Pope v. Secretary, Florida Department of Corrections: Unanimous Panel Reverses Grant of Habeas Corpus to a Death-Row Prisoner for the Second Time

Pope v. Secretary, Florida Dept. of Corr., No. 13-11789, from SDFla

 

Circuit Judge Marcus joined by Chief Circuit Judge Carnes and Circuit Judge Tjoflat.

 

Summary: The petitioner, sentenced to death for murder, sought a writ of habeas corpus based on an ineffective assistance claim.  He argued that his attorneys did not investigate or present evidence at the sentencing phase of his difficult childhood, military history, dependence on drugs, and mental illness.  He also claimed that his attorneys failed to object when the prosecutor stated that he preferred the death penalty to life in prison. The district court granted the writ of habeas corpus.

 

Previously, the district court had granted the writ of habeas corpus based on the same sentencing phase ineffective assistance claim.  After an appeal, a panel consisting of Circuit Judges Marcus, Tjoflat, and Black reversed the grant of the writ and ordered an evidentiary hearing. See Pope v. Sec’y for the Dep’t of Corr., 680 F.3d 1271 (11th Cir. 2012).  Cullen v. Pinholster, 131 S. Ct. 1388 (2011), was decided prior to this first panel decision, but after it was fully briefed and argued. 

 

In this case, the panel explained that the prior panel’s order for an evidentiary hearing under 28 U.S.C. § 2254(e)(2) was not a holding regarding whether the state court’s judgment was unreasonable under § 2254(d).  The prior panel did not find that the state judgment was contrary to or an unreasonable application of federal law and thus made no finding with respect to § 2254.  Further, to the extent the prior panel suggested that § 2254(e)(2) hearing evidence could be used as part of the unreasonableness analysis under § 2254(d), that conclusion could not be reconciled with Pinholster’s holding that a finding of unreasonableness under § 2254(d) must be made on the state court record before any evidentiary hearing could be ordered under § 2254(e).

 

Addressing the petitioner’s ineffective assistance claims, the panel found that the petitioner could not establish Strickland prejudice on either one.  With respect to the ineffective assistance claim, the petitioner: (1) instructed his attorney not to offer mitigating evidence, which means that the failure to investigate further was not prejudicial because he did not establish that there was a reasonable probability that, if he was more fully advised of the mitigating evidence, he would have permitted trial counsel to present it at sentencing; (2) he indicated that he did not want to meet with a “shrink” because it was embarrassing and inconsistent with the other evidence; and (3) there was substantial aggravating evidence of three murders committed in a cold and calculated manner and in a manner that was especially atrocious and cruel.

 

With respect to the failure to object to the prosecutor’s comment, the panel also found no prejudice. Evidence of the petitioner’s preference for death over a life sentence was presented to the jury on at least three other occasions.  Moreover, the jury recommended life sentences for two of the murders and only one death sentence.

 

The district court’s grant of a writ of habeas corpus was reversed.

 

Note: The panel states in a footnote (number 4) that even if it could consider the evidence that was adduced at the federal habeas  hearing, the petitioner did not meet his high burden of showing he was entitled to habeas relief.