Petitioner Frank Walls ("Petitioner"), a Florida death-row inmate, appeals the district court's denial of his section 2254 petition for a writ of habeas corpus. Under the deferential standard set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Petitioner is entitled to no relief. We affirm the district court's denial of the writ.
In 1987, Petitioner burglarized a home and murdered the two people inside, Edward Alger and Ann Peterson. Following his arrest, Petitioner gave a statement to the investigators; this statement was recorded. During this statement, an investigator asked Petitioner several times whether he had sex with Peterson before killing her; each time Petitioner answered that he did not know. Petitioner ultimately was not charged with a sexual crime.
At trial, the State played for the jury the entire recorded statement (without objection from defense counsel). Petitioner was convicted of felony murder for Alger's death, and both felony murder and premeditated murder for Peterson's death. The jury recommended life imprisonment for the murder of Alger, and—by a seven-to-five vote—a death sentence for the murder of Peterson; the trial court accepted these recommendations. On direct review, the Florida Supreme Court reversed Petitioner's convictions because of violations the State committed in investigating Petitioner; the court remanded for a new trial. Walls v. State, 580 So.2d 131, 135 (Fla. 1991) ("Walls I").
There was a second trial. During jury selection for Petitioner's retrial, the State used a peremptory challenge to strike DG, a 24-year-old black man. Petitioner's trial counsel objected to this peremptory challenge (among others); about DG, the prosecutor responded that he had exercised the peremptory challenge because DG was roughly the same age as Petitioner, had expressed some opposition to the death penalty, and also because the prosecutor "personally sensed some hostility" in
Petitioner was again convicted of felony murder for Alger's death, and felony murder and premeditated murder for Peterson's death. Petitioner again received life imprisonment for Alger's death,
Petitioner raised a number of issues on direct review, including an equal-protection claim based on the peremptory challenge the State exercised against DG. The Florida Supreme Court rejected all of Petitioner's arguments and affirmed his convictions and sentences. Walls v. State, 641 So.2d 381, 391 (Fla.1994) ("Walls II").
Later, Petitioner filed a motion for state-court post-conviction relief. See FLA. R.CRIM. PRO. 3.850. Among other things, Petitioner claimed that his trial lawyers— both at the guilt phase and the penalty phase—were ineffective for failing to exclude the investigator's questions about sexual assault from the recorded statement played for the jury. The state trial court conducted an evidentiary hearing on this issue; during this hearing the court heard testimony from Petitioner's guilt-phase and sentencing-phase lawyers. After this evidentiary hearing, the trial court rejected Petitioner's ineffective-assistance claim as well as all of his other claims; the Florida Supreme Court affirmed the denial of 3.850 relief and also denied Petitioner's application for a writ of habeas corpus. Walls III, 926 So.2d at 1181.
Petitioner then filed a petition for a writ of habeas corpus in federal district court. The district court denied the petition in a 134-page order, but the court granted Petitioner a certificate of appealability ("COA") on two issues:
In examining the district court's denial of habeas relief, we review factual findings for clear error and review questions of law and mixed questions of law and fact de novo. Johnson v. Sec'y, DOC, 643 F.3d 907, 929 (11th Cir.2011).
Our review is also constrained by AEDPA, which provides that, in reviewing a state prisoner's habeas claims that have already been considered and rejected by a state court, we cannot grant relief unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).
A. Ineffective Assistance
Petitioner claims that he received the ineffective assistance of counsel. To
In reviewing ineffective-assistance claims under AEDPA, the question before us is not whether Petitioner's lawyers' performance fell below the Strickland standard, but instead "whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011).
Petitioner's argument is that his guilt-phase and penalty-phase trial lawyers were ineffective for failing to exclude the references to a possible sexual crime from the recorded statement that was played for the jury.
Petitioner's sentencing-phase counsel also testified at the evidentiary hearing; this lawyer explained that the recorded statement was "a huge part of our strategy" for both the guilt phase and the penalty phase, because it supported the defense theory of "a burglary gone awry." Sentencing-phase counsel explained that the point in the recorded statement at which Petitioner was asked about a sexual battery
After hearing this testimony the Florida trial court concluded that Petitioner's trial lawyers had not performed deficiently. The Florida Supreme Court agreed, concluding that "[t]he record clearly supports the trial court's conclusion that counsel made a tactical decision not to redact [Petitioner's] taped confession because the tape in its entirety helped prove the defense's theory of the case." Walls III, 926 So.2d at 1166.
The Florida Supreme Court's ruling that Petitioner has not shown ineffective
We begin with the "strong presumption" that counsel's conduct was reasonable, Strickland, 104 S.Ct. at 2065; and that presumption is even stronger when we examine the performance of experienced counsel. Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.2000) (en banc).
We also accept that the trial lawyers' decision not to challenge the references to a sexual crime was part of a broader plan of being forthcoming with the jury. The Florida Supreme Court found "clear support" in the record establishing that the lawyers' decision was a tactical one. Walls III, 926 So.2d at 1166. That court's decision on this issue—a question of fact— is presumptively correct, Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir.2011), and Petitioner has offered no evidence to rebut that determination, much less the clear and convincing evidence that AEDPA requires when we review state courts' factual findings. 28 U.S.C. § 2254(e)(1). Given that the Florida Supreme Court had before it the sworn testimony of Petitioners' two lawyers, both agreeing that their decision was a tactical one, we cannot say that that court's factual determination was unreasonable.
Further, we consider the trial lawyers' plan a reasonable one. Chandler, 218 F.3d at 1314 n. 14 ("[A] court must not second-guess counsel's strategy."). Openness in a jury trial is a move that can pay off. We have previously recognized the reasonableness of being forthcoming with the jury. See Straight v. Wainwright, 772 F.2d 674, 681 (11th Cir.1985) (counsel was not ineffective for failing to object to a question on cross-examination, where counsel was pursuing a plan of being "truthful and open" with the jury). Moreover, we have recognized that it can be reasonable to let incriminating evidence come to the jury's attention. See Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (in a prosecution for the kidnapping, sexual battery, and murder of a six-year old boy, counsel was not ineffective for allowing prosecutors to put into evidence the male defendant's confession to sexual relations with 45 boys and young men, where counsel's plan was to "bring into play [the defendant's] sexual proclivities").
Here, the lawyers' openness was particularly reasonable given that the jurors knew they were not trying Petitioner for a sexual crime against Peterson. This openness—with potential risks but also potential rewards—was exactly the sort of decision Strickland allows lawyers to make.
Petitioner has pointed to no Supreme Court precedent establishing that the Florida Supreme Court's decision—that Petitioner's trial lawyers had performed well enough—was contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts.
B. Peremptory Challenge
Petitioner also contends that the State improperly used a peremptory challenge to remove a black juror, DG, based solely on that juror's race.
DG: Probably vote for it, I'm not sure.
When defense counsel later objected to the State's peremptory challenge against DG, the prosecutor explained that
The state trial court permitted the peremptory challenge. On direct appeal, the Florida Supreme Court noted that DG "had expressed discomfort with the death penalty," and concluded that this discomfort was "a sufficient race-neutral reason for the State to exercise its peremptory." Walls II, 641 So.2d at 386. So, the Florida Supreme Court rejected Petitioner's claim on this issue.
The believability of a prosecutor's race-neutral explanations for striking a juror is a "pure issue of fact ... peculiarly within a trial judge's province." McNair v. Campbell, 416 F.3d 1291, 1310 (11th Cir.2005) (internal quotation marks and citation omitted). In addition, under AEDPA we presume the correctness of the state court's factual determinations; Petitioner bears the burden of rebutting this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner has not carried this burden, and so we cannot say that the Florida Supreme Court unreasonably accepted the State's race-neutral explanation for striking DG. When asked whether he "ha[d] a feeling about the death penalty that makes you wonder whether it's the right thing to do or not," DG answered, "Sometimes." And he seemed to express further hesitation about capital punishment when he was asked whether he would support a referendum against the death penalty.
Nor was the Florida Supreme Court's decision contrary to, or an unreasonable application of, federal law. Even if we assume that Petitioner has made the required prima facie showing of racial discrimination—see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986)—we accept the State's race-neutral explanation that was based on Petitioner's opposition to the death penalty. "[C]learly established federal law, as determined by holdings in Supreme Court decisions, does not prohibit prosecutors from using their peremptory strikes to remove venire members who are not ardent supporters of the death penalty...." Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313, 1317 (11th Cir.2010). Nothing pertinent to the law has changed since Bowles was decided: no United States Supreme Court precedent establishes a basis for challenging the Florida Supreme Court's decision in this case.
Moreover, Petitioner has failed to offer evidence—for example, a comparative analysis of jurors who the State accepted and rejected, to show that the State did not attempt to remove similarly situated nonblack jurors—even suggesting that the prosecutor's race-neutral explanation was merely pretextual. Petitioner, in short, is unable to establish purposeful discrimination. The Florida Supreme Court's decision rejecting Petitioner's Batson claim was neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court.
For the foregoing reasons, we AFFIRM the district court's denial of habeas relief for Petitioner.