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. A
petitioner bears the burden of proving, “by a preponderance of competent
evidence, that counsel’s performance was unreasonable.” Chandler v. United
States,

218 F.3d 1305

, 1313 (11th Cir. 2000) (en banc); accord Harrington v.
Richter, 562 U.S. ,

131 S. Ct. 770

, 790 (2011) (“Strickland . . . calls for an
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inquiry into the objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind.”).
In answering this question, even pre-AEDPA, we are mindful that “[t]rial
counsel’s performance is entitled to ‘highly deferential’ judicial scrutiny.” Turner,

339 F.3d at 1275

 (internal quotation marks omitted); see also Bolender v.
Singletary,

16 F.3d 1547

, 1557 (11th Cir. 1994) (“It is important to note that
judicial scrutiny of an attorney’s performance is appropriately highly deferential . .
. .”). We therefore, “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Turner,

339 F.3d at 1275

 (internal quotation marks omitted). “For a petitioner to show that the
conduct was unreasonable, a petitioner must establish that no competent counsel
would have taken the action that his counsel did take.” Chandler,

218 F.3d at 1315

.
Under the professional standards in place in 1983 and 1984, when trial
counsel represented Puiatti, a defense attorney in a capital case had a duty “to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary,” and to present at sentencing mitigating
evidence uncovered during that investigation. Strickland,

466 U.S. at 691

; see also Williams v. Taylor,

529 U.S. 362

, 395–98,

120 S. Ct. 1495

,
1514–15 (2000) (counsel’s performance was deficient because counsel “did not
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fulfill their obligation to conduct a thorough investigation of the defendant’s
background”); Cooper v. Sec’y, Dep’t of Corr.,

646 F.3d 1328

, 1351–52 (11th Cir.
2011) (observing that counsel had an obligation to conduct “an adequate
background investigation”); Johnson, 643 F.3d at 931 (“The Supreme Court has
held that based on standards applicable in 1980 . . . an attorney representing a
capital defendant has an obligation to conduct a thorough investigation of the
defendant’s background.”). An attorney’s strategic choices “made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland,

466 U.S. at

690–91,

. However,
“strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation.”

.
“In assessing the reasonableness of an attorney’s investigation, . . . a court
must consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate
further.” Wiggins v. Smith,

539 U.S. 510

, 527,

123 S. Ct. 2527

, 2538 (2003). Of
course, “a complete failure to investigate may constitute deficient performance of
counsel.” Parker v. Sec’y for Dep’t of Corr.,

331 F.3d 764

, 787 (11th Cir. 2003);
see also Housel v. Head,

238 F.3d 1289

, 1294 (11th Cir. 2001) (explaining that “a
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failure to investigate can be deficient performance in a capital case when counsel
totally fails to inquire into the defendant’s past or present behavior or life history”).
That said, “no absolute duty exists to investigate particular facts or a certain
line of defense.” Chandler,

218 F.3d at 1318

. Instead, a court’s assessment of an
attorney’s investigation hinges on whether that investigation—or the decision to
limit it—was reasonable. Strickland,

466 U.S. at 691

. Finally,
“[a] decision to limit investigation is ‘accorded a strong presumption of
reasonableness,’” Mills v. Singletary,

63 F.3d 999

, 1021 (11th Cir. 1995) (internal
quotation marks omitted), and “to be effective a lawyer is not required to ‘pursue
every path until it bears fruit or until all hope withers.’” Williams v. Head,

185 F.3d 1223

, 1237 (11th Cir. 1999) (quoting Foster v. Dugger,

823 F.2d 402

, 405
(11th Cir. 1987)).
Although we must assess a decision not to investigate “for reasonableness in
all of the circumstances,” when doing so we apply “a heavy measure of deference
to counsel’s judgments.” Strickland,

466 U.S. at

690–91,

. We
keep in mind that a defense attorney “preparing for the sentencing phase of a
capital trial,” is not required “to scour the globe on the off chance something will
turn up.” Rompilla v. Beard,

545 U.S. 374

, 383,

125 S. Ct. 2456

, 2463 (2005).
Rather, “reasonably diligent counsel may draw a line when they have good reason
to think that further investigation would be a waste.”

125 S. Ct. at 2463

.
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C. Performance of Puiatti’s Trial Counsel
After considerable review of the record and under the particular
circumstances of this case, we conclude that the district court properly concluded
that trial counsel conducted a reasonable investigation of Puiatti’s background and
developed a penalty phase mitigation strategy supported by the evidence her
investigation produced. Although that strategy did not yield the outcome that
counsel and her client desired, it was nevertheless a reasonable one to pursue and
her performance was not ineffective.
During her investigation, trial counsel, among other tasks: (1) met with
Puiatti several times and explained to him the nature of mitigating evidence and the
importance of developing a comprehensive picture of his background; (2) directed
Puiatti to write a history of his life; (3) interviewed Mr. and Mrs. Puiatti on
multiple occasions, advised them about the nature of aggravating and mitigating
circumstances, and even visited the Puiatti family home; (4) interviewed sister
Wright and advised Wright about the importance of gathering all information
possible about Puiatti’s background; (5) interviewed Puiatti’s former wife; and (6)
spoke on the telephone with Puiatti’s uncle, Joseph Puiatti.
In addition to meeting with Puiatti’s family members, trial counsel solicited
and received numerous records of Puiatti’s life, including school, hospital,
military, and jail records. Counsel also sent a letter to Puiatti’s high school
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guidance counselor, seeking to identify individuals in New York who may have
known Puiatti when he was a child and had relevant background information about
Puiatti’s childhood. In seeking records, trial counsel was “just trying to get all the
records [she] could think of that might document independently [Puiatti’s]
situation and his life and see what they might reveal.”
Trial counsel not only personally completed these investigative tasks but
also hired an investigator to help her. She also hired two mental health experts and
instructed at least one of them to conduct his own independent investigation of
Puiatti’s background, which that expert did by interviewing Puiatti and his parents
too.
In short, trial counsel’s investigation was comprehensive and thorough. We
have previously determined that an attorney performed a reasonable investigation
of his client’s background after the attorney performed only some of the actions
that Garrett performed. See, e.g., DeYoung v. Schofield,

609 F.3d 1260

, 1285
(11th Cir. 2010) (attorneys interviewed members of petitioner’s family and an
investigator subpoenaed petitioner’s school and work records); Housel,

238 F.3d at 1295

 (attorney instructed petitioner to “prepare a life history to help with the
investigation” and contacted petitioner’s family members).
After completing her investigation, trial counsel decided to present a
mitigation strategy that centered on Puiatti’s having come from a good family who
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stood willing to assist him in his rehabilitation, as well as Puiatti’s history of drug
abuse, the major traumas and disappointments he had endured, his brain damage,
and the fact that he was not prone to violence. Because trial counsel made this
decision after a thorough investigation of Puiatti’s background, we consider her
decision “virtually unchallengeable.” Strickland,

466 U.S. at

690–91,

.
Trial counsel’s chosen mitigation strategy was also a reasonable one given
the evidence, recounted above, that she did uncover. During the penalty phase
hearing, Mrs. Puiatti testified about how much she and her husband cared for
Puiatti. Specifically, she talked about how they had obtained counseling for their
son when he started to abuse drugs, allowed Puiatti to live with them as an adult
after he suffered repeated setbacks, and sought to obtain help for Puiatti when his
drug problems did not abate during adulthood. Furthermore, Dr. Meadows
independently confirmed that Puiatti came from a good family that “imbued [him]
with a rather strong moral code.”
Indeed, trial counsel reasonably chose her mitigation strategy based
primarily on the information that she received from Puiatti, his family members,
and two mental health experts. Puiatti told counsel he came from a good family
and he never wanted for anything. Puiatti told the sentencing judge he came from
a “good and crime-free” family. In all of the interviews defense counsel conducted
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of Puiatti and his family members, no one ever disclosed the pattern of systemic
child abuse endured by Puiatti, which came to light only years after Puiatti was
sentenced.
We have repeatedly held that “[a]n attorney does not render ineffective
assistance by failing to discover and develop childhood abuse that his client does
not mention to him.” Williams, 185 F.3d at 1237; see also DeYoung,

609 F.3d at

1287–88 (holding that counsel’s investigation was reasonable in light of the fact
that there was “no evidence that DeYoung mentioned to his trial or appellate
counsel or to any mental health experts (before trial or even afterward) . . . that
there was significant internal strife or dysfunction in his family”); Newland v. Hall,

527 F.3d 1162

, 1202 (11th Cir. 2008) (noting that “[b]ecause information about
childhood abuse supplied by a defendant is extremely important in determining
reasonable performance, ‘[w]hen a petitioner . . . does not mention a history of
physical abuse, a lawyer is not ineffective for failing to discover or to offer
evidence of abuse as mitigation’” (alterations in original) (additional internal
quotation marks omitted)); Stewart v. Sec’y , Dep’t of Corrs.,

476 F.3d 1193

,
1210–11 (11th Cir. 2007) (“The Constitution imposes no burden on counsel to
scour a defendant’s background for potential abuse given the defendant’s contrary
representations or failure to mention the abuse.”). A lawyer is also not ineffective
when the “family members petitioner directs his lawyer to talk to . . . do not
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mention a history of physical abuse.” Van Poyck. v. Fla. Dep’t of Corr.,

290 F.3d 1318

, 1325 (11th Cir. 2002).
Although Puiatti relies on Williams v. Taylor,

529 U.S. 362

120 S. Ct. 1495

(2000), that decision is wholly different. The record showed “that Williams’
parents had been imprisoned for the criminal neglect of Williams and his siblings,
that Williams had been severely and repeatedly beaten by his father, that he had
been committed to the custody of the social services bureau for two years during
his parents’ incarceration . . . , and then, after his parents were released from
prison, had been returned to his parents’ custody.”

Id. at 395

(footnote omitted). In Williams, “counsel did not begin to prepare for [the penalty
phase] of the proceeding until a week before the trial.”

Id. at 395

. During their preparation, Williams’s attorneys did not merely conduct an
inadequate background investigation, “[t]hey failed to conduct an investigation” at
all.

. Nevertheless, evidence of Williams’s “nightmarish
childhood” was readily available in state records, which counsel erroneously
believed they could not access.

.
Unlike the attorneys in Williams, the record here shows that: (1) Puiatti’s
attorney began preparing for the penalty phase well in advance of the trial; (2)
counsel conducted a thorough investigation of Puiatti’s background; (3) the
evidence of Puiatti’s childhood abuse was not readily attainable in state records;
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(4) Puiatti told his counsel he came from a loving and supportive family; and (5) in
fact, the child abuse was concealed from Puiatti’s attorney by both Puiatti and his
family members. If anything, the differences between this case and Williams
support the district court’s denial of Puiatti’s ineffective counsel claim here.
The decision in Wiggins v. Smith is also instructive. There, trial counsel
stopped their investigation of Wiggins’s background upon receiving: (1) a one-
page presentence investigation report (“PSI”) that noted Wiggins’s “misery as a
youth”; and (2) Department of Social Services (“DSS”) records of Wiggins’s
various placements in foster care. Wiggins,

539 U.S. at

523–24,

123 S. Ct. at 2536

(internal quotation marks omitted). The DSS records actually revealed that
Wiggins’s “mother was a chronic alcoholic; Wiggins was shuttled from foster
home to foster home and displayed some emotional difficulties while there; he had
frequent, lengthy absences from school; and, on at least one occasion, his mother
left him and his siblings alone for days without food.”

Id. at 525

123 S. Ct. at 2537

. Despite having these records, counsel did not discover or present mitigating
evidence regarding severe physical and sexual abuse petitioner suffered at the
hands of his mother and while in the care of a series of foster parents.

Id.

 at 516–
17,

123 S. Ct. at

2532–33. Counsel did not offer expert testimony about Wiggins’s
background and mental composition in light of this abuse.

Id. at 516

123 S. Ct. at 2532

. Given the known information, it was “[c]ounsel’s decision not to expand
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their investigation beyond the PSI and the DSS records [that] fell short of the
professional standards that prevailed [at the time].”

Id. at 524

123 S. Ct. at 2536

.
In comparison here, Puiatti’s attorney did not receive any document that
suggested that Puiatti was abused as a child. To the contrary, Puiatti affirmatively
told trial counsel that his family loved and supported him, and family members
confirmed that this was true. Puiatti’s attorney retained two expert witnesses, both
of whom testified about Puiatti’s loving and supportive family. No expert reported
child abuse. The known evidence here would not have led a reasonable attorney to
investigate further.
Rompilla v. Beard also does not help Puiatti. The attorneys in Rompilla had
easy access to Rompilla’s prior conviction file, a public document stored at the
courthouse where Rompilla was to be tried, which showed that “Rompilla was
reared in the slum environment of Allentown, Pa. vicinity. He early came to the
attention of juvenile authorities, quit school at 16, and started a series of
incarcerations.”

545 U.S. at 384

, 390–91,

125 S. Ct. at 2464, 2468

 (internal
quotation marks and alterations omitted). Rompilla’s attorneys failed to examine
the prior conviction file, despite knowing that the prosecution intended to seek the
death penalty by attempting to establish that “Rompilla had a significant history of
felony convictions indicating the use or threat of violence, an aggravator under
state law.”

Id. at 383

125 S. Ct. at 2464

. The Supreme Court concluded that,
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because Rompilla’s attorneys actually knew that “[t]he prosecution was going to
use the dramatic facts of a prior offense,” they “had a duty to make all reasonable
efforts to learn what they could about the offense.”

Id. at 385

125 S. Ct. at 2465

.
Unlike in Rompilla, Puiatti’s trial attorneys did not fail to obtain documents
that were easily accessible. Notably, nothing in this record suggests that there was
any existing document in 1984 that recounted the child abuse Puiatti suffered,
much less that it was easily accessible at the courthouse. In fact, after interviewing
Puiatti, his family members, and two mental health professionals, trial counsel
went to great lengths to obtain documents relating to Puiatti’s background and
none of them reported any child abuse. If anything, Rompilla shows that Puiatti’s
claim fails.
We recognize that Puiatti relies on Ferrell v. Hall,

640 F.3d 1199

 (11th Cir.
2011), where Ferrell and his family members (his parents and his brother) did not
disclose Ferrell’s abusive upbringing to his trial attorneys.

Id. at 1230

. The pivotal
fact there though was that Ferrell’s attorneys conducted only a “limited character
investigation—which asked, essentially, only whether Ferrell was trustworthy and
had a good reputation.”

Id. at 1231

. And they did not investigate or ask questions
about Ferrell’s childhood background.

Id. at 1230

. Counsel would have
discovered helpful evidence of childhood abuse “had [they] only asked these
witnesses about the defendant’s background and childhood.”

Id.

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Unlike the attorneys in Ferrell, Puiatti’s attorney did not conduct only a
“limited character investigation.” See

id. at 1231

. Rather, Garrett explained to
Puiatti and his family members the nature of mitigating evidence, and stressed to
them the importance of developing a complete picture of Puiatti’s childhood,
background, and family history. Counsel’s shortcoming in Ferrell was their
general failure to ask any questions about Ferrell’s “background and childhood.”

Id. at 1230

. Here, Puiatti’s trial attorney did ask those questions. The facts here—
Puiatti and his family members concealed the child abuse and that Garrett received
misleading answers—do not negate the adequacy of Garrett’s investigation. 12
We also reject Puiatti’s contentions regarding James Thatcher, Wright’s
former husband. Puiatti’s brief alleges that: “Garrett was explicitly told that
Thatcher would have critical information about Puiatti, a fact that Garrett
emphasized in her notes with an asterisk.” The record, however, does not support
this allegation. It is true that Garrett’s notes contained a reference to Wright and
“Jimmy,” which Garrett assumed referred to James Thatcher. And, there was an
asterisk next to the reference to “Angela and Jimmy.” But when Puiatti’s habeas
12
In Cooper v. Secretary, Department of Corrections,

646 F.3d 1328

 (11th Cir. 2011),
counsel interviewed only the petitioner and his mother, who did not disclose the abuse inflicted
by Cooper’s father and brother. Counsel offered no excuse for not speaking with those family
members.

Id. at 1352

. In any event, Cooper’s attorneys, in fact, uncovered the evidence of
Cooper’s childhood abuse from the deposition of a clinical psychologist who evaluated Cooper.

Id. at 1340, 1352

. The attorneys, for strategic reasons, decided not to call the psychologist to
testify.

Id. at 1352

. Unlike in Cooper, Puiatti’s counsel did speak with his siblings, other family
members, and the two mental health experts, and Garrett never learned about child abuse.
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attorney asked Garrett why there was an asterisk, Garrett responded: “I can’t be a
hundred percent sure. Now, when I’m making notes like this I make an asterisk if
it’s something I have to do. It’s my reminder when I look through the notes later
I’ve got to do something about that.” Garrett then added: “So, I don’t know—I
can’t recall now if that was my practice back then or if it was just something to—it
was something to draw attention to that. I was making that asterisk to draw
attention to it in some fashion.” There is nothing in Garrett’s notes or her
testimony about Thatcher having “critical information about Puiatti,” much less
that her asterisk emphasized that. More importantly, Strickland requires that we
make “every effort . . . to eliminate the distorting effects of hindsight . . . and to
evaluate the conduct from counsel’s perspective at the time.”

466 U.S. at 689

104 S. Ct. at 2065

. Counsel had already interviewed Wright, Thatcher’s wife, and
could have reasonably concluded that any information Thatcher could provide
would be derivative of Wright’s (as Puiatti’s sister) first-hand perspective on the
Puiatti family. See Williams, 185 F.3d at 1238 (noting that the § 2254 petitioner’s
trial attorney’s failure to interview Williams’s sister and father did not make her
investigation constitutionally inadequate, regardless of whether it “would have
been better if [the attorney] had . . . interviewed” these individuals). 13
13
Puiatti also criticizes his trial attorney for not contacting Puiatti’s childhood neighbors
in New York, but trial counsel did attempt to locate individuals who knew Puiatti as a child in
New York by sending a letter to Puiatti’s guidance counselor. To the extent that Puiatti wishes
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Puiatti further contends that trial counsel ignored “red flags” of child abuse.
Puiatti’s alleged “red flags” are either not actually suggestive of child abuse, or are
not suggestive absent the beneficial lens of hindsight.
For example, Puiatti claims that Wright’s statement that things were “not as
they seemed” or that her parents painted a “rosy picture” which was “not so,”
should have caused trial counsel to suspect that Mr. and Mrs. Puiatti physically and
verbally abused their children. This argument wholly ignores that Wright actually
provided ample context for what her statement meant, none of which had anything
to do with child abuse. Wright told Puiatti’s attorney that: (1) Mr. Puiatti was a
corrupt and incompetent businessman; (2) Puiatti received very little affection
from his father; (3) Mrs. Puiatti often could not pay her bills and tried to avoid debt
collectors; and (4) when Wright encountered Puiatti after he committed the crimes,
Puiatti showed little remorse. Thus, trial counsel reasonably could have concluded
that Wright had thoroughly explained the reasons for her comment and that
additional follow-up inquiries were unnecessary. 14 And although these statements
suggested that the Puiatti family had its troubles, they would not have caused a
that his trial attorney had done more to track down New York witnesses, counsel “did not have
endless time, energy, or financial resources.” See Williams, 185 F.3d at 1237.
14
Moreover, Wright’s statements at the evidentiary hearing cast doubt as to whether, even
if Puiatti’s attorney had specifically asked about child abuse, Wright would have been
forthcoming with details of Puiatti’s claimed abuse. Wright testified that, during this
conversation, she “was still in fear of [her] parents because they were around so [she] wasn’t
able to say what [she] really wanted to tell them about the abuse that [Puiatti] and [she] had
suffered.”
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reasonable attorney to believe that Puiatti was physically abused by his own
parents, especially given that Puiatti himself said he came from a loving and
supportive family.
Puiatti also argues that the basic fact that he abused substances on a daily
basis beginning at the early age of 13 should have alerted counsel that Puiatti was
abused by his parents, but, as the district court observed “[t]here are innumerable
reasons why certain individuals develop addictions to drugs.” Although Puiatti’s
experts, Drs. Olander and Greenberg testified that there was likely a link between
Puiatti’s drug abuse and his experiences of childhood abuse, these experts did not
discover the child abuse by way of the drug abuse. Rather, Puiatti told them about
being abused as a child, and then they linked that physical abuse to Puiatti’s
struggles with drugs. In 1984, trial counsel and the trial experts did not enjoy the
same benefit of Puiatti’s candor. Trial counsel cannot be faulted for failing to link
Puiatti’s history of drug abuse with an otherwise-undisclosed history of child
abuse.
Puiatti stresses Dr. Meadows’s statement to trial counsel that Mrs. Puiatti
sometimes “broke spoons” when disciplining her children. Importantly, this
statement did not cause Dr. Meadows, an experienced mental health professional,
to diagnose or even suspect a history of child abuse. As the district court stated,
“[i]t strains credulity to think that not only was trial counsel ineffective as an
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attorney in investigating Puiatti’s background in 1984, but so too were Drs.
Meadow[s] and DelBeato incompetent and unable to evoke pivotal information
regarding Puiatti’s allegedly abusive childhood.”
Puiatti also argues that his altercation with Mr. Puiatti shortly before the
murder should have caused trial counsel to suspect child abuse. This altercation,
however, did not occur when Puiatti was a child. Rather, it occurred in the months
preceding Puiatti’s 1983 crimes, after Puiatti was married, served in the military,
and moved back to the family home and developed depression due to the death of
his infant son. As Mr. and Mrs. Puiatti both testified, the altercation was the result
of Puiatti’s living in the family home, his father suspecting drug usage, and Puiatti
having a negative attitude. We do not believe that this isolated altercation between
two adults (that did not actually result in physical violence beyond shoving) during
an emotionally charged period of both adults’ lives should have suggested to trial
counsel a history of child abuse.
Puiatti’s last supposed “red flag” is Puiatti’s handwritten life history,
specifically Puiatti’s express statement that his parents did not punish him “without
reason.” Puiatti contends that this statement “and its placement in the life history
should have signaled a larger underlying problem of abuse.” But Puiatti’s
statement did not describe what the “punishment” was, much less hint at child
abuse. This is especially so, given various other statements in Puiatti’s life history
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discounted any suggestion of child abuse, including his statements that: (1) his
“childhood was pretty normal”; (2) his parents “insisted [he] go see a counselor”
about his substance abuse; and (3) he “never wanted for anything.” 15
Thus, for all of the reasons explained and considered together, Garrett’s
investigation and presentation of mitigation evidence was not deficient and Puiatti
has not established unreasonable performance of counsel.
D. Prejudice Prong Principles
Even if we were to conclude that trial counsel’s pre-trial investigation and
presentation of mitigation evidence were ineffective assistance, we still deny the
petition because Puiatti has not carried his burden to establish prejudice.
For prejudice, the standard is whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Rose v. McNeil,

634 F.3d 1224

, 1241 (11th Cir.), cert. denied,

132 S. Ct. 190

 (2011) (quoting Strickland,

466 U.S. at 694

104 S. Ct. at 2068

). To
satisfy the prejudice prong, the “likelihood of a different result must be substantial,
not just conceivable.” Harrington, 562 U.S.at —,

131 S. Ct. at 792

. “Counsel’s
15
Finally, we reject Puiatti’s contention that trial counsel “misdirected the expert
witnesses,” and prevented Drs. Meadows and DelBeato from independently uncovering evidence
of child abuse. The record fully establishes that this was not the case. Additionally, as the
district court aptly observed, “the pivotal difference between the examinations by Drs. Meadows
and DelBeato in 1984 and the examinations by Drs. Greenberg and Olander in advance of the
2012 evidentiary hearing [in the § 2254 case] is that, while Puiatti concealed or otherwise failed
to mention his allegedly abusive upbringing during the 1984 examinations, he freely offered
details of abuse during the 2012 examinations.”
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errors must be so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 787–88 (quotation marks and citation omitted).
Because Puiatti alleges ineffective assistance in the penalty phase, he must
show that “there is a reasonable probability that, absent the errors, the sentencer
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Rose,

634 F.3d at

1241–42 (internal
quotation marks and citation omitted). In assessing prejudice, “we consider the
totality of the available mitigation evidence—both that adduced at trial, and the
evidence adduced in the habeas proceeding—and reweigh it against the evidence in
aggravation.” Porter v. McCollum,

558 U.S. 30

, 41,

130 S. Ct. 447

, 453–54 (2009)
(internal quotation marks and brackets omitted); see also Wong v. Belmontes,

558 U.S. 15

, 26,

130 S. Ct. 383

, 390 (2009) (“[T]he reviewing court must consider all
the evidence—the good and the bad—when evaluating prejudice.”).
E.    Puiatti’s Prejudice Claim
Puiatti’s prejudice claim fails for several reasons. First, even accepting the
new child abuse evidence as true, it is not certain or even likely that this evidence
would have caused the jury to make a different recommendation or the state trial
court in Puiatti’s case to find a statutory or non-statutory mitigating circumstance
at all. It is undisputed that Puiatti’s childhood was not depraved and impoverished.
We do recognize, however, that Puiatti presented evidence that he was: (1)
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physically abused by his father and mother, sometimes with objects like wooden
spoons, and sometimes without provocation; (2) verbally abused by his father, who
compared him negatively to his sister; (3) worked with his father and observed his
father cheat customers; and (4) had a mother who was abused by Puiatti’s father
and let men inside the family home, while locking her children outside in the rain.
Nevertheless, Puiatti came from a working class family who made various attempts
to support him. For example, Puiatti’s parents obtained counseling for him when
he developed a drug problem. They allowed him to return home after he left the
military. When Puiatti entered into a marriage, against his mother’s advice, Mrs.
Puiatti did all she could to support the young couple. 16
Of course, childhood abuse evidence can be mitigating during a capital
sentencing proceeding. See, e.g., Wiggins,

539 U.S. at

516–17,

123 S. Ct. at

2523–33; Ferrell, 640 F.3d at 1239–41. Although Puiatti’s childhood was far from
ideal, the record does not establish that the jury or the state trial court here would
have necessarily found it a mitigating factor or a strong one at that.
Second, even if we assume that Puiatti’s new evidence would have
established a mitigating factor, we conclude that there is no reasonable probability
16
The possibility that the sentencing court might not have found the type of child abuse
evidence in Puiatti’s case to be a mitigating factor is enhanced here by the fact that the same
court heard a wealth of good family and potential rehabilitation evidence but did not find a non-
statutory mitigating circumstance based on that evidence actually presented, although that
evidence was at least as compelling as the child abuse evidence Puiatti wishes counsel had
presented.
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that the state trial judge would have found that this mitigating evidence outweighed
the undisputed aggravating circumstances. There is no dispute that, even if trial
counsel had presented the evidence of child abuse, the trial court would have still
found the three aggravating circumstances: (1) that Puiatti’s offense was
committed during flight or to avoid arrest; (2) that it was committed for pecuniary
gain; and (3) that it was committed in a “cold, calculated, and premeditated
manner.”
The trial court gave significant weight to the “cold, calculated, and
premeditated” circumstance. In its post-sentencing statement of reasons, the trial
court stated: “[i]t would be difficult to imagine a more cold, calculated or
premeditated killing.” And the “cold, calculated, and premeditated” aggravator is
one of “the most serious aggravators set out in the statutory sentencing scheme.”
Ponticelli v. Sec’y, Fla. Dep’t of Corr.,

690 F.3d 1271

, 1300 (11th Cir. 2012)
(citing Larkins v. State,

739 So. 2d 90

, 95 (Fla. 1999)).
This Court has previously determined in cases like this one involving brutal
murders where a sentencing court found three aggravating factors, that new
mitigating evidence did not create a “reasonable probability” of a different
outcome. See Wood v. Allen,

542 F.3d 1281

, 1313 (11th Cir. 2008); Callahan v.
Campbell,

427 F.3d 897

, 938 (11th Cir. 2005). In Wood, this Court rejected the
§ 2254 petitioner’s claim that evidence of his limited mental capacity would have
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led to a reasonable probability of a different outcome, when the sentencing judge
stated that the three aggravating factors “far outweighed the mitigating
circumstances in all regards.” Wood,

542 F.3d at 1313

 (internal quotation marks
and alterations omitted). 17 Likewise, in Callahan, we held that a § 2254 petitioner
did not establish prejudice based on counsel’s failure to offer mitigating evidence
of child abuse when the sentencing court found three aggravating factors and there
was “overwhelming evidence” that Callahan had “kidnapped, raped and murdered”
his victim. Callahan, 427 F.3d at 938.18 We noted “the burden a defendant faces
when trying to overcome . . . harsh aggravating factors with mitigating evidence.”
Id. The conclusion that Puiatti cannot overcome this burden is even stronger here
than in Wood or Callahan, as those cases did not involve a finding of a “cold,
calculated, and premeditated” circumstance (or a similar factor) like the trial court
found in this case.19
17
In Wood, the three aggravating factors the Alabama trial court found were: “(1) Wood
murdered [the victim] during a burglary; (2) Wood had a prior violent felony conviction; and (3)
Wood murdered [the victim] while on parole.” Wood,

542 F.3d at 1313

.
18
In Callahan, the Alabama trial court found the following aggravating factors: (1) “the
crime was committed while Callahan was under sentence of imprisonment”; (2) “the defendant
had previously been convicted of a crime of violence”; and (3) “the murder was committed
during a kidnapping.” Callahan, 427 F.3d at 938.
19
Although Callahan and Wood both involved Alabama’s death penalty statute, we note
that the Alabama courts in those cases could have found, but did not, the following aggravating
circumstance: “The capital offense was especially heinous, atrocious, or cruel compared to other
capital offenses.” Ala. Code 13A-5-49(8).
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There is more though. If we remanded this case for a new penalty trial, the
sentencing court might find not just three aggravating circumstances, but others.
In 1984, the State agreed not to introduce evidence about the crimes Puiatti
committed the day before he killed Ritchie, which resulted in convictions for
attempted first degree murder, kidnapping, and armed robbery. In a new penalty
phase trial, the State would not be bound by that 1984 stipulation. In fact, the State
assures us that its case in aggravation “would include the prior violent felony
aggravator for Puiatti’s [other] convictions.” See

Fla. Stat. § 921.141

(5)(b) (listing
as an aggravating circumstance “[t]he defendant was previously convicted of
another capital felony or of a felony involving the use or threat of violence to the
person”).
Not only would the evidence about the prior attempted murder come up in
the State’s post-remand aggravation case, it would also be relevant to rebutting the
new child abuse evidence Puiatti now wishes to present. When Puiatti’s new
mental health expert, Dr. Greenberg, was cross-examined during the 2012
evidentiary hearing, he admitted that Puiatti had a high psychopathic deviant score.
He also acknowledged that research shows that high scorers on this the
psychopathic deviant test tend to engage in “asocial and antisocial acts including
lying, cheating, stealing, sexual acting out and excessive use of alcohol and /or
other drugs.” Dr. Greenberg conceded that Puiatti engaged in antisocial acts
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consistent with what one would expect from a high scorer on the test. Among the
acts that Dr. Greenberg acknowledged were consistent with Puiatti’s score on the
psychopathic deviant test were: (1) the attempted murder and armed robbery that
Puiatti and Glock committed the day before they murdered Ritchie; (2) Puiatti’s
attempts to smuggle drugs while on death row; and (3) Puiatti’s placing personal
advertisements on the internet, in violation of prison rules.
If Dr. Greenberg were to testify at new penalty phase trial, a similar cross-
examination would occur. The high score on the psychopathic deviant test, by
itself, would hurt Puiatti’s case because it is damaging not mitigating. See
DeYoung, 609 F.3d at1288 (noting that personality disorders involving antisocial
traits “have been found not to be mitigating”); Cummings v. Sec’y for Dep’t of
Corr.,

588 F.3d 1331

, 1368 (11th Cir. 2009) (noting that “a diagnosis of antisocial
personality disorder . . . is not mitigating but damaging”); Parker v. Sec’y for Dep’t
of Corr.,

331 F.3d 764

, 788 (11th Cir. 2003) (concluding that “jury might not
consider mitigating” clinical diagnosis that § 2254 petitioner “was antisocial and a
sociopath”); see also Looney v. State,

941 So. 2d 1017

, 1028–29 (Fla. 2006)
(stating “a diagnosis as a psychopath is a mental health factor viewed negatively by
jurors and is not really considered mitigation”). 20
20
We acknowledge that Dr. Greenberg did not necessarily diagnose Puiatti as a
psychopath. However, in light of the extensive discussion of common characteristics of high
scorers on the psychopathic deviant scale and how Puiatti’s actions fit with the description of
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Furthermore, the exhaustive discussion of how Puiatti’s behavior was
consistent with his high score on the psychopathic deviant test would cripple
Puiatti’s mitigation presentation. As this Court has noted, a § 2254 petitioner
cannot establish prejudice when there is a “virtual certainty” that the “‘good’
mitigation evidence” that the petitioner wishes was presented “would have led to
the introduction of ‘bad’ evidence.” Reed v. Sec’y, Fla. Dep’t of Corr.,

593 F.3d 1217

, 1246 (11th Cir. 2010) (petitioner could not establish prejudice based on
failure to offer testimony about his family background, when the State “assuredly
would have brought out that Reed assaulted his own grandmother and threatened
his brother’s wife”); see also Pooler, 702 F.3d at 1275 (“Much of the 3.850
evidence Pooler claims his trial counsel . . . should have presented in the penalty
phase was not mitigating but aggravating, or else would have opened the door to
the introduction of aggravating evidence that would have diluted its impact.”);
Windom v. Sec’y Dep’t of Corr.,

578 F.3d 1227

, 1251 (11th Cir. 2009) (“[A]ny
potential benefit to be gained by presenting the relatively weak mitigating evidence
in Windom’s case would have been severely undercut by rebuttal evidence of his
own misconduct, specifically, his involvement in a large-scale drug-dealing
operation.”); Wood,

542 F.3d at

1311–12 (holding that had counsel introduced
high scorers, it is unlikely that a sentencer would give weight to any difference between a formal
diagnosis as a psychopath and a high score on the psychopathic deviant test. And assuredly the
State this time would have more expert testimony too.
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evidence of § 2254 petitioner’s “limited intellectual functioning and special
education classes,” that evidence would have opened the door, inter alia, to an
expert’s report containing harmful information, including the petitioner’s long
criminal history and details about his crime); Gaskin v. Sec’y, Dep’t of Corr.,

494 F.3d 997

, 1004 (11th Cir. 2007) (§ 2254 petitioner alleging deficient investigation
for mitigating evidence could not establish prejudice when “the fact remains that
further investigation and further evidence would have opened the door to damaging
personal history evidence”); Robinson v. Moore,

300 F.3d 1320

, 1350 (11th Cir.
2002) (§ 2254 petitioner alleging deficient investigation for mitigating evidence
could not establish prejudice when new mitigating evidence about petitioner’s
“loving relationships with women” would have opened the door to evidence that
“five days after murdering and raping [the victim], Robinson allegedly raped and
robbed another woman . . . in similar circumstances”).
Not only does our precedent doom Puiatti’s claim, the Supreme Court’s
recent decision in Wong v. Belmontes makes clear that a “‘more-evidence-is-
better’ approach,” like the one Puiatti advocates, is not always the best strategy for
capital counsel. 558 U.S. at 25, 130 S. Ct. at 389. There, Belmontes argued that
his counsel at his murder trial should have, inter alia, offered expert testimony
about Belmontes’s mental state at the time of his crime. Id. at 23–24, 130 S. Ct. at
388–89. The Supreme Court determined that, had Belmontes’s attorney introduced
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expert testimony that attempted to “explain [Belmontes’s] behavior, or put[] it in
some favorable context,” id. at 24, 130 S. Ct. at 389, the expert would have been
cross-examined regarding another murder about which there was strong evidence
Belmontes committed. Id. at 17, 25, 130 S. Ct. at 389. The Supreme Court
declined to find prejudice because “[a] heavyhanded case to portray Belmontes in
the best possible light, with or without experts, would have invited the strongest
possible evidence in rebuttal—the evidence that Belmontes was responsible for not
one but two murders.” Id. at 25, 130 S. Ct. at 389.
Similarly here, a “heavyhanded case” to portray Puiatti as a sympathetic
victim of his parents’ abuse would have invited harmful and compelling rebuttal
evidence. The State would have mounted a strong rebuttal case to show that
Puiatti’s murder of Ritchie was not the result of abuse inflicted upon him as a
child. Rather, the murder was consistent with a pattern of antisocial behavior that
Puiatti had been engaging in throughout his life and which was suggested by
psychological test scores.
This is not a case where the value of the mitigating evidence is so strong that
it gives rise to a reasonable probability of a different outcome, notwithstanding the
aggravating circumstances actually found, or that would be found on remand. For
example, in Wiggins, the petitioner’s mother “frequently left Wiggins and his
siblings home alone for days, forcing them to beg for food and to eat paint chips
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and garbage.”

539 U.S. at

516–17,

123 S. Ct. at

2532–33. She also beat her
children for breaking into the family’s locked kitchen and “had sex with men while
her children slept in the same bed.”

. In one instance, his
mother “forced [Wiggins’s] hand against a hot stove burner” resulting in Wiggins’s
hospitalization.

Id. at 517

. Additionally, Wiggins’s foster
father and siblings molested and raped him.

. As an adult,
Wiggins was raped by a supervisor at his job.