Petitioner Thomas Dewey Pope was convicted on three counts of first degree murder for the deaths of Caesar Di Russo, Albert Preston Doranz, and Kristine A. Walters, and was sentenced to death in Florida's state courts for the murder of Walters. On collateral review of this capital case, the district court granted in part the petitioner's federal application for writ of habeas corpus, finding that trial counsel was ineffective during the penalty phase of the trial by failing to develop and present substantial mitigating evidence to the jury, and by failing to object to the prosecutor's closing argument to the jury that Pope preferred a death sentence over life imprisonment. The district court rejected the remainder of Pope's petition, holding, among other things, that trial counsel was not ineffective during the guilt phase of the trial. While we affirm the district court's denial of habeas relief as to Pope's guilt-phase ineffectiveness claims, we vacate the district court's grant of habeas relief concerning Pope's penalty-phase ineffectiveness claims, and remand for the district court to hold an evidentiary hearing on those claims.
A. The Murders and Pope's Trial
Based on the evidence presented at trial, the Florida Supreme Court recited the essential facts of the triple homicide in this way:
Pope v. State, 441 So.2d 1073, 1074-75 (Fla. 1983). As noted, Pope's ex-girlfriend, Susan Eckard,
Pope was convicted on three counts of first degree murder for the deaths of Caesar Di Russo, Albert Preston Doranz, and Kristine A. Walters. After the jury's guilty verdict, but before the penalty phase, Pope and his trial counsel
During closing arguments, the prosecutor informed the jury that "Mr. Pope has announced that he would rather receive a death penalty than life imprisonment. I would say to you that your verdict, your recommendation, should not be based on that." Notably, defense counsel Eber did not object to this salient comment. Thereafter, the jury recommended life sentences for the murders of Di Russo and Doranz, and the death penalty for the murder of Walters. The jury voted nine to three for death.
The trial judge adopted the jury's sentencing recommendations. In so doing,
B. Post-Trial State Court Proceedings
Pope filed a direct appeal to the Florida Supreme Court, arguing, among other things, that the trial court erred in allowing Lagle's videotaped deposition to be presented to the jury. The Florida Supreme Court affirmed the convictions and sentences. Pope, 441 So.2d at 1074.
Pope's collateral attack began when he filed in state court a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming the ineffective assistance of counsel. The motion raised twelve errors by trial counsel, including the five guilt-phase ineffectiveness claims before us in this appeal, as well as two penalty-phase ineffectiveness claims: (1) counsel's failure to object to improper comments made by the court and the prosecutor; and (2) counsel's failure to present mitigating evidence drawn from Pope's background. The trial court held that except for two of his claims, Pope's allegations were either insufficient to state a claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or were specifically refuted by the record.
As for the two remaining claims, the court rejected the first one—concerning ineffective assistance stemming from the introduction of Lagle's videotaped deposition—because it found, after conducting an evidentiary hearing on the issue, that Lagle was indeed unavailable for trial. An evidentiary hearing was set on the second of Pope's remaining claims—that his trial counsel was ineffective for using the "Vietnam Syndrome Defense" against Pope's wishes. After the evidentiary hearing, the court denied this claim too, finding that Pope knew, understood, and concurred in his trial counsel's opinion that Dr. William Weitz's testimony regarding the Vietnam Syndrome Defense should be used during the guilt phase of the trial.
On appeal to the Florida Supreme Court, Pope argued that the trial court improperly failed to hold an evidentiary hearing on several claims raised in his motion for new trial, including the remaining guilt-phase ineffectiveness claims, as well as the penalty-phase ineffectiveness claims listed above. The Florida Supreme Court affirmed the trial court's denial of Pope's Rule 3.850 motion. Pope v. State, 569 So.2d 1241 (Fla. 1990) (per curiam).
During the pendency of the Rule 3.850 motion, Pope filed a petition for writ of habeas corpus with the Florida Supreme Court alleging ineffectiveness of appellate counsel. The Florida Supreme Court denied Pope's petition. Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986). Of particular relevance for our purposes, the court agreed with Pope's claim that the prosecutor had made "clearly improper" comments during closing argument of the penalty phase, the "most bothersome" being "the comment on the petitioner's preference for death." Id. at 803. Nonetheless,
Following his initial state Rule 3.850 motion and petition for writ of habeas corpus, Pope filed in state court several other Rule 3.850 motions, several petitions for writ of habeas corpus, and miscellaneous motions attempting to raise new claims, and to cure procedurally defaulted claims and exhaust claims that the federal court subsequently deemed unexhausted. All of these filings were denied in turn. See, e.g., Pope v. State, 702 So.2d 221 (Fla. 1997) (per curiam), reh'g denied (Fla. 1998).
C. Federal Post-Conviction Proceedings
On September 9, 1991, Pope sought collateral relief in the United States District Court for the Southern District of Florida, filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pope raised seven claims, some with multiple sub-claims, resulting in 61 claims in all. Most significantly for our purposes, Claim II alleged the ineffective assistance of penalty-phase counsel. The State argued failure to exhaust as a defense to this claim and others; the district court agreed, dismissing without prejudice Pope's petition because it "contain[ed] both exhausted and unexhausted claims." Notably, the district court did not find Claim II unexhausted. Once the district court entered its order, the Clerk of Court entered a notation on the docket sheet characterizing the case as "closed."
Following litigation in state court to exhaust the unexhausted claims, Pope returned to federal district court and amended his federal habeas corpus petition on February 19, 1999. Along with his amended petition, Pope moved to "reopen proceedings." Claim II as developed in the amended petition was nearly identical to Claim II in Pope's original 1991 petition. The State again argued that Claim II was unexhausted. The district court rejected that defense, and ordered the State to respond on the merits to this claim. Thereafter, in July 2000, the State argued in a supplemental response to Pope's amended petition that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 100 Stat. 1214 (1996) ("AEDPA"), applied to the case. Pope replied that the State had waived its AEDPA argument because it did not mention AEDPA in its prior answer to Pope's amended petition.
Also significant for our purposes, Pope sought an evidentiary hearing from the district court on all of his claims. The motion was denied and no hearing was conducted. Without resolving whether AEDPA applied to his petition, the district court relied on the "arguably less stringent" pre-AEDPA law to deny the request for an evidentiary hearing, because Pope had obtained a hearing in state court on "certain of the issues he presented, including ineffectiveness of trial counsel," presumably referring to the state court hearings on the introduction of the Lagle deposition and the use of the Vietnam Syndrome Defense during the guilt phase of the trial.
After various state and federal court filings, and after the Florida Supreme Court denied Pope's third state habeas corpus petition, Pope's federal petition for writ of habeas corpus now consisted of eight claims (comprised of 23 sub-claims), including ineffective assistance of counsel at the guilt and penalty phases of the trial. In September 2006, the State filed a second supplemental response to Pope's amended petition, and, this time, among other things, "withdr[ew] its suggestion that [AEDPA] applies."
As for Pope's penalty-phase ineffective assistance claims, however, the district court concluded that counsel's failure to discover and present any of the ample available mitigation evidence fell below any objective standard of reasonable representation. It reached this conclusion even though Pope had told the trial court and his counsel that he did not want to present any mitigating evidence to the jury, likening Pope's case to Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991). The district court further determined that counsel's failure to object to the prosecutor's comment about Pope's stated preference for death over life imprisonment also fell below any objective standard of reasonableness. Given the combination of factors surrounding sentencing (including counsel's failure to present mitigating evidence, counsel's failure to object to the prosecutor's statement that Pope preferred to die, and three of the jurors' votes for a life sentence), the court concluded that there was a reasonable probability that but for counsel's errors Pope's jury would have returned a recommendation of life imprisonment.
The State moved to alter or amend the judgment, arguing this time, among other things, that AEDPA should apply to Pope's petition. In ruling on the motion, the district court declined to determine whether the State had waived its AEDPA argument, because, it concluded, the result would remain the same regardless of whether pre-AEDPA or post-AEDPA standards applied. This timely appeal followed.
First, we turn to the standard of review. Which standard of review we apply depends, at least initially, on whether AEDPA governs Pope's habeas petition, which in turn depends on when Pope's petition is said to have been filed. This is because AEDPA only applies to federal habeas petitions filed after April 24, 1996. See Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998) (per curiam). As we have detailed, Pope's original habeas petition was filed in 1991, but the petition the district court ultimately ruled on was filed in 1999, because Pope's original application had been dismissed without prejudice to allow for the exhaustion of certain claims in state court. Over the years, the State's arguments concerning whether AEDPA applies to Pope's petition have been inconsistent at best. Thus, in response to Pope's 1999 amended petition, the State argued for the application of AEDPA, but it withdrew that argument in 2006. After the district court ultimately ruled on Pope's petition in 2008, however, the State revived the issue in a motion to alter or amend the judgment, and in its appeal to this Court, the State continues to maintain that AEDPA applies.
Even if the State has waived the argument that AEDPA applies to Pope's petition (and we observe that the district court made no such finding), we would nonetheless feel constrained to address it now. We have said that "a circuit court of appeals has the power—even in the habeas corpus context—to consider sua sponte issues
In this appeal, we address the AEDPA question—even if the State did not properly raise it—because plainly, it is an important federal issue, raises a threshold question crucial to our analysis, and most importantly, yields a clear answer.
As we've explained, Pope's 1991 federal habeas petition was dismissed without prejudice on non-exhaustion grounds in 1994, and the case was then officially deemed "closed" by the Clerk of Court. When Pope returned to federal court in 1999, he filed an amended habeas corpus petition, along with a motion to "reopen proceedings." In circumstances almost identical to this one—where a petition filed before April 1996 was dismissed without prejudice for non-exhaustion or on other procedural grounds and the petitioner filed an amended petition after April 1996—at least six other Circuits have concluded that AEDPA applies. See Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th Cir. 2001) ("[AEDPA] applies even when a prisoner's original petition was filed prior to AEDPA's effective date and dismissed without prejudice for failure to exhaust state remedies."); Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir. 2000) (AEDPA governs "a federal habeas corpus petition filed after [its] effective date ... where the petitioner's previous federal petition was filed before the effective date of AEDPA and was dismissed without prejudice for failure to exhaust state remedies."); Sanchez v. Gilmore, 189 F.3d 619, 622-23 (7th Cir. 1999) ("[A] second petition [was] filed in 1997, and that is the year which controls whether AEDPA applies. It applies; he cannot move the date to pre-AEDPA times by relying on his old unexhausted petition."); Taylor v. Lee, 186 F.3d 557, 560 (4th Cir. 1999) ("Since [Taylor] filed his second petition ... well after the signing of the AEDPA ..., the AEDPA applies in this case."); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir. 1999) ("[T]he AEDPA applies to a habeas petition filed after the AEDPA's effective date, regardless of when the petitioner filed his or her initial habeas petition and regardless of the grounds for dismissal of such earlier petition.").
This result is consistent with our prior precedent in the non-AEDPA context, which has noted that "[w]here the trial court allows the plaintiff to dismiss his action without prejudice, .... the plaintiff has acquired that which he sought, the dismissal of his action and the right to bring a later suit on the same cause of action, without adjudication of the merits. The effect of this type of dismissal is to
In reaching this conclusion, we are unpersuaded by Pope's argument that AEDPA should not apply because, just like in Roper v. Weaver, 550 U.S. 598, 127 S.Ct. 2022, 167 L.Ed.2d 966 (2007) (per curiam), actions of the district court and the State contributed to the filing of Pope's amended petition after AEDPA's effective date. Not only does the record fail to show that Pope would have filed his amended petition before AEDPA's 1996 enactment had the district court and the State acted more quickly, but also, this case is not akin to Roper, where the district court erroneously dismissed a petition for non-exhaustion. Here, there was no similar error.
In short, we conclude that Pope filed his operative federal habeas petition after April 24, 1996, and, therefore, that Section 2254(d) of AEDPA governs this proceeding. See Wilcox, 158 F.3d at 1210. Thus, a federal court may grant Pope habeas relief only if the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or was (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established law if the court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court confronted facts that are "materially indistinguishable"
We review de novo whether a district court properly ruled on a procedural bar question. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004). Finally, we review for abuse of discretion a district court's decision to deny an evidentiary hearing. Hall v. Head, 310 F.3d 683, 690 (11th Cir. 2002).
Pope's penalty-phase ineffectiveness argument has two components. First, the petitioner has argued that his trial counsel was ineffective because of counsel's alleged failure to conduct a reasonable investigation into Pope's life in order to find mitigating evidence to present during the penalty phase. Pope also claims that his counsel's "failure to object to prosecutorial misconduct an[d] improper argument" rendered the penalty-phase proceedings fundamentally unfair, resulting in the ineffective assistance of counsel.
It is by now axiomatic that to succeed on a claim of ineffective assistance, Pope must show both deficient performance and prejudice: that is, he must show (1) that "counsel's representation fell below an objective standard of reasonableness," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052; accord Wiggins v. Smith, 539 U.S. 510, 521, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Terry Williams, 529 U.S. at 390-91, 120 S.Ct. 1495; Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Because a petitioner's failure to establish either deficient performance or prejudice is fatal to a Strickland claim, we need not address both Strickland prongs if the petitioner fails to satisfy either one of them. See Windom v. Sec'y, Dep't of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (per curiam).
Federal habeas review of a petitioner's claim is typically precluded when the petitioner procedurally defaulted on or failed to exhaust the claim in state court. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). Procedural bar occurs when a petitioner's failure to comply with state procedures provides an "independent and adequate" basis for the state court's decision. A failure to exhaust occurs, in turn, when a petitioner has not "fairly present[ed]" every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review. Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam) (quotation omitted).
A. Procedural Bar
To begin, the State claims that we should reject Pope's failure-to-mitigate and failure-to-object claims outright because the state courts found them to be procedurally barred under Florida law. We are unpersuaded.
In determining how the state courts treated Pope's claims, we look to
But even assuming that the state court rejected Pope's claims on facial insufficiency grounds, that does not mean that the state court found Pope's claims to be procedurally barred. We have recently held that an Alabama state court's summary dismissal of a petitioner's post-conviction claims—for failure to plead facts with sufficient specificity—did not apply a procedural bar to dismiss the claims, which were therefore subject to AEDPA review. Borden v. Allen, 646 F.3d 785, 810-13 (11th Cir. 2011). In so doing, we noted that "[t]he dismissal of a claim pursuant to
The State also presses us to reject Pope's failure-to-mitigate claim as unexhausted because he impermissibly expanded this claim when he raised it on federal habeas review. Once again, we are unpersuaded.
The exhaustion requirement is satisfied when a habeas petitioner presents the federal claim to the appropriate state court, thereby "afford[ing] the state courts a meaningful opportunity to consider [the] allegations of legal error." Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). The Supreme Court has instructed us that if "the substance of a federal habeas corpus claim [was] first ... presented to the state courts," "despite variations in the ... factual allegations urged in its support," the claim is exhausted. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
Based on Supreme Court law, we have held that "courts should exercise flexibility in determining whether defendants have met [the exhaustion] requirement." Cummings v. Dugger, 862 F.2d 1504, 1507 (11th Cir. 1989); see also Henry v. Dep't of Corr., 197 F.3d 1361, 1367 (11th Cir. 1999) ("The exact presentation of the claims in the state and federal courts may vary some."). In other words, an issue is exhausted if "the reasonable reader would understand [the] claim's particular legal basis and specific factual foundation" to be the same as it was presented in state court. Kelley, 377 F.3d at 1344-45. We have said in the ineffectiveness context:
Ogle v. Johnson, 488 F.3d 1364, 1369 (11th Cir. 2007) (emphasis added).
Here, the failure-to-mitigate-at-sentencing claim as pled in Pope's federal habeas petition raised the exact same legal issue that was presented to the state court—that but for the complete absence of any investigation and presentation of mitigation evidence, there is a reasonable probability that the result of Pope's sentencing proceeding would have been different. Specifically, Pope argued on December 30, 1986 in his Rule 3.850 motion for post-conviction relief that trial counsel "failed to present any evidence of mitigating circumstances during the penalty phase of defendant's trial other than the standard plea of mercy from the defendant's mother," and "did little or nothing to develop evidence of such mitigating factors such as defendant's psychological history, performance in the military, or his capacity for rehabilitation." In his federal petition, Pope's allegations center around his abused and impoverished childhood, his positive personality traits, his mental health issues, and his honorable military service in a combat zone. While his federal petition certainly expanded on the topics raised earlier in state court, we cannot ignore that they involve the same issues raised there—his psychological history, his performance in the military, and his capacity for rehabilitation—in the context of an ineffective assistance of counsel claim. The federal question was thus "plainly defined," Kelley, 377 F.3d at 1345, so that the state courts and the State were made fully aware of Pope's ineffectiveness claim, "despite variations in the ... factual allegations urged in its support," Picard, 404 U.S. at 277, 92 S.Ct. 509.
Having concluded that Pope's penalty-phase claims are properly before us, we turn to the merits. The procedural history surrounding these claims is tortured. As we explain below, although Pope consistently sought an evidentiary hearing in state court to develop his penalty-phase claims, no hearing was ever held. Even the federal district court denied his request for an evidentiary hearing to develop these claims, albeit under pre-AEDPA law, on the ground that Pope had already participated in two state-court hearings. But these hearings barely touched on his counsel's performance during the penalty phase.
AEDPA prohibits the district court from holding an evidentiary hearing "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings" unless certain circumstances are shown. 28 U.S.C. § 2254(e)(2).
Diligence "for purposes of the opening clause [of § 2254(e)(2)] depends upon whether the prisoner made a reasonable attempt, in light of information available
In general, our precedent says that when a petitioner requested an evidentiary hearing at every appropriate stage in state court and was denied a hearing on the claim entirely, the petitioner has satisfied the diligence requirement for purposes of avoiding Section 2254(e)(2). See Valle v. Sec'y for Dep't of Corr., 459 F.3d 1206, 1216 (11th Cir. 2006) (diligence requirement satisfied where petitioner "attempted to secure an evidentiary hearing in the state courts" on his equal protection and due process claims); Breedlove, 279 F.3d at 960 (diligence requirement satisfied where petitioner "sought an evidentiary hearing on [the relevant claim] at every stage of his state proceedings" yet "[t]he state courts denied him the opportunity to present evidence related to [the] claim"). By contrast, where a petitioner was granted an evidentiary hearing or other means of presenting evidence to the state court on the particular claim, and the petitioner failed to take full advantage of that hearing, despite being on notice of and having access to the potential evidence and having sufficient time to prepare for the hearing, that petitioner did not exercise diligence in developing the factual foundation of his claim in state court.
Here, Pope exercised diligence in attempting to develop the factual basis of his penalty-phase claims before the state court. As the record amply shows, Pope requested an evidentiary hearing on these claims at every appropriate stage of the state court collateral proceeding. First, in the state trial court, Pope raised his ineffectiveness
The Florida Supreme Court has further explained:
Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989) (per curiam). However, "[t]he strong language of the criminal rule that the motion or record must `conclusively show that the prisoner is entitled to no relief' mandates that the trial court avoid summarily denying relief without a hearing" so long as the motion "presents a colorable claim for relief." Thames v. State, 454 So.2d 1061, 1065 (Fla.Dist.Ct. App. 1984) (per curiam) (quoting Fla. R.Crim. P. 3.850(d)); see also Gaskin v. State, 737 So.2d 509, 516 & n. 17 (Fla. 1999) ("[A]n evidentiary hearing is presumed necessary absent a conclusive demonstration that the defendant is entitled to no relief .... [W]e strongly urge trial courts to err on the side of granting evidentiary hearings in cases involving initial claims for ineffective assistance of counsel in capital cases."), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla. 2004).
As for the deficient performance prong of Pope's penalty-phase Strickland claims, Pope's Rule 3.850 motion argued that "Eber failed to present any evidence of mitigating circumstances during the penalty phase of defendant's trial other than the standard plea of mercy from the defendant's mother," and that "Eber did little or nothing to develop evidence of such mitigating factors such as defendant's psychological history, performance in the military, or his capacity for rehabilitation." (Emphases added). Petitioner's motion also alleged that the prosecutor "made prejudicial and improper comments"—including telling the jury that Pope "had expressed a preference for the death penalty—even though that preference had been voiced outside the presence of the jury and was wholly irrelevant to any issue before them," but "Eber improperly chose not to voice any objection." As for prejudice, Pope alleged that Eber's "failure to present any other mitigating circumstances increased the likelihood that the jury would return an advisory sentence of death .... But for this failure of proof, there is a reasonable probability that the jury would have recommended life for the killing of Walters." And, Pope said, "[t]he failure of Eber to object to these ... prosecutorial comments ... prejudiced defendant and deprived him of the fair and impartial trial guaranteed him by the Federal and State Constitutions."
While these allegations are surely brief, they are more than merely conclusory, see Kennedy, 547 So.2d at 913, and they sufficiently made Pope's case for an evidentiary hearing. Indeed, given Pope's allegations that trial counsel failed to proffer any mitigating evidence at the penalty phase, aside from testimony from Pope's mother, or to make any objection to the
What's more, the state trial court never held that Pope's penalty-phase claims failed to meet the evidentiary hearing requirements of Rule 3.850. Rather, its ruling suggests otherwise. In order for a court to deny claims because they were "conclusively" refuted by the record, the Florida rule directs the court to attach to its order "a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief." Fla. R.Crim. P. 3.850(d). Florida courts have found that the propriety of such a denial can only be determined by reference to those record excerpts that were actually attached. See Muniz v. State, 18 So.3d 1140, 1141-42 (Fla.Dist.Ct.App.2009) (per curiam); Thames, 454 So.2d at 1065-66. Since Pope's trial court attached no record excerpts—much less any that "positively refuted" the claim, Connor v. State, 979 So.2d 852, 868 (Fla.2007) (per curiam)—we cannot conclude that the state trial court denied Pope Rule 3.850 relief on this basis.
Moreover, to the extent it could be argued that the state trial court denied Pope's claim because it was facially insufficient, the court's very order undermines this possibility. "A determination of facial sufficiency ... rest[s] [only] upon an examination of the face ... of the post-conviction motion .... [T]he evidence in the record will ordinarily be irrelevant to such an evaluation." Spera, 971 So.2d at 758 (emphasis omitted) (quotation omitted). Yet, the state court, in denying Pope's claims, relied on "the abundant evidence against the Defendant, together with the remainder of the transcript which reflects a very effective defense on behalf of the Defendant." Undeniably, this ruling went beyond the face of Pope's motion.
Pope again raised his ineffectiveness arguments on appeal to the Florida Supreme Court and again requested an evidentiary hearing on his claims, but he was denied a hearing once more. Pope, 569 So.2d at 1245. Like the state trial court, the Florida Supreme Court neither attached record excerpts nor constrained its analysis to the face of Pope's motion. Instead, the court explained that it had "reviewed the motions, files, and records in this case and agree[d] with the trial court that they conclusively demonstrate that Pope is entitled to no relief in connection with the above claims." Id.
Based on thorough review of the record, as well as the state courts' treatment of Pope's claims, we cannot fairly say that Pope did not properly pursue an evidentiary hearing at each stage of his state court proceedings. In the face of his repeated efforts to obtain an evidentiary hearing, we conclude that Pope exercised diligence in attempting to develop the factual basis of his claims in the state courts. See Valle, 459 F.3d at 1216; Breedlove, 279 F.3d at 960.
B. The Substance of Pope's Allegations
Once a petitioner has established diligence, a federal court may grant an evidentiary hearing without regard to the strictures of 28 U.S.C. § 2254(e)(2), but only if the petitioner has "proffer[ed] evidence that, if true, would entitle him to relief." Hill v. Moore, 175 F.3d 915, 922 (11th Cir.1999); accord Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) ("In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.").
In the federal district court, Pope has proffered the following substantial body of evidence that he would develop if
Moreover, in many of the cases where counsel's decision to forego investigating or presenting mitigating evidence based on a competent client's clear instruction has been considered effective assistance, there was ample testimony regarding counsel's strategic decision not to present mitigating evidence, and counsel had explained the mitigating evidence to the defendant. See, e.g., Reed v. Sec'y, Fla. Dep't of Corr., 593 F.3d 1217, 1240 (11th Cir.2010); Cummings, 588 F.3d at 1361; Newland v. Hall, 527 F.3d 1162, 1209 (11th Cir.2008).
Here, the record is wholly undeveloped concerning Eber's perceptions of Pope's mental health, what instructions, if any, Pope may have given Eber about investigating mitigating evidence, and how an investigation may have changed Pope's views on mitigating evidence, as well as what strategy, if any, Eber had for Pope's mitigation investigation or presentation. Without this record, we are left with Pope's express allegations that Eber utterly failed to investigate or prepare for the penalty phase of the trial, never interviewed readily available witnesses who had been present during the trial, and specifically admitted that he recalled doing no mitigation investigation. Eber failed to do so, says Pope, even though Eber was aware of at least some of Pope's mental health issues, including PTSD.
Significantly, Pope also alleges that Eber improperly failed to object to the following statement made by the prosecutor in closing arguments to the jury
As for prejudice, Pope has alleged that because trial counsel failed to object to the prosecutor's comment to the jury that Pope preferred the death penalty, it was manifestly easier for the jury to recommend death. In addition, he has alleged that due to trial counsel's failure to conduct any penalty-phase investigation, the jury was not made aware that Pope suffered an abusive and impoverished childhood; exhibited many positive personality traits; began experimenting with drugs as a result of his Vietnam experience; escalated his drug use after he returned home; continued to suffer from the consequences of the war; and exhibited substantial mental health issues, including post-traumatic stress disorder, organic delusional disorder, substance abuse disorder, and bipolar disorder. In particular, Pope claims that Eber failed to explain to the jury how Pope's Vietnam experiences affected his drug use, his psychological state, and the actions Pope allegedly took during the weekend of the murders. The jury also did not hear about the peculiarities of Pope's mental state, and how because of Pope's pre-Vietnam childhood and mental disorders, Pope was more dramatically affected by these things than the average Vietnam veteran would have been. This is significant, since our courts have placed great importance on the impact of military service as mitigation—recognizing not only that "[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines," but also that the relevance of "extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [the defendant]." Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 455, 175 L.Ed.2d 398 (2009).
Nor did the jury hear that, according to Pope's experts, his behavior at the time of the murders satisfied two statutory mitigating circumstances—(1) extreme emotional or mental disturbance, see Fla. Stat. § 921.141(6)(b); and (2) diminished capacity to conform his conduct to the requirements of the law, see id. § 921.141(6)(f)—
We agree with Pope that these allegations, considered together, are powerful, and if he is able to prove they are true, he would be entitled to habeas relief. See Hill, 175 F.3d at 922. However, we do not know the veracity of his claims because Pope has never been afforded an opportunity to develop their factual basis in the crucible of an evidentiary hearing—nor, just as importantly, has the State had the opportunity to challenge them in an adversarial hearing. As a result, the district court's denial of an evidentiary hearing amounted to an abuse of discretion, especially since the district court ultimately granted habeas relief based on the wholly untested allegations Pope sought to develop in the hearing.
Pope also claims that he was denied the effective assistance of counsel during the guilt phase because his counsel, Eber: (1) failed to properly investigate and prepare for Pope's case; (2) unreasonably failed to object to various things throughout the trial, including the introduction of guns unrelated to the three murders and the admission of Buddy Lagle's videotaped deposition; (3) failed to effectively cross-examine Eckard; (4) failed to interview and properly prepare defense witnesses, including Pope himself; and (5) failed to present certain evidence of Pope's innocence.
After our thorough review of the entire record, we conclude that the Florida Supreme Court's decisions rejecting these claims were neither contrary to nor an unreasonable application of Supreme Court law. Moreover, because his allegations fall far short of satisfying AEDPA, and because the state court did in fact grant him two different evidentiary hearings addressing defense counsel's performance at the guilt phase, Pope has failed to show that he is entitled to an evidentiary hearing to explore further any of these guilt-phase claims. In reaching this conclusion, we apply AEDPA deference to the state court's decisions since, as we have repeatedly held, AEDPA deference is due even if the state court decision was summary in nature. See Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 776 (11th Cir.2003); accord Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011).
At the outset, however, we address the State's repeated argument that Pope did not exhaust these claims in state court. As we've discussed earlier, the Supreme Court has instructed us that if "the substance of a federal habeas corpus claim [was] first ... presented to the state courts," then the claim is exhausted, "despite variations in the ... factual allegations urged in its support." Picard, 404 U.S. at 277-78, 92 S.Ct. 509. Thus, "courts should exercise flexibility in determining whether defendants have met [the exhaustion] requirement." Cummings, 862 F.2d at 1507; see also Henry, 197 F.3d at 1367 ("The exact presentation of the claims in the state and federal courts may vary some.").
As we see it, Pope has exhausted his guilt-phase ineffectiveness claims in state court. While not every piece of factual support alleged in federal court was alleged in state court, Pope made very similar allegations before the state and
Turning to the merits, we observe again that the majority of Pope's guilt-phase claims were rejected summarily by the Florida Supreme Court; however, the Florida Supreme Court expressly addressed Pope's claim that Eber unreasonably failed to object to the admission of the Lagle deposition in lieu of a trial appearance. In rejecting Pope's challenge on direct appeal, the Florida Supreme Court concluded that the State had met its burden of proving Lagle's unavailability so that his deposition could be read at trial, and pointed to a statement from Eber that he did not doubt Lagle's unavailability. See Pope, 441 So.2d at 1076. Pope raised the issue again through the ineffective assistance claim in his Rule 3.850 motion, and the Florida Supreme Court again denied relief, finding that Lagle was in fact unavailable, and that Eber could not be "ineffective for stipulating to a proven fact: the unavailability of the witness." Pope, 569 So.2d at 1245-46. On federal habeas review, the district court observed that Eber had researched the issues surrounding Lagle's testimony, and it concluded that the Florida Supreme Court's resolution of this claim was not contrary to or an unreasonable application of Strickland.
The district court further concluded that Pope's remaining guilt-phase claims also failed to meet this standard. In rejecting the claim that Eber failed to prepare for the case, the district court noted that Eber had interviewed witnesses, taken or read witness depositions, and believed that he was ready for trial. As for the claim that Eber failed to properly cross-examine state witnesses, the district court reiterated that Eber had prepared for trial, and noted the ample discretion afforded to counsel in deciding how to cross-examine witnesses. As for the claim that Eber failed to prepare defense witnesses, the district court specifically observed that Eber had met with and prepared Pope for trial. As for the claim that Eber failed to present certain evidence of Pope's innocence, the district court concluded that even though Eber could not recall his strategy regarding alternate theories of the defense, the claim failed because there was no reasonable probability that the additional evidence would have affected the outcome of Pope's case. Finally, as for Pope's cumulative error claim, the district court said that "[f]or the reasons previously articulated in this Order, the Court has determined that the [guilt]
We agree with the comprehensive opinion of the district court, and reject Pope's guilt-phase claims. All in all, Pope essentially complains that Eber failed to investigate, present evidence, and cross-examine the State's star witness Eckard about various issues that Eber actually did introduce at trial and did use to contradict Eckard's testimony. Pope also says that Eber did not properly object to the introduction of evidence of Pope's other guns or of Lagle's deposition (even though Eber used the evidence that Pope owned other guns affirmatively in his defense, and even though Lagle was later found to be in fact unavailable), and that Eber did not properly prepare Pope and other defense witnesses for their testimony (although Pope fails to say what might have been accomplished by additional preparation). In short, Pope has failed to show that the state court's rejection of his guilt-phase ineffectiveness claims was contrary to or an unreasonable application of Strickland.
As for cumulative error, we have declined to consider this kind of claim where a petitioner's "state-court trial was not fundamentally unfair." Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997). Because Pope has not shown that the guilt phase of his trial was fundamentally unfair, we need not consider his cumulative-error claim. But even if we were to consider Pope's guilt-phase claims in concert, there is no constitutional error, much less prejudicial error.
Indeed, as the record shows, the trial evidence of Pope's guilt was strong. All three victims had been shot with exploding ammunition, rendering a ballistics comparison impossible. However, parts of an AR-7 rifle were found in the canal near Walters's body, and the spent shell casing under Di Russo's body had been fired from an AR-7 weapon. Ultimately the police were able to show that Doranz had purchased an AR-7 rifle for Pope shortly before the murder. Pope admitted being with Doranz the evening Doranz was killed. And Lagle told police he had made a silencer for an AR-7 rifle at Pope's request.
In addition, Eckard's testimony directly implicated Pope in the murders. She said that Pope had arranged a drug deal with Doranz and Di Russo, and that on the day of the Doranz and Di Russo murders, Pope and Doranz had convinced Walters to go with Eckard to the apartment where Pope had been staying. Eckard testified that later the same night, Pope arrived at the apartment and told the women that there had been trouble and that Doranz had been injured, but that it was best for Walters to stay away from Doranz for a while. Eckard said she knew that Di Russo and Doranz were dead, and that she had known Pope intended to kill them at that point. According to Eckard, Walters then checked into a nearby motel, where Pope supplied her with quaaludes and cocaine. On Sunday, Pope told Walters he would take her to see Doranz. Eckard testified that Pope had told her that he knew he had to get rid of Walters but that he regretted it because he had become fond of her. Eckard said that when Pope returned, he described Walters's murder and how the gun had broken. Eckard also said that she had gone with Pope to the scene of the crime the next day to collect fragments of the broken stock and to look for the missing trigger assembly and receiver.
In light of the powerful showing of guilt, and the fact that the jury chose to believe Eckard's testimony (and not Pope's)— even though Eckard was impeached and
Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), also dealt with a different issue—that a habeas petition filed "after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a `second or successive' petition as that term is understood in the habeas corpus context." In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997) (per curiam), also dealt with the second or successive issue. And in Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), a timeliness case, AEDPA's applicability was undisputed.
Jacobs v. State, 880 So.2d 548, 551 (Fla. 2004) (per curiam).
Because the trial court did not specify which claims it found to be deficient or which ones it found to be refuted by the record, and because the State's brief to the trial court argued both grounds for denying these claims, we cannot determine which ruling applied to which claims. Rather, the trial court expounded—however briefly—on the fact that the record refuted both prongs of Strickland, lending support to the view that it was actually rejecting all of Pope's claims in light of the record.
28 U.S.C. § 2254(e)(2).