Morris v. Secretary, Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
________________________ APPEALS
ELEVENTH CIRCUIT
APRIL 20, 2012
No. 09-15471 JOHN LEY
________________________

D. C. Docket No. 06-01289-CV-JDW-AEP

ROBERT MORRIS,

Petitioner-Appellant,

versus

SECRETARY DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________

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

(April 20, 2012)

Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Robert Morris was convicted in 1999 of first-degree murder, burglary of a

dwelling, and robbery with a deadly weapon after the brutal killing of an 88-year-
old woman in her Lakeland, Florida apartment. He was sentenced to death. After

direct appeal and postconviction proceedings in state court, Morris filed his federal

habeas petition, raising fourteen claims of trial court error and ineffective

assistance of counsel. The district court denied the petition on all claims.

We have before us on appeal four of these claims: (1) the alleged ineffective

assistance of counsel in excluding Morris from an unrecorded bench conference

during the penalty phase of his trial; (2) the alleged ineffective assistance of

counsel for failing to advise Morris of his right to testify at the penalty phase or to

call Morris to testify at the penalty phase; (3) an alleged trial court error in

concluding that Morris’s past drug use was “not mitigating”; and (4) cumulative

error. After thorough review, we too conclude that Morris is not entitled to relief

on any of these claims. Accordingly, we affirm the judgment of the district court

and deny the petition.

I.

A.

The victim of this brutal murder, Violet Livingston, was 88 years old. Her

body was found in her apartment by her son on the morning of September 2, 1994.

When the police arrived, they found Livingston’s body lying on the bedroom floor,

with her head wrapped in bed sheets. The police found blood on the walls, some

2
furniture, and the victim’s walking cane.

The medical examiner who performed the autopsy, Dr. Alexander Melamud,

testified at trial that the victim died as a result of multiple injuries. In particular,

Dr. Melamud testified that the victim suffered “multiple bruises, lacerations,

abrasions, rib fractures, subarachnoid hemorrhage of the brain and mechanical

asphyxia due to suffocation.” Dr. Melamud could not determine the order in which

the injuries were inflicted, but opined that the victim was alive for a short period

after the attack began.

The State presented four main categories of evidence against Morris. First,

the State’s DNA experts testified that Morris could not be excluded as the source

of DNA obtained from two locations on the victim’s body and from the victim’s

kitchen curtain. One of the State’s experts testified that the frequency of the tested

DNA pattern in the African-American database would be 1 in 7.1 million. The

expert testified that this number meant that the likelihood of obtaining the DNA

profile from an African-American other than Morris was between 1 out of 710,000

and 1 out of 71 million. Second, the police obtained eleven fingerprints of value

from the crime scene, and one of them, from a lightbulb outside of the victim’s

apartment, was matched to Morris. Third, the police found in and around Morris’s

residence items known to have belonged to the victim, including coin wrappers,

3
coin collection booklets, a coin sorter, and a small television. Finally, the State

presented the testimony of Damion Sastre, who recounted a jailhouse confession to

the murder by Morris. Sastre testified that Morris had told him about entering the

victim’s apartment, murdering the victim, and taking from the victim’s apartment a

small television, jewelry, old coins, and whatever money was around.

At the conclusion of the guilt phase, the jury convicted Morris of first-degree

murder, armed burglary of a dwelling or battery committed during burglary of a

dwelling, and robbery with a deadly weapon.

B.

Morris’s claims on appeal all relate to the penalty phase of his trial. The

penalty phase was conducted before the jury on March 8-11, 1999. At the penalty

phase, the State recalled Dr. Melamud, who testified that the victim sustained at

least thirty-one bruises, abrasions, and lacerations, including defensive wounds.

He further opined that the injuries would have caused pain while the victim was

conscious. The State also called as victim impact witnesses the victim’s two sons

and two of her grandchildren.

Morris presented eleven lay witnesses at the penalty phase. He called

several family members and family friends to testify to the unfortunate

circumstances of his childhood, including poverty, neglect, physical and emotional

4
abuse, and his mother’s past substance abuse. The witnesses also testified about

Morris’s limited education, past drug use and addiction, and the positive role he

has played in his family’s life as an adult. Morris also called a clinical

psychologist, Dr. Dee, who gave expert mental health testimony that Morris had a

borderline to dull-normal IQ, that Morris developed an ulcer as a youth due to

stress, and that Morris had abused drugs since childhood and was negatively

affected by his troubled childhood. Although Morris testified at the guilt phase, he

did not testify during the penalty phase.

At the conclusion of the penalty phase, the jury recommended death by a

vote of 8 to 4. On April 30, 1999, the trial court sentenced Morris to death. The

court found four aggravating factors, one statutory mitigating factor and numerous

nonstatutory mitigating factors. The four aggravators were: (1) the crime was

committed while Morris was on parole from a previous felony (robbery), Fla. Stat.

§ 921.141(5)(a), which the trial court accorded moderate weight; (2) Morris was

previously convicted of a felony involving the use or threat of violence (robbery),

id. § 921.141(5)(b), which the court accorded moderate weight; (3) the crime was

committed for pecuniary gain, id. § 921.141(5)(f), which the court gave great

weight; and (4) the crime was especially heinous, atrocious, or cruel, id. §

921.141(5)(h), which the court gave great weight.

5
 The trial court also found the statutory mitigator that Morris had a

substantially impaired capacity to conform his conduct to the requirements of law,

id. § 921.141(6)(f), and gave this mitigator moderate weight. The court considered

the following nonstatutory mitigators together: (1) Morris was born to a teenaged,

unmarried mother; (2) Morris was physically and emotionally abused as a child;

(3) Morris suffered neglect and physical deprivation as a child; (4) Morris’s mother

was a drug and alcohol abuser when Morris was a child; (5) Morris grew up in

extreme poverty; (6) Morris witnessed the physical and sexual abuse of his mother

and sisters; (7) Morris’s father was absent for most of Morris’s life; and (8)

Morris’s mother was arrested and had a criminal record while he was growing up.

The court gave these mitigators great weight collectively.

The trial court also considered additional nonstatutory mitigators that it

weighed individually. It considered the following characteristics regarding Morris:

(1) borderline IQ (given little weight); (2) learning disabilities as a child (given

little weight); (3) developed ulcers at a young age, reflecting extreme stress (given

little weight); (4) use of alcohol and drugs at a young age and lifelong addiction

problems (given little weight); (5) obtained high school diploma despite obstacles

(given slight weight); (6) had loving protective relationships with family, including

his daughter (given some weight); (7) adapts well to prison life (given little

6
weight); (8) can continue to support, encourage, and nurture his family while

incarcerated (given some weight); (9) a life sentence is sufficient (little weight);

and (10) courtroom demeanor was superb (given some weight).

Of particular relevance to this appeal is finding (4) in the individual

nonstatutory mitigators. The extent of the trial court’s discussion of Morris’s past

drug use in its sentencing order is found in a section labeled “The defendant began

using alcohol and drugs at an early age, and developed a lifelong addiction

problem,” and reads as follows:

Established and uncontroverted. That the defendant used drugs in the
past is not mitigating. Moreover there is no evidence that he was
using drugs in September, 1994 when he murdered Mrs. Livingston.
This factor is entitled to little weight.

On February 21, 2002, the Florida Supreme Court affirmed Morris’s

conviction and sentence. Morris v. State, 811 So. 2d 661 (Fla. 2002) (“Morris I”).

Morris raised five issues, one of which is his present claim that the trial court erred

by not considering his past drug use as mitigating evidence. The Florida Supreme

Court rejected this claim. Quoting the entirety of the trial court’s discussion in the

sentencing order, the Florida Supreme Court first noted that the trial court had

found established and uncontroverted the fact that Morris had a lifelong addiction

to drugs and alcohol. The Florida Supreme Court agreed with Morris that past

7
drug use and addiction are valid nonstatutory mitigators, and that the defendant

need not be under the influence of drugs or alcohol at the time of the murder for

this mitigating evidence to be weighed. Id. at 667 (citing Mahn v. State, 714 So.

2d 391, 401 (Fla. 1998)).

But the Florida Supreme Court then found that “[a]lthough the trial court’s

order on this point is confusing, it appears that the trial court did find and weigh

the prior history of drug abuse and addiction.” Id. (emphasis added). The Florida

Supreme Court went on to further conclude that, “considering all of the other

aggravation and mitigation in the case that the trial court evaluated, . . . any

inaccuracy in the trial court’s statements is harmless beyond a reasonable doubt.”

Id.

C.

After his direct appeal, Morris pursued postconviction relief under Fla. R.

Crim. P. 3.851. He filed his Second Amended 3.851 Motion on December 22,

2003. He raised eleven claims, including the two ineffective assistance of counsel

claims and the cumulative error claim at issue in this appeal. Morris received both

a Huff1 hearing and an evidentiary hearing. After these hearings, the trial court

1
See Huff v. State, 622 So. 2d 982, 983 (Fla. 1993) (holding that, because of the severity
of punishment at issue in a death penalty postconviction case, the judge must allow the attorneys
the opportunity to appear before the court and be heard on an initial postconviction motion).

8
denied postconviction relief. Morris then filed a state habeas petition. The Florida

Supreme Court affirmed the denial of postconviction relief and rejected the state

habeas claims in a unanimous opinion issued on April 20, 2006. Morris v. State,

931 So. 2d 821 (Fla. 2006) (“Morris II”).

In addressing Morris’s ineffective assistance of counsel claims, the Florida

Supreme Court did not decide whether Morris had established deficient

performance, instead concluding that Morris had failed to establish prejudice.

Morris II, 931 So. 2d at 832, 834. As for Morris’s absence from a bench

conference during the penalty phase, the Florida Supreme Court first noted that it

has repeatedly denied ineffective assistance claims regarding a defendant’s absence

from a bench conference “when the defendant has failed to show that anything was

discussed at the conference that required the defendant’s consultation.” Id. at 832

(citing Orme v. State, 896 So. 2d 725, 738 (Fla. 2005); Vining v. State, 827 So. 2d

201, 218 (Fla. 2002); Hardwick v. Dugger, 648 So. 2d 100, 105 (Fla. 1994)). The

Florida Supreme Court expressly tied this observation to the prejudice prong of the

ineffective assistance of counsel test laid out in Strickland v. Washington, 466 U.S.

668 (1984), concluding:

[E]ven if trial counsel was deficient in holding a bench conference
with the trial judge outside of Morris’s presence and without a waiver
by him, Morris has not established that anything was discussed during
this conference that required his consultation. Nor has he established
9
 that the conference involved anything but purely legal matters to
which his constitutional right to be present does not extend. Thus, we
conclude that Morris has failed to demonstrate under Strickland that
he was prejudiced by counsel’s conduct.

Morris II, 931 So. 2d at 832.

As for Morris’s claim that trial counsel was ineffective for failing to advise

him of his constitutional right to testify at the penalty phase, the Florida Supreme

Court first noted that defense counsel does have an obligation to inform the

defendant of his right to testify. The Florida Supreme Court summed up the

relevant testimony from Morris’s postconviction evidentiary hearing this way:

During the evidentiary hearing on this claim, trial counsel [Howard]
Dimmig and Howardene Garrett testified that they had pretrial
discussions with Morris concerning whether he would testify at trial.
Dimmig testified that during these discussions he advised Morris of
his right to testify but that he was unsure whether Morris understood
that this meant he had a right to testify at both the guilt and penalty
phases. Garrett was unable to recall whether she discussed with
Morris his right to testify at the penalty phase of his trial. Morris
testified at the evidentiary hearing that although he recalled Garrett
asking him whether he wanted to testify during the guilt phase, neither
Garrett nor Dimmig advised him of his right to testify in both phases
of his trial.

Morris II, 931 So. 2d at 834.

The Florida Supreme Court did not parse this testimony to determine

whether trial counsel’s performance was deficient, instead again denying relief

10
under the prejudice prong of Strickland. Id. (“We need not determine whether

there was deficient performance because we conclude that any failure to advise

Morris that he had the right to testify during the penalty phase does not undermine

our confidence in the death sentence and thus did not prejudice Morris.”). The

court noted that at the evidentiary hearing Morris did not dispute the testimony of

the twelve witnesses who had testified on his behalf at the penalty phase, nor did

he “offer any other evidence beyond that presented during the penalty phase.” Id.

Morris also testified at the evidentiary hearing that he would have reasserted his

innocence claims during the penalty phase. The Florida Supreme Court stated that

“[i]t is questionable whether the jury would have found Morris’s testimony

credible, especially as to his protestations of innocence.” Id. It then concluded

that, “[b]ased on Morris’s diminished credibility and the fact that his testimony

would have been cumulative to the extensive mitigation evidence presented at the

penalty phase, . . . any failure by trial counsel to inform Morris of his right to

testify in the penalty phase does not undermine this Court’s confidence in the

outcome of the trial.” Id.

Having concluded that Morris had failed to establish that any of his claims

had merit, the Florida Supreme Court determined that Morris’s claim of cumulative

error failed as well, and that Morris was not deprived of a fundamentally fair trial.

11
Id. at 837.

D.

Morris filed his federal habeas petition on July 12, 2006, in the United States

District Court for the Middle District of Florida. His petition raised fourteen

claims. After considering the state’s response and Morris’s reply, the district court

entered an order and separate judgment on September 30, 2009, denying the

petition as to each of the fourteen claims. Morris v. Sec’y, Dep’t of Corr., 2009

WL 3170497 (M.D. Fla., Sept. 30, 2009).

As for Morris’s ineffective assistance of counsel claim related to his absence

from the unrecorded bench conference, the district court held that Morris had not

met his burden of establishing that the Florida Supreme Court’s prejudice

determination was contrary to or an unreasonable application of Strickland. 2009

WL 3170497, at *11-12. The district court noted that Morris bore the burden of

showing that his counsel was ineffective, and that his speculation about what might

have been discussed during the bench conference was not sufficient to meet this

burden. Id. at *12.

As for Morris’s ineffective assistance claim concerning the failure of his trial

counsel to advise him of his right to testify at the penalty phase, the district court

agreed with the Florida Supreme Court’s determination that Morris had failed to

12
establish prejudice under Strickland, and therefore Morris had not shown an

entitlement to habeas relief under AEDPA. Id. at *15. After summarizing

Morris’s proposed testimony and the extensive mitigating testimony that actually

was presented at the penalty phase, the district court concluded that “Morris’

proposed testimony, in light of both parties’ evidence, does not demonstrate a

reasonable probability that his sentence would have been different had he testified

during the penalty phase of the trial.” Id. at *16. The district court expressly

“agree[d] with the Florida Supreme Court’s determination that Morris’ proposed

testimony would have essentially been nothing more than cumulative to the other

witnesses’ testimony.” Id. “Moreover,” the district court added, “to the extent

Morris would have reasserted his innocence of the crimes, the jury clearly did not

believe Morris because they had already found him guilty beyond a reasonable

doubt.” Id.

As for Morris’s claim that the trial court erred by not considering his past

drug use at sentencing, the district court “agree[d] with the Florida Supreme

Court’s conclusion that the trial judge did find and weigh the prior history of drug

abuse and addiction.” Id. at *28 (quotation omitted). The district court went on to

note:

Furthermore, even though the trial court stated “[t]hat the defendant
used drugs in the past is not mitigating” (Id. [DE 23, Ex. A-36 at 96]),

13
 the trial court nonetheless weighed the mitigating factor because it
expressly found that “[t]his factor is entitled to little weight.” (Id.)
(emphasis added). Despite Morris’ contentions, the state trial court
did not reject Morris’ history of drug and alcohol abuse as a
mitigating factor. Rather, the court considered his history of drug and
alcohol abuse and found that it was entitled to “little weight” because
Morris was not under the influence of drugs at the time of the murder.

Id. at *28. Accordingly, the district court concluded that Morris “ha[d] not

demonstrated that the Florida Supreme Court’s decision was contrary to, or an

unreasonable application of, clearly established federal law or an unreasonable

determination of the facts.” Id. at *29. The district court further concluded that

Morris had failed to establish that any error on the trial court’s part resulted in

“actual prejudice.” Id. at *29-30 (quoting Brecht v. Abrahamson, 507 U.S. 619,

637 (1993)). Finally, the district court summarily disposed of the cumulative error

claim. Id. at *39 (“As all of Morris’ individual claims are without merit, his

cumulative error claim must fail.”).

On November 23, 2009, the district court granted in part Morris’s

application for a Certificate of Appealability (“COA”), limited to Morris’s claims

that trial counsel was ineffective for failing to call Morris to testify in the penalty

phase, and that the trial court erred in finding that Morris’s past drug use was not

mitigating. On August 25, 2010, this Court granted in part Morris’s motion to

expand the COA, adding the claim that trial counsel was ineffective for

14
participating in an unrecorded bench conference without obtaining a waiver of

Morris’s presence and the claim of cumulative error.

II.

Because Morris filed his federal habeas petition after the 1996 effective date

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §

2254, AEDPA governs the petition and the scope of our review. Penry v. Johnson,

532 U.S. 782, 792 (2001); Grossman v. McDonough, 466 F.3d 1325, 1335 (11th

Cir. 2006). Under AEDPA, when the state court has adjudicated the petitioner’s

claim on the merits, a federal court may not grant habeas relief unless the state

court’s decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding,” id. §

2254(d)(2). A state court’s factual findings are presumed correct unless rebutted

by clear and convincing evidence. Id. § 2254(e); Ferrell v. Hall, 640 F.3d 1199,

1223 (11th Cir. 2011).

AEDPA “imposes a highly deferential standard for evaluating state-court

rulings” and “demands that state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks omitted).

15
“A state court’s determination that a claim lacks merit precludes federal habeas

relief so long as fairminded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal

quotation marks omitted). The Supreme Court has repeatedly instructed lower

federal courts that an unreasonable application of law requires more than mere

error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18 (2003);

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The gloss of clear error fails to give

proper deference to state courts by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n

unreasonable application of federal law is different from an incorrect or erroneous

application of federal law.”).

Finally, we review de novo the district court’s resolution of questions of law

or mixed questions of law and fact. See Spencer v. Sec’y, Dep’t of Corr., 609 F.3d

1170, 1177 (11th Cir. 2010); Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229,

1232 (11th Cir. 2008). We review factual findings made by the district court for

clear error. Spencer, 609 F.3d at 1177.

A.

Morris first claims that his trial counsel was ineffective in excluding him

from a bench conference without a waiver. To succeed on an ineffective assistance

16
claim, Morris must show both deficient performance and prejudice: he must

establish both that “counsel’s representation fell below an objective standard of

reasonableness,” and 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 688, 694; accord Wiggins v. Smith, 539 U.S. 510, 521-22

(2003); Darden v. Wainwright, 477 U.S. 168, 184 (1986). The Supreme Court also

made clear in Strickland that a court need not address both prongs if the petitioner

has made an insufficient showing on one of them, and that “a court need not

determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.”

Strickland, 466 U.S. at 697; accord Holladay v. Haley, 209 F.3d 1243, 1248 (11th

Cir. 2000) (“[T]he court need not address the performance prong if the defendant

cannot meet the prejudice prong, or vice versa.” (citation omitted)).

Furthermore, as a federal habeas court we are not applying Strickland de

novo, but rather through the additional prism of AEDPA deference.2 28 U.S.C. §

2254(d)(1). Thus, under this doubly deferential standard, “[t]he pivotal question is

whether the state court’s application of the Strickland standard was unreasonable.”

2
This is true as to the prejudice prong of Strickland, which the Florida Supreme Court
unquestionably adjudicated on the merits for both of Morris’s ineffective assistance of counsel
claims. Morris II, 931 So. 2d at 832, 834.

17
Harrington, 131 S. Ct. at 785 (“A state court must be granted a deference and

latitude that are not in operation when the case involves review under the

Strickland standard itself.”). And if, at a minimum, fairminded jurists could

disagree about the correctness of the state court’s decision, the state court’s

application of Strickland was not unreasonable and AEDPA precludes the grant of

habeas relief. Id. at 786.

The Supreme Court has made clear that “a defendant is guaranteed the right

to be present at any stage of the criminal proceeding that is critical to its outcome if

his presence would contribute to the fairness of the procedure.” Kentucky v.

Stincer, 482 U.S. 730, 745 (1987); see Illinois v. Allen, 397 U.S. 337, 338 (1970).

In Stincer, the Court noted that “due process clearly requires that a defendant be

allowed to be present ‘to the extent that a fair and just hearing would be thwarted

by his absence.’” 482 U.S. at 745 (quoting Snyder v. Massachusetts, 291 U.S. 97,

108 (1934)).

The Florida Supreme Court did not address whether counsel’s performance

was deficient, instead determining that Morris had failed to meet his burden of

establishing prejudice under Strickland. Morris II, 931 So. 2d at 832. We take the

same approach, and hold that under the circumstances presented here, the Florida

Supreme Court’s determination that Morris failed to establish prejudice under

18
Strickland was not unreasonable. Morris has failed to establish that there is a

reasonable probability that, but for his trial counsel excluding him from the bench

conference, the result of the proceedings would have been different, let alone that

the Florida Supreme Court’s determination on this point was an unreasonable

application of clearly established Supreme Court law. Strickland, 466 U.S. at 694.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

The bench conference at issue took place during the penalty phase of the

trial. Morris’s trial counsel, Mr. Dimmig and Ms. Garrett, were present, as was the

prosecutor Mr. Harb. The conference took place at the very beginning of the day,

before the jury had entered the courtroom. Defense counsel brought to the trial

court’s attention that one of the sets of Morris’s fingerprints that had been

published to the jury the day before was taken from an unrelated arrest and had a

note on the back indicating that the arrest was for the felonious possession of a

controlled substance. The court agreed that the set of fingerprints that made

reference to the prior arrest should be removed, and discussed with the lawyers

how the State’s exhibits would be marked. At that point, the following colloquy

took place just before and after the unrecorded bench conference:

THE COURT: Anything else?
MR. DIMMIG: Yes, Your Honor. At this time based on --

19
 MR. HARB: We need your client here.
MR. DIMMIG: Yeah. We would need him in here.
MS. GARRETT: I had one other thing before we go on to that I had
one other thing I wanted to bring up that I prefer to
bring up outside my client’s presence. It doesn’t
even have to be on the record.
(Discussion off the record.)
(The defendant entered the courtroom.)
MR. DIMMIG: Your Honor, at this time the defense would make a
Motion for Mistrial based upon the erroneous
publication to this jury of what has now been
marked as State’s Exhibit A-1. That is a
fingerprint card which reflects that Mr. Morris was
booked into a Missouri jail on the charges of
felonious possession of illegal narcotics and what
appears to be a burglary, though it is abbreviated in
some fashion.

At Morris’s state postconviction evidentiary hearing, Ms. Garrett testified

that she had no independent recollection of the bench conference, or of the

substance of what was discussed at the bench conference. She further testified that

she did not believe that she would have excluded Morris from a bench conference

at which he needed to be present, and the fact that there was no reconstruction of

the bench conference on the record led her to believe that the matter was not a

consequential one.

The Florida Supreme Court implicitly credited Ms. Garrett’s testimony,

especially in the absence of any contrary showing by Morris. It found that “Morris

20
has not established that anything was discussed during this conference that

required his consultation. Nor has he established that the conference involved

anything but purely legal matters to which his constitutional right to be present

does not extend.” Morris II, 931 So. 2d at 832. Accordingly, the Florida Supreme

Court held that Morris’s absence from the bench conference did not undermine its

confidence in the outcome of the penalty phase proceedings, and therefore Morris

failed to demonstrate prejudice under Strickland.

Nevertheless, Morris, relying on Arizona v. Fulminante, 499 U.S. 279, 309-

10 (1991), claims that the Florida Supreme Court “could not know whether the

discussions at the bench were or were not related to legal matters pertaining to Mr.

Morris’s trial,” and that his absence was a structural error that “affected the

framework within which the trial proceeded.” But in Fulminante, the Supreme

Court was discussing a very limited category of constitutional errors -- such as “the

total deprivation of the right to counsel at trial” or “a judge who was not impartial”

-- that are “structural defects in the constitution of the trial mechanism, which defy

analysis by ‘harmless error’ standards.” Id. The absence of a defendant from a

single bench conference is not the type of fundamental error that infects “[t]he

entire conduct of the trial from beginning to end.” Id. at 309. Still another

problem with Morris’s claim, with respect to establishing prejudice under

21
Strickland, is that it simply assumes that something of critical import was

discussed at the bench conference without ever advancing any theory of what it

might have been or why that was the case. Without Morris even attempting to

articulate what might have been discussed at the bench conference, we cannot

conclude that he has met his burden of establishing a reasonable probability that

but for trial counsel’s purported error in excluding him from the conference, the

result of the penalty phase proceedings would have been different, let alone that the

Florida Supreme Court’s determination was an unreasonable one.

Moreover, the colloquy on the record and the surrounding context suggest

that trial counsel were well aware of Morris’s right to be present. Defense counsel

were about to move for a mistrial based on the erroneous publication of a

fingerprint card, but stopped when they realized -- after the prosecutor chimed in --

that Morris needed to be there. Trial counsel Garrett then brought up a seemingly

unrelated matter with the trial court, and the bench conference was conducted off

the record, without any objection from the prosecutor. Once they went back on the

record and the defendant entered the courtroom, the defense then moved for the

mistrial based on what the parties had been discussing prior to the bench

conference. Nothing about this course of events even remotely suggests that

Morris’s absence from the bench conference had any effect on the outcome of the

22
penalty phase.

We acknowledge that Morris faces a significant burden in demonstrating

prejudice under these circumstances. He was not present at the bench conference,

the conference was off the record, and his trial counsel Garrett testified during

postconviction proceedings that she could not remember what was discussed. In

that situation, it is a tall order indeed for Morris to demonstrate that his absence

from the conference resulted in prejudice under Strickland. Nonetheless, the law is

clear that Morris bears this burden. See Strickland, 466 U.S. at 687 (“[T]he

defendant must show that the deficient performance prejudiced the defense.”);

Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears

the burden of proof on the ‘performance’ prong as well as the ‘prejudice’ prong of

a Strickland claim, and both prongs must be proved to prevail.”).

In short, Morris has failed to establish that the Florida Supreme Court’s

decision on this claim was either contrary to or an unreasonable application of

Strickland, and we accordingly deny relief. In so holding, we emphasize that we

do not condone the conduct of the state trial court, especially in light of the grave

stakes inherent in capital litigation. When a trial court conducts any proceedings

off the record, it unnecessarily renders much more difficult a reviewing court’s

task of ensuring that the defendant received a fair trial. But difficult is not

23
impossible, and Morris has not provided anything that would permit us to grant

habeas relief on his first Strickland claim.

B.

Morris’s second Strickland claim is that his trial counsel was ineffective for

failing to advise him of his right to testify during the penalty phase. This Court,

relying on the Supreme Court’s decision in Rock v. Arkansas, 483 U.S. 44 (1987),

has recognized that “a criminal defendant has a fundamental constitutional right to

testify in his or her own behalf at trial” under several provisions of the

Constitution, including the Sixth and Fourteenth Amendments. United States v.

Teague, 953 F.2d 1525, 1530-32 (11th Cir. 1992) (en banc) (emphasis omitted).

“This right is personal to the defendant and cannot be waived either by the trial

court or by defense counsel.” Id. at 1532. “Defense counsel bears the primary

responsibility for advising the defendant of his right to testify or not to testify, the

strategic implications of each choice, and that it is ultimately for the defendant

himself to decide. This advice is crucial because there can be no effective waiver

of a fundamental constitutional right unless there is an ‘intentional relinquishment

or abandonment of a known right of privilege.’” Id. at 1533 (footnote omitted)

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Where defense counsel has

not informed the defendant of his right to testify, defense counsel “has not acted

24
within the range of competence demanded of attorney[s] in criminal cases.”

Gallego v. U.S., 174 F.3d 1196, 1197 (11th Cir. 1999) (citation and internal

quotation marks omitted); see Teague, 953 F.2d at 1534.

Here, the record is unclear as to whether Morris’s trial counsel properly

advised him of his right to testify during the penalty phase. As with the first

Strickland claim, the Florida Supreme Court did not determine whether there was

deficient performance, and instead went straight to the prejudice prong and

concluded that Morris had failed to meet his burden of establishing prejudice.

Morris II, 931 So. 2d at 834. We, again, take the same approach. Morris’s

ineffective assistance of counsel claim fails because he has not established that the

Florida Supreme Court’s prejudice determination was an unreasonable application

of Strickland.

During the penalty phase, Morris’s trial counsel presented substantial

mitigating evidence on his behalf, including testimony from twelve witnesses.

Much of the testimony focused on Morris’s severely troubled childhood. For

example, Morris’s mother Linda Bell and sister Paula Howard testified regarding

the rape of four-year-old Howard when Morris was five years old, and that Morris

was angry and upset about not being able to protect his sister. Morris’s mother and

sister also testified that Morris’s mother’s boyfriend, a man named Santee,

25
frequently beat Morris’s mother, made the children watch him beat their mother,

and also beat Morris when Morris tried to help his mother during the beatings.

Morris’s other sister, Sharon Watson, further testified that the children saw Santee

beat their mother with a wire hanger and that he threatened Morris’s mother with a

knife. Morris’s mother also testified that Morris would steal as a child, and that

they had been arrested together for shoplifting. A friend of Morris’s mother,

Mandy Candie, testified that Morris’s mother encouraged Morris to steal for her.

Morris also presented expert health testimony from Dr. Dee, a clinical

psychologist and neuropsychologist. Dr. Dee testified that Morris witnessed and

experienced “savage” abuse as a child. Dr. Dee testified that Morris would steal as

a child to obtain his mother’s approval. Dr. Dee also testified at length regarding

Morris’s and Morris’s mother’s abuse of drugs, Morris’s development of an ulcer

when he was a child, and Morris’s low IQ level.

Morris does not dispute the contents of the testimony offered on his behalf at

the penalty phase. Notably, at the postconviction evidentiary hearing, Morris did

not offer additional testimony beyond what was already presented. When asked on

direct examination what his testimony would have been at the penalty phase, he

responded that “I would have answered whatever questions they asked me.”

Morris also stated at the evidentiary hearing that he would have testified as to his

26
upbringing, how he felt when his mother made him steal, and how he came to be

diagnosed with ulcers. Morris also suggested that he would have reaffirmed his

innocence: when asked on cross-examination whether he would “still have denied

that [he] killed Mrs. Livingston” in his penalty phase testimony, Morris replied, “I

didn’t do it.” Morris’s arguments in his habeas petition are similar. He states that

he would have described the abuse he and his family suffered because of his

mother’s boyfriend, that he would have discussed how his mother forced him to

shoplift, that he could have clarified his vocational training, and that he could have

described “the numerous factors in his background that would mitigate against the

imposition of the sentence of death.” In his brief, Morris again argues that he

“suffered prejudice because the jury did not hear him describe, in his own words,

the abuse and trauma suffered as a child.”

In light of the unrebutted factfinding by the Florida Supreme Court that

Morris would not have been credible in reasserting his innocence and that his

proposed testimony would have been cumulative, Morris II, 931 So. 2d at 834, the

Florida Supreme Court’s determination that any failure by trial counsel to inform

Morris of his right to testify did not undermine its confidence in the outcome of the

penalty phase was not an unreasonable one. See Wong v. Belmontes, 130 S. Ct.

383, 388 (2009) (per curiam) (rejecting the argument that petitioner established

27
Strickland prejudice when the additional mitigating evidence that counsel failed to

introduce was cumulative with the substantial mitigation evidence that had been

presented to the jury); Stewart v. Dugger, 877 F.2d 851, 856 (11th Cir. 1989)

(observing that additional character witnesses “would not have had an effect on

[the jury’s] verdict” because “[s]uch testimony would have merely been

cumulative”). Moreover, to the extent Morris planned to reassert his innocence at

the penalty phase, the testimony would not have helped him, because the same jury

had already found Morris guilty of the murder. Indeed, this testimony likely would

have harmed Morris’s penalty phase defense. In short, Morris has not

demonstrated a reasonable probability that his sentence would have been different

had he testified during the penalty phase of the trial, much less that the Florida

Supreme Court’s contrary conclusion was an unreasonable one. Accordingly, we

deny Morris relief on his second Strickland claim.

C.

Morris’s next claim is that the state trial court erred in failing to consider his

history of illegal drug use as a nonstatutory mitigating factor in its sentencing

order, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Morris

relies on Lockett v. Ohio, 438 U.S. 586 (1978), and its progeny for the now well-

established proposition that the sentencer in a capital case must consider any

28
relevant mitigating evidence. Id. at 608; Eddings v. Oklahoma, 455 U.S. 104, 113-

14 (1982) (“Just as the State may not by statute preclude the sentencer from

considering any mitigating factor, neither may the sentencer refuse to consider, as a

matter of law, any relevant mitigating evidence.”); see also Glock v. Moore, 195

F.3d 625, 637 n.20 (11th Cir. 1999).

The operative word, however, is “consider.” The Supreme Court has made

clear that the sentencer need not accept or ascribe any specific weight to the

evidence that it considers. “Acceptance of nonstatutory mitigating factors is not

constitutionally required; the Constitution only requires that the sentencer consider

the factors.” Atkins v. Singletary, 965 F.2d 952, 962 (11th Cir. 1992) (citing

Blystone v. Pennsylvania, 494 U.S. 299, 308 (1990)); accord Harris v. Alabama,

513 U.S. 504, 512 (1995) (“[T]he Constitution does not require a State to ascribe

any specific weight to particular factors, either in aggravation or mitigation, to be

considered by the sentencer.”). As the Supreme Court later stated in Johnson v.

Texas, 509 U.S. 350 (1993), “Lockett and its progeny stand only for the

proposition that a State may not cut off in an absolute manner the presentation of

mitigating evidence,” id. at 361.

Morris was in no way prevented from presenting to both the judge and jury

evidence of his past drug use as potential mitigating evidence, and the Florida

29
Supreme Court made a factual finding that the trial court did consider that

evidence. Morris I, 811 So. 2d at 667. For us to grant relief on this claim, Morris

would have to provide clear and convincing evidence rebutting the Florida

Supreme Court’s unambiguous factual finding that “the trial court did find and

weigh the prior history of drug abuse and addiction.” Id.; see 28 U.S.C. § 2254(e).

In addition, the district court made its own factual finding that “[t]his Court’s

review of the record demonstrates that the trial court considered and weighed

Morris’ prior history of drug abuse and addiction, but gave the mitigating factor

little weight.” 2009 WL 3170497, at *29. This factual finding is itself reviewed

for clear error. Spencer, 609 F.3d at 1177.

Morris has not met his substantial burden of rebutting these factual findings.

Indeed, Morris does not even argue that the state trial court failed to weigh the

evidence. He says instead that “it is not clear how the court considered the

nonstatutory mitigation. The court stated that the prior drug use in the past is not

mitigating yet the court weighed the mitigation giving it little weight.” Morris

seems to argue that the state trial court’s confusing language itself amounted to

constitutional error, because it “contributed to the court’s finding that the

mitigation [was] entitled to little weight.” Thus, Morris concedes that the trial

court did consider and weigh his past drug use as mitigating evidence, but makes

30
the pained argument that the “trial court went into the analysis with the

preconceived notion that the drug use was not mitigation.” When a trial court

considers mitigating evidence during sentencing, as the trial court did here with

respect to Morris’s past drug use, there simply is no constitutional error of the kind

Morris now urges us to recognize. See Harris, 513 U.S. at 512; Blystone, 494 U.S.

at 307-08; Atkins, 965 F.2d at 962. Accordingly, the Florida Supreme Court’s

decision denying relief on this claim was not contrary to or an unreasonable

application of clearly established federal law.

D.

Finally, Morris claims that cumulative trial court errors deprived him of his

Sixth Amendment right to a fair trial. “The cumulative error doctrine provides that

an aggregation of non-reversible errors (i.e., plain errors failing to necessitate

reversal and harmless errors) can yield a denial of the constitutional right to a fair

trial, which calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th

Cir. 2005) (internal quotation marks omitted). We address claims of cumulative

error by first considering the validity of each claim individually, and then

examining any errors that we find in the aggregate and in light of the trial as a

whole to determine whether the appellant was afforded a fundamentally fair trial.

See United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).

31
 Plainly, Morris’s cumulative error claim must fail. As demonstrated above,

none of Morris’s individual claims of error or prejudice have any merit, and

therefore we have nothing to accumulate. This Court has made clear that where

“[t]here [is] no error in any of the [trial] court’s rulings, the argument that

cumulative trial error requires that this Court reverse [the defendant’s] convictions

is without merit.” United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005);

see also United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004); United

States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984).3

Because Morris is not entitled to habeas relief on any of the claims raised on

appeal, we affirm the judgment of the district court and deny Morris’s petition for

3
Citing two decisions from one of our sister circuits, the State further argues that, in the
absence of Supreme Court precedent speaking to the issue of cumulative error claims in federal
habeas, Morris’s cumulative error claim does not even present a cognizable claim upon which
habeas relief may be granted under AEDPA. See Williams v. Anderson, 460 F.3d 789, 816 (6th
Cir. 2006) (“[C]umulative error claims are not cognizable on habeas because the Supreme Court
has not spoken on this issue.”); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002), amended
on other grounds, 307 F.3d 459 (6th Cir. 2002) (“The Supreme Court has not held that distinct
constitutional claims can be cumulated to grant habeas relief.”). But see Parle v. Runnels, 505
F.3d 922, 928-29 (9th Cir. 2007) (recognizing claims of cumulative error in federal habeas,
stating that “the Supreme Court has clearly established that the combined effect of multiple trial
errors may give rise to a due process violation if it renders a trial fundamentally unfair, even
where each error considered individually would not require reversal” (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); Chambers v. Mississippi, 410 U.S. 284, 290 n.3, 298,
302-03 (1973))). We need not determine today whether, under the current state of Supreme
Court precedent, cumulative error claims reviewed through the lens of AEDPA can ever succeed
in showing that the state court’s decision on the merits was contrary to or an unreasonable
application of clearly established law. For our purposes, it is enough to say that Morris’s
cumulative error claim clearly fails in light of the absence of any individual errors to accumulate.

32
relief.

AFFIRMED.

33