Krawczuk v. Secretary, Florida Department of Corrections

Case: 15-15068 Date Filed: 10/18/2017 Page: 1 of 63

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 15-15068
________________________

D.C. Docket No. 2:13-cv-00559-JES-CM

ANTON J. KRAWCZUK,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________

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

(October 18, 2017)

Before HULL, WILLIAM PRYOR, and MARTIN, Circuit Judges.

HULL, Circuit Judge:

Florida death row inmate Anton Krawczuk appeals the district court’s denial

of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. At issue is
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Krawczuk’s claim that his counsel rendered ineffective assistance in the

investigation and presentation of mitigation evidence during his penalty phase

proceedings. After review and with the benefit of oral argument, we conclude that

the state court’s denial of Krawczuk’s ineffective trial counsel claim was not

contrary to, or an unreasonable application of, clearly established federal law, nor

was it based on an unreasonable determination of the facts. Accordingly, we

affirm the district court’s denial of Krawczuk’s § 2254 petition.

I. BACKGROUND

We first recount the evidence and procedural history.

A. Murder and Robbery

On September 12, 1990, Krawczuk and his roommate Billy Poirier brutally

murdered and robbed David Staker. Krawczuk v. State, 634 So. 2d 1070, 1071

(Fla. 1994) (“Krawczuk I”). Both Krawczuk and Poirier, who shared a home in

Lee County, Florida, were sexually involved with Staker during the months leading

up to the murder. Id. Krawczuk and Poirier planned the murder and robbery three

or four days in advance, arranging to carry out the crimes while visiting Staker at

his home. Id.

The night of the murder, Krawczuk and Poirier went together to Staker’s

home. Id. They brought gloves with them to use while carrying out the murder

and parked their vehicle some distance away from the victim’s house. After the

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three men watched television in the living room for twenty to thirty minutes,

Krawczuk suggested that they go to the bedroom. Id.

After a series of other events in the bedroom, Krawczuk retrieved his gloves,

began acting aggressively, and proceeded to choke Staker with both hands. Id.

Meanwhile, Poirier assisted by holding Staker’s mouth shut and pinching his nose

closed. Id. Staker fought back and even tried to hit Krawczuk with a lamp, but

Poirier was able to overtake Staker and wrestle the lamp away. Id. After almost

ten minutes, Staker relented. See id. Believing that Staker might be “faking it,”

however, Krawczuk twice poured drain cleaner and water into Staker’s mouth until

it overflowed. Id. Poirier then stuffed a washcloth into Staker’s mouth and

covered it with tape. Id. Krawczuk then bound Staker’s ankles, and the assailants

deposited the body in the bathtub. Id. It was later determined that Staker died of

asphyxia and strangulation.

In accordance with their established plan, Krawczuk and Poirier then stole a

number of Staker’s possessions, including television sets, stereo equipment, a

video recorder, five rifles, and a pistol. Id. They loaded these items into Staker’s

pickup truck, along with Staker’s body, and drove to the home of Gary Sigelmier,

who bought some of the stolen items and agreed to store the rest. Id. at 1071–72.

Krawczuk and Poirer then loaded Staker’s body into their own vehicle, abandoned

Staker’s pickup truck, and drove to a rural area, which Krawczuk had scouted

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before the murder, to dump Staker’s body. Id. at 1072. They discarded Staker’s

body in the woods and left. Id.

B. Investigation, Confession, and Indictment

In the days following the murder, Staker’s employer noticed that Staker had

not shown up for work or picked up his paycheck. Id. at 1071. She went looking

for Staker at his home, where she found the door open and what looked like the

scene of a robbery. Id. She immediately contacted Lee County authorities. Id.

On September 13, 1990, authorities found a body, later identified as

Staker’s, in a wooded area in Charlotte County, Florida. Id. Later that month,

Sigelmier reported to the Charlotte County Sheriff’s office that he bought property

stolen from Staker’s home and that he had acquired it from Krawczuk and Poirer.

Id.

On September 18, 1990, sheriff’s deputies from Lee County and Charlotte

County went to Krawczuk and Poirer’s home and took both men into custody. Id.

at 1071–72. After waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86

S. Ct. 1602 (1966), Krawczuk confessed to Staker’s murder. Krawczuk I, 634 So.

2d at 1072.

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On October 3, 1990, a grand jury indicted Krawczuk and Poirier for (1) first

degree premeditated murder, (2) first degree felony murder, and (3) robbery. 1

C. LeGrande’s Letter Regarding Aggravation and Mitigation

On March 8, 1991, Krawczuk’s appointed trial counsel, Barbara LeGrande,2

wrote a letter to Krawczuk explaining the importance of aggravating and

mitigating circumstances in a capital case. She informed Krawczuk that she had

reviewed his military records and had provided them to Dr. Richard C. Keown,

who conducted a psychiatric evaluation of Krawczuk. In her letter, LeGrande

included a list of all the statutory aggravating and mitigating factors that would be

considered by the jury and judge in determining whether to sentence Krawczuk to

death.

In her letter, LeGrande predicted the five aggravating factors the State would

try to prove and evaluated the likelihood that the State would succeed in proving

each one. LeGrande identified five mitigating factors that she intended to prove on

Krawczuk’s behalf and explained that proving most of them would require

Krawczuk to testify at trial. She explained to Krawczuk that facts—including pre-

planning the murder, pouring drain cleaner down the victim’s throat, and hiding

the body—would probably cause the jury to return a recommendation of death.

1
Codefendant Poirier pled guilty to second degree murder in exchange for a sentence of
thirty-five years’ imprisonment. Krawczuk I, 634 So. 2d at 1072 n.2.
2
At the time of her representing Krawczuk, Counsel LeGrande had been appointed
previously to seventeen capital cases.

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D. Dr. Keown’s Psychiatric Evaluation and Report

During the pretrial proceedings, counsel LeGrande sought funds for a

psychiatric evaluation to determine both Krawczuk’s sanity at the time of the

evaluation and his mental state at the time of Staker’s murder. The state trial court

granted Krawczuk’s motion and ordered an examination by Dr. Keown, who

prepared a psychiatric report of his findings.

In his April 9, 1991 report, Dr. Keown summarized Krawczuk’s brief history

of mental health treatment. When Krawczuk was eleven or twelve years old, he

attended court-ordered counseling because of his tendency to get into trouble and

run away from home. Later, during his time serving as a United States Marine,

Krawczuk was referred to a military psychiatrist because of Krawczuk’s “apathetic

and disinterested attitude about marine life, suicidal intentions, and conflicts with

military life.” Dr. Keown’s report noted that though the military psychiatrist

identified no evidence of neurosis, psychosis, brain syndrome, or homicidal or

suicidal thoughts, she did find that Krawczuk suffered from a mixed personality

disorder and exhibited traits like immaturity, passive-aggressiveness, and anti-

social personality patterns. LeGrande had forwarded a copy of Krawczuk’s

military records to Dr. Keown. Dr. Keown’s report highlighted that Krawczuk was

“of at least average intelligence with no significant cognitive deficits.”

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As to Krawczuk’s family history, Dr. Keown noted that Krawczuk had no

meaningful relationship with his father, that his mother was physically and

verbally abusive, and that his stepfather often beat him. Krawczuk told Dr. Keown

that his poor family life drove him to misbehavior, truancy, and even criminal

activity.

While serving in the Marines, Krawczuk was (1) disciplined for fighting and

misusing military equipment, (2) was court martialed for being away without

leave, and (3) served six months in military confinement. Krawczuk eventually

received an administrative separation from his military service. Krawczuk also

explained to Dr. Keown that “he would rather have death than twenty-five years in

jail” if he was found guilty.

Ultimately, Dr. Keown found that Krawczuk suffered from mild depressive

symptoms but did not require medication. Dr. Keown concluded that Krawczuk

was competent to stand trial and was sane at the time of Staker’s murder. By

May 8, 1991, Krawczuk had received Dr. Keown’s report from LeGrande.

E. Pretrial Motion to Suppress Confession

On July 8, 1991, Krawczuk filed a motion to suppress his confession, which

the state trial court denied. Id. The state trial court determined that Krawczuk’s

confession was admissible because it was given voluntarily after he was advised

of, and waived, his Miranda rights. Id.

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F. Change of Plea Hearing and Guilty Plea

On September 27, 1991, Krawczuk informed the state trial court that he

intended to plead guilty to all three counts in the indictment—first degree

premeditated murder, first degree felony murder, and robbery—and requested the

death penalty. Id. The state trial court held a hearing on Krawczuk’s change of

plea.

At the outset, Krawczuk informed the state trial court that he was prescribed

Elavil because he became increasingly nervous in the days leading up to the trial

and the medication had a calming effect to help him sleep. Id. at 1073. Krawczuk

took this medication the day of the hearing, but he could not feel its effects and, at

any rate, it did not prevent him from making a reasoned decision about his plea.

Krawczuk stated that he otherwise had never suffered from mental illness before.

During the plea colloquy, Krawczuk indicated that he understood that an

adjudication of guilt for murder could result in imposition of the death penalty.

Krawczuk acknowledged his understanding that the proceedings would include a

penalty phase to determine whether death would be an appropriate sentence. The

state trial court explained to Krawczuk that he was entitled to have a jury make this

determination during the penalty phase and that the jury’s recommendation carried

great weight.

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As to penalty phase proceedings, Krawczuk affirmed that he wished to

waive the jury determination in favor of a determination by the state trial court and

that he did not want to present any mitigating evidence. When asked why he

intended to plead guilty and waive the opportunity to present mitigating evidence,

Krawczuk answered that he “shouldn’t be allowed to live for what [he] did.”

At the plea hearing, the state trial court also addressed with Krawczuk

whether he was satisfied with the representation of LeGrande. By a letter to the

trial court dated April 29, 1991, Krawczuk had requested that LeGrande be

dismissed and that he be appointed different counsel. Krawczuk reversed course at

the hearing, however, stating that he was satisfied with LeGrande’s representation

and no longer wanted her removed. In addition, Krawczuk reported that he and

LeGrande had fully discussed the implications of his guilty plea.

Before the plea hearing, LeGrande had filed a motion for funds to hire a

mitigation expert, but Krawczuk dismissed that motion at the hearing. LeGrande

explained that she had advised Krawczuk not to plead guilty and was prepared to

present mitigating evidence. In particular, LeGrande planned to present the

testimony of Dr. Keown and Paul Wise, Krawczuk’s coworker, but Krawczuk

instructed her not to. LeGrande intimated that she would present additional

mitigating evidence, but she did not specify what evidence. LeGrande understood

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that, under Florida law, it was Krawczuk’s right to instruct her not to present

mitigation evidence.

The state trial court found that Krawczuk was competent, determined that

his guilty plea was entered freely and voluntarily, and adjudicated him guilty of

first degree premeditated murder and robbery.

G. Krawczuk’s Letter Following Sentencing Hearing

After the state trial court accepted his guilty plea, Krawczuk wrote a

September 30, 1991 letter to LeGrande reiterating his desire to be sentenced to

death and expressing hope that his guilty plea would help ensure his receiving the

death penalty:

As for my sentencing hearing, do you feel I can achieve my goal of
receiving the death sentence? From the sounds of it, [the prosecutor]
is very much for it as well, isn’t he? By my pleading guilty to the
charges, doesn’t that increase the aggravating circumstances against
me, and basically ensure my death penalty? After all, I am assisting
the prosecution in their proving of my total guilt, aren’t I?

In that same letter, Krawczuk lauded LeGrande’s representation, stating:

As far as I’m concerned, you have proven to be a shining example for
a lawyer, and I have nothing but praise for you [and] your work. You
have examined each and every aspect, as I have requested. In fact, I
feel that you have done far more than was actually required. If I have
put you in a bind by pleading guilty, it wasn’t my intention. Thank
you for remaining as my counsel, through this most critical of all
phases.

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H. Penalty Phase Proceedings

After Krawczuk’s guilty plea, in a separate hearing on October 29, 1991, the

State argued a penalty phase trial before a jury would be necessary despite

Krawczuk’s waiver. The state trial court agreed and ordered a jury trial, which

took place on February 4 and 5, 1992.

Before jury selection began, Krawczuk reiterated that he did not want

LeGrande to participate in any part of the penalty phase trial, including selecting

the jury, cross-examining the State’s witnesses, presenting mitigation evidence, or

making a closing argument. LeGrande again explained that she had advised

Krawczuk against this course of action. When asked why he had chosen this

course, Krawczuk replied: “Because I just feel basically twenty-five years as

opposed to a death penalty is one in the same, either way you look at it, your life is

gone.”

Later this colloquy occurred:

THE COURT: It’s my understanding from your remarks—and I don’t
want to put words in your mouth. But your response for taking this
course of action, or one of the principal reasons is that the sentence of
life with the minimum mandatory twenty-five years, um, is equally
abhorrent and undesirable to you, as would be a death sentence.
Would you consider them equivalent for your purposes?

MR. KRAWCZUK: Yes, Sir.

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After extensive colloquy, the state trial court determined that Krawczuk was

competent, that he understood the consequences of his decision, and that he was

sufficiently intelligent to make this decision.

After a jury was impaneled, the State gave its opening statement. Neither

LeGrande nor Krawczuk made any opening statement. The State then proceeded

with its case.

The State’s first witness was Staker’s roommate, Charles Staub, who

identified several of the items stolen on the night of the murder. The State then

called Pete Sbabori, an investigator with the Charlotte County Sheriff’s Office,

who had helped identify Staker’s body, had investigated the murder, and was

present for Krawczuk’s arrest.

Gary Sigelmier, the third witness, testified about how he met with Krawczuk

and Poirier on the night of the murder and agreed to buy and store the items stolen

from Staker’s house. The State also presented the testimony of Ed Tamayo, a

sergeant with the Lee County Sheriff’s Office, who investigated the report that

Staker was missing, recovered items stolen from Staker’s house, and was present

for Krawczuk’s arrest.

Dr. R. H. Imani, the Medical Examiner for the District of Charlotte County,

testified as an expert in forensic pathology. Dr. Imani performed the autopsy on

Staker’s body and determined that Staker died from asphyxia and strangulation.

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The State then called Michael Savage, a detective with the Charlotte County

Sheriff’s Office, who helped investigate Staker’s murder. Detective Savage was

present when Krawczuk waived his Miranda rights and confessed to killing Staker.

In the jury’s presence, the State played an audio tape of Krawczuk’s

confession, in which he explained in gruesome detail how he and Poirier pre-

planned and carried out Staker’s murder, robbed Staker’s house, and disposed of

Staker’s body. During his confession, when asked why he was motivated to kill

Staker, Krawczuk stated that he was “frustrate[ed] from the homosexual

community that thrive[d]” where he lived and that he “wanted to exterminate it.”

After the State rested and outside the presence of the jury, the state trial

court again raised the issue of whether Krawczuk intended to present any

mitigating evidence. Initially, Krawczuk indicated that he might allow the

introduction of Dr. Keown’s psychiatric report as mitigating evidence. LeGrande

explained that Krawczuk was willing to do this not because he wished to avoid the

death penalty but as a way of helping LeGrande discharge her duties as trial

counsel and to prevent his death sentence being overturned on appeal.

The state trial court hinted that it was inclined to allow Dr. Keown’s report

to be admitted into evidence, but Krawczuk abruptly changed his mind and

directed LeGrande not to introduce the report during his penalty phase case.

Krawczuk then stated, as before, that he did not wish to present any mitigating

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evidence or testify and that he was directing LeGrande not to make any closing

argument. Once again, LeGrande represented that she had strongly advised

Krawczuk against this course of action. Krawczuk also stated that he did not wish

for the record to reflect the reasons for his decision due to their “very personal”

nature.

As Krawczuk wished, the defense rested without presenting any evidence.

After the State’s final argument, the defense waived its opportunity to do the same.

At the end of the penalty phase, the jury unanimously recommended the death

penalty.

I. Spencer Hearing and Sentencing

On February 11, 1992, the state trial court held a hearing pursuant to

Spencer v. State, 615 So. 2d 688 (Fla. 1993). LeGrande again stated that she

intended to introduce Dr. Keown’s psychiatric report as mitigation evidence, but

Krawczuk directed her not to. Nonetheless, the state trial court indicated that, in

making its sentencing determination, it would take into account both Dr. Keown’s

psychiatric report and the presentence investigation report. Krawczuk I, 634 So.

2d at 1072.

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On February 13, 1992, the state trial court sentenced Krawczuk to death.3

Id. Based on the evidence, the state trial court found three statutory aggravating

factors: (1) the murder was committed in the course of a robbery or for pecuniary

gain; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder

was committed in a cold, calculated, and premeditated manner with no pretense of

moral or legal justification. Upon consideration of the presentence investigation

report and Dr. Keown’s psychiatric report, the state trial court found one statutory

mitigating factor: that Krawczuk had no significant history of prior criminal

activity.

J. Direct Appeal

On direct appeal, the Florida Supreme Court affirmed Krawczuk’s first-

degree murder conviction and death sentence. Id. at 1074. The Florida Supreme

Court concluded, inter alia, that sufficient evidence supported Krawczuk’s murder

conviction and that the state trial court adequately considered Dr. Keown’s

psychiatric report and the presentence investigation report in reaching its

sentencing decision. Id. at 1073.

The United States Supreme Court denied Krawczuk’s petition for writ of

certiorari. Krawczuk v. Florida, 513 U.S. 881, 115 S. Ct. 216 (1994) (mem.).

3
As to Krawczuk’s robbery conviction, the state trial court sentenced Krawczuk to fifteen
years’ imprisonment.

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II. STATE POSTCONVICTION PROCEEDINGS

On October 3, 1995, Krawczuk filed his initial motion for state

postconviction relief under Rule 3.850 of the Florida Rules of Criminal

Procedure.4 Krawczuk v. State, 92 So. 3d 195, 200 (Fla. 2012) (“Krawczuk II”).

On March 15, 2002, Krawczuk filed an amended 3.850 motion raising twenty four

claims. Id. After a hearing pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993),

the state 3.850 court granted an evidentiary hearing on several issues, including the

relevant Strickland issues. At the hearing, Krawczuk asserted LeGrande should

have developed and presented evidence to show: (1) his physically and emotionally

abusive childhood; (2) his substance and alcohol abuse; (3) that he was a good

worker at his maintenance job at McDonalds; (4) that he cooperated with

authorities; (5) that he was under a mental or emotional disturbance at the time of

the murder; and (6) that he was allowed to plead guilty to a lesser charge and

receive only a prison sentence. Id. We summarize the extent of this evidence at

the 3.850 hearing.

A. Family and Social Background

Krawczuk’s twin brother, Christopher Krawczuk, testified about his and

Krawczuk’s difficult childhood. They never had much of a relationship with their

4
Krawczuk filed his postconviction motion prior to the adoption of Rule 3.851 of the
Florida Rules of Criminal Procedure, which now governs postconviction motions filed by
petitioners who have been sentenced to death. See Fla. R. Crim. P. 3.851.

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father, who left in their infancy. Christopher had heard that their father was a

heavy drinker who was often violent with their mother, Patricia. For much of their

childhood, the boys were raised by their mother, who was especially physically

and verbally abusive toward Krawczuk and often doled out extreme punishments.

When Krawczuk got in trouble for playing with matches, for example, their mother

Patricia once forced him to hold his hand over a lit gas stove burner. She also used

to strike the boys with the metal wand of a vacuum cleaner. When Krawczuk

soiled himself, their mother made him walk down the street wearing a sign reading,

“I do my doodie in my pants every day.” LeGrande never contacted Christopher,

but he would have been willing to testify.

Santo Calabro, who married Krawczuk’s mother, also testified about

Krawczuk’s turbulent home life. Calabro felt that Krawczuk’s mother Patricia

directed most of her anger toward Krawczuk and punished him more severely than

her other children. She not only denied Krawczuk her affection but also subjected

him to violent beatings. Although willing to testify, Calabro was never contacted.

Krawczuk’s childhood friend, Todd Kaase, also witnessed the mother’s

violence to Krawczuk. When Krawczuk was around fifteen or sixteen years old,

he escaped his mother’s abuse and lived full time with Kaase’s family. During the

year Krawczuk lived with the Kaase family, Patricia never visited or even called to

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check on Krawczuk. Although never contacted, Kaase would have been willing to

testify.

Krawczuk’s mother Patricia also testified about Krawczuk’s upbringing.

She described Krawczuk’s father as a “brutal man” who drank and beat her while

she was pregnant with Krawczuk and Christopher. Patricia was verbally and

physically abusive toward all her children, but especially toward Krawczuk

because he was an unaffectionate and difficult child. Patricia tried to show him

love and affection, but Krawczuk was “aloof.”

Patricia had a hard time dealing with Krawczuk’s misbehavior. When

Krawczuk was only fifteen or sixteen years old, for instance, he was arrested for

stealing cars and spent time in a youth detention facility. Patricia beat Krawczuk

as a way of disciplining him for his “incorrigible” behavior.

When Patricia found out that Krawczuk was in jail for Staker’s murder, she

called LeGrande about visiting him. LeGrande seemed surprised to hear from

Patricia and never contacted her again regarding Krawczuk’s penalty phase trial.

Patricia was unsure whether she would have testified during Krawczuk’s penalty

phase, but she at least would have been willing to talk to LeGrande.

Paul Wise, Krawczuk’s former coworker and roommate, testified that

Krawczuk was a hard worker but was often moody and occasionally used

marijuana. Socially, Wise described Krawczuk as loner and a “follower.”

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Judith Nelson, Krawczuk’s former wife, testified that she and Krawczuk

married in 1986, had one child together, and divorced after about a year and a half

of marriage. While he was married to Nelson, Krawczuk used marijuana on a

daily basis and occasionally took speed. Krawczuk was not very affectionate and

had a hard time communicating with her, but Krawczuk also had a good side and at

times she enjoyed his company.

Krawczuk told Nelson about the issues he faced during his childhood,

including his mother Patricia’s abusive behavior. Nelson had a positive

relationship with Patricia during her marriage to Krawczuk, but things turned sour

after the divorce when Nelson decided to remarry.

Nelson did not think highly of Poirier, Krawczuk’s codefendant. Poirier and

Krawczuk spent a lot of time together, and Nelson eventually learned that they

spent some of this time “doing sex swap things” and burglarizing homes.

Although Nelson testified that Poirier always emulated Krawczuk’s behavior, she

felt that Poirier had more influence in their friendship and was the one who

organized their criminal activity.

B. Mental Health Experts

During the 3.850 hearing, Krawczuk also presented the testimony of two

mental health experts: Dr. Barry Crown and Dr. Faye Sultan.

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Dr. Crown, a psychologist, testified as an expert in neuropsychology with a

special focus on child abuse and drug addiction. Dr. Crown interviewed Krawczuk

and administered neuropsychological tests to determine the relationship between

his brain function and behavior. Dr. Crown did not review any background

materials or previous psychiatric information before evaluating Krawczuk.

Based on his evaluation, Dr. Crown found that Krawczuk had normal

intellectual functioning but poor intellectual efficiency, with the critical thinking

skills of a ten-year-old and the mental processing skills of a thirteen-year-old.

Dr. Crown also found that Krawczuk showed signs of organic brain damage, which

was likely related to developmental issues and was aggravated by head trauma and

drug and alcohol use. As to statutory mitigators, Dr. Crown opined that at the time

of Staker’s murder, Krawczuk was under the influence of an extreme mental or

emotional disturbance and lacked the capacity to conform his conduct to the

requirements of the law.

Dr. Sultan, also a psychologist, testified as an expert in the field of clinical

psychology with a focus on the assessment and treatment of victims of abuse.

Dr. Sultan met with Krawczuk on seven separate occasions, conducted formal

psychological testing, reviewed background materials provided by Krawczuk’s

postconviction counsel, reviewed Dr. Crown’s neuropsychological report, and

spoke with several of Krawczuk’s family members and friends.

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Through her background research, Dr. Sultan learned that Krawczuk

suffered severe childhood abuse and frequently ran away from home. Krawczuk

told Dr. Sultan that, when he was fifteen or sixteen years old, he was briefly

abducted, sexually abused, and beaten by a group of strangers. Dr. Sultan

diagnosed Krawczuk with a general cognitive disorder, obsessive-compulsive

disorder, and a general personality disorder. Dr. Sultan described Krawczuk as a

passive person who was easily influenced and exhibited traits consistent with

antisocial personality disorder.

Like Dr. Crown, Dr. Sultan determined that two statutory mitigating factors

applied at the time of Staker’s murder: Krawczuk was under the influence of an

extreme mental or emotional disturbance and he was unable to conform his

conduct to the requirements of the law. As to non-statutory mitigators, Dr. Sultan

found it relevant that Krawczuk: (1) was abandoned by his father; (2) was isolated

during childhood; (3) was not supervised during his childhood; (4) sustained

neuropsychological damage; (5) had mental disorders; (6) endured emotional and

physical abuse; (7) experienced depressive symptoms; and (8) suffered sexual

abuse.

When asked about Krawczuk’s decision not to present mitigating evidence

at the penalty phase, Dr. Sultan opined that Krawczuk’s mental disorders likely

influenced this decision. Dr. Sultan also felt, however, that Krawczuk’s thinking

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was not impaired by Elavil, the antidepressant medication he was taking at the time

of his plea hearing.

C. Barbara LeGrande

Trial counsel LeGrande testified about her representation of Krawczuk.

LeGrande recalled that Krawczuk asked her not to present mitigation evidence and

it was her understanding that Krawczuk was entitled to make that decision on his

own. At the time Krawczuk made this decision, LeGrande did not put on the

record the full list of witnesses and experts she would have called in mitigation.

As to her investigation of mitigating evidence, LeGrande explained that she

had done little mitigation research in advance of the plea hearing. Other than

obtaining a psychiatric evaluation and report from Dr. Keown, LeGrande did not

try to find other expert witnesses. LeGrande spoke briefly with Krawczuk’s

mother and grandmother, but she could not recall the content of these

conversations. LeGrande tried to gather more information about Krawczuk’s

family so that she could talk with them, but stated Krawczuk was not cooperative

with this effort and wanted to leave his family out of it.

LeGrande explained that, had Krawczuk allowed her to present a case at the

penalty phase, she would have engaged in further investigation of mitigating

evidence, including hiring experts and looking into other potential witnesses.

LeGrande tried to hire a mitigation expert to assist in this process, but at the plea

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hearing, Krawczuk dismissed her motion for expert funds. In light of Krawczuk’s

stated desire not to present a penalty phase case, LeGrande felt that she could not

“in good faith . . . represent to the Court that [she] needed a mitigation expert.”

LeGrande acknowledged that Poirier’s relative culpability for the murder

and influence over Krawczuk were relevant to Krawczuk’s penalty phase

proceedings. In fact, she discussed with Krawczuk the possibility of his taking the

stand to testify that Poirier had influenced him to participate in the murder. But

because Krawczuk was unwilling to testify at the penalty phase proceedings, she

did not discuss this relative culpability issue with Krawczuk in great detail. At any

rate, because Poirier pled guilty to the murder months after Krawczuk pled guilty,

LeGrande had no way of knowing at the time of Krawczuk’s penalty phase

whether Poirier would receive a sentence that was proportional to his culpability

and thus had no reason to explore this issue as it related to mitigation.

Ultimately, because Krawczuk did not wish to make a case at the penalty

phase, LeGrande was unable to explain to Krawczuk the details of what mitigating

evidence might have been presented on his behalf. Instead, she could only provide

Krawczuk with a general conceptual explanation of mitigating evidence and how it

might help him avoid the death penalty.

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D. State’s Evidence

For its part, the State introduced two exhibits. First, the State introduced the

psychiatric report of Dr. Robert J. Wald, who performed a psychiatric evaluation to

determine whether Krawczuk was competent to testify as a witness in codefendant

Poirier’s criminal case. Dr. Wald examined Krawczuk in March 1992, after the

state trial court sentenced Krawczuk to death.

Dr. Wald found that Krawczuk’s intelligence was normal or slightly above

and that he exhibited no signs of hallucinations, delusional thinking, paranoia, or

suicidal or homicidal thoughts. Krawczuk told Dr. Wald that he felt the

punishment he received fit the crime for which he was convicted and that he stood

to gain nothing by testifying against Poirier. Dr. Wald concluded that Krawczuk

was competent to testify in Poirier’s criminal proceedings.

Second, the State introduced into evidence the transcript of a deposition

given by Dr. Keown. Among other things, Dr. Keown stated that, during his

meeting with him, Krawczuk emphasized that Poirier led the effort to rob and kill

Staker and that he was merely a follower. In Dr. Keown’s clinical opinion,

Krawczuk was “overstating” Poirier’s influence over him.

III. STATE POSTCONVICTION COURT’S DENIAL OF 3.850 MOTION

In a comprehensive order dated January 25, 2010, the state postconviction

court denied Krawczuk’s 3.850 motion for postconviction relief. As relevant to

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this appeal, the state 3.850 court rejected Krawczuk’s claim that LeGrande

rendered ineffective assistance in the investigation and presentation of mitigating

evidence.

At the outset, the state 3.850 court found the testimony of Krawczuk’s two

mental health experts—Dr. Crown and Dr. Sultan—to be incredible. As to

Dr. Crown’s conclusions that, at the time of the murder, Krawczuk was under the

influence of an extreme mental or emotional disturbance and was unable to

conform his conduct to the requirements of the law, the state 3.850 court found that

the weight of the evidence so strongly refuted this claim as to render it incredible:

[T]he other evidence including, particularly, Mr. Krawczuk’s
confession but also including Mr. Krawczuk’s letters, the statement
and deposition of Gary Sigelmier, the statement of Mr. Poirier, the
testimony of the family members and friends, the other mental health
professionals, reports and depositions, and other credible evidence in
this case so resoundingly refute this opinion as to discredit [it] as well
the related opinion that Mr. Krawczuk suffers from organic brain
damage.

The state 3.850 court also rejected Dr. Sultan’s conclusions that Krawczuk

was under the influence of an extreme mental or emotional disturbance and was

unable to conform his conduct to the requirements of the law. Although Dr. Sultan

testified that she relied extensively on Dr. Crown’s evaluations in reaching her own

conclusions, the record shows that Dr. Sultan’s last meeting with Krawczuk

occurred well before Dr. Crown evaluated him. The state 3.850 court also found

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that Dr. Sultan’s conclusions were contrary to the weight of the evidence, which

strongly indicated that these statutory mitigating factors did not apply.

A. Krawczuk’s Legitimate Waiver

Regarding Krawczuk’s decision not to present a penalty phase case, the state

3.850 court recognized that under Florida law, “[a] competent defendant may

waive presentation of mitigation evidence.” See Hojan v. State, 3 So. 3d 1204,

1211 (Fla. 2009) (“Competent defendants who are represented by counsel maintain

the right to make choices in respect to their attorneys’ handling of their cases. This

includes the right to either waive presentation of mitigation evidence or to choose

what mitigation evidence is introduced by counsel.”). Florida law also provides

that, where a defendant seeks to waive the presentation of evidence against the

advice of counsel, counsel must inform the trial court on the record of the

defendant’s decision and indicate what mitigation evidence, if any, is available to

be presented. Koon v. Dugger, 619 So. 2d 246, 250 (Fla. 1993). The trial court

must then require the defendant to confirm on the record that his counsel had

discussed these matters with him and that he nonetheless intended to waive the

presentation of mitigation evidence. Id.

The state 3.850 court explained, however, that Koon was decided after

Krawczuk’s sentencing hearing in February 1992 and thus did not bind LeGrande

during her representation. In any event, the state 3.850 court noted that the rule

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announced in Koon is a creature of state law only and that this procedure likely is

not required as a matter of federal law. See Anderson v. Sec’y, Dep’t of Corr., 462

F.3d 1319, 1330–31 (11th Cir. 2006) (“Although Koon requires counsel to state on

the record what the evidence in mitigation would be . . . , ‘[a] state’s interpretation

of its own laws or rules provides no basis for federal habeas corpus relief, since no

question of constitutional nature is involved.’” (second alteration in original)

(citing McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992))). It further

found that Krawczuk was and is mentally competent and validly waived the

presentation of mitigation evidence, stating:

at the time of this case no particular form of record inquiry was
required for a defendant to waive mitigation (waive the presentation
of evidence) and as it is not subject of serious dispute that Mr.
Krawczuk was, and is, a mentally competent man . . . who was
counseled by his attorney and asked and inquired of by the court and
the prosecutor on multiple occasions . . . regarding his decision to
waive mitigation[,] the basics [sic] requirements for a valid record
waiver as they existed at the time of this case have been met.

B. Ineffective Counsel

Turning to Krawczuk’s ineffective counsel claim, the state 3.850 court

discussed the legal principles in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052 (1984). It noted that Strickland requires the petitioner to show both that

counsel’s performance was deficient under the then-prevailing professional norms

and that petitioner’s case was prejudiced such that, but for counsel’s alleged errors,

the result of the proceedings would have been different.

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As to counsel’s performance, the state 3.850 court analyzed LeGrande’s

representation with respect to her investigation of several mitigation factors.

Regarding family and background evidence, it found that before Krawczuk pled

guilty, LeGrande had prepared two mitigation witnesses and that Krawczuk

“appear[ed] . . . reasonably aware of what [they] would testify to.” It also found

that at the point of entering his plea, Krawczuk “was not just passively not

cooperating with any investigation for mitigation but he was active in directing his

counsel not to pursue mitigation.”

The state 3.850 court stated that the “only excuse that [would] be recognized

for failing to investigate family background for mitigation [was] direct unequivocal

instructions from the client not to.” It determined that LeGrande’s performance

was deficient for failing to investigate Krawczuk’s family history and failing to

obtain clear directions from Krawczuk not to pursue family history, stating:

[a]lthough it is probable that given Mr. Krawczuk’s position counsel
acted reasonably in discontinuing an investigation into his family
history the case law is extremely compelling on the need for an
unequivocal expression from a defendant not to pursue this type of
information. Permitting an investigation for mitigation and refusing
to allow presentation of mitigation are closely related but different. In
this case the record will not support the unequivocal direction to not
investigate the court believes [was] required by the law as it existed at
the time in question.

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As to all other aspects of LeGrande’s investigation—including relative culpability,

substance abuse, work ethic, and mental health—the state 3.850 court found no

deficiencies in LeGrande’s representation.

As to Strickland prejudice, the state 3.850 court outlined the requirements to

establish prejudice where a defendant, like Krawczuk, waived the presentation of

mitigating evidence. In such circumstances, the state 3.850 court found that the

Krawczuk must make three showings: (1) that, had trial counsel conducted a

reasonable investigation, she would have discovered mitigating evidence; (2) a

reasonable probability that, if he had been advised more fully of the available

mitigation evidence, the petitioner would have instructed trial counsel to present

the evidence at the penalty phase; and (3) a reasonable probability that, had the

available mitigation evidence been presented, the jury would have recommended a

life sentence.

As to the first showing, the state 3.850 court determined that obtaining

physical and emotional abuse evidence from Krawczuk’s childhood would have

been difficult, although not impossible, for LeGrande. Specifically, it noted that

this would have required LeGrande to “rely on Mr. Krawczuk and[,] given his

expressed desire not to involve his family[,] that most likely would have been a

dead end.” However, “on this record” it could not find that the evidence of family

history would not have been “discovered had counsel done a reasonable

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investigation.” It found that all other evidence of mitigation was known to,

developed by, or unhelpful for LeGrande.

As to the second showing, the state 3.850 court found that Krawczuk had not

shown “a reasonable probability that if he had been more fully advised about the

potential mitigation evidence[,] he would have authorized trial counsel to present

such evidence at either the penalty phase trial or at the Spencer hearing.” It noted

that “[p]robably the best indication of how Mr. Krawczuk would have treated other

mitigation was how he treated the known mitigation.” Namely, Krawczuk was

aware of some available mitigating evidence, including Dr. Keown’s report and

Paul Wise’s testimony, but directed LeGrande not to develop it and, after initially

conceding admission of Dr. Keown’s report, commanded her not to present any

mitigation evidence at the penalty phase.

In support of his desire not to present mitigation evidence, Krawczuk

“indicated he had personal reasons . . . [that he] did not want to put . . . on the

record.” Likewise, his original acquiescence to introducing Dr. Keown’s report

was “not a desire that mitigation be considered but that a death sentence not be

reversed for a failure to present mitigation.” As additional evidence of his

steadfast conviction, Krawczuk waived all of his defensive motions, including

LeGrande’s motion for a mitigation specialist. In light of the firmness with which

Krawczuk insisted that LeGrande not present a case at the penalty phase, the state

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3.850 court determined that the discovery of more evidence would not have

changed Krawczuk’s decision.

As to the third showing, whether Krawczuk established a reasonable

probability that the new mitigating evidence would have changed the outcome of

the proceedings, the state 3.850 court balanced the aggravating and mitigating

evidence. It found that the State had proven these aggravating factors beyond a

reasonable doubt: (1) the murder was committed during a robbery and for

pecuniary gain; (2) the murder was especially heinous, atrocious, or cruel; and (3)

the murder was cold, calculated, and premeditated without any pretense of moral

or legal justification. Though the state 3.850 court found no statutory mitigating

factors, it did find these non-statutory mitigators: (1) Krawczuk endured an

abusive childhood; (2) Poirier received a lesser sentence; (3) Krawczuk had a

history of drug and alcohol use; (4) Krawczuk was a hard-working employee; (5)

Krawczuk had a less-than-extreme mental or emotional disturbance; and (6)

Krawczuk cooperated with law enforcement.

Weighing these factors, the state 3.850 court determined that Krawczuk

failed to show a reasonable probability that, had the additional mitigating evidence

adduced at the postconviction hearing been presented at the penalty phase, the

proceedings would have resulted in a sentence of life imprisonment. It noted twice

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its confidence “beyond a reasonable doubt that a sentence of death would have

been the result regardless.”

IV. FLORIDA SUPREME COURT AFFIRMS DENIAL OF
3.850 MOTION
On appeal, the Florida Supreme Court affirmed the state postconviction

court’s denial of Krawczuk’s 3.850 motion for postconviction relief. 5 Krawczuk

II, 92 So. 3d at 209. As to Krawczuk’s claim that LeGrande rendered ineffective

assistance of counsel in the investigation and presentation of mitigation evidence,

the Florida Supreme Court concluded that the state 3.850 court properly denied this

claim. Id. at 203.

Before addressing the merits of this claim, the Florida Supreme Court

correctly identified the principles governing ineffective assistance of counsel

claims. The Florida Supreme Court explained that, to succeed on such a claim, the

petitioner must show both deficiency and prejudice:

First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.

Id. at 202 (quoting Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010)).

5
Krawczuk also filed with the Florida Supreme Court a petition for a writ of habeas
corpus, which it denied. Krawczuk II, 92 So. 3d at 209. Though this habeas petition included an
ineffective counsel claim, it related only to his appellate counsel’s failure to raise on direct
appeal the issue of disparate treatment. Id. at 208.

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A. Performance

The Florida Supreme Court also explained what is required to show that

counsel’s performance was deficient, stating:

There is a strong presumption that trial counsel’s performance was not
deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair
assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct.
2052. The defendant carries the burden to “overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (quoting Michel v. Louisiana,
350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial
scrutiny of counsel’s performance must be highly deferential.” Id.
“[S]trategic decisions do not constitute ineffective assistance of
counsel if alternative courses have been considered and rejected and
counsel’s decision was reasonable under the norms of professional
conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000).

Id. at 202–03 (quoting Johnson v. State, 63 So. 3d 730, 737 (Fla. 2011)).

Regarding counsel’s obligation to investigate and prepare mitigating

evidence, the Florida Supreme Court explained that assessment of the

reasonableness of counsel’s investigation must include “a context-dependent

consideration of the challenged conduct” from counsel’s perspective, stating:

[O]ur principal concern in deciding whether [counsel] exercised
“reasonable professional judgmen[t]” is not whether counsel
should have presented a mitigation case. Rather, we focus on
whether the investigation supporting counsel’s decision not to
introduce mitigating evidence . . . was itself reasonable. In
assessing counsel’s investigation, we must conduct an objective
review of their performance, measured for “reasonableness
under prevailing professional norms,” which includes a context-

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dependent consideration of the challenged conduct as see[n]
“from counsel’s perspective at the time.”

Id. at 203 (quoting Orme v. State, 896 So. 2d 725, 731 (Fla. 2005)).

The Florida Supreme Court noted that, in cases like Krawczuk’s

where the defendant instructs counsel not to present mitigating evidence,

“trial counsel could not be deemed ineffective for following their client’s

wishes not to present mitigation.” Id. at 205; Brown v. State, 894 So.2d 137,

146 (Fla. 2004) (“An attorney will not be deemed ineffective for honoring

his client’s wishes.”). At the outset of its decision, the Florida Supreme

Court set forth some of the findings that the Florida Supreme Court had

affirmed on direct appeal. As to those findings, the Florida Supreme Court

noted in particular: that Krawczuk “informed the court that [he] wished to

waive the penalty proceeding,” that he “forbade [his counsel] from

presenting evidence on his behalf” during the penalty phase, and that he

“refused to allow counsel to present” the evidence of his family history,

which was available from Dr. Keown’s report. Krawczuk II, 92 So.3d at

199, 205.

The Florida Supreme Court also stated that “the record demonstrates

that Krawczuk would not permit his attorney to involve his family.” Id. at

205. It stated that “counsel’s ability was limited by the defendant’s desire

not to include his family.” Id. As a result, the Florida Supreme Court

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concluded that “counsel’s actions could not be deemed ineffective.” Id.

(citing Brown, 894 S.2d at 146). Thus, the Florida Supreme Court did not

agree with the 3.850 court that trial counsel’s performance was deficient as

to family history.

B. Prejudice

The Florida Supreme Court also found that Krawczuk had not

established prejudice. Although there was significant mitigation evidence

available that LeGrande did not discover, the Florida Supreme Court

concluded that it was “equally clear that Krawczuk repeatedly insisted that

counsel not pursue mitigation and not involve his family.” Id. The Florida

Supreme Court stated that “the postconviction court found that the

information that would have been presented by the family was available

through Dr. Keown’s report, which Krawczuk also refused to allow counsel

to present” and that “[b]ecause of Krawczuk’s instructions to counsel not to

involve his family, we find that Krawczuk cannot establish prejudice.” Id.

In other words, Krawczuk had Dr. Keown’s report, which discussed

his childhood abuse and family history, but Krawczuk had refused to allow

LeGrande to present even this evidence. Thus, the Florida Supreme Court

determined that Krawczuk could not establish the requisite prejudice to

succeed on this claim about LeGrande’s investigation and presentation of

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mitigating evidence. Id. The Florida Supreme Court did not address the

state 3.850 court’s alternative conclusion that all the additional mitigation

evidence, even if introduced at trial, would not have led to a different

sentence. See id.

V. FEDERAL HABEAS PROCEEDINGS

On July 18, 2013, Krawczuk filed a petition in the United States District

Court for the Middle District of Florida seeking a writ of habeas corpus under 28

U.S.C. § 2254. The petition asserted four claims, including that LeGrande

rendered ineffective assistance of counsel in the investigation and presentation of

mitigating evidence.

On August 15, 2015, the district court denied Krawczuk’s habeas petition in

its entirety, including this ineffective counsel claim. The district court did not

discuss whether LeGrande’s performance was deficient and addressed only

prejudice.6 After reviewing the state courts’ decisions and all of the evidence, the

district court concluded that Krawczuk had not established prejudice because

(1) “[t]he state court reasonably concluded that [Krawczuk] gave LeGrande

unmistakable instructions not to present mitigation evidence” and (2) “[n]othing in

the record suggests that [Krawczuk] would have changed his directions to counsel

6
See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (holding that a court deciding a claim
of ineffective assistance of counsel need not decide the issue of deficiency if the claim can be
disposed of solely on the basis of lack of prejudice).

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had he been more full informed about mitigating evidence.” The district court

pointed out that Krawczuk offered no evidence during the postconviction

proceedings indicating that, had he been made aware of all mitigating evidence, he

would have instructed counsel differently.

Accordingly, because the Florida Supreme Court had a reasonable basis to

deny Krawczuk relief, the district court denied Krawczuk’s ineffective counsel

claim. It also denied Krawczuk a certificate of appealability (“COA”). Krawczuk

timely filed a notice of appeal.

This Court granted Krawczuk a COA as to one issue: “Whether the Florida

state courts’ ruling that counsel provided constitutionally effective assistance in

investigating and presenting mitigation evidence at the penalty phase hearing was

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

was based on an unreasonable determination of the facts in light of the evidence

presented.”7

VI. STANDARD OF REVIEW

Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), our review is limited. A federal court may

only grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the

7
To the extent that Krawczuk’s brief argues that he was denied competent and
independent mental health assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087
(1985), such a claim is outside the scope of the COA and we do not address it. See Rivers v.
United States, 777 F.3d 1306, 1308 n.1 (11th Cir. 2015).

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merits in a state court where the state court’s decision “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “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).

A state court’s decision rises to the level of an unreasonable application of

federal law only where the ruling is “objectively unreasonable, not merely wrong;

even clear error will not suffice.” Virginia v. LeBlanc, 582 U.S. __, __, 137 S. Ct.

1726, 1728 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S. __, __, 135 S.

Ct. 1372, 1376 (2015) (per curiam)). This standard is “meant to be” a difficult one

to meet. Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011).

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

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

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012) (quoting

Hardy v. Cross, 565 U.S. 65, 66, 132 S. Ct. 490, 491 (2011) (per curiam)).

Because we review Krawczuk’s ineffective assistance claim through the lenses of

both Strickland and AEDPA, our analysis is “doubly” deferential. Harrington, 562

U.S. at 105, 131 S. Ct. at 788.

Pursuant to AEDPA, we may only grant relief where the state court’s ruling

contained an error so clear that fair-minded people could not disagree about it.

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Wright v. Sec’y, Fla. Dep’t of Corr., 761 F.3d 1256, 1277 (11th Cir. 2014). “We

review de novo the district court’s decision about whether the state court acted

contrary to clearly established federal law, unreasonably applied federal law, or

made an unreasonable determination of fact.” Trepal, 684 F.3d at 1107 (quoting

Johnson v. Upton, 615 F.3d 1318, 1330 (11th Cir. 2010)).

VII. STRICKLAND PRINCIPLES

On appeal, Krawczuk contends that the Florida Supreme Court unreasonably

applied Strickland and its progeny and made unreasonable factual determinations

in denying his ineffective counsel claim as to LeGrande’s investigation and

presentation of mitigation evidence. Under Strickland, Krawczuk must show

(1) that his attorney’s performance was deficient and (2) that this deficient

performance prejudiced his defense. 466 U.S. at 687, 104 S. Ct. at 2064. We

discuss these Strickland principles with emphasis on decisions where a defendant

instructed counsel not to present mitigation evidence.

A. Performance

In determining whether counsel’s performance was deficient, we ask

whether counsel exhibited “objectively reasonable attorney conduct under

prevailing professional norms.” Pooler v. Sec’y, Fla. Dep’t of Corr., 702 F.3d

1252, 1269 (11th Cir. 2012) (quoting Johnson v. Upton, 615 F.3d 1318, 1330 (11th

Cir. 2010)). The relevant inquiry is “whether, in light of all the circumstances, the

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identified acts or omissions were outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. We must

“indulge a strong presumption” that counsel exercised reasonable professional

judgment. Pooler, 702 F.3d at 1269 (quoting Rhode v. Hall, 582 F.3d 1273, 1280

(11th Cir. 2009)).

In death penalty cases, trial counsel is obliged to investigate and prepare

mitigation evidence for his client. See Porter v. McCollum, 558 U.S. 30, 39–40,

130 S. Ct. 447, 453 (2009). Because the attorney acts based on information he

receives from the defendant, however, whether counsel acted reasonably depends

in part on the actions or statements of the defendant. See Strickland, 466 U.S. at

691, 104 S. Ct. at 2066 (“The reasonableness of counsel’s actions may be

determined or substantially influenced by the defendant’s own statements or

actions.”). Thus, “ʻwhat investigation decisions are reasonable depends critically’

upon the information the defendant furnishes to his counsel.” Pooler, 702 F.3d at

1269 (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). “[T]he scope of the

duty to investigate mitigation evidence is substantially affected by defendant’s

actions, statements, and instructions.” Cummings v. Sec’y, Dep’t of Corr., 588

F.3d 1331, 1357 (11th Cir. 2009).

When a competent defendant clearly instructs counsel either not to

investigate or not to present any mitigating evidence, “the scope of counsel’s duty

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to investigate is significantly more limited than in the ordinary case.” Id. at 1358–

59. This Court has recognized, and we now hold, that “the duty to investigate

‘does not include a requirement to disregard a mentally competent client’s sincere

and specific instructions about an area of defense and to obtain a court order in

defiance of his wishes.’” Id. at 1357 (quoting Rutherford v. Crosby, 385 F.3d

1300, 1313 (11th Cir. 2004)); see Blankenship v. Hall, 542 F.3d 1253, 1277 (11th

Cir. 2008) (“Significant deference is owed to failures to investigate made under a

client’s specific instructions not to involve his family.”); Newland v. Hall, 527

F.3d 1162, 1202 (11th Cir. 2008) (“We have also emphasized the importance of a

mentally competent client’s instructions in our analysis of defense counsel’s

investigative performance under the Sixth Amendment.”).

B. Prejudice

To establish prejudice, the defendant must show that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068. When deciding whether the defendant has shown prejudice, we must

“evaluate the totality of the available mitigation evidence—both that adduced at

trial, and the evidence adduced in the habeas proceeding,” and reweigh it with the

aggravating evidence. Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct. 1495,

1515 (2000).

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However, “[a] competent defendant’s clear instruction not to investigate or

present mitigation evidence also impacts the prejudice prong of the ineffective

assistance test.” Cummings, 588 F.3d at 1359. If the defendant affirmatively

“instructed his counsel not to offer any mitigating evidence,” then “counsel’s

failure to investigate further could not have been prejudicial under Strickland.”

Schriro v. Landrigan, 550 U.S. 465, 475, 127 S. Ct. 1933, 1941 (2009).

Rather, to establish Strickland prejudice after instructing counsel not to

present mitigating evidence at trial, we hold that a capital defendant must satisfy

two requirements: (1) establish a reasonable probability that, had he been more

fully advised about the available mitigation evidence, he would have allowed trial

counsel to present that evidence at the penalty phase; and (2) establish a reasonable

probability that, if such evidence had been presented at the penalty phase, the jury

would have concluded that the balance of the aggravating and mitigating factors

did not warrant the death penalty. Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944;

see Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1266 (11th Cir. 2014)

(concluding that a capital defendant who instructs his counsel not to present

mitigating evidence must satisfy these two requirements to show prejudice);

Gilreath, 234 F.3d at 551–52 (adopting these two requirements even before the

Landrigan decision). The defendant bears the burden of establishing both

elements. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069; Pope, 752 F.3d at 1267.

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We now apply these Strickland and Landrigan principles, which in

Krawczuk’s case begins and ends with prejudice. Strickland, 466 U.S. at 697, 104

S. Ct. at 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice . . . that course should be followed.”).

C. The Florida Supreme Court Reasonably Determined Krawczuk
Instructed LeGrande Not to Present Mitigating Evidence

Krawczuk’s instructions to his counsel regarding the penalty phase are

pivotal to our prejudice analysis. We explain why the Florida Supreme Court

reasonably determined that Krawczuk instructed his counsel not to present

mitigating evidence.

The record evidence overwhelmingly supports the state court’s decision.

For starters, at three separate judicial proceedings, Krawczuk repeatedly insisted

that he did not want mitigation evidence presented. For example, at his plea

hearing, Krawczuk clearly communicated his desire not to present mitigating

evidence and affirmatively dismissed his counsel’s motion for funds to hire a

mitigation expert. At that same hearing, LeGrande stated that Krawczuk had

instructed her not to present mitigating evidence despite her strong advice to the

contrary. LeGrande told the court she had prepared two mitigation witnesses but

Krawczuk had forbidden her to call these witnesses and was “thwarting [her]

efforts to defend [him] in the way [she felt was] necessary.” The state trial court

was convinced that Krawczuk was competent during this hearing.

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At this time, Krawczuk had Dr. Keown’s report that contained details of

Krawczuk’s abusive childhood, military psychiatric report, and past encounters

with the law. LeGrande informed the court she had told Krawczuk that she

believed it was in his best interest to call Dr. Keown but Krawczuk had

commanded her not to call him.

After the plea hearing, in a letter dated September 30, 1991 to LeGrande,

Krawczuk again confirmed that he did not wish to present mitigating evidence,

stating that his goal was to receive a death sentence. Krawczuk’s letter indicated

his understanding that he could more easily secure a death sentence by ensuring

that the aggravating circumstances outweighed any evidence in his favor.

The penalty phase before the jury was no different, as Krawczuk once again

averred that he wished not to present mitigating evidence and that he was

instructing LeGrande not to participate in the penalty phase proceedings. The one

concession Krawczuk made to his lawyer’s wishes was calculated to ensure a death

sentence. Krawczuk allowed LeGrande to make a closing argument but only “for

the purpose of preventing a reversal on the fact that no mitigating circumstances

[were] introduced.” Krawczuk also declined to testify.8

8
Before the jury entered the courtroom at the penalty hearing on February 5, 1992,
prompting by the court led Krawczuk to state that he was “willing to let [LeGrande]” present
mitigating evidence, and that “part of [Dr. Keown’s] report would be good.” But this concession
was quickly followed by a strong caveat. LeGrande relayed to the court that Krawczuk’s “desire
to have [the report] admitted has nothing to do with attempting to sway the jury on mitigating

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Once again, at the subsequent Spencer sentencing hearing before the trial

judge, LeGrande stated that Krawczuk had instructed her not to present any

mitigating evidence. Krawczuk again refused to introduce Dr. Keown’s report or

provide his own comments in support of mitigation.

In light of this substantial evidence, the Florida Supreme Court’s

determination, that Krawczuk instructed his counsel not to present mitigating

evidence, was not an unreasonable determination of the facts. Given this finding,

we next explain why the Florida Supreme Court’s ultimate decision—that

Krawczuk had not established prejudice—was not contrary to or an unreasonable

application of clearly established law.

D. Krawczuk Did Not Satisfy Landrigan’s First Requirement

To establish prejudice, Krawczuk must satisfy the first Landrigan

requirement: a reasonable probability that, had he been more fully advised about

the available mitigation evidence, he would have allowed counsel to present it on

circumstances.” Krawczuk still “desire[d] to have the death penalty imposed . . . [and was] just
attempting to prevent tying [LeGrande’s] hands to the point . . . that the Appellate Court would
overturn a death penalty.”
When questioned by the trial court, Krawczuk confirmed his strategy. Regardless, this
permission was short lived. When the court agreed to admit Dr. Keown’s report, Krawczuk told
LeGrande that he had changed his mind. The court then asked Krawczuk if “that [was his] final
word on the matter,” to which Krawczuk responded, “Yes, it is.” Krawczuk also affirmatively
replied when the court again sought clarification that Krawczuk did not “want to present any
mitigating evidence [or] . . . testify as to additional mitigating evidence.” Finally, Krawczuk
confirmed that he understood the consequences of his actions and that he wished to waive
closing argument.

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his behalf. Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944; Strickland, 466 U.S. at

696, 104 S. Ct. at 2069. Krawczuk’s pattern of obstruction gave the Florida

Supreme Court every reason to determine that Krawczuk could not show prejudice.

Krawczuk rejected his counsel’s presentation of mitigation evidence at three

separate judicial proceedings, openly sought the death penalty, and repeatedly

undercut LeGrande’s strategy. His actions were not taken in ignorance. LeGrande

had advised Krawczuk of the importance of mitigation evidence, and Krawczuk

possessed Dr. Keown’s report.

Later, during the 3.850 proceedings, Krawczuk presented no evidence

indicating that, had he been made aware of the available mitigation evidence

before the penalty phase, he would have allowed LeGrande to present it. Notably,

the record is devoid of any affidavit, deposition, or statement from Krawczuk,

LeGrande, the mental health experts, or Krawczuk’s friends and family even

suggesting that Krawczuk would have instructed LeGrande differently had he been

fully aware of all the available mitigation evidence.

In this appeal, Krawczuk contends that the Florida Supreme Court

unreasonably applied Strickland by overlooking evidence indicating that there was

a reasonable probability that he would have allowed the presentation of mitigation

evidence. Krawczuk points to evidence showing that he cooperated with

Dr. Keown, volunteered details about his military service, signed releases for

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counsel to obtain psychological information about his military service, offered

general information about his wife and family, and at one point wavered slightly

about mitigation evidence. As this Court recognized in Pope, however, the

petitioner’s burden to prove prejudice, as required under Strickland and Landrigan,

cannot be met with evidence showing merely that the petitioner cooperated with

counsel’s efforts to investigate his personal background and that he at one point

was open to presenting some mitigation evidence. Pope, 752 F.3d at 1266–67.

Rather, Krawczuk must “affirmatively establish” that he would have allowed

the presentation of the undiscovered mitigation evidence. Id. at 1267. To hold that

evidence of cooperation alone is sufficient would be to “reverse[] [Krawczuk’s]

burden.” Id. The record as a whole gave the Florida Supreme Court ample

grounds to conclude that Krawczuk had no interest in actually employing any

mitigation evidence. He repeatedly stated that he sought the death penalty, wished

to avoid reversal on appeal, and opposed the presentation of mitigation evidence.

If anything, Krawczuk’s early cooperation in producing mitigation evidence makes

his later suppression of this information all the more voluntary and meaningful.

Simply put, because Krawczuk did not offer evidence affirmatively showing

that he would have been willing to allow LeGrande to present the mitigation

evidence that was uncovered during the 3.850 proceedings, he has not satisfied

Landrigan’s first requirement and is not entitled to habeas relief. See Landrigan,

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550 U.S. at 481, 127 S. Ct. at 1944; Strickland, 466 U.S. at 696, 104 S. Ct. at 2069;

Pope, 752 F.3d at 1266–67.

E. Krawczuk Did Not Satisfy Landrigan’s Second Requirement

Even under de novo review, we hold that Krawczuk has failed to satisfy

Landrigan’s second prejudice requirement that a petitioner must establish a

reasonable probability that, had the available mitigating evidence been presented at

the penalty phase, he would have received a life sentence instead of the death

penalty. See Strickland, 466 U.S. at 696, 104 S. Ct. at 2069; Landrigan, 550 U.S.

at 481, 127 S. Ct. at 1944. As an alternative and independent ground for the denial

of Krawczuk’s ineffective counsel claim, we conclude that, after balancing the

totality of the available mitigation evidence against the aggravating evidence,

Krawczuk has not shown that he would have received a different sentence had the

available mitigation evidence been presented.

The state trial court found three statutory aggravating factors: (1) the

murder was committed during a robbery and for pecuniary gain; (2) the murder

was especially heinous, atrocious, or cruel; and (3) the murder was cold,

calculated, and premeditated without any pretense of moral or legal justification.

Krawczuk does not argue that these findings were error.

As to statutory mitigating factors, we recognize that Krawczuk’s mental

health experts, Dr. Crown and Dr. Sultan, testified that Krawczuk was under the

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influence of an extreme mental or emotional disturbance and was incapable of

conforming his conduct to the requirements of the law. However, the state 3.850

court discounted the testimony of both mental health experts, and Krawczuk does

not challenge this credibility determination as unreasonable.

This leaves only Krawczuk’s non-statutory mitigating factors. We further

recognize that there is evidence that Krawczuk: (1) was abandoned by his father;

(2) was isolated during childhood; (3) was not supervised during his childhood; (4)

sustained neuropsychological damage; (5) had mental disorders; (6) endured

emotional and physical abuse; (7) experienced depressive symptoms; and

(8) suffered sexual abuse on one occasion by strangers.

However, under de novo review, we readily conclude that Krawczuk failed

to establish a reasonable probability that, had he presented the above mitigating

evidence, the outcome of the proceedings would have been different. See

Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944; Williams, 529 U.S. at 397–98, 120

S. Ct. at 1515. In reaching this conclusion, we weigh the totality of the mitigating

evidence against the aggravating factors, considering the substantial weight due to

aggravation in light of the brutal nature of Staker’s murder.

Though the mitigating evidence discovered after Krawczuk’s sentencing

would have painted a more robust picture of the emotional and physical abuse and

tragic difficulties that Krawczuk faced during his childhood, the sentencing judge

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was already aware, from Dr. Keown’s report, that Krawczuk was subjected to

some amount of serious emotional and physical abuse during his life. The more

fulsome details of these childhood difficulties would not have been sufficient to

overcome the severe aggravation inherent in the nature of Staker’s murder. The

evidence adduced at the penalty phase, and especially through Krawczuk’s

confession, establish that he planned for several days to murder Staker with his

own bare hands and that he did so not only to profit from selling goods stolen from

Staker’s home, but also because of his disdain for Staker’s sexual preferences. The

method of Krawczuk’s crime was particularly brutal. Krawczuk choked Staker for

ten minutes before twice pouring drain cleaner down Staker’s throat and taping a

cloth over his mouth. This Court has upheld death sentences in other gruesome

murder cases. See, e.g., Boyd v. Allen, 592 F.3d 1274, 1303–04 (11th Cir. 2010);

Clisby v. State, 26 F.3d 1054, 1057 (11th Cir. 1994); Thompson v. Wainwright,

787 F.2d 1447, 1453–54 (11th Cir. 1986). Notably, there is no evidence of

intellectual deficiency here, but rather powerful and substantial evidence of a

carefully planned and brutal torture of Staker. Krawczuk’s cruelty and

premeditation make it unlikely that he would have received a different sentence.

In light of all the available evidence considered as a whole, it is not

reasonably probable that the presentation of Krawczuk’s entire mitigating evidence

would have resulted in the imposition of a life sentence rather than the death

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penalty. In these circumstances, the presentation of new mitigating evidence

“would barely have altered [Krawczuk’s] sentencing profile.” See Strickland, 466

U.S. at 700, 104 S. Ct. at 2071.

On appeal, Krawczuk argues that the Florida Supreme Court failed to

conduct any balancing of all mitigating and aggravating factors, and thus

unreasonably applied Strickland in making its ultimate prejudice determination.

See Porter v. McCollum, 558 U.S. 30, 42–43, 130 S. Ct. 447, 454–55 (2009). It is

true, as Krawczuk notes, that the Florida Supreme Court did not explicitly address

the available mitigation evidence or weigh it against the aggravating evidence in

reaching its prejudice decision. But this seems to be the case because the Florida

Supreme Court determined that Krawczuk would not have allowed his counsel to

present mitigation evidence. Krawczuk II, 92 So. 3d at 205.

Krawczuk’s failure to meet this first prejudice requirement under Landrigan

is sufficient to support the Florida Supreme Court’s ultimate determination that

Krawczuk did not establish prejudice. The Florida Supreme Court thus did not

need to address the second requirement of the Landrigan prejudice analysis, which

requires the petitioner to show that, had the mitigating evidence been presented,

the outcome of the proceedings would have been different. Accordingly, because

Krawczuk did not establish a reasonable probability that he would have allowed

the presentation of mitigating evidence, the Florida Supreme Court did not act

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unreasonably by failing to weigh the totality of the mitigating and aggravating

evidence. Where it is clear that mitigating evidence would not have actually been

presented to the jury, that alone means there is no prejudice. See Gilreath, 234

F.3d at 551 n.12 (“If Petitioner would have precluded [the] admission [of

mitigating evidence] in any event, Petitioner was not prejudiced by anything that

trial counsel did.”).

In sum, on this record and even under de novo review, we hold that

Krawczuk has not shown a reasonable probability that, had he presented all

mitigating evidence, the outcome of the proceedings would have been different.

F. The Decision of the Florida Supreme Court Was Not Unreasonable as to
Investigation of Mitigating Evidence

Before concluding, we address Krawczuk’s several separate claims about his

trial counsel’s investigation and why they are immaterial and irrelevant to the

prejudice analysis.

Krawczuk argues that the Florida Supreme Court made an unreasonable

determination of fact by concluding that Krawczuk instructed LeGrande not to

investigate mitigating evidence. In particular, Krawczuk points to the Florida

Supreme Court’s statements that “Krawczuk would not permit his attorney to

involve his family” and that he “repeatedly insisted that counsel not pursue

mitigation and not involve his family.” Krawczuk II, 92 So. 3d at 205. According

to Krawczuk, these determinations made by the Florida Supreme Court are at odds

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with the state 3.850 court’s findings that “the record will not support the

unequivocal direction to not investigate” mitigating evidence and that “counsel’s

performance was deficient in failing to purs[u]e further investigation of the family

history or to obtain clear direction from Mr. Krawczuk that she was not to do so.”

The problem for Krawczuk is the issue of LeGrande’s investigation of

mitigating evidence is not essential or even material to the Florida Supreme

Court’s conclusion that Krawczuk failed to establish prejudice. Given the record

shows Krawczuk told his counsel not to present mitigation evidence, this precludes

any need to examine the scope of counsel’s investigation.

“[I]f a petitioner ‘instructed his counsel not to offer any mitigating

evidence,’ then ‘counsel’s failure to investigate further could not have been

prejudicial under Strickland.’” Pope, 752 F.3d at 1265 (quoting Landrigan, 550

U.S. at 475, 127 S. Ct. at 1940–41). “This principle rests on the theory that an

obstructionist client would have prevented the introduction of any mitigation

evidence that may have been discovered from a fuller search.” Pope, 752 at 1265–

66. The Supreme Court has never held that trial counsel must still undertake to

investigate mitigating evidence where a competent defendant affirmatively and

repeatedly instructs his attorney not to present mitigating evidence because he

wants the death sentence. Rather, under Landrigan, the first requirement assumes

that a defendant was more fully advised of the mitigation evidence and asks

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whether the defendant has shown he would have allowed counsel to present it. See

550 U.S. 479–81, 127 S. Ct. at 1942–44. Krawczuk has not satisfied that

requirement.

The Supreme Court also has “never imposed an ‘informed and knowing’

requirement upon a defendant’s decision not to introduce evidence.” Id. at 479.

Therefore, because Krawczuk issued unmistakable instructions to his attorney not

to present any mitigation evidence, his trial counsel’s lack of investigation is

immaterial to the prejudice analysis.

Furthermore, while Krawczuk’s instructions regarding the investigation of

mitigating evidence are relevant to the deficiency prong of the Strickland analysis,

the Florida Supreme Court’s decision rested not on the deficiency vel non of

counsel’s performance, but rather on the independent conclusion that Krawczuk

failed to establish prejudice. Krawczuk II, 92 So. 3d at 205. For purposes of

establishing prejudice under the circumstances presented here, the inquiry depends

only on (1) whether the defendant instructed his counsel not to present mitigating

evidence and (2) whether the defendant has satisfied the two Landrigan

requirements. See Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944 (concluding that

the petitioner was not entitled to habeas relief because the petitioner “would not

have allowed counsel to present any mitigating evidence” and “the mitigating

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evidence he seeks to introduce would not have changed the result” (emphasis

added)).

The distinction between instructions not to investigate and instructions not to

present mitigating evidence is underscored by the United States Supreme Court’s

above-quoted observation in Landrigan that, if the defendant “instructed his

counsel not to offer any mitigating evidence,” then “counsel’s failure to investigate

further could not have been prejudicial under Strickland.” Id. at 475, 127 S. Ct. at

1941; see Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 763–64 (11th Cir.

2010) (applying Landrigan and concluding that, in light of the defendant’s decision

not to present mitigating evidence, counsel’s failure to conduct pre-waiver

investigation of mitigating evidence was not prejudicial). To some extent,

Krawczuk’s reply brief acknowledges the distinction, stating that issues pertaining

to investigation of mitigation and presentation of mitigation “are closely related but

different.”

Accordingly, whether or not the Florida Supreme Court unreasonably

determined that Krawczuk instructed LeGrande not to investigate mitigating

evidence is not relevant to the outcome of the prejudice analysis in his case. What

matters for purposes of prejudice is whether Krawczuk instructed counsel not to

present mitigating evidence.

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Relatedly to the issue of LeGrande’s investigation of mitigating evidence,

we also reject Krawczuk’s argument that his waiver of the opportunity to present

mitigation evidence was not sufficiently informed and knowing because LeGrande

conducted only a limited pre-waiver investigation of mitigating evidence.

In Landrigan, the United States Supreme Court noted that it has “never imposed an

‘informed and knowing’ requirement upon a defendant’s decision not to introduce

evidence.” 550 U.S. at 479, 127 S. Ct. at 1942. Krawczuk identifies no Supreme

Court authority post-Landrigan indicating that a competent capital defendant’s

decision not to present any mitigating evidence may be informed or knowing only

if trial counsel first thoroughly or even adequately investigates the mitigating

evidence and tells her client about it. To the contrary, there is no such

investigation requirement in this type of case where the defendant instructs his

counsel not to present mitigation evidence.

VIII. CONCLUSION

For all of the foregoing reasons, we conclude that Krawczuk is not entitled

to habeas relief on his ineffective assistance of counsel claim as to mitigating

evidence in the penalty phase and affirm the district court’s denial of Krawczuk’s

§ 2254 petition.

AFFIRMED.

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MARTIN, Circuit Judge, concurring in the judgment:

I concur in the result reached by the majority because binding circuit

precedent precludes relief for Mr. Krawczuk here.1 This Court’s rule is that a

defendant who instructs his attorney not to present mitigating evidence at trial

“must make two showings” to demonstrate prejudice in support of an ineffective

assistance of counsel claim. Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000).

First, the defendant must show “a reasonable probability that—if [he] had been

advised more fully about [mitigating] evidence or if trial counsel had requested a

continuance—[he] would have authorized trial counsel to permit such evidence at

sentencing.” Id. at 551. Second, he must show that “if such evidence had been

presented at sentencing, a reasonable probability exists that the jury would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Id. at 552 (quotation omitted). My review of the record reflects

that Mr. Krawczuk failed to make these showings.

1
I have some doubt that the Florida Supreme Court’s decision warrants deference under
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). The
Florida Supreme Court based its decision—at least in part—on Mr. Krawczuk’s “repeated[]
instist[ence] that counsel not pursue mitigation and not involve his family.” Krawczuk v. State,
92 So. 3d 195, 205 (Fla. 2012). My review of the record has revealed no evidence that Mr.
Krawczuk instructed counsel not to involve his family. The most compelling evidence to this
effect is trial counsel’s testimony at the post-conviction hearing that Mr. Krawczuk “kind of
wanted to leave his family out of it.” My doubts make no difference to Mr. Krawczuk, however.
Even if we set aside the Florida Supreme Court decision and conduct our own de novo review of
his claims, Mr. Krawczuk still would not, in my view, win this appeal.

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This Court has said the rule established in Gilreath “is consistent with” the

Supreme Court’s decision in Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933

(2007).2 Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1360 (11th Cir.

2009). Therefore, Mr. Krawczuk can succeed on his ineffective assistance claim

only if he demonstrates a reasonable probability that, if he had been more fully

2
Of course, saying a rule established by our Court is consistent with Supreme Court
precedent is different from saying that the rule is required by Supreme Court precedent. I fear
the majority treats Gilreath’s two-part prejudice standard as being required under Landrigan in
every case where a defendant tells his lawyer he does not want to present mitigation. See Maj.
Op. at 42, 45. The Supreme Court’s decision in Landrigan was not so broad.
Mr. Landrigan actively interfered with his counsel’s efforts to present mitigation by
“repeatedly [interrupting] when counsel tried to proffer anything that could have been considered
mitigating,” regardless of its form. Landrigan, 550 U.S. at 476, 127 S. Ct. at 1941 (emphasis
added). Applying AEDPA’s deferential standard of review, the Supreme Court decided that the
state court reasonably determined “that Landrigan would have undermined the presentation of
any mitigating evidence that his attorney might have uncovered.” Id. at 477, 127 S. Ct. at 1941.
Thus the Supreme Court held, in turn, that the District Court did not abuse its discretion when it
found that Mr. Landrigan would have refused to allow his counsel to present any mitigation
whatsoever and for that reason failed to show prejudice. Id. at 477, 127 S. Ct. at 1942.
Landrigan did not, however, establish a rule that if any defendant tells his lawyer he
wants no mitigation presented, he can never show prejudice under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052 (1984), unless he satisfies the two-part test required under Gilreath.
See Blystone v. Horn, 664 F.3d 397, 424–26 (3d Cir. 2011) (limiting Landrigan to cases where
the defendant has demonstrated a strong determination not to present any mitigating evidence,
and concluding “[t]he fact that [the defendant] chose to forego the presentation of his own
testimony and that of [] two family members . . . simply does not permit the inference that, had
counsel competently investigated and developed expert mental health evidence and institutional
records, [the defendant] would have also declined their presentation”). To the extent that the
majority’s opinion equates the requirements of our circuit’s precedent with that of the Supreme
Court’s precedent, I believe it is mistaken.
I also disagree with the majority’s suggestion that trial counsel’s duty to perform a
constitutionally adequate mitigation investigation is obviated by a defendant’s communication to
his attorney that he does not wish to present mitigation. See Maj. Op. at 53. Landrigan never
addressed the performance prong of Strickland, and so it did nothing to alter trial counsel’s
perennial “obligation to conduct a thorough investigation of the defendant’s background.”
Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1515 (2000). Again however, even
setting these problems aside, I don’t believe Mr. Krawczuk can prevail in this appeal.

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advised about the mitigating evidence and its significance, he would have allowed

trial counsel to present the evidence at sentencing. Mr. Krawczuk presented no

such evidence. That means, under the law of this circuit, he cannot meet his

burden to show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984).

Because Mr. Krawczuk’s failure to present evidence that he would have

allowed presentation of a mitigation case is dispositive of his claim, there is no

need for the panel to reach the second prong of the prejudice inquiry. See Conner

v. GDCP Warden, 784 F.3d 752, 769 & n.17 (11th Cir. 2015). The majority’s

discussion of this topic is therefore unnecessary. I mention this because I

respectfully disagree with how the majority resolved this issue, once it undertook

to decide it. Like the majority, I look at this question de novo. See Maj. Op. at 49.

For me, there is certainly a reasonable probability that, if the available mitigation

evidence had been presented, Mr. Krawczuk would have received a life sentence.3

3
In reviewing the record in this case, I became troubled by an issue related to Mr.
Krawczuk’s failure to present a mitigation case, which is not before the court in this appeal.
There is an indication that Mr. Krawczuk may have been misguided by his trial counsel’s
statements, to think that he would only be allowed to present mitigation evidence if he agreed to
testify. In a letter dated March 8, 1991, counsel advised Mr. Krawczuk on what she believed
were potential mitigating factors, and wrote that some of the mitigation “will depend upon your
testimony at trial and the findings of Dr. Keown.” Then at the jury trial on penalty, when the
trial judge asked if counsel would be making a closing argument, she replied that no mitigating
evidence had been presented and so “it would be necessary for [Mr. Krawczuk] to take the stand
to present the mitigating evidence” in order for her to make an argument based on mitigation.
There is, of course, no requirement under state or federal law that a defendant must
testify in order to present mitigation evidence in his capital trial. Therefore, if trial counsel

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At the postconviction evidentiary hearing, several witnesses testified to the

“catastrophic” emotional and physical abuse Mr. Krawczuk experienced

throughout his childhood. This testimony described the constant physical violence

Mr. Krawczuk received at the hands of his “brutal” mother. There was testimony

that she used Mr. Krawczuk as her “whipping post” and punished him by holding

his hand to a hot stove burner. Witnesses also told of the severe emotional abuse

and neglect Mr. Krawczuk experienced. His mother made fun of his ears, calling

him “Dumbo, the flying fucking elephant,” and she “never showed any kind of

affection or love to [him.]” When Mr. Krawczuk would sometimes soil or wet

himself as a child, his mother would force him to wear the soiled garments on his

head or, on one occasion, stand in front of his home wearing a sign that said “I do

my doodie in my pants every day.”

Mr. Krawczuk also presented testimony from two mental health experts. Dr.

Barry Crown testified that Mr. Krawczuk had brain damage resulting in impaired

reasoning and judgment and that his mental processing abilities were at the level of

a thirteen-year-old. According to Dr. Crown, these mental problems impaired Mr.

Krawczuk’s ability to understand the long-term effects of his behavior. Dr. Faye

improperly indicated to Mr. Krawczuk that he was required to testify at the penalty phase in
order to introduce mitigation, this would constitute deficient performance. See Hinton v.
Alabama, 571 U.S. ___, 134 S. Ct. 1081, 1089 (2014) (“An attorney’s ignorance of a point of
law that is fundamental to his case combined with his failure to perform basic research on that
point is a quintessential example of unreasonable performance under Strickland.”).

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Sultan testified that Mr. Krawczuk suffered from a cognitive disorder that resulted

in decreased impulse control, impaired reasoning, and learning problems. She

testified that this “overriding blanket of dysfunction” influenced “all of his

behavior.”

None of this testimony was rebutted. And all of it was clearly relevant

mitigation. See Porter v. McCollum, 558 U.S. 30, 41–43, 130 S. Ct. 447, 454–55

(2009) (considering evidence of defendant’s “brain abnormality and cognitive

defects” as relevant mitigation); Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct.

1495, 1515 (2000) (“[T]he graphic description of Williams’[s] childhood, filled

with abuse and privation . . . might well have influenced the jury’s appraisal of his

moral culpability.”); Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 2947

(1989) (“[E]vidence about the defendant’s background and character is relevant

because of the belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged background, or to emotional

and mental problems, may be less culpable than defendants who have no such

excuse.” (quotation omitted)).

Yet the jury who recommended that Mr. Krawczuk be put to death heard

nothing in mitigation—not even a bare plea for mercy from trial counsel. Mr.

Krawczuk’s lawyer spoke not a word to the jury about what penalty to impose. At

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the Spencer hearing before the trial judge,4 counsel again offered no mitigating

evidence or argument. That meant all the sentencing judge had to aid him in

arriving at the sentence for Mr. Krawczuk was the presentence investigation report

and a seven-page report from Dr. Richard Keown, who was the psychiatrist who

conducted a pretrial competency evaluation. The psychiatric report referred to Mr.

Krawczuk’s abusive upbringing, but—as the state postconviction court found—it

did not “contain the quality of the evidence regarding his mother’s abuse that was

later brought out in the evidentiary hearing.”

Thus, this is not a case where the new mitigation evidence “would barely

have altered the [defendant’s] sentencing profile.” Strickland, 466 U.S. at 700, 104

S. Ct. at 2071. Under Florida law at the time, the trial judge was required to give

the jury’s advisory verdict on the sentence “great weight.” See Hurst v. Florida,

577 U.S. ___, 136 S. Ct. 616, 620 (2016) (quotation omitted). 5 At trial, the jury

heard nothing that would humanize Mr. Krawczuk or help put into context the

horrible crime he committed. If the available mitigation had been presented, the

jury would have learned of “the kind of troubled history [the Supreme Court] ha[s]

4
Under Florida law, a Spencer hearing gives the defendant, his counsel, and the State the
opportunity to be heard and to present additional evidence to the sentencing judge after the jury
has offered its recommendation. See Spencer v. State, 615 So. 2d 688, 691 (Fla.1993) (per
curiam).
5
Florida has since amended its capital sentencing scheme, and the Florida Supreme Court
has held that “in order for the trial court to impose a sentence of death, the jury’s recommended
sentence of death must be unanimous.” Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) (per
curiam).

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declared relevant to assessing a defendant’s moral culpability.” Wiggins v. Smith,

539 U.S. 510, 535, 123 S. Ct. 2527, 2542 (2003). It would have also learned of

Mr. Krawczuk’s brain damage and mental problems. I recognize that Mr.

Krawczuk committed a terrible crime. But if the jury had heard the available

mitigating evidence, there is surely a reasonable probability that it would have

recommended a life sentence. See Porter, 558 U.S. at 41–44, 130 S. Ct. at 453–55

(considering the probable effect of the unpresented mitigation on the jury’s

recommended sentence). This recommendation would have been entitled to “great

weight” by the sentencing judge, who would have also heard the true extent of the

abuse Mr. Krawczuk suffered throughout his childhood and learned of his mental

impairments. On this record, I believe Mr. Krawczuk has demonstrated a

reasonable probability of a different outcome. Because the majority and I come to

a different conclusion on the issue of whether Mr. Krawczuk was prejudiced by

having no mitigation case presented, I cannot join its opinion.

As to whether Mr. Krawczuk can prevail in this appeal, however, I must

agree with the majority that he cannot.

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