Keith Edmund Gavin v. Commissioner, Alabama Department of Corrections

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11271
____________________
KEITH EDMUND GAVIN,
Petitioner-Appellee,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
Respondent-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:16-cv-00273-KOB
____________________
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2 Opinion of the Court 20-11271
Before JORDAN, BRANCH, and LUCK, Circuit Judges.
BRANCH, Circuit Judge:
Keith Gavin is an Alabama prisoner serving two death
sentences and a term of life imprisonment following his 1999 jury
convictions on two counts of capital murder and one count of
attempted murder. After pursuing a direct appeal and
postconviction relief in the Alabama state courts, Gavin filed a
federal habeas petition under 28 U.S.C. § 2254, alleging, in relevant
part, that his counsel rendered constitutionally ineffective
assistance during the penalty phase and that the jurors engaged in
premature deliberations before the penalty phase in violation of his
constitutional right to a fair trial. The district court denied relief
on Gavin’s juror misconduct claim, but it concluded that the state
court’s determination that counsel was not ineffective was an
unreasonable application of Strickland v. Washington, 466 U.S. 668(1984). Accordingly, the district court conditionally granted Gavin
habeas relief on his ineffective-assistance claim, unless Alabama
initiated new sentencing proceedings within 90 days of the order.
The Commissioner of the Alabama Department of
Corrections (“Alabama”) appeals the grant of habeas relief. Gavin
cross-appeals, arguing that the district court correctly granted
habeas relief on his ineffective-assistance claim. In the alternative,
he argues that habeas relief is warranted on his juror misconduct
claim. After review and with the benefit of oral argument, we
reverse the district court’s decision granting habeas relief on
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20-11271 Opinion of the Court 3
Gavin’s ineffective-assistance claim because the state court’s
determination that counsel was not ineffective during the penalty
phase was not contrary to, or based on an unreasonable application
of, Strickland. As for Gavin’s cross-appeal, we affirm the denial of
habeas relief for the juror misconduct claim.
I. Background
A. The Guilt Phase of Trial
In 1998, an Alabama grand jury indicted Gavin on two
counts of capital murder in connection with the murder of William
Clayton, Jr., and one count of attempted murder in connection
with shooting at a law enforcement officer. Gavin v. State, 891 So.
2d 907, 926 (Ala. Ct. Crim. App. 2003). The murder of Clayton
constituted two capital counts because (1) it was committed during
the course of a robbery in the first degree, and (2) Gavin had been
convicted of another murder within the previous 20 years. 1 See
Ala. Code § 13A-5-40(a)(2), (13) (1975). Attorneys H. Bayne Smith
and John H. Ufford, II, were appointed to represent Gavin at trial.
At Gavin’s November 1999 trial, the evidence established
that the victim, Clayton, was a courier driver for Corporate Express
Delivery Systems, Inc. Gavin, 891 So. 2d at 927. On the evening
of March 6, 1998, after completing his deliveries, Clayton stopped
1
In 1982, Gavin was convicted of murder in Illinois and served 17 years of a
34-year sentence. Gavin, 891 So. 2d at 930. Gavin was on parole for the 1982
murder at the time of the Alabama murder. Id.USCA11 Case: 20-11271 Date Filed: 07/14/2022 Page: 4 of 53
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at a Regions Bank to use an ATM. Id. Eyewitnesses, including
Gavin’s cousin, Dewayne Meeks,2 testified that Gavin approached
Clayton’s van parked outside the bank, shot Clayton, got into the
van, and then drove off. Id.An investigator with the local district attorney’s office heard
about the shooting over the radio and witnessed the van matching
the description pass him. Id. at 928. He pursued the van. Id. When
he turned on his emergency lights, the van stopped in the middle
of the road, the driver got out, turned toward the investigator, and
began shooting before running off into the woods. Id. The
investigator discovered Clayton in the van, barely alive, and called
2
Meeks was also indicted for capital murder, but the charge was later
dismissed. Gavin, 891 So. 2d at 928. At Gavin’s trial, Meeks testified that he,
his wife, their children, and Gavin drove from Meeks’s home in Chicago to
Chattanooga, Tennessee, so that Gavin could meet up with a woman that he
had met a month earlier in Alabama. Id. at 927. When the woman did not
show up at the arranged meeting place, Gavin asked Meeks to drive him to
Alabama in hopes of locating the woman. Id. Gavin and Meeks were stopped
at an intersection in Centre, Alabama, when Gavin exited Meeks’s vehicle and
approached Clayton’s van in the bank parking lot. Id. at 928. Meeks thought
that Gavin planned to ask Clayton for directions, but he witnessed Gavin shoot
Clayton. Id. Meeks fled the scene, returned to the motel, and he and his family
immediately left for Chicago. Id. Meeks was employed by the Illinois
Department of Corrections and, upon his return to Chicago, he discovered his
department issued gun was missing. Id. Meeks suspected that his gun was the
gun Gavin used to kill Clayton. Id. Meeks reported the gun missing, but he
did not mention that it might have been used in a crime. Id. After discussing
the incident with several friends, Meeks later contacted Alabama law
enforcement to report what he knew about Gavin’s crime. Id.USCA11 Case: 20-11271 Date Filed: 07/14/2022 Page: 5 of 53
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for an ambulance, but Clayton was pronounced dead upon arrival
at the hospital. Id. at 929. The investigator identified Gavin as the
person who shot at him. Id.Within minutes of the investigator’s encounter with Gavin,
other law enforcement officers arrived on the scene and searched
the woods. Id. Gavin was discovered in the woods and attempted
to flee, but he stopped when an officer fired a warning shot. Id.Without prompting from the officers, Gavin stated, “I hadn’t shot
anybody and I don’t have a gun.” Id. The gun was found several
days later near the woods, and ballistics confirmed that bullets
found in the victim and the van had been fired from the gun. Id. at
930. The jury found Gavin guilty on all counts.
B. The Penalty Phase
At the penalty phase before the jury, 3 the State offered three
aggravating circumstances: (1) that Gavin was previously
3
In Alabama, the trial court must conduct a separate sentencing hearing “as
soon as practicable after the defendant is convicted” to determine whether the
defendant should be sentenced to life imprisonment without parole or to
death. Ala. Code § 13A-5-45(a). During the sentencing hearing, the parties
may present evidence of the existence of any aggravating or mitigating
circumstances. Id. § 13A-5-45(c). Under Alabama law at the time of Gavin’s
trial, if the jury determined that one or more aggravating circumstances
existed but that they did not outweigh the mitigating circumstances, it was to
return an advisory verdict recommending life imprisonment without parole.
Id. § 13A-5-46(e)(2) (1999). But if the jury determined that one or more
aggravating circumstances outweighed the mitigating circumstances, it was to
return an advisory verdict recommending a death sentence. Id. § 13A-5-
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6 Opinion of the Court 20-11271
convicted of another felony involving the use or threat of violence
to a person (his prior Illinois murder conviction); (2) that Gavin
committed the murder during the commission of a robbery; and
(3) that he committed the murder while under a sentence of
imprisonment for another crime. 4 In support, the State called
46(e)(3). A death penalty recommendation required a vote of at least 10 of the
12 jurors. Id. § 13A-5-46(f).
4
At the time of Gavin’s sentencing, the following constituted statutory
aggravating circumstances in Alabama:
(1) The capital offense was committed by a person under
sentence of imprisonment;
(2) The defendant was previously convicted of another capital
offense or a felony involving the use or threat of violence to
the person;
(3) The defendant knowingly created a great risk of death to
many persons;
(4) The capital offense was committed while the defendant
was engaged or was an accomplice in the commission of, or an
attempt to commit, or flight after committing, or attempting
to commit, rape, robbery, burglary or kidnapping;
(5) The capital offense was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an escape
from custody;
(6) The capital offense was committed for pecuniary gain;
(7) The capital offense was committed to disrupt or hinder the
lawful exercise of any governmental function or the
enforcement of laws; or
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Gavin’s parole officer as a witness, who testified that Gavin was
released from prison for his 1982 Illinois murder conviction at the
end of December 1997 and was on parole when he murdered
Clayton.
Gavin called two witnesses during the penalty phase—
minister S.J. Johnson and Gavin’s mother.5
Johnson testified that he met Gavin approximately 20
months earlier, shortly after Gavin was arrested and requested that
someone from the church come and speak with him. Johnson had
visited Gavin weekly for about an hour each time for the past 20
months. Johnson explained that, initially, Gavin had “an attitude
that he was blaming everybody except [himself]” for his
circumstances and things that had happened. But as time went on,
Gavin “stopped blaming others so much and he began to see where
he should take some responsibility.” In Johnson’s opinion, Gavin
now accepted responsibility for his actions, had shown a desire “to
do God’s will,” and “was sincerely trying to make changes in his
life.” Johnson expressed that if Gavin were given life imprisonment
instead of a death sentence, Gavin had “the potential to cultivate a
deeper relationship with God and [Johnson] fe[lt] that there [was]
hope for [Gavin] if he’s given time and opportunity.” Johnson
(8) The capital offense was especially heinous, atrocious or
cruel compared to other capital offenses.
Ala. Code § 13A-5-49 (1999).
5
Counsel Smith handled the questioning of these witnesses.
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pleaded for the jury to show Gavin mercy. 6 Finally, Johnson
expressed his sympathy to Clayton’s family for their loss.
Gavin’s mother, Annette, testified that Gavin was the
second of eleven living children. She was a Jehovah’s witness, and
she raised Gavin with a religious foundation. She stated that Gavin
was always concerned about other people and concerned with
“what was fair.” And that “[h]e loves justice, he really does.” She
pleaded for mercy, asking the jury to spare Gavin’s life, explaining
that
I really feel . . . that knowing how he views things,
that he really has the ability to live as he should live
because he has taken up that course, you know,
because he had to, he had to see it, he sees it now.
And so if he’s given the opportunity, he could help
others. He could really be a great source of help to
others and to our Creator.
In closing argument, the State emphasized the details of the
1982 Illinois murder and that Gavin showed no mercy then or
when he committed the Alabama murder. The State maintained
6
In asking for mercy, Johnson relied on the Bible, reminding the jury that,
although the Old Testament stated, “an eye for an eye, tooth for a tooth, soul
for a soul,” there were many more examples of God’s mercy in the Bible.
Johnson also pointed out that “[w]e no longer live under the scriptures of the
Old Testament,” that “Christ’s example was the law of love and mercy,” and
that “as Christians we live under the law of Christ.”
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that the death penalty was the appropriate sentence for Gavin’s
actions.
Gavin’s counsel argued that the two murders, although
terrible and unforgiveable, did “not represent the sum total of
Keith Gavin’s life nor even the majority of it. They represent just
what they are. A few brief moments of anger that were expressed
in a terrible way.” He urged the jury to consider Gavin’s family
and the fact that his family still supported him during the trial, and
that Gavin requested to speak with a religious advisor after he was
arrested—factors which pointed to redeeming qualities in Gavin.
He then emphasized that death is irrevocable and urged the jury to
grant Gavin mercy.
Following deliberations, the jury returned a non-binding 10
to 2 advisory verdict, recommending the death penalty for the two
capital counts.7 Gavin, 891 So. 2d at 926–27.
7
At the time of Gavin’s trial, the jury’s sentencing recommendation was non-
binding on the trial court, but the trial court was required to “consider” the
recommendation when determining the appropriate sentence. See Ala. Code
§ 13A-5-47(e) (1999). In other words, Alabama vested “ultimate sentencing
authority” in the trial judge, provided the trial judge considered the jury’s
recommendation. Harris v. Alabama, 513 U.S. 504, 508–09 (1995). Alabama’s
sentencing scheme did not specify the weight the trial judge should give the
jury’s recommendation. Id.In 2017, Alabama amended its statutes to make the jury’s verdict
binding. See Ala. Code § 13A-5-46(e) (2018); see also Keaton v. State, case no.
CR-14-1570, __ So. 3d__, 2021 WL 5984951, at *6 n.2 (Ala. Ct. Crim. App.
2021) (“Effective April 11, 2017, §§ 13A-5-46 and -47, Ala. Code 1975, were
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At the separate sentencing hearing, the trial judge found the
three aggravating circumstances proffered by the State: (1) that the
murder was committed while Gavin was under a sentence of
imprisonment; (2) that Gavin was previously convicted of another
felony involving the use of violence to the person—the 1982 Illinois
murder; and (3) that “the capital offense was committed while the
defendant was engaged in the commission of or attempt to commit
robbery.” The court found that no statutory mitigating
amended by Act No. 2017-131, Alabama Acts 2017, to provide that the jury’s
sentencing verdict in a capital-murder trial is no longer a recommendation but,
instead, is binding upon the trial court.”).
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circumstances existed. 8 As for non-statutory mitigation,9 the trial
8
At the time of Gavin’s sentencing, statutory mitigating circumstances in
Alabama were as follows:
(1) The defendant has no significant history of prior criminal
activity;
(2) The capital offense was committed while the defendant
was under the influence of extreme mental or emotional
disturbance;
(3) The victim was a participant in the defendant’s conduct or
consented to it;
(4) The defendant was an accomplice in the capital offense
committed by another person and his participation was
relatively minor;
(5) The defendant acted under extreme duress or under the
substantial domination of another person;
(6) The capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the requirements
of law was substantially impaired; and
(7) The age of the defendant at the time of the crime.
Ala. Code § 13A-5-51 (1999).
9
Under Alabama law, non-statutory mitigating circumstances
shall include any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant
offers as a basis for a sentence of life imprisonment without
parole instead of death, and any other relevant mitigating
circumstance which the defendant offers as a basis for a
sentence of life imprisonment with parole instead of death.
Ala. Code § 13A-5-52.
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court noted that it had considered sentencing consultant John
David Sturman’s memorandum on behalf of Gavin.10 The trial
court explained that:
In that memorandum, the defendant’s mother is
reported to have described the defendant’s life as
influenced by or subject to a combination of drugs
and gang violence while living in a Chicago housing
project. The defendant’s mother also testified at the
sentence hearing conducted before the jury. The
defendant’s attorney has advised the Court, however,
that the defendant denies ever having a drug
problem. At the sentence hearing conducted before
the jury, the Court heard testimony of Reverend [S].J.
Johnson who spoke eloquently on behalf of the
defendant as a result of his frequent meetings with the
defendant over the many months of the defendant’s
incarceration. Reverend Johnson opines that the
defendant has concern and sympathy for the victim’s
family, and that the defendant is capable of a closer
relationship with God. This Court has considered all
matters presented by the defendant, but this Court
10
Sturman’s memorandum stated that Gavin spent the majority of his
childhood in the housing projects of Chicago. Many of Gavin’s siblings had
drug problems, and some had been arrested or incarcerated for unspecified
crimes. Gavin was raised in a nuclear family, grew up in the church, got along
well with his peers, and maintained stable employment prior to the Illinois
murder. Gavin’s mother denied any history of mental health issues on either
side of the family. She stated that the family was exposed to constant street
violence, drug activity, and gangs in the neighborhood.
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does not find any support for any non-statutory
mitigating circumstance.
Thus, the trial court determined that the aggravating
circumstances outweighed the non-existent mitigating
circumstances, adopted the jury’s recommendation, and sentenced
Gavin to death for each of the capital counts, to be followed by a
consecutive term of life imprisonment for the attempted murder
count.
On direct appeal, the Alabama Court of Criminal Appeals
affirmed Gavin’s conviction and sentence. Gavin, 891 So. 2d at 998.
The Alabama Supreme Court denied certiorari, Ex Parte Gavin,
891 So. 2d 998 (Ala. 2004), as did the United States Supreme Court,
Gavin v. Alabama, 543 U.S. 1123 (2005).
C. State Postconviction Proceedings
Subsequently, Gavin filed a state postconviction petition
under Alabama Rule of Criminal Procedure 32, arguing, as relevant
here, that (1) his trial attorneys were constitutionally ineffective
during the penalty phase for failing to obtain and present
readily-available mitigating evidence related to his background,
“childhood, upbringing, family, socio-economic status, or any
other particularized facts that would have humanized Mr. Gavin
for the jury”; and (2) the jury committed misconduct when it
engaged in premature penalty phase deliberations in violation of
Gavin’s constitutional right to a fair trial.
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The trial court summarily dismissed the premature jury
deliberation claim and held an evidentiary hearing on Gavin’s
ineffective-assistance claim. 11
Smith, one of Gavin’s trial counsels, was deceased at the
time of the evidentiary hearing, and Gavin did not call co-counsel
Ufford as a witness (although there is no indication that Ufford was
unavailable). Instead, Gavin submitted sworn affidavits from
Smith and Ufford that they filed in connection with Gavin’s post-
verdict motion for a new trial in 2000, in which Gavin made similar
allegations of ineffective assistance of counsel.
As to the mitigation investigation, Smith attested in his
affidavit as follows:
I initiated contact almost immediately with Lucia
Penland of the Alabama Prison Project (APP) to
obtain the services of the APP to investigate matters
involving mitigation. Due to her commitments in
other capital murder cases which were much further
along in the trial preparation process, Ms. Penland
was unable to commit a great deal of time to this
particular case in its early stages. When Ms. Penland
was finally able to travel from Montgomery to Centre
to meet with [Gavin], to discuss possible preparation
of a mitigation case, [Gavin] adamantly refused to
discuss mitigation matters, insisting on his innocence
11
The same judge who presided over Gavin’s trial and sentencing presided
over the Rule 32 proceeding.
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and the fact that he was not at the scene of the crime
when the shooting took place. He maintained this
posture throughout the entire preparation phase of
the case. In fact, Ms. Penland, while in Chicago on
other business during the summer prior to the trial of
the case, attempted to contact Defendant’s family for
purposes of preparation; they refused to speak with
her, apparently because [Gavin] had not authorized
them to speak with our defense team. Ultimately, as
appellate defense counsel is aware, [Gavin’s] mother
traveled from Chicago to testify in his behalf in the
sentencing portion of the trial, and we obtained the
testimony of a local minister with whom the
Defendant had established a relationship during his
incarceration in Cherokee County. The testimony is
a matter of record and I will not attempt to
characterize it. However, on more than one
occasion, [Gavin’s] mother summed up her feelings
by noting that it was a shame her son had no money
to retain a “real attorney.” 12
Gavin submitted an affidavit from Minister S.J. Johnson.
Johnson asserted that Gavin’s counsel first approached him to
testify three days before the start of the penalty phase. Counsel
asked only what Johnson’s “impression” of Gavin was and did not
12
Co-counsel Ufford stated simply that he “concur[red]” in Smith’s affidavit,
and that Smith’s affidavit was “an accurate statement of the facts learned and
the decision making process used and agreed upon by me during the time of
preparation for the trial.”
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prepare Johnson for testifying. This short five-minute meeting was
Johnson’s only meeting with counsel.
Gavin testified at the evidentiary hearing that he was born
and raised in the housing projects of Chicago and had 11 siblings
(one of whom was deceased). Gavin’s parents were married and
both parents lived in the home. His father was a disciplinarian and
“whooped” Gavin when he did something wrong but social
services was never involved with his family. Gavin described his
neighborhood as “pretty safe”—his mother would even leave the
doors unlocked—but it “started getting bad” when he was
“[a]round nine or 10 years old.” 13 Gavin denied being involved
with drugs but confirmed that there was drug activity in the
neighborhood.
Gavin dropped out of school in the eleventh grade, but later
earned his GED and took some college courses while incarcerated
for the Illinois murder. He was incarcerated in the Illinois state
prison system from 1982 until December 26, 1997, for murder, and
he was paroled at age 37 after serving 17 years of his 34-year
sentence.14 Upon his release, he returned home to Chicago to live
13
Gavin acknowledged during his testimony that he may have told Dr. King
in an interview that things in his neighborhood started changing and getting
bad when he was slightly older—around 11 or 12 years’ old.
14
Gavin was convicted in 1982 of the Illinois murder and paroled in December
1997, which is approximately 15 years’ imprisonment. Nevertheless, the
parties agree that Gavin served 17 years of his 34-year sentence for the Illinois
murder. Gavin’s presentence report indicates that he was arrested in March
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with his mother, but he could not find work. When he returned to
his mother’s home after his release, “the house was messy, and
dirty,” and in a state of disrepair. At the time, his sister Sharon, his
sister Geanetta, her husband, and their three children were also
living at his mother’s house. Gavin stated he was distressed and
depressed with the condition of his mother’s home, and he felt like
his siblings had let his mother down—he noted that a “couple” of
his siblings also had drug issues at that time.
Gavin confirmed that trial counsel hired an investigator to
work on his case and that the investigator “worked with” Gavin.
However, Gavin did not provide any testimony about the extent
of the investigation or his interactions with the investigators.
Lucia Penland, the mitigation specialist, testified that
Gavin’s counsel Smith contacted her in October 1998, and shortly
thereafter, formally retained her services to assist with Gavin’s
case. According to Penland, Smith did not provide her with any
background materials concerning Gavin’s life, and she requested
that he obtain Gavin’s prison records, but he did not. 15 Penland
1981 for the Illinois murder, and it is possible that Gavin received credit for
time served while pending trial in the Illinois case. In any event, we accept the
parties’ contention that he served 17 years of his 34-year sentence for Illinois
murder before being paroled.
15
On cross-examination, Penland admitted that John Sturman, another
mitigation specialist that she arranged to help with the case, managed to
obtain “some records,” including Gavin’s educational and prison records, but
Penland herself never saw those records.
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interviewed Gavin in April 1999. During that interview, Gavin
provided her with “basic background information, schools he went
to, where he lived, . . . whether he had had any medical
emergency-type injuries, illnesses, that sort of thing, just basic
information, and including information about his family.”
However, she admitted that Gavin was uncooperative, kept
insisting on his innocence, and she “had a difficult time in the initial
interview . . . with convincing him to give me any information.”
Because of Gavin’s prior prison sentence for the Illinois murder,
Penland spoke with Smith about obtaining an expert on the effects
of institutionalization, and Penland contacted Dr. Craig Haney,
who was an expert in that field, but Dr. Haney was unavailable at
the time of trial. Penland testified that Smith did not contact her
between May and September 1999 to check on her progress.
At some point between the April 1999 interview with Gavin
and September, Penland attempted to interview Gavin’s mother,
but she refused to speak with Penland, and the rest of Gavin’s
family were uncooperative as well. Penland sought the help of
fellow mitigation specialist John Sturman who was based in
Chicago. Sturman had slightly better luck with Gavin’s mother
and obtained an interview from her.
In September 1999, Smith informed Penland that Gavin’s
trial was set for November. Penland told Smith that more work
needed to be done, and she requested that Smith get another
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continuance. 16 According to Penland, Smith “was not willing to
ask for a continuance,” and “didn’t believe that he could get one”
because Smith’s most recent request for a continuance due to his
broken foot was denied. Approximately two weeks before trial,
Penland obtained Sturman’s reports and sent them to Smith, again
expressing her belief that, because of the family’s lack of
cooperation, there were potential mitigation leads that remained
unexplored and that Smith should seek a continuance. 17 Smith
16The record reflects that Smith had obtained at least two prior continuances.
17
Penland stated the following:
Bayne, I am forwarding on to you material from Mr. Sturman
in Chicago. There are issues that need to be pursued in this
case, including the atmosphere in which Mr. Gavin grew up,
the effects of his incarceration, effect of poverty, racism, etc.
Mr. Sturman said that during the time Mr. Gavin was growing
up and in the area of town where his family lived, there was a
great deal of violence, including the development of large
gangs, and serious gang activity. All of these issues along with
whatever is found in the family dynamics need to be
thoroughly explored.
I would like to urge you again to request a continuance, based
on the information we are developing, along with the lack of
cooperation we have encountered, and the time factor on my
part—having just this Monday finished with a trial on a prior
case—which has not allowed us to be further along than we
are at this time. It is not an unreasonable request under the
circumstances. We need to have time to not only complete
the preliminary work, but to engage some expertise to help
present to the jury, and the judge, the issues which go to
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20 Opinion of the Court 20-11271
responded that, although Gavin’s family seemed to be “coming
around and beginning to cooperate to some extent,” Gavin
remained unwilling to cooperate, and Smith did not believe that
another continuance would be granted based on statements from
the trial court. Penland admitted during the evidentiary hearing
that Smith did some of his own investigation work, and she was
unaware of the extent of his investigation.
Dr. Betty Paramore—a clinical counselor and expert
mitigation specialist hired by Gavin’s postconviction team to
develop a mitigation profile—testified to several risk factors and
positive (“protective”) factors she identified in Gavin’s life
following interviews with Gavin and his family. 18 She emphasized
that several of Gavin’s siblings had drug issues, were involved with
gangs, and had a history of incarceration. Dr. Paramore
mitigation. An adequate mitigation case can not be developed
otherwise.
18
The risk factors included “multi-generational family dysfunction”; large
family size; parental criminality (Gavin’s father was incarcerated for nine
months for robbery when Gavin was two years old); low-socioeconomic
status and poverty; Gavin’s exposure to domestic violence and physical abuse
as a child (family members reported Gavin’s father was “a strong
disciplinarian” that gave “whippings” with “extension cords, sticks, hoses, [his]
fist, and other items . . . within [his] reach”—although notably Gavin denied
any abuse as a child); Gavin’s exposure to race riots and racial tension in his
neighborhood following the assassination of Dr. Martin Luther King; and
exposure to violence, gang activity, and criminal activity. The protective
factors included that Gavin had “warm, supportive relationships with [his]
parents and other adults.”
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emphasized that, during Gavin’s incarceration in Illinois, Gavin
was the victim of gang violence, was stabbed many times, and
hospitalized.
Gavin also offered the deposition testimony of Dr. Craig
Haney, a social psychologist and professor of psychology. He
testified about the effects of institutionalization19 on individuals
generally, and on Gavin specifically. According to Haney,
institutionalization causes individuals to “not be able to function
adequately” in society because such individuals are accustomed to
a heavily structured, regulated environment, where institutions tell
them what to do, and once released, the individual has trouble
initiating behavior, making plans, and dealing with the freedoms of
society. Haney opined that because Gavin was only 22 and still in
fundamental stages of development when he entered the Illinois
prison system for the first murder, the effect of institutionalization
on him was “relatively powerful” and undermined his ability to
adjust positively to society once released. 20
19
Haney defined institutionalization as “the process of change that occurs in
people when they are placed in institutional . . . settings.” Institutionalization
is considered a “social phenomenon” and is not a recognized clinical diagnosis
in the Diagnostic and Statistical Manual (DSM).
20
Haney reviewed Gavin’s prison records from the Illinois prison system.
During Gavin’s 17 years in prison in Illinois, Gavin had only one major
disciplinary write-up for a shank being found in his possession, and his other
write-ups were for minor infractions, such as listening to his television too
loudly. Gavin was transferred 12 times during the 17-year period, and Dr.
Haney opined that each transfer increased Gavin’s risk of becoming
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22 Opinion of the Court 20-11271
Finally, Dr. Glen King testified as an expert witness in the
area of clinical and forensic psychology on behalf of the State.
Gavin reported to Dr. King that (1) he had no history of alcohol or
substance abuse issues; (2) “his parents were loving, devoted and
good parents”; (3) he denied being physically abused as a child—
although when pressed he acknowledged that his father’s discipline
“maybe bordered on that”; (4) his neighborhood “was relatively
safe,” especially during the first 12 years of his life—so safe, the
family left their door unlocked—but violence in the neighborhood
increased when Gavin was a teenager;21 (5) he told Dr. King that
there “wasn’t much gang violence” in the neighborhood and that
“he was not particularly afraid” of his neighborhood; (6) he
reported that his family was very close and denied being poor; and
(7) while in the Illinois prison system, he earned his GED and took
college courses and vocational training.
Following the evidentiary hearing, the Alabama
postconviction court denied Gavin’s Rule 32 ineffective-assistance
claim on the merits. The Rule 32 court found that counsel was not
“institutionalized.” However, Gavin reported that he requested to be
transferred each of those 12 times because “it broke up the time for him, [and]
made things go a lot faster.” The State’s expert testified that Gavin’s prison
records from Illinois revealed that he became “what you might describe
almost as a model prisoner and did extremely well.”
21
According to Dr. King, Gavin reported in his interview that “he was not
aware of too much violence occurring until he was probably about 16 or 17
when he reported that that was when the drugs started to get heavier in his
neighborhood.”
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20-11271 Opinion of the Court 23
deficient for failing to present additional mitigation evidence,
concluding that it was Gavin’s and his family’s fault “for failing or
refusing to cooperate with his trial attorneys and the mitigation
specialists.” Further, the court noted that much of the mitigation
information presented would have been unlikely to “humanize”
Gavin because it would have portrayed him “as the product of a
violent family from a violent, gang ridden, and drug infested
Chicago ghetto where the Defendant had previously committed a
murder. . . .”
The Alabama Court of Criminal Appeals (“CCA”) affirmed
the denial of Gavin’s petition. With regard to Gavin’s ineffective-
assistance claim, the CCA, relying on Smith’s affidavit from the
motion for new trial, emphasized that Smith hired Penland to assist
with mitigation almost immediately after taking the case, and that
the correspondence between Smith and Penland established that
she could not complete her investigation because Gavin and his
family were uncooperative. Based on these circumstances, the
CCA held that “we are unable to say that the investigative steps
taken by Gavin’s trial counsel were unreasonable, and the circuit
court did not err in denying this claim.”
As for prejudice, the CCA reweighed the mitigation
evidence from the Rule 32 hearing against that presented at trial
and determined that Gavin was not prejudiced by counsel’s failure
to present this evidence. Specifically, the CCA reasoned as follows:
The trial court found the existence of three
aggravating circumstances: (1) that the capital offense
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24 Opinion of the Court 20-11271
was committed while Gavin was under a sentence of
imprisonment; (2) that Gavin had previously been
convicted of another capital offense or a felony
involving the use or threat of violence to the person;
and (3) that the murder was committed during the
course of a robbery in the first degree. Additionally,
the trial court found that no statutory mitigating
circumstances existed and that there were no
nonstatutory mitigating circumstances. The
evidence presented at Gavin’s Rule 32 evidentiary
hearing was to a great extent centered around Gavin’s
childhood in Chicago and imprisonment and, as the
circuit court noted, likely would have been given very
little weight by the jury. Thus, we agree . . . that the
admission of this evidence would not have changed
the verdict in the penalty phase.
Accordingly, Gavin has failed to establish that he was
prejudiced by the alleged omission of the above
mitigating evidence. We agree with the circuit court
that this testimony would have been unlikely to have
humanized Gavin with his jury, and the circuit court
correctly denied this claim.
As for Gavin’s juror misconduct claim, the CCA denied the
claim on the merits, concluding that the claim was based on the
admission of juror testimony, which would have been inadmissible
under Alabama Rule of Evidence 606(b).
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20-11271 Opinion of the Court 25
D. Federal § 2254 Habeas Proceeding
Following the denial of state postconviction relief, Gavin
filed the underlying § 2254 federal habeas petition, which the
district court granted in part and denied in part. The district court
held that counsel’s performance related to the penalty phase was
deficient and prejudicial under Strickland, and that the state court’s
conclusion to the contrary was an objectively unreasonable
application of Strickland. Gavin v. Dunn, 449 F. Supp. 3d 1174,
1245–49 (N.D. Ala. 2020).
As to the question of performance, the district court
concluded that “[c]ounsel were totally unprepared for the penalty
phase.” Id. at 1245. The court emphasized that “[c]ounsel’s lack of
preparation [could not] be excused by the initial failure of Mr.
Gavin and his family to cooperate with counsel or Ms. Penland,
because Mr. Sturman was able to get mitigating evidence from
[Gavin’s mother] prior to trial.” Id. The court noted that, although
it had “no insight into counsel’s decision not to elicit testimony
concerning Mr. Gavin’s background from [his mother at trial],”
counsel’s decision to not do so was “inexplicable.” Id. at 1245–46.
The district court also concluded that Sturman’s report “should
have raised red flags” for counsel, and that “counsel’s failure to
follow up on [the red flags] was deficient under Strickland.” Id. at
1246. Accordingly, the court held that
[t]rial counsel did not conduct an adequate
background investigation, did not pursue all
reasonably available mitigating evidence, and did not
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26 Opinion of the Court 20-11271
make a reasonable effort to present the mitigating
evidence they had. Mr. Gavin has clearly established
that counsel were deficient under Strickland. Thus, it
follows that the [CCA’s] finding to the contrary is
objectively unreasonable.
Id. at 1246–47.
Turning to the question of prejudice, the district court
explained that
[i]f counsel had presented the evidence Mr. Gavin
produced at the Rule 32 hearing, the jury would have
heard evidence that Mr. Gavin’s parents’ families had
histories of drug abuse, alcoholism, . . . and
incarceration; Mr. Gavin’s siblings were gang
members with histories of drug use, violence, and
incarceration; Mr. Gavin’s father Willie, Sr., was
physically abusive . . .; and that Mr. Gavin grew up in
a gang-infested housing project in Chicago, living in
overcrowded houses that were in poor condition,
where he was surrounded by drug activity, crime,
violence, and riots.
Id. at 1247–48. The district court noted that the CCA determined
that “this evidence would ‘likely have been given very little weight
by the jury,’” but the district court disagreed with that finding,
citing Supreme Court cases and cases from this Court in which
prejudice was found due to the omission of similar mitigating
evidence. Id. at 1248–49. Accordingly, the district court held that
because of the value placed on this type of mitigation evidence in
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20-11271 Opinion of the Court 27
other cases, the CCA’s “contrary finding is an unreasonable
application of Strickland.” Id. at 1249.
With regard to the juror misconduct claim, the district court
held that the CCA’s denial of Gavin’s premature jury deliberation
claim was neither contrary to, nor an unreasonable application of,
clearly established federal law because Gavin failed to show that
extrinsic evidence was injected into the jury deliberations and the
evidence Gavin offered was “nothing more than prohibited
testimony about the debate and deliberations of the jury.” Id. at
1203–06. The state of Alabama’s appeal and Gavin’s cross-appeal
followed.
II. Standard of Review
We review the district court’s ruling on a § 2254 habeas
petition de novo. Morrow v. Warden, Ga. Diagnostic Prison, 886
F.3d 1138, 1146 (11th Cir. 2018). Yet the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) also governs this
appeal, which establishes a “highly deferential standard for
evaluating state-court rulings, [and] demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (quoting Woodford v. Viscotti, 537 U.S.
19, 24 (2002) (per curiam)). Thus, under AEDPA, a federal court’s
review of a final state habeas decision is greatly circumscribed, and
a federal habeas court cannot grant a state petitioner habeas relief
on any claim that was adjudicated on the merits in state court
unless the state court’s adjudication of the claim:
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28 Opinion of the Court 20-11271
(1) resulted in a decision that 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) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2).
“[C]learly established Federal law” means “the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000).
For a state-court decision to be “contrary to” clearly
established federal law, the state court must have “applie[d] a rule
different from the governing law set forth in [Supreme Court]
cases, or if it decides a case differently than [the Supreme Court]
ha[s] done on a set of materially indistinguishable facts.” Bell v.
Cone, 535 U.S. 685, 694 (2002).
An “unreasonable application” of federal law occurs “if the
state court correctly identifies the governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies it to the
facts of the particular case.” Id. “[A]n unreasonable application of
federal law is different from an incorrect application of federal
law.” Williams, 529 U.S. at 410 (emphasis in original). “Indeed, ‘a
federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant
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20-11271 Opinion of the Court 29
state-court decision applied clearly established federal law
erroneously or incorrectly.’” Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Williams, 529 U.S. at 411). Rather, the state court’s
application of federal law “must be ‘objectively unreasonable.’
This distinction creates ‘a substantially higher threshold’ for
obtaining relief than de novo review.” Id. (quotations omitted);
White v. Woodall, 572 U.S. 415, 419 (2014) (explaining that, for
purposes of § 2254(d)(1), the state court’s application of clearly
established federal law must be “objectively unreasonable, not
merely wrong; even clear error will not suffice” (quotation
omitted)). “[W]hen the last state court to decide a prisoner’s
federal claim explains its decision on the merits in a reasoned
opinion . . . a federal habeas court simply reviews the specific
reasons given by the state court and defers to those reasons if they
are reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
A state court’s decision is reasonable “so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]ven a strong
case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Id. at 102. Rather, a 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.” Id. at 103.
In addition, “a determination of a factual issue made by a
State court shall be presumed to be correct,” and the petitioner
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30 Opinion of the Court 20-11271
bears “the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). With these
principles in mind, we turn to the claims at issue in this appeal.
III. Discussion
A. Ineffective Assistance During the Penalty Phase
Alabama argues that the state court’s determinations that
counsel’s mitigation efforts were reasonable and that Gavin did not
suffer any prejudice was not an objectively unreasonable
application of Strickland, and that the district court erred in not
deferring to the state court’s decision as required by § 2254.
A petitioner alleging that he received ineffective assistance
of counsel in violation of the Sixth Amendment must establish two
elements. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“First, the defendant must show that counsel’s performance was
deficient.” Id. Review of counsel’s actions is “highly deferential”
and “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. Additionally, “every effort [must] be made
to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. In other
words, the petitioner must show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687.
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20-11271 Opinion of the Court 31
“Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. Prejudice occurs when
there is a reasonable probability that “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. In the capital sentence context, “the
question is whether there is a reasonable probability that, absent
the errors, the sentencer—including an appellate court, to the
extent it independently reweighs evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695. “The likelihood
of a different result must be substantial, not just conceivable.”
Harrington, 562 U.S. at 112. In determining whether there is a
reasonable probability of a different result, a court must “consider
‘the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas
proceeding’—and ‘reweig[h] it against the evidence in
aggravation.’” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting
Williams, 529 U.S. at 397–98).
“[B]ecause the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009); see also Renico, 559 U.S. at 776 (“Because
AEDPA authorizes federal courts to grant relief only when state
courts act unreasonably, it follows that ‘[t]he more general the rule’
at issue—and thus the greater the potential for reasoned
disagreement among fair-minded judges—‘the more leeway [state]
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32 Opinion of the Court 20-11271
courts have in reaching outcomes in case-by-case determinations.’”
(quoting Yarborough, 541 U.S. at 664)).
Importantly, “whether defense counsel’s performance fell
below Strickland’s standard” is not the question before a federal
habeas court reviewing a state court’s decision under § 2254.
Harrington, 562 U.S. at 101.
Were that the inquiry, the analysis would be no
different than if, for example, this Court were
adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that
the two questions are different . . . [for] [a] state court
must be granted a deference and latitude that are not
in operation when the case involves review under the
Strickland standard itself.
Id. Accordingly, where, as here, Ҥ 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. at 105 (emphasis added).
Consequently, “[f]ederal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d).” Id.
(i) Deficient Performance
With regard to the deficient performance prong, the CCA
determined that Smith hired Penland to assist with mitigation
almost immediately after taking the case, and that the
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20-11271 Opinion of the Court 33
correspondence between Smith and Penland established that she
could not complete her investigation because Gavin and his family
were uncooperative. Based on these circumstances, the CCA held
that “we are unable to say that the investigative steps taken by
Gavin’s trial counsel were unreasonable, and the circuit court did
not err in denying this claim.” The district court, however,
concluded that the CCA’s finding was an objectively unreasonable
application of Strickland and its progeny, and that Gavin had
established deficient performance. Gavin, 449 F. Supp. 3d at 1245–
47.
As explained below, the district court erred in its
determination. The Supreme Court has clearly, and repeatedly,
held that counsel’s actions must be afforded a presumption of
adequacy and “that the burden to ‘show that counsel’s
performance was deficient’ rests squarely on the defendant.” Burt
v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland, 466 U.S. at
687). Thus, Gavin must have come forward with sufficient
evidence to overcome the presumption, and “the absence of
evidence cannot overcome the ‘strong presumption that counsel’s
conduct [fell] within the wide range of reasonable professional
assistance.’” Id. at 23 (alterations in original) (quoting Strickland,
466 U.S. at 689). “In fact, even if there is reason to think that
counsel’s conduct was far from exemplary, a court still may not
grant relief if [t]he record does not reveal that counsel took an
approach that no competent lawyer would have chosen.” Dunn v.
Reeves, 141 S. Ct. 2405, 2410 (2021) (quotation omitted). Gavin has
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34 Opinion of the Court 20-11271
not shown that the state court’s determination that counsel’s
performance was not unreasonable was contrary to, or an
unreasonable application of, Strickland.
In this case, there is an absence of evidence regarding the full
picture of counsel’s investigation in preparation for the penalty
phase. As an initial matter, we do not have the benefit of counsel’s
testimony from the evidentiary hearing—Smith was deceased at
the time of the Rule 32 hearing and Gavin did not call co-counsel
Ufford to testify. We agree that counsel’s testimony is not always
necessary. See Reeves, 141 S. Ct. at 2411–13 (explaining that the
defendant’s failure to call his attorneys to testify can be, but is not
per se, fatal to an ineffective-assistance claim). The petitioner can
establish counsel’s deficient performance in other ways. And in
Gavin’s case, he submitted declarations from both counsel that
they had submitted in connection with Gavin’s motion for a new
trial in 2000, affidavits from various individuals, and testimony
from several witnesses at the evidentiary hearing, including the
mitigation specialist that his counsel had hired to help prepare for
the penalty phase.
But the record developed by Gavin does not show that the
state court’s determination that his counsel’s performance was not
unreasonable “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at
103. Rather, the record shows that Gavin’s counsel did, in fact,
prepare for the penalty phase. Smith hired mitigation specialist
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20-11271 Opinion of the Court 35
Penland shortly after his appointment to Gavin’s case to help
prepare for mitigation. Gavin and his family were consistently
uncooperative leading up to the penalty phase. Penland admitted
that Smith engaged in his own independent investigation, and she
had no knowledge of the details of his investigation. The record
corroborates that Smith conducted his own independent
investigation. For instance, he hired Dennis Scott, a private
investigator; requested and obtained additional funding for Scott’s
services; and had Scott sit at counsel’s table throughout the voir
dire and trial proceedings—a clear indicator that Scott played a
pivotal role in the defense’s preparation. Yet, the record contains
no information related to Scott’s investigation or counsel Smith’s
independent investigative efforts. In other words, the record is
incomplete concerning Gavin’s counsel’s investigation.
“Strickland specifically commands that a court must indulge
[the] strong presumption that counsel made all significant decisions
in the exercise of reasonable professional judgment.” Pinholster,
563 U.S. at 196 (quotation omitted). An incomplete or ambiguous
record concerning counsel’s performance—like the record here—
is insufficient to overcome the presumption of reasonable
performance.22 Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir.
22
Contrary to Gavin’s argument in his brief and at oral argument, we do not
hold that the record must contain testimony from counsel to establish
deficient performance nor do we hold that there is a deceased-trial-counsel
exception to Strickland. We merely hold, consistent with Supreme Court
precedent, that (1) courts are required to presume that counsel acted
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36 Opinion of the Court 20-11271
2005) (“Because [counsel] passed away before the Rule 32 hearing,
we have no evidence of what he did to prepare for the penalty
phase of [the defendant’s] trial. In a situation like this, we will
presume the attorney did what he should have done, and that he
exercised reasonable professional judgment.” (quotation and
footnote omitted)). Accordingly, the state court’s determination
that, given the circumstances here, it could not conclude “that the
investigative steps taken by Gavin’s trial counsel were
unreasonable” was not an objectively unreasonable application of
reasonably, (2) the petitioner bears the burden of overcoming that
presumption, and (3) an incomplete or ambiguous record is insufficient to
overcome the presumption of reasonableness to which counsel is entitled.
Although Smith was deceased at the time of Gavin’s Rule 32 evidentiary
hearing, there were other ways in which Gavin could have presented a
complete picture of counsel’s performance. For instance, Gavin could have
called co-counsel Ufford, but he did not. Gavin also could have presented
evidence related to the efforts undertaken by private investigator Scott—who
it is clear from the record played a significant role in Gavin’s defense—but he
did not. Or Gavin could have presented testimony or affidavits from his
mother or any of his eleven siblings detailing what interactions, if any, they
had with Gavin’s trial counsel, Penland, or Sturman, but again he did not. In
short, despite Smith’s unavailability, there were numerous other ways in
which Gavin could have met his burden of proving the full extent—or lack
thereof—of counsel’s investigation, but he failed to do so. We note that the
aforementioned evidence provides just a few examples of the types of
evidence a petitioner can present in support of his ineffective-assistance claim;
it is not meant to be a comprehensive list. Nor do we mean to suggest that if
a petitioner produces all of this evidence he will necessarily prevail.
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20-11271 Opinion of the Court 37
Strickland, and the district court erred in holding otherwise.23
Gavin, 449 F. Supp. 3d at 1244.
We note that, although the district court cited AEDPA and
its deferential principles in its opinion, it did not follow them when
considering Gavin’s ineffective-assistance claim. Rather than
evaluating whether the CCA’s determination that counsel’s
performance was not deficient was contrary to, or an objectively
unreasonable application of, Strickland—as required by the text of
23
Gavin maintains that we have “relied on similar facts” as those present in his
case to find deficient performance in Evans v. Sec’y, Dep’t of Corr. (“Evans
I”), 681 F.3d 1241 (11th Cir. 2012); Maples v. Comm’r, Ala. Dep’t of Corr., 729
F. App’x 817 (11th Cir. 2018); Cunningham v. Zant, 928 F.2d 1006 (11th Cir.
1991); and Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985). His reliance on those
cases is misplaced. The Evans decision he cites was vacated upon our decision
to grant rehearing en banc, and on rehearing we did not address the deficiency
prong. See Evans v. Sec’y, Dep’t of Corr. (“Evans II”), 703 F.3d 1316, 1325–26
(11th Cir. 2013) (en banc). Maples is an unpublished, non-binding authority
that is fully distinguishable because the deferential principles of AEDPA did
not apply as the state court based its factual conclusions on the wrong Rule 32
petition and “conducted a splintered and fragmented prejudice analysis”
which failed to consider the combined prejudicial effects of all of the alleged
errors. 729 F. App’x at 821–23. And finally, both Cunningham and Blake are
pre-AEDPA cases involving plenary review of ineffective-assistance claims,
and not the deferential framework of AEDPA that we are required to follow
now. See Cunningham, 928 F.2d at 1016; Blake, 758 F.2d at 533; see also
Hardwick v. Sec’y, Fla. Dep’t of Corr., 803 F.3d 541, 550 (11th Cir. 2015)
(“Under pre-AEDPA law . . . a federal habeas court decide[d] questions such
as whether habeas relief [was] warranted or whether counsel rendered
ineffective assistance—i.e., pure questions of law and mixed questions of law
and fact—independently of all prior adjudications.”).
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38 Opinion of the Court 20-11271
§ 2254(d)—the district court turned the inquiry on its head and
determined that because in its view “Gavin clearly established that
counsel were deficient under Strickland,” it followed necessarily
that the CCA’s “finding to the contrary [was] objectively
unreasonable.” Gavin, 449 F. Supp. 3d at 1246–47. In short, the
district court failed to “guard against the danger of equating
unreasonableness under Strickland with unreasonableness under
§ 2254(d),” and fell into the trap the Supreme Court warned of in
Harrington. See Harrington, 562 U.S. at 105.
To be clear, the Strickland inquiry and the § 2254(d) inquiry
are distinct inquiries. Id. at 101. For purposes of § 2254(d), the state
court’s application of clearly established federal law “must be
objectively unreasonable, not merely wrong; even clear error will
not suffice.” White, 572 U.S. at 419 (quotation omitted); Renico,
559 U.S. at 773; see also Hosley v. Warden, Ga. Diagnostic Prison,
694 F.3d 1230, 1257 (11th Cir. 2012) (explaining that AEDPA
“preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state court’s
decision conflicts with th[e] [Supreme] Court’s precedents. It goes
no farther.” (quotation omitted)). The district court erred in
examining anew whether counsel’s performance fell below
Strickland ’s reasonableness standard and then concluding that
because—in the district court’s view—counsel’s performance fell
below that standard, the state court’s determination to the contrary
was an objectively unreasonable application of Strickland.
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20-11271 Opinion of the Court 39
(ii) Prejudice
Gavin also failed to demonstrate that the state court’s
determination that he did not satisfy the prejudice prong was an
unreasonable application of Strickland. The district court
unreasonably rejected the CCA’s finding that the mitigation
evidence would have been given little weight by the jury, based
solely on the fact that the Supreme Court had placed value on
similar types of mitigation evidence in other cases. As explained
previously, in assessing prejudice under Strickland in a capital case,
“the question is whether there is a reasonable probability that,
absent the errors, the sentencer—including an appellate court, to
the extent it independently reweighs evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.”24 Strickland, 466 U.S. at 695.
24
Gavin’s argument that the state court’s decision should not receive AEDPA
deference because it applied the wrong standard when assessing prejudice
lacks merit. In support, he points to the CCA’s statement that the omitted
mitigation evidence would not have changed the verdict and the fact that the
CCA did not mention reasonable probability of a different outcome in its
holding. Gavin’s argument is incorrect. The CCA explained and applied the
proper prejudice analysis, consistent with the standard in Strickland. For
instance, the CCA explained that “[w]hen claims of ineffective assistance of
counsel involve the penalty phase of a capital murder trial the focus is on
whether the sentencer would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death,” which is the test set
forth by the Supreme Court. Strickland, 466 U.S. at 695. It then applied that
test, reweighing the totality of the mitigating evidence against the aggravating
circumstances in Gavin’s case. Further confirmation that the CCA applied the
Strickland prejudice standard is that the CCA cited Wiggins v. Smith, 539 U.S.
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40 Opinion of the Court 20-11271
Given that the jury recommended a sentence of death by the
narrowest possible vote under Alabama law, 10 to 2, Gavin “need
establish only ‘a reasonable probability that at least one juror
would have struck a different balance’ between life and death.”
Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248, 1270 (11th
Cir. 2020) (quoting Wiggins, 539 U.S. at 537); see also n.7, supra
(discussing Alabama’s capital sentencing scheme and that a
recommendation of death requires the vote of at least ten jurors).
It was reasonable for the CCA to conclude that counsel’s
failure to present the mitigation evidence in question was not
prejudicial. In assessing the reasonable probability of a different
result, the state court’s task was to determine whether there was a
substantial likelihood that the outcome would have been different
by weighing the aggravating evidence and totality of the mitigating
evidence—both that adduced at trial and during the habeas
proceeding. Porter, 558 U.S. at 41; see also Harrington, 562 U.S. at
112 (“The likelihood of a different result must be substantial, not
just conceivable.”). At Gavin’s sentencing, the trial court
concluded that there were no statutory mitigating factors or non-
statutory mitigating circumstances present. Thus, the question for
the CCA was whether the non-statutory mitigation evidence
presented in the postconviction proceedings would have
outweighed the following aggravating factors: (1) that Gavin was
510 (2003), and its own decision in Washington v. State, 95 So. 3d 26 (Ala. Ct.
Crim. App. 2012), both of which applied Strickland ’s standards for assessing
prejudice.
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20-11271 Opinion of the Court 41
previously convicted of another felony involving the use or threat
of violence to a person (his prior murder conviction); (2) that Gavin
committed the murder during the commission of a robbery; and
(3) that he committed the murder while under a sentence of
imprisonment for another crime.
At his Rule 32 hearing before the state postconviction court,
Gavin presented non-statutory mitigation evidence that largely
centered on his childhood and the effects of his previous
imprisonment in Illinois. This evidence established that he grew
up “in the projects in Chicago,” and he was exposed to gang
violence and drug activity in the neighborhood and from his
siblings. His father was a strong disciplinarian and whipped the
children, which Gavin stated may have in hindsight amounted to
physical abuse, and there was some testimony that his father
abused his mother. 25 Nevertheless, there was also evidence that
25
Gavin argues that the state court unreasonably discounted the evidence of
his childhood abuse because of his age and its remoteness in time to the crimes
in contravention of Porter. Gavin misinterprets Porter, in which the Supreme
Court held that it was “unreasonable to discount to irrelevance the evidence
of [the defendant’s] abusive childhood” even though he was 54 years old at the
time of the trial. 558 U.S. at 37, 43. Contrary to Gavin’s argument, Porter did
not announce a broad principle that courts may not consider age of the
defendant as a factor in assessing the weight to give mitigation evidence. And,
in Gavin’s case, the CCA did not discount the minimal evidence of childhood
abuse to “irrelevance” but instead determined it was entitled to little weight,
which was not contrary to, or an unreasonable application of, clearly
established federal law.
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42 Opinion of the Court 20-11271
his family was close, loving, and supportive. And the testimony
concerning the effects of his previous imprisonment for murder
was conflicting at best. For instance, Gavin’s expert witness
testified that Gavin’s prior incarceration undermined his ability to
adjust positively to society; that he was transferred twelve times
due to safety concerns, with each transfer increasing the risk of
institutionalization; and that the Illinois prison system failed Gavin
by not offering him various services and vocational training. On
the other hand, the State’s expert testified that institutionalization
is not a scientifically recognized condition and that Gavin’s prison
records indicated he was a model prisoner; that Gavin reported that
he requested the transfers to break “up the time”; and that Gavin
received his GED and took various college and vocational courses
Moreover, the mitigating evidence in Porter was significantly more
compelling than that presented in Gavin’s case. For instance, in Porter, the
jury never heard about (1) his “heroic military service in two of the most
critical—and horrific—battles of the Korean War”; (2) his mental health
struggles following the war; (3) his history of childhood abuse—including that
his father beat his mother routinely (once so severely that she had to go to the
hospital and suffered a miscarriage) and also was violent with the children,
especially Porter, and that his father shot a gun at him for coming home late;
(4) that Porter was in special education classes and left school at the age of 12
or 13; and (5) that he suffered from brain damage that could result in
“impulsive, violent behavior.” 558 U.S. at 33–37, 41. The Supreme Court
reasoned that had the jury heard this information there was a reasonable
probability that the jury and the sentencing judge would have struck a
different balance, particularly because as to one of the murders there was one
aggravating factor—that the murder was committed in a cold, calculated, and
premeditated manner—that tipped the scales in favor of death.
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20-11271 Opinion of the Court 43
while in prison. The Rule 32 postconviction court concluded that
the mitigation evidence in question would have been unlikely to
“humanize” Gavin because it would have portrayed him “as the
product of a violent family from a violent, gang ridden, and drug
infested Chicago ghetto where the Defendant had previously
committed a murder. . . . [and] would have necessarily emphasized
[Gavin’s] violent history.” The CCA agreed that the admission of
this evidence “would have been unlikely to have humanized Gavin
with [the] jury” and would have been entitled to little weight. In
other words, the non-statutory mitigation evidence Gavin
presented could have been a double-edged sword.
It was not unreasonable for the state court to conclude that
there was not a substantial likelihood that the jury would have
concluded that the non-statutory mitigation evidence—which was
of limited value and could have been a double-edged sword—
would have outweighed the three significant statutory aggravating
factors present in this case. See, e.g., Jenkins, 963 F.3d at 1271–73
(holding that state court did not unreasonably apply Strickland
when it concluded that similar mitigating evidence—some of
which was “a double-edged sword”—did not outweigh the
significant aggravating factors); Jones v. Sec’y, Fla. Dep’t of Corr.,
834 F.3d 1299, 1312–1315 (11th Cir. 2016) (holding that state court’s
determination that the petitioner failed to demonstrate prejudice
was reasonable where the mitigating evidence was of limited value
and there were significant aggravating factors); Evans v. Sec’y,
Dep’t of Corr., 703 F.3d 1316, 1327 (11th Cir. 2013) (en banc)
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44 Opinion of the Court 20-11271
(holding that state court reasonably applied Strickland when it
concluded that the petitioner failed to establish prejudice where the
mitigation evidence was a double-edged sword). Gavin failed to
show that the state court’s determination that he failed to satisfy
Strickland ’s prejudice prong “was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103.
In concluding that the state court’s prejudice determination
was based on an unreasonable application of Strickland, the district
court simply analogized Gavin’s case to cases in which the
Supreme Court and this Court had found similar types of
mitigation evidence sufficient to justify relief under Strickland,
without accounting for any procedural or factual differences
between Gavin’s case and those cases. But the prejudice inquiry
under Strickland involves a case-by-case inquiry—simply because
prejudice was found after considering similar omitted mitigating
evidence in one case is not dispositive of whether prejudice
necessarily exists in another.
We also note that in several of the cases on which Gavin
relied—Wiggins, Rompilla, and Williams—AEPDA deference did
not apply to the prejudice prong. See Wiggins, 539 U.S. at 534
(explaining that because the state court never addressed the
prejudice prong, the Supreme Court’s “review [was] not
circumscribed by a state court conclusion with respect to
prejudice”); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (reviewing
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20-11271 Opinion of the Court 45
the prejudice prong de novo because the state court “never reached
the issue of prejudice”); Williams, 529 U.S. at 391, 395, 398; see also
Pinholster, 563 U.S. at 202 (explaining that it “did not apply AEDPA
deference to the question of prejudice in [Williams and
Rompilla]”). Thus, as the Supreme Court has cautioned, because
it “did not apply AEDPA deference to the question of prejudice in
those cases,” they “offer no guidance with respect to whether a
state court has unreasonably determined that prejudice is
lacking”—which is the question we must answer in this case.
Pinholster, 563 U.S. at 202 (emphasis in original).
Furthermore, the mitigation evidence in Wiggins was far
more compelling than that presented in Gavin’s case. For instance,
the omitted mitigation evidence in Wiggins indicated that
Wiggins’s mother was an alcoholic who frequently left the children
at home alone for days, forcing them to beg for food, eat paint chips
and garbage; Wiggins’s mother was abusive and beat the children;
she also had sex with men in the bed next to her children while they
slept; Wiggins was placed in foster care where he suffered physical
abuse, sexual molestation, and rape; Wiggins ran away from his
foster home at 16 and was homeless living on the streets; and he
had diminished mental capacity. 539 U.S. at 516–17, 535. The
Supreme Court emphasized on de novo review that there was an
absence of aggravating factors in Wiggins’s background, and thus,
there was a reasonable probability that, if the jury had heard all of
this compelling mitigation evidence, it would have returned a
different sentence. Id. at 537–38. Unlike Wiggins, the mitigation
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46 Opinion of the Court 20-11271
evidence in Gavin’s case is far less compelling, and he has three
significant aggravating statutory factors.
Similarly, the mitigation evidence uncovered in Rompilla—
that Rompilla grew up in a very abusive environment (his mother
drank during the pregnancy, his parents fought each other
violently, his father beat his mother, his mother stabbed his father
on at least one occasion, his father beat Rompilla with hands, fists,
leather straps, belts, and sticks, there were “no expressions of
parental love, affection or approval,” his father locked Rompilla
and a sibling in a small wire dog pen that was filthy and filled with
dog excrement); Rompilla was not allowed to have friends or talk
on the phone; his childhood home had no heat or indoor plumbing;
he and his siblings were not given appropriate clothing; that
Rompilla had alcohol issues, schizophrenia and other disorders;
and that “Rompilla’s IQ was in the mentally retarded range”—was
much more powerful than the mitigation evidence present in
Gavin’s case. 545 U.S. at 391–93.
In short, the balance of aggravating and mitigating factors is
significantly different in Gavin’s case than in the precedents he
cites. And no Supreme Court precedent applying AEDPA to state-
court prejudice determinations compels a different result. We
conclude that the CCA’s determination that Gavin failed to
establish prejudice “was not so obviously wrong as to be beyond
any possibility of fairminded disagreement” and the district court
“exceeded its authority” in rejecting the state court’s
determination. Shinn v. Kayer, 141 S. Ct. 517, 526 (2020)
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20-11271 Opinion of the Court 47
(quotation omitted). Accordingly, we reverse the district court’s
decision.
B. Juror Misconduct
In his cross-appeal, Gavin argues that we should affirm the
district court’s decision granting him a new penalty phase because
the jury conducted premature penalty-phase deliberations, in
violation of his Sixth and Fourteenth Amendment right to a fair
trial by an impartial jury. Gavin asserts that the jury voted 10-2 to
sentence him to death after the guilt phase but before the penalty
phase. In support of this claim, Gavin argued in his habeas petition
that the jury foreman informed postconviction counsel that, during
the guilt phase deliberations, one of the jurors stated that “if [they]
thought that he would vote differently because he and [Gavin]
were both black, he wanted them to know that he was going to
vote guilty and in favor of the death penalty.” Each of the jurors
then wrote down their votes on a piece of paper for both guilt and
innocence—the vote was unanimous in favor of guilt and 10 to 2
in favor of death (which was the same vote following the penalty
phase).
The CCA denied this claim, concluding that it was based on
inadmissible juror testimony about the internal deliberative
process, citing Alabama Rule of Evidence 606(b). The district court
denied federal habeas relief on this claim, concluding that the
CCA’s decision was not contrary to, or an unreasonable application
of, federal law. We agree.
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48 Opinion of the Court 20-11271
The Sixth and Fourteenth Amendments guarantee every
criminal defendant the right to a fair trial by an impartial jury. Neb.
Press Ass’n v. Stuart, 427 U.S. 539, 551 (1976). Thus, the Supreme
Court has held that a juror who will automatically vote for the
death penalty in every case regardless of “the facts or the trial
court’s instructions of law” may be challenged for cause, and, if
“one such juror is empaneled and the death sentence is imposed,
the State is disentitled to execute the sentence.” Morgan v. Illinois,
504 U.S. 719, 726, 729 (1992). Gavin argues that in his case “ten
jurors” violated Morgan. However, Gavin’s case does not involve
the type of juror at issue in Morgan—one who would
automatically vote for the death penalty regardless of the evidence
or the jury instructions. The jury’s premature penalty phase vote
did not reflect any agreement or statement among the jurors that
no matter what the penalty phase evidence showed that they
would automatically vote for the death penalty. Thus, to the
extent that Gavin relies on Morgan, it does not help him.
Rather, the gravamen of Gavin’s claim is that an irregularity
occurred during the juror deliberations—the jurors engaged in
premature deliberations before the penalty phase—that violated
his constitutional right to a fair trial. Gavin, who bears the burden
of proving his claim, seeks to present evidence from the jury
foreman in support of this claim. Alabama Rule of Evidence 606(b)
(the no-impeachment rule) provides that “a juror may not testify
in impeachment of the verdict . . . as to any matter or statement
occurring during the course of the jury’s deliberations or to the
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20-11271 Opinion of the Court 49
effect of anything upon that or any other juror’s mind or emotions
as influencing the” juror’s decision. Ala. Evid. R. 606(b). “Nor may
a juror’s affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded
from testifying be received for these purposes.” Id.However, the rule provides that “a juror may testify on the
question [of] whether extraneous prejudicial information was
properly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror.” Id.26
Additionally, the Supreme Court has held that the no-
impeachment rule must yield to juror testimony about racial
animus in jury deliberations. See Pena-Rodriguez v. Colorado, 137
S. Ct. 855, 869 (2017) (analyzing Fed. R. Evid. 606(b)). 27 However,
outside of these narrow exceptions, the Supreme Court has
rejected attempts to circumvent the no-impeachment rule
embodied in Federal Rule 606(b) (and by extension its state
26
Alabama Rule 606(b) is virtually identical to its federal counterpart Federal
Rule of Evidence 606(b), which also provides that a juror may testify to
extraneous prejudicial information or outside influences on jury. See Fed. R.
Evid. 606(b).
27
We acknowledge that Pena-Rodriguez was decided after the CCA issued its
decision in 2014, and it is not retroactively applicable to cases on collateral
review. Tharpe v. Warden, 898 F.3d 1342, 1346 (11th Cir. 2018). And Gavin
does not argue that Pena-Rodriguez affords him any relief. Nevertheless, we
cite Pena-Rodriguez simply to acknowledge the existence of a second type of
exception that the Supreme Court has recognized to the no-impeachment
rule.
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50 Opinion of the Court 20-11271
counterparts). See Tanner v. United States, 483 U.S. 107, 126–27
(1987) (holding that Federal Rule of Evidence 606(b) prohibited
inquiry into alleged juror intoxication during deliberations and that
other procedural safeguards in the trial process protected the
defendant’s Sixth Amendment right to a fair trial); Warger v.
Shauers, 574 U.S. 40, 44–48 (2014) (holding that federal Rule 606(b)
prohibited introduction of evidence that a juror lied during voir
dire). The Supreme Court emphasized the importance of Rule
606(b) to ensuring “frankness and freedom of discussion” by jurors
during deliberation, which would be destroyed if attorneys could
later use juror testimony to attack the verdict. Tanner, 483 U.S. at
120, 127. The Court also expressed concern that permitting the use
of juror testimony to impeach a verdict would undermine the
interest in the finality of judgments, the “jurors’ willingness to
return an unpopular verdict,” and trust in the judicial system. Id.at 120–21.
The evidence that Gavin seeks to submit in support of his
claim does not fall within the ambit of any exceptions to Rule
606(b)—it is not evidence of an external influence on or extraneous
prejudicial information that was brought to bear on the jury’s
decision, or evidence of racial animus. Rather, Gavin seeks to
submit a juror’s statement about an irregularity in the jury’s
deliberative process—the exact type of evidence that Alabama’s
Rule 606(b) excludes. And despite Gavin’s argument that, in the
context of premature penalty-phase jury deliberations, the no-
impeachment rule “must yield” to his Sixth and Fourteenth
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20-11271 Opinion of the Court 51
Amendment rights to a fair and impartial jury trial, he has identified
no clearly established federal law from the Supreme Court in
support of that principle. Thus, the CCA’s rejection of this claim
was not contrary to, or an unreasonable application of, any federal
law. See 28 U.S.C. § 2254(d)(1).
IV. Conclusion
Accordingly, we reverse the district court’s grant of habeas
relief on Gavin’s ineffective-assistance claim. We affirm the denial
of Gavin’s juror misconduct claim.
AFFIRMED IN PART AND REVERSED IN PART.
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20-11271 Jordan, J., Concurring 1
JORDAN, Circuit Judge, concurring.
I join Parts I, II, and III.A(ii) of Judge Branch’s opinion for
the court. Because we conclude in Part III.A(ii) that the prejudice
determination of the Alabama Court of Criminal Appeals was
reasonable, it is unnecessary to address counsel’s performance in
Part III.A(i).
With respect to Part III.B, which concerns the juror
misconduct claim, I agree with the result, but my reasoning is
slightly different. When the ACCA issued its opinion in August of
2014, the Supreme Court had held that Federal Rule of Evidence
606(b) precluded the introduction of evidence that multiple jurors
were intoxicated during trial, and in so doing had rejected the
defendant’s argument that the exclusion of such evidence violated
the Sixth Amendment. See Tanner v. United States, 483 U.S. 107,
123–26 (1987). And several months after the ACCA’s decision, the
Supreme Court again affirmed the exclusion of evidence of alleged
juror misconduct under Rule 606(b) and again rejected the
contention that the exclusion violated the constitutional right to a
fair trial. See Warger v. Shauers, 574 U.S. 40, 44–51 (2014) (holding
inadmissible an affidavit by one juror that another juror had
revealed during deliberations that she lied when questioned at voir
dire). It was not until Peña-Rodriguez v. Colorado, 137 S.Ct. 855,
869–70 (2017), that the Supreme Court held that a prohibition on
juror impeachment concerning deliberations and the verdict had to
give way to evidence that a juror was racially biased against the
defendant. Because Peña-Rodriguez was decided several years
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2 Jordan, J., Concurring 20-11271
after the ACCA issued its opinion in Mr. Gavin’s case, I cannot say
that the ACCA acted unreasonably in 2014 in applying Alabama
Rule of Evidence 606(b) to preclude evidence of the jurors’
premature sentencing vote. Given the AEDPA posture of this
appeal, I would not opine on whether the rationale of Peña-
Rodriguez extends to a scenario like the one presented here.