           Case: 14-15022    Date Filed: 04/27/2016    Page: 1 of 48




                                                                       [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 14-15022

                         ________________________

                 D.C. Docket No. 3:10-cv-00547-BJD-PDB


RONALD W. CLARK, JR.,

                                                 Petitioner - Appellant,


versus


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

                                                 Respondents - Appellees.

                         ________________________

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

                              (April 27, 2016)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

MARCUS, Circuit Judge:
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         In this capital case, Ronald Wayne Clark, a state prisoner in Florida

convicted of murder in the 1990 shooting and robbery of Ronald Willis, seeks a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The state trial court imposed a

sentence of death. The judgment was later upheld by the Florida Supreme Court

on direct appeal and again on collateral review. In this habeas petition, Clark

contends that his attorney was ineffective during the penalty phase of his trial, that

the sentencing court failed to consider mitigating evidence, and that the State

violated his due process rights by suppressing material impeachment evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court issued a

lengthy order denying all relief. Having carefully reviewed the record and after

taking oral argument, we affirm.

                                            I.

                                           A.

         The essential facts adduced at Clark’s trial revealed the following. On

January 13, 1990, two teenagers walking along a dirt road in rural Duval County,

Florida discovered checks with Ronald Willis’s name on them, a crow bar, false

teeth, and a bloody shirt. Suspecting some sort of wrongdoing, one of the

teenagers told his mother what they had found and she called the police. Officers

arrived at the scene and determined that it appeared to be the site of a violent

crime.
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      Alerted by Willis’s mother that the police had found these items, Willis’s ex-

wife, Debra Willis, and her sister-in-law, Sandra Hardee, began driving around

looking for Ronald Willis when they saw a truck that belonged to Willis parked in

front of the Oasis Motel. They approached the truck and began yelling, demanding

to know where Willis was. A man at the hotel pointed out Ronald Clark and John

David Hatch as the people who had driven the truck. Debra took the keys from the

truck and locked it as Hardee went to the motel’s office to call the police. While

making the call, she heard Debra call for help. Upon exiting the office she saw

Clark attack Debra, apparently trying to take the keys from her. After Debra

kicked him in the groin, Clark tried to run away. Hardee attempted to grab him,

but fell over. She noticed, however, that Clark was wearing Ronald Willis’s boots.

Clark and Hatch ran off before the police arrived. Later, Hardee and Debra

identified Hatch and Clark from photo spreads provided by Detective Jerry

Jesonek, who was investigating the matter.

      Hatch was arrested on January 20, 1990. In exchange for a twenty-five-year

prison sentence, he testified against Clark at trial. According to Hatch’s account,

on January 12, he and Clark had decided to walk or hitchhike to Jacksonville to

shoot pool. They brought with them a gun that Hatch had stolen from a house he

was remodeling. He testified that both he and Clark had been drinking and were

under the influence, but that they both knew what was going on around them.


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Willis stopped to give them a ride and, during the ride, Clark whispered to Hatch

that he planned to steal the truck when they stopped. Hatch asked Willis to stop

the truck so they could buy beer; both Hatch and Clark got out of the truck. Hatch

testified that as he walked toward the back of the truck, Clark fired the stolen gun

seven or eight times into the truck, shooting and killing Willis. Clark then turned

toward Hatch, pointed the weapon at him, and shouted that they had to go. They

got back into the truck and Clark drove away. Hatch was seated on the passenger

side, and Willis was slumped over in the middle, having been shot.

      Hatch and Clark drove to a secluded spot where Clark took Willis’s boots

and the money from his pockets, and together they rolled Willis’s body into a

ditch. Hatch and Clark then went to a restaurant and on to Hatch’s ex-wife’s

apartment, where they engaged in some sort of confrontation. Clark and Hatch

later retrieved the body, found cinder blocks in Clark’s parents’ house, tied the

cinder blocks to the body, and threw Willis off the Nassau County Sound Bridge

into the water below. Hatch said they went to an acquaintance’s home the next day

to buy drugs, before ending up at the Oasis Motel where the confrontation with

Debra and Hardee occurred. Hatch and Clark then fled the state, eventually

winding up in South Carolina.

      On cross examination, Clark’s attorney confronted Hatch three times with

inconsistent statements he had made on previous occasions. Most significantly,


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counsel confronted Hatch with remarks he had made to Detective Jesonek that he

had been urinating -- and not simply walking away from the truck -- when he heard

Clark shoot Willis. That statement was made on January 21, 1990, and was

memorialized in a document that now forms part of the basis of Clark’s Brady

claim.

         Detective Jesonek testified at some length about the homicide investigation.

Among other things, he took a statement from Hatch after his arrest on January 20,

which largely corresponded to Hatch’s trial testimony, although the statement

differed in describing where Hatch was when he heard the shots; it did not mention

Clark telling Hatch that Clark planned to steal the truck when they stopped; and it

made no mention of Clark having pointed the gun at him after the shooting.

Jesonek also testified about his efforts to convince Clark to return to Florida from

South Carolina. He said that during one conversation with Clark, Clark admitted

to having been involved in the shooting. After Clark was arrested by South

Carolina police and returned to Florida, Jesonek took Clark’s statement. The

statement was substantially the same as Hatch’s in detailing the events as they

transpired that night except that Clark said Hatch was actually the one who shot

Willis. In addition to this role reversal, Clark described where the bullets had

struck the victim’s body and how the victim physically moved upon being shot.

         Finally, the prosecution offered testimony from Officers Dolan Thomason


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and William Brown, who were both involved in transporting Clark during a

separate trial in Nassau County, Florida. Both officers unambiguously testified

that Clark admitted he killed Ronald Willis.

      Clark testified in his own defense. He averred that his statement to

Detective Jesonek naming Hatch as the shooter was the truth. In fact, he added, his

back was turned during the actual shooting, but he saw Willis’s wounds when they

dumped Willis’s body off the Nassau County Sound Bridge. He flatly denied

having told Officers Thomason and Brown that he had shot Willis. In closing

argument, Clark’s counsel argued that Hatch was the mastermind and triggerman

behind the crime. After deliberating for just under two and a half hours, the jury

returned a verdict finding Clark guilty of murder in the first degree, under a theory

of felony murder, and guilty of robbery with a firearm.

                                         B.

      During the penalty phase of the trial, the prosecution called Lieutenant

Charles Calhoun of the Nassau County Sheriff’s Office. Calhoun testified about

the details surrounding Clark’s previous Nassau County, Florida conviction for the

October 29, 1989 murder of Charles Carter. According to Calhoun, Clark, Carter,

Hatch, and another friend were driving around and Clark tried to get the group lost.

They eventually stopped in a wooded area on County Road 108 and exited the car.

Clark then shot Carter in the chest with a .12 gauge shotgun, and then shot Carter


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in the head, removed his boots, and rummaged through his pants, recovering about

$11. Clark was convicted and sentenced to death in Nassau County for that crime. 1

After the judgment and sentence from the Nassau County conviction were entered

into evidence, the prosecution rested.

       Clark’s counsel, Henry Davis, then asked for a sidebar. He told the trial

court that Clark did not wish to present any mitigating evidence to the jury and did

not wish to testify himself. The trial judge excused the jury and conducted the

following lengthy colloquy in open court:

               The Court: Mr. Davis, we were having a discussion at
                          the bench when you asked to approach the
                          bench and I just thought it better to go ahead
                          and ask the jurors to leave. Let’s go ahead
                          and start over.

               Davis:         All right. Your Honor, I just wanted to
                              advise the court that Mr. Clark has decided
                              not to exercise his right to testify here or to
                              present other evidence in mitigation. The
                              court may recall that Mr. Clark was seen by

1
  The Florida Supreme Court later overturned Clark’s death sentence for the murder of Charles
Carter after concluding that several aggravating factors had been improperly found. Clark v.
State, 609 So. 2d 513, 514–15 (Fla. 1992). In contrast, the mitigating evidence Clark offered
regarding his alcohol abuse, emotional disturbance, and abused childhood “constitute[d] strong
nonstatutory mitigation.” Id. at 515, 516. “Having found that only one valid aggravating
circumstance exists, and having considered the mitigation established by the record,” the Florida
Supreme Court concluded that the death penalty was “disproportionate when compared with
other capital cases where the Court has vacated the death sentence and imposed life
imprisonment,” and reduced Clark’s sentence to life imprisonment. Id. at 516. Notably, in Clark
v. State (“Clark II”), 35 So. 3d 880, 891 (Fla. 2010), the Florida Supreme Court said that its
decision to reduce Clark’s sentence was based on the absence of aggravating factors, not on any
finding that the trial court improperly rejected the mitigating evidence that had been presented or
that the mitigating evidence would have been sufficient to overcome the aggravating factors had
those factors been supported by the evidence.
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            two psychiatrists, Dr. Miller and Dr.
            [Barnard], and he was seen by Dr.
            [Macaluso] out of Tallahassee. They all
            submitted reports and he knows he can
            testify but he would like not to present that
            to the jury.

The Court: All right. Mr. Clark, will you please stand,
           sir? Mr. Clark, you understand, sir, that this
           is as much your hearing as it is their hearing,
           do you understand that?

Clark:      Yes, sir.

The Court: And do you understand what happened,
           what Mr. Davis said, is that correct, is that
           you position in the case?

Clark:      Yes, sir.

The Court: Okay. And have you had time to think
           about this and reflect on it and is this your
           desire not to call or present any testimony
           that Mr. Davis alluded do?

Clark:      Yes, sir.

The Court: In regarding to your own testimony, did you
           wish to testify in this matter and tell the
           jurors anything about yourself or your past
           or your background, or anything about
           yourself, or where were you planning to go
           from here? Is there anything you want to
           tell them?

Clark:      No.

The Court: You understand I would give you full
           opportunity to have your say if you want to
           have your say, that I will give you full
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            opportunity to say whatever you want to say
            at this time? I want to make it as clear to
            you as I can that this is as much your
            hearing as it is the State of Florida’s hearing.

Clark:      Yes, sir.

The Court: Do you understand that?

Clark:      Yes, sir.

The Court: Okay. And you are feeling all right today?

Clark:      Yes, sir.

The Court: Are you having any trouble thinking or is
           your reasoning good today?

Clark:      Yes, sir.

The Court: Okay. Are you under the influence of any
           drugs or alcohol, or anything like that?

Clark:      No, I didn’t take none today.

The Court: Okay. And you don’t want any of this
           testimony presented, and you, yourself, do
           not want to testify or speak to the jury?

Clark:      I don’t want the jury to know nothing. I
            want Mr. Willis to know that I did not kill
            Ronald Willis. That’s all I’ve got to say.

The Court: Okay. Well, you understand, Mr. Clark, that
           we are in a little different proceeding at this
           time than that.

Clark:      Yes, sir.



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             The Court: But this is your one and only opportunity
                        and I wanted to afford you every
                        opportunity that I could to say anything that
                        you wanted to say to these 12 people that are
                        going to make a recommendation to me and
                        you do seem to be very coherent and you
                        seem to have a good frame of mind in my
                        discussions with you here this morning, but I
                        wanted to afford you every opportunity that
                        I could to speak to these people if you so
                        wanted to.

             Clark:       I don’t want to.

             The Court: Okay. Well, that is your decision and I’m
                        certainly not going to force you or make you
                        do something you don’t want to do. I guess
                        this is something that you have thought
                        about, you and Mr. Davis. So, I just wanted
                        to make sure and satisfy myself that you
                        understood this proceeding that we are
                        having here today and that this was as much
                        your proceeding as it was the State’s, and I
                        would afford you to state anything you or
                        whatever you want to state if you so desired.

             Clark:       I don’t have anything to say.

      After defense counsel reiterated that it had no further evidence to present

during the penalty phase of the trial, the judge again returned to Clark:

             The Court: All right. At this time, Mr. Clark, I don’t
                        mean to be leaning on you but you realize I
                        wanted to just double check before we begin
                        the argument by the State and by Mr. Davis,
                        I wanted to ask you if you wanted to testify
                        or speak to the jury?

             Clark:       No, sir.
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             The Court: All right. I would state that I have talked to
                        Mr. Clark here this morning and I do find
                        that he is clear, lucid, and has a clear
                        understanding of these proceedings, and he
                        has elected not to speak on his behalf, but I
                        did want to give you a further opportunity if
                        you did.

      The penalty trial then moved to closing statements. The prosecution argued

that three aggravating factors were present: (1) Clark had previously been

convicted of another capital offense or a felony involving the use of violence to

some person; (2) the crime was committed while he was engaged in the

commission of a robbery; and (3) the crime was committed for financial gain. The

prosecution highlighted the similarities between Clark’s previous Nassau County

homicide conviction and the present crime.

      Davis, arguing on behalf of Clark, offered several different lines of attack.

First, he suggested that the evidence in the case was not clear cut, as demonstrated

by the two-and-a-half hours it took the jury to deliberate, and that Clark continued

to hold himself out as an accomplice to Hatch’s killing. He also argued that the

jury should consider that Hatch, whom he claimed was equally culpable, was

sentenced to only 25 years in jail and, therefore, the jury should consider giving

Clark an equivalent sentence. Finally, Davis claimed that the jury should consider

Clark’s youthful age -- he was 21 at the time of the murder -- and his possible

drunkenness as mitigating factors.
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         The trial judge instructed the jury that it could consider the three aggravating

factors argued by the prosecution, but that the second and third factors would

merge into one if the jury found them both. The judge also instructed the jury that

when considering mitigation, it could consider “any aspect of the defendant’s

character and any other circumstances of the offense including the age of the

defendant at the time of the crime.”

         After deliberation, the jury recommended by a vote of 11 to 1 that Clark be

sentenced to death.

                                                 C.

         Before sentencing Clark, the trial court held a Spencer hearing 2 pursuant to

Florida law, affording the parties a final opportunity to argue before the judge

whether the death penalty should be imposed. Although Clark had declined to

present any mitigation evidence to the jury, his counsel presented the trial judge

with a series of reports written by mental health professionals regarding Clark’s

2
    In Spencer v. State, 615 So. 2d 688, 690–91 (Fla. 1993), the Florida Supreme Court held:

         We contemplated that the following procedure be used in sentencing phase
         proceedings. First, the trial judge should hold a hearing 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.
         Second, after hearing the evidence and argument, the trial judge should then
         recess the proceeding to consider the appropriate sentence. If the judge
         determines that the death sentence should be imposed, then, in accordance with
         section 921.141, Florida Statutes (1983), the judge must set forth in writing the
         reasons for imposing the death sentence. Third, the trial judge should set a
         hearing to impose the sentence and contemporaneously file the sentencing order.
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troubled background. Testimony from the mental health experts regarding the

findings memorialized in those reports had previously been presented

unsuccessfully as mitigating evidence in Clark’s Nassau County trial.

      The reports presented Clark’s extensive history of familial abuse, chemical

dependency, and mental health issues. Dr. Miller’s report detailed Clark’s strained

relationship with his mother, including one instance when she “put a gun to his

head when he was 13 years old and told him that she felt he would be better off

dead and perhaps she would too.” Moreover, Clark reported being molested by his

mother’s female lovers on several occasions, including one brutal and sadistic

experience. Dr. Miller’s report also listed Clark’s previous criminal charges for

sexual battery, grand theft auto, and breaking and entering, and explained that

Clark’s only hobby appeared to be the abuse of drugs and alcohol. The report also

noted that Clark had previously attempted suicide. Dr. Macaluso’s report covered

much of the same ground, including the instances of child abuse. Dr. Macaluso

paid particular attention to Clark’s drug and alcohol use. Both of Clark’s parents

were alcoholics who engaged in extensive physical abuse toward each other.

When Clark lived with his father, he often went without food because his father

had instead spent all of his money on alcohol. Clark himself began drinking

alcohol at the age of five, was actively abusing alcohol by 15, and suffered from

alcoholic blackouts beginning at the age of 19. Clark began using drugs in the


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seventh grade. Finally, Dr. Barnard’s report included much of the same

information. His report also noted that Clark had reported attempting suicide by

cutting his wrists or overdosing on drugs some 20 to 30 times.

      The trial judge indicated that he had read the mental health reports submitted

by defense counsel. The two then engaged in the following colloquy:

            Davis:       Yes, sir. Thank you, Your Honor. I would
                         like to begin by asking the court to include
                         in its consideration the reports by Dr. Peter
                         [Macaluso], Dr. [Barnard], and Dr. Miller
                         which are in the court file.

            The Court: They are in the court file?

            Davis:       Yes, sir.

            The Court: I had remembered seeing some of those and
                       I remember reading them. I’m not sure I
                       read the doctor from Tallahassee.       I
                       remember reading Dr. [Barnard]’s and who
                       was the other one you said?

            Davis:       The report from Dr. Miller.

            The Court: I remember reading those. I don’t recall if I
                       read that one or not, but if it’s in the court
                       file then I will.

            Davis:       Yes, sir. I have a copy here, I could tender it
                         to the court.

            The Court: All right. Would you, please, and I will read
                       that between now and Friday.




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Davis explained that the reports contained extensive information about Clark’s

background, including his prolonged history of alcohol and substance abuse. The

judge also provided Clark with one final opportunity to speak on his own behalf.

Again, Clark declined.

      The judge sentenced Clark to a lifetime prison term for his armed robbery

conviction, to run concurrently with the murder sentence. The judge then observed

that he had “carefully studied and considered all of the evidence, the testimony at

trial and at the advisory sentencing proceeding, the applicable Florida statutes, the

case law, and all other factors touching upon this case.” Having considered both

the statutory and non-statutory mitigating circumstances, the judge found that they

were outweighed by the “great aggravating circumstances which exist to justify the

sentence of death.” Thus, the judge imposed a death sentence on Clark.

      In addition to making these observations, the judge issued a sentencing

opinion formalizing the defendant’s sentence. In that opinion, the court found as

aggravating factors Clark’s previous conviction for another capital felony, Fla.

Stat. § 921.141(6)(b), that the murder of Willis was committed during the

commission of a robbery, Fla. Stat. § 921.141(6)(d), and that the murder was

committed for pecuniary gain, Fla. Stat. § 921.141(6)(f). The opinion also found

no statutory mitigating factors were present. As for non-statutory mitigating

circumstances the court said only that “[t]here are no other aspects of Ronald


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Wayne Clark’s character or record, nor any other circumstances of the offense,

which would mitigate in favor of Ronald Wayne Clark or his conduct in this

matter.” The court made no specific reference to the three mental health experts.

The trial judge did observe, however, that “[t]he Court having considered both

statutory and non-statutory mitigating circumstances, finds that there are no

mitigating circumstances existing which would outweigh or outnumber the

statutory aggravating circumstances in this case.”

                                          D.

      Clark appealed his sentence to the Florida Supreme Court. He claimed the

trial court erred by (1) allowing him to waive the presentation of mitigating

evidence; (2) finding felony murder and pecuniary gain as separate aggravators;

(3) failing to properly consider the mitigating evidence and failing to find that

several mitigators had been established; (4) allowing hearsay testimony to establish

Clark’s prior conviction in Nassau County of first-degree murder; and, finally,

(5) imposing a death sentence disproportionate to his crime. Clark v. State (“Clark

I”), 613 So. 2d 412 (Fla. 1992). Only the third claim is relevant here. On that

issue, the Florida Supreme Court held:

             Clark also argues that the trial court erred by failing to
             consider the mitigating evidence properly and to find that
             several mitigators had been established. The record is
             clear, however, that the trial court considered the
             mitigating evidence, including the psychiatric reports as
             noted in the sentencing order.          The trial court
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             conscientiously performed its duty and decided that no
             mitigators had been established. The record contains
             competent, substantial evidence supporting the court’s
             conclusion that Clark’s death sentence is appropriate.

Id. at 414 (citations omitted). Florida’s high court also rejected each of Clark’s

other claims and affirmed his conviction and death sentence. Id. at 415. The

United States Supreme Court denied certiorari on October 4, 1993. Clark v.

Florida, 510 U.S. 836 (1993).

                                           E.

      On November 16, 1994, Clark began his collateral attacks, filing a motion to

vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.850. The

post-conviction court granted Clark an evidentiary hearing on several of his claims,

including his claim that the state had knowingly withheld exculpatory evidence

and/or presented misleading evidence. For reasons that are not reflected in the

record, no hearing was conducted and the case languished without any action for

several years.

      On June 20, 2003, Clark filed what he termed a Supplement to Amended

Motion to Vacate Judgments of Convictions and Sentences and, on September 8,

2005, the state court appointed attorney Harry Brody to represent Clark. With

leave of the court, Clark filed a new 3.850 motion raising 21 claims. The court

granted Clark an evidentiary hearing on three of them: (1) an alleged Brady

violation; (2) ineffective assistance of trial counsel for having failed to present
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mitigating evidence; and (3) ineffective assistance of counsel at the guilt phase of

trial. An evidentiary hearing was conducted on February 26, 2007. Clark’s

attorney called two witnesses, the first of whom testified to allegedly newly

discovered evidence that is not at issue today.

      Clark’s attorney then called Clark’s trial counsel, Henry Davis (by then a

state court judge), to testify about why he did not present any mitigating evidence

to the jury during the penalty phase. Davis offered that the primary reason he did

not present any mitigating evidence was that his client, Clark, instructed him that

he did not want any such evidence presented since he had been convicted of

homicide in Nassau County. Moreover, Davis believed that much of the mitigating

evidence cut both ways and could actually prove harmful to Clark. Davis said that

Clark had lived “the most traumatic painful life” he had ever encountered and the

strategy in the Nassau County trial had been to present all of the mitigating

evidence to the jury. But, in light of the death sentence recommended by that jury,

a strategy designed to present all of the mitigation clearly had not worked. Davis

concluded from the reaction of the jurors in Nassau County that the mitigating

evidence had precisely the opposite of its intended effect. Among the evidence

that Davis saw as cutting both ways was that, as a child, Clark tortured and killed

animals for sport; he super-glued cats’ eyes shut and threw the animals against

walls. The evidence also revealed that Clark had sexually abused children as a


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minor. Indeed, Davis’s investigation revealed that Clark’s pattern of violence

escalated as he got older.

      Moreover, although Davis thought that lingering doubt was not a valid

mitigating factor, he also believed that the jury might recommend life because the

evidence was “far from overwhelming.” While Davis acknowledged that

conceivably he could have presented mitigating evidence over Clark’s objection,

he did not believe it was strategically wise to do so.

      Clark again declined to testify on his own behalf at the collateral hearing,

although he told the court that he wanted his attorney to present evidence about

bloody clothes that had not been presented by his trial attorney. After the

evidentiary hearing, Clark filed a pro se motion with the court, which the court

construed as a motion to reopen the evidentiary hearing, because his counsel had

not presented evidence to support all of his claims. On September 24, 2007, the

court denied Clark’s pro se motion because he was then represented by counsel.

      On September 17, 2007, the state post-conviction court denied Clark’s

motion for post-conviction relief in its entirety. Among other things, for our

purposes, the court denied Clark’s Brady claim because he had made no showing

that the state had suppressed any of the allegedly exculpatory statements; indeed,

the evidentiary record indicated that the state had turned over the impeaching

statements made by Hatch. The court also denied Clark’s ineffective assistance of


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counsel claim, finding that the claim was procedurally barred because it had been

raised on direct appeal and, in any event, failed because Davis had made a

reasonable strategic decision not to present mitigating evidence. On appeal,

Clark’s attorney pressed only his ineffective assistance of counsel and newly

discovered evidence claims.

      During this time frame, Clark attempted to file a series of pro se motions,

including a motion for an extension of time to file a brief that included his Brady

claim, a motion to discharge his post-conviction counsel, and a motion to proceed

pro se. Each motion was stricken or denied by the Florida Supreme Court. The

Florida Supreme Court ultimately affirmed the trial court’s denial of Clark’s

motion for post-conviction relief. Clark v. State (“Clark II”), 35 So. 3d 880, 886

(Fla. 2010). As for the claim that defense counsel’s failure to present mitigating

evidence at the penalty phase amounted to ineffective assistance of counsel, the

court first found that the claim was procedurally barred because the Florida

Supreme Court had determined on direct appeal that Clark had made a knowing

and intelligent waiver of his right to present any mitigating evidence. Id. at 889.

And to the extent the claim was cognizable, the Florida Supreme Court applied the

Strickland standard and held that Clark’s counsel had not provided objectively

deficient performance, nor did the petitioner establish prejudice. Id. at 891.




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                                          F.

      Clark filed this petition seeking federal habeas relief in the United States

District Court for the Middle District of Florida on April 28, 2011, pursuant to 28

U.S.C. § 2254. He raised seven claims, three of which are now on appeal. The

district court denied habeas relief. Clark v. Sec’y, Fla. Dep’t of Corr., No. 3:10-

CV-547-J-39PDB, 2014 WL 4059131 (M.D. Fla. Aug. 14, 2014). First, the district

court dismissed Clark’s ineffective assistance of counsel claim because it was

procedurally defaulted. Id. at *19. The district court cited the Florida Supreme

Court’s determination that the claim could not be heard on post-conviction review

because it had already been denied on direct appeal. Id. In the alternative, the

district court concluded that the Florida Supreme Court had not unreasonably

applied Strickland when it found that counsel’s performance was neither deficient

nor had it caused Clark any prejudice. Id. at *23–25.

      The district court also rejected Clark’s claim that the trial court had failed to

properly evaluate, consider, find, and weigh mitigating evidence. Id. at *25–26.

Referencing the trial judge’s statements that he had considered all of the mitigating

factors, the district court found that the Florida Supreme Court had neither

unreasonably applied clearly established federal law, nor had it unreasonably found

the facts when it determined that the trial court considered the mitigating evidence

presented. Id. Finally, the district court denied Clark’s Brady claim. Id. at *28–


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31. Because Clark attempted to raise the matter pro se, the district court rejected

the argument that the claim was procedurally defaulted. Id. at *29. But the district

court denied Clark relief on the merits because he failed to establish that the

statements had been suppressed by the state, that they would have been material to

his defense, or that he would have been prejudiced had they actually been

suppressed. Id. at *31.

      The district court denied Clark a certificate of appealability. We granted a

certificate on three questions: whether the failure to present mitigating evidence

amounted to ineffective assistance of counsel; whether the trial court erred by

failing to consider mitigating evidence; and whether Clark’s due process rights

were violated under Brady.

                                          II.

                                          A.

      We review de novo a district court’s denial of federal habeas relief. Peterka

v. McNeil, 532 F.3d 1199, 1200 (11th Cir. 2008). No one disputes that the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Clark’s

habeas petition. Under AEDPA, if a petitioner’s habeas claim “was adjudicated on

the merits in State court proceedings,” a federal court may not grant relief unless

the state decision (1) “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United


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States,” or (2) “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). Under

§ 2254(d)(1)’s “contrary to” clause, we grant relief only “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.” Williams v. Taylor, 529 U.S. 362, 413

(2000). Under § 2254(d)(1)’s “unreasonable application” clause, we grant relief

only “if the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id. For § 2254(d)(1), clearly established federal law includes

only the holdings of Supreme Court decisions -- not Supreme Court dicta and not

the opinions of this Court. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

      The Supreme Court has explained that, to satisfy § 2254(d), “a state prisoner

must show that the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). The state court

need not cite or even be aware of Supreme Court precedent “so long as neither the

reasoning nor the result of the state-court decision contradicts them.” Early v.

Packer, 537 U.S. 3, 8 (2002). “[A]n ‘unreasonable application of’ [Supreme


                                          23
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Court] holdings must be ‘objectively unreasonable,’ not merely wrong; even ‘clear

error’ will not suffice.” Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade,

538 U.S. 63, 75–76 (2003)). In other words, Clark must establish that no

fairminded jurist would have reached the Florida court’s conclusion. See

Harrington, 562 U.S. at 103. And Clark must do so based only on the “record that

was before the state court that adjudicated the claim on the merits.” Cullen v.

Pinholster, 563 U.S. 170, 180 (2011).

      AEDPA also requires that we give state court factual findings great

deference. “[A] determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). “If [the AEDPA] standard is difficult to meet, that is because it was

meant to be.” Harrington, 562 U.S. at 102.

                                          B.

      Clark argues first that he received ineffective assistance of counsel because

his trial attorney did not present mitigating evidence to the jury during the penalty

phase. He claims that this decision was objectively unreasonable. Moreover, he

argues that, had the evidence been presented, there is a reasonable probability that

he would not have been sentenced to death. We are unpersuaded.




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      The State responds that Clark’s ineffective assistance of counsel claim is

procedurally barred from federal habeas review. The argument is based on the

Florida Supreme Court’s observation in Clark II that because the “claim was raised

on direct appeal and found to be without merit, it is procedurally barred from being

raised in postconviction proceedings.” Clark II, 35 So. 3d at 889. While that may

accurately recite state law, it does not work to procedurally bar claims on federal

habeas review.

      Indeed, controlling Supreme Court authority defeats this argument. The

Court explained in Cone v. Bell, 556 U.S. 449, 465 (2009), that the purpose behind

respecting a state procedural bar is to respect the state’s interest in correcting its

own mistakes -- an interest that is defeated when a petitioner fails to properly raise

the claim before the state court. But that consideration is not present when the

claim has been barred in state court because it has been presented twice:

             When a state court refuses to readjudicate a claim on the
             ground that it has been previously determined, the court’s
             decision does not indicate that the claim has been
             procedurally defaulted. To the contrary, it provides
             strong evidence that the claim has already been given full
             consideration by the state courts and thus is ripe for
             federal adjudication.

Id. at 467. This conclusion has been echoed many times by the Supreme Court and

this Court. See, e.g., Wellons v. Hall, 558 U.S. 220, 222 (2010); Williams v.

Alabama, 791 F.3d 1267, 1274–75 (11th Cir. 2015); Green v. Nelson, 595 F.3d


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1245, 1249 n.1 (11th Cir. 2010). Clark’s ineffective assistance of counsel claim is

not procedurally barred.

      Turning, then, to the merits, to succeed on his ineffective assistance claim,

Clark must establish both deficient performance and prejudice: he must show both

that “counsel’s representation fell below an objective standard of reasonableness,”

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

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

Washington, 466 U.S. 668, 688, 694 (1984); accord Wiggins v. Smith, 539 U.S.

510, 521 (2003); Darden v. Wainwright, 477 U.S. 168, 184 (1986). Moreover, we

do not apply Strickland de novo, but rather examine it through the prism of

AEDPA deference. 28 U.S.C. § 2254(d)(1). As the Supreme Court has noted,

“[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,’

and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at

105 (citation omitted (quoting Strickland, 466 U.S. at 689, and Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009)). Thus, under this doubly deferential

standard, “[t]he pivotal question is whether the state court’s application of the

Strickland standard was unreasonable.” Id. at 101; see also id. (“A state court must

be granted a deference and latitude that are not in operation when the case involves

review under the Strickland standard itself.”). And if, at a minimum, fairminded

jurists could disagree on the correctness of the state court’s decision, the state


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court’s application of Strickland was not unreasonable, and AEDPA precludes the

grant of habeas relief. Id.

      The Florida Supreme Court held that the performance of Clark’s trial

counsel was not unreasonable. This determination was neither contrary to nor an

unreasonable application of clearly established Supreme Court law. Davis’s

performance did not fall below an objective standard of reasonableness because he

reasonably determined that the mitigating evidence could cut both ways and thus

could have harmed his client as much as it could have helped him. Moreover,

having actually presented the same mitigating evidence once before in an earlier

capital case tried in Nassau County, and having watched the jury reject the

presentation and recommend a death sentence, counsel had sound reason, indeed,

to decide against presenting the same evidence again.

      We should add that there is no claim that Clark’s attorney failed to fully

investigate Clark’s difficult upbringing. Rather, Clark says only that, after

conducting a full investigation and presenting all of the evidence at his first trial,

his attorney erred by determining that the harmful evidence likely to be introduced

if he presented that evidence at the second trial outweighed its benefits. When

faced with such a double-edged sword, an attorney is called on to make an

informed strategic decision, one that we are loath to second-guess.




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      Our recent decision in Kormondy v. Secretary, Florida Department of

Corrections, 688 F.3d 1244 (11th Cir. 2012), supports this conclusion. There,

Kormondy was sentenced to death after presentation of evidence regarding his

unsettled and abusive upbringing along with his history of drug and alcohol abuse.

Id. at 1258. After the sentence was vacated and the case was remanded for

resentencing, Kormondy’s counsel declined to present mitigating evidence in an

apparent attempt to preempt the State from introducing rebuttal evidence. Id. at

1262–63. Kormondy engaged in a long discussion with the trial judge asserting

that he wanted to waive the presentation of such evidence. Id. at 1263–68. After

Kormondy was again sentenced to death, he nevertheless challenged his attorney’s

performance, claiming that he received deficient representation because his lawyer

failed to present mitigating evidence. Id. at 1280–81. We held that, given the

double deference due to the Florida Supreme Court’s decision under Strickland and

AEDPA, Kormondy was not entitled to relief. Id. at 1283–84. In particular, we

observed that evidence of drug and alcohol abuse as well as evidence of a difficult

and impoverished upbringing were “two-edged sword[s]” that might “provide[]

independent basis for moral judgment by the jury.” Id. at 1283.

      The considerations weighing against presentation of mitigating evidence in

Clark’s case are even stronger than in Kormondy’s. Here, trial counsel testified at

the evidentiary hearing about the breadth of the defendant’s cruel and violent


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behavior that would likely have been presented to the jury had he sought to present

evidence of Clark’s abusive childhood. The evidence included that Clark tortured

and killed animals for sport, super-glued cats’ eyes shut, threw animals against

walls, sexually abused children, and reportedly enjoyed hurting people. The

Florida Supreme Court did not unreasonably conclude that Clark’s attorney made a

reasonable strategic decision.

      Further, just like the attorney in Kormondy, Clark’s counsel had the benefit

of seeing how the presentation of this evidence would affect a trial jury because he

had unsuccessfully presented the same evidence to the jury in Clark’s previous

murder trial in Nassau County. That the death penalty in the first case was later

overturned on appeal is of no moment because that decision was not handed down

until after the trial at issue here. Indeed, Strickland instructs us that we must

“eliminate the distorting effects of hindsight” in order to “evaluate the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. At the time

counsel acted, there was nothing unreasonable about the decision.

      Moreover, Clark’s counsel did not render deficient performance when he

followed his client’s clear and explicit instructions not to present mitigation

evidence to the jury. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1244 (11th

Cir. 2010) (holding that petitioner had not shown counsel was ineffective for

failing to present mitigating evidence where client instructed counsel not to present


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evidence and, in counsel’s independent judgment, presentation of such evidence to

the jury would have harmed client). Here, there is no dispute that Clark told Davis

he did not want to present mitigating evidence. The trial judge engaged in lengthy

and repeated colloquies with Clark in order to discern with clarity the defendant’s

wishes. The trial judge concluded that Clark clearly understood the proceedings

and, despite having the opportunity to do so, elected not to present mitigating

evidence or testify on his own behalf. In light of this clear instruction, we cannot

find that Clark’s counsel performed deficiently by declining to present mitigation

evidence to the jury. Clark’s ineffective assistance of counsel claim fails on the

first Strickland prong.

                                         C.

      Even if we look past Clark’s failure to show that his trial counsel rendered

deficient performance, he is unable to establish prejudice from the failure to

present mitigating evidence to the jury, let alone that the Florida Supreme Court’s

determination that he was not prejudiced was unreasonable. Again, we can

discount the probability that the jury here would have recommended that Clark not

be sentenced to death even had the mitigating evidence been offered because, faced

with that same mitigating evidence, the jury in Clark’s Nassau County case

recommended the death penalty. Moreover, the aggravators in this case include

the unchallenged finding that the murder was committed during the commission of


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a robbery and, even more powerfully, that Clark had previously been convicted of

another capital felony committed under strikingly similar circumstances. While it

is possible that a different jury in a different county would have reached a different

result when presented with the same mitigating evidence, Clark has made no

persuasive argument as to why it is reasonably probable. In sum, we cannot find

that the Florida Supreme Court unreasonably applied Strickland when it concluded

that Clark was not prejudiced by his counsel’s failure to present mitigating

evidence at the penalty phase.

                                              III.

       Clark claims next that his rights were violated because the sentencing judge

failed to consider the mitigating evidence his attorney presented during the Spencer

hearing. The Florida Supreme Court rejected this claim too on direct appeal,

finding that “[t]he record is clear . . . that the trial court considered the mitigating

evidence, including the psychiatric reports as noted in the sentencing order. The

trial court conscientiously performed its duty and decided that no mitigators had

been established.” Clark I, 613 So. 2d at 414. Clark is unable to overcome the

Florida Supreme Court’s finding of fact. 3


3
 The precise standard for reviewing state court factual findings in habeas proceedings is
somewhat murky. Section 2254(d)(2) instructs that habeas relief may be granted where the state
court decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Section 2254(e)(1), meanwhile, commands that “a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
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       The United States Supreme Court has held that the Eighth and Fourteenth

Amendments require that a sentencer not be prohibited from considering as

mitigation “any aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence

less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett

v. Ohio, 438 U.S. 586, 604 (1978)). The trial court may determine the appropriate

weight to be afforded such mitigation, but it may not exclude such evidence, as a

matter of law, from consideration altogether. Id. at 114–15. As we have

explained, however, the Constitution “does not dictate the effect that must be given

once the evidence is considered; it does not require the sentencer to conclude that a

particular fact is mitigating or to give it any particular weight.” Schwab v. Crosby,

451 F.3d 1308, 1329 (11th Cir. 2006). All that is forbidden is for sentencing courts

to give mitigating evidence “no weight by excluding such evidence from their

consideration.” Eddings, 455 U.S. at 115 (emphasis added). Thus, our

consideration is “completed once it is established that a full hearing was conducted

in which appellant’s counsel was given an opportunity to present all of the


convincing evidence.” “The interaction between (d)(2) and (e)(1), which appear to articulate
different standards for reviewing state factual findings, is an open question in this circuit.”
Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1294 n.4 (11th Cir. 2015). The Supreme
Court has repeatedly declined to rule on how, exactly, these two provisions interact, see
Brumfield v. Cain, 135 S. Ct. 2269, 2282 (2015); Wood v. Allen, 558 U.S. 290, 300–01 (2010),
and our sister circuits have split on the proper interpretation, see Wood, 558 U.S. at 299 n.1.
Because Clark does not meet even the arguably more forgiving § 2254(d)(2) standard, we need
not address the interaction between them here.
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mitigation evidence.” Baldwin v. Johnson, 152 F.3d 1304, 1323 (11th Cir. 1998)

(quoting Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984)).

      Here, Clark does not argue that he was denied the opportunity to present

mitigating evidence. Rather, he contends that the sentencing judge erred because

he failed to consider the evidence. He points to the judge’s sentencing document,

which made no express reference to the reports counsel had submitted detailing

Clark’s childhood and addiction issues. Clark argues that this omission collides

with the Florida Supreme Court’s requirement that “the sentencing court must

expressly evaluate in its written order each mitigating circumstance proposed by

the defendant to determine whether it is supported by the evidence and whether, in

the case of nonstatutory factors, it is truly of a mitigating nature.” Campbell v.

State, 571 So. 2d 415, 419 (Fla. 1990) (footnote omitted).

      Of course, a violation of state law is not sufficient to entitle a petitioner to

federal habeas relief. 28 U.S.C. § 2254(d)(1) (predicating habeas relief on a

violation of “clearly established Federal law, as determined by the Supreme Court

of the United States”). And, indeed, we have previously held that the failure to

reference non-statutory mitigating circumstances in a sentencing report is an

insufficient basis to entitle a federal habeas petitioner to relief. Card v. Dugger,

911 F.2d 1494, 1522 (11th Cir. 1990); Johnson v. Wainwright, 806 F.2d 1479,

1484 n.8 (11th Cir. 1986) (collecting cases).


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      Nor do we see any other basis to award Clark habeas relief on this claim.

The Florida Supreme Court was not unreasonable -- let alone did it commit clear

error -- when it found as a fact “that the trial court considered the mitigating

evidence, including the psychiatric reports as noted in the sentencing order.” Clark

I, 613 So. 2d at 414. For one thing, the trial court said that it had considered all of

the relevant information for sentencing. Parker v. Dugger, 498 U.S. 308, 314

(1991) (“We must assume that the trial judge considered all this evidence before

passing sentence. For one thing, he said he did.”); accord Baldwin, 152 F.3d at

1324; Johnson, 806 F.2d at 1484. Moreover, the judge’s wording that it found no

mitigating factors that “outweigh or outnumber the statutory aggravating

circumstances in this case” is better understood as a conclusion that follows

appropriate consideration rather than as evidence that no consideration was

undertaken at all. See Parker, 498 U.S. at 318. Clark has not undermined or

rebutted the state court’s fact finding.

                                           IV.

      Clark also claims that the prosecutor violated his due process rights by

suppressing exculpatory or impeachment material in violation of Brady v.

Maryland, 373 U.S. 83 (1963). In particular, he points to the alleged suppression

of three statements. Although an evidentiary hearing on this issue and others was

held by the state post-conviction court, Clark’s attorney did not present any


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evidence in support of the claim that the prosecution had suppressed any of these

statements. On this basis, the post-conviction court denied Clark’s Brady claims.

Clark’s post-conviction counsel failed to appeal the denial of Clark’s Brady claim

to the Florida Supreme Court. Clark did, however, file a pro se motion in state

circuit court and before the Florida Supreme Court seeking to re-open the

evidentiary hearing or otherwise raise the issue. These motions were all stricken or

denied. The Florida Supreme Court did not consider Clark’s Brady claim.

                                        A.

      Because the Florida Supreme Court did not consider this issue, we are

required to determine first whether we are procedurally barred from considering it

on federal habeas review. The Supreme Court described the procedural bar

doctrine this way:

            Federal habeas courts reviewing the constitutionality of a
            state prisoner’s conviction and sentence are guided by
            rules designed to ensure that state-court judgments are
            accorded the finality and respect necessary to preserve
            the integrity of legal proceedings within our system of
            federalism.     These rules include the doctrine of
            procedural default, under which a federal court will not
            review the merits of claims, including constitutional
            claims, that a state court declined to hear because the
            prisoner failed to abide by a state procedural rule. A
            state court’s invocation of a procedural rule to deny a
            prisoner’s claims precludes federal review of the claims
            if, among other requisites, the state procedural rule is a
            nonfederal ground adequate to support the judgment and
            the rule is firmly established and consistently followed.
            The doctrine barring procedurally defaulted claims from
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              being heard is not without exceptions. A prisoner may
              obtain federal review of a defaulted claim by showing
              cause for the default and prejudice from a violation of
              federal law.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012) (citations omitted).

      Here, while we know the Florida Supreme Court struck Clark’s pro se

motions to raise his Brady claims, the record does not reflect the basis on which

those motions were stricken. A review of the Florida Supreme Court’s docket

sheet online reveals only that the motions were “stricken as unauthorized” but

provides no more detail than that. The State argues that Florida’s high court

followed a firmly established and regularly applied rule that a party on post-

conviction appeal does not have the right to file pro se motions while represented

by counsel.

      Clark argues, however, that he did everything he could to present his claims

through the appellate process. Before both the post-conviction court and the

Florida Supreme Court, Clark attempted to file a series of pro se motions,

including a motion for an extension of time to file a brief that included his Brady

claim, a motion to discharge his post-conviction counsel, and a motion to proceed

pro se. Clark also wrote repeatedly to his post-conviction counsel demanding,

among other things, that his lawyer preserve all meritorious claims for federal

review. By doing so, Clark argues, he took every step he reasonably could have



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taken to exhaust his claims and avoid the procedural bar the State now asks this

Court to impose.

      There has been no showing that the rule barring death-sentenced defendants

from proceeding pro se in post-conviction collateral proceedings before the Florida

Supreme Court was firmly established at the time Clark’s case was before that

court. To be sure, the Florida Supreme Court had previously held that appellants

are not entitled to present their own appeals pro se while represented by counsel on

direct appeal. Davis v. State, 789 So. 2d 978, 981 (Fla. 2001). And after Clark’s

appeal was settled, the Florida Supreme Court announced that it would apply the

Davis rule to cases on post-conviction review. Gordon v. State, 75 So. 3d 200, 201

(Fla. 2011). But the State has referred us to no Florida Rule of Appellate

Procedure, no published internal operating procedure in the Florida Supreme

Court, and no state court opinion extant at the time Clark’s case was decided that

forbade the filing of a pro se brief in Clark’s circumstances.

      At oral argument in this Court, the State relied on the Florida Supreme

Court’s holding in Logan v. State, 846 So. 2d 472 (Fla. 2003), as firmly

establishing the rule procedurally barring Clark’s claim. But the case does nothing

of the sort. Instead, the court in Logan wrote:

             We therefore dismiss the subject petitions as
             unauthorized and take this opportunity to announce that
             in the future, we will not entertain pro se extraordinary
             writ petitions from criminal defendants seeking
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             affirmative relief in the context of pending trial court
             criminal cases, where it is clear from the face of the
             petitions that the petitioners are represented by counsel in
             the pending criminal proceedings and the petitioners do
             not clearly indicate that they are seeking to discharge
             counsel in those proceedings.

Id. at 479 (emphasis added). This rule does not speak at all to the situation

presented in Clark’s case. Clark did not have a pending trial court criminal case;

rather, he sought to present issues to the Florida Supreme Court in concert with a

post-conviction case then pending in that court. At the time Clark’s case was

decided, we can find no firmly established rule prohibiting defendants from filing

pro se motions with the Florida Supreme Court while represented by counsel in

post-conviction collateral proceedings.

      Nor has the State presented us with any authority supporting its view that the

rule barring represented prisoners from filing pro se motions with the Florida

Supreme Court on collateral review has been consistently followed. Indeed, all of

the Florida Supreme Court cases the State cites relate to direct appeals or other

inapposite circumstances. See Sheppard v. State, 17 So. 3d 275 (Fla. 2009)

(holding that defendant cannot file a pro se extraordinary writ with the Florida

Supreme Court while simultaneously being represented by counsel in an ongoing

lower court proceeding); State v. Tait, 387 So. 2d 338, 339 (Fla. 1980) (holding

that a defendant does not have the right to represent himself at trial while also

enjoying the assistance of counsel). The State has not cited any case decided
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before its decision in Gordon where the Florida Supreme Court followed a clearly

established practice of denying defendants leave to file motions pro se where they

are represented by counsel on collateral review. We are, therefore, required to

address Clark’s Brady claims on the merits.4

                                              B.

       The Supreme Court has long held that “the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady, 373 U.S. at 87. A Brady claim has three

components: “[1] The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; [2] that evidence must have

been suppressed by the State, either willfully or inadvertently; and [3] prejudice

must have ensued.” Allen v. Sec’y, Florida Dep’t of Corr., 611 F.3d 740, 745–46

(11th Cir. 2010) (alterations in original) (quoting Strickler v. Greene, 527 U.S.

263, 281–82 (1999)). “The prejudice or materiality requirement is satisfied if

‘there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’” Id. at 746

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The crucial question

on that point is “whether the government’s evidentiary suppressions, viewed

4
 In this procedural posture, we review the merits of Clark’s Brady claim de novo. Blanco v.
Sec’y, Fla. Dep’t of Corr., 688 F.3d 1211, 1240 n.69 (11th Cir. 2012).
                                              39
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cumulatively, undermine confidence in the guilty verdict.” Id. (citing Kyles v.

Whitley, 514 U.S. 419, 434, 436–37, & n.10 (1995)).

      Clark first says that the State suppressed Hatch’s January 21, 1990 statement

to Nassau County Detective Jesonek. In that written statement taken shortly after

Hatch’s arrest, Hatch claimed to be “taking a leak” when Clark shot Willis; he

never mentioned that Clark told him of his plan to take Willis’s truck; and he did

not mention that Clark pointed a gun at him after shooting Willis. In contrast, in

his trial testimony, Hatch testified that Clark shot Willis while Hatch was walking

toward the back of the truck; that Clark whispered to Hatch that he planned to steal

the truck when they stopped; and that after shooting Willis, Clark turned toward

Hatch with the gun pointed at him and shouted that they had to go.

      At an evidentiary hearing called to address the Brady issue, Clark’s attorney

elicited no testimony that Clark’s trial counsel had not received Hatch’s sworn

statement to the police. Thus, we have nothing other than Clark’s ipse dixit

assertions to support finding that the prosecution suppressed material exculpatory

or impeachment material. In fact, the evidence available in the record establishes

the opposite: that the prosecution provided Clark with Hatch’s statement. The

record reflects that in the State’s March 8, 1990 response to a demand for

reciprocal discovery, the prosecution provided Clark with a “[w]ritten statement of

Defendant Hatch.” Even more damning to Clark’s claim, his trial counsel cross-


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examined and impeached Hatch using the very same statement. The record reflects

the following colloquy between Davis (Clark’s counsel) and Hatch:

               Davis:     Now, in fact, you have stated earlier that you
                          got out of the truck, you walked some place
                          and you were in the process of urinating
                          when you heard the gun fire, is that correct?

               Hatch:     That was my intention.

               Davis:     Well, you have stated, have you not, that
                          you were, in fact, in the process of
                          urinating?

               Hatch:     I was on the way to.

               Davis:     Do you remember being interviewed by
                          Detective Jesonek?

               Hatch:     Yes, sir.

               Davis:     Didn’t you tell him that you were urinating
                          at the time that you heard the shots?

               Hatch:     I don’t remember if I said I was or I was in
                          the process of it. I was not using the
                          restroom at that time.

Moreover, during the testimony of Detective Jesonek, the prosecutor introduced

into evidence Hatch’s January 21, 1990 written statement and had Detective

Jesonek read it into the record. Davis registered no surprise and interposed no

objection indicating that he had previously been unaware of the statement. There

is simply no reason to find that the statement had been suppressed by the

prosecution.
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      Next, Clark claims that the State suppressed a May 9, 1990 report from

prison officer Jeanette Sares that Hatch had threatened to kill Clark. According to

the report, “David Hatch did threaten to kill inmate Ronald Clark, Hatch told us

that he would ‘do it’ right in front of an officer, also that he would break Clark’s

neck.” Clark alleges that this statement shows great animosity between Hatch and

Clark, and that it too could have been employed to impeach Hatch’s motivations

for testifying against Clark. Just as with the allegedly suppressed written

statement, however, Clark’s post-conviction counsel failed to elicit any testimony

(or make any other showing) at the evidentiary hearing that Clark’s trial attorney

had not received this statement. In the absence of any evidence that the

prosecution suppressed this statement, we cannot conclude that Clark’s Brady

rights were violated.

      Finally, Clark claims that the State suppressed Hatch’s statement to State

Attorney Howard Maltz on June 27, 1990, that he and Clark did not bury Willis’s

body because they were “too drunk to hold a shovel.” This would have

contradicted Hatch’s trial testimony that while he and Clark had both been

drinking and were under the influence on the night of the murder, they both knew

what was going on around them. Again, Clark’s post-conviction counsel failed to

elicit any testimony or make any other evidentiary showing that Clark’s trial

attorney had not received this statement. And still again, in the absence of


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evidence, we cannot find that the prosecution suppressed any Brady material.

Indeed, an additional response to Clark’s demand for discovery from the State on

July 5, 1990, indicates that the prosecution turned over the “[s]worn statement of

John David Hatch.” That this disclosure followed the date of Hatch’s statement so

closely suggests a reasonable likelihood that Hatch’s statement to State Attorney

Maltz was disclosed to Clark.

                                          C.

      Finally, to the extent Clark claims he should be granted an evidentiary

hearing on his Brady claim, his argument fails because he has not met the statutory

threshold for granting a hearing. AEDPA provides that:

             If the applicant has failed to develop the factual basis of a
             claim in State court proceedings, the court shall not hold
             an evidentiary hearing on the claim unless the applicant
             shows that--

             (A) the claim relies on--
                    (i) a new rule of constitutional law, made
                   retroactive to cases on collateral review by the
                   Supreme Court, that was previously unavailable;
                   or
                   (ii) a factual predicate that could not have been
                   previously discovered through the exercise of due
                   diligence; and

             (B) the facts underlying the claim would be sufficient to
             establish by clear and convincing evidence that but for
             constitutional error, no reasonable factfinder would have
             found the applicant guilty of the underlying offense.



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28 U.S.C. § 2254(e)(2). Clark cannot show that the factual predicate for his claim

could not have been previously discovered through the exercise of due diligence.

Indeed, an evidentiary hearing was granted on this very topic. Due diligence at

that hearing would have led to the discovery of whatever evidence existed in

support of this claim. He is also unable to establish that no reasonable factfinder

would have found him guilty of the underlying offense had the allegedly

suppressed statements been presented at trial.

      Clark argues, nevertheless, that he is not required to meet § 2254(e)(2)’s

stringent requirements because he was diligent in pursuing this claim, even if his

attorney was not. He cites Burgess v. Commissioner, Alabama Department of

Corrections, 723 F.3d 1308, 1319–20 (11th Cir. 2013), for the principle that where

a petitioner has been diligent in developing the factual record, § 2254(e)(2) does

not apply and the district court’s denial of an evidentiary hearing is reviewed for

abuse of discretion. Passing over the question of whether Clark’s pro se efforts

constitute diligence in the face of his counsel’s abandonment of the claim, the

district court did not abuse its discretion in denying Clark an evidentiary hearing

because, even if the state prosecutor had suppressed Hatch’s statements, the

differences between Hatch’s trial testimony and his allegedly suppressed

statements are not material. Clark would not, therefore, be entitled to federal




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habeas relief. Under either standard, Clark is not entitled to an evidentiary hearing

on his Brady claim.



      The long and short of it is that Clark has failed to show that the Florida state

courts based their decisions on unreasonable applications of clearly established

federal law or unreasonable determinations of the facts. Accordingly, we affirm.

      AFFIRMED.




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MARTIN, Circuit Judge, concurring in judgment:

      I agree with the majority’s holding that Mr. Clark is not entitled to relief on

his ineffective assistance of counsel claim. The Florida Supreme Court’s decision

regarding counsel’s performance was not an unreasonable application of clearly

established federal law as determined by the U.S. Supreme Court. See 28 U.S.C. §

2254(d). It is the majority’s ruling on the prejudice prong of Mr. Clark’s

ineffective assistance of counsel claim, however, that causes me to write

separately. To prevail on an ineffective assistance of counsel claim, a habeas

petitioner must show both that his counsel’s performance was deficient and that

counsel’s deficient performance prejudiced him. See Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Our panel is in agreement that

Mr. Clark failed to carry his burden on the performance prong of the showing

required by Strickland. Since I view the question of whether Mr. Clark was

prejudiced by his counsel’s performance as a close one, I would have preferred that

the panel not reach that question.

      I would have avoided analysis of the prejudice prong of Strickland’s

required showing here because I have questions about the Florida Supreme Court’s

ruling that Mr. Clark was not prejudiced when his lawyer failed to present any

mitigation evidence to the jury during the penalty phase of his trial. In challenging

a death sentence, a petitioner establishes prejudice by showing that “there is a


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reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Id. at 695, 104 S. Ct. at 2069.

      As set out in the majority opinion, Mr. Clark had two capital murder trials.

In the first of these trials, in Nassau County, Florida, Mr. Clark presented

mitigation evidence of his alcohol abuse and emotional disturbance, together with

the emotional and sexual abuse he experienced as a child. See Clark v. State, 609

So. 2d 513, 515–16 (Fla. 1992). In the appeal of his Nassau County conviction,

the Florida Supreme Court characterized Mr. Clark’s evidence as “strong

nonstatutory mitigation.” Id. at 516. Of course precisely the same mitigation

evidence of Mr. Clark’s alcohol abuse, emotional disturbance, and the sexual abuse

he endured as a child exists in this case arising out of Duval County, Florida.

Nevertheless on postconviction review of Mr. Clark’s Duval County conviction,

the Florida Supreme Court said that he was not prejudiced by the failure to present

the very same mitigating evidence. See Clark v. State, 35 So. 3d 880, 891 (Fla.

2010).

      A reviewing court applying Strickland’s prejudice standard must consider

the potential effect of the unpresented mitigating evidence on the sentencing jury.

See Porter v. McCollum, 558 U.S. 30, 41–43, 130 S. Ct. 447, 454–55 (2009) (per

curiam). I recognize that the reweighing of aggravating and mitigating evidence


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involves many factors and that the aggravating circumstances in Mr. Clark’s Duval

County trial may have been more powerful than those in his Nassau County trial.

After all, the Duval County jury knew about Mr. Clark’s Nassau County murder

conviction. Still, I am mindful that even though the Duval County jury heard no

mitigating evidence, it was not unanimous in recommending a sentence of death.

Knowing that one juror voted for a life sentence for Mr. Clark even without

hearing any of his “strong nonstatutory mitigation” evidence suggests to me that

had such evidence been presented, more jurors may have voted for life. Because

of the peculiarities of the prejudice question here, I would not have reached that

issue. Nevertheless, I agree with the majority that this record does not entitle Mr.

Clark to federal habeas relief.




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