State of Florida v. Khadafy Kareem Mullens ( 2022 )

Supreme Court of Florida
____________
No. SC19-1587
____________
STATE OF FLORIDA,
Appellant/Cross-Appellee,
vs.
KHADAFY KAREEM MULLENS,
Appellee/Cross-Appellant.
August 31, 2022
PER CURIAM.
The State of Florida appeals and Khadafy Kareem Mullens
cross-appeals the postconviction court’s order partially granting
Mullens’s motion to vacate his first-degree murder convictions and
sentences of death pursuant to Florida Rule of Criminal Procedure
3.851.1 For the reasons given below, we reverse the granting of a
new penalty phase but affirm in all other respects.
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
I. BACKGROUND
The crimes giving rise to this case occurred at a convenience
store in Pinellas County and were recorded by the store’s
surveillance cameras. As seen on the surveillance footage, Mullens
and Spencer Peeples entered the store together in the early evening.
Mullens approached the front counter where he made contact with
the store’s owner, Mohammed Uddin. Moments later, after
obtaining items in the store, Peeples joined Mullens at the front
counter.
Mullens then walked to the store’s main entrance where he
maintained focus on Uddin. While Mullens was at the main
entrance, Peeples began threatening Uddin with a loaded revolver.
In response, Uddin fell backwards and attempted to hide behind the
front counter. Mullens and Peeples immediately went behind the
front counter and demanded that Uddin give them money from the
register.
While Uddin was in the process of opening the register, Ronald
Hayworth entered the store and approached the front counter.
Despite Hayworth’s presence, Peeples continued taking money from
the register. After clearing the register, Peeples and Mullens asked
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Uddin about nearby VCR equipment (which was then inoperable).
Peeples removed the VCR equipment, later handing it to Mullens.
Mullens and Peeples then demanded Uddin’s car keys. When
Uddin did not immediately comply, Mullens and Peeples took turns
threatening him with the revolver while the other gathered
additional items from the store—including lottery tickets.
Eventually, Uddin gave up his car keys.
With Uddin’s car keys and two bags of stolen items, Peeples
exited the store. Mullens, however, remained inside. Armed with
the revolver, Mullens alternated between looking through the doors
and monitoring the store. Eventually, Mullens opened the door and
leaned outside. From Uddin’s perspective, it appeared as though
Mullens had left the store. Seizing upon this perceived opportunity,
Uddin picked up the phone located behind the front counter and
began making a call.
As Uddin was making the call, Mullens shut the door and
noticed Uddin holding the phone. He walked over to Uddin,
pointing the revolver at Uddin’s head. As he neared Uddin, Uddin
screamed and sought to direct the firearm away from his face,
which gave rise to a brief struggle. Despite Uddin’s resistance,
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Mullens was able to point the revolver directly at Uddin’s face and
pull the trigger. The bullet struck Uddin in the face, killing him
almost instantly. Uddin slumped over and fell to the floor.
After killing Uddin, Mullens turned his attention to Hayworth,
who had remained in the store but was not in any way blocking
Mullens’s ability to leave. Mullens walked over to Hayworth,
grabbed him, slammed him onto the floor, and then shot him in the
face from nearly point-blank range—killing him. At no point during
the entire episode did Hayworth confront or resist Mullens or
Peeples.
Mullens then proceeded to the main entrance. As Mullens
neared the doors, a would-be patron, Albert Barton, started to enter
the store. Sensing something was amiss, Barton attempted to
backtrack, but Mullens pulled him into the store. A struggle
ensued during which Mullens’s revolver malfunctioned.
Nevertheless, despite the issues with the revolver, Mullens managed
to fire it three times, hitting Barton once in the head. Unlike Uddin
and Hayworth, Barton survived the brutal attack.
After shooting Barton, Mullens calmly gathered the stolen
items—including the lottery tickets—and left the store. He then
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entered Uddin’s vehicle which Peeples had since relocated, and the
two left the scene just moments before law enforcement arrived.
Later that day, with the benefit of the store’s surveillance
video, law enforcement issued a BOLO, 2 which included a
description of Mullens, Peeples, and the stolen car. Mullens was
arrested the following morning. Immediately prior to his arrest,
Mullens discarded some of the stolen lottery tickets.
Ultimately, the State charged Mullens with two counts of first-
degree murder and one count of attempted first-degree murder. For
the two counts of first-degree murder, the State sought the death
penalty.
Thereafter, Mullens asked the trial court to declare him
incompetent to proceed. At a hearing spanning several days, the
court heard the testimony of Mullens’s retained expert, Dr. Scot
Machlus, and two court-appointed experts, Dr. Jill Poorman and
Dr. Peter Bursten. For her part, Dr. Poorman testified that Mullens
was fully competent and that he was feigning symptoms in order to
2. BOLO stands for “be on the lookout.”
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benefit himself. Crediting that testimony, the court found Mullens
competent to proceed.
Eventually, after many discussions with his family and
counsel, Mullens pled guilty to the charged crimes and waived a
penalty-phase jury. At a hearing on those issues, the court asked
Mullens questions related to his understanding of the charges, the
posture and nature of the case, his decision to plead guilty, and the
effect of waiving a penalty-phase jury. Satisfied with Mullens’s
responses, the court accepted the guilty pleas and jury waiver.
At the ensuing penalty phase, the State called several
witnesses, including law enforcement officers and a medical
examiner. In addition, the State introduced surveillance videos and
still pictures from the convenience store as well as judgments and
sentences documenting Mullens’s prior violent felony convictions. 3
After the State rested, Mullens presented mitigating evidence.
He called a number of friends and family who spoke of his difficult
childhood, poor performance in school, below-average intelligence,
3. The judgments and sentences included convictions for
attempted burglary, resisting an officer with violence, aggravated
battery, and battery on a law enforcement officer.
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behavioral issues, and mental illnesses within his family. In
addition, Mullens called Dr. Machlus as an expert witness.
Consistent with past diagnoses by other professionals, Dr. Machlus
opined that Mullens has bipolar I disorder (mixed). He also
diagnosed Mullens with a personality disorder (unspecified) and
polysubstance dependency. Based on the foregoing, he opined that
Mullens’s capacity to conform to the law’s requirements was
substantially impaired and that Mullens was experiencing an
extreme emotional or mental disturbance at the time of the crimes.
Ultimately, the trial court sentenced Mullens to death for each
murder. In its sentencing order, the court found three aggravating
factors, namely: (1) Mullens had been convicted of prior violent
felonies, which included the contemporaneous murders of Uddin
and Hayworth and the attempted murder of Barton; (2) Mullens
committed the murders while in the course of a robbery; and
(3) Mullens committed the murders to avoid arrest. To each
aggravating circumstance, the court assigned great weight. As for
mitigating circumstances, the court found two statutory ones—
Mullens’s ability to conform to the law was substantially impaired
at the time of the murders and he was also acting under an extreme
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emotional disturbance. The court assigned moderate weight to
each circumstance. In addition, the court found six consolidated
nonstatutory mitigating circumstances, assigning weight ranging
from little to some. The court, however, rejected the proposed
mitigating circumstance that Mullens was sexually abused by his
stepfather and prison inmates. According to the court, the greater
weight of the evidence did not support the sexual-abuse allegations.
Ultimately, the court concluded that the aggravating circumstances
“far outweigh[ed] the mitigating circumstances, which fail[ed] to
reach the magnitude of the aggravating factors.”
Mullens appealed, raising several arguments for our review.
Mullens v. State, 197 So. 3d 16, 25-40 (Fla. 2016). We rejected all
arguments directed at the penalty phase except one. Specifically,
we concluded that insufficient evidence supported the avoid-arrest
aggravator related to Uddin. Id. at 29. Nevertheless, we upheld
that aggravator as to Hayworth. Id. We further held that Hurst v.
State, 202 So. 3d 40, 43 (Fla. 2016), receded from in part by State
v. Poole, 297 So. 3d 487 (Fla. 2020), did not apply to Mullens since
he waived a penalty-phase jury. 197 So. 3d at 39-40. Ultimately,
finding Mullens’s plea to be knowing, intelligent, and voluntary, id.
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at 35-37, we affirmed the judgments and sentences of death and
remanded for the sole purpose of entering a written order of
competency, id. at 40.
After the Supreme Court denied his petition for certiorari,
Mullens v. Florida, 137 S. Ct. 672 (2017), Mullens filed a
postconviction motion under rule 3.851, which he later amended.
In the amended motion, Mullens raised three claims of ineffective
assistance of counsel, an intellectual-disability claim, a claim of
cumulative error, and four purely legal claims.
Following a Huff4 hearing, the postconviction court summarily
denied the four purely legal claims. But it granted a hearing on all
remaining claims except for the cumulative-error claim for which
the court reserved a ruling. After the evidentiary hearing, 5 the
court entered the order now under review. In that order, the court
granted a new penalty phase based on a finding that counsel was
deficient in investigating and presenting mitigating evidence, which
4. Huff v. State, 622 So. 2d 982 (Fla. 1993).
5. Dr. Machlus did not testify at the hearing.
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prejudiced Mullens. It, however, denied the balance of the pending
claims. The State now appeals, and Mullens cross-appeals.
II. APPEAL
The State challenges the postconviction court’s decision to
grant a new penalty phase. According to the State, that ruling
contravenes several legal principles and is not supported by the
record in certain respects. We agree. In reaching this conclusion,
we discuss background legal principles, summarize the grounds
upon which the court granted relief, and explain why none of the
grounds support the court’s ruling.
A. Background Principles
“The Sixth Amendment guarantees ‘the right to the effective
assistance of counsel’ ” at all critical phases, Dilang Dat v. United
States, 983 F.3d 1045, 1047 (8th Cir. 2020) (quoting Strickland v.
Washington, 466 U.S. 668, 686 (1984)), including the penalty phase
of a death penalty proceeding, e.g., Wiggins v. Smith, 539 U.S. 510,
521 (2003). “Penalty phase claims of ineffective assistance of
counsel are reviewed under the two-prong test established by
Strickland.” Salazar v. State, 188 So. 3d 799, 814 (Fla. 2016).
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Thus, to succeed on a penalty-phase claim, a defendant must prove
both deficient performance and prejudice:
First, the claimant must identify particular acts or
omissions of the lawyer that are shown to be outside the
broad range of reasonably competent performance under
prevailing professional standards. Second, the clear,
substantial deficiency shown must further be
demonstrated to have so affected the fairness and
reliability of the proceeding that confidence in the
outcome is undermined.
Brown v. State, 304 So. 3d 243, 257 (Fla. 2020) (quoting Bolin v.
State, 41 So. 3d 151, 155 (Fla. 2010)).
As for performance, “an attorney has a strict duty to conduct a
reasonable investigation of a defendant’s background for possible
mitigating evidence.” Valentine v. State, 98 So. 3d 44, 53
(Fla. 2012) (quoting State v. Riechmann, 777 So. 2d 342, 350
(Fla. 2000)). “In 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.”
Salazar, 188 So. 3d at 817 (quoting Wiggins, 539 U.S. at 527).
Moreover, in discussing counsel’s duty to investigate, we and
other courts have made clear that counsel is entitled to rely on a
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qualified expert’s opinion, and that such reliance is not rendered
unreasonable just because a new expert in postconviction
proceedings disagrees with trial counsel’s expert. See Brant v.
State, 197 So. 3d 1051, 1069 (Fla. 2016) (“[W]e have repeatedly
stated that trial counsel is not deficient because the defendant is
able to find postconviction experts that reach different and more
favorable conclusions than the experts consulted by trial counsel.”);
Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. 2016) (“Counsel
should be permitted to rely upon the objectively reasonable
evaluations and opinions of expert witnesses without worrying that
a reviewing court will substitute its own judgment, with the
inevitable hindsight that a bad outcome creates, and rule that his
performance was substandard for doing so.” (quoting Smith v.
Cockrell, 311 F.3d 661, 675-76 (5th Cir. 2002), abrogated on other
grounds by Tennard v. Dretke, 542 U.S. 274 (2004))). And, more
generally, we have stressed that when assessing performance under
Strickland, “there is a ‘strong presumption’ that trial counsel’s
performance ‘falls within the wide range of reasonable professional
assistance.’ ” Brown, 304 So. 3d at 257 (quoting Strickland, 466
U.S. at 689).
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Turning to prejudice—specifically prejudice in the penalty-
phase context—a defendant must demonstrate that “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.” Sochor v. State,
883 So. 2d 766, 771 (Fla. 2004) (quoting Strickland, 466 U.S. at
695). In making that assessment, we consider the totality of the
mitigating evidence—presented at both the penalty phase and
evidentiary hearing—and reweigh it against the aggravating
evidence. Brooks v. State, 175 So. 3d 204, 230 (Fla. 2015).
Accordingly, we view “the sentence of death in the context of the
penalty phase evidence, the mitigating and aggravating
circumstances found, and the previously undiscovered
postconviction evidence.” State v. Bright, 200 So. 3d 710, 734 (Fla.
2016) (citing Hurst v. State, 18 So. 3d 975, 1013 (Fla. 2009)).
On appeal of a postconviction court’s ruling on a Strickland
claim, we apply a mixed standard of review. See Martin v. State,
311 So. 3d 778, 792 (Fla. 2020). We accept the court’s factual
findings to the extent they are supported by competent substantial
evidence. Id. Our deference to supported factual findings does not
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extend to the postconviction court’s ultimate conclusions on the
deficient performance and prejudice prongs. See King v. State, 260
So. 3d 985, 994 (Fla. 2018) (deference only given to “factual
findings” (quoting Eaglin v. State, 176 So. 3d 900, 906 (Fla. 2015));
Bruno v. State, 807 So. 2d 55, 62 (Fla. 2001) (characterizing
determinations of deficient performance and prejudice as “ultimate
conclusions” of law). In assessing those conclusions, our review is
de novo. See Bruno, 807 So. 2d at 62.
B. The Postconviction Court’s Ruling
The postconviction court gave several reasons for finding
counsel’s performance to be deficient. It found counsel deficient for
presenting only speculative evidence that Mullens had been
sexually abused by his stepfather and prison inmates. In addition,
the court stressed that counsel had failed to seek
neuropsychological testing and overlooked evidence and indicators
of FASD, 6 PTSD, brain damage, and possible intellectual disability.
The court also faulted counsel for failing to adequately supervise
Dr. Machlus and presenting an incoherent narrative during the
6. FASD stands for fetal alcohol spectrum disorder.
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penalty phase. We address each basis, holding that none supports
the legal conclusion that counsel was deficient.
C. Deficient Performance
(1) Sexual Battery
In finding counsel deficient for presenting only speculative
evidence of sexual battery, the postconviction court relied solely on
the testimony of two experts retained during postconviction
proceedings—Dr. Michael Maher (a psychiatrist) and Dr. Robert
Ouaou (a neuropsychologist). Both testified that they believed
Mullens’s sexual-abuse allegations, stressing the masturbation-like
motion he made while discussing the alleged incidents.
We conclude that the postconviction court legally erred in
finding deficient performance based on the testimony of Mullens’s
two experts. Both Dr. Machlus and the two postconviction experts
based their sexual-abuse opinions on assessments of Mullens. Of
significance, the postconviction court did not identify any objective
evidence available to trial counsel that would have corroborated the
sexual-battery allegations or that should have been provided by
counsel to Dr. Machlus so that he could have given more effective
testimony on this subject. Thus, the court essentially faulted
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counsel for not finding experts who could have offered more
favorable testimony than Dr. Machlus based on the same source of
information that Dr. Machlus consulted. However, we have
repeatedly held that counsel is not deficient simply because
postconviction counsel secures a more favorable expert. See
Valentine, 98 So. 3d at 53; Hoskins v. State, 75 So. 3d 250, 255
(Fla. 2011). We further note that the testimony of Mullens’s experts
was no less speculative than Dr. Machlus’s penalty phase
testimony, which the trial court did not credit.
(2) PTSD, Possible Intellectual Disability, FASD and Traumatic
Brain Damage
At the evidentiary hearing, Dr. Maher opined that Mullens
suffers from PTSD, FASD, and possibly traumatic brain injury. For
his part, Dr. Ouaou testified that he conducted a
neuropsychological evaluation of Mullens—the result of which
informed his conclusion that Mullens was intellectually disabled
and showed signs of brain damage. The postconviction court relied
heavily on those opinions in finding counsel deficient. However, in
doing so, the court contradicted the principle that counsel is
entitled to rely on a qualified expert even when postconviction
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experts later disagree with that expert’s opinion. See Brant, 197 So.
3d at 1069.
Here, trial counsel retained Dr. Machlus, an experienced and
well-trained psychologist, to assist in developing mitigating
evidence. Dr. Machlus has a master’s degree and a doctorate in
psychology, is licensed in Florida and New York, is board certified,
has been practicing since 1988, and is published. In addition, Dr.
Machlus was highly recommended to counsel. 7 Accordingly, the
record demonstrates that Dr. Machlus was a qualified expert upon
whom counsel was entitled to rely in tailoring a penalty-phase
strategy.
Dr. Machlus reviewed voluminous records, spoke with Mullens
at least 12 times, interviewed close family members, and conducted
various tests involving Mullens. Based on that exhaustive work,
Dr. Machlus concluded that Mullens suffered from bipolar disorder,
a personality disorder, and polysubstance dependency. However,
Dr. Machlus ruled out other potential causes for Mullens’s criminal
conduct, like PTSD. And, consistent with counsel’s strategy, Dr.
7. After observing Dr. Machlus’s testimony at the competency
hearing, the trial court observed, “I think he’s a solid professional.”
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Machlus gave testimony at the penalty phase which provided the
basis for two statutory mitigators—giving moderate weight to each—
and helped establish three consolidated nonstatutory factors.
As noted above, in finding deficient performance, the court
relied on a postconviction diagnosis of PTSD rendered by Dr.
Maher. But such reliance is misplaced. Dr. Machlus expressly
determined that Mullens did not suffer from PTSD. Trial counsel
was entitled to rely on that determination, notwithstanding the fact
that Dr. Maher later reached a contrary conclusion. See Brant, 197
So. 3d at 1069; Valentine, 98 So. 3d at 53; Darling v. State, 966 So.
2d 366, 377 (Fla. 2007).
Similarly, the court’s reliance on possible intellectual disability
is misplaced. After performing the WAIS IV test, 8 Dr. Machlus
determined that Mullens had an IQ of 83. That result would have
been a significant, if not insurmountable, obstacle to success on an
intellectual-disability claim. See Haliburton v. State, 331 So. 3d
640, 652 (Fla. 2021) (characterizing first prong of intellectual
disability test—i.e., significantly subaverage general intellectual
8. WAIS stands for Wechsler Adult Intelligence Scale.
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functioning—as “threshold” and “independent” requirement not to
be “cast aside in the name of ‘holistic review’ ” (quoting Walls v.
State, 213 So. 3d 340, 350 (Fla. 2016) (Canady, J., dissenting));
Franqui v. State, 301 So. 3d 152, 154 (Fla. 2020) (“If the defendant
fails to prove any one of the[] components [of an intellectual-
disability claim], the defendant will not be found to be intellectually
disabled.” (quoting Salazar, 188 So. 3d at 812)). Again, counsel
was entitled to rely on that determination concerning Mullens’s
general intellectual functioning. See Valentine, 98 So. 3d at 53;
Darling, 966 So. 2d at 377. Indeed, even postconviction counsel
conceded below: “[W]e cannot in good faith allege that the trial
attorneys were ineffective for [not] raising [the claim] . . . because
they had a defense expert that gave them the IQ of 83 that--and
they are reasonably allowed to rely on that expert’s opinion. That’s
what the law says.” And, although Dr. Ouaou questioned the
validity of the IQ test, the record does not demonstrate that trial
counsel had an objective basis for questioning the validity of Dr.
Machlus’s test administration. 9
9. We acknowledge a prior low IQ score from Mullens in the
record. But, in light of higher scores on comparable tests, a
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As to FASD and brain damage, the court faulted counsel for
failing to retain a neuropsychologist to perform neuropsychological
testing on Mullens. However, that criticism again ignores the
analysis and conclusions rendered by Dr. Machlus and Dr. Michael
Gamache10—analysis on which counsel was entitled to rely under
our case law. Dr. Gamache, a neuropsychologist, reviewed
voluminous records related to Mullens and personally examined
him—but did not ultimately testify at the penalty phase. For his
part, Dr. Machlus conducted extensive testing, interviewed Mullens
at least 12 times, and even spoke with Mullens’s family members.
The record reveals that Dr. Machlus was made aware of the
allegations of Mullens’s mother drinking during her pregnancy with
him. And the record also reveals that Dr. Machlus and Dr.
Gamache spoke with individuals—including Mullens—who had (or
would have had) knowledge of the alleged undocumented head
retained expert’s stated belief that the score was low due to
Mullens’s lack of cooperation, and Mullens’s documented history of
malingering, we do not think that the low score renders
unreasonable counsel’s express reliance on the result of the IQ test
administered by Dr. Machlus.
10. Mullens does not seek to undermine Dr. Gamache’s
credentials or qualifications.
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trauma. Ultimately, both experts offered various views on
Mullens—including those contained in a thorough report by Dr.
Machlus. But, in the final analysis, neither expert recommended
that Mullens undergo neuropsychological testing. Counsel was
entitled to rely on their assessments in developing its mitigation
strategy and cannot be deemed deficient for not requesting
additional testing. See Valentine, 98 So. 3d at 53; Darling, 966 So.
2d at 377.
We have not overlooked (1) Mullens’s lead attorney’s testimony
that she was somewhat confused as to Dr. Machlus’s background,
(2) a note indicating that Dr. Gamache thought that Mullens might
have frontal lobe impairment, (3) an unexplained attorney note
suggesting that Mullens did not have a history of head trauma, and
(4) the retained mitigation specialist’s testimony expressing
disagreement with some of Dr. Machlus’s views on mitigation.
Quite simply, none of this evidence undermines the unrebutted
evidence that Dr. Machlus and Dr. Gamache were qualified
competent experts on whom counsel was entitled to rely in
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investigating and presenting mitigating evidence. 11 Nor, in our
view, is that evidence sufficient to render such reliance
unreasonable.12
This leads us to what we discern as the dissent’s primary
criticism of our analysis. According to the dissent, we have
disregarded the postconviction court’s findings—findings that are
supported by competent substantial evidence. In doing so, asserts
the dissent, we have overlooked the well-settled standard of review.
We do not think this criticism is well founded.
Except for the postconviction court’s findings related to the
sexual-battery ground—which we found speculative in part—we
have not questioned the accuracy of the postconviction court’s
11. The postconviction court noted that Dr. Machlus was the
sole expert who testified for the defense at the penalty phase. The
court did not cite, nor has Mullens called our attention to, any
decision holding counsel deficient for presenting only one expert
witness.
12. Although the postconviction experts’ diagnoses appear
consistent with the mitigation specialist’s concerns and
recommendations, that consistency does not support a
determination of deficient performance. When assessing counsel’s
performance, our focus is on the circumstances existing at the time
of the challenged conduct without resort to hindsight. See Dennis
v. State, 109 So. 3d 680, 690 (Fla. 2012).
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expansive summary of the evidence presented at the hearing.
Instead, as stated elsewhere, we have concluded that the court
legally erred when it determined that Mullens had demonstrated
deficient performance—an error stemming from its failure to
recognize the significance of the undisputed fact that trial counsel
hired qualified experts to assist in developing the mitigation
strategy and that counsel relied on those experts. To this point,
nowhere in its order did the postconviction court acknowledge the
principle that counsel is entitled to rely on qualified experts in
developing and presenting mitigating evidence—a principle firmly
embedded in our case law.13 The court’s error in this regard is not
lessened by its expansive factual summary.
13. Consistent with its failure to state or apply this principle,
the postconviction court never found that Dr. Machlus was not a
qualified competent expert. Instead, the postconviction court
focused on the differences between the views of Dr. Machlus and
those of the postconviction experts—favoring the latter’s analysis.
Rather than rely on differences of that sort, our cases have focused
on the reasonableness of counsel’s reliance on the experts that trial
counsel actually retained. See Brown, 304 So. 3d at 269; Brant,
197 So. 3d at 1069; Hernandez v. State, 180 So. 3d 978, 1013 (Fla.
2015).
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(3) Failure to Adequately Supervise Dr. Machlus
The postconviction court also ruled that counsel should have
better supervised Dr. Machlus, who did not have prior experience in
capital cases. 14 We disagree. In reaching this holding, we find the
following rationale, as articulated by a federal appeals court,
persuasive:
If an attorney has the burden of reviewing the
trustworthiness of a qualified expert’s conclusion before
the attorney is entitled to make decisions based on that
conclusion, the role of the expert becomes superfluous.
....
. . . By forcing lawyers to second-guess their
experts, the position Hendricks argues would effectively
eliminate the legitimate role experts play in guiding and
narrowing an attorney’s investigation.
Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995).
(4) Incoherent Narrative
In addition, the postconviction court also stressed that
counsel failed to present a cohesive narrative. The court did not
explain how counsel’s narrative was disjointed. That unexplained
14. Like the postconviction court, the dissent also notes that
Dr. Machlus did not have prior experience in death-penalty cases.
However, neither the dissent nor Mullens has cited any case
suggesting that this circumstance would render unreasonable
counsel’s reliance on Dr. Machlus.
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finding aside, we have independently reviewed the penalty-phase
transcript and the written closing arguments. Based on that
review, we find that trial counsel’s chosen narrative comports with
objective standards of reasonableness. See Sheppard v. State, 338
So. 3d 803, 816 (Fla. 2022) (discussing Strickland requirement that
defendant prove that challenged action falls below objective bounds
of reasonableness under prevailing norms). Counsel put on
evidence of Mullens’s difficult childhood, below average intelligence,
poor scholastic performance, and mental-health and substance-
abuse issues. The narrative included compelling testimony from
Mullens’s mother. In short, the narrative was sensible, coherent,
and effective in that it resulted in the finding of two statutory and
six consolidated nonstatutory mitigating circumstances. To the
extent Mullens argues that trial counsel should have placed greater
stress on the timing of Mullens’s stepfather’s death (which occurred
shortly before the murders), that argument lacks merit. See
Harrington v. Richter, 562 U.S. 86, 109 (2011) (“There is a ‘strong
presumption’ that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than ‘sheer neglect.’ ”
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(emphasis added) (quoting Yarborough v. Gentry, 540 U.S. 1, 8
(2003))). 15 16
In sum, because Mullens did not meet his burden to show that
counsel’s investigation and presentation of mitigating evidence was
“outside the broad range of reasonably competent performance
under prevailing professional standards[,]” Guardado v. State, 176
So. 3d 886, 892 (Fla. 2015) (quoting Walker v. State, 88 So. 3d 128,
134 (Fla. 2012)), the postconviction court erred in finding counsel
deficient.
15. In finding counsel deficient, the postconviction court also
noted as “interesting” the poor communication among the defense
team, one attorney’s alcohol abuse, and another’s depression.
However, these generalized grievances do not meet Strickland’s
particularity requirement—mandating that defendants identify
particular acts or omissions that fall below objective bounds of
reasonableness. See Conde v. State, 35 So. 3d 660, 664 (Fla. 2010).
And, to the extent that these issues bore on the alleged failings
discussed above, they do not provide an independent basis for
finding counsel deficient. See Hilton v. State, 326 So. 3d 640, 650
(Fla. 2021).
16. In his answer brief, Mullens underscores testimony by
one of the defense attorneys stating a belief that the defense team
did a poor job. However, the “Strickland standard of objective
reasonableness does not depend on the subjective intentions of the
attorney, judgments made in hindsight, or an attorney’s admission
of deficient performance.” O’Neal v. Burt, 582 Fed. Appx. 566, 572
(6th Cir. 2014) (quoting Jennings v. McDonough, 490 F.3d 1230,
1247 (11th Cir. 2007)).
- 26 -
D. Prejudice
However, even if counsel had performed deficiently, we would
reverse as Mullens also failed to demonstrate prejudice. Like the
deficient performance inquiry, prejudice presents a pure legal
matter when, as here, the inquiry does not depend on factual
issues. Based on our de novo review, see Brown, 304 So. 3d at
257, we find error in the postconviction court’s determination of
prejudice.
As alluded to above, “penalty-phase prejudice under the
Strickland standard is measured by ‘whether the error of trial
counsel undermines this Court’s confidence in the sentence of
death when viewed in the context of the penalty phase evidence and
the mitigators and aggravators found by the trial court.’ ” Wheeler
v. State, 124 So. 3d 865, 873 (Fla. 2013) (quoting Hurst, 18 So. 3d
at 1013). We now discuss these factors and why they do not
support the postconviction court’s ruling.
Here, the trial court found three aggravating circumstances—
Mullens was “previously convicted” of violent felonies (i.e., the
contemporaneous murders and the attempted murder of Barton),
the murders occurred during the course of an armed robbery, and
- 27 -
(as to Hayworth) the murder was committed to avoid arrest. 17 The
court assigned great weight to each aggravator. Of note, we have
repeatedly characterized the prior-violent-felony and armed-robbery
aggravators as “among the most serious aggravating
circumstances.” Wilcox v. State, 143 So. 3d 359, 387 (Fla. 2014)
(citing Chamberlain v. State, 881 So. 2d 1087, 1109 (Fla. 2004);
Walker v. State, 957 So. 2d 560, 585 (Fla. 2007)); see also Silvia v.
State, 60 So. 3d 959, 974 (Fla. 2011) (prior violent felonies
considered “one of the weightiest aggravators” (citing Sireci v. Moore,
825 So. 2d 882, 887 (Fla. 2002))). We further stress that the State’s
proof of aggravating factors—consisting of detailed surveillance
video and judgments and sentences—would not have been
undermined in any respect by Mullens’s evidence at the
postconviction hearing.
As for mitigation, the trial court found two statutory
mitigators—substantial impairment and extreme emotional
disturbance—assigning moderate weight to each. The court also
17. We do not rely on the avoid-arrest aggravator as to Uddin.
- 28 -
found six (consolidated) nonstatutory mitigating circumstances—
assigning various weight ranging from little to some.
Despite the substantial mitigation presented, the trial court
concluded that the aggravating circumstances “far outweigh[ed]” the
mitigating circumstances. In finding counsel ineffective, the
postconviction court relied principally on the testimony of two
postconviction experts and their overall observations of Mullens.
But, in our view, there is no reasonable probability that such
evidence would have altered the balance of aggravating and
mitigating circumstances.
First, the experts’ opinion was contradicted by certain
evidence presented at the penalty phase. The surveillance video
depicts in graphic detail Mullens brutally killing Uddin and
Hayworth and attempting to kill Barton. That video also shows
Mullens engaging in goal-oriented conduct and overcoming
difficulties in accomplishing the crimes. For instance, Mullens was
able to overcome an issue with the defective revolver while in the
midst of a physical struggle with Barton. Indeed, the postconviction
experts did not explain how any of their diagnoses were consistent
- 29 -
with the video evidence. 18 Nor did they explain how Mullens’s
improvement while on medications would be consistent with a
finding of permanent brain damage.
Second, the postconviction experts’ opinions lacked
corroboration. Drs. Maher and Ouaou both noted the importance of
brain scans as confirming brain damage, but the court discounted
the only brain scans admitted at the hearing as unpersuasive.
Thus, the corroboration—which both experts claimed to be of great
significance—was lacking. Moreover, apart from Dr. Maher’s
bipolar diagnosis, the other diagnoses by Drs. Maher and Ouaou
are not supported by pre-penalty-phase records. Similarly, the
postconviction experts’ opinions credited the allegations of head
injury for which there was absolutely no documentation.
Third, the opinions of Drs. Maher and Ouaou lacked specific
details as to Mullens’s mindset at the time of the murders. While
the trial court, in its sentencing order, faulted Dr. Machlus for not
obtaining that information, neither Dr. Maher nor Dr. Ouaou
18. Based on our record, it appears that unlike Drs. Gamache
and Machlus, Drs. Maher and Ouaou did not view the surveillance
videos in forming their opinions.
- 30 -
obtained that information from Mullens either. Accordingly, their
opinions left the postconviction court in no better position than the
trial court, that is, it too had to “speculate as to [Mullens’s]
condition and mental state when he murdered Uddin and Hayworth
and attempted to murder Barton.” Sentencing Order at 10; see
Butler v. State, 100 So. 3d 638, 666 (Fla. 2012) (“Dr. Caddy did not
connect [mental-health] deficiencies to the crime itself or explain
how they would have affected Butler’s actions at the time of the
murder.” (citing Rutherford v. State, 727 So. 2d 216, 224 (Fla.
1998))).
In the end, the expert opinion on which the postconviction
court relied was contradicted by the record and uncorroborated.
That evidence was insufficient to meet Strickland’s prejudice prong.
That is, we cannot say, as a matter of law, that there is a
reasonable probability that the balance of aggravating and
mitigating circumstances would have been different had this
uncorroborated and contradicted opinion evidence been presented
at the penalty phase. 19
19. We further note that in conducting an abbreviated
prejudice analysis, the postconviction court did not consider the
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Mullens’s arguments to the contrary lack merit. First, noting
the judge who ordered a new penalty phase was the same one who
had imposed the death penalty, Mullens asks us to simply accept
the postconviction court’s statement that he personally would have
imposed a life sentence had he heard the mitigating evidence
presented at the postconviction hearing. As properly noted by the
State, Mullens is wrong to suggest that this assertion is dispositive
of the prejudice analysis. See Strickland, 466 U.S. at 695 (“The
assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision. It should not
depend on the idiosyncracies [sic] of the particular decisionmaker,
such as unusual propensities toward harshness or leniency.
Although these factors may actually have entered into counsel’s
selection of strategies and, to that limited extent, may thus affect
the performance inquiry, they are irrelevant to the prejudice
nature of the aggravating circumstances or the key evidence—
including the surveillance videos—on which the trial court relied in
imposing the death sentences. We also note that the postconviction
court did not acknowledge the extensive mitigation evidence that
was presented at the penalty phase, including the compelling
testimony by Mullens’s now-deceased mother.
- 32 -
inquiry.”); Stephens v. State, 748 So. 2d 1028, 1031-32 (Fla. 1999)
(noting that prejudice is legal conclusion which is accorded no
deference); Sochor, 883 So. 2d at 781 (“[O]ur job is to review
independently the circuit court’s legal conclusion—that is, whether
Sochor has carried his burden of demonstrating a reasonable
probability that the result of the penalty phase would have been
different had counsel not been deficient.” (emphasis added)).
Accordingly, we decline Mullens’s invitation to abandon the
prejudice analysis mandated by our case law and that of the
Supreme Court. See Strickland, 466 U.S. at 695; Stephens, 748 So.
2d at 1031-32; Sochor, 883 So. 2d at 781.
Second, Mullens asserts that the “new mitigating evidence
fundamentally changes the balance of mitigating and aggravating
evidence.” According to Mullens, this conclusion flows from our
case law as well as that of the Supreme Court. We have considered
the cases on which Mullens relies but find them to be
distinguishable. Of particular significance, the cited cases involved
postconviction evidence which bore no relation to the mitigation
presented at the trials. Such was not the case here.
- 33 -
In sum, because Mullens failed to demonstrate deficient
performance or prejudice, the postconviction court erred in granting
a new penalty phase. We now turn to Mullens’s cross-appeal.
III. CROSS-APPEAL
In his cross-appeal, Mullens challenges the denial of three
claims. We address each below.
A. Ineffectiveness in Advice to Plead Guilty and Waive a
Penalty-Phase Jury
Mullens argues that the postconviction court erred in denying
his claim that counsel was ineffective for advising him to plead
guilty and waive a penalty-phase jury. We reject this argument.
(1) Guilty Plea
Mullens primarily contends that counsel failed to discover jail
documents showing that he was on an antipsychotic medication in
the roughly 18 months leading up to his guilty pleas. In his view,
this failure was objectively unreasonable. However, contrary to
Mullen’s argument, there is competent substantial evidence
supporting the court’s denial of this claim. Brown, 304 So. 3d at
257 (noting appellate court’s deference to factual findings supported
by competent substantial evidence). Specifically, the record
- 34 -
demonstrates that defense counsel was well aware of the
medication Mullens was taking and its effect on him during the
relevant time period—regardless of the jail’s documentation.
Relatedly, Mullens relies on Dr. Maher’s opinion on the
antipsychotic medication and its effect on Mullens. However,
Mullens’s reliance on that opinion is misplaced. Specifically,
Mullens overlooks or discounts evidence supporting the court’s
implicit finding that the medication did not undermine his ability to
enter voluntary guilty pleas. Brown, 304 So. 3d at 257. As noted
above, there was evidence that the medication improved Mullens’s
ability to think, communicate, and obey jail staff. And, according to
jail staff, Mullens appeared lucid while on the medication. What is
more, Mullens was actively involved in the plea colloquy during
which he acknowledged the positive effects of the medication.
Mullens also suggests that counsel ignored the turmoil he was
experiencing in the days leading up to his guilty pleas—turmoil
stemming from the recent passing of his sister. The postconviction
court found that any such turmoil did not interfere with his ability
to enter voluntary pleas. Again, Mullens overlooks or discounts
evidence supporting that finding—including the length of time from
- 35 -
his sister’s passing to the change-of-plea hearing and his
involvement and answers during the plea colloquy.
Finally, Mullens faults counsel for forging ahead and advising
him to plead guilty despite residual concerns about his competency.
At the evidentiary hearing, trial counsel acknowledged disagreement
with the trial court’s competency ruling. However, trial counsel did
not identify any additional grounds for incompetency arising
subsequent to the trial court’s ruling on that issue. 20 Thus, the
record simply does not support this aspect of Mullens’s claim.
Accordingly, because the court’s legal analysis was correct and
competent substantial evidence supports the court’s findings,
Mullens’s plea-related argument lacks merit. 21
20. To the extent Mullens suggests that jail records from 2013
would have led to a different ruling on the issue of competency,
Mullens is mistaken. The trial court made its ruling on that issue
in 2011, well prior to the circumstances later documented in the
2013 jail records.
21. Mullens has also failed to demonstrate prejudice.
See Sanchez-Torres v. State, 322 So. 3d 15, 20 (Fla. 2020)
(“[P]rejudice . . . in the plea context . . . means that ‘a defendant
must demonstrate “a reasonable probability that, but for counsel’s
errors, the defendant would not have pleaded guilty and would have
insisted on going to trial.” ’ ” (quoting Long v. State, 183 So. 3d 342,
345 (Fla. 2016))). In Grosvenor v. State, 874 So. 2d 1176, 1181-82
(Fla. 2004), we identified several factors bearing on the issue of
- 36 -
(2) Jury Waiver
To establish deficient performance as to this component of his
claim, Mullens relies on three grounds. But none supports
reversal.
First, he argues that counsel’s mitigation investigation was
deficient—relying on the same conduct or omissions discussed in
the State’s appeal. However, we have rejected Mullens’s contention
that counsel was deficient in this regard. Accordingly, we have
already rejected the core premise upon which this argument rests.
Second, Mullens asserts that counsel severely understated the
risks of waiving a penalty-phase jury. Quite simply, he points to no
portion of the record to support this argument. And we have found
none. Accordingly, this aspect of Mullens’s claim lacks any record
support. See Jackson v. State, 47 Fla. L. Weekly S167, S169 (Fla.
June 30, 2022).
Third, he argues that trial counsel was deficient in various
respects in light of Hurst v. Florida, 577 U.S. 92 (2016), a decision
whether a defendant would have rejected a plea and instead
insisted on going to trial. Having carefully reviewed the record, we
find that those factors support a finding of no prejudice here.
- 37 -
issued more than two years after Mullens’s penalty phase. In
advancing this argument, Mullens essentially asks us to find
counsel deficient for failing to anticipate that decision. However,
consistent with Strickland, we have repeatedly held that counsel is
not deficient for failing to anticipate changes in the law. See Smith
v. State, 310 So. 3d 366, 371 (Fla. 2020); Hall v. State, 246 So. 3d
210, 216 (Fla. 2018); Lynch v. State, 254 So. 3d 312, 323 (Fla.
2018).
B. Intellectual-Disability Claim
Mullens next argues that the postconviction court erred in
denying his intellectual-disability claim. The postconviction court
denied this claim, noting that Mullens would not be prohibited from
later filing a motion pursuant to rule 3.203 of the Florida Rules of
Criminal Procedure. We summarily affirm that ruling. We add only
that, under rule 3.203, Mullens will be required to establish good
cause to excuse his failure to meet the rule’s timing requirement.
We express no view on whether the record, as it now stands, would
support a finding of good cause.
- 38 -
C. Cumulative-Error Claim
As the final issue raised on cross-appeal, Mullens argues that
the accumulation of his trial attorneys’ errors at the guilt and
penalty phases deprived him of a fundamentally fair proceeding.
However, since Mullens failed to establish deficient performance in
any respect, there is no prejudice to consider cumulatively.
See Sheppard, 338 So. 3d at 829 (no prejudice to accumulate where
there is no deficient performance).
IV. CONCLUSION
For the reasons given above, we reverse the granting of a new
penalty phase but affirm in all other respects.
It is so ordered.
MUÑIZ, C.J., and CANADY, LAWSON, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion, in which POLSTON, J.,
concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
The postconviction court’s findings and sound reasoning
notwithstanding, the majority concludes that Mullens failed to meet
- 39 -
his burden of proving ineffective assistance of counsel. I
respectfully dissent.
Notably, during the penalty phase, trial counsel presented the
testimony of only one mental health expert, Dr. Machlus—an expert
who had no prior experience with death penalty cases. The
majority suggests that neither the reliance on a mental health
expert with no prior experience in death penalty cases, nor the
reliance on the testimony of a single mental health expert would
constitute deficient performance. However, in this case, both of
these circumstances are present, and they are accompanied by the
extensive factual findings of the postconviction court.
Relying on factual findings summarized in the postconviction
order, which even the majority largely credits as “accur[ate]” and
“expansive,” see majority op. at 22-23, the postconviction court
concluded that Dr. Machlus “ignored the assessments and
suggestions of the mitigation specialist,” disagreed with counsel’s
own assessment of Mullens, and failed to recognize multiple “red
flags” indicating that further diagnostic testing was necessary. In
addition, counsel failed to investigate and present significant
mitigation evidence during the penalty phase. For these reasons, I
- 40 -
cannot agree with the majority’s conclusion that counsel’s
representation of Mullens was objectively reasonable.
This Court must defer to the circuit court’s factual findings
that are supported by competent, substantial evidence. See
Simmons v. State, 105 So. 3d 475, 503 (Fla. 2012) (“Both prongs of
the Strickland [v. Washington, 466 U.S. 668 (1984)] test present
mixed questions of law and fact; thus, in reviewing a trial court’s
ruling after an evidentiary hearing on an ineffective assistance of
counsel claim, we employ a mixed standard of review, deferring to
the postconviction court’s factual findings that are supported by
competent, substantial evidence, but reviewing the postconviction
court’s application of law to the facts de novo.”). In this case, there
is competent, substantial evidence to support the postconviction
court’s findings.
Several members of the defense team testified that they were
“frustrated” and “confused” by Dr. Machlus’s handling of Mullens’
case. Tiffany Cunningham, a licensed clinical social worker and the
defense’s mitigation specialist, testified that she spoke to Dr.
Machlus multiple times about the need to further assess Mullens’
- 41 -
neurological issues, but “Dr. Machlus never seemed to hear her.”
The postconviction order explained:
Ms. Cunningham continually pointed to evidence of
numerous head traumas, indicators of PTSD, and
indicators of fetal alcohol disorder. Further, she
continually indicated possible brain damage or at least
the necessity of neuropsychological testing, and noted
indicators of intellectual disability. This information was
either not shared with Dr. Machlus or Dr. Machlus
disregarded it despite apparent signs that other medical
experts easily picked up on and to which counsel testified
they were familiar with.
Frustrated that Dr. Machlus “was not understanding Mr. Mullens’
case well,” Cunningham urged counsel to hire a different expert or
obtain a second opinion. While counsel did contact a
neuropsychologist—who “shared his suspicion of a frontal lobe
dysfunction”—counsel did not request that he administer additional
neurological testing or present his testimony during the penalty
phase.
Perhaps more disconcerting is trial counsel’s presentation of
Dr. Machlus’s testimony that Mullens did not suffer from PTSD.
Cunningham concluded that as a result of physical and sexual
abuse that occurred during Mullens’ childhood and during his time
in prison, Mullens suffered from PTSD. In addition to discussions
- 42 -
with counsel, Cunningham submitted multiple reports advising
counsel of her observations. Counsel agreed with Cunningham’s
assessment based on counsel’s own observation that Mullens
exhibited “a lot of PTSD symptoms”—symptoms corroborated by
Mullens’ roommate and father during interviews with counsel. 22
But, inexplicably, counsel did not request additional PTSD testing,
list PTSD as a mitigating factor, or present Cunningham’s findings
during the penalty phase. Instead, counsel presented Dr.
Machlus’s testimony that Mullens did not have PTSD. Counsel
concedes this was not a part of the defense’s strategy.
Trial counsel also repeatedly disregarded Cunningham’s
concerns that Mullens suffered from brain damage based on
reported head injuries and ignored her recommendation that
Mullens undergo further neurological testing. In a memorandum to
counsel, Cunningham conveyed Mullens’ reports of being “knocked
in the head hundreds of times by his older brother,” “clotheslined at
age nine and slamming the back of his head on concrete,” and
22. Mullens’ symptoms included nightmares, “flashbacks of
sexual and physical abuse suffered as a kid, an easy startle
response, and hypervigilance.”
- 43 -
“pistol whipped by a police officer.” He also reported sustaining a
head injury at age eighteen upon crashing his mother’s car into a
house. In two subsequent reports, Cunningham repeated her
concerns that Mullens suffered from neurological issues and
recommended further testing by a neuropsychologist. Counsel
admitted knowing about Mullens’ head injuries and testified this
would typically prompt her “to have a neuropsychological workup
conducted.” However, counsel could not explain why she failed to
do so here—though she admitted “she was not aware that Dr.
Machlus was not a neuropsychologist.”
Trial counsel also failed to investigate the possibility that
Mullens suffered from fetal alcohol spectrum disorder (FASD).
Based on conversations with Mullens’ mother, father, and older
siblings, counsel knew that Mullens’ mother drank alcohol while
she was pregnant with Mullens. Counsel should have fully explored
this potentially mitigating evidence by further investigating whether
Mullens suffered from FASD and what effect it had on Mullens.
Moreover, counsel failed to fully explore whether Mullens was
intellectually disabled. The postconviction court found “[t]here was
simply no presentation as to Mr. Mullens’ adaptive deficits during
- 44 -
the penalty phase, let alone whether they occurred prior to the age
of 18. Additionally, the sentencer was not made aware of the
potential implications in how Dr. Machlus administered and scored
Mr. Mullens’ WAIS IQ score.” 23 The court noted that testimony from
a neuropsychologist regarding Mullens’ intellectual disability “would
have been significant to the sentencer’s consideration in imposing
life or death.” 24
Not surprisingly, the postconviction court also found that
“[t]he communication amongst the attorneys, the mitigation
specialist, and Dr. Machlus was poor to the detriment of
Mr. Mullens’ penalty phase.” This poor communication was directly
23. Dr. Machlus scored Mullens’ IQ on the WAIS-IV test at 83,
but Dr. Machlus testified that he administered the IQ test over
several days, which he conceded was “not the way that it is
normally done.” Indeed, breaking up IQ testing is contrary to the
WAIS-IV manual and may result in an invalid, artificially inflated IQ
score.
24. The postconviction court also determined that a
neuropsychologist’s testimony would have been significant to the
court’s consideration of sexual abuse as a mitigating factor,
explaining, “[h]ad counsel consulted . . . a medical doctor and
neuropsychologist, it is likely the sentencer would have found this
[sexual abuse] mitigation factor to have existed.”
- 45 -
attributable to the inadequate investigation and presentation of
mitigation during Mullens’ penalty phase.
Given the many significant instances of deficient performance
in this case, I agree with the postconviction court’s conclusion that
Mullens was prejudiced to the extent that a new penalty phase is
warranted: “Had a more cohesive presentation of Mr. Mullens’
mitigation evidence been presented, . . . a reasonable probability
exists that the sentencer would have found that the balance of the
aggravating and mitigating factors did not warrant death.”
For these reasons, I dissent.
POLSTON, J., concurs.
An Appeal from the Circuit Court in and for Pinellas County,
Philip J. Federico, Judge - Case No. 522008CF018029000APC
Ashley Moody, Attorney General, Tallahassee, Florida, and Marilyn
Muir Beccue, Senior Assistant Attorney General, Tampa, Florida,
for Appellant/Cross-Appellee
Eric Pinkard, Capital Collateral Regional Counsel, Julie A. Morley
and James L. Driscoll, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida; and Stephen K.
Wirth, John P. Elwood, Andrew T. Tutt, and Samuel F. Callahan of
Arnold & Porter Kaye Scholer LLP, Washington, District of
Columbia,
for Appellee/Cross-Appellant
- 46 -