David Ronald Chandler v. United States

(citing at 127 “When minimum Creighton, but see contacts have been estab- Rudzewicz, King Burger lished, v. U.S. often the interests of the plaintiff 2174, “If the question 105 S.Ct. and in jurisdic- the forum the exercise an individual’s contract with an whether tion will justify even the serious burdens party automatically out-of-state alone can placed on the alien defendant.” Asahi in establish sufficient minimum contacts Industry Metal Co. v. Superior Court of forum, party’s the other home we believe California, 102, 114, 480 U.S. (em- clearly it the answer is that cannot.” (1987). 94 L.Ed.2d 92 in phasis original)). Creighton, In dis- reasons, For the we foregoing find that Columbia, trict court for the District of Ministry is not entitled to sovereign Qatar subject held that was not person- immunity under the FSIA because the ar- jurisdiction al under a minimum contacts exception, 1605(a)(6)(B), § bitration and purposeful analysis, availment because activity commercial exception, offered, accepted, the contract “was 1605(a)(2), § apply under the factual cir- Qatar pursuant in performed sponsor- to a alleged juncture. cumstances at this Fur- ship arrangement Creighton between thermore, the district court per- does have Qatari contractor.” Id. 127-28. addition, jurisdiction sonal Ministry. over specified the contract that was Therefore, subject Qatar, to the laws of payment deny- was the district order court’s Qatari riyals Creighton’s made bank ing the Ministry’s motion to dismiss is Qatar, account alleged breach AFFIRMED. Qatar.

occurred Id. at 128. Ministry misstates the situation by finding personal jurisdiction

arguing play

violates notions “fair and sub- justice” Ministry

stantial because the act, in only regulatory

involved one that of wheat,

approving import the contract to concerning a “negotiat- contract which was CHANDLER, David Ronald ed, executed, performable in Yemen.” Petitioner-Appellant, disagree. Having We determined that the v. Ministry was involved more than “one act,” regulatory the contract antici- itself America, UNITED STATES of pates further contacts between the two Respondent-Appellee. parties nations. One of the to this con- No. 97-6365. tract corporation was a United States who required provide “U.S. wheat No. Appeals, United States Court (none grown better” which is in Yem- Eleventh Circuit. en) be imported to Yemen. Perfor- July required logically mance inter- contact and States, action the United as discussed (such contract designating a U.S.

bank payment point and a of departure

for shipping). Creigh- Unlike facts

ton, the contract did not state it sub-

ject Yemen, to the laws of there were dealings

direct parties between of both

countries, Corporation see Francosteel CHARM, at 628

M/V

Cir.1994), and the direct effect occurred

with the defendants’ failure to open

letter credit the New bank. York Martin, Brothers, P.C.,

John R. Martin Atlanta, GA, Revell, Zalkin Natasha Law Zalkin, of Natasha Office Santa Rosa Beach, FL, for Petitioner-Appellant. Jones, Douglas Shirley McCarty, G. I. AL, Erickson, Birmingham, Robert J. DC, Washington, for Respondent-Appel- lee. ANDERSON,

Before Judge, Chief TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, BARKETT, HULL, WILSON, and MARCUS Circuit Judges.* EDMONDSON, Judge: Circuit Petitioner, Chandler, David Ronald was sentenced death for murder further- continuing ance of enterprise criminal 848(e)(1)(A). § under 21 U.S.C. We af- firmed Petitioner’s murder conviction and death sentence on appeal. direct United Chandler, States v. 996 F.2d 1073 Cir.1993). Petitioner then filed section petition challenging his conviction and sentence on grounds. Among several Petitioner, things, invoking other the Sixth Amendment, claimed he received inef- fective assistance of during the counsel— phase sentencing of trial —because his trial investigate counsel failed to and character witnesses. The court re- district jected Petitioner’s claims and denied relief. affirm.1 We * earlier, Judge Ed Carnes recused himself and did not the district court and in our participate now-vacated, decision, this decision. panel we affirm the district court’s denial of habeas relief for Peti- 1. We conclude that Petitioner's claim of tioner’s other claims. ineffectiveness warrants more Therefore, discussion. for the set out reasons and trial of a codefendant observed the

BACKGROUND attor- from the defense reviewed material marijuana ran extensive Petitioner to the CCE defendants neys of other operation growing distribution ex- selection charge. He consulted January Pe- Alabama. Northern interviewed at pert. And trial counsel Jarrell, Ray titioner had offered Charles Piedmont and 67 witnesses in the least couriers, Sr., marijuana Petitioner’s one of area, small commu- Hill Petitioner’s Esom Shuler, a suspect- Marlin to eliminate $500 true not to be a nity. Believing client informant; thought Jarrell has ed said try- kingpin, spent also time drug counsel 1990,2 joking. May On Petitioner Trial drug kingpin. find “real” ing to saw Jarrell’s house. Petitioner Shuler counsel, in fre- throughout Petitioner warned Jarrell Shuler Petitioner, quent with Petitioner’s contact cause them trouble stated: going to brother, and Petitioner’s wife. go care of him “You need take under- got and I Jarrell still $500.” trial charge, the murder To contest referring Peti- stood Petitioner to trial evidence at counsel introduced pay earlier offer to Jarrell should tioner’s in the Government’s show weaknesses left; Jar- he eliminate Shuler. Petitioner is, attacked case: morning drinking spent rell and Shuler caused, reality idea that Petitioner had to lake heavily. The two men then drove day, to be killed. pertinent on the Shuler two target practice guns. for some history animosity between A existed turned a target practice, Jarrell During as a result of Shuler’s Jarrell Shuler Shuler, twice, him and killed gun on shot marriage to sister. Shu- former Jarrell’s to and informed Peti- him. went Jarrell ler had his ex-wife mother-in- abused Shuler; tioner that he had killed two (Jarrell’s respective- mother sister and law disposed to the scene and of men returned own ly), Jarrell with his provided which for, but did not body. the Jarrell asked an killing Jarrell —on motives Shuler. receive, the $500. reasons— n own earlier occasion and for his charged In a nine-count indictment kill actually attempted to Shuler: Jar- had drug, continuing Petitioner with various gun head and placed had a to Shuler’s rell enterprise, conspiracy and of- criminal pulled gun the but the loaded had trigger, fenses, including procuring Shuler’s mur- addition, In counsel just gone not off. trial continuing in criminal der furtherance of the wit- key stressed that Government enterprise. case, him- including in this Jarrell nesses self, in for lesser sen- exchange testified Redden, Drew Petitioner retained Jarrell, time, Furthermore, tences. over law- prominent Alabama criminal defense made inconsistent statements about had him at trial.3 Redden ac- yer, to defend responsibility for the murder: Petitioner’s the tively acquittal, especially on pursued (Jarrell) it; do stating that he did not charge a murder.4 In procuring prepa- (Jarrell) ration, counsel, that alone it inten- things, stating he among other during prosecutor said By way, law In March state enforcement offi- "extremely talented at the home of trial that Redden an cers executed search warrant counsel, dealers, best the state probably the in one Petitioner’s based on informa- defense by provided Shuler. [of Alabama].” tion cases, hearing, the section 2255 trial counsel 3. Redden had over 1000 had for- 4.At tried guilt prosecutor Attorney’s his view "the of murder merly at the U.S. testified that in Office, part capital degree was the weakest formerly president of the Alabama to a ... was Bar, College he stated [Government’s] case.” And was a member of American Gov- Lawyers Society based the circumstances of the of Trial and International "there was a fair Best ernment’s he believed of Barristers. He is listed in America's guilty Lawyers would be found not for his defense work. For chance” his client criminal get likely” that would background, including and it was even "less he further academic hon- ors, penalty. Directory. death Law see the Martindale-Hubble

13H (a tionaUy personal animosity; about to kill having somebody tape because ad- (Jarrell) claiming mitting that did it but had jury requested guilt- to review at the accident; and, last, implicating it deliberations), stage was made three Petitioner. months after the murder Shuler and did talking indicate Petitioner was Nevertheless, jury convicted Peti- about Shuler. Trial counsel also entered indictment, on all tioner nine counts (1) stipulations: into evidence two other including charge. the murder prior had Petitioner no criminal rec- implicitly found Government (2) Jarrell, ord, killer, and the actual beyond proved doubt that Peti- reasonable (who implicated Jarrell’s son was also induced, pay, tioner had offered to murder) prosecuted would never be to kill A separate Jarrell Shuler. death for Shuler’s murder. Both of these penalty sentencing hearing on latter the murder stipulations were day. count was held the next factors as pertinent matter of law under the statute. sentencing, alleged At the Government addition, trial counsel called as charac- (1) aggravating statutory three factors: and presented ter witnesses to the jury the intentionally engaged that Petitioner had humanizing Petitioner’s wife resulting death of conduct anoth- and mother.6 (2) er, killing procured Petitioner (3) money, another for that Petition- that the Given evidence was unconverted er committed the murder after substantial (not Petitioner) actually Jarrell had planning premeditation. The Govern- victim, argued killed the trial counsel again ment offered no new evidence at sen- at sentencing that the evidence phase tencing and relied on the absolutely about conclusive whether Jar- presented guilt phase. at the rell, state, especially his drunken truly induced Petitioner when Jarrell

Defense counsel did evidence as Trial pointed shot Shuler. to evi- arguments mitigation, among well as earlier, dence Jarrell things, stressing other residual November doubt.5 jury using stipulation completely independent He reminded the of Pe- — had — put pistol “a about date the death of the victim— the nose of [Shu- titioner — statement, taped that a pull[ed] made Petitioner trigger intending ler] response question, a explained In trial counsel jury testi- 6. Trial counsel the miti- hearing fied at the section gating based on testimony nature of the women's this professional judgment,” his "reasonable way: jury had not that a believed reasonable would testimony of Petitioner’s wife and [The given impose penalty the death the weak case was here to show that there was a mother] against his client: it, stability life here a that has had that that jury I did not feel a reasonable minded quality had to it has some and think that him, impose penalty the death on apparent you when looked those two given testimony the not as to what had family ... and the fact that here is a ladies Jarrell, occurred in November when Sr. stability.... got that had tremendous He’s Shuler, to kill but what undertook also oc- children, they by are three all his wife. day curred on the he did him. that kill And apparently Here is a man who has some is, they that that had consumed tremen- skill of his hands who has worked build- beer, dous of there at amount out house, ing parents' his house and his good they Lake for a while. Snow's I think they've brothers' and worked with houses given gone had of and out beer back and springs him and off the 80-acre farm gotten more beer. And that even if one father, way that his father had with his assumed that Ronnie Chandler had offered trees, sawmill, they They built a cut well, back. $500, him this was still act the of lumber, rocks, they they made collected things drunken mind overwhelmed other demonstrating built and lives houses $500 offer. than (an purpose opposed lives with some to life supports argument And this view the ar- worthless. So that that is a fac- gument mainly based on residual doubt about shooting) you certainly have responsibility for tor I think that Petitioner’s the tri- sentencing pressed phase. just right obligation al counsel at the the the consider. mitigat- that the Judge Hancock found Trial gun kill had misfired. him”: the proffered witnesses independent malice value of reiterated counsel (1) the a result undercut on cross-examination: for the victim as Jarrell harbored to a time Trial counsel character evidence related personal history. good of their crimes; could of Petitioner’s jury how Petitioner remote asked the (2) killing, ignorant time many Jarrell of the witnesses were motivated left) (after had Petitioner had altogether, Petitioner’s criminal activities when Jarrell “twenty-three beers on char- ignorance of Petitioner’s showing consumed (3) he shot date, twenty-three acter; before beers and all of witnesses showed Trial counsel stressed man.”7 of Petitioner.9 strong bias favor in this case penalty imposing death then The district court considered punishment” and unusual would be “cruel circumstances and found aggravating ... consider- and a “tremendous mistake aggrava- that two jury determined ing every circumstance of this case.” “particular- ting existed based on factors however, that the first jury, found another, encouraging ly egregious crime”: unani- two factors existed aggravating him, upon police to kill a infor- dependant Petitioner be mously recommended that assisting disposing mant and then court, The district death. sentenced “[wjeighing this body. The district court— Hancock, so. Judge against evidence weak character strong aggravating Pe- exhausting appeals, his direct After prejudice accepted” to vacate his convictions titioner moved —concluded Therefore, district court proved. § 2255 and under U.S.C. sentence claim. denied relief the ineffectiveness trial in accordance with new moved in- many grounds, Fed.R.Crim.P. 33 DISCUSSION ineffective assistance counsel cluding sentencing. of Petitioner’s light argues Petitioner that he re Hancock, court, claims, Judge the district ceived ineffective assistance evidentiary hearings. a series conducted during sentencing phase trial. review Petitioner’s claim of ineffective claim, We Petitioner On the ineffectiveness Head, assistance de novo. Williams v. that counsel was ineffective asserted (11th Cir.1999). 1223, 1227 To suc char- failing investigate assistance, on a claim ineffective ceed hearing. at the acter witnesses incompetence must show both Petitioner evidentiary hearing, At section 2255 (1) prejudice: must show “[PJetitioner tes- presented witnesses who Petitioner fell below an representation that ‘counsel’s specific good acts Petitioner.8 tified to ” reasonableness,’ objective standard of presented Petitioner also (2) “[Pjetitioner must that ‘there show defense counsel Redden. children; a pointed bor’s and had offered allow 7. Counsel out Petitioner’s also killing alleged to Jarrell about stay statements house when her husband woman to at his Shuler, all, only at if were made made died. char- twice—the first occasion Jarrell himself joke. Counsel reiterated to acterized a cross-examined, witnesses testi- 9.When place, thing a that was jury, "if it took it was knowledge drug fied that of Petitioner’s deal- precipitated.” jury The did not find ex- not officer, gun police ing, attempt to turn aggravating planning to he factor. tensive an having and statement about to kill someone up again, change would not their he were set example, Peti- witnesses testified that For opinion district court of Petitioner. The boy bought not had shoes for who did tioner testimony "largely found that this nullified given money family to any; had to a have persuasive value” of this character son; grocer- help bury bought their them had likely not credit because be them; thought people had needed ies drug dealing who "believed that witnesses bought for members his construc- dinner per- were irrelevant to a buy and violent crimes money to crew who did not have the tion own; money neigh- given son's character.” their lunch

1313 that, 1511, (2000) 1495, is a probability reasonable but S.Ct. 146 389 L.Ed.2d (most errors, unprofessional result counsel’s recent reaffirming decision would have been differ- proceeding merits of assistance claim ineffective are Strickland). Wainwright, ent.”’ Darden v. squarely 477 U.S. governed The 2464, 168, 2473, S.Ct. 91 144 106 L.Ed.2d purpose of ineffectiveness is review not — (1986); v. Taylor, accord Williams grade performance. counsel’s See Strick -, 1511, 1495, land, 2065; 120 S.Ct. U.S. 146 104 S.Ct. at see also v. White (2000). (11th says 1218, L.Ed.2d 389 Petitioner that Singletary, 972 Cir. 1992) (“We incompetent his trial counsel because are in grading not interested investigate his trial failed lawyers’ and to performances; we are interested And, present trial, character evidence. Petition- in whether the process adversarial at says fact, er that —but for trial counsel’s adequately.”). recog worked We investigate to present art, failure and nize “[r]epresentation an is and probability evidence—a reasonable exists an act or is unprofessional omission that jury would not for a may have voted one case be sound or even brilliant in Strickland, death sentence. another.” S.Ct. lawyers Different gifts; have different

SOME PRINCIPLES GOVERNING fact, differing as well as circumstances PERFORMANCE case, range case to means the of what approach reasonable at trial To aid in assessing courts claims inef must be broad. To state the obvious: the fective assistance under the Sixth Amend ease, lawyers, every could have ment, court, Supreme Court and this something done something more or differ bane, particularly sitting en have out set So, But, ent. omissions are inevitable. principles presumptions.10 certain We possible issue is what is or “what recognized given princi these prudent appropriate, or what is ples presumptions, “the cases which constitutionally v. compelled.” Burger can petitioners habeas ... properly prevail 3126, Kemp, 483 U.S. 107 S.Ct. are few and far between.” Waters v. (1987). Thomas, 1506, 1511 Cir.1995) 97 L.Ed.2d 638 (en banc). A review of principles II. persuasion The burden of presumptions appropriate.11 seems petitioner on a prove, by preponder evidence, competent

I. ance of counsel’s standard counsel’s performance performance pre is “reasonableness was unreasonable. under See Strickland, 2064; vailing professional see norms.” Strickland S.Ct. also (“[DJefendant 2052, Williams, Washington, U.S. (1984); must representation 80 L.Ed.2d accord show that counsel’s — -, v. Taylor, Williams U.S. objective 120 fell below an standard reason- principles presumptions 10.Most these 11. There are as- different kinds of ineffective Here, sistance expressly were out three claims. Petitioner does set ineffective allege trial counsel’s Supreme assistance cases in which the Court (mental impaired by incapacity or specifically addressed the issue ineffective interest, faith, physical), a conflict of bad sentencing stage assistance of counsel at the Therefore, an unreasonable mistake of law. investigate for failure to miti- nothing today we decide these other about gating evidence. In each the Court de- kinds of cases. termined counsel was not ineffective. See 776, 3114, Burger Kemp, v. 483 107 U.S. S.Ct. "The test for not ineffectiveness is whether 12. (1987) (death case); penalty 97 L.Ed.2d 638 more; perfection done counsel could have is 168, Wainwright, v. Darden 477 U.S. 106 S.Ct. required. not Nor is the test whether best 2464, (1986) (death 91 144 penalty L.Ed.2d attorneys might criminal defense have done case); 668, v. Washington, Strickland 466 U.S. more. Instead the test is ... whether what 2052, (1984) (death 104 S.Ct. 80 L.Ed.2d 674 range did was ‘wide within the of reason- ” case). penalty Waters, professional able 46 assistance.' (en banc) (citations omitted). F.3d at 1518 1314

ableness.”) (internal proved to be particular ultimately defense quota- citations and omitted). ineffectiveness. must unsuccessful demonstrate The estab- petitioner tions particular that and identified acts lish “indulge must IV. Courts “were counsel outside omissions of strong presumption” counsel’s [the] competent as- range professionally wide of and that performance reasonable 3126; S.Ct. at see Burger, sistance.” 107 all decisions significant “made counsel (stat- Strickland, 104 at 2064-65 S.Ct. also professional of the exercise reasonable petitioner must show “counsel’s Strickland, 104 S.Ct. at 2065- judgment.” objective an representation fell below stan- Head, 66; v. 185 F.3d accord Williams is, dard reasonableness” —that (11th Cir.1999) 1223, (presuming 1227-28 performance was unreasonable counsel’s assistance). rendered effective counsel ... prevailing professional “under norms Thus, adjudged incom cannot counsel circumstances”). considering all way petent particular performing case, long taken scrutiny approach in a as III. “Judicial coun strategy.” “might be considered sound highly must be deferen performance sel’s 13 168, Strickland, 106 Wainwright, v. 477 U.S. 2065. Darden tial.” 104 S.Ct. at We (1986). 2474, 2464, 144 91 L.Ed.2d second-guessing per avoid counsel’s must strong favor presumption not follow that Given the formance: does “[I]t petitioner’s per burden of approach competence, we would counsel who takes an not guilty rendering though presumption inef is not have is chosen suasion— insurmountable —is 14 Waters, heavy at one.15 Kim 46 F.3d fective assistance.” Morrison, (en banc). 365, 477 106 Nor does the fact that a melman v. U.S. [petitioner] presumed, important judicial tence ... is and the 13. "It is to note that scruti attorney's appropri ny presumption by proving of an is rebut this must ately highly because the craft of representation deferential attorney’s was unreason- science; trying fact, is far exact cases prevailing professional able under norms oblig replete it is with uncertainties challenged action was not sound Singletary, atory judgment Morrison, calls.” Bolender v. strategy.” 365, v. 477 U.S. Kimmelman 1547, (11th Cir.1994). 2588, 16 F.3d 91 L.Ed.2d 305 added) (citations omitted). (1986) (emphasis principle, In accordance with this courts ambiguous or not An silent record is sufficient enjoy recognize that counsel does not must disprove strong continuing pre- time the benefit of unlimited and resources. Therefore, sumption. is "where the record Zant, (11th Rogers 13 F.3d See [counselj's incomplete ac- or unclear about Cir.1994). Every is faced with tions, presume did we will that he what time,, resources, zero-sum calculation on done, rea- should have he exercised to pursue defenses at trial. Williams, professional judgment.” sonable And, second-guess must not coun court 1228; Waters, 46 185 F.3d at also F.3d see Waters, (en strategy. 46 F.3d sel’s at 1518-19 (en banc) (noting though that even testi- banc). By "strategy,” we mean no more than evidentiary hearing mony at am- habeas concept: this duct, trial counsel’s course of con biguous, acts trial indicate that counsel directly prohibited that was neither professional judgment). exercised sound law, directly required law nor for obtain ing a result for his client. For favorable presumption write The about which we example, calling some witnesses and not oth presumption partic- here is that the not some strategic epitome is "the ers decision.” and, lawyer reality ular defense focused (en banc); also Id. at 1512 see id. at 1518-19 then, deliberately do a decidеd do or not to (en banc); Thomas, Felker v. Instead, presumption specific act. (11th Cir.1995) (whether pursue residual presumption is which we refer that what strategy doubt or another defense counsel, left lawyer particular defense trial —for second-guess); court must not which example, presented witnesses he or did what Zant, Stanley v. Cir. present' acts some reasonable —were 1983) (stating that reliance on line of defense lawyer might do. strategy). to exclusion of others matter Supreme The Court instructed that has strong presumption there is "a that counsel's presumption impacts on the burden range proof throughout conduct falls within wide reason- and continues Strickland, professional conflicting dropping just because able assistance.” out some compe- presumption at is introduced. "Counsel's S.Ct. 2065. This like evidence is 1315 2586, (1986); 2574, rely 91 L.Ed.2d 305 chosen to on” the S.Ct. defense that did Williams, added)); v. (emphasis United Fort see 120 S.Ct. at 1511 States also (6th son, Cir.1999) (de 730, (“[T]he 194 F.3d 736 that defendant must show counsel’s termining findings district court performance was (quoting deficient.” —without evidentiary or even hearing defen 2064)). Strickland, 104 S.Ct. at —that dant had not presumption overcome of ef V. The a reasonableness of fective assistance because court “[could] inq objective performance counsel’s is conceive of strategic numerous reasonable Darden, uiry.16 106 2474 See S.Ct. at trial). motives” counsel’s actions at (noting not performance that counsel’s And because pre counsel’s conduct is objective fall “an below standard of rea reasonable, a petitioner sumed show sonableness”); Williams, see 120 also unreasonable, peti that the conduct was a (same); Darden, S.Ct. at 106 at 1511 S.Ct. must competent tioner establish that no (noting 2474 are “there several rea taken counsel have the action that reasonably Waters, why sons counsel could have his counsel did take.17 See 46 “presumption dentiary hearing in a tri- pursuit innocence” criminal whether on trial of al, required defense, "the which defendant not actual innocence instead of intoxi proof come forward with of his innocence defenses, cation defense or a combination of guilt once is introduced to a avoid strategic decision); was informed v. Bonin guilty.” directed verdict of Black’s Law Dic- Calderon, 815, (9th Cir.1995) 59 F.3d (6th. ed.1991). tionary presumption This (holding petitioner alleged that trial —where competence disproved by peti- must be processes impaired by counsel’s mental were continually tioner. Petitioner bur- bears the drug objective because an standard use— persuasion den of on the constitutional issue competence, used evaluate counsel's further, competence (adding preju- attorney’s "once an conduct is shown to be element) dice on the issue ineffective assis- reasonable, objectively it becomes unneces Strickland, tance of See counsel. S.Ct. sary inquire the source into of the attor (stating “defendant must show ney’s alleged shortcomings”). See also Roe v. performance counsel’s was deficient” and -, 1029, Flores-Ortega, - U.S. prejudice). show defendant must also (2000) ("The 145 L.Ed.2d 985 relevant government acquire Never bur- does question is not whether counsel’s choices competence, den to show even when some strategic, were contrary might whether were reason evidence to the be offered able.”). petitioner. strategy, uphold lawyer’s To we need We look at the acts or omissions counsel attempt lawyer’s process- to divine the mental petitioner alleges that the are unreasonable underlying strategy. es "There are count- lawyer and ask whether some reasonable provide ways to less effective assistance could have the trial conducted in that man- Strickland, any given case.” objective ner. Because the standard is an lawyer expected 2065. No can be to have one, (at post-conviction that trial counsel ways. all considered If a defense law- evidentiaiy hearing) perfor- admits that his A, yer pursued course it is immaterial was mance deficient matters little. See Tarver some other reasonable courses of defense (11th Cir.1999) Hopper, v. (that all) lawyer did not think of at existed (noting perfor- that "admissions of deficient lawyer’s pursuit and ‍​​​​​‌‌‌​​​‌‌‌​‌‌​‌​​‌​​‌​‌‌‌​‌​​‌​‌‌‌​‌​‌‌​​​‌‌‍that the course A significant”); mance are not see v. alsо Atkins A, not a deliberate choice between course (11th Cir.1992) Singletary, 965 F.2d B, strategy lawyer's course and so on. The (“[Ineffectiveness question ais which we And, inquiry A. course our is limited decide, per- [so] must admissions of deficient is, A, strategy, whether this course decisive.”). are attorneys formance generally reasonable one. See Dugger, Harich 1470-71 lawyer might If some reasonable have not (11th Cir.1988) (en banc) (concluding—with- pursued a called a certain defense or not evidentiary hearing out whether counsel's witness, why we we certain fail understand strategy ignorance arose from his of law— ground would order new trial compe- that trial counsel's lawyer the actual not used the defense or hypothetical competent tent because trial, witness in the first trial: at the new reasonably could have taken action at trial (even one) counsel), lawyer different a reasonable actual replacing identical might again panel opinion, not use witness or defense. vacated 813 F.2d 1082 Cir.1987) identical, (2-1 opinion) (remanding evi- If trials are one not be two should 1316 (en banc) (“The counsel, con- that his presumption test has al

F.3d at 1512 stronger.18 nothing lawyers what the best is even to do with duct reasonable Provenzano, Nor is the test even have done. (stating would 148 F.3d at 1332 See have lawyers would done. good what most guess to second “strong reluctance reasonable law- only ask whether some We greater is where strategic decisions even acted, in the trial could have yer by experienced were made those decisions circumstances, counsel acted defense “[t]he and that criminal defense counsel” trial.”); Dugger, also Harich v. see is, attorney experienced an the more more (en Cir.1988) banc) (11th 1464, 1470 rely on his likely it is that decision (“It enough petitioner claim is not experience judgment rejecting own ignorant of Florida his counsel was reasonable); Burger, a is see also defense” prove ap- must that the law. Petitioner (reciting im- at 3118 counsel’s 107 S.Ct. counsel would not proach taken defense finding pressive opinion credentials compe- by professionally used have been assistance).19 effective counsel rendered counsel”); Singletary, v. Provenzano tent Cir.1998) 1327, reviewing (noting counsel’s 148 F.3d VII. is using that counsel’s conduct unreasonable performance, court must avoid competent “that petitioner shows no distorting hindsight” “the effects of choice”); counsel made such would have of coun must evaluate reasonableness (in concluding Burger, 107 S.Ct. at 3124 perspec “from performance sel’s counsel’s using not character that defense counsel’s Strickland, the time.” 104 S.Ct. at tive at standard, witnesses met reasonableness court, easy all for a “[I]t 2065. is too out that district court pointed Court examining defense after has counsel’s lawyer— judge presumably reasonable — heard unsuccessful, proved to conclude that a mitigating who evi- proffered particular act or omission of counsel was it would have aided dence did not think Id.; Waters, unreasonable.” see 46 F.3d case). petitioner’s (en banc) (“The widespread use of at 1514 attacking tactic of VI. courts are examin When ‘might showing proves an tri- what have been’ ing experienced example, practice constitutionally inadequate "[i]t con- 20.For is common other attacking death petitioners their sentences to stitutionally adequate. say they affidavits from witnesses who submit mitigating supplied have additional [] could evidence, very lawyer accept We that even the best called ... had been day. could No conduct is have bad one's Waters, right questions.” they asked inquiry. Just as we above the reasonableness (en banc). But 46 F.3d mere "[t]he lawyer inexperienced an can be know that fact that other witnesses have been Cronic, competent, U.S. United States testimony might have available or that other L.Ed.2d 657 is not a been elicited from those who testified (1984) (inexperienced does mean ineffec- ground prove ineffectiveness of sufficient tive), recognize experienced we so (noting that counsel.” Id. such witnesses occasion, incompetently. lawyer may, on act nothing the luxu- show more than "with point Experience Our one: due small is ry opportunity time to focus re- respect. some record, parts specific on sources of made inevitably identify post-cоnviction counsel will practicing had been law in ''[Counsel] And, basing shortcomings”). inquiry Wayne County years, had for about 14 served (if investigation one had been whether an time, attorney county’s of that as the most undertaken) would have uncovered and had served the Board of Governors of (or witnesses) judg- example anis percent Bar About 15 State Association. acts from the benefit of hind- counsel’s law, practice and he of his criminal sight. inquiry was proper articulated in capital had tried about a dozen cases. It Rogers v. Zant: "Once we conclude that de- apparent well-respected lawyer, that he was a clining act, investigate further a reasonable practice thoroughly sen- familiar we do look see what a further community.” Burg- investigation juries produced.” tencing in the local (11th Cir.1994). er, at 3118.

1317 (en banc) client”); Waters, hindsight— than 1511 nothing that is clearer at (noting that Supreme prohibited Court has the rule that we will not except perhaps scrutiny of “[^Intensive counsel and [the performance through judge trial counsel’s rigid requirements creation accept- of] for hindsight.”). assistance”). able The law must allow VIII. No absolute rules dic and for approaches by bold innovative tate what is reasonable And, lawyers. the Sixth Amendment Strickland, lawyers. 104 S.Ct. at 2065 not quality meant “to improve legal (“No particular set of detailed rules for representation,” “simply to that ensure satisfactorily conduct can take counsel’s criminal a defendants receive fair trial.” variety Strickland, account of the of circumstances 104 at S.Ct. 2065. range faced defense counsel or the Thus, IX. no duty absolute legitimate regarding decisions how best to investigate particular exists to or a facts defendant.”);

represent a criminal also see Strickland, certain line of defense. Under — -, Flores-Ortega, Roe v. U.S. 120 conducting counsel’s or conducting an 1029, 1036-37, S.Ct. 145 L.Ed.2d 985 investigation need be reasonable to (2000) (rejecting bright-line rule coun- that fall within the wide range competent always” duty sel “almost has to consult assistance. 104 at that (stating S.Ct. duty counsel “has a to make reasonable with defendant appeal, reaffirming about investigations or to make a reasonable de that Court “consistently has declined cision that particular investigations makes on impose mechanical rules counsel— Kimmelman, unnecessary”); 106 S.Ct. cf. even might when those rules lead to better (failure timely at 2588 to file motion to representation”). “Any such set of rules suppress unlawfully obtained evidence constitutionally would interfere with the to constitutionally amounts ineffective as protected independence of counsel and re- sistance when failure is based on counsel’s strict wide latitude counsel must have unreasonable mistake law about making Strickland, in tactical decisions.” duty to certain infor supply Government’s 2065; at see also id. at 2066 trial) mation to defense counsel before “ (stating rigid requirements [would] Williams, added); (emphasis 120 S.Ct. at dampen impair indepen- the ardor and (failure investigation conduct inef counsel, dence of defense discourage based, lawyer’s fective in part, because cases, acceptance assigned and under- mistake law that information not discove rable).21 attorney mine the trust between lar, per Supreme We do not read a we Williams declare do not understand the Court lawyer se present law high- rule of that a defense must part make the ABA Standards land, sentencing character witnesses accepts est law of the even one (no phase lawyer or defense matter good policy. a a those standards reflect We may what client or have informed in- remember that these ABA Standards were him) investigate Strickland; every structed must case also mentioned in but the Court purely might Strickland, see if character witnesses per went se shun rules. help 2065; Roe, sentencing exist who be of at the S.Ct. at S.Ct. at 1036- accord phase. question We understand to create me- We read to decide this Williams no Williams lawyer investigation performance: capital rule chanistic of law all for about where a (with record) presentation significant capital of evidence cases. defendant a criminal he, (6 generally Virginia, repeatedly See Cohens v. 19 U.S. has admitted before trial that Wheat.) 264, 399, fact, (1821) (Mar- L.Ed. did kill the victim in course of a shall, C.J.) ("It a is maxim not to be disre- theft so of factual defense innocence where, garded, general hardly expressions, every existed counsel, opinion, phase, are repeatedly to be taken in connection with while defense expressions telling jury explain why the used.”); in which case those are that was hard Britton, life, pres- spare 523 U.S. should defendant's Crawford-El 1584, 1590, (1998) "night- 140 L.Ed.2d 759 ents no evidence the defendant's is, course, (“There (criminal important neglect by an marish” childhood parents, repeated difference holding beatings by between in a and the severe his fa- case reason- ther, home) supports holding.”). particu- abuse be- foster —not can decision not always ‘strategy’ include And counsel need not ... can make a lawyer investigate [and] pursuing pursu or not investigate before matter (even decision that no what reasonable Investigation ing a line defense. produce, wants investigation might nonexhaustive, investigation) preliminary course.”); see also steer clear of certain reasonably to required for counsel is not 209 1252 Haley, F.3d Holladay a line of defense investigate decline to (11th Cir.2000) circuit has (noting that our Strickland, 104 S.Ct. at thoroughly.22 See rule of rejected per “a se ineffective assis- made 2066 choices after less (“[Strategic fami- counsel does not consult tance where investigation are reasonable complete than members”). re- For counsel’s ly example, pro extent that reasonable precisely particular liance lines of defense judgments the limitations support fessional he or not exclusion others —whether (“In any id. ineffec investigation.”); a other defenses—is investigated those ease, not particular tiveness a decision and not strategy is ineffective matter directly for investigate must be assessed petitioner unless can the chosen prove circumstances, in all the reasonableness itself, course, in was unreasonable.23 heavy measure of deference applying added)); (emphasis judgments.” counsel’s X. Because the reasonableness Williams, (noting at 185 F.3d 1236-37 investiga (including acts what counsel’s rejected that “strate this circuit has idea reasonable) “critically” depends tions are gic can be considered reasonable decisions by upon supplied [peti “information by ‘thorough only preceded if are own [petitioner’s or “the state tioner]” ” that, ef investigation’ stating and to be actions,” evidence of petition ments or fective, ‘pursue is not “required counsel dealing and er’s statements acts until it fruit or until all every path highly bears relevant to ineffective counsel Zant, Strickland, ”); hope Rogers v. 13 F.3d 104 withers’ assistance claims. (11th Cir.1994) nature, into counsel’s eonver- (“By inquiry its 2066. “[An] ferent, thought allowing different under defense counsel such evidence outcomes cause (defense compelling tes- would not be counsel Strickland. impor- hearing it tified at a that was habeas he tant evidence which would have used had recognized, ap- 22. we have Strickland’s As it), "incorrectly he he known because investigation proach real- toward "reflects the thought” law access to that state barred his ity lawyers enjoy do not the benefit juvenile social services records in and time, energy or endless financial resources.” be which such information could found—the lawyer Rogers, spends at 387. How lawyer’s performance at defense inherently time and resources limited was deficient. great also deference the court. entitled present But case is different from White, ("[G]iven See 972 F.2d not Williams the kinds of money finite time face a resources of involved, that are but in its other material attorney, simply is not realistic to defense example, here factual facts: defendant's investigate substantially expect all (and is); counsel to guilt strongly disputed still here plausible reasonably lines of defense. A com- no one contends the defense counsel’s presenting petent attorney rely not more character witnesses often on his own must (he view the law did not due to mistaken experience judgment, without the benefit prohib- think a search for such witnesses was investigation, deciding of a when substantial would, or that ited law character witnesses forego particular or not whether line law, excluded); be as a matter of here defense defense....”). wit- counsel has never said that character very helpful would or that would nesses be always Requiring certain do (and have used them if he had known of them (for example, acts to be found effective inter- judge who has heard seen neighbors viewing petitioner’s some pertinent character has said witnesses evidence) mitigation would contravene the helpful opinion, they would have not Supreme directive no set of de- Court’s introduced); here defense counsel did raise be tailed rules counsel’s conduct should factors unavailable Williams. See used to evaluate ineffectiveness claims. Williams cannot command outcome for Strickland, case; materially the cases’ are dif- facts dence.25 [petitioner] may Hopper, sations with the be critical See Tarver v. 169 F.3d Cir.1999) (11th to a assessment of counsel’s investi- proper (noting that coun decisions, gation just may as it be critical “required sel is to investigate proper to a assessment counsel’s other all available mitigating evidence to (“[W]hen reasonable”) litigation Id. a de- decisions.”24 Burger, (citing be 107 S.Ct. at given 3126); Zant, fendant counsel reason to believe has Stanley v. pursuing investigations Cir.1983) (no certain present general duty harmful, fail- fruitless even counsel’s evidence); Waters, character see also may

ure pursue investigations those (en banc) F.3d at (noting this court unreasonable.”). challenged later be Supreme Court held counsel’s constitutionally to be suffi XI. Counsel is not required cient mitigation pro when no evidence was defense; present every nor nonfrivolous available). See, duced even it though mitigation required present counsel all e.g., Burger, 107 at (finding S.Ct. 3126 evidence, mitigation even the additional counsel even though pre effective counsel incompatible evidence would not have been all); mitigation sented no at evidence Dar Waters, with strategy. counsel’s See 46 den, (same). 106 at 2474 S.Ct. (en banc) (noting F.3d at 1511 that no duty present possible absolute exists to all principles guide These the courts on the mitigating evidence available: deci “Our question “reasonableness,” touch- the any sions are inconsistent with notion that lawyer’s stone of a performance under the present mitigat counsel must all available Constitution. evidence.”). Considering circumstance courtroom, PERFORMANCE IN THIS CASE realities more is not always Stacking can better. defenses- hurt says Petitioner that his trial coun a advocacy requires case. Good “winnow performance during sel’s the sentencing witnesses, ing out” arguments, some evi phase of trial was his unreasonable. Trial dence, on, and so to stress others. See counsel sentencing phase at the called Pe Rogers, F.3d at (citing 13 388 Jones v. testify, titioner’s mother and wife to ad Barnes, 3308, 745, 3313, 463 U.S. 103 S.Ct. factors, statutory vanced two mitigating (1983)); Waters, 77 L.Ed.2d 987 see also lingering and stressed doubt about Peti (en banc) (“There 46 F.3d at 1512 is much guilt. in proper tioner’s true Our court’s wisdom trial in the lawyers adage quiry is limited to whether this course of alone.”). leaving enough well about have one. action reasonable And, begin strong we with the duty presump

XII. No absolute exists given to introduce or evi- was. character tion that it We conclude that — And, mitigation 24. at when circumstances of claim evidence in relevant, peti make these conversations phase, right right is the free of this ever) (if rarely satisfy tioner can his burden governmental presenta- with interference disprove presumption of assis effective generally tion of evidence. See Hitchcock v. disclosing tance without the substance of 1821, Dugger, U.S. 481 107 attorney-client these conversations. Cf. (1987). question L.Ed.2d 347 of ad- States, Laughner v. United F.2d missibility of evidence is different (5th Cir.1967) (refusing petitioner, to allow reasonably whether acted in not in- requested evidentiary who hearing, a section 2255 troducing Burger, See the evidence. attorney-client privilege invoke concerning at 3123 n. And the cases likely "eliminate the one of evidence source right to be constitutional of defendants not Williams, allegations”); contradict his precluded by the or limited state or court ("Given clarity F.3d at lack presentation mitigation in their evidence at record, presume we [counsel] talked sentencing that, support proposition do not [petitioner] part as of his effort to ascertain present possible if counsel does not all any mitigating whether there was circum mitigation sentencing, at then has defendant evidence....”). stance right. been denied some constitutional capital 25. While Petitioner is correct that de- right just fendants have about at focusing acquittal on said before that taking in this case and record

principles ineffective assistance sen trial then on residual doubt at failed, as matter has (instead claims —Petitioner mitiga other tencing forms law, presumption. to overcome tion) Tarver See can be reasonable. Hopper, 715-16 Cir. Although Petitioner’s claim 1999). this Especially case-— when —as have done that his counsel should overwhelmi guilt the evidence hot more, at we look what something first petitioners rarely can ng,28 expect we lawyer did in fact. Trial counsel focused (if ever) lawyer to be ineffective prove then, at sen obtaining acquittal on seemingly relying reasonable This de tencing, lingering doubt.26 strategy to defend client. reasonable one.27 We fense counsel, hearing, sentencing argument, coun- Trial section In his defense fair 'lingering doubt” that he had believed "there was a sel did not use the words testified But, government guilty, doubt.” "residual would be found not chance” client court, pointed out first brief filed in this get in its likely” and was even "less that would argument sentencing at- defense counsel's penalty given the death the circumstances government’s aggravating factors: tacked the are the murder case. These views reasonable expressly included that Petitioner the factors considering the trial. "intentionally intending engaged conduct in we when refer to trial coun- this resulting [the be killed and [the victim] that testimony explaining personal sel's his mental And, argue trial counsel did victim’s] death.” strengths processes (assessing pros- of the showing length that that evidence some case, opining on the value charac- ecution’s killer defendant in fact had caused actual on), accepting ter and so we are witnesses evidence; disputed to the victim was shoot views, represent that words heartfelt his his pointed to the weakness the evi- and he testimony crediting as that is we are not his ground for as a a sentence other than dence true; point absolutely lawyer’s we to this argued example, lawyer "What death: for illustrating thoughts testimony as the kinds of prompted How [the killer] in actions. lawyer in some the circumstances could—we anything that was said to him on much reasonably trial have had. The conclude— counsel’s him, impel day motivate [Petitioner] that today’s testimony is not essential twenty-three do he did after him to what affirmance. date, twenty-three on that beers before beers he shot the man." accepted that is 28.We have residual doubt sentencing In the context of strategy employ perhaps the effective most proceeding, argument, defense counsel’s Tarver, sentencing. See 169 F.3d 715-16 stressing strong guilt, the lack of evidence of study concluding (citing review "the law that "linger- be cannot be said to ing unconnected thing capital can best defendant do to im- recognize argument doubt.” We prove receiving a life his chances of sentence argument ap- lingering-doubt and would not guilt”). ... about Coun- to raise doubt finding prove a district court’s otherwise. he sel cannot be held to be ineffective when denied, guilt in fact is At least when objective- has taken a line of defense which preparing de- "lawyer’s and effort in time ly reasonable. guilt capital phase fend his client in jury in this case was instructed at the to count at the case continues necessary guilt phase way: "[I]t this is not 710, phase.” Hopper, 715 Tarver v. guilt proven beyond defendant's be (11th Cir.1999); v. Wain- see also Darden possible only required all doubt. It is 168, 2473, 2464, wright, 91 477 U.S. 106 S.Ct. proof exclude reasonable Government’s (1986) (rejecting petitioner's ar- L.Ed.2d guilt.” concerning the defendant’s As doubt spent gument the time that counsel had shows, recognizes that this the law instruction sentencing preparing between conviction jurors person guilty who found a of a have mitigation en- the case for because "counsel may well trial, crime about his true still doubt preparation prior gaged extensive Thus, lays guilt. points itself law preparation in a manner included sen- good argument added); the foundation for a based ”) tencing McCree, (emphasis Lockhart 162, 1758, 1769, lingering doubt is later when asked 476 U.S. 106 S.Ct. death, (1986) ("[I]t impose the ultimate and most irremed- seems obvious to L.Ed.2d 137 most, all, argu- punishment. Nothing about this capital iable us if not cases much fatalism; signals guilt phase ment or evidence аdduced at the submissiveness straightforward bearing penal- stressing doubt is a will have a on the residual the trial also ...”). ty phase. and sound defense. Trial did not character was effective wit- pursue counsel because mitigation;29 subjected but he had oth- nesses could have been to harm- witnesses for er in hand. That trial ful or mitigators counsel’s cross-examination invited other dam- evidence); approach (preparing presenting aging Wainwright, a case Darden v. 168, guilt 2464, 2474, for doubt about Petitioner’s instead of 477 U.S. S.Ct. evidence) (1986) (same); focusing mitigating character L.Ed.2d 144 Strickland v. 668, the Washington, is even more clear in reasonable 466 U.S. (1984) (same). light questionable value of the miti- 2057 & 80 L.Ed.2d 674 gating character evidence. Trial counsel in case has testified that thoughts he had these and concerns.

A lawyer reasonably could have déter- mined that character evidence would not section hearing, At the trial counsel be compelling lawyer although this case. And a testified he knew that testi- reasonably could also about mony fear character Petitioner’s character would fact, evidence, counterproduc- evidence be be might, mitigation admissible as might provoke tive: it harmful thought cross-exam- character witnesses would not Misgiv- ination and rebuttal witnesses.30 very helpful compelling, in this case. ings hurtful questionable about cross-examination and would be at wheth- “[I]t least rebuttal witnesses have been decisive er a impact type sufficient character Supreme Court it opinion when determined could overcome fixed See, e.g., Burg- effective. based on the evidence ... [whether other er v. Kemp, change U.S. could from life it] to death. Or 3124-25, (1987) (concluding 97 L.Ed.2d 638 death to life.”31 The trial record indicates that failure introduce character that counsel used other evidence and tries to much questioning Petitioner make of trial ration of and limited for his asking counsel’s Petitioner's the wife—after and the wife that, mother. Petitioner contends guilty verdict—to find witnesses and of trial right ques if counsel had asked the trial hearing saying counsel’s at the tions, section 2255 lawyer the could have elicited more hope that he a wit- had that some character mitigation testimony from them. But see Wa presented might (though nesses be to him he Thomas, ters hope really stated that it was not a “that I 1995) (en (counsel banc) Cir. not ineffective spent a lot of time or on or that effort felt failing testimony to elicit more from the on’’). spend there was that much to time perfection required). witnesses because is not request Petitioner claims this of his wife Considering opening concerns about really shows that trial counsel wanted charac- door, lawyer might a reasonable limit his well ter but witnesses had not invested the time was, questioning of and as it the wife mother: circumstance, energy and to find them. This escape did the wife and mother cross-exami true, even would not be decisive: recall if altogether. nation especially inquiry objective that our is an one testimony The that was reminded elicited grade are attempting that we not to this husband, jury the father, that Petitioner was a performance, looking counsel’s are but at (as was) humanizing and a son: just trial see if circumstances. to the trial was Moreover, jury adequate. addressing The wife and mother also re- the evidence of a least, quest jury people reminded the that innocent would strongly to the wife—at as —shows counsel, put Bringing fact if this laudable that trial like most suffer man was death. good lawyers, family’s pain opportun- trial was to the atten- flexible existence jury powerful istic: he not did think character witnesses tion of the in and of itself. that, sometimes, helpful good (noting just be or use of his time to at See id. pursue, lawyer might but not having reasonable the stand humanize witness on can altogether considering foreclose petitioner eyes say himself jury). We cannot fact, presented they some if were to him. Constitution demanded that more be done presented one such character witness was with these witnesses. counsel; trial counsel did use him. not 31.Trial counsel testified: presented were Two character witnesses Q: sentencing stage: specific And that of the de- Petitioner’s wife and instances argues helping people probably mother. Petitioner also fendant the most trial evidence, compelling type prepa- counsel was ineffective for his limitеd a mere of that community considered thought individuals doubt. He lingering

stressed (even spe- “that drug evidence to be a dealer” and character evidence [Petitioner] Petitioner) would not by cific acts good community people [who] there were jury they sure Peti- were prevent him.” were afraid of —if this murder —from procured tioner had very Trial also had seen this counsel And penalty.32 death giving Petitioner the testimony how character witness’s trial evi- also whether questioned trial counsel cross-examination could twisted specific dence of instances of Petitioner’s A wit- arguments opposing counsel. compelling, would have been good acts phase testified that Peti- guilt ness was considering the Government property him for a given some tioner had ways was in all arguing that Petitioner was mar- newly the witness house after man, he arguing that had commit- bad but ried, did though even witness acts, including offer- specific ted criminal Trial money pay for the land. ing to for a murder.33 pay paint the attempted counsel then knows, every lawyer As reasonable trial Trial story as evidence. counsel good-act that counsel called character witnesses Government, accurately noted that could be cross-examined the Govern- however, argue this used said, such ment. And was, reality, man gift Petitioner’s helpful not be cross-examination laundering operation.34 money of a part that, It is based his case. uncontroverted using about That counsel’s concerns people on his earlier interviews con- “some character were reasonable is pertinent community, he knew that Well, they person A: opinion good is one I don’t think claimed that he’s a person. just he I think that was a bad thing, say but to he did this for me is even specific guilty of a claimed that was recognized you You not? better. disagreed, which I can't offense with say I Well, admissibility recognize its as a A: just that he a bad that the case was nature, compelling I wouldn’t test it. person. Q: type of testimo- You didn’t think ny very helpful, your testi- would be is that popular anyone 34.To familiar with books mony? crime, organized such films as Mario about your question, I A: Well I'm—if that’s Godfather, Puzo's the idea a criminal picture things say as it whole helpful many people community in his time, going at that existed give goodness per- (perhaps on account of his penalty on what him death based haps very helpful good- maintaining out heard, up they had their minds were made community will of which the defendant that, compelling enterprise) that would operating as to doubted would be criminal man, fact, appropriate generosity word. be an familiar. of a drug kingpin, might being convicted of he need to 32. Trial counsel stated that did not lawyer stereotypes. For a reenforce those say know what a would to determine witness worry counterargument evi- about even to compelling would be at whether the witness deeds is good dence of not unreasonable. you He what mitigation. stated that assume evidentiary hearing The record from the piece testimony might be and “assume provides examples other of how character get testimony you might that most favorable aggravating. could be evidence considered judgment, the most and then form some that had One man testified $10,000 Petitioner donated world, judgment some reliable but church, Government compelling might be." judgment about how it brought entire out on cross that Petitioner's agree. We $10,000. year reported income And those who Petitioner even testified record shows: The regular churchgoer, admitted on cross Q: ... like [Habeas Counsel] [Instances dropped that his attendance had off in acts], good would have been some- that [of Stanley years preceding his arrest. See government's thing Zant, to refute the claim that (11th Cir.1983) (ques- F.2d person, just a bad wouldn’t [Petitioner] was would tionable whether evidence have it? by perceived as because ag- A: If that had been the perceived [Trial Counsel] church attendance could be claim, church, yes. gravating: "if went to the then [he] Q: right. culpability did he known the extreme All But claim should have conduct”). his they not? evidentiary the transcript firmed of the whether counsel would even have by present- At for section 2255 relief. hearing possessed ed had he evidence it because effectively hearing, Government did weaknesses). had internal substantial wit proffered cross-examine the сharacter Trial counsel also testified that he was judge nesses. district court —the “fearful” of rebuttal witnesses: “I felt same, very presid experienced judge who community the law enforcement in Pied- seeing murder trial ed at the itself —after mont, part of the hos- county, witnesses, think hearing these did not [Petitioner], antagonistic tile to him. helpful to case be they were Petitioner’s they certainly pro- And that could have they were cause nullified on cross-exami duced of that sort.”35 A reason- witnesses Burger, nation. See able could decide lawyer to limit reliance (concluding that trial reason counsel acted testimony exposing character instead of calling ably in not witness at jury (right new sentencing) to a judge fully later heard at ha- district string of could Government witnesses who hearing helpful); beas and found not to be testify to Petitioner’s bad acts.36 We must Singletary, see also White v. (11th Cir.1992) (questioning trial approach conclude that counsel’s (1) deciding sentencing: wheth- Trial counsel testified that come out at Petitioner put requires a given magnum handgun er to on character evidence fifteen- .357 determination, son, balancing (2) which he made in year-old a wit- case, and (Scottie this that he to evaluate the "[had] Surrett) kept guilt ness out at the — impact along everything else that phase by implicat- Petitioner's trial counsel— you The record the fol- evaluate.” contains missing in the murder Petitioner lowing exchange: “dope stealer.” Q: you Petitioner, I believe in deter- And stated that important, More who bears the put mining whether or not to on a charac- presented burden in never this possibility ter witness view of the that the of trial fears counsel about hurtful government cross-examination con- imaginary were rebuttal witnesses and base- cerning requiring various bad acts a bal- example, less. For sel, Petitioner’s coun- habeas your part, act ancing to determine evidentiary hearing, could witness, or not the value whether of the precisely asked trial counsel what trial coun- outweigh pos- character witness would why, questions sel feared but the were damage sible done that cross examina- just We not asked. must not assume that tion; is that correct? defense counsel's worries were baseless. For Well, balancing A: [Trial Counsel] know, actually trial all we discussed favorable and and what factors unfavorable client; in- this issue with and the client saying normally is that that doesn't I am potentially formed him harmful witnesses witness, putting you back off on a character or information. they might a fact but it’s be asked have Furthermore, lawyer competent even a you about heard so and so. may exactly what be unable to articulate Q: you perform balancing Did cross-examination and rebuttal witnesses this case? scope discovery fears because in federal A: I think more of what See, e.g., United criminal cases limited. produced said have been and I think I had Fischel, 686 F.2d States v. just on of wit- cross-examination Cir.1982) ("Discovery in criminal cases is [] But rebuttal nesses. witnesses. limited.”). narrowly But the lack of articula- argues tion does make his at trial 36. Petitioner worries counsel's incompetent. itself, may, opening about the door on The fear of the unknown cross-examination presentation lawyer to and the of rebuttal witnesses be reasonable. a defense For negative capital were unreasonable because informa- be a bit averse in a is no risk case incompetence. tion about Petitioner had come out earlier at in this indicator And recall case, stage (and use) guilt Apart the from the trial. other trial counsel had so, point timing the mitigators; having of when evidence comes it was not a case of his itself, Williams, important may way go. Compare be as the evidence only one points. we these (deeming incompetent make S.Ct. counsel at 1514 Government, to introduce miti- appeal We in re- because failure voluminous note on evidence, sponse questioning, pointed gation two exam- even if it contained some out juve- ples hear- of evidence from the section 2255 evidence about defendant’s unfavorable trial, record, might only ing, al- not introduced at which nile was unreasonable when be- shrouded the conversations a reason- counsel sentencing proceedings was privi- attorney-client one. tween themselves able know what extent lege; so we do not record, Petitioner, given on this has us trial counsel’s acts.38 Petitioner informed Peti- no cause to doubt this conclusion. Therefore, given the absence of tioner never testified his section record, must assume counsel we trial hearing. of a The reasonableness responsibility out professional carried his acts, investiga- including lack of counsel’s mitigation with his client.39 and discussed excluding or character witnesses tion Head, 1223, 1235 See Williams v. depends “critically” sentencing phase, (11th Cir.1999). addition, In the section information the client communi- upon what Strickland, trial points: is clear two transcript cated to counsel. he dispute' Petitioner and trial counsel testified —without this —that where we are. rely mitigating value directs. But I want to sure ternative was to on the might which voluntary brutal murder think that be situations in of a confession to I there impacted mistake of law like im- question and when counsel's answer an to a evidence). on the of other omission plicitly indicate was said.” what himself; given censored 37.Trial counsel judge of con- 38. The disallowed substance objections, district court Petitioner's attorney-client privilege versations based attorney-client shielded the conversations. At rulings he on an and said would make further hearing, the Government asked trial instance-by-instance basis. Habeas counsel arrest counsel if he had discussed Petitioner's objected argues that he had issues Georgia following with Petitioner. The scope hearing. We ob- outside colloquy then occurred: serve, however, objection made that an Your Hon- I’m aware of [Trial Counsel]: whether counsel discussed and sustained on waiver of or’s order with reference to though piece of evidence with his client even confidentiality and this is not a— challenging fail- Petitioner was trial counsel’s Honor, would, I [Habeas Counsel]: Your sufficiently investigate author of ure object going any attor- for the record into piece also ob- this of evidence trial. We ney/client light of the fact conversations in counsel careful himself serve trial gone any that we have not into of those on his not to touch on the conversations with scope beyond it’s direct so I think troubling petitioner We client. find it when direct do not think that of our and I inef- thinks can meet burden to show examination touched on those issues which though he fectiveness even shielded would constitute a waiver the attor- ney/client pertinent privilege. Our dealt avoided conversations which would examination investigation solely regard with his with trial counsel allow courts to assess what regard specific other witnesses learned client. from his particular anything with re- witnesses. Not Habeas claims he did not shield counsel gard to client. I ha- conversations with his coun- Petitioner’s conversations with the trial gone ven’t into that one whit. And don't says mitigation; about habeas sel regard privilege think I’ve waived the in that Even no one asked about it. if habeas coun- scope nor do that it is within the I believe objection had not sel raised to shield examination. direct conversations, pertinent we stress he should Honor, very Attorney]: Your [U.S. have asked about them because Petitioner allegations basis their deal with what showing bears burden of that trial coun- or [trial knew should have known counsel] And, sel’s acts unreasonable. as Strick- were place. at the And I time that this took says, client and did is land what the said clearly very think what client told him proof. critical to that concerning may have advised him information is relevant to cross-examina- attorney-client privilege was 39. The effect of tion. briefs, argued Government in its argu- both sides this issue at oral addressed going think to be The Court: this is an argued, sufficiently This was see situation, ment. issue by area a situation case- that on 370, Hardison, basis, v. 813 F.2d 373 n. FSLIC rulings. by-case may we have to make (11th Cir.1987) ("briefs liberally are read added). (Emphasis court district then espe- appeal”), ascertain the issues raised objection. sustained counsel’s And habeas counsel, stand, cially considering that we make no new law the end of trial at this issue, existing raising merely apply exchange judge: on this told the "I’m not an objection. going to law circuit. I'm do what the court case from this met with buttal less than frequently compelling Petitioner before witnesses —as (or spoke trial and that no one who during and allocated rea- mitigation, some came forward with havе) with trial counsel ever sonable could his time and lawyer character he facts about accordingly. Trials full of resources are would be thought helpful.40 Nothing in in- imponderables. the record force short, counsel, lawyer’s dicates with this con- pro- his In trial based on judgment experienced range as an trial duct was outside of the of reason- fessional (or lawyer, determined some reasonable able conduct. have) could had a

lawyer his client guiding principles When the (or acquittal, fair chance for saw some record, are to the have) applied the record will character lawyer reasonable could legal allow one conclusion: potential dangers as- Petitioner witnesses —with with and re- light sociated cross-examination is due no relief.41 (without contradiction) Strickland, objective Washington counsel testi- Trial standard. v. preparing try "what I fied: was to do was B 1283-84 Cir. Unit banc) J., 1982) (en (Johnson, the case not concurring to defend and there was volun- among peo- at that —in part dissenting part), teered ple of that rev’d U.S. presented anything 2070-71, I talked with or to me 80 L.Ed.2d helpful (1984).) that I considered would be sen- reviewing lawyer's areWe con- phase.” tencing "nobody ever And come asking only duct at trial and some whether [examples things and said forward good such lawyer way. reasonable could have acted that only example type and the acts] legal lawyers' light In the standards for thing that we had was in He evidence.” performance, enough we know to decide this further, "nothing stated when, volunteered honestly case. We cannot remand I considered me that of value in there.” See court law- the district concluded that the trial Francis, generally Collins deficient, yer’s performance already we (11th Cir.1984) (counsel not ineffective judgment we would know that reverse that investigating mitigation for not witnesses in law, contrary given because it would when defendant failed to alert to their counsel record. existence). Strickland, See also The record in this case—even when read ("[W]hen given has defendant presents ques- legal Petitioner’s this favor— pursuing to believe that investi- reason certain proved lawyer’s tion: a defendant Has his harmful, gations would be or even fruitless is, performance totally to be deficient—that pursue investigations counsel’s those failure beyond outside border of the "wide may challenged later be unreason- range” ‍​​​​​‌‌‌​​​‌‌‌​‌‌​‌​​‌​​‌​‌‌‌​‌​​‌​‌‌‌​‌​‌‌​​​‌‌‍of reasonable sen- —at ”). able. (with prior tencing when defendant no record) procuring is criminal convicted of certainly It work have been less we lawyer has murder and invested most And, ap- us remand. understand energy defending against his time and con- pellate genuine courts should not resolve is- viction; guilt when the evidence of disputed facts facts are sues of when those overwhelming, relying largely on the testimo- material, law, light applicable ny variety of the actual killer who has told a case; so, the outcome of the we do not do promised who has he stories and But, view, seriously that. in our if we take executed; will not be when defense counsel principles out that we have set in this present evi- witnesses as well as other opinion, especially objec- dealing those mitigation; dence in when defense counsel reasonableness, tive no need remand did not other character witnesses who remand, principle About of law arises. works; past good testified would have to his particularly important: reviewing We are not when no knows what instructions and one quality specific lawyer's judgment availability about the information and use processes that underlie his conduct trial. supplied by character witnesses were defen- (We passed must remember that Strickland counsel; dant to defense when defense coun- through way Supreme this court on its to the pertinent said that the sel has never character judges Court that some of our be- —who compelling would be witnesses lawyer's performance lieved that the in Strick- them; nothing would have used when indi- inadequate land under the Constitution— pre- they cates that defense counsel's act in not held that were said view because senting particular lawyer more character witnesses was caused that the not convinced law; having actually thought-out some in that case had decision; made a erroneous view of the howevеr, Court, Supreme argued juiy. deter- when defense counsel lawyer applying that the mined be effective evidence that defendant 1326 that

strong presumption investigating presenting counsel was effec- case, the tive and the circumstances of character witnesses' —were unreasonable.42 heavy Petitioner has not met his burden to Nothing more needs to be said. The Con- sentencing, that prove counsel’s acts—at counsel, not stitution did demand trial focusing doubt and not largely residual actually prompted testably the killer do demonstrated based on uncontrovert- admitted evidence.”); Strickland, (an killing dispute argument the was in ed also see (Court say lingering-doubt legal applying we must be seen 2070-71 different context); argument given by the when defense rec applied than lower courts to standard stressed the lack of a criminal record declaring counsel for more ord and remand —without and that killer for client the actual factfinding not to counsel’s conduct —defense ineffective), not be executed? rev’g, be 693 F.2d 1243 Cir. law, 1982) (en banc) As we the we con- understand must (remanding to district court Considering "no.” clude answer is these findings because more district court needed circumstances, lawyer we believe that some to reach conclusion on ineffective assistance reasonably presented 1464, could not the char- issue); Dugger, v. 1470 Harich F.2d witnesses, although accept acter we also (11th Cir.1988) banc) (en question (deciding lawyers present- reasonably have other could remanding of dis ineffectiveness without for ed witnesses. that, factfindings). court And trict we note us, disagreement To the basic in this case briefs, party, in that the neither contended among judges about court's is not facts— requires remand. record insufficient happened happened, what law about —but Moreover, courts have decided ineffective important legally and what of facts kinds are appeal, on direct assistance claims without given objective legal standard. a less See, factfinding. the benefit of court district sense, disagreement academic our re- also Shukri, e.g., United States v. F.3d (for lawyers lawyers, us minds we are (7th Cir.2000) (denying ineffective assistance too) disagree any easily point can on almost appeal though of relief on direct even counsel proceed about how to in a trial and below issue not raised district court science, trying because cases is no exact no parties requested because both it and claim of level skill or excellence can exist which a incompetence rejected considering be could (who lawyer has been unsuccessful in a trial trial); Fortson, States record United v. case) intelligent can be removed criti- (6th Cir.1999) (on ap- direct hindsight.. cism in end There is no to what peal, deciding performance be- no deficient differently. have been done adequately developed al- cause record issue, the court to low assess merits of court, having district concluded that government did not contend that record was prejudice proved no not insufficient, court concluded further factual specifically perfor- address whether counsel’s unnecessary development was and because mance was deficient. But no remand re- court could "conceive of reasonable numerous (1) quired given developed in this case strategic motives” for counsel’s actions at tri- complete evidentiary hearing record with an added)). (emphasis alleged al And lack of (which argue does Petitioner was inade- in this record necessitates neither a quate and no testified at which one about Petitioner, ruling nor a remand but must what Petitioner had said his trial light bur- considered in the Petitioner’s using danger about benefit charac- presumption compe- den to overcome the tence, witnesses), (2) strong presumption ter is, to show ineffective assistance. counsel's trial that a acts at were acts reason- Montes-Mercado, States v. 2000 WL United taken, (3) lawyer able could have Cf. (9th Cir.2000) (unpublished opinion) reality heavy that Petitioner bears burden (refusing to conclude counsel ineffective for proof is not on ineffectiveness. Remand provide failing to acts at reasons required sufficiently when the record is devel- evidentiary hearing part petitioner because oped "complete understanding and a explanation); never asked United States possible separate issues is absence Torres, Cir.1988) (2d v. 845 F.2d findings.” Tejada Dugger, claim, (11th Cir.1991) (rejecting ineffective assistance (considering habeas is- court, court); of law considered district as matter sue not addressed district see Black, ah, per- proffered et because evidence of deficient Appellate Federal Procedure— Circuit, (1996) ("The necessary § formance did not "rise to level 11th 12:189 necessary strong presumption findings court's failure to make overcome the fact harmless when facts counsel’s was reasonable under constitutes error [Strickland]”). necessary judgment have been incon- novo, case, use wit- but review the more character we district court’s subsidiary findings only nesses.43 factual for clear Washington, error. See Strickland v. CONCLUSION 668, 698, 2052, 2070, U.S. (1984). L.Ed.2d 674 insufficient Petitioner’s evidence was acts prove that his counsel’s were court, hearing The district after tes- range professionally outside the wide of timony of 27 character witnesses Thus, competent assistance. Petitioner claim, hearing on the ineffective assistance has not met his burden the law to under found that the value of their prove ineffective assistance of counsel First, severely undercut three factors. prop- this case. Because Petitioner cannot most of the character witnesses’ knowl- relief, erly granted we affirm dis- is, edge “stale;” Chandler their trict court’s denial the writ.44 knowledge character good Chandler’s activities, AFFIRMED. illegal pre-dated Chandler’s familiarity had little witnesses COX, Judge, specially Circuit years leading up him the murder. DUBINA, BLACK, concurring, in which Second, many witnesses also evidenced a MARCUS, Judges, HULL and Circuit knowledge lack of about char- Chandler’s join: testifying they acter were unaware Judge I join opinion that, heard, Edmondson’s jury bought, as the Chandler separately full. I write because would large marijua- grew, quantities and sold § also affirm the denial of Chandler’s Third, na. the district court found that petition because Chandler has shown most of the character witnesses exhibited a prejudice alleged defi- counsel’s strong they bias for Chandler because tes- performance. cient tified if Chandler even had committed acts,1 opinions certain bad their of Chan- (without The court district assumed de- dler changed. would not have As the dis- ciding) perfor- that Chandler’s counsel’s found, high opinion trict court “a witness’s deficient, mance at had been little Chandler would have been of mo- relief, concluding denied that Chandler if ment to the believed witness The prejudice. failed to establish dis- drug dealing and violent were trict crimes prej- court’s ultimate conclusion as to question person’s udice mixed of law and irrelevant to a character.” Unit- answers fact, Chandler, F.Supp. review that conclusion de ed we States away majority we even hint course then to blast at the Never do that this way poor either the best or the reasonable lawyer with a simi- excess. So way proceed in this case. To decide the lar not know the ma- case does whether question, we not need to constitutional do jority opinion meant seemed what it things. decide such say minority it meant. or what said Jackson, Supreme The Robert H. Court question prejudice, About the court Government, System American 18-19 nothing. We But decides need not. several (1995). judges be inclined to affirm on account prejudice, perfor- of no even trial counsel’s 1. These included: mance was deficient. (1) Georgia arrest in while at- Chandler's today’s dissenting opinions, we About re- pounds tempting purchase 100 of mari- commenting, except that some of frain from juana; bring them mind the words of Justice Jack- (2) Georgia flight from Bureau Chandler's son: Agent Investigation and Chan- Skinner undiscriminating There has been much gun attempt to back dler's turn Skinner’s eulogy dissenting opinions. It is said scuffle; during a clarify on Skinner they the issues. do the Often (3) tape-recorded to a technique Chandler’s statement opposite. exact of the dis- that if were “set exaggerate holding confidential informant he senter often up’’ again, beyond meaning would have to kill someone. of the Court factors, (N.D.Ala.1996). summation, statutory mitigating admitted

1571 (1) mitigation “the that had no stipulation,were district court found that Chandler record, that trial counsel 21 evidence Chandler’s criminal U.S.C. prior (2) 848(m)(6); § have offered of tenuous value.” and would triggerman could Id. 21 penalty, not receive dеath U.S.C. 848(m)(8). pre- § Chandler’s counsel also findings about the The district court’s in the testimo- mitigating sented evidence findings, testimony of this are factual value ny of wife and mother at sen- Chandler’s A subject only to review for clear error. tencing. clearly factual erroneous finding court’s is “‘although if evidence to there is balance, prej- On whether Chandler was it, the on the en support reviewing court noted, is, as the udiced district court with the definite and tire evidence left convicted question. jury close The has been firm conviction that a mistake particularly egregious of a crime. Chandler ” Georgia Athletic University committed.’ me, appear strong given It does not Laite, 1535, As soc. v. 1543 756 factors, aggravating that the addition (11th Cir.1985) v. (quoting United States have weak character evidence would Co., 364, Gypsum States 333 U.S. United tipped mitigation. the balance in favor of (1948)). 525, 395, 542, L.Ed. 746 68 S.Ct. 92 conclude, therefore, I that the district court findings The district made about in was correct its determination that court and seeing value of this after prejudice, has failed to Chandler establish witnesses, findings hearing the and those ground and would affirm on that as well. in the I cannot support have record. con clearly TJOFLAT, that those erro findings clude are in Judge, concurring, Circuit neous. dissenting, in part, part: Accordingly, addressing question I. novo, prejudice weight de I little give question The before the en banc court is character could have evidence that reject- whether the district court erred ulti- sentencing. been introduced petitioner’s lawyer, claim that L. question mate Chandler has whether Redden, Drew rendered ineffective assis- prej- that performance shown deficient sentencing phase tance of counsel errors, him such udiced without by failing case to obtain evidence probability there is reasonable mitigation penalty pres- of the death mitigating balance of cir- aggravating jury. it to the as- ent The district court cumstances would have been different. sumed counsel’s Bolender v. Singletary, See deficient; constitutionally it nevertheless Cir.1994) Strickland, 1556-57 (citing because, rejected 2064). petitioner’s claim 466 U.S. view, the court’s evidence Weighing anew the and miti- aggravating (had would have factors, Redden found he looked gating jury note that the found it)1 (1) prompted aggravating in- two factors: Chandler imprison- to recommend sentence of life tentionally engaged intending in conduct ment instead of death. See United States resulting that Shuler killed and Shu- Chandler, death, 848(n)(l)(C); F.Supp. § ler’s v. U.S.C. (“In (N.D.Ala.1996)

(2) fact, procured killing by the Court is con- Chandler Shuler’s pay that there is promising something pecuniary proba- vinced no reasonable value, 848(n)(6).2 § bility 21 U.S.C. The two the result of the presented The Government 1. The evidence Redden have'uncovered could testimony petitioner’s Chandler committed the murder after sub- is the habeas counsel planning premeditation, presented during pro- stantial court district 848(n)(8), jury rejected ceedings petitioner’s § application U.S.C. but the relief 11.1996). § (Supp factor. U.S.C. under 28 of that test. prong different formance See Strick- hearing would have been land, 466 U.S. at 104 S.Ct. at 2064 presented.”); had been proffered evidence (“This requires showing that counsel made Washington, see also Strickland 668, 694, 2052, 2068, 80 errors so serious counsel was U.S. (1984) (To guaranteed the ‘counsel’ prejudice, functioning as prove L.Ed.2d 674 Amendment.”). by the the Sixth Amendment defendant Sixth prong the second counsel, record, examining After it concluded assistance of test for ineffective performance that Redden’s the sentenc- must show that there is a defendant “[t]he that, ing phase part failed that of the test as a probability but for coun- reasonable (after law, errors, refusing to of matter of set unprofessional sel’s result convictions) petitioner’s vacated his would have been differ- aside proceeding ent.”). (assuming death sentence and ordered pursue that the Government still wished to panel A of this court vacated the divided a death sentence on the murder convic- on denying court’s decision relief district tion) petitioner the district court to afford of coun petitioner’s ineffective assistance sentencing proceeding. a new See Chan- claim, case re- sel and remanded the for dler, Judge Chandler v. sentencing. See United Edmondson, dissenting, did not address (11th Cir.1999). States, 1297, 1310 question petitioner of whether had mitigating It held that the evidence Red Instead, he prejudice. shown Strickland uncovered, ha- den should have and which solely performance, Redden’s focused on proffered to the district court beas counsel and, panel’s reading with the disagreeing petitioner’s application support of record, as a matter of law of the concluded § (Supp. relief under U.S.C. consti- performance passed that Redden’s 11.1996), presented jury, (Edmondson, tutional muster. Id. at 1315 in the probably have made difference J., en dissenting). Today, sitting the court sentencing phase. outcome of the Id. and thus banc reaches the same conclusion (“[T]he this quality quantity unnecessary finds it to remand the case to evidence, almost all of which was available of fact and findings the district court for trial ... a reason at the time of creates performance of law on the conclusions probability but for counsel’s fail able test for ineffective prong of Strickland’s of this present portion ure to even small of counsel.2 assistance evidence, would not have re [petitioner] sentence.”) (footnote because the material facts the death dissent ceived omitted). investigation and concerning Redden’s deciding pe In addition to are in mitigating prejudice prong presentation titioner had satisfied the test, an evidentiary hearing An dispute.3 Sixth Amendment Strickland’s is, in all for section 2255 relief question application also addressed the panel trial; the tasks of re- per- respects, had bench petitioner whether satisfied court, ruling petition- disputed Redden failed to look later the It is not district relief, mitigating evidence for use sentenc- habeas er's motion for section 2255 ing phase (except petitioner’s two cir- any, that Redden’s failure to call concluded all, cumstances, stipu- which the Government were witnesses that habeas counsel lated, petitioner lacked a substantial petitioner preju- no able to uncover caused equally history criminal and that someone words, holding majority’s dice. In other receiving culpable would not be a death sen- mitigating today to seek is: counsel’s failure tence). Therefore, sentencing phase when the competent performance, evidence constitutes arrived, nothing Redden had if, appears peti- corpus, it that the on habeas witnesses, testimony jury except the of two satisfy prejudice cannot Strickland's tioner anticipate he did not until an whose prong. began. phase hour or so before the majority holds that Redden's failure to time, I in the court's 3. At the same concur perfor- look for evidence and his disposition petitioner’s remaining claims during sentencing phase passed mance years four for section 2255 relief. Sixth Amendment muster because then, testimony, applying Strickland’s solving the conflicts standard, concluded that Redden dis- facts, has weighing and then such finding duty pe- Amendment charged his Sixth according appropri- them their facts and in vain I have searched applicable rule of titioner. weight ate under the in a capital proceeding especially court.4 In habeas assigned law to the district — brought under 28 U.S.C. case, put has case—whether appeals the court of § § in which a United taken 2254 or tradition and over aside institutional upon took it itself Appeals record States Court court’s role. On a cold the district of fact rather than fact to resolve the issues various inferences of can from which fact-finding to the dis- remanding task drawn —some favor of reasonably be court, previously which held in favor of the trict petitioner, some Govern- heard from witnesses evidentiary hearing, judged ment —the court has the demeanor witnesses, of the and observed their credi- on both sides determined facts, and their demeanor.5 bility, weighed found and the 1498, Gaviria, fact-finding 1512 disputed ed States v. It cannot be that the (D.C.Cir.1997) (stating that remand is the the district court. See Unit- function lies with 1102, Griffin, practice alone 699 F.2d 1108 & n. normal unless "the trial record ed States (11th Cir.1983). Griffin, conclusively this court ex- is enti- In shows that the defendant footnote, plained, why procedurally in a it is when the record conclu- tled to no relief and (internal improper appellate quota- court to decide a sively contrary”) for an shows the omitted). underlying facts have not claim when the tion marks been found the district court: support proposition that it is within To its appellate If an court elects to consider the appeals province to resolve the court appeal study issue and the record on of fact in a case where the district court isshes it, an assertion of ineffective relation to evidentiary hearing failed to held an but find may appear totally facts, assistance without merit majority the cites several cases. light temptation The is them, however, of that record. majori- None of stands for go strong in instances to ahead and Shukri, such ty’s proposition. In United States v. against appellant on the decide the issue (7th Cir.2000), 207 F.3d 412 the Seventh Cir- doing presumption that so will reduce the disposed cuit of the defendant’s claims of Succumbing workload of the district court. ineffective assistance of counsel in the defen- (1) temptation, however adds unnec- appeal dant’s direct his convictions for from appellate essarily to the workload of conspiring possess possession of stolen fruitless, court; (2) ap- may be where the claims, property. which had not The been pellant would not have elected to court, (1) presented were that to the district under 28 the issue to the district court Garcia, States v. counsel failed to cite United 2255; (3) may deny appellant § U.S.C. an Cir.1990), (7th support 897 F.2d 1413 develop prop- opportunity to the issue on a suppress motion certain out- his in limine record; (4) encourages er future first-time prosecution of-court statements the intended appeal; presentations impor- and most having against to introduce as been made (5) tantly; everything undercuts the courts interest; (2) penal witness' counsel failed to against presentation ... have said its for trial, objection renew his to the statements at appeal. the first time on direct presumably apparent that the when it became Griffin, gener- 699 F.2d at 1108-09 n. 14. See against had not made statements States, ally Co. v. United 187 F.3d Power Gulf interest; (3) penal counsel failed witness’ sure, (11th Cir.1999) ("To be an prosecutor put object questions the appellate court the usual forum in Shukri, the defendant on cross examination. resolved....”). which factual issues ... are brief, at 418-19. In the defen- 207 F.3d his as district court error the court's dant cited occasions, may 5. There as in a case whose denial of the motion in limine. The Seventh documentary appropriate disposition turns on error, evidence, no much less an abuse of Circuit found tangible or other where the material discretion, in the district court’s denial of the clear and settled that a remand facts are so this, however, motion in limine or its admission of the state- fact-finding unnecessary; for trial; therefore, See, evidence at ments into e.g., is not such an occasion. Jackson v. Leonardo, (2d Cir.1998) (stat- attorney’s perfor- defendant’s claim that his 162 F.3d remand, constitutionally pat- defective was practice mance was ing that the usual is to ently "might necessary meritless. Id. at 419. same was remand not be in a that highly point; plausible expla- regarding the defendant’s third unusual case where no true exists”); attorney’s questions prosecutor actions Unit- asked defen- nation an drug involving transaction conclusion of appropriate. kilograms searching were two of cocaine. In Tor- on cross examination dant scene, $3,871on disposed appeals agent of the defen- Id. The court of res at the a DEA found assistance claims because person. dant’s ineffective Id. brief at 1168. In his conclusively record showed the trial court that, appeal, that he Torres claimed was denied given evi- because, if the defendant was even prior effective assistance of counsel proceeding dentiary hearing in a section 2255 trial, attorney sup- failed to move to (brought following the affirmance of his con- and, press money trial, agent had seized viction), possibly either establish could request missing failed to witness in- prong standard for ineffective of Strickland’s struction, so that the would understand Id. at 419. assistance. why a confidential informant had not been Fortson, States v. 194 F.3d In United called Id. at It defense witness. (6th 1999), appeal Cir. another direct that counsel's fell was obvious convictions, the Sixth Circuit defendant’s clearly range within the of what court challenge to his entertained the defendant’s attorney’s performance adequate performance, would consider In at trial. rejected Second Torres’ Circuit therefore Fortson, residеnt, defendant, Michigan ineffective assistance claim out of hand. gentlemen charged other with four Next, Calderon, Bonin v. 822- conspiring transport New cocaine from 1995), involving Cir. two 28 U.S.C. Michigan. York to Id. at 733. Fortson's co- (1994 1996) Supp. petitions § II & chal conspirators brought eight kilograms of co lenging sixteen murder convictions in two van; Michigan caine to rived, in a when ar (Los provides Angeles ’Orange), counties police, who had been monitor local absolutely support majority’s prop no co-conspirators, the activities of one of the Bonin, osition. the district court held a van, Paulino, spotted the and followed it and three-day evidentiary hearing and made com sedan, Fortson, Camry which a traveling driven prehensive findings of fact and conclusions of it in front of the van. Id. When disposing petitioner’s law in of the ineffective occupants appeared that of the van and the counsel claim. Id. at 823 assistance of Camry working together, police the stopped were the 1995) ("In separate published opinions, Cir. van, it, finding and searched the peti the district court denied both of Bonin's later, police ap Id. cocaine. Moments tions.”) Vasquez, F.Supp. (citing v. 807 Bonin proached Camry, parked which was in an (C.D.Cal.1992) Vasquez, and Bonin v. lot, Fortson, Paulino, adjacent and arrested (C.D.Cal.1992)). F.Supp. 957 United States v. trial, co-conspirator. and a Id. at 734. At his Montes-Mercado, 99-15282, WL No. that, though Fortson's defense even 15, 2000) (9th May (unpublished), Cir. crime, had been arrested at the scene of the peti proceeding in which the section 2255 acquit should him because all that tioner's ineffective assistance claim was that presence.” the evidence was "mere showed petitioner counsel should have advised that he course, jury, rejected Id. The his "mere plead guilty, could cence, but still maintain his inno presence” appeal, In defense. his brief on equally unhelpful majority. is to the challenging sufficiency addition to evidence, of the Putting question we should aside the whether alleged Fortson that his trial attor rely unpublished opinion on an from a sister performance constitutionally ney’s circuit, we note unlike the situation in deficient because he had not "introduced evi case, district court held an the instant demonstrating dence Paulino’s ties to the evidentiary hearing findings and made of fact Michigan.” state of Id. at 736. He did not rejecting petitioner’s claim. however, explain, evidence of Paulino’s how Supreme Finally, majority relies two Michigan ties to would have established his - cases, Flores-Ortega, Court Roe v. U.S. Circuit, presence” "mere defense. The Sixth -, 1029, (2000), 120 S.Ct. L.Ed.2d 985 concluding that the evidence was more than Wainwright, 477 and Darden v. U.S. convict, exception sufficient to made an to its (1986), 91 L.Ed.2d 144 rule that ineffective assistance of counsel proposition appropriate for a court that appeal claims are not to be heard on direct appeals findings fact in the to make and decided to address Fortson’s ineffective findings that absence of made the court conclu assistance claim because the record originally entertained the ineffective assis- sively demonstrated that the claim had no Roe, In the Court tance counsel claim. Id. merit. emphasized in- deficient Torres, United States one, quiry the determina- fact-intensive case, (2d Cir.1988), drug another requires ... take [to] tion of which "courts challenged a case in which the is likewise knew into account all the information counsel clearly actions of counsel were established in Roe, record, have known.” should appeals the trial so that the court of "Magistrate Judge's Because the find- it could decide ineffec- was confident that provide with suffi- ings Court] d[id] [the tive of counsel claim while review- assistance determine whether Ms. appeal. cient information to ing the conviction on direct defendant’s constitutionally inadequate accomplices Kops rendered as- Torres and two were arrested at dissent, so, however, I doing after canvass- Before deem it Judge Barkett’s relating per- necessary majority’s the evidence to Redden’s to comment on the formance, convincingly why quite shows strong “presumption” reliance on the petitioner prong has satisfied the first attorneys acting competently, defense are I agree Strickland’s test. with her dis- sense, Amendment Sixth when evidence, analysis of the but I sent’s dis- choices,8 strategic make and to consider can, issue agree dispositive and the time in which prepared frame Redden should, be decided this court in the first trial, petitioner’s case for a time frame the else, nothing judges instance. If that the majority opinion fails to mention. fairly split of this court are on whether the

historical facts demonstrate ineffective as- A. highlights necessity of counsel sistance remanding to the the issue district According majority, the Supreme court. Court and this court established cer- majority concludes that Redden “principles presumptions” relating tain provided effective assistance as a matter to ineffective assistance of counsel claims. of law.6 Because the district court made presumption One such is that counsel’s findings no fact perfor- historical on his strategic competent. choices are mance in sentencing phase post-conviction in which proceeding pe- majority, in order to hold titioner is claiming lawyer ren- petitioner failed to show that Redden’s assistance, however, dered ineffective deficient, performance was must view the “strategic presumption choice” has no le- light pe- evidence in the most favorable to words, gal effect. In other it does not dissent, titioner.7 In this I also consider operate presumption. aas light, lay and then out the explains facts a reasonable fact finder Federal Rule of Evidence 301 by preponderance presumption operates could find of the evi- how a in a case such dence. as the one before us: court, findings by 7. Absent of fact the district sistance,” 1040, id. at the Court vacated the position this court is in the same it would appeals court of decision and the remanded occupy reviewing summary judgment, in Darden, case. evidentiary hearing In the district court held an law, judgment judgment aas matter of or a fact; findings and made following entered a bench trial the without Darden, the proceeding, Court cites to the habeas findings of fact and conclusions of law re- 184, 77 U.S. at 106 S.Ct. at 4 52(a) (as quired by Fed.R.Civ.P. occurred in agree concludes that with "[w]e both Dis case). conducting the instant In such re- Appeals trict Court Court of views, evidence, we consider and the in- petitioner deprived was not of the effective yields, light ferences it most favorable assistance of counsel.” id. at 2474. 106 S.Ct. at hand, peti- to the nonmovant. In the case at is, purposes, tioner for our the nonmovant. sum, simply In I am at a loss as to how Although majority opinion does not indi- of the cases cited above could be considered assessing performance, cate in Redden’s supportive majority’s proposition of the that a light the court viewed evidence in the appeals court of should assume the district petitioner, most favorable to the I must as- fact-finding mag- court’s role in a case of this it sume that did.

nitude. majority 6.The draws this conclusion without majority opinion 8. The presumption cites this acknowledging import Supreme the full times, at least eleven ante at 3043 n. Taylor, Court’s recent decision in Williams v. 15, 3045-46, 23, 3049, 3053, n. 3048 n. — -, 1495, 1514-15, U.S. 15, ante, majority footnote (2000). Judge L.Ed.2d 389 As Barkett’s dis agree proper seems to with the definition of a explains, majority’s analysis sent of Red therefore, presumption; I do not understand "strategic forego any den's choice” to investi how it can continue to assert that we should gation petitioner’s background into the in presume effort to find squared defense counsel acted reason- cannot be holding ably. with the Court's in Williams. sum, proceedings “strategic In all civil actions and choice” presumption is provided presumption Act of Con- not a in otherwise the Rule.301/common rules, presumption these law gress simply sense. It is a short-hand way imposes party against on the whom it is saying petitioner has the burden of going directed the burden of forward proof on the issue of the constitutional pre- with evidence to rebut or meet the adequacy of his attorney’s performance.10 sumption, but does not shift to such B.

party proof the burden of the sense of nonpersuasion, the risk of which remains period during of time which Redden throughout upon party the trial on performed his service in the trial court— originally whom was cast. day from the petitioner’s undertook advisory See also Fed.R.Evid. 301 commit- representation to day recom- (“[W]hile giving tee’s note evidence of facts penalty mended the death relatively —was presumption rise to a shifts the burden of petitioner short. The retained Redden coming forward with evidence to rebut or (the early in January 1991 record does not presumption, meet the it does not shift the precise disclose the date of Redden’s em- persuasion burden of on the existence of ployment). Petitioner and fifteen others presumed per- facts. The burden of had been under indictment the North- suasion party remains on the to whom it is ern District of charge Alabama on a instance.”). ... allocated the first A conspiring marijuana, to traffic and the Rule 301 is the same presumption as a grand jury process of returning presumption at common law. Like its a ten-count superceding indictment antecedent, pre- common law a Rule 301 alleged continuing a massive criminal en- sumption is a device that the party aids terprise that spanned period of three proof establishing the burden of 1987-1990, years, and included the murder (Or, elements its claim. on the charge that led to the death sentence now case, presumption defendant’s side of the grand under consideration. The jury re- may aid in establishing the elements of an turned superceding indictment on Jan- defense.) affirmative A presumption is in- 9; uary appeared petitioner Redden party’s voked when a adversary possesses arraignment day. January next On (or evidence that is essential to the claim 24, the district court entered an order defense) is, practical affirmative as a fixing February 12 as the date. Six matter, unavailable to all but the adver- later, days January prosecutor sary. Redden, formally notified petitioner, and seeking that the Government would be the In giving petitioner’s adversary, the penalty death on the Government, murder count. On the “strategic benefit of the February the district court peti- choice” severed presumption, majority appar- the ently against tioner’s case from the cases the overlooks the fact that the Govern- (fifteen) defendants; other their trial ment needs no assistance in this case. would February The Government does not bear the burden commence on 12 as sched- uled, of establishing competence; petitioner’s begin Redden’s trial would on contrary, petitioner’s previous- the it is burden to March 12. Because Redden competence.9 ly establish Redden’s in In attending committed himself to the an- reason, principle "strategic For the same the that a 10. A final observation about the presumption "presumed” majority choice” the prov- defendant is invokes: innocent until even if the law were it to accord the status of guilty beyond en a reasonable doubt does not presumption, yield a Rule 301 it would not express presumption in the Rule 301/com- competently inference that Redden acted pre- mon law sense. That the defendant is making strategic the choice at An in- issue. merely way saying sumed innocent is probative presumption ference has value. A prosecution proof the has the burden of simply going does not. It the burden of shifts guilt. the issue of the defendant’s evidence; rebutted, forward with the once it disappears from the scene. sentencing phase of the trial. Redden the International Soci- nual convention dis- prefer that he would that the in London first stated Barristers ety of court March, place court to cussion take chambers. The he moved the set week and declared a half-hour recess. granted agreed, The court trial date. another trial for petitioner’s scheduled request and p.m., At 2:30 the court and counsel met March 19. presence of a court in chambers reporter who took down and transcribed I conclude exclud- Recapitulating, proceeding. began attend- the entire The court spend would ing the time Redden convention, by outlining from the the discussion ing the' Barristers’ phase begin him of the trial. That would phase notified that the day prosecutor instructing jury the court on its penalty the death would seek Government (and sentencing proceedings role and how the day petitioner’s until the trial would did) Thereafter, pros- days, weekends would be conducted. begin, forty he had included, open- and the defense would make prepare in which to for trial. ecution statements; time, paralegal, he or his Su- Gоvernment During both, Brotherton, aggravating circum- present attended the evidence of zanne stances; would be afforded February petitioner’s 12 trial co-defen- defendant dants, opportunity put inter- on evidence of miti- days, which lasted six witnesses; circumstances; nearly sixty-seven gating some the Government viewed initially, present and the defendant would then- of the witnesses were interviewed re-interviewed, during petitioner’s closing arguments; and the court would or were place charge jury. Regarding mitigating took ev- trial. Most of the interviews Piedmont, Alabama, idence, the court told Redden that or around Calhoun defendant; County, Birming- open” a two hour drive from “world is he has ham, right law firm had its to introduce evidence that where Redden’s might mitigate the sentence. office. prosecutor The court guilt phase petitioner’s be- asked hoyr take

gan long as scheduled on March 1991. The Redden it would forty prosecutor witnesses. their evidence. The stated that Government called over later, days on March the Govern- the Government would stand on the record Nine (in guilt guilt phase ment and offer fur- nothing rested. his defense witnesses, phase), petitioner presentation called twelve ther. Redden said that his ... long not take the stand himself.11 The the defense “won’t be less than a closing place day.” took He that the parties’ arguments stated defense would April charged jury rely statutory mitigating 1. The court on two circum- a.m., stances, which the following morning, and 10:25 Government did not (1) petitioner At 1:50 were jury p.m., dispute. retired deliberate. These record,” after three and a half hours of delibera- had no “substantial criminal (2) tion, verdict; Jarrell, Ray reached found Charles who was as petitioner guilty responsible petitioner on the nine counts of the for Shuler’s death plead guilty marijuana indictment which he had been named as and had con- spiracy charge, receiving a defendant. The court then asked the poll jury; poll clerk to the indicated a death sentence. Redden was non-commit- verdict, witnesses, if jury concerning any, unanimous and the was dis- tal he call, day, although missed until 9:00 a.m. the next he did ask the court in limine as to the sentencing phase ruling scope which time the of the begin. prosecutor’s peti- trial of the count would cross-examination of murder courtroom, jurors if Once the had left the tioner’s wife he called her as witness. Finally, it the court and counsel court informed counsel wished to discussed give what intended to do in the court planned discuss the instructions the 11. Petitioner also called one witness in surre- buttal. performance by failing The record seek jury and the verdict form. long jury how the court-coun- evidence and comes

does not indicate (1) Although lasted. testimony sel chambers conference from four sources: the court re- wife, clerk’s docket sheet and petitioner’s Redden and Deborah transcript reveal that the confer- porter’s Chandler, during adduced the section 2255 neither reveal began p.m., ence at 2:30 evidentiary hearing concerning Redden’s transcript when it ended. The consists efforts to obtain favorable character wit- hence, drawing purely twenty-nine pages; (2) nesses; twenty- of the I estimate that the confer- experience, on seven witnesses called to the stand twenty-five thirty ence lasted minutes. during proceeding habeas counsel character expound petitioner’s and to mind, foregoing time frames in With petitioner’s specific relate instances I turn to the facts a reasonable fact finder (3) others; charity pre-trial toward could find from the evidence when that above; I and trial time tables have set out light in the most evidence is considered (4) opening Redden’s statement and petitioner. Stated another favorable closing jury made to at the argument evidence, way, I review what when sentencing phase the trial. If evi- tells Red- light, considered us about light dence is most favorable viewed mitigating evidence investigation den’s means that re- petitioner he petitioner’s to limit case to his decision —which ceives the of the doubt on all credi- undisputed statutory mitigating the two benefit fact bility circumstances cited above and the testimo- and fact issues'—a reasonable wife, Chandler, little, ny petitioner’s justified Deborah giving finder would be mother, Irene and his Chandler. any, say, credence to what Redden had to exception with the of the statements that

II. say claim. this be- support petitioner’s testimony, cause Redden’s as indicated bearing petitioner’s The evidence margin,12 is riddled with “I don’t claim that Redden rendered ineffective following passages 12. are from Redden’s don’t know whether it would have been or testimony during proceed- the section 2255 not.” (cid:127) ing: trying petitioner When to recall when arrested, believe, said "I had [he] Redden (cid:127) response when he entered a notice of probably Septem- been arrested around appearance in the Redden stated ber, I’m not sure "Well, I don't —I don’t recollec- (cid:127) 848(q) if he knew that section When asked tion of that act. I’m sure I did it.” Anti-Drug provided Act (cid:127) resources of the Responding question to a about when he (whom investigator he chose not to for an notice Government’s intent received hire), "I’m not sure wheth- Redden stated said, penalty, Redden to seek the death “I not, that at the time or but I er I knew subject. I do not recall the recall that figured was retained counsel and I knew I precise date.” investigator] my (cid:127) [hiring would be trial, Regarding severance of Chandler’s obligation.” he stated "I don’t know what Govern- (cid:127) When asked whether remembered position was. I don’t recall what it ment’s asking to listen a second time to was.” (cid:127) tape recording petitioner in which said sought why he a one-week When asked somebody, kill Redden said he’d have to replied "It was that I Redden continuance. "I don’t recall.” prior being retained in this case (cid:127) sentencing hearing When asked if myself by by money committed word and jury’s day after the verdict set for the of the Interna- to attend the Convention (finding petitioner guilty murder and Society Barristers that was to be tional announced, offenses) March, eight Red- other probably I’ve held the first week in day. it for the next I den said "Set forgotten.” (cid:127) the time.” thought requesting don’t—I don’t know When asked if he about (cid:127) the verdict sentencing When asked what he did after a continuance before the find character phase, "I don’t think I did.” came in to some additional Redden stated (cid:127) witnesses, replied "I know that I would have Redden When asked whether court continuance, request of Chandler granted [Deborah] said "I made the Redden recall,” guilt the conclusion of the know,” “I have verdict at or don’t or “I don’t recollection,” of the trial.14 forgotten.” phase “I have or any weight due testimony its Giving Redden’s n — its verdict jury After the returned evidence, considering and the rest guilt phase at the conclusion of fol- could find the reasonable fact finder determined as a mat- Redden lowing facts: strategy mitigat- ter of sound trial — necessary. evidence would be mitigating Redden did not look Having investigation, made no other the matter serious give even evidence or petitioner’s background, into jury inquiry, returned its until after the thought members, who family came with—there was a minister I and ‍​​​​​‌‌‌​​​‌‌‌​‌‌​‌​​‌​​‌​‌‌‌​‌​​‌​‌‌‌​‌​‌‌​​​‌‌‍whether other know, that I made the decision not to use we had earlier came and whether don’t conversations, the reason that he had been out of the I don’t had such know.” time, said, period I community for a and as petitioner’s "All Then habeas know, you forgotten, the con- re- recall—I’ve right. You don’t recall?” Redden thing I tact was not a current and felt that sponded, "No.” (cid:127) number of wit- response question what he in the absence of some In to a about thing April be a wise on nesses that that would not told Deborah Chandler about they put to do.” the kind of evidence needed to (cid:127) day, if he knew which of the 67 mitigation Redden said "I When asked the next paralegal, his Broth- I told her or what she witnesses he don’t recall what and/or erton, prior might erton, interviewed were interviewed [Broth- have been told Suzanne trial, during said "No. paralegal], except that it to trial or Redden his would course, Of there was some that would things that would demonstrate humani- categories.” things have been in both ty, compassion, of that sort.” (cid:127) any family mem- When asked if he asked states, majority 13. The ante at nn. & to find bers besides Deborah Chandler "accepting that it words [Redden’s] is not witnesses, replied mitigation Redden views, represent heartfelt is not [it] "That I'm not sure of.” (cid:127) crediting testimony absolutely as true” or Regarding prepared when he Deborah specific reviewing quality lawyer’s "the testify sentencing, Irene Chandler judgment process that underlie his conduct probably Redden said "We talked some trial”; rather, majority accepts Redden’s afternoon, sure, probаbly I'm not "illustrating the kinds of as morning.” post-conviction When thoughts lawyer in the circumstances some asking specific, counsel tried to be more reasonably could—we have had.” it would have been after —sometime conclude— "[s]o determining seems to me that in whether a It you talked her?” after 2:30 before Red- provided attorney defense ineffective assis- replied "It been. I don’t den did, counsel, attorney tance of what the recall now.” it, why important. majority (cid:127) he did asking the When asked if he remembered did, disregarding seems to be what Redden bring petitioner court to in at 8:00 a.m. on instead, it; why imagining he did what a day sentencing proceeding was to hypothetical lawyer would have done under hap- begin, Redden said "I think that am the circumstances. unfamiliar pened. I don’t remember it.” novel, (cid:127) quite approach, such an which to me is response question if he knew to a about the resolution of ineffective assistance what Chandler’s and Irene Chan- Deborah claims. questions dler’s answers be to the jury, ask them before the Red- he would 14. All of the 27 character witnesses who testi- den said "I don’t think so.” (cid:127) petitioner's during hearing ineffec- When asked if he knew that the fied hour, hearing claim stated that neither Red- lasted less than an Redden tive assistance anyone acting den nor in his behalf contacted said "I don’t know.” (cid:127) testifying petition- prosecutor them at about When the asked Redden if he time sentencing phase many at the of the trial. knew how witnesses he talked er's behalf to. "No, except para- All of them also stated that would have [his Redden said she testify legal, of a been available to and would have done Brotherton] has advised me that looked as if we had was 67.” so if called. Deborah Chandler testified number (cid:127) why subject of prosecutor he did the first time Redden mentioned the When asked mitigation after the re- McCoy as a evidence was not call Reverend witness, April "[t]hey verdict on the afternoon of character Redden said turned its however, asking might her he had no idea of sort of who be available to mitigating testify explaining persons that be or the kinds of evidence Moreover, available.15 she should contact. Redden — visibly knew that she was shaken and delegated Redden Deborah distraught jury’s over verdict and finding Chandler the task witnesses no carry condition out the portray petitioner’s who could character task he had He light. assigned favorable did so without her.16 opening jury In his statement at the the murder of Marlin Shuler. Those two trial, Well, phase things. mitigates. Redden what else described Well, thing, mitigating for one he would of his evidence as mother and of his wife was not here for a follows: tear-jerking purpose. It was here to show Mitigating may circumstances include that there here life that has had a any mitigating of those circumstances that it, stability quality had some that has to it by may are identified statute include apparent you and I think that when else, anything any also other circumstance ladies, looked at those two contrasted to the any juror mitiga- that wants to consider people character or nature of some of the by mitigation, simply tion. And we mean who testified in case and it this stands out tending you you as to indicate in stark the fact contrast and that here is a penalty. should not recommend a death family stability, that had tremendous here is statutory [Ajmong mitigating ... fac- a man who not to have lived around with identify you tors that the Court will are person, person this and the other. very important two at least that are in this children, got they He’s three are all case. apparently wife. Here who is a man has One is—and in the statute this is for a some skill of his hands who has worked in jury to consider—that the defendant on trial house, building parents’ his house and his no, says, has as the statute "substantial they’ve his brother’s houses and worked expect criminal record.” And we that to be springs with him and off the 80-acre very clearly hearing, demonstrated in this father, had farm his father with his that that is true of David Ronald Chandler. sawmill, way They they back. built cut Also, person persons that another who trees, lumber, they they made collected Shuler, killing participated in the Marlin rocks, they built houses and lives demon- found, receiving which has been is not strating purpose opposed lives with some capital pen- is not undertaken to receive the to life mitigat- worthless. So that that is a alty. already I think that's been demon- you factor that I think havе certain- strated in this evidence case that that ly just right obligation but the certainly is true with reference to the man consider. Shuler, Ray that killed Marlin Charles Jar- A reasonable fact finder could find from these rell, Sr. But it will be demonstrated conclu- portions opening of Redden’s statement and sively you again course of this closing argument thought Redden hearing. necessary would Then, closing argument in his at the sentenc- spare petitioner's was to life. ing phase, mitiga- Redden that the contended spoke 16. After Redden to Deborah Chandler presented evidence he tion showed that a testify about the need for witnesses to inappropriate of death sentence petitioner, she left the courthouse with mem- Specifically, argued Chandler's crime. (all that, family bers of her some friends Piedmont) Now, and drove to Piedmont. Someone argue certainly we we because, words, else drove the car in her she argue very do two there are clear miti- having difficulty was "numb” and was func- gating circumstances in this case. One is tioning. Foremost in her mind was what she the absence of substantial criminal rec- children, ord, would tell her three the oldest of says, "mitigating as the statute fac- sixteen, day's which was about the events. six, tors.” Number defendant did not significant prior trip have a criminal two record. to Piedmont took and a half stipulation they And that which is in evidence is three hours had to because detour to off; thus, proof drop people without contradiction that that is the some of the ar- p.m. case. rived home somewhere between 4:45 p.m. Family Another is that another defendant or de- and 5:15 members concerned equally culpable fendants will about Smith, crime Deborah’s condition summoned Rita punished by go not be death. You can fellow member of Piedmont Church God, all, punished stay further than not be Several her. well-wish- stayed prayed through- will not even be under an ers with Deborah tried accusation — notion, majority, by the expressed circum- Notwithstanding these ex- stances, consider Redden did wit- not call character that Redden did to the district predicament his plaining those found habeas nesses like He a continuance. requesting and court what “misgivings” about he had because following during so could have done bring to out might be able prosecutor the the court the chambers conference cross-examination, 3051, has no ante the or before April afternoon of on the First, since in the record.18 foundation began trial sentencing phase of the day.17 next 9:00 a.m. the church, afternoon, fifty people or so after point during eve- night. At some out the house for gathered her at Irene Chandler’s ning, reminded Deborah's sister-in-law group, get somebody meeting to counsel. Of this "they supposed to with habeas were (he all, forty fifty, Rita Smith came to evidentia- up nearly tomorrow.” stand for Ronnie hearing McCoy, had been thought ry hearing who in the district court. After of Reverend witnesses, of God from pastor testimony Piedmont Church these enough; McCoy, who lived in Pied- that it had heard 1975 to district court stated mont, testify, came to remaining would said he of the that the it held mitigation purpose. day Birmingham simply the next be cumula- witnesses would April 8:00 morning between unnecessary. On the therefore would be tive and a.m., "few Redden met for a a.m. and 9:00 Chandler, "misgivings” majority con- petitioner, Deborah draws its minutes” with 18. The Chandler, McCoy. exchange At following and Reverend that took Irene clusion from the a.m., sentencing phase prosecutor of the place Redden and the 9:00 between evidentiary hearing petitioner’s Deborah and Irene ineffec- began. Redden called stand, testified as indicated tive assistance claim: dissenting opinion. Judge Barkett’s Q: not, aware, you were You're also conference, after the During by calling the chambers character witnesses for Mr. (hem open opened up you [was] Redden that "the world court told would have Chandler indeed, him,” government, should could Redden to cross-examination have— done the court that he had you have—informed not? Yes, phase nothing prepare penalty for the A: sir. foremost, Q: First, client’s life aspects of that that the case. Were there some though helpful Redden had satis- might was at stake. Even you believed not have provide obligation to your fied his constitutional case? during representation competent Certainly. petitioner A. Q: fact, guilt phasе Redden had an you or had some informa- knew obligation petitioner's cast charac- ethical the communi- that some individuals in tion light possible drug at the ter in the best to be a ty considered Ronald Chandler Second, experi- dealer, highly phase you the trial. not? attorney, Redden defense enced criminal A: Yes. that, Q: jury recommended a death knew if the that there were And some information petitioner was sentenced to community sentence and that were afraid of people in the (1) petitioner-would seek relief from death him? § 28 U.S.C. 2255 on sentence under of that. I had heard A: Not as much ground many peo- denied him effective that Redden had know how but that was—I don’t trial, sentencing phase say opposed ple assistance that as would come (2) before be back in court Redden would the other. Q: interrogated certainly un- judge and available the same district You knew that was why he did not seek continu- government der oath as to or could be available to mitigation prepare the sort of -government ance in order to as cross-examination mate- able petitioner’s habeas counsel was rial? Well, span days. of a few to uncover in I felt that the law enforcement A: Piedmont, counsel, part community receiving two weeks after Habeas (he him, antagonistic county, hearing was hostile evidentiary the district notice of they certainly could have him. And that petitioner's claim of inef- hold on court would counsel, that sort. produced witnesses of met with Debo- fective assistance of Chandler, exchange, mitiga- Immediately Redden clar- after explained the role of a rah witness, not what the his real concern was ified that and asked her to assemble tion prosecutor might bring out on cross-examina- people have been avail- group of who would (he tion, finding petitioner jury, by during but that the testify petitioner’s behalf able-to against already Sunday guilty, set its mind sentencing phase of the trial. On a fact, in closing argument, had no idea as to who Redden told

Redden testify petitioner, he could not jury: able to particu- had about what a misgivings have I finding guilt. You’ve made can’t say on cross-examina-

lar witness argue against already that because it’s Second, other than his belief that the tion. made, say you but I sincerity all community” Piedmont “law enforcement mistake, that it would be a tremendous petitioner and that was “hostile” toward my judgment, you to return a thought petitioner some folks that recommendation; is, a verdict that dealer, nothing say Redden had on drug impose would on this court the obli- subject prosecutor might what the gation to cause man to put be develop have been able to on cross.19 considering every death circumstance of in the lacking Also foundation record this case. is the notion that Redden decided to base doubt,” relying “lingering Instead of on sentencing phase strategy “linger- jury give due urged weight Redden ing mitigating doubt” rather than evidence petitioner fact that had no substan- (save stipulations, the two and the testimo- record, tial criminal the fact that Charles Irene). I ny say of Deborah and this for Ray would not receiving Jarrell First, two reasons. when examined at the penalty, death and the of Debo- evidentiary hearing petitioner’s ineffec- rah and Regarding Irene Chandler. claim, tive assistance of counsel Redden testimony, women’s he said that he had not say, imply, pursued did not or even that he testimony ... presented “the for a tear- “lingering strategy.20 doubt” From all jerking purpose.” presented It was “to appearances, Redden had little idea as to show that a life there was here that has say jury what he would when he it, stability had that has had some opening rose to make his statement. Sec- words, ond, In quality to it.” other a reason- transcripts opening of Redden’s closing argument copies statement and able fact finder could find that Redden — which are opinion thought mitigating attached to this not himself circumstances —do existed, reflect a doubt” In “lingering strategy. jury which the should have consid- petitioner nothing conjure question such that would convince it unable to have been not to recommend death: prosecutor put mitigation could have to a your question, as, And I felt so to answer you "Have witness—such heard that the questionable it would be at least community Piedmont law enforcement is hos- impact whether a sufficient of character petitioner?” tile toward would have —that type testimony could fixed overcome a Furthermore, objection. survived a defense evidence, opinion based on the other prosecutor, neither Redden nor the who de- opinion, change had such a fixed and could evidentiary fended Redden's conduct at the it from life to death. Or death to life. hearing, any testimony identified that could have been admitted under the Federal Rules conceded, prosecutor petitioner 19. As the respect of Evidence. The same is true with record; thus, no "substantial” criminal community the belief of some in prosecutor pe- could not have cross-examined petitioner trafficking drugs. mitigation petition- titioner’s about witnesses past er's crimes. As far as we can tell from concludes, majority 20. The as a record, fac- Redden had no idea as to the matter, "linger- tual that Redden delivered witness(es) identity any prosecutor argument doubt” as a matter of trial strat- could have called to the stand to rebut the goes egy, hold that ... on to "we petitioner’s sort of habeas approve finding a district court's other- develop. Nor did the were able to words, wise.” Ante at n. 26. In other Red- prosecutor identity reveal the of such wit- argument lingering provides a den's doubt ness(es). As for that the Redden's belief Pied- lawyers bench mark for the and courts of this community mont law enforcement "hos- cases; argument appear- circuit future petitioner, tile” toward neither Redden nor hand-in-glove argu- ing to with Redden's prosecutor explained fit how this hos- considered, law, a matter of tility put mitigation ment will be would have been Moreover, "lingering argument! witnesses on cross-examination. to be a doubt” penal- the death if a recommends the sentence to deliberating on ered change no discretion to has ty, Court

recommend. penal- another sentence or to make III. fac- statutory mitigating among the ty, but made no district court summary, are identify you the Court will tors that perfor- Redden’s regarding fact findings of in this very important that are two at least trial; sentencing phase of mance case. ineffec- rather, petitioner’s disposed for a this is the statute is—and One by concluding claim tive assistance on the defendant jury to consider—that even constitu- performance, Redden’s no, says, the statute “substan- has as no petitioner inadequate, caused tionally that expect And we criminal record”. tial Judge and majority What the prejudice. clearly in this very demonstrated to be step have done is to in Barkett her dissent Ronald that is true of David hearing, that shoes, find the court’s into the district Chandler. petitioner’s underpinning facts historical Also, person persons or that another fell short performance claim that Redden’s killing in of Marlin minima, participated who decide the and constitutional found, Shuler, not re- has been is aspect peti- which performance merits of claim. I assistance undertaken to receive ceiving ineffective and is not tioner’s ap- finding fact at the already such would eschew I think that’s capital penalty. Rather, remand the I would level. pellate in by the evidence demonstrated court, whose habeas case to district true with refer- certainly that case that underpinning facts to find the role is Shuler, that killed Marlin to the man ence claims, to en- with instructions petitioner’s Jarrell, Ray But it will be Sr. Charles conclusions of law of fact and findings ter in conclusively you again demonstrated Redden’s concerning hearing. of this the course trial. phase petitioner’s you after had commenced Yesterday an inter- you manifested your deliberations Statement Opening Exhibit 45 of in what was identified as est Court, gentlemen. ladies Please the tape that that government and was put course, or there has been the issue Of you were played to be you asked these of whether question in issue the in hands to read your allowed to exist evidence suffi- aggravating factors playing tape docu- along with beyond a reasonable cient to convince Exhibit been identified as ment which had has The Court that do exist. doubt 45-A, not in evidence but as assist you again and will tell you I believe told you. factors that only aggravating that are those that have be considered of that tape could of that importance that will be you been identified hearing is purposes of this document for sure, closing in you, I’m identified to will establish sаy hearing I that this this. instructions. again I think it’s some- without a doubt— already been estab- already that has thing may include circumstances

Mitigating lished, the death of Marlin Shuler that circumstances that any of those 8, 1990, may May include that state- by statute and on are identified occurred else, any other circumstance re- anything your message also foreman’s ment that mitiga- juror wants to consider writing which was ferred to to the Court mean by mitigation, simply we tion. And you instructed and as the Court you you tending to indicate as knowledge what numbered ex- without penalty. a death should not recommend about, the state- talking were you hibit you had an interest ment which course, has the Court stated Of And message. in the foreman’s capsulated is used here “recommend” you, word manifested you Exhibit 45. And that was respect, In this more than that. but it’s rell, Sr., $500.00, him, kill says, got him, in a kill an interest statement kill substance, him, got somebody keep keep I’ve to kill you on and until per- to that effect. words suade that man do that and wait minute, evidence, if I you’ll misstate The evidence has reflected and will re- hope you’ll me I correct correct Mr. again that flect that statement Ray Davis because Charles Jarrell testi- until that it July was made made fied, recall, as I an occasion three almost three months after the death of 8th, May or four months before David Shuler. It Marlin could have been Ronald made a Chandler had statement made reference to Marlin Shuler un- said, substance, him which “This man maker of the was un- less the statement trouble, I’ll going give you cause $500.00 of the death of Marlin Shuler. But aware kill say him.” And what did he about contrary by your you finding found to that said, “I the statement. He already. thought he was you you And ask will ask —-we fact; joking, always wall off the like that.” And significance to consider is, time, the only that Marlin that that’s already Shuler time up ever at that time. was mentioned until the day deceased 8th May of 1990 said when he he had a conver- will be There other evidence that we will with sation David Ronald Chandler which briefly offer and at the conclusion of this he stated two in ways different his prior hearing and of the further instructions of testimony. money One time no was men- urge very the we strongly Court and feel tioned, him. according to The other time you that will not a death recommend sen- Now, I’ve got said still the $500.00. what under all tence the circumstances of this that any does show with reference to plan- you case which have heard and can take ning, scheming, deliberation David into consideration to extent that the If Ronald Chandler. that conversation you you Court has instructed and what will all, place all, place took if it took took hear this hearing. time, place long lapse after a after one conversation that man said Closing Argument was unim- Now, my if it portant place, mind. took Court, Please that for think it was a was thing precipitated. that that that purposes you’re part here of Mr. testimony His any was not that nine mil- argument goes Davis’ the parame- outside pistol given limeter for had been to him what determining ters of is relevant killing Shuler, purpose Marlin that penalty you what recommend David said, truck, had pistol. he that He his respond part Ronald Chandler. But I’ll thought, testimony, that he I recall his as anyway. of it He great talked David going that Ronald Chandler Texas, preparation, he talked about he it Ronald pick up. David Chandler was many things, talked about all of which he going pick up morning it that he when Chandler, now attributes to David Ronald thirty-eight came over and that the he had which evidence did not attribute weapon. was his own Ronald He sort David Chandler. of for- gets Paul Watson when talks about he who Well, then on. go prompted let’s What person a long period was the who over Jarrell, Ray Sr. in his Charles actions. planner, time was contact with much anything How was said Moncrief, Treacy, was the contact all day by him on that David Ronald Chandler this, forgets and I to it respond him, impel motivate him to do what he did one, say, number I think it’s outside the date, twenty-three after beers on that but, scope of what is relevant here number twenty-three beers before he shot two, forgets it what evidence in this recall, testimony, man. And as I his case was. well, up thirty-eight shot all of the don’t —I were left in says you many And then he know how rounds David millimeter, says Ray Ronald Chandler nine even know to Charles Jar- didn’t whether Now, certainly argue he him. we would and we any had or not. And shot he very do are two clear And, course, argue there when Davis states that Mr. know, this case. One well, mitigating circumstances you unequivocally he stated absence of substantial criminal by what he again man can be tested this record, says, “mitigating statute occasions; unequivocally on other said six, Number the defendant did factors”. is, one, that he didn’t shoot number rec- significant prior not have a criminal two, him, man; shot it was number he stipulation ord. And that which is evi- gets into the and then he accident proof dence is without contradiction made routine of the statements the case. that is him profitable to make when became them. another Another is that defendant crime equally culpable defendants Well, undisput- that is thing one here’s punished by go will death. can not be You family’s malice ed. There was Jarrell’s all, punished further than not be How is that dem- toward Marlin Shuler. will not even be tried under an accusation question fights about the onstrated. No murder of Those Marlin Shuler. Jr., sons, Ray, Billy Joe both Charles Well, things. two what else mitigates. of, Because num- Why. had with Shuler. Well, Shuler, thing, for one of his one, ber his abuse of Donna was not mother of his wife here for sister, her, Ray’s Charles half abuse of purpose. It tear-jerking was here to show family generally abuse of the abuse that there was life here that has had mother, Johnson, Donna’s Mrs. it, stability to that has had to quality some whom had an abhorrious name. he it think apparent you and I that is when Ray plenty Charles Jarrell had of mal- ladies, at those two looked contrasted ice, animosity, hostility toward Marlin Shu- character nature of some of the by not engendered ler David Ronald Chan- people who testified in this and it case dler. David Ronald didn’t have Chandler in stands out stark contrast and the fact thing Ray to do with Charles Jarrell family here is a that had that tremendous putting pistol nose of this man and stability, here is a man who to have not pulling trigger intending to kill him with person, person lived around this that in hap- and November 1989. So what children, got and the other. He’s three well, pened. He said the Lord not must they by are all his wife. Here is a man have night. intended for him to die that who skill of apparently has some his hands prosecutors say you And the would building who in has worked his house with, yeah, but that was all over that was house, his parents’ houses brother’s with, just over and done that was one him they’ve worked with and this well, moment that argument called springs farm fa- off 80-acre that his in looking him the face at that time. father, way They ther had with back. That’s thing shooting a different him sawmill, trees, they they built a cut made in the back of the head or wherever he rocks, lumber, they collected built say shot on a different I occasion. But and lives with demonstrating houses lives you can’t attribute to David Ronald Chan- purpose opposed some to life worthless. compelling dler the force of what that man So that is a I factor that on that occasion to the extent that a you certainly just think that have recommendation, fact, in a sentence to right obligation but the consider. justified. death be case, course, This is extreme- that’s I submit all you that under the cir- ly made a important. finding You’ve cumstance this case it would be cruel guilt. argue against I can’t that because punishment, our unusual which consti- made, already say it’s I in all you says tution the subject even should not be sincerity that it be a would tremendous punishment country. mistake, in this my judgment, you to return is, recommendation; prejudice prong verdict found that was not satisfied, it impose obligation court the did not perfor- would this address the Tjoflat put prong. Judge correctly to cause this man to death mance As considering every explains, judge circumstance of this the district who heard the You to be should fact going findings case. are told that make the unanimous, such recommendation must be resolve material facts which are on, signed I signed dispute. agree Judge Tjoflat it has to be case, you. say of each I to in an judgment appropriate one And this resolution of you that there has a lot of innuen- cannot prong be made well, now, says, guy do—where he this fact findings without such the district her, McFry is not Burrows Accordingly, respectfully named who court. I dissent. say you who is here —I there BIRCH, Circuit Judge, dissenting: justify no evidence this case any speculation on someone’s part join Judge I comprehensive, Barkett’s hey, may these and he people be dead persuasive, and record-relevant dissent. have it. something to do with continuing Given the current and concerns that, you If will com- you indulge hence, and, reliability about the the viabili- mitted, in my judgment, aggrievous death ty penalty, it is critical for the wrong as far as the defendant con- attorney set a perfor- courts to standard of cerned. public’s mance which merits the confi- majority places dence. this certainly think is the the inclination acceptable attorney level of assistance law safeguards of our and the that even undermining so low as to risk the public’s wrap this statute attempts around justice system. confidence criminal and this or any case defendant defendant opinion may The result tobe make charged so that the recommendation of a David Ronald Chandler first federal penalty death is not considered to be the prisoner government executed juror, certainly act of cir- normal under years.1 States in 37 United cumstances of and particularly this case where, here, prior as no record. And then person Chandler is the first to be sanc- the man who after twenty-three did it the penalty tioned with death as enacted murder, prosecuted beers even for that in by Congress Anti-Drug 1988 under the has been indicted that will dis- be 848(e) 1988, §§ Act of 21 Abuse U.S.C. et missed, that’s the in evi- stipulation that’s Therefore, it seq. represents unique op- we to the you dence. So ask consider portunity pre- for the courts to federal you’ve relevant and when done evidence minimum requirements scribe the for the so, we feel that will return you a recom- taking Government’s life. Defense mendation to the court that there be no effort, penalty entire phase counsel’s penalty imposed death on David Ronald minute that he Deborah the asked Chan- Chandler. mitigation dler find until the to witnesses concluded, arguments consisted of less you very

Thank much. we, than 24 hours. Before as a civilized ANDERSON, death, Judge, dissenting: society, condemn a man to we Chief expect and more of an require should ad- agree I with Barkett Judge that Chan- vocate. prejudice prong dler has satisfied the 668, I Washington, Strickland v. 466 For all the reasons that set forth in U.S. 2052, (1984). case, I in opinion 104 80 L.Ed.2d 674 the this see Chandler panel S.Ct. States, agree Judge Tjoflat with v. 193 1297 Cir. perfor- the United 1999), prong reh’g granted the en and opinion mance should remanded to banc vacated, 3, 1999, continue, court. Dec. I district Because the district court as Greenhouse, 1999, 22, (noting 1963). 1. See Linda In Test U.S. June at A22 that last federal Newof Times, Law, Upheld, Death Sentence is execution occurred in N.Y. record,1 the in it is in clear conflict with then, to be convinced that record the conclusion Redden that which belies compels case the conclusion this or any investigation made received ineffective assistance conducted Chandler respect in during phase, viola- reasoned tactical decisions penalty guarantees trial. penalty phase the Sixth Amendment Chandler’s tion of in v. Washington, forth set Strickland devotes much of Although majority L.Ed.2d U.S. to facts relevant Redden’s opinion its (1984). The Court’s recent Supreme and civic and qualifications professional — Taylor, in v. U.S. Williams decision competent rep- bar as well as his activities -, 120 S.Ct. L.Ed.2d guilt these facts phase, resentation in the (2000), my only strengthens conviction to do with the issue raised nothing death sen- we should vacate Chandler’s issue, majority this As to that case. re-sentencing. and remand for tence Red- glosses over record evidence lack complete preparation den’s BARKETT, Judge, dissenting, Circuit penalty phase. crucial More- effort BIRCH, Judge, joins: which Circuit over, remanding than case rather a law case is whether The issue in the court who is best judge, district competently performed has yer who testimony, give him position to assess trial, of a but does guilt phase capital first whether opportunity decide evidence, mitigating nothing investigate constitutionally performance Redden’s constitutionally rep provided effective has adequate, arrogates this task majority sentencing phase. resentation and, speculation, wrong- based on itself v. clear Williams Supreme Court made sixth fully holds that Chandler’s amend- — U.S. -, 1495, 146 Taylor, to counsel was not violated and right ment (2000), on April decided L.Ed.2d constitutionally performance Redden’s 2000, that he has not. adequate.2 majority’s opinion the extent that the To I. at the sentenc- Redden’s lawyer has no defense suggests constitutionally ing phase was ineffective. independent of his preparation obligation, dispute A. does that he Redden conduct guilt phase, еven investigate availability failed into investigation minimal the exis- most mitigating evidence. in preparation tence of Supreme Taylor, Williams phase capital it is penalty requiring Court found ineffectiveness specific dic- contrary to misstates counsel “did hearing new where Supreme as well as this tates of the Court prepare penalty] for begin [the precedent. To the extent Circuit’s phase proceeding until week be- L. majority’s suggests that opinion fore 120 at 1514. In this Redden, the trial.” attorney, con- Drew Chandler’s remiss, failing counsel was even more investigation into the ducted reasonable penalty phase until the evidence, to think about availability or that mitigating hearing.3 night before tactical choice not to he made reasonable evidence, guilt-innocence proceeding ended 2:30 investigate present mitigating assertion, guidance be with the Notwithstanding majority's that cannot reconciled 1. 41, disagreements pointed supra provided Many, note that the out in Strickland. are about and not about factual case the law infra, totally inapplicable facts of are matters, major- with I in fact do take issue this case. reading well inter- ity's of the record as as its pretation the law. prepare 3.When asked what he did to admitted, say sentencing, "I would Redden format dissent is in a different than the 2. This mean, explicitly. I basically anything majority's "principles presumptions.” 12 and try preparing do was to what I was principles those while some of I note was not defend the case and there volun- presumptions accurate statements of are among peo- teered at that —in of that law, extrapolations dicta others are

1345 2, 1991, prepare mitigation, afternoon of and the must our re- April on the cases counsel, least, phase begin quire very at 9:00 the at the penalty was set to in- afternoon, morning. next That Redden form defendant the defendant’s phase “prepared” penalty by importance for the ask- relatives about the nature and Chandler, Deborah character in a ing capital defendant’s evidence sentenc- wife, trial,5 ing to “find” some character witnesses to ask them for names of poten- witnesses,6 up for the next morning.4 up “stand Ronnie” tial and then follow on what- addressing to which they provide.7 extent counsel ever leads 1479, pie presented anything Kemp, (11th I talked with or to me v. 784 1494 F.2d & n. 15 1986) (en banc). helpful I considered would on a Cir. sen- tencing phase pass.” if that came R13- 1445, 1439, Elledge Dugger, v. 823 F.2d 433-331. (11th grounds, on other 833 F.2d modified Cir. point, again a At later testified: Redden 1987) (stating must "at least Q. today prior You testified earlier relatives”); interrogate [the defendant’s] see trial, words, your you I think exact had done 1366, Cargill Turpin, also v. F.3d essentially nothing prepare mitigation (11th 1997) (finding Cir. effective assistance your in the event case client was convict- where potential counsel "obtained names” of charge. ed of murder Murder in further- witnesses from defendant defendant's continuing enterprise. of a ance criminal At sister); mother and v. Singletary, Bolender trial, what, during any, you efforts did the — (11th Cir.1994) (counsel F.3d ef try put together mitigation do case? fective where he "interviewed relatives con sentencing? InA. connection with cerning family background”); [defendant’s] Q. Mitigation case in connection with sen- Singletary, White v. 1224-25 tencing, yes, sir.... (11th Cir.1992) (counsel effective where he Very A. little. "spoke[] family preparing with members in R13-433-359. Zant, penalty phase”); for the Stevens v. cf. (11th Cir.1992) 4. Deborah Chandler testified that first 968 F.2d (counsel Redden 1083-84 asked her to find witnesses character for the effective where tried to secure in- sentencing hearing presence court on the afternoon that of defendant's relatives tell this, importance asking Chandler was convicted. See Exh.12 at 19. defendant of names, explicitly speaking Redden corroborates Chandler’s tes- him for with the two mentioned). timony point: on this relatives defendant Q. you go you go prepare Did did —when Jackson, (deficient Compare 42 F.3d at 1367 testimony? their performance counsel aware where of some We probably A. talked some that after- "possible” mitigating regarding de noon, sure, probably I'm not the morn- background fendant’s but failed to investi ing. gate); Singletary, Blanco v. 943 F.2d at 1500- Q. So it would have been after —sometime (11th (deficient 1991) performance Cir. you 2:30 alter before to her? talked messages where counsel left with relatives been, ItA. don't recall now. neglected mentioned defendant to con Q. Okay. itOr would have been sometime them); Dugger, tact 491, v. Middleton 849 F.2d morning? before 9:00 a.m. in the Cir.1988) (deficient (11th perfor We A. started at nine and we talked to mance learned where counsel morning, them it would have been before personal histoiy evidence from defendant but then. investigate); Cunningham failed to Q.... you much [H]ow time have to Zant, 1991) 1015-16 Cir. prepare Ms. Irene and Ms. Chandler Deborah (not failing deficient to lo testimony? Chandler for their cate more witnesses character where counsel Not A. much. people interviewed the three defendant identi R13-433-371-72. others). fied as well as several But Sin cf. (11th Tyler Kemp, gleton 5. v. Thigpen, 744-45 1985) Cir.1988) (counsel (finding although Cir. failing counsel con deficient for to not relatives, neighbors tacted was defi interview where he “asked [defen because girlfriend identify cient he "did not tell them that dant’s] their mother and to indi testimony any subject testify was needed on other viduals who could on behalf of [defen dant], guilt explain anyone” than or did not innocence and not name could sentencing phase proffer the of the trial or that evi where to defendant failed evidence needed”), mitigating of a dence have nature which counsel would found had he part grounds neighborhood). rev'd on sub other nom. Peek searched following explana- Redden offered appropriate it were Even if uncovering mitigat- tion: delegate the task of to legal one, person Well, without do guess, you witnesses to I number just first, con-

training you husband had do up whose coming what’s being you. faced the Number possibility immediately victed and what’s day, two, course, happens next Deborah if something sentenced to death the talking had On or hardly comply. your interviewing time of witness Chandler afternoon, drive that could be approxi- particular she had to witness that, you’d make at ultimately she mately hours Piedmont where value two lived, there a mental note of that. But again two least and Chandler hours testified, wasn’t, anything specifi- I’ve morning penal- to attend following time and cally directed to that ty approximately She thus had hearing. to me nothing was volunteered mitigation up twelve to round wit- hours in there. considered of value to testify then called nesses who would preparation or no from trial with little majority speculates cen- possible mitigating

9. The that Redden evidence. evidentiary prosecution sored himself at the Section 2255 hearing the did ask Redden wheth- When any preparation the court and that district shielded er he failed to mention attorney-client he had done for he indicated conversations from examina- Chandler's to ABA duty investigate possible mitigat- recognizes has a standard lawyer’s the sub- ing evidence even where a defendant has stantial raising mitigating role factors lawyer said to his he does specifically that both to prosecutor initially and to the present any mitigating not want evi- sentencing, court at that this task cannot Dobbs v. Turpin, dence. accomplished simply be on the basis of (11th Cir.1998). “Although the 1387-88 general broad emotional appeals or evi- mitigating decision whether to use strength lawyer of statements made to the client, has dence is for this court stat- defendant, by the and that investigation is ed, lawyer poten- ‘the first must evaluate essential discover facts about defen- tial avenues advise the client those education, dant’s background, employment ” offering possible (quoting merit.’ Id. record, stability, mental emotional Thompson Wainwright, family relationships, and con- the like. It Blanco, Cir.1986)); see also that, cludes “without careful preparation, (finding F.2d at 1503 ineffective assistance lawyer cannot fulfill the advocate’s “[tjhe where ultimate decision that was role.” 1 ABA Standards for Jus- Criminal reached not to call not a witnesses was (2d 4-4.1, commentary, tice p. 4-55 evaluation, investigation result of ed.1980). primarily counsels’ instead result of ’ Dismissing Williams relevance this eagerness to latch onto [the defendant’s] ease,10 majority says “[investiga- any statements he did not wit- want (even nonexhaustive, tion preliminary in- called”). Again, nesses Redden could not vestigation) is not required for rea- intelligently have counseled Chandler sonably investigate to decline to a line of availability about the or presentation of thoroughly.” defense Not this mitigating because he had no .contrary statement Williams and knowledge its nature or its extent. prior Supreme precedent, Court but the lawyer obligation B. A has аn to in- following citations pre- this statement hold vestigate mitigating evidence. cisely opposite, recognized as parentheticals for the cited Strick- cases. Taylor, Supreme Williams v. Washington land v. states that counsel has Court, citing to the American Bar Associa- duty either make a reasonable investi- Justice, tion’s Standards for spe- Criminal gation or to make a reasonable decision cifically lawyer stated that a defense in a investigation that no capital “obligat[ed] necessary. case is to conduct 668, 691, thorough investigation of U.S. L.Ed.2d the defendant’s S.Ct. (1984). background.” 120 1514-15. The Strickland also states preparation argued ques- that all of his important had been covered case. Such during direct examination: fully prior any tion to be needs addressed by this decision Court. Q. things A number of were de- by [appellate scribed counsel] Mr. Martin or majority's 10. The is at treatment of Williams questioned you were Mr. con- Martin prac- judicial odds with the well-established cerning a things you number of drawing general principles specif- tice of preparation any there this case. Were majority throughout ic cases has done you preparation matters or opinion. We certainly agree its that Williams did that not covered on direct examina- per does not establish se rule that “a defense you tion that can think be of that would lawyer present must character witnesses significance you you or do covered feel like sentencing phase lawyer or that a defense everything? (no may what his matter client have informed guess everything A. nature of him) every or instructed must in investi- case suggest covered. I don’t that each act of gate purely might see preparation if character witnesses was covered. effect, help exist any, Id. at who that invocation phase." Supra attorney-client privilege note 21. We do read should however reinforcing review of counsel’s effectiveness at the trial Williams as rule established prematurely level is addressed and decided counsel’s decision defense majority, as was not issue briefed evidence must be reasonable. 1348 attorney true an under complete may, It is that may make a “less than

counsel circumstances, strategic a some make professional “reasonable investigation” if a particular investigation. on the to curtail judgment supports the limitations choice 690-91, rea- Supreme 104 But the Court has tied the Id. at S.Ct. investigation.” a to amount cases cited sonableness of such choice 2052.11 As evidenced herein, major- investigation backing that choice: as well those cited as ity, per- it that counsel must thorough is axiomatic [Strategic choices made after investigation a preliminary form at least to investigation of law and facts relevant or able make an in- before he she is to options virtually are unchal- plausible “strategic” or decision about formed choices made lengeable; strategic that in- pursue or not to further whether complete investigation after less than vestigation. precisely are reasonable to the extent professional judgments that reasonable Williams, Supreme empha Court investigation. the limitations on support that, regardless of sized whether counsel’s words, duty has to In other counsel a background failure a thorough to conduct investigations make or reasonable prejudicial to investigation sufficiently make a decision that makes reasonable it sentencing, have affected outcome of investigations unnecessary. particular trial “clearly demonstrated that Strickland, 691, 120 466 U.S. at obligation.” did not fulfill their S.Ct. Dobbs, Likewise, 2052; F.Sd previous this see also at 1387-88 1514-15. Court attorney particular a “a not to

ly recognized (advising has defense decision duty investigate directly has a “to a inves must be assessed conduct reasonable circumstances, in all the tigation, including investigation an reasonableness heavy miti a background, possible applying defendant’s measure deference Strickland, gating Singletary, judgments”) (quoting evidence.” Porter v. counsel’s 2052).12 (11th Cir.1986). 691, Thus, F.3d 466 U.S. Head, Similarly, v. to have been detrimental. See Williams Court footnote strategic that a decision can be reason infra, addressing prosecution’s noted use of by thorough preceded able inves even not testimony. prior No decision of this their (11th tigation. 185 F.3d 1236-37 Cir. Supreme or thе held that Court Court has out, 1999). majority points As the Court constitutionally is effec- such "pursue every also that counsel need held tive. path hope all until fruit or until bears However, withers.” Id. that statement does 12. The majority suggests experienced support that counsel is not conclusion lawyers criminal trial are entitled to some obligated any investigation conduct all. Although heightened of deference. standard This Court has defense coun established that may experience counsel’s be relevant in as duty sel has a gations. to undertake reasonable investi sessing, example, partic he how viewed any investigation Failure conduct carry strategy, ular it cannot over to excuse mitigat "because of mistaken notion performance, incompetent case notwith inappropriate indisputably standing capable representation professional below reasonable norms.” case, guilt phase or even in the of this other Dobbs, (quoting 142 F.3d at 1388 Horton v. attempts majority parlay one. Zant, Cir.1991)). (11th respect professional judgment for the Redden did not fail to some of the lawyer we experienced expressed evidence; mitigating he failed to available Singletary, 148 F.3d Provenzano present any strategic of it. He not make 1998), general principle of en Cir. into defenses”; decision not "stack did not Provenzano, we hanced deference. But in arguments, out” "winnow certain witnesses strong "[o]ur reluctance stated completely or evidence. Redden failed to in guess strategic great decisions is second even vestigate availability mitigating evi by expe er where those decisions were made presented mitiga then case for dence and no counsel.” Id. at rienced criminal defense tion at all. He relied on Chandler's wife to added). (emphasis In this Redden mitigation witnesses at the eleventh locate hour, Rather, strategic no decision. he com made and his examination of the abbreviated pletely investigate discover people two failed who should known Chandler best, mother, readily his wife and was so deficient available evidence. Defer- investigate thorough counsel’s failure to conduct a or C. Redden’s failure mitigating the available evi- complete investigation may be excused dence not result a strate- from a preliminary investigation where has gic decision. reasonably informed counsel’s determina- Notwithstanding a complete absence of investigation tion that further is not war- evidence the record that Redden knew ranted. mere incantation ‘strat- “[T]he of or considered the existence nature of egy1 attorney not does insulate behavior evidence, mitigating majority assumes review; attorney an must have cho- that he made a “strategic choice” not to present mitigating sen not to investigate af- it. ter having investigated the defendant’s Lingering doubt background, and that must choice majority The first excuses fail- Redden’s reasonable under circumstances.” ure investigate positing that he chose Stevens, 968 F.2d at 1083 (emphasis add- obtaining acquit- “focus[ ] ‍​​​​​‌‌‌​​​‌‌‌​‌‌​‌​​‌​​‌​‌‌‌​‌​​‌​‌‌‌​‌​‌‌​​​‌‌‍instead on an ed); Horton, see also 941 F.2d at 1462 tal and then at on lingering (“[0]ur rejects case law a notion that choice, doubt.” That says majority, ‘strategic’ decision can be reasonable when a “was reasonable one.” The majority attorney has failed investigate respects errs several in reaching that options and make a choice reasonable be- First, conclusion. it conjecture is mere on them.”). part majority Redden tween pursue strategy “chose” to a of lingering Thomas, In Baxter v. we that the said gloss, doubt. This which majority has first step assessing claim of failure superimposed on in hind- Redden’s actions sight, again supported by not the record. investigate mitigating evidence is to “de- Redden himself never suggested that he whether a reasonable investiga- termine[ ] pursued any strategy. such Nor did the tion should have uncovered government pursued he suggest such so, If evidence. then a determination a strategy until after the issuance of the must be made put whether the failure to panel opinions. The sum total of evi- this evidence jury before the tactical majority depends dence which the choice counsel.” 45 F.3d its conclusion pursued that Redden a strat- (internal omitted) citations (quoting egy of lingering doubt is his evidentiary Section 2255 Blancо, 1500). hearing Thus, 943 F.2d at we may he not “did feel a reasonable minded not simply assume that Redden’s failure to jury impose the death penalty” investigate strategic was a decision deserv- Chandler. That’s it. did nothing Redden ing of deference. We must determine sentencing hearing to communicate whether the failure to investigate mitigat- jury they because harbored ing character evidence was an unreason- lingering regarding cul- doubts Chandler’s able omission or a strategic reasonable pability, they should recommend choice. death penalty.13 was, however, "strategic capital ence is due to Redden's only decision” Reddent’s first It case. if evidence indicates that made one. since his first and his first with the new majority’s Burger

The Kemp, reliance on v. 3114, guilt penalty phases. bifurcated See R13- 779-80, 483 U.S. 316-17; R15-1-28. (1987), misplaced. L.Ed.2d 638 is likewise Burger merely The Court mentioned re- majority Hopper, relies on Tarver v. viewing the facts defense counsel at Cir.1999), support 169 F.3d 710 its good issue in that case had deal of trial reasonably may contention that counsel de- experience. passing That reference was in no pursue strategy lingering cide to doubt to way connected to the Court’s conclusion that strategies during the exclusion of all other that counsel’s ineffec- penalty phase capital of a case. That tive, opine, Court did not as the however, Tarver, analogous. is not majority’s Burger implies, citation of that a strategy lingering let experience in on counsel’s extensive trial entitles apply sentencing: him to enhanced deference. This was not doubt so could ... must ‘flow from informed Second, majority’s gation if we credit the even rejects the ... case law judgment.’ ‘[0]ur counsel, clumsily, albeit that trial assertion can be “strategic” decision notion theory, it was doubt pursued lingering to attorney the has failed when reasonable presenta- to limit his for him unreasonable a and make reason investigate options first without investi- approach tion to that ” v. Baxter choice between them.’ able mitigating fruitful additional gating how (11th Cir.1995) 1501, 1514 Thomas, 45 F.3d earlier, noted strategies might be. As 874 F.2d Dugger, Harris (quoting that a fail- may simply not assume courts (11th denied, Cir.), cert. 493 U.S. strategic a decision investigate ure to was (1989), L.Ed.2d 568 it great Although deference. deserving of 1462). Moreover, Horton, F.2d at a peradventure strategic beyond is “imagined” could not have simply Redden options, the implies knowledge of decision case. He did mitigation actual the majority says: Chandler, he not know know did Chan not he did not need counsel Trial stated no for community, and basis dler’s there say a witness would know what all imagined he would have believing that would be determine whether witness supporting factual evidence Chan He mitigation. compelling at stated good character that good deeds dler’s piece what a you assume testimo- hearing. at the presented Section fa- “assume the most might be and ny assumption that Redden Finally, might you get vorable on lingering “chose” focus doubt judgment, form some not and then no makes mitigating exclusion evidence world, in the judgment most reliable evidence here mitigating because the sense it judgment compelling about how some fingering with a doubt does not conflict majority] agree. [the be.” might We ev- contrary, mitigating argument. On merely imag- No court has ever found that would of the kind available here idence say might a ining what witness The argument. have enhanced such an assistance of stand effective regarding constitutes Chan- kind of available evidence (see total good when that is the sum and character sec- dler’s deeds II.A, only have enhanced infra) into the could attorney’s investigation tion defense Chandler’s jury’s regarding doubts mitigating capi- existence participation murder. to make a tal “In order for counsel case. professionally reasonable whether decision Factually, not make Redden did certain evi- or not to lawyer “strategic Legally, decision.” dence[,] ... that counsel must be informed absolutely for nothing prepare does who options.” Jackson v. Her- the available adequately even if he penalty phase Cir.1995). trial is ring, guilt phase for the prepares forego- The constitutionally ineffective.14 attorney’s limit investi- “An decision to presented strategy den, Red- an informed one. Unlike hope would that the evidence first "interviewed counsel in that case any- week and both in case-in-chief last every thought helpful would Tarver be witness today might thing you be have heard witnesses, including mitigation Tarver's as your mind least sufficient to raise cousin, mother, aunt, grandmother, girl- of a doubt the defendant's shadow about friends, employer, former and members mind, your guilt, and doubt exists in if that community,” at 714. Redden did noth- Id. you pray resolve it in I would would ing. the defendant. favor of addition, Tarver's attor- Notwithstanding pro- Supreme Court’s polygraph ney called examiner who looking miti- in Williams that nouncement polygraph examiner Tarver. The interviewed a week falls gating evidence before sentencing hearing that objective testified at Tarver's standard of reasonable- below the ness, majority fails to Red- lie when he said he had not find Tarver wanting, but rather finds it Id. den’s behavior killed the victim in that case. appropriate: appeals comparable no in this case. heard Tarver, Moreover, request importantly, the evidence of a counsel’s unam- More least, strongly laud- lingering wife—at biguous pursue doubt decision —shows clearly that preparation cases establish with the father and mother together on phase any way not in guilt does one occasion before trial learn order to lawyer’s obligation prepare alleviate a of “character evidence which sentencing. mitigation No civil de- used for penalty reasonable at a proceed- Moreover, lawyer argue ing,” fense that it would be id. at 534. if counsel be- justifiable shrift, shrift, give lieves that there inadequate no or short time to assistance, to preparation damages provide effective because is counsel’s against liability strong. responsibility case Such an seek a continuance from omission the trial court.16 malpractice. would be considered A comparable certainly omission falls be- Possibility rebuttal of harmful objective low standards of reasonableness where risk inadequate of preparation justification The second after-the-fact just damages is not monetary suggested by but death.15 majority for Redden’s Consequently, rejected we “strategic have asser- decision” not investigate or “good tion that attorney’s expecta- faith present mitigating evidence derives from tion of a favorable verdict” somehow ex- “[mjisgivings Redden’s about hurtful penalty cused his failure to prepare cross-examination and rebuttal witnesses.” phase capital of a Kemp, Again, case. Blake v. we are left speculate nega- what (11th Cir.1985). In tive cross-examination rebuttal wit- Blake, the Court concluded that counsel nesses would have been coun- available to preparations “made no whatsoever ter the mitigating evidence that could have penalty phase,” id. at notwithstanding presented in this case. Redden cer- the fact that counsel had tainly knowledge interviewed the had no of what (hypothetical) defendant’s father several times and met cross-examination or those counsel, good bling able fact that trial mitigation like most witnesses until after the lawyers, opportunis- trial jury’s guilt phase was flexible and verdict almost insures tic: did available.”). he not think character witnesses that witnesses will not be good helpful would be or a use of time pursue, lawyer but a reasonable would undisputed 16. It is that Redden failed to seek altogether not foreclose himself from con- any point during continuance Chandler's sidering presented some if were trial: fact, him. In one such character witness Q. prior Given circumstance that counsel; presented to trial did have, you your didn't I think word not use him. was, you regard- or nothing had done little put Redden did testified that he not Chan- penalty phase. you consider Did dler's former minister on stand because “I moving for continuance? felt that in the of absence some number A. At what time? thing witnesses that would be a not wise Q. Prior trial? do.” R13-433-398-99. As Redden had not No, that, that, fact, A. not in investigated, no. he did not know R13-433-332. large number witnesses was available. He asking Nor did Redden ask for or consider incapable making therefore was an in- guilt pen- for a continuance between the judgment. formed why It unclear Redden did, alty phases of the trial. Id. at 324. He would think these character witnesses however, request a postpone continuance to helpful; nor does the record so any commencement the trail he could attend contain rejected that Redden in faсt Indeed, myself by "I had convention. committed quantity these witnesses. money word to attend the quality Convention mitigating of the available evi- Society of the International utterly Barristers.” dence proposition undercuts the Id. at 322. Redden felt "the had Court character witnesses would not have been had, agenda say, set the and that the court I’d helpful. my requiring acted to client's benefit ineffectiveness, finding In disposed this Court other has cases to be of first and then previously passive ap- granted condemned such put my had that extension. I didn’t proach mitigation gathering thinking asking evidence. See ("To mind to about for a further Blanco, 943 F.2d at 1501-02 save the continuance or a further break at time.” time-consuming difficult and task Id. of assem- at 324. hardly sur- him could come would re- toward rebuttal witnesses (imagined) during phase. prise penalty Indeed, he no what his idea veal.17 regarding concerns any Redden’s might potential mitigation witnesses own presenting possible consequences what does the record indicate aver. Nor testify who would to Chandler’s witnesses have evidence would possible adverse did not inform his decision good character no criminal record. Chandler had been. He such not to witnesses. putting good cases which Unlike wit- know of existence of these even might opened character evidence undertaken because had never nesses evi government introduce door for the availability investigation into jury- of which prior convictions dence evidence. Redden also testified unaware, Wainwright, Darden v. had been , and un- balancing after the favorable 2464, 91 477 U.S. 168 factors, potential the existence favorable (1986), inor which “cross- L.Ed.2d 144 cross-examination such matters ... have revealed mat examination “normally you putting on a doesn’t back off fact that would have of historical ters R13-433-415-16. He character witness.” for a life chances [the defendant’s] harmed than in- acknowledged other also sentence,” 792, Burger, 483 U.S. fears, no had reason not articulable he 3114, nothing in the there record S.Ct. pursue aspect of Mr. Chan- “the kindness possessed suggesting government that the phase.” Id. at 400. penalty dler’s death lurking, damaging against evidence such in in- Supreme The Court Williams is fact, appears In that Chandler. There, the this as well. structive on issue already government managed get had acknowledged presentation that the Court jury in the kind evidence before the that of the intro- of that evidence would lead to that Chandler was re allegations form of of not duction “evidence that was favorable suspicious “disappear sponsible for defendant, including evidence that to” the individuals, of conduct for ances” two juve- he “had been thrice committed not ” charged.18 which Chandler was Williams, system.... nile S.Ct. that The “bad” rebuttal evidence in that The Court found counsel 1514. government suggests “the ineffective because failure ease be was available in this case Redden’s testi- comparatively introduce the voluminous that some individuals mony that he knew speak of evidence amount “considered community justified by in the Piedmont a favor was not tacti- Williams’ ” dealer,” case, drug a In Ronald Chandler to be cal decision.... Id. there community “the law enforcement no that Redden made tacti- also evidence decision, and no him.” R13- cal the record contains Piedmont ... was hostile to any that there was rebuttal evi- fact indication light of the that Chandler 433-399. unfavorable to Chandler. dence just orchestrating of had been convicted with his murder-for-hire in connection Purpose mitigating 3. evidence of leadership marijuana-growing en- role fact that some terprise, people majority’s post The final hoc rationaliza- drug miti- present deemed deal- failure to community Chandler tion Redden’s police antagonistic gating appears be Redden er and that were deciding or not to use it. majority did not whether 17. The asserts Redden before Williams, S.Ct. failing at 1514-15. pres- to articulate a reason for need witnesses, because, mitigation ent additional regard potential cross-examination or Again, that intro- even there a risk witnesses, "fear of un- ducing rebuttal of those mitigating evidence would character rebuttal, may This state- damaging known itself be reasonable.” still Redden had invite Supreme of the Court's duty weigh ment flies in the face both the value of holding must in Williams that defense counsel evidence and the force of available rebut- (and investigate reasonably the substance in order to assess and discover tal evidence risks) corollary mitigation choices. such Woodson, “questioned appropriate (quoting [Chan whether evidence of sentence” 2978)). 304-05, good would have been specific dler’s] acts U.S. at 96 S.Ct. “A compelling, considering process significance the Govern that accords no to rel ment arguing [Chandler] evant facets the character and record of man, in all a bad ways arguing the individual offender or the circum committed specific particular criminal acts.” stances of the offense excludes pronouncement This from surprising fixing contradicts consideration in the ultimate every holding Supreme of the relat of death punishment possibility Court of com ing to the purpose mitigating passionate mitigating evidence. factors stemming purpose mitigating pre The evidence is from the diverse frailties of humankind.” Woodson, 303, cisely good 2978; to show that the defendant is 428 U.S. at 96 S.Ct. Ohio, person.19 Pennsylvania Lockett v. also ex U.S. see rel Sullivan v. 602-06, Ashe, 51, 55, 98 S.Ct. 57 L.Ed.2d 973 302 U.S. 82 L.Ed. (1978). (1937) (“For Eighth and Fourteenth “[T]he the determination sen sentencer, tences, require justice Amendments that the generally requires consider all but rarest capital particular kind ation more than acts precluded a miti which the crime considering, as was committed and that factor, gating there be into aspect a defendant’s taken account the circum together character or record.” Id. at stances with the offense propensities character very of the offend task before a er.”). By failing mitigating evi weigh is to the circumstances and during penalty dence stage of Chan severity against of the crime committed trial, dler’s Redden denied Chandler his goodness qualities the convicted right constitutional present jury stage At defendant. that of the trial “in evidence of his character and record. capital the respect cases fundamental for Williams, the Court that said “it is undis humanity underlying Eighth the Amend a puted right indeed, had a Williams ment ... requires of consideration the — right provide constitutional the character and the record of individual of —to the mitigating evidence that his trial fender the partic and circumstances of the counsel either failed to discover or failed to ular a constitutionally indispens offense as 120 S.Ct. at offer.” 1513. Ronnie Chan part able the process inflicting of of the dler is entitled to in right the same this penalty of death.” Woodson North Car case. olina, 304, 2978, U.S. S.Ct. (1976) (internal L.Ed.2d 944 citation omit The has Supreme unequiv- Court stated Williams, ted); see also S.Ct. 1516 ocally lawyer capital that a in defense a (“Mitigating danger evidence unrelated to case is “obligatefd] thorough to conduct a may jury’s ousness alter the selection of investigation of the defendant’s back- if it penalty, even not undermine or does Williams, ground.” 120 S.Ct. at 1514-15. prosecution’s rebut the death-eligibility gainsaid It cannot be that Redden’s inves- case.”); Penry v. Lynaugh, 492 U.S. tigation background of Chandler’s 319, 109 (1989) 106 L.Ed.2d 256 Williams, Applying nonexistent. we are (finding the in capital sentencer a case bound to conclude that Redden’s failure to must ‘uniquely ] the defendant as preliminary “treat[ undertake even the most in- bein[g]’ individual human and a vestigation availability mitigat- [make] into the of ing evidence, reliable is determination death the as his utter failure to well as Furthermore, govern- guilty examination of the mean that the ... son is or is not closing argument deserving penalty.” ment's demonstrates that the 73-74. death Id. government argue misery. “He Chandler caused He lived off of other presumption people’s misery bad man. “His of innocence and their deaths.” Id. "Mar- stripped ty has away.... by single, are now You death was formulated Shuler's somebody pos- allowed at the Ex. to look man himself.” diabolical mind of who was Ripper “Jack marijuana R12-37-64. had a mother. sessed idea mon- with the ey important Charles Manson had a mother. That does not was more life.” Id. than evidence, it dictates a reversal performance, den’s fell below the available suf- objective prejudice of reasonableness. Chandler standard the basis Moreover, pre- he which the manner perfor- a result of deficient fered as testimony pen- two Indeed, sented provides this case a more mance. witnesses, mitigation Chandler’s alty phase than compelling finding prejudice case for wife, effec- lеss than itself mother conviction, as, upon even did Williams tive, The kinds of harmful. perhaps even likely was a much less candidate Chandler brevity of and the questions asked Redden Terry than was penalty for the death im- jury with the left the his examination Williams. two who theoreti- pression that the women had little knew best cally Chandler A. available than say about him other nothing Chandler for participate building he fact that liked Redden’s houses.20 investigated presented Had Redden constitutionally ineffec- penalty phase was was constitu- to which Chandler case tive. entitled, given would have tionally failure, there II. But Redden’s opportunity to know Chandler’s jury the probability result reasonable knew Ha- community as his it. character proceeding penalty would have been discovered in one afternoon beas counsel probability to un- sufficient different —a at Chandler’s church witnesses who the sentence dermine confidence knowledge examples Chan- specific case. death traits, including character com- good dler’s children,23 generosity,22 love for passion,21 finding dictates Just Williams respect elderly,24 strong religious of Red- assistance on basis ineffective initial, See, example, testimony Joseph exception a few infor- 20. With the answers, Fortenberry Jerry ("generous”); Masters questions entirety mational (same); (same); Joy McCoy Elaine Freeman and Irene of Deborah Chandler's Chandler’s ("He’s give you generous person. just He'd reproduced now-vacated back, it was last States, off of his even if shirt opinion, panel Chandler v. United one.”); ("he’s always been Sharon Robertson 1297, 1301-02, (11th Cir.1999), nn. generous”). giving and vacated, opinion reh'g granted en and banc prosecution Dec. used brevi- 1999. See, testimony Joseph of example, for 23. testimony advantage. ty of the to his “We (loved children); Ricky Fortenberry Kenneth question one be- woman] didn't ask [either ("fantastic" children); with Rita Chasteen say, gentle- what had and cause to ladies (particularly caring Sue for fatherless Smith my just ... child and he’s men he’s children); ("like a Elaine Freeman second my background. husband and his I here’s passed after their dad children] dad her [to everyone you probably have a submit hus- ("very good away”); [to B. Russell role model not, you probably Ev- or If will. band wife. children], encouraging] stay them ery you a Jack the one had mother.... school, church”); ("loves go C. Chandler Ripper had a Charles Manson had a mother. children”); (very Kerry good with Chasteen ... mother. That does not mean that son children). deserving guilty is not is not death penalty.” Ex. R12-37-74. See, example, testimony Billy for 24. (elderly community "were Russell residents See, very example, testimony special to him .... would treat [H]e for of Herbert 21. ("a treating McFiy just like was his own fami- ("compassionate”); Ruby them McCord man”); ("always compas- Jerry ("caring”); ly”); Sue had caring Masters Rita Smith "giv- elderly people”); R.M. Trammell ("good-hearted,” sion for the Marsha Dale Heath 82) ("He wanting help Ricky (age ("always me with ing”); Chasteen has a Kenneth being extremely caring per- something”; greatest about the friend reputation ”[H]e's for 75) had.”); ("He's McFry ("always son.”); Ruby (age I Freeman one ever Elaine caring people respect”); Ruth compassionate, generous treated with love and [her] most (Chandler's (Chan- met.”); grandmother) ("good caring Henry ever Lawler Trammell I’ve always twice week ("genuinely cared dler visited once or person”); Tina Stokes anything). see needed people”). if she about beliefs,25 because, patriotism,26 strong testified, work eth- ee Montgomery al- ic,27 disposition.28 They and a though non-violent he would often work miss because up opinions specific alcoholism, also their with backed his Chandler never gave up telling examples “always put and Chandler’s behav- on him and right back to [him] ior. work.” Montgomery summarized ex- perience with by saying Chandler gave sup- freely Chandler his time and helped than I anybody “[h]e me more array port to wide of members of his of.” know community. Fortenberry, had Joseph who grown up with Chandler and had worked McBrayer Lesha known has Chandler construction, with him in others, testified that many since around Like 1980. she daily Chandler’s visits him inspired to walk testified that Chandler and his had wife had injuries provided after he been told that his in a food and transportation for her traffic accident him prevent would from family while her husband was out of work. Smith, walking ever again. Rita Sue who McBrayer’s When husband became abu- sive, estimated that shе had known Chandler family Chandler would her take years, for 25 told of how Chandler in. Chandler assured her that he and his and decision, his wife had allowed Thomas Mont- family support would her whether gomery stay and his wife to with him while stay it was to her husband or to leave out of Montgomery testified, work. Chandler McBrayer him. As Chandler provided groceries for couple kept and his word: “I had moved Colorado. Montgomery counseled My confront his al- husband been in prison got and he straighten and coholism out his life. And I out. had talked Ronnie about it transported Chandler Montgomery to and thought and Ronnie told me I could Anonymous Alcoholics meetings. there, make it with him to go up Montgomery confirmed all this and added that if didn’t try work that he would home, that he had later get sued Chandler due to an best to me and he did.” When injury he had working McBrayer’s sustained while for again husband became abu- They sive, Chandler. settled Chandler, their differences she contacted Debbie him Chandler took back as an employ- get Chandler sent someone to her. She See, (Chandler example, testimony ley working of Kenneth was hard and ”[h]e (Chandler stop mason, good Chasteen his car carpenter, was too.”) real brick (Chandler pray people); (hard working); Don Matthews Ruth Trammell Ken- (Chandler person); ("Ronnie religious Billy always Russell neth McCord hard.”); has worked (same). "very religious"); ("he Sharon Robertson Hubert Masters was a hard- man”). working See, example, Joseph ("He Fortenberry 28.See, patriotic”); was real example, testimony Joseph Ken- for of (Chandler sang (not violent); neth Chasteen Fortenberry "God Ruby McFry Bless top (same); (not of peak America” his voice from the Jerry violent Masters or hot- mountain); (Chandler violent, (not of a Rita Sue Smith a tempered); Kenneth Chasteen patriotic "very pull person,” would fought, his car grudges); never never held Don Mat- (not violent); sing (Chandler over to the side of road and "God thews Rita Sue Smith America”). Bless paid up-front painted, had to have house his painter quit half-way through. but the had See, example, Joseph gotten angiy quot- Chandler had not but had (Chandler said, Fortenberry hard-working, just was ed the Bible: "Ronnie well the Bible carpenter they your give "an excellent and an excellent your brick said if cloak.”); take coat to him state”); layer, (never if not Kelley one best Kenneth Charles ("Ronnie hateful); Jerry get up day- Masters will from known him to be violent or Kenneth violent, (not light and work until dark he easy-going); and wouldn’t McCord seemed Bil- done.”); quit (remembered job ly until the getting Kenneth Chas- Russell Chandler once ("[Hje’s conscientious, always teen been angry apolo- hard but someone Chandler later worker.”); (Chandler gized: Don get upset.”) Matthews a hard "It a lot takes him worker, (not violent); McFry Kelley "one of the most skilled I’ve ever Deborah Sharon with”); ("He’s (same); Joy (same); McCoy very worked a Charles Thomas Chandler hard-working (same). person”); Mary Kenneth Charles Kel- Dobbs I a or two ... them and remember time have been able that she would not testified to leave Piedmont without Chandler’s Ronnie wouldn’t hesitate [when] to return to dollars, four, he five whatever help. three or had, got their there for to see kids Chasteen, Ricky who testified Kenneth toway out of his lunch.” Chandler went life,” “all known his that he had Chandler community. As care in his people following anecdote: offered the Stokes, from Tina who knew Chandler mason, carpen- know a a I Ronnie was church, testified, “I’ve known school and ter, that had lost people he know and he him for folks who buying groceries before, jobs he found out their when [s]topped it ... thought [Once he] needed it, they got he make sure about one way Georgia night on the home I one occasion work. And know some and he knew of some folks that needed money that he took out his personally stopped bought and in and groceries some pocket gave guy and it to a that had own Henry couple bags groceries.” job had three or four kids just lost his I that Ronnie was personally know Lawler testified that when he out money give away pregnant, didn’t have Chandler work and his wife was any way. he Ruby had killed. gave him deer that he since his McFry, who had known Chandler Freeman, has known Elaine who Chandler him to brought father first church as school, high when one since testified Chandler, child, hav- recalled that without in a car lost a son neighbors Chandler’s asked, accident, brought groceries had money gave her “Ronnie took buy any. because didn’t have insurance to when afford to them she could not bury boy money and took them to had Marsha Dale Heath known Chan- wit- bury them him.” Two other help years, ten met approximately dler for had nesses confirmed this anecdote noted church, family. him and knew She occurred, that, at the time this incident to- generosity testified about Chandler’s pay ill afford to for the Chandler could her son: wards boy’s burial. When Freeman’s husband [M]y [Tony] shoes son didn’t died, “stay her offered to let Chandler a neighbor’s and Ronnie was out at be- I wanted to. It long house as as [his] Tony us he made hind saw just long as I mine to do with and Tony ... about shoes [his] statement always place stay, worry not to and, Tony It any. said don’t have it.” He her to rent pay about never asked neighbors after that the long wasn’t payment when she accept and would Ronnie visiting was there that that when one offered. She also testified shoes, pair day brought two Tony car, co- of his needed a Chandler workers of one it two. instead all of signed pay- the loan and made all Harbert had known Chandler McCord ments, attempting to seize the vehi- never life. He that Chandler testified uttering Billy cle and a harsh word. never buy pair people would often of cleats paid that Chandler had Russell testified Mary According for him when who needed them. utility bills and rent he was friend, Dobbs, injured in a fire and could not work. Chandler’s wife’s best every day, bought Chandler visited Russell almost new Chandler even shoes for making he food and that sure that had pastor had pastor when he noticed re- alright. Russell everything When shoes. He said that holes his also work, enough covered to return Chan- twenty-dollar routinely Chandler donated him and dler drove there back. emergency squad. bills for local rescue Russell, neighbors Billy one of Chandler’s Fortenberry that Chandler had testified employees, and confirmed that Chandler re- buy “I helped family groceries: his pocket had donated whatever he in his and he would member several occasions also bring charity. the house and leave when asked for He told vegetables utility personal paid experience. how Chandler bills for “I was out work families needy and wood and it cut hauled and needed work real bad Ronnie get for them- people who could out it Kerry found about and hired me.” selves. Chasteen, who had for known Chandler

Many years, witnesses stressed Chandler’s over testified that Chandler nev- donating both in terms of his generosity, away anyone er turned who needed work. labor, time caring terms of Chandler, Dale Heath Marsha told of how employees. his Several witnesses testified hearing after money, Heath needed helped had a Chandler build church suggested they had to his wife that hire fellowship parson- hall and to renovate home, Heath to clean help their even age pay. Kelley, without who Sharon had really though help. need the known 27 years, Chandler for described Several witnesses testified that Chan- grass how he cut the a friend of hers dler had a particularly way kind chil- with who was unable to so due a do himself Fortenberry dren. testified that “[chil- brother, heart condition. Chandler’s older mean, play loved Ronnie. I dren] he’d Charles, had, told of how Chandler without and, mean, with them I talking I’m not asked, being porch built handi- about five minutes. I mean he would capped man so that he get could into his spend just there on minutes easily. house more Chandler asked noth- spur of the moment of playing. kind And Henry for his labor or the materials. you enjoyed could tell he really Jerry it.” explained Lawler that Chandler had helped house, Masters had been Chandler’s him to build his next-door laying the doing masonry foundation and work neighbor years. on for four He described his fireplace. built a barbeque Chandler relationship with Chandler as follows: grill for Hubert Masters. According to very earing “Ronnie person, very Kelley, Sharon “There was a time when we person.... giving [M]y dad worked all needed some work done the house and life, us, spend his didn’t have time to with money had the for supplies we but we taught so Ronnie kind of took inus me money didn’t have for labor. And Ronnie sport hunting fishing.” Ken- came nothing just and done the work for added, neth Chasteen “He was fantastic as a we friend[] because were friends.” [with He took his children and children]. Robertson, sister, Sharon Chandler’s told get several other children that couldn’t howof Chandler did brick work for her so out, riding, take them would introduce protected that her house would be bow, sports, shooting things them on-coming winter. “It inwas the win- nature.” Kerry Chasteen described cold, very tertime and it he but given how had all money Chandler get worked the cold to it done. And overhearing his wallet to woman after him, pleasant know it wasn’t he did her mention that she could not afford to any way because our house needed to be presents buy for her children. Christmas bricked and out of the weather. And appreciated Children Chandler’s efforts. really expect paid didn’t to be for it ei- Wendy Twilley, years who was old ther.” arrested, when Chandler was testified that Fortenberry gener- stressed Chandler’s he was like a father to her. osity employees. towards his As Forten- Chandler also loved to share knowl- it, “If berry put was somebody there edge others. Jerry Masters testified right [Chandler’s construction] crew there him taught Chandler to hunt and working up was a man and he came taught Joy McCoy’s to fish. He husband dinner, there and tell him he didn’t have taught how to hunt deer. He also Mas- with, money buy dinner Ronnie do work ters’ father-in-law how to brick would see that that man ate if he worked.” Matthews, and work. “He was the type Don block who worked Chandler’s business, construction confirmed from would like to share what he knew.” Ken- seriously had offered that Chandler $500 also noted that Chandler neth Chasteen Shuler, it could well to Jarrell to murder always willing people to teach mason- was had motivated that that offer Don Matthews have doubted skills. ry carpentry and Indeed, him- to kill Jarrell Shuler. carpentry skills Chan- Jarrell learned also “[ajnd to noted, star as dler, government’s I’m not the self—the witness and he charge made numerous the murder done that for.” that he’s one —had regarding statements Chan- inconsistent mitigating compels B. This evidence contrast, In in the murder. dler’s role accordance with reversal that the no doubt Williams there was Taylor. v. Williams having to committed confessed defendant of which he was convicted. the crimes of David Ronald Chandler was convicted kill Ray to Charles offering Jarrell $500 great There also contrast between is murder is to Although any Shuler. Marlin of and criminal histories Chandler prior condemned, Terry indisputable it criminal prior had no Williams. Chandler a committing was convicted Williams history incarcera- background and no and heinous crime. much more heartless hand, Williams, an on the other had tion. to have killed a drunken He was found history had criminal and extensive elderly by beating in his him to man bed constantly throughout his life. incarcerated re- with a mattock after the man death Furthermore, substantial evidence him a of dollars. couple fused lend history history criminal and Williams’ Williams, 120 at 1499-1500. He S.Ct. jury was to the presented incarceration spree a crime in which he then went on phases and of his guilt both elderly was savagely beat woman who trial, expert testimony as that “there was a not “vegetative left in state” and was ‘high probability’ that Williams recover, set a fire outside expected to pose continuing threat serious during him stabbing man’s house before society.” Mitigating 120 S.Ct. at 1500. robbery, cars. Id. another and stole two offered on behalf of a defendant evidence arrest, set fire at 1500. After Williams prior background has no criminal who jail, which he convicted of especially pertinent jury’s determi- id., arson, having strong “confessed nation of whether a defendant is sufficient- urges to choke other inmates and break susceptible to such that a ly rehabilitation prisoner’s jaw,” Tay- a fellow Williams death sentence is unwarranted. Cir.1998). lor, In Finally, mitigating whereas the evidence contrast, disputed it was never Chan- opened could have the door for Williams died, was not when the victim dler evidence, negative the nature rebuttal and that actual and the victim shooter mitigating evidence made Chandler’s in tar- engaged were both intoxicated susceptible less to such an significantly get with firearms. practice Mitigating attack. evidence can serve dif- Moreover, majority points purposes. out ferent Williams’ Chandler, degree regard mitigating “the evidence of evidence addressed his confessed crime. overwhelming.” culpability There was of his guilt It consisted of evidence that Williams question as to whether Chandler was even Jarrell, age man been committed involved in the murder. “mistreatment, Shuler, clearly had been the victim actually who shot had his abuse, early neglect during the mur- child- committing own motivations hood,” re- mentally and was “bordérline wholly independent der —reasons presented may provided. tarded.” Evidence was also inducement Chandler pose danger that he would future had abused Jarrell’s sister Shuler mother, society kept in a structured environ- attempted Jarrell had to murder Williams, occasion, at 1501. The on a and Jarrell ment. previous Shuler in this nearly case beer case addressed consumed before person, as a shooting good Even if believed Chandler’s character Shuler. of consisting prior mitigating of evidence true of character primarily evidence by might jury the good persuade impose acts which were unrebutted not to noted, As the “not all death sentence. government. Court of the additional evidence was favorable to imagined The district court these Williams,” been because could have drug dealing witnesses “believed that revealing introduced without more of both crimes violent were irrelevant to a per- previous reminding bad acts and Williams’ character,” son’s and therefore concluded jury long of history prior of Williams’ testimony their would “of little at Such criminal detention. Id. 1514. fact, however, moment In jury.” to not the case Chandler. not a single expressed witness such a

In all the light foregoing, the district view.30 Their purpose offering charac- that, concluding ter try court erred notwith- evidence was to persuade standing extraordinary testimony that, jury spite de- may crimes he above, committed, prej- tailed Chandler had not have Ronnie Chandler udiced counsel’s failure to elicit this deserve be put death. As noted earlier, The testimony. judge this purpose presenting mitigat- based reasons, ing conclusion on three none which evidence of a phase (1) legally are all of capital perform valid: the witnesses trial is to allow strong Chandler; showed a bias in favor of its constitutional function considering (2) the good “any character evidence of a aspect related defendant’s character or Lockett, a time remote from that of Chandler’s record.” 438 U.S. (3)

crimes; 2954; Collier, many the witnesses see also F.3d at 1201-02 (“Counsel ignorant were of Chandler’s criminal ac- presented more than a no hollow tivities and thus no real insight testimony into shell of the necessary ‘par- these character. None of reasons is ticularized consideration of relevant as- legally sufficient to such a conclu- support pects of the character and of [a] record sion.29 imposition convicted defendant before ”) upon him a sentence of (quot- death.’ First, if the fact mitigating Woodson, U.S. strong character witnesses “showed a bias 2978). in favor of enough Chandler” “se- verely Second, undercut value” of summarily the district court dis- testimony of 40 such witnesses and to missed and discounted value value,” render their “of mitigation tenuous good witnesses because “this mitigation then no witnesses would ever character period evidence related a time a meaningful in any capital separated effect Chandler’s mitigation trial. All witnesses have bias. crimes” and was “of little miti- therefore By definition, its very mitigat- nature and gating previ- value.” Although Court ing character evidence a “bias” in ously evinces has observed that circum- some defendant; favor this is particularly relating stances character addition, true, analysis government alleged the district court’s were their views of prejudice See, issue is not as clear as the change. example, Chandler would suggests. majority Court acknowl (asked "[T]he Marsha Dale Heath if she would edges question prejudice that the in this case change opinion, replied, her she “I don’t one, is a people close and that reasonable this, know. I don’t—I haven't heard so I disagree could about whether Chandler was know.”); (probably don’t Don Matthews Chandler, prejudiced.” United States v. change opinion); Joy (opinion McCoy (N.D.Ala. 1996). F.Supp. change: "I would still need to know because I know a circumstances do not many Although witnesses said that their that.”). question Ronnie Chandler like personal change views of Chandler would not witnesses, posed was not four the last Shar- government's allegations even if the were Robertson, McBrayer, Kerry Lesha Chas- true, gov- others either refused to believe the teen, Montgomery. and Thomas allegations ernment’s said what the 1360 defendant, presents posi of the one that time the conduct remote

events aspects humanity been convicted tive of his and individual has the defendant which ity, jury weigh good when the can weight balanced so that сarry less may factors, Stanley see v. of crime qualities against the nature the aggravating against (11th Cir.1983), 955, to whether Zant, 969 committed determine death 697 in this case was for this individu appropriate at issue the sentence the evidence temporally present nor remote to the general al. Had Chandler been able neither of which Chan- and testimony sought criminal conduct that he introduced from the testimo- evidentiary Much of the convicted. introduce at 2255 dler was his Section interactions ny personal jury concerned the would have been able hearing, years of within five by giv Chandler that occurred perform its constitutional function “ government claims Chan- the time ing response moral ‘reasoned marijuana deal- grower and dler character, became background, and defendant’s ” they witnesses testified crime,’ 327-28, er. Other Penry, 492 U.S. contact with Chandler continued have 2934, v. (quoting Lynaugh, Franklin of his arrest.31 up until the time 164, 184, 2320, 108 S.Ct. 487 U.S. (1988) (O’Connor, J., concur L.Ed.2d concluded that Finally, the trial court ring judgment), and “were unaware of California witnesses who mitigation Brown, 837, 93 479 U.S. 107 S.Ct. marijuana would operation Chandler’s (1987) (O’Connor, J., L.Ed.2d 934 concur of ignorant to be shown themselves have ring)), by considering and “the character character, their Chandler’s so individual and and record offender mitigating little or no would carried of particular the circumstances this statement conflicts weight.” Again, fense,” Woodson, U.S. law that a de- requiring with all case quantity of quality 2978. Given the and opportunity have the fendant at the time the evidence that available type per- as to the mitigating evidence trial, against backdrop viewed has son the defendant shown himself be aggravating fac statutory mitigating and actions and behavior. This through his consider,32 jury required to tors the go required mitigating evidence does probability there is a reasonable culpability for crimes to a defendant’s present any failure to Redden’s he was convicted. As has which evidence, mitigating char- available Chandler repeated, purpose presenting view would not have been sentenced death.33 complete acter offer witnesses value, ing something pay pecuniary who testified on Chandler’s lo The witnesses 3) 848(n)(6); good § specify U.S.C. and that he committed behalf often did not when However, many planning after "substantial occurred. witnesses Shuler’s murder acts had 848(n)(8). § premeditation,” and in contact with U.S.C. testified that remained rejected up jury planning until his arrest and that his char- "substantial Chandler factor, leaving premeditation” only two unchanged. and acter aggravating against compare which to factors determining impose statutory mitigating life im- the two factors intro- In whether sentence, 1) by stipulation: prisonment jury duced that Chandler had or a death record, prior 21 U.S.C. weigh or im- no criminal must consider balance 2) killer, 848(m)(6); mitigat- § statutory aggravating the actual balance of death, Jarrell, punished important ing be factors. These factors form an 848(m)(8). § backdrop Redden’s is all to our evaluation of whether the U.S.C. failure prejudicial presentation mitigating char- case because the of the omitted more this aggravating statutory factors would have created a reason- acter evidence equipoise. probability a different in this case were in essential able result. aggravating there were three Chandler’s 1) supra presented jury: that Chan- 33.As noted in footnote the district factors prejudice intentionally engaged issue a close dler in conduct intend- court considered resulting unanimously recom- [must] be one. "[T]he that Shuler killed sentence, [otherwise,] death, 848(n)(l)(C); 2) § a death the dis- 21 U.S.C. mend Shuler’s sentence, procured killing by promis- impose trict shall other than court that he Shuler's Accordingly, I that Chandler suffered of lingering find doubt can effective prejudice consequence as a of Redden’s strategy avoiding death penalty. during penalty ineffective assistance strategy But the use choice to must be phase. by made defendant’s counsel.1 It is evident from the record that Chan- CONCLUSION strategic dler’s counsel made no decision Supreme recognized that Court has a “lingering” to use or “residual” doubt “qualitative between death difference defense on Chandler’s behalf. Not even penalties greater calls other for a de- government suggested that he so gree reliability when the death sentence panel opin- until after the dissent from the Lockett, 604, is imposed.” 98 U.S. majority iоn in this case.2 The opinion Woodson, S.Ct. 2954. In plurality retroactively lawyer credits Chandler’s Supreme United States Court concluded making strategic decision that is not capital that “in the fundamental re- cases result, by indicated As a the record. to- spect humanity underlying Eighth day’s virtually decision forecloses fu- requires ... Amendment consideration ture claim Strickland of ineffective assis- the character and record of the individual during penalty capital tance phase and the of a par- offender circumstances majori- constitutionally proceeding. ticular offense as a indis- Because I believe the pensable part process inflicting ty opinion Hopper extends v. too Tarver 304, penalty of death.” Id. at 96 S.Ct. far, I respectfully dissent. a lawyer absolutely nothing

When does investigate mitigating whether

exists, he cannot be said to have made

strategic decision not to present evi

dence. When that evidence does exist and

it is reasonably probable presenta that its

tion would have made a difference in the HOGAN, Petitioner, Edward E. outcome, conversely, its absence outcome,” “undermines confidence v. Strickland, 694, 104 2052, U.S. THE DEPARTMENT OF lawyer be cannot said to have been NAVY, Respondent. “functioning guaranteed as the ‘counsel’ Amendment,” No. 99-3225. by the defendant the Sixth id. at S.Ct. 2052. This is such Appeals, United States Court of case. Accordingly, Ronald Chandler Federal Circuit. constitutionally entitled to a new sentenc ing hearing. July

WILSON, Judge, dissenting: Circuit

We v. Hopper, held Tarver 169 F.3d (11th Cir.1999), that the creation death, jury,” objective authorized law.” 1073, States v. United falls below standard Chandler, (11th required representation. effective Cir. reasonableness 1993). -, juror Taylor, Just one would have to Will be iams - U.S. 1495, 1511, mitigation swayed pre evidence not 146 L.Ed.2d 389 penalty sented in order the death (2000). sentencing option. eliminated as States, 2. See Chandler v. United If, here, (Edmondson, J., (11th Cir.1999) lawyer as the record shows sim- vacated, ply investigate dissenting), fails "to and to No. Cir. sub- 97-6365 3, 1999). stantial evidence to the Dec. notes Redden Although majority advised Deborah witnesses, counsel as Redden never it clear that interviewed 67 is else, Chandler, anybody regarding the or only for witnesses interviewed those were hoped nature of he to elicit of the trial and guilt phase of the purposes penalty stage. Moreover, at the See R13-433-364. purposes mitigation.8 not for request a Redden not consider or con- did with majority of these interviews were tinuance in for the next prepare order unlikely government who were witnesses day’s penalty Id. at 324. phase. evi- favorable character offer unsolicited There is no evidence that Redden dence. he he thought When asked whether single question witnesses asked these some inter- opportunity would have had mitigation in mind. with witnesses, Redden potential view character insinuates, “Well, majority extrapolating hope. And not responded: attorney-client really spent that I a lot of time or from Redden’s use one issue, did privilege much as to one that Redden effort on felt there was that or investigate might not Chandler time to on.” at 398. The best because spend Id. Although him to do could that he would have wished so. suggest he do was by anyone suggestion totally unsupported prepared have been listen had case,9 majori- ‍​​​​​‌‌‌​​​‌‌‌​‌‌​‌​​‌​​‌​‌‌‌​‌​​‌​‌‌‌​‌​‌‌​​​‌‌‍even if anything When asked record volunteered useful. ty’s cor- why any specific prepa- interpretation he facts were had “done rect, attorney that an penalty phase,” ration for death id. at this Court has found Q. Redden, nothing contrary, you Mr. on cross-examination tion. On court asking prevent prosecution Red- from mentioned that there was some interviews trial, he discussed existence during den whether had prior to witnesses trial and presentation though independent you recol- don’t Indeed, prosecution re- interviewed, when the Chandler. quested permission many you were lection of how to ask Redden whether y'all have been told Ms. Brotherton that client, topics with his had discussed certain files, files, have 67 witness with information testify court Redden to the district instructed witness; regarding some contact with the fact of the but not as to conversations that correct? R13-433-385. Far reveal what was said. A. I she said 67. believe chilling halting inquiries or even from such Q. witnesses, all of those howev- And prosecutors asking questions along er, guilt/in- were witnesses that dealt with lines, merely those court stated that trial, nocence issues in the is that not correct? rulings questions would make A. Those were. attorney-client privilege "on a touch on the Q. guilt/innocence type wit- All 67 were situation, case-by-case situation basis.” nesses. Clearly, prosecution have asked Id. could say A. I correct. that's ever conversa- Redden whether he had R13-433-406. family with Chandler or his members tions regarding

Case Details

Case Name: David Ronald Chandler v. United States

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 21, 2000

Citation: 218 F.3d 1305

Docket Number: 97-6365

Court Abbreviation: 11th Cir.