Marbel Mendoza v. Secretary, Florida Department of Corrections

Case: 13-14968 Date Filed: 07/31/2014 Page: 1 of 58
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14968
________________________
D.C. Docket No. 1:12-cv-21894-JLC
MARBEL MENDOZA,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 31, 2014)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
HULL, Circuit Judge:
Marbel Mendoza, a Florida inmate, filed a 28 U.S.C. § 2254 petition for a
writ of habeas corpus, raising multiple challenges to his capital conviction for first
Case: 13-14968 Date Filed: 07/31/2014 Page: 2 of 58
degree felony-murder and death sentence. The district court denied Mendoza’s
petition. This Court granted Mendoza a certificate of appealability (“COA”) as to
one issue: “Whether defendant Marbel Mendoza’s trial counsel rendered
ineffective assistance of counsel in the investigation and presentation of mitigation
evidence during the penalty phase of the 1992 trial.”
Having considered the state court record, the district court’s thorough order,
and the parties’ submissions, and with the benefit of oral argument, we affirm the
district court’s denial of Mendoza’s § 2254 petition.
I. CRIME, GUILT PHASE, AND VERDICT, 1992–1994
A. Robbery and Murder, 1992
In 1992, petitioner Mendoza asked an acquaintance, Humberto Cuellar, to
help him rob Conrado Calderon, who owned a mini-market. Humberto agreed and
recruited his brother, Lazaro Cuellar, to drive the getaway car. To plan for the
robbery, Mendoza, Humberto, and Lazaro went to Calderon’s house in Hialeah,
Florida, where they observed Calderon’s morning routine. 1
Before dawn on March 17, Mendoza and the two Cuellar brothers went to
Calderon’s home and waited on Calderon to emerge. Mendoza had a .38 caliber
revolver and Humberto carried a 9 mm automatic pistol. Around 5:40 AM,
1
We draw these facts from the Florida Supreme Court’s decision in Mendoza’s direct
appeal. See Mendoza v. State (“Mendoza I”), 700 So. 2d 670, 672–73 (Fla. 1997).
2
Case: 13-14968 Date Filed: 07/31/2014 Page: 3 of 58
Calderon appeared at his front door, at which point, Mendoza and Humberto hid
behind a hedge.
Calderon left his house and walked toward his Ford Bronco. Humberto
Cuellar and Mendoza approached Calderon from behind and held Calderon in his
driveway between the Ford Bronco and a Cadillac, also parked there. A struggle
ensued, during which Humberto hit Calderon on the head with his 9 mm pistol.
Calderon pulled out a .38 special revolver and shot Humberto in the chest.
Humberto, injured, retreated to Lazaro Cuellar’s getaway car. As Humberto ran to
the car, he heard other gun shots. Less than one minute passed before Mendoza
also arrived at Lazaro’s car. Mendoza told Humberto and Lazaro that he shot
Calderon. Calderon died.
Lazaro drove the car, with Mendoza and Humberto inside, to a nearby
hospital. Mendoza instructed Humberto to say that Humberto was shot by a person
trying to rob him. Police later arrived at the hospital and recovered Humberto’s
fully loaded 9 mm pistol from the getaway car. Officers observed hair embedded
in the slide, which was consistent with the gun having been used to hit someone in
the head. The police took Humberto to the Hialeah police station where he gave a
sworn statement. Humberto’s statement recounted how Mendoza planned the
robbery and Mendoza shot Calderon. Humberto’s trial testimony was consistent
with the statement.
3
Case: 13-14968 Date Filed: 07/31/2014 Page: 4 of 58
Police investigated the murder scene, where they found, under Calderon’s
dead body, a gun and a bank bag containing $2,089 in cash. They found additional
cash in Calderon’s pockets and wallet. Police also discovered Mendoza’s finger
and palm prints on the Cadillac parked in Calderon’s driveway.
Calderon was killed by four bullet wounds, all of which came from a .38
caliber revolver—the type of weapon Mendoza had. Three shots were fired from
point-blank range, with the last shot fired from less than six inches away. The
bullet lodged in Humberto’s spine was consistent with being fired from the gun
found beneath Calderon.
One week after the murder, officers arrested Mendoza. By that time,
Mendoza had shaved his head and moved out of his normal residence.
B. Indictment, Appointment of Counsel, and Not Guilty Plea, 1992
On March 31, 1992, a state grand jury indicted Mendoza for six offenses,
including the first-degree felony-murder of Calderon.2 The trial court appointed
two experienced private attorneys, Arnaldo Suri and Barry Wax, to represent
Mendoza.
The Cuellar brothers were also charged in the same indictment charging
Mendoza. Lazaro Cuellar pled guilty to manslaughter, conspiracy, and attempted
2
These other offenses were: (1) conspiracy to commit robbery; (2) attempt to commit
armed robbery; (3) armed burglary of a dwelling; (4) use of a firearm during the commission of a
felony; and (5) possession of a firearm by a convicted felon.
4
Case: 13-14968 Date Filed: 07/31/2014 Page: 5 of 58
armed robbery. He received a ten-year sentence. Humberto Cuellar pled guilty to
second-degree murder, conspiracy, attempted armed robbery, burglary, and use of
a firearm in the commission of a felony. He received a twenty-year sentence.
Mendoza pled not guilty and proceeded to trial.
C. Pre-Trial Mental Health Evaluations of Mendoza
Prior to trial, Mendoza’s counsel had Mendoza fully evaluated by two
mental health experts: Dr. Leonard Haber and Dr. Jethro Toomer. In the penalty
phase, Mendoza’s counsel had Dr. Toomer testify, but did not call Dr. Haber.
Although Dr. Haber did not testify, we include his report to show the completeness
of trial counsel’s pre-trial investigation. We thus review what Dr. Haber reported
and then what Dr. Toomer reported.
During August and September of 1993, Dr. Haber, a licensed psychologist,
examined Mendoza six times. Because Mendoza later argues that other mental
health professionals should not have evaluated him in English, his second
language, we note that Dr. Haber conducted his examinations in Spanish with the
assistance of a trained bilingual interpreter. In his 1993 report, however, Dr. Haber
noted “Mendoza understood English.”
Dr. Haber reviewed police and medical examiner reports pertaining to
Mendoza’s offense, the indictment, Mendoza’s post-arrest statement, and a Cuban
doctor’s summary of Mendoza’s clinical history from his childhood in Cuba.
5
Case: 13-14968 Date Filed: 07/31/2014 Page: 6 of 58
Dr. Haber’s 1993 report described Mendoza’s “extensive and mixed
substance abuse problem beginning at age 11 or 12.” In his 1993 interview with
Dr. Haber, Mendoza reported that he started using crack cocaine four or five years
earlier, and he “claimed to have used ‘acid’ for ‘almost a full year.’” Mendoza
“experimented with [Q]uaaludes and ‘black beauties’ as well.”3
As to Mendoza’s mental state, Dr. Haber’s report noted that Mendoza
“admitted to having entertained homicidal ideations” and “described having
experienced visual hallucinations . . . while under the influence of drugs.”
Mendoza experienced “auditory hallucinations since about age 7.” He told Dr.
Haber that “the devil talked to him and that it tells him, ‘you have to do something
wrong to somebody.’”
Dr. Haber concluded that: (1) Mendoza was not a candidate for involuntary
hospitalization; (2) Mendoza was a person “with a history of [a] major mental
disorder since childhood,” which was not treated after his arrival in the United
States; and (3) Mendoza “likely was acting with impaired judgment at the time of
the offense due to his intake of alcohol and other illegal substances.” Mendoza’s
drug use may have resulted from Mendoza’s desire to “self medicate in response to
3
The record here does not explain what Quaaludes and black beauties are. But we have
stated that “Quaalude” is the brand name for the drug Methaqualone, “a non-barbiturate sedative-
hypnotic that is a general depressant of the central nervous system.” Hardwick v. Crosby, 320
F.3d 1127, 1168 n.159 (11th Cir. 2003) (quotation marks omitted). “Black beauties are the street
name for a type of amphetamine drug.” Howard v. Moore, 131 F.3d 399, 421 n.20 (4th Cir.
1997) (en banc), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct.
2317 (2005).
6
Case: 13-14968 Date Filed: 07/31/2014 Page: 7 of 58
distressing symptoms of mental disorder.” Dr. Haber indicated that Mendoza’s
conditions—including his “long standing history of major mental illness and
polydrug abuse”—“qualify for consideration as possible mitigating factors in a
sentencing hearing.”4
During November and December of 1993, Dr. Toomer, a licensed
psychologist, interviewed Mendoza four times in English. Dr. Toomer’s 1994
report stated: “On each occasion, there appears to be some deterioration in the
subject’s overall mental status functioning as reflected by his increasingly
depressed state, disjointed communication, responsiveness to internal stimuli,
tearfulness and reports of auditory and visual hallucinations.”
Dr. Toomer found that there was “evidence of a major affective and
cognitive impairment, reflected in communication that [was] halting, sluggish, and
impoverished and characterized by [Mendoza] having difficulty generating
thoughts.” Mendoza’s performance on the Bender Gestalt Designs Test (“Bender
Gestalt”) indicated “schizophrenia, as well as organic impairment.” Mendoza took
the Carlson Psychological Survey, which indicated that Mendoza suffered “from
feelings of inferiority, insecurity and poor self esteem.” Dr. Toomer opined that
4
On January 27, 1994, Dr. Haber evaluated Mendoza again after Mendoza’s attorneys
requested, and the trial court ordered, a competency evaluation. Dr. Haber determined that
Mendoza was “competent to proceed to trial.” Dr. A.M. Castiello, a psychiatrist, evaluated
Mendoza on January 28 and likewise concluded that Mendoza “possess[ed] a factual as well as a
rational understanding of the proceedings against him” and was “capable of assisting counsel in
his defense and of standing trial.”
7
Case: 13-14968 Date Filed: 07/31/2014 Page: 8 of 58
“[b]rain damage” could be a cause of such feelings, as well as “a history of drug
and alcohol abuse.” In his pre-trial report, Dr. Toomer set forth Mendoza’s
performance on these tests. At trial, Dr. Toomer explained more about what the
tests measured or assessed. We discuss that testimony later on.
Before trial, Mendoza’s attorneys asked the trial court to appoint a third
mental health expert—Dr. Jules Tropp, an addictionologist. The trial court denied
the motion.
D. Guilt Phase, 1994
During the guilt phase of Mendoza’s 1994 trial, the evidence
overwhelmingly established that Mendoza planned the robbery, participated in it,
and shot and killed Calderon. Specifically, Humberto Cuellar testified that
Mendoza shot Calderon.5 The four bullets from Calderon’s body were from a .38
caliber revolver like Mendoza’s. The hospital admissions clerk testified that
Mendoza was with Humberto when he arrived with a gunshot wound on the
morning of the murder. Mendoza’s finger and palm prints were on the Cadillac
parked near Calderon’s body.
On February 8, 1994, the jury found Mendoza guilty on all counts, including
first-degree felony murder. 6
5
Lazaro Cuellar did not testify.
6
The felon-in-possession-of-a-firearm count was not submitted to the jury.
8
Case: 13-14968 Date Filed: 07/31/2014 Page: 9 of 58
II. STATE’S PENALTY PHASE EVIDENCE
The penalty phase before the jury began on March 11, 1994.
A. Armed Robbery of Robert Street
At Mendoza’s 1994 trial, the State established the aggravating circumstance
that Mendoza was previously convicted of another violent felony. See Fla. Stat.
§ 921.141(5)(b). Specifically, the State introduced Mendoza’s 1993 convictions
for robbery with a firearm, aggravated battery, burglary of a conveyance with a
firearm, and use of a firearm in the commission of a felony—all stemming from his
1992 armed robbery of Robert Street. Mendoza received a 12-year sentence for
these offenses.
The State also called Street, the victim of Mendoza’s criminal behavior. The
State used Street’s testimony to establish the circumstances surrounding
Mendoza’s previous violent felony convictions. Street testified that, on February
14, 1992 (approximately one month before the Calderon murder), he was assaulted
and robbed at around 11:30 PM as he returned to his Miami townhome. Street
exited his vehicle, turned around, and saw two men approaching him. Street
identified Mendoza as one of the two men who assaulted him that night. Mendoza
carried a gun and beat Street with it.
9
Case: 13-14968 Date Filed: 07/31/2014 Page: 10 of 58
Mendoza instructed Street to lie down, face-forward, on the ground. In a
“[v]ery agitated” tone, the assailants ordered Street to “give them [his] money.”
Mendoza repeatedly poked Street in the face with the barrel of the gun.
Mendoza and the other man took Street’s watch, wedding ring, wallet
(containing $100), car keys, and residence keys. They ransacked Street’s car, but
took nothing. They came back to Street, still lying on the ground, “and got crazy.”
The attackers punched Street in the back of the head, poked him with the gun “over
and over,” and repeatedly asked him “where [the] money was.” They refused to
believe that Street had given them all the money he had.
The men did not enter Street’s residence, but they threatened to do so. After
Street told them his wife was inside, one man said, “‘We are going to go in there
and get the money.’” Mendoza struck Street forcefully beneath the left eye “in an
effort maybe to knock [him] out.” The other man twice said, “‘Just shoot him.’”
B. Dr. Anastasio Castiello
Dr. Anastasio Castiello, a psychiatrist, also testified. Prior to trial, Dr.
Castiello interviewed Mendoza in Spanish to complete a court-ordered psychiatric
evaluation only for competency to stand trial. During the interview, Mendoza
responded to questions “rather vaguely” and Dr. Castiello “had to pinpoint him as
to details.” Dr. Castiello considered Mendoza “to be a totally unreliable
informant.”
10
Case: 13-14968 Date Filed: 07/31/2014 Page: 11 of 58
For example, Dr. Castiello discounted Mendoza’s drug abuse claims. Dr.
Castiello testified that “when any kind of situation is unpleasant, there is a
tendency to overemphasize the [drug] usage or misusage.” Mendoza talked to her
about his drug use. Mendoza told Dr. Castiello about “dreams or fantasies” he
experienced while sleeping. Dr. Castiello testified that Mendoza “appeared to be
making sort of an effort to appear that he was having all those things that nobody
else has.”
III. MENDOZA’S PENALTY PHASE EVIDENCE
One part of Mendoza’s attorneys’ mitigation strategy in the penalty phase
was to show that Mendoza was not more culpable than his co-defendants—the
Cuellar brothers—who received non-capital sentences. To this end, they called
Humberto Cuellar, who testified that the three defendants had plotted to rob
Calderon with guns, but that none of them ever intended to kill him. They did not
know that Calderon was armed until Calderon drew his gun and shot Humberto.
Trial counsel Wax had the contents of the judgments in co-defendants Humberto’s
and Lazaro’s cases read to the jury.
Trial counsel also pursued a mitigation strategy of showing that Mendoza
had mental health problems and had experienced a traumatic childhood. We
recount the extensive evidence about Mendoza’s mental health, childhood, and
substance abuse.
11
Case: 13-14968 Date Filed: 07/31/2014 Page: 12 of 58
A. Nilia Mendoza
Mendoza’s mother, Nilia Mendoza, testified at length about Mendoza’s
tumultuous and tragic childhood. Ms. Mendoza testified that her son was born in
1966 in Havana, Cuba. 7 As a newborn, Mendoza “would always get sick” and
received surgery at age one for water in the testicles. He received the same surgery
a second time and developed asthma and vomiting problems. Mendoza also
suffered “attacks,” during which he would “lose consciousness” and would have to
be taken to a psychologist for treatment.
As he grew older, Mendoza became “[v]ery restless, very dominant.”
Mendoza would get in fights with other children at school in Cuba. When
Mendoza was approximately three-years-old, his mother took him to see a
psychologist at a Cuban hospital. Mendoza received psychological treatment at
this hospital for approximately two years, from ages three to five. He was treated
at a different hospital in Cuba from ages six to twelve. These subsequent doctors
told Ms. Mendoza that her son suffered from “aggressive conduct . . . like
schizophrenia.”
In 1980, Ms. Mendoza, with her husband and her son, attempted to leave
Cuba by seeking refuge at the Peruvian embassy in Havana. Ms. Mendoza
explained, “We jumped the fence and we got into the embassy.” At that time,
7
Mendoza was his parents’ only child.
12
Case: 13-14968 Date Filed: 07/31/2014 Page: 13 of 58
“[t]here were ten thousand people inside the Peruvian embassy.” Because there
were so many people, the Mendoza family left the embassy after obtaining a
permit go to the United States. The Mendozas returned to their home in Havana.
For the next week, the police came “every once in a while to get [the family]
out [and] take [them] to the airport and then . . . let [them] go somewhere in Cuba
so that the police would hit [them] and then [they] would go back home.” Ms.
Mendoza affirmed that all three family members were beaten during this period.
Mendoza was about 14-years-old at the time.
Eventually, the police allowed the Mendozas to leave Cuba, telling them that
they could go to the United States. However, the family went to Costa Rica for a
day, and then to Peru. They stayed in Peru for two years and three months, during
which time they lived in tents in a city park. Approximately 800 other Cuban
refugees lived with the Mendozas in this tent village, with each tent housing
between 16 and 18 people. Ms. Mendoza testified that the family did not have
access to medical care. Her son suffered a nervous crisis and developed typhoid,
and Mendoza’s father lost his hearing and had a nervous breakdown.
The Mendozas filed applications for asylum in the United States, which
were not granted. Eventually, the family left Peru, traveled to Mexico, and entered
the United States by crossing the Mexican-American border. In August 1982, the
13
Case: 13-14968 Date Filed: 07/31/2014 Page: 14 of 58
Mendozas settled in Miami, where Mr. Mendoza found work in construction. Her
son was around 16-years-old at the time. 8
Ms. Mendoza testified that, when the family first arrived in Miami, they
registered their son at Miami High School. Initially, “he was doing all right, but
then he had trouble.” Mendoza dropped out of high school and took night classes.
Ms. Mendoza never arranged for her son to receive mental health treatment in the
United States because “he never wanted to.”
As to when she suspected Mendoza was using drugs, Ms. Mendoza
answered: “Well, really in the beginning, I didn’t realize because I didn’t know
much about it. But afterwards, I did.” Ms. Mendoza occasionally found marijuana
cigarette butts in her son’s bedroom, and he “was always asking for money.”
Mendoza started to steal his mother’s jewelry. On cross-examination, Ms.
Mendoza acknowledged that she never observed Mendoza using other illegal drugs
or alcohol, but stated that she “kn[e]w little about drugs.” She did once have to go
and pick Mendoza up from a bar and observed him drunk.
Mendoza obtained his general equivalency degree (“GED”) and performed
various part-time jobs. He worked at a Kentucky Fried Chicken, for a construction
company, and then for a plumber.
8
While Ms. Mendoza, at one point, said that Mendoza was 14-years-old when he arrived
in the United States, she also testified that Mendoza was born in 1966 and came to the United
States in 1982, which made him approximately 16 at that time.
14
Case: 13-14968 Date Filed: 07/31/2014 Page: 15 of 58
Ms. Mendoza testified that her son later married a woman whom he had met
in the refugee camp in Peru. They married in the United States and had two
children. Mendoza’s daughter, who was five at the time of the trial, was born with
birth defects. According to Ms. Mendoza, her son “had a nervous attack” when he
learned of his daughter’s birth defects. Mendoza’s marriage did not last. By the
time of Mendoza’s 1992 offenses, he was divorced, no longer living with his
children, and his former wife would not let him see the children.
B. Medical Records from Cuba
Trial counsel did not rely exclusively on Ms. Mendoza’s testimony to show
Mendoza’s difficult upbringing. They also obtained, via Mendoza’s relative in
Cuba, a doctor’s summary of Mendoza’s childhood medical records in Cuba,
which were consistent with Ms. Mendoza’s testimony. The records were signed
by Dr. Pedro A. Rivera Richards and contained the seal of the Cuban Ministry of
Public Health. After Ms. Mendoza’s testimony, the defense proffered these
medical records. The records were in Spanish and were read to the jury in English
through an interpreter.9 They documented Mendoza’s mental health problems and
treatment from ages 2.5 to 5 (1968 to 1971), and then from ages 10 to 13 (1976 to
1979).
9
The trial court overruled the State’s hearsay objection to the admission of the medical
records.
15
Case: 13-14968 Date Filed: 07/31/2014 Page: 16 of 58
The medical records stated that Mendoza’s “[m]ain diagnosis” was
“definitive dominant character with aggressive predominance and schizophrenic
and schizoid characteristics.” His other diagnoses were “fears, nocturnal fears
during infancy, and enuresis.” According to the records, Mendoza first received
psychiatric care when he was two-years-old. From ages two to five, Mendoza
received “specialized treatment and family counseling.” At five-years-old, he was
released from treatment.
At age ten, Mendoza went back to a pediatric psychiatrist in Cuba “because
he was not progressing in school” and “found himself isolated.” Mendoza had
many “fights and brawls” inside and outside school in Cuba. Mendoza received
“all types of psychotherapy, talks and meetings and family sessions” as well as
“special school therapy for his conduct and specialized medical treatment.” He
was evaluated “by the whole medical group,” including psychiatrists and
psychologists and subjected to various psychometric tests.
When he was 13-years-old, Mendoza reported having “visions,
hallucinations and auditive types of sensations of persons calling him.” This led
the doctors to diagnose “characteristics of schizophrenic and schizoid characters.”
C. Gloria Dardy-Porter
Mendoza’s next witness was Gloria Dardy-Porter, the medical records
custodian for the State Corrections Rehabilitation Services. Ms. Dardy-Porter
16
Case: 13-14968 Date Filed: 07/31/2014 Page: 17 of 58
authenticated Mendoza’s prison medical records, which were admitted into
evidence. These records showed that, while incarcerated prior to trial, Mendoza
received medical treatment for, inter alia: (1) chronic right leg pain resulting from
a gunshot wound he suffered in 1988; (2) mental health problems, such as hearing
voices and experiencing other hallucinations; and (3) routine ailments, like a sore
throat, cough, and constipation.
D. Dr. Jethro Toomer
After establishing Mendoza’s difficult background and serious mental health
issues, trial counsel called on Dr. Toomer, one of the psychologists who had
evaluated Mendoza. Dr. Toomer testified about Mendoza’s multiple psychological
problems and lack of treatment for them. Trial counsel obtained Dr. Toomer’s
report before trial. We now recount his trial testimony.
Dr. Toomer was imminently qualified as he: (1) had bachelor’s, master’s,
and doctoral degrees in psychology; (2) was licensed to practice psychology in
Florida; (3) had been a psychologist for 17 years; (4) was a “diplomat of the
American Board of Professional Psychologists”; (5) was published in various
medical journals and had recently published a book on psychology; and (6) had
testified as an expert in psychology numerous times since 1975. Dr. Toomer was a
17
Case: 13-14968 Date Filed: 07/31/2014 Page: 18 of 58
professor at Florida International University, where he directed the graduate mental
health program. He also had a private clinical and forensic psychology practice. 10
Dr. Toomer met with Mendoza four times at the prison. Dr. Toomer
performed his evaluations in English, not Spanish, because there was no language
barrier between Mendoza and him.
Dr. Toomer first obtained from Mendoza a “psychosocial history,” which
was “a process or series of questions” indicating “overall functioning, place of
birth, demographic data, information regarding childhood, parental relations,
sibling relationship, prior medical history, [and] prior areas of problems or
difficulty.” Dr. Toomer stated, “[i]n other words, it’s a life history of the
individual’s functioning from earlier on up to that point.” As to his childhood in
Cuba, Mendoza told Dr. Toomer “that he had received treatment and it had
something to do with his having supposed experiences with multiple personalities.”
Mendoza “also described . . . an extensive drug history that dated back to the age
of nineteen involving the use of alcohol, marijuana and some crack cocaine.”
Dr. Toomer testified that Mendoza’s “multiple personalities” diagnosis
indicated “something rather serious,” and Dr. Toomer was concerned that
Mendoza had not received any treatment in the United States. Dr. Toomer
10
Dr. Toomer testified that “forensic psychology” refers to “the interaction of psychology
and the law,” whereas “clinical psychology” focuses on “the impact of human behavior and
treatment and diagnosis of the mentally ill.”
18
Case: 13-14968 Date Filed: 07/31/2014 Page: 19 of 58
suspected that Mendoza resorted to illegal drugs as a form of “self-medication” for
his mental health problems.
Dr. Toomer testified about his psychological testing of Mendoza. He
administered the Bender Gestalt Designs, which “is a screening instrument where
the individual is asked to . . . draw on a piece of paper with a pencil . . . drawings
of symbols that he observed on a particular card.” “The discrepancies between the
drawings and what the individuals produce is indicative of functioning or lack of
functioning or deficiencies in functioning in a variety of areas . . . and organicity or
brain damage.” Mendoza’s performance on the Bender Gestalt indicated “poor
impulse control and high levels of anxiety and aspects of poor judgment.”
Dr. Toomer also administered the Carlson Psychological Survey, which
“measures an individual’s overall functioning across four basic dimensions and . . .
compares [the individual’s] functioning against individuals who have been charged
with or accused of crimes.” The test “assess[es] functioning across a variety of
areas such as chemical abuse, thought disturbance, anti-social tendencies and self
depreciation.” It also has various mechanisms to detect whether an individual is
“faking or not responding appropriately” to the psychological evaluation.
Dr. Toomer described Mendoza’s performance on the Carlson Psychological
Survey as “difficult.” The results indicated that Mendoza suffered from
“inferiority, poor self esteem, impulsivity and irrational behavior,” as well as
19
Case: 13-14968 Date Filed: 07/31/2014 Page: 20 of 58
“changes in mood shifts or behavior changes from time to time.” Dr. Toomer
suspected brain damage as a cause for Mendoza’s behavior. The test showed that
Mendoza was in the 99th percentile for chemical abuse and in the 99th percentile
for “thought disturbance.” Dr. Toomer explained that “thought disturbance” refers
to “the degree to which there are perceptual disturbances or difficulty in terms of
reality testing,” and one way to measure thought disturbance is by asking “whether
or not the person experiences hallucinations, audible or visual.” As for anti-social
tendencies, referring to “the tendencies of an individual to violate social norms,”
Mendoza was in the 85th percentile. Mendoza was in the 95th percentile for self
depreciation.
During later meetings with Dr. Toomer, Mendoza demonstrated “heightened
agitation, nervousness, sweating, [and] a sense of being out of touch with reality.”
Mendoza was unable to remember who Dr. Toomer was from one visit to the next
and complained of auditory and visual hallucinations.
Dr. Toomer concluded that Mendoza was “suffering some very significant
deficits in terms of his reality testing and they [were] reflected in impairment both
in terms of cognitive ability as well as affective or emotional ability.” Dr. Toomer
also suspected brain damage, which “would not be inconsistent given [Mendoza’s]
history of drug and substance abuse.” Seeing no evidence of anti-social
personality disorder, Dr. Toomer believed that Mendoza could be rehabilitated.
20
Case: 13-14968 Date Filed: 07/31/2014 Page: 21 of 58
On cross-examination, Dr. Toomer acknowledged that Mendoza did not
actually state that his drug use was a means of “self-medication” for his mental
health problems. Mendoza had only told Dr. Toomer that “he took the drugs
because it calmed him down and helped him to feel better.” This statement led to
Dr. Toomer’s “utilization [sic] that he was using drugs for self-medication.”
Over trial counsel’s objection, the State asked Dr. Toomer if he was aware
that Mendoza had “a pending trial in other robberies using a firearm[?]” Dr.
Toomer was aware of the pending charges. 11 Nevertheless, based on his “mental
status evaluation” and Mendoza’s history, he believed Mendoza could be
rehabilitated. Dr. Toomer testified that he did not find anything indicative of anti-
social personality disorder.
IV. THE STATE’S REBUTTAL PENALTY PHASE EVIDENCE
As rebuttal, the State called Detective Roberto Navarro of the Miami Police
Department. A week after the murder, Detective Navarro arrested Mendoza at his
parents’ home and brought Mendoza to the police station. There, he and another
officer interrogated Mendoza for approximately four hours.
Detective Navarro asked Mendoza “if he used drugs or alcohol.” Mendoza
“said he did not.” Detective Navarro had no trouble speaking with Mendoza—
11
The record does not tell us exactly what the pending charges were. The Florida
Supreme Court, on direct appeal, concluded the trial court erred in allowing the State to bring up
“pending charges” while cross-examining Dr. Toomer. Nevertheless, the state supreme court
found this error harmless beyond a reasonable doubt. See Mendoza I, 700 So. 2d at 677–78.
21
Case: 13-14968 Date Filed: 07/31/2014 Page: 22 of 58
Mendoza did not appear to be under the influence of drugs or alcohol and
“understood and answered clearly and exhibited the processes of a normal person.”
Mendoza’s memory appeared to be accurate and Mendoza “was very relaxed.”
V. PENALTY PHASE CLOSING ARGUMENTS AND VERDICT
A. The State’s Closing Argument
In its closing argument, the State contended that it had proven certain
statutory aggravating circumstances beyond a reasonable doubt. First, Mendoza
was previously convicted of another “felony involving the use . . . of violence to
the person”—specifically, the armed robbery and battery of Street. See Fla. Stat.
§ 921.141(5)(b). Second, Mendoza killed Calderon “for pecuniary gain.” See id.
§ 921.141(5)(f). Third, Mendoza committed his capital felony while he was
engaged in the commission of a robbery. See id. § 921.141(5)(d).
The State argued against the presence of any mitigating circumstances. As
for the non-capital sentences of Humberto and Lazaro Cuellar, the State pointed
out that there were material differences between Mendoza and the Cuellar brothers
beyond the obvious fact that Mendoza was the shooter. For example: (1) Lazaro
stayed in the car, whereas Mendoza did not; (2) Humberto was shot during the
offense, whereas Mendoza shot Calderon four times; (3) Humberto had no prior
criminal record, whereas Mendoza had a prior robbery conviction; (4) Humberto
22
Case: 13-14968 Date Filed: 07/31/2014 Page: 23 of 58
and Lazaro entered into plea agreements, whereas Mendoza pled not guilty; and (5)
Mendoza planned the robbery and recruited Humberto and Lorenzo.
Next, the State argued that Mendoza was not “under the influence of
extreme mental or emotional disturbance” at the time of the murder. See Fla. Stat.
§ 921.141(6)(b). The State acknowledged that Mendoza, while in prison, had been
prescribed psychiatric medication and that he had some history of emotional
problems during childhood. The State asked the jury to focus, however, on his
mental state at the time of the murder in 1992.
The State maintained that Ms. Mendoza’s testimony did not cast doubt on
Mendoza’s culpability. Although Dr. Toomer reported substance abuse, the State
argued it was based on Mendoza’s self-reporting, and thus unreliable. The State
also pointed out that Mendoza did not seek mental health treatment upon arriving
in the United States. The State challenged Dr. Toomer’s testimony, arguing, inter
alia, that Dr. Toomer was biased towards the defense. The State disputed Dr.
Toomer’s opinion that Mendoza could be rehabilitated.
B. Mendoza’s Closing Argument
Defense attorney Wax presented Mendoza’s closing argument. Wax first
emphasized that Mendoza had never planned to kill Calderon. He pointed out that
Mendoza only robbed Street, though he could have killed him. Mendoza and the
Cuellar brothers intended to only rob Calderon, but Calderon fired a shot. Wax
23
Case: 13-14968 Date Filed: 07/31/2014 Page: 24 of 58
stressed that the fact that Calderon fired first was a “very important factor” in what
had happened.
Wax then turned to the mitigating evidence about Mendoza’s background
and mental health problems. He reminded the jury that, unlike aggravating
circumstances, mitigating circumstances need not be proven beyond a reasonable
doubt. Wax stated that “[t]he two witnesses [who] played the most significance
were Mrs. Mendoza . . . and Dr. Toomer.” Ms. Mendoza told the jury about
Mendoza’s “difficult childhood.”
Wax disputed the State’s suggestion that Mendoza’s drug addiction was not
severe. Wax asked the jury to consider these non-statutory mitigating
circumstances: (1) “family background”; (2) “alcohol and drug use or abuse”; (3)
“mental problems”; (4) “the circumstances of the offense itself”; and (5) the non-
capital sentences received by Mendoza’s co-defendants.
As to Ms. Mendoza’s not finding drugs other than marijuana in Mendoza’s
room, Wax pointed out, “[p]arents many times are the last to know.” As for
Mendoza’s failure to seek treatment in the United States, Wax explained, “that is
the hallmark of any addict.”
Challenging the State’s contention that Dr. Toomer was biased, Wax
emphasized that Dr. Toomer had many years of experience and was previously
qualified as an expert. Dr. Toomer’s preliminary tests showed “evidence of brain
24
Case: 13-14968 Date Filed: 07/31/2014 Page: 25 of 58
damage,” as well as “a major chemical dependency.” Wax pointed out that the
State did not rebut Dr. Toomer’s psychological conclusions. Rather, the State’s
expert, Dr. Castiello, evaluated Mendoza only once and only for competency to
stand trial.
C. Jury’s Advisory Verdict
By a vote of seven to five, the jury recommended the death penalty.
VI. FINAL PENALTY HEARING BEFORE STATE TRIAL COURT
Before the final penalty hearing, two more mental health experts examined
Mendoza: Dr. Hyman Eisenstein, at defense counsel’s request, and Dr. Gisela
Puentes, at the State’s request. 12 During the hearing, trial counsel Wax presented
Dr. Eisenstein’s report and called Ms. Mendoza to testify again. The State called
only Dr. Puentes. We review that evidence.
A. Dr. Eisenstein’s Report and Deposition
Dr. Eisenstein, a neuropsychologist, examined Mendoza six times between
March and May of 1994. Prior to meeting Mendoza, Dr. Eisenstein reviewed: Dr.
Toomer’s report, Dr. Haber’s report, Mendoza’s post-arrest records, and
Mendoza’s school records.
12
There is an inconsistency in the record as to whether the doctor’s surname is “Puentes”
or “Fuentes.” The record shows that the doctor signed her report “Puentes,” and thus we use that
name.
25
Case: 13-14968 Date Filed: 07/31/2014 Page: 26 of 58
Dr. Eisenstein conducted his examinations of Mendoza in English. He
testified that “clinically, it wouldn’t make a difference” whether the tests were
conducted in English or Spanish.
Dr. Eisenstein’s report, dated May 12, 1994, contained background facts,
obtained from Mendoza, including: (1) at age 5, Mendoza had “sleep disturbances”
and “night terrors,” and he “‘was scared to sleep by [himself] and slept with [his]
parents’”; (2) Mendoza told Dr. Eisenstein, “‘I had a double personality and
paranoid schizophrenia’”; (3) Mendoza started using marijuana, alcohol, and crack
cocaine upon coming to the United States and used crack cocaine the night before
he killed Calderon; and (4) in 1989, Mendoza was shot in the back and suffered a
blood clot in his right leg. Mendoza “was cooperative with the examination,” and
the “results [were] considered a valid indication of current neuropsychological
functioning.”
After conducting six general types of neurological tests, 13 Dr. Eisenstein
concluded that: (1) “Mendoza present[ed] with mild neuropsychological deficits
with greater left hemispheric language related impairment”; (2) “[t]he
neuropsychological examination was conducted in English and the left hemisphere
13
These tests were: (1) motor measure tests; (2) sensory perceptual tests; (3)
speech/language tests; (4) the Wide Range Achievement Test and Peabody Picture Vocabulary
Test, both to test academic achievement; (5) the Wechsler Adult Intelligence Scale-Revised to
test intellectual/cognitive functioning; (6) the Wechsler Memory Scale-Revised to test memory;
and (7) the Halstead-Reitan Neuropsychological Measures to test neuropsychological
functioning.
26
Case: 13-14968 Date Filed: 07/31/2014 Page: 27 of 58
language skills is [Mendoza’s] greatest area of cognitive compromise”; and
(3) Mendoza demonstrated “mild impairment of complex information processing
skills which [would] lead to impaired judgment and problem solving skills.” Dr.
Eisenstein added, “Of course, under conditions of both psychological stress as well
as drug and alcohol intoxication, his judgment and reasoning skills [would] be
further compromised.”
Dr. Eisenstein acknowledged that his testing uncovered only a “mild”
neuropsychological impairment and that this finding did not rise to the level of the
statutory mitigating circumstance of “extreme” mental or emotional disturbance.
See Fla. Stat. § 921.141(6)(b). Dr. Eisenstein added that “organic brain damage”
was not something that a person either had or did not have, stating “[i]t’s not like
100 percent you do and 100 percent you don’t.” His testing looked at “from a
cognitive brain behavior function what you can and cannot do,” and could establish
only “mild neuropsychological deficits.”
B. Dr. Gisela Puentes
The State called Dr. Puentes, a neuropsychologist, who also examined
Mendoza after the jury’s verdict. Dr. Puentes’s report, admitted into evidence,
stated that Mendoza was not then taking medication and that Mendoza “denie[d]
auditory, visual, olfactory, or tactile hallucinations.” During the evaluation,
Mendoza’s “mood was full and his affect was appropriate.” Mendoza’s “attention
27
Case: 13-14968 Date Filed: 07/31/2014 Page: 28 of 58
span and level of concentration were within normal limits, and he exhibited no
difficulty understanding or following verbal instructions.” Mendoza’s “speech was
fluent and clear” and his “thinking was local, coherent, and goal oriented.” Thus,
Dr. Puentes considered the results of the evaluation valid.
Nevertheless, Dr. Puentes believed that Mendoza may have been motivated
to artificially lower the results of some of the neurological tests she administered.
Dr. Puentes administered eight tests, all in Spanish.14 The vocabulary tests
classified Mendoza in the “Average range.” Dr. Puentes noted that, compared to
earlier testing, Mendoza showed “a marked improvement.” Mendoza
demonstrated “Low Average abstract reasoning skills” and “Average Verbal
Intellectual capacities.” Dr. Puentes speculated that Mendoza’s scores improved
significantly because “previous tests were administered in English.” Dr. Puentes
concluded that “[t]here was no evidence of Left Hemisphere Brain Damage.”
Dr. Puentes also reviewed Dr. Eisenstein’s finding of mild impairment and
decided to redo in Spanish some tests Dr. Eisenstein had done. Dr. Puentes felt
that there were inconsistencies in Dr. Eisenstein’s report and believed that “some
of the tests would have very easily been influenced by the fact that the tests were
14
The tests were: (1) the Wechsler Adult Intelligence Scale-Revised; (2) the Boston
Naming Test; (3) the Rey Auditory-Verbal Learning Test; (4) the Spanish Memory Paragraphs
Test; (5) the Peabody Picture Vocabulary Test-Revised; (6) Finger Tapping and Grip Strength
Tests; (7) the Portland Digit Recognition Test; and (8) a structured interview.
28
Case: 13-14968 Date Filed: 07/31/2014 Page: 29 of 58
administered in English,” given that Mendoza was a non-native speaker who had
only been in the United States for ten years.
Dr. Puentes spoke with Mendoza exclusively in Spanish. Based on her
testing, Dr. Puentes concluded that “[n]one of the findings that [Dr. Eisenstein]
was alleging that existed were actually there when Mr. Mendoza answered the test
in Spanish.” Dr. Puentes concluded that Mendoza was “moderately impaired” and
“simply a language barrier was interfering with his understanding . . . [and] his
ability to express himself in English, and therefore, he was going to look like he
was impaired.”
VII. STATE TRIAL COURT’S SENTENCE
Before the state trial court, defense counsel Wax argued for a non-capital
sentence. As Wax began his argument, the state trial court interrupted him and
said, “the lawyering in this case has been outstanding.” Wax then continued,
noting that the jury’s advisory recommendation of death was by just a seven-to-
five vote, which “ha[d] to be taken into account.” Wax asked the state trial court
to take into account as non-statutory mitigating circumstances the following:
Mendoza’s alcohol and drug abuse, Dr. Toomer’s finding of a major cognitive
impairment, and Mendoza’s childhood trauma in Cuba and Peru.
Over a month after the final hearing, the state trial court sentenced Mendoza.
The state trial court found these three aggravating circumstances existed:
29
Case: 13-14968 Date Filed: 07/31/2014 Page: 30 of 58
(1) Mendoza was previously convicted of a felony involving violence to the
person, see Fla. Stat. § 921.141(5)(a); (2) Mendoza committed a capital felony
“while engaged, or was an accomplice, in the commission of, or an attempt to
commit, or in flight after committing, or attempting to commit [a] robbery,” see id.
§ 921.141(5)(d); and (3) Mendoza’s “capital felony was committed for pecuniary
gain,” see id. § 921.141(5)(f). The state trial court merged the last two aggravating
circumstances and considered them as one.
The state trial court did not find any statutory mitigating circumstances. As
for non-statutory mitigating circumstances, the state trial court stated that it had
“take[n] into consideration the hardship suffered by [Mendoza] as a child in Peru
and the effect of his own child’s medical problems” and rejected this mitigating
factor. It determined that Mendoza’s co-defendants were not similarly situated to
him with regard to participation, culpability, or acceptance of responsibility, and
therefore, their non-capital sentences were not mitigating circumstances. The trial
court stated that it had “taken into consideration” Mendoza’s “drug use and
dependency” and gave it “minimal weight.” The trial court also gave “minimal
weight” to allegations of mental health problems not reaching the level of the
statutory mitigating circumstance. The court stated that it had considered all of the
medical evidence and concluded that Mendoza’s mental problems did “not
diminish [his] responsibility for the capital crime.” As for proportionality, the state
30
Case: 13-14968 Date Filed: 07/31/2014 Page: 31 of 58
trial court determined that, under Florida Supreme Court precedent, the death
sentence was not disproportionate just because “a less culpable co-defendant
receive[d] a less severe punishment.”
In light of these findings, the state trial court sentenced Mendoza to death for
his first-degree murder conviction. 15 On direct appeal, the Florida Supreme Court
affirmed Mendoza’s convictions and death sentence. See Mendoza I, 700 So. 2d at
679.
VIII. STATE 3.850 EVIDENTIARY HEARING, 2008
On September 5, 2000, Mendoza filed an amended motion for state post-
conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure.
The motion asserted, inter alia, a claim of ineffective trial counsel in the penalty
phase by failing to investigate and present additional mitigating evidence. In 2008,
the state 3.850 court held an evidentiary hearing. 16 Post-conviction counsel
presented the testimony of 10 witnesses: trial counsel Arnaldo Suri and Barry Wax,
Dr. Eugenio Rothe, Dr. Ricardo Weinstein, Dr. Deborah Mash, Beatrice Roman,
15
The state trial court also sentenced Mendoza to consecutive sentences of: (1) 15 years
for the conspiracy to commit robbery with a deadly weapon conviction; (2) 15 years for the
attempted armed robbery with a firearm conviction; and (3) life imprisonment for the armed
burglary with an assault conviction. There was no sentence imposed on the conviction count for
use of a firearm during the commission of a felony. See note 2, supra.
16
Prior to the evidentiary hearing, there were two appeals from the 3.850 courts’ initial
denials of Mendoza’s motion. The Florida Supreme Court first required the 3.850 court to
conduct an evidentiary hearing, see Mendoza v. State (“Mendoza II”), 817 So. 2d 848 (Fla.
2002) (table op.), and then to give a more thorough statement of reasons for denying Mendoza’s
3.850 motion after conducting a new evidentiary hearing, see Mendoza v. State (“Mendoza III”),
964 So. 2d 121, 125 (Fla. 2007).
31
Case: 13-14968 Date Filed: 07/31/2014 Page: 32 of 58
Dr. Holly Ackerman, Steven Potolsky, Dr. Thomas Hyde, and Dr. Jethro Toomer.
We outline their 3.850 testimony.
A. Trial Counsel Arnaldo Suri
Trial counsel Suri testified about his work experience at a national law firm,
as a state district attorney in two states, and as a criminal defense lawyer. Suri had
tried at least 50 jury trials when he represented Mendoza, although his first capital
case was Mendoza’s.
Suri was primarily responsible for the guilt phase. Suri also represented
Mendoza in his other armed robbery case involving Street. Because he spoke
Spanish, Suri communicated with Mendoza primarily in Spanish and also met with
Mendoza’s family members in preparation for the penalty phase.
Suri’s testimony established that he knew a great deal about Mendoza’s
background. Suri spoke to Ms. Mendoza “a lot.” Suri learned from her that the
refugee camp where the family lived “was horrible” and “[v]ery violent.” Suri and
Mendoza got along very well and Suri “met with [Mendoza] probably more than
[he] ever met with a client in custody.” During their meetings, Mendoza told Suri
all about his life, including his drug usage, health problems, childhood in Cuba,
and experiences in Peru. Suri shared all of this information with co-counsel Wax,
and Suri was confident Wax relayed this information to the expert witnesses.
32
Case: 13-14968 Date Filed: 07/31/2014 Page: 33 of 58
Back in 1992, Suri never considered asking for funds to travel to Cuba. As
discussed above, Suri did obtain medical records from Cuba to show Mendoza had
many issues as a child.
B. Trial Counsel Barry Wax
Trial counsel Barry Wax testified first about his criminal defense work
experience at the public defender’s office in Miami-Dade County, at a law firm,
and as a solo practitioner. Wax worked on a capital case before representing
Mendoza.
Wax was primarily responsible for the penalty phase. His theory was “to try
to establish that [Mendoza] was not the individual that shot the victim Mr.
Calderon in this case and to try to establish that it was one of the Cuellar brothers
who shot Mr. Calderon.” At a minimum, Wax hoped to show that it was the
Cuellar brothers’ “actions that precipitated Mr. Calderon being killed.” “[S]ince
they had received plea[] negotiations to . . . lesser sentences[,]” Wax expected that
“on a proportionality concept . . . we would be able to persuade a jury that a term
of years or a life sentence would be appropriate.”
Wax also planned to present a “psychological mental health aspect” of the
defense. To do so, Wax first worked with Drs. Haber and Toomer. Wax advised
Dr. Toomer to contact the Mendoza family and obtain background information
about Mendoza. Wax also obtained a competency evaluation conducted by Dr.
33
Case: 13-14968 Date Filed: 07/31/2014 Page: 34 of 58
Castiello after Mendoza claimed to suffer from hallucinations. After the jury
recommended a death sentence, Wax requested the appointment of Dr. Eisenstein
to conduct yet another examination. Wax testified that when he decided to hire
non-Spanish speaking experts Drs. Haber, Toomer, and Eisenstein, he did so
because he “respected them” and felt they were “good witnesses” who could
impart “their information to a jury effectively.”
Wax also attended many meetings with Mendoza and the family members
and “met with [Mendoza’s] mother on several occasions with Mr. Suri or one of
[Wax’s] secretaries translating.” Like Suri, Wax never considered requesting
funds to travel to Cuba. When asked if he knew of “defense attorneys who [in
1992 through 1994] represented Cuban nationals . . . [who] were going to Cuba to
investigate their [clients’] background[s],” Wax said that he was not aware of any
attorneys who did so.
C. Dr. Eugenio Rothe
Dr. Eugenio Rothe, a forensic psychiatrist, evaluated Mendoza in Spanish in
2007. Dr. Rothe testified that Mendoza suffered from “a residue of mild chronic
post-traumatic stress disorder” (“PTSD”), based on his time in the Peruvian
embassy in Havana and the Peruvian refugee camp, and that Mendoza “probably
had a moderate to severe [PTSD] when he first arrived” in the United States.
34
Case: 13-14968 Date Filed: 07/31/2014 Page: 35 of 58
Dr. Rothe believed that Mendoza’s time in Peru, where he lived “with the
law of the jungle,” caused Mendoza to adopt “an attitude [of] . . . identification
with the aggressor.” Mendoza saw the world as comprised of victims and
victimizers, and “he became identified with the victimizer as a defense of not
wanting to be the victim.” Dr. Rothe mistakenly believed that Mendoza lived in
the Peru refugee camp 12 years, rather than two years and three months years.
Dr. Rothe noted that Mendoza’s drug abuse was consistent with PTSD and
that Mendoza used marijuana and powder cocaine, but not crack cocaine, as it
made him nauseous. Dr. Rothe believed that using drugs made Mendoza “more
impulsive” and more “prone to engaging in more violent out-of-control behaviors
than somebody who was not using drugs and who would not have history like Mr.
Mendoza.”
Dr. Rothe administered a specific test for PTSD. Because of the lapse in
time (1992 murder to 2007 testing), Dr. Rothe did not intend the test to produce
“an exact representation of [PTSD] but just to provide a general view and to look
at what specific areas of functioning were affected when he went through all of
these experiences in Peru.” This testing, and the background experiences Mendoza
told Dr. Rothe, led Dr. Rothe to reach his conclusions that Mendoza had “a residue
35
Case: 13-14968 Date Filed: 07/31/2014 Page: 36 of 58
of mild chronic” PTSD in 2007 and “probably” had “moderate to severe” PTSD
when he first arrived in the United States in 1982.17
Dr. Rothe believed that Mendoza’s “neurological immaturity,” as evidenced
by his Cuban medical records, made him more likely to suffer PTSD after being
exposed to traumatic events in the Peruvian embassy and in Peru. However, Dr.
Rothe could not give an accurate diagnosis about Mendoza’s mental state at the
time of the crime because he did not examine Mendoza back then.
D. Dr. Ricardo Weinstein
Dr. Ricardo Weinstein, a forensic neuropsychologist, met with Mendoza
four times between 2000 and 2007, speaking Spanish each time. Most of Dr.
Weinstein’s work in 2008 was related to death penalty cases. Dr. Weinstein
testified that, of the over 100 death row inmates he had previously examined, all
but one or two had shown signs of frontal lobe damage.
In 2000, Dr. Weinstein administered psychological tests, which showed that
Mendoza was not malingering and “had overall brain d[y]sfunction,” particularly
in the frontal lobe area. In 2002, Dr. Weinstein administered another test designed
to measure Mendoza’s executive functioning. This test showed a “very significant
d[y]sfunction” in the frontal lobes, but other parts of Mendoza’s brain appeared
17
Dr. Rothe also suspected the following conditions were present: (1) attention deficit
hyperactivity disorder; (2) polysubstance dependence in remission; (3) psychosis not otherwise
specified; and (4) a learning disability in the verbal area of functioning.
36
Case: 13-14968 Date Filed: 07/31/2014 Page: 37 of 58
normal. For example, Dr. Weinstein noted that Mendoza did “consistently well in
terms of . . . ability for attention.”
Dr. Weinstein determined that Mendoza suffered from brain dysfunctions in
the frontal lobe leading to “significant impairment.” This brain dysfunction was
“the result of developmental and acquired” aspects. Dr. Weinstein stated that
Mendoza could “plan some actions and . . . decide what he’s going to do,” but
could not “really look at the world and put together . . . information . . . in such a
way that” he could make long-term plans and behave accordingly.
E. Dr. Deborah Mash
Dr. Deborah Mash, a neuropharmacologist and an expert on substance
abuse, testified that Mendoza had a “very severe” drug addiction.
In reaching this conclusion, Dr. Mash reviewed, inter alia, Mendoza’s
“social family history,” his Cuban medical information, the mental health expert
reports prepared prior to the trial, Mendoza’s school records, his prison medical
records, “depositions,” and “hearing transcripts.” She also interviewed Mendoza
once in 2007. Dr. Mash believed that Mendoza committed his crime “when he was
under extreme emotional disturbance due to his substance abuse.”
F. Beatrice Roman
Beatrice Roman, a social worker who lived and worked in Peru in the 1980s,
testified about conditions in the Cuban refugee camps there and her meeting
37
Case: 13-14968 Date Filed: 07/31/2014 Page: 38 of 58
Mendoza’s father at the camp. Ms. Roman said that there were approximately 150
tents in the camp. The refugees often had to wait in line to use the restrooms, and
hygiene in the camp was “very bad.”
Mendoza’s father came to Ms. Roman’s office requesting assistance; Ms.
Roman’s office “bought him a vehicle” to use as a taxi cab. Ms. Roman believed
that she met Mendoza, but did not remember much about him.
G. Dr. Holly Ackerman
Dr. Holly Ackerman, a research librarian and professor, interviewed
Mendoza about his experiences at the Peruvian embassy in Havana and the refugee
camps in Peru. According to Dr. Ackerman, Mendoza related that there were
approximately 10,800 people crowded into a 2,000-square-foot area at the embassy
and people were thus “unable to move freely around.” Mendoza said that riots
broke out due to food shortages. At the refugee camps, Mendoza witnessed
“people being hacked and stabbed,” as well as other acts of violence. Mendoza
said to her that “the camp was entirely surrounded by military personnel but there
was no policing inside and so people were left entirely to their fate.”
H. Steven Potolsky
Steven Potolsky, a Florida attorney, testified as an expert about the standards
of professional conduct for capital defense attorneys in the 1990s. Mr. Potolsky
acknowledged that he had hired Dr. Toomer as the sole mitigation expert in a
38
Case: 13-14968 Date Filed: 07/31/2014 Page: 39 of 58
capital case. Mr. Potolsky admitted that he was unaware of any capital defense
attorney in south Florida who had requested funds to travel to Cuba in search of
mitigation evidence on behalf of a Cuban immigrant-defendant.
I. Dr. Thomas Hyde
In 2007, Dr. Thomas Hyde, a neurologist, evaluated Mendoza in English for
two hours. Mendoza described his life experiences to Dr. Hyde. Based on this
description, Dr. Hyde suspected PTSD, although he was not qualified to diagnose
that condition. Dr. Hyde did not identify any events in Mendoza’s background
causing him to suspect brain injury.
For example, Mendoza had no known “traumatic loss of consciousness, of
great significance, no skull f[r]actures, no seizures, no strokes, no fainting spells,
no history of meningitis or [encephalitis], no history of chronic headaches, [and]
no history of brain tumors.” Mendoza’s behavioral problems caused Dr. Hyde to
suspect “developmental brain problems” and “residual attention problems into
adulthood and perhaps frontal lobe problems.” Mendoza had a “significant
substance abuse history.” The neurological tests Dr. Hyde performed showed no
abnormalities other than mild visual deficits.
On cross-examination, Dr. Hyde revealed that Mendoza had told him that,
although he was using marijuana and alcohol the day before the crime, he was not
using cocaine. Mendoza also claimed that he “[w]as not ‘high’ or ‘drunk,’ when
39
Case: 13-14968 Date Filed: 07/31/2014 Page: 40 of 58
he committed the crime.” 18 Dr. Hyde did not believe that Mendoza used alcohol to
the extent that he would experience withdrawal symptoms.
J. Dr. Jethro Toomer
At the 3.850 hearing, Dr. Toomer, the forensic psychologist from the trial,
testified again. When he evaluated Mendoza prior to the 1994 trial, Dr. Toomer
did not receive any medical or school records on Mendoza, did not speak to
Mendoza’s family, and expected that he would have been asked to perform
additional evaluations of Mendoza’s condition. Dr. Toomer admitted, however,
that he learned from Mendoza much of the information that would have been in
medical records, including Mendoza’s trips to see a psychiatrist in Cuba and his
history of drug use. And, thus, Dr. Toomer confirmed that he did not fail to do any
specific thing due to a lack of medical records.
IX. STATE COURTS’ DENIAL OF 3.850 MOTION, 2009–2011
A. State 3.850 Court Order, 2009
On April 8, 2009, the 3.850 court issued a thorough, 30-page order making
factual findings and denying Mendoza’s amended 3.850 motion. The 3.850 court
18
Post-conviction counsel intended to call Lionel Perez, who was Mendoza’s high school
friend and who would have testified that he did a lot of drugs with Mendoza. However,
Mendoza informed the 3.850 court that he did not wish for Perez to testify.
Additionally, post-conviction counsel told the 3.850 court that she believed “that Mr.
Mendoza [was] going to do something extremely detrimental to his case if [she went] ahead and
call[ed] [Perez].” Mendoza added that if post-conviction counsel “forced [him] to put Lionel
Perez [on],” he would “waive all [his] mitigation.” Therefore, post-conviction counsel
“reluctantly” made the strategic decision not to call Perez.
40
Case: 13-14968 Date Filed: 07/31/2014 Page: 41 of 58
discussed in detail Mendoza’s claim of ineffective trial counsel. As to evidence
that Mendoza was a heavy drug user, the 3.850 court noted that Mendoza’s mother
“testified about his drug use at trial,” as did Dr. Toomer. Dr. Eisenstein testified,
in his deposition, about drug use during the penalty hearing before the trial court.
The 3.850 court noted, “even if counsel presented no evidence on this issue,
counsel cannot show prejudice since [Mendoza’s] own expert [Dr. Hyde] testified
[at the 3.850 evidentiary hearing] [Mendoza] was not high” at the time of
Calderon’s murder.
As to Mendoza’s time in the Peruvian embassy and in Peru, the 3.850 court
found that: “[Mendoza’s] mother testified at the penalty phase about the horrible
conditions in the Peruvian Embassy and how family members, including
[Mendoza,] were beat up. [Mendoza’s] mother testified about the trip from Cuba
and the living conditions in the Peruvian camps.” The court considered Ms.
Roman’s testimony cumulative of Ms. Mendoza’s testimony. The court noted that
Ms. Roman did not know Mendoza and did not know of any specific incident that
may have affected Mendoza.
As to experts in addictionology, the 3.850 court noted, “Barry Wax testified
that he asked the [trial] court to appoint Dr. Tropp, an expert in the field of
addiction. That motion was denied. Counsel cannot be deemed ineffective for
asking for and not receiving an expert in the field of addictionology.” More
41
Case: 13-14968 Date Filed: 07/31/2014 Page: 42 of 58
importantly, trial counsel had both Dr. Toomer and Dr. Eisenstein appointed to
evaluate Mendoza, and both experts testified. Thus, trial counsel did present
mental health mitigation. 19
B. Florida Supreme Court Decision, 2011
Mendoza appealed, and the Florida Supreme Court affirmed the denial of his
3.850 motion. See Mendoza v. State (“Mendoza IV”), 87 So. 3d 644 (Fla. 2011).
As for Mendoza’s claim of ineffective trial counsel, the state supreme court
correctly noted that the claim was governed by the two-prong standard in
Strickland v. Washington. Id. at 651–52, 657 (citing Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984) (requiring a petitioner alleging ineffective
counsel to show both deficient performance and prejudice)).
The state supreme court summarized the evidence presented at the guilt
phase, the penalty phase both before the jury and judge, and during the 3.850
evidentiary hearing. Id. at 648–50, 658–59. The state supreme court made several
conclusions. First, the state supreme court concluded that: “Upon careful review
of both the penalty-phase transcript and the evidentiary hearing transcript, we
agree with the circuit court that the jury and trial judge heard the childhood,
19
As to Mendoza’s other new experts, the 3.850 court found: (1) Dr. Rothe “did not work
on cases involving adults in the 1990’s, only juveniles,” and therefore “would not have been
available to evaluate [Mendoza] at the time of the trial or to have testified at the trial”; and (2)
Dr. Ackerman “was a student during the years 1992-1994 and was not qualified as an expert
during that time.” The Florida Supreme Court specifically affirmed the fact-finding regarding
Dr. Ackerman. See Mendoza v. State, 87 So. 3d 644, 665 (Fla. 2011).
42
Case: 13-14968 Date Filed: 07/31/2014 Page: 43 of 58
medical, and psychological information that Mendoza alleged counsel failed to
discover and present.” Id. at 659. The court observed, “the presentation of
cumulative evidence in the postconviction proceedings does not provide a basis for
determining that trial counsel’s performance was deficient.” Id. 20
Second, the state supreme court concluded that Mendoza took “issue with
the manner in which trial counsel presented the evidence” in the penalty phase, but
that was not a proper basis to establish deficient performance. Id. In so
concluding, the Florida Supreme Court cited Everett v. State, and quoted its
statement: “‘That there may have been more that trial counsel could have done or
that new counsel in reviewing the record with hindsight would handle the case
differently, does not mean that trial counsel’s performance . . . was deficient.’” Id.
(quoting Everett v. State, 54 So. 3d 464, 478 (Fla. 2010)).
Third, the state supreme court concluded that Mendoza had later found an
expert whose testimony was more favorable “as to the degree of his mental status
impairment,” but that subsequently obtaining a more favorable mental status
assessment did not establish that trial counsel’s investigation was deficient. Id.
20
Generally speaking, these statements were accurate, as the jury did hear about
Mendoza’s childhood, medical background, and psychological evaluations—including Dr.
Toomer’s several diagnoses. As noted above, it was not until Dr. Rothe’s examination in 2007
that Mendoza was diagnosed with PTSD, and thus, we recognize that the jury in 1994 did not
hear that diagnosis. However, we do not read the Florida Supreme Court to say that the two
prior psychological experts’ diagnoses—i.e., Dr. Toomer’s and Dr. Eisenstein’s—about
Mendoza were exactly the same as Dr. Rothe’s subsequent diagnosis, but only that the jury and
trial court did hear psychological information about Mendoza and that psychological information
was presented again in the 3.850 hearing.
43
Case: 13-14968 Date Filed: 07/31/2014 Page: 44 of 58
Dr. Toomer was Mendoza’s mental health expert at trial, and the Florida Supreme
Court noted that Mendoza’s own legal expert, Mr. Potolsky, testified that he had
used Dr. Toomer as the sole mental health expert in a capital case in this time
period. Id. In other words, that Mendoza had now found more favorable experts
(such as Dr. Rothe and Dr. Hyde) did not make trial counsel deficient in selecting
Dr. Toomer and relying on his evaluation. See id.
X. FEDERAL HABEAS PROCEEDINGS, 2012–2014
On May 18, 2012, Mendoza filed a federal habeas petition under 28 U.S.C.
§ 2254. Mendoza’s petition asserted, inter alia, that he was denied his right to the
effective assistance of counsel in the penalty phase of his trial. The petition
alleged that Mendoza’s trial attorneys failed to adequately investigate Mendoza’s
mental health and background.
On July 25, 2013, the district court issued a 75-page order denying
Mendoza’s § 2254 petition. The district court specifically addressed at length
Mendoza’s claim of ineffective trial counsel in the penalty phase due to failure to
investigate and present mitigation evidence—the claim for which Mendoza
received a COA from this Court.
The district court acknowledged that the Florida Supreme Court ruled on
only Strickland’s performance prong. As to performance and in light of U.S.
Supreme Court precedent, the district court concluded Mendoza had not shown
44
Case: 13-14968 Date Filed: 07/31/2014 Page: 45 of 58
“that the Florida Supreme Court’s decision was an unreasonable application of
clearly established federal law.” The district court cited and discussed at length the
Supreme Court’s seven recent ineffective counsel decisions and concluded
Mendoza had failed to establish deficient performance. 21 Mendoza timely
appealed.
XI. STANDARD OF REVIEW
Mendoza’s federal habeas petition is governed by 28 U.S.C. § 2254(d), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Recognizing that “[s]tate courts are adequate forums for the
vindication of federal rights . . . , AEDPA erects a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudicated in state court.”
Burt v. Titlow, 571 U.S. —, —, 134 S. Ct. 10, 15–16 (2013). Thus, “[a]s a
condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling . . . was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S. —, —, 131 S. Ct.
770, 786–87 (2011). The “purpose of AEDPA is to ensure that federal habeas
21
The decisions the district court discussed and analyzed at length were: (1) Wiggins v.
Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003); (2) Rompilla v. Beard, 545 U.S. 374, 125 S. Ct.
2456 (2005); (3) Bobby v. Van Hook, 558 U.S. 4, 130 S. Ct. 13 (2009); (4) Wong v. Belmontes,
558 U.S. 15, 130 S. Ct. 383 (2009); (5) Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447 (2009);
(6) Sears v. Upton, 561 U.S. 945, 130 S. Ct. 3259 (2010); and (7) Cullen v. Pinholster, 563 U.S.
, 131 S. Ct. 1388 (2011).
45
Case: 13-14968 Date Filed: 07/31/2014 Page: 46 of 58
relief functions as a guard against extreme malfunctions in the state criminal
justice systems, and not as a means of error correction.” Greene v. Fisher, 565
U.S. —, —, 132 S. Ct. 38, 43 (2011) (quotation marks omitted).
AEDPA permits federal courts to grant habeas relief only when the state
court’s adjudication: (1) “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States”; or (2) “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
The phrase “clearly established Federal law” refers “to the holdings, as
opposed to the dicta, of [the U.S. Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct.
1495, 1523 (2000). The phrase “contrary to” means that the state court decision
“contradicts the United States Supreme Court on a settled question of law or holds
differently than did that Court on a set of materially indistinguishable facts.”
Kimbrough v. Sec’y, DOC, Fla., 565 F.3d 796, 799 (11th Cir. 2009). “[I]t is not an
unreasonable application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely established by [the
U.S. Supreme Court].” Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct.
1411, 1419 (2009) (quotation marks omitted).
46
Case: 13-14968 Date Filed: 07/31/2014 Page: 47 of 58
The standard of § 2254(d) is “difficult to meet . . . because it was meant to
be.” Titlow, 134 S. Ct. at 16 (quotation marks omitted). This “highly deferential
standard” demands that “[t]he petitioner carries the burden of proof,” Cullen v.
Pinholster, 563 U.S. —, —, 131 S. Ct. 1388, 1398 (2011) (quotation marks
omitted), and “that state-court decisions be given the benefit of the doubt,”
Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002).
XII. DISCUSSION
A. The Strickland Standard
Mendoza’s claim is governed by the Supreme Court’s two-pronged test
announced in Strickland. See Pooler v. Sec’y, Fla. Dep’t of Corr., 702 F.3d 1252,
1269 (11th Cir. 2012). Under Strickland, to establish constitutionally ineffective
counsel, a defendant must show that (1) his attorney’s performance was deficient
and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at
687, 104 S. Ct. at 2064.
The Strickland performance standard is “objectively reasonable attorney
conduct under prevailing professional norms.” Johnson v. Upton, 615 F.3d 1318,
1330 (11th Cir. 2010); see Strickland, 466 U.S. at 688, 104 S. Ct. at 2065 (“The
proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.”). We look at what professional norms existed at
the time that the attorney acted. See Johnson v. Sec’y, DOC, 643 F.3d 907, 931
47
Case: 13-14968 Date Filed: 07/31/2014 Page: 48 of 58
(11th Cir. 2011). To show that an attorney failed to discharge his Sixth
Amendment duty, a petitioner must establish that the attorney’s conduct
“amounted to incompetence under ‘prevailing professional norms.’” Richter, 131
S. Ct. at 788 (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066).
A petitioner bears the burden of proving, “by a preponderance of competent
evidence, that counsel’s performance was unreasonable.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc); accord Richter, 131 S. Ct.
at 790 (“Strickland . . . calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.”).
Because it would be “all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable . . . a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. This presumption
insulates all but those errors that are “so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687,
104 S. Ct. at 2064.
For prejudice, the standard is whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011) (quoting
48
Case: 13-14968 Date Filed: 07/31/2014 Page: 49 of 58
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). To satisfy the prejudice prong, the
“likelihood of a different result must be substantial, not just conceivable.” Richter,
131 S. Ct. at 792. “Counsel’s errors must be so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 787–88 (quotation marks
omitted).
“Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” Id. at 788. “Where the highly
deferential standards mandated by Strickland and AEDPA both apply, they
combine to produce a doubly deferential form of review that asks only whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d 240, 258 (11th Cir.
2013) (quotation marks omitted), pet. for cert. filed, No. 13-1356 (U.S. May. 8,
2014). “The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Knowles, 556
U.S. at 123, 129 S. Ct. at 1420 (quotation marks omitted). If there is “any
reasonable argument that counsel satisfied Strickland’s deferential standard,” then
a federal court may not disturb a state court decision denying the claim. Richter,
131 S. Ct. at 788.
B. Mendoza’s Claim – AEDPA Deference
49
Case: 13-14968 Date Filed: 07/31/2014 Page: 50 of 58
As a threshold matter, we reject Mendoza’s contention that the district court
erred by applying AEDPA deference to the Florida Supreme Court’s 3.850
decision. Mendoza points to the Florida Supreme Court’s statement that he took
“issue with the manner in which trial counsel presented the evidence at trial,” see
Mendoza IV, 87 So. 3d at 659, and argues that this statement revealed that the state
supreme court misunderstood his claim. He then maintains that, in light of this
error, the Florida Supreme Court’s opinion is not entitled to AEDPA deference and
that his claim should be reviewed de novo.
Mendoza’s argument ignores that he acknowledged in his § 2254 petition
that AEDPA governed the district court’s analysis of his claims. In Mendoza’s
petition and legal memorandum, Mendoza also did not argue for de novo review
before the district court. Thus, he cannot now argue for the first time on appeal for
a different standard of review. See Hurley v. Moore, 233 F.3d 1295, 1297 (11th
Cir. 2000) (stating, in a § 2254 case, “[a]rguments raised for the first time on
appeal are not properly before this Court”).
In any event, we conclude AEDPA deference applies to the Florida Supreme
Court’s performance ruling. The Florida Supreme Court conducted a lengthy
discussion of the mitigation evidence that trial counsel presented through Dr.
Toomer, Dr. Eisenstein, and Ms. Mendoza. See Mendoza IV, 87 So. 3d at 658–59.
The Florida Supreme Court then acknowledged that, Mendoza’s post-conviction
50
Case: 13-14968 Date Filed: 07/31/2014 Page: 51 of 58
counsel presented testimony in the 3.850 hearing from these witnesses: “attorney
Steven Potolsky, psychiatrist Dr. Eugenio Rothe, psychologist Dr. Ricardo
Weinstein, Dr. Debra Mash, a professor of neurology and pharmacology, Beatrice
Roman, a social worker living in Peru who works with Cuban refugees,
psychologist Dr. Jethro Toomer, and Dr. Thomas Hyde, a specialist in behavioral
neurology and neuropsychology.” Id. at 659.
The Florida Supreme Court clearly understood the nature of Mendoza’s
claim, which was that his trial counsel failed to investigate, discover, and present
mitigation evidence. The Florida Supreme Court knew that Mendoza had
presented new witnesses and evidence at the 3.850 hearing. After considering all
of the 3.850 evidence, the state supreme court concluded, inter alia, that the fact
that the testimony of the new experts “may be more favorable as to the degree of
[Mendoza’s] mental status impairment does not establish that trial counsel’s
investigation was deficient.” Id. Therefore, we are not persuaded by Mendoza’s
argument and must apply the AEDPA deference standard to the Florida Supreme
Court’s decision on Mendoza’s claim of ineffective trial counsel.
C. Mendoza’s Claim – Performance Prong
Based on the record here, Mendoza has come nowhere close to satisfying the
combined Strickland-AEDPA standard requiring double deference. Mendoza has
failed to show the Florida Supreme Court’s decision on the performance prong was
51
Case: 13-14968 Date Filed: 07/31/2014 Page: 52 of 58
an unreasonable application of clearly established federal law or based on an
unreasonable determination of the facts.
“As for the [Strickland] performance prong, when a Petitioner’s claim is
that his trial counsel should have done something more, we first look at what the
lawyer did in fact.” Bishop v. Warden, GDCP, 726 F.3d 1243, 1257 (11th Cir.
2013) (quotation marks omitted); see also Lee v. Comm’r, Ala. Dep’t of Corr., 726
F.3d 1172, 1194–95 (11th Cir. 2013), cert. denied sub nom., Lee v. Thomas, No.
13-775, 134 S. Ct. 1542 (Mar. 24, 2014). As detailed earlier, in preparation for the
penalty phase, Mendoza’s trial counsel did a great deal.
Trial counsel conducted a reasonable investigation of Mendoza’s
background and developed a penalty phase-mitigation strategy supported by the
evidence that the investigation produced. Trial counsel not only thoroughly
investigated Mendoza’s mental health, but also looked into other aspects of
Mendoza’s background to discover mitigating evidence. As recounted above, trial
counsel met with Mendoza and his family members on many occasions before
trial. In fact, trial counsel Suri, an experienced criminal defense lawyer, stated that
he met with Mendoza more than he met with any other client in custody and that
he formed a strong relationship with Mendoza. Trial counsel, through Ms.
Mendoza, also obtained Mendoza’s childhood medical records from Cuba. Trial
52
Case: 13-14968 Date Filed: 07/31/2014 Page: 53 of 58
counsel called Ms. Mendoza as a witness, and she testified at length about
Mendoza’s upbringing and struggles in Cuba, Peru, and the United States.
Trial counsel Suri and Wax also had Mendoza examined by three mental
health experts—Drs. Haber, Toomer, and Eisenstein. The record shows that all
three doctors were well-qualified experts and gave a multiplicity of tests to
Mendoza. All three experts issued reports with detailed facts and conclusions
about Mendoza’s mental health and substance abuse. Mendoza has wholly failed
to show that seeking out and obtaining the three experts and their evaluations was
deficient performance.
In arguing that trial counsel’s preparation and presentation of mental health
expert testimony was deficient, Mendoza compares this case to Hinton v. Alabama,
571 U.S. , 134 S. Ct. 1081 (2014). But, Hinton is entirely different. In Hinton,
the Supreme Court held that trial counsel was deficient for failing “to request
additional funding in order to replace an expert he knew to be inadequate because
he mistakenly believed that he had received all he could get under [state] law.” Id.
at 1088. Here, there is no suggestion that trial counsel considered Drs. Haber,
Toomer, or Eisenstein to be anything other than competent witnesses. And, trial
counsel were not under any false impressions about the resources available to him.
In fact, the opposite of what happened in Hinton happened here—trial counsel
53
Case: 13-14968 Date Filed: 07/31/2014 Page: 54 of 58
obtained funding for three expert witnesses. We are not persuaded by the
reference to Hinton.
Mendoza complains that Dr. Toomer did not conduct his mental health
examinations in Spanish. Trial counsel retained Dr. Haber, who did examine
Mendoza in Spanish, and reached conclusions similar to those reached by Dr.
Toomer. Also, the record is replete with evidence that Mendoza spoke and
understood English. Mendoza’s own 3.850 expert, Dr. Hyde, examined Mendoza
in English and felt that doing so was appropriate.
Mendoza also contends trial counsel were deficient for not obtaining further
testing after Dr. Toomer’s pre-trial evaluation. But, counsel did obtain additional
testing before the penalty hearing before the trial judge—Dr. Eisenstein examined
Mendoza for the defense, and Dr. Puentes did so for the State. 22 In fact, trial
counsel did what Mendoza claims should have been done.
Mendoza also takes issue with trial counsel’s failure to provide Dr. Toomer
with background information about Mendoza or access to Mendoza’s family
members. But, at the 3.850 hearing, trial counsel Wax testified that he instructed
Dr. Toomer to speak with Mendoza’s family members. Notably, Dr. Toomer met
22
Dr. Eisenstein’s testing occurred after the jury’s recommendation of death. However,
trial counsel did present mental health evidence from Dr. Toomer and the medical records from
Cuba to the jury. Further, Dr. Eisenstein’s testing occurred before Mendoza’s final hearing
before the state trial court where the death sentence was imposed. As the jury’s verdict was only
advisory and the state trial court had the ultimate sentencing authority, we cannot say that the
failure to present Dr. Eisenstein’s evidence to the jury, when the evidence was presented to the
ultimate sentencer, was deficient performance.
54
Case: 13-14968 Date Filed: 07/31/2014 Page: 55 of 58
with Mendoza four times and Mendoza fully related his social, medical, and
educational background. At trial, Dr. Toomer testified that he did not need more
background information to reach his conclusions.
Mendoza also claims that trial counsel failed to discover that he had PTSD.
But, trial counsel did arrange for Mendoza to be tested by Drs. Haber, Toomer, and
Eisenstein. None of those doctors even recommended further PTSD testing.
Notably, Dr. Rothe’s PTSD diagnosis, made in 2007—at least 25 years after
Mendoza suffered trauma in Peru—was tentative and suspect. For example, Dr.
Rothe testified that he thought Mendoza spent 12 years in Peru. But, the trial
evidence showed that Mendoza was in Peru for only two years and three months.
This discrepancy reveals that Dr. Rothe had a false impression of how much
trauma Mendoza had experienced. Additionally, Dr. Rothe himself acknowledged
that Mendoza may have been malingering. 23
As for Mendoza’s substance abuse, both Ms. Mendoza and Dr. Toomer
testified about this abuse, and Dr. Eisenstein’s report and deposition included
details about substance abuse as well. Trial counsel tried to find an additional
source of testimony about substance abuse—Dr. Tropp, an addictionologist—but
the state trial court denied that request. Further, the 3.850 evidence casts doubt on
23
Notably, too, PTSD evidence—including testimony that Mendoza was “impulsive” and
“prone to engaging in . . . violent out-of-control behaviors”—was a double-edged sword and may
not have helped Mendoza anyway.
55
Case: 13-14968 Date Filed: 07/31/2014 Page: 56 of 58
just how bad Mendoza’s substance abuse problem actually was. For example,
Mendoza’s expert, Dr. Rothe, testified that Mendoza had only tried crack cocaine
and did not like it because it made him nauseous. Dr. Hyde, another defense
expert, testified that Mendoza was not under the influence of a controlled
substance at the time of the crime and was not so addicted to alcohol that he would
experience withdrawal symptoms.
Even if the jury credited Mendoza’s substance abuse evidence, it is not clear
that the evidence would have helped Mendoza. We have previously noted that
“even when there is a factual basis for it, a showing of alcohol and drug abuse is a
two-edged sword which can harm a capital defendant as easily as it can help him at
sentencing.” Tompkins v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999); see
Grayson v. Thompson, 257 F.3d 1194, 1227 (11th Cir. 2001) (“[W]e note that
emphasizing [the petitioner’s] alcoholic youth and intoxication may also have been
damaging to [the petitioner] in the eyes of the jury.”); see also Pooler, 702 F.3d at
1274–75. This is because substance abuse evidence “provides an independent
basis for moral judgment by the jury.” Cade v. Haley, 222 F.3d 1298, 1306 (11th
Cir. 2000).
The record suggests that trial counsel Suri and Wax were aware of the
potential harm that substance abuse evidence could do to their mitigation case.
Before trial, they obtained Dr. Haber’s report, which described Mendoza’s use of
56
Case: 13-14968 Date Filed: 07/31/2014 Page: 57 of 58
acid for almost a full year and Mendoza’s experimentation with Quaaludes and
black beauties. Dr. Haber also noted Mendoza’s “homicidal ideations” and that he
experienced hallucinations when using drugs. Not surprisingly, trial counsel
decided not to call Dr. Haber as a witness, and thus, the jury did not hear about
Mendoza’s use of these drugs—acid, black beauties, and Quaaludes—and the
effects they had on him.
Mendoza also argues on appeal that more should have been said about his
times at the Peruvian embassy in Havana and at the refugee camp in Peru. As
outlined above, Ms. Mendoza did testify about these experiences. In any event,
Ms. Mendoza and petitioner Mendoza were the ones who lived in these places and
knew all about their experiences there. If Mendoza’s attorneys were less than
informed about Mendoza’s experiences in these places, it was because Mendoza
and his mother were less than forthcoming. “An attorney does not render
ineffective assistance by failing to discover and develop evidence of childhood
[troubles] that his client does not mention to him.” Anderson v. Sec’y, Fla. Dep’t
of Corr., 752 F.3d 881, 905 (11th Cir. 2014) (quotation marks omitted), pet. for
reh’g denied, (11th Cir. July 11, 2014); Puiatti v. Sec’y, Fla. Dep’t of Corr., 732
F.3d 1255, 1281 (11th Cir. 2013) (collecting cases), pet. for cert. filed, No. 13-
1349 (U.S. May 8, 2014).
57
Case: 13-14968 Date Filed: 07/31/2014 Page: 58 of 58
Mendoza even argues that his attorneys should have gone to Cuba or Peru in
search of mitigating evidence. But, the 3.850 evidence made clear that, in 1994, it
was not within the prevailing professional norms at the time for attorneys
representing Cuban immigrants to travel abroad to track down mitigating evidence
about their clients. To the extent Mendoza claims trial counsel should have called
expert witnesses to testify about the historical events in which he participated,
Mendoza offered no testimony to show that it was common (or even uncommon)
practice in 1994 for defense attorneys to attempt to offer expert testimony about
historical events when representing defendants who actually lived through those
events.
Given the record and the combined Strickland-AEDPA deferential
standards, we conclude that Mendoza has not shown that the Florida Supreme
Court’s decision was an unreasonable application of clearly established federal law
or based on an unreasonable determination of the facts.
XIII. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Mendoza’s
§ 2254 petition.
AFFIRMED.
58