DAMION HAYES, Petitioner - Appellee, versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents - Appellants.
No. 19-10856
United States Court of Appeals for the Eleventh Circuit
August 25, 2021
D.C. Docket No. 8:14-cv-00489-MSS-AAS
[PUBLISH]
JORDAN, Circuit Judge.
Damion Hayes is serving a life sentence in Florida following his convictions for attempted first-degree murder with a deadly weapon and armed trespassing. The convictions resulted from Mr. Hayes attacking and stabbing one of his neighbors, apparently without motive or provocation.
The district court granted Mr. Hayes habeas corpus relief in the form of a new trial, concluding that his counsel had rendered ineffective assistance by withdrawing an insanity defense on the first day of trial. The Secretary of Florida‘s Department of Corrections appeals, arguing that Mr. Hayes is not entitled to habeas relief under Strickland v. Washington, 466 U.S. 668 (1984), and
Following oral argument and a review of the record, we conclude based on Knowles v. Mirzayance, 556 U.S. 111, 127-28 (2009), that the district court applied an incorrect prejudice standard in analyzing Mr. Hayes’ ineffectiveness claim. In our view, Mr. Hayes has not met his burden under the proper prejudice standard and so is not entitled to habeas relief. We therefore reverse.
On the morning of January 23, 2002, Mr. Hayes attacked one of his neighbors without any provocation or apparent motive. The victim—who was 60 at the time—testified that she had never met Mr. Hayes, who lived down the street from her. Mr. Hayes did not ask her for money, did not say anything, and just “came at [her].” D.E. 34 at 2.
Using a knife, Mr. Hayes cut the victim in her throat, chest, arms, face, and head. He also beat her, causing her to suffer a concussion and lapse into a coma. See id. Shortly after the attack, Mr. Hayes was seen burning items in his backyard. Clothing recovered from the burn pile contained the victim‘s blood. The evening after the attack, Mr. Hayes confided in his cousin that “God made him do it.” Id. at 2-3.
A
Florida charged Mr. Hayes, then 20 years old, with attempted first-degree murder with a deadly weapon and armed trespassing. Mr. Hayes was evaluated several times prior to trial, found incompetent to proceed, and transferred to a state mental health facility in July of 2003. After months of treatment, the facility‘s psychology department and two court-appointed psychiatrists, Drs. Donald R. Taylor, Jr. and Sidney Merin, concluded that Mr. Hayes was competent to proceed
In December of 2004, counsel filed a notice of intent to rely on an insanity defense. The notice listed several witnesses, including Mr. Hayes’ parents and medical professionals who had evaluated Mr. Hayes since his arrest. At a hearing in February of 2005, counsel renewed his objection to the trial court‘s finding that Mr. Hayes was competent to proceed to trial. The court responded that it had previously found Mr. Hayes competent—based on the opinions of three examining physicians—and that its conclusion had not changed. Counsel then noted that “[t]here is a defense of insanity at the time.” Id. at 5. But he never obtained an expert opinion regarding Mr. Hayes’ sanity at the time of the charged offenses.1
Mr. Hayes’ counsel did not call any witnesses at trial. He instead attempted to present a misidentification defense through cross-examination. But the prosecution‘s evidence against Mr. Hayes was significant: (1) the victim identified him as the perpetrator; (2) Mr. Hayes’ cousin testified that Mr. Hayes admitted that “God made him do it;” (3) Mr. Hayes burned his clothes on the night of the attack; (4) and the victim‘s blood was found in clothes at the burn pile. See id. at 5.
At the sentencing hearing, Mr. Hayes’ new counsel called Dr. Michael Scott Maher, who testified about the extensive evidence of Mr. Hayes’ past and present mental illnesses. Before announcing its sentence, the trial court stated that it “ha[d] no doubt in [its] mind that [Mr. Hayes] has mental problems” and that he is “mentally disturbed.” D.E. 7, Exh. 1, Vol. III at 142. Citing concerns that Mr. Hayes would repeat such a violent offense, however, the court sentenced him to life imprisonment. See id. at 143.
After his convictions and sentence were affirmed on direct appeal, see Hayes v. State, 976 So.2d 1106 (Fla. 2d DCA 2008) (table), Mr. Hayes filed a motion for post-conviction relief under
On appeal, the Second District Court of Appeal reversed. See Hayes v. State, 56 So. 3d 72 (Fla. 2d DCA 2011) (per curiam). Although the record suggested that counsel was following Mr. Hayes’ wishes in abandoning the insanity defense, there was nothing indicating that counsel thoroughly discussed that decision with Mr. Hayes. See id. at 73. The Second District observed that, “in light of [Mr.] Hayes’ history of mental illness, the evidence against him, and his fragile mental state prior
The post-conviction court then held an evidentiary hearing, at which Mr. Hayes introduced several exhibits. These included medical reports from Drs. Merin and Taylor, and records from the state hospital where Mr. Hayes remained during the time he was deemed incompetent to stand trial.
Mr. Hayes also called his trial counsel as a witness at the hearing. See D.E. 7, Order Denying Claim, Transcript of Proceedings, at 714-32. Counsel testified that he had concerns about Mr. Hayes’ mental capacity throughout the case, leading him to file motions requesting that Mr. Hayes’ competency be evaluated. Counsel also confirmed that he initially filed a notice of intent to rely on an insanity defense, but said he subsequently abandoned that defense at Mr. Hayes’ request. He stated that his decision was a tactical one.
Counsel explained that he had an on-the-record colloquy with Mr. Hayes and the trial court during which Mr. Hayes expressed his desire not to pursue a defense
When asked whether he thought Mr. Hayes understood the difference between a standard not-guilty plea and a defense of not guilty by reason of insanity, counsel responded: “Well, you know, that‘s very hard for me to divine.” He noted that “at least [one mental health expert] said [Mr. Hayes] might have been insane at the time of the commission and couldn‘t determine the difference [between] right and wrong.” Counsel stated, however, that because “[his] conversations with [Mr. Hayes] indicated ... that he certainly had a good understanding of what was happening throughout the trial,” he “concluded that [Mr. Hayes] was able to make an educated decision with respect to this issue of insanity vis-à-vis not guilty.” When asked whether he had explained to Mr. Hayes the difference between not guilty and not guilty by reason of insanity, counsel stated: “I don‘t recall having it in that sense. I was fully convinced that he knew the difference between not guilty by reason of insanity and not guilty. Why otherwise would he be so adamant about his position of not guilty?”
On redirect, counsel was again asked whether he had explained to Mr. Hayes the difference between being found not guilty and being found not guilty by reason
Mr. Hayes did not testify at the evidentiary hearing. And he did not present any expert testimony about whether he was insane at the time of the attack.
The post-conviction court denied Mr. Hayes’ ineffective assistance of counsel claim. It concluded that the abandonment of the insanity defense was reasonable because (1) counsel had “extensive criminal defense experience;” (2) counsel concluded that Mr. Hayes did not want to pursue the defense after “extensive consultation;” (3) Mr. Hayes was found competent by a number of experts; and (4) the evidence showed that Mr. Hayes was aware of what he had done. The court added that, even if counsel‘s decision demonstrated bad judgment, it was a “tactical decision” and therefore “post[-]conviction relief would not be justified.” The court did not address the matter of prejudice.
C
After exhausting his state remedies, Mr. Hayes filed a habeas corpus petition in federal district court. See
The district court found that the record did not support counsel‘s testimony that Mr. Hayes wished to abandon the insanity defense, or that he understood the difference between not guilty and not guilty by reason of insanity. See D.E. 34 at 23. Counsel had testified that he explained the difference to Mr. Hayes (1) during two on-the-record colloquies on February 17, 2005, and February 24, 2005; and (2) in his August 19, 2002, letter to Mr. Hayes. The district court observed, however, that neither the transcripts of the two colloquies nor the letter contained any such discussion. See id. at 23-28. The district court also noted that there was no evidence that counsel ever endeavored to have Mr. Hayes evaluated as to his sanity at the time of the attack. See id. at 29. As a result, the district court ruled that the post-conviction court‘s conclusion that counsel made a reasonable tactical decision to abandon the
The district court then conducted a de novo review of Mr. Hayes’ ineffective assistance of counsel claim. See id. at 34. It ruled that counsel‘s performance was deficient because there was nothing in the record to indicate that Mr. Hayes chose to waive the insanity defense. See id. at 36. Indeed, the district court explained that Mr. Hayes could not have knowingly waived the insanity defense because counsel admitted that he “fail[ed] to discuss with [him] the difference between a straight not guilty defense and a defense of not guilty by reason of insanity.” Id.
In addition, the district court concluded that Mr. Hayes suffered prejudice as a result of counsel‘s deficient performance because an insanity theory was “likely [his] only viable defense.” Id. at 37. The district court went on to explain that the unreasonable withdrawal of the insanity defense undermined its confidence in the outcome. See id.
The Secretary filed a timely notice of appeal, and we heard oral argument earlier this year.
II
Our review of the district court‘s order granting habeas relief is plenary. See, e.g., Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Mr. Hayes must satisfy
A
Normally, we substantively review the prejudice prong of a Strickland ineffectiveness claim under the deference required by
In Knowles v. Mirzayance, 556 U.S. 111, 123-28 (2009), a case involving an attorney‘s recommendation that a defendant abandon a defense of not guilty by reason of insanity, the Supreme Court alternatively addressed the issue of Strickland prejudice de novo. In doing so, the Court rejected the Ninth Circuit‘s ruling that abandonment of the only viable defense could alone constitute prejudice for an ineffective assistance of counsel claim. See id. at 127. The Court explained that even where no other viable defenses exist, a defendant must still show “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694). “To prevail on his ineffective-assistance claim,” therefore, the petitioner had to show “that there is
The district court appears to have concluded that Mr. Hayes suffered prejudice based on counsel‘s abandonment of the only viable defense available:
This Court agrees with the state appellate court‘s observation in its order remanding [Mr.] Hayes’ Rule 3.850 motion to the state post-conviction court for an evidentiary hearing that ‘an insanity defense was likely [Mr.] Hayes’ [s] only viable defense.’ Counsel‘s decision to abandon that defense prejudiced [Mr.] Hayes. See, e.g., Tejada v. DuBois, 142 F.3d 18, 25 (1st Cir. 1998) (“Depriving a criminal defendant of his only viable defense certainly renders the resultant trial ‘fundamentally unfair or unreliable’ as demanded by Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)“); Walker v. Hoffner, 534 F. App‘x 406, 412-13 (6th Cir. 2013) (“Defendant was not required to show that but for the failure to present the insanity defense, he would have been acquitted, but only that because he was unable to present such a defense, his trial was unfair such that we can no longer be confident in the verdict.“). [Mr.] Hayes’ inability-due to counsel‘s deficient performance and the prejudice resulting therefrom-to have a jury consider an insanity defense entitles [Mr.] Hayes to the writ.
D.E. 34 at 37.
This excerpt indicates that the district court never analyzed whether Mr. Hayes could show a reasonable probability of success on his insanity defense, and instead relied on a prejudice test that was rejected by the Supreme Court in Mirzayance. We now conduct the required prejudice analysis.
In 2000, the Florida Legislature enacted a statute setting out the requirements for the insanity defense in criminal cases. See
In relevant part,
The question for us is whether Mr. Hayes can show a reasonable probability that a jury would have found by clear and convincing evidence that he met the insanity standard at the time of the charged offenses. Under Florida law, clear and
On his side of the evidentiary ledger, the record contains lay testimony that paints a picture of Mr. Hayes as a deeply mentally ill individual at the time of the crimes. His parents, for example, told investigators about disturbed behavior by Mr. Hayes in the months before the attack, including putting holes in walls, speaking with himself, using a baseball bat to destroy a TV, hearing voices so much that he had to cover his ears to refrain from hearing them, wearing headphones while sleeping to drown out those voices, digging holes in the ground for no reason, cutting holes in a wire fence, wanting to see a dead person, sitting in the dark and isolating himself, and crying spontaneously. The unusual behavior continued after the attack, as Mr. Hayes told his cousin that “God made him do it.” D.E. 7, Exh. 20, at 267. And, as noted, there was no apparent provocation or motive for the attack.
In Florida, competent lay testimony—such as that provided by Mr. Hayes’ parents—can create a jury issue as to insanity. See State v. Clark, 745 So.2d 1116, 1117 (Fla. 4th DCA 1999); State v. Van Horn, 528 So.2d 529, 530 (Fla. 2d DCA 1988); Powell v. State, 373 So.2d 73, 74 (Fla. 1st DCA 1979). But here such
In addition to lay reports of bizarre behavior indicative of mental illness leading up to and continuing after the attack, the record also contains post-offense psychological evidence. As noted, Mr. Hayes was found to be incompetent in July of 2003 and transferred to a mental health facility. Dr. Gamache, in a letter to counsel in February of 2003, concluded that there was “a reasonable probability that Mr. Hayes is mentally ill.” D.E. 7, Order Denying Claim, Def. Exh. 8, at 873-75. Dr. Taylor went further in his May 2003 evaluation. He stated that Mr. Hayes’ behavior in the months leading up to the offenses was “suggestive of psychosis,” and that “it is likely that [he] experienced a Substance Induced Psychotic Disorder or early signs and symptoms of a psychotic disorder such as Schizophrenia.” As a result, he opined
After Mr. Hayes obtained new counsel, he introduced some additional medical evidence at sentencing. Dr. Maher testified that all three doctors who had previously evaluated Mr. Hayes (Drs. Taylor, Merin, and Gamache) “found substantial evidence of genuine mental illness apart from his drug abuse history,” and that the state hospital had concluded that “[Mr. Hayes] needed to be treated with anti-psychotic medication and anti-depressant medication.” Dr. Maher concluded:
What I can offer to the Court is that [Mr. Hayes] certainly appears to have a genuine and major psychiatric disorder[. An] underl[ying] psychiatric disorder which involves symptoms of psychosis, impulsiveness and is likely to have been related to both of these offenses ... with regard to apparent irrational and impulsive motivation behind those behaviors.
D.E. 7, Order Denying Claim, Def. Exh. 5, at 833. When asked by the prosecution whether he believed Mr. Hayes knew right from wrong at the time of his offenses,
With respect to the medical evidence, the problem for Mr. Hayes is twofold. First, there was no expert evaluation or opinion on the issue of sanity. And that makes the insanity claim weaker. Second, all of the medical evidence related to competence to stand trial, which was based on Mr. Hayes’ mental condition more than a year after the attack. The competency standard asks whether a defendant, at the time of trial (or at the time of the relevant proceeding) has the “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” and “whether he has a rational as well as factual understanding of the proceedings against him.” Peede v. State, 955 So.2d 480, 488 (Fla. 2007). Insanity, on the other hand, is determined at the time of the charged offense and is analyzed under a different standard. See
Even assuming that the medical evidence on competency was highly relevant to the question of sanity, it was guarded. Dr. Maher, for example, explained that he was unsure whether Mr. Hayes knew right from wrong, and admitted that he had not analyzed the matter extensively. Dr. Merin, in his competency evaluation, concluded that there was “no evidence of manic behavior or thought processes” and that Mr. Hayes “was competent on the date and at the time” of the alleged offenses. See D.E. 7, Order Denying Claim, Def. Exh. 6, at 862-66. Again, competence is not the same as sanity, but if competency matters, Dr. Merin’s opinion casts some doubt on an insanity claim. We note, as well, that during his entire time at the mental health facility Mr. Hayes was never given a formal diagnosis of a mental infirmity, disease, or defect as of January of 2002. See
Although we have discussed the lay testimony and the medical evidence bearing on the question of insanity seperately, we recognize that our review of the record must be holistic. We have therefore considered all of the testimony and evidence together in analyzing Strickland prejudice. Cf. District of Columbia v. Westby, 138 S.Ct. 577, 588 (2018) (explaining that, where the “totality of the circumstances” must be considered, facts cannot be viewed in isolation and a “divide-and-conquer analysis” is inappropriate). Having done so, and taking into account the clear and convincing standard required under Florida law, we conclude that Mr. Hayes has not shown a reasonable probability that his insanity defense would have been successful if presented to the jury. See Mirzayance, 556 U.S. at 127.
Like the trial court which sentenced him, and like the district court, we acknowledge that Mr. Hayes has mental issues. But the issue before us is whether he can establish a reasonable probability that a jury would have found by clear and convincing evidence that he was insane in January of 2002, when he attacked his neighbor. On this record, we conclude that he cannot. The district court’s grant of habeas corpus relief to Mr. Hayes is therefore reversed.
REVERSED.
The Supreme Court has said that “[c]ourts can … deny writs of habeas corpus under
I
The district court’s refusal to apply AEDPA deference, and its ensuing decision to grant habeas corpus relief, stemmed from its skepticism of Hayes’s trial counsel’s testimony at the state post-conviction hearing. There, Hayes’s lawyer testified that, in fact, he had explained to Hayes the pros and cons of forgoing an insanity defense in favor of a straight not-guilty plea. The state post-conviction court expressly found the lawyer’s testimony “credible,” but the district court concluded
At a pretrial hearing on February 17, 2005, the state court ruled that Hayes was competent to stand trial. At the same hearing, Hayes’s trial counsel, Norman Cannella, informed the court that he intended to pursue an insanity defense. Not quite a week later, though, on February 23—the first day of Hayes’s trial—the prosecutor reported that Cannella had withdrawn the insanity defense. The next day, at a bench conference following the denial of Hayes’s motion for judgment of acquittal, the trial judge asked Cannella whether Hayes intended to testify in his own defense. Cannella thereafter engaged Hayes in an open-court colloquy advising him of his right to testify, and Hayes confirmed that he didn’t want to. Importantly for our purposes, as part of that same conference, the judge then had a separate exchange with Cannella about Hayes’s intentions vis-à-vis the insanity defense:
COURT: I think [you] discussed with [your] client before even starting the trial what type of defense that he wanted to proceed with and I think he indicated he wanted a defense that he was not guilty.
DEFENSE COUNSEL: That is absolutely correct and on the 17th of this month to be exact in this very courtroom I explained to him in detail on the record and in front of Your Honor and [the prosecutor] the notice of intent to rely upon the defense of insanity that I had filed explaining to him in detail and he indicated that he wanted to proceed with a not guilty plea and at that time I withdrew the notice.
At the conclusion of the trial, a jury convicted Hayes of attempted first-degree murder and armed trespassing, and the trial judge sentenced him to life in prison.
Hayes later filed a motion for state post-conviction relief on the ground that Cannella had provided constitutionally ineffective assistance of counsel when he abandoned the insanity defense. Following an initial denial, an appeal, and a remand, the state circuit court held an evidentiary hearing on Hayes’s ineffective-assistance claim at which Cannella was the lone witness. In its order denying Hayes’s post-conviction motion, the circuit court specifically addressed Cannella’s “representations … that he decided to abandon the defense of insanity because [Hayes] wanted to pursue a defense of not guilty.” The circuit court quoted extensively from Cannella’s sworn testimony, in which he twice referred to an in-court discussion with Hayes about the abandonment of an insanity defense. Because the full context is important, I will block quote the passage, as the circuit court did, adding my own emphasis:
CANNELLA: And I believe that, my recollection of that review just moments ago, was that there was a colloquy between myself and Mr. Hayes and the Court regarding this issue of abandonment of the defense. I believe that I told the Court that I was acting in part upon the desires of Mr. Hayes. That he did not want to proceed with a defense of insanity, that he was not guilty. Consequently, I made what I would consider to be a tactical decision. And I based that decision upon a number of things: One, the wishes of the client, who had previously, on a number of occasions, been found to be competent by a number of experts. Secondly, I was at that point in time well aware of the facts and circumstances, which had been brought forth before the jury. Those facts and circumstances led me to the conclusion, one, that
he would be convicted, which he ultimately was. And two, that the evidence showed that he did certain things after the alleged crime that would indicate that he was well aware of what he had done, and had taken certain steps to cover up what he had done. My recollection, now that I think about that case, is that bloody clothing was placed in a washing machine and maybe even some Clorox was used. Secondly, that a knife was disposed of in some fashion. And third, that a fire was started outside the house where my recollection tells me that certain pieces of evidence were destroyed in that fire. I put all those things together, and based upon a number of years of doing nothing but criminal work, I reached the conclusion and the position that I would honor his request not to go forth with the defense of insanity. Now, I must tell you that I also had conversations with most everyone that was listed on the notice of intent to use the defense of insanity. And I made some notes when I talked to those people, and I reviewed them today. And they, those witnesses were de minimis with respect to the issue of his ability to determine right from wrong in the period of time close to that of the crime. So with all those things in mind, I reached the decision that I would honor his request and withdrew the motion. And as a matter of fact, I think my recollection of what was given to me just moments ago is that I had a colloquy with him, Mr. Hayes, and the judge, regarding this very issue of whether or not he wanted to proceed. And I think Mr. Hayes was firm in his position that he was not guilty.
The circuit court’s order continued, quoting yet another portion of Cannella’s testimony in which he referred to the colloquy: “When asked if he recalled having a conversation with [Hayes] about the decision … whether to pursue a defense of not guilty by reason of insanity or an ordinary not guilty defense, [Cannella] responded, ‘Yes, immediately prior to the on the record colloquy, I had spoken to him.’”
At least three times, then, Cannella testified under oath that he had an in-court colloquy with Hayes regarding the abandonment of the insanity defense. Having
Which brings me, at last, to the federal district court’s decision before us on appeal. As revealed by both the transcript of the hearing that it conducted and its written order, the district court got tripped up—and more than a little frustrated—by the lack of documentary proof corroborating Cannella’s state-court testimony that he had an insanity-related colloquy with Hayes. I’ll start with the hearing, where the district court repeatedly (and pretty brusquely) pressed the state’s lawyer for evidence—over and above Cannella’s sworn testimony—that the colloquy in fact occurred. One illustrative example:
THE COURT: That’s a yes or a no. Is there an on the record colloquy with the Court and Mr. Hayes and Mr. Cannella concerning the waiver of the insanity defense?
[STATE’S ATTORNEY]: I would say yes.
THE COURT: Show it to me.
[STATE’S ATTORNEY]: If you look –
THE COURT: Show it to me, the record cite.
[STATE’S ATTORNEY]: I’d have to go through my –
THE COURT: That’s why we’re here.
[STATE’S ATTORNEY]: Okay. May I first say –
THE COURT: No, you may not first say anything. You may give me the record cite.3
Later, the district court candidly confessed its disinclination to believe Cannella’s testimony that he had the colloquy—notwithstanding the state court’s acceptance of it—absent additional corroboration. In particular, the district court
I mean, it’s just not there. The only exception being the one thing that is not challenged by some directly contradicting evidence and that is Mr. Cannella’s statement that there was a conversation, and I don’t know anything else that’s in this record that supports what Mr. Cannella says happened.
And on the district court’s view, it seems, the state had to produce that kind of corroborating evidence to clothe the state court’s factual findings in the deference that AEDPA prescribes:
The trial court’s finding—it’s not magic because they say it, it’s magic because it is supported by competent evidence. Evidentiary findings are entitled to deference, credibility findings are entitled to deference, but the deference is based upon showing that it’s supported by substantial competent evidence, which “substantial” doesn’t mean what normal people think it means, it means some scintilla of evidence.
The district court’s written order is more of the same. The court acknowledged Cannella’s testimony at the state post-conviction hearing: “Counsel represented to the state post-conviction court that he decided to abandon Hayes’s insanity defense based, in part, on a colloquy between himself, the trial judge, and Hayes, in which Hayes allegedly chose to pursue a straight ‘not guilty’ defense.” The district court even quoted part of the same trial-court exchange that the post-conviction court had cited, in which, to repeat, Cannella had said the following:
[O]n the 17th of this month to be exact in this very courtroom I explained to him in detail and in front of Your Honor and [the prosecutor] the notice of intent to rely upon the defense of insanity that
I had filed explaining to him in detail and he indicated that he wanted to proceed with a not guilty plea and at that time I withdrew the notice.
For the district court, though, neither that exchange during the trial nor Cannella’s state post-conviction testimony was enough. In particular, the district court said—as it had forecast in its comments during the hearing—that the trial transcript did “not support [Cannella’s] assertion” that he had an in-court colloquy with Hayes about the insanity defense. More particularly still, the court fixated on the fact that the record of proceedings on February 17, 2005, to which Cannella had adverted in his statement to the trial court, didn’t itself reveal any such colloquy. From that premise, and notwithstanding Cannella’s later testimony during post-conviction proceedings, the district court concluded that “[c]learly there was no on-the-record discussion with Hayes about the insanity defense (or any other issue), nor was there any indication that Hayes wanted to proceed with a not guilty defense.” The court once again faulted the state’s lawyer for her inability to muster documentary evidence to corroborate Cannella’s testimony: “When asked specifically to show this Court excerpts of the record which supported her argument to the state appellate court that counsel had discussed with Hayes the difference between a ‘not guilty’ defense and a ‘not guilty by reason of insanity’ defense, [the state’s lawyer] could not do so.”
Having concluded that the state post-conviction court was wrong to credit Cannella’s testimony about the colloquy, the district court proceeded to hold that
Having freed itself of the obligation to review the state court’s decision deferentially under AEDPA, the district court proceeded to conclude, on de novo review, that Hayes was entitled to relief on his Strickland claim.
* * *
A brief housekeeping coda, before I proceed. We now know that the district court was right about a couple of things: First, Cannella didn’t have an in-court insanity-related colloquy with Hayes on February 17, 2005, as he mistakenly stated in his exchange with the judge during Hayes’s trial. Second, the federal-habeas record doesn’t include a transcript memorializing any such colloquy. That’s not to say, however, as the district court intimated, that the colloquy never occurred. To the contrary, we now know, with the benefit of hindsight, that an in-court colloquy
All of this is neither here nor there for purposes of the discussion that follows—for better or worse, the transcript evidencing Cannella’s February 21 colloquy isn’t properly before us. After the state filed its notice of appeal in this case, it located the February 21 transcript and moved the district court for relief under Federal Rule of Civil Procedure 60(b). The district court denied the state’s motion and, for reasons unexplained, the state failed to appeal that denial. So, while it’s helpful to know that a simple misunderstanding led to all the consternation over the existence (or non-existence) of documentary proof that the insanity-related colloquy occurred, the record for today’s purposes is precisely as it was when the district court rendered its decision. That record, which I accept, shows (1) that Cannella clearly testified during state post-conviction proceedings that he had the colloquy with Hayes but (2) that there was no hard documentary evidence to corroborate his testimony.
II
As I read the district court’s decision, I see two fundamental—and overlapping—errors in the way that it dealt with the state post-conviction court’s factual determination that Cannella had “credibl[y]” testified that he had an in-court
I will address the district court’s errors in turn.
A
The first, to me, is straightforward—the district court purported to apply
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of 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.
To be sure, the district court recited
And the district court’s unstated assumption—that before a federal habeas court can accept a state court’s factual finding based on a credibility determination, it must be able to point to corroborative documentary proof—is not just illogical, but also unlawful. Our decision in Nejad v. Attorney General, State of Georgia, 830 F.3d 1280 (11th Cir. 2016), is very nearly on point. There, a
We reversed, emphasizing that the state court could reasonably have concluded that “the trial transcript did not reflect everything that was said during the trial.” Id. at 1291. We held, then, that the absence of documentary proof to corroborate a witness’s sworn testimony did not constitute the clear and convincing evidence necessary to reject a state court’s factual determination. Reiterating what we had said earlier, we emphasized that “[f]ederal habeas courts have no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” Id. at 1291–92 (quoting Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011)).
It seems clear to me that the district court here failed to accord the state court’s credibility determination the deference it was due under
B
Separately, I worry that the district court’s order reflects a misunderstanding of
As I read its order, the district court conflated
The district court’s confusion, it seems to me, led it to conclude that (what it took to be) an (e)(1)-qualifying error—that is, a factual determination that has been “clear[ly] and convincing[ly]” proven false—necessarily and ineluctably leads to a holding that the state-court “decision” in which that determination appears is itself “based on” an “unreasonable determination of the facts” within the meaning of
Before doing so, though, I should first acknowledge that the district court’s confusion is both understandable and forgivable. Questions about the interplay
There have been hints, to be sure. In Miller-El v. Cockrell, for instance, the Court emphasized that subsections (d)(2) and (e)(1) are “independent requirements.” 537 U.S. 322, 341 (2003). It therefore faulted the Fifth Circuit for merging them to require something that AEDPA’s text doesn’t—namely, that a habeas petitioner “prove that a decision is objectively unreasonable by clear and convincing evidence.” Id. In rejecting that hybridized standard, the Court gestured toward the two provisions’ respective functions. “The clear and convincing evidence standard is found in
Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary,
§ 2254(e)(1) , and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding,§ 2254(d)(2) .
Miller-El was a start, but in the years since it was decided, precisely how subsections (d)(2) and (e)(1) relate to one another has remained an open question. See, e.g., Rice v. Collins, 546 U.S. 333, 339 (2006). During that time, the Court has twice granted certiorari specifically to address that issue, only to bypass it. See Wood v. Allen, 558 U.S. 290, 300 (2010); Burt v. Titlow, 571 U.S. 12, 18 (2013) (“We have not defined the precise relationship between
In the absence of any controlling decision, the circuits remain split—or, like the district court here, confused—over the exact relationship between subsections (d)(2) and (e)(1). See Fields v. Thaler, 588 F.3d 270, 279–80 (5th Cir. 2009) (collecting cases); Lucien v. Spencer, 871 F.3d 117, 127 n.4 (1st Cir. 2017); Bryan R. Means, Federal Habeas Manual § 3:82 (2021) (describing the variety of approaches taken by circuit courts). Most courts that have addressed the subject seem to have held that
And to be fair, we’ve been a little inconsistent ourselves. In some cases, we’ve just bracketed the question of how subsections (d)(2) and (e)(1) interact. See, e.g., Cave v. Sec’y for Dep’t of Corr., 638 F.3d 739, 747 (11th Cir. 2011) (“We have not yet had an occasion to completely define the respective purviews of (d)(2) and (e)(1), and this case presents no such opportunity.”). In others, we’ve given weight to
To my mind, careful attention to
Clearly, subsections (d)(2) and (e)(1) share some of the same space, and there is some logical relationship between them. But it seems to me that the district court misunderstood that relationship. If the petitioner can’t discharge his burden under
The point: A petitioner’s failure to carry his burden under subsection (e)(1) necessarily means that he can’t carry his burden under subsection (d)(2), but a petitioner’s success in carrying his burden under (e)(1) does not necessarily mean that he can carry his burden under (d)(2). Here, Hayes couldn’t meet
III
It seems to me that a proper review of Hayes’s petition should have proceeded essentially as follows: All of the state court’s factual findings should have been presumed correct under
* * *
The Court is quite right to reverse, and I join its opinion doing so. I’ve written separately because I fear that the district court’s order is wrong in ways that the Court doesn’t address, in that it evinces a fairly serious (if understandable) misconception about how
Notes
562 U.S. 86, 98 (2011) (emphasis added). Now, to be fair, there may also be some tension between Richter and the Court’s even more recent decision in Wilson v. Sellers, 138 S. Ct. 1188 (2018), which—albeit in a different context—seemed to privilege a state court’s “reasons” over its “decision.” In any event, the question whether a federal court should apply AEDPA deference to a state court’s overarching “decision” of a habeas petitioner’s Strickland “claim,” or instead only to the particular components of that “claim” that the state court specifically addressed, I leave for another day and for those higher on the food chain. For our purposes, I agree that Rompilla is on point, binds us, and permits de novo review of the state courts’ prejudice determination here. Cf. Knight v. Fla. Dep’t of Corr., 958 F.3d 1035, 1045–46 (11th Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021) (Newsom, J.).By its terms
§ 2254(d) bars relitigation of any claim “adjudicated on the merits” in state court, subject only to the exceptions in§§ 2254(d)(1) and(2) . There is no text in the statute requiring a statement of reasons. The statute refers only to a “decision,” which resulted from an “adjudication.” … Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for§ 2254(d) applies when a “claim,” not a component of one, has been adjudicated.
THE COURT: Are you serious?
[STATE’S ATTORNEY]: Oh, I’m sorry, Your Honor. I apologize. I was worried I couldn’t find it. I totally –
THE COURT: Well, this is a Federal Court, not a football field.
[STATE’S ATTORNEY]: You know what, I apologize to this Court. I was just nervous about finding it. I take this hearing very seriously.
THE COURT: Well, this is a person’s life at stake.
[STATE’S ATTORNEY]: I’m so sorry, Your Honor.
THE COURT: Well, get yourself together then.