[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 15, 2006
No. 05-14253 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00536-CV-ORL-18JGG
MARK DEAN SCHWAB,
Petitioner-Appellant,
versus
JAMES V. CROSBY, JR., Secretary,
Florida Department of Corrections,
CHARLIE CRIST,
Attorney General,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 15, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
CARNES, Circuit Judge:
So far as we know, the first time that Mark Dean Schwab sexually assaulted
a young male was in the fall of 1986, when Schwab was seventeen years old. His
victim was a younger, slightly built (4’10” tall, 85 lbs.), high school sophomore
whose first name, which is all we will use, was Warren. On his way to school in
Brevard County, Florida one morning, Warren walked by Schwab’s truck in the
parking lot of a bank near the school. Schwab asked Warren to help him start the
truck, which he did, although the truck started easily. Warren then made the
mistake of accepting Schwab’s offer of a ride to school. As soon as Schwab drove
the truck out of the parking lot, he grabbed Warren’s hair, pulled Warren’s head
into his lap, and put a knife against his throat. Schwab drove the truck down some
winding dirt roads and eventually parked it so that a tree blocked the passenger
door.
With Warren trapped inside the truck, Schwab ordered him to remove his
shorts. He then began to masturbate Warren. After a few minutes he ordered
Warren to masturbate himself and he performed oral sex on Warren. Schwab’s
assault on Warren lasted 30 to 45 minutes. Afterwards, he drove Warren to the
high school and threatened to kill him if he told anyone what had happened. Two
days later, as Warren was again walking to school, Schwab pulled up alongside
him, gave him a $20 bill, and thanked him for not telling anyone. Warren did not
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see Schwab after that and did not come forward about the crime until he heard
about the disappearance of the young boy in this case, which happened five years
later.
In the meantime, Schwab’s next known sexual assault occurred during the
summer of 1987. This time his victim, first name Than, was a thirteen-year-old
boy (between 5’3” and 5’6” tall). In order to get his hands on Than, Schwab called
the boy and his family, telling them he had adopted a dog that they had given to a
local pet shelter. He said that he needed their advice about how to care for the dog.
Using that ruse, over the next few weeks Schwab visited Than’s home in Brevard
County several times, ingratiating himself with the family.
About three weeks after first meeting Than, Schwab called him one morning
and told him that he had a house painting job on which he could use some help.
Schwab promised to give Than half of the $400 that he expected to be paid for the
work. Than agreed, and a little while later Schwab picked him up. Instead of
driving Than to the painting job, Schwab took him to his house. Immediately after
the two walked inside Schwab’s house, he stuck a knife to Than’s throat. Schwab
then forced Than to take off his clothes, bound his hands behind his back with a
cord, and blindfolded him. Schwab touched Than’s penis and orally molested him.
Schwab then forced the thirteen-year-old boy to lie on his stomach on a couch and
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anally raped him. The entire ordeal lasted several hours, all morning and into the
afternoon. Than blacked out during part of it.
Afterwards, Schwab untied Than, allowed him to dress, and drove him
home. Schwab told Than not to tell anyone and promised that he would put $200
in Than’s mailbox the next day if he would keep quiet. Than had a small cut on his
throat from the knife and had bruises on his arms from being tied up. He reported
what had happened to him, and Schwab was charged with sexual battery under
Florida law. He confessed and pleaded guilty to the sexual battery charge, Fla.
Stat. § 794.011(3) (“A person who commits sexual battery upon a person 12 years
of age or older, without that person’s consent, and in the process thereof uses or
threatens to use a deadly weapon is guilty of a life felony.”). That crime was
punishable by “ a term of imprisonment for life or by a term of imprisonment not
exceeding 40 years.” Id. §§ 775.082(3)(a), 794.011(3). He did not receive nearly
that much punishment. Instead, on March 18, 1988, Schwab was sentenced to only
eight years in prison. Unfortunately, and tragically, he did not serve his full
sentence or even half of it.
In early March of 1991 Schwab was released from prison in Florida. See
Schwab v. State, 636 So. 2d 3, 4 (Fla. 1994). His early release was not because he
had received any type of treatment. He hadn’t. Although he had been tentatively
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accepted into a sex offender program for inmates, before Schwab could complete
the screening process that program was ended because of budget cuts. Still, even
without treatment, Schwab was released from prison on probation only three years
after he was given an eight-year sentence. He was required to participate in a
sexual offender therapy program as a condition of his probation. In less than a
month after his release, and during the time he was participating in the program,
Schwab had found another victim.
Junny Rios-Martinez was an eleven-year-old boy, who was 5’ tall and
weighed 76 pounds. He won a kite-flying contest which led to his picture being
published in the March 21, 1991 edition of Florida Today, a local newspaper in
Brevard County, Florida. Children are often excited to see their pictures in the
newspaper, and Junny could not have suspected that it would ultimately cost him
his life.
The day after Junny’s photograph ran in the paper his mother received a
phone call from a man identifying himself as Malcom Denemark and saying that
he was from the newspaper. The man told Mrs. Rios-Martinez that he had seen
Junny’s picture in the paper and wanted to interview Junny for another article. He
called back later that day while Junny was at home and was allowed to speak with
him. Junny agreed to be interviewed, and his mother and the man arranged for it to
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take place at the Rios-Martinez home before Junny’s baseball game the following
day.
That next day, which was Saturday, March 23, Schwab went to Junny’s
home for the interview and introduced himself as “Mark Dean.” Schwab explained
that Denemark, his associate from Florida Today, could not make the interview
because of a conflict but that he was prepared to conduct it for Denemark. Schwab
carried a spiral notebook with handwriting on several pages, which he said were
questions that Denemark had prepared for the interview. Schwab did not work for
any publication (he had a construction job), and he was not an associate of anyone
named Malcolm Denemark. But neither Junny nor his mother knew that, and they
certainly did not know the person they had let into their home was a child molester
who had just gotten out of prison.
During the interview, Schwab sat on a couch in the living room, Junny sat
across from him in a rocking chair, and Mrs. Rios-Martinez sat on the couch just a
few feet away. Schwab asked Junny about the things he liked to do, his favorite
subject in school, his grades, whether there were drugs in school or peer pressure,
and about cars. Junny showed Schwab his baseball and surfing trophies, and
Schwab told Mrs. Rios-Martinez: “You must be very proud of him.” He gave
Junny a gift certificate to McDonald’s on which was written “To: Junny. From:
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Florida Today (Mark).”
After the interview was over, Schwab told Mrs. Rios-Martinez that he would
like to interview Junny again for another, potentially national, story and that Junny
should attend a photo shoot for the story at Florida Today’s offices the next
Monday. Mrs. Rios-Martinez agreed and told Schwab that he could also take
photos of Junny playing drums at a club where his father worked on Sundays.
Schwab asked Mrs. Rios-Martinez if he could go with them to Junny’s baseball
game that evening, telling her that he wanted to see Junny playing and get to know
him and his family better. Mrs. Rios-Martinez consented to that, and Schwab spent
a half hour at Junny’s baseball game that night.
Schwab did not show up at the club to take photographs of Junny on the next
Sunday. He called Mrs. Rios-Martinez that night and told her his deadline on the
story had been extended and the photo shoot canceled. The next day, Schwab
called again. This time he told Mrs. Rios-Martinez that he would no longer be
involved with the article for Florida Today, because he had taken a new position
with a surfing magazine. In this way, Schwab began to exploit the information he
had gained about Junny’s interest in surfing during his visit to their home.
Two days later Mrs. Rios-Martinez and her husband received a letter from
Schwab. In it he told them that their family was a special one, unlike any other he
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had ever met, and that he could tell all of the family members (there were two other
children) loved each other very much. The following Sunday, which was Easter,
Schwab personally delivered an Easter card to the Rios-Martinez family. Mrs.
Rios-Martinez was at home alone. She and Schwab discussed the letter he had sent
her and her husband. She told Schwab “that it had affected [her] deeply,
emotionally and that [she] was very affected by and very moved by what he had
written about [her] family.”
They also discussed the new job Schwab claimed to have. He told Mrs.
Rios-Martinez that he had gained a lot of contacts with surfing companies and that
he would like to help Junny get sponsored by one of them. He asked her to write
up a resume for Junny and to get together some pictures of him that Schwab could
take to his contacts. She did.
Three days later Schwab told Mrs. Rios-Martinez that a surfing company
was interested in sponsoring Junny. Later in the week, she put together more
pictures of Junny, and Schwab came by the house and picked them up. He then
told Mrs. Rios-Martinez that he wanted to take Junny to Daytona Beach to meet
people from the surfing company over the weekend. That did not happen because
the family was not able to make the necessary arrangements.
The following week Schwab dropped by the Rios-Martinez household and
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told them that a surfing company, which he named, had agreed to sponsor Junny.
He brought Junny a t-shirt with the company’s logo. Schwab told Junny that he
could have whatever surfboard he wanted and that he could even design it himself.
He said that the company also would provide Junny with surfing clothes.
Over the next several days Schwab visited the family several times. He
worked with Junny on designing his surfboard and clothes. He told Mrs. Rios-
Martinez that he had met with the president of the surfing company, and he hand-
delivered to Mrs. Rios-Martinez forged documents, purporting to be a sponsorship
letter and contracts. Schwab provided the family with a list of the surfing
tournaments that he claimed Junny would participate in.
During one of his visits with them Schwab again asked Junny’s parents if he
could take Junny to Daytona Beach to meet with the surfing company. They
agreed. Schwab told them that he would pick Junny up at 10:00 a.m. on Sunday,
April 14, 1991. That morning, however, he called and cancelled the trip. Mr. and
Mrs. Rios-Martinez did not hear from Schwab again. Their son did.
Thursday, April 18, 1991, began like any other school day for Junny. At
about 7:00 a.m., he left home for his sixth grade class at Clearlake Middle School
in Brevard County. He may have been anxious about the baseball game he was
going to play in that evening.
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At about 2:15 p.m. that day a bookkeeper at Junny’s school received a phone
call from a man purporting to be his father. The man told her to deliver a message
to Junny: “I’d like for him not to go home on the bus. I would like for him to
meet me at the ball field.” Believing the man to be Junny’s father, she contacted
Junny’s classroom, had him sent to the office, and gave him the message.
At about 3:00 p.m. that day, one of Junny’s schoolmates walked with him
for a short while toward the baseball field. She saw him jump the fence into the
baseball field. Another of Junny’s friends later saw him and “some tall guy”
getting out of a U-Haul truck. A short while later, the friend went back by the park
but the truck, the man, and Junny were gone.
Junny’s baseball game started at 6:30 that evening. Mrs. Rios-Martinez
went to the baseball field right after work, arriving shortly after 7:00 p.m. Junny
was not there. Her husband, who was also at the park, had not seen Junny. Mrs.
Rios-Martinez immediately left for home, but Junny was not there either. She
called Schwab at the number he had given her but was unable to reach him. Later
that evening she and her husband reported their son missing.
Early the next morning, April 19, Schwab learned from his mother that the
police had been to the apartment he shared with her and wanted to question him
about a missing child. About forty-five minutes later, Schwab called his mother
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and told her that he was going to see his probation officer. He did not. Instead, in
the late afternoon of the next day, April 20, he called his aunt in Port Washington,
Ohio, nearly a thousand miles from Cocoa, Florida. Schwab told her that a man
named “Donald” had forced him at gunpoint to kidnap a boy named Junny.
Schwab said that Donald had threatened to kill his mother if he did not do so.
Schwab also told his aunt that Donald had forced him to have sexual relations with
the young boy.
The next day, April 21, Ms. Kinsey was visited by law enforcement officers
who were looking for Schwab in connection with Junny’s disappearance. While
they were at Ms. Kinsey’s home, Schwab called. He called back later that day and
the officers were able to trace the call to a nearby town where they arrested him
while he was at a pay phone still talking with his aunt.
The night he was arrested Schwab voluntarily gave a recorded statement to
law enforcement officers. Schwab’s story, as recounted in that statement, is this.
A man he identified as “Donald” confronted him outside a bar at about 2:00 a.m.
on the Sunday before Junny disappeared, which would have been April 14, 1991,
and threatened to get him put back behind bars. On Monday, April 15, Schwab
received a call threatening to frame him for sexually assaulting a boy unless
Schwab bought a motorcycle for another man. Because of those two threats
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Schwab rented a U-Haul truck—he said he did it to make him look less
conspicuous—and he checked himself into a motel in Cocoa Beach, Brevard
County.
According to Schwab’s story, on Thursday, April 18, Donald accosted him
at a restaurant near the motel and forced Schwab into his car at gunpoint. Donald
drove him to a field and threatened to kill his mother if Schwab did not do
everything he was told. Donald then drove the two of them to a pay phone Donald
used to call Junny’s school pretending to be Mr. Rios-Martinez and leaving the
message that Junny should go to the baseball field after school. After making that
call Donald took Schwab back to the U-Haul truck and warned Schwab that he had
better return to his motel room with “some kid” or else his mother “was going to be
dead.” Schwab immediately went in his U-Haul truck and picked up Junny at the
baseball field.
Schwab claimed that shortly after he returned to his motel room with Junny,
Donald entered the room, locked the door behind him, drew his gun, and told
Schwab: “Now I got you, you son of a bitch.” Donald used duct tape to bind
Junny’s hands behind his back and a knife to cut Junny’s clothes off of him.
Donald told Schwab that he “was going to have to do something to this kid
sexually.” When Junny started to cry, Donald struck him “a couple times” and
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then taped his mouth shut. Donald then put his gun to the back of Schwab’s head
and forced him to have anal intercourse with Junny.
Schwab also told the officers that Donald forced him to leave the motel and
told him not to come back for several hours. When Schwab returned to the hotel
room sooner than he should have, Donald ordered him to pick up and handle a
black footlocker that was in the room. Donald again forced Schwab to leave.
After five or six hours, Schwab returned to the motel room but Donald and Junny
were no longer there.
Schwab claimed that he did not know where Junny was. The officers
returned him to Florida on April 23, 1991. While they were traveling from the
airport to the police station, Schwab told one of the officers that he wanted to look
for Junny’s body. For several hours during that rainy, overcast afternoon and into
the night, Schwab directed the officers accompanying him to various locations in
Brevard County. At about 10:00 p.m., Schwab led the officers to a largely
undeveloped part of the county. Once there Schwab walked down an unpaved
road, stopped, began pacing around in the road, and then pointed into the woods.
The search team crossed a drainage ditch and walked into the woods in the
direction that Schwab pointed. Not far from the road, they saw a small footlocker
tied nearly shut with rope and covered with palm fronds and debris, which
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obviously had been placed there to hide it. The lid of the footlocker was slightly
open and a white cloth was visible inside. Even from ten feet away, the team could
tell from the smell that a human body was inside. It had been five days since
Junny was last seen alive.
The officers took the footlocker to the Medical Examiner’s office where it
was carefully examined. When the ropes tied around the footlocker were cut and
the lid opened, there was a blanket that had several stains on it. Under the blanket
was a small boy’s naked body in a “semi-fetal position.” His face was not
recognizable because of decomposition, but through fingerprints the body was
identified as that of Junny Rios-Martinez.
Also found inside the footlocker were a pair of shoes, socks, underwear,
shorts, a shirt, a watch, a yellow medal, a gold chain, two towels, some pieces of
wadded-up duct tape, and a manila folder. Mrs. Rios-Martinez identified the
clothing and jewelry items as belonging to her son. Some of the clothing she had
bought for him the prior Easter, and the gold chain was a family heirloom his
father had passed on to Junny.
An autopsy determined that Junny had died from “mechanical asphyxia,”
probably smothering or strangulation. In spite of the decomposition, signs of
possible bruising around the anus were detected. One of the pieces of tape that had
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been wadded up in the footlocker had Schwab’s fingerprint on it. A search of
Schwab’s car led to the discovery of a receipt from a K-Mart. The receipt, dated
April 18, 1991, the day Junny was abducted, showed the purchase of a footlocker.
After Junny’s body was found, Schwab gave another statement to officers.
In it he retold his story about a man named Donald forcing him to kidnap and rape
Junny. This time, however, Schwab added that after he had intercourse with
Junny, Donald had forced him and Junny, who was still alive, to get into the U-
Haul that Schwab had rented. Donald drove them around various locations near
Cocoa while discussing where he could dump Junny’s body so that Schwab would
be blamed for his death. One of those locations was near where Junny’s body was
found. Donald then returned Schwab to the motel and told him to “get lost” and
not to come back for several hours. When Schwab returned the next morning he
saw Donald carrying the black footlocker, which Donald handed to Schwab. He
then ordered Schwab to leave again.
According to Schwab’s supplemental story, after he returned to the motel a
few hours later Donald forced him into his car and drove him out to where the
footlocker was. He ordered Schwab to walk into the woods where Schwab spotted
the footlocker. Donald then returned Schwab to the motel and threatened him for
the last time. The next day, Schwab said, he drove to Ohio.
15
The state trial court judge, after hearing all of the evidence at a bench trial
and sentence hearing, rejected Schwab’s story about another man being involved
and found that Schwab had acted alone. He found that Schwab had planned things
so that the young victim left the baseball field thinking he was with a trusted
friend. Once in the motel room, Schwab physically overpowered the slightly built
child. He bound with duct tape the little boy’s hands, his mouth, and part of his
face. He took a knife and violently cut off the child’s clothes, leaving him naked,
crying, and terrified. He punched him twice in the stomach. He put a bed sheet or
mattress cover over the head of the little boy who was so scared that he started to
shake. Schwab anally raped him. The victim did not even have the solace of
unconsciousness during the ordeal, which lasted a substantial amount of time. He
continued to cry throughout, stopping only when Schwab finally strangled or
smothered him to death. See Schwab, 636 F.3d at 7 n.6 (quoting from the trial
court’s findings). A few days before his brutal abuse of eleven-year-old Junny,
Schwab had attended a group therapy session as part of the sexual offender
program that was a condition of his probation.
I.
Schwab and his defense counsel made a strategic decision to waive a jury.
Id. After a week-long trial, the trial judge convicted Schwab on all counts as
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charged. Id. At a penalty proceeding before the judge, the evidence that was
presented on mitigating circumstances included the opinions of a number of mental
health experts.
Dr. Fred Berlin, a psychiatrist who is head of the sex offender program at
Johns Hopkins University, interviewed Schwab in October 1991 and prepared a
report on his behalf. There is no copy of Dr. Berlin’s report in the record before
us, but according to Schwab’s brief to the Florida Supreme Court, Dr. Berlin
diagnosed him as having “a paraphiliac disorder which consisted of homosexual
pedophilia and sexual sadism.” This disorder caused Schwab to “find [that] young
males are a powerful sexual attraction” and to become “even more aroused if
humiliation and pain are involved.” In Dr. Berlin’s opinion Schwab’s disorder is
“a serious psychiatric illness” that is “not due to any voluntary decision on
[Schwab’s] part.”
Dr. Howard Bernstein, a licensed psychologist, who also evaluated Schwab,
testified for him at sentencing. Dr. Bernstein found no evidence that Schwab had
any psychosis, formal thought disorder, major mood disorder, or any other mental
disorder. Instead, he found Schwab to be “rational and realistic” when interviewed
but added that “his social judgment and thinking is clearly impaired within a very
narrow range of interest and concerns, and that’s the sexual concern.” He
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described Schwab as being “preoccupied with sexual concerns,” and “profoundly
driven by these cravings,” and as having “immature judgment at the very least.”
Dr. Bernstein also believed that Schwab likely uses what he described as “false
memories” in order to justify his inappropriate sexual behavior and “to blame
others” for it.
Dr. Bernstein explained that Schwab’s acting out sexually likely begins as a
“fantasy” that “gives arousal” during which Schwab becomes “fixated” on a victim
who fits his sexual predilection—“[y]ounger boys, same gender, smaller stature.”
In order to fulfill his “obsessive sexual preoccupation,” Schwab takes a “ritualistic”
approach involving “preplanning” and “schemed” events. His fantasy is fueled by
his excitement and arousal, as well as by aggression and control. Schwab
contemplates only the positive consequences of his actions: “Orgasm, satisfaction,
completion, authority, revenge.” In order to justify acting on his fantasy, Schwab
must “distort[] real events to justify his behavior to . . . reduce his guilt.”
According to Dr. Bernstein, after Schwab’s preplanning and scheming
phase, there is “hyperaggressiveness” marked by “increased physiologic arousal
[and] sexual excitement.” Schwab begins to “transfer his fantasies to a real . . .
victim, and that leads to the next stage, victim seeking behavior.” Once Schwab
locates a victim that meets his fantasy, he begins “a fantasy rehearsal process.”
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The “mode of gratification” used by Schwab is “sex, . . . humiliation, . . . [and]
sadism.” It is at this point, Dr. Bernstein believes, that Schwab loses control, his
fantasy becomes an “irresistible impulse,” and Schwab “has an incapacity to stop.”
Schwab has rationalized, minimized, and, ultimately, denied the possibility of any
negative consequences from his action and has given himself “permission . . . for
the assault.” The conclusion of this process is for Schwab to act out his fantasized
sexual aggression.
Under cross-examination, Dr. Bernstein acknowledged that Schwab had
been able to control his desires for the several weeks during which he attempted to
lure Junny away from his parents. Schwab was also rational in understanding that
he would not be able to fulfill his desires unless he succeeded in being alone with
Junny. Dr. Bernstein testified that Schwab’s disorder likely progressed from the
time of the crime involving Than to the later one involving Junny. He conceded
that being punished for the 1987 crime against Than may have taught Schwab that
in order to fulfill his desires while protecting himself from punishment he needed
to kill his victim.
Dr. Bernstein was of the opinion that Schwab knows he is ill, exhibits signs
of guilt about his victims, and is “in constant turmoil” about it. However, he also
described Schwab as “egocentric” and “perhaps narcissistic,” stating that “[h]e
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wanted to use people for his own pleasure.” Overall, Dr. Bernstein summed up
Schwab as “[d]amaged goods,” a “sick child . . . with sexually disordered behavior
in an adult body,” and “[c]ertainly dangerous by history.” In his opinion, Schwab
showed “a low potential for change” and was one for whom “[r]ehab programs are
unlikely to succeed.”
Dr. William R. Samek, a clinical psychologist specializing in treating sexual
offenders and sexual abuse victims, testified as a rebuttal witness for the
prosecution. Dr. Samek disputed Dr. Bernstein’s conclusion that Schwab’s sexual
desires became “irresistible impulses” which he could not control. In Dr. Samek’s
view, such impulses can be resisted “if there’s sufficient motivation to stop.” He
believed that Schwab’s known assaults showed a progression and “that [Schwab]
ha[d] learned each time to do things better, more carefully and slicker.”
Dr. Samek believed that Schwab is not a pedophile but that he has “an
antisocial personality disorder” and is a “rape/murderer and mentally disordered
sex offender.” As a result, Schwab “would have been more difficult to treat . . .
than your average pedophile.” Dr. Samek concluded that “it is highly unlikely that
[Schwab] could be successfully rehabilitated and be safe without a lot of controls
around him.”
In support of that conclusion, Dr. Samek noted that Schwab’s “offenses were
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very cool, calm, [and] carefully planned,” that Schwab went “well beyond what is
needed to rape or even to [molest] . . . a kid,” and that Schwab “went to extreme
lengths to . . . seduce . . . and charm the family.” Dr. Samek found this last point
notable because “most child molesters choose victims who are easily molestable.”
He testified that Schwab’s choice of “good kids from good families who are
happy” reflects “his own resentment that he didn’t have a nice family” and that
Schwab “gets back” at his victims “by destroying them.” Dr. Samek also based his
conclusion that Schwab is not treatable on the fact that he exhibited “a tremendous
amount of remorse while in prison” but “that didn’t stop his behavior when he got
out.”
After considering all of those expert witness opinions and more evidence
offered in support of aggravating and mitigating circumstances, see Schwab, 636
So. 2d at 7–8, the state trial court judge found that the aggravating circumstances
outweighed the mitigating circumstances and sentenced Schwab to death. See id.
at 7. The conviction and sentence were affirmed on direct appeal, id. at 8, and state
collateral relief was denied, Schwab v. State, 814 So. 2d 402 (Fla. 2002).
Schwab filed a petition in the district court seeking relief pursuant to 28
U.S.C. § 2254. A habeas petitioner in custody under a state court judgment is
entitled to that relief if “the state court judgment rests on a decision that ‘was
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contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.’” Hunter v. Sec’y,
Dep’t of Corr., 395 F.3d 1196, 1202 (11th Cir. 2005) (quoting 28 U.S.C. §
2254(d)). The district court denied Schwab’s petition for a writ, and this is his
appeal from that denial.
II.
We granted a certificate of appealability on five issues. The one that
Schwab has emphasized in his briefs and oral argument to us has to do with an
asserted conflict of interest that he says affected his trial counsel. This claim was
discussed and rejected by the Florida Supreme Court on direct appeal. See
Schwab, 636 So. 2d at 5–6.
The facts related to this claim, briefly, are these. On March 23, 1992, two
months before Schwab’s trial was set to begin, a letter addressed to one of his
court-appointed counsel at the public defender’s office was delivered to that office.
The letter was opened by a secretary and examined by the executive director of the
office, two attorneys, and two investigators. The author of the letter, which was
handwritten, said that his name was “Doug.” In the letter Doug claimed that he
had murdered Junny and said that he “should have killed Schwab like [he]
planned.” The letter indicated that Doug knew Schwab had told the police about
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Doug committing the crime. (Actually, Schwab had told the police about
“Donald” committing the crime, but apparently insofar as the letter writer was
concerned the two were one and the same.) Because Schwab had ratted him out to
the police, Doug threatened in the letter to abduct, torture, and kill one of Junny’s
younger brothers because Schwab had told the investigating officers about Doug.
The letter did not explain how Doug—or Donald—knew what Schwab had told the
officers.
On March 25, 1992, two days after receiving the letter, the public defender’s
office informed the police about it and the next day handed it over to law
enforcement. Afterwards, the letter was tested and found to have Schwab’s
fingerprints on it.
On April 20, 1992, attorneys from the public defender’s office had been
representing Schwab in the case for nearly a year. On that date one of them filed a
motion requesting that the entire office be allowed to withdraw from further
representation. The stated grounds were that the prosecution planned to use the
“Doug” letter against Schwab at trial, and employees of the public defender’s
office would be called as witnesses to testify about the chain of custody of the
letter. The motion admitted that the “Doug” letter had been received by the public
defender’s office on March 23, handled by six employees at the office, and given
23
to law enforcement three days after it was received. At a hearing on the motion to
withdraw, Schwab’s chief trial counsel argued that he could not effectively cross-
examine any of his co-workers at the public defender’s office to test their
credibility because of his professional and personal relationships with them.
Counsel also refused to stipulate to the chain of custody of the letter even though
no factual basis for contesting it had ever been suggested. The trial court denied
the motion to withdraw.
The State called five members of the public defender’s office to testify to the
chain of custody of the letter. Schwab’s trial counsel insisted that he could not
cross-examine them, and he did not. The trial judge questioned two of the
witnesses after the prosecution concluded its examination of each of them. The
judge asked the first witness, a secretary with the public defender’s office, about
her job duties, how mail is processed at the public defender’s office, what she did
with the letter after she opened it, what the letter looked like and whether she read
it, whether the copy of the letter introduced into evidence was the same as she
remembered it, whether anyone else had come into contact with the letter while it
was in her control, and whether she had personal knowledge of who wrote the
letter. None of her answers helped the defense. The judge asked the second
witness, also a secretary, whether she had personal knowledge of who wrote the
24
letter, whether she had read it or had changed or altered it, whether the copy used
at trial was the same as she remembered it, and whether she was acting in the
normal course of business in handling the letter. None of her answers helped the
defense, either.
On direct appeal Schwab argued that he had been denied effective assistance
of counsel because his attorneys “were placed in the unenviable position of
discharging their duty of advocacy on behalf of their client at the risk of perhaps
alienating those persons with whom they work on a daily basis.” The Florida
Supreme Court held that Schwab had failed to meet his burden of showing
“substantial prejudice” from the public defender’s office’s continued
representation of him. Schwab, 636 So. 2d at 5–6. The court reasoned that the
testimony of the public defender employees “went to establish the collateral matter
of the letter’s chain of custody.” Id. at 6. Not only that, but “[t]he facts
establishing that [chain of] custody had been set out in the motion to withdraw and
were not in dispute.” Id.
In his federal habeas petition Schwab asserted that his Sixth Amendment
right to effective assistance of counsel had been violated because of the state trial
court’s denial of his trial counsel’s motion to withdraw based on a conflict of
interest, which caused “counsel [to] refuse[] to cross-examine the witnesses from
25
the . . . Public Defender’s Office and test the credibility and reliability of the
witnesses[‘] testimony.” See U.S. Const. Amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.”); Strickland v. Washington, 466 U.S. 668, 688, 104 S.
Ct. 2052, 2065 (1984) (stating that one of the “basic duties” of a criminal defense
attorney is “a duty of loyalty, a duty to avoid conflicts of interest”).
In resolving this claim the district court applied both the general two-prong
ineffective-assistance-of-counsel standard of Strickland, 466 U.S. at 687–96, 104
S. Ct. at 2064–69, and the more specific conflict-of-interest standard of Cuyler v.
Sullivan, 446 U.S. 335, 345–50, 100 S. Ct. 1708, 1716–19 (1980). It concluded
that under either standard there was no constitutional violation. “When reviewing
the district court’s denial of a habeas petition, we review questions of law and
mixed questions of law and fact de novo, and findings of fact for clear error.”
Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
A.
Strickland requires a defendant seeking to have his conviction or death
sentence reversed on ineffective assistance grounds to establish “that counsel’s
representation fell below an objective standard of reasonableness” measured
against “prevailing professional norms,” 466 U.S. at 688, 104 S. Ct. at 2064–65,
26
and “that the deficient performance prejudiced the defense,” id. at 687, 104 S. Ct.
at 2064. Prejudice exists where “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. Where there is no
prejudice, a court need not decide if the performance failed to meet required
standards. Id. at 697, 104 S. Ct. at 2069.
Without addressing the performance question, the district court denied the
claim because Schwab had not shown that he was prejudiced by his counsel’s
failure to cross-examine and attack the credibility of the witnesses from the public
defender’s office. The court’s reasoning was that those witnesses “merely
provided testimony regarding the chain of custody of the letter, which was not in
dispute.”
Cross-examination is important, a key “adversarial function.” See Polk
County v. Dodson, 454 U.S. 312, 320, 102 S. Ct. 445, 451 (1981); accord Nix v.
Williams, 467 U.S. 431, 446, 104 S. Ct. 2501, 2510 (1984) (“The Sixth
Amendment right to counsel protects against unfairness by preserving the
adversary process in which the reliability of proffered evidence may be tested in
cross-examination.”). It is one of the most important tools in the arsenal of
27
competent defense counsel. The Supreme Court recognized in Strickland that one
of the “basic duties” of an objectively reasonable defense counsel is “to bring to
bear such skill and knowledge as will render the trial a reliable adversarial testing
process.” 466 U.S. at 688, 104 S. Ct. at 2065. Our system of justice “assumes that
adversarial testing will ultimately advance the public interest in truth and fairness.”
Dodson, 454 U.S. at 318, 102 S. Ct. at 450; see also Greene v. McElroy, 360 U.S.
474, 497, 79 S. Ct. 1400, 1414 (1959) (“‘For two centuries past, the policy of the
Anglo-American system of Evidence has been to regard the necessity of testing by
cross-examination as a vital feature of the law. The belief that no safeguard for
testing the value of human statements is comparable to that furnished by
cross-examination, and the conviction that no statement (unless by special
exception) should be used as testimony until it has been probed and sublimated by
that test, has found increasing strength in lengthening experience.’”) (quoting 5
Wigmore on Evidence § 1367 (3d ed. 1940)).
It is easy to assume that a defense counsel who fails to cross-examine a
group of witnesses for wrong-headed, non-tactical reasons is performing
deficiently, at least if there is anything helpful to the defense that he could have
asked them. Here, it is not apparent that there was. The district court did ask some
questions of a couple of those five witnesses, but those questions were geared
28
toward clarifying the witnesses’ testimony, not probing their credibility. In any
event, we will assume that counsel’s failure to attempt any cross-examination of
any of the five chain of custody witnesses was deficient performance.
That does not matter to the disposition of this claim, however, because
Schwab has made no showing at all that there is a reasonable probability of a
different result in the trial if his counsel had cross-examined some or all of the five
witnesses to the letter’s chain of custody. The motion to withdraw laid out all of
the relevant facts regarding the chain of custody of the letter: when and where it
was received, to whom it was addressed, who opened it, who else possessed it or
handled it, and when it was turned over to the police. Schwab’s counsel set out
those facts in the motion because they were not subject to dispute on any
reasonable basis. There was not much else for any of the five witnesses to say on
the subject other than to attest that the letter had not been altered since leaving their
possession, which they did. As the state trial court, the Florida Supreme Court, and
the district court observed, the chain of custody of the letter was essentially
undisputed.
Schwab has the burden of affirmatively proving prejudice, and aided by new
counsel, he still has not suggested any evidentiary basis for attacking either the
chain of custody or the credibility of the five employees of the public defender’s
29
office who testified to it. Counsel cannot manufacture evidence, and the
Constitution does not require the presentation of evidence that does not exist. Nor
does counsel have a duty to ask questions implying facts that he knows are not
true. See Nix v. Whiteside, 475 U.S. 157, 175–76, 106 S. Ct. 988, 998–99 (1986)
(holding “as a matter of law” that federal habeas petitioner could not show
prejudice by his counsel’s refusal to allow him to perjure himself at trial “[e]ven
. . . assum[ing] that the jury might have believed his perjury”); Van Poyck v. Fla.
Dep’t of Corr., 290 F.3d 1318, 1323 (11th Cir. 2002) (“[A] lawyer need not
embrace his client’s fraud.”); Putman v. Head, 268 F.3d 1223, 1246 (11th Cir.
2001) (“Although an attorney has an ethical duty to advance the interest of her
client, that duty is limited by an equally solemn duty to comply with the law and
standards of professional conduct.”) (internal quotation marks, alteration, and
citation omitted); Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (“The
duty to render effective assistance of counsel does not include the duty to present
false or misleading testimony.”); Bush v. Singletary, 988 F.2d 1082, 1092–93
(11th Cir. 1993) (“We agree with the district court that ‘Strickland does not compel
an attorney to urge an argument which he reasonably finds to be futile, let alone
one he finds to be false.’”) (quoting district court opinion); Scott v. Dugger, 891
F.2d 800, 803 (11th Cir. 1989) (“[A]ppellant’s lawyer could not have rendered
30
ineffective assistance by failing or refusing to present a false defense.”). Schwab
has not shown that the letter’s authenticity legitimately could have been called into
question and ruled inadmissible if only his counsel had cross-examined the chain
of custody witnesses.
Nor has Schwab convinced us that pulling the letter from the pile of
evidence against him would have resulted in a reasonable probability of a different
verdict or sentence. Our confidence in the outcome of the trial and sentence
proceeding is not undermined in the least by this asserted failure of trial counsel.
See Strickland, 466 U.S. at 695–96, 104 S. Ct. at 2069 (instructing that in
determining prejudice a court should consider all of the evidence unaffected by the
failure of trial counsel).
B.
Schwab contends that even if he loses on a straight up inquiry into prejudice
under the general Strickland rule for errors and omissions of counsel, he should
still win on the theory that the limited presumption of prejudice announced in
Cuyler v. Sullivan applies. The Supreme Court held in Sullivan that, at least in
cases of concurrent multiple representation, a defendant is presumed to be
prejudiced where he can show (1) “that his counsel actively represented conflicting
interests” and (2) that the conflict “adversely affected his lawyer’s performance.”
31
Sullivan, 446 U.S. at 350, 100 S. Ct. at 1719; see also Strickland, 466 U.S. at 692,
104 S. Ct. at 2067. “[T]he possibility of conflict is insufficient to impugn a
criminal conviction.” Sullivan, 446 U.S. at 350, 100 S. Ct. at 1719. This was an
extension of the rule announced in Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct.
1173 (1978), where the Court held that when there is a timely objection to
concurrent, multiple representation, the failure of the trial judge to at least
investigate the need for separate representation violates the Sixth Amendment. Id.
at 484, 98 S. Ct. at 1178–79. The allure of the Sullivan test for defendants is that
adverse effect is much easier to show than the actual prejudice required when all
that is involved is an attorney error.
In the present case the district court rejected Schwab’s attempt to fit his
situation under Sullivan, concluding that his trial counsel did not “operate[] under
an actual conflict,” that is, he did not actively represent conflicting interests within
the meaning of that decision. The district court reasoned that “[t]he mere fact that
defense counsel had personal relationships with the witnesses is insufficient to
establish that he labored under a legal duty to inconsistent interests.” Schwab
disagrees with the proposition that in order for the Sullivan rule to apply counsel
must have a legal duty to an actual or potential party in addition to his duty to the
defendant. That is not precisely the question we must answer. Given that the issue
32
comes to us on federal habeas review of a state court judgment, the question is
shaped by 28 U.S.C. § 2254(d)(1).
Under that provision of the Antiterroism and Effective Death Penalty Act, a
federal court may grant a writ of habeas corpus only if the decision of the state
court “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.” Id. “Under the
‘contrary to’ clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by th[e Supreme] Court on a
question of law or if the state court decides a case differently than th[e] Court has
on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
412–13, 120 S. Ct. 1495, 1523 (2000) (majority opinion of O’Connor, J.); accord
Putman, 268 F.3d at 1241. “Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the correct governing
legal principle from th[e Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413, 120 S. Ct.
at 1523 (majority opinion of O’Connor, J.); accord Putman, 268 F.3d at 1241.
Under either standard the appropriate “measuring stick” is “clearly established
federal law,” which means “‘the holdings, as opposed to the dicta, of the Supreme
Court’s decisions as of the time of the relevant state court decision.’” Putman, 268
33
F.3d at 1241 (quoting Williams, 529 U.S. at 412, 120 S. Ct. at 1523 (majority
opinion of O’Connor, J.)) (alteration omitted).
The content of the § 2254(d) unreasonable application test is drawn in large
part from the Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989),
nonretroactivity doctrine and the decisions explicating it. Williams, 529 U.S. at
379–80, 120 S. Ct. at 1506 (“The antiretroactivity rule recognized in Teague,
which prohibits reliance on ‘new rules,’ is the functional equivalent of a statutory
provision commanding exclusive reliance on ‘clearly established law.’ . . . It is
perfectly clear that AEDPA codifies Teague to the extent that Teague requires
federal habeas courts to deny relief that is contingent upon a rule of law not clearly
established at the time the state conviction became final.”) (opinion of Stevens, J.).
The principal difference is that while federal appellate court decisions are
consulted to some extent when applying Teague, the exclusive focus of §
2254(d)(1) is Supreme Court decisions. Id. at 412, 120 S. Ct. at 1523 (majority
opinion of O’Connor, J.) (“With one caveat, whatever would qualify as an old rule
under our Teague jurisprudence will constitute “clearly established Federal law, as
determined by the Supreme Court of the United States” under § 2254(d)(1). The
one caveat, as the statutory language makes clear, is that § 2254(d)(1) restricts the
source of clearly established law to this Court’s jurisprudence.”) (internal citation
34
omitted).
Under Teague a new rule of criminal procedure generally may not be applied
in a federal habeas proceeding where the judgment in question became final before
the rule was announced. 489 U.S. at 310, 109 S. Ct. at 1075. A judgment becomes
final for these purposes when it is past the direct review stage. Caspari v. Bohlen,
510 U.S. 383, 390, 114 S. Ct. 948, 953 (1994); see also O’Dell v. Netherland, 521
U.S. 151, 157, 117 S. Ct. 1969, 1973 (1997); Lambrix v. Singletary, 520 U.S. 518,
527, 117 S. Ct. 1517, 1525 (1997). The judgment Schwab is attacking in this
proceeding became final on October 17, 1994 when the Supreme Court denied
certiorari, Schwab v. Florida, 513 U.S. 950, 115 S. Ct. 364 (1994). See O’Dell,
521 U.S. at 157, 117 S. Ct. at 1973; Bohlen, 510 U.S. at 390, 114 S. Ct. at 953;
Jones v. United States, 304 F.3d 1035, 1038 (11th Cir. 2002); Washington v.
United States, 243 F.3d 1299, 1300–01 (11th Cir. 2001).
A rule is considered new for Teague purposes unless it is dictated by
precedent—mostly Supreme Court precedent, although federal court of appeals
decisions are entitled to some respect in the inquiry, see Bohlen, 510 U.S. at 395,
114 S. Ct. at 956—at the time the judgment became final. Graham v. Collins, 506
U.S. 461, 467, 113 S. Ct. 892, 897 (1993) (“A holding constitutes a ‘new rule’
within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation
35
on the States or the Federal Government,’ or was not ‘dictated by precedent
existing at the time the defendant’s conviction became final.’”) (quoting Teague,
489 U.S. at 301, 109 S. Ct. at 1070). It is not enough that a rule be within the
“logical compass” of decisions existing then, or even that it be controlled by them.
Butler v. McKellar, 494 U.S. 407, 415, 110 S. Ct. 1212, 1217 (1990) (“[T]he fact
that a court says that its decision is within the ‘logical compass’ of an earlier
decision, or indeed that it is ‘controlled’ by a prior decision, is not conclusive for
purposes of deciding whether the current decision is a ‘new rule’ under Teague.”);
see also Graham, 506 U.S. at 467, 113 S. Ct. at 898 (“[U]nless reasonable jurists
hearing petitioner’s claim at the time his conviction became final ‘would have felt
compelled by existing precedent’ to rule in his favor, we are barred from doing so
[on collateral review].”) (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct.
1257, 1260 (1990)); Glock v. Singletary, 65 F.3d 878, 884 (11th Cir. 1995) (“[T]o
‘dictate’ a result, prior precedent must be specific; it is not enough that it name the
general principle from which the assertedly new rule sprang.”).
We take the dictated, truly dictated, requirement about prior precedent from
Teague and stiffen it up with the § 2254(d)(1) refinement that only Supreme Court
decisions can do the dictating. The result is that a state court decision based on a
conclusion of law is to be accepted by a federal habeas court unless a Supreme
36
Court decision in existence at the time the conviction became final truly dictated a
different conclusion of law. As framed by the circumstances and arguments in this
case, the issue of law is whether the presumed prejudice rule of Sullivan applies to
conflicts of interests other than those arising from concurrent multiple
representation. The § 2254(d)(1)/Teague issue stemming from that specific issue
of law is whether Supreme Court precedent on the books when Schwab’s
conviction became final dictated a conclusion that Sullivan’s presumed prejudice
rule did apply in other conflict of interest situations. The only Supreme Court
decision Schwab points to is Sullivan itself, which was in existence when his
conviction became final in 1994.
The Supreme Court has given us the answer to this question. In 2002, nearly
eight years after Schwab’s conviction became final, the Supreme Court stated in
Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237 (2002), that whether Sullivan
applies beyond multiple concurrent representation cases still is “as far as the
jurisprudence of this Court is concerned, an open question.” Id. at 176, 122 S. Ct.
at 1246. After noting many types of personal or financial conflicts to which the
courts of appeals have applied the Sullivan exception to Strickland, the Court
cautioned:
It must be said, however, that the language of Sullivan
itself does not clearly establish, or indeed even support,
37
such expansive application. “[U]ntil,” it said, “a
defendant shows that his counsel actively represented
conflicting interests, he has not established the
constitutional predicate for his claim of ineffective
assistance.” 446 U.S., at 350, 100 S.Ct. 1708 (emphasis
added). Both Sullivan itself, . . ., and Holloway, stressed
the high probability of prejudice arising from multiple
concurrent representation, and the difficulty of proving
that prejudice. . . . Not all attorney conflicts present
comparable difficulties.
Id. at 175, 122 S. Ct. at 1245 (some citations omitted). The Court itself
emphasized its words “actively represented,” making clear that the Sullivan
decision itself covers only active legal representation of conflicting interests, “[n]ot
all attorney conflicts.” See id., 122 S. Ct. at 1245. In case anyone missed the
point, the Court spelled it out unequivocally: “Sullivan itself does not clearly
establish, or indeed even support such expansive application,” and “whether
Sullivan should be extended to such cases remains, as far as the jurisprudence of
this Court is concerned, an open question.” Id. at 175, 176, 122 S. Ct. at 1245,
1246.
If, as the Supreme Court has told us, Sullivan does not hold that a presumed
prejudice rule applies outside multiple representation circumstances, so that it is an
open question whether the rule of that case should be extended to other types of
attorney conflicts, it cannot be that Supreme Court precedent dictates or clearly
establishes that the Sullivan rule applies in other conflict situations. Everyone, we
38
think, agrees with that syllogism. The disagreement is over how much attention
we should pay to what the Supreme Court told us in Mickens about the scope of
the Sullivan holding.
The Second Circuit has said that we need not pay too much attention to the
Supreme Court’s pointed remarks in Mickens, which that court characterized as
nothing more than dicta in a postscript. Tueros v. Greiner, 343 F.3d 587, 593 (2d
Cir. 2003) (“[a]s a postscript to its holding”; “the discussion of the scope of
Sullivan is dicta”). The Second Circuit insisted in Tueros that “we must look to
Sullivan, not to the Mickens postscript.” Id. The reason it gave: “If Sullivan by
its own terms were to apply to cases other than multiple representation cases, the
Supreme Court could not retroactively ‘un-establish’ this clear law in dicta,
because the command of § 2254(d) indicates that we are only able to consider the
holdings of Supreme Court cases decided at the time of the state court conviction.”
Id. at 593–94.
We disagree with the Tueros opinion’s dismissal of the Supreme Court’s
specific pronouncements in Mickens. A lot. We will start with the most
fundamental reason. We have always believed that when the Founders penned
Article III’s reference to the judicial power being vested “in one supreme Court
and in such inferior Courts” as Congress may establish, they used “supreme” and
39
“inferior” as contrasting adjectives, with us being on the short end of the contrast.
See U.S. Const. Art. III § 1. It would never occur to us to tell the Supreme Court
that we would decide our cases based on our analysis of its decisions, not its own
analysis of them just because that analysis had been announced in a case where it
was not essential to the result.
It is true that the Supreme Court’s analysis in Mickens of whether its
Sullivan rule applies to conflict of interest situations other than the one involved in
the Sullivan case, and its conclusion that the issue remains an open question in
Supreme Court jurisprudence, is dicta. However, there is dicta and then there is
dicta, and then there is Supreme Court dicta. This is not subordinate clause,
negative pregnant, devoid-of-analysis, throw-away kind of dicta. It is well thought
out, thoroughly reasoned, and carefully articulated analysis by the Supreme Court
describing the scope of one of its own decisions. It constitutes an entire, separately
enumerated section of the Supreme Court’s Mickens opinion—three long, citation-
laden paragraphs, consisting of more than five hundred words. That is some
“postscript.”
We have previously recognized that “dicta from the Supreme Court is not
something to be lightly cast aside.” Peterson v. BMI Refractories, 124 F.3d 1386,
1392 n.4 (11th Cir. 1997); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th
40
Cir. 1980) (“We are not bound by dicta, even of our own court. . . . Dicta of the
Supreme Court are, of course, another matter.”) (citation omitted); see United
States v. City of Hialeah, 140 F.3d 968, 974 (11th Cir. 1998) (“Even though that
statement by the Supreme Court . . . was dictum, it is of considerable persuasive
value, especially because it interprets the Court’s own precedent.”).
Other “inferior courts” have expressed similar sentiments. See Wynne v.
Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004) (“[W]ith inferior
courts, like ourselves, . . . carefully considered language of the Supreme Court,
even if technically dictum, generally must be treated as authoritative.”); Official
Comm. of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548,
561 (3d Cir. 2003) (en banc) (“Although the Committee is doubtless correct that
the Supreme Court’s dicta are not binding on us, we do not view it lightly.”);
United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en
banc) (“We do not treat considered dicta from the Supreme Court lightly. Rather,
we accord it appropriate deference. . . . As we have frequently acknowledged,
Supreme Court dicta have a weight that is greater than ordinary judicial dicta as
prophecy of what that Court might hold; accordingly, we do not blandly shrug
them off because they were not a holding.”) (quotation marks and citation
omitted); Wright v. Morris, 111 F.3d 414, 419 (6th Cir. 1997) (“Where there is no
41
clear precedent to the contrary, we will not simply ignore the [Supreme] Court’s
dicta.”); Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996) (“It
may be dicta, but Supreme Court dicta tends to have somewhat greater
force–particularly when expressed so unequivocally.”); Gaylor v. United States, 74
F.3d 214, 217 (10th Cir. 1996); City of Timber Lake v. Cheyenne River Sioux
Tribe, 10 F.3d 554, 557 (8th Cir. 1993); McCoy v. Mass. Inst. of Tech., 950 F.2d
13, 19 (1st Cir. 1991) (“We think that federal appellate courts are bound by the
Supreme Court’s considered dicta almost as firmly as by the Court’s outright
holdings, particularly when . . . a dictum is of recent vintage and not enfeebled by
any subsequent statement.”); Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120
n.8 (7th Cir. 1989) (“This Court should respect considered Supreme Court dicta.”).
It adds little to the discussion to say, as the Tueros opinion does, that “the
command of § 2254(d) indicates that we are only able to consider the holdings of
Supreme Court cases decided at the time of the state court conviction.” Tueros,
343 F.3d at 593–94. The determination of whether a decision in existence at the
time a defendant’s conviction became final held one thing or another must always
be decided after the conviction is final. If the Supreme Court in Mickens had truly
held, instead of explained in dicta, that Sullivan did not hold anything applicable
beyond the concurrent, multiple representation circumstance, presumably everyone
42
would agree that we inferior courts are bound by that holding about the scope of
the prior holding, even though the later holding came after a defendant’s
conviction became final. What we are considering is how much attention we
should pay to what the Supreme Court said in Mickens about what it held in
Sullivan.
There is irony in the Tueros opinion’s dismissal of the Supreme Court’s
discussion in Mickens as dicta. The irony is that the statements in Tueros about
Mickens are themselves dicta. The Tueros court actually decided the case before it
on the ground that, under the facts, the state court’s implicit decision that no actual
conflict of interest existed within the meaning of Sullivan was not contrary to, or
an unreasonable application of, clearly established federal law. Tueros, 343 F.3d at
594–98. The holding of the case is that Sullivan does not apply to any conflicts
arising from subjective beliefs that were not grounded in objective duties arising
from actual representation. Id. Given that basis of decision, it did not matter in
Tueros whether the Sullivan rule applied to cases other than those involving
concurrent, multiple representation situations, and that which is not necessary to
the decision of a case is dicta, Cotto v. Herbert, 331 F.3d 217, 250 n.20 (2d Cir.
2003) (“We have not hesitated to describe our prior statements as dicta when they
were not necessary to the holdings of the decisions in which they were made.”);
43
see also Dilg v. George Borgfeldt & Co., 189 F. 588 n.1 (2d Cir. 1911) (stating that
because “it is unnecessary to determine the question of estoppel presented, . . . we
think that dicta upon the subject would be inexpedient”). Because all that Tueros
said about Mickens’ dicta is dicta, it is less defiance than gratuitous bravado.
For all of these reasons, we disagree with the Second Circuit’s statements in
Tueros about the Supreme Court’s analysis and statements in Mickens. To the
extent, if any, that the Fourth Circuit’s decision in United States v. Stitt, 441 F.3d
297, 303–305 (4th Cir. 2006), which involved a § 2255 judgment not subject to §
2254(d)(1), treats the Supreme Court’s statements in Mickens in the way the
Second Circuit did in Tueros, we disagree with it for the same reasons.
We do agree with the Sixth Circuit’s reasoning and decision in Smith v.
Hofbauer, 312 F.3d 809, 815–17 (6th Cir. 2002) (quoting extensively from
Mickens and concluding that because the question of whether Sullivan’s rule
applies outside multiple representation circumstances remains an open question in
Supreme Court jurisprudence, a claim based on extension of the rule outside those
circumstances “is not based upon clearly established Supreme Court precedent as
mandated by AEDPA”). We also agree with the Ninth Circuit’s similar reasoning
and holding in Earp v. Ornoski, 431 F.3d 1158, 1184–85 (9th Cir. 2005), cert.
denied, __ U.S. __, __ S. Ct. __, 2006 WL 721847 (May 22, 2006). In that case,
44
the court noted that “[t]he Mickens Court specifically and explicitly concluded that
Sullivan was limited to joint representation, and that any extension of Sullivan
outside of the joint representation context remained, ‘as far as the jurisprudence of
[the Supreme Court was] concerned, an open question.” Id. at 1184. For that
reason, even though Ninth Circuit precedent had extended the Sullivan rule to
other contexts, the court concluded that under § 2254(d)(1) the state court
judgment embodying a decision not to extend the rule was due to be upheld. Id. at
1185.
We have spent all these words on the import of what the Supreme Court said
in Mickens because we do think what the Court said there clearly explains why
application of the Sullivan rule outside of concurrent, multiple representation cases
is not clearly established under its decisions. But even if the Mickens opinion had
never been issued, we would reach the same result. (Call what we have said about
Mickens dicta, if you must.) Take away the statements in Mickens and the fact
remains that there is no Supreme Court decision holding that any kind of presumed
prejudice rule applies outside the multiple representation context. The Sullivan
decision itself did not involve any other context. See Smith, 312 F.3d at 818 (“The
fact that it was not until Mickens that the Court expressly stated that Sullivan does
not support such an expansion, and the fact that the Court said so in dicta, does
45
nothing to change the fact that the rule sought by Petitioner was not clearly
established federal law at the time of his conviction nor is at the current time.”);
Earp, 431 F.3d at 1184–85.
After all, as the Second Circuit reminded us in its Tueros opinion, “the
command of § 2254(d) indicates that we are only able to consider the holdings of
Supreme Court cases decided at the time of the state court conviction.” Tueros,
343 F.3d at 593-94. At the time Schwab’s conviction became final there was—and
even since then there has been—no Supreme Court decision holding that prejudice
should be presumed to any extent where the attorney’s asserted conflict of interest
does not arise from concurrent multiple legal representation. That’s the whole
thing under § 2254(d)(1).
For these reasons, a decision that Sullivan’s limited presumption of
prejudice does not apply in this context is not “contrary to, or an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1). Nor is a failure to extend the Sullivan rule to this
new context unreasonable either.
III.
The other issues covered in the certificate of appealability that we granted do
not require nearly as much discussion. One of those other issues involves
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Schwab’s claim that the State did not sufficiently prove the corpus delicti of the
crime independent of his inculpatory statements. On direct appeal the Florida
Supreme Court rejected this claim on the merits. Schwab, 636 So. 2d at 6. In
doing so, it explained that putting Schwab’s statements aside, the fact of an
abduction, rape and murder were sufficiently shown by the victim’s body being
found nude in a footlocker at a remote location, his clothes having been cut off,
and the medical examiner’s opinion that he had died from manual strangulation or
smothering. Id. The court could have added that in spite of some decomposition,
there was evidence of possible bruising around the anus.
Schwab cites Fallada v. Dugger, 819 F.2d 1564, 1570 (11th Cir. 1987), for
the proposition that the corpus delicti corroboration rule, which is part of Florida
law, is also required as a matter of federal constitutional law. We need not decide
that question. Even assuming that Fallada establishes such a rule, 28 U.S.C. §
2254(d)(1) would be a substantial obstacle to application of that rule in this case.
We need not decide the size or effect of that obstacle, however, because even if our
review of the merits were wide open, we would agree with the Florida Supreme
Court that even without Schwab’s statements the evidence is sufficient to establish
that a kidnapping, rape, and murder were committed. See Schwab, 636 So. 2d at 6.
That is especially true since “the corroborated evidence does not have to prove the
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offense beyond a reasonable doubt as long as there is substantial independent
evidence that the offense has been committed” and “it is sufficient if the
corroboration merely fortifies the truth of the confession without independently
establishing the crime charged.” Fallada, 819 at 1570 (quotation marks and citation
omitted).
Another issue covered by the certificate of appealability concerns Schwab’s
waiver of trial by jury, which he claims was not knowingly and intelligently made.
The Florida Supreme Court held that the claim was procedurally barred, Schwab,
814 So.2d at 406 n.3 & n.4. The district court recognized and enforced the
procedural bar. The only cause Schwab has asserted for his failure to raise this
claim is ineffective assistance of counsel, but as the district court pointed out, he
has failed to establish that the assistance his counsel rendered in this respect was
ineffective. See also id. at 410–11 (rejecting the claim that counsel were ineffective
in connection with waiver of the jury).
The next issue covered by the certificate of appealability is whether counsel
rendered ineffective assistance of counsel in connection with the penalty phase of
the trial. Schwab contends that counsel was ineffective in regard to the
investigation and presentation of mitigating circumstance evidence, and in conduct
relating to certain aggravating circumstances. The facts relating to this claim and
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the Florida Supreme Court’s reasons for rejecting it are thoroughly discussed in
that court’s opinion affirming the denial of Schwab’s motion for post-conviction
relief. See id. at 412–14. Having studied this matter carefully, it is now obvious to
us that the decision is not contrary to, nor does it involve an unreasonable
application of, clearly established federal law as determined by the Supreme Court,
within the meaning of 28 U.S.C. § 2254(d)(1). The district court correctly denied
relief on this claim.
The final issue covered under the certificate of appealability is Schwab’s
claim that in sentencing him the trial court committed constitutional error in its
mitigating circumstance findings. The Florida Supreme Court rejected this claim
on direct appeal. See Schwab, 636 So.2d at 7–8. To the extent that Schwab
contends that the mitigating circumstance findings are based on incorrect findings
of fact, he has not carried his burden under § 2254(d)(2) of establishing that the
decision of this claim “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)(2).
This claim also appears to attack the trial court’s conclusions that some facts
or circumstances were not mitigating. In that respect, it runs counter to a number
of decisions recognizing that while sentencing courts may not refuse to consider
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evidence offered in mitigation, they need not decide that the facts established by
that evidence have mitigating force in the context of the case. The Constitution
requires that the sentencer be allowed to consider and give effect to evidence
offered in mitigation, but it does not dictate the effect that must be given once the
evidence is considered; it does not require the sentencer to conclude that a
particular fact is mitigating or to give it any particular weight. See Harich v.
Wainwright, 813 F.2d 1082, 1101 (11th Cir. 1987) (“Skipper [v. South Carolina,
476 U.S. 1, 106 S. Ct. 1669 (1986)], Eddings [v. Oklahoma, 455 U.S. 104, 102 S.
Ct. 869 (1982)], and Lockett[ v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978),]
require that the defendant be allowed to present all relevant mitigating evidence to
the sentencing jury or court. . . . These cases do not require that the sentencing
body accept the conclusion that the evidence constitutes a mitigating circumstance
or that the mitigating circumstances outweigh the aggravating circumstances.”),
adopted in relevant part sub nom. Harich v. Dugger, 844 F.2d 1464, 1468–69
(1988) (en banc), partially abrogated on other grounds by Davis, 119 F.3d at
1481–82; Atkins v. Singletary, 965 F.2d 952, 962 (11th Cir. 1992) (“Although
Atkins argues that the trial judge did not consider nonstatutory factors, it is more
correct to say that the trial judge did not accept—that is, give much weight
to—Atkins’ nonstatutory factors. Acceptance of nonstatutory mitigating factors is
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not constitutionally required; the Constitution only requires that the sentencer
consider the factors.”); Magwood v. Smith, 791 F.2d 1438, 1449 (11th Cir. 1986)
(“[A] federal habeas corpus court will not re-evaluate the weight accorded to
particular aggravating and mitigating factors. This determination is left to state
courts, provided the death-penalty statute and sentencing hearing meet relevant
constitutional requirements.”).
Alternatively, if the sentencing court erred in its treatment of the evidence
Schwab offered in mitigation or in its treatment of the facts established by that
evidence, the error was harmless. The standard for harmlessness in this context is
“whether the error had substantial and injurious effect or influence in determining”
the sentence. Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct. 1710,
1721–22 (1993); Horsley v. Alabama, 45 F.3d 1486, 1492–93 (11th Cir. 1995).
Earlier in this opinion we set out the horrendous facts of this case. The impact of
those facts on the sentencing judge’s decision, and his opinion about the relative
weight of the aggravating and mitigating circumstances, are inescapably conveyed
by the order he entered and the findings he made. For example, in explaining why
the heinous, atrocious or cruel aggravating circumstance factor applied, he said:
“It is impossible for this Court to contemplate another crime that would be more
heinous, atrocious and cruel than the death of Junny Rios Martinez. The terror of
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the abduction and rape followed by the slow death of strangulation or suffocation
was extreme.” Schwab, 636 So.2d at 7 n.6.
In addition to finding that the especially heinous, atrocious, or cruel
aggravating circumstance applied, the court also found as aggravating
circumstances that Schwab previously had been convicted of another capital felony
or one involving the use or threat of violence, and that the murder was committed
during the course of kidnapping and sexual battery. See Fla. Stat. § 921.141(5)(b),
(d), (h). The court not only concluded that the aggravating circumstances
outweighed the mitigating ones, but also found “that any one of the three
aggravating circumstances outweighs all mitigating circumstances.” There is no
possibility that any error the judge may have made in describing the evidence
offered in mitigation or in discussing the circumstances proven by that evidence
had any effect or influence on his sentencing decision, much less a substantial and
injurious one.
IV.
The district court’s denial of Schwab’s petition for federal habeas relief is
AFFIRMED.
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