Michael L. King v. Secretary, Department of Corrections ( 2019 )


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  •            Case: 18-11421    Date Filed: 10/25/2019    Page: 1 of 16
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-11421
    ________________________
    D.C. Docket No. 8:17-cv-00985-VMC-TGW
    MICHAEL L. KING,
    Petitioner - Appellant,
    versus
    SECRETARY, DEPARTMENT OF CORRECTIONS,
    ATTORNEY GENERAL, STATE OF FLORIDA,
    Respondents - Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (October 25, 2019)
    Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
    MARTIN, Circuit Judge:
    Case: 18-11421     Date Filed: 10/25/2019   Page: 2 of 16
    Michael King, a Florida death row inmate, appeals the District Court’s
    denial of his 
    28 U.S.C. § 2254
     petition for a writ of habeas corpus. Mr. King has
    raised three issues in this appeal: (1) whether trial counsel rendered ineffective
    assistance of counsel for failing to preserve a challenge to a peremptory strike
    under Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
     (1986) and J.E.B. v.
    Alabama ex rel. T.B., 
    511 U.S. 127
    , 
    114 S. Ct. 1419
     (1994); (2) whether trial
    counsel rendered ineffective assistance of counsel for failing to investigate Mr.
    King’s exposure to toxic substances; and (3) whether the District Court violated
    due process or otherwise abused its discretion by adopting portions of the State’s
    response brief in its order denying Mr. King’s § 2254 petition. After careful
    consideration, and with the benefit of oral argument, we affirm the denial of Mr.
    King’s habeas petition.
    I. BACKGROUND AND PROCEDURAL HISTORY
    Mr. King was convicted and sentenced to death in 2009 for the murder,
    kidnapping, and involuntary sexual battery of Denise Amber Lee. See King v.
    State (“King I”), 
    89 So. 3d 209
    , 219 (Fla. 2012). Mr. King’s crimes against Mrs.
    Lee were nightmarish. The horrific nature of his crimes is not disputed, so we will
    not elaborate on them here. Rather, in this appeal we address whether the
    performance of Mr. King’s trial counsel was deficient and whether the District
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    Court erred when it incorporated portions of the State’s response brief into its
    order.
    A. RELEVANT TRIAL PROCEEDINGS
    At his trial, Mr. King was represented by Carolyn Schlemmer, John Scotese,
    and Jerome Mesiner. See King v. State (“King II”), 
    211 So. 3d 866
    , 879 (Fla.
    2017). Ms. Schlemmer had been working on death penalty cases “for the better
    part of 20 years” at the time she came to represent Mr. King. Mr. Scotese had
    handled one capital case and therefore met the qualifications to handle capital
    cases on his own, while Mr. Mesiner did not. See 
    id. at 884
    .
    During voir dire, the State moved to use a peremptory challenge of Juror
    111, an African American woman. Mr. Scotese objected and asked for a “race
    neutral” justification for the strike. The State responded with:
    On Juror Number 111, she’s an 18-year-old female. She came across
    as meek, young and inexperienced. She’s the youngest on the panel we
    have existing so far. Her statement during the original death
    qualification was that living life in prison is more awful than a death
    sentence. Her brother has a pending felony drug charge. She watches
    the television show CSI. Commonly, a concern of ours is that they
    would hold us to a TV standard as opposed to a regular standard. And
    based on these foregoing reasons, we exercise our peremptory
    challenge on Number 111.
    In response, the trial court stated that other jurors on the panel “watch CSI or
    watch Perry Mason or whatever.” The State then asserted that “[our] race neutral
    reason, this is not a challenge for cause, she indicated that living a life in prison is
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    more awful than a death sentence.” The trial court explained that “[o]ther jurors
    have said the same thing.” In response, the State said it would “strike [the] other
    jurors . . . remaining on the panel that have said” life without parole is worse than
    the death sentence.
    The trial court then repeated that Juror 111’s brother “has a pending . . .
    criminal charge” and the State confirmed this was true. Thus, the trial court found
    that Juror 111’s brother’s pending drug charge was “a genuine race neutral reason”
    for removing Juror 111 from the jury, and overruled Mr. Scotese’s objection to the
    State’s peremptory challenge.
    Also relevant to this appeal is the penalty-phase evidence of Mr. King’s
    mental health. Mr. King offered the testimony of Dr. Joseph Chong Sang Wu, who
    conducted a PET scan and concluded that Mr. King had a traumatic brain injury.
    King II, 211 So. 3d at 876. Dr. Wu testified that people who suffer frontal lobe
    injuries are more likely to have poor judgment, exhibit blunted affect, take
    excessive risks, have difficulty regulating impulses such as aggression, and have
    difficulty separating fantasy from reality. Id. at 876–77. According to Dr. Wu,
    Mr. King’s “most recent verbal IQ score placed him in the borderline retarded
    range.” Id. at 877. Mr. King also presented the testimony of Dr. Kenneth Visser,
    who performed an IQ test on Mr. King. That testing of Mr. King produced a
    verbal IQ score of 71, a performance IQ score of 85, and a full-scale IQ of 76. Id.
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    Dr. Visser testified that this placed King in the borderline intellectual functioning
    range. Id.
    Ultimately, the jury unanimously recommended a sentence of death. King
    II, 211 So. 3d at 878. The trial court found the existence of two statutory
    mitigating circumstances: (1) Mr. King’s capacity to appreciate the criminality of
    his conduct or conform his conduct to the requirements of the law was
    substantially impaired (moderate weight), and (2) his age, thirty-six (little weight).
    Id. The trial court further found that Mr. King had established thirteen
    nonstatutory mitigating circumstances. See id. at 878–79. Nonetheless, the trial
    court found that the State proved four aggravating circumstances beyond a
    reasonable doubt and sentenced Mr. King to death. Id. at 878.
    B. DIRECT APPEAL
    On direct appeal, the Florida Supreme Court affirmed Mr. King’s
    convictions and death sentence. King I, 
    89 So. 3d at 212
    . The United States
    Supreme Court denied his petition for writ of certiorari on October 15, 2012. King
    v. Florida, 
    568 U.S. 964
    , 
    133 S. Ct. 478
     (2012).
    C. STATE COLLATERAL PROCEEDINGS
    In September 2013, Mr. King filed a motion for postconviction relief in the
    trial court under Florida Rule of Criminal Procedure 3.851. In his Rule 3.851
    motion, Mr. King argued, among other things, that his trial counsel was ineffective
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    for failing to investigate and present evidence regarding his exposure to toxic
    substances and for failing to properly preserve a Batson/J.E.B. challenge for direct
    appeal. After conducting an evidentiary hearing, the state postconviction court
    issued a written order denying relief in August 2014. The Florida Supreme Court
    affirmed the denial of relief in January 2017, King II, 211 So. 3d at 870–71, and
    denied his motion for rehearing on March 13, 2017.
    D. FEDERAL HABEAS PROCEEDINGS
    Mr. King filed his § 2254 petition in the District Court on April 27, 2017.
    He sought relief on six grounds. For our purposes, Mr. King raised both of his
    ineffective assistance of counsel claims and asserted that the Florida Supreme
    Court’s resolution of those claims was contrary to Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984). In particular, Mr. King argued that his trial
    counsel was ineffective for failing to investigate the effects of the toxins Mr. King
    was exposed to during his childhood and in his job as a plumber. He also raised
    the Batson/J.E.B. issue again.
    The District Court denied habeas relief and held that the Florida state courts
    reasonably applied Strickland in ruling that Mr. King failed to establish that his
    trial counsel’s failure to investigate his exposure to toxic substances was deficient.
    The District Court found that trial counsel consulted several experts to ascertain
    whether Mr. King suffered any neurological disorders. Further, one of these
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    experts discussed Mr. King’s exposure to toxins from rat poisoning and crack pipe
    fumes, but, at the time of trial, neither Mr. King, his family, the investigator, nor
    the medical experts alerted Mr. King’s trial counsel to the possible exposure of
    toxic chemicals from growing up near farms or from his plumbing career. As a
    result, the District Court held that Mr. King’s trial counsel had no reasonable basis
    for further toxin exposure investigation, so was not ineffective. The District Court
    also ruled Mr. King’s trial counsel was not ineffective for failing to preserve the
    Batson/J.E.B. challenge for direct appeal because there was evidence that Mr.
    King’s trial counsel did not want Juror 111—the juror at issue—on the jury.
    II. STANDARD OF REVIEW
    A. HABEAS STANDARDS
    Under § 2254, a prisoner held “in custody pursuant to the judgment of a
    State court” may seek habeas relief “only on the ground that he is in custody in
    violation of the Constitution or laws or treaties of the United States. 
    28 U.S.C. § 2254
    (a). Generally, a prisoner must first “fairly present” his federal claims to the
    state court and exhaust his state court remedies before seeking federal habeas
    relief. Snowden v. Singletary, 
    135 F.3d 732
    , 735 (11th Cir. 1998) (alteration
    adopted and quotation marks omitted). When a state court has adjudicated a
    prisoner’s claims on the merits, this Court’s review is governed by the
    Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, this
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    Court may not grant habeas relief with respect to such a claim 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). The AEDPA standard is “highly deferential” and “demands
    that state-court decisions be given the benefit of the doubt.” Evans v. Sec’y, Dep’t
    of Corr., 
    703 F.3d 1316
    , 1325 (11th Cir. 2013) (en banc) (quotation marks
    omitted). A decision “is not ‘contrary to’ federal law unless it contradicts the
    United States Supreme Court on a settled question of law or holds differently than
    did that Court on a set of materially indistinguishable facts.” 
    Id.
     (quotation marks
    omitted). A state court’s decision is not “an unreasonable application of federal
    law unless the state court identifies the correct governing legal principle as
    articulated by the United States Supreme Court, but unreasonably applies that
    principle to the facts of the petitioner’s case, unreasonably extends the principle to
    a new context where it should not apply, or unreasonably refuses to extend it to a
    new context where it should apply.” 
    Id.
     (citation omitted). When assessing a
    § 2254 petition under AEDPA, we do not ask whether the state court decision is
    correct, but rather whether it is reasonable. Id.
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    A district court’s denial of a habeas corpus petition is reviewed de novo.
    Ward v. Hall, 
    592 F.3d 1144
    , 1155 (11th Cir. 2010). “It is the petitioner’s burden
    to establish his right to habeas relief[,] and he must prove all facts necessary to
    show a constitutional violation.” Blankenship v. Hall, 
    542 F.3d 1253
    , 1270 (11th
    Cir. 2008) (citation omitted). The state court’s factual determinations are entitled
    to a presumption of correctness, and Mr. King bears the burden of rebutting that
    presumption by clear and convincing evidence. 
    28 U.S.C. § 2254
    (e)(1).
    B. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS UNDER
    AEDPA
    To establish a case of ineffective assistance of counsel, a petitioner must
    show that (1) his counsel’s performance was deficient and (2) his defense was
    prejudiced by the deficient performance. Strickland, 
    466 U.S. at 687
    , 
    104 S. Ct. at 2064
    . There is a strong presumption that counsel’s performance “falls within the
    wide range of reasonable professional assistance.” 
    Id. at 689
    , 
    104 S. Ct. at 2065
    .
    Trial counsel’s performance will not be considered deficient unless counsel’s
    representation fell below an objective standard of reasonableness or was “outside
    the wide range of professional competent assistance.” 
    Id.
     To demonstrate
    prejudice, “[t]he defendant must show that there is a reasonable probability that,
    but for counsel’s unprofessional errors, the result of the proceeding would have
    been different.” 
    Id. at 694
    , 
    104 S. Ct. at 2068
    . “A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” 
    Id.
     If a petitioner
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    fails to make a sufficient showing on either prong of the inquiry, his ineffective
    assistance of counsel claim fails. 
    Id. at 687
    , 
    104 S. Ct. at 2064
    .
    AEDPA adds another layer of deference to the Strickland analysis. See, e.g.,
    Williams v. Allen, 
    598 F.3d 778
    , 789 (11th Cir. 2010). To prevail on either of his
    ineffective assistance of counsel claims, Mr. King must therefore establish that
    (1) he has satisfied the elements of the Strickland standard and (2) that the State
    court applied Strickland in a manner that was contrary to, or involved an
    unreasonable application of clearly established Supreme Court precedent, or that
    the State court applied Strickland to facts it unreasonably determined. See 
    id.
    III. DISCUSSION
    A. INEFFECTIVE ASSISTANCE – BATSON/J.E.B. CLAIM
    We begin with Mr. King’s ineffective assistance of counsel claim regarding
    the State’s peremptory strike of Juror 111. He first argues that the Florida
    Supreme Court’s determination that Ms. Schlemmer strategically chose to forgo a
    challenge to Juror 111 was an unreasonable determination of the facts under our
    decision in Davis v. Sec’y for Dept. of Corr., 
    341 F.3d 1310
     (11th Cir. 2003). 1 He
    1
    Mr. King also asserts that the Florida Supreme Court “was not able to complete an
    adequate review of the Batson claim on direct appeal” because he claims his trial counsel was
    otherwise deficient in (1) failing to identify the race of similarly situated jurors; (2) failing to
    correct the trial court and the prosecutor’s misunderstanding of Juror 111’s questionnaire;
    (3) failing to conduct a comparative juror analysis; and (4) failing to raise a J.E.B. challenge to
    the State’s peremptory strike of Juror 111. We decline to address these arguments because our
    resolution of Mr. King’s Batson claim renders them moot. In particular, as we explain below, we
    conclude that we must affirm the District Court’s determination of Mr. King’s Batson claim
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    points out that after the State sought to use a peremptory strike on Juror 111, Ms.
    Schlemmer stated that “we just have an issue” and Mr. Scotese raised the
    objection. Mr. King says this record shows that Ms. Schlemmer sought to object to
    the State removing Juror 111 from the jury. Mr. King also maintains that Ms.
    Schlemmer inappropriately offered post hoc rationalizations for her decision under
    Wiggins v. Smith, 
    539 U.S. 510
    , 
    123 S. Ct. 2527
     (2003). Under the governing
    standards, these arguments fail.
    Mr. King has not shown that the Florida Supreme Court’s assessment of trial
    counsel’s performance is contrary to or an unreasonable application of clearly
    established federal law, or an unreasonable determination of the facts. On this
    record, the Florida Supreme Court’s determination that Mr. King’s trial counsel
    made a tactical decision to allow the State to strike Juror 111 was not
    unreasonable. The Florida Supreme Court noted Ms. Schlemmer’s testimony that
    although she did not have a specific recollection of the jury selection, based on the
    large “NO” written next to notes about Juror 111 she did not want Juror 111 on the
    panel. Based on this, she implied that further pressing of a Batson challenge was
    unnecessary. Further, even if Ms. Schlemmer was not the person who wrote “NO”
    next to the entry for Juror 111, Ms. Schlemmer was lead counsel during jury
    because the State court’s determination that trial counsel’s decision not to press the Batson claim
    was a permissible strategic one, was not contrary to or an unreasonable application of clearly
    established federal law, and it was not based on an unreasonable determination of the facts.
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    selection and oversaw the objections raised by others on her team. Thus the
    Florida Supreme Court reasonably determined that, as a matter of trial strategy,
    Mr. King’s trial counsel made a decision to allow the State to strike Juror 111. In
    other words, the Florida Supreme Court did not apply the facts in an objectively
    unreasonable manner when it rejected Mr. King’s Batson/J.E.B. claim. 
    28 U.S.C. § 2254
    (d). And it did not unreasonably apply Strickland when it denied Mr.
    King’s claim because under Strickland, an attorney does not perform
    incompetently when, as here, she makes a strategic decision that other competent
    attorneys might have made.
    We need not address the merits of Mr. King’s prejudice argument because
    he failed to make a showing of deficient performance. See Osley v. United States,
    
    751 F.3d 1214
    , 1222 (11th Cir. 2014) (noting “a court need not address both
    prongs if the defendant has made an insufficient showing on one”).
    B. INEFFECTIVE ASSISTANCE – TOXIN EXPOSURE EVIDENCE
    Mr. King next argues his trial counsel was ineffective during the penalty
    phase of his trial because she failed to investigate and present evidence showing
    Mr. King was exposed to harmful toxins throughout his life. Mr. King says that,
    had his trial counsel investigated and presented evidence of his exposure to toxic
    substances, that evidence would have explained Mr. King’s behavior and provided
    an additional explanation of his low IQ and brain injury. In particular, Mr. King
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    claims “the deficient performance in this case stems not from the complete lack of
    investigation or consultation with experts, but rather from a lack of consultation
    with an expert specifically tailored to the needs of Mr. King’s case.”
    As set out above, the Florida Supreme Court noted that trial counsel
    consulted several experts to ascertain whether Mr. King suffered any neurological
    disorders. The Court noted further that, at the time of trial, neither Mr. King, his
    family, the investigator, nor the medical experts alerted Mr. King’s trial counsel to
    his possible exposure of toxic chemicals from growing up near farms or in the
    course of his plumbing career. King II, 211 So. 3d at 882–83. The record supports
    this assessment by the Florida Supreme Court. Ms. Schlemmer testified she
    consulted with seven psychologists, one of whom reported no neurotoxic exposure.
    And, during her investigation, Mr. King reported only exposure to the possible
    toxic substance of “crack pipe fumes,” “marijuana,” and “rat poison.” The Florida
    Supreme Court reasonably summarized trial counsel’s investigation and noted that
    “[t]hrough her persistence, [Ms.] Schlemmer was able to present some mitigating
    mental health evidence via the testimony of Dr. Wu.” King II, 211 So. 3d at 882.
    Given these facts, and viewing counsel’s performance through the lens of AEDPA
    deference, we conclude that the scope of trial counsel’s investigation was
    reasonable. See Strickland, 
    466 U.S. at 699
    , 
    104 S. Ct. at 2070
     (holding that
    “counsel made a strategic choice to argue for the extreme emotional distress
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    mitigating circumstance” and that “strategy choice was well within the range of
    professionally reasonable judgments”); Williams v. Allen, 
    598 F.3d 778
    , 793–94
    (11th Cir. 2010) (holding counsel’s presentation of voluntary intoxication evidence
    was not deficient and, by failing to “demonstrate[] that counsel needed to argue
    further,” petitioner could not show counsel’s strategy was unreasonable); see also
    Newland v. Hall, 
    527 F.3d 1162
    , 1202 (11th Cir. 2008) (“In evaluating the
    reasonableness of a defense attorney’s investigation, we weigh heavily the
    information provided by the defendant.”).
    C. DUE PROCESS CLAIM
    Finally, Mr. King argues that the District Court violated his due process
    rights and abused its discretion by incorporating portions of the State’s response
    brief into its order denying Mr. King’s § 2254 petition. This argument fails as
    well, however, because a court’s adoption of portions of a party’s brief does not
    render its decision fundamentally unfair.
    We caution district courts against this practice. However, the findings
    contained in the District Court’s order, “though not the product of the workings of
    the district judge’s mind, are formally [hers]; they are not to be rejected out-of-
    hand, and they will stand if supported by evidence.” United States v. El Paso
    Natural Gas, 
    376 U.S. 651
    , 656, 
    84 S. Ct. 1044
    , 1047 (1964). There is no evidence
    here “that the process by which the [District Court] arrived at [the decision] was
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    fundamentally unfair.” See In re Colony Square Co., 
    819 F.2d 272
    , 276 (11th Cir.
    1987) (holding that orders drafted by a litigant without notice to the opposing party
    are not automatically invalid). This is not a case in which the District Court issued
    a “one-sentence summary denial[],” depriving us the opportunity to conduct
    meaningful appellate review. Danley v. Allen, 
    480 F.3d 1090
    , 1091 (11th Cir.
    2007) (holding district court orders “should contain sufficient explanations of their
    rulings”). On the contrary, the District Court set forth its reasons for denying each
    of Mr. King’s six claims in a 91-page order. We do not view the District Court’s
    actions as depriving Mr. King of his right “to an impartial and disinterested
    tribunal.” Marshall v. Jerrico, Inc., 
    446 U.S. 238
    , 242, 
    100 S. Ct. 1610
    , 1613
    (1980); see also Williams v. Pa., ___ U.S. ___, 
    136 S. Ct. 1899
    , 1909 (2016)
    (“Both the appearance and reality of impartial justice are necessary to the public
    legitimacy of judicial pronouncements.”). Because the District Court’s adoption of
    portions of the State’s brief in its opinion did not deprive Mr. King of a fair and
    impartial tribunal, we must deny Mr. King’s claim.
    IV. CONCLUSION
    The Florida Supreme Court’s assessment of Mr. King’s trial counsel’s
    performance was not contrary to or an unreasonable application of federal law.
    Mr. King cannot, therefore, prevail on either of his ineffective assistance of
    counsel claims. Also, although we do not endorse district courts indiscriminately
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    incorporating a party’s brief into their orders, there is no prohibition on the District
    Court from including in its order portions of a party’s brief that are supported by
    the evidence.
    AFFIRMED.
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