Rose v. Sec. DOC. ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 4, 2011
No. 10-11848
JOHN LEY
________________________ CLERK
D.C. Docket No. 8:93-cv-01169-SDN-EAJ
MILO A. ROSE,
lllllllllllllllllllllPetitioner - Appellant,
versus
WALTER A. MCNEIL,
Secretary, Florida Department of Corrections,
lllllllllllllllllllllRespondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 4, 2011)
Before CARNES, HULL and MARTIN, Circuit Judges.
HULL, Circuit Judge:
Milo A. Rose, a Florida prison inmate under a death sentence, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
The sole issue on appeal is whether Rose’s trial counsel was ineffective in the
investigation and presentation of mitigation evidence at the penalty phase. After
review and oral argument, we affirm.
I. BACKGROUND
Rose was convicted and sentenced to death for the brutal murder of Robert
C. “Butch” Richardson, the son of Rose’s girlfriend. Multiple witnesses saw Rose
kill Richardson by repeatedly smashing his head with a concrete block. Rose
admitted to two acquaintances that he killed Richardson.1 Rose was arrested the
day after Richardson’s October 18, 1982 murder.
A. Appointment of Counsel
Assistant public defenders Wayne Shipp and Ronald Eide initially
represented Rose. In January 1983, Rose moved pro se to dismiss Shipp and Eide,
who then moved to withdraw. The state trial court granted their motion. Two
different private attorneys then represented Rose, but each withdrew after a few
weeks. On March 31, 1983, the state trial court appointed attorney Darryl Rouson,
1
As to Rose’s guilt, it is noteworthy that in 2002, the state trial court granted Rose’s
motion for DNA testing. After the tests results were provided to the parties, Rose made a pro se
motion to waive DNA testing, which the state court denied as moot. According to the state
court’s order, the DNA test results were “not favorable to [Rose] in that they confirm that blood
was found on his pants which matched the blood on the concrete block which was used to
murder the victim.”
2
who represented Rose at trial.2
Rouson found that Rose “absolutely was a difficult client to represent.” It
was apparent to Rouson “after talking with [Rose] a few times why some of the
other lawyers jumped off the case.” Rose’s trial was to begin on April 11.
Rouson wanted to continue the trial, but Rose refused to waive his speedy trial
rights and wanted to go to trial as scheduled. Rouson moved to withdraw but
ultimately convinced Rose to let the trial be continued to allow time for discovery.
The state trial court re-set the trial for June 27, 1983.
B. Rouson’s Pretrial Investigation
To prepare, Rouson received and reviewed files from Rose’s previous
attorneys, including all depositions and investigative materials.3 Rouson
interviewed Rose, visited Rose’s girlfriend Barbara Richardson (the victim’s
mother), and talked with witnesses on the phone. Rouson visited the crime scene,
researched legal issues, and attended a criminal defense conference.4 Rouson
2
Rouson was admitted to practice law in December 1980, after which he worked for a
year with Gulf Coast Legal Services and spent sixteen months as a prosecutor. In June 1982 he
entered private practice, doing mostly criminal defense. Before Rose’s murder trial, Rouson had
tried about 50 to 60 jury trials.
3
The details of Rouson’s pretrial preparation comes from his testimony at the evidentiary
hearing held in Rose’s state postconviction case. Rouson was unable by that time to find his file
from Rose’s case, and therefore did not have it available to aid his recollection.
4
For part of the pretrial period, Rouson was assisted by an attorney named Terry West,
who performed legal research, worked on motions, and spoke with the court-appointed
3
prepared for the penalty phase in the course of preparing for trial.5 Rouson looked
at both potential mitigating and aggravating factors, because Rouson wanted “to
anticipate what the state is going to allege is aggravating and try to make it out to
be mitigating or try to look at it to see if there is a positive side to it or if there is
something that I can argue that can make what might be aggravating on its face
mitigating in substance at least.”
Rouson acknowledged that having family members testify about Rose’s
childhood and life was important. Rose, however, told Rouson his family would
not testify or “stand up in his behalf” and their testimony would not be helpful.
On June 23, 1983 (four days before the guilt phase began), the state trial
court granted Rouson’s motion to appoint a psychologist (Dr. Vincent Slomin) to
psychologist. West never entered a formal appearance in the case.
5
Rouson testified:
In regard to the penalty phase I believe that in the course of preparing for the
[trial] I also prepared for that. I recall researching the instructions thoroughly,
separating out the aggravating, mitigating circumstances, looking through the notes
I had, the depositions that I had, the information, that I had to discover what
witnesses or evidence would be material not only for the guilt or innocence phase but
also for the penalty phase. And I recall speaking to various attorneys at different
points about it.
....
I would have prepared for [the penalty phase] along with preparing for the []
guilt and innocence phase. My efforts did not become concentrated strictly on the
penalty phase until after, of course, [Rose] was found guilty. But I prepared for the
entire trial. I prepared for the guilt and the innocence phase as well as for the penalty
phase, but you do that in the course of preparing the entire case.
4
assess Rose’s competency and help with possible defenses, including mitigation
evidence for the penalty phase. Rouson was concerned about Rose’s competency
because Rose was “absolutely adamant” that he was not present at the crime scene.
Although Rouson spoke to Rose “on a number of occasions about insanity, about
intoxication, about a lesser,” “[n]othing would satisfy him. Nothing would appeal
to him other than the fact that he just didn’t do it, he wasn’t there.” Rouson
reminded Rose “that this is death or life” and that Rose was “asking me to roll the
dice[,] . . . to walk in there, not plead anything in a sense in mitigation or in your
defense but it wasn’t you.” Though at first Rouson wondered about Rose’s
competency, after Rouson “said it to [Rose] over and over again and each time . . .
[Rose] accepted what I was saying and then rejected it or accepted it, but still
maintained that posture, . . . I went forward. I relied on the psychologist appointed
by the court.”
Rouson felt Rose’s insistence on arguing he was not there limited Rouson’s
available defenses. Rouson stated that even on “the morning of trial I was still
trying to convince him that we should at least consider the insanity defense or the
intoxication defense and he would not consider either of them.” Rouson
acknowledged that, as the attorney, he maintained a “certain amount of control and
direction” over trial strategy, but Rouson “tried to do that as best I could while
5
giving [Rose] what he wanted, while trying to listen to his objections and his
protestations and abide by them within the parameters of the facts, the
circumstances, the evidence in the case.” Rouson believed “Rose was the type of
client that if he didn’t agree with my representation and what was happening, he
would have said it out loud in court.”
C. Dr. Slomin’s Examination and Report
Rouson provided Dr. Slomin with Rouson’s file, including a 5–6 page
interview sheet about Rose’s background, and spoke with Dr. Slomin before and
after Dr. Slomin’s examination of Rose. Dr. Slomin examined Rose for about two
hours. The exam included a clinical interview, the Rorschach test, the Bender-
Gestalt test, and the Bender Draw-a-Person test. Dr. Slomin never indicated he
needed more background information on Rose.
Dr. Slomin’s June 24, 1983 report noted, as to Rose’s personal history, that
Rose: (1) was married for nine years and divorced in 1978; (2) had two children, a
12-year-old son and an 8-year-old daughter; (3) had hand and facial scars from a
1982 car accident in which he “was propelled through the windshield of an
automobile,” requiring over 100 stitches; (4) attended two years of college at
Prairie State, where he studied “psychology/mental health” and was a B student;
(5) was addicted to heroin “on and off” from 1967-73 and received treatment at an
6
outpatient methadone maintenance program from 1973-76; (6) was never
hospitalized for psychiatric reasons; (7) was an alcoholic who attended AA
meetings but stopped about two weeks before Richardson’s murder; (8) had
parents who were both alcoholics, as were Rose’s two brothers (his sister was not);
(9) worked in a plumber’s apprenticeship program in 1970-73 and 1976-77,
without completing it, and worked for several weeks as a plumber’s helper with
his uncle in 1978, but then “became a ‘beach bum’” who “only worked
sporadically at odd jobs when he wasn’t being supported by women”; (10)
reported having “blackouts” in the past; and (11) was currently serving five years
for aggravated assault.6
Dr. Slomin’s report discussed Rose’s “account of his actions on October 18,
1982.” Rose told Dr. Slomin that he: (1) “gave plasma in Clearwater and received
nine (9) dollars”; (2) “went to have some beers – 3 beers for ninety (.90¢) cents[
and] Butch [the victim] came in about the same time”; (3) “[s]hot some pool, and
missed the bus again”; (4) “[g]ot in a fight, as someone threatened Butch” and
Rose “gave him my shirt as he had lost it in the fight”; (5) [w]ent to another bar to
6
Rose described his problems with his various attorneys, explaining that he dismissed
Shipp and Eide because “they brought me to trial on aggravated assault and I was found guilty,”
that his third attorney withdrew voluntarily, and that his fourth one “had a bad attitude – I asked
him to withdraw.” Rose did not like Rouson, either. Rose told Dr. Slomin “he will speak up if
he feels he is being misunderstood or mistreated by his attorneys.”
7
shoot pool” and “began chasing someone at the end of the alley[,] . . . was hit
behind the head and nose[,] . . . was bleeding” and was handed “half a pill[,] . . .
Qualude [sic]”; (6) “heard someone talking about Butch being dead, and got into a
shower stall and put toilet paper up my nose to stop the bleeding”; and (7)
“couldn’t find Butch[,] . . . saw flashing lights, and went home.” Rose reported
that “people kept filling up my glass (with beer) – I drank quite a bit.” Rose found
out Richardson was dead when he was “at home, I was asleep and the police came
and arrested me.”
Dr. Slomin’s report described Rose’s mental state: (1) “cooperative and
lucid,” (2) “not confused, circumspect, or delusional”; (3) “no indication of
remorse,” he “denies committing the crime, and has no recollection of the alleged
offense”; (4) “oriented to person, time and place”; (5) “no signs of carelessness,
confusion or . . . malingering”; (6) has “eye/hand coordination [that] is within
normal limits”; (7) “intellectual functioning is in the average range of
intelligence”; (8) “no indication of a thought disorder”; (9) “no evidence of a
seizure disorder”; (10) “admits to blackouts in the past, but denies Delirium
Tremens”; (11) “[n]o sensory defects”; (12) “denies auditory/visual
hallucinations”; and (13) “[m]otoric behavior is within normal limits.” Dr.
Slomin’s report concluded that Rose was: (1) “free of any psychotic symptoms”;
8
(2) “aware of his behavior, but naive as to its consequences”; (3) a heavy abuser of
alcohol and drugs; and (4) “ingesting alcohol and may have been in a ‘blackout
spell’ at the time of the crime.” Dr. Slomin noted that if the “trial reaches penalty
phase, a mitigating factor may be that the Defendant was in a ‘blackout spell’ due
to excessive alcohol consumption resulting in amnesic period.” Dr. Slomin’s
“Diagnostic Impression” of Rose was “Antisocial Personality Disorder with
Alcohol Abuse.” Dr. Slomin concluded Rose was competent to stand trial and
competent at the time of the offense.
After writing his report, Dr. Slomin met with Rouson about possible
mitigating circumstances in the penalty phase. Dr. Slomin was given several files
with information on Rose’s background, family, and personal history. Dr. Slomin
received “two large attorney file folders filled with notes, background related to
previous history, background of the defendant, family members, and, . . . there
may have been some hospitalization records.” Dr. Slomin also received
information from the State Attorney’s office, including a rap sheet detailing
Rose’s prior arrests going back about ten years. Dr. Slomin and Rouson discussed
(1) an insanity defense, which they ruled out, and (2) organic brain syndrome, but
Dr. Slomin’s testing and Rose’s “recall at the time when [Dr. Slomin] spoke to him
ruled that out.” On the Bender-Gestalt Memory test, Rose correctly recalled seven
9
of nine drawings, whereas the average result is four drawings out of nine. Rose’s
performance was “inconsistent with any type of gross organic abuse as far as
memory is concerned.”
Dr. Slomin and Rouson discussed presenting a chronic substance abuse
mitigating circumstance, but decided voluntary ingestion of alcohol or drugs
would not be a good defense. Dr. Slomin suggested, and Rouson later agreed,
simply to present Dr. Slomin’s diagnosis and argue for life in prison.7 Rouson and
Dr. Slomin discussed their penalty phase options before the guilt phase began.
D. Guilt Phase
The guilt phase began June 27, 1983. The State called the witnesses to
Richardson’s murder. Catherine Bass, Melissa Mastridge, and Maryann Hutton
were sitting in front of Mastridge’s house at about 10:00 p.m. on October 18,
1982. Richardson and Rose walked down the street nearby. They obviously had
been drinking. Bass, Mastridge, and Hutton heard a noise like glass breaking,
turned, and saw Richardson lying on the ground. Rose walked into a vacant lot
and looked for something in the weeds. Rose picked up a concrete block and
7
Dr. Slomin and Rouson believed the antisocial personality disorder testimony was
mitigating because they could explain Rose’s behavior and then show the jury that Rose would
function well in a prison environment and not need to be executed. Although the antisocial
personality disorder diagnosis was “not . . . the best diagnosis to have,” Dr. Slomin thought it
would be better to be forthright with the jury.
10
returned to Richardson, who was lying on the ground. Rose raised the block
above his head and threw it down on Richardson’s head. It made a “thunk” sound
as it hit, and Richardson rolled a bit to the side. Rose picked up the block again,
raised it over his head, and again pitched it down on Richardson. Rose continued
retrieving the block and pitching it down on Richardson, seven or eight times.
Mastridge ran to Carl Hayword’s house to call the police.
Hayword testified that Mastridge came and told him someone was hitting
somebody with a block. Hayword told his wife to call the police. Hayword went
outside and saw Rose standing over Richardson, holding the block over his head.
Hayword yelled out to Rose, who looked over, dropped the block, and ran away.
Hayword and Bass drove around looking for Rose but did not find him.
Medical examiner Dr. Donna Brown testified that Richardson had injuries
to his face and head, including lacerations on the left side of his head, abrasions on
the right side of his face, a tear in his lip area, and many skull fractures. The bones
housing Richardson’s eyes were fractured and pushed backward and down into his
head. The front part of Richardson’s brain was torn. Richardson’s injuries were
consistent with being struck in the head five to six times with a concrete block.
Richardson’s head and brain injuries caused his death. Richardson had blood in
his lungs, indicating he did not die from the first blow but lived a few minutes
11
afterward. Richardson had a .19 blood alcohol level.
Mark Poole and Becky Borton, two acquaintances of Rose, testified they
had been living with Rose at Barbara Richardson’s house for two or three weeks.
Shortly after 10:00 p.m. on October 18, 1982, Poole and Borton were returning
home in Poole’s pickup truck when they saw Rose hitchhiking three or four blocks
from where Richardson was killed. Poole and Borton saw fire trucks and
ambulances right before they saw Rose. Poole and Borton picked Rose up and
drove him home. Rose told them he had just killed Butch Richardson. Poole
thought Rose was joking. Rose replied, “I’m serious. I just killed Butch. I picked
up a brick and I smashed his head in, into mush. If he’s not dead, he’s a
vegetable.” Poole did not believe Rose because he “was so calm. He wasn’t
shaking. There was nothing, you know. Just like he always was.” Rose did not
appear to be drunk. Poole asked Rose why he killed Richardson, and Rose said,
“[be]cause I was angry at him.”
Rose asked Poole and Borton where they had been that night, and after they
told him, Rose said that he would say he was there, too. When they got home,
Poole and Borton saw blood on Rose’s nose and hand. Rose said he got in a fight
with another hitchhiker.
Detective Peter Fire arrested Rose the morning after the murders based on
12
information from eyewitnesses and other police officers. Detective Fire read Rose
his Miranda rights and interviewed him. Rose admitted that he and Richardson
were out drinking together the night before. Rose said he broke up a fight
between Richardson and another man, in the course of which Rose was punched in
the nose and got blood on himself. Rose could not say how the fight caused him
to get blood on his shirt, arms, and legs. Afterward Rose went to a girl’s
apartment with Poole and Borton. Poole drove them all home. Detective Fire
confronted Rose with Poole’s and Borton’s statements that they picked him up
hitchhiking. Rose said they were liars.
The State rested. The defense presented no evidence. The jury found Rose
guilty of first-degree murder.
E. Final Penalty Phase Preparations
The guilt phase ended on a Thursday. At Rouson’s request, the state trial
court continued the penalty phase until Tuesday. In the meantime, Rouson spoke
again with Rose, Dr. Slomin, and Barbara Richardson, jail social worker Josephine
Singletary, and fellow attorneys, including veteran defense attorneys Ronald Eide
and Pat Doherty. Rouson researched the penalty phase jury instructions and
prepared his direct examinations. Rouson discussed specific mitigating and
aggravating circumstances with Dr. Slomin and showed him related jury
13
instructions. Rouson suggested to Rose “that he should take the stand in the
penalty phase and describe himself, tell the jury about himself.”
After the guilty verdict, Rose still did not change his mind and permit
Rouson to present a defense that would look into his mental problems at the time
of the offense. Rouson was “still trying to walk the line between [Rose] saying he
wasn’t there, he didn’t do it, and between trying to throw in these issues of
intoxication and insanity, which would put him there.” Rouson elaborated:
[Rose] said he wasn’t there. So it didn’t matter a whole lot,
intoxication or insanity, because he wasn’t there. That’s what my theory
of defense was. That was what I worked on. That’s what I worked
towards. That’s what he wanted me to do. That’s – when I looked at the
evidence, I wanted to project to the jury.
In the penalty phase I tried to maintain that tight rope and it was
tough. But I still wanted them to think that he was innocent and that
they wrongfully found him guilty; therefore, they shouldn’t sentence
him to death, but life. But I tried to throw in the intoxication and
insanity. To me that was a tough juggling act to do. I thought I walked
the rope pretty good.
So I couldn’t hammer away at it necessarily, because I didn’t want
to concede to them and I didn’t want to project to them that, yeah, he did
it; he did it, but you ought to consider this.
F. Penalty Phase
The penalty phase began on Tuesday, July 5, 1983. The State introduced
certified copies of Rose’s prior convictions. In 1968, at age 18, Rose pled guilty
to robbing a woman in Lake County, Illinois and was sentenced to one to ten years
14
in a reformatory. In 1979, Rose pled guilty to an aggravated battery in Cook
County, Illinois for beating a man with nunchakus, pool sticks, and beer bottles
and was sentenced to four and a half years in prison. At the same time, Rose pled
guilty to burglary and was sentenced to four and a half years in prison.
Rose was paroled in Illinois and absconded from parole. Michael Craft, an
investigator with the Illinois Department of Corrections, testified that on April 29,
1981, a parole violation warrant issued for Rose. The Illinois warrant was
outstanding (1) on March 29, 1982, when Rose assaulted a man named Tommy
Walker in Florida, and (2) on October 18, 1982, the day Rose murdered
Richardson in Florida.
In the penalty phase, the State called Walker to testify about the March 1982
aggravated assault. Walker was driving home when he saw another car bump a
car that was in front of it three or four times. Rose and another man got out of the
rear car and “started beating on” a man in the front car. Walker stopped his car
and called out to the men, who told him to go back to his car. Walker refused.
Rose and the other man advanced on him. Walker got a tool out of his car to
defend himself. Rose threw a three- or four-inch long pipe at Walker, hitting him
in the neck. Rose took a drywall hatchet out of Walker’s car. Rose, the other
man, and the driver of Rose’s car advanced on Walker. Walker tried to run, but
15
fell. Rose and the others beat Walker. Walker suffered a head injury and broken
arm, and was out of work for two and a half months. In November 1982, Rose
was convicted of aggravated assault against Walker and was sentenced to five
years in prison.
After the State rested, Rose called Dr. Slomin, who testified he was a
clinical psychologist with experience counseling persons with alcohol abuse
problems. For about three and one-half hours, Dr. Slomin examined Rose and
interviewed Rouson and the prosecutor for information about Rose’s background,
history, and alleged offenses. Dr. Slomin learned Rose’s parents and brothers
were alcoholics. Dr. Slomin opined that Rose may have had an alcoholic
“black-out spell” at the time of Richardson’s murder. Dr. Slomin explained that
an alcoholic black-out spell is an amnesia state (i.e., the loss of consciousness or
short-term memory) due to excessive alcohol consumption.
Dr. Slomin administered the Rorschach Ink-Blot Test to Rose and all of
Rose’s responses were within normal limits. Rose’s “precepts were of a normal
intelligent, by the way, bright individual.” Dr. Slomin saw no delusions, no
aggression, and no hostility. Most of Rose’s responses “would be what was
considered appropriate responses.”
Dr. Slomin diagnosed Rose with antisocial personality disorder and
16
explained how persons with this disorder functioned adequately in prison. Having
treated persons with antisocial personality disorder, Dr. Slomin opined that in a
prison environment, Rose “would be able to function . . . adequately because his
peers and his colleagues, many of them, will have the same type of disorder or
personality and they relate well with one another.” Dr. Slomin saw “no bad
consequences” of Rose being in a jail setting.
On cross-examination, Dr. Slomin acknowledged that Borton and Poole
testified that Rose told them he killed Richardson and tried to get them to help him
establish an alibi. Dr. Slomin admitted that such conduct would not be consistent
with a person who suffered an alcoholic black-out. It would be consistent with
antisocial personality disorder, however.
Rose called Josephine Singletary, a social worker in the local jail, who
testified Rose was in her group counseling sessions for the last three months.
Rose participated fully in the sessions and “did a lot of reevaluating.” Singletary
believed Rose had “made the appropriate adjustment” to living in the jail
environment and she was not aware of any negative reports of Rose’s behavior.
Rose called Barbara Richardson, the victim’s mother. Barbara Richardson
loved Rose and he had been like a husband to her. She said Rose: (1) was “a very
good person”; (2) “taught me a lot, [about] survival, not to be selfish, not to be self
17
centered”; (3) “[t]aught me to be a woman”; and (4) “is a beautiful person.” Rose
attended Alcoholics Anonymous when he met Barbara, and was faithful in
attending. Rose stopped living with Barbara a couple of times so he could try to
get his life in order. Rose felt Barbara was not supportive of his efforts to reform
his life.
Barbara Richardson also testified that her son, the victim, tried to kill her
with a gun. Defense counsel Rouson asked Barbara whether Rose had ever “come
to your defense or to your aid when engaged in any altercation or fight with your
son.” Barbara replied, “When I was in the hospital in the Intensive Care Unit, he
was there twice a day. As far as my son, [Rose] loved my son.” Rose tried to
help her son a number of times. But Richardson was jealous of Rose, and Rose
felt threatened by him. On cross-examination, Barbara admitted she did not
believe Rose killed her son.
Rose testified at the penalty phase. Rose admitted he was an alcoholic, he
sought treatment for his alcoholism, and knew there were “negative influences that
I get involved in when I am drinking.” Rose was the chairman of the Jail Alcohol
Program that met weekly. Rose was very supportive of this program, was active in
the jail’s church, began a nightly prayer group, was taking a Bible study course,
passed out Bibles to new prisoners, and was active in Singletary’s counseling
18
group.
Rose testified that he loved the victim Butch Richardson, had helped him,
and was not a selfish person or a killer, but that alcohol “got[] [him] into a lot of
negative environments.” Rose testified that he did not kill Richardson, did not
deserve to die, and wanted to live. On cross-examination, Rose admitted that he
was on parole and had absconded.
Rose listed his occupation as a plumber, but he worked only one month in
the two years before his arrest. During most of that period, Rose lived with
Barbara Richardson. At some point, Butch Richardson started living with Rose
and Barbara. Rose and Richardson “had differences of opinions.”
The defense rested. The State, in rebuttal, called probation officer Patricia
Tastis, who interviewed Rose for a presentence report (“PSI”) for Rose’s 1982
aggravated assault conviction. Rose falsely told Tastis he had never been married
and had no children. After deliberating, the jury recommended a sentence of death
by a 9-3 vote.
G. Sentencing and Direct Appeal
At sentencing, the PSI stated that Rose was the “oldest of 4 children born to
19
Edward Rose . . . and Mary Rose,” who lived in Holiday, Florida.8 Rose reported
that he: (1) “was raised by his parents who were both alcoholics and he
experienced physical and mental abuse”; (2) was born and raised in Chicago,
Illinois, and moved to Florida in 1980; (3) graduated high school and attended
Prairie State Junior College for two years; (4) was a plumber and attended trade
school through a plumbers union; (5) “has never been married and has fathered no
children”; (6) lived with Barbara Richardson for about sixteen months, and before
that lived with his parents for about three months; (7) is a Christian; (8) “drinks
beer on a daily basis, as much as he can and is currently attending AA”; (9) first
smoked marijuana when he was 21 years old and last smoked it around July 1982;
(10) did not use other illicit drugs; (11) was hospitalized for eight days after being
injured in a 1982 car accident; and (12) worked for about one month in the
previous two years because “his girlfriend [Barbara Richardson] did not want him
to work.”
On July 8, 1983, the state trial court sentenced Rose to death. The state trial
court found three statutory aggravating factors: (1) Rose committed the murder
8
The state trial court informed counsel that it had the PSI from Rose’s 1982 aggravated
assault conviction against Walker and that because Rose had been in custody continuously from
the time that PSI was prepared, nothing would be gained by updating the PSI. The State and
Rouson agreed.
20
while under a sentence of imprisonment; (2) Rose was convicted, before the
murder, of violent felonies (robbery, aggravated battery, and aggravated assault);
and (3) Rose committed the murder in a cold, calculated, and premeditated
manner, with no pretext of legal or moral justification. The state trial court found
no statutory mitigating factors. As to non-statutory mitigating factors, the state
trial court found there were “none, except the bare assertion by Barbara
Richardson, the mother of the victim and [Rose’s] lover, that [Rose is] a good
person . . . [and] didn’t or couldn’t do this.” The state trial court noted that “[t]he
evidence is overwhelmingly to the contrary.”
The Florida Supreme Court affirmed Rose’s murder conviction and death
sentence. Rose v. State, 472 So. 2d 1155, 1156 (Fla. 1985) (“Rose I”). Rose’s
counsel filed a certiorari petition with the United States Supreme Court, but at
Rose’s request, Rose’s counsel withdrew the petition before it was ruled upon.
H. Rule 3.850 Motion and Evidentiary Hearing
In 1987, Rose filed a Florida Rule of Criminal Procedure 3.850 motion for
postconviction relief. As amended, Rose’s 3.850 motion claimed that trial counsel
Rouson was ineffective for failing to investigate and present mitigating evidence
at the penalty phase. In 1988, the state trial court (the same judge at Rose’s trial)
held a four-day evidentiary hearing. As already set forth above, Rouson testified
21
about his penalty phase investigation and presentation. Because Rose claims
Rouson should have called his two cousins and his brother as mitigation
witnesses, we now review their 3.850 testimony in detail.
1. Cousin Linda Kravec
Linda Kravec, Rose’s cousin, testified that she knew Rose’s parents and saw
Rose about once or twice a year growing up. Rose’s mother “was a very
domineering person,” “had a bad temper,” “drank a lot,” and was “known to cuss
everyone and anyone.” She called Rose and his cousins “no-good sons-of-
bitches,” “bums,” and “no-goods.” Rose’s mother verbally abused Rose whenever
she drank or was angry. Several members of Rose’s family had drinking
problems. Rose’s parents more than once slapped him when he did not do what he
was supposed to. Rose’s parents were not supportive of him and “[i]t was like . . .
[Rose] was being ridden all the time.”
Kravec was not contacted by Rouson, but would have been willing to
testify. On cross-examination, Kravec admitted that, until she began visiting Rose
after he was sentenced to death, she had not seen Rose for more than fifteen years.
Kravec was not aware at the time of Rose’s trial that he was a parole absconder.
Kravec admitted Rose’s family was not close, and it would be fair to say they
might not be inclined to help Rose even if asked to do so.
22
2. Brother David Rose
David Rose, the brother, testified Rose left home when he was about 15
years old and David was 8 or 9. Rose was raised by his mother and his stepfather,
who was the biological father of David and his other siblings. Rose’s mother and
stepfather drank and argued frequently. A few times, they would physically fight,
and the children would hide. Rose’s mother and stepfather would go out to drink
at bars and leave Rose in charge of the children. Rose was a good babysitter and
looked after David and his siblings.
David, like his parents and his brothers, has a drinking problem. David
testified,“something always happens when I start drinking; I start arguing and
fighting. It just takes the first one.” Rose, like David, had trouble stopping once
he started drinking.
Rose’s mother was the disciplinarian of the family. She “would always send
us to the basement and come down there and beat us.” The beatings left bruises.
Rose’s mother did not show the children affection and “used to hit us for losing
fights, too, when we were younger. . . . If somebody beat us up, she would hit us
and tell us to go out there and hit them back.” Rose’s stepfather did not have
much to do with the kids. David could not recall Rose’s stepfather ever telling
David or Rose that he cared about them.
23
Sometimes Rose’s stepfather did not buy the children food for a couple of
weeks while he was arguing with Rose’s mother, and the children had to eat at the
neighbors’ house or wherever they could find food. Sometimes Rose’s stepfather
would leave for days at a time when he was fighting with Rose’s mother. David
testified his parents “fought a lot, but they tried.”
David recalled Rose being bedridden with rheumatic fever. Other children
would talk about Rose being sickly and dark-complected. Rose was sensitive
about it. Rose began drinking about age 15 or 16 years, which David recalled
because Rose got drunk and fought their stepfather. Shortly after that, Rose left
home for reform school.
When Rose was drinking, he “would be all right for a while, and then he
would start getting rowdy. You couldn’t say nothing bad to him.” Rose, when
drinking, “was the kind of guy that always tried to get the first punch in.” Rose
was different when he was not drinking. When sober, Rose was “more into books
and stuff” and needed to be provoked to get into a fight.
Rose used “acid, crystal methadrene [sic], speed, marijuana, alcohol;
whatever everybody else was [doing].” About 13 or 14, Rose was caught sniffing
glue. Rose was hospitalized for hepatitis that he got from a dirty heroin needle.
Rose was pistol-whipped in the head once. Rose was in a car accident that sent
24
him to the hospital and “messed [him] up real bad.”
Rose married and had two kids. David used to babysit Rose’s children.
Rose was a good father who took his children to the library and taught them
things. Rose was a good brother to David. Rose, who was seven years older than
David, tried to act as a father figure, taking him fishing and sticking up for David.
David testified his mother was greatly affected by a car accident before
Rose’s trial. She had broken bones in her head and impaired hearing. Since the
accident, she is “pretty fragile” and does not handle stress well. David did not
think she could handle coming to testify.
David had no contact with Rouson, but would have testified at Rose’s trial.
David knew nothing about Rose’s trial except what he read in the newspaper. On
cross-examination, David admitted he did not try to contact Rose’s attorney during
the trial because David was in trouble for aggravated battery. David reiterated that
Rose was a violent person when drinking or using drugs, and that Rose drank or
used drugs regularly. David’s aggravated battery conviction and Rose’s
aggravated assault conviction stemmed from a violent encounter (the attack on
Tommy Walker) in which both Rose and David participated. David agreed that
Rose’s family did not think well of Rose.
3. Cousin Cheryl Stark
25
Cheryl Stark, Rose’s cousin and Kravec’s sister, testified that Rose’s parents
were alcoholics, as were her parents. When drinking, their parents would become
“very irritable with the children.” Rose’s mother was “real strict about the way the
kids behave” and believed “children are to be seen and not heard at all.” Stark
was not around much when Rose was growing up. When Stark did see them,
Rose’s mother “would always be really angry and irritable with [Rose].” Stark
“only [saw Rose’s mother] be verbally abusive of any of her children when she
was drunk, but she was drunk most of the times [Stark] saw her.” Rose’s mother
called her children names like “no-good bums,” “son-of-a-bitches,” or “bastards.”
Rose’s mother acted that way if the children did “[l]ittle things like if the kids
didn’t want to be hugged or kissed when she would come in from drinking and
they would try to pull away.” Sometimes there was no provocation at all.
Rose’s stepfather deferred to Rose’s mother, but he also drank a lot and was
verbally abusive to the children. Rose’s stepfather would get in arguments and
“just rant and rave most of the time.”
4. Dr. Harold Krop
Rose’s postconviction counsel retained forensic psychologist Dr. Harold
Krop to evaluate Rose. Dr. Krop spent about seven to eight hours with Rose
interviewing him and giving these tests: the Wechsler Adult Intelligence Scale
26
(“WAIS”), the revised version of the Wechsler memorization test, the facial
recognition test, the Bender-Gestalt test, the Ray auditory memory test, and a
malingering test. Dr. Krop did not see evidence of malingering. Dr. Krop
interviewed members of Rose’s family9 and reviewed Dr. Slomin’s testing data,
Rose’s trial transcript, the PSI, and the postconviction pleadings.
Dr. Krop testified that Rose: (1) had “an extremely unstable background”;
(2) was not raised by his biological father; (3) had alcoholic parents; (4) suffered
“considerable emotional abuse” of a verbal nature and “some physical abuse”; (5)
“was viewed as different by his parents” and called “their nigger” and “the black
sheep of the family” and subjected to other “derogatory and critical statement[s]”;
(6) “was a very sickly child” who had rheumatic fever and was hospitalized for
high fever and convulsions; (7) was the product of a difficult forceps delivery; (8)
had a nail driven into his skull at age 7 or 8; (9) was “fairly popular in school,”
“participated in various athletic activities,” and “associat[ed] with . . . the jocks or
athletes in the school”; (10) began drinking and using drugs and sniffing glue
around age 12, developing “a chronic pattern of drug . . . and alcohol abuse”
including heroin addiction; (11) received treatment in a residential drug abuse
program for three months, substituting methadone for heroin addiction and
9
Rose’s lawyers told Dr. Krop that Rose’s mother refused to talk to him or to testify.
27
requiring in-patient or residential treatment; (12) participated “on an intermittent
basis in AA”; (13) had no history of psychiatric treatment or mental illness; (14)
quit school in tenth grade and was not allowed to join the military; (15) “started
getting into criminal trouble” around age 16 or 17, and was first jailed about that
time, beginning “a vicious circle” of “illegal and anti-social activities,” usually
associated with drinking or drug abuse; (16) had one job for about three years;
(17) was married once and had two children; and (18) had “a very heavy and
intense involvement with” Barbara Richardson that was “a pathological
relationship” that “precipitated his not working” or attending AA.
Dr. Krop testified that Rose had average intelligence, with a verbal IQ of 97,
a performance IQ of 100, and a full-scale IQ of 98. However, Rose showed
significant deficits in certain WAIS sub-tests involving recall, concentration, and
social judgment. Rose did poorly on the facial recognition test, which is
“consistent with a diagnosis of brain damage.” Based on the neuropsychological
findings, Dr. Krop concluded there was “some evidence . . . of some degree of
organic brain damage.” However, Dr. Krop found it difficult to determine the
nature of the brain damage. Dr. Krop opined there “is minimal brain damage
existing, most likely in the right temporal lobe area, but that would need to be
documented further in neurological and objective types of testing.” As to why
28
Rose was possibly brain damaged, Dr. Krop said there were several possibilities,
noting Rose’s forceps delivery, the nail driven into his head, the high fever, and
the chronic substance abuse.
Dr. Krop agreed with Dr. Slomin that Rose was competent to stand trial and
was not insane at the time of the crime, and that no statutory mitigating
circumstances applied. Dr. Krop diagnosed Rose as a “chronic alcohol abuser,
possibly with a dependent personality disorder.” To make that diagnosis, Dr.
Krop would need more information about Rose’s relationships with his parents,
wife, girlfriend, and friends. Dr. Krop testified that “essentially the most primary
diagnosis would be organic brain syndrome and, also, the chronic alcohol and
drug abuse.”10
Dr. Krop found significant that Rose made efforts to rehabilitate himself, for
example by going to AA meetings voluntarily. Dr. Krop added that Rose even in
jail and on death row “has not been a management problem” and “made efforts to
cope by doing constructive kinds of things, [such as] writing poetry, letters, and he
seems to be making an effort to rehabilitate himself within the [prison]
10
Dr. Krop concluded that he could not diagnose Rose as having antisocial personality
disorder. Although Rose exhibited antisocial behavior, Dr. Krop lacked information confirming
that Rose engaged in the required antisocial behaviors before age 15.
Dr. Krop lacked access to Rose’s juvenile record or school records prior to high school.
The family members Dr. Krop spoke to were more familiar with Rose’s parents than they were
with Rose, and they “did not have . . . much direct contact with [Rose].”
29
restrictions.”
Dr. Krop opined that Rose did not satisfy any of the statutory mitigating
factors.11 Dr. Krop did not believe Rose “was severe or extreme in terms of mental
disturbance,” for example. However, Dr. Krop opined that several non-statutory
mitigating circumstances applied, including Rose’s: (1) abusive and neglectful
upbringing by cold, uncaring, alcoholic parents; (2) being a sickly child viewed as
different, leading to “an inadequate self-concept”; (3) alcohol and drug abuse; (4)
organic brain syndrome with “at least minimal brain damage”; (5) intoxication at
the time of the murder; (6) recognition of his alcoholism and attempts to
rehabilitate himself; and (7) ability to function in a prison environment. As to
statutory aggravating factors, Dr. Krop was unable to reach a conclusion on
whether the crime was cold, calculated, and premeditated.
Dr. Krop’s conclusion as to Rose’s intoxication at the time of the murder
was based on Rose’s self-report that he had 20 or more beers that day. Dr. Krop
acknowledged that “the more a person lies regarding anything, the more difficult it
is to make an accurate diagnosis” of that person. Dr. Krop admitted that Rose “has
given inconsistent information to various people” about his background, including
11
For example, although Dr. Krop believed, based on Rose’s self-report, that Rose was
intoxicated at the time of Richardson’s murder, Dr. Krop did not believe Rose’s intoxication
amounted to an extreme mental disturbance for statutory mitigation purposes.
30
his marital status, parole status, criminal history, academic background, and
whether he had suffered head injuries. With Dr. Krop, Rose maintained he was
innocent of Richardson’s murder.
5. Dr. Vincent Slomin
At the 3.850 hearing, Dr. Slomin maintained that his diagnosis in his June
24, 1983 report was still correct. Dr. Slomin reviewed the results of the WAIS test
that Dr. Krop administered to Rose, and Dr. Slomin found the results were not
enough to make a definitive diagnosis of organic brain damage. Dr. Slomin said
some of the depressed scores on different subparts of the test could be explained
by the circumstances surrounding the test taking, such as the subject’s feelings of
anxiety or depression and his education level. Moreover, Rose’s score on the
similarities sub-part of the test, which measures the ability to analyze and
synthesize given information, was “in the very superior range of intelligence” that
was “comparable to an area of 132 or 135 in the IQ range.” Such a result “is not
consistent with the person who has an organic brain disorder.” Dr. Slomin knew
Rose suffered head injuries, but even with those, Rose’s test results and level of
functioning were not indicative of brain damage.
6. Dr. Robert Fox
Rose’s postconviction counsel had forensic psychiatrist Dr. Robert Fox
31
evaluate Rose. In 1988, Dr. Fox interviewed Rose and reviewed background
information. Dr. Fox testified that ideally his interview and examination should
take between four and six hours, but he interviewed Rose for “only approximately
an hour or a little bit more.” Dr. Fox’s only psychiatric diagnosis “with firm
certainty” was that Rose “suffers from chronic and acute . . . alcohol abuse and
intermittent alcohol intoxication.” Rose’s only extended period of sobriety was
when incarcerated.
As to Rose’s mental status, Dr. Fox found that Rose was oriented and his
long-term memory was intact “except for those periods of time when he was
suffering alcoholic blackouts.” Other tests of the organic functioning of Rose’s
brain suggested “soft-signed organic impairment in . . . the area of concentration
and the area of short-term memory.” Dr. Fox found Rose’s impairments to be
“most consistent with an individual who has a long history of alcohol and drug
abuse and who has sustained a number of severe head injuries.”
Dr. Fox believed there were two statutory mitigating circumstances: (1)
Rose was in a state of extreme mental or emotional disturbance at the time of the
crime because of his alcoholism and intoxication, and (2) Rose’s ability to form
specific intent was impaired by intoxication. Rose told Dr. Fox he probably drank
more than 20 beers the day of the murder, as well as smoking marijuana and taking
32
a pill believed to be a Quaalude. The eyewitnesses assumed Richardson and Rose
were drunk.12 Dr. Fox admitted he did not know Rose’s intoxication level.
Dr. Fox found these non-statutory mitigating factors: (1) Rose grew up in an
“extraordinarily disrupted” family; (2) the identity of his father was in dispute; (3)
Rose’s appearance differed from other family members, leading to his being
ridiculed in school; (4) Rose was abused by his stepfather; (5) Rose began using
drugs around age 12 or 13; and (6) Rose was in a number of relationships that
“present a picture of an individual who was tied to others by the inadequacies
beginning with the abuse in his early childhood.”13 Dr. Fox could not rule out that
Rose had antisocial personality disorder, and admitted that whether Rose had
antisocial personality disorder was “an open point.”
Dr. Fox’s tests of Rose suggested the possibility of organic brain syndrome.
Based on Dr. Fox’s one-hour examination, there “was evidence of a mild organic
brain symptom,” but Dr. Fox “did not feel that it was strong enough to make [the
12
Dr. Fox opined that intoxication impaired Rose’s ability to act in a cold, calculated, and
premeditated manner.
13
Dr. Fox believed that Rose was in an alcoholic black-out episode at the time of the
murder, based only on Rose’s claim not to remember the events of that evening and despite
Poole’s and Borton’s testimony that Rose was not intoxicated when they drove him home after
the murder. But Dr. Fox admitted that even in an alcoholic blackout state, someone may be
perfectly capable of thinking rationally and forming an intent to kill. Dr. Fox was “not suggesting
that the blackout is a mitigating circumstance.”
33
diagnosis], even at the level that I found it.”14
I. 3.850 Denial and Appeal
In 1990, the state trial court denied Rose’s 3.850 motion. The state trial
court found that Rose had not met his burden of establishing either deficient
performance or prejudice. Regarding performance, the state trial court reasoned
(1) that Rouson was Rose’s fifth attorney and was appointed less than three
months before trial, and (2) Rose “did not wish to waive his right to a speedy trial”
and Rouson “of necessity . . . had to rely more on direction given him by his
client.” Regarding prejudice, the state trial court found Dr. Fox’s conclusions
unworthy of belief and remained confident Rose would have been sentenced to
death even if all 3.850 witnesses had testified.
The Florida Supreme Court affirmed the denial of Rose’s 3.850 motion.
Rose v. State, 617 So. 2d 291 (Fla.1993) (“Rose II”). As to mitigation evidence,
the Florida Supreme Court reviewed the procedural history and concluded that
Rouson had limited time to prepare for trial due to Rose’s own actions. Id. at 293.
The court also summarized Rouson’s testimony:
14
Rose’s postconviction counsel submitted an affidavit from Rose’s mother Mary Rose,
who did not testify at the 3.850 hearing. While Mary Rose’s affidavit gave similar background
information about Rose’s alcohol and drug problems, sickly childhood, and his running away at
age 16, her affidavit notably does not state that she would have testified at trial.
34
[Rouson] testified below that at the guilt phase of trial, Rose
insisted on presenting the defense that he was innocent and was not
present at the scene of the murder. Against [Rouson]’s advice, Rose
would not allow counsel to pursue other defenses such as insanity or
intoxication. According to [Rouson], Rose did not change his posture at
the penalty phase. “When a defendant preempts his attorney’s strategy
by insisting that a different defense be followed, no claim of
ineffectiveness can be made.” Mitchell v. Kemp, 762 F.2d 886, 889
(11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S. Ct. 3248, 97 L. Ed.
2d 774 (1987). [Rouson] testified that once the case reached the penalty
phase, he tried to raise issues of insanity, intoxication, and lack of
specific intent to the extent possible while still maintaining Rose’s
innocence.
Rose II, 617 So. 2d at 294. In light of this evidence, the Florida Supreme Court
concluded that “[g]iven the limitations placed on him by Rose, [Rouson] made
reasonable tactical decisions with respect to the presentation of mitigating
evidence.” Id. The Florida Supreme Court cited Jones v. State, 528 So. 2d 1171,
1175 (Fla. 1988), where it had held that an attorney who had argued his client was
innocent in the guilt phase made a “reasonable tactical decision in not calling [a]
psychiatrist to testify at [the] penalty phase that [the] defendant was paranoid
[because] counsel concluded that the testimony would destroy the defense’s
credibility with the jury and would not harmonize with other mitigating evidence.”
Rose II, 617 So. 2d at 294.
The Florida Supreme Court found that Rouson (1) conducted a reasonable
investigation into alcoholism- and intoxication-based mitigating evidence; (2)
35
“made reasonable tactical decisions with respect to the existing mitigation”; and
(3) “discussed potential mitigating factors with Dr. Slomin” before the penalty
phase. Id. The court pointed out: (1) “Dr. Slomin diagnosed Rose as suffering
from antisocial personality disorder with alcohol abuse”; and (2) “ruled out the
possibility of organic brain syndrome because of the results of testing and because
of Rose’s recall of the events on the night of the murder.” Id. The court found
Rouson and Dr. Slomin “determined that the best course of action was to present
the facts to the jury and argue that a person with antisocial personality disorder
could function well in prison and should not be executed.” Id.
The Florida Supreme Court reviewed the expert testimony and concluded
that the state trial court did not abuse its discretion when it rejected Dr. Fox’s
opinions as far-fetched and not credible. Id. at 293-94. The court noted that Dr.
Krop (1) diagnosed Rose with chronic drug and alcohol abuse and minimal brain
damage, (2) found no statutory mitigating factors, but (3) found these non-
statutory mitigating factors: an abusive, neglected childhood environment with
alcoholic parents, he was a sickly child “viewed as different by his parents, peers,
and himself,” and intoxication at the time of the murder. Id. at 293.
As to prejudice, the Florida Supreme Court concluded that there was no
reasonable probability of a different sentence if Rouson had presented the
36
alcoholism and intoxication evidence from the 3.850 hearing. Id. The court
stressed that (1) “[t]he jury was aware of most of the nonstatutory mitigation
brought out by Dr. Krop”; (2) Dr. Slomin told the jury in the penalty phase that
Rose’s parents and brothers were alcoholics and “that Rose may have been in an
alcoholic blackout at the time of the offense”; and (3) the jury knew “that Rose
was an alcoholic” and “had consumed a substantial amount of alcohol prior to the
murder.” Id.
Finally, the Florida Supreme Court found that Rouson was not ineffective
for not presenting this evidence from Rose’s cousins and brother—that “Rose’s
parents were alcoholics and were verbally abusive,” Rose’s mother was physically
abusive, Rose had “a chronic drinking problem,” Rose had rheumatic fever as a
child, and “other children picked on Rose because of his dark complexion”—
because Rose was 32 years old when he murdered Richardson. Id. The Florida
Supreme Court noted that (1) Rouson did not contact Rose’s family because Rose
told him the family would be not helpful, (2) “one of the cousins admitted that she
saw Rose’s family only once or twice a year as she was growing up” and had no
contact with Rose for more than twenty years before 1987, and (3) Rose’s brother
“admitted that Rose is a violent person when he is drinking or on drugs and that
this has been a continuous pattern since childhood.” Id. at 294-95. The Florida
37
Supreme Court concluded that “[i]n light of the harmful testimony that could have
been adduced from Rose’s brother and the minimal probative value of the cousins’
testimony, we are convinced that the outcome would not have been different had
their testimony been presented at the penalty phase.” Id. at 295.
The United States Supreme Court denied Rose’s certiorari petition. Rose v.
Florida, 510 U.S. 903, 114 S. Ct. 279 (1993).
J. Federal Habeas Proceedings
Rose filed his 28 U.S.C. § 2254 federal habeas petition on July 19, 1993.
The district court stayed Rose’s case for several years to await, among other
things, the outcome of additional state court proceedings.15 On March 19, 2010,
the district court denied Rose’s § 2254 petition and later denied Rose’s motion for
a certificate of appealability (“COA”). This Court granted Rose a COA as to a
single issue only: “Whether Petitioner Rose received ineffective assistance of trial
counsel in the penalty phase as a result of trial counsel’s alleged failure to
investigate and present mitigation evidence.”
II. STANDARD OF REVIEW
15
In December 1996, Rose filed in Florida state court a successive 3.850 motion to vacate
his death sentence, alleging among other things that the State withheld material exculpatory
evidence and public records he had requested. In February 1999, the state trial court denied
Rose’s successive 3.850 motion without an evidentiary hearing. The Florida Supreme Court
affirmed. Rose v. State, 774 So. 2d 629 (Fla. 2000), overruled by Guzman v. State, 868 So. 2d
498, 506 (Fla. 2003).
38
Rose filed his § 2254 petition before the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), so pre-AEDPA law
governs. Puiatti v. McNeil, 626 F.3d 1283, 1307 (11th Cir. 2010). We review de
novo the district court’s denial of Rose’s § 2254 petition, as well as all the district
court’s subsidiary legal conclusions and all mixed questions of law and fact.
Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir. 2003). We review the district
court’s factual findings under a clearly erroneous standard. Id. “Whether a
defendant received ineffective assistance of counsel is a mixed question of law
and fact, and we therefore review it de novo.” Id.
We also review de novo the state courts’ resolution of questions of law or
mixed questions of law and fact. Puiatti, 626 F.3d at 1307. A presumption of
correctness applies to factual findings made by state trial and appellate courts. Id.;
Turner, 339 F.3d at 1273. “‘This deference requires that a federal habeas court
more than simply disagree with the state court before rejecting its factual
determinations. Instead, it must conclude that the state court’s findings lacked
even fair support in the record.’” Id. (quoting Marshall v. Lonberger, 459 U.S.
422, 432, 103 S. Ct. 843, 850 (1983)).
III. DISCUSSION
A. Ineffective Assistance of Counsel: Legal Standards
39
To prove ineffective assistance of counsel, Rose “must show both (1) ‘that
[his] counsel’s performance was deficient,’ and (2) ‘that the deficient performance
prejudiced the defense.’” DeYoung v. Schofield, 609 F.3d 1260, 1283 (11th Cir.
2010) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984)), petition for cert. filed (U.S. Jan. 14, 2011) (No. 10-8456, 10A451).16
The performance prong always entails a deferential review of counsel’s
conduct. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1240 (11th Cir.), cert.
denied, 131 S. Ct. 177 (2010); see Premo v. Moore, 562 U.S. —, 131 S. Ct. 733,
740 (2011) (“Even under de novo review, the standard for judging counsel’s
representation is a most deferential one.”). “[T]o establish deficient performance,
a defendant must show that his counsel’s conduct fell below an objective standard
of reasonableness in light of prevailing professional norms at the time the
representation took place.” Reed, 593 F.3d at 1240 (quotation marks omitted).
“In assessing the reasonableness of counsel’s performance, courts must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. (quotation marks omitted). “To overcome
16
We note that the only claim before us in this appeal concerns whether trial counsel
Rouson was ineffective for failing to investigate and present certain mitigation evidence. Rose
has not raised, and the COA does not extend to, any claim of ineffectiveness as to any of the
evidence that Rouson did present at the penalty phase.
40
Strickland’s presumption of reasonableness, [Rose] must show that ‘no competent
counsel would have taken the action that his counsel did take.’” Allen v. Sec’y,
Fla. Dep’t of Corr., 611 F.3d 740, 751 (11th Cir. 2010) (quoting Chandler v.
United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc)), petition for cert.
filed (U.S. Feb. 14, 2011) (No. 10-9202, 10A524); accord Harrington v. Richter,
562 U.S. —, 131 S. Ct. 770, 790 (2011) (“Strickland . . . calls for an inquiry into
the objective reasonableness of counsel’s performance, not counsel’s subjective
state of mind.”).
For prejudice, we ask whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “For penalty-phase
ineffectiveness claims, the prejudice question is whether there is a reasonable
probability that, absent the errors, the sentencer would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.”
DeYoung, 609 F.3d at 1284 (quotation marks and ellipsis omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Richter, 562 U.S. at —, 131 S. Ct. at 787 (quotation marks omitted).
“In assessing prejudice under Strickland, the question is not whether a court
can be certain counsel’s performance had no effect on the outcome or whether it is
41
possible a reasonable doubt might have been established if counsel acted
differently.” Id. at —, 131 S. Ct. at 791. “The likelihood of a different result must
be substantial, not just conceivable.” Id. at —, 131 S. Ct. at 792.
In determining whether the prejudice prong is satisfied, “we consider the
totality of the available mitigation evidence—both that adduced at trial, and the
evidence adduced in the habeas proceeding—and reweigh it against the evidence
in aggravation.” Porter v. McCollum, 558 U.S. —, 130 S. Ct. 447, 453-54 (2009)
(quotation marks and brackets omitted); see also Wong v. Belmontes, 558 U.S. —,
130 S. Ct. 383, 390 (2009) (“[T]he reviewing court must consider all the
evidence—the good and the bad—when evaluating prejudice.”).
B. Analysis
In Strickland, the Supreme Court advised that “a court need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. Noting that “[t]he object of an ineffectiveness
claim is not to grade counsel’s performance,” the Supreme Court stated that “[i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” Id.
That is the course we follow here. We need not reach the issue of Rouson’s
42
performance because we conclude that, even assuming arguendo that Rouson’s
performance was objectively unreasonable, the total mitigation evidence Rose
proffers (in the penalty phase and the 3.850 evidence), viewed against the total
aggravating circumstances, does not raise a reasonable probability of a different
result.
There was, and is, substantial evidence in aggravation. Rose bludgeoned to
death Butch Richardson, the son of Rose’s girlfriend, with a concrete block. This
was no fight, and there was no shred of threat or justification. Richardson lay
helpless upon the ground the whole time, incapacitated by drink, while Rose went
searching for a weapon, while Rose returned with a concrete block, while Rose
hurled the block down on Richardson’s head, while Rose picked it up and threw
the block down on Richardson’s head four or five more times. Afterward, Rose
calmly announced to his housemates that he had just “picked up a brick and . . .
smashed [Richardson’s] head . . . into mush” and that if Richardson were not dead,
“he’s a vegetable.” Rose said he killed Richardson simply “[be]cause I was angry
at him.” All this time, Poole testified that Rose “was so calm. He wasn’t shaking.
There was nothing, you know. Just like he always was.”
And this was hardly Rose’s first occasion for serious violence. He had prior
convictions for robbery, aggravated battery, and aggravated assault. The jury
43
heard in detail how Rose, with his brother and another man, savagely beat Tommy
Walker, leaving him out of work for months. Rose admitted he had absconded
from parole, and he was wanted on escape and parole violation warrants at the
time he murdered Richardson and savagely beat Walker.
In all, the state trial court found three statutory aggravating factors: (1) Rose
was under a sentence of imprisonment (i.e., on parole) when he murdered
Richardson; (2) Rose had prior violent felony convictions; and (3) Rose
committed the murder in a cold, calculated, and premeditated manner, with no
pretext of legal or moral justification. None of Rose’s postconviction evidence
undermines the statutory aggravating circumstances or establishes statutory
mitigating circumstances.17
Instead, Rose’s evidence at trial and in postconviction focuses entirely on
non-statutory mitigation. And much of the evidence that Rose contends should
have been presented was in fact already presented at the penalty phase. For
example, Rose presented to the jury that he (1) was an alcoholic and persistently
17
At the 3.850 hearing, Dr. Fox opined that two statutory mitigating circumstances existed
(that is, Rose was in a state of extreme mental or emotional disturbance and Rose’s ability to
form specific intent was impaired). But the state trial court found that “Dr. Fox’s conclusions as
to the existence of statutory mitigating circumstances in this case were far-fetched and unworthy
of belief” and “[n]o reasonable jury . . . would give [Dr. Fox’s] testimony much, if any, weight.”
This finding by the state trial court was affirmed by the Florida Supreme Court and has ample
support in the state court record.
44
abused alcohol; (2) tried to rehabilitate himself by attending AA meetings and by
chairing the Jail Alcohol Program and attending Singleton’s group counseling
sessions; (3) was drinking heavily on the night of the murder and may have
experienced an alcoholic blackout; (4) could adapt to the prison environment and
function well there, as evidenced by his post-arrest rehabilitative efforts and his
participation in a Bible study class and prayer group; and (5) was a good person
when sober who had loved and tried to help Barbara and Butch Richardson.
Importantly, the jury also knew that Rose’s parents and brothers were alcoholics,
too. Obviously, a petitioner cannot satisfy the prejudice prong of the Strickland
test with evidence that is merely cumulative of evidence already presented at trial.
See, e.g., Belmontes, 558 U.S. at —, 130 S. Ct. at 387 (“Some of the evidence
[trial counsel Schick was allegedly ineffective for not presenting] was merely
cumulative of the humanizing evidence Schick actually presented; adding it to
what was already there would have made little difference. . . . Belmontes cannot
establish Strickland prejudice.”); Rhode v. Hall, 582 F.3d 1273, 1287 (11th Cir.
2009) (finding no prejudice and reasoning, inter alia, that “[c]ounsel is not
required to present cumulative evidence”), cert. denied, 130 S. Ct. 3399 (2010).
Moreover, as to Rose’s evidence that he was a good person when sober, the
evidence that he presented at trial arguably was even more powerful than what he
45
offered in postconviction proceedings, as Rouson elicited good-character
testimony not from Rose’s brother (who admitted Rose was frequently violent and
who himself participated in Rose’s attack on Walker), but from the mother of the
murdered victim.
Further, the non-cumulative evidence Rose contends Rouson should have
investigated and presented is weak. For example, as to the mental health evidence,
Rose was in the normal range of intelligence, he had no history of psychological
diagnosis or treatment, and the only diagnosis Rose’s mental health experts could
agree upon was that Rose suffered from alcoholism and chronic substance abuse,
which not only is cumulative but also is not significantly mitigating. See Stewart
v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1217 (11th Cir. 2007).
Although there was some testimony of possible organic brain damage, Dr.
Krop testified only that he found “some evidence . . . of some degree of organic
brain damage” but the amount was “minimal” and needed further documentation
and objective testing to confirm. Dr. Slomin, on the other hand, found Rose’s test
results were insufficient to make a diagnosis of organic brain damage, and Dr.
Slomin in particular found some of Rose’s test results were “in the very superior
range of intelligence” and were “not consistent with [a] person who has an organic
brain disorder.” Even Dr. Fox found that though there was some “evidence of a
46
mild organic brain symptom,” that evidence was too weak to make a diagnosis
“even at the level that I found it.”
As to evidence of Rose’s personal and family history, this evidence comes
from three primary witnesses: Rose’s brother David and his cousins Kravec and
Stark.18 The force of David’s testimony is substantially weakened by: (1) his
acknowledged participation with Rose in criminal activity, for David was one of
the persons who helped Rose in his savage beating of Tommy Walker, a witness
for the State at the penalty phase; (2) his unawareness that Rose left his family,
abandoned his children, and never paid any child support; and (3) his admissions
that Rose was regularly violent and aggressive and most of the family did not like
Rose. Cousins Kravec and Stark testified about Rose’s childhood, but
acknowledged that they did not see Rose regularly during that time period—Stark
testified she “wasn’t around a lot when [Rose] was growing up,” and her sister
Kravec testified she saw Rose only about once or twice a year when he was
growing up.19 Importantly, Rose was 32 years old when he murdered Butch
18
Although Rose’s mother furnished an affidavit to his postconviction counsel, she did
not testify in person at the 3.850 hearing. Testimony from other family members suggests Rose’s
mother would not have been willing and/or able to testify at Rose’s trial, and her affidavit does
not indicate that she would have done so.
19
Kravec and Stark did not know Rose as an adult. Kravec admitted she had not seen
Rose for about twenty years and did not know that he was a parole absconder who had been
hiding from the law. Stark personally did not even know whether Rose drank.
47
Richardson, and sixteen years had passed since he left home. The mitigation
evidence of Rose’s childhood was substantially weakened by the chronological
remove between his childhood and the murder. See Cummings v. Sec’y for Dep’t
of Corr., 588 F.3d 1331, 1368-69 (11th Cir. 2009) (finding petitioner Cummings’s
proposed penalty-phase testimony was weak and noting specifically as to his
childhood evidence, “Cummings was 33 years old when he murdered Good, and
the State would have stressed that his childhood was many years behind him”),
cert. denied, 131 S. Ct. 173 (2010).
Rose’s proposed mitigation evidence of his personal and family background
included testimony that: (1) Rose’s parents were alcoholics and were verbally
abusive to Rose when they drank; (2) Rose’s mother was domineering and had
unpredictable outbursts of temper; (3) Rose’s parents were critical of him and
slapped him when he misbehaved; (4) Rose’s parents argued with each other
frequently and on a few occasions would physically fight; (5) Rose’s parents
would go out drinking and leave Rose in charge of the other children, and Rose
was a good babysitter; (6) Rose’s stepfather was physically and emotionally
distant; (7) Rose’s mother called her children names like “no-good bums,” “sons-
of-a-bitches,” or “bastards,” and would “send [her children] to the basement and
come down there and beat [them],” and she hit Rose and David for losing fights;
48
(8) Rose was a sickly child with rheumatic fever; (9) children would taunt Rose
for being sickly and dark-complected; (10) Rose began drinking when he was 12
to 16 years old, and he used other drugs, including acid, speed, marijuana, and
heroin; (11) when Rose drank he would “start getting rowdy,” but when he was
sober he was “more into books and stuff” and had to be provoked to fight; (12)
Rose was a good brother to David and tried to be a father figure to him; and (13)
Rose was a good father to his two children and took them to the library and taught
them things.
A lot of Rose’s proffered mitigation testimony is double-edged or even
aggravating. See, e.g., Suggs v. McNeil, 609 F.3d 1218, 1231 (11th Cir. 2010)
(noting that “evidence of drug and alcohol use is often a ‘two-edged sword’ that
provides an independent basis for moral judgment by the jury,” and that evidence
that the defendant spent time at military school because of behavioral issues “was
potentially damaging” (quotation marks and citation omitted)), petition for cert.
filed (U.S. Jan. 18, 2011) (No. 10-8579, 10A489); Reed, 593 F.3d at 1246 (“[I]t
would have been all too easy for the State to use Reed’s own mitigation witnesses
to paint him as a violent, manipulative person with long-standing drug abuse
issues and brushes with the law. . . . Here, it was not just a reasonable probability,
but a virtual certainty that Reed’s ‘good’ mitigation evidence would have led to
49
the introduction of ‘bad’ evidence.”).
For example, David Rose testified that: (1) Rose went to reform school after
fighting his stepfather; (2) when he drank or used drugs, Rose was violent and “the
kind of guy that always tried to get the first punch in”; (3) Rose drank or used
drugs regularly; and (4) Rose’s family (apart from David Rose) did not think well
of him. Rose’s 3.850 evidence also revealed that Rose consistently lied about his
background, for example by: (1) saying he quit school in tenth grade, and
reporting at another time that he graduated high school and attended two years of
college; (2) stating he never married and had no children, and indicating at another
time that he was divorced with two children; and (3) suggesting he was a popular
athlete in school, and claiming later that he was ridiculed by other students for
being sickly and dark-complected. Dr. Krop testified that Rose had a
“pathological relationship” with Barbara Richardson, which led to Rose’s
decisions to stop going to AA meetings and not to work. Dr. Krop also reiterated
that, based on his research, Rose’s family thought of him as “the black sheep of
the family.” Indeed, Dr. Krop’s denigration of Rose’s relationship with Barbara
Richardson would have been particularly harmful, as it would undercut the
testimony of Barbara Richardson, who otherwise was a very sympathetic penalty-
phase witness for Rose. And David Rose’s testifying Rose was a good father
50
would have opened up the issue of how Rose allegedly never provided any child
support and eventually abandoned his children.
In any event, Rose’s 3.850 testimony falls far short of the powerful evidence
that has been held sufficient to satisfy the prejudice prong in a brutal murder case.
See, e.g., Porter, 558 U.S. at —, 130 S. Ct. at 454 (“Had Porter’s counsel been
effective, the judge and jury . . . would have heard about (1) Porter’s heroic
military service in two of the most critical—and horrific—battles of the Korean
War, (2) his struggles to regain normality upon his return from war, (3) his
childhood history of physical abuse, and (4) his brain abnormality, difficulty
reading and writing, and limited schooling.”); Rompilla v. Beard, 545 U.S. 374,
390-93, 125 S. Ct. 2456, 2467-69 (2005) (Rompilla’s trial counsel failed to
discover or present evidence that Rompilla (1) had test results pointing to
schizophrenia, fetal alcohol syndrome, and stunted mental development, (2) was
beaten by his father with fists, leather straps, belts, and sticks, (3) was locked in a
small wire mesh dog pen filled with excrement, (4) was not allowed to visit other
children or speak on the phone, and (5) lived without indoor plumbing, slept in an
unheated attic, and attended school in rags); Wiggins v. Smith, 539 U.S. 510, 516-
17, 534-35, 123 S. Ct. 2527, 2532-33, 2542 (2003) (trial counsel offered no
evidence of Wiggins’s life history, which included (1) being left alone for days at
51
a time with no food, forcing him to beg for food and eat paint chips and garbage,
(2) beatings for breaking into the locked kitchen, and (3) being passed among
various foster homes, where he was physically abused and also suffered repeated
molestations, rapes, and gang-rapes).
And here the new mitigation is simply an extension of what the jury had
heard, which is critically different from the above cases, in which the new
mitigation was not only powerful, but of a type that counsel did not present in the
penalty phase at all. See Porter, 558 U.S. at —, 130 S. Ct. at 454 (noting that the
“judge and jury at Porter’s original sentencing heard almost nothing that would
humanize Porter or allow them to accurately gauge his moral culpability,”
including the powerful evidence of Porter’s heroic and emotionally scarring
military service); Rompilla, 545 U.S. at 393, 125 S. Ct. at 2469 (finding that the
evidence discovered after trial “adds up to a mitigation case that bears no relation
to the few naked pleas for mercy actually put before the jury”); Rutherford v.
Crosby, 385 F.3d 1300, 1315 (11th Cir. 2004) (“[T]his is not a situation like the
one in Williams v. Taylor or Wiggins v. Smith, where the jury heard very little
mitigating circumstance evidence and heard none at all about the type of
mitigation presented during the post-conviction proceedings.” (citation omitted)).
This Court previously has affirmed findings of no prejudice where, as here, (1) the
52
new mitigation evidence did not establish any statutory mitigating factors, (2) the
new mitigation evidence did not reduce the weight of the statutory aggravating
factors, and (3) the jury had heard some non-statutory mitigation of the same type
the new mitigation presented, just in less detailed form. Boyd v. Allen, 592 F.3d
1274, 1297-1302 (11th Cir.), cert. denied, 131 S. Ct. 645 (2010); Robinson v.
Moore, 300 F.3d 1320, 1346-48 (11th Cir. 2002); see also Rutherford, 385 F.3d at
1315-16 (finding state court’s conclusion of no prejudice reasonable because (1)
jury had heard some evidence of defendant’s mental and emotional state, and
evidence as to other possible non-statutory mitigating factors, from penalty phase
witnesses, (2) new evidence would have come at cost of introducing damaging
testimony, and (3) strong aggravating factors existed).
In sum, when we look at all the evidence in mitigation, both that presented
at the penalty phase and in the 3.850 proceedings, together with the aggravating
evidence in this case, we conclude that Rose has not carried his burden to show a
reasonable probability that he would have received a different sentence had
Rouson investigated and presented the evidence Rose contends he should have.
Our confidence in the outcome has not been undermined. Because Rose has not
shown prejudice, we need not decide whether his trial counsel’s penalty-phase
performance was deficient.
53
IV. CONCLUSION
For the reasons set forth above, we affirm the district court’s denial of
Rose’s 28 U.S.C. § 2254 petition.
AFFIRMED.
54