              Case: 12-16158     Date Filed: 03/12/2014    Page: 1 of 30


                                                                           [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 12-16158
                            ________________________

                     D.C. Docket No. 6:08-cv-01719-GAP-KRS

JAMES HITCHCOCK,
                                                                  Petitioner-Appellant,


                                        versus



SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,

                                                              Respondents-Appellees.

                            ________________________

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

                                  (March 12, 2014)

Before CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

CARNES, Circuit Judge:

      James Hitchcock, a Florida inmate sentenced to death for the strangulation

murder of a thirteen-year-old girl, appeals the denial of his petition for a writ of
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habeas corpus under 28 U.S.C. § 2254. He contends that his Eighth and

Fourteenth Amendment rights were violated at his latest resentencing proceeding

when the state trial court refused to admit and consider, as relevant mitigating

evidence, the prosecution’s offer to recommend a life sentence in exchange for a

guilty plea to first-degree murder, an offer that Hitchcock rejected. He also

contends that counsel at the resentencing hearing was ineffective for failing to

elicit testimony from the defense’s mental health expert about the applicability of

two statutory mitigating factors and for failing to seek a neuropsychological

evaluation for the presence of possible brain damage.

                                           I.

      The lengthy and complicated history of this case dates back thirty-seven

years. In the summer of 1976, Hitchcock raped his brother’s thirteen-year-old

stepdaughter and then strangled her to death after she threatened to report the

sexual assault. He was indicted on a single count of first-degree murder and, after

rejecting the prosecution’s offer to recommend a life sentence in exchange for a

guilty plea, was convicted at trial and sentenced to death. The Florida Supreme

Court affirmed his conviction and capital sentence on direct appeal, see Hitchcock

v. State, 413 So. 2d 741 (Fla. 1982), and the state courts rejected his initial

attempts to obtain post-conviction relief, see Hitchcock v. State, 432 So. 2d 42

(Fla. 1983).


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      In May of 1983, Hitchcock filed a federal habeas petition under § 2254,

which the district court denied and that denial was affirmed on appeal. See

Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir. 1985) (en banc). The Supreme

Court, however, granted his petition for a writ of certiorari and vacated his death

sentence because the penalty phase jury was instructed not to consider, and the

sentencing judge refused to consider, evidence of non-statutory mitigating

circumstances. See Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 1824

(1987). Following his first resentencing proceeding, which again resulted in a

sentence of death, Hitchcock challenged the state trial court’s refusal to admit the

prosecution’s plea offer as relevant mitigating evidence at sentencing. The Florida

Supreme Court rejected that challenge on appeal, concluding that the offer was not

relevant mitigating evidence under the constitutional rule announced in Lockett v.

Ohio, 438 U.S. 586, 98 S.Ct. 2954 (1978), because it had no bearing on

Hitchcock’s character, record, or the circumstances of his crime. Hitchcock v.

State, 578 So. 2d 685, 689–91 (Fla. 1990), vacated on other grounds by Hitchcock

v. Florida, 505 U.S. 1215, 112 S.Ct. 3020 (1992).

      Hitchcock nevertheless managed to obtain two more penalty phase

proceedings, each in its turn resulting in death sentences. After the third death

sentence was vacated, see Hitchcock v. State, 673 So. 2d 859, 860 (Fla. 1996), the

fourth and (so far) last sentencing hearing was conducted in September 1996. At


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that sentencing hearing, the defense called Dr. Jethro Toomer, a clinical and

forensic psychologist, who testified that Hitchcock suffered from borderline

personality disorder resulting in lifelong “personality difficulties,” which would

have affected him at the time of the murder by causing him to act impulsively. Dr.

Toomer did not, however, diagnose Hitchcock with any major psychiatric disorder,

nor was he specifically asked by defense counsel about the presence of two

statutory mitigating circumstances — whether the crime was committed while

Hitchcock was under the influence of extreme mental or emotional disturbance,

and whether his capacity to appreciate the criminality of his conduct or conform

his conduct to the law was substantially impaired. See Fla. Stat. § 921.141(6)(b),

(f) (1996). Defense counsel did argue during closing arguments that Hitchcock

was under the influence of extreme mental or emotional disturbance at the time of

the offense.

      In the 1996 resentencing proceeding, the jury recommended the death

penalty by a vote of ten to two and the trial court followed that recommendation,

finding that the aggravating circumstances of Hitchcock’s crime outweighed the

mitigating ones. The court found four statutory aggravating circumstances: (1) the

crime was committed while Hitchcock was under a sentence of imprisonment;

(2) he committed the crime while engaged in the felony of sexual battery; (3) the

crime was committed for the purpose of avoiding arrest; and (4) the crime was


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especially heinous, atrocious, or cruel. The trial court found only one statutory

mitigating circumstance, that Hitchcock was 20 years old at the time of the murder,

and several non-statutory mitigating circumstances, which it gave comparatively

little weight. The non-statutory mitigating circumstances found by the trial court

included that Hitchcock was under the influence of lifelong personality difficulties

at the time of the offense, that he suffered from borderline personality disorder, and

that the offense resulted from an unplanned, impulsive act. The Florida Supreme

Court affirmed the death sentence on appeal and, in doing so, again rejected

Hitchcock’s contention that the sentencing judge erred in excluding evidence of the

prosecution’s rejected plea offer. See Hitchcock v. State, 755 So. 2d 638, 645 (Fla.

2000). The court explained that the claim was barred because it had been

considered and rejected on the merits during Hitchcock’s appeal from his first

resentencing proceeding. Id.

      In 2001 Hitchcock filed a state motion for post-conviction relief from his

latest death sentence, contending, among other things, that counsel at his

sentencing proceeding was ineffective for failing to (1) specifically elicit testimony

from Dr. Toomer about the presence of the two statutory mental health mitigators

and (2) have him evaluated by a neuropsychologist for indications of organic brain

damage. After holding an evidentiary hearing, which was marked by conflicting

expert testimony about the presence, extent, and influence of possible brain


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damage, the state trial court rejected the claims of ineffective assistance of counsel

on the merits.

      The Florida Supreme Court affirmed the denial of post-conviction relief,

concluding that Hitchcock was not prejudiced by his counsel’s failure to ask Dr.

Toomer for his ultimate opinion about the applicability of the statutory mental

health mitigators in light of “the extensive mitigation that was presented” at

resentencing, including Dr. Toomer’s testimony that Hitchcock was experiencing

the effects of borderline personality disorder at the time of the offense, and “the

extremely weighty aggravators proven in this case.” Hitchcock v. State, 991 So.

2d 337, 356–58 (Fla. 2008). The Florida Supreme Court further found that

counsel’s failure to seek a neuropsychological evaluation was neither deficient nor

prejudicial given the “conflicting expert testimony presented” during the post-

conviction hearing, the speculative nature of Hitchcock’s contention that he

suffered from brain damage at the time of the murder, and the “extremely weighty”

aggravating factors in the case. Id. at 360. The court also noted that several

mental health experts had testified about “Hitchcock’s normal intelligence, lack of

mental illness, and positive adaptation to prison life.” Id. at 360–61.

      Hitchcock filed his current federal habeas petition in October 2008,

reiterating his claims challenging his 1996 death sentence. The district court

denied the § 2254 petition but granted Hitchcock a certificate of appealability


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(COA) on his claim that evidence of the prosecution’s plea offer was improperly

excluded during his last resentencing proceeding. We later expanded the COA to

include Hitchcock’s two claims of ineffective assistance of resentencing counsel.

                                         II.

      We review de novo the denial of a federal habeas petition. Jamerson v.

Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts

may not grant habeas relief on a claim adjudicated on the merits in state court

unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law”

refers only to the legal principles embodied in the holdings of the United States

Supreme Court. See Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 1173

(2010); Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). And a state court’s

application of clearly established federal law cannot be deemed unreasonable

unless “no ‘fairminded jurist’ could agree” with the state court’s conclusion.

Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012)

(quoting Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 786 (2011)).




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                                           A.

      Hitchcock contends that he was deprived of his constitutional right to

present relevant mitigating evidence at his 1996 resentencing when the state trial

court excluded from evidence and refused to consider the State’s pretrial offer to

recommend a life sentence in return for a guilty plea. Hitchcock insists that the

plea offer, which he rejected, is relevant because it shows that the prosecution

believed that a death sentence was not warranted in his case.

      The Supreme Court has held that “the Eighth and Fourteenth Amendments

require that the sentencer, in all but the rarest kind of capital cases, not be

precluded from considering, as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98

S.Ct. at 2964–65 (plurality opinion); see also Eddings v. Oklahoma, 455 U.S. 104,

110, 102 S.Ct. 869, 874 (1982) (adopting the rule announced by the plurality in

Lockett). The Court has emphasized, however, that this rule does not “limit[] the

traditional authority of a court to exclude, as irrelevant, evidence not bearing on the

defendant’s character, prior record, or the circumstances of his offense.” Lockett,

438 U.S. at 604 n.12, 98 S.Ct. at 2965 n.12.

      This constitutional rule, and its associated limitation, reflects “the principle

that punishment should be directly related to the personal culpability of the


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criminal defendant.” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947

(1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.

2242 (2002). While the circumstances of a defendant’s crime are related to his

culpability, his “background and character [are also] relevant because of the belief,

long held by society, that defendants who commit criminal acts that are attributable

to a disadvantaged background, or to emotional and mental problems, may be less

culpable than defendants who have no such excuse.” Id. (quotation marks

omitted). As framed by the Supreme Court, the question of constitutional

relevance turns on whether the proffered mitigating evidence has “any tendency to

mitigate the defendant’s culpability” or might otherwise serve as a reasonable basis

for imposing a sentence less than death. Tennard v. Dretke, 542 U.S. 274, 284–87,

124 S.Ct. 2562, 2570–71 (2004).

      Although the mitigating circumstances standard is a broad one, it is not

without boundaries. As Justice O’Connor pointed out in Franklin v. Lynaugh,

“[n]othing in Lockett or Eddings requires that the sentencing authority be

permitted to give effect to evidence beyond the extent to which it is relevant to the

defendant’s character or background or the circumstances of the offense.” 487

U.S. 164, 185–86, 108 S.Ct. 2320, 2333 (1988) (O’Connor, J., concurring in the

judgment). The decision in Franklin underscores that point. It held that the

Constitution “in no way mandates reconsideration by capital juries, in the


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sentencing phase, of their residual doubts over a defendant’s guilt,” because

“[s]uch lingering doubts are not over any aspect of petitioner’s character, record, or

a circumstance of the offense.” Id. at 174, 108 S.Ct. at 2327 (plurality opinion)

(quotation marks omitted). Likewise, a plea offer from the prosecutor is not

evidence about “any aspect of petitioner’s character, record, or a circumstance of

the offense.” Id.

      The Sixth Circuit’s recent en banc decision in United States v. Gabrion

provides a helpful analogy. See 719 F.3d 511 (6th Cir. 2013) (en banc). In that

case the capital murder was committed inside the State of Michigan, which has no

death penalty, but it was also committed 227 feet inside a National Forest, which

subjected the defendant to the territorial jurisdiction of the United States and the

federal death penalty. Id. at 515–18. The Sixth Circuit rejected the contention that

the location of the murder was a mitigating circumstance, either because Gabrion

committed it in a state that has no death penalty or because if he had committed it

228 feet away from where he did he would not have faced a death sentence. Id. at

520–24. The Court pointed out that the focus of the mitigating circumstances

standard on the defendant’s character, background, and the circumstances of his

offense, particularly as they relate to the question of culpability, is reflected in the

types of evidence that the Supreme Court has held to be mitigating: evidence of a

defendant’s youth, abusive upbringing, and emotional disturbance, see Eddings,


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455 U.S. at 115, 102 S.Ct. at 877; evidence of a defendant’s low IQ or impaired

intellectual functioning, see Tennard, 542 U.S. at 287–88, 124 S.Ct. at 2571–72;

evidence of a defendant’s post-crime rehabilitation or good behavior in prison, see

Skipper v. South Carolina, 476 U.S. 1, 4–5, 106 S.Ct. 1669, 1670–71 (1986);

evidence of a defendant’s military service and hardships suffered during it, see

Porter v. McCollum, 558 U.S. 30, 39–40, 130 S.Ct. 447, 453 (2009); evidence of a

defendant’s religious conversion while in prison, see Wong v. Belmontes, 588 U.S.

15, 21, 130 S.Ct. 383, 387 (2009); evidence that a defendant was intoxicated at the

time of the crime, see Parker v. Dugger, 498 U.S. 308, 314, 111 S.Ct. 731, 736

(1991); and evidence that the defendant played a minor role in the offense, see

Enmund v. Florida, 458 U.S. 782, 797–98, 102 S.Ct. 3368, 3376–77 (1982). See

Gabrion, 719 F.3d at 521. The facts those types of evidence show are relevant

mitigating circumstances because they allow a sentencing judge or jury to express

“a reasoned moral response to the defendant’s background, character, and crime”

in deciding whether to impose the ultimate punishment of death. See Penry, 492

U.S. at 319, 109 S.Ct. at 2947 (quotation marks omitted).

      By contrast, the Supreme Court has held that a defendant has no

constitutional right to present evidence of his innocence at sentencing because it

sheds no light on his character, record, or the “manner in which he committed the

crime for which he has been convicted.” Oregon v. Guzek, 546 U.S. 517, 523, 126


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S.Ct. 1226, 1230–31 (2006). For similar reasons, some of our sister circuits have

held that evidence of the impact that a defendant’s execution will have on his

family or friends, as well as evidence about his family’s love for him, is not

mitigating circumstance evidence because it does not reflect on the defendant’s

background or character or the circumstances of the crime. See United States v.

Hager, 721 F.3d 167, 194–97 (4th Cir. 2013); United States v. Snarr, 704 F.3d 368,

401–02 (5th Cir. 2013); Stenson v. Lambert, 504 F.3d 863, 891–92 (9th Cir. 2007);

Coleman v. Saffle, 869 F.2d 1377, 1393 (10th Cir. 1989).

      The fact that Hitchcock would not have received a death sentence if only he

had accepted the plea offer has as little or nothing to do with his character, record,

or the circumstances of the offense, and is as devoid of any moral significance as

the fact that Gabrion would not have faced a death sentence if only he had

murdered the victim in a different location. Just as “mitigation under the Eighth

Amendment is not a matter of geographic coordinates,” Gabrion, 719 F.3d at 522,

neither is it a matter of a particular prosecutor’s willingness to bargain.

      The Supreme Court has never held that a prosecutor’s offer to take the death

penalty off the table in return for a guilty plea is a mitigating circumstance. And

all but one of the courts to have decided the issue have held that failed plea

negotiations and rejected plea offers are not mitigating circumstances because they

have no bearing on a defendant’s character or record or the circumstances of the


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offense. See Owens v. Guida, 549 F.3d 399, 419–20 (6th Cir. 2008) (holding that

evidence of failed plea negotiations is not relevant to mitigation because it has no

bearing on the defendant’s character, record, or the circumstances of his offense);

Bennett v. State, 933 So. 2d 930, 953 (Miss. 2006) (holding that a capital

defendant was not entitled to present evidence of a plea offer for a life sentence

because it was “neither mitigation evidence of his character nor part of the

circumstances of the crime for which [he] was convicted”); Howard v. State, 238

S.W.3d 24, 47 (Ark. 2006) (same); Neal v. Commonwealth, 95 S.W.3d 843, 852–

53 (Ky. 2003) (holding that a plea offer does not constitute relevant mitigating

evidence because it “is not an aspect of the character of the defendant, nor is it a

circumstance of the offense, or a mitigating aspect of the record of the defendant”);

Wisehart v. State, 693 N.E.2d 23, 64 (Ind. 1998) (same); Wiggins v. State, 597

A.2d 1359, 1370 (Md. 1991) (same), reversed on other grounds by Wiggins v.

Smith, 539 U.S. 510, 123 S.Ct. 2527 (2003); Ross v. State, 717 P.2d 117, 122

(Okla. Cr. App. 1986) (holding that a capital defendant had no right to present, as

mitigating circumstance evidence, a negotiated plea agreement that was later

withdrawn). But see Scott v. Schiro, 567 F.3d 573, 584 (9th Cir. 2009) (“The plea

offer’s mitigatory effect is clear: the prosecution thought this was not a clear-cut

death penalty case.”).




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       We agree with the seven courts (we make it eight) on the majority side of

this issue and not with the Ninth Circuit, which is a minority of one. Evidence of a

rejected plea offer for a lesser sentence, like evidence of innocence or evidence of

the geographical location of the crime, is not a mitigating circumstance because it

sheds no light on a defendant’s character, background, or the circumstances of his

crime. Such a plea offer does not by itself show that the prosecutor believed the

defendant did not deserve the death penalty. 1 A plea offer of a non-capital

sentence in a capital case may simply reflect a desire to conserve prosecutorial

resources, to spare the victim’s family from a lengthy and emotionally draining

trial, to spare them the possibility of protracted appeal and post-conviction

proceedings (spanning in this case more than three decades), or to avoid any

possibility, however slight, of an acquittal at trial.



       1
          The concurring opinion cautions against adopting a per se rule that prior plea
negotiations are irrelevant for sentencing purposes for fear of “sending a signal to state courts
that consideration of the evidence is prohibited.” We wholeheartedly agree that we have no
authority to decree what evidence state courts may or may not consider at the sentencing phase
of a capital trial. But, contrary to the concurrence’s suggestion, we neither hold nor imply that
the Constitution forbids states from allowing defendants to introduce evidence of plea offers at
sentencing. We hold only that the Constitution does not require states to do so.

        The concurrence also proclaims that our holding “turns the traditional concepts of
relevance and admissibility on their heads by assuming that if we have not deemed a specific
type of evidence relevant and admissible, it is not.” Our conclusion that the Eighth Amendment
does not mandate the admission and consideration of rejected plea offers as relevant mitigating
circumstances is not based on the fact that neither we nor the Supreme Court has ever deemed
them relevant and admissible. It is based on the fact that rejected plea offers have no bearing on
a defendant’s character, background, or the circumstances of the offense, which means that the
Constitution does not compel their admission at sentencing.
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      Even if one could somehow infer from a plea offer that a particular

prosecutor’s personal views were that the defendant did not deserve a death

sentence as much as other murderers did, or even at all, that personal belief would

not be admissible or relevant evidence. We have held that it is misconduct for a

prosecutor to tell the jury that he personally believes the defendant deserves a

death sentence. See Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir. 1985) (en

banc) (holding it improper to even imply “to the jury that the prosecutor’s office

had already made the careful judgment that this case, above most other murder

cases, warranted the death penalty”), vacated on other grounds, 478 U.S. 1016, 106

S.Ct. 3325 (1986), reinstated, 809 F.2d 700 (11th Cir. 1987) (en banc); Tucker v.

Kemp, 762 F.2d 1496, 1505 (11th Cir. 1985) (en banc) (holding that a prosecutor’s

“statement [to the capital sentencing jury], invoking the expertise of the prosecutor

to suggest the special seriousness of the crime, was improper”); see also Drake v.

Kemp, 762 F.2d 1449, 1459–60 (11th Cir. 1985) (“An attorney's personal opinion

is irrelevant to the task of a sentencing jury.”). By the same token, a single

prosecutor’s personal belief that the defendant may not deserve the death penalty

as much as some other murderers, or at all, should not be put before the jury. It is

just as irrelevant as a prosecutor’s personal opinion running the other way.

      To the extent Hitchcock’s argument is that his rejection of the plea offer is

relevant to the question of whether he is innocent of the crime because it shows


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that he was willing to face death rather than admit guilt, the Supreme Court has

expressly rejected the notion that evidence of a defendant’s innocence, or of

residual doubt about his guilt, is constitutionally relevant at sentencing. See

Guzek, 546 U.S. at 523, 126 S.Ct. at 1230–31; Franklin, 487 U.S. at 174, 108 S.Ct.

at 2327 (plurality opinion).

       For what it is worth, we also note that a constitutional rule requiring the

admission of rejected plea offers as mitigating evidence in capital cases could have

the pernicious effect of discouraging prosecutors from extending plea offers in the

first place, lest those offers come back to haunt them at sentencing. See Wright v.

Bell, 619 F.3d 586, 600 (6th Cir. 2010) (“Allowing a defendant to use plea

negotiations in mitigation would clearly discourage plea negotiations in capital

cases as prosecutors would correctly fear that during the second stage proceedings,

they would be arguing against themselves.”) (quotation omitted). That would be in

no one’s best interest. 2

       For these reasons, we hold that the Constitution does not mandate the

admission of rejected plea offers as relevant mitigating evidence at sentencing. As

a result, whether the issue is reviewed de novo or under AEDPA’s deferential


       2
          We are not, as the concurrence implies, deciding the question of constitutional
relevance based on the potentially adverse consequences of permitting evidence of rejected plea
offers in the penalty phase of a capital trial. Instead, having concluded that rejected plea offers
are not constitutionally relevant under the standards crafted by the Supreme Court, we are simply
noting (as we say “For what it is worth . . .”) that the admission of rejected plea offers could
discourage prosecutors from extending plea offers in the first place.
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standards, Hitchcock is not entitled to federal habeas relief on his Eighth

Amendment claim. This is the same type of dual holding that the Supreme Court

reached in Knowles v. Mirzayance, 556 U.S. 111, 114, 129 S.Ct. 1411, 1415

(2009) (“Whether reviewed under the standard of review set forth in § 2254(d)(1)

or de novo, [the petitioner] failed to establish that his counsel's performance was

ineffective.”). See also Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S.Ct.

2250, 2265 (2010) (“[A] habeas petitioner will not be entitled to a writ of habeas

corpus if his or her claim is rejected on de novo review.”); Reese v. Sec’y, Fla.

Dep’t of Corr., 675 F.3d 1277, 1291 (11th Cir. 2012) (explaining that, even when it

is clear that AEDPA deference applies, we may affirm the denial of federal habeas

relief based solely on de novo review); Allen v. Sec’y, Fla. Dep’t of Corr., 611

F.3d 740, 753 (11th Cir. 2010) (“Alternatively, even if no deference were due the

state collateral trial court’s decision on the performance element, we would

conclude on de novo review that [the petitioner] had failed to establish it.”). These

are our two alternative holdings on this issue. 3



      3
         The concurring opinion insists that our holding on the merits of this issue is dicta insofar
as it goes beyond the question of what the result should be applying AEDPA deference. That
opinion’s theory, with which we disagree, is that because we reach the same result with
deference that we have reached without deference, one of our conclusions should not count, and
the one that should not count is the one the author of the concurring opinion prefers not to count.
But those who disagree with a majority opinion’s alternative holdings do not get to pick the one
that counts. It could be said with as much logical force that if one of our two conclusions on this
issue is dicta, it is the one that deference applies and the result to be reached when deference is
applied. The concurring opinion fails to explain why under its theory of necessity our decision
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                                                 B.

       Hitchcock also contends that his lawyer during his latest resentencing

proceeding was ineffective for failing to elicit testimony from defense expert Dr.

Toomer about the applicability of the two statutory mental health mitigating

factors, and for failing to seek a neuropsychological evaluation and present

evidence of possible brain damage. A petitioner asserting a claim of ineffective

assistance of counsel must demonstrate both deficient performance and prejudice

— that counsel’s performance “fell below an objective standard of reasonableness”

and that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068 (1984).


on the merits without deference does not, instead, make the fallback holding on the result
applying AEDPA deference unnecessary and therefore dicta.
        The concurring opinion is wrong for another reason. It ignores well-established law that
an alternative holding is not dicta but instead is binding precedent. See, e.g., Massachusetts v.
United States, 333 U.S. 611, 623, 68 S.Ct. 747, 754 (1948) (explaining that where a case has
“been decided on either of two independent grounds” and “rested as much upon the one
determination as the other,” the “adjudication is effective for both”); Richmond Screw Anchor
Co. v. United States, 275 U.S. 331, 340, 48 S.Ct. 194, 196 (1928) (“It does not make a reason
given for a conclusion in a case obiter dictum, because it is only one of two reasons for the same
conclusion.”); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S.Ct. 621, 623
(1924) (“[W]here there are two grounds, upon either of which an appellate court may rest its
decision, and it adopts both, the ruling on neither is obiter, but each is the judgment of the court,
and of equal validity with the other.”) (quotation marks omitted); United States v. Bravo, 532
F.3d 1154, 1162 (11th Cir. 2008) (explaining that an “alternative holding counts because in this
circuit additional or alternative holdings are not dicta, but instead are as binding as solitary
holdings”); Johnson v. DeSoto Cnty. Bd. of Comm’rs, 72 F.3d 1556, 1562 (11th Cir.1996)
(“[W]e are bound by alternative holdings.”); McLellan v. Miss. Power & Light Co., 545 F.2d
919, 925 n.21 (5th Cir. 1977) (en banc) (“It has long been settled that all alternative rationales for
a given result have precedential value.”). The concurring opinion flies in the face of all of that
precedent.
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Where, as here, a defendant challenges a death sentence, the prejudice inquiry asks

“whether there is a reasonable probability that, absent the errors, the sentencer —

including an appellate court, to the extent it independently reweighs the evidence

— would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069.

      The Florida Supreme Court held that, even assuming deficient performance

in counsel’s failure to specifically ask Dr. Toomer whether either of the two

statutory mental health mitigators applied, Hitchcock was not prejudiced “in light

of the extensive mitigation that was presented [at resentencing] and the extremely

weighty aggravators proven in this case.” Hitchcock, 991 So. 2d at 356–58. That

conclusion is neither contrary to, nor an unreasonable application of, clearly

established federal law. See 28 U.S.C. § 2254(d)(1). Counsel did have Dr.

Toomer testify at the resentencing hearing that Hitchcock suffered from borderline

personality disorder and that it would have affected him at the time of the crime by

causing him to act impulsively. Based on Dr. Toomer’s testimony, defense

counsel argued in closing that Hitchcock was under the influence of extreme

mental or emotional disturbance at the time of the offense, one of the statutory

mitigating circumstances. The trial court found as non-statutory mitigating

circumstances that Hitchcock was under the influence of lifelong personality

difficulties at the time of the murder and that the murder was the result of an


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unplanned, impulsive act. There were four statutory aggravating circumstances,

and Hitchcock was convicted of raping and murdering his brother’s thirteen-year-

old stepdaughter. Given those facts and circumstances, it was not unreasonable for

the Florida Supreme Court to conclude there is no reasonable probability of a

different result had counsel asked Dr. Toomer to state his ultimate opinion about

whether the two statutory mitigating circumstances fit. We cannot say that no

fairminded jurist could agree with that conclusion. See Holsey, 694 F.3d at 1257.

      As to the second of Hitchcock’s ineffective assistance claims, the Florida

Supreme Court found that he had failed to establish either deficient performance or

prejudice in regard to counsel’s failure to have Hitchcock examined by a

neuropsychologist for indications of brain damage. Hitchcock, 991 So. 2d at 360.

Because the Florida Supreme Court’s finding of no prejudice was not

unreasonable, we need not address the question of deficient performance. See

Windom v. Sec’y, Dep’t of Corr., 578 F.3d 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 ellipsis omitted). We agree with the Florida Supreme

Court, as well as the district court, that Hitchcock’s evidence that he suffered from

brain damage at the time of the murder was speculative at best and significantly


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undermined by the testimony that he was of normal intelligence, did not suffer

from a major mental illness, and during the decades he had been in prison had not

manifested behavior indicative of brain damage. Given the significant aggravating

circumstances involved in his offense and found by the trial court, we cannot say

that no fairminded jurists could agree with the Florida Supreme Court’s

determination that there is no reasonable likelihood of a lesser sentence had

counsel obtained and presented the available evidence of brain damage.

                                              III.

      For these reasons, we affirm the district court’s denial of Hitchcock’s § 2254

petition for a writ of habeas corpus.

      AFFIRMED.




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WILSON, Circuit Judge, concurring in judgment:

      With respect to Hitchcock’s Eighth Amendment claim, I agree that the trial

court did not violate clearly established federal law when it rejected this evidence

as irrelevant to mitigation in these circumstances. However, I write separately to

emphasize that under current Supreme Court precedent, contrary to the Majority’s

implication, such evidence is not per se irrelevant, and the Florida Supreme Court

would not necessarily have erred had it found the evidence relevant under that

precedent. Our holding today should not be taken to suggest that state courts may

forego either a standard state-law relevance analysis or an analysis under Lockett

simply because the evidence relates to plea negotiations. Further, the Majority’s

de novo review of the relevance of the evidence in this case is unnecessary to our

holding.

      Hitchcock’s strongest argument is that the plea negotiations are relevant

mitigation evidence because the fact that an offer was made implies that the

prosecutor did not initially believe Hitchcock deserved to die, from which a jury

could draw a variety of inferences about Hitchcock, the circumstances of his

offense, and whether he deserves a penalty less than death. Hitchcock insists that

the state cannot bar relevant mitigating evidence from being considered during the

penalty phase as a matter of federal law. The Supreme Court has emphasized,

including in precedent from this case, the need to admit relevant mitigating


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evidence into penalty proceedings in capital cases. See Lockett v. Ohio, 438 U.S.

586, 604, 98 S. Ct. 2954, 2964–65 (1978) (holding that the Eighth and Fourteenth

Amendments “require that the sentencer, in all but the rarest kind of capital case,

not be precluded from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death” (emphasis omitted));

Eddings v. Oklahoma, 455 U.S. 104, 113–14, 102 S. Ct. 869, 876–77 (1982)

(finding that the trial judge’s refusal to consider evidence about the defendant’s

troubled childhood, particularly because he committed the crime at age sixteen,

violated the rule articulated in Lockett because a sentencer cannot refuse to

consider relevant mitigating evidence); Dugger, 481 U.S. at 399, 107 S. Ct. at 1824

(holding that failure to consider nonstatutory mitigating circumstances was

reversible error because a sentencer cannot be precluded from considering relevant

mitigating evidence). Indeed, the Supreme Court has demonstrated willingness to

reverse a circuit court for unnecessarily limiting mitigation evidence in a capital

case. See Tennard v. Dretke, 542 U.S. 274, 287, 124 S. Ct. 2562, 2571 (2004)

(finding the Fifth Circuit’s relevance test was too restrictive because “the question

is simply whether the evidence is of such a character that it might serve as a basis

for a sentence less than death” (citation omitted)).




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       The Supreme Court’s emphasis on considering all relevant evidence as a

matter of federal, constitutional law is an additional protection requiring states to

be at least as generous in admitting mitigation evidence relating to a defendant’s

character, the record, and any of the circumstances of the offense as they would be

in admitting mitigation evidence under their own rules. A rule that something is

per se irrelevant—based in part on the fact that we have never deemed it relevant

before—risks sending a signal to state courts that consideration of the evidence is

prohibited.1 We clearly have no authority to make such a prohibition under state

law, and we also lack that authority under federal law, as the rule is unsupported by

Supreme Court precedent. Moreover, it turns the traditional concepts of relevance

and admissibility on their heads by assuming that if we have not deemed a specific

type of evidence relevant and admissible, it is not. The assumption should be that,

as with any piece of evidence, the bar for relevance is low, and in mitigation in a

capital sentence, it is lower still. See Lockett, 438 U.S. at 604, 98 S. Ct. at 2964




       1
           In analyzing Hitchcock’s claim the second time, the Florida Supreme Court concluded
that testimony about the plea offer was irrelevant because it had no bearing on Hitchcock’s
“character or prior record or to the circumstances of the crime.” Hitchcock v. State, 578 So. 2d
685, 690 (Fla. 1990) (per curiam). While we have to assume the Florida Supreme Court found
this irrelevant under Florida law before turning to an analysis of Lockett, we note that the court
cites only the three factors enumerated in Lockett which are designed to provide additional,
federal protection. See Lockett, 438 U.S. at 604, 98 S. Ct. at 2964–65. The fact that the Florida
Supreme Court relied on Lockett demonstrates how dangerous it could be to announce a new rule
holding this category of evidence per se irrelevant because states look to federal law in death
sentencing as a guide.
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(“We are satisfied that this qualitative difference between death and other penalties

calls for a greater degree of reliability when the death sentence is imposed.”).

       Therefore, while prior plea negotiations may not bear directly on a

defendant’s character, criminal record, or the circumstances of his offense, they

may support inferences about one or more of those factors. Indeed, the Ninth

Circuit held, in a capital case, that a “plea offer’s mitigatory effect is clear: the

prosecution thought this was not a clear-cut death penalty case.” Scott v. Schriro,

567 F.3d 573, 584 (9th Cir. 2009) (per curiam) (finding that evidence of a

prosecutor’s plea offer could be introduced during sentencing as mitigation). 2

Further, even if the Majority is correct about the irrelevance of plea negotiations in

this case, such negotiations may be relevant for a host of other reasons that should

be evaluated as they arise. 3 Contrary to the Majority’s assertion, such evidence is


       2
          While the Majority emphasizes that it is “on the majority side of this issue and not with
the Ninth Circuit,” we have not avoided deciding cases contrary to the majority of our sister
circuits that have decided an issue. See, e.g., Powell v. Barrett, 541 F.3d 1298, 1309–10 (11th
Cir. 2008) (en banc) (Carnes, J.) (noting that in evaluating the constitutionality of strip searches,
several other circuits distinguish between whether the defendant is arrested on a felony or a
misdemeanor charge, but concluding that “[t]hose decisions are wrong”). Moreover, while the
Majority would like to create a hard and fast rule that plea negotiation evidence is per se
inadmissible, I am merely unwilling to foreclose the possibility that such evidence could be
relevant in some cases.
       3
          For example, the district court noted the case of Owens v. Guida, 549 F.3d 399, 402,
419 (6th Cir. 2008). In Guida, the prosecutor offered Owens and the hitman she hired to kill her
husband a life sentence in return for a guilty plea. Owens accepted, but the hitman refused, and
thus the two defendants were tried jointly for first degree murder. 549 F.3d at 403. In closing,
the prosecutor argued that Owens deserved the death penalty because she did not acknowledge or
repent her crime. Id. at 430 (Merritt, J., dissenting). The dissent argued strenuously that, in this
case, the plea negotiations were relevant mitigating evidence. Id. at 431(Merritt, J., dissenting).
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not analogous either to evidence that, had a defendant’s crime occurred a few

hundred feet away, he would not have been charged with a capital offense, see

United States v. Gabrion, 719 F.3d 511, 521 (6th Cir. 2013) (en banc), or to

evidence of the impact that a defendant’s execution will have on his family

members or friends, see United States v. Hager, 721 F.3d 167, 194–97 (4th Cir.

2013). The former is merely a jurisdictional fact, and the latter does not relate to

any party involved in the capital proceeding. By contrast, plea negotiations, at the

very least, have the potential to be highly correlated to the nature of the crime or

the defendant.

       Further, the Majority’s concern that allowing evidence of plea bargain offers

at sentencing would discourage plea offers is outside the scope of our analysis.

Given that a negotiated plea bargain saves a state from preparing for and trying a

case entirely, it stretches logic to worry that prosecutors would stop offering plea

bargains because, when such offers are denied, they may be admissible evidence in

a subsequent sentencing. At worst, the evidence will cause the jury to recommend

the very sentence that the prosecutor initially offered. In any event, it is unclear

what authority permits us to factor such policy concerns into our evaluation of

whether a piece of evidence is relevant. 4 As the Majority concedes, it is not



       4
        In Wright v. Bell, cited by the Majority, the Sixth Circuit reaffirmed its holding in
Owens that the United States Constitution does not require the admission of failed plea
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suggesting that the potentially “pernicious effect of discouraging prosecutors from

extending plea offers” can justify excluding otherwise relevant mitigation

evidence. Further, the Majority’s insistence that a prior plea offer could simply

reflect the desire to conserve prosecutorial resources or avoid the possibility of

acquittal does not support its conclusion that such evidence is irrelevant. Instead,

these are merely the points the government would likely offer to rebut a

defendant’s claim that the plea negotiations support an inference that the defendant

deserves a sentence less than death. As with any evidence, the fact that competing

inferences can be drawn does not render the evidence irrelevant.

       Our decision is necessarily limited to whether or not the Florida Supreme

Court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court.” 5 28 U.S.C.

§ 2254(d)(1). We agree that it was not, and that conclusion alone resolves this

case. Accordingly, I disagree with the Majority that this case calls for a “dual

holding” regarding how this evidence would be treated under de novo review, and

to the extent we decide this case on a de novo basis, we are adding dicta.


negotiations as relevant mitigation evidence. 619 F.3d 586, 600 (6th Cir. 2010). It posits that
consideration of the strong policies in favor of plea bargains have motivated such decisions.
       5
          It appears that the first time the Florida Supreme Court was presented with Hitchcock’s
claim, it construed it as a vindictive prosecution claim and concluded that there was no evidence
that the judge imposed the death penalty because Hitchcock did not agree to take a guilty plea.
Hitchcock, 413 So. 2d at 746. The second time it concluded that the testimony about the plea
offer was irrelevant because it had no bearing on Hitchcock’s character or circumstances of the
crime. Hitchcock, 578 So. 2d at 690–91.
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      The Majority suggests that we have the authority to announce a dual

holding—one under the applicable standard of review, and one under a clearly

inapplicable standard of review. As a logical matter, it is of course true that “a

habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is

rejected on de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S.

Ct. 2250, 2265 (2010). This fact makes it more efficient and convenient in some

cases to decide a case under both AEDPA’s deferential standard and a de novo

standard to avoid the potentially more difficult question of which standard of

review is proper. In these cases, a dual holding makes it unnecessary to resolve an

otherwise essential issue in the case. This was the situation in Knowles v.

Mirzayance, where the Court articulated that habeas relief would be denied under

either a de novo or deferential standard of review. 556 U.S. 111, 121 n.2, 129 S.

Ct. 1411, 1418 n.2 (noting that the applicable standard of review was disputed);

see also Berghuis, 560 U.S. at 390, 130 S. Ct. at 2265 (“[W]e need not determine

whether AEDPA’s deferential standard of review . . . applies in this situation.”

(citation omitted)).

      Where a dual holding does not obviate the need to answer an otherwise

essential question to the case, however, the de novo aspect is entirely unnecessary

to the resolution of the case, and is therefore by definition dicta. See Black’s Law

Dictionary (9th ed. 2009) (defining “obiter dictum” as “[a] judicial comment made


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while delivering a judicial opinion, but one that is unnecessary to the decision in

the case and therefore not precedential (although it may be considered

persuasive)”). Here, there is no doubt that AEDPA’s deferential standard of

review resolves this case, so there is no need to resort to speculation about what we

might do under a different standard of review. Hence, the invitation in Berghuis to

“engag[e] in de novo review when it is unclear whether AEDPA deference

applies.” 560 U.S. at 390, 130 S. Ct. at 2265 (emphasis added). Further, the

Supreme Court emphasizes the role of judicial restraint in deciding AEDPA cases.

See, e.g., Tyler v. Cain, 533 U.S. 656, 668, 121 S. Ct. 2478, 2485 (2001) (stating

that the Supreme Court “cannot” decide a question of retroactivity where, in light

of AEDPA’s statutory constraints on habeas review, the decision would not help

the defendant and declining to address the question because any statement would

be “dictum”). 6

       Of course, even where it is clear that AEDPA deference applies, we may add

dicta suggesting how we would decide the case were we to address it de novo. So,

the fact that “we have employed this approach even when it was clear that the

deference afforded by [AEDPA] applied,” Reese v. Sec’y, Fla. Dep’t of Corr., 675



       6
         The Majority claims that calling its alternative holding dicta ignores well-established
law that an alternative holding is binding precedent. But, we have said that “judicial decisions
cannot make law beyond the facts of the cases in which those decisions are announced.” Pretka
v. Kotler City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010) (Carnes, J.) (internal quotation
marks omitted).
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F.3d 1277, 1291 (11th Cir. 2012), should not be surprising. In doing so, however,

we merely speculate on how we might decide future cases; we do not set

precedent. To the extent Reese could be read to suggest that both aspects of a

court’s dual holding set binding precedent, that suggestion is itself dicta. In Reese,

just as in this case, the only necessary holding was that “the Supreme Court of

Florida did not unreasonably apply any clearly established federal rule when it

rejected” the defendant’s claim. Id. at 1287; see also id. at 1293–94 (Martin, J.,

concurring) (“This is not a case where it is unclear whether AEDPA deference

applies. . . . Thus, de novo review is not called for by AEDPA, and it is not

necessary for us to affirm . . . .” (internal quotation marks omitted)).

      Accordingly, the Majority’s elaboration about how it would have treated this

evidence were it to have de novo review is dicta, to which I would add that plea

negotiations may be relevant under clearly established precedent in two ways—

either if state rules deem them relevant or if, in a different situation, such evidence

bears more clearly on a relevant mitigation factor. See, e.g., Guida, 549 F.3d at

403 (Merritt, J., dissenting).




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