*4 HULL, PRYOR, Before WILLIAM MARTIN, Judges. Circuit HULL, Circuit Judge: Florida death row inmate Anton Kraw- czuk appeals the court’s denial district *5 U.S.C, § his 28 2254 petition for a writ corpus. habeas At issue is Krawczuk’s claim that his counsel rendered ineffective investigation assistance presen- and tation of during penalty phase proceedings. After review with the argument, and benefit oral we conclude the state court’s denial ineffective claim to, not contrary or an unreasonable of, application clearly established federal law, nor was it on an based unreasonable Accordingly, determination the facts. we affirm the coürt’s district denial Kraw- § petition. czuk’s 2254
I. BACKGROUND proce- We first recount the evidence and history. dural Robbery A. Murder and September On Krawczuk and Billy his roommate brutally Poirier mur- and dered robbed David Krawczuk Staker. State, (Fla. 1994) 634 So.2d (“Krawczuk I”). Both Poiri- Krawczuk and er, County, who shared a home in Lee Sigelmier, bought to of Gary home who Florida, sexually involved with Stak- were months, and leading up agreed to the some of the stolen items to during er planned and Poirier Krawczuk store the rest. Id. 1071-72. murder. ¾ robbery days three four the murder and body then into and Poirier Staker’s loaded abandoned, out the advance,'-arranging carry vehicle, their own Staker’s visiting at his crimes Staker home. while area, to a truck, pickup drove rural Id. scouted which had before murder, body. dump Staker’s Id. murder,
The night body Staker’s They discarded in the together Poirier home. Id. went Staker’s woods left. Id. brought 'gloves with them use They parked carrying while out the murder and away distance their from vehicle some Confession, Investigation, B. In- After house. the three men victim’s dictment for living room
watched television following murder, days In'the Stak- minutes, sug- thirty twenty Staker employer er’s noticed that gested they to the go Id. bedroom. up picked up pay- shown work .or of other events in the After a series looking for check. Id. went at 1071. She bedroom, gloves, Krawczuk retrieved home, she at his where found the St'aker began acting aggressively, proceeded open looked like door the scene and what with both hands. Id. choke Staker of a robbery. immediately contact- Id. She Meanwhile, by holding assisted Poirier County ed Lee authorities. Id. pinching his nose Staker’s mouth shut fought back and even closed. Id. Staker On September authorities Staker’s, lamp, tried to hit Krawczuk with a but body, found a as later identified Poirier able overtake Staker and County, in wooded Charlotte area .in. lamp away. wrestle Id. almost month, After *6 Sigelmier Florida. Later that Id. minutes, ten Staker relented. See Be- id. reported County the Charlotte to Sheriffs it,” might “faking lieving that Staker bought property office stolen from that he however, poured Krawczuk twice drain acquired Staker’s home and that he had it cleaner into Staker’s and water mouth un- from Krawczuk Poirier. and Id. it a til overflowed. Id. Poirier then stuffed 1990, 18, September. depu On sheriffs into washcloth Staker’s mouth and covered County ties from Coun Lee and Charlotte tape. then with Id. Krawczuk bound ty to went Poirier’s home Krawczuk and ankles, deposit- Staker’s and the assailants took custody. and both men into Id. at It body ed the Id. later bathtub. was waiving rights 1071-72. After asphyxia that died of Staker determined Arizona, 436, Miranda v. 384 U.S. 86 S.Ct. strangulation. and 1602, (1966), L.Ed.2d Krawczuk their accordance with established I, confessed to Krawczuk Staker’s murder. plan, and Poirier then a stole So.2d 1072. possessions, including number Staker’s grand On a jury October indict- sets, equipment, a television stereo video (1) for rifles, ed first recorder, Krawczuk and Poirier pistol. They a de- fivе and Id. (2) murder, premeditated gree degree into first pickup loaded these items Staker’s felony murder, robbery.1 truck, and along body, drove with Staker’s and I, thirty-five years’ imprisonment. pled guilty Poirier second Codefendant degree exchange sentence So.2d at 1072 n.2. a murder Regarding Ag- C. LeGrande’s Letter In his April report, Dr. Keown gravation Mitigation and summarized Krawczuk’s history brief health mental treatment. When Krawczuk 8,1991, On March Krawczuk’s appointed old, years or eleven twelve he attend- counsel, LeGrande,2 Barbara a wrote ed counseling court-ordered because explaining letter to impor- tendency get into trouble away and run of aggravating tance mitigating and cir- Later, during from home. his time serving capital cumstances ain case. She informed Marine, as a United States Krawczuk was she reviewed his had mili- to military psychiatrist referred because tary provided records and them to Dr. of Krawczuk’s “apathetic and disinterested Keown, Richard C. who psy- conducted a life, attitude marine about suicidal inten- chiatric evaluation of Krawczuk. In her tions, military conflicts with and life.” Dr. letter, included list of LeGrande all the report though Keown’s noted that the mili- statutory aggravating fac- tary psychiatrist no identified evidence of tors that be considered by jury would neurosis, syndrome, psychosis, brain or judge in determining whether to sen- thoughts, homicidal suicidal she find did Krawczuk to tence death. that Krawczuk per- suffered from mixed letter, In her predicted LeGrande sonality disorder and exhibited traits like five aggravating factors the State would immaturity, passive-aggressiveness, try prove evaluated likelihood personality patterns. antisocial the State in proving would succeed copy of had forwarded a Krawczuk’s mili- each one. LeGrande mitigat- identified five tary Dr. Keown. Dr. records to Keown’s ing factors that prove she intended highlighted report that Krawczuk was “of explained Krawczuk’s behalf and average intelligence at least no signif- proving most of them require Kraw- coghitive icant deficits.” testify explained czuk to trial. She As to family history, Dr. Krawczuk that facts—including pre-plan- Keown noted that Krawczuk had no mean- murder, ning the pouring drain cleaner ingful relationship father, with his that his throat, down the victim’s hiding mother physically verbally abu- body—would probably jury cause the sive, and that his' stepfather often beat return a of death. recommendation
him. Krawczuk told Keown family poor life misbehavior, drove him Psychiatric D. Dr. Keown’s Evaluation *7 truancy, and activity. even criminal Report During pretrial proceedings, serving Marines, counsel While in the sought (1) LeGrande a psychiatric funds for disciplined fighting was and misus- evaluation to both ing military (2) determine equipment, was court sanity at the time of the evaluation and his being away leave, martialed for without mental state at the mur- time six in military served months con- Stáker’s granted The state trial der. court Kraw- eventually finement. Krawczuk received czuk’s motion and ordered an separation examination military administrative from his Keown, prepared psychiatric Dr. who explained service. Krawczuk also to Dr. report findings. of his Keown that “he would rather have death ¡Krawczuk, representing 2. At the ously time capital her to seventeen cases'. appointed previ- Counsel LeGrande had been acknowledged understanding that the twenty-five years jail” if he than proceedings penalty phase would include a guilty. found to determine whether death would be an Ultimately, Dr. Keown found that Kraw- appropriate sentence. The state court depressive symp- from mild czuk suffered explained to that he was entitled require not Dr. toms but did medication. jury to have a make this determination com- Keown concluded that Krawczuk was phase that during penalty to stand trial and was at the petent sane great carried jury’s recommendation 8, 1991, By May time Staker’s murder. weight. had received Keown’s re- phase proceedings, Kraw- penalty from As to port LeGrande. to czuk affirmed he wished waive Suppress E. Pretrial Motion to Confes- jury in favor of a determination determina- sion court and that he did tion the state trial present any mitigating evi- 8,1991, want a motion July On Krawczuk filed confession, why he dence. intended suppress which the state When asked guilty opportunity plead trial court and waive trial court denied. Id. The state evidence, Krawczuk an- present mitigating confession determined Krawezuk’s given it was volun- that he “shouldn’t be allowed to was admissible because swered of, waived, tarily after live for he was advised what did.” [he] rights. his Miranda M. hearing, At the state trial court plea also with Krawczuk he addressed whether Guilty Change Hearing of Plea F. representation satisfied Plea By a letter to the trial court LeGrande. 27, 1991, Krawczuk in- September On April Krawczuk had re- dated trial court that he intend- formed the state quested that be dismissed and LeGrande to all plead guilty three counts ed counsel. appointed that he be different degree premeditated indictment—first hearing, course at the reversed murder, murder, degree felony first however, stating that he was satisfied with requested penalty. robbery—and the death representation longer and no LeGrande’s hearing on state trial court held a Id. The addition, In wanted her Kraw- removed. change plea. Krawezuk’s reported czuk that he and LeGrande had outset, fully implications of his At the Krawczuk informed the discussed prescribed guilty plea. trial court that he was state increasingly ner- Elavil because became plea hearing, Before LeGrande had days leading up in the to the trial and vous filed a motion for funds to hire help calming had a effect to the medication expert, Krawczuk dismissed mo- but Krawczuk took this sleep. him Id. hearing. explained tion at the hearing, day but he medication Krawczuk not she advised and, rate, any not feel its effects could guilty prepared plead and was making him from prevent rea- did particular, mitigating evidence. Le- *8 his Krawczuk plea. soned about decision planned testimony Grande had never suf- stated that he otherwise Wise, of Dr. Paul Krawezuk’s Keown and before. fered from mental illness coworker, Krawczuk instructed her not but colloquy, in- to. intimated she During plea LeGrande would evidence, adjudi- an but that he understood that additional dicated specify in what evidence. guilt cation of for murder could result she did Le- penalty. Krawczuk Grande understood under Florida imposition of the death law, right Krawczuk’s instruct waiver. The agreed state trial court trial, not to present jury her ordered a place which took 5,1992. February The state trial court found Kraw- competent, jury began, czuk was Before determined selection guilty plea reiterated that he freely was entered and volun- did not want LeGrande in participate any part tarily, adjudicated penalty him guilty of first trial, phase including selecting jury, degree premeditated robbery. murder and cross-examining witnesses, pre- State’s Following G. Krawczuk’s Letter Sen- senting mitigаtion making or tencing Hearing closing argument. again LeGrande ex- plained that she had advised Krawczuk accepted After the state trial court against this course of action. When asked plea, guilty September wrote a why course, he had chosen this 30, 1991 letter to reiterating replied: just “Because I basically feel desire to be sentenced death and ex- twenty-five years opposed as to a death pressing hope guilty plea that his would penalty same, is way you one either help receiving ensure his penal- death it, look your gone.” life is ty: Later colloquy occurred: As for my sentencing hearing, you do THE my COURT: It’s understanding my I can goal receiving feel achieve your from I don’t remarks—and want the death sentence? From the sounds put your your words in mouth. But re- it, very prosecutor] [the is much for it as sponse taking action, for this course of well, By my isn’t pleading guilty he? principal one reasons is that the charges, increase doesn’t sentence with life the minimum me, aggravating against circumstances mandatory um, twenty-five years, is basically my ensure death penalty? equally abhorrent and undesirable to all, assisting After I am prosecution you, as would abe death sentence. proving my their guilt, total aren’t you Would equivalent consider them for I? your purposes? letter, In that same Krawczuk lauded Le- Yes, MR. KRAWCZUK: Sir. representation, stating: Grande’s colloquy, After extensive the state trial concerned, you As far as I’m prov- have court determined that Krawczuk was com- shining example lawyer, en to be a for a petent, that he understood the conse- I nothing praise you have but for decision, quences of his that he was arid your work. You have [and] examined sufficiently intelligent to make this deci- every each I aspect, as have re- sion. quested. fact, I you feel that have jury After a impaneled, actually done far more than was the State re- gave opening its If I statement. Neither Le- quired. put you in a bind nor Krawczuk any opening Grande made pleading guilty, my it wasn’t intention. statement. The proceeded State then with counsel, you my Thank as remaining its case. through phases. this most critical of all The State’s first witness was Staker’s Penalty Proceedings
H. Phase roommate, Staub, Charles who identified guilty plea, After Krawczuk’s sepa- night several of items stolen on the 29,1991, rate hearing on October the State the murder. The State called Pete then argued penalty phase Sbabori, jury trial before a investigator Charlotte necessary despite County Office, Sheriffs helped who had *9 evidence, explained Kraw- investigated LeGrande that body,
identify had Staker’s he -willingto this for czuk do not because murder, present Kraw- was was the and penalty death as avoid the but wished to arrest. czuk’s her way helping discharge LeGrande witness, Gary Sigelmier, the third testi- his prevent as trial to duties counsel.and and about he met with Krawczuk fied how ap- being on death sentence overturned the murder night Poirier on the and peal. stolen agreed to the buy and store items court it was The state trial hinted that pre- from also Staker’s house. The State report to Dr. to inclined allow Keown’s testimony Tamayo, sented the Ed evidence, but into Krawczuk admitted County sergeant-with Lee the Sheriffs his mind and directed abruptly changed Office, the that investigated report who report not to the dur- introduce LeGrande missing, items stolen Staker was recovered case., penalty phase then ing Krawczuk house, present for Staker’s and wаs from before, to stated, that he as not wish did arrest. testify mitigating evidence any Iraani, Dr. R. H. the Medical Examiner directing he was and that LeGrande County, for the District of Charlotte testi- closing argument. again, any Once make expert pathology. fied in forensic as represented that she performed autopsy Imani the Staker’s strongly against advised Krawczuk body that Staker and' determined died course action. Krawczuk also stated strangulation. asphyxia from he wish the reflect did not record Savage, The called Michael State then their his decision due to reasons for County the Charlotte Sher- detective “very personal” nature. Office, helped investigate iffs Staker’s who n n As wished, rested the defense Savage Detective was murder. any presenting evidence. After without rights waived Miranda when argument, final State’s defense waived killing Staker. and confessed At end opportunity its do same.- played presence, the jury’s In the State phase, jury unanimously penalty confession, tape Krawczuk’s an audio penalty. the death recommended gruesome detail how explained which he Spencer Hearing Sentencing I. pre-planned and carried out
he
Poirier
murder,
Staker’s, house,
robbed
Staker’s
1992,
February
On
the state trial
During
body.
disposed of Staker’s
Spencer
pursuant
hearing
held a
court
moti-
confession,
he
asked
why
State,
when
(Fla. 1993).
Le-
So.2d
Staker,
to kill
Krawczuk stated
vated
again stated that she
Grande
intended
homosexual
from the
he
“frustrate[ed]
psychiatric report
Dr. Keown’s
introduce
where he lived
community
thrive[d]”
but
di-
as
it,”
to exterminate
Nonetheless,
and that he “wanted
her not to.
the state
rected
making
trial court
its
indicated
rested
outside the
After
State
determination,
sentencing
it would take
jury,
court
the state trial
presence of
into
Dr. Keown’s psychiatric
account both
issue of
Kraw-
again
whether
raised
investigation
presentence
report present any mitigating
czuk intended
I, 634
So.2d
report.
Initially, Krawczuk indicated
February
allow the
On
might
introduction Dr.
state
to death.3
court sentenced Krawczuk
Id.
as
psychiatric report
Keown’s
conviction,
robbery
to fifteen
trial court sentenced Krawczuk
state
3. As to Krawczuk’s
*10
Based on the
state
court
claims. Id. After a hearing pursuant
State,
statutory aggravating
found three
(Fla.
factors: Huff
1993),
v.
at 1074. The Florida con- Court Family Background A. and Social alia, cluded, inter sufficient evidence brother, Christopher twin supported Krawczuk’s murder conviction - Krawczuk, testified about his and Kraw- and that state trial court adequately czuk’s They difficult childhood. never had psychiatric report considered Keown’s father, relationship much of a with their presentence investigation and the report in infancy. Christopher who left their reaching its sentencing Id. decision. heard that heavy their father was a drink- 1073. mother, who er violent often with their The United States Court de- childhood, Patricia. For much of their for petition nied Krawczuk’s writ of certio- mother, boys were raised their who was Florida, rari. 513 U.S. especially verbally physically abusive 115 S.Ct. L.Ed.2d toward Krawczuk and often out ex- doled (mem.). punishments. got treme When Krawczuk II. STATE matches, playing for trouble POSTCONVICTION with
PROCEEDINGS example, their mother Patricia once forced him to gas hold his hand over a stove lit 3, 1995, On October filed his burner. boys She also used to strike the motion for postconviction initial state relief metal wand of a vacuum cleaner. Rule 3.850 Rules of Florida himself, State, When Krawczuk their soiled Criminal Procedure.4 Krawczuk v. (“Krawczuk (Fla. 2012) mother made him walk down street So.3d II”). wearing sign reading, my On March filed “I do doodie raising twenty amended 3.850 motion my pants every day.” four never con- years’ Procedure, imprisonment. Florida Rules of Criminal which governs postconviction now motions filed vyho postconviction petitioners filed his been motion sentenced to death. prior adoption to the of Rule See 3.851 Fla. R. Crim. P. 3.851. *11 testi- she would have have was unsure whether Christopher, but he would tacted willing testify. during penalty phase, but been fied Krаwczuk’s willing to talk she at least would have been Calabro, who Krawczuk’s married Santo to LeGrande. mother, Krawczuk’s also testified about home life. Calabro felt turbulent Wise, Krawczuk’s former Paul coworker most Patricia directed mother Krawczuk’s roommate, that Krawczuk and testified pun- Krawczuk and anger her toward moody often was a hard worker but was her other severely more than ished him Socially, occasionally marijuana. and used only She not denied children. as loner and a described Krawczuk Wise subjected also him to affection but her “follower.” to testi- Although willing beatings. violent (cid:127) wife, Nelson, Krawczuk’s former Judith fy, was contacted. Calabro never that she Krawczuk married in testified and friend, Todd childhood Krawczuk’s together, one and divorced child Kaase, vio- the mother’s also witnessed year marriage. a half of after about a and was lence to Krawczuk. When Krawczuk Nelson, he was married to Kraw- While old, years fifteen or sixteen around marijuana daily on a basis and czuk used lived full escaped his mother’s abuse and occasionally speed. took Krawczuk was family. During year time Kaase’s com- very and had a hard time affectionate family, with the Pa- Krawczuk lived Kaase her, also municating with but Krawczuk visited or even called to check tricia never good enjoyed times she had a side and at contacted, Although on Krawczuk. never willing testify. company. have been Kaase would testi- Krawczuk’s mother Patricia also issues told Nelson about the upbringing. Krawczuk’s She de- fied about childhood, during including he faced as father a “brutal scribed Krawczuk’s mother abusive behavior. Nelson Patricia’s man” who drank and beat her while she relationship with Patricia positive had a pregnаnt with Krawczuk and Christo- Krawczuk, during marriage to but her physically and pher. verbally Patricia was things turned sour after the divorce when children, espe- all her but abusive toward remarry. Nelson decided cially he was an toward because Poirier, highly not think Nelson did difficult unaffectionate and child. Patricia Poirier Krawczuk’s codefendant. affection, him tried to show love and but together, a lot of spent time “aloof.” Krawczuk was eventually they spent Nelson learned dealing with Patricia had a hard time “doing swap things” sex some this time misbehavior. When Krawczuk Krawczuk’s burglarizing Although Nelson homes. old, only or sixteen for years fifteen always testified Poirier emulated instance, stealing he was arrested cars behavior, she felt that Poirier Krawczuk’s spent youth in a detention facili- time friendship in their had more influence way as a ty. Patricia beat Krawczuk organized one criminal was the who their disciplining “incorrigible” him for his be- activity. havior. found out that Krawczuk When Patricia Experts B. Health Mental murder, jail for was in Staker’s she called During hearing, 3.850 Krawczuk also visiting him. LeGrande about testimony of two mental presented the from Patricia surprised seemed hear Dr. experts: Barry Crown and health Dr. again regarding and never contacted her penalty phase Faye trial. Patricia Sultan. Crown, psychologist, disorder, testified sive-compulsive as general and a expert in neuropsychology spe- awith personality disorder. Dr. Sultan described drug cial focus on child abuse and addic- Krawczuk passive person as a who was tion. Dr. Crown Krawczuk and interviewed easily influenced and exhibited traits con- neuropsychological administered tests sistent personality with antisocial disorder. relationship determine the between his Crown, Likе Dr. Dr. Sultan determined brain function behavior. Dr. Crown did that *12 statutory two mitigating factors ap- any background not review materials or plied at of time Staker’s murder: previous psychiatric information before Krawczuk was under the influence of an evaluating Krawczuk. or extreme mental emotional disturbance evaluation, on Based his Dr. Crown and he was unable conform his conduct found that Krawczuk had normal intellec- requirements of the law. As to non- intellectual, functioning poor tual but effi- statutory mitigators, Dr. it Sultan found ciency, thinking with the critical skills of a (1) relevant that Krawczuk: was aban- ten-year-old and the processing mental father; (2) doned his was isolated dur- skills of a thirteen-year-old. Dr. Crown childhood; (3) ing supervised was not also signs found that Krawczuk showed of childhood; (4) during his sustained neu- organic damage, brain likely which was ropsychological (5) damage; had mental to developmental related issues and was (6) disorders; endured emotional and aggravated by drug head trauma and (7) physical abuse; experienced depres- alcohol statutory mitigators, use. As to Dr. sive symptoms; and suffered sexual opined Crown that at the time of Staker’s abuse. murder, Krawczuk under the influence When asked about Krawczuk’s decision anof extreme mental emotional distur- not to mitigating bance capacity and lacked the to conform penalty phase, opined Dr. Sultan requirements conduct of the law. Krawczuk’s mental likely disorders influ- Sultan, Dr. psychologist, also a testified felt, enced this Dr. decision. Sultan also expert as an of psychol- the field clinical however, that thinking Krawczuk’s ogy with a focus on the assessment and Elavil, impaired by antidepressant of treatment victims abuse. Dr. Sultan taking medication he was the time separate met with on oc- Krawczuk seven plea hearing. casions, psychological formal conducted testing, background materials reviewed C. Barbara LeGrande provided by postconviction Krawczuk’s Trial counsel LeGrande about testified counsel, Dr. neuropsy- reviewed Crown’s representation her of Krawczuk. LeGrande chological report, spoke with several recalled that Krawczuk asked her not to family members present mitigation it and was her friends. understanding that Krawczuk was entitled research, Through background her Dr. to make At his own. that decision Sultan learned that Krawczuk suffered se- decision, time Krawczuk made this Le- vere frequently childhood abuse and ran put Grande did not on the record the full away from home. told Dr. Krawczuk Sul- experts list of witnesses and she would that, tan when he was fifteen or sixteen mitigation. have called old, years abducted, briefly he was sexual- As to her abused, investigation mitigating evi- ly group and beaten dence, strangers. diagnosed explained LeGrande she had Sultan disorder, general cognitive with a obses- done little research in advance Ultimately, Krawczuk did not obtaining a because hearing. plea than Other penalty phase, to make from wish a case report psychiatric evaluation Dr.. explain to Kraw- was unable to other LeGrande Keown, try to find LeGrande did not mitigating evi- briefly czuk the details of what expert spoke LeGrande witnesses. might on his presented have been dence grandmother, mother and with Krawczuk’s Instead, -only provide of behalf. she could content but she could recall conceptual expla- general with a tried LeGrande these conversations. evidence and how about Krawczuk’s nation information gather more them,- penalty. might help him avoid death with family so that she could talk cooperative stated was not but D. Evidence State’s to leave this effort and wanted part, State introduced two For its family of it.. out exhibits; First, introduced the State explained *13 Wald, of Dr. J. psychiatric report Robert penal- present case her a the allowed to to performed psychiatric evaluation who a ‘in fur- engaged ty phase, 'she would compe- was Krawczuk determine whether evidence, investigation mitigating of ther a witness in testify to as tent codefendant looking into including experts and hiring case. Dr. Poirier’s criminal Wald examined potential tried other LeGrande witnesses. in March the state after Krawczuk in this to mitigation expert to hire assist a to court death. sentenced hearing,-Krawczuk process, plea the but at intelli- that Krawczuk’s motion for Wald expert Dr. found funds.'In her dismissed slightly gence above and not to was normal or of light Krawczuk’s stated desire hallucinations, case,- signs of exhibited no phase LeGrande that he penalty a ,.. paranoia, or thinking, suicidal good “in delusional felt- that could faith she thoughts. Dr. a homicidal Krawczuk told to the needed represent [she] Court punishment he re- felt mitigation expert,” Wald that the he con- fit which was ceived the crime acknowledged that Poirier’s LeGrande gain to nothing by he stood victed and that culpability for the and in- murder relative Dr, Poirier, con- testifying against Wald to were relevant fluence over Krawczuk compétent was to that Krawczuk cluded phase In proceedings. penalty Krawczuk’s proceedings. Poirier’s testify criminal fact, with Krawczuk the she discussed pos-' Second, State into the introduced evi- taking testify of his to sibility thе stand given of transcript deposition the a dence partici- him to Poirier influenced Among things,-Dr. by Dr. other Keown. pate But because Krawczuk the murder. that, meeting during his stated testify penalty the Keown unwilling to was him, emphasized with that Poiri- phase she not discuss this did proceedings, kill to rob Staker and effort er led the culpability relative issue Krawczuk in In merely Dr. rate, he was follower. great anyAt detail. because Poirier opinion, clinical Keown’s pled to murder after guilty the months him, “overstating” Poirier’s influence over pled guilty, LeGrande had no of way knowing of the time Krawczuk’s III. STATE POSTCONYICTION Poirier re- penalty phase whether OF COURT’S DENIAL 3.850 proportional to ceive sentence that MOTION thus had no to culpability reason January mitiga- comprehensive to order explore this as- related dated issue postconviction court de- state tion. postcon- Legitimate nied Krawczuk’s 3.850 motion for A. Krawczuk’s Waiver appeal, relief. As relevant viction Regarding decision not Krawczuk’s rejected the state 3.850 court case, a penalty phase the state claim that rendered ineffective recognized 3.850 court under Florida investigation in the presen- assistance law,1 competent may “[a] defendant waive of tation presentation of evidence.”. See outset, At the state 3.850 court Hojan State, (Fla. 3 So.3d testimony of found Krawczuk’s two 2009) (“Competent who are defendants experts—Dr. mental health Crown and Dr. represented maintain right Sultan—to be As incredible. respect their make- choices attor that, Crown’s at the time of conclusions neys’ handling of their cases. This includes murder, Krawczuk was under in- presentation right either waive of fluence mental or extreme emotional mitigation or to choоse what miti unable to disturbance and was conform his counsel.”). gation evidence is introduced law, requirements conduct to provides Florida law also where a state weight 3.850 court that the found presentation defendant seeks waive the strongly the evidence so this claim refuted against counsel, advice as to render it incredible: counsel must inform the trial'court including, particu- [T]he other evidence record the defendant’s decision indi larly, Mr. Krawczuk’s but confession cate any, what if is *14 letters, also including Mr. Krawczuk’s Dugger, v. presented. available to be Koon deposition Gary the and of statement (Fla. 1993). 246, 619 250 So.2d The trial Sigelmier, Poirier, the of Mr. statement require court must then to the defendant testimony of family the the members confirm on the record his counsel had that friends, the pro- and mental other health discussed these matters with him and that fessionals, reports depositions, and and pres intended nonetheless to waive the other in this credible evidence case so mitigation entation of Id. resoundingly opinion refute this to as explained, The state 3.850 court howev- as opinion [it] discredit well the related er, that Koon was that decided after Kraw- organic Mr. Krawczuk from suffers sentencing hearing czuk’s in damage. February brain 1992 and not thus did bind dur- The rejected state 3.850 court also Dr. ing event, representation. any her In Sultan’s conclusions that Krawczuk was state 3.850 court noted that rule an- influence of an extreme mental nounced in Koon is a creature of state law or emotional disturbance and was unable only likely that this procedure and is not to requirements conform his conduct to the Dr, required of as a matter federal law. See Although of the law. Sultan testified Sec’y, Dep’t Corr., Anderson v. of 462 F.3d extensively that she on relied Dr. Crown’s (11th 1319, 2006) (“Although Cir. 1330-31 in reaching evaluations her own conclu- requires Koon on state the rec- sions, shows Dr. record that Sultan’s mitigation ord what the evidence in meeting last with Krawczuk occurred well .,., be interpretation ‘[a] state’s its of own before Crown evaluated him. -The state provides laws or no rules for 3.850 court also found basis federal that Dr. Sultan’s relief, contrary weight were habeas corpus question of since no of conclusions ” (second which strongly that constitutional nature is indicated involved.’ McCullough statutory mitigating original) these factors not (citing did alteration Singletary, apply. (11th 967 F.2d Cir. that 1992))). The state 3.850 court stated It found that Krawczuk further recognized for competent validly “only excuse that mentally [would] was is family for investigate background of presentation mitigation failing evi- waived the dence; unequivocal instruc- stating: mitigation direct [was] not to.” It determined tions from the client particular of this no
at the time case performance was deficient LeGrande’s required for inquiry form of record family failing investigate for Krawczuk’s (waive waive defendant failing clear history' to obtain di- evidence) of as it presentation is fam- pursue from Krawczuk not rections subject dispute that Mr. serious ily history, stating: is, was, mentally com- given man ... who was Mr. petent [although probable counseled it is attorney inquired position and asked and counsel acted rea- prosecutor sonably discontinuing investigation court mul- an and the tiple regarding family history occasions ... his deci- into his the case law is mitigation[,] extremely compelling sion to waive the basics on the need for an - for requirements unequivocal a valid record expression [sic]' from defendant they as existed the time this pursue type waiver not to information. mitiga- Permitting investigation case have been met. presentation tion refusing allow B. Ineffective Counsel closely but dif- are related will not ferent. this case the record
Turning to Krawczuk’s ineffective coun- support unequivocal direction to claim, sel the state 3.850 court discussed investigate the court believes re- [was] legal principles Strickland v. Wash- quired by the law as existed at the ington, question. time in (1984). It noted L.Ed.2d Strick- requires petitioner to both land show aspects As to all other in- LeGrande’s performance deficient counsel’s vestigation—including culpability, relative *15 then-prevailing professional abuse, ethic, substance work and mental petitioner’s prej- norms and case health—the state 3.850 court found no de- that, for alleged such but udiced counsel’s representation. ficiencies LeGrande’s errors, proceedings result would prejudice, As to the state Strickland have been different. requirements 3.850 court outlined- the defendant, prejudice a performance,
As to counsel’s the state establish like where Krawczuk, analyzed represen- of miti- presentation 3.850 court LeGrande’s waived circumstances, respect investigation gating to her such tation with mitigation factors. court found that the Kraw- Regarding the state 3.850 several fami- (1) evidence, that, showings: ly background it czuk must make three and found that trial a pled guilty, before Krawczuk had counsel conducted reasonable mitigation investigation, prepared had two witnesses she would have discovered and evidence; (2) “appealed] reasonably mitigating prob- ... a reasonable that, if [they] testify ability aware of what It he had been advised more would to.” evidence, point entering fully-of mitigation also that at the the available found just passively petitioner not not would have instructed plea, Krawczuk “was any investigation cooperating with for miti- counsel the evidence (3) proba- directing penalty phase; and a reasonable gation he was active but pursue mitigation.” bility not to had the available presented, jury evidence been would czuk waived of his motions, all defensive have recommended a life sentence. including LeGrande’s motion for mitiga- specialist. tion In light of the firmness with showing,
As the first the state 3.850 court which obtaining physical determined that Krawczuk insisted that LeGrande and emotional abuse evidence from Kraw- not present a ease at the penalty phase, difficult, czuk’s have childhood would been the state 3.850 court determined that the although impossible, not for LeGrande. discovery of more evidence would not have Specifically, it that this noted would have changed Krawczuk’s decision. required “rely LeGrande to on Mr. Kraw- As to showing, the third and[,] whether Kraw- given expressed czuk desire not n family[,] involve his czuk likely that most established a probability reasonable However, would have been a dead end.” mitigating the new evidence would “on this it record” could not find that the changed have proceed- outcome family history have ings, the state 3.850 court balanced the been “discovered had counsel done a rea- aggravating mitigating evidence. It investigation.” sonable It found that all (cid:127) found that proven State had these to, other of mitigation was known aggravating beyond a reasonable factors developed by, unhelpful or for LeGrande. (1) doubt: the murder was committed dur- As to showing, the second the state ing robbery (2) pecuniary gain; 3.850 court found that Krawczuk had the, heinous, murder especially atro- shown probability “a reasonable that if he cious, cruel; (3) or the murder was fully had been more about advised cold, calculated, premeditated without potential evidence[,] he would any pretense of moral or legal justification. to present authorized trial counsel Though the 3.850 state, court found no such penalty evidence at phase either factors, statutory mitigating it did find Spencer trial or hearing.” at the It noted (1) these non-statutory mitigators: Kraw- “[pjrobably the best indication of how childhood; (2) czuk endured abusive Mr. Krawczuk would have treated other (3) sentence; Poirier a. lesser received mitigation was how treated the known history drug Krawczuk had a alco- mitigation.” Namely, Krawczuk was aware use; (4) hol hard-working Krawczuk was a of some available in- (5) employee; less-than- cluding report Dr. Keown’s and Paul disturbance; extreme mental emotional testimony, Wise’s but directed LeGrande and, develop not to initially after Krawczuk cooperated conced- with law en- *16 ing report, of admission Dr. Keown’s com- forcement. any mitigation manded her not to present factors, Weighing these state the 3.850 penalty phase. evidence at the court determined that Krawczuk failed In support of not to his desire that, probability show a reasonable had the evidence, Krawczuk “indicated mitigating additional at evidence adduced ... personal reasons [that did he] postconviction the hearing presented been ... put want to on the record.” Like- penalty phase, at proceedings the
wise, original acquiescence to introduc- would have resulted in a of sentence life ing Dr. report was “not a Keown’s desire It imprisonment. noted twice its confidence that mitigation be but considered a “beyond a reasonable that a doubt sen- death sentence be reversed for fail- of tence death would been the mitigation.” ure As have result additional conviction, of regardless.” his steadfast Kraw- 1290 ney performance requires every ef SUPREME COURT
IV. FLORIDA 3.850 distorting DENIAL OF fort to eliminate the AFFIRMS be made MOTION hindsight, reconstruct effects of challenged of circumstances counsel’s Supreme Court On Florida appeal, conduct, and to evaluate conduct court’s postconviction the state affirmed perspective from the time.” at counsel’s post- of Krawczuk’s 3.850 motion denial 689, 104 2052. The Id. at S.Ct. defendant II, 92 So.3d conviction relief.5 pre carries the burden “overcome the that Le- 209. As to Krawczuk’s claim that, circumstances, sumption under the of assistance rendered ineffective Grande challenged ‘might action be consid investigation presenta- counsel in the ” evidence, strategy,’ (quoting tion the Florida ered sound trial Id. of Louisiana, Supreme Court concluded state Michel v. 350 U.S. 76 court, this claim. Id. 158, 100 (1955)), 3.850 properly denied 83 “Judicial L.Ed. scrutiny performance must counsel’s highly “[Strategic deferential.” Id. addressing the merits of this Before decisions do not constitute ineffective-as claim, Supreme Court correct- the Florida if sistance counsel alternative courses principles governing inef- identified ly rejected The have been considered and fective claims! counsel assistance Supreme Court under decision was reasonable counsel’s Florida explained claim,' petitioner on such a professional succeed Oc norms conduct.” State, defiсiency prejudice: must both show v. So.2d chicone 2000). (Fla. First, identify partic- the claimant must lawyer acts or omissions of the ular State, (quoting at 202-03 v. Id. Johnston range are to be shown outside the broad 2011)). (Fla. So.3d reasonably competent performance Regarding obligation to counsel’s inves- prevailing professional standards. tigate prepare mitigating Second, clear, deficiency substantial Supreme Florida that as- explained Court must be demonstrated to shown further of the sessment reasonableness coun- and relia- have so the fairness affected investigation “a context- sel’s must include bility proceeding that confidence challenged dependent consideration of the in the outcome is undermined. from perspective, conduct” stat- counsel’s State, Bolin (quoting at 202 So.3d. Id. ing: (Fla. 2010)). ' 151, 155 principal deciding concern [O]ur A. Performance [counsel] whether exercised “reasonable is professional judgmen[t]” not whether
The Court also ex- Florida presented mitiga should required to show that plained is what Rather, tion deficient, case. we focus performance was stat- whether counsel’s investigation supporting counsel’s ing: decision not evi introduce that trial strong presumption There is ... was itself reasonable. as dence not deficient. counsel’s performance Strickland, sessing investigation, counsel’s must we 466 U.S. See *17 objective per of attor an review of their 2052. “A fair assessment conduct claim, with the Florida Su included ineffective counsel it relat 5. Krawczuk also filed only appellate to his counsel’s failure to preme petition for a writ of habeas ed Court a II, appeal disparate corpus, 92 raise on the issue of which it denied. Krawczuk direct Though petition habeas Id. 208. So.3d treatment. at at 209.
1291 formance, for measured “reasonableness Prejudice B. professional norms,” prevailing under Supreme The Florida Court also found context-dependent
which con includes a that Krawczuk not preju- had established challenged sideration conduct as Although dice. there was significant miti- perspective “from counsel’s see[n] at the gation available that LeGrande time.” discover, did not Supreme Florida' Court “equally that was concluded clear State, (quoting Id. at 203 Orme v. that' repeatedly insisted that (Fla. 2005)). So.2d pursue mitigation counsel not in- and not Supreme The Florida Court noted family.” volve his The Supreme Id Florida like where cases the defen- postconviction, Court stated “the court dant instructs counsel not to miti- found that the information that would have evidence, gating “trial counsel could not be presented been family was available for following deemed ineffective their through report, Dr. Keown’s which Kraw- present mitigation.” client’s wishes not to czuk also allow to pres- refused counsel State, 205; 137, ent” Id. at Brown v. “[b]ecause So.2d and that of Krawczuk’s (Fla. 2004) (“An counsel not instructions to involve attorney will not be .to his family, we find that cannot es- honoring for deemed ineffective his client’s prejudice.” tablish Id. wishes.”). decision, At the outset of its Supreme Florida Court set forth some of words, In other n findings Supreme the Florida report, Keown’s which his child- discussed Court had affirmed on direct As appeal. family history, abuse and but Kraw- hood findings, those Supreme the Florida Court czuk had refused allow LeGrande to in particular: Thus, noted “in- even this evidence. Supreme formed the court that Court [he] wished waive Florida determined that requisite not penаlty proceeding,” Krawczuk could establish the that he “forbade prejudice to on this succeed claim about presenting from [his counsel] evidence on investigation presentation LeGrande’s during his penalty behalf’ phase, and mitigating Id. The Florida Su- pres- he “refused allow preme Court not address state did family history, ent” conclusion that all 3.850 court’s alternative which was available from Dr. Keown’s re- if the additional even II, port. Krawczuk So.3d trial, not have led to a introduced Supreme The Florida also stated Court different sentence. See id. that “the record demonstrates that Kraw- permit attorney czuk would in- FEDERAL V. HABEAS family.” volve at 205. It Id. stated that PROCEEDINGS ability “counsel’s was limited the defen- July peti- On Krawczuk filed a dant’s desire not to his family.” include Id. tion in the States District United Court result, As a the Florida Court seeking District of the Middle Florida that “counsel’s concluded actions could not corpus writ habeas U.S.C. Brown, (citing deemed ineffective.” Id. claims, § petition 2254. The four asserted 146). Thus, 894 So.2d the Florida Su- including that rendered ineffec- preme agree Court with the did 3.850 investiga- assistance of counsel in the tive performance court that trial presentation counsel’s evi- tion and family deficient as to history. dence.
1292 15, 2015, OF REVIEW court STANDARD the district VI. August
On
in its
petition
habeas
denied Krawczuk’s
2254,
§
28
amended
Under U.S.C.
as
this ineffective counsel
entirety, including
Effective Death
the Anti-Terrorism and
not discuss
court did
district
claim. The
(“AEDPA”),'
re-
Penalty Act of 1996
our
performance was de-
whether LeGrande’s
may only
A
is
federal court
view limited.
only
Af-
prejudice.6
ficient and addressed
to a
grant
corpus
a
of habeas
state
writ
decisions
reviewing the state courts’
ter
adjudicated
claim
on the
prisoner on a
evidence, the district court
and all of the
in a
court
the state
merits
state
where
not
Krawczuk had
estab-
concluded that
to,
contrary
or in-
court’s decision “was
(1)
state
prejudice
“[t]he
because
lished
of,
application
volved an unreasonable
reasonably
[Kraw-
concluded
court
law, as deter-
clearly established Federal
in-
unmistakable
gave LeGrande
czuk]
of the United
mined
Coprt
evi-
structions
States,”
on an
based
unreasonable
“was
(2) “[n]othing
the record
in
dence”
light
of the facts
determination
suggests
[Krawczuk]
pro-
court
presented in the State
had he
to counsel
changed his directions
2254(d).
§
ceeding.” U.S.C.
28
more full informed about
been
out
pointed
court
The district
evidence.”
A state court’s decision rises
during
offered no evidence
that Krawczuk
application of
of an
level
unreasonable
indicating
proceedings
postconviction
“objec
only
the-ruling
where
is
federal law
miti-
of all
made aware
had
been
unreasonable,
he
merely wrong;
tively
instructed
gating
he would have
Virginia
error will not
even clear
suffice.”
differently.
counsel
LeBlanc,
U.S. -, -,
582
137 S.Ct.
v.
n
(2017)
1726, 1728,
(per
1293
AEDPA,
fessionally competent
lenses of both
our
Strickland
assistance.” Strick
Harring
land,
analysis
“doubly”
690, 104
is
deferential.
466
at
U.S.
S.Ct. at 2066. We
ton,
105,
D. Krawczuk Requirement mitigation evi- slightly First wavered about gan’s Pope, recognized As this Court dence. prejudice, Tо establish however, petitioner’s prove burden Landrigan require first satisfy the must prejudice, required as Strickland probability a reasonable ment: Landrigan, with evi- cannot be met fully advised about the avail more he been merely petitioner showing dence mitigation able he would cooperated counsel’s efforts to inves- it on his behalf. allowed background tigate personal Landrigan, at at 127 S.Ct. Strickland, open presenting point he at one 696, 104 1944; 466 U.S. Pope, 752 F.3d some pattern of obstruction 2069. Krawczuk’s every Supreme Court the Florida 1266-67. gave that Krawczuk could to determine reason Rather, must “affirma rejected prejudice. not show al tively establish” that he would have presentation evi counsel’s of the undiscovered presentation lowed the separate judicial proceed *22 at three dence To mitigation Id. at 1267. hold evidence. sought penalty, the and ings, openly death of alone is suffi cooperation that evidence strategy. LeGrande’s repeatedly undercut to “reverse[ ] [Krawczuk’s] cient would be in ignorance. were not taken His actions gave record as a whole burden.” Id. The of had advised Krawczuk the grounds Supreme ample Court the Florida evidence, mitigation and importance of no to conclude that Krawczuk had interest report. Dr. possessed Keown’s Krawczuk actually employing any mitigation evi Later, during proceedings, the 3.850 repeatedly He stated that he dence. no presented evidence indicat- sought penalty, the death wished avoid that, he made aware of the ing had been opposed pres the appeal, reversal and before the mitigation available evidence If any mitigation entаtion of evidence. phase, he would have allowed Le- penalty early cooperation in thing, Krawczuk’s Notably, it. Grande record evidence makes his producing mitigation affidavit, any deposition, of or is devoid all suppression of this information later LeGrande, Krawczuk, from statement voluntary meaningful. the more experts, or mental health Krawczuk’s Simply put, Krawczuk did not family suggesting even because friends showing have instructed Le- affirmatively Krawczuk would offer evidence differently fully had he been aware willing Grande Le- he have been allow would mitigation all available evidence Grande during pro uncovered the 3.850 was appeal, con this n Landrigan ceedings, he has satisfied that the Florida Court un tends is not requirement first entitled reasonably applied Strickland overlook Landrigan, 550 at habeas relief. See U.S. ing indicating that there was a evidence Strickland, 1944; 481, 127 466 U.S. S.Ct. at probability he would have reasonable Pope, 696, 2069; at 752 F.3d at S.Ct. presentation mitigation evi allowed at 1266-67. points evidence show dence. Keown, ing cooperated that he Satisfy E. Did Not Landri- military about his ser volunteered details gan’s Requirement Second vice, signed releases counsel obtain review, Even under de novo we his mili psychological information about service, satisfy has failed to tary general information that Krawczuk offered hold n Landrigan prejudice requirement (8) symptoms; second suffered sexual abuse petitioner that a a must establish reason- on one occasion strangers. that, probability able had the available mit- However,' review, under de novo we
igating
presented
evidence been
at
readily conclude that Krawezuk failed to
penalty phase, he would havе
received
that,
establish a
probability
reasonable
life sentence
penalty.
instead
the death
presented
the above mitigating evi-
Strickland,
See
This leaves Krawczuk’s non-statuto particularly was crime brutal. Krawezuk ry mitigating further recognize factors. We choked Staker ten for minutes before twice (1) is there evidence that Krawezuk: pouring drain cleaner throat down Staker’s (2) father; by his iso2- abandoned taping a over (3) cloth his mouth. This childhood; during lated super was not upheld childhood; (4) Court has' death sentences in other during vised sustained See, e.g., Boyd (5) gruesome neuropsychological murder cases. v. damage; had men Allen, (11th disorders; 1274, tal 592 endured emotional F.3d 1303-04 Cir. abuse; (7) Clisby State, physical 2010); experienced depressive v. 26 F.3d 1057 Thompson Wainwright, mitigating presented, been (11th 1994); v. evidence Cir. 1986). (11th Cir. have proceedings 1453-54 outcome of the F.2d of intellectu Notably, Accordingly, is no evidence there been different. because here, powerful and deficiency but rather not a reasonable al Krawczuk did establish carefully planned of a evidence substantial have allowed the probability that would of torture Staker. and brutal of mitigating presentation unlikely make cruelty premeditation act Supreme Court did unrea- Florida not have received a different that he would of sonably by failing weigh the totality sentence. mitigating aggravating mitigating it is clear that Where all the light
In
available
actually
whole,
presented
been
reasonably would
have
it is not
as a
considered
no
jury,
that alone
there is
means
presentation
Kraw-
probable that
Gilreath,
mitigating
prejudice.
evidence would
See
234 F.3d at
czuk’s entire
(“If
imposition
of a life
have precluded
n.12
Petitioner would
have resulted
penalty.
In
mitigating
rather than
death
[of
evidence]
sentence
admission
[the]
circumstances,
event,
the presentation
any
prejudiced
these
Petitioner was
barely
mitigating evidence “would
did.”).
new
anything
that trial counsel
sentencing pro-
altered
[Krawczuk’s]
sum, on
record and even
Strickland,
file.”
U.S.
See
review,
we hold
de novo
probability
has not shown a reasonable
argues
appeal,
On
mitigating evi-
presented
had he
all
Florida
failed
Court
conduct
dence,
proceedings
the outcome
any balancing
aggra
of all
have been different.
wonld
vating factors,
unreasonably ap
thus
F,
plied
making
its ultimate
Strickland
The
the Florida Su-
Decision
Porter
prejudice determination.
See
preme Court Was Not Unreasonable
McCollum,
30, 42-43,
130 S.Ct.
Investigation
Mitigating
as
(2009).
447, 454-55,
It is
The
Krawczuk is the issue
gating evidence are relevant to the defi-
investigation
of mitigating
LeGrande’s
ciency prong of the
analysis,
Strickland
not
is
essential or even material
Supreme
Florida
Court’s decision rested
Supreme
the Florida
conclusion
Court’s
deficiency
not on the
vel
non
counsel’s
that Krawczuk failed to
preju-
establish
performance, but rather
indepen-
on the
dice.
Given
record shows Krawczuk
dent
that'
conclusion
Krawczuk failed
present
told his counsel not to
II,
prejudice.
establish
92 So.3d
precludes any
need
exam-
at 205. For
purposes
preju-
establishing
scope
ine the
investigation.
counsel’s
dice under the circumstances presented
here,
depends
the inquiry
only on
petitioner
“[I]f
‘instructed his
whether the defendant
instructed
coun-
not
to offer any mitigating evi
sel not to
mitigating evidence and
dence,’
investigate
then ‘counsel’s
failure
(2) whether the defendant has satisfied the
not
prejudicial
further could
have been
”
Landrigan requirements.
two
See Landri-
Pope,
under Strickland.’
F.3d
gan,
U.S.
conduct mitigating prejudicial). tigates not To evidence and tells gating evidence extent, contrary, ac there reply Krawczuk’s brief her about it. To the some client distinction, stating investigation requirement that is in this knowledges the is no such investigation mitiga of pertaining to case instructs type sues of where the defendant of mitigation “are evi- presentation present tion and his counsel not to closely related but different.” dence.
Accordingly, whether or not the Florida CONCLUSION VIII. Supreme unreasonably Court determined not to that Krawczuk instructed LeGrande reasons, foregoing we For all is not rele- investigate mitigating evidence is not entitled to conclude prejudice analy- of vant to the outcome on his assistance habeas relief ineffective purposes in his matters for sis case. What mitigating as to of counsel claim instruct- prejudice of is whether Krawczuk penalty phase in the affirm the district present mitigating not to ed counsel evi- § peti- court’s denial Krawczuk’s dence. tion. Relatedly to issue of Le- AFFIRMED. investigation mitigating evi
Grande’s dence, reject argument we also MARTIN, Judge, concurring Circuit opportunity pres his waiver of the judgment: sufficiently evidence was ent I in the result reached concur knowing informed and because LeGrande binding precedent circuit majority because only pre-waiver a limited inves conducted precludes for Mr. Krawczuk here.1 relief tigation mitigating Landri- is that a who This Court’s rule defendant gan, Supreme Court the United States attorney instructs his not to miti- imposed ‘in that it has “never an noted two gating evidence at trial “must make knowing1 requirement upon a formed and showings” prejudice demonstrate not to defendant’s decision introduce evi support assistance ineffective S.Ct. at 1942. dence.” Head, counsel claim. 234 F.3d Gilreath no Court au Supreme Krawczuk identifies post-Landrigan (11th 2000). First, the Cir. defen- thority indicating that a probability show “a capital dant must reasonable competent defendant’s decision fully more may that—if had been any [he] advised if knowing only [mitigating] if evidence or trial counsel about coun- informed Supreme family. compelling evi- 1. I have some doubt that the Florida involve his The most testimony Court’s decision warrants deference under effect is dence trial counsel’s Penalty Effective the Antiterrorism and Death hearing post-conviction at the that Mr. Kraw- ("AEDPA”), 2254(d). § The Act U.S.C. family czuk of wanted to leave out "kind Supreme Florida Court based its decision—at My no it." doubts make difference to Mr. part—on "repeated[] least in Mr. Krawczuk’s Krawczuk, however. Even if we set aside the mitiga- pursue that counsel not instist[ence] Florida Court and conduct decision *26 family.” Krawczuk v. tion and not involve claims, our de novo review his Mr. own of State, 195, 2012). (Fla. My So.3d 205 92 not, view, my win Krawczuk still would review of the record has revealed no evidence appeal. Krawczuk instructed сounsel not to Mr.
1301 Cummings Sec’y (2007).2 requested sel L.Ed.2d 836 continuance—[he] v. Dep’t Corr., 1331, 588 per- would have authorized trial counsel to F.3d 1360 (11th 2009). Therefore, Cir. Mr. Krawczuk sentencing.” mit such evidence at Id. at can succeed on his ineffective assistance Second, “if he must show that such only claim if he demonstrates a reasonable presented evidence had been at sentenc- that, probability if he had been fully more ing, a reasonable exists that probability mitigating advised about the evidence and jury would have concluded that significance, its he would have allowed aggravating balance of mitigating cir- present to sentenc cumstances did warrant Id. at death.” ing. Mr. presented no evi such omitted). (quotation My 552 review of the means, dence. That the law this record reflects that Mr. Krawczuk to failed circuit, he cannot meet his burden to show make showings. these Washington, prejudice under v. Strickland 668, 2052, 466 U.S. 104 S.Ct. 80 L.Ed.2d This Court has said the rule established (1984). 674 in Gilreath “is consistent with” Su
preme Court’s decision in Schriro v. Lan
Because Mr.
pres-
Krawczuk’s failure to
drigan,
465,
1933,
550
ent
U.S.
127 S.Ct.
167
evidence that he
have
would
allowed
course,
ton,
668,
2052,
saying
by
2. Of
a rule established
our
U.S.
466
104 S.Ct.
Supreme
prec-
(1984),
Court is consistent with
Court
L.Ed.2d 674
unless he satisfies the
saying
edent is different from
that the rule is
two-part
required
test
under Gilreath. See
required by Supreme
precedent.
Court
I
Blystone Horn,
fear
397,
(3d
664 F.3d
424-26
majority
two-part preju-
treats Gilreath's
2011)
Landrigan
(limiting
Cir.
to cases where
being required
dice standard as
under Landri-
strong
the defendant has demonstrated a
de
gan
every
case where a defendant tells his
any
termination not to
evi
lawyer
present mitiga-
he does not
want
dence,
concluding
fact
”[t]he
[the
1294,
Maj. Op.
tion. See
1295. The Su-
forego
presentation
defendant] chose
Landrigan
preme Court’s decision in
was not
testimony
own
and that of
two fami
[ ]
so broad.
ly
simply
permit
members ...
does not
Landrigan actively
Mr.
interfered with
inference
competently
had counsel
in
counsel’s efforts to
"re-
vestigated
developed expert
mental
peatedly [interrupting] when counsel tried to
records,
health evidence and institutional
[the
anything
proffer
that could have been con-
would
defendant]
have also declined their
mitigating,” regardless
sidered
of its form.
presentation”).
majori
To the extent
Landrigan,
476,
1303
McCollum,
30,
See Porter v.
558
tion.
the
postconviction
U.S.
but—as
state
court
41-43,
447, 454-55,
130 S.Ct.
175 L.Ed.2d
found—it
did
“contain
quality
the
(2009) (considering
398
evidence of defen
the evidence
regarding
mother’s abuse
abnormality
dant’s
cognitive
“brain
brought
de
was later
out
the evidentia-
mitigation);
fects” as
ry hearing.”
relevant
Williams v.
Taylor,
362, 398,
1495,
529 U.S.
120 S.Ct.
Thus,
is
this
not a case where the new
1515,
(2000) (“[T]he
who criminal that are attribut Mr. or help put into context the disadvantaged background, able a or to crime he If horrible committed. avail may emotional and mental problems, presented, able had been culpable less than who defendants have no jury would have learned “the kind of omitted)). (quotation such excuse.” history Supreme troubled [the Court] jury
Yet the
who
assessing
recommended
Mr.
declared relevant to
a de
ha[s]
Wiggins
put
nothing
Krawczuk be
to death heard
culpability.”
fendant’s moral
v.
Smith,
mitigation—not
2527,
even a
for
plea mercy
bare
123 S.Ct.
U.S.
(2003).
lawyer
from trial
counsel. Mr.
also heard the throughout his suffered Mr. Krawczuk *29 im of his mental and learned childhood Corporation, Boston Scientific record, I Mr. believe On pairments. Defendant-Appellant. a reasonable Krawczuk has demonstrated No. 16-11818 Be a different outcome. probability of and I come to a majority differ cause the Appeals, United States Court Mr. on the issue whether conclusion ent Eleventh Circuit. having prejudiced by no join I cannot its presented, case (October 19, 2017) opinion. prevail Mr. Krawczuk can toAs whether however, I agree must appeal,
in this cannot. majority that he EGHNAYEM, Margarita M. Do
Amal Nunez,
tres, Juana Betanc Mania
ourt, Plaintiffs-Appellees, Dubois-Jean, Plaintiff,
Margarette
v.
BOSTON SCIENTIFIC -
CORPORATION, Defendant
Appellant.
Margarita Dotres, Plaintiff, M.
v. Corporation,
Boston Scientific
Defendant. Nunez, Plaintiff-Appellee,
Mania Corporation,
Boston Scientific
Defendant-Appellant.