Arbelaez v. Florida Department of Corrections , 662 F. App'x 713 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14647
________________________
D.C. Docket No. 1:12-cv-23304-FAM
GUILLERMO O. ARBELAEZ,
Petitioner - Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 12, 2016)
Before HULL, MARCUS and JILL PRYOR, Circuit Judges.
PER CURIAM:
In this capital case, Guillermo Arbelaez appeals the district court’s denial of
his federal habeas petition. Arbelaez was sentenced to death in Florida for the
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murder of his former girlfriend’s five year old son, which he carried out to exact
revenge against her after an argument. Following an unsuccessful direct appeal
and collateral proceedings in the Florida state courts, Arbelaez filed a federal
habeas petition in the United States District Court for the Southern District of
Florida, which the district court denied. Arbelaez appeals the rejection of his
petition on two grounds. First, he contends that his trial counsel was
constitutionally ineffective in investigating and presenting to the jury a case in
mitigation of the death penalty. Second, he contends the Florida courts’
determination that he was not intellectually disabled (and therefore ineligible for
the death penalty) constituted an unreasonable application of clearly established
law and was based on an unreasonable determination of the facts presented at an
evidentiary hearing.
After a thorough review of the briefing and the record, and with the benefit
of oral argument, we affirm the denial of Arbelaez’s petition.1 With regard to the
ineffective assistance claim, we conclude that Arbelaez has failed to demonstrate
that his counsel’s performance prejudiced his penalty phase proceedings. As
regards his intellectual disability claim, we conclude he has failed to demonstrate
that the Florida Supreme Court unreasonably applied the law or made unreasonable
1
Arbelaez’s motion to stay further appellate proceedings is DENIED. All other pending
motions are DENIED AS MOOT.
2
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determinations of fact when it concluded that he lacked concurrent deficits in
adaptive behavior.
I. FACTUAL BACKGROUND
Arbelaez was convicted in Florida of kidnapping and first degree murder. A
jury voted 11 to 1 to recommend a death sentence, and the trial court accepted the
recommendation. Below we recount the events that led to Arbelaez’s conviction
and sentence, as well as evidence adduced at his state postconviction proceedings.
A. Facts Elicited at Trial
Shortly after Arbelaez met Graciela Alfara, the victim Julio Rivas’s mother,
he moved in with her and her family (five year old Julio, two teenaged daughters,
and a nineteen year old cousin), and the two became intimate. See Arbelaez v.
State (“Arbelaez I”), 626 So. 2d 169, 170 (Fla. 1993). The relationship ended soon
after it began, however, when Alfara accused Arbelaez of touching one of her
daughters inappropriately. Id. Shortly after the breakup, Arbelaez saw Alfara kiss
another man. Id. When he confronted her, Alfara told Arbelaez that she did not
love him and he should move out. Id.
The next morning, while Alfara was still asleep, Arbelaez took Julio from
the home. Id. at 171. Arbelaez drove to a restaurant for coffee. Id. Leaving Julio
in the car, Arbelaez went inside, where he spoke to his friend Juan Londrian about
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his fight with Alfara. Id. Londrian testified at trial that Arbelaez told him “that he
was going to do something that would assure ‘that bitch is going to remember me
for the rest of her life.’” Id. Arbelaez left the restaurant and, after driving around
with Julio in the car for a couple of hours, attempted to call Alfara. Id. When
Alfara refused to speak with him, he “drove to the crest of the Powell Bridge on
the Rickenbacker Causeway and stopped, exited his car, and lifted the hood,
pretending that his car had broken down.” Id. There, he threw Julio off the bridge
into the water 70 feet below. Id.
According to evidence introduced at trial, Julio was beaten and strangled
before he was thrown off the bridge. Id. at 173-74. A medical examiner testified
that the cause of death was asphyxia resulting from both strangulation and
drowning and that the boy’s body “had a large bruise on the right leg” and
“numerous bracket-shaped and rectangular-shaped bruises on the left side” of the
body. Id. at 174. “The child’s face and forehead also had numerous linear
abrasions consistent with it being knocked or pressed into something.” Id. The
jury saw photographs of Julio’s body which depicted his injuries. When police
located Arbelaez’s car, they observed damage to the dashboard “consistent with
something coming into contact with the panel.” Id. at 171.
The jury heard that Arbelaez confessed to the crime five times. Immediately
after the murder, Arbelaez confessed to a friend, Pedro Salazar. He told Salazar
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“that he ‘shook’ the child and ‘squeezed the boy’s neck.’” Id. He also told Salazar
that he threw Julio off the bridge because he wanted revenge against Alfara. Id.
Arbelaez fled to Colombia, and while there he spoke with Federal Bureau of
Investigation Detective Rubin Munoz. Id. at 172. Arbelaez gave his second
confession to Munoz, telling the detective that he had killed Julio and explaining:
“‘As a Latin you would understand the best way to get to a woman is through her
children.’” Id.
When Arbelaez returned voluntarily to the United States two months after
the murder, Homicide Detective Eddy Martinez arrested him at the airport. Id. at
173. While in custody, Arbelaez confessed three more times to Julio’s murder. In
his third confession, “Arbelaez stated that on the day of the murder he had stopped
[on the bridge], raised the hood in order to pretend that he was stranded, and then
threw the child off the bridge.” Id. The fourth confession, which was audiotaped,
was similar in content. The fifth, also similar in content, was videotaped. In each
taped interview, “Arbelaez indicated that he killed the child as a plan of revenge
against [Alfara].” Id.
Despite these confessions, Arbelaez testified on his own behalf at trial,
where he denied committing the murder. Although he admitted taking Julio from
Alfara’s house, he said that he had car trouble on the bridge, forgot about Julio
when he went to look under his hood, heard a scream, and then saw Julio floating
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in the water below. Id. at 174. Arbelaez testified that he tore his car’s dashboard
apart because he was “disgusted with it all.” Id. When confronted with his prior
confessions, Arbelaez claimed that Salazar, Munoz, and Martinez were lying. Id.
The jury found Arbelaez guilty of kidnapping and first degree murder. Id.
B. Sentencing Proceedings
At the sentencing phase, the State called no witnesses to testify. Defense
counsel presented six witnesses in mitigation. Detective Martinez testified that, to
his knowledge, Arbelaez had no significant criminal history and returned
voluntarily to the United States after he had fled to Colombia. Id. Four other
witnesses—Londrian, Pedro Salazar, Adelfa Salazar, and Marta Salazar—testified
about their relationship with Arbelaez. Each testified that Arbelaez was an honest,
hard-working individual who never took narcotics or drank excessively. Id. A
sixth witness, neurologist Dr. Raul Lopez, testified that he treated Arbelaez for
“chronic epileptic seizures” a few years before the murder. Id. at 174-75.
The jury recommended a death sentence by a vote of 11 to 1. Id. at 175.
The trial judge found three aggravating circumstances: the homicide was (1)
committed in a cold, calculated, and premeditated manner without any pretense of
moral or legal justification (“CCP”); (2) especially heinous, atrocious, or cruel
(“HAC”); and (3) committed while Arbelaez was engaged in a kidnapping. Fla.
Stat. § 921.141(5)(d), (h), (i) (1989). The judge found one statutory mitigating
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circumstance: Arbelaez had no significant history of prior criminal history. Id.
§ 921.141(6)(a). And the judge found one nonstatutory mitigating circumstance:
Arbelaez demonstrated remorse. After weighing these factors, the judge adopted
the jury’s recommendation and imposed a death sentence.
C. Direct Appeal and State Postconviction Proceedings
The Florida Supreme Court affirmed Arbelaez’s convictions and sentence on
direct appeal. Arbelaez I, 626 So. 2d 169, cert. denied, 114 S. Ct. 2123 (1994).
Arbelaez then initiated state postconviction proceedings. His first proceeding
concerned his claim that counsel rendered ineffective assistance in failing to
investigate and present an adequate case in mitigation of the death penalty. After
the Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth
Amendment prohibits the execution of intellectually disabled persons, Arbelaez
initiated another state proceeding alleging that he was intellectually disabled.
1. Ineffective Assistance Postconviction Motion
The trial court conducted an evidentiary hearing2 on Arbelaez’s ineffective
assistance claim at which postconviction counsel elicited testimony from several
2
This evidentiary hearing came after the trial court initially summarily denied relief and
the Florida Supreme Court remanded. See Arbelaez v. State, 775 So. 2d 909 (Fla. 2000).
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witnesses, including trial counsel Reemberto Diaz, 3 clinical and forensic
psychologist Dr. Merry Haber, neuropsychologist and behavioral epileptologist Dr.
Ruth Latterner, and two of Arbelaez’s sisters.
Arbelaez’s sisters testified about Arbelaez’s troubled childhood in
Colombia. Both testified that Arbelaez suffered severe physical abuse at the hands
of their father and, to a lesser extent, their mother, brother, and at least one teacher.
They recounted that their family was poor and the children often went hungry.
Arbelaez’s sisters further testified that Arbelaez was a slow learner at school,
endured epileptic episodes without medical treatment, experienced depression (and
abused marijuana to cope), attempted suicide several times, and spent time in a
mental hospital.
Postconviction counsel’s experts testified about Arbelaez’s mental health
and intellectual functioning. Dr. Haber testified that, when she screened Arbelaez
prior to trial at counsel’s behest, she believed Arbelaez to be of borderline
intelligence. She suspected that, based on Arbelaez’s epilepsy, he likely has
organic brain impairment.4 She testified that Arbelaez showed signs of a
3
Because we assume for purposes of analyzing this claim under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), that trial counsel performed deficiently, we do
not recount Diaz’s testimony.
4
Postconviction counsel introduced Dr. Haber’s testimony in large part to demonstrate
that trial counsel was deficient in failing to investigate red flags about Arbelaez’s mental health
and family history. We do not recount her testimony relevant to deficient performance because
of our assumption for purposes of this opinion that counsel’s performance was deficient under
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depressive disorder and previously had undergone electroshock therapy in
Colombia while hospitalized after a suicide attempt. Dr. Latterner, who evaluated
Arbelaez in preparation for the evidentiary hearing, testified that Arbelaez is
intellectually disabled and suffers from epilepsy and organic brain damage. The
State called clinical psychologist Dr. Sonia Ruiz, who testified that she did not
believe Arbelaez is intellectually disabled or suffers from organic brain
impairment.
The trial court rejected Arbelaez’s ineffective assistance claim, and the
Florida Supreme Court affirmed. See Arbelaez v. State, 898 So. 2d 25, 41 (Fla.
2005). The Florida Supreme Court divided Arbelaez’s ineffective assistance claim
into subclaims—failure to investigate and present evidence of (1) epilepsy, (2)
other mental health mitigation, and (3) family history—and then analyzed deficient
performance and prejudice individually for each one. With respect to epilepsy, the
Florida Supreme Court concluded that Arbelaez failed to show counsel performed
deficiently or that any deficiency prejudiced him. See Strickland v. Washington,
466 U.S. 668, 687 (1984) (explaining that, to establish ineffective assistance of
counsel, the defendant “must show that counsel’s performance was deficient” and
“that the deficient performance prejudiced the defense”). As to other mental health
Strickland. To be clear, we do not decide whether trial counsel was deficient but only assume it
for purposes of this opinion.
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mitigation, the court concluded that, although counsel’s performance was deficient,
Arbelaez could not demonstrate prejudice. With respect to family history, the
Florida Supreme Court held that counsel’s performance was not deficient. The
court did not address prejudice as it pertained to this subclaim. 5
2. Intellectual Disability Postconviction Motion
In a separate proceeding, the trial court conducted an evidentiary hearing on
Arbelaez’s claim that he is intellectually disabled and therefore ineligible for the
death penalty. 6 Specifically, the court conducted the hearing to determine whether
Arbelaez satisfied Florida’s definition of intellectual disability, that is,
“significantly subaverage general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested during the period from
conception to age 18.” Fla. R. Crim. P. 3.203; see Atkins, 536 U.S. at 317 (“[W]e
leave to the States the task of developing appropriate ways to enforce the
constitutional restriction upon their execution of sentences.” (alterations and
internal quotation marks omitted)).
As relevant to this appeal, postconviction counsel proffered testimony from
psychologist Dr. Ricardo Weinstein and educational psychologist Dr. Thomas
5
After the Florida Supreme Court denied relief, Arbelaez did not petition the Supreme
Court of the United States for a writ of certiorari.
6
As with his ineffective assistance of counsel hearing, Arbelaez’s intellectual disability
hearing also came after the trial court summarily denied this claim and the Florida Supreme
Court remanded for a hearing. See Arbelaez v. State, 950 So. 2d 413 (Fla. 2006).
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Oakland to support the claim that Arbelaez is intellectually disabled.7 The State
presented the testimony of psychologist Dr. Enrique Suarez. Court appointed
expert Dr. Sonia Ruiz, a forensic psychologist (who had testified at Arbelaez’s
ineffective assistance evidentiary hearing), also testified. Both Dr. Suarez and Dr.
Ruiz testified Arbelaez was not intellectually disabled, and thus their conclusions
about Arbelaez’s intellectual functioning contradicted the opinions of Arbelaez’s
experts.After evaluating Arbelaez, Dr. Weinstein opined that he was intellectually
disabled. Dr. Weinstein obtained an intellectual quotient (“IQ”) score of 65, which
he testified qualified as significantly subaverage general intellectual functioning.
As to deficits in adaptive behavior, Dr. Weinstein testified that he did not formally
assess Arbelaez’s deficits concurrent with the IQ evaluation, although he generally
observed some deficits during the evaluation.
According to Dr. Weinstein, people with intellectual disabilities are poor
self-reporters of their own adaptive functioning, so it is best to obtain this
information from the individual’s community. Dr. Weinstein opined that, due to
its restrictive environment, a prison cannot constitute a community and prison
guards would be inappropriate subjects for his interviews. Dr. Oakland agreed
with Dr. Weinstein that prison was an inappropriate setting for assessing adaptive
7
Arbelaez’s counsel also called several laywitnesses, including friends and family who
knew Arbelaez in Colombia or Florida and three corrections officers who had observed Arbelaez
in prison. Their testimony is immaterial to the issues we address here.
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deficits, testifying that “[i]t is not possible to assess adaptive behavior within the
setting similar to death row.” So instead, Dr. Weinstein reached his conclusion
that Arbelaez suffered from concurrent deficits in adaptive behavior based on
interviews with family members, priests, a teacher, and several friends, as well as a
review of school, medical, and prison records. He also obtained measures of
Arbelaez’s adaptive functioning by asking Arbelaez’s mother and a schoolteacher
to complete the Adaptive Behavior Assessment Scales (“ABAS”), a test used to
evaluate an individual via members of his community. Based on interviews, the
ABAS results, and his observations, Dr. Weinstein concluded that Arbelaez had
concurrent deficits in adaptive functioning. Relying on his interviews with people
who knew Arbelaez as a child, Dr. Weinstein concluded that Arbelaez had
significantly subaverage general intellectual functioning and adaptive behavioral
deficits prior to age 18.
Dr. Weinstein’s opinion was rejected by the State’s expert, Dr. Suarez, and
by the court-appointed expert, Dr. Ruiz. Dr. Suarez evaluated Arbelaez and,
considering information from before and during his incarceration, including formal
tests of concurrent adaptive functioning, opined that he was not intellectually
disabled. He based his opinion on the facts that Arbelaez: needed no support to
function in his daily life (he was able to drive and run errands and he
communicated with others, even in English); came to this country with relatively
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little assistance; secured employment and performed adequately; used an alias at
work; and fled the country after his crime. Dr. Suarez administered a series of tests
and opined from the results that Arbelaez’s reasoning level was probably in the
average range.
Dr. Ruiz testified about her evaluation of Arbelaez during preparation for the
ineffective assistance of counsel evidentiary hearing. She testified that she did not
believe Arbelaez was intellectually disabled, but conceded that she relied primarily
on Arbelaez’s self-reporting. After interviewing Arbelaez, Dr. Ruiz concluded
Arbelaez was not intellectually disabled because he reported that he had traveled
alone to Venezuela, the Bahamas, Panama, and Jamaica before coming to the
United States and had held and performed a variety of jobs before being
incarcerated. Dr. Ruiz administered a number of tests and reviewed other reports
and records on Arbelaez. She concluded from her evaluation that Arbelaez had a
borderline intelligence level, no intellectual disability, and abilities to communicate
and live independently that were inconsistent with intellectual disability.
The trial court denied relief, concluding that Arbelaez failed to demonstrate
significantly subaverage intellectual functioning or concurrent adaptive deficits.
The Florida Supreme Court affirmed, holding that “Arbelaez did not prove that he
has concurrent deficits in adaptive behavior as required by” Florida law. Arbelaez
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v. State, 72 So. 3d 745, 745 (Fla. 2011), cert. denied sub nom., Arbelaez v. Florida,
132 S. Ct. 1950 (2012).
D. Federal Habeas Proceeding
After he had exhausted his state appeals, Arbelaez filed a petition for a writ
of habeas corpus in federal district court, raising several claims including his
ineffective assistance and intellectual disability claims. The district court denied
Arbelaez relief but granted him a certificate of appealability (“COA”) on his claim
that counsel rendered ineffective assistance at the penalty phase of his trial. We
expanded Arbelaez’s COA to include his claim that the Florida Supreme Court’s
intellectual disability determination constituted an unreasonable application of
clearly established federal law and was based on an unreasonable determination of
facts in light of the evidence presented at the evidentiary hearing.
II. STANDARD OF REVIEW
“When reviewing a district court’s grant or denial of habeas relief, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 899
(11th Cir. 2013) (internal quotation marks omitted).
The standard by which we and the district court must review the relevant
state court decisions depends on whether the state court rendered a decision on the
merits of Arbelaez’s claims. If so, then we review those claims under the
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standards set by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Williams v. Taylor, 529 U.S. 362, 402-03 (2000). Generally,
AEDPA bars federal courts from granting habeas relief to a petitioner on a claim
that was adjudicated on the merits in state court unless the state court’s
adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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). “‘[C]learly established Federal law’ under § 2254(d)(1) is
the governing legal principle or principles set forth by the Supreme Court at the
time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003). With respect to § 2254(d)(2), “[s]tate court fact-findings are entitled to a
presumption of correctness unless the petitioner rebuts that presumption by clear
and convincing evidence.” Conner v. GDCP Warden, 784 F.3d 752, 761 (11th Cir.
2015).
If the state courts have not rendered a decision on the merits of a claim, then
our review is de novo. See Porter v. McCollum, 558 U.S. 30, 39 (2009) (“Because
the state court did not decide whether Porter’s counsel was deficient, we review
this element of Porter’s Strickland claim de novo.”).
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For the reasons that follow, we review Arbelaez’s ineffective assistance of
counsel claim de novo and his intellectual disability claim through AEDPA’s
deferential lens.
III. DISCUSSION
A. Ineffective Assistance of Counsel Claim
Arbelaez claims that his trial counsel was ineffective in failing to investigate
and present evidence about his mental health problems and troubled family history
during the penalty phase and that there is a reasonable probability that, had the jury
heard that evidence, it would have recommended a sentence other than death.
Under Strickland, 466 U.S. at 686, a defendant has a Sixth Amendment right to
effective assistance of trial counsel. Counsel renders ineffective assistance,
warranting vacatur of a conviction or sentence, when his performance falls “below
an objective standard of reasonableness,” taking into account prevailing
professional norms, and when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 688, 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
We assume for present purposes that Arbelaez’s trial counsel rendered
deficient performance in failing to investigate and present a sufficient case in
mitigation. See Castillo v. Fla., Sec’y of DOC, 722 F.3d 1281, 1283-84 (11th Cir.
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2013) (making “simplifying assumptions in favor of the petitioner” to facilitate the
Court’s analysis, including assuming deficient performance and deciding
Strickland’s prejudice prong only). Thus, we must decide whether counsel’s
deficient performance prejudiced Arbelaez in the penalty phase of his trial,
considering in addition to the testimony counsel actually elicited at the penalty
phase the mental health and family history mitigating evidence adduced at the
postconviction evidentiary hearing.
Although the Florida Supreme Court decided on the merits the prejudice
prong of one subclaim—failure to investigate and present mental health mitigation
evidence—it failed to assess prejudice as it pertained to counsel’s failure to
investigate and present evidence of Arbelaez’s family background. We thus are
left with a situation in which part of our prejudice inquiry may require deference to
the Florida Supreme Court’s decision, while part may not. We need not resolve
how to apply AEDPA deference to the Florida Supreme Court’s decision, however,
because even under de novo review Arbelaez cannot demonstrate that counsel’s
failure to investigate and present this mitigating evidence prejudiced his defense.
See id. Moreover, we consider as one claim rather than as independent subclaims
Arbelaez’s contention that counsel failed to investigate and present adequate
evidence in mitigation; this evidence is inherently interrelated. See Wiggins v.
Smith, 539 U.S. 510, 534-35 (2003) (considering mitigating evidence of
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petitioner’s “diminished mental capacities” together with his “troubled history” in
deciding whether counsel’s deficient performance prejudiced his defense).
We conclude that Arbelaez suffered no prejudice from his counsel’s failure
to present mitigation testimony from his sisters and mental health experts.
Arbelaez’s sisters testified that he suffered from an extremely physically abusive
and impoverished childhood. They and Arbelaez’s mental health experts testified
that Arbelaez had epilepsy with organic brain damage, was depressed, had
attempted suicide, and had low intellectual functioning. All of these circumstances
indisputably are mitigating. See id. Nevertheless, when we consider this new
mitigating evidence together with the mitigation evidence actually presented at
trial—that Arbelaez was hard working and lacked any significant criminal
history—and weigh it against the evidence in aggravation, we cannot conclude that
Arbelaez has met Strickland’s standard for prejudice.8
“This is not a case where the weight of the aggravating circumstances or the
evidence supporting them was weak.” Sochor v. Sec’y, Dep’t of Corr., 685 F.3d
1016, 1030 (11th Cir. 2012) (internal quotation marks omitted). After the jury
recommended a death sentence, the trial judge found that the prosecution proved
three statutory aggravators, including CCP and HAC. The Florida Supreme Court
8
The trial judge also concluded that Arbelaez demonstrated remorse but, in light of
Arbelaez’s denial of any involvement of the crime at trial, understandably assigned that
mitigating factor little weight.
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“has consistently recognized that CCP and HAC are two of the weightiest
aggravators in Florida’s statutory sentencing scheme.” Brown v. State, 143 So. 3d
392, 405 (Fla. 2014). The evidence postconviction counsel introduced would not
have reduced the impact of these powerful aggravators sufficient to undermine our
confidence in the outcome of Arbelaez’s penalty phase proceedings.
The new mitigating evidence would not have mitigated the strength of the
HAC aggravator, which “‘pertains more to the nature of the killing and the
surrounding circumstances’” than the defendant’s mental state. Hardwick v. Sec’y,
Fla. Dep’t of Corr., 803 F.3d 541, 561 (11th Cir. 2015) (quoting Stano v. State,
460 So. 2d 890, 893 (Fla. 1984)). Evidence introduced at trial demonstrated that
five year old Julio was kidnapped, driven around for several hours, beaten,
strangled, and thrown 70 feet into the water, where he drowned. The jury saw
photographs that demonstrated the extent of Julio’s injuries, including photographs
of his body and the damaged dashboard of Arbelaez’s car.
Similarly, the mitigating evidence regarding Arbelaez’s mental health and
troubled childhood is insufficient to undermine substantially the strength of the
evidence supporting the CCP aggravator in this case. The jury heard that Arbelaez
told a friend before the murder that he was going to “assure ‘that bitch is going to
remember me for the rest of her life,’” referring to Alfara. Arbelaez I, 626 So. 2d
at 171. The jury heard about not one, not two, but five confessions Arbelaez gave,
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including two confessions in Arbelaez’s own recorded voice. These confessions
likely were extraordinarily powerful evidence in aggravation. Remarkably
consistent in their chilling details—Arbelaez repeatedly explained that he
murdered Julio to exact revenge upon the child’s mother—these confessions
provided the jury with a concrete basis on which to conclude that the murder was
cold, calculated, and premeditated.
In sum, evidence of Arbelaez’s mental health and troubled family
background undoubtedly would have been mitigating. Even so, in light of the
highly aggravated nature of the crime at issue in this case, we conclude that there is
no reasonable probability that the evidence would have convinced the jury to
recommend a sentence other than death. See Crawford v. Head, 311 F.3d 1288,
1322 (11th Cir. 2002) (concluding upon a de novo review that evidence of a
defendant’s alcoholic father and disadvantaged childhood, although mitigating,
would not overcome an “extremely aggravated” murder). Accordingly, we affirm
the denial of relief on Arbelaez’s ineffective assistance of counsel claim.
B. Intellectual Disability Claim
The Eighth Amendment to the United States Constitution prohibits the
execution of the intellectually disabled. Atkins, 536 U.S. at 321. Consistent with
Atkins, we look to Florida law for the applicable definition of intellectual
disability. See Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009). Florida
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law defines intellectual disability as “significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior and manifested
during the period from conception to age 18.” Fla. R. Crim. P. 3.203.
“[S]ignificantly subaverage general intellectual functioning” means “performance
that is two or more standard deviations from the mean score on a standardized
intelligence test.” Id. We assume for purposes of this opinion that Arbelaez meets
this requirement, see Castillo, 722 F.3d at 1283-84, and consider the adaptive
behavior deficiency prong.
“[A]daptive behavior” means “the effectiveness or degree with which an
individual meets the standards of personal independence and social responsibility
expected of his or her age, cultural group, and community.” Fla. R. Crim. P.
3.203. The American Association of Intellectual and Developmental Disabilities’
(“AAIDD”) definition of intellectual disability, with which Florida’s definition is
consistent, defines adaptive deficits as “‘limitations in two or more of the
following applicable adaptive skill areas: communication, self-care, home living,
social skills, community use, self-direction, health and safety, functional
academics, leisure, and work.’” Atkins, 536 U.S. at 308 n.3 (quoting AAIDD
definition in effect in 2002). 9
9
Defense expert Dr. Marc Tasse conceded that Florida’s definition of intellectual
disability, including a requirement of concurrent adaptive deficits, was consistent with the
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The Florida Supreme Court denied on the merits Arbelaez’s intellectual
disability claim, so we review it under AEDPA’s deferential standard of review.
Arbelaez contends that the Florida Supreme Court’s decision is not entitled to
deference because it was based on an unreasonable application of clearly
established federal law, § 2254(d)(1), and an unreasonable determination of the
facts, § 2254(d)(2). We disagree.
1. Florida Supreme Court’s Application of Clearly Established Federal
Law
Arbelaez contends that Florida’s requirement that a petitioner demonstrate
concurrent deficits in adaptive behavior contravenes Atkins and the Supreme
Court’s later decision in Hall v. Florida, 134 S. Ct. 1986 (2014). 10 He argues that
these cases, taken together, require states to conform their definitions of
intellectual disability to accepted medical and professional standards. And,
definitions used by the AAIDD and the Diagnostic and Statistical Manual of Mental Disorders,
4th Edition. “Earlier publications of the AAIDD [such as the one quoted in Atkins] were
published under its former name, the American Association on Mental Retardation.” Hall v.
Florida, 134 S. Ct. 1986, 2003 n.1 (2014).
10
In Hall, the Supreme Court held that Florida’s rigid rule foreclosing “all further
exploration of intellectual disability” if a petitioner is deemed to have an IQ above 70 was
unconstitutional. 134 S. Ct. at 1990. But Hall was decided after the Florida Supreme Court
rendered its decision on Arbelaez’s intellectual disability postconviction motion, so it was not a
“governing legal principle” at that time. Andrade, 538 U.S. at 71-72. We conclude, however,
that the Florida Supreme Court’s decision withstands our deferential review even if Hall applied
retroactively. See Castillo, 722 F.3d at 1283-84.
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Arbelaez asserts, medical and professional standards dictate that adaptive deficits
cannot be determined adequately in a prison environment.
We acknowledge Arbelaez’s concern about the difficulties attendant in
assessing deficits in adaptive behavior in a restrictive carceral environment. See
Hall v. State, No. SC10-1335, __ So. 3d __, 2016 WL 4697766, at *7 (Fla. Sept. 8,
2016) (“Evaluating the adaptive behavior of an individual who has spent much of
his adult life incarcerated can be difficult.”). But the question before us is not
whether we would render a different decision on Arbelaez’s claim than the Florida
Supreme Court. Andrade, 538 U.S. at 75. Rather, to overcome AEDPA’s
deferential standard of review, Arbelaez “must show that the state court’s
ruling . . . was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Arbelaez cannot make this showing. Nothing in the holdings of Atkins or
Hall speaks directly to the methodology for discerning an individual’s deficits in
adaptive functioning. See Williams, 529 U.S. at 412 (emphasizing that the phrase
“‘clearly established Federal law, as determined by the Supreme Court of the
United States’ . . . refers to the holdings, as opposed to the dicta,” of the Supreme
Court’s decisions). The Florida Supreme Court’s determination that United States
Supreme Court precedent is consistent with Florida’s requirement that a petitioner
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show concurrent deficits in adaptive functioning is not, therefore, beyond any
fairminded disagreement.
2. Florida Supreme Court’s Determination of Facts
Arbelaez also contends that the Florida Supreme Court’s decision that he is
not intellectually disabled rests on an unreasonable factual determination. Again,
we assume for our purposes that Arbelaez has satisfied the required showing of
significantly subaverage intellectual functioning, so we do not address the trial
court’s denial on that ground. With respect to its findings on adaptive functioning,
Arbelaez argues that the Florida Supreme Court’s decision was premised on three
flawed factual determinations. He asserts that the decision: (1) ignored that Dr.
Weinstein informally observed deficits in Arbelaez’s adaptive behavior during his
evaluation, (2) disregarded much or all of Dr. Weinstein’s findings regarding
Arbelaez’s adaptive functioning leading up to his incarceration, and (3)
unreasonably rejected Dr. Weinstein’s use of the ABAS as a retrospective measure
of adaptive functioning.
“A determination as to whether a person is [intellectually disabled] is a
finding of fact.” Fults v. GDCP Warden, 764 F.3d 1311, 1319 (11th Cir. 2014).
We may only disturb a state court’s factual findings if they are unreasonable. “The
term ‘unreasonable’ is no doubt difficult to define.” Williams, 529 U.S. at 410.
Nonetheless, “it is enough to reiterate that a state-court factual determination is not
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unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013)
(internal quotation marks omitted). Thus, “even if reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination.” Wood v. Allen, 558 U.S. 290,
302 (2010) (alterations and internal quotation marks omitted).
Arbelaez cannot demonstrate that the Florida Supreme Court’s conclusion
that he lacks deficits in adaptive behavior was based on an unreasonable
determination of the facts introduced at the evidentiary hearing. Under Florida
law, a person is intellectually disabled only if he has deficits in adaptive behavior
existing concurrently with significantly subaverage general intellectual
functioning. Although Dr. Weinstein made observations of Arbelaez’s adaptive
behavior during the in-prison evaluation, he conceded that he failed to use any
formal measure to assess Arbelaez’s adaptive functioning concurrent with the IQ
testing. By contrast, Dr. Suarez assessed Arbelaez’s adaptive behavior both
retrospectively and concurrently with intellectual functioning testing, concluding
that Arbelaez lacked the requisite adaptive behavioral deficits. Because the basis
for Dr. Suarez’s opinion more closely tracked Florida’s definition of intellectual
disability, the Florida Supreme Court was entitled to credit Dr. Suarez’s opinion
over Dr. Weinstein’s.
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Given that it was reasonable to credit Dr. Suarez’s opinion over Dr.
Weinstein’s based on Dr. Weinstein’s failure to formally assess concurrent
adaptive deficits, Arbelaez’s other two points of dispute with the factual findings
regarding his intellectual disability claim also must fail. Those arguments pertain
to the soundness of Dr. Weinstein’s retrospective study of adaptive functioning,
which the Florida Supreme Court reasonably decided was insufficient for a reliable
opinion on concurrent deficits in adaptive behavior. Thus, as the district court
concluded, “even if Arbelaez had proved [through Dr. Weinstein’s evaluation] that
he had adaptive deficits while growing up in Colombia and during the time he
lived in Florida,” “he has not shown that the Florida Supreme Court’s
determination that he failed to prove concurrent adaptive deficits at the time of the
intellectual quotient testing was an unreasonable determination of facts.” Arbelaez
v. Crews, 43 F. Supp. 3d 1271, 1297 (S.D. Fla. 2014).
Because Arbelaez was unable to pierce AEDPA deference, we are required
to defer to the Florida Supreme Court’s determination that he is not intellectually
disabled. Accordingly, we affirm the denial of relief on Arbelaez’s intellectual
disability claim.
IV. CONCLUSION
The district court’s denial of Arbelaez’s petition for a writ of habeas corpus
is affirmed.
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AFFIRMED.
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