Darryl Brian Barwick v. Secretary, Florida Department of COrrections

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11711
________________________
D.C. Docket No. 5:12-cv-00159-RH
DARRYL BRIAN BARWICK,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 21, 2015)
Before WILSON, MARTIN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Death-row inmate Darryl Brian Barwick appeals the denial of his petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District
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Court for the Northern District of Florida. For the following reasons, the district
court’s order denying Barwick’s petition for a writ of habeas corpus is affirmed.
I.
On the morning of March 31, 1986, Rebecca Wendt was sunbathing at her
Panama City apartment-complex pool until she returned to her apartment. Around
that time, another apartment-complex resident, Suzanna Capers, who also was
sunbathing by the pool, observed a man walking around the complex. Capers saw
the man she subsequently identified as Darryl Barwick walk towards Wendt’s
apartment and later from the apartment and into the woods.
That evening, Rebecca Wendt’s sister, who was also her roommate, returned
home to find Rebecca’s body wrapped in a comforter. Investigators called to the
scene found bloody footprints and fingerprints throughout the apartment.
Rebecca’s bathing suit had been displaced, and an autopsy revealed thirty-seven
stab wounds to her upper body and several defensive wounds on her hands. The
medical examiner reported that death would have occurred within three to ten
minutes of the first stab wound. No evidence of sexual contact with the victim was
found, but criminal laboratory tests revealed a semen stain on the comforter
wrapped around the victim. Further testing indicated that the stain could have been
left by two percent of the population and that Barwick fell within that two percent.
[2]
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When initially questioned, Barwick denied involvement in the murder. But
after he was arrested on April 15, 1986, Barwick made a full confession. Barwick
told investigators that after he had observed Rebecca sunbathing, he went home,
parked his car, got a knife, walked back to Rebecca’s apartment complex, walked
past her three times, and then followed her into her apartment. Barwick claimed
that when he entered Wendt’s apartment, he had only intended to steal something,
but when Rebecca resisted, he lost control and stabbed her, and continued to stab
her repeatedly as they struggled and fell to the floor.
Barwick was then indicted on four counts: (1) first-degree murder; (2) armed
burglary; (3) attempted sexual battery; and (4) armed robbery. He was tried by a
jury and convicted on all counts. By a 9-3 vote, the jury recommended that
Barwick be put to death, and the judge subsequently sentenced Barwick to death.1
On appeal, however, the Florida Supreme Court reversed Barwick’s convictions
and sentences and remanded for a new trial. 2
1
The trial court sentenced Barwick to two life terms and one thirty-year term on the
noncapital offenses.
2
Barwick v. State, 547 So. 2d 612, 612 (Fla. 1989) (per curiam) (“Barwick I”) (holding
that Barwick, who is white, still had standing to object to peremptory challenges directed to
prospective black jurors on the ground that they were excluded solely because of their race).
[3]
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On the third day of his second trial, a mistrial was declared, 3 and a new trial
commenced on July 6, 1992. Barwick was again convicted on all counts. This
time the jury unanimously recommended Barwick be put to death, and the judge so
sentenced him. The trial judge found six aggravators proven beyond a reasonable
doubt: (1) previous convictions of violent felonies of sexual battery with force
likely to cause death or great bodily harm and burglary of a dwelling with an
assault; (2) the murder was committed during an attempted sexual battery; (3) the
murder was committed to avoid arrest; (4) the murder was committed for
pecuniary gain; (5) the murder was especially heinous, atrocious, or cruel; and (6)
the murder was committed in a cold, calculated, and premeditated manner without
any pretense of moral justification. 4 The trial court found no statutory mitigation,
and despite recognizing that Barwick suffered abuse as a child and had some
mental deficiencies, it wrote in its sentencing order that there were no non-
statutory mitigating factors, either. The Florida Supreme Court affirmed
Barwick’s convictions and death sentence. Barwick v. State, 660 So. 2d 685, 697
(Fla. 1995) (per curiam) (“Barwick II”). The United States Supreme Court denied
3
The trial judge promptly declared a mistrial after a prosecution witness testified that
Barwick had failed a polygraph.
4
The Florida Supreme Court struck the last aggravator on direct appeal, concluding that
the evidence suggested that Barwick had planned to rape, rob, and burglarize, but not murder the
victim. Nevertheless, it found that five aggravating factors remained against minimal mitigating
evidence, so the death sentence was not unreasonable. Barwick v. State, 660 So. 2d 685, 696-97
(Fla. 1995) (per curiam).
[4]
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certiorari on January 22, 1996. Barwick v. Florida, 516 U.S. 1097 (1996)
(“Barwick III”).
On March 17, 1997, Barwick filed an initial motion for post-conviction
relief in the state circuit court, and he amended the motion on August 26, 2002,
raising twenty-one claims in total. On December 4, 2003, the state circuit court
granted an evidentiary hearing on four of the claims, reserved ruling on one, and
summarily denied the remainder. In a second amended motion for postconviction
relief, Barwick realleged the same twenty-one claims and added two new claims.
The state circuit court issued an order denying Barwick’s motion on August 28,
2007. Barwick filed an appeal with the Florida Supreme Court. While that appeal
was pending, he also filed a petition for a writ of habeas corpus with the Florida
Supreme Court. On June 30, 2011, the Florida Supreme Court affirmed Barwick’s
conviction and death sentence and also denied his motion for a writ of habeas
corpus. Barwick v. State, 88 So. 3d 85 (Fla. 2011) (per curiam) (“Barwick IV”).
On May 25, 2012, Barwick filed this federal habeas petition, raising seven
issues. The district court denied all of his claims but granted a certificate of
appealability (“COA”) as to one issue, and a member of this Court expanded the
COA to include four other claims, for a total of five claims: (1) whether Barwick’s
trial counsel rendered ineffective assistance related to mitigation evidence during
the penalty phase; (2) whether the district court erred in denying Barwick’s federal
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constitutional ineffective-assistance-of-trial-counsel (“IATC”) claim with respect
to the alleged failure of counsel to effectively challenge the guilt-phase testimony
of state witness Suzanna Capers, which the jury was instructed to consider at the
penalty phase; (3) whether the district court erred in denying Barwick’s federal
constitutional claim with respect to alleged violations of Giglio v. United States,
405 U.S. 150, 92 S. Ct. 763 (1972), by allegedly permitting Capers to testify
falsely and by emphasizing Capers’s allegedly incorrect statements to the jury; (4)
whether the district court erred in denying Barwick’s federal constitutional
challenge to the trial court’s rejection of Barwick’s childhood abuse as a mitigating
circumstance; and (5) whether the district court erred in denying Barwick’s federal
constitutional challenge to his execution as a “brain damaged, mentally impaired
individual.”
II.
When reviewing the denial of a habeas petition, the Court reviews de novo
questions of law and mixed questions of law and fact. LeCroy v. Sec’y, Fla. Dep’t
Corr., 421 F. 3d 1237, 1259 (11th Cir. 2005). It reviews findings of fact for clear
error. Id. Relief is warranted when the state court’s resolution of a claim “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or if the ruling
“was based on an unreasonable determination of the facts in light of the evidence
[6]
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presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). We presume
a state court’s factual determinations to be correct, and the applicant bears the
burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
III.
A. Ineffective Assistance
A person challenging a conviction based on ineffectiveness of counsel must
show both that his counsel provided deficient assistance and that prejudice
resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). Deficient assistance means “counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064. But a “wide
range” of performance meets the standard of “reasonableness,” and we apply a
“strong presumption” that counsel’s representation fell within that range. Id. at
689, 104 S. Ct. at 2065. Only when “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment” is
counsel’s assistance deemed to be constitutionally “deficient.” Id. at 687, 104 S.
Ct. at 2064.
Prejudice occurs when the challenger has shown “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
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undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. So even
errors that have “some conceivable effect on the outcome of the proceeding” are
not enough to show prejudice. Id. at 693, 104 S. Ct. at 2067. Prejudice results
only when counsel’s errors were “so serious” that they deprived the defendant of a
“fair trial, a trial whose result is reliable.” Id. at 687, 104 S. Ct. at 2064.
When an IATC claim is based upon a failure to present mitigating evidence,
we must consider “whether counsel reasonably investigated possible mitigating
factors and made a reasonable effort to present mitigating evidence to the
sentencing court.” Henyard v. McDonough, 459 F. 3d 1217, 1242 (11th Cir. 2006)
(per curiam). When mental health is at issue, counsel does not offer ineffective
assistance when it later becomes apparent that an expert who would have testified
more favorably than the expert who was actually called may have existed. See
Ward v. Hall, 592 F.3d 1144, 1173 (11th Cir. 2010) (“As we have held many times
before, ‘the mere fact a defendant can find, years after the fact, a mental health
expert who will testify favorably for him does not demonstrate that trial counsel
was ineffective for failing to produce that expert at trial.’” (quoting Davis v.
Singletary, 119 F.3d 1471, 1475 (11th Cir.1997))). When evaluating the claim, the
court must “consider ‘the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas proceeding’—and
‘reweig[h] it against the evidence in aggravation.’” Porter v. McCollum, 558 U.S.
[8]
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30, 41, 130 S. Ct. 447, 453-54 (2009) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 397-98, 120 S. Ct. 1495, 1515 (2000)).
In short, under Strickland, “[e]ven under de novo review, the standard for
judging counsel’s representation is a most deferential one.” Harrington v. Richter,
562 U.S. 86, 105, 131 S. Ct. 770, 788 (2011). Moreover, the Supreme Court has
emphasized that the “Strickland standard must be applied with scrupulous care, lest
‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve.” Id. (quoting Strickland, 466 U.S. at 690, 104 S.
Ct. at 2066).
And in a federal habeas proceeding, we must also apply deference to a state
court’s rejection of a Strickland claim. See id. Title 28, United States Code,
Section 2254(d), amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, § 104, 110 Stat. 1214 (1996), sets forth
the statutory authority of federal courts to issue habeas corpus relief for persons in
state custody:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
[9]
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Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
In applying this standard, the Supreme Court has explained that “even a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Harrington, 562 U.S. at 102, 131 S. Ct. at 786. That is, when
evaluating a petitioner’s IATC habeas claim,
[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that
the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim
on direct review of a criminal conviction in a United
States district court.
Id. at 101, 131 S. Ct. at 785.
In short, “an unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, 529 U.S. at 410, 120 S. Ct. at
1522. A state court’s determination that a claim lacks merit is reasonable so long
as “fairminded jurists could disagree” about whether the state court’s
determination was correct. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct.
2140, 2149 (2004). And “[t]he more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations.” Id. Because “[t]he
[10]
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Strickland standard is a general one . . . the range of reasonable applications is
substantial.” Harrington, 562 U.S. at 105, 131 S. Ct. at 788. In sum, “a habeas
court must determine what arguments . . . supported . . . the state court’s decision .
. . [and] whether it is possible fairminded jurists could disagree [about whether]
those arguments . . . are inconsistent with the holding in a prior decision of [the
Supreme] Court.” Id. at 102, 131 S. Ct. at 786.
1. The Mitigation Claim
Barwick contends that he was denied effective representation at the penalty
phase because counsel allegedly failed to adequately present mitigating evidence.
Counsel presented seven mental-health experts and seven lay witnesses to detail
Barwick’s tragic home life, including years of sexual, physical, and mental abuse,
as well as to detail Barwick’s mental deficiencies, learning disabilities, and
psychological problems. Nevertheless, Barwick argues that trial counsel’s
performance was deficient principally for two reasons: (1) counsel’s “kitchen sink
approach”—in which counsel presented several experts he knew would not be
helpful to Barwick’s case in an effort to make the defense appear more trustworthy
and forthright to the jury—undermined the proper functioning of the adversarial
process by presenting harmful testimony that reduced the collective reliability of
the testimony; and (2) counsel relied solely on the investigation conducted by the
attorney who represented Barwick in his first trial and failed to uncover additional
[11]
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mitigating evidence that another expert proffered during the post-conviction
proceeding. The Florida Supreme Court rejected both of these arguments because
Barwick failed to show either deficient performance or prejudice under Strickland.
We affirm the district court’s denial of Barwick’s penalty-phase IATC claim based
on his failure to show prejudice without deciding if trial counsel’s conduct was
deficient. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“[T]here is no
reason for a court deciding an ineffective assistance claim to . . . address both
components of the inquiry if the defendant makes an insufficient showing on
one.”). On this record, we cannot say that the Florida Supreme Court engaged in
an unreasonable application of federal law.
a.
To explain the basis for our decision, we first review the evidence with
respect to both of Barwick’s arguments. We begin by summarizing the testimony
of the three experts in particular who Barwick asserts counsel should not have
presented: Drs. Annis, McClaren, and Warriner.
Dr. Lawrence Annis, a clinical psychologist, testified that he examined
Barwick twice in 1986, pursuant to court order. Dr. Annis described various
psychological tests that he administered to Barwick, which revealed that Barwick
exhibited overall normal intelligence but showed better motor skills than verbal
skills. Dr. Annis further testified that although Barwick did not seem to be bipolar
[12]
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or schizophrenic, he did appear to be “seeing the world differently from the way
normal people would see it,” and he was more sad and anxious than the typical
inmate Dr. Annis examined. Additionally, Dr. Annis testified that Barwick
exhibited a lot of resentment and anger, which might have resulted from physical
abuse he endured as a child at the hands of his father, and that Barwick “showed
many of the signs” of a “mentally disordered sex offender.” 5 Despite these
findings, Dr. Annis testified that, in his opinion, Barwick was not insane, nor did
he suffer from any mental disease or defect but that he did meet the criteria for an
antisocial personality diagnosis, although Dr. Annis did not officially diagnose
Barwick with this condition.
Dr. Harry McClaren, a psychologist specializing in forensic psychology,
also testified that he examined Barwick pursuant to a court order in 1986. Dr.
McClaren administered several psychological tests on Barwick, one of which
revealed that Barwick’s overall intelligence was in the normal range but that his
verbal intelligence was below average. Dr. McClaren testified that Barwick
exhibited “a degree of brain dysfunction” and that Barwick “had difficulties in the
sexual area . . . [which] were related to what happened in this homicide.”
5
Dr. Annis testified that “mentally disordered sex offender” is not a medical or
psychological term but a legal term that was adopted by the Florida Legislature (and other
states), to determine whether to enroll criminal defendants in sex-offender treatment programs.
It appears that although Barwick might have qualified for treatment, the fact that he did not seem
interested in therapy impacted Dr. Annis’s decision not to recommend him for the program.
[13]
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Furthermore, as part of his examination and assessment, Dr. McClaren testified
that he spoke with several members of Barwick’s family, including his mother, a
sister, and a brother, as well as Barwick’s girlfriend, and other people who had
interacted with Barwick; in short, Dr. McClaren testified that he did “everything
[he] could to understand [Barwick.]” These discussions and his review of other
written materials revealed that Barwick’s father had abused Barwick as a child, and
Dr. McClaren told the jury that this abuse “certainly” could have contributed to
Barwick’s sexual difficulties. Dr. McClaren stated that he did not believe that
Barwick was insane because that conclusion could be drawn only if any mental
disease or defect that Barwick had been suffering from was so severe that it
rendered him incapable of appreciating right from wrong or conforming his
conduct to the law, which Dr. McClaren did not believe to be the case. Nor did Dr.
McClaren believe that Barwick was operating under the influence of extreme
mental or emotional disturbance at the time of the offense. Finally, Dr. McClaren
testified that Barwick exhibited the criteria of a mentally disordered sex offender
and that he had diagnosed Barwick with an antisocial personality disorder.
Dr. Clell Warriner, a clinical psychologist, testified that he first evaluated
Barwick in 1980, when Barwick was just thirteen years old, at the request of an
attorney defending Barwick on juvenile charges. By that time, Dr. Warriner told
the jury, Barwick had already exposed himself to a girl, had hit another girl after
[14]
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she had called him a name, and had touched a third woman inappropriately. These
prior instances of sexual misconduct may have been inadmissible if offered by the
government. 6 Dr. Warriner further testified that he examined Barwick for a second
time three years later, in 1983, this time at the request of an attorney representing
Barwick on sexual-battery charges. Although when Dr. Warriner first evaluated
Barwick he thought that Barwick could be rehabilitated, Dr. Warriner testified that
after having evaluated Barwick a second time, he concluded that Barwick was a
psychopathic sexual deviant who was extraordinarily dangerous and incapable of
being rehabilitated. Dr. Warriner reached this same conclusion when he examined
Barwick for a third time, this time in connection with the crime at issue in this
habeas petition. Finally, Dr. Warriner speculated that there were likely other
episodes of escalating sexual violence for which Barwick was not caught.
6
Notably, however, the expert that Barwick would have preferred to have been
presented, Dr. Eisenstein, see infra at 16-19, testified at the post-conviction proceeding that
Barwick did not suffer from an antisocial personalty disorder at least in part because Barwick did
not exhibit a pattern of antisocial behavior, and such a pattern is usually necessary to make such
a diagnosis. On cross-examination, however, the government questioned Dr. Eisenstein about
the prior episodes to which Dr. Warriner testified to refute Dr. Eisenstein’s testimony that
Barwick had not exhibited a pattern of behavior sufficient to justify an antisocial-personality-
disorder diagnosis. So, while these incidents of prior sexual misconduct might have been
inadmissible if elicited by the state on direct examination, it is possible that the jury still would
have become aware of them during the proceedings.
[15]
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Relevant to Barwick’s second argument—that counsel merely relied on the
investigation conducted by Barwick’s counsel during his first trial 7 and should
have been able to find an expert to testify more favorably than the experts that he
did present—is the testimony of Dr. Hyman Eisenstein, proffered at his post-
conviction hearing. Because it is important to understanding our determination
today, we summarize Dr. Eisenstein’s testimony in some detail.
Dr. Eisenstein first stated that he had testified in dozens of criminal cases in
both state and federal court in Florida but noted that he had always testified for the
defense. 8 He explained that he evaluated Barwick in 2000 and again in 2002—
fourteen and sixteen years after the commission of the crime, during which time
Barwick had been incarcerated—and administered numerous psychological tests to
Barwick. Based on his examination, Dr. Eisenstein found that Barwick exhibited
slightly below-normal intelligence and stronger non-verbal than verbal
intelligence. He opined that the difference in these intelligence measures probably
informed Dr. McClaren’s conclusion that Barwick exhibited some brain
7
Counsel, however, did not solely rely on Barwick’s counsel’s investigation during his
first trial. Counsel appointed Dr. Walker, a psychiatrist, who had not previously evaluated
Barwick, to evaluate Barwick in advance of his third trial and presented this expert to testify
during the penalty phase.
8
In contrast, Dr. Annis, for instance, stated that he had testified numerous times for both
the state and for the defense in these types of proceedings because a “psychologist that got a
reputation of being primarily [sic] defense or prosecution witness would soon find that judges
weren’t going to be sending them court orders to do evaluations.”
[16]
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dysfunction. In addition, Dr. Eisenstein expressed his belief that Barwick suffered
from physical brain damage, particularly in the left temporal region. Overall, Dr.
Eisenstein testified that the results of these tests were consistent with the findings
of the experts who had previously testified, including Drs. Annis and McClaren.
Besides testing, Dr. Eisenstein spoke with members of Barwick’s family,
including two brothers, two sisters, and his mother. Dr. Eisenstein described the
physical abuse that Barwick and his siblings suffered at the hands of their father,
the sexually charged and abnormal nature of the Barwick household, and the
emotional abuse that the Barwick children endured as a result of name-calling by
Barwick’s father. Because of Barwick’s mental deficiencies, Dr. Eisenstein opined
that Barwick was subjected to additional emotional abuse and was more vulnerable
to the abuse that he received than his brothers.
Based on Dr. Eisenstein’s examination and review of available information,
he diagnosed Barwick with intermittent explosive disorder. According to Dr.
Eisenstein, this diagnosis made applicable to Barwick the statutory mitigator that
the defendant could not substantially conform his conduct to the requirements of
the law. Dr. Eisenstein also testified that he believed Barwick qualified for the
extreme-emotional-distress statutory mitigator because “somebody with normal
emotional and mental functioning would not commit such acts,” and “only . . . the
extreme form of the emotional or mental impairment . . . could explain . . . what
[17]
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happened.” Also, although Barwick was actually nineteen years old at the time
that he committed the crime in this case, Dr. Eisenstein testified that he believed
that Barwick was actually “functioning at an early-adolescence stage,” somewhere
between the ages of 11 and 14, at the time.
On cross-examination, Dr. Eisenstein admitted that he had not asked
Barwick several questions regarding what Barwick remembered about the events
leading up to the murder, despite earlier testimony that he had tried to collect as
much information as possible to understand why Barwick committed the murder.
Dr. Eisenstein also conceded that he had not reviewed Barwick’s trial testimony
and the confession that Barwick had given police regarding why he committed the
attack. Moreover, although the trial transcript revealed that Barwick had told his
brothers that he killed Rebecca because she had seen his face and he did not want
to go back to prison, Dr. Eisenstein did not ask Barwick’s brothers about this
conversation. During cross-examination, Dr. Eisenstein also acknowledged that he
had not reviewed a report prepared by a neurologist who had administered an
electroencephalogram (EEG) on Barwick in 1986, which showed that although
there was “some slowing” in Barwick’s brain, it was a “normal neurologic
evaluation.” Finally, although Dr. Eisenstein believed that Barwick exhibited four
of the seven criteria that inform whether an individual suffers from an antisocial
[18]
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personality disorder, and the presence of only three criteria is necessary to make
such a diagnosis, Dr. Eisenstein declined to diagnose Barwick with the disorder.
b.
Turning to the arguments that Barwick advances in this habeas petition, we
make a few observations. First, we note that both Drs. Annis and McClaren had
testified for the government at both the guilt and penalty phases in Barwick’s first
trial, and the record indicates that the state would have called at least Dr. McClaren
if Barwick’s counsel had not. Accordingly, the testimony that Barwick was not
insane because he did not suffer from a mental disease or defect sufficient to make
this diagnosis, that he knew right from wrong, and that he was not under the
influence of extreme mental or emotional disturbance, to which Barwick takes
most offense, most likely still would have been presented, and therefore would not
have been avoided even if Barwick’s counsel had not called these witnesses. 9
We also note that Drs. Annis, McClaren and Warriner testified similarly in
many respects to the other experts that counsel called, as well as to Dr. Eisenstein,
Barwick’s preferred expert. For instance, Drs. Annis’s and McClaren’s findings
regarding Barwick’s intelligence were consistent with those of Dr. Eisenstein.
Similarly, Drs. Annis, McClaren and Eisenstein, as well as several other experts,
9
Dr. Warriner, on the other hand, did not testify during Barwick’s first trial, and he was
not on the government’s witness list at Barwick’s third trial, but counsel still decided to call him,
as part of counsel’s strategy to try to earn the defense points with the jury for being forthright.
[19]
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discussed the abuse that Barwick suffered, which was extensively detailed by the
lay witnesses whom Barwick’s counsel presented, and each of these experts
testified that the abuse could have contributed to Barwick’s actions. Barwick took
special offense to Dr. Warriner’s testimony that Barwick was a psychopathic
sexual deviant and that he could not be rehabilitated, but similar testimony was
also proffered by two other experts: Dr. Walker and James Beller, a clinical
psychologist—neither of whose testimony he challenges.
Furthermore, although Barwick contends that this portion of Dr. Warriner’s
testimony was harmful and led the jury to conclude that the death penalty was the
most appropriate sentence, the same testimony arguably could have supported a
finding that Barwick was unable to conform his conduct to the law, that he suffered
from a mental disease or defect, or that he was under the influence of extreme
mental or emotional disturbance.10 Likewise, despite Barwick’s characterization of
10
Although we do not ultimately rule under Strickland’s performance prong on counsel’s
decision to present Dr. Warriner’s testimony, we do express some concern regarding counsel’s
strategy. Counsel’s decision to put Dr. Warriner on the stand may have allowed for the
admission of otherwise-inadmissible evidence, and it appeared to place another unfavorable
opinion of Barwick before the jury. Cf. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64
(1932) (noting that due process requires a criminal defendant to be provided with counsel in part
so that he will not be convicted “upon incompetent evidence, or evidence irrelevant to the issue
or otherwise inadmissible”); Smith v. Murray, 477 U.S. 527, 554-55, 106 S. Ct. 2661, 2677
(1986) (Stevens, J., dissenting) (stating that the introduction of highly prejudicial, inadmissible
evidence at a capital sentencing proceeding undermines the validity of the proceeding and
violates the Eighth Amendment); but cf. id. at 538, 106 S. Ct. at 2668 (Majority opinion)
(concluding that inadmissible evidence does not result in a miscarriage of justice sufficient to
overcome the procedural default of such a claim when the error did not preclude “the
[20]
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Dr. Eisenstein’s testimony, Dr. Eisenstein’s explicit finding that Barwick could not
conform his actions to the law could have also have led the jury to believe that
Barwick would not have been able to conform his actions to the law if he were
sentenced to prison and eventually released and that a death-penalty sentence was
appropriate. It is difficult to predict the manner in which a judge and jury will
construe mental-health issues and their impact on a defendant’s behavior;
sometimes such evidence will be viewed as mitigating, and other times it may be
construed as damaging. Cf., Suggs v. McNeil, 609 F.3d 1218, 1231 (11th Cir.
2010) (pointing out that the use of many different types of evidence at the penalty
phase of a capital case is a double-edged sword). Although it is clear from the
unanimous jury recommendation that Barwick’s counsel’s mitigation strategy
failed, we remain mindful of the Supreme Court’s warning that hindsight should
not affect our interpretation of counsel’s performance. Strickland, 466 U.S. at 689,
104 S. Ct. at 2065.
development of true facts nor resulted in the admission of false ones”). We nevertheless
recognize that the permissible range of counsel performance is wide because it is “all too
tempting . . . to second-guess counsel’s assistance after conviction or adverse sentence.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Although unsuccessful, it seems as though
counsel might have elicited Dr. Warriner’s testimony in an attempt to establish that, “[t]he
Capital Felony was committed while the Defendant was under the influence of extreme mental or
emotional disturbance,” a statutory mitigating circumstance. See State v. Barwick, No. 86-940
(Fla. 14th Cir. Ct. Aug. 4, 1992) (Sentencing Order) (“Although there was testimony that the
defendant was a psychopathic sexual deviant . . . . the expert testimony when considered as a
whole does not establish this as a significant mitigating circumstance.”).
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Finally, a review of the mitigation testimony offered by the experts called by
defense counsel reveals that it was not as inconsistent as Barwick suggests. All of
the testimony elicited tells the same basic story: Barwick suffered substantial abuse
as a child, this abuse affected his mental state, and Barwick’s impaired and
abnormal mental state contributed to the crime that he eventually committed.
Usually, habeas relief will not be provided under these circumstances. See Holsey
v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1266 (11th Cir. 2012).
But even if we were to find a Strickland violation based upon the record
before us, at this point in the proceedings, that is not enough for Barwick to
prevail. Now our role is limited to considering whether the Florida Supreme
Court’s conclusion that there was not a Strickland violation was reasonable. See
Harrington, 562 U.S. at 101, 131 S. Ct. at 785. Stated another way, our job is to
determine whether “fairminded jurists could disagree” as to whether the Florida
Supreme Court’s conclusion was correct, and we are prohibited from upsetting the
Florida Supreme Court’s ruling so long as that ruling is debatable. See
Yarborough, 541 U.S. at 664, 124 S. Ct. at 2149. In this case, it is, so, as the
district court concluded, Barwick’s habeas petition must be denied.
In its decision denying Barwick’s ineffective-assistance-of-trial-counsel
claim, the Florida Supreme Court first summarized the testimony proffered by all
seven mental-health experts and all seven lay witnesses called by Barwick’s
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counsel at the penalty phase. See Barwick IV, 88 So. 3d at 96-99. The Florida
Supreme Court also evaluated and compared that evidence to the testimony of Dr.
Eisenstein. Id. at 100. It highlighted two main differences between Dr.
Eisenstein’s testimony and that of the experts presented at trial: (1) Dr. Eisenstein,
unlike the trial experts, found the presence of two statutory mitigators (i.e., that
Barwick acted under influence of extreme mental or emotional disturbance, and
that his capacity to conform his conduct to the requirements of the law was
substantially impaired); and (2) Dr. Eisenstein disagreed with the defense experts
who in fact diagnosed Barwick with an antisocial personality disorder. Barwick
IV, 88 So. 3d at 100. 11
In rejecting Barwick’s penalty-phase IATC claim, the Florida Supreme
Court stated that it “has consistently rejected the proposition that trial counsel’s
performance is deficient simply because a defendant finds an expert, in
postconviction proceedings, that will testify more favorably for him.” Id. It also
explained that Barwick was not prejudiced by counsel’s conduct. Id. (“The fact
that some testimony proved to be unfavorable to Barwick does not undermine our
confidence in the verdict.”); see id. at 94 (when setting forth the standard to
establish a Strickland violation, stating that “[a] court considering a claim of
11
There were other differences between Dr. Eisenstein’s testimony and that of the other
experts, most notably that Barwick was functioning at an early-adolescence stage at the time of
the murder.
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ineffectiveness of counsel need not make a specific ruling on the performance
component of the test when it is clear that the prejudice component is not
satisfied”).
Evaluating this ruling under AEDPA’s deferential standard, we must affirm
the denial of Barwick’s petition for habeas corpus relief. For one thing, Barwick’s
arguments here concern mitigation, not aggravation; accordingly, the five
aggravating factors found to support the death-penalty sentence would remain,
even if counsel had not presented the testimony of Drs. Annis, McClaren and
Warriner. And even though Dr. Eisenstein testified to the presence of two
statutory mitigating circumstances and another nonstatutory mitigating
circumstance, the Supreme Court has explained that “[t]he sentencer . . . may
determine the weight to be given relevant mitigating evidence.” Eddings v.
Oklahoma, 455 U.S. 104, 114-15, 102 S. Ct. 869, 877 (1982). In weighing the
aggravating evidence against the mitigating testimony of Dr. Eisenstein, the
Florida Supreme Court identified perceived shortcomings related to Dr.
Eisenstein’s testimony, including Dr. Eisenstein’s failure to review (1) Barwick’s
confession to the police, (2) Barwick’s confession to his brothers and his father,
and (3) the police and sentencing reports pertaining to Barwick’s prior rape case.
Based on these alleged deficiencies, the Florida Supreme Court reasoned that the
government might have been able to create doubt as to the reliability of Dr.
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Eisenstein’s professional opinion, had he testified. See Barwick IV, 88 So. 3d at
100. In addition, the record shows that Dr. Eisenstein has previously testified for
the defense only. For these reasons, we cannot conclude there is a reasonable
probability that the jury would have afforded Dr. Eisenstein’s testimony much, if
any, weight—at least not sufficient to undermine our confidence in the outcome.
Based upon the events and facts of this case, the fact that the aggravating
circumstances would have still greatly outweighed any mitigating circumstances,
and a unanimous jury recommendation, we cannot say that the Florida Supreme
Court was unreasonable when it determined that its confidence in the sentence
imposed was not undermined by any alleged deficient performance by Barwick’s
counsel.
2. Failure-to-Impeach Claim
Next, Barwick contends that counsel rendered ineffective assistance at the
guilt phase of his trial when he failed to impeach state witness Suzanna Capers.
At trial, Capers had testified that when she observed Barwick, she felt suspicious,
worried and uneasy:
And I saw him a couple of times, two or three or four
times and I started getting suspicious, I never saw him
come back around until later, a little while later he was
walking in front where I was straight ahead of him and he
stood there and he just kind of started and I thought, here
I am laying out and by myself and I started getting a little
worried and he just stood there and stared at me and then
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he started pointing, he pointed at me, he pointed like this,
toward her apartment where he was standing and he did it
a few times, this [g]esture (indicating) and then I started
getting suspicious, really started feeling uneasy and then
he turned around and walked back toward her apartment
and I was relieved that he wasn’t standing there staring at
me anymore.
Shortly after the murder, though, Capers had provided the following
deposition testimony:
A. . . . [H]e did a gesture, I mean, not toward me but he
did like this. He pointed this way to his left, then he
pointed to his right, just like that.
Q. He did?
A. Yeah. It’s like he didn’t, like he couldn’t make up his
mind which way he wanted to go. And he saw that I saw
him and like got embarrassed that I saw him looking at
me. And so then he started going toward Russ Lake
Drive.
***
Mr. Harper: Let me interrupt here just to ask a question.
When he was standing there pointing one way with one
finger and the other way with the other finger, was he
doing that more or less to himself, in your opinion, or
was he looking at you and doing it while you were
watching him –
A. It was kind of like, you know how you will stand
there telling you to do something to yourself, that’s like
what he was doing.
Mr. Harper: So it looked like he was talking to himself?
A. Yeah, talking to himself, yeah.
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Mr. Harper: He wasn’t making any gestures to you or for
your benefit?
A. No. That’s not what I saw. He just looked like an
innocent person to me, I mean he just didn’t – looked like
he was just looking at a girl laying out, you know what I
mean?
And she testified at his first trial as follows:
. . . I was reading and I just so happened to look up and I
saw him standing there staring at me and I just looked up
and, like, he might have gotten embarrassed or I caught
him looking at me and he pointed like this, (Indicating),
and pointed this way in two different directions.
***
Q. Was there any kind of menacing gesture toward you?
A. No, sir – well, he just pointed like this, (Indicating).
Q. You didn’t know what that meant?
A. No, sir. I thought it was kind of odd. You know, I
thought he just stopped and looked, you know; I didn’t
think nothing of it at the time.
Based on these excerpts, Barwick argues that Capers’s testimony at his third
trial was inconsistent with her previous testimony and that his trial counsel should
have attempted to impeach her testimony. Moreover, he complains that the
prosecution relied on Capers’s more damaging statements during its closing
argument in the guilt phase of his third trial. The prosecutor stated,
[Barwick] sees the bathing suit clad young lady, 24 years
old. Obviously decent looking, nice looking. On his way
back, . . . he sees her. . . . He then plans, I’m going back
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there. He goes back, goes back to the very same spot.
He then eyes two women who are sunbathing as if to
select his victim. [¶] Both of them in bathing suits,
sunbathing. . . . [H]e could have certainly picked the
unoccupied dwellings to commit a burglary if he just
wanted to steal something. [¶] . . . Suzanne Capers or
Rebecca Wendt. . . . [W]hat did Suzanne Capers tell you.
He stared at me and I got this eerie feeling. It was
spooky, it was strange, it was creepy. That’s evidence
you can take into consideration as to how he was staring,
selecting.
Because the jury was instructed to consider evidence it heard during both the
guilt and penalty phases when deciding on its advisory sentence, Barwick contends
that the jury erroneously viewed as aggravating evidence a portrayal of him as a
“stalking, lurking predator who evaluated possible victims before deliberately
selecting one.” 12
As with his previous IATC claim, to succeed, Barwick needs to show not
only that his counsel rendered ineffective assistance under Strickland, but also that
the Florida Supreme Court’s conclusion that counsel was not ineffective was
contrary to or an unreasonable application of clearly established Federal law as
determined by the Supreme Court, or that its decision resulted from an
12
Florida’s capital sentencing statute limits the aggravating circumstances a sentencer
may consider to those enumerated in the statute. Fla. Stat. § 921.141(5). As a matter of Florida
law,“nonstatutory aggravating circumstances are not permitted in the sentencing evaluation
process.” Oyola v. State, 158 So. 3d 504, 509 (Fla. 2015) (per curiam).
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unreasonable determination of the facts in light of the evidence presented at trial.
See 28 U.S.C. § 2254(d). Barwick cannot carry this heavy burden.
The Florida Supreme Court denied Barwick’s IATC claim for failure to
impeach Capers because it found that Barwick could not show prejudice. See
Barwick IV, 88 So. 3d at 96. Specifically, the court said, “Barwick’s claim as it
relates to the penalty phase of trial also is without merit; the jury returned a
unanimous verdict recommending a death sentence, and there exist five valid
aggravating circumstances, with minimal mitigating evidence, supporting the
sentence.” Id.Thus, the lack of prejudice related to any alleged deficient performance due
to the failure of counsel to cross-examine Capers formed the basis for the Florida
Supreme Court’s ruling, and we are required to pay deference to this determination
under 28 U.S.C. § 2254(d). Capers’s testimony was at most tangentially related to
one aggravating circumstance. To the extent Capers’s testimony constituted
nonstatutory aggravation, there is no reasonable probability that its omission would
have changed the outcome of the penalty phase given the unanimous jury verdict
for death, five valid and weighty aggravating circumstances, and minimal
mitigating evidence supporting the sentence. It would have barely changed
Barwick’s sentencing profile. Under these circumstances, we cannot say that the
Florida Supreme Court unreasonably applied Strickland’s prejudice prong when it
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determined that counsel’s failure to cross-examine Capers did not prejudice
Barwick.
B. Giglio Claim based on Suzanna Capers’s Testimony
The Supreme Court has made clear that “deliberate deception of a court and
jurors by the presentation of known false evidence is incompatible with
rudimentary demands of justice.” Giglio, 405 U.S. at 153, 92 S. Ct. at 766(citation and quotation marks omitted). Thus, when the prosecution engages in
these acts, it may form a basis for either overturning a conviction or sentence. The
Florida Supreme Court accurately set forth the rules of law and standards of review
that govern the consideration of a Giglio claim as follows:
To demonstrate a Giglio violation, a defendant must
prove that (1) the prosecutor presented or failed to correct
false testimony; (2) the prosecutor knew the testimony
was false; and (3) the false evidence was material.
Taylor v. State, 62 So. 3d 1101 (Fla. 2011); Guzman v.
State, 941 So. 2d 1045, 1050 (Fla. 2006). “Once the first
two prongs are established, the false evidence is deemed
material if there is any reasonable possibility that it could
have affected the jury’s verdict.” Davis v. State, 26 So.
3d 519, 532 (Fla. 2009), cert. denied, [561] U.S. [1029],
130 S. Ct. 3509, 177 L. Ed. 2d 1097 (2010). A Giglio
claim also presents a mixed question of law and fact, and
a reviewing court will defer to the lower court’s factual
findings if they are supported by competent, substantial
evidence, but will review the court’s application of law to
facts de novo. Sochor v. State, 883 So. 2d 766, 785 (Fla.
2004).
Barwick IV, 88 So. 3d at 103.
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Barwick argues that the prosecutor violated Giglio because he knew that the
testimony he elicited from Capers and emphasized at closing at Barwick’s third
trial was allegedly false in that it differed from the testimony she gave at Barwick’s
first trial and in a deposition she gave nearer in time to the murder. Barwick
contends the testimony was material “because the jury did not hear the witness say
she had seen an innocent man walking around the complex, mumbling to himself,
but instead that she saw a suspicious man who was trying to indicate something to
Capers or frighten her in some way.” Id. at 105.
The Florida Supreme Court found that Barwick failed to prove that Capers’s
testimony was false. It stated, “Barwick does not demonstrate that the witness's
testimony as to the facts she observed has changed, only that Ms. Capers’s
interpretation of those facts differed between her 1986 and 1992 testimony.” Id.Under the deferential § 2254(d) standard, we cannot say that the Florida Supreme
Court’s finding that the statements were not false, nor could they be, because they
did not concern objective facts that were either true or not true, but rather
subjective opinions that may have evolved, 13 is “contrary to” or “an unreasonable
13
We note that the Florida circuit court granted Barwick an evidentiary hearing in order
to develop this claim. The state court then made a factual finding that Barwick had failed to
carry his burden of establishing that Capers’s testimony was false. This factual assessment is
reasonably supported by the record. And as amended by AEDPA, § 2254(e)(1) provides that “a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
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application of Federal law,” or an “unreasonable determination of the facts in light
of the evidence presented.” See 28 U.S.C. § 2254(d)(1)-(2).
C. Claim Regarding the Rejection of Childhood Abuse as a Mitigating Factor
Barwick also claims that the sentencing judge improperly failed to consider
nonstatutory mitigating evidence presented at the penalty phase related to the child
abuse that he suffered. A capital sentencer must consider and give effect to
mitigation evidence that is presented. See Eddings, 455 U.S. at 114-15, 102 S. Ct.
at 876-77. As the Supreme Court has stated,
Just as the State may not by statute preclude the
sentencer from considering any mitigating factor, neither
may the sentencer refuse to consider, as a matter of law,
any relevant mitigating evidence. . . . The sentencer, and
the Court of Criminal Appeals on review, may determine
the weight to be given relevant mitigating evidence. But
they may not give it no weight by excluding such
evidence from their consideration.
convincing evidence.” 28 U.S.C. 2254(e)(1). We cannot say that Barwick’s allegations about
the inconsistencies between Capers’s statements prove by “clear and convincing evidence” that
her testimony at his third trial was false.
Moreover, even if we disagreed and found that Capers’s testimony was false, that is
merely the first of the three Giglio prongs that Barwick must satisfy. At the evidentiary hearing,
Barwick did not call Suzanna Capers to testify but instead relied upon the testimony of Assistant
State Attorney Alton Paulk, who prosecuted Barwick. Paulk testified that while he recognized
that there were some differences in the statements made by Capers, he did not perceive any of
the statements as false but instead attributed the differences to Capers’s impressions of the events
changing over time. This testimony goes directly to the heart of the second Giglio prong: that
the prosecutor knowingly have offered false testimony or failed to correct testimony subsequently
known to be false. Again, this is a factual determination entitled to deference.
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Id. at 114-15, 102 S. Ct. at 876-77 (emphasis added; original emphasis omitted).
To support his claim, Barwick relies on a portion of the sentencing order that
states, “The court does not find in this case that the abuse received by the
defendant as a child is a mitigating circumstance.” The Florida Supreme Court
found on direct appeal, however, when the sentencing order is read in context, it is
clear that the judge did in fact consider the abuse that Barwick endured as a child,
satisfying Eddings’s requirement. See Barwick II, 660 So. 2d at 696. The
sentencing order states,
The Court is obliged to consider any other mitigating
circumstances that are relevant in determining the
fairness of a life or death sentence and the Court has
considered those factors which are set forth as follows:
1. The evidence establishes that the defendant was
abused as a child by his father and grew up in a
dysfunctional family. The evidence also established
that the defendant’s siblings were likewise abused and
they apparently grew up to be responsible persons.
Two of the siblings had the unfortunate experience of
being compelled to testify against their brother.
While there are doubtless numerous cases where the
abuse received by children influence their actions in
adult life and result in or contribute to criminal
behavior. The Court does not find in this case that the
abuse received by the defendant as a child is a
mitigating circumstance.
***
The Court has considered and weighed each of the
applicable aggravating circumstances and each of the
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statutory and nonstatutory mitigating circumstances that
are established by the evidence or on which there has
been any significant evidence produced as they relate to
the murder charge. Further the Court has considered
whether the established facts are such that in all fairness,
taking into consideration the totality of the defendant’s
life or character are sufficient to counter-balance the
aggravating circumstances. The jury in this case was
unanimous in recommending the death penalty. The
Court has carefully considered and reviewed all of the
foregoing as it relates to the murder charge and
determines that sufficient aggravating circumstances
exist to support the recommendation of the jury and that
recommendation is not counter-balanced by the
mitigating circumstances.
(emphasis added).
When analyzing Barwick’s failure to consider mitigation claim, the Florida
Supreme Court wrote that “the judge here recognized that the evidence established
that Barwick was abused as a child,” which the court recognized as “mitigating in
nature” and “an appropriate circumstance for the court to consider.” Barwick II,
660 So. 2d at 696. It also acknowledged that “the trial judge stated that he did not
consider Barwick’s history of child abuse as a mitigating factor,” but nevertheless
found that “the judge properly considered evidence of abuse in imposing the death
sentence.” Id. The Florida Supreme Court emphasized that the sentencing order
stated the trial court had “considered and weighed each of the . . . statutory and
non-statutory mitigating circumstances that are established by the evidence or on
which there ha[d] been any significant evidence produced.” Id. “This statement
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indicates that the trial judge weighed the [child abuse] factor as ultimately required
. . . [and therefore] sufficiently considered the mitigating evidence presented on
this factor.” Id. As Barwick points out, “extensive evidence was presented at
Barwick’s penalty phase regarding the abuse he endured at the hands of his father.”
In light of these circumstances, the relevant question is whether it was
objectively unreasonable to conclude, as the Florida Supreme Court did, that the
trial judge considered Barwick’s child abuse as a mitigating circumstance when it
determined his sentence. Id. Keeping in mind that “[a] state court’s application of
clearly established federal law or its determination of the facts is unreasonable only
if no ‘fairminded jurist’ could agree with the state court’s determination or
conclusion,” Holsey, 694 F.3d at 1257 (quoting Harrington, 562 U.S. at 101, 131
S. Ct. at 786), we cannot say the Florida Supreme Court’s conclusion that the trial
judge considered the abuse is objectively unreasonable when the order is read in its
entirety, as the Florida Supreme Court did.
To be sure, the isolated statement on which Barwick relies is troubling to the
extent it suggests that the trial court may not have given any consideration to the
child abuse as mitigating because Barwick’s siblings were also abused and “grew
up to be responsible persons,” or because Barwick’s child abuse did not “result in
or contribute to [his] criminal behavior.” Barwick II, 660 So. 2d at 695˗96.
Failure to give any consideration to Barwick’s child abuse for either of these
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reasons would be contrary to clearly established federal law. See, e.g., Smith v.
Texas, 543 U.S. 37, 45, 125 S. Ct. 400, 405 (2004) (rejecting the notion that there
must be a specific nexus between defendant’s troubled childhood or limited mental
capabilities and capital murder before allowing a jury to consider such evidence for
mitigation purposes); Eddings, 455 U.S. at 114˗15, 102 S. Ct. at 877 (holding a
capital sentencer may not give relevant mitigation evidence “no weight by
excluding such evidence from . . . consideration”). And the sentencing order could
have been more carefully written to remove any ambiguity about the trial court’s
weighing process. For example, the trial court could have said something along
the lines of the following: The Court does not find in this case that the abuse
received by the defendant as a child is a mitigating circumstance sufficient to
outweigh the substantial and numerous aggravating factors. But it is not
appropriate for us to rewrite a state trial court’s order or a state appellate court’s
reasoned opinion when evaluating them under § 2254(d).
The most that can be said for the sentencing court’s order is that it is open to
interpretation. That being so, even under pre-AEDPA habeas jurisprudence, we
must give deference to the Florida Supreme Court’s resolution of an ambiguity in
the state trial court’s order unless its resolution is not fairly supported by the
record. See Wainwright v. Goode, 464 U.S. 78, 83–85, 104 S. Ct. 378, 381–82
(1983). Here, the Florida Supreme Court’s factual determination that the trial
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judge did consider and weigh Barwick’s child abuse mitigating evidence is fairly
supported by the record and thus entitled to deference.
Additionally, under AEDPA, we are also obligated to give the Florida
Supreme Court’s interpretation of the sentencing order the benefit of the doubt.
See Renicio v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 1862 (2010) (“AEDPA . . .
imposes a highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be given the benefit of the doubt.” (citations
omitted) (quotation marks omitted)); see also Wood v. Allen, 558 U.S. 290, 301,
130 S. Ct. 841, 849 (2010) (“[A] state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.”). Because the Florida Supreme Court’s
conclusion that the trial judge did, in fact, consider Barwick’s child abuse as a
mitigating circumstance did not involve an unreasonable application of clearly
established federal law or an unreasonable determination of the facts, see 28
U.S.C. § 2254(d), Barwick’s petition on this claim must be denied.
Finally in this regard, we are also mindful that the Florida Supreme Court
concluded that “[a]ny error in articulating the particular mitigating circumstance
was harmless.” Barwick II, 660 So. 2d at 696 (citing Armstrong v. State, 642 So.
2d 730 (Fla. 1994) (per curiam)). We understand the court’s citation to Armstrong
to mean that any error in “the trial judge’s articulation of how he considered the
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mitigating circumstances and aggravating circumstances . . . was harmless beyond
a reasonable doubt” because the five valid and weighty aggravating circumstances
in this case strongly outweigh the nonstatutory mitigation submitted by Barwick
during his penalty phase. See Armstrong, 642 So. 2d at 739. There is nothing
objectively unreasonable about the Florida Supreme Court’s alternative harmless
error analysis based on the record in this case.
D. Claim that Executing Barwick is Unconstitutional Because He is Mentally a
Minor
Finally, Barwick argues that, while he was nineteen-and-one-half years old
at the time that he killed Rebecca Wendt, he presented expert psychological
evidence at his post-conviction proceeding that his mental functioning was
equivalent to that of an ordinary 11-to-13-year-old person, and his intellectual
functioning equivalent to that of an ordinary 12-to-14-year-old person. Thus, he
asserts that “[w]hen one considers mental capacity and level of functioning, there
is no sustainable rationale for imposing the death penalty [here] . . . and not upon
the class of individuals outlined in [Roper v.] Simmons[,543 U.S. 551, 568, 125 S.
Ct. 1183, 1194 (2005)]. See, e.g., City of Cleburne, Texas, et al. v. Cleburne
Living Center, Inc., et al., 473 U.S. 432, 439 (1985) (“The Equal Protection Clause
of the Fourteenth Amendment commands that no State shall ‘deny to any person
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within its jurisdiction the equal protection of the laws,’ which is essentially a
direction that all persons similarly situated should be treated alike.”).”
The Eighth Amendment provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” The
provision is applicable to the States through the Fourteenth Amendment. Furman
v. Georgia, 408 U.S. 238, 239, 92 S. Ct. 2726, 2727 (1972) (per curiam). The
Supreme Court has looked to “evolving standards of decency” to guide its
determination of when the imposition of a particular punishment would be “cruel
and unusual.” See Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 597-98
(1958) (plurality opinion).
In Roper v. Simmons, the Supreme Court held that the imposition of the
death penalty on those less than eighteen years old would be “cruel and unusual,”
in violation of the Constitution. 543 U.S. 551, 568, 125 S. Ct. 1183, 1194 (2005).
The Court rested its holding in part on the fact that several differences exist
between juveniles and adults. These differences include a lack of maturity, an
underdeveloped sense of responsibility, a greater susceptibility to negative
influences and outside pressures, and the fact that juveniles’ personality traits are
more transitory and less fixed. Id. at 569-70, 125 S. Ct. at 1195-96.
But even if we were to agree with Barwick that sentencing to death one who
has reached the chronological age of legal maturity but who possesses the mental
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and intellectual capabilities of a juvenile would be unconstitutional,14 we can grant
relief only if the state court’s denial of his claim was contrary to or an
unreasonable application of clearly established Federal law. Although the Florida
Supreme Court denied this claim as procedurally barred, it nevertheless evaluated
Barwick’s claim on the merits, stating,
[T]he [Florida Supreme] Court has expressly rejected the
argument that Roper extends beyond the Supreme
Court’s pronouncement that the execution of an
individual who was younger than eighteen at the time of
the murder violates the eighth amendment. England v.
State, 940 So. 2d 389, 406-07 (Fla. 2006). Moreover, the
[Florida Supreme] Court has previously denied relief on
each of the specific claims raised by Barwick. See Hill v.
State, 921 So. 2d 579, 584 (Fla. 2006) (“Hill’s third
claim is that his mental and emotional age places him in
the category of persons for whom it is unconstitutional to
impose the death penalty under [Roper]. This claim is
without merit. Roper does not apply to Hill. Hill was
twenty-three years old when he committed the crimes at
issue. Roper only prohibits the execution of those
defendants whose chronological age is below
eighteen.”). Here, Barwick was nineteen and one-half
years old when he committed the murder. Accordingly,
we deny relief upon these claims.
Barwick IV, 88 So. 3d at 106.
Setting aside Barwick’s procedural default, the district court also addressed
the Florida Supreme Court’s resolution of the merits of his claim:
14
To be clear, we do not express any opinion as to the validity (or lack thereof) of
Barwick’s contention.
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The United States Supreme Court has not extended
Roper to mental or emotional age. The Florida Supreme
Court’s rejection of Mr. Barwick’s claim thus was not
contrary to “clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). See Dombroski v. Mingo, 543
F.3d 1270, 1274 (11th Cir. 2008) (holding that a state
decision on an issue cannot be contrary to federal law
under § 2254(d)(1) if there is no Supreme Court decision
on point).
The Florida Supreme Court’s rejection of Mr. Barwick’s
claim also was not an unreasonable application of Roper.
In Roper, the United States Supreme Court Case drew a
bright line—age 18. The Court squarely held that
executing a defendant for committing a crime before age
18 is always unconstitutional, no matter how mature the
defendant. A reasonable application of Roper is that the
bright line works the other way, too—executing an
individual for committing a crime after age 18 is not, just
because of age, unconstitutional. Mental or emotional
age may be a mitigating factor, but it does not necessarily
preclude the death penalty.
Because the Florida Supreme Court’s rejection of this
claim was not contrary to or an unreasonable application
of clearly established federal law, Mr. Barwick is not
entitled to relief.
We agree with the district court’s analysis. We note with regard to whether
a state court’s application of federal law is unreasonable that this Court has
clarified that state courts are not obligated to extend legal principles set forth by
the Supreme Court because AEDPA requires only that state courts “fully, faithfully
and reasonably follow legal rules already clearly established by the Supreme
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Case: 14-11711 Date Filed: 07/21/2015 Page: 42 of 42
Court.” Hawkins v. Alabama, 318 F.3d 1302, 1307 n.3 (11th Cir. 2003).
Accordingly, we cannot say that the Florida Supreme Court’s opinion was an
unreasonable application of federal law when it considered this claim.
IV.
For the foregoing reasons, the district court’s order denying Barwick’s
petition for habeas corpus is AFFIRMED.
[42]