Billy Leon Kearse v. Secretary, Florida Department of Corrections ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 15-15228
____________________
BILLY LEON KEARSE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:09-cv-14240-WJZ
____________________
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Before WILSON, LUCK, and ED CARNES, Circuit Judges.
LUCK, Circuit Judge:
Billy Kearse was convicted and sentenced to death for the
1991 murder of police officer Danny Parrish. Thirty years later,
Kearse appeals the denial of his petition for a writ of habeas corpus
under 28 U.S.C. section 2254. He contends that the Florida Su-
preme Court unreasonably applied Strickland v. Washington, 466
U.S. 668 (1984) in denying claims that his trial counsel was ineffec-
tive because he failed to investigate and prepare for the testimony
of the state’s mental health expert and he failed to investigate and
present evidence of Officer Parrish’s prior misconduct and difficul-
ties dealing with the public. Kearse also contends that the Florida
Supreme Court unreasonably applied Atkins v. Virginia, 536 U.S.
304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005) in conclud-
ing that his death sentence was not cruel and unusual even though
he had low-level intellectual functioning, mental and emotional
impairments, and was eighteen years and eighty-four days old at
the time of the murder. After careful review of the briefs and the
record, and with the benefit of oral argument, we affirm.
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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Murder
On the night of January 18, 1991, Kearse and his friend,
Rhonda Pendleton, decided to pick up some pizza. On their way
back to Pendleton’s home in Fort Pierce, Florida, Kearse drove the
wrong way down a one-way street. Officer Parrish saw Kearse
driving the wrong way and pulled him over for a traffic stop.
Kearse couldn’t give Officer Parrish a valid driver’s license because
he didn’t have one and he lied about his name and date of birth.
Officer Parrish told Kearse that he would write Kearse three tickets
and let him go if Kearse would tell him his real name.
Kearse kept lying about his name, so Officer Parrish told
Kearse to get out of the car and put his hands on top of it. When
Officer Parrish went to handcuff Kearse, Kearse told Officer Parrish
not to touch him and called Officer Parrish a “lying ass pig” and
said “I’m not going no mother fuckin’ where with you.” At some
point, Officer Parrish accidentally hit Kearse below the eye with his
handcuffs while trying to control Kearse. A physical struggle fol-
lowed during which Kearse snatched Officer Parrish’s service pis-
tol.
Kearse shot Officer Parrish, causing Officer Parrish to fall
back. Kearse briefly paused while Officer Parrish pleaded for his
life—“Come on, man, don’t do it, don’t do it”—before firing off
another round of bullets. He fired again and again and again and
again and again and again and again and again and again and again
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and again—a total of thirteen bullets into Officer Parrish, killing
him.
Kearse kept Officer Parrish’s pistol, drove Pendleton home,
and flattened his car’s tire “[t]o keep the police off [him].” He told
Pendleton that he killed Officer Parrish because he was on proba-
tion, he wasn’t sure if there was a warrant out for his arrest, and he
didn’t want to go back to prison so soon after his release the month
before. Kearse was arrested later that night and confessed that he
shot Officer Parrish.
The Trial
The State of Florida charged Kearse with first-degree mur-
der and robbery with a firearm. Robert Udell, a defense attorney
experienced with capital cases, was appointed to defend Kearse.
After a week-long trial in October 1991, the jury convicted
Kearse on both counts. As required by Florida’s capital-sentencing
statute, the state trial court then held a separate sentencing hearing
in front of the jury. The jury recommended that Kearse be sen-
tenced to death, and the state trial court sentenced Kearse to death
consistent with the jury’s recommendation. The Florida Supreme
Court affirmed Kearse’s convictions but remanded for resentenc-
ing because of “errors relate[d] to the penalty phase instructions
and the improper doubling of aggravating circumstances.” Kearse
v. State, 662 So. 2d 677, 685, 686 (Fla. 1995).
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Resentencing
Resentencing was set for Monday, December 9, 1996. Thir-
teen days before the resentencing hearing, the state moved to have
its mental health expert, Dr. Daniel Martell, examine Kearse. In
response, Mr. Udell moved to continue the resentencing or to
strike Dr. Martell as a witness. Mr. Udell argued that he only heard
about the state’s intent to use Dr. Martell as an expert witness after
the state responded to a discovery demand on November 30. And
he said he could not attend Dr. Martell’s examination on the state’s
proposed dates because of scheduling conflicts. Mr. Udell also
moved to: (1) limit the use of any information gathered from the
examination; (2) declare unconstitutional Florida Rule of Criminal
Procedure 3.202—the newly established rule that permitted the
state to examine Kearse; 1 (3) prohibit application of rule 3.202; and
(4) limit the scope of the examination.
On December 3, 1996, the state trial court held a hearing on
Mr. Udell’s motions. The state trial court granted the state’s mo-
tion to examine Kearse and set the examination for December 5,
1
Rule 3.202 first became effective on January 1, 1996. See Amends. to Fla.
Rule of Crim. Proc. 3.220—Discovery (3.202—Expert Testimony of Mental
Mitigation During Penalty Phase of Cap. Trial), 674 So. 2d 83, 83–84 (Fla.
1995). It was later amended on May 2, 1996. Id. at 85. At the time of Kearse’s
resentencing, rule 3.202 provided that, “in those capital cases in which the
state gives notice of its intent to seek the death penalty within 45 days from
the date of arraignment . . . the court shall order that, within 48 hours after the
defendant is convicted of capital murder, the defendant be examined by a men-
tal health expert chosen by the state.” Id.USCA11 Case: 15-15228 Date Filed: 08/25/2022 Page: 6 of 79
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the Thursday before the December 9 resentencing. The state trial
court denied Mr. Udell’s motion to continue resentencing or to
strike Dr. Martell as a witness, and deferred ruling on his other mo-
tions.
At the start of resentencing on December 9, Mr. Udell re-
newed his motion to continue or to strike Dr. Martell as a witness.
Mr. Udell explained that three days earlier the state gave him “a
copy of the raw data that Dr. Martell generated as a result of his
mental health evaluation of [Kearse]” and that the data was “on its
way to [Kearse’s] experts for their review.” But Mr. Udell wanted
more time so he could research Dr. Martell’s prior publications and
expert opinions. The state trial court denied the motion, conclud-
ing there were no grounds for a continuance and explaining that
Mr. Udell could depose Dr. Martell in the evening or over a week-
end.
Under Florida’s capital-sentencing statute, the jury was re-
quired to consider whether at least one “aggravating circumstance”
existed and, if so, whether there were sufficient “mitigating circum-
stances” to outweigh the aggravating circumstances the jury
found. See Fla. Stat. § 921.141(2) (1996). Mr. Udell sought to prove
three statutory mitigating circumstances at resentencing: (1) the
murder was committed while Kearse was under the influence of
extreme mental or emotional disturbance; (2) Kearse’s capacity to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law was substantially impaired; and
(3) Kearse’s age at the time of the murder. See id. § 921.141(6)(b),
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(f), (g). Mr. Udell also sought to prove forty non-statutory mitigat-
ing circumstances, including twenty-one related to Kearse’s mental
health.2
Mr. Udell called three mental health experts to prove the
statutory and non-statutory mitigating factors related to Kearse’s
mental health.
Kearse’s mental health experts’ testimony
1. Pamela Baker
Pamela Baker, a licensed mental health counselor, first met
Kearse in 1981. Mrs. Baker worked with children who had been
referred to the state as abused, neglected, or ungovernable. Kearse
was referred to Mrs. Baker as an ungovernable child because he left
home without telling anyone and was having problems with his
behavior and attendance at school. Kearse was only eight years old
at the time, which was unusual because most children referred to
the state were much older. Mrs. Baker explained that Kearse was
committed to a county program for a few months and then re-
turned to his mother’s care.
Mrs. Baker’s review of Kearse’s records revealed that the
state was concerned about whether he was suffering abuse at
2
The non-statutory mitigating factors related to Kearse’s mental health in-
cluded “[f]etal alcohol effect including hyperactivity, attention deficit disorder,
poor judgment and delayed learning,” “[o]rganic brain damaged,” “[l]ow I.Q.,
impulsive, and unable to reason abstractly,” “mildly retarded and functioned
at a third or fourth grade level,” and “severely emotionally handicapped.”
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home. It seemed that Kearse’s mother had given up on him and
had little interaction with him. Kearse would often hoard food at
school events because he was neglected at home, and he didn’t
want to leave the county program because he was eating better
than he ate at home. When Kearse was placed into the county pro-
gram, he explained that he ran away from home because he got
scared when his mother drank alcohol and fought with her boy-
friend. Kearse’s mother agreed to participate in a state parenting
program, but her participation was only superficial.
Mrs. Baker noted that Kearse was a juvenile delinquent by
age eight. He committed several offenses over the years, primarily
burglaries and petty thefts, but his delinquency records didn’t re-
flect a lot of aggressive behavior; Kearse would typically fight with
someone only if they were first aggressive to him.
Mrs. Baker testified that her husband had taught Kearse and
that he had no doubt that Kearse was severely emotionally handi-
capped and “operating at a retarded level.” By the time Kearse was
thirteen and in the seventh grade, he could spell only two words:
“cat” and “run.” Mrs. Baker taught Kearse for two years and also
had no doubt that he was severely emotionally handicapped. Mrs.
Baker never thought Kearse would kill someone, although she did
think that about other children she had encountered. She de-
scribed Kearse as being very hyperactive but not violent.
Mrs. Baker visited Kearse in 1991 after he was jailed for mur-
dering Officer Parrish. During the visit, Kearse discussed his up-
bringing. He told Mrs. Baker that he was once punished by having
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to walk around the block naked in front of his neighbors, that he
had been tied to a bed and beaten, and that his mother would beat
him with extension cords and coat hangers fashioned into clubs.
Kearse also told Mrs. Baker that he started drinking alcohol when
he was four or five years old, started smoking marijuana at the age
of twelve or thirteen, and started smoking cigarettes at the age of
fourteen. Kearse reported that he had been sexually molested
when he was twelve years old and had lost his virginity to a thirty-
one-year-old when he was less than sixteen years old.
Mrs. Baker diagnosed Kearse with “panic disorder.” Mrs.
Baker also thought that Kearse met the criteria for “conduct disor-
der.” Mrs. Baker reviewed Kearse’s medical records and noted that
he had been diagnosed with “brain damage” and possibly suffered
from fetal alcohol syndrome.
2. Dr. Fred Petrilla
Dr. Fred Petrilla, a licensed clinical psychologist, testified
that he examined Kearse at the time of Kearse’s trial in 1991 and
again in 1996 shortly before resentencing. In 1991, Dr. Petrilla
spent twenty hours with Kearse and met with Kearse’s mother. Dr.
Petrilla gave several tests to Kearse, including an intelligence test.
The results of the tests suggested brain dysfunction. Although
Kearse’s IQ was 79—“within the borderline range of intelligence,
with mentally retarded being 60 and down”—he was not mentally
retarded. At the time, Kearse scored at a third-grade level for read-
ing and spelling and at a fourth-grade level for arithmetic. Dr. Pe-
trilla explained that the tests he gave Kearse accounted for whether
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a patient was malingering and that he did not think that Kearse was
malingering.
One of the tests Dr. Petrilla gave to Kearse was the Minne-
sota Multifacing Personality Inventory (“MMPI”). Dr. Petrilla gave
the MMPI to Kearse in 1991 and again in 1996. The results showed
that Kearse acted without thinking and was extremely sensitive.
One of the factors in the test—the F Scale—considered whether a
person was trying to fake their symptoms. Kearse’s scores in 1991
weren’t suggestive of malingering. However, Kearse’s F Scale in
1996 was highly elevated. Although Dr. Petrilla conceded that he
wasn’t an expert in interpreting F Scale results, he believed that
Kearse’s elevated F Scale did not indicate malingering but was in-
stead elevated for other reasons, including stress, brain damage,
and emotional problems.
According to Dr. Petrilla, Kearse suffered from one of the
broadest arrays of problems that he had seen in anyone he exam-
ined. Dr. Petrilla concluded that Kearse suffered from longstand-
ing brain dysfunction and learning disabilities. Dr. Petrilla con-
cluded that Kearse murdered Officer Parrish while Kearse “was un-
der an extreme emotional disturbance” and that he was “still under
an extreme emotional disturbance” at the time of resentencing.
Dr. Petrilla also concluded that Kearse was substantially incapable
of conforming his conduct to the requirements of the law at the
time of the murder.
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3. Dr. Jonathan Lipman
Dr. Jonathan Lipman, a neuropharmacologist, examined
Kearse for drug-related conditions. Dr. Lipman spoke with
Kearse’s mother who confirmed that she abused alcohol while she
was pregnant with Kearse. He concluded that Kearse suffered from
“[f]etal [a]lcohol [e]ffect, a milder form of [f]etal [a]lcohol [s]yn-
drome.” Dr. Lipman also had Kearse undergo several brain scans,
the results of which suggested brain damage. He spoke with
Kearse about his recollection of the night of the murder and deter-
mined that Kearse was “confabulat[ing].” Dr. Lipman explained
that this meant Kearse was not lying but was instead filling the gaps
in his memory with what he believed was reasonable. He con-
cluded that Kearse had acted impulsively on the night of the mur-
der.
Dr. Lipman testified that he often relied on the reports of
other experts to reach a professional opinion in a case. And because
Dr. Lipman was not a psychologist or neuropsychologist, he
reached out to Dr. Lawrence Levine, a board-certified neuropsy-
chologist, and Dr. Alan Friedman, a board-certified psychologist,
to get their opinions on Dr. Martell’s test results and Kearse’s ele-
vated F Scale. Dr. Lipman recounted to the jury what Dr. Levine
and Dr. Friedman had reported to him.
According to Dr. Lipman, Dr. Levine reviewed the results
of Dr. Martell’s examination of Kearse and explained that Kearse
scored in the 50th percentile for a nine-and-a-half-year-old child on
one of Dr. Martell’s tests and that Kearse’s score on another of Dr.
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Martell’s tests corroborated Dr. Petrilla’s conclusion that Kearse
suffered from a verbal memory disorder. Kearse’s results from the
verbal learning test also indicated, according to Dr. Levine, that he
was not malingering. A third test that Dr. Levine reviewed showed
low average performance and no malingering or exaggeration. Dr.
Levine concluded that the test results showed brain dysfunction.
Dr. Lipman discussed Dr. Levine’s findings with Dr. Petrilla, who
confirmed that they were consistent with his findings.
Dr. Lipman testified that Dr. Friedman was “the natural
choice of a person” to interpret Kearse’s elevated F Scale because
Dr. Friedman was “recognized as the expert in [the MMPI]” and
was “unique among[] psychological researchers in that he [wa]s the
person that actually d[id] the raw studies of malingerers of disabled
people, and he developed the norms.” Dr. Lipman said that Dr.
Friedman was the author of a “very famous paper” on the MMPI
in which Dr. Friedman “provide[d] the tables of norms drawn from
many people that he has evaluated by which to interpret F Scales.”
Dr. Lipman told the jury what Dr. Friedman had reported to him.
According to Dr. Lipman, Dr. Friedman reviewed Kearse’s
MMPI results and concluded that Kearse “understood the ques-
tions and answered honestly without any . . . symptom magnifica-
tion whatsoever and answered consistently thereby generating a
valid profile.” Dr. Friedman said that Kearse’s “F Scale . . . [was] in
the valid range,” thus “indicating a cooperative nondissimulating
test taking attitude.” Dr. Friedman concluded that “the elevation
seen in all of . . . Kearse’s MMPI profiles reflect[ed] psychiatric
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disturbance” and that it was inappropriate to look only at the
F Scale to assess whether Kearse was malingering. Dr. Friedman
relied in part on the “F minus K index, which is a treatment that
you give to the F Scale to interpret it.” Dr. Friedman noted that
Kearse’s F minus K score was “significantly below” a benchmark
for malingering.
The state’s mental health expert’s testimony
The state’s only witness in rebuttal was Dr. Martell. Dr.
Martell disagreed with Mrs. Baker’s diagnosis of panic disorder.
Dr. Martell also thought that fetal alcohol effect—Dr. Lipman’s di-
agnosis—was “not a mental disorder.” Dr. Martell explained that
the features of fetal alcohol effect could occur naturally without al-
cohol and said that “in the literature, there’s a call to get rid of this
term [f]etal [a]lcohol [e]ffects.” Dr. Martell concluded that, in any
event, it was “highly questionable” that Kearse suffered from fetal
alcohol effect.
Dr. Martell testified that Kearse “ha[d] some areas of weak-
ness but that he d[id] not have brain damage.” Dr. Martell disa-
greed with Dr. Petrilla’s finding of brain damage because Dr. Pe-
trilla relied on a set of norms that had been criticized for not ac-
counting for the age, sex, and educational background of the sub-
ject. Dr. Martell determined that any impairment shown on Dr.
Petrilla’s tests resulted from Kearse’s depression.
Dr. Martell concluded that Kearse suffered from a conduct
disorder as a child and didn’t perform well academically because he
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“made a choice not to apply himself in school.” Dr. Martell also
diagnosed Kearse with “antisocial personality disorder” and “psy-
chopathy.” Dr. Martell explained that neither diagnosis rose to the
level of extreme emotional mental disturbance within the meaning
of the statutory mitigating circumstance.
Dr. Martell also concluded that Kearse was “faking on [his]
personality testing in an attempt to make himself look more im-
paired than he is.” In Dr. Martell’s opinion, Kearse’s elevated
F Scale in his MMPI results showed a “severe effort to fake the
test.” According to Dr. Martell, the MMPI results were “totally in-
valid,” “uninterpretable,” and “reflect[ed] an attempt on [Kearse’s]
part to fake crazy in order to avoid responsibility.”
Dr. Martell stated that he had reviewed the information that
Dr. Friedman had relayed through Dr. Lipman. Dr. Martell said
that, although Dr. Friedman had been “portrayed . . . as the world’s
greatest expert on the MMPI,” he wasn’t. Dr. Martell explained
that the F minus K index used by Dr. Friedman was “not consist-
ently reliable as a method for determining whether a profile is in-
valid or not.” Dr. Martell also faulted Dr. Friedman for not having
personally examined Kearse. Dr. Martell concluded that Kearse
was a pathological liar, and he rejected Dr. Lipman’s determination
that Kearse was confabulating.
In sum, Dr. Martell concluded that Kearse wasn’t under the
influence of an extreme mental or emotional disturbance when he
murdered Officer Parrish. Dr. Martell also concluded that Kearse’s
capacity to appreciate the criminality of his conduct or to conform
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his conduct to the requirements of the law at the time of the mur-
der wasn’t substantially impaired. That conclusion was based on
Dr. Martell’s assessment of Kearse’s behavior before, during, and
after the murder. Dr. Martell explained that Kearse: (1) under-
stood he had done something illegal by driving the wrong direction
down a one-way street and that he was worried about violating his
probation; (2) showed a capacity to conform his conduct to the re-
quirements of the law because he decided to lie to Officer Parrish
about his name and date of birth to avoid responsibility; (3) made
a decision with “[e]ach squeeze of th[e] trigger” as he fired multiple
series of rounds at Officer Parrish; and (4) made efforts to conceal
his involvement by taking Officer Parrish’s pistol with him, disa-
bling the car when he got to Pendleton’s home, and hiding the pis-
tol.
On cross-examination, Mr. Udell highlighted that Dr. Mar-
tell hadn’t spoken with Kearse’s mother or several of the defense
witnesses. And Dr. Martell conceded that reasonable experts could
form different opinions about the same set of facts. Dr. Martell also
admitted that if he were to have a pregnant wife, he wouldn’t want
her to drink alcohol like Kearse’s mother had because it could have
significant detrimental effects on their child and lead to brain dys-
function. Dr. Martell confirmed that he hadn’t studied the effects
of alcohol on animals and that he didn’t practice neuropharmacol-
ogy.
Dr. Martell admitted that he relied on reports of Kearse’s
brain scans but hadn’t reviewed the scans. Dr. Martell also
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acknowledged that his opinion about Kearse’s lack of effort at
school conflicted with the defense witnesses who said otherwise.
And he admitted that the psychiatric manual he relied on—the Di-
agnostic and Statistical Manual of Mental Disorders—previously
considered homosexuality to be a mental disorder.
Mr. Udell challenged Dr. Martell’s conclusion that Kearse
was capable of conforming his conduct to the requirements of the
law based on Kearse’s actions at the time of the murder. Mr. Udell
asked Dr. Martell to explain when he thought that Kearse formed
the intent to kill Officer Parrish, and Dr. Martell conceded that he
“hadn’t thought about it.” Mr. Udell also asked Dr. Martell why
Kearse didn’t have a gun with him if he was determined to avoid
arrest. Dr. Martell responded that Kearse likely didn’t want to add
a felon-in-possession charge to his record. Mr. Udell then high-
lighted a conflict in Dr. Martell’s testimony: “He was willing to kill
in order not to go back to jail but he wasn’t willing to possess a
firearm charge, he wasn’t concerned about that but he was so con-
cerned about not going back to jail that he’d kill an officer?” Mr.
Udell similarly contrasted Dr. Martell’s conclusion that Kearse was
trying to conceal his involvement in the murder with the fact that
Kearse confessed to killing Officer Parrish as soon as he met with
police.
Kearse’s renewed death sentence
The jury unanimously recommended the death penalty and
the state trial court followed that recommendation, finding that the
aggravating circumstances of Kearse’s crime outweighed the
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mitigating ones. The state trial court found two statutory aggra-
vating circumstances. First, the state trial court found that the mur-
der was committed while Kearse was engaged in the commission
of—or during flight after committing or attempting to commit—
robbery. And second, the state trial court found three other statu-
tory aggravating circumstances which it merged into one because
they involved a single aspect of the offense: (1) the murder was
committed for the purpose of avoiding or preventing a lawful ar-
rest or effecting an escape from custody; (2) the murder was com-
mitted to disrupt or hinder the lawful exercise of any governmental
function or the enforcement of laws; and (3) the victim was a law
enforcement officer engaged in the performance of his official du-
ties.
The state trial court found only one statutory mitigating cir-
cumstance—Kearse’s age at the time of the murder. The state trial
court found three non-statutory mitigating circumstances:
(1) Kearse cooperated with law enforcement; (2) his behavior at
trial was acceptable; and (3) he had a difficult childhood that re-
sulted in psychological and emotional problems. The state trial
court found that the mitigating circumstances were “not individu-
ally or in toto substantial or sufficient to outweigh the aggravating
circumstances.”
Kearse again appealed his death sentence to the Florida Su-
preme Court, but this time the court affirmed. Kearse v. State, 770
So. 2d 1119, 1135 (Fla. 2000).
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State Postconviction Relief
After the Florida Supreme Court affirmed Kearse’s renewed
death sentence on direct appeal, Kearse moved for postconviction
relief in state court. Kearse claimed that he received ineffective as-
sistance of counsel at resentencing because Mr. Udell failed to in-
vestigate and prepare for Dr. Martell’s testimony. Kearse also
claimed that he received ineffective assistance of counsel at resen-
tencing because Mr. Udell failed to present evidence of “Officer
Parrish’s prior misconduct and difficulties in dealing with the pub-
lic.” Specifically, Kearse faulted Mr. Udell for calling none of the
“several civilians” who had lodged complaints against Officer Par-
rish to testify at resentencing and for failing “to request Officer Par-
rish’s complete personnel file from [the] Fort Pierce Police Depart-
ment.”
Evidence relating to Kearse’s ineffective assistance of counsel
claim based on Mr. Udell’s failure to investigate and prepare for
Dr. Martell’s testimony
In April and May 2005, the state postconviction court held a
five-day evidentiary hearing on both claims. As to his ineffective
assistance of counsel claim based on Mr. Udell’s failure to investi-
gate and prepare for Dr. Martell’s testimony, Kearse presented tes-
timony from five mental health expert witnesses (Dr. Friedman,
Dr. Lipman, Dr. Barry Crown, Dr. Richard Dudley, and Dr.
Thomas Hyde), Mr. Udell, and Robert Norgard, an expert on the
community standards for defense attorneys. The state called one
witness, Dr. Martell.
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1. Dr. Friedman
Dr. Friedman testified that he became involved in Kearse’s
case when he was contacted by Dr. Lipman in 1996. He testified
that Dr. Lipman asked him to look at Kearse’s MMPI data. He did
so and determined that Kearse’s MMPI results produced a “valid
profile” because his F minus K index fell within a range that sug-
gested “that the test [was] valid, that he wasn’t faking, that it[ was]
open to interpretation.” Dr. Friedman explained that Kearse’s
“F(P) score” also indicated that “he was not exaggerating.” Alt-
hough Kearse’s F Scale was elevated, which could suggest that
Kearse was faking, he testified that Kearse’s F Scale may have been
high because Kearse had “serious maladjustment or psychiatric
problems.” He disagreed with Dr. Martell’s finding that Kearse’s
MMPI results were “[t]otally invalid.”
On cross-examination, Dr. Friedman admitted that the pro-
file generated by Kearse’s MMPI results was at least in part con-
sistent with Dr. Martell’s findings. He also conceded that Dr. Mar-
tell “had an advantage in being able to interview [Kearse].” And he
agreed that whether an F Scale showed malingering was subject to
interpretation. Dr. Friedman confirmed that Dr. Lipman’s recita-
tion of his opinion at resentencing was largely accurate.
Dr. Friedman would have testified at Kearse’s resentencing
if he had been asked to.
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20 Opinion of the Court 15-15228
2. Dr. Lipman
Dr. Lipman testified that Mr. Udell hired him to testify at
Kearse’s resentencing. He was qualified to testify as an expert
about MMPI results, although he “would normally request another
consultation . . . for [his] own edification.” He consulted Dr. Pe-
trilla about Kearse’s MMPI results, and Dr. Petrilla told Dr. Lipman
that he thought Kearse’s MMPI results were invalid. Dr. Lipman
knew from his own research that Dr. Petrilla “was probably not
correct about [that],” so he sought an “outside opinion” from Dr.
Friedman. Mr. Udell never had any interaction with Dr. Friedman,
and Dr. Lipman paid for Dr. Friedman’s services.
At the time of resentencing, Dr. Lipman had not been pro-
vided Dr. Martell’s deposition, report, or videotaped examination
of Kearse. He didn’t agree with Dr. Martell’s findings. It was clear
to him that Kearse had a “developmental disorder” and suffered
from fetal alcohol effect.
On cross-examination, Dr. Lipman agreed that he had “suf-
ficient information” to support his opinion that Kearse suffered
from fetal alcohol effect. He also agreed that Mr. Udell “over-
whelmed [him] with paperwork” and materials to rely on. No new
information had been given to Dr. Lipman since the resentencing
that would’ve changed his opinion that Kearse suffered from fetal
alcohol effect.
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15-15228 Opinion of the Court 21
3. Dr. Crown
Dr. Crown, a licensed psychologist, testified that he exam-
ined Kearse on December 9, 2002, and gave him neuropsychologi-
cal tests. One of the tests showed that Kearse “was putting forth
good effort, good motivation, no indication of malingering or ex-
aggerating or faking.” Dr. Crown concluded that Kearse was “im-
paired” and had “neuropsychological deficits,” and he confirmed
that his findings were consistent with Dr. Petrilla’s. Dr. Crown’s
findings were also consistent with reports of doctors who had ex-
amined Kearse after resentencing—specifically, Drs. Hyde and
Dudley. The common finding among the doctors was that Kearse
“ha[d] low levels of functioning” and was “brain damaged.”
Dr. Crown understood that when Dr. Petrilla gave the
MMPI to Kearse, the questions had to be read to him. Dr. Crown
thought it was “highly unlikely” that an MMPI given to Kearse
would yield a valid result because the MMPI requires an eighth-
grade reading level and Kearse was approximately at a sixth-grade
reading level.
Dr. Crown reviewed the videotape and transcript of
Dr. Martell’s examination of Kearse and didn’t think it was a stand-
ard neuropsychological clinical interview. Dr. Crown conceded
that Dr. Martell didn’t “get in . . . Kearse’s face,” probe[] him like
he was a police interrogator,” or give him a “hard sell.” Instead,
Dr. Crown found the examination “confrontational” because it in-
volved “negative priming”—“the first thing [Dr. Martell] did was
tell . . . Kearse he wanted to discuss the crime, . . . which tends to
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22 Opinion of the Court 15-15228
create a negative set.” Dr. Crown disagreed with Dr. Martell’s ul-
timate findings about Kearse.
4. Dr. Dudley
Dr. Dudley, a physician with a specialty in psychiatry, testi-
fied that he performed a psychiatric evaluation of Kearse on Febru-
ary 10, 2003. Dr. Dudley reached four conclusions based on his
evaluation: (1) Kearse had “long-standing cognitive difficulties”
that “certainly impaired his decision making [and] the impulsivity
of his acts”; (2) Kearse suffered from post-traumatic stress disorder;
(3) Kearse “had learning difficulties at minimum, and possibly [at-
tention deficit hyperactivity disorder]”; and (4) Kearse had a “sub-
stance abuse diagnosis.” Dr. Dudley also testified that Kearse’s cog-
nitive functioning was below where it should be and that Kearse
wasn’t able to conform his conduct to the requirements of the law
when he murdered Officer Parrish. Dr. Dudley explained that his
findings were consistent with Dr. Petrilla’s and Dr. Lipman’s testi-
mony at resentencing and with Dr. Crown’s and Dr. Hyde’s find-
ings.
Dr. Dudley reviewed the videotape of Dr. Martell’s exami-
nation of Kearse and concluded that Dr. Martell should’ve done
more to follow up on some topics. Dr. Dudley disagreed with Dr.
Martell’s findings that Kearse chose not to perform at school and
that there was no evidence that Kearse suffered from a major men-
tal disorder.
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15-15228 Opinion of the Court 23
Dr. Dudley would’ve been available to testify at Kearse’s re-
sentencing had he been asked to.
5. Dr. Hyde
Dr. Hyde, a board-certified neurologist, testified that he per-
formed a clinical evaluation of Kearse a few months before the
postconviction hearing. Dr. Hyde concluded that Kearse suffered
from “attention deficit hyperactivity disorder in childhood with re-
sidual attention deficit symptoms into adulthood.” Dr. Hyde also
concluded that Kearse had “brain damage” and “abnormalities
[that] would be compatible with developmental dysfunction of the
central nervous system.” Dr. Hyde’s findings were consistent with
Dr. Crown’s, Dr. Dudley’s, and Dr. Petrilla’s. According to Dr.
Hyde, Kearse didn’t exhibit any signs of malingering during the
evaluation.
Dr. Hyde disagreed with Dr. Martell’s opinion that Kearse
suffered from antisocial personality disorder. Dr. Hyde explained
that the neuropsychologists he worked with in his clinical practice
“usually conduct[ed] their examinations quite differently than Dr.
Martell did” because “[t]hey rel[ied] much more heavily on testing
batteries,” “[t]hey usually follow[ed] a . . . structured diagnostic in-
terview when trying to reach psychiatric diagnoses,” and “[t]hey
seem[ed] to explore all aspects of possible psychiatric pathology in
a greater and more organized fashion.” Dr. Hyde thought that Dr.
Martell’s examination of Kearse “was heavily weighted towards
personality disorders and antisocial personality disorder in general,
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24 Opinion of the Court 15-15228
and was not as broad based an interview and examination of
[Kearse] for looking for all aspects of psychiatric diagnoses.”
6. Mr. Udell
Mr. Udell testified that his strategy at Kearse’s resentencing
was to establish mitigating circumstances based on Kearse’s impov-
erished background, his age, and the fact that he suffered from fetal
alcohol effect.
Mr. Udell didn’t know when he first became aware that the
state sought to have Dr. Martell examine Kearse. Mr. Udell said
that Kearse’s resentencing may have been the first time he had
dealt with Dr. Martell. When asked whether he had made any at-
tempt to investigate Dr. Martell’s background, Mr. Udell said that
he “would have asked the lawyers that [he] kn[e]w who had been
doing this kind of work for many years” if they knew of Dr. Martell,
“but that’s as far as it would have gone.”
Mr. Udell couldn’t remember if he’d obtained Dr. Martell’s
resume. And he didn’t think he’d ever deposed Dr. Martell. Mr.
Udell explained that he was a “firm believer of doing very little dis-
covery on the record in the presence of the [s]tate [a]ttorney” be-
cause “[e]very time you take a deposition, they learn one thing
about your case that but for your deposition they wouldn’t have
known.”
Mr. Udell said that he “would have known what [Dr. Mar-
tell] was going to say” because he “would have either had a report
or [he] would have asked the [s]tate [a]ttorney what [Dr. Martell
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15-15228 Opinion of the Court 25
was going to] say.” Mr. Udell explained that it was not unusual for
defense counsel and the state attorney to ask each other what their
witnesses were going to say. Mr. Udell had known the state attor-
neys in Kearse’s case for many years, and they had a professional
courtesy of sharing information with each other.
The transcript of Dr. Martell’s examination of Kearse re-
flected that Mr. Udell was present at the beginning but left shortly
after it started. Mr. Udell asked Dr. Martell whether he and the
state attorney needed to be present, and Dr. Martell said that he
preferred to do the examination alone with Kearse, so Mr. Udell
and the state attorney left. Mr. Udell didn’t know if he ever re-
viewed the videotape of the examination.
On cross-examination, Mr. Udell said he thought he “put on
everything there was concerning [Kearse], his social history, men-
tal health history, [and] organic brain problems.” Mr. Udell “spoke
to all the people in the juvenile system who knew [Kearse].” Gen-
erally speaking, jurors in Indian River County, where the trial was
held, were “not big fans of mental health testimony,” so Mr. Udell
tried to play to their sensibilities. Mr. Udell thought that “bringing
in all [of Kearse’s former] teachers . . . would send a message to the
jury, forget the mental health experts, we’re on your level, this is a
good kid.” Mr. Udell explained that he was familiar with the med-
ical terminology; when he spoke casually at trial, it was a strategy
not to appear smarter than the jury.
Mr. Udell explained that he had Dr. Lipman relay Dr. Fried-
man’s opinion that Kearse’s F Scale scores did not show that Kearse
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26 Opinion of the Court 15-15228
was malingering because he “knew what [Dr.] Martell was going
to say” at resentencing. A letter that Mr. Udell had written to Dr.
Lipman confirmed that Mr. Udell planned to use Dr. Lipman to an-
ticipatorily rebut Dr. Martell’s testimony. Mr. Udell agreed that he
used Dr. Petrilla and Dr. Lipman to rebut Dr. Martell’s opinions.
Mr. Udell also confirmed that Dr. Lipman reviewed Dr. Martell’s
test data. Mr. Udell “knew going into trial exactly what Dr. Martell
was going to say as to which statutory aggravators and/or mitiga-
tors existed, and what his test results supposedly revealed, and
where he disagreed with Dr. Petrilla.” Mr. Udell didn’t separately
call Dr. Friedman to testify because he could get the “same infor-
mation to the jury through [Dr.] Lipman.”
7. Robert Norgard
Robert Norgard, a defense attorney experienced with capital
cases, testified as an expert about the community standards for de-
fense attorneys at the time of Kearse’s resentencing.3 Mr. Norgard
3
Although we summarize and discuss Mr. Norgard’s testimony here and else-
where, we so do with the understanding that, as an “experienced capital de-
fense attorney[],” his “views of what constitutes effective assistance in capital
cases” are “not dispositive,” and, indeed, they have little, if any, weight in our
analysis. See Newland v. Hall, 527 F.3d 1162, 1208 (11th Cir. 2008); see also
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) (“Our . . . deci-
sions establish that the reasonableness of a strategic choice is a question of law
to be decided by the court, not a matter subject to factual inquiry and eviden-
tiary proof. Accordingly, it would not matter if a petitioner could assemble
affidavits from a dozen attorneys swearing that the strategy used at his trial
was unreasonable.”).
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15-15228 Opinion of the Court 27
said that it would be “extremely improper” to have experts relay
testimony of other experts outside their own expertise because
they would have “no basis or experience to defend the information
they’re providing” and would be “vulnerable to cross examina-
tion.”
Mr. Norgard explained that there were “a lot of different tac-
tical and strategic ways to go about preparing to deal with” a state’s
mental health expert. If the defendant took part in a videotaped
mental health evaluation, “you would certainly want to review and
be familiar with the evaluation.” However, whether to attend the
evaluation “would be a tactical and strategic decision by the attor-
ney.” Mr. Norgard noted that “[i]n some instances the [s]tate may
call upon a local expert, someone that [was] routinely used in your
geographic area that you may already be familiar with.” Whether
to depose an expert would be “within the tactical and strategic
province of the attorney” and “would vary from case to case.”
Mr. Norgard “would never say that you always have to de-
pose an expert.” For example, an attorney could decide against de-
posing an expert because there may be things “you don’t want the
other side to know about.” Mr. Norgard agreed that even the best
criminal defense lawyers might have different approaches to de-
fending a particular client.
8. Dr. Martell
The state called Dr. Martell. Dr. Martell testified that his
opinion about Kearse remained the same despite hearing Dr.
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28 Opinion of the Court 15-15228
Friedman’s testimony. Dr. Martell noted that “Dr. Friedman didn’t
have the advantage of looking at the 1991 MMPI profile,” and Dr.
Martell disagreed with Dr. Friedman’s testimony about the F mi-
nus K index. Dr. Martell believed he was in a better position than
Dr. Friedman to interpret Kearse’s MMPI results and assess
whether Kearse was malingering because he had the advantage of
personally examining Kearse.
Dr. Martell remembered Mr. Udell coming to his examina-
tion of Kearse. Dr. Martell recalled that Mr. Udell asked him to
begin the examination by asking about the facts of the crime so that
he could object and make a record. Dr. Martell agreed to that re-
quest and began with the crime. Mr. Udell made his objection and
then left.
Dr. Martell didn’t think he’d ever been formally deposed in
Kearse’s case. He also couldn’t remember if he gave any infor-
mation about his examination of Kearse to Mr. Udell before resen-
tencing. Dr. Martell thought that he and Mr. Udell might’ve had
“an informal conversation about the scope of [his] testimony be-
fore [he] took the stand.”
Evidence relating to Kearse’s ineffective assistance of counsel
claim based on Mr. Udell’s failure to present evidence of Officer
Parrish’s prior misconduct and difficulties dealing with the public
As to his ineffective assistance of counsel claim based on Mr.
Udell’s failure to present evidence of “Officer Parrish’s prior mis-
conduct and difficulties in dealing with the public,” Kearse
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15-15228 Opinion of the Court 29
presented testimony from his investigator at resentencing and four
citizens who had negative encounters with Officer Parrish. Kearse
also called Mr. Udell to testify about his failure to obtain Officer
Parrish’s personnel file and his decision not to call citizens to testify
about their negative encounters with Officer Parrish. And Kearse
presented testimony from Mr. Norgard about the community
standards for defense attorneys dealing with cases involving the
murder of a police officer.
1. Anne Evans
Anne Evans, Kearse’s investigator at resentencing, testified
that, when Mr. Udell hired her in 1996, she interviewed “some in-
dividuals who had come in contact with [Officer Parrish] while he
was a police officer, and [asked about] the experiences they had.”
Investigator Evans explained that Mr. Udell “gave [her] a list of
names who had allegedly made complaints against [Officer Par-
rish], and asked [her] if [she] would go out and interview them.”
Investigator Evans also interviewed Kearse’s family members and
“tr[ied] to develop new witnesses” through her investigation.
Investigator Evans didn’t have access to any of Officer Par-
rish’s employment records despite “specifically” asking Mr. Udell
to request them and telling Mr. Udell that she “thought it was very
important” to get Officer Parrish’s personnel file. Both Investigator
Evans and Kearse thought that the citizen complaints should’ve
been presented at resentencing, but Mr. Udell said he wasn’t going
to present any of them.
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30 Opinion of the Court 15-15228
2. Tracey Davis
Tracey Davis testified about her negative encounter with
Officer Parrish. She testified that Officer Parrish pulled her over
and wouldn’t tell her what she had done wrong. They argued for
about thirty to forty-five minutes before Officer Parrish told Ms.
Davis what she was being charged with. Ms. Davis’s mother even-
tually arrived, and Officer Parrish “very rudely told her” that he
didn’t have to explain anything to her.
Ms. Davis felt like Officer Parrish was “racially motivated to
stop [her].” Ms. Davis thought that Officer Parrish targeted her
because she lived in an “old black neighborhood” that was “crime
ridden.” She explained that “it was dark” out and that Officer Par-
rish “couldn’t tell who was driving [her] vehicle at first.” Ms. Davis
thought that Officer Parrish followed her “figuring [she] was going
into a drug area.”
Ms. Davis immediately filed a complaint with the police de-
partment because Officer Parrish “was very unprofessional,” har-
assed her, and belittled her. Ms. Davis wasn’t surprised to learn
that Officer Parrish had gotten “into a scuffle with a civilian” and
died.
On cross-examination, Ms. Davis admitted that she had a
“bad attitude” and cursed at Officer Parrish when he pulled her
over. When questioned about Officer Parrish’s report that Ms. Da-
vis asked him, “[W]hat are you f***ing white cops doing up here
anyway, why aren’t you down f***ing with your own kind?”, Ms.
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15-15228 Opinion of the Court 31
Davis testified that she was “pretty sure [she] didn’t say that.” Ms.
Davis conceded that, although she had used the “N word” in her
letter to the police department about her encounter with Officer
Parrish, Officer Parrish “never used any racial terms” during the
encounter. She also conceded that Officer Parrish never “physi-
cally intimidated” her—she just “didn’t like [his] attitude.”
Ms. Davis was never contacted by Mr. Udell to testify at
Kearse’s trial or at his resentencing, but she would have been will-
ing and available to testify.
3. Fabian Butler
Fabian Butler, Kearse’s maternal cousin, also had a negative
encounter with Officer Parrish. On his way home one night, Mr.
Butler stopped to talk to some friends at a street corner. Mr. Butler
didn’t want to be “affiliated with what [they were] doing,” so he
kept walking home.
By the time he had gotten about ten to fifteen steps away
from the corner, a police car pulled up, and the officer—who Mr.
Butler later learned was Officer Parrish—said to stop. Mr. Butler
kept walking and assumed that Officer Parrish was talking to the
people on the corner. Mr. Butler stopped when he heard a pistol
cocking.
Officer Parrish pointed his pistol at Mr. Butler and told him
to “shut up” after Mr. Butler asked what he had done wrong. Of-
ficer Parrish “made open threats” and said, “I’m the type of officer
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32 Opinion of the Court 15-15228
I’m gonna do bodily harm to you and put you in jail and put you
in a holding cell and don’t let nobody see you.”
Mr. Butler did not make a complaint against Officer Parrish
after the incident because he did not know he could file complaints
against police officers. Mr. Butler was not asked to testify at either
Kearse’s trial or resentencing but would have been willing to testify
at both had he been asked to do so.
4. Charles Pullen
Charles Pullen testified about an encounter with Officer Par-
rish that occurred while he was walking home one day. Officer
Parrish mistook Mr. Pullen for his brother and handcuffed Mr. Pul-
len to a tree, where red ants started biting him. Mr. Pullen told
Officer Parrish ants were biting him, but Officer Parrish said that
he didn’t “give a damn.” Mr. Pullen was handcuffed to the tree for
about five to ten minutes. The ant bites on Mr. Pullen’s leg got
infected, and he had to take medications.
On cross-examination, Mr. Pullen confirmed that he had
been “arrested twenty times” before 1991 and had been in and out
of jail. Mr. Pullen conceded that he never filed a complaint against
Officer Parrish after the incident.
Mr. Udell contacted Mr. Pullen before Kearse’s trial but did
not ask him to testify. Mr. Pullen would’ve been willing to testify
at Kearse’s trial and resentencing had he been asked to do so.
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15-15228 Opinion of the Court 33
5. Eric Jones
Eric Jones testified that he had multiple negative encounters
with Officer Parrish. One time, Mr. Jones was pulled over by a
female officer who told him to stay in his car while she waited for
another officer to arrive. When Officer Parrish arrived, Mr. Jones
got out of his car. Officer Parrish immediately “became extremely
authoritative” and demanded that Mr. Jones get in his car.
Officer Parrish and the female officer asked him to sign a
ticket that they had written. Mr. Jones said that he couldn’t read
the ticket because it was dark and he asked to read it in the light.
Officer Parrish told Mr. Jones that he didn’t need to know what the
ticket said and that he didn’t have the right to read it. As Mr. Jones
opened his door to get in the light and read the ticket, Officer Par-
rish got directly in Mr. Jones’s face, and Mr. Jones could “feel that
[Officer Parrish] wanted [Mr. Jones] to just do something to pro-
voke him.” Mr. Jones felt threatened and got back in his car.
Mr. Jones drove away but, “within minutes” of leaving, Officer Par-
rish pulled him over. Mr. Jones rolled his car window down four
inches and didn’t say anything because he felt that he was in dan-
ger. Officer Parrish told Mr. Jones he was “tailgating” and wrote
him a ticket.
Three weeks later, Officer Parrish drove alongside Mr. Jones
and yelled out the window for him to pull over. Officer Parrish
wrote Mr. Jones another ticket. After this encounter, Mr. Jones
filed a complaint with the Fort Pierce Police Department. Mr.
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34 Opinion of the Court 15-15228
Jones “wasn’t surprised a bit” when he found out that Officer Par-
rish had been killed.
On cross-examination, Mr. Jones admitted that he’d had
problems with the Fort Pierce Police Department before his en-
counter with Officer Parrish, but “really d[idn’t] recall” whether he
had reported that he “believe[d] [he was] being picked on by the
Fort Pierce Police Department.” Mr. Jones testified that he
“d[idn’t] recall” whether he’d been speeding when the female of-
ficer pulled him over but admitted that he’d been tailgating when
Officer Parrish pulled him over the first time. Mr. Jones also testi-
fied that he challenged the ticket that Officer Parrish issued him for
tailgating but that he was “found guilty” because “you always lose
in traffic court with a patrol officer.” And Mr. Jones testified that
Officer Parrish “didn’t make any threats against [him].”
Mr. Jones met with Mr. Udell before Kearse’s trial but he
didn’t want to testify. Mr. Jones was subpoenaed to appear at
Kearse’s resentencing but said that his testimony “wouldn’t [have]
happened” and, in any event, he wasn’t asked to testify. 4
4
Kearse also called two investigators to testify about their conversations with
Pastor James Newton. According to the investigators, Pastor Newton knew
Officer Parrish from church and thought that Officer Parrish “had a hot tem-
per,” “had a reputation for provoking people at traffic stops,” “pushed the en-
velope in every situation,” was “racist,” “[b]igoted[,] and ignorant,” and “used
derogatory slurs,” including the N-word. The state postconviction court de-
clined to consider the evidence of Pastor Newton’s comments about Officer
Parrish because the comments were “inadmissible hearsay.” Kearse does not
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15-15228 Opinion of the Court 35
6. Mr. Udell
Mr. Udell testified that he filed a formal demand for discov-
ery with the Fort Pierce Police Department before Kearse’s resen-
tencing. He “specifically only asked for complaints against [Officer]
Parrish,” and the police department gave him six citizen complaints
in response. Mr. Udell asked his investigators to follow up on the
complaints, and he and his investigators located and visited a cou-
ple of the complainants.
The complaints generally suggested that Officer Parrish
“was pretty aggressive in his handling of the citizens in the com-
munity” and that “he was a racist.” Mr. Udell considered having
some complainants testify at trial, but he decided against it because
what they were willing to testify to wasn’t sufficiently helpful. Mr.
Udell thought that “if you’re going to slam a victim, you’d better
be able to pull it off,” so he made an “educated strategy decision”
not to have the complainants testify because “it would[’ve] be[en]
more harmful than helpful.”
Mr. Udell recognized that if he introduced any of the com-
plaints against Officer Parrish, then the state could introduce evi-
dence that the police department found the complaints not credi-
ble. Mr. Udell was also concerned that the state could undermine
the complaints against Officer Parrish by faulting the complainants’
actions. One complainant, for example, told Officer Parrish that he
challenge the exclusion of the evidence of Pastor Newton’s statements on ap-
peal.
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36 Opinion of the Court 15-15228
was arrested for murder and had “shot a cop but . . . missed.” An-
other complainant had “called [Officer Parrish] a pinhead and used
the F word,” and the complainant’s wife later described his conduct
as being more offensive than Officer Parrish’s.
Mr. Udell thought that painting the victim as an aggressor
could “backfire” against Kearse, particularly in a capital case. Mr.
Udell understood that the jury wouldn’t place great emphasis on
the citizen complaints against Officer Parrish because police offic-
ers were often subject to complaints. And Mr. Udell knew from
experience that blaming a law enforcement officer for his own
murder would be a poor strategy in Indian River County:
[T]he analysis may have been different if we were in
New York, Philly, Boston, even West Palm Beach.
I’ve tried cases in Indian River County. They’re good
Americans, they’re solid Americans, they believe in
the integrity of law enforcement, and we didn’t be-
lieve we reached the tipping point where we could
convince them that they should think otherwise in
this case.
Although Mr. Udell recognized that a victim-blaming strat-
egy might work in some cases, he didn’t think he had an eviden-
tiary basis to do so in Kearse’s case. Mr. Udell decided not to go
with a vilification strategy because Pendleton, Kearse’s passenger
on the night of the murder, described Officer Parrish as being po-
lite, professional, and friendly. Pendleton had also testified that
Kearse told her Officer Parrish was polite. Moreover, the citations
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15-15228 Opinion of the Court 37
found in Officer Parrish’s car after the murder suggested that he
was going to let Kearse go.
Mr. Udell couldn’t remember if he ever obtained Officer
Parrish’s personnel file. Kearse’s postconviction counsel showed
Mr. Udell the personnel file, which included performance evalua-
tions that said that Officer Parrish “d[id] have a problem at times
with the public on normal every day type problems,” “ha[d] a ten-
dency to get impatient in his dealings with the public,” and tended
to be “excited.”
But the personnel file also contained positive material, in-
cluding a “Memorandum of Commendation” which recognized
Officer Parrish’s heroism in “helping a juvenile that was threaten-
ing suicide and d[e]fus[ing] the situation,” and performance evalu-
ations that rated Officer Parrish’s “meeting and dealing with the
public” as “satisfactory,” described Officer Parrish as “an asset to
the police department” who was “always working a hundred per-
cent on the streets,” and noted that Officer Parrish “donat[ed] time
to serve on the Honor Guard.”
After reviewing Officer Parrish’s personnel file, Mr. Udell
couldn’t say whether he would have done anything differently if he
had gotten it before resentencing. Mr. Udell conceded that the neg-
ative employee evaluations in the personnel file would’ve sup-
ported a blame-the-victim strategy at resentencing. But Mr. Udell
also recognized that the state would’ve rebutted that strategy by
highlighting the positive elements in Officer Parrish’s personnel
file.
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38 Opinion of the Court 15-15228
7. Mr. Norgard
Mr. Norgard testified that he had experience dealing with
cases involving the murder of a police officer and said that in some
cases it would be important to look at the police officer’s personnel
file. Mr. Norgard explained that a police officer’s personnel file’s
importance would depend on its relevancy to the case; in other
words, it would depend on the circumstances of the killing and
whether there was a dispute about the police officer being the ag-
gressor.
The state postconviction court denied Kearse’s motion for post-
conviction relief
After the evidentiary hearing, the state postconviction court
denied Kearse’s motion for postconviction relief. The state post-
conviction court denied Kearse’s ineffective assistance of counsel
claim that Mr. Udell failed to prepare for Dr. Martell’s testimony
because “it [was] apparent from the record that [Mr.] Udell knew
or anticipated the substance of Dr. Martell’s testimony despite not
having deposed Dr. Martell,” and reasoned that Mr. Udell couldn’t
“be held responsible for the ruling just weeks before commence-
ment of the second penalty phase compelling the [s]tate’s mental
health examination of Kearse.” The state postconviction court
concluded that Mr. Udell’s “strategy to proceed without deposing
Dr. Martell [was] reasonable under the circumstances.”
The state postconviction court also denied Kearse’s ineffec-
tive assistance of counsel claim that Mr. Udell failed to present
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15-15228 Opinion of the Court 39
evidence of Officer Parrish’s prior misconduct and difficulties in
dealing with the public. The state postconviction court determined
that Mr. Udell’s “strategy not to pursue the victim vilification de-
fense [was] reasonable” based on: (1) Mr. Udell’s “consideration of
alternatives”; (2) the absence of “stronger evidence of [Officer] Par-
rish’s prior misconduct”; and (3) the absence of “evidence that [Of-
ficer] Parrish abused Kearse during the traffic stop.” And the state
postconviction court found “no prejudice” in Mr. Udell’s failure “to
obtain and consider [Officer Parrish’s personnel file] prior to mak-
ing a strategic decision not to pursue a strategy vilifying [Officer]
Parrish” because “[a]n evaluation closer to the time of the traffic
stop noted satisfactory job performance” and “the file contained
other positive material concerning [Officer] Parrish’s performance
that the [s]tate could have used to rebut any claims of misconduct.”
Kearse’s appeal of the denial of his motion for postconviction re-
lief to the Florida Supreme Court and his petition to the Florida
Supreme Court for a writ of habeas corpus
Kearse appealed the denial of his motion for postconviction
relief to the Florida Supreme Court. Kearse argued that Mr. Udell
“rendered constitutionally ineffective assistance” during the resen-
tencing because he “fail[ed] to investigate and prepare for testi-
mony of the state’s mental health expert.” Kearse argued that Mr.
Udell “made no effort to investigate” Dr. Martell and he “did not
attempt to verify Dr. Martell’s credentials or ascertain what testi-
mony Dr. Martell was going to offer.” Mr. Udell, Kearse con-
tended, “had no idea what Dr. Martell was going to say” and left
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40 Opinion of the Court 15-15228
“Kearse’s expert witnesses . . . inadequately prepared to rebut Dr.
Martell’s opinions.”
Kearse also argued that Mr. Udell was ineffective “in two re-
spects in failing to investigate and present evidence of Officer Par-
rish’s prior misconduct as a law enforcement officer and Officer
Parrish’s difficulties in dealing with the public.” First, Kearse ar-
gued that “Mr. Udell neglected to obtain Officer Parrish’s complete
personnel file from the Fort Pierce Police Department which indi-
cated numerous deficiencies in Officer Parrish’s job performance
that were relevant to the issues presented in [Kearse’s] case.” And
second, Kearse argued that Mr. Udell “failed to fully investigate the
complaint reports and failed to call any of the complainants to tes-
tify.”
Finally, Kearse petitioned the Florida Supreme Court for a
writ of habeas corpus. Citing Atkins and Roper, Kearse argued that
his “low level of intellectual functioning and mental and emotional
impairments, in combination with his age at the time of the offense
(eighteen and three months),” rendered his death sentence uncon-
stitutional.
The Florida Supreme Court’s affirmance of the denial of Kearse’s
motion for postconviction relief and its denial of his petition for a
writ of habeas corpus
The Florida Supreme Court affirmed the denial of Kearse’s
motion for postconviction relief. See Kearse v. State, 969 So. 2d
976 (Fla. 2007). The Florida Supreme Court concluded that
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15-15228 Opinion of the Court 41
Kearse’s claim that Mr. Udell was ineffective for failing to investi-
gate and prepare for Dr. Martell’s testimony “fail[ed] to meet
Strickland’s requirements”:
The record shows that Dr. Martell examined Kearse
on the Thursday before the resentencing proceedings
began the following Monday, and that [Mr. Udell’s]
motion for a continuance was denied. Upon receipt
of Dr. Martell’s raw data and report, [Mr. Udell] for-
warded these to his experts and consulted with them
about the information. He also consulted the state
attorney regarding [Dr.] Martell’s upcoming testi-
mony. At the postconviction hearing, [Mr. Udell] tes-
tified that despite not having deposed [Dr.] Martell,
he knew what Dr. Martell’s testimony would be re-
garding statutory mitigators, what his test results sup-
posedly revealed, and where [Dr.] Martell’s testi-
mony would differ from his own experts’ testimony.
As evidenced from the foregoing summary, the evi-
dence shows that [Mr.] Udell correctly anticipated
[Dr.] Martell’s testimony. Kearse thus has not
demonstrated anything material that [Mr. Udell] did
not anticipate or could have done differently had he
deposed Dr. Martell.
Id. at 985–86.
The Florida Supreme Court also affirmed the denial of
Kearse’s claim that Mr. Udell was ineffective for failing to investi-
gate and present evidence of Officer Parrish’s prior misconduct and
difficulties dealing with the public. See id. at 986. The Florida
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42 Opinion of the Court 15-15228
Supreme Court found that Mr. Udell “considered this strategy [to
vilify Officer Parrish] and investigated citizen complaints against
Officer Parrish,” but, “after considering several factors—including
the refusal of some witnesses to testify, the lack of substance of
some testimony, and determinations by the Fort Pierce police that
formal complaints against [Officer Parrish] were unfounded—he
ultimately decided not to use this strategy.” Id. The Florida Su-
preme Court also found that Mr. Udell “considered the potential
that the strategy would backfire, especially in light of the facts, such
as Kearse’s firing thirteen bullets into [Officer Parrish] as [Officer
Parrish] pled for his life and [Pendleton’s] testimony that at all
times Officer Parrish was friendly and polite.” Id. Based on these
findings, the Florida Supreme Court concluded that Mr. Udell’s
“decision not to present this mitigation strategy was reasonable.”
Id.The Florida Supreme Court determined that Kearse was not
prejudiced by Mr. Udell’s failure to obtain Officer Parrish’s person-
nel file because “the evidence at the postconviction hearing
showed that any evidence in the file supporting the vilification mit-
igation could have been countered at trial by other evidence in it
of Officer Parrish’s good reports and commendations.” Id.Finally, the Florida Supreme Court denied Kearse’s petition
for a writ of habeas corpus because his death penalty didn’t violate
his Eighth Amendment rights under Atkins and Roper:
[Kearse] argues that because of his age, low level of
intellectual functioning, and mental and emotional
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15-15228 Opinion of the Court 43
impairments he cannot be executed under Atkins . . . ,
which prohibited execution of people with mental re-
tardation. However, Kearse’s own expert at the re-
sentencing testified that he was not mentally re-
tarded, and he presented no evidence at his postcon-
viction hearing that he was. Thus, his sentence is not
unconstitutional under Atkins.
Next, he argues that because he was only eighteen
years and three months old at the time of the crime
and had low level intellectual functioning and mental
and emotional impairments, he cannot be executed
under Roper . . . . Roper prohibited execution of any
defendant who was under age eighteen at the time of
the crime. Accordingly, Kearse does not qualify for
exemption from execution under Roper.
Id. at 991–92 (citation omitted).
Federal Postconviction Relief
After the Florida Supreme Court affirmed the denial of his
motion for postconviction relief and denied his petition for a writ
of habeas corpus, Kearse filed a 28 U.S.C. section 2254 petition in
the Southern District of Florida. Kearse argued that the Florida
Supreme Court unreasonably applied Strickland in affirming the
denial of his claims that Mr. Udell was ineffective at resentencing
because Mr. Udell: (1) failed to “investigate and prepare” for Dr.
Martell’s testimony; and (2) failed to “investigate and present evi-
dence of Officer Parrish’s prior misconduct and difficulties dealing
with the public.” Kearse also argued that the Florida Supreme
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44 Opinion of the Court 15-15228
Court unreasonably applied Atkins and Roper in determining that
his death sentence was not cruel and unusual because his “low level
of intellectual functioning and mental and emotional impairments,
in combination with his age at the time of the offense (eighteen and
three months), render[ed] him categorically less culpable than the
average criminal.”
The district court denied Kearse’s section 2254 petition. It
reviewed de novo his claim that Mr. Udell was ineffective for failing
to investigate and prepare for Dr. Martell’s testimony. The district
court reviewed this claim de novo, rather than under the Antiter-
rorism and Effective Death Penalty Act of 1996, because, it con-
cluded, the claim failed even under the harder-to-meet de novo
standard. Applying de novo review, the district court denied this
claim because Mr. Udell’s performance didn’t prejudice Kearse.
The district court reasoned that there was “little evidence” that the
“testimony from additional experts” at the postconviction hearing
“would have added anything additional to the penalty phase to
which Dr. Lipman or Dr. Petrilla did not already testify.” Thus, the
district court “f[ound] that there was not a reasonable probability
of a different result” “[g]iven the strong aggravation evidence pre-
sented that was in comparison with the mitigation evidence that
was presented and could have been presented had [Mr. Udell] not
rendered a deficient performance.”
The district court also denied Kearse’s claim that Mr. Udell
was ineffective for failing to investigate and present evidence of Of-
ficer Parrish’s prior misconduct and difficulties dealing with the
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15-15228 Opinion of the Court 45
public. The district court concluded that the Florida Supreme
Court did not unreasonably apply Strickland in finding that Mr.
Udell made a strategic decision not to vilify Officer Parrish because
“[t]he record is clear that Mr. Udell viewed not calling the citizen
complainant witnesses to the stand as a strategic one.” And, the
district court wrote, the Florida Supreme Court did not unreason-
ably apply Strickland in concluding that Mr. Udell’s strategic deci-
sion was reasonable because Mr. Udell made the decision based on
his and his investigators’ interviews of the witnesses and his deter-
mination that their testimony “would[’ve] be[en] more harmful
than helpful.” The district court also concluded that Kearse did not
show that the Florida Supreme Court unreasonably applied Strick-
land by determining that Mr. Udell’s failure to obtain Officer Par-
rish’s personnel file didn’t prejudice Kearse. That’s because Kearse
“offered no evidence of what or how law enforcement [officers]
would have testified at trial had Mr. Udell subpoenaed Officer Par-
rish’s personnel file.”
Finally, the district court denied Kearse’s claim that his death
sentence was cruel and unusual because of his low level of intellec-
tual functioning, his mental and emotional impairments, and his
age at the time of the offense. The district court concluded that the
Florida Supreme Court didn’t unreasonably apply Atkins and
Roper in rejecting Kearse’s constitutional challenge to his death
sentence because “there [was] no clearly established federal law
which provide[d] that it would be cruel and unusual punishment
for someone who is close in age to that of a juvenile and close in
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46 Opinion of the Court 15-15228
intelligence quotient to someone with mental retardation to be
sentenced to death.”
Kearse sought leave to appeal, and the district court granted
a certificate of appealability on the issue of whether Mr. Udell was
ineffective “due to his failure to investigate and prepare for testi-
mony of the [s]tate’s mental health expert.” We later expanded the
certificate to include whether Mr. Udell “unreasonably failed to in-
vestigate and present evidence of Officer Parrish’s prior miscon-
duct and difficulties dealing with the public” and whether Kearse’s
death sentence “constitutes cruel and unusual punishment in vio-
lation of the Eight and Fourteenth Amendments to the United
States Constitution.”
STANDARD OF REVIEW
We review a district court’s denial of a section 2254 petition
de novo. Smith v. Comm’r, Ala. Dept’ of Corr., 924 F.3d 1330, 1336
(11th Cir. 2019). Under the Antiterrorism and Effective Death Pen-
alty Act, federal courts may not grant a section 2254 petition on any
claim that was adjudicated on the merits in state court unless the
state court’s adjudication “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” or “was based
on an unreasonable determination of the facts in light of the evi-
dence presented in the [s]tate court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2). “[W]e must presume the state court’s factual find-
ings to be correct unless the petitioner rebuts that presumption by
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15-15228 Opinion of the Court 47
clear and convincing evidence.” DeBruce v. Comm’r, Ala. Dep’t
of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (citing 28 U.S.C.
§ 2254(e)(1)); see Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277,
1287 (11th Cir. 2012) (“[O]ur review of findings of fact by the state
court is even more deferential than under a clearly erroneous
standard of review.” (quotation omitted)).
Our focus under section 2254(d) is on the “last reasoned”
state court decision. McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252,
1261 n.12 (11th Cir. 2009). The question is not whether we believe
that decision was “incorrect” but whether the decision “was unrea-
sonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). A state court’s decision is reasonable “so
long as fairminded jurists could disagree on the correctness of the
. . . decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quo-
tation omitted). “If this standard is difficult to meet, that is because
it was meant to be.” Id. at 102. “[E]ven a strong case for relief does
not mean the state court’s contrary conclusion was unreasonable.”
Id. “Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.” Id.at 102–03 (quotation omitted). To obtain relief, “a state prisoner
must show that the state court’s ruling on the claim being pre-
sented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law be-
yond any possibility for fairminded disagreement.” Id. at 103.
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48 Opinion of the Court 15-15228
DISCUSSION
Our review is limited to the three issues in Kearse’s certifi-
cate of appealability. Murray v. United States, 145 F.3d 1249, 1251
(11th Cir. 1998) (“[I]n an appeal brought by an unsuccessful habeas
petitioner, appellate review is limited to the issues specified in the
[certificate of appealability].”). First, we explain why the Florida
Supreme Court did not unreasonably apply Strickland in affirming
the denial of Kearse’s claim that Mr. Udell was ineffective for failing
to investigate and prepare for Dr. Martell’s testimony. Second, we
explain why the Florida Supreme Court did not unreasonably ap-
ply Strickland in affirming the denial of Kearse’s claim that Mr.
Udell was ineffective for failing to investigate and present evidence
of Officer Parrish’s prior misconduct and difficulties dealing with
the public. And third, we explain why the Florida Supreme Court
did not unreasonably apply Atkins and Roper in denying Kearse’s
Eighth Amendment claim that his death sentence was cruel and
unusual because he had low-level intellectual functioning, mental
and emotional impairments, and was eighteen years old when he
murdered Officer Parrish.
Kearse’s Claim That Mr. Udell Was Ineffective in Investigating
and Preparing for Dr. Martell’s Testimony
As to Kearse’s claim that Mr. Udell was ineffective for failing
to investigate and prepare for Dr. Martell’s testimony, the Florida
Supreme Court concluded that Mr. Udell was not deficient because
“the evidence show[ed] that [he] correctly anticipated
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15-15228 Opinion of the Court 49
[Dr.] Martell’s testimony.” Kearse, 969 So. 2d at 986. And the Flor-
ida Supreme Court concluded that there was no prejudice to
Kearse because he had “not demonstrated anything material that
[Mr. Udell] did not anticipate or could have done differently had he
deposed Dr. Martell.” Id. Kearse argues that the Florida Supreme
Court unreasonably applied Strickland’s performance and preju-
dice prongs.
Strickland
Under Strickland, “[a] petitioner asserting a claim of ineffec-
tive assistance of counsel must demonstrate both deficient perfor-
mance and prejudice—that counsel’s performance ‘fell below an
objective standard of reasonableness’ and that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Hitchcock v. Sec’y,
Fla. Dep’t of Corr., 745 F.3d 476, 485 (11th Cir. 2014) (quoting
Strickland, 466 U.S. at 687–88). “[T]he failure to demonstrate ei-
ther deficient performance or prejudice is dispositive of the claim
against the petitioner,” and “there is no reason for a court deciding
an ineffective assistance claim to address both components of the
inquiry if the defendant makes an insufficient showing on one.”
Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir.
2009) (alteration adopted) (quoting Strickland, 466 U.S. at 697).
The performance inquiry is “highly deferential,” and courts
must not succumb to the “all too tempting” impulse “to conclude
that a particular act or omission of counsel was unreasonable” after
counsel’s defense “has proved unsuccessful.” Strickland, 466 U.S.
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50 Opinion of the Court 15-15228
at 689. “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of rea-
sonable professional judgment.” Id. at 690. “No absolute rules dic-
tate what is reasonable performance for lawyers.” Chandler v.
United States, 218 F.3d 1305, 1317 (11th Cir. 2000) (citing Strick-
land, 466 U.S. at 688–89). Instead, “the performance inquiry must
be whether counsel’s assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688 (emphasis added). In
other words, if a reasonably competent attorney in counsel’s shoes
could—but not necessarily would—have performed the same, then
the representation was adequate. See White v. Singletary, 972 F.2d
1218, 1220 (11th Cir. 1992) (“We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances, as de-
fense counsel acted at trial.”); see also Harrington, 562 U.S. at 110(“Strickland does not guarantee perfect representation, only a rea-
sonably competent attorney.” (quotation omitted)); Rompilla v.
Beard, 545 U.S. 374, 381 (2005) (referring to “[a] standard of reason-
ableness applied as if one stood in counsel’s shoes”).
In reviewing a state court’s determination that an attorney’s
performance was not unreasonable, we decide only whether the
state court’s conclusion about reasonableness was itself reasonable.
See 28 U.S.C. § 2254(d)(1). We therefore give “both the state court
and the defense attorney the benefit of the doubt.” Woods v.
Etherton, 578 U.S. 113, 117 (2016) (quotation omitted). In other
words, “because the standards created by Strickland and [sec-
tion] 2254(d) are both highly deferential,” our review is “doubly”
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15-15228 Opinion of the Court 51
deferential “when the two apply in tandem.” Jenkins v. Comm’r,
Ala. Dep’t of Corr., 963 F.3d 1248, 1265 (11th Cir. 2020) (alteration
adopted and quotation omitted).
The prejudice inquiry doesn’t ask whether “the errors had
some conceivable effect on the outcome of the proceeding.” See
Strickland, 466 U.S. at 693. Instead, “the prejudice inquiry asks
‘whether there is a reasonable probability that, absent the errors,
the sentencer—including an appellate court, to the extent it inde-
pendently reweighs the evidence—would have concluded that the
balance of aggravating and mitigating circumstances did not war-
rant death.’” Hitchcock, 745 F.3d at 485 (quoting Strickland, 466
U.S. at 695).
Deficiency
Kearse argues that the Florida Supreme Court unreasonably
applied Strickland’s performance prong because Mr. Udell:
(1) didn’t depose Dr. Martell, didn’t attend Dr. Martell’s evaluation
of Kearse, and thus “had no idea what Dr. Martell was going to
say”; and (2) didn’t adequately prepare Kearse’s expert witnesses to
rebut Dr. Martell’s opinions. But we can’t say that the Florida Su-
preme Court’s conclusion that Mr. Udell performed reasonably un-
der the circumstances is beyond any possibility for fairminded dis-
agreement.
The record shows that, with the limited time the state trial
court gave him to prepare, Mr. Udell investigated Dr. Martell’s tes-
timony and knew what he was going to say at resentencing. Mr.
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52 Opinion of the Court 15-15228
Udell testified that he knew what Dr. Martell was going to say ei-
ther because he read Dr. Martell’s report or because he had infor-
mal conversations with Dr. Martell or the state attorney before
Kearse’s resentencing. Dr. Martell also thought that he and Mr.
Udell might’ve had “an informal conversation about the scope of
[his] testimony before [he] took the stand.” And Mr. Udell said that
he would’ve investigated Dr. Martell’s background by “ask[ing] the
lawyers that [he] kn[e]w who had been doing this kind of work for
many years” if they knew of Dr. Martell. Mr. Udell also attended
Dr. Martell’s examination of Kearse and only left after Dr. Martell
said that he preferred to do the examination alone with Kearse. Mr.
Udell sent the results of Dr. Martell’s examination to Kearse’s ex-
perts and Mr. Udell “knew going into trial exactly what Dr. Martell
was going to say as to which statutory aggravators and/or mitiga-
tors existed, and what his test results supposedly revealed, and
where he disagreed with Dr. Petrilla.”
In addition to Mr. Udell’s testimony at the postconviction
hearing, his cross-examination of Dr. Martell at resentencing
showed that Mr. Udell knew what Dr. Martell was going to say.
For example, Mr. Udell was ready to challenge Dr. Martell’s opin-
ion that Kearse didn’t have fetal alcohol effect by getting Dr. Mar-
tell to admit that a mother drinking alcohol while pregnant could
cause significant detrimental effects on her child and lead to brain
dysfunction. He drove that point home by having Dr. Martell ad-
mit that, if his wife were pregnant, he wouldn’t want her to drink
alcohol like Kearse’s mother had. Mr. Udell also highlighted that
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15-15228 Opinion of the Court 53
Dr. Martell hadn’t studied the effects of alcohol on animals or prac-
ticed neuropharmacology.
Mr. Udell was also ready to challenge Dr. Martell’s opinion
that Kearse was capable of conforming his conduct to the require-
ments of the law by: (1) getting Dr. Martell to admit that he
“hadn’t thought about” when Kearse had formed the intent to kill
Officer Parrish; and (2) highlighting facts that contradicted Dr.
Martell’s opinion that Kearse was determined to avoid arrest—in-
cluding that Kearse was unarmed when Officer Parrish pulled him
over and that Kearse confessed that he killed Officer Parrish as soon
as he met with police.
And Mr. Udell prepared Kearse’s expert witnesses to rebut
Dr. Martell’s opinions. Despite the state trial court’s denials of his
motions to continue resentencing and the fact that he only had the
data from Dr. Martell’s examination for three days before resen-
tencing, Mr. Udell gave Dr. Martell’s data to his experts who pro-
vided testimony that rebutted Dr. Martell’s opinions. For example,
Mr. Udell used Dr. Lipman to relay Dr. Levine’s opinion that
Dr. Martell’s test results showed that Kearse’s intellectual function-
ing was not where it should be. Mr. Udell also used Dr. Lipman to
rebut Dr. Martell’s opinion that Kearse was malingering by relay-
ing Dr. Friedman’s opinion that Kearse’s F Scale results did not
show that Kearse was malingering. And Mr. Udell similarly used
Dr. Petrilla’s opinion that Kearse’s elevated F Scale did not indicate
malingering to rebut Dr. Martell’s opinion that Kearse was malin-
gering. As the state postconviction court noted, it was “evident . . .
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54 Opinion of the Court 15-15228
from Dr. Petrilla’s and Dr. Lipman’s testimony during [resentenc-
ing] that [Mr.] Udell anticipated that Kearse’s personality profile
would be at issue, particularly with respect to any indication of ma-
lingering.”
Kearse contends that Mr. Udell’s decision not to depose Dr.
Martell and to instead rely on informal conversations with Dr. Mar-
tell or the state attorney “can hardly suffice for the purposes of de-
fending a capital case” and “[was] not a strategy.” But there is no
categorical rule requiring defense attorneys to depose a witness in
a criminal case. Neither Alabama5 nor Georgia 6 routinely permit
5
“There is no constitutional right to discovery in a criminal case in Alabama.”
Ex parte State, 287 So. 3d 384, 394 (Ala. 2018) (quotation omitted). Deposi-
tions may be taken in criminal cases only by court order under “exceptional
circumstances” pursuant to a motion of the party offering the witness, Ala. R.
Crim. P. 16.6(a); see also Ala. Code § 12-21-264, or by agreement of the parties
and with consent of the court, Ala. R. Crim. P. 16.6(g).
6
In Georgia, “[n]o broad right of discovery exists . . . in criminal cases; the
common law recognized no right of discovery in such cases, and it has been
held that unless introduced by appropriate legislation, the doctrine of discov-
ery is a complete and utter stranger to criminal procedure.” See Sears v. State,
356 S.E.2d 72, 76 (Ga. Ct. App. 1987) (quotation omitted), overruled on other
grounds by State v. Lane, 838 S.E.2d 808 (Ga. 2020). Although criminal de-
fendants have a right to interview a state witness before trial, that right is sub-
ject to the witness’s consent. See id. Depositions may be taken in criminal
cases only by court order under certain limited circumstances, see Ga. Code
Ann. § 24-13-130, or by agreement of the parties and with consent of the court,
see id. § 24-13-138; see also Evans v. State, 503 S.E.2d 344, 346–37 (Ga. Ct. App.
1998) (“The General Assembly has prohibited trial courts from ordering dep-
ositions in criminal cases except in several specific situations . . . .”).
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15-15228 Opinion of the Court 55
depositions in criminal cases, and we don’t understand Kearse to
argue that every criminal defense attorney in those states provides
ineffective assistance of counsel. As Kearse’s own expert testified,
the decision to depose the state’s expert would be “within the tac-
tical and strategic province of the attorney” and “would vary from
case to case.” Kearse’s expert also said that an attorney could de-
cide against deposing an expert because there may be things “you
don’t want the other side to know about.”
That was Mr. Udell’s strategy here. Mr. Udell explained that
he was a “firm believer of doing very little discovery on the record
in the presence of the [s]tate [a]ttorney” because “[e]very time you
take a deposition, they learn one thing about your case that but for
your deposition they wouldn’t have known.” So, instead of depos-
ing Dr. Martell, Mr. Udell learned what Dr. Martell was going to
say by speaking informally with the state attorney or Dr. Martell,
talking with lawyers in the community, and consulting his experts.
And by not taking the deposition, he avoided divulging details
about the defense. We can’t say that no fairminded jurist could
conclude, as the Florida Supreme Court did, that Mr. Udell reason-
ably decided not to depose Dr. Martell. See Messer v. Florida, 834
F.2d 890, 896–97 (11th Cir. 1987) (concluding that defense counsel’s
decision not to depose the pathologist who performed an autopsy
on the victim wasn’t “outside the wide range of professionally com-
petent assistance” where “[t]he defense counsel testified in state
court that he had full access to the prosecutor’s files, which pre-
sumably included the pathologist’s report” (quotation omitted));
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56 Opinion of the Court 15-15228
Turner v. Williams, 35 F.3d 872, 898 (4th Cir. 1994) (concluding
that defense counsels’ failure to depose the state’s witnesses wasn’t
deficient where, “from their conversations with the prosecutor,
[defense counsel] were aware of the substance of the witnesses’ an-
ticipated testimony”), overruled on other grounds by O’Dell v.
Netherland, 95 F.3d 1214 (4th Cir. 1996); Eggleston v. United
States, 798 F.2d 374, 376 (9th Cir. 1986) (“A claim of failure to in-
terview a witness may sound impressive in the abstract, but it can-
not establish ineffective assistance when the person’s account is
otherwise fairly known to defense counsel.” (quoting United States
v. Decoster, 624 F.2d 196, 209 (D.C. Cir. 1976) (en banc))).
Kearse also asserts that Mr. Udell “did not attend Dr. Mar-
tell’s evaluation of Kearse, despite having argued [to the state trial
court] that it was necessary to do so.” But Kearse’s expert testified
that whether to attend the state’s expert’s evaluation “would be a
tactical and strategic decision by the attorney.” And Mr. Udell did
attend Dr. Martell’s examination of Kearse. Dr. Martell told Mr.
Udell that he preferred to conduct the examination alone with
Kearse. Mr. Udell honored that request, but only after he got Dr.
Martell to question Kearse about the facts of the murder so that
Mr. Udell could object on the record to that part of the examina-
tion.
Finally, Kearse argues that Mr. Udell failed to adequately
prepare his expert witnesses to rebut Dr. Martell’s opinions. But,
as we’ve already explained, the record shows that Mr. Udell
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15-15228 Opinion of the Court 57
prepared Dr. Lipman and Dr. Petrilla to rebut Dr. Martell’s opinion
that Kearse was malingering.
Under our “doubly” deferential standard of review, we can’t
say that the Florida Supreme Court unreasonably concluded that
Mr. Udell’s performance was reasonable under the circumstances.
See Jenkins, 963 F.3d at 1265. Because the Florida Supreme Court
did not unreasonably apply Strickland’s performance prong, we
don’t need to address the prejudice prong because Kearse’s failure
to show deficient performance is “dispositive.” Windom, 578 F.3d
at 1248; see Ledford v. Warden, Ga. Diagnostic Prison, 975 F.3d
1145, 1160 (11th Cir. 2020) (“We cannot . . . disturb the state habeas
court’s conclusion that trial counsel’s performance was not defi-
cient, and we have no need to consider whether counsel’s actions
prejudiced [the petitioner’s] defense.”).
Kearse’s Claim That Mr. Udell Was Ineffective in Failing to
Investigate and Present Evidence of Officer Parrish’s Prior
Misconduct and Difficulties Dealing with the Public
As to Kearse’s claim that Mr. Udell was ineffective for failing
to investigate and present evidence of Officer Parrish’s prior mis-
conduct and difficulties dealing with the public, the Florida Su-
preme Court concluded that Mr. Udell’s decision not to vilify Of-
ficer Parrish was a reasonable strategic choice and that Kearse had
“not demonstrated prejudice from [Mr. Udell’s] failure to obtain
the personnel record.” Kearse, 969 So. 2d at 986. Kearse argues
that Mr. Udell was “deficient in two respects”: (1) he failed to in-
vestigate all of the complaints against Officer Parrish and to call any
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58 Opinion of the Court 15-15228
witnesses who had filed complaints to testify about their negative
experiences with Officer Parrish; and (2) he “neglected to obtain
Officer Parrish’s complete personnel file,” which “indicated nu-
merous deficiencies in Officer Parrish’s job performance that were
relevant to the issues presented in Kearse’s case.” The Florida Su-
preme Court decided the first part of this challenge on Strickland’s
performance prong and the second part on the prejudice prong.
See id. We conclude that the Florida Supreme Court didn’t unrea-
sonably determine that Mr. Udell made an informed strategic deci-
sion not to call citizen complainants to testify, and that Kearse
wasn’t prejudiced by Mr. Udell’s failure to obtain Officer Parrish’s
personnel file.
Mr. Udell’s failure to investigate and present evidence of citizen
complaints against Officer Parrish
Kearse argues that Mr. Udell “tried to pass his negligence [in
not presenting evidence of citizen complaints against Officer Par-
rish] as a ‘strategy decision.’” According to Kearse, Mr. Udell “did
not have the information necessary to make a ‘strategic decision’
to abandon this defense” because he “fail[ed] to investigate and pre-
sent evidence of several formal complaints against Officer Parrish,
and others who [Officer Parrish] had threatened but did not make
formal complaints.” But it wasn’t unreasonable for the Florida Su-
preme Court to find that Mr. Udell made an informed strategic de-
cision. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)
(en banc) (“Which witnesses, if any, to call, and when to call them,
is the epitome of a strategic decision, and it is one that we will
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15-15228 Opinion of the Court 59
seldom, if ever, second guess.”). That’s exactly what Mr. Udell tes-
tified to: that he had made an “educated strategy decision.” And
Kearse has failed to prove—let alone by clear and convincing evi-
dence—that the Florida Supreme Court’s determination was un-
reasonable or incorrect. See 28 U.S.C. § 2254(d)(2), (e)(1); Kim-
brough v. Sec’y, DOC, 565 F.3d 796, 804 (11th Cir. 2009) (“[A] state
court’s determination that a decision of counsel is ‘tactical’ is a
question of fact that we review under a clear and convincing evi-
dence standard.”).
Mr. Udell investigated the citizen complaints and decided
the evidence was unhelpful. Mr. Udell requested and received cop-
ies of citizen complaints that had been filed against Officer Parrish
and he and Investigator Evans interviewed some of the citizens
who had negative encounters with Officer Parrish. For example,
Mr. Pullen and Mr. Jones testified that they met with Mr. Udell be-
fore Kearse’s trial. But Mr. Pullen had never filed a complaint
against Officer Parrish, had been “arrested twenty times,” and had
been in and out of jail. And Mr. Jones said that he “would not have
wanted” to testify in Kearse’s trial. Another complainant had
“called [Officer Parrish] a pinhead and used the F word” and his
wife later described his conduct as being more offensive than Of-
ficer Parrish’s. Mr. Udell recognized that if he introduced any of
the complaints, the state would have undermined them by faulting
the complainants’ actions and introducing evidence that the police
department found the complaints not credible.
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60 Opinion of the Court 15-15228
Based on his review of the complaints in the Fort Pierce Po-
lice Department’s file, and having interviewed some of the com-
plainants, Mr. Udell made an “educated strategy decision” not to
have any of the witnesses testify about their encounters with Of-
ficer Parrish because “it would[’ve] be[en] more harmful than help-
ful.” This wasn’t an unreasonable strategic decision because a vili-
fication strategy would’ve been contrary to Mr. Udell’s mitigation
strategy, his understanding of Indian River County jurors’ views on
law enforcement, and the facts and circumstances of Kearse’s case.
First, blaming Officer Parrish would’ve worked against Mr.
Udell’s strategy at resentencing of establishing statutory and non-
statutory mental health mitigation. Mr. Udell rebutted the state’s
closing argument by conceding that no one was to blame other
than Kearse:
[The state] told you a lot about what I’m going to tell
you. You listen to what I have to tell you and see if I
blame anybody. There’s nobody to blame but Billy
Kearse. He’s the only person on trial here. You’re
not going to hear me blame [Kearse’s mother] or
blame the school system or blame [Officer Parrish].
I’m certainly not going to try and minimize his re-
sponsibility. He’s here, isn’t he? He’s been convicted
of first degree murder. The only question is, does he
live the rest of his life in prison or do we execute him?
There’s no minimalizing responsibility, not from me,
I promise you that.
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15-15228 Opinion of the Court 61
Mr. Udell also focused on the reasonableness of Officer Par-
rish’s actions to emphasize how Kearse’s mental disabilities caused
him to react to situations differently than normal people:
No doubt [Officer Parrish] had every right to be mad.
He gave him every chance he could. Let’s think
about where he was coming from and, therefore,
what his attitude and what he was conveying to
[Kearse]. After getting jerked around for about
[twenty] minutes he’d had it. You would too. And I
believe it’s true, I think the evidence supports it, that
he said to [Kearse], get out of the car. What was it . . .
[Pendleton] said he said? If you just tell me that your
license is suspended, I’ll give you a couple citations
and let you go. The normal person would have done
that. But that’s [Kearse]. He don’t [sic] understand.
He doesn’t reason like you do or I do.
Mr. Udell would’ve undermined his strategy of showing that
Kearse murdered Officer Parrish because of Kearse’s severe emo-
tional impairments, poor judgment, brain damage, impulsivity,
and inability to reason abstractly had Mr. Udell tried to shift blame
to Officer Parrish by calling witnesses to testify about their negative
encounters with him. See Tharpe v. Warden, 834 F.3d 1323, 1343
(11th Cir. 2016) (“[Trial counsel] sought to portray Tharpe as a
good guy who made a mistake at an emotionally fraught time but
who nonetheless deserved the jury’s mercy. The efficacy of that
approach may well have been diminished had [trial counsel] simul-
taneously presented testimony portraying Tharpe as an alcoholic
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62 Opinion of the Court 15-15228
with low intellectual functioning and a troubled past. Instead of
crediting Tharpe’s unfortunate circumstances as making him less
culpable in the murder . . . , the jury could have concluded instead
that Tharpe was not willing to accept responsibility for his actions,
thus sinking Tharpe’s credibility and undermining both the good-
character defense and the diminished-capacity defense.”).
Second, Mr. Udell knew from experience that a strategy of
blaming Officer Parrish wouldn’t have played well with the jury.
Mr. Udell understood that jurors in Indian River County were dif-
ferent than jurors in “New York, Philly, Boston, even West Palm
Beach”—they “believe[d] in the integrity of law enforcement” and
wouldn’t be receptive to attacks on Officer Parrish’s character. He
also knew that the jury wouldn’t place great emphasis on the com-
plaints against Officer Parrish because police officers were often
subject to complaints. In other words, Mr. Udell concluded that
blaming Officer Parrish for his own murder was likely to backfire.
See, e.g., Black v. Workman, 682 F.3d 880, 904 (10th Cir. 2012)
(“Any effort by counsel to blame the victims would be as likely to
backfire as to diminish [the defendant]’s culpability in the jury’s
eyes.”); Defazio v. Sweeney, 2019 WL 981646, at *7 (D.N.J. Feb. 28,
2019) (“[R]easonable counsel could have perceived that pursuing
. . . a blame-the-victim strategy[] before the jury could have seri-
ously backfired.”); Howell v. State, 877 So. 2d 697, 703 (Fla. 2004)
(“[A] concern about being perceived as blaming the victim for his
or her own death is a valid reason for declining to introduce partic-
ular evidence.”).
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15-15228 Opinion of the Court 63
And third, Mr. Udell determined that a victim-blaming strat-
egy wasn’t possible under the facts and circumstances of Kearse’s
case. At Kearse’s trial, Pendleton—Kearse’s passenger on the night
of the murder—testified that Officer Parrish said he would let
Kearse go if Kearse gave him his real name and that Officer Parrish
hadn’t abused Kearse “in any way.” Pendleton testified that when
she asked Kearse why he shot Officer Parrish, Kearse “said that his
probation was suspended and the police were looking for him al-
ready.” Mr. Udell could have reasonably concluded that blaming
Officer Parrish wouldn’t have worked because of the evidence that
Officer Parrish wasn’t hostile or abusive toward Kearse. See
Freund v. Butterworth, 165 F.3d 839, 866–69 (11th Cir. 1999) (en
banc) (rejecting the argument that counsel could’ve pursued an al-
ternative strategy of shifting the blame to the codefendant because
the strategy was “not realistic in view of the uncontradicted testi-
mony of the eyewitnesses”); Oliver v. Wainwright, 782 F.2d 1521,
1525 (11th Cir. 1986) (rejecting the argument that counsel could’ve
pursued an alternative strategy of shifting the blame to the code-
fendant—“the alternative strategy . . . was not an option available
to trial counsel because the facts d[id] not support the theory”).
Kearse argues that Mr. Udell was deficient for not “conduct-
ing a complete investigation of Officer Parrish’s conduct.” But Mr.
Udell obtained every citizen complaint that had been filed against
Officer Parrish. After reviewing the complaints, Mr. Udell and In-
vestigator Evans interviewed “some” of those citizens, including
Mr. Jones, who didn’t want to testify, and the citizen who called
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64 Opinion of the Court 15-15228
Officer Parrish a “pinhead” and used the “F word.” Mr. Udell even
contacted Mr. Pullen, who had not filed a complaint with the Fort
Pierce Police Department, to learn about his negative encounter
with Officer Parrish. But Mr. Pullen had been arrested twenty
times, had been in and out of jail, and hadn’t filed a complaint de-
spite claiming to have been handcuffed to a tree and bitten by red
ants. Strickland did not require Mr. Udell to “leave no stone un-
turned and no witness unpursued.” Raulerson v. Warden, 928 F.3d
987, 997 (11th Cir. 2019) (quotation omitted). Strickland, instead,
required a reasonable investigation under the circumstances, see
Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d 1195, 1204–05 (11th
Cir. 2016) (“Counsel’s investigation does not fall below Strickland’s
standard so long as a reasonable lawyer could have decided, under
the circumstances, not to investigate particular evidence.” (altera-
tions adopted and quotation omitted)), and that is what Mr. Udell
did. Once he reviewed every complaint in the Fort Pierce Police
Department’s file, found additional complaining witnesses, and
talked to them about their negative experiences with Officer Par-
rish—in other words, after he conducted a reasonable investigation
under the circumstances—Mr. Udell made a strategic decision not
to go with a blame-the-victim strategy that was inconsistent with
the mental health mitigation, would have tuned out the jury, and
wasn’t supported by the evidence. The Florida Supreme Court did
not unreasonably apply Strickland in determining that Mr. Udell
was not deficient for making that strategic decision. See Nance v.
Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1302 (11th Cir.
2019) (“It is especially difficult to succeed with an ineffective
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15-15228 Opinion of the Court 65
assistance claim questioning the strategic decisions of trial counsel
who were informed of the available evidence.”).
Mr. Udell’s failure to obtain Officer Parrish’s personnel file
Kearse argues that Mr. Udell’s failure to obtain Officer Par-
rish’s personnel file prejudiced him because the evidence it con-
tained would have, “[a]t a minimum, . . . contributed to Kearse’s
mitigation case” and that “there is, at the very least, a reasonable
probability that . . . the result of the proceedings would have been
different.” But the Florida Supreme Court determined that Kearse
wasn’t prejudiced by the failure to get the personnel file because
“any evidence in the file supporting the vilification mitigation
could have been countered at trial by other evidence in it of Officer
Parrish’s good reports and commendations.” Kearse, 969 So. 2d at
986. The Florida Supreme Court’s prejudice determination wasn’t
an unreasonable application of Strickland.
The Florida Supreme Court’s prejudice finding wasn’t un-
reasonable because Officer Parrish’s personnel file would have un-
dermined a blame-the-victim strategy. The personnel file con-
tained evidence that Officer Parrish was an outstanding police of-
ficer. He had a “Memorandum of Commendation,” which recog-
nized Officer Parrish’s heroism in “helping a juvenile that was
threatening suicide and d[e]fus[ing] the situation.” And the person-
nel file had performance evaluations that rated Officer Parrish’s
“meeting and dealing with the public” as “satisfactory,” described
Officer Parrish as “an asset to the police department” who was “al-
ways working a hundred percent on the streets,” and noted that
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66 Opinion of the Court 15-15228
Officer Parrish “donat[ed] time to serve on the Honor Guard.”
Had Mr. Udell obtained the personnel file and introduced it into
evidence, the state would’ve used the positive material about Of-
ficer Parrish to rebut any claims of misconduct.
The Florida Supreme Court’s prejudice determination also
wasn’t unreasonable because the facts of Kearse’s case didn’t fit a
blame-the-victim strategy. As Kearse’s expert testified, a police of-
ficer’s personnel file’s relevance would depend on whether there
was a dispute about the police officer being the aggressor. And
here, there was no evidence that Officer Parrish was the aggressor.
The uncontradicted testimony from Pendleton was that Officer
Parrish hadn’t mistreated Kearse. She testified that Officer Parrish
said he would let Kearse go if Kearse gave him his real name, that
Officer Parrish hadn’t abused Kearse “in any way,” and that Kearse
told her that he shot Officer Parrish because “his probation was
suspended and the police were looking for him already,” not be-
cause of anything Officer Parrish did.
Because the personnel file contained evidence that would’ve
undermined a blame-the-victim strategy, and because there was no
evidence that Officer Parrish mistreated Kearse, the Florida Su-
preme Court didn’t unreasonably apply Strickland when it deter-
mined that there was no reasonable probability of a different result
had Mr. Udell obtained Officer Parrish’s personnel file.
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15-15228 Opinion of the Court 67
Kearse’s Claim That His Death Sentence Constitutes Cruel and
Unusual Punishment in Violation of the Eighth and Fourteenth
Amendments
The Florida Supreme Court concluded that Kearse’s death
sentence was constitutional under Atkins and Roper because he
was neither intellectually disabled nor younger than eighteen at the
time of the murder. Kearse, 969 So. 2d at 981, 990–92. Kearse ar-
gues that the Florida Supreme Court unreasonably applied Atkins
and Roper because it “only viewed this matter in light of numbers”
and “all of[] the Eighth Amendment concerns discussed in Atkins
and Roper are equally applicable to Kearse.” 7 We disagree.
“A decision is ‘contrary to’ clearly established federal law if
the state court applied a rule that contradicts governing Supreme
Court precedent, or if it reached a different conclusion than the Su-
preme Court did in a case involving materially indistinguishable
facts.” James v. Warden, 957 F.3d 1184, 1190 (11th Cir. 2020) (cit-
ing Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). “A state court
decision involves an ‘unreasonable application’ of clearly estab-
lished federal law if the court identifies the correct legal principle
7
Although Kearse argues that the Florida Supreme Court “misconstrued” and
“misse[d] the gravamen” of this claim, he concedes that the claim is subject to
deference under the Antiterrorism and Effective Death Penalty Act. Indeed,
rather than arguing the issue de novo, he specifically argues that the Florida
Supreme Court’s decision was “contrary to and an unreasonable application
of Atkins . . . , Roper . . . , and the Eighth Amendment.” Like Kearse, we focus
only on whether the Florida Supreme Court’s decision was contrary to, or an
unreasonable application of, Atkins and Roper as required by section 2254(d).
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68 Opinion of the Court 15-15228
but applies it unreasonably to the facts before it.” Id. In either case,
the phrase “clearly established federal law” refers to the Supreme
Court’s “holdings.” See Williams, 529 U.S at 412. “In other words,
‘clearly established Federal law’ under [section] 2254(d)(1) is the
governing legal principle or principles set forth by the Supreme
Court at the time the state court renders its decision.” Lockyer v.
Andrade, 538 U.S. 63, 71–72 (2003).
In Atkins, the Supreme Court “held that the Eighth Amend-
ment prohibits the imposition of a death sentence on a defendant
who is ‘mentally retarded.’” Shoop v. Hill, 139 S. Ct. 504, 506
(2019); see also Hill v. Humphrey, 662 F.3d 1335, 1360 (11th Cir.
2011) (en banc) (“Atkins established only a substantive Eighth
Amendment right for the mentally retarded . . . .”). Kearse con-
cedes that he “does not meet the diagnostic criteria for ‘mental re-
tardation’ or ‘intellectual disability’ as understood in Atkins.” And,
although he says that “given his mental impairments, in conjunc-
tion with his youth at the time of the offense, the reasons for ex-
cluding mentally retarded individuals from the death penalty apply
equally to [him],” we’ve explained that “a constitutional rule ex-
empting the ‘functionally mentally retarded’ from execution
would go beyond the holding of Atkins, something this [c]ourt may
not do when reviewing [section] 2254 petitions.” Carroll v. Sec’y,
DOC, 574 F.3d 1354, 1369 (11th Cir. 2009).
In Roper, the Court “held that the Eighth Amendment pro-
hibits capital punishment for those under the age of 18 at the time
of their crimes.” Montgomery v. Louisiana, 577 U.S. 190, 206
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15-15228 Opinion of the Court 69
(2016); see also Loggins v. Thomas, 654 F.3d 1204, 1221–22 (11th
Cir. 2011) (“The holding of Roper is simply that the Eighth and
Fourteenth Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 when their crimes were
committed.” (alteration adopted and quotation omitted)). Kearse
admits that he was over the age of 18 when he murdered Officer
Parrish, but he argues that “all the criteria in Roper apply to him”
and urges us to consider “the spirit of Roper.” But whatever the
“spirit” of Roper may be, “the Supreme Court has held that for [sec-
tion] 2254(d)(1) purposes, only the holdings of its decisions mat-
ter.” Loggins, 654 F.3d at 1224. “A rationale is not a holding any
more than a road is a destination,” and “[b]ecause implications are
not actual holdings, the implications of Supreme Court decisions
cannot clearly establish federal law for [section] 2254(d)(1) pur-
poses.” Id. at 1222, 1224. In short, the Florida Supreme Court cor-
rectly identified the Supreme Court’s holdings in Atkins and Roper
and reasonably applied them to the facts of this case.
This is not a case, as Kearse argues, in which a state court
“unreasonably refuse[d] to extend [a legal] principle to a new con-
text where it should apply.” Williams, 529 U.S. 407. In Atkins, the
Supreme Court drew a bright line at “mental retardation.” See 536
U.S. at 317. In Roper, the Supreme Court drew a bright line at the
age of 18. See 543 U.S. at 574 (“The age of 18 is the point where
society draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death
eligibility ought to rest.”). There was no general legal principle for
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70 Opinion of the Court 15-15228
the Florida Supreme Court to extend because Atkins and Roper es-
tablished categorical rules. See Graham v. Florida, 560 U.S. 48, 60–
61 (2010) (citing Atkins and Roper as examples of cases in which
the Supreme Court “has used categorical rules to define Eighth
Amendment standards”). For example, a defendant is either eight-
een years old at the time he commits the murder, or he is not.
Moving the Roper line to eighteen years and a few months does
not extend the categorical rule; it violates it.
We held as much in Barwick v. Secretary, Florida Depart-
ment of Corrections, 794 F.3d 1239 (11th Cir. 2015). There, the
petitioner argued that his death sentence was unconstitutional be-
cause, although he was nineteen-and-a-half years old at the time of
his offense, “his mental functioning was equivalent to that of an
ordinary 11-to-13-year-old person” and “his intellectual functioning
[was] equivalent to that of an ordinary 12-to-14-year-old person.”
794 F.3d at 1257. In other words, he argued that “sentencing to
death one who has reached the chronological age of legal maturity
but who possesses the mental and intellectual capabilities of a ju-
venile would be unconstitutional.” Id. at 1258.
We rejected the petitioner’s argument because he failed to
show that the state court’s denial of his claim was contrary to or an
unreasonable application of clearly established federal law. Id. at
1258–59. In doing so, we agreed with the district court’s analysis
that “the [Supreme Court] ha[d] not extended Roper to mental or
emotional age” and that Roper “drew a bright line” at age 18. Id.
We also agreed that “[a] reasonable application of Roper is that the
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15-15228 Opinion of the Court 71
bright line works the other way, too—executing an individual for
committing a crime after age 18 is not, just because of age, uncon-
stitutional[; m]ental or emotional age may be a mitigating factor,
but it does not necessarily preclude the death penalty.” Id.
Because “state courts are not obligated to extend legal prin-
ciples set forth by the Supreme Court,” we couldn’t say that the
state court unreasonably applied clearly established federal law
when it denied the Barwick petitioner’s claim. Id. at 1259; see also
Shore v. Davis, 845 F.3d 627, 633–34 (5th Cir. 2017) (defendant’s
claim “that his execution would be cruel and unusual in light of his
brain injury” did “not rely on the holding of any Supreme Court
precedent but instead [sought] to extend the reasoning of Atkins
. . . and Roper”). By the same token, we can’t say that the Florida
Supreme Court unreasonably applied clearly established federal
law in denying Kearse’s claim.
We end with a few words about the dissenting opinion. The
dissenting opinion says that we, and the Florida Supreme Court,
have misconstrued Kearse’s Eighth Amendment claim. “The heart
of Kearse’s argument,” the dissenting opinion explains, was a “pro-
portionality claim.” Dissenting Op. at 4. In the dissenting opin-
ion’s view, Kearse argued “for individual, proportionality-based re-
lief, not for a categorical, bright-line exemption based on his age or
intellectual ability.” Id. at 5 n.5.
But Kearse didn’t raise a proportionality claim. He didn’t
raise a proportionality claim in the Florida Supreme Court. And he
didn’t raise one here.
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72 Opinion of the Court 15-15228
In the part of his habeas petition to the Florida Supreme
Court arguing that his death sentence was a cruel and unusual pun-
ishment, Kearse never used the word “proportional” or “propor-
tionality.” See Petition for Writ of Habeas Corpus, Kearse v. State,
969 So. 2d 976 (Fla. 2007) (Nos. SC05–1876, SC06–942), 2006 WL
1463594, at *24–*35. Not once.8 Instead, Kearse argued that his
“low level of intellectual functioning and mental and emotional im-
pairments, in combination with his age at the time of the offense
(eighteen and three months), render[ed] him categorically less cul-
pable than the average criminal.” Id. at *24 (emphasis added and
quotation omitted).
In the part of his initial brief arguing that his death sentence
was a cruel and unusual punishment under the Eighth Amend-
ment, Kearse never used the word “proportional” or any derivative
of it. Not one time.9 Instead, Kearse argued that his “low level of
intellectual functioning and mental and emotional impairments, in
combination with his age at the time of the offense (eighteen and
84 days), render[ed] him categorically less culpable than the
8
Kearse quoted Atkins, once, using the word “proportioned” and cited Roper
for its holding that the death penalty is a “disproportionate” punishment for
juveniles. See Petition for Writ of Habeas Corpus, 2006 WL 1463594, at *26,
*31. But those references are Atkins- and Roper-specific. Neither one of them
argued for a non-categorical holding that it violates the Eighth Amendment to
sentence Kearse to death given the specific facts of this case, which fall outside
the holdings of those two decisions.
9
Kearse cut and pasted the same quote from Atkins and the same description
of Roper’s holding from his habeas petition to the Florida Supreme Court.
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15-15228 Opinion of the Court 73
average criminal.” And, in his reply brief, Kearse didn’t use the
term “proportionality” a single time or any word related to it. Not
even a third cousin. Instead, Kearse argued that the “rationale” of
Atkins and Roper should “extend equally to” him. But we rejected
that argument in Barwick. See Barwick, 794 F.3d at 1259 (“[S]tate
courts are not obligated to extend legal principles set forth by the
Supreme Court . . . .”).
We don’t see how the “heart” of his Eighth Amendment ar-
gument could have been a “proportionality claim,” as the dissent-
ing opinion suggests, when Kearse never uses the word “propor-
tionality.” And we don’t see how the dissenting opinion can say
that Kearse didn’t argue “for a categorical, bright-line exemption
based on his age or intellectual ability.” That’s exactly what he ar-
gued to the Florida Supreme Court and to us: that he is “categori-
cally less culpable than the average criminal” because of his “low
level of intellectual functioning and mental and emotional impair-
ments, in combination with his age at the time of the offense” and
that we should “extend” Atkins and Roper to eighteen-year-olds
with borderline intelligence. And that’s the claim that we, and the
Florida Supreme Court, addressed. The one Kearse actually raised.
In any event, even if Kearse had raised a proportionality
claim, the Florida Supreme Court did not unreasonably apply
clearly established law. The United States Supreme Court has
never held that the death penalty was not a proportional punish-
ment for an eighteen-year-old with borderline intelligence and
emotional problems who, during a traffic stop, takes a police
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74 Opinion of the Court 15-15228
officer’s gun and shoots him thirteen times (while the officer is beg-
ging for his life) because the shooter is on probation and doesn’t
want to go back to jail. Without a clearly established holding from
the United States Supreme Court, there was nothing for the Florida
Supreme Court to unreasonably apply. See Reese, 675 F.3d at 1288(“[I]t is not an unreasonable application of clearly established Fed-
eral law for a state court to decline to apply a specific legal rule that
has not been squarely established by the Supreme Court.” (altera-
tion adopted and quotation omitted)).
CONCLUSION
“Section 2254(d) reflects the view that habeas corpus is a
guard against extreme malfunctions in the state criminal justice sys-
tems, not a substitute for ordinary error correction through ap-
peal.” Harrington, 562 U.S. at 102–03 (quotation omitted and em-
phasis added). There was no extreme malfunction in this case. The
Florida Supreme Court’s application of Strickland, Atkins, and
Roper were not “beyond any possibility for fairminded disagree-
ment.” See id. at 103. Section 2254(d) requires that federal habeas
relief be denied and that we affirm that denial.
AFFIRMED.
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15-15228 WILSON, J., Concurring in part and Dissenting in part 1
WILSON, Circuit Judge, Concurring in part and Dissenting in part:
I concur with the majority on Kearse’s ineffective assistance
claims. 1 But I dissent as to Kearse’s Eighth Amendment claim be-
cause the Florida Supreme Court unreasonably applied clearly es-
tablished federal law. See 28 U.S.C. § 2254(d)(1).
Three justices of the Florida Supreme Court said it best:
“The bottom line is that this is clearly not a death case.” Kearse v.
State, 770 So. 2d 1119, 1138 (Fla. 2000) (Anstead, J., dissenting) (an-
alyzing proportionality under Florida law). The bottom line is the
same under federal law. You need not be an Eighth Amendment
scholar to see why:
[T]he killing resulted from the impulsive act of an
eighteen-year-old [Kearse] who functions on a low
average-borderline intelligence level and has a docu-
mented history of emotional problems. Importantly,
1 However, I am skeptical of the Florida Supreme Court’s application of Strick-
land to the ineffective assistance claim regarding Dr. Daniel Martell. As the
majority notes, Kearse’s counsel chose not to depose Dr. Martell but spoke
informally to Dr. Martell and the state attorney along with other lawyers in
the community and his experts. Although I think no competent counsel with
a 9-day window of opportunity would have failed to depose the only state
mental health expert in a death case that turned on mental health mitigation,
that is not what Strickland requires. Rather, “the performance inquiry must
be whether counsel’s assistance was reasonable considering all the circum-
stances.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Considering
what Strickland requires and our “doubly” deferential standard of review, I
reluctantly concur with the majority on this claim.
USCA11 Case: 15-15228 Date Filed: 08/25/2022 Page: 76 of 79
2 WILSON, J., Concurring in part and Dissenting in part 15-15228
there is no evidence that Kearse set out that night in-
tending to commit any crime, let alone murder. In
fact, he had just picked up a pizza and was returning
home to eat it with friends when this tragic incident
took place.
Id. at 1136.
If that much was clear in 2000, when the Florida Supreme
Court considered the proportionality of Kearse’s sentence under
Florida law, then it was certainly clear in 2007, when the same
court purportedly addressed Kearse’s Eighth Amendment claim.
The court held that Kearse’s death “sentence is not unconstitu-
tional under Atkins” because he is “not mentally retarded,” and
that “Kearse does not qualify for exemption from execution under
Roper” because he was eighteen at the time of his crime. Kearse v.
State, 969 So. 2d 976, 991–92 (Fla. 2007) (per curiam). But—as
Kearse points out—that’s not what he argued, 2 and those two cases
are not the be-all and end-all of the Supreme Court’s Eighth
2 Kearse has consistently and specifically argued that the Florida Supreme
Court misconstrued his state habeas Eighth Amendment claim in a legally sig-
nificant way—unlike the petitioner in Barwick v. Secretary, Florida Depart-
ment of Corrections, 794 F.3d 1239 (11th Cir. 2015) (per curiam). As the State
of Florida notes in a supplemental authority letter, in Barwick, we rejected a
similar Eighth Amendment habeas claim. Id. at 1257–59. But there the peti-
tioner never argued that the Florida Supreme Court misconstrued his petition
at all, much less in a legally significant way. Therefore, our holding that the
Florida Supreme Court did not unreasonably apply clearly established law in
Barwick has no bearing here. See id.USCA11 Case: 15-15228 Date Filed: 08/25/2022 Page: 77 of 79
15-15228 WILSON, J., Concurring in part and Dissenting in part 3
Amendment precedent. Case-by-case proportionality remains the
Eighth Amendment’s polestar.
The court failed to analyze whether Kearse’s death sentence
was proportional or unconstitutionally excessive given the facts of
his case. But it should have. Kearse so argued, and as of 2007, Su-
preme Court precedent called for such an analysis. See, e.g.,
Enmund v. Florida, 458 U.S. 782, 788–801 (1982) (analyzing a death
sentence for proportionality under the Eighth Amendment’s Cruel
and Unusual Punishments Clause, with discussion of retribution
and deterrence); see also Lockyer v. Andrade, 538 U.S. 63, 72–73
(2003) (holding that a “gross disproportionality principle” is clearly
established Eighth Amendment law for analyzing a sentence for a
term of years under § 2254(d)(1)); Solem v. Helm, 463 U.S. 277,
284–303 (1983) (analyzing a sentence of life without possibility of
parole for proportionality under the Eighth Amendment). 3
3 In its supplemental authority letter, the State of Florida draws our attention
to Pulley v. Harris, 465 U.S. 37, 44–51 (1984), and argues that there “the Su-
preme Court explained that a proportionality review is merely an ‘additional
safeguard against arbitrarily imposed death sentences,’ but not one of consti-
tutional necessity.” But the State misapprehends Pulley; in fact, the case
proves my point. Pulley describes two types of proportionality review. Com-
pare id. at 42–43 (describing “traditional” proportionality review “of the ap-
propriateness of a sentence for a particular crime”) with id. at 43–44 (describ-
ing a “different sort” of proportionality review where a court “presumes that
the death sentence is not disproportionate to the crime in the traditional
sense” and “purports to inquire instead whether the penalty is nonetheless un-
acceptable in a particular case because disproportionate to the punishment im-
posed on others convicted of the same crime”). The point of my dissent is that
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4 WILSON, J., Concurring in part and Dissenting in part 15-15228
The majority disagrees that more analysis was required. It
says that Kearse framed his Eighth Amendment claim as a Roper
and Atkins challenge and that the Florida Supreme Court answered
that issue; case closed. The Florida Supreme Court’s synopsis of
Kearse’s arguments would certainly lead one to think that this case
is as simple as that. See Kearse, 969 So. 2d at 991–92. Yet Kearse’s
state petition shows otherwise—it makes clear that the Florida Su-
preme Court’s synopsis is a patently unreasonably narrow charac-
terization of Kearse’s Eighth Amendment argument.4
Contrary to what the majority says, Kearse made a much
broader Eighth Amendment argument than the Florida Supreme
Court said he did. The heart of Kearse’s argument was not Roper
and Atkins; it was proportionality. The thrust of his argument was
that his crime and circumstances do not warrant death. He argued
that neither the penological purpose of deterrence nor retribution
would be served in his case. (And, by my count, he relied on eight
other Supreme Court cases to help make these points—not includ-
ing citations in parentheticals.)
To be sure, Kearse relied on Atkins and Roper heavily. But
those cases were mere vehicles for his proportionality claim,
the former is clearly established federal law, and that Kearse invoked it here—
but only the latter was at issue in Pulley. See id. at 43–44. So, if anything,
Pulley further supports my dissent and disagreement with the State’s position.
4 See Petition for Writ of Habeas Corpus at 24–35, Kearse v. Florida, 969 So.
2d 976 (Fla. 2007) (Nos. SC05–1876, SC06–942), 2006 WL 1463594.
USCA11 Case: 15-15228 Date Filed: 08/25/2022 Page: 79 of 79
15-15228 WILSON, J., Concurring in part and Dissenting in part 5
examples of constitutional reasoning that he says protects him
from execution. In fact, before us, Kearse concedes that he does
not meet the criteria of Atkins’s or Roper’s bright-line rule. Why
would Kearse concede the heart of his state-court argument when
attacking the related state-court decision in federal court? The an-
swer is the simplest one: That was never the heart of his argument.5
“What eighteen-year-old Kearse did was horrible—but his
actions in light of the bizarre circumstances in this case do not war-
rant the ultimate penalty of death.” Kearse, 770 So. 2d at 1138 (An-
stead, J., dissenting). No matter whether the Florida Supreme
Court ultimately agreed with that sentiment in the postconviction
appeal for Kearse’s Eighth Amendment claim, it should have
squarely addressed the claim as it was made and analyzed Kearse’s
sentence for proportionality. Its failure to do so was “objectively
unreasonable.” See Lockyer, 538 U.S. at 75–76. Therefore, I dis-
sent.
5 Certainly, Kearse phrased some analysis in terms of membership in a class
that he argues should be categorically ineligible for death. But at bottom, he
was arguing for individual, proportionality-based relief, not for a categorical,
bright-line exemption based on his age or intellectual ability.