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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 18-11421
                         ________________________

                D.C. Docket No. 8:17-cv-00985-VMC-TGW



MICHAEL L. KING,

                                                         Petitioner - Appellant,

                                   versus



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

                                                       Respondents - Appellees.

                         ________________________

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

                            (October 25, 2019)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

MARTIN, Circuit Judge:
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      Michael King, a Florida death row inmate, appeals the District Court’s

denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. King has

raised three issues in this appeal: (1) whether trial counsel rendered ineffective

assistance of counsel for failing to preserve a challenge to a peremptory strike

under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) and J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419 (1994); (2) whether trial

counsel rendered ineffective assistance of counsel for failing to investigate Mr.

King’s exposure to toxic substances; and (3) whether the District Court violated

due process or otherwise abused its discretion by adopting portions of the State’s

response brief in its order denying Mr. King’s § 2254 petition. After careful

consideration, and with the benefit of oral argument, we affirm the denial of Mr.

King’s habeas petition.

             I. BACKGROUND AND PROCEDURAL HISTORY

      Mr. King was convicted and sentenced to death in 2009 for the murder,

kidnapping, and involuntary sexual battery of Denise Amber Lee. See King v.

State (“King I”), 89 So. 3d 209, 219 (Fla. 2012). Mr. King’s crimes against Mrs.

Lee were nightmarish. The horrific nature of his crimes is not disputed, so we will

not elaborate on them here. Rather, in this appeal we address whether the

performance of Mr. King’s trial counsel was deficient and whether the District




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Court erred when it incorporated portions of the State’s response brief into its

order.

A. RELEVANT TRIAL PROCEEDINGS

         At his trial, Mr. King was represented by Carolyn Schlemmer, John Scotese,

and Jerome Mesiner. See King v. State (“King II”), 211 So. 3d 866, 879 (Fla.

2017). Ms. Schlemmer had been working on death penalty cases “for the better

part of 20 years” at the time she came to represent Mr. King. Mr. Scotese had

handled one capital case and therefore met the qualifications to handle capital

cases on his own, while Mr. Mesiner did not. See id. at 884.

         During voir dire, the State moved to use a peremptory challenge of Juror

111, an African American woman. Mr. Scotese objected and asked for a “race

neutral” justification for the strike. The State responded with:

         On Juror Number 111, she’s an 18-year-old female. She came across
         as meek, young and inexperienced. She’s the youngest on the panel we
         have existing so far. Her statement during the original death
         qualification was that living life in prison is more awful than a death
         sentence. Her brother has a pending felony drug charge. She watches
         the television show CSI. Commonly, a concern of ours is that they
         would hold us to a TV standard as opposed to a regular standard. And
         based on these foregoing reasons, we exercise our peremptory
         challenge on Number 111.

In response, the trial court stated that other jurors on the panel “watch CSI or

watch Perry Mason or whatever.” The State then asserted that “[our] race neutral

reason, this is not a challenge for cause, she indicated that living a life in prison is

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more awful than a death sentence.” The trial court explained that “[o]ther jurors

have said the same thing.” In response, the State said it would “strike [the] other

jurors . . . remaining on the panel that have said” life without parole is worse than

the death sentence.

      The trial court then repeated that Juror 111’s brother “has a pending . . .

criminal charge” and the State confirmed this was true. Thus, the trial court found

that Juror 111’s brother’s pending drug charge was “a genuine race neutral reason”

for removing Juror 111 from the jury, and overruled Mr. Scotese’s objection to the

State’s peremptory challenge.

      Also relevant to this appeal is the penalty-phase evidence of Mr. King’s

mental health. Mr. King offered the testimony of Dr. Joseph Chong Sang Wu, who

conducted a PET scan and concluded that Mr. King had a traumatic brain injury.

King II, 211 So. 3d at 876. Dr. Wu testified that people who suffer frontal lobe

injuries are more likely to have poor judgment, exhibit blunted affect, take

excessive risks, have difficulty regulating impulses such as aggression, and have

difficulty separating fantasy from reality. Id. at 876–77. According to Dr. Wu,

Mr. King’s “most recent verbal IQ score placed him in the borderline retarded

range.” Id. at 877. Mr. King also presented the testimony of Dr. Kenneth Visser,

who performed an IQ test on Mr. King. That testing of Mr. King produced a

verbal IQ score of 71, a performance IQ score of 85, and a full-scale IQ of 76. Id.

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Dr. Visser testified that this placed King in the borderline intellectual functioning

range. Id.

      Ultimately, the jury unanimously recommended a sentence of death. King

II, 211 So. 3d at 878. The trial court found the existence of two statutory

mitigating circumstances: (1) Mr. King’s capacity to appreciate the criminality of

his conduct or conform his conduct to the requirements of the law was

substantially impaired (moderate weight), and (2) his age, thirty-six (little weight).

Id. The trial court further found that Mr. King had established thirteen

nonstatutory mitigating circumstances. See id. at 878–79. Nonetheless, the trial

court found that the State proved four aggravating circumstances beyond a

reasonable doubt and sentenced Mr. King to death. Id. at 878.

B. DIRECT APPEAL

      On direct appeal, the Florida Supreme Court affirmed Mr. King’s

convictions and death sentence. King I, 89 So. 3d at 212. The United States

Supreme Court denied his petition for writ of certiorari on October 15, 2012. King

v. Florida, 568 U.S. 964, 133 S. Ct. 478 (2012).

C. STATE COLLATERAL PROCEEDINGS

      In September 2013, Mr. King filed a motion for postconviction relief in the

trial court under Florida Rule of Criminal Procedure 3.851. In his Rule 3.851

motion, Mr. King argued, among other things, that his trial counsel was ineffective

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for failing to investigate and present evidence regarding his exposure to toxic

substances and for failing to properly preserve a Batson/J.E.B. challenge for direct

appeal. After conducting an evidentiary hearing, the state postconviction court

issued a written order denying relief in August 2014. The Florida Supreme Court

affirmed the denial of relief in January 2017, King II, 211 So. 3d at 870–71, and

denied his motion for rehearing on March 13, 2017.

D. FEDERAL HABEAS PROCEEDINGS

      Mr. King filed his § 2254 petition in the District Court on April 27, 2017.

He sought relief on six grounds. For our purposes, Mr. King raised both of his

ineffective assistance of counsel claims and asserted that the Florida Supreme

Court’s resolution of those claims was contrary to Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984). In particular, Mr. King argued that his trial

counsel was ineffective for failing to investigate the effects of the toxins Mr. King

was exposed to during his childhood and in his job as a plumber. He also raised

the Batson/J.E.B. issue again.

      The District Court denied habeas relief and held that the Florida state courts

reasonably applied Strickland in ruling that Mr. King failed to establish that his

trial counsel’s failure to investigate his exposure to toxic substances was deficient.

The District Court found that trial counsel consulted several experts to ascertain

whether Mr. King suffered any neurological disorders. Further, one of these

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experts discussed Mr. King’s exposure to toxins from rat poisoning and crack pipe

fumes, but, at the time of trial, neither Mr. King, his family, the investigator, nor

the medical experts alerted Mr. King’s trial counsel to the possible exposure of

toxic chemicals from growing up near farms or from his plumbing career. As a

result, the District Court held that Mr. King’s trial counsel had no reasonable basis

for further toxin exposure investigation, so was not ineffective. The District Court

also ruled Mr. King’s trial counsel was not ineffective for failing to preserve the

Batson/J.E.B. challenge for direct appeal because there was evidence that Mr.

King’s trial counsel did not want Juror 111—the juror at issue—on the jury.

                           II. STANDARD OF REVIEW

A. HABEAS STANDARDS

      Under § 2254, a prisoner held “in custody pursuant to the judgment of a

State court” may seek habeas relief “only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States. 28 U.S.C.

§ 2254(a). Generally, a prisoner must first “fairly present” his federal claims to the

state court and exhaust his state court remedies before seeking federal habeas

relief. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (alteration

adopted and quotation marks omitted). When a state court has adjudicated a

prisoner’s claims on the merits, this Court’s review is governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, this

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Court may not grant habeas relief with respect to such a claim unless the state

court’s adjudication:

      (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.

28 U.S.C. § 2254(d). The AEDPA standard is “highly deferential” and “demands

that state-court decisions be given the benefit of the doubt.” Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013) (en banc) (quotation marks

omitted). A decision “is not ‘contrary to’ federal law unless it contradicts the

United States Supreme Court on a settled question of law or holds differently than

did that Court on a set of materially indistinguishable facts.” Id. (quotation marks

omitted). A state court’s decision is not “an unreasonable application of federal

law unless the state court identifies the correct governing legal principle as

articulated by the United States Supreme Court, but unreasonably applies that

principle to the facts of the petitioner’s case, unreasonably extends the principle to

a new context where it should not apply, or unreasonably refuses to extend it to a

new context where it should apply.” Id. (citation omitted). When assessing a

§ 2254 petition under AEDPA, we do not ask whether the state court decision is

correct, but rather whether it is reasonable. Id.

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      A district court’s denial of a habeas corpus petition is reviewed de novo.

Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). “It is the petitioner’s burden

to establish his right to habeas relief[,] and he must prove all facts necessary to

show a constitutional violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th

Cir. 2008) (citation omitted). The state court’s factual determinations are entitled

to a presumption of correctness, and Mr. King bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

B. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS UNDER
   AEDPA

      To establish a case of ineffective assistance of counsel, a petitioner must

show that (1) his counsel’s performance was deficient and (2) his defense was

prejudiced by the deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064. There is a strong presumption that counsel’s performance “falls within the

wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065.

Trial counsel’s performance will not be considered deficient unless counsel’s

representation fell below an objective standard of reasonableness or was “outside

the wide range of professional competent assistance.” Id. To demonstrate

prejudice, “[t]he defendant must show that there is a reasonable probability that,

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

been different.” Id. at 694, 104 S. Ct. at 2068. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. If a petitioner
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fails to make a sufficient showing on either prong of the inquiry, his ineffective

assistance of counsel claim fails. Id. at 687, 104 S. Ct. at 2064.

       AEDPA adds another layer of deference to the Strickland analysis. See, e.g.,

Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010). To prevail on either of his

ineffective assistance of counsel claims, Mr. King must therefore establish that

(1) he has satisfied the elements of the Strickland standard and (2) that the State

court applied Strickland in a manner that was contrary to, or involved an

unreasonable application of clearly established Supreme Court precedent, or that

the State court applied Strickland to facts it unreasonably determined. See id.

                                      III. DISCUSSION

A. INEFFECTIVE ASSISTANCE – BATSON/J.E.B. CLAIM

       We begin with Mr. King’s ineffective assistance of counsel claim regarding

the State’s peremptory strike of Juror 111. He first argues that the Florida

Supreme Court’s determination that Ms. Schlemmer strategically chose to forgo a

challenge to Juror 111 was an unreasonable determination of the facts under our

decision in Davis v. Sec’y for Dept. of Corr., 341 F.3d 1310 (11th Cir. 2003). 1 He


       1
          Mr. King also asserts that the Florida Supreme Court “was not able to complete an
adequate review of the Batson claim on direct appeal” because he claims his trial counsel was
otherwise deficient in (1) failing to identify the race of similarly situated jurors; (2) failing to
correct the trial court and the prosecutor’s misunderstanding of Juror 111’s questionnaire;
(3) failing to conduct a comparative juror analysis; and (4) failing to raise a J.E.B. challenge to
the State’s peremptory strike of Juror 111. We decline to address these arguments because our
resolution of Mr. King’s Batson claim renders them moot. In particular, as we explain below, we
conclude that we must affirm the District Court’s determination of Mr. King’s Batson claim
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points out that after the State sought to use a peremptory strike on Juror 111, Ms.

Schlemmer stated that “we just have an issue” and Mr. Scotese raised the

objection. Mr. King says this record shows that Ms. Schlemmer sought to object to

the State removing Juror 111 from the jury. Mr. King also maintains that Ms.

Schlemmer inappropriately offered post hoc rationalizations for her decision under

Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003). Under the governing

standards, these arguments fail.

       Mr. King has not shown that the Florida Supreme Court’s assessment of trial

counsel’s performance is contrary to or an unreasonable application of clearly

established federal law, or an unreasonable determination of the facts. On this

record, the Florida Supreme Court’s determination that Mr. King’s trial counsel

made a tactical decision to allow the State to strike Juror 111 was not

unreasonable. The Florida Supreme Court noted Ms. Schlemmer’s testimony that

although she did not have a specific recollection of the jury selection, based on the

large “NO” written next to notes about Juror 111 she did not want Juror 111 on the

panel. Based on this, she implied that further pressing of a Batson challenge was

unnecessary. Further, even if Ms. Schlemmer was not the person who wrote “NO”

next to the entry for Juror 111, Ms. Schlemmer was lead counsel during jury



because the State court’s determination that trial counsel’s decision not to press the Batson claim
was a permissible strategic one, was not contrary to or an unreasonable application of clearly
established federal law, and it was not based on an unreasonable determination of the facts.
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selection and oversaw the objections raised by others on her team. Thus the

Florida Supreme Court reasonably determined that, as a matter of trial strategy,

Mr. King’s trial counsel made a decision to allow the State to strike Juror 111. In

other words, the Florida Supreme Court did not apply the facts in an objectively

unreasonable manner when it rejected Mr. King’s Batson/J.E.B. claim. 28 U.S.C.

§ 2254(d). And it did not unreasonably apply Strickland when it denied Mr.

King’s claim because under Strickland, an attorney does not perform

incompetently when, as here, she makes a strategic decision that other competent

attorneys might have made.

      We need not address the merits of Mr. King’s prejudice argument because

he failed to make a showing of deficient performance. See Osley v. United States,

751 F.3d 1214, 1222 (11th Cir. 2014) (noting “a court need not address both

prongs if the defendant has made an insufficient showing on one”).

B. INEFFECTIVE ASSISTANCE – TOXIN EXPOSURE EVIDENCE

      Mr. King next argues his trial counsel was ineffective during the penalty

phase of his trial because she failed to investigate and present evidence showing

Mr. King was exposed to harmful toxins throughout his life. Mr. King says that,

had his trial counsel investigated and presented evidence of his exposure to toxic

substances, that evidence would have explained Mr. King’s behavior and provided

an additional explanation of his low IQ and brain injury. In particular, Mr. King

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claims “the deficient performance in this case stems not from the complete lack of

investigation or consultation with experts, but rather from a lack of consultation

with an expert specifically tailored to the needs of Mr. King’s case.”

      As set out above, the Florida Supreme Court noted that trial counsel

consulted several experts to ascertain whether Mr. King suffered any neurological

disorders. The Court noted further that, at the time of trial, neither Mr. King, his

family, the investigator, nor the medical experts alerted Mr. King’s trial counsel to

his possible exposure of toxic chemicals from growing up near farms or in the

course of his plumbing career. King II, 211 So. 3d at 882–83. The record supports

this assessment by the Florida Supreme Court. Ms. Schlemmer testified she

consulted with seven psychologists, one of whom reported no neurotoxic exposure.

And, during her investigation, Mr. King reported only exposure to the possible

toxic substance of “crack pipe fumes,” “marijuana,” and “rat poison.” The Florida

Supreme Court reasonably summarized trial counsel’s investigation and noted that

“[t]hrough her persistence, [Ms.] Schlemmer was able to present some mitigating

mental health evidence via the testimony of Dr. Wu.” King II, 211 So. 3d at 882.

Given these facts, and viewing counsel’s performance through the lens of AEDPA

deference, we conclude that the scope of trial counsel’s investigation was

reasonable. See Strickland, 466 U.S. at 699, 104 S. Ct. at 2070 (holding that

“counsel made a strategic choice to argue for the extreme emotional distress

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mitigating circumstance” and that “strategy choice was well within the range of

professionally reasonable judgments”); Williams v. Allen, 598 F.3d 778, 793–94

(11th Cir. 2010) (holding counsel’s presentation of voluntary intoxication evidence

was not deficient and, by failing to “demonstrate[] that counsel needed to argue

further,” petitioner could not show counsel’s strategy was unreasonable); see also

Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir. 2008) (“In evaluating the

reasonableness of a defense attorney’s investigation, we weigh heavily the

information provided by the defendant.”).

C. DUE PROCESS CLAIM

      Finally, Mr. King argues that the District Court violated his due process

rights and abused its discretion by incorporating portions of the State’s response

brief into its order denying Mr. King’s § 2254 petition. This argument fails as

well, however, because a court’s adoption of portions of a party’s brief does not

render its decision fundamentally unfair.

      We caution district courts against this practice. However, the findings

contained in the District Court’s order, “though not the product of the workings of

the district judge’s mind, are formally [hers]; they are not to be rejected out-of-

hand, and they will stand if supported by evidence.” United States v. El Paso

Natural Gas, 376 U.S. 651, 656, 84 S. Ct. 1044, 1047 (1964). There is no evidence

here “that the process by which the [District Court] arrived at [the decision] was

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fundamentally unfair.” See In re Colony Square Co., 819 F.2d 272, 276 (11th Cir.

1987) (holding that orders drafted by a litigant without notice to the opposing party

are not automatically invalid). This is not a case in which the District Court issued

a “one-sentence summary denial[],” depriving us the opportunity to conduct

meaningful appellate review. Danley v. Allen, 480 F.3d 1090, 1091 (11th Cir.

2007) (holding district court orders “should contain sufficient explanations of their

rulings”). On the contrary, the District Court set forth its reasons for denying each

of Mr. King’s six claims in a 91-page order. We do not view the District Court’s

actions as depriving Mr. King of his right “to an impartial and disinterested

tribunal.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 1613

(1980); see also Williams v. Pa., ___ U.S. ___, 136 S. Ct. 1899, 1909 (2016)

(“Both the appearance and reality of impartial justice are necessary to the public

legitimacy of judicial pronouncements.”). Because the District Court’s adoption of

portions of the State’s brief in its opinion did not deprive Mr. King of a fair and

impartial tribunal, we must deny Mr. King’s claim.

                                IV. CONCLUSION

      The Florida Supreme Court’s assessment of Mr. King’s trial counsel’s

performance was not contrary to or an unreasonable application of federal law.

Mr. King cannot, therefore, prevail on either of his ineffective assistance of

counsel claims. Also, although we do not endorse district courts indiscriminately

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incorporating a party’s brief into their orders, there is no prohibition on the District

Court from including in its order portions of a party’s brief that are supported by

the evidence.

      AFFIRMED.




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