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                                                                        [DO NOT PUBLISH]



                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                        No. 12-12201
                                  ________________________

                            D.C. Docket No. 3:09-cv-00058-HLA



CONNIE RAY ISRAEL,

llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllllRespondents - Appellees.

                                 ________________________

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

                                          (April 19, 2013)

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

WILSON, Circuit Judge:
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      Connie Ray Israel, a death row inmate, appeals the district court’s dismissal

of his 28 U.S.C. §2254 petition for a writ of habeas corpus on the grounds of

ineffective assistance of counsel. After denying his petition, the district court

granted a certificate of appealability on the sole issue of whether Israel’s counsel

was ineffective during the penalty phase of Israel’s trial. Specifically, Israel’s

attorney failed to file a sentencing memorandum on possible mitigating

circumstances, despite the sentencing judge’s request that he do so. Having

reviewed the record and the briefs, and with the benefit of oral argument, we

affirm the district court’s judgment denying Israel habeas relief.

                                I. BACKGROUND

A. Factual Background

      On the morning of December 27, 1991, Putnam County police responded to

a call from a concerned neighbor of Esther Hagans. When the police entered

Hagans’s bedroom, they found the 77-year-old woman deceased on her bed. She

had been sexually assaulted and brutally beaten on her head, causing major brain

hemorrhaging. The medical examiner later concluded that the stress and shock of

the attack caused Hagans’s already weak heart to give out. Semen stains from the

scene matched Israel’s DNA.




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B. Procedural Background

       On March 1, 1999, a Florida jury convicted Israel of burglary of a dwelling

with a battery, kidnaping, sexual battery with great force, and first-degree murder.

Florida’s statutory scheme requires two sentencing hearings after the verdict in

capital cases: one in front of the judge and jury, and a second in front of the

judgeonly , known as a Spencer hearing. See Fla. Stat. § 921.141(1); see generally

Spencer v. State, 615 So. 2d 688 (Fla. 1993) (per curiam). 1 In both hearings, the

prosecution and the defense present evidence of aggravating circumstances and

mitigating circumstances, both statutory and nonstatutory. 2

       Evidence of Israel’s mitigating circumstances came primarily from the

testimony of Dr. Harry Krop, a clinical psychologist. In addition to two statutory

mitigators, Dr. Krop’s testimony sought to establish evidence of drug abuse, brain

       1
        A Spencer hearing occurs after the jury has recommended a sentence but before the
judge imposes one. 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.

Spencer, 615 So.2d at 691.

       2
         Sections 921.141(5) and (6) of the Florida Statutes provide lists of the aggravating and
mitigating circumstances to be considered by the court. Section 921.141(6)(h) includes “[t]he
existence of any other factors” that would mitigate, commonly referred to as “nonstatutory
mitigators.”
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damage, and low intellectual functioning as nonstatutory mitigating circumstances.

After the first sentencing hearing, the jury recommended death by a vote of 11 to 1.

On May 14, 1999, the trial court held the Spencer hearing.

      Prior to the Spencer hearing, the state’s attorney had submitted a sentencing

memorandum to the court, arguing that the aggravating factors in Israel’s case

justified a sentence of death. During the hearing, the court asked Clyde Wolfe,

defense counsel, if he intended to submit a memorandum:

      THE COURT:          Are you intending to submit [a memorandum] as
                          well, Mr. Wolfe?

      MR. WOLFE:          If I had to, it would be no later than Friday of next
                          week.

      THE COURT:          Why don’t I give you leave to do that. I’m not
                          sure I have—I haven’t read a memorandum yet,
                          but I was about to ask that Counsel provide me
                          with your memoranda, your analysis of
                          aggravating and mitigating factors.

Wolfe never filed a sentencing memorandum. Nor did he argue for life

imprisonment during the Spencer hearing.

      On May 28, 1999, the trial court sentenced Israel to death, finding four

aggravating circumstances: (1) Israel was previously convicted of another capital

felony or of a felony involving the use or threat of use of violence to a person; (2)

the crime was especially heinous, atrocious or cruel; (3) the crime was committed

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while the defendant was engaged in the commission of a sexual battery, burglary,

and kidnaping; and 4) the capital felony was committed for pecuniary gain.

      The court also assigned some weight to two statutory mitigating

circumstances: (1) Israel was under the influence of an extreme mental or

emotional disturbance at the time the crime occurred; and (2) the capacity of Israel

to appreciate the criminality of his conduct or to conform his conduct to the

requirements of the law was substantially impaired. Although the court expressly

considered the nonstatutory mitigating circumstances, it assigned them no weight.

      After an unsuccessful direct review of his conviction and sentence, Israel

began state postconviction proceedings. His amended Florida Rule of Criminal

Procedure 3.851 motion contained sixteen claims, among them the present issue on

appeal: whether Israel was denied effective assistance of counsel during the

sentencing phase. The state trial court denied the motion. On March 20, 2008, the

Supreme Court of Florida affirmed the trial court’s denial and simultaneously

denied Israel’s state habeas corpus petition. With regard to Wolfe’s failure to file a

sentencing memorandum, the court found no constitutional violation:

      [W]hile counsel’s failure in this regard may have been deficient, we
      do not find that Israel was prejudiced by counsel’s conduct. The
      sentencing order indicates that the court considered all of the evidence
      presented during the various proceedings. Further, the postconviction
      order notes that the court “heard and considered testimony presented
      at various stages of the proceedings going to non-statutory mitigators,
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      including Mr. Israel’s drug abuse, brain damage, low intellectual
      functioning as well as Mr. Israel’s character, background, record and
      other circumstances surrounding the offense,” but “[chose] to assign
      no weight to non-statutory mitigating circumstances.” The court
      independently weigh[ed] the mitigating and aggravating factors in
      determining whether to impose the death penalty.” Thus, counsel’s
      failure to file a sentencing memorandum did not result in prejudice to
      Israel.

See Israel v. State, 985 So. 2d 510, 518 (Fla. 2008) (per curiam) (alterations in

original). A rehearing was denied and the mandate issued on July 14, 2008. Israel

then began federal habeas proceedings.

      On March 27, 2012, the Middle District of Florida denied Israel’s 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. Although the district court found that

Wolfe performed deficiently when he failed to file the sentencing memorandum, it

concluded that this deficiency did not prejudice Israel. More precisely, the district

court found that the Supreme Court of Florida’s application of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was neither contrary to, nor an

unreasonable application of, federal law. The district court emphasized that the

sentencing court had the benefit of “hearing the [mitigating] evidence presented at

both the guilt and penalty phases and heard argument.” The sentencing court, as

was its prerogative, had “simply elected not to assign weight to the nonstatutory

mitigating circumstances.” The district court granted a certificate of appealability

on the Strickland claim, and this appeal followed.
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                          II. STANDARD OF REVIEW

      We review de novo the district court’s denial of a habeas corpus petition, but

accord deference to the state court’s decision on the merits of a claim. Davis v.

Jones, 506 F.3d 1325, 1331 (11th Cir. 2007).

      Israel’s petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), “which establishes a highly deferential standard for

reviewing state court judgments.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th

Cir. 2005) (internal quotation marks omitted); see 28 U.S.C. § 2254(d)(1). Under

AEDPA, a federal court may not grant habeas relief with respect to any claim

adjudicated on the merits in state court unless the state court’s adjudication:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

28 U.S.C. § 2254(d).

                                 III. DISCUSSION

      The touchstone for judging a Strickland claim is whether counsel’s

performance “so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S.


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at 686, 104 S. Ct. at 2064. A Strickland claim has two prongs: deficient

performance and prejudice, and a defendant must prove both to be successful. See

id. at 687, 104 S. Ct. at 2064. Because both parts of the test must be satisfied, an

insufficient showing on one part will settle the dispute. See Holladay v. Haley, 209

F.3d 1243, 1248 (11th Cir. 2000).

      To prove deficient performance, the defendant must show that his counsel

made an error so serious that he was not functioning as the counsel guaranteed by

the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

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

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

      We agree with the district court that Wolfe’s performance was deficient.

Appellee correctly notes that the Florida courts never determined whether Wolfe’s

errors rose to the level of a Strickland deficiency; the state courts merely assumed

a Strickland deficiency and dismissed on Strickland’s prejudice prong. Appellee

contends that Wolfe’s failure to file a sentencing memorandum was deficient only

if state law required him to file the document. We cannot agree. True, a Spencer

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hearing is a flexible, often informal procedure, but the Strickland standard is not a

rigid application of “mechanical rules.” Id. at 696, 104 S. Ct. at 2069. Instead, the

question is whether counsel made an objectively reasonable choice. See

Cummings v. Sec’y for Dep’t of Corrs., 588 F.3d 1331, 1356 (11th Cir. 2009)

(internal quotation marks omitted). It is certainly an unreasonable choice—when

the life of one’s client is on the line—to ignore the sentencing judge’s request for a

memorandum on mitigating circumstances.

      Nevertheless, we also agree with the district court that the Supreme Court of

Florida reasonably concluded that Wolfe’s negligently missed opportunity to

reiterate what the trial court already knew was not prejudicial under Strickland. In

other words, we conclude that the Supreme Court of Florida did not unreasonably

apply Strickland’s prejudice prong. See Borden v. Allen, 646 F.3d 785, 831 (11th

Cir. 2011) (internal quotation marks omitted), cert. denied, 132 S. Ct. 1910 (2012).

Israel is unable to point to any post-conviction evidence—or, for that matter, a

hypothetically persuasive construction of Dr. Krop’s testimony—that might have

found its way into Wolfe’s unwritten memorandum and changed the outcome of

Israel’s sentence. Thus, there is no indication that Israel’s sentencing was

fundamentally unfair, or that its end result is unreliable. See Lockhart v. Fretwell,




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506 U.S. 364, 372, 113 S. Ct. 838, 844 (1993); see also Jefferson v. Fountain, 382

F.3d 1286, 1298 (11th Cir. 2004).

      In light of the foregoing, we affirm the district court’s denial of Israel’s

petition for habeas corpus relief.

      AFFIRMED.




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