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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11779
________________________
D.C. Docket No. 1:17-cv-00061-KD-MU
MATTHEW REEVES,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 10, 2020)
Before WILSON, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Matthew Reeves, an Alabama prisoner on death row, appeals the district
court’s denial of his habeas corpus petition. See
28 U.S.C. § 2254. He argues that
habeas relief should have been granted on two grounds. First, he asserts that he is
intellectually disabled and therefore ineligible for the death penalty. Second, he
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contends that his trial counsel rendered ineffective assistance by failing to hire an
expert to evaluate him for intellectual disability—despite petitioning for and
obtaining funds to do so.
For the reasons which follow, we affirm in part and reverse in part. We affirm
the denial of habeas relief on the intellectual disability claim, but we reverse the
denial of habeas relief on the ineffective assistance of counsel claim.
I
In January of 1998, an Alabama jury found Mr. Reeves guilty of capital
murder. By a 10-2 vote, the jury recommended that Mr. Reeves be sentenced to
death, and the trial court followed that recommendation. We recount the events that
led to Mr. Reeves’ conviction and sentence, as well as evidence adduced at the state
post-conviction proceedings.
A
The facts underlying Mr. Reeves’ conviction were described by the Alabama
Court of Criminal Appeals on direct appeal. See Reeves v. State,
807 So. 2d 18 (Ala.
Crim. App. 2000). We summarize them as follows.
On November 27, 1996, Mr. Reeves, who was 18 years old at the time, his
brother Julius, and several other individuals set out to commit a robbery. See
id. at
24. Their car, however, broke down. A passing driver, Willie Johnson, stopped in
his pickup truck and offered to tow the car. See
id.
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After Mr. Johnson towed the car, Julius offered to give him a ring as payment
if he would drive the group to his girlfriend’s house to get it. See
id. Mr. Johnson
agreed, not knowing that Julius had told the others that Mr. Johnson was going to be
their robbery victim. See
id. After taking the group to pick up the ring, Mr. Johnson
drove them back to the Reeves’ house. See
id. at 24–25. As the truck came to a
stop, Mr. Reeves shot and killed Mr. Johnson and instructed the others to go through
his pockets to “get his money.” See
id. at 25.
B
Two attorneys, Blanchard McLeod and Marvin Wiggins, were initially
appointed to represent Mr. Reeves. Before trial, Mr. McLeod and Mr. Wiggins
petitioned the trial court for funds to hire a clinical neuropsychologist, Dr. John R.
Goff, to evaluate Mr. Reeves for intellectual disability. After the trial court denied
the motion, Mr. McLeod and Mr. Wiggins sought rehearing. In their rehearing
request, they said they “possesse[d] hundreds of pages of psychological,
psychometric and behavioral analysis material relating to” Mr. Reeves. See D.E.
23-1 at 74. They also asserted “[t]hat a clinical neuropsychologist or a person of
like standing and expertise is the only avenue open to the defense to compile this
information, correlate this information, interview the client and present this
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information in an orderly and informative fashion to the jury during the mitigation
phase[.]”
Id. at 74–75 (emphasis added).1
During a subsequent hearing before the trial court, Mr. McLeod further
explained why retaining a neuropsychologist was critical:
This is a mitigation expert who we would expect because of the
tremendous amount of discovery material provided to us from the
Department of Youth Services, from the schools, . . . and all of the
psychologicals and all that we do have available that we are going to
need someone to assist us in the mitigation phase of this case. . . . This
is not for competency. This is for the mitigation phase of the case, and
it’s going to be a little late once we finish the guilt phase of the case to
worry about retaining someone to assist with the preparation of the
mitigation phase.
D.E. 23-3 at 92–93. Mr. McLeod continued: “We have received two to three
hundred pages of discovery material in the nature of a psychological and a
psychiatric information that is going to be exceptionally pertinent at the penalty
phase of this proceeding.”
Id. at 96.
On October 16, 1997, the trial court granted the defense’s request for funding
to hire Dr. Goff. Shortly thereafter, Mr. McLeod withdrew as counsel and was
replaced by Thomas Goggans. Mr. Wiggins, however, continued to represent Mr.
Reeves.
1
We later describe the medical and behavioral records that Mr. Reeves’ counsel had in their
possession prior to trial.
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Mr. Goggans and Mr. Wiggins moved for and were granted access to Mr.
Reeves’ mental health records from the Taylor Hardin Secure Medical Facility,
including records related to an evaluation performed by a clinical psychologist, Dr.
Kathy Ronan, a few months earlier. But despite securing funding and obtaining the
Taylor Hardin records, they never contacted Dr. Goff or hired any other
neuropsychologist to evaluate Mr. Reeves for intellectual disability.
Instead, on the day of the sentencing phase of Mr. Reeves’ trial, Mr. Goggans
and Mr. Wiggins spoke to Dr. Ronan about Mr. Reeves for the first time and then
called her to testify. Dr. Ronan had been appointed by the court to evaluate Mr.
Reeves solely to assess his competency to stand trial and his mental state at the time
of the offense. She had not conducted a sentencing-phase evaluation, which she later
explained “would contain different components than those for the trial phase
evaluations, and would be more extensive in terms of testing and background
investigation.” D.E. 23-15 at 11. She also had not evaluated Mr. Reeves for
intellectual disability. Specifically, Dr. Ronan had not administered a full IQ test
(she had administered only the verbal portion of the test), and she had not assessed
Mr. Reeves’ adaptive skills, both of which are necessary to properly evaluate
intellectual disability. See
id. at 10–12; D.E. 23-8 at 145.
Dr. Ronan nevertheless testified at the sentencing phase, based on her limited
evaluation of Mr. Reeves, that he was in the “borderline range of intelligence.” When
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the state asked Dr. Ronan on cross-examination whether Mr. Reeves was
intellectually disabled, she responded that “[h]e was not in a level that they would
call . . . mental retardation.” Mr. Reeves’ trial counsel did not object, nor did they
elicit testimony from Dr. Ronan on redirect about her inability to offer that opinion
without having conducted the necessary intellectual disability evaluation.
Mr. Reeves’ trial counsel presented two other witnesses during the sentencing
phase. They called Detective Pat Grindle of the Selma Police Department, who
described the poor condition of Mr. Reeves’ childhood home. And they called Mr.
Reeves’ mother, Marzetta Reeves, who testified about various struggles in Mr.
Reeves’ childhood. For example, she testified that that his father was absent, that
he repeated first grade and “either third or fourth grade,” that he “had a hyperization
problem” and “some learning disabilities,” that he “got whipped a lot from [his
grandmother] and his aunties,” and that his brother Julius had significant influence
over him.
During closing argument, the state emphasized that Mr. Reeves “chose his
path”—that he was not a “victim of our society,” but instead had “every resource . . .
available,” yet he “pushed it all away.” The defense referenced Mr. Reeves’ mental
capacity only in passing: “You heard the psychiatrist or the psychologist as she
talked about Matthew’s upbringing. You heard her talk about the resources that
were there and the resources that were not there. You heard Ms. Reeves talk about
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first grade, his failing that. He went on through the system, and the third grade, he
failed that. And in the eighth grade . . . because of his violent behavior, because of
his condition, because he just wouldn’t listen, wouldn’t pay attention, didn’t want to
be in that environment he was kicked out of school . . .”
The jury recommended that Mr. Reeves be sentenced to death by a 10-2 vote,
and the trial court subsequently imposed a death sentence. On direct appeal, the
Alabama Court of Criminal Appeals affirmed, and Mr. Reeves’ petitions for writ of
certiorari to the Alabama Supreme Court and the U.S. Supreme Court were denied.
See Reeves v. State,
807 So. 2d 18 (Ala. Crim. App. 2000), cert. denied, Ex parte
Reeves, No. 1000234 (Ala. 2001), & Reeves v. Alabama,
534 U.S. 1026 (2001).
C
Mr. Reeves timely petitioned for post-conviction relief pursuant to Rule 32 of
Alabama’s Rules of Criminal Procedure. Mr. Reeves asserted, among other claims,
that his trial counsel were ineffective for failing to obtain an expert to evaluate him
for intellectual disability—despite having sought and obtained funds to hire a
neuropsychologist for that very purpose. He also argued that his counsel were
ineffective for failing to retain a mitigation expert, and that his death sentence
violated the Eighth Amendment because he is intellectually disabled.
The Rule 32 court held a two-day evidentiary hearing on Mr. Reeves’ petition.
Both sides presented witnesses at the hearing.
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Mr. Reeves called Dr. Goff, whom post-conviction counsel had retained to
evaluate him prior to the hearing. Dr. Goff testified—based on his review of Mr.
Reeves’ mental health and school records and the results of a battery of tests
designed to assess Mr. Reeves’ IQ, cognitive abilities, and adaptive functioning—
that Mr. Reeves was intellectually disabled. Dr. Goff concluded, based on Mr.
Reeves’ IQ scores of 71 and 73, that he has significantly subaverage intellectual
functioning. Dr. Goff also concluded that Mr. Reeves has significant deficits in
multiple areas of adaptive functioning, including functional academics, self-
direction, work, and health and safety. In addition, Dr. Goff testified that, had Mr.
Reeves’ trial counsel asked him to evaluate Mr. Reeves years earlier for the purpose
of testifying at trial, he would have performed similar evaluations and reached the
same conclusions.
Mr. Reeves also presented a mitigation expert, Dr. Karen Salekin, who
testified about the neglect, domestic violence, drug abuse, and extreme poverty that
he experienced as a child. Mr. Reeves did not call Mr. McLeod, Mr. Wiggins, or
Mr. Goggans to testify.2
The state called Dr. Glen King, a clinical and forensic psychologist who also
evaluated Mr. Reeves for the Rule 32 proceedings. Dr. King concluded that Mr.
Reeves was “in the borderline range of intellectual ability.” D.E. 23-25 at 234. Dr.
2
At the time of the Rule 32 proceedings, Mr. Wiggins was an Alabama state judge.
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King testified that Mr. Reeves had an IQ of 68, but that his “achievement scores [on
other tests] indicate a level of functioning higher than the IQ scores actually
indicated.”
Id. at 223–24. Although Dr. King found that Mr. Reeves achieved low
test scores in three areas of adaptive functioning (domestic activity, work, and self-
direction), he explained that other evidence indicated that he did not have substantial
deficiencies in these areas.
The Rule 32 court denied Mr. Reeves’ petition in 2009, but the order was not
served on Mr. Reeves, his counsel, or the state until 2013. Because of this error, Mr.
Reeves was granted leave to file an out-of-time appeal.
In 2016, the Court of Criminal Appeals affirmed the denial of Mr. Reeves’
Rule 32 petition. See Reeves v. State,
226 So. 3d 711 (Ala. Crim. App. 2016). As
relevant here, it concluded that the Rule 32 court did not abuse its discretion in
denying Mr. Reeves’ intellectual disability claim. See
id. at 725–44. It also held
that Mr. Reeves could not meet his burden of proving ineffective assistance of
counsel because he did not call his trial counsel to testify at the Rule 32 hearing. See
id. at 747–48. It explained that Mr. Reeves’ “failure to call his attorneys to testify
[was] fatal to his claims of ineffective assistance of counsel,” because without such
testimony “the record is silent as to the reasons trial counsel . . . chose not to hire Dr.
Goff[.]”
Id. at 749–51 (emphasis added).
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The Alabama Supreme Court denied Mr. Reeves’ petition for a writ of
certiorari. See Ex parte Reeves, No. 1160053 (Ala. 2017). The U.S. Supreme Court
also denied certiorari. See Reeves v. Alabama,
138 S. Ct. 22 (2017) (Mem.). Justice
Sotomayor—joined by Justices Ginsburg and Kagan—dissented, explaining that the
Court of Criminal Appeals’ “imposition of a categorical rule that counsel must
testify in order for a petitioner to succeed on a federal constitutional ineffective-
assistance-of-counsel claim contravenes [Supreme Court] decisions requiring an
objective inquiry into the adequacy and reasonableness of counsel’s performance
based on the full record before the court.”
Id. at 23.
Mr. Reeves then filed a federal habeas corpus petition. The district court
denied relief, but granted Mr. Reeves a certificate of appealability on his claim that
trial counsel were ineffective for failing to hire an expert to investigate his
intellectual disability. We granted Mr. Reeves a certificate of appealability on his
claims that he is intellectually disabled and that the Court of Criminal Appeals
incorrectly required trial counsel’s testimony to establish ineffectiveness.3
3
We also granted a certificate of appealability on Mr. Reeves’ claim that trial counsel were
ineffective for failing to conduct a sufficient mitigation investigation or hire a defense mitigation
expert. Given our ruling on trial counsel’s ineffectiveness for failing to retain an expert to evaluate
Mr. Reeves for intellectual disability, we do not reach whether trial counsel were also ineffective
for failing to secure additional mitigation evidence.
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II
The district court’s denial of a § 2254 habeas corpus petition is subject to de
novo review. See Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010). Because Mr.
Reeves filed his petition after April 24, 1996, however, this appeal is governed by
the Antiterrorism and Effective Death Penalty Act of 1996. AEDPA “establishes a
highly deferential standard for reviewing state court judgments.” Parker v. Sec’y,
Dep’t. of Corr.,
331 F.3d 764, 768 (11th Cir. 2003). Under AEDPA, a federal court
may only grant a writ of habeas corpus if the state court’s determination of a federal
claim was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law” or (2) “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 phrase “clearly established Federal law” encompasses only the
holdings of the Supreme Court of the United States “as of the time of the relevant
state-court decision.” Williams v. Taylor,
529 U.S. 362, 412 (2000).
A state court’s determination is “contrary to” clearly established federal law
“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.” Williams,
529
U.S. at 413. A state court’s determination is “an unreasonable application” of clearly
established federal law “if the state court identifies the correct governing legal
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principle from [the Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.”
Id. Reasonableness is an objective
standard, and a federal court may not issue a writ of habeas corpus simply because
it concludes in its independent judgment that the state court was incorrect. See
id.
at 410. See also Woods v. Donald,
575 U.S. 312, 316 (2015) (“[A]n unreasonable
application . . . must be objectively unreasonable, not merely wrong; even clear error
will not suffice.”) (citation and internal quotation marks omitted).
Under § 2254(d)(2), we presume that a state court’s findings of fact are correct
unless rebutted by clear and convincing evidence. See
28 U.S.C. §
2254(e)(1). “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.”
Rose v. McNeil,
634 F.3d 1224, 1241 (11th Cir. 2011) (citations omitted).
III
We first address Mr. Reeves’ intellectual disability claim.
A
Mr. Reeves argues that he is ineligible for the death penalty under Atkins v.
Virginia,
536 U.S. 304, 321 (2002), which held that executing intellectually disabled
individuals violates the Eighth Amendment. Generally, a determination of whether
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a person is intellectually disabled is a finding of fact. See Fults v. GDCP Warden,
764 F.3d 1311, 1319 (11th Cir. 2014).
Though Atkins left defining intellectual disability to the states, the Supreme
Court noted that the medical community defines intellectual disability (then referred
to as “mental retardation”) as follows:
Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual
functioning, existing concurrently with related limitations in two or
more of the following applicable adaptive skill areas: communication,
self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure and work. Mental
retardation manifests before 18.
Atkins,
536 U.S. at 308 n.3. The Alabama Supreme Court has similarly held that,
for a defendant to prove that he is intellectually disabled under Atkins, he must show
(1) that he has “significantly subaverage intellectual functioning (an IQ of 70 or
below);” (2) that he has “significant or substantial deficits in adaptive behavior;” and
(3) that these problems “manifested themselves during the development period (i.e.,
before the defendant reached age 18).” Ex parte Perkins,
851 So. 2d 453, 456 (Ala.
2002). See also Smith v. State,
213 So. 3d 239, 248 (Ala. 2007) (same).
In Hall v. Florida,
572 U.S. 701, 721 (2014), the Supreme Court held that a
determination of intellectual disability must be “informed by the medical
community’s diagnostic framework.” The Court in Hall invalidated a Florida statute
that defined intellectual disability based on a strict IQ test score cutoff of 70,
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concluding that it contravened the established medical practice of taking into
account the standard error of measurement. The standard error of measurement
reflects “that an individual’s score is best understood as a range of scores on either
side of the recorded score.”
Id. at 713. The Court explained that “an individual with
an IQ test score between 70 and 75 or lower may show intellectual disability by
presenting additional evidence regarding difficulties in adaptive functioning.”
Id. at
722 (citation and internal quotation marks omitted).
B
Mr. Reeves argues that the Court of Criminal Appeals’ analysis of the first
two prongs of the intellectual disability standard is both contrary to and an
unreasonable application of Hall, as well as an unreasonable determination of the
facts. See Appellant’s Initial Br. at 25–38. We disagree.4
In analyzing the first prong, the Court of Criminal Appeals interpreted Hall to
mean that “an IQ score, alone, is not determinative of intellectual disability or even
of the intellectual-functioning prong of intellectual disability.” Reeves,
226 So. 3d at
740. Thus, although Mr. Reeves had full-scale IQ scores of 68, 71, and 73, the Court
of Criminal Appeals concluded that the Rule 32 court did not abuse its discretion by
finding—based on all the evidence presented and after observing Mr. Reeves when
4
The Court of Criminal Appeals did not reach the third prong, regarding whether the intellectual
disability manifested before the age of 18. See Reeves,
226 So. 3d at 743 n.15.
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he testified at a pretrial hearing—that his intellectual functioning was not
significantly subaverage. See
id. at 741.
Turning to the second prong, the Court of Criminal Appeals similarly stated
that a court “is not required to find that a person suffers from significant deficits in
adaptive functioning merely because that person’s scores on a standardized test
indicate such deficits.”
Id. at 741–42. It reasoned that, although testing performed
by both experts reflected that Mr. Reeves had adaptive deficits in certain areas,
“other evidence was presented that either called into question the validity of those
scores and/or indicated that [Mr. Reeves’] deficits in those areas were not, in fact,
significant.”
Id. at 742.
Mr. Reeves contends that the Court of Criminal Appeals deviated from the
medical community’s diagnostic framework in evaluating his intellectual
functioning because it did not place enough weight on his IQ scores. See Appellant’s
Initial Br. at 27–33. He also asserts that the Court of Criminal Appeals’ analysis of
his adaptive functioning contravened established medical standards because it
treated his adaptive strengths as negating his adaptive deficits. See
id. at 36–38. For
this latter point, he relies on Moore v. Texas,
137 S. Ct. 1039, 1050 (2017), which
clarified that “the medical community focuses the adaptive-functioning inquiry on
adaptive deficits.” As we have stated, “[a]fter Moore, states cannot ‘weigh’ an
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individual’s adaptive strengths against his adaptive deficits.” Smith v. Ala. Dep’t of
Corr.,
924 F.3d 1330, 1337 (11th Cir. 2019).
Assuming without deciding that the Court of Criminal Appeals unreasonably
applied Hall with respect to the first prong of the intellectual disability standard, Mr.
Reeves cannot prevail on his Atkins claim. The Court of Criminal Appeals did not
unreasonably apply Hall in analyzing the second prong.5
1
Under Teague v. Lane,
489 U.S. 288 (1989), and its progeny, cases
establishing new constitutional rules of criminal procedure generally cannot be
applied retroactively on collateral review. See Welch v. United States,
136 S. Ct.
1257, 1264 (2016). We therefore address whether Hall and Moore apply to Mr.
Reeves’ claim, as both opinions were issued after Mr. Reeves’ conviction and
sentence became final in 2001, and Moore was issued after the Court of Criminal
Appeals denied post-conviction relief. See Caspari v. Bohlen,
510 U.S. 383, 389
5
To the extent that Mr. Reeves claims that the Court of Criminal Appeals’ opinion is an
unreasonable application of Atkins, we reject that argument. “Atkins did not define intellectual
disability, nor did it direct the states on how to define intellectual disability . . . Rather, Atkins
expressly left it to the states to develop ‘appropriate ways to enforce the constitutional restriction’
on executing the intellectually disabled.” Kilgore v. Secretary, Fla. Dep’t of Corr.,
805 F.3d 1301,
1311 (11th Cir. 2015) (quoting Atkins,
536 U.S. at 317). The Court of Criminal Appeals therefore
did not unreasonably apply Atkins in evaluating whether Mr. Reeves was intellectually disabled.
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(1994) (“A threshold question in every habeas case . . . is whether the court is
obligated to apply the Teague rule to the defendant’s claim.”). 6
We do not apply Moore to Mr. Reeves’ Atkins claim for two reasons. First,
Moore was decided after the Court of Criminal Appeals issued the relevant state-
court decision in 2016, and therefore it was not “clearly established” law under §
2254(d)(1). See Shoop v. Hill,
139 S. Ct. 504, 507–08 (2019) (summarily vacating
the Sixth Circuit’s grant of habeas relief because it was improperly based on Moore,
a case “which was not handed down until long after the state-court decisions” that
were relevant for purposes of the § 2254(d) analysis). Second, we have held that
Moore “announced a new rule” that does not apply retroactively under Teague. See
Smith, 924 F.3d at 1338–39.
Unlike Moore, Hall had been decided at the time the Court of Criminal
Appeals issued its opinion in the Rule 32 appeal. In reviewing Mr. Reeves’ claim,
the Court of Criminal Appeals applied Hall, rejecting the state’s argument that Hall
does not apply retroactively to cases on collateral review. See Reeves,
226 So. 3d at
727 n.7. Although the Court of Criminal Appeals was free to apply Hall as a matter
of state law, see Danforth v. Minnesota,
552 U.S. 264, 282 (2008), its retroactivity
6
Atkins was decided in 2002, also after Mr. Reeves’ conviction and sentence became final, but we
have held that Atkins—which announced a substantive rule of constitutional law—applies
retroactively. See In re Holladay,
331 F.3d 1169, 1173 (11th Cir. 2003) (“[T]here is no question
that the new constitutional rule . . . articulated in Atkins is retroactively applicable to cases on
collateral review.”).
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determination does not govern whether Hall applies retroactively in federal court.
See Knight v. Fla. Dep’t of Corr.,
936 F.3d 1322, 1333 (11th Cir. 2019) (“[A] state-
law retroactivity determination has no significance in federal court . . . if the
government raises the issue, a Teague analysis is mandatory.”).
We have held that Hall sets forth a new rule of criminal procedure that does
not apply retroactively under Teague. See In re Henry,
757 F.3d 1151, 1158–59
(11th Cir. 2014); In re Hill,
777 F.3d 1214, 1223 (11th Cir. 2015); Kilgore v.
Secretary, Fla. Dep’t of Corr.,
805 F.3d 1301, 1313–16 (11th Cir. 2015). Although
we would normally follow this precedent, a state can waive a Teague
nonretroactivity argument. See Caspari,
114 S. Ct. at 953 (“[A] federal court may,
but need not, decline to apply Teague if the State does not argue it.”). Here, despite
the existence of cases like Henry, Hill, and Kilgore, the state has failed to argue on
appeal that Hall is not retroactive. In fact, it has chosen to address Hall on the merits.
See State’s Answer Br. at 24, 30. We therefore consider whether the Court of
Criminal Appeals unreasonably applied Hall.7
7
Although Mr. Reeves also says that the opinion of the Court of Criminal Appeals is “contrary to”
Hall, he does not argue that it failed to identify the correct legal standard or refused to apply
Supreme Court precedent that involved materially indistinguishable facts. See Williams,
529 U.S.
at 413. His contention is better characterized as an “unreasonable application” argument, as he
acknowledges that the Court of Criminal Appeals identified the correct legal principles but
contends that it unreasonably applied those standards to his case. See
id.
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2
Hall does not provide guidance as to how a court is to analyze the adaptive
deficits prong of the intellectual disability standard, other than saying that the
analysis is informed by the medical community’s diagnostic framework. See Hall,
572 U.S. at 721. See also Mays v. Stephens,
757 F.3d 211, 218 (5th Cir. 2014)
(explaining that Hall does not dictate what kinds of evidence a court might consider
when determining adaptive functioning, and “[i]nstead, . . . exclusively addresses
the constitutionality of mandatory, strict IQ cutoffs”); Arbelaez v. Fla. Dep’t of
Corr., 662 F. App’x 713, 723 (11th Cir. 2016) (“Nothing in the holdings of Atkins
or Hall speaks directly to the methodology for discerning an individual’s deficits in
adaptive functioning.”).
Mr. Reeves argues that prevailing medical standards make clear that the focus
should be on adaptive deficits, not adaptive strengths. See Appellant’s Initial Br. at
37. To the extent that the Court of Criminal Appeals may have improperly balanced
Mr. Reeves’ adaptive strengths against his adaptive deficits, the Supreme Court did
not hold that this was improper until Moore. “[W]hile that approach today would
be contrary to clearly established federal law—that is, contrary to Moore . . .—it was
neither contrary to nor an unreasonable application of clearly established Supreme
Court law when” the Court of Criminal Appeals affirmed the denial of Mr. Reeves’
Rule 32 petition. See Clemons v. Comm’r, Ala. Dep’t of Corr.,
967 F.3d 1231, 1250
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(11th Cir. 2020). See also Smith, 924 F.3d at 1343 (explaining that, although the
Alabama courts had improperly reasoned that the petitioner’s adaptive strengths
outweighed his deficits, this approach was acceptable until Moore).
In any event, the Court of Criminal Appeals did not treat Mr. Reeves’ adaptive
strengths as overriding his adaptive deficits; instead, it weighed conflicting evidence
and concluded—based on Dr. King’s testimony and other record evidence—that Mr.
Reeves’ adaptive deficits were not significant, despite his low test scores in certain
areas. See Reeves,
226 So. 3d at 742.
Although Dr. King testified that Mr. Reeves achieved low test scores in
domestic activity, work, and self-direction, he also explained that other evidence
indicated that Mr. Reeves did not have substantial deficits in these areas. For
example, the Court of Criminal Appeals relied on Dr. King’s testimony that Mr.
Reeves scored low in domestic activity “because [he] had never been required to do
any type of domestic activity growing up and had been incarcerated since he was 18
years old.”
Id. It also cited testimony by Dr. King that he would have scored Mr.
Reeves higher in “self-direction” had he known at the time of the evaluation that Mr.
Reeves had been “involved in a lot of drug activity and was actually directing the
behaviors and activities of others[.]”
Id.
The Court of Criminal Appeals further relied on Dr. King’s conclusion that
Mr. Reeves scored low in the work domain because he “did not get to the age where
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he might be able to master use of complex job tools or equipment” before he was
incarcerated. See
id. And it recounted other evidence confirming that Mr. Reeves
has at least some vocational skills. He had certificates in brick masonry, welding,
and automobile mechanics, and held a construction job while his brother was
incarcerated. See
id. at 742–43.
In addition, the Court of Criminal Appeals noted that although Mr. Reeves
scored low in the health and safety, self-care, and leisure domains on the test
administered by Dr. Goff, he achieved high scores in these areas in tests administered
by Dr. King. See
id. at 743. It viewed certain evidence—that Mr. Reeves “sold
drugs to make money” and “used that money to buy personal belongings for himself,
including a car, and to help pay the household bills”—as demonstrating that he could
care for himself. See
id. Finally, the Court of Criminal Appeals credited Dr. King’s
testimony that Mr. Reeves could read at a fifth-grade level, and Dr. Goff
acknowledged that reading at that level “would not qualify as a significant deficit in
functional academics.”
Id.
In sum, the Court of Criminal Appeals did not unreasonably apply Hall by
relying on this evidence to find that Mr. Reeves did not have substantial deficits in
at least two areas. We reiterate that a determination of whether a person is
intellectually disabled is a finding of fact, see Fults, 764 F.3d at 1319, and under
AEDPA such a finding is presumed to be correct. Even if we may have viewed the
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evidence differently, “we are not sitting as the initial triers of fact determining
whether [Mr. Reeves] is in fact [intellectually disabled]. We are not even assessing
factual findings made by a district court for clear error. We are reviewing the factual
findings of the state habeas court through the prism of AEDPA, which calls for a
presumption of correctness that can only be overcome by clear and convincing
evidence.” Id. at 1321. Accordingly, we affirm the district court’s denial of relief
on Mr. Reeves’ Atkins claim.
IV
We now turn to Mr. Reeves’ claim that he received ineffective assistance of
counsel in violation of the Sixth Amendment. Mr. Reeves must establish two
elements to prevail on this claim: (1) deficient performance of counsel; and (2)
resulting prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (1984).
To prove deficiency, Mr. Reeves must show that his trial “counsel’s
representation fell below an objective standard of reasonableness.”
Id. at 688. In
considering counsel’s performance, courts “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance[.]”
Id. at 689. “To overcome that presumption, [Mr. Reeves] must show
that counsel failed to act reasonably considering all the circumstances.” Cullen v.
Pinholster,
563 U.S. 170, 189 (2011) (citation and internal quotation marks omitted).
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To prove prejudice, Mr. Reeves “must show that 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. A “reasonable probability”
does not mean that counsel’s performance “more likely than not altered the
outcome.” Nix v. Whiteside,
475 U.S. 157, 175 (1986). Instead, a “reasonable
probability” is a “probability sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694.
Under AEDPA, Mr. Reeves is “entitled to relief only if the state court’s
rejection of his claim of ineffective assistance of counsel was ‘contrary to, or
involved an unreasonable application of,’ Strickland, or rested on ‘an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.’” Porter v. McCollum,
558 U.S. 30, 39 (2009) (quoting § 2254(d)). If
the Court of Criminal Appeals unreasonably applied Strickland, then we review Mr.
Reeves’ ineffectiveness claim without AEDPA deference. See McGahee v. Ala.
Dep’t of Corr.,
560 F.3d 1252, 1266 (11th Cir. 2009) (“Where we have determined
that a state court decision is an unreasonable application of federal law under
28
U.S.C. § 2254(d), we are unconstrained by § 2254’s deference and must undertake
a de novo review of the record.”).
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A
In rejecting Mr. Reeves’ ineffective assistance of counsel claims, the Court of
Criminal Appeals held that, “to overcome the strong presumption of effectiveness,
a Rule 32 petitioner must, at his evidentiary hearing, question trial counsel
regarding his or her actions and reasoning.” Reeves,
226 So. 3d at 748. It
concluded, based on this categorical rule, that Mr. Reeves’ “failure to call his
attorneys to testify [was] fatal to his claims,”
id. at 749 (emphasis added), without
considering the extensive evidence before it about counsel’s performance or
explaining why this other evidence did not establish ineffectiveness. By treating Mr.
Reeves’ failure to call his counsel to testify as a per se bar to relief—despite ample
evidence in the record to overcome the presumption of adequate representation—the
Court of Criminal Appeals unreasonably applied Strickland.
Strickland established a “presumption” of reasonable performance, but it also
made clear that the presumption may be “overcome.”
466 U.S. at 689. See also
Kimmelman v. Morrison,
477 U.S. 365, 384 (1986) (recognizing that, although under
Strickland counsel’s competence is presumed, the defendant may “rebut this
presumption by proving that his attorney’s representation was unreasonable under
prevailing professional norms”). “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’ not
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whether it deviated from best practices or most common custom.” Harrington v.
Richter,
562 U.S. 86, 105 (2011).
Rather than creating (or even permitting) a per se rule that the petitioner must
present counsel’s testimony to rebut the presumption, Strickland emphasized that
counsel’s performance must be judged “on the facts of the particular case, viewed
as of the time of counsel’s conduct.”
466 U.S. at 690. See also
id. at 688 (“[T]he
performance inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.”) (emphasis added). “Most important, in
adjudging a claim of actual ineffectiveness of counsel, a court should keep in mind
that the principles we have stated do not establish mechanical rules.”
Id. at 696. See
also Rompilla v. Beard,
545 U.S. 374, 381 (2005) (“A standard of reasonableness
applied as if one stood in counsel’s shoes spawns few hard-edged rules[.]”);
id. at
393–94 (2005) (O’Connor, J., concurring) (“[T]oday’s decision simply applies our
longstanding case-by-case approach to determining whether an attorney’s
performance was unconstitutionally deficient under Strickland[.]”) (emphasis
added).
The Supreme Court has ruled that state courts unreasonably applied Strickland
by requiring a petitioner to additionally show on the prejudice prong that the result
of the proceeding was fundamentally unfair, see Williams,
529 U.S. at 393–95; by
“deferring to counsel’s decision not to pursue a mitigation case despite their
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unreasonable investigation,” Wiggins v. Smith,
539 U.S. 510, 534 (2003); and by
concluding that, rather than examine their client’s prior conviction file, counsel
could ask the client and family relatives whether they recalled anything helpful or
damaging in the prior victim’s testimony, see Rompilla,
545 U.S. at 388–89. Here,
we agree with Justice Sotomayor that the Court of Criminal Appeals unreasonably
applied Strickland by creating a categorical rule requiring the testimony of counsel:
Strickland and its progeny establish that when a court is presented with
an ineffective-assistance-of-counsel claim, it should look to the full
record presented by the defendant to determine whether the defendant
satisfied his burden to prove deficient performance. The absence of
counsel’s testimony may make it more difficult for a defendant to meet
his burden, but that fact alone does not absolve a court of its duty to
look at the whole record and evaluate the reasonableness of counsel’s
professional assistance in light of that evidence.
Reeves, 138 S. Ct. at 26 (Sotomayor, J., dissenting from the denial of certiorari). If
the Court of Criminal Appeals were correct, then an ineffectiveness claim would be
barred as a matter of law if counsel had passed away or did not recall the reasons for
his conduct. Its per se rule is objectively unreasonable. 8
8
We recognize that only Supreme Court cases constitute clearly established law under § 2254(d).
We note, however, that we have considered the totality of the evidence in evaluating
ineffectiveness claims where trial counsel has not been able to provide meaningful testimony at a
post-conviction hearing, either because he had passed away or could not recall the pertinent events.
See Williams v. Head,
185 F.3d 1223, 1227–28 & 1234–35 (11th Cir. 1999) (considering the
totality of the evidence regarding mitigation investigation where trial counsel’s recollection of
events was hampered due to the loss of the case file); Callahan v. Campbell,
427 F.3d 897, 933–
36 (11th Cir. 2005) (examining the reasonableness of trial counsel’s performance in light of the
evidence in the record even though trial counsel did not testify at the Rule 32 hearing because he
had passed away).
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That Strickland does not demand counsel’s testimony is also clear from cases
in which the Supreme Court found ineffectiveness due to failure to investigate
despite such testimony. In those cases, the Court based its review on the full record.
See
id.
For example, in Williams,
529 U.S. at 392, the Supreme Court held that the
Virginia Supreme Court’s decision rejecting the petitioner’s ineffectiveness claim
was both contrary to, and an unreasonable application of Strickland. Though trial
counsel testified about his strategic decision before the state habeas court, see
id. at
373, the Court nonetheless concluded that “the failure to introduce the comparatively
voluminous amount of” mitigating evidence “was not justified by a tactical
decision[.]”
Id. at 396. Instead, the Court determined—based on the totality of the
evidence in the record—that counsel did not “fulfill their obligation to conduct a
thorough investigation of the defendant’s background.”
Id. Specifically, the Court
explained that “[t]he record establishes that counsel did not begin to prepare for [the
sentencing] phase of the proceeding until a week before the trial,” that counsel
“failed to conduct an investigation that would have uncovered extensive records
graphically describing [the petitioner’s] nightmarish childhood,” and that “[c]ounsel
failed to introduce available evidence that [the petitioner] was ‘borderline mentally
retarded’” or “even to return he phone call of a certified public accountant who had
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offered to testify that he had visited [the petitioner] frequently” in prison and he
seemed to thrive in a more structured environment. See
id. at 395–96.
Similarly, in Wiggins, the Supreme Court held that the Maryland Court of
Appeals unreasonably applied Strickland in rejecting the petitioner’s claim that his
trial attorneys rendered ineffective assistance by failing to investigate and present
mitigating evidence. Though trial counsel testified that they made a strategic
decision to focus on “retry[ing] the factual case” and dispute the petitioner’s
responsibility for the murder, see
539 U.S. at 517, the Supreme Court proceeded to
“conduct an objective review of their performance.”
Id. at 523.
In doing so, the Court considered other evidence in the record, noting that trial
counsel had available to them a written PSI, which included a one-page account of
the petitioner’s personal history, and records from the city department of social
services. See
id. The Court concluded that “[c]ounsel’s decision not to expand their
investigation beyond the PSI and the DSS records fell short of” professional
standards, and that the “scope of their investigation was also unreasonable in light
of what counsel actually discovered in the . . . records.”
Id. at 524–25. Namely, the
records revealed that the petitioner was “shuttled from foster home to foster home,”
that his mother was an alcoholic, that he had frequent, lengthy absences from school,
and that on at least one occasion, he was left alone for days without food. See
id. at
525. The Court also noted that “[d]espite the fact that the Public Defender’s office
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made funds available for the retention of a forensic social worker, counsel chose not
to commission [a social history] report.”
Id. at 524. The record thus established the
unreasonableness of counsel’s conduct, despite their testimony about having made
a strategic decision.
And in Porter,
558 U.S. at 39–40, the Supreme Court again concluded that
trial counsel’s decision not to investigate mitigating evidence “did not reflect
reasonable professional judgment,” despite trial counsel’s testimony at the
postconviction hearing. Reviewing counsel’s performance de novo, the Supreme
Court explained that the record reflected that “like the counsel in Wiggins, [trial
counsel] ignored pertinent avenues for investigation of which he should have been
aware.”
Id. at 40. For instance, the court-ordered competency evaluations indicated
that the petitioner spent very few years in regular school, served in the military and
sustained wounds in combat, and noted his father’s “over discipline.”
Id. Yet
counsel did not further investigate, and “thus failed to uncover and present any
evidence of [the petitioner’s] mental health or mental impairment, his family
background, or his military service.”
Id.
These Supreme Court cases demonstrate that, even when trial counsel does
testify that a decision not to investigate was made for a strategic reason, that
testimony may not establish adequate performance if it is rebutted by other evidence
in the record. As Justice Sotomayor stated: “It cannot be, then, that such testimony
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is necessary in every case. Where counsel does not testify but the defendant offers
other record evidence, a court can simply presume that counsel would have justified
his actions as tactical decisions and then consider whether the record rebuts the
reasonableness of the justification.” Reeves, 138 S. Ct. at 27 (Sotomayor, J.,
dissenting from the denial of certiorari).
Finally, the Supreme Court’s opinion in Massaro v. United States,
538 U.S.
500 (2003), further indicates that trial counsel’s testimony is not required for an
ineffective assistance of counsel claim. There, the Supreme Court held that failing
to raise an ineffective assistance of counsel claim on direct appeal does not bar the
claim from being brought in a later post-conviction proceeding under § 2255. See
id. at 509. But it declined to hold that ineffective-assistance claims must be reserved
for collateral review, recognizing that “[t]here may be cases in which trial counsel’s
ineffectiveness is so apparent from the record that appellate counsel will consider it
advisable to raise the issue on direct appeal. There may be instances, too, when
obvious deficiencies in representation will be addressed by an appellate court sua
sponte.” Id. at 508. The Court thus acknowledged that, in at least some cases,
ineffectiveness may be established based on the trial record and without testimony
from trial counsel or any other evidence presented on post-conviction review.
In view of these cases, “[t]here can be no dispute that the imposition of a
categorical rule that counsel must testify in order for a petitioner to succeed on a
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federal constitutional ineffective-assistance-of-counsel claim contravenes [the
Supreme Court’s] decisions requiring an objective inquiry into the adequacy and
reasonableness of counsel’s performance based on the full record before the court.”
Reeves, 138 S. Ct. at 23 (Sotomayor, J., dissenting from the denial of certiorari). The
Court of Criminal Appeals’ decision contravenes the command of Strickland that
courts are to consider “all the circumstances” rather than applying “mechanical
rules.” Strickland,
466 U.S. at 688, 696. The Court of Criminal Appeals thus
unreasonably applied Strickland by applying a per se rule that trial counsel’s failure
to testify was fatal to Mr. Reeves’ ineffective assistance of counsel claims, and by
refusing to consider or discuss the evidence in the record, discussed below,
establishing counsel’s deficient performance.
B
Because the Court of Criminal Appeals unreasonably applied Strickland, “we
are unconstrained by § 2254’s deference and must undertake a de novo review of the
record” to determine whether trial counsel’s performance was deficient. See
McGahee,
560 F.3d at 1266. The Court of Criminal Appeals never reached whether
trial counsel’s failure to retain a neuropsychologist was deficient, as its decision
rested solely on the lack of testimony from trial counsel at the Rule 32 hearing.
As the Supreme Court explained in Strickland, “counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
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investigations unnecessary.”
466 U.S. at 691. The Supreme Court has further
instructed that “[i]n assessing the reasonableness of an attorney’s investigation, . . .
a court must consider not only the quantum of evidence already known to counsel,
but also whether the known evidence would lead a reasonable attorney to investigate
further.” Wiggins,
539 U.S. at 527–28 (holding that “counsel chose to abandon their
investigation at an unreasonable juncture, making a fully informed decision with
respect to sentencing strategy impossible” in light of what the records that they
reviewed “actually revealed”). See also Porter,
558 U.S. at 40 (holding that counsel
performed deficiently because he “ignored pertinent avenues for investigation of
which he should have been aware”).
Here, under Williams, Wiggins, and Porter, the totality of the evidence
establishes that trial counsel ceased their investigation at an “unreasonable juncture.”
Wiggins,
539 U.S. at 527. The record includes trial counsel’s own statements that
retaining a neuropsychologist to evaluate Mr. Reeves was “the only avenue open to
the defense to compile” the “hundreds of pages of psychological, psychometric, and
behavioral analysis material relating to” Mr. Reeves. See D.E. 23-1 at 74–75. Trial
counsel also acknowledged that they had “hundreds” of pages of documents,
including records from the Department of Youth Services, school records, and other
mental health records that they believed would be “exceptionally pertinent at the
penalty phase.” D.E. 23-3 at 96. They further represented that a neuropsychologist
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was necessary “to assist [counsel] in the mitigation phase of the case,” even stating
that waiting until after the guilt phase to retain someone would be “a little late.” D.E.
23-3 at 92–93.
Indeed, trial counsel twice requested that the court appoint such an expert—
only to then neglect to hire Dr. Goff or any other neuropsychologist once the court
granted the request for funds. They never even contacted Dr. Goff, despite having
over three months to do so—as the funds to hire him were granted on October 16,
1997, and the trial began on January 26, 1998.
This conduct is particularly unreasonable and deficient in light of what trial
counsel actually knew about the need for an intellectual disability evaluation. See
Wiggins,
539 U.S. at 505. Among other things, the documents that trial counsel had
in their possession before trial included:
x Mental health records from the Cahaba Center for Mental Health reflecting
that Mr. Reeves was treated at the center for behavioral problems and ADHD
beginning when he was eight years old, that he was re-admitted for treatment
when he was 10 years old, and noting that “his intelligence is somewhat below
average” and his “[j]udgment and insights are poor.” See D.E. 23-19 at 1064–
65; D.E. 23–20 at 12.
x Records reflecting that Mr. Reeves was administered an IQ test when he was
14 years old and obtained a verbal IQ score of 75, a performance IQ score of
74, and a full-scale IQ score of 73. These records state that he is in the
“borderline range of intellectual functioning” and that he has “severe
deficiencies in non-verbal social intelligence skills and his ability to see
consequences.” D.E. 23-20 at 13, 57.
x Mental health and school records demonstrating that Mr. Reeves failed the
first, fourth, and fifth grades, that he was placed in special education services
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for “emotional conflict,” that he was “socially promoted to the seventh
grade,” and that he was expelled in eighth grade. See D.E. 23-20 at 12, 43,
88–90, 156.
x An outpatient forensic evaluation report from the Alabama Department of
Mental Health and Mental Retardation describing Mr. Reeves as having
“below normal intellectual functioning” in June of 1997. See D.E. 23-19 at
981–88.
The record further reflects that—in contravention of their own statement that
waiting until after the guilt phase would be too late—trial counsel did not speak to
Dr. Ronan about testifying on Mr. Reeves’ behalf until the day of the penalty phase.
And, despite specifically requesting the appointment of a neuropsychologist to do
an intellectual disability evaluation for mitigation, trial counsel relied on Dr.
Ronan—a clinical psychologist who had evaluated Mr. Reeves only for competency
to stand trial and his mental state at the time of the offense, and who had not
conducted an intellectual disability evaluation for mitigation.
At the Rule 32 proceedings, Mr. Reeves submitted an affidavit from Dr.
Ronan, in which she explained that she “was not requested to complete a sentencing
phase evaluation,” and she “had not conducted an extensive clinical evaluation
regarding mental retardation as that was not within the scope of [her] evaluation.”
D.E. 23-15 at 10. Specifically, Dr. Ronan testified that an “evaluation for [c]apital
sentencing would contain different components than those for the trial phase
evaluations, and would be more extensive in terms of testing and background
investigation.” Id. at 11. For example, Dr. Ronan only administered the verbal
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portion of an IQ test. Had she been conducting an intellectual disability evaluation,
the entire IQ test “would be required to be given,” and further investigation into
adaptive functioning would have been necessary. See id. The state’s own expert,
Dr. King, acknowledged that a “full scale IQ test” should be given to evaluate
intellectual disability. See D.E. 23-25 at 52.
Dr. Ronan further stated in her affidavit that “[a]ttorneys were routinely
informed as to the limitations” of her testimony for the capital penalty phase, “in that
the original evaluation was not performed for that purpose.” D.E. 23-15 at 10.
Despite this, Mr. Reeves’ trial counsel called Dr. Ronan as a witness. Under the
circumstances and our cases, it was not reasonable for trial counsel to rely on Dr.
Ronan, as she had only performed a competency evaluation and they did not speak
to her until the day of the penalty phase. See Debruce v. Comm’r, Ala. Dep’t of
Corr.,
758 F.3d 1263, 1273–74 (11th Cir. 2014) (holding that no lawyer could
reasonably forego the pursuit of mitigation evidence on the defendant’s mental
health “based on the results of [a] pre-trial report governing competency to stand
trial” because competency cannot be equated with guilt-phase mental health
defenses). See also Hardwick v. Crosby,
320 F.3d 1127, 1163 (11th Cir. 2003)
(“Regarding mental health evidence, our court has distinguished between its use
during the guilt phase to establish competency to stand trial and presenting mental
health mitigating evidence at the penalty phase.”); Blanco v. Singletary,
943 F.2d
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1477, 1503 (11th Cir. 1991) (“One can be competent to stand trial and yet suffer
from mental health problems that the sentencing jury and judge should have had an
opportunity to consider.”).
In denying relief on Mr. Reeves’ ineffective assistance of counsel claim, the
district court noted that the records obtained by trial counsel indicated that Mr.
Reeves was in the borderline range of intellectual functioning. As a result, the
district court concluded that they “cannot reasonably be faulted for failing to pursue
further expert inquiry into [his] intellectual functioning[.]” D.E. 29 at 49.9
But as the Supreme Court stated in Strickland, “strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”
466
U.S. at 690–91 (emphasis added). Given that trial counsel had already obtained the
funds to retain Dr. Goff—and was well aware that Mr. Reeves’ intellectual ability
was an important issue—counsel should have at least had his mental capacity
evaluated so that they could “mak[e] an informed choice among possible defenses.”
9
The Rule 32 court similarly concluded that when Dr. Ronan’s testimony is considered together
with the records collected by trial counsel, “there was no indication of a diagnosis of mental
retardation.” D.E. 23-16 at 155. But because the Court of Criminal Appeals applied its per se rule
requiring trial counsel’s testimony, it did not analyze counsel’s conduct and did not pass on the
Rule 32 court’s analysis. We therefore review only the decision of the Court of Criminal Appeals.
See Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018) (“when the last state court to decide a prisoner’s
federal claim explains its decision on the merits in a reasoned opinion,” a “federal habeas court
simply reviews the specific reasons given by the state court and defers to those reasons if they are
reasonable”).
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Wiggins,
539 U.S. at 525. See also Williams,
529 U.S. at 396 (holding that counsel’s
failure to investigate and present mitigating evidence was deficient even though “not
all of the additional evidence was favorable to Williams”); Jones v. Sec’y, Fla. Dep’t
of Corr.,
834 F.3d 1299, 1306–07 & 1312 n.6 (11th Cir. 2016) (holding that
counsel’s performance was deficient because he did not have the defendant
evaluated by a mental health expert despite evidence that neuropsychological testing
was needed, even though there were also other unfavorable psychological
evaluations in the defendant’s records, including notations that he was not suffering
from any mental illness). Cf. Sealey v. Warden,
954 F.3d 1338, 1356 (11th Cir.
2020) (noting that trial counsel’s decision not to further investigate the petitioner’s
mental health, despite having requested and received funding from the trial court for
a complete psychological evaluation, was “deeply troubling”).
We recognize, of course, that because a habeas petitioner bears the burden of
proving that his counsel’s performance was deficient, “the absence of evidence
cannot overcome the strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance.” Burt v. Titlow,
571 U.S. 12, 17 (2013)
(citation and internal quotation marks omitted); Chandler v. United States,
218 F.3d
1305, 1314 n.5 (11th Cir. 2000) (same). Presenting counsel’s testimony at a post-
conviction hearing may, therefore, be necessary to prove deficiency where the record
is otherwise silent. For example, in Jenkins v. Alabama Department of Corrections,
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963 F.3d 1248, 1265–66 (11th Cir. 2020), we held under AEDPA deference that a
petitioner claiming his counsel was ineffective for failing to investigate and present
mitigating evidence could not meet his burden of overcoming the presumption of
competence, in part because the attorney who was responsible for the penalty phase
did not testify at the Rule 32 hearing. The “record [was] silent as to [counsel’s]
thoughts and intentions as he prepared for the penalty phase,” and the “limited
record” that the petitioner did develop undermined his assertion that counsel
prepared inadequately. See
id.
Where the record is not silent, however, counsel’s testimony is not necessarily
required. For instance, in Buck v. Davis,
137 S. Ct. 759, 775 (2017), the Supreme
Court recently found deficient performance in a case where the state and lower
federal courts had concluded that the ineffective assistance of counsel claim was
procedurally defaulted. See
id. (finding deficient performance where, during the
penalty phase, trial counsel introduced testimony from an expert that the defendant
had a greater propensity for violence because of his race, as “[n]o competent defense
attorney would introduce such evidence about his own client”). It reached this
conclusion even though it appears that counsel did not testify at any post-conviction
hearing. See
id. at 769–770. Neither the Supreme Court, Fifth Circuit, nor district
court opinions referenced any testimony from trial counsel. See
id. at 775–76. See
also Buck v. Stephens, 623 F. App’x 668 (5th Cir. 2015); Buck v. Stephens, No. H-
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04-3965,
2014 WL 11310152 (S.D. Tex. Aug. 29, 2014); Buck v. Thaler, 452 F.
App’x 423 (5th Cir. 2011); Buck v. Thaler, 345 F. App’x 923 (5th Cir. 2009).
Here, as in Buck, the record is not silent. The record establishes that trial
counsel ended their investigation of Mr. Reeves’ intellectual ability at an
unreasonable time. They had numerous records pointing to Mr. Reeves’ low
intelligence and educational failures. And yet they failed to even contact Dr. Goff
after proclaiming their need for him and obtaining the funds to retain him. In view
of their awareness of the need for an intellectual disability evaluation, there can be
no valid strategic reason for this decision. Trial counsel’s performance was thus
deficient, given what Mr. Reeves’ records revealed.
C
As explained in cases like Brownlee v. Haley,
306 F.3d 1043, 1049–50 (11th
Cir. 2002), at the time of Mr. Reeves’ trial and sentencing hearing in 1998, an
Alabama jury performed an advisory role in a capital sentencing proceeding. The
jury, after hearing the evidence presented by the parties at the second phase of a
bifurcated proceeding, issued an advisory verdict recommending a sentence to the
trial court based on its evaluation of aggravating and mitigating factors. If the jury
found no statutory aggravating circumstances, or found that the statutory
aggravating circumstances did not outweigh the mitigating circumstances, it had to
return an advisory verdict recommending a sentence of life imprisonment without
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parole. See Ala. Code § 13A-5-46(e)(1)–(2) (2001). If, on the other hand, the jury
found that one or more statutory aggravating circumstances outweighed the
mitigating circumstances, it had to return an advisory verdict recommending a
sentence of death. See Ala. Code § 13A-5-46(e)(3) (2001). The decision to
recommend a sentence of death had to be based on a vote of at least 10 jurors. See
Ala. Code § 13A-5-46(f) (2001). The trial court, based upon its independent
determination and weighing of the aggravating circumstances, made the final
decision as to the appropriate sentence. See Ala. Code § 13A-5-47(d)–(e) (2001).10
The Court of Criminal Appeals did not reach the prejudice prong here, so we
review this element of the Strickland claim de novo. See Rompilla,
545 U.S. at 390.
“Given that the jury here recommended a sentence of death by the narrowest possible
vote, 10 to 2, [Mr. Reeves] need establish only ‘a reasonable probability that at least
one juror would have struck a different balance’ between life and death.” Jenkins,
963 F.3d at 1270 (quoting Wiggins,
539 U.S. at 537). He “need not show that
counsel’s deficient conduct more likely than not altered the outcome in the case.”
Strickland,
466 U.S. at 693. In assessing the reasonable probability of a different
result, we “consider the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh
10
In 2017 Alabama amended its capital sentencing scheme. See 2017 Ala. Laws Act 2017-131
(S.B. 16) (amending, e.g., Ala. Code. §§ 13A-5-46, 13A-5-47). The new provisions are not before
us in this appeal.
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it against the evidence in aggravation.” Porter,
558 U.S. at 41 (internal citation,
quotation marks, and alteration omitted).
In sentencing Mr. Reeves, the trial court found only one aggravating
circumstance: that the offense was committed during the course of a robbery. On
the other hand, the trial court found two statutory mitigating circumstances, his lack
of significant prior criminal activity and his age at the time of the offense, and two
non-statutory mitigating circumstances: he grew up in a poor home environment
without appropriate developmental resources and responds positively when placed
in a structured environment.
Although Mr. Reeves is not ineligible for the death penalty under Atkins, the
jury or trial court might have found other statutory or non-statutory mitigating
factors had evidence of his intellectual disability been presented, and thus weighed
the aggravating and mitigating circumstances differently. As Mr. Reeves asserts,
see Appellant’s Initial Br. at 64, his mental capacity is relevant to the statutory
mitigating circumstance of “[t]he capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law,”
Ala. Code § 13A-5-51(6) (2001), and two non-statutory mitigating factors under Ala.
Code § 13A-5-52 (2001) (“mitigating circumstance shall include . . . any other
relevant mitigating circumstance which the defendant offers”). See also Brownlee,
306 F.3d at 1071–73 (explaining that the jury could have found a non-statutory
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mitigating circumstance based on the petitioner’s “borderline intellectual
functioning and psychiatric disorders”). Cf. Tennard v. Dretke,
542 U.S. 274, 287
(2004) (recognizing that evidence of impaired intellectual functioning is “inherently
mitigating” even if the petitioner does not “establish a nexus between [his] mental
capacity and [his] crime”); Atkins,
536 U.S. at 305 (“Mentally retarded persons . . .
have diminished capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in logical reasoning,
to control impulses, and to understand the reactions of others. Their deficiencies do
not warrant an exemption from criminal sanctions, but diminish their personal
culpability.”).
The mitigating evidence that counsel failed to obtain and present was
powerful. At the Rule 32 hearing, Dr. Goff testified that Mr. Reeves was “mentally
retarded.” He also testified that Mr. Reeves read at a third-grade level, his other
academic skills were at a fourth-grade level, and he spelled at a fifth-grade level, and
that Mr. Reeves has had significant deficits in self-direction, functional academics,
work activities, and health and safety throughout his life.
The district court concluded that Mr. Reeves failed to show prejudice because
the jury was informed of his “lower intellectual functioning multiple times during
the penalty phase[.]” D.E. 29 at 50–51. During the penalty phase, however, trial
counsel only presented evidence that he was in the “borderline” range of intellectual
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ability, not that he was intellectually disabled. Indeed, the only evidence they put
on about his mental capacity undermined that finding, as the sole witness to testify
as to his intellectual ability during the penalty phase—Dr. Ronan—stated on cross
examination “[h]e was not in a level that they would call . . . mental retardation.”
Trial counsel did not object or clarify on re-direct examination that Dr. Ronan had
not conducted the necessary evaluation to make that determination. The jury thus
never heard from a qualified expert who had fully evaluated Mr. Reeves that he was
“mentally retarded.” In fact, they were told the opposite.
The jury or the trial court may have found Dr. Goff’s testimony particularly
relevant in light of Dr. Ronan’s and Dr. Salekin’s testimony that Mr. Reeves was
negatively influenced by his brother Julius—who was present for the offense and
conceived of the idea to rob Mr. Johnson—and that his low intellectual functioning
made him particularly susceptible to the influence of others. Had Dr. Goff’s
testimony been considered, there is a “reasonable probability that the advisory
jury—and the sentencing judge—‘would have struck a different balance.’” Porter,
558 U.S. at 42 (quoting Wiggins,
539 U.S. at 537). The neglected evidence here is,
in other words, “sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. See also Williams,
529 U.S. at 398 (explaining that evidence of the
petitioner’s childhood abuse and “the reality that he was ‘borderline mentally
retarded,’ might well have influenced the jury’s appraisal of his moral culpability”);
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Glenn v. Tate,
71 F.3d 1204, 1209–11 (6th Cir. 1995) (holding that the petitioner
was prejudiced by trial counsel’s failure to present evidence of his low intellectual
capacity, particularly because the jury was presented with a report stating that his
offense was not the result of “mental retardation”).
Although the state’s expert, Dr. King, testified that Mr. Reeves was in the
borderline range and was not intellectually disabled, this “does not justify
discounting [Mr. Reeves’] mitigating evidence.” Debruce, 758 F.3d at 1277. See
also Porter,
558 U.S. at 43 (holding that it was not reasonable for the Florida
Supreme Court to discount the effect that the petitioner’s expert might have had on
the jury or the sentencing judge based on the fact that the state’s expert provided
contradictory testimony). Significantly, some of Dr. King’s testimony was
consistent with Dr. Goff’s, including that Mr. Reeves’ full-scale IQ score of 68
indicated significantly subaverage intellectual functioning and that Mr. Reeves had
low test scores in certain areas of adaptive functioning.
The state, moreover, “does not point to any additional aggravating evidence
that would have been introduced had counsel presented testimony” about Mr.
Reeves’ intellectual disability. See
id. And we repeat that the trial court found only
one aggravating circumstance and four mitigating circumstances, none of which
dealt with Mr. Reeves’ intellectual ability. Accordingly, we conclude that “the
available mitigating evidence, taken as a whole, might well have influenced the
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jury’s [or the trial judge’s] appraisal” of Mr. Reeves’ moral culpability. See Wiggins,
539 U.S. at 538 (citation and internal quotation marks omitted).
V
For the foregoing reasons, we affirm the ruling of the district court as to Mr.
Reeves’ claim that he is intellectually disabled and thus ineligible for the death
penalty. We reverse the ruling of the district court as to Mr. Reeves’ claim of
ineffective assistance of counsel at the penalty phase and remand to the district court
for issuance of the writ in the form of a new capital sentencing hearing for Mr.
Reeves.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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