpus relief under 28 U.S.C. § 2254. Philmore

received the death penalty for the 1997 murder of Kazue Perron, whom he

kidnapped and killed in order to use her vehicle for a bank robbery. After careful

consideration of all the evidence and the parties’ arguments, we AFFIRM.

I. BACKGROUND

On 14 November 1997, Philmore carjacked at gunpoint a gold Lexus driven

by Kazue Perron (“Perron”) in Palm Beach, Florida. Philmore v. State, 820 So. 2d

919, 923-24 (Fla. 2002) (per curiam). Philmore and his co-defendant Anthony

Spann (“Spann”) planned to use the Lexus as the getaway vehicle in a bank

robbery. Id. at 923. Spann had previously told Philmore they would have to kill

the driver. Id. Philmore drove with Perron to an isolated area, with Spann

following behind in a Subaru. Id. at 924. En route, Philmore took Perron’s rings

and placed them in the automobile’s armrest. Id. After stopping at a side road,

Philmore ordered Perron to exit the Lexus and walk towards some tall brush. Id.

Perron protested and Philmore shot her once in the head. Id. Philmore disposed of

her dead body in the brush. Id.

Philmore and Spann then drove to a bank in Indiantown. Id. While Spann

waited in his Subaru, Philmore robbed a bank teller of $1100. Id. Afterwards,

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Philmore put on Spann’s shirt and discarded his own tank top by the roadside. Id.

Authorities later recovered Philmore’s tank top, which contained Perron’s blood.

Id. Philmore and Spann concealed the Subaru and returned to Palm Beach County

in the stolen Lexus. Id. Later that day, a West Palm Beach police officer

recognized Spann from an outstanding arrest warrant on an unrelated matter. Id. at

924-25. Spann and Philmore led the officer on a high-speed chase until a tire blew

out on the Lexus. Id. at 925. The two men abandoned the vehicle and fled into an

orange grove. Id. The police captured them and charged them with armed

trespass. Id. Firearms were subsequently recovered from a creek in the orange

grove. Id.

On 15 November 1997, Detective Gary Bach, who was investigating the

Indiantown bank robbery, interviewed Philmore after Philmore agreed to waive his

Miranda1 rights. Id. at 927. Philmore admitted he was in the bank that had been

robbed and he was in the Subaru after the bank robbery. Id. The interview ended

when Philmore stated he wanted to talk with an attorney first and then speak with

Detective Bach again. Id. That same day, Philmore was charged with the bank

robbery and was appointed counsel, John Hetherington. Id. at 927 n.13.

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

3
 Philmore made a series of statements to the police in Hetherington’s

presence from 18 November through 26 November 1997, ultimately confessing to

the bank robbery as well as to Perron’s kidnapping and murder. Id. at 927.

Philmore also talked to the police during two polygraph examinations without

Hetherington being present. Id. Philmore signed a waiver of his Miranda rights

before providing each statement. Id. On 21 November, Philmore showed the

police where he had disposed of Perron’s body. Id. at 925.

On 16 December 1997, Philmore agreed, in Hetherington’s presence, to tell

the grand jury of his involvement in Perron’s abduction and shooting. Id. at 927.

Philmore was indicted that same day for the first-degree murder of Perron,

conspiracy to commit robbery with a deadly weapon, carjacking with a deadly

weapon, kidnapping, robbery with a deadly weapon, and third-degree grand theft.

Hetherington remained Philmore’s counsel until December 1998, when the court

appointed Thomas Garland (“Garland”) and Sherwood Bauer to represent

Philmore.

In January 2000, a jury convicted Philmore on all counts. In accordance

with the jury’s unanimous recommendation of death, the trial court sentenced

Philmore to death for the first-degree murder of Perron; fifteen years of

imprisonment for conspiracy to commit robbery with a deadly weapon; life

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imprisonment for carjacking with a deadly weapon, kidnapping, and robbery with a

deadly weapon; and five years of imprisonment for third-degree grand theft. See

Philmore, 820 So. 2d at 926 n.10. The Florida Supreme Court affirmed Philmore’s

convictions and death sentence on direct appeal. See id. at 940. The Florida

Supreme Court subsequently affirmed the denial of Philmore’s motion for post-

conviction relief under Florida Rule of Criminal Procedure 3.851, and denied his

petition for a writ of habeas corpus. See Philmore v. State, 937 So. 2d 578, 580

(Fla. 2006) (per curiam).

In September 2006, Philmore filed this federal habeas corpus petition

pursuant to 28 U.S.C. § 2254, in which he raised nineteen claims for relief.

Following oral argument, the district court denied relief in July 2007. The district

court granted a certificate of appealability on all issues but Philmore raises only

four claims on appeal: (1) ineffective assistance of counsel by Hetherington; (2)

trial court error in granting a peremptory strike, and ineffective assistance of

counsel by Garland in not challenging the strike; (3) ineffective assistance of

counsel by Garland in not calling Dr. Michael Maher as a witness during the

penalty phase to testify that Philmore suffered from an extreme mental or

emotional disturbance; and (4) trial court error in ignoring the testimony of Dr.

5
Frank Wood on the issue of whether Philmore qualified for the statutory mitigator

of an extreme mental or emotional disturbance.

II. DISCUSSION

When analyzing a district court’s denial of a § 2254 habeas petition, we

review de novo questions of law as well as mixed questions of law and fact. See

Hannon v. Sec’y, Dep’t of Corr., 562 F.3d 1146, 1150 (11th Cir. 2009). In order to

obtain federal habeas relief under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), Philmore

must show that the state court decision adjudicating his claims (1) was contrary to,

or involved an unreasonable application of, clearly established Supreme Court

precedents, or (2) unreasonably determined the facts in light of the evidence

presented in the state courts. See id. (citing 28 U.S.C. § 2254 (d)). To garner relief

under the first prong, the state court’s application of Supreme Court precedent

must have been “objectively unreasonable,” not merely incorrect or erroneous.

Wiggins v. Smith, 539 U.S. 510, 520-521, 123 S. Ct. 2527, 2535 (2003) (quotation

marks and citation omitted). In assessing the second prong, we bear in mind that a

state court’s factual findings are presumed correct and may only be rebutted by

clear and convincing evidence. See Hannon, 562 F.3d at 1150.

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A. Ineffective Assistance of John Hetherington

Philmore contends that Hetherington deprived him of the effective assistance

of counsel prior to his being charged for Perron’s murder. According to Philmore,

Hetherington actually assisted law enforcement in solving the murder case. Before

Hetherington’s appointment, law enforcement knew only that Philmore was

involved in a trespass and the Indiantown bank robbery. Philmore contends that,

without first conducting any independent investigation or securing a concession,

Hetherington foolishly advised Philmore to cooperate with the police and give

statements in counsel’s absence. Hetherington’s actions, Philmore maintains,

ensured Philmore’s murder conviction and death sentence. Consequently,

Philmore asserts that Hetherington’s performance fell not only below the standards

of effective counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984), but also below those set forth in Cronic v. United States, 466 U.S.

648, 104 S. Ct. 2039 (1984).

Philmore first raised a claim of ineffective assistance of counsel against

Hetherington in a pretrial motion to suppress Philmore’s incriminating statements.

See Philmore, 820 So. 2d at 927. Specifically, Philmore contended that

Hetherington had deprived him of his Sixth Amendment right to the effective

assistance of counsel because Hetherington did not protect Philmore’s right to

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remain silent. See Philmore, 820 So. 2d at 927. Additionally, Philmore asserted

that he did not make his statements freely and voluntarily because he believed that

he would not be subject to the death penalty if he gave a full and honest statement.

See id. Following an evidentiary hearing at which Hetherington testified, the trial

court found that Philmore’s statements made in counsel’s presence during

November 1997 were freely and voluntarily given without any promises, threats, or

coercion. See id. However, the trial court granted the motion to suppress with

respect to any statements Philmore made in the polygraph room outside of

Hetherington’s presence. See id. at 928. The trial court also later denied the

motion to suppress in relation to Philmore’s grand jury testimony on 16 December

1997. See id.

In his direct appeal, Philmore argued that the trial court erred in denying the

motion to suppress on grounds that: (1) his statements were not freely and

voluntarily given under the Fifth Amendment, and (2) Hetherington had provided

ineffective assistance of counsel under the Sixth Amendment in allowing him to

make the statements. See id. at 926. The Florida Supreme Court concluded that

Philmore’s Fifth Amendment rights had not been violated. See id. at 928. Not

only had there been no quid pro quo bargain for Philmore’s statements, but

Philmore had knowingly waived his Miranda rights in writing before giving each

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statement. See id. The Florida Supreme Court declined to review Philmore’s

Sixth Amendment claim at the direct appeal stage, however. See id. Instead, the

claim was “denied without prejudice to reraise the claim in a rule 3.850 motion.”

See id. at 928-29.

Philmore renewed his claim of ineffective assistance of counsel against

Hetherington in a rule 3.851 motion for post-conviction relief. Philmore alleged

that Hetherington failed to investigate Philmore’s case before advising him to give

incriminating statements to law enforcement, allowed Philmore to give

incriminating statements despite knowing that Philmore would implicate himself in

Perron’s murder, failed to be present with Philmore during statements given to law

enforcement, and failed to secure a plea agreement before Philmore made his

incriminating statements. Hetherington again testified at an evidentiary hearing on

these claims. After making extensive factual findings concerning counsel’s

performance, the state judge concluded that Hetherington was not ineffective under

the standards of Strickland.

The Florida Supreme Court agreed. See Philmore, 937 So. 2d at 585. The

court recited the Strickland standards for demonstrating ineffective assistance of

counsel before summarizing the evidence as follows:

At the hearing, Hetherington testified at length regarding his decisions
during his representation of Philmore. Although Hetherington could

9
not recall exactly when in the sequence of Philmore’s confessions he
learned of specific pieces of information, Hetherington consistently
testified that his advice to Philmore to cooperate was based on
Philmore’s statements, first that Philmore was not involved in the
abduction and then that Philmore was not the shooter. Hetherington
also testified that while he views information given by defendants
with some skepticism, he believed Philmore because Hetherington had
information that Spann was wanted for other murders. After it
became apparent that Philmore had lied about his lack of involvement
in the abduction, Hetherington admonished Philmore about telling
Hetherington the truth. Hetherington believed that Philmore
understood the importance of being honest and would no longer be
untruthful.

Hetherington also advised Philmore not to speak with law
enforcement officers or submit to polygraph examinations if Philmore
was not being candid about his role in Perron’s murder. Philmore
nonetheless chose to make statements to law enforcement officers.
Philmore presented no evidence to rebut Hetherington’s testimony
that Philmore wanted to speak to law enforcement officers even after
counsel advised him of the risk.

Moreover, Philmore’s first statement to police after Hetherington
began representing him was consistent with what Philmore had told
Hetherington – that he was not involved in Perron’s abduction or
murder. It was Philmore’s spontaneous statement prior to the first
polygraph examination that exposed his deceit. The trial court found
that even if Hetherington had been present at this time, Hetherington
could not have stopped Philmore from admitting that he was present
during the abduction. Hetherington testified that after Philmore’s first
confession about his involvement in the abduction, Hetherington had
to reevaluate his strategy. Hetherington stated that he believed that if
Philmore was not the shooter, Philmore’s best chance to avoid the
death penalty was to present Philmore as a cooperating nonshooter
who played a minor role in the felony murder. Once Philmore
admitted he was the shooter, Hetherington believed that Philmore had
nothing to lose by making additional statements to law enforcement
officers.

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Id. at 584-85. This evidence supported the trial court’s finding that Hetherington

made “‘informed, strategic choices, based on the information that Mr.

Hetherington had at the time, which were substantially influenced by [Philmore’s]

own statements and wishes, which seemed reasonable in consideration of all the

facts and circumstances known to Mr. Hetherington at the time each statement was

made.’” Id. at 585. In a footnote, the Florida Supreme Court added that

“[b]ecause we conclude that Philmore has failed to establish that he received

ineffective assistance of counsel during police questioning, we decline to address

the State’s argument that Philmore’s Sixth Amendment right to counsel for the

murder had not attached at this time.” See id. at 584 n.6.

We agree with the state courts that habeas relief should be denied on this

claim, but for a different reason: Philmore cannot establish a violation of his

constitutional right to the effective assistance of counsel prior to his being charged

for Perron’s murder because his Sixth Amendment right to counsel as to that

offense had not yet attached. Both Strickland and Cronic, upon which Philmore

relies, recognize that the right to the effective assistance of counsel stems from the

Sixth Amendment’s right to the assistance of counsel in all criminal prosecutions.

See Strickland, 466 U.S. at 686, 104 S. Ct. at 2063 (noting that the Sixth

Amendment’s “‘right to counsel is the right to the effective assistance of

11
counsel’”); accord Cronic, 466 U.S. at 654, 104 S. Ct. at 2044. The Sixth

Amendment right is “offense specific” though. McNeil v. Wisconsin, 501 U.S.

171, 175, 111 S. Ct. 2204, 2207 (1991). “It cannot be invoked once for all future

prosecutions, for it does not attach until a prosecution is commenced, that is, at or

after the initiation of adversary judicial criminal proceedings – whether by way of

formal charge, preliminary hearing, indictment, information, or arraignment.” Id.

(quotation marks and citation omitted); see also Rothgery v. Gillespie County,

Tex., ___ U.S. ___, ___, 128 S. Ct. 2578, 2592 (2008) (reaffirming that “a criminal

defendant’s initial appearance before a judicial officer, where he learns the charge

against him and his liberty is subject to restriction, marks the start of adversary

judicial proceedings that trigger attachment of the Sixth Amendment right to

counsel”). This rule enforces the purpose of the Sixth Amendment counsel

guarantee, which is to protect a suspect “after the adverse positions of government

and defendant have solidified with respect to a particular alleged crime.” McNeil,

501 U.S. at 177-78, 501 S. Ct. at 2208-09 (quotation marks and citation omitted).

Accordingly, the Supreme Court held in McNeil that the Sixth Amendment right to

counsel “poses no bar to the admission of the statements” made in connection to

offenses for which the suspect had not been charged, despite the attachment of the

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Sixth Amendment right on unrelated charged offenses. Id. at 176, 501 S. Ct. at

2208.

The McNeil rule applies even in situations where, as here, the charged and

uncharged offenses are factually related. See Texas v. Cobb, 532 U.S. 162, 167-

68, 121 S. Ct. 1335, 1340-41 (2001). The defendant in Cobb was charged only

with burglary at the time he confessed to murdering a woman and her young

daughter during his commission of that burglary. See id. at 165-66, 121 S. Ct. at

1339. The Supreme Court explained that McNeil’s offense-specific definition does

not include an exception for uncharged crimes that are factually related to those

that have actually been charged. See id. at 168, 121 S. Ct. at 1340-41. However,

the Court clarified that “when the Sixth Amendment right to counsel attaches, it

does encompass offenses that, even if not formally charged, would be considered

the same offense under the Blockburger test.” Id. at 173, 121 S. Ct. at 1343.

Blockburger states that “‘where the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each provision requires proof of a

fact which the other does not.’” Id. (quoting Blockburger v. United States, 284

U.S. 299, 304, 52 S. Ct. 180, 182 (1932)). Since burglary and capital murder

required proof of different facts under Texas law, they were not the same offense

13
under Blockburger. Id. at 174, 121 S. Ct. at 1344. Accordingly, the Supreme

Court concluded that “the Sixth Amendment right to counsel did not bar police

from interrogating respondent regarding the murders, and respondent’s confession

was therefore admissible.” Id.

The principles enunciated in McNeil and Cobb dictate the result here.

During the time period that Hetherington’s representation was allegedly deficient,

Philmore had been charged only with armed trespass and the Indiantown bank

robbery. There had been no formal charge, preliminary hearing, indictment,

information, or arraignment against Philmore for his involvement in Perron’s

murder. Under the Blockburger test, the crimes of armed trespass and third-degree

grand theft are different offenses from first-degree murder because they require

proof of different facts. Compare Fla. Stat. Ann. § 810.09(1)(a)1, (2)(c) (1997)

(requiring entry with a firearm or other dangerous weapon onto property as to

which notice against entering was posted or otherwise communicated) with §

812.014(2)(c)1 (requiring the unlawful taking of another’s property valued at $300

or more but less than $5000) and § 782.04(1)(a)1 (requiring a premeditated design

to effect a person’s death). Hetherington’s challenged representation therefore

occurred before Philmore’s Sixth Amendment right to counsel had attached with

respect to Perron’s murder. See Cobb, 532 U.S. at 173, 121 S. Ct. at 1343;

14
McNeil, 501 U.S. at 175, 111 S. Ct. at 2207. Absent a Sixth Amendment right to

counsel, there can be no violation of the Sixth Amendment right to the effective

assistance of counsel. Accordingly, Philmore’s claims against Hetherington must

fail.

Nor can Philmore rely on the right to counsel connected to the Fifth

Amendment’s protection against self-incrimination. Other than a cursory

allegation of a Fifth Amendment deprivation, Philmore makes no argument and

provides no citation of authority as to how this right was violated. Consequently,

Philmore has abandoned this claim.2 See Flanigan’s Enter., Inc. of Ga. v. Fulton

County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (per curiam) (stating that the

failure to “elaborate or provide any citation of authority in support of” an

allegation in a brief results in the waiver of that argument).

Even if Philmore had not waived this claim, we find it lacking in merit. The

Fifth Amendment’s guarantee against self-incrimination includes the prophylactic

right to have counsel present during custodial interrogation. See McNeil, 501 U.S.

at 176, 111 S. Ct. at 2208. “Once a suspect invokes the Miranda right to counsel

for interrogation regarding one offense, he may not be reapproached regarding any

2
For the same reason, Philmore has abandoned his claims that Hetherington’s
representation deprived him of his Fourth, Eighth, and Fourteenth Amendment constitutional
rights.

15
offense unless counsel is present.” Id. at 177, 111 S. Ct. at 2208. Thus, unlike the

Sixth Amendment right to counsel, this rule is “not offense specific.” Id. In

Philmore’s case, once he requested an attorney during his initial interview as to the

bank robbery, Hetherington was appointed as his attorney and remained present

during Philmore’s discussions with law enforcement agents about Perron’s

abduction and murder. Any statements made by Philmore outside of counsel’s

presence during the polygraph examinations were excluded by the trial court. See

Philmore, 820 So. 2d at 928. Accordingly, the Fifth Amendment provides no basis

for habeas relief.

Based on the foregoing, we affirm the denial of habeas relief as to

Philmore’s claims of ineffective assistance of counsel against Hetherington.

B. Batson Violation and Trial Counsel’s Effectiveness in Challenging a
Peremptory Strike

Next, Philmore asserts that the trial court erred in granting the state’s

peremptory strike of a prospective black juror, Tajuana Holt (“Holt”). According

to Philmore, the state failed to articulate a genuine, race-neutral explanation as

required by Batson v. Kentucky, 476 U.S. 79, 97, 106 S. Ct. 1712, 1723 (1986).

Furthermore, Philmore asserts that his trial counsel did not effectively challenge

the strike. Had counsel done so, Philmore contends there is a reasonable

16
probability that Holt could have swayed the entire jury to vote for life

imprisonment.

Holt stated in her jury questionnaire that “I feel that people shouldn’t get the

death penalty. Just let them stay in prison for the rest of their lives.” Philmore,

820 So. 2d at 929. During voir dire, however, Holt stated that the death penalty

may be appropriate in some cases. See id. The prosecutor offered three reasons

for peremptorily striking Holt: (1) Holt’s answers in her questionnaire differed

from her responses during voir dire; (2) Holt’s mother, who was a managing clerk

in the trial judge’s division, had advised the prosecution that it would do better

without her daughter on the jury; and (3) the prosecutor thought Holt was sleeping

throughout voir dire. See id. at 929-30. Based on the variance between Holt’s

answers to the jury questionnaire and her responses during voir dire, the trial court

concluded that the government’s explanation was facially race neutral and

therefore granted the peremptory strike. See id. at 930. Philmore’s counsel,

Garland, objected to the strike but did not renew the objection before the jury was

sworn. See id.

The Florida Supreme Court decided on direct appeal that Philmore’s Batson

claim had been waived because his trial counsel failed to renew his objection to the

peremptory strike before the jury was sworn. See id. The Florida Supreme Court

17
cited several cases where this procedural default rule had been regularly applied

under Florida law. See id. The Florida Supreme Court alternatively ruled that

“even if this claim was not procedurally barred, it has no merit because the State

has advanced a facially race-neutral non-pretextual reason for peremptorily

challenging Holt.” Id. In Philmore’s post-conviction proceedings, the Florida

Supreme Court reiterated that the substantive issue of the strike’s validity was

procedurally barred. See Philmore, 937 So. 2d at 585.

We are precluded from considering Philmore’s Batson claim because “the

last state court rendering a judgment in the case clearly and expressly state[d] that

its judgment rests on a state procedural bar.” Parker v. Sec’y for the Dep’t of

Corr., 331 F.3d 764, 771 (11th Cir. 2003) (quotation marks and citation omitted).

A federal habeas claim may not be reviewed on the merits where a state court

determined, as here, that the petitioner failed to comply with an independent and

adequate state procedural rule that is regularly followed. See Siebert v. Allen, 455

F.3d 1269, 1271 (11th Cir. 2006). We must abide by the Florida Supreme Court’s

decision, even though the court made an alternative merits ruling. See Parker, 331

F.3d at 774-75 (explaining that “an alternative merits holding leaves the procedural

bar in place”).

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 Furthermore, Philmore does not argue that there is any cause or prejudice to

excuse his procedural default. See Siebert, 455 F.3d at 1272. The requisite cause

“ordinarily turns on whether the prisoner can show that some objective factor

external to the defense impeded counsel’s efforts to comply with the State’s

procedural rule.” Id. (quotation marks and citation omitted). In the absence of any

argument or evidence that cause and actual prejudice exists, we conclude that

Philmore fails to satisfy this equitable exception to the procedural bar doctrine.

We therefore turn to the issue of trial counsel’s effectiveness in challenging

the strike. Strickland requires a petitioner to show both that his counsel’s

performance was deficient, and that the deficiency prejudiced his defense. See

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. A deficient performance means

that counsel “made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. An attorney’s

actions need only fall within “the wide range of professionally competent

assistance” to pass constitutional muster. Id. at 690, 104 S. Ct. at 2066. Moreover,

appellate courts should not second-guess counsel’s assistance. Id. at 689, 104 S.

Ct. at 2065. “Even the best criminal defense attorneys would not defend a

particular client in the same way.” Id.

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 To counteract the distorting effects of hindsight, the petitioner bears the

burden of overcoming a strong presumption that the challenged action is sound

trial strategy. Id. That presumption may be rebutted if the petitioner establishes

“that no competent counsel would have taken the action that his counsel did take.”

Haliburton v. Sec’y for the Dep’t of Corr., 342 F.3d 1233, 1243 (11th Cir. 2008)

(quotation marks and citation omitted). In order to establish prejudice, the

petitioner must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. We need not

analyze the prejudice prong if a defendant fails to establish deficient performance,

or vice versa. See Porter v. Att’y Gen., 552 F.3d 1260, 1269 (11th Cir. 2008) (per

curiam).

We agree with the Florida Supreme Court that Philmore cannot establish any

prejudice from his attorney’s performance given its previous alternative holding

that the strike was facially race-neutral and non-pretextual. See Philmore, 937 So.

2d at 585. Aside from the lack of prejudice, we also conclude that counsel was not

deficient. Philmore contends that trial counsel failed to challenge the strike. To

the contrary, Garland objected to the state’s peremptory strike on grounds that it

20
was race-based, and objected to the statement of the prospective juror’s mother as

being hearsay. Philmore argues that his attorney should have determined what

questions the prosecution asked Holt’s mother and whether the state had

questioned family members of prospective white jurors. Such information would

have made little difference, however, because the trial court based its decision on

the prosecution’s first reason for the strike – namely, the differences in Holt’s

answers regarding the death penalty. Accordingly, Philmore has failed to show

that his counsel’s performance fell outside “the wide range of reasonable

professional assistance,” or a reasonable probability that, but for his attorney’s

actions, the result of the proceeding would have been different. Strickland, 466

U.S. at 689, 694, 104 S. Ct. at 2065, 2068. The district court correctly denied

habeas relief on this claim.

C. Trial Counsel’s Effectiveness During The Penalty Phase

Philmore asserts that his counsel was ineffective in failing to call Dr.

Michael Maher as a witness during the penalty phase to testify that Philmore’s

organic brain damage supported the statutory mitigator of an extreme mental or

emotional disturbance. During the guilt phase of the trial, the state had impeached

Philmore’s expert witness, Dr. Robert Berland, based on his use of an outdated

medical test to evaluate Philmore’s brain injury. Philmore contends that because

21
of this impeachment, it was imperative that Garland utilize Dr. Maher as a witness.

If Dr. Maher had testified about this statutory mitigator, Philmore submits the

outcome of the penalty phase would have been different.

Dr. Maher testified at a 1999 deposition and a 2004 state post-conviction

evidentiary hearing. In his deposition, Dr. Maher, a psychologist, stated that

during his interview of Philmore, Philmore “fully and completely” accepted

responsibility for his actions and admitted being a “willing participant” in the

crimes. R1-13, Accordion Folder 8, Exh. C-10, Vol. X, at 1439. Philmore’s

version of the events to Dr. Maher comported with his statements to the police. Dr.

Maher believed these statements were factually accurate and that Philmore “was

engaged in his usual pattern of criminal activity” when the crimes occurred. Id. at

1440.

At the 2004 evidentiary hearing, Dr. Maher testified that a brain scan

showed Philmore had an abnormality in the frontal lobes of his brain which caused

Philmore to act impulsively. Dr. Maher admitted that he did not view Philmore’s

killing of Perron as an entirely impulsive act, however. Additionally, Dr. Maher

testified that although Spann influenced Philmore, Dr. Maher was unable to

conclude that Philmore had acted under the substantial domination of another. If

Dr. Maher had been called at trial, he stated he would have testified that Philmore

22
qualified for two other statutory mitigators: (1) extreme mental or emotional

disturbance, and (2) substantial impairment of the capacity to appreciate the

criminality of his conduct.

The state post-conviction judge found that Garland spoke with Dr. Maher on

several occasions and reviewed Dr. Maher’s deposition and report. After

consulting with co-counsel, Garland decided not to call Dr. Maher as a witness

because he did not believe that Dr. Maher would add anything to Philmore’s case.

The state judge further found that Dr. Maher’s opinion would have conflicted with

two defense experts, Dr. Frank Wood and Dr. Berland. According to Dr. Maher,

Philmore suffered brain damage in his frontal lobe, whereas Dr. Wood testified at

trial that Philmore’s brain abnormality was located towards the back section. In

addition, Dr. Maher would have been unable to support Dr. Berland’s testimony

that Philmore was under the substantial domination of his co-defendant, Spann.

The Florida Supreme Court concluded that Philmore had failed to

demonstrate either deficient performance or prejudice under Strickland. See

Philmore, 937 So. 2d at 586-87. Dr. Maher’s opinions would have partially

contradicted those of the other defense experts, whose credibility had already been

undermined by the state’s expert. Id. at 586. It was therefore reasonable for trial

counsel not to present conflicting expert opinions. See id. Moreover, the Florida

23
Supreme Court determined that the record supported the trial court’s finding that

Garland made a tactical decision not to call Dr. Maher. “Although Garland did not

explain with specificity his reasons for not utilizing Dr. Maher, Garland clearly

considered this alternative and rejected it.” Id. at 587. Besides failing to establish

any deficiency, Philmore also failed to establish any prejudice. See id. Garland

had presented mitigation evidence through two experts and several lay witnesses.

Given that both of those experts’ testimony were impeached by the state, the

Florida Supreme Court reasoned that the state could have successfully challenged

Dr. Maher’s opinions as well. See id. Consequently, the Florida Supreme Court

concluded that trial counsel was not ineffective in this matter. See id.

The state courts reasonably determined the facts from the record and

reasonably applied Strickland in evaluating counsel’s effectiveness. The evidence

establishes that trial counsel investigated the possibility of utilizing Dr. Maher but

ultimately determined that Dr. Maher’s testimony was not necessary. Even though

counsel did not elaborate further on his reasons, Philmore bore the burden of

rebutting the strong presumption that counsel exercised reasonable professional

judgment. See Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir.

2000) (en banc) (“‘[W]here the record is incomplete or unclear about [counsel]’s

actions, we will presume that he did what he should have done, and that he

24
exercised reasonable professional judgment.’”). This presumption of

reasonableness was supported by evidence that Dr. Maher differed on key issues

from the other defense experts. In addition to the inconsistencies noted by the state

courts, Dr. Maher conflicted with Dr. Berland as to whether Philmore had an

impaired capacity to appreciate the criminality of his conduct. Specifically, Dr.

Berland testified at trial that Philmore “could appreciate the criminality of his

conduct” and “knew what he was doing was wrong.” R1-13, Accordion Folder 4,

Exh. A-23, Vol. XXIII, at 2138-39. Dr. Maher believed the opposite, opining that

Philmore’s capacity to appreciate the criminality of his conduct was substantially

impaired. This difference in opinion would have weakened the credibility of both

experts.

Furthermore, Garland was not obligated to use Dr. Maher merely because

Dr. Maher might have bolstered Dr. Berland’s impeached testimony with respect to

the mitigator of an extreme mental or emotional disturbance. Counsel has no

absolute duty to present all mitigating evidence, even if the additional evidence

would have been compatible with counsel’s strategy. See Chandler, 218 F.3d at

1319. “Considering the realities of the courtroom, more is not always better.” Id.

Rather, Garland’s duty at the penalty phase was to investigate possible mitigating

factors and make a reasonable effort to present mitigating evidence. See McClain

25
v. Hall, 552 F.3d 1245, 1250 (11th Cir. 2008). Garland fulfilled that duty here.

Philmore has not shown that counsel’s decision in this matter was constitutionally

deficient.

Nor has Philmore demonstrated any prejudice. To show prejudice,

Philmore must establish a reasonable probability that “absent the errors, the

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

circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at

2069. This is not a situation where trial counsel failed to present any mitigating

evidence. As the Florida Supreme Court found, two experts and several lay

witnesses testified at the penalty phase in support of mitigation. See Philmore, 937

So. 2d at 587. The trial court found several nonstatutory mitigators based in part

on Philmore’s abusive childhood, his history of drug and alcohol abuse, his

cooperation with the state, and his expressed remorse for killing Perron. See

Philmore, 820 So. 2d at 925-26. These mitigating factors were outweighed by five

aggravating circumstances, however, which included that Philmore committed the

capital felony for pecuniary gain and did so in a cold, calculated, and premeditated

manner.3 See id. at 925. Philmore has not demonstrated a reasonable probability

3
The trial court also found the remaining three aggravators: (1) Philmore was previously
convicted of another capital felony or of a felony involving the use or threat of violence to the
person; (2) the capital felony was committed during a kidnapping; and (3) the capital felony was
committed for the purpose of avoiding or preventing a lawful arrest. See Philmore, 820 So. 2d at

26
that the addition of a third expert, who would have offered partially inconsistent

opinions with the other defense experts, would have tilted the scales in favor of a

life sentence.

Accordingly, the state courts reasonably determined that counsel’s decision

not to utilize Dr. Maher during the penalty phase was neither deficient nor

prejudicial.

D. Trial Court Error in Rejecting the Statutory Mitigator of Extreme Mental or
Emotional Disturbance

Philmore contends in his final argument that the trial court ignored Dr. Frank

Wood’s testimony during the penalty phase, which purportedly establishes the

statutory mitigator of an extreme mental or emotional disturbance. Philmore bases

his argument on the sentencing order, which made no mention of Dr. Wood and

focused instead on the state’s impeachment of Dr. Berland. According to

Philmore, the trial court ignored the school records, physical exam, and brain

imaging scan results that Dr. Wood relied upon to establish Philmore’s brain

damage. Philmore submits that the trial court’s failure to consider this evidence

violated Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S. Ct. 869, 876-77 (1982),

in which the Supreme Court held that a sentencing court may not refuse to

consider, as a matter of law, any relevant mitigating evidence. Philmore

925.

27
acknowledges that the Florida Supreme Court denied habeas relief on this claim

because it was not raised on direct appeal, yet he maintains that this was due to

ineffective assistance of appellate counsel.

The Florida Supreme Court found that Philmore’s claim that the trial court

erred in failing to consider Dr. Wood’s testimony was procedurally barred. See

Philmore, 937 So. 2d at 588. Although Philmore’s attorney argued on direct

appeal that the trial court erred in rejecting the statutory mitigator of an extreme

mental or emotional disturbance, appellate counsel did not raise a separate claim

that the trial court erred in failing to consider Dr. Wood’s testimony. See id. Thus,

the claim was procedurally barred because it could have been raised on direct

appeal. See id.

The Florida Supreme Court also rejected Philmore’s attempt to raise the

issue as a claim of ineffective assistance of appellate counsel. See id. The trial

court thoroughly considered whether to apply the statutory mitigator of an extreme

mental or emotional disturbance, and the Florida Supreme Court previously

concluded on direct appeal that the trial court’s rejection of this mitigator was

“supported by competent, substantial evidence.” Id. Philmore’s habeas claim was

“merely an additional argument in support of the claim previously raised on direct

28
appeal.” Id. Accordingly, the Florida Supreme Court concluded that Philmore’s

claim of ineffective assistance of appellate counsel lacked merit. See id.

Florida law bars claims in a state post-conviction proceeding that could have

been raised on direct appeal. See Muhammad v. Sec’y, Dep’t of Corr., 554 F.3d

949, 956-57 (11th Cir. 2009). “[A] habeas petitioner who has failed to meet the

State’s procedural requirements for presenting his federal claims has deprived the

state courts of an opportunity to address those claims in the first instance.”

Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 1591 (2000) (quotation

marks and citation omitted). Accordingly, before a federal habeas court may

consider the merits of a procedurally defaulted claim, a petitioner “must

demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.” Muhammad, 554 F.3d at 957

(quotation marks and citation omitted). An attorney’s constitutional

ineffectiveness in failing to preserve a claim for review in state court may

constitute “cause” to excuse a procedural default. Edwards, 529 U.S. at 451, 120

S. Ct. at 1591; accord Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008)

(“Thus, to determine cause and prejudice, we must ascertain whether Payne has

29
shown ineffective appellate counsel in not timely raising his ineffective-trial-

counsel claims.”).

Here, the Florida Supreme Court correctly determined that Philmore’s

habeas claim was procedurally defaulted because Philmore could have but did not

specifically raise it on direct appeal. See Philmore, 937 So. 2d at 588. To excuse

his procedural default, Philmore asserts that his appellate counsel, Patrick C.

Rastatter, was ineffective in not raising the claim on direct appeal. Claims of

ineffective assistance of appellate counsel are governed by the same standards

applied to trial counsel under Strickland. See Heath v. Jones, 941 F.2d 1126, 1130

(11th Cir. 1991). In assessing an appellate attorney’s performance, we are mindful

that “the Sixth Amendment does not require appellate advocates to raise every non-

frivolous issue.” Id. at 1130-31. Rather, an effective attorney will weed out

weaker arguments, even though they may have merit. See id. at 1131. In order to

establish prejudice, we must first review the merits of the omitted claim. See id. at

1332. Counsel’s performance will be deemed prejudicial if we find that “the

neglected claim would have a reasonable probability of success on appeal.” Id.

The omitted claim in this case was closely related to the claim raised by

Philmore’s appellate counsel on direct appeal. Counsel asserted on direct appeal

that “[t]he trial court erred in failing to find that the capital felony was committed

30
while [Philmore] was under the influence of extreme mental or emotional

disturbance.” R1-13, Accordion Folder 5, Exh. A-31, Initial Brief of Appellant at

91. In support of this argument, appellate counsel recounted Dr. Wood’s review of

Philmore’s brain imaging scan and school records, and Dr. Wood’s opinion that

Philmore’s brain injury caused his abnormal behavior. Appellate counsel then

argued that the sentencing court erroneously dismissed the expert mental health

findings of both Dr. Wood and Dr. Berland in rejecting the mitigating circumstance

of an extreme mental or emotional disturbance. This argument is very similar to

the omitted claim now raised in the instant habeas petition – that the trial court

erroneously ignored Dr. Wood’s testimony in rejecting the mitigating circumstance

of an extreme mental or emotional disturbance. Both claims focus on the same

underlying issue, the applicability of the statutory mitigator of an extreme mental

or emotional disturbance.

In light of its determination on direct appeal that this statutory mitigator did

not apply, the Florida Supreme Court correctly concluded that Philmore did not

receive ineffective assistance of appellate counsel. The omitted claim relies on the

same facts and challenges the identical trial court decision that was affirmed on

direct appeal. Appellate counsel’s failure to challenge that decision under a

different legal theory cannot be considered deficient performance, especially given

31
that counsel raised eleven other enumerations of error in a one-hundred page brief.

Compare Heath, 941 F.2d at 1131 (concluding that appellate counsel in death

penalty case was deficient in raising only one issue in a six-page argument). Nor

can Philmore establish any prejudice from his attorney’s omission since the Florida

Supreme Court already concluded that “the trial court’s rejection of this statutory

mitigator is supported by competent substantial evidence.” Philmore, 820 So. 2d at

937. Accordingly, the Florida Supreme Court reasonably rejected Philmore’s

claim of ineffective assistance of appellate counsel.

As Philmore has failed to show cause and prejudice to excuse his procedural

default, we may not review the merits of his defaulted claim. See Edwards, 529

U.S. at 451, 120 S. Ct. at 1591. No exception to this rule applies here as Philmore

does not assert that our failure to review his claim will result in a fundamental

miscarriage of justice. See id. We therefore affirm the district court’s denial of

habeas relief on this issue.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment

denying habeas relief.

AFFIRMED.

32
TJOFLAT, Circuit Judge, specially concurring:

I agree with the court that John Hetherington was not representing Philmore

under the Sixth Amendment Assistance of Counsel Clause1 at the time of his

allegedly deficient performance. Philmore had not yet been charged with the

offenses for which he was eventually indicted; hence, the Assistance of Counsel

Clause had not come into play.

I write separately for two reasons. First, the reading audience may wonder

how it came about (1) that the Supreme Court of Florida, on direct appeal, treated

Philmore’s claim that his statements to the police and grand jury were the product

of Hetherington’s ineffective assistance of counsel as a claim based on the Sixth

Amendment’s Assistance of Counsel Clause and then invited Philmore to pursue

such a claim on collateral attack,2 and (2) that the district court likewise treated the

1
The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” The Sixth Amendment’s
Assistance of Counsel Clause was made applicable to the states through the Fourteenth
Amendment’s Due Process Clause in Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct.
792, 795-97, 9 L. Ed. 2d 799 (1963).
2
Philmore v. State, 820 So. 2d 919, 928-29 (Fla. 2002) (per curiam), cert. denied, 537
U.S. 895, 123 S. Ct. 179, 154 L. Ed. 2d 162 (2002) (Philmore I). Because ineffective assistance
claims (which are generally brought under the Sixth Amendment) are, with minor exception,
litigated in collateral proceedings, where the salient facts regarding the reasons why counsel
performed as he or she did can be established, the supreme court declined to consider the claim
on direct appeal as part and parcel of Philmore’s pretrial motion to suppress and dismissed the
claim without prejudice to Philmore’s right to raise the claim in a collateral proceeding brought
under Fla. R. Crim. P. 3.850. Id.

33
claim as a viable Sixth Amendment claim by issuing a certificate of appealability,

only to have this court summarily reject the claim for the obvious reason that the

Assistance of Counsel Clause had no application at all. Second, some in the

reading audience may conclude from such treatment that Hetherington’s

performance was immune to a federal constitutional challenge, that is, that

Philmore’s statements could not have been excluded on the constitutional ground

that they were the product of ineffective assistance of counsel. Such a deduction

would be incorrect; Philmore simply failed to raise his challenge in a cognizable

manner.

The truth is that Hetherington’s performance was subject to challenge under

the Fifth Amendment, as the state trial court recognized in ruling on Philmore’s

pretrial motion to suppress the statements at issue. Hetherington had represented

Philmore because Philmore, having been advised of his Miranda3 rights, had asked

for the appointment of counsel at the time of police questioning, and Hetherington

had been appointed for that purpose.4 At the evidentiary hearing on the motion to

3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
As a consequence of his arrest and detention, Philmore had the right to assert his Fifth
Amendment privilege against self-incrimination before the police questioned him. The privilege
included the right to have counsel present during questioning. (In Malloy v. Hogan, the Supreme
Court held that the Fifth Amendment’s Self-Incrimination Clause applies to the states through
the Due Process Clause of the Fourteenth Amendment. 378 U.S. 1, 3, 84 S. Ct. 1489, 1491, 12
L. Ed. 2d 653 (1964).) Under Miranda, if the detained person is indigent, as Philmore was at the
time, the police, i.e., the prosecutorial authority, must provide counsel for him prior to

34
suppress, the trial court understood the Fifth Amendment source of Hetherington’s

appointment. After hearing the relevant testimony, the court found that the quality

of Hetherington’s representation satisfied the Fifth Amendment’s requirement5 and

denied the motion with respect to the statements Philmore made in Hetherington’s

presence,6 but it granted the motion as to the statements Philmore made in the

polygraph setting outside Hetherington’s presence.

I begin my discussion by reviewing briefly the circumstances leading to

Hetherington’s appearance as Philmore’s counsel and comprising his

representation of Philmore. From there, I explore the hearing on Philmore’s

motion to suppress and the trial court’s ruling and explain how Philmore’s

ineffective assistance claim later (and erroneously) became a claim under the Sixth

Amendment’s Assistance of Counsel Clause rather than the Fifth Amendment’s

Self-Incrimination Clause. Finally, I describe the ways in which Hetherington’s

questioning. Miranda, 384 U.S. at 472-74, 86 S. Ct. at 1626-28. Philmore exercised that right
during the police’s questioning of him about the armed bank robbery, and Hetherington was
appointed to represent him.
5
My reading of the transcript of the evidentiary hearing on Philmore’s motion to
suppress is that the court used the Sixth Amendment standard for evaluating effective assistance
of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), in assessing the quality of Hetherington’s performance under the Fifth Amendment.
6
The court, in a later ruling, denied the motion to suppress the statements Philmore
made before the grand jury (out of Hetherington’s presence).

35
performance properly could have been, although in this case was not, challenged

on federal habeas review.

I.

Defendant Philmore was arrested by the Martin County Sheriff’s Office on

November 14, 1997 for armed trespass on posted land. During a police

interrogation in the early morning hours of November 15, Philmore also confessed

to participating in an armed bank robbery and, then, invoked his right to counsel

under the Fifth and Fourteenth Amendments.7 At that point, the police properly

suspended the interrogation and, that same day, provided John Hetherington, an

assistant public defender, to represent Philmore during the balance of the police

investigation. No court ever appointed Hetherington; he represented Philmore as a

volunteer at the request of the police following Philmore’s invocation of his Fifth

Amendment rights. Indeed, at the time of Hetherington’s entry into the matter, no

case was pending, or other formal proceeding had taken place, against Philmore.

7
In state criminal proceedings, as here, a defendant’s right against self-incrimination,
which includes and is protected by the right to counsel during police interrogation, is rooted in
the Fifth Amendment, as incorporated and made applicable to the states by the Fourteenth
Amendment. Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 1491, 12 L. Ed. 2d 653 (1964)
(incorporating the Fifth Amendment right against self-incrimination against the states through
the Fourteenth Amendment); see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602,
1612, 16 L. Ed. 2d 694 (1966) (the right against self-incrimination includes the right to the
presence of an attorney during interrogation). As a technical matter, then, this right is available
pursuant to the Fourteenth Amendment for state defendants. For simplicity, however, I will refer
to this incorporated cluster of rights as the defendant’s rights under the Fifth Amendment.

36
 Almost immediately following the provision of Hetherington to serve as

Philmore’s Fifth Amendment counsel, attorney and client began to discuss the

abduction and likely murder of Kazue Perron. Philmore insisted to Hetherington

that he had no knowledge concerning an abduction or murder of Perron, and, based

on that representation, the bank robbery to which Philmore had already admitted,

and other serious charges Philmore was facing in another county, Hetherington

decided that Philmore’s best option was to cooperate with police. Thus,

Hetherington allowed the police to interview Philmore again on November 18.

At the November 18, 1997 interview, the police questioned Philmore about

the Perron abduction and murder. Consistent with his conversations with his

attorney, Philmore denied any knowledge. Seeking to confirm the veracity of this

statement, the police asked Philmore to submit to a polygraph examination. After

receiving assurances from his client that he was telling the truth, and warning his

client that there would be serious consequences if he were not telling the truth,

Hetherington agreed to present Philmore for the examination, which went forward

on November 20. Pursuant to the local polygraph protocol, Hetherington was not

permitted in the room while the police examined his client. Nevertheless, when

Philmore’s story began to change during that first polygraph examination, the

detective administering the test ceased his questioning and notified Hetherington

37
that there was a problem. Apparently, Philmore was now willing to acknowledge

that he was present for and had knowledge of Perron’s abduction and murder, but

he maintained that he was not the triggerman directly responsible for her death.

After further consultation, convinced that Philmore was now telling the truth

and discerning that Philmore’s best strategy was to position himself as a

cooperating non-shooter, Hetherington next agreed to permit a second police

interview with Philmore, on November 21. At that interrogation, Philmore

admitted to being present for the abduction and murder, maintained that he was not

the shooter, and agreed to help the police locate Perron’s body. In order to confirm

Philmore’s latest story, the police, with Hetherington’s consent, subjected

Philmore to a second polygraph examination on November 23, again outside of

Hetherington’s presence. Hetherington advised his client not to continue

cooperating, and to make no further statements, if he was, in fact, the shooter. For

a second time, however, Philmore failed the polygraph examination: it was now

clear that Philmore was the shooter.

Now backed into a corner due to his client’s lack of candor, Hetherington

came to the conclusion that, if Philmore was the shooter, he might as well be a

cooperating shooter if he were to have any hope for prosecutorial leniency.

Accordingly, on November 26, 1997, he permitted the police to interview Philmore

38
for a third time. On this occasion, Philmore gave a full confession to the abduction

and murder. Furthermore, Philmore agreed, with Hetherington’s consent, to testify

before the grand jury on December 16, 1997, about his role in the crimes.

That same day, the grand jury indicted Philmore for first-degree murder,

conspiracy to commit bank robbery with a deadly weapon, carjacking with a

deadly weapon, kidnapping, robbery with a deadly weapon, and third degree grand

theft (i.e., the bank robbery). This December 16, 1997 indictment marked the first

time that Philmore was formally charged with any crime stemming from the events

of November 14, 1997. Further, although Philmore was arrested under a capias

pursuant to the indictment on December 17, he was not immediately arraigned or

even brought before a judge on these charges. Thus, to the extent Hetherington

remained Philmore’s attorney after the investigation and indictment, he continued

to do so as a volunteer; he was never appointed.8 Instead, the case against

Philmore essentially remained dormant for a year, until the trial court, in December

1998, granted Hetherington’s motion to determine status of attorney, removed

Hetherington from the case, and appointed Thomas Garland and Sherwood Bauer

as special public defenders to serve as Philmore’s trial counsel.

8
In fact, Hetherington could not have been appointed Philmore’s post-indictment
counsel pursuant to the Sixth Amendment because, at the time of his indictment and arrest,
Philmore refused to complete an application for the appointment of a public defender, which
would have included the showing of indigency prerequisite to such an appointment.

39
 II.

In August 1999, Philmore’s trial counsel filed a motion to suppress

Philmore’s pre-indictment statements to the police and any evidence obtained as a

result of the statements (including Perron’s body). The articulated basis of the

motion was that Hetherington provided ineffective assistance of counsel in

violation of the Sixth Amendment and Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Additionally, Philmore’s counsel argued

that the de facto denial of counsel during the investigation rendered Philmore’s

incriminating statements not freely and voluntarily given under the Fifth and Sixth

Amendments.

In October 1999, the trial court held a two-day evidentiary hearing on

Philmore’s motion to suppress. Although Philmore’s trial counsel framed their

suppression-due-to-ineffective-assistance argument in terms of Strickland and the

Sixth Amendment, the trial court, ruling from the bench, correctly saw the

argument for the Fifth Amendment claim 9 it actually was:

The Court views the motion as going to whether or not the statements
were given freely and voluntarily and whether the Defendant was

9
I have no doubt that the Fifth and Fourteenth Amendment right to counsel during
police interrogation, just like the Sixth Amendment right to counsel during adversary criminal
proceedings, implies a right to the effective assistance of counsel. See Powell v. Alabama, 287
U.S. 45, 65, 53 S. Ct. 55, 71, 77 L. Ed. 158 (1932) (“the failure of the trial court to make an
effective appointment of counsel was likewise a denial of due process within the meaning of the
Fourteenth Amendment”).

40
 afforded the right to counsel as guaranteed him by the constitution at
the time the statements were made. Accordingly, the Court is going to
address the merits of the motion on that basis. . . . The issues before
the Court are whether the Defendant, upon his invocation of his Fifth
Amendment right, was given counsel within the meaning, spirit and
intent of the U.S. Florida Constitution [sic], whether his statements
were freely and voluntarily made.10

So construed, the trial court found the following facts: (1) “that Mr.

Hetherington’s acts fell well within the range of professionally competent

assistance”; and (2) “that with competent assistance of counsel, the Defendant gave

free and voluntary statements on November 18th, 1997, November 21st, 1997 and

November 26th, 1997.” Under this Fifth Amendment analysis, the trial court

denied the motion to suppress as it related to Philmore’s statements made, in

Hetherington’s presence, on November 18, 21, and 26.11

10
Indeed, the trial court appears to have summarily rejected the notion that Philmore
could assert a claim for ineffective assistance under the Sixth Amendment and Strickland for
events transpiring prior to the initiation of adversarial criminal proceedings but, instead,
eschewed a literal reading of the motion and consciously construed it as asserting the Fifth
Amendment claim that was available: “Well, I don’t think it would be appropriate or fair to
either the State or the defense for this Court not to rule on the Defendant’s Motion to Suppress
the Statements simply because the defense counsel chose to site [sic] Strickland in its Motion to
Suppress.”
11
The trial court granted the motion to suppress with respect to Philmore’s statements
made to law enforcement outside of Hetherington’s presence, i.e. the statements during the two
polygraph examinations. The court explained, “With regards to the statements made during the
polygraph examination, the Court agrees with Mr. Bauer’s recitation of the facts that any free
and voluntary waiver of the presence of Mr. Hetherington was specifically conditioned on being
questioned and answers given consistent with those that were given during the statements.
Moreover, the detective as well as Mr. Hetherington testified – that protocol wouldn’t allow Mr.
Hetherington in the room. And while the Court’s aware of the written waiver of the Defendant,
it’s the Court’s view that that does not equate to a free and voluntary waiver of counsel during
the time of the polygraph examination.”

41
 Following Philmore’s conviction, on direct appeal, Philmore’s counsel

challenged the trial court’s denial of the motion to suppress, again, on the ground

that Philmore’s statements were not freely and voluntarily given due to the

ineffective assistance of Hetherington’s counsel. The Supreme Court of Florida,

however, rather than recognizing, as the trial court did, that Philmore’s claim,

although stated in terms of Strickland, was actually a claim under the Fifth

Amendment, not the Sixth, effectively bifurcated its review of the trial court’s

suppression ruling. It first affirmed the trial court’s conclusion that “Philmore

freely and knowingly waived his Fifth Amendment right to remain silent” in

speaking to the police. Philmore v. State, 820 So. 2d 919, 928 (Fla. 2002) (per

curiam), cert. denied, 537 U.S. 895, 123 S. Ct. 179, 154 L. Ed. 2d 162 (2002)

(Philmore I). It deferred a ruling, however, on what it saw as “Philmore’s

ineffective assistance claim under the Sixth Amendment,” denying it without

prejudice to Philmore’s right to re-assert the claim on collateral review under

Florida Rule of Criminal Procedure 3.850. Id. at 928-29. This, of course, was

erroneous: Philmore’s claim based on Hetherington’s alleged ineffectiveness was

grounded in the Fifth Amendment, not the Sixth; the ineffectiveness argument was

the focus of the motion to suppress and all of the evidence presented thereon; and

the trial court, on a complete record, properly had already ruled on the

42
ineffectiveness argument as a Fifth Amendment claim. There was no reason for

the Supreme Court of Florida to fail to consider the trial court’s ineffectiveness

findings pertinent to the Fifth Amendment claim on direct review.

Nevertheless, given the supreme court’s ruling on direct review, Philmore’s

state collateral review petition included a claim that Hetherington’s conduct

constituted ineffective assistance of counsel, ostensibly under the Sixth

Amendment and Strickland.12 At this point, the supreme court’s bifurcated ruling

put the post-conviction trial court – in this case, the same court and judge that

conducted Philmore’s trial – in a difficult position: the collateral petition on this

issue, invited by the supreme court, effectively demanded that the trial court (now

the post-conviction court) “reconsider” its own pretrial suppression ruling. This

reconsideration would also require a second (and redundant) evidentiary hearing

on the issue of Hetherington’s alleged ineffectiveness, this time lasting three days.

The post-conviction court also had to make the difficult determination of

what exactly the supreme court had ruled on direct appeal and correctly discern

that the supreme court had bifurcated its review of the pretrial suppression ruling.

12
Although the Supreme Court of Florida invited Philmore to re-raise his ineffective
assistance argument in a post-conviction motion under Fla. R. Crim. P. 3.850 (Motion to Vacate,
Set Aside, or Correct Sentence), Philmore I, 820 So. 2d at 928-29, because this is a capital case,
Philmore actually brought his petition for state collateral review under Fla. R. Crim. P. 3.851
(Collateral Relief After Death Sentence Has Been Imposed And Affirmed on Direct Appeal).

43
This ambiguity, forced on the post-conviction court by the Supreme Court of

Florida, unnecessarily raised the odds of error in the collateral proceedings. If the

post-conviction court wrongly interpreted the supreme court as simply affirming

the suppression ruling, in toto, then it would be bound by the law of the case

doctrine to conclude that it was not error to deny the pretrial motion to suppress

and would have no room to “reverse” itself on collateral review by finding error in

the denial of suppression. This would make the entire collateral proceeding utterly

pointless with respect to the suppression motion. It would also be a

misconstruction of what the supreme court held on direct review. If, on the other

hand, the post-conviction court properly recognized that the supreme court

bifurcated its review – affirming on the voluntariness of the statements, but

deferring review on the ineffectiveness claim – then the post-conviction court

would be free to “reverse” itself on the question of Hetherington’s ineffectiveness,

an issue on which the supreme court had not yet opined. Still, the necessary rehash

of the suppression motion and evidentiary hearing would require a needless waste

of judicial resources, which the supreme court could – and should – have avoided

by ruling on the entire suppression issue (including the ineffectiveness claim) on

direct review. A more comprehensive ruling on direct review would have left no

claim regarding the suppression motion for state collateral review, saving the

44
parties and the Florida courts time, effort, and resources by reserving any further

challenge for federal habeas corpus review.

Perhaps unsurprisingly, the state post-conviction court denied relief, finding

once again on the suppression issue that Hetherington’s performance was not

ineffective under the Strickland standard.13 The Supreme Court of Florida,

concluding “that the trial court’s determination that Hetherington’s actions were

informed, strategic choices is supported by competent, substantial evidence,”

affirmed the post-conviction trial court’s finding that Hetherington’s performance

was not ineffective. Philmore v. State, 937 So. 2d 578, 584-85 (Fla. 2006) (per

curiam) (Philmore II). In its published opinion, the supreme court lumped its

analysis of Hetherington’s pre-indictment effectiveness in with its review of other

claims of ineffective assistance that clearly implicated the Sixth Amendment’s

Assistance of Counsel Clause, all under an introductory section setting forth the

13
In the portion of its order denying post-conviction relief relating to the suppression
argument, the state post-conviction trial court did not expressly specify whether it was
conducting its ineffective assistance analysis under the Fifth or Sixth Amendment. Given its
prior pretrial suppression ruling under the Fifth Amendment, we could assume that the court
correctly continued to view this issue as a Fifth Amendment claim. On the other hand, given
that the Supreme Court of Florida erroneously posed this ineffectiveness question as one arising
under the Sixth Amendment, we could alternatively assume that the court now felt constrained to
follow the supreme court’s mischarted course off the path of legal rectitude and treat the issue as
a Sixth Amendment claim. As the supreme court, in its collateral review, continued to treat the
question of Hetherington’s effectiveness as a Sixth Amendment claim, the question of which
amendment the trial court proceeded under on collateral review is little more than academic. All
that really matters is that the court reaffirmed its previous holding that – whether under the Fifth
or Sixth Amendment – Hetherington did not provide ineffective assistance.

45
Strickland standard for ineffective assistance under the Sixth Amendment. See id.

at 583-88. Additionally, the supreme court expressly declined “to address the

State’s argument that Philmore’s Sixth Amendment right to counsel for the murder

had not attached at this time [of Hetherington’s challenged conduct]” on account of

its conclusion that Philmore failed to establish that he received ineffective

assistance. Id. at 584 n.6. All of this indicates that the supreme court continued to

view, erroneously, Philmore’s claim that Hetherington’s pre-indictment

performance was ineffective and should have led to the suppression of Philmore’s

incriminating statements as arising under the Sixth Amendment.

With the Supreme Court of Florida now twice having unmoored Philmore’s

suppression claim from its proper Fifth Amendment anchor, the issue reached the

federal district court primarily with the trappings of a Sixth Amendment ineffective

assistance claim. In his petition for a writ of habeas corpus under 28 U.S.C. §

2254, Philmore styled his ground for relief based on the failure to suppress his pre-

indictment statements as follows:

The lower court erred in holding that Mr. Philmore was not deprived
of his 4th, 5th, 6th, 8th, and 14th Amendment rights of the
Constitution of the United States and the corresponding provisions of
the Florida Constitution. The pre-trial representation of Mr. Philmore
fell far below the standards set in Strickland and Cronic.14

14
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). In
Cronic, the U.S. Supreme Court held that the defendant had failed to show actual ineffective

46
Although his petition nominally invoked several constitutional amendments,

including the Fifth Amendment, Philmore’s argument diverted from the original

trial court suppression claim that his statements were not freely and voluntarily

given due to defects in Hetherington’s assistance to the Sixth Amendment-focused

charge that Hetherington’s performance amounted to a complete denial of

counsel.15 Positioned in this way, the district court, in denying habeas relief on this

ground, concluded that “the [state] courts’ decisions as to Philmore’s claim of

ineffective assistance of pre-indictment counsel were not contrary to nor an

unreasonable application of established federal law” under Strickland. This

assistance of counsel and that it would not presume ineffective assistance because the case did
not involve “surrounding circumstances mak[ing] it unlikely that the defendant could have
received the effective assistance of counsel.” Id. at 666, 104 S. Ct. at 2051. The Court also
noted, however, that circumstances such as “the complete denial of counsel,” “counsel entirely
fail[ing] to subject the prosecution’s case to meaningful adversarial testing,” or an extreme case
in which “although counsel is available to assist the accused during trial, the likelihood that any
lawyer, even a fully competent one, could provide effective assistance is so small that a
presumption of prejudice is appropriate without inquiry into the actual conduct of the trial” could
give rise to a presumption of a denial of the defendant’s Sixth Amendment rights. Id. at 659-60,
104 S. Ct. at 2047.
15
Incidentally, in his federal habeas petition itself, Philmore appears to have conceded a
failure to exhaust this claim in the state courts. Philmore responded “No” in response to the
question, “Did you raise Ground II [the challenge to Hetherington’s performance] in the
Supreme Court of Florida on a direct appeal of your conviction?” See 22 U.S.C. §
2254(b)(1)(A) (“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 unless it appears that . . . the
applicant has exhausted the remedies available in the courts of the State . . . .”); Thompson v.
Sec’y for Dep’t of Corr., 517 F.3d 1279, 1283 (11th Cir. 2008) (per curiam) (“state prisoners
must give the state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process” (quoting O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999)).

47
finding sounded in the Sixth Amendment relied upon by the Supreme Court of

Florida. The district court then continued the supreme court’s error by granting

Philmore’s application for a certificate of appealability, which framed the

challenge to Hetherington’s pre-indictment performance as follows: “The lower

court erred in finding that Philmore was not denied his constitutional rights, as his

pretrial counsel’s performance fell far below the standards of Strickland and

Cronic.” In other words, the challenge was presented to us, with the approval of

the district court, as a Sixth Amendment ineffective assistance of counsel claim,

rather than the Fifth Amendment claim, contesting the free and voluntary nature of

the self-incriminating statements, that it was and should have been, as the trial

court initially recognized.

III.

In the foregoing, I have described how Philmore’s claim that his pre-

indictment counsel’s ineffectiveness induced him to make self-incriminating

statements that were not free and voluntary, in violation of the Fifth Amendment’s

Self-Incrimination Clause, improperly morphed into a non-cognizable Sixth

Amendment ineffective assistance claim. Because, as we hold, Philmore could

have had no Sixth Amendment claim relating to events prior to the initiation of

adversary judicial criminal proceedings, one might infer that counsel’s

48
effectiveness is wholly insulated from constitutional challenge prior to the

attachment of the defendant’s Sixth Amendment rights. This is not the case. What

follows is a description of (1) Philmore’s error in bringing his ineffectiveness

claim on federal habeas review, and (2) the manner in which he properly could

have, but did not, challenge Hetherington’s performance in federal court.

Initially, as this court correctly holds, Philmore could not have established

that Hetherington’s performance violated his Sixth Amendment right to counsel

(and, specifically, the effective assistance of counsel) because his Sixth

Amendment right to counsel had not yet attached at the time of Hetherington’s

challenged conduct. Instead, the only way that a federal habeas court could have

reviewed Hetherington’s effectiveness is in the context of the trial court’s denial of

Philmore’s motion to suppress the incriminating statements he gave during the

police investigation. Under these facts, the federal courts could undertake this

review by means of one of two vehicles: (1) a claim that Philmore’s appellate

counsel was ineffective in failing to raise (or ineffectively raising) a challenge on

direct appeal to the trial court’s denial of the motion to suppress; or (2) a claim that

the Supreme Court of Florida erred by misapplying the law or unreasonably

determining the facts in affirming the trial court’s denial of the motion to suppress

based on Hetherington’s alleged ineffectiveness under the Fifth Amendment.

49
 The first route – a claim that appellate counsel was ineffective on direct

appeal – would be available to Philmore if appellate counsel, on direct appeal, did

not challenge (or incompetently challenged) the denial of the motion to suppress.

If no such challenge were brought on direct appeal, then appellate counsel would

have procedurally defaulted or waived Philmore’s Fifth Amendment claim that

Hetherington was ineffective (and, accordingly, that Philmore’s statements should

have been suppressed). In that situation, this procedural default or waiver by

appellate counsel would be the specific ineffective assistance under review by the

federal habeas court.16 In order to establish ineffectiveness, Philmore would need

to show (1) that his appellate counsel’s conduct was deficient (i.e., fell below the

minimum objective standard of reasonable competence and professionalism); and

(2) that such deficient performance resulted in material prejudice such that there is

a reasonable probability – sufficient to undermine confidence in the outcome –

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

have been different (i.e., that if not for his appellate counsel’s ineffectiveness, the

Supreme Court of Florida, on direct appeal, would have reversed the trial court’s

16
In Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), the
Supreme Court held that the Fourteenth Amendment’s Equal Protection Clause guarantees an
indigent defendant the right to counsel on a direct appeal made available as of right. As with the
Fifth Amendment right to counsel guaranteed by Miranda, I assume this implies the right to
effective appellate counsel.

50
denial of his motion to suppress). See Strickland v. Washington, 466 U.S. 668,

687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674 (1984).

The second route – a claim that the Supreme Court of Florida misapplied the

law or unreasonably determined the facts in reviewing the denial of the motion to

suppress – would be available if Philmore’s counsel properly challenged the trial

court’s suppression ruling on direct appeal yet, nevertheless, lost the challenge.

The federal habeas statute provides for a federal remedy upon a showing that the

state court’s adjudication of a 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
the State court proceeding.

28 U.S.C. § 2254(d). Accordingly, Philmore could properly seek federal habeas

relief via a claim that the Supreme Court of Florida’s decision regarding the

suppression motion (1) was contrary to, or involved an unreasonable application

of, clearly established federal law as determined by the U.S. Supreme Court, or (2)

was based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceeding.

Unfortunately for Philmore, he raised neither claim in his federal habeas

petition, and neither issue appears in the certificate of appealability to this court.

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Philmore’s § 2254 petition does not claim that his counsel on direct appeal

provided constitutionally ineffective assistance. Indeed, any such claim would

almost certainly fail, as Philmore’s appellate counsel did challenge the trial court’s

denial of the suppression motion on direct appeal. Moreover, Philmore’s appellate

counsel properly based the challenge on the ground that Philmore’s statements

were not freely and voluntarily given, pursuant to the Fifth Amendment, due to the

ineffective assistance of Hetherington’s counsel. As such, counsel on direct appeal

brought the right claim in the right way, i.e., was not ineffective; the argument

simply did not carry the day in the Supreme Court of Florida.17 Similarly, neither

Philmore’s petition nor the certificate of appealability includes any claim that the

Supreme Court of Florida misapplied the law or unreasonably determined the facts

in affirming the denial of the motion to suppress.

17
The effectiveness of Philmore’s trial counsel is also not at issue, primarily because no
claim of ineffective assistance of trial counsel, with respect to the motion to suppress, appears in
the federal habeas petition or the certificate of appealability. In any event, however, such a
claim would also appear to be meritless. It would require a showing (1) that trial counsel was
deficient in bringing and litigating the motion to suppress, and (2) that, if not for trial counsel’s
ineffectiveness, the trial court would have suppressed Philmore’s incriminating statements and
the resulting evidence. In fact, Philmore’s trial counsel did move to suppress the statements,
including on the ground that Hetherington’s alleged ineffectiveness rendered the statements not
freely and voluntarily given under the Fifth Amendment. Therefore, just like appellate counsel,
trial counsel appears to have taken the right steps and made the right argument, just
unsuccessfully.

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 In sum, Philmore failed to avail himself of either of the properly cognizable

arguments available to him on federal habeas review for challenging the

underlying claimed ineffectiveness of Hetherington’s pre-indictment counsel.

53