Ronald Clark, Jr. . Attorney General, State of FL , 821 F.3d 1270 ( 2016 )

Case: 14-15022 Date Filed: 04/27/2016 Page: 1 of 48
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15022
________________________
D.C. Docket No. 3:10-cv-00547-BJD-PDB
RONALD W. CLARK, JR.,
Petitioner - Appellant,
versus
ATTORNEY GENERAL, STATE OF FLORIDA,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 27, 2016)
Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.
MARCUS, Circuit Judge:
Case: 14-15022 Date Filed: 04/27/2016 Page: 2 of 48
In this capital case, Ronald Wayne Clark, a state prisoner in Florida
convicted of murder in the 1990 shooting and robbery of Ronald Willis, seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The state trial court imposed a
sentence of death. The judgment was later upheld by the Florida Supreme Court
on direct appeal and again on collateral review. In this habeas petition, Clark
contends that his attorney was ineffective during the penalty phase of his trial, that
the sentencing court failed to consider mitigating evidence, and that the State
violated his due process rights by suppressing material impeachment evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court issued a
lengthy order denying all relief. Having carefully reviewed the record and after
taking oral argument, we affirm.
I.
A.
The essential facts adduced at Clark’s trial revealed the following. On
January 13, 1990, two teenagers walking along a dirt road in rural Duval County,
Florida discovered checks with Ronald Willis’s name on them, a crow bar, false
teeth, and a bloody shirt. Suspecting some sort of wrongdoing, one of the
teenagers told his mother what they had found and she called the police. Officers
arrived at the scene and determined that it appeared to be the site of a violent
crime.
2
Case: 14-15022 Date Filed: 04/27/2016 Page: 3 of 48
Alerted by Willis’s mother that the police had found these items, Willis’s ex-
wife, Debra Willis, and her sister-in-law, Sandra Hardee, began driving around
looking for Ronald Willis when they saw a truck that belonged to Willis parked in
front of the Oasis Motel. They approached the truck and began yelling, demanding
to know where Willis was. A man at the hotel pointed out Ronald Clark and John
David Hatch as the people who had driven the truck. Debra took the keys from the
truck and locked it as Hardee went to the motel’s office to call the police. While
making the call, she heard Debra call for help. Upon exiting the office she saw
Clark attack Debra, apparently trying to take the keys from her. After Debra
kicked him in the groin, Clark tried to run away. Hardee attempted to grab him,
but fell over. She noticed, however, that Clark was wearing Ronald Willis’s boots.
Clark and Hatch ran off before the police arrived. Later, Hardee and Debra
identified Hatch and Clark from photo spreads provided by Detective Jerry
Jesonek, who was investigating the matter.
Hatch was arrested on January 20, 1990. In exchange for a twenty-five-year
prison sentence, he testified against Clark at trial. According to Hatch’s account,
on January 12, he and Clark had decided to walk or hitchhike to Jacksonville to
shoot pool. They brought with them a gun that Hatch had stolen from a house he
was remodeling. He testified that both he and Clark had been drinking and were
under the influence, but that they both knew what was going on around them.
3
Case: 14-15022 Date Filed: 04/27/2016 Page: 4 of 48
Willis stopped to give them a ride and, during the ride, Clark whispered to Hatch
that he planned to steal the truck when they stopped. Hatch asked Willis to stop
the truck so they could buy beer; both Hatch and Clark got out of the truck. Hatch
testified that as he walked toward the back of the truck, Clark fired the stolen gun
seven or eight times into the truck, shooting and killing Willis. Clark then turned
toward Hatch, pointed the weapon at him, and shouted that they had to go. They
got back into the truck and Clark drove away. Hatch was seated on the passenger
side, and Willis was slumped over in the middle, having been shot.
Hatch and Clark drove to a secluded spot where Clark took Willis’s boots
and the money from his pockets, and together they rolled Willis’s body into a
ditch. Hatch and Clark then went to a restaurant and on to Hatch’s ex-wife’s
apartment, where they engaged in some sort of confrontation. Clark and Hatch
later retrieved the body, found cinder blocks in Clark’s parents’ house, tied the
cinder blocks to the body, and threw Willis off the Nassau County Sound Bridge
into the water below. Hatch said they went to an acquaintance’s home the next day
to buy drugs, before ending up at the Oasis Motel where the confrontation with
Debra and Hardee occurred. Hatch and Clark then fled the state, eventually
winding up in South Carolina.
On cross examination, Clark’s attorney confronted Hatch three times with
inconsistent statements he had made on previous occasions. Most significantly,
4
Case: 14-15022 Date Filed: 04/27/2016 Page: 5 of 48
counsel confronted Hatch with remarks he had made to Detective Jesonek that he
had been urinating -- and not simply walking away from the truck -- when he heard
Clark shoot Willis. That statement was made on January 21, 1990, and was
memorialized in a document that now forms part of the basis of Clark’s Brady
claim.
Detective Jesonek testified at some length about the homicide investigation.
Among other things, he took a statement from Hatch after his arrest on January 20,
which largely corresponded to Hatch’s trial testimony, although the statement
differed in describing where Hatch was when he heard the shots; it did not mention
Clark telling Hatch that Clark planned to steal the truck when they stopped; and it
made no mention of Clark having pointed the gun at him after the shooting.
Jesonek also testified about his efforts to convince Clark to return to Florida from
South Carolina. He said that during one conversation with Clark, Clark admitted
to having been involved in the shooting. After Clark was arrested by South
Carolina police and returned to Florida, Jesonek took Clark’s statement. The
statement was substantially the same as Hatch’s in detailing the events as they
transpired that night except that Clark said Hatch was actually the one who shot
Willis. In addition to this role reversal, Clark described where the bullets had
struck the victim’s body and how the victim physically moved upon being shot.
Finally, the prosecution offered testimony from Officers Dolan Thomason
5
Case: 14-15022 Date Filed: 04/27/2016 Page: 6 of 48
and William Brown, who were both involved in transporting Clark during a
separate trial in Nassau County, Florida. Both officers unambiguously testified
that Clark admitted he killed Ronald Willis.
Clark testified in his own defense. He averred that his statement to
Detective Jesonek naming Hatch as the shooter was the truth. In fact, he added, his
back was turned during the actual shooting, but he saw Willis’s wounds when they
dumped Willis’s body off the Nassau County Sound Bridge. He flatly denied
having told Officers Thomason and Brown that he had shot Willis. In closing
argument, Clark’s counsel argued that Hatch was the mastermind and triggerman
behind the crime. After deliberating for just under two and a half hours, the jury
returned a verdict finding Clark guilty of murder in the first degree, under a theory
of felony murder, and guilty of robbery with a firearm.
B.
During the penalty phase of the trial, the prosecution called Lieutenant
Charles Calhoun of the Nassau County Sheriff’s Office. Calhoun testified about
the details surrounding Clark’s previous Nassau County, Florida conviction for the
October 29, 1989 murder of Charles Carter. According to Calhoun, Clark, Carter,
Hatch, and another friend were driving around and Clark tried to get the group lost.
They eventually stopped in a wooded area on County Road 108 and exited the car.
Clark then shot Carter in the chest with a .12 gauge shotgun, and then shot Carter
6
Case: 14-15022 Date Filed: 04/27/2016 Page: 7 of 48
in the head, removed his boots, and rummaged through his pants, recovering about
$11. Clark was convicted and sentenced to death in Nassau County for that crime. 1
After the judgment and sentence from the Nassau County conviction were entered
into evidence, the prosecution rested.
Clark’s counsel, Henry Davis, then asked for a sidebar. He told the trial
court that Clark did not wish to present any mitigating evidence to the jury and did
not wish to testify himself. The trial judge excused the jury and conducted the
following lengthy colloquy in open court:
The Court: Mr. Davis, we were having a discussion at
the bench when you asked to approach the
bench and I just thought it better to go ahead
and ask the jurors to leave. Let’s go ahead
and start over.
Davis: All right. Your Honor, I just wanted to
advise the court that Mr. Clark has decided
not to exercise his right to testify here or to
present other evidence in mitigation. The
court may recall that Mr. Clark was seen by
1
The Florida Supreme Court later overturned Clark’s death sentence for the murder of Charles
Carter after concluding that several aggravating factors had been improperly found. Clark v.
State, 609 So. 2d 513, 514–15 (Fla. 1992). In contrast, the mitigating evidence Clark offered
regarding his alcohol abuse, emotional disturbance, and abused childhood “constitute[d] strong
nonstatutory mitigation.” Id. at 515, 516. “Having found that only one valid aggravating
circumstance exists, and having considered the mitigation established by the record,” the Florida
Supreme Court concluded that the death penalty was “disproportionate when compared with
other capital cases where the Court has vacated the death sentence and imposed life
imprisonment,” and reduced Clark’s sentence to life imprisonment. Id. at 516. Notably, in Clark
v. State (“Clark II”), 35 So. 3d 880, 891 (Fla. 2010), the Florida Supreme Court said that its
decision to reduce Clark’s sentence was based on the absence of aggravating factors, not on any
finding that the trial court improperly rejected the mitigating evidence that had been presented or
that the mitigating evidence would have been sufficient to overcome the aggravating factors had
those factors been supported by the evidence.
7
Case: 14-15022 Date Filed: 04/27/2016 Page: 8 of 48
two psychiatrists, Dr. Miller and Dr.
[Barnard], and he was seen by Dr.
[Macaluso] out of Tallahassee. They all
submitted reports and he knows he can
testify but he would like not to present that
to the jury.
The Court: All right. Mr. Clark, will you please stand,
sir? Mr. Clark, you understand, sir, that this
is as much your hearing as it is their hearing,
do you understand that?
Clark: Yes, sir.
The Court: And do you understand what happened,
what Mr. Davis said, is that correct, is that
you position in the case?
Clark: Yes, sir.
The Court: Okay. And have you had time to think
about this and reflect on it and is this your
desire not to call or present any testimony
that Mr. Davis alluded do?
Clark: Yes, sir.
The Court: In regarding to your own testimony, did you
wish to testify in this matter and tell the
jurors anything about yourself or your past
or your background, or anything about
yourself, or where were you planning to go
from here? Is there anything you want to
tell them?
Clark: No.
The Court: You understand I would give you full
opportunity to have your say if you want to
have your say, that I will give you full
8
Case: 14-15022 Date Filed: 04/27/2016 Page: 9 of 48
opportunity to say whatever you want to say
at this time? I want to make it as clear to
you as I can that this is as much your
hearing as it is the State of Florida’s hearing.
Clark: Yes, sir.
The Court: Do you understand that?
Clark: Yes, sir.
The Court: Okay. And you are feeling all right today?
Clark: Yes, sir.
The Court: Are you having any trouble thinking or is
your reasoning good today?
Clark: Yes, sir.
The Court: Okay. Are you under the influence of any
drugs or alcohol, or anything like that?
Clark: No, I didn’t take none today.
The Court: Okay. And you don’t want any of this
testimony presented, and you, yourself, do
not want to testify or speak to the jury?
Clark: I don’t want the jury to know nothing. I
want Mr. Willis to know that I did not kill
Ronald Willis. That’s all I’ve got to say.
The Court: Okay. Well, you understand, Mr. Clark, that
we are in a little different proceeding at this
time than that.
Clark: Yes, sir.
9
Case: 14-15022 Date Filed: 04/27/2016 Page: 10 of 48
The Court: But this is your one and only opportunity
and I wanted to afford you every
opportunity that I could to say anything that
you wanted to say to these 12 people that are
going to make a recommendation to me and
you do seem to be very coherent and you
seem to have a good frame of mind in my
discussions with you here this morning, but I
wanted to afford you every opportunity that
I could to speak to these people if you so
wanted to.
Clark: I don’t want to.
The Court: Okay. Well, that is your decision and I’m
certainly not going to force you or make you
do something you don’t want to do. I guess
this is something that you have thought
about, you and Mr. Davis. So, I just wanted
to make sure and satisfy myself that you
understood this proceeding that we are
having here today and that this was as much
your proceeding as it was the State’s, and I
would afford you to state anything you or
whatever you want to state if you so desired.
Clark: I don’t have anything to say.
After defense counsel reiterated that it had no further evidence to present
during the penalty phase of the trial, the judge again returned to Clark:
The Court: All right. At this time, Mr. Clark, I don’t
mean to be leaning on you but you realize I
wanted to just double check before we begin
the argument by the State and by Mr. Davis,
I wanted to ask you if you wanted to testify
or speak to the jury?
Clark: No, sir.
10
Case: 14-15022 Date Filed: 04/27/2016 Page: 11 of 48
The Court: All right. I would state that I have talked to
Mr. Clark here this morning and I do find
that he is clear, lucid, and has a clear
understanding of these proceedings, and he
has elected not to speak on his behalf, but I
did want to give you a further opportunity if
you did.
The penalty trial then moved to closing statements. The prosecution argued
that three aggravating factors were present: (1) Clark had previously been
convicted of another capital offense or a felony involving the use of violence to
some person; (2) the crime was committed while he was engaged in the
commission of a robbery; and (3) the crime was committed for financial gain. The
prosecution highlighted the similarities between Clark’s previous Nassau County
homicide conviction and the present crime.
Davis, arguing on behalf of Clark, offered several different lines of attack.
First, he suggested that the evidence in the case was not clear cut, as demonstrated
by the two-and-a-half hours it took the jury to deliberate, and that Clark continued
to hold himself out as an accomplice to Hatch’s killing. He also argued that the
jury should consider that Hatch, whom he claimed was equally culpable, was
sentenced to only 25 years in jail and, therefore, the jury should consider giving
Clark an equivalent sentence. Finally, Davis claimed that the jury should consider
Clark’s youthful age -- he was 21 at the time of the murder -- and his possible
drunkenness as mitigating factors.
11
Case: 14-15022 Date Filed: 04/27/2016 Page: 12 of 48
The trial judge instructed the jury that it could consider the three aggravating
factors argued by the prosecution, but that the second and third factors would
merge into one if the jury found them both. The judge also instructed the jury that
when considering mitigation, it could consider “any aspect of the defendant’s
character and any other circumstances of the offense including the age of the
defendant at the time of the crime.”
After deliberation, the jury recommended by a vote of 11 to 1 that Clark be
sentenced to death.
C.
Before sentencing Clark, the trial court held a Spencer hearing 2 pursuant to
Florida law, affording the parties a final opportunity to argue before the judge
whether the death penalty should be imposed. Although Clark had declined to
present any mitigation evidence to the jury, his counsel presented the trial judge
with a series of reports written by mental health professionals regarding Clark’s
2
In Spencer v. State, 615 So. 2d 688, 690–91 (Fla. 1993), the Florida Supreme Court held:
We contemplated that the following procedure be used in sentencing phase
proceedings. First, the trial judge should hold a hearing to: a) give the defendant,
his counsel, and the State, an opportunity to be heard; b) afford, if appropriate,
both the State and the defendant an opportunity to present additional evidence;
c) allow both sides to comment on or rebut information in any presentence or
medical report; and d) afford the defendant an opportunity to be heard in person.
Second, after hearing the evidence and argument, the trial judge should then
recess the proceeding to consider the appropriate sentence. If the judge
determines that the death sentence should be imposed, then, in accordance with
section 921.141, Florida Statutes (1983), the judge must set forth in writing the
reasons for imposing the death sentence. Third, the trial judge should set a
hearing to impose the sentence and contemporaneously file the sentencing order.
12
Case: 14-15022 Date Filed: 04/27/2016 Page: 13 of 48
troubled background. Testimony from the mental health experts regarding the
findings memorialized in those reports had previously been presented
unsuccessfully as mitigating evidence in Clark’s Nassau County trial.
The reports presented Clark’s extensive history of familial abuse, chemical
dependency, and mental health issues. Dr. Miller’s report detailed Clark’s strained
relationship with his mother, including one instance when she “put a gun to his
head when he was 13 years old and told him that she felt he would be better off
dead and perhaps she would too.” Moreover, Clark reported being molested by his
mother’s female lovers on several occasions, including one brutal and sadistic
experience. Dr. Miller’s report also listed Clark’s previous criminal charges for
sexual battery, grand theft auto, and breaking and entering, and explained that
Clark’s only hobby appeared to be the abuse of drugs and alcohol. The report also
noted that Clark had previously attempted suicide. Dr. Macaluso’s report covered
much of the same ground, including the instances of child abuse. Dr. Macaluso
paid particular attention to Clark’s drug and alcohol use. Both of Clark’s parents
were alcoholics who engaged in extensive physical abuse toward each other.
When Clark lived with his father, he often went without food because his father
had instead spent all of his money on alcohol. Clark himself began drinking
alcohol at the age of five, was actively abusing alcohol by 15, and suffered from
alcoholic blackouts beginning at the age of 19. Clark began using drugs in the
13
Case: 14-15022 Date Filed: 04/27/2016 Page: 14 of 48
seventh grade. Finally, Dr. Barnard’s report included much of the same
information. His report also noted that Clark had reported attempting suicide by
cutting his wrists or overdosing on drugs some 20 to 30 times.
The trial judge indicated that he had read the mental health reports submitted
by defense counsel. The two then engaged in the following colloquy:
Davis: Yes, sir. Thank you, Your Honor. I would
like to begin by asking the court to include
in its consideration the reports by Dr. Peter
[Macaluso], Dr. [Barnard], and Dr. Miller
which are in the court file.
The Court: They are in the court file?
Davis: Yes, sir.
The Court: I had remembered seeing some of those and
I remember reading them. I’m not sure I
read the doctor from Tallahassee. I
remember reading Dr. [Barnard]’s and who
was the other one you said?
Davis: The report from Dr. Miller.
The Court: I remember reading those. I don’t recall if I
read that one or not, but if it’s in the court
file then I will.
Davis: Yes, sir. I have a copy here, I could tender it
to the court.
The Court: All right. Would you, please, and I will read
that between now and Friday.
14
Case: 14-15022 Date Filed: 04/27/2016 Page: 15 of 48
Davis explained that the reports contained extensive information about Clark’s
background, including his prolonged history of alcohol and substance abuse. The
judge also provided Clark with one final opportunity to speak on his own behalf.
Again, Clark declined.
The judge sentenced Clark to a lifetime prison term for his armed robbery
conviction, to run concurrently with the murder sentence. The judge then observed
that he had “carefully studied and considered all of the evidence, the testimony at
trial and at the advisory sentencing proceeding, the applicable Florida statutes, the
case law, and all other factors touching upon this case.” Having considered both
the statutory and non-statutory mitigating circumstances, the judge found that they
were outweighed by the “great aggravating circumstances which exist to justify the
sentence of death.” Thus, the judge imposed a death sentence on Clark.
In addition to making these observations, the judge issued a sentencing
opinion formalizing the defendant’s sentence. In that opinion, the court found as
aggravating factors Clark’s previous conviction for another capital felony, Fla.
Stat. § 921.141(6)(b), that the murder of Willis was committed during the
commission of a robbery, Fla. Stat. § 921.141(6)(d), and that the murder was
committed for pecuniary gain, Fla. Stat. § 921.141(6)(f). The opinion also found
no statutory mitigating factors were present. As for non-statutory mitigating
circumstances the court said only that “[t]here are no other aspects of Ronald
15
Case: 14-15022 Date Filed: 04/27/2016 Page: 16 of 48
Wayne Clark’s character or record, nor any other circumstances of the offense,
which would mitigate in favor of Ronald Wayne Clark or his conduct in this
matter.” The court made no specific reference to the three mental health experts.
The trial judge did observe, however, that “[t]he Court having considered both
statutory and non-statutory mitigating circumstances, finds that there are no
mitigating circumstances existing which would outweigh or outnumber the
statutory aggravating circumstances in this case.”
D.
Clark appealed his sentence to the Florida Supreme Court. He claimed the
trial court erred by (1) allowing him to waive the presentation of mitigating
evidence; (2) finding felony murder and pecuniary gain as separate aggravators;
(3) failing to properly consider the mitigating evidence and failing to find that
several mitigators had been established; (4) allowing hearsay testimony to establish
Clark’s prior conviction in Nassau County of first-degree murder; and, finally,
(5) imposing a death sentence disproportionate to his crime. Clark v. State (“Clark
I”), 613 So. 2d 412 (Fla. 1992). Only the third claim is relevant here. On that
issue, the Florida Supreme Court held:
Clark also argues that the trial court erred by failing to
consider the mitigating evidence properly and to find that
several mitigators had been established. The record is
clear, however, that the trial court considered the
mitigating evidence, including the psychiatric reports as
noted in the sentencing order. The trial court
16
Case: 14-15022 Date Filed: 04/27/2016 Page: 17 of 48
conscientiously performed its duty and decided that no
mitigators had been established. The record contains
competent, substantial evidence supporting the court’s
conclusion that Clark’s death sentence is appropriate.
Id. at 414 (citations omitted). Florida’s high court also rejected each of Clark’s
other claims and affirmed his conviction and death sentence. Id. at 415. The
United States Supreme Court denied certiorari on October 4, 1993. Clark v.
Florida, 510 U.S. 836 (1993).
E.
On November 16, 1994, Clark began his collateral attacks, filing a motion to
vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.850. The
post-conviction court granted Clark an evidentiary hearing on several of his claims,
including his claim that the state had knowingly withheld exculpatory evidence
and/or presented misleading evidence. For reasons that are not reflected in the
record, no hearing was conducted and the case languished without any action for
several years.
On June 20, 2003, Clark filed what he termed a Supplement to Amended
Motion to Vacate Judgments of Convictions and Sentences and, on September 8,
2005, the state court appointed attorney Harry Brody to represent Clark. With
leave of the court, Clark filed a new 3.850 motion raising 21 claims. The court
granted Clark an evidentiary hearing on three of them: (1) an alleged Brady
violation; (2) ineffective assistance of trial counsel for having failed to present
17
Case: 14-15022 Date Filed: 04/27/2016 Page: 18 of 48
mitigating evidence; and (3) ineffective assistance of counsel at the guilt phase of
trial. An evidentiary hearing was conducted on February 26, 2007. Clark’s
attorney called two witnesses, the first of whom testified to allegedly newly
discovered evidence that is not at issue today.
Clark’s attorney then called Clark’s trial counsel, Henry Davis (by then a
state court judge), to testify about why he did not present any mitigating evidence
to the jury during the penalty phase. Davis offered that the primary reason he did
not present any mitigating evidence was that his client, Clark, instructed him that
he did not want any such evidence presented since he had been convicted of
homicide in Nassau County. Moreover, Davis believed that much of the mitigating
evidence cut both ways and could actually prove harmful to Clark. Davis said that
Clark had lived “the most traumatic painful life” he had ever encountered and the
strategy in the Nassau County trial had been to present all of the mitigating
evidence to the jury. But, in light of the death sentence recommended by that jury,
a strategy designed to present all of the mitigation clearly had not worked. Davis
concluded from the reaction of the jurors in Nassau County that the mitigating
evidence had precisely the opposite of its intended effect. Among the evidence
that Davis saw as cutting both ways was that, as a child, Clark tortured and killed
animals for sport; he super-glued cats’ eyes shut and threw the animals against
walls. The evidence also revealed that Clark had sexually abused children as a
18
Case: 14-15022 Date Filed: 04/27/2016 Page: 19 of 48
minor. Indeed, Davis’s investigation revealed that Clark’s pattern of violence
escalated as he got older.
Moreover, although Davis thought that lingering doubt was not a valid
mitigating factor, he also believed that the jury might recommend life because the
evidence was “far from overwhelming.” While Davis acknowledged that
conceivably he could have presented mitigating evidence over Clark’s objection,
he did not believe it was strategically wise to do so.
Clark again declined to testify on his own behalf at the collateral hearing,
although he told the court that he wanted his attorney to present evidence about
bloody clothes that had not been presented by his trial attorney. After the
evidentiary hearing, Clark filed a pro se motion with the court, which the court
construed as a motion to reopen the evidentiary hearing, because his counsel had
not presented evidence to support all of his claims. On September 24, 2007, the
court denied Clark’s pro se motion because he was then represented by counsel.
On September 17, 2007, the state post-conviction court denied Clark’s
motion for post-conviction relief in its entirety. Among other things, for our
purposes, the court denied Clark’s Brady claim because he had made no showing
that the state had suppressed any of the allegedly exculpatory statements; indeed,
the evidentiary record indicated that the state had turned over the impeaching
statements made by Hatch. The court also denied Clark’s ineffective assistance of
19
Case: 14-15022 Date Filed: 04/27/2016 Page: 20 of 48
counsel claim, finding that the claim was procedurally barred because it had been
raised on direct appeal and, in any event, failed because Davis had made a
reasonable strategic decision not to present mitigating evidence. On appeal,
Clark’s attorney pressed only his ineffective assistance of counsel and newly
discovered evidence claims.
During this time frame, Clark attempted to file a series of pro se motions,
including a motion for an extension of time to file a brief that included his Brady
claim, a motion to discharge his post-conviction counsel, and a motion to proceed
pro se. Each motion was stricken or denied by the Florida Supreme Court. The
Florida Supreme Court ultimately affirmed the trial court’s denial of Clark’s
motion for post-conviction relief. Clark v. State (“Clark II”), 35 So. 3d 880, 886
(Fla. 2010). As for the claim that defense counsel’s failure to present mitigating
evidence at the penalty phase amounted to ineffective assistance of counsel, the
court first found that the claim was procedurally barred because the Florida
Supreme Court had determined on direct appeal that Clark had made a knowing
and intelligent waiver of his right to present any mitigating evidence. Id. at 889.
And to the extent the claim was cognizable, the Florida Supreme Court applied the
Strickland standard and held that Clark’s counsel had not provided objectively
deficient performance, nor did the petitioner establish prejudice. Id. at 891.
20
Case: 14-15022 Date Filed: 04/27/2016 Page: 21 of 48
F.
Clark filed this petition seeking federal habeas relief in the United States
District Court for the Middle District of Florida on April 28, 2011, pursuant to 28
U.S.C. § 2254. He raised seven claims, three of which are now on appeal. The
district court denied habeas relief. Clark v. Sec’y, Fla. Dep’t of Corr., No. 3:10-
CV-547-J-39PDB, 2014 WL 4059131 (M.D. Fla. Aug. 14, 2014). First, the district
court dismissed Clark’s ineffective assistance of counsel claim because it was
procedurally defaulted. Id. at *19. The district court cited the Florida Supreme
Court’s determination that the claim could not be heard on post-conviction review
because it had already been denied on direct appeal. Id. In the alternative, the
district court concluded that the Florida Supreme Court had not unreasonably
applied Strickland when it found that counsel’s performance was neither deficient
nor had it caused Clark any prejudice. Id. at *23–25.
The district court also rejected Clark’s claim that the trial court had failed to
properly evaluate, consider, find, and weigh mitigating evidence. Id. at *25–26.
Referencing the trial judge’s statements that he had considered all of the mitigating
factors, the district court found that the Florida Supreme Court had neither
unreasonably applied clearly established federal law, nor had it unreasonably found
the facts when it determined that the trial court considered the mitigating evidence
presented. Id. Finally, the district court denied Clark’s Brady claim. Id. at *28–
21
Case: 14-15022 Date Filed: 04/27/2016 Page: 22 of 48
31. Because Clark attempted to raise the matter pro se, the district court rejected
the argument that the claim was procedurally defaulted. Id. at *29. But the district
court denied Clark relief on the merits because he failed to establish that the
statements had been suppressed by the state, that they would have been material to
his defense, or that he would have been prejudiced had they actually been
suppressed. Id. at *31.
The district court denied Clark a certificate of appealability. We granted a
certificate on three questions: whether the failure to present mitigating evidence
amounted to ineffective assistance of counsel; whether the trial court erred by
failing to consider mitigating evidence; and whether Clark’s due process rights
were violated under Brady.
II.
A.
We review de novo a district court’s denial of federal habeas relief. Peterka
v. McNeil, 532 F.3d 1199, 1200 (11th Cir. 2008). No one disputes that the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Clark’s
habeas petition. Under AEDPA, if a petitioner’s habeas claim “was adjudicated on
the merits in State court proceedings,” a federal court may not grant relief unless
the state decision (1) “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
22
Case: 14-15022 Date Filed: 04/27/2016 Page: 23 of 48
States,” or (2) “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under
§ 2254(d)(1)’s “contrary to” clause, we grant relief only “if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the Supreme Court] has on
a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). Under § 2254(d)(1)’s “unreasonable application” clause, we grant relief
only “if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Id. For § 2254(d)(1), clearly established federal law includes
only the holdings of Supreme Court decisions -- not Supreme Court dicta and not
the opinions of this Court. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
The Supreme Court has explained that, to satisfy § 2254(d), “a state prisoner
must show that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). The state court
need not cite or even be aware of Supreme Court precedent “so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002). “[A]n ‘unreasonable application of’ [Supreme
23
Case: 14-15022 Date Filed: 04/27/2016 Page: 24 of 48
Court] holdings must be ‘objectively unreasonable,’ not merely wrong; even ‘clear
error’ will not suffice.” Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade,
538 U.S. 63, 75–76 (2003)). In other words, Clark must establish that no
fairminded jurist would have reached the Florida court’s conclusion. See
Harrington, 562 U.S. at 103. And Clark must do so based only on the “record that
was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 180 (2011).
AEDPA also requires that we give state court factual findings great
deference. “[A] determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). “If [the AEDPA] standard is difficult to meet, that is because it was
meant to be.” Harrington, 562 U.S. at 102.
B.
Clark argues first that he received ineffective assistance of counsel because
his trial attorney did not present mitigating evidence to the jury during the penalty
phase. He claims that this decision was objectively unreasonable. Moreover, he
argues that, had the evidence been presented, there is a reasonable probability that
he would not have been sentenced to death. We are unpersuaded.
24
Case: 14-15022 Date Filed: 04/27/2016 Page: 25 of 48
The State responds that Clark’s ineffective assistance of counsel claim is
procedurally barred from federal habeas review. The argument is based on the
Florida Supreme Court’s observation in Clark II that because the “claim was raised
on direct appeal and found to be without merit, it is procedurally barred from being
raised in postconviction proceedings.” Clark II, 35 So. 3d at 889. While that may
accurately recite state law, it does not work to procedurally bar claims on federal
habeas review.
Indeed, controlling Supreme Court authority defeats this argument. The
Court explained in Cone v. Bell, 556 U.S. 449, 465 (2009), that the purpose behind
respecting a state procedural bar is to respect the state’s interest in correcting its
own mistakes -- an interest that is defeated when a petitioner fails to properly raise
the claim before the state court. But that consideration is not present when the
claim has been barred in state court because it has been presented twice:
When a state court refuses to readjudicate a claim on the
ground that it has been previously determined, the court’s
decision does not indicate that the claim has been
procedurally defaulted. To the contrary, it provides
strong evidence that the claim has already been given full
consideration by the state courts and thus is ripe for
federal adjudication.
Id. at 467. This conclusion has been echoed many times by the Supreme Court and
this Court. See, e.g., Wellons v. Hall, 558 U.S. 220, 222 (2010); Williams v.
Alabama, 791 F.3d 1267, 1274–75 (11th Cir. 2015); Green v. Nelson, 595 F.3d
25Case: 14-15022 Date Filed: 04/27/2016 Page: 26 of 48
1245, 1249 n.1 (11th Cir. 2010). Clark’s ineffective assistance of counsel claim is
not procedurally barred.
Turning, then, to the merits, to succeed on his ineffective assistance claim,
Clark must establish both deficient performance and prejudice: he must show both
that “counsel’s representation 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.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984); accord Wiggins v. Smith, 539 U.S.
510, 521 (2003); Darden v. Wainwright, 477 U.S. 168, 184 (1986). Moreover, we
do not apply Strickland de novo, but rather examine it through the prism of
AEDPA deference. 28 U.S.C. § 2254(d)(1). As the Supreme Court has noted,
“[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at
105 (citation omitted (quoting Strickland, 466 U.S. at 689, and Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)). Thus, under this doubly deferential
standard, “[t]he pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” Id. at 101; see also id. (“A state court must
be granted a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.”). And if, at a minimum, fairminded
jurists could disagree on the correctness of the state court’s decision, the state
26
Case: 14-15022 Date Filed: 04/27/2016 Page: 27 of 48
court’s application of Strickland was not unreasonable, and AEDPA precludes the
grant of habeas relief. Id.
The Florida Supreme Court held that the performance of Clark’s trial
counsel was not unreasonable. This determination was neither contrary to nor an
unreasonable application of clearly established Supreme Court law. Davis’s
performance did not fall below an objective standard of reasonableness because he
reasonably determined that the mitigating evidence could cut both ways and thus
could have harmed his client as much as it could have helped him. Moreover,
having actually presented the same mitigating evidence once before in an earlier
capital case tried in Nassau County, and having watched the jury reject the
presentation and recommend a death sentence, counsel had sound reason, indeed,
to decide against presenting the same evidence again.
We should add that there is no claim that Clark’s attorney failed to fully
investigate Clark’s difficult upbringing. Rather, Clark says only that, after
conducting a full investigation and presenting all of the evidence at his first trial,
his attorney erred by determining that the harmful evidence likely to be introduced
if he presented that evidence at the second trial outweighed its benefits. When
faced with such a double-edged sword, an attorney is called on to make an
informed strategic decision, one that we are loath to second-guess.
27
Case: 14-15022 Date Filed: 04/27/2016 Page: 28 of 48
Our recent decision in Kormondy v. Secretary, Florida Department of
Corrections, 688 F.3d 1244 (11th Cir. 2012), supports this conclusion. There,
Kormondy was sentenced to death after presentation of evidence regarding his
unsettled and abusive upbringing along with his history of drug and alcohol abuse.
Id. at 1258. After the sentence was vacated and the case was remanded for
resentencing, Kormondy’s counsel declined to present mitigating evidence in an
apparent attempt to preempt the State from introducing rebuttal evidence. Id. at
1262–63. Kormondy engaged in a long discussion with the trial judge asserting
that he wanted to waive the presentation of such evidence. Id. at 1263–68. After
Kormondy was again sentenced to death, he nevertheless challenged his attorney’s
performance, claiming that he received deficient representation because his lawyer
failed to present mitigating evidence. Id. at 1280–81. We held that, given the
double deference due to the Florida Supreme Court’s decision under Strickland and
AEDPA, Kormondy was not entitled to relief. Id. at 1283–84. In particular, we
observed that evidence of drug and alcohol abuse as well as evidence of a difficult
and impoverished upbringing were “two-edged sword[s]” that might “provide[]
independent basis for moral judgment by the jury.” Id. at 1283.
The considerations weighing against presentation of mitigating evidence in
Clark’s case are even stronger than in Kormondy’s. Here, trial counsel testified at
the evidentiary hearing about the breadth of the defendant’s cruel and violent
28
Case: 14-15022 Date Filed: 04/27/2016 Page: 29 of 48
behavior that would likely have been presented to the jury had he sought to present
evidence of Clark’s abusive childhood. The evidence included that Clark tortured
and killed animals for sport, super-glued cats’ eyes shut, threw animals against
walls, sexually abused children, and reportedly enjoyed hurting people. The
Florida Supreme Court did not unreasonably conclude that Clark’s attorney made a
reasonable strategic decision.
Further, just like the attorney in Kormondy, Clark’s counsel had the benefit
of seeing how the presentation of this evidence would affect a trial jury because he
had unsuccessfully presented the same evidence to the jury in Clark’s previous
murder trial in Nassau County. That the death penalty in the first case was later
overturned on appeal is of no moment because that decision was not handed down
until after the trial at issue here. Indeed, Strickland instructs us that we must
“eliminate the distorting effects of hindsight” in order to “evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. At the time
counsel acted, there was nothing unreasonable about the decision.
Moreover, Clark’s counsel did not render deficient performance when he
followed his client’s clear and explicit instructions not to present mitigation
evidence to the jury. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1244 (11th
Cir. 2010) (holding that petitioner had not shown counsel was ineffective for
failing to present mitigating evidence where client instructed counsel not to present
29
Case: 14-15022 Date Filed: 04/27/2016 Page: 30 of 48
evidence and, in counsel’s independent judgment, presentation of such evidence to
the jury would have harmed client). Here, there is no dispute that Clark told Davis
he did not want to present mitigating evidence. The trial judge engaged in lengthy
and repeated colloquies with Clark in order to discern with clarity the defendant’s
wishes. The trial judge concluded that Clark clearly understood the proceedings
and, despite having the opportunity to do so, elected not to present mitigating
evidence or testify on his own behalf. In light of this clear instruction, we cannot
find that Clark’s counsel performed deficiently by declining to present mitigation
evidence to the jury. Clark’s ineffective assistance of counsel claim fails on the
first Strickland prong.
C.
Even if we look past Clark’s failure to show that his trial counsel rendered
deficient performance, he is unable to establish prejudice from the failure to
present mitigating evidence to the jury, let alone that the Florida Supreme Court’s
determination that he was not prejudiced was unreasonable. Again, we can
discount the probability that the jury here would have recommended that Clark not
be sentenced to death even had the mitigating evidence been offered because, faced
with that same mitigating evidence, the jury in Clark’s Nassau County case
recommended the death penalty. Moreover, the aggravators in this case include
the unchallenged finding that the murder was committed during the commission of
30
Case: 14-15022 Date Filed: 04/27/2016 Page: 31 of 48
a robbery and, even more powerfully, that Clark had previously been convicted of
another capital felony committed under strikingly similar circumstances. While it
is possible that a different jury in a different county would have reached a different
result when presented with the same mitigating evidence, Clark has made no
persuasive argument as to why it is reasonably probable. In sum, we cannot find
that the Florida Supreme Court unreasonably applied Strickland when it concluded
that Clark was not prejudiced by his counsel’s failure to present mitigating
evidence at the penalty phase.
III.
Clark claims next that his rights were violated because the sentencing judge
failed to consider the mitigating evidence his attorney presented during the Spencer
hearing. The Florida Supreme Court rejected this claim too on direct appeal,
finding that “[t]he record is clear . . . that the trial court considered the mitigating
evidence, including the psychiatric reports as noted in the sentencing order. The
trial court conscientiously performed its duty and decided that no mitigators had
been established.” Clark I, 613 So. 2d at 414. Clark is unable to overcome the
Florida Supreme Court’s finding of fact. 3
3
The precise standard for reviewing state court factual findings in habeas proceedings is
somewhat murky. Section 2254(d)(2) instructs that habeas relief may be granted where the state
court decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Section 2254(e)(1), meanwhile, commands that “a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
31
Case: 14-15022 Date Filed: 04/27/2016 Page: 32 of 48
The United States Supreme Court has held that the Eighth and Fourteenth
Amendments require that a sentencer not be prohibited from considering as
mitigation “any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett
v. Ohio, 438 U.S. 586, 604 (1978)). The trial court may determine the appropriate
weight to be afforded such mitigation, but it may not exclude such evidence, as a
matter of law, from consideration altogether. Id. at 114–15. As we have
explained, however, the Constitution “does not dictate the effect that must be given
once the evidence is considered; it does not require the sentencer to conclude that a
particular fact is mitigating or to give it any particular weight.” Schwab v. Crosby,
451 F.3d 1308, 1329 (11th Cir. 2006). All that is forbidden is for sentencing courts
to give mitigating evidence “no weight by excluding such evidence from their
consideration.” Eddings, 455 U.S. at 115 (emphasis added). Thus, our
consideration is “completed once it is established that a full hearing was conducted
in which appellant’s counsel was given an opportunity to present all of the
convincing evidence.” “The interaction between (d)(2) and (e)(1), which appear to articulate
different standards for reviewing state factual findings, is an open question in this circuit.”
Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1294 n.4 (11th Cir. 2015). The Supreme
Court has repeatedly declined to rule on how, exactly, these two provisions interact, see
Brumfield v. Cain, 135 S. Ct. 2269, 2282 (2015); Wood v. Allen, 558 U.S. 290, 300–01 (2010),
and our sister circuits have split on the proper interpretation, see Wood, 558 U.S. at 299 n.1.
Because Clark does not meet even the arguably more forgiving § 2254(d)(2) standard, we need
not address the interaction between them here.
32
Case: 14-15022 Date Filed: 04/27/2016 Page: 33 of 48
mitigation evidence.” Baldwin v. Johnson, 152 F.3d 1304, 1323 (11th Cir. 1998)
(quoting Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984)).
Here, Clark does not argue that he was denied the opportunity to present
mitigating evidence. Rather, he contends that the sentencing judge erred because
he failed to consider the evidence. He points to the judge’s sentencing document,
which made no express reference to the reports counsel had submitted detailing
Clark’s childhood and addiction issues. Clark argues that this omission collides
with the Florida Supreme Court’s requirement that “the sentencing court must
expressly evaluate in its written order each mitigating circumstance proposed by
the defendant to determine whether it is supported by the evidence and whether, in
the case of nonstatutory factors, it is truly of a mitigating nature.” Campbell v.
State, 571 So. 2d 415, 419 (Fla. 1990) (footnote omitted).
Of course, a violation of state law is not sufficient to entitle a petitioner to
federal habeas relief. 28 U.S.C. § 2254(d)(1) (predicating habeas relief on a
violation of “clearly established Federal law, as determined by the Supreme Court
of the United States”). And, indeed, we have previously held that the failure to
reference non-statutory mitigating circumstances in a sentencing report is an
insufficient basis to entitle a federal habeas petitioner to relief. Card v. Dugger,
911 F.2d 1494, 1522 (11th Cir. 1990); Johnson v. Wainwright, 806 F.2d 1479,
1484 n.8 (11th Cir. 1986) (collecting cases).
33
Case: 14-15022 Date Filed: 04/27/2016 Page: 34 of 48
Nor do we see any other basis to award Clark habeas relief on this claim.
The Florida Supreme Court was not unreasonable -- let alone did it commit clear
error -- when it found as a fact “that the trial court considered the mitigating
evidence, including the psychiatric reports as noted in the sentencing order.” Clark
I, 613 So. 2d at 414. For one thing, the trial court said that it had considered all of
the relevant information for sentencing. Parker v. Dugger, 498 U.S. 308, 314
(1991) (“We must assume that the trial judge considered all this evidence before
passing sentence. For one thing, he said he did.”); accord Baldwin, 152 F.3d at
1324; Johnson, 806 F.2d at 1484. Moreover, the judge’s wording that it found no
mitigating factors that “outweigh or outnumber the statutory aggravating
circumstances in this case” is better understood as a conclusion that follows
appropriate consideration rather than as evidence that no consideration was
undertaken at all. See Parker, 498 U.S. at 318. Clark has not undermined or
rebutted the state court’s fact finding.
IV.
Clark also claims that the prosecutor violated his due process rights by
suppressing exculpatory or impeachment material in violation of Brady v.
Maryland, 373 U.S. 83 (1963). In particular, he points to the alleged suppression
of three statements. Although an evidentiary hearing on this issue and others was
held by the state post-conviction court, Clark’s attorney did not present any
34
Case: 14-15022 Date Filed: 04/27/2016 Page: 35 of 48
evidence in support of the claim that the prosecution had suppressed any of these
statements. On this basis, the post-conviction court denied Clark’s Brady claims.
Clark’s post-conviction counsel failed to appeal the denial of Clark’s Brady claim
to the Florida Supreme Court. Clark did, however, file a pro se motion in state
circuit court and before the Florida Supreme Court seeking to re-open the
evidentiary hearing or otherwise raise the issue. These motions were all stricken or
denied. The Florida Supreme Court did not consider Clark’s Brady claim.
A.
Because the Florida Supreme Court did not consider this issue, we are
required to determine first whether we are procedurally barred from considering it
on federal habeas review. The Supreme Court described the procedural bar
doctrine this way:
Federal habeas courts reviewing the constitutionality of a
state prisoner’s conviction and sentence are guided by
rules designed to ensure that state-court judgments are
accorded the finality and respect necessary to preserve
the integrity of legal proceedings within our system of
federalism. These rules include the doctrine of
procedural default, under which a federal court will not
review the merits of claims, including constitutional
claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule. A
state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims
if, among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and
the rule is firmly established and consistently followed.
The doctrine barring procedurally defaulted claims from
35
Case: 14-15022 Date Filed: 04/27/2016 Page: 36 of 48
being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing
cause for the default and prejudice from a violation of
federal law.
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012) (citations omitted).
Here, while we know the Florida Supreme Court struck Clark’s pro se
motions to raise his Brady claims, the record does not reflect the basis on which
those motions were stricken. A review of the Florida Supreme Court’s docket
sheet online reveals only that the motions were “stricken as unauthorized” but
provides no more detail than that. The State argues that Florida’s high court
followed a firmly established and regularly applied rule that a party on post-
conviction appeal does not have the right to file pro se motions while represented
by counsel.
Clark argues, however, that he did everything he could to present his claims
through the appellate process. Before both the post-conviction court and the
Florida Supreme Court, Clark attempted to file a series of pro se motions,
including a motion for an extension of time to file a brief that included his Brady
claim, a motion to discharge his post-conviction counsel, and a motion to proceed
pro se. Clark also wrote repeatedly to his post-conviction counsel demanding,
among other things, that his lawyer preserve all meritorious claims for federal
review. By doing so, Clark argues, he took every step he reasonably could have
36
Case: 14-15022 Date Filed: 04/27/2016 Page: 37 of 48
taken to exhaust his claims and avoid the procedural bar the State now asks this
Court to impose.
There has been no showing that the rule barring death-sentenced defendants
from proceeding pro se in post-conviction collateral proceedings before the Florida
Supreme Court was firmly established at the time Clark’s case was before that
court. To be sure, the Florida Supreme Court had previously held that appellants
are not entitled to present their own appeals pro se while represented by counsel on
direct appeal. Davis v. State, 789 So. 2d 978, 981 (Fla. 2001). And after Clark’s
appeal was settled, the Florida Supreme Court announced that it would apply the
Davis rule to cases on post-conviction review. Gordon v. State, 75 So. 3d 200, 201
(Fla. 2011). But the State has referred us to no Florida Rule of Appellate
Procedure, no published internal operating procedure in the Florida Supreme
Court, and no state court opinion extant at the time Clark’s case was decided that
forbade the filing of a pro se brief in Clark’s circumstances.
At oral argument in this Court, the State relied on the Florida Supreme
Court’s holding in Logan v. State, 846 So. 2d 472 (Fla. 2003), as firmly
establishing the rule procedurally barring Clark’s claim. But the case does nothing
of the sort. Instead, the court in Logan wrote:
We therefore dismiss the subject petitions as
unauthorized and take this opportunity to announce that
in the future, we will not entertain pro se extraordinary
writ petitions from criminal defendants seeking
37
Case: 14-15022 Date Filed: 04/27/2016 Page: 38 of 48
affirmative relief in the context of pending trial court
criminal cases, where it is clear from the face of the
petitions that the petitioners are represented by counsel in
the pending criminal proceedings and the petitioners do
not clearly indicate that they are seeking to discharge
counsel in those proceedings.
Id. at 479 (emphasis added). This rule does not speak at all to the situation
presented in Clark’s case. Clark did not have a pending trial court criminal case;
rather, he sought to present issues to the Florida Supreme Court in concert with a
post-conviction case then pending in that court. At the time Clark’s case was
decided, we can find no firmly established rule prohibiting defendants from filing
pro se motions with the Florida Supreme Court while represented by counsel in
post-conviction collateral proceedings.
Nor has the State presented us with any authority supporting its view that the
rule barring represented prisoners from filing pro se motions with the Florida
Supreme Court on collateral review has been consistently followed. Indeed, all of
the Florida Supreme Court cases the State cites relate to direct appeals or other
inapposite circumstances. See Sheppard v. State, 17 So. 3d 275 (Fla. 2009)
(holding that defendant cannot file a pro se extraordinary writ with the Florida
Supreme Court while simultaneously being represented by counsel in an ongoing
lower court proceeding); State v. Tait, 387 So. 2d 338, 339 (Fla. 1980) (holding
that a defendant does not have the right to represent himself at trial while also
enjoying the assistance of counsel). The State has not cited any case decided
38
Case: 14-15022 Date Filed: 04/27/2016 Page: 39 of 48
before its decision in Gordon where the Florida Supreme Court followed a clearly
established practice of denying defendants leave to file motions pro se where they
are represented by counsel on collateral review. We are, therefore, required to
address Clark’s Brady claims on the merits.4
B.
The Supreme Court has long held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady, 373 U.S. at 87. A Brady claim has three
components: “[1] The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; [2] that evidence must have
been suppressed by the State, either willfully or inadvertently; and [3] prejudice
must have ensued.” Allen v. Sec’y, Florida Dep’t of Corr., 611 F.3d 740, 745–46
(11th Cir. 2010) (alterations in original) (quoting Strickler v. Greene, 527 U.S.
263, 281–82 (1999)). “The prejudice or materiality requirement is satisfied if
‘there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’” Id. at 746
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The crucial question
on that point is “whether the government’s evidentiary suppressions, viewed
4
In this procedural posture, we review the merits of Clark’s Brady claim de novo. Blanco v.
Sec’y, Fla. Dep’t of Corr., 688 F.3d 1211, 1240 n.69 (11th Cir. 2012).
39
Case: 14-15022 Date Filed: 04/27/2016 Page: 40 of 48
cumulatively, undermine confidence in the guilty verdict.” Id. (citing Kyles v.
Whitley, 514 U.S. 419, 434, 436–37, & n.10 (1995)).
Clark first says that the State suppressed Hatch’s January 21, 1990 statement
to Nassau County Detective Jesonek. In that written statement taken shortly after
Hatch’s arrest, Hatch claimed to be “taking a leak” when Clark shot Willis; he
never mentioned that Clark told him of his plan to take Willis’s truck; and he did
not mention that Clark pointed a gun at him after shooting Willis. In contrast, in
his trial testimony, Hatch testified that Clark shot Willis while Hatch was walking
toward the back of the truck; that Clark whispered to Hatch that he planned to steal
the truck when they stopped; and that after shooting Willis, Clark turned toward
Hatch with the gun pointed at him and shouted that they had to go.
At an evidentiary hearing called to address the Brady issue, Clark’s attorney
elicited no testimony that Clark’s trial counsel had not received Hatch’s sworn
statement to the police. Thus, we have nothing other than Clark’s ipse dixit
assertions to support finding that the prosecution suppressed material exculpatory
or impeachment material. In fact, the evidence available in the record establishes
the opposite: that the prosecution provided Clark with Hatch’s statement. The
record reflects that in the State’s March 8, 1990 response to a demand for
reciprocal discovery, the prosecution provided Clark with a “[w]ritten statement of
Defendant Hatch.” Even more damning to Clark’s claim, his trial counsel cross-
40
Case: 14-15022 Date Filed: 04/27/2016 Page: 41 of 48
examined and impeached Hatch using the very same statement. The record reflects
the following colloquy between Davis (Clark’s counsel) and Hatch:
Davis: Now, in fact, you have stated earlier that you
got out of the truck, you walked some place
and you were in the process of urinating
when you heard the gun fire, is that correct?
Hatch: That was my intention.
Davis: Well, you have stated, have you not, that
you were, in fact, in the process of
urinating?
Hatch: I was on the way to.
Davis: Do you remember being interviewed by
Detective Jesonek?
Hatch: Yes, sir.
Davis: Didn’t you tell him that you were urinating
at the time that you heard the shots?
Hatch: I don’t remember if I said I was or I was in
the process of it. I was not using the
restroom at that time.
Moreover, during the testimony of Detective Jesonek, the prosecutor introduced
into evidence Hatch’s January 21, 1990 written statement and had Detective
Jesonek read it into the record. Davis registered no surprise and interposed no
objection indicating that he had previously been unaware of the statement. There
is simply no reason to find that the statement had been suppressed by the
prosecution.
41
Case: 14-15022 Date Filed: 04/27/2016 Page: 42 of 48
Next, Clark claims that the State suppressed a May 9, 1990 report from
prison officer Jeanette Sares that Hatch had threatened to kill Clark. According to
the report, “David Hatch did threaten to kill inmate Ronald Clark, Hatch told us
that he would ‘do it’ right in front of an officer, also that he would break Clark’s
neck.” Clark alleges that this statement shows great animosity between Hatch and
Clark, and that it too could have been employed to impeach Hatch’s motivations
for testifying against Clark. Just as with the allegedly suppressed written
statement, however, Clark’s post-conviction counsel failed to elicit any testimony
(or make any other showing) at the evidentiary hearing that Clark’s trial attorney
had not received this statement. In the absence of any evidence that the
prosecution suppressed this statement, we cannot conclude that Clark’s Brady
rights were violated.
Finally, Clark claims that the State suppressed Hatch’s statement to State
Attorney Howard Maltz on June 27, 1990, that he and Clark did not bury Willis’s
body because they were “too drunk to hold a shovel.” This would have
contradicted Hatch’s trial testimony that while he and Clark had both been
drinking and were under the influence on the night of the murder, they both knew
what was going on around them. Again, Clark’s post-conviction counsel failed to
elicit any testimony or make any other evidentiary showing that Clark’s trial
attorney had not received this statement. And still again, in the absence of
42
Case: 14-15022 Date Filed: 04/27/2016 Page: 43 of 48
evidence, we cannot find that the prosecution suppressed any Brady material.
Indeed, an additional response to Clark’s demand for discovery from the State on
July 5, 1990, indicates that the prosecution turned over the “[s]worn statement of
John David Hatch.” That this disclosure followed the date of Hatch’s statement so
closely suggests a reasonable likelihood that Hatch’s statement to State Attorney
Maltz was disclosed to Clark.
C.
Finally, to the extent Clark claims he should be granted an evidentiary
hearing on his Brady claim, his argument fails because he has not met the statutory
threshold for granting a hearing. AEDPA provides that:
If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the applicant
shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
43
Case: 14-15022 Date Filed: 04/27/2016 Page: 44 of 48
28 U.S.C. § 2254(e)(2). Clark cannot show that the factual predicate for his claim
could not have been previously discovered through the exercise of due diligence.
Indeed, an evidentiary hearing was granted on this very topic. Due diligence at
that hearing would have led to the discovery of whatever evidence existed in
support of this claim. He is also unable to establish that no reasonable factfinder
would have found him guilty of the underlying offense had the allegedly
suppressed statements been presented at trial.
Clark argues, nevertheless, that he is not required to meet § 2254(e)(2)’s
stringent requirements because he was diligent in pursuing this claim, even if his
attorney was not. He cites Burgess v. Commissioner, Alabama Department of
Corrections, 723 F.3d 1308, 1319–20 (11th Cir. 2013), for the principle that where
a petitioner has been diligent in developing the factual record, § 2254(e)(2) does
not apply and the district court’s denial of an evidentiary hearing is reviewed for
abuse of discretion. Passing over the question of whether Clark’s pro se efforts
constitute diligence in the face of his counsel’s abandonment of the claim, the
district court did not abuse its discretion in denying Clark an evidentiary hearing
because, even if the state prosecutor had suppressed Hatch’s statements, the
differences between Hatch’s trial testimony and his allegedly suppressed
statements are not material. Clark would not, therefore, be entitled to federal
44
Case: 14-15022 Date Filed: 04/27/2016 Page: 45 of 48
habeas relief. Under either standard, Clark is not entitled to an evidentiary hearing
on his Brady claim.
The long and short of it is that Clark has failed to show that the Florida state
courts based their decisions on unreasonable applications of clearly established
federal law or unreasonable determinations of the facts. Accordingly, we affirm.
AFFIRMED.
45
Case: 14-15022 Date Filed: 04/27/2016 Page: 46 of 48
MARTIN, Circuit Judge, concurring in judgment:
I agree with the majority’s holding that Mr. Clark is not entitled to relief on
his ineffective assistance of counsel claim. The Florida Supreme Court’s decision
regarding counsel’s performance was not an unreasonable application of clearly
established federal law as determined by the U.S. Supreme Court. See 28 U.S.C. §
2254(d). It is the majority’s ruling on the prejudice prong of Mr. Clark’s
ineffective assistance of counsel claim, however, that causes me to write
separately. To prevail on an ineffective assistance of counsel claim, a habeas
petitioner must show both that his counsel’s performance was deficient and that
counsel’s deficient performance prejudiced him. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Our panel is in agreement that
Mr. Clark failed to carry his burden on the performance prong of the showing
required by Strickland. Since I view the question of whether Mr. Clark was
prejudiced by his counsel’s performance as a close one, I would have preferred that
the panel not reach that question.
I would have avoided analysis of the prejudice prong of Strickland’s
required showing here because I have questions about the Florida Supreme Court’s
ruling that Mr. Clark was not prejudiced when his lawyer failed to present any
mitigation evidence to the jury during the penalty phase of his trial. In challenging
a death sentence, a petitioner establishes prejudice by showing that “there is a
46
Case: 14-15022 Date Filed: 04/27/2016 Page: 47 of 48
reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695, 104 S. Ct. at 2069.
As set out in the majority opinion, Mr. Clark had two capital murder trials.
In the first of these trials, in Nassau County, Florida, Mr. Clark presented
mitigation evidence of his alcohol abuse and emotional disturbance, together with
the emotional and sexual abuse he experienced as a child. See Clark v. State, 609
So. 2d 513, 515–16 (Fla. 1992). In the appeal of his Nassau County conviction,
the Florida Supreme Court characterized Mr. Clark’s evidence as “strong
nonstatutory mitigation.” Id. at 516. Of course precisely the same mitigation
evidence of Mr. Clark’s alcohol abuse, emotional disturbance, and the sexual abuse
he endured as a child exists in this case arising out of Duval County, Florida.
Nevertheless on postconviction review of Mr. Clark’s Duval County conviction,
the Florida Supreme Court said that he was not prejudiced by the failure to present
the very same mitigating evidence. See Clark v. State, 35 So. 3d 880, 891 (Fla.
2010).
A reviewing court applying Strickland’s prejudice standard must consider
the potential effect of the unpresented mitigating evidence on the sentencing jury.
See Porter v. McCollum, 558 U.S. 30, 41–43, 130 S. Ct. 447, 454–55 (2009) (per
curiam). I recognize that the reweighing of aggravating and mitigating evidence
47
Case: 14-15022 Date Filed: 04/27/2016 Page: 48 of 48
involves many factors and that the aggravating circumstances in Mr. Clark’s Duval
County trial may have been more powerful than those in his Nassau County trial.
After all, the Duval County jury knew about Mr. Clark’s Nassau County murder
conviction. Still, I am mindful that even though the Duval County jury heard no
mitigating evidence, it was not unanimous in recommending a sentence of death.
Knowing that one juror voted for a life sentence for Mr. Clark even without
hearing any of his “strong nonstatutory mitigation” evidence suggests to me that
had such evidence been presented, more jurors may have voted for life. Because
of the peculiarities of the prejudice question here, I would not have reached that
issue. Nevertheless, I agree with the majority that this record does not entitle Mr.
Clark to federal habeas relief.
48