[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
________________________ APPEALS
ELEVENTH CIRCUIT
MAY 15, 2012
No. 09-10773 JOHN LEY
________________________
D. C. Docket No. 91-06717-CMA
THOMAS DEWEY POPE,
Petitioner-Appellant,
Cross-Appellee,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
Respondent-Appellee,
Cross-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 15, 2012)
Before TJOFLAT, MARCUS and BLACK, Circuit Judges.
MARCUS, Circuit Judge:
Petitioner Thomas Dewey Pope was convicted on three counts of first
degree murder for the deaths of Caesar Di Russo, Albert Preston Doranz, and
Kristine A. Walters, and was sentenced to death in Florida’s state courts for the
murder of Walters. On collateral review of this capital case, the district court
granted in part the petitioner’s federal application for writ of habeas corpus,
finding that trial counsel was ineffective during the penalty phase of the trial by
failing to develop and present substantial mitigating evidence to the jury, and by
failing to object to the prosecutor’s closing argument to the jury that Pope
preferred a death sentence over life imprisonment. The district court rejected the
remainder of Pope’s petition, holding, among other things, that trial counsel was
not ineffective during the guilt phase of the trial. While we affirm the district
court’s denial of habeas relief as to Pope’s guilt-phase ineffectiveness claims, we
vacate the district court’s grant of habeas relief concerning Pope’s penalty-phase
ineffectiveness claims, and remand for the district court to hold an evidentiary
hearing on those claims.
I.
A. The Murders and Pope’s Trial
2
Based on the evidence presented at trial, the Florida Supreme Court recited
the essential facts of the triple homicide in this way:
On January 19, 1981, the bodies of Al Doranz and Caesar Di Russo
were discovered in an apartment rented to Kristine Walters. Both had
been dead several days but Di Russo’s body was in a more advanced
state of decomposition than Doranz’s. Both victims had been shot,
Doranz three times and Di Russo five times. A spent .22 caliber shell
casing was found under Di Russo’s body. Three days later, the body
of Kristine Walters was found floating in a canal. She had been shot
six times with exploding ammunition, her skull was fractured and she
had been thrown into the canal while still breathing.
All three victims had been shot with exploding ammunition, so
ballistics comparison was impossible. However, parts of an AR-7
rifle were found in the canal near Walters’s body and the spent shell
casing under Di Russo’s body had been fired from an AR-7 weapon.
Investigation led to appellant’s girlfriend, Susan Eckard, and
ultimately police were able to show that Doranz purchased an AR-7
rifle for Pope shortly before the murder. Eckard and Pope admitted
being with Doranz and Walters at Walters’s apartment on Friday
night, the night Doranz and Di Russo were killed. Eckard later
testified that Pope had arranged a drug deal with Doranz and Di
Russo. She stated that she and Pope left Walters’s apartment to visit
Clarence “Buddy” Lagle and to pick up some hamburgers. They then
returned to the apartment where Pope and Doranz convinced Walters
to go with Eckard to the apartment where Pope had been staying.
Later that same night, Pope arrived at his apartment and told the
women there had been trouble and that Doranz had been injured but
that it was best for Walters to stay away from him for a while. Eckard
said she knew that Di Russo and Doranz were dead, and that she had
known Pope intended to kill them at this point. The next day, Walters
checked into a nearby motel, where Pope supplied her with quaaludes
and cocaine. On Sunday, Pope told Walters he would take her to see
3
Doranz. Eckard testified that Pope had told her that he knew he had
to get rid of Walters but that he regretted it because he had become
fond of her. According to Eckard, Pope described Walters’s murder
when he returned and said the gun had broken when he beat Walters
over the head with it. The next day Eckard went with Pope to the
scene of the crime to collect fragments of the broken stock and to
look for the missing trigger assembly and receiver.
Buddy Lagle told the police he had made a silencer for the AR-7 rifle
at Pope’s request. Because Lagle planned to leave the jurisdiction to
take a job on a ship in the Virgin Islands, he was deposed on
videotape pursuant to an order granting the state’s motion to
perpetuate testimony. When the state was unable to produce him at
trial, the videotape was admitted into evidence.
Pope v. State, 441 So. 2d 1073, 1074-75 (Fla. 1983). As noted, Pope’s ex-
girlfriend, Susan Eckard,1 testified against him at trial, providing much of the
damaging testimony. Pope also testified, denying that he had killed anyone.
Pope was convicted on three counts of first degree murder for the deaths of
Caesar Di Russo, Albert Preston Doranz, and Kristine A. Walters. After the jury’s
guilty verdict, but before the penalty phase, Pope and his trial counsel2 had this
exchange with the court, outside the jury’s presence:
1
“Eckard” is also spelled “Eckerd,” “Eckert,” and “Eckhart” in various court documents
throughout the lengthy record of this case. We use “Eckard” in our opinion.
2
During the initial pre-trial proceedings in Florida’s Circuit Court for Broward County,
Pope was represented by Douglas McNeil, an attorney with the State Public Defender’s Office.
Prior to trial, McNeil withdrew and the state circuit judge appointed Scott T. Eber as Special
Public Defender to represent Pope for what remained of pre-trial proceedings and for trial.
4
Eber: I have discussed the situation that is presently before us
with Mr. Pope. I have discussed it informally with the
Court. Mr. Pope does not wish me to argue to the jury at
this point. I understand that it is my obligation as his
attorney to do so, however. Mr. Pope feels that it is my
obligation, as his attorney, to follow his wishes in this
situation. I believe he may have something he desires to
say, if the Court would entertain that. But I have told
him, and I believe that it is my obligation to make a
presentation to the jury.
The Court: Alright. If you want to say anything, Mr. Pope, you may.
Pope: I’d really rather not have him make a presentation on my
behalf to the jury. You only have two choices, and I
know what my choice is. I know I’m not trying to take
your job, that is not what I want and is not necessarily
what you are going to give me; but I would rather have
the death sentence than the twenty-five years in prison.
The Court: Alright. I still think you ought to speak on his behalf as
your obligation. You made your wishes known. I can
understand that. Thank you. Bring the jury in.
During closing arguments, the prosecutor informed the jury that “Mr. Pope
has announced that he would rather receive a death penalty than life
imprisonment. I would say to you that your verdict, your recommendation, should
not be based on that.” Notably, defense counsel Eber did not object to this salient
comment. Thereafter, the jury recommended life sentences for the murders of Di
Russo and Doranz, and the death penalty for the murder of Walters. The jury
voted nine to three for death.
5
The trial judge adopted the jury’s sentencing recommendations. In so
doing, the judge found four aggravating circumstances surrounding Walters’s
murder: (1) Pope was previously convicted of another capital felony (the murders
of Di Russo and Dorantz), Fla. Stat. § 921.141(5)(b); (2) the capital felony was
committed for the purpose of avoiding a lawful arrest (for the murders of Di Russo
and Dorantz), id. § 921.141(5)(e); (3) the capital felony was especially heinous,
atrocious, or cruel (in part because Pope failed to show any remorse), id. §
921.141(5)(h); and (4) the capital felony was a homicide committed in a cold,
calculated, and premeditated manner (because Pope spent two days with Walters
before murdering her), id. § 921.141(5)(i). The judge found one mitigating
circumstance, the “catchall” provision, Fla. Stat. § 921.141(6)(h), because Pope
had served in Vietnam and was honorably discharged from the Marines. The trial
judge then sentenced Pope to die.
B. Post-Trial State Court Proceedings
Pope filed a direct appeal to the Florida Supreme Court, arguing, among
other things, that the trial court erred in allowing Lagle’s videotaped deposition to
be presented to the jury. The Florida Supreme Court affirmed the convictions and
sentences. Pope, 441 So. 2d at 1074.
6
Pope’s collateral attack began when he filed in state court a motion for post-
conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming
the ineffective assistance of counsel. The motion raised twelve errors by trial
counsel, including the five guilt-phase ineffectiveness claims before us in this
appeal, as well as two penalty-phase ineffectiveness claims: (1) counsel’s failure
to object to improper comments made by the court and the prosecutor; and (2)
counsel’s failure to present mitigating evidence drawn from Pope’s background.
The trial court held that except for two of his claims, Pope’s allegations were
either insufficient to state a claim for ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), or were specifically refuted by the
record.
As for the two remaining claims, the court rejected the first one --
concerning ineffective assistance stemming from the introduction of Lagle’s
videotaped deposition -- because it found, after conducting an evidentiary hearing
on the issue, that Lagle was indeed unavailable for trial. An evidentiary hearing
was set on the second of Pope’s remaining claims -- that his trial counsel was
ineffective for using the “Vietnam Syndrome Defense” against Pope’s wishes.
After the evidentiary hearing, the court denied this claim too, finding that Pope
knew, understood, and concurred in his trial counsel’s opinion that Dr. William
7
Weitz’s testimony regarding the Vietnam Syndrome Defense should be used
during the guilt phase of the trial.
On appeal to the Florida Supreme Court, Pope argued that the trial court
improperly failed to hold an evidentiary hearing on several claims raised in his
motion for new trial, including the remaining guilt-phase ineffectiveness claims, as
well as the penalty-phase ineffectiveness claims listed above. The Florida
Supreme Court affirmed the trial court’s denial of Pope’s Rule 3.850 motion.
Pope v. State, 569 So. 2d 1241 (Fla. 1990) (per curiam).
During the pendency of the Rule 3.850 motion, Pope filed a petition for writ
of habeas corpus with the Florida Supreme Court alleging ineffectiveness of
appellate counsel. The Florida Supreme Court denied Pope’s petition. Pope v.
Wainwright, 496 So. 2d 798, 800 (Fla. 1986). Of particular relevance for our
purposes, the court agreed with Pope’s claim that the prosecutor had made “clearly
improper” comments during closing argument of the penalty phase, the “most
bothersome” being “the comment on the petitioner’s preference for death.” Id. at
803. Nonetheless, the court held that “in light of the aggravating evidence
presented . . . none [of the comments] are so egregious as to fundamentally
undermine the reliability of the jury’s recommendation.” Id.
8
Following his initial state Rule 3.850 motion and petition for writ of habeas
corpus, Pope filed in state court several other Rule 3.850 motions, several
petitions for writ of habeas corpus, and miscellaneous motions attempting to raise
new claims, and to cure procedurally defaulted claims and exhaust claims that the
federal court subsequently deemed unexhausted. All of these filings were denied
in turn. See, e.g., Pope v. State, 702 So. 2d 221 (Fla. 1997) (per curiam), reh’g
denied (Fla. 1998).
C. Federal Post-Conviction Proceedings
On September 9, 1991, Pope sought collateral relief in the United States
District Court for the Southern District of Florida, filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Pope raised seven claims, some with
multiple sub-claims, resulting in 61 claims in all. Most significantly for our
purposes, Claim II alleged the ineffective assistance of penalty-phase counsel.
The State argued failure to exhaust as a defense to this claim and others; the
district court agreed, dismissing without prejudice Pope’s petition because it
“contain[ed] both exhausted and unexhausted claims.” Notably, the district court
did not find Claim II unexhausted. Once the district court entered its order, the
Clerk of Court entered a notation on the docket sheet characterizing the case as
“closed.”
9
Following litigation in state court to exhaust the unexhausted claims, Pope
returned to federal district court and amended his federal habeas corpus petition on
February 19, 1999. Along with his amended petition, Pope moved to “reopen
proceedings.” Claim II as developed in the amended petition was nearly identical
to Claim II in Pope’s original 1991 petition. The State again argued that Claim II
was unexhausted. The district court rejected that defense, and ordered the State to
respond on the merits to this claim. Thereafter, in July 2000, the State argued in a
supplemental response to Pope’s amended petition that the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. 104-132, 100 Stat. 1214 (1996)
(“AEDPA”), applied to the case. Pope replied that the State had waived its
AEDPA argument because it did not mention AEDPA in its prior answer to Pope’s
amended petition.
Also significant for our purposes, Pope sought an evidentiary hearing from
the district court on all of his claims. The motion was denied and no hearing was
conducted. Without resolving whether AEDPA applied to his petition, the district
court relied on the “arguably less stringent” pre-AEDPA law to deny the request
for an evidentiary hearing, because Pope had obtained a hearing in state court on
“certain of the issues he presented, including ineffectiveness of trial counsel,”
presumably referring to the state court hearings on the introduction of the Lagle
10
deposition and the use of the Vietnam Syndrome Defense during the guilt phase of
the trial.
After various state and federal court filings, and after the Florida Supreme
Court denied Pope’s third state habeas corpus petition, Pope’s federal petition for
writ of habeas corpus now consisted of eight claims (comprised of 23 sub-claims),
including ineffective assistance of counsel at the guilt and penalty phases of the
trial. In September 2006, the State filed a second supplemental response to Pope’s
amended petition, and, this time, among other things, “withdr[ew] its suggestion
that [AEDPA] applies.”
In 2008, the district court ruled on the merits of Pope’s federal petition for
writ of habeas corpus. The district court granted the petition in part -- regarding
Pope’s claim that he received ineffective assistance of counsel at sentencing -- and
rejected all of the remaining claims. In so doing, the district court first determined
that AEDPA did not apply to Pope’s petition, because his original petition had
been filed on September 9, 1991, before the effective date of AEDPA. The court
denied Pope’s seven guilt-phase ineffective assistance claims, finding generally
that he could not satisfy Strickland.
As for Pope’s penalty-phase ineffective assistance claims, however, the
district court concluded that counsel’s failure to discover and present any of the
11
ample available mitigation evidence fell below any objective standard of
reasonable representation. It reached this conclusion even though Pope had told
the trial court and his counsel that he did not want to present any mitigating
evidence to the jury, likening Pope’s case to Blanco v. Singletary, 943 F.2d 1477
(11th Cir. 1991). The district court further determined that counsel’s failure to
object to the prosecutor’s comment about Pope’s stated preference for death over
life imprisonment also fell below any objective standard of reasonableness. Given
the combination of factors surrounding sentencing (including counsel’s failure to
present mitigating evidence, counsel’s failure to object to the prosecutor’s
statement that Pope preferred to die, and three of the jurors’ votes for a life
sentence), the court concluded that there was a reasonable probability that but for
counsel’s errors Pope’s jury would have returned a recommendation of life
imprisonment.
The State moved to alter or amend the judgment, arguing this time, among
other things, that AEDPA should apply to Pope’s petition. In ruling on the
motion, the district court declined to determine whether the State had waived its
AEDPA argument, because, it concluded, the result would remain the same
regardless of whether pre-AEDPA or post-AEDPA standards applied. This timely
appeal followed.
12
II.
First, we turn to the standard of review. Which standard of review we apply
depends, at least initially, on whether AEDPA governs Pope’s habeas petition,
which in turn depends on when Pope’s petition is said to have been filed. This is
because AEDPA only applies to federal habeas petitions filed after April 24, 1996.
See Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998) (per
curiam). As we have detailed, Pope’s original habeas petition was filed in 1991,
but the petition the district court ultimately ruled on was filed in 1999, because
Pope’s original application had been dismissed without prejudice to allow for the
exhaustion of certain claims in state court. Over the years, the State’s arguments
concerning whether AEDPA applies to Pope’s petition have been inconsistent at
best. Thus, in response to Pope’s 1999 amended petition, the State argued for the
application of AEDPA, but it withdrew that argument in 2006. After the district
court ultimately ruled on Pope’s petition in 2008, however, the State revived the
issue in a motion to alter or amend the judgment, and in its appeal to this Court,
the State continues to maintain that AEDPA applies.
Even if the State has waived the argument that AEDPA applies to Pope’s
petition (and we observe that the district court made no such finding), we would
nonetheless feel constrained to address it now. We have said that “a circuit court
13
of appeals has the power -- even in the habeas corpus context -- to consider sua
sponte issues that a [party] fails to preserve either in the district court or on
appeal.” Thomas v. Crosby, 371 F.3d 782, 801 (11th Cir. 2004). In Thomas, we
found that we could consider an issue sua sponte if it raises “a sufficiently
important federal issue” or “when it can fairly be characterized as a ‘threshold’
matter to another question properly before it.” Id. Moreover, while we “generally
will not consider an issue or theory that was not raised in the district court,” FDIC
v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993), we have allowed for an
exception to this rule when, inter alia, “the proper resolution [of the issue] is
beyond any doubt,” Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355,
360-61 (11th Cir. 1984) (quotation omitted).
In this appeal, we address the AEDPA question -- even if the State did not
properly raise it -- because plainly, it is an important federal issue, raises a
threshold question crucial to our analysis, and most importantly, yields a clear
answer.3 Indeed, it is undeniable that AEDPA applies here, and Pope has raised
no plausible argument to the contrary.
3
As the Fourth Circuit has held, “Congress clearly intended the standard of review of the
AEDPA to apply to habeas petitions filed after its enactment, . . . and we will not hold that the
appropriate standard of review is waived just because the parties did not realize what that
standard was.” Diaz v. Moore, Nos. 97-6586, 97-6604, 1998 WL 112526, at *2 n.6 (4th Cir.
Mar. 16, 1998) (unpublished).
14
As we’ve explained, Pope’s 1991 federal habeas petition was dismissed
without prejudice on non-exhaustion grounds in 1994, and the case was then
officially deemed “closed” by the Clerk of Court. When Pope returned to federal
court in 1999, he filed an amended habeas corpus petition, along with a motion to
“reopen proceedings.” In circumstances almost identical to this one -- where a
petition filed before April 1996 was dismissed without prejudice for non-
exhaustion or on other procedural grounds and the petitioner filed an amended
petition after April 1996 -- at least six other Circuits have concluded that AEDPA
applies. See Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir. 2001)
(“[AEDPA] applies even when a prisoner’s original petition was filed prior to
AEDPA’s effective date and dismissed without prejudice for failure to exhaust
state remedies.”); Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir. 2000)
(AEDPA governs “a federal habeas corpus petition filed after [its] effective date . .
. where the petitioner’s previous federal petition was filed before the effective date
of AEDPA and was dismissed without prejudice for failure to exhaust state
remedies.”); Sanchez v. Gilmore, 189 F.3d 619, 622-23 (7th Cir. 1999) (“[A]
second petition [was] filed in 1997, and that is the year which controls whether
AEDPA applies. It applies; he cannot move the date to pre-AEDPA times by
relying on his old unexhausted petition.”); Taylor v. Lee, 186 F.3d 557, 560 (4th
15
Cir. 1999) (“Since [Taylor] filed his second petition . . . well after the signing of
the AEDPA . . . , the AEDPA applies in this case.”); Mancuso v. Herbert, 166 F.3d
97, 101 (2d Cir. 1999) (“[T]he AEDPA applies to a habeas petition filed after the
AEDPA’s effective date, regardless of when the petitioner filed his or her initial
habeas petition and regardless of the grounds for dismissal of such earlier
petition.”).
This result is consistent with our prior precedent in the non-AEDPA
context, which has noted that “[w]here the trial court allows the plaintiff to dismiss
his action without prejudice, . . . . the plaintiff has acquired that which he sought,
the dismissal of his action and the right to bring a later suit on the same cause of
action, without adjudication of the merits. The effect of this type of dismissal is to
put the plaintiff in a legal position as if he had never brought the first suit.”
LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976) (quotation
omitted).4 Here, because Pope sought to have his initial petition dismissed without
prejudice and the case was closed by the district court, Pope filed his 1999 petition
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all rulings of the former Fifth Circuit issued prior to October 1,
1981. The new Fifth Circuit has since recognized in the AEDPA context that “there is no general
consensus that dismissing a federal habeas application for non-exhaustion is the equivalent of
holding it in abeyance pending exhaustion.” Graham v. Johnson, 168 F.3d 762, 779 (5th Cir.
1999).
16
anew, just as though the earlier petition had never existed. Accordingly, his 1999
petition is the operative one, and AEDPA applies.5
In reaching this conclusion, we are unpersuaded by Pope’s argument that
AEDPA should not apply because, just like in Roper v. Weaver, 550 U.S. 598
(2007) (per curiam), actions of the district court and the State contributed to the
filing of Pope’s amended petition after AEDPA’s effective date. Not only does the
record fail to show that Pope would have filed his amended petition before
AEDPA’s 1996 enactment had the district court and the State acted more quickly,
but also, this case is not akin to Roper, where the district court erroneously
dismissed a petition for non-exhaustion. Here, there was no similar error.
5
None of the cases Pope cites to are on point. In Allen v. United States, 175 F.3d 560,
562 (7th Cir. 1999), the Seventh Circuit determined that AEDPA did not apply to a 1997
petition, but there, it found that the 1997 petition was not a “new petition” filed after AEDPA;
rather, the district court had dismissed an initial petition without prejudice (notably, not on
exhaustion grounds) and set a date for an amended petition to be filed. The petitioner missed that
deadline, but ultimately the district court granted the petitioner’s request to file the amended
petition instanter, “thus excusing the petition’s tardiness.” Id. Furthermore, the district court
specifically found that “[t]hough eighteen months elapsed between the time Allen filed his
original Section 2255 motion and the time he filed his amended motion, [Allen’s] action was
‘pending’ at the time the AEDPA was enacted.” Id. Thus, Allen did not involve a situation, like
this one, where the case was closed and then reopened. And in Fuller v. Johnson, 158 F.3d 903,
905 (5th Cir. 1998), the petitioner’s first pre-AEDPA petition was never dismissed at all, but he
was allowed to file a post-AEDPA amendment.
Slack v. McDaniel, 529 U.S. 473, 478 (2000), also dealt with a different issue -- that a
habeas petition filed “after an initial petition was dismissed without adjudication on the merits
for failure to exhaust state remedies is not a ‘second or successive’ petition as that term is
understood in the habeas corpus context.” In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997) (per
curiam), also dealt with the second or successive issue. And in Zarzela v. Artuz, 254 F.3d 374
(2d Cir. 2001), a timeliness case, AEDPA’s applicability was undisputed.
17
In short, we conclude that Pope filed his operative federal habeas petition
after April 24, 1996, and, therefore, that Section 2254(d) of AEDPA governs this
proceeding. See Wilcox, 158 F.3d at 1210. Thus, a federal court may grant Pope
habeas relief only if the state court decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or was (2) “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).
A state court decision is “contrary to” clearly established law if the court
arrived at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court confronted facts that are “materially
indistinguishable” from relevant Supreme Court precedent but arrived at a
different result. Williams v. Taylor, 529 U.S. 362, 405 (2000) (“Terry Williams”).
A state court decision is an “unreasonable application” of clearly established law
if the state court unreasonably extends or fails to extend a clearly established legal
principle to a new context. Jennings v. McDonough, 490 F.3d 1230, 1236 (11th
Cir. 2007). A state court’s factual findings are presumed correct unless rebutted
by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
“This presumption of correctness applies equally to factual determinations made
18
by state trial and appellate courts.” Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir.
2003) (citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
We review de novo whether a district court properly ruled on a procedural
bar question. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir.
2004). Finally, we review for abuse of discretion a district court’s decision to
deny an evidentiary hearing. Hall v. Head, 310 F.3d 683, 690 (11th Cir. 2002).
III.
Pope’s penalty-phase ineffectiveness argument has two components. First,
the petitioner has argued that his trial counsel was ineffective because of counsel’s
alleged failure to conduct a reasonable investigation into Pope’s life in order to
find mitigating evidence to present during the penalty phase. Pope also claims
that his counsel’s “failure to object to prosecutorial misconduct an[d] improper
argument” rendered the penalty-phase proceedings fundamentally unfair, resulting
in the ineffective assistance of counsel.
It is by now axiomatic that to succeed on a claim of ineffective assistance,
Pope must show both deficient performance and prejudice: that is, he must show
(1) that “counsel’s representation fell below an objective standard of
reasonableness,” and (2) that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
19
different.” Strickland, 466 U.S. at 688, 694; accord Wiggins v. Smith, 539 U.S.
510, 521, 534 (2003); Terry Williams, 529 U.S. at 390-91; Darden v. Wainwright,
477 U.S. 168, 184 (1986). Because a petitioner’s failure to establish either
deficient performance or prejudice is fatal to a Strickland claim, we need not
address both Strickland prongs if the petitioner fails to satisfy either one of them.
See Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (per
curiam).
Federal habeas review of a petitioner’s claim is typically precluded when
the petitioner procedurally defaulted on or failed to exhaust the claim in state
court. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). Procedural bar occurs
when a petitioner’s failure to comply with state procedures provides an
“independent and adequate” basis for the state court’s decision. A failure to
exhaust occurs, in turn, when a petitioner has not “fairly present[ed]” every issue
raised in his federal petition to the state’s highest court, either on direct appeal or
on collateral review. Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per
curiam) (quotation omitted).
A. Procedural Bar
20
To begin, the State claims that we should reject Pope’s failure-to-mitigate
and failure-to-object claims outright because the state courts found them to be
procedurally barred under Florida law. We are unpersuaded.
In determining how the state courts treated Pope’s claims, we look to the
Florida Supreme Court’s denial of the claims, because it is “the last state court
rendering a judgment in the case.” Harris v. Reed, 489 U.S. 255, 263 (1989). The
Florida Supreme Court’s decision is unilluminating, however, since it is not easy
to discern whether the state court rejected Pope’s claims under Florida Rule 3.850
because they were legally insufficient on their face, or because they were refuted
by the record -- what we typically think of as a “merits” ruling.6 The Florida
Supreme Court upheld the trial court’s summary denial of all of Pope’s penalty-
phase ineffectiveness claims -- including both the failure-to-mitigate and the
6
As the Florida Supreme Court has explained:
[R]ule 3.850 distinguishes between claims that are facially insufficient and those
that are facially sufficient but are also conclusively refuted by the record. A
determination of facial sufficiency will rest upon an examination of the face, or
contents, of the postconviction motion. Because the determination of facial
sufficiency under rule 3.850 is one of law and involves an evaluation of the legal
sufficiency of the claim alleged, the evidence in the record will ordinarily be
irrelevant to such an evaluation. The examination of the record will ordinarily
come only after a claim is found to be facially sufficient, and the purpose of that
examination will be solely to determine whether the record conclusively refutes
the claim.
Jacobs v. State, 880 So. 2d 548, 551 (Fla. 2004) (per curiam).
21
failure-to-object claims -- saying that “[w]e have reviewed the motions, files, and
records in this case and agree with the trial court that they conclusively
demonstrate that Pope is entitled to no relief in connection with the above claims.”
Pope, 569 So. 2d at 1245.7 If anything, the Florida Supreme Court’s statement that
it had reviewed the case’s files and records suggests that it had rejected all of
Pope’s claims on the merits. Moreover, the State’s brief before the Florida
Supreme Court had argued that the claims were both facially insufficient and
refuted by the record.
But even assuming that the state court rejected Pope’s claims on facial
insufficiency grounds, that does not mean that the state court found Pope’s claims
7
The trial court’s summary denial of Pope’s claims is also unilluminating. Rather than
resolving Pope’s claims individually, the trial court, like the Florida Supreme Court, lumped
together several guilt- and penalty-phase ineffectiveness claims, and held:
[T]he Court is of the opinion that the allegations maintained by the Defendant . . .
are either insufficiently stated in light of Strickland v. Washington, 466 U.S. 668
(1984), or are specifically refuted by the entirety of the transcript before this Court
. . . . The Court notes that the abundant evidence against the Defendant, together
with the remainder of the transcript which reflects a very effective defense on
behalf of the Defendant by his trial counsel, refute both the specific allegations
that counsel’s conduct was below the standard required in Strickland, as well as
the “prejudice” necessary to establish such claims.
Because the trial court did not specify which claims it found to be deficient or which ones it
found to be refuted by the record, and because the State’s brief to the trial court argued both
grounds for denying these claims, we cannot determine which ruling applied to which claims.
Rather, the trial court expounded -- however briefly -- on the fact that the record refuted both
prongs of Strickland, lending support to the view that it was actually rejecting all of Pope’s
claims in light of the record.
22
to be procedurally barred. We have recently held that an Alabama state court’s
summary dismissal of a petitioner’s post-conviction claims -- for failure to plead
facts with sufficient specificity -- did not apply a procedural bar to dismiss the
claims, which were therefore subject to AEDPA review. Borden v. Allen, 646
F.3d 785, 810-13 (11th Cir. 2011). In so doing, we noted that “[t]he dismissal of a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6), for example,
unambiguously constitutes a ruling ‘on the merits.’” Id. at 812. And similar to
Federal Rule of Civil Procedure 8(a)(2), which requires “a short and plain
statement of the claim showing that [he] is entitled to relief,” Florida Rule of
Criminal Procedure 3.850(c)(6) simply requires “a brief statement of the facts (and
other conditions) relied on in support of the motion.” Thus, just as under our
federal procedural rules, a Florida state court’s dismissal of a post-conviction
claim for facial insufficiency constitutes -- at least for purposes of the procedural
default analysis -- a ruling “on the merits” that is not barred from our review.8 In
8
Likewise, in Griffin v. Wainwright, 760 F.2d 1505, 1518 (11th Cir. 1985) (per curiam)
(“Griffin I”), vacated on other grounds, 476 U.S. 1112 (1986), reaff’d sub nom., Griffin v.
Dugger, 874 F.2d 1397 (11th Cir. 1989) (per curiam) (“Griffin II”), a Florida court had denied
post-conviction relief without an evidentiary hearing on a petitioner’s claim that the death
penalty was unconstitutionally imposed, concluding that the claim was “insufficient on its face to
state a claim for relief.” Id. at 1518 (quoting Griffin v. State, 447 So. 2d 875, 876 (Fla. 1984)).
We found that “this is an exhausted claim,” and was not otherwise precluded from our review.
Id. Griffin I was vacated and remanded by the Supreme Court for further consideration in light
of Cabana v. Bullock, 474 U.S. 376 (1986), which requires a finding of petitioner’s culpability
for imposition of the death penalty. On remand, we found that the Florida courts had satisfied
23
short, whether the Florida Supreme Court rejected the claims for facial
insufficiency or only after concluding that they were refuted by the record, the
determination would have been on the merits.
B. Exhaustion
The State also presses us to reject Pope’s failure-to-mitigate claim as
unexhausted because he impermissibly expanded this claim when he raised it on
federal habeas review. Once again, we are unpersuaded.
The exhaustion requirement is satisfied when a habeas petitioner presents
the federal claim to the appropriate state court, thereby “afford[ing] the state courts
a meaningful opportunity to consider [the] allegations of legal error.” Vasquez v.
Hillery, 474 U.S. 254, 257 (1986). The Supreme Court has instructed us that if
“the substance of a federal habeas corpus claim [was] first . . . presented to the
state courts,” “despite variations in the . . . factual allegations urged in its
support,” the claim is exhausted. Picard v. Connor, 404 U.S. 270, 277-78 (1971).
Based on Supreme Court law, we have held that “courts should exercise
flexibility in determining whether defendants have met [the exhaustion]
Cabana in this case, and also addressed an issue under McCleskey v. Kemp, 481 U.S. 279
(1987), finding that Griffin’s death sentence was not unconstitutionally based on the race of his
victims. Griffin II, 874 F.2d at 1399, 1401-02. By resolving the McClesky issue, we addressed
Griffin’s claim on the merits, which means that we continued to abide by our conclusion in
Griffin I that we were not precluded from hearing the claim.
24
requirement.” Cummings v. Dugger, 862 F.2d 1504, 1507 (11th Cir. 1989); see
also Henry v. Dep’t of Corr., 197 F.3d 1361, 1367 (11th Cir. 1999) (“The exact
presentation of the claims in the state and federal courts may vary some.”). In
other words, an issue is exhausted if “the reasonable reader would understand [the]
claim’s particular legal basis and specific factual foundation” to be the same as it
was presented in state court. Kelley, 377 F.3d at 1344-45. We have said in the
ineffectiveness context:
[A] general allegation of ineffective assistance or a specific allegation
of ineffective assistance [made in state court] wholly unrelated to the
ground on which the claim ultimately depends [in federal court] will
[not] immunize a petitioner from a finding of procedural default.
Ogle v. Johnson, 488 F.3d 1364, 1369 (11th Cir. 2007) (emphasis added).
Here, the failure-to-mitigate-at-sentencing claim as pled in Pope’s federal
habeas petition raised the exact same legal issue that was presented to the state
court -- that but for the complete absence of any investigation and presentation of
mitigation evidence, there is a reasonable probability that the result of Pope’s
sentencing proceeding would have been different. Specifically, Pope argued on
December 30, 1986 in his Rule 3.850 motion for post-conviction relief that trial
counsel “failed to present any evidence of mitigating circumstances during the
penalty phase of defendant’s trial other than the standard plea of mercy from the
25
defendant’s mother,” and “did little or nothing to develop evidence of such
mitigating factors such as defendant’s psychological history, performance in the
military, or his capacity for rehabilitation.” In his federal petition, Pope’s
allegations center around his abused and impoverished childhood, his positive
personality traits, his mental health issues, and his honorable military service in a
combat zone. While his federal petition certainly expanded on the topics raised
earlier in state court, we cannot ignore that they involve the same issues raised
there -- his psychological history, his performance in the military, and his capacity
for rehabilitation -- in the context of an ineffective assistance of counsel claim.
The federal question was thus “plainly defined,” Kelley, 377 F.3d at 1345, so that
the state courts and the State were made fully aware of Pope’s ineffectiveness
claim, “despite variations in the . . . factual allegations urged in its support,”
Picard, 404 U.S. at 277.9 We, therefore, conclude that the district court did not err
9
As for the State’s claim that Pope’s state court post-conviction pleading left the state
court to speculate about whether Pope wanted positive or negative aspects of his life to be
presented -- i.e., whether he was abused as a child or grew up in a loving family with many
friends, was honorably or dishonorably discharged, was a decorated veteran or one who was
stationed away from the action, had a mental disease, was mentally retarded, or had a high IQ --
that argument is without merit. The record from the trial touches on enough of these issues to
have made it clear to the state post-conviction court what Pope intended to show -- for example,
he testified at trial that he was honorably discharged and had some involvement with action
during combat, and an expert testified that Pope suffered from post-traumatic stress disorder.
Thus, Pope’s allegations were not so “speculative” as to have left the state post-conviction court
without any idea as to what he would have shown.
26
in thrice rejecting the State’s argument that Pope’s failure-to-mitigate claim was
unexhausted.
IV.
Having concluded that Pope’s penalty-phase claims are properly before us,
we turn to the merits. The procedural history surrounding these claims is tortured.
As we explain below, although Pope consistently sought an evidentiary hearing in
state court to develop his penalty-phase claims, no hearing was ever held. Even
the federal district court denied his request for an evidentiary hearing to develop
these claims, albeit under pre-AEDPA law, on the ground that Pope had already
participated in two state-court hearings. But these hearings barely touched on his
counsel’s performance during the penalty phase.10 The record, therefore, leaves us
10
Pope’s trial counsel, Eber, never testified at any state evidentiary hearing, although he
did submit to an uncompleted deposition, in which his preparation for the penalty phase of the
trial was broached only in the following brief exchange:
Q: Do you recall doing any investigation about any mitigating factors?
A: Specifically, no.
Q: Did you ever talk with his mother, for instance?
A: I don’t recall.
Q: Did you ever talk with any members of the family?
A: I don’t recall.
Q: Did you ever find out about his childhood?
27
with Pope’s untested penalty-phase allegations, and little, if anything else to
consider. In the face of this procedural history, together with the substance of the
claims, we are compelled to conclude that the district court erred in granting
habeas relief on this barren record, and moreover, abused its discretion in denying
Pope an evidentiary hearing to develop his claims. We, therefore, vacate the
district court’s decision, and remand the case with instructions for the district
court to hold an evidentiary hearing.
AEDPA prohibits the district court from holding an evidentiary hearing “[i]f
the applicant has failed to develop the factual basis of a claim in State court
proceedings” unless certain circumstances are shown. 28 U.S.C. § 2254(e)(2).11
A: I do not recall.
11
Section 2254(e)(2) provides in full:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that --
(A) the claim relies on --
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
28
However, “[b]y the terms of its opening clause the statute applies only to prisoners
who have ‘failed to develop the factual basis of a claim in State court
proceedings.’” Williams v. Taylor, 529 U.S. 420, 430 (2000) (“Michael
Williams”) (quoting 28 U.S.C. § 2254(e)(2)). The Supreme Court has held,
however, that in the context of this section, “failed to develop” connotes fault on
the part of the petitioner. Id. at 431-32 (“‘[F]ail’ connotes some omission, fault, or
negligence on the part of the person who has failed to do something. . . . [A]
person is not at fault when his diligent efforts to perform an act are thwarted, for
example, by the conduct of another or by happenstance.”). Therefore, “[u]nder the
opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is
not established unless there is lack of diligence, or some greater fault, attributable
to the prisoner or the prisoner’s counsel.” Id. at 432. “[A] petitioner cannot be
said to have ‘failed to develop’ relevant facts if he diligently sought, but was
denied, the opportunity to present evidence at each stage of his state proceedings.”
Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir. 2002). After all, while AEDPA
promotes principles of comity, “comity is not served by saying a prisoner ‘has
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
29
failed to develop the factual basis of a claim’ where he was unable to develop his
claim in state court despite diligent effort.” Michael Williams, 529 U.S. at 437.
A. Diligence
Diligence “for purposes of the opening clause [of § 2254(e)(2)] depends
upon whether the prisoner made a reasonable attempt, in light of information
available at the time, to investigate and pursue claims in state court.” Crawford v.
Head, 311 F.3d 1288, 1329 (11th Cir. 2002) (quoting Michael Williams, 529 U.S.
at 435). “Diligence will require in the usual case that the prisoner, at a minimum,
seek an evidentiary hearing in state court in the manner prescribed by state law.”
Michael Williams, 529 U.S. at 437.
In general, our precedent says that when a petitioner requested an
evidentiary hearing at every appropriate stage in state court and was denied a
hearing on the claim entirely, the petitioner has satisfied the diligence requirement
for purposes of avoiding Section 2254(e)(2). See Valle v. Sec’y for Dep’t of
Corr., 459 F.3d 1206, 1216 (11th Cir. 2006) (diligence requirement satisfied
where petitioner “attempted to secure an evidentiary hearing in the state courts” on
his equal protection and due process claims); Breedlove, 279 F.3d at 960
(diligence requirement satisfied where petitioner “sought an evidentiary hearing
on [the relevant claim] at every stage of his state proceedings” yet “[t]he state
30
courts denied him the opportunity to present evidence related to [the] claim”). By
contrast, where a petitioner was granted an evidentiary hearing or other means of
presenting evidence to the state court on the particular claim, and the petitioner
failed to take full advantage of that hearing, despite being on notice of and having
access to the potential evidence and having sufficient time to prepare for the
hearing, that petitioner did not exercise diligence in developing the factual
foundation of his claim in state court.12
12
See, e.g., Ward, 592 F.3d at 1160 (district court’s finding that petitioner failed to
exercise diligence was not clear error, where petitioner was granted state court evidentiary
hearing and “was afforded approximately three years to secure affidavits and witness testimony
prior to” the hearing but failed to submit relevant evidence, despite the fact that he “managed to
submit numerous exhibits and affidavits during the course of his hearings”); Chandler v.
McDonough, 471 F.3d 1360, 1362 (11th Cir. 2006) (per curiam) (petitioner failed to exercise
diligence in developing other evidence of claim, where petitioner “was given an evidentiary
hearing on the claim in state court” and petitioner “also proffered in the state collateral
proceeding a 195-page report in two parts by his expert on the issue”); Arthur v. Allen, 452 F.3d
1234, 1248 (11th Cir. 2006) (petitioner failed to exercise diligence where “[h]e failed to pursue
the testing of the requested crime-related physical evidence during his three trials or through a
state postconviction relief petition”); McNair v. Campbell, 416 F.3d 1291, 1298-1300 (11th Cir.
2005) (petitioner failed to exercise diligence where state court granted a hearing but denied his
belated requests for expert funds because those requests were untimely, he could have developed
evidence in less costly ways but did not, and he did not pursue the argument on state collateral
appeal); Hall, 310 F.3d at 697-98 (district court’s finding that petitioner failed to exercise
diligence was not clear error where state habeas court conducted a full-day evidentiary hearing, at
which an expert “gave extensive testimony speculating about the kinds of psychological
problems that afflict Hall,” and petitioner’s trial counsel “gave extensive testimony about their
representation of Hall,” and petitioner’s state habeas counsel “had eight months to prepare and
failed to ask the court for access for psychological testing until four days before the hearing”);
Isaacs v. Head, 300 F.3d 1232, 1249-50 (11th Cir. 2002) (district court’s finding that petitioner
failed to exercise diligence was not clear error where petitioner was aware of evidentiary issue,
and could have developed, but did not, the factual record on at least three separate occasions on
which he was granted the opportunity to present evidence to the state court).
31
Here, Pope exercised diligence in attempting to develop the factual basis of
his penalty-phase claims before the state court. As the record amply shows, Pope
requested an evidentiary hearing on these claims at every appropriate stage of the
state court collateral proceeding. First, in the state trial court, Pope raised his
ineffectiveness claims, as well as his request for an evidentiary hearing, as
required by the rule applicable at the time Pope filed his Rule 3.850 motion. To
plead a colorable claim for ineffective assistance of counsel, the Rule 3.850
movant must allege, in a “brief statement,” facts that would establish that
counsel’s performance was deficient, and that this deficient performance caused
prejudice to the defendant. Spera v. State, 971 So. 2d 754, 757-58 (Fla. 2007)
(citing Strickland, 466 U.S. at 687, 694).
The Florida Supreme Court has further explained:
A defendant may not simply file a motion for postconviction relief
containing conclusory allegations that his or her trial counsel was
ineffective and then expect to receive an evidentiary hearing. The
defendant must allege specific facts that, when considering the
totality of the circumstances, are not conclusively rebutted by the
record and that demonstrate a deficiency on the part of counsel which
is detrimental to the defendant.
Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989) (per curiam). However, “[t]he
strong language of the criminal rule that the motion or record must ‘conclusively
show that the prisoner is entitled to no relief’ mandates that the trial court avoid
32
summarily denying relief without a hearing” so long as the motion “presents a
colorable claim for relief.” Thames v. State, 454 So. 2d 1061, 1065 (Fla. Dist. Ct.
App. 1984) (per curiam) (quoting Fla. R. Crim. P. 3.850(d)); see also Gaskin v.
State, 737 So. 2d 509, 516 & n.17 (Fla. 1999) (“[A]n evidentiary hearing is
presumed necessary absent a conclusive demonstration that the defendant is
entitled to no relief. . . . [W]e strongly urge trial courts to err on the side of
granting evidentiary hearings in cases involving initial claims for ineffective
assistance of counsel in capital cases.”), receded from on other grounds, Nelson v.
State, 875 So. 2d 579 (Fla.2004).
As for the deficient performance prong of Pope’s penalty-phase Strickland
claims, Pope’s Rule 3.850 motion argued that “Eber failed to present any evidence
of mitigating circumstances during the penalty phase of defendant’s trial other
than the standard plea of mercy from the defendant’s mother,” and that “Eber did
little or nothing to develop evidence of such mitigating factors such as defendant’s
psychological history, performance in the military, or his capacity for
rehabilitation.” (Emphases added). Petitioner’s motion also alleged that the
prosecutor “made prejudicial and improper comments” -- including telling the jury
that Pope “had expressed a preference for the death penalty -- even though that
preference had been voiced outside the presence of the jury and was wholly
33
irrelevant to any issue before them,” but “Eber improperly chose not to voice any
objection.” As for prejudice, Pope alleged that Eber’s “failure to present any other
mitigating circumstances increased the likelihood that the jury would return an
advisory sentence of death. . . . But for this failure of proof, there is a reasonable
probability that the jury would have recommended life for the killing of Walters.”
And, Pope said, “[t]he failure of Eber to object to these . . . prosecutorial
comments . . . prejudiced defendant and deprived him of the fair and impartial trial
guaranteed him by the Federal and State Constitutions.”
While these allegations are surely brief, they are more than merely
conclusory, see Kennedy, 547 So. 2d at 913, and they sufficiently made Pope’s
case for an evidentiary hearing. Indeed, given Pope’s allegations that trial counsel
failed to proffer any mitigating evidence at the penalty phase, aside from
testimony from Pope’s mother, or to make any objection to the prosecutor’s stark
comment that Pope preferred to die, it is very hard to say that the record
conclusively refuted Pope’s claim.
What’s more, the state trial court never held that Pope’s penalty-phase
claims failed to meet the evidentiary hearing requirements of Rule 3.850. Rather,
its ruling suggests otherwise. In order for a court to deny claims because they
were “conclusively” refuted by the record, the Florida rule directs the court to
34
attach to its order “a copy of that portion of the files and records that conclusively
shows that the movant is entitled to no relief.” Fla. R. Crim. P. 3.850(d). Florida
courts have found that the propriety of such a denial can only be determined by
reference to those record excerpts that were actually attached. See Muniz v. State,
18 So. 3d 1140, 1141-42 (Fla. Dist. Ct. App. 2009) (per curiam); Thames, 454 So.
2d at 1065-66. Since Pope’s trial court attached no record excerpts -- much less
any that “positively refuted” the claim, Connor v. State, 979 So. 2d 852, 868 (Fla.
2007) (per curiam) -- we cannot conclude that the state trial court denied Pope
Rule 3.850 relief on this basis.
Moreover, to the extent it could be argued that the state trial court denied
Pope’s claim because it was facially insufficient, the court’s very order
undermines this possibility. “A determination of facial sufficiency . . . rest[s]
[only] upon an examination of the face . . . of the postconviction motion. . . . [T]he
evidence in the record will ordinarily be irrelevant to such an evaluation.” Spera,
971 So. 2d at 758 (emphasis omitted) (quotation omitted). Yet, the state court, in
denying Pope’s claims, relied on “the abundant evidence against the Defendant,
together with the remainder of the transcript which reflects a very effective
defense on behalf of the Defendant.” Undeniably, this ruling went beyond the
face of Pope’s motion.
35
Pope again raised his ineffectiveness arguments on appeal to the Florida
Supreme Court and again requested an evidentiary hearing on his claims, but he
was denied a hearing once more. Pope, 569 So. 2d at 1245. Like the state trial
court, the Florida Supreme Court neither attached record excerpts nor constrained
its analysis to the face of Pope’s motion. Instead, the court explained that it had
“reviewed the motions, files, and records in this case and agree[d] with the trial
court that they conclusively demonstrate that Pope is entitled to no relief in
connection with the above claims.” Id.
Based on thorough review of the record, as well as the state courts’
treatment of Pope’s claims, we cannot fairly say that Pope did not properly pursue
an evidentiary hearing at each stage of his state court proceedings. In the face of
his repeated efforts to obtain an evidentiary hearing, we conclude that Pope
exercised diligence in attempting to develop the factual basis of his claims in the
state courts. See Valle, 459 F.3d at 1216; Breedlove, 279 F.3d at 960.
B. The Substance of Pope’s Allegations
Once a petitioner has established diligence, a federal court may grant an
evidentiary hearing without regard to the strictures of 28 U.S.C. § 2254(e)(2), but
only if the petitioner has “proffer[ed] evidence that, if true, would entitle him to
relief.” Hill v. Moore, 175 F.3d 915, 922 (11th Cir. 1999); accord Schriro v.
36
Landrigan, 550 U.S. 465, 474 (2007) (“In deciding whether to grant an evidentiary
hearing, a federal court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true, would entitle
the applicant to federal habeas relief.”).
In the federal district court, Pope has proffered the following substantial
body of evidence that he would develop if granted an evidentiary hearing. As for
Strickland performance, Pope has alleged, inter alia, that his trial counsel, Eber,
did no penalty-phase mitigation investigation whatsoever, even though Eber knew,
among other things, that Pope suffered from post-traumatic stress disorder
(“PTSD”) and heavy drug abuse. We recognize that Pope had instructed Eber not
to present mitigating evidence, and that a mentally competent defendant’s
instruction not to investigate or not to present mitigating evidence may make
counsel’s decision not to do so reasonable. See, e.g., Cummings v. Sec’y for
Dep’t of Corr., 588 F.3d 1331, 1356-59 (11th Cir. 2009) (collecting cases).
Notably, however, we have previously found counsel’s performance deficient
where he acceded to his client’s instructions not to investigate or present
mitigating evidence despite his belief that his client had mental health issues.
Thompson v. Wainwright, 787 F.2d 1447, 1451-52 (11th Cir. 1986); see also
Blanco, 943 F.2d at 1500-03 (deeming counsel’s failure to investigate to be
37
deficient performance when counsel conducted no pretrial investigation, even
though defendant had provided information on his background and was
“noticeably morose and irrational” when instructing counsel not to present any
mitigation witnesses). This is especially true when in doing so the “attorney
foregoes a defendant’s only plausible line of defense.” Foster v. Dugger, 823 F.2d
402, 407 n.16 (11th Cir. 1986).
Moreover, in many of the cases where counsel’s decision to forego
investigating or presenting mitigating evidence based on a competent client’s clear
instruction has been considered effective assistance, there was ample testimony
regarding counsel’s strategic decision not to present mitigating evidence, and
counsel had explained the mitigating evidence to the defendant. See, e.g., Reed v.
Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1240 (11th Cir. 2010); Cummings, 588
F.3d at 1361; Newland v. Hall, 527 F.3d 1162, 1209 (11th Cir. 2008).13 And, in
the cases collected and described in Cummings, the records were clear that the
13
Pope argues that because Eber lacked litigation or capital litigation experience at the
time of trial, “any purported ‘strategy’ of Mr. Eber’s should be given little, if any deference.”
However, while we have held that “the presumption that [experienced trial counsel’s] conduct
[is] reasonable is even stronger,” Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.
2000) (en banc) (emphasis added), we still give some deference to counsel’s conduct even if he
lacks experience. As we have recognized, “inexperienced does not mean ineffective.” Id. at
1316 n.18 (citing United States v. Cronic, 466 U.S. 648, 665 (1984)).
38
defendants had instructed counsel to forego not only the presentation of mitigating
evidence, but also its investigation.
Here, the record is wholly undeveloped concerning Eber’s perceptions of
Pope’s mental health, what instructions, if any, Pope may have given Eber about
investigating mitigating evidence, and how an investigation may have changed
Pope’s views on mitigating evidence, as well as what strategy, if any, Eber had for
Pope’s mitigation investigation or presentation. Without this record, we are left
with Pope’s express allegations that Eber utterly failed to investigate or prepare
for the penalty phase of the trial, never interviewed readily available witnesses
who had been present during the trial, and specifically admitted that he recalled
doing no mitigation investigation. Eber failed to do so, says Pope, even though
Eber was aware of at least some of Pope’s mental health issues, including PTSD.
Significantly, Pope also alleges that Eber improperly failed to object to the
following statement made by the prosecutor in closing arguments to the jury
during the penalty phase: “Incidentally, Mr. Pope has announced that he would
rather receive a death penalty than life imprisonment.”14 As the Florida Supreme
14
Pope also makes vague claims about other “patently improper statements by the
prosecutor and the court” to which Eber failed to object during the guilt and penalty phases of
trial. Because Pope has utterly failed to explain -- other than incorporating by reference
arguments he made in the district court -- which statements were “patently improper” or how
they prejudiced his case, we do not address them. See Anderson v. Sec’y for Dep’t of Corr., 462
F.3d 1319, 1331 (11th Cir. 2006) (holding that a death penalty petitioner was not entitled to a
39
Court found -- in ruling on Pope’s habeas petition alleging ineffectiveness of
appellate counsel -- the prosecutor’s comments in the penalty phase closing
argument were “clearly improper,” and “the comment on the petitioner’s
preference for death” was “[t]he most bothersome.” Pope, 496 So. 2d at 803. In
short, Pope has painted a picture for us in which trial counsel did not prepare for
the penalty phase of his trial; put forth little, if any, mitigating evidence, although
there was ample evidence available; and allowed the jury to hear, without
objection, that Pope preferred to die.
As for prejudice, Pope has alleged that because trial counsel failed to object
to the prosecutor’s comment to the jury that Pope preferred the death penalty, it
was manifestly easier for the jury to recommend death. In addition, he has alleged
that due to trial counsel’s failure to conduct any penalty-phase investigation, the
jury was not made aware that Pope suffered an abusive and impoverished
childhood; exhibited many positive personality traits; began experimenting with
drugs as a result of his Vietnam experience; escalated his drug use after he
returned home; continued to suffer from the consequences of the war; and
COA by incorporating by reference arguments made to the district court); Brownlee v. Haley,
306 F.3d 1043, 1059 (11th Cir. 2002) (“A petitioner must identify specific acts or omissions that
were not the result of reasonable professional judgment, and a court should deem these acts or
omissions deficient only if they ‘were outside the wide range of professionally competent
assistance.’” (emphasis added) (quoting Strickland, 466 U.S. at 690)).
40
exhibited substantial mental health issues, including post-traumatic stress disorder,
organic delusional disorder, substance abuse disorder, and bipolar disorder. In
particular, Pope claims that Eber failed to explain to the jury how Pope’s Vietnam
experiences affected his drug use, his psychological state, and the actions Pope
allegedly took during the weekend of the murders. The jury also did not hear
about the peculiarities of Pope’s mental state, and how because of Pope’s pre-
Vietnam childhood and mental disorders, Pope was more dramatically affected by
these things than the average Vietnam veteran would have been. This is
significant, since our courts have placed great importance on the impact of military
service as mitigation -- recognizing not only that “[o]ur Nation has a long tradition
of according leniency to veterans in recognition of their service, especially for
those who fought on the front lines,” but also that the relevance of “extensive
combat experience is not only that he served honorably under extreme hardship
and gruesome conditions, but also that the jury might find mitigating the intense
stress and mental and emotional toll that combat took on [the defendant].” Porter
v. McCollum, 130 S. Ct. 447, 455 (2009).
Nor did the jury hear that, according to Pope’s experts, his behavior at the
time of the murders satisfied two statutory mitigating circumstances -- (1) extreme
emotional or mental disturbance, see Fla. Stat. § 921.141(6)(b); and (2) diminished
41
capacity to conform his conduct to the requirements of the law, see id. §
921.141(6)(f) -- or that several non-statutory mitigating circumstances, including
his impoverished and abusive childhood and his capacity for rehabilitation,
applied. Indeed, Pope has alleged, through his experts’ affidavits, that his mental
illnesses, both singularly and in combination, impaired all aspects of his cognitive
and emotional processes and left him predisposed to act in an irrational manner
when confronted with even minimal stressors. His experts say that his chronic and
acute abuse of drugs also impaired his critical judgment, perception of others, and
interaction with others, so that Pope’s judgment was impaired to a substantial
degree at the time of the murders. The experts further opine that the combination
of increasing confusion and stressful events caused gross impairment of Pope’s
already impoverished cognitive ability and of his already severely compromised
ability to act volitionally. According to these experts, his drug dependence
influenced his actions and caused him to behave in violent and unpredictable ways
completely inconsistent and at odds with his prior history and background of
nonviolence. As a result, the experts opine, these conditions affected Pope’s
behavior by potentiating that he would overreact in an irrational, combative, and
even violent way, with no appreciation for the consequences of his behavior.
42
We agree with Pope that these allegations, considered together, are
powerful, and if he is able to prove they are true, he would be entitled to habeas
relief. See Hill, 175 F.3d at 922. However, we do not know the veracity of his
claims because Pope has never been afforded an opportunity to develop their
factual basis in the crucible of an evidentiary hearing -- nor, just as importantly,
has the State had the opportunity to challenge them in an adversarial hearing. As a
result, the district court’s denial of an evidentiary hearing amounted to an abuse of
discretion, especially since the district court ultimately granted habeas relief based
on the wholly untested allegations Pope sought to develop in the hearing.15
Therefore, the district court’s decision to grant habeas relief on Pope’s penalty-
phase claims without testing these allegations in an evidentiary hearing is vacated,
and the case is remanded with instructions to hold an evidentiary hearing on
Pope’s two penalty-phase ineffectiveness claims.16
15
We recognize that the district court observed that based on Eber’s 1987 deposition, it
may be futile to attempt to explore some of the facts underlying Eber’s performance -- including,
for example, Eber’s trial strategy during the guilt phase. However, we cannot ignore the fact that
the 1987 deposition barely touched on Eber’s performance during the penalty phase of the trial.
Nor, moreover, can we ignore that there are myriad other facts going to Eber’s effectiveness --
including the details surrounding Pope’s mental health -- that the State has not been, and should
be, able to test in an evidentiary hearing.
16
Finally, we observe that we have not resolved whether AEDPA deference applies to the
state court rulings in this case once the district court has held an evidentiary hearing. Notably,
neither the Supreme Court nor our Court has said which standard of review applies to evidence
properly developed in a federal hearing, although both have recognized this as an open question.
See Holland v. Jackson, 542 U.S. 649, 653 (2004) (per curiam); LeCroy v. Sec’y, Fla. Dep’t of
43
V.
Pope also claims that he was denied the effective assistance of counsel
during the guilt phase because his counsel, Eber: (1) failed to properly investigate
and prepare for Pope’s case; (2) unreasonably failed to object to various things
throughout the trial, including the introduction of guns unrelated to the three
murders and the admission of Buddy Lagle’s videotaped deposition; (3) failed to
effectively cross-examine Eckard; (4) failed to interview and properly prepare
defense witnesses, including Pope himself; and (5) failed to present certain
evidence of Pope’s innocence.17 Pope also argues that the district court erred in
considering his guilt-phase Strickland claims piecemeal, rather than considering
Corr., 421 F.3d 1237, 1263 (11th Cir. 2005). Because the answer may depend on what evidence
is uncovered in the federal court hearing, see LeCroy, 421 F.3d at 1263 n.30 (noting that
deference may not apply “[i]f the federal evidentiary hearing uncovers new, relevant evidence
that impacts upon a petitioner’s claim(s) and was not before the state court,” since “it is
problematic to ascertain how a federal court would defer to the state court’s determination,” but
also recognizing AEDPA’s strong preference for deference), we believe that the federal district
court should address this question in the first instance.
17
It is difficult to determine exactly which guilt-phase ineffectiveness claims are actually
before this Court. The district court granted a COA on this issue: “Petitioner’s argument in
Ground I that trial counsel failed to properly investigate and prepare, thereby causing prejudice to
Petitioner and entitling him to a new trial.” Ground I, as ruled on by the district court, contained
the five sub-issues listed above, and while it is somewhat of a stretch to say that all of these
claims are part of a failure to properly investigate and prepare, we will nonetheless address them
since the district court’s COA was vague and the State does not claim that Pope did not receive a
COA on all five of these sub-issues. However, Pope does not even mention in this Court two
sub-issues originally included in Ground I -- (1) counsel’s use of the PTSD defense at the guilt
phase; and (2) counsel’s failure to object to a recess during the jury’s deliberations, failure to
request the sequestration of the jury, and failure to object to the introduction of a newspaper in
the jury room -- and they are therefore abandoned. See Isaacs, 300 F.3d at 1238.
44
the cumulative impact of trial counsel’s errors. As we’ve noted, the state court
summarily rejected the majority of these claims when it simultaneously rejected
Pope’s penalty-phase claims.
After our thorough review of the entire record, we conclude that the Florida
Supreme Court’s decisions rejecting these claims were neither contrary to nor an
unreasonable application of Supreme Court law. Moreover, because his
allegations fall far short of satisfying AEDPA, and because the state court did in
fact grant him two different evidentiary hearings addressing defense counsel’s
performance at the guilt phase, Pope has failed to show that he is entitled to an
evidentiary hearing to explore further any of these guilt-phase claims. In reaching
this conclusion, we apply AEDPA deference to the state court’s decisions since, as
we have repeatedly held, AEDPA deference is due even if the state court decision
was summary in nature. See Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 776
(11th Cir. 2003); accord Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011).
At the outset, however, we address the State’s repeated argument that Pope
did not exhaust these claims in state court. As we’ve discussed earlier, the
Supreme Court has instructed us that if “the substance of a federal habeas corpus
claim [was] first . . . presented to the state courts,” then the claim is exhausted,
“despite variations in the . . . factual allegations urged in its support.” Picard, 404
45
U.S. at 277-78. Thus, “courts should exercise flexibility in determining whether
defendants have met [the exhaustion] requirement.” Cummings, 862 F.2d at 1507;
see also Henry, 197 F.3d at 1367 (“The exact presentation of the claims in the state
and federal courts may vary some.”).
As we see it, Pope has exhausted his guilt-phase ineffectiveness claims in
state court. While not every piece of factual support alleged in federal court was
alleged in state court, Pope made very similar allegations before the state and
federal courts, and any discrepancies are insignificant.18 Plainly, there was enough
for “the reasonable reader [to] understand [each] claim’s particular legal basis and
specific factual foundation,” Kelley, 377 F.3d at 1344-45, and thus we reject the
argument that Pope did not exhaust the guilt-phase claims.
Turning to the merits, we observe again that the majority of Pope’s guilt-
phase claims were rejected summarily by the Florida Supreme Court; however, the
Florida Supreme Court expressly addressed Pope’s claim that Eber unreasonably
18
Thus, for example, while Pope did not specify when presenting his first claim to the
state court that trial counsel Eber did not recall his meeting with Pope’s prior counsel, McNeil, or
that Eber unreasonably failed to hire an investigator, Pope’s general allegation that Eber was
unable to properly prepare, along with other instances of Eber’s failure to investigate or prepare,
was sufficient to exhaust the claim. Likewise, for the fifth claim, while Pope did not specify in
the state court that Eber did not recall from whom he had obtained a psychologist’s name, nor
whether he had met with certain other witnesses beforehand, Pope’s general allegation that Eber
was unable to properly prepare, along with the claim that Eber failed to prepare Pope to testify,
was sufficient to exhaust this claim.
46
failed to object to the admission of the Lagle deposition in lieu of a trial
appearance. In rejecting Pope’s challenge on direct appeal, the Florida Supreme
Court concluded that the State had met its burden of proving Lagle’s
unavailability so that his deposition could be read at trial, and pointed to a
statement from Eber that he did not doubt Lagle’s unavailability. See Pope, 441
So. 2d at 1076. Pope raised the issue again through the ineffective assistance
claim in his Rule 3.850 motion, and the Florida Supreme Court again denied relief,
finding that Lagle was in fact unavailable, and that Eber could not be “ineffective
for stipulating to a proven fact: the unavailability of the witness.” Pope, 569 So.
2d at 1245-46. On federal habeas review, the district court observed that Eber had
researched the issues surrounding Lagle’s testimony, and it concluded that the
Florida Supreme Court’s resolution of this claim was not contrary to or an
unreasonable application of Strickland.
The district court further concluded that Pope’s remaining guilt-phase
claims also failed to meet this standard. In rejecting the claim that Eber failed to
prepare for the case, the district court noted that Eber had interviewed witnesses,
taken or read witness depositions, and believed that he was ready for trial. As for
the claim that Eber failed to properly cross-examine state witnesses, the district
court reiterated that Eber had prepared for trial, and noted the ample discretion
47
afforded to counsel in deciding how to cross-examine witnesses. As for the claim
that Eber failed to prepare defense witnesses, the district court specifically
observed that Eber had met with and prepared Pope for trial. As for the claim that
Eber failed to present certain evidence of Pope’s innocence, the district court
concluded that even though Eber could not recall his strategy regarding alternate
theories of the defense, the claim failed because there was no reasonable
probability that the additional evidence would have affected the outcome of
Pope’s case. Finally, as for Pope’s cumulative error claim, the district court said
that “[f]or the reasons previously articulated in this Order, the Court has
determined that the [guilt]19 phase of the trial was not rendered fundamentally
unfair and, therefore, declines to entertain his cumulative impact claim.” Thus, the
district court concluded that Pope had not shown that the Florida Supreme Court’s
rejection of his guilt-phase claims was contrary to or an unreasonable application
of Strickland.
We agree with the comprehensive opinion of the district court, and reject
Pope’s guilt-phase claims. All in all, Pope essentially complains that Eber failed
to investigate, present evidence, and cross-examine the State’s star witness Eckard
19
In its order, the district court actually said that it did not find the “penalty” phase of the
trial to be fundamentally unfair, which is an obvious typographical error, since it granted habeas
relief as to the penalty phase of Pope’s trial.
48
about various issues that Eber actually did introduce at trial and did use to
contradict Eckard’s testimony. Pope also says that Eber did not properly object to
the introduction of evidence of Pope’s other guns or of Lagle’s deposition (even
though Eber used the evidence that Pope owned other guns affirmatively in his
defense, and even though Lagle was later found to be in fact unavailable), and that
Eber did not properly prepare Pope and other defense witnesses for their testimony
(although Pope fails to say what might have been accomplished by additional
preparation). In short, Pope has failed to show that the state court’s rejection of
his guilt-phase ineffectiveness claims was contrary to or an unreasonable
application of Strickland.
As for cumulative error, we have declined to consider this kind of claim
where a petitioner’s “state-court trial was not fundamentally unfair.” Cargill v.
Turbin, 120 F.3d 1366, 1386 (11th Cir. 1997). Because Pope has not shown that
the guilt phase of his trial was fundamentally unfair, we need not consider his
cumulative-error claim. But even if we were to consider Pope’s guilt-phase claims
in concert, there is no constitutional error, much less prejudicial error.
Indeed, as the record shows, the trial evidence of Pope’s guilt was strong.
All three victims had been shot with exploding ammunition, rendering a ballistics
comparison impossible. However, parts of an AR-7 rifle were found in the canal
49
near Walters’s body, and the spent shell casing under Di Russo’s body had been
fired from an AR-7 weapon. Ultimately the police were able to show that Doranz
had purchased an AR-7 rifle for Pope shortly before the murder. Pope admitted
being with Doranz the evening Doranz was killed. And Lagle told police he had
made a silencer for an AR-7 rifle at Pope’s request.
In addition, Eckard’s testimony directly implicated Pope in the murders.
She said that Pope had arranged a drug deal with Doranz and Di Russo, and that
on the day of the Doranz and Di Russo murders, Pope and Doranz had convinced
Walters to go with Eckard to the apartment where Pope had been staying. Eckard
testified that later the same night, Pope arrived at the apartment and told the
women that there had been trouble and that Doranz had been injured, but that it
was best for Walters to stay away from Doranz for a while. Eckard said she knew
that Di Russo and Doranz were dead, and that she had known Pope intended to kill
them at that point. According to Eckard, Walters then checked into a nearby
motel, where Pope supplied her with quaaludes and cocaine. On Sunday, Pope
told Walters he would take her to see Doranz. Eckard testified that Pope had told
her that he knew he had to get rid of Walters but that he regretted it because he had
become fond of her. Eckard said that when Pope returned, he described Walters’s
murder and how the gun had broken. Eckard also said that she had gone with
50
Pope to the scene of the crime the next day to collect fragments of the broken
stock and to look for the missing trigger assembly and receiver.
In light of the powerful showing of guilt, and the fact that the jury chose to
believe Eckard’s testimony (and not Pope’s) -- even though Eckard was
impeached and contradicted during the trial -- we cannot say there is a reasonable
probability of a different outcome, had trial counsel taken any of the steps that
Pope has now raised. Accordingly, we cannot conclude that the Florida Supreme
Court’s rejection of any of Pope’s guilt-phase ineffectiveness claims was contrary
to or an unreasonable application of Supreme Court law.
We, therefore, AFFIRM the district court’s denial of habeas relief as to
Pope’s guilt-phase ineffectiveness claims, but VACATE the district court’s grant
of habeas relief concerning Pope’s penalty-phase ineffectiveness claims, and
REMAND for the district court to hold an evidentiary hearing on the penalty-
phase claims.
51