Paul Glen Everett v. Secretary, Florida Department of Corrections , 779 F.3d 1212 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11857
________________________
D.C. Docket No. 5:11-cv-00081-RS
PAUL GLEN EVERETT,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 27, 2015)
Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
HULL, Circuit Judge:
Paul Everett, a Florida inmate, filed a 28 U.S.C. § 2254 petition for a writ of
habeas corpus, raising multiple challenges to his first-degree murder conviction
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and death sentence. The district court denied Everett’s petition, but granted him a
certificate of appealability (“COA”) as to one issue: Whether a law enforcement
officer’s request for a consent to search from, or service of an arrest warrant on, a
defendant in custody who has invoked the right to counsel violates the Fifth
Amendment.
Upon Everett’s motion, this Court expanded the COA to include an
additional issue: Whether the district court erred in denying Everett’s claim that his
trial counsel rendered ineffective assistance in the investigation and presentation of
mitigating evidence during the penalty phase of his 2002 trial.
Having considered the state court record, the district court’s thorough order,
and the parties’ submissions, and with the benefit of oral argument, we affirm the
district court’s denial of Everett’s § 2254 petition.
I. CRIME, GUILT PHASE, AND VERDICTS
A. Murder, Burglary, and Sexual Battery
On Friday, November 2, 2001, during the late afternoon or early evening,
Everett was roaming the neighborhood where victim Kelli M. Bailey lived in
Panama City Beach, Florida. Everett was armed with a wooden fish bat and
“looking for . . . some money.” He entered the home of Bailey, a stranger to him,
uninvited, possibly through an unlocked door.
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Bailey emerged from her bedroom and confronted Everett in the living
room. Everett beat Bailey, and as she tried to run back to her bedroom, he knocked
her down and raped her. Everett also twisted Bailey’s neck, breaking a vertebra,
which paralyzed her and caused her to suffocate to death. 1 Bailey suffered
extensive other injuries, including multiple abrasions on her face; swollen eyelids
and hemorrhaging of the eyes; a fractured nose; lacerations and bruising on her
lips; a tear in her lip through which her teeth protruded; a knocked-out tooth;
bruising of her tongue where her teeth impacted the tongue; and abrasions on her
body consistent with carpet burn.
Before leaving Bailey’s house, Everett removed his shirt, but he took with
him some cash and a credit card from Bailey’s purse, his fish bat, and her jacket.
Outside the house, Everett discarded all but the cash. Everett returned to the Fiesta
Motel, the nearby motel where he was staying at the time.
Bailey did not show up that evening for her seven o’clock shift as a medical
technologist at a hospital and thus a concerned coworker called her home phone
and left multiple messages on her answering machine. The coworker then called
Bailey’s stepfather, John Greathouse, who lived less than a mile from Bailey, to
ask Greathouse if he knew where Bailey was. Greathouse drove to Bailey’s house
1
The medical examiner testified that it may have taken Bailey up to several minutes to
lose consciousness after she was paralyzed.
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and entered through her back door using his key. Greathouse discovered Bailey
lying dead in the doorway to her bedroom, and he called 911.
Police responded and investigated the murder scene, where they found blood
spatter in the living room, on the doorway to Bailey’s bedroom, and in her
bedroom. Police found Bailey lying face down in the entrance to her bedroom,
with her legs partially splayed. One of Bailey’s teeth was lying on the floor next to
her head. Bailey’s jacket and credit card were discovered one block from her
house.
Additionally, police recovered a fish bat approximately 133 feet from
Bailey’s back door. The bat tested positive for the presumptive presence of blood.
The police subsequently discovered that an individual—later determined to be
Everett—had purchased the same model of fish bat at a local Wal-Mart store on
October 27, 2001.
B. Everett’s Arrest in Florida
At the time of the murder, Everett was a fugitive from justice in Alabama,
where he previously had received a ten-year suspended sentence for a 1999
conviction of possession of a forged instrument. In February 2000, Everett’s
probation was revoked, and he was sentenced to ten years in state prison. Everett
posted a supersedeas bond pending his direct appeal. When his appeal was denied
on October 5, 2001, Everett was required to begin serving his sentence within
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fifteen days under the terms of the bond. Instead of turning himself in by his
October 20, 2001 deadline, Everett fled to Florida.
Accordingly, an Alabama bail bondsman was searching for Everett at the
time of the November 2001 murder. Around nine o’clock on the night of the
murder, based on a tip from one of Everett’s sisters, the bail bondsman found
Everett at the Fiesta Motel. The bail bondsman took Everett into custody and
transported him to Alabama authorities. Everett was then jailed at the Baldwin
County Corrections Facility in Alabama.
C. Everett’s First Statement, November 14, 2001, in Baldwin County,
Alabama Jail
On November 14, 2001, Sergeant Rodney Tilley and Lieutenant Chad
Lindsey, investigators with the Panama City Beach Police Department, traveled to
the Baldwin County jail to interview Everett regarding the Bailey homicide. The
police in Florida had traced the fish bat found near the crime scene to Everett, and
had learned that Everett was being held in the Baldwin County jail in Alabama.
At the beginning of the twelve-minute interview—which was tape-recorded
and subsequently transcribed—Sergeant Tilley said to Everett, “[Y]ou understand
the right to remain silent, you do not have to talk to me, you have the right to have
an attorney present before we talk.” Everett confirmed that he understood and that
he wished to speak with the officers.
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In his transcribed November 14 statement, Everett indicated that, when the
bail bondsman found him at the Fiesta Motel, he had been in Panama City 2 for a
couple of weeks. Everett had come down to Panama City from Alabama to meet
up with a friend, Jared Farmer, with whom he spent most of his visit using crystal
methamphetamine and marijuana. Everett financed the trip and the drugs in part
by writing bad checks, including at a Wal-Mart store, where he purchased a fish
bat among other items. Everett said that he had not seen the fish bat since leaving
it in Farmer’s pick-up truck about a week before leaving Panama City.
When Sergeant Tilley asked Everett what shoes he had with him during the
trip, Everett stated that he had worn a pair of sneakers that he subsequently threw
away when the sneakers got blood on them during a fight with another man on the
beach. After Sergeant Tilley noted that Everett’s story about throwing away the
shoes did not “jive,” Everett stated, “I wish to have a lawyer present. I can tell
you, I can see where this is going. I mean I want a lawyer.”
The transcript of the November 14 statement reflects that Sergeant Tilley
then noted that Everett had requested a lawyer, after which one of the officers shut
off the tape recorder.
2
Although Panama City and Panama City Beach are separate municipalities, Everett and
the Panama City Beach Police Department officers referred to the area generally as Panama City.
We adopt this convention.
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According to Sergeant Tilley’s and Lieutenant Lindsey’s subsequent
depositions, as the Florida officers were “packing up” and leaving the room,
Lieutenant Lindsey said something to Everett to the effect of, “Don’t be lying,
don’t be caught in a lie, you know, now’s the chance for you to tell the truth, you
know, because I don’t want to see the State of Florida stick a needle in your arm.”
Picking up on Lieutenant Lindsey’s attempt to play “bad cop,” Sergeant Tilley
took on the role of “good cop” and said to Everett, “[M]an, you know, I think this
might have been a burglary that went bad. . . . I would sure like to hear it from you,
but . . . .”
At that point, from Sergeant Tilley’s perspective, Everett “mellowed in his
seat.” Sergeant Tilley then stated, “[W]ell, if you want to talk to me, just let me
know, let these folks know.” Sergeant Tilley believed that this left things between
him and Everett on good terms.
D. Request for Consent for DNA Samples—November 19, 2001
Following Everett’s November 14 statement, and sometime on or before
November 19, Sergeant Tilley contacted Officer John Murphy, a detective in the
Sheriff’s Office in Baldwin County, Alabama. Sergeant Tilley asked Murphy to
obtain consent from Everett to collect blood and saliva samples for Tilley’s
investigation of the Bailey homicide. Thus, on November 19, Officer Murphy in
Baldwin County asked for Everett’s consent to collect the DNA samples.
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On November 21, 2001, Officer Murphy prepared a written report
concerning his November 19 interaction with Everett. According to that report,
Everett agreed verbally and in writing to Officer Murphy’s request for DNA
samples. The signed consent forms state in full:
The undersigned, Everett, Paul, does hereby voluntarily and
consentually [sic], grant permission for, Mary Hadley [illegible], to
draw or extract a sample of my blood or hair. This consent is hereby
granted without any pressure, force, or promises made to me. The
sample or samples may be given to, John Murphy, with the, Baldwin
County Sheriffs Office.
...
I, Paul Everett, having been informed of my constitutional right
not to have a search made of the body hereinafter described without a
search warrant and of my right to refuse to consent to said search, do
hereby authorize John D. Murphy, who are officers of the Baldwin
County Sheriff’s Department, to conduct a complete search of my:
Body – Blood, Hair, Saliva. . . . I further state that I am the proper
person to authorize the search referred to herein. This permission is
being given voluntarily and without threats or promises of any kind.
(Paragraph breaks omitted).
Everett provided the samples to Officer Murphy in Alabama. No Florida
police were there then, although Florida police arrived later.
E. November 19 Statement to Officer Murphy and Sergeant Tilley
Officer Murphy’s written report further reflects that, after providing the
DNA samples, Everett told Officer Murphy that Everett had been attempting
unsuccessfully “to contact his [a]ttorney” regarding the Bailey homicide
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investigation. Everett said that he wished to “write a name on a piece of paper” for
Officer Murphy to deliver to Sergeant Tilley, so as to “[p]oint [Sergeant Tilley] in
the right direction.” Officer Murphy stated that he would deliver the piece of paper
only after advising Everett of his rights under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966). Officer Murphy in Alabama then read Everett his Miranda
rights, and Everett signed a copy of his rights and a waiver of them.
On the signed “Statement of Miranda Rights,” Everett put a checkmark next
to each of the five enumerated rights, including “the right to remain silent” and
“the right to talk to a lawyer and have him present with you while you are being
questioned.” Everett also signed below a “Waiver of Rights,” which stated, “I
have read the above statement of my rights, and I understand each of them.
Having these rights in mind, I waive them and willingly make a statement.”
Officer Murphy’s written report states that Everett then told Officer Murphy
that he would like to provide additional information “[o]ff the [r]ecord.” Officer
Murphy informed Everett that any information Everett provided would have to be
on the record and recorded. Everett replied that he would provide a statement to
either Officer Murphy or Sergeant Tilley. Because Sergeant Tilley was en route
from Panama City to collect the DNA samples, Officer Murphy started the
interview with the understanding that Sergeant Tilley would join the interview
when he arrived.
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Sergeant Tilley arrived from Florida just as Everett was starting his
statement to Officer Murphy, which Officer Murphy tape-recorded. According to
the transcription of Everett’s statement, Officer Murphy again advised Everett of
his Miranda rights, stating, “You have the right to remain silent, anything you say
can and will be used against you in a court of law. You have the right to talk to a
lawyer and have him present with you while you are being questioned if you wish.
[If y]ou cannot afford to hire a lawyer[,] one will be appointed to represent you
before any questioning. If you decide at anytime [sic] to exercise these rights and
not answer any questions or make any statements.” Everett confirmed that he
understood his rights and was willing to speak with Officer Murphy.
In his November 19 statement, Everett claimed that, while in Panama City,
he and an acquaintance, “Bubba,” visited the home of Bubba’s lady friend,
“Angel,” a couple days after Halloween. 3 Bubba left to buy drugs, during which
time Angel and Everett struck up a conversation and had unprotected sex.
Afterwards, as Everett and Angel sat talking, still partially undressed, Bubba
returned and became enraged upon finding them together only partially dressed.
Bubba started cursing and beating “Angel,” and after Everett voiced
objection, Bubba pulled out a gun. Bubba pointed the gun at Everett, telling
3
Police interviewed “Bubba,” a man named Fred Wilson, but never identified any
connection between him and victim Bailey. The name “Angel” was given by Everett for the
person Everett claims was in the house with Bubba.
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Everett it was none of his business and that he should leave. Everett left the house,
at which point Angel was still alive and conscious. Everett had the fish bat with
him, and he dropped it as he fled. Once back at the Fiesta Motel, Everett
discovered that he had blood on his shorts and shoes from when Bubba punched
Angel, and he threw these items away.
Everett also stated that, although he was “not the type of person to tell on
anybody,” since he had learned “what happened” to Angel after he left her house,
he had been unable to sleep and it was “getting to [him].” Everett indicated that he
had been planning on contacting Sergeant Tilley, noting, “I’ve got Sergeant
Tilley’s card and I was going to be placing a call today (inaudible) said he was
already coming. (Inaudible) my mother talked about this Friday and uh, I wanted
to go ahead and get it off my chest lawyer or not. I know (inaudible) what
happened (inaudible).”
At the end of his November 19 statement, Everett said to Sergeant Tilley, “I
do want to talk to a lawyer, but I did want to let you know to get you in the right
direction to where . . . .” Sergeant Tilley interrupted, asking whether Everett
wanted an attorney at this point. Everett responded that he did but that he wanted
to set Sergeant Tilley in the “right direction.” Sergeant Tilley indicated that he
would not speak to Everett without an attorney present, and then reminded Everett
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to contact him if Everett wished to speak again. Everett noted that he was “racking
[his] brains,” “trying to think of every detail.”
F. Service of Arrest Warrant and November 27, 2001, Statement
Subsequently, Sergeant Tilley in Florida called Officer Murphy in Alabama
to say that he would be coming to serve an arrest warrant on Everett for Bailey’s
murder. Sergeant Tilley asked Officer Murphy to set up an interview room for the
service of the warrant.
According to Sergeant Tilley’s deposition, on November 27, 2001, when
Tilley arrived, Officer Murphy was in the interview room with Everett, who had
asked to speak to Tilley again. Tilley presented the arrest warrant to Everett and
then said, “I understand you want to talk to me.” Everett responded in the
affirmative and then started to talk before Sergeant Tilley even had a chance to
start the tape recorder. Sergeant Tilley interrupted Everett to start the tape
recorder.
At the beginning of his recorded November 27 statement, Everett
acknowledged that he previously had requested an attorney, but that when
presented with the arrest warrant that day, he had asked to speak to Sergeant Tilley
without the presence of a lawyer. Sergeant Tilley then stated, “Ok, do you
understand that you can still stop at anytime [sic]; you still have your rights?”—to
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which Everett responded, “Yes, sir.” In his deposition, Sergeant Tilley indicated
that this statement was intended to remind Everett of his Miranda rights.
Everett then confessed to beating and raping Bailey. Although Everett
repeatedly denied knowing that Bailey was killed, he admitted to the jerking and
twisting of Bailey’s neck that resulted in her death according to the medical
examiner’s trial testimony. Everett indicated that, on the evening of the murder, he
was walking around Bailey’s neighborhood with Bubba. Everett had smoked
crack the day before and had used acid earlier that day, and he was “tripping” and
“looking for . . . some money.” Everett saw Bailey’s house and assumed that no
one was home, as the lights were all out and it was too early for anyone to be in
bed. 4 While Bubba waited outside as a “look out,” Everett walked up and knocked
on the door. After no one answered, he opened the unlocked door and entered the
house.
Everett described the layout of Bailey’s living room and stated that the first
thing he noticed when he entered her house was her purse on a table in the living
room. Everett went to the purse and removed around seventy dollars in cash and
possibly a credit card. Bailey then entered the living room from the bedroom and
“started running towards [Everett].” Everett and Bailey got “in a tussle,” but
4
The other record evidence does not support Everett’s claim that he thought no one was
home, as testimony indicated that the lights in Bailey’s house were on and her car was in the
driveway.
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Everett claimed that he did not remember much after that because he “was tripping
on acid” and “the LSD pretty much started getting to [him] like really heavy” at
that point.
Everett, however, admitted that he punched Bailey two or three times with
his fist, caused her to bleed, grabbed her by the hair as she attempted to run to the
bedroom, jerked her head back, “possib[ly]” twisted her head, knocked her down,
and raped her, vaginally and anally. Everett claimed that he brought the fish bat
with him to Bailey’s house but never hit her with it.
Everett removed his shirt and left it at Bailey’s house. He grabbed
“something” from her house to wear but discarded it after leaving the house and
running straight toward the Fiesta Motel. He also discarded his shoes in a trashcan
at the motel. Everett claimed that he “had no idea that [Bailey] had been killed
until the day [Sergeant Tilley and Lieutenant Lindsey] came the first time,” and
since that first interview, “it ha[d] been going through [his] mind.”
Everett’s November 27 statement was the only one offered at trial.
G. Indictment, Appointment of Counsel, and Not Guilty Plea
On January 28, 2002, a Florida grand jury indicted Everett on charges of
first-degree murder, burglary of a dwelling with a battery, and sexual battery
involving serious physical force. Public Defender Walter B. Smith was appointed
to represent Everett. Everett entered a plea of not guilty.
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H. Motion to Suppress
Prior to trial, defense counsel Smith moved to suppress the statements that
Everett made on November 19 and 27, 2001 as violative of Everett’s rights under
the Fifth Amendment because the officers did not honor Everett’s November 14
request for a lawyer.
The trial court held a hearing on the motion to suppress. At the hearing, the
parties agreed to stipulate to the facts surrounding Everett’s statements as
presented in (1) the November 21, 2001, report by Officer Murphy recounting the
details of his November 19 interaction with Everett; (2) the deposition transcripts
of Sergeant Tilley and Lieutenant Lindsey; and (3) the transcripts of the interviews
of Everett on November 14, 19, and 27, 2001. The parties then offered arguments
on their respective positions on the suppression issue. Everett did not testify at the
suppression hearing.
In an order, the state trial court denied the motion to suppress on grounds
that (1) as to the request for DNA samples, the Fifth Amendment privilege against
self-incrimination did not extend to the taking of the DNA samples; (2) as to the
November 19 interview, Everett himself initiated the interview after consenting to
the provision of the DNA samples; and (3) as to the November 27 interview,
Everett again initiated the interview after being served with the arrest warrant.
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The state trial court specifically found that the officers had not subjected
Everett to any interrogation prior to seeking his consent for the DNA samples on
November 19, and that his consent was not involuntarily given or the result of any
coercion or wrongdoing on the part of law enforcement. The trial court also found
that, on November 27, Everett “was not being brought in for the purpose of any
additional questioning” and “it was [Everett], and not the officers, who initiated the
request for the interview . . . after being served with the arrest warrant.” In sum,
“there [was] nothing to establish that the officers coerced, forced or misled
[Everett] into giving either the November 19[] or November 27, 2001 interviews.”
At trial, over the defense’s objection, the state trial court admitted the DNA
samples and the tape recording and transcript of Everett’s November 27 confession
during the State’s case-in-chief.
I. Guilt Phase in November 2002
During the guilt phase of Everett’s 2002 trial, the State presented
overwhelming evidence of Everett’s guilt. For example, a DNA expert testified
that the DNA from vaginal swabs of victim Bailey matched Everett’s DNA on all
thirteen genetic markers tested. The DNA expert further testified that the
“frequency occurrence” of someone having Everett’s DNA profile was one in 15.1
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quadrillion of the Caucasian population, 1.01 quintillion of the African-American
population, and 11.2 quadrillion of the Hispanic population.5
Further, the medical examiner testified that there was an abrasion at the base
of Bailey’s vagina that was fresh at the time of her death, and that the abrasion was
consistent with forceful impact in that area by either nonconsensual sexual
penetration or a blunt object. The medical examiner also testified as to the brutal
and deadly attack on Bailey, as evidenced by her broken neck, fractured nose,
swollen eyelids, hemorrhaging of the eyes, and multiple abrasions, lacerations, and
bruises. The damage to Bailey’s neck, according to the medical examiner, was
consistent with a “twisting motion, rather than a single blow to that area.”
The jury also heard evidence linking the fish bat, which police recovered
approximately 133 feet from Bailey’s back door, to the murder scene and to
Everett. Besides the bat’s proximity to Bailey’s home, the bat tested positive for
the presumptive presence of blood, and a crime scene analyst testified about the
extensive blood spatter found around and near Bailey’s body. In addition, the
medical examiner testified that Bailey’s injuries, including her missing and
disrupted teeth, were consistent with a blow to the face by a firm, blunt object.
5
In addition to Everett, the police obtained DNA samples from four other men, Fred
“Bubba” Wilson, Jared Farmer, William Miner, and Steve Colson. The DNA expert testified
that Wilson, Farmer, Miner, and Colson “were all excluded as potential DNA contributors to the
male fraction . . . found on the vaginal swabs.”
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As to the link between the fish bat and Everett, the State presented evidence
that the same model of fish bat was purchased at a Panama City Beach Wal-Mart
on October 27, 2001, less than a week before the murder. A surveillance camera
videotape of that transaction was played for the jury, and a testifying investigator
identified Everett as the person on the video purchasing the fish bat.
Finally, the tape recording of Everett’s November 27 statement was admitted
into evidence and played for the jury. In that statement, as recounted above,
Everett admitted to entering Bailey’s house with the fish bat, getting “in a tussle”
with Bailey, punching her two or three times, causing her to bleed, grabbing her by
the hair and jerking her head back as she attempted to escape, knocking her down,
and raping her, vaginally and anally. While, as noted above, Everett did not admit
to killing Bailey, he admitted the beating conduct and acts that resulted in her
death.
The jury found Everett guilty as charged.
II. PENALTY PHASE EVIDENCE
Following the penalty phase, the jury recommended a death sentence for
Everett by a unanimous vote. Because Everett argues that his trial counsel, Smith,
rendered ineffective assistance regarding mitigating evidence, we outline the steps
that Smith took to investigate, develop, and present mitigating evidence.
A. Pre-Trial Investigation of Mitigating Factors
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Upon his appointment, Smith immediately recognized that Everett’s case
involved the possibility of the death penalty. Accordingly, from the beginning of
his appointment in March 2002, Smith prepared for both the guilt and penalty
phases of trial.
1. Meetings with Everett
Smith and his investigator, Earnest Jordan, met with Everett in jail several
times leading up to the trial, including at least once a month between March and
June of 2002. Smith and Everett also corresponded “quite often.”
In March 2002, investigator Jordan met with Everett and obtained basic
biographical information and the names and contact information of Everett’s
immediate family members. Everett advised Jordan that he had a drug problem
and had been using drugs since around the age of thirteen, beginning with “weed
and beer.” At age fifteen, Everett started experimenting with acid and
methamphetamine. At sixteen, he learned how to cook and manufacture
methamphetamine.
In April 2002, attorney Smith met with Everett in an attempt to obtain more
background information. Smith learned that, although Everett made it only to the
tenth grade, Everett never was in “any special ed classes or emotionally
handicapped classes.” Everett had an “unremarkable” childhood and had split his
time growing up between Fort Payne, Alabama and Sylvania, Georgia. Everett
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attended church “for awhile” in the past, and he provided Smith a name of a church
leader who possibly could serve as a character witness. However, Everett “could
not come up with any other names of teachers or community leaders who might be
helpful.”
Everett reiterated his history of drug use since his early teen years, and also
stated that he used amphetamines every day while in Panama City during the two-
week period in October and November 2002 leading up to the murder. Everett
claimed that an acquaintance from Fort Payne, Joe Garrett, was around him when
he was on drugs and might be able to testify at to Everett’s behavioral changes
when using drugs heavily.
During Smith’s April 2002 meeting, Everett claimed that Farmer and Bubba
were present at Bailey’s house when she was killed. Everett stated that Bubba was
acquainted with Bailey and that he, Bubba, and Farmer went to her house to steal
money for drugs. The three men entered through the back door, and Everett was
rifling through Bailey’s purse when she emerged from her bedroom. During his
meeting with Smith, Everett admitted to striking and raping Bailey but claimed that
she was alive when he left the house with Bubba and Farmer still inside. Everett
suggested that Bubba and Farmer must have killed Bailey after he left, and he
claimed that Farmer was a suspect in another rape–homicide in Fort Payne.
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In May 2002, defense counsel Smith spoke over the phone with one of
Everett’s sisters, Vicki Godby, who stated that she was not sure whether it would
help or hurt Everett if she testified at his penalty hearing. Godby said that she had
some anger about the way that Everett had acted in the past and that, if he indeed
were guilty of the charges, the death penalty might be appropriate for him.
That same month, investigator Jordan met with Everett. During the meeting,
Everett told another version of the events leading up to Bailey’s death, claiming
that Bailey came by mistake to the hotel room where he and Farmer were making
drugs, which caused him to believe that Bailey was a federal agent. Everett also
claimed that he later saw Bailey again while he was out jogging in her
neighborhood. Everett then cut off his meeting with Jordan, stating that Jordan
would have to return later to finish the conversation.
In June 2002, investigator Jordan and Everett met again. During the
meeting, Jordan encouraged Everett to think of anyone else who might be helpful
to the case, and Everett provided the names of a few people who might have
information concerning Farmer. Subsequently, Everett’s story about how Bailey
was killed further evolved, and by trial time, Everett was telling Smith that Bailey
was a double agent who was herself involved in drugs.
2. Development of Mitigation Evidence
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Defense counsel Smith’s initial mitigation strategy was to rely on Everett’s
father, Sidney Everett (“Sidney”), to secure mitigation witnesses, as Sidney had a
lot of contacts in northern Alabama where Everett had been living at the time of his
crimes and where he grew up in part. Sidney pledged to “twist arms” or do
“whatever he had to . . . to get witnesses . . . to testify and say good things about
Mr. Everett.” Moreover, Smith found that Sidney “had a realistic appraisal of what
was going on” with the case, while Everett’s mother was in denial of her son’s
guilt and lived in a different state than her son. Unfortunately, however, Sidney
passed away before trial.
After Sidney’s death, Smith and Jordan traveled to Alabama in October
2002 in an attempt to find mitigation witnesses. One of Everett’s sisters was
supposed to take off work that day to help Smith and Jordan track down potential
witnesses. However, Everett’s sister instead went to work that day, leaving them
to “run[] around on [their] own” to find potential witnesses until she got off work.
Despite this, Smith and Jordan were able to interview Everett’s high school
principal and his guidance counselor; Everett’s friend Joe Garrett; Everett’s sister
Cindy Grider and her husband; and family friend Joe Scott.
The guidance counselor did not remember Everett. The principal, Mr. Tally,
remembered Everett but “characterized him as a truant who did not like to attend
school.” Nevertheless, Mr. Tally did not consider Everett to have been a discipline
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problem. Smith and Jordan also obtained Everett’s school records, including his
report cards. Everett’s report cards showed a range of grades, from A’s to F’s, and
the records indicated a history of absenteeism, particularly in high school.
Smith and Jordan also found and interviewed Joe Garrett, the friend who
Everett said could testify about Everett’s behavior while on drugs. Garrett stated
that he and Everett were very close growing up and he never knew Everett to be a
violent individual. Garrett claimed that Everett had had “quite a few girlfriends,”
none of whom Garrett thought would be good mitigation witnesses because Everett
“tended to use his girlfriends and throw them away.” Specifically, Everett would
borrow money or cars from his girlfriends and “not return items to these girls.”
Cindy Grider, Everett’s sister, told Smith and Jordan that she would try to
come up with the names of additional people with whom they could meet.
Joe Scott had been a friend of Sidney’s. However, “Scott did not have any
kind words to say about Paul Everett . . . [and] also seemed to be rather critical of
[Sidney].” Scott did not express any interest in serving as a mitigation witness for
Everett.
Overall, Smith and Jordan kept running into “dead ends” in their mitigation
investigation and could not find “much redeeming about [Everett],” who “wasn’t a
Boy Scout, . . . wasn’t an athlete, . . . wasn’t a scholar, . . . didn’t go to church,”
and “never had a job.” Some of Everett’s own sisters wanted nothing to do with
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him. The sisters who would speak in support of him could say only that they loved
their brother, were close to him, and never saw him do anything violent. After the
trip to Alabama, Smith and Jordan did not feel that there would be any more
mitigation evidence forthcoming.
As to Everett’s changing stories concerning Bailey’s murder and his
attempts to implicate Farmer and Bubba, defense counsel Smith attempted to
verify Everett’s claims but hit another dead end. Specifically, Smith located and
interviewed Jared Farmer, who claimed that he and Everett were not together on
the day of the murder. Smith also verified that Bubba was a real person. Smith,
however, learned that Bubba was in a cast at the time of the murder because he had
been in an accident where he was trampled by a horse. Ultimately, because Everett
(between his arrest and his trial) had come up with so many versions of his story of
how Bailey died, Smith did not know what Everett would testify to if called to the
stand. Smith knew that Everett “would have been crucified on cross examination.”
Finally, as to Everett’s claim that he was “tripping on acid” at the time of the
crime, Smith could find no evidence to corroborate this claim. Smith asked Farmer
about Everett’s alleged drug use, but Farmer “denied any knowledge of drug use”
and said that he had no idea what Everett was doing the day of the murder.
Additionally, Everett’s story—that he committed the crime only because he was
“tripping on acid”—did not fit with the evidence that he left his motel room that
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evening armed with a fish bat and looking specifically for money. Indeed, Smith
read a statement from the bail bondsman which stated that the bail bondsman had
detained Everett “without any kind of incident” shortly after the murder. Smith
viewed this as inconsistent with Everett’s story that he was in a violent, drug-
induced state the evening of the murder. Therefore, although Smith had no doubt
that Everett was “messing around with drugs” while in Panama City, it appeared to
amount simply to “recreational drug use.”
3. Mental Health Expert
Defense counsel Smith could tell from his interactions with Everett that
Everett was not “mentally retarded . . . [and] didn’t appear[] to be mentally ill,”
and Everett did not have any history of mental illness, psychological problems, or
“drug abuse problems.” 6 Nevertheless, as a “CYA” measure, Smith had Dr. Jill
Rowan conduct a psychological evaluation of Everett to ensure that he was
mentally competent, could testify if he had to, and had a realistic understanding of
how the legal system works.
On July 23, 2002, at Smith’s request, Dr. Rowan conducted a forty-five-
minute evaluation of Everett, who was twenty-three years old at that time. In her
6
Although defense counsel Smith testified at the state post-conviction evidentiary hearing
that he did not recall Everett having any “drug abuse problems,” he also stated that he did not
recall many of the specifics of his mitigation investigation and that he “would defer to whatever
is in [his] files.” Smith’s notes documenting his meetings with Everett clearly indicate that he
was aware of Everett’s history of drug use.
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report, Dr. Rowan indicated that Everett advised that he had seven older sisters and
had split his time growing up with his mother and father depending on his mood.
Everett dropped out of school in the tenth grade, after which he obtained his GED.
He had a history of drug use, beginning at age fifteen, including LSD,
methamphetamine, marijuana, and pills.
Dr. Rowan further reported that Everett was cooperative, had good attention
span and concentration, and had clear and coherent thinking, and that she found it
“easy to follow his presentation.” Everett exhibited a grandiosity and over-
confidence that were likely a combination of immaturity, denial, and personality.
Everett referred to Smith by Smith’s first name, thought “he ought to be in charge
of his case,” and indicated that he planned to attend law school if found not guilty.
Given the severity of the case, Dr. Rowan concluded that Everett had not fully
arrived at a realistic understanding of his situation.
Everett told Dr. Rowan that he spent his time in jail reading novels, law
books, and the paperwork in his case. Everett was able to speak conversantly
about, and demonstrated an understanding of, the charges against him, the possible
penalties, his actions on the day of the murder, the legal process generally, and the
specifics of his case. Dr. Rowan concluded that “[t]here was nothing in his
presentation that indicated a full Competence evaluation ought to be done.” And
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“Everett demonstrated no signs of mental retardation or of a major illness. His
grandiosity [was] not of psychotic proportions.”
Counsel Smith concluded that Dr. Rowan’s assessment of Everett
corroborated his belief that that there was no reason to question Everett’s mental
competency, and so he did not request “any greater psychological work up,” which
he believed “would probably be detrimental to [Everett].” Specifically, Everett
struck Smith as having “pretty classic” “antisocial personality disorder,” and Smith
feared having any personality tests administered. Everett just seemed very
“carefree” about the case, with unrealistic expectations about how he would not be
convicted and would go on to attend law school.
B. The State’s Penalty Phase Evidence
The State opened the penalty-phase hearing with a victim impact statement
by Greathouse, Bailey’s stepfather who raised her since the age of three. In his
statement, Greathouse described Bailey’s intelligence, hard-working nature, and
love of her family, and the impact of Bailey’s death on him, Bailey’s mother, and
the rest of their family. 7
7
The state trial court instructed the jury to rely, in the jury’s sentencing recommendation,
only on the evidence of the aggravating and mitigating circumstances, and not to consider
Greathouse’s victim impact statement in its sentencing recommendation. Rather, the victim
impact statement was intended only to help the jury “determine the victim’s uniqueness as an
individual human being and the result and loss to the community members by the victim’s
death.”
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The State presented evidence that Everett was under a sentence of
imprisonment for the Alabama conviction of possession of a forged instrument
when he killed Bailey, which could serve as an aggravating circumstance for
purposes of the death penalty. The State also relied on the guilt-phase evidence to
argue that it had shown two other aggravating circumstances, namely that Everett
committed the murder during the course of a sexual battery and that the murder
was particularly heinous, atrocious, or cruel.
C. Presentation of Mitigation Evidence Before the Jury
During the penalty phase of Everett’s trial, Smith presented two witnesses:
Everett’s mother, Glenda Everett (“Glenda”), and one of Everett’s sisters, Cindy
Grider, who both testified generally as to Everett’s loving and non-violent nature.
1. Glenda Everett
Glenda testified that Everett was born to her and Sidney in Fort Payne,
Alabama in 1979. Everett had seven older sisters, all of whom loved him and
spent a lot of time with him growing up. As a child, Everett was fun-loving, loved
to play with others, loved to be with his friends and family, and loved people in
general. At some point, Glenda and Sidney started having problems and divorced,
after which Glenda moved her kids, including Everett, to the part of Georgia where
she was from.
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Glenda and Sidney subsequently decided to try to work things out for the
sake of the family and remarried, and Glenda returned to Alabama with the kids.
The marriage, however, fell apart again, and Glenda and her children moved back
to Georgia. Everett missed his father so much that at some point Glenda allowed
him to move back to Alabama to live with his father. Glenda also testified that
“[i]t was never easy on Paul coming from a broken home” and that he had a hard
time accepting that he came from a broken home. Everett loved his father, but his
father had “problems,” “was an alcoholic,” and “at times would say things to
[Everett] that no child needed to know.”
Glenda believed that her son turned to drugs to block out some of the bad
memories of his father. She first noticed that Everett had a drug problem when he
was around eighteen or nineteen years old, and she encouraged him for years to get
into treatment for his drug problem. In the months leading up to the murder,
Glenda noticed that Everett “was not completely himself” because of his drug use.
She tried to talk to him “about his problem and he just couldn’t seem to get it
altogether. He wanted to; he tried more than one try at a time, he just couldn’t
seem to get control of everything.” Glenda noticed some personality changes in
Everett since he started using drugs, but “not to the extent that [she] thought he
would ever be capable of doing something like this.” Glenda “very seldom saw
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[Everett] drink alcohol,” but she knew that he “[s]ometimes . . . would drink a little
alcohol.”
On the other hand, Glenda also testified that, as an adult, Everett was “a very
loving and caring person. That’s always the way he has always been. He has
never been a violent person of this nature of any kind.” Glenda opined that for
Everett to have done “something as horrendous as this is, there would have to be
drugs involved. He’s a very loving, caring person in other cases.” For example,
Everett’s nieces and nephews loved their “Uncle Paul” because he would play and
cuddle with them.
2. Cindy Grider
Grider, one of Everett’s sisters, testified that she and Everett were “very
close,” and she saw or heard from him almost every day when he was living in
northern Alabama. Everett was wonderful with her kids, would babysit them, and
would play with them, and they missed their “Uncle Paul.” Everett always was
“wonderful” with his entire family and with other people in general. Like his
“very caring” father, Everett would “give somebody the shirt off of his back.”
Grider further testified that the reaction in Everett’s hometown to his arrest
was “[s]hock”—no one could believe that “the Paul that they knew” was capable
of the crimes for which he was arrested. They all kept asking Grider “who was he
with [at the time], because there’s no way.” Grider believed that, “[w]ithout some
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influence from somewhere . . . , [Everett] could have never done this.” Grider had
never known Everett to be violent, not even during times that the family knew
“something was wrong” with him.
Grider, however, was aware that Everett was involved in drugs, as were the
people he spent time with, including Farmer and Farmer’s family. She tried
“plenty of times” to get Everett to go to counseling or seek help for his drug use,
but he would only “say what [she] wanted to hear” in response.
3. Smith’s Closing Argument
In closing, defense counsel Smith largely focused on the argument that the
State had not proven the existence of any aggravating circumstance. Specifically,
Smith asserted: (1) Everett was not under a sentence of imprisonment at the time of
the murder because he was not actually in prison when he committed the crimes;
(2) the murder was not particularly heinous, atrocious, or cruel because it was not
committed with an utter indifference to Bailey’s suffering or a torturous design;
and (3) the murder was not committed during the commission of a sexual battery
because Everett already had inflicted Bailey’s fatal injuries when he raped her.
Smith also argued that Everett was a “young kid” who had made a senseless,
tragic, and indefensible decision but who was not worthy of the death penalty.
D. Penalty Trial Before the Sentencing Court
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After the jury recommended a death sentence, the state trial court held a
Spencer8 hearing. The State did not introduce any evidence or call any witnesses.
Everett called his mother Glenda and investigator Jordan to testify. Glenda
testified that, although Everett was twenty-two years old at the time of his crimes,
his maturity level did not match his chronological age. Everett always acted young
for his age and never really supported himself or lived on his own. Jordan testified
that he reviewed the jail records from Everett’s pre-trial incarceration and found no
indication that any disciplinary action was ever taken against Everett. Everett
declined to offer a statement to the court.
The state trial court sentenced Everett to death for Bailey’s murder. The
court found the existence of three statutory aggravating factors, specifically that
the murder: (1) was committed while Everett was under a sentence of
imprisonment for a previous felony conviction, Fla. Stat. § 921.141(5)(a); (2) was
committed while Everett was engaged in the commission of a sexual battery or a
burglary, id. § 921.141(5)(d); and (3) was especially heinous, atrocious, or cruel,
id. § 921.141(5)(d). The court found four statutory mitigating factors but accorded
them little to very little weight: (1) Everett’s age, id. § 921.141(6)(g); (2) the crime
8
Spencer v. State, 615 So. 2d 688, 690-91 (Fla. 1993) (providing that, after a jury has
recommended a sentence but before the trial court imposes a sentence, the court should hold a
hearing to afford all parties an opportunity to be heard, allow the presentation of additional
evidence, and allow both sides to comment on or rebut information in any presentence or
medical report).
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was committed while under the influence of some type of substance, id.§ 921.141(6)(b);9 (3) lack of significant history of prior criminal activity, id.
§ 921.141(6)(a); and (4) Everett’s family background and his drug use, id.
§ 921.141(6)(h). As to Everett’s family background, the trial court noted his
father’s alcoholism and his parents’ divorce, remarriage, and second divorce. The
court found that Everett’s upbringing, while not “ordinary,” was not a “deprived
one.” The court also found non-statutory mitigating factors, each of which
received very little weight: (1) Everett’s remorse, as expressed in his November 27
confession; (2) Everett’s good conduct in custody; (3) the alternative punishment
of life imprisonment without parole; and (4) Everett’s confession. Finding that the
aggravating circumstances outweighed the mitigating circumstances, the trial court
imposed a sentence of death.
III. DIRECT APPEAL
Everett appealed to the Florida Supreme Court. See Everett v. State, 893
So. 2d 1278 (Fla. 2004) (“Everett I”). Everett argued, among other things, that the
trial court should have suppressed the DNA samples and his November 27
9
The trial court rejected the argument that Everett was under the influence of an extreme
mental or emotional disturbance caused by a hallucinogenic drug at the time of the offenses
because Everett was able to go to and enter Bailey’s home, burglarize her home, rape and murder
her, and later recall specific details regarding these events. The court, however, found that it was
reasonably established that Everett was under the influence of some type of substance.
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confession because they were obtained in violation of his Fifth Amendment rights.
Id. at 1282-83.
The Florida Supreme Court affirmed Everett’s first-degree murder
conviction and death sentence. Id. at 1280. On the Fifth Amendment claim, the
Florida Supreme Court found that law enforcement officers contacted Everett on
two separate occasions after he had invoked his right to counsel under Miranda,
first, to obtain his consent to provide DNA samples, and second, to serve him with
an arrest warrant. Id. at 1283.
The Florida Supreme Court identified the question as “whether a law
enforcement officer’s request for a consent to search from, or service of an arrest
warrant on, a defendant in custody who has invoked the right to counsel violates
the Fifth Amendment.” Id. at 1285. The Florida Supreme Court then cited and
discussed at length the Supreme Court decisions in Miranda; Edwards v. Arizona,
451 U.S. 477, 101 S. Ct. 1880 (1981); Arizona v. Roberson, 486 U.S. 675, 108 S.
Ct. 2093 (1988); Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980);
Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975); Schmerber v. California,
384 U.S. 757, 86 S. Ct. 1826 (1966); and others. Everett I, 893 So. 2d at 1283-86.
The Florida Supreme Court pointed out that “Miranda requires that once a
defendant has invoked the right to counsel during questioning, no further
interrogation of that individual in custody is permitted, unless counsel is present.”
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Id. at 1284. The Florida Supreme Court also stressed that the Supreme Court “did
not require counsel’s presence for all further communications; only for
interrogations.” Id.The Florida Supreme Court then discussed Innis, where the Supreme Court
considered what constitutes “interrogation” for these purposes. Id. The Florida
Supreme Court quoted from Innis at length, including Innis’s discussion of what
constitutes interrogation. Id. at 1284-85. The Florida Supreme Court noted the
Supreme Court’s conclusion that “the character of interrogation ‘must reflect a
measure of compulsion above and beyond that inherent in custody itself,’” id. at
1284 (quoting Innis, 446 U.S. at 300, 100 S. Ct. at 1689), and the Supreme Court’s
definition of the term interrogation as “express questioning or its functional
equivalent,” as follows:
“[T]he Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its functional
equivalent. That is to say, the term “interrogation” under Miranda
refers not only to express questioning, but also to any words or actions
on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.”
Id. (quoting Innis, 446 U.S. at 300-01, 100 S. Ct. at 1689-90).
The Florida Supreme Court added that the Supreme Court in Edwards
provided further guidelines regarding the boundaries of custodial interrogation. Id.
at 1285. The Florida Supreme Court explained that, in Edwards, “[t]he [Supreme]
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Court reiterated ‘that an accused, having expressed his desire to deal with the
police only through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police.’” Id. (quoting Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885) (alteration
adopted).
The Florida Supreme Court also cited and discussed Roberson. See id.After analyzing both Innis and Roberson, the Florida Supreme Court concluded
that “[t]he police are not forbidden all contact with a defendant in custody; in fact,
the [Supreme] Court expressly exempted from the definition of ‘interrogation’
routine police contact ‘normally attendant to arrest and custody.’” Id. (quoting
Innis, 446 U.S. at 301, 100 S. Ct. at 1689).
After considerable review of Supreme Court precedent, the Florida Supreme
Court concluded that the service of the arrest warrant and the request for consent to
provide DNA samples did not constitute interrogation because neither involved a
word or action that the police should know is reasonably likely to elicit an
incriminating response. Id. at 1286. Specifically, the service of the arrest warrant
was a routine police procedure and it did not require a response from Everett. Id.
The request for consent to provide DNA samples was the same request the officers
had made of several other individuals whom they had not been able to eliminate
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from a list of potential suspects in Bailey’s murder. Id. The Florida Supreme
Court concluded that the DNA request was “not reasonably likely to elicit an
incriminating response.” Id.
The United States Supreme Court denied Everett’s petition for certiorari.
Everett v. Florida, 544 U.S. 987, 125 S. Ct. 1865 (2005).
IV. STATE COLLATERAL PROCEEDINGS
A. Motion for Post-Conviction Relief
In 2006, Everett filed a motion for post-conviction relief pursuant to Florida
Rule of Criminal Procedure 3.851. Among other claims, Everett alleged that he
received ineffective assistance of counsel in connection with the investigation and
presentation of mitigating evidence, including drug abuse evidence, for the penalty
phase of the trial.10
B. State 3.851 Evidentiary Hearing
In 2008, the state 3.851 court held an evidentiary hearing. Six witnesses
presented testimony relevant to Everett’s claim of ineffective counsel in the
penalty phase: (1) Glenda, Everett’s mother; (2) Grider, Everett’s sister; (3) Ashley
Malone, one of Everett’s other sisters; (4) Everett himself; (5) Dr. Umesh Mhatre,
10
Everett alleged ineffective assistance of penalty phase counsel as two claims. For ease
of discussion, we refer to his allegations as a single claim.
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a psychiatrist; and (6) Walter Smith, Everett’s trial counsel. We outline their 3.851
testimony.
1. Glenda Everett
Glenda testified that she told Everett’s defense team in preparation for the
penalty phase trial that Everett was a good, non-violent child and that the family
had moved around a lot while he was growing up. Glenda testified as to the
specifics of the family’s moves, explaining that she and Sidney had marital
problems because of his drinking. She and Sidney first divorced in 1984, after
which she and her children moved from Fort Payne, Alabama, to Sylvania,
Georgia, where Everett started kindergarten.
After about a year and a half, in January 1986, while Everett was in the first
grade, Glenda and the children moved back to Fort Payne when she and Sidney
remarried. Then, in November 1986, Glenda again moved herself and the children
back to Sylvania, where Everett attended the same school that he had before.
Around the beginning of the next school year, Glenda and her children
returned to Fort Payne. In 1987 to 1988, Everett attended the same school as
before, and the family remained for a full school year. Glenda and Everett then
moved back to Sylvania after the end of that school year. Everett was able to make
friends with other children, but his friendships were interrupted by the moves.
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Glenda further testified that Sidney “spent a lot of time with [Everett],” but
she did not consider Sidney to be a good influence on him. When he was fourteen
years old, Everett moved in with his father, and he eventually dropped out of
school. In her testimony, Glenda indicated that Smith had not asked her a lot of
questions about this part of Everett’s life and that he had interviewed her only
once.
On cross-examination, Glenda admitted that she could not tell when Everett
was on drugs and when he was not. But she did become aware that he “was into
drugs real heavy” not long before the murder.
2. Cindy Grider
Everett’s sister Grider, who is six years older than Everett, confirmed that
the family moved a lot while he was growing up. At some point, she became
aware that Everett was “going down the wrong path,” which included drug use.
On many occasions, Grider spoke “very frankly” with Everett concerning his drug
use and his friends, whom Grider did not consider to be good influences. Grider
also did not consider Sidney, who “drank,” to have been a good influence on
Everett. Grider had never seen her brother be violent, including when he was on
drugs. As to Smith’s mitigation investigation, Grider did not recall Smith ever
formally interviewing her, and Smith had only one “very brief conversation” with
her.
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3. Ashley Malone
Everett’s sister Malone, who is four years older than Everett, is the closest of
his sisters in age to him. She stated that the family moves during Everett’s
childhood were hard on him and his siblings, but he managed to maintain
friendships throughout the moves. In around 2000 or 2001, Malone became aware
that Everett was using drugs, but she never saw him do anything violent, including
while on drugs. Smith never interviewed Malone during his mitigation
investigation.
4. Paul Everett
With regard to Smith’s mitigation investigation, Everett testified that Smith
did not bring up mitigating factors with Everett until they were about to go to trial,
and Smith did very little to establish mitigating factors beyond “briefly speaking
with [Everett’s] family.” Although Smith had Dr. Rowan meet with Everett, Dr.
Rowan and Everett met for only “30, 45 minutes tops.” Basically, Dr. Rowan
asked Everett about his childhood history, where he went to school, and “a little bit
about [his] case.” Her emphasis in interviewing him was on his ability to stand
trial, and she did not go into any great length about his background.
Everett further testified that Smith never asked him about his problems with
drugs. Given that he was steadily drinking alcohol from the age of seven or eight,
Everett believed that Smith should have looked into his history with drugs and the
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effect that certain substances may have had on his brain development as a child.
Everett started smoking marijuana around age twelve or thirteen. By the age of
sixteen, he was “eating LSD every day, injecting methamphetamine every day.”
Although drugs were “pretty much an every day thing” for him, he kept his drug
use hidden from his family for several years.
As to his two-week stay in Panama City leading up to the murder, Everett
testified that he was using cocaine, methamphetamine, LSD, and ecstasy. In the
hours leading up to the murder, Everett was using cocaine and methamphetamine
together. Using cocaine and methamphetamine together would cause Everett to
experience “intense paranoia of the police,” where he felt that he was being
watched or followed by law enforcement. He was also experiencing paranoia at
the time because he had been manufacturing methamphetamine. When asked
whether the paranoia would ever prompt him to commit violence, Everett initially
testified, “No,” but then immediately stated that he could not really say because
“when it gets to that point it’s self-preservation not wanting to go to jail.” Everett
admitted that he never discussed his drug-induced paranoia with either Smith or
Dr. Rowan.
5. Dr. Umesh Mhatre
Dr. Mhatre, a psychiatrist who had done “a lot of death row evaluation,” met
with Everett on October 16, 2007 for about an hour. Dr. Mhatre testified as to the
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history of substance abuse that Everett reported during his interview. Specifically,
Everett told Dr. Mhatre that Sidney gave him his first beer at around eight years
old and that Everett sometimes would drink between twelve and eighteen beers a
day. At some point, Everett started drinking hard liquor, which he found difficult
to handle. At twelve years old, Everett started abusing marijuana, and he
subsequently started using LSD, powder cocaine, crack cocaine, crystal
methamphetamine, ecstasy, and pain pills.
Everett also reported to Dr. Mhatre that, during his trip to Panama City at the
time of the murder, he was cooking crystal methamphetamine every day, was high
on drugs throughout the trip, and had not slept in several days. Everett also
claimed that, in the week leading up to the murder, he used about half an ounce of
methamphetamine, five ounces of marijuana, one gram of powder cocaine, one
gram of crack cocaine; had done six to seven hits of LSD; and had consumed
twelve beers a day. Dr. Mhatre testified that the crystal methamphetamine would
have acted as a stimulant to Everett and could have caused significant paranoia.
Most of the drugs that Everett was on were well known to cause paranoia,
hallucinations, and delusions.
Dr. Mhatre believed that Everett’s reported drug use on the day of the crimes
was consistent with Everett’s history of drug use and Everett’s claim that he
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committed the crimes in a state of drug-induced paranoia. Specifically, Everett
reported to Dr. Mhatre that, on the day of the murder,
he was getting increasingly paranoid and when the victim accidentally
got into [his motel] room looking for somebody, the paranoia just
went off the roof, he started thinking she was a law enforcement,
trying to get her, trying to track her down, ran into her unfortunately
later on while she was jogging, followed her and stalked her and [was]
convinced, and . . . [his] initial purpose to go [to the victim’s house]
was to find out . . . if she does, in fact, belong to law enforcement.
Dr. Mhatre conceded that he was not able to corroborate Everett’s claims
concerning his drug use or Everett’s claim that he was in a drug-induced psychosis
at the time of the murder through police officers’ reports or other witnesses.
Dr. Mhatre did not conduct any psychological testing of Everett, and indeed,
he was not qualified to administer such tests. Dr. Mhatre did speak to Everett’s
mother and two of Everett’s sisters as part of his evaluation of Everett, and he
testified as to the information obtained from these interviews. Glenda told Dr.
Mhatre that she and Sidney fought a lot in front of the children, which she believed
had “a big impact on all of her children, possibly especially on [Everett].” Glenda
reported that Everett “was like a different person” when he was on drugs and that
he was never violent except when he was on drugs, which caused him to have “a
bit of a temper.” Dr. Mhatre also confirmed through the interviews that Sidney
was an alcoholic, but Everett did not report any particularly positive or negative
feelings about Sidney.
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6. Walter Smith
Everett’s trial counsel, Smith, testified regarding his extensive legal
experience and his pre-trial investigation of mitigation factors in Everett’s case. 11
At the time of the 2008 evidentiary hearing before the 3.851 court, Smith had been
an attorney for twenty-eight years, including around fifteen years with the Public
Defender’s Office. He represented defendants in forty-one first-degree murder
trials, twenty of which were death penalty cases. Four of his clients received death
sentences, two of which were upheld by the Florida Supreme Court. Smith had
never used co-counsel, but he did utilize an investigator. Most of Smith’s
defendants suffered from some kind of mental health issue, and based on
consultations with psychologists, Smith was “pretty dead on” in recognizing and
identifying potential mental health issues in his clients.
C. State 3.851 Court Order
On July 17, 2008, the 3.851 court issued an order making factual findings
and denying Everett’s 3.851 motion. As to Everett’s claim of ineffective counsel
in the penalty phase, the 3.851 court first rejected Everett’s allegation that Smith
failed to adequately investigate mitigating circumstances and improperly relied on
his alcoholic father to secure mitigating evidence. The 3.851 court found that
11
See discussion supra Part II.A.
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Smith was an extremely experienced defense attorney who did investigate, find,
and present mitigating evidence in Everett’s case.
Specifically, after facing difficulty obtaining mitigation information from
Everett’s family, Smith and his investigator traveled to Alabama in attempt to
locate mitigating evidence and also obtained Everett’s pre-trial incarceration
records. Contrary to Everett’s allegation that Smith did not consult with a
psychological or psychiatric professional, Smith had Dr. Rowan examine Everett.
At the penalty phase hearing, Smith presented the testimony of Glenda and Grider,
who testified regarding Everett’s background and drug use. The 3.851 court found
that “Smith did the best he could with the type of information he had available to
him.”
As to Everett’s drug use, the 3.851 court found that, in light of the constant
references to drug use by Everett in the trial record, Everett’s claim that Smith
failed to adequately investigate his drug use was not credible. Smith presented
testimony concerning Everett’s drug use in the penalty phase in an attempt to avoid
the death penalty, and the testimony of Everett’s three family members about his
drug use during the evidentiary hearing was essentially the same evidence
presented during the penalty phase. Accordingly, Everett had not shown that
Smith failed to discover evidence about his drug use that would have changed the
outcome of his penalty-phase hearing.
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The 3.851 court further found that Everett failed to show that Dr. Mhatre’s
testimony would have changed the outcome of his penalty-phase hearing. The
3.851 court noted that Dr. Mhatre’s opinion—concerning the effect of Everett’s
drug use on his behavior the day of murder—rested entirely on information
provided by Everett, and Dr. Mhatre was not able to corroborate any of that
information from officers’ reports or other witnesses. By the time of trial, Smith
was aware that Everett had come up with a story about Bailey’s death similar to
what Everett subsequently told Dr. Mhatre, and Smith attempted unsuccessfully to
verify the story. For example, Smith determined that Bubba was an actual person
and learned that Bubba was in a cast at the time of the murder. Thus, Smith had
utilized the information he had available to him during the penalty phase of the
trial to the best of his ability.
D. Florida Supreme Court Decision
Everett appealed, and on February 10, 2011, the Florida Supreme Court
issued a revised opinion affirming the denial of Everett’s Rule 3.851 motion. See
Everett v. State, 54 So. 3d 464 (Fla. 2010) (“Everett II”).
The Florida Supreme Court correctly noted that Everett’s claims of
ineffective counsel were governed by the two-prong standard in Strickland v.
Washington. Id. at 471-72 (citing Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984) (requiring a petitioner alleging ineffective counsel to show both
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deficient performance and prejudice)). The Florida Supreme Court separately
considered and rejected each of Everett’s four main contentions concerning
Smith’s alleged ineffectiveness during the penalty phase. See id. at 479-85.
First, the Florida Supreme Court concluded that Everett showed neither
deficient performance nor prejudice as to his claim that Smith relied on Everett’s
alcoholic father and failed to look elsewhere for mitigation especially after his
father’s death. Id. at 479-80. The Florida Supreme Court agreed with the 3.851
court that Smith extensively searched for mitigation evidence and was not able to
find mitigation beyond the testimonies of Everett’s mother and sister. Id. The
Florida Supreme Court added that Everett presented little evidence at his post-
conviction hearing that Smith failed to present at trial. Id. at 480. Although
Everett presented Dr. Mhatre’s testimony concerning his drug-induced paranoia
and its role in his violent behavior, Dr. Mhatre conceded that his opinion was
based solely on Everett’s statements, and Dr. Mhatre did not opine that the
paranoia rose to the level of statutory mental health mitigation. Id. at 480. The
Florida Supreme Court reasoned that Everett had “the burden of showing that
counsel’s ineffectiveness deprived him of a reliable penalty phase proceeding,” but
that “Everett did not do so.” Id. (quotation omitted and alteration adopted).
Second, the Florida Supreme Court rejected Everett’s argument that Smith
failed to present evidence that Everett lacked a male role model other than his
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alcoholic father and that he had an unstable upbringing because his family moved a
lot. Id. at 480-81. The court determined that the evidence presented at the post-
conviction evidentiary hearing concerning these circumstances was essentially
cumulative to the evidence presented during the penalty hearing. Id. at 481.
Specifically, evidence during both hearings “showed that Everett’s father was an
alcoholic and acted inappropriately toward Everett at times; that Everett loved his
father; and that Everett moved several times as a result of his parents’ divorce,
remarriage, and second divorce.” Id. Therefore, Everett had shown neither
deficient performance nor prejudice under Strickland. Id.
Third, the Florida Supreme Court concluded that Everett’s next claim—that
Smith failed to consult with a psychological or psychiatric professional—was
“factually incorrect” because Smith in fact had Dr. Jill Rowan examine Everett.
Id. at 482. To the extent that Everett claimed that Smith should have called Dr.
Rowan to testify as a mitigation expert, Smith did not perform deficiently because
Dr. Rowan’s findings were not favorable to Everett’s case. Id. Everett likewise
did not show prejudice because the record indicated that the evidence presented at
the post-conviction evidentiary hearing would not have changed the balance of
aggravation and mitigation. Id. at 482-83. Although Dr. Mhatre’s testimony may
have been relevant to the statutory mitigating circumstance of whether Everett
acted under the influence of extreme mental or emotion disturbance, Dr. Mhatre’s
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theory about Everett’s drug-induced paranoia was undermined by the facts in
Everett’s case. Id. Specifically, the evidence showed that Everett deliberately
entered and burglarized Bailey’s home, raped and murdered her, and subsequently
was able to recall clearly the factual circumstances of the crimes. Id. at 483.
Fourth, the Florida Supreme Court concluded that Everett demonstrated
neither deficient performance nor prejudice with his argument that Smith should
have presented more evidence of his drug use during the penalty phase. Id. at 483-
85. The Florida Supreme Court concluded, as the 3.851 court had found, that
Smith properly investigated and presented evidence of Smith’s drug use during the
penalty phase. Id. at 484. Although the evidence produced at the evidentiary
hearing may have provided more detail about Everett’s drug use, the testimony of
Everett’s mother and two sisters at the post-conviction hearing was substantially
cumulative to the evidence presented during the penalty phase. Id. at 484-85. In
any event, the Florida Supreme Court determined that the additional testimony at
the post-conviction hearing “did not undermine confidence in the trial.” Id. at 485.
V. FEDERAL HABEAS PROCEEDINGS
On March 21, 2011, Everett filed pro se a federal habeas petition under 28
U.S.C. § 2254. After the district court appointed counsel, counsel filed an
amended § 2254 petition. As amended, Everett’s petition raised several grounds
for relief, including that (1) his Fifth Amendment rights were violated by the
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failure to suppress his November 27 confession and the DNA samples obtained by
law enforcement after he invoked his right to counsel; and (2) trial counsel
rendered ineffective assistance in the investigation and presentation of mitigation
evidence during his penalty-phase trial.
On March 28, 2014, the district court issued a 108-page order denying
Everett’s amended § 2254 petition and discussing at length both of the above
claims. The district court concluded that the Florida Supreme Court’s rejection of
the claims resulted in neither an unreasonable application of clearly established
Supreme Court precedent nor an unreasonable determination of the facts. As to the
Fifth Amendment claim, the record showed that the officers honored Everett’s
invocation of his right to counsel but that Everett then waived his right to counsel
and confessed. As to the claim of ineffective penalty-phase counsel, the record
demonstrated that Smith was not deficient in investigating possible mitigation
evidence and that Everett suffered no prejudice. Everett timely appealed.
VI. STANDARD OF REVIEW
Everett’s federal habeas petition is governed by 28 U.S.C. § 2254(d), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Recognizing that “[s]tate courts are adequate forums for the
vindication of federal rights . . . , AEDPA erects a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudicated in state court.”
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Burt v. Titlow, 571 U.S. ___, ___, 134 S. Ct. 10, 15-16 (2013). The “purpose of
AEDPA is to ensure that federal habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not as a means of error
correction.” Greene v. Fisher, 565 U.S. ___, ___, 132 S. Ct. 38, 43 (2011)
(quotation omitted). With this background, AEDPA permits federal courts to grant
habeas relief in only two limited circumstances after a state court has denied relief.
See 28 U.S.C. § 2254(d).
First, § 2254(d)(1) permits a federal court to grant habeas relief when 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.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law”
refers “to 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, 120 S. Ct. 1495, 1523 (2000).
A circuit court “may, in accordance with its usual law-of-the-circuit
procedures, look to circuit precedent to ascertain whether it has already held that
the particular point in issue is clearly established by Supreme Court precedent.”
Marshall v. Rodgers, 569 U.S. ___, ___, 133 S. Ct. 1446, 1450 (2013). However,
circuit precedent may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that [the Supreme Court]
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has not announced.” Id. Also, a circuit court “may not canvass circuit decisions to
determine whether a particular rule of law is so widely accepted among the Federal
Circuits that it would, if presented to [the Supreme Court], be accepted as correct.”
Id. at ___, 133 S. Ct. at 1451.
The phrase “contrary to” means that the state court decision contradicts the
United States Supreme Court on a settled question of law or holds differently than
did the Supreme Court on a set of materially indistinguishable facts. Lockyer v.
Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173 (2003). The pivotal question in
most federal habeas cases is whether the state court’s application of clearly
established federal law was unreasonable. Harrington v. Richter, 562 U.S. ___,
___, 131 S. Ct. 770, 785 (2011). “[I]t is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a specific legal rule that
has not been squarely established by [the U.S. Supreme Court].” Knowles v.
Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411, 1419 (2009) (quotation omitted).
“An unreasonable application of federal law is different from an incorrect
application of federal law,” Williams, 529 U.S. at 410, 120 S. Ct. at 1522; indeed,
“even a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable,” Harrington, 562 U.S. at ___, 131 S. Ct. at 786. We may issue
a writ of habeas corpus only when “the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error
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well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at ___, 131 S. Ct. at 786-87. As
long as “some fairminded jurists could agree with the state court’s decision,
although others might disagree, federal habeas relief must be denied.” Loggins v.
Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).
Second, § 2254(d)(2) allows a federal court to grant habeas relief when the
state court decision “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)(2). As the Supreme Court recently reiterated, “a state-court factual
determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Titlow, 571 U.S. at ___,
134 S. Ct. at 15 (quotation and citations omitted). “[E]ven if reasonable minds
reviewing the record might disagree about the [fact] finding in question, on habeas
review that does not suffice to supersede the [state] trial court’s determination.”
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849 (2010) (quoting Rice v.
Collins, 546 U.S. 333, 341-42, 126 S. Ct. 969, 976 (2006)) (alterations omitted).
In short, the standard of § 2254(d) is “difficult to meet . . . because it was
meant to be.” Titlow, 571 U.S. at ___, 134 S. Ct. at 16 (quotation omitted). This
“highly deferential standard” demands that “[t]he petitioner carries the burden of
proof,” Cullen v. Pinholster, 563 U.S. ___, ___, 131 S. Ct. 1388, 1398 (2011)
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(quotations omitted), and “that state-court decisions be given the benefit of the
doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002).
VII. FIFTH AMENDMENT MIRANDA CLAIM
Relying primarily on Edwards, Innis, and Roberson, Everett argues that once
he invoked his right to counsel under Miranda on November 14, 2001, the police
officers were totally prohibited from ever having any further communication or
dealings with him without counsel present. Everett contends that this absolute
prohibition requires suppression of his November 27 confession and renders his
written consent to the DNA samples legally ineffective and thus invalid. As to the
DNA, Everett argues this absolute prohibition applies regardless of whether the
police DNA request constituted interrogation and regardless of whether the police
sought testimonial evidence.
Alternatively, even if the Supreme Court has not extended the right to
counsel under the Fifth Amendment beyond interrogation, Everett argues that the
record in this case shows that the police officers did interrogate Everett in violation
of his Fifth Amendment rights. Based largely on Innis and Roberson, Everett
contends that the police subjected him to interrogation surrounding the request for
DNA consent and the service of the warrant as part of a method of “indirect
interrogation” that involved “psychological ploys” meant to break his will.
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We review the relevant Supreme Court case law regarding invocation of the
right to counsel, custodial interrogations, DNA requests, and the Fifth
Amendment’s protection of testimonial communications. We then examine
whether the Florida Supreme Court’s decision—concluding no Fifth Amendment
violation occurred in Everett’s case—was contrary to, or an unreasonable
application of, clearly established federal law as shown in Supreme Court holdings.
A. Miranda and Its Progeny
Under the Fifth Amendment, no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. Therefore, in
Miranda, the Supreme Court held that “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” 384 U.S. at 444, 86 S. Ct. at 1612.
Thus, when an individual is taken into custody and subjected to questioning, police
must warn him prior to any questioning that he has the rights to remain silent and
to the presence of an attorney. Id. at 478-79, 86 S. Ct. at 1630.
Then, in Mosley, the Supreme Court held that “the admissibility of
statements obtained after the person in custody has decided to remain silent
depends under Miranda on whether his right to cut off questioning was
scrupulously honored.” Mosley, 423 U.S. at 104, 96 S. Ct. at 326. The Supreme
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Court concluded that the defendant’s “right to cut off questioning” was fully
respected in this case because police immediately ceased the initial interrogation
after the defendant invoked his right to silence, resumed questioning only after the
passage of a significant period of time and the provision of a fresh set of warnings,
and restricted the second interrogation to a crime that had not been a subject of the
earlier interrogation. Id. at 104-06, 96 S. Ct. at 326-27.12
1. The Edwards Rule
Subsequently, in Edwards, 451 U.S. 477, 101 S. Ct. 1880, the Supreme
Court “set forth a ‘bright-line rule’ that all questioning must cease after an accused
requests counsel.” Smith v. Illinois, 469 U.S. 91, 98, 105 S. Ct. 490, 494 (1984).
Specifically, once the accused has “expressed his desire to deal with the police
only through counsel,” he should not be “subject to further interrogation by the
authorities until counsel has been made available to him, unless [he] himself
initiates further communication, exchanges, or conversations with the police.”
Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885. 13 Thus, the Edwards rule
12
In Mosley, a police officer advised the defendant of his Miranda rights and interrogated
him concerning some robberies, but the officer promptly ceased the interrogation when the
defendant said he did not wish to answer any questions. Mosley, 423 U.S. at 97, 96 S. Ct. at 323.
However, several hours later, another officer advised the defendant of his Miranda rights and
questioned him about a different crime, a homicide, prompting Mosely to make an incriminating
statement. Id. at 97-98, 96 S. Ct. at 323-24.
13
In Edwards, the defendant requested counsel after police took him into custody and
started interrogating him. 451 U.S. at 478-79, 101 S. Ct. at 1881-82. The police stopped
interrogating the defendant at that point, but they reinitiated questioning the following morning,
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involves two separate inquiries: first, “whether the accused actually invoked his
right to counsel”; and second, “if the accused invoked his right to counsel, courts
may admit his responses to further questioning only on finding that he (a) initiated
further discussions with the police, and (b) knowingly and intelligently waived the
right he had invoked.” Smith, 469 U.S. at 95, 105 S. Ct. at 492-93.
With respect to the waiver inquiry, “a valid waiver . . . cannot be established
by showing only that [the accused] responded to further police-initiated custodial
interrogation even if he has been advised of his rights.” Edwards, 451 U.S. at 484,
101 S. Ct. at 1884-85. Rather, for a waiver to be voluntary, knowing, and
intelligent, (1) “the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception”; and (2) “the waiver must have been made
with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412,
420-21, 106 S. Ct. 1135, 1140-41 (1986) (discussing the waiver of a suspect’s
Miranda rights to be “fully apprise[d] . . . of the State’s intention to use his
statements to secure a conviction, and . . . to remain silent and to have counsel
prompting the defendant to confess his crime. Id. at 479, 101 S. Ct. at 1882. The defendant did
not reinitiate further communications, exchanges, or interactions with the police. See id. The
Supreme Court held that the admission of the defendant’s confession against him at trial violated
the Fifth and Fourteenth Amendments as construed in Miranda. Id. at 480, 101 S. Ct. at 1882-
83.
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present if he so desires” (quotation omitted and alterations adopted)). For a court
to conclude that a defendant waived his Miranda rights, the totality of the
circumstances surrounding the interrogation must reveal both an uncoerced choice
and the requisite level of comprehension. Id.“[O]ne, but not the only, measure of the voluntariness of a defendant-
initiated confession is the . . . measure of whether a sufficient period of time has
elapsed since the termination of police questioning for the defendant to have
rationally reflected on the choice before him.” Henderson v. Singletary, 968 F.2d
1070, 1074 (11th Cir. 1992). Where a defendant initiated further conversation with
the police, “[c]ourts must . . . satisfy themselves that the defendant-initiated
confession was not the product of improper police questioning or pressure.” Id.Moreover, “even if a conversation taking place after the accused has expressed his
desire to deal with the police only through counsel, is initiated by the accused,
where reinterrogation follows, the burden remains upon the prosecution to show
that subsequent events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation.” Oregon v. Bradshaw, 462 U.S. 1039,
1044, 103 S. Ct. 2830, 2834 (1983) (plurality) (quotation omitted).
In Roberson, the Supreme Court reaffirmed the bright-line Edwards rule
that, after a person in custody invokes the right to counsel, the police may not
subject him “to further interrogation . . . until counsel has been made available to
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him, unless the accused himself initiates further communication, exchanges, or
conversations with the police.” Roberson, 486 U.S. at 680-82, 108 S. Ct. at 2097-
98 (emphasis added and quotation omitted).
2. The Meaning of “Interrogation” under Miranda
In Innis, 446 U.S. 291, 100 S. Ct. 1682, the Supreme Court defined the
meaning of “interrogation” under Miranda. In that case, police officers advised the
defendant of his Miranda rights upon arresting him on the street in connection with
a robbery and murder committed with a sawed-off shotgun, and the defendant
stated that he wanted to speak with a lawyer. Innis, 446 U.S. at 294, 100 S. Ct. at
1686. Immediately thereafter, while transporting the defendant to the police
station, three officers had a conversation among themselves concerning the
possible danger posed to “handicapped” children playing in the area by the missing
murder weapon. Id. at 294-95, 100 S. Ct. at 1686-87. Overhearing this, the
defendant interrupted the conversation and instructed the officers to return to the
scene of his arrest, where he directed them to the location of the murder weapon
out of concern for “the kids in the area.” Id. at 295, 100 S. Ct. at 1687 (quotation
omitted).
On certiorari review, the Supreme Court concluded that the defendant had
not been “interrogated” within the meaning of Miranda. Id. at 302-03, 100 S. Ct.
at 1690-91. The Supreme Court held that “the term ‘interrogation’ under Miranda
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refers not only to express questioning, but also to any words or actions on the part
of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from
the suspect.” Id. at 301, 100 S. Ct. at 1689-90 (emphasis added) (alteration in
original) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612).14
In defining “interrogation” in Innis, the Supreme Court noted that the
concern of the Miranda Court “was that the ‘interrogation environment’ created by
the interplay of interrogation and custody would ‘subjugate the individual to the
will of his examiner’ and thereby undermine the privilege against compulsory self-
incrimination.” Id. at 299, 100 S. Ct. at 1688. The police “techniques of
persuasion” that caused this concern extended beyond “express questioning” and
included the use of “coached witnesses,” as follows:
For example, one of the practices discussed in Miranda was the use of
line-ups in which a coached witness would pick the defendant as the
perpetrator. This was designed to establish that the defendant was in
fact guilty as a predicate for further interrogation. A variation on this
theme discussed in Miranda was the so-called “reverse line-up” in
which a defendant would be identified by coached witnesses as the
14
In Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638 (1990), the Supreme Court
recognized a “routine booking exception” to Miranda’s coverage for questions to secure the
defendant’s “biographical data necessary to complete booking or pretrial services,” such as
questions regarding name, address, height, weight, eye color, date of birth, and current age.
Muniz, 496 U.S. at 600-02, 110 S. Ct. at 2649-50 (quotation omitted). The Supreme Court
reasoned that, where such questions are “requested for record-keeping purposes only” and
therefore “appear reasonably related to the police’s administrative concerns,” the questions “fall
outside the protections of Miranda and the answers thereto need not be suppressed.” Id. at 601-
02, 110 S. Ct. at 2638.
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perpetrator of a fictitious crime, with the object of inducing him to
confess to the actual crime of which he was suspected in order to
escape the false prosecution. The Court in Miranda also included in
its survey of interrogation practices the use of psychological ploys,
such as to “posi[t]” “the guilt of the subject,” to “minimize the moral
seriousness of the offense,” and “to cast blame on the victim or on
society.” It is clear that these techniques of persuasion, no less than
express questioning, were thought, in a custodial setting, to amount to
interrogation.
Id. at 299, 100 S. Ct. at 1688-89 (emphasis added).
Thus, in Innis the Supreme Court held, “Miranda safeguards come into play
whenever a person in custody is subjected to either express questioning or its
functional equivalent.” Id. at 300-01, 100 S. Ct. at 1689. In concluding that the
officers’ comments were not the functional equivalent of interrogation, the
Supreme Court observed that nothing in the record suggested that the officers
should have known that their conversation was reasonably likely to elicit an
incriminating response from the defendant. Id. at 302-03, 100 S. Ct. at 1690-91.
In addition to these cases discussing what constitutes “interrogation,” we
must also review the scope of the Fifth Amendment’s privilege against self-
incrimination.
3. Scope of the Fifth Amendment Privilege against Self-Incrimination
The privilege against self-incrimination protects a person only against being
incriminated by his own compelled “testimonial” communications. Doe v. United
States, 487 U.S. 201, 207, 108 S. Ct. 2341, 2345 (1988) (quotation omitted and
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emphasis added) (holding that the court-ordered signing of consent forms by the
target of a grand jury investigation to authorize foreign banks to disclose records of
his accounts was not testimonial). “[I]n order to be testimonial, an accused’s
communication must itself, explicitly or implicitly, relate a factual assertion or
disclose information. Only then is a person compelled to be a ‘witness’ against
himself.” Id. at 210, 108 S. Ct. at 2347 (footnote omitted).
The Supreme Court has held that certain compelled acts, though
incriminating, are not within the privilege against self-incrimination under the Fifth
Amendment because they are not testimonial or of a communicative nature,
including providing a handwriting exemplar, Gilbert v. California, 388 U.S. 263,
266-67, 87 S. Ct. 1951 (1967); furnishing a blood sample, Schmerber, 384 U.S. at
760-65, 86 S. Ct. at 1830-33;15 providing a voice exemplar, United States v.
15
Schmerber also raised a Fourth Amendment claim. Schmerber, 384 U.S. at 766, 86 S.
Ct. at 1833. The Supreme Court held that the police officer did not violate Schmerber’s Fourth
Amendment rights by taking a blood sample without a warrant because, inter alia, the
diminishing alcohol in Schmerber’s blood presented an emergency and the threatened
destruction of evidence. Id. at 770-71, 86 S. Ct. at 1835-36. In Missouri v. McNeely, 569 U.S.
___, 133 S. Ct. 1552 (2013), the majority held that the natural metabolization of alcohol in the
bloodstream does not present a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.
Id. at ___, 133 S. Ct. at 1556. Instead, the McNeely majority held, exigency in this context must
be determined case by case based on the totality of the circumstances. Id.
A number of state courts had interpreted Schmerber as a per se rule under the Fourth
Amendment, see id. at ___, 133 S. Ct. at 1558 n.2, but the McNeely majority went to great
lengths to interpret Schmerber as also using a “totality of the circumstances” approach. One
state court has held that McNeely announced a new rule of law for purposes of state habeas
petitions because it “broke new ground,” Siers v. Weber, 2014 S.D. 51, ¶ 17 (S.D. 2014), and for
this reason Westlaw has Schmerber flagged as abrogated by McNeely as recognized in Siers.
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Dionisio, 410 U.S. 1, 7, 93 S. Ct. 764, 768 (1973); standing in a lineup, United
States v. Wade, 388 U.S. 218, 222-23, 87 S. Ct. 1926, 1930 (1967); or wearing
particular clothing, Holt v. United States, 218 U.S. 245, 252-53, 31 S. Ct. 2, 6
(1910).
Similarly, “the ‘right’ to counsel to protect the Fifth Amendment right
against self-incrimination is not absolute.” Roberson, 486 U.S. at 686 n.6, 108 S.
Ct. at 2100 n.6. If police decide not to “provide counsel during a reasonable period
of time in which investigation in the field is carried out, they may refrain from
doing so without violating the person’s Fifth Amendment privilege so long as they
do not question him during that time.” Miranda, 384 U.S. at 474, 86 S. Ct. at 1628.
B. Everett’s Consent to Provide DNA Samples
Turning to Everett’s case, we address the Florida Supreme Court’s decision
as to the November 19 DNA samples and then as to his November 27 confession.
As to the DNA consent, Everett has not demonstrated that the Florida
Supreme Court’s decision—that the request for consent to collect DNA samples
did not violate his Fifth Amendment rights—“was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
However, based on the McNeely majority’s analysis and purported following of Schmerber and
related precedent, we do not read McNeely as abrogating, even in part, Schmerber. In any event,
Everett consented to the DNA sample, and this appeal does not involve a Fourth Amendment
claim.
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possibility for fairminded disagreement.” Harrington, 562 U.S. at ___, 131 S. Ct.
at 786-87.
First, although Everett twice invoked his right to counsel under Miranda
while in custody, the Florida Supreme Court correctly concluded that the
appointment of counsel was not required except for interrogation. Everett I, 893
So. 2d at 1284; see Edwards, 451 U.S. at 485-86, 101 S. Ct. at 1885 (“The Fifth
Amendment right identified in Miranda is the right to have counsel present at any
custodial interrogation. Absent such interrogation, there would have been no
infringement of the right that Edwards invoked . . . .”). Simply put, the police
officers were not forbidden contact with Everett that did not amount to
interrogation—that is, express questioning or words or actions that the police
should have known were reasonably likely to elicit a verbal incriminating
response. See Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90; Thompkins, 560 U.S.
at 380-82, 130 S. Ct. at 2259-60. Indeed, the Supreme Court excludes from the
definition of “interrogation” those police communications “normally attendant to
arrest and custody.” Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90.
Second, the Florida Supreme Court also reasonably concluded that the
request for DNA consent did not amount to interrogation. Everett I, 893 So. 2d at
1286. The privilege against self-incrimination extends only to compelled
testimonial communications, which are those communications that relate a factual
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assertion or disclose information. Doe, 487 U.S. at 207, 210, 108 S. Ct. at 2345,
2347. Thus, neither the furnishing of consent to collect DNA, nor the DNA
evidence itself, is testimonial or communicative. See id. at 210, 108 S. Ct. at 2347.
In addition, DNA collection by police is not interrogation of a suspect because it is
not reasonably likely to elicit an incriminating verbal response. Accordingly, the
Florida Supreme Court reasonably concluded that the request for DNA consent—
even though it followed Everett’s invocation of his right to counsel under
Miranda—did not violate his Fifth Amendment rights. 16
We recognize that Everett argues that once he invoked his right to counsel
under Miranda the police were prohibited from having any further communication
or dealings with him without counsel present. The cases relied on by Everett in
support of this argument—Edwards, Mosley, Roberson, and Innis—provide no
indication, and certainly do not clearly establish, that the Fifth Amendment right to
counsel extends beyond interrogation or that police must cease all further
communication with a detained individual in the absence of an attorney after he
invokes his right to counsel. Rather, the Supreme Court in these cases consistently
16
To the extent that Everett’s contends that service of the arrest warrant constituted
interrogation, we summarily conclude that the Florida Supreme Court reasonably determined that
the service of the warrant did not amount to interrogation. Everett I, 893 So. 2d at 1286.
Sergeant Tilley’s service of the arrest warrant was part of routine police procedure normally
attendant to custody, and Tilley would not reasonably have expected service of the arrest warrant
to elicit an incriminating response, as a response from Everett was not even required. Cf. Innis,
446 U.S. at 302, 100 S. Ct. at 1690 (reasoning that a conversation was merely “a dialogue
between the two officers to which no response from the [defendant] was invited”).
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held only that interrogation must cease in such circumstances. Roberson, 486 U.S.
at 680-82, 108 S. Ct. at 2097-98; Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885;
Innis, 446 U.S. at 302-03, 100 S. Ct. at 1690-91; Mosley, 423 U.S. at 104 n.10, 96
S. Ct. at 326 n.10. Indeed, the Supreme Court in Roberson specifically noted that
the police officers in that case were free to have communications with the
defendant that did not constitute interrogation even after he requested counsel. See
Roberson, 486 U.S. at 687, 108 S. Ct. at 2101.
Contrary to Everett’s allegations, there is no record evidence that the police
asked Everett any questions about the Bailey homicide when Officer Murphy gave
Everett the DNA consent form to sign. And it was Officer Murphy in Alabama,
and not Sergeant Tilley, who gave Everett the DNA consent form to sign. At oral
argument, Everett’s counsel stressed that Sergeant Tilley testified in his deposition
that, when Tilley asked Officer Murphy to collect Everett’s DNA samples, Murphy
indicated that he was already planning “to go back and talk to [Everett]”
concerning another case unrelated to the Bailey homicide investigation. However,
no record evidence establishes that Murphy actually approached Everett to discuss
the unrelated matter or in fact said something to Everett concerning that unrelated
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matter. Instead, the record shows only that Murphy approached Everett simply to
ask for Everett’s consent to provide DNA samples. 17
In sum, we conclude that the Florida Supreme Court did not unreasonably
apply clearly established Supreme Court precedent in determining that a request
for consent to collect DNA samples from a defendant in custody who has invoked
the right to counsel was not an interrogation, did not procure any testimonial
communication, and did not run afoul of Miranda and its progeny. See Everett I,
893 So. 2d at 1285-87.
C. November 27 Confession
The Florida Supreme Court could have also reasonably concluded that the
factual circumstances surrounding Everett’s November 27 confession did not
violate his Fifth Amendment rights. As noted earlier, Everett invoked his right to
counsel on November 14, 2001. The record shows, however, that on both
November 19 and 27 Everett did two things: (1) Everett initiated further
discussions with the police officers, and (2) Everett voluntarily, knowingly, and
17
Everett also alleges that because Sergeant Tilley and Lieutenant Lindsey made parting
comments to Everett on November 14, those comments should be viewed as continuing
interrogation on November 19, even though only Officer Murphy gave Everett the DNA consent
form and even though five days had intervened. There is no Supreme Court case remotely
supporting that proposition.
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intelligently waived his right to counsel. See Smith, 469 U.S. at 95, 105 S. Ct. at
492-93; see Moran, 475 U.S. at 421, 106 S. Ct. at 1141.18
1. November 19 Statement
Although only the November 27 confession was introduced at trial, Everett
focuses on what happened on November 19 before that confession on November
27. So we do too. Everett contends that the officers’ actions between November
14 and November 27, including the request for consent to collect DNA samples,
constituted an ongoing effort to coerce and indirectly interrogate him, ultimately
culminating in his November 27 confession. Therefore, the totality of the
circumstances leading up to his November 27 confession was before the Florida
Supreme Court and thus is considered here.
The record shows, as an initial matter, that Sergeant Tilley and Lieutenant
Lindsey ended the November 14 interview as soon as Everett requested the
presence of an attorney. Consistent with Edwards, the officers did not resume
18
Everett also contends, based on Mosley, 423 U.S. 96, 96 S. Ct. 321, that the police did
not “scrupulously honor” his invocation of his right to counsel. See id. at 96, 96 S. Ct. at 326(“We therefore conclude that the admissibility of statements obtained after the person in custody
has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’
was ‘scrupulously honored.’”). However, Mosley was a “right to silence” case, and “right to
silence” and “right to counsel” cases do not involve identical inquiries. See Christopher v.
Florida, 824 F.2d 836, 844 (11th Cir. 1987). The invocation of the right to counsel requires the
police to cease interrogation until an attorney is present or the suspect voluntary reinitiates
questioning, Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885, while invocation of the right to
silence does not prevent the police from later reinitiating questioning as long as they
“scrupulously honored” the suspect’s right to remain silent, Mosley, 423 U.S.at 104, 96 S. Ct. at
326. Nothing in Mosley shows the Florida Supreme Court’s decision was an unreasonable
application of clearly established federal law.
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questioning of Everett until after Everett both voluntarily initiated further
discussion and voluntarily waived his previously invoked right to counsel. See
Smith, 469 U.S. at 95, 105 S. Ct. at 492-93.
Specifically, as to Everett’s initiation of further police communications,
there is no allegation (much less evidence) of improper police contact between
November 14 and 19. Then, on November 19, Everett told Officer Murphy that he
wished to provide a name to point Sergeant Tilley in the right direction. After
Officer Murphy immediately advised Everett of his Miranda rights orally and in
writing, Everett again clearly stated that he wished to offer further information and
would give a statement to either Officer Murphy or Sergeant Tilley.
We recognize that Officer Murphy initiated contact with Everett on
November 19 to request consent for the DNA collection, but this non-interrogatory
contact did not run afoul of Edwards, as discussed supra, and does not change the
fact that Everett himself initiated his November 19 statement about pointing
Sergeant Tilley in the right direction. And, before taking his November 19
statement in that regard, Officer Murphy again read Everett his Miranda rights, and
Everett stated that he understood his rights and was willing to speak with Murphy.
Moreover, during his November 19 statement, Everett clearly was attempting to
point Sergeant Tilley in the direction of Bubba as the killer to exculpate himself.
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Significantly too, Officer Murphy and Sergeant Tilley immediately ended the
November 19 interview as soon as Everett requested counsel.
As to Everett’s waiver of his right to counsel (right before he made the
November 19 statement), the state court record amply shows that Everett both
voluntarily waived this right and voluntarily made his November 19 statement.
First, as detailed above, the officers repeatedly advised Everett of his Miranda
rights prior to taking his November 19 statement. Second, in his November 19
statement, Everett indicated that it was a conversation with his mother, and not any
pressure from police, that prompted him to make the statement to “get it off [his]
chest.” Third, the fact that aspects of the November 19 statement were
exculpatory, in that Everett suggested that Bubba was the killer and provided an
explanation for the presence of his DNA on the victim, further suggests that
Everett volunteered the statement. Cf. Burbine, 475 U.S. at 421, 106 S. Ct. at 1141(holding that courts must consider the “totality of the circumstances” in
determining whether a defendant’s waiver of his right to counsel was voluntarily
(quotation omitted)).
Finally, and importantly, a significant period of time, around five days,
elapsed between Everett’s November 14 invocation of his right to counsel and his
initiation of the November 19 statement, giving Everett time to have rationally
reflected on the choice before him. Cf. id. And to repeat, in the district court,
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Everett pointed to no evidence in the record before the Florida Supreme Court
demonstrating that he was subjected to interrogation or other improper police
pressure between his November 14 invocation of his right to counsel and his
initiation of further communication with police on November 19. 19 In other words,
the record does not show that the officers engaged in any of the “techniques of
persuasion” that concerned the Miranda Court. See Innis, 446 U.S. at 299, 100 S.
Ct. at 1688-89. In particular, requesting a DNA sample and service of an arrest
warrant are routine police practices and not psychological ploys of persuasion.
2. November 27 Statement
The state court record also amply shows that Everett initiated his November
27 confession and knowingly and voluntarily waived his right to counsel a second
time. With regard to Everett’s initiation of the November 27 confession to
Sergeant Tilley, Everett told Officer Murphy that he wished to speak with Sergeant
Tilley before Tilley even arrived with the arrest warrant. After Sergeant Tilley
served the arrest warrant on Everett, Everett confirmed that he wished to talk to
19
We decline to consider for the first time on appeal Everett’s argument, which he failed
to properly raise in the district court, concerning Sergeant Tilley and Lieutenant Lindsey’s “good
cop-bad cop” routine and their comments on November 14 that the murder was likely just a
“burglary that went bad” and about “the State of Florida stick[ing] a needle in [his] arm.” See
Mason v. Allen, 605 F.3d 1114, 1120 n. 3 (11th Cir. 2010) (concluding that arguments raised for
the first time on appeal are waived). Although in the district court Everett raised an argument
concerning Lindsey’s statement about “the State of Florida stick[ing] a needle in [his] arm” with
regard to another claim not within the scope of the COA, he did not raise it in connection with
the present claim.
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Tilley. Even if Officer Murphy made the initial contact with Everett to move him
to an interview room for Sergeant Tilley’s service of the arrest warrant, it was
Everett who initiated further communication regarding his case.
The record also demonstrates the voluntariness of Everett’s November 27
statement and waiver of his right to counsel. Most notably, Everett confirmed at
the beginning of his November 27 statement that he had asked to speak to Sergeant
Tilley without the presence of a lawyer. Nonetheless, Sergeant Tilley then
reminded Everett again that he still had his rights under Miranda, and Everett
indicated that he understood. Furthermore, more than a week had passed between
Everett’s invocation of his right to counsel on November 19 and his initiation of
his confession on November 27. And Everett indicated that it was his own
conscience, and not any improper pressure on the part of the police, that motivated
him to confess, as he stated that the victim’s death “ha[d] been going through [his]
mind.” Indeed, Everett’s willingness to speak to the police was evidenced by the
fact that he started confessing before Tilley even had a chance to turn on the tape
recorder.
We also reject Everett’s argument that the Florida Supreme Court
unreasonably rejected his Fifth Amendment claim because the DNA request and
warrant service were “indirect interrogation” techniques that the police should
have known were likely to elicit his verbal incriminating confession. The record
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here shows just the opposite. For example, Everett told Officer Murphy he wanted
to speak to Sergeant Tilley even before Tilley arrived with the arrest warrant. In
any event, as noted, requesting the DNA samples and serving the arrest warrant are
not police techniques designed to elicit a confession.
For all of the foregoing reasons, we conclude that there was a reasonable
basis for the Florida Supreme Court’s decision affirming the denial of Everett’s
motion to suppress as to the November 27 confession. The record established that
(1) the officers did not subject Everett to interrogation prior to, or in connection
with, either the request for consent to collect DNA samples or the service of the
arrest warrant; (2) that Everett voluntarily initiated both interviews; and (3) that
Everett knowingly and voluntarily waived his right to counsel. 20 Because the
Florida Supreme Court’s decision is not contrary to or an unreasonable application
of clearly established federal law, or the result of an unreasonable determination of
the facts, Everett is not entitled to habeas relief on his Fifth Amendment claim.
In conclusion, as to both the DNA consent and November 27 confession,
Everett has not established that the ruling of the Florida Supreme Court “was so
lacking in justification that there was an error well understood and comprehended
20
The Florida trial court made these explicit findings in denying Everett’s motion to
suppress and the record fully supported them. The Florida Supreme Court’s decision discussed
the DNA issues extensively but more summarily ruled on the November 27 confession issue.
Instead of deferring to the reasoning of the Florida Supreme Court, we ask whether there was
any reasonable basis for the Florida Supreme Court’s decision as to the November 27 confession.
See Harrington, 562 U.S. at ___, 131 S. Ct. at 784.
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in existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at ___, 131 S. Ct. at 786-87.
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL IN PENALTY PHASE
A. The Strickland Standard
Everett’s next claim is that his trial counsel rendered ineffective assistance in
the investigation and presentation of mitigating evidence during his penalty-phase
trial. The Florida Supreme Court applied the Supreme Court’s two-pronged test
announced in Strickland to this claim. Under Strickland, to establish
constitutionally ineffective counsel, a defendant must show both (1) that his
attorney’s performance was deficient and (2) that the deficient performance
prejudiced the defense. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527,
2535 (2003) (discussing Strickland); Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Because we must view Everett’s ineffective-assistance claim—which is
already governed by the deferential Strickland test—through the lens of AEDPA
deference to the Florida Supreme Court’s decision, our resulting standard of
review is doubly deferential to that state court’s decision. See Harrington, 562
U.S. at __, 131 S. Ct. at 788 (“The standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’
so.” (citations omitted)).
B. Performance Prong Principles
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The Strickland performance standard is objectively reasonable attorney
conduct under prevailing professional norms. Wiggins, 539 U.S. at 521, 123 S. Ct.
at 2535; Strickland, 466 U.S. at 688, 104 S. Ct. at 2065 (“The proper measure of
attorney performance remains simply reasonableness under prevailing professional
norms.”). We look at what professional norms existed at the time that the attorney
acted. See Porter v. McCollum, 558 U.S. 30, 39, 130 S. Ct. 447, 452 (2009). To
show that an attorney failed to discharge his Sixth Amendment duty, a petitioner
must establish that the attorney’s conduct “amounted to incompetence under
‘prevailing professional norms.’” Harrington, 562 U.S. at ___, 131 S. Ct. at 788
(quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). A petitioner bears the
burden of proving, by a preponderance of competent evidence, that counsel’s
performance was unreasonable. See Strickland, 466 U.S. at 687, 104 S. Ct. at
2064; see also Harrington, 562 U.S. at ___, 131 S. Ct. at 790 (“Strickland . . . calls
for an inquiry into the objective reasonableness of counsel’s performance, not
counsel’s subjective state of mind.”).
Because it would be “all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable . . . a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
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Under the professional standards in place in 2002, when trial counsel
represented Everett, a defense attorney in a capital case had a duty “to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary,” and to present at sentencing mitigating evidence
uncovered during that investigation. Strickland, 466 U.S. at 691, 104 S. Ct. at
2066; see also Williams v. Taylor, 529 U.S. 362, 395-98, 120 S. Ct. 1495, 1514-15
(2000) (counsel’s performance was deficient because counsel “did not fulfill their
obligation to conduct a thorough investigation of the defendant’s background”).
An attorney’s strategic choices “made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S.
at 690, 104 S. Ct. at 2066. However, “strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690-91,
104 S. Ct. at 2066.
“In assessing the reasonableness of an attorney’s investigation, . . . a court
must consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate
further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.
That said, no absolute duty exists to investigate particular facts or a certain
line of defense. Instead, a court’s assessment of an attorney’s investigation hinges
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on whether that investigation—or the decision to limit it—was reasonable.
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. When assessing an attorney’s
decision to limit an investigation, we must make “every effort . . . 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. at 689, 104 S. Ct. at 2065.
Although we must assess a decision not to investigate “for reasonableness in
all the circumstances,” when doing so we apply “a heavy measure of deference to
counsel’s judgments.” Id. at 691, 104 S. Ct. at 2066. We keep in mind that a
defense attorney preparing for the sentencing phase of a capital trial is not required
“to scour the globe on the off chance something will turn up.” Rompilla v. Beard,
545 U.S. 374, 382-83, 125 S. Ct. 2456, 2463 (2005). Rather, “reasonably diligent
counsel may draw a line when they have good reason to think that further
investigation would be a waste.” Id. at 383, 125 S. Ct. at 2463.
C. Performance of Everett’s Trial Counsel
After considering the state court record as a whole, we conclude that the
Florida Supreme Court’s decision—that Everett had not proven that trial counsel’s
investigation and presentation of mitigation evidence were deficient
performance—was not contrary to, or an unreasonable application of, Strickland
and its progeny. In this appeal, Everett raises three main arguments concerning
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trial counsel’s performance as to mitigation evidence, but none of these arguments
shows that the Florida Supreme Court unreasonably applied Strickland or its
progeny.
1. Investigation of Mitigation Evidence
Everett first contends trial counsel failed to conduct a reasonable mitigation
investigation because counsel delegated the task of locating mitigation evidence to
his alcoholic father, Sidney; “did nothing” when Sidney passed away several
months before trial; and unreasonably limited the scope of counsel’s investigation.
But the Florida Supreme Court expressly determined that trial counsel did not
simply rely on Sidney to develop mitigation evidence and did in fact interview
potential mitigation witnesses following Sidney’s death. Everett II, 54 So. 3d at
479. Overwhelming record evidence supports the Florida Supreme Court’s
determination.
For example, trial counsel prepared for the possibility of a capital penalty
phase from the time of his initial appointment to represent Everett. During his
investigation, trial counsel and his investigator, both before and after Sidney’s
death, among other tasks: (1) met with Everett multiple times to obtain Everett’s
background information and the names of potential mitigation witnesses; (2) spoke
with one of Everett’s sisters over the telephone about possibly testifying during the
penalty phase; (3) traveled to Alabama to locate potential mitigation witnesses and
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then interviewed all they found; (4) obtained Everett’s school and jail records; and
(5) spoke with Everett’s principal and guidance counselor, his close friend growing
up, one of his sisters and her husband, and another family friend. Trial counsel
also had Dr. Rowan conduct a competency evaluation of Everett.
Although trial counsel’s initial strategy was to rely on Sidney to find
mitigation witnesses, trial counsel did not abandon his mitigation investigation
after Sidney’s death. Instead, trial counsel and his investigator undertook to locate
and interview all mitigation witnesses they could find, as described above. Trial
counsel also did not limit his investigation to only Everett’s redeeming qualities, as
Everett suggests. Rather, the record demonstrates that trial counsel reasonably
stopped his investigation only after he kept running into “dead ends” and
determined that no further helpful mitigation evidence was likely to be
forthcoming. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; Rompilla, 545
U.S. at 383, 125 S. Ct. at 2463. It cannot be said that the Florida Supreme Court’s
decision was unreasonable, especially because “a particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” Strickland, 466
U.S. at 691, 104 S. Ct. at 2066.
2. Psychological or Psychiatric Expert
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Everett next contends that trial counsel performed deficiently in failing to
have a psychological or psychiatric expert conduct a mental health evaluation of
him for mitigation purposes. As the Florida Supreme Court determined, Everett’s
claim that trial counsel failed to consult with a psychological or psychiatric
professional is factually incorrect because trial counsel had Dr. Rowan examine
Everett for mental competency but decided that any further evaluation of Everett
would be unfavorable to his case. See Everett II, 54 So. 3d at 482.
Even if trial counsel Smith had Dr. Rowan examine Everett for competency
only as a formality, as Everett insists, Smith reasonably declined to pursue
additional mental health evaluation of Everett when Dr. Rowan reported that
Everett showed “no signs of mental retardation or of a major illness” and advised
against “a full Competence evaluation.” In addition, trial counsel Smith was a very
experienced attorney in capital cases. Smith reasonably feared that additional
mental health evidence actually would be unfavorable to Everett’s case, as he
believed Everett had antisocial personality disorder and Dr. Rowan found that
Everett exhibited a grandiosity and over-confidence that were likely a combination
of immaturity, denial, and personality. The Florida Supreme Court’s decision
rejecting Everett’s ineffective-assistance claim about mental health evaluations
was a reasonable application of Strickland. At a minimum, the Florida Supreme
Court did not unreasonably apply any clearly established federal rule when it
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concluded that trial counsel Smith’s performance was not deficient as to mental
health mitigation evidence.
3. Drug Use
Finally, Everett asserts that trial counsel should have presented evidence of
his drug use through a mental health expert. As an initial matter, this is not a case
in which trial counsel failed to uncover or investigate drug use. Rather, the record
amply supports the Florida Supreme Court’s determination that trial counsel
learned of Everett’s drug use and adequately investigated it. See Everett II, 54 So.
3d at 484. Everett reported his history of drug use, both directly to trial counsel
and through counsel’s investigator, and trial counsel attempted to corroborate
Everett’s claim that he was “tripping on acid” at the time of the murder, including
by interviewing Jared Farmer. However, trial counsel could find no evidence to
corroborate Everett’s “tripping on acid” claim and reasonably found it to be
inconsistent with the circumstances of the murder.
Furthermore, trial counsel did in fact present evidence of Everett’s drug use
in mitigation through the testimonies of Everett’s mother and sister. Most notably,
Everett’s mother testified that Everett likely first turned to drugs to block out bad
memories of his father and that he would never have committed the murder if not
for his drug use. Thus, even though trial counsel did not present evidence of
Everett’s drug use through a mental health expert, the jury heard about Everett’s
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drug use. Given the record evidence, we cannot say that the Florida Supreme
Court unreasonably held that trial counsel did not perform deficiently in either his
investigation or his presentation of Everett’s drug use in mitigation. Indeed, as to
Everett’s drug use, the Florida Supreme Court reasonably observed that “[m]ore is
not necessarily better.” Everett II, 54 So. 3d at 485 (quotation omitted).
D. Prejudice Prong Principles
Even assuming that trial counsel’s pre-trial investigation and presentation of
mitigation evidence were deficient, we conclude that the Florida Supreme Court’s
decision that Everett failed to show prejudice was not contrary to, or an
unreasonable application of, clearly established federal law.
For prejudice, the standard is whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. To satisfy the
prejudice prong, the “likelihood of a different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at ___, 131 S. Ct. at 792. “Counsel’s errors
must be so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at ___, 131 S. Ct. at 787-88 (quotation omitted).
Because Everett alleges ineffective assistance in the penalty phase, he must
show that “there is a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and mitigating
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circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at
2069. In assessing whether there is a reasonable probability of a different result,
“we consider the totality of the available mitigation evidence—both that adduced
at trial, and the evidence adduced in the habeas proceeding—and reweigh it against
the evidence in aggravation.” Porter, 558 U.S. at 41, 130 S. Ct. at 453-54
(quotation omitted and alteration adopted); see also Wong v. Belmontes, 558 U.S.
15, 26, 130 S. Ct. 383, 390 (2009) (“[T]he reviewing court must consider all the
evidence—the good and the bad—when evaluating prejudice.”).
E. Everett’s Prejudice Claim
We conclude that the Florida Supreme Court also reasonably determined
that Everett had failed to establish the prejudice requirement of his ineffective
counsel claim. Three reasons support our conclusion.
1. Cumulative Evidence
First, the Florida Supreme Court reasonably concluded that the evidence
presented during Everett’s post-conviction evidentiary hearing was largely
cumulative to the evidence presented during his penalty phase trial. See Everett II,
54 So. 3d at 480, 484-85; see also Belmontes, 558 U.S. at 22, 130 S. Ct. at 387
(reasoning that some of the evidence that the defendant argued his trial counsel
should have presented at sentencing was “merely cumulative” of the evidence that
counsel actually presented and that “adding it to what was already there would
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have made little difference”). As to Everett’s childhood and upbringing, the
testimony of his mother and sisters showed both at trial and during the post-
conviction phase that Everett’s father was an alcoholic and had not always acted
appropriately toward Everett; Everett experienced difficulties as a result of his
family’s frequent moves and his parents’ divorce, remarriage, and second divorce;
and Everett was loving and non-violent as a child. Indeed, the trial court found
Everett’s family background was a statutory mitigating circumstance, noting that
although his childhood could not be considered a “deprived one,” his “upbringing”
was not “ordinary.” Some of the post-conviction evidence of Everett’s drug use
was also cumulative. During the post-conviction evidentiary hearing, Everett’s
mother and sister offered the same nonspecific testimony that Everett had a history
of drug use that was offered during the penalty phase hearing.
2. Unpersuasive Non-Cumulative Evidence
As to prejudice, Everett relies heavily on Dr. Mhatre’s testimony in the post-
conviction phase. While some of his testimony was covered at the penalty phase,
Dr. Mhatre admittedly provided more specific, detailed testimony about Everett’s
drug use and the resulting paranoia at the time of the crimes than was offered at
trial. Yet, to the extent that Dr. Mhatre offered non-cumulative testimony, the
Florida Supreme Court reasonably determined that Everett failed to show a
reasonable probability of a different result with Dr. Mhatre’s testimony. See
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Everett II, 54 So. 3d at 482-83. Dr. Mhatre’s testimony was speculative and
unpersuasive because he conceded that he was not able to corroborate Everett’s
claim that he was in a drug-induced psychosis at the time of the murder through
police officers’ reports or other witnesses. Furthermore, drug use evidence can act
as a “two-edged sword,” and additional evidence of Everett’s drug use at the time
of the murder would not necessarily have been favorable to him. See Cullen v.
Pinholster, 563 U.S. ___, ___, 131 S. Ct. 1388, 1410 (2011) (recognizing that
evidence of addiction can be mitigating, but also can have aggravating aspects).
And, in any event, even without Dr. Mhatre’s testimony, the jury heard
Everett’s claim that he was “tripping on acid” at the time of the murder through the
admission of Everett’s November 27 confession. Indeed, the trial court considered
Everett’s claim that he committed the murder while under the influence of a
hallucinogenic drug and rejected it as inconsistent with the factual circumstances
of Everett’s crimes and his ability to accurately recall the details of Bailey’s house
and her murder. Everett admitted he left the motel with a fish bat and went out
looking for money—all intentional and controlled behavior. The Florida Supreme
Court reasonably concluded that there was not a reasonable probability that Dr.
Mhatre’s uncorroborated testimony would have changed the state trial court’s
finding as to this mitigating circumstance. See Everett II, 54 So. 3d at 482-83.
3. Strength of the Aggravating Factors
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Third, given the powerful strength of the aggravating factors in this case, the
Florida Supreme Court reasonably decided that Everett did not show a reasonable
probability that his proposed mitigation evidence would be strong enough to
outweigh them. As the Florida Supreme Court reasoned, “the evidence in the
record indicates that the mitigating evidence presented during the postconviction
evidentiary hearing would not alter the balance of aggravation and mitigation.”
Everett II, 54 So. 3d at 482. The state trial court found as statutory aggravating
circumstances that the murder: (1) was committed while Everett was under a
sentence of imprisonment for a previous felony conviction; (2) was committed
while Everett was engaged in the commission of a sexual battery or a burglary; and
(3) was especially heinous, atrocious, or cruel. With regard to the latter two
circumstances, the evidence showed that Everett entered Bailey’s home, severely
beat her and broke her neck, and raped her as she slowly lost consciousness and
suffocated to death. Thus, with the strength of the aggravating circumstances and
the relative weakness of the scant non-cumulative evidence presented in Everett’s
post-conviction hearing, the Florida Supreme Court reasonably determined that
there was not a reasonable probability that Everett would have received a life
sentence had his proposed additional evidence been presented. Cf. Belmontes, 558
U.S. at 20, 130 S. Ct. at 386 (“[T]o establish prejudice, [the petitioner] must show
a reasonable probability that the jury would have rejected a capital sentence after it
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weighed the entire body of mitigating evidence . . . against the entire body of
aggravating evidence.”).
IX. CONCLUSION
For the reasons set forth above, we affirm the district court’s denial of
Everett’s § 2254 petition.
AFFIRMED.
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