*3 Before EDMONDSON, Chief Judge, and CARNES HULL, Circuit Judges. HULL, Circuit Judge: L. Johnny Robinson appeals the denial § of his 2254 petition challenging his death sentence. After review and oral argu- ment, we affirm.
I. BACKGROUND During Robinson was convicted in the Circuit Court of St. Johns County, Id. relief. mandate necessary dice murder, kidnap first-degree Florida battery sexual robbery armed ping, sentenced George, Beverly petition, § 2254 filed then direct On conviction. murder on the death This denied. court the district re Court review, appealability certificate granted Court v. sentence. death versed ineffec- received whether as to (“Robinson (Fla.1988) State, So.2d resen- of counsel assistance tive I”) claim crux tencing. investigate failed counsel remand, resentencing on During *4 evidence. mitigation available present statutory aggra- several that argued State (a) aggravating the review Thus, we first the death warranted circumstances vating presented evidence mitigating and again juryA case.1 penalty (b) newly-gathered the resentencing to eight death, a vote by recommended hear- 3.850 state evidence mitigation that accepted court trial state The four.2 district why the explain then ing. We the death imposed recommendation Florida the concluded properly af- court Supreme Court Florida The penalty. Robinson decision—that Court’s Robin- Supreme sentence. death firmed neces- prejudice the (Fla.1991) not demonstrated 108 State, So.2d 574 v. son con- neither relief —was mandate to sary ”). (“Robinson II ap- an unreasonable to, involved nor trary a Rule brought Robinson Subsequently, law federal established of, clearly plication challenging court state motion 3.850 States'Su- the United determined sen- death conviction his murder again 2254(d)(1). § 28 U.S.C. See preme Court. relief, and denied court 3.850 The tence. affirmed Court Supreme the Florida TRIAL RESENTENCING II. State, 707 So.2d v. Robinson denial. ”). Florida The (“Robinson III (Fla.1998) Circumstances Aggravating A. rea- determined Court Supreme mitiga- that the exists probability sonable Fields Accomplice Testimony post-resentencing gathered tion evidence read State resentencing, During would court the 3.850 presented Bernard Clinton portions jury aggravating balance altered guilt phase, testimony from at Fields’s Id. case. in this factors mitigating murdered Robinson how which detailed af- Court 695-97. Fields, According George.3 Beverly St. determination court’s the 3.850 firmed on party aat were preju- demonstrated trial weight,” the "great entitled is 921.141(5) (setting tion § Ann. Stat. Fla. 1. See whether itself “ultimately decides circumstances). court aggravating statutory forth appro- penalty the death imposition of by a death jury recommended initial 2. The Id. priate.” capital Florida's three. Under of nine vote scheme, a recom jury makes "the sentencing but phase, guilt during 3.Fields imprisonment life whether mendation right not to Amendment Fifth invoked Van punishment.” proper is the execution resentencing. during Robinson's testify 1318, Corrs., 290 F.3d Dep't. Poyck v. Stat. Fla. Cir.2002) (discussing (11th 3n. 921.141). recommenda- While §Ann. night of August 1985. After leaving were going to kill her. According to that party together, Robinson and Fields, Fields “she was begging, you know, ‘Is were driving on Interstate 95. you-all While going driv- to take me back to my car? ” ing, Robinson and Fields saw green you-all Is going car to kill me or what?’ parked in the emergency lane. Fields Robinson, assured her they kill her. who was driving, pulled over, “walked up After raping St. George a time, second green car ... opened [and] the door expressed concern that St. put a handgun out pants.” Robin- George could later identify them. Fields son came back with girl hand,” “this in his responded, “Well, it’s dark. know, You and “[h]e had gun on her you ain’t no way she could there, do that you know, pointing her, aimed at her.” know.” Robinson disagreed, stating, got into the back seat of his car “Well, only way she can’t do there, I woman, put her, handcuffs on and just go ahead and Mil the bitch.” Robin- told Fields to drive away. The woman was son then up “walked to her and put the later identified as Beverly St. George. gun to her cheek.” At that point, Fields *5 turned his head. Fields “heard the shot Subsequently, Robinson again took over off, went and then ... seen her laying on the driving and drove to the Pellieer Creek ground there. And then he [Robinson] Cemetery where he took the handcuffs off standing over her and gave her another of St. George and told her to take off all shot.” As to the first gunshot, Fields clar- her clothes. St. George then “got on the ified that “put Robinson it to her head hood of car,” and Robinson “put his there, right cheek, to her and pulled penis inside her.” After Robinson “got off trigger.” As to the second gunshot, Fields her,” he told go Fields “to ahead get and explained that “she fell on the ground” and it, get on her.” Fields told Robinson that “just Robinson stand and, over her pow, he “don’t really it, need because I got a shot again.” her girlfriend.” Robinson then “raised his After shooting St. George twice, Robin- voice,” and told Fields to “just go ahead son Fields, told “That’s what I had to do. on.” Scared by Robinson, Fields “went You know, didn’t, if I you know, she know ahead put and it in her pulled and it back how look, I know, you and could identify out.” When finished, Fields “got car, my you know.” Robinson then told back on her” and had sex with St. George Fields, “Now, she can’t do none of that.” a second time. While sex, having Robin- Thereafter, Robinson and Fields drove to son “had the gun in his hand lying on the road, a dark where Robinson took money hood of car, [and] had his hand over out of St. George’s purse and burned her gun.” “purse, ... underwears and papers, some some other Fields stuff.” explained that during then took the sex Fields back with Robinson, Fields’s St. mother’s house. George could At see the point some gun along 1-95, Robinson had in threw his hand. Fields murder weapon into a wooded described how St. area.4 George appeared scared, and on the way to the cemetery, St. Portions of Fields’s testimony on cross- George asked repeatedly whether they examination during guilt phase were 4. stipulated that he fired the fatal stipulations were read to the resentencing shots with a .22 Ruger caliber pistol. His jury, as follows: vodka gin some Cognac, Henessey Ac- jury. resentencing read also with 11:30 at about I left beer. and (1) Fields was testimony, cording to head [Fields], started We Bernard murder, kid- first-degree convicted I know girl to see a on for Orlando robbery, armed and rape, napping, there. State death,” and the life, not “got Fields with slack” “some Fields promised Plymouth green little I saw robbery, rape, sentencing for and around regard turned it. I someone (3) Fields convictions, and said, kidnapping I ‘What’s stopped. and and back went testimo- immunity for prob- said, use real granted “No was She problem?” stopped. tired Robinson. against ny she and that lem” stuck gun I had joked. talked We some- needed she said She my pants. West Investigator Testimony a bitch. son kill this thing like tes- investigator, West, the lead Charles her ex-hus- it was explained she Later West resentencing. tified band. her on kind “lying George found said, arm by her her I grabbed wearing [s]he side back, her I went And came. on” she “Come wounds shirt, two jeans, blue turned [restaurant] T’s Charlie past video- secured West head.” her gate awas There a road. down Over scene. crime taped in, I saw got I when And open. videotape was objection, counsel’s *6 around played cemetery. We awas the out pointed West jury. the to shown pants. her out of her little, got and I and area George’s head St. around blood car, I took the and the out of gotWe eye. left her wound over bullet the on the it and laid my pants of out gun about further West the were the chick andMe hood. statement, in which sworn, post-arrest said, kid And the car. of the front George shooting admitted Robinson her here take of out “Man, get let’s an shot first twice, claimed but “No, going I’m said, I car.” the to back state- post-arrest accident. party.” the back to bitch take the provided jury, the ment, published you are fuck the said, “Who she And follows: up, said, “Shut I bitch?” calling laugh, and started The kid p.m. whore.” 8:30 between night, Sunday On at me. pawing she went drinking party aat I was p.m., 11:30 has of State The wounding her. Johnny Leartrice That of facts. Stipulation firearm said the recovered found never August 11 between on or did Robinson Robinson. Johnny Leartrice used Cemetery within 12, 1985, Creek at Pellicer "[o]ne noted Supreme Court The Florida Florida, pos- in his County, St. Johns murder, the George’s Beverly St. before week with Ruger pistol .22 caliber the session ain bur- was stolen her used kill weapon being, George, a human Beverly St. evi- substantial state "[t]he glary,” fatally shot. the bur- indicating casing dence Remington shell long rifle .22 The weapon.” murder the thus glar, and fired cemetery was at the found Thus, avoid ”[t]o I, So.2d Johnny Lear- That firearm. by said ejected prior bur- of evidence of introduction firearm said did fire trice the state stipulated defense glary, the said struck shots that both twice Id. shots.” the fatal had fired head, fatally George in the Beverly St. picked I up my gun. She was right S. Testimony Medical Examiner against me, and I was trying push her The State also called Dr. Robert McCo- back. The gun went off and hit her naghie, the medical examiner for St. Johns fell, face. She and I called her and County, Florida. McConaghie described said, “Hey, bitch, get up.” She didn’t results his autopsy of St. George, as say I anything. got a flashlight. She follows: was lying side, on her and there was blood coming from her face. She 5was and a-half tall, feet weighed approximately 125 pounds, I got awas young seared. Then I shot her again. adult, woman, white I had about years to. How you do tell someone I of age.... accidently shot a white woman? I ass, hauled started driving. I drove and She received two gunshot wounds to her drove for maybe hour, two hour's. face, one of which was in the—entered Then I got my head straight and decid- cheek, the left traveled into the bot- ed to rid of her stuff. I don’t remember tom of the skull through the mid-brain where was, I but I threw pocket- her and ended up on the right side of the book, blouse and I don’t recall anything back of her head. else. The second bullet entered the left side The next thing knew, I it was break- of her forehead, went backwards into ing day. And I took Bernard [Fields] right and also ended up in the back home. Then I went home. Monday of the right side of the head. afternoon when I woke up, I took a There was extensive hemorrhage screwdriver and tore inside into the gun where the skull. There you pull was a it bullet track go- back. IWhen finished with ing it, through both sides of wouldn’t cock main pull lobes bullet into it. brain, gun the cerebral stayed hemispheres under the seat my and the portion car. I middle couldn’t brain, figure out what to do *7 medulla, with it. had penetrated been twice, screwdriver’s in my trunk. once each bullet. I was coming back from Orlando this on morning around McConaghie 8/17/85 1:00 and 2:00 further testified that St. o’clock this morning. And George “died somewhere as a result of severe brain between Daytona and injuries Beach, Ormond I inflicted by the gunshot wounds.” stopped the car on 1-95 and flung Other than the a scratch over her thumb and gun into the bushes. the gunshot two wounds, “there was no other significant injury” to her body. West also testified about post-arrest McConaghie also “saw no markings any conversation with Robinson. West asked kind or indentations or injuries to her Robinson why he placed had his firearm wrists, her hands, or her arms.” While into his waistband before approaching St. McConaghie did not notice any bruising George in her car. replied, around St. George’s vaginal area, his ex- “Well, you know, gun a is sign a of power amination did reveal that “spermatozoa and authority.” While West generally were present,” “[rjecent and that sexual agreed that Robinson was cooperative, intercourse had taken place.” West also indicated that Robinson already knew Fields was cooperating with the As to which bullet wound Robinson in- State. first, flicted McConaghie had “the impres- say, was is to that pressure; the cause cheek left the in bullet the that sion to- forcefully pushed muzzle gun the the in one the shot initial the was moving toward she was or her Although ward shot.”5 second the was forehead been have she ... Could “im- muzzle the rendered been have would George St. ..., rather gun the bullet toward moving either after mediately unconscious” push- gun the holding person believed McConaghie the head, than her into went shots the face? her against it ing either from “[d]eath that It instantaneous. been have would way of have I McCONAGHIE: seconds, several at least taken being was gun the knowing whether to death before minute to up perhaps toward pushing was in she pushed still probably George was St. occur.” gun. the because shot first the after breathing in St. that wound bullet lungs the her to regard in found blood With was “[t]here mouth, believed McConaghie forehead, the back -George’s from come to had feet two the head. inside “one was held gun the blood—from that from blood have breathed had away.” she So more.” possibly breath one least at Eversole Annette Testimony of f. dis- about testified McConaghie George, St. with lived Eversole time Annette each held was gun which tance brother. George’s to St. to her married regard is With was shot. George St. testimony her portion stipulation, By McConaghie cheek, left re- to the read was wound,” explaining phase guilt contact “tight awas Eversole, According cheek jury. “pressed sentencing was gun August testi- That home left George cheek.”6 into the St. pressed before testimo- out $197 George Fields’s count with St. consistent saw mony Eversole against her up bills gun those put placed George ny that St. bills. counsel, her black cheek. billfold George’s placed St. billfold for money cause another however, posited discussed Eversole purse. could McConaghie wound, “to be wanted she contact because George St. out, make as follows: enough to rule George] [St. sure George St. Virginia. Quantico, trip” to wound a contact see [W]e DEFENSE: con- hearing Virginia headed ques- beyond think and I there children. her custody of cerning moving However, what *8 tion. is which up here abrasions small There's comports with testimony resentencing 5. This a weapon, aof muzzle the with However, guilt consistent testimony. Fields's is which laceration, the skin tear asked, you tell small “Can McConaghie was phase, gas with consistent which is gunshot which person above examining a by of wound tight contact He an- a escapes second?” from gunshot which or first skin highlight- skin, counsel underneath swered, gas that's "No.” cross- while tears. inconsistency see it you can apparent up and this ed swells resentenc- wound McConaghie before examining powder around no is There McConaghie things admitted other ing jury, particles small there's evidence physical no anatomic And fired. weapon that’s “[t]here's from come first.” fired shot was consistent indicate wound] [of photograph wound. gunshot tight awith conclusion, as McConaghie described follows: George left in a green Plymouth, a comfortable and confident rendering a di- car with which she had previously experi- agnosis without the use of a psychological enced mechanical difficulties. Eversole la- test.”
ter identified St. George’s body at A “large portion” of what Krop learned medical examiner’s office. came from himself, but Krop also “spoke to some people that knew Mr.
5. Testimony State Attorney for Robinson,” despite the fact that “[i]t was Maryland not easy get a hold of family members in this case ... because of the nature Also stipulation, presented State his background.” Specifically, Krop spoke portion of the guilt phase testimony of (1) Robinson’s biological father, Edmund L. Widdowson, Jr., an assistant Rev. Robinson, (2) J.B. Smith, Coreen “a state attorney for County, Somerset Mary- woman whom indicated ... she quite land. Widdowson testified about Robin- familiar with Mr. Robinson, at least as a son’s 1979 conviction for forcible rape in youngster, because he spent a lot time Maryland.7 Robinson received sentence house,” at her (3) Smith, Earl “[t]he boy years ten prison on that rape convic- that Mr. spent some with, time tion, but was early released parole. At [t]hat was son, Coreen’s and I was the time of St. George’s 1985, murder in to speak able with him as well I whenever Robinson was on “parole status” for his called Ms. Smith,” Coreen (4) a sher- rape conviction. iffs officer who knew pris- Robinson from Krop on. (1) also reviewed “a number of B. Mitigation Evidence Defense’s records prior testimony prior (2) hearings,” Robinson’s counsel’s “entire After the rested, State Robinson’s coun- file,” (3) presentence “a investigation,” sel presented Dr. Harry Krop, a clinical (4) Robinson’s “Department of Corrections psychologist familiar with Robinson’s back- records.” ground. Krop met with Robinson during 1986, March before the initial sentencing, Krop testified that the persons with and again on December 1988, before the whom spoke, and the materials that he resentencing. During those meetings, reviewed, portions corroborated Robinson and Krop discussed Robinson’s what he and Robinson had discussed. Giv- “past history.” Krop did not administer en its private nature, Krop explained that standard psychological tests “because certain information could not be corrobo- history [Robinson’s] was particularly note- rated. Krop also clarified that “the worthy in terms of his own self-report and people who might know about some of there were some other documented as- these aspects of Mr. Robinson’s back- pects of his history already in the records ground would most likely not be willing to that I reviewed.” Krop further explained, share that information since it’s partic- *9 “[Psychological tests are used to primarily ular positive [sic] in terms of these other in diagnosis, assist and ... based on the people,” (2) and person “the who probably six hours that I spent him, with I felt knows the most about Mr. Robinson, that pled Robinson guilty to this rape charge in force force, and/or threat of against her will Maryland, alleged which that he engage "did and without her consent.” vaginal in intercourse with [the by victim] later contributing to factor; again all uting for him, least at raised who man is development.” So, personality I living. longer life, is no his of part any information obtain to able wasn’t subject was up, Robinson growing While source.” abuse,” as as well physical “considerable to grandfather abuse. cases, emotional capital many in testified Having “[tjhere and belt” leather “a black used with both familiarity his indicated Krop had Robinson Mr. instances were mitigating nonstatutory statutory and was a switch and together tied hands his to consider entitled jury circumstances grandfa- “the Additionally, him.” used on did believe Krop law.8 under use would grandmother ther or cir- mitigating statutory any were there Robinson Mr. have and handle broom Krop, case.9 in Robinson’s cumstances his between handle put broom squat, Robin- about length however, at squatting in a basically sit have and legs he summarized what and background son’s Rob- position, squatting In that position.” circum- mitigating nonstatutory as seven Co- hit. physically (2) sometimes was inson deprivation; (1) emotional stances: Robin- Krop that indicated (4) reen Smith abuse; incar- (3) abuse; sexual physical son’s her over to come often (5) child; son “would aas prison an adult ceration peri- for stay there house, and house, her at disorder; intoxication psyehosexual [grandfa- that his complaining time of ods (7) ability to offenses; and the time about him, complaining hit ther manage- being without prison function on a bruises “saw also Smith abuse.” problem.10 ment Krop occasions,” told and number ex- Krop deprivation, to emotional As back going and try avoid “would Robinson his knew never Robinson plained home.” really communi- never “was mother sexually abused. also was Instead, Robinson mother.” his about cated sexually was old, Robinson years 7When grandfather by his raised want did uncle, “he but by an abused step-grand- then grandmother, he didn’t because about anybody tell Re- corroborated “was This mother. also queer.” as seen to be father, want Robinsonf,] biological verend about father his told if he thought that Mr. Robinson told ... never who further lead abuse, “that would sexual not his really were him raised who people When abuse.” physical Robin- Krop considered parents.” natural 60’s) (in his old, grandfather years deprivation,” “emotional son girl year-old-girl, 15a married up essen- grows when one “that believed num- “on a abused sexually getting and without a mother tially without “was she Legally, occasions.” ber a contrib- affection, would be love as "nonstatuto- then referred 10.What at Krop in used counsel 8. Robinson’s been since has mitigating ap- circumstances’’ ry Krop also capital cases. 25 to least any fac- other existence "[t]he other codified capital cases peared numerous background that occasionally for defendant’s attorneys, tors defense pen- death of the imposition against mitigate of Florida. State 921.143(6)(h). §Ann. Stat. alty.” Fla. un- mitigating circumstances statutory 9. The the time Florida law der resentencing 43 in- in footnote discussed are *10 fra.
grandmother, but perceived he her as his Krop also offered the following diagno- stepmother, since the grandfather was ... sis: while “there is major form of men- in the role of the father.” Robinson had illness,” tal Robinson has “an antisocial “extreme difficulty” in disclosing to Krop personality disorder” and “a psychosexu- this sexual abuse. A few months after his al disorder.”13 Krop further grandfather’s new in, wife moved at the about Robinson’s drinking and drug habits. age of 11 or 12 Robinson ran away and Robinson had not used drugs throughout started living on the streets. Robinson his life and did not consider himself an lived at various migrant labor camps “at alcoholic. However, Robinson did admit to age of 12 to 13 or 14 ... during Krop that he had been drinking on the day time again reports that he was sexually and evening of the murder. Robinson told abused on a number of occasions by these Krop that he started drinking around 4 individuals.” p.m., when pint “he had a of Crown Roy- al.” reported During having “anywhere period, time Robinson also two, from three or “began four getting cups ... liquor” into legal trouble.” Robin- at “a party,” son but he was once told the sure “totally authorities he was 18 sure” years as to the old amount. because he did not want to be “drank maybe sent two or back three six-packs home. According to Krop, Rob- beer, ... inson “always pint has drank another been a fairly Crown large indi- Royal during vidual. the night.” Apparently Krop there acknowl- was no way that edged that he they had no “independent checked and he was data” ultimately incar- on exactly how cerated in much an adult prison had been situation at the drinking on age the day of 13.” Robinson, evening of having left school murder. sixth grade, finished his education in the prison system, where he obtained a The final factor to which Krop testified GED and about 30 college credits. on direct was how Robinson functions 11. Krop also testified as to his own belief that diagnosis Another that I certainly being incarcerated in an adult facility could make, incident, based on this as well be emotionally traumatic juvenile. for a previous background, is what we call a psychosexual disorder. A psychosexual dis- 12. Krop described Robinson’s per- antisocial order is diagnosis ... given to an individ- disorder, sonality as follows: ual behavior, whose sexual either the be- behavior, Mr. Robinson's both in terms of havior itself is inappropriate, such as forced getting into trouble when he was in soci- sex, object or the person to whom he is ety, I would have to label diagno- him and sexually attracted inappropriate; sis such as having him as personality disorders, person who is attracted specifically to young chil- antisocial personality disor- dren .... der. we [Here] have the [W]hen an forced sex as individual exhibits cer- an incurring tain kinds of personality [sic] Psychosexual incident. traits over a long period of time disorder is certainly those an appropriate traits generally diagno- person lead to the sis getting trouble, either for Mr. Robinson. Oftentimes we see or having difficulty functioning himself, individuals who suffer psychosexual then it is labeled as a personality disorder. disorder as victims themselves of sexual certainly And looking at So, Mr. Robinson's abuse. certainly did not any come as background, it’s understandable ... why surprise when Mr. reported Robinson ... he developed some of these personality ... his own victimization in terms sexual traits, which unfortunately kept reenforc- abuse. ing anger and his resentment and his feelings rejection and inferiority. Krop described psychosexual Robinson's disorder, as follows: *11 (3) offenses, and of time ication at that Krop to reported Robinson prison. The State in jail. well to function ability ... been has and better functions “he “self-in- factors as these characterized than situations prison in productive more consid- properly not factors” type duced Rob- prison, In community.” in the has he intoxication, toAs mitigation. in ered been “has and his GED obtained inson report that Robinson’s acknowledged Krop Robinson’s tutoring.” some involved sec- during his different” “somewhat was Robinson Krop that told officer probation Robinson indicated in that interview ond management not is [and] ... well “does drinking ear- (and started drank more had Robinson’s of review Krop’s problem.” his questions that Krop lier), noted but had he that confirmed records prison also differ- drinking were about Robinson reports. disciplinary interview. second during that’ ent cross-examination, State During statu- on certain focused also The State Robinson’s whether about Krop questioned circumstances, namely aggravating tory corroborated history was self-reported George to killed having Robinson’s spoke. Krop whom with people other Krop State asked The avoid arrest. those spoke he that admitted Krop shot St. he indicated Robinson whether resen- night before only on the individuals prosecution, avoid time a second George that, while acknowledged Krop tencing. indicat- Robinson testified. Fields directly not Smith Ernest Coreen believe” like to he “would Krop that ed to Robinson, abuse physical observed George so St. shot second fired he on Robinson bruises had seen both “didn’t suffer, Robinson but not his that Krop agreed occasions. several shot St. he that possibility deny” the abuse sexual Robinson’s about testimony aas her to eliminate time George second “al- based deprivation and emotional witness. self-reports, on Robinson’s entirely” most vari- “the PSI’s that other Krop added about re-direct, testified Krop but On certainly indicated Krop ... mitigating. records other ous be believed facts he in a mother re- natural not have more taking is he did that Robinson that stated toAs up.” grew hos- he less and is in which actions household sponsibility “any Krop stated him. abuse, Krop met first Krop when the sexual than tile towards generally kindness abuse sexual Robinson’s report mentioned example, Krop add- For herself.” deeds. good himself or person, others help- (1) reluctant very “was Krop ed atof family in “terms system jail county contact counsel me or ful were there not which did that he indicating incidents members[,] four least violence,” did he [for] potential involved [sic] them be want (2) violence, relevant.” particularly quelled they were feel that edu- their obtain prison by per- only helped others Krop, “[i]t According GED. [Robinson’s cation Pearl both Mr. suasion us gave myself counsel] questioned also counsel Robinson’s contacted.” we people names two least rec- employment Krop about was listed extent to some ord, Krop why questioned State Krop reviewed. PSI “mitigat- factors following considered any formal aware stated, “I’m Krop incarceration, intox- (1) long-time ing”: *12 employment, but I did not note that in the him; (6) voke murder committed to record.” Robinson’s pressed counsel fur- arrest, avoid because Robinson shot St. ther as to Robinson’s work history, asking George so that she could not identify him whether it was true Robinson repaired as rapist her or kidnapper. It was these automobiles. Krop replied, “I believe that aggravating factors, the State argued, that I saw that part in—as of the training that warranted “the punishment ultimate he received noted, or was a that’s skill nothing less.” of his in his records.”14
In closing, the defense argued that the particular circumstances under which Rob- C. Closing Arguments inson had committed the crimes at issue During closing arguments, the State ar- were subject great to a doubt, deal of even gued jury that Robinson’s conduct though the resentencing jury had accept supported these six statutory aggravating the fact that Robinson had been convicted. (1) factors: murder committed person a The defense emphasized that Fields’s and under sentence of imprisonment, because Robinson’s accounts different, were Robinson was on parole for prior his rape that Fields was not necessarily telling the conviction; (2) murder committed aby truth because he had something to gain for person who had previously been convicted testifying against Robinson. Characteriz- of another felony involving the use or ing the veracity of Fields’s testimony as threat of violence to some person, because “the key” to certain statutory aggravating Robinson had a prior rape (3) conviction; circumstances, the pointed defense out cer- murder committed in the course of a kid- tain inconsistencies in Fields’s testimony. napping sexual battery, because Rob- The defense also argued that some evi- inson took St. George at gunpoint and in dence suggested certain aggravating cir- handcuffs and raped her; (4) murder cumstances did not exist. which is particularly wicked, evil, atro- cious, The cruel, defense walked through because its mitiga- Robinson hand- evidence, tion cuffed St. George pointing out that “immediately,” Krop raped “out- her horror, “time time,” lined after almost her, terrorized unbelievable childhood put the for man, firearm this “up to Johnny her cheek,” Robinson, while which re- St. George begged sulted life; her man you murder see today.” committed in cold, calculated, defense highlighted and pre- the physical, sexual, meditated manner, without any pretense emotional abuse Robinson suffered as moral or legal justification, child, because and that Robin- Robinson essentially grew son took St. George to up a desolate area streets. The defense also dis- weapon murder he procured cussed before he other mitigating circumstances first approached her, shot her twice be- which Krop testified, including Robin- cause thought she might later identify son’s intoxication at the time the of- him, and committed the murder fenses, even deprivation emotional and psy- though St. George did not resist or pro- chosexual disorder, his incarceration in an 14. In a section ''EMPLOYMENT,” entitled rages, and used car lots on an as needed Robinson’s PSI listed "occupation” basis,” and that Robinson had "numerous” "auto mechanic.” The PSI further stated that jobs past in the years. two Krop reviewed "[t]he defendant is an auto mechanic who PSI before testifying. works primarily contractors, for labor ga- OF APPEAL DIRECT III. func- ability to child, his as a prison adult RESENTENCING and, certain system, prison tion towards kindness situations, Robinson's *13 Supreme Florida the appeal, direct On noted further defense The others. resentenc- court’s the trial affirmed Court matured had offenses, Robinson his since at 109. The II, So.2d ing. Robinson acts. his for responsibility taken rejected Robin- Supreme Court Florida claim error, including claims of son’s Death Sentence D. to permitted have been should he “that the of the time at his intoxication resentencing jury establish deliberating, the After Dr. of testimony the through solely to eight of crime vote by a death recommended Supreme Florida 111. The im- Id. at Krop.” court trial Thereafter, state the four. hearsay that “Robinson’s the finding six reasoned penalty, Court death posed during a medical the doctor circumstances statement aggravating statutory any evidence statutory mitigat- of interview, absence argued State trial, insufficient at impairment circumstances. of ing mitigating this of existence establish mitigation of noting much Although origi- in (emphasis Id. circumstance.” self- only from came evidence nal). these found court the trial Krop, reports circum- mitigating nonstatutory argued also three Robinson appeal, direct On (1) child- difficult had a circum- aggravating stances: the six of three sexual (2) physical hood; suffered Su- Florida The unjustified. were stances (3) a childhood; and abuse “that finding part, in agreed preme Court de- trial court The disorder. psychosexual this finding in erred court trial was intoxicat- that Robinson find clined atrocious, or cruel.” heinous, was murder because offenses time of the at the ed Florida Yet Id. The the evidence.” by supported “not was out- persuaded “not Court evidence credible “no found also court trial light in any different be come a child as was incarcerated [Robinson] remain- circumstances aggravating specific acknowl- Although prison.” an adult under person aby committed ing—murder prison,” inwell “functions edging com- murder imprisonment; sentence good determined court trial aof convicted previously person mitted of the mitigation “is behavior committed murder felony; violent crime.” kidnapping; battery and sexual course arrest; and to avoid committed murder not- specifically court trial state The calculated, cold, committed murder case, aggrava- “the that, in Robinson’s ed Id. manner.” overwhelming.” premeditated are circumstances ting that Robinson reasoned court trial The he yet rape, and prior parole
onwas PROCEEDINGS 3.850 IV. STATE robbed, and murdered terrorized, raped, filed 1993, May On trial stranger. a total George, of Conviction Judgment to Vacate Motion except George, “St. emphasized court Rule pursuant Sentence Robinson, to” witness, no threat aas In that Rule 3.850. Procedure Criminal pur- specific for the killed “[s]he alia, inter alleged, motion, Robinson 3.850 a witness.” eliminating her pose ineffective assistance of counsel during his an attorney, they might ... be willing to resentencing. The crux of speak to mental health professional.” claims was that his trial counsel failed to Pearl did not personally contact back- investigate present ground available mitiga- witnesses, but “gave their tion evidence. names, During an evidentiary [and] other data ... Krop Dr. hearing, the 3.850 court and asked heard testimony him to make the inquiries.” (1) Pearl, trial counsel however, Pearl, Howard did help who is Krop obtain infor- deceased, (2) now mation from Krop, and poten- two about his back- mitigation ground. tial For example, witnesses.15 We about now one review month *14 prior to testimony. that resentencing, Pearl wrote a letter
to Robinson advising that he was “in the process of final preparation” asking and A. Testimony Howard Pearl provide Robinson to names of any family Howard Pearl was Robinson’s lead trial in Georgia. members replied counsel.16 1972, Since letter, Pearl had been an naming certain individuals. Robin- assistant public defender in wrote, son also Florida’s Sev- “I wish I could give you enth Circuit, Judicial where more to with, work Robinson was but the majority of tried. From 1993, people 1978 to I Pearl have known as- been and/or close to signed capital are now cases. During deceased.” Pearl that fif- forwarded Rob- teen-year period, reply Pearl inson’s to Krop defended 300 and capi- note, a attached tal cases. Of those read as capital cases, 300 follows: Pearl tried somewhere between 90 and 100 cases Dear Harry: Just received this letter juries, before all within Florida’s Seventh from Johnny Robinson. may It contain Judicial Circuit. capital Robinson’s case sources information/background pre- came to Pearl during the middle of Pearl’s viously untapped. Sincerely, Howard.17 career. Pearl could not specifically recall whether case, In this relied, Pearl in part, large he forwarded to Krop other names that on Krop to investigate potential mitigation Robinson gave Pearl during prison a visit. witnesses. Pearl testified that “[t]here are However, Pearl testified that it “would times when strategically we feel that while have been my practice unfailable [sic] the witness ... might be highly reluctant have done so. I imagine can’t not having to talk to a Public Defender investigator or done so.” 15. The 3.850 court also heard testimony from lie defender in Florida's Seventh Judicial Cir- Cushman, Thomas E. Fields's lawyer, Quarles and cuit. handled both of Robinson's di- (2) Pat Doherty, a lawyer who offered his appeals rect to the Court. expert opinion as to whether per Pearl had Quarles’s However, role resentencing formed effectively during resentencing. Their limited, Quarles had no responsibili- testimony is not relevant to whether Robinson ty investigate prepare or to for the resen- demonstrated prejudice necessary to man tencing. Thus, date relief. we do not review it. See Butterworth, also Freund v. 839, 165 F.3d 863 persons 17.The named in Robinson’s (11th letter n. Cir.1999) (en banc); Provenzano were later contacted by Krop, except for Rob- Singletary, v. 148 F.3d (11th Cir. inson's cousins. Robinson 1998). had written that he had “no idea where to contact” those Quarles, 16. Chris second chair during cousins. Robin- resentencing, son’s Quarles also Pearl, testified. Like had experience wealth of pub- aas not Pearl did therefore cative,” communicat- he indicated Pearl witnesses additional to the access have him sent times” Krop “several with ed “have counsel 3.850 state Robinson’s Robinson. about learned he everything years.” of five period over found had some “he to Pearl Krop reported family members reaching ... difficulty re- witnesses additional Many those kind them receiving poverty That poverty. layed I spirit cooperative cooperation he because to Pearl surprise as came he ..., but get wanted sure am Pearl’s In “beforehand.” it about knew Pearl members.” family talk [Krop] did would poverty evidence opinion, competent as just “Krop is noted a St. impact a substantial have down tracking them finding people St. Johns because part, jury, Augustine asked When to him.” am, I left so I thus county, rich County was Krop get helped he would whether background rural poor, replied, Pearl people, certain simi- touch who people meaningful not be anything *15 “done have of he stream that part, to the As backgrounds.18 lar ... do, he if to him not asked did [Krop] East, Pearl that labor migrant ain person particular to find me of whether —the asked question “the consider Iwhat done have of the I city, would a member particular [Robinson] that fact re- however, I don’t knew, but person, that find Pearl to could stream.” migrant do that.” to la- me migrant asked Krop around Dr. worked Robinson member that Pearl in told Pearl, Krop never the “environment borers, to as According well sufficient did Pearl not have But did lived.” (1) he that [Robinson] either Robin- have “would diagnosis information render that to believe not information Johns to a St. find witnesses not if (2) he could exhibited son, productive that or been there capturing from assistance terms of in jury County additional needed thus interest.” or sympathy [sic] Pearl. to choice it his that, about general, in testified Pearl further Pearl Pearl witness. mitigation from Krop as the information use to obtain difficult witness mitigation aas Krop that used recalled Pearl Robinson. that explained Pearl cases. capital information other give reluctant “was inter- investigation, Krop’s Dr. or from family “[w]ith his from people identify informa- receive ability to tests, views, his considered have might we past his his init include[] Pearl, anyone from tion According to calling.” though history, even testify. testimony as “them” want not he did him told risk he “eliminates hearsay,” death mere initial his after agreed Pearl mothers, rela- if I use .... canons truth- “friendly, loose awas sentence, Robinson the risk run always friends, I tives, client,” but cooperative ful, and controllable are people such members get want “certainly didn’t me away run may testimony their about talk didn’t family involved rath- agenda, their own they because clarified later Pearl that.” them I want things attend er than “non-communi- reluctant” “highly Augustine, juries Circuit, understood different (1) juries are indicated Pearl having tried Florida. throughout Judicial the Seventh capital cases all of
to say.” However, Krop, Pearl could with Krop “it would come from a neutral “bring all the testimony as history with- source.... Other witnesses would have out the risk of outbursts ... [or] uninvited appear[ed] ... more inclined toward his ejaculations which might risk the defen- side ... impersonal. less And the cross dant in the eyes of the jury.” examination would have hammered and re- peated facts prior about his criminal rec- In case, Pearl stated that he ord ... [which] would have been driven “looked other witnesses to see whether into the minds of the jury much more might I [put want to people on other than repeatedly....” Krop],” and Pearl decided not to. Pearl explained that he “decided there was noth- Moreover, Pearl was successful in de- ing other people who could testify —no feating introduction certain “similar that Dr. Krop could not include in his fact” evidence at resentencing. One week testimony that would put the defen- after St. George’s murder, Robinson was dant at additional risk on cross-examina- arrested armed robbery and sexual tion a competent prosecutor....” And assault another woman stranded on the when deciding whether present a wit- Thus, interstate. the resentencing jury ness in mitigation, Pearl generally consid- heard, never as the put State it during the ered “whether or not that [witness] 3.850 hearing, “that [Robinson] had used a ... would constitute a deployment of evi- similar, MO, if will, you of driving along dence that could be used on cross-exami- the interstate, quote, ‘Helping a disabled *16 nation to destroy the character of the de- vehicle, committing an armed robbery and fendant or to compromise ”19 the meaning or a sexual assault.’ intent of the evidence.” Pearl acknowledged that lack of corrob- In light of Robinson’s criminal history, oration of Krop’s testimony point was a Pearl testified that there would be danger attacked by the State during Robinson’s in presenting a witness who had not seen initial sentencing. However, Pearl “felt Robinson in some time. Pearl stated that that further character evidence about Mr. “[i]t would be catastrophic” because the Robinson [at the resentencing] would be prosecutor could “have confronted these harmful helpful.” not witnesses with Mr. Robinson’s later crimi- nal activity ... [a]nd then ask[ed] them B. S.850Testimony Krop whether or not that might change their minds about their opinion of Mr. Robin- Krop that, upon appointment, son’s good character.” Pearl acknowl- did he not understand he was responsible edged that the resentencing jury go- was for investigating Robinson’s background. ing to hear about portions of Robinson’s According to Krop, Pearl did not tell him criminal background anyway, but at least he expected was to talk with Robinson’s 19. The following exchange occurred: STATE: they And did not hear the testimo- STATE: jury [The never ny eye heard] that of the he was witness who said Johnny [for arrested this] ? Robinson did it? No, PEARL: they did not. No, PEARL: they did not. And, STATE: certainly they never heard the STATE: That is because nothing that was testimony of the officer who presented made the mitigation opened the door case? . .. that for testimony, true? No, PEARL: they did not. PEARL: Certainly. “question” to he that Krop testified em- members, former or friends, family longer be- he because diagnosis for that any time bill not Krop did ployers. to Robinson. applied criteria Despite certain lieved witnesses. mitigation looking for suggested to affidavit prior one 3.850 example, agreed For Krop testimony, this because ad- to school go note did not Pearl’s he received that resentencing, information/background poorest of “the being for “of was teased him .vising truancy cri- to that untapped,” Krop testified previously poor.” at- was is individuals disorder certain naming personality letter antisocial terion admitted legiti- Krop also is a in fact there tached. “if applicable not Krop told resentencing, Pearl before night than truancy] other [for reason mate from Robin- individuals three to contact wanting go not just individual Krop so. Krop did background, son’s diagno- his “new indicated Krop school.” him not ask however, did Pearl added, “personality be would for Robinson sis” individuals. other any to contact specified” otherwise not disorder Even disorder.” personality “mixed resentencing testimony Krop’s not information, Krop could additional this “reluctant” was that Robinson was “antisocial diagnosis initial out his rule contacted, not want did members family only Krop stated disorder.” they personality were feel involved, and did them information sufficient testimony dur- not “have he did However, Krop’s relevant. say this truly in time point hearing 3.850 ing per- give refusing to antisocial never cooperative, person [Robinson] Krop But asked. when sonality information disorder.” Krop it indicated agreed “psychosex- diagnosis initial to his As people contact be difficult that he disorder,” Krop testified ual know did past because to characterize mistaken probably found. could be they where considering without even “diagnosis,” *17 above, testified Pearl noted reviewed, As had he information additional had insuffi- indicated Krop never follows: Robinson. diagnose information cient asked never I was Well, guess I Krop did hearing, 3.850 During dis- Psychosexual misspoke. I perhaps testimo- of Pearl’s portion contradict [I]t diagnosis.... not a really order in- more Nonetheless, on one based ny. individual for an description generic ais review and a terview paraphelia a either from suffers by Robin- provided documents additional two are Those dysfunction. a sexual counsel, Krop retreated 3.850 son’s entities.... diagnostic types of Robinson.20 diagnosis initial refer- certain indicated then Krop diagnosis initial to his As jury resentencing by Pearl disorder,” ences personality “antisocial had ref- (1) did make “I testified Krop (1) 21. further included documents additional 20. Those diagno- as a disorder] [psychosexual erence migrant farm about books excerpts from correct,” (2) "1 should sis, was not medical workers, (2) certain considered It is not a it disorder. said is records, (3) affidavits several inmate words, generic ais it other diagnosis. In background. Robinson's about be a would it underneath then term which diagnosis.” about Robinson’s sexual tendencies er, de- and that Robinson started drinking in scribed “a paraphelia,” which, his youth. based on his One affidavit also described post-conviction “drunken review, binges” by Robinson, Krop did although not be- was not clear when lieve those binges Robinson had. occurred. And in another affidavit, an employer of In large part, Krop based his retreat Robinson stated that he heard Robinson^ from a diagnosis of “psychosexual disor- could on,” “tie one but “never once seen der” on the affidavits of three women filed [Robinson] take a drink.” Based on these by Robinson’s counsel in the 3.850 pro- affidavits and other post-conviction materi- ceedings. The als women’s indicating prevalence affidavits indicat- of drinking in migrant ed they camps significant generally, Krop romantic relation- that Robinson may ships have had an with Robinson. alcohol Those women are: problem. abuse However, (1) Krop “cannot Evans, Cora Mae with whom Robinson definitively diagnose [Robinson] as alcohol 1979;22(2) child in Lovett, Winifred abuse at this time or dependent.” alcohol with whom Robinson lived; once Krop agreed that, now, even he does not Brenda Shivers, Ann with whom Robinson diagnose Robinson as having a substance also once lived. According to Krop, these abuse disorder. women described “kind,” Robinson as “af- Krop also indicated that he would have fectionate,” “respectful women,” and re- modified other aspects of his resentencing ported that Robinson showed “no deviant testimony. For instance, Krop no longer sexual behavior.” Because these affidavits believed he had given a fair summary of indicated Robinson “is capable of forming Robinson’s life of antisocial behavior, given and having relationships with women of a that several 3.850 affidavits described Rob- nonviolent and, nature to the contrary, kind, inson as generous, and respectful. even kind respectful relationship ... Krop also did not believe his own testimo- sensitive to a needs,” woman’s Krop ny that .Robinson had no formal employ- not consider Robinson as ment was having a psycho- accurate.23 And Krop now be- sexual lieved that disorder. Robinson’s contact with labor camps was more extensive than he had Krop also indicated that alcohol abuse once thought.24 might be a proper, additional diagnosis for Krop Robinson. C. Additional Mitigation reviewed certain affida- Witnesses vits indicating that grandmoth- Robinson’s 3.850 counsel located several *18 Janie, er who him, raised awas big drink- people from background Robinson’s who 22. Cora Mae Evans testified that Robinson 24.Summarizing how he would now testify “treated special me as because I was a wom- about Robinson’s background, Krop stated: an.... He was very respectful of me.... I would life, migrant discuss the how He has never tried to hurt me.... truly He is abusive environment and his caring a involvement man.” migrant in lifestyle and the drinking and 23. This inaccuracy abuse, is not due to the of sexual putting lack infor- all together. that mation at the time of resentencing. I say would Krop it's much more severe than I admitted prior to resentencing, ever imagined Robin- ... and I would talk about Krop son told had he worked for a newspaper how all of those factors dynamic have a in Georgia for years. three And impact Robinson’s on his personality and have contrib- (reviewed PSI by Krop before resentencing) significant uted in a way to his behavior on a history indicated of employment. the date of the offense.
1339 new not have did Robinson Troy, Unlike resentencing, testified would shoes. clothes Robinson seen had themof most but heard court 3.850 time. some for son, up grew with Ethel’s Byrd, Warner Byrd them, Ethel two of from testimony testimony Warner’s of Much Robinson. affi- proffered Robinson Byrd. Warner and concerning Robin- Ethel’s with comported mitigation potential other the from davits fields, the conditions in the work son’s witnesses. child- poor fields, generally the and those aas testified well Warner Robinson had. knew Robinson Byrd hood Ethel Robinson Robinson he and him since had not seen the school about boy, yet testimony Ethel’s had recreational old. That school years about was attended. Robinson abuse to cut physical required' the facilities, on Robinson focused and wit- Ethel up. morn- growing each while fire school’s suffered for the wood the as known winter, grandfather, “you Robinson’s nessed keep warm To ing. “belts, elec- with Robinson beat with Baby Boy, clothes,” even because of a lot wore age of early whatever,” cords, or War- warm. stay tric did not fire, the school contractor labor farm Boy was a Baby and drinking 5. Janie’s remembered ner fields, in the working Robinson point who had Robinson Boy beat Baby seen 6or conditions, by around horrible under blood. he drew picking stopped Robinson If old. years filed affi also counsel 3.850 Ethel beating.” got “he crops, then witnesses. mitigation potential davits Ja- grandmother, testified to Robin attested the affidavits Generally, often,” and “quite whisky nie, drank others,25 to kindness for good deeds son’s intoxi- Janie “occasionally” seen she of hard history family,26 and wards friends and Ethel, Baby Boy According to cated. as prison,28 behavior work,27 good and son, Troy Hes- natural their treated Janie life difficulties as to well Robinson. than considerably better ter, members example, several For 27. former Robinson's example, one 25. For newspaper family, owned who Smith Maddox, testified William employers, worked, Robin- testified which Robinson According to helping folks.” “liked Robinson Similarly, Maddox great worker. awas son "somebody Maddox, saw Robinson when he worker the best that Robinson claimed road[,] being a along the down broke Robin- also knew Ray Hutcheson had. ever what stop see mechanic, history, recalled employment past son's quell helped also was.” trouble trucks some had fixed a “kind place in work disputes at Hutcheson good mechanic.” a real “was way. gentle” work for "did testified that police tires putting department police about Troy Hester example, For Hutche- friends” “for some other cars” Troy when helped him that Robinson time as remembered Hutcheson son’s. "in chest shot had been humble,” natured,” "real "good “friendly,” “whole days.” That ward for special care well along got who someone *19 family Troy's with time,” stayed everyone. ran everything.” Robinson care “took Gossard, a state family, example, sat William business, Troy's after For 28. looked Troy's Rob- Maryland, prison “drove down official hospital, Troy in the large number from "handpicked” [others] was inson Baby Boy some got Virginia and facility be- open help another hospi- inmates up visit me them and drove record, trustwor- was good "is the cause “he Troy, Robinson According to tal.” serve years to two than had less any- thy, and absolutely ask you can person kind of in- model "a was his sentence.” thing of.” 1340
migrant system.29 farm Certain affidavits drink. None of the procured affidavits by recounted physical abuse suffered Robinson’s 3.850 counsel specifically ad- Robinson and other difficult aspects of his dress the amount of alcohol Robinson re- childhood.30 The affidavit of Winifred Lo- ported drinking before he murdered St. vett indicated that she had visited Robin- George.
son “over at jail,” the adult but Lovett did not state in her affidavit how old she be- D. State Courts Deny S.850Relief lieved Robinson atwas that time.31 After the three-day hearing, the court Lovett, as well others, as also testified entered an order denying Robinson’s 3.850
about the role alcohol generally played in motion. The 3.850 court determined that life, particularly when he “[e]ven if the affidavits are all true the growing up. For example, Lovett and aggravating circumstances overwhelm the Robinson used to drink together beer mitigating circumstances.” Applying growing up, and several affidavits indicat- Strickland v. Washington, 668, 466 U.S. ed that grandmother Janie was S.Ct. 80 L.Ed.2d (1984), a big drinker. Jack Humphrey, a labor court concluded that Robinson’s trial coun- contractor who knew Robinson growing up sel exercised reasonable professional judg- in the early 1960s, testified that “[o]n the ment and in any event, there was weekends, all the young one’s [in the labor “not a reasonable probability that Defen- camp], including [Robinson], would drink dant would have received a life sentence if beer and Baby wine.” Boy Hester32 de- the background evidence would have been scribed Robinson as a binge drinker, but presented in the manner [3.850 counsel] his affidavit does not indicate when he had argue it should have been.” last Robinson, seen or at point what Robinson’s life he had seen these binges. Under Strickland’s prejudice prong, the Maddox, William Robinson’s employer in 3.850 court noted that Pearl’s decision not the years before St. George’s murder, present character witnesses who would heard that drank, but admitted testify that Robinson awas good, non- that he had never once seen Robinson violent person “effectively kept out evi-
mate,” with whom problems. Gossard had mate, Kant, and Aaron a former teacher. respect showed prison to other offi- Smith testified about Robinson’s work cials. fields and hand-me-down clothes. Kant de- scribed Robinson as "poorest of the Maddox, 29. a crew migrant leader for farm poor.” Florida, workers in together began putting labor crews 1960s, early "about 31. Lovett's (1) affidavit only stated same time she [Robinson] traveling met doing around Robinson when she ííirm was 12 years work as a youngster.” old, (2) According Maddox, that she camps labor and Robinson "just very are "were plain rough.” close to age,” Maddox same also testified: "I that Robinson know [Robinson] carried (and been scars arrested allegedly them sent days, because he used to prison) talk about it "adult” some- they after had been "seeing times." See also (for- Affidavit of Albert Lee each other for eight about six or months.” migrant mer worker and investigator for the South Migrant Legal Services Pro- Baby Boy Hester bom to Robinson's gram). grandfather, also Baby known Boy, after Robinson left Baby Grandfather Boy's house. 30. See Troy Affidavit of Hester. Other exam- ples include Smith, Ernest a former class- *20 inter- on the car a disabled with woman sexual similar, violent very very aof dence that emphasized It at Id. 696. state.” sub- committed” [Robinson] assault exact almost were an crimes “alleged these The murder. George’s to sequent Ms. St. happened with of what replay evi- “this had that determined court 3.850 Id. murder.” the minus George, chance no be in, would there come dence life.” recommended have would jury the Supreme reasons, Florida the these For of much that noted also court 3.850 The prob- that no reasonable determined Court was cumula- evidence mitigation new the evidence mitigating the that ability existed the to presented been had of what tive to presented and gathered subsequently those of and cumulative jury resentencing the altered have court 3.850 the by found factors mitigating nonstatutory fac- mitigating aggravating of balance court.33 trial state the Thus, Florida Su- the case. tors in court’s affirmed the 3.850 Court Supreme affirmed Court preme Florida The motion resulted prejudice 3.850 no that of denial the determination Robin- as rehearing. concluding request representation, subsequent Pearl’s Florida The aggra- 688. five valid III, “Considering 707 So.2d the son follows: that, “although prof- of the concluded nature Court Supreme cumulative vators, the defi- been may have modification performance the testimony, and lay counsel’s fered cannot respects, no error some find testimony, cient we Krop’s of prejudiced so he was that has that finding demonstrate court’s trial the proceeding.” phase penalty necessary amerit new prejudice to demonstrated out pointed court That at 695. Id. 697. Id. at relief.” mandate to provided information new “despite prej- on the this case deciding Although counsel, still believes Krop postconviction Strickland, Su- Florida of prong udice personali- type some has that per- Pearl’s on did comment Court preme type some has still ty disorder should “Pearl that opined It formance. It rea- at 697. Id. disorder.” sexual more direct- proactive more been have mitigation new of the much that soned and, investigation Krop’s with ly involved” non- for the As cumulative. evidence prob- sense, performance that “[i]n lov- about evidence cumulative howev- part, large In Id. ably deficient.” other women with relationships ing indicated Court Supreme er, Florida evidence, character It effectively. performed Pearl that opened this would concluded Court solely rely to decision Krop’s noted one than less “evidence door “questionable,” testimony, while Krop’s murder, Robin- George the St. after week And, pointing Id. “defensible.” robbery was armed committed allegedly son rape, robbery and armed subsequent upon coming after Fields rape the result were alleged inaccuracies other argu- Robinson's rejected court 3.850 informa- having provided of Robinson’s investigate miti- failure Pearl’s ments event, court 3.850 any In presentation to Pearl. (1) tion led to gation evidence allega- resentencing if Robinson's even prejudice, arguments found inaccurate competency being unable to the Krop As true. led were tions jury, exam, examina- found health court competent mental 3.850 perform Krop's accu- Pearl was “minor diagnosis found change court The 3.850 tion. later Krop’s jury that to the represented rately at best.” prison and life his adult spent most *21 1342 Head,
the Florida Court stated that (citing 1215 Williams v. 185 F.3 d 1223, (11th trial court could have Cir.1999)), “[t]he concluded that 1226-27 cert. de — Pearl not opening nied, ineffective -, 2310, U. S. 122 S.Ct. 152 potentially devastating (2002). the door to this case, L.Ed.2d In 1065 this howev rebuttal Id. er, evidence.” both Court and the district court pursuant
are reviewing, to 28 U.S.C. 2254, § judgment a final state on Robin V. FEDERAL HABEAS 2254, by son’s claim. Section as amended PROCEEDINGS' the Anti-Terrorism and Effective Death Penalty (“AEDPA”), Act Pub.L. No. 104- 30, 1999, April On peti- Robinson filed a 132, establishes a highly deferential stan tion for a writ of corpus habeas federal dard for reviewing state court judgments. 2254, § court under 28 U.S.C. reasserting 2254; § See 28 U.S.C. Williams v. Taylor, that Pearl was ineffective resen- 362, 402-03, 1495, 529 relief, U.S. 120 tencing.34 In S.Ct. 146 denying the district (2000).36 L.Ed.2d 389 court concluded that the Florida courts’ application of Strickland was neither con- First, 2254(e)(1) § provides for a highly to, trary nor an ap- involved unreasonable deferential standard of review for factual of, plication clearly established federal law by determinations made a state court: by as determined the United States Su- “[A] determination of a factual issue made preme Court. Robinson timely appealed by a presumed State court shall be to be pétition. § the denial of his 2254 This correct. applicant shall have the bur granted Court of appealability certificate den of rebutting presumption of cor (“COA”) as to whether Robinson received by rectness clear convincing evidence.” ineffective assistance of counsel during his 2254(e)(1). 28 § U.S.C. Fugate, 261 F.3d resentencing.35 1215; Moore, 526, v. Bottoson 234 F.3d — (11th Cir.2000), denied,
531
cert.
U.S.
VI. STANDARD OF REVIEW
-,
357,
122 S.Ct.
“In appeals involving claims counsel, 2254(d) Second, ineffective assistance of § we tradi allows federal habeas tionally review the findings district for adjudicated court’s relief a claim on the merits of fact for clear error and its legal conclu only state court where adjudication questions sions and “(1) mixed of law and fact in state court resulted in a decision Head, de novo.” Fugate 1206, v. to, 261 F.3d contrary that was or involved an unrea- 34. any Robinson has not raised issue con- flict of separate interest. That for claim re- cerning lief, constitutionality capi- by of Florida's denied the state courts and the district sentencing court, tal original § scheme in his 2254 is scope outside the of Robinson's COA. (filed 30, 1999), petition April States, on Murray 1249, in his See v. United 145 F.3d (filed 2, § petition (11th Cir.1998) amended ("[I]n January appeal brought an 2001), request inor certificate petitioner, unsuccessful habeas appel- (filed appealability in this Court on October late review specified is limited to the issues 29, Thus, 2001). COA.”). we do Ring v. discuss - Arizona, -, 2428, U.S. 122 S.Ct. (2002). L.Ed.2d 556 petition 36. Because Robinson’s was filed in 1999, review, April our like the district court's, AEDPA, 35. We argument do not consider Robinson's governed by which was his trial counsel had an April undisclosed con- effective as of
1343
of, clearly
Supreme
da
Court
application
applied
established
identified and
sonable
law,
principles.
explain
those
then
by
why
the
We
the
as determined
Su-
Federal
(2)
Supreme
States;
ruling
Florida
Court’s
on
or
the
preme
of the United
Court
prejudice prong of Strickland was neither
in decision that was based on an
resulted
a
to,
contrary
nor
an
involved
unreasonable
determination of the facts
unreasonable
of,
application
clearly established federal
presented
the
in the State
light of
evidence
by
law as
2254(d).
determined
United
§
States
28
proceeding.”
court
U.S.C.
Supreme Court.37
2254(d)(1) ‘places a new
“Section
A. Governing Legal Principles
power
constraint on
federal habe-
It
is well established that
applica
grant
prisoner’s
as court
state
Supreme Court’s
decision
Strickland is
corpus
tion for a writ of habeas
with re
“controlling
ap
legal authority” to be
adjudicated
to claims
on the merits
spect
plied to ineffective assistance of counsel
by requiring
in state court’
satisfaction of
Williams,
406,
claims.
529
at
U.S.
120
one of
conditions for issuance of the
two
1495; Fugate,
S.Ct.
261
at
F.3d
1216. To
(quot
261 F.3d at
Fugate,
writ.”
1215-16
prevail
assistance,
aon claim of ineffective
Williams,
412,
529
at
120 S.Ct.
ing
U.S.
petitioner
incompetence
“must show both
1495).
Supreme
recently put
As the
Court
prejudice.”
Chandler v. United
it, AEDPA “modified a federal habeas
States,
(11th
1305,
Cir.2000)
218 F.3d
1312
reviewing
prisoner
role in
state
court’s
(en banc),
denied,
1204,
cert.
531
121
U.S.
applications
prevent
in order
federal
1217,
(2001).
S.Ct.
VII. DISCUSSION
phase
capital
sentencing
because the
sen
tencing proceeding is similar to a trial in
governs
ap
AEDPA
this
Because
its
format and
adversarial
counsel’s role is
peal,
controlling legal
we first review the
similar.”).38
Washing
principles under Strickland v.
2052,
ton,
668,
petitioner’s
104
“A
466 U.S.
S.Ct.
80
burden
establish
(1984),
ing
lawyer’s
performance
that his
L.Ed.2d 674
and whether
Flori-
deficient
Supreme
prejudice,
expect
37. The
Court did not decide
sufficient
which we
will of
Thus,
so,
followed.”);
prong
performance
be
be
of Strickland.
ten
that course should
1194,
nothing
opinion
Grayson
we stress that
in this
should
Thompson,
v.
257 F.3d
case,
concluding
implying
(11th Cir.2001) ("In
be read as
that Robin-
we need not
this
resentencing
performance
son’s trial counsel
decide whether counsel’s
any
Supreme
way.
The Florida
ineffective
Grayson
clearly
fact
because
so
fails
deficient
disposing
approach,
Court's
of Robinson’s
satisfy
prejudice prong
of the Sixth
prejudice prong
denied,
claim under the
and not re-
analysis."), cert.
-U.S.
Amendment
-,
solving
performance prong, is
con-
2674,
itself
(2002).
122 S.Ct.
1345
relief,
that,
(“To
Robin Court clarified
under
U.S.C.
merit
at 695
So.2d
2254(d)(1),
§
may
the federal court
perfor
only deficient
show not
must
son
the writ unless it finds that
state
issue
perfor
mance,
that the deficient
but also
applied Supreme Court law unrea-
court
defense
prejudiced
mance so
sonably.” Fugate,
(citing
We recognize that the resentencing jury aspects of his testimony, the State did not judge trial heard the evidence of miti- to, allude much less argue, “lack of corrob- gation through only Krop. However, Krop oration” during its closing arguments to
testified during resentencing that some of the resentencing jury. The State also did Robinson’s self-reported history had been not comment on the weight or amount of by corroborated persons with whom Krop nonstatutory mitigating evidence present- spoke, thereby adding credibility to Robin- ed by the defense. Instead, the State reports.47 son’s For example, Coreen and focused on the aggravating circumstances Earl Smith corroborated certain physical in this case and argued that those factors abuse, and Robinson’s biological father warranted “the punishment ultimate corroborated Robinson’s lack of contact nothing less.”48 Additionally, as we dis- Also, mitigation additional evidence in 48.See Poyck, Van 290 (con- F.3d at 1325-26 the 3.850 court concerning good Robinson's cluding that the Florida Supreme Court rea- behavior prison, in being addition to cumu- sonably found that trial counsel’s failure to lative, was specifically rejected by the trial present evidence the petitioner was not the judge as a factor not properly considered in triggerman during the penalty phase was not mitigation. Thus, that additional evidence prejudicial, part, because "being trig- might have all, been help no at at least in the german played only very a minor role” in the eyes of the judge trial who ultimately sen- prosecutor's closing argument, and stating tenced Robinson. "[especially prosecutor's because the main argument 47. Krop also that the penalty indicated to death ap- the resentencing jury propriate regardless based on his training, of who the triggerman he believed was, Robinson was probably we see telling the truth. reasonable probability that ...
1349
“never
he had
acknowledged
wit-
character
calling additional
infra,
cuss
The
a drink.
take
Robinson
seen
once”
testimony
Krop’s
corroborate
nesses
does
simply
evidence
mitigation
3.850
harmful
particularly
been
have
could
commit-
before
drank
Robinson
what
show
have
life,
may
as it
for
case
Robinson’s
.
ting murder.49
information.
damaging
door
opened
intoxication
event, emphasizing
any
In
presented
evidence
mitigating
murder,
aor
George’s
of St.
time
at
of
short
falls
proceedings
the 3.850
could
general,
drinking in
history of
mitigating
nonstatutory
the two
life before
proving
case
damaged
as un-
judge
the trial
257
by
Grayson,
See
rejected
jury.
factors
resentencing
during re-
testimony
emphasizing
Krop’s
(“[W]e
note
1227
supported
at
F.3d
and intox-
youth
the time
at
alcoholic
intoxication
petitioner’s]
sentencing:
[the
damaging
aas
been
may also have
(2) incarceration
offenses,
ication
jury.”);
of the
eyes
in the
petitioner]
[the
prison.
adult
in an
child
1327, 1338
Moore,
F.3d
193
v.
Tompkins
is not
evidence
mitigation
The additional
(“[A]
of alcohol
Cir.1999)
showing
(11th
of the
time
at
intoxication
probative
sword
two-edged
drug abuse
deals
evidence
Generally,
as
offenses.
capital defendant
harm
can
raised
having been
sentencing.”)
only with
at
him
help
it can
easily
drinking while
Jones,
F.3d
77
drinking and
Waldrop v.
around
(citing
F.3d at
Cir.1996));
saw Robinson
Clisby,
(11th
witness
No new
youth.
lawyers
many
indicated
(“Precedents
or
show
murder
of the
night
day
of al-
introducing evidence
alcohol
fear
amount
justifiably
of the
knowledge
any
Zant, 13
v.
use.”); Rogers
drug
to the
drinking prior
cohol
reported
Cir.1994) (noting rea-
(11th
384, 388
F.3d
miti-
of the
Indeed,
majority
murder.
defen-
fear that
lawyer’s
sonableness
seen
witnesses
gation
use
alcohol
drug and
voluntary
dant’s
any point
less
much
years,
for several
aggra-
jury as
by the
“perceived
be
could
And
murder.
George’s
St.
in time
close
(emphasis
mitigating”)
vating instead
employed
who
Maddox,
man
original).50
murder,
George’s
before
years
proceed-
in the 3.850
evidence
Probative
heard
what
only as to
allegedly
to Robinson’s
regard
habits,
ings
drinking
general
about
*28
have
not
mended,
would
court
the trial
sentencing phase would
the outcome
sentence.”).
death
imposed,
different”).
been
have
915,
(11th
Moore,
F.3d
v.Hill
49. See
testimony indi-
Krop's
not find
do
We also
50.
peti-
mitigation]
Cir.1999) ("The
[of
evidence
review, he
that,
3.850
his
cating
based
drug use
his
regarding
proffered
tioner
diagnosis for
abuse
alcohol
an
consider
would
largely irrelevant....
is
murder
day
factors
changes
balance
Robinson
cannot,
not,
that
show
has
Petitioner
considering
all
First,
after
even
case.
this
cocaine
amount
any measurable
there was
con-
counsel
3.850
procured
evidence
end,
he
only evidence
In
blood.
in his
Robinson,
interview
ducting another
claim
his
support
would
proffered
has
having
diagnose Robinson
not
Krop could
robbery is
during tire
intoxicated
he was
Second,
if
even
disorder.
abuse
alcohol
an
they had
accomplice the statement
prece-
these
diagnosis,
this
made
Krop had
evidence
That
day.
drugs that
using
been
"mitigation” evidence
demonstrate
dents
prob-
a reasonable
demonstrate
insufficient
prob-
abuse
possible alcohol
to a
pertaining
evidence
put that
ability
had counsel
life.
case
hurt
have
could
lem
recom-
have
not
would
jury,
before
having been incarcerated in an adult pris-
it would have allowed the State
present
on as a child is similarly lacking. Robin-
evidence that only
days
five
after murder-
son’s 3.850 counsel
proffer
did
police
ing and raping
George,
alleg-
report dated at a time when Robinson
edly raped and robbed another woman,
would
have been
police
and that
report
Bashford,
Jennifa
in similar
circum-
lists Robinson’s age
best,
as 19. At
how-
stances.53
ever,
police
report
corroborates
Discussing
subsequent
robbery and
Krop’s testimony during resentencing that
rape,
the Florida Supreme Court noted
Robinson had lied about
age
when he
that “Jennifa Bashford and three others
was arrested during his childhood. But
were robbed in the early morning hours”
police
report is
proof
not
that Robin-
five days after St. George’s murder, son actually was sent to an adult prison for
after that robbery, “Ms. Bashford was al-
(or
that offense
any
offense),
other
much
legedly raped by Robinson.” Robinson
less that Robinson
any
served
substantial
III,
1351 mitigat present to failure the that murder, eluding and rape George’s St. after days abusive and deprived aof ing evidence con- another, prior had Robinson that and defen capital prejudice not did childhood evidence mitigation this rape, for viction govern of torture-murder for Robinson; at trial dant helped have certainly not would Wainw v. informant); Thompson ment to devastating been have indeed, it would Cir.1986) (11th 1447, 1453 F.2d right, sentence.55 a life for request his counsel nothing trial (concluding that egregious particularly the Finally, given penalty the [during presented have “could murder, the George’s surrounding St. facts testimony the rebutted have would phase] evidence mitigation limited, noncumulative in the Thompson’s participation concerning his- formal (which primarily murder”)). torture brutal been not have would employment), of tory committed was offense Here, capital sentence affect toas powerful so and kidnapping a of both course noted, has this Court As case. this resentencing jury “ rapes, and repeated mur- involve cases penalty ‘[m]any death St. that evidence heard judge trial accom- or carefully planned, are that ders start. handcuffed was George kidnapping.”’ torture, or rape panied Rob- when removed were handcuffs (11th Those 1383, 1390 F.3d Turpin, v. Dobbs George, St. with had sex Fields inson added) Jack- (quoting Cir.1998) (emphasis Fields, Robin- then, according even but types 1369). “In these at son, 42 F.3d Fields gun. on his kept his hand sta aggra- that the has found cases, court this wheth- asking was George that St. out- crime circumstances vating not “begging” be killed she would er lawyer when caused any prejudice weigh resolve not need This Court killed. to be Id. evidence.” mitigating present fails But murder. “torture” aas (con- qualifies what 703-04 Francis, F.2d at (citing initial Moreover, his Krop’s modification trial resentencing jury and before tacts Su- Florida As the minor. diagnosis was raped murdered Robinson judge—that re- it, 3.850 after his even put rape Court preme of anoth- parole on while George has Robinson that view, "Krop still believes er woman. has still disorder personality type of some evi- if the even III, contends 55. Robinson disorder.” sexual type some relationships with positive he had dence Indeed, 3.850 during the at 707 So.2d presented, been have not women should ini- not out rule Krop could proceedings, uncovered least have should counsel trial an antisocial diagnosis tial Krop so provided it that evidence disorder. personality men- "competent provided have Krop could its unreasonable objectively Court however, nev- Krop, examination.” tal health modifica- Rrop’s minor determination he counsel Robinson's er indicated the balance affected not have tions otherwise information needed more this case factors aggravating mitigating and diagnosis initial rendering his uncomfortable mitiga- new along with the considered when impor- More he had. information aggravators. valid the five evidence tion argue how does tantly, Krop’s an additional observation — trial add by his We resentencing prejudiced have did not testimony this Krop with 3.850 provide failure counsel’s actually have (or could any disorder psychosexual evidence relationship-with-women life; in- case for pro- 3.850 to Robinson's presented harmful evidence been other Robin- addition, found Krop relied deed, specifically if court trial ceedings). In evidence, nonstatu- be a relationship-with-women disorder psychosexual son's opened and also out brought been factor. mitigating tory could *30 rape. robbery and subsequent the door 1352
we are
that,
certain
at
least
eyes
of won by defendants. Strickland and sever
the resentencing jury, the taking at gun-
al
our cases reflect the reality of death
point, handcuffing, raping
times,
three
and penalty litigation: sometimes the best law-
then being shot twice in the head at point- yering,
just
reasonable lawyering, can
blank range, were collectively acts that
not convince the sentencer to overlook the
tortured St. George.
facts of a brutal
or, even a less
murder —
brutal murder for which there is strong
rape,
kidnapping, and
particu-
other
evidence of guilt
fact.”)
(emphasis in
lar circumstances surrounding
George’s
original) (citing Strickland, 466
at
U.S.
murder, then, lend further support for the
696, 104
2052);
S.Ct.
Daugherty v. Dugger,
Supreme
Court’s determination
839 F.2d
(11th
1432
Cir.1988) (con
that Robinson’s sentence would have been
cluding that “given the severity of the
same,
even if certain evidence of Rob-
aggravating
circumstances,”
failure to
inson’s formal work history, or other trou-
present psychiatric testimony was not
bling aspects of
childhood,
had been
prejudicial);
sentencing concerning defendant’s physical abuse as a child, substance For abuse prob- foregoing reasons, the district lems, and mental deficiencies); court Clisby, properly concluded that the Florida F.3d at 1057 (concluding that there was no Court’s decision—that Robinson prejudice from failure to present additional not demonstrated the prejudice neces- mitigating evidence at capital sentencing sary to mandate relief —was neither con- and stating, “[W]e are aware in reali- to, trary nor involved an ap- unreasonable ty, some cases almost certainly cannot be plication of, clearly established federal law 56. Robinson’s reliance on Collier v. Turpin, his arrest for the commission of another felo- (11th F.3d 1184 Cir.1999), misplaced. ny.” Id. at 1203. The number of aggravating case, Unlike this the murder in Collier did not present factors case, in this in stark contrast a rape involve or kidnapping, or other Collier, facts renders Collier poor guidepost for present Instead, here. Collier, “[t]he first determining whether the Florida Supreme two factors listed by the district general court Court was objectively reasonable in evaluat- ly represented] the aggravating circum ing prejudice in this case. For similar rea- stances of Collier's murder sons, conviction: he Turpin, Dobbs v. (11th F.3d 1383 police killed a officer trying while prevent Cir.1998), also help does not Robinson. *31 Su- States United determined 2254(d)(1). § 28 U.S.C. See Court. preme de- court’s district Thus, AFFIRM we petition. § 2254
nial Judge,
EDMONDSON, Chief judgment:
concurring in deciding AEDPA, understand
As I or labori- complicated accurately is case perti- accept easily I task. ous Court decisions
nent did to and contrary were clearly applications unreasonable involve law. federal
established Claimant-Appellant, ARNESEN, O.
Tore
v. Secretary of PRINCIPI,
Anthony J. Respondent- Affairs,
Veterans
Appellee. 02-7017.
No. Appeals, Court of States
United Circuit.
Federal 23, 2002. Aug.
Decided: 17, 2002. Sept.
Rehearing Denied: