             Case: 11-15001     Date Filed: 07/31/2012   Page: 1 of 90

                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                                  ____________

                                   No. 11-15001
                                  _____________

                       D.C. Docket No. 3:08-cv-00316-RH

JOHNNY SHANE KORMONDY,

                                                                 Plaintiff-Appellant,

                                       versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                              Defendant-Appellees.

                                 ______________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                                _____________

                                  (July 31, 2012)

Before TJOFLAT, HULL, and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

      Johnny Shane Kormondy, a Florida death row inmate convicted of murder,

appeals the decision of the United States District Court for the Northern District of
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Florida denying his petition for a writ of habeas corpus. Two state court trial

proceedings were before the District Court when it ruled. The first proceeding

was the guilt phase of Kormondy’s bifurcated trial in July 1994.1 The second

proceeding was the penalty phase of Kormondy’s trial held in May 1999. The

District Court denied the writ with respect to both phases of the trial. After

briefing and oral argument, we affirm the District Court’s decision.2

                                                  I.

       On July 11, 1993, Gary McAdams was murdered in his Pensacola, Florida

residence. Sixteen days later, an Escambia County grand jury indicted three men

for the murder, Johnny Shane Kormondy, Curtis Buffkin, and James Hazen.3 The


       1
          The penalty phase of that trial, which resulted in a death sentence, was not before the
court because the Florida Supreme Court vacated the sentence and remanded the case for retrial
of the penalty phase.
       2
           We affirm the District Court’s adjudication of three constitutional claims. Two were
certified for appeal by the District Court and one by this court. See 28 U.S.C. § 2253(c). The
three claims are discussed in parts IV and V, infra. We do not consider one claim the District
Court certified and one this court certified. The first is a claim that Kormondy’s attorney was
ineffective because he failed to impeach the victim’s wife based on a prior inconsistent
statement. That claim was not presented to the Florida Supreme Court or the District Court. The
second is not a constitutional claim, but a claim seeking a new trial on newly discovered
evidence which purportedly would have shown that Kormondy is “actually innocent” of the death
sentence. See 28 USC § 2254(a) (Federal courts “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.”).
       3
           Count 1 of the indictment charged murder in the first degree in violation of Fla. Stat. §
782.04.

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State sought the death penalty against all three because the murder had occurred

while they were burglarizing the McAdams residence, committing armed robbery,

and committing sexual battery on Cecilia McAdams, the victim’s wife.4

       On arraignment in the Escambia County Circuit Court, before Circuit Judge

John Kuder, the defendants entered pleas of not guilty and stood trial. Buffkin

was tried first. The jury reached a verdict, but before the verdict was published,

Buffkin and the State entered into a plea agreement that called for Buffkin to plead

guilty to first-degree murder, receive a life sentence, and testify for the State in the

cases against Kormondy and Hazen if requested. The Circuit Court approved the

agreement, accepted Buffkin’s plea of guilty to the murder charge, and discharged

the jury. Kormondy’s trial followed Buffkin’s.

       The guilt phase of Kormondy’s trial began on July 5, 1994. Russell Edgar,

an Assistant State Attorney for the First Judicial Circuit of Florida, represented the

State. Antoinette Stitt and Ronald Davis, Assistant Public Defenders for the First

Judicial Circuit, represented Kormondy; Stitt handled the guilt phase and Davis

handled the penalty phase.




       4
          Counts 2, 3, and 4 charged sexual battery in violation of Fla. Stat. § 794.011. Count 5
charged battery during a burglary in violation of Fla. Stat. § 810.02. Count 6 charged robbery
with a firearm in violation of Fla. Stat. § 812.13.

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                                               A.

       The following facts were established in the guilt phase of the trial during the

State’s case in chief.

       On Saturday, July 10, 1993, Johnny Shane Kormondy, Curtis Buffkin, and

James Hazen gathered at Kormondy’s residence in Pensacola, Florida. Buffkin,

who had recently escaped from prison, was staying with Kormondy and his wife,

Valerie. Hazen was in town from Oklahoma.5 The day before, Hazen and

Kormondy had gotten together and had cased a Pensacola subdivision, Thousand

Oaks, looking for a home to burglarize. They failed to spot a promising target, but

nevertheless decided to case the subdivision again, the next day, with Buffkin.

       The three men left the Kormondy residence Saturday evening, July 10, at

about 9:00 p.m., in Kormondy’s Camaro.6 They drove around for three hours

until, shortly after midnight, they arrived at the Thousand Oaks subdivision. They

parked the Camaro there and waited; they were looking for a house that appeared

to be occupied. Shortly after 12:30 a.m., now the morning of July 11, Gary and

Cecilia McAdams pulled into their garage. The McAdamses were returning from

Cecilia’s twenty-year high school reunion at a local country club. They left the

       5
           Hazen’s “foster mother” and Kormondy’s mother, Elaine Barnett, were sisters.
       6
         Before they left, Valerie overheard the men talking. Buffkin said something about
robbing a house on Gulf Beach Highway.

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garage door open (so Gary could take their dog for a short walk), and entered the

house through a door in the garage. At this point, Kormondy and Hazen covered

their faces with masks and their hands with socks while Buffkin, who was armed

with a .44-caliber pistol,7 entered the garage and knocked on the McAdamses’

door. The McAdamses hardly had time to take off their shoes before they heard

Buffkin’s knock. Gary McAdams asked who was there; Buffkin responded, “It’s

me.” Unable to recognize the voice, Gary asked again, only to be met with, “It’s

me.” Assuming that a neighbor was knocking, he opened the door and found

Buffkin standing there with a gun.

      Buffkin forced his way into the house and ordered the McAdamses to kneel

on the kitchen floor with their heads down. Hazen and Kormondy then entered,

and, while Buffkin stood over the McAdamses, they closed the blinds, pulled the

telephone cords out of the wall, and began rummaging through the dresser drawers

and closets in the master bedroom. Hazen found a .38-caliber handgun Gary

McAdams kept in his dresser, and on returning to the kitchen, rubbed the gun

across Cecilia’s McAdams’s hip. Hazen then took Mrs. McAdams, at gunpoint,

into the master bedroom and the adjoining vanity, where he ordered her to undress,

sit on the toilet seat, and perform oral sex. Mrs. McAdams had difficulty


      7
          Buffkin had stolen the pistol during a burglary on the night of July 9, 1993.

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performing. She “kept gagging and thinking [she] was going to throw up, and he

told [her] that if [she] let it come out of [her] mouth one more time, he would

shoot [her].” While this was occurring, Kormondy was standing beside Cecilia’s

bed going through one of her purses. He had long “stringy, mousy brown” hair

that came to his collarbone. Kormondy then entered the vanity and raped Mrs.

McAdams while Hazen continued to force Mrs. McAdams to engage in oral sex.

      When Hazen and Kormondy were finished, they took Cecilia, still naked, to

the kitchen and made her kneel down in front of her husband. They then forced

Mr. McAdams, at gunpoint, to drink a beer from the refrigerator and, as he drank

the beer, Buffkin said to Mrs. McAdams, “I don’t know what the other two did to

you, but I think you’re going to like what I’m going to do.” With his .44-caliber

pistol in hand, he took Cecilia into the bedroom, made her lie down in the vanity

area and began to rape her. Moments later, a loud noise—the sound of

gunfire—suddenly emanated from the front of the house, and Mrs. McAdams

heard someone call for “Bubba” or “Buff.” Buffkin quickly threw a towel over her

face and ran from the bedroom. As he did, he fired a shot from his .44-caliber

pistol. The bullet went through the bedroom carpet and lodged in the floor

beneath.




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       Cecilia McAdams ran to the kitchen. The intruders were gone, and she

found her husband lying on his back and bleeding from the back of his head. She

tried calling 911, but the phone did not work, so she ran out the front door

screaming until the neighbors responded.

       Gary McAdams died on the kitchen floor from a shot fired from his .38

caliber handgun. According to the medical examiner, the gun was pressed firmly

against his skull when the trigger was pulled.8

       Kormondy, Buffkin, and Hazen returned to the Kormondy residence. At

5:00 a.m., Valerie Kormondy awoke, found the three men sitting quietly in the

living room, and went back to bed. At 7:00 a.m., the phone rang, and Valerie

answered it. Kormondy’s mother, Elaine Barnett, was calling. She and Hazen

were supposed to go fishing, and she wanted Valerie to drive Hazen to the place

where they were to meet. Valerie awakened Hazen and drove him there in

Kormondy’s Camaro. After dropping Hazen off, Valerie returned to her residence.

Before exiting the car, she saw a bag of jewelry in the back seat; it contained items

she had not seen before. On entering the house, she observed Kormondy and




       8
        The medical examiner so concluded because there were no powder burns on the scalp;
the power burns were inside the skull.

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Buffkin sleeping. She awakened them and ordered them out of the house. They

left, and she went to her mother’s house.

       Kormondy went to stay with one of Valerie’s cousins, William Long, who

was living alone. Long had been convicted of felony possession of marijuana and

placed on probation. His probation was about to be revoked, however, because he

had failed five drug tests. He was “on the run,” lying low. One night, while at a

Junior Food Store buying gas, he and Kormondy saw a bulletin offering a $50,000

reward for the arrest and conviction of the persons involved in the McAdams

murder. Kormondy remarked that “the only way they would catch the guy that

shot Mr. McAdams was if they were walking right behind us.” A day or so later,

after a night of drinking, Kormondy told Long “how everything took

place”—about forcing their way into the McAdamses’ residence, the sexual

assaults, and “how he shot him in the back of the head.”9 Long told a friend of his,

Chris Robarts, what Kormondy had said, and they decided that Robarts would

contact the police and they would split the reward. Long did not want to get

involved because he might be arrested for violating the conditions of his

probation. He was running the risk of an arrest, though, because Robarts would


       9
         At Kormondy’s trial, Long testified that he smoked fifty dollars worth of crack-cocaine
and drank six pitchers of beer prior to Kormondy’s revelation that night.


                                               8
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have to tell the police where he got his information. Robarts did, and two

homicide investigators from the Escambia County Sheriff’s Office, Allen Cotton

and Wendell Hall, came to see Long and persuaded him to meet Kormondy under

police surveillance.

      Kormondy was working at local cabinet shop, and Long suggested that he

meet Kormondy there. The inspectors agreed, and on Monday afternoon, July 19,

Long entered the cabinet shop wearing a wire; the inspectors filmed the scene

from a van across the street. When Kormondy saw Long, he took him aside. Long

got straight to the point. He told Kormondy that the police had been to see him

about the murder, and he asked Kormondy whether he had told anyone else about

“him killing the dude.” Kormondy said he did not know what Long was talking

about. Long, in response, said that he was leaving town; Kormondy said, “I’m

leaving town, too,” and jumped in a gray Dodge Ram and took off.

      Sheriff’s deputies pursued the Dodge Ram and pulled it over. When the

deputies exited their vehicles, Kormondy sped off. He soon abandoned his vehicle

and continued on foot. A canine unit from the Sheriff’s Office located him in a

shed in a residential backyard.

      Kormondy was the first to be arrested. After he was taken into custody, he

was questioned by officers on two occasions, both on July 19. During the first

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interrogation, which was unrecorded, Kormondy confessed to being present at the

scene of the crime, but denied raping Mrs. McAdams or killing Mr. McAdams.

Kormondy claimed that Buffkin shot Mr. McAdams. During the second

interrogation, which was recorded, Kormondy did not deviate from his previous

statement.

      The State rested its case on July 7, 1994. Following a brief recess, the

Defense rested as well, without putting on any evidence. After deliberating for

four hours, the jury returned its verdict, finding Kormondy guilty as charged. The

trial then moved to the penalty phase, which began the next day, on July 8.

                                         B.

      The penalty phase began with Judge Kuder instructing the jury as to the

proceeding that would take place and the jury’s function now that the defendant

had been found guilty of first-degree murder. The jurors’ role would be to render

an advisory sentence as to the punishment the court should impose, death or life

imprisonment. They were to base their recommendation on the evidence presented

during the guilt phase and the evidence the State and the defendant would be

presenting relative to the nature of the crime and the character of the defendant.

After considering the evidence, they were to determine, first, whether sufficient




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aggravating circumstances10 existed that would justify the imposition of the death

       10
           The following aggravating circumstances may justify the imposition of the death
penalty in Florida:

       (a) The capital felony was committed by a person previously convicted of a felony
       and under sentence of imprisonment or placed on community control or on felony
       probation.
       (b) The defendant was previously convicted of another capital felony or of a
       felony involving the use or threat of violence to the person.
       (c) The defendant knowingly created a great risk of death to many persons.
       (d) The capital felony was committed while the defendant was engaged, or was an
       accomplice, in the commission of, or an attempt to commit, or flight after
       committing or attempting to commit, any: robbery; sexual battery; arson; burglary;
       kidnapping; aircraft piracy; or the unlawful throwing, placing, or discharging of a
       destructive device or bomb.
       (e) The capital felony was committed for the purpose of avoiding or preventing a
       lawful arrest or effecting an escape from custody.
       (f) The capital felony was committed for pecuniary gain.
       (g) The capital felony was committed to disrupt or hinder the lawful exercise of
       any governmental function or the enforcement of laws.
       (h) The capital felony was especially heinous, atrocious, or cruel.
       (i) The capital felony was a homicide and was committed in a cold, calculated,
       and premeditated manner without any pretense of moral or legal justification.
       (j) The victim of the capital felony was a law enforcement officer engaged in the
       performance of his or her official duties.
       (k) The victim of the capital felony was an elected or appointed public official
       engaged in the performance of his or her official duties if the motive for the
       capital felony was related, in whole or in part, to the victim’s official capacity.
       (l) The victim of the capital felony was a person less than 12 years of age.
       (m) The victim of the capital felony was particularly vulnerable due to advanced
       age or disability, or because the defendant stood in a position of familial or
       custodial authority over the victim.
       (n) The capital felony was committed by a criminal gang member . . . .
       (o) The capital felony was committed by a person designated as a sexual predator
       . . . or a person previously designated as a sexual predator who had the sexual
       predator designation removed.
       (p) The capital felony was committed by a person subject to an injunction issued
       pursuant to [Fla. Stat. §] 741.30 or [Fla. Stat. §] 784.046, or a foreign protection
       order accorded full faith and credit pursuant to [Fla. Stat. §] 741.315, and was
       committed against the petitioner who obtained the injunction or protection order
       or any spouse, child, sibling, or parent of the petitioner.


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penalty. If aggravating circumstances were found, they would determine whether

the aggravating circumstances were sufficient to outweigh the mitigating

circumstances,11 if any, the evidence had shown.12


Fla. Stat. § 921.141(5).
       11
          The following mitigating circumstances may counsel against the imposition of the
death penalty in Florida:

       (a) The defendant has no significant history of prior criminal activity.
       (b) The capital felony was committed while the defendant was under the influence
       of extreme mental or emotional disturbance.
       (c) The victim was a participant in the defendant’s conduct or consented to the
       act.
       (d) The defendant was an accomplice in the capital felony committed by another
       person and his or her participation was relatively minor.
       (e) The defendant acted under extreme duress or under the substantial domination
       of another person.
       (f) The capacity of the defendant to appreciate the criminality of his or her
       conduct or to conform his or her conduct to the requirements of law was
       substantially impaired.
       (g) The age of the defendant at the time of the crime.
       (h) The existence of any other factors in the defendant’s background that would
       mitigate against imposition of the death penalty.

Fla. Stat. § 921.141(6).
       12
            Florida Statutes § 921.141(2) provides, in relevant part:

       After hearing all the evidence, the jury shall deliberate and render an advisory
       sentence to the court, based on the following matters:
              (a) Whether sufficient aggravating circumstances exist as enumerated in
              subsection (5);
              (b) Whether sufficient mitigating circumstances exist which outweigh the
              aggravating circumstances found to exist; and
              (c) Based on these considerations, whether the defendant should be
              sentenced to life imprisonment or death.

Fla. Stat. § 91.141(2). Judge Kuder, in instructing the jury both before and at the close of the
penalty phase, informed the jury that it could not recommended a death sentence unless the

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       The State’s case was brief. Russell Edgar, alluding to the court’s

instruction, informed the jury that the State’s case for a death-penalty

recommendation would be based on the evidence presented during the guilt phase

of the trial. With that brief announcement, Edgar rested the State’s case.

       Ronald Davis, on Kormondy’s behalf, told the jury that the Defense’s case

for a life-imprisonment recommendation would consist of the testimony of nine

witnesses. His strategy was to have three of the witnesses—Kormondy’s mother,

Elaine Barnett; half sister, Laura Halfacre Hopkins; and half brother, Willis

Halfacre—provide the jury with a narrative description of Kormondy’s life and the

events that influenced the development of his character and personality and, in

effect, molded the person who entered the McAdams’ residence on July 11, 1993.

A fourth witness, Dr. James D. Larson, a psychologist, drawing on their testimony,

would describe that person in psychological terms.

       Kormondy’s life story actually began with Elaine Barnett’s story about her

life prior to Kormondy’s birth because, according to Dr. Larson, what she had




aggravating circumstances it found outweighed the mitigating circumstances shown by the
evidence. The parties jointly requested the instruction even though it appears to be contrary to
the language of subsection (b) above. See Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011)
(“Time and again, the [Florida Supreme Court] has ‘rejected the argument that the standard
penalty phase jury instructions impermissibly shift the burden to the defense to prove that death
is not the appropriate sentence.’” (quoting Taylor v. State, 937 So 2d 590, 599 (Fla. 2006)).

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experienced prior to that event had a profound effect on the person Kormondy

eventually became. Davis’s questioning of Elaine elicited the following.

      She was born in 1946 in Miami, Florida, into a dysfunctional family. Her

father was a truck driver and an alcoholic who beat his wife and children,

especially on returning from a long road trip. As Elaine got older, her father

sexually abused her. The household was in constant turmoil.

      In 1961, Elaine, as a fifteen-year-old tenth grader, dropped out of high

school and married Bill Halfacre. Halfacre, like Elaine’s father, was an alcoholic

and physically abusive. She had two children with Halfacre: in 1963, a son named

Willis who went by “Bill” and, in 1965, a daughter named Laura. By 1968,

Elaine’s life with Halfacre had become unbearable, so she divorced him and

married Vernon Holderfield, with whom she had become acquainted prior to the

divorce. Holderfield, a house painter, likewise was an alcoholic who frequently

beat her. The abuse accelerated after Elaine became pregnant with their son,

Vernon, and nine months after he was born she left Holderfield to move back in

with Halfacre.

      This time, Elaine and Halfacre stayed together for about a year. Life was

peaceful for a brief spell, but Halfacre soon returned to his old habit of physical

abuse. When she could no longer take it, she left Halfacre and returned to

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Holderfield. Elaine’s second stint with Holderfield lasted less than a year because

he beat her, “[drank,] and [ran] around with women.”

      In 1970, Elaine Barnett, her three children and her younger sister, Sam

Castle, moved to Pensacola, Florida, where Castle had a job waiting. In 1971,

Elaine began living with Johnny Frank Kormondy (“Frank”), a long distance truck

driver. She thought he was single, but he wasn’t—he had a wife from whom he

was separated. For six months, Elaine, leaving her children behind with her sister

Sam, rode with Frank on his long-distance hauls.

      On May 20, 1972, Johnny Shane Kormondy (“Kormondy” or “Shane”) was

born. By that time, Frank had left the scene. When Elaine later sued him for child

support, he denied that Kormondy was his. She soon found herself unable to care

for Kormondy, so, in early 1973, a sister living in Louisiana took him to live with

her. He stayed with the sister for six months, then returned to live with Elaine.

Meanwhile, Elaine found a substitute for Frank: Mike Wright, an insurance

salesman. He loved his whiskey; as she put it, he was a “person that went from

alcohol to religion weekly.” They stayed together for a year; then Wright

disappeared. Shortly thereafter, Elaine married Gary Arant; at age nineteen, he

was eight years her junior. Arant loved alcohol as much as Wright, and, when

drunk, he abused Elaine. The marriage lasted one month and eight days. The day

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Arrant left, he was roaring drunk and tried to beat her in front of her children.

Elaine defended herself by running at him with a butcher knife.

      In the latter part of 1975 or early 1976, Elaine married George Barnett,

another alcoholic whom she had met while she and Arant were still together. By

this time, Shane had been enrolled in a “Head Start” program. He completed that

program in 1976 and, then, in 1977 and 1978, attended pre-kindergarten and

kindergarten. He was known to the school authorities and his classmates as

Johnny Shane Barnett, although George Barnett had not adopted him.

      When Shane finished kindergarten, the Barnetts, having acquired a trailer,

moved to Alabama, taking the four children with them. The family lived on public

assistance and food stamps. George drank every day, and, as Elaine described it,

“went to church 8 days a week.” He went from “the deep side of alcohol to the

deep side of religion.”

      One day in 1983, Laura, then eighteen, announced to her mother and George

that she was getting married. Later the same day, George told Elaine that he was

divorcing her. He stayed until Laura’s wedding, then moved in with his brother,

who lived a mile or so away in the Alabama countryside. According to Laura,

George’s departure had a devastating effect on Shane, then eleven years old. As

Dr. Larson testified, George, “an alcoholic” and a “very inadequate role model,”

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was “the first stabilizing influence in [Kormondy’s] life.” “[T]his surrogate father,

this one person who’s been stable in his life, this alcoholic person leaves very

abruptly.” Shane ran away from home to try to live with him, but Elaine found

him at George’s brother’s place and brought him home. As Laura testified, Shane

“idolized” George and blamed Elaine for his leaving. “[H]e started rebelling

against my mother. My mother couldn’t control him. He’d run away. . . . and go

find George, and George would tell him to go back home.” “He just was

uncontrollable then.”

      In 1984, one of Elaine’s sisters, who was living in Oklahoma, told Elaine

that she could get a job there. Elaine, acting on the sister’s advice, moved to

Oklahoma, taking Vernon and Shane with her. They stayed with the sister for two

months. After Elaine obtained work, they moved into an apartment. Shortly

thereafter, Vernon suffered a cerebral aneurysm, and surgery was performed at a

hospital “[100] miles away.” Elaine stayed there with him; meanwhile, her next

door neighbor took care of Shane.

      Elaine, Vernon, and Shane moved back to Pensacola in 1986, and took up

residence in Sam Castle’s backyard trailer. Shane, now fourteen, attended Ransom

Middle School. Vernon needed further brain surgery; it was performed in

Gainesville, Florida, where Vernon and Elaine stayed for a month. While they

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were in Gainesville, Shane stayed with Aunt Sam. When Elaine and Vernon

returned to Pensacola, she and the two boys moved into an apartment for the

handicapped, as Vernon was bound to a wheelchair. They lived on the “SSI

check[s]” she received as a result of Vernon’s disability.

      By 1988, Shane, now sixteen, was a tenth grader at Tate High School. He

dropped out of school before the year ended. In Elaine’s words, he was “doing

drugs” and “had friends [she] didn’t care for.” And he wound up in juvenile court.

Shane dated Valerie Kay Fletcher while enrolled at Tate. They were married four

years later, in 1992, one week after their son, Devin Shane, was born.

      Elaine’s daughter, Laura Halfacre Hopkins, and son, Willis Halfacre,

augmented Elaine’s testimony, focusing on some of the shortcomings of Elaine’s

parenting. Laura described the “family situation” when Shane was born.

      We stayed alone. My mother worked all the time, worked nights
      bartending. Bill and I pretty much took care of Vernon . . . . He’s
      younger than me. When Shane . . . was born, he went to live with my
      Aunt Sam for a while. [Mother] financially . . . . was having a hard
      time with three kids, so let alone four. . . . [W]e had to watch out for
      [ourselves] . . . . [S]he wasn’t able to afford a babysitter . . . , so we
      stayed in the house . . . when she went to work . . . . [W]e put
      ourselves to bed, and when she’d come home . . . when she got off
      work—she usually worked until closing, about 2:00 or 3:00 in the
      morning.




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Laura said that between marriages, her mother had “several boyfriends,” who

“sometimes . . . [came] to the house.” One, Mike Wright, “lived with us for a

while.”

      Willis Halfacre described his mother as having a bad temper depending on

“what kind of mood she’d be in.” He had seen her “pick up the two smaller

children, Vernon and Shane, and literally just shake them, and they’d fall to the

ground like a rag doll.” He said that he also had a bad temper and that it was “a

result of growing up in this household.” It had affected his family situation, a

reason why he and his wife had separated. He had “been to counseling voluntarily

because [he] had some problems going on in the house with [his] wife and

physical violence had come into play and . . . [he] felt [he] needed to go see

somebody before [he] got too deep.”

      To assess Kormondy’s character and personality, and perhaps find an

explanation for the behavior Kormondy exhibited on the night of July 11 and 12,

1993, Dr. Larson gave Kormondy a battery of psychological and intelligence tests;

reviewed his elementary school records, juvenile records, arrest records, and the

records of his confinement in the Escambia County and Santa Rosa County jails;

read depositions of witnesses in the case; and interviewed family

members—Elaine, Laura and Willis.

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       According to Larson, the psychological tests results revealed no “serious

mental illness,” but they did show “addiction” and “a very serious personality

disorder[:] . . . mixed personality disorder . . . [, also referred to as] a personality

disorder not otherwise specified.” Kormondy had “deficits” in relating to “other

human beings [and] in [his] ability to control . . . impulses”; he was “very

impulsive.” The “two major variables associated with [Kormondy’s] personality

disorder [were his] heredity . . . and environmental experiences,” which included,

more specifically, his negative “role models,” parents’ “rejection,” and “childhood

trauma.”

       Elaine was at the center of these two major variables, heredity and

environmental experience. As Dr. Larson noted, “[h]er father was an alcoholic

truck driver and he would go off on long trips [and when] he’d come back, he

would . . . beat her mother and sometimes beat her and the other kids.” “As she

got older, he began sexually abusing her.” In Dr. Larson’s opinion, Elaine’s

“psychological history was very important in how she conducted parenting” and,

accordingly, in the creation of Kormondy’s environmental experience. She came

from “a very dysfunctional family” and she “gets involved in marriages where

she’s abused [and] there is alcoholism.” “She keeps hooking up with . . . losers.”

“[M]arried twice, divorced, [she] went back to her first husband who had already

                                            20
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been abusive to her [and later] gets involved with a man who’s already married

. . . , Shane’s father.” Kormondy “didn’t know who his father was”; he was “born

without a father into an impoverished situation. His mother, on public assistance,

“sends him [to live] with an aunt,” so “[t]he bond with his mother gets broken at

six months.”

      On cross-examination by Edgar, Dr. Larson agreed that the psychological

testing revealed that Kormondy was “potentially a very violent person[,] . . . a very

bitter, unhappy person who tend[ed] to be abusive of those around him that are

close to him,” and someone who would have “difficulty sympathizing with the

victim.”

      Edgar had Dr. Larson recall some of the specifics of Kormondy’s previous

criminal behavior. At an early age, Kormondy escaped from the DART program.

He started using crack cocaine at age fourteen. He used “a range of substances

. . . . [H]is mother caught him huffing gasoline [and using] alcohol [and]

marijuana.” Soon, he was arrested for juvenile violations, for example, “battery on

other people, thefts, [and] criminal mischief,” which led to “Community Control,”

a form of house arrest. Kormondy violated house arrest by engaging in a “spree of

burglaries and crimes” which resulted in him being “placed in the restitution

center[,] . . . a resident treatment program.” After another crime spree, more

                                         21
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burglaries and thefts, Kormondy was sent to prison. According to his wife and his

mother, “he vowed to go off drugs after he had been incarcerated,” and attended

some “Narcotics Anonymous” meetings without success.

      Kormondy’s criminal activity continued after he was arrested for the

McAdams murder and taken into custody; he was awaiting a charge for

“homosexual rape” at the Santa Rosa County jail. Dr. Larson opined that he

“would expect” that a person with the “kind of personality disorder” Kormondy

possessed would engage in the criminal behavior the prosecutor cited in his

questioning.

      Davis complemented Dr. Larson’s testimony with the testimony of a

pharmacologist, Robert Markowitz, and a physician, Donald G. Morton, M.D.

Markowitz, whose speciality was psychopharmacology, a subspeciality of

pharmacology concerned with drugs that affect behavior, testified in the abstract

as to the character traits inevitably exhibited by a person addicted to drugs,

particularly alcohol and cocaine. The traits he described were the same traits

Kormondy had been exhibiting prior to his arrest for the McAdams murder.

      Dr. Morton, a physician specializing in pathology and diagnostic medicine,

had been devoting, since 1982, his “full medical energies toward treating the

addict and the alcoholic.” The Defense employed him to evaluate Kormondy. He

                                          22
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interviewed Kormondy, who told him that he had been using alcohol and crack

cocaine since he was thirteen. He also interviewed Kormondy’s sister, Laura, and

his brother, Vernon; read depositions taken in the case; and reviewed Kormondy’s

records in the Oklahoma and Escambia County school systems. Dr. Morton’s

diagnosis was that Kormondy “is addicted to cocaine and alcohol [and] that he is

poly-addicted to several other drugs that he’s experimented with in the past.”

Kormondy inherited the “susceptibility to chemical disease” and was suffering

from “antisocial personality disorder.”

      Davis’s last witness was Kevin Timothy Beck, an attorney. Beck had

represented Buffkin at his trial. He said that the State offered Buffkin a life

sentence (after the jury returned a verdict, but before it was published) in exchange

for a plea of guilty to first degree murder because the State was convinced that

Buffkin was not the trigger man and it wanted Buffkin to testify against Hazen at

Hazen’s trial. On cross-examination, and over Davis’s objection, Beck stated that

Buffkin, on deposition, said that “Kormondy told him, while in the jail, that if he

ever got out, he would in fact kill William Long and Cecilia McAdams.”

      The Defense rested following Beck’s testimony. The State put on no

rebuttal. In closing argument, Edgar argued that the guilt phase evidence




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established five aggravating circumstances, that they outweighed the Defense’s

mitigating evidence, and that the jury should recommend a death sentence.

      Davis, in closing, urged the jury to recommend life imprisonment for two

reasons. First, it would be “fundamentally unfair” for Buffkin, who was, in

Davis’s words, the “ring leader,” to receive a life sentence and Kormondy be

sentenced to death. Second, Kormondy was the product of an impoverished

environment. He was born to a mother who lacked parenting skills and a father

who rejected him at birth and later denied paternity, a mother who married

alcoholics, who abused her and her children, and a mother who had a violent

temper. In counsel’s words, “she was a mean woman.” Davis recognized that

      many people overcome poverty, the absence of a parent, the absence
      of love and they grow up; but nevertheless, they grow up in a
      neighborhood where they develop life-long friends outside of the
      family. . . . There are safe places to go. There are normal people to
      be around. . . . They learn how to live properly in the world from
      people outside of the family. Not Shane. He was never in any one
      place long enough to develop those friendships. He was moved
      around like a piece of baggage, . . . ten times by the age of 13. He
      never had this sense of belonging anywhere, no safe place in his
      home, no safe place in the community.

And to make matters worse, he was “born with the disease of addiction.” He

inherited the susceptibility to chemical disease. He was incapable of leaving drugs

and alcohol alone. Davis urged the jury to take all of these things into account.



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They could not justify Kormondy’s behavior, but they could justify a

recommendation of life imprisonment.

      On July 9, 1994, after deliberating for four hours, the jury returned its

verdict. By a vote of eight to four, it recommended that the court sentence

Kormondy to death.

                                         C.

      Judge Kuder scheduled Kormondy’s sentencing for October 7, 1994, and

ordered the State’s Probation and Parole Services to prepare and submit to the

court and the parties a Presentence Investigation Report. The Report, dated

September 16, 1994, contained under the heading “Socioeconomic Status” an

“Alcohol/Substance Abuse” section, which his mother verified. Under the

“Alcohol” subheading, the report recited that Kormondy had “been drinking since

he was a teenager. . . . [and] ha[d] [a]ttended Cordova Counseling for alcohol

treatment.” Under the “Drugs” subheading, the report stated that Kormondy “used

LSD[ and,] when he was a teenager[,] he used cocaine three (3) or four (4) times a

week.” As “Comments,” the report recited: “The defendant stated that during the

night of the crime he had smoked about 4 or 5 crack cocaine rocks, he had been

drinking all day[,] and was high on cocaine and alcohol.”




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        The Report set out Kormondy’s juvenile and adult criminal histories under

the heading “Prior Record (Juvenile/Adult History).” The “Summary” of

Kormondy’s juvenile record indicated that he had been placed in “Juvenile

Probation and After Care” and had “completed the placement” fourteen times.

The “Summary” of Kormondy’s adult record indicated that he had been placed on

“[p]robation” four times and that probation had been “[r]evoked” three times. He

had been sent to “[p]rison” three times and, on one occasion, had “[c]ompleted”

parole.

        Kormondy’s adult record was broken down into a listing of each offense

Kormondy had committed and the ultimate disposition. Several offenses occurred

in 1990, on January 17, February 7, March 19, and May 14; others occurred in

1991, on February 2, March 12, and April 14.13 One occurred after he had been


        13
          The Report listed these offenses by arrest date, arresting authority, offense, and
disposition, as follows:

 Date        Place     Offense           Disposition
 1/17/90     ECSO      Theft, Grand      DKT #90-0603, 5/16/90; pled nolo contendere as
                       Theft Auto,       charged, adjudication of guilt withheld, community
                       Burglary          control for 12 months under CT.’s 1 & 2, each count
                       Structure         concurrent, followed by 2 years probation with special
                       Dwelling, Petit   conditions to make restitution as determined by
                       Theft, VOCC       probation and parole in all counts. Probation 6 months
                                         under CT.’s 3 & 4, each count concurrent and
                                         concurrent with 1 & 2, this case concurrent with DKT
                                         #89-6828 and merged for cost.

                                                26
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2/7/90    ECSO   Trespass          DKT#90-14350, 11/16/90; pled nolo contendere as
                 Structure         charged, adj. Guilty. 6 months probation. COS waived
                 Conveyance        while in restitution center, CJ 30 days suspended upon
                                   condition completed time and restitution center.
2/7/90    ECSO   Theft, Grand      DKT #90-0604, 5/16/90; pled nolo contendere as
                 Theft Auto,       charged, adjudication of guilty W/H, community
                 Battery           control for 12 months under CT. 1 followed by 2 years
                 General,          probation with special conditions to make restitution in
                 VOCC              all counts as determined by probation and parole.
                                   Probation 6 months under CT.’s 2 & 3, each count
                                   concurrent with DKT #98-6228 and merged for cost.
3/19/90   ECSO   Burglary          DKT #89-6828, 5/16/91; pled nolo contendere as
                 Structure         charged, adjudication of guilt w/h placed on
                 Dwelling,         community control for 12 months, each count
                 Grand Theft       concurrent followed by 2 years probation, make
                 $300 <            restitution of $1,211.58 as directed by Supervisor and
                 $20,000           pay $284.50 Cost.
5/14/90   ECSO   Grand Theft       DKT #90-1325: 5/16/90, nol processed CT.’s 6 & 7,
                 Auto, Criminal    pled nolo contendere to CT/ 1, 2, & 3 as charged. Pled
                 Mischief >        nolo contendere to CT. 4 & 5 as charged. Adjudication
                 “$1,00,” Grand    of guilty W/H, community control for 12 moths under
                 Theft Auto,       CT.’s 1, 2, 3 & 5, each count concurrent followed by 2
                 Resisting         years probation and on condition make restitution in all
                 Officer           counts as determined by Probation & Parole . Probation
                 W/Violence,       6 months under CT. 4, concurrent with CT.’s 1, 2, 3 &
                 Burglary          5, this case to run concurrent with DKT #89-6828 and
                 Unoccupied        merged for cost.
                 Structure
                 Conveyance
                 (3) counts
2/12/91   ECSO   Burglary          5/21/91, adjudicated guilty of SP 3 years each count
                 Occupied          concurrent and concurrent with 89-6828 and with
                 Structure         credit for 71 days.
                 Conveyance,
                 Grand Theft             27
                 $300 <
                 $20,000
                 Case: 11-15001         Date Filed: 07/31/2012         Page: 28 of 90

arrested and incarcerated in the Escambia County jail for the McAdams murder:

on February 18, 1994, he was charged with “Possession of [a] Controlled

Substance” and “Possession of Drug Paraphernalia” and was to be tried for the

offense on September 26, 1994. As indicated in note 12, supra, the 1990 and 1991

offenses included “Theft,” “Grand Theft Auto,” “Burglary Structure Dwelling,”

“Burglary Occupied Structure,” “Battery,” and “Resisting Officer [with]

Violence.”

      Kormondy was sentenced on October 7, 1994. After hearing from the

parties and affording Kormondy his right of allocution, Judge Kuder found the

following statutory aggravating factors:14


 3/12/91       ECSO      VOCC               DKT #89-6828, 5/21/91; pled nolo contendere to
                                            VOCC, found guilty of VOCC. Community Control
                                            revoked, adjudicated guilty as charged. SP 3 years each
                                            count concurrent with credit for 133 days.
 11/14/91      ECSO      VOP                DKT #90-14350, 1/9/92; found guilty of VOP,
                                            probation terminated, case terminated.
 2/18/94       ECSO      Possession of      DKT #94-0898: pending, set for jury trial 9/26/94.
                         Controlled
                         Substance,
                         Possession of
                         Drug
                         Paraphernalia,
                         Enter Control
                         Substance Into
                         Jail


      14
            See Fla. Stat. § 921.141(1)(5)(b), (d), (e), (f), and (i), and also supra note 10.

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            Case: 11-15001    Date Filed: 07/31/2012   Page: 29 of 90

      (1) the defendant was previously convicted of a felony involving the
      threat of violence to the person; (2) the capital felony was committed
      while the defendant was engaged or was an accomplice in the
      commission of or an attempt to commit or flight after committing or
      attempting to commit a burglary; (3) the capital felony was committed
      for the purpose of avoiding or preventing a lawful arrest or effecting
      an escape from custody; (4) the capital felony was committed for
      pecuniary gain; and (5) the capital felony was a homicide and was
      committed in a cold, calculated and premeditated manner without any
      pretense of moral or legal justification.

Kormondy v. State (Kormondy I), 703 So. 2d 454, 457 (Fla. 1997) (per curiam).

      Judge Kuder then considered the mitigating evidence in the record, finding

nothing to support any of the statutory mitigating circumstances. He next

considered the non-statutory mitigating factors. The Florida Supreme Court

described what Judge Kuder found and the weight he assigned to Kormondy’s

evidence in mitigation:

      As to nonstatutory mitigation, the trial judge considered Kormondy’s
      childhood deprivations. He found that “the deprivation, trauma, and
      loss of paternal comfort and companionship suffered during
      Kormondy’s early years are reasonably established by the evidence as
      nonstatutory mitigating factors. The Court gives these factors
      moderate weight.” This statement must be tempered by the judge’s
      finding that “[t]he Court is well satisfied that Kormondy is more a
      product of his failure to choose a positive and productive lifestyle
      than a victim of family dysfunction.” Kormondy also asked the trial
      judge to consider his drug addiction as nonstatutory mitigation. The
      judge found that “[a]lthough the fact of Kormondy’s drug addiction is
      established by the evidence, the Court finds that his addiction is not
      reasonably established as a non-statutory mitigating factor and gives
      it no weight.” The trial court also gave no weight to Kormondy’s

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       learning disability and lack of education. Moderate weight was given
       to the fact that Kormondy was a good employee in the past. The trial
       court further gave little weight to the fact that Kormondy was
       drinking alcoholic beverages before the crimes were committed.
       Little weight was also given to the fact that Kormondy was
       well-behaved at trial. No weight was given to either the fact that
       Buffkin received disparate treatment or that Kormondy has a wife and
       child. As to the former consideration, the trial judge found that the
       “evidence establishes beyond and to the exclusion of every
       reasonable doubt that Gary McAdams was in fact killed by defendant
       Kormondy.” Further, no weight was given to Kormondy’s suggestion
       that he cooperated with law enforcement. In denying this suggestion,
       the trial judge wrote, “It is also significant that when he was
       subpoenaed by the State to testify against co-defendant Hazen he
       refused to do so even after having been given use immunity.”
       Finally, the trial judge gave moderate weight to the fact that
       Kormondy has a personality disorder.

Id. at 457–58 (alterations in original). After weighing all of the sentencing factors,

Judge Kuder sentenced Kormondy to death.15

                                              D.

       Kormondy appealed his convictions and death sentence to the Florida

Supreme Court. The Supreme Court affirmed his convictions, but vacated his

death sentence and remanded the case “for a new penalty-phase proceeding before




       15
          As for Kormondy’s “convictions for three counts of armed sexual battery, one count of
burglary of a dwelling with an assault and an intent to commit a theft, and one count of armed
robbery[,] . . . Kormondy was sentenced to a [consecutive] life sentence for each . . .
conviction[].” Kormondy v. State (Kormondy I), 703 So. 2d 454, 463 (Fla. 1997) (per curiam).

                                              30
                Case: 11-15001        Date Filed: 07/31/2012       Page: 31 of 90

a new jury.” Kormondy I, 703 So. 2d at 465.16 The court did so because it found

reversible error in the trial court’s admission, over Kormondy’s objection, of

Beck’s statement that Buffkin, on deposition, said that “Kormondy had told him,

while in jail, that if he ever got out, he would in fact kill William Long and Cecilia

McAdams.” Id. at 461–62, 463. The “testimony that Kormondy said he would

kill again” amounted to an “impermissible nonstatutory aggravation.” Id. at 463.17




       16
           In affirming Kormondy’s murder conviction, the Supreme Court held that the evidence
(in the guilt phase) was insufficient to establish first-degree premeditated murder, see Fla. Stat. §
782.04(1)(a)1, because “the State failed, with its evidence, to exclude the reasonable possibility
that the shooting was accidental.” Kormondy I, 703 So. 2d at 459. The court let the murder
conviction stand, however, because “the record clearly support[ed] a conviction for first-degree
felony murder.” Id. at 460; see also Fla. Stat. § 782.04(1)(a)2. None of the issues Kormondy
raised in challenging his convictions is pertinent here.
       17
            The Supreme Court went on to say that,

       [f]or this evidence to be admissible at the penalty-phase proceeding, it has to be
       directly related to a specific statutory aggravating factor. Otherwise, our turning
       of a blind eye to the flagrant use of nonstatutory aggravation jeopardizes the very
       constitutionality of our death penalty statute. Finally, we are unable to say that
       this evidence about Kormondy’s desire to commit future killings, when presented
       to the jury by an attorney, was harmless beyond a reasonable doubt.

Kormondy I, 703 So. 2d at 463.


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                                         II.

                                         A.

      The Circuit Court received the Kormondy I mandate on January 26, 1998.

Davis, who had represented Kormondy during the penalty phase of the case in

1994, commenced preparation for the retrial of that phase.

      On April 16, 1998, Kormondy moved Judge Kuder to discharge Stitt and

Davis on the ground that the Public Defender’s Office was too busy to give his

case the attention it deserved and to appoint substitute counsel from the private

bar. Alternatively, he wanted Stitt removed because (1) she told him prior to trial

in July 1994, that the jury would likely “find him guilty of murder” and “failed to

keep and maintain his trust” and (2) he was going to file a claim that she had

rendered “ineffective assistance” during the guilt phase of the case in 1994, which

would create a conflict of interest.

      Judge Kuder held a hearing on Kormondy’s motion on May 14, 1998.

Kormondy was present along with Stitt and Davis. After hearing what Kormondy

had to say in support of his motion and the attorneys’ responses, the judge found

no evidence of ineffective assistance or lack of resources in the attorneys’

preparation and presentation of Kormondy’s defense at trial. He denied the

motion because Kormondy presented only bare assertions.

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      On a date not revealed by the record, Judge Kuder scheduled the retrial of

the penalty phase for July 7, 1998. Prior to that date, the trial date was moved to

July 27, 1998. The trial date was later moved to September 22, 1998, and again to

November 16, 1998.18

      On October 28, Kormondy, proceeding pro se, moved Judge Kuder to

recuse, to discharge Stitt and Davis as his attorneys, and to appoint substitute

counsel from the private bar. Stitt prepared the motion for Kormonday after

visiting him in jail the previous Monday, October 26, and Davis presented the

motion to the court on Kormondy’s behalf. Kormondy’s grounds for moving for

Judge Kuder’s recusal were two-fold: (1) Gary McAdams had worked for First

Union Bank as a loan officer, and Judge Kuder had done business with him; and

(2) Judge Kuder’s wife was employed by the State Attorney, whose office was

prosecuting the case. For these reasons, Kormondy felt that, unless Judge Kuder

recused, he could not receive a fair trial.

      Kormondy’s grounds for seeking the discharge of Stitt and Davis and the

entire Public Defender’s Office were: (1) he lacked confidence in the Public

Defender’s Office; and (2) Stitt had been a member of the same high school class

as Gary McAdams, from 1969 to 1972 (their graduation year), and had known


      18
           The record does not indicate the reason(s) for the continuances.

                                                33
               Case: 11-15001       Date Filed: 07/31/2012       Page: 34 of 90

McAdams though class activities and school events during that time. For this sole

reason, she had, in Kormondy’s mind, a conflict of interest.

       Judge Kuder held a hearing on Kormondy’s motions the same day, October

28. Present were Edgar, Stitt, Davis, and Kormondy. Davis presented the

motions; Stitt and Kormondy testified. Stitt testified that at a pretrial conference

long before the case went to trial in July 1994, she informed Judge Kuder and

Edgar that she and Gary McAdams had been high school classmates some twenty

years before, that they had been nothing more than classmates, that she had never

represented him or his family, that she had informed Kormondy of the classmate

relationship, and that Kormondy had not been concerned. The first time

Kormondy told her that the relationship concerned him was when she visited him

at the jail on Monday, October 26, 1998.19 As the result of her conversation with

him at the jail, she concluded that Kormondy no longer felt “trustful” of her or the

Public Defender’s Office, which caused her “great problems going forward with

the representation.” She therefore agreed with Kormondy that she should prepare




       19
          At the May 14, 1998 hearing on his motion for the appointment of substitute counsel to
replace Stitt and Davis, Kormondy did not raise the high school relationship issue as a reason for
providing him with substitute counsel; rather, his complaint was that he had lost confidence in
the Public Defender’s Office.

                                               34
               Case: 11-15001       Date Filed: 07/31/2012        Page: 35 of 90

a motion calling for her and Davis’s discharge and the appointment of a lawyer

from the private sector of the bar.

       At the conclusion of the hearing, Judge Kuder, ruling from the bench,

granted Kormondy’s motion, discharged Stitt and Davis, and appointed Spiro

Kypreos, a private practitioner, to represent Kormondy. Judge Kuder then recused

and was replaced by Circuit Judge Joseph Q. Tarbuck. The trial, which had been

scheduled to begin on November 16, 1998, was rescheduled for April 5, 1999.

       On November 13, 1998, Judge Tarbuck relieved Kypreos of his

appointment (for reasons not in the record) and appointed James Jenkins, a

Pensacola lawyer, in his place. Jenkins was unable to take the appointment, and

Raymond Arnold, also a Pensacola lawyer, was appointed on December 7, 1998.

                                                B.

       On February 15, 1999, Arnold filed with the court a motion to preclude the

State from seeking the death penalty.20 Arnold based the motion on the evidence

presented to the jury during the guilt phase of the trial. He argued that such

evidence was insufficient “to show that Kormondy intended to kill the decedent.

       20
           Also on February 15, 1999, Arnold filed a motion to require the State to designate the
aggravating circumstances on which it was seeking the death penalty and to allow the defendant
to depose every witness the State previously had identified. Within that motion, Arnold
contended that the State should be limited to presentation of “only that guilt phase evidence
necessary to prove aggravating circumstances.” The record does not indicate whether the court
ruled on this motion.

                                                35
               Case: 11-15001       Date Filed: 07/31/2012       Page: 36 of 90

There exists no evidence to show other than that the firing of the gun was

accidental. Accordingly, this case does not meet the culpability requirement of

either Enmund or Tison in a felony-murder case.”21 On March 1, 1999, while that

motion was pending, Arnold moved the court for a change of venue, arguing that a

fair trial could not be obtained in Pensacola due primarily to the publicity the case

had engendered following the McAdams murder. Two weeks later, Arnold filed a

“Notice of Intent Not to Present Evidence of Mitigating Circumstances.” The

notice “announce[d] that [Kormondy would] not present any evidence pertaining

to mitigating circumstances.” He further requested that the State “be precluded

from presenting any evidence pertaining to Defendant’s prior mental, physical, or

psychological condition [or] evidence of any prior criminal history or collateral

conduct or offenses.”

       Judge Tarbuck heard these motions on March 23, 1999. Addressing the

motion to preclude the State from seeking the death penalty, Arnold argued that

the State should be barred from seeking the death penalty because a death sentence

would be disproportional, given that Buffkin and Hazen, who were as culpable as



       21
          In Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) and
Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), the Court considered
the propriety, under the Eighth Amendment’s ban on cruel and unusual punishment, of the death
penalty where the defendant neither took life, attempted to take life, nor intended to take life.

                                               36
             Case: 11-15001     Date Filed: 07/31/2012    Page: 37 of 90

Kormondy, were sentenced to life imprisonment. Judge Tarbuck denied the

motion. Next, he deferred his ruling on Arnold’s motion for change of venue until

trial; he would grant the motion if pretrial publicity precluded the selection of an

unbiased jury. At this point in the hearing, Arnold informed the court that he

could not be ready for trial on April 5 and moved for a continuance. He reminded

the court that to establish the aggravating circumstances necessary to warrant

imposition of a death sentence, the State would be calling most, if not all, of the

witnesses who testified for the State at the guilt phase of the trial, and he would

need to know what they would be saying—especially with respect to manner in

which the killing occurred. And since he did not intend to present any mitigating

evidence, Kormondy’s case would depend on the quality of his cross-examination

of the State’s witnesses.

      Judge Tarbuck granted the requested continuance, set the trial for May 3,

1999, and informed the parties that he would entertain on April 5 any matters that

should be considered prior to jury selection. One matter that would have to be

addressed would be whether Kormondy was willing to waive his right to present

mitigating evidence. Edgar and Arnold agreed that, before the trial commenced,

the court would have to address Kormondy in person and, in accordance with the

Florida Supreme Court’s instructions in Koon v. Dugger, 619 So. 2d 246, 249–50

                                          37
               Case: 11-15001         Date Filed: 07/31/2012        Page: 38 of 90

(Fla. 1993) (per curiam), determine whether he understood that he had the right to

present mitigating evidence, whether he understood the sentence the jury might

recommend if he chose not to exercise that right, and whether he was waiving the

right knowingly and voluntarily.22 Before the hearing ended, Arnold announced

that “[a]t this time, I’ll withdraw the notice of intent not to present evidence of

mitigating circumstances.” He then added that “I may have to refile the [notice],

but . . . have it heard during April.”

       22
           In Koon v. Dugger, Raymond Koon, a death row inmate, appealed the denial of his
post-conviction claim, presented pursuant to Fla. R. Crim. P. 3.850, that his attorney rendered
ineffective assistance of counsel in the penalty phase of his trial because he “failed to investigate
and present significant mental health mitigation that would have resulted in a life
recommendation from the jury.” 619 So. 2d 246, 249 (Fla. 1993) (per curiam). Specifically,
“counsel failed to develop and present evidence of his impoverished childhood, his military
service, his alcoholism, and other nonstatutory mitigation.” Id. The Supreme Court affirmed the
denial of Koon’s claim because it was unrebutted that Koon prohibited counsel from presenting
any mitigating evidence. Id. “Koon instructed him not to do so.” Id. As counsel testified,
“Koon’s position all along was that he did not want to spend the rest of his life in prison.
[Counsel] testified that he was afraid that if he attempted to present witnesses against Koon’s
wishes, Koon would make a scene in front of the jury. Id.
        In affirming the denial of Rule 3.850 relief, the Supreme Court, using its supervisory
power, instructed Florida’s trial courts as to what they should do when faced with a situation in
which a defense attorney foregoes the presentation of mitigating evidence pursuant to the client’s
instructions.

        [W]e establish the following prospective rule to be applied in such a situation.
        When a defendant, against his counsel’s advice, refuses to permit the presentation
        of mitigating evidence in the penalty phase, counsel must inform the court on the
        record of the defendant’s decision. Counsel must indicate whether, based on his
        investigation, he reasonably believes there to be mitigating evidence that could be
        presented and what that evidence would be. The court should then require the
        defendant to confirm on the record that his counsel has discussed these matters
        with him, and despite counsel’s recommendation, he wishes to waive presentation
        of penalty phase evidence.
Id. at 250.

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        On April 6, 1999, Arnold moved the court in limine to enter an order

“prohibiting the State from ‘doubling up’ alleged aggravating circumstances,

either in testimony or argument in the penalty phase of trial.” In the previous

penalty phase, in 1994, the State had argued that the evidence established five of

the aggravating circumstances listed in Fla. Stat. § 921.141(1)(5)(b), (d), (e), (f)

and (i).23 Arnold argued that to allow the State to assert that “the capital felony

was committed during the course of a burglary, . . . to avoid arrest or to allow

escape, and . . . for pecuniary gain . . . [would result] in doubling or tripling of

aggravated circumstances.” Judge Tarbuck heard the motion on April 16, 1999.

At the conclusion of the hearing, he ruled that the applicable aggravating

circumstances would be determined depending on the evidence the State presented

at trial.

                                            C.

        The penalty phase of the trial began on May 3, 1999, as scheduled. Prior to

jury selection and in the absence of the venire, Arnold renewed his motion to

preclude the State from seeking the death penalty. He argued that the Florida

Supreme Court’s decision in Jackson v. State, applying the United States Supreme

Court’s decisions in Enmund v. Florida and Tison v. Arizona, precluded the death


        23
             See supra note 10.

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penalty because the case involved multiple defendants, Kormondy, Buffkin and

Hazen, no eye witnesses, and nothing but circumstantial evidence. See Jackson v.

State, 575 So. 2d 181, 193 (Fla. 1991) (“Enmund and Tison are not satisfied in [a]

murder case with multiple defendants and no eyewitnesses where all evidence is

circumstantial and the actual killer is not clearly identified[.]”). The court was not

persuaded and denied Arnold’s motion.

      Following a brief recess to enable Arnold to confer with his client, the

following took place before Judge Tarbuck:

      MR. ARNOLD: The defendant would announce to the State that he will not
      rely on the mitigator found at [Fla. Stat. § 921.141(6)(a)], that is no
      significant prior criminal activity or history. And I believe that should
      preclude the State from presenting evidence on prior record. Do you agree
      to that?

      MR. EDGAR: It depends on the manner in which the Defense conducts its
      case involving mitigation.

      MR. ARNOLD: Certainly.

      MR. EDGAR: But I will not preempt that by offering evidence initially,
      obviously.

      THE COURT: We will defer ruling on that until such time as the
      presentation of all evidence is concluded.

      MR. ARNOLD: The next one is the defendant would announce to the State .
      . . that it will not rely on the mitigator found at [Fla. Stat. § 921.141(6)(b)],
      which argues that the defendant was under the influence of extreme mental



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or emotional disturbance. We will not argue or present evidence with
regards to that mitigator.

MR. EDGAR: I understand.

MR. ARNOLD: The next is that the defendant will announce that it will not
rely on the mitigator that the victim was a participant or consented to in any
manner the offense or offenses. Next is that the defendant will announce to
the State that it will not rely upon the mitigator indicating that the defendant
had any lack of capacity to conform himself to the law.

MR. EDGAR: I understand.

MR. ARNOLD: Next, the defendant would announce to the State that it will
not rely upon the mitigator dealing with family background, alcoholism or
drug use or mental problems or abuse by parents. Did you get all of those?

MR. EDGAR: I understand.

MR. ARNOLD: Judge, I believe that the Court has to examine the
defendant under [Koon v. Dugger] to make sure that he understands and
acknowledges that I have discussed with him those announcements and that
he agrees with them.

THE COURT: Mr. Kormondy, have you heard what your lawyer just
announced to the Court —

THE DEFENDANT: Yes.

THE COURT: — for the record?

THE DEFENDANT: Yes.

THE COURT: Do you agree that those, with what he has said?

THE DEFENDANT: Yes, sir.



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MR. EDGAR: Could the Court briefly, if I could suggest, that the defendant
be asked that he understands that he had a right to present those matters that
he presented [in the previous penalty phase], and even more if he choose or
less and that those matters could be considered by a jury and might, in fact,
be considered by a jury to outweigh possibly aggravating factors that could
exist and, therefore, could result in jury recommendation of life, but that is a
tactical choice by the defendant or strategic choice that I presume he’s
made. If we could ask, with the advice and representation of counsel, if he’s
fully discussed that matter with counsel and understands the consequences
and effects of that?

MR. ARNOLD: Judge, I would be pleased to ask the defendant those items
and then have the Court examin[e] him with regard to each one, if you
would like for me to do so?

THE COURT: All right.

MR. ARNOLD: Mr. Kormondy, have we discussed the fact that tactically it
would be beneficial to you to announce to the State that you would not
present evidence or testimony or argument dealing with the fact that you
have no prior criminal history because, in fact, you do have a prior criminal
history; is that correct?

THE DEFENDANT: Yes.

MR. ARNOLD: And do you understand that . . . the State, of course, could
come back in and impeach us or impeach you if you so testified that you had
no prior criminal history? We’ve discussed that?

THE DEFENDANT: Yes.

MR. ARNOLD: And you agree to the waiver of that particular mitigator?

THE DEFENDANT: Right. Yes.

MR. ARNOLD: The next matter is that during the guilt phase trial, there
was testimony taken by the lawyers who represented you . . . dealing with

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the fact that you may have previously been under some sort of extreme
mental or emotional disturbance or that you may have been, if not addicted
to, at least abusing crack cocaine and other drugs or alcohol and, in fact,
there was testimony by a psychologist or psychiatrist with regards to those
matters; and do you understand that those avenues of defense are available
to you at this time?

THE DEFENDANT: Yeah.

MR. ARNOLD: And have we discussed those matters, and are you satisfied
that it is not in your best interest to present those particular types of
aggravators or mitigators in this case?

THE DEFENDANT: Yes.

MR. ARNOLD: The same thing goes with the mitigator that I announced to
the Court and to the State dealing with your lack of capacity to conform to
the laws of our state or to the laws of the United States. Do you understand
that you have the right to present testimony that you simply don’t have the
ability to follow the law, and because of some other pressing problem,
mentally or emotionally or whatever, do you understand that?

THE DEFENDANT: Yes.

MR. ARNOLD: And we have discussed those and you have agreed to waive
those as mitigators?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: And there was some testimony previously, and you have
the availability of that testimony now to present testimony that you either
had mental problems associated with your childhood upbringing or that you
were either abused, and that doesn’t mean that you were—necessarily that
you were beaten, it could mean that your were either beaten or sexually or
mentally or any other way abused by parents or a figurehead or persons of
authority over you. Do you understand that you still have that avenue of
defense available to you at this time?

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THE DEFENDANT: Yes.

MR. ARNOLD: And we have discussed that avenue of defense and all of
those various matters?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: And are you satisfied that it is in your best interest
not to present testimony, evidence or argument pertaining to those
mitigators?

THE DEFENDANT: Yes.

MR. ARNOLD: There was another mitigator that I mentioned and it had to
do with whether or not the victim in this particular case, . . . Gary
McAdams, in any way participated or consented to the offense and, of
course, you’re not claiming that in any way . . . , are you?

THE DEFENDANT: No.

MR. ARNOLD: And you would waive that mitigator?

THE DEFENDANT: Yes.

MR. ARNOLD: Judge, I believe I’ve covered those mitigators. Are you
satisfied, Mr. Edgar?

MR. EDGAR: Yes, Your honor. I just wanted to make sure that they
discussed it to the defendant’s satisfaction. I know Mr. Arnold is an
experienced attorney and he’s fully capable of advising his clients. I just
wanted to make sure that the defendant understood and that he had that
opportunity and what effect that would have by not doing that, what effect it
might possibly have, it could make a difference in this matter and that he
should be aware of that for his own reasons and advice of counsel, he’s
choosing not to do that.



                                  44
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      THE COURT: Mr. Kormondy, you heard your lawyer announce to the
      Court the various mitigators that you’re waiving; have you discussed each
      of those at length with him and arrived at the conclusion that it would not be
      in your best interest to present those?

      THE DEFENDANT: Yes, sir.

      THE COURT: You’re satisfied that your lawyer has adequately represented
      you and represented things to you in regard to those mitigators so that you
      could make an intelligent decision with regard to not wanting the
      introduction of those into evidence?

      THE DEFENDANT: Yes, sir.

      THE COURT: Anything else?

      MR. ARNOLD: Those conclude mine.

      THE COURT: All right. We should have the cards momentarily and begin
      the jury selection process.

      A jury was empaneled by mid-day on May 3, 1999, and excused until the

following morning. The trial began that morning with the attorneys’ opening

statements. Edgar informed the jury that an earlier jury had found Kormondy

guilty of the first degree murder of Gary McAdams, the sexual battery of Cecilia

McAdams, burglary, and armed robbery, and then outlined the evidence that led to

the jury’s verdicts—beginning with the assemblage of Kormondy, Buffkin, and

Hazen at Kormondy’s Pensacola residence on July 10, 1993, and ending with the

statements Kormondy gave the police following his arrest. That evidence, Edgar



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submitted, would establish the aggravating circumstances necessary for the

imposition of the death penalty and would be sufficient to overcome any

mitigating evidence the defense might put forth.

      Arnold, in his opening statement, said there would be “testimony that it was

not Kormondy who actually killed Mr. McAdams” and that the jury would hear

“different testimony as to how he was killed and by whom.” The mitigating

circumstances that would weigh against a jury recommendation of death and in

favor of life imprisonment would be that there was “no intent to kill” Mr.

McAdams; that Buffkin and Hazen, who were equally culpable, had received life

sentences; and that without Kormondy’s cooperation with law enforcement,

Buffkin and Hazen would not have been captured.

      The State called twenty witnesses; their testimony and the State’s exhibits

established the facts that led to Kormondy’s conviction at the conclusion of the

guilt phase of the trial in July 1994. After the last witness stepped down, Edgar

announced that the State and the Defense, with Kormondy’s consent, had

stipulated to the crimes of which Kormondy, Buffkin, and Hazen had been

convicted, and that these “violent felonies” constituted “an aggravating factor.”

With that stipulation, Edgar rested the State’s case.




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     The court then asked Arnold to call his first witness. After conferring with

Kormondy, the following exchange occurred:

     MR. ARNOLD: Judge, at this time the Defense likewise rests, and I
     think that you need to inquire of the defendant out of the presence of
     the jury.

     THE COURT: Is there anything further that you wish to present in this case,
     Mr. Kormondy?

     THE DEFENDANT: No, Sir.

     THE COURT: Have you discussed all aspects of the presentation of
     evidence in your behalf with your lawyer?

     THE DEFENDANT: Yes, sir.

     MR. EDGAR: I have some matters to inquire into. I’d request that the jury
     be excused briefly.

     THE COURT: Ladies and gentlemen of the jury, please retire.

           (Jury out.)

     MR. EDGAR: Your Honor, previously [during the penalty phase of the trial
     in 1994] the defendant introduced evidence and submitted arguments to the
     jury that recommended death and to the Court that sentenced him,
     concerning his background, his family background, his substance abuse,
     some mental/emotional disturbances, his childhood deprivations and other
     matters. That did not have apparently as much effect at that time as I guess
     as it was intended. However, given that there are less aggravators being
     submitted by the State at this time as a result of the [Kormondy I] opinion, I
     wanted just the Court to advise him that if it didn’t work before, it doesn’t
     mean that it won’t work now. And that he’s to be advised that he could still
     do that, that he’s free to do that, and if this is what he wants to do.



                                       47
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Otherwise, that he’s discussed that with counsel, he’s satisfied and knows
the consequences and he nonetheless wishes to proceed on this course.
       In other words, I just want to make sure the record is clear that
he knowingly and voluntarily and intelligently makes this election so
that later if this doesn’t go the way that he would prefer, then we
wouldn’t be back here arguing that well, I wasn’t told exactly what
the situation was. That’s what I wanted to tell the Court just to
address in a little more detail.

MR. ARNOLD: Judge, I’d be pleased to examine him, if you’d like for me
to. Then you may help —

THE COURT: All right.

MR. ARNOLD: Mr. Kormondy, have I discussed with you the statutory
mitigating circumstance, that the defendant has no significant history of a
prior criminal activity and we have previously announced that we would not
deal with that and the State likewise agreed they would not deal with it?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: Did we do that as a part of the strategy proceeding in this
case?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: With regards to the second statutory mitigating
circumstances, the capital felony was committed while the defendant was
under the influence of extreme mental or emotional disturbance. Did I
discuss with you any – not only medically diagnosed problems, but any
problems you may have thought about dealing with mental or emotional
disturbance, and did we rule out any evidence or argument pertaining to
whether or not you were under the influence of extreme mental or emotional
disturbance?

THE DEFENDANT: Yes, sir.



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MR. ARNOLD: And did we agree that as part of our strategy that it may be
in your best interest not to present that testimony so that we did not open the
door for the State to put evidence in on some other matters?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: With regards to the statutory mitigator that the victim was a
participant in the defendant’s conduct or consented to the act, we have
agreed that that was not true and that we would not use it as a statutory
mitigator; is that correct?

THE DEFENDANT: Right.

MR. ARNOLD: With regards to the mitigator that the defendant was an
accomplice in the capital felony committed by another person and his
participation was relatively minor, we are going to argue that. May not
request it as a jury instruction, but I may argue that if the evidence – if I
believe that the evidence is present?

THE DEFENDANT: Right.

MR. ARNOLD: Agree?

THE DEFENDANT: Right.

MR. ARNOLD: With regards to the next statutory mitigator, the defendant
acted under the extreme influence, dominion, duress, or control of another.
Have we discussed that and agreed that that is not the case and that we
would not present any argument or evidence pertaining to that mitigator?

THE DEFENDANT: Right.

MR. ARNOLD: Okay. With regards to the next mitigator, the capacity of
the defendant to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law was substantially impaired. Again, in
conjunction with the emotional disturbance and that sort of thing, have we
discussed that in detail and agreed that we would not present any evidence

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or attempt to put any evidence or argument pertaining to that mitigator into
the record?

THE DEFENDANT: Yes.

MR. ARNOLD: And that likewise is in your best interest not to do so?

THE DEFENDANT: Right

MR. ARNOLD: The age of the defendant at the time of the crime. If it’s
requested, the Judge always usually puts that into the jury instructions,
although we’ve not really brought that up as an issue; is that correct?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: There are a number of nonstatutory mitigators, and under
no pretense do I attempt to tell you each and every one of them, okay?

THE DEFENDANT: Okay.

MR. ARNOLD: Because they can be most anything that someone can think
of. Let me cover a few, if I may. With regards to family background or
employment background or military service, we’ve not presented any
evidence on those matters, correct?

THE DEFENDANT: Correct.

MR. ARNOLD: Do you desire to put in any evidence or argument
pertaining to any of those three items?

THE DEFENDANT: No.

MR. ARNOLD: Okay. With regards to mental problems, which do not reach
the level of extreme mental anguish or mental emotional defect, do you wish
to present any testimony, argument or evidence pertaining to mental
problems of any nature whatever?



                                  50
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THE DEFENDANT: No.

MR. ARNOLD: And we’ve discussed that fully and completely?

THE DEFENDANT: Right.

MR. ARNOLD: With regards to abuse of the defendant by parents, either
physically, mentally, or sexually, we have agreed that there would be no
testimony, evidence or argument pertaining to that nonstatutory mitigator; is
that correct?

THE DEFENDANT: Yes, sir.

MR. ARNOLD: And we’ve discussed that in detail?

THE DEFENDANT: Right.

MR. ARNOLD: I believe that previously there was some testimony dealing
with that and you discussed that with me and asked me not to present any
evidence to the court, did you not?

THE DEFENDANT: Right.

MR. ARNOLD: Okay. With regards to contribution to the community or
society or charitable or humanitarian acts or deeds, we have no evidence
pertaining to those, correct?

THE DEFENDANT: Correct.

MR. ARNOLD: With regards to the quality of being a caring parent, I
understand that you have a child but we’ve not presented any evidence
dealing with that, correct?

THE DEFENDANT: Correct.

MR. ARNOLD: And it’s not your desire to present any evidence dealing
with those items?

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      THE DEFENDANT: (Shakes head negatively.)

      MR. ARNOLD: The same thing goes with regular church attendance or
      religious devotion, such as that?

      THE DEFENDANT: Correct.

      MR. ARNOLD: We’ve talked about it, discussed it, you’ve agreed not to
      present it?
             I have discussed with the State Attorney and we will present to
      the Judge shortly jury instructions which include the nonstatutory
      mitigators. One, being that you cooperated fully with law
      enforcement after your arrest; another being the two co-defendants
      are serving life in prison; another being you had no intent that Gary
      McAdams die as a result of these crimes that we talked about; and
      fourth, I’m asking the Court to present and be that you exhibited good
      behavior and good conduct during the course of this trial.
             Are there any other nonstatutory mitigators that you think I
      should present to the Court?

      THE DEFENDANT: (Shakes head negatively)

      MR. ARNOLD: Judge, I think that I’ve covered the mitigators. I hope I
      have. Does that satisfy you?

      MR. EDGAR: Yes, sir, Your Honor. And I have jury instructions that
      conforms to that. Does Your Honor desire to inquire of the defendant any[
      ]more?

      THE COURT: I do not. I think it’s been adequately covered. What I
      propose is to bring the jury in now and tell them what stage of the trial
      we’re at. . . .

      After informing the jury that there would be no further testimony, the court

declared a lunch recess. Closing arguments began at 1:00 p.m. Edgar reviewed in



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detail the testimony he had presented the previous two days and argued that it

established two aggravating circumstances: (1) Kormondy had been convicted

previously of “a felony involving the use of threat or violence, namely, the robbery

of Mr. and Mrs. McAdams or the sexual battery of Mrs. McAdams”; and (2) Mr.

McAdams’s murder was “committed while [Kormondy] was engaged in or an

accomplice in the commission of an attempt to commit a crime of burglary.”24

Given those aggravating circumstanecs, he urged the jury to return a verdict

recommending a death sentence.

      Arnold, in response, argued that several mitigating circumstances were

present which the aggravating circumstances did not outweigh: Kormondy’s

sentence should be the same as Buffkin’s and Hazen’s, life imprisonment;

Kormondy cooperated with investigators Cotton and Hall following his arrest, as

both had testified; his cooperation led to the Buffkin’s and Hazen’s arrests; the

gun fired accidentally, indicating that there was no intent to kill; and there was

some doubt as to whether Kormondy pulled the trigger.

      The jury returned its verdict in little over one hour. It recommended, by a

vote of eight to four, that the court impose the death sentence.




      24
           Kormondy v. State (Kormondy II), 845 So. 2d 41, 48 (Fla. 2003) (per curiam).

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             Case: 11-15001    Date Filed: 07/31/2012    Page: 54 of 90

                                         D.

      Judge Tarbuck scheduled sentencing for July 7, 1999. On May 7, Arnold

provided Judge Tarbuck with a Sentencing Memorandum in which he argued

against the imposition of the death penalty based on the same mitigating

circumstances he proposed to the jury and an additional circumstance: Kormondy

had exhibited good behavior and good conduct during the trial. Arnold also

attached transcripts of testimony Hazen and Buffkin gave at Hazen’s trial,

testimony the jury did not hear. Hazen, testifying in his own defense, said that

Buffkin admitted killing Mr. McAdams: “‘He stops by the front and he says well,

if I didn’t do it like that, I was going to have to shoot him anyhow.’” Buffkin, a

prosecution witness, testified that Kormondy did the shooting, that Kormondy was

tapping the victim’s head with the gun and it went off, accidentally. Buffkin

couldn’t have seen that because, as Mrs. McAdams testified, Buffkin was raping

her in the master bedroom vanity when the shot was fired. Arnold closed his

memorandum with this statement:

      The evidence in the instant case is such that nobody can say with any
      certainty exactly who actually killed Gary McAdams. . . . [A]lthough
      a felony-murder, nobody can establish that the shooting was not
      accidental. . . . If Kormondy is sentenced to death, while his two
      equally culpable co-defendants are sentenced to life, such is
      disproportional.



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       Judge Tarbuck sentenced Kormondy to death at the conclusion of the July 7,

1999, proceeding. He found the two aggravating circumstances the State had

argued to the jury, considered the mitigating circumstances Arnold had advanced,

and concluded that the aggravators outweighed the mitigators.

                                                E.

       The Florida Supreme Court affirmed Kormondy’s death sentence.

Kormondy v. State (Kormondy II), 845 So. 2d 41 (Fla. 2003) (per curiam), cert.

denied, 540 U.S. 950, 124 S. Ct. 392, 157 L. Ed. 2d 283 (2003).25 In doing so, the

court disposed of on a state law ground one of the claims of error we address

today: that “Kormondy was denied his right to cross-examine and confront state

witness Cecilia McAdams concerning her ability to identify and distinguish the

perpetrators” in violation of the rights secured by the Sixth Amendment’s

Confrontation Clause.26 Id. at 47.




       25
         Kormondy was represented on appeal by the Public Defender and an Assistant Public
Defender for the Second Judicial Circuit of Florida.
       26
          The Sixth Amendment states, in relevant part: “In all criminal prosecutions, the
accused shall have the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. This is known as the Confrontation Clause and is made applicable to the States
through the Fourteenth Amendment’s Due Process Clause. Pointer v. State, 380 U.S. 400,
403–06, 85 S. Ct. 1065, 1068–69, 13 L. Ed. 2d 923 (1965).

                                                55
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                                            III.

      On August 30, 2004, Kormondy moved the Escambia County Circuit Court,

pursuant to Florida Rule of Criminal Procedure Rule 3.851, to vacate his

convictions and death sentence. His motion asserted, in the trial court’s words,

“multiple and cumulative instances of ineffective assistance of counsel on the

parts of his original and his resentencing attorneys,” each a denial of the right to

effective representation guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution. The motion was referred to Judge Tarbuck. After

Kormondy amended the motion on April 5, 2005, Judge Tarbuck held an

evidentiary hearing on the claims, on April 18 and 19, 2005, and assessed them in

accordance with the standards prescribed by Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On June 20, 2005, he entered an

order denying Rule 3.851 relief. Two of the ineffective assistance claims are

before the court in this appeal.

                                            A.

      The first claim alleged that Antionette Stitt, who represented Kormondy

throughout the guilt phase of the case in 1993 and 1994, rendered ineffective of

counsel when she “failed to . . . withdraw from representing Defendant prior to the

guilt phase trial.” According to Kormondy, Stitt should have moved the court to

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withdraw because she was laboring under a conflict of interest: twenty years

before Stitt undertook his representation, in 1993, she and Gary McAdams were

high school classmates. This conflict, Kormondy said, rendered invalid of all of

the convictions the 1994 trial produced.

      Judge Tarbuck denied this claim after hearing testimony from Stitt and

Kormondy. Stitt testified that after Judge Kuder appointed her to take on

Kormondy’s defense, she notified Judge Kuder, the State, and Kormondy that she

had gone to high school with Mr. McAdams but did not have a close friendship

with him. She described the relationship as being that of “nodding

acquaintances”; they may have both been present at school social functions, but

that they did not socialize with one another. Judge Tarbuck found Stitt’s

testimony “credible” and that Kormondy “failed to meet his burden of

demonstrating . . . that trial counsel actively represented conflicting interests.”

      The judge found, moreover, that Stitt informed Kormondy of her

relationship with the victim and that Kormondy’s response was that “if it didn’t

bother her, then it didn’t bother him.”27 He made this finding notwithstanding

      27
           At the evidentiary hearing, Stitt stated:

      He did not think it was a conflict nor did I. . . . He had not seen fit to ask me to
      remove myself from the case. Giving him all the conflicts, . . . such as the Long
      matter, the prior contact of mine with Gary McAdams, and by that time I was full-
      bored [sic] into the case, that is what I had been appointed by the court to do, and

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Kormody’s denial that in preparing the case for trial, Stitt had informed him of her

relationship with the victim.28 Judge Tarbuck found his denial “not credible.”

                                                B.

       The second claim Judge Tarbuck denied was Komondy’s claim that Ronald

Arnold denied Kormondy his right to effective assistance of counsel during the

penalty phase of the case (after the Florida Supreme Court remanded the case in

Kormondy I). Arnold allegedly did this in two ways. The first involved

Kormondy’s decision not to present mitigating evidence to the jury. Kormondy

alleged

       that his waiver of presentation of mitigation before the jury was at the
       recommendation of his Defense Counsel [and] that Defense Counsel
       could not advise the Defendant to make an intelligent and knowing
       waiver not to present mitigation before the jury since Defense
       Counsel had not: (1) investigated the Defendant’s background, (2)


       by God I was going to do a good job.
       28
           As support for his position that Stitt did not inform him of her relationship with the
victim and that if she had done so, he would not have approved of her handling the case,
Kormondy referred to letters he sent defense counsel and Judge Kuder, in which he sought the
removal of the Assistant Public Defenders and the substitution of court-appointed attorneys from
the private sector. The Circuit Court found that Kormondy’s requests for substitute counsel did
not relate to the potential conflict Stitt had disclosed.

       Defendant’s letter to trial counsel and Defendant’s letter to the trial judge indicate
       that Defendant requested the Public Defender’s Office be removed from his case
       because he wanted . . . counsel, like his codefendants’. Defendant testified to this
       fact at evidentiary hearing as well. Defendant has failed to submit any evidence
       which would convince the Court that he disapproved of his representation because
       of the[ ] potential conflict[ ].

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       read the entire file, (3) contacted or hired any experts, as no
       evaluations were performed, (4) contacted the Defendant’s family or
       friends, (5) consulted with the Public Defender [Davis] regarding
       previous mitigation, nor (6) obtained any medical or school records of
       the Defendant.
       ....
              [H]ad Defense Counsel fully investigated and informed the
       Defendant of all potential mitigation, the Defendant would not have
       waived presentation to the jury.

       The second way involved Arnold’s performance post-verdict. Kormondy

alleged that Arnold was ineffective in “failing to present record mitigation to the

Court in his [Sentencing] Memorandum at the Spencer hearing [before the

Court].”29

              On June 30, 1999, a Spencer hearing was conducted . . . . At
       that hearing Defense Counsel was provided an opportunity to present
       mitigation, but failed to do so. In addition, Defense Counsel failed to
       provide to the Court record mitigation that had already been
       presented at the first penalty phase trial. Defendant’s waiver to
       present mitigation to the jury does not constitute a waiver to present
       mitigation to the Court. Regardless of the waiver, the Court was
       obligated to consider all record evidence. Defense Counsel should
       have been aware of the requirement.


       29
         A Spencer hearing occurs after the jury has recommended a sentence but before the
judge imposes a sentence. Under Spencer v. State, the purpose of a Spencer hearing is to:

       a) give the defendant, his counsel, and the State, an opportunity to be heard; b)
       afford, if appropriate, both the State and the defendant an opportunity to present
       additional evidence; c) allow both sides to comment on or rebut information in
       any presentence or medical report; and d) afford the defendant an opportunity to
       be heard in person.

615 So. 2d 688, 691 (Fla. 1993) (per curiam).

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      After considering the allegation that Arnold’s investigation of mitigating

evidence was constitutionally deficient and the testimony of Arnold, Kormondy,

and Davis (who represented Kormondy in the penalty phase in 1994 until his

discharge on Kormondy’s motion on October 28, 1998), Judge Tarbuck said this:

      Raymond Arnold . . . was appointed to represent Defendant in his
      second penalty phase trial. Several types of mitigation evidence were
      presented at the first penalty phase trial. Attorney Arnold reviewed
      the mitigation evidence previously presented. Arnold testified that
      Defendant informed him he did not want the mitigation used in the
      first penalty phase presented in the second penalty phase trial.
             Arnold testified at the evidentiary hearing that he investigated
      possible mitigation evidence by speaking with Defendant, speaking
      with Defendant’s mother on a number of occasions, speaking with an
      expert, and speaking with previous penalty phase counsel [Davis]
      about possible mitigation. Arnold further testified that Defendant
      told him he did not want any witnesses to be called to testify in
      mitigation and that he did not want mitigation about his previous drug
      and alcohol use presented.
             Contrary to Defendant’s allegation, testimony was presented at
      the evidentiary hearing that [Arnold] actually discouraged Defendant
      from waiving all mitigation. Attorney Arnold testified that he
      encouraged Defendant to present mitigation evidence during the
      penalty phase. . . . [Arnold] even had his own daughter, who assisted
      [him] with investigating mitigation, speak to Defendant about
      presenting mitigating evidence. In the end, [Arnold] testified that
      there was ‘so much bad’ evidence that would have come in if
      Defendant had presented mitigation, that Defendant and [Arnold]
      agreed that it was good strategy not to present mitigation evidence.
      The Court finds that [Arnold] properly investigated possible
      mitigation before agreeing with Defendant that he should waive
      mitigation.

Based on these findings, Judge Tarbuck found Kormondy’s waiver valid.

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      Turning to Arnold’s allegedly deficient performance post-verdict, Judge

Tarbuck found that Arnold’s Sentencing Memorandum and the attached

transcripts of Hazen’s and Buffkin’s testimony covered all the arguments Arnold

had made in favor of sentence mitigation and in pursuit of “counsel’s primary

strategy that [Kormondy] was not the one who shot Mr. McAdams, to minimize

[Kormondy’s] direct involvement, and to argue a death sentence . . . would be

disproportionate to the sentences received by [Kormondy’s] co-defendants.”

Turning to Kormondy’s argument that Arnold should have presented the record of

mitigation evidence presented to the jury in the penalty phase of the 1994 trial,

Judge Tarbuck said this:

             Testimony at the evidentiary hearing was adduced that if
      [Arnold] had presented [that record] to the Court in his sentencing
      memorandum or at the Spencer hearing, that the cross-examination
      portion from the defenses witnesses would have also been before the
      Court for consideration. At the evidentiary hearing it was revealed
      that this cross-examination testimony of defense witnesses would
      have included statements that Defendant was malingering or rather
      ‘faking’ any mental disturbance, that Defendant was accused of
      forcibly sodomizing and raping a man in the Santa Rosa County Jail,
      Defendant was a habitual user of crack cocaine, and committed
      crimes to get the drug over a period of time, Defendant had a lengthy
      criminal history that spanned many years, and that although
      Defendant was a product of a bad home life, Defendant’s siblings
      (who grew up in the same environment) were upright citizens in the
      community. This information was thought by [Arnold] not to impress
      a judge or a jury. [Arnold] testified that he discussed the situation
      with Defendant on a number of occasions, and they agreed jointly that

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      it was good strategy not to present record mitigation. The reasoning
      for this decision was that if any of the favorable mitigators were
      argued, than the unfavorable information would also be before the
      Court.
              . . . . [T]he Court finds that it was a strategic choice made by
      both counsel and Defendant not to present record mitigation to the
      Court for its consideration. Defendant is therefore not entitled to
      relief.




                                         C.

      As indicated above, Judge Tarbuck denied Kormondy’s Rule 3.851 motion

on June 20, 2005. Kormondy appealed his decision to the Florida Supreme Court,

which affirmed, concluding that Judge Tarbuck, in disposing of Kormondy’s

ineffective assistance claims, properly applied the Strickland v. Washington

standards to factual findings that had ample evidentiary support in the record.

Kormondy v. State (Kormondy III), 983 So. 2d 418 (Fla. 2008).

                                         IV.

      On July 24, 2008, Kormondy petitioned the United States District Court for

the Northern District of Florida for a writ of habeas corpus setting aside his 1994

convictions and the death sentence he received in 1999. His petition presented

seven claims for relief, all rejected by the Florida Supreme Court. Three of the

claims are before us in this appeal. Two of the claims, both alleging ineffective

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assistance of counsel, were disposed of in Kormondy III, the other claim, alleging

a denial of the right of confrontation, was disposed of in Kormondy II. Since our

review is limited to these three claims, we omit discussion of the other claims

Kormondy’s petition presented.

      The first Kormondy III claim was that Stitt labored under a conflict of

interest in representing Kormondy during the guilt phase of the prosecution, in

1994. The second Kormondy III claim was that Arnold performed deficiently in

the penalty phase of the case, in 1998 and 1999. The Kormondy II claim was that

Judge Tarbuck, in sustaining the State’s objection to a question Arnold asked

Cecilia McAdams on cross-examination, denied Kormondy his constitutional right

to confront her regarding her ability to identify the men involved in the charged

offenses.

      The District Court’s review of these claims was limited to the record before

the Florida Supreme Court when it decided the claims. Cullen v. Pinholster, 563

U.S. —, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) (“We now hold that

review under § 2254(d)(1) is limited to the record that was before the state court

that adjudicated the claim on the merits.”). This limitation is inherent in the

application of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 (“AEDPA”). Under AEDPA, a federal court may not

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grant habeas relief on a claim previously adjudicated 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 of the United

States,” or “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 statutory phrase “clearly established Federal law” refers only to “the

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time

of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120

S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). A state court decision is “contrary

to” such holdings “if the state court arrives at a conclusion opposite to that reached

by [the Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially indistinguishable

facts.” Id. at 412–13, 120 S. Ct. at 1523. The “unreasonable application” clause

of § 2254(d) permits a federal court to grant habeas relief “if the state court

identifies the correct governing legal principle . . . but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413, 120 S. Ct. at 1523. In

sum, the District Court owed considerable deference to the Florida Supreme

Court’s decisions rejecting Kormondy’s claims.




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      The District Court’s review of the two claims rejected in Kormondy III

concerned the Florida Supreme Court’s application of the United States Supreme

Court’s holdings in Strickland v. Washington. To make out a Sixth Amendment

ineffective-assistance claim under Strickland, a petitioner must show (1) that

counsel’s performance was deficient and (2) that counsel’s deficient performance

prejudiced the defense. 446 U.S. at 687, 104 S. Ct. at 2064. The performance

prong is satisfied only if the petitioner “show[s] that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064.

Because “[t]here are countless ways to provide effective assistance in any given

case,” id. at 689, 104 S. Ct. at 2065, “the range of what might be a reasonable

approach at trial must be broad,” Chandler v. United States, 218 F.3d 1305, 1313

(11th Cir. 2000) (en banc). Thus, “a petitioner must establish that no competent

counsel would have taken the action that his counsel did take.” Chandler, 218

F.3d at 1315. The prejudice prong requires the petitioner to establish a

“reasonable probability” that, but for counsel’s errors, the outcome at trial would

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.




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       Both Strickland and AEDPA prescribe “highly deferential” review. Richter,

— U.S. at —, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at

2065; Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S. Ct. 2059, 2066 n.7, 138 L.

Ed. 2d 481 (1997)) (internal quotation marks omitted). And where, as here, both

apply, the “review is ‘doubly’ so.” Id. (quoting Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009)); see also Childers v.

Floyd, 642 F.3d 953, 972 (11th Cir. 2011) (en banc) (observing that, because of

the presumption under 28 U.S.C. § 2254(e)(1) that state court findings of fact are

correct, “where factual findings underlie the state court’s legal ruling, [the] already

deferential review [under § 2254(d)] becomes doubly so”). Governed by these

principles, the District Court addressed the ineffective assistance claims

Kormondy III denied. The court began with the claim asserting Stitt’s conflict of

interest.

                                            A.

       In his brief to the Florida Supreme Court in Kormondy III, Kormondy

phrased his claim that Stitt labored under a constitutionally impermissible conflict

of interest as he had presented it to Judge Tarbuck in his Rule 3.851 motion:

“Whether . . . [Stitt] was . . . ineffective in failing . . . to withdraw from

[Kormondy’s] representation before the first trial.” According to Kormondy, Stitt

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“should have demanded her employer [the Public Defender for the First Judicial

Circuit of Florida] remove her from [the] case, or, at the very least, inform the trial

court about her conflict of interest on the record.”

      The crux of Kormandy’s argument was that, under the United States

Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100 S. Ct.

1708, 1719, 64 L. Ed. 2d 333 (1980), Stitt “had an obligation to inform the Court,

on the record, of any potential conflict of interest.” And not only did she have an

obligation to state “on the record” the fact that she and the victim were high school

classmates, “Judge Kuder was put on notice of a potential conflict by Stitt in

chambers and failed to inquire of counsel on the record.”

      The Florida Supreme Court found no merit in Kormondy’s conflict-of-

interest claim because Kormondy failed to establish that Stitt “‘actively

represent[ed] conflicting interests.’” Kormondy v. State (Kormondy III), 983 So.

2d 418, 434 (Fla. 2003). The Florida Supreme Court indirectly addressed and

rejected the argument that Cuyler v. Sullivan required it to find a prejudicial

conflict in Kormondy’s case by drawing on Cuyler’s statement of what must be

shown to establish a Sixth Amendment ineffective assistance claim based on a

conflict of interest: “‘“[Un]til a defendant shows that his counsel actively

represented conflicting interests, he has not established the constitutional predicate

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for his claim of ineffective assistance.”’” Id. (quoting Hunter v. State, 817 So. 2d

786, 792 (Fla. 2002) (quoting Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719)). “‘A

possible, speculative or merely hypothetical conflict is “insufficient to impugn a

criminal conviction.”’” Id.

      In his habeas petition to the District Court, Kormondy argued that the

Florida Supreme Court’s decision could not be sustained under 28 U.S.C. §

2254(d)(1) and (2), and that a writ of habeas corpus had to issue. The decision

failed subpart (1), he said, because it “was contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent,

namely Cuyler v. Sullivan; it failed subpart (2) because it was based on “an

unreasonable determination of the facts.” He contended that the decision was not

supported by the evidence because, in passing on the claim, neither Judge Tarbuck

nor the Florida Supreme Court considered all of the relevant evidence. The

District Court was unpersuaded and therefore dismissed the claim that the Florida

Supreme Court, applying Cuyler, should have found that Stitt had an

impermissible conflict of interest and, for that reason, (1) had a constitutional duty

to withdraw from the case, and (2) that her failure to do so prejudiced his defense

as a matter of law. Kormondy v. Secretary, No. 3:08cv316-RH, slip op. at 44

(N.D. Fla. Sept. 29, 2011).

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                                          B.

      As he did in briefing his claim against Stitt, Kormondy, in describing to the

Florida Supreme Court his ineffective assistance claim against Arnold, phrased the

claim as he had presented to Judge Tarbuck: (1) Kormondy’s “waiver of

presentation of mitigating evidence to the jury at the recommendation of his

attorney was invalid because [Arnold] failed to investigate,” and (2) “[Arnold] was

ineffective for failing to present record mitigation to the Court in his [sentencing]

memorandum and at the Spencer hearing.” Kormondy argued that the Florida

Supreme Court should reverse Judge Tarbuck’s rulings on both aspects of his

ineffective assistance claim, vacate his death sentence, and remand the case for a

new sentencing proceeding before the jury because the rulings were based on facts

that were clearly erroneous.

      The Florida Supreme Court was not persuaded. Regarding Arnold’s alleged

failure to investigate, the court agreed with Judge Tarbuck that there was

      ample evidence that counsel did conduct a reasonable investigation
      and discussed all possible mitigation evidence with Kormondy, but
      Kormondy chose not to present any mitigation evidence. Kormondy
      was questioned by counsel and the trial court on the record whether
      he understood that he had a right to present mitigation evidence, and
      Kormondy replied that he understood that he had that right. Thus,
      Kormondy knowingly and voluntarily waived his right to present
      mitigation evidence.



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Kormondy III, 983 So. 2d at 435–36.

       As for the claim that Arnold performed deficiently post-verdict, the Florida

Supreme Court held that the evidence at the Rule 3.851 hearing supported Judge

Tarbuck’s finding that Arnold decision not to present to the court at sentencing the

record of the mitigation evidence Davis presented to the jury in 1994 was a sound

strategic decision. Id. at 436. Arnold fully considered presenting such evidence,

but, with Kormondy’s assent, opted to forego such presentation due to the adverse

information it would have yielded. Id.

       In his habeas petition to the District Court, Kormondy alleged that the

provisions of 28 U.S.C. § 2254(d)(1) and (2) required the writ to issue. Kormondy

asserted that the Florida Supreme Court’s decision regarding Arnold’s

performance was contrary to, or an unreasonable application of, Schiro v.

Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007).30 According

to Kormondy, under Schiro,31



       30
           The opinion in Schiro came down on May 14, 2007. The opinion in Kormondy III
bears the date October 11, 2007. Kormondy did not cite Strickland v. Washington in support of
his argument that the Florida Supreme Court’s decision was contrary to, or an unreasonable
application, of a United States Supreme Court holding.
       31
          Kormondy’s petition did not explicitly state that Shiro required the performance
described in the quoted language. We assume that, since Shiro was the only United States
Supreme Court decision cited in support of the instant claim, that Shiro mandated the
performance, as well as Farr v. State.

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      [e]ven if the alleged waiver was valid, Mr. Arnold was required to
      present available mitigation to the jury regardless of Kormondy’s
      objection. However, if Arnold was not ineffective for failing to
      present available mitigation to the jury, there was no excuse for not
      presenting the mitigation to the court. Farr v. State, 621 So. 2d 1368
      (Fla. 1993).

      Kormondy asserted that the Florida Supreme Court’s decision 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)(2), because “the Florida

Supreme Court either ignored the mitigation presented in the first trial, or totally

misconstrued the argument regarding record mitigation,” i.e., the transcript of the

penalty phase of the 1994 trial before the jury. “The Florida Supreme Court [also]

failed to consider all relevant evidence by Mr. Arnold at the evidentiary hearing,

as well as Mr. Kormondy’s, about what mitigation Kormondy was waiving and the

basis for the waiver.”

      The District Court was unpersuaded. Without mentioning Schiro, the court

held that Strickland v. Washington, which the Florida Supreme Court applied,

controlled the decision. Kormondy v. Secretary, No. 3:08cv316-RH, slip op. at

30. Regarding Strickland’s performance, the District Court found that “the record

fully supports the Florida Supreme Court’s conclusion that [Arnold] did not render

ineffective assistance by failing to investigate or present mitigation evidence.” Id.,



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slip op. at 32. Addressing the argument that Arnold was ineffective in not

presenting record mitigation post-verdict to the sentencing judge, the District

Court concluded that the following testimony indicated he was not ineffective:

      [Arnold] testified in the state collateral proceeding that he and Mr.
      Kormondy were concerned that some of the possible mitigation
      evidence would do more harm than good. An attorney reasonably
      considers this possibility. See Kimbrough v. Sec’y, Dep’t of Corr.,
      565 F.3d 796, 804 (11th Cir. 2009) (upholding as reasonable an
      attorney’s decision not to present expert testimony based on a
      “concern that the limited beneficial information they might have been
      able to present would have been outweighed by the risk of opening
      the door to the admission of more damaging information.”). [Arnold]
      was concerned about the negative effect of evidence of drug and
      alcohol addiction. And he was concerned that any testimony of the
      expert he contacted would be marred by the expert’s conclusion that
      Mr. Kormondy was malingering and attempting to fake a mental or
      emotional condition. The concern about a corresponding negative
      effect from any mitigation evidence drew support from the experience
      in the first penalty-phase trial; one of the attorneys from that trial said
      that “for every aspect of the mitigation that I got into it and opened
      the door, every witness that I called whether it be expert or lay
      person, it basically opened the door to your cross-examination and
      brought out some facts that were not—were actually not mitigating
      aspects.”

Id., slip op. at 31. Having concluded that this testimony resolved in the

ineffectiveness issue, the District Court moved from Strickland’s performance

prong to its prejudice prong, and, concluded that Arnold’s omission of the

mitigation evidence Kormondy claims should have been submitted caused him no

prejudice.

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             Nor has Mr. Kormondy shown prejudice from the failure to
      present mitigation evidence. On this record, there is no reasonable
      likelihood that mitigation evidence would have made a difference.
      See Burger v. Kemp, 483 U.S. 776, 788–95[, 107 S. Ct. 3114,
      3122–3126, 97 L. Ed. 2d 638] (1987) (holding that when the
      available mitigation evidence would not have aided the petitioner’s
      case, the attorney did not render ineffective assistance by failing to
      present the evidence); Grayson v. Thompson, 257 F.3d 1194, 1225
      (11th Cir. 2001) (Even assuming arguendo ineffective assistance in
      the mitigating case at sentencing, there is no reasonable probability
      that the balance of aggravating and mitigating circumstances that led
      to the imposition of the death penalty in this case would have been
      different had counsel introduced the evidence compiled and presented
      in [petitioner’s] state habeas proceedings.”).

Id., slip op. at 32 (second alteration in original).

      In sum, in the District Court’s view, the evidence in the record fully

supported the Florida Supreme Court’s finding that “Kormondy knowingly and

voluntarily waived the right to present mitigating evidence and that this was a

strategic choice.” Id., slip op. at 30. The District Court therefore concluded that

“the Florida Supreme Court’s rejection of this claim was not contrary to or an

unreasonable application of federal law as determined by the United States

Supreme Court, nor were the rulings based on an unreasonable determination of

the facts in light of the evidence presented in the state court.” Id., slip op. at

32–33.




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                                         C.

      After disposing of Kormondy’s ineffective assistance claims, the District

Court turned to the third claim now before us, which is based on the Sixth

Amendment’s Confrontation Clause. This claim arose during Arnold’s cross-

examination of Cecilia McAdams during the penalty phase of the trial. The

District Court’s order denying habeas relief described the setting.

             At the penalty-phase retrial, Mrs. McAdams gave testimony
      consistent with this version of events. Mr. Buffkin entered the home
      first—a point on which all apparently have agreed all along. Mr.
      Hazen was the first to sexually assault Mrs. McAdams. Mr. Hazen
      invited Mr. Kormondy to join the sexual assault, and he did. Mr.
      Hazen and Mr. Kormondy returned to the kitchen with Mrs.
      McAdams, and then Mr. Buffkin took her to the back room and
      sexually assaulted her. While Mr. Buffkin was in the back room with
      Mrs. McAdams, she heard a gunshot in the kitchen.

            [Arnold] cross-examined Mrs. McAdams, focusing at one point
      on her assertion that the third assailant—the one who was with her
      when the shot was fired—was the person who entered the home first.
      The cross-examination included this exchange:

             Q.    [W]ith regards to the individual who last took you
                   back to the bedroom, you indicated a few minutes
                   ago, when you were testifying, that you thought
                   the voice was the same as the first person. Isn’t it
                   really true that you don’t really know which one it
                   was?

             A.    No, sir. I feel very confident that I do know which
                   one it was.



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Q:    Do you remember back in March the 29th of 1994
when these cases first got started?

A.    Yes, sir.

Q.    And Mr. Edgar and several other attorneys were
present when they took your deposition?

A.    Yes, sir.

Q.    Do you recall if – at that time, if you were asked
with regard to the identity of the person who took you
back?

      MR. EDGAR: Your Honor, I object.

      THE COURT: I sustain. Do not answer the
      question.

Q.     [Arnold] Mrs. McAdams, were you ever able to
identify Johnny Shane Kormondy as being in your
home?

A.    I did not see him as far as his full face, no, sir. I
recognize some similar characteristics and features.

Q.     Because of the height, the weight, and that sort of
thing?

A.    Hair.

Q.    And hair?

A.    Uh-huh.




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              Q.     And would the same go with . . . Hazen, whatever
              his name was, did you ever – were you ever able to
              identify him?

              A.      No, sir.

Id., slip op. at 24–25 (second alteration in original).

       In appealing his sentence to the Florida Supreme Court, Kormondy, relying

on Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674

(1986),32 argued that, in sustaining the prosecutor’s objection to the question “Do

you recall . . . if you were asked with regard to the identity of the person who took

you back?”, the trial court denied him his “constitutional right to cross-examine a

witness when he attempted to impeach Mrs. McAdams’[s] testimony by

questioning her about a prior inconsistent deposition statement.” Kormondy II,

845 So. 2d at 52. The Florida Supreme Court rejected the argument, adopting the

State’s argument instead.

       As the State argues, the defense made no attempt to establish through
       a proffer or other explanation that the trial court should not have
       sustained the State’s objection. The defense did not indicate what
       was being sought from the witness by the question nor that there was
       evidence that would demonstrate that Mrs. McAdams had
       misidentified her assailants. See Finney v. State, 660 So. 2d 674, 684

       32
            Kormondy’s brief cited Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L.
Ed. 2d 674 (1986), in a string cite, but did not explain why the Florida Supreme Court should
find trial court error based on those decisions. Kormondy also cited within that string cite,
“Olden v. Kentucky, 488 U.S. 227 (1988); United States v. Owens, 484 U.S. 554 (1988); . . .
Davis v. Alaska, 415 U.S. 308 (1974); and California v. Green, 399 U.S. 149 (1970).”

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      (Fla. 1995) (holding that without a proffer it is impossible for the
      appellate court to determine whether the trial court’s ruling was
      erroneous and if erroneous what effect the error may have had on the
      result). Therefore, it cannot be determined from the record that the
      defendant was deprived of his opportunity to cross-examine or
      impeach the witness.

Id. at 52–53.

      The Florida Supreme Court cited no United Supreme Court case in

rejecting Kormondy’s constitutional argument. Rather, as the above quotation

indicates, the Florida Supreme Court rejected his argument on a state law ground;

after the trial court sustained the prosecutor’s objection, defense counsel, to obtain

appellate review of the ruling, had to inform the court of the answer he expected

Mrs. McAdams to give. The District Court acknowledged that the Supreme Court

had decided the issue as a question of Florida law, and held that it was a “proper

ground,” Kormondy v. Secretary, No. 3:08cv316-RH, slip op. at 26, “‘a state law

ground that is independent of the federal question and adequate to support the

judgment,’” id. at 28 (quoting Coleman v. Thompson, 501 U.S. 722, 729–30, 111

S. Ct. 2546, 2553–54, 115 L. Ed. 2d 640 (1991)). At the same time, the District

Court responded to Kormondy’s argument that the Florida Supreme Court’s

decision was contrary to, or an unreasonable application of Van Arsdall, and

concluded that “Van Arsdall does not hold that a trial court cannot require a



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proffer or its equivalent as a condition for preserving a Confrontation Clause

objection.” Id. at 27.

                                         V.

      The District Court denied Kormondy’s petition for a writ of habeas corpus

on July 24, 2008. He now appeals its decision. As was the situation in the District

Court, we are tasked with determining whether the Supreme Court of Florida, in

rejecting a claim at issue here, rendered a decision that was contrary to, or

involved an unreasonable application of, a Supreme Court holding, or was based

on an unreasonable determination of fact. And in carrying out that task, we, like

the District Court, are limited to the record on which the Florida Supreme Court

based its decision. Cullen, 563 U.S. at —, 131 S. Ct. at 1398. With that said, we

turn to the three claims on review, taking them up in the same order the District

Court did.

                                         A.

      In his brief to this court, Kormondy frames the issue concerning Stitt’s

alleged conflict of interest and his argument on that issue, thusly: “Kormondy’s

Fifth, Sixth, and Fourteenth Amendment Rights were violated because he did not

have conflict-free counsel.” Appellant’s Br. at 1, 47. That is not how he framed

the issue in the Rule 3.851 court, the Florida Supreme Court, and the District

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Court. In those courts, he framed the issue as: “Whether [Stitt] was . . . ineffective

in failing . . . to withdraw from [Kormondy’s] representation before the first trial.”

Stitt was ineffective, Kormondy argued, because she and the victim had been high

school classmates.

       In framing the issue and the argument as he has done in this court,

Kormondy is attempting to transform a series of defense counsel miscues, which,

standing alone, could not support a constitutional claim, into a claim that the

totality of the miscues worked a manifest injustice requiring a new trial.33 This

claim of combined instances of ineffective assistance has not been exhausted, and

we therefore do not consider it. See 28 U.S.C. § 2254(b)–(c). What we do

consider is whether the District Court erred in concluding that there was no basis

for finding that the Florida Supreme Court’s decision somehow misapplied Cuyler

v. Sullivan or that it was based on facts having no evidentiary support in the

record. The answer is no. There is nothing in the record of this case indicating

that, at the time Stitt undertook Kormondy’s representation, she was “actively

represent[ing] conflicting interests.” Kormondy III, 983 So. 2d at 434.



       33
          For example, Kormondy alleged that Stitt “conceded [his] guilt of robbery and
burglary to the jury” without consulting him, “failed to impeach Mrs. McAdams with available
evidence,” including her own deposition, and “failed to impeach [Long] with his criminal
record.”

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                                         B.

      In his brief on appeal, Kormondy frames the issue and argument concerning

Arnold’s alleged ineffectiveness in the penalty phase essentially as he did in the

Rule 3.851 court, the Florida Supreme Court and the District Court: “Kormondy

was denied the effective assistance of counsel at the resentencing proceeding due

to counsel’s failure to adequately investigate and introduce mitigating evidence.”

Appellant’s Br. at 1, 22. Kormondy asks that we reverse the District Court’s

decision rejecting this claim because the District Court erred in concluding that

“‘the record fully supports the Florida Supreme Court’s conclusion that the

penalty-phase-retrial attorney did not render ineffective assistance by failing to

investigate or present mitigating evidence.’” Id. at 34. Kormondy asserts,

moreover, that the Supreme Court’s “decision was objectively unreasonable and

its factual findings [were] rebutted by clear and convincing evidence.” Id.

      The nub of Kormondy’s argument, as he presented it to the District Court

and does so in his brief to this court, is that the Florida Supreme Court should not

have relied on, as Judge Tarbuck did, “Arnold’s testimony that ‘Kormondy and

counsel agreed that it was a good strategic decision not to present certain record

mitigation because of statements that could come out in cross-examination of

defense witnesses.’” Id. at 33 (quoting Kormondy III, 983 at 436). Kormondy

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testified that he disagreed with that strategy; he wanted Arnold to introduce the

mitigation evidence presented at the 1994 penalty phase, “he just did not want his

mother to testify.” Id. at 38. “[C]ontrary to the state court’s determination, no

mitigation was presented to the jury because Arnold was either unprepared to do

so or he had a faulty understanding as to what constitutes mitigation.” Id. at 42.

In short, Kormondy’s position, as communicated to Arnold, was that he wanted

Arnold to present to the jury the same mitigation testimony Davis presented to the

jury in 1994 with the exception of his mother’s testimony. This mitigation, if

presented, would have been enhanced, his brief implies, with the testimony of Dr.

Gary Jacobsen, a physician specializing in addiction,34 id. at 26, of whose opinion

Arnold was either unaware or negligently disregarded. Davis hired Dr. Jacobsen

in 1998, while Davis was still representing Kormondy, and presumably would

have had summoned Dr. Jacobsen to testify before the jury. “Dr. Jacobsen . . .

examined Kormondy in August 1998, and he submitted an evaluation” which

covered Kormondy’s social history with a focus on his chemical addition to

alcohol and an assortment of drugs. Id. at 27. In addition to detailing Kormondy’s

use of alcohol, which began at age 12 (or earlier), and a variety of other



       34
           Dr. Jacobsen’s specialty was the same as Dr. Donald G. Morton’s, the addiction
specialist who testified as a defense witness in the 1994 penalty phase. See supra part I.B.

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chemicals—marijuana, sniffing gasoline, LSD and Mushrooms (hallucinogens),

amphetamines, cocaine and crack cocaine—Dr. Jacobsen described Kormondy’s

drug use around the time of the McAdams murder, on July 11, 1993. Id. at 27–32.

      Cocaine use on 7/10/93 included at least 2 times in the afternoon in
      the $40 - $60 range. He doesn’t know how many times he used on
      7/10 because he had been trading stolen goods for cocaine for a few
      weeks and going to the dealer multiple times a day. He does not
      know when he last used before the date of incident. All of his money
      was going to buy cocaine, which caused arguing with his wife and
      they were not on the “right terms”. She would stay with her mom and
      dad for several days at a time and he might leave the house for a day
      or two at a time himself. This was occurring for about 2 weeks prior
      to 7/10. Curtis Bufkin [sic] was staying with them. He knew Mr.
      Bufkin [sic] was an escapee. In response to specific questioning he
      admits that after 7/11/93 he traded the gun for cocaine. He knew that
      he needed to get rid of the gun so he thought he might as well trade it
      for cocaine and nobody would ever say where it came from. After
      7/11/93 he continued to use cocaine whenever he had the money or
      something to trade until he was arrested.

Id. at 30 (emphasis added).

      Kormondy acknowledges that he expressly declined to present mitigation

evidence in two lengthy colloquies that took place in court (in the absence of the

jury) both immediately prior to the commencement of the trial of the penalty phase

and after the State rested its case. His brief recalls his testimony at the Rule 3.851

evidentiary hearing before Judge Tarbuck, when he was questioned about the

answers he gave during those colloquies. He “remember[ed] appearing in front of



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Judge Tarbuck, but some of the questions [he could not] remember.” Id. at 40.

His brief cites the following question and answer from the evidentiary hearing.

      Q. If you are saying you wanted mitigation to be presented during the
      second penalty phase, why did you agree to the waiver of what Mr.
      Arnold asked you about?

      A. I believe I was just taking his advice on it. He felt that what was
      best at the time, so I was going along with him and taking his advice
      on it. I didn’t really —

Id.

      The inferences Judge Tarbuck could have reasonably drawn from the

questions Arnold put to Kormondy during these colloquies are (1) that Arnold was

fully aware of the mitigating evidence Davis had presented to the jury at the trial

of the penalty phase in 1994 and the mitigating evidence available at that moment,

in May 1999, and (2) that Arnold and Kormondy had discussed such evidence at

length and decided not to present it. Kormondy obviously had a vivid memory of

the evidence because he was adamant that he did not want his mother to testify; he

had observed how she had been humiliated. In sum, the record amply supports

Judge Tarbuck’s and the Florida Supreme Court’s findings regarding Arnold’s

investigation of mitigating evidence, his preparation for the jury trial and post-

verdict sentencing, and Kormondy’s knowing and voluntary agreement with the

strategy Arnold employed.

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      As for that strategy, at sentencing, Arnold had reasonable arguments in

mitigation. First, the only evidence the State had to prove that Kormondy was the

shooter was his “confession” to Long, after a night of drinking. Long admitted on

cross-examination in the guilt phase of the trial, in 1994, that “he smoked fifty

dollars worth of crack-cocaine and drank six pitchers of beer prior to Kormondy’s

revelation that night.” Long, who had a criminal record and was on the run for

probation violation, had every incentive to implicate Kormondy—so that the

authorities might go easy on him when the probation revocation hearing rolled

around. In addition, he was looking to split a $50,000 reward with Robarts. At

the very least, the credibility of Long’s testimony was problematic. Second, some

evidence suggested that Hazen, not Kormondy, pulled the trigger. Hazen was the

one who had been possessing the .38-caliber handgun which fired the fatal shot.

Hazen found the gun while rummaging through the drawers in the master

bedroom; he used the gun to force Cecilia McAdams into the bedroom for oral

sex; he had the gun in his possession while she was performing oral sex and

Kormondy was raping her; and after that ended, he still had the gun in his

possession when he and Kormondy left the bedroom and returned to the kitchen.

Finally, Hazen was in the kitchen when the shot was fired. Either he shot Gary

McAdams or he gave the gun to Kormondy, and Kormondy did the shooting. In

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the end, except for Long’s testimony, who had the gun was never established.35 At

the end of the day, Arnold had a good argument that Kormondy should not be the

only one of the three to receive a death sentence.

       Kormondy’s brief implies that Arnold’s strategy could have accommodated

the mitigation evidence presented in the first penalty phase—that the two

strategies were not inconsistent. Arnold could raise doubt about Kormondy’s

status as the one who shot Gary McAdams and argue that, in light of the sentences

Hazen and Buffkin received, Kormondy should receive a life sentence and, at the

same time, argue that his life should be spared because of his impoverished

upbringing and chemical addiction caused by years of alcohol and drug abuse as

shown by the mitigating evidence. There are two problems with this argument.

First, if Dr. Jacobsen testified as he wrote in his evaluation, he would establish

that Kormondy had the murder weapon and had to get rid of it, so he traded it for

cocaine. Second, “this is not a case where the weight of the aggravating

circumstances or the evidence supporting them was weak.” Rutherford v. Crosby,

       35
           Further, Hazen, Kormondy’s close friend and quasi-cousin, was tried following
Kormondy’s trial. The State wanted Kormondy, who would not be sentenced until October 7,
1994—long after Hazen’s trial—to testify against Hazen and obtained an order from the judge
presiding over Hazen's case, Judge Kuder, granting Kormondy use immunity. When the State
called Kormondy as a witness, however, he refused to testify, so the judge held him “in contempt
of court.” Kormondy I, 703 So. 2d at 457. The record does not tell us why Kormondy refused to
testify. We don't know whether Stitt and Davis advised him to testify; his testimony, if he
identified Hazen as the trigger man, may have been of benefit at sentencing.

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385 F.3d 1300, 1316 (11th Cir. 2004). And the evidence of Kormondy’s extensive

drug and alcohol addictive consumption is, “as we have repeatedly recognized . . .

often a two-edged sword, that provides an independent basis for moral judgment

by the jury.” Suggs, 609 F.3d 1218, 1231 (11th Cir. 2010) (internal quotation

marks and citations omitted); see also Pace v. McNeil, 556 F.3d 1211, 1224 (11th

Cir. 2009) (“[P]resenting evidence of a defendant’s drug addiction to a jury is

often a ‘two-edged sword’: while providing a mitigating factor, such details may

alienate the jury and offer little reason to lessen the sentence.”); Grayson v.

Thompson, 257 F.3d 1194, 1227 (11th Cir. 2001) (same); Thompkins v. Moore,

193 F.3d 1327, 1338 (11th Cir. 1999) (same); Rogers v. Zant, 13 F.3d 384, 388

(11th Cir. 1994) (same). The evidence of Kormondy’s impoverished upbringing,

lack of parenting, and a father who abandoned him is also problematic.

Kormondy’s half-siblings, Vernon Laura, and Bill, were brought up in the same

environment of physical abuse, neglect and poverty, their fathers left their mother

to fend for herself and her children, yet they emerged as law abiding citizens. The

mitigating evidence now pressed by Kormondy has its obvious limitations.

      We conclude that, given the “double” deference due the Florida Supreme

Court’s decision by Strickland v. Washington and AEDPA, the District Court’s




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decision rejecting Kormondy’s claim of ineffective assistance on Arnold’s part

must be affirmed.

                                               C.

      We turn now to the third claim on appeal, which challenges the Florida

Supreme Court’s holding that the trial court did not err in sustaining the State’s

objection to a question Arnold put to Cecilia McAdams on cross-examination. In

his brief to the Florida Supreme Court, Kormondy framed the issue this way:

“Whether Kormondy was denied his right to cross-examine and confront state

witness Cecilia McAdams concerning her ability to identity and distinguish the

perpetrators. In his brief to this court, Kormondy reframed the issue to:

“[Whether] Kormondy was denied his right to cross-examine and confront his

accuser in violation of the Fourth, Fifth, and Fourteenth Amendments.”

Appellant’s Br. at 1, 17. Although, in the argument portion of his brief to this

court, Kormondy cites Sixth Amendment Confrontation Clauses decisions in

support of his claim, principally Delaware v. Van Arsdall,36 id. at 20–22, and the

District Court held that the Florida Supreme Court’s decision was neither contrary

to nor involved an unreasonable application of Van Arsdall, in framing his issue

here Kormondy chose not to refer to the Confrontation Clause. He relies, instead,


      36
           The other Confrontation Clause decisions Kormondy cites are cited in note 31, supra.

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on the Fourth and Fifth Amendments and the Fourteenth Amendment simpliciter

and, then, in arguing that the Florida Supreme Court erred in sustaining the trial

court’s evidentiary ruling, makes no mention of those Amendments.37 The

technical question this mis-framing of the issue creates is whether we decide the

case in accordance with the issue as framed, or ignore the mis-framing and decide

the matter as presented in his argument. Because the Florida Supreme Court

recognized the claim as alleging a Confrontation Clause violation, but disposed of

it on a state law ground, and the District Court as an alternative holding addressed

the claim under the Confrontation Clause, we do likewise.

       Kormondy argues that the District Court erred in finding no basis for

disturbing Florida Supreme Court’s disposition of Kormondy’s claim. We find no

error. The District Court correctly held that the Florida Supreme Court properly


       37
            To the extent that Kormondy’s claim is based on the Fourth and Fifth Amendments,
the claim is unexhausted. Moreover, Kormondy cites no United States Supreme Court Fourth or
Fifth Amendment holdings applicable in the context of the claim at issue. As for the Fourteenth
Amendment, Kormondy cites Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed.
2d 297 (1973), an application of the Due Process Clause of the Fourteenth Amendment. In that
case, Chambers, the petitioner, claimed that the Mississippi Supreme Court—in sustaining the
trial court’s denial of his request to have a witness, who had confessed and later retracted his
confession to the murder of which Chambers had been charged, declared a hostile witness and
preclusion of the testimony of witnesses to such confession on hearsay grounds—denied him a
fundamentally fair trial in violation of the Due Process Clause of the Fourteenth Amendment.
        In the case at hand, nowhere in his brief to the Florida Supreme Court, in his habeas
petition to the District Court, or in his brief to this court did Kormondy argue that the trial court’s
challenged evidentiary ruling denied him a fundamentally fair trial before the jury in the second
penalty phase proceeding. We therefore do not consider the claim.

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rejected the claim on an independent and adequate state law ground, Kormondy v.

Secretary, No. 3:08cv316-RH, slip op. at 27–28, and we can take judicial notice of

the proposition that courts uniformly require a cross-examiner to put a question to

the witness and obtain an answer before confronting the witness with a previous

inconsistent answer. The court held, alternatively, on de novo review, that the

Florida Supreme Court’s decision was not contrary to, or an unreasonable

application of, United States Supreme Court precedent, namely Van Arsdall. Id.,

slip op. at 27. The District Court explained that there was no valid claim at all,

much less one under the Confrontation Clause. Here is the court’s analysis:

             Mr. Kormondy asserts he should have been able to impeach
      Mrs. McAdams with her deposition testimony that she did not see the
      face of the man who brought her into the bedroom when her husband
      was shot. But the court did not bar Mr. Kormondy’s attorney from
      asking exactly that. Mrs. McAdams testified on direct
      that she matched the voice of the third assailant with that of the
      person who entered the home first, not that she saw the third
      assailant. She presumably would have said, if asked, that she did not
      see the third assailant’s face. She would properly have been
      impeached with deposition testimony that she did not see the third
      assailant’s face only if she first testified at trial that she did see his
      face. When the defense attorney attempted to jump straight to the
      deposition testimony, without first having elicited Mrs. McAdams’s
      testimony on this point at the trial, the court sustained an objection.
      Enforcing the rule that a witness cannot be impeached with
      deposition testimony unless it is inconsistent with the witness’s
      testimony at trial does not violate the Confrontation Clause.




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Id., slip op. at 25–26. We agree that the Florida Supreme Court properly rejected

the claim on an adequate and independent state law ground and, alternatively, that

the decision was neither contrary to, or an unreasonable application of, Van

Arsdall.

                                        VI.

      For the reasons stated in this opinion, the judgement of the District Court

denying the writ of habeas corpus is

      AFFIRMED




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