[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUG 10, 2009
No. 07-15876 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-01378-CV-ORL-28KRS
CURTIS WINDOM,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 10, 2009)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Curtis Windom, sentenced to death for the first-degree murders of
Johnnie Lee, Valerie Davis, and Mary Lubin, appeals the orders of the district
court denying his petition for a writ of habeas corpus, entered on 2 November
2007, and denying his Rule 59(e) motion to alter or amend the judgment, entered
on 14 November 2007. In this appeal, we must decide whether the Florida state
courts unreasonably applied clearly established federal law when they found that
Windom failed to establish that his penalty-phase counsel rendered ineffective
assistance by: (1) neglecting to investigate and present available evidence from
mental health experts and lay witnesses related to statutory and non-statutory
mitigating factors, and (2) conceding the state’s case for aggravation. For the
reasons that follow, we AFFIRM the district court’s denial of Windom’s habeas
petition.
I. BACKGROUND
A. Trial – Guilt Phase
Windom was indicted in 1992 by an Orange County, Florida grand jury on
three counts of first-degree murder and one count of attempted first-degree murder.
At trial, Jack Luckett testified that he spoke with Windom on the morning of the
shootings and that Windom asked him if Johnnie Lee had won any money at the
2
dog track.1 When Luckett told Windom that Johnnie Lee had won $114, Windom,
whom Johnnie Lee owed $2000, told Luckett, “‘My nigger, you’re gonna read
about me’” because he was going to kill Lee. R2-23, Appendix to State’s Habeas
Response, Appx. A4 (“A4”) at 356. Later that same day, Windom purchased a .38
caliber revolver and a box of fifty .38 caliber shells from Abner Yonce at a
Walmart store in Ocoee, Florida. According to Yonce, there was nothing unusual
about Windom, whom he described as “‘calm as could be.’” Id.
Almost immediately after purchasing the gun, Windom pulled up in his car
next to Lee, who was standing on the sidewalk talking to Luckett and two women.
Luckett and the two women all testified that Windom’s car was close to Lee and
that Windom leaned across the passenger seat of his car and shot Lee twice in the
back. After Lee collapsed to the ground, Windom got out of the car and, standing
over him, shot him two more times at very close range. Windom thereafter ran
towards the apartment where Valerie Davis, his girlfriend and the mother of one of
his children, lived. Within seconds of arriving at the apartment, and without
provocation, Windom shot Davis in the left chest area as she talked on the
telephone. Windom fled the apartment and ran outside, where he encountered
Kenneth Williams on the street. Windom shot Williams in the chest area at very
1
This recitation of the facts adduced at trial is taken almost verbatim from the trial
judge’s sentencing order.
3
close range. Though hospitalized for almost a month, Williams survived. He
testified that when Windom shot him, Windom did not look normal and that his
eyes were “‘bugged out like he had clicked.’” Id. at 358.
After shooting Williams, Windom made his way to Brown’s Bar, where
three men, including Windom’s brother, attempted to take the gun from him. By
that time, Davis’ mother, Mary Lubin, who moments earlier had learned that her
daughter had been shot, had left work in her car and was driving down the street.
When she stopped at a stop sign, Windom approached her car, said something to
her, and then shot her twice, killing her. The jury returned guilty verdicts on all
four counts of the indictment.
B. Trial – Penalty Phase
In his opening statement before the jury, Windom’s attorney, Ed Leinster,
made the following remarks:
Since I’m the same individual that was largely
unsuccessful in convincing anyone here that Mr. Windom did not
do everything the state said he did and in the degree that they
said he did. I hope that I can at least keep your attention through
this particular phase.
....
Nothing about this has been fun. Trying a first-degree
murder case is about as brutal as it gets. I wasn’t there, I didn’t
participate. My job is to try to save a man’s life, end of story.
You made your decision. It wasn’t too tough.
4
Broad daylight, what can you say? I would have to be the
firm of Christ and Houdini to have made anything out of this
other than what it clearly was. So the question now for you is,
do we pay any homage to what several people refer to as the
sanctity of human life at this point? Does he forfeit his life?
....
You are going to hear a few people who are going to
testify. I’m frankly not quite sure what they are going to say as
far as the state’s presentation. And they will be presenting
aggravating factors to you. Those are by law statutory
aggravating factors that have to be proven beyond a reasonable
doubt.
Then we present testimony that essentially says he is not
all bad. That is a tough pitch for people who have heard what he
did. And it is my job once again to try to convince you. You
may already be convinced. You may have already made up your
minds; I hope not. But my job is going to be at least to try to say
this man doesn’t need to die.
There is no reason for him to die. And I guess the ultimate
conclusion that we are all going to find out when this is all over
really through your determination is really what we mean by the
sanctity of human life. Because he is a human, too.
R2-23, Appendix to State’s Habeas Response, Appx. A1 (“A1”) at 26-28.
The state then called Vickie Ward, a police officer with the Winter Garden
Police Department who at the time of the 1992 shootings had been assigned to the
D.A.R.E. program at a local elementary school, to testify as to the impact of the
5
murders on the Winter Garden school children.2 Defense counsel presented no
testimony or other mitigating evidence to the jury. During a bench conference, the
following exchange occurred between Leinster and the trial judge:
Mr. Leinster: The state having chosen to put on what they
put on, we could put on a variety of
individuals whose testimony would be
essentially that in their personal observations
of the defendant, they had never seen
anything quite like this or this kind of
presentation. That he seemed to be out of his
mind at the time, was part of the trial
testimony which the jury can consider for
purposes of the penalty phase.
What that does open up, however – and
I can’t control how these people deliver their
presentation . . . is the possibility for the state
to then cross-examine them about such things
as you didn’t see him do this, so forth, but
were you aware of bla, bla, bla, bla [sic] the
following. And this has been from start to
finish, a cocaine case with a murder overlay.
The jury hasn’t heard that.
The Court: About the cocaine.
Mr. Leinster: About the cocaine. And I have had to tread a
very thin line from the beginning to end. And
I’m doing this for the record, not to amuse
you or anything.
The Court: I know, and I’m letting you not to amuse you.
2
Ward also had been involved in the investigation of the murders.
6
Mr. Leinster: There are ways of approaching these kinds of
cases. And I would probably have tried this
case in a different fashion if it were not a
first-degree murder case, if it didn’t have a
death sentence attached to it, I may have been
perfectly happy to let the jury hear that there
was cocaine involved. And the other people
that were involved and that there were notions
of his girlfriend sleeping with another person
and that she might have been an informant
and on and on and on. Except for the fact
that, in my opinion, that would have made an
already almost inextricable legal situation
worse.
So I did the very best I could with what
I had which was, I didn’t have a pair, you
know, that the state had a straight flush, and I
didn’t even have enough to bluff with. Now,
what we have got now is, the state because of
I think your rulings has put on one person
which is not an aggravating factor.
And if I put on a slew of potential
people to say nice things about Curtis
Windom, and I’m sure they will, there is the
distinct possibility that those folks are going
to be asked questions in cross-examination
that I may find highly objectionable. But once
the question is asked, it is asked. Whether you
agree with me or not, ultimately, the jury has
heard it.
And in my opinion, what we end up
with is Curtis Windom is tried for drugs and
not for what happened. So I as his lawyer
have made a strategic decision, wise or
unwise, not to call these folks and to argue
7
what we have got here. And if I am wrong, of
course, some day I’m going to hear about it.
The Court: Well, have you discussed this with your client
and is he in agreement with this?
Mr. Leinster: I discussed this with my client before lunch. I
don’t know if he is in agreement with it or
not. Curtis, are you in agreement with it?
[Windom]: Yes.
The Court: You are?
[Windom]: Yes.
The Court: Do you understand why he is doing it this
way?
[Windom]: Yes.
The Court: Why do you understand it to be?
[Windom]: Because he don’t want the drug thing to come
in.
Id. at 39-41.
Following the bench conference, Leinster delivered his closing argument to
the jury:
During voir dire . . . I asked a lot of people about their
feelings about the death penalty. And I don’t think I ever got a
response that made a bit of sense. Usually what it is is, well, if
someone takes a life, then he forfeits his life. Once that person
makes a decision to kill someone else, then he ought to die.
8
And that same nonsense is uttered by people who in the
same breath vouch for the sanctity of human life . . . Why do you
tell me on the one hand that you believe in the value of human
life, and yet you tell me that if somebody kills another, they
should forfeit theirs?
....
Killing this man, that is what Mr. Ashton wants to do.
That is what the state wants to do; it is. Don’t dress it up, they
want to kill him.
Okay, he did everything a human could probably do to
deserve that in the sense that it outrages us. It makes us angry.
And if it had been one of ours, if it had been one of our close
loved ones and he had done it, we wouldn’t have been worrying
about the police. We would have gone and killed him.
....
And when we say to those children. . . that the state said
were affected by this, when we take the message back to them
that we have today killed Curtis Windom, we have electrocuted
Curtis Windom, what is that message? The message is that we
condone killing.
....
There are actually people who are willing to say
intellectually, why should taxpayers have to pay for someone to
sit in prison for the rest of their [sic] life? As though economics
has something to do with a human life. Now, I’m not here telling
you that this is a good fellow.
He is a human being. He is not a good fellow. You have
said that, okay. But now what you are being asked to do is to kill
him. And despite the fact that your decision is not absolutely
binding, the court has told you, what you decide pretty much is
9
the way it is going to go.
So at some point in time down the road, this man who for
whatever reason on that particular day did what he did, if you
find that he deserves to die, is going to be electrocuted.
....
Society as a whole is brutalized. It is demeaned by the
concept of capital punishment. . . . It is not as though capital
punishment is part of the entire world system of justice. It is not.
It is part of Florida law. It doesn’t mean that it is God given.
....
[I]f, in fact, . . . there is a moral rightness and a moral
wrongness . . . then how can you possibly condone killing
someone. . . . ?
....
And I also understand that people make mistakes, and I’m
not so foolish as to suggest to you that this was just a mistake.
This wasn’t a mistake. It was a horrible, brutal act.
....
I have not spent very much time arguing to twelve people
not to kill someone. So I am not experienced in this art. I didn’t
bring in a fugue state with Dr. Kirkland to pretend that there was
an amnesia quality about this sort of thing. I simply brought it
up to show you that we just don’t have a clue why we do what
we do.
And Curtis Windom doesn’t deserve pity. He doesn’t
deserve anything for what he did. I agree with you, it was – I
agree with Jeff, it was cold. The two aggravating factors are that
it was premeditated. Well, that is part of the charge. Anybody
10
that could commit first-degree murder, it is premeditated. So
that is aggravated.
And the other is that it was cold in the sense that any
killing is cold. It is, by definition. The mitigation factors you
will be asked to consider, some of them don’t make any sense at
all. Talks about an accomplice, so forth. That doesn’t make any
sense. But some of them had a lot of bearing.
Some of them talk about whether or not the individual was
under extreme mental or emotional disturbance at the time. I
never told you he was crazy. But even people testifying against
him said that is not who we had seen all his life. He was crazy,
not legally insane. You got to be frothing at the mouth to be
legally insane. But he wasn’t himself.
Whatever happened on that particular day in his life,
whatever bizarre configuration of relays took place that day that
caused him to do this, we won’t ever know. But nobody says
today, I think I’ll go out and shoot four people. Something
happened, and that is all they called the doctor for.
....
Be honest, okay? We are talking revenge. That is all. That
is the only reason we are talking about killing this man is to say
we are mad at you, Curtis Windom. You ought to be. Society
ought to be mad at him.
....
As long as it is given a judicial stamp of approval, we can
send twenty thousand volts through a man and fry him in a seat.
It is murder, pure and simple. You can wrap a ribbon around it if
you want to. Killing Curtis Windom isn’t going to do a single
thing except endorse that philosophy that we are never going to
grow up as a society.
11
Id. at 90-98.
The jury unanimously recommended death for all three first-degree murder
counts. On 5 and 10 November 1992, the trial judge held hearings during which
defense counsel was permitted to present mitigation evidence. Jerline, Windom’s
sister, testified that Windom saved her from drowning when she was twelve years
old and he was about nine years old. Willie Mae Rich testified that she had known
Windom his entire life and that he always gave her flowers or gifts on her birthday
and Mother’s Day; often made donations to the church they attended; helped her
procure medicine she required for a respiratory condition after she was laid off
from her job; bought clothes and food for the youth football team; provided for his
children; and was charitable to less fortunate members of the community. She
described Windom as “mild mannered” and testified that what happened in
February 1992 was “really” out of character. R2-23, Appendix to State’s Habeas
Response, Appx. A5 (“A5”) at 488. Mary Jackson, Rich’s sister, testified that she
had known Windom since he was three or four years old and that Windom often
lent money to people in the community who were unemployed. She described
Windom as a “sweet” and “low-key” person who “always offered a smile and [had]
a kind word to say.” Id. at 500. She had never observed him to be violent and
believed he was amenable to rehabilitation. Charlene Mobley testified that she had
12
known Windom her entire life and had dated him at one time. She stated that
Windom was “cool and calm” and “always smiling,” that he was never physically
violent towards her, and that he had helped her financially even after they ended
their romantic relationship. Id. at 514-15. Julie Harp testified that she had known
Windom for twenty-five years and that Windom was the father of two of her
children. She related that Windom was a “great” father, who provided for and took
care of his children and was never violent towards them. Id. at 519-20. At the 10
November 1992 hearing, defense counsel called John Scarlet, who testified that
Windom intervened to prevent Scarlet from shooting another individual who stole
twenty dollars from him.
In her sentencing order, the trial judge found two aggravating factors: (1)
that Windom had been previously convicted of another capital offense or of a
felony involving the use or threat of violence to a person, and (2) that the capital
crimes were committed in a cold, calculated, and premeditated manner without any
pretense of moral or legal justification.3 Based on witness testimony at the guilt
phase that Windom “was not himself and was not acting the way he normally
does,” the trial judge found, but gave minimal weight to, the statutory mitigators of
3
In concluding that the crime was cold, calculated, and premeditated, the court noted that
there was no evidence that any of the victims had been armed or had threatened Windom in any
way. Rather, Windom approached each of them without provocation and shot them at close
range “with incredible accuracy.” A4 at 358-59.
13
“extreme mental or emotional disturbance” and “extreme duress.” A4 at 360-61.
The trial judge further found the statutory mitigator of “no significant prior
criminal activity” as well as the following non-statutory mitigators: (1) Windom
assisted people in the community (little weight); (2) Windom was a good father
who supported and took care of his children (little weight); (3) Windom saved his
sister from drowning (very little weight); and (4) Windom saved another individual
from being shot during a dispute over twenty dollars (very little weight). The trial
judge concluded that these mitigators were outweighed by the aggravating
circumstances and thus insufficient to preclude the death penalty. Accordingly, the
trial judge sentenced Windom to death for the murders of Lee, Davis, and Lubin.
C. State Post-Conviction Proceedings
Following the Florida Supreme Court’s affirmance of his death sentence on
direct appeal, see Windom v. State, 656 So. 2d 432 (Fla. 1995) (per curiam), cert.
denied, 516 U.S. 1012, 116 S. Ct. 571 (1995),4 Windom filed a motion for post-
4
Although the Florida Supreme Court agreed that Windom murdered Lee in a cold,
calculated, and premeditated (“CCP”) manner without any pretense of moral or legal
justification, it reversed the lower court’s CCP determination as to Davis and Lubin, finding that
there was no evidence that Windom planned to shoot anyone other than Johnnie Lee when he
bought the gun and bullets. See Windom, 656 So. 2d at 439. The Florida Supreme Court
nevertheless affirmed Windom’s death sentence for all three murders, concluding that the lone
aggravating factor of Windom’s having been previously convicted of two other capital offenses
and one violent felony against a person in each instance was sufficient to outweigh the minimal
weight the trial court gave to the mitigating factors it found. See id. at 440. In so holding, the
court further noted that “it is not the number of aggravating and mitigating circumstances that is
critical but the weight to be given each of them.” Id.
14
conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The post-
conviction court summarily denied fourteen of the twenty-one claims he raised in
his motion, but granted an evidentiary hearing on, inter alia, Windom’s claims of
ineffective assistance of counsel based upon (1) defense counsel’s alleged failure
to investigate and present mitigating evidence during the penalty phase of the trial
and (2) defense counsel’s alleged concession of the state’s case for death during
the opening and closing statements of the penalty phase.
1. Evidentiary Hearing
At the evidentiary hearing, Dr. Jonathan Pincus, a neurologist who
conducted a neurological evaluation of Windom, testified that Windom suffered
from organic brain damage and mental illness. Dr. Pincus opined that Windom’s
brain damage likely was caused by a traumatic head injury he suffered at birth and
a car accident at age sixteen that rendered him unconscious for a substantial period
of time. He testified that an individual with brain damage was much less able to
resist temptations imposed by mental illness and that as a result of his brain
damage, Windom’s capacity to control his behavior, which was unmodulated and
motivated by delusional thinking, and to distinguish between right and wrong at
the time of the murders was “seriously compromised.” R2-23, Appendix to State’s
Habeas Response, Appx. C15 (“C15”) at 563-64. According to Dr. Pincus,
15
because Windom’s mental illness and neurological condition made it impossible
for him to premeditate properly, he believed the crimes were not planned, but were
a “series of chance encounters.” Id. at 564, 567.
Dr. Craig Beaver, a psychologist who performed a neuropsychological and
clinical psychological evaluation of Windom, testified that Windom suffered from
moderate brain dysfunction and was under a high level of stress on the day of the
killings. Based on interviews with Windom’s family members, who related that in
the weeks before the shootings, Windom’s behavior had changed abruptly and he
had become increasingly paranoid, Dr. Beaver concluded that Windom’s
neurological and psychological limitations “came to a head” on the day of the
murders and that he was under extreme emotional distress and experiencing an
“acute psychotic episode” when he shot his victims. Id. at 661-63, 670. Dr.
Beaver explained that the paranoia Windom was experiencing would have affected
his ability to think clearly, make rational decisions, and appreciate the
consequences of his actions, especially when combined with his frontal lobe brain
damage.
The state’s mental health expert, Dr. Sidney Merin, testified that he
evaluated Windom in May 2001 and found no compelling evidence that Windom
suffered from any significant brain impairment. With respect to Windom’s falling
16
on his head at birth, Dr. Merin explained that this incident was fairly
inconsequential “[b]ecause the brain at that age, skull at that age is very flexible,
and any problems would have been . . . overcome, unless it was so severe he had to
go to the hospital because there was bleeding or whatever.” R2-23, Appendix to
State’s Habeas Response, Appx. C18 (“C18”) at 1197-98. With respect to the head
injury Windom sustained at age sixteen in the car accident, Dr. Merin opined that it
“may have had some adverse effect, but the probabilities are that it did not,”
especially given that there was “no evidence of impaired behavior, other than using
poor judgment” following his period of unconsciousness. Id. at 1198.
Dr. Merin noted that while persons with significant prefrontal lobe
impairment very often have difficulty socializing, Windom had no trouble
interacting with others prior to his arrest, and in fact was “performing very well.”
Id. at 1126-27. Although Windom did have a documented learning disability and
did poorly in school, this was not a function of any prefrontal lobe impairment. Id.
at 1128. Rather, Windom most likely had “garden variety reduced intelligence, not
mental retardation . . . specific only to academic function and not to functions of
how to live on the streets, the activities of daily living.” Id.
Dr. Merin further indicated that while Windom was undoubtedly
experiencing some level of stress at the time of the killings, he was not under
17
extreme mental or emotional disturbance when he committed the murders. Dr.
Merin observed that Windom did not lack motivation and nor was his initiative
impaired. In fact, Windom’s initiative was “very adequate” and he was “quite
capable of inhibiting his behavior.” Id. at 1125-26. Moreover, Dr. Merin testified,
his evaluation of Windom revealed “no evidence of breaks of reality or loosening
of ties with reality.” Id. at 1130. Dr. Merin concluded that Windom had the
capacity to conform his conduct to the requirements of the law and was “quite
capable” of distinguishing between right and wrong and appreciating the
criminality of his conduct. Id. at 1200.
Dr. Richard Kirkland, the psychiatrist appointed to evaluate Windom for
competency to stand trial, testified that he conducted a clinical interview with
Windom on 17 August 1992, but was unable to make a determination regarding his
sanity at the time of the crimes because he lacked necessary information, which he
had requested but never received, regarding Windom’s background. Dr. Kirkland
was not appointed during the penalty phase to evaluate Windom for statutory or
non-statutory mitigating factors, and was never advised prior to submitting his
report to the trial judge that Windom had suffered head trauma at birth and as a
teenager.
Defense counsel also called several lay witnesses to testify as to Windom’s
18
background and childhood. Gloria Jean Windom, one of Windom’s eight siblings,
testified that they were very poor growing up and that their father physically
abused them and their mother. On one occasion, their father beat their mother with
a tire iron so severely that she almost died. She recalled hearing that Windom had
been dropped on his head at birth and testified that at age sixteen, he was
hospitalized after suffering a concussion in a car accident that caused the vehicle
he was in to flip over several times. Gloria Jean further testified that Windom was
meticulous about his appearance: he dressed well, bathed often, always wore clean
clothes, and kept his hair closely shorn and slicked back with gel. In the few
weeks leading up to the murders, however, she observed that Windom had stopped
bathing and cutting or combing his hair, wore the same clothes several days in a
row, and would walk around the neighborhood without a shirt or shoes. She stated
that she met with Windom’s trial attorneys, but they never asked her any questions
about Windom’s background or requested that she testify.
Eddie Lee Windom, Windom’s youngest brother, testified that as a child
Windom had a speech impediment and bladder control problems. Because the
family was so poor and did not have a washing machine, Windom was forced to
wear his urine-soaked clothes to school, prompting his classmates to tease him and
call him “Pissy.” R2-23, Appendix to State’s Habeas Response, Appx. C16
19
(“C16”) at 784. He testified that their father gambled, beat them, and severely beat
their mother in front of them. He also testified that as an adult, Windom was
always neat, his clothes were always laundered and pressed, his shoes were shined,
and he kept his hair clean and styled. Like Gloria Jean, Eddie Lee recalled that in
the two or three weeks before the murders, Windom’s hair was unwashed and wild,
he wore the same dirty clothes day after day, walked around the neighborhood
barefoot and shirtless, stopped bathing, and had become overweight. Eddie Lee
stated that he met one of Windom’s trial attorneys when he went to his office to
pay Windom’s legal fees but that Windom’s attorney was too busy to talk to Eddie
Lee about Windom’s case.
Mae Louis Tatum, Windom’s older sister, also recalled that Windom fell
head-first onto a concrete floor immediately after his mother delivered him and that
he was in a serious car accident when he was sixteen that rendered him
unconscious and resulted in his being hospitalized for a couple of days.5 She
testified that after being released, Windom started having headaches, his speech
became impaired, he became emotional with little provocation, and he was difficult
to understand. Tatum met Windom’s attorneys one or two times before trial but
had no conversations with them regarding Windom’s defense.
5
Lena Windom, Curtis’s mother, confirmed that upon being delivered, Curtis fell head-
first onto the bathroom floor and was not examined by anyone other than a midwife.
20
Willie Mae Rich, Windom’s neighbor, testified that she saw Windom about
a month before the killings and noticed that he looked different and was acting
strange. According to Rich, Windom was hyper and shaking, his eyes were
“moving around in his head,” his face was bloated, his hair was “kinky,” he was
dirty, and he was not wearing a shirt or shoes. R2-23, Appendix to State’s Habeas
Response, Appx. C17 (“C17”) at 890-91. She testified that two or three weeks
before the murders, she told Windom that she had heard a rumor that someone was
planning to kill him. She said that Windom told her he had heard the same rumor.
Ed Leinster, one of Windom’s trial attorneys, testified that he advised
Windom to waive the mitigating factors that Windom was charitable, a good
father, and kind to people in the community because he feared that the lay witness
testimony establishing these mitigators would open the door to damaging rebuttal
evidence that Windom was a large-scale cocaine dealer, which, according to
Leinster, “prevailed the whole fabric of [the] case.” C16 at 817, 829. Leinster
explained that he had to tread a “thin line” because the case had been “from start to
finish a cocaine case with a murder overlay” and the jury did not know about the
cocaine. Id. at 833-34. Leinster also testified that he had heard rumors that
Windom’s girlfriend (Davis) was having an affair with Johnnie Lee and that she
was an informant. Leinster feared that these rumors might be corroborated if he
21
called certain community members for mitigation purposes. Leinster stated that he
was likewise reluctant to call witnesses during the penalty phase to testify that
Windom was behaving uncharacteristically in the weeks leading up to and on the
day of the murders because he feared presenting such testimony would run the risk
of the prosecution eliciting damaging information about Windom’s drug-dealing
during cross-examination. Because this was a death case, Leinster stated, any
information that Windom was a cocaine dealer, that his girlfriend was sleeping
with one of the other victims and may have been an informant in a drug
investigation involving Windom, or that Windom had had a falling out with
Johnnie Lee over drug money, would have greatly damaged the defense by
supplying a motive for the killings that Leinster did not want the jury to consider.
Leinster admitted that he did not file a motion in limine to have to the court rule on
whether this lay witness mitigation testimony would have opened the door to
evidence of Windom’s drug-dealing, and that he did not have a strategic reason for
not filing such a motion.
With respect to his failure to present mental health experts to testify at the
penalty phase as to Windom’s mental state at the time of the murders, Leinster
explained that he relied on Dr. Kirkland’s report, which indicated that there was no
viable mental health defense, and adopted the strategy of trying to implant in the
22
jurors’ minds during the guilt phase of trial that Windom’s state of mind on the day
of the murders made him incapable of committing first-degree murder. Although
the trial judge had granted his motion as to costs for a court reporter, depositions,
transcripts, subpoenas, and an investigator, Leinster admitted that he never retained
an investigator to look into penalty phase issues and never requested a confidential
mental health expert to assist him in preparing Windom’s defense. When asked
whether he had a strategic reason for not asking that a confidential mental health
expert be appointed, Leinster admitted, “Well, I’m sure it wasn’t strategy.” Id. at
820.
Leinster further testified that had he had the benefit of Drs. Pincus’ and
Beaver’s opinions that Windom suffered from organic brain damage and mental
illness, he would have introduced their testimony at the penalty phase in order to
show that Windom was acting under an extreme mental and emotional disturbance
when he committed the killings, even if this testimony opened the door for the
prosecution to introduce damaging evidence that Windom dealt drugs, that Davis
was rumored to have been sleeping with Johnnie Lee, and that Johnnie Lee owed
Windom drug money. Leinster believed the jury should have been allowed to
consider Windom’s brain damage, but Leinster did not know about it. According
to Leinster, the only factor suggesting possible brain damage or mental illness was
23
the nature of the acts themselves. Leinster’s personal interactions with Windom
would not have “tipped [him] off” because Windom was “subdued” and “was not
highly emotive.” Id. at 845-46. Leinster thus did not suspect that Windom was
mentally impaired in any significant way. Id. at 846. Finally, with respect to
Windom’s claim that Leinster conceded the state’s case for death during his
penalty-phase opening and closing statements, Leinster testified that he was
concerned about losing credibility with the jury if he challenged the first-degree
murder convictions.
Kurt Barch testified that he assisted Leinster in Windom’s 1992 trial and
was tasked with developing information about Windom’s background to be used
during the penalty phase. After speaking to some of Windom’s family members
and several Winter Garden residents, he believed that further investigation should
be undertaken, but was advised that he would have more success eliciting
information if he sent a black person into the community to talk to the residents.
He explained this to Leinster and asked Leinster to hire an investigator, but
Leinster never did.
Barch further testified that he learned from Windom’s mother and sister
about the car accident Windom was in when he was sixteen and followed up with
the doctor who had treated Windom. The doctor told Barch that Windom had not
24
suffered any long-term injuries as a result of the accident. Barch indicated that he
did not consult with Dr. Kirkland after discovering this information because he
believed Leinster was handling the mental health issues.
Finally, Barch explained that he had no responsibility for making tactical or
strategic decisions and that it was Leinster’s decision not to call any witnesses
during the penalty phase. According to Barch, Leinster feared that if he called
witnesses to testify that Windom was a good and charitable man, this testimony
would open the door for the prosecution to introduce testimony that Windom
earned a living gambling and selling drugs and was under investigation for drug-
dealing. Barch believed Leinster wisely decided to present evidence of Windom’s
good character to the judge rather than to the jury.
Robert Norgard, a criminal defense attorney since 1981, testified that by
1992 it was clearly recognized under then-prevailing professional standards that in
order to prepare a capital defense competently, an attorney should perform an
extensive investigation of the defendant’s complete life history that is not limited
only to statutory mitigating factors. The professional standard of care also required
a defense attorney to utilize a confidential mental health expert to assess whether
there might be a basis for an insanity defense. To investigate an insanity defense
properly, however, the attorney should not rely merely on the mental health expert,
25
but rather engage in a “holistic overall approach” that includes talking to “life
history witnesses” to determine whether there was any prior indication of mental
illness or decomposition; talking to and/or deposing any persons who saw the
defendant at the time of the crimes to ascertain whether there was a change in the
defendant’s behavior; and obtaining school and medical records. C17 at 991-92.
Norgard indicated that it is the attorney’s obligation and responsibility to then
provide the mental health expert with all of the information he has gathered so that
the expert can more carefully and accurately assess whether the defendant suffers
from a mental defect or illness. The attorney should also educate the expert
regarding mitigation – both statutory and non-statutory – during the penalty phase,
and his failure to do so constitutes incompetence.
Norgard conceded that there may be a valid tactical reason for presenting
mitigating evidence only to the judge and not to the jury. Norgard opined that an
effective attorney would first ask the trial judge to rule on whether or not a
particular piece of mitigating evidence would open the door to the introduction of
negative information.
Jeffrey L. Ashton, the assistant state attorney who prosecuted Windom’s
case, testified that in preparing for trial, he discovered facts that he believed had a
bearing on Windom’s motive for the killings, to wit, his involvement in a large-
26
scale drug-trafficking enterprise. He stated that there was an ongoing federal task
force investigation, dubbed “cookie monster,” into a crack-cocaine sales operation
out of Winter Garden, which had resulted in several indictments. Id. at 1058.
According to the information Ashton had received, Windom had been running the
operation with Kenny Thames and one of the three victims. Ashton indicated that
he was aware, based on the investigation, that Davis had been talking to law
enforcement and that Mary Jackson had confirmed that Windom was concerned
that Davis was an informant against him.6 Ashton further testified that he “made
[it] clear to everybody,” including Leinster, that had the defense called a mental
health expert to testify during the penalty phase, he would have presented
everything in Windom’s background that was unfavorable, including prior arrests
and crimes, for the jury to consider in deciding how much weight to give any
mitigating factor. Id. at 1064-65, 1079-80. According to Ashton, Leinster’s
decision not to call Dr. Kirkland or another mental health expert during the penalty
phase made it impossible for the state to introduce this damaging evidence to the
jury. Id. at 1080.
6
Ashton testified that the decision was made not to prosecute Windom federally because
that would require complex drug involvement allegations, whereas Windom could be tried in
state court for premeditated murder without the prosecution having to prove any of the drug-
related crimes.
27
2. Order on Rule 3.850 Motion
The state post-conviction court first found that Leinster knew about
Windom’s difficult background, including that Windom had suffered head injuries
at birth and as a teenager, and made a strategic decision not to mount a mitigation
defense during the penalty phase because he did not want to open the door to the
prosecution offering evidence of Windom’s involvement in “a violent world of
drug dealing.” R2-23, Appendix to State’s Habeas Response, Appx. C26 (“C26”)
at 2646. Faced with the possibility that the prosecution would introduce rebuttal
evidence of Windom’s drug dealing, Leinster made a reasonable strategic decision
to argue to the jury in the penalty phase that Windom seemed crazed and not like
himself on the day of the shootings.
The court found that Windom was not prejudiced by Leinster’s failure to
present mental health mitigating evidence in any event because, when weighed
against the effect of potentially devastating rebuttal testimony showing that
Windom shot his victims because he believed they were informants or owed him
drug money, the beneficial effect of Drs. Pincus’ and Beaver’s mitigating
testimony would have been negligible. In finding further that the doctors’
testimony was of limited value, the court noted that “their opinions were, at least in
part, based on facts not entirely supported by the evidence,” because while they
28
concluded that Windom had no plan to do what he did and that the killings were
the result of a series of chance encounters, the evidence adduced at trial and the
evidentiary hearing “suggest[ed] that the first three persons were shot over drug
money and in revenge for Mr. Windom’s belief that these people were police
informers.” Id. at 2636. In fact, the court found,
[b]oth doctors seemed to have ignored Mr. Windom’s own
statements on the day of the murders, which would seem to belie
Dr. Pincus’ conclusions that these murders were merely a series
of chance encounters with Mr. Windom acting out of momentary
impulse . . . The totality of the circumstances surrounding these
events suggest[s] to me in no uncertain terms that Mr. Windom’s
actions were knowing and premeditated.
Id. at 2640-41. Further, the court pointed out, both doctors
based their finding of brain damage, at least in part, upon Mr.
Windom’s history as related by himself and his family. Now,
some nine years after the fact, Mr. Windom and his family relate,
in graphic detail, Mr. Windom’s difficulties following his fall to
a concrete floor quite literally from his mother’s womb and a
rollover traffic accident at the age of 16. While there is a wealth
of evidence to suggest that Mr. Windom suffered from low IQ,
depression, and a bipolar disorder, there is virtually no evidence
to suggest that Mr. Windom had any trouble functioning prior to
the date of these murders. Virtually no medical records existed
to verify either of the head injuries now claimed by Mr.
Windom. Mr. Windom’s family says that after his vehicle injury
at the age of 16, he became more paranoid and failed to interact
much with anybody. This appears to be a part of what the doctors
based their conclusions upon. Yet in the evidentiary hearing,
Mr. Windom’s family testified that prior to this event, he was
well-groomed, affable, and took pride in his appearance. One
story seems to contradict the other.
29
Id. at 2638-39.
The court also noted that in formulating their opinions, the doctors were
either unaware of, or ignored, Windom’s lifestyle and the “violent social setting
within which Mr. Windom lived at about the time the shooting occurred,”
including that Windom had himself been previously shot in a drive-by shooting,
his house had been ransacked, he had been arrested a few months before the
murders, and his drug sales partner had been tortured and killed shortly after the
murders. Id. at 2640-42. Had the doctors taken into consideration these realities,
“they might have believed that Mr. Windom’s ‘edgy’ demeanor was more likely a
realistic assessment of the setting in which he lived, rather than a product of
irrational paranoia or delusion.” Id. at 2640. According to the court, the context
within which Windom committed his crimes thus showed that “Windom’s acts
were arguably more a product of the drug culture within which he lived, than any
mental infirmity.” Id. at 2642.
On the other hand, the court found, the testimony of Dr. Merin was “more
logically based [on] and consistent with the facts.” Id. at 2641. Given the
inconsistencies between the doctors’ testimony and the record facts, especially
when weighed against the more credible testimony of Dr. Merin – which did not
suggest that Windom was suffering from brain damage or mental impairment at the
30
time of the offenses – the court concluded as follows:
[t]here is no reasonable probability that the guilt phase
would have resulted in a different outcome if experts such as Dr.
Pincus and Dr. Beaver had been prepared and called by Mr.
Leinster. Their conclusions seemed contrived, and were based
upon speculation about Mr. Windom’s state of mind on the day
of the shooting. Their conclusions ignored much of the trial
record evidence of Mr. Windom’s statements on the day of the
shootings which indicated that he knew what he was doing and
had motives for his shooting the victims.
Id. at 2641. Finally, the court concluded that the prosecution’s potential rebuttal
evidence that Windom successfully ran a lucrative illicit drug enterprise not only
would negate a finding of brain damage, but would suggest that Windom in fact
had a much higher level of intellectual functioning.7
With respect to Windom’s claim that defense counsel conceded aggravating
factors during the penalty phase, the post-conviction court found that
Mr. Windom had already been convicted of first-degree
premeditated murder, and Mr. Leinster was faced with a daunting
task . . . . It would have strained his credibility, thereby
contributing to the difficulty of his task, to argue the verdict was
unjust to the same jury which would be imposing a sentence. It
was a reasonable trial strategy for Mr. Leinster to be realistic
7
While the court agreed that Leinster should have filed a motion in limine asking the
judge to rule on whether mitigation would open the door to this negative evidence, it found that
even if Leinster had filed such a motion, he would not have prevailed because no judge would
allow mitigation evidence suggesting brain damage and an inability to function independently
without also allowing rebuttal evidence suggesting that the defendant was a successful drug
dealer, had a motive for killing his victims (who were police informants and interfered with his
drug operation), and had a premeditated design to kill those victims as explained to witnesses
before the murders.
31
about the facts of the case in order to restore a measure of
credibility to the defense.
Id. at 2651. The court further found that the record demonstrated that Leinster
“argued vigorously against the death penalty in general and argued that executing
Mr. Windom would be just another act of murder.” Id.
After analyzing the remainder of Windom’s claims, the court reiterated that,
even if Windom could show that trial counsel’s representation was unreasonable
under prevailing professional norms, his motion nevertheless was due to be denied
because he failed to establish that he suffered any actual prejudice as a result of
counsel’s deficient performance. Specifically, the court concluded that:
In this court’s review of all of the evidence and testimony
presented, it is unable to determine that there is a reasonable
probability that the outcome of the trial would have been
different had the prejudicial acts and omissions complained of
not occurred. In other words, Mr. Windom is unable to prove the
second prong (prejudice) of Strickland. I acknowledge that
several of the acts and/or omissions complained of are troubling.
Mr. Windom’s argument that prior counsel made only a minimal
attempt, just before the trial, to investigate and prepare available
mitigating evidence certainly has some merit. Collateral
counsel’s legal capital expert, Mr. Norgard, testified that it was
appropriate to do an extensive investigation of a person’s life,
with an expenditure of up to 500 hours of time on this element.
Collateral counsel is correct when it argues that the time spent
investigating by trial counsel did not even approach that
milestone. Even so, this would not have been enough. While
there is certainly some evidence to support many of these
allegations, none of it provides proof by a preponderance that
trial counsel was ineffective . . . . It certainly did not provide
32
proof by a preponderance of the evidence that Mr. Windom
suffered prejudice as a result of trial counsel’s alleged
ineffectiveness.
Defendant’s trial attorney faced almost insurmountable
evidence that Mr. Windom shot five people in a premeditated
manner. Mr. Windom made statements to a credible witness,
Jack Luckett, who indicated that he had more than one motive to
kill Johnnie Lee, his first victim. Mr. Windom also told Mr.
Luckett that he would see him in the papers, indicating that he
knew the probable outcome of shooting someone in broad
daylight. Mr. Windom then obtained the firearm, went to a Wal
Mart and purchased ammunition, and shot Mr. Lee. At the point
in time he shot Mr. Lee, Mr. Windom made a statement which
suggested a motive which matched that which he had told Mr.
Luckett earlier. Mr. Windom then shot four additional persons
with sufficient time between each shooting to consider the nature
and consequences of his acts. Before he shot the third victim,
Kenny Williams, Mr. Windom took time to reload his gun. This
gave him even more time to consider the nature and
consequences of his shooting Mr. Williams and his last victim,
Mary Lubin. While he was shooting Mr. Williams, Mr Windom
again made a statement which indicated his motive for doing so,
to wit, that he did not like police informants. This matched the
fact that Mr. Windom was facing drug charges rising out of cases
in which police had used informants close to Mr. Windom.
Before he shot his last victim, Mr. Windom made a statement
that he knew what he had done (“I shot Johnnie Lee”), and acted
as if he knew this action was wrong (putting his gun up to his
own head). Mr. Windom’s actions were consistent with other
evidence introduced at the evidentiary hearing which suggested
that his shootings were consistent in character and motivation
with similar crimes committed by others who shared his values
and lifestyle as a drug dealer.
There was also evidence that his trial attorney, Mr.
Leinster, was familiar with this environmental setting, and knew
the prosecutor was also familiar with it. Thus, Mr. Leinster
33
adopted a strategy designed to keep the defendant’s lifestyle out
of evidence at the guilt and penalty phases. Ultimately, Mr.
Leinster’s strategy failed to win over the jury or the sentencing
judge. It is certainly clear that another route could have been
taken by defense counsel at the guilt and penalty phases; that
currently suggested by collateral counsel. Having now heard that
evidence which could have and would have been presented with
a more thorough investigation, and with medical witnesses
testifying about Mr. Windom’s brain damage, I am unable to
envision a different outcome.
Given these facts, Mr. Windom has failed to prove that his
attorney was ineffective, or that a different result would have
been obtained either at the guilt or penalty phases, even if Mr.
Leinster had acted as defendant now claims that he should have.
At the evidentiary hearing, expert medical witnesses failed to
prove a reasonable probability that a mental health status defense
would have been successful at either phase of the trial. Their
conclusions were unpersuasive, and ignored the ample evidence
that Mr. Windom had thought over his reasons for shooting his
victims.
Id. at 2665-67.
On appeal, the Florida Supreme Court upheld the post-conviction court’s
finding that penalty-phase counsel was not deficient for failing to present the
mental health experts’ testimony and the testimony of Windom’s family members
regarding Windom’s impoverished upbringing and the two head injuries he
sustained as a child. See Windom v. State, 886 So. 2d 915, 928 (Fla. 2004) (per
curiam). It reasoned that the evidence the state would have offered in rebuttal
greatly outweighed any value of the mental health expert and lay witness testimony
34
and “would have directly countered any assertion of brain damage by showing that
Windom was capable of running a successful drug enterprise and that his everyday
functioning was not impaired.” Id. Accordingly, it found that Leinster made a
reasonable tactical decision not to present the doctors’ and family members’
testimony in order to prevent the jury from hearing this damaging rebuttal
evidence. See id.
With respect to trial counsel’s alleged concession of the state’s case for
death, the Florida Supreme Court found that Leinster’s testimony at the evidentiary
hearing made clear that he made a strategic decision to focus his efforts on
conveying to the jury that Windom was not acting like himself on the day he
committed the murders and did not deserve the death penalty. See id. at 929. The
court further agreed with the post-conviction court’s finding that Windom was not
prejudiced by Leinster’s remarks because the sentencing record demonstrated that
“[Leinster] argued vigorously against the death penalty in general and argued that
executing Mr. Windom would just be another act of murder.” Id.
D. Federal Habeas Petition
Windom filed the instant § 2254 petition for a writ of habeas corpus in the
district court on 14 September 2004, reasserting his claim that penalty-phase
counsel was defective for (1) failing to call Drs. Pincus and Beaver as mental
35
health experts to testify that he suffered from mental illness and organic brain
damage; (2) failing to call lay witnesses to support the findings of the mental
health experts and to testify as to non-statutory mitigation, including his
background; and (3) conceding the state’s case for aggravation by stating, inter
alia, that Windom “[didn’t] deserve pity. . . . I agree with [the prosecutor], it was
cold,” and reminding the jury that “You made your decision, it wasn’t too tough.
Broad daylight, what can you say? I would have to be the firm of Christ and
Houdini to have made anything out of this other than what it clearly was.” R1-1 at
11-22, 43. Windom argued that in making these remarks, failing to present
mitigating evidence, and indicating that no mitigation existed, defense counsel
implicitly urged the jury to return a death recommendation and thereby abandoned
his role as an advocate.
District Court Order on § 2254 Petition
a. Failure to Investigate and Present Statutory and Non-statutory
Mitigation Evidence8
The district court first rejected Windom’s claim that the state court’s
decision was contrary to clearly established law because it failed to apply the
Supreme Court’s ruling in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527
8
The district court found that although Windom agreed to waive the presentation of
mitigation evidence to the jury, he did not waive the presentation of mitigation evidence to the
judge. We agree.
36
(2003), which, Windom argued, was controlling. The district court found that
Wiggins was distinguishable because the aggravating circumstances in Windom’s
case were “extremely strong.” R3-32 at 39. Unlike the mitigating evidence at
issue in Wiggins, which included that the petitioner had suffered severe privation
and abuse at the hands of his alcoholic mother and had been physically abused,
sexually molested, and repeatedly raped during his years in foster care, and which
was untainted by any prior record of misconduct by petitioner, the mitigating
evidence Windom asserts should have been presented in his case had a “‘double
edge.’” Id.; see Wiggins, 539 U.S. at 535, 123 S. Ct. at 2542.9 The district court
9
We agree with the district court that Wiggins does not control the outcome of this
appeal. In Wiggins, the Supreme Court had to decide whether counsel conducted a reasonable
investigation into the petitioner’s background before deciding not to introduce mitigating life
history evidence during the penalty phase of petitioner’s capital murder trial. 539 at 516, 523,
123 S. Ct. at 2532, 2536. The Court clarified that under Strickland “a cursory investigation”
does not “automatically justif[y] a tactical decision with respect to sentencing strategy,” and that
when deciding whether counsel exercised reasonable professional judgment under the first
Strickland prong, the relevant inquiry is not whether counsel should have presented a mitigation
case, but rather, “whether the investigation supporting counsel’s decision not to introduce
mitigating evidence . . . was itself reasonable.” Id. at 522-23, 527, 123 S. Ct. at 2536, 2538.
Disagreeing with the state court’s finding that counsel was not ineffective because they made a
strategic decision to focus their efforts on arguing that the petitioner was not directly responsible
for the murder, the Court held that “counsel abandoned their investigation of petitioner’s
background after having acquired only rudimentary knowledge of his history from a narrow set
of sources” and therefore, their “alleged choice” not to present a life history mitigation defense,
inasmuch as it was based on an unreasonable investigation, constituted deficient performance.
Id. at 524, 527, 123 S. Ct. at 2537-38. The Court further held that the lack of aggravation,
coupled with the strength of the mitigating evidence, rendered defense counsel’s failure to
conduct an adequate investigation prejudicial. Id. at 536-38, 123 S. Ct. at 2543-44. In this case,
however, we find, for the reasons discussed in more detail below, that even if counsel’s
investigation into a mitigation defense was unsatisfactory under the standards set forth in
Strickland and reaffirmed in Wiggins, the existence and weight of aggravating factors, coupled
with the relative weakness of the mitigating factors, nevertheless compels a finding of no
37
further found that the state courts’ decision did not involve an unreasonable
application of the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984).10 The district court agreed with the state post-conviction court
that the state’s case for aggravation was virtually unassailable in light of the
overwhelming evidence of premeditation, and that the mitigating evidence of
Windom’s brain damage and mental illness would have been greatly diminished by
the state’s rebuttal evidence of Windom’s drug dealing. Because nothing in the
record or in Windom’s submissions suggested that the state courts’ factual findings
in this regard were unreasonable, Windom failed to rebut the presumption of
correctness accorded those findings.
b. Trial Counsel’s Penalty-Phase Opening Statement and Closing
Argument
The district court first concluded that the state courts’ finding that Leinster’s
prejudice.
10
The district court noted that while the “key” to the state courts’ decision that penalty-
phase counsel was not ineffective was their finding that counsel made a strategic decision not to
mount a mitigation defense in order to prevent the jury from hearing evidence of Windom’s
involvement in drug-dealing, “Leinster could not have had similar concerns regarding the judge
hearing evidence of drug dealing[,] as Leinster presented mitigation evidence to the judge that
did open the door to certain drug evidence.” R3-32 at 31, n.10. Therefore, according to the
district court, “Leinster’s failure to present available mitigation evidence to the judge regarding
Windom’s difficult upbringing and intellectual and mental health issues [could not] be attributed
to strategy.” Id. The court acknowledged that “a deficiency analysis [was] unnecessary to the
resolution of this claim” in light of its finding that Windom was not prejudiced by counsel’s
performance, but indicated that “[it] ma[de] these observations to again stress that it does not
condone the roughshod approach taken by Windom’s counsel....” Id.
38
comments, when considered in context, “reflect[ed] an acceptable effort to regain
credibility with the jury,” was a reasonable application of the first prong of
Strickland. R3-32 at 46. The district court further agreed with the state courts’
finding that Leinster did not concede a lack of mitigation, noting that the record
showed that Leinster made a “valid argument that the jury should find the
mitigating circumstance of extreme mental or emotional disturbance based upon
testimony of the State’s own witnesses who described Windom on that day as
different from the way he had been all of his life.” Id. at 47. The district court
disagreed, however, with the state courts’ conclusion that Leinster’s concession of
the existence of CCP constituted a “reasonable trial strategy . . . to be realistic
about the facts of the case in order to restore a measure of credibility to the
defense.” Id. (quotation marks and citation omitted). Noting that there could have
been no conceivable benefit to trial counsel conceding one out of only two
aggravating circumstances on which the jury was instructed, the court concluded
that Leinster’s concession that CCP applied “‘by definition’” reflected an “obvious
misapprehension of the law” and therefore could not be “a reasonable” strategy.”
Id. at 48. Nevertheless, the court found, the state courts’ finding that Windom was
not prejudiced by Leinster’s improper concession of the CCP aggravator was not
an unreasonable application of Strickland and thus Windom was not entitled to
39
relief.
II. DISCUSSION
On appeal, Windom argues that the state court’s decision that Leinster’s
performance was constitutionally adequate was erroneous because it rested upon
the factually flawed premise that the state would have presented rebuttal drug
evidence. He asserts that the only evidence of Windom’s drug-dealing activity and
alleged motive for the killings was Ashton’s testimony at the post-conviction
evidentiary hearing and that the state offered no other evidence of his drug-dealing
ventures. Windom also asserts that if Ashton had in fact had evidence that the
killings were motivated by Windom’s involvement in drug-dealing activities, he
could have introduced this evidence without the defense first opening the door. He
further points out that had there been evidence that these crimes were related to
Windom’s drug activity, the case would have proceeded in federal court under the
federal death penalty statute.11
Windom further challenges the state courts’ finding that he was not
prejudiced by Leinster’s failure to call mental health experts because their
11
We reject Windom’s assertion that the state courts’ decision improperly ignored
Leinster’s own admission of deficient performance at the evidentiary hearing. Because the
adequacy of an attorney’s performance is measured against an objective standard of
reasonableness, the fact that trial counsel admits that his performance was lacking is of little, if
any, consequence. See Chandler v. United States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) (en
banc).
40
testimony lacked credibility. He asserts that the experts were aware of Windom’s
alleged drug activity and violent social setting, and, in any event, that the courts
failed to explain how ignorance of Windom’s drug-related activities undermined
their credibility. Windom contends that the courts also erroneously found that the
experts ignored Windom’s statements on the day of the killings, arguing that both
testified that they were aware of these statements and considered them in
formulating their opinions. Windom further asserts that the state and district courts
gave undue weight to evidence of Windom’s drug activity in finding a lack of
prejudice because there was so little actual evidence of such activity. Finally,
Winsom contends that the district court failed to assess all of the mitigation
presented by Windom because it cited only brain damage, mental illness, and
charitable acts, and failed to weigh the fact that Windom was physically abused
and raised in poverty. Id. at 25.
As to his second claim, Windom asserts that the state and district courts
misconstrued his argument as one challenging Leinster’s decision not to argue
innocence when in fact his argument was that Leinster conceded CCP and the
justification for a death sentence. Conceding the state’s case for aggravation could
not be reasonable strategy under any circumstance, he argues, and therefore, his
remarks were unnecessary to gain credibility with the jury. Because Leinster never
41
asserted that Windom was innocent, he contends, there was no reason to regain
credibility. In any event, even if gaining credibility were necessary, conceding the
existence of an aggravating factor was not an appropriate way to accomplish such a
goal. Finally, he asserts, Leinster only vaguely referenced the statutory mental-
health mitigator, never asserted that it applied, and never argued that it, or any
other mental health mitigator, existed.
Because Windom filed his federal habeas petition after 24 April 1996, this
case is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under AEDPA’s “highly deferential standard for reviewing state
court judgments,” a federal court may not grant habeas relief on claims previously
adjudicated on the merits by a state court unless the state court adjudication
resulted in a decision that was “(1) contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”
McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1255 (11th Cir. 2009) (quotation
marks, alterations, and citation omitted); 28 U.S.C. § 2254(d).
A state court decision is “contrary to” clearly established federal law if it
“applies a rule that contradicts the governing law set forth in [Supreme Court]
42
cases” or “confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to [the Court’s].”
Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000). If the state
court decision is not contrary to clearly established federal law, the reviewing court
must then determine whether the state court decision was an “unreasonable
application” of clearly established federal law. Id. at 413, 120 S. Ct. at 1523. A
state-court decision involves an unreasonable application of federal law where “the
state court identifies the correct governing legal principle . . . but unreasonably
applies that principle to the facts of the prisoner’s case.” Id. It is not sufficient that
the state court’s application was incorrect; the misapplication must also be
objectively unreasonable. See id. at 410-11, 120 S. Ct. at 1522. A state-court
decision also involves an unreasonable application of federal law where the state
court “either unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” Id. at 407, 120 S. Ct.
at 1520.
Even if the state court’s decision was neither contrary to nor an unreasonable
application of clearly established federal law, the district court may grant habeas
relief if the state court’s decision “was based on an unreasonable determination of
43
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). However, the state court’s factual determinations are
presumed correct and the petitioner can rebut this presumption only with clear and
convincing evidence that the state court’s factual determinations were erroneous.
See 28 U.S.C. § 2254(e)(1). “[T]he statutory presumption of correctness applies
only to findings of fact made by the state court, not to mixed determinations of law
and fact.” Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001).
A defendant claiming ineffective assistance of counsel in violation of the
Sixth Amendment must demonstrate that: (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the outcome of the proceedings. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.” Id. We
have observed that under the exacting rules and presumptions set forth in
Strickland, “the cases in which habeas petitioners can properly prevail on the
ground of ineffective assistance of counsel are few and far between.” Waters v.
Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quotation marks and
citation omitted).
Because the failure to demonstrate either deficient performance or prejudice
44
is dispositive of the claim against the petitioner, “there is no reason for a court
deciding an ineffective assistance claim to . . . address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. Accordingly, we may consider whether the
petitioner suffered prejudice as a result of counsel’s alleged errors without first
evaluating the adequacy of counsel’s performance. See id.; see also McClain v.
Hall, 552 F.3d 1245, 1251 (11th Cir. 2008) (“We may decline to decide whether
the performance of counsel was deficient if we are convinced that [the petitioner]
was not prejudiced”). In fact, the Supreme Court has made clear that “[t]he object
of an ineffectiveness claim is not to grade counsel’s performance” and therefore,
“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
A. Failure to Investigate and Present Mitigating Evidence
We need not determine whether counsel’s limited investigation into
Windom’s background and mental health constituted deficient performance under
the first prong of Strickland because we conclude that, even assuming counsel
performed deficiently, Windom was not prejudiced thereby.
Under the prejudice prong of the Strickland analysis, our inquiry is “whether
45
there is a reasonable probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating circumstances did
not warrant death.” Id. at 695, 104 S.Ct. at 2069. In conducting our review, we
must “reweigh the evidence in aggravation against the totality of available
mitigating evidence.” Wiggins, 529 U.S. at 534, 123 S. Ct. at 2542. When
balancing the aggravating and mitigating factors, we presume the state court’s
findings of fact to be correct. Porter v. Att’y Gen., 552 F.3d 1260, 1269-70 (11th
Cir. 2008) (per curiam).
Prior to imposing sentence, the trial judge heard evidence that Windom was
charitable, was a good father, saved his sister from drowning, and prevented a
violent encounter. The question we must answer is whether, when weighed against
the aggravating circumstances – CCP and previous conviction for a capital offense
or violent felony with regard to the murder of Lee, and previous conviction for a
violent felony or capital offense with regard to the murders of Davis and Lubin –
this evidence, in combination with the mitigation evidence presented by collateral
counsel during the evidentiary hearing, would have precluded imposition of the
death penalty. See Wood v. Allen, 542 F.3d 1281, 1310 (11th Cir. 2008) (in
evaluating prejudice, the court “must consider the total available mitigation
evidence as adduced pre-trial, at trial, and at the [post-conviction] hearings”).
46
At the Rule 3.850 hearing, Drs. Pincus and Beaver testified that Windom
suffered from organic brain damage and mental illness, was of low intelligence,
and was not capable of appreciating the criminality of his conduct at the time he
committed the murders. Windom’s family members testified that he was dropped
on his head on a concrete floor at birth and was hospitalized with a head injury
after being in a car accident at age sixteen. They also testified that Windom had a
difficult and impoverished upbringing, during which he was physically abused by
his father and bullied by his classmates, and that he had been behaving erratically
in the weeks leading up to the shootings.
The state post-conviction court found that the outcome of the penalty phase
proceedings would not have been different had Leinster presented this mitigating
evidence given the overwhelming evidence of premeditation, including that
Windom: (1) told Luckett he would read about [Windom] in the papers; (2)
obtained a gun and purchased ammunition at a local Wal Mart; (3) shot three
people with sufficient time between each shooting to consider the consequences of
his actions; (4) reloaded his gun before shooting Williams; and (5) stated, while
shooting Williams, that he did not like police informants. The state court noted
further that the expert medical witness testimony presented by collateral counsel at
the evidentiary hearing did not establish that a mental health status defense would
47
have been successful because the experts’ “conclusions were unpersuasive, and
ignored the ample evidence that Mr. Windom had thought over his reasons for
shooting his victims.” C26 at 2667.
The state post-conviction court’s conclusion that Windom was not
prejudiced by Leinster’s failure to investigate and present a mental health
mitigation defense was not objectively unreasonable.12 As the state court pointed
out, Drs. Pincus’ and Beaver’s opinions were inconsistent with portions of the
record evidence, lacked a medically verifiable foundation, e.g., hospital records
confirming that Windom in fact suffered head trauma leading to brain damage, and
were largely controverted by Dr. Merin’s testimony that Windom was not suffering
from any mental impairment when he committed the murders. It would therefore
strain reason to conclude that the doctors’ testimony would have had much impact
on the judge’s choice of sentence. See Hannon v. Sec’y, Dep’t of Corr., 562 F.3d
1146, 1157 (11th Cir. 2009) (petitioner not prejudiced by counsel’s failure to
investigate petitioner’s alleged mental health impairment where there was contrary
evidence presented by the experts). Rather, it is entirely conceivable, if not
probable, that the trial judge would have rejected Drs. Pincus’ and Beaver’s
12
In upholding the post-conviction court’s decision that Windom failed to establish an
ineffective assistance of counsel claim based on Leinster’s failure to present mitigating mental
health evidence, the Florida Supreme Court concluded that Leinster’s performance was not
deficient, and thus never addressed the post-conviction court’s findings with respect to prejudice.
48
testimony in favor of Dr. Merin’s conclusions to find that Windom did not suffer a
mental impairment that diminished his moral culpability for the crimes he
committed. See Waters, 46 F.3d at 1514-15 (where psychologist’s testimony was
contradicted by the opinion of the state’s expert and inconsistent with petitioner’s
conduct on the day of the murders, counsel’s failure to present the testimony was
not deficient performance because the psychologist’s “credibility probably would
have been undermined to such an extent that it would have rendered worthless the
testimony she did give for the defense”). It is also unlikely, given Dr. Merin’s
unequivocal testimony that Windom was capable of distinguishing between right
and wrong and appreciating the criminality of his conduct, that the trial judge
would have accorded any significant weight to the family members’ testimony that
Windom was behaving strangely in the weeks before the shooting as persuasive
evidence of a mental impairment.
With respect to the other mitigators Windom asserts should have been
presented, including that he was physically abused by his father, bullied by his
classmates, and raised in abject poverty, Windom offered no evidence that these
circumstances had any continuing effect on his ability, at the age of twenty-six, to
conform his conduct to the requirements of the law.
We also find that Windom’s background, though dysfunctional, was not so
49
adverse or atrocious as to create a reasonable probability that it would “have
influenced the [trial judge]’s appraisal of [Windom]’s moral culpability.”
Wiggins, 539 U.S. at 538, 123 S. Ct. at 2544 (quotation marks and citation
omitted). In Wiggins, the Supreme Court held that the mitigating evidence counsel
unreasonably failed to discover and present, including that: (1) the petitioner’s
mother was a chronic alcoholic and was physically abusive; (2) the petitioner and
his siblings were left home alone without food and were forced to beg for food and
to eat paint chips and garbage; (3) petitioner was hospitalized after his mother
intentionally burned him on a hot stove; (4) petitioner’s mother had sex with men
while petitioner was in the same bed; (5) petitioner was placed in foster care at age
six and was physically abused by his foster mother; (6) petitioner was raped and
molested by one foster father and gang-raped by the sons of another foster mother;
(7) petitioner was homeless after running away from one abusive foster home; and
(8) petitioner was allegedly sexually abused by a supervisor after entering a Job
Corps Program, was “powerful” and reflected “the kind of troubled
history . . . relevant to assessing a defendant’s moral culpability.” Id. at 516-17,
534-35, 123 S. Ct. at 2533, 2542. In view of the nature and extent of abuse and
deprivation to which Wiggins was subjected, the Court concluded that there existed
a reasonable probability that, had the jury been given the opportunity “to place
50
[Wiggins’] excruciating life history on the mitigating side of the scale, there [was]
a reasonable probability that at least one juror would have struck a different
balance.” Id. at 537, 123 S. Ct. at 2543; see also Williams, 529 U.S. at 398, 120 S.
Ct. at 1515 (finding prejudice where counsel failed to present evidence of
petitioner’s childhood, which was “filled with abuse and privation”); Williams v.
Allen, 542 F.3d 1326, 1342-43 (11th Cir. 2008) (finding prejudice where trial
counsel failed to discover mitigating evidence that petitioner suffered “an extreme
level of deprivation, both physical and emotional,” and was subjected to severe
beatings, which involved the use of deadly weapons and resulted in serious
injuries, “on a near constant basis”).
The mitigation evidence in this case, unlike the “powerful mitigating
narrative” told by the gruesome circumstances of Wiggins’ background, is far less
compelling in light of the number and method of the killings involved here.
Wiggins, 539 U.S. at 537, 123 S. Ct. at 2543. Moreover, any potential benefit to
be gained by presenting the relatively weak mitigating evidence in Windom’s case
would have been severely undercut by rebuttal evidence of his own misconduct,
specifically, his involvement in a large-scale drug-dealing operation. Cf. id.
(noting that counsel’s failure to present evidence of Wiggins’ disturbing
background was rendered even more prejudicial by the fact that Wiggins had no
51
record of violent conduct against which to offset the strong mitigating evidence);
Williams, 542 F.3d at 1343 (noting that the fact that the case was not highly
aggravated “[f]urther support[ed] a finding of prejudice”).
In sum, given the strength of the state’s case against Windom and the nature
of the crimes themselves, there is no reasonable probability that the jury would
have recommended, or that the judge would have imposed, a non-death sentence
even if they had been confronted with the mitigating evidence Windom asserts
Leinster should have discovered and introduced. See Payne v. Allen, 539 F.3d
1297, 1318 (11th Cir. 2008) (where “[t]he strength of the evidence of both
[petitioner’s] guilt and the aggravating nature of the crimes [was]
great[,] . . . mitigating evidence about [petitioner’s] childhood, family background,
and substance abuse would not have negated the aggravating nature of this
abhorrent murder proven beyond all doubt by the State”). Accordingly, we agree
with the district court that the state court did not unreasonably apply Strickland
when it found that the available mitigating evidence, taken as a whole, did not
outweigh the aggravating nature of Windom’s crimes and that Windom thus failed
to establish prejudice as a result of his counsel’s failure to investigate and present
mitigating evidence.
B. Penalty-Phase Counsel’s Opening and Closing Statements
52
The state courts’ finding that Leinster’s comments did not constitute
deficient performance was not an unreasonable application of the first prong of
Strickland. At the evidentiary hearing, Leinster testified that he made the
challenged remarks because he was concerned about losing credibility with the
jury if he disputed its first-degree murder conviction by arguing that Windom did
not act in a premeditated manner. As the district court pointed out, the Supreme
Court has recognized that counsel is not deficient for being candid about his
client’s crimes and unwilling to challenge the jury’s finding of guilt. See Florida
v. Nixon, 543 U.S. 175, 190-92, 125 S. Ct. 551, 562-63 (2004). Further, the record
does not support Windom’s assertion that Leinster conceded a lack of mitigation.
In fact, it shows that Leinster affirmatively argued for the existence of the statutory
mitigating circumstance of extreme mental or emotional disturbance at the time of
the offense. While Leinster noted that some of the mitigation factors “don’t make
any sense at all,” he stated that “some of them had a lot of bearing,” and reminded
the jury that several witnesses who observed Windom on the day of the murders
testified that Windom “[was] not who [they] had seen all his life. He was
crazy . . . [h]e wasn’t himself.” A1 at 96-97. Leinster further argued that “we
won’t ever know” what happened on the day of the murders inside Windom’s
mind, or “whatever bizarre configuration of relays took place that day that caused
53
him to do this,” because “nobody says today, I think I’ll go out and shoot four
people. Something happened, and that is all they called the doctor for.” Id.
The state court’s conclusion that Windom suffered no prejudice as a result of
Leinster’s remarks also was not objectively unreasonable. As noted above, given
the strength of the state’s case for aggravation and the brutal nature of Windom’s
crimes, we do not believe that a different closing argument would have resulted in
a lesser sentence or that Leinster’s remarks in any way undermined the reliability
of the jury’s death recommendation.
III. CONCLUSION
The district court correctly denied Windom’s petition for habeas relief as to
both claims of ineffective assistance of counsel. Given the aggravating nature of
Windom’s crimes and the state’s potential rebuttal evidence, we find there to be no
reasonable probability that the judge or the jury, even if confronted with all
available mitigating evidence related to Windom’s mental health problems,
troubled upbringing, or social background, would have concluded that this
evidence was of sufficient weight to preclude imposition of a death sentence.
Windom also failed to establish that trial counsel’s statements during opening and
closing arguments reflected an abdication of counsel’s duty of advocacy or, even if
they were improper, that he was prejudiced thereby. Accordingly, the judgment of
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the district court is AFFIRMED.
55