Reed v. Secretary, Florida Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10059 ELEVENTH CIRCUIT
JAN 11, 2010
________________________
JOHN LEY
ACTING CLERK
D. C. Docket No. 05-00612-CV-TJC

GROVER REED,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS,
ATTORNEY GENERAL,

Respondents-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(January 11, 2010)

Before DUBINA, Chief Judge, CARNES and HULL, Circuit Judges.
HULL, Circuit Judge:

Florida death-row inmate Grover Reed appeals the district court’s denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court

granted Reed a certificate of appealability (“COA”) on his claim that his trial

counsel was constitutionally ineffective for failing to investigate and present

mitigation evidence at the penalty phase. After review and oral argument, we

affirm the denial of Reed’s § 2254 petition.

I. BACKGROUND

A. Crime and Arrest

In December 1985 Reed, age 24, and his girlfriend and two children moved

to Jacksonville, Florida. They were homeless. As a result, Lutheran minister Rev.

Ervin Oermann and his wife Betty Oermann invited Reed and his family to stay in

the Oermanns’ home. See Reed v. State, 560 So. 2d 203, 204 (Fla. 1990) (“Reed

I”). After a little more than a week, though, the Oermanns discovered Reed had

drug paraphernalia in their home, and the Oermanns asked Reed and his family to

leave. Id. Rev. and Mrs. Oermann continued to help Reed by giving him money

and transportation, but eventually stopped after they began to feel they were being

used. Id. Reed “resented the discontinuance of aid and vowed to get even.” Id.

On the evening of February 27, 1986, while Rev. Oermann was away from

2
home at a night class, Reed raped and murdered Mrs. Oermann (age 57). Rev.

Oermann returned home to find her body. An autopsy revealed Mrs. Oermann had

been strangled, raped, and stabbed repeatedly in the throat. After an investigation

linked Reed to evidence found at the crime scene, he was arrested.

B. Indictment and Pre-trial Proceedings

In July 1986, Reed was indicted for first-degree murder, sexual battery, and

armed robbery. Assistant public defender Alan Chipperfield initially represented

Reed but became conflicted out. In August 1986, the state trial court appointed

Richard Nichols, a private criminal defense attorney, to represent Reed.

In October 1986, Reed underwent a psychiatric evaluation to determine,

inter alia, whether Reed suffered from mental illness or mental retardation, the

nature and extent of any such mental illness or retardation, Reed’s competence to

stand trial, and Reed’s sanity at the time of the crimes. Psychiatrist Dr. Ernest

Miller evaluated Reed and filed a report with the state trial court. Social worker

Karen Kaldor, M.S.W., co-authored Dr. Miller’s October 30, 1986 report.

The report indicated Dr. Miller reviewed “extensive background information

furnished by Mr. Nichols,” including copies of Reed’s medical records from

Hendersonville Community Hospital (“Hendersonville Hospital”), Metropolitan

Nashville General Hospital (“Nashville General”), and the Middle Tennessee

3
Mental Health Institute (“Middle Tennessee MHI”). Dr. Miller obtained Reed’s

history and performed mental status tests. Because of Reed’s history of inhaling

gas fumes and lead poisoning, Dr. Miller had Reed undergo neurological tests,

including a 21-channel electroencephalogram test on October 20, 1986.

Dr. Miller’s report detailed Reed’s background and physical and mental

condition. The report stated that Reed understood the purpose of the examination,

the charges against him, his pleading options, and “the role of the various court

officers.” Reed claimed complete recollection of his circumstances on the day of

Mrs. Oermann’s murder, and told Dr. Miller he had ten alibi witnesses. As to

Reed’s family, educational, social, and vocational history, the report noted that

Reed: (1) was removed from his mother’s custody because of her alcoholism when

he was four years old; (2) was raised primarily by his grandparents, and his mother

shot and killed his father in self-defense; (3) had an eighth grade education, at

which point he left school to work in a sawmill because his family needed money;

(4) had a girlfriend, a child, and many friends; (5) was a self-described “jack of all

trades” who had worked as a concrete worker and in the steel and oil industries;

and (6) had no military service history.

As to Reed’s medical and psychiatric history, Dr. Miller reported that Reed:

(1) denied a family history of mental illness, epilepsy, or suicide; (2) denied

4
suffering from diseases; (3) suffered a fractured bone in his face from being struck

with a pool cue; and (4) was evaluated and treated in 1981 at Nashville General

and Middle Tennessee MHI for “lead encephalopathy related to the inhalation of

gas fumes,” but denied any other mental health care.

Although Reed drank heavily seven years before Dr. Miller’s evaluation,

Reed told Dr. Miller that he “slacked off after a period of treatment for this,” and

denied having a drinking problem anymore. Reed admitted huffing gasoline in the

past but denied using other drugs except “occasional marijuana.” Reed reported

“seizures associated with his inhalation of gas fumes.”

As noted earlier, Nichols gave Dr. Miller extensive hospital and medical

records. They indicated that in 1979 Reed underwent two “uneventful” days of

treatment at Hendersonville Hospital for “a fracture of facial and orbital bones.” In

November 1981, Reed was treated at Nashville General for “lead intoxication [and]

multiple substance abuse.” Reed was transferred from Nashville General to

Middle Tennessee MHI, where he was diagnosed with “Lead Encephalopathy due

to Chronic Lead Poison” and “Seizure Disorder caused by Valium Withdrawal

and/or Lead Encephalopathy.” The medical records noted that: (1) Reed had a

history of “abusive behavior and combativeness at home”; (2) Reed indicated he

“can’t control [his] nerves”; and (3) his family reported that Reed had a “long

5
history of confusion, short attention span, and bizarre behavior when high on

gasoline – fighting trees and garage door, screaming – but no bizarre behavior

when not high.”

Given his past lead encephalopathy related to gas fumes, Dr. Miller had

Reed undergo neurological tests. For example, the October 20, 1986

electroencephalograph report, which Dr. Miller ordered, showed that Reed was

examined with a “21-channel encephalograph with 20 scalp and 2 reference

electrodes, using 10-20 system of I.F.E.S. 3 montages including both serial and

linked pairs of electrodes.” During the test, Reed was awake, relaxed, and

cooperative, and was not sedated. The electroencephalogram recorded Reed’s

frontal, temporal, central, parietal, and occipital waking bandwidth. Reed had

normal regulation, symmetry, and synchrony results. The encephalographic report

concluded with Dr. Miller’s assessment: “Normal waking electroencephalogram.

No paroxysmal sequences, no regional abnormalities.”

Dr. Miller’s report concluded that Reed was of average native intelligence

and his cognitive faculties were intact. The report also concluded that Reed had “a

fair general fund of information”; was “well able to use verbal and mathematical

abstractions”; had a good ability to register, store, and retrieve data; and was “not

hallucinated or delusional.” The report noted that Reed had “[n]o pathologic

6
reflexes” and his “motor, sensory and cerebellar functions [were] normal.” The

report further advised that Reed was competent to stand trial, and that he “was able

to understand the nature, quality and wrongfulness of his acts” at the time of the

crimes. The state trial court, in turn, found Reed competent to stand trial.

C. Guilt Phase

The parties selected a jury on November 17, 1986. The guilt phase of

Reed’s trial began the next day and lasted three days. The State called fourteen

witnesses. One key piece of physical evidence was Reed’s baseball cap, which

was found under a table near Mrs. Oermann’s body. Witnesses testified they saw

Reed wearing his baseball cap on the day of the murder before the probable time of

death, but not afterwards. They “positively identified the cap as Reed’s because of

the presence of certain stains and mildew.” Reed I, 560 So. 2d at 204. Reed’s

fingerprints were on checks that were taken from the Oermann home and found in

their yard. Id. An expert witness testified that hairs found on Mrs. Oermann’s

body and in the baseball cap were consistent with Reed’s hair. Id. Another expert

testified that the semen found in Mrs. Oermann’s body could have been Reed’s.

Id. And Reed’s cellmate, Nigel Hackshaw, testified that Reed admitted breaking

into the Oermann home and killing Mrs. Oermann. Id.

7
 Reed decided not to testify or to present evidence in the guilt phase.1 On

November 20, 1986, the jury found Reed guilty of first degree murder, sexual

battery, and robbery with a deadly weapon.

D. Penalty Phase Before the Jury

After the verdict, the state trial court excused the jurors until the penalty

phase, which was scheduled to begin the following week. For various reasons,

Nichols made a strategic decision to pursue a penalty-phase strategy of residual

doubt and to present no evidence in the penalty phase.2

Reed had prior convictions. But the State agreed not to introduce any

evidence before the jury of any of Reed’s prior criminal acts if Reed stipulated that

he would not argue the statutory mitigating factor of no significant prior criminal

activity.3 Both Reed and the State ultimately agreed they would (1) rest on the

1
In response to the state trial court’s inquiries, Reed stated that he “discussed any and all
[potential] witnesses that [Reed] may have furnished to Mr. Nichols with him,” that Nichols
advised him not to present any witnesses, and that Reed concurred with Nichols’s advice.
Nichols told the court he advised Reed that putting on defense witnesses would forfeit Reed’s
right to give the first and last closing argument, and that “none of the witnesses that we
considered calling I thought would make a significant impact on the outcome of the trial and that
I didn’t think it was worth giving up the final argument in order to call those witnesses.”
Nichols did give the first and last closing argument in the guilt phase.
2
In a colloquy after the jury was excused, Nichols informed the state trial court that Reed
constantly had maintained his innocence, that a psychiatric examination was done already, and
that, if Nichols decided to explore more psychiatric testimony, he would let the court know.
3
Reed’s prior convictions were for second-degree burglary, petit theft, malicious
mischief, driving under the influence, and possession of drug paraphernalia.

8
evidence adduced during the guilt phase, (2) submit no evidence at the penalty

phase, and (3) proceed with closing arguments.

The parties informed the state trial court of their stipulation at the outset of

the November 26, 1986 penalty phase. The state trial court questioned counsel

about the stipulation. Nichols informed the court that he had advised Reed to

accept the stipulation because Reed had “at least one felony conviction and one

[petit] theft conviction,” which made it unlikely Reed would be able to establish

the no significant prior criminal activity mitigating factor in any event:

I have instructed Mr. Reed that one of the mitigating circumstances
that we might argue was an absence of a significant history and I’ve
told him that if we do that that [the State attorney] Mr. Bateh is going
to put in the record that evidence as to at least one felony conviction
and one petty theft conviction which I’ve told Mr. Reed that I think –
that if we were going to debate the issue whether or not that was
significant history or not, I told him I didn’t think we’d [fare] very
well and I have suggested to him that he allow me to do the stipulation
and . . . I have advised him that should we do that that we will not be
able to argue that factor, that I would be able to argue that there has
been no showing of any significant history of violence, but that I
could not make a reference to the lack of a criminal history and he has
agreed to that stipulation.

Reed confirmed to the state trial court that this was correct, that he understood, and

that he agreed to the stipulation.

Nichols then addressed the state trial court regarding other potential

mitigating evidence in the penalty phase. Nichols told the court that he had

9
reviewed with Reed the aggravating and mitigating factors and that Reed did not

want to testify during the penalty phase. Nichols added:

I have told Mr. Reed that he has a right, should he want to, to take the
stand and argue or to present evidence of his own testimony in this
hearing. I have – Mr. Reed has steadfastly maintained his innocence
and has instructed me that he does not want to take the stand and I
want to make sure the record reflects that he’s been advised that he
has a right, should he want to, that I’ve advised him against it and he
has told me that he concurs in that advice.

Reed stated that he agreed, and did not want to testify in his own defense during

the penalty phase.

The State argued to the jury that six aggravating factors existed, including

that the murder (1) was especially heinous, atrocious, or cruel, (2) was committed

in a cold, calculated, and premeditated manner, and (3) was for pecuniary gain.

The State also argued that no mitigating factors existed.

In response, Nichols told the jury that Reed maintained his innocence and

argued Reed’s life sentence should be spared because of residual doubt over his

guilt. Nichols explained that he would make little argument as to mitigating

circumstances because Reed was innocent and was not going to say “I did it and

here’s why I did it.” Nichols told the jury that although it had found Reed guilty

beyond a reasonable doubt, the State “d[id]n’t have to eliminate all doubt and it’s

that other aspect of any other doubt that as human beings you’re going to consider

10
. . . when you decide whether or not you’re going to vote to allow the state to take

the life of a human being.” Nichols argued that although the State’s evidence was

consistent with Reed’s guilt, it did not make Reed’s guilt certain.

After the jury retired to deliberate, the state trial court addressed whether it

would order a presentence investigation report (“PSI”). Nichols conferred with

Reed on this issue and told the state trial court that Reed did want a PSI so that the

court could consider some aspects of Reed’s background that Nichols did not argue

before the jury. The state trial court ordered a PSI to be prepared.

After deliberating, the jury voted 11 to 1 to recommend the death penalty.

The state trial court scheduled a hearing, at which it would consider any post-trial

motions and “anything in mitigation or aggravation of sentence which has not

already been presented to the Court.”

E. Penalty Phase Before the Judge

The post-trial hearing was originally scheduled for December 10 and held on

December 18, 1986. Nichols filed: (1) the hospital and mental health records from

Middle Tennessee MHI, Nashville General, and Hendersonville Hospital regarding

Reed’s drug dependency, toxic response from lead, and past emotional problems;

and (2) letters from other witnesses, including one from Archie Ray Brooks and

one from Reed’s family member and lifelong acquaintance Joe B. Webb. The state

11
trial court also had the PSI, signed December 9, 1986. The Florida Supreme Court

summarized the information in the PSI:

The presentence investigation report contained a socioeconomic status
report indicating: Reed’s highest completed grade was the eighth
grade; he previously was employed as a laborer and had five jobs in
the prior two years; his father died in 1961 after being shot by his
mother in self-defense; he had a one-year-old child to whom he
provided voluntary support; he was diagnosed as suffering from lead
intoxication and multiple substance abuse problems in 1981; and he
was hospitalized for approximately one month at that time due to what
Reed described as a “nervous breakdown.” Additionally, the report
contained comments by Reed’s grandmother indicating that she never
knew him to want to hurt anyone, believed his stepfather whipped the
children and withheld food, and gained custody of her grandchildren
due to Reed’s mother’s alcoholism and lack of interest in the children.
The psychiatric examination report indicated mental status and
neurologic testing were performed on Reed, as well as an extensive
background review. The report repeated that Reed had an eighth grade
education, was taken from his mother due to her alcoholism, and was
treated in 1981 for lead encephalopathy related to the inhalation of gas
fumes. The report reflected a normal waking electroencephalogram
and a clinical impression of substance abuse disorder. The past
medical records reflected Reed’s long history of gasoline sniffing,
Valium abuse, and the resulting lead encephalopathy and seizure
disorder upon drug withdrawal. They also contained doctors’ notes
indicating Reed had previously shown bizarre and abusive behavior
and combativeness at home.

Reed v. State, 875 So. 2d 415, 434 n.12 (Fla. 2004). The PSI itself is in the record

and indicates that in his interview, Reed “denied the use of any drugs or narcotics.”

The State filed certified copies of Reed’s prior convictions for second-

degree burglary, malicious mischief, driving under the influence, possession of

12
drug paraphernalia, and petit theft.

In January 1987, the state trial court sentenced Reed to death. The state trial

court found six statutory aggravating circumstances existed: (1) Reed was

previously convicted of other felonies involving the use or threat of violence to the

person;4 (2) Reed committed the murder while engaged in the commission of

sexual battery; (3) Reed committed the murder for the purpose of avoiding or

preventing a lawful arrest; (4) Reed committed the murder for pecuniary gain; (5)

the murder was especially heinous, atrocious, or cruel; and (6) Reed committed the

murder in a cold, calculated, and premeditated manner without any pretense of

moral or legal justification. The state trial court found that no mitigating

circumstances existed.

The state trial court found these statutory mitigating circumstances, among

others, were not present: (1) the murder was committed while the defendant was

under the influence of extreme mental or emotional disturbance, (2) the defendant

acted under extreme duress or under the substantial domination of another person,

or (3) the murder was committed while the defendant’s capacity to appreciate the

criminality of his conduct or conform his conduct to the requirements of the law

was substantially impaired. The state trial court stated:

4
In concluding this statutory aggravating factor was present, the state trial court noted
only that Reed “stands convicted of Sexual Battery and Armed Robbery in the instant case.”

13
 While no evidence was offered to show that any of these three
mitigating factors existed, the Court has, nonetheless, considered the
psychiatric examination report of Dr. Ernest Miller and Karen Kaldor,
dated October 31, 1986, and finds that there is no evidence to sustain
a finding that any of the three factors exist.

As to non-statutory mitigating circumstances, the state trial court stated that “[n]o

evidence has been presented to show the existence of any other factors which

should be considered in mitigation.”

F. Direct Appeal

Reed appealed his convictions and death sentence. Reed argued, inter alia,

that insufficient evidence supported four of the six aggravating circumstances

found by the state trial court. See Reed I, 560 So. 2d at 205-07.

The Florida Supreme Court affirmed but did uphold Reed’s challenge to two

of the six aggravating circumstances. It held the prior-violent-felony circumstance

was invalid because it relied only on the sexual battery and robbery of Mrs.

Oermann, and the cold, calculated, and premeditated circumstance was based on

insufficient evidence. Id. at 207. Nevertheless, the Florida Supreme Court

concluded that the elimination of two of the six aggravating circumstances would

not have changed Reed’s sentence. Id. The Florida Supreme Court rejected

Reed’s other claims as lacking in merit or not preserved for appeal. Id. at 205-07.

The United States Supreme Court denied certiorari. Reed v. Florida, 498 U.S. 882,

14
111 S. Ct. 230 (1990).

G. Rule 3.850 Motion, Appeal, and Remand

In February 1992, Reed filed in the state trial court a motion pursuant to

Florida Rule of Criminal Procedure 3.850 to vacate his convictions and sentence.5

Reed’s Rule 3.850 motion raised many claims, including that trial counsel Nichols

was ineffective in failing to investigate and present mitigation evidence in the

penalty phase.

In August 1992, the Rule 3.850 court denied Reed’s Rule 3.850 motion

without an evidentiary hearing. The Rule 3.850 court noted that, despite bringing

ineffective trial counsel claims, Reed was refusing to waive the attorney-client

privilege between him and Nichols or to disclose Nichols’s files to the State. By

doing so, the Rule 3.850 court stated, Reed “has precluded the State from obtaining

the discovery to which it is entitled.” Consequently, the Rule 3.850 court denied

an evidentiary hearing on Reed’s ineffective trial counsel claims. It also found

each of Reed’s assertions of deficient performance and prejudice were not

supported by the record.

Subsequently, the Florida Supreme Court affirmed the Rule 3.850 court’s

denial of Reed’s claims other than his ineffective trial counsel claims. Reed v.

5
We refer to the state trial court, in connection with Reed’s Rule 3.850 proceedings, as
the “Rule 3.850 court.”

15
State, 640 So. 2d 1094, 1095-98 (Fla. 1994) (“Reed II”). It reversed the Rule

3.850 court’s denial of an evidentiary hearing. Id. at 1096. The Florida Supreme

Court ruled that Nichol’s files must be produced, and remanded the case to the

Rule 3.850 court to hold an evidentiary hearing on Reed’s ineffective trial counsel

claims. Id. at 1097-98.

H. Rule 3.850 Evidentiary Hearing

Following a number of delays and further proceedings, including Reed’s

unsuccessful interlocutory appeal of the Rule 3.850 court’s order permitting the

State to review Nichols’s files, the Rule 3.850 court held an evidentiary hearing on

February 19-22, 2002. Eighteen witnesses testified. We summarize that testimony

as to Reed’s ineffective trial counsel claims as to mitigation evidence at the penalty

phase.

1. Alan Chipperfield: First Defense Counsel

Alan Chipperfield, who worked for the public defender’s office and was

Reed’s first defense counsel, testified for Reed at the Rule 3.850 evidentiary

hearing. Before Reed’s case was transferred to Nichols, Chipperfield was working

on gathering penalty phase information. Chipperfield was “real concerned with

Grover Reed’s history of huffing gasoline and the hospitalization that he had” for

lead encephalopathy, seizure disorder, and Valium withdrawal. Chipperfield

16
described his investigation and preparation of this mitigation evidence:

A First thing is we got the medical records from the hospital that
documented what we had been told by family members and
then we were doing research on the effect of huffing gasoline
on a person’s brain and behavior and we had talked about
getting witnesses. . . . “[W]e pulled some articles about lead
poisoning from different publications.
Q And what ideas did those articles give you for the defense?
A Well, it was primarily a penalty phase investigation and we
thought this would be mitigating if Grover Reed had organic
brain damage or had suffered convulsions or was addicted to
chemical substances or gasoline, and we believed that there was
a relationship between gasoline huffing and brain damage.
Q Do you remember which mitigator you were going to try to
apply that to?
A Well, it could apply to extreme mental or emotional
disturbance. It could apply to inability to conform his actions
to the requirements of the law or it could be – those two would
be statutory mitigators or it could be a non-statutory mitigator[]
if it was neither extreme nor substantial. It also affected his
childhood and could – if he wasn’t properly supervised in
childhood and therefore was allowed to huff gasoline all the
time from age nine I think at least you could present an
argument that he didn’t have real good parents.

Chipperfield noted that the Hendersonville Hospital and Middle Tennessee MHI

records reported Reed suffered “lead encephalopathy due to chronic lead poison

seizure disorder caused by valium withdrawal or lead encephalopathy.”

When the case was transferred to Nichols, Chipperfield was “very concerned

that [Nichols] should get information . . . that was relevant to [the] penalty phase

about lead poisoning.” Although at the time of the Rule 3.850 evidentiary hearing

17
Chipperfield did not recall whether he gave copies of his files to Nichols,

Chipperfield’s normal practice when a case was transferred was to make his files

available to the new attorney. As mentioned above, Dr. Miller’s report, issued in

October 1986, states that Nichols furnished Dr. Miller with the Hendersonville

Hospital, Nashville General, and Middle Tennessee MHI records to assist in his

evaluation. Thus, it is clear that Nichols had copies of the hospital records by

October 1986 at the latest.

2. Dr. James Larson: 1992 Psychological Evaluation

Reed also called Dr. James Larson, a clinical psychologist, who performed a

psychological evaluation of Reed in 1992, more than five years after Reed’s

sentence. Reed’s collateral counsel hired Dr. Larson and provided him with

background materials on Reed, including medical records and affidavits from

Reed’s family members, friends, and former school teachers.6 Dr. Larson based his

conclusions on his review of this background information, a psychological

interview of Reed, and cognitive testing which included neuropsychological and

6
Although Dr. Larsen did not have his complete file available during the evidentiary
hearing to refresh his recollection, he testified that this background information included: school
records from Robertson County, Tennessee and DeRidder, Louisiana; medical records from
Jesse Holman Jones Hospital, Henderson Hospital, Nashville Memorial Hospital, Metropolitan
Nashville General Hospital, and Middle Tennessee MHI; a September 1963 Robertson County
court order appointing a guardian for Reed; records from the Nashville Metropolitan Police
Department and the Jacksonville Sheriff’s Office; Florida State Prison medical and inmate
records; Dr. Miller’s evaluation report; and affidavits from Reed’s grandmother, mother, uncles,
siblings, church members, school teachers, and principal.

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personality tests.

In Dr. Larson’s opinion, “[t]here was considerable mental health mitigation

in this case.” Dr. Larson opined that there were two statutory mitigators: (1) “One

was for the offense for which the defendant was charged was committed while the

defendant was under the influence of extreme emotional disturbance”; and (2) “the

second one was whether his capacity to appreciate the criminality of his conduct or

to conform his conduct to the requirements of the law was substantially impaired.”

In Dr. Larson’s opinion, the non-statutory mitigators that could have been

presented were: (1) “impaired judgment, educational depr[i]vation, defect as a

child, abuse as a child, cultural depr[i]vation, actual physical abuse, emotional

abuse, alcohol abuse, adult child of an alcoholic”; and (2) “drug abuse, lead

poisoning, organic brain syndrome diagnosed by medical doctors, personality

disorder, history of mental illness as diagnosed by other physicians, deficiency of

positive role models,” and “possible interaction of organic brain syndrome and

alcohol or drugs during the time frame of the events.” Dr. Larson testified that

several of the non-statutory mitigating circumstances arose from Reed’s “very

chaotic background” that included his mother essentially abandoning him, his

being left with his grandmother, his stepfather abusing him, and his history of

substance abuse and huffing gasoline. Dr. Larson testified that huffing gasoline an

19
extended period of time causes irreversible brain damage, and that he observed

signs of that type of brain damage in Reed during his psychological testing. Dr.

Larson added that the medical records suggested Reed had suffered a head injury

as well.

On cross-examination, Dr. Larson admitted that during his interview, Reed

minimized the extent of his drug use. Also, as to the day of the murder, Reed

admitted drinking beer but denied huffing gasoline. Dr. Larson also admitted that

Reed had no indications of formal thought disorder and Reed’s thought processes

were “logical, coherent, relevant, and goal directed.” Dr. Larson found no

evidence of delusional disorders.7

As to personality, Dr. Larson diagnosed Reed as having characteristics of

antisocial personality disorder and narcissistic personality disorder. Dr. Larson

characterized Reed as selfish, self-indulgent, thrill-seeking without regard to

consequences, and easily bored and frustrated. Dr. Larson admitted that in many

cases in which he has made a diagnosis of antisocial personality disorder, he is not

asked to testify because it is an unflattering diagnosis:

Q Anti-social personality is not a pretty picture, is it?
A No. It’s oftentimes referred to as a criminal personality. It

7
As to intelligence, Dr. Larson testified that Reed had a verbal IQ of 83, a performance
IQ of 79, and a full-scale IQ of 79, which placed him in the “very upper part of the borderline
range and statistically not different than the very lowest part of the low average range . . . .”

20
 essentially has to do with – it’s a pretty picture in some ways.
It gives you a job because so many of the people you prosecute
would suffer from that kind of disorder.
Q Predisposition to criminality?
A That’s correct.
Q In your experience, Doctor, you are not called upon too often to
testify in front of a jury that anti-social personality disorder is a
form of mitigation, are you?
A No, but actually [I] have been called on several times, even
though the person does meet the criteria to explain to the jury
how the individual got this disordered personality, and so
sometimes when I have been called on by an attorney I have
explained how early conditions in childhood resulted in this
kind of personality development, but you are right, many times
attorneys steer away from using me in testimony when I have
used that kind of diagnosis in the diagnostic work.
Q And that’s because an anti-social behavior is what really
underlies a sociopath, is that right?
A Yes.
Q And a sociopath is a person who in a very literal, rubber meets
the road sense of the word just doesn’t give a damn, is that
right?
A Yes.
Q This is the ultimate narcissistic personality, is that right?
A Yes.

3. William Reed: Family Background

Reed also called his brother William Reed (“William”) to testify. William

and Reed had “a pretty rough childhood.” Their parents married when their father

was eighteen and their mother was fourteen. Their father was “bad about drinking

and fighting” and their parents “fought all the time.” During one fight when

William was four years old and Reed was an infant, their father came home drunk

21
and threw a pot of coffee on their brother Tony and threatened to kill them and

their mother. Their mother locked the children in a bedroom and shot their father

with a shotgun and killed him.

Their mother remarried two years later, but after a few years the children

went to live with their grandparents. After a time they went back to live with their

mother and her husband Charles Lassman. Stepfather Lassman was drunk and

abusive to the children and their mother. William stayed out of Lassman’s way,

but “some nights I seen him beat [their sister] Diana and [Reed] all night long.”

Lassman was the most violent man William had ever seen. Lassman beat Reed

because Reed had a bed-wetting problem.8

One time Lassman made all the children watch while he beat their mother,

and William took one of Lassman’s guns, pointed it at him, and told him to stop.

Another time their grandmother chased Lassman out of the house with the butcher

knife after she saw the scars on Diana and Reed from where Lassman beat them.

After that, the children went back to live with their grandmother. While they lived

with their grandparents, they heard from their mother only about once a year. She

didn’t see them, talk to them, or give them presents on their birthdays or at

8
As discussed later, Diana Reed testified they lived with Lassman only eight months and
she was beaten too for her bed-wetting.

22
Christmas.9

William testified how the abuse they suffered affected him and his siblings:

[T]he way I felt and everyone of us Reed’s family if there is people
out there do us and nobody do nothing about it then we are going to
get them before they get us, and that’s exactly the way we felt
growing up, and the only people we really cared about was our two
grandparents and the people that were around there, my aunts and
uncles and that was it, and [Reed] it affected him so bad that he had
always been extremely nervous – made us all nervous.

After they went to live with their grandparents, Reed received little discipline at all

because their grandmother was very indulgent with Reed. William testified that

his brother Reed was a “con artist” and would manipulate their grandmother into

letting him get what he wanted:

[Reed] was like a con artist. I mean he had a way about wrapping
[their grandmother] around his little finger and getting what he wanted
and we never could figure out how he done it. . . .

Although all the children experienced this difficult childhood, William admitted

that none of Reed’s three siblings (William, Diana, or Tony) had been charged

with murder, and none were in prison for anything.

William testified that at about age ten Reed started huffing gasoline and

went downhill. Reed “would get so high that he didn’t know what he was doing.

He would strike at anything, walls, anything.” Afterward Reed began using other

9
The PSI states that Reed’s grandmother got a lawyer and obtained custody of Reed and
his three siblings William, Tony, and Diane Reed.

23
drugs.

One time when Reed was huffing gasoline, his grandmother told him she

wouldn’t let him come in and eat supper, and Reed punched her and broke her

nose. William and their grandmother went to talk to Reed. Reed agreed to go to

drug rehabilitation, where he stayed about six weeks. But after getting out, Reed

started using drugs again.

Before Reed moved to Florida, Reed stayed with William and his wife.

William warned Reed not to use any drugs while staying at his house. When

William’s wife found a needle in the couch, William asked Reed to leave. Reed

was angry and threatened to kill William’s wife. William threatened his brother

back. William “knew [Reed] wasn’t going to do nothing. He was just threatening

her.” Reed left William’s house and moved to Florida, and that was the last

William saw of his brother.10

4. Diana Reed Watts: Family Background

Reed also called his sister Diana Reed Watts (“Diana”). Diana testified that

Lassman beat his stepchildren with a rope that he hung on the back porch to get

wet with dew and then harden while it dried. Reed and Diana were Lassman’s

10
No one contacted William to see if he could testify on Reed’s behalf until about ten
years after Reed’s trial was over. William did not come to the trial. Nor did he contact Reed or
his attorney.

24
most frequent targets because they wet their beds. When they did, Lassman

would beat us and then the next night we would have to sleep on the
floor on the Army blanket and [when] we wet that we would hang it
out on the line to dry and they would throw it back on the floor for us
to sleep on that night.

Although Reed had no bed-wetting problems before they moved in with their

mother and Lassman, Reed and Diana wet their beds every day for the eight

months they lived with Lassman. Reed and Diana “had bruises and whips all over

us.”

Their mother did not protect them from Lassman, and caused most beatings

by falsely telling Lassman they disobeyed her. Also, their mother beat them

herself with electrical cords. Lassman once invited them to say if they wanted to

go back to live with their grandparents. When Reed told Lassman he did, Lassman

made them spend three days kneeling before their mother and praying to her to

forgive them.

On cross-examination, Diana admitted that she and her brothers William and

Tony grew up in the same conditions as Reed did, and none of them were ever

arrested for a violent crime. Diana did say that she, Tony, and all of their half-

siblings (but not William) have had substance abuse problems.

5. Ronnie Yates: Personal Background

Reed called Ronnie Yates, his middle school physical education teacher.

25
Yates testified that Reed struggled as a student and repeated both seventh and

eighth grades. Reed enjoyed Yates’s P.E. class and showed some leadership skills

there. On several occasions Reed showed up at school after having drunk alcohol.

One time Yates had to get Reed to leave a school dance because Reed was drunk.

Yates believed Reed did not have the family support and structure that he needed.

Yates believed that Reed’s academic problems stemmed from a failure to apply

himself and from a lack of family encouragement and support.

6. Christine Niznik: Drug Use

Christine Niznik, Reed’s girlfriend and the mother of his child, testified for

Reed as well. Reed had a drug problem throughout their relationship. He drank a

lot, and also made and used a methamphetamine-type drug called “stove top” that

he cooked on the stove and injected. Niznik said she injected stove top with Reed,

but she did not use it anymore. Reed was “possibly” using stove top “around the

time of the murder.” The drug abuse that scared Niznik the most was Reed’s

gasoline huffing, because it made him act “wild” and hallucinate; it made him

“different.” When huffing gasoline, Reed “looked like he was mad” and “would

raise his voice at things that weren’t there.” When Reed was under the influence of

gasoline, Reed did not appear to be in control of himself, but Niznik couldn’t say

whether he was capable of controlling himself. On cross-examination, Niznik

26
admitted that she was abusing drugs and alcohol with Reed on a regular, almost

daily basis, and that she was “just as guilty as he is about that.”

7. Richard Nichols: Trial Counsel

Reed did not call his trial counsel Richard Nichols to testify, but the State

did. At the time of Reed’s trial in November 1986, Nichols had been a lawyer for

thirteen years, and his practice at that time was mostly criminal defense. Before

private practice, Nichols was a prosecutor, and he had probably tried more than

thirty homicide cases either as a prosecutor or defense counsel. Most of the

homicide cases he tried were capital cases. In at least three cases, including one

murder case, Nichols called no witnesses at trial and obtained a not-guilty verdict

for his client.

Nichols began representing Reed after the public defender’s office had a

conflict. The public defender’s office already had done some work on the case by

the time Nichols was appointed. In preparing for trial, Nichols had discussions

with Reed.11 Those discussions included whether or not they would present

mitigation witnesses. Nichols testified that Reed instructed him not to present

mitigation evidence that either implied guilt or involved his family and friends:

11
Although Reed never explicitly confessed guilt to Nichols, Nichols’s discussions with
Reed left Nichols with the impression that Reed had committed the crime. Nichols testified that
the oblique admissions that Reed made to him did not, in Nichols’s mind, lessen his obligation to
test the sufficiency of the State’s evidence or the credibility of its witnesses.

27
 Q Turning to the . . . penalty phase of the trial and a decision to
present mitigation or not present mitigation, did you discuss
with Grover Reed whether you were going to present mitigation
witnesses or not?
A Yes.
Q And what did he tell you?
A Well, . . . mitigation comes in a couple different forms.
Q Yes, sir.
A One of the forms at least requires that you essentially say, yes, I
did it but here is why and that would have been testimony about
anything that had to do with his psychiatric or medical
condition and he clearly instructed me not to argue anything
that would imply that he was guilty and not to say he was guilty
but here that you should forgive him or minimize this because
of A, B and C, and other aspects of mitigation is just to bring in
family and friends to show that he is relatively a nice fellow and
this was some – not part of a pattern of behavior but just some
aberration, and he essentially told me he did not want any of his
family or friends to have to be subjected to this process and he
didn’t want mitigation called in either of those categories.[12]

(Emphasis added). When Nichols was asked whether he explained to Reed the

risks of not putting on mitigation testimony in the penalty phase, Nichols stated

that he was “sure we talked about it” and “I am sure I also had told him that prior

to the penalty phase that there was a high likelihood that he was going to be found

guilty of this.” As discussed later, Nichols even had Reed sign an affidavit stating

that “My attorney has advised me that he believe[s] the chances of being sentenced

12
Based on this testimony, Reed argues that Nichols’s decision not to present mitigation
evidence was based upon a mistaken belief that mitigation necessarily involves an admission of
guilt. We disagree with this characterization of Nichols’s testimony. Fairly read, Nichols’s
testimony states that many avenues of mitigation evidence imply that the defendant is guilty
while seeking to explain or minimize culpability for the crime, not that mitigation requires or
necessarily involves an admission of guilt.

28
to death were hypothetically less if I pled guilty and presented mitigating

psychological evidence.”

Reed’s instruction to Nichols not to put on mitigation testimony came during

a conversation after the guilt phase. Nichols reiterated that Reed agreed with the

decision not to present mitigation testimony:

Q So [Reed] agreed or concurred with the decision not to put on
any mitigation testimony in the presence of the jury?
A Yes, and I am sure that there was some inquiry made. There
was an affidavit that I think I wrote out by hand where he said
he did not want any of these people called. Whether or not
there was an inquiry made by the Court prior to the
announcement that we were not going to call anybody I can’t
imagine that was not done but I don’t recall it specifically.
Q And that affidavit, was that made a part of the record?
A I think so. I am not – I don’t know for sure.

Nichols also explained that he decided strategically that he would present

some mitigation evidence to the state trial judge, instead of to the jury, because it

was medical or psychiatric evidence (such as Dr. Miller’s report of Reed’s gasoline

huffing) that a jury would not respond well to, but that a judge was more likely to

see in a favorable light:

Q . . . No actual testimony was put on in mitigation to the jury
itself, but did you make a decision at the sentencing hearing
itself, that is before the Judge did you make a decision to
present mitigation to – directly to the Judge?
A Yes.
Q And what did you present to the Judge?

29
 A It’s my recollection that I think it was Dr. Miller . . . had done
an examination and part of that examination there were details
concerning I think the huffing of gasoline and some other
things of that nature that were presented to the Court.
Q And was part of your decision to present that to the Court only
was that you did not feel that huffing gasoline would be
mitigation to the jury?
A Yeah. Part of my decision was Mr. Reed’s instruction not to
argue that kind of mitigation, but had I had the choice I
probably would not have argued it because the nature of this
crime, and it was a particularly brutal scenario once it was all
presented to the jury, was one such that I didn’t think the jury
would really react well to that sort of medical or psychiatric
mitigation, whereas I thought the Court would be more I guess
sensitive – I think that the Court would understand the impact
of that more than a jury would and not find it to be a shallow
offer of mitigation.
Q So you thought that you still had a chance with the Court at that
point to mitigate it and perhaps get a life – a life sentence from
the Judge?
A Yeah. It was a strategy decision. I thought although it’s not
very likely in my experience that a Judge is going to override a
large – as I recall I think the vote was 11 to 1 for death in this
recommendation, I didn’t think it was very likely the Judge
would override it but that I thought it was much more likely
that a Judge would take that into serious consideration than
would the jury.

Nichols testified specifically that with respect to Dr. Larson’s diagnosis of

antisocial personality disorder, if he had known Reed suffered from this disorder,

he would have chosen not to present that evidence to the jury because he didn’t

think a jury would find it mitigating and because Dr. Larson’s diagnosis was

“essentially the profile of a person who is going to be violent when it fits their

30
need”:

Q Would you put on the fact that Grover Reed suffered from an
antisocial personality disorder?
A No.
Q Why not?
A I don’t think a jury would find that mitigating.
Q And is that because anti-social personality disorder is basically
a personality of a criminal?
A The report that I am now aware of [by Dr. James Larson, issued
in 1992] that [Reed] is – that he had that particular disorder and
I think they said with narcissistic tendencies is essentially the
profile of a person who is going to be violent when it fits their
need.
Q And effective cross examination from a prosecutor would have
brought that out to the jury?
A I would think so, yes.

I. Second Rule 3.850 Order

After the evidentiary hearing, the Rule 3.850 court issued an order denying

the remaining claims of Reed’s Rule 3.850 motion. The Rule 3.850 court divided

Reed’s penalty-phase ineffective assistance claims into the failure to present

mitigating evidence of (1) Reed’s family and personal background, and (2) mental

health testimony. The Rule 3.850 court found that Reed failed to satisfy either the

performance or prejudice prongs for either claim.

As to Reed’s family/personal/background mitigation claim, the Rule 3.850

court first noted the uncontroverted facts that Reed (1) “specifically refused to

permit trial counsel to offer mitigation which would in any way suggest his guilt of

31
the crimes with which he had been charged,” and (2) at least twice instructed

Nichols not to involve his family members in the trial. The Rule 3.850 court found

confirmation of these instructions in Reed’s handwritten waiver of trial evidence

form executed on November 19, 1986:

At the evidentiary hearing, it was uncontroverted that the defendant
specifically refused to permit trial counsel to offer mitigation which
would in any way suggest his guilt of the crimes with which he had
been charged. Furthermore, apparently on at least two (2) occasions,
the defendant instructed trial counsel not to involve family members
in the trial. That the defendant gave trial counsel such instructions is
confirmed (albeit indirectly) by the handwritten waiver form signed
by the defendant. While the form is more directly related to the
defendant’s waiver of trial evidence, paragraphs seven (7) and twelve
(12) confirm trial counsel’s testimony regarding the defendant’s
instructions declining any evidence of his guilt. It also confirms that
trial counsel and the defendant discussed the admission of
psychological evidence. The entire form is included herewith to
insure context. (Bolding is supplied).
1. I am Grover Reed, the defendant in 1st Degree Murder
case in Duval County, Fla., Cs# 86-6123 CF Div. W.
2. Throughout this case both publicly and privately and in
all conversations with my attorney I have constantly
maintained my complete innocense [sic] of all these
charges.
3. I have complete and clear recollection of the events
before[,] during, and after Feb.[ ]27, 1986. There are no
voids or gaps in my memory of this period.
4. On Feb. 27, 1986 I was never at or near the residence of
Betty Oermann, the victim in this case.
5. I have not provided my attorney with the names of any
people who were with me from the time Mike
Shelbour[n]e left me with the broken down auto (about
2:30 p.m. 2-27-86) until I returned home to the trailer
park because I was not with nor did I see anyone whose

32
 name I know during that time.
6. My attorney has discussed with me the possibility of a
defense based on a theory that I in fact killed the victim
but was temporarily insane.
7. I have refused to allow my attorney to as[s]ert or put
forward any defense which assumes or implies I
murdered Betty Oermann.
8. I understand the State argues 1st and last during closing
argument [] if I call any witnesses other than myself. But
my attorney argue[s] 1st and last if I call no witness other
than myself.
9. Although my attorney and I have discussed calling
certain witnesses I believe that no witness could establish
an[] alibi for me and no witness could contribute
evidence which was not available either through my own
testimony, if I testify, or through the state[’]s own
witnesses.
10. I have therefore instructed my attorney to call no
witnesses nor to offer any evidence in my behalf so my
attorney can have 1st and last argument[.]
11. My attorney has advised me that there is a high
likelihood that I will be convicted of 1st Degree Murder
and if convicted that I will be given the death penalty.
12. My attorney has advised me that he believe[s] the
chances of being sentenced to death w ere
hypothetically less if I pled guilty and presented
mitigating psychological evidence.
13. No offers have been made by the State to induce me to
plead.
14. I have advised my attorney that although I understand his
advice I will not plead guilty because I am not guilty.
11-19-86
(Signed Grover B. Reed)

In light of Reed’s instructions to Nichols, the Rule 3.850 court concluded “that the

defendant waived the presentation of mitigation evidence by his instructions to

33
counsel [and] cannot now be heard to complain.”13

The Rule 3.850 court noted the testimony of Yates, William, and Diana

about Reed’s “horrific childhood, his substance abuse, and his propensity to

violence.” The Rule 3.850 court concluded that it was unlikely the jury would

have found their testimony to be mitigating, especially given the fact that Reed

threatened William’s wife:

In assessing the evidentiary hearing testimony, this Court concluded
that it is highly unlikely that the jury would have considered this
evidence to be mitigating. In fact, the brother related an instance in
which he had taken the defendant into his residence because of the
defendant’s destitute situation. During the course of that stay, the
brother found that the defendant was continuing his substance abuse
and essentially evicted him from his home. Sometime during the
course of this conflict, the defendant threatened the brother’s wife.

The Rule 3.850 court determined that these facts were “entirely too similar” to the

facts the jury heard in the guilt phase – that is, that Reed “was again taken into

someone’s residence, again lost his permission to be in the residence, and again

threatened the woman of the house.” The Rule 3.850 court also stressed the

testimony that Reed attacked his grandmother and broke her nose. The Rule 3.850

court found that had Nichols known of the Rule 3.850 testimony, he would not

13
The Rule 3.850 court also found confirmation for Reed’s alleged desire not to have his
family members involved in his defense from William’s testimony at the Rule 3.850 evidentiary
hearing that Reed left Tennessee after fighting with William and didn’t contact William for at
least ten years.

34
have introduced it because it – or the information the State could adduce on cross-

examination – was consistent with the State’s position that Reed was a violent drug

abuser:

[H]ad this evidence been known to trial counsel at the time, it is likely
that he would not have opted to introduce it. If nothing else, the
evidence would tend to support the state’s trial position that the
defendant was a substance abuser prone to violence.
It should also be noted that had these family members testified,
they would have more than likely been cross-examined by the state on
the defendant’s criminal record, his substance abuse, his propensity to
violence and his otherwise questionable character. Although trial
counsel might not actually have known at the time what the family
members would have testified to (as he followed his client’s
instructions not to contact them), it is implausible to believe that he
would have called them to the stand to have the jury learn anything
about his client which was consistent with the state’s position in the
case.

As to the family and personal-background evidence, the Rule 3.850 court

concluded that even absent Reed’s instruction that mitigation evidence not be

presented, Reed could not prove either deficient performance or prejudice because

the negative nature of the Rule 3.850 evidence was so damaging as to outweigh

any mitigating qualities:

Forgetting for a moment this Court’s conclusion that defendant
effectively waived the opportunity to present mitigation evidence,
upon the evidence actually presented at the evidentiary hearing, this
Court cannot conclude that there was any deficiency on the part of
counsel had the witnesses been available for trial. It seems obvious
that the negative nature of their testimony about the defendant would
have been so damaging to the defendant as to far outweigh any

35
 mitigative qualities that there may have been to the evidence
regarding the defendant’s less than pleasant childhood. Accordingly,
even if the evidence had been known to trial counsel, this Court
cannot conclude that, had the witnesses testified, there would have
been any difference in the outcome of the trial. In fact, it appears
more likely than not that had they testified, the result would have been
virtually the same.

As to Reed’s mental health mitigation evidence claim, the Rule 3.850 court

noted that although Nichols presented no such evidence to the jury, he did present

it to the state trial court:

It should also be noted at this point that, although counsel did
not present mitigation evidence to the jury, he did present mitigation
evidence to the trial court. That evidence consisted of the reports of
Dr. Ernest Miller, a local psychiatrist, who had examined the
defendant at the request of trial counsel during the course of his
representation of the defendant. Dr. Miller’s report documented the
defendant’s substance abuse, huffing of gasoline, and other
psychiatric imbalances which were presumably considered by the trial
court. In addition, trial counsel introduced hospital admission records
indicating drug dependency, and records from a mental health facility
showing mental health problems. . . . [T]he state’s post-evidentiary
hearing memorandum indicates that the records contained a diagnosis
of “chronic lead poisoning encephalopathy with seizure disorder.”

The Rule 3.850 court reviewed Dr. Larson’s testimony, including his opinion that

Reed exhibited an impaired capacity to conform his conduct to the law’s

requirements, impaired judgment, educational and cultural deprivation, physical

and emotional abuse, drug use, and organic brain syndrome. The Rule 3.850 court

also noted Dr. Larson’s testimony that Reed had an antisocial personality disorder

36
with narcissistic personality disorder, and that persons with such diagnoses “tend

to be selfish, self-indulgent, . . . frequently seek thrills without regard to their

consequences . . . [and] are likely to be people who exploit others.”

Given the testimony of Dr. Larson, Nichols, and Chipperfield, the Rule

3.850 court found that had Nichols known what Dr. Larson’s testimony would

have been, Nichols would not have offered it anyway:

Assuming for a moment that trial counsel had the defendant’s
permission to present this form of mitigation evidence, which he did
not, this Court concludes that trial counsel would not have offered the
testimony of Dr. Larson anyway. Such a decision would have been
appropriate given the facts of the murder and rape of which the
defendant was convicted and the nature of Dr. Larson’s diagnosis.
This Court concludes that it is all too likely that this sort of psychiatric
testimony would have fit perfectly into the picture of the defendant
painted by the state at trial, a substance abuser whose self-indulgence
permitted him to commit unrestrained acts against others, including
those who had ventured to love and care for him.
At the evidentiary hearing, [Chipperfield] testified that the
concept of offering psychiatric/psychological mitigation evidence is
“a real complicated one” where the defendant is diagnosed as a
sociopath or with an anti-social personality. According to Mr.
Chipperfield, “It is hard to put on a penalty phase where that’s your
only diagnosis.” He further acknowledged that such a diagnosis is not
a “real favorable” one, and that at least a large part of the problem is
that the diagnosis of anti-social personality is one of a person who
basically has no regard for the rights and feelings of others.
Trial counsel testified at the evidentiary hearing that (had Dr.
Larson examined the defendant before trial), trial counsel would not
have put before the jury the fact that defendant suffered from anti-
social personality disorder. Trial counsel related that he didn’t think a
jury would find that sort of evidence mitigating because anti-social
personality disorder with narcissistic tendencies is “essentially the

37
 profile of a person who was going to be violent when it fits their
need.” Trial counsel was further concerned that effective cross-
examination by a prosecutor would have brought all of this
information out before the jury.

Consequently, the Rule 3.850 court concluded that Reed “failed to establish a

deficient performance on the part of trial counsel” for not presenting mental health

mitigation evidence because even if Reed had granted his permission for such

evidence to be presented, Nichols “understandably would not have done so.”

Moreover, in light of Dr. Larson’s testimony, the Rule 3.850 court concluded that

“had he testified at trial, the primary thrust of his testimony would have resulted in

aggravation against the defendant rather than mitigation for the defendant.”

J. Second Rule 3.850 Appeal & State Habeas Petition

Reed appealed the Rule 3.850 court’s denial of his Rule 3.850 motion to the

Florida Supreme Court, and also filed in the latter court his state habeas petition.

The Florida Supreme Court affirmed the Rule 3.850 court’s order denying Reed’s

remaining Rule 3.850 claims and denied Reed’s state habeas petition. See Reed v.

State, 875 So. 2d 415, 418 (Fla. 2004) (“Reed III”). The Florida Supreme Court

pointed out that: (1) trial counsel Nichols “clearly investigated or was aware of

Reed’s background and mental health to an extent, as evidenced by the presentence

investigation report, psychiatric report, and medical records presented to the trial

court for penalty-phase consideration”; (2) those “reports and records contained

38
much of the mitigating information testified to by Reed’s brother and sister”; and

(3) “even if Reed’s counsel had gone against his client’s wishes and investigated

further, the testimony that could have been presented was just as likely to have

resulted in aggravation against rather than mitigation for Reed.” Id. at 436-37.

The Florida Supreme Court concluded that Reed’s alleged mitigation evidence

presented “a double-edged sword.” Id. at 437. As examples, the Florida Supreme

Court noted that “the family background testimony involved numerous facts that

placed Reed in a very negative light, such as that he once broke his grandmother’s

nose, abused drugs over many years, was jailed on various occasions, continued his

drug use after his brother took him in on the condition that he stop using drugs, and

threatened to kill his brother’s wife.” Id. The Florida Supreme Court added that:

(1) “[n]ot only was this evidence negative in general but was also particularly

disadvantageous in light of the facts of the crime”; (2) this evidence “would have

opened the door for the State to draw a parallel between Reed’s violent reaction to

being evicted from his brother’s home due to his drug use and the victim’s murder

after she and her husband discontinued assistance to Reed, also due in part to his

drug use”; and (3) “testimony regarding Reed’s violence toward his grandmother

and threats toward his brother’s wife would have established a pattern of violence

against women who had taken him into their homes.” Id.

39
 As for the mental health evidence, the Florida Supreme Court found that

“Dr. Larson himself acknowledged certain aspects of his examination and

testimony might have been more helpful to the State than the defense,” and

“antisocial personality disorder is a trait most jurors tend to look disfavorably

upon.” Id. (quotation marks omitted).

The Florida Supreme Court reasoned that Reed’s case was distinguishable

from Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003), because “Wiggins’

counsel’s failure to thoroughly investigate ‘resulted from inattention, not reasoned

strategic judgment.’” Reed III, 875 So. 2d at 437 (quoting Wiggins, 539 U.S. at

526, 123 S. Ct. at 2537). In contrast, the Florida Supreme Court pointed out that in

Reed’s case: (1) there is competent, substantial evidence that Nichols advised Reed

of the risks of not presenting mitigation evidence and that Reed steadfastly rejected

its presentation; and (2) a comparison of the 3.850 testimony with the information

in the presentence investigation report, Dr. Miller’s report, and the hospital records

that Nichols presented to the trial judge revealed that Nichols was aware “of the

family and medical facts of Reed’s background relevant to mitigation, including

that Reed’s education was limited, his father died after being shot by his mother,

his mother suffered from alcoholism, and he was previously diagnosed as suffering

from lead encephalopathy and substance abuse problems.” Id.

40
 The United States Supreme Court denied Reed’s certiorari petition. Reed v.

Florida, 543 U.S. 980, 125 S. Ct. 481 (2004).

K. Federal Habeas Proceedings

On July 5, 2005, Reed filed his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. Reed’s § 2254 petition claimed, among other things, that Nichols

rendered ineffective assistance at the penalty phase by not adequately investigating

and presenting mitigation evidence.

On September 29, 2008, the district court denied Reed’s § 2254 petition in a

lengthy, comprehensive order. With respect to each of Reed’s claims, the district

court concluded that the state courts’ decisions denying him relief were not

contrary to established federal law, did not involve an unreasonable application of

established federal law, and were not based on an unreasonable determination of

the facts in light of the evidence presented in the state court proceedings. Reed

filed this appeal.14

II. STANDARD OF REVIEW

Pursuant to § 2254(d), as amended by the Antiterrorism and Effective Death

14
As mentioned, the district court granted Reed a COA on his mitigation evidence claim.
The district court also granted a COA on Reed’s two claims that: (1) the State’s peremptory
challenges violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986); and (2) Reed’s
trial counsel was constitutionally ineffective for failing to utilize a blood-type expert at the guilt
phase. We affirm the district court’s denial of these latter two claims for the reasons set forth in
the district court’s thorough and well-reasoned order.

41
Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief to a

state prisoner

unless a state court’s adjudication of a claim “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 the relevant state-court decision “was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”

Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007) (quoting 28

U.S.C. § 2254(d)(1), (d)(2)) (citation omitted). “The question under AEDPA is not

whether a federal court believes the state court’s determination was incorrect but

whether that determination was unreasonable – a substantially higher threshold.”

Id.

“We review de novo the district court’s decision about whether the state

court acted contrary to clearly established federal law, unreasonably applied

federal law, or made an unreasonable determination of fact.” Smith v. Sec’y, Dep’t

of Corr., 572 F.3d 1327, 1332 (11th Cir. 2009). Thus, under AEDPA we review

the district court’s denial of Reed’s § 2254 petition de novo, but we “owe

deference to the final state habeas judgment.” Peterka v. McNeil, 532 F.3d 1199,

1200 (11th Cir. 2008), cert. denied, 129 S. Ct. 1039 (2009).

III. DISCUSSION

A. General Principles: Ineffective Assistance of Counsel

42
 To establish ineffective assistance of counsel, a defendant must show (1)

“that counsel’s performance was deficient,” and (2) “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). To show ineffective assistance, the defendant must satisfy both

the performance and prejudice prongs. Id.

As to counsel’s performance, “the Federal Constitution imposes one general

requirement: that counsel make objectively reasonable choices.” Bobby v. Van

Hook, 558 U.S. —, 130 S. Ct. 13, 17 (2009) (quotation marks omitted). Thus, to

establish deficient performance, a defendant must show that his counsel’s conduct

fell “‘below an objective standard of reasonableness’ in light of ‘prevailing

professional norms’” at the time the representation took place. Id. at 16 (quoting

Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65). In assessing the

reasonableness of counsel’s performance, courts must “indulge a strong

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

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (quotation marks

omitted). “[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices

43
made after less than complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on investigation.”

Id. at 690-91, 104 S. Ct. at 2066.

Furthermore, the defendant’s own words and deeds play a role in assessing

the reasonableness of counsel’s conduct. See id. at 691, 104 S. Ct. at 2066 (“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.”). A mentally competent defendant’s

instruction not to investigate or not to present mitigation evidence may make

counsel’s decision not to investigate or present mitigation evidence reasonable.

See, e.g., Cummings v. Sec’y for the Dep’t of Corr., — F.3d. —, 2009 WL

4452816, at *23-25 (11th Cir. Dec. 4, 2009) (collecting cases); Blankenship v.

Hall, 542 F.3d 1253, 1276-77 (11th Cir. 2008); Newland v. Hall, 527 F.3d 1162,

1202-05 (11th Cir. 2008), cert. denied, 129 S. Ct. 1336 (2009). Although counsel

may not “blindly follow” his client’s instructions not to look for or use mitigation

evidence, Newland, 527 F.3d at 1208; Dobbs v. Turpin, 142 F.3d 1383, 1388 (11th

Cir. 1998), when a competent defendant clearly instructs counsel not to investigate

or not to present mitigation evidence, the scope of counsel’s duty to investigate is

44
significantly more limited than in the ordinary case. See, e.g., Cummings, 2009

WL 4452816, at *25 (collecting cases); Knight v. Dugger, 863 F.2d 705, 750 (11th

Cir. 1988); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir. 1986).

To establish 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. In considering whether prejudice exists, courts

must look at all the available mitigation evidence – both the trial evidence and the

evidence adduced during postconviction proceedings – and then re-weigh that

evidence against the evidence in aggravation. Williams v. Taylor, 529 U.S. 362,

397-98, 120 S. Ct. 1495, 1515 (2000). In that process, what matters is not merely

the number of aggravating or mitigating factors, but their weight. Van Hook, 130

S. Ct. at 20.

Thus, the prejudice-prong question in this case “is whether there is a

reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. In this question,

too, the defendant’s instructions to counsel are relevant. See Landrigan, 550 U.S.

45
at 475-77, 127 S. Ct. at 1941-42 (stating that where a defendant instructed his

counsel not to offer any mitigation evidence and “would have . . . refused to allow

his counsel to present any such evidence,” “counsel’s failure to investigate further

could not have been prejudicial under Strickland”); Cummings, 2009 WL

4452816, at *26; Gilreath v. Head, 234 F.3d 547, 551 n.12 (11th Cir. 2000).

B. Reed’s Claim: Performance Prong

Reed argues that Nichols’s investigation of mitigation evidence was

objectively unreasonable, as was his decision not to present mitigation evidence to

the jury in the penalty phase. Reed further argues that the Florida state courts’

contrary conclusions were unreasonable. We disagree.

As to Nichols’s investigation, the Florida Supreme Court found that Nichols

“clearly investigated or was aware of Reed’s background and mental health to an

extent,” given especially the materials Nichols submitted to the state sentencing

court. Reed III, 875 So. 2d at 436. As to Nichols’s decision not to present

mitigation evidence to the jury, the Florida Supreme Court determined that Reed

did not show deficient performance by Nichols because (1) Reed steadfastly

instructed Nichols not to present it and, (2) in any event, the proposed mitigation

evidence “present[ed] a double-edged sword” and “the testimony that could have

been presented was just as likely to have resulted in aggravation against rather than

46
mitigation for Reed.” Id. at 436-37.

For several reasons, the Florida Supreme Court’s conclusion as to Nichols’s

performance was not based on an unreasonable determination of the facts, and was

neither contrary to, nor an unreasonable application of, clearly established federal

law. First, Nichols obtained considerable potential mitigation evidence.

Specifically, Nichols had and reviewed Reed’s medical records from Middle

Tennessee MHI, Hendersonville Hospital, and Metropolitan Nashville General

Hospital. Nichols, in fact, was the one who provided Dr. Miller with these records

to assist in the background investigation and evaluation that was done by Dr.

Miller and social worker Karen Kaldor, M.S.W. And, once Dr. Miller issued his

report on Reed well before trial, Nichols had that as well. Dr. Miller’s report and

the hospital records already contained the vast majority of mitigation-related

evidence along the lines later proffered at the Rule 3.850 hearing, such as: (1)

Reed’s mother shot and killed his father in self-defense; (2) Reed was removed

from his mother’s custody because of her alcoholism when he was four years old;

(3) Reed was raised primarily by his grandparents (who obtained custody); (4)

Reed had an eighth grade education, at which point he left school to work in a

sawmill because his family needed money; (5) Reed was a self-described “jack of

all trades” who had worked as a concrete worker and in the steel and oil industries;

47
(6) Reed had a child, a girlfriend, and many friends; (7) Reed suffered a fractured

bone in his face from being struck with a pool cue; (8) in 1979, Reed drank up to

two or three cases of beer a day, but “slacked off after a period of treatment for

this,” and by 1986 drank about a six-pack per week; (9) Reed began huffing

gasoline at about age nine and continued to do so regularly; (10) Reed reported

seizures associated with his gasoline huffing and, when high, exhibited bizarre and

combative behavior, such as screaming and attacking trees and a garage door; and

(11) Reed received medical treatment in 1981 for Valium dependence and for “lead

encephalopathy” due to chronic lead poisoning from inhalation of gas fumes.

Indeed, Nichols filed Dr. Miller’s report with the state trial court on the first day of

the guilt phase of trial.

Despite all this evidence the defense had, Reed faults Nichols for not finding

more. But again, except for Dr. Larson’s testimony, Reed’s 3.850 mitigation

testimony largely just recounted, in somewhat more detailed form, the factual

background that Nichols already obtained. While Dr. Larson’s opinions may have

differed from those of evaluators Dr. Miller and Kaldor, the facts remain that: (1)

Nichols had a thorough evaluation of Reed conducted; (2) Nichols gave Dr. Miller

a significant quantity of hospital and medical records; (3) Dr. Miller examined

those and had Reed undergo a battery of mental status and neurological tests,

48
including an electroencephalogram; (4) social worker Kaldor also participated in

the evaluation; (5) Dr. Miller’s report and the hospital records contained the

significant information about Reed’s childhood; and (6) Reed himself knew his

own personal background and all of the more detailed facts later presented.15 That

Dr. Larson may disagree with Dr. Miller’s evaluation does not make Nichols

ineffective. Further, “the mere fact a defendant can find, years after the fact, a

mental health expert who will testify favorably for him does not demonstrate that

trial counsel was ineffective for failing to produce that expert at trial.” Davis v.

Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997).

And, none of the evidence Nichols obtained would have convinced any

reasonably competent counsel of a need to do a more extensive investigation. In

this regard, Reed’s case is similar to Van Hook, 130 S. Ct. at 19, in which the

Supreme Court concluded that the defendant’s trial attorneys were not deficient for

not investigating more after discovering substantial mitigating evidence. In

15
It is important to note that the details about Reed’s childhood, drug abuse and gasoline
huffing were known to Reed himself, but Reed denied having substance abuse problems
anymore and can fault no one but himself for not providing Dr. Miller or Nichols more graphic
information about his childhood. See, e.g., McClain v. Hall, 552 F.3d 1245, 1251-52 (11th Cir.
2008), cert. denied, — U.S. —, 130 S. Ct. 197 (2009) (noting that whether defendant informed
his trial counsel about defendant’s abusive childhood is “extremely important” to determining
reasonableness of counsel’s performance); Peterka, 532 F.3d at 1208-09 (finding counsel’s
performance was not deficient in not presenting evidence that defendant Peterka declined an
opportunity to escape from prison because Peterka should have known this was the kind of
mitigation evidence his counsel would be interested in but Peterka failed to disclose it to
counsel).

49
reinstating Van Hook’s death sentence, the Supreme Court reasoned:

This is not a case in which the defendant’s attorneys failed to act
while potentially powerful mitigating evidence stared them in the
face, or would have been apparent from documents any reasonable
attorney would have obtained. It is instead a case, like Strickland
itself, in which defense counsel’s decision not to seek more mitigating
evidence from the defendant’s background than was already in hand
fell well within the range of professionally reasonable judgments.

Id. (quotation marks and citations omitted)). Further, in Reed’s case, Dr. Miller’s

conclusions – that Reed was of average intelligence; he had a fair general fund of

information; his cognitive faculties were intact; he was able to use verbal and

mathematical abstractions well; he had a good ability to register, store, and retrieve

data; he was not hallucinated or delusional; his motor, sensory, and cerebellar

functions were normal; he had no pathologic reflexes; his electroencephalograph

test was normal; he was competent to stand trial; and he was able to understand the

nature, quality, and wrongfulness of his actions at the time of Mrs. Oermann’s

murder – suggested a further investigation of mental health evidence would be

unlikely to bear fruit.16

16
The attorney performance-related facts of Reed’s case are wholly different from those
of Porter v. McCollum, 558 U.S. —, 130 S. Ct. 447, 452-53 (2009), where non-experienced
counsel had only “one short meeting” with the defendant Porter regarding the penalty phase,
never interviewed any witnesses, never requested any of Porter’s medical, school, or military
records, “ignored pertinent avenues for investigation of which he should have been aware,” and
“failed to uncover” any evidence of Porter’s mental health or mental impairment, his family
background, or his military service. Id. at 453. As discussed in footnote 21, infra, the crux of
counsel’s deficient performance in Porter was the failure to investigate and present Porter’s
compelling military history. Unlike Porter, there is no evidence of military service here.

50
 As the Florida Supreme Court concluded, Nichols’s decision not to present

mitigation evidence to the jury at the penalty phase was not objectively

unreasonable either. Reed instructed Nichols that Reed did not want any of his

family or friends to be subjected to the penalty-phase process and that he did not

want any mitigation testimony from them. Reed also instructed Nichols that he did

not want any mitigation evidence presented that implied he was guilty of Mrs.

Oermann’s murder. According to Nichols, this instruction extended to “testimony

about anything that had to do with [Reed’s] psychiatric or medical condition.”

Reed’s affidavit reveals that Nichols even advised Reed that his chances of

receiving a death sentence were less if he pled guilty and presented mitigating

psychological evidence, but Reed refused. The ultimate “decision whether to use

mitigating evidence is for the client.” Dobbs, 142 F.3d at 1388. And Reed was

undisputably competent to make that decision. Indeed, Reed never testified in the

Rule 3.850 proceedings and never said that if he had known about the 3.850

evidence, he would have changed his mind at trial and let his counsel present the

mitigation evidence to the jury at trial.

Nichols also did not “blindly follow” Reed’s instruction that he not present

mitigation evidence. See Newland, 527 F.3d at 1208-09; Mitchell v. Kemp, 762

F.2d 886, 889-90 (11th Cir. 1985). Indeed, here Nichols also made an independent

51
strategic decision not to present to the jury the mitigation evidence that was

unearthed. At the Rule 3.850 hearing, Nichols testified that he decided to submit

mitigation evidence to the state trial judge – but not to the jury. Nichols explained

that his strategic decision not to present the proposed mitigation evidence to the

jury stemmed from his belief that, given the brutal nature of this crime, the jurors

would not react well to the types of medical and psychiatric evidence about Reed

he had discovered, and that jurors would find such evidence in Reed’s case to be “a

shallow offer of mitigation” and would probably not give it serious consideration.

Nichols testified: “It was a strategy decision.”

And Nichols’s strategic decision was well informed by his extensive

experience as a trial lawyer. At the time of Reed’s trial, Nichols had served both as

a prosecutor and a criminal defense attorney, had thirteen years’ experience, and

had tried more than thirty homicide cases, most of which were capital cases. The

presumption that counsel’s performance is reasonable is “even stronger” when

counsel is particularly experienced. See Chandler v. United States, 218 F.3d 1305,

1316 & n.18 (11th Cir. 2000) (en banc) (noting that, although “[n]o one’s conduct

is above the reasonableness inquiry” and “even the very best lawyer could have a

bad day,” “[e]xperience is due some respect”).

Because Nichols believed that the jury would not find significant the types

52
of mitigation evidence in this case, he advised Reed against testifying and obtained

an agreement with the State that neither side would submit new evidence at the

penalty phase, but would proceed directly to their arguments. As part of this

agreement, Nichols stipulated on Reed’s behalf that he would not argue that the no-

significant-criminal-history statutory mitigating factor existed (which Nichols

thought he could probably not establish in any event), and in return the State would

not introduce before the jury any evidence of Reed’s prior convictions.

In short, Nichols decided not to present mitigating evidence at the penalty

phase, partly because of Reed’s instructions to him and partly based on his own

independent judgment that the jury would not react well to the types of mitigating

evidence about Reed. Nichols made the strategic decision to argue residual doubt

and to keep the jury from hearing new aggravating evidence from the State at the

penalty phase in return for not making a mitigation-evidence presentation that he

considered weak. See Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 787-88

(11th Cir. 2003) (noting that “[c]reating lingering or residual doubt over a

defendant’s guilt is not only a reasonable strategy, but ‘is perhaps the most

effective strategy to employ at sentencing’”); Stewart v. Dugger, 877 F.2d 851, 856

(11th Cir. 1989) (“Trial counsel made a strategic decision that in light of the

atrocious nature of the offense, [the defendant’s] only chance of avoiding the death

53
penalty was if some seed of doubt, even if insufficient to constitute reasonable

doubt, could be placed in the minds of the jury. . . . Trial counsel cannot be faulted

for attempting to make the best of a bad situation.”). Under the circumstances,

Reed has not “overcome the presumption that . . . the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065

(quotation marks omitted).17

For all of these reasons, we conclude that Reed has not satisfied his burden

of showing that the Florida Supreme Court’s determination that Nichols’s penalty-

phase performance was reasonable was contrary to, or involved an unreasonable

application of, clearly established federal law. Nor has Reed demonstrated that the

17
Reed contends Nichols did not present mitigation evidence to the jury because he could
not procure mitigation witnesses’ attendance for financial or logistical reasons. Reed cites this
statement by Nichols to the state trial judge:
I want to alert the Court . . . that we had passed the matter to today to try to get
witnesses here from out of state to testify in Mr. Reed’s behalf, primarily in the
fashion of character witnesses[,] and because of finances and logistics, none of those
people are available and I don’t have any reasonable likelihood that they’re going to
be available so I cannot and will not at this time ask the Court to delay this hearing
any further on that basis.
Reed ignores that Nichols made this statement at the December 18, 1986 sentencing hearing
before the state trial judge, which took place weeks after the penalty phase in front of the jury
was finished on November 26, 1986. This sentencing hearing was scheduled for December 10
and eventually held on December 18, 1986. In this context, it is clear that “the matter” that was
“passed . . . to today to try to get witnesses here” was the hearing before the judge, not the
penalty phase before the jury. Thus, the statement is consistent with Nichols’s strategy,
developed before the penalty phase, of presenting mitigation evidence to the judge instead of the
jury. And Nichols’s ultimate decision to rely on the submitted documentary evidence before the
state court is also consistent with the fact Nichols knew his audience was a judge instead of a
jury.

54
Florida Supreme Court’s decision was based on an unreasonable determination of

the facts in light of the state court record.

C. Reed’s Claim: Prejudice Prong

Alternatively, even assuming Nichols’s performance was deficient, Reed has

not shown the requisite prejudice. As the Florida Supreme Court found, “the

testimony that could have been presented was just as likely to have resulted in

aggravation against rather than mitigation for Reed.” Reed III, 875 So. 2d at 436-

37. The Florida Supreme Court determined that: (1) the proposed family

background testimony “involved numerous facts that placed Reed in a very

negative light,” including his long-term drug use, multiple terms in jail, breaking

his grandmother’s nose, and threatening to kill his brother’s wife; (2) the negative

evidence was “particularly disadvantageous in light of the facts of the crime,” as

Reed’s violent attack on his grandmother and his threatening of his brother’s wife

“established a pattern of violence against women who had taken [Reed] into their

homes”; and (3) several aspects of the mental health evidence, including the

antisocial personality disorder diagnosis, “might have been more helpful to the

State than the defense.” Id. at 437.

In Reed’s case, “the worst kind of bad evidence would have come in with

the good” mitigation. Wong v. Belmontes, 558 U.S. —, 130 S. Ct. 383, 390

55
(2009); see Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1251 (11th Cir.

2009) (finding prejudice prong not satisfied where proposed mitigation testimony

would have opened the door to damaging evidence); Gaskin v. Sec’y, Dep’t of

Corr., 494 F.3d 997, 1004 (11th Cir. 2007) (same); Robinson v. Moore, 300 F.3d

1320, 1350-51 (11th Cir. 2002) (same).18 In fact, brother William’s “mitigation”

testimony was a gold mine of aggravation for the State. William described Reed as

a “con man” who threatened his sister-in-law and attacked their grandmother who

raised them and saved them from their abusive stepfather. Specifically, William

testified that Reed: (1) punched his grandmother in the face and broke her nose

when she told him she wouldn’t let him come inside her house; and (2) threatened

to kill William’s wife after she found evidence that Reed was using drugs in her

and William’s home and William asked Reed to leave. Additionally, Dr. Larson’s

diagnosis of antisocial personality disorder was equally not “good” mitigation.

See, e.g., Cummings, 2009 WL 4452816, at *35 (stating that a diagnosis of

antisocial personality disorder “is not mitigating but damaging”) (collecting cases);

18
In Belmontes, the Supreme Court reinstated petitioner Belmontes’s death sentence
because it found that even if Belmontes’s trial counsel’s performance in investigating and
presenting mitigation evidence was deficient, Belmontes could not show prejudice. Belmontes,
130 S. Ct. at 384-86. Belmontes’s counsel “built his mitigation strategy around the overriding
need to exclude” evidence that Belmontes has committed an earlier execution-style murder. Id.
at 385. The Supreme Court concluded that not only was Belmontes’s proposed mitigation
evidence cumulative of much of the evidence his counsel had presented to the jury, but it would
have opened the door to the extremely damaging other-murder evidence that “would have made
a difference, but in the wrong direction for Belmontes.” Id. at 387-88.

56
see also Looney v. State, 941 So. 2d 1017, 1028-29 (Fla. 2006) (observing that

“[t]his Court has noted that a diagnosis as a psychopath is a mental health factor

viewed negatively by jurors and is not really considered mitigation”) (citing

Dufour v. State, 905 So. 2d 42, 57-58 (Fla. 2005)); Freeman v. State, 858 So. 2d

319, 327 (Fla. 2003).

Had trial counsel Nichols put on Reed’s family members or other witnesses

to testify about his family background, the State assuredly would have brought out

that Reed assaulted his own grandmother and threatened his brother’s wife. Had

this occurred, it would have been devastating for Reed’s chances at sentencing for

killing Mrs. Oermann, because as the Florida Supreme Court correctly noted, the

instances of Reed’s attacking his grandmother and threatening his sister-in-law

show a disturbing “pattern of violence against women who had taken [Reed] into

their homes.” Reed III, 875 So. 2d at 437. When persons who tried to help Reed

put limits on his conduct and forbade drug use in their homes, Reed responded

with violence. And even without the jury hearing this specific testimony, it would

have been all too easy for the State to use Reed’s own mitigation witnesses to paint

him as a violent, manipulative person with long-standing drug abuse issues and

brushes with the law. The probability of proposed mitigating evidence opening the

door to strong aggravating evidence is an important factor to consider in assessing

57
the reasonable probability of a different sentencing result. Belmontes, 130 S. Ct. at

389-90; see Windom, 578 F.3d at 1251; Gaskin, 494 F.3d at 1004; Robinson, 300

F.3d at 1350-51.19 Here, it was not just a reasonable probability, but a virtual

certainty that Reed’s “good” mitigation evidence would have led to the

introduction of “bad” evidence. Belmontes, 130 S. Ct. at 390.

In short, Reed has not shown that there is a reasonable probability that he

would have received a sentence less than death had the proposed 3.850 evidence

been presented. See Porter v. McCollum, 558 U.S. —, 130 S. Ct. 447, 453 (2009)

(stating that, to establish prejudice, petitioner “must show that but for his counsel’s

deficiency, there is a reasonable probability he would have received a different

sentence”). The Florida Supreme Court considered all the evidence – both

adduced at trial and in postconviction proceedings – in mitigation and aggravation

of sentence. See Porter, 130 S. Ct. at 453-54 (“To assess that probability [of a

different sentence], we consider the totality of the available mitigation evidence –

19
In addition, Reed instructed Nichols that he did not want his family or friends to testify
at the penalty phase, and that he did not want Nichols to present any mitigation evidence that
implied he was guilty of Mrs. Oermann’s murder, including any “testimony that had anything to
do with his psychiatric or medical condition.” Reed chose not to testify himself. These
instructions completely overlap with the areas of proposed mitigation evidence offered at the
Rule 3.850 hearing. Reed has not demonstrated that he would have permitted his counsel to
introduce the proposed mitigation evidence even if counsel had been ready, willing, and able to
present it, and, consequently, Reed has not shown his counsel’s conduct prejudiced him. See
Landrigan, 550 U.S. at 475, 127 S. Ct. at 1940-41; Cummings, 2009 WL 4452816, at *26.

58
both that adduced at trial, and the evidence adduced in the habeas proceeding – and

reweigh it against the evidence in aggravation.” (quotation marks and brackets

omitted)). This includes aggravating evidence to which the proposed mitigating

evidence would open the door. See Belmontes, 130 S. Ct. at 387 (“In evaluating

[the prejudice] question, it is necessary to consider all the relevant evidence that

the jury would have had before it if [counsel] Schick had pursued the different path

– not just the mitigation evidence Schick could have presented, but also the

[aggravating] Howard murder evidence that almost certainly would have come in

with it.”).

And the crime evidence itself in aggravation was substantial. Reed raped,

strangled, and repeatedly stabbed a 57 year old woman who had helped him and

his family when they were homeless and in need. The four statutory aggravating

factors were: (1) Reed murdered Mrs. Oermann while committing sexual battery;

(2) Reed murdered Mrs. Oermann for pecuniary gain; (3) Reed murdered Mrs.

Oermann to avoid or prevent arrest; and (4) Reed’s murder of Mrs. Oermann was

especially heinous, atrocious, or cruel. In considering the weight of the

aggravating factors, see Van Hook, 130 S. Ct. at 20, this last circumstance looms

large. The evidence showed Reed slapped Mrs. Oermann, tied her up and beat her

severely, then choked her and raped her. Reed then killed her by repeatedly

59
slashing her throat more than a dozen times. All told, the brutal circumstances of

the crime alone provided powerful aggravating evidence. And the “bad” evidence

that would follow the “good” mitigation evidence would have piled on top of the

crime-related aggravation.

By contrast, the proposed mitigation evidence was weak, and most of it was

alloyed with negative information. Even the portions that were “good” mitigation

evidence – Reed’s horrific childhood clearly qualifies – would have opened the

door to damaging testimony. For example, Reed’s brother William testified that

their father was abusive and was killed by their mother in self-defense, but Reed

was an infant when his father died and William never had the problems Reed did.

Both brother William and sister Diana testified that Reed and Diana suffered

physical and mental abuse at the hands of their stepfather Charles Lassman, but

Reed only lived with Lassman for about eight months, and Reed spent the rest of

his childhood in the care and custody of his loving grandparents. William and

Diana testified that Reed and his three siblings (William, Diana, and Tony) were

affected by the same childhood abuse and neglect he suffered, but acknowledged

that Reed was the only one of the siblings who had ever been arrested for a violent

crime. Reed’s middle-school teacher Ronnie Yates testified that Reed struggled in

school, but that his struggles stemmed from a failure to apply himself.

60
 Reed argues his history of drug abuse and huffing gasoline was mitigating,

but no one testified that Reed was under the influence of drugs or had been huffing

gasoline when he killed Mrs. Oermann. In fact, Reed denied to the parole officer

using any drugs or narcotics.20 We recognize that: (1) William testified that Reed

began huffing gasoline when he was about ten and continued for years; (2) Yates

testified that when Reed was in the seventh and eighth grades, he repeatedly

showed up to school and school functions while drunk; and (3) Reed’s former

girlfriend Christine Niznik testified that Reed abused drugs – including alcohol,

gasoline, and a homemade methamphetamine-based drug called “stove top” –

throughout their relationship. However, “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.”).

Similarly, Dr. Larson’s diagnosis – that Reed had an antisocial personality

20
The only testimony remotely linking Reed’s drug abuse to Mrs. Oermann’s murder was
Niznik’s testimony that Reed was “possibly” using stove top “around the time of the murder.”
However, Reed denied committing the murder, and as noted, denied to the parole officer who
prepared the PSI that he used any drugs.

61
disorder and narcissistic personality disorder – was more harmful to Reed than

mitigating. See 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 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”). Dr. Larson himself admitted that it is an

unflattering diagnosis. Indeed, as part of his diagnosis, Dr. Larson characterized

Reed as selfish, self-indulgent, hedonistic, and exploitative. This characterization

was confirmed by Reed’s brother William, who testified that Reed was

manipulative and “like a con artist.”

We recognize Dr. Larson also opined that in addition to drug abuse and

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personality disorders, there was “possible interaction of organic brain syndrome

and alcohol and drugs during the time frame of the events.” (Emphasis added).

The problem for Reed is Dr. Larson is a clinical psychologist who never addressed:

(1) the electroencephalogram test, which Dr. Miller, a medical doctor, ordered and

which showed Reed’s brain was functioning within normal limits in 1986; (2) that

Reed denied having a drinking (or substance abuse) problem anymore when he was

examined by Dr. Miller and social worker Kaldor in October 1986; (3) that there

was no evidence at trial that Reed was under the influence of drugs or gasoline

huffing at the time of the murder; (4) that none of the Rule 3.850 testimony

concerned Reed’s mental state on the day of the murder; (5) that no neurological or

other medical test revealed organic brain syndrome around the time of the murder;

(6) that Reed’s verbal, performance, and full-scale IQ scores were 83, 79, and 79

respectively; and (7) that Dr. Larson testified to only a possibility that was not

supported by any doctor or medical evidence around the time of the murder. And

although Dr. Larson summarily opined (six years after the crime) that it appeared

that Reed was under the influence of extreme emotional disturbance and lacked the

capacity to appreciate the criminality of his conduct or to conform his conduct to

the requirements of the law, Dr. Larson did not explain why he believed these

factors appeared to have been met. Regardless, even crediting Dr. Larson’s largely

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unsupported and speculative 3.850 testimony as to the existence of statutory

mitigating factors, the fact remains that had Dr. Larson taken the stand to give his

opinions, the State would have used him to reveal to the jury that Reed had an

antisocial personality, was selfish, was unconcerned with the rights of others, and

was prone to repeated violence against women who tried to help him. The net

result of Dr. Larson testifying would not have been so mitigating as to raise a

reasonable probability that Reed would have received a different sentence. As the

Rule 3.850 court stated, “It is certainly not ineffective assistance of counsel for an

attorney not to call an expert when doing so causes his client to run the risk of

having the state successfully make his client look like a sociopathic killer.”

In sum, we conclude that the Florida Supreme Court’s denial of Reed’s

3.850 ineffective assistance claims as to mitigation evidence was not contrary to or

an unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the state court record.21

21
This case is wholly different from Porter, where the Supreme Court found the defendant
was prejudiced by his trial counsel’s failure to present the uniquely strong mitigating nature of
military service in combat situations. Porter, 130 S. Ct. at 454-56. Porter’s counsel failed to
present powerful mitigating evidence that: (1) Porter was “a veteran who was both wounded and
decorated for his active participation in two major engagements during the Korean War”; (2)
“his combat service unfortunately left him a traumatized, changed man”; and (3) he “struggle[d]
to regain normality upon his return from war.” Id. at 448, 454. Paragraph after paragraph in the
Porter opinion concerns Porter’s combat experience in Korea, recounted in great detail. Id. at
449-51, 455. The diagnosis in Porter was post-traumatic stress disorder from combat, not
antisocial personality disorder. Id. at 450 n.4, 455 & n.9. Porter’s military service was critical to
the holding in Porter. Moreover, in Porter there was no finding, as here, that the proposed

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Thus, he cannot satisfy Strickland’s prejudice prong.

IV. CONCLUSION

For all of the reasons set forth above, we affirm the district court’s denial of

Reed’s § 2254 petition.

AFFIRMED.

mitigating evidence would have opened the door to damaging evidence that could be used by the
State. Id. at 454-55.

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