Holly WOOD, Petitioner-Appellee, Cross-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Troy King, The Attorney General of the State of Alabama, Grantt Culliver, Warden, Respondents-Appellants, Cross-Appellees.
No. 06-16412.
United States Court of Appeals, Eleventh Circuit.
Sept. 16, 2008.
1281
IV.
Blankenship has failed to overcome the “strong presumption” that his counsel‘s performance at the 1986 resentencing was reasonable. See Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004). For the reasons stated above, a reasonable view of the record demonstrates Blankenship has not proved counsel was unaware of his life history and did not make a reasonable, strategic choice to pursue residual doubt. Therefore, the state court did not unreasonably apply Strickland in finding Blankenship‘s counsel were not ineffective at the final resentencing trial. The district court‘s denial of his habeas petition is AFFIRMED.
Henry Mitchell Johnson, Montgomery, AL, for Respondents.
Before DUBINA, BARKETT and HULL, Circuit Judges.
HULL, Circuit Judge:
The State of Alabama appeals the district court‘s grant of the habeas writ to Holly Wood, which vacated his death sentence based on counsel‘s ineffective assistance in failing to investigate and offer sufficient mitigation evidence. Wood cross-appeals the denial of his claims that: (1) he is mentally retarded and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); and (2) the prosecutor‘s peremptory strikes violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After review and oral argument, we affirm the district court‘s denial of Wood‘s Atkins and Batson claims and reverse its decision that Wood‘s counsel rendered ineffective assistance.
I. The Crime and Procedural History
A. The Crime
On the night of September 1, 1993, Wood brutally killed Ruby Lois Gosha, who was Wood‘s former girlfriend and the mother of his child. See Wood v. State, 715 So.2d 812, 813 (Ala.Crim.App.1996). About two weeks prior to murdering Ruby, Wood had assaulted Ruby, cutting her and causing her to lose the use of two fingers. Id. at 814. In addition to the testimony of
On the night of the murder, around 5:00 p.m., Ruby‘s mother told Wood to leave her home (where Ruby lived) and not come back. Id. at 813-14. Wood returned to Ruby‘s mother‘s house around 9:00 p.m., snuck into Ruby‘s bedroom with his 12-gauge shotgun, and shot Ruby in the head and face, fracturing her skull and injuring her brain. Id. at 814. There was a gunshot wound near her eye and one near her cheek. Id. Ruby was dead by the time the ambulance got her to the hospital. Id.
After shooting Ruby, Wood that night told his cousin, Calvin Salter, “I shot that bitch in the head, and [blew] her brains out and all she did was wiggle.” Id. at 815 (alteration in original). Wood also told Salter that he had attempted to stab Ruby in the heart sometime prior to the shooting, but Ruby had thrown her arm up to protect herself, and he had stabbed her in the arm instead. Id. Thus, although Ruby had tried to escape Wood‘s domestic violence and although her mother had tried to keep Wood away from her home, Wood managed to sneak into the home late at night and kill Ruby at point-blank range in her own bed.
At the time Wood killed Ruby, he was already on parole for a prior violent felony shooting of another former girlfriend. See id. at 819. In short, Ruby was not Wood‘s first domestic violence shooting victim, and the State sought the death penalty for Ruby‘s murder.
B. Procedural History
On October 20, 1994, the jury unanimously convicted Wood of capital murder during a first-degree burglary. The jury recommended a death sentence by a 10-2 vote. After a pre-sentencing report and a separate sentencing hearing, the trial judge sentenced Wood to death. On direct appeal, the Alabama Court of Criminal Appeals (“Alabama Appeals Court“) rejected Wood‘s Batson claim and affirmed his conviction and death sentence. See Wood v. State, 715 So.2d at 817, 819. The Alabama Supreme Court also affirmed Wood‘s conviction and sentence. Ex parte Wood, 715 So.2d 819 (Ala. 1998).
After the United States Supreme Court denied Wood certiorari, Wood v. Alabama, 525 U.S. 1042, 119 S.Ct. 594, 142 L.Ed.2d 536 (1998), Wood filed a petition for post-conviction relief under
After these Rule 32 orders, the United States Supreme Court decided Atkins, and the Alabama Appeals Court remanded Wood‘s Rule 32 case in light of Atkins. Wood v. State, 891 So.2d 398, 402 (Ala. Crim. App. 2003). On remand, the Rule 32 court conducted an extensive evidentiary hearing and issued a third Rule 32 order thoroughly discussing Wood‘s claims and denying them. The Rule 32 court found that Wood was not mentally retarded and
Wood then filed his
II. Standard of Review
We review the district court‘s grant or denial of habeas relief de novo. See Stewart v. Sec‘y, Dep‘t of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007); McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005); Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). However, under
With these highly deferential standards in mind, we turn to Wood‘s Atkins, Batson, and ineffective assistance claims, in that order.
III. Atkins
We agree with the district court that the Alabama courts’ rejection of Wood‘s mental retardation claim was not contrary to, or an unreasonable application of, Atkins, or based on an unreasonable determination of the facts.
The Supreme Court in Atkins held that the Eighth Amendment prohibits the execution of mentally retarded persons. Atkins, 536 U.S. at 321, 122 S.Ct. at 2252. The Supreme Court left “to the States the task of developing appropriate ways to enforce the [Atkins] constitutional restriction.” Id. at 317, 122 S.Ct. at 2250
After three evidentiary hearings, the Rule 32 court applied this standard and found Wood is not mentally retarded because he does not have significant or substantial deficits in his adaptive functioning but instead has a high level of adaptive functioning.3 The Rule 32 court found Wood: (1) was able to obtain and maintain employment and had worked at several jobs for a lengthy amount of time, such as driving a forklift, driving motor vehicles, working in a factory, and operating heavy machinery and equipment in a dangerous work environment; (2) was able to function well independently and did not need the assistance of others to complete daily tasks; (3) managed his own money and always had money; (4) did not have problems communicating or getting his needs met verbally or through written language;
(5) was able to plan and cook meals for himself and others; (6) could identify and resolve typical problems that might arise in everyday life (such as checking the fuse box if the lights went out in his house); (7) was always neat and clean in his appearance; (8) often drove himself out-of-state to visit relatives and for other reasons, and in fact was an automobile enthusiast who subscribed to Hot Rod magazine; (9) could form and maintain interpersonal relationships with others and had a girlfriend, Barbara Siler, for three years; and (10) devised and implemented a scheme to lure Siler out of her house to shoot her after she ended their relationship.
In finding that Wood has a high level of adaptive functioning, the Rule 32 court credited testimony from psychologists Dr. Harry McClaren and Dr. Gregory Prichard; Siler; Wood‘s former teachers; and Wood‘s former boss, Melvin Wright. Drs. McClaren and Prichard evaluated Wood together and concluded Wood was not mentally retarded because, while his full-scale IQ was 64 and his true IQ was between 61 and 69, Wood did not have significant or substantial deficits in his adaptive functioning. They administered the “Vineland” test for adaptive functioning and the Scales of Independent Behavior Revised Edition (“SIBR“). They interviewed Wood‘s “[t]eachers, boss, correctional officers, a man that had known his family, [and] sisters.”4
Dr. McClaren testified that: (1) Wood “has been able to obtain and maintain a
Four teachers testified about Wood‘s IQ and special education classes, and their testimony was consistent with that of the Rule 32 psychologists. Janet Penn—Wood‘s special education teacher—taught Wood for two or three years during junior high. Penn could have no more than fifteen students at a time, and usually she had twelve. Penn‘s special education students had an IQ range of 60-80, and Wood was a “pretty average” student who never failed. Penn did not recall Wood getting into trouble frequently, but as neat, clean, and on-time, albeit lazy, sleepy, and a little moody. Penn thought Wood was probably classified as educable mentally retarded, which meant he was more productive than the students classified as trainable mentally retarded.5
Hilda Maddox—another special education teacher—testified the range of IQs for special education students was “low 50s to . . . [maybe] 80.” According to Maddox, Wood was in the middle range of the educable mentally retarded group of students, had an IQ in the low to mid 60s, and got C-range grades. Wood never failed and attended class on a regular basis, although he was quiet and did not always put forth maximum effort. Maddox confirmed Wood was very clean and had a very neat appearance.
Alfreida Griffen attended Luverne High School with Wood and is now its principal. The special education students were called “moles.” The special education classroom was in the basement and called the “mole hole.” Douglas Brown taught Wood in junior high physical education and found him to be a typical junior high school kid. Brown testified that “Holly B,” Wood‘s nickname, was used as an insult.6
Siler—Wood‘s former girlfriend—testified about their relationship. Siler dated Wood from 1981 to 1984. When they dated long distance for some of that time, Wood drove to see Siler over “most weekends” and “sometimes through the week.” Wood was nice to Siler at the beginning; had a nice appearance; cared a lot about how he dressed, his hair, and his clothes; and did laundry frequently. When Siler met Wood, he drove a delivery truck and had worked for a funeral home and Sanders Lead Company. Wood always seemed to have money. He had three different cars during their relationship, liked his cars, and kept them well-detailed. When Wood visited Siler, they stayed at a motel and he would go inside and get the room. Nothing ever struck Siler as “slow or off” about Wood. Wood seemed like an average man, and, in fact, was “pretty capable.”
Siler and Wood talked about the possibility of getting married, but Wood became abusive, and their relationship deteriorated. The sheriff came to Siler‘s mother‘s house because Siler and Wood were having an argument. The argument and the sheriff‘s visit upset Siler‘s mother, and Siler ended the relationship. This upset Wood, and he wanted to talk to Siler, but she did not want to talk to him. Wood then sent his friend to the door of her mother‘s house “to tell [her] to come outside” because Siler‘s mother would not have let Wood in. When Wood‘s friend told Siler to come outside to talk to Wood, Siler told him no, and she stayed inside and sat down on the couch. A few minutes later, Wood shot Siler through the window and fled. The Rule 32 court found Wood‘s ruse to shoot Siler “exhibited regrettable adaptability” on Wood‘s part.
Based on this wealth of evidence, the Alabama courts found Wood was not mentally retarded. Wood has not shown the Alabama courts’ rejection of his mental retardation claim was contrary to, or an unreasonable application of, Atkins, or based on an unreasonable determination of the facts.7
IV. Batson
The district court also properly determined the Alabama courts’ denial of Wood‘s Batson claim was not an unreasonable application of clearly established federal law or predicated upon unreasonable findings of fact. The district court determined that although Wood raised a Batson claim in the state courts, he did not make any sub-argument comparing black venire
V. Ineffective Assistance Claims
The trial court appointed three attorneys for Wood: Cary Dozier and Frank Ralph, experienced trial attorneys, and Kenneth Trotter, a new attorney who shared office space with Dozier. Wood claims his counsel were ineffective in the penalty phase because they: (1) did not present to the jury evidence of Wood‘s borderline intellectual functioning and special education classes; and (2) failed to adequately investigate those issues before deciding against presenting mental health evidence.
To evaluate Wood‘s ineffective assistance claims, we review: (1) what each counsel said about their investigation, preparation, and trial decisions; (2) what mitigation evidence counsel discovered and presented to the jury and later to the sentencing judge; (3) the Rule 32 mitigation evidence that Wood argues his counsel should have investigated and presented; and (4) the fact findings and legal conclusions in the Rule 32 orders.
A. Dozier‘s testimony and Dr. Kirkland‘s report
Dozier had practiced for more than twenty years, represented capital defendants before, tried over a thousand felony8 cases, and had extensive criminal experience. Dozier had worked in the Alabama Attorney General‘s Office, for a judge on the Alabama Court of Criminal Appeals, for a private law firm, and as the Chief Deputy District Attorney in Montgomery County. Dozier was Wood‘s lead counsel, and, as detailed below, Dozier and Ralph were responsible for and involved in investigating all phases of the trial, including the sentencing and guilt phases.
Dozier testified Wood was always nice and cooperative and gave the trial team information about the case that it followed up on. Dozier used an experienced investigator, Pete Taylor, and was “sure” that Taylor met with Wood and “members of [Wood‘s] family and other people.” Dozier used Taylor to “look into discovering mitigating evidence,” and was “sure” the trial team interviewed “potential witnesses about childhood problems that Mr. Wood may have had.” Although Dozier did not recall to which of Wood‘s family members he personally spoke, Dozier was “sure” he spoke to Wood‘s father and that the trial team “talked to several witnesses.”
Investigator Taylor confirmed that all of his instructions on the Wood case came from Dozier and all of his meetings were with Dozier. Taylor had thirty years of police experience. He met with Wood for three hours and interviewed, inter alios, Wood‘s sisters Johnnie Wood and Susan Wood Caldwell, and his father, J.P. Wood.8
Dozier obtained and reviewed a psychological evaluation of Wood as possible mitigation evidence. Dozier moved the state trial court to have Wood examined by a psychologist. Dozier explained that when they sought to have Wood evaluated by a
Dr. Kirkland administered the Wide Range Achievement Test-Revised and Minnesota Multiphasic Personality Inventory tests, and reported that Wood: (1) was “reading on less than a 3rd grade level“; (2) “could not use abstraction skills much beyond the low average range of intellect“; and (3) had “an IQ in the borderline range of intellectual functioning.” Based on the tests and his clinical interview, Dr. Kirkland reported that Wood was “functioning, at most, in the borderline range of intellectual functioning.”9
Wood told Dr. Kirkland he had no history of hospitalization, had never taken any psychoactive medication, and was not taking any medication at the time of the evaluation. Dr. Kirkland determined Wood had “problems with impulse control,” “poor anger control,” and “acting out behavior.” Part of Dr. Kirkland‘s diagnosis was Axis II, Antisocial Acts. Wood reported to Dr. Kirkland that he had “felt injurious toward others in the past,” and referenced having assaulted a different girlfriend (Siler) by shooting her “through the window of her apartment after seeing her with another man.” Indeed, Wood was on parole for his felony assault of Siler when he killed Ruby.
Dr. Kirkland reported that Wood “did not evidence any memory deficits“; had “a complete memory of his behavior at the time of the alleged offense“; had a “normal thought process“; and his “thinking was goal directed and logical.” Dr. Kirkland concluded there was no mental disorder present that would detract from Wood‘s ability to appreciate the criminality of his murder of Ruby. Dr. Kirkland reported Wood felt he had a good relationship with his attorneys and had been able to discuss his case in detail with them.
As discussed later, Wood‘s counsel did not show Dr. Kirkland‘s report to the jury. The Rule 32 court found: (1) Wood‘s counsel decided that calling Dr. Kirkland was not in Wood‘s best interest; and (2) “counsel investigated a potential mental health defense, but decided against presenting it.” Dozier was responsible for the decision whether to use Dr. Kirkland‘s report. Although Trotter handled the bulk of the courtroom portion of the penalty phase, Dozier was lead counsel at all times, and Trotter testified he “relied upon Mr. Dozier‘s opinion of [Dr. Kirkland‘s] psychiatry evaluation” and Dozier was the primary contact with Dr. Kirkland. Trotter testified Dozier and Ralph essentially “made the decisions and told [him] what [he] was going to do.” Dozier testified that had there been any useful information in Dr. Kirkland‘s report, he would have presented it, as follows:
[Q.] Had there been information in [Dr. Kirkland‘s] report that you found useful for Mr. Wood to present, would you have presented it?
A. We would have.
Q. Including what was in the report, if you found it useful?
A. If it was useful, we‘d have used it.
At the time of Dozier‘s Rule 32 testimony in 2000, six years had passed since the 1994 trial, and Dozier had no files from Wood‘s case because they were destroyed in a fire. Given the passage of time and lack of files, Dozier could not specifically recall reading Dr. Kirkland‘s report, but did testify, “I‘m sure we did,” as follows:
Q. Did [Dr. Kirkland‘s] report provide anything for you all?
A. I think it indicated that Holly Wood had some problems at a younger age or something like that. I just don‘t recall all this. But I think there was some childhood problems, something in the report.
....
Q. Do you recall reading the Kirkland report before the trial?
A. I don‘t recall. I‘m sure we did, but I don‘t recall.
Trotter testified that “Dozier had indicated that he had looked at the report and that he didn‘t think anything in the report really merited . . . going further.” Trotter emphasized: “And, again, he [Dozier] looked at the report and thought that wouldn‘t be needed.” Dozier testified that he, Ralph, and Trotter had “a lot of correspondence” with Dr. Kirkland.
As to Wood‘s alcohol consumption on the day of the murder, Dozier recalled the trial team “considered presenting evidence that [Wood] was intoxicated at the time” and in fact “did bring out some testimony at the sentencing phase that [Wood] was intoxicated.” The defense in the penalty phase introduced the arrest report for Ruby‘s murder, which indicated Wood had been drinking, and Trotter argued Wood‘s drinking and emotions about Ruby rejecting him were mitigating factors.
B. Ralph‘s testimony
Defense counsel Ralph had practiced law in Alabama for thirty years: twenty-five in private practice and the other five as an assistant attorney general. Ralph had handled fifty felony jury cases, and 25% of his practice was criminal cases. Ralph considered Dozier to be Wood‘s lead counsel. The case began before Ralph became involved, and Dozier had already met with Wood and “made perhaps some other interviews.”10
While Ralph “didn‘t prepare the penalty phase,” he “was in the penalty phase,” and Ralph clarified that it was not “entirely correct” to say that he had “no involvement in the preparation for or investigation of the penalty phase.” Ralph may have talked to Ruby‘s mother and Ruby‘s mother‘s boyfriend and believed he “talked to a sister or two” of Wood‘s “or maybe . . . a sister and [Wood‘s] father” prior to the penalty phase, in an effort to gain information for the penalty phase. Although Ralph never met with Dr. Kirkland, he was “sure” he reviewed Dr. Kirkland‘s report and “remember[ed] seeing it.” Ralph recalled he and counsel “sat
Ralph explained counsel purchased, from an organization called “Capital Resources,” a large book entitled “Handling Capital Cases in Alabama,” which contained a great deal of information about “motion practice” and “techniques for handling various aspects of capital trials.” Ralph testified that while he could not “say that [he] relied on it entirely . . . it was helpful.”
C. Trotter‘s testimony
Trotter was appointed as Wood‘s third attorney, to assist Dozier. Admitted to the Alabama Bar in 1993, Trotter had done “juvenile court work, some criminal defense, small claims, commercial litigation involving breach of contract issues, [and] some family law.” Trotter‘s “understanding” was that he was appointed to assist the two senior attorneys who were considerably senior to him in experience. According to Trotter, Dozier was the principal attorney, and Dozier oversaw “all phases of the trial, including both . . . the sentencing and the guilt or innocence adjudication.” Trotter testified that “Dozier made the determination that [Trotter] would assist primarily with the penalty phase—preparation of the penalty phase.” Although initially Dozier decided “Ralph . . . was to be more primarily responsible for the penalty phase,” it was decided by either Dozier or Ralph “shortly before the trial . . . that [Trotter] would represent Mr. Wood during the penalty phase in the courtroom.” Although Trotter testified he initially “didn‘t think that [they] were actually prepared to move forward with the penalty phase,” Trotter explained that “after consultation with Mr. Dozier and Mr. Ralph . . . their concerns about that were alleviated. And at their direction, I went ahead and proceeded.” Ralph testified that even though Trotter was relatively inexperienced and nervous about the case, Trotter‘s “apprehension was about being in front of a jury. It was not about his being prepared. I thought that he had done his work.”
Trotter had “two levels of preparation” in representing Wood. First, he was assisting Dozier and Ralph, and was thereby able to “rely[] on their criminal law expertise and experience to help . . . them.” Trotter explained that if he had issues or concerns, he would try to raise those issues or concerns with Dozier and Ralph “as to why I thought we were or were not prepared for something so they could give me feedback and guidance on how to proceed from that point.” Trotter “was able to see issues but relied a lot on [Dozier and Ralph] for guidance as to how to resolve the issues.” Trotter testified Dozier and Ralph essentially “made the decisions and told [him] what [he] was going to do.”11
Second, Trotter obtained a capital defense book published by either the Capital Resource Center or the Equal Justice Initiative, as well as various other resources, to “gain a greater understanding of capital punishment, a greater understanding of the procedures that lead up to the trial or the hearing, motions that might be necessary to preserve any appellate rights, things that we might . . . want to bring out
Trotter met with the investigator, Taylor, and reviewed Taylor‘s written reports to Dozier. However, Dozier was the “primary point of contact for Mr. Taylor, and he was the one that determined what would be investigated.” Likewise, for motions, Trotter made a contribution, but Dozier was the ultimate decision maker.12
Trotter spoke to “a lot of [Wood‘s] family” in preparing for the penalty phase. These family meetings were at the courthouse; “there were a number of occasions” on which Wood was brought to the courthouse and his family was present also; and “on some of those occasions at some point in time,” Trotter interviewed the family. Trotter explained that through his interviews—in which Trotter tried to obtain information about Wood‘s “upbringing, his background, his childhood, what it had been like growing up in [Wood‘s] home, characteristics about [Wood], anything
that [might] humanize [Wood] to make him seem more real to the jury; something that would make him seem more like a human being, somebody that would be worth saving even if that would mean he would spend his life in prison“—he identified the witnesses who were used at the penalty phase. Trotter “tried to get as much information as possible about [Wood‘s] background from the family.”13
In preparing for the penalty phase, Trotter tried to contact people at the schools Wood attended, including Luverne High School, to obtain “[b]ackground information about what kind of student he was, what kind of person he‘d been at the school . . . anything that would be able to be used as a mitigating factor.” Trotter spoke to people at Luverne High, but was unable to obtain Wood‘s academic records because Luverne High did not respond to his subpoena and its staff was generally unhelpful.14
As to Dr. Kirkland, Trotter testified Dozier was the primary contact. Trotter recalled Wood was evaluated by a psycholo-
That Dozier made the penalty phase decisions is particularly shown by what happened in deciding whether to obtain another psychological evaluation of Wood beyond Dr. Kirkland‘s. After the jury trial, Trotter sent Dozier and Ralph a letter suggesting the possibility of moving for a continuance of the sentencing hearing before the trial judge in order to request another psychological evaluation. Trotter‘s letter noted to Dozier: “We have not had any independent psychological evaluations done since you said it would not be needed.” Trotter explained that prior to the penalty phase, Dozier had determined that they did not need any further evaluations, and Dozier had determined that nothing in Dr. Kirkland‘s report merited going further, as follows:
[O]n or about the time that we would have been having discussions with [Dr.] Kirkland . . . there may have been a discussion about whether we should do anything further and . . . Mr. Dozier had indicated that he had looked at the report and that . . . there was nothing in the report that merited going further. And so at that point, he determined that we didn‘t need any further evaluators and no further were called because in the course of my preparation for the penalty phase, I would read things about
different psychological evaluations and had raised that to him. And, again, he [Dozier] looked at the report and thought that wouldn‘t be needed.
(Emphasis added.) While Trotter suggested an additional psychological evaluation, Dozier, as lead counsel, reviewed Dr. Kirkland‘s report and decided not to seek another evaluation. Trotter “relied upon Mr. Dozier‘s opinion of the psychiatry evaluation” by Dr. Kirkland.15
D. Penalty phase before the jury
Although Dozier was lead counsel and made the trial strategy decisions, Wood bases his ineffective assistance claims mainly on Trotter‘s role in the penalty phase. Thus, we detail what happened in the penalty phase.
First, all three attorneys were present and participated in the penalty phase before the jury. Dozier handled various arguments, objections, and oral motions to the court on Wood‘s behalf, as well as the jury charges. Ralph also argued on Wood‘s behalf. Although Dozier and Ralph participated in the courtroom work, Dozier and Ralph had earlier decided Trotter would present the mitigation witnesses and argue to the jury. Dozier went over the penalty phase motions with Trotter.
On the morning the penalty phase began, the trial court handled three matters before the jury was brought in. The first matter was the State‘s notice of aggravating circumstances. Dozier and Ralph argued the State failed to give proper notice of one of the aggravating circumstances—that Wood committed the murder after being convicted of a crime of violence.
The second matter was the pre-sentencing report to be prepared for the trial judge after the jury made its sentencing recommendation. Trotter reminded the trial judge that in May 1994, Dr. Kirkland produced his evaluation of Wood and Dr. Kirkland‘s report indicated Wood had “a history of antisocial behavior and problems with anger control.” Trotter told the trial judge: “[W]e don‘t intend to introduce [the Kirkland] report today to the jury.” (Emphasis added.) While all counsel had Dr. Kirkland‘s report, Dozier had made the decision not to use the report with the jury and not to seek another psychological evaluation.
However, Trotter also told the trial judge that “[n]o further investigation ha[d] been done, psychologically, of those points” and Trotter asked the judge that, prior to the court‘s final sentencing verdict, there be further psychological evaluation done of Wood. The trial judge stated he would consider Trotter‘s request after the jury was released, and pointed out that under the governing statute, the trial judge sets a date for sentencing after the jury‘s recommendation and only then orders the filing of the pre-sentencing report.
The third matter involved Trotter advising that Wood‘s counsel had not received records from the Board of Pardons and Paroles, the state prisons, and the Department of Human Resources. The State responded that a Pardons and Paroles clerk was under subpoena to testify, and the State had no objection to letting Wood‘s counsel look through Wood‘s parole file, which the clerk was bringing to the hearing. The court ruled Wood‘s counsel would have access to the clerk‘s file during a break in the penalty phase and further ruled that, if necessary and upon request, Wood‘s counsel could also have access to Wood‘s parole officer‘s file.
The trial court asked the defense if it was ready to proceed, and Dozier responded the defense was ready. The jury was brought in, and each side gave opening statements. Trotter gave the opening statement for Wood, stressing the option of life without parole. Trotter advised the jury, inter alia, that the defense would present evidence to show there were ample reasons to return an advisory verdict of life imprisonment without parole.
The State put on its case for aggravating factors, introducing a certified copy of Wood‘s prior conviction for first-degree assault. The Pardons and Paroles clerk testified Wood was on parole when he murdered Ruby. Another witness testified the District Attorney had recommended against Wood‘s parole.
The State attempted to call Siler, the victim in Wood‘s prior assault conviction, and Trotter objected. Trotter argued that the details of Wood‘s crime against Siler were unduly prejudicial. The court sustained Trotter‘s objection and refused to allow the State to present Siler‘s testimony regarding the specific details of Wood‘s assault against her. The State rested.
Trotter‘s success in keeping out Siler‘s testimony was significant. While the jury knew Wood had a prior assault conviction for shooting his girlfriend, the jury did not know the circumstances of that shooting and Ruby‘s murder were the same, which would have established Wood‘s killing of Ruby was highly premeditated and aggravated. The State wanted to show Wood suspected Siler was seeing another man, snuck around Siler‘s house, and attempted to kill her at her own home by shooting
After keeping Siler‘s testimony out, Trotter called three mitigation witnesses to show the very difficult childhood and many hardships Wood had suffered, and to illustrate how Wood, despite these extreme hardships, was a good, responsible brother and son who worked tirelessly to help support his five sisters and was a leader in their family life. The defense team portrayed Wood as a responsible person whose life was worth saving and showed Wood was despondent and drinking because Ruby rejected him, as opposed to a heartless, cold-blooded murderer.
The primary mitigation witness was Wood‘s oldest sister Johnnie, who portrayed their difficult childhood and how Wood was, nevertheless, extremely responsible and hardworking. According to Johnnie, their mother died when Wood was ten years old. Johnnie explained that after their mother died, they stayed with a cousin for approximately four years, and after that, she (Johnnie) raised Wood and their four sisters. Johnnie testified that after their mother died, but before they moved out of their cousin‘s house, their brother Samuel was killed in a car accident.
Johnnie testified that when Wood turned fifteen, he quit school and got a job at the Pepsi-Cola plant “in order to . . . help provide for the household, because we didn‘t have any help or nothing like that.” According to Johnnie, Wood quit school to provide for the household “because he was the only son that was there and we needed a lot of things by the other kids growing up.” Wood gave Johnnie money from his job to buy groceries and cleaning supplies. Johnnie explained Wood bought a car for the family “in order to provide for us to have a way to go back and forward to the store in order to get groceries.” The car cost about $200, and after making a down payment of approximately $100, Wood paid money on the car every two weeks.
Johnnie stressed Wood was “a leader” in the family even though he was younger than Johnnie and other siblings. Johnnie emphatically told the jury: “if it hadn‘t been for [Wood] . . . providing for [the family,] I don‘t know where we would have been at.”
Wood‘s father, J.P. Wood, and Wood‘s other older sister, Lillie Jean Wood, also testified. Lillie Jean explained she was close with her brother and was scared that he might receive the death penalty. Lillie Jean stated she “always had [Wood] to look up to” and could “ask him for something and he wouldn‘t ever say no.” J.P. Wood testified Wood was a “good boy” and a “good son.” He also testified that when Wood was a child, he helped with chores around their farm.
Wood‘s counsel recalled the Pardons and Paroles clerk to establish Wood‘s parole file contained the arrest report and the report stated Wood was drinking at the time of the arrest. During the guilt phase, there was also testimony that Wood was drinking during the day and night of Ruby‘s murder.
Before closing arguments, the trial court held a hearing in chambers, in which Dozier argued the State had failed to prove the alleged aggravating circumstances. Dozier moved to strike the aggravating circum-
In its closing statement, the State argued it had established three aggravating factors: (1) Wood murdered Ruby during a burglary; (2) Wood had a prior conviction for a violent felony; and (3) Wood murdered Ruby while on parole.
In reply, Trotter‘s closing argument emphasized the jury could consider not only the mitigation evidence from the penalty phase, but also all the trial evidence about the circumstances of the crime, including Wood‘s alcohol consumption on the night of the murder and that Wood was a good son and brother who dropped out of school to work and to help support his family. Trotter reviewed Wood‘s very difficult childhood, emphasizing Wood was ten when his mother died and had to move in with his cousin and live in a sixteen-person house for four years. Trotter stressed how Wood left school to make money to support his five sisters.
In addition to the hardships in Wood‘s life, Trotter argued there were mitigating circumstances surrounding the crime, and this was not a case of cold-blooded murder. Trotter argued that Ruby was the mother of Wood‘s child, and that Wood loved Ruby but she rejected him. Trotter emphasized that the more Wood drank on the day of the murder, the more he thought about Ruby and not seeing his child, and his reasoning was clouded by those emotions and his alcohol consumption. As Trotter summarized, Wood lost his mother at age ten, and now his girlfriend and the mother of his child were rejecting him too. Trotter asked the jury to consider all the childhood difficulties and the emotional factors that brought Wood to the point where he was on the night of the murder. Although alcohol was not a defense to Wood‘s crime, Trotter argued it was a strong mitigating factor, especially since Wood had been drinking all day up until the crime.
The State made a rebuttal closing argument to the jury. Dozier objected to part of the State‘s rebuttal, but the trial court overruled Dozier‘s objection.
The trial court, inter alia, instructed the jury about mitigating factors and read a list of statutory mitigating factors that the jury could consider, including: (1) whether the capital felony was committed while Wood was under extreme emotional disturbance; and (2) whether Wood‘s capacity to conform his conduct to the requirements of law was substantially impaired. The trial court told the jury the latter mitigating circumstance would exist even if the defendant appreciated the criminality of his conduct, as long as his capacity to conform to the law was substantially impaired. The trial court explained that this was so because “a person may appreciate his actions [are] wrong and still lack the capacity to refrain from doing them.”
The trial court‘s instructions made it clear that “[e]vidence of a difficult family history and of emotional disturbance constitutes relevant mitigating evidence.” The trial court instructed the jury that the list of statutory mitigating factors was non-exhaustive and that “mitigating circumstances shall include any aspect of [the] defendant‘s character, or record or any of the circumstances of the offense that defendant offers.” The jury recommended a death sentence by a vote of 10-2.
E. Penalty phase before the state trial judge
Approximately one month later, the trial court held a sentencing hearing. The
After the State argued, Dozier presented the initial argument for Wood and contended the facts were not sufficient to support a death sentence. Dozier stressed that Wood and Salter had been drinking all day on the day of the murder, and that Wood came to Troy, Alabama to find his girlfriend and shot her only in the heat of passion. Trotter then emphasized Wood‘s difficult family history: he lost his mother when he was ten; he had no father figure in his home; and he was raised by various members of the family, including his older sister. Trotter stressed Dr. Kirkland‘s conclusion that Wood could not “use abstraction skills much beyond the low average range of intellect, and that he [was] at most functioning in the borderline range of intellectual functioning,” and Trotter emphasized Wood‘s anger control and antisocial behavior problems.
A week later, the trial judge sentenced Wood to death. The judge found Wood was not “under the influence of extreme
mental or emotional disturbances” at the time of the murder and had “the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law.” The trial court noted defense counsel had asked the court to consider Dr. Kirkland‘s report, and observed that the report showed Wood was functioning in the borderline range of intellect but did “not have a mental disorder present that would detract from his ability to appreciate the criminality of his behavior.”
The trial court observed that the jury was charged as to the relevant aggravating and mitigating circumstances. The trial court further noted that both defense counsel and the State were satisfied with the jury charge as given. As to aggravating circumstances, the trial court found, inter alia, that: (1) the capital offense was committed while Wood was under a sentence of imprisonment; (2) Wood was previously convicted of a violent felony; and (3) the capital offense was committed while Wood “was engaged in the commission of or an attempt to commit or flight after committing . . . burglary in the first degree.” As to mitigating circumstances, the trial court found none, and noted Wood was not under the influence of extreme mental or emotional disturbance during the commission of the capital offense and Wood had the capacity to appreciate the criminality of his conduct and to conform his conduct to the law. The trial court concluded, “beyond a reasonable doubt,” that the aggravating circumstances “far
F. Rule 32 proceedings between 2000 and 2003
After Wood‘s death sentence was affirmed on direct appeal, Wood filed his Rule 32 petition for post-conviction review. Between 2000 and 2003, there were three evidentiary hearings, and the Rule 32 court entered three orders denying Wood‘s claims. The second order repeated some of the first order‘s findings and conclusions and added to them, and the third order did the same. We already recounted the Rule 32 testimony from Wood‘s counsel, school teachers, Siler, Wright, and psychologists McClaren and Prichard. The Rule 32 court also considered testimony from Wood‘s sisters, which we now review. We then summarize the three Rule 32 orders.
In her testimony, Wood‘s sister Maeola detailed their strict upbringing and how after their mother died, they lived with a half-sister, Nellzena, and a cousin. According to Maeola, Nellzena was very strict and would whip the children with an extension cord for hours whenever they did something wrong. Maeola testified that after Nellzena left, Wood and Johnnie fought with some frequency; Wood did not listen to Johnnie; and Wood was kicked out of school and did not leave school to support the family.18 The Rule 32 court
found Maeola‘s testimony “less than credible.”
Johnnie corroborated Maeola‘s testimony about their strict upbringing and agreed Nellzena was strict. However, Johnnie testified Nellzena did not hit them regularly and would instead “mostly punish.” Nellzena would punish Wood by making him clean up the backyard, not allowing him to play after school, grounding him, or forbidding him to have company. Their mother whipped Wood for wetting the bed, a problem that he had until he was fourteen or fifteen, but she “never hurt” them and did not physically abuse them. Johnnie‘s testimony at the Rule 32 hearing is consistent with Dr. Kirkland‘s statement that Wood “denies any sexual or physical abuse . . . [or] history of criminal victimization.”19
We now turn to the three Rule 32 orders, which addressed Wood‘s ineffective assistance claims at length. As to pre-trial investigation, the Rule 32 court found Dozier and Ralph were “very experienced attorneys,” and Trotter, although “very inexperienced,” was to assist Dozier and Ralph and benefitted from their experience. Trotter “was assistant to Mr. Dozier and Mr. Ralph“; relied on their criminal law experience to help him assist them; and obtained books and had discussions to gain a greater understanding of what they might want to bring out at the trial in either phase.
The Rule 32 court found Wood‘s trial counsel requested the psychological evalu-
As to Dr. Kirkland‘s pre-trial report, the Rule 32 court observed that it stated Wood: (1) was “cooperative, attentive, and interested in the evaluation process“; (2) was “neatly dressed” and had good hygiene; (3) had a “normal thought process“; (4) exhibited “goal-directed and logical” thinking; (5) “evidenced a normal affect“; (6) “did not evidence any memory deficits“; (7) “evidenced concrete reasoning ability”
and could use “abstraction skills” at the “low average range of intellect,” despite “functioning, at most, in the borderline range of intellectual functioning“; (8) had “a good relationship with his attorneys” and was “able to discuss his case in detail with [them]“; and (9) “had a complete memory of his behavior” at the time of the murder.20 Dr. Kirkland‘s report concluded: (1) Wood had no “mental disorder present that would detract from his ability to appreciate the criminality of his behavior with regard to this specific alleged instant offense” of murder; (2) “[t]here is no allegation of any mental disorder factors in the explanation of thought or behavior process variables at all on the day of the alleged offense“; and (3) “[r]eview of collateral data and interview data . . . do[es] not reveal the presence of a mental disorder that would bear any causal relationship to [Wood‘s] alleged behavior on the day of the offense.”
The Rule 32 court specifically found that counsel decided calling Dr. Kirkland was not in Wood‘s best interest, and “counsel investigated a potential mental health defense, but decided against presenting it.” The Rule 32 court observed that counsel‘s decision “was based on at least one mental health evaluation, and most probably two,”21 and found that as very experienced attorneys, Dozier‘s and Ralph‘s decision not to raise a mental deficiency issue at Wood‘s trial was due great deference. Dozier testified he was “positive that he reviewed Dr. Kirkland‘s report,” and counsel “would have used anything in Dr. Kirkland‘s report that was helpful to them.”
The
Alternatively, the
G. 2004 Rule 32 appeal
In 2004, the Alabama Appeals Court affirmed the
H. District court‘s § 2254 order
Wood then filed a
However, the district court granted Wood‘s
I. Performance prong: presentation of mental health evidence
On appeal, the State contends the district court erred in concluding that the Alabama courts’ rejection of Wood‘s ineffective assistance claims was an unreasonable application of clearly established federal law. We review the established federal law and then explain how the Alabama courts’ decision was fully consistent with that law.
To establish ineffective assistance, Wood must show: (1) counsel‘s performance was deficient; and (2) that deficiency prejudiced him. Strickland, 466 U.S. at 687-92, 104 S.Ct. at 2064-67. Counsel‘s performance is deficient when it falls “below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. The test for reasonableness is not whether counsel could have done something more or different. Instead, Wood must show counsel‘s performance fell “outside the wide range of professionally com
Courts conduct a highly deferential review of counsel‘s performance and “indulge [the] strong presumption’ that counsel‘s performance was reasonable and that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.‘” Id. at 1314 (alteration in original) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66); see also Williams v. Head, 185 F.3d 1223, 1227 (11th Cir. 1999) (same). “When courts are examining the performance of an experienced trial counsel, the presumption that his conduct was reasonable is even stronger.” Chandler, 218 F.3d at 1316. Because of this strong presumption of competent assistance, the petitioner‘s burden of persuasion is a heavy one: “[P]etitioner must establish that no competent counsel would have taken the action that his counsel did take.” Id. at 1315.
This is not a case where counsel failed to present any mitigation evidence. Counsel hired an experienced investigator (Taylor) to help gather mitigation evidence and presented mitigation evidence from three family members about Wood‘s difficult childhood and poverty. For example, the jury was aware that Wood lost his mother at age ten, had no father figure in his home, and had to live in a house of sixteen people. The jury knew Wood quit school at age fifteen to take a job to provide groceries and essentials for his five sisters. Despite these hardships, Wood was a good, responsible brother and son; was the leader of the family; and worked tirelessly to support his five sisters. Counsel also presented the arrest report showing Wood was drinking on the day of the murder and argued Wood was distraught over Ruby leaving him.
This is also not a case where counsel failed to discover prior physical or sexual abuse or prior mental hospitalizations, treatment, or medication. In fact, Wood had none of these things.
Nor is this a case where counsel failed to obtain any mental evaluation or did not know about the mental condition in issue. Wood‘s counsel procured a mental evaluation by Dr. Kirkland to “discover or get a lead on some possible mitigation evidence.” Dr. Kirkland‘s May 1994 report expressly stated Wood had “an IQ in the borderline range of intellectual functioning,” was “reading on a 3rd grade level,” and “could not use abstraction skills much beyond the low average range of intellect.” Counsel had read Dr. Kirkland‘s report, knew about Wood‘s intellectual functioning, and decided not to present that evidence.
Thus, this appeal is about whether not telling the jury about Wood‘s low intellectual functioning—shown clearly in Dr. Kirkland‘s pre-trial report—was ineffective assistance. The state courts expressly found: (1) “counsel decided that calling Dr. Kirkland would not be in Wood‘s best interest“; and (2) “counsel investigated a potential mental health defense, but decided against presenting it.” Applying Strickland, the state courts concluded that counsel‘s decision—not to call Dr. Kirkland and not to present Wood‘s mental deficiencies to the jury—was not deficient performance.
For several reasons, Wood has not established that the state courts’ decision
Second, Wood has not shown counsel‘s decision—not to call Dr. Kirkland to testify about Wood‘s mental deficiencies—fell below an objective standard of reasonableness. Chandler, 218 F.3d at 1312. After finding counsel decided calling Dr. Kirkland would not be in Wood‘s best interest, the
The state courts correctly followed Chandler, which instructs: (1) “Courts must indulge the strong presumption that counsel‘s performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional
Wood has not presented any evidence to rebut the presumption that experienced trial counsel‘s decision—not to call Dr. Kirkland and not to present mental health evidence—was reasonable. It was not the State‘s burden to elicit from Dozier, Ralph, or Trotter the reason why Dr. Kirkland‘s report of Wood‘s mental deficiencies was not presented to the jury in the penalty phase. Instead, it was Wood‘s burden to rebut the presumption of reasonableness with evidence, which he wholly failed to do.24
Even ignoring this strong presumption that experienced trial counsel exercised reasonable professional judgment, counsel‘s decision to present less than all available potential mitigation evidence was still not deficient performance. As the State points out, Dr. Kirkland‘s report contained information harmful to Wood, such as: (1) Wood‘s statement to Dr. Kirkland denying he drank alcohol on the day of Ruby‘s murder, which would have undercut Wood‘s defense that he was distraught and drinking heavily that day; (2) Dr. Kirkland‘s description of how Wood shot his prior girlfriend Siler through the window of her own residence after seeing her with another man, which Trotter had kept from the jury by successfully objecting to Siler testifying in the penalty phase; and (3) Wood‘s nineteen prior arrests between 1981 and 1984.25 If Dr. Kirkland had testified about Wood‘s mental deficiencies, this damaging information likely would have been brought out on cross-examination or in rebuttal.26 Further, if Dr. Kirkland had testified, the jury would have learned that Wood—despite his borderline intellectual
“[C]ounsel is not required to present all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with counsel‘s strategy. Counsel must be permitted to weed out some arguments to stress others and advocate effectively.” Haliburton v. Sec‘y for the Dep‘t of Corr., 342 F.3d 1233, 1243-44 (11th Cir. 2003) (quotation marks and citations omitted); see Herring v. Sec‘y, Dep‘t of Corr., 397 F.3d 1338, 1348-50 (11th Cir. 2005) (rejecting ineffective assistance claim where defendant‘s mother was only mitigation witness and counsel did not introduce evidence from hospital records in counsel‘s possession showing defendant‘s brain damage and mental retardation or call psychologist who evaluated defendant pre-trial as having dull normal intelligence); Hubbard v. Haley, 317 F.3d 1245, 1254 n. 16, 1260 (11th Cir. 2003) (stating this Court has “consistently held that there is ‘no absolute duty ... to introduce mitigating or character evidence‘” and rejecting claim that counsel were ineffective in failing to present hospital records showing defendant was in “borderline mentally retarded range“) (brackets omitted) (quoting Chandler, 218 F.3d at 1319).27
Our decision in Hubbard is particularly instructive as to why it was not deficient performance for counsel not to present evidence of Wood‘s low IQ. Hubbard claimed his trial counsel were ineffective for failing to introduce, as mitigation evidence, hospital records that showed his “verbal I.Q. of 77 and a full scale I.Q. of 80—both in the borderline mentally retarded range“—and his history of alcoholism. Id. at 1254 n. 16, 1260. The post-conviction state court concluded any evidence of Hubbard‘s mental state would have been more than offset by reports that determined Hubbard had not suffered from any mental disease or defect at the time of the murder. Id. at 1260. Similarly, Dr. Kirkland‘s report concluded Wood had borderline intellectual functioning but still had a complete memory of his behavior at the time of the murder and fully appreciated the criminality of his conduct.
For all these reasons, Wood has not shown the state courts’ conclusion—that his counsel were not ineffective in not calling Dr. Kirkland and presenting mental health evidence—was contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts.
J. Performance prong: additional investigation
Wood also claims: (1) his counsel did not conduct a thorough investigation and were
The Supreme Court has instructed that (1) strategic choices made after “‘thorough investigation[s]‘” are “virtually unchallengeable,” and (2) counsel has a separate duty under Strickland “to make reasonable investigations.” Wiggins v. Smith, 539 U.S. 510, 521-23, 123 S.Ct. 2527, 2535-36, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066). The Supreme Court has explained counsel‘s investigatory duty as follows:
“Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.”
Id. at 521-22, 123 S.Ct. at 2535 (emphasis added) (brackets omitted) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066). Here, the issue becomes: Did counsel, before deciding not to present evidence of Wood‘s borderline intellectual functioning, make “reasonable investigations” or “a reasonable decision that ma[de] particular investigations unnecessary?” Id.
As to counsel‘s investigation, the state courts found that while Wood claimed “more should have been done,” the record belied that conclusion. The
Indeed, it is undisputed that counsel knew about Wood‘s low IQ, borderline intellectual functioning, and third-grade reading level, because it was included in Dr. Kirkland‘s report. The
As to obtaining additional psychological evaluations beyond Dr. Kirkland‘s, Trotter testified that “Dozier had indicated that he had looked at the report,” “there was nothing in the report that merited going further,” and “at that point, he [Dozier] determined that we didn‘t need any further evaluators.” Thus Dozier decided no further psychological evaluations were needed. The state courts concluded Wood did not show that no reasonable attorney would have failed to ask for an additional mental health evaluation beyond Dr. Kirkland‘s; emphasized that Dozier was a “very experienced attorney[]“; and concluded that Wood had not shown Dozier‘s decision about further evaluations was unreasonable. The fact that no different mental health information was revealed further shows that Dozier‘s investigation was reasonable. In other words, Wood has not even shown that there was more Dozier needed to know from a further mental evaluation.29
Simply put, the Alabama courts’ decision—that Wood failed to establish his counsel‘s investigation was unreasonable—is amply supported by federal law. See Williams, 185 F.3d at 1242 (stating generally that counsel‘s decisions not to request additional mental evaluations are “virtually unassailable, especially when they are made by experienced criminal defense attorneys“); Mills v. Singletary, 161 F.3d 1273, 1286 (11th Cir. 1998) (concluding counsel did not provide ineffective assistance by not obtaining any mental health evaluation and by failing to “pursue mental health issues as mitigating evidence“); Bush v. Singletary, 988 F.2d 1082, 1089-92 (11th Cir. 1993) (determining counsel who made strategic decision not to undertake a formal investigation of psychological and mental health information did not provide ineffective assistance); see also Holladay v. Haley, 209 F.3d 1243, 1250 (11th Cir. 2000) (observing that counsel are “not necessarily required to seek independent mental evaluations in order to render effective assistance“); Mills v. Singletary, 63 F.3d 999, 1024 (11th Cir. 1995) (“The question is whether ending an investigation short of exhaustion[] was a reasonable tactical decision. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.“) (quotation marks and citation omitted).30
In Williams, this Court stressed that “[t]he Supreme Court has told us that ‘a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments‘“; that “the ‘correct approach toward investigation reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources‘“; and that “to be effective a lawyer is not required to ‘pursue every path until it bears fruit or until all hope withers.‘” Williams, 185 F.3d at 1236-37 (citations omitted). As we said in Williams, “[o]ther attorneys might have done more or less or they might have made the strategic calls differently, but we cannot say that no reasonable attorney would have done as [they] did.” Id. at 1244. Here, Wood has not shown that the state court decisions on his failure-to-investigate claim are contrary to, or an unreasonable application of, clearly established federal law.
K. Prejudice prong
The state courts concluded that even if evidence of Wood‘s mental deficiencies had been presented (through Dr. Kirkland or the
To evaluate prejudice, we must consider the total available mitigation evidence as adduced pre-trial, at trial, and at the
Specifically, Dr. McClaren described Dr. Ron Cavanaugh‘s 1995 evaluation of Wood, which determined Wood‘s full-scale IQ to be 69. Dr. McClaren pointed out that Dr. Cavanaugh had the impression that Wood functioned higher than mild mental retardation and “probably in the borderline range.” Dr. McClaren described his own IQ test of Wood in 2003—which also showed that Wood‘s true IQ was between 61 and 69—as “consistent” with Dr. Cavanaugh‘s. Dr. Prichard agreed with Dr. McClaren‘s testimony about Wood‘s IQ scores and that the data showed “consistently over time [Wood had] functioned right about the same intellectually.” Drs. McClaren and Prichard testified Wood “functions at a higher level than a ... mildly mentally retarded person,” and Wood‘s “adaptive skills are not impaired in the mentally retarded range.”
The teachers’ testimony about Wood‘s intellectual functioning was consistent with the findings of Drs. Kirkland, McClaren, and Prichard. Penn testified her special education students had IQs in the 60 to 80 range, and Wood was a “pretty average” student. Maddox testified the range of IQs for her special education students was from the low 50s to the upper 70s or even 80, and Wood probably had an IQ in the low to mid 60s. Penn and Maddox indicated Wood was neat, clean, attended school regularly, and did not fail his classes. The psychologists, Siler, Wright, and the teachers all provided extensive testimony about Wood‘s high level of adaptive functioning. Thus, the
Wood contends that his counsel should have introduced evidence of his limited intellectual functioning and special education classes to suggest to the jury that,
However, if counsel had introduced evidence of Wood‘s limited intellectual functioning and special education classes and attempted to paint Wood as not having sufficient intelligence to be morally culpable, the State in rebuttal could have introduced a wealth of harmful evidence that would have tipped the scales even more toward a death sentence. Presenting the
First, presenting mental health evidence would have allowed the State to introduce Dr. Kirkland‘s report about Wood‘s intellectual functioning, which contained harmful information, including: (1) Wood‘s statement to Dr. Kirkland denying that he drank alcohol on the day of Ruby‘s murder, which would have undercut Wood‘s defense that he was distraught and intoxicated at the time of the murder;33 (2) Wood had problems with anger and impulse control and felt injurious to others in the past; and (3) Wood had nineteen prior arrests between 1981 and 1984,34 including three arrests for theft of property, one for harassment, one for reckless endangerment, and one for criminal possession of a forged instrument. See Gaskin v. Sec‘y, Dep‘t of Corr., 494 F.3d 997, 1004 (11th Cir. 2007) (denying ineffective assistance claim and stating “the fact remains that further investigation and further evidence would have opened the door to damaging personal history evidence“); Parker v. Sec‘y for the Dep‘t of Corr., 331 F.3d 764, 788 (11th Cir. 2003) (concluding counsel was not ineffective for failing to introduce evidence of mental defects and personality disorder because, inter alia, “counsel feared that evidence of mental defects and personality disorder would undermine [the defendant‘s] credibility and be inconsistent with his alibi defense“); Robinson v. Moore, 300 F.3d 1320, 1348 (11th Cir. 2002) (denying ineffective assistance claim and noting “some potential mitigation witnesses might have harmed [the defendant‘s] case“).35
Third, Dr. Kirkland‘s report contained important details about Wood‘s prior shooting of Siler and how Wood shot her through the window of her own residence after seeing her with another man, which Trotter had kept from the jury by successfully objecting to Siler‘s testimony in the penalty phase. The jury would have learned that Wood had previously committed a crime frighteningly similar to his murder of Ruby, which would have demonstrated Wood calculated his killing of Ruby and had a pattern of attempting to kill his ex-girlfriends at their own homes. See Clisby v. State, 26 F.3d 1054, 1057 (11th Cir. 1994) (finding no prejudice where Clisby committed brutal murder and had killed before). Indeed, the jury might well have concluded that Wood, after shooting Siler, “learned his lesson” and realized that in order to be sure he killed an ex-girlfriend who had the audacity to date another man, he needed to do more than merely shoot through a window—he had to sneak into the house and shoot her from point-blank range in her bed. The Siler evidence in Dr. Kirkland‘s report would have completely undermined counsel‘s efforts to paint Wood as heartbroken and someone who killed in the heat of passion, and it also would have been contrary to the defense‘s successful effort to keep Siler from testifying.
Fourth, presenting evidence of Wood‘s borderline intellectual functioning and need for special education classes might have suggested that Wood was not in regular school classes but was a special education student with a low IQ reading at a third-grade level who left school for that reason. Such evidence might have weakened trial counsel‘s mitigation picture of Wood leaving high school only to help feed and support his five sisters.
Even if Wood‘s counsel could have somehow presented the potentially favorable evidence from Dr. Kirkland‘s report and the
Here, there were not one or two, but three statutory aggravating circumstances—(1) Wood murdered Ruby during a burglary; (2) Wood had a prior violent felony conviction; and (3) Wood murdered Ruby while on parole. The sentencing judge, who did have Dr. Kirkland‘s and another psychological report, even observed that Wood‘s aggravating circumstances “far outweigh[ed] the mitigating circumstances ... in all regards.” Thus, even when evidence of Wood‘s mental deficiencies was introduced, it was significantly undercut by Wood‘s high level of adaptive functioning, and the three aggravating factors still far outweighed such mitigation evidence.
In prior cases with three aggravating factors or a brutal murder, this Court concluded the defendant failed to show a reasonable probability that additional mitigation evidence would have changed the death sentence. See Callahan, 427 F.3d at 938; Clisby, 26 F.3d at 1057. Moreover, we have rejected prejudice arguments where mitigation evidence was a “two-edged sword” or would have opened the door to damaging evidence. Grayson v. Thompson, 257 F.3d 1194, 1227 (11th Cir. 2001); see Gaskin, 494 F.3d at 1004 (affirming death sentence where jury recommended death by a vote of eight to four, and noting further mitigation evidence “would have opened the door to damaging personal history evidence“).
The prejudice outcome in Callahan is instructive here. In Callahan, the district court granted the writ and found prejudice where counsel failed to present (1) evidence of Callahan‘s dysfunctional upbringing and (2) psychological evidence, such as Dr. Goff‘s evaluation that Callahan had a “mild cognitive deficit, which caused poor memory skills, and a paranoid personality disorder.” Callahan, 427 F.3d at 922, 926.36 Reversing and reinstating the death sentence, this Court noted that the state court found three aggravating factors, and that particularly planned or brutal murders make it difficult for even the best lawyers to convince a sentencer to forgo a death sentence. Id. at 938. In Callahan, the three aggravating factors similarly were: (1) the crime was committed while the defendant was on probation; (2) the defendant was convicted previously of a crime of violence; and (3) the murder was committed during a felony (kidnapping). Id.; see also Hubbard, 317 F.3d at 1260-61 (in light of three aggravating factors found by sentencing court, defendant failed to establish prejudice from counsel‘s failure to introduce hospital records indicating “mental retardation, and deprived upbringing“).
Likewise, in Clisby, this Court concluded the defendant had not shown prejudice
Given Wood‘s high level of adaptive functioning, nothing in Wood‘s
In summary, our AEDPA role is not to determine de novo whether Wood‘s counsel were ineffective or whether Wood was prejudiced. We are concerned only with whether the state courts’ findings and conclusions—that Wood did not carry his burden to show deficient performance or prejudice—were contrary to, or an unreasonable application of, clearly established federal law, or were based on an unreasonable determination of the facts. Again, AEDPA “limits our review of the decisions of the state courts and establishes a ‘general framework of substantial deference’ for reviewing ‘every issue that the state courts have decided.‘” Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007) (citation omitted), cert. denied, U.S. -, 128 S.Ct. 2053, 170 L.Ed.2d 798 (2008). Based on the record before us, Wood has not satisfied AEDPA‘s requirements as to his ineffective assistance claim.
VI. Conclusion
We affirm the district court‘s November 20, 2006 order denying Wood‘s Atkins and Batson claims but reverse the order‘s grant of the writ based on ineffective assistance of counsel and remand with instructions to deny Wood‘s
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
BARKETT, Circuit Judge, concurring in part, dissenting in part:
I concur with the majority opinion‘s disposition of Wood‘s claims based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). I must respectfully dissent, however, from the majority‘s holding that Wood is not entitled to habeas relief on his claim of ineffective assistance during the penalty phase of his trial, because I believe that conclusion ignores specific and direct evidence of ineffectiveness of counsel in favor of nothing but pure speculation that the failure to investigate and present mitigating evidence was a “strategic decision.”
No evidence of Wood‘s mental retardation was ever presented to the jury. In
A fair reading of the entire record compels the conclusion that Wood‘s lawyers, in fact, did not adequately prepare for the penalty phase and their direct testimony concedes as much. Wood‘s counsel were aware that Wood suffered from mental impairments from the very beginning of their trial preparation. Despite their knowledge, counsel did not look into, follow up on, or further pursue this critical source of potentially mitigating evidence. The egregious failures of Wood‘s defense counsel to investigate and develop available mitigating evidence for the penalty phase of Wood‘s capital case, as delineated below, epitomizes the sort of deficient performance that an ineffective assistance claim exists to guard against. Thus, I must dissent.
I. Counsel must make an informed decision regarding the investigation and presentation of mitigating evidence
To succeed on a claim of ineffective assistance of counsel, a petitioner “must show that counsel‘s representation fell below an objective standard of reasonableness” and must demonstrate that “any deficiencies in counsel‘s performance [were] prejudicial ....” Strickland, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, a petitioner must demonstrate that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.
With reference specifically to a lawyer‘s duty to investigate, the Supreme Court held in Strickland that:
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.
Id. at 691. The Supreme Court has made clear that the obligation to present specific mitigating evidence is separate and distinct from a lawyer‘s obligation to adequately investigate the background of the defendant in order to make an informed judgment about whether certain evidence should be presented. See gins v. Smith” cite=“539 U.S. 510” pinpoint=“522-23” court=“U.S.” date=“2003“>Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“[O]ur principal concern in deciding whether [Wiggins’ lawyers] exercised ‘reasonable professional judgmen[t]’ is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel‘s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.” (emphasis in original) (citation omitted)).
This circuit has repeatedly held that “in preparing for a death penalty case, ‘a[n] attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant‘s background, for possible mitigating evidence,‘” Dobbs v. Turpin, 142 F.3d 1383, 1387 (11th Cir. 1998) (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)) (brackets in original), and that “[t]he failure to do so may render counsel‘s assistance ineffective.” Id. (quoting Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995)). We have also “reject[ed] the notion that a ‘strategic’ decision can be reasonable when the attorney has failed to investigate his options and [to] make a reasonable choice between them.” Dobbs, 142 F.3d at 1388 (quoting Baxter, 45 F.3d at 1514; citing Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)). Simply put, “strategic decisions ... ‘must flow from an informed decision.‘” Dobbs, 142 F.3d at 1388 (quoting Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989)). No such strategic decisions could possibly have been made in this case because counsel had failed to adequately investigate the available mitigating evidence.
II. The record reflects totally inadequate penalty phase preparation
A careful review of the record clearly demonstrates the appalling lack of preparation that went into the penalty phase of Wood‘s trial. Cary Dozier, Frank Ralph and Ken Trotter were court-appointed attorneys representing Wood. At the time, Trotter had been practicing law for only about five months.2 Ralph testified that Trotter “was very inexperienced. He was very nervous about this whole case. And it was quite evident just talking with him how troubled he was by it.”
Despite Trotter‘s lack of experience, it is undisputed by the direct evidence in the record that he was given primary responsibility for the penalty phase of Wood‘s trial by the two more experienced attorneys.3
Similarly, although Dozier claimed that all three lawyers “participated” in the various aspects of Wood‘s case, he could not specify any particular matter that he handled with respect to the penalty phase. Moreover, Dozier‘s statements pertaining to any “participation” by all three lawyers appear to be primarily directed to the guilt phase, and not the penalty phase. Dozier testified that “[Trotter] did basically most of the motions ... [Dozier] and Frank [Ralph] and Trotter put them all together, and we basically let Trotter handle the sentencing part of it.” The record reflects, however, that there were no written motions filed during the penalty phase of the trial.4 Dozier did not recall whether he handled any of the witnesses for the penalty phase or whether he read Dr. Kirkland‘s report before trial or met with Dr. Kirkland, but he was “sure Frank [Ralph] or Trotter or some of us did.” Dozier could not remember counsel‘s penalty phase strategy, noting that the “[o]nly thing [he] remember[ed] was something about [Wood‘s] childhood, and [he did not] recall what it was all about.” Moreover, Dozier did not recall even having considered introducing evidence at the penalty phase based on Dr. Kirkland‘s findings. Dozier reiterated that it was “Trotter [who] handled the aggravating circumstances as far as the sentencing process went [and that] [b]asically [he (Dozier)] and Mr. Ralph were basically the trial lawyers.” Dozier again stated that he and Ralph “basically designated Trotter to do the sentencing aspect of it.”
Trotter likewise specifically verified that he had been in charge of the penalty phase.5 According to Trotter‘s testimony at the
Although the majority attempts to portray Dozier as “lead counsel” throughout both the guilt and penalty phase, this is merely the majority‘s characterization of his role. (Maj. Op. at 1289, 1290, 1291, 1294.) None of Wood‘s counsel specifically testified that Dozier was “lead counsel,” and in fact testified directly to the contrary as to the penalty phase. Trotter specifically testified that Dozier decided that Trotter was to “assist primarily with the penalty phase—preparation of the penalty phase” but that ultimately Trotter was to replace Ralph as the person “primarily responsible for the penalty phase.”
As soon as the guilt/innocence phase ended and Wood was convicted, the trial judge announced that the penalty phase would begin the following day. Trotter later testified that, at the time, he “didn‘t think [they] were actually prepared to move forward with the penalty phase of the trial when [they] did.”6 Nonetheless, neither Trotter nor the other two attorneys moved for a continuance in order to afford them time to prepare adequately for the penalty phase. The next day, when the penalty phase before the jury was about to begin, Trotter, for the first time, asked the trial court for a psychological evaluation of Wood.
Although Dr. Kirkland had prepared a psychological report four months earlier, primarily to assess Wood‘s competency for trial, Trotter explained to the court that there had been no follow-up.7 Dr. Kirkland had found that Wood was competent to stand trial and was able to appreciate the criminality of his acts at the time of the offense. However, his report also noted that Wood was “reading on less than a 3rd grade level,” “could not use abstraction skills much beyond the
In requesting further psychological testing of Wood immediately before sentencing, Trotter told the court what should have been obvious to any reasonable lawyer upon initially reading the report: that Dr. Kirkland “indicates that the defendant may have psychological problems that need further assessment.” Indeed, Trotter conceded that even though the report had been completed months earlier, “[n]o further investigation ha[d] been done, psychologically, of those points.” Knowing that there had been a failure to pursue available mitigating evidence, and that it was too late to present it to the jury, Trotter had to ask, at that late date, that “prior to any final sentencing by the Court ... there be further psychological evaluation done of the defendant, although that won‘t be admissible to this jury, prior to the judge rendering his final verdict.”9 The judge indicated that he would “consider that [request] after we finish today.” Remarkably, however, neither Trotter nor Ralph nor Dozier followed up with the request. The record reflects that the jury returned the verdict recommending the death penalty that same day, and that neither the judge nor defense counsel raised the issue of the psychological evaluation again.
Moreover, despite counsel‘s knowledge that Wood was mentally impaired, Trotter never asked any of the family witnesses questions regarding Wood‘s mental impairments when he called them to testify, nor did Trotter ever try to directly contact Wood‘s former teachers. In addition, though Trotter had issued a subpoena for Wood‘s school records, no records were ever produced, and, amazingly again, counsel never followed up or sought legal action to enforce the subpoena. Discovering at the last minute that no records had ever been produced, Trotter once again had to make an untimely request to the judge. Just before the jury was seated for the penalty phase, Trotter, for the first time, brought to the judge‘s attention that he had not received the records to which he was entitled from the “Board of Pardons and Paroles and the various state prisons in which Mr. Wood may have been incarcerated,” as well as records from the “Department of Human Resources.” Though the request for these documents had been granted some two months earlier, it was not until the morning the penalty phase was to begin that Trotter finally brought this to the court‘s attention. None of Wood‘s lawyers ever saw these documents or ever considered the mitigating evidence they contained.
Shortly before the sentencing hearing in front of the judge was to begin, Trotter wrote to his co-counsel reiterating that an independent psychological evaluation should be conducted, “even if that means asking for a postponement of the sentencing hearing [before the judge].” Notwithstanding his last-minute concerns, however, Trotter did not seek a continuance after his co-counsel expressed a belief that the judge would not likely grant one. Moreover, Trotter again failed to follow up on his request for a psychological evaluation to be, at least, presented to the judge.
In a last-ditch attempt, and having not pursued the psychological evaluation he believed to be necessary, Trotter argued to the judge at the sentencing hearing that the court should consider Dr. Kirkland‘s report as evidence of Wood‘s mental impairments for mitigation purposes—even though the report had been prepared primarily to evaluate Wood‘s mental state at the time of the crime and his competency to stand trial. He stated: “[A]s reported in the psychological report by Dr. Kirkland, [Wood] cannot use abstraction skills much beyond the low average range of intellect, and that he is at most functioning in the borderline range of intellectual functioning ... would mitigate any aggravating circumstances in this case ....” He presented no other evidence to support Dr. Kirkland‘s statements.
Simply put, the weight of the evidence in the record demonstrates that Trotter, an inexperienced and overwhelmed attorney, was given primary responsibility for investigating and preparing for the penalty phase of Wood‘s trial, and he was not given any significant assistance from the rest of the trial team. He realized too late what any reasonably prepared attorney would have known: that evidence of Wood‘s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing. Due to Trotter‘s inexperience, and to Ralph and Dozier‘s lack of participation in preparation for the penalty phase, no investigation of Wood‘s mental retardation was conducted at all, and that alone is the reason it was never presented to the jury in mitigation. There can be no other reasonable reading of this record.
Counsel‘s failure to investigate and present the critical evidence of Wood‘s mental impairments to the jury certainly “fell short of the standards for capital defense work articulated by the American Bar Association,” Wiggins, 539 U.S. at 524, 123 S.Ct. 2527, that prevailed at the time of Wood‘s trial. See generally ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases at 11.4.1(C), 8.1 (commentary) (1989) (requiring counsel to engage in sufficient “efforts to discover all reasonably available mitigating evidence,” and to “conduct a thorough investigation of the defendant‘s life history and background.” (emphasis added)). Their deficient representation violated Wood‘s Sixth Amendment right to
III. No informed strategic decision was ever made to exclude evidence of mental retardation
Given the totally inadequate penalty phase preparation that the record reveals, as delineated above, it is clear that Wood‘s counsel‘s failure to investigate or present mitigating evidence of Wood‘s mental impairments resulted from their sheer neglect. The majority‘s attempt to characterize their failure as a strategic decision “resembles more a post hoc rationalization of counsel‘s conduct than an accurate description of their deliberations prior to sentencing.” Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527. There is no basis in this record to conclude that the failure to investigate was, or could have been, a reasonable strategic decision made by Wood‘s counsel.11
First, the majority portrays Dozier as the primary decision-maker throughout trial, including during the penalty phase preparations. The majority claims that as “lead counsel,” Dozier was responsible for deciding against presenting any mitigating evidence of Wood‘s mental impairments. However, as more fully explained above, Dozier confirmed that he and Ralph “basically designated Trotter to do the sentencing aspect of [the trial].” The record is clear that Dozier was not the “lead counsel” in charge of penalty phase preparations.
Finally, even if Wood‘s counsel had decided not to pursue evidence of his mental impairments, such a decision would have been unreasonable given their absolute lack of investigation. See Dobbs, 142 F.3d at 1388 (“[We] reject[] the notion that a ‘strategic’ decision can be reasonable when the attorney has failed to investigate his options and [to] make a reasonable choice between them.“); Belmontes, 529 F.3d at 857 (“[A] decision not to present a particular defense or not to offer particular mitigating evidence is unreasonable unless counsel has explored the issue sufficiently to discover the facts that might be relevant to his making an informed decision.“). Defense counsel‘s failure to investigate and/or introduce mitigating evidence of Wood‘s mental impairments “resulted from inattention, not reasoned strategic judgment.” Wiggins, 539 U.S. at 526, 123 S.Ct. 2527.
IV. The failure to investigate and present mental mitigating evidence was prejudicial
I agree with the district court that Wood was prejudiced by counsel‘s ineffectiveness. In assessing the prejudice caused by counsel‘s ineffective assistance at the penalty phase of a capital trial, we reweigh the evidence in aggravation against the totality of available mitigating evidence, which includes both the evidence introduced at trial and the evidence introduced in the habeas proceedings. Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wiggins, 539 U.S. at 534, 123 S.Ct. 2527.
Given the nature of the State‘s evidence in aggravation of Wood‘s offense, as described in the majority opinion, evidence of Wood‘s mental deficiencies was essential to mitigation because it would have offered the necessary context for the jury to have properly evaluated Wood‘s aberrant behavior before recommending a sentence.
However, instead of presenting such evidence, Trotter‘s penalty phase case consisted of testimony from three of Wood‘s family members—Wood‘s father and two of his sisters—whose testimony made no mention of Wood‘s mental impairments and amounted to little more than a plea for juror sympathy. At the end of the one-day penalty phase, the jury recommended the death penalty by a vote of ten to two. In the subsequent sentencing hearing, the judge found that the State had proven three aggravating circumstances and that there were no mitigating circumstances, and sentenced Wood to death by electrocution.
At the
On this record, I agree with the district court that there is a reasonable probability that the outcome of Wood‘s penalty phase would have been different had Wood‘s lawyers rendered effective assistance of counsel. In addition to any mental health experts that Wood‘s counsel might have presented, counsel could have
The majority claims that Wood was not prejudiced by his counsel‘s failure to call Dr. Kirkland as a witness or introduce Dr. Kirkland‘s report because doing so would have opened the door to the admission of potentially damaging content in the report, namely Wood‘s denial that he had been drinking on the day of the offense, a list of Wood‘s prior arrests, and the details of Wood‘s prior violent felony conviction. (Maj. Op. at 1305–06, 1310-13.) This argument is purely speculative, and it is inapposite because it does not address Wood‘s claim that his counsel failed to even investigate his mental deficiencies once those deficiencies had been discovered. The discharge of that duty could have led counsel to evidence which would not have had any detrimental effect, such as the testimony of his teachers. Moreover, had counsel properly investigated, they would have been able to assess the admissibility of Dr. Kirkland‘s testimony in light of the testimony of other witnesses or existing law pertaining to the admission of evidence at that time.15 The likelihood that counsel could have put on the mitigating evidence
The majority opinion also suggests that because Wood was in special education and mentally impaired, the jury would have been less likely to believe that he dropped out of school to support his family. (Maj. Op. at 1306, 1312-13.) Assuming that a jury would have used evidence of Wood‘s mental impairments against him directly contravenes the Supreme Court and Eleventh Circuit cases that have consistently held that diminished mental capacity may suggest to a jury that a defendant is in fact “less morally culpable,” and that evidence of even mild retardation is mitigating evidence that should be investigated and presented to the jury. See Atkins, 536 U.S. at 306-07, 317-18, 122 S.Ct. 2242; Cunningham v. Zant, 928 F.2d 1006, 1017-19 (11th Cir. 1991).
The trial court in Wood‘s case found that there were no mitigating factors to balance against the aggravating factors. In a case such as this, where evidence of Wood‘s mental impairments could have mitigated his sentence, counsel‘s failure to present it was a fatal “breakdown in the adversarial process,” Collier v. Turpin, 177 F.3d 1184, 1204 (11th Cir. 1999), which must undermine our confidence in the application of the death penalty in this case. Although the nature of the crime was serious, it was not so heinous as to foreclose the possibility that a reasonable jury might have returned a different sentence had they been presented with the substantial mitigating evidence of Wood‘s mental status, which is discussed above. See, e.g., Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (finding prejudice where defense counsel failed to present mitigating evidence of the defendant‘s abusive childhood and mental health issues in case where the defendant repeatedly stabbed the victim and set him on fire). Any other suggestion not only impermissibly abrogates the critical role of defense counsel by relieving them altogether of any responsibility to present mitigating evidence, but it also usurps the role of the jury by condemning to death all those charged with particular crimes, regardless of their individual circumstances, in direct contravention of both Supreme Court and Eleventh Circuit precedent. See, e.g., Kansas v. Marsh, 548 U.S. 163, 175, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) (“[O]ur precedents ... oblige sentencers to consider [mitigating evidence] in determining the appropriate sentence.” (emphasis added)); Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“Mitigating evidence, when available, is appropriate in every case where the defendant is placed in jeopardy of receiving the death penalty.” (emphasis added)).
Finally, I note that even in the absence of any mitigating evidence of mental impairments, the jury vote recommending the death penalty was ten to two, which is the minimum required to recommend a sentence of death under Alabama law. See
V. Conclusion
In sum, I agree with the district court that there was clear evidence available that Wood “suffers some of the same limitations of reasoning, understanding, and impulse control as those described by the Supreme Court in Atkins. [Thus, c]ounsel‘s failure to investigate this issue at all or to present any of this evidence seriously undermines our confidence in the application of the death sentence.” Brownlee, 306 F.3d at 1073. As in Wiggins, Wood was undoubtedly prejudiced by Trotter‘s “halfhearted mitigation case.” 539 U.S. at 526, 123 S.Ct. 2527. For the foregoing reasons, I agree with the district court‘s finding that the state court‘s application of Strickland to the facts of this case involved an unreasonable application of clearly established federal law.
Herbert WILLIAMS, Jr., Petitioner-Appellant,
v.
Commissioner Richard F. ALLEN, Respondent-Appellee.
No. 07-11393.
United States Court of Appeals, Eleventh Circuit.
Sept. 17, 2008.
Notes
The majority also references nineteen prior arrests between 1981 and 1984 which Dr. Kirkland mentions in his report as potentially damaging evidence. However, many of these arrests never resulted in convictions and the existing law pertaining to admission of such evidence was favorable to Wood. For example, see United States v. Eubanks, 876 F.2d 1514, 1516-17 (11th Cir. 1989) (inappropriate for prosecutor to question defendant about prior arrests that did not result in convictions); United States v. Lay, 644 F.2d 1087, 1091 (5th Cir. 1981) (improper for prosecutor to question defendant about prior arrest without conviction); United States v. Labarbera, 581 F.2d 107, 108-09 (5th Cir. 1978) (mere arrest without conviction for any offense inadmissible to show general lack of credibility); United States v. Hodnett, 537 F.2d 828, 829 (5th Cir. 1976) (same); United States v. Garcia, 531 F.2d 1303, 1306-07 (5th Cir. 1976) (same).
This case is stronger than Callahan for triggering the presumption of reasonable professional judgment, because Dozier testified he would have used what was in Dr. Kirkland‘s report if Dozier had found it useful, and Trotter testified Dozier reviewed Dr. Kirkland‘s report and decided nothing merited going further.
Here, in stark contrast to Wiggins, Wood‘s counsel had investigated and knew about his borderline intellectual functioning before deciding not to present mental health evidence to the jury. Moreover, the post-conviction evidence was consistent with Dr. Kirkland‘s report and the other evidence already in counsel‘s possession, and there was certainly no new post-conviction evidence of prolonged and serious sexual or physical abuse. And Wood‘s counsel actually pursued a mitigation strategy—focusing on Wood‘s difficult upbringing and childhood, his role as a family leader, and his sadness over Ruby—instead of simply re-trying the guilt issue. This case is nothing like Wiggins.
In Brownlee, counsel conducted no investigation and presented no mitigating evidence at all, and the State did not even contest Brownlee‘s claim that his counsel‘s performance was deficient. 306 F.3d at 1068-69. Moreover, the post-conviction evidence in Brownlee revealed a wealth of evidence of which counsel was not aware, such as the defendant‘s schizotypal personality disorder, seizure disorder, prior visit to a psychiatric hospital, episode in which he jumped out of a second-story window, earlier head injury from being shot, history of drug abuse, and borderline mental retardation. Id. at 1053, 1055-56.