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                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-11044
                           ________________________

                      D.C. Docket No. 2:10-cv-14046-DMM



WILLIAM REAVES,

                                                                Petitioner-Appellee,

                                       versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                             Respondent-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 30, 2013)

Before TJOFLAT, CARNES, and MARCUS, Circuit Judges.

CARNES, Circuit Judge:

      Despite his repeated assertions that he was “high” on cocaine at the time he

shot a law enforcement officer to death, the jury convicted the habeas petitioner in

this case of first-degree murder and sentenced him to death. Under Florida law,
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first-degree murder requires a “premeditated design” to kill, which consists of a

specific intent to kill coupled with premeditation. See Fla. Stat. § 782.04(1)(a);

Anderson v. State, 276 So. 2d 17, 18 (Fla. 1973). As the case comes to us, the

issue is whether there is a reasonable probability that the jury would have found

the petitioner incapable of forming a premeditated design to kill had his trial

attorney actively pursued a defense of voluntary intoxication.

                         I. FACTUAL BACKGROUND

      In the early morning hours of September 23, 1986, William Reaves walked

from his girlfriend’s home to a nearby convenience store in Indian River County,

Florida, where he placed three calls from a pay phone to a taxi service in order to

get a ride home. Reaves grew impatient waiting for a taxi to arrive and, not having

any more change to make another call, he dialed 911 shortly after 3:00 a.m.,

hoping to have the operator call a cab for him. For some reason he hung up the

phone before speaking to the 911 operator.

      Deputy Richard Raczkoski was dispatched to investigate the hang-up call.

After arriving at the convenience store and talking with Reaves for a while, the

deputy contacted the 911 dispatcher and learned that Reaves had no outstanding

warrants. The deputy asked the operator to contact the taxi service and find out if

one was coming for Reaves, and the operator confirmed that a taxi was on its way.

All seemed to be going well.


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      But events sometimes tumble toward tragedy “as if the devil himself had

shaved the dice.”1 What tumbled in this case was a .38-caliber pistol, which had

been concealed on Reaves but somehow slipped from the waistband of his short

pants and fell to the ground. The record does not show how that happened, but it

does show that Reaves had prior felony convictions for conspiracy to commit

robbery, for grand larceny, and for grand theft. The record also shows that Reaves

believed that if he were arrested and convicted for being a felon in possession of

that firearm he would face mandatory prison time. He did not want to go back to

prison.

      When Reaves reached for the pistol on the ground Deputy Raczkoski tried to

stop him. Reaves pushed the deputy, grabbed him by the throat, picked up the

pistol, and pointed it in the deputy’s face. Pleading with Reaves not to kill him, the

deputy managed to back away, turn, and run. Reaves emptied the entire seven-

round clip of his pistol, each shot requiring a separate pull of the trigger, and four

of those shots struck the deputy, hitting him in the back. As the deputy lay

bleeding on the ground, he fired several shots from his weapon, but none of them

hit Reaves. Later that morning Deputy Raczkoski died on the operating table.

      After the shooting, Reaves fled into dense woods behind the convenience

store and made the seven-mile trek to the home of a friend, Erman Eugene Hinton,


      1
          Rick Bragg, The Prince of Frogtown 177 (Alfred A. Knopf 2008).
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all the while eluding a police manhunt that involved dozens of officers, a K-9 unit,

and a police helicopter. Reaves arrived at Hinton’s home, woke him up, and asked

to take a shower and for a change of clothes. Hinton obliged. According to

Hinton’s trial testimony, 2 Reaves told him that as the deputy attempted to draw his

own weapon he had pointed the gun in the deputy’s face and warned him, “I

wouldn’t do that if I were you.” Reaves recounted to Hinton how the deputy had

pleaded for his life, begging Reaves not to shoot him, to which Reaves had

responded: “One of us got to go, me or you.” Hinton testified that he had no

difficulty understanding Reaves, whose speech was not slurred and who appeared

to be in full control of his faculties that morning.

        Later that day Reaves offered a half ounce of cocaine to Jerry Bryant, his

niece’s husband, in exchange for a ride to a motel in Melbourne, Florida. Bryant

agreed and Reaves directed him to retrieve some cocaine that he had hidden in his

mother’s house. After retrieving the cocaine, Bryant drove Reaves to a motel in

Melbourne, some 30 to 40 miles away, and rented a room for Reaves to use. On

the afternoon of the following day, Reaves boarded a Greyhound bus for Albany,

Georgia. When he arrived there, Reaves was arrested by Georgia authorities, who

had been notified that he was suspected of killing Deputy Raczkoski.


        2
           Hinton testified at Reaves’ first trial in 1987 but refused to testify at the 1992 retrial,
even in the face of criminal contempt sanctions. The trial court deemed Hinton unavailable to
testify at the retrial and allowed his testimony from the earlier trial to be read into the record.
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      At the time of his arrest, which was not quite two full days after he killed the

deputy, Reaves had four-and-a-half ounces of cocaine with him, at least a portion

of which he intended to sell in order to finance his continued flight, and he also had

a newspaper bearing the headline, “Indian River Deputy on Emergency Call Killed

in Shooting.” Reaves initially lied to the Georgia authorities, telling them his name

was “Randy Martin” and giving them a false home address and place of

employment. He did not appear to be intoxicated to any of the officers who

encountered him.

      Detectives from the Indian River Sheriff’s Department arrived in Albany the

following morning to interview Reaves. During a taped confession, which was

later played for the jury at trial, Reaves admitted to shooting Deputy Raczkoski

and recounted the incident, including his ensuing flight, in considerable detail.

Reaves, however, told the officers that he had ingested an unspecified amount of

cocaine before the incident, and he made over a dozen references to being “coked

up,” “high,” and “wired out” at the time of the shooting. Although Reaves

repeatedly blamed the shooting on drug-induced panic and paranoia, he also

explained that he “couldn’t let that officer get that gun” because he believed that,

as a convicted felon, he was facing “a mandatory three years” for possessing a

firearm. Reaves confirmed telling Hinton about the shooting, although he said that

what he told Hinton was that he thought he had shot a police officer.


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                             II. PROCEDURAL HISTORY

            A. REAVES’ TRIAL, RETRIAL, AND DIRECT APPEALS

       Reaves was originally tried before a Florida jury in 1987, convicted of

premeditated first-degree murder, and sentenced to death. The Florida Supreme

Court reversed that conviction because the State prosecutor had represented

Reaves as a public defender in an earlier grand larceny case. See Reaves v. State,

574 So. 2d 105, 106–08 (Fla. 1991). At the outset of Reaves’ 1992 retrial,

Jonathan Jay Kirschner was appointed to represent him. At defense counsel’s

request, the trial court reappointed Dr. William Weitz, the mental health expert

who had examined Reaves before his first trial, to evaluate Reaves’ competency to

stand trial and sanity at the time of the offense, as well as to assist in the

preparation of his defense. 3 Dr. Weitz, a clinical psychologist specializing in

military psychology and post-traumatic stress disorder, diagnosed Reaves as

suffering from antisocial personality disorder, poly-substance abuse (particularly

cocaine), and “Vietnam Syndrome,” which he defined as a “sub-clinical” variety of

PTSD characterized by rage reactions, alienation, hypervigilance, some depression,

and a potential increase in drug and alcohol use.

       3
         Reaves was represented by a different attorney, Clifford Barnes, at his original trial and
in connection with that trial Dr. Weitz was appointed to evaluate Reaves with regard to issues of
competency, insanity, and the need for involuntary hospitalization. Barnes also had Dr. Weitz
consider whether Reaves was able to form the intent required for first-degree murder, whether he
was acting under the influence of extreme mental or emotional disturbance at the time of the
shooting, and whether he had the capacity to either appreciate the criminality of his conduct or
conform his actions to the requirements of the law.
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       During a pretrial deposition, Dr. Weitz testified that Reaves informed him

that he “smoked and snorted” 1.75 grams of cocaine and consumed an unspecified

amount of beer during the daytime or early evening before the shooting. He

expressed the opinion that Reaves’ judgment and perception “may have been

impaired by the use of alcohol and drugs” at the time of the shooting, though he

promptly clarified, “I’m not suggesting he was [legally] intoxicated or not, that I

don’t know. What I am suggesting is that the possibility of judgment and

perception being impaired which is psychological phenomena and not legal,

certainly are possible in this situation.” Dr. Weitz also concluded that Reaves

knew what he was doing at the time of shooting, understood the nature and

consequences of his actions, and possessed the ability to distinguish right from

wrong.

       During the guilt phase of the retrial, defense counsel pursued a defense of

excusable homicide, based largely on Reaves’ Vietnam Syndrome, and tried to

have Dr. Weitz’s testimony admitted in support of that defense.4 The proffered

testimony of Dr. Weitz largely reiterated his deposition testimony. He

acknowledged that the existence of Vietnam Syndrome, though accepted in “the

psychological community,” was not recognized as a disorder in the Diagnostic and


       4
          A homicide is excusable under Florida law when, among other things, it is committed
“by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation.”
Fla. Stat. § 782.03.
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Statistical Manual of Mental Disorders, which is the authoritative diagnostic source

for psychiatrists and psychologists. Dr. Weitz also conceded that Reaves did not

meet the criteria for a formal diagnosis of PTSD because, among other things, he

did not report flashbacks or re-experiencing trauma. Dr. Weitz was of the opinion

that, as result of Vietnam Syndrome, Reaves was more likely to perceive his

encounter with the deputy as life threatening, to exhibit diminished impulse

control, and to react quickly to eliminate any perceived threat. Still, he concluded

that Reaves was not so intoxicated at the time of the offense that he was unable to

distinguish right from wrong. Reaves had immediately fled the scene of the

shooting, had hidden in the woods, and had taken other evasive action, all of which

indicated to Dr. Weitz that Reaves “knew what he was doing.”

      After hearing the proffered testimony of Dr. Weitz, the court barred it from

the guilt phase of the 1992 retrial, ruling it inadmissible under Chestnut v. State,

538 So. 2d 820 (Fla. 1989). The Chestnut decision had held that evidence of an

abnormal mental condition that does not rise to the level of legal insanity is

inadmissible for the purpose of proving that an accused either could not or did not

possess the specific intent to commit an offense. 538 So. 2d at 820.

      At the retrial Reaves’ attorney did not present any evidence about the

amount of drugs and alcohol that Reaves had consumed before the crime or the

impact it would have had on his mental state. Nor did he argue to the jury that


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Reaves had been too intoxicated to form the premeditated design to kill that is

required for first-degree murder. He did, however, request a jury instruction on

that defense because of the statements in Reaves’ confession about ingesting

cocaine before the shooting. The trial court granted the request and instructed the

jury that, while the use of drugs does not excuse the commission of a criminal act

“to the extent that it merely arouses passions, diminishes perceptions, releases

inhibitions or clouds reason and judgment,” the jury should acquit Reaves of first-

degree murder if it found that he had been “so intoxicated from the voluntary use

of drugs as to be incapable of forming [the] premeditated design to kill.” The court

also instructed the jury on a number of lesser-included offenses of first-degree

murder, including second-degree murder.

      During closing arguments, the prosecutor discussed the issue of voluntary

intoxication at length, arguing that Reaves’ words, conduct, and underlying

motives, especially as expressed in his statement, “One of us got to go, me or you,”

proved that he had made a conscious decision to kill the deputy in order to avoid

prison time. He also argued that even if Reaves had consumed cocaine before the

killing, Reaves was not so intoxicated that he was unable to formulate the

premeditated intent to kill.

      During his closing arguments, defense counsel did not expressly urge the

jury to acquit his client of first-degree murder based on voluntary intoxication,


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focusing instead on the defense of excusable homicide and the shortness of time to

form a premeditated design. Counsel did point out that in his confession Reaves

had repeatedly referred to having used cocaine before the killing, and counsel

argued that the case involved a panic shooting devoid of premeditation by a

veteran of the Vietnam War. After nine hours of deliberations, during which the

jury asked the judge about the definition of premeditation and what would happen

if it could not reach a verdict, Reaves was convicted of first-degree murder.

      At the penalty phase of the trial, defense counsel called Dr. Weitz as an

expert witness. He testified much as his proffered testimony during the guilt stage

had indicated that he would. Dr. Weitz also told the jury that as a result of

Vietnam Syndrome, coupled with his use of cocaine, Reaves was acting under the

influence of extreme mental or emotional disturbance at the time of the shooting—

namely, a heightened sense of panic and fear—which substantially impaired his

ability to conform his conduct to the requirements of the law (a statutory mitigating

circumstance). Counsel also presented a number of witnesses who told the jury

about Reaves’ childhood, about his history of serious drug abuse dating back to his

one-year tour of duty in Vietnam, and about the conditions of combat in Vietnam.

The jury recommended a death sentence by a vote of ten to two and the trial judge

followed that recommendation, finding that the aggravating circumstances of




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Reaves’ offense outweighed the mitigating circumstances. 5 Reaves v. State, 639

So. 2d 1, 3 (Fla. 1994). The Florida Supreme Court affirmed Reaves’ conviction

and capital sentence on direct appeal. Id. at 6.

               B. REAVES’ STATE COLLATERAL PROCEEDINGS

       Reaves filed a state post-conviction motion under Fla. R. Crim. P. 3.850,

raising a total of 27 grounds for relief and requesting an evidentiary hearing. In

relevant part, he claimed that his attorney was ineffective during the guilt phase of

his retrial for failing to investigate and pursue a voluntary intoxication defense,

particularly one based on the combined effects of his mental health problems and

substance abuse, in order to negate the intent required for first-degree murder.

Reaves specifically faulted counsel for failing to: combine Dr. Weitz’s opinion

with evidence of his voluntary intoxication; investigate and present corroborative

evidence of his intoxication at the time of the offense, including evidence of his

history of substance abuse; prepare Dr. Weitz to testify as to the impact of

substance abuse on his ability to form the necessary intent; and retain additional
       5
          The trial court found three aggravating circumstances: (1) Reaves was previously
convicted of a felony involving the use or threat of violence to another person; (2) his capital
offense was committed for the purpose of avoiding or preventing a lawful arrest; and (3) the
offense was especially heinous, atrocious, or cruel. See Reaves v. State, 639 So. 2d 1, 3 n.2 (Fla.
1994). The court found no statutory mitigating factors but three non-statutory mitigating
circumstances: (1) Reaves was honorably discharged from military service; (2) he had a good
reputation in his community up to the age of 16 (he was 37 years old at the time he murdered the
deputy); and (3) he was a considerate son to his mother and good to his siblings. Id. at 3 n.3.
        On direct appeal, the Florida Supreme Court rejected the finding that Reaves’ offense
was especially heinous, atrocious, or cruel in comparison to other capital cases, but found that
error of the trial court to be harmless in light of the other two aggravating factors and the
“relatively weak mitigation.” Id. at 6.
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mental health experts who could testify about his chronic substance abuse and

mental health problems.

      Reaves also claimed that counsel was ineffective during the penalty phase of

the retrial for failing to adequately investigate and introduce additional mitigating

evidence, including evidence relating to his impoverished childhood, military

experience, drug addiction, contraction of a venereal disease in Vietnam, the

murder of his sister shortly after he returned from Vietnam, and his efforts to assist

a jail guard during a 1973 attack by two other inmates.

      Along with his motion for collateral relief, Reaves submitted a 1999

affidavit from Hinton. In that affidavit, Hinton stated that Reaves “was all strung

out” and “had been smoking crack and was pretty much out of his head” when he

came to his house after the shooting, which contradicted Hinton’s earlier testimony

that Reaves had appeared to be in full control of his faculties.

      The state trial court denied all of Reaves’ claims without an evidentiary

hearing. See Reaves v. State, 826 So. 2d 932, 936 (Fla. 2002). The Florida

Supreme Court affirmed all but one of the summary denials, including the denial of

Reaves’ claim of ineffective assistance of counsel at the penalty phase. It

concluded that the trial court had properly denied that claim without an evidentiary

hearing because the proposed mitigation evidence was either irrelevant, cumulative

of evidence already presented at sentencing, or would not have affected the balance


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of aggravating and mitigating circumstances. Id. at 941. The Florida Supreme

Court did, however, conclude that an evidentiary hearing was needed to resolve

Reaves’ claim that counsel was ineffective in failing to present a voluntary

intoxication defense during the guilt phase of the trial, and it remanded the case for

that purpose. Id. at 944.

                            1. The State Evidentiary Hearing

      On remand, the state trial court held a three-day evidentiary hearing in

March 2003 on Reaves’ guilt phase ineffectiveness claim, during which Reaves

called Kirschner, his counsel at the retrial, and six expert witnesses: Dr. Weitz, Dr.

Richard Dudley, Dr. Barry Crown, Dr. Deborah Mash, Dr. Erwin Parsons, and Dr.

Thomas Hyde.

      Kirschner testified that before the retrial he was aware of Reaves’ cocaine

consumption and history of drug abuse and was certain that he had discussed the

matter with Reaves, although he could not recall the specifics of their conversation,

including whether they discussed a possible voluntary intoxication defense.

Kirschner explained that, based on Dr. Weitz’s diagnosis of Vietnam Syndrome,

the primary focus of his defense effort had been excusable homicide, though he did

not completely ignore a voluntary intoxication defense. While Kirschner

repeatedly insisted that he had no recollection of what his thought process had been

more than ten years earlier, he speculated that he had requested a jury instruction


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on voluntary intoxication “to leave that as an option for the jury, a fall-back

position,” and added that “[s]ometimes there are defenses that you don’t suggest,

that you let the jury reach through their own logic.” He also noted that, at the time

of the retrial, “jurors were less accepting of the idea that voluntary intoxication

excuses criminal conduct.” Still, Kirschner could not recall why he had elected not

to actively pursue a defense of voluntary intoxication “other than the fact that I was

thinking excusable homicide was the right fit for the defense in this case . . . and

what I should be presenting to the jury.”

      Kirschner acknowledged that a defense of excusable homicide was not

necessarily inconsistent with a voluntary intoxication defense, although he noted

that there could be some tension between the two defenses, stated that presenting a

variety of defenses could lead the jury to believe that defense counsel was being

disingenuous, and pointed out that some of the statements Reaves made during his

confession indicated that he knew what he was doing at the time of the murder.

Kirschner also noted that Dr. Weitz did not advise him about how cocaine may

have affected Reaves at the time of the shooting, though he conceded that he could

not recall whether he had specifically asked Dr. Weitz about the interactive effects

of Vietnam Syndrome and cocaine use. Kirschner further conceded that, while he

questioned Reaves’ family and friends about his history of drug abuse, he did not

ask them about Reaves’ drug use around the time of the shooting, did not request


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the assistance of any other experts to help explain how drugs may have affected

Reaves at the time, and did not request forensic drug testing on a marijuana

cigarette and residue that were found at the home of Reaves’ girlfriend following

the shooting.

       Dr. Weitz, who is not an attorney, testified that in his opinion Kirschner had

pursued an excusable homicide defense that had been based on Dr. Weitz’s own

findings and “psychological perception” of the events, including his opinion that

Reaves’ military background had affected his behavior at the time. Dr. Weitz

asserted that he could have testified in support of a voluntary intoxication defense

at the retrial, but he had not been asked to evaluate whether Reaves was capable of

forming the intent required for first-degree murder. In his opinion, Reaves had a

“severe cocaine problem that would have impaired his ability to form specific

intent,” particularly in conjunction with his Vietnam Syndrome. 6 Dr. Weitz

explained that the beer and 1.75 grams of cocaine that Reaves told him he had

consumed during “almost a 24-hour period” before the shooting would have

intensified the symptoms of Vietnam Syndrome, increasing Reaves’ paranoia and

suspiciousness, significantly distorting his perception and judgment, and enhancing




       6
          Dr. Weitz testified that while he could have described the independent effects of drug
and alcohol on Reaves’ behavior and mental state, he believed the Vietnam Syndrome was a
“critical factor” that helped explain Reaves’ actions at the time of the shooting.
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his reactivity so as to render him unable to form the specific intent to commit

murder.

       Although Dr. Weitz conceded that Reaves knew he was eliminating a threat

when he fired at the deputy and admitted that Reaves’ actions after the killing were

a clear attempt to avoid being caught by law enforcement, he believed that Reaves’

conduct during the shooting was a “conditioned reaction” to a distorted perception

that his life was in mortal danger. He also testified that, while he was surprised by

the detailed nature of Reaves’ confession to the police, such a high level of recall

was not necessarily inconsistent with the lack of specific intent at the time of the

shooting. According to Dr. Weitz, while cocaine and alcohol impair information

processing, Reaves’ acuteness and sensitivity to detail would improve in a situation

where he felt his life was at risk.

       When asked whether Reaves’ statement to the deputy, “One of us got to go,”

was itself inconsistent with his opinion that Reaves lacked specific intent, Dr.

Weitz answered: “After the fact, I think it’s very clear that he can say that he

understood that he felt his life was threatened. That was exactly the situation, it

was you or I, and I wasn’t going to die. I think that’s consistent with my opinion,

not in contrast.” 7


       7
        The apparent premise of Dr. Weitz’s answer (“[a]fter the fact . . . he can say”) is that
Reaves made the statement after the killing, but the undisputed evidence is that he made the
statement to the deputy before he shot him.
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      Dr. Dudley, a clinical and forensic psychiatrist, diagnosed Reaves with poly-

substance dependence and PTSD, and he believed that Reaves was “acutely

intoxicated with cocaine” at the time of the murder. Dr. Dudley was of the opinion

that the combined effect of PTSD and acute intoxication prevented Reaves from

being able to form the intent to kill the deputy. He explained that cocaine would

have accentuated the paranoia and hypervigilance characteristic of PTSD, causing

Reaves to respond reflexively without making a conscious decision to kill. Dr.

Dudley also testified that Reaves’ ability to recall the shooting with specificity was

not inconsistent with the absence of intent, explaining that Reaves’ “escalating

hypervigilance” would have made him remarkably observant. Dr. Dudley

conceded, however, that he was unaware of Reaves’ statement, “One of us got to

go,” and admitted that he simply did not “know what to make of that.”

      Dr. Crown, a neuropsychologist, conducted a battery of tests on Reaves and

concluded that he suffered from organic brain damage in a neural region associated

with understanding the long-term consequences of immediate behavior. He did not

know the origin, cause, or timing of the brain damage. Dr. Crown was of the

opinion that Reaves’ brain damage, aggravated by substance abuse, prevented him

from forming the intent necessary for first-degree murder. He thought that the

interaction between cocaine use and Reaves’ underlying brain damage would have

resulted in a phenomenon called “cocaine kindling,” which causes a person to have


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disrupted “reasoning, judgment, particularly short-term memory,” and to become

impulsive and paranoid. Although Dr. Crown emphasized that Reaves’ cocaine

use and brain damage, both individually and in tandem, would disrupt short-term

memory, he would not concede that Reaves’ ability to vividly recall the details of

the murder was inconsistent with his opinion and asserted instead that “the

relationship between brain function and behavior is much like a lamp with a faulty

switch, sometimes it goes on and sometimes it goes off.”

      Dr. Mash, a neuropharmacologist, testified that Reaves had a long history of

substance abuse dating back to the Vietnam War and was using cocaine “every

day, all day” around the time of the shooting, which left him in a near constant

state of being “hyperaroused, completely paranoid, [and] completely wired.” In

Dr. Mash’s opinion, because of a “severe amount of cocaine abuse,” Reaves was in

a paranoid and “fully delusional” state of “cocaine psychosis” at the time of the

shooting, which left him unable to accurately perceive the threat posed by the

deputy, rationally react to the situation, or form the intent to commit first-degree

murder. She believed that years of substance abuse had effectively “damaged”

Reaves’ brain, disengaging the frontal lobes (i.e., the reasoning portions of the

brain that delay reaction) and fully activating the limbic system, or “reptilian part

of the brain,” which governs fight or flight responses. Dr. Mash also testified that

cocaine exacerbates the symptoms of PTSD, including irritability and


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hyperarousal, because both stimulate the same part of the brain, the amygdala. She

said that, had she been asked in 1992, she would have testified that Reaves was in

a “state of voluntary intoxication and would not have been able to form the intent

to commit murder.”

      On cross-examination, Dr. Mash noted that Reaves told her that he ingested

10 grams of cocaine on the day of the shooting. She denied that there was

anything unusual about Reaves’ detailed description of the shooting in his

confession, though her various explanations were somewhat contradictory. She

initially testified that cocaine, while shifting perceptions of reality, makes people

alert and does not “obliterate memory the way alcohol blackouts do.” Yet, she also

testified that short-term memory is “barred” when someone is hallucinating from

the use of cocaine and, in her opinion, Reaves was hallucinating. Finally, Dr.

Mash noted that clothing and hair taken from Reaves at the time of his arrest could

be tested for the presence of drugs, but could not show the actual time that the

drugs were used or in what quantities.

      When questioned about Reaves’ assertions in his confession that his actions

were motivated by a desire to avoid returning to prison, as well as Hinton’s

testimony about Reaves’ statements to the deputy, Dr. Mash testified that Reaves’

confession was an attempt to rationalize his behavior in order to “make sense of

something that went very badly.” She did not, however, specifically explain the


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significance of Reaves telling the deputy just before shooting him four times that

one of them had to go.

      Dr. Parsons, a clinical psychologist, testified that Reaves was suffering from

PTSD and had a history of chronic substance abuse. In his opinion, Reaves was

experiencing “dissociation” at the time of the murder, and the combined effects of

PTSD, substance abuse, and dissociation rendered him incapable of forming the

specific intent to kill the deputy. While Dr. Parsons agreed that Reaves’

confession described the incident in “exquisite detail,” he believed that the level of

recall did not demonstrate that Reaves was capable of forming specific intent

because memory “becomes extremely sharp” in the “context of trauma.” When

asked whether Reaves’ statements to the police regarding his motive for the

shooting indicated that he made a conscious decision to kill the deputy, Dr. Parsons

merely stated that there was a possible “different interpretation” of those

statements. But he did not disclose what that different interpretation was.

      Dr. Hyde, a behavioral neurologist, testified that Reaves had a history of

poly-substance abuse, particularly involving alcohol and cocaine; major recurring

depression; strong elements of PTSD; and a head injury, which was either caused

by prolonged substance abuse or sustained shortly after Reaves’ arrest as a result of

an alleged police beating. He did not, however, give a specific opinion about

Reaves’ mental state at the time of the shooting. He simply suggested that, if


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Reaves’ head injury had preceded the shooting, it would have left Reaves

disinhibited, impulsive, and prone to rash behaviors in combination with acute

intoxication. Dr. Hyde acknowledged that Reaves’ confession to the police was

“pretty exquisite” in terms of detail and was of the opinion that, if those details

were accurate, it was unlikely that Reaves was confabulating.

      In response to Reaves’ expert witnesses, the State called psychiatrist Dr.

McKinley Cheshire, who had testified during the penalty phase of Reaves’ 1992

retrial. Dr. Cheshire concluded that Reaves “knew what he was doing” at the time

of the shooting and made a conscious decision to kill the deputy. In particular, he

testified that Reaves’ statements to the police that he shot the deputy because he

was facing a mandatory prison term for unlawfully possessing a firearm showed

that Reaves was “thinking, calculating, considering the facts of the matter . . . and

the outcome of his behavior.” Dr. Cheshire diagnosed Reaves with antisocial

personality disorder, which was consistent with his calculated decision to murder

the deputy in order avoid jail time.

      During the course of the remand proceedings, Reaves moved for forensic

testing of the clothing and hairs recovered by the police to determine the presence

and concentration of drugs. The State responded that forensic testing was

unnecessary because Weitz’s unrebutted testimony from the time of trial was that

Reaves had ingested 1.75 grams of cocaine before the shooting and “no one [was]


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contesting that [Reaves] was a chronic drug user.” In denying Reaves’ request, the

state trial court noted that “[t]he State has all but stipulated that [Reaves] ingested

cocaine on the date of the incident” and that it was “uncontroverted that [Reaves]

was a drug addict and ingested cocaine” before the shooting.

      Based on the evidence presented at the hearing, the state trial court rejected

Reaves’ ineffective assistance claim, finding that counsel did not render

constitutionally deficient performance in failing to actively pursue a voluntary

intoxication defense and retain experts who could testify about the combined

effects of Reaves’ substance abuse and mental conditions.

                      2. The Florida Supreme Court’s Decision

      The Florida Supreme Court affirmed the trial court’s ruling, concluding that

counsel rendered reasonably effective representation in light of “the record at

retrial, the facts of the case, the law in Florida at the time, and counsel’s experience

and knowledge of the case.” Reaves v. State, 942 So. 2d 874, 878 (Fla. 2006).

The court noted that, in order to assert a viable voluntary intoxication defense,

Reaves had to “present evidence of intoxication at the time of the offense that

would show his inability to form the requisite specific intent,” not merely evidence

of a history of drug abuse. Id. at 879. The court then emphasized that: (1) other

than his own assertions of being “high,” Reaves did not present any “direct

evidence” to show his level or state of intoxication at the time of the murder; (2)


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Reaves’ expert witnesses had no objective evidence to support their opinions that

he was intoxicated at the time of the shooting; (3) Reaves’ other statements to the

police, including his detailed account of the circumstances of the crime, indicated

that “he knew exactly what he was doing at the time of the shooting,” which

essentially “negated any voluntary intoxication defense that trial counsel could

have presented on [his] behalf”; and (4) Hinton’s trial testimony, insofar as it

quoted Reaves as telling the officer, “One of us got to go,” and indicated that

Reaves appeared to be in full control of his faculties after the shooting, “further

negated the use of a voluntary intoxication defense.” 8 Id. at 879–80.

       The Florida Supreme Court also underscored the point that under its

Chestnut decision, which was the law in effect at the time of the 1992 retrial,

Reaves could not have offered evidence of the combined effect of intoxication and

a mental defect to support a voluntary intoxication defense. Id. at 880. Offering

combined effect evidence was not permitted, the court explained, until State v.

Bias, 653 So. 2d 380 (Fla. 1995), which was decided three years after Reaves’

retrial. Id. Based on these considerations, coupled with trial counsel’s testimony

at the evidentiary hearing, the Florida Supreme Court found that counsel made a

“strategic choice of excusable homicide as a defense over involuntary intoxication”

       8
           As we explain later, the Florida Supreme Court properly discounted the relevance of
Hinton’s 1999 affidavit on the issue of counsel’s ineffectiveness because Hinton refused to
testify at the 1992 retrial, which means that the information contained in the later affidavit was
not available at the time of the retrial. See Reaves, 942 So. 2d at 881–82.
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which was “reasonable under the facts of the case and the law at the time,” and as a

result, counsel’s performance was not deficient under Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984). Id. at 880–81. Given the lack of deficient

performance, the court did not address Strickland’s prejudice prong. Id. at 881.

               C. REAVES’ FEDERAL HABEAS PROCEEDINGS

      After his state post-conviction proceedings, Reaves filed a 28 U.S.C. § 2254

federal habeas petition claiming, among other things, that trial counsel had

rendered ineffective assistance at the guilt phase of his retrial by failing to

investigate, prepare, and present a voluntary intoxication defense. He contended

that if counsel had introduced expert or lay testimony in support of a voluntary

intoxication defense, it would have shown that he was incapable of forming the

intent required for first-degree murder and resulted in a conviction for second-

degree murder instead. Reaves also contended that counsel had rendered

ineffective assistance during the penalty phase of the retrial by failing to

investigate and present evidence of his impoverished childhood, military

experience and combat-related PTSD, and substance abuse.

      The district court granted relief on Reaves’ guilt phase claim of ineffective

assistance of counsel involving a voluntary intoxication defense and ordered a new

trial. The Florida Supreme Court’s rejection of that claim, according to the district

court, was based on an unreasonable determination of the facts. See generally 28


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U.S.C. § 2254(d)(2). Chief among those unreasonable findings, the district court

believed, was the finding that there was no direct evidence that Reaves was

intoxicated at the time he shot the deputy. The district court acknowledged that

Reaves’ own statements to the officers that he had ingested cocaine on the day of

the killing may have been the only evidence that he had been intoxicated. But the

court pointed out that, according to the state trial court, the State had not disputed

those statements. The district court also rejected the Florida Supreme Court’s

finding that trial counsel had made a strategic decision not to pursue a voluntary

intoxication defense. It did so based on counsel’s failure to offer a specific

strategic reason for not pursuing that defense and his failure to recall whether he

had discussed it with Reaves. Reaves had, the district court concluded, established

the deficiency prong of his guilt stage ineffective assistance of counsel claim.

      The district court also concluded that Reaves had satisfied the prejudice

prong of Strickland because there was a reasonable probability that a voluntary

intoxication defense would have prevented a first-degree murder conviction. In

reaching that conclusion, the district court emphasized both the “tragic and

bizarre” circumstances of the case and the expert testimony that the combination of

Reaves’ cocaine use and underlying mental problems rendered him unable to form

the premeditated design required for first-degree murder. Based on its own review

and interpretation of Florida law, which contradicted the view of the Florida


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Supreme Court, the district court concluded that evidence about the combined

effect of Reaves’ mental defects and cocaine use would have been admissible to

support a voluntary intoxication defense. The district court also pointed to the

length of the jury deliberations and the jury’s questions about a hung jury and the

element of premeditation, which the court surmised reflected “indecision and

concerns about whether the requisite intent for first degree murder had been

established.”

      In addition to granting relief on the guilt phase claim, the district court

ordered an evidentiary hearing on Reaves’ penalty phase claim in order to

determine the extent of additional mitigating evidence that could have been

presented to the jury and to assess whether the Florida Supreme Court reasonably

found that such evidence would have been irrelevant or cumulative. The court,

however, stayed the evidentiary hearing pending the result of any appeal of its

decision of Reaves’ guilt phase claim.

      The State filed timely motions for reconsideration under Fed. R. Civ. P.

59(e) and Fed. R. Civ. P. 60, both of which the district court denied. The State

then filed this appeal.

                                 III. LEGAL ANALYSIS

      When reviewing a district court’s grant or denial of habeas relief, “we

review questions of law and mixed questions of law and fact de novo, and findings


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of fact for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).

To prevail on a claim of ineffective assistance of counsel, a petitioner must show

both that: (1) counsel’s performance was deficient, meaning that it “fell below an

objective standard of reasonableness”; and (2) the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687–88, 104 S.Ct. at 2064.

Ordinarily, federal habeas review of claims adjudicated on the merits in state court

is greatly circumscribed by the Antiterrorism and Effective Death Penalty Act of

1996, which precludes relief unless the state court’s decision involved an

unreasonable application of clearly established federal law or was based on a

unreasonable determination of the facts. 28 U.S.C. § 2254(d). However, because

the Florida Supreme Court did not reach the issue of prejudice there is no decision

on that issue to which we could defer. See Johnson v. Sec’y, Dep’t of Corr., 643

F.3d 907, 930 (11th Cir. 2011).

                     A. GUILT PHASE INEFFECTIVENESS

      The State contends that, in granting habeas relief on Reaves’ guilt phase

claim of ineffective assistance, the district court failed to afford proper AEDPA

deference to the Florida Supreme Court’s factual findings, particularly its

determination that Reaves did not present any direct evidence of his level of

intoxication at the time of the murder. Under Florida law, the State insists,

Reaves’ “self-serving” statements to the police and to his experts about his cocaine


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use on the night of the murder were not “substantive evidence” of intoxication that

could support a voluntary intoxication defense. See Henry v. State, 862 So. 2d

679, 682–83 (Fla. 2003); Holsworth v. State, 522 So. 2d 348, 352 (Fla. 1988). The

State also maintains that, despite Reaves’ assertions that he was “high” at the time

of the murder, there was ample evidence he knew what he was doing when he shot

the deputy, fled the scene, and evaded law enforcement, and that expert testimony

about the combined effect of intoxicants and a mental condition could not support

a voluntary intoxication defense under Florida law at the time of Reaves’ retrial.

For those reasons, the State contends, Reaves has not only failed to show that trial

counsel rendered deficient performance in not actively pursuing a voluntary

intoxication defense, but has also failed to show that he was prejudiced by

counsel’s actions.

       Because we are convinced that Reaves has not carried his burden of

demonstrating prejudice, we need not decide whether the district court failed to

afford the required deference to the Florida Supreme Court’s decision that there

was no deficient performance. 9 See Windom v. Sec’y, Dep’t of Corr., 578 F.3d


       9
         We note, however, that the district court’s decision that there was deficient performance
was based on two fundamental flaws. For one thing, the district court mistook counsel’s
understandable lack of memory about what he may have been thinking at the time of the retrial,
which occurred more than a decade before he testified at the post-conviction hearing, for the
absence of a reasoned basis for electing not to actively pursue a voluntary intoxication defense.
See Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1245 (11th Cir. 2011) (explaining that
our binding precedent does not give the petitioner “the benefit of trial counsel’s short memory”;
instead, we presume that trial counsel exercised reasonable professional judgment); Williams v.
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1227, 1248 (11th Cir. 2009) (“Because the failure to demonstrate either deficient

performance or prejudice is dispositive . . . , 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.”) (quotation marks and alteration

omitted).

       To prove prejudice a petitioner must establish “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2068. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome,” id.,

and the “likelihood of a different result must be substantial, not just conceivable,”

Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 792 (2011). The inquiry into

prejudice requires us to evaluate “the totality of the evidence—both that adduced at


Head, 185 F.3d 1223, 1227–28 (11th Cir. 1999) (recounting that the trial had been ten years ago,
counsel had lost his case file, and he could not remember what had happened in the case, and
concluding that “where the record is incomplete or unclear about [counsel’s] actions, we will
presume that he did what he should have done, and that he exercised reasonable professional
judgment”).
        For another thing, the district court’s emphasis on counsel’s failure to articulate a specific
strategic reason for not focusing on voluntary intoxication as a defense placed undue weight on
counsel’s subjective reasons for acting as he did. As we have explained, Strickland calls for an
objective inquiry into the reasonableness of counsel’s performance and, for that reason, a
petitioner must show that “no competent counsel would have taken the action that his counsel
did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). The
relevant question is whether “some reasonable lawyer” could have pursued the challenged course
of action, regardless of whether the petitioner’s trial counsel actually made a deliberate,
informed, and strategic decision to do so. See id. at 1315 n.16 (emphasis added); see also
Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 790 (2011) (“The Court of Appeals erred in
dismissing strategic considerations like these as an inaccurate account of counsel’s actual
thinking. . . . Strickland . . . calls for an inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind.”) (emphasis added).
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trial, and the evidence adduced in the habeas proceedings.” Wiggins v. Smith, 539

U.S. 510, 536, 123 S.Ct. 2527, 2543 (2003) (quotation marks, brackets, and

emphasis omitted).

       At the time of Reaves’ 1992 retrial, voluntary intoxication could be asserted

as a defense in Florida to specific intent crimes such as first-degree murder, but not

to crimes like second-degree murder that can be established with either general or

specific intent.10 See Gardner v. State, 480 So. 2d 91, 92 (Fla. 1985); Gentry v.


       10
            Effective October 1, 1999, Florida statutorily abolished the defense of voluntary
intoxication, though that defense apparently remains available to defendants whose crimes
predate that legislation’s effective date. See Fla. Stat. Ann. § 775.051 (1999); Travaglia v. State,
864 So. 2d 1221, 1223 (Fla. 5th DCA 2004). Florida is one of a number of states that have
abolished the defense of voluntary intoxication in the past several decades, responding to
statistics linking violent crime with self-induced intoxication, and to criticisms that the defense
perversely rewards intoxicated behavior by reducing criminal punishment and contradicts
widespread moral notions that a person who voluntarily impairs his own faculties should be held
fully accountable for the consequences. See Montana v. Egelhoff, 518 U.S. 37, 48–50, 116 S.Ct.
2013, 2018–20 (1996) (discussing the trend towards abolition of the defense and the
justifications for doing so); Meghan Paulk Ingle, Note, Law on the Rocks: The Intoxication
Defenses Are Being Eighty-Sixed, 55 Vand. L. Rev. 607, 614–16, 622–26 (2002) (same); Bias,
653 So. 2d at 384 (Grimes, C.J., concurring) (urging the Florida legislature to abolish the
voluntary intoxication defense and stating, “I cannot understand why a person should be
exonerated of a specific intent crime simply because he drank too much”).
         This historical trend marks a return to the common law view, prevalent on both sides of
the Atlantic until the late nineteenth century, that intoxication neither justifies nor mitigates
criminal conduct. See Egelhoff, 518 U.S. at 44–47, 116 S.Ct. at 2018–20. As Justice Story
remarked nearly two centuries ago:

       If the prisoner was at the time of committing the offence, intoxicated, as his
       counsel have earnestly contended, I cannot perceive how it can, in point of law,
       help his case. This is the first time, that I ever remember it to have been
       contended, that the commission of one crime was an excuse for another.
       Drunkenness is a gross vice, and in the contemplation of some of our laws is a
       crime; and I learned in my earlier studies, that so far from its being in law an
       excuse for murder, it is rather an aggravation of its malignity.

United States v. Cornell, 25 F. Cas. 650, 657–58 (C.C.R.I. 1820) (Story, J.).
                                                30
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State, 437 So. 2d 1097, 1099 (Fla. 1983). Mere use of intoxicants, however, even

to the extent that they “arouse[d] passions, diminishe[d] perceptions, release[d]

inhibitions or cloud[ed] reason and judgment,” was not enough to support a

voluntary intoxication defense. See Fla. Std. Jury Instr. (Cr.) 3.04(g) (1987).

Instead, a defendant was required to “come forward with evidence of intoxication

at the time of the offense sufficient to establish that he was unable to form the

intent necessary to commit the crime charged.” Linehan v. State, 476 So. 2d 1262,

1264 (Fla. 1985) (emphasis added); see also Fla. Std. Jury Instr. (Cr.) 3.04(g)

(1987) (providing that a defendant must be so intoxicated that he or she was

“incapable of forming” the required mental state for a crime). The required mental

state for first-degree murder is a “premeditated design” to kill, which requires a

specific intent to kill coupled with premeditation. 11 See Fla. Ann. Stat. §


       11
          Florida courts sometimes phrase the voluntary intoxication inquiry in terms of whether
the defendant was so intoxicated that he lacked the specific intent to kill, which could be
interpreted to mean that the mental state required for first-degree murder is a specific intent to
kill and nothing more. See Henry v. State, 948 So. 2d 609, 626–27 (Fla. 2006); Patton v. State,
878 So. 2d 368, 373 (Fla. 2004); Jones v. State, 855 So. 2d 611, 616 (Fla. 2003). When it has
specifically focused on the matter, however, the Florida Supreme Court has clarified that the
mental state required for first-degree murder is not merely a specific intent to kill but also
premeditation, making premeditation the feature that distinguishes first- from second-degree
murder. See Anderson, 276 So. 2d at 18 (explaining that the “specific intent to kill” may be
present in either first- or second-degree murder, and that “the one essential element which
distinguishes [the two] is premeditation”); Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)
(describing premeditation as “more than a mere intent to kill; it is a fully formed conscious
purpose to kill”).
        For purposes of the voluntary intoxication defense, the question is whether the defendant
was “unable to form the intent necessary to commit the crime charged.” Linehan, 476 So. 2d at
1264. Combining these threads of law with the prejudice requirement, the question before us is
whether there is a reasonable probability that the jury, if presented with a voluntary intoxication
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782.04(1)(a); Anderson, 276 So. 2d at 18 (explaining that second-degree murder

requires either a general or specific intent to kill, while first-degree murder requires

both a specific intent to kill and premeditation, which is “the one essential element

which distinguishes first-degree murder from second-degree murder”); Davis v.

State, 928 So. 2d 1089, 1118 (Fla. 2005) (evaluating whether a voluntary

intoxication defense to a charge of first-degree murder “could have rebutted the

necessary elements of specific intent and premeditation”). Premeditation is

defined as not “a mere intent to kill,” Bradley v. State, 787 So. 2d 732, 738 (Fla.

2011), but as a “fully formed conscious purpose to kill that may be formed in a

moment and need only exist for such time as will allow the accused to be

conscious of the nature of the act he is about to commit and the probable result of

that act,” Asay v. State, 580 So. 2d 610, 612 (Fla. 1991).

       There are two reasons we are convinced that Reaves has failed to carry his

burden of demonstrating a substantial likelihood of a different result had trial

counsel actively pursued a voluntary intoxication defense with all of the evidence,

including the expert testimony, that was presented at the state court evidentiary

hearing. The first is that most, if not all, of the expert testimony supporting the

defense would have been inadmissible at Reaves’ retrial. While the Florida

Supreme Court, in affirming the denial of state collateral relief, based its decision

defense, would have found that when he killed the deputy Reaves was incapable of forming the
requisite mental state for first-degree murder––the premeditated design to kill.
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on the absence of deficient performance, one of the primary reasons it articulated

in support of that determination was “the law in Florida at the time” of Reaves’

1992 retrial. Reaves, 942 So. 2d at 878. The state high court made clear that state

law, as it existed at the time of the retrial, precluded a voluntary intoxication

defense based on the combined effect of intoxication and an underlying mental

condition that did not rise to the level of legal insanity. Id. at 880. The Florida

Supreme Court’s interpretation of state law is binding on federal courts. The

district court should not have substituted its own interpretation of state law for that

of Florida’s highest court. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67–68, 112

S.Ct. 475, 480 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”). The United States

Supreme Court has instructed us that “state courts are the ultimate expositors of

state law” and federal courts “are bound by their constructions” except in rare and

extreme circumstances. Mullaney v. Wilbur, 421 U.S. 684, 691 & n.11, 95 S.Ct.

1881, 1886 & n.11 (1975). And we have held, in another capital murder case, that

we were bound by the Florida Supreme Court’s determination that a particular type

of voluntary intoxication defense was not cognizable at the time of the petitioner’s

trial. Pietri v. Fla. Dep’t of Corr., 641 F.3d 1276, 1284 (11th Cir. 2011)

(emphasizing that “[a] state supreme court’s interpretation of its law is binding on

federal courts”). That decision applies here.


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      Given the state of the law at the time of Reaves’ retrial, as conclusively

construed by the Florida Supreme Court, the expert opinions of Dr. Dudley, Dr.

Crown, Dr. Parsons, and Dr. Hyde would have been inadmissible because those

opinions were premised not on cocaine use alone, but on the combined effect of

cocaine use and an underlying mental condition, whether PTSD, brain damage, or

poly-substance abuse, that did not rise to the level of legal insanity. Likewise, Dr.

Mash’s conclusion that Reaves would not have been able to form the mental state

required for first-degree murder was not based as much on the amount of cocaine

Reaves allegedly ingested on the day of the shooting, as it was on the effect that

years of chronic substance abuse had on his neurological functioning. The Florida

Supreme Court has consistently held that evidence of a mental defect caused by

chronic drug abuse, including so-called “cocaine psychosis,” is inadmissible under

state law for the purpose of establishing a voluntary intoxication defense. See

Pietri v. State, 885 So. 2d 245, 252 (Fla. 2004) (noting that the Florida Supreme

Court has consistently held that evidence of “metabolic intoxication” due to

persistent drug use is inadmissible at trial to prove a lack of specific intent);

Spencer v. State, 842 So. 2d 52, 62–63 (Fla. 2003) (concluding that evidence of a

defendant’s “dissociative state” resulting, in part, from a long history of alcohol

abuse and “the residual effects of a two-week alcoholic binge” would not have

been admissible during the guilt phase of the defendant’s trial); Street v. State, 636


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So. 2d 1297, 1301 (Fla. 1994) (holding that, because the defendant was not raising

an insanity defense, the trial court properly refused to permit a defense expert to

testify that the defendant was suffering from “the mental infirmity of cocaine

psychosis” at the time of his offense).

      Even Dr. Weitz, who claimed that he could describe the independent effects

of the 1.75 grams of cocaine and alcohol Reaves allegedly consumed before the

shooting, largely premised his opinion on the interplay between cocaine and

Vietnam Syndrome, which he characterized as a “critical factor” in accounting for

Reaves’ actions. Thus, with the possible exception of some limited parts of Dr.

Weitz’s testimony, the opinions of Reaves’ experts would, as a matter of Florida

law, have been inadmissible to demonstrate that he was incapable of forming the

premeditated design to kill that is required for first-degree murder.

      The second reason we are convinced that Reaves has failed to carry his

burden of proving a reasonable probability of a different result if a voluntary

intoxication defense had been pursued is all of the evidence showing that he not

only was capable of formulating a premeditated design to kill the deputy, but also

actually did so. His undisputed actions and statements before and after the murder

prove that he possessed the presence of mind to make a conscious and purposeful

decision to kill the deputy, which negates a voluntary intoxication defense. Reaves

told the officers who questioned him that he had shot the deputy because he


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believed that, as a convicted felon, he was facing a mandatory sentence for

unlawfully possessing a firearm, and he did not want to go back to prison. Those

facts, which are not contradicted by any evidence, prove that Reaves’ actions were

deliberate and motivated by a desire to avoid going back to prison. There is also

the fact that he fired his weapon at the deputy seven times and hit him four times.

See Woods v. State, 733 So. 2d 980, 985 (Fla. 1999) (explaining that, under

Florida law, premeditation may be inferred from “the nature of the weapon used, . .

. the manner in which the homicide was committed, and the nature and manner of

the wounds inflicted”) (quotation marks omitted) (emphasis added).

      Reaves had the presence of mind and mental capacity to immediately flee

the area of the shooting, hide in the woods, and take other evasive action in order

to avoid a sizeable police manhunt as he traveled seven miles on foot. And as soon

as he arrived at Hinton’s home he showered and changed his clothes. Reaves’

ability to later recall the incident in considerable and vivid detail is more evidence

weighing against a voluntary intoxication defense. See Davis v. State, 875 So. 2d

359, 367 (Fla. 2003) (concluding that a defendant’s detailed confession about the

circumstances of his crime “substantially undermined the viability of a voluntary

intoxication defense”).

      The single most damaging piece of evidence presented at the retrial was

Hinton’s testimony (read into evidence) about Reaves’ explanation for why he had


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killed the deputy. He recounted to Hinton how, as the deputy was pleading for his

life, Reaves had told him, “One of us got to go, me or you.” That is an articulation

of a premeditated design to kill, pure and simple. Hinton also testified that Reaves

appeared to be in full control of faculties as he described the incident. Hinton’s

uncontradicted testimony, particularly about what Reaves told him, proves that

Reaves was “conscious of the nature of the act he [was] about to commit and the

probable result of that act,” which rules out a finding that he was too intoxicated to

form the intent required for first-degree murder. See Asay, 580 So. 2d at 612.12

Even assuming that Reaves’ experts would not have been precluded from testifying

at the retrial, none of them was able to adequately explain how Reaves could have

been unable to form a premeditated design to kill in light of his statement to the

deputy that he was going to shoot him because one of them had to go.

       Having heard the evidence presented at the retrial, including Reaves’

repeated references to being “high” on cocaine at the time of the shooting, and

having received an instruction on the defense of voluntary intoxication, the jury

concluded that Reaves was guilty of first-degree (premeditated) murder. We are

not persuaded that there is a reasonable probability that the jury would have

       12
           Although Hinton’s 1999 affidavit, in contradiction to his 1987 trial testimony,
described Reaves as “all strung out” and “out of his head” after the shooting, that affidavit has no
bearing on the question of prejudice. It did not even exist until seven years after the retrial.
Despite the prosecutor’s and the trial court’s best efforts, Hinton refused to testify at the 1992
retrial, which led to the introduction of his trial testimony. Cf. Wlliamson v. Moore, 221 F.3d
1177, 1181 (11th Cir. 2000) (“Counsel cannot be said to be ineffective for failing to call an
unavailable witness.”).
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reached a different result had counsel actively pursued a voluntary intoxication

defense. As the Florida Supreme Court aptly pointed out, Reaves’ actions indicate

that he “knew what he was doing.” See Reaves, 942 So. 2d at 880.

      Unlike the district court, we are not convinced that Reaves’ actions were

bizarre, at least not bizarre enough to support a finding that he lacked the ability to

form a premeditated design to take the deputy’s life. The decision by Reaves, who

was out of coins, to dial 911 for help in securing a cab was ill advised in light of

the fact that he was a felon in possession of a firearm. His decision to immediately

hang up may indicate that he realized that was not a wise course of action. But

people sometimes make bad decisions and do stupid things. While a defendant’s

decision to kill a police officer to avoid arrest and a jail sentence is a bad decision,

a stupid decision, an immoral decision, and a criminal decision, it is not bizarre

enough to establish that Reaves lacked the ability to form a premeditated design to

kill. Because Reaves has failed to carry his burden of proving that he was

prejudiced by trial counsel’s failure to pursue a voluntary intoxication defense, the

district court erred in granting federal habeas relief on his guilt phase claim of

ineffective assistance of counsel. It should have denied relief on that claim.

                    B. PENALTY PHASE INEFFECTIVENESS

      The State also challenges the district court’s decision to grant an evidentiary

hearing on Reaves’ penalty phase claim of ineffective assistance of counsel.


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Although neither party contests our jurisdiction to review that aspect of the district

court’s judgment, “we are obligated to address jurisdictional questions sua sponte”

whenever jurisdiction may be lacking. Thomas v. Blue Cross and Blue Shield

Ass’n, 594 F.3d 814, 818 (11th Cir. 2010) (quotation marks omitted).

      As a general principle, our jurisdiction is limited to reviewing “final

decisions” of district courts, 28 U.S.C. § 1291, meaning those that “end[] the

litigation on the merits and leave[] nothing for the court to do but execute the

judgment,” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983)

(quotation marks omitted). In the context of habeas proceedings, however, we

have held that a judgment granting a writ of habeas corpus on less than all grounds

asserted in a petition is a final, appealable decision within the meaning of § 1291.

Wilson v. Kemp, 777 F.2d 621, 622 (11th Cir. 1985). Nonetheless, that does not

mean that every action taken by a district court in conjunction with granting a

habeas petition constitutes an appealable final decision. Cf. Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 38, 115 S.Ct. 1203, 1206 (1995) (holding that there

was interlocutory appellate jurisdiction to review the district court’s denial of

summary judgment based on qualified immunity to individual officers, but not the

district court’s denial of the county commission’s motion for summary judgment).

      In and of itself, the district court’s grant of an evidentiary hearing on

Reaves’ penalty phase ineffective assistance claim does not constitute a final


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decision on the merits. See Broussard v. Lippman, 643 F.2d 1131, 1133 (5th Cir.

Unit A Apr. 1981) (“When . . . a district court anticipates that further proceedings

on substantive matters may be required, any order it makes to facilitate those

further proceedings is necessarily not final.”). 13 Had the district court rejected

Reaves’ guilt phase claim on the merits but granted an evidentiary hearing on the

penalty phase claim, we would not hesitate to classify the resulting decision as

interlocutory. We see no reason to treat the district court’s decision to conduct an

evidentiary hearing on the sentence stage claim as final and immediately

appealable simply because the court granted Reaves’ habeas petition on a guilt

stage claim.

       Apart from final decisions, we may exercise appellate jurisdiction over

certain interlocutory rulings that fall within 28 U.S.C. § 1292 or the collateral order

doctrine. The district court’s grant of an evidentiary hearing, however, does not fit

under § 1292, see 28. U.S.C. § 1292(a)-(b), nor does it satisfy the requirements of

the collateral order doctrine, which applies only to non-final decisions that

“conclusively determine the disputed question, resolve an important issue

completely separate from the merits of the action, and [are] effectively

unreviewable on appeal from a final judgment,” Wajnstat v. Oceania Cruises, Inc.,


       13
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before
the close of business on September 30, 1981.
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684 F.3d 1153, 1156 (11th Cir. 2012) (quotation marks omitted). The court’s grant

of an evidentiary hearing is not completely separate from the merits of Reaves’

penalty phase claim and, should the district court ultimately grant relief on that

claim, the State will have an opportunity to challenge the propriety of the district

court’s action in conducting an evidentiary hearing on the claim. If such a

challenge occurs and is successful, any evidence admitted at the evidentiary

hearing will have to be disregarded; were it otherwise, there would be no way to

enforce the restrictions imposed by 28 U.S.C. § 2254(e)(2).

      Under the doctrine of pendent appellate jurisdiction, we may also review an

otherwise non-appealable decision that is “inextricably intertwined” with an

appealable decision or when “review of the former decision is necessary to ensure

meaningful review of the latter.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291

(11th Cir. 2010) (quotation marks and alteration omitted). The issue of whether

the district court properly granted an evidentiary hearing on Reaves’ penalty phase

claim is not “inextricably intertwined” with the merits of its decision on his distinct

guilt phase claim, and we have had no difficulty resolving the latter issue without

addressing the former. Because the district court’s grant of an evidentiary hearing

on the penalty phase claim is interlocutory in nature and no exception to the final

judgment rule applies, we lack jurisdiction to review that decision.




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                                IV. CONCLUSION

      For the foregoing reasons, we vacate the district court’s grant of habeas

relief on Reaves’ claim that trial counsel was ineffective in failing to pursue a

voluntary intoxication defense, and remand for further proceedings on Reaves’

outstanding claim of ineffective assistance of counsel during the penalty phase of

his retrial. We do not reach, and do not express any view on, whether the

petitioner is entitled to an evidentiary hearing on that claim.

      VACATED AND REMANDED.




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