Stephens v. Secretary, Florida Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2012
No. 11-11727 JOHN LEY
________________________

D.C. Docket No. 3:08-cv-00260-TJC-JRK

JASON DEMETRIUS STEPHENS,

llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllllRespondents - Appellees.

________________________

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

(May 1, 2012)

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
 Jason Demetrius Stephens, a Florida prisoner on death row, appeals from

the district court’s denial of his petition for a writ of habeas corpus, brought

pursuant to 28 U.S.C. § 2254. Stephens first argues that the trial court erred in

sentencing him to death because his sentence is unconstitutionally

disproportionate pursuant to the Eighth Amendment and the Supreme Court

jurisprudence laid out in Enmund v. Florida, 458 U.S. 782 (1982) and Tison v.

Arizona, 481 U.S. 137 (1987). Stephens also claims that his trial counsel was

ineffective at the guilt phase and at the penalty phase, and that the trial court erred

in denying his claim that trial counsel was operating under a conflict of interest by

delegating the primary responsibility for litigating Stephens’ case to counsel for

Stephens’ co-defendant.

I. Background

The Florida Supreme Court summarized the facts of this case as follows:

The overwhelming evidence of guilt in this case shows
Stephens broke into Robert Sparrow, Jr.’s house on June 2, 1997, at
approximately 2 p.m., while a number of people were present. He
robbed the people there and kidnapped a child. There were three or
four other people with Stephens at the time he committed these
crimes. However, Stephens refused to cooperate with the authorities
in their efforts to identify the other individuals. One of the
individuals, Horace Cummings (Cummings), turned himself into the
police and was tried with Stephens. The other two individuals were
never apprehended. Stephens testified at trial that Cummings and the

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other unidentified individuals went to the house to buy drugs and
were unaware of his plan to rob the occupants.

There were eight eyewitnesses in the house who testified at
trial. While some of the details of the eyewitness’ accounts varied,
they all substantially agreed with the following summary of events.
Stephens entered the house first, carrying a nine millimeter automatic
gun. He was standing next to Robert Sparrow, III (Sparrow III), who
was three years and four months old. Upon seeing the gun, the child’s
mother, Consuelo Brown, physically confronted Stephens. Stephens
hit her with the gun on the bridge of her nose. Ms. Brown fell to the
ground and her nose began to bleed. Stephens ejected a bullet onto
the floor and informed the occupants that the gun was loaded. He told
them that he wanted “money and weed.” He demanded from Robert
Sparrow, Jr. (Sparrow Jr.) the keys to a blue car located outside the
house. Sparrow Jr. told Stephens the keys were with someone who
was not present at the house.

Thereafter, two other individuals entered the house. One of the
individuals was Cummings, but the other individual was never
identified. Stephens made all the occupants lie down on the floor as
he searched their pockets for valuables. The unidentified individual,
referred to as Plats or Dreds because of the way he wore his hair, held
the occupants of the house on the floor at gunpoint while Stephens
located a secured room where he could put them. There was some
testimony that Sparrow III said he was being choked, but it was
unclear from the record who was choking him. After inspecting the
house, Stephens determined the bathroom was the most secure
location to put his hostages, and he ordered six of them, including
six-year-old Kahari Graham, to crawl to the bathroom. Sparrow III
was kept separate from the others.

Many of the eyewitnesses testified that Stephens showed his ID
and said he was taking Sparrow III with him as insurance. Sparrow Jr.
testified Stephens agreed he would leave the child at the corner if he
was not followed. Stephens also testified he agreed to leave the child

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somewhere, but he did not know what location the child’s father had
referred to in his testimony.

After the occupants had been secured in the bathroom, Sparrow
Jr.’s half-brother, David Cobb (Cobb), and his friend, Roderick
Gardner (Gardner), arrived at the house. Upon entry, they too were
robbed and forced to crawl to the bathroom. One of the items
Stephens took from Gardner was his car keys. Gardner was driving
his mother’s dark green Kia, which had roll-down windows and pull-
up locks. There was testimony that Sparrow III had ridden in the Kia
the day before he was killed. On that day, he had been scolded for
rolling down the windows and trying to open the car door while it
was moving. The record did not reflect that Stephens had any way of
knowing whether the child was capable of rolling down the windows
or opening the car door.

When Stephens exited the house with the child, the other
individuals who Stephens testified had only gone to the house to buy
drugs, were seated in the black car they had driven to the scene.
Stephens testified the other individuals waved him away from the
black car because he had the child. Stephens then ordered the boy to
get into the Kia. Both cars pulled away from the house, with the Kia
following the black car. After driving eight tenths of a mile, both cars
pulled over in a residential neighborhood. It was approximately 2:30
p.m. The Kia was parked on the side of the street without the benefit
of any shade. The outside temperature was approximately 82 degrees
and sunny. The windows in the car were rolled up and all of the doors
were closed. At 9:25 p.m., the dark green Kia was found. Sparrow III
was dead, his body lying face down in the passenger’s seat with his
feet angled toward the steering wheel. The State argued Stephens
suffocated Sparrow III before leaving the car. Stephens testified the
boy was alive when he left him in the car.

The medical examiner, Bonifacio Floro, M.D., testified that in
his expert medical opinion Robert Sparrow, III had probably died of
asphyxiation. However, he could not conclusively rule out
hyperthermia as the cause of death. He primarily relied upon multiple

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 “petechiae” in the face and eye lining as an indication of
asphyxiation. He also noted there was a small four-millimeter scratch
on the back of the child’s neck. Dr. Floro concluded this scratch was
probably caused by a fingernail. Dr. Floro testified the child’s lower
lip was bruised, indicating he had been suffocated. Dr. Floro also
relied upon the lack of fingerprints or other evidence showing the
child tried to roll down the window or open the door in concluding it
was more likely that Sparrow III died from asphyxiation than
hyperthermia.

Steven Frank Dunton, M.D., testified on the defendant’s behalf.
After reviewing Dr. Floro’s report, he concluded Sparrow III died
from hyperthermia. Dr. Dunton relied upon the fact that there were
very few signs of asphyxiation. However, he did admit asphyxiation
can never be conclusively ruled out because it can leave no signs at
autopsy. Dr. Dunton admitted hyperthermia by itself should not cause
petechiae, whereas asphyxiation could. However, he went on to
explain that gravity will pull the blood down to the lowest point of
the body when the heart stops pumping, causing the blood to pool to
such a degree that venules rupture resulting in petechiae. He
attributed the discoloration of the child’s lips to the tissues drying out
after death. Therefore, he concluded Dr. Floro erred in relying on the
petechiae to diagnose the child’s death as being caused by
asphyxiation.

Based upon these facts the jury concluded Stephens was guilty
of first-degree murder. The verdict form did not delineate between
first-degree premeditated murder and first-degree felony murder.

Stephens v. State, 787 So. 2d 747, 750-52 (Fla. 2001) (per curiam) (Stephens I)

(footnotes omitted). Stephens was convicted of one count of armed robbery and

one count of first degree murder. The jury recommended by a nine to three vote

that Stephens be sentenced to death for the murder of Robert Sparrow III. Id. at

5
752. In accordance with the jury’s recommendation, the trial court sentenced

Stephens to death for the first degree murder charge. Stephens had previously

pled guilty to several other counts,1 and the trial judge sentenced him to

accompanying consecutive and concurrent terms of life on the robbery and

kidnaping counts. Id. at 752-53.

On direct appeal, the Florida Supreme Court rejected Stephens’ arguments,

including his argument that his sentence was unlawful under Tison and Enmund,

and affirmed Stephens’ convictions and sentences. Id. at 753. Stephens

subsequently filed a petition for writ of certiorari which was denied. Stephens v.

Florida, 534 U.S. 1025 (2001).

Thereafter, Stephens filed a post-conviction motion in the state circuit

court, and after an evidentiary hearing, the state court denied relief. Stephens

appealed and simultaneously filed a state habeas petition to the Florida Supreme

Court. On November 15, 2007, the Florida Supreme Court affirmed the denial of

postconviction relief and denied the habeas petition. Stephens v. State, 975 So. 2d

405 (Fla. 2007) (per curiam) (Stephens II). Stephens filed a federal habeas

petition which was denied on March 17, 2011.

1
Prior to trial, Stephens pled guilty to one count of armed kidnaping, three counts of
armed robbery, two counts of attempted robbery, one count of armed burglary and one count of
aggravated battery.

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 II. Standard of Review

This appeal is governed by 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996. Because Stephens’s

claims were adjudicated on the merits in his state proceedings, § 2254(d) allows

federal habeas relief only if the state court adjudication

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). We review the district court’s denial of a habeas petition de

novo. Harrell v. Butterworth, 251 F.3d 926, 930 (11th Cir. 2001) (per curiam).

III. Discussion

A. Proportionality

Stephens argues that his death sentence is disproportionate under the Eighth

Amendment because, at trial, the prosecution was not required to prove that he

intentionally killed the victim. Rather, Stephens was convicted of first degree

felony murder. The Cruel and Unusual Punishments Clause of the Eighth

Amendment is directed, in part, “‘against all punishments which by their excessive

length or severity are greatly disproportioned to the offenses charged.’” Enmund,

458 U.S. at 788 (quoting Weems v. United States, 217 U.S. 349, 371 (1910)). In

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Enmund, the Supreme Court overturned a defendant’s death sentence for felony

murder because, in that case, there was “no finding of an intent to kill.” Enmund,

458 U.S. at 795. In Tison, however, the Supreme Court qualified this holding,

indicating that a death sentence for felony murder can be sustained where there is

“major participation in the felony committed, combined with reckless indifference

to human life.” Tison, 481 U.S. at 158. The Tison court emphasized that “[a]

critical facet of the individualized determination of culpability required in capital

cases is the mental state with which the defendant commits the crime.” 481 U.S. at

156. Thus, the relevant question before us is whether the Florida Supreme Court’s

finding that Stephens acted with the mental state, and level of involvement

required by Enmund and Tison, was contrary to or an unreasonable application of

clearly established federal law.

At the penalty phase of Stephens’ trial, the trial judge submitted a form to

the jury requiring it to answer, by way of advisory sentence, whether

Stephens killed the victim, or attempted to kill the victim, or intended
that the victim be killed, or that he played a significant role in the
underlying felony and acted with reckless indifference to human life.

The jury answered the question in the affirmative, and was also polled following

the announcement of the verdict. In accordance with the jury’s determination and

recommendation, the trial court sentenced Stephens to death on the first degree

8
murder count. The Florida Supreme Court concluded that the trial court’s jury

instructions made clear that the jury could not consider the death penalty as a

possible punishment unless it unanimously found, beyond a reasonable doubt, that

Stephens killed the victim, attempted to kill the victim, intended the victim to be

killed or played a significant role in the underlying felony and acted with a

reckless indifference to human life. The trial court’s interrogatory, which mirrored

the language of Tison, was specifically answered in the affirmative by the jury.

We therefore cannot find that the Florida Supreme Court’s application of clearly

established federal law was unreasonable in this case.

B. Ineffective Assistance at the Guilt Phase

Stephens next argues that during the guilt phase of trial, his trial counsel

was ineffective for: (1) advising Stephens to plead guilty prior to trial to the

underlying felony (armed kidnaping) of the felony murder charge; (2) advising

Stephens to plead guilty prior to trial to the armed robbery of Derrick Dixon–when

Dixon testified at trial that he had not been robbed–and then failing to file a

motion to withdraw that guilty plea when the prosecution admitted this testimony

should have resulted in a directed verdict; (3) failing to personally attend key

depositions, instead of relying on the attendance of his co-defendant’s counsel; (4)

failing to move and argue for a change of venue based on prejudicial pretrial

9
publicity; (5) failing to object to numerous instances of improper conduct by the

prosecutor at the guilt phase; (6) failing to adequately argue motions for judgment

of acquittal and new trial; (7) delegating his responsibilities to co-defendant’s

counsel; and (8) failing to subject the prosecution’s case to meaningful adversarial

testing under United States v. Cronic, 466 U.S. 648 (1984).

We consider each of these claims under the test established in Strickland v.

Washington, 466 U.S. 668, 687 (1984). To obtain relief on an ineffective

assistance of counsel claim,

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687.

(1) Counsel’s advice to plead guilty to armed kidnaping

At Stephens’ state post-conviction evidentiary hearing, the trial court found

that Stephens’ lawyer was deficient for advising Stephens to plead guilty to armed

kidnaping because this was “not a reasonable strategy,” and the Florida Supreme

Court agreed. Stephens II, 975 So. 2d at 419. However, the Florida Supreme

Court also found that Stephens could not demonstrate Strickland prejudice. In

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order to show that counsel’s deficiency prejudiced him, Stephens must show that

“but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Stephens

cannot meet this standard. The record reflects that the plea to the kidnaping charge

was made knowingly and voluntarily. Furthermore, Stephens conceded his

involvement in the kidnaping during his own testimony, admitting that he took the

victim from the house. Counsel utilized Stephens’ pleas in his argument at the

penalty phase, arguing that the jury should consider them as evidence of Stephens’

remorse and rehabilitation potential. Moreover, throughout the trial, counsel

argued that Stephens did not intentionally kill the victim, which was the primary

point of contention at trial.

We cannot say that the Florida Supreme Court’s determination that

Stephens failed to show that his counsel’s deficient strategy prejudiced these

proceedings was contrary to or an unreasonable application of clearly established

federal law.

(2) Counsel’s advice to plead guilty to the armed robbery of Derrick Dixon

Likewise, Stephens argues that counsel was deficient for advising him to

plead guilty to the armed robbery of Derrick Dixon, and subsequently failing to

move to withdraw the guilty plea, because Dixon testified that nothing was taken

11
from him. The Florida Supreme Court again determined that Stephens could not

establish prejudice with respect to this claim:

During the defense’s case, Stephens admitted to robbing
Derrick Dixon. He testified that he took $20 from Derrick Dixon, and
when counsel asked him about Dixon’s testimony that Stephens did
not take anything from him, Stephens admitted that he did in fact take
money from Dixon.

Thus, Stephens fails to demonstrate that there is a reasonable
probability that the outcome of the trial would have been different
had counsel moved to withdraw the guilty plea to the charge of armed
robbery. Accordingly, the trial court properly denied relief on this
claim.

Stephens II, 975 So. 2d at 420. Moreover, the robbery of Derrick Dixon was not

prejudicial because it was insignificant in comparison to the overwhelming

evidence that he robbed other individuals in the house and kidnaped the victim.

We therefore cannot say that the Florida Supreme Court’s resolution of this claim

was contrary to or an unreasonable application of clearly established federal law.

(3) Counsel’s failure to personally attend key depositions

The Florida Supreme Court found that counsel was deficient for failing to

personally attend numerous critical depositions. Stephens II, 975 So. 2d at 418.

However, Florida Supreme Court concluded that Stephens could not show

prejudice because he failed to “demonstrate that, but for counsel’s failure to attend

12
these depositions, there is a reasonable probability that the outcome of the trial

would have been different.” Id.

This conclusion is not contrary to or an unreasonable application of clearly

established federal law. The Florida Supreme Court explained that the depositions

were attended by co-defendant’s counsel. Although we do not countenance the

failure to personally attend important depositions, Stephens did not demonstrate

before the Florida Supreme Court and does not demonstrate here how he was

prejudiced by this failure.

(4) Counsel’s failure to move and argue for a change of venue due to abnormal
pretrial publicity

Stephens next claims that his counsel was ineffective for failing to

independently move for a change of venue, as opposed to relying on his co-

defendant’s motion, due to abnormal pretrial publicity. Stephens again cannot

demonstrate prejudice. The Florida Supreme Court reasoned that Stephens “failed

to allege facts indicating abnormal pretrial publicity.” Stephens I, 787 So. 2d at

757. The court found that

[T]he trial court went beyond the necessary precautions to ensure the
jury selected was fair and impartial by conducting individual voir dire
of the potential jurors to detect any potential juror who had been
persuaded by the pretrial publicity. Out of the 115 potential jurors, the
court leniently dismissed 40 potential jurors because it felt there was
“some reasonable doubt” that they could be fair and impartial.
Further, the court noted two-thirds of the potential jurors, including

13
 all of the jurors who were ultimately selected to serve on the jury,
stated they could be fair and impartial. Accordingly, the trial court
acted within its discretion in denying the motion for a change of
venue.

Id., at 757-58. As the Supreme Court has noted,

Our decisions have rightly set a high bar for allegations of juror
prejudice due to pretrial publicity. News coverage of civil and
criminal trials of public interest conveys to society at large how our
justice system operates. And it is a premise of that system that jurors
will set aside their preconceptions when they enter the courtroom and
decide cases based on the evidence presented.

Skilling v. United States, 130 S. Ct. 2896, 2925 n.34 (2010) (citations omitted).

Stephens has not demonstrated that the jury was so tainted by pretrial publicity

that they could not decide the case solely on the evidence and the judge’s

instructions. Indeed, the record demonstrates that the trial court went to great

lengths to voir dire the jury with regard to the pretrial publicity of this case, and to

insulate the jury from the taint of impartiality. Thus, we cannot say that the

Florida Supreme Court’s resolution of this claim is contrary to or an unreasonable

application of clearly established federal law.

(5) Failure to object to instances of improper conduct by the prosecutor at the
guilt phase

Stephens’ claim that counsel was ineffective for failing to object to

numerous instances of improper conduct by the prosecutor also fails. As the

Florida Supreme Court explained

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 In order to prevail on an ineffective assistance of counsel claim on
these grounds, Stephens must first show that the comments were
improper or objectionable and that there was no tactical reason for
failing to object. Secondly, Stephens must demonstrate that the
comments deprived “the defendant of a fair and impartial trial,
materially contribute[d] to the conviction, [were] so harmful or
fundamentally tainted as to require a new trial, or [were] so
inflammatory that they might have influenced the jury to reach a more
severe verdict than that it would have otherwise.” Spencer v. State,
645 So. 2d 377, 383 (Fla. 1994). The trial court found that none of the
comments was so prejudicial that Stephens was denied a fair trial, and
we agree. When read in context, these comments were not improper
and did not deprive Stephens of a fair trial.

Stephens II, 975 So. 2d at 420 (alterations in original). The Florida Supreme Court

determined that the comments of the prosecutor were not a sufficient basis to

reverse the conviction. “Because the alleged comments were not improper,

Stephens fails to show that he was prejudiced under Strickland.” Stephens II, 975

So. 2d at 421. We cannot say that the state court’s determination that Stephens

was not prejudiced by counsel’s lack of objection was unreasonable or contrary to

clearly established federal law.

(6) Failure to adequately argue motions for judgment of acquittal and new trial

Stephens argues that his trial counsel was ineffective for making a “bare

bones” motion for a judgment of acquittal and motion for new trial, and therefore

failed to preserve various arguments for Stephens’ direct appeal. On direct appeal,

the Florida Supreme Court did find that counsel had failed to preserve these

15
arguments. Stephens I, 787 So. 2d at 753 (“This claim was not preserved for

appeal because Stephens’ counsel made a bare bones motion for judgment of

acquittal, without any specific argument.”). However, the Florida Supreme Court

went on to deny both motions on the merits, finding that there was

“overwhelming” evidence of guilt, and that the “manifest weight of the evidence

proves, at a minimum, that Stephens committed felony murder.” Stephens I, 787

So. 2d at 754 (“This issue has not been properly preserved for appeal because

Stephens’ counsel made a bare bones motion for a new trial. . . . Moreover, even if

this issue had been preserved for appeal, we would find no error because the claim

is without merit.”). On post-conviction review, the Florida Supreme Court

determined that counsel’s failure to more vigorously argue these motions did not

prejudice Stephens because, on direct appeal, the Florida Supreme Court both

acknowledged that the claims were unpreserved and denied them on the merits in

any case. We cannot say that this conclusion was contrary to or an unreasonable

application of clearly established federal law.

(7) Delegation of counsel’s responsibilities to co-defendant’s counsel

Stephens argues that he his counsel was ineffective for delegating

substantive duties to counsel for his co-defendant. Stephens makes a similar,

separate argument, albeit on the same grounds, that counsel was per se ineffective

16
because he was operating under a conflict of interest: “because [Stephens] was

actually represented by the attorney for codefendant Cummings and because

Cummings’ and Stephens’ defenses were antagonistic, his right to conflict-free

counsel was violated.” Stephens II, 975 So. 2d at 422. Although Stephens frames

this argument as two separate claims, we address them together here.

After a careful review of the record in this case, we conclude that the

Florida Supreme Court was not unreasonable in concluding that Stephens’

attorney was acting as his separate counsel, with only Stephens’ interests in mind.

Likewise, although Stephens’ attorney failed to attend some key depositions, as

noted above, and failed to object in certain instances, it is apparent from the record

that Stephens’ counsel was concerned only with Stephens’ interests, and was not

operating under a conflict of interest. The Florida Supreme Court’s denial of these

claims was therefore not contrary to or an unreasonable application of clearly

established federal law.

(8) Failure to subject the prosecution’s case to meaningful adversarial testing

In a related claim, Stephens asserts that the Florida Supreme Court should

not have required him to show that he was prejudiced by counsel’s alleged errors

and should have instead applied the presumption of prejudice under United States

v. Cronic, 466 U.S. 648 (1984) because counsel entirely failed to subject the

17
prosecution’s case to a meaningful adversarial testing by (a) conceding the

underlying felony, (b) laboring under an actual conflict of interest, and (c) failing

to attend key depositions. This claim fails for the reasons already addressed.

Stephens counsel argued throughout trial that Stephens was guilty of kidnaping

and several other serious crimes, but argued that he was not guilty of capital

murder. This “adversarial testing” is apparent throughout all phases of the trial.

Likewise, as addressed above, counsel was not laboring under an actual conflict of

interest, and was not constructively or actually absent from critical stages of the

proceedings, with the exception of several depositions. Thus, the Florida Supreme

Court properly required Stephens to demonstrate that he was prejudiced by

counsel’s alleged errors under Strickland.

C. Ineffective Assistance of Counsel at the Penalty Phase

Stephens argues that, in regard to the penalty phase, his counsel was

ineffective by (1) failing to investigate and present certain mitigating evidence; (2)

failing to neutralize his prior violent felony conviction; (3) failing to object to

improper comments of the prosecutor during the penalty phase; (4) conceding

various aggravating circumstances through guilty pleas; and (5) conceding various

aggravating factors not found by the trial court during closing argument. We

consider each in turn.

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(1) Failure to investigate and present certain mitigating evidence

At the penalty phase, Stephens’ counsel presented ten witnesses to testify to

Stephens’ good qualities. Stephens argues, however, that counsel failed to

adequately investigate other mitigating evidence. The Florida Supreme Court

addressed this issue as follows:

Counsel testified at the evidentiary hearing that his strategy
was to humanize Stephens by calling family and friends to testify that
Stephens was a loving person, that he had good relations with
children, and that he took care of different children. This strategy was
especially important because the case involved the death of a child.
Counsel further testified that he was trying to get the jury to hear
good things about Stephens in an attempt to get a life sentence. The
record demonstrates that counsel did in fact call ten lay witnesses
during the penalty phase. All ten witnesses testified that Stephens was
a loving, cheerful, and bright person who came from a loving family
and who was good with children.

Stephens contends that counsel failed to discover many of the
details that established compelling mitigation, such as his drug use,
an incident where Stephens started a fire at a neighbor’s house, and
the accidental shooting of Stephens’ brother. However, counsel
testified that he did not consider these incidents as mitigation and that
such information went against his strategy to portray Stephens as a
“good guy.”

Stephens II, 975 So. 2d at 414. A recent line of cases from this Court emphasizes

the importance of penalty phase investigation, particularly where a defendant may

have a prior history of mental illness or disability or a history of abuse and neglect

in the home. For example, in Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008),

19
we held that, where the abuse experienced by a defendant far exceeds that which

was presented at the penalty phase, counsel was deficient, and the defendant

prejudiced, by counsel’s failure to present the additional evidence.

Here, however, counsel’s strategy was to omit all negative evidence about

Stephens’ childhood. There was evidence presented at the post-conviction phase

regarding abuse that Stephens suffered at the hands of his father, that Stephens

was a habitual drug user and had been using drugs on the day of Sparrow III’s

death, that he had accidentally set fire to his neighbor’s house at the age of eight,

and that he accidentally shot his brother. Under these circumstances, it was

reasonable for counsel to conclude that failure to present such evidence would

have undermined his “good guy” penalty phase strategy. Contrary to the

circumstances of Williams v. Allen, where counsel failed to fully investigate the

line of defense he actually pursued, and where the jury did not hear all of the

mitigating evidence related to that specific defense, here, Stephens claims that

counsel was ineffective for failing to present testimony that was opposite to, and

would have entirely undermined, counsel’s strategy. While counsel has a duty to

investigate potentially mitigating circumstances,2 pursuit of the “good guy”

2
The ABA Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases 11.4.1(c) (1989), for example, provide that investigations into mitigating evidence
“should comprise efforts to discover all reasonably available mitigating evidence and evidence to
rebut any aggravating evidence that may be introduced by the prosecutor.” This includes

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defense was reasonable in this case, and counsel may “reasonably decline to

investigate a line of defense thoroughly,” where such investigation would lead

only to facts that would be harmful to the defense. Chandler v. United States, 218

F.3d 1305, 1318 (11th Cir. 2000) (en banc). The Florida Supreme Court’s

conclusion that counsel was not deficient for failing to investigate these additional

circumstances was therefore not contrary to or an unreasonable application of

clearly established federal law.

Stephens’ claim that counsel failed to consult and call mental health experts

as witnesses in mitigation of his crime likewise fails because it is unsupported by

the record:

Counsel testified at the evidentiary hearing that he consulted two
experts, Dr. Ernest Miller and Dr. Peter Knox. He further testified
that he did not consult both experts just to know if Stephens was
competent to stand trial or if Stephens was insane at the time of the
crime, but also to see if they could help determine if there was any
mental health mitigation. Counsel testified that after reviewing the
reports of both experts, he believed the experts’ conclusions were
detrimental to Stephens and that it would not be in Stephens’ best
interest to present the findings.

investigating, where relevant, a defendant’s school records, social service and welfare records,
juvenile dependency or family court records, medical history, criminal history, drug abuse
history, and employment history, and conducting a psychological evaluation. Id.

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Stephens II, 975 So. 2d at 414. The trial court credited this testimony, and the

Florida Supreme Court determined that this was sufficient to investigate Stephens’

mental health for purposes of the guilt phase of his capital trial.

Additionally, at the evidentiary hearing, counsel testified that he had not

wanted to call Dr. Miller because the state would have then been able to highlight

several incidents contained in Dr. Miller’s report, specifically the arson incident,

the accidental shooting, and the fact that Stephens had been expelled from school

for fighting. Counsel testified that he did not want the jury to hear about these

facts because he believed that they were adverse to counsel’s “good guy” defense

strategy. Similarly, Dr. Knox’s report indicated that Stephens may have suffered

from an anti-social personality disorder. At the evidentiary hearing, counsel told

the court that he did not consider such evidence as mitigation evidence, and that “I

don’t ever want the jury to hear that.”

During the evidentiary hearing, the trial court heard the testimony of a third

mental health expert, Dr. Jethrow Toomer, who claimed that he could have made

further findings regarding Stephens’ mental health and presented these to the jury.

However, because Dr. Toomer testified that Stephens’ mental health issues were

based on low IQ and a troubled family upbringing, the Florida Supreme Court

found that

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 . . . Dr. Toomer’s findings would have been damaging to the “good
guy” image that counsel was attempting to portray. Counsel cannot be
deemed ineffective when he made a strategic decision to focus on the
positive aspects of Stephens’ life instead of seeking a third opinion.

Stephens II, 975 So. 2d at 415. See also Haliburton v. Sec’y for Dep’t of Corr.,

342 F.3d 1233, 1244-45 (11th Cir. 2003) (concluding that counsel’s decision to

humanize the defendant through lay testimony rather than call a mental health

expert who might have hurt the defense was not deficient performance). We

therefore cannot say that the Florida Supreme Court’s resolution of this claim was

contrary to or an unreasonable application of clearly established federal law.

(2) Failure to neutralize Stephens’ prior violent felony conviction

Stephens also contends that counsel was ineffective for failing to challenge

or neutralize a 1992 burglary conviction that the State introduced as a prior violent

felony aggravator. The Florida Supreme Court found that counsel did, in fact,

conduct discovery with respect to the prior violent felony aggravator, but made the

strategic decision not to call a neutralizing witness, because he did not want to

draw further attention to the incident:

With regard to the failure to neutralize the burglary conviction as an
aggravator, counsel testified at the evidentiary hearing that he
deposed Latonya Jackson, the victim of the burglary, and looked at
the police reports of the burglary conviction and understood that there
was damaging information about it. Counsel testified that he knew
that even if he objected to the introduction of the aggravator, the
burglary conviction was nonetheless going to come in. As a result,

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 counsel made a strategic decision not to focus on introducing
evidence to possibly lessen the weight of the aggravator because he
believed it could backfire.

Stephens II, 975 So. 2d at 415. Because counsel made a strategic decision not to

present this evidence, we cannot find that the Florida Supreme Court’s resolution

of this claim was contrary to or an unreasonable application of clearly established

federal law.

(3) Failure to object to improper comments of the prosecutor during the penalty
phase

Stephens alleges trial counsel was ineffective for failing to object to

portions of the prosecutor’s argument in which he discussed the State’s victim

impact evidence, described Stephens’s actions as transforming the victim from a

happy little boy into a corpse, appealed to the jury’s sympathy, and showed the

jury photos of the victim that had been admitted into evidence. As the Florida

Supreme Court explained, “[c]ounsel is not ineffective for making a tactical

decision not to object to statements and photographs introduced during the State’s

closing arguments when those statements and photographs were not improper.”

Stephens II, 975 So. 2d at 416-17. At the evidentiary hearing, counsel testified

that he did not find anything objectionable about the prosecutor’s comments, and

that as a defense attorney you have to “pick your fights carefully” or risk

“alienating” the jury. We therefore cannot find that the Florida Supreme Court’s

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resolution of this claim was contrary to or an unreasonable application of clearly

established federal.

(4) Conceding various aggravating circumstances through guilty pleas.

Stephens argues that counsel was ineffective for advising him to plead

guilty to certain crimes that constituted aggravating circumstances. As discussed

above, in Hill v. Lockhart, the Supreme Court held that when a defendant

challenges his guilty pleas based on ineffective assistance of counsel, “the

defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to

trial.” 474 U.S. at 59. Stephens cannot meet this standard. As the Florida

Supreme Court points out:

Penalty phase counsel . . . testified that lead counsel’s strategy
was to gain credibility with the jury and that this strategy worked
because entering guilty pleas on certain charges resulted in an
acquittal of some of the charges for which Stephens pled not guilty.
During the penalty phase, counsel even stated during his closing
arguments that the fact that Stephens pled guilty to a number of
charges should be seen as mitigation. In fact, in its sentencing order,
the trial court found in mitigation that Stephens entered pleas to some
counts of the indictment.

Counsel is not deemed ineffective for using a strategy that
benefited Stephens. Stephens fails to show that counsel was deficient
under Strickland.

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Stephens II, 975 So. 2d at 418 (internal citation omitted). We cannot find that the

Florida Supreme Court’s resolution of this claim was contrary to or an

unreasonable application of clearly established federal law.

(5) Conceding various aggravating factors not found by the trial court during
closing argument

Stephens further argues that counsel conceded certain aggravators in his

closing statement. However, the Florida Supreme Court found that this was not

the case:

Stephens alleges that counsel conceded both the heinous,
atrocious, or cruel (HAC) aggravator and the pecuniary gain
aggravator to the jury during his closing argument. Stephens is
mistaken as counsel did not concede either aggravator. With regard to
the pecuniary gain aggravator, counsel explained to the jury that the
aggravator should be merged with the murder “in the course of a
felony” aggravator. Counsel explained that because Stephens had
been convicted of robbery, which was one of the enumerated felonies
recognized for the aggravating circumstance of murder “in the course
of a felony,” the crime was for financial gain, and as a result, the two
aggravators should merge.

With regard to the HAC aggravator, counsel attempted to
emphasize to the jury that the State had not proven the aggravator
beyond a reasonable doubt. Counsel stated to the jury that they should
give very little weight to the HAC aggravator because none of the
medical testimonies demonstrated that Little Rob suffered from a
prolonged, agonizing kind of death, which is necessary for the HAC
aggravator to apply. Counsel also stated that there was no proof of
enjoyment of punishment or some kind of pleasure in making Little
Rob suffer the way he did.

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Stephens II, 975 So. 2d at 417. Based on this record, Stephens fails to demonstrate

that counsel was deficient under Strickland. Furthermore, Stephens cannot show

prejudice because, as he himself points out, the trial court did not find that either

the financial gain or the HAC aggravator was proven beyond a reasonable doubt,

and therefore did not give weight to these aggravators in sentencing Stephens to

death. We cannot find that the Florida Supreme Court’s resolution of this claim

was contrary to or an unreasonable application of clearly established federal law.

III. Conclusion

In denying Stephens’ claim for relief, we echo the district court’s concerns

about this case:

This is a close death penalty case, as evidenced by the 4-3
decision of the Florida Supreme Court on the direct appeal. The
imposition of the death penalty was not based upon a finding that
Petitioner intended to murder the child victim. Instead, it was
predicated upon a finding that he played a major role in the
underlying felony and acted with reckless indifference to the child’s
life. Under the highly deferential standard for federal habeas review
of state court adjudications, see 28 U.S.C. § 2254(d), this Court
concludes that the Florida Supreme Court’s adjudication of this
Tison/Enmund issue was not contrary to clearly established federal
law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceedings.

Additionally, this Court has serious misgivings about
Petitioner’s counsel’s failure to attend depositions, failure to advocate
more thoroughly on his client’s behalf and his advising Petitioner to

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 plead guilty to the kidnapping that was the underlying felony under
the felony murder theory. Counsel representing a defendant in a
capital case owe their client and our system of justice better.
However, this Court must evaluate Petitioner’s ineffective assistance
of counsel claims “[u]nder the doubly deferential judicial review that
applies to a Strickland claim evaluated under the § 2254(d)(1)
standard.” [Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)].
Here, the state circuit court thoroughly addressed and rejected
Petitioner’s ineffectiveness claims after conducting an evidentiary
hearing. Thereafter, the Florida Supreme Court reviewed in detail the
same ineffectiveness issues and found that Petitioner is not entitled to
post-conviction relief.

Stephens v. McNeil, No. 3:08-cv-260-J-32JRK (March 17, 2011), at 51-52.

However, because the Florida Supreme Court’s resolution of this case was not

contrary to or an unreasonable application of clearly established federal law,

Stephens’ habeas petition is denied.

AFFIRMED.

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