Johnny L. Robinson v. Michael W. Moore

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ August 8, 2002
THOMAS K. KAHN
No. 01-14273 CLERK
________________________

D. C. Docket No. 99-00415-CV-J-10

JOHNNY L. ROBINSON,
Petitioner-Appellant,

versus

MICHAEL W. MOORE, Secretary,
Department of Corrections,
ROBERT BUTTERWORTH,
Florida Attorney General,
Respondents-Appellees.

________________________

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

(August 8, 2002)

Before EDMONDSON, Chief Judge, CARNES and HULL, Circuit Judges.

HULL, Circuit Judge:

Johnny L. Robinson appeals the denial of his § 2254 petition challenging his

death sentence. After review and oral argument, we affirm.
 I. BACKGROUND

During 1986, Robinson was convicted in the Circuit Court of St. Johns

County, Florida of first-degree murder, kidnapping, armed robbery and sexual

battery of Beverly St. George, and was sentenced to death on the murder

conviction. On direct review, the Florida Supreme Court reversed his death

sentence. Robinson v. State, 520 So.2d 1 (Fla. 1988) (“Robinson I”).

During the resentencing on remand, the State argued that several statutory

aggravating circumstances warranted the death penalty in Robinson’s case.1 A jury

again recommended death, by a vote of eight to four.2 The state trial court

accepted that recommendation and imposed the death penalty. The Florida

Supreme Court affirmed Robinson’s death sentence. Robinson v. State, 574 So.2d

108 (Fla. 1991) (“Robinson II”).

Subsequently, Robinson brought a Rule 3.850 motion in state court

challenging again his murder conviction and death sentence. The 3.850 court

denied relief, and the Florida Supreme Court affirmed that denial. Robinson v.

1
See Fla. Stat. Ann. § 921.141(5) (setting forth statutory aggravating circumstances).
2
The initial jury recommended death by a vote of nine to three. Under Florida’s capital
sentencing scheme, “the jury makes a recommendation on whether life imprisonment or
execution is the proper punishment.” Van Poyck v. Dep’t. of Corrs., 290 F.3d 1318, 1321 n.3
(11th Cir. 2002) (discussing Fla. Stat. Ann. § 921.141). While that recommendation is entitled to
“great weight,” the trial court “ultimately decides for itself whether the imposition of the death
penalty is appropriate.” Id.

2
State, 707 So.2d 688 (Fla. 1998) (“Robinson III”). The Florida Supreme Court

determined that no reasonable probability exists that the mitigation evidence

gathered post-resentencing and presented to the 3.850 court would have altered the

balance of aggravating and mitigating factors in this case. Id. at 695-97. The

Florida Supreme Court affirmed the 3.850 court’s determination that Robinson had

not demonstrated the prejudice necessary to mandate relief. Id. at 697.

Robinson then filed a § 2254 petition, which the district court denied. This

Court granted a certificate of appealability as to whether Robinson received

ineffective assistance of counsel during resentencing. The crux of Robinson’s

claim is that his counsel failed to investigate and present available mitigation

evidence. Thus, we first review (a) the aggravating and mitigating evidence

presented during resentencing and (b) the newly-gathered mitigation evidence in

the state 3.850 hearing. We then explain why the district court properly concluded

that the Florida Supreme Court’s decision — that Robinson had not demonstrated

the prejudice necessary to mandate relief — was neither contrary to, nor involved

an unreasonable application of, clearly established federal law as determined by the

United States Supreme Court. See 28 U.S.C. § 2254(d)(1).

3
 II. RESENTENCING TRIAL

A. Aggravating Circumstances

1. Testimony of Accomplice Fields

During resentencing, the State read to the jury portions of Clinton Bernard

Fields’s testimony from the guilt phase, which detailed how Robinson murdered

Beverly St. George.3 According to Fields, he and Robinson were at a party on the

night of August 11, 1985. After leaving that party together, Robinson and Fields

were driving on Interstate 95. While driving, Robinson and Fields saw a green car

parked in the emergency lane. Robinson, who was driving, pulled over, “walked

up to the green car . . . [and] opened the door and put a handgun out his pants.”

Robinson came back with “this girl in his hand,” and “[h]e had the gun on her . . .

you know, pointing at her, aimed at her.” Robinson got into the back seat of his

car with the woman, put handcuffs on her, and told Fields to drive away. The

woman was later identified as Beverly St. George.

Subsequently, Robinson again took over the driving and drove to the Pellicer

Creek Cemetery where he took the handcuffs off of St. George and told her to take

off all her clothes. St. George then “got on the hood of the car,” and Robinson

3
Fields testified during the guilt phase, but invoked his Fifth Amendment right not to
testify during Robinson’s resentencing.

4
“put his penis inside her.” After Robinson “got off her,” he told Fields “to go

ahead and get it, get on her.” Fields told Robinson that he “don’t really need it,

because I got a girlfriend.” Robinson then “raised his voice,” and told Fields to

“just go ahead on.” Scared by Robinson, Fields “went ahead and put it in her and

pulled it back out.” When Fields finished, Robinson “got back on her” and had sex

with St. George a second time. While having sex, Robinson “had the gun in his

hand lying on the hood of the car, [and] had his hand over the gun.”

Fields explained that during the sex with Robinson, St. George could see the

gun that Robinson had in his hand. Fields described how St. George appeared

scared, and that, on the way to the cemetery, St. George asked repeatedly whether

they were going to kill her. According to Fields, “she was begging, you know, ‘Is

you-all going to take me back to my car? Is you-all going to kill me or what?’”

Fields assured her they would not kill her.

After raping St. George a second time, Robinson expressed concern that St.

George could later identify them. Fields responded, “Well, it’s dark. You know,

ain’t no way she could do that there, you know.” Robinson disagreed, stating,

“Well, only way she can’t do that there, I just go ahead and kill the bitch.”

Robinson then “walked up to her and put the gun to her cheek.” At that point,

Fields turned his head. Fields “heard the shot went off, and then . . . seen her

5
laying on the ground there. And then he [Robinson] standing over her and gave

her another shot.” As to the first gunshot, Fields clarified that Robinson “put it to

her head right there, to her cheek, and he pulled the trigger.” As to the second

gunshot, Fields explained that “she fell on the ground” and Robinson “just stand

over her and, pow, shot her again.”

After shooting St. George twice, Robinson told Fields, “That’s what I had to

do. You know, if I didn’t, you know, she know how I look, you know, and could

identify my car, you know.” Robinson then told Fields, “Now, she can’t do none

of that.” Thereafter, Robinson and Fields drove to a dark road, where Robinson

took money out of St. George’s purse and burned her “purse, . . . underwears and

some papers, some other stuff.” Robinson then took Fields back to Fields’s

mother’s house. At some point along I-95, Robinson threw the murder weapon

into a wooded area.4

4
Robinson stipulated that he fired the fatal shots with a .22 caliber Ruger pistol. His
stipulations were read to the resentencing jury, as follows:

Stipulation of facts. That Johnny Leartrice Robinson did on or between August
11 and 12, 1985, at Pellicer Creek Cemetery within St. John’s County, Florida,
have in his possession the .22 caliber Ruger pistol with which Beverly St. George,
a human being, was fatally shot.

The .22 long rifle Remington shell casing found at the cemetery was fired in and
ejected by said firearm. That Johnny Leartrice Robinson did fire the said firearm
twice and that both shots struck the said Beverly St. George in the head, fatally
wounding her. The State of Florida has never found and recovered the said
firearm used by Johnny Leartrice Robinson.

6
 Portions of Fields’s testimony on cross-examination during the guilt phase

were also read to the resentencing jury. According to that testimony, (1) Fields

was also convicted of first-degree murder, kidnapping, rape, and armed robbery,

(2) Fields “got life, not death,” and the State had promised Fields “some slack”

with regard to sentencing for his rape, robbery, and kidnapping convictions, and

(3) Fields was granted use immunity for his testimony against Robinson.

2. Testimony of Investigator West

Charles West, the lead investigator, testified during the resentencing. West

found St. George “lying kind of on her back, on her side . . . [s]he was wearing

blue jeans, no shirt, and had two wounds to her head.” West secured and

videotaped the crime scene. Over Robinson’s counsel’s objection, that videotape

was shown to the jury. West pointed out the blood around St. George’s head area

and the bullet wound over her left eye.

West further testified about Robinson’s sworn, post-arrest statement, in

which Robinson admitted shooting St. George twice, but claimed his first shot was

The Florida Supreme Court noted that “[o]ne week before Beverly St. George’s murder, the
weapon used to kill her was stolen in a burglary,” and “[t]he state had substantial evidence
indicating that Robinson was the burglar, and thus had the murder weapon.” Robinson I, 520
So.2d at 4. Thus, “[t]o avoid the introduction of evidence of the prior burglary, the defense
stipulated with the state that Robinson had fired the fatal shots.” Id.

7
an accident. Robinson’s post-arrest statement, published to the jury, provided as

follows:
On Sunday night, between 8:30 p.m. and 11:30 p.m., I was at a
party drinking Henessey Cognac, some gin or vodka and beer. I left at
about 11:30 with Bernard [Fields]. We started to head for Orlando on
95 to see a girl I know there.
I saw a little green Plymouth with someone in it. I turned
around and went back and stopped. I said, ‘What’s the problem?’
She said, ‘No real problem’ and that she was tired and stopped. We
talked and joked. I had a gun stuck in my pants. She said she needed
something like that to kill this son of a bitch. Later she explained it
was her ex-husband.
I grabbed her by her arm and said, ‘Come on’ and she came.
And I went past Charlie T’s [restaurant] and turned down a road.
There was a gate that was open. And when I got in, I saw it was a
cemetery. We played around a little, and I got her out of her pants.
We got out of the car, and I took the gun out of my pants and
laid it on the hood. Me and the chick were on the front of the car.
And the kid said, ‘Man, let’s get out of here and take her back to the
car.’ I said, “No, I’m going to take the bitch back to the party.’ And
she said, ‘Who the fuck are you calling a bitch?’ I said, ‘Shut up,
whore.’ The kid started to laugh, and she went to pawing at me.
I picked up my gun. She was right against me, and I was trying
to push her back. The gun went off and hit her in the face. She fell,
and I called her and said, ‘Hey, bitch, get up.’ She didn’t say
anything. I got a flashlight. She was lying on her side, and there was
blood coming from her face.
I got scared. Then I shot her again. I had to. How do you tell
someone I accidently shot a white woman? I hauled ass, started
driving. I drove and drove for maybe an hour, two hours. Then I got
my head straight and decided to rid of her stuff. I don’t remember
where I was, but I threw her pocketbook, blouse and I don’t recall
anything else.
The next thing I knew, it was breaking day. And I took Bernard
[Fields] home. Then I went home. Monday afternoon when I woke
up, I took a screwdriver and tore into the gun where you pull it back.
When I finished with it, it wouldn’t cock or pull a bullet into it. The

8
 gun stayed under the seat of my car. I couldn’t figure out what to do
with it. The screwdriver’s in my trunk.
I was coming back from Orlando this morning on 8/17/85
around 1:00 and 2:00 o’clock this morning. And somewhere between
Daytona and Ormond Beach, I stopped the car on I-95 and flung the
gun into the bushes.

West also testified about his post-arrest conversation with Robinson. West

asked Robinson why he had placed his firearm into his waistband before

approaching St. George in her car. Robinson replied, “Well, you know, a gun is a

sign of power and authority.” While West generally agreed that Robinson was

cooperative, West also indicated that Robinson already knew Fields was

cooperating with the State.

3. Testimony of Medical Examiner

The State also called Dr. Robert McConaghie, the medical examiner for St.

Johns County, Florida. McConaghie described the results of his autopsy of St.

George, as follows:

She was 5 and a-half feet tall, weighed approximately 125 pounds,
was a young adult, white woman, about 30, 31 years of age. . . .

She received two gunshot wounds to her face, one of which was in the
– entered in the left cheek, traveled into the bottom of the skull
through the mid-brain and ended up on the right side of the back of
her head.

The second bullet entered the left side of her forehead, went
backwards into the right and also ended up in the back of the right
side of the head.

9
 There was extensive hemorrhage inside the skull. There was a bullet
track going through both sides of the main lobes of the brain, the
cerebral hemispheres and the middle portion of the brain, the medulla,
had been penetrated twice, once by each bullet.

McConaghie further testified that St. George “died as a result of severe brain

injuries inflicted by the gunshot wounds.” Other than a scratch over her thumb and

the two gunshot wounds, “there was no other significant injury” to her body.

McConaghie also “saw no markings of any kind or indentations or injuries to her

wrists, her hands, or her arms.” While McConaghie did not notice any bruising

around St. George’s vaginal area, his examination did reveal that “spermatozoa

were present,” and that “[r]ecent sexual intercourse had taken place.”

As to which bullet wound Robinson inflicted first, McConaghie had “the

impression . . . that the bullet in the left cheek was the initial shot and the one in the

forehead was the second shot.”5 Although St. George would have been rendered

“immediately unconscious” after either bullet went into her head, McConaghie

believed that “[d]eath from either of the shots would not have been instantaneous.

It would have taken at least several seconds, perhaps up to a minute before death to

5
This resentencing testimony comports with Fields’s testimony. However, during the
guilt phase, McConaghie was asked, “Can you tell by examining a person which gunshot was
first or which gunshot was second?” He answered, “No.” Robinson’s counsel highlighted this
apparent inconsistency while cross-examining McConaghie before the resentencing jury, and
McConaghie admitted that “[t]here’s no anatomic physical evidence to indicate which shot was
fired first.”

10
occur.” St. George was probably still breathing after the first shot because “[t]here

was blood found in her lungs that had to come from the back of the mouth, from

the blood – from inside of the head. So she had to have breathed in that blood at

least one breath and possibly more.”

McConaghie also testified about the distance at which the gun was held each

time St. George was shot. With regard to her left cheek, McConaghie testified that

it was a “tight contact wound,” explaining that the gun was “pressed to the cheek

and pressed into the cheek.”6 That testimony was consistent with Fields’s

testimony that Robinson put the gun up against St. George’s cheek. Robinson’s

counsel, however, posited another cause for the contact wound, which

McConaghie could not rule out, as follows:

DEFENSE: [W]e see a contact wound there and I think that is
beyond question. However, what was moving to
cause the pressure; that is to say, was the gun
muzzle pushed forcefully toward her or was she
moving toward the muzzle . . . Could she have
been moving toward the gun . . . , rather than the
person holding the gun pushing it against her face?

6
McConaghie described his conclusion, as follows:
There’s small abrasions up here which is consistent with the muzzle of a weapon,
a laceration, small tear in the skin which is above that, which is consistent with
the gas that escapes from a tight contact wound of the skin, the gas that’s
underneath the skin that swells up and you can see it tears. There is no powder
around the wound there’s no small particles or other things that come from a
weapon that’s fired. And this photograph [of the wound] is consistent with a tight
gunshot wound.

11
 McCONAGHIE: I have no way of knowing whether the gun was
being pushed in or she was pushing toward the
gun.

With regard to the bullet wound in St. George’s forehead, McConaghie believed

that the gun was held “one to two feet away.”

4. Testimony of Annette Eversole

Annette Eversole lived with St. George, and is married to St. George’s

brother. By stipulation, a portion of her testimony from the guilt phase was read to

the resentencing jury. According to Eversole, before St. George left home on

August 11, Eversole saw St. George count out $197 in bills. St. George placed

those bills in her billfold and placed that billfold in her black purse. Eversole had

discussed money with St. George because she wanted “to be sure that [St. George]

had enough to make the trip” to Quantico, Virginia. St. George was headed to

Virginia for a hearing concerning the custody of her children. St. George left in a

1968 green Plymouth, a car with which she had previously experienced mechanical

difficulties. Eversole later identified St. George’s body at the medical examiner’s

office.

5. Testimony of State Attorney for Maryland

Also by stipulation, the State presented a portion of the guilt phase testimony

of Edmund L. Widdowson, Jr., an assistant state attorney for Somerset County,

12
Maryland. Widdowson testified about Robinson’s 1979 conviction for forcible

rape in Maryland.7 Robinson received a sentence of ten years in prison on that

rape conviction, but was released early on parole. At the time of St. George’s

murder in 1985, Robinson was on “parole status” for his 1979 rape conviction.

B. Defense’s Mitigation Evidence

After the State rested, Robinson’s counsel presented Dr. Harry Krop, a

clinical psychologist familiar with Robinson’s background. Krop met with

Robinson during March 1986, before the initial sentencing, and again on December

9, 1988, before the resentencing. During those meetings, Robinson and Krop

discussed Robinson’s “past history.” Krop did not administer standard

psychological tests “because [Robinson’s] history was particularly noteworthy in

terms of his own self-report and there were some other documented aspects of his

history already in the records that I reviewed.” Krop further explained,

“[P]sychological tests are used to primarily assist in diagnosis, and . . . based on

the six hours that I spent with him, I felt comfortable and confident rendering a

diagnosis without the use of a psychological test.”

7
Robinson pled guilty to this rape charge in Maryland, which alleged that he “did engage
in vaginal intercourse with [the victim] by force and/or threat of force, against her will and
without her consent.”

13
 A “large portion” of what Krop learned came from Robinson himself, but

Krop also “spoke to some people that knew Mr. Robinson,” despite the fact that

“[i]t was not easy to get a hold of family members in this case . . . because of the

nature of his background.” Specifically, Krop spoke with (1) Robinson’s

biological father, the Rev. J.B. Robinson, (2) Coreen Smith, “a woman whom

indicated . . . she was quite familiar with Mr. Robinson, at least as a youngster,

because he spent a lot of time at her house,” (3) Earl Smith, “[t]he boy that Mr.

Robinson spent some time with, . . . [t]hat was Coreen’s son, and I was able to

speak with him as well whenever I called Ms. Coreen Smith,” and (4) a sheriff’s

officer who knew Robinson from prison. Krop also reviewed (1) “a number of

records from prior testimony and prior hearings,” (2) Robinson’s counsel’s “entire

file,” (3) “a presentence investigation,” and (4) Robinson’s “Department of

Corrections records.”

Krop testified that the persons with whom he spoke, and the materials that he

had reviewed, corroborated portions of what he and Robinson had discussed.

Given its private nature, Krop explained that certain information could not be

corroborated. Krop also clarified that (1) “the people who might know about some

of these aspects of Mr. Robinson’s background would most likely not be willing to

share that information since it’s not particular [sic] positive in terms of these other

14
people,” and (2) “the person who probably knows the most about Mr. Robinson,

that is the man who raised him, at least for part of his life, is no longer living. So, I

wasn’t able to obtain any information from that source.”

Having testified in many capital cases, Krop indicated his familiarity with

both the statutory and non-statutory mitigating circumstances a jury is entitled to

consider under Florida law.8 Krop did not believe there were any statutory

mitigating circumstances in Robinson’s case.9 Krop, however, testified at length

about Robinson’s background and what he summarized as seven nonstatutory

mitigating circumstances: (1) emotional deprivation; (2) physical abuse; (3) sexual

abuse; (4) incarceration in an adult prison as a child; (5) psychosexual disorder; (6)

intoxication at the time of the offenses; and (7) ability to function in prison without

being a management problem.10

As to emotional deprivation, Krop explained that Robinson never knew his

mother and he “was never really communicated with about his mother.” Instead,

Robinson was raised by his grandfather and grandmother, and then step-

8
Robinson’s counsel had used Krop in at least 25 to 35 capital cases. Krop also appeared
in numerous capital cases for other defense attorneys, and occasionally for the State of Florida.
9
The statutory mitigating circumstances under Florida law at the time of Robinson’s
resentencing are discussed in footnote 43 infra.
10
What was then referred to as “nonstatutory mitigating circumstances” has since been
codified as “[t]he existence of any other factors in the defendant’s background that would
mitigate against imposition of the death penalty.” Fla. Stat. Ann. § 921.141(6)(h).

15
grandmother. This “was corroborated by Reverend Robinson[,] the biological

father, who . . . never told Mr. Robinson that the people who raised him were really

not his natural parents.” Krop considered Robinson to have “emotional

deprivation,” and believed “that when one grows up essentially without a mother

and without getting love and affection, that would be a contributing factor; all

again contributing to later personality development.”

While growing up, Robinson was subject to “considerable physical abuse,”

as well as emotional abuse. Robinson’s grandfather used “a black leather belt” and

“[t]here were instances in which Mr. Robinson had his hands tied together and a

switch was used on him.” Additionally, “the grandfather or the grandmother

would use a broom handle and have Mr. Robinson squat, put the broom handle

between his legs and have to basically sit in a squatting position.” In that squatting

position, Robinson was sometimes physically hit. Coreen Smith indicated to Krop

that Robinson “would often come over to her son’s house, her house, and stay

there for periods of time complaining that his [grand]father had hit him,

complaining about the abuse.” Smith also “saw the bruises on a number of

occasions,” and told Krop that Robinson “would try and avoid going back home.”

Robinson was also sexually abused. When 7 years old, Robinson was

sexually abused by an uncle, but “he did not want to tell anybody about it because

16
he didn’t want to be seen as queer.” Robinson also thought that if he told his father

about the sexual abuse, “that would lead to further physical abuse.” When

Robinson was 11 years old, his grandfather (in his 60’s) married a 15 year-old-girl,

and that girl also sexually abused Robinson “on a number of occasions.” Legally,

she “was his grandmother, but he perceived her as his stepmother, since the

grandfather was . . . in the role of the father.” Robinson had “extreme difficulty” in

disclosing to Krop this sexual abuse. A few months after his grandfather’s new

wife moved in, at the age of 11 or 12 Robinson ran away and started living on the

streets. Robinson lived at various migrant labor camps “at the age of 12 to 13 or

14 . . . during which time he again reports that he was sexually abused on a number

of occasions by these individuals.”

During this time period, Robinson also “began getting into legal trouble.”

Robinson once told the authorities he was 18 years old because he did not want to

be sent back home. According to Krop, Robinson has “always been a fairly large

individual. Apparently there was no way that they checked and he was ultimately

incarcerated in an adult prison situation at the age of 13.”11 Robinson, having left

11
Krop also testified as to his own belief that being incarcerated in an adult facility could
be emotionally traumatic for a juvenile.

17
school in the sixth grade, finished his education in the prison system, where he

obtained a GED and about 30 college credits.

Krop also offered the following diagnosis: while “there is no major form of

mental illness,” Robinson has “an antisocial personality disorder”12 and “a

psychosexual disorder.”13 Krop further testified about Robinson’s drinking and

drug habits. Robinson had not used drugs throughout his life and did not consider

himself an alcoholic. However, Robinson did admit to Krop that he had been

drinking on the day and evening of the murder. Robinson told Krop that he started

12
Krop described Robinson’s antisocial personality disorder, as follows:
Mr. Robinson’s behavior, both in terms of getting into trouble when he was in
society, I would have to label him and diagnosis him as having personality
disorders, specifically an antisocial personality disorder. . . . [W]hen an individual
exhibits certain kinds of personality traits over a long period of time and those
traits generally lead to the person either getting in trouble, or having difficulty
functioning himself, then it is labeled as a personality disorder. And certainly
looking at Mr. Robinson’s background, it’s understandable . . . why he developed
some of these personality traits, which unfortunately kept reenforcing his anger
and his resentment and his feelings of rejection and inferiority.

13
Krop described Robinson’s psychosexual disorder, as follows:
Another diagnosis that I would certainly make, based on this incident, as well as
previous background, is what we call a psychosexual disorder. A psychosexual
disorder is . . . a diagnosis given to an individual whose sexual behavior, either
the behavior itself is inappropriate, such as forced sex, or the object or person to
whom he is sexually attracted is inappropriate; such as a person who is attracted
to young children . . . . [Here] we have the forced sex as an incurring [sic]
incident. Psychosexual disorder is certainly an appropriate diagnosis for Mr.
Robinson. Oftentimes we see individuals who suffer from psychosexual disorder
as victims themselves of sexual abuse. So, it certainly did not come as any
surprise when Mr. Robinson . . . reported . . . his own victimization in terms of
sexual abuse.

18
drinking around 4 p.m., when “he had a pint of Crown Royal.” Robinson reported

having “anywhere from two, three or four cups . . . of liquor” at “a party,” but he

was not sure “totally sure” as to the amount. Robinson also “drank maybe two or

three six-packs of beer, and . . . drank another pint of Crown Royal during the

night.” Krop acknowledged that he had no “independent data” on exactly how

much Robinson had been drinking on the day and evening of the murder.

The final factor to which Krop testified on direct was how Robinson

functions in prison. Robinson reported to Krop that “he functions better and has . .

. been more productive in prison situations than he has in the community.” In

prison, Robinson obtained his GED and “has been involved in some tutoring.”

Robinson’s probation officer told Krop that Robinson “does well . . . [and] is not a

management problem.” Krop’s review of Robinson’s prison records confirmed

that he had no disciplinary reports.

During cross-examination, the State questioned Krop about whether

Robinson’s self-reported history was corroborated by the other people with whom

Krop spoke. Krop admitted that he spoke with those individuals only on the night

before resentencing. Krop acknowledged that, while Coreen and Ernest Smith had

not directly observed the physical abuse of Robinson, both had seen bruises on

Robinson on several occasions. Krop agreed that his testimony about Robinson’s

19
sexual abuse and emotional deprivation was based “almost entirely” on Robinson’s

self-reports, but Krop added that “the PSI’s and various other records . . . certainly

indicated that he did not have a natural mother in a household in which he grew

up.” As to the sexual abuse, Krop stated that “any report of sexual abuse is

generally from the person, himself or herself.” Krop added that Robinson “was

very reluctant to have me or counsel contact his family members[,] . . . indicating

that he did not want them to be involved and he did not feel that they were

particularly relevant.” According to Krop, “[i]t was only by persuasion of both Mr.

Pearl [Robinson’s counsel] and myself that he gave us at least two names of people

we contacted.”

The State also questioned why Krop considered the following factors

“mitigating”: (1) long-time incarceration, (2) intoxication at the time of the

offenses, and (3) ability to function well in jail. The State characterized these

factors as “self-induced type factors” not properly considered in mitigation. As to

intoxication, Krop acknowledged that Robinson’s report was “somewhat different”

during his second interview in that it indicated Robinson had drank more (and

started drinking earlier), but Krop noted that his questions to Robinson about

drinking were also different during that second interview.

20
 The State also focused on certain statutory aggravating circumstances,

namely Robinson’s having killed St. George to avoid arrest. The State asked Krop

whether Robinson indicated he shot St. George a second time to avoid prosecution,

as Fields had testified. Robinson indicated to Krop that he “would like to believe”

he fired the second shot so St. George would not suffer, but Robinson “didn’t

deny” the possibility that he shot St. George a second time to eliminate her as a

witness.

On re-direct, Krop testified about other facts he believed to be mitigating.

Krop stated that Robinson is taking more responsibility for his actions and is less

hostile than when Krop first met him. Krop mentioned Robinson’s kindness

towards others and good deeds. For example, Krop testified that (1) Robinson was

helpful in the county jail system in “terms of at least four incidents in which there

were [sic] potential [for] violence,” and Robinson quelled that violence, and (2)

Robinson helped others in prison obtain their education or GED.

Robinson’s counsel also questioned Krop about Robinson’s employment

record, which to some extent was listed in Robinson’s PSI that Krop reviewed.

Krop stated, “I’m not aware of any formal employment, but I did not note that in

the record.” Robinson’s counsel pressed further as to Robinson’s work history,

asking whether it was true Robinson repaired automobiles. Krop replied, “I

21
believe that I saw that in – as part of the training that he received or was noted, and

that’s a skill of his in his records.”14

C. Closing Arguments

During closing arguments, the State argued to the jury that Robinson’s

conduct supported these six statutory aggravating factors: (1) murder committed by

a person under sentence of imprisonment, because Robinson was on parole for his

prior rape conviction; (2) murder committed by a person who had previously been

convicted of another felony involving the use or threat of violence to some person,

because Robinson had a prior rape conviction; (3) murder committed in the course

of a kidnapping and sexual battery, because Robinson took St. George at gunpoint

and in handcuffs and raped her; (4) murder which is particularly wicked, evil,

atrocious, or cruel, because Robinson handcuffed St. George “immediately,” raped

her “time after time,” terrorized her, and put the firearm “up to her cheek,” while

St. George begged for her life; (5) murder committed in a cold, calculated, and

premeditated manner, without any pretense of moral or legal justification, because

Robinson took St. George to a desolate area with a murder weapon he procured

before he first approached her, shot her twice because he thought she might later

14
In a section entitled “EMPLOYMENT,” Robinson’s PSI listed his “occupation” as
“auto mechanic.” The PSI further stated that “[t]he defendant is an auto mechanic who works
primarily for labor contractors, garages, and used car lots on an as needed basis,” and that
Robinson had “numerous” jobs in the past two years. Krop reviewed this PSI before testifying.

22
identify him, and committed the murder even though St. George did not resist or

provoke him; and (6) murder committed to avoid arrest, because Robinson shot St.

George so that she could not identify him as her rapist or kidnapper. It was these

aggravating factors, the State argued, that warranted “the ultimate punishment and

nothing less.”

In closing, the defense argued that the particular circumstances under which

Robinson had committed the crimes at issue were subject to a great deal of doubt,

even though the resentencing jury had to accept the fact that Robinson had been

convicted. The defense emphasized that Fields’s and Robinson’s accounts were

different, and that Fields was not necessarily telling the truth because he had

something to gain for testifying against Robinson. Characterizing the veracity of

Fields’s testimony as “the key” to certain statutory aggravating circumstances, the

defense pointed out certain inconsistences in Fields’s testimony. The defense also

argued that some evidence suggested certain aggravating circumstances did not

exist.

The defense walked through its mitigation evidence, pointing out that Krop

“outlined horror, almost unbelievable childhood for this man, Johnny Robinson,

which resulted in the man you see today.” The defense highlighted the physical,

sexual, and emotional abuse Robinson suffered as a child, and that Robinson

23
essentially grew up on the streets. The defense also discussed the other mitigating

circumstances to which Krop testified, including Robinson’s intoxication at the

time of the offenses, his emotional deprivation and psychosexual disorder, his

incarceration in an adult prison as a child, his ability to function in the prison

system, and, in certain situations, Robinson’s kindness towards others. The

defense further noted that, since his offenses, Robinson had matured and taken

responsibility for his acts.

D. Death Sentence

After deliberating, the resentencing jury recommended death by a vote of

eight to four. Thereafter, the state trial court imposed the death penalty, finding the

six statutory aggravating circumstances the State had argued and no statutory

mitigating circumstances.

Although noting much of the mitigation evidence came only from

Robinson’s self-reports to Krop, the trial court found these three nonstatutory

mitigating circumstances: Robinson (1) had a difficult childhood; (2) suffered

physical and sexual abuse during childhood; and (3) had a psychosexual disorder.

The trial court declined to find that Robinson was intoxicated at the time of the

offenses because it was “not supported by the evidence.” The trial court also found

“no credible evidence that [Robinson] was incarcerated as a child in an adult

24
prison.” Although acknowledging Robinson “functions well in prison,” the trial

court determined that this good behavior “is not in mitigation of the crime.”

The state trial court also specifically noted that, in Robinson’s case, “the

aggravating circumstances are overwhelming.” The trial court reasoned that

Robinson was on parole for a prior rape, and yet he terrorized, raped, robbed, and

murdered St. George, a total stranger. The trial court emphasized that “St. George,

except as a witness, was no threat to” Robinson, and “[s]he was killed for the

specific purpose of eliminating her as a witness.”

III. DIRECT APPEAL OF RESENTENCING

On direct appeal, the Florida Supreme Court affirmed the trial court’s

resentencing. Robinson II, 574 So.2d at 109. The Florida Supreme Court rejected

Robinson’s claims of error, including his claim “that he should have been

permitted to establish his intoxication at the time of the crime solely through the

testimony of Dr. Krop.” Id. at 111. The Florida Supreme Court reasoned that

“Robinson’s hearsay statement to the doctor during a medical interview, in the

absence of any evidence of impairment at trial, is insufficient to establish the

existence of this mitigating circumstance.” Id. (emphasis in the original).

On direct appeal, Robinson also argued that three of the six aggravating

circumstances were unjustified. The Florida Supreme Court agreed in part, finding

25
“that the trial court erred in finding that this murder was heinous, atrocious, or

cruel.” Id. at 112. Yet the Florida Supreme Court was “not persuaded that the

outcome would be any different in light of the specific aggravating circumstances

remaining – murder committed by a person under sentence of imprisonment;

murder committed by person previously convicted of a violent felony; murder

committed in the course of sexual battery and kidnapping; murder committed to

avoid arrest; and murder committed in a cold, calculated, and premeditated

manner.” Id.

IV. STATE 3.850 PROCEEDINGS

On May 11, 1993, Robinson filed his Motion to Vacate Judgment of

Conviction and Sentence pursuant to Florida Rule of Criminal Procedure 3.850. In

that Rule 3.850 motion, Robinson alleged, inter alia, ineffective assistance of

counsel during his resentencing. The crux of Robinson’s claims was that his trial

counsel failed to investigate and present available mitigation evidence. During an

evidentiary hearing, the 3.850 court heard testimony from (1) trial counsel Howard

26
Pearl, who is now deceased, (2) Krop, and (3) two potential mitigation witnesses.15

We now review that testimony.

A. Testimony of Howard Pearl

Howard Pearl was Robinson’s lead trial counsel.16 Since 1972, Pearl had

been an assistant public defender in Florida’s Seventh Judicial Circuit, where

Robinson was tried. From 1978 to 1993, Pearl was assigned to capital cases.

During that fifteen-year period, Pearl defended 300 capital cases. Of those 300

capital cases, Pearl tried somewhere between 90 and 100 cases before juries, all

within Florida’s Seventh Judicial Circuit. Robinson’s capital case came to Pearl

during the middle of Pearl’s career.

In this case, Pearl relied, in large part, on Krop to investigate potential

mitigation witnesses. Pearl testified that “[t]here are times when strategically we

feel that while the witness . . . might be highly reluctant to talk to a Public

15
The 3.850 court also heard testimony from (1) Thomas E. Cushman, Fields’s lawyer,
and (2) Pat Doherty, a lawyer who offered his expert opinion as to whether Pearl had performed
effectively during resentencing. Their testimony is not relevant to whether Robinson
demonstrated the prejudice necessary to mandate relief. Thus, we do not review it. See also
Freund v. Butterworth, 165 F.3d 839, 863 n. 34 (11th Cir. 1999) (en banc); Provenzano v.
Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998).
16
Chris Quarles, second chair during Robinson’s resentencing, also testified. Like Pearl,
Quarles had a wealth of experience as a public defender in Florida’s Seventh Judicial Circuit.
Quarles handled both of Robinson’s direct appeals to the Florida Supreme Court. However,
Quarles’s role during resentencing was limited, and Quarles had no responsibility to investigate
or to prepare for the resentencing.

27
Defender investigator or an attorney, they might . . . be willing to speak to a mental

health professional.” Pearl did not personally contact background witnesses, but

he “gave their names, [and] other data . . . to Dr. Krop and asked him to make the

inquiries.” Pearl, however, did help Krop obtain information from Robinson about

his background. For example, about one month prior to resentencing, Pearl wrote a

letter to Robinson advising that he was “in the process of final preparation” and

asking Robinson to provide names of any family members in Georgia. Robinson

replied by letter, naming certain individuals. Robinson also wrote, “I wish I could

give you more to work with, but the majority of people I have known and/or been

close to are now deceased.” Pearl forwarded Robinson’s reply to Krop and

attached a note, which read as follows:

Dear Harry: Just received this letter from Johnny Robinson. It may
contain sources of information/background previously untapped.
Sincerely, Howard.17

Pearl could not specifically recall whether he forwarded to Krop other names that

Robinson gave Pearl during a prison visit. However, Pearl testified that it “would

have been my practice unfailable [sic] to have done so. I can’t imagine not having

done so.”

17
The persons named in Robinson’s letter were later contacted by Krop, except for
Robinson’s cousins. Robinson had written that he had “no idea where to contact” those cousins.

28
 Pearl also indicated that he communicated with Krop “several times” and

sent him everything he learned about Robinson. Krop reported to Pearl that “he

had some difficulty . . . reaching family members and . . . receiving from them the

kind of cooperation and cooperative spirit that I am sure he wanted to get . . . , but

he [Krop] did talk to family members.” Pearl noted that “Krop is just as competent

in finding people and tracking them down as I am, so I left it to him.” When asked

whether he would have helped Krop get in touch with certain people, Pearl replied,

in part, that he would have “done anything that [Krop] asked him to do, if he . . .

asked me to find a particular person in a particular city, I would have done what I

could to find that person, but I don’t remember Dr. Krop asked me to do that.”

According to Pearl, Krop never told Pearl either (1) that he did not have sufficient

information to render a diagnosis of Robinson, or (2) that he could not find

witnesses and thus needed additional assistance from Pearl.

Pearl further testified that, in general, it was difficult to obtain information

from Robinson. Pearl recalled that Robinson “was reluctant to give information or

to identify the people from his family or from his past that we might have

considered calling.” According to Pearl, Robinson told him he did not want

“them” to testify. Pearl agreed that, after his initial death sentence, Robinson was a

“friendly, truthful, and cooperative client,” but Robinson “certainly didn’t want to

29
get members of his family involved and didn’t talk about that.” Pearl later clarified

that Robinson was “highly reluctant” and “non-communicative,” and that therefore

Pearl did not have access to the additional witnesses that Robinson’s state 3.850

counsel “have found over a period of five years.”

Many of those additional witnesses relayed Robinson’s poverty. That

poverty came as no surprise to Pearl because he knew about it “beforehand.” In

Pearl’s opinion, evidence of poverty would not have had a substantial impact on a

St. Augustine jury, in part, because St. John’s County was not a rich county, and

thus Robinson’s poor, rural background would not be meaningful to people who

had similar backgrounds.18 As to the stream of migrant labor in the East, Pearl did

not consider “the question of whether – the fact that [Robinson] was a member of

the migrant stream.” Pearl knew, however, that Robinson worked around migrant

laborers, as well as the “environment in which [Robinson] lived.” But Pearl did

not believe that information “would have been productive if exhibited to a St.

John’s County jury in terms of capturing there [sic] sympathy or interest.”

Pearl also testified about his choice to use Krop as the mitigation witness.

Pearl had used Krop as a mitigation witness in other capital cases. Pearl explained

18
Pearl indicated (1) that juries are different throughout Florida and (2) that having tried
all of his capital cases in the Seventh Judicial Circuit, he understood juries in St. Augustine,
Florida.

30
that “[w]ith Dr. Krop’s investigation, interviews, tests, his ability to receive

information from anyone and include[ ] it in his testimony as history, even though

it is mere hearsay,” he “eliminates the risk of loose canons . . . . if I use mothers,

relatives, friends, I always run the risk that such people are not controllable and

that their testimony may run away from me because they have their own agenda,

rather than attend to the things I want them to say.” However, with Krop, Pearl

could “bring in all the testimony as history without the risk of outbursts . . . [or]

uninvited ejaculations which might risk the defendant in the eyes of the jury.”

In this case, Pearl stated that he “looked at other witnesses to see whether I

might want to [put people on other than Krop],” and Pearl decided not to. Pearl

explained that he “decided there was nothing — no other people who could testify

that Dr. Krop could not include in his testimony that would not put the defendant at

additional risk on cross-examination by a competent prosecutor . . . .” And when

deciding whether to present a witness in mitigation, Pearl generally considered

“whether or not . . . that [witness] . . . would constitute a deployment of evidence

that could be used on cross examination to destroy the character of the defendant or

to compromise the meaning or intent of the evidence.”

In light of Robinson’s criminal history, Pearl testified that there would be

danger in presenting a witness who had not seen Robinson in some time. Pearl

31
stated that “[i]t would be catastrophic” because the prosecutor could “have

confronted these witnesses with Mr. Robinson’s later criminal activity . . . [a]nd

then ask[ed] them whether or not that might change their minds about their opinion

of Mr. Robinson’s good character.” Pearl acknowledged that the resentencing jury

was going to hear about portions of Robinson’s criminal background anyway, but

at least with Krop “it would come from a neutral source . . . . Other witnesses

would have appear[ed] . . . more inclined toward his side . . . less impersonal. And

the cross examination would have hammered and repeated facts about his prior

criminal record . . . [which] would have been driven into the minds of the jury

much more repeatedly . . . .”

Moreover, Pearl was successful in defeating the introduction of certain

“similar fact” evidence at resentencing. One week after St. George’s murder,

Robinson was arrested for an armed robbery and sexual assault of another woman

stranded on the interstate. Thus, the resentencing jury never heard, as the State put

it during the 3.850 hearing, “that [Robinson] had used a similar, MO, if you will, of

driving along the interstate, quote, ‘Helping a disabled vehicle, committing an

armed robbery and a sexual assault.’”19

19
The following exchange occurred:
STATE: [The jury never heard] that he was arrested [for this] . . . ?
PEARL: No, they did not.
STATE: And, certainly they never heard the testimony of the officer who

32
 Pearl acknowledged that lack of corroboration of Krop’s testimony was a

point attacked by the State during Robinson’s initial sentencing. However, Pearl

“felt that further character evidence about Mr. Robinson [at the resentencing]

would be harmful not helpful.”

B. 3.850 Testimony of Krop

Krop testified that, upon appointment, he did not understand he was

responsible for investigating Robinson’s background. According to Krop, Pearl

did not tell him he was expected to talk with Robinson’s friends, family members,

or former employers. Krop did not bill any time for looking for mitigation

witnesses. Despite this testimony, Krop agreed that, prior to resentencing, he

received Pearl’s note advising him “of information/background previously

untapped,” to which Robinson’s letter naming certain individuals was attached.

Krop also admitted that on the night before resentencing, Pearl told Krop to contact

three individuals from Robinson’s background, and Krop did so. Krop added,

however, that Pearl did not ask him to contact any other individuals.

made the case? . . .
PEARL: No, they did not.
STATE: And they did not hear the testimony of the eye witness who said
Johnny Robinson did it?
PEARL: No, they did not.
STATE: That is because nothing that was presented in mitigation opened
the door for that testimony, true?
PEARL: Certainly.

33
 Krop’s testimony during resentencing was that Robinson was “reluctant” to

have family members contacted, did not want them involved, and did not feel they

were relevant. However, Krop’s testimony during the 3.850 hearing was that

Robinson was cooperative, never refusing to give information when asked. But

Krop agreed that Robinson indicated to Krop it would be difficult to contact people

from his past because Robinson did not know where they could be found.

As noted above, Pearl testified that Krop never indicated that he had

insufficient information to diagnosis Robinson. During the 3.850 hearing, Krop

did not contradict that portion of Pearl’s testimony. Nonetheless, based on one

more interview with Robinson and a review of additional documents provided by

Robinson’s 3.850 counsel, Krop retreated from his initial diagnosis of Robinson.20

As to his initial diagnosis that Robinson had an “antisocial personality

disorder,” Krop testified that he had to “question” that diagnosis because he no

longer believed certain criteria applied to Robinson. For example, one 3.850

affidavit suggested that Robinson did not go to school because he was teased for

being “the poorest of the poor.” Krop testified that the truancy criterion for

antisocial personality disorder is not applicable “if in fact there is a legitimate

20
Those additional documents included (1) excerpts from books about migrant farm
workers, (2) certain of Robinson’s medical and inmate records, and (3) several affidavits about
Robinson’s background.

34
reason [for truancy] other than the individual is just not wanting to go to school.”

Krop indicated his “new diagnosis” for Robinson would be “personality disorder

not otherwise specified” or “mixed personality disorder.” Even with this

additional information, Krop could not rule out his initial diagnosis of “antisocial

personality disorder.” Krop stated only that he did not “have sufficient information

at this point in time to truly say this person [Robinson] had an antisocial

personality disorder.”

As to his initial diagnosis of “psychosexual disorder,” Krop testified that he

was probably mistaken to characterize that as a “diagnosis,” even without

considering the additional information he had reviewed, as follows:

Well, I guess I was never asked and perhaps I misspoke.
Psychosexual disorder is really not a diagnosis . . . . [I]t is a generic
description for an individual that suffers from either a paraphelia or a
sexual dysfunction. Those are two types of diagnostic entities . . . .21

Krop then indicated that certain references by Pearl to the resentencing jury about

Robinson’s sexual tendencies described “a paraphelia,” which, based on his post-

conviction review, Krop did not believe Robinson had.

21
Krop further testified (1) “I did make reference to [psychosexual disorder] as a
diagnosis, which was not correct,” and (2) “I should have said it is a disorder. It is not
considered a diagnosis. In other words, it is a generic term which then underneath it would be a
diagnosis.”

35
 In large part, Krop based his retreat from a diagnosis of “psychosexual

disorder” on the affidavits of three women filed by Robinson’s counsel in the

3.850 proceedings. The women’s affidavits indicated they had significant romantic

relationships with Robinson. Those women are: (1) Cora Mae Evans, with whom

Robinson had a child in 197922; (2) Winifred Lovett, with whom Robinson once

lived; and (3) Brenda Ann Shivers, with whom Robinson also once lived.

According to Krop, these woman described Robinson as “kind,” “affectionate,”

“respectful to women,” and reported that Robinson showed “no deviant sexual

behavior.” Because these affidavits indicated Robinson “is capable of forming and

having relationships with women of a nonviolent nature and, to the contrary, even

a kind and respectful relationship . . . sensitive to a woman’s needs,” Krop would

not consider Robinson as having a psychosexual disorder.

Krop also indicated that alcohol abuse might be a proper, additional

diagnosis for Robinson. Krop reviewed certain affidavits indicating that

Robinson’s grandmother Janie, who raised him, was a big drinker, and that

Robinson started drinking in his youth. One affidavit also described “drunken

binges” by Robinson, although it was not clear when those binges occurred. And

22
Cora Mae Evans testified that Robinson “treated me as special because I was a woman .
. . . He was very respectful of me . . . . He has never tried to hurt me . . . . He is truly a caring
man.”

36
in another affidavit, an employer of Robinson stated that he heard Robinson could

“tie one on,” but “never once seen [Robinson] take a drink.” Based on these

affidavits and other post-conviction materials indicating the prevalence of drinking

in migrant camps generally, Krop testified that Robinson may have had an alcohol

abuse problem. However, Krop “cannot definitively diagnose [Robinson] as

alcohol abuse at this time or alcohol dependent.” Krop agreed that, even now, he

does not diagnose Robinson as having a substance abuse disorder.

Krop also indicated that he would have modified other aspects of his

resentencing testimony. For instance, Krop no longer believed he had given a fair

summary of Robinson’s life of antisocial behavior, given that several 3.850

affidavits described Robinson as kind, generous, and respectful. Krop also did not

believe his own testimony that Robinson had no formal employment was

accurate.23 And Krop now believed that Robinson’s contact with labor camps was

more extensive than he had once thought.24

23
This inaccuracy is not due to lack of information at the time of resentencing. Krop
admitted that, prior to resentencing, Robinson told Krop he had worked for a newspaper in
Georgia for three years. And Robinson’s PSI (reviewed by Krop before resentencing) indicated
a history of employment.
24
Summarizing how he would now testify about Robinson’s background, Krop stated:
I would discuss the migrant life, how his abusive environment and
his involvement in migrant lifestyle and the drinking and the
sexual abuse, putting all that together. I would say it’s much more
severe than I ever imagined . . . and I would talk about how all of
those factors have a dynamic impact on his personality and have

37
C. Additional Mitigation Witnesses

Robinson’s 3.850 counsel located several people from Robinson’s

background who would have testified during resentencing, but most of them had

not seen Robinson for some time. The 3.850 court heard testimony from two of

them, Ethel Byrd and Warner Byrd. Robinson proffered affidavits from the other

potential mitigation witnesses.

Ethel Byrd knew Robinson well as a boy, yet had not seen him since

Robinson was about 20 years old. Ethel’s testimony focused on the physical abuse

Robinson suffered while growing up. Ethel witnessed Robinson’s grandfather,

known as Baby Boy, beat Robinson with “belts, electric cords, or whatever,” at the

early age of 5. Baby Boy was a farm labor contractor who had Robinson working

in the fields, under horrible conditions, by around 5 or 6 years old. If Robinson

stopped picking crops, then “he got a beating.” Ethel testified that Robinson’s

grandmother, Janie, drank whisky “quite often,” and that she had “occasionally”

seen Janie intoxicated. According to Ethel, Baby Boy and Janie treated their

natural son, Troy Hester, considerably better than Robinson. Unlike Troy,

Robinson did not have new clothes or shoes.

contributed in a significant way to his behavior on the date of the
offense.

38
 Warner Byrd, Ethel’s son, grew up with Robinson. Much of Warner’s

testimony comported with Ethel’s concerning Robinson’s work in the fields, the

conditions in those fields, and the generally poor childhood Robinson had. Warner

testified about the school which he and Robinson attended. That school had no

recreational facilities, and Robinson was required to cut the wood for the school’s

fire each morning. To keep warm in the winter, “you wore a lot of clothes,”

because even with a fire, the school did not stay warm. Warner remembered

Janie’s drinking and had seen Baby Boy beat Robinson to the point that he drew

blood.

Robinson’s 3.850 counsel also filed affidavits from potential mitigation

witnesses. Generally, the affidavits attested to Robinson’s good deeds for others,25

kindness towards friends and family,26 history of hard work,27 and good behavior in

25
For example, one of Robinson’s former employers, William Maddox, testified that
Robinson “liked helping folks.” According to Maddox, when Robinson saw “somebody broke
down along the road[,] . . . being a mechanic, he would stop and see what the trouble was.”
Robinson also helped to quell disputes at the work place in a “kind and gentle” way.
26
For example, Troy Hester testified about a time that Robinson helped him when Troy
had been shot in the chest and was “in the special care ward for 72 days.” That “whole time,”
Robinson stayed with Troy’s family and “took care of everything.” Robinson ran Troy’s
business, looked after Troy’s family, sat with Troy in the hospital, and “drove down to Virginia
and got Baby Boy and some [others] and drove them up to visit me in the hospital.” According
to Troy, Robinson “is the kind of person you can ask absolutely anything of.”
27
For example, several members of the Smith family, who owned the newspaper for
which Robinson worked, testified that Robinson was a great worker. Similarly, Maddox claimed
that Robinson was the best worker he ever had. Ray Hutcheson also knew Robinson’s past
employment history, and recalled that Robinson had fixed some of his trucks and “was a real

39
prison,28 as well as to the difficulties of life in the migrant farm system.29 Certain

affidavits recounted the physical abuse suffered by Robinson and other difficult

aspects of his childhood.30 The affidavit of Winifred Lovett indicated that she had

visited Robinson “over at the adult jail,” but Lovett did not state in her affidavit

how old she believed Robinson was at that time.31

Lovett, as well as others, also testified about the role alcohol generally

good mechanic.” Hutcheson also testified that Robinson “did work for the police department
putting tires on police cars” and “for some other friends” of Hutcheson’s. Hutcheson
remembered Robinson as “friendly,” “good natured,” “real humble,” and as someone who got
along well with everyone.
28
For example, William Gossard, a state prison official in Maryland, testified that
Robinson was “handpicked” from a large number of inmates to help open another facility
because “he had a good record, was trustworthy, and had less than two years to serve on his
sentence.” Robinson was “a model inmate,” with whom Gossard had no problems. Robinson
showed respect to other prison officials.
29
Maddox, a crew leader for migrant farm workers in Florida, began putting labor crews
together in the early 1960s, which is “about the same time [Robinson] was traveling around
doing farm work as a youngster.” According to Maddox, labor camps are “just plain rough.”
Maddox also testified: “I know [Robinson] carried scars from them days, because he used to talk
about it sometimes.” See also Affidavit of Albert Lee (former migrant worker and investigator
for the South Florida Migrant Legal Services Program).
30
See Affidavit of Troy Hester. Other examples include Ernest Smith, a former
classmate, and Aaron Kant, a former teacher. Smith testified about Robinson’s work in the
fields and hand-me-down clothes. Kant described Robinson as the “poorest of the poor.”
31
Lovett’s affidavit stated only (1) that she met Robinson when she was 12 or 13 years
old, (2) that she and Robinson “were very close to the same age,” and (3) that Robinson had been
arrested (and allegedly sent to an “adult” prison) after they had been “seeing each other for about
six or eight months.”

40
played in Robinson’s life, particularly when he was growing up. For example,

Lovett and Robinson used to drink beer together growing up, and several affidavits

indicated that Robinson’s grandmother Janie was a big drinker. Jack Humphrey, a

labor contractor who knew Robinson growing up in the early 1960s, testified that

“[o]n the weekends, all the young one’s [in the labor camp], including [Robinson],

would drink beer and wine.” Baby Boy Hester32 described Robinson as a binge

drinker, but his affidavit does not indicate when he had last seen Robinson, or at

what point in Robinson’s life he had seen these binges. William Maddox,

Robinson’s employer in the years before St. George’s murder, heard that Robinson

drank, but admitted that he had never once seen Robinson drink. None of the

affidavits procured by Robinson’s 3.850 counsel specifically address the amount of

alcohol Robinson reported drinking before he murdered St. George.

D. State Courts Deny 3.850 Relief

After the three-day hearing, the court entered an order denying Robinson’s

3.850 motion. The 3.850 court determined that “[e]ven if the affidavits are all true

the aggravating circumstances overwhelm the mitigating circumstances.”

Applying Strickland v. Washington, 466 U.S. 668 (1984), the court concluded that

32
Baby Boy Hester was born to Robinson’s grandfather, also known as Baby Boy, after
Robinson left Grandfather Baby Boy’s house.

41
Robinson’s trial counsel exercised reasonable professional judgment and that, in

any event, there was “not a reasonable probability that Defendant would have

received a life sentence if the background evidence would have been presented in

the manner [3.850 counsel] argue it should have been.”

Under Strickland’s prejudice prong, the 3.850 court noted that Pearl’s

decision not to present character witnesses who would testify that Robinson was a

good, non-violent person “effectively kept out evidence of a very similar, very

violent sexual assault which [Robinson] committed” subsequent to St. George’s

murder. The 3.850 court determined that had “this evidence come in, there would

be no chance the jury would have recommended life.” The 3.850 court also noted

that much of the new mitigation evidence was cumulative of what had been

presented to the resentencing jury and cumulative of those nonstatutory mitigating

factors found by the state trial court.33

The Florida Supreme Court affirmed the denial of Robinson’s 3.850 motion

and subsequent request for rehearing. Robinson III, 707 So.2d at 688. The Florida

33
The 3.850 court rejected Robinson’s arguments that Pearl’s failure to investigate
mitigation evidence (1) led to the presentation of inaccurate arguments to the resentencing jury,
and (2) led to Krop being unable to perform a competent mental health examination. The 3.850
court found that Pearl accurately represented to the jury that Robinson had spent most of his
adult life in prison and that other alleged inaccuracies were the result of Robinson’s not having
provided information to Pearl. In any event, the 3.850 court found no prejudice, even if
Robinson’s allegations were true. As to the competency of Krop’s exam, the 3.850 court found
that Krop’s later change in diagnosis was “minor at best.”

42
Supreme Court concluded that, “although counsel’s performance may have been

deficient in some respects, Robinson cannot demonstrate that he was so prejudiced

as to merit a new penalty phase proceeding.” Id. at 695. That court pointed out

that, “despite the new information provided by postconviction counsel, Krop still

believes that Robinson has some type of personality disorder and still

has some type of sexual disorder.” Id. at 697. It also reasoned that much of the

new mitigation evidence was cumulative. As for the noncumulative evidence

about Robinson’s loving relationships with women and other character evidence,

the Florida Supreme Court concluded this would have opened the door to

“evidence that less than one week after the St. George murder, Robinson allegedly

committed an armed robbery and rape with Fields after coming upon a woman with

a disabled car on the interstate.” Id. at 696. It emphasized that these “alleged

crimes were an almost exact replay of what happened with Ms. St. George, minus

the murder.” Id.

For these reasons, the Florida Supreme Court determined that no reasonable

probability existed that the mitigating evidence subsequently gathered and

presented to the 3.850 court would have altered the balance of aggravating and

mitigating factors in this case. Thus, the Florida Supreme Court affirmed the 3.850

court’s determination that no prejudice resulted from Pearl’s representation,

43
concluding as follows: “Considering the five valid aggravators, the cumulative

nature of the proffered lay testimony, and the modification of Krop’s testimony, we

find no error in the trial court’s finding that Robinson has not demonstrated the

prejudice necessary to mandate relief.” Id. at 697.

Although deciding this case on the prejudice prong of Strickland, the Florida

Supreme Court did comment on Pearl’s performance. It opined that “Pearl should

have been more proactive and more directly involved” with Krop’s investigation

and, “[i]n that sense, his performance was probably deficient.” Id. In large part,

however, the Florida Supreme Court indicated that Pearl had performed

effectively. It noted that Krop’s decision to rely solely on Krop’s testimony, while

“questionable,” was “defensible.” Id. And, pointing to the subsequent armed

robbery and rape, the Florida Supreme Court stated that “[t]he trial court could

have concluded that Pearl was not ineffective in not opening the door to this

potentially devastating rebuttal evidence.” Id.

V. FEDERAL HABEAS PROCEEDINGS

On April 30, 1999, Robinson filed a petition for a writ of habeas corpus in

federal court under 28 U.S.C. § 2254, reasserting that Pearl was ineffective during

44
resentencing.34 In denying relief, the district court concluded that the Florida

courts’ application of Strickland was neither contrary to, nor involved an

unreasonable application of, clearly established federal law as determined by the

United States Supreme Court. Robinson timely appealed the denial of his § 2254

petition. This Court granted a certificate of appealability (“COA”) as to whether

Robinson received ineffective assistance of counsel during his resentencing.35

VI. STANDARD OF REVIEW

“In appeals involving claims of ineffective assistance of counsel, we

traditionally review the district court’s findings of fact for clear error and its legal

conclusions and mixed questions of law and fact de novo.” Fugate v. Head, 261

F.3d 1206, 1215 (citing Williams v. Head, 185 F.3d 1223, 1226-27 (11th Cir.

1999)), cert. denied, 122 S. Ct. 2310 (2002). In this case, however, both this Court

and the district court are reviewing, pursuant to 28 U.S.C. § 2254, a final state

judgment on Robinson’s claim. Section 2254, as amended by the Anti-Terrorism

34
Robinson has not raised any issue concerning the constitutionality of Florida’s capital
sentencing scheme in his original § 2254 petition (filed on April 30, 1999), in his amended §
2254 petition (filed on January 2, 2001), or in his request for a certificate of appealability in this
Court (filed on October 29, 2001). Thus, we do not discuss Ring v. Arizona, 122 S. Ct. 2428
(2002).
35
We do not consider Robinson’s argument that his trial counsel had an undisclosed
conflict of interest. That separate claim for relief, denied by the state courts and the district
court, is outside the scope of Robinson’s COA. See Murray v. United States, 145 F.3d 1249,
1251 (11th Cir. 1998) (“[I]n an appeal brought by an unsuccessful habeas petitioner, appellate
review is limited to the issues specified in the COA.”).

45
and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, establishes a

highly deferential standard for reviewing state court judgments. See 28 U.S.C. §

2254; Williams v. Taylor, 529 U.S. 362, 402-03 (2000).36

First, § 2254(e)(1) provides for a highly deferential standard of review for

factual determinations made by a state court: “[A] determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). Fugate, 261 F.3d at 1215; Bottoson v. Moore,

234 F.3d 526, 531 (11th Cir. 2000), cert. denied, 122 S. Ct. 357 (2001).

Second, § 2254(d) allows federal habeas relief for a claim adjudicated on the

merits in state court only where that adjudication in state court “(1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d).

36
Because Robinson’s petition was filed in April 1999, our review, like the district
court’s, is governed by AEDPA, which was effective as of April 24, 1996.

46
 “Section 2254(d)(1) ‘places a new constraint on the power of a federal

habeas court to grant a state prisoner’s application for a writ of habeas corpus with

respect to claims adjudicated on the merits in state court’ by requiring satisfaction

of one of two conditions for issuance of the writ.” Fugate, 261 F.3d at 1215-16

(quoting Williams, 529 U.S. at 412). As the Supreme Court recently put it,

AEDPA “modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone,

122 S. Ct. 1843, 1849 (2002) (citing Williams, 529 U.S. at 403-04).

VII. DISCUSSION

Because AEDPA governs this appeal, we first review the controlling legal

principles under Strickland v. Washington, 466 U.S. 668 (1984), and whether the

Florida Supreme Court identified and applied those principles. We then explain

why the Florida Supreme Court’s ruling on the prejudice prong of Strickland was

neither contrary to, nor involved an unreasonable application of, clearly established

federal law as determined by the United States Supreme Court.37

37
The Florida Supreme Court did not decide the performance prong of Strickland. Thus,
we stress that nothing in this opinion should be read as concluding or implying that Robinson’s
trial counsel during resentencing was ineffective in any way. The Florida Supreme Court’s
approach, disposing of Robinson’s claim under the prejudice prong and not resolving the
performance prong, is itself consistent with United States Supreme Court precedent. See
Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground

47
A. Governing Legal Principles

It is well established that the Supreme Court’s decision in Strickland is the

“controlling legal authority” to be applied to ineffective assistance of counsel

claims. Williams, 529 U.S. at 406; Fugate, 261 F.3d at 1216. To prevail on a

claim of ineffective assistance, a petitioner “must show both incompetence and

prejudice.” Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en

banc), cert. denied, 531 U.S. 1204 (2001). “In a capital case, the two-prong

Strickland analysis is applied at both the guilt and penalty phase.” Fugate, 261

F.3d at 1216 (citing Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2000));

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (“This two-pronged test is

also applied to the sentencing phase because the capital sentencing proceeding is

similar to a trial in its adversarial format and counsel’s role is similar.”).38

“A petitioner’s burden of establishing that his lawyer’s deficient

performance prejudiced his case is . . . high.” Van Poyck v. Fla. Dep’t. of Corrs.,

of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.”); Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001) (“In this case, we need
not decide whether counsel’s performance was in fact deficient because Grayson so clearly fails
to satisfy the prejudice prong of the Sixth Amendment analysis.”), cert. denied, 122 S. Ct. 2674
(2002).
38
See Cone, 122 S. Ct. at 1851-52 (stating that “[t]he aspects of counsel’s performance
challenged [in this capital case, including] . . . the failure to adduce mitigating evidence . . . are
plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s
performance and prejudice components,” and citing as examples Darden v. Wainwright, 477
U.S. 168 (1986), and Burger v. Kemp, 483 U.S. 776 (1987)).

48
290 F.3d 1318, 1322 (11th Cir. 2002). Indeed, “[u]nder the prejudice prong of

Strickland, ‘[i]t is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding.’” Grayson v. Thompson, 257

F.3d 1194 ,1225 (11th Cir. 2001) (quoting Strickland, 466 U.S. at 693), cert.

denied, 122 S. Ct. 2674 (2002). Instead, the petitioner “must show that ‘there is a

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

proceeding would have been different.’” Chandler v. United States, 218 F.3d at

1312-13 (quoting Darden v. Wainwright, 477 U.S. 168 (1986)); see Dobbs v.

Turpin, 142 F.3d 1383, 1390 (11th Cir.1998) (“Our analysis of the prejudice

prong, however, must also take into account the aggravating circumstances

associated with Dobbs’s case, to determine whether ‘without the errors, there is a

reasonable probability that the balance of aggravating and mitigating

circumstances would have been different.’”) (quoting Bolender v. Singletary, 16

F.3d 1547, 1556-57 (11th Cir. 1994)).39

B. Florida Supreme Court’s Rulings

1. “Contrary to”

39
See also Clisby v. Alabama, 26 F.3d 1054, 1056 (11th Cir. 1994) (“Petitioners alleging
ineffective assistance in death penalty cases bear the burden of showing prejudice: ‘the question
is whether there is a reasonable probability that, absent the errors, the sentencer--including an
appellate court, to the extent it independently reweighs the evidence--would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.’”) (quoting
Strickland, 466 U.S. at 695).

49
 We first conclude that the Florida Supreme Court’s decision in this case was

not “contrary to” clearly established federal law as determined by the United States

Supreme Court. “Under the ‘contrary to’ clause, a federal habeas court may grant

the writ if the state court arrives at a conclusion opposite to that reached by this

Court on a question of law or if the state court decides a case differently than this

Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at

412-13. “The ‘contrary to’ clause in § 2254(d)(1) ‘suggests that the state court’s

decision must be substantially different’ from the relevant Supreme Court

precedent.” Fugate, 261 F.3d at 1216 (quoting Williams, 529 U.S. at 405).

“Although a state court’s decision that ‘applies a rule that contradicts’ the

governing Supreme Court law is ‘contrary,’ a state court decision that applies ‘the

correct legal rule’ based on Supreme Court law to the facts of the petitioner’s case

would not fit within the ‘contrary to’ clause even if the federal court might have

reached a different result relying on the same law.” Id. (citing and quoting

Williams, 529 U.S. at 405-06).

Here, the Florida Supreme Court correctly identified the principles set forth

in Strickland as those governing the analysis of Robinson’s claim of

ineffectiveness during resentencing. See Robinson III, 707 So.2d at 695 (“To

merit relief, Robinson must show not only deficient performance, but also that the

50
deficient performance so prejudiced his defense that, without the alleged errors,

there is a ‘reasonable probability that the balance of aggravating and mitigating

circumstances would have been different.’”) (quoting Bolender, 16 F.3d at 1556-

57). And Robinson does not cite to, nor are we aware of, any decision in which the

United States Supreme Court, faced with materially indistinguishable facts,

reached a decision different from that reached by the Florida Supreme Court in this

case.40

2. “Unreasonable Application”

We next conclude that the Florida Supreme Court’s decision did not involve

an “unreasonable application” of clearly established federal law as determined by

the United States Supreme Court. “Under the ‘unreasonable application’ clause, a

federal habeas court may grant the writ if the state court identifies the correct

40
The only United States Supreme Court decisions that inform this conclusion are those
existing at the time the Florida Supreme Court decided this case. However, we note that even
since then there is no decision in which the United States Supreme Court, when faced with
materially indistinguishable facts, reached a decision different from that reached by the Florida
Supreme Court in this case. See Breedlove v. Moore, 279 F.3d 952, 962-63 (11th Cir. 2002)
(reviewing under AEDPA a 1991 decision of the Florida Supreme Court and concluding that the
Florida Supreme Court “easily” satisfied the “contrary to” clause of § 2254(d)(1) because it
“correctly identified . . . the governing legal principle[s],” and there was no “pre-1991 case in
which the Supreme Court arrived at a conclusion different from that of the Florida Supreme
Court when faced with materially indistinguishable facts”); Bottoson, 234 F.3d at 533 (“The
state court . . . applied the correct ‘reasonable probability’ standard with respect to the prejudice
prong, and the facts . . . are not materially indistinguishable from a decision of the Supreme
Court concluding that the ‘reasonable probability’ standard had been satisfied; thus, the state
court adjudication in this case is not ‘contrary to’ Strickland.”).

51
governing legal principle from this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 412-13. In

Williams, “[t]he Supreme Court clarified that, under 28 U.S.C. § 2254(d)(1), the

federal court may not issue the writ unless it finds that the state court applied

Supreme Court law unreasonably.” Fugate, 261 F.3d at 1216 (citing Williams, 529

U.S. at 411).

In deciding this issue, “the federal court should consider whether the state

court’s application of the law was objectively unreasonable and should not apply

the subjective all reasonable jurists standard.” Id. (citing Williams, 529 U.S. at

410) (internal quotation marks omitted). Recently, the Supreme Court adhered to

its pronouncements in Williams, stating that “we stressed in Williams that an

unreasonable application is different from an incorrect one.” Cone, 122 S. Ct. at

1850. The Supreme Court further noted that “a federal habeas court may not issue

a writ under the unreasonable application clause ‘simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.’” Id. (quoting Williams,

529 U.S. at 411).41

41
See Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective
reasonableness, not the correctness per se, of the state court decision that we are to decide.”)

52
 Here, for several reasons, the Florida Supreme Court’s application of

Strickland’s prejudice prong to Robinson’s claim of ineffectiveness during

resentencing was not objectively unreasonable. More specifically, its decision —

that Robinson was not prejudiced by his trial counsel’s alleged failure to

investigate mitigation — was not objectively unreasonable.42

First, none of the mitigation evidence presented in the 3.850 proceedings

changes the fact that no statutory mitigating circumstances exist in this case.43

Nothing in the mitigation evidence suggests that Robinson has an “extreme mental

or emotional disturbance.” Indeed, Krop has never retreated from his testimony

42
As noted, the 3.850 court determined that, even if all the proffered affidavits were true,
the aggravating circumstances in Robinson’s case overwhelm the mitigating circumstances.
Affirming the 3.850 court, the Florida Supreme Court also considered “the proffered lay
testimony.” Thus, in concluding that the Florida Supreme Court’s decision was not objectively
unreasonable, we treat as new mitigation evidence not only the witness testimony at the 3.850
hearing, but also the proffered affidavits of potential mitigation witnesses.
43
At the time of Robinson’s resentencing, the statutory mitigating circumstances under
Florida law were as follows: (1) “[t]he defendant has no significant history of prior criminal
activity,” (2) “[t]he capital felony was committed while the defendant was under the influence of
extreme mental or emotional disturbance,” (3) “[t]he victim was a participant in the defendant’s
conduct or consented to the act,” (4) “[t]he defendant was an accomplice in the capital felony
committed by another person and his participation was relatively minor,” (5) “[t]he defendant
acted under extreme duress or under the substantial domination of another person,” (6) “[t]he
capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct
to the requirements of law was substantially impaired,” and (7) “[t]he age of the defendant at the
time of the crime.” Fla. Stat. Ann. § 921.141 (6)(a)-(g) (1989).
We do not further discuss two of these circumstances: (1) lack of a significant history of
prior criminal activity; and (2) age of the defendant. Robinson qualified for neither of these
circumstances, and no new mitigation evidence in the 3.850 proceedings could have changed
that.

53
before the resentencing jury that Robinson has no such disturbance. Robinson’s

counsel also offered nothing in the 3.850 court suggesting that St. George

consented to the kidnapping, robbery, rape, or murder, or that St. George was

otherwise “a participant” in Robinson’s conduct, except of course as a victim.

Nothing suggests that Robinson’s ability to “appreciate the criminality of his

conduct or to conform his conduct to the requirements of law was substantially

impaired.” Nor does anything offered in the 3.850 court indicate (1) Robinson was

only an “accomplice” in the kidnapping, robbery, rape, and murder of St. George

and that Robinson’s role in those offenses were “relatively minor,” or (2) that

Robinson “acted under extreme duress or under the substantial domination of

another person.” Indeed, the resentencing evidence indicating that Robinson was

the “key player” in the offenses remains unchanged. In short, even if Robinson’s

trial counsel had uncovered and presented the mitigation evidence that Robinson

contends he should have, neither the resentencing jury nor the trial judge would

have had any ground upon which to find a single statutory mitigating circumstance

in this case.44

44
Robinson also contends that his trial counsel’s alleged failure to investigate mitigation
“led to the presentation of materially inaccurate and false information” before the resentencing
jury. We reject this claim. First, Robinson did spend most of his adult life in prison and thus
that statement by his trial counsel was neither inaccurate nor false. Second, any modifications in
Krop’s testimony were minor at best. Additionally, the 3.850 court specifically found that the
alleged inaccuracies were the result of Robinson’s not having provided information to Pearl, a

54
 Second, the new mitigation evidence also leaves unaltered the five valid

statutory aggravating circumstances surrounding Robinson’s offenses, all of which

were presented to the resentencing jury and found by the trial court. Robinson was

on parole for a prior rape conviction at the time of the offenses in this case. That

prior rape conviction remains a “violent felony.” Nothing pointed to in the 3.850

proceedings changes the fact that Robinson committed this murder in the course of

both a kidnapping and sexual battery, or that Robinson murdered St. George to

avoid arrest for that kidnapping and sexual battery. And nothing presented by way

of mitigation alters, or casts doubt upon, the evidence that Robinson committed

this murder in a cold, calculated, and premeditated manner. The new mitigation

evidence casts no doubt upon, much less disproves, any of the five valid statutory

aggravating circumstances presented to the resentencing jury and found by the trial

judge. See Grayson, 257 F.3d at 1226 (concluding that petitioner failed to satisfy

the prejudice prong of Strickland, in part, because “none of the [mitigation]

evidence developed in connection with the state habeas proceedings served to alter

in any way the aggravating circumstance[s] . . . that supported the imposition of the

death penalty in this case”).

factual finding which Robinson has not rebutted by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”)

55
 Third, most of the new mitigation evidence is cumulative of the

nonstatutory mitigating circumstances presented during resentencing.45 The

resentencing jury and trial judge heard, inter alia, (1) that Robinson was both

physically and sexually abused as a child, (2) that he worked in migrant labor

camps, (3) that his childhood was generally difficult, (4) that he did not know his

natural mother, (5) that he behaved well in prison, and (6) that he had done certain

good deeds. While the additional mitigation witnesses procured by Robinson’s

3.850 counsel could have presented the resentencing jury and trial judge with more

details, or different examples, of these aspects of Robinson’s life, these aspects of

his life were nonetheless known to the resentencing jury and trial judge. By way of

example, Troy Hester testified in the 3.850 court proceedings that Robinson had

done good deeds for him in that Robinson took care of Troy’s family and business

while Troy was in the hospital. Although the resentencing jury and trial judge did

45
See Grayson, 257 F.3d at 1228; Glock v. Moore, 195 F.3d 625, 636 (11th Cir. 1999)
(concluding that the petitioner could not show prejudice because “much of the new evidence that
[petitioner] presents is merely repetitive and cumulative to that which was presented at trial”);
Devier v. Zant, 3 F.3d 1445, 1452 (11th Cir. 1993) (concluding that failure to call other available
witnesses during penalty phase was not ineffective because “[t]hese additional witnesses would
have testified to essentially the same impressions and sentiments about [the petitioner] that his
close relatives had already related at trial and would have added little to the weight of the
mitigating evidence”); see also Mulligan v. Kemp, 771 F.2d 1436, 1444 n.6 (11th Cir. 1985)
(“Petitioner submitted a list of twenty-five witnesses in his state habeas corpus proceeding, most
of whom [counsel] had never contacted. . . . [But] it is not clear that the presentation of any of
these uncontacted witnesses would have added anything but cumulative testimony to the case in
mitigation that had already been prepared . . . .”).

56
not hear that specific “good deed” evidence, they did hear evidence of other good

deeds by Robinson, namely Robinson tutoring others in prison.46

We also note that some potential mitigation witnesses might have harmed

Robinson’s case. For instance, during the 3.850 proceedings, Warner Byrd’s direct

testimony did present a more detailed picture of Robinson’s poverty and poor

living conditions as a child. On cross-examination, however, Warner agreed that

his situation growing up was essentially as bad as Robinson’s, and yet neither he

nor his siblings had ever been convicted of murder or sexual battery. The State

probably would have similarly examined Warner had he testified during

resentencing. And this reminder to the resentencing jury would have reinforced

the notion that it was not necessarily Robinson’s background that led to these

criminal acts, a point not helpful to Robinson’s case for a life sentence.

We recognize that the resentencing jury and trial judge heard the evidence of

mitigation through only Krop. However, Krop testified during resentencing that

some of Robinson’s self-reported history had been corroborated by persons with

46
Also, the additional mitigation evidence in the 3.850 court concerning Robinson’s good
behavior in prison, in addition to being cumulative, was specifically rejected by the trial judge as
a factor not properly considered in mitigation. Thus, that additional evidence might have been
no help at all, at least in the eyes of the trial judge who ultimately sentenced Robinson.

57
whom Krop spoke, thereby adding credibility to Robinson’s reports.47 For

example, Coreen and Earl Smith corroborated certain physical abuse, and

Robinson’s biological father corroborated Robinson’s lack of contact with his

natural mother. A probation officer with whom Krop spoke, as well as Krop’s

review of Robinson’s prison records, also corroborated Robinson’s report that he

functions well in prison. Indeed, despite the fact that much of the mitigation

evidence came only from Robinson’s self-reports to Krop, the trial court

specifically found in its sentencing order, as nonstatutory mitigating factors, that

Robinson had a difficult childhood and suffered physical and sexual abuse during

that childhood.

Moreover, even 3.850 counsel, with the benefit of time and hindsight, did

not present to the 3.850 court any evidence tending to corroborate Robinson’s

stories of sexual abuse. Thus, we cannot say that the resentencing jury was

deprived of hearing corroborating evidence in that regard.

In any event, while the State questioned Krop about who had corroborated

certain aspects of his testimony, the State did not allude to, much less argue, “lack

of corroboration” during its closing arguments to the resentencing jury. The State

47
Krop also indicated to the resentencing jury that, based on his training, he believed
Robinson was probably telling the truth.

58
also did not comment on the weight or amount of nonstatutory mitigating evidence

presented by the defense. Instead, the State focused on the aggravating

circumstances in this case and argued that those factors warranted “the ultimate

punishment and nothing less.”48 Additionally, as we discuss infra, calling

additional character witnesses to corroborate Krop’s testimony could have been

particularly harmful to Robinson’s case for life, as it may have opened the door to

damaging information.

The mitigating evidence presented in the 3.850 proceedings also falls short

of proving the two nonstatutory mitigating factors rejected by the trial judge as

unsupported by Krop’s testimony during resentencing: (1) intoxication at the time

of the offenses, and (2) incarceration as a child in an adult prison.

The additional mitigation evidence is not probative of intoxication at the

time of the offenses. Generally, that evidence deals only with Robinson having

been raised around drinking and his drinking while a youth. No new witness saw

Robinson on the day or night of the murder or indicated any knowledge of the

48
See Van Poyck, 290 F.3d at 1325-26 (concluding that the Florida Supreme Court
reasonably found that trial counsel’s failure to present evidence the petitioner was not the
triggerman during the penalty phase was not prejudicial, in part, because “being the triggerman
played only a very minor role” in the prosecutor’s closing argument, and stating “[e]specially
because the prosecutor’s main argument was that the death penalty was appropriate regardless of
who the triggerman was, we see no reasonable probability that . . . the outcome of the sentencing
phase would have been different”).

59
amount of alcohol Robinson reported drinking prior to the murder. Indeed, the

majority of the mitigation witnesses had not seen Robinson for several years, much

less at any point close in time to St. George’s murder. And Maddox, the man who

employed Robinson in the years before St. George’s murder, testified only as to

what he had heard about Robinson’s general drinking habits, and acknowledged

that he had “never once” seen Robinson take a drink. The 3.850 mitigation

evidence simply does not show what Robinson drank before committing murder.49

In any event, emphasizing intoxication at the time of St. George’s murder, or

a history of drinking in general, could have damaged Robinson’s case for life

before the resentencing jury. See Grayson, 257 F.3d at 1227 (“[W]e note that

emphasizing [the petitioner’s] alcoholic youth and intoxication may also have been

damaging to [the petitioner] in the eyes of the jury.”); Tompkins v. Moore, 193

F.3d 1327, 1338 (11th Cir. 1999) (“[A] showing of alcohol and drug abuse is a

two-edged sword which can harm a capital defendant as easily as it can help him at

sentencing.”) (citing Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir. 1996));

49
See Hill v. Moore, 175 F.3d 915, 926 (11th Cir. 1999) (“The evidence [of mitigation]
petitioner proffered . . . regarding his drug use the day of the murder is largely irrelevant. . . .
Petitioner has not, and cannot, show that there was any measurable amount of cocaine in his
blood. In the end, the only evidence he has proffered that would support his claim that he was
intoxicated during the robbery is the statement of his accomplice that they had been using drugs
that day. That evidence is insufficient to demonstrate a reasonable probability that, had counsel
put that evidence before the jury, it would not have recommended, and the trial court would not
have imposed, a death sentence.”).

60
Clisby, 26 F.3d at 1056 (“Precedents show that many lawyers justifiably fear

introducing evidence of alcohol and drug use.”); Rogers v. Zant, 13 F.3d 384, 388

(11th Cir. 1994) (noting reasonableness of lawyer’s fear that defendant’s voluntary

drug and alcohol use could be “perceived by the jury as aggravating instead of

mitigating”) (emphasis in original).50

Probative evidence in the 3.850 proceedings with regard to Robinson’s

allegedly having been incarcerated in an adult prison as a child is similarly lacking.

Robinson’s 3.850 counsel did proffer a police report dated at a time when

Robinson would have been 14, and that police report lists Robinson’s age as 19.

At best, however, that police report corroborates Krop’s testimony during

resentencing that Robinson had lied about his age when he was arrested during his

childhood. But that police report is not proof that Robinson actually was sent to an

adult prison for that offense (or any other offense), much less that Robinson served

any substantial time in an adult prison as a minor.51

50
We also do not find Krop’s testimony indicating that, based on his 3.850 review, he
would consider an alcohol abuse diagnosis for Robinson changes the balance of factors in this
case. First, even after considering all the evidence procured by 3.850 counsel and conducting
another interview with Robinson, Krop could not diagnose Robinson as having an alcohol abuse
disorder. Second, even if Krop had made this diagnosis, these precedents demonstrate that
“mitigation” evidence pertaining to a possible alcohol abuse problem could have hurt Robinson’s
case for life.
51
We also do not find probative Lovett’s affidavit indicating that she visited Robinson at
the “adult prison” because, among other things, that affidavit is unclear as to how old Robinson
was at that time. In any event, evidence that Robinson was incarcerated in an adult prison as a

61
 Fourth, much of the information presented in the 3.850 proceedings may

have been harmful to Robinson’s case and tipped the scales further in favor of the

death penalty.52 The new mitigation evidence that Robinson “had loving

relationships with women” would have opened the door to evidence that was

particularly damaging. Indeed, had Robinson’s trial counsel presented this

mitigation evidence, it would have allowed the State to present evidence that only

five days after murdering and raping St. George, Robinson allegedly raped and

robbed another woman, Jennifa Bashford, in similar circumstances.53

Discussing this subsequent robbery and rape, the Florida Supreme Court

noted that “Jennifa Bashford and three others were robbed in the early morning

hours” five days after St. George’s murder, and after that robbery, “Ms. Bashford

juvenile would not likely have affected the sentence in this case, particularly because, even in the
3.850 proceedings, there is zero evidence of what happened to Robinson in this adult prison,
assuming he was ever sent to one. Indeed, during resentencing Krop testified only to his own
belief that this could be damaging. Nothing Robinson points to in the 3.850 proceedings offers
any additional evidence particularized to what Robinson’s experiences were in this regard.
52
See Grayson, 257 F.3d at 1227 (concluding that the evidence presented in the state
habeas proceedings would not have altered the balance of aggravating and mitigating factors, in
part, because some of that evidence “may have been harmful to [petitioner’s] request for a life
sentence”).
53
See Van Poyck, 290 F.3d at 1323 (concluding that the Florida Supreme Court was not
unreasonable in finding lawyer effective when he did not present certain mitigation evidence in
part because “[c]ounsel concluded that the use of such [evidence] would have opened the door to
a considerable amount of damaging evidence” and “the harm from the jury learning of these
other factors could have outweighed the benefits of the evidence Petitioner now says should have
been presented”).

62
was allegedly raped by Robinson.” Robinson III, 707 So.2d at 697 n.11. Some of

the articles stolen from the victims were later found in a search of Robinson’s

vehicle, but “the charges in that case against Robinson were later dropped after he

was convicted of murder in this case.” Id. In part because the witnesses did not

testify as to their belief that Robinson was loving and respectful towards women,

then, the resentencing jury never heard about this subsequent rape and robbery.54

Given that this alleged robbery and rape happened only days after St. George’s

rape and murder, and that Robinson had another, prior conviction for rape, this

mitigation evidence would certainly not have helped Robinson; indeed, it would

have been devastating to his request for a life sentence.55

54
Several of the other new mitigation witnesses who would have testified to attributes of
Robinson’s character, including his peaceful and non-violent ways, also could have opened the
door to this devastating evidence. Even if the relationship-with-women testimony did not open
the door to the subsequent rape and robbery, evidence that Robinson had been nice and
respectful to three women would have done little to temper the other facts before the
resentencing jury and the trial judge – that Robinson raped and murdered St. George while on
parole for the rape of another woman.

55
Robinson contends that, even if the evidence that he had positive relationships with
women should not have been presented, his trial counsel should have at least uncovered that
evidence and provided it to Krop so that Krop could have provided a “competent mental health
examination.” Krop, however, never indicated to Robinson’s counsel that he needed more
information or was otherwise uncomfortable rendering his initial diagnosis with the information
he had. More importantly, Robinson does not argue how he was prejudiced during resentencing
by his trial counsel’s failure to provide Krop with this relationship-with-women evidence (or any
other evidence presented in the 3.850 proceedings). In addition, if Krop had relied on this
relationship-with-women evidence, it could have been brought out and also opened the door to
the subsequent robbery and rape.
Moreover, Krop’s modification of his initial diagnosis was minor. As the Florida

63
 Finally, given the particularly egregious facts surrounding St. George’s

murder, the limited, noncumulative mitigation evidence (which is primarily

Robinson’s formal history of employment), would not have been so powerful as to

affect the sentence in this case. As this Court has noted, “‘[m]any death penalty

cases involve murders that are carefully planned, or accompanied by torture, rape

or kidnapping.’” Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998) (emphasis

added) (quoting Jackson, 42 F.3d at 1369). “In these types of cases, this court has

found that the aggravating circumstances of the crime outweigh any prejudice

caused when a lawyer fails to present mitigating evidence.” Id. (citing Francis ,

908 F.2d at 703-04 (concluding that the failure to present mitigating evidence of a

deprived and abusive childhood did not prejudice capital defendant at trial for

torture-murder of government informant); Thompson v. Wainwright, 787 F.2d

1447, 1453 (11th Cir. 1986) (concluding that nothing trial counsel “could have

Supreme Court put it, even after his 3.850 review, “Krop still believes that Robinson has some
type of personality disorder and still has some type of sexual disorder.” Robinson III, 707 So.2d
at 697. Indeed, during the 3.850 proceedings, Krop could not rule out his initial diagnosis that
Robinson had an antisocial personality disorder. The Florida Supreme Court was not objectively
unreasonable in its determination that Krop’s minor modifications would not have affected the
balance of mitigating and aggravating factors in this case when considered along with the new
mitigation evidence and the five valid aggravators. We add an additional observation — Krop’s
3.850 testimony that Robinson did not have a psychosexual disorder could actually have been
harmful to Robinson’s case for life; indeed, the trial court specifically found Robinson’s
psychosexual disorder to be a nonstatutory mitigating factor.

64
presented [during the penalty phase] would have rebutted the testimony concerning

Thompson’s participation in the brutal torture murder”)).

Here, the capital offense was committed in the course of both a kidnapping

and repeated rapes, and the resentencing jury and trial judge heard evidence that St.

George was handcuffed from the start. Those handcuffs were removed when

Robinson and Fields had sex with St. George, but even then, according to Fields,

Robinson kept his hand on his gun. Fields also testified that St. George was asking

whether she would be killed and “begging” not to be killed. This Court need not

resolve what qualifies as a “torture” murder. But we are certain that, at least in the

eyes of the resentencing jury, the taking at gun-point, handcuffing, raping three

times, and then being shot twice in the head at point-blank range, were collectively

acts that tortured St. George.

The rape, kidnapping, and other particular circumstances surrounding St.

George’s murder, then, lend further support for the Florida Supreme Court’s

determination that Robinson’s sentence would have been the same, even if certain

evidence of Robinson’s formal work history, or other troubling aspects of his

childhood, had been presented to the resentencing jury and trial judge. See

Grayson, 257 F.3d at 1230 (“[W]e are confident that Grayson’s sentence would

have been the same despite the presentation of mitigating circumstances in light of

65
the brutality of the crime against an elderly widow who had been nothing but nice

to him.”); Tompkins, 193 F.3d at 1339 (concluding that there was no prejudice in

capital case because aggravating circumstances surrounding strangulation of 15-

year-old girl in the course of a sexual assault outweighed additional mitigating

circumstances that could have been presented at sentencing concerning defendant’s

physical abuse as a child, substance abuse problems, and mental deficiencies);

Clisby, 26 F.3d at 1057 (concluding that there was no prejudice from failure to

present additional mitigating evidence at capital sentencing and stating, “[W]e are

aware that, in reality, some cases almost certainly cannot be won by defendants.

Strickland and several of our cases reflect the reality of death penalty litigation:

sometimes the best lawyering, not just reasonable lawyering, cannot convince the

sentencer to overlook the facts of a brutal murder – or, even a less brutal murder

for which there is strong evidence of guilt in fact.”) (emphasis in original) (citing

Strickland, 466 U.S. at 696); Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th Cir.

1988) (concluding that “given the severity of the aggravating circumstances,”

failure to present psychiatric testimony was not prejudicial); Thompson, 787 F.2d

at 1453 (“The testimony indicated that . . . Thompson . . . beat[ ] the victim with a

chain, his fist, a chair leg, and a billy club . . . . [and] raped the victim with the

chair leg and billy club. After hearing testimony that Thompson committed these

66
atrocities, the jury heard nothing from Thompson himself in reply . . . . We do not

believe that there is a reasonable probability that evidence of a difficult youth, an

unsavory codefendant, and limited mental capacity would have altered this jury’s

decision.”).56

IV. CONCLUSION

For the foregoing reasons, the district court properly concluded that the

Florida Supreme Court’s decision — that Robinson had not demonstrated the

prejudice necessary to mandate relief — was neither contrary to, nor involved an

unreasonable application of, clearly established federal law as determined by the

United States Supreme Court. See 28 U.S.C. § 2254(d)(1). Thus, we AFFIRM the

district court’s denial of Robinson’s § 2254 petition.

56
Robinson’s reliance on Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999), is misplaced.
Unlike this case, the murder in Collier did not involve a rape or kidnapping, or other facts
present here. Instead, in Collier, “[t]he first two factors listed by the district court generally
represent[ed] the aggravating circumstances of Collier’s murder conviction: he killed a police
officer while trying to prevent his arrest for the commission of another felony.” Id. at 1203. The
number of aggravating factors present in this case, in stark contrast to Collier, renders Collier a
poor guidepost for determining whether the Florida Supreme Court was objectively reasonable in
evaluating prejudice in this case. For similar reasons, Dobbs v. Turpin, 142 F.3d 1383 (11th Cir.
1998), also does not help Robinson.

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EDMONDSON, Chief Judge, concurring in the judgment:

As I understand AEDPA, deciding this case accurately is no complicated or

laborious task. I easily accept that the pertinent decisions of the Supreme Court of

Florida were not contrary to and did not involve unreasonable applications of

clearly established federal law.

68