*1 Jr., ANDERSON, Petitioner- Fred
Appellant,
SECRETARY, DEPART- FLORIDA Attorney CORRECTIONS,
MENT OF Florida, Respon-
General, State
dents-Appellees.
No. 11-13921. Appeals, States Court
United
Eleventh Circuit.
May *3 MARTIN, TJOFLAT,
Before DUBINA, Judges. Circuit TJOFLAT, Judge: Circuit is a Florida death- Anderson Jr. Fred capital awaiting execution row inmate on March occurred murder. The crime a bank robbing Anderson was while only Dora, Florida. The bank in Mount time were two duty at the on employees Anderson, handguns, using two tellers. at the tellers died One of shot them both. At his scene, other survived. and the jury convicted County, the trial in Lake murder,1 attempted 782.04(l)(a). § 1. Fla. Stat. murder,2 I. degree robbery
first with a fire- arm,3 of a firearm.4 The grand theft unanimously recommended A. to death for the
Anderson be sentenced
circumstances
led
murder,
judge, accepting
trial
capi-
Anderson’s arrest and conviction for
recommendation,
him ac-
jury’s
sentenced
1986, when,
go
age
tal murder
back to
cordingly.
eighteen, he entered Bethune-Cookman
Anderson seeks writ of habeas
Beach, Florida,
University Daytona
hop-
corpus
ground
attorneys
that his
ing
degree
psychology.
to obtain
His
right
denied him his
to the effective assis
performance
poor;
academic
after his
penalty phase
tance of counsel in the
of his
semester,
grades
first
drop-
started
case, in
violation
Sixth
Four
ping,
falling preci-
were
teenth Amendments
the United States
*4
pitously.
Specifically,
Constitution.5
Anderson ar
attorneys,
in
gues
preparing
that his
In addition to struggling academically,
penalty phase,
the
failed to conduct a rea
began
Anderson
to find himself in trouble
investigation
mitigating
sonable
into
evi
1991,
with the
law.
In December
and,
result,
a
dence
failed to discover
Anderson was convicted of
passing
and
to
present
mitigating
the
the
in
County
worthless check
Court of
investigation
evidence a reasonable
would
$85,
County,7
placed
Volusia
fined
on
that,
have disclosed. He claims
but for
probation for three months.
In March
failure,
such
there is a substantial proba
1992,
probation
reported
his
officer
bility that he would not have received a
court that
had
Anderson
violated
con-
death sentence. The United States Dis
probation
requested
ditions
trict Court for the Middle District of Flori
a warrant be issued for his arrest. A
da, agreeing
with the
Court of
issued,
following
hearing
warrant
Florida that Anderson’s claim lacked mer
1994,
April
held in
it,
County
Court sen-
application
denied his
for a
writ
jail
tenced
affirm
Anderson to
for seventeen
corpus.6
habeas
We
the District
ruling.
days.8
Court’s
Less than two months after he was
782.04(l)(a), 777.04(1),
§§
2.
appealability
ap
Id.
775.087.
Anderson
certificate of
to
peal
penalty
his claim
Florida's death
812.13(2)(a).
§
3.
Id.
light Apprendi
statute is unconstitutional
in
Jersey,
v. New
530 U.S.
120 S.Ct.
8.12.14(1),
(2)(c)(5).
§
4.
Id.
Anderson was
(2000).
released, he was convicted arrest at the resi- sion to serve the house passing counts of twenty-one Anderson, mother, Geneva dence of his $1,135.61, checks, totaling worthless Umatilla, consequence, As a Florida. Walmart, Walgreens, Depot, Home transferred to the Lake supervision was stores, pay resti- and was ordered other County probation office and to probation probation. years’ on one placed tution the condi- Kathy Carver. Under officer Control, Community tions of Anderson’s B. making resti- required to continue he was to Bethune-Cookman. payments tution convictions, to these point prior At some requirement, to this Anderson Pursuant working for Bethune- got joba outside of his moth- permitted work office. University’s admissions Cookman jobs ap- of which Carver er’s residence position, in this serving While Otherwise, Anderson was re- proved. in- payments tuition of two embezzled to his mother’s residence. stricted $4,750. amounting coming students — the con- comply failed to embezzlement, the this discovering Upon he Community Control when ditions of his actions University reported Anderson’s restitution make the scheduled failed to filed an informa- Attorney who the State stay in his mother’s resi- or to payments Court, County Circuit tion in the Volusia May working. On dence when was theft, a grand charging Anderson with *5 non- 20, 1998, Anderson’s reported Carver not felony. pled Anderson degree third County Lake Circuit to the compliance juryA found him stood trial. guilty and of his Court, the revocation requested 1994, and, in charged, September guilty as Control, recommended Community and him to five Court sentenced Circuit to the Proba- Anderson be committed which re- a condition of years’ probation, (“PRC”) in and Restitution Center tion make restitution to quired that he jail for eleven or to Pine Hills10 sentenced Anderson failed to University for its loss. twenty-nine days. Anderson and months re- payment with the schedule comply copy of Car- attorney received a and his however, condition, and on quired by this recommendation, and the report ver’s 1997, 1, revoked the Circuit Court April The hearing. a revocation court scheduled him under Com- probation placed re- at Anderson’s continued hearing was 6, January of in-house ar- munity form for Control—a and rescheduled quest, again delayed hearing a That was supervision of Volusia 1999. rest —under rescheduled request and was Anderson’s County officer.9 probation imposition of by the court and revocation Department of According to the Florida might imposed any which it sentence Corrections: community on placing the offender before Community of intensive Control is form Many community, supervision. of the offenders in the supervised house arrest control including community on weekends are placed surveillance control are who by with lim- holidays, officers administered prison diversions. pro- an individualized Corrections, It is ited caseloads. Annual Department of Florida of the offender gram in which the freedom 1997-1998, http://www. available at Report community, home within is restricted dc.state.fl.us/pub/annual/9798/stats/stat_cs. placement, and residential non-institutional html. imposed en- specified sanctions are probation, violation of As with forced. Orlando, Florida. Hills is a suburb 10. Pine may result in community condition control (the “USB”) 15,1999.11 Bank Monday, March United Southern for Scott, spoke secretary a loan with Johnnie hearing held as scheduled on was church, sang he who him knew with 15, appeared March and Anderson with in the choir. Anderson told Scott that he to counsel. After Carver testified organizing youth choir if and asked non-compliance condi- join she would like to him. He not did Control, Community tions of Circuit having mention to relocate to the PRC the placed Court ordered Anderson under following day. Community days, year Control for 529 one 19, Friday morning, On March Anderson at the beginning to be served PRC office, arriving went to Carver’s around following Friday, March 19. The court’s there, 10:30 a.m. Carver was but operated actions to terminate su- Carver’s spoke probation with another pervision; Anderson would thereafter be officer who was available. Anderson told supervised by County probation a Volusia this officer that he had been ordered to officer, Deborah Laso. report p.m. day to the 4:00 PRC Because Anderson was under travel re- failing to make restitution to Bethune- strictions and thus not authorized to travel University Cookman for funds he had em- PRC, permit. he a travel needed money bezzled and that he now had the Carver instructed him to meet her at her necessary satisfy to the obligation. Since morning, office Tavares the next March going pay University pick up permit. such a When the due, sums he wondered whether it would scheduled, gave two met Carver necessary report still be to the PRC. travel and instructed permit him report The officer told as ordered. him report Friday, to the PRC on morning, Later that sometime between p.m. March 19 4:00 noon, 11:00 a.m. and Anderson went to the USB branch in Mount Dora. Two tellers— C. Marisha and Lori Scott Weed —were on Thursday On March Anderson left duty. approached Weed and in- *6 his mother’s residence and went to the troduced himself as a student at Valencia friend, Kerry Cunningham, residence of a Community College.12 He said that he intending to steal a .22 caliber revolver interviewing part was bank officers as of a Cunningham in kept a locked shed assignment banking research on and finan- Cunningham behind his residence. was Scott, teller, operations. cial the head told there, but his brother-in-law was. Un- Anderson that if willing he would be to pretense wanting der the to use the wait, he speak manag- could with the bank shed, telephone, which in er, later, Twenty Allen Seabrook. minutes Cunningham’s Anderson convinced broth- Seabrook invited Anderson into his office er-in-law to let him into the shed and leave the two conversed for ten to fifteen where alone, him alone. Once Anderson stole the minutes. Their conversation pri- focused day, revolver. Later in marily Anderson a depositor opens on how and main- went to the Mount Dora branch tains bank account. Seabrook noticed Orlando, College 11. The does not the date record indicate Valencia is located in testified, hearing. the first revocation Carver Florida. The head of admissions the col- for substance, hearings that the two were con- lege testified at Anderson’s trial Anderson attorney tinued because Anderson and his had never been enrolled as student. having difficulty coordinating. were apprecia- were tokens of saying that eyes off of he took his that whenever meeting with lobby, arranging Sea- glance tion to Anderson day. to the surveil- He then asked previous focus shifted brook the desk. Other job on explain lance VCR Seabrook’s if would duties Scott she VCR, fixation with apparent teller, than this claiming that he needed the a bank Anderson however, thought that Seabrook complete to his research as- information normally. quite behaved and Anderson signment. agreed, Scott her for about an hour and spoke with in Mount trip to the USB Following his half, in the until there were no customers Bank Dora, the Colonial Anderson went to bank. attendant who He told the in Umatilla. a bank open wanted to him that he greeted a.m., min- about fifteen At around 11:45 to see was The officer he needed account. close, the bank was set to utes before to attendant asked Anderson
busy, so the that he was told the two tellers Anderson Monday. return get a business card to going to his car to afternoon, Friday At 2:30 on odd, The tellers found this give to them. Daytona Beach. Deborah Laso called the front door decided to lock and Scott money had the neces- He told her that he outside. Before she while Anderson was obligation to sary satisfy to his restitution however, door, could reach how he and asked Bethune-Cookman bank, Once inside the reentered the bank. payment. making the go should about he was one of the revolvers pointed that he would have Laso told Anderson togo and ordered her to carrying at Scott it; any about speak Kathy Carver any off alarms. setting the vault without event, to the PRC report he needed to station, at her teller’s ob- Young, standing failed to ordered. Anderson p.m. 4:00 in fear. apparently froze served this and PRC, however, and instead report to the house. to his mother’s went back the vault had to be doors inside Two locker the bank’s cash March while unlocked before Saturday morning, On accessed, went grocery out of the house so Scott behind his mother was could be keys removed a loaded .22 retrieved the shopping, Anderson the tellers’ stations this, dresser. When doing caliber revolver from her the doors. As she car returned, to borrow her he asked off again she not to set warned her her to the store.13 Armed with go keys, retrieving the alarms. After he had stolen revolver and the revolver doors, and Anderson unlocked the Scott shed, he Cunningham’s drove the cash locker. Young took her way Dora. On the branch Mount USB using then- the locker opened The tellers *7 purchased the and stopped he Walmart then or- Anderson assigned combinations. package a of donuts. orange juice and bag liner from to remove the dered them and fill in the vault the trashcan located arrived at the bank at about Anderson money. They complied: bag with the duty only personnel a.m. The 10:15 $71,618 in contained out the They cleaned Young and were two tellers —Heather locker, the placed of the cash top the half gave them the Scott. Anderson Marisha bag the to bag, gave money in the purchased, had juice and donuts he orange indi- record does not automobile. The using neighbor’s of an was a 13. Anderson’s mother possess transported to and from did not a valid himself automobile. Anderson cate how he license; license had been sus- in the text. driver’s indicated various locations the possession own or have pended. He did not Frustrated, him point, doing At this Anderson asked ed from so. he Anderson. ripped the tellers who wanted die first. Scott from mount at- VCR its begged him not to hurt them. tempted pull its cord from the wall. As this, doing bag he was holding he was a.m., min- approximately At 11:50 ten open, spilling money ripped and the utes the bank was scheduled to before two revolvers onto the office floor. close, Sherry Howard arrived the bank money Anderson retrieved all of the entering, children. After she with her two revolver,15 placed his mother’s which he “unusually noticed that the bank was nearby point, a trashcan. At this he heard lobby. dark” and that no one was in the moaning coming sounds from the vault. voice, coming She heard a woman’s surprised He went there and was to find vault, saying the direction of the “Please the two tellers still alive.16 recognized don’t. Please no.” Howard Scott, belonging the voice as with whom A 911 call to the police brought quick years she had worked for three at the response; two officers arrived at the scene Turning Eustis branch the USB. toward than They less two minutes. entered vault, appeared Howard what saw weapons the bank with drawn and ob- heavily standing just be built black man holding served Anderson VCR doorway. inside the vault His back was containing money trashcan and his Howard, facing away from and his arms mother’s revolver. The officers ordered were extended. Howard heard a woman’s drop everything. him to Anderson com- and two or gunshots. scream three She plied, identifying jani- himself as the bank children, immediately grabbed her left the asking tor and the officers not to shoot. bank, nearby grocery and ran to a store The officers handcuffed call police. building searched the for accomplices. As Anderson fired ten at point shots14 other officers entered the bank to assist range Young. blank at Scott and Seven area, securing the spontaneously Young; the shots struck two struck Scott. volunteered to one of them “I did it. I did put revolvers the trashcan by myself. by myself.” it I’m bag liner and went to Seabrook’s office. There, Paramedics arrived and attended to the eject he tried to the surveillance desk, severely two victims. tape Young from the VCR on was the more Seabrook’s security prevent- injured but feature of the VCR Despite two.17 the best alive, 14. Four shots were fired from his mother’s the tellers were struck them with the revolver and six shots were fired from Cun- large object. VCR or some other The VCR ningham's. dented, but it was unclear how the dent got there. Anderson told that after Cunningham’s slipped revolver had under coming he reentered the vault and saw blood desk, Seabrook's and Anderson did not re- neck, dropped from Scott's the VCR. trieve it. 17.The medical examiner testified that each of 16. The record is not clear as to what gunshot Young seven wounds sustained could Anderson did when he found the women still except have killed her for the wound caused Scott alive. testified that sometime after she shot, through a bullet that her chin went and out large object coming she saw a black *8 right eye. her One of the wounds had a towards her face. Both victims had head it, pattern gunpowder "tattooing” of around wounds. The State claimed that the most Anderson, likely which indicated that the shot was fired no cause of the wounds was that returning realizing away. after to the vault and than ten farther inches or so scene,18 committing robbery shooting the and the on the paramedics the efforts of way hospital. to the local she on the tellers.20 died wounds, gunshot only two
Scott suffered catastrophic. One of injuries her were but II. her neck and the had entered bullets cord, leaving para- 21, 1999, her spinal day struck her the following On March severely ability a limited to lyzed arrest, and with in the appeared Lake Through extraordinary ef- oxygen. intake Court, County Circuit was advised of his keep were able to paramedics forts the and, rights, being indigent, requested the was evacuated from the Scott alive as she The appointment ap- of counsel. court a transported helicopter to bank and the pointed Office of the Public Defender hospital in Orlando.19 for the Fifth Circuit of Florida.21 Judicial Two Public Defenders Assistant were from to was taken the bank placed charge of Anderson’s case —Wil- police the station. The nearby police there, and he to liam Stone and Clinton Doud.22 questioned him confessed Stone through survey required a tube Through victims’ them feed Scott's 18. an initial the mouth, throat, conditions, paramedics lungs. and into the determined down her her condition, injuries Young had the most severe with sev- Given Scott's had to do a two surgical eral head and shots to the cricthyrotomy shots to the vertical incision —a right eye torso. her a massive through windpipe Above was her into neck and Scott’s convulsing, spot damage, and was she lungs. tube into allow the her insertion injury. head At which indicated a severe this paramedics supply This Scott allowed point completely unable was to communi- oxygen helicopter she with the evacuation until gave absolutely paramedics cate and with the arrived. no she was their indication that aware of however, helicopter, While Scott in the very presence. a weak She had faint and again began oxygen. to suffer from lack paramedics pulse, and the could not carotid pink back into Her color faded from a bluish register pressure. reading of blood In an a state, slipped cyanotic into uncon- and she oxygen attempt funnel as much blood and paramedics on were sciousness. The board brain, possible heart and as to the oxygen lungs having difficulty getting into her Young’s suspended EMTs feet about a foot off chest, buildup pressure a in the due to ground bag ventilated her a Through proce- pneumothorax. known Young Despite valve these mask. efforts thoracentesis —where- dure known as needle complete ar- "coded”—went into cardiac by a into the chest above needle is inserted began paramedics rest —and the administer- pressure one of the ribs to relieve ing Shortly Young after coded—about CPR. paramedics lungs cavity were chest —the began EMT’s administer- minutes after the hospital. en route to able revive Scott ing team care—an ambulance arrived on the Young’s scene control of care. and assumed responses questioning, 20. In his to the initial paramedics Young These attached a cardi- that he went to bank to stated attempted to ac restart her heart monitor brochures see what look the bank’s drug atropine through the use of called offer, it that he did not know services had to sulphate drug epinephrine, called com- and a possession, why guns in his he had two monly Although they adrenaline. known as manager’s get he did office to not enter restarting Young’s initially were heart, successful VCR, that the reason VCR cord slipped quickly back into cardiac she ripped wall socket was from the because arrest. tripped on it. manage breathing 19. In an effort to Scott’s Circuit includes Lake 21. Fifth Judicial placed bag airway, valve mask was on her County. severity face for her. Given the to breathe however, quickly ap- injuries, her it became Mi- Originally, Public Defender parent paramedics on Assistant the scene assigned to Anderson’s necessary. chael McDermott was This endotracheal intubation *9 counsel, lead and naire to Anderson and asked that com- served as Anderson’s he chair. plete Doud served as second it and return it to Stone. Anderson instructed, answering every ques- did as later, days Nine on March tion. Appeal State Court—Collateral Rec- charged indicted and with the was ord, 7, at vol. 1098-1154. His answers to Young, attempted murder of Heather mur- questions long some were too to fit in the Scott, robbery der of Marisha armed space provided, so he attached several ad- USB, grand Cunningham’s and theft of pages Ques- ditional of information to the arraigned firearm. He on 1April tionnaire. Both Stone and Doud felt that guilty. of not pleas entered Questionnaire Anderson’s answers to the against The evidence Anderson was comprehensive were more and thorough overwhelming. security The bank’s cam- any they capi- than had ever in a received robbery, police eras had recorded the tal case. red-handed, caught had Anderson had confessed to both the rob- Questionnaire, On the Anderson denied bery shooting.23 and the It was therefore any history of child abuse. Asked to “de- obvious to Stone and Doud that Anderson scribe sexual among family behavior mem- guilty would found charged. be The bers,” Anderson answered “None.” Id. at hope could best for would be a sen- if thought 1102. Asked he he was abused tence life imprisonment for Heather child, neglected or as a an- Young’s murder. “No,” at swered id. and in another section listed that he was sixteen before A. sexually active, became at 1116. In a id. starting point As the in the defense asking section him to prob- underline team’s effort obtain information that would childhood, experienced lems during his persuade a not to recommend the “Sexually Anderson did not underline Mo- penalty, death Stone had Anderson answer lested,” Event,” “Traumatic or “Witness to battery questions posed in a question- Violence,” although he did underline “Ex- styled naire “Confidential Forensic As- Fears,” Prone,” treme “Accident and “Sick (the “Questionnaire”). sessment” The a Lot.” Id. 1130. questions focused on the back- defendant’s ground and were wide-ranging. Among Actually, Anderson’s answers areas, many questions inquired into Questionnaire painted relatively rosy pic- family, childhood, history defendant’s ture of his childhood. Asked to describe abuse, education, employment, drug child, his home environment as a he an- use, physical trauma, incidents of always swered that he “suppor[t]” received history. mental health parents from his and that “[t]here investigator question never of love.” Id. at 1102. the Public De- assigned summary fender’s Office Asked for a family to Anderson’s of his life as a case, Williams, Question- J.T. delivered the child he answered that he “had a normal Stone, along replaced by case but he was .22 caliber bullets found at the scene matched August September mother, Doud in 1999. the revolver Anderson stole from match, although perfect not a six of the Additionally, posi- Anderson’s hands tested .22 caliber bullets were consistent with the residue, gunshot tive for blood Cunning- revolver that Anderson took from positive clothes tested DNA. A Scott's ham's shed. weapons expert also testified that four of the *10 lucinations, blackouts, flashbacks or other an abused wasn’t “[he] childhood” effects,” Anderson answered “No.” adverse at 1106. Id child.” Id. at 1136. section, was asked In one Anderson’s answers to Stone evaluated relatives or close the deaths list of Anderson’s questions posed outside peo- the six Among Id. at friends. sev- Stone met with Anderson presence. Green was Michael Anderson listed ple times, point during and at no those who eral as a cousin Anderson described whom divulge any infor- meetings The did Anderson tumor. Id. from a brain had died abuse, history of sexual mation about a him to describe also asked Questionnaire use, that differed drug or head trauma may have had the listed deaths the effect with, from, he sheet, or was inconsistent what gave he In an attached on him. completing Questionnaire. other disclosed the deaths of the description of how listed relatives he had friends and five com- prior three weeks About no at 1146-47. He made affected him. Id. trial, of Anderson’s Stone mencement in the attached to Michael Green reference appoint court to Dr. Elizabeth moved the sheet. evaluate Anderson.24 The McMahon to motion. Dr. McMahon granted an ex- court did not reveal Questionnaire with over thir- psychologist was a forensic drugs and alcohol. problem with tensive involve- experience, including beverages, ty years if consumed alcoholic Asked he than phase more penalty and ment “yes, past” Anderson answered cases. Stone briefed alcohol- 100 murder himself an that he did not consider case, asking if Dr. McMahon on “use[d] he ic. Id. at 1134-35. Asked .. n .in the eye to- Anderson with an her to evaluate past,” drugs or ha[d] mitigating evidence. developing “in the ward and underlined answered ‘Yes” asked for the at 1136. When past.” Id. on met with Anderson Dr. McMahon use, answered history of his to a total of amounting occasions four Id. “Marijuana occasionally.” — During thirteen this time hours. about neuropsychological full conducted a Questionnaire disclosed no she Finally, the the sessions with screening, which included to list head trauma. Asked evidence of comprehen- the results of a Anderson and for mental distur- hospitalizations “all In battery psychological tests.25 in- sive bance, and head neurological problems Anderson, and in an ef- the sessions “None.” Id. juries” Anderson answered evidence to counter fort to obtain “None” when 1126. He also answered murder Young’s Heather claim that contacts for the State’s outpatient to list all asked tried to Dr. McMahon premeditated, if suffered hal- was Id. Asked he “ever same. n (WAIS-R), Wis- having Intelligence Scale-Revised deliberately delayed Dr. 24. Stone Test, Multi- Sorting had assembled Minnesota. appointed until he Card McMahon consin (MMPI-2), anticipated background Inventoiy-2 all the information Personality phasic perform her evaluation. Blot, would need to she Memory Assessment Rorschach Ink things, would Among Dr. McMahon other Test, Scales, Making Stroop Trail Color Word deposi- transcript Marisha Scott’s need a tion, which, Question- B, Personality Disorder Tests A and severity of Scott’s due to Test, naire-Revised, Drawings Projective injuries, taken until two and one- could not be Assessment, Test, and a Competency Hand prior the trial. half weeks Rights State Court— Assessment. Miranda Record, Appeal vol. at 1034. Collateral following tests 25. McMahon administered Wechsler Adult September 6 and 2000: anything They get strategy. Anderson to remember decided not to attack the might precipitated shooting. He overwhelming guilt evidence of the State shooting, told her that he could recall the introducing, reasoning would be that such why guns off. Based on but went if strategy would be ineffective not coun- *11 her sessions with Anderson and the results Instead, terproductive. plan their of at- administered, Dr. of the tests she had tack would be to “humanize” Anderson. that was McMahon concluded They guilt phase use the would the trial suffering great anxiety from a deal of penalty phase, as an “extension” of the and causing memory could be which loss. phases in both would do their best recommendation, On her Stone obtained portray way Anderson in a that would appointment Jacqueline the court of Dr. generate the maximum amount of sympa- Whitmore, a in psychologist specializing thy hopefully for him and persuade the that, hypnotism, hope hypno- in the under jury not to a recommend death sentence. sis, Anderson would reveal further details thought may Stone that a life sentence be place about what took the after ordered possible if he and Doud could convince the tellers into the bank’s vault. Anderson premeditat- that the was not murder hypnotized nothing was but revealed more against presenting ed.27 Counsel decided attorneys than what he had told his and evidence of Anderson’s occasional use of Dr. McMahon. marijuana alcohol past poten- and mitigation,
In tial meeting believing addition to with Anderson that such evidence a administering battery psychologi- likely helpful. and would be more harmful than tests, reviewed, cal Dr. among McMahon B. items, “discovery compiled
other material State, by by statements made the de- 25, began The trial September 2000. police, fendant to the depositions of Cate- In guilt phase, the State established gory ‘A’ (including videotape witnesses general narrative recited above. The records, deposition), [Scott’s] school and only testify witness to for the defense was by letters written and received the defen- testimony, Anderson himself. In his dant since his arrest.” State Court —Col- Anderson admitted committing the rob- Record, Appeal lateral vol. at 1034. bery shooting the tellers. He ex- information, Based on this Dr. McMahon plained gone plan- that he had to the bank concluded that there was no evidence of ning money to steal the he needed to take anything “that would serve as either statu- mother, care of his a disabled cancer sur- tory non-statutory mitigation factors be- vivor, shooting but that the tellers was not fore the respect Court with to sentenc- part of plan. taking He remembered ing.” Id. firing the tellers to the bank’s vault and shots, gun three but he said the went off report
Based on Dr. McMahon’s Questionnaire, accidentally.28 asking Anderson’s on the He denied tell- answers attorneys Anderson’s finalized their trial ers which one wanted to die first. cold, report 26. Dr. McMahon’s to Stone was dated murder "was committed gave calculated, October 2000. Dr. McMahon Stone premeditated manner without report precisely a verbal the same infor- any pretense legal justification.” moral or earlier, prior mation to the commencement of 921.141(5)(i). § Fla. Stat. See trial. Anderson’s cross-examination, 28.On in order to under- thought jury finding 27. Stone shooting cut Anderson’s assertion that Anderson never intended a murder to occur accidental, empha- counsel for the State aggravating would eliminate the circumstance cross-examination, spent also neighbor- the State time Anderson’s demon- On trying identify hood that nei- had a clear recollec- witnesses that Anderson strated ther nor his men- place in mother had many that took tion of events potential tioned. of the witnesses ordering Some He the tell- vault. remembered get were in- trashcan, interviewed reluctant to get bag the liner out ers volved; four, including pastor at least the two tellers were he recalled where church, refused to simply he fired the the vault before positioned testify. anyone decided to call Counsel not firing He also three shots. remembered they thought might prejudice Anderson’s ten, shots, repeated what he had case. gun on direct examination: said why
went off accident. When asked penalty phase State’s case in the him,” “blanking out on the details were began informing brief. The State *12 responded “[fit’s Anderson that not blank- jury the that it was seeking a death sen- out, just it’s it’s for ing been how been ag- tence recommendation based on four Court—Trial eighteen months.” State (1) gravating circumstances: Heather vol. 2140. Transcript, cold, Young’s was and murder calculated (2) premeditated;29 the was com- murder 3, 2000, jury the convicted On October (3) mitted pecuniary gain;30 for Anderson first-degree of murder of having the murder been committed after Young, attempted murder of Heather felony convicted of a and while under Com- Scott, robbery bank of the Marisha armed (4) Control;31 munity and been he had USB, grand Cunningham’s and of theft felony attempt- of a violent convicted revolver —the ed murder of Marisha Scott.32 penalty phase began of the trial on The presented After pointing evidence 5, 2000, day. October and lasted one guilt phase, which the State said went great Anderson’s defense team to aggravating established the circumstances lengths pres- to find witnesses who could it was called two relying upon, State First, mitigating testimony. ent witnesses, Young’s boy- long-time Heather separately prepared and his mother a list friend, Curbow,33 her David and brother Doud, potential Stone and witnesses. Young’s Both Young. Robert testified help investigator, their with upbeat nature and zest for life. Williams, to contact inter- attempted and every person view on these lists. Some of The of the testi- defense’s case consisted mony leads other provided including these interviews of ten witnesses Anderson. friends, witnesses, witnesses, mostly family were then con- The testi- potential who for they tacted and The team fied that had known Anderson interviewed. defense revolver, prior firing Cunningham’s ''[cjontemporaneous to sen- sized that convictions pull previous one had to back the hammer before each tencing qualify as convictions of can trig- and that mother’s revolver had shot his felony may aggravating violent be used as ger pull pounds. one-half seventeen and State, Wasko v. So.2d factors.” (Fla. 1987). (5)(i). § 29. Fla. Stat. 921.141 Curbow, 33.Young’s boyfriend, testified 921.141(5)(f). David § 30. Id. married, Young that while he were 921.141(5)(a). § 31. Id. themselves to be husband considered wife. 921(5)(b). Although § attempted Id. part of murder of Scott was the same Marisha robbery Young, as the murder of Heather find, jury assigning vary- of time and that he was a had asked the lengthy periods church-going, helpful member of the com- ing degrees importance “weight” or munity person’s came to a aid who often (1) felony, each: Heather being compen- without asked and without murder, Young’s a homicide and former employ- sation. One of Anderson’s cold, calculated, in a pre- committed ers testified that he had been model any pretense meditated manner without employee. mother testified legal justification (great weight); moral or that he was a wonderful child who had (2) capital felony was committed immensely her helped her health de- (moderate (3) pecuniary gain weight); clined. He was never abused as a child capital felony that the was committed anger. quick and was never person previously felony convicted of a high testified school extracurric- about imprisonment placed under sentence of ular and his extensive involve- activities Community felony proba- or on Control church, including perform- ment (little tion weight); and ing youth role in leadership numerous previous defendant was convicted of a vio- group events. felony, attempted lent murder of Mari- penalty phase case concluded (great weight). sha Scott with a unanimous recommendation that Anderson the death penalty.34 receive statutory The court mitigating found no *13 circumstances,35 nonstatutory and ten miti- 11, 2001, court, January following
On the circumstances, gating again assigning a recommendation, jury’s the sentenced separate degree importance weight Anderson to death. The court found the aggravating sentencing four circumstances the State each.36 After Anderson 921.141(2), (c) § participant 34. Pursuant to Fla. Stat. the The victim was a in the de- jury following responsi- was tasked with the conduct fendant’s or consented to the act. (d) bility: accomplice The defendant was an in the capital felony by person committed another evidence, hearing jury After all the the shall participation relatively and his or her was advisory deliberate and an render sentence minor. court, upon following the based the mat- (e) The defendant under acted extreme du- ters: ress or under the substantial domination of (a) aggravating Whether sufficient circum- person. another stances exist ... (f) capacity appre- The of the defendant to (b) mitigating Whether sufficient circum- criminality ciate the of his or her conduct outweigh aggrava- stances exist which the or to conform his or her conduct to the exist; ting circumstances found to and requirements substantially lawof im- (c) considerations, Based on these whether paired. the defendant should be sentenced to life (g) age The of the defendant at the time of imprisonment or death. the crime. jury The court instructed the that in order to (h) The existence of other factors in the imposition recommend the aof death sen- background defendant’s that would miti- tence, it had to find the existence of at least gate against imposition penal- of the death aggravating beyond one factor a reasonable ty- doubt. non-statutoiy mitigating 36.The 10 circum- 921.141(6), § 35. Under Fla. Stat. (1) (moder- stances were remorse for conduct Mitigating (2) weight); cooperation [are]: circumstances ate law with en- (a) (some (3) significant history weight); strong religious The defendant has no forcement prior activity. criminal faith and in church activities involvement (b) (substantial (4) capital felony weight); strong community The was committed while (moderate (5) weight); loving the defendant was under the influence of involvement re- (little (6) lationship family weight); extreme mental or emotional disturbance. em-
895
County
murder,
to the Lake
Circuit Court
court
turned
the
death for
Flori-
pursuant
collateral relief
seeking
imprisonment for
him to life
sentenced
Procedure 3.851. On
da Rule of Criminal
Scott, life
murder Marisha
attempted
18, 2005,
moved the
Anderson
March
robbing the bank with
for
imprisonment
and death
to vacate his convictions
court39
firearm,
imprisonment
years’
five
and
including the
grounds
on several
sentence
Cunningham’s revolver.
theft of
grand
claim that
appeal,
in this
one before us
assistance of coun-
he received ineffective
C.
of his case.
during
penalty phase
sel
convictions
appealed his
attorneys’ per-
that his
alleged
Supreme
to the Florida
sentence
death
to com-
during
phase
failed
formance
alternatively
Court,
a new trial or
seeking
Amendment standard
with the Sixth
port
impris
of life
imposition of a sentence
assistance of counsel estab-
for effective
Supreme
The
for the murder.37
onment
States
by
lished
the United
and af
rejected claims of error
Court
Washington Strickland
and death sentence.
firmed his convictions
prejudiced
failure
his defense.
this
State,
trial would have been different. Villalba, Dr. a psychiatrist board certi- psychiatry,41 fied in forensic testified A. from post-traumatic suffered evidentiary The Circuit Court held an stress disorder a as result of Michael hearing on Anderson’s motion from Janu- abuse, Green’s sexual as well as borderline ary presented to23 2006. Anderson personality opinion, disorder. In Villalba’s that, child, evidence he had been the Anderson was under the influence of ex- victim of Michael Green’s sexual abuse and treme mental and emotional disturbance at shooting place took shooting. the time post-trau- USB’s vault was caused his opinion Villalba based his on a four-hour disorder, matic personali- stress borderline Anderson, session review disorder, ty damage, brain effects Anderson’s videotaped interrogations drug of his chronic use. This evidence police, Personality Assessment came in the testimony form of from his (“PAI”).42 estimate, Inventory By his half cousin, Green, Raymond two mental of his conclusions were based on experts, Jorge health Drs. Villalba and self-reported symptoms Berland, Robert post-conviction whom the other half on the results of the PAI. counsel had retained to evaluate Anderson. Dr. Anderson also called Elizabeth McMa- Dr. history Villalba said that Anderson’s question hon to her about evaluation of childhood sexual abuse left him with performed she him prior to trial.40 post-traumatic stress disorder which Raymond spent Green testified that he him epi- caused to suffer from dissociative during time with Anderson their childhood sodes. ep- He described these dissociative since grandmother Green’s maternal lived isodes as a dream-like state “where one just across the street from the Andersons. things like are not feel[s] real.” State occasion, On spend would Record, Appeal Court—Collateral vol. at night with grandmother’s Green 1505. Although acknowledged Dr. Villalba home, sleeping with Green in his bedroom. many Anderson had taken deliberate steps preparation robbery, for the
Raymond Green, said that Michael opined that “the intense level of stress eight year uncle who was older than he was, during the actual committing of the rob- grandmother. lived with his When bery would be a Raymond only old, precipitating or contribut- years five Michael *15 ing factor to began forcing him the dissociation.” Id. at 1506. perform oral sex Dr. night. Michael’s bedroom at Villalba also stated that Anderson told When there, Anderson was Michael him that one of the would do the bank tellers closed the same thing According Ray- glass to him. vault door on his hand and one of mond, would, occasion, anally Michael may “stupid them have him a ... called 40.Anderson also called as witnesses Assistant 41. Dr. Villalba had been board certified for year. one Anderson's was the first Public Defenders William H. Stone and Clin- Doud, Williams, murder case in which he had been involved. Investigator ton L. J.T. Nelson, during Karen the bailiff who worked 42. Dr. Villalba testified that PAI is similar testimony his trial. Nelson's has no relevance try to the MMPI-2 but that he wanted to a test to the issues here. given that had not been to Anderson in the past. accident,44 informed Dr. Berland about Id. at 1532. ‘N’word.”43 racial derogatory responding it in to the he failed to mention might that this postulated Dr. Villalba inju- about head Questionnaire inquiries post-trau- of a the onset triggered ries. episode. disorder dissociative matic stress told Dr. Berland about mental Anderson cross-examination, Dr. ad- Villalba On problems that he had omitted from health typ- manipulative behavior was
mitted that Questionnaire, including that “for a personality ical for those with borderline experienced feeling long time [he had] that as Anderson’s disorder such places either people public that were make his an incentive to Anderson had talking him or about him as he watching than it actual- appear worse mental health and that he often heard voices passed” ly was. calling his name. Id. at 1558-59. Based Berland, psychologist Dr. a forensic and his self-reported symptoms on these testified twenty-seven years’ experience, Dr. McMahon admin- analysis of the tests psychotic from a Anderson suffered that istered,45 opined Dr. Berland in the bank’s vault such disturbance while damage Anderson suffered brain crimi- appreciate capacity that his or contributed” to a had “either caused or to conform his nality of his conduct in the bank’s vault. psychotic disturbance requirements of law conduct Id. at 1563. substantially impaired. Dr. Berland also testified that Anderson Anderson for a Dr. Berland met with marijuana abuse had a serious alcohol and no total of four hours and administered told Dr. Berland thát problem. Anderson own; relied, instead, on the tests of his “Break- group of a called the part he was she Dr. McMahon administered when tests morning, usually every that met fast Club” prior to trial. Based house, evaluated Cunningham’s Kerry at his friend analysis Anderson and his on his time with amounts of beer and copious to consume results, Dr. Berland of Dr. McMahon’s test marijuana. Dr. Berland met with Cun- meetings. that Anderson had suffered him these ningham concluded to ask about car accident the Breakfast injury Cunningham from a head-on denied brain existed, claiming that on the involved in ever that Anderson said he had been Club got together, rare occasion when two Although Anderson age twenty-two. at that for college. She described whether admitted to on cross-examination 43. When asked accident, following sup- days several reviewed the trial record for he had headaches, assertions, vomiting, and nausea and Villalba had port for either of these Dr. fact, memory problems would stare off support and that he there is no said he had not. In periods apparently space long of time Dur- the trial record for either assertion. into through noted looking right her. She also testimony evi- ing in the collateral attack things, angry become over little dentiary- hearing, that he would Stone testified problems, symptoms and dis- anything of vision never said about the show Anderson had lasted two or three play a hand tremor that calling stupid a racial slur even tellers him in contrast to This account stands directly about months. though Stone had asked him portrayed testimony trial which her provocation looking for evidence of this sort. quick always healthy and never *16 anger. investigator confirmed Berland’s 44. Dr. episode by description of the in- Anderson’s car, primarily conclusion Marty 45.Dr. Berland based his terviewing passenger from McMahon obtained the results Dr. thereafter asked on Kirens. Dr. Berland WAIS-R she adminis- MMPI-2 and the the accident. She Anderson’s mother about prior to trial. to Anderson Anderson had been tered that it occurred after said part of rebuttal to Anderson’s they merely beer. Dr. Berland ad- As its drank State, mitted, on cross-examination claim, ineffective assistance of counsel incen- “pretty strong had a McClaren,49 Harry called Dr. whom State him, and that Anderson tive” to mislead employed response the State history deceiving and had “a substantial claims of Anderson’s Rule 3.851 motion. misleading people over the course of his preparing Dr. testified that in McClaren at 1618-19. life.” Id. evidentiary hearing, for the he conducted called Dr. McMahon to ex- investigation into an exhaustive Anderson’s battery plain per- of tests she had began by interviewing mental health. He trial and prior formed on Anderson the Anderson twice. He thereafter inter- conclusions she had reached. On cross- officers, police viewed several Anderson’s State, by the Dr. McMahon examination mother, Kerry attorneys, trial Anderson’s was asked about the conclusions reached Cunningham, Dr. In and McMahon. addi- by Drs. Villalba and Berland. She stated tion, transcripts he read the and viewed that, taking even into account the informa- videotape police interrogations provided tion Anderson to Drs. Villalba also read the transcript Anderson. He her, not to she saw noth- and Berland but trial, of Anderson’s the briefs filed in his suggest had ing that Anderson brain direct to the Florida appeal damage46 personality and borderline disor- decision, Court and court’s der or that his actions at the bank were records, high college school and his medi- by post-traumatic caused stress disorder records, records, history cal his criminal being sexually abused as child.48 reports. and Drs. Villalba’s and Berland’s that, Dr. McMahon also testified while she Furthermore, Anderson, interviewing after had been retained to evaluate Anderson battery he had take a full typical, closer to his trial date than is she psychological analyzed tests50 and the re- adequate thoroughly had time to evaluate mental health. sults of those tests. inap- larity. 46. Dr. McMahon felt that Dr. Berland So unless can show me [Anderson] propriately interpreted the results she had similarity being some between in that bank obtained from the MMPI-2 that she adminis- cousin, being vault and molested I’ve opinion, tered to In her all of the Anderson. PTSD, got say may that he [but results of that test were within normal limits showing there would have to be some of] only anxiety psy- reflected rather than a way being what ... in the bank vault re- chosis. minded him of some interaction with his pertinent. it cousin for to be 47. Dr. McMahon if Anderson reasoned Record, Appeal State Court —Collateral vol. disorder, personality suffered from borderline 10, at 1644. the disorder would have been revealed in the MMPI-2 and WAIS-R tests. Based her 49. Dr. McClaren had been involved in hun- results, however, analysis of these tests' cases, working dreds of at the behest Moreover, nothing disorder was not shown. prosecution of both the and the defense. in Anderson's Rorschach test results indicated that he had the disorder. MMPI-2; prescribed 50. McClaren an McMahon, According to Dr. Intelligence Wechsler Adult Scale—Third Edi- something PTSD ... occurs when that’s (WAIS-3); Incomplete tion a Rotter Sen- happening in the here and now is reflective (RISB); tences Blank and a Millón Clinical brings memory hap- of or forth of what (MCMI- Inventory-Third Multiaxial Edition pened past. Obviously people 3). in war time when a car backfires sounds it gun firing. got like a There's to be a simi- *17 trial, to he found McClaren, year prior in months to a nothing Dr. According to in evaluation of nothing him to conclude that Dr. McMahon’s led investigation his incom- post-traumat- Anderson that could be considered damage, brain Anderson had disorder, personality- any way. in plete borderline ic stress epi- disorder, psychotic experienced Dr. McClaren in vault. the bank’s
sode B. in the inconsistencies suggested that also 24, 2007, an at- might reflect January Anderson’s stories Circuit Court On the court. by Anderson to mislead in full claims tempt denying an order issued suggestion, Dr. McClaren making In this Rule mo- presented in his 3.851 (Fla. record of Anderson, Anderson’s “track emphasized No. 99-572 tion. State Dr. also noted Cir.Ct.). McClaren deception.”51 The court found no merit 5th strong had motivation that Anderson attorneys’ per- claim that his Anderson’s shots, only three that he fired remember mitigating evidence seeking formance that he remembered if he testified because constitu- presentation for to the ten, consciously used all it would mean he deficient. The court noted tionally revolvers, an would indicate which both attorneys preparing took in for steps the motivation, execution-style This murder. emphasiz- penalty phase of the case— McClaren, may to Dr. also according (1) psy- a forensic ing they employed failure to the reason for Anderson’s been McMahon, chologist, Dr. evaluate the tellers wants asking “[w]ho remember and if provide, mental health Anderson’s to die first?” for possible, explanation an bank; they inter- at the conduct coun- by collateral
On cross-examination
potential
numerous
witnesses
viewed the
sel,
that he
acknowledged
Dr. McClaren
to the
response
in Anderson’s
identified
anxiety
an
diagnosed
had
Anderson with
that he and
Questionnaire and on the lists
stress
post-traumatic
and that
disorder
Turning to the
prepared.
mother had
his
anxiety
a form of
disorder.
disorder was
the sexual
attorneys’
discover
failure
that he saw no
He nevertheless maintained
experienced at the hands
abuse Anderson
between the sexual
link or connection
Green,
that coun-
the court said
of Michael
as a child
Anderson had suffered
abuse
expected to
been]
not [have
had
at the
sel “should
shooting
and the
committed
sexual
incidents of
investigate potential
about the short inter-
When asked
bank.
suggest
did not
[Anderson]
abuse when
appointment
Dr. McMahon’s
val between
actually
(to
Anderson)
trial,
occurred and
con-
Dr.
abuse had
and the
evaluate
and the
from Counsel
mental
cealed the abuse
although
McClaren stated
in the case.”
expert
health
involved
normally
place six mental
takes
health evaluation
balance of
he had obtained the
explained
officers that
this "track
51. Dr. McClaren
he owed Bethune-Cookman
the restitution
Anderson’s embezzlement
record” included
not,
orange
Bethune-Cookman,
purchase
his
history
when he had
of writ-
his
from
you
checks,
supposed thank
juice
donuts as a
misrepresentations
to his
ing bad
his
time,
representation his
college
the bank tellers'
graduating mother about
janitor,
arresting
he was the
officers that
county, his de-
legal problems in Volusia
testimony
between
the conflict
history
responding
nying a
sex abuse
Questionnaire,
Cunningham
the extent
Kerry
about
his inconsistent statements
Club,
at the Breakfast
abuse
professionals
his substance
mental health
to the different
during police
him,
his inconsistent statements
at the USB
his claim
who evaluated
Ap-
interrogation.
State Court —Collateral
Community
Valencia
that he was a student at
Record,
11, at 2024.
peal
vol.
probation
College,
representations
*18
prior
C.
Anderson had been convicted of
felony,
‘among
which “are
the
violent
appealed the Circuit Court’s
”
weightiest
aggravators.’
Id. at 510
Supreme
decision to the
Court of Florida.
State,
(quoting Deparvine v.
995 So.2d
(Fla.2009).
State,
Anderson v.
Addressing
point,
perform
Anderson’s first
time to
the task she undertook.
Florida
Court found counsel’s
Id. at 511 She met with Anderson on four
occasions,
failure to
the sexual
separate
gave
neurop-
uncover
abuse under-
him a full
and, moreover, excusable,
tests,
standable
“in sychological screening
battery
large part
ample
because Anderson himself was a
and had
time to evaluate the screen-
discovery
ing
conjunction
barrier
of this evi-
and the
test results
dence.”52 Id. at 509.
empha-
The court
what she observed in her sessions with
Questionnaire
sized
counsel had Anderson.
nothing
Id. She found
to ex-
fill
facially quite
plain why
out was
thor-
Anderson shot the tellers. Drs.
Anderson,
ough
responding
and that
to Villalba and Berland found that the shoot-
abuse,
questions
ing
its several
about sexual
was caused Anderson’s mental defi-
explicitly
having
had
denied
damage
psychot-
suffered
ciencies—a brain
induced
disturbance,
concluding
such abuse.
In
that Anderson
ic
or
episode
a dissociative
had failed to
prej-
by post-traumatic
demonstrate Strickland
caused
stress disorder
udice,
abuse,
pointed
the court
to the Circuit
caused Michael Green’s sexual
findings
aggravating
Court’s
of four
deficiency.
cir-
other mental or emotional
cumstances, including that the
Dr.
In
disagreed.
murder was
McMahon
the court’s
cool, calm,
mind,
premeditated
fact
that Anderson has subse-
“[t]he
conclusion,
harmful,
reaching
In
this
the court
fruitless or even
counsel’s failure to
pointed
language
pursue
investigations may
to Strickland’s
that "when a
those
not later be
given
challenged
defendant has
reason to believe
counsel
as unreasonable.”
466 U.S. at
pursuing
investigations
certain
would be
Anderson’s
status.”
attorneys’ performance
claim that his
dur-
argument,
Assuming,
sake of
penalty phase
the
failed
ing
of his case
did not
preparation
counsel’s mental health
*2-
performance
Strickland’s
test.
Id. at
up
performance
measure
to Strickland’s
Court,
Supreme
4. Like the
the District
standard,
Supreme
the
concluded
Court
noted that
failure to find
Court
counsel’s
had
that Anderson
not shown Strickland
out about the Michael
sexual abuse
Green
that the
emphasized
The court
prejudice.
himself,
caused
in that
evidentiary hearing
revealed
record
repeatedly
having
any
denied
suffered
different
as to
strikingly
expert opinions
at
such abuse.
Id.
*3. And counsel’s em-
mental
the time he
Anderson’s
health at
Dr.
ployment of
McMahon three weeks
bank
the of-
entered the
and committed
prior to trial did not
her from
preclude
charged.
for which he
Id. at
fenses
conducting
thorough
evaluation into
“Considering
overwhelming
evi-
damage
whether he had brain
or a mental
establishing
aggravating
dence
circum-
might
mitigated
illness that
be-
re-
opinions
stances and
inconclusive
at *4.
havior.
Id.
The District Court was
health,
garding Anderson’s mental
as
impressed
Supreme
as
the Florida
court’s confidence
the outcome [was]
Dr.
was with
McMahon’s
Court
extensive
undermined.” Id.
and,
experience
with the
particular,
of
thoroughness
IV.
her
evaluation
Anderson,
conducting
which
ses-
included
14, 2009,
peti-
On October
occasions, giv-
on multiple
sions with him
tioned the United
District Court for
States
full
ing
battery
psychological
him a
District
a writ of
the Middle
of Florida for
tests,
reviewing the evidence the State
corpus pursuant
habeas
to 28 U.S.C.
seeking
present
jury,
would
§
presenting seventeen claims for
explanation
mental health
for his behavior
Sec’y,
Dep’t
relief. Anderson v.
Fla.
especially
at the
in the vault when
Corr.,
09-450,
No.
A. Hall, 1162, F.3d v. 527 facts.” Newland Williams, (11th Cir.2008); see also cor- 1197 In for a writ of habeas petition (“[T]he 390, at 1511 at 120 S.Ct. that the Florida 529 U.S. alleged pus, square- claim are ] merits of Williams unreasonably applied [the Supreme Court Court’s, whether the Florida is to determine Court reached its de- 55. Because the District controlling United misapplied same record now cision on a cold record —the precedent. See 28 Supreme Court de States review its decision before this court —we 2254(d)(1). Thus, task, § U.S.C. our like District novo. 904 (11th Corr., Cir.2007), 1193, v. 476 F.3d 1209 holding our Strickland
ly governed
“
522,
strong presumption’
539 U.S. at
contains
‘a
Washington.”)-, Wiggins,
(“In highlighting coun-
905
he
more forth-
in have believed that would be
disagree. We do so
claim. We
his
of
time and
coming
given
space
if
to answer
multiple
Anderson’s
because of
large part
from
of
sexually
questions,
pressures
free
abused.
been
having
denials
(“In
verbally
presence.
them
in their
Newland,
evaluating
answering
at 1202
527 F.3d
out,
facially
it
com-
attorney’s As
turned
a defense
reasonableness of
thorough
ques-
to the
heavily
plete
infor-
answers
weigh
we
investigation,
defendant.”);
may
posed
tions
indicated
he indeed
see
provided by the
mation
(“The
Chandler,
the time and
having
at 1324
benefitted
F.3d
also
acts,
reading
After
his an-
space
respond.
a trial counsel’s
reasonableness
swers,
...,
attorneys remarked
investigation
de-
including lack of
thorough
answers
the most
and com-
information the
were
critically
what
pends
upon
(internal
seen.
plete they had ever
to counsel.”
client communicated
omitted)).
attorney
“An
marks
quotation
Second,
suggests
an-
Anderson
that his
render ineffective assistance
does not
coun-
flags” requiring
swers
“red
created
develop
failing to discover and
evidence
into
he had
inquire
sel to
further
whether
client
not
abuse that his
does
childhood
an-
as a child. He cites his
been abused
Head,
to him.”
mention
Williams
Ques-
specific
swers to
sections of the
two
Cir.1999);
(11th
1223, 1237
see also
F.3d
(1)
how
in the section that asked
tionnaire:
(“Given [peti-
at 1245
Henyard,
F.3d
he
any
and friend
deaths of
relative
any
multiple
history
denials
tioner’s]
him,
included
had listed affected
counsel’s extensive
abuse and trial
sexual
every
person he
description
single
mitigation
diligent efforts to build
Green; and
had
than Michael
listed other
case,
Court’s deter-
the Florida
the section
asked
perform
not
defi-
mination that counsel did
he
problems
experienced
underline
‘contrary
neither
ciently
regard
in this
child,
experienced
that he
he indicated
of,
to,’
application’
‘an
nor
unreasonable
Prone,”
Fears,” was “Accident
“Extreme
prece-
States
United
see
got
a Lot.” Id. at 31-32. We
“Sick
dent.”).
flags”
no “red
here.
not
failed to mention
only
hindsight
perspec
from our
Removing
abuse,
actively
of sexual
denied
instance
tive,
attor
how a
we consider
reasonable
Ques-
responses
abuse
such
to these answers—
ney
have reacted
would
dispute
Anderson does
tionnaire.
thorough,
be
appeared
answers that
argues that coun-
explicit denials but
these
by a
complete,
prepared
person
*23
in failing to
were nonetheless deficient
sel
every
truthful. A reasonable
to be
reason
(1)
two
the abuse for
discover
reasons —
necessarily
not
assume
attorney would
Questionnaire
not
left the
they should
have
to
the ef
failure
describe
Anderson’s
him to answer its
expected
him and
himon
death had
fect Michael Green’s
privately, without
their assis-
questions
withholding evidence
signaled
he was
tance;
have
they
inquired
should
with Green.
relationship
of a troubled
in
flags”
into the “red
contained
further
he
problems
Similarly, his mention
Pet’r’s Br.
questions..
answers
would not
during childhood
encountered
persuaded.
at 30-32. We are not
attorney to
necessarily lead
reasonable
history of
hiding
he was
First,
assume that
it was
unreasonable for coun-
Sec’y, Fla.
See Puiatti v.
sexual abuse.
Anderson would be
sel to assume that
(11th
Corr.,
1255,
732 F.3d
Dep’t
forthcoming
answering
in
truthful
Cir.2013) (“Trial
faulted
counsel cannot be
presented.
may
Counsel
well
questions
—
Pinholster,
failing
history
U.S.-,
for
to link [the defendant’s]
131 S.Ct.
of drug abuse with an otherwise-undis-
(2011),
ing
performance
counsel’s
in those cases
Commentary for Guideline 11.4.2 of the
and set out in the ABA Guidelines com-
1989 ABA Guidelines for the Appointment
pare to
professional
the standards of
com-
and Performance of Defense Counsel in
petence
prevailing
Florida
courts
Penalty
Death
Cases.56 Pet’r’s Br. at 30.
Instead,
time of his trial.
implies
The relevant portion
these four cases
reads:
and the ABA Guidelines
establish a national
profession-
standard of
One hurried interview with the client
competence
al
in capital cases.
will not reveal to counsel all the facts
The Supreme
explicitly reject-
Court has
prepare
counsel needs
order to
for a
implication.
Hook,
ed such an
In Van
trial,
appeal,
postconviction
or
re-
Court reversed the
per
Sixth Circuit
cu-
view----Any
part
reluctance on the
riam
erroneously
substituting the ABA
the client to disclose needed information
local,
Guidelines for
contemporaneous pro-
overcome,
must be
quick
easy
not a
fessional norms:
profes-
“Restatements of
task.
standards,
sional
we
recognized,
can
Ass’n,
Am. Bar
Guidelines for the Appoint-
be
‘guides’
useful as
to what reasonable-
ment and Performance of
entails,
Defense Counsel
ness
only
but
the extent
Penalty
Death
guideline
describe the
Cases
11.4.2
professional norms prevailing
(1989),
representation
when the
cmt.
place.”
took
available at http://ambar.org/
U.S. at
56. Guideline
which deals with client
Am. Bar
Appoint-
Guidelines for the
contact, provides as follows:
ment and Performance of Defense Counsel in
(1989),
Trial counsel should
Penalty
guideline
maintain close contact
Death
Cases
11.4.2
throughout preparation
with the client
of
http://ambar.org/1989Guidelines.
available at
the
discussing
investigation,
case
...
the
potential legal
develop,
issues that exist or
development
theory.
the
of a defense
in
dispute
no
that
beyond There was
real
that case
attorneys went well
Anderson’s
had
counsel
been ineffective:
the same
pre-
in
hurried interview”
conducting “one
judge who sentenced Williams also found
the case.
phase of
penalty
for the
paring
counsel’s
defi-
performance
that
had been
to
having
respond
to
In addition
Williams,
cient,
370,
at
529 U.S.
120 S.Ct.
they conducted several
Questionnaire,
the
1501,
Virginia
Court
at
the
a host of
with Anderson and
interviews
“assumed,
trial
deciding,
without
that
witnesses,
Dr.
retained
mitigation
potential
371,
had
defective.” Id. at
counsel
been
psychological
a
eval-
perform
to
McMahon
instead,
was,
at
120 S.Ct.
1501. Williams
a
uation,
psychologist
utilized
and even
prejudice
a case about
the
element
to
in an effort
hypnotism
specializing
Strickland;
Virginia
the
mitigating circumstances
uncover
misinterpreted
to
Lockhart
was held
to
the death
forego
lead the
might
838,
Fretwell,
364,
506 U.S.
113 S.Ct.
professional
This kind of
behav-
penalty.
(1993), in dealing
122 L.Ed.2d
thorough
exactly
type
the
represents
ior
Williams,
prong.
prejudice
Strickland’s
counsel should con-
investigation capital
391-95,
at
Id. at
909 Rather, Head, tutionally required. F.3d had 311 Anderson also Crawford Cir.2002) (11th attorneys typically show that retained grounding (partially experts mental health within six-month “strength in the prejudice no finding its a one-year time frame because failure to defendant’s] both of [the evidence so render thorough do would a and effec- circum- aggravating guilt and tive He unlikely. evaluation made no such stances”).
showing. contrary, sug- To the the record C. gests attorneys gave that Dr. Anderson’s adequate McMahon time evaluate aspect The second of Anderson’s She saw Anderson on sep- Anderson. four that at ineffective assistance claim is arate occasions for a total of hours thirteen provided Dr. torneys have McMa should thorough neuropsycholog- a conducted background with time infor hon screening. gave ical him She also a com- adequate mation needed to conduct an she plete battery of In psychological tests. Had done mental health evaluation. short, Dr. McMahon testified that she had this, contends, would have Anderson she adequate time to fully evaluate Anderson. mitigating mental discovered the sort The Supreme accepted Florida Court her health Drs. Villalba Berland evidence testimony, and had a sufficient in the basis brief, argues found. In his Anderson that doing so. record for attorneys’ present mitigating failure to evi Berland dence like Drs. Villalba and found is that counsel point Anderson’s second prevailing professional fell norms below in failing to constitutionally were deficient (1) attorney a for two reasons: reasonable inform Dr. McMahon of extensive sexu- earlier; would retained Dr. McMahon have abuse, use, drug injuries al head attorney a reasonable would have by car caused accidents—information informed Dr. McMahon of Anderson’s his Ber- provided Anderson Drs. Villalba and abuse, use, tory drug of sexual and head Assuming land. was that information trauma. The District concluded Court credible, re- Supreme the Florida Court’s properly Florida jection point second Anderson’s this applied rejecting argu Strickland given Anderson’s nonetheless reasonable ment. abuse, use, explicit drug denials sexual injuries answering Ques- and head point heavily empha- first Stewart, tionnaire. See 476 F.3d at sizes Dr. that that McClaren’s statement (“The imposes no burden on Constitution begin experts typically mental health eval- a background to scour defendant’s counsel a uating a six months to defendant potential given [mitigating evidence] year trial. before Anderson contends contrary representa- defendant’s failure to to this com- counsel’s conform ”). tions .... practice mon Dr. McMahon un- rendered of the Michael able discover evidence Court’s alternative psy- Green abuse and of Anderson’s sexual provide failure to holding counsel’s —that chological illnesses. Dr. information McMahon with Drs. Villalba and Ber typical practice provided confuses a the outcome of the Merely land did not render constitutional norm. dem- constitutionally phase suspect— attorneys typically penalty retain onstrating Nothing rec reasonable. in the experts year mental months also health six suggests ord Dr. McMahon would not that the before trial does demonstrate thorough is more evalúa- practice Dr. McClaren described consti- conducted given denying tion had she been more time. Court Anderson a writ of habeas is, corpus accordingly, quarrel with her exami- does *27 nation of him or with the tests she chose AFFIRMED. Instead, argues
to administer.
he
that if
MARTIN,
Judge,
Circuit
concurring
Dr.
begun evaluating
McMahon had
him
only:
result
sooner “she would have been able to devel-
I agree with the Majority that the Dis-
op a
him that
rapport with
would have led
trict Court is due to be affirmed on its
to the disclosure of the horrific sexual
denial of Mr. Anderson’s claim that his
abuse
a
[he] endured as
child.” Pet’r’s Br.
trial counsel was
failing
ineffective for
nothing
at 40. This is
more than sheer
a
mitigation
conduct
reasonable
investiga-
speculation.
It falls far short of establish-
tion,
present
adequate
an
mitigation
ing a
probability
reasonable
that Dr.
cannot, however,
case.
I
agree with all of
McMahon would have
any
uncovered
addi-
Majority’s
the
reasoning,
I
sepa-
so write
evidence,
mitigation
tional
much less “that
rately.
aggravating
the balance of
and mitigating
begin,
To
the Majority
certainly
is
cor-
circumstances did not warrant death.”
rect
the Florida Supreme Court’s ad-
Strickland,
695,
tive 1160, Irey, 612 1207 v. F.3d United States and mental as the abuse as well sexual (11th Cir.2010) (en banc) (alteration in during presented the state health evidence Louisiana, original) (quoting Kennedy v. proceedings. postconviction 435, 128 2641, 2658, 407, 171 554 S.Ct. U.S. by the heightened (2008)). concerns are here My L.Ed.2d 525 Mr. evidence that mitigating fact that the Ma- Despite my reservations about (and failed to discover Anderson’s counsel agree I prejudice, do jority’s conclusion evidence that jury) includes present Majority’s conclusion that with the violently sexually Anderson was Mr. no de- finding of Florida Court’s years as child. abused for several to defer- ficient is entitled performance that Mr. Anderson de evidence was also court’s determination ence. “A state stress disorder and veloped post-traumatic habe- precludes federal a claim lacks merit aas result of other mental health issues could jurists as long as relief so fairminded horrific histo abuse. Mr. Anderson’s this of the state disagree on the correctness “is the kind of of child sexual abuse ry Richter, v. Harrington court’s decision.” history [Supreme] troubled 770, 786, -U.S.-,-, 178 131 S.Ct. assessing a defen has ‘declared relevant omit- (quotation marks L.Ed.2d 624 ” v. culpability.’ moral Johnson dant’s ted). said, trial I am That troubled (11th DOC, 907, 936 Cir. Sec’y, F.3d with questionnaire simply counsel left Smith, 2011) 539 U.S. (quoting Wiggins own, fill which Mr. out on his 2542, 2527, 156 L.Ed.2d 123 S.Ct. his back- aspects of inquired into sensitive (2003)). embarrassing, such ground might be sex abuse as abuse. Child Majority’s I child sexual agree do Neither a result of feel shame as the remoteness victims often categorical assertion that suffered, may be and therefore abuse abuse diminishes Mr. Anderson’s sexual a more sensi- reveal it without Mr. hesitant to weight mitigation. its But while this method inquiry. tive post- in the state court presented evidence that should investigation is not a method cases, Major- encouraged for future
be ways in
ity correctly sets out the which background a thorough
counsel conducted
investigation presented a substantial mitigation Mr. Anderson’s trial.
case
Thus, adjudi- the Florida Court’s performance
cation counsel’s
objectively unreasonable. *29 America,
UNITED STATES of
Plaintiff-Appellee, Rodriguez, ESQUENAZI,
Joel Carlos
Defendants-Appellants.
No. 11-15331. Appeals,
United States Court of
Eleventh Circuit.
May