                    Case: 11-15936         Date Filed: 12/17/2012    Page: 1 of 6


                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15936
                                      ________________________

                            D.C. Docket No. 8:09-cv-02200-EAK-EAJ

SAMUEL SMITHERS,

llllllllllllllllllllllllllllllllllllllll                                Petitioner - Appellant,

                                                 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                  llllllllllllllllllllllllllllllllllllll Respondents - Appellees.
                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________
                                     (December 17, 2012)


Before TJOFLAT, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

         Petitioner Samuel Smithers, a Florida prisoner on death row, appeals from

the district court’s denial of his first petition for writ of habeas corpus, brought
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pursuant to 28 U.S.C. § 2254. This Court granted Smithers a limited certificate of

appealability on his claim that his trial counsel was ineffective at the penalty phase

of his capital trial. Smithers asserts two grounds in support of this claim: (1) trial

counsel failed to provide Smithers’s expert witness, Dr. Michael Maher, with

adequate background information to permit a meaningful evaluation of Smithers

for mitigation purposes; and (2) trial counsel failed to consult an independent

expert to refute the testimony of the medical examiner. Because our review of the

totality of the evidence leads us to conclude that Smithers has failed to establish

that he was prejudiced by counsel’s alleged deficient performance, we affirm the

district court’s judgment denying habeas relief.

      “We review de novo a district court’s grant or denial of a habeas corpus

petition.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). To warrant

habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Smithers must establish not only that his constitutional claim is

meritorious, but also that the state court’s adjudication of that claim:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the State
      court proceeding.

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28 U.S.C. § 2254(d); see also Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d

1333, 1336 (11th Cir. 2012).

       The merits of Smithers’s ineffective assistance of counsel claim are

“squarely governed” by the Supreme Court’s holding in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052 (1984). See Williams v. Taylor, 529 U.S. 362, 390,

120 S. Ct. 1495, 1511 (2000). Under Strickland, Smithers must show that

“counsel’s performance was deficient” and that “the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Since a

habeas petitioner must show both deficiency and prejudice, we may dispose of a

Strickland claim based on a determination that a defendant has failed to show

either prong without considering the other. See Strickland, 466 U.S. at 697, 104

S. Ct. at 2069. We do so in Smithers’s case.

       Assuming, without deciding, that Smithers could show his trial counsel’s

performance was deficient and that he could pierce AEDPA’s deference,1 we

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           It is not necessary to devote the resources to deciding the question of whether AEDPA
deference applies in this case because, even if AEDPA deference does not apply, Smithers
“cannot show prejudice under de novo review, the more favorable standard for review” for
Smithers. Berghuis v. Thompkins, ___ U.S. ___, ___, 130 S. Ct. 2250, 2265 (2010). “Courts
can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is
unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a
writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).” Id.
Insofar as it aids the court in deciding these complex cases, it is not unusual for this Court to
affirm the denial of § 2254 relief after conducting de novo review without resolving whether

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conclude that he has not demonstrated Strickland prejudice even under de novo

review. We have carefully reviewed the Florida Supreme Court’s two written

opinions which together detail the facts and circumstances underlying Smithers’s

offense, trial, penalty phase, and state postconviction proceedings. See Smithers

v. State, 18 So. 3d 460 (Fla. 2009) (affirming denial of postconviction relief);

Smithers v. State, 826 So. 2d 916 (Fla. 2002) (affirming convictions and death

sentence on direct appeal). We have also independently reviewed the entire state

court record, given due consideration to the parties’ briefs, and had the benefit of

oral argument. In sum, we have carefully considered “‘the totality of the available

mitigation evidence—both that adduced at trial, and the evidence adduced in the

habeas proceeding’—and ‘reweig[hed] it against the evidence in aggravation.’”

Porter v. McCollum, ___U.S.___, ___, 130 S. Ct. 447, 453–54 (2009) (quoting

Williams, 529 U.S. at 397–398, 120 S. Ct. at 1515). Based upon the evidence in

the state court record and Strickland, we conclude there is no “reasonable



AEDPA deference applies. See, e.g., Wellons v. Warden, 695 F.3d 1202, 1213 (11th Cir. 2012);
Owen v. Fla. Dep’t of Corr., 686 F.3d 1181, 1201 (11th Cir. 2012); Trepal v. Sec’y, Fla. Dep’t of
Corr., 684 F.3d 1088, 1109–10 (11th Cir. 2012); Payne v. Allen, 539 F.3d 1297, 1318 n.18 (11th
Cir. 2008). In doing so here, we emphasize that we are not deciding whether AEDPA deference
applies to the state court’s decision. We are of course well aware that the Supreme Court has
repudiated the notion that AEDPA’s “unreasonableness question” is the same as an appellate
court’s “confidence in the result it would reach under de novo review.” Harrington v. Richter,
___ U.S. ___, ____, 131 S. Ct. 770, 786 (2011).

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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.

        The evidence presented at the trial and penalty phases leads us to conclude

that the evidence presented during the postconviction hearing “would barely have

altered the sentencing profile presented to the sentencing judge.” Id. at 700, 104

S. Ct. at 2071. This is not a case involving an eleventh hour investigation and the

presentation of only some mitigation. On the contrary, trial counsel confronted

Smithers’s penalty phase jury with substantial mitigating evidence, including the

testimony of family members, friends, and three mental health experts who

testified to the existence of compelling statutory and nonstatutory mitigating

circumstances. See Smithers, 826 So. 2d at 921–22. Yet, the jury returned

unanimous death recommendations as to each of the two victims. Id. at 922. And

despite the state’s presentation of three rebuttal experts during the penalty phase,

the sentencing court still found and gave weight to significant statutory and

nonstatutory mitigating circumstances. Id. The trial court determined the

substantial aggravating circumstances outweighed the mitigating circumstances

and sentenced Smithers to death. Id.



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      While we recognize that Dr. Maher testified during the postconviction

hearing that he would have changed his diagnosis of Smithers in light of evidence

that he said was never given to him by trial counsel, we agree with the Florida

Supreme Court’s assessment that Dr. Maher’s revised opinion does not establish a

reasonable probability of a different outcome for Smithers. Smithers, 18 So. 3d at

468–69. We also agree with the Florida Supreme Court’s conclusion that

presentation of an independent medical examiner would not have meaningfully

impacted the aggravating side of the ledger in this case. Id. at 471–72. Although

the postconviction evidence could have undermined the state’s penalty phase

closing argument that victim Cowan drowned, that same postconviction testimony

“supported, rather than contradicted, the finding that Cowan was strangled to

death.” Id. at 471. In short, we agree with the Florida Supreme Court’s

assessment of the medical examiner issue. Id. at 471–72. Smithers’s

postconviction evidence does not undermine our confidence as to existence of the

aggravating circumstances in this case.

      For all of these reasons, we affirm the district court’s denial of habeas relief.

AFFIRMED.




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