[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12416 ELEVENTH CIRCUIT
DEC 4, 2009
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-23327-CV-JEM
FREDERICK W. CUMMINGS,
Petitioner-Appellee,
Cross-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
Respondent-Appellant,
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 4, 2009)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
HULL, Circuit Judge:
Florida death row inmate Frederick W. Cummings1 petitioned the district
court, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. After review and
oral argument, we conclude that Cummings’s trial counsel did not provide
ineffective assistance in the investigation and presentation of mitigation evidence
at the penalty phase of Cummings’s murder trial. Thus, Cummings’s § 2254
petition must be denied.
I. BACKGROUND
A. Facts of the Crime
In Florida state court, Cummings was convicted of murdering his girlfriend
Kathy Good (after she obtained a restraining order against him) and of the armed
burglary of Good’s home. The Florida Supreme Court summarized how
Cummings broke into Good’s home and stabbed her repeatedly:
Fred Cummings-El dated the victim, Kathy Good, for a short period
and the two lived together for several months. After the relationship
ended, Cummings-El harassed Good and she eventually obtained a
restraining order after he assaulted her at a neighbor’s house. He then
made numerous verbal threats, such as: “Kathy, I’m going to kill you.
Kathy, I’m going to kill you[ ]”; and “I love her. If I can’t have her,
nobody [can] have her”; and finally “If I can’t have you, ain’t nobody
going to have you.”
1
Petitioner was born Frederick Wooden and later changed his name to F. W. Cummings.
Throughout the state direct and collateral proceedings, as well as during the present federal
habeas proceedings, Petitioner has been referred to inconsistently, sometimes as “Cummings,” at
other times as “Cummings-El,” and occasionally using his former surname of Wooden. In this
opinion, we refer to Petitioner by the name used on his § 2254 petition, Frederick W. Cummings.
2
Cummings-El broke into Good’s home in the early morning
hours of September 16, 1991, and stabbed her several times while she
was sleeping, killing her. Several people heard Good’s screams and
saw Cummings-El at the scene. Good’s eight year-old son, Tadarius,
was asleep in bed with his mother and awoke to see Cummings-El
“punching” his mother. Good’s twenty year-old nephew, Michael
Adams, was asleep on the floor of Good’s bedroom and saw
Cummings-El fleeing from the house. And Good’s mother, Daisy
Adams, confronted Cummings-El as he was leaving the bedroom.
Cummings-El, whose face was only one or two feet from Daisy’s,
shoved Daisy to the ground and ran. Good then staggered from the
bedroom and collapsed in her mother’s arms, saying, “Fred, Fred.”
Cummings-El v. State, 684 So. 2d 729, 730-31 (Fla. 1996) (“Cummings I”)
(brackets in original). In short, Cummings “armed himself with a knife, waited
outside Good’s home until she arrived . . . , broke into her house after she was
asleep, and attacked her in her sleep.” Id. at 731. Trial evidence showed that Good
received numerous stab wounds from Cummings, including defensive ones; was
conscious for several minutes after the attack; and died from the blood filling her
lungs – in essence, “she drowned in her own blood.” Id. On the date of the crime
(September 16, 1991), Cummings was 33 years old.
B. Pre-Trial Proceedings
Cummings was charged with first-degree murder and armed burglary. On
January 4, 1993, the state trial court conducted a pretrial hearing. Cummings’s
trial counsel Theodore Mastos informed the court that Cummings did not want to
present any mitigation evidence if he was convicted, and was refusing to provide
3
Mastos with mitigation-related information. Mastos and the State Attorney jointly
requested that the state trial court (1) conduct a colloquy with Cummings about his
desire not to present mitigation evidence, and (2) order a psychiatric evaluation to
ensure that Cummings’s decision not to present mitigation evidence was a knowing
and voluntary waiver rather than the product of a mental infirmity.
The state trial court conducted a colloquy. Cummings said he was not guilty
and did not want his family testifying for him:
When [Mastos told] me . . . that [if the] State finds me guilty they
were going to execute me, do I want to plead for my life?
Like I told Mr. Mastos, I’m not guilty of this charge.
Now, if you want to talk to my family members, he’s welcome
to. Now, when this go to trial and however the outcome may be,
which I’m not guilty of this case, whatever the outcome may be, I
don’t want my family standing up here pleading for something that
I’m not guilty for. I’m not guilty of this charge. Why should my
family have to stand up here to plead for my life? They don’t have no
evidence saying I killed nobody. The only thing they say is what
people say.
The state trial court informed Cummings that presenting mitigation would not be
inconsistent with maintaining his innocence and would not waive his right to
appeal his conviction. Cummings again told the court that he did not want to
present mitigation evidence. Cummings said he might as well be dead if the jury
found him guilty, as he did not want to sit in prison for life and he did not want his
family begging for his life:
4
What’s the difference between a life sentence and death? I’m not
guilty. There’s no difference. . . . I am not going to sit in no prison
for something I didn’t do the rest of my life. I might as well be dead
if you find me guilty of something I’m not guilty for.
So I’m not going [to have] my family beg for my life . . . . I
have children out there. I’m not going to have them begging for my
life.
The state trial court then explained to Cummings that it would order a
psychological evaluation to ensure Cummings’s decision was knowing and
voluntary, and that he was competent to make it. The state trial court explained
that it was ordering an evaluation “[b]ecause there’s very little down side risk” if
Cummings’s family testified in the penalty phase, and that it was not begging but
rather providing information for the jury “about you as a human being, as a father,
as a brother, as a son, as a person, so the jury has a better idea of who you are and
what’s happened to you during your life.” Cummings said he understood, but
Cummings again said that serving a life sentence in prison and being unable to do
anything for his children would be torture, and he would rather be dead:
THE DEFENDANT: You know, I understand fully what you are
saying. But when you’re locked up and you have children – I have
teen-age children. I don’t need to be hearing about they going
through these changes, they going through these changes. They are
locked up.
My daughter is going to be 16 years old. My baby is 10. My
daughter will be nine months old. You see what I am saying? When
these kids get big I’m sitting in prison with a life sentence. What can
I do for them? What can I provide for them? What are they going to
say, my daddy is in prison? I rather they say my father is dead. What
5
is the difference? What can I do for my child[?]
THE COURT: You could be available to get letters from them, to see
them.
THE DEFENDANT: That’s torture.
The state trial court then questioned Cummings about permitting an
investigation into mitigation evidence, and Cummings said Mastos could talk to his
family members:
THE COURT: Would you have any objection if your lawyer at least
were able to talk with family members to find out about you?
THE DEFENDANT: As I stated to him and told you, he can talk to all
my family members and who he wants to talk to.
THE COURT: And if he finds something that would . . . have benefit
for you, then I assume that he would be able to talk to you about that
first, so that there may be a possibility that maybe a week from now or
10 days from now Mr. Mastos might say something to you, believe it
or not, which may change your mind as to the second phase of the
trial.
I want him to at least be able to gather information so that he
can say to you, Fred, look, I know your feeling, but this is what I have
heard and according to the law this may be helpful for you.
How about that? Will he be able to do that at least?
THE DEFENDANT: Yes, sir.
THE COURT: All right.
[THE DEFENDANT:] As I said, I’m not guilty and I’m not going to
be found guilty, I believe.
Cummings informed the state trial court that he wanted to go to trial as soon as
possible.2
2
During the hearing, Cummings also indicated that he wanted to discharge Mastos as his
counsel because Cummings believed Mastos was working against him and had not been to see
him enough times. The state trial court stated that it had seen nothing showing Mastos was not
working in Cummings’s interest, and Cummings responded that Mastos had been trying to
6
The next day, Dr. Sanford Jacobson evaluated Cummings with regard to his
mitigation decision. Dr. Jacobson found that Cummings was competent and had an
acceptable appreciation of the charges against him, the nature of the legal process,
and the possible penalties he could incur. Dr. Jacobson further concluded:
With respect to [Cummings’s] feelings about family members
testifying in any sentencing phase if it were necessary, I can only state
that [Cummings’s] explanation does not appear to me to be irrational
or bizarre. It may not be in his best interest at this time but
[Cummings] might, if necessary, alter that opinion or view.
Additionally, Dr. Jacobson reported that, during his interview with Cummings,
Cummings “talked about his family and noted that he was the 7th of 12 children.
He described a good relationship with his mother and his siblings.” Cummings
reported he had used marijuana, alcohol, and cocaine, but no longer abused them,
was not dependent, and had no problems with drugs.
C. Penalty Phase
On January 25, 1993, the trial began. It lasted four days. The jury found
Cummings guilty of the first-degree murder of Kathy Good and the armed burglary
of her home. The state trial court recessed to permit Mastos and Cummings to
convince him to take a plea. Mastos responded that he had been diligently investigating the
case, visiting with Cummings, and providing him with information about his case. Cummings
reiterated that Mastos had been urging him continually to take a plea. Cummings stated that if
he could not have Mastos discharged, he wanted to go to trial. The state trial court declined to
discharge Mastos.
7
confer. Cummings’s family members, including at least two sisters, attended the
trial.
After the recess, Mastos indicated he was prepared to proceed with the
penalty phase because Cummings did not want to present any evidence.
Cummings told the state trial court he did not want to spend his life in prison, did
not care if he was sentenced to death, and wanted no mitigation evidence presented
on his behalf:
THE DEFENDANT: . . . [T]he people found me guilty of First Degree
Murder. What everybody wants is to see my family pay for it and
what’s the difference between a life and twenty-five years in prison or
in an electric chair. They’re looking for sympathy. You all got it.
You wouldn’t see no justice here. There is no need. I ain’t going to
beg. I never was a begg[a]r and ain’t going to start now.
THE COURT: Mr. [Cummings], it’s not a matter of begging anybody,
sir. It’s a matter [of] presenting information to people to help me.
THE DEFENDANT: . . . I don’t want to spend my life in prison. I’m
thirty-five years old. There’s a twenty-five year mandatory. Give me
a break. What’s the difference? What’s the difference? Who’s going
to take care of me for twenty-five years in prison? You’re telling me
that you want me to get up everyday knowing that my life is in prison
having to deal with the hustle and [bustle] in prison? That’s for a
fool. That’s like me saying have mercy on me. . . . I’m not going to
beg, your Honor.
One of Cummings’s sisters addressed the court, and Cummings objected to
her testifying for him, saying:
She cannot ask anything because it’s my right not to have my family
getting on the stand. I told my family from the start, when he came
with me over a year ago, I told him I don’t want my family begging
8
for nothing and I don’t want no tears in here from my family.
The state trial court asked Cummings’s sister whether “there [are] people who
know Mr. Cummings[], members of his family, that want to be here and talk to the
jury.” When his sister said yes, the state trial court re-set the penalty-phase hearing
for the following week. Cummings again objected, and reminded the court he had
been sent to the psychiatrist and found competent and that he had chosen not to
have his family members plead for him and he didn’t want his family testifying.
Mastos told the court that although Mastos “found it frustrating that [Cummings]
didn’t want [his family] involved,” Mastos “respect[ed] him and his opinion and he
articulates it well.”
The state trial judge responded that the only issue in the case at that time was
the sentencing decision that he would have to make, and “I . . . want to hear from
[Cummings’s] family.” The state trial court reiterated that “[a]s far as . . . this
Judge is concerned[,] I’m going to ask the jury [to reconvene next week and] I’m
going to suggest that [Cummings’s] family . . . contact Mr. Mastos between now
and then.” The state trial court added, “I’m going to be ready for the sentencing
phase . . . [unless] the State . . . find[s] any case law that will prohibit me from
doing so. This is not only for the jury’s benefit, but, quite frankly, for mine as
well.” Cummings again said he did not want his family begging for his life, and
9
the state trial court said that it “appreciate[d] that discussion, but at this point,
we’re going to proceed.” The state trial court set the penalty phase to begin five
days later.
The day before the penalty phase began, the State informed the state trial
court that it intended to present the testimony of Laura Friar, a records custodian
from the North Carolina Department of Corrections. Friar would testify about the
records of Cummings’s prior convictions and imprisonment in North Carolina for
two armed robberies. Although Friar brought Cummings’s North Carolina prison
file with her, Friar had notified the State that some portions of that file were not
public record and that she would not release those without a court order. Friar
informed the state trial court that the public portions of Cummings’s file included
conviction, parole, and prison disciplinary records; the sealed, non-public portions
included mental health records and records relating to Cummings’s dealings with
the parole commission.
The state trial court permitted the State to receive a copy of the public
portions of Cummings’s North Carolina file, but ordered that the non-public
portions were to be sealed and given only to Mastos for his review.
Mastos received the sealed, non-public records the next morning, when the
penalty phase began. He reviewed them when the court recessed at the close of the
10
State’s case. When the court reconvened, the state trial court asked Mastos
whether he would present any portion of it to the jury. Mastos said he would not,
because “there is no evidence whatsoever of any psychoses or psychological
problems that would affect a person’s behavior and I have had a chance to review
it and I will not be introducing anything from that.”
At the start of the penalty-phase hearing, Mastos addressed the state trial
court regarding mitigation evidence and advised that Cummings up to that point
would not let family members testify but now had “softened a little bit on that” and
would allow two sisters to testify. The state trial court asked Cummings directly
whether he would permit them at least to make a statement, and Cummings said he
would. Cummings’s four children were also at the penalty phase hearing, and
Mastos told the court “the boys and the daughter don’t wish to testify.”
The penalty phase commenced. The State presented evidence of
Cummings’s prior violent felony convictions: (1) one count of aggravated battery
with great bodily harm in Gadsden County, Florida; and (2) the two robberies with
a dangerous weapon in North Carolina.3 The State also called Good’s mother,
3
In 1984, a North Carolina court sentenced Cummings to a 14-year prison term for the
two armed robberies. In 1990, a Florida court sentenced Cummings to a 30-month prison term
for an aggravated battery on Ezzie Morgan. Mastos knew Cummings was also sentenced for
crimes in California, but the State did not obtain or submit evidence of those convictions or
sentences in time for use at the penalty phase.
11
Daisy Adams, and her nephew, Michael Adams. Daisy and Michael Adams
testified about Good’s suffering during the moments between the time Cummings
stabbed her and her death. After it rested its penalty-phase case, the State sought to
reopen its case to present the disciplinary record from Cummings’s North Carolina
prison files. The State Attorney told the court that the North Carolina files
contained “evidence of five violent acts” by Cummings while he was in prison
there.4 Mastos opposed the motion to reopen, arguing that that evidence was not
properly admitted. The state trial court ruled the prison disciplinary record was not
to be admitted and denied the motion to reopen the State’s case.
Cummings called as witnesses two sisters, Diane St. Fleur and Catherine
Covington. Both sisters testified Cummings was a loving and good father, was
honest, came from a large and supportive family, was protective of his family and
was not violent.
Specifically, St. Fleur testified that she was seven years older than
Cummings, and that their mother had six sons and six daughters, although three of
the sons had already died. St. Fleur testified that Cummings was born Frederick
Wooden (Wooden was their mother’s surname), but changed his name to F. W.
4
During the state postconviction proceedings, Mastos confirmed the North Carolina
prison records showed “a number of disciplinary violations that had been violent, fight[s] in
prison.”
12
Cummings so he would have both his mother’s and his father’s names. St. Fleur
testified that Cummings had four children, all of whom were present in the
courtroom: a fifteen-year-old daughter, and sons aged ten, thirteen, and fourteen.
St. Fleur then testified about Cummings’s character:
Q. I want you to tell the jury what kind of a man is your brother?
How does he treat members of his family for instance, let’s start
there. How does he treat the members of his family?
A. He has treated them fine. You know, he is protective of his
family, always [has] been, of his mother, his sisters, mother,
brothers and his children.
Q. How does he treat his children?
A. He treat[s] his children very good.
Q. Now during the last couple of years how would you
characterize your relationship with Fred?
A. We always have been close.
Q. Is Fred an honest person? . . . .
A. Yes.
Q. Is he a violent person?
A. I don’t think he is a violent person.
St. Fleur’s testimony then turned to the sentence to be imposed:
Q. Now Diane, we are here of course because the jury has to make
a recommendation as to what sentence the Court might impose
in this case. What would you like to say to the jury about this
penalty?
What would you like to tell these 12 people?
A. Well, I don’t believe in the death penalty. I know the jury
found him guilty, but I personally I don’t believe it.
Q. Well, we can’t argue that. The jury has made that finding but
as to a recommendation, do you want the jury to spare your
brother’s life?
A. Yes.
Q. Why? Is he a good person? Should they take that into account?
13
A. Yes. I think they should. You know he has four kids which I
have been taking care of those kids plus I have four more. It’s
kind of a lot on you when you are taking care of eight children
that are not yours and I feel like his life should be spared. My
mother, she is very sick. That’s why she couldn’t even come to
this trial you know. She had one slight stroke.
Q. So you are hoping that there comes a time when Fred can come
back and be with his loving family?
A. Yes.
Q. Would you characterize your family as a loving family, a close
knit family?
A. Yes. Very close.
Q. In fact, you have been here the whole time haven’t you during
this trial?
A. Yes.
Q. So what would you like the jury to do with this case? If you
could sit in that jury room, what would you say to these 12
people?
A. I would like for my brother[’s] life to be spared you know. You
know because if you take his life, you know you are going to be
taking more than him. . . . Because my mother, she can’t take
no more.
On cross-examination, St. Fleur stated that Cummings was the seventh
oldest of their mother’s twelve children, and the third-oldest son. The State asked
St. Fleur when was the last time she lived with Cummings full-time, and she didn’t
remember, but thought it was sometime in the 1980s. St. Fleur reiterated her
opinion that Cummings was not a violent person, but conceded that he had been
convicted of earlier crimes, including armed robbery. St. Fleur also repeated that
she did not believe Cummings was guilty of murdering Good. The State asked St.
Fleur about the relationships among members of her and Cummings’s family, and
14
she said they were close:
Q. Are you a close family? You and your brothers and sisters?
A. Yes.
Q. So your brother has always had the attention and affection of
the whole family, right?
A. Yes. My whole family, yes.
Q. So he was never abandoned by the rest of the family, was he?
A. No.
Q. He always had that support?
A. My mother raised –
Q. All of you?
A. Yes.
Although St. Fleur testified that Cummings always took care of his children, she
admitted on cross that either she or the mother of Cummings’s children cared for
them while he served prison terms in North Carolina and Florida.
Another sister, Covington, was Cummings’s second and final witness.
Covington testified that she was eight years older than Cummings and was his
oldest sister. Like St. Fleur, Covington testified that Cummings had good
character:
Q. . . . I want you to tell the jury what kind of a man is Fred.
I mean you . . . know[] him now as a brother, I want you to tell
the jury. How does he treat you as a sister?
A. As a sister Fred treats me very nice, nicely and also he is very
nice[] to all his family. Not just his family, to other people as
well.
Q. Is Fred a[n] honest man?
A. Very honest.
Q. Yes?
A. I think so.
15
Q. Is he a violent man?
A. I don’t think – not a violent person, no.
Q. I mean he has had some problems with law enforcement?
A. Yes, he has.
Q. He has gone to prison and we don’t dispute that, but the Fred
that you have known, have you ever seen him beating up
anybody or striking anybody?
A. Well actually, yes. Yes, when he was a little younger, with a
cousin, they just had like a little run in but other than that –
Q. So that was many, many years ago?
A. Yes. It’s been a while back.
When asked why the jury should spare her brother’s life, Covington said because
he was innocent:
Q. Hypothetically if you could sit around the table with the 12
members of the jury, what could you say to them in asking
them to spare Fred’s life?
Why should his life be spared?
A. Because to be truthful, I really don’t feel like Fred killed the
girl. . . .
Q. What about Fred?
Why should this jury vote to recommend life in prison as
opposed to taking his life in the electric chair?
A. Well, I don’t feel like Fred done it. I really don’t feel like Fred
killed the girl.
Covington testified that Cummings tried to be a good father to his children, though
he had been away from them at times, and had a good relationship with his
children. On cross-examination, Covington admitted that for most of the last ten
years, Cummings was not around his children because he was in jail. Covington
acknowledged that several of the crimes of which he was convicted involved
16
violence, but testified that she never saw him do such things.
Following the penalty-phase hearing, the jury recommended a death
sentence by an eight-to-four vote. The state trial court followed the jury’s
recommendation and imposed the death penalty.5 The state trial court found four
statutory aggravating circumstances: (1) a prior violent felony conviction; (2) the
murder was committed in the course of a burglary; (3) the killing was especially
heinous, atrocious, or cruel; and (4) the killing was committed in a cold, calculated,
and premeditated manner. See Fla. Stat. § 921.141(5) (1993) (listing potential
aggravating circumstances). The state trial court found no statutory or non-
statutory mitigating circumstances to exist. See id. § 921.141(6) (listing potential
mitigating circumstances). The court considered Cummings’s sisters’ testimony
that Cummings was undeserving of death because he was a loving father, came
from a close and supportive family, and was not a violent man, but rejected it. The
state trial court acknowledged that St. Fleur and Covington “testified from their
hearts,” but concluded that their “family portrait of the defendant isn’t based on
fact or in reality as reflected by the evidence of this case.”
D. Direct Appeal
Cummings appealed, arguing, inter alia, that the state trial court erred in: (1)
5
The state trial court also imposed a twenty-two-year sentence for the armed burglary
conviction.
17
striking two jurors for cause; and (2) finding the “heinous, atrocious, or cruel”
(“HAC”) circumstance applicable. The Florida Supreme Court affirmed.
Cummings I, 684 So. 2d at 731 (concluding the juror strike claim was not
preserved for review, and the HAC finding was proper because “[t]he record
contains voluminous evidence of [Good’s] suffering”).
E. Rule 3.850 Motion and Hearings
In May 1998, Cummings filed in the state trial court a Florida Rule of
Criminal Procedure 3.850 motion to vacate his convictions and death sentence.
The same Florida trial court judge presided over Cummings’s criminal trial and his
Rule 3.850 proceedings. In the context of Cummings’s state collateral
proceedings, we refer to the state trial court as the “Rule 3.850 court.”
Cummings amended his Rule 3.850 motion in June 1999. As amended,
Cummings’s Rule 3.850 motion contained eleven claims, including a claim that
Mastos was ineffective for not investigating and presenting mitigation evidence at
the penalty phase.
The Rule 3.850 court held a Huff hearing to determine the issues for which
an evidentiary hearing was required. See Huff v. State, 622 So. 2d 982 (Fla. 1993).
At that hearing, Cummings’s initial Rule 3.850 counsel Lee Weissenborn indicated
that Cummings still did not wish to cooperate with the investigation or presentation
18
of mitigation evidence. Weissenborn stated that Cummings was “concerned that
he didn’t get a fair trial at the guilt phase, but he didn’t want to hear anything from
me . . . about the penalty phase.”
Afterward, on July 29, 1999, the Rule 3.850 court issued an order denying
ten of Cummings’s Rule 3.850 claims – all but his claim that his trial counsel
Mastos was ineffective for failing to investigate and present mitigation evidence at
the penalty phase. As to this claim, the Rule 3.850 court, out of “an abundance of
caution,” granted an evidentiary hearing despite Cummings’s failure to allege what
mitigation evidence should have been presented or even how he was prejudiced.6
Before the evidentiary hearing, Cummings moved to discharge
6
The Rule 3.850 court stated in full:
CLAIM V: This claim alleges that counsel was ineffective in that he failed to
properly and adequately investigate and prepare mitigating evidence. Defendant has
failed to state what the mitigating evidence would be and how he suffered prejudice
as a result. A defendant m[a]y not simply file a motion for postconviction relief
containing conclusory allegations that his or her trial counsel was ineffective and
then expect to receive an evidentiary hearing. Kennedy v. State, 547 So. 2d 912 (Fla.
1989). See also Engle v. Dugger, 576 So. 2d 696, 700 (Fla. 1991); Valle v. State,
705 So. 2d 1331, 1334 (Fla. 1997); Teffeteller v. Dugger, 24 Fla. L. Weekly S 110,
114 (March 1999).
There are some indications that the Defendant did not want to cooperate in
the mitigation stage. Defendant was evaluated by Dr. Sanford Jacobson on January
5, 1993. The defendant told Dr. Jacobson “he did not want family members to testify
in his behavior.” See report of Dr. Jacobson, attached as Exhibit “D”. When asked
to explain, the Defendant told Dr. Jacobson there was no difference to him between
life in prison or the death sentence because if he was in jail for the rest of his life, he
was lost to his family.
In an abundance of caution, this Court will conduct a[n] evidentiary hearing
to determine if trial counsel was ineffective in failing to present mitigating evidence
during the penalty phase.
19
Weissenborn, his first Rule 3.850 counsel, because Weissenborn allegedly was not
working hard enough on Cummings’s case, was not representing Cummings
zealously enough, and was pursuing penalty-phase issues rather than guilt-phase
issues. During the hearing on his motion to discharge Weissenborn, Cummings
reaffirmed that he would rather have a death sentence than a sentence of life
imprisonment:
I don’t want no life sentence. I just want a fair trial on the evidence
and not the stuff that they concocted. That’s not evidence. . . . I want
a lawyer that’s going to do the case for me. I don’t know nothing
about the law, but I don’t want no life sentence. I want a death
sentence, like you done gave me the first time. I don’t want no life
walking around in prison.
In January 2000, the Rule 3.850 court granted the motion and appointed new
counsel to represent Cummings. Cummings’s new Rule 3.850 counsel, Reginald
Moss, amended Cummings’s Rule 3.850 motion twice to raise four additional
claims. The Rule 3.850 court held a second Huff hearing. Afterwards, it denied all
the additional claims except Cummings’s claim of ineffective trial counsel for
failing to interview Cummings’s mother and sister for mitigation purposes, which
the Rule 3.850 court considered a supplement to Cummings’s earlier claim of
failure to investigate and present mitigation evidence.
In November and December 2000, the Rule 3.850 court held a six-day
evidentiary hearing on the mitigation evidence claim, but Cummings did not testify
20
although he was present. His new counsel called Cummings’s sister, Covington;
his niece, Catherine Wooden; his son, Frederick; the mother of his children,
Deborah Dawson; his middle school principal, Moses Pool; a childhood friend,
Eddie Webster; and three expert witnesses, Dr. Lynn Schram, Dr. Merry Haber,
and Dr. Bruce Frumkin. The State called Mastos and two expert witnesses: Dr.
John Spencer and Dr. Jane Ansley. We summarize the testimony.
Covington testified that Cummings was her half-brother and nine years her
junior. Covington said their mother, Martha Wooden, was a good mother but was
absent most of the time and was frequently out playing cards. Martha Wooden did
not work much, and the family lived off welfare. Martha Wooden married Jules
Wooden Sr., who was the father of six of Martha Wooden’s children (but not
Cummings).7
Cummings was the only child of their mother and Randolph Cummings.
Covington did not know how long Randolph Cummings and Martha Wooden were
together, but they never married and Covington did not know him very well.
Martha Wooden had five other children by three other men, none of whom she
married. None of the men in Martha Wooden’s life ever took on a surrogate-
father-type role in Cummings’s life. The neighborhood had a lot of drugs and
7
Most of Cummings’s half-siblings were either deceased or incarcerated. Only
Covington, her sister Gladys, and her brother Bruce were alive and free.
21
other criminal activity. When Cummings was about twelve or thirteen, Covington
began to suspect he was using drugs. Five of his half-siblings were using drugs
then, too.
Cummings had four children with his girlfriend Deborah Dawson, and he
loved his children. Cummings was not a harsh disciplinarian with his children, and
Covington never knew him to abuse them. When Cummings was not in jail, his
children lived with him, and he was active in their lives. He tried to teach them
right from wrong, and to make for themselves a better life than he did for himself.
Covington attended one or two days of the guilt phase of Cummings’s trial.
After the guilty verdict, Cummings relented and allowed her to testify in the
penalty phase. Mastos asked her a few questions about Cummings, then moved on
to speak to the children.
On cross-examination, Covington testified that her family was close and
supportive with each other. Covington and others in the family tried to help
Cummings, to be supportive of him, to get him to quit using drugs. They tried to
make Cummings understand how much they all loved him. With regard to
Cummings’s children, Covington admitted that Cummings twice moved out of
state and left his girlfriend and his four children behind, at least once without any
discussion beforehand.
22
Cummings’s niece Catherine Wooden (“Catherine”) testified next.
Catherine was the daughter of Cummings’s older half-sister Diane St. Fleur.
Catherine grew up in the same house as Cummings; he left home when she was
about twelve or thirteen. There were about eight to ten children living in the four-
bedroom house at that time.
Catherine testified that when the children misbehaved, Martha Wooden
would whip them with “whatever she could get her hands on at that time.” Martha
Wooden whipped Cummings with a mop handle, extension cords, and a belt.
Catherine saw Martha Wooden whip Cummings about fifteen to twenty times over
the years. The beatings left “really thick welts.” However, Catherine admitted on
cross that she considered Martha Wooden’s whippings to be punishment, not
abuse.
Catherine echoed Covington’s testimony about Cummings’s parenting – that
he loved his children and spent time with them. When Cummings was in jail in
North Carolina, his children were living with Deborah Dawson, their mother.
Dawson began using drugs heavily, and Cummings from prison wrote a letter to
the courts in North Carolina, arranging for his sister Diane to get temporary
custody of his children.
Catherine first met Mastos the day the jury returned its guilty verdict.
23
Mastos asked her to sit outside the courtroom because he might call her as a
witness, but did not tell her what he wanted her to testify about, or ask what
information she had about Cummings or the case. Catherine would have been
willing to talk to Mastos earlier if he had approached her.
Moses Poole, Cummings’s middle-school principal, first met Cummings
when he was in seventh grade. Poole remembered Cummings as being pleasant
and friendly, and an average student. Cummings had no discipline problems at
school. Cummings’s brother Jules and sister Annie had serious discipline,
attendance, and attitude problems, but Martha Wooden never took any beneficial
action to correct it.
Deborah Dawson, the mother of Cummings’s four children, testified that she
was in a romantic relationship with Cummings for nine years; though they were
never legally married, they considered themselves to be husband and wife.
Cummings was a good father to his children and he would take them places like
out to eat, to movies, swimming, and fishing. He disciplined the children to teach
them to be good and respect others. On cross-examination, Dawson admitted that
Cummings moved to California without her and without explaining why he was
going; he “[j]ust up and went.” At the time Cummings and Dawson had a three-
year-old and a two-year-old child, and Dawson was pregnant with their third child.
24
Dawson later took the children and joined him in California.
Cummings’s son Frederick testified that Cummings was a good father to him
and his siblings, that Cummings was strict and taught them to respect others and
get their work done. Cummings would take them to family activities like
swimming, fishing, and cookouts.
Eddie Webster testified that he had known Cummings since he was about
twelve, a period of more than thirty years. When he and Cummings were about
thirteen, they started using drugs: cigarettes at first, then they started sniffing
gasoline. The gasoline-sniffing lasted about a month. Many years later, after
Cummings returned to Florida from California, they began smoking crack together.
The State called Mastos. At the time Mastos was appointed to represent
Cummings, Mastos was a veteran criminal defense attorney who earlier had
represented two capital co-defendants who were acquitted. Mastos already had
served as a judge and a prosecutor. As a judge, Mastos presided over thousands of
cases, including capital murder trials. In all, Mastos served ten years as a trial
judge, plus seventeen years as either a prosecutor or a criminal defense attorney.
Mastos testified that before trial Cummings took the firm position that he did
not want to present any evidence in the penalty phase. According to Mastos,
Cummings repeatedly said he did not want a penalty phase. Mastos felt obligated
25
to request that Cummings be evaluated to determine whether this decision was
knowing and voluntary. Once Dr. Jacobson determined that Cummings was
competent, Mastos had no reason to doubt that Cummings’s decision to forego a
penalty-phase defense was a knowing and voluntary one. Mastos explained the
penalty-phase process to Cummings and “had every reason to believe that
[Cummings] understood” his explanation. Mastos testified he believed Cummings
was an intelligent man, and, at that point, Mastos accepted Cummings’s decision
and did not investigate mitigation evidence:
Q. Did [Cummings] appear to understand your explanation of the
process?
A. I had every reason to believe that he understood. And again,
being [that] I thought Fred was an intelligent man. I mean, his
ability to think and reason, look at the depos,[8 ] be in full
command of the facts. Again, when he said, I don’t want a
penalty phase, that was – I accepted it.
Q. Did you go behind his back and investigate and prepare a
penalty phase by contacting family members?
A. No.
Q. Or investigating his background or any of those things?
A. No.
Next, Mastos admitted that Cummings later grudgingly permitted him to talk
to his two sisters, and that Mastos then talked with, and put on the stand, two of
Cummings’s sisters:
8
Pre-trial depositions were taken of certain guilt-phase witnesses. Mastos gave copies of
the depositions to Cummings, who reviewed them in prison and discussed their contents with
Mastos.
26
Q. Earlier you said he bent a little bit, did there come a point where
he allowed you, eventually allowed you to discuss his case with
some family members?
A. Yes.
Q. Did he [sic], in fact, discuss his case with some family
members?
A. There were two people, I believe, who were sisters, and they sat
through most of the trial. And I remember meeting them and
talking to them in the courtroom. I don’t remember them ever
coming to the office.
Q. But you did discuss –
A. Yes, we did.
Q. . . . Did your discussions with them give you any material, any
information that you could have used in a penalty phase?
A. No.
Q. . . . Did you remember discussing with the defendant, [did he]
give you any background material, any material that you
thought you might have been able to use at a penalty phase?
A. No. . . . [Cummings] was always very guarded about his
background and his family.
Q. Did his position, [as] regards the penalty phase, change any
following the guilty verdict?
A. Well, grudgingly, he let me put these two people on for the
limited . . . goal of trying to put a human spin on this case as to
why the jury might spare his life.
Mastos reaffirmed that he presented a “limited” penalty-phase defense on
Cummings’s behalf because of the limits Cummings had put on him:
Q. Do you recall what defense you did present at the penalty
phase?
A. Very limited. And again, it was limited to trying to put some
sort of a human side to this, that Fred did have a family, that he
did have some children out there. That was basically all that I
could do, you know, in the limited framework that he had put
[on] this thing.
27
Mastos testified that his penalty-phase strategy was to emphasize
Cummings’s humanity and he would not have presented evidence regarding
Cummings’s antisocial personality disorder, crime-riddled family, or history of
drug abuse even had he known about it. Such testimony, Mastos stated, would
have been contrary to his strategy and would have had a negative effect on the
jury:
Q. If you had requested a mental examination and the examination
showed that the defendant had an Antisocial Personality
Disorder, with the suggestion that the defendant was a
psychopathic manipulator, is that something that you would
have wanted the jury to hear?
A. No.
Q. Why not?
A. That would make a bad situation worse.
Q. In what respect?
A. Well, it would defeat what I was trying to do, that is, put a
human spin on it, [to show] that he’s a human being with a
family. If they heard testimony that he was a manipulative
psychopath, I mean, you might as well throw gasoline on a fire.
Q. Okay. If . . . the defendant came from a family of criminals . . .
[or] the defendant himself had participated in criminal behavior
of one sort [or] another nearly his entire life, would you have
presented that to a jury?
A. No.
Q. And why not?
A. Again, adverse effect on the jury. You’re trying to redeem the
guy. You’re trying to show good qualities. You show a life
dedicated to crime, it’s negative.
Q. Okay. What about alleged drug use by the defendant, . . .
lifelong drug use?
A. Well, drug use is like alcohol. That sometimes can cut both
ways. You know, it certainly could help.
28
I mean, for instance, if Fred had come clean in the very
beginning with me, as he did ultimately after it was all over,
then his cocaine use would have been an issue. So then he
would have stood there all along and said, look, this, you know,
this was caused by cocaine[-induced] rage or frenzy. But he
never put himself there. Therefore, if I had testimony of drug
use, it wouldn’t mean anything.
Q. Well, let me ask you this then. Drug abuse, drug use at a time
other than the time of the crime, would that have been of any
use to you?
A. Probably very little.
Q. In the absence of the –
A. Jurors are not sympathetic to junkies generally.
Mastos’s plan at the penalty phase was “[t]o let the jury see [Cummings’s]
children,” to show that he had a life and family outside of prison. Mastos
explained that this plan arose from the constraints imposed by Cummings’s
continued denial that he was guilty of Good’s murder:
[I]n light of his denial that he had been there, . . . you’re in a very
limited position of trying to show a jury that there is a human being
there, that his life is worth something to his family and . . . he’s a
living, breathing person. So there is some worth.
In light of these constraints, Mastos testified that to present evidence regarding the
extensive criminal history of Cummings’s family would have been
counterproductive:
[Y]ou have a man who stood before this court, before this jury,
before me and said I didn’t do it, I didn’t do it, I’ll go to the
electric chair saying I didn’t do it. The jury hears a violent
felony that takes place and then to bring in front of the jury that
his whole family has a criminal history would be completely
29
counterproductive.
Q. In what way? . . .
A. Because, instead of voting eight to four, they would have voted
ten to two or twelve zip because they would have said, my God,
the whole family is garbage.
On cross-examination by Cummings’s Rule 3.850 counsel, Mastos testified
about his investigation into mitigation evidence. Mastos first raised the issue of
penalty-phase preparations with Cummings in late 1992, a few months before the
January 25, 1993 trial. Cummings did not feel that a penalty phase was necessary
but was not “quite that strident at that early stage.” Mastos explained to him the
propriety of preparing for a penalty phase, but to Cummings considering “anything
less than victory was weakness,” and Cummings “viewed the whole [penalty-
phase] concept as begging.” Mastos consulted with other attorneys who had tried
first-degree murder cases as to what he should do in this situation, and some
attorneys said that when a client is adamantly against it, you have no authority and
cannot go behind a client’s back. Mastos acknowledged there was no consensus on
this issue.
Although at the January 4, 1993 pretrial hearing Cummings said that Mastos
could talk to his family members, Mastos did not “ever recall anything Fred said
that gave me some car[te] blanche authority to go and talk to his family members”
because Mastos could “tell from [Cummings’s] tone he didn’t want a penalty
30
phase.” Mastos did not believe he could go behind Cummings’s back and conduct
an investigation, as he did not want to violate the trust between Cummings and
himself as his attorney:
The bottom line to this case is, the client didn’t want a penalty phase.
He didn’t want people begging for his life. I didn’t feel, as his lawyer,
that I was going to go behind his back and conduct an investigation. I
didn’t want to violate the trust that I thought existed between the
attorney and the client. . . . I don’t know what else to say about this
case. I can’t go back to 1993 and conduct some kind of an
investigation that he didn’t want.
Although Mastos eventually was able to put two of Cummings’s sisters on the
stand, Mastos reiterated that he never had full authority to conduct an investigation
into mitigation evidence, and “[w]hatever [Cummings] gave me was grudging.”
Mastos testified that he “never considered it a warm and fuzzy invitation from Fred
to go searching for nuggets of information.”
Once Dr. Jacobson concluded that Cummings was mentally competent to
waive mitigation, Mastos did not retain any other mental health witnesses to
examine Cummings. Mastos also did not retain an investigator or conduct any
investigation because Cummings did not want him to do so:
I know we’re going in circles here, but I took the man at his word. I
did not conduct any investigation. I didn’t feel that’s what my client
wanted. He grudgingly allowed me to talk to these people. I tried to
get a few nuggets of humanity in front of the jury and that’s it.
Mastos suggested to Cummings that Cummings have his family members call
31
Mastos, but Mastos never received any calls from them.
The Rule 3.850 hearing also featured the testimony of five mental health
experts: three psychologists called by Cummings and two psychologists called by
the State. The Florida Supreme Court summarized the expert mental health
testimony as follows:
During the hearing, Cummings presented . . . three mental health
experts who testified regarding Cummings’s mental state at the time
of the crime and whether he suffered from brain damage.
Dr. Lynn Schram, a clinical neuropsychologist, . . . testified
regarding the tests he performed on Cummings. Dr. Schram
concluded that Cummings suffers from an attention/concentration
problem that could be indicative of some organic brain damage. Dr.
Schram further testified that he could not diagnose brain damage with
certainty, nor could he find that Cummings was impaired in his
everyday functioning.
Dr. Merry Haber, a forensic psychologist, testified that she was
asked to evaluate Cummings and develop a psychosocial history to
determine whether there were any mitigating factors that would affect
Cummings’s death sentence. Dr. Haber concluded that Cummings
suffers from antisocial personality disorder and exhibits features of
obsessive compulsive personality disorder, both arising from his poor
upbringing. Dr. Haber stated that she believed that Cummings knew
his conduct was wrong and that she could not diagnose brain damage
with certainty.
Lastly, Dr. Bruce Frumkin, a forensic clinical psychologist,
testified regarding his evaluation of Cummings. Dr. Frumkin
concluded that Cummings did not suffer from antisocial personality
disorder, but rather, Cummings suffered from depression,
polysubstance abuse, and cognitive inflexibility or “tunnel vision” that
could be caused by some organic brain damage. . . .
In response, the State presented the testimony of Dr. John
Spencer, a clinical forensic psychologist, and Dr. Jane Ansley, a
neuropsychologist. Dr. Spencer testified that his evaluations of
32
Cummings revealed no significant brain damage or gross cognitive
impairments. He concluded that Cummings had antisocial personality
disorder. Dr. Spencer also used a video interview of Cummings to
reveal Cummings’s ability to adapt his behavior to changing
situations, contradicting a diagnosis that Cummings experienced
“tunnel vision.”
Dr. Ansley testified that her review of Cummings’s medical
history, the raw data obtained by the other experts in this case, and the
results of the tests she administered to Cummings indicated that
Cummings had no organic brain damage or executive function deficit.
Dr. Ansley concluded that Cummings has antisocial personality
disorder. She further testified that she disagreed with Dr. Schram’s
conclusion that Cummings experienced an attention/concentration
deficit.
Cummings-El v. State, 863 So. 2d 246, 251-52 (Fla. 2003) (“Cummings II”) (“-El”
suffix in Cummings’s name omitted).
F. Order Denying Rule 3.850 Motion
In a twelve page order, the Rule 3.850 court denied Cummings’s Rule 3.850
claim that his trial counsel was ineffective for failing to investigate and present
mitigation evidence at the penalty phase. The Rule 3.850 court found that
Cummings did not “m[e]et his burden of proving that trial counsel’s conduct at the
penalty phase amounted to deficient representation in light of [Cummings’s]
refusal to assist counsel in preparing for a penalty phase by expressly prohibiting
counsel from presenting background evidence, irrespective of his later cursory
consent to family members being contacted.”
The Rule 3.850 court noted that Cummings’s defense theory was mistaken
33
identity. Mastos presented no other defense because Cummings did not agree to
any other defense, and Mastos felt he would lose Cummings’s trust if he went
against his wishes. The Rule 3.850 court noted Mastos’s testimony that Cummings
did not want mitigation presented and only grudgingly allowed him to contact his
family:
Mr. Mastos testified he was familiar with the aggravators and
mitigators. He testified that [neither] the Defendant nor his family
members gave him any information that would have been useful in
presenting evidence of statutory mitigating factors. He stated that the
Defendant was quite strong-willed and he could not convince him to
do anything. Mr. Mastos testified that the Defendant did not want him
to contact his family members to testify on his behalf, that he did not
want his family “begging for his life” because he was innocent. . . .
Mr. Mastos further testified that Defendant grudgingly
permitted trial counsel to contact family members, but maintained the
position that he did not want them to beg for his life. The record
shows that at the January 4, 1993 trial hearing Defendant gave trial
counsel permission to speak to his family members, but Dr.
Jacobson’s report dated January 5, 1993 demonstrates that Defendant
did not want family members to testify. However, during the penalty
phase trial counsel presented testimony from the Defendant’s two (2)
available family members, to put a human spin on the case. Some of
the Defendant’s children were in court during the penalty phase, but
did not wish to testify, nor did Defendant wish them to testify.
Upon recounting this testimony, the Rule 3.850 court determined that (1) “no
absolute duty exists to introduce mitigating or character evidence,” and (2) “trial
counsel is not deficient for failure to present testimony from reluctant family
members,” and (3) trial counsel is not ineffective for following the instructions of
34
his client.
The Rule 3.850 court also concluded that Mastos was not ineffective as to
investigation of mitigation evidence because “Mr. Mastos used the majority of his
efforts in the guilt phase and cannot be faulted for following the wishes of his
client in the penalty phase.” The Rule 3.850 court found “that, under the
circumstances of this case, the performance of trial counsel was within the
parameters of ‘prevailing professional norms.’”
The Rule 3.850 court reviewed the evidence Cummings developed at the
Rule 3.850 evidentiary hearing and found that Covington, Catherine Wooden,
Frederick Dawson, and Deborah Dawson “offered essentially the same non-
statutory mitigation evidence as that presented at trial” by Covington and St. Fleur.
Moreover, Mastos testified that he would not have presented much of the proffered
3.850 testimony because it either would not have been helpful or would have
proven harmful:
Mr. Mastos testified that he did not call . . . Deborah Dawson . . .
because, according to Mr. Mastos, her testimony, like that of other
civilian witnesses, would not have been particularly helpful to
Defendant. Her testimony would have revealed, during cross-
examination, that the Defendant was a drug user, supported her
periodically, when he was not incarcerated, and voluntarily left her
and the children when he moved back to Florida. . . .
[Regarding] trial counsel’s failure to introduce mitigation
evidence including the extensive history of criminal conduct of
Defendant’s siblings, and Defendant’s substance abuse[,] Mr. Mastos
35
was successful in keeping out details of Defendant’s prior convictions.
Mr. Mastos testified that he did not present the Defendant’s previous
incarceration records because he did not want the jury to think that
Defendant was a career criminal, as this would not have elicited their
sympathy. Moreover, while there are indicia of good behavior in the
records, there are also notations of involvement in violent fights while
incarcerated. The testimony by the family members at the evidentiary
hearing would have exposed the jury to parts of the Defendant’s
criminal record that were not presented at trial. Mr. Mastos also
testified that he would not have presented to the jury the criminal
history of Defendant’s family members as that would have resulted in
the jury voting 10-2 or 12-0 for death, rather than 8-4. Trial counsel is
not ineffective for failing to present background information which
would have allowed the presentation of damaging or derogatory
evidence, including violent tendencies, in rebuttal.
Regarding Defendant’s drug use, . . . Mr. Mastos testified that
the Defendant did not tell him about the drug use until after the trial
was over. Counsel acknowledged that drug abuse can have a double-
edged sword effect on the jury, as juries are not sympathetic to junkies
generally. Further he believed that drug abuse testimony would have
been helpful if the Defendant had claimed to have committed the
crime while in a cocaine rage. Because the defense’s strategy was to
convince the jury that the Defendant was not present at the scene of
the crime and did not commit the crime, and that Defendant is a
decent, upstanding, family man, testimony of drug abuse at the
penalty phase would not have been supportive of counsel’s efforts.
Counsel’s strategic decisions will not be second-guessed on collateral
attack.
In addition, the Rule 3.850 court cited Mastos’s testimony that he would not have
used the following other categories of mitigation evidence because they were
inconsistent with the defense strategy: (1) extreme emotional disturbance; (2) an
impaired ability to conform to the requirements of the law; and (3) antisocial or
psychopathic personality disorder.
36
The Rule 3.850 court then addressed Cummings’s and the State’s mental
health expert witnesses. The Rule 3.850 court found that “[t]he consensus of the
expert testimony is that Defendant has an antisocial personality disorder, which is
not a mitigating factor. They all agree that antisocial personality disorder does not
cause criminal behavior, it explains it.” The Rule 3.850 court summarized the
testimony of Cummings’s three experts (Drs. Haber, Frumpkin, and Schram) and
the State’s experts (Drs. Spencer and Ansley):
Dr. Haber testified that the Defendant has obsessive compulsive
personality traits. . . . She also found that he is manipulative and likes
to present himself in the best light and likes to convey the impression
that he is an upright moral kind of guy. Dr. Haber also testified that
Defendant had the capacity to know what he was doing when he killed
the victim. She determined that he acts without impulse control. She
was concerned about the possibility of brain damage due to the
Defendant suffering a head injury as a child and while in prison, even
though he did not lose consciousness during either incident.
Additionally, she acknowledged that huffing gasoline could cause
brain damage. As she is not a neuro-psychologist, she could not
diagnose brain damage with certainty.
Dr. Frumpkin also testified about the Defendant’s social history
and head injuries. In addition to having an anti-social personality
disorder, Dr. Frumpkin concluded that the Defendant is probably
long-term chronically depressed. He agreed with Dr. Schram’s
conclusion that the Defendant cannot shift attention. On cross-
examination, Dr. Frumpkin admitted that the impairment in
Defendant’s attention may not be due to improper brain functioning.
Dr. Schram, whose background does not include extensive
experience in forensics nor familiarity with the legal standards of
incapacity, testified as to the results of a number of tests administered
to Defendant. . . . Dr. Schram opined . . . that the Defendant has an
attention and concentration problem, which is indicative of organic
37
brain damage. . . . [However,] Dr. Schram was unable to either
definitively determine that Defendant suffers from brain damage, or
find that Defendant is impaired in his everyday functioning.
Dr. Spencer found the Defendant has an anti-social personality
disorder, but found no clinical evidence of significant brain damage.
He testified that he personally observed that the Defendant could
change his approach when confronted with information, known as
changing sets. Dr. Spencer videotaped his interview with the
Defendant. A portion of the tape was presented as evidence. The
video clearly showed that the Defendant was capable of changing sets
in the way he altered his mind set when responding to Dr. Spencer.
As noted by Dr. Spencer, the tape revealed that the Defendant can
become agitated, and not become violent. He can control his anger.
Dr. Spencer also stated that it was possible to suffer from brain
damage that is not detected or detectable. He stated that he did not see
anything in his test results or in his interview with the Defendant that
was indicative of organic brain damage.
Dr. Ansley provided a neuro-psychological evaluation. She
testified that the results of her evaluation showed no indication of any
organic brain damage and no executive function deficit. Dr. Ansley
had reviewed the Defendant’s medical history and the raw data from
the testing performed by all of the aforementioned experts. She
concluded that this data was valid and reliable, and integrated it into
tests she performed on her own. Her findings, like those of Dr.
Spencer, were that the Defendant has an anti-social personality
disorder and type D on the McGarty scale. This type of individual,
according to Dr. Ansley, generally does not do well in treatment as the
person does not accept responsibility in general.
. . . Based on the results of the tests she conducted, as well as
her review of Defendant’s prison records, and the reports of the other
expert witnesses, Dr. Ansley testisfied that she reached the conclusion
that the head injuries and the drug usage reported by Defendant did
not cause brain damage, and that the Defendant does not have any
brain damage that would affect his ability to understand what he was
doing when he killed the victim. Moreover, she concluded that it was
a volitional choice to violate the restraining order.
After reviewing the expert testimony, the Rule 3.850 court found that (1) the
38
State’s experts Dr. Spencer and Dr. Ansley were more credible, (2) Cummings had
an antisocial personality disorder, and (3) Cummings had no organic brain damage.
Alternatively, the Rule 3.850 court found that even if Mastos’s performance
was deficient, the result at trial would not have been different, and thus Cummings
could not prove prejudice. It stated, “the Court is convinced that the proposed
mitigation evidence would not have made any difference on the outcome of the
sentence[;] therefore, counsel cannot be ineffective for failing to present such
evidence.”
G. Rule 3.850 Appeal and State Habeas Petition
Cummings appealed the denial of his Rule 3.850 motion to the Florida
Supreme Court, and also filed a state habeas petition in that court. The Florida
Supreme Court affirmed. Cummings II, 863 So. 2d at 249-50.9
The Florida Supreme Court recognized that the test for assessing Mastos’s
performance was not only whether he should have presented mitigation evidence,
but also “whether the investigation supporting [Mastos’s] decision not to introduce
mitigating evidence . . . was itself reasonable,” and that his investigation should be
assessed through “an objective review of [Mastos’s] performance, measured for
reasonableness under prevailing professional norms, which includes a context-
9
The Florida Supreme Court denied Cummings’s state habeas petition, which primarily
claimed that his appellate counsel was ineffective. Cummings II, 863 So. 2d at 253.
39
dependent consideration of the challenged conduct as seen from [Mastos’s]
perspective at the time.” Cummings II, 863 So. 2d at 250-51 (quoting Wiggins v.
Smith, 539 U.S. 510, 522-23, 123 S. Ct. 2527, 2536 (2003)) (internal quotation
marks and emphasis omitted) (ellipsis in original). The Florida Supreme Court
concluded that Mastos’s performance was not ineffective in either his investigation
or presentation of mitigation evidence. Id. at 252-53.
The Florida Supreme Court noted, for example, that Mastos called
Cummings’s sisters – Covington and St. Fleur – to testify in the penalty phase, and
that they “testified that Cummings[] was good to his family, was not violent, and
was innocent of the crime.” Id. at 251. The Florida Supreme Court recounted the
Rule 3.850 testimony that: (1) Cummings “was adamant about not wanting”
mitigation evidence; (2) Dr. Sanford Jacobson evaluated Cummings and concluded
he was competent to waive a mitigation defense; (3) “given his client’s wishes
during the penalty phase,” Mastos’s “strategy was to present Cummings[] in a
positive light”; (4) Mastos “did not present evidence of Cummings[]’s drug use,
poor upbringing, or that he came from a family whose members had substantial
criminal charges and convictions, because he believed that such evidence would
have an adverse effect on the jury”; (5) Mastos would not have presented the fact
that Cummings had an anti-social personality disorder because it would have been
40
inconsistent with his trial strategy; and (6) Mastos was “successful in keeping out
the details of [Cummings’s] prior convictions.” Id. at 252.
The Florida Supreme Court pointed out that in a “detailed order,” the Rule
3.850 court “found that Mastos’s strategy to present positive aspects of
Cummings[]’s personality and to prevent negative evidence from being introduced
was reasonable, particularly in light of the fact that Cummings[] made it extremely
difficult for Mastos to obtain mitigating evidence.” Id. The Florida Supreme
Court also noted that the Rule 3.850 court “evaluated the mental health expert
testimony . . . [and] found the video tape of the interview of Dr. Spencer and
[Cummings] . . . [demonstrated Cummings’s] ability to change his behavior as the
situation changed. Additionally, the testimony of Dr. Ansley was extremely
credible . . . [because of] her experience and expertise in the forensic
neuropsychology field, and the thoroughness of her work in th[e] case . . . .” Id. at
252-53 (quoting Rule 3.850 court’s order). And, the Rule 3.850 court “concluded
that Cummings[] had not met his burden of proving that trial counsel’s conduct at
the penalty phase was deficient.” Id. at 253.
Alternatively, even if trial counsel was ineffective in the penalty phase, the
Florida Supreme Court noted that the Rule 3.850 court found that Cummings “has
failed to show that . . . there was a reasonable probability that but for the errors
41
complained of, the result would have been different.” Id. “[T]he testimony of
Cummings[]’s friends and family members presented at the evidentiary hearing
was essentially the same as the evidence presented at the penalty phase.” Id. at
252. Moreover, “if Mastos had presented this additional testimony, it would have
opened the door to extremely damaging testimony about Cummings[] on cross-
examination.” Id.
The Florida Supreme Court also determined that the Rule 3.850 court’s
“factual findings . . . are supported by competent, substantial evidence.” Id. at 253.
In light of these factual findings, the Florida Supreme Court concluded that the
Rule 3.850 court properly denied Cummings’s claim:
Applying the law to these facts, we find no error in the postconviction
court’s denial of relief based upon that court’s detailed evaluation of
the evidence. Cummings[] has failed to establish that the outcome of
his case would have been different had trial counsel presented the
proposed mitigating evidence.
Id.
H. Federal Habeas Proceedings
In 2003, Cummings filed a § 2254 petition in federal district court.
Cummings’s petition claimed, among other things, that: (1) the state trial court
improperly applied the HAC aggravating factor; (2) trial counsel was ineffective in
parts of the jury selection; and (3) trial counsel was ineffective for failing to
42
investigate and present mitigation evidence.
In 2004, Cummings filed a pro se motion to discharge Moss (his Rule 3.850
counsel) as his § 2254 counsel and appoint substitute counsel. Following an
evidentiary hearing, the district court granted Cummings’s pro se motion and
appointed new counsel Todd Scher to represent Cummings.
Subsequently, Cummings’s new counsel Scher moved for a competency
evaluation and a stay of his § 2254 proceedings because Cummings had suffered a
brain aneurism. Over the State’s objection, the district court ordered Cummings
evaluated and stayed the § 2254 case. After evaluation, the psychologist found
Cummings competent and “capable of making decisions and understanding and
participating in his legal affairs.” The district court lifted the stay.10
In 2009, the district court granted in part and denied in part Cummings’s §
2254 petition. The district court denied all of Cummings’s claims except for his
ineffective counsel claim as to mitigation evidence in the penalty phase. The
district court granted Cummings a writ of habeas corpus as to that mitigation claim.
It left intact Cummings’s convictions. The State appealed as to the mitigation
10
The State appealed the district court’s decision to stay this § 2254 case to have
Cummings’s competency evaluated. Because Cummings was determined to be competent to
proceed and the district court lifted the stay, we conclude this appeal claim is moot.
43
claim.11
II. STANDARD OF REVIEW
We review de novo the district court’s grant or denial of a § 2254 federal
habeas corpus petition. Peterka v. McNeil, 532 F.3d 1199, 1200 (11th Cir. 2008),
cert. denied, 129 S. Ct. 1039 (2009). Like the district court, though, we “are
limited in our review of every issue decided in the state courts by a general
framework of substantial deference.” Parker v. Allen, 565 F.3d 1258, 1267 (11th
Cir. 2009) (quotation marks and citations omitted); see Peterka, 532 F.3d at 1200-
01. Pursuant to § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”),
[a]n application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
11
Cummings filed a notice of cross-appeal of the district court’s denial of the remainder
of his § 2254 claims. The district court granted Cummings a certificate of appealability as to his
claims of (1) improper application of the HAC aggravating factor, (2) ineffective assistance of
trial counsel (other than the mitigation evidence claim) and (3) ineffective assistance of appellate
counsel. Cummings’s brief on cross-appeal discusses only two claims: (1) ineffective assistance
as to jury selection in the guilt phase; and (2) the HAC claim. Because both claims lack merit,
we affirm the district court’s denial of these claims.
44
28 U.S.C. § 2254(d).
A state court’s decision is “contrary to” federal law if it “contradicts the
United States Supreme Court on a settled question of law or holds differently than
did that Court on a set of materially indistinguishable facts – in short, it is a
decision substantially different from the Supreme Court’s relevant precedent.”
Kimbrough v. Sec’y, 565 F.3d 796, 799 (11th Cir.), cert. denied,— U.S. —, — S.
Ct. —, No. 09-6344 (U.S. Nov. 9, 2009) (quoting Williams v. Taylor, 529 U.S.
362, 405, 120 S. Ct. 1495, 1519 (2000)) (quotation marks and brackets omitted).
A state court’s decision involves an “unreasonable application” of federal law if it
“identifies the correct governing legal principle as articulated by the United States
Supreme Court, but unreasonably applies that principle to the facts of the
petitioner’s case, unreasonably extends the principle to a new context where it
should not apply, or unreasonably refuses to extend it to a new context where it
should apply.” Id. (quoting Williams, 529 U.S. at 407, 120 S. Ct. at 1520)
(quotation marks, brackets, and ellipsis omitted). “The question under AEDPA is
not whether a federal court believes the state court’s determination was correct but
whether that determination was unreasonable – a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007).
III. DISCUSSION
45
A. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the
United States Supreme Court established a two-pronged test for resolving
ineffective assistance of counsel claims:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show that
the deficient performance prejudiced the defense.
Id. at 687, 104 S. Ct. at 2064. The defendant must satisfy both the performance
and prejudice prongs to show ineffective assistance. Id.
To establish deficient performance, a defendant must show that his counsel’s
representation fell “below an objective standard of reasonableness in light of
prevailing professional norms” at the time the representation took place. Bobby v.
Van Hook, 558 U.S. —, 130 S. Ct. 13, 16 (2009) (quoting Strickland, 466 U.S. at
688, 104 S. Ct. at 2064-65). The test for reasonableness is whether counsel’s
conduct fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. In judging the reasonableness of
counsel’s performance, “the issue is not what is possible or what is prudent or
appropriate, but only what is constitutionally compelled.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quotation marks omitted).
46
“[T]he Federal Constitution imposes one general requirement: that counsel make
objectively reasonable choices.” Van Hook, 130 S. Ct. at 17 (quotation marks
omitted). Courts “indulge [a] strong presumption that counsel’s performance was
reasonable and that counsel made all significant decisions in the exercise of
reasonable professional judgment.” Chandler, 218 F.3d at 1314 (brackets and
quotation marks omitted). This presumption is even stronger when trial counsel is
experienced. Id. at 1316.
To satisfy the prejudice prong, a defendant “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Porter v. McCollum, 558 U.S. —, — S.
Ct. —, No. 08-10537, slip op. at 9 (U.S. Nov. 30, 2009) (quoting Strickland, 466
U.S. at 694, 104 S. Ct. at 2068). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. To determine whether the defendant has shown prejudice, we
consider all the available mitigation evidence, whether adduced at trial or during
postconviction proceedings. Williams v. Taylor, 529 U.S. 362, 397-98, 120 S. Ct.
1495, 1515 (2000). In cases, like this one, where the defendant is challenging his
death sentence, “the question is whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that the balance of
47
aggravating and mitigating circumstances did not warrant death.” Strickland, 466
U.S. at 695, 104 S. Ct. at 2069.
B. Client’s Instruction Not to Investigate or Present Mitigation Evidence
It is well established that counsel has “a duty to make reasonable
investigations” of potential mitigating evidence or “to make a reasonable decision
that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S.
510, 521, 123 S. Ct. 2527, 2535 (2003) (quoting Strickland, 466 U.S. at 691, 104
S. Ct. at 2066); see Porter, slip op. at 9-10 (“[U]nder the prevailing professional
norms at the time of Porter’s trial, counsel had an ‘obligation to conduct a thorough
investigation of the defendant’s background.’” (quoting Williams, 529 U.S. at 396,
120 S. Ct. at 1515)). In any ineffectiveness case, an attorney’s “decision not to
investigate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” Wiggins, 539
U.S. at 521-22, 123 S. Ct. at 2535 (quoting Strickland, 466 U.S. at 691, 104 S. Ct.
at 2066). Counsel’s duty to investigate “does not necessarily require counsel to
investigate every evidentiary lead.” Williams v. Allen, 542 F.3d 1326, 1337 (11th
Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009). “Under Strickland, strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
48
investigation.” Id. (quotation marks and citations omitted). Compare Strickland,
466 U.S. at 699, 104 S. Ct. at 2070 (stating that counsel’s “decision not to seek
more character or psychological evidence than was already in hand was . . .
reasonable”), with Porter, slip op. at 11 (noting that counsel “failed to uncover and
present any evidence of Porter’s mental health or mental impairment, his family
background, or his military service,” and “[t]he decision not to investigate did not
reflect reasonable professional judgment”).
In addition, the scope of the duty to investigate mitigation evidence is
substantially affected by the defendant’s actions, statements, and instructions. As
the Supreme Court explained in Strickland, the issue of what investigation
decisions are reasonable “depends critically” on the defendant’s instructions:
The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.
Counsel’s actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied
by the defendant. In particular, what investigation decisions are
reasonable depends critically on such information.
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
In some cases, the defendant has given counsel information or made
statements that indicate investigation into a particular area of mitigation evidence
would be futile or a waste of time. See, e.g., Stewart v. Sec’y, Dep’t of Corr., 476
F.3d 1193, 1210-11 (11th Cir. 2007) (denying claim of ineffective assistance of
49
trial counsel for failure to discover and inform defense mental health expert of
defendant’s childhood abuse and mistreatment because defendant never told his
counsel about the abuse and mistreatment, and in fact “indicated just the opposite
of poor treatment” (quotation marks omitted)); Henyard v. McDonough, 459 F.3d
1217, 1245 (11th Cir. 2006) (determining that counsel’s failure to investigate or
present evidence of defendant’s childhood sexual abuse was not deficient
performance because defendant repeatedly denied being sexually abused); Van
Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1324-25 (11th Cir. 2002) (concluding
counsel was not ineffective for failing to investigate defendant’s childhood and
prison abuse because defendant told counsel he did not consider himself abused as
a child and denied being raped in prison).
In other types of cases, the defendant has affirmatively instructed his counsel
not to investigate or present mitigation evidence. In affirmative-instruction cases,
the duty to investigate “does not include a requirement to disregard a mentally
competent client’s sincere and specific instructions about an area of defense and to
obtain a court order in defiance of his wishes.” Rutherford v. Crosby, 385 F.3d
1300, 1313 (11th Cir. 2004). A mentally competent defendant’s instruction not to
investigate or present mitigation evidence may make counsel’s decision not to
investigate or present mitigation evidence reasonable. See Blankenship v. Hall,
50
542 F.3d 1253, 1276-77 (11th Cir. 2008) (stating that even if counsel “did not
know about Blankenship’s background, however, another fact could make their
failure to investigate reasonable: Blankenship himself instructed them not to
contact his family”; “[s]ignificant deference is owed to failures to investigate made
under a client’s specific instructions not to involve his family”; and “[a]ssuming
[counsel] did not know the details of his client’s background, Blankenship’s
admonishment to [counsel] not to contact his family cannot be ignored”); Newland
v. Hall, 527 F.3d 1162, 1202-05 (11th Cir. 2008), cert. denied, 129 S. Ct. 1336
(2009) (“We have . . . emphasized the importance of a mentally competent client’s
instructions in our analysis of defense counsel’s investigative performance”; “when
limited by his client’s instructions not to contact his family or otherwise delve into
his background, a reasonably competent attorney standing in Manning’s shoes
would have gone no further than Manning did to seek mitigating evidence from the
client’s past”; and “we follow the [Supreme] Court in drawing a distinction
between a defendant’s passive non-cooperation and his active instruction to
counsel not to engage in certain conduct”); Johnston v. Singletary, 162 F.3d 630,
642 (11th Cir. 1998) (concluding counsel’s failure to present expert mental health
testimony at penalty phase was not unreasonable where counsel tried to have
defendant evaluated but defendant “was steadfast in his resistance to meeting with
51
[the] expert”); Dobbs v. Turpin, 142 F.3d 1383, 1388 (11th Cir. 1998) (“[T]he
decision whether to use mitigating evidence is for the client.”); Hance v. Zant, 981
F.2d 1180, 1183-84 (11th Cir. 1993) (counsel’s agreeing to capital defendant's
wishes not to contact his family did not amount to ineffective assistance under the
circumstances); Mitchell v. Kemp, 762 F.2d 886, 889-90 (11th Cir. 1985)
(Counsel’s investigation consisting of speaking with defendant and defendant’s
father held to be reasonable, when defendant did not provide any information about
troubled childhood and told counsel to “leave [his family] out of it.”).
This does not mean that a defendant’s instructions as to investigation or
presentation of mitigation evidence should be “blindly followed” where the
defendant has a possible mental impairment or the defendant’s instructions are not
explicit or are less than clear. See Newland, 527 F.3d at 1208 (“We have
cautioned that an attorney may not ‘blindly follow’ a client’s instructions not to
investigate or use mitigating evidence”; “[t]his principle especially holds true
where a possible impairment prevents the client from exercising proper judgment”
(quotation marks omitted)); Dobbs, 142 F.3d at 1387-88 (Counsel “Bennett
testified . . . that Dobbs gave him the impression that he ‘did not want to put up any
evidence in mitigation’”; and counsel put up no mitigation evidence at all because
counsel mistakenly believed that mitigation evidence was admissible only to
52
mitigate the crime and evidence of Dobbs’s childhood was therefore inadmissible;
counsel may not “blindly follow” defendant’s commands); Blanco v. Singletary,
943 F.2d 1477, 1502 (11th Cir. 1991) (noting that counsel did not have a
psychiatrist or psychologist examine Blanco, did no investigation at all before the
penalty phase, never discussed any potential mitigation avenues with Blanco, and
“had a greater obligation to investigate and analyze available mitigation evidence”
because Blanco was, among other things, “noticeably morose and irrational,”
“depressed and unresponsive,” and “uncommunicative and easily angered”);
Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (“[Counsel]
Solomon’s explanation that he did not investigate potential mitigating evidence
because of [defendant] Thompson’s request is especially disturbing in this case
where Solomon himself believed that Thompson had mental difficulties. An
attorney has expanded duties when representing a client whose condition prevents
him from exercising proper judgment.”).
However, when a competent defendant clearly instructs counsel not to
investigate or present mitigation evidence, the scope of counsel’s duty to
investigate is significantly more limited than in the ordinary case. See Knight v.
Dugger, 863 F.2d 705, 750 (11th Cir. 1988) (“Although a capital defendant’s
stated desire not to use character witnesses does not negate the duty to investigate,
53
it limits the scope of the investigation required.”); Tafero v. Wainwright, 796 F.2d
1314, 1320 (11th Cir. 1986) (“[A] defendant’s decision communicated to his
counsel as to who he wants to leave out of the investigation, while not negating the
duty to investigate, does limit the scope of the investigation.”). Indeed, Strickland
tells us that the reasonableness of counsel’s investigation “depends critically” on
the defendant’s statements or actions. Strickland, 466 U.S. at 691, 104 S. Ct. at
2066; see also Porter, slip op. at 11 (noting that “although Porter instructed
[counsel] not to speak with Porter’s ex-wife or son, Porter did not give him any
other instructions limiting the witnesses he could interview”).
Although the scope of counsel’s duty is “limited,” the extent of limitation
cannot be reduced to mathematical certainty or a set of simple rules, for as the
Supreme Court repeatedly has counseled, “[n]o particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions regarding how best to
represent a criminal defendant.” Van Hook, 130 S. Ct. at 16 (quoting Strickland,
466 U.S. at 688-89, 104 S. Ct. at 2065). The touchstone of our inquiry into an
attorney’s performance, as always, is objective reasonableness under all the
circumstances. Id.; Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065.
A competent defendant’s clear instruction not to investigate or present
54
mitigation evidence also impacts the prejudice prong of the ineffective assistance
test. In Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933 (2007), the Supreme
Court held that the capital defendant Landrigan could not demonstrate prejudice
“[b]ecause the Arizona postconviction court reasonably determined that Landrigan
instructed his attorney not to bring any mitigation to the attention of the
[sentencing] court.” Id. at 477, 127 S. Ct. at 1941-42 (quotation marks and
citations omitted); see also id. at 475, 127 S. Ct. at 1941 (stating that “[i]f
Landrigan issued such an instruction [to his counsel not to offer any mitigating
evidence], counsel’s failure to investigate further could not have been prejudicial
under Strickland”). Indeed, “the judge presiding on postconviction review was
ideally situated to make [the] assessment [about what Landrigan instructed his
counsel] because she is the same judge that sentenced Landrigan and discussed
these issues with him.” Id. at 476, 127 S. Ct. at 1941. The Supreme Court
emphasized that in denying Landrigan’s § 2254 petition, the “District Court was
entitled to conclude that regardless of what information counsel might have
uncovered in his investigation, Landrigan would have interrupted and refused to
allow his counsel to present any such evidence.” Id. at 477, 127 S. Ct. at 1942.
The Landrigan Court also observed that neither Strickland, nor Wiggins, nor
55
Rompilla12 addressed an ineffective counsel claim where the defendant interfered
with trial counsel’s effort to present mitigating evidence:
Neither Wiggins nor Strickland addresses a situation in which a client
interferes with counsel’s efforts to present mitigating evidence to a
sentencing court. Wiggins, supra, at 523, 123 S. Ct. 2527 (“[W]e
focus on whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of Wiggins’ background was itself
reasonable” (emphasis added and deleted)). Indeed, we have never
addressed a situation like this. In Rompilla v. Beard, 545 U.S. 374,
381, 125 S. Ct. 2456, 162 L. Ed.2d 360 (2005), on which the Court of
Appeals also relied, the defendant refused to assist in the development
of a mitigation case, but did not inform the court that he did not want
mitigating evidence presented.
Id. at 478, 127 S. Ct. at 1942. The Supreme Court concluded that “at the time of
the Arizona postconviction court’s decision, it was not objectively unreasonable
for that court to conclude that a defendant who refused to allow the presentation of
any mitigating evidence could not establish Strickland prejudice based on his
counsel’s failure to investigate further possible mitigating evidence.” Id.
(emphasis added).
Our earlier decision in Gilreath v. Head, 234 F.3d 547 (11th Cir. 2000) is
consistent with Landrigan. There, the defendant Gilreath instructed his counsel to
12
See Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005). In Wiggins, there were
no instructions or lack of cooperation by the defendant, and Wiggins focused on the
reasonableness of the investigation that supported counsel’s – not Wiggins’s – decision not to
present mitigation evidence. Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536.
56
present no mitigation evidence during the penalty phase. Id. at 549-50.13 This
Court denied Gilreath’s ineffective assistance claim on prejudice grounds, stating
Gilreath “actually must make two showings.” Id. at 551. “First, Petitioner must
show a reasonable probability that–if Petitioner had been advised more fully about
character evidence or if trial counsel had requested a continuance–Petitioner would
have authorized trial counsel to permit such evidence at sentencing.” Id. “Second,
Petitioner must establish that, if such evidence had been presented at sentencing, a
reasonable probability exists that the jury would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Id. at 551-52
(quotation marks omitted).
In Gilreath, this Court explained that, “[i]n other words, to show prejudice,
Petitioner must show that – but for his counsel’s supposedly unreasonable conduct
– helpful character evidence actually would have been heard by the jury. If
Petitioner would have precluded its admission in any event, Petitioner was not
prejudiced by anything that trial counsel did.” Id. at 551 n.12. This rule follows
naturally from Strickland’s formulation of the prejudice prong, for there cannot be
13
Trial counsel had Gilreath execute a document memorializing his instruction not to
present mitigation evidence, and stating Gilreath knew that three witnesses were standing by to
testify about his alcoholism and mental condition but he did not want them to testify. Gilreath,
234 F.3d at 550. Then, during the state habeas evidentiary hearing, Gilreath was asked whether
additional discussion with trial counsel might have persuaded him to permit his counsel to
present character witnesses during the penalty phase, and Gilreath said, “I would probably have
said no.” Id. at 552 n.13.
57
a reasonable probability of a different result if the defendant would have refused to
permit the introduction of mitigation evidence in any event. See Strickland, 466
U.S. at 694, 104 S. Ct. at 2068 (defining prejudice for ineffective-assistance
purposes as a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different”).
We now apply these principles to Cummings’s case.
C. Performance Prong
After considering the state court record as a whole, we conclude that the
Florida state courts’ decision – that Cummings had not proven that Mastos’s
investigation and presentation of mitigation evidence were deficient – was not
contrary to, or an unreasonable application of, Strickland and its progeny. Multiple
factors guide us to this conclusion.
First, and most significantly, Cummings was competent and clearly,
consistently, and adamantly insisted that he wanted no mitigation evidence
presented in the penalty phase. He issued this instruction before trial, when Mastos
first broached the subject of mitigation with him. Cummings continued to hold
that position during the January 4, 1993 pretrial hearing. When the state trial court
explained to Cummings the purpose and benefits of mitigation evidence,
Cummings responded that he would rather be dead than serve a life term in prison.
58
After the jury reached its guilty verdict, Cummings again objected when his sister
addressed the court before the penalty phase began. Finally, according to his first
postconviction counsel, Lee Weissenborn, Cummings even at the Rule 3.850 stage
opined that he would rather have a death sentence than a sentence of life
imprisonment, and refused to cooperate with the investigation or presentation of
mitigation evidence. As discussed above, “[w]e have emphasized the importance
of a mentally competent client’s instructions in our analysis of defense counsel’s
investigative performance.” Blankenship, 542 F.3d at 1277 (quoting Newland, 527
F.3d at 1202) (ellipsis omitted); see Rutherford, 385 F.3d at 1313-14. Cummings’s
clear, affirmative instructions as to the penalty phase made Mastos’s conduct
objectively reasonable in this case.
Second, Mastos’s conduct does not fit the category of blindly following a
client’s wishes. Rather, Mastos explained the purpose of mitigation evidence to
Cummings and had Cummings evaluated by a psychiatrist. Mastos testified that he
first began preparations for the penalty phase months before Cummings’s trial
began. But Cummings hindered his efforts. Mastos testified that Cummings was
“very guarded” about his family and his background. Mastos explained why he
needed to obtain mitigation evidence, but Cummings refused to provide Mastos
with mitigation-related information. See Blankenship, 542 F.3d at 1276 (“[T]he
59
petitioner is often in the best position to inform his counsel of salient facts relevant
to his defense, such as his background.”); Newland, 527 F.3d at 1202 (“In
evaluating the reasonableness of a defense attorney’s investigation, we weigh
heavily the information provided by the defendant.”); Rutherford, 385 F.3d at 1312
(“To the extent there were any shortcomings in the investigation of Rutherford’s
family life, he is responsible for them. He did his best to hinder his attorneys’
efforts.”).
Mastos also petitioned the state trial court for a colloquy, in which the state
trial court supplemented Mastos’s efforts to explain the purpose of mitigation
evidence with the court’s own explanations and exhortations. Both Mastos and the
state trial court explained to Cummings what the penalty phase was for and why
there was “no down side risk” to presenting mitigation evidence. Cummings still
refused. Cummings indicated he understood, but did not want mitigation because
he preferred the death penalty to life in prison. Although Mastos saw no external
reason to doubt Cummings’s mental ability to make the decision not to present
mitigating evidence, Mastos nevertheless moved for a competency evaluation to be
sure.
Mastos then received the report from Dr. Jacobson, a psychiatrist at the
University of Miami School of Medicine, which relayed that Cummings stated he
60
had a good relationship with his “mother and siblings,” and that Cummings denied
having a drug problem. Dr. Jacobson reported that Cummings denied prior
psychiatric consultation on an outpatient basis, any inpatient treatment, any
operations or serious injuries. According to Dr. Jacobson, Cummings was “well
organized in his thinking” and “expressed himself in a goal directed fashion.”
There were no delusions or hallucinations, and Cummings’s mood was not
depressed. Dr. Jacobson also reported that Cummings “stated he did not want
family members to testify” and “[w]hen asked to explain he told me that there was
no difference between life imprisonment and a death sentence because if he was in
jail for the rest of his life he was lost to his family.”14
The record also reflects that Mastos reviewed Cummings’s North Carolina
prison records (which contained certain non-public medical records) and they did
not contain any information he wanted to present as mitigation. Mastos told the
state trial court that “there is no evidence whatsoever of any psychoses or
psychological problems that would affect a person’s behavior” and “there is
nothing in there that I can use.” During the Rule 3.850 hearing, Mastos reiterated
“there was nothing [in Cummings’s prison file] that was going to help him.” The
14
Dr. Jacobson’s report states Cummings claimed “that the victim was a girlfriend but
that they had no children together although he has five children with whom he describes an
active role in their upbringing.”
61
prison file actually contained damaging evidence of Cummings’s participation in
five violent incidents while in custody, and Mastos successfully kept that evidence
out of the penalty phase. Thus, although Mastos subsequently did not retain an
investigator or subsequently conduct any investigation, Mastos did have both Dr.
Jacobson’s report and the North Carolina prison records, which contained a
significant amount of information about Cummings.
Third, the information Cummings did give to Dr. Jacobson and, in turn, to
Mastos, indicated Cummings had no drug problem, no prior psychiatric treatment,
no operations or serious injuries, and no depression. Cummings’s disavowment of
such problems suggested investigation in those areas was not necessarily required.
See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (stating that the reasonableness
of counsel’s investigation decisions “depends critically” on information furnished
by the defendant, and that “when a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as
unreasonable”). Compare Porter, slip op. at 10 (noting that counsel ignored “[t]he
court-ordered competency evaluations . . . [which] reported Porter’s very few years
of regular school, his military service and wounds sustained in combat, and his
father’s ‘over-disciplin[e]’”), with Van Hook, 130 S. Ct. at 18-19 (concluding
62
counsel’s performance was not deficient when counsel gathered a substantial
amount of information and then made a reasonable decision not to pursue
additional sources).
Fourth, Mastos ultimately made the tactical choice to abide by Cummings’s
instructions regarding mitigation evidence, in part to maintain the trust that existed
between himself and Cummings. Mastos’s interest in maintaining attorney-client
trust was particularly critical because Cummings had asked the state trial court to
discharge Mastos during the January 4, 1993 pretrial hearing. At the Rule 3.850
hearing, Mastos testified that Cummings sought to have Mastos discharged
because Cummings viewed even the decision to have him evaluated for
competency (as to Cummings’s refusal to have mitigation evidence presented) as a
violation of trust.15 And with the trial looming, Mastos needed Cummings’s
cooperation and trust in the guilt phase. Although Mastos’s decision was to not
“go behind [Cummings’s] back” to conduct an investigation, Mastos did suggest to
15
Mastos testified as follows:
In fact, if you review . . . the transcript, there is only one occasion where he says I
want to fire Mr. Mastos. That occurred at the moment that I asked the court to have
him evaluated. At that moment, by taking that step, I lost his trust. And he turned
on me very, very quickly because he viewed my requesting that as a violation of the
trust. . . . [I]n reading this transcript, he showed something there that perhaps will
explain the relationship that we had. . . . [Cummings] treated that [Mastos’s decision
to seek a competency evaluation] and considered that extremely disloyal to him.
That – so knowing that and his reaction, you can understand why I did not launch
some independent investigation behind his back . . . .
63
Cummings (again) that he have his family members contact Mastos (a suggestion
the state trial court echoed on the record at the pretrial hearing). The family
members did not contact Mastos. During the trial Cummings’s two sisters attended
and Mastos talked to them before they testified.
Relatedly, Mastos testified that Cummings’s insistence on his innocence,
even after the jury returned its guilty verdict, boxed him in as to what strategies he
could employ at the penalty phase in any event:
Q. . . . Did your discussions with [Cummings’s sisters] give you
any material, any information that you could have used in a
penalty phase?
A. No.
Q. . . . Did you remember discussing with the defendant, [did he]
give you any background material, any material that you
thought you might have been able to use at a penalty phase?
A. No. [Cummings] was always very guarded about his
background and his family.
Q. Did his position, [as] regards the penalty phase, change any
following the guilty verdict?
A. Well, grudgingly, he let me put these two people [the sisters] on
for the limited . . . goal of trying to put a human spin on this
case as to why the jury might spare his life.
...
Q. Do you recall what defense you did present at the penalty
phase?
A. Very limited. And again, it was limited to trying to put some
sort of a human side to this, that Fred did have a family, that he
did have some children out there. That was basically all that I
could do, you know, in the limited framework that he had put
on this thing.
Mastos explained that this “limited framework” was built in part on Cummings’s
64
continued insistence that he was innocent of the crime. Mastos therefore chose to
“put a human spin” on Cummings’s life as his best option. In fact, the two sisters
testified that Cummings had four children who were present in the courtroom; that
he had eleven half-siblings; that his family loved him; that he tried to be a good
father; and that he treated his family well and was close to them. They also
testified that Cummings was honest and was not a violent man.
Although at the January 4, 1993 pretrial hearing Cummings said Mastos
could talk to his family members, Cummings in the same breath reiterated he did
not want his family testifying or such evidence presented. As Mastos testified,
Cummings insisted he was innocent and, whatever the outcome, he did not want
his family members testifying.
At the pretrial hearing, Cummings further explained that he did not want
mitigation evidence presented because he had no interest in what it could
potentially earn him – a life in prison:
THE DEFENDANT: What’s the difference between a life sentence
and death? I’m not guilty. There’s no difference. You know, I’m not
going – I am not going to sit in no prison for something I didn’t do the
rest of my life. I might as well be dead if you find me guilty of
something I’m not guilty for.
So I’m not going [to] have my family beg for my life to take
care of me for $15 a month. You know, I have children out there. I’m
not going to have them begging for my life.
...
THE COURT: . . . [T]here’s very little down side risk for you if you
65
are found guilty and your family came in. They wouldn’t be begging
people. They would be questioned by your lawyer about you as a
human being, as a father, as a brother, as a son, as a person, so the jury
has a better idea of who you are and what’s happened to you during
your life. But this is not a begging that goes on. It’s a matter of
information for those 12 people.
THE DEFENDANT: You know, I understand fully what you are
saying. But when you’re locked up and you have children . . . . When
these kids get big I’m sitting in prison with a life sentence. What can
I do for them? What can I provide for them? What are they going to
say, my daddy is in prison? I rather they say my father is dead. What
is the difference? What can I do for my child[?] . . . That’s torture.
Cummings maintained this view after the guilty verdict was reached, when he
interrupted the start of the penalty-phase proceedings to object to his sister
addressing the court. Only after the state trial court ordered that some family
testimony would be presented for the court’s benefit despite Cummings’s objection
did Cummings relent grudgingly to his two sisters testifying.
Fifth, Mastos was an experienced attorney. At the time of Cummings’s trial,
Mastos was a veteran criminal defense lawyer who already had represented two
capital co-defendants who were acquitted. He also had served as a state court
judge and presided over thousands of cases, including capital murder trials. All
told, Mastos had served ten years as a judge and an additional seventeen years as
either a prosecutor or a criminal defense lawyer. “When courts are examining the
performance of an experienced trial counsel, the presumption that his conduct was
reasonable is even stronger.” Chandler, 218 F.3d at 1316. At a minimum,
66
Cummings has not shown that Mastos’s conduct – obtaining a competency
evaluation of Cummings, abiding by his competent client’s clear instructions, and
not going behind Cummings’s back to investigate his family and personal
background – was objectively unreasonable under professional norms prevailing at
the time of Cummings’s 1993 trial. See Van Hook, 130 S. Ct. at 16 (defining
“effective assistance of counsel” for Sixth Amendment purposes as “representation
that does not fall below an objective standard of reasonableness in light of . . . the
professional norms prevailing when the representation took place” (quotation
marks omitted)).
Sixth, and alternatively, even if Cummings had not objected to the
investigation and presentation of mitigation evidence, and even if Mastos had the
proposed 3.850 mitigation evidence, Cummings has not shown that competent
counsel would have necessarily presented that evidence. For example, Mastos
testified that he would not have presented evidence of Cummings’s drug use, his
family’s criminal history, or his antisocial personality disorder not only because it
was inconsistent with his chosen penalty-phase strategy, but also because it would
have had a negative effect on the jury:
Q. If you had requested a mental examination and the examination
showed that the defendant had an Antisocial Personality
Disorder, with the suggestion that the defendant was a
psychopathic manipulator, is that something that you would
67
have wanted the jury to hear?
A. No.
Q. Why not?
A. That would make a bad situation worse.
Q. In what respect?
A. Well, it would defeat what I was trying to do, that is, put a
human spin on it, [to show] that he’s a human being with a
family. If they heard testimony that he was a manipulative
sociopath, I mean, you might as well throw gasoline on a fire.
Q. Okay. If . . . the defendant came from a family of criminals,
[or] the defendant himself had participated in criminal behavior
of one sort [or] another nearly his entire life, would you have
presented that to a jury?
A. No.
Q. And why not?
A. Again, adverse effect on the jury. You’re trying to redeem the
guy. You’re trying to show good qualities. You show a life
dedicated to crime, it’s negative.
Q. Okay. What about alleged drug use by the defendant, . . .
lifelong drug use?
A. Well, drug use is like alcohol. That sometimes can cut both
ways. You know, it certainly could help . . . [if] this [crime]
was caused by cocaine rage or frenzy.
Q. Well, let me ask you this then. Drug abuse, drug use at a time
other than the time of the crime, would that have been of any
use to you?
A. Probably very little.
Q. In the absence of the –
A. Jurors are not sympathetic to junkies generally.
Regarding Cummings’s family’s criminal history, Mastos reiterated his belief that
if “[t]he jury hears a violent felony . . . takes place and then to bring in front of the
jury that his whole family has a criminal history would be completely
counterproductive . . . [b]ecause, instead of voting eight to four, they would have
68
voted ten to two or twelve zip because they would have said, my God, the whole
family is garbage.” Cummings has neither rebutted this testimony nor challenged
its underlying assumptions regarding the damaging nature of the proposed 3.850
mitigation evidence. Therefore, Cummings cannot show deficient performance
because he has not demonstrated that competent counsel would have necessarily
presented the Rule 3.850 mitigation evidence. Stated another way, Cummings has
not shown it was objectively unreasonable for counsel to omit the 3.850 evidence.
Under the total circumstances in this case, we conclude the Florida state
courts’ decision – that Mastos’s performance was not deficient at to the
investigation and presentation of mitigation evidence – was not contrary to, or an
unreasonable application of, established federal law.
D. Prejudice Prong
Even if Cummings could show that Mastos’s performance was deficient, he
still must establish that such deficient performance prejudiced him. The Florida
Supreme Court found that Cummings did not meet his prejudice burden, as
Cummings “failed to establish that the outcome of his case would have been
different had trial counsel presented the proposed mitigating evidence.”
Cummings II, 863 So. 2d at 253. We also conclude that the Florida Supreme
Court’s finding of no prejudice was not contrary to, or an unreasonable application
69
of, established federal law. Three reasons support our conclusion.
First, Cummings has not shown that he would have consented to presenting
the mitigating evidence adduced at the Rule 3.850 evidentiary hearing even if
Mastos had investigated, discovered it, and counseled him to present it. As
discussed above, Landrigan states that a defendant cannot show prejudice under
Strickland if the defendant would not have permitted his counsel to present
mitigating evidence at trial. Landrigan, 550 U.S. at 476-78, 127 S. Ct. at 1941-42;
see also Gilreath, 234 F.3d at 551 (“Petitioner must show a reasonable probability
that–if Petitioner had been advised more fully about character evidence or if trial
counsel had requested a continuance–Petitioner would have authorized trial
counsel to permit such evidence at sentencing.”).
Cummings has never testified he would have allowed his counsel to present
the Rule 3.850 information at his trial. In fact, he did not testify at all during the
Rule 3.850 hearing. Rather, Cummings consistently opposed the presentation of
mitigating evidence at his trial. Cummings told Mastos and the state trial court
repeatedly that he did not want a penalty-phase presentation, and he interrupted
with an objection when one of his sisters (after the guilty verdict) tried to address
the state trial court on her own. Only after the state trial court ruled that it would
hear some family testimony regardless of Cummings’s opposition did Cummings
70
grudgingly relent, and then, according to Mastos, Cummings relented only enough
for Mastos to put a “human spin” on the case by showing Cummings had a family
who loved him. And, Cummings’s statements to the state trial court and Dr.
Jacobson make clear that he preferred a sentence of death to one of life
imprisonment, further indicating Cummings would not have consented to the
presentation of mitigating evidence whose only purpose was to convince the jury
to recommend life instead of death.
Second, as discussed earlier with respect to Mastos’s performance, Mastos
testified that he would not have presented the proposed mitigation evidence in any
event, and Cummings has not shown that competent counsel would have
necessarily presented it. Thus, Cummings has not established prejudice. See
Wong v. Belmontes, 558 U.S. —, 130 S. Ct. 383, 386 (2009) (stating that prejudice
prong requires the petitioner “to establish a reasonable probability that a competent
attorney, aware of the available mitigating evidence, would have introduced it at
sentencing” (quotation marks and brackets omitted)); see also Gilreath, 234 F.3d at
551 n.12 (“[T]o show prejudice, Petitioner must show that . . . helpful character
evidence actually would have been heard by the jury.”).
Third, Cummings cannot satisfy Strickland’s prejudice requirement because
even if the jury had heard the mitigating evidence adduced at the Rule 3.850
71
evidentiary hearing, Cummings has not shown “that but for his counsel’s
deficiency, there is a reasonable probability he would have received a different
sentence.” Porter, slip. op. at 11. As the Supreme Court recently reiterated, “To
assess that probability, we consider ‘the totality of the available mitigation
evidence – both that adduced at trial, and the evidence adduced in the habeas
proceeding’ – and ‘reweig[h] it against the evidence in aggravation.’” Id. (quoting
Williams v. Taylor, 529 U.S. at 397-98, 120 S. Ct. at 1515).
Following Cummings’s trial, the state trial court found four statutory
aggravating circumstances: (1) Cummings had three prior convictions for violent
felonies; (2) Cummings committed the murder in the course of a burglary; (3) the
murder was especially heinous, atrocious, or cruel; and (4) Cummings committed
the murder in a cold, calculated, and premeditated manner. Although Cummings
had been incarcerated several times for prior violent felonies, and although Good
had obtained a restraining order against him, Cummings waited outside her home
and then brutally stabbed her in her own bed while she lay sleeping beside her
eight-year-old son. Given the strength of the four aggravating circumstances, the
proposed mitigation evidence must be strong enough to outweigh them, and
therefore to raise a reasonable probability that the balance of aggravating and
mitigating circumstances did not warrant death. See Parker v. Sec’y for the Dep’t
72
of Corr., 331 F.3d 764, 788-89 (11th Cir. 2003) (“Given the strength of the
aggravating factors and the relative weakness of the mitigating evidence Parker
argues should have been presented, there is no reasonable probability that, absent
the deficient performance, the outcome of the proceedings would have been
different. The aggravating factors in this case are substantial.”). “Moreover, we
have rejected prejudice arguments where mitigation evidence was a ‘two-edged
sword’ or would have opened the door to damaging evidence.” Wood v. Allen,
542 F.3d 1281, 1313 (11th Cir. 2008), cert. granted, 129 S. Ct. 2389 (2009) (citing
Gaskin v. Sec’y, Dep’t of Corr., 494 F.3d 997, 1004 (11th Cir. 2007); Grayson v.
Thompson, 257 F.3d 1194, 1227 (11th Cir. 2001)); see Wong, 130 S. Ct. at 387-90
(finding no prejudice where proposed mitigation evidence was either cumulative of
evidence already presented at penalty phase, or would have opened door to
damaging testimony).
Here, the proposed mitigating evidence is either cumulative or damaging to
Cummings. The mitigating evidence, adduced either at trial or at the Rule 3.850
hearing, falls into the four basic categories of Cummings’s: (1) personal/family
background; (2) history of drug abuse; (3) relationship with his children; and (4)
mental health. Much of the personal/family background testimony, and all of the
testimony about Cummings’s relationship with his children, duplicated what was
73
said by Cummings’s sisters – Covington and St. Fleur – at the penalty phase. For
instance, the sisters testified that Cummings had eleven half-siblings; that he
belonged to a loving and supportive family; and that he loved his children, treated
them well, and took care of them when he was not in prison.
As to drug abuse and mental health evidence, the penalty phase did not
feature this testimony. The drug use evidence – that Cummings began using drugs
when he was about twelve or thirteen, that he huffed gasoline for about a month,
and that as an adult Cummings smoked crack cocaine – was of a general nature,
not tied to the circumstances of this crime.16 In such circumstances, we have
recognized that “presenting evidence of a defendant’s drug addiction to a jury is
often a ‘two-edged sword’: while providing a mitigating factor, such details may
alienate the jury and offer little reason to lessen the sentence.” Pace v. McNeil,
556 F.3d 1211, 1224 (11th Cir.), cert. denied, 130 S. Ct. 190 (2009); see Tompkins
v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999) (“[A] showing of alcohol and drug
abuse . . . can harm a capital defendant as easily as it can help him at sentencing.”).
As to mental health evidence, Cummings’s expert testimony largely echoed
that of the State’s experts: he had antisocial personality disorder. The State’s two
16
Indeed, throughout both the guilt and penalty phases of the trial, Cummings claimed to
Mastos that he was not present at the crime and was misidentified. Cummings also told Dr.
Jacobson that he had no drug problem. Mastos had no way to tie Cummings’s drug use to the
crime.
74
experts testified that Cummings had no brain damage, and even Cummings’s
experts could not diagnose any brain damage with any degree of certainty. After
hearing all expert testimony, the Rule 3.850 court found that the testimony of the
State’s experts – particularly Dr. Ansley, who testified Cummings had antisocial
personality disorder and no brain damage – was more credible than that of
Cummings’s experts. This finding, which the Florida Supreme Court affirmed, see
Cummings II, 863 So. 2d at 252-53, was reasonable and supported by the record.
In fact, even Cummings’s mental health experts admitted that Cummings knew his
conduct was wrong and that Cummings was not impaired in his everyday
functioning. Thus, in the mental health area, Cummings is left mainly with a
diagnosis of antisocial personality disorder, which is not mitigating but damaging.
See Land v. Allen, 573 F.3d 1211, 1222 (11th Cir. 2009) (noting defendant Land’s
mental health expert testified Land “met the criteria for an antisocial personality
disorder,” then stating Land’s “history of deception and criminality, which . . .
were an integral part of [the expert’s] diagnosis, substantially undercuts any
potential benefit her mitigation testimony might have had”); Parker, 331 F.3d at
788 (“Counsel decided not to put Dr. Stillman on the stand because Dr. Stillman
had opined that Parker was antisocial and a sociopath, a diagnosis the jury might
not consider mitigating. . . . Counsel cannot be deemed deficient in failing to call a
75
witness whose testimony is of such limited value.”); Clisby v. State of Ala., 26
F.3d 1054, 1056 & n.2 (11th Cir. 1994) (rejecting ineffective assistance claim on
prejudice grounds because mental health expert’s testimony would not have
changed the result, noting that “[s]entencing courts need no experts to explain that
‘antisocial’ people–people who by common definition have little respect for social
norms or the rights of others–tend to misbehave if they abuse drugs and alcohol”
and “[i]t has been estimated that 91% of the ‘criminal element’ are ‘antisocial’
personality types”); Weeks v. Jones, 26 F.3d 1030, 1035 n.4 (11th Cir. 1994)
(stating antisocial personality disorder is “not . . . mitigating as a matter of law”).
There was some new 3.850 evidence about Cummings’s childhood in that
his mother never married, did not work much, was frequently out playing cards,
and beat Cummings (and her other children) with belts and extension cords when
they misbehaved. Cummings was beaten up to twenty times over the course of
about twelve years. Cummings also grew up in a neighborhood with drugs and
criminal activity; five siblings used drugs; and almost all of Cummings’s siblings
had been arrested. At the time of the Rule 3.850 evidentiary hearing, only three of
the twelve children were alive and not incarcerated. Cummings presented no
discipline problems in school and was a pleasant and friendly child.
Nonetheless, the mitigating nature of Cummings’s proposed penalty-phase
76
evidence was weak and would have been wholly offset by the double-edged nature
of some of that testimony, such as Cummings’s drug use and the extensive criminal
history of his family. Moreover, had Mastos tried to put on this evidence, he
would have opened the door to damaging testimony. Presenting testimony as to
Cummings’s alleged psychological problems from his childhood and good
behavior in school would have opened the door to a strong rebuttal by the State
that would have included, at a minimum, (1) the evidence from Cummings’s North
Carolina prison file of Cummings’s repeated involvement in violent incidents
while in prison, (2) details of his three prior violent felony convictions, and (3)
considerable expert testimony as to Cummings’s antisocial personality disorder.
See Wong, 130 S. Ct. at 389 (recognizing that “heavyhanded,” “more-evidence-is-
better” attempt to portray defendant in positive light can invite strong negative
evidence in rebuttal). As Mastos himself testified, this would have wholly
undermined Mastos’s successful strategies of keeping the prison disciplinary
record out of the case, emphasizing Cummings’s humanity, and portraying his
family as close, loving, and supportive of one another. Furthermore, Cummings
was 33 years old when he murdered Good, and the State would have stressed that
his childhood was many years behind him. Accordingly, even had this 3.850
evidence been presented, there is no reasonable probability of a different result.
77
Cummings has not shown the required prejudice from Mastos’s penalty-phase
performance.
IV. CONCLUSION
For the reasons set forth above, we reverse the district court’s grant of a writ
of habeas corpus to Cummings on his claim of ineffective assistance in the
investigation and presentation of mitigation evidence in the penalty phase. We
affirm the district court’s denial of the remaining claims in Cummings’s § 2254
petition.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
78