Johnny Shane Kormondy v. Secretary, FLorida Department of Corrections , 688 F.3d 1244 ( 2012 )


Menu:
  •              Case: 11-15001     Date Filed: 07/31/2012   Page: 1 of 90
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ____________
    No. 11-15001
    _____________
    D.C. Docket No. 3:08-cv-00316-RH
    JOHNNY SHANE KORMONDY,
    Plaintiff-Appellant,
    versus
    SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
    Defendant-Appellees.
    ______________
    Appeal from the United States District Court
    for the Northern District of Florida
    _____________
    (July 31, 2012)
    Before TJOFLAT, HULL, and WILSON, Circuit Judges.
    TJOFLAT, Circuit Judge:
    Johnny Shane Kormondy, a Florida death row inmate convicted of murder,
    appeals the decision of the United States District Court for the Northern District of
    Case: 11-15001        Date Filed: 07/31/2012        Page: 2 of 90
    Florida denying his petition for a writ of habeas corpus. Two state court trial
    proceedings were before the District Court when it ruled. The first proceeding
    was the guilt phase of Kormondy’s bifurcated trial in July 1994.1 The second
    proceeding was the penalty phase of Kormondy’s trial held in May 1999. The
    District Court denied the writ with respect to both phases of the trial. After
    briefing and oral argument, we affirm the District Court’s decision.2
    I.
    On July 11, 1993, Gary McAdams was murdered in his Pensacola, Florida
    residence. Sixteen days later, an Escambia County grand jury indicted three men
    for the murder, Johnny Shane Kormondy, Curtis Buffkin, and James Hazen.3 The
    1
    The penalty phase of that trial, which resulted in a death sentence, was not before the
    court because the Florida Supreme Court vacated the sentence and remanded the case for retrial
    of the penalty phase.
    2
    We affirm the District Court’s adjudication of three constitutional claims. Two were
    certified for appeal by the District Court and one by this court. See 
    28 U.S.C. § 2253
    (c). The
    three claims are discussed in parts IV and V, infra. We do not consider one claim the District
    Court certified and one this court certified. The first is a claim that Kormondy’s attorney was
    ineffective because he failed to impeach the victim’s wife based on a prior inconsistent
    statement. That claim was not presented to the Florida Supreme Court or the District Court. The
    second is not a constitutional claim, but a claim seeking a new trial on newly discovered
    evidence which purportedly would have shown that Kormondy is “actually innocent” of the death
    sentence. See 
    28 USC § 2254
    (a) (Federal courts “shall entertain an application for a writ of
    habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
    the ground that he is in custody in violation of the Constitution or laws or treaties of the United
    States.”).
    3
    Count 1 of the indictment charged murder in the first degree in violation of 
    Fla. Stat. § 782.04
    .
    2
    Case: 11-15001       Date Filed: 07/31/2012       Page: 3 of 90
    State sought the death penalty against all three because the murder had occurred
    while they were burglarizing the McAdams residence, committing armed robbery,
    and committing sexual battery on Cecilia McAdams, the victim’s wife.4
    On arraignment in the Escambia County Circuit Court, before Circuit Judge
    John Kuder, the defendants entered pleas of not guilty and stood trial. Buffkin
    was tried first. The jury reached a verdict, but before the verdict was published,
    Buffkin and the State entered into a plea agreement that called for Buffkin to plead
    guilty to first-degree murder, receive a life sentence, and testify for the State in the
    cases against Kormondy and Hazen if requested. The Circuit Court approved the
    agreement, accepted Buffkin’s plea of guilty to the murder charge, and discharged
    the jury. Kormondy’s trial followed Buffkin’s.
    The guilt phase of Kormondy’s trial began on July 5, 1994. Russell Edgar,
    an Assistant State Attorney for the First Judicial Circuit of Florida, represented the
    State. Antoinette Stitt and Ronald Davis, Assistant Public Defenders for the First
    Judicial Circuit, represented Kormondy; Stitt handled the guilt phase and Davis
    handled the penalty phase.
    4
    Counts 2, 3, and 4 charged sexual battery in violation of 
    Fla. Stat. § 794.011
    . Count 5
    charged battery during a burglary in violation of 
    Fla. Stat. § 810.02
    . Count 6 charged robbery
    with a firearm in violation of 
    Fla. Stat. § 812.13
    .
    3
    Case: 11-15001      Date Filed: 07/31/2012      Page: 4 of 90
    A.
    The following facts were established in the guilt phase of the trial during the
    State’s case in chief.
    On Saturday, July 10, 1993, Johnny Shane Kormondy, Curtis Buffkin, and
    James Hazen gathered at Kormondy’s residence in Pensacola, Florida. Buffkin,
    who had recently escaped from prison, was staying with Kormondy and his wife,
    Valerie. Hazen was in town from Oklahoma.5 The day before, Hazen and
    Kormondy had gotten together and had cased a Pensacola subdivision, Thousand
    Oaks, looking for a home to burglarize. They failed to spot a promising target, but
    nevertheless decided to case the subdivision again, the next day, with Buffkin.
    The three men left the Kormondy residence Saturday evening, July 10, at
    about 9:00 p.m., in Kormondy’s Camaro.6 They drove around for three hours
    until, shortly after midnight, they arrived at the Thousand Oaks subdivision. They
    parked the Camaro there and waited; they were looking for a house that appeared
    to be occupied. Shortly after 12:30 a.m., now the morning of July 11, Gary and
    Cecilia McAdams pulled into their garage. The McAdamses were returning from
    Cecilia’s twenty-year high school reunion at a local country club. They left the
    5
    Hazen’s “foster mother” and Kormondy’s mother, Elaine Barnett, were sisters.
    6
    Before they left, Valerie overheard the men talking. Buffkin said something about
    robbing a house on Gulf Beach Highway.
    4
    Case: 11-15001        Date Filed: 07/31/2012       Page: 5 of 90
    garage door open (so Gary could take their dog for a short walk), and entered the
    house through a door in the garage. At this point, Kormondy and Hazen covered
    their faces with masks and their hands with socks while Buffkin, who was armed
    with a .44-caliber pistol,7 entered the garage and knocked on the McAdamses’
    door. The McAdamses hardly had time to take off their shoes before they heard
    Buffkin’s knock. Gary McAdams asked who was there; Buffkin responded, “It’s
    me.” Unable to recognize the voice, Gary asked again, only to be met with, “It’s
    me.” Assuming that a neighbor was knocking, he opened the door and found
    Buffkin standing there with a gun.
    Buffkin forced his way into the house and ordered the McAdamses to kneel
    on the kitchen floor with their heads down. Hazen and Kormondy then entered,
    and, while Buffkin stood over the McAdamses, they closed the blinds, pulled the
    telephone cords out of the wall, and began rummaging through the dresser drawers
    and closets in the master bedroom. Hazen found a .38-caliber handgun Gary
    McAdams kept in his dresser, and on returning to the kitchen, rubbed the gun
    across Cecilia’s McAdams’s hip. Hazen then took Mrs. McAdams, at gunpoint,
    into the master bedroom and the adjoining vanity, where he ordered her to undress,
    sit on the toilet seat, and perform oral sex. Mrs. McAdams had difficulty
    7
    Buffkin had stolen the pistol during a burglary on the night of July 9, 1993.
    5
    Case: 11-15001     Date Filed: 07/31/2012   Page: 6 of 90
    performing. She “kept gagging and thinking [she] was going to throw up, and he
    told [her] that if [she] let it come out of [her] mouth one more time, he would
    shoot [her].” While this was occurring, Kormondy was standing beside Cecilia’s
    bed going through one of her purses. He had long “stringy, mousy brown” hair
    that came to his collarbone. Kormondy then entered the vanity and raped Mrs.
    McAdams while Hazen continued to force Mrs. McAdams to engage in oral sex.
    When Hazen and Kormondy were finished, they took Cecilia, still naked, to
    the kitchen and made her kneel down in front of her husband. They then forced
    Mr. McAdams, at gunpoint, to drink a beer from the refrigerator and, as he drank
    the beer, Buffkin said to Mrs. McAdams, “I don’t know what the other two did to
    you, but I think you’re going to like what I’m going to do.” With his .44-caliber
    pistol in hand, he took Cecilia into the bedroom, made her lie down in the vanity
    area and began to rape her. Moments later, a loud noise—the sound of
    gunfire—suddenly emanated from the front of the house, and Mrs. McAdams
    heard someone call for “Bubba” or “Buff.” Buffkin quickly threw a towel over her
    face and ran from the bedroom. As he did, he fired a shot from his .44-caliber
    pistol. The bullet went through the bedroom carpet and lodged in the floor
    beneath.
    6
    Case: 11-15001      Date Filed: 07/31/2012     Page: 7 of 90
    Cecilia McAdams ran to the kitchen. The intruders were gone, and she
    found her husband lying on his back and bleeding from the back of his head. She
    tried calling 911, but the phone did not work, so she ran out the front door
    screaming until the neighbors responded.
    Gary McAdams died on the kitchen floor from a shot fired from his .38
    caliber handgun. According to the medical examiner, the gun was pressed firmly
    against his skull when the trigger was pulled.8
    Kormondy, Buffkin, and Hazen returned to the Kormondy residence. At
    5:00 a.m., Valerie Kormondy awoke, found the three men sitting quietly in the
    living room, and went back to bed. At 7:00 a.m., the phone rang, and Valerie
    answered it. Kormondy’s mother, Elaine Barnett, was calling. She and Hazen
    were supposed to go fishing, and she wanted Valerie to drive Hazen to the place
    where they were to meet. Valerie awakened Hazen and drove him there in
    Kormondy’s Camaro. After dropping Hazen off, Valerie returned to her residence.
    Before exiting the car, she saw a bag of jewelry in the back seat; it contained items
    she had not seen before. On entering the house, she observed Kormondy and
    8
    The medical examiner so concluded because there were no powder burns on the scalp;
    the power burns were inside the skull.
    7
    Case: 11-15001        Date Filed: 07/31/2012      Page: 8 of 90
    Buffkin sleeping. She awakened them and ordered them out of the house. They
    left, and she went to her mother’s house.
    Kormondy went to stay with one of Valerie’s cousins, William Long, who
    was living alone. Long had been convicted of felony possession of marijuana and
    placed on probation. His probation was about to be revoked, however, because he
    had failed five drug tests. He was “on the run,” lying low. One night, while at a
    Junior Food Store buying gas, he and Kormondy saw a bulletin offering a $50,000
    reward for the arrest and conviction of the persons involved in the McAdams
    murder. Kormondy remarked that “the only way they would catch the guy that
    shot Mr. McAdams was if they were walking right behind us.” A day or so later,
    after a night of drinking, Kormondy told Long “how everything took
    place”—about forcing their way into the McAdamses’ residence, the sexual
    assaults, and “how he shot him in the back of the head.”9 Long told a friend of his,
    Chris Robarts, what Kormondy had said, and they decided that Robarts would
    contact the police and they would split the reward. Long did not want to get
    involved because he might be arrested for violating the conditions of his
    probation. He was running the risk of an arrest, though, because Robarts would
    9
    At Kormondy’s trial, Long testified that he smoked fifty dollars worth of crack-cocaine
    and drank six pitchers of beer prior to Kormondy’s revelation that night.
    8
    Case: 11-15001       Date Filed: 07/31/2012   Page: 9 of 90
    have to tell the police where he got his information. Robarts did, and two
    homicide investigators from the Escambia County Sheriff’s Office, Allen Cotton
    and Wendell Hall, came to see Long and persuaded him to meet Kormondy under
    police surveillance.
    Kormondy was working at local cabinet shop, and Long suggested that he
    meet Kormondy there. The inspectors agreed, and on Monday afternoon, July 19,
    Long entered the cabinet shop wearing a wire; the inspectors filmed the scene
    from a van across the street. When Kormondy saw Long, he took him aside. Long
    got straight to the point. He told Kormondy that the police had been to see him
    about the murder, and he asked Kormondy whether he had told anyone else about
    “him killing the dude.” Kormondy said he did not know what Long was talking
    about. Long, in response, said that he was leaving town; Kormondy said, “I’m
    leaving town, too,” and jumped in a gray Dodge Ram and took off.
    Sheriff’s deputies pursued the Dodge Ram and pulled it over. When the
    deputies exited their vehicles, Kormondy sped off. He soon abandoned his vehicle
    and continued on foot. A canine unit from the Sheriff’s Office located him in a
    shed in a residential backyard.
    Kormondy was the first to be arrested. After he was taken into custody, he
    was questioned by officers on two occasions, both on July 19. During the first
    9
    Case: 11-15001     Date Filed: 07/31/2012   Page: 10 of 90
    interrogation, which was unrecorded, Kormondy confessed to being present at the
    scene of the crime, but denied raping Mrs. McAdams or killing Mr. McAdams.
    Kormondy claimed that Buffkin shot Mr. McAdams. During the second
    interrogation, which was recorded, Kormondy did not deviate from his previous
    statement.
    The State rested its case on July 7, 1994. Following a brief recess, the
    Defense rested as well, without putting on any evidence. After deliberating for
    four hours, the jury returned its verdict, finding Kormondy guilty as charged. The
    trial then moved to the penalty phase, which began the next day, on July 8.
    B.
    The penalty phase began with Judge Kuder instructing the jury as to the
    proceeding that would take place and the jury’s function now that the defendant
    had been found guilty of first-degree murder. The jurors’ role would be to render
    an advisory sentence as to the punishment the court should impose, death or life
    imprisonment. They were to base their recommendation on the evidence presented
    during the guilt phase and the evidence the State and the defendant would be
    presenting relative to the nature of the crime and the character of the defendant.
    After considering the evidence, they were to determine, first, whether sufficient
    10
    Case: 11-15001       Date Filed: 07/31/2012       Page: 11 of 90
    aggravating circumstances10 existed that would justify the imposition of the death
    10
    The following aggravating circumstances may justify the imposition of the death
    penalty in Florida:
    (a) The capital felony was committed by a person previously convicted of a felony
    and under sentence of imprisonment or placed on community control or on felony
    probation.
    (b) The defendant was previously convicted of another capital felony or of a
    felony involving the use or threat of violence to the person.
    (c) The defendant knowingly created a great risk of death to many persons.
    (d) The capital felony was committed while the defendant was engaged, or was an
    accomplice, in the commission of, or an attempt to commit, or flight after
    committing or attempting to commit, any: robbery; sexual battery; arson; burglary;
    kidnapping; aircraft piracy; or the unlawful throwing, placing, or discharging of a
    destructive device or bomb.
    (e) The capital felony was committed for the purpose of avoiding or preventing a
    lawful arrest or effecting an escape from custody.
    (f) The capital felony was committed for pecuniary gain.
    (g) The capital felony was committed to disrupt or hinder the lawful exercise of
    any governmental function or the enforcement of laws.
    (h) The capital felony was especially heinous, atrocious, or cruel.
    (i) The capital felony was a homicide and was committed in a cold, calculated,
    and premeditated manner without any pretense of moral or legal justification.
    (j) The victim of the capital felony was a law enforcement officer engaged in the
    performance of his or her official duties.
    (k) The victim of the capital felony was an elected or appointed public official
    engaged in the performance of his or her official duties if the motive for the
    capital felony was related, in whole or in part, to the victim’s official capacity.
    (l) The victim of the capital felony was a person less than 12 years of age.
    (m) The victim of the capital felony was particularly vulnerable due to advanced
    age or disability, or because the defendant stood in a position of familial or
    custodial authority over the victim.
    (n) The capital felony was committed by a criminal gang member . . . .
    (o) The capital felony was committed by a person designated as a sexual predator
    . . . or a person previously designated as a sexual predator who had the sexual
    predator designation removed.
    (p) The capital felony was committed by a person subject to an injunction issued
    pursuant to [Fla. Stat. §] 741.30 or [Fla. Stat. §] 784.046, or a foreign protection
    order accorded full faith and credit pursuant to [Fla. Stat. §] 741.315, and was
    committed against the petitioner who obtained the injunction or protection order
    or any spouse, child, sibling, or parent of the petitioner.
    11
    Case: 11-15001       Date Filed: 07/31/2012        Page: 12 of 90
    penalty. If aggravating circumstances were found, they would determine whether
    the aggravating circumstances were sufficient to outweigh the mitigating
    circumstances,11 if any, the evidence had shown.12
    
    Fla. Stat. § 921.141
    (5).
    11
    The following mitigating circumstances may counsel against the imposition of the
    death penalty in Florida:
    (a) The defendant has no significant history of prior criminal activity.
    (b) The capital felony was committed while the defendant was under the influence
    of extreme mental or emotional disturbance.
    (c) The victim was a participant in the defendant’s conduct or consented to the
    act.
    (d) The defendant was an accomplice in the capital felony committed by another
    person and his or her participation was relatively minor.
    (e) The defendant acted under extreme duress or under the substantial domination
    of another person.
    (f) The capacity of the defendant to appreciate the criminality of his or her
    conduct or to conform his or her conduct to the requirements of law was
    substantially impaired.
    (g) The age of the defendant at the time of the crime.
    (h) The existence of any other factors in the defendant’s background that would
    mitigate against imposition of the death penalty.
    
    Fla. Stat. § 921.141
    (6).
    12
    Florida Statutes § 921.141(2) provides, in relevant part:
    After hearing all the evidence, the jury shall deliberate and render an advisory
    sentence to the court, based on the following matters:
    (a) Whether sufficient aggravating circumstances exist as enumerated in
    subsection (5);
    (b) Whether sufficient mitigating circumstances exist which outweigh the
    aggravating circumstances found to exist; and
    (c) Based on these considerations, whether the defendant should be
    sentenced to life imprisonment or death.
    
    Fla. Stat. § 91.141
    (2). Judge Kuder, in instructing the jury both before and at the close of the
    penalty phase, informed the jury that it could not recommended a death sentence unless the
    12
    Case: 11-15001        Date Filed: 07/31/2012       Page: 13 of 90
    The State’s case was brief. Russell Edgar, alluding to the court’s
    instruction, informed the jury that the State’s case for a death-penalty
    recommendation would be based on the evidence presented during the guilt phase
    of the trial. With that brief announcement, Edgar rested the State’s case.
    Ronald Davis, on Kormondy’s behalf, told the jury that the Defense’s case
    for a life-imprisonment recommendation would consist of the testimony of nine
    witnesses. His strategy was to have three of the witnesses—Kormondy’s mother,
    Elaine Barnett; half sister, Laura Halfacre Hopkins; and half brother, Willis
    Halfacre—provide the jury with a narrative description of Kormondy’s life and the
    events that influenced the development of his character and personality and, in
    effect, molded the person who entered the McAdams’ residence on July 11, 1993.
    A fourth witness, Dr. James D. Larson, a psychologist, drawing on their testimony,
    would describe that person in psychological terms.
    Kormondy’s life story actually began with Elaine Barnett’s story about her
    life prior to Kormondy’s birth because, according to Dr. Larson, what she had
    aggravating circumstances it found outweighed the mitigating circumstances shown by the
    evidence. The parties jointly requested the instruction even though it appears to be contrary to
    the language of subsection (b) above. See Rigterink v. State, 
    66 So. 3d 866
    , 897 (Fla. 2011)
    (“Time and again, the [Florida Supreme Court] has ‘rejected the argument that the standard
    penalty phase jury instructions impermissibly shift the burden to the defense to prove that death
    is not the appropriate sentence.’” (quoting Taylor v. State, 937 So 2d 590, 599 (Fla. 2006)).
    13
    Case: 11-15001     Date Filed: 07/31/2012   Page: 14 of 90
    experienced prior to that event had a profound effect on the person Kormondy
    eventually became. Davis’s questioning of Elaine elicited the following.
    She was born in 1946 in Miami, Florida, into a dysfunctional family. Her
    father was a truck driver and an alcoholic who beat his wife and children,
    especially on returning from a long road trip. As Elaine got older, her father
    sexually abused her. The household was in constant turmoil.
    In 1961, Elaine, as a fifteen-year-old tenth grader, dropped out of high
    school and married Bill Halfacre. Halfacre, like Elaine’s father, was an alcoholic
    and physically abusive. She had two children with Halfacre: in 1963, a son named
    Willis who went by “Bill” and, in 1965, a daughter named Laura. By 1968,
    Elaine’s life with Halfacre had become unbearable, so she divorced him and
    married Vernon Holderfield, with whom she had become acquainted prior to the
    divorce. Holderfield, a house painter, likewise was an alcoholic who frequently
    beat her. The abuse accelerated after Elaine became pregnant with their son,
    Vernon, and nine months after he was born she left Holderfield to move back in
    with Halfacre.
    This time, Elaine and Halfacre stayed together for about a year. Life was
    peaceful for a brief spell, but Halfacre soon returned to his old habit of physical
    abuse. When she could no longer take it, she left Halfacre and returned to
    14
    Case: 11-15001    Date Filed: 07/31/2012    Page: 15 of 90
    Holderfield. Elaine’s second stint with Holderfield lasted less than a year because
    he beat her, “[drank,] and [ran] around with women.”
    In 1970, Elaine Barnett, her three children and her younger sister, Sam
    Castle, moved to Pensacola, Florida, where Castle had a job waiting. In 1971,
    Elaine began living with Johnny Frank Kormondy (“Frank”), a long distance truck
    driver. She thought he was single, but he wasn’t—he had a wife from whom he
    was separated. For six months, Elaine, leaving her children behind with her sister
    Sam, rode with Frank on his long-distance hauls.
    On May 20, 1972, Johnny Shane Kormondy (“Kormondy” or “Shane”) was
    born. By that time, Frank had left the scene. When Elaine later sued him for child
    support, he denied that Kormondy was his. She soon found herself unable to care
    for Kormondy, so, in early 1973, a sister living in Louisiana took him to live with
    her. He stayed with the sister for six months, then returned to live with Elaine.
    Meanwhile, Elaine found a substitute for Frank: Mike Wright, an insurance
    salesman. He loved his whiskey; as she put it, he was a “person that went from
    alcohol to religion weekly.” They stayed together for a year; then Wright
    disappeared. Shortly thereafter, Elaine married Gary Arant; at age nineteen, he
    was eight years her junior. Arant loved alcohol as much as Wright, and, when
    drunk, he abused Elaine. The marriage lasted one month and eight days. The day
    15
    Case: 11-15001     Date Filed: 07/31/2012    Page: 16 of 90
    Arrant left, he was roaring drunk and tried to beat her in front of her children.
    Elaine defended herself by running at him with a butcher knife.
    In the latter part of 1975 or early 1976, Elaine married George Barnett,
    another alcoholic whom she had met while she and Arant were still together. By
    this time, Shane had been enrolled in a “Head Start” program. He completed that
    program in 1976 and, then, in 1977 and 1978, attended pre-kindergarten and
    kindergarten. He was known to the school authorities and his classmates as
    Johnny Shane Barnett, although George Barnett had not adopted him.
    When Shane finished kindergarten, the Barnetts, having acquired a trailer,
    moved to Alabama, taking the four children with them. The family lived on public
    assistance and food stamps. George drank every day, and, as Elaine described it,
    “went to church 8 days a week.” He went from “the deep side of alcohol to the
    deep side of religion.”
    One day in 1983, Laura, then eighteen, announced to her mother and George
    that she was getting married. Later the same day, George told Elaine that he was
    divorcing her. He stayed until Laura’s wedding, then moved in with his brother,
    who lived a mile or so away in the Alabama countryside. According to Laura,
    George’s departure had a devastating effect on Shane, then eleven years old. As
    Dr. Larson testified, George, “an alcoholic” and a “very inadequate role model,”
    16
    Case: 11-15001     Date Filed: 07/31/2012   Page: 17 of 90
    was “the first stabilizing influence in [Kormondy’s] life.” “[T]his surrogate father,
    this one person who’s been stable in his life, this alcoholic person leaves very
    abruptly.” Shane ran away from home to try to live with him, but Elaine found
    him at George’s brother’s place and brought him home. As Laura testified, Shane
    “idolized” George and blamed Elaine for his leaving. “[H]e started rebelling
    against my mother. My mother couldn’t control him. He’d run away. . . . and go
    find George, and George would tell him to go back home.” “He just was
    uncontrollable then.”
    In 1984, one of Elaine’s sisters, who was living in Oklahoma, told Elaine
    that she could get a job there. Elaine, acting on the sister’s advice, moved to
    Oklahoma, taking Vernon and Shane with her. They stayed with the sister for two
    months. After Elaine obtained work, they moved into an apartment. Shortly
    thereafter, Vernon suffered a cerebral aneurysm, and surgery was performed at a
    hospital “[100] miles away.” Elaine stayed there with him; meanwhile, her next
    door neighbor took care of Shane.
    Elaine, Vernon, and Shane moved back to Pensacola in 1986, and took up
    residence in Sam Castle’s backyard trailer. Shane, now fourteen, attended Ransom
    Middle School. Vernon needed further brain surgery; it was performed in
    Gainesville, Florida, where Vernon and Elaine stayed for a month. While they
    17
    Case: 11-15001     Date Filed: 07/31/2012    Page: 18 of 90
    were in Gainesville, Shane stayed with Aunt Sam. When Elaine and Vernon
    returned to Pensacola, she and the two boys moved into an apartment for the
    handicapped, as Vernon was bound to a wheelchair. They lived on the “SSI
    check[s]” she received as a result of Vernon’s disability.
    By 1988, Shane, now sixteen, was a tenth grader at Tate High School. He
    dropped out of school before the year ended. In Elaine’s words, he was “doing
    drugs” and “had friends [she] didn’t care for.” And he wound up in juvenile court.
    Shane dated Valerie Kay Fletcher while enrolled at Tate. They were married four
    years later, in 1992, one week after their son, Devin Shane, was born.
    Elaine’s daughter, Laura Halfacre Hopkins, and son, Willis Halfacre,
    augmented Elaine’s testimony, focusing on some of the shortcomings of Elaine’s
    parenting. Laura described the “family situation” when Shane was born.
    We stayed alone. My mother worked all the time, worked nights
    bartending. Bill and I pretty much took care of Vernon . . . . He’s
    younger than me. When Shane . . . was born, he went to live with my
    Aunt Sam for a while. [Mother] financially . . . . was having a hard
    time with three kids, so let alone four. . . . [W]e had to watch out for
    [ourselves] . . . . [S]he wasn’t able to afford a babysitter . . . , so we
    stayed in the house . . . when she went to work . . . . [W]e put
    ourselves to bed, and when she’d come home . . . when she got off
    work—she usually worked until closing, about 2:00 or 3:00 in the
    morning.
    18
    Case: 11-15001     Date Filed: 07/31/2012   Page: 19 of 90
    Laura said that between marriages, her mother had “several boyfriends,” who
    “sometimes . . . [came] to the house.” One, Mike Wright, “lived with us for a
    while.”
    Willis Halfacre described his mother as having a bad temper depending on
    “what kind of mood she’d be in.” He had seen her “pick up the two smaller
    children, Vernon and Shane, and literally just shake them, and they’d fall to the
    ground like a rag doll.” He said that he also had a bad temper and that it was “a
    result of growing up in this household.” It had affected his family situation, a
    reason why he and his wife had separated. He had “been to counseling voluntarily
    because [he] had some problems going on in the house with [his] wife and
    physical violence had come into play and . . . [he] felt [he] needed to go see
    somebody before [he] got too deep.”
    To assess Kormondy’s character and personality, and perhaps find an
    explanation for the behavior Kormondy exhibited on the night of July 11 and 12,
    1993, Dr. Larson gave Kormondy a battery of psychological and intelligence tests;
    reviewed his elementary school records, juvenile records, arrest records, and the
    records of his confinement in the Escambia County and Santa Rosa County jails;
    read depositions of witnesses in the case; and interviewed family
    members—Elaine, Laura and Willis.
    19
    Case: 11-15001      Date Filed: 07/31/2012     Page: 20 of 90
    According to Larson, the psychological tests results revealed no “serious
    mental illness,” but they did show “addiction” and “a very serious personality
    disorder[:] . . . mixed personality disorder . . . [, also referred to as] a personality
    disorder not otherwise specified.” Kormondy had “deficits” in relating to “other
    human beings [and] in [his] ability to control . . . impulses”; he was “very
    impulsive.” The “two major variables associated with [Kormondy’s] personality
    disorder [were his] heredity . . . and environmental experiences,” which included,
    more specifically, his negative “role models,” parents’ “rejection,” and “childhood
    trauma.”
    Elaine was at the center of these two major variables, heredity and
    environmental experience. As Dr. Larson noted, “[h]er father was an alcoholic
    truck driver and he would go off on long trips [and when] he’d come back, he
    would . . . beat her mother and sometimes beat her and the other kids.” “As she
    got older, he began sexually abusing her.” In Dr. Larson’s opinion, Elaine’s
    “psychological history was very important in how she conducted parenting” and,
    accordingly, in the creation of Kormondy’s environmental experience. She came
    from “a very dysfunctional family” and she “gets involved in marriages where
    she’s abused [and] there is alcoholism.” “She keeps hooking up with . . . losers.”
    “[M]arried twice, divorced, [she] went back to her first husband who had already
    20
    Case: 11-15001   Date Filed: 07/31/2012   Page: 21 of 90
    been abusive to her [and later] gets involved with a man who’s already married
    . . . , Shane’s father.” Kormondy “didn’t know who his father was”; he was “born
    without a father into an impoverished situation. His mother, on public assistance,
    “sends him [to live] with an aunt,” so “[t]he bond with his mother gets broken at
    six months.”
    On cross-examination by Edgar, Dr. Larson agreed that the psychological
    testing revealed that Kormondy was “potentially a very violent person[,] . . . a very
    bitter, unhappy person who tend[ed] to be abusive of those around him that are
    close to him,” and someone who would have “difficulty sympathizing with the
    victim.”
    Edgar had Dr. Larson recall some of the specifics of Kormondy’s previous
    criminal behavior. At an early age, Kormondy escaped from the DART program.
    He started using crack cocaine at age fourteen. He used “a range of substances
    . . . . [H]is mother caught him huffing gasoline [and using] alcohol [and]
    marijuana.” Soon, he was arrested for juvenile violations, for example, “battery on
    other people, thefts, [and] criminal mischief,” which led to “Community Control,”
    a form of house arrest. Kormondy violated house arrest by engaging in a “spree of
    burglaries and crimes” which resulted in him being “placed in the restitution
    center[,] . . . a resident treatment program.” After another crime spree, more
    21
    Case: 11-15001   Date Filed: 07/31/2012   Page: 22 of 90
    burglaries and thefts, Kormondy was sent to prison. According to his wife and his
    mother, “he vowed to go off drugs after he had been incarcerated,” and attended
    some “Narcotics Anonymous” meetings without success.
    Kormondy’s criminal activity continued after he was arrested for the
    McAdams murder and taken into custody; he was awaiting a charge for
    “homosexual rape” at the Santa Rosa County jail. Dr. Larson opined that he
    “would expect” that a person with the “kind of personality disorder” Kormondy
    possessed would engage in the criminal behavior the prosecutor cited in his
    questioning.
    Davis complemented Dr. Larson’s testimony with the testimony of a
    pharmacologist, Robert Markowitz, and a physician, Donald G. Morton, M.D.
    Markowitz, whose speciality was psychopharmacology, a subspeciality of
    pharmacology concerned with drugs that affect behavior, testified in the abstract
    as to the character traits inevitably exhibited by a person addicted to drugs,
    particularly alcohol and cocaine. The traits he described were the same traits
    Kormondy had been exhibiting prior to his arrest for the McAdams murder.
    Dr. Morton, a physician specializing in pathology and diagnostic medicine,
    had been devoting, since 1982, his “full medical energies toward treating the
    addict and the alcoholic.” The Defense employed him to evaluate Kormondy. He
    22
    Case: 11-15001     Date Filed: 07/31/2012    Page: 23 of 90
    interviewed Kormondy, who told him that he had been using alcohol and crack
    cocaine since he was thirteen. He also interviewed Kormondy’s sister, Laura, and
    his brother, Vernon; read depositions taken in the case; and reviewed Kormondy’s
    records in the Oklahoma and Escambia County school systems. Dr. Morton’s
    diagnosis was that Kormondy “is addicted to cocaine and alcohol [and] that he is
    poly-addicted to several other drugs that he’s experimented with in the past.”
    Kormondy inherited the “susceptibility to chemical disease” and was suffering
    from “antisocial personality disorder.”
    Davis’s last witness was Kevin Timothy Beck, an attorney. Beck had
    represented Buffkin at his trial. He said that the State offered Buffkin a life
    sentence (after the jury returned a verdict, but before it was published) in exchange
    for a plea of guilty to first degree murder because the State was convinced that
    Buffkin was not the trigger man and it wanted Buffkin to testify against Hazen at
    Hazen’s trial. On cross-examination, and over Davis’s objection, Beck stated that
    Buffkin, on deposition, said that “Kormondy told him, while in the jail, that if he
    ever got out, he would in fact kill William Long and Cecilia McAdams.”
    The Defense rested following Beck’s testimony. The State put on no
    rebuttal. In closing argument, Edgar argued that the guilt phase evidence
    23
    Case: 11-15001    Date Filed: 07/31/2012   Page: 24 of 90
    established five aggravating circumstances, that they outweighed the Defense’s
    mitigating evidence, and that the jury should recommend a death sentence.
    Davis, in closing, urged the jury to recommend life imprisonment for two
    reasons. First, it would be “fundamentally unfair” for Buffkin, who was, in
    Davis’s words, the “ring leader,” to receive a life sentence and Kormondy be
    sentenced to death. Second, Kormondy was the product of an impoverished
    environment. He was born to a mother who lacked parenting skills and a father
    who rejected him at birth and later denied paternity, a mother who married
    alcoholics, who abused her and her children, and a mother who had a violent
    temper. In counsel’s words, “she was a mean woman.” Davis recognized that
    many people overcome poverty, the absence of a parent, the absence
    of love and they grow up; but nevertheless, they grow up in a
    neighborhood where they develop life-long friends outside of the
    family. . . . There are safe places to go. There are normal people to
    be around. . . . They learn how to live properly in the world from
    people outside of the family. Not Shane. He was never in any one
    place long enough to develop those friendships. He was moved
    around like a piece of baggage, . . . ten times by the age of 13. He
    never had this sense of belonging anywhere, no safe place in his
    home, no safe place in the community.
    And to make matters worse, he was “born with the disease of addiction.” He
    inherited the susceptibility to chemical disease. He was incapable of leaving drugs
    and alcohol alone. Davis urged the jury to take all of these things into account.
    24
    Case: 11-15001    Date Filed: 07/31/2012    Page: 25 of 90
    They could not justify Kormondy’s behavior, but they could justify a
    recommendation of life imprisonment.
    On July 9, 1994, after deliberating for four hours, the jury returned its
    verdict. By a vote of eight to four, it recommended that the court sentence
    Kormondy to death.
    C.
    Judge Kuder scheduled Kormondy’s sentencing for October 7, 1994, and
    ordered the State’s Probation and Parole Services to prepare and submit to the
    court and the parties a Presentence Investigation Report. The Report, dated
    September 16, 1994, contained under the heading “Socioeconomic Status” an
    “Alcohol/Substance Abuse” section, which his mother verified. Under the
    “Alcohol” subheading, the report recited that Kormondy had “been drinking since
    he was a teenager. . . . [and] ha[d] [a]ttended Cordova Counseling for alcohol
    treatment.” Under the “Drugs” subheading, the report stated that Kormondy “used
    LSD[ and,] when he was a teenager[,] he used cocaine three (3) or four (4) times a
    week.” As “Comments,” the report recited: “The defendant stated that during the
    night of the crime he had smoked about 4 or 5 crack cocaine rocks, he had been
    drinking all day[,] and was high on cocaine and alcohol.”
    25
    Case: 11-15001        Date Filed: 07/31/2012        Page: 26 of 90
    The Report set out Kormondy’s juvenile and adult criminal histories under
    the heading “Prior Record (Juvenile/Adult History).” The “Summary” of
    Kormondy’s juvenile record indicated that he had been placed in “Juvenile
    Probation and After Care” and had “completed the placement” fourteen times.
    The “Summary” of Kormondy’s adult record indicated that he had been placed on
    “[p]robation” four times and that probation had been “[r]evoked” three times. He
    had been sent to “[p]rison” three times and, on one occasion, had “[c]ompleted”
    parole.
    Kormondy’s adult record was broken down into a listing of each offense
    Kormondy had committed and the ultimate disposition. Several offenses occurred
    in 1990, on January 17, February 7, March 19, and May 14; others occurred in
    1991, on February 2, March 12, and April 14.13 One occurred after he had been
    13
    The Report listed these offenses by arrest date, arresting authority, offense, and
    disposition, as follows:
    Date        Place     Offense           Disposition
    1/17/90     ECSO      Theft, Grand      DKT #90-0603, 5/16/90; pled nolo contendere as
    Theft Auto,       charged, adjudication of guilt withheld, community
    Burglary          control for 12 months under CT.’s 1 & 2, each count
    Structure         concurrent, followed by 2 years probation with special
    Dwelling, Petit   conditions to make restitution as determined by
    Theft, VOCC       probation and parole in all counts. Probation 6 months
    under CT.’s 3 & 4, each count concurrent and
    concurrent with 1 & 2, this case concurrent with DKT
    #89-6828 and merged for cost.
    26
    Case: 11-15001       Date Filed: 07/31/2012      Page: 27 of 90
    2/7/90    ECSO   Trespass          DKT#90-14350, 11/16/90; pled nolo contendere as
    Structure         charged, adj. Guilty. 6 months probation. COS waived
    Conveyance        while in restitution center, CJ 30 days suspended upon
    condition completed time and restitution center.
    2/7/90    ECSO   Theft, Grand      DKT #90-0604, 5/16/90; pled nolo contendere as
    Theft Auto,       charged, adjudication of guilty W/H, community
    Battery           control for 12 months under CT. 1 followed by 2 years
    General,          probation with special conditions to make restitution in
    VOCC              all counts as determined by probation and parole.
    Probation 6 months under CT.’s 2 & 3, each count
    concurrent with DKT #98-6228 and merged for cost.
    3/19/90   ECSO   Burglary          DKT #89-6828, 5/16/91; pled nolo contendere as
    Structure         charged, adjudication of guilt w/h placed on
    Dwelling,         community control for 12 months, each count
    Grand Theft       concurrent followed by 2 years probation, make
    $300 <            restitution of $1,211.58 as directed by Supervisor and
    $20,000           pay $284.50 Cost.
    5/14/90   ECSO   Grand Theft       DKT #90-1325: 5/16/90, nol processed CT.’s 6 & 7,
    Auto, Criminal    pled nolo contendere to CT/ 1, 2, & 3 as charged. Pled
    Mischief >        nolo contendere to CT. 4 & 5 as charged. Adjudication
    “$1,00,” Grand    of guilty W/H, community control for 12 moths under
    Theft Auto,       CT.’s 1, 2, 3 & 5, each count concurrent followed by 2
    Resisting         years probation and on condition make restitution in all
    Officer           counts as determined by Probation & Parole . Probation
    W/Violence,       6 months under CT. 4, concurrent with CT.’s 1, 2, 3 &
    Burglary          5, this case to run concurrent with DKT #89-6828 and
    Unoccupied        merged for cost.
    Structure
    Conveyance
    (3) counts
    2/12/91   ECSO   Burglary          5/21/91, adjudicated guilty of SP 3 years each count
    Occupied          concurrent and concurrent with 89-6828 and with
    Structure         credit for 71 days.
    Conveyance,
    Grand Theft             27
    $300 <
    $20,000
    Case: 11-15001         Date Filed: 07/31/2012         Page: 28 of 90
    arrested and incarcerated in the Escambia County jail for the McAdams murder:
    on February 18, 1994, he was charged with “Possession of [a] Controlled
    Substance” and “Possession of Drug Paraphernalia” and was to be tried for the
    offense on September 26, 1994. As indicated in note 12, supra, the 1990 and 1991
    offenses included “Theft,” “Grand Theft Auto,” “Burglary Structure Dwelling,”
    “Burglary Occupied Structure,” “Battery,” and “Resisting Officer [with]
    Violence.”
    Kormondy was sentenced on October 7, 1994. After hearing from the
    parties and affording Kormondy his right of allocution, Judge Kuder found the
    following statutory aggravating factors:14
    3/12/91       ECSO      VOCC               DKT #89-6828, 5/21/91; pled nolo contendere to
    VOCC, found guilty of VOCC. Community Control
    revoked, adjudicated guilty as charged. SP 3 years each
    count concurrent with credit for 133 days.
    11/14/91      ECSO      VOP                DKT #90-14350, 1/9/92; found guilty of VOP,
    probation terminated, case terminated.
    2/18/94       ECSO      Possession of      DKT #94-0898: pending, set for jury trial 9/26/94.
    Controlled
    Substance,
    Possession of
    Drug
    Paraphernalia,
    Enter Control
    Substance Into
    Jail
    14
    See 
    Fla. Stat. § 921.141
    (1)(5)(b), (d), (e), (f), and (i), and also supra note 10.
    28
    Case: 11-15001    Date Filed: 07/31/2012   Page: 29 of 90
    (1) the defendant was previously convicted of a felony involving the
    threat of violence to the person; (2) the capital felony was committed
    while the defendant was engaged or was an accomplice in the
    commission of or an attempt to commit or flight after committing or
    attempting to commit a burglary; (3) the capital felony was committed
    for the purpose of avoiding or preventing a lawful arrest or effecting
    an escape from custody; (4) the capital felony was committed for
    pecuniary gain; and (5) the capital felony was a homicide and was
    committed in a cold, calculated and premeditated manner without any
    pretense of moral or legal justification.
    Kormondy v. State (Kormondy I), 
    703 So. 2d 454
    , 457 (Fla. 1997) (per curiam).
    Judge Kuder then considered the mitigating evidence in the record, finding
    nothing to support any of the statutory mitigating circumstances. He next
    considered the non-statutory mitigating factors. The Florida Supreme Court
    described what Judge Kuder found and the weight he assigned to Kormondy’s
    evidence in mitigation:
    As to nonstatutory mitigation, the trial judge considered Kormondy’s
    childhood deprivations. He found that “the deprivation, trauma, and
    loss of paternal comfort and companionship suffered during
    Kormondy’s early years are reasonably established by the evidence as
    nonstatutory mitigating factors. The Court gives these factors
    moderate weight.” This statement must be tempered by the judge’s
    finding that “[t]he Court is well satisfied that Kormondy is more a
    product of his failure to choose a positive and productive lifestyle
    than a victim of family dysfunction.” Kormondy also asked the trial
    judge to consider his drug addiction as nonstatutory mitigation. The
    judge found that “[a]lthough the fact of Kormondy’s drug addiction is
    established by the evidence, the Court finds that his addiction is not
    reasonably established as a non-statutory mitigating factor and gives
    it no weight.” The trial court also gave no weight to Kormondy’s
    29
    Case: 11-15001       Date Filed: 07/31/2012      Page: 30 of 90
    learning disability and lack of education. Moderate weight was given
    to the fact that Kormondy was a good employee in the past. The trial
    court further gave little weight to the fact that Kormondy was
    drinking alcoholic beverages before the crimes were committed.
    Little weight was also given to the fact that Kormondy was
    well-behaved at trial. No weight was given to either the fact that
    Buffkin received disparate treatment or that Kormondy has a wife and
    child. As to the former consideration, the trial judge found that the
    “evidence establishes beyond and to the exclusion of every
    reasonable doubt that Gary McAdams was in fact killed by defendant
    Kormondy.” Further, no weight was given to Kormondy’s suggestion
    that he cooperated with law enforcement. In denying this suggestion,
    the trial judge wrote, “It is also significant that when he was
    subpoenaed by the State to testify against co-defendant Hazen he
    refused to do so even after having been given use immunity.”
    Finally, the trial judge gave moderate weight to the fact that
    Kormondy has a personality disorder.
    
    Id.
     at 457–58 (alterations in original). After weighing all of the sentencing factors,
    Judge Kuder sentenced Kormondy to death.15
    D.
    Kormondy appealed his convictions and death sentence to the Florida
    Supreme Court. The Supreme Court affirmed his convictions, but vacated his
    death sentence and remanded the case “for a new penalty-phase proceeding before
    15
    As for Kormondy’s “convictions for three counts of armed sexual battery, one count of
    burglary of a dwelling with an assault and an intent to commit a theft, and one count of armed
    robbery[,] . . . Kormondy was sentenced to a [consecutive] life sentence for each . . .
    conviction[].” Kormondy v. State (Kormondy I), 
    703 So. 2d 454
    , 463 (Fla. 1997) (per curiam).
    30
    Case: 11-15001        Date Filed: 07/31/2012       Page: 31 of 90
    a new jury.” Kormondy I, 
    703 So. 2d at 465
    .16 The court did so because it found
    reversible error in the trial court’s admission, over Kormondy’s objection, of
    Beck’s statement that Buffkin, on deposition, said that “Kormondy had told him,
    while in jail, that if he ever got out, he would in fact kill William Long and Cecilia
    McAdams.” 
    Id.
     at 461–62, 463. The “testimony that Kormondy said he would
    kill again” amounted to an “impermissible nonstatutory aggravation.” 
    Id. at 463
    .17
    16
    In affirming Kormondy’s murder conviction, the Supreme Court held that the evidence
    (in the guilt phase) was insufficient to establish first-degree premeditated murder, see 
    Fla. Stat. § 782.04
    (1)(a)1, because “the State failed, with its evidence, to exclude the reasonable possibility
    that the shooting was accidental.” Kormondy I, 
    703 So. 2d at 459
    . The court let the murder
    conviction stand, however, because “the record clearly support[ed] a conviction for first-degree
    felony murder.” 
    Id. at 460
    ; see also 
    Fla. Stat. § 782.04
    (1)(a)2. None of the issues Kormondy
    raised in challenging his convictions is pertinent here.
    17
    The Supreme Court went on to say that,
    [f]or this evidence to be admissible at the penalty-phase proceeding, it has to be
    directly related to a specific statutory aggravating factor. Otherwise, our turning
    of a blind eye to the flagrant use of nonstatutory aggravation jeopardizes the very
    constitutionality of our death penalty statute. Finally, we are unable to say that
    this evidence about Kormondy’s desire to commit future killings, when presented
    to the jury by an attorney, was harmless beyond a reasonable doubt.
    Kormondy I, 
    703 So. 2d at 463
    .
    31
    Case: 11-15001     Date Filed: 07/31/2012   Page: 32 of 90
    II.
    A.
    The Circuit Court received the Kormondy I mandate on January 26, 1998.
    Davis, who had represented Kormondy during the penalty phase of the case in
    1994, commenced preparation for the retrial of that phase.
    On April 16, 1998, Kormondy moved Judge Kuder to discharge Stitt and
    Davis on the ground that the Public Defender’s Office was too busy to give his
    case the attention it deserved and to appoint substitute counsel from the private
    bar. Alternatively, he wanted Stitt removed because (1) she told him prior to trial
    in July 1994, that the jury would likely “find him guilty of murder” and “failed to
    keep and maintain his trust” and (2) he was going to file a claim that she had
    rendered “ineffective assistance” during the guilt phase of the case in 1994, which
    would create a conflict of interest.
    Judge Kuder held a hearing on Kormondy’s motion on May 14, 1998.
    Kormondy was present along with Stitt and Davis. After hearing what Kormondy
    had to say in support of his motion and the attorneys’ responses, the judge found
    no evidence of ineffective assistance or lack of resources in the attorneys’
    preparation and presentation of Kormondy’s defense at trial. He denied the
    motion because Kormondy presented only bare assertions.
    32
    Case: 11-15001       Date Filed: 07/31/2012       Page: 33 of 90
    On a date not revealed by the record, Judge Kuder scheduled the retrial of
    the penalty phase for July 7, 1998. Prior to that date, the trial date was moved to
    July 27, 1998. The trial date was later moved to September 22, 1998, and again to
    November 16, 1998.18
    On October 28, Kormondy, proceeding pro se, moved Judge Kuder to
    recuse, to discharge Stitt and Davis as his attorneys, and to appoint substitute
    counsel from the private bar. Stitt prepared the motion for Kormonday after
    visiting him in jail the previous Monday, October 26, and Davis presented the
    motion to the court on Kormondy’s behalf. Kormondy’s grounds for moving for
    Judge Kuder’s recusal were two-fold: (1) Gary McAdams had worked for First
    Union Bank as a loan officer, and Judge Kuder had done business with him; and
    (2) Judge Kuder’s wife was employed by the State Attorney, whose office was
    prosecuting the case. For these reasons, Kormondy felt that, unless Judge Kuder
    recused, he could not receive a fair trial.
    Kormondy’s grounds for seeking the discharge of Stitt and Davis and the
    entire Public Defender’s Office were: (1) he lacked confidence in the Public
    Defender’s Office; and (2) Stitt had been a member of the same high school class
    as Gary McAdams, from 1969 to 1972 (their graduation year), and had known
    18
    The record does not indicate the reason(s) for the continuances.
    33
    Case: 11-15001       Date Filed: 07/31/2012       Page: 34 of 90
    McAdams though class activities and school events during that time. For this sole
    reason, she had, in Kormondy’s mind, a conflict of interest.
    Judge Kuder held a hearing on Kormondy’s motions the same day, October
    28. Present were Edgar, Stitt, Davis, and Kormondy. Davis presented the
    motions; Stitt and Kormondy testified. Stitt testified that at a pretrial conference
    long before the case went to trial in July 1994, she informed Judge Kuder and
    Edgar that she and Gary McAdams had been high school classmates some twenty
    years before, that they had been nothing more than classmates, that she had never
    represented him or his family, that she had informed Kormondy of the classmate
    relationship, and that Kormondy had not been concerned. The first time
    Kormondy told her that the relationship concerned him was when she visited him
    at the jail on Monday, October 26, 1998.19 As the result of her conversation with
    him at the jail, she concluded that Kormondy no longer felt “trustful” of her or the
    Public Defender’s Office, which caused her “great problems going forward with
    the representation.” She therefore agreed with Kormondy that she should prepare
    19
    At the May 14, 1998 hearing on his motion for the appointment of substitute counsel to
    replace Stitt and Davis, Kormondy did not raise the high school relationship issue as a reason for
    providing him with substitute counsel; rather, his complaint was that he had lost confidence in
    the Public Defender’s Office.
    34
    Case: 11-15001       Date Filed: 07/31/2012        Page: 35 of 90
    a motion calling for her and Davis’s discharge and the appointment of a lawyer
    from the private sector of the bar.
    At the conclusion of the hearing, Judge Kuder, ruling from the bench,
    granted Kormondy’s motion, discharged Stitt and Davis, and appointed Spiro
    Kypreos, a private practitioner, to represent Kormondy. Judge Kuder then recused
    and was replaced by Circuit Judge Joseph Q. Tarbuck. The trial, which had been
    scheduled to begin on November 16, 1998, was rescheduled for April 5, 1999.
    On November 13, 1998, Judge Tarbuck relieved Kypreos of his
    appointment (for reasons not in the record) and appointed James Jenkins, a
    Pensacola lawyer, in his place. Jenkins was unable to take the appointment, and
    Raymond Arnold, also a Pensacola lawyer, was appointed on December 7, 1998.
    B.
    On February 15, 1999, Arnold filed with the court a motion to preclude the
    State from seeking the death penalty.20 Arnold based the motion on the evidence
    presented to the jury during the guilt phase of the trial. He argued that such
    evidence was insufficient “to show that Kormondy intended to kill the decedent.
    20
    Also on February 15, 1999, Arnold filed a motion to require the State to designate the
    aggravating circumstances on which it was seeking the death penalty and to allow the defendant
    to depose every witness the State previously had identified. Within that motion, Arnold
    contended that the State should be limited to presentation of “only that guilt phase evidence
    necessary to prove aggravating circumstances.” The record does not indicate whether the court
    ruled on this motion.
    35
    Case: 11-15001       Date Filed: 07/31/2012       Page: 36 of 90
    There exists no evidence to show other than that the firing of the gun was
    accidental. Accordingly, this case does not meet the culpability requirement of
    either Enmund or Tison in a felony-murder case.”21 On March 1, 1999, while that
    motion was pending, Arnold moved the court for a change of venue, arguing that a
    fair trial could not be obtained in Pensacola due primarily to the publicity the case
    had engendered following the McAdams murder. Two weeks later, Arnold filed a
    “Notice of Intent Not to Present Evidence of Mitigating Circumstances.” The
    notice “announce[d] that [Kormondy would] not present any evidence pertaining
    to mitigating circumstances.” He further requested that the State “be precluded
    from presenting any evidence pertaining to Defendant’s prior mental, physical, or
    psychological condition [or] evidence of any prior criminal history or collateral
    conduct or offenses.”
    Judge Tarbuck heard these motions on March 23, 1999. Addressing the
    motion to preclude the State from seeking the death penalty, Arnold argued that
    the State should be barred from seeking the death penalty because a death sentence
    would be disproportional, given that Buffkin and Hazen, who were as culpable as
    21
    In Enmund v. Florida, 
    458 U.S. 782
    , 
    102 S. Ct. 3368
    , 
    73 L. Ed. 2d 1140
     (1982) and
    Tison v. Arizona, 
    481 U.S. 137
    , 
    107 S. Ct. 1676
    , 
    95 L. Ed. 2d 127
     (1987), the Court considered
    the propriety, under the Eighth Amendment’s ban on cruel and unusual punishment, of the death
    penalty where the defendant neither took life, attempted to take life, nor intended to take life.
    36
    Case: 11-15001     Date Filed: 07/31/2012    Page: 37 of 90
    Kormondy, were sentenced to life imprisonment. Judge Tarbuck denied the
    motion. Next, he deferred his ruling on Arnold’s motion for change of venue until
    trial; he would grant the motion if pretrial publicity precluded the selection of an
    unbiased jury. At this point in the hearing, Arnold informed the court that he
    could not be ready for trial on April 5 and moved for a continuance. He reminded
    the court that to establish the aggravating circumstances necessary to warrant
    imposition of a death sentence, the State would be calling most, if not all, of the
    witnesses who testified for the State at the guilt phase of the trial, and he would
    need to know what they would be saying—especially with respect to manner in
    which the killing occurred. And since he did not intend to present any mitigating
    evidence, Kormondy’s case would depend on the quality of his cross-examination
    of the State’s witnesses.
    Judge Tarbuck granted the requested continuance, set the trial for May 3,
    1999, and informed the parties that he would entertain on April 5 any matters that
    should be considered prior to jury selection. One matter that would have to be
    addressed would be whether Kormondy was willing to waive his right to present
    mitigating evidence. Edgar and Arnold agreed that, before the trial commenced,
    the court would have to address Kormondy in person and, in accordance with the
    Florida Supreme Court’s instructions in Koon v. Dugger, 
    619 So. 2d 246
    , 249–50
    37
    Case: 11-15001         Date Filed: 07/31/2012        Page: 38 of 90
    (Fla. 1993) (per curiam), determine whether he understood that he had the right to
    present mitigating evidence, whether he understood the sentence the jury might
    recommend if he chose not to exercise that right, and whether he was waiving the
    right knowingly and voluntarily.22 Before the hearing ended, Arnold announced
    that “[a]t this time, I’ll withdraw the notice of intent not to present evidence of
    mitigating circumstances.” He then added that “I may have to refile the [notice],
    but . . . have it heard during April.”
    22
    In Koon v. Dugger, Raymond Koon, a death row inmate, appealed the denial of his
    post-conviction claim, presented pursuant to Fla. R. Crim. P. 3.850, that his attorney rendered
    ineffective assistance of counsel in the penalty phase of his trial because he “failed to investigate
    and present significant mental health mitigation that would have resulted in a life
    recommendation from the jury.” 
    619 So. 2d 246
    , 249 (Fla. 1993) (per curiam). Specifically,
    “counsel failed to develop and present evidence of his impoverished childhood, his military
    service, his alcoholism, and other nonstatutory mitigation.” 
    Id.
     The Supreme Court affirmed the
    denial of Koon’s claim because it was unrebutted that Koon prohibited counsel from presenting
    any mitigating evidence. 
    Id.
     “Koon instructed him not to do so.” 
    Id.
     As counsel testified,
    “Koon’s position all along was that he did not want to spend the rest of his life in prison.
    [Counsel] testified that he was afraid that if he attempted to present witnesses against Koon’s
    wishes, Koon would make a scene in front of the jury. 
    Id.
    In affirming the denial of Rule 3.850 relief, the Supreme Court, using its supervisory
    power, instructed Florida’s trial courts as to what they should do when faced with a situation in
    which a defense attorney foregoes the presentation of mitigating evidence pursuant to the client’s
    instructions.
    [W]e establish the following prospective rule to be applied in such a situation.
    When a defendant, against his counsel’s advice, refuses to permit the presentation
    of mitigating evidence in the penalty phase, counsel must inform the court on the
    record of the defendant’s decision. Counsel must indicate whether, based on his
    investigation, he reasonably believes there to be mitigating evidence that could be
    presented and what that evidence would be. The court should then require the
    defendant to confirm on the record that his counsel has discussed these matters
    with him, and despite counsel’s recommendation, he wishes to waive presentation
    of penalty phase evidence.
    
    Id. at 250
    .
    38
    Case: 11-15001   Date Filed: 07/31/2012   Page: 39 of 90
    On April 6, 1999, Arnold moved the court in limine to enter an order
    “prohibiting the State from ‘doubling up’ alleged aggravating circumstances,
    either in testimony or argument in the penalty phase of trial.” In the previous
    penalty phase, in 1994, the State had argued that the evidence established five of
    the aggravating circumstances listed in 
    Fla. Stat. § 921.141
    (1)(5)(b), (d), (e), (f)
    and (i).23 Arnold argued that to allow the State to assert that “the capital felony
    was committed during the course of a burglary, . . . to avoid arrest or to allow
    escape, and . . . for pecuniary gain . . . [would result] in doubling or tripling of
    aggravated circumstances.” Judge Tarbuck heard the motion on April 16, 1999.
    At the conclusion of the hearing, he ruled that the applicable aggravating
    circumstances would be determined depending on the evidence the State presented
    at trial.
    C.
    The penalty phase of the trial began on May 3, 1999, as scheduled. Prior to
    jury selection and in the absence of the venire, Arnold renewed his motion to
    preclude the State from seeking the death penalty. He argued that the Florida
    Supreme Court’s decision in Jackson v. State, applying the United States Supreme
    Court’s decisions in Enmund v. Florida and Tison v. Arizona, precluded the death
    23
    See supra note 10.
    39
    Case: 11-15001     Date Filed: 07/31/2012    Page: 40 of 90
    penalty because the case involved multiple defendants, Kormondy, Buffkin and
    Hazen, no eye witnesses, and nothing but circumstantial evidence. See Jackson v.
    State, 
    575 So. 2d 181
    , 193 (Fla. 1991) (“Enmund and Tison are not satisfied in [a]
    murder case with multiple defendants and no eyewitnesses where all evidence is
    circumstantial and the actual killer is not clearly identified[.]”). The court was not
    persuaded and denied Arnold’s motion.
    Following a brief recess to enable Arnold to confer with his client, the
    following took place before Judge Tarbuck:
    MR. ARNOLD: The defendant would announce to the State that he will not
    rely on the mitigator found at [
    Fla. Stat. § 921.141
    (6)(a)], that is no
    significant prior criminal activity or history. And I believe that should
    preclude the State from presenting evidence on prior record. Do you agree
    to that?
    MR. EDGAR: It depends on the manner in which the Defense conducts its
    case involving mitigation.
    MR. ARNOLD: Certainly.
    MR. EDGAR: But I will not preempt that by offering evidence initially,
    obviously.
    THE COURT: We will defer ruling on that until such time as the
    presentation of all evidence is concluded.
    MR. ARNOLD: The next one is the defendant would announce to the State .
    . . that it will not rely on the mitigator found at [
    Fla. Stat. § 921.141
    (6)(b)],
    which argues that the defendant was under the influence of extreme mental
    40
    Case: 11-15001     Date Filed: 07/31/2012    Page: 41 of 90
    or emotional disturbance. We will not argue or present evidence with
    regards to that mitigator.
    MR. EDGAR: I understand.
    MR. ARNOLD: The next is that the defendant will announce that it will not
    rely on the mitigator that the victim was a participant or consented to in any
    manner the offense or offenses. Next is that the defendant will announce to
    the State that it will not rely upon the mitigator indicating that the defendant
    had any lack of capacity to conform himself to the law.
    MR. EDGAR: I understand.
    MR. ARNOLD: Next, the defendant would announce to the State that it will
    not rely upon the mitigator dealing with family background, alcoholism or
    drug use or mental problems or abuse by parents. Did you get all of those?
    MR. EDGAR: I understand.
    MR. ARNOLD: Judge, I believe that the Court has to examine the
    defendant under [Koon v. Dugger] to make sure that he understands and
    acknowledges that I have discussed with him those announcements and that
    he agrees with them.
    THE COURT: Mr. Kormondy, have you heard what your lawyer just
    announced to the Court —
    THE DEFENDANT: Yes.
    THE COURT: — for the record?
    THE DEFENDANT: Yes.
    THE COURT: Do you agree that those, with what he has said?
    THE DEFENDANT: Yes, sir.
    41
    Case: 11-15001     Date Filed: 07/31/2012    Page: 42 of 90
    MR. EDGAR: Could the Court briefly, if I could suggest, that the defendant
    be asked that he understands that he had a right to present those matters that
    he presented [in the previous penalty phase], and even more if he choose or
    less and that those matters could be considered by a jury and might, in fact,
    be considered by a jury to outweigh possibly aggravating factors that could
    exist and, therefore, could result in jury recommendation of life, but that is a
    tactical choice by the defendant or strategic choice that I presume he’s
    made. If we could ask, with the advice and representation of counsel, if he’s
    fully discussed that matter with counsel and understands the consequences
    and effects of that?
    MR. ARNOLD: Judge, I would be pleased to ask the defendant those items
    and then have the Court examin[e] him with regard to each one, if you
    would like for me to do so?
    THE COURT: All right.
    MR. ARNOLD: Mr. Kormondy, have we discussed the fact that tactically it
    would be beneficial to you to announce to the State that you would not
    present evidence or testimony or argument dealing with the fact that you
    have no prior criminal history because, in fact, you do have a prior criminal
    history; is that correct?
    THE DEFENDANT: Yes.
    MR. ARNOLD: And do you understand that . . . the State, of course, could
    come back in and impeach us or impeach you if you so testified that you had
    no prior criminal history? We’ve discussed that?
    THE DEFENDANT: Yes.
    MR. ARNOLD: And you agree to the waiver of that particular mitigator?
    THE DEFENDANT: Right. Yes.
    MR. ARNOLD: The next matter is that during the guilt phase trial, there
    was testimony taken by the lawyers who represented you . . . dealing with
    42
    Case: 11-15001    Date Filed: 07/31/2012   Page: 43 of 90
    the fact that you may have previously been under some sort of extreme
    mental or emotional disturbance or that you may have been, if not addicted
    to, at least abusing crack cocaine and other drugs or alcohol and, in fact,
    there was testimony by a psychologist or psychiatrist with regards to those
    matters; and do you understand that those avenues of defense are available
    to you at this time?
    THE DEFENDANT: Yeah.
    MR. ARNOLD: And have we discussed those matters, and are you satisfied
    that it is not in your best interest to present those particular types of
    aggravators or mitigators in this case?
    THE DEFENDANT: Yes.
    MR. ARNOLD: The same thing goes with the mitigator that I announced to
    the Court and to the State dealing with your lack of capacity to conform to
    the laws of our state or to the laws of the United States. Do you understand
    that you have the right to present testimony that you simply don’t have the
    ability to follow the law, and because of some other pressing problem,
    mentally or emotionally or whatever, do you understand that?
    THE DEFENDANT: Yes.
    MR. ARNOLD: And we have discussed those and you have agreed to waive
    those as mitigators?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: And there was some testimony previously, and you have
    the availability of that testimony now to present testimony that you either
    had mental problems associated with your childhood upbringing or that you
    were either abused, and that doesn’t mean that you were—necessarily that
    you were beaten, it could mean that your were either beaten or sexually or
    mentally or any other way abused by parents or a figurehead or persons of
    authority over you. Do you understand that you still have that avenue of
    defense available to you at this time?
    43
    Case: 11-15001    Date Filed: 07/31/2012   Page: 44 of 90
    THE DEFENDANT: Yes.
    MR. ARNOLD: And we have discussed that avenue of defense and all of
    those various matters?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: And are you satisfied that it is in your best interest
    not to present testimony, evidence or argument pertaining to those
    mitigators?
    THE DEFENDANT: Yes.
    MR. ARNOLD: There was another mitigator that I mentioned and it had to
    do with whether or not the victim in this particular case, . . . Gary
    McAdams, in any way participated or consented to the offense and, of
    course, you’re not claiming that in any way . . . , are you?
    THE DEFENDANT: No.
    MR. ARNOLD: And you would waive that mitigator?
    THE DEFENDANT: Yes.
    MR. ARNOLD: Judge, I believe I’ve covered those mitigators. Are you
    satisfied, Mr. Edgar?
    MR. EDGAR: Yes, Your honor. I just wanted to make sure that they
    discussed it to the defendant’s satisfaction. I know Mr. Arnold is an
    experienced attorney and he’s fully capable of advising his clients. I just
    wanted to make sure that the defendant understood and that he had that
    opportunity and what effect that would have by not doing that, what effect it
    might possibly have, it could make a difference in this matter and that he
    should be aware of that for his own reasons and advice of counsel, he’s
    choosing not to do that.
    44
    Case: 11-15001     Date Filed: 07/31/2012   Page: 45 of 90
    THE COURT: Mr. Kormondy, you heard your lawyer announce to the
    Court the various mitigators that you’re waiving; have you discussed each
    of those at length with him and arrived at the conclusion that it would not be
    in your best interest to present those?
    THE DEFENDANT: Yes, sir.
    THE COURT: You’re satisfied that your lawyer has adequately represented
    you and represented things to you in regard to those mitigators so that you
    could make an intelligent decision with regard to not wanting the
    introduction of those into evidence?
    THE DEFENDANT: Yes, sir.
    THE COURT: Anything else?
    MR. ARNOLD: Those conclude mine.
    THE COURT: All right. We should have the cards momentarily and begin
    the jury selection process.
    A jury was empaneled by mid-day on May 3, 1999, and excused until the
    following morning. The trial began that morning with the attorneys’ opening
    statements. Edgar informed the jury that an earlier jury had found Kormondy
    guilty of the first degree murder of Gary McAdams, the sexual battery of Cecilia
    McAdams, burglary, and armed robbery, and then outlined the evidence that led to
    the jury’s verdicts—beginning with the assemblage of Kormondy, Buffkin, and
    Hazen at Kormondy’s Pensacola residence on July 10, 1993, and ending with the
    statements Kormondy gave the police following his arrest. That evidence, Edgar
    45
    Case: 11-15001     Date Filed: 07/31/2012   Page: 46 of 90
    submitted, would establish the aggravating circumstances necessary for the
    imposition of the death penalty and would be sufficient to overcome any
    mitigating evidence the defense might put forth.
    Arnold, in his opening statement, said there would be “testimony that it was
    not Kormondy who actually killed Mr. McAdams” and that the jury would hear
    “different testimony as to how he was killed and by whom.” The mitigating
    circumstances that would weigh against a jury recommendation of death and in
    favor of life imprisonment would be that there was “no intent to kill” Mr.
    McAdams; that Buffkin and Hazen, who were equally culpable, had received life
    sentences; and that without Kormondy’s cooperation with law enforcement,
    Buffkin and Hazen would not have been captured.
    The State called twenty witnesses; their testimony and the State’s exhibits
    established the facts that led to Kormondy’s conviction at the conclusion of the
    guilt phase of the trial in July 1994. After the last witness stepped down, Edgar
    announced that the State and the Defense, with Kormondy’s consent, had
    stipulated to the crimes of which Kormondy, Buffkin, and Hazen had been
    convicted, and that these “violent felonies” constituted “an aggravating factor.”
    With that stipulation, Edgar rested the State’s case.
    46
    Case: 11-15001    Date Filed: 07/31/2012   Page: 47 of 90
    The court then asked Arnold to call his first witness. After conferring with
    Kormondy, the following exchange occurred:
    MR. ARNOLD: Judge, at this time the Defense likewise rests, and I
    think that you need to inquire of the defendant out of the presence of
    the jury.
    THE COURT: Is there anything further that you wish to present in this case,
    Mr. Kormondy?
    THE DEFENDANT: No, Sir.
    THE COURT: Have you discussed all aspects of the presentation of
    evidence in your behalf with your lawyer?
    THE DEFENDANT: Yes, sir.
    MR. EDGAR: I have some matters to inquire into. I’d request that the jury
    be excused briefly.
    THE COURT: Ladies and gentlemen of the jury, please retire.
    (Jury out.)
    MR. EDGAR: Your Honor, previously [during the penalty phase of the trial
    in 1994] the defendant introduced evidence and submitted arguments to the
    jury that recommended death and to the Court that sentenced him,
    concerning his background, his family background, his substance abuse,
    some mental/emotional disturbances, his childhood deprivations and other
    matters. That did not have apparently as much effect at that time as I guess
    as it was intended. However, given that there are less aggravators being
    submitted by the State at this time as a result of the [Kormondy I] opinion, I
    wanted just the Court to advise him that if it didn’t work before, it doesn’t
    mean that it won’t work now. And that he’s to be advised that he could still
    do that, that he’s free to do that, and if this is what he wants to do.
    47
    Case: 11-15001    Date Filed: 07/31/2012   Page: 48 of 90
    Otherwise, that he’s discussed that with counsel, he’s satisfied and knows
    the consequences and he nonetheless wishes to proceed on this course.
    In other words, I just want to make sure the record is clear that
    he knowingly and voluntarily and intelligently makes this election so
    that later if this doesn’t go the way that he would prefer, then we
    wouldn’t be back here arguing that well, I wasn’t told exactly what
    the situation was. That’s what I wanted to tell the Court just to
    address in a little more detail.
    MR. ARNOLD: Judge, I’d be pleased to examine him, if you’d like for me
    to. Then you may help —
    THE COURT: All right.
    MR. ARNOLD: Mr. Kormondy, have I discussed with you the statutory
    mitigating circumstance, that the defendant has no significant history of a
    prior criminal activity and we have previously announced that we would not
    deal with that and the State likewise agreed they would not deal with it?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: Did we do that as a part of the strategy proceeding in this
    case?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: With regards to the second statutory mitigating
    circumstances, the capital felony was committed while the defendant was
    under the influence of extreme mental or emotional disturbance. Did I
    discuss with you any – not only medically diagnosed problems, but any
    problems you may have thought about dealing with mental or emotional
    disturbance, and did we rule out any evidence or argument pertaining to
    whether or not you were under the influence of extreme mental or emotional
    disturbance?
    THE DEFENDANT: Yes, sir.
    48
    Case: 11-15001     Date Filed: 07/31/2012    Page: 49 of 90
    MR. ARNOLD: And did we agree that as part of our strategy that it may be
    in your best interest not to present that testimony so that we did not open the
    door for the State to put evidence in on some other matters?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: With regards to the statutory mitigator that the victim was a
    participant in the defendant’s conduct or consented to the act, we have
    agreed that that was not true and that we would not use it as a statutory
    mitigator; is that correct?
    THE DEFENDANT: Right.
    MR. ARNOLD: With regards to the mitigator that the defendant was an
    accomplice in the capital felony committed by another person and his
    participation was relatively minor, we are going to argue that. May not
    request it as a jury instruction, but I may argue that if the evidence – if I
    believe that the evidence is present?
    THE DEFENDANT: Right.
    MR. ARNOLD: Agree?
    THE DEFENDANT: Right.
    MR. ARNOLD: With regards to the next statutory mitigator, the defendant
    acted under the extreme influence, dominion, duress, or control of another.
    Have we discussed that and agreed that that is not the case and that we
    would not present any argument or evidence pertaining to that mitigator?
    THE DEFENDANT: Right.
    MR. ARNOLD: Okay. With regards to the next mitigator, the capacity of
    the defendant to appreciate the criminality of his conduct or to conform his
    conduct to the requirements of the law was substantially impaired. Again, in
    conjunction with the emotional disturbance and that sort of thing, have we
    discussed that in detail and agreed that we would not present any evidence
    49
    Case: 11-15001     Date Filed: 07/31/2012   Page: 50 of 90
    or attempt to put any evidence or argument pertaining to that mitigator into
    the record?
    THE DEFENDANT: Yes.
    MR. ARNOLD: And that likewise is in your best interest not to do so?
    THE DEFENDANT: Right
    MR. ARNOLD: The age of the defendant at the time of the crime. If it’s
    requested, the Judge always usually puts that into the jury instructions,
    although we’ve not really brought that up as an issue; is that correct?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: There are a number of nonstatutory mitigators, and under
    no pretense do I attempt to tell you each and every one of them, okay?
    THE DEFENDANT: Okay.
    MR. ARNOLD: Because they can be most anything that someone can think
    of. Let me cover a few, if I may. With regards to family background or
    employment background or military service, we’ve not presented any
    evidence on those matters, correct?
    THE DEFENDANT: Correct.
    MR. ARNOLD: Do you desire to put in any evidence or argument
    pertaining to any of those three items?
    THE DEFENDANT: No.
    MR. ARNOLD: Okay. With regards to mental problems, which do not reach
    the level of extreme mental anguish or mental emotional defect, do you wish
    to present any testimony, argument or evidence pertaining to mental
    problems of any nature whatever?
    50
    Case: 11-15001    Date Filed: 07/31/2012   Page: 51 of 90
    THE DEFENDANT: No.
    MR. ARNOLD: And we’ve discussed that fully and completely?
    THE DEFENDANT: Right.
    MR. ARNOLD: With regards to abuse of the defendant by parents, either
    physically, mentally, or sexually, we have agreed that there would be no
    testimony, evidence or argument pertaining to that nonstatutory mitigator; is
    that correct?
    THE DEFENDANT: Yes, sir.
    MR. ARNOLD: And we’ve discussed that in detail?
    THE DEFENDANT: Right.
    MR. ARNOLD: I believe that previously there was some testimony dealing
    with that and you discussed that with me and asked me not to present any
    evidence to the court, did you not?
    THE DEFENDANT: Right.
    MR. ARNOLD: Okay. With regards to contribution to the community or
    society or charitable or humanitarian acts or deeds, we have no evidence
    pertaining to those, correct?
    THE DEFENDANT: Correct.
    MR. ARNOLD: With regards to the quality of being a caring parent, I
    understand that you have a child but we’ve not presented any evidence
    dealing with that, correct?
    THE DEFENDANT: Correct.
    MR. ARNOLD: And it’s not your desire to present any evidence dealing
    with those items?
    51
    Case: 11-15001     Date Filed: 07/31/2012   Page: 52 of 90
    THE DEFENDANT: (Shakes head negatively.)
    MR. ARNOLD: The same thing goes with regular church attendance or
    religious devotion, such as that?
    THE DEFENDANT: Correct.
    MR. ARNOLD: We’ve talked about it, discussed it, you’ve agreed not to
    present it?
    I have discussed with the State Attorney and we will present to
    the Judge shortly jury instructions which include the nonstatutory
    mitigators. One, being that you cooperated fully with law
    enforcement after your arrest; another being the two co-defendants
    are serving life in prison; another being you had no intent that Gary
    McAdams die as a result of these crimes that we talked about; and
    fourth, I’m asking the Court to present and be that you exhibited good
    behavior and good conduct during the course of this trial.
    Are there any other nonstatutory mitigators that you think I
    should present to the Court?
    THE DEFENDANT: (Shakes head negatively)
    MR. ARNOLD: Judge, I think that I’ve covered the mitigators. I hope I
    have. Does that satisfy you?
    MR. EDGAR: Yes, sir, Your Honor. And I have jury instructions that
    conforms to that. Does Your Honor desire to inquire of the defendant any[
    ]more?
    THE COURT: I do not. I think it’s been adequately covered. What I
    propose is to bring the jury in now and tell them what stage of the trial
    we’re at. . . .
    After informing the jury that there would be no further testimony, the court
    declared a lunch recess. Closing arguments began at 1:00 p.m. Edgar reviewed in
    52
    Case: 11-15001      Date Filed: 07/31/2012      Page: 53 of 90
    detail the testimony he had presented the previous two days and argued that it
    established two aggravating circumstances: (1) Kormondy had been convicted
    previously of “a felony involving the use of threat or violence, namely, the robbery
    of Mr. and Mrs. McAdams or the sexual battery of Mrs. McAdams”; and (2) Mr.
    McAdams’s murder was “committed while [Kormondy] was engaged in or an
    accomplice in the commission of an attempt to commit a crime of burglary.”24
    Given those aggravating circumstanecs, he urged the jury to return a verdict
    recommending a death sentence.
    Arnold, in response, argued that several mitigating circumstances were
    present which the aggravating circumstances did not outweigh: Kormondy’s
    sentence should be the same as Buffkin’s and Hazen’s, life imprisonment;
    Kormondy cooperated with investigators Cotton and Hall following his arrest, as
    both had testified; his cooperation led to the Buffkin’s and Hazen’s arrests; the
    gun fired accidentally, indicating that there was no intent to kill; and there was
    some doubt as to whether Kormondy pulled the trigger.
    The jury returned its verdict in little over one hour. It recommended, by a
    vote of eight to four, that the court impose the death sentence.
    24
    Kormondy v. State (Kormondy II), 
    845 So. 2d 41
    , 48 (Fla. 2003) (per curiam).
    53
    Case: 11-15001    Date Filed: 07/31/2012    Page: 54 of 90
    D.
    Judge Tarbuck scheduled sentencing for July 7, 1999. On May 7, Arnold
    provided Judge Tarbuck with a Sentencing Memorandum in which he argued
    against the imposition of the death penalty based on the same mitigating
    circumstances he proposed to the jury and an additional circumstance: Kormondy
    had exhibited good behavior and good conduct during the trial. Arnold also
    attached transcripts of testimony Hazen and Buffkin gave at Hazen’s trial,
    testimony the jury did not hear. Hazen, testifying in his own defense, said that
    Buffkin admitted killing Mr. McAdams: “‘He stops by the front and he says well,
    if I didn’t do it like that, I was going to have to shoot him anyhow.’” Buffkin, a
    prosecution witness, testified that Kormondy did the shooting, that Kormondy was
    tapping the victim’s head with the gun and it went off, accidentally. Buffkin
    couldn’t have seen that because, as Mrs. McAdams testified, Buffkin was raping
    her in the master bedroom vanity when the shot was fired. Arnold closed his
    memorandum with this statement:
    The evidence in the instant case is such that nobody can say with any
    certainty exactly who actually killed Gary McAdams. . . . [A]lthough
    a felony-murder, nobody can establish that the shooting was not
    accidental. . . . If Kormondy is sentenced to death, while his two
    equally culpable co-defendants are sentenced to life, such is
    disproportional.
    54
    Case: 11-15001        Date Filed: 07/31/2012       Page: 55 of 90
    Judge Tarbuck sentenced Kormondy to death at the conclusion of the July 7,
    1999, proceeding. He found the two aggravating circumstances the State had
    argued to the jury, considered the mitigating circumstances Arnold had advanced,
    and concluded that the aggravators outweighed the mitigators.
    E.
    The Florida Supreme Court affirmed Kormondy’s death sentence.
    Kormondy v. State (Kormondy II), 
    845 So. 2d 41
     (Fla. 2003) (per curiam), cert.
    denied, 
    540 U.S. 950
    , 
    124 S. Ct. 392
    , 
    157 L. Ed. 2d 283
     (2003).25 In doing so, the
    court disposed of on a state law ground one of the claims of error we address
    today: that “Kormondy was denied his right to cross-examine and confront state
    witness Cecilia McAdams concerning her ability to identify and distinguish the
    perpetrators” in violation of the rights secured by the Sixth Amendment’s
    Confrontation Clause.26 
    Id. at 47
    .
    25
    Kormondy was represented on appeal by the Public Defender and an Assistant Public
    Defender for the Second Judicial Circuit of Florida.
    26
    The Sixth Amendment states, in relevant part: “In all criminal prosecutions, the
    accused shall have the right . . . to be confronted with the witnesses against him.” U.S. Const.
    amend. VI. This is known as the Confrontation Clause and is made applicable to the States
    through the Fourteenth Amendment’s Due Process Clause. Pointer v. State, 
    380 U.S. 400
    ,
    403–06, 
    85 S. Ct. 1065
    , 1068–69, 
    13 L. Ed. 2d 923
     (1965).
    55
    Case: 11-15001        Date Filed: 07/31/2012   Page: 56 of 90
    III.
    On August 30, 2004, Kormondy moved the Escambia County Circuit Court,
    pursuant to Florida Rule of Criminal Procedure Rule 3.851, to vacate his
    convictions and death sentence. His motion asserted, in the trial court’s words,
    “multiple and cumulative instances of ineffective assistance of counsel on the
    parts of his original and his resentencing attorneys,” each a denial of the right to
    effective representation guaranteed by the Sixth and Fourteenth Amendments to
    the United States Constitution. The motion was referred to Judge Tarbuck. After
    Kormondy amended the motion on April 5, 2005, Judge Tarbuck held an
    evidentiary hearing on the claims, on April 18 and 19, 2005, and assessed them in
    accordance with the standards prescribed by Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984). On June 20, 2005, he entered an
    order denying Rule 3.851 relief. Two of the ineffective assistance claims are
    before the court in this appeal.
    A.
    The first claim alleged that Antionette Stitt, who represented Kormondy
    throughout the guilt phase of the case in 1993 and 1994, rendered ineffective of
    counsel when she “failed to . . . withdraw from representing Defendant prior to the
    guilt phase trial.” According to Kormondy, Stitt should have moved the court to
    56
    Case: 11-15001        Date Filed: 07/31/2012     Page: 57 of 90
    withdraw because she was laboring under a conflict of interest: twenty years
    before Stitt undertook his representation, in 1993, she and Gary McAdams were
    high school classmates. This conflict, Kormondy said, rendered invalid of all of
    the convictions the 1994 trial produced.
    Judge Tarbuck denied this claim after hearing testimony from Stitt and
    Kormondy. Stitt testified that after Judge Kuder appointed her to take on
    Kormondy’s defense, she notified Judge Kuder, the State, and Kormondy that she
    had gone to high school with Mr. McAdams but did not have a close friendship
    with him. She described the relationship as being that of “nodding
    acquaintances”; they may have both been present at school social functions, but
    that they did not socialize with one another. Judge Tarbuck found Stitt’s
    testimony “credible” and that Kormondy “failed to meet his burden of
    demonstrating . . . that trial counsel actively represented conflicting interests.”
    The judge found, moreover, that Stitt informed Kormondy of her
    relationship with the victim and that Kormondy’s response was that “if it didn’t
    bother her, then it didn’t bother him.”27 He made this finding notwithstanding
    27
    At the evidentiary hearing, Stitt stated:
    He did not think it was a conflict nor did I. . . . He had not seen fit to ask me to
    remove myself from the case. Giving him all the conflicts, . . . such as the Long
    matter, the prior contact of mine with Gary McAdams, and by that time I was full-
    bored [sic] into the case, that is what I had been appointed by the court to do, and
    57
    Case: 11-15001        Date Filed: 07/31/2012        Page: 58 of 90
    Kormody’s denial that in preparing the case for trial, Stitt had informed him of her
    relationship with the victim.28 Judge Tarbuck found his denial “not credible.”
    B.
    The second claim Judge Tarbuck denied was Komondy’s claim that Ronald
    Arnold denied Kormondy his right to effective assistance of counsel during the
    penalty phase of the case (after the Florida Supreme Court remanded the case in
    Kormondy I). Arnold allegedly did this in two ways. The first involved
    Kormondy’s decision not to present mitigating evidence to the jury. Kormondy
    alleged
    that his waiver of presentation of mitigation before the jury was at the
    recommendation of his Defense Counsel [and] that Defense Counsel
    could not advise the Defendant to make an intelligent and knowing
    waiver not to present mitigation before the jury since Defense
    Counsel had not: (1) investigated the Defendant’s background, (2)
    by God I was going to do a good job.
    28
    As support for his position that Stitt did not inform him of her relationship with the
    victim and that if she had done so, he would not have approved of her handling the case,
    Kormondy referred to letters he sent defense counsel and Judge Kuder, in which he sought the
    removal of the Assistant Public Defenders and the substitution of court-appointed attorneys from
    the private sector. The Circuit Court found that Kormondy’s requests for substitute counsel did
    not relate to the potential conflict Stitt had disclosed.
    Defendant’s letter to trial counsel and Defendant’s letter to the trial judge indicate
    that Defendant requested the Public Defender’s Office be removed from his case
    because he wanted . . . counsel, like his codefendants’. Defendant testified to this
    fact at evidentiary hearing as well. Defendant has failed to submit any evidence
    which would convince the Court that he disapproved of his representation because
    of the[ ] potential conflict[ ].
    58
    Case: 11-15001       Date Filed: 07/31/2012        Page: 59 of 90
    read the entire file, (3) contacted or hired any experts, as no
    evaluations were performed, (4) contacted the Defendant’s family or
    friends, (5) consulted with the Public Defender [Davis] regarding
    previous mitigation, nor (6) obtained any medical or school records of
    the Defendant.
    ....
    [H]ad Defense Counsel fully investigated and informed the
    Defendant of all potential mitigation, the Defendant would not have
    waived presentation to the jury.
    The second way involved Arnold’s performance post-verdict. Kormondy
    alleged that Arnold was ineffective in “failing to present record mitigation to the
    Court in his [Sentencing] Memorandum at the Spencer hearing [before the
    Court].”29
    On June 30, 1999, a Spencer hearing was conducted . . . . At
    that hearing Defense Counsel was provided an opportunity to present
    mitigation, but failed to do so. In addition, Defense Counsel failed to
    provide to the Court record mitigation that had already been
    presented at the first penalty phase trial. Defendant’s waiver to
    present mitigation to the jury does not constitute a waiver to present
    mitigation to the Court. Regardless of the waiver, the Court was
    obligated to consider all record evidence. Defense Counsel should
    have been aware of the requirement.
    29
    A Spencer hearing occurs after the jury has recommended a sentence but before the
    judge imposes a sentence. Under Spencer v. State, the purpose of a Spencer hearing is to:
    a) give the defendant, his counsel, and the State, an opportunity to be heard; b)
    afford, if appropriate, both the State and the defendant an opportunity to present
    additional evidence; c) allow both sides to comment on or rebut information in
    any presentence or medical report; and d) afford the defendant an opportunity to
    be heard in person.
    
    615 So. 2d 688
    , 691 (Fla. 1993) (per curiam).
    59
    Case: 11-15001     Date Filed: 07/31/2012   Page: 60 of 90
    After considering the allegation that Arnold’s investigation of mitigating
    evidence was constitutionally deficient and the testimony of Arnold, Kormondy,
    and Davis (who represented Kormondy in the penalty phase in 1994 until his
    discharge on Kormondy’s motion on October 28, 1998), Judge Tarbuck said this:
    Raymond Arnold . . . was appointed to represent Defendant in his
    second penalty phase trial. Several types of mitigation evidence were
    presented at the first penalty phase trial. Attorney Arnold reviewed
    the mitigation evidence previously presented. Arnold testified that
    Defendant informed him he did not want the mitigation used in the
    first penalty phase presented in the second penalty phase trial.
    Arnold testified at the evidentiary hearing that he investigated
    possible mitigation evidence by speaking with Defendant, speaking
    with Defendant’s mother on a number of occasions, speaking with an
    expert, and speaking with previous penalty phase counsel [Davis]
    about possible mitigation. Arnold further testified that Defendant
    told him he did not want any witnesses to be called to testify in
    mitigation and that he did not want mitigation about his previous drug
    and alcohol use presented.
    Contrary to Defendant’s allegation, testimony was presented at
    the evidentiary hearing that [Arnold] actually discouraged Defendant
    from waiving all mitigation. Attorney Arnold testified that he
    encouraged Defendant to present mitigation evidence during the
    penalty phase. . . . [Arnold] even had his own daughter, who assisted
    [him] with investigating mitigation, speak to Defendant about
    presenting mitigating evidence. In the end, [Arnold] testified that
    there was ‘so much bad’ evidence that would have come in if
    Defendant had presented mitigation, that Defendant and [Arnold]
    agreed that it was good strategy not to present mitigation evidence.
    The Court finds that [Arnold] properly investigated possible
    mitigation before agreeing with Defendant that he should waive
    mitigation.
    Based on these findings, Judge Tarbuck found Kormondy’s waiver valid.
    60
    Case: 11-15001     Date Filed: 07/31/2012   Page: 61 of 90
    Turning to Arnold’s allegedly deficient performance post-verdict, Judge
    Tarbuck found that Arnold’s Sentencing Memorandum and the attached
    transcripts of Hazen’s and Buffkin’s testimony covered all the arguments Arnold
    had made in favor of sentence mitigation and in pursuit of “counsel’s primary
    strategy that [Kormondy] was not the one who shot Mr. McAdams, to minimize
    [Kormondy’s] direct involvement, and to argue a death sentence . . . would be
    disproportionate to the sentences received by [Kormondy’s] co-defendants.”
    Turning to Kormondy’s argument that Arnold should have presented the record of
    mitigation evidence presented to the jury in the penalty phase of the 1994 trial,
    Judge Tarbuck said this:
    Testimony at the evidentiary hearing was adduced that if
    [Arnold] had presented [that record] to the Court in his sentencing
    memorandum or at the Spencer hearing, that the cross-examination
    portion from the defenses witnesses would have also been before the
    Court for consideration. At the evidentiary hearing it was revealed
    that this cross-examination testimony of defense witnesses would
    have included statements that Defendant was malingering or rather
    ‘faking’ any mental disturbance, that Defendant was accused of
    forcibly sodomizing and raping a man in the Santa Rosa County Jail,
    Defendant was a habitual user of crack cocaine, and committed
    crimes to get the drug over a period of time, Defendant had a lengthy
    criminal history that spanned many years, and that although
    Defendant was a product of a bad home life, Defendant’s siblings
    (who grew up in the same environment) were upright citizens in the
    community. This information was thought by [Arnold] not to impress
    a judge or a jury. [Arnold] testified that he discussed the situation
    with Defendant on a number of occasions, and they agreed jointly that
    61
    Case: 11-15001     Date Filed: 07/31/2012   Page: 62 of 90
    it was good strategy not to present record mitigation. The reasoning
    for this decision was that if any of the favorable mitigators were
    argued, than the unfavorable information would also be before the
    Court.
    . . . . [T]he Court finds that it was a strategic choice made by
    both counsel and Defendant not to present record mitigation to the
    Court for its consideration. Defendant is therefore not entitled to
    relief.
    C.
    As indicated above, Judge Tarbuck denied Kormondy’s Rule 3.851 motion
    on June 20, 2005. Kormondy appealed his decision to the Florida Supreme Court,
    which affirmed, concluding that Judge Tarbuck, in disposing of Kormondy’s
    ineffective assistance claims, properly applied the Strickland v. Washington
    standards to factual findings that had ample evidentiary support in the record.
    Kormondy v. State (Kormondy III), 
    983 So. 2d 418
     (Fla. 2008).
    IV.
    On July 24, 2008, Kormondy petitioned the United States District Court for
    the Northern District of Florida for a writ of habeas corpus setting aside his 1994
    convictions and the death sentence he received in 1999. His petition presented
    seven claims for relief, all rejected by the Florida Supreme Court. Three of the
    claims are before us in this appeal. Two of the claims, both alleging ineffective
    62
    Case: 11-15001     Date Filed: 07/31/2012   Page: 63 of 90
    assistance of counsel, were disposed of in Kormondy III, the other claim, alleging
    a denial of the right of confrontation, was disposed of in Kormondy II. Since our
    review is limited to these three claims, we omit discussion of the other claims
    Kormondy’s petition presented.
    The first Kormondy III claim was that Stitt labored under a conflict of
    interest in representing Kormondy during the guilt phase of the prosecution, in
    1994. The second Kormondy III claim was that Arnold performed deficiently in
    the penalty phase of the case, in 1998 and 1999. The Kormondy II claim was that
    Judge Tarbuck, in sustaining the State’s objection to a question Arnold asked
    Cecilia McAdams on cross-examination, denied Kormondy his constitutional right
    to confront her regarding her ability to identify the men involved in the charged
    offenses.
    The District Court’s review of these claims was limited to the record before
    the Florida Supreme Court when it decided the claims. Cullen v. Pinholster, 563
    U.S. —, 
    131 S. Ct. 1388
    , 1398, 
    179 L. Ed. 2d 557
     (2011) (“We now hold that
    review under § 2254(d)(1) is limited to the record that was before the state court
    that adjudicated the claim on the merits.”). This limitation is inherent in the
    application of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
    No. 104-132, 
    110 Stat. 1214
     (“AEDPA”). Under AEDPA, a federal court may not
    63
    Case: 11-15001     Date Filed: 07/31/2012    Page: 64 of 90
    grant habeas relief on a claim previously adjudicated in state court unless the state
    court’s decision “was contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme Court of the United
    States,” or “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 statutory phrase “clearly established Federal law” refers only to “the
    holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time
    of the relevant state-court decision.” Williams v. Taylor, 
    529 U.S. 362
    , 412, 
    120 S. Ct. 1495
    , 1523, 
    146 L. Ed. 2d 389
     (2000). A state court decision is “contrary
    to” such holdings “if the state court arrives at a conclusion opposite to that reached
    by [the Supreme] Court on a question of law or if the state court decides a case
    differently than [the Supreme] Court has on a set of materially indistinguishable
    facts.” 
    Id.
     at 412–13, 
    120 S. Ct. at 1523
    . The “unreasonable application” clause
    of § 2254(d) permits a federal court to grant habeas relief “if the state court
    identifies the correct governing legal principle . . . but unreasonably applies that
    principle to the facts of the prisoner’s case.” Id. at 413, 
    120 S. Ct. at 1523
    . In
    sum, the District Court owed considerable deference to the Florida Supreme
    Court’s decisions rejecting Kormondy’s claims.
    64
    Case: 11-15001     Date Filed: 07/31/2012    Page: 65 of 90
    The District Court’s review of the two claims rejected in Kormondy III
    concerned the Florida Supreme Court’s application of the United States Supreme
    Court’s holdings in Strickland v. Washington. To make out a Sixth Amendment
    ineffective-assistance claim under Strickland, a petitioner must show (1) that
    counsel’s performance was deficient and (2) that counsel’s deficient performance
    prejudiced the defense. 446 U.S. at 687, 
    104 S. Ct. at 2064
    . The performance
    prong is satisfied only if the petitioner “show[s] that counsel’s representation fell
    below an objective standard of reasonableness.” 
    Id. at 688
    , 
    104 S. Ct. at 2064
    .
    Because “[t]here are countless ways to provide effective assistance in any given
    case,” 
    id. at 689
    , 
    104 S. Ct. at 2065
    , “the range of what might be a reasonable
    approach at trial must be broad,” Chandler v. United States, 
    218 F.3d 1305
    , 1313
    (11th Cir. 2000) (en banc). Thus, “a petitioner must establish that no competent
    counsel would have taken the action that his counsel did take.” Chandler, 
    218 F.3d at 1315
    . The prejudice prong requires the petitioner to establish a
    “reasonable probability” that, but for counsel’s errors, the outcome at trial would
    have been different. Strickland, 
    466 U.S. at 694
    , 
    104 S. Ct. at 2068
    . “A
    reasonable probability is a probability sufficient to undermine confidence in the
    outcome.” 
    Id.
    65
    Case: 11-15001      Date Filed: 07/31/2012     Page: 66 of 90
    Both Strickland and AEDPA prescribe “highly deferential” review. Richter,
    — U.S. at —, 
    131 S. Ct. at 788
     (quoting Strickland, 
    466 U.S. at 689
    , 
    104 S. Ct. at 2065
    ; Lindh v. Murphy, 
    521 U.S. 320
    , 333 n.7, 
    117 S. Ct. 2059
    , 2066 n.7, 
    138 L. Ed. 2d 481
     (1997)) (internal quotation marks omitted). And where, as here, both
    apply, the “review is ‘doubly’ so.” 
    Id.
     (quoting Knowles v. Mirzayance, 
    556 U.S. 111
    , 123, 
    129 S. Ct. 1411
    , 1420, 
    173 L. Ed. 2d 251
     (2009)); see also Childers v.
    Floyd, 
    642 F.3d 953
    , 972 (11th Cir. 2011) (en banc) (observing that, because of
    the presumption under 
    28 U.S.C. § 2254
    (e)(1) that state court findings of fact are
    correct, “where factual findings underlie the state court’s legal ruling, [the] already
    deferential review [under § 2254(d)] becomes doubly so”). Governed by these
    principles, the District Court addressed the ineffective assistance claims
    Kormondy III denied. The court began with the claim asserting Stitt’s conflict of
    interest.
    A.
    In his brief to the Florida Supreme Court in Kormondy III, Kormondy
    phrased his claim that Stitt labored under a constitutionally impermissible conflict
    of interest as he had presented it to Judge Tarbuck in his Rule 3.851 motion:
    “Whether . . . [Stitt] was . . . ineffective in failing . . . to withdraw from
    [Kormondy’s] representation before the first trial.” According to Kormondy, Stitt
    66
    Case: 11-15001     Date Filed: 07/31/2012    Page: 67 of 90
    “should have demanded her employer [the Public Defender for the First Judicial
    Circuit of Florida] remove her from [the] case, or, at the very least, inform the trial
    court about her conflict of interest on the record.”
    The crux of Kormandy’s argument was that, under the United States
    Supreme Court’s decision in Cuyler v. Sullivan, 
    446 U.S. 335
    , 349–50, 
    100 S. Ct. 1708
    , 1719, 
    64 L. Ed. 2d 333
     (1980), Stitt “had an obligation to inform the Court,
    on the record, of any potential conflict of interest.” And not only did she have an
    obligation to state “on the record” the fact that she and the victim were high school
    classmates, “Judge Kuder was put on notice of a potential conflict by Stitt in
    chambers and failed to inquire of counsel on the record.”
    The Florida Supreme Court found no merit in Kormondy’s conflict-of-
    interest claim because Kormondy failed to establish that Stitt “‘actively
    represent[ed] conflicting interests.’” Kormondy v. State (Kormondy III), 
    983 So. 2d 418
    , 434 (Fla. 2003). The Florida Supreme Court indirectly addressed and
    rejected the argument that Cuyler v. Sullivan required it to find a prejudicial
    conflict in Kormondy’s case by drawing on Cuyler’s statement of what must be
    shown to establish a Sixth Amendment ineffective assistance claim based on a
    conflict of interest: “‘“[Un]til a defendant shows that his counsel actively
    represented conflicting interests, he has not established the constitutional predicate
    67
    Case: 11-15001     Date Filed: 07/31/2012   Page: 68 of 90
    for his claim of ineffective assistance.”’” 
    Id.
     (quoting Hunter v. State, 
    817 So. 2d 786
    , 792 (Fla. 2002) (quoting Cuyler, 
    446 U.S. at 350
    , 
    100 S. Ct. at 1719
    )). “‘A
    possible, speculative or merely hypothetical conflict is “insufficient to impugn a
    criminal conviction.”’” 
    Id.
    In his habeas petition to the District Court, Kormondy argued that the
    Florida Supreme Court’s decision could not be sustained under 
    28 U.S.C. § 2254
    (d)(1) and (2), and that a writ of habeas corpus had to issue. The decision
    failed subpart (1), he said, because it “was contrary to, or involved an
    unreasonable application of, clearly established” Supreme Court precedent,
    namely Cuyler v. Sullivan; it failed subpart (2) because it was based on “an
    unreasonable determination of the facts.” He contended that the decision was not
    supported by the evidence because, in passing on the claim, neither Judge Tarbuck
    nor the Florida Supreme Court considered all of the relevant evidence. The
    District Court was unpersuaded and therefore dismissed the claim that the Florida
    Supreme Court, applying Cuyler, should have found that Stitt had an
    impermissible conflict of interest and, for that reason, (1) had a constitutional duty
    to withdraw from the case, and (2) that her failure to do so prejudiced his defense
    as a matter of law. Kormondy v. Secretary, No. 3:08cv316-RH, slip op. at 44
    (N.D. Fla. Sept. 29, 2011).
    68
    Case: 11-15001     Date Filed: 07/31/2012    Page: 69 of 90
    B.
    As he did in briefing his claim against Stitt, Kormondy, in describing to the
    Florida Supreme Court his ineffective assistance claim against Arnold, phrased the
    claim as he had presented to Judge Tarbuck: (1) Kormondy’s “waiver of
    presentation of mitigating evidence to the jury at the recommendation of his
    attorney was invalid because [Arnold] failed to investigate,” and (2) “[Arnold] was
    ineffective for failing to present record mitigation to the Court in his [sentencing]
    memorandum and at the Spencer hearing.” Kormondy argued that the Florida
    Supreme Court should reverse Judge Tarbuck’s rulings on both aspects of his
    ineffective assistance claim, vacate his death sentence, and remand the case for a
    new sentencing proceeding before the jury because the rulings were based on facts
    that were clearly erroneous.
    The Florida Supreme Court was not persuaded. Regarding Arnold’s alleged
    failure to investigate, the court agreed with Judge Tarbuck that there was
    ample evidence that counsel did conduct a reasonable investigation
    and discussed all possible mitigation evidence with Kormondy, but
    Kormondy chose not to present any mitigation evidence. Kormondy
    was questioned by counsel and the trial court on the record whether
    he understood that he had a right to present mitigation evidence, and
    Kormondy replied that he understood that he had that right. Thus,
    Kormondy knowingly and voluntarily waived his right to present
    mitigation evidence.
    69
    Case: 11-15001       Date Filed: 07/31/2012       Page: 70 of 90
    Kormondy III, 983 So. 2d at 435–36.
    As for the claim that Arnold performed deficiently post-verdict, the Florida
    Supreme Court held that the evidence at the Rule 3.851 hearing supported Judge
    Tarbuck’s finding that Arnold decision not to present to the court at sentencing the
    record of the mitigation evidence Davis presented to the jury in 1994 was a sound
    strategic decision. Id. at 436. Arnold fully considered presenting such evidence,
    but, with Kormondy’s assent, opted to forego such presentation due to the adverse
    information it would have yielded. Id.
    In his habeas petition to the District Court, Kormondy alleged that the
    provisions of 
    28 U.S.C. § 2254
    (d)(1) and (2) required the writ to issue. Kormondy
    asserted that the Florida Supreme Court’s decision regarding Arnold’s
    performance was contrary to, or an unreasonable application of, Schiro v.
    Landrigan, 
    550 U.S. 465
    , 
    127 S. Ct. 1933
    , 
    167 L. Ed. 2d 836
     (2007).30 According
    to Kormondy, under Schiro,31
    30
    The opinion in Schiro came down on May 14, 2007. The opinion in Kormondy III
    bears the date October 11, 2007. Kormondy did not cite Strickland v. Washington in support of
    his argument that the Florida Supreme Court’s decision was contrary to, or an unreasonable
    application, of a United States Supreme Court holding.
    31
    Kormondy’s petition did not explicitly state that Shiro required the performance
    described in the quoted language. We assume that, since Shiro was the only United States
    Supreme Court decision cited in support of the instant claim, that Shiro mandated the
    performance, as well as Farr v. State.
    70
    Case: 11-15001     Date Filed: 07/31/2012    Page: 71 of 90
    [e]ven if the alleged waiver was valid, Mr. Arnold was required to
    present available mitigation to the jury regardless of Kormondy’s
    objection. However, if Arnold was not ineffective for failing to
    present available mitigation to the jury, there was no excuse for not
    presenting the mitigation to the court. Farr v. State, 
    621 So. 2d 1368
    (Fla. 1993).
    Kormondy asserted that the Florida Supreme Court’s decision 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)(2), because “the Florida
    Supreme Court either ignored the mitigation presented in the first trial, or totally
    misconstrued the argument regarding record mitigation,” i.e., the transcript of the
    penalty phase of the 1994 trial before the jury. “The Florida Supreme Court [also]
    failed to consider all relevant evidence by Mr. Arnold at the evidentiary hearing,
    as well as Mr. Kormondy’s, about what mitigation Kormondy was waiving and the
    basis for the waiver.”
    The District Court was unpersuaded. Without mentioning Schiro, the court
    held that Strickland v. Washington, which the Florida Supreme Court applied,
    controlled the decision. Kormondy v. Secretary, No. 3:08cv316-RH, slip op. at
    30. Regarding Strickland’s performance, the District Court found that “the record
    fully supports the Florida Supreme Court’s conclusion that [Arnold] did not render
    ineffective assistance by failing to investigate or present mitigation evidence.” 
    Id.,
    71
    Case: 11-15001     Date Filed: 07/31/2012    Page: 72 of 90
    slip op. at 32. Addressing the argument that Arnold was ineffective in not
    presenting record mitigation post-verdict to the sentencing judge, the District
    Court concluded that the following testimony indicated he was not ineffective:
    [Arnold] testified in the state collateral proceeding that he and Mr.
    Kormondy were concerned that some of the possible mitigation
    evidence would do more harm than good. An attorney reasonably
    considers this possibility. See Kimbrough v. Sec’y, Dep’t of Corr.,
    
    565 F.3d 796
    , 804 (11th Cir. 2009) (upholding as reasonable an
    attorney’s decision not to present expert testimony based on a
    “concern that the limited beneficial information they might have been
    able to present would have been outweighed by the risk of opening
    the door to the admission of more damaging information.”). [Arnold]
    was concerned about the negative effect of evidence of drug and
    alcohol addiction. And he was concerned that any testimony of the
    expert he contacted would be marred by the expert’s conclusion that
    Mr. Kormondy was malingering and attempting to fake a mental or
    emotional condition. The concern about a corresponding negative
    effect from any mitigation evidence drew support from the experience
    in the first penalty-phase trial; one of the attorneys from that trial said
    that “for every aspect of the mitigation that I got into it and opened
    the door, every witness that I called whether it be expert or lay
    person, it basically opened the door to your cross-examination and
    brought out some facts that were not—were actually not mitigating
    aspects.”
    
    Id.,
     slip op. at 31. Having concluded that this testimony resolved in the
    ineffectiveness issue, the District Court moved from Strickland’s performance
    prong to its prejudice prong, and, concluded that Arnold’s omission of the
    mitigation evidence Kormondy claims should have been submitted caused him no
    prejudice.
    72
    Case: 11-15001     Date Filed: 07/31/2012    Page: 73 of 90
    Nor has Mr. Kormondy shown prejudice from the failure to
    present mitigation evidence. On this record, there is no reasonable
    likelihood that mitigation evidence would have made a difference.
    See Burger v. Kemp, 
    483 U.S. 776
    , 788–95[, 
    107 S. Ct. 3114
    ,
    3122–3126, 
    97 L. Ed. 2d 638
    ] (1987) (holding that when the
    available mitigation evidence would not have aided the petitioner’s
    case, the attorney did not render ineffective assistance by failing to
    present the evidence); Grayson v. Thompson, 
    257 F.3d 1194
    , 1225
    (11th Cir. 2001) (Even assuming arguendo ineffective assistance in
    the mitigating case at sentencing, there is no reasonable probability
    that the balance of aggravating and mitigating circumstances that led
    to the imposition of the death penalty in this case would have been
    different had counsel introduced the evidence compiled and presented
    in [petitioner’s] state habeas proceedings.”).
    
    Id.,
     slip op. at 32 (second alteration in original).
    In sum, in the District Court’s view, the evidence in the record fully
    supported the Florida Supreme Court’s finding that “Kormondy knowingly and
    voluntarily waived the right to present mitigating evidence and that this was a
    strategic choice.” 
    Id.,
     slip op. at 30. The District Court therefore concluded that
    “the Florida Supreme Court’s rejection of this claim was not contrary to or an
    unreasonable application of federal law as determined by the United States
    Supreme Court, nor were the rulings based on an unreasonable determination of
    the facts in light of the evidence presented in the state court.” 
    Id.,
     slip op. at
    32–33.
    73
    Case: 11-15001    Date Filed: 07/31/2012   Page: 74 of 90
    C.
    After disposing of Kormondy’s ineffective assistance claims, the District
    Court turned to the third claim now before us, which is based on the Sixth
    Amendment’s Confrontation Clause. This claim arose during Arnold’s cross-
    examination of Cecilia McAdams during the penalty phase of the trial. The
    District Court’s order denying habeas relief described the setting.
    At the penalty-phase retrial, Mrs. McAdams gave testimony
    consistent with this version of events. Mr. Buffkin entered the home
    first—a point on which all apparently have agreed all along. Mr.
    Hazen was the first to sexually assault Mrs. McAdams. Mr. Hazen
    invited Mr. Kormondy to join the sexual assault, and he did. Mr.
    Hazen and Mr. Kormondy returned to the kitchen with Mrs.
    McAdams, and then Mr. Buffkin took her to the back room and
    sexually assaulted her. While Mr. Buffkin was in the back room with
    Mrs. McAdams, she heard a gunshot in the kitchen.
    [Arnold] cross-examined Mrs. McAdams, focusing at one point
    on her assertion that the third assailant—the one who was with her
    when the shot was fired—was the person who entered the home first.
    The cross-examination included this exchange:
    Q.    [W]ith regards to the individual who last took you
    back to the bedroom, you indicated a few minutes
    ago, when you were testifying, that you thought
    the voice was the same as the first person. Isn’t it
    really true that you don’t really know which one it
    was?
    A.    No, sir. I feel very confident that I do know which
    one it was.
    74
    Case: 11-15001      Date Filed: 07/31/2012    Page: 75 of 90
    Q:    Do you remember back in March the 29th of 1994
    when these cases first got started?
    A.    Yes, sir.
    Q.    And Mr. Edgar and several other attorneys were
    present when they took your deposition?
    A.    Yes, sir.
    Q.    Do you recall if – at that time, if you were asked
    with regard to the identity of the person who took you
    back?
    MR. EDGAR: Your Honor, I object.
    THE COURT: I sustain. Do not answer the
    question.
    Q.     [Arnold] Mrs. McAdams, were you ever able to
    identify Johnny Shane Kormondy as being in your
    home?
    A.    I did not see him as far as his full face, no, sir. I
    recognize some similar characteristics and features.
    Q.     Because of the height, the weight, and that sort of
    thing?
    A.    Hair.
    Q.    And hair?
    A.    Uh-huh.
    75
    Case: 11-15001       Date Filed: 07/31/2012      Page: 76 of 90
    Q.     And would the same go with . . . Hazen, whatever
    his name was, did you ever – were you ever able to
    identify him?
    A.      No, sir.
    
    Id.,
     slip op. at 24–25 (second alteration in original).
    In appealing his sentence to the Florida Supreme Court, Kormondy, relying
    on Delaware v. Van Arsdall, 
    475 U.S. 673
    , 
    106 S. Ct. 1431
    , 
    89 L. Ed. 2d 674
    (1986),32 argued that, in sustaining the prosecutor’s objection to the question “Do
    you recall . . . if you were asked with regard to the identity of the person who took
    you back?”, the trial court denied him his “constitutional right to cross-examine a
    witness when he attempted to impeach Mrs. McAdams’[s] testimony by
    questioning her about a prior inconsistent deposition statement.” Kormondy II,
    
    845 So. 2d at 52
    . The Florida Supreme Court rejected the argument, adopting the
    State’s argument instead.
    As the State argues, the defense made no attempt to establish through
    a proffer or other explanation that the trial court should not have
    sustained the State’s objection. The defense did not indicate what
    was being sought from the witness by the question nor that there was
    evidence that would demonstrate that Mrs. McAdams had
    misidentified her assailants. See Finney v. State, 
    660 So. 2d 674
    , 684
    32
    Kormondy’s brief cited Delaware v. Van Arsdall, 
    475 U.S. 673
    , 
    106 S. Ct. 1431
    , 
    89 L. Ed. 2d 674
     (1986), in a string cite, but did not explain why the Florida Supreme Court should
    find trial court error based on those decisions. Kormondy also cited within that string cite,
    “Olden v. Kentucky, 
    488 U.S. 227
     (1988); United States v. Owens, 
    484 U.S. 554
     (1988); . . .
    Davis v. Alaska, 
    415 U.S. 308
     (1974); and California v. Green, 
    399 U.S. 149
     (1970).”
    76
    Case: 11-15001   Date Filed: 07/31/2012   Page: 77 of 90
    (Fla. 1995) (holding that without a proffer it is impossible for the
    appellate court to determine whether the trial court’s ruling was
    erroneous and if erroneous what effect the error may have had on the
    result). Therefore, it cannot be determined from the record that the
    defendant was deprived of his opportunity to cross-examine or
    impeach the witness.
    
    Id.
     at 52–53.
    The Florida Supreme Court cited no United Supreme Court case in
    rejecting Kormondy’s constitutional argument. Rather, as the above quotation
    indicates, the Florida Supreme Court rejected his argument on a state law ground;
    after the trial court sustained the prosecutor’s objection, defense counsel, to obtain
    appellate review of the ruling, had to inform the court of the answer he expected
    Mrs. McAdams to give. The District Court acknowledged that the Supreme Court
    had decided the issue as a question of Florida law, and held that it was a “proper
    ground,” Kormondy v. Secretary, No. 3:08cv316-RH, slip op. at 26, “‘a state law
    ground that is independent of the federal question and adequate to support the
    judgment,’” id. at 28 (quoting Coleman v. Thompson, 
    501 U.S. 722
    , 729–30, 
    111 S. Ct. 2546
    , 2553–54, 
    115 L. Ed. 2d 640
     (1991)). At the same time, the District
    Court responded to Kormondy’s argument that the Florida Supreme Court’s
    decision was contrary to, or an unreasonable application of Van Arsdall, and
    concluded that “Van Arsdall does not hold that a trial court cannot require a
    77
    Case: 11-15001     Date Filed: 07/31/2012   Page: 78 of 90
    proffer or its equivalent as a condition for preserving a Confrontation Clause
    objection.” Id. at 27.
    V.
    The District Court denied Kormondy’s petition for a writ of habeas corpus
    on July 24, 2008. He now appeals its decision. As was the situation in the District
    Court, we are tasked with determining whether the Supreme Court of Florida, in
    rejecting a claim at issue here, rendered a decision that was contrary to, or
    involved an unreasonable application of, a Supreme Court holding, or was based
    on an unreasonable determination of fact. And in carrying out that task, we, like
    the District Court, are limited to the record on which the Florida Supreme Court
    based its decision. Cullen, 563 U.S. at —, 
    131 S. Ct. at 1398
    . With that said, we
    turn to the three claims on review, taking them up in the same order the District
    Court did.
    A.
    In his brief to this court, Kormondy frames the issue concerning Stitt’s
    alleged conflict of interest and his argument on that issue, thusly: “Kormondy’s
    Fifth, Sixth, and Fourteenth Amendment Rights were violated because he did not
    have conflict-free counsel.” Appellant’s Br. at 1, 47. That is not how he framed
    the issue in the Rule 3.851 court, the Florida Supreme Court, and the District
    78
    Case: 11-15001       Date Filed: 07/31/2012      Page: 79 of 90
    Court. In those courts, he framed the issue as: “Whether [Stitt] was . . . ineffective
    in failing . . . to withdraw from [Kormondy’s] representation before the first trial.”
    Stitt was ineffective, Kormondy argued, because she and the victim had been high
    school classmates.
    In framing the issue and the argument as he has done in this court,
    Kormondy is attempting to transform a series of defense counsel miscues, which,
    standing alone, could not support a constitutional claim, into a claim that the
    totality of the miscues worked a manifest injustice requiring a new trial.33 This
    claim of combined instances of ineffective assistance has not been exhausted, and
    we therefore do not consider it. See 
    28 U.S.C. § 2254
    (b)–(c). What we do
    consider is whether the District Court erred in concluding that there was no basis
    for finding that the Florida Supreme Court’s decision somehow misapplied Cuyler
    v. Sullivan or that it was based on facts having no evidentiary support in the
    record. The answer is no. There is nothing in the record of this case indicating
    that, at the time Stitt undertook Kormondy’s representation, she was “actively
    represent[ing] conflicting interests.” Kormondy III, 983 So. 2d at 434.
    33
    For example, Kormondy alleged that Stitt “conceded [his] guilt of robbery and
    burglary to the jury” without consulting him, “failed to impeach Mrs. McAdams with available
    evidence,” including her own deposition, and “failed to impeach [Long] with his criminal
    record.”
    79
    Case: 11-15001     Date Filed: 07/31/2012   Page: 80 of 90
    B.
    In his brief on appeal, Kormondy frames the issue and argument concerning
    Arnold’s alleged ineffectiveness in the penalty phase essentially as he did in the
    Rule 3.851 court, the Florida Supreme Court and the District Court: “Kormondy
    was denied the effective assistance of counsel at the resentencing proceeding due
    to counsel’s failure to adequately investigate and introduce mitigating evidence.”
    Appellant’s Br. at 1, 22. Kormondy asks that we reverse the District Court’s
    decision rejecting this claim because the District Court erred in concluding that
    “‘the record fully supports the Florida Supreme Court’s conclusion that the
    penalty-phase-retrial attorney did not render ineffective assistance by failing to
    investigate or present mitigating evidence.’” Id. at 34. Kormondy asserts,
    moreover, that the Supreme Court’s “decision was objectively unreasonable and
    its factual findings [were] rebutted by clear and convincing evidence.” Id.
    The nub of Kormondy’s argument, as he presented it to the District Court
    and does so in his brief to this court, is that the Florida Supreme Court should not
    have relied on, as Judge Tarbuck did, “Arnold’s testimony that ‘Kormondy and
    counsel agreed that it was a good strategic decision not to present certain record
    mitigation because of statements that could come out in cross-examination of
    defense witnesses.’” Id. at 33 (quoting Kormondy III, 983 at 436). Kormondy
    80
    Case: 11-15001        Date Filed: 07/31/2012       Page: 81 of 90
    testified that he disagreed with that strategy; he wanted Arnold to introduce the
    mitigation evidence presented at the 1994 penalty phase, “he just did not want his
    mother to testify.” Id. at 38. “[C]ontrary to the state court’s determination, no
    mitigation was presented to the jury because Arnold was either unprepared to do
    so or he had a faulty understanding as to what constitutes mitigation.” Id. at 42.
    In short, Kormondy’s position, as communicated to Arnold, was that he wanted
    Arnold to present to the jury the same mitigation testimony Davis presented to the
    jury in 1994 with the exception of his mother’s testimony. This mitigation, if
    presented, would have been enhanced, his brief implies, with the testimony of Dr.
    Gary Jacobsen, a physician specializing in addiction,34 id. at 26, of whose opinion
    Arnold was either unaware or negligently disregarded. Davis hired Dr. Jacobsen
    in 1998, while Davis was still representing Kormondy, and presumably would
    have had summoned Dr. Jacobsen to testify before the jury. “Dr. Jacobsen . . .
    examined Kormondy in August 1998, and he submitted an evaluation” which
    covered Kormondy’s social history with a focus on his chemical addition to
    alcohol and an assortment of drugs. Id. at 27. In addition to detailing Kormondy’s
    use of alcohol, which began at age 12 (or earlier), and a variety of other
    34
    Dr. Jacobsen’s specialty was the same as Dr. Donald G. Morton’s, the addiction
    specialist who testified as a defense witness in the 1994 penalty phase. See supra part I.B.
    81
    Case: 11-15001     Date Filed: 07/31/2012    Page: 82 of 90
    chemicals—marijuana, sniffing gasoline, LSD and Mushrooms (hallucinogens),
    amphetamines, cocaine and crack cocaine—Dr. Jacobsen described Kormondy’s
    drug use around the time of the McAdams murder, on July 11, 1993. Id. at 27–32.
    Cocaine use on 7/10/93 included at least 2 times in the afternoon in
    the $40 - $60 range. He doesn’t know how many times he used on
    7/10 because he had been trading stolen goods for cocaine for a few
    weeks and going to the dealer multiple times a day. He does not
    know when he last used before the date of incident. All of his money
    was going to buy cocaine, which caused arguing with his wife and
    they were not on the “right terms”. She would stay with her mom and
    dad for several days at a time and he might leave the house for a day
    or two at a time himself. This was occurring for about 2 weeks prior
    to 7/10. Curtis Bufkin [sic] was staying with them. He knew Mr.
    Bufkin [sic] was an escapee. In response to specific questioning he
    admits that after 7/11/93 he traded the gun for cocaine. He knew that
    he needed to get rid of the gun so he thought he might as well trade it
    for cocaine and nobody would ever say where it came from. After
    7/11/93 he continued to use cocaine whenever he had the money or
    something to trade until he was arrested.
    Id. at 30 (emphasis added).
    Kormondy acknowledges that he expressly declined to present mitigation
    evidence in two lengthy colloquies that took place in court (in the absence of the
    jury) both immediately prior to the commencement of the trial of the penalty phase
    and after the State rested its case. His brief recalls his testimony at the Rule 3.851
    evidentiary hearing before Judge Tarbuck, when he was questioned about the
    answers he gave during those colloquies. He “remember[ed] appearing in front of
    82
    Case: 11-15001     Date Filed: 07/31/2012   Page: 83 of 90
    Judge Tarbuck, but some of the questions [he could not] remember.” Id. at 40.
    His brief cites the following question and answer from the evidentiary hearing.
    Q. If you are saying you wanted mitigation to be presented during the
    second penalty phase, why did you agree to the waiver of what Mr.
    Arnold asked you about?
    A. I believe I was just taking his advice on it. He felt that what was
    best at the time, so I was going along with him and taking his advice
    on it. I didn’t really —
    Id.
    The inferences Judge Tarbuck could have reasonably drawn from the
    questions Arnold put to Kormondy during these colloquies are (1) that Arnold was
    fully aware of the mitigating evidence Davis had presented to the jury at the trial
    of the penalty phase in 1994 and the mitigating evidence available at that moment,
    in May 1999, and (2) that Arnold and Kormondy had discussed such evidence at
    length and decided not to present it. Kormondy obviously had a vivid memory of
    the evidence because he was adamant that he did not want his mother to testify; he
    had observed how she had been humiliated. In sum, the record amply supports
    Judge Tarbuck’s and the Florida Supreme Court’s findings regarding Arnold’s
    investigation of mitigating evidence, his preparation for the jury trial and post-
    verdict sentencing, and Kormondy’s knowing and voluntary agreement with the
    strategy Arnold employed.
    83
    Case: 11-15001     Date Filed: 07/31/2012   Page: 84 of 90
    As for that strategy, at sentencing, Arnold had reasonable arguments in
    mitigation. First, the only evidence the State had to prove that Kormondy was the
    shooter was his “confession” to Long, after a night of drinking. Long admitted on
    cross-examination in the guilt phase of the trial, in 1994, that “he smoked fifty
    dollars worth of crack-cocaine and drank six pitchers of beer prior to Kormondy’s
    revelation that night.” Long, who had a criminal record and was on the run for
    probation violation, had every incentive to implicate Kormondy—so that the
    authorities might go easy on him when the probation revocation hearing rolled
    around. In addition, he was looking to split a $50,000 reward with Robarts. At
    the very least, the credibility of Long’s testimony was problematic. Second, some
    evidence suggested that Hazen, not Kormondy, pulled the trigger. Hazen was the
    one who had been possessing the .38-caliber handgun which fired the fatal shot.
    Hazen found the gun while rummaging through the drawers in the master
    bedroom; he used the gun to force Cecilia McAdams into the bedroom for oral
    sex; he had the gun in his possession while she was performing oral sex and
    Kormondy was raping her; and after that ended, he still had the gun in his
    possession when he and Kormondy left the bedroom and returned to the kitchen.
    Finally, Hazen was in the kitchen when the shot was fired. Either he shot Gary
    McAdams or he gave the gun to Kormondy, and Kormondy did the shooting. In
    84
    Case: 11-15001       Date Filed: 07/31/2012      Page: 85 of 90
    the end, except for Long’s testimony, who had the gun was never established.35 At
    the end of the day, Arnold had a good argument that Kormondy should not be the
    only one of the three to receive a death sentence.
    Kormondy’s brief implies that Arnold’s strategy could have accommodated
    the mitigation evidence presented in the first penalty phase—that the two
    strategies were not inconsistent. Arnold could raise doubt about Kormondy’s
    status as the one who shot Gary McAdams and argue that, in light of the sentences
    Hazen and Buffkin received, Kormondy should receive a life sentence and, at the
    same time, argue that his life should be spared because of his impoverished
    upbringing and chemical addiction caused by years of alcohol and drug abuse as
    shown by the mitigating evidence. There are two problems with this argument.
    First, if Dr. Jacobsen testified as he wrote in his evaluation, he would establish
    that Kormondy had the murder weapon and had to get rid of it, so he traded it for
    cocaine. Second, “this is not a case where the weight of the aggravating
    circumstances or the evidence supporting them was weak.” Rutherford v. Crosby,
    35
    Further, Hazen, Kormondy’s close friend and quasi-cousin, was tried following
    Kormondy’s trial. The State wanted Kormondy, who would not be sentenced until October 7,
    1994—long after Hazen’s trial—to testify against Hazen and obtained an order from the judge
    presiding over Hazen's case, Judge Kuder, granting Kormondy use immunity. When the State
    called Kormondy as a witness, however, he refused to testify, so the judge held him “in contempt
    of court.” Kormondy I, 
    703 So. 2d at 457
    . The record does not tell us why Kormondy refused to
    testify. We don't know whether Stitt and Davis advised him to testify; his testimony, if he
    identified Hazen as the trigger man, may have been of benefit at sentencing.
    85
    Case: 11-15001     Date Filed: 07/31/2012    Page: 86 of 90
    
    385 F.3d 1300
    , 1316 (11th Cir. 2004). And the evidence of Kormondy’s extensive
    drug and alcohol addictive consumption is, “as we have repeatedly recognized . . .
    often a two-edged sword, that provides an independent basis for moral judgment
    by the jury.” Suggs, 
    609 F.3d 1218
    , 1231 (11th Cir. 2010) (internal quotation
    marks and citations omitted); see also Pace v. McNeil, 
    556 F.3d 1211
    , 1224 (11th
    Cir. 2009) (“[P]resenting evidence of a defendant’s drug addiction to a jury is
    often a ‘two-edged sword’: while providing a mitigating factor, such details may
    alienate the jury and offer little reason to lessen the sentence.”); Grayson v.
    Thompson, 
    257 F.3d 1194
    , 1227 (11th Cir. 2001) (same); Thompkins v. Moore,
    
    193 F.3d 1327
    , 1338 (11th Cir. 1999) (same); Rogers v. Zant, 
    13 F.3d 384
    , 388
    (11th Cir. 1994) (same). The evidence of Kormondy’s impoverished upbringing,
    lack of parenting, and a father who abandoned him is also problematic.
    Kormondy’s half-siblings, Vernon Laura, and Bill, were brought up in the same
    environment of physical abuse, neglect and poverty, their fathers left their mother
    to fend for herself and her children, yet they emerged as law abiding citizens. The
    mitigating evidence now pressed by Kormondy has its obvious limitations.
    We conclude that, given the “double” deference due the Florida Supreme
    Court’s decision by Strickland v. Washington and AEDPA, the District Court’s
    86
    Case: 11-15001       Date Filed: 07/31/2012       Page: 87 of 90
    decision rejecting Kormondy’s claim of ineffective assistance on Arnold’s part
    must be affirmed.
    C.
    We turn now to the third claim on appeal, which challenges the Florida
    Supreme Court’s holding that the trial court did not err in sustaining the State’s
    objection to a question Arnold put to Cecilia McAdams on cross-examination. In
    his brief to the Florida Supreme Court, Kormondy framed the issue this way:
    “Whether Kormondy was denied his right to cross-examine and confront state
    witness Cecilia McAdams concerning her ability to identity and distinguish the
    perpetrators. In his brief to this court, Kormondy reframed the issue to:
    “[Whether] Kormondy was denied his right to cross-examine and confront his
    accuser in violation of the Fourth, Fifth, and Fourteenth Amendments.”
    Appellant’s Br. at 1, 17. Although, in the argument portion of his brief to this
    court, Kormondy cites Sixth Amendment Confrontation Clauses decisions in
    support of his claim, principally Delaware v. Van Arsdall,36 
    id.
     at 20–22, and the
    District Court held that the Florida Supreme Court’s decision was neither contrary
    to nor involved an unreasonable application of Van Arsdall, in framing his issue
    here Kormondy chose not to refer to the Confrontation Clause. He relies, instead,
    36
    The other Confrontation Clause decisions Kormondy cites are cited in note 31, supra.
    87
    Case: 11-15001        Date Filed: 07/31/2012         Page: 88 of 90
    on the Fourth and Fifth Amendments and the Fourteenth Amendment simpliciter
    and, then, in arguing that the Florida Supreme Court erred in sustaining the trial
    court’s evidentiary ruling, makes no mention of those Amendments.37 The
    technical question this mis-framing of the issue creates is whether we decide the
    case in accordance with the issue as framed, or ignore the mis-framing and decide
    the matter as presented in his argument. Because the Florida Supreme Court
    recognized the claim as alleging a Confrontation Clause violation, but disposed of
    it on a state law ground, and the District Court as an alternative holding addressed
    the claim under the Confrontation Clause, we do likewise.
    Kormondy argues that the District Court erred in finding no basis for
    disturbing Florida Supreme Court’s disposition of Kormondy’s claim. We find no
    error. The District Court correctly held that the Florida Supreme Court properly
    37
    To the extent that Kormondy’s claim is based on the Fourth and Fifth Amendments,
    the claim is unexhausted. Moreover, Kormondy cites no United States Supreme Court Fourth or
    Fifth Amendment holdings applicable in the context of the claim at issue. As for the Fourteenth
    Amendment, Kormondy cites Chambers v. Mississippi, 
    410 U.S. 284
    , 
    93 S. Ct. 1038
    , 
    35 L. Ed. 2d 297
     (1973), an application of the Due Process Clause of the Fourteenth Amendment. In that
    case, Chambers, the petitioner, claimed that the Mississippi Supreme Court—in sustaining the
    trial court’s denial of his request to have a witness, who had confessed and later retracted his
    confession to the murder of which Chambers had been charged, declared a hostile witness and
    preclusion of the testimony of witnesses to such confession on hearsay grounds—denied him a
    fundamentally fair trial in violation of the Due Process Clause of the Fourteenth Amendment.
    In the case at hand, nowhere in his brief to the Florida Supreme Court, in his habeas
    petition to the District Court, or in his brief to this court did Kormondy argue that the trial court’s
    challenged evidentiary ruling denied him a fundamentally fair trial before the jury in the second
    penalty phase proceeding. We therefore do not consider the claim.
    88
    Case: 11-15001     Date Filed: 07/31/2012    Page: 89 of 90
    rejected the claim on an independent and adequate state law ground, Kormondy v.
    Secretary, No. 3:08cv316-RH, slip op. at 27–28, and we can take judicial notice of
    the proposition that courts uniformly require a cross-examiner to put a question to
    the witness and obtain an answer before confronting the witness with a previous
    inconsistent answer. The court held, alternatively, on de novo review, that the
    Florida Supreme Court’s decision was not contrary to, or an unreasonable
    application of, United States Supreme Court precedent, namely Van Arsdall. 
    Id.,
    slip op. at 27. The District Court explained that there was no valid claim at all,
    much less one under the Confrontation Clause. Here is the court’s analysis:
    Mr. Kormondy asserts he should have been able to impeach
    Mrs. McAdams with her deposition testimony that she did not see the
    face of the man who brought her into the bedroom when her husband
    was shot. But the court did not bar Mr. Kormondy’s attorney from
    asking exactly that. Mrs. McAdams testified on direct
    that she matched the voice of the third assailant with that of the
    person who entered the home first, not that she saw the third
    assailant. She presumably would have said, if asked, that she did not
    see the third assailant’s face. She would properly have been
    impeached with deposition testimony that she did not see the third
    assailant’s face only if she first testified at trial that she did see his
    face. When the defense attorney attempted to jump straight to the
    deposition testimony, without first having elicited Mrs. McAdams’s
    testimony on this point at the trial, the court sustained an objection.
    Enforcing the rule that a witness cannot be impeached with
    deposition testimony unless it is inconsistent with the witness’s
    testimony at trial does not violate the Confrontation Clause.
    89
    Case: 11-15001    Date Filed: 07/31/2012   Page: 90 of 90
    
    Id.,
     slip op. at 25–26. We agree that the Florida Supreme Court properly rejected
    the claim on an adequate and independent state law ground and, alternatively, that
    the decision was neither contrary to, or an unreasonable application of, Van
    Arsdall.
    VI.
    For the reasons stated in this opinion, the judgement of the District Court
    denying the writ of habeas corpus is
    AFFIRMED
    90