[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 3, 2009
THOMAS K. KAHN
No. 07-15528 CLERK
D. C. Docket No. 04-00333-CV-RH-EMT
BRUCE DOUGLAS PACE,
Petitioner-Appellant,
versus
WALTER A. MCNEIL,
BILL MCCOLLUM,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Florida
(February 3, 2009)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
TJOFLAT, Circuit Judge:
Petitioner Bruce Douglas Pace, a Florida death-row inmate, appeals the
judgment of the United States District Court for the Northern District of Florida
denying his petition for writ of habeas corpus, brought pursuant to 28 U.S.C. §
2254. His appeal presents one issue: whether trial counsel rendered ineffective
assistance of counsel, in violation of the Sixth and Fourteenth Amendments, by
failing to investigate and present evidence of Pace’s substance abuse to his mental
health experts and thereafter to the jury during the penalty phase of his capital
trial.1 We resolve this issue against Pace and accordingly affirm.
I.
A.
The events in this case took place in November 1988 in and around Bagdad,
Florida, a small town in Santa Rosa County. In the evening of November 4, 1988,
Frankie Covington, the daughter-in-law of Floyd Covington, a taxicab driver,
contacted the Santa Rosa County Sheriff’s Office and reported Floyd Covington
missing. Three days later, Sheriff’s deputies found Covington’s bloodstained
taxicab in a wooded area near Bagdad. Bloodstain patterns indicated that a
1
Pace’s petition asserted six separate constitutional claims. The district court denied all
six. Pace filed a notice of appeal and the district court issued a certificate of appealability
pursuant to 28 U.S.C. § 2254(c) limiting his appeal to one issue: Whether penalty phase counsel
rendered ineffective assistance in the “failure to develop and present sentencing mitigation
evidence (including lay and expert testimony) relating to substance abuse.” We have framed the
issue in different language for convenience of discussion.
2
passenger shot Covington while Covington was sitting in the taxicab’s driver’s
seat. On November 10, investigators found Covington’s body in another wooded
area approximately twelve miles from where the taxicab was located. Covington
had been shot twice in the chest with a shotgun. A shotgun shell was found inside
Covington’s chest cavity, indicating that the shotgun had been fired at a very close
range. The medical examiner’s office fixed the time of death as sometime on
November 4.
On December 14, 1988, a Santa Rosa County grand jury returned a two-
count indictment against Bruce Douglas Pace charging Pace with first-degree
murder and armed robbery. At his arraignment, the Santa Rosa County Circuit
Court declared Pace indigent and appointed two lawyers, Samuel Hall and Randall
Etheridge, to represent him.2 Pace admitted to these attorneys that he killed
Covington but, as was his right, he entered a plea of not guilty and stood trial
before a jury. The State sought the death penalty.
2
Hall and Etheridge were assistant public defenders in the office of the Public Defender
for the First Judicial Circuit of Florida, which consists of four counties: Santa Rosa, Walton,
Okaloosa, and Escambia. Hall and Etheridge were stationed in Milton, the county seat of Santa
Rosa County. Kim Skievaski and Richard Hill, assistant state attorneys in the office of the State
Attorney for the First Judicial Circuit of Florida, served as counsel for the State. The pre-trial
and trial proceedings took place in Milton.
3
B.
The trial began in the Santa Rosa County Circuit Court on August 23, 1989,
before Judge Ben Gordon. The State presented evidence that Pace and Covington
were close friends and saw each other almost daily. Pace was twenty-nine years
old; Covington was seventy years old and on Social Security. Though they were
not related, Covington was like an uncle to Pace.
Angela Pace, a cousin, testified that, on November 3, Pace told her that he
was going to do something he “hated to do” because he needed money. Orestine
Franklin, Pace’s aunt, testified that she saw Pace driving Covington’s taxicab the
next day, November 4.
Michael Green, a childhood friend of Pace, testified that sometime during
the day of November 5, he and Pace went to a wooded area adjacent to a vacant
house to shoot squirrels with Pace’s 12-gauge shotgun. Pace retrieved his shotgun
from some shrubbery on the side of the vacant house; when they finished shooting,
he left the shotgun on the front porch of the house.
Harvey Rich, Pace’s stepfather, identified the shotgun as one owned by
Pace’s brother. Rich also testified that he found two shotgun shells in his front
yard on the evening of November 5. These shells were identical to the shotgun
shell found inside the victim’s body.
4
After Rich identified the shotgun, he repeated a conversation he had with
Pace on the morning of November 7. Pace lived with Rich and Pace’s mother,
Lillian Rich. On November 7, Pace, who had been away from the Rich home for
several days, returned to the residence and told Rich that he was in trouble and
needed to leave. When Rich sought an explanation, Pace related the following
story. On the night of November 3, Covington drove Pace to Rich’s house. After
Covington dropped him off, Pace discovered that he had lost his house key, so he
entered the house through an open window. When he went into his bedroom,
someone choked him and he lost consciousness. He awoke in a wooded area
several miles away, lying next to a shotgun and Covington’s taxicab. When he
noticed blood splattered about the cab, he took the shotgun and fled the scene.
Harvey and Lillian Rich were at home at the time Pace claimed to have
encountered the intruder in his bedroom. The prosecutor asked them whether they
had later observed any signs of struggle in the house or in Pace’s room. Both said
that they had not.
In questioning Rich on cross-examination, Randall Etheridge, who served as
lead defense counsel during the guilt phase of the trial, implied that an intruder
could have been in the house and attacked Pace without awakening the Riches or
leaving any signs of a scuffle. This questioning laid the groundwork for
5
Etheridge’s closing argument to the jury that someone other than Pace killed
Covington.
The State rested its case on August 25. Pace rested his case moments later
without calling any witnesses. After closing argument and receipt of the court’s
instructions, the jury retired to deliberate. Two hours later, the jury returned a
verdict of guilty on both counts of the indictment.
In the penalty phase, which began the next day, the State introduced, as an
exhibit, a certified copy of a judgment of the Santa Rosa County Circuit Court
dated December 4, 1981, adjudging Pace guilty of strong-arm robbery and
sentencing him to prison for fifteen years. Robert Mann, a probation officer for
the State of Florida, testified that Pace was on parole at the time of the Covington
murder. Pace had been released from prison on August 20, 1986.
Samuel Hall, lead defense counsel for Pace in the penalty phase, called five
witnesses.3 Santa Rosa County corrections officer Paul Campbell testified that
Pace was a model prisoner, “extremely cooperative,” “respectful,” and gave no
trouble. Hurley Manning, Pace’s high school football coach, testified that Pace
3
Prior to trial, after evaluating the strength of the State’s case, which they considered
overwhelming, Hall and Etheridge concluded that Pace’s best chance of a favorable verdict
would be in the penalty phase. Because Hall had more experience than Etheridge, especially in
capital cases, Etheridge was lead counsel in the trial phase and Hall was lead counsel in the
penalty phase.
6
was hard working and the “type of kid that you would like to have in the
program.” Robert Settles, Pace’s high school shop teacher who, after leaving
teaching, had opened a truss manufacturing business and hired Pace to cut trusses,
testified that Pace had been a master sawman with great potential but had not
always been reliable. Evelyn Rich, Pace’s aunt, testified that Pace was a “loving,
caring person” who came from a good, supportive family. Finally, Pace’s mother
Lillian Rich pleaded compassionately for her son’s life. She described how he
worked to support the family when he was just thirteen years old after his
stepfather left the home. She also testified that Pace suffered a head injury as a
young child that rendered him unconscious.
In closing argument, the prosecutor argued that five aggravated
circumstances dictated a death penalty verdict: (1) Pace was on parole at the time
of the murder; (2) Pace had been previously convicted of a violent felony; (3) he
committed the murder during a robbery; (4) Pace committed the crime to avoid
arrest; and (5) he committed the murder for financial gain.4 Hall, in response,
argued that the prosecutor had exaggerated the aggravating circumstances. He
4
See Fla. Stat. § 921.141(5) (1989) (listing aggravating circumstances in effect at the
time of Pace’s trial).
7
urged the jury to have mercy on Pace because Pace was a human being and a good
person with a good heart.
The jury recommended by a vote of seven to five that Pace be sentenced to
death.5 The trial court followed the jury’s recommendation and, on November 16,
1989, sentenced Pace to death for first-degree murder and fifteen years
imprisonment for the armed robbery charge. The court found three aggravating
circumstances: (1) Pace was on parole at the time of the murder; (2) Pace had
been previously convicted of a violent felony; and (3) the murder was committed
during the course of a robbery. The court found no mitigating circumstances.6
Pace appealed his convictions and death sentence to the Florida Supreme
Court.7 The supreme court affirmed Pace’s convictions and death sentence, Pace
v. State, 596 So. 2d 1034, 1035-36 (Fla. 1992), and the Supreme Court of the
5
The record does not indicate the length of the jury’s deliberation at the close of the
penalty phase of trial.
6
See Fla. Stat. § 921.141(6) (1989) (listing mitigating circumstances in effect at the time
of Pace’s trial). In addition to the statutory mitigating circumstances, the court took into account
“as a mitigating factor, any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffer[ed] as a basis for a sentence less than
death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978).
7
The issue certified in the certificate of appealability, which we decide today, was
presented to the state courts in Pace’s motion for post-conviction relief. None of the issues
presented to the supreme court on direct appeal are implicated in the instant appeal.
8
United States denied certiorari review, Pace v. Florida, 506 U.S. 885, 113 S. Ct.
244, 121 L. Ed. 2d 178 (1992).
II.
On March 7, 1997, Pace, represented by court appointed counsel (“collateral
counsel”), moved the Santa Rosa County Circuit Court to vacate his convictions
and death sentence pursuant to Florida Rule of Criminal Procedure 3.850. The
motion was assigned to Judge Paul Rasmussen, who presided over its disposition.8
Pace’s motion presented twenty-one claims for relief, Pace v. State, 854 So.
2d 167, 170 n.2 (Fla. 2003), including the ineffective assistance of counsel claim
now before us. That claim concerns the penalty phase of Pace’s trial and focuses
on the manner in which Samuel Hall dealt with Pace’s addiction to crack
cocaine—specifically, whether Hall’s investigation into the extent of this
addiction was adequate; whether he fully informed Pace’s mental health experts
about the addiction; and whether reasonably competent defense counsel would
have treated the addiction as a mitigating circumstance and presented it to the jury
at the penalty phase of the trial.
A.
8
John M. Jackson, Scott Mario, and Andrew Thomas, Assistant Capital Collateral
Counsel in the Northern Region Office handled Pace’s Rule 3.850 motion.
9
The circuit court held an evidentiary hearing on these three issues to give
collateral counsel an opportunity to prove that Hall’s performance was
constitutionally deficient. To that end, collateral counsel summoned three groups
of witnesses: (1) members of Pace’s family or friends, Kenneth Bembo, Margaret
Dixon, Barry Copeland, Melanie Pace, Ora Kay Jones, and Cynthia Jones; (2) the
two mental health experts Hall retained to assist him in preparing for the penalty
phase of the trial, Dr. James Larson, a psychologist, and Dr. Peter Szmurlo, a
psychiatrist;9 and (3) the two mental health experts collateral counsel retained, Dr.
Barry Crown, a psychologist, and Dr. Michael Herkov, a psychiatrist. These
witnesses’ testimony is summarized below.
The first group of witnesses testified to Pace’s use of crack cocaine.10 The
first group stated collectively that Pace used a significant amount of crack cocaine
in the months preceding the murder. Kenneth Bembo estimated that Pace used
between $50 to $100 of crack cocaine per day. Barry Copeland said that Pace
used between $300 to $500 of crack cocaine per day. Several witnesses testified
that when Pace used crack cocaine, he had poor hygiene and would act nervous
9
Drs. Larson and Szmurlo also assisted Etheridge to determine whether Pace had a
defense to the charges based on his mental condition at the time of the Covington murder. The
doctors found no basis for such a defense.
10
In addition to presenting the testimony of these witnesses in open court, collateral
counsel submitted affidavits they had obtained from these witnesses.
10
and paranoid. These witnesses also testified that Pace abused alcohol while using
crack cocaine.
Kenneth Bembo, Melanie Pace, and Ora Kay Jones said that Pace
manifested these symptoms of crack cocaine abuse during the week preceding the
murder. However, Cynthia Jones and Melanie Pace said that on the day before
and day of the murder, although Pace appeared to have poor personal hygiene and
smelled of alcohol, he did not seem to be under the influence of alcohol or drugs.
In cross-examination, the State showed that five of these witnesses had
testified on deposition taken by defense counsel prior to Pace’s trial.11 Though
questioned about Pace’s drug use at that time, they did not offer the information
they provided in the affidavits and at the evidentiary hearing.
The second group of witnesses consisted of Drs. Larson and Szmurlo. Hall
retained Dr. Larson to evaluate Pace to determine whether any psychological
mitigating factors could be developed for use in the penalty phase of the trial. Dr.
Larson administered psychological tests and interviewed Pace. Based on the
results of the psychological tests, Dr. Larson’s observations of Pace during the
interview, and the background information Hall provided, which he found
11
The attorneys who prosecuted Pace did not represent the State in the Rule 3.850
proceeding. Assistant State Attorney John Molchan and Assistant Attorney General Curtis
French represented the State.
11
sufficient for his purposes, Dr. Larson concluded that a psychological mitigating
factor based on mental impairment was not present in Pace’s case.12 He reached
this conclusion notwithstanding Pace’s drug abuse. Though Dr. Larson noted in
his report that Pace used crack cocaine regularly, he did not recommend that an
addictionologist evaluate Pace’s condition.
By the time collateral counsel called him to testify at the evidentiary hearing
eleven years later, however, Dr. Larson had revised his thinking. Dr. Larson
reached the view that Pace was drug dependent and in a “chronic cycle of abusing
alcohol and drugs” at the time of the murder. Thus, he testified that Pace met the
statutory mitigator of being substantially impaired at the time of the crime. Dr.
Larson came to this view after reading the affidavits of the first group provided by
collateral counsel.
Similarly, Dr. Peter Szmurlo met with Pace, conducted a psychiatric
evaluation—which involved consideration of Pace’s behavior history, the results
of the psychological tests Dr. Larson administered, and Dr. Szmurlo’s clinical
observations of Pace—and was unable to identify a psychiatric mitigating
12
At the time of Pace’s sentencing, Fla. Stat. § 921.141 governed sentencing in death
penalty cases. Fla. Stat. § 921.141(6) (1989). This lists as a mitigating circumstance: “(f) The
capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired.”
12
circumstance. Dr. Szmurlo was unable to do so even though Pace told Dr.
Szmurlo that he used crack cocaine for three months prior to the murder. Dr.
Szmurlo believed that Pace was a crack cocaine addict. Although he was not
familiar with the mitigating circumstances listed in the Florida statute at the time
he evaluated Pace, Dr. Szmurlo understood that being intoxicated, under the
influence of drugs, or having a preexisting psychiatric condition at the time of a
crime would constitute a mitigating factor. However, in light of what Pace told
Dr. Szmurlo about his mental and physical condition leading up to and around the
time of the murder, Dr. Szmurlo concluded that Pace was not under the influence
of drugs when he committed the crime. As Dr. Szmurlo stated in his expert report
to Hall, he found no mitigating psychiatric conditions “except for a rather heavy
use of cocaine prior to the offense.” Like Dr. Larson, Dr. Szmurlo believed that he
had sufficient information to evaluate Pace and did not recommend that an
addictionologist assess Pace.
At the evidentiary hearing, Dr. Szmurlo testified that collateral counsel
provided him the first group’s affidavits which indicated that Pace’s cocaine habit
was of a longer duration and more severe than Dr. Szmurlo initially believed and
that habit caused Pace to lose sleep and quit eating. Assuming the truth of the
affidavits’ statements, Dr. Szmurlo opined that, at the time of the murder, Pace’s
13
crack cocaine addiction substantially impaired his ability to conform his actions to
the requirements of law.
The third group of witnesses consisted of Drs. Crown and Herkov.
Collateral counsel hired Dr. Barry Crown, a psychologist, to perform a
neuropsychological examination of Pace in 1994, six years after the murder. Dr.
Crown testified that Pace was of average intelligence but his “intellectual
efficiency” was significantly diminished such that he had the problem-solving
abilities of a thirteen-year old child. Dr. Crown added that drug addiction
increased the likelihood that a person with Pace’s intellectual capabilities would
engage in antisocial behavior.
Collateral counsel hired Dr. Michael Herkov because he was a psychiatrist
with expertise in cocaine addiction. Dr. Herkov interviewed Pace on June 1, 2000
and testified that, based on that interview and his review of the documents
including the reports of Drs. Larson and Szmurlo, Pace was a cocaine addict on a
“cocaine binge” several days before the murder. However, Dr. Herkov testified
that Pace did not use crack cocaine on the day of the murder or the previous day.
Dr. Herkov opined that Pace’s ongoing crack cocaine addiction and binge
substantially impaired his ability to conform his behavior to the requirements of
the law at the time of the murder.
14
The State countered collateral counsel’s presentation with the testimony of
James Martin, a Public Defender Office investigator, and Samuel Hall. Martin
testified that he interviewed Pace on November 10, 1988, at the Santa Rosa
County Jail.13 At that meeting, Pace admitted that he killed Covington. Pace told
Martin that he used crack cocaine but did not use it on the day before or the day of
the murder. Martin said that, during the interview, Pace was coherent and did not
appear to be under the influence of drugs or alcohol.
Hall testified that his penalty phase strategy was
to try to tell the jury that Bruce Pace was somebody that had a life, a
human being, he should be saved. . . . Even though he had this other
charge, this strong arm robbery [conviction in 1981,] that it still was
out of character for him to have committed this crime.
Hall knew that Pace was a crack cocaine addict but wanted to keep that fact from
the jury if at all possible because introducing evidence of Pace’s drug use was a
“two-edged sword”:
Put on all of this good stuff to show what a good person he is, and
then also, ladies and gentlemen, also by the way, he is [a] drug addict
and a drug user. I just thought that it was a negative. And I could be
13
Pace was not indicted until December 14, 1988, so the question arises as to why Martin
would have met Pace at the jail on November 10. The record does not provide an explicit
explanation, but it suggests that Pace had been arrested for violating Fla. Stat. § 790.23,
prohibiting Florida felons from possessing a firearm. At Pace’s arraignment on the charges in
this case, Samuel Hall informed the court that he had been appointed to represent Pace in the
unlawful possession of firearm case. It is possible that Martin went to the jail on November 10
to interview Pace about the unlawful possession of firearm charge.
15
wrong and it would be something that the jury can consider as a
mitigator, but that was my reasoning. . . . There may be some people
that just dislike people that use drugs and vote for death just because
of that.
Hall made that strategic choice to portray Pace as a decent human being and
to steer clear of the crack cocaine addiction for two reasons. First, Pace told Hall
and Martin that Pace did not use drugs on the day of the murder or the previous
day. Hall had no reason to believe that Pace was lying, so he made no attempt to
locate someone who would testify that Pace was high on the day of or day before
the murder.14 Moreover, Pace’s general useage of crack cocaine did not, in Hall’s
mind, constitute a strong mitigating circumstance. Second, neither Dr. Larson nor
Dr. Szmurlo, who were aware of Pace’s crack cocaine habit, suggested using
intoxication as a mitigating factor. The doctors also ruled out as a mitigating
circumstance evidence of brain damage, organic brain dysfunction, or serious
mental disorder.
B.
On July 11, 2001, the circuit court denied Pace’s Rule 3.850 motion. The
court denied relief after applying the two-pronged standard for ineffective
14
When questioned on cross-examination why Hall thought Pace was telling the truth
about being sober at the time of the murder, Hall replied, “Why would he lie to me about the
drugs, the alcohol, or the being intoxicated, and tell me [that he murdered Covington,] something
that is a lot worse than whether or not he used drugs or not?”
16
assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In short, to satisfy that standard, a
defendant “must show that: (1) counsel’s performance was deficient because it fell
below an objective standard of reasonableness; and (2) the deficient performance
prejudiced the defense.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209
(11th Cir. 2007).
With respect to the first prong, the circuit court saw no basis to find that
Hall’s performance was constitutionally deficient in preparing for and handling
the penalty phase of trial. To the contrary, the court found that the investigation
Hall conducted in preparing for that phase was thorough and that the strategy he
chose to follow at trial was entirely reasonable. Having reached this decision, the
court considered its Strickland analysis closed and denied Pace’s ineffective
assistance claim. The court also rejected Pace’s other grounds for Rule 3.850
relief.
III.
Pace appealed to the Florida Supreme Court from the denial. On May 22,
2003, the supreme court affirmed. Pace v. State, 854 So. 2d 167 (Fl. 2003).15 We
15
At the same time, Pace petitioned the supreme court for a writ of habeas corpus on the
ground that the court-appointed attorneys who handled his direct appeal provided ineffective
assistance of counsel. The court denied the writ and that decision is not implicated in this appeal.
17
may not disturb the supreme court’s decision unless it “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States,
or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). Thus, we review in considerable detail and quote extensively
from the supreme court’s opinion finding no merit in the ineffective assistance
claim at hand.
18
The Florida Supreme Court recited the applicable Strickland standard,16 and
then, applying that standard, considered the circuit court’s findings of fact and
conclusions of law.17
16
The supreme court stated:
To establish a claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052[, 2064], 80 L.Ed.2d
674 (1984). There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Additionally, “there is no
reason for a court deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient showing on
one.” To prove prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceedings would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Pace, 854 So. 2d at 172 (citations omitted).
17
The supreme court employed the following standard of review in reviewing the circuit
court’s disposition of Pace’s claim:
[T]he performance and prejudice prongs are mixed questions of law and fact
subject to a de novo review standard but . . . the trial court’s factual findings are to
be given deference. So long as its decisions are supported by competent,
substantial evidence, this Court will not substitute its judgment for that of the trial
19
Pace claimed that Hall rendered ineffective assistance in preparing for and
representing Pace in the penalty phase of the trial. Specifically, Pace articulated
three areas of deficiency: (1) Hall’s failure to adequately investigate Pace’s
addiction to crack cocaine; (2) Hall’s failure to present to Drs. Larson and Szmurlo
the evidence of crack addiction that an adequate investigation would have
produced; and (3) Hall’s failure to present such evidence to the jury.
With respect to the first deficiency, that Hall failed to adequately investigate
Pace’s crack cocaine addiction, the circuit court found, as summarized by the
supreme court, that:
Hall’s [pre-trial] investigation consisted of the following: (1)
deposing several witnesses; (2) utilizing an investigator to interview
witnesses for potential mitigating evidence; (3) obtaining witness
statements from the State; (4) obtaining Pace's school records; and (4)
securing two mental health experts, psychologist Dr. James Larson
and psychiatrist Dr. Peter Szmurlo, to examine Pace. . . . Pace
consistently related to Hall that he was suffering from no drug-related
effects at the time of the offense. . . . Hall interviewed several of
Pace's friends and relatives regarding Pace's crack use but, as the
postconviction court stated, “individuals close to Pace failed to
disclose any information that either augmented or sharply
contradicted Pace’s own self reports of crack use.”
court on questions of fact and, likewise, on the credibility of the witnesses and the
weight to be given to the evidence by the trial court. We recognize and honor the
trial court’s superior vantage point in assessing the credibility of witnesses and in
making findings of fact.
Pace, 854 So. 2d at 172 (citations omitted).
20
The supreme court agreed with the circuit court that Hall’s investigation into
Pace’s crack cocaine use was reasonable. Hall not only relied on Pace’s repeated
assertions to him—that he was not on the drug before or during the murder—but
he also explored the subject with Pace’s family and friends.
The supreme court then turned to Pace’s second deficiency, that Hall
rendered ineffective assistance by failing to provide Drs. Larson and Szmurlo
further evidence of Pace’s crack cocaine addiction, evidence that, according to
collateral counsel, a reasonable investigation would have disclosed. The court
found that “[collateral] counsel provided Dr. Larson and Dr. Szmurlo with recent
affidavits from Pace’s friends and family, the presentence investigation report for
Pace’s strong arm robbery [in 1981], and Pace’s juvenile records.” Id. at 174 n.5.
From this information, the doctors knew and expressed in their reports that Pace
abused crack cocaine but that he was not high on crack at the time he committed
the charged offenses. Id. at 173. “Neither expert requested that Pace be evaluated
by an addiction specialist nor indicated that [Pace’s] crack use might have affected
his mental health at the time of the offense.” Id.
Pace contended that Drs. Larson and Szmurlo misdiagnosed Pace’s mental
condition and if Hall had provided them with “the information that postconviction
counsel provided them, both experts would have found that both statutory mental
21
mitigators were applicable.” Id. at 174. The circuit court held this contention
without merit for several reasons.
First and foremost, trial counsel's investigation into [Pace’s] drug use
was reasonable based upon the representations of [Pace] and others.
Second, counsel did not withhold any essential information from
either expert that was within their possession. Third, neither expert
believed at the time of the original evaluation that they had
inadequate information to render a diagnosis nor requested additional
information from counsel. Fourth, counsel did provide the experts
with information that contained insight into [Pace’s] background.
The record reveals that counsel provided Szmurlo and Larson with
police investigative reports that contained information pertaining to
[Pace’s] crack use, hygiene issues, emotional state, and the fact that
he stayed in an abandoned house. Counsel also provided Dr. Larson
with numerous pretrial statements and depositions. In addition to the
background materials, each expert had an opportunity to interview
[Pace] and Pace reported heavy crack use to both of them. Despite
their knowledge of his crack use and aberrant behavior, both experts
failed to develop the presence of organic brain damage or statutory
mental mitigation during their initial evaluations. In addition, neither
expert recommended that an addictions specialist examine Pace.
Moreover, the fact that [Pace] has now secured favorable testimony of
mental mitigation and brain damage from Dr. Michael Herkov and
Dr. Barry Crown does not render counsel's investigation into
mitigation ineffective. See Asay v. State, 769 So.2d 974, 986
(Fla.2000); Jones v. State, 732 So.2d 313, 320 (Fla.1999); Rose v.
State, 617 So.2d 291, 294 (Fla.1993). See also Davis v. Singletary,
119 F.3d 1471, 1475 (11th Cir.1997) (stating “mere fact a defendant
can find, years after the fact, a mental health expert who will testify
favorably for him does not demonstrate that trial counsel was
ineffective for failing to produce that expert at trial.”). Counsel
diligently obtained two mental health professionals to examine Pace
prior to trial but those experts failed to provide counsel with
22
favorable information. As indicated above, counsel is not deficient
for reasonably relying upon the opinions of Szmurlo and Larson and
not seeking out additional experts. See Card v. Dugger, 911 F.2d
1494, 1513 (11 Cir.1990) (stating counsel is not required to shop for a
psychiatrist who will testify in a particular way).
Furthermore, the fact that Szmurlo and Larson have now changed
their diagnosis does not render counsel's background investigation
ineffective. At the evidentiary hearing, Szmurlo and Larson both
testified that they currently believe that Pace was suffering from an
emotional disturbance at the time of the murder and his ability to
conform his conduct to the requirements of the law was impaired.
However, the information that Szmurlo and Larson attribute to this
change in opinion is comprised primarily of individuals who have
changed their accounts of Pace's behavior or other information that
counsel had no reason to pursue due to the representations of [Pace]
and others.
Of the 10 recently obtained affidavits that collateral counsel
submitted to the experts, trial counsel had deposed five of the affiants
prior to Pace's trial. Barry Copeland, Ella Mae Green, Melanie Pace,
Cynthia Pace, and Hilda Pace were each questioned regarding Pace's
drug use and none of these witnesses offered information they
provided in the recent affidavits. Trial counsel cannot be deemed
ineffective for failing to provide information to mental heath experts
that the affiants chose not to disclose to counsel when originally
questioned. As for the remaining affiants, trial counsel had no reason
to pursue these individuals in light of the information they received
from [Pace] and his friends and family.
Id. at 174-75. The supreme court held that the evidence before the circuit court
supported its factual findings. Reviewing de novo the circuit court’s conclusion of
law that Hall was not ineffective in failing to disclose to Drs. Larson and Szmurlo
the evidence provided by the ten affiants collateral counsel obtained, the supreme
23
court held that the failure did not constitute ineffective assistance. Id. at 176.
The supreme court then considered the third deficiency, that Hall was
ineffective in failing to present to the jury evidence of Pace’s addictive abuse of
crack cocaine. The circuit court “concluded that ‘given the unfavorable
psychological opinions [by Drs. Larson and Szmurlo], counsel’s tactical decision
to humanize [Pace] and not present any evidence of his drug use was a reasonable
strategy.’” Id. at 173. The supreme court held that the circuit court’s finding that
Hall made an informed “strategic decision to present Pace’s positive attributes
over evidence of his crack use” was supported by “substantial competent
evidence.” Id. In reaching this holding, the supreme court rejected Pace’s
argument that Hall and the circuit court erroneously relied upon the assumption
that Pace had to be under the influence of drugs at the time of the offense:
[W]e do not find that either Hall or the postconviction court relied
upon such an assumption. Hall’s testimony was that in his experience,
Pace’s cocaine addiction would only be considered “significantly”
mitigating if some effect of the addiction could be linked to Pace’s
conduct at the time of the offense. Because Pace continued to assert
that he was not affected by his crack use at the time of the offense and
because Dr. Larson and Dr. Szmurlo, the experts hired by Hall, did
not report that Pace's crack use affected his mental health at the time
of the offense, Hall concluded that evidence of Pace's past crack use
would be more prejudicial than beneficial under the circumstances of
the defense. Hall concluded that the evidence of crack use would be
contrary to his strategic efforts to emphasize with the jury that Pace
“had some good qualities and was a human being who should be
24
saved.” Our review of the postconviction order reveals that the court
made a factual determination based upon the evidence presented that
Hall's decision was strategic and that the postconviction court applied
the correct rule of law.
Id. at 174.
In sum, the supreme court, on de novo review, concluded that Pace failed to
prove that Hall’s performance in preparing for or presenting Pace’s case in the
penalty phase fell below the Strickland performance standard. The court therefore
affirmed the circuit court’s disposition of the claim at issue along with its denial of
the other claims Pace’s Rule 3.850 motion had raised. Pace petitioned the United
States Supreme Court for writ of certiorari and the Supreme Court denied Pace’s
petition on January 20, 2004. Pace v. Florida, 540 U.S. 1153, 124 S. Ct. 1155, 157
L. Ed. 2d 1049 (2004).
IV.
On September 28, 2004, Pace filed a timely petition for a writ of habeas
corpus in the United States District Court for the Northern District of Florida
seeking relief on the same ineffective assistance of counsel claim the supreme
court rejected and five other claims of constitutional error as well. On October 1,
2007, the district court denied Pace’s petition in full. It rejected the ineffective
assistance claim at issue here as follows:
25
In short, the attorney determined that the possible benefit of
presenting testimony regarding Mr. Pace’s cocaine use was
outweighed by the risk that it would impact the jury negatively. He
therefore made a tactical decision not to present evidence of the
cocaine use in mitigation. Given the totality of the circumstances,
Mr. Pace has not demonstrated that the attorney’s representation fell
below an objective standard of reasonableness.
Or at least, so a state court could reasonably conclude, as the Florida
Supreme Court did. The court’s decision was not contrary to, nor an
unreasonable application of, clearly established federal law. The court
clearly identified Strickland and other relevant state and federal cases
interpreting Strickland, and it applied those decisions to the facts of Mr.
Pace’s case. There is no case decided by the United States Supreme Court
with materially indistinguishable facts that reached a different result. Nor
was the Florida Supreme Court’s decision based on an unreasonable
determination of the facts. . . .
The Florida Supreme Court held that Mr. Pace’s penalty phase
counsel did not render ineffective assistance by failing adequately to
prepare the mental health experts or by relying on their opinions. The
court’s holding is not an unreasonable application of, nor contrary to,
settled federal law, and the determination is not based on an
unreasonable determination of the facts.
Pace filed a timely notice of appeal to this court. After he filed the notice,
he applied to the district court for a certificate of appealability. The court granted
his application on one issue: whether trial counsel rendered ineffective assistance
of counsel, in violation of the Sixth and Fourteenth Amendments, for failing to
investigate and present evidence of Pace’s substance abuse to his mental health
experts and thereafter to the jury during the penalty phase of his capital trial.
26
V.
Pace’s petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, which establishes a “general framework of substantial
deference” for reviewing “every issue that the state courts have decided[.]” Diaz
v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir. 2005). As
discussed before, a federal court may not issue a writ of habeas corpus setting
aside a state court’s denial of a federal constitutional claim unless the petitioner
demonstrates that the state court’s decision is flawed for one or both of the reasons
listed in 28 U.S.C. § 2254(d). The first reason is that the state court misapplied
the relevant holdings of the United States Supreme Court;18 the second reason is
that the state court’s findings of fact lack evidentiary support. See Newland v.
Hall, 527 F.3d 1162, 1184 (11th Cir. 2008). In assessing the state court’s findings
of fact, we “presume” those findings are “correct.” See id.; 28 U.S.C. §
2254(e)(1). If the petitioner contends that the findings of fact are not correct, he
bears the burden of establishing that they are not correct by “clear and convincing
18
It is clear that the relevant Supreme Court precedent for our purposes is Strickland v.
Washington, because that decision was handed down prior to the Supreme Court’s denial of
Pace’s petition for a writ of certiorari to review the supreme court’s denial of Rule 3.850 relief.
See generally Newland, 527 F.3d at 1197-1202.
27
evidence.”19 Id. (“The [petitioner] shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”).
Pace has never challenged the supreme court’s findings of fact as lacking
evidentiary support, either in litigating his petition in the district court or in his
brief on appeal.20 Nor does he challenge the United States Supreme Court
precedent the Florida Supreme Court applied in rejecting his ineffective assistance
claim. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, clearly controlled the issue
in this case and the state court applied it. His argument on appeal therefore boils
down to whether the supreme court misapplied Strickland in holding that defense
counsel made a reasonable strategic choice in opting to forego additional
investigation into Pace’s crack cocaine addiction and portraying Pace as a decent
human being rather than as a crack cocaine addict.
“Strategic choices made after thorough investigation of law and facts
relevant to possible options are virtually unchallengeable.” Strickland, 466 U.S. at
694, 104 S. Ct. at 2068. That is to say, “[c]ourts conduct a highly deferential
19
If the district court does not hold an evidentiary hearing on the claimant’s issues but
instead, relies on the state court’s findings of fact made following an evidentiary hearing on the
claim, the petitioner must rebut the presumption of correctness by pointing to clear and
convincing evidence in the record of that evidentiary hearing.
20
In the supreme court, Pace did not challenge as clearly erroneous the findings of fact
the circuit court made in denying his Rule 3.850 motion.
28
review of counsel’s performance and indulge the strong presumption that
counsel’s performance was reasonable.” Stewart, 476 F.3d at 1209 (internal
quotation marks omitted).
Here, the supreme court found that defense counsel made a reasonable
investigation into Pace’s drug abuse. Martin and Hall both questioned Pace
regarding his drug abuse and Pace told them that he abused crack cocaine and had
been doing so for months preceding the murder. Pace made the same statement to
Drs. Larson and Szmurlo. Szmurlo’s report to Hall stated that Pace was engaged
in “a rather heavy use of cocaine prior to the offense.” Hall asked members of
Pace’s family and friends about his drug abuse; he took the depositions of five of
the ten people who gave collateral counsel the affidavits that were submitted to
Drs. Crown and Herkov.21 He took the depositions of those most likely to know
about Pace’s behavior; they revealed nothing significant about Pace’s drug use,
though they were asked about it point blank.
Providing an affidavit that contradicts what the affiants previously said
under oath is not unknown:
21
Florida affords defendants in criminal cases essentially the same discovery rights
litigants in civil cases enjoy. In this case, defense counsel took 11 depositions in addition to the
extensive open-file discovery the prosecution provided.
29
It is common practice for petitioners attacking their death sentences
to submit affidavits from witnesses who say they could have supplied
additional mitigating circumstance evidence, had they been called. . . .
Such affidavits usually prove at most the wholly unremarkable fact
that with the luxury of time and the opportunity to focus resources on
specific parts of a made record, post-conviction counsel will
inevitably identify shortcomings in the performance of prior counsel.
Williams v. Head, 185 F.3d 1223, 1236 (11th Cir. 1999) (citations omitted).
Implicit in the supreme court’s rejection of Pace’s ineffective assistance
claim is the notion that Hall went far enough in investigating Pace’s crack cocaine
addiction. Hall could have deposed all ten, instead of just five, of the witnesses
who gave affidavits to collateral counsel. However, “[t]o be effective, a lawyer is
not required to pursue every path until it bears fruit or until all hope withers . . . .
[A] decision to limit investigation is accorded a strong presumption of
reasonableness.” Id. at 1236-37 (citations omitted). Given the statements Pace
made to defense counsel, the investigator, and Drs. Larson and Szmurlo—that he
was not under the influence of crack cocaine or alcohol when he commited the
Covington murder—and what the witnesses said on deposition, we agree with the
supreme court that it was reasonable for counsel to limit their investigation into
Pace’s substance abuse addiction. We also agree with the supreme court that
“[t]rial counsel cannot be deemed ineffective for failing to provide information to
30
[Drs. Larson and Szmurlo] that the affiants chose not to disclose to counsel when
originally questioned.”22
Moreover, as Hall himself recognized, presenting evidence of a defendant’s
drug addiction to a jury is often a “two-edged sword”: while providing a
mitigating factor, such details may alienate the jury and offer little reason to lessen
the sentence. For example, in Housel v. Head, 238 F.3d 1289, 1296 (11th Cir.
2001), we held that an attorney’s strategy to show a “family-friendly side of
[defendant], rather than dwelling on the evidence of [his] extensive drug use and
drinking with a sociopathic biker crowd” was reasonable because the jury would
likely not consider alcohol and drug use to be mitigating. Here, as in Housel, Hall
chose to draw upon the sympathy of the jurors by portraying Pace as a good
person who helped and cared for his family rather than as a crack cocaine addict
with poor hygiene and a paranoid personality while on drugs. The supreme court
correctly held that this was a reasonable strategy choice.23
22
We agree as well with the supreme court that the testimony of Dr. Herkov and Dr.
Crown was unconvincing. The “mere fact a defendant can find, years after the fact, a mental
health expert who will testify favorably for him does not demonstrate that trial counsel was
ineffective for failing to produce that expert at trial.” Davis v. Singletary, 119 F.3d 1471, 1475
(11th Cir. 1997).
23
We note in passing that neither collateral counsel nor the attorneys representing Pace in
these federal habeas proceedings have criticized Hall for presenting witnesses who described
Pace as a loving, caring person who came from a good, supportive family and was a decent
human being. Rather, their challenge is that Hall should have called witnesses to inform the jury
that Pace was a crack cocaine addict. Hall could have summoned Kenneth Bembo and Barry
31
VI.
There is no basis in this record to conclude that the Florida Supreme Court’s
decision denying Pace’s claim of ineffective assistance of counsel in the penalty
phase of the trial was contrary to, or involved an unreasonable application of,
clearly established Supreme Court precedent, or was based on an unreasonable
determination of the facts. We therefore resolve in the State’s favor the issue
presented in the certificate of appealability, and the district court’s decision
denying a writ of habeas corpus is, accordingly,
AFFIRMED.
Copeland to establish that Pace needed between $50 to $500 per day to maintain his crack
addiction. This would have left it to the jury to speculate as to where Pace, who was
unemployed, might have found such funds. If Hall had called those witnesses, we can only
imagine, as Hall probably did, how the State would have used the drug addiction evidence in
cross-examining Hall’s character witnesses and in arguing that the death sentence was the
appropriate penalty under the circumstances.
32
Pace v. McNeil
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2009-02-03
Citations: 556 F.3d 1211
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