David Joseph Pittman v. Secretary, FL DOC

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11807
________________________
D.C. Docket No. 8:12-cv-01600-EAK-EAJ
DAVID JOSEPH PITTMAN,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 22, 2017)
Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.
MARCUS, Circuit Judge:
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In this capital case, David Joseph Pittman, a state prisoner in Florida
convicted of the 1990 murder of Barbara, Clarence, and Bonnie Knowles, seeks
federal habeas relief pursuant to 28 U.S.C. § 2254. Following a 9-3
recommendation by the jury in favor of death, the state trial court sentenced
Pittman to death for each of the three murders. The judgment was upheld by the
Florida Supreme Court on direct appeal and again on collateral review. Pittman v.
State, 646 So. 2d 167, 168 (Fla. 1994) (Pittman I); Pittman v. State, 90 So. 3d 794,
799 (Fla. 2011) (Pittman II). Pittman now claims that the state trial court erred in
excluding evidence related to an alternative perpetrator for the killings in violation
of his right to present a meaningful defense as explicated by the Supreme Court in
Chambers v. Mississippi, 410 U.S. 284 (1973), and that his counsel was ineffective
during the penalty phase of the trial in violation of Strickland v. Washington, 466
U.S. 668 (1984). The district court issued a comprehensive opinion denying all
relief. After carefully reviewing the record and with the benefit of oral argument,
we affirm.
I.
A.
The essential facts as drawn by the Florida Supreme Court on direct appeal
are these: Just after 3 a.m. on May 15, 1990, a newspaper deliveryman in
Mulberry, Florida, reported that he had seen a burst of flame on the horizon. When
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the authorities arrived they found the home of Clarence and Barbara Knowles
engulfed in flame. After the fire had been extinguished, the police entered the
house and found the bodies of Clarence and Barbara Knowles along with the body
of their twenty-year-old daughter, Bonnie. A medical examiner determined that
the Knowles family had died not from the fire but from massive bleeding resulting
from multiple stab wounds. Bonnie Knowles’ throat had been cut. An investigator
also determined that the fire was the result of arson, that the phone line to the
house had been cut, and that Bonnie Knowles’ brown Toyota was missing.
At 6:30 a.m. on the morning after the fire, a construction worker noticed a
brown Toyota in a ditch on the side of the road near his job site about one-half mile
from the Knowles residence. A few minutes later, the worker saw a homemade
wrecker -- which he later identified as belonging to Pittman -- pull up to the Toyota
and, shortly thereafter, a cloud of smoke arose from the vehicle. Another witness
who lived near the construction site saw a man running away from the burning car.
She identified Pittman from a photo array as the man she saw that morning.
Pittman knew the Knowles well. At the time of the murders, another of the
Knowles’ daughters, Marie, was going through a contentious divorce with Pittman.
During the process, Pittman had made several threats against Marie and her family.
Adding to the strain, Pittman had recently discovered that Bonnie Knowles was
attempting to press criminal charges against him for an alleged rape that had
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occurred five years earlier.
Carl Hughes, a jailhouse informant, testified that Pittman had confessed to
him that he committed the murders. As Pittman told it, he went to the Knowles’
house intending to speak with Bonnie Knowles. She let Pittman in and they talked,
but when Bonnie resisted his sexual advances, he killed her in order to stop her
cries for help. Pittman then murdered Bonnie’s mother, Barbara Knowles, in the
hallway outside Bonnie’s bedroom and then killed Clarence Knowles as the father
tried to use the phone to call for help. Hughes said that Pittman also admitted to
burning down the house and stealing the Toyota before setting it aflame. Pittman
I, 646 So. 2d at 168.
David Pittman was charged with the murders of Clarence, Barbara, and
Bonnie Knowles, grand theft, burglary, and arson. He was represented by Robert
Norgard and Robert Trogolo of the public defender’s office and proceeded to trial.
As relevant here, midway through the state’s case in chief, defense counsel brought
to the trial court’s attention a letter that had been sent to the prosecutor on the case.
In the letter, a prisoner named George Hodges claimed that his stepson, Jessie
Watson, sent him a letter -- which Hodges had since destroyed -- in which Watson
confessed to murdering three people in a house in Mulberry along with his cousin,
Aaron Gibbons. At the time of Pittman’s trial, Hodges was on death row for the
murder of a convenience store clerk in Plant City, Florida. Watson had initially
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served as an alibi witness for Hodges, but at trial he changed his story and became
a key witness for the prosecution. Watson testified that not only was Hodges lying
about the alibi, Hodges had also confessed to Watson that Hodges had committed
the murder. Notably, Hodges explained that he destroyed the letter on the advice
of another inmate because he thought it was just a joke and it would only cause
him trouble.
At the time defense counsel raised the Hodges issue, Marie Pridgeon --
Pittman’s ex-wife and a potential alternative perpetrator under the defense’s theory
of the case -- was on the stand. Defense counsel asked for time to investigate the
allegations in the letter before moving forward with the cross examination so the
defense would not be put in the position of presenting inconsistent defense theories
were the investigation to reveal evidence to substantiate Watson’s involvement.
The court, the prosecutor, and defense counsel all agreed that the best course of
action was to put off further examination of Pridgeon until the following Monday
in order to give investigators from the public defender’s office time to follow up on
any leads and allow the attorneys to participate in the investigation over the
weekend.
When defense counsel reported back to the court, the defense had identified
both Watson and Gibbons and confirmed they used crack cocaine together and
lived less than a mile from where witnesses had seen the wrecker at issue in the
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case. Gibbons’s grandmother, who Gibbons was known to stay with, lived near
the site of the murders. From pictures of Gibbons, defense counsel learned that he
had very bad acne, which aligned with a witness description of the man running
away from Bonnie’s burning car. Defense counsel also discovered that Gibbons
knew Bonnie Knowles and there were rumors that he had dated her and used to
sneak into her bedroom at night to see her. Gibbons reported that he was at home
on the night of the murder, but had no independent verification of his alibi.
Defense counsel asked the court to give them until Wednesday, April 10 to follow
up on these leads and for the court to have the state transport Michael Bedford,
another inmate who claimed to have seen the letter from Watson, so that he could
be questioned. Again, the court granted the defendant’s requests.
When they returned on Wednesday, defense counsel reported that they had
uncovered additional information that undercut Gibbons’s credibility. Gibbons
had denied being involved in a burglary with Hodges and Watson when
interviewed by the police, but at his later deposition he admitted that this was a lie.
Gibbons also admitted to being involved in the theft of a boat motor after which he
burned the boat to cover any fingerprints. Bedford had also confirmed Hodges’s
story about the letter. Based on these additional pieces of information, the
defendant asked for and was granted a further continuance until Friday, April 12.
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On Monday, April 15, the court heard arguments on whether to allow
Hodges to testify as to the content of the now-destroyed letter from Watson. The
state argued that Hodges’s testimony about the contents of the letter was hearsay
which did not fall under any exception and that the testimony had insufficient
indicia of trustworthiness and reliability. In addition to the inherent shakiness of
the defense evidence, the prosecution pointed to Watson’s unequivocal denial that
he had written the letter and evidence that Watson had been at work at 7 a.m. on
the morning after the murder, when there was testimony that the car was burned
some distance away at 6:40 a.m.
The defendant, in turn, argued that Chambers v. Mississippi, 410 U.S. 284,
302 (1973), required allowing the testimony notwithstanding any Florida
evidentiary rule to the contrary because the information they had found in their
investigation sufficiently corroborated the letter so that Hodges should be able to
testify about its contents. Ultimately, the trial court excluded Hodges’ testimony.
The trial court read Chambers as prohibiting the exclusion of critical defense
evidence only when there was “considerable assurance of [the evidence’s]
reliability.” And because the court found that the evidence lacked this sort of
corroboration or any other indicia of trustworthiness, the testimony was
inadmissible.
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After the close of the evidence, the jury returned a verdict of guilty as to
each of the three counts of first-degree murder, two counts of arson, and one count
of grand theft. The trial court then moved straight into the penalty phase.
B.
At sentencing, the State offered as statutory aggravators under Florida law
that Pittman had a prior conviction for a felony involving a threat of violence, that
the murders of Clarence and Barbara Knowles were committed for the purpose of
avoiding lawful arrest, and that each of the murders were heinous, atrocious, and
cruel. The State primarily relied on its guilt phase evidence to support these
aggravators, but did call one witness to substantiate Pittman’s prior conviction for
a crime involving a threat of violence.
Defense counsel presented an elaborate and substantial body of mitigation
testimony from seven family members -- Freddy Joe Farmer, Bill Pittman, Nina
Jane Farmer, Barbara Ann Farmer, Eugene Pittman, Bobbi Jo Pittman, and Francis
Marie Pittman. Among other things, the family members testified that Pittman had
difficulty at school and was a slow learner. Indeed, Pittman was never able to
succeed in school -- his normal grade was an F and a high grade for him would be
a D. Despite these grades, he was socially promoted each year until he reached the
ninth grade. Moreover, Pittman was hyperactive and impulsive. Pittman’s
stepfather testified that he was called to pick up Pittman on the first day of first
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grade because he was disrupting the class. His mother described him as “[a] very
rambunctious little boy,” “a child most women would not want to have to raise.”
His parents knew about these problems but were simply too poor and
dysfunctional to deal with them effectively. Thus, for example, they took Pittman
to a psychiatrist when he was ten or eleven years old. Pittman saw the psychiatrist
four or five times, but the family had to discontinue both the visits and the Ritalin
the psychiatrist prescribed because they didn’t have the money to pay for them.
Pittman’s parents also offered testimony at the penalty phase about head injuries
Pittman had suffered as a child that may have compounded his problems. Both
parents recalled Pittman being hit in the head with either a brick or a rock. His
mother also testified regarding an incident when Pittman was six years old and
passed out while trying to syphon gasoline out of an old car with a hose.
Defense counsel also established from multiple witnesses, including
Pittman’s mother and father, his aunt and uncle, his stepbrother, and his sister, that
Pittman’s mother was physically and verbally abusive with her children, and the
witnesses generally agreed that Pittman got it worse than his siblings. In fact, his
mother admitted to whipping him with a belt starting when he was 4 years old. She
recalled that she had spanked him “every day, every other day” and that she “beat
the shit out of him” with a belt. She testified that she also used broom handles to
inflict punishment on the petitioner. Her husband told her at one point that she
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“was going to have to quit breaking the brooms because he was having to buy one
a week.” She also said that she whipped her children with hot wheel tracks
because “[y]ou can take a little hot wheels track and it will never blister, never
bruise,” and wouldn’t leave any marks. She used other forms of discipline as well.
After Pittman admitted to spilling a can of oak stain in a newly redone room, his
mother made him remain on a bench in a corner of the kitchen for seven days
straight, leaving only to use the rest room. Indeed, when asked whether she ever
worried about child services being called, she gave this chilling response:
I would give them their little whippings and I’d sit the phone right in
the middle of the floor and say, “If you want to call them, call them.
They may put me in jail and I may have to spend the night, but sooner
or later they’re going to let me out. And when they let me out you’re
going to the hospital. If you want to put me in jail, fine.”
The remainder of defense counsel’s extensive penalty phase presentation
came from Dr. Henry Dee, a clinical psychologist who specialized in clinical
neuropsychology and child psychology. He held a master’s degree in
physiological psychology and a doctorate in clinical neuropsychology, both from
the University of Iowa. After completing his doctorate, Dr. Dee remained at the
University of Iowa for five years of residency and a professorship. He had also
been a senior consultant on head injuries for the Veteran’s Administration during
the Vietnam War. After leaving the University of Iowa and returning to Florida he
worked in private practice as a psychologist and consulted with child protective
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services in the area. At the time of the Pittman trial, he had testified as an expert in
over 1000 cases.
Dr. Dee opined that Pittman suffered from a severe form of attention deficit
disorder with hyperactivity. He explained that this meant Pittman was overactive
as a child, was easily distracted, had an extreme need for attention, and had
difficulties with inhibition. These qualities caused him to encounter difficulty
when dealing with authority figures and resulted in him acting out to receive
attention. These problems, combined with Pittman’s reading disability, led the
family to mistakenly conclude that he was “simply a disruptive child who wasn’t
very bright,” when in reality he was a child with “normal intellectual endowment”
suffering from a combination of a severe psychological disorder and a learning
disability.
Dr. Dee concluded Pittman’s conduct was symptomatic of organic brain
damage. The testimony from Pittman’s mother and father that the petitioner
reached developmental milestones at a late age (e.g. learning to talk at age 4) led
Dr. Dee to conclude that the damage was at least partly congenital. Dr. Dee
offered that this congenital brain damage was worsened by significant head injuries
as a child and ingestion of toxic substances.
Pittman’s psychological assessment scores also suggested the presence of
organic brain damage. For example, while he had a full scale IQ of 95 -- only
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slightly below average -- he had a full scale memory quotient of 65 -- which was
below 99 percent of the population. Similarly, while Pittman performed
adequately on a general test of verbal function, he performed in the second
percentile on a test that asked him to give all the words he could think of that
began with a particular letter of the alphabet. Dr. Dee explained that these dramatic
inconsistencies were indicative of organic brain damage.
He added that Pittman’s brain damage manifested itself later in life in mood
instability evincing moods that swung wildly and were “frequently all out of
proportion to what is going on,” severe paranoid ideation, and recurrent episodes
of extreme aggression and rage. Pittman also displayed symptoms of severe
apathy and indifference and impaired social judgment. The brain damage and
abuse was particularly troubling because of the mental health problems found in
Pittman’s family. Pittman’s biological father had been diagnosed as a paranoid
schizophrenic and died in a mental institution, and he had another son -- Pittman’s
half-brother -- who was a paranoid schizophrenic as well. Further testing indicated
that Pittman was addicted to alcohol or some other major psychoactive substance.
Dr. Dee explained that he thought the family was “almost totally
dysfunctional.” He said that he had never heard a family member admit to as
much physical abuse as Pittman’s mother did on the stand, and that he believed
there was “much more.” Dr. Dee also testified that Pittman said that he had been
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raped three or four times when he was only eight or nine years old by one man and
on two other occasions by another man. Dr. Dee further explained that this sort of
abuse was consonant with Pittman’s “super macho, nothing can hurt me, take any
kind of risk” behavior later in life.
Connecting these facts to the offense, Dr. Dee opined that Pittman was under
great psychological stress at the time of the murders. He was going through a
difficult divorce, and he was under federal investigation for large equipment theft.
Pittman had come to see himself as persecuted -- “anytime anything went wrong
they came looking for David Pittman, no matter what the crime.” He also drank at
least two to four beers that evening, further compounding his problems with a lack
of inhibition. In Dr. Dee’s view the combination of these stressors -- the alcohol
and the organic brain damage -- would have made Pittman borderline psychotic, to
an extent that he lost touch with reality. He added that Pittman’s ability to
conform his behavior to the law would have been severely impaired.
Dr. Dee summarized his view of the mitigating evidence this way:
[A]t the time of the commission of the crime Mr. Pittman suffered
major mental and emotional disturbance as is evidenced both by
impairment in cognitive function, that is, memory impairment, and
other scattered findings, and difficulties in emotional control. That
would make it much more difficult for him to adequately conform his
conduct to the standards of the law. I view as nonstatutory mitigation
in this case a childhood replete with abuse, both physical and sexual,
mostly physical, but significantly sexual. The failure of his parents
and the school system to recognize what was wrong with him and to
provide him with a more prosthetic environment, that is, an
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environment in which . . . to grow so that he could become a useful
member of society simply was never provided.
Finally, Dr. Dee testified that Pittman was not beyond redemption; rather, Dr. Dee
believed Pittman’s psychological problems could be managed through a
combination of medication and psychological counseling.
Notwithstanding this powerful presentation of mitigating evidence, the jury
recommended by a vote of 9-3 that Pittman receive the death penalty for each of
the three murders. In its sentencing order, the trial court found as aggravating
circumstances that each murder was heinous, atrocious, and cruel, Fla. Stat. §
921.141(6)(h); that Pittman had committed the murders having a previous
conviction for a felony involving a threat of violence, Fla. Stat. § 921.141(6)(b);
and that the murders were committed after Pittman had committed two previous
capital felonies, Fla. Stat. § 921.141(6)(b) -- i.e. the other two murders.1 Pittman
1
In its sentencing order, the trial court specifically found the following:
1. As an aggravating circumstance, the Defendant, David Joseph Pittman, was
proven beyond and to the exclusion of every reasonable doubt to have a previous
conviction of a felony involving the use or threat of violence; to wit: Aggravated
Assault. (Case No. CF85–3584A1—Sentenced on March 12, 1986.)
2. As an aggravating circumstance, the Defendant, David Joseph Pittman, was
proven beyond and to the exclusion of every reasonable doubt to have committed
two previous capital felonies as to each of the three murders for which he has
been found guilty; to wit: the murders of Bonnie Knowles and Barbara Knowles
as to the murder of Clarence Knowles; the murders of Barbara Knowles and
Clarence Knowles as to the murder of Bonnie Knowles; the murders of Clarence
Knowles and Bonnie Knowles as to the murder of Barbara Knowles.
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I, 646 So. 2d at 169 n.1. As for mitigating circumstances, the trial court
determined that they had little if any connection to the homicides and that they
3. As an aggravating circumstance, the commission of the First Degree Murder of
Bonnie Knowles was especially heinous, atrocious or cruel.
By testimony and evidence in the record the court finds that the State proved
beyond and to the exclusion of all reasonable doubt that Bonnie Knowles
experienced conscious pain and suffering before death as a result of the Defendant
cutting and stabbing Bonnie Knowles numerous times with a knife or similar
object.
4. As an aggravating circumstance, the commission of the First Degree Murder of
Barbara Knowles was especially heinous, atrocious or cruel.
By the testimony and evidence in the record the Court finds that the State proved
beyond and to the exclusion of every reasonable doubt that Barbara Knowles [a]
experienced pre-death apprehension of physical pain; [b] experienced conscious
pain and suffering before death as a result of the Defendant stabbing Barbara
Knowles numerous times with a knife or similar object; and [c] that she
experienced apprehension of impending death even absent physical pain.
5. As an aggravating circumstance, the commission of First Degree Murder of
Clarence Knowles was especially heinous, atrocious or cruel.
By testimony and evidence in the record the Court finds that the State proved
beyond and to the exclusion of every reasonable doubt that Clarence Knowles [a]
experienced pre-death apprehension of physical pain; [b] experienced
apprehension of death even absent physical pain; and [c] experienced conscious
pain and suffering before death as a result of the Defendant stabbing Clarence
Knowles numerous times with a knife or similar object.
THE COURT concludes from these facts that David Joseph Pittman’s actions in
murdering each of the three individuals was especially heinous, meaning
extremely wicked or shockingly evil; was especially atrocious, meaning
outrageously wicked or vile; and was especially cruel, meaning designed to inflict
a high degree of pain with utter indifference to, or even with enjoyment of, the
suffering of others.
Pittman I, 646 So. 2d at 169 n.1.
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were outweighed by the aggravators in the case.2 Pittman I, 646 So. 2d at 169 n.2.
Based on these findings, the trial court imposed a sentence of death for each of the
three murders. Id. at 169.
2
The trial court explained its findings this way:
1. That the three First Degree Murders for which the Defendant is to be sentenced
were not committed while the Defendant was under the influence of extreme
mental or emotional disturbances, nor were they mitigated by the use of alcohol as
suggested. To the contrary, the Court finds the Defendant [a] arranged the visit to
his father’s house on the eve of the murders, the first time in months that he had
been to his father’s house; [b] that he left the house by an outside door from a
locked room; [c] walked the short distance in the early morning hours to the
victim’s home; and [d] there cut the telephone lines to the outside of the house.
The Defendant upon entering the victim’s home, systematically killed all the
occupants of the house using a weapon that assured the least possibility of
drawing the attention of witnesses. He then proceeded in a knowledgeable way to
pour gasoline about the house and out into the yard. Testimony at the trial
revealed that he understood the use of fire to destroy evidence. Before setting the
fire, however, he secured the keys to Bonnie Knowles[’] car for the purpose of his
getaway.
The Defendant’s actions and all other evidentiary circumstances considered show
a direct conscious plan to kill and avoid apprehension. These actions do not
indicate a person functioning under the influence of extreme mental or emotional
disturbances. In regard to the influence of alcohol, other than the expert’s opinion,
the record does not reflect it to have been a factor in the commission of the
murders.
2. Except for the solicited opinions of the Defendant’s expert that the Defendant’s
capacity to conform his conduct to the requirements of the law was substantially
impaired, this mitigating circumstance is unsupported by any other evidence in
the record.
To the contrary, these facts reveal that all the actions by the Defendant leading up
to the killings, the nature of the killings themselves, the methodical steps taken to
destroy evidence, to effectuate a getaway, and to establish an alibi were the
product of deliberate thought. These actions clearly show that the Defendant knew
what he was doing and that it was unlawful. Again the presence of alcohol as a
mitigating factor is unsupported by the record except for the expert’s opinion.
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C.
After conviction, Pittman appealed the judgment to the Florida Supreme
Court. In his brief, he again argued that the trial court’s exclusion of Hodges’s
testimony violated his right to due process as set forth in Chambers. The Florida
Supreme Court denied his appeal. Pittman I, 646 So. 2d at 171–72. Pittman later
challenged his convictions and sentences collaterally. He filed a state habeas
THE COURT finds there is nothing in the record to demonstrate that the
Defendant could not conform his conduct to the requirements of law.
3. The expert has offered an opinion as a mitigating circumstance that the
Defendant suffers brain damage. Other than this opinion there exists no
corroborating evidence to suggest the presence of this damage or its degree, nor
its actual relationship to the murders.
4. Additional mitigating circumstances offered in evidence are that the Defendant
was and may still be a hyperactive personality, and that he may have suffered
physical and sexual abuse as a child. Also the expert testified that the Defendant
was an impulsive person with memory problems and impaired social judgment.
Taking all these mitigating circumstances in a light most favorable to the
Defendant, the Court finds they have little if any connection to the murders. The
record speaks clearly of an individual who went about the killings and the
destruction of evidence in a deliberate, methodical and efficient manner to such
an extent that detection was nearly avoided. But for a lady picking roses early one
morning who happened to see the Defendant running from Bonnie Knowles’
burning car, the case might not have been successfully prosecuted.
While addressing meaningful facts, the record reflects another that enlightens
upon the issues of the Defendant’s intentions and his capacity to understand what
he was doing was unlawful. That fact was the Defendant’s cutting of the
telephone lines. This was admitted by the Defendant to witness Hughes as being
done before the Defendant entered the home of the victims.
THE COURT, therefore, finds the aggravating circumstances established by the
proper burden of proof to substantially outweigh all mitigating circumstances
reflected in the record.
Pittman I, 646 So. 2d at 169 n.2.
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petition directly with the Florida Supreme Court raising his challenge to the
exclusion of the Hodges testimony. He also filed a Rule 3.850 motion raising
several claims, including ineffective assistance of counsel, in the postconviction
trial court.
The postconviction trial court granted an evidentiary hearing on Pittman’s
claim that he was afforded ineffective assistance of counsel during the penalty
phase. As for this claim, Pittman put on testimony from several new witnesses,
and attempted to elicit additional information from a few witnesses who testified
during the trial.
First, Pittman offered testimony from two of his teachers, Tillie Woody and
Jean Wesley, both of whom had been interviewed by Pittman’s original trial team
but had not been asked to testify at the penalty phase. They observed that Pittman
was not successful in school but, notably, did not have any significant behavior
problems. Pittman also introduced additional evidence concerning his substance
abuse, and the physical and sexual abuse he sustained as a child. For example,
Robert Barker, his former boss, testified that he “huffed a lot of gas,” drank gas
with milk, and used crack cocaine. Michael Pittman, Pittman’s younger brother,
testified that he thought Pittman had likely been sexually abused by a group of
older neighborhood kids and by a babysitter and that Pittman had used
amphetamines and huffed gasoline as a teenager. Bill Pittman, still another of the
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petitioner’s brothers, confirmed that Pittman used methamphetamine and testified
that Pittman had been molested by the owner of the gas station where he worked.
Dr. Henry Dee also testified at the collateral hearing. After listening to the
earlier testimony, Dee was asked whether there was “anything that you would now
change about the opinions that you gave during the course of the trial?” He
responded: “No. It might be a little additional in terms of the corroboration I have
and so forth, but I think it would be essentially the same.”
The lead attorney on Pittman’s original case, Robert Norgard, also testified
regarding how he prepared for the penalty phase. At the time of the trial, Norgard
was a trial attorney with the public defenders’ office who had ten years of criminal
experience. He was assigned to Pittman’s case because of his experience in capital
cases. Norgard was assisted on the case by Robert Trogolo, another attorney with
the public defender’s office, and two investigators, one of whom was a mitigation
specialist who had been with the office for seven years by the time of Pittman’s
trial. Significantly, these investigators commenced their investigation well in
advance of trial and obtained extensive records relevant to mitigation. Thus, for
example, documents offered at the collateral hearing demonstrated that Norgard’s
team had obtained extensive documentation of Pittman’s poor performance in
school and Pittman’s many childhood psychological issues. Norgard generally
believed that it would not be helpful to present records like these one by one to the
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jury; instead, he relied on witnesses like Dr. Dee to synthesize, summarize, and
explain this body of mitigating evidence.
The postconviction trial court denied Pittman’s penalty-phase-ineffective-
assistance claim and the Florida Supreme Court affirmed. Pittman II, 90 So. 3d at815–16. The Florida Supreme Court also denied Pittman’s state habeas motion
raising his claim regarding the exclusion of the Hodges testimony. Id. at 818.
Pittman raised several claims including the exclusion of the purportedly
exonerating letter from Hodges and the ineffective assistance claim again in his §
2254 petition filed in United States District Court for the Middle District of
Florida. The district court denied Pittman relief on all of his claims. As for the
exclusion of evidence, the court determined that the Florida Supreme Court had
applied a procedural bar in its decision on postconviction review and that this
constituted an adequate and independent state law ground to deny relief. In the
alternative, however, it addressed the merits and concluded that the Florida
Supreme Court’s decision was neither contrary to nor an unreasonable application
of clearly established Supreme Court precedent. As for ineffectiveness of counsel,
the district court concluded that the Florida Supreme Court’s Strickland
determination was neither contrary to nor an unreasonable application of clearly
established Supreme Court law. We granted a certificate of appealability as to
these two claims.
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II.
We review de novo a district court’s denial of habeas relief pursuant to §
2254, as well as its legal conclusions and its resolution of mixed questions of law
and fact. Wellons v. Warden, 695 F.3d 1202, 1206 (11th Cir. 2012).
Because Pittman’s petition was filed after April 24, 1996, this case is
governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir.
2016). AEDPA limits the scope of federal habeas review of state court judgments
in the spirit of furthering “comity, finality, and federalism.” Michael Williams v.
Taylor, 529 U.S. 420, 436 (2000). Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court shall not be granted habeas relief on a
claim “that was adjudicated on the merits in State court proceedings” unless the
state court’s decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law as determined by the Supreme Court of the United
States; or . . . 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). “For
§ 2254(d), clearly established federal law includes only the holdings of the
Supreme Court -- not Supreme Court dicta, nor the opinions of this Court.” Taylor
v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1293–94 (11th Cir. 2014).
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As for the “contrary to” clause, “a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Terry Williams
v. Taylor, 529 U.S. 362, 412–13 (2000). Under the “unreasonable application”
clause, a federal habeas court may “grant the writ if the state court identifies the
correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts.” Id. at 413. “In other words, a
federal court may grant relief when a state court has misapplied a ‘governing legal
principle’ to ‘a set of facts different from those of the case in which the principle
was announced.’” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76 (2003)). And “an ‘unreasonable application of’
[Supreme Court] holdings must be objectively unreasonable, not merely wrong;
even clear error will not suffice.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)
(per curiam) (quotation omitted). To overcome this substantial hurdle, “a state
prisoner must show that the state court’s ruling on the claim being presented in
federal court 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. 86, 103 (2011). This is “meant to
be” a difficult standard to meet. Id. at 102.
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As for any factual findings, we must “presume the correctness of state
courts’ factual findings unless applicants rebut this presumption with ‘clear and
convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007)
(quoting 28 U.S.C. § 2254(e)(1)). “Clear and convincing evidence is a ‘demanding
but not insatiable’ standard, requiring proof that a claim is highly probable.”
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013) (quoting Ward v.
Hall, 592 F.3d 1144, 1177 (11th Cir. 2010)). “If reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination.” Brumfield v. Cain, 135 S. Ct.
2269, 2277 (2015) (quotations omitted and alterations adopted).
Finally, under § 2254(d)(1), “we review the state court’s ‘decision’ and not
necessarily its rationale.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citing Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255
(11th Cir. 2002)). “Telling state courts when and how to write opinions to
accompany their decisions is no way to promote comity.” Wright, 278 F.3d at
1255. Requiring state courts to explain in detail their decisions “smacks of a
‘grading papers’ approach that is outmoded in the post-AEDPA era.” Id.III.
In his first claim, Pittman argues that the state trial court’s exclusion of the
testimony of George Hodges regarding the Watson letter deprived him of his
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constitutional right to present a complete defense in violation of Chambers v.
Mississippi, 410 U.S. 284 (1973). Before addressing the merits,3 we must first
decide whether the Florida Supreme Court adjudicated the claim on the merits
entitling its determination to deference under § 2254(d)(1).
“When a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.” Harrington, 562 U.S. at 99. That presumption stands unless rebutted by
evidence from the state court’s decision and the record that “leads very clearly to
the conclusion that the federal claim was inadvertently overlooked in state court.”
Childers v. Floyd, 736 F.3d 1331, 1334 (11th Cir. 2013) (en banc) (quoting
Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013)) (alteration adopted).
Here, Pittman’s Chambers claim was squarely presented to the Florida
Supreme Court on direct appeal; his brief addressed this claim at considerable
length and made it quite clear that he was raising a federal constitutional claim
along with his state law evidentiary claim. He argued that the exclusion of the
Hodges testimony violated his right to present a defense as articulated in
3
As an initial matter, the district court erred when it determined that the Florida Supreme
Court’s invocation of its rule against reconsideration of already determined claims constituted an
adequate and independent state ground barring federal review. “When a state court declines to
review the merits of a petitioner’s claim on the ground that it has done so already, it creates no
bar to federal habeas review.” Cone v. Bell, 556 U.S. 449, 466 (2009). We, therefore, proceed
to review this claim as though it were not treated as procedurally barred.
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Chambers. Notably, his brief focused not on compliance with the Florida hearsay
rule, but instead on federal constitutional cases and Florida cases applying these
principles. Likewise, when the Florida Supreme Court reviewed the argument
Pittman had made in the trial court, it would have been apparent that Pittman
clearly focused on his Chambers claim. Nonetheless, in addressing the Hodges
evidence on direct appeal, the Florida Supreme Court said only that “the trial judge
correctly excluded Hodges’ testimony as substantive evidence under the hearsay
rule and that there is no applicable hearsay exception.” Pittman I, 646 So. 2d at
172.
On collateral review, Pittman again raised the Chambers issue in his petition
for a writ of habeas corpus filed directly with the Florida Supreme Court. In the
section of his brief addressing Chambers v. Mississippi, 410 U.S. 284 (1973),
Pittman added a discussion of Holmes v. South Carolina, 547 U.S. 319 (2006),
another case in the Chambers line addressing a constitutional override of a state
evidentiary rule. In Holmes, the Supreme Court struck down a South Carolina rule
that precluded the defense from offering evidence of third party guilt if the
prosecution case is based on forensic evidence. 547 U.S. at 328–29. The Court
held that this rule was not rationally related to a legitimate interest; “by evaluating
the strength of only one party’s evidence, no logical conclusion can be reached
regarding the strength of contrary evidence offered by the other side to rebut or
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cast doubt.” Id. at 331. Accordingly, applying the rule to exclude important
defense evidence violated the petitioner’s right to present a meaningful defense.
Id. Again, there can be no doubt that Pittman had raised a constitutional claim.
The Florida Supreme Court held that it could not address Pittman’s
constitutional argument because “claims raised in a habeas petition which
[Pittman] ha[d] raised in prior proceedings and which have been previously
decided on the merits in those proceedings are procedurally barred in the habeas
petition.” Pittman II, 90 So. 3d at 818 (alteration omitted and emphasis added)
(quoting Porter v. Crosby, 840 So. 2d 981, 984 (Fla. 2003)). Indeed, Florida’s high
court recognized that Pittman had raised a constitutional claim arising under
Chambers and its progeny. Specifically, it acknowledged in footnote 11 that
Pittman’s argument was based on Holmes v. South Carolina and Williamson v.
United States. Pittman II, 90 So. 3d at 818 & n.11. Holmes v. South Carolina
squarely confronted the defendant’s right to present a meaningful defense. 547
U.S. at 324. Williamson v. United States addressed the hearsay exception for
statements against penal interest. 512 U.S. 594, 596 (1994).
For starters, because the issue was clearly presented in his initial appeal, we
presume that the Florida Supreme Court adjudicated the claim on the merits. See
Williams, 133 S. Ct. at 1096–97. Moreover, the Florida Supreme Court’s rejection
of this claim on collateral review because it had already been adjudicated “on the
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merits,” specifically citing to Holmes v. South Carolina, strongly suggests to us
that Florida’s high court did not overlook Pittman’s constitutional claim. After all,
we can see little reason why the Florida Supreme Court would have cited to a
Supreme Court case addressing a defendant’s right to present a meaningful defense
and rule that the argument was barred because it had previously been rejected on
the merits, if the court had not indeed previously rejected that argument on the
merits. See Cone v. Bell, 556 U.S. 449, 466–67 (2009). Nothing in this record
“leads very clearly to the conclusion that the federal claim was inadvertently
overlooked in state court.” Childers, 736 F.3d at 1334 (quotations omitted and
alterations omitted). We are, therefore, obliged to afford the Florida Supreme
Court deference under § 2254(d)(1). But even if we were to examine the Florida
Supreme Court’s determination without any deference, we would discern no error
in its ruling on Pittman’s exclusion of evidence claim.
“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690
(1986) (citations and quotations omitted). But that right is not unbounded. See
Chambers, 410 U.S. at 302. “In the exercise of this right, the accused, as is
required of the State, must comply with established rules of procedure and
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evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.” Id. (emphasis added). But where those rules are “arbitrary
or disproportionate to the purposes they are designed to serve” they must fall to the
accused’s right to present a defense. Rock v. Arkansas, 483 U.S. 44, 56 (1987).
The Florida Supreme Court’s refusal to grant relief based on the exclusion of
the Hodges letter and the proffered testimony was neither contrary to nor an
unreasonable application of clearly established Supreme Court precedent. Pittman
says that Chambers v. Mississippi, 410 U.S. 284 (1973), Rock v. Arkansas, 483
U.S. 44, 56 (1987), Washington v. Texas, 388 U.S. 14 (1967), and Crane v.
Kentucky, 476 U.S. 683 (1986), cannot be reconciled with the Florida Supreme
Court’s holding, but they are all easily distinguishable. In Rock, the Supreme
Court placed great weight on the fact that an evidentiary rule operated to exclude
the defendant’s own testimony, see 483 U.S. at 57; whereas, here, Pittman’s
testimony was not at issue. And in Washington, the state had applied a common
law bar on accomplice testimony, which the Supreme Court held was an “arbitrary
rule[] that prevent[ed] whole categories of defense witnesses from testifying on the
basis of a priori categories that presume them unworthy of belief.” Id. at 16–17,
22–23. Finally, in Crane, the Supreme Court focused on the lack of justification
for Kentucky’s absolute bar on evidence related to the circumstances surrounding a
confession. 476 U.S. at 691. No such arbitrary rule is in play here. To the
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contrary, the Supreme Court has long recognized the substantial and legitimate
interests served by the prohibition on hearsay testimony. See Chambers, 410 U.S.
at 298.
The closest case to our facts actually is found in Chambers v. Mississippi,
410 U.S. 284 (1973). In that case, the defendant, Leon Chambers, was charged
with the shooting of Officer Aaron “Sonny” Liberty during a chaotic riot outside a
pool hall in Woodville, Mississippi. Id. at 285–87. One month before Chambers’s
trial, Gable McDonald, who had also been at the riot, returned to Woodville at the
request of a man called Reverend Stokes. After speaking with Stokes, McDonald
gave a sworn confession to Chambers’s attorneys, and acknowledged that he had
confessed to others. Id. at 287–88. One month later, McDonald repudiated his
confession, claiming that he had been enticed to confess. Id. at 288. When
Chambers attempted to call the three friends to whom McDonald confessed to
testify at trial, the trial court excluded their testimony under Mississippi’s hearsay
rules, which provided no exception for statements made against penal interest. Id.
at 289, 299. The Supreme Court held that this exclusion deprived Chambers of his
constitutional right to present a defense because the statements were critical to
Chambers’s defense and “bore persuasive assurances of trustworthiness” thus
taking them outside the rationale for the hearsay prohibition. Id. at 302.
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Pittman’s case is far from “materially indistinguishable” from Chambers. In
Chambers, McDonald confessed at least four times; “[t]he sheer number of
[McDonald’s] independent confessions provided additional corroboration for
each.” Id. at 300. Here, Watson confessed at most once. McDonald’s confessions
were to friends with no motive to fabricate evidence against him, while Hodges
had a clear motive to get back at Watson, a key witness in the prosecution that
landed him on death row. While McDonald repudiated his confession, he never
denied he had made the statement; here, significantly, Watson stated under oath
that he never wrote the letter. What’s more, in this case there was no letter
produced, and Hodges’ explanation of the letter’s absence hardly inspires
confidence -- he said he destroyed the letter because he thought it was a joke. No
one thought McDonald was joking. Moreover, unlike Chambers, who produced
evidence that McDonald had purchased a gun of the same caliber as the murder
weapon just before the shooting, Pittman produced no physical evidence tying
Watson to the crime. And unlike in Chambers, where eyewitnesses placed
McDonald at the scene before, after, and even during the shooting, no witnesses
ever placed Watson or his cousin at the Knowles residence that night or near
Bonnie Knowles’s burning Toyota the next morning. The Florida Supreme
Court’s rejection of Pittman’s claim was not contrary to Chambers.
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Nor was the decision an unreasonable application of clearly established
federal law. The Florida hearsay rule is not arbitrary in general nor was the
exclusion of the Hodges evidence disproportionate to the interests served by the
rule. At the relevant time, Florida’s Rules of Evidence excluded out of court
statements offered to prove the truth of the matter asserted. Like many
jurisdictions, Florida recognized an exception for statements made against penal
interest. Under the rule, “[a] statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is inadmissible, unless corroborating
circumstances show the trustworthiness of the statement.” Fla. Stat. § 90.804(2)(c)
(1989). The Florida rule thus largely tracks Chambers’s holding. See Chambers,
410 U.S. at 302 (holding that the hearsay rule cannot be applied to exclude critical
defense evidence that bears “persuasive assurances of trustworthiness”).
The bar on hearsay remains firmly grounded in the state’s legitimate interest
in excluding unreliable and untrustworthy testimony from a jury’s consideration.
The hearsay rule, which has long been recognized and respected by
virtually every State, is based on experience and grounded in the
notion that untrustworthy evidence should not be presented to the
triers of fact. Out-of-court statements are traditionally excluded
because they lack the conventional indicia of reliability: they are
usually not made under oath or other circumstances that impress the
speaker with the solemnity of his statements; the declarant’s word is
not subject to cross-examination; and he is not available in order that
his demeanor and credibility may be assessed by the jury.
Chambers, 410 U.S. at 298.
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Since hearsay prohibitions are not arbitrary, Pittman would only be entitled
to a constitutional override of Florida’s rules if Pittman had offered evidence that
the Hodges’ hearsay statement was sufficiently trustworthy and reliable. See, e.g.,
id. at 302 (holding that the generally valid prohibition on hearsay was overcome
because the hearsay evidence “bore persuasive assurances of trustworthiness”).
Pittman failed to meet his burden. The declarant, Watson, denied ever writing any
confession letter, and the only evidence that this letter ever existed came from two
death row inmates, one of whom had a powerful interest in seeing Watson
prosecuted -- not only to get revenge because Watson had testified against him, but
also to exonerate himself. Although it’s not clear how, Hodges apparently
believed that this letter would allow him to clear his own name. In his letter to
Pittman’s prosecutor, Hodges intimated that proving Watson committed the triple
homicide would also prove that Hodges did not commit the murder he was
convicted of. Indeed, at his deposition, Hodges said that his own conviction was
“why [he] wrote [the letter].”
Nor did the weak and circumstantial evidence discovered by the defense
team make up for these deficiencies. All defense counsel could confirm was that
Gibbons and Watson frequented an area near the murder site, had used crack
cocaine on occasion, matched some aspects of the witnesses’ description of the
man who was seen running away from Bonnie’s car, and had destroyed evidence
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by fire in the past. These facts fall far short of the “circumstances that provided
considerable assurance of [the hearsay evidence’s] reliability” in Chambers. 410
U.S. at 300. That’s especially true where, as here, there was also evidence that
undercut the Watson-as-perpetrator theory. Notably, the prosecution presented
records establishing that Watson had checked in for work at 7 a.m. at Seminole
Fertilizer on the morning after the murder, despite the fact that Bonnie Knowles’s
car had been set on fire some distance away around 6:40 a.m.
In as much as the Florida Supreme Court could reasonably have determined
that the proffered evidence did not offer sufficient assurances of trustworthiness to
override the traditional reliability concerns embodied in the hearsay rules, its
decision to reject this claim was neither contrary to nor an unreasonable
application of clearly established federal law under § 2254(d)(1), and the district
court was correct to deny Pittman relief.
Indeed, we would not overturn the Florida Supreme Court’s affirmance of
the exclusion of this evidence even if our review was de novo. The accuracy of
jury trials depends on adversarial testing, and the broad prohibition on hearsay
evidence reflects an understanding that hearsay statements are not amenable to
many of the methods our adversarial system relies on to test the quality of
evidence. Chambers, 410 U.S. at 298. Hearsay statements are typically unsworn,
and since the statement was made outside court, the jury is unable to assess the
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tone and the demeanor of the speaker as they would with live witness testimony.
Id. The declarant is also not subject to cross examination -- “the greatest legal
engine ever invented for the discovery of truth.” California v. Green, 399 U.S.
149, 158 (1970) (quotation omitted). Given the substantial reliability concerns
surrounding Hodges’s testimony, particularly his clear motive to point the finger at
Watson, Watson’s unambiguous denial under oath, and the absence of any letter,
the trial court’s exclusion of this hearsay evidence would not have violated the
command of Chambers and its progeny even were we to consider the issue without
affording any deference to Florida’s high court.
The long and short of it is that Pittman sought to admit into evidence
testimony from a death row inmate who claimed to have received and then
destroyed a letter in which the lynchpin witness who put him on death row
allegedly confessed to the triple homicide Pittman was accused of. It is not hard to
understand why the trial court was skeptical of this story. Corroborating a
peripheral fact here or there does not overcome the essential reliability concerns
presented by this evidence. Whether applying deference or not, we can discern no
error in this determination.
IV.
Pittman also argues that his counsel provided ineffective assistance at the
penalty phase of the trial by failing to uncover and present additional evidence
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regarding Pittman’s abusive childhood, substance abuse, and mental health,
including the possibility that Pittman had brain damage. The Florida Supreme
Court affirmed the denial of this claim in these words:
Pittman asserts that trial counsel was ineffective in the penalty phase
in failing to present additional evidence of mental health issues and
other mitigation. He asserts that the postconviction court erred in
denying relief on this claim. He claims that defense counsel was
ineffective in the following ways: (1) in failing to present four
additional witnesses -- Robert Barker, Michael Pittman, Jean Wesley
and Tillie Woody -- to attest to his substance abuse and life-long
afflictions, and (2) in failing to elicit additional information from three
witnesses -- Tammie Davis, William Pittman, and Dr. Dee -- who
testified during the penalty phase. This issue was addressed at the
evidentiary hearing below and the postconviction court addressed it at
length in its order denying relief, concluding as follows:
Although the testimony of these witnesses presents a
harsh and depressing picture with respect to Mr.
Pittman’s childhood, drug use and sexual abuse, the court
does not find that the defense has shown that trial
counsel’s performance with regard to presenting mental
health and other mitigation evidence fell below an
objective standard of reasonableness. Dr. Dee testified at
trial regarding Mr. Pittman’s mental health issues, drug
problems, and sexual abuse. Claim VII of Defendant’s
Motion is denied.
Based on this record, we conclude that Pittman has failed to show that
the postconviction court erred in denying this claim. The court’s
factual findings are supported by competent, substantial evidence and
the court properly applied the law. Pittman has failed to show that
counsel rendered deficient performance in the penalty phase and that
the defendant was thereby prejudiced. Under the above standard of
review, Pittman has failed to show that trial counsel was ineffective in
this respect.
Pittman II, 90 So. 3d at 815–16.
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Strickland v. Washington, 466 U.S. 668 (1984), governs Pittman’s claim of
ineffective assistance. To satisfy the Strickland standard, Pittman “must show that:
(1) counsel’s performance was deficient because it fell below an objective standard
of reasonableness; and (2) the deficient performance prejudiced the defense.”
Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007). “In
considering claims that counsel was ineffective at the penalty phase of trial, we
determine whether counsel reasonably investigated possible mitigating factors and
made a reasonable effort to present mitigating evidence to the sentencing court.”
Id. (quotation omitted). “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be
to assist the defendant at sentencing. Nor does Strickland require defense counsel
to present mitigating evidence at sentencing in every case.” Wiggins, 539 U.S. at
533. Instead, the standard for counsel’s performance is “reasonableness under
prevailing professional norms.” Strickland, 466 U.S. at 688. What is reasonable
will depend on the context of the particular case. See Wiggins, 539 U.S. at 522–
23.
In evaluating counsel’s performance, our review is objective. McClain v.
Hall, 552 F.3d 1245, 1253 (11th Cir. 2008). “Because this standard is objective, it
matters not whether the challenged actions of counsel were the product of a
deliberate strategy or mere oversight. The relevant question is not what actually
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motivated counsel, but what reasonably could have motivated counsel.” Gordon v.
United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citation omitted).
“Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland and §
2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” Harrington, 131 S. Ct. at 788 (citations omitted). “Given the strong
presumption in favor of competence, the petitioner’s burden of persuasion --
though the presumption is not insurmountable -- is a heavy one.” Chandler v.
United States, 218 F.3d 1305, 1314 (11th Cir. 2000).
Pittman asserts that his counsel’s performance was deficient because he
failed to “obtain records, talk to teachers, properly interview family members, and
locate and interview those familiar with Pittman and his history.” This claim is
flatly contradicted by the record. Pittman was represented by experienced counsel,
and his counsel was assisted by an experienced mitigation specialist investigator.
Notably, the team began preparing for the penalty phase at least six months in
advance of trial, and interviewed many more witnesses than were ultimately
presented at the penalty phase. Based on a comprehensive investigation, Pittman’s
attorneys made a thorough penalty phase presentation consisting of testimony from
nine witnesses that spanned some 215 pages of trial transcript.
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Of the witnesses that Pittman presented before the postconviction court, only
one testified that he had not been interviewed by the defense -- Michael Pittman,
petitioner’s brother, who had been in the military stationed in Louisiana at the
time. Robert Barker did not testify one way or the other, but defense records
suggest that he was interviewed regarding any information he might have relevant
to the penalty phase. As for the two teachers, both Tillie Woody and Jean Wesley
testified that they had been interviewed before the original trial. They testified that
Pittman was functioning behind grade level, but otherwise said they had no
significant problems with Pittman. Both testified that he was not particularly
hyperactive or aggressive. In light of this testimony, Norgard may well have not
called them to testify during the penalty phase because he concluded that these
witnesses would undercut his theory that Pittman was under the constant strain of a
congenital birth defect exacerbated by childhood injuries and manifesting itself as
hyperactivity, impulsivity, and aggression.
Pittman also claims that his counsel’s performance was deficient because he
failed to offer evidence that would have given a fuller picture of the childhood
physical abuse, evidence that would have established Pittman’s heavy drug use,
and evidence that would have corroborated a history of childhood sexual abuse.
None of these objections have merit either.
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First, Pittman’s childhood abuse was on full display at the original trial. The
testimony of Pittman’s family (Freddy Joe Farmer, Bill Pittman, Nina Jane Farmer,
Barbara Ann Farmer, Eugene Pittman, Bobbi Jo Pittman, and Francis Marie
Pittman) could have left no doubt in the mind of either the judge or the jury that
Pittman’s mother was physically abusive and that Pittman had had a very rough
childhood. In fact, his mother testified at length about the constant abuse she
meted out on her children and her efforts to avoid detection. Among other things,
she testified that she beat her children with everything from belts to broom handles
to two-by-fours, and the evidence established that the petitioner got the worst of
the abuse. It was not unreasonable for counsel to think this was enough to make
the point.
As for Pittman’s argument that his counsel should have highlighted his drug
abuse in the mitigation phase, we have often commented that substance abuse
evidence can be a “two-edged sword.” Stewart, 476 F.3d at 1217; Tompkins v.
Moore, 193 F.3d 1327, 1338 (11th Cir. 1999) (“[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.”). “Rarely, if ever, will evidence of [substance abuse] be
so powerful that every objectively reasonable lawyer who had the evidence would
have used it.” Stewart, 476 F.3d at 1217. In defense counsel’s opening statement
he emphasized that Pittman’s problems were not of his own making. Highlighting
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Pittman’s voluntary drug use may well have undercut this theory. We cannot say
that a strategic decision not to further emphasize Pittman’s drug use was
objectively unreasonable. See Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994)
(noting reasonableness of lawyer’s possible fear that defendant’s voluntary drug
and alcohol use could be “perceived by the jury as aggravating instead of
mitigating”) (emphasis omitted).
The evidence presented during the original penalty phase regarding sexual
abuse came from Dr. Dee relating that Pittman had told him he had been abused by
two men. At his postconviction hearing, Pittman presented testimony from one
brother who would have confirmed this abuse and from another brother who could
have speculated about additional abuse. Pittman argued that the failure to uncover
and present the additional corroborating evidence constitutes deficient
performance. However, counsel is not required to track down every lead. And
sexual abuse is no different. See Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d
881, 908 (11th Cir. 2014) (holding that the failure to uncover and present evidence
of sexual abuse was not deficient performance where counsel put on an otherwise
comprehensive mitigation defense). It was neither an unreasonable application of
nor contrary to clearly established federal law for the Florida Supreme Court to
conclude that the failure to run this particular lead to ground did not take counsel’s
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performance below an objective standard of reasonableness in light of the overall
investigation.
Moreover, Pittman has not shown that any of these claimed failures was
prejudicial. To establish prejudice under Strickland, the petitioner “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at 694.
We conduct this inquiry by “reweigh[ing] the evidence in aggravation against the
totality of available mitigating evidence” and asking whether there is a reasonable
probability of a different sentence. Cullen v. Pinholster, 563 U.S. 170, 198 (2011)
(quotation omitted). When reweighing aggravators and mitigators, we focus on
their weight, rather than their sheer number. Boyd v. Allen, 592 F.3d 1274, 1302
n.7 (11th Cir. 2010).
At the penalty phase, Dr. Henry Dee, a superbly qualified mental health
expert, testified at length, summarizing and synthesizing the testimony elicited
from Pittman’s family members, and explaining how organic brain damage
coupled with a childhood of extreme trauma and instability would manifest itself in
severe psychiatric disabilities later in Pittman’s life. He testified again at Pittman’s
postconviction hearing. And after listening to all of the additional testimony, Dr.
Dee was asked whether there was “anything that you would now change about the
opinions that you gave during the course of the trial?” He responded: “No. It
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might be a little additional in terms of the corroboration I have and so forth, but I
think it would be essentially the same.”
Pittman argues, nevertheless, that the Florida Supreme Court’s Strickland
determination on the prejudice prong was “contrary to” Sears v. Upton, 561 U.S.
945 (2010), because the Florida Supreme Court failed to perform “a probing and
fact-specific analysis” of prejudice. Id. at 955. But Pittman takes Sears out of
context. In Sears, the Supreme Court was sitting in direct review of the decision of
the Georgia postconviction court. Accordingly, it was not required to give
AEDPA deference to the state court decision and could demand a more fulsome
analysis. See Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1330 (11th Cir. 2013)
(“[U]nlike the state court decision in this appeal, the decision in Sears was not
subject to deferential review under section 2254(d) because the defendant had
directly appealed the decision of the state court on state collateral review.”). When
§ 2254(d)(1) deference applies, we are precluded from employing such exacting
scrutiny; rather, we are required to determine whether the state court’s adjudication
was objectively unreasonable. See, e.g., Williams, 133 S. Ct. at 1095 (2013)
(noting that “federal courts have no authority to impose mandatory opinion-writing
standards on state courts”).
Pittman also says that the Florida Supreme Court’s decision on prejudice
was an unreasonable application of Strickland because the decision of the trial
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court indicates that the decision would likely have been different had Dr. Dee’s
testimony been corroborated. As for Pittman’s capacity to conform his conduct to
the law, the trial court commented that “[e]xcept for the solicited opinions of the
Defendant’s expert . . . this mitigating circumstance is unsupported by any other
evidence in the record.” The trial court made the same observation with regard to
the evidence of brain damage. But though the trial court did comment on the lack
of corroboration, it certainly did not say the decision would have been different
had additional corroboration been provided. Rather, the trial court focused on the
lack of evidence connecting the mitigation evidence to the circumstances of the
particular offense and contrasted that with the substantial evidence of Pittman’s
calculated planning in accomplishing the murders.
In this regard, this case is similar to Ponticelli v. Sec’y, Fla. Dep’t of Corr.,
690 F.3d 1271 (11th Cir. 2012). In Ponticelli, the defendant argued that the state
court had rejected his mental health testimony relating to his alleged cocaine-
induced mental disturbance because there was no evidence about his use of cocaine
on the night of the murders. Id. at 1297. Thus, the defendant argued that it was
objectively unreasonable to conclude that new evidence of cocaine use would be
cumulative rather than prejudicial. We rejected this argument because the state
court’s rejection of the mental health evidence was also based on the fact that
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defendant’s “actions on the night of the murder strongly suggested that he was in
control of his actions.” Id.The same analysis applies here. Throughout his sentencing order, the trial
court focused on the heinous nature of the acts, the number of homicides, and the
deliberate steps Pittman took to accomplish the murder and avoid detection. After
summing up the mitigating evidence, the trial judge concluded:
Taking all these mitigating circumstances in a light most favorable to
the Defendant, the Court finds they have little if any connection to the
murders. The record speaks clearly of an individual who went about
the killings and the destruction of evidence in a deliberate, methodical
and efficient manner to such an extent that detection was nearly
avoided. But for a lady picking roses early one morning who
happened to see the Defendant running from Bonnie Knowles’
burning car, the case might not have been successfully prosecuted.
While addressing meaningful facts, the record reflects another that
enlightens upon the issues of the Defendant’s intentions and his
capacity to understand what he was doing was unlawful. That fact was
the Defendant’s cutting of the telephone lines. This was admitted by
the Defendant to witness Hughes as being done before the Defendant
entered the home of the victims.
THE COURT, therefore, finds the aggravating circumstances
established by the proper burden of proof to substantially outweigh all
mitigating circumstances reflected in the record.
Pittman I, 646 So. 2d at 169 n.2. Read as a whole, this order provides little support
for Defendant’s claim that the lack of corroborating evidence was the deciding
factor in the sentencing court’s decision. On this record, it was not unreasonable
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for the Florida Supreme Court to conclude that Pittman had failed to establish
prejudice.
Finally, Pittman argues that when the additional evidence presented on
collateral review is considered cumulatively against the aggravators presented at
trial, there is a reasonable probability of a different outcome. See Cullen, 563 U.S.
at 198. We remain unpersuaded. The defendant faced an uphill battle. Pittman
had been convicted of a triple homicide that involved a high degree of violence and
many indicia of premeditation. He snuck out the back door of his father’s house
after everyone else was asleep and cut the phone line to the victims’ house. Once
inside, he stabbed to death three members of his ex-wife’s family. He set the
house on fire, stole his sister-in-law’s car, drove it some distance away, and then
set it on fire too. Based on these facts, the trial judge found that each of the three
murders was committed in a manner that was heinous, atrocious, and cruel.
Pittman I, 646 So. 2d at 169 n.2. In Florida, “the heinous, atrocious, or cruel”
aggravator is one of the “most serious aggravators set out in the statutory
sentencing scheme.” Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999). In the face of
these facts and the extensive mitigating evidence offered by defense counsel at the
penalty phase, adding all of this together, the good and the bad, there is no
reasonable probability that the additional mitigating evidence would have changed
the outcome. Wiggins, 539 U.S. at 534. It was neither an unreasonable application
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of nor contrary to clearly established federal law for the Florida Supreme Court to
determine that Pittman had failed to establish prejudice.
Quite simply, the Florida Supreme Court reasonably applied clearly
established Supreme Court law. Pittman has failed to meet his burden under §
2254(d) and is not entitled to relief. Accordingly, we deny Pittman’s petition for a
writ of habeas corpus.
AFFIRMED.
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JORDAN, Circuit Judge, concurring in the judgment.
I agree that Mr. Pittman is not entitled to habeas relief on his two claims, but
my analysis differs somewhat from that of the majority.
1. In my opinion the Florida Supreme Court completely failed to address,
on direct appeal, Mr. Pittman’s federal due process claim under Chambers v.
Mississippi, 410 U.S. 284 (1973), and its progeny. As the majority notes,
Mr. Pittman clearly asserted this constitutional claim in the trial court and on
appeal, yet the Florida Supreme Court only addressed a non-existent claim under
state hearsay law. See Pittman v. State, 646 So. 2d 167, 172 (Fla. 1994). Applying
the analysis set forth in Childers v. Floyd, 736 F.3d 1331, 1334 (11th Cir. 2013)
(en banc), I conclude that Mr. Pittman has successfully rebutted the presumption
that the Florida Supreme Court addressed and resolved the Chambers claim on the
merits. See, e.g., Bester v. Warden, 836 F.3d 1331, 1336–37 (11th Cir. 2016). I
would therefore review the Chambers claim without AEDPA deference.
Under plenary review, however, Mr. Pittman’s Chambers claim fails. As the
majority correctly explains, see Maj. Op. at 34–35, the circumstances surrounding
Mr. Watson’s letter did not provide sufficient assurance of reliability. See
Chambers, 410 U.S. at 300.
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2. With respect to the Sixth Amendment claim, I agree with the majority
that Mr. Pittman’s attorneys provided effective assistance of counsel at the penalty
phase. See Maj. Op. at 35–41. I therefore would not address the prejudice prong
of Strickland v. Washington, 466 U.S. 668 (1984).
With these thoughts, I concur in the judgment.
48