             Case: 12-15132     Date Filed: 01/15/2014   Page: 1 of 54


                                                                         [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         __________________________

                                No. 12-15132
                         __________________________

                      D.C. Docket No. 2:08-cv-00083-RWS

WILLIAM EMMETT LECROY, JR.,

                                                             Petitioner - Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent - Appellee.

                         __________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        __________________________

                                (January 15, 2014)

Before TJOFLAT, HULL, and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge:

      William Emmett LeCroy, Jr. is a federal death-row inmate. In 2004, he was

convicted in the Northern District of Georgia of taking a motor vehicle by force

from Joann Lee Tiesler, resulting in her death. See 18 U.S.C. § 2119(3) (2010).
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LeCroy was sentenced to death, and this court affirmed his conviction and sentence

on direct appeal. United States v. LeCroy, 441 F.3d 914 (11th Cir. 2006), cert.

denied 550 U.S. 905 (2007). LeCroy then petitioned the District Court to vacate

his sentence pursuant to 28 U.S.C. § 2255 (2010). The court, after holding a three-

day evidentiary hearing, denied his petition. United States v. LeCroy, Nos. 2:02-

CR-38-RWS-SSC, 2:08-CV-2277-RWS, 2012 WL 1114238 (N.D. Ga. Mar. 30,

2012). LeCroy now appeals that ruling. His claim is that he was denied the

effective assistance of counsel during the penalty phase of his trial in violation of

the Sixth Amendment. 1 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d (1984). After reviewing the record and the parties’ briefs, and

after hearing oral argument, we affirm the judgment of the District Court.



       1
          The Sixth Amendment provides, in relevant part, that “In all criminal prosecutions, the
accused shall . . . have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
        Pursuant to 28 U.S.C. § 2253(c)(1), the District Court issued a certificate presenting for
appeal the following claims of ineffective assistance of counsel:
        Mental Health Case:
        1. Failure to adequately investigate and present a mental health case;
        2. Failure to conduct and present an adequate and comprehensive mitigation
investigation and present character witnesses who were properly prepared;
        3. Failure to proffer Petitioner’s teaching expert testimony which would have allowed
the District Court to rule on the scope of the Government’s rebuttal evidence and on whether the
Government was entitled to evaluate Petitioner;
        4. Failure to make an effective penalty phase closing argument regarding mitigation
evidence actually presented.
        Instruction on Future Dangerousness: failure of counsel to object to the instruction
regarding claimed future dangerousness because of the “risk” of escape.
        Instruction on balancing of aggravating and mitigating sentencing factors: failure to
object to the District Court’s failure to instruct the jury that before imposing the death penalty, it
must find beyond a reasonable doubt that the aggravating factors outweighed the mitigating
factors presented by the defense.
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                                          I.

      The basic facts of the crime for which LeCroy was convicted and sentenced

have never been in dispute: on October 7, 2001, LeCroy broke into the home of

Joann Tiesler, raped and murdered her, and fled in her car to the Canadian border,

where he was arrested two days later. But because evaluating LeCroy’s § 2255

claim requires an understanding of his life and background, we begin in Subpart A

with a sketch of LeCroy’s biography up to the murder, then describe the murder

and his arrest. Subpart B deals with LeCroy’s attorneys, their investigation of the

case, and their strategic choices heading to trial. Subpart C recounts the events at

trial, and Subpart D describes the § 2255 proceedings in the District Court.

                                         A.

      LeCroy was born in 1970 in Marietta, Georgia, to William Emmett LeCroy,

Sr., and Donna Houston. At seventeen, shortly after his parents divorced, he

joined the United States Army. Stationed in Hawaii, LeCroy went absent-without-

leave and lived on the streets of Honolulu, supporting himself by breaking into

homes to steal food. He was arrested in 1989 and discharged from the Army.

Then nineteen years old, LeCroy moved back in with his mother—who had since

married Sam Houston, a former police partner of LeCroy’s father—in Cobb

County, Georgia, just northwest of Atlanta.




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         While living with his mother and stepfather, LeCroy began a sexual

relationship with one of Sam Houston’s two daughters, Alecia, who was just shy of

her fourteenth birthday. The family discovered the relationship in January, 1990,

when Alecia’s mother—Sam Houston’s ex-wife—found a note written by Alecia

to a friend detailing her sexual encounters with LeCroy. Alecia’s mother reported

the incident to the police and urged local authorities to charge LeCroy with

statutory rape.

         Meanwhile, the Cobb County police were investigating a string of burglaries

that occurred between late 1990 and early 1991. The police identified LeCroy as a

suspect and arrested him on March 3, 1991, following a traffic stop. Police found

a gun in LeCroy’s car along with several handwritten notes. 2

         LeCroy was first convicted in state court for aggravated assault, burglary,

child molestation, and statutory rape. As he was serving his sentence for those

crimes, he was convicted in federal court for possession of a sawed-off shotgun,

which he had obtained in one of his burglaries. He served an additional five years

in federal prison for that offense. In total, he was incarcerated for just over ten

years.



         2
          One of the notes described a plan to “rob cars and kill people driving so the car can be
used two or three days.” Another note appeared to list steps for avoiding apprehension:
“burglarize house,” “flee and switch cars,” “be ruthless and famous,” “rape rob and pillage.” A
third note was titled “H-L” and contained a list of names. Police believed “H-L” stood for “hit
list,” and the names were people LeCroy wanted to kill.
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         LeCroy was released from federal prison in August 2001 and subject to a

three-year term of supervised release. He moved back in with his mother and Sam

Houston, who had since relocated to Blue Ridge, Georgia, in the mountains south

of the Tennessee border. LeCroy was required to undergo a psychosexual

evaluation as a condition of supervised release, but LeCroy left the evaluation

prematurely. His probation officer warned that if he refused the evaluation he

risked being sent back to prison, so LeCroy agreed to return to complete the

evaluation in late October.

         Later, at trial, the Government would contend that LeCroy never intended to

make good on this agreement to submit to the evaluation. LeCroy was, according

to his increasingly concerned stepfather, spending time alone in his room on the

computer. Investigators determined the computer was used to search for survival

gear, and to scan and copy Sam Houston’s passport. Investigators also found a

“need to acquire” list written on the back of the letter scheduling LeCroy’s original

evaluation; the list included binoculars, boots, gloves, guns, ammunition, food, and

water.

         LeCroy’s mother and stepfather went away for the weekend on October 5,

leaving LeCroy alone in their cabin. That weekend there was a series of robberies

in the neighborhood, including the theft of medical supplies, a shotgun, and

ammunition.

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      On the evening of October 7, LeCroy broke into Joann Tiesler’s home

through a bedroom window, armed with a shotgun, a knife, and plastic cable ties.

LeCroy made sure to return the open window blinds to their original position, so

that from the outside Tiesler’s house appeared undisturbed. Tiesler, a nurse, had

been away for the weekend visiting her fiancé in Rome, Georgia. She returned

home around 6:00 p.m.

      As Tiesler entered her home, LeCroy approached from behind and struck her

on her head with the butt of his shotgun, causing the gun to discharge in the

hallway outside her bedroom. LeCroy bound Tiesler’s hands behind her back with

the plastic cable ties. LeCroy stripped her and raped her vaginally and anally.

After that, he strangled her with an electrical cord, slashed her throat with his

knife, and stabbed her five times in the back before wiping the knife off on her

shirt. LeCroy left Tiesler’s house and drove away in her car. A real-estate agent

and one of Tiesler’s coworkers discovered her body the next day, naked and bound

on her bed.

      LeCroy was arrested on October 9, 2001, two days after Tiesler’s murder.

He was captured at the border between Minnesota and Canada, still driving

Tiesler’s car. Inside the car, police found a knife covered in Tiesler’s blood and

plastic cable ties like those used to bind Tiesler’s wrists. A note found in the car

read, “Please call the police and report this vehicle as stolen. Thanks, The Thief.”

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A second note, written on the back of a map, read “Please please please forgive me

Joanne [sic]. You were an angel and I killed you. Now I have to live with that and

I can never go home. I am a vagabond and doomed to hell.”

                                                B.

       On May 15, 2002, a Northern District of Georgia grand jury indicted LeCroy

for taking a motor vehicle by force, violence, and intimidation from Joann Tiesler,

resulting in her death. See 18 U.S.C. § 2119(3). A superseding indictment, dated

August 13, 2002, added special death-eligibility allegations. LeCroy was

appointed a team of lawyers from the Northern District of Georgia Federal

Defender Program: Paul Kish, Stephanie Kearns, and Brian Mendelsohn. 3 Later, a

fourth attorney—Daniel Summer—was appointed as local counsel from the

Gainesville area, where the trial would be held.4 The attorneys agreed that Kish

and Summer would focus on the guilt phase of trial, while Kearns and Mendelsohn

would focus on the penalty phase.



       3
          Kish began practicing in 1982, and joined the Federal Defender Program in 1985. At
the time of trial, Kish was the Deputy Director of the Federal Defender Program. Kearns
received her law degree in 1975 and had spent her whole legal career doing federal criminal
defense work. At the time of trial, Kearns was Executive Director of the Federal Defender
Program. LeCroy’s was her second federal death penalty case. Mendelsohn received his law
degree in 1990 and worked at an organization providing postconviction representation to death
row inmates in Georgia before joining the Federal Defender Program in 1995.
        4
          Summer had substantial criminal law experience, including a Georgia death penalty
trial. The other attorneys agreed he was particularly helpful during jury selection, when he was
able to explain “the churches that people went to, what significance that had or where they lived,
that sort of thing.” Collateral Tr. Vol. I at 87.
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      With the help of two investigators, Susan Miller and Michael Hutcheson, the

defense attorneys gathered extensive records of LeCroy’s background. They

gathered school records, military records, records relating to LeCroy’s earlier

criminal convictions, prison records, and police reports relating to Tiesler’s

murder. The attorneys delivered all these records to Doctor Michael Hilton, a

forensic psychiatrist the attorneys hired on March 27, 2003, to conduct an

evaluation of LeCroy. Paul Kish testified at the § 2255 hearing that the public

defender’s office “quite often used [Hilton]” to conduct these sorts of evaluations.

Collateral Tr. Vol. I at 14. As Paul Mendelsohn later testified, the attorneys never

planned to call Doctor Hilton as a witness at trial; his evaluation was, instead, to be

a “test run” so that the defense team could see what a psychiatric evaluation of

LeCroy would reveal before making any final strategic judgments: “[T]he idea

behind Dr. Hilton was to see what would happen, what kind of results we would

get in an evaluation if we just did a straight evaluation. . . . [W]e were going to

see what results he came back with, and then with that information in hand,

proceed with the rest of the case.” Collateral Tr. Vol. II at 265.

      Doctor Hilton met with LeCroy in prison for four and a half hours, and

prepared a set of reports for defense counsel. One report related Doctor Hilton’s

conclusion that LeCroy was competent and that he could not present an affirmative

defense of not guilty by reason of insanity. Another report summarized Doctor

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Hilton’s psychiatric evaluation of LeCroy, reflecting Doctor Hilton’s diagnoses

and professional observations.

      During the evaluation, LeCroy told Doctor Hilton about his troubled

upbringing. His parents’ marriage had been an unhappy one: his father—William

LeCroy, Sr.—was verbally abusive toward his mother, a “loving, gentle, timid

woman.” Hilton Report at 3. The two eventually divorced, and one year later

LeCroy’s mother married Sam Houston.

      LeCroy told Doctor Hilton that when he was eight years old he had sexual

encounters with a female babysitter he knew as “Tinkerbell.” LeCroy and his

brother played a “kissing game” with her: they would run up to her, kiss her, and

then run away. One night, Tinkerbell came into LeCroy’s bedroom and told him

that he needed to “know how to do it right,” and began kissing him, undressing

him, and performing oral sex on him. A week later, Tinkerbell again molested him

and the two may have had intercourse. The day after that, however, LeCroy

attempted to visit Tinkerbell—who lived in an apartment above the LeCroys’

apartment—and discovered her coming down the stairs arm-in-arm with a

boyfriend. Tinkerbell gave LeCroy what he called a “malevolent” smile. The

LeCroy family moved a week later, and he never saw Tinkerbell again or told his

family what happened.




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      Turning to Tiesler’s murder, LeCroy described the crime to Doctor Hilton in

lurid detail. After being released from federal prison in August 2001 and moving

in with his mother and Sam Houston in Blue Ridge, Georgia, LeCroy began

commuting by motorcycle to the town of Marietta, where he worked with his

father. He passed Joanne Tiesler’s house every day and the two would usually

wave to each other. In early October 2001, LeCroy—convinced that the

government was determined to put him back in prison—traveled out into the

woods, where he had hidden a cache of survival gear.

      On his way to check up on his cache in the woods, LeCroy passed Tiesler’s

house and waved to her. She did not wave back. Later, at his hiding spot in the

woods, LeCroy heard the sound of car tires on gravel and turned to see Tiesler

driving toward him in a sport-utility vehicle. LeCroy told Doctor Hilton that

Tiesler stopped, said “Huh!” through her half-open driver’s side window, and then

turned her vehicle around and drove away.

      LeCroy’s brief interaction with Tiesler in the woods apparently disturbed

him a great deal. He began to dwell on Tiesler, until his thoughts turned to the

possibility that Tiesler was, in fact, Tinkerbell, the babysitter who had sexually

abused him as a child. LeCroy began to suspect that Tinkerbell had been a witch

and that her sexual abuse had placed him under some kind of spell, and that in turn

this spell explained all the troubles and frustrations in his life. He reasoned that if

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Tiesler—by now synonymous with Tinkerbell—had placed some kind of sexual

spell on him, she could also be made to undo that spell. As Doctor Hilton related

it, “[LeCroy] started to develop a plan that he needed to reverse the roles on

Tinkerbell and do to her what she had done to him.” Hilton Report at 10.

      Because the contents of Doctor Hilton’s report came to play a crucial role

both in the defense attorneys’ thinking and in LeCroy’s subsequent ineffective

assistance claim, we reprint here an illustrative excerpt of the report:

      Mr. LeCroy went back to Ms. Tiesler’s house and went inside to wait
      for her. He then heard a car drive up. He became nervous. He
      looked out the window and saw that it was some of Ms. Tiesler’s
      neighbors arriving at the cabin next door. He continued to wait and
      was quite nervous. He used her restroom. He urinated and defecated
      in the toilet. As he was coming out of the bathroom, he heard another
      vehicle coming. He went into her bedroom and could hear her
      approaching the cabin. As she came in, he saw her and struck her in
      the back of the head with the gun. The shotgun accidentally
      discharged, shooting into the wall. She fell on the floor. He told her
      not to look at him. He also, however, had the collar of his combat
      uniform pulled up over the bottom part of his face and the back of the
      collar pulled up around the back of his head over the top of his head,
      so that only his eyes were exposed. He said the conversation was
      minimal. He told her several times, “You know what I want.” She
      questioned him about the possibility of wanting money, and he told
      her he did not want her money. He used the plastic ties that he
      brought with him to tie her hand [sic] together. He then tied her legs
      together. As he started undoing her belt, she asked him, ‘Is this what
      this is?’ He did not say anything. She cooperated with him as he took
      her pants down. She stated only, ‘Not on the floor.’ Mr. LeCroy
      picked her up and put her on the side of the bed. He said his penis
      was too soft to penetrate her. He asked for some Vaseline. She told
      him where it was. He put some Vaseline on his penis and on her
      vagina. He was then able to penetrate her and immediately developed
      an erection. During the act, they were both silent. After he climaxed,
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       he told her it was her turn to “undo it.” She questioned him about
       what he meant. He told her she knew. They argued a little bit. He
       told her, “I'm getting pissed off.” She was trying to appease him, but
       was not complying with his demands. He did not know what she had
       done the first time (when he was a child). He put a new shotgun shell
       in his shotgun and threatened her, yet she still did not comply. He
       then found a cord from a carbon monoxide monitor and looped it
       around her neck. He told her to “do it or else,” but she did not know
       what to do. He started choking her to the point that she could not
       breathe. She started gasping. She grabbed at his pants legs. He heard
       her start to urinate and defecate on herself. He then let go of the cord
       and said, “That’s it.” He told her, “You can do it or I’ll do it.” At that
       time, she was only making mumbling sounds. He pulled his knife out
       of its sheath, grabbed her head by her hair from behind, pulled her
       head back and cut her throat as hard as he could. She went limp
       immediately, but he could still hear breathing sounds. He became
       frustrated that she would not die. He started to think, “I can’t kill this
       woman.” He walked out of the bedroom and looked out the window
       to see if anyone was around. He was planning to go back into the
       bedroom and shoot her in the back of the head with both barrels of the
       shotgun, but when he went into the bedroom, she was not making any
       sounds. She was dead.

Hilton Report at 10–11.

       As LeCroy’s defense team considered their options in light of Doctor

Hilton’s report, they were operating in the shadow of Rule 12.2(b) of the Federal

Rules of Criminal Procedure, which requires a defendant to notify the Government

in advance of trial if the defendant plans to introduce expert testimony on mental

health issues at either the guilt or penalty phase of trial. 5 Rule 12.2 further



       5
          See Fed. R. Crim. P. 12.2(b) (“If a defendant intends to introduce expert evidence
relating to a mental disease or defect or any other mental condition of the defendant bearing on
either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must—
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provides that if a defendant elects to introduce expert evidence bearing on a mental

health issue, the defendant must make the results and reports of the defendant’s

expert available to the Government, and the defendant himself may be required to

submit to an evaluation by a Government expert.6 See Fed. R. Crim. P. 12.2(c).

       Having seen Doctor Hilton’s report, the attorneys unanimously agreed they

were, as Mendelsohn put it, “very scared of [a] government evaluation.” Collateral

Tr. Vol. II at 159. In short, Mendelsohn said, the defense team “made a decision

not to have [LeCroy] evaluated and stuck with that all the way through.” Id. at

172. Nonetheless, the attorneys recognized that some information in Doctor

Hilton’s report would be useful in mitigation: the evidence of childhood sexual

abuse, specifically, might both arouse sympathy from the jury and offer a

mitigating explanation of LeCroy’s crime. The trick was finding a way to

introduce the mitigating aspects of LeCroy’s background without also opening the

door to the wealth of aggravating information in Doctor Hilton’s report.




within the time provided for filing a pretrial motion or at any later time the court sets—notify an
attorney for the government in writing of this intention . . . .”).
        6
          Rule 12.2 serves both efficiency and fairness purposes in criminal trials. It implicates
fairness because it alerts the Government to a defendant’s intention to introduce expert mental-
health evidence, thereby giving the Government a chance to prepare its own mental-health
evidence in rebuttal. This, in turn, implicates efficiency in the courts because the preparation of
mental-health evidence frequently requires the use of expensive and time-consuming experts.
Early notice and reciprocity, then, motivate the Rule 12.2 requirement. See generally Charles
Alan Wright & Andrew D. Leipold, Federal Practice and Procedure: Criminal § 205 (4th ed.
2008).
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      The attorneys developed a plan to introduce Doctor David Lisak as a

“teaching expert” on the relationship between childhood sexual abuse and

criminality in men. Doctor Lisak, a clinical psychologist and Associate Professor

of Psychology at the University of Massachusetts in Boston, was known to the

attorneys as perhaps the nation’s preeminent expert on childhood sexual abuse of

males. Instead of evaluating LeCroy himself—and thereby triggering the

reciprocity provisions of Rule 12.2—Doctor Lisak was to review a documentary

record of LeCroy’s life, drawn from his state prison records, his pre-sentence

report from the 1995 federal conviction, his counseling records from prison, and

Doctor Hilton’s report. In front of the jury, Doctor Lisak would explain that

individuals who experience childhood sexual abuse experience significant

psychological problems later in life, and that these problems can be especially

acute in men who are abused as children, leading to an elevated risk of later

criminal behavior.

      Doctor Lisak’s testimony would thereby provide a backdrop for the jury,

against which the defense lawyers hoped to introduce evidence of LeCroy’s

childhood abuse. Doctor Gary Ganahl, a psychological consultant for the Georgia

Department of Corrections who evaluated LeCroy in prison following a suicide

attempt, had been told by LeCroy about physical abuse at the hands of his father

and sexual abuse by a female babysitter. Similarly, Doctor Marti Carlson—a

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clinical psychologist from the federal Bureau of Prisons—had also seen LeCroy

when he was incarcerated and heard him report physical abuse by his father and

sexual abuse by a female babysitter. Finally, the defense retained Jan Vogelsang, a

clinical social worker, to conduct wide-ranging social and psychological evaluation

of LeCroy and his family. Vogelsang would testify that aspects of LeCroy’s

childhood put him at special risk of criminality as an adult, including a history of

mental illness in his family, a troubled relationship with his father, and a generally

dysfunctional family environment.

      By combining Doctor Lisak’s “teaching” testimony with the factual

testimony of Vogelsang and doctors Ganahl and Carlson, the defense team hoped

to replicate the helpful aspects of Doctor Hilton’s report—that is, the inference that

LeCroy’s crime was the product of an abusive and dysfunctional childhood, or as

Kearns put it more bluntly: “That Mr. LeCroy was damaged goods because of what

he suffered in his childhood and that that might explain why he would do

something so awful,” Collateral Tr. Vol. I at 96—without triggering Rule 12.2’s

requirement that LeCroy be evaluated by a Government expert. Kish explained

that the strategy was to “have the teaching expert [i.e., Doctor Lisak] talk with the

jury about what happens when a person has been the subject of childhood sexual

abuse, and in that fashion avoid having to make Mr. LeCroy available for a

government examination.” Collateral Tr. Vol. I at 45–46. Mendelsohn explained

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that the lawyers themselves could then “draw inferences from what we got out of

Dr. Lisak and the facts that we put into the record to then argue it to the jury.”

Collateral Tr. Vol. II at 159.

      The defense team’s teaching-expert strategy became the subject of intense

pre-trial wrangling with the Government. On October 17, 2003, LeCroy gave

notice pursuant to Federal Rule of Criminal Procedure 12.2(b) that he intended to

introduce an expert regarding mental health. The Government moved for a

psychiatric examination of LeCroy, and Magistrate Judge Susan S. Cole granted

that motion on November 10, 2003. LeCroy appealed, and defense counsel met ex

parte with District Judge Richard W. Story to contest the Government’s right to an

independent evaluation. Judge Story ordered a compromise: the Government

would appoint a team of “firewalled” attorneys to address only the mental-health

issues in LeCroy’s trial, and these firewalled attorneys would not disclose any

mental-health evidence to the primary prosecution team. Judge Story ordered the

firewalled attorneys and the defense team to confer regarding the need for the

Government to conduct an independent evaluation.

      The firewalled attorneys ultimately argued that they did need an independent

mental evaluation of LeCroy, and Judge Story agreed after a hearing on December

22, 2003, that the Government was entitled to such an evaluation under Rule 12.2.

The defense complied with an order to give a list of mental-health experts they

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planned to use to the firewalled attorneys, but argued that there was no need for the

Government to conduct a full examination of LeCroy because their own expert—

Doctor Lisak—would be testifying only as a teaching expert, without himself

having conducted an evaluation of LeCroy. The Government objected, and Judge

Story agreed that because LeCroy planned to present expert evidence regarding

childhood trauma, “thereby inviting the jury to make conclusions about how

Defendant’s childhood trauma may have impacted him and could impact him in

the future,” that the Government was entitled to its own evaluation by its own

expert, Doctor Julie Medlin. That examination never happened, however, because

LeCroy—following his lawyers’ advice—invoked his Fifth Amendment right

against self incrimination 7 and refused to submit to the Government evaluation.

       Judge Story nevertheless reserved a final ruling on whether Doctor Lisak

would be allowed to testify as a teaching witness. Before trial, the arrangement

was that Doctor Medlin would review the mental-health evidence otherwise

available through discovery and prepare a written mental-health opinion under

seal. At the close of the guilt phase of trial, the report would be released to defense

counsel and to the firewalled prosecutors, at which point the defense team could

make a decision about whether to introduce Doctor Lisak’s testimony at



       7
        The Fifth Amendment provides, in relevant part, that “[n]o person shall . . . be
compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
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sentencing, in which case the Medlin report would be released to the primary

prosecution team.

                                          C.

      LeCroy’s trial began on February 17, 2004. Faced with overwhelming

evidence that LeCroy had killed Tiesler, the defense attorneys seized upon a

botched-burglary defense at the guilt phase of the trial: they argued that LeCroy

merely planned to rob Tiesler’s home, but panicked when she caught him in the act

and murdered her on impulse. As Kish put it to the jury in his guilt-phase closing

argument, the whole episode was not a carjacking but “an irrational criminal act in

the middle of a burglary.”

      The botched-burglary defense was jurisdictional: the case was only in

federal court because the Government had charged LeCroy with carjacking, which

in turn required the Government to prove that LeCroy killed Tiesler with the intent

of taking her car. See 18 U.S.C. § 2119; see also Holloway v. United States, 526

U.S. 1, 12, 119 S. Ct. 966, 972, 143 L. Ed. 2d 1 (1999) (“The intent requirement of

§ 2119 is satisfied when the Government proves that at the moment the defendant

demanded or took control over the driver’s automobile the defendant possessed the

intent to seriously harm or kill the driver if necessary to steal the car.”) (emphasis

added); United States v. Applewhaite, 195 F.3d 679, 686 (3d. Cir. 1999). If the

defense could instead convince the jury that the crime had been a robbery gone

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bad—that LeCroy had panicked upon being discovered in Tiesler’s house and

impulsively killed her, and only later formed the intent to take her car as a means

of escape—then the federal jurisdictional hook would be absent and LeCroy would

evade a federal conviction. 8 LeCroy’s jurisdictional argument was unsuccessful,

and the jury found LeCroy guilty on March 1, 2004, but the botched-burglary

theory of the case would continue to play a role in the defense team’s calculations

as the case proceeded to sentencing.

       At the sentencing phase of the trial, the Government’s case-in-chief

consisted of victim-impact evidence from Tiesler’s family and friends, testimony

relating to LeCroy’s convictions in the early 1990s, and testimony regarding

LeCroy’s conduct while incarcerated. Of special relevance was testimony from

two Lumpkin County law-enforcement officials who had witnessed LeCroy escape

from his cell in the Lumpkin County Detention Center. Officer Aaron Welch, a

Lumpkin County detention officer, testified that in 2003 LeCroy (and other

inmates) were using a catwalk in the Detention Center’s drop ceiling as a “virtual

highway” between male and female cells. Officer Christopher Holman of the

Lumpkin County Sheriff’s Office testified that in one incident two female inmates


       8
          LeCroy would, of course, have been vulnerable to a state prosecution even if he were
acquitted of the federal carjacking charge, but his attorneys’ immediate concern was avoiding the
federal conviction. As Kish testified at the § 2255 evidentiary hearing, “if we had won the
jurisdictional challenge, then the case was definitely going to be going to Gilmer County. But
what we were tasked to do was to try to win the federal case, the matter directly in front of us.”
Collateral Tr. Vol. I at 54.
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were found under a bed in LeCroy’s cell. In a separate incident, Holman inspected

LeCroy’s cell and found that LeCroy had created a hole in the shower wall that

was large enough for a man to sneak through. In the crawlspace, they found a note

written on the wall: “So well, have a great day explaining to the Marshals about

me. Thanks for the food, . . . smokes, and women, LeCroy. P.S. Had a great time

here but sorry I won’t miss you.”

      After the Government rested, LeCroy called a variety of mitigation

witnesses to rebut the suggestion that LeCroy had been a threat to others in prison

or that he had attempted to escape. Some of the witnesses had been incarcerated

with LeCroy and testified that he had been pleasant and peaceful. A retired Bureau

of Prisons official, Donald Romine, testified as an expert on the security of federal

prisons and said that a person convicted of LeCroy’s crimes would be held in a

maximum security facility from which escape would be especially difficult.

      The defense attorneys had, by this time, decided not to call Doctor Lisak as a

teaching expert. They had been given a copy of Doctor Medlin’s report at the

conclusion of the guilt phase of trial, and concluded after reviewing the report that

calling Doctor Lisak would only initiate an unhelpful battle of experts between

Doctor Lisak and Doctor Medlin. Before presenting other mental health evidence,

the defense team sought clarification from the Judge Story about what questions




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could be put to LeCroy’s former psychiatrists 9 about LeCroy’s mental health.

Judge Story ruled that the witnesses were permitted to testify about fact matters

related to them in meetings with LeCroy, but could not testify about psychological

testing, results, diagnoses, or opinions without triggering Doctor Medlin’s

testimony in rebuttal.

       LeCroy subsequently called Doctor Gary Ganahl, who testified that he met

with LeCroy in 1992 after LeCroy attempted suicide in state prison. Doctor

Ganahl said that LeCroy related a troubled childhood, including sexual abuse by a

female babysitter. Doctor Marti Carlson, who saw LeCroy in federal prison, also

testified and also related that LeCroy had told her about having a troubled

childhood and about being molested as a child by a female babysitter.

       LeCroy also called a series of friends and family to testify about his good

character. His mother, Donna Houston, took the stand, but given her emotional

state, was unable to go forward with her testimony. She then said that she had

informed Jan Vogelsang about LeCroy’s early life and her marriage to LeCroy’s

father and had nothing to add. She did ask the jury for mercy.

       Vogelsang testified at length about her interviews with LeCroy’s friends and

family, which she compiled as part of what she called a “biopsychosocial”



       9
         The former psychiatrists had examined and in some instances had treated LeCroy while
he was incarcerated in state and federal prisons.
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assessment. 10 Beginning with LeCroy’s father, LeCroy, Sr., Vogelsang testified

that he grew up in “a family that was without limits and without boundaries; and

this was more in the area of gambling, the areas of money and the areas of the

ready availability of weapons.” Several family members demonstrated suicidal

behavior and the children were poorly supervised. Within the extended family,

“cousins continued to have sex with each other, to engage in sexual behaviors that

sometimes were almost right in front of their parents with nothing being said.”

The male members of LeCroy, Sr.’s family were particularly dismissive of women,

saying that “if it weren’t for sex, women would have a bounty on their heads.”

       With his own family, LeCroy, Sr. was highly controlling and often abusive.

He was particularly controlling of LeCroy’s mother, frequently interrogating her

about her whereabouts and the possibility that she was unfaithful to him. Their

divorce was, Vogelsang said, particularly terrible: LeCroy, Sr. threatened to rape

and kill LeCroy’s mother and kill her coworkers. After an episode in which

LeCroy, Sr. put his gun to Donna Houston’s forehead, he gave his gun to LeCroy

to keep him from killing her.

       According to Vogelsang, LeCroy joined the Army to escape his fractured

home life. Early in his military career, however, LeCroy broke his ankle, scuttling


       10
          Vogelsang defined this as a “method of collecting extensive information on an
individual and/or his family. Typically [the report] covers at least three or four generations” of a
family.
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his dream of becoming a paratrooper. Stationed in Hawaii, he began drinking and

taking drugs before going absent-without-leave, getting arrested, and taking a

discharge. After returning home, LeCroy began a sexual relationship with his step-

sister Alecia after his brother, Chad, began a sexual relationship with their other

step-sister, Priscilla. Finally, Vogelsang listed a set of factors she believed made it

more likely for someone of LeCroy’s background to commit serious crimes.

      On cross-examination, Vogelsang said her report covered LeCroy’s

background up to 1991 and did not include the time of Tiesler’s murder.

Vogelsang testified that LeCroy did well in school, that no member of LeCroy’s

immediate family remembered a female babysitter named Tinkerbell or knew that

LeCroy had been molested, and that after his release from federal prison in 2001,

LeCroy’s mother and father opened their homes to him and tried to facilitate his

reentry to society.

      Kearns delivered the closing argument in mitigation. About sexual abuse,

Kearns said:

              And, again, I think if you look at his history, what you see and
      what—the family history, what Jan Vogelsang and what Dr. Carlson, I
      think, more importantly shows to you is that you have someone who
      has a basic moral fiber. His entire childhood through that divorce he
      was a good kid. He was doing well in school. He sought out ROTC,
      it’s in the writings, he seeks out ROTC because it gives him
      something that he is missing, those boundaries that Jan Vogelsang
      described there were a lack of. He seeks it out on his own. He knows
      that ROTC is healthy for him, it has discipline, it builds his self-

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       esteem, the self-esteem that is in the pits. And you know he has
       virtually no self-esteem.
               And what does he attribute that to? The baby-sitter, to the
       sexual abuse he suffered as a child. And the government may—Mr.
       Burby made a big deal yesterday of one of the witnesses about he
       never described the child molestation to anybody. He didn't tell
       anybody.
               His family didn’t know about it.
               Come on, this is 2004. You know, we all watch TV. If we
       haven’t read books about it, why do we have all these priests that are
       now being accused of sexual abuse for things they did 20 years ago?
       Because children don’t talk about it. For whatever reasons, whatever
       happens. That doesn’t mean it didn’t happen.
               Why would he be talking about sexual abuse by a teenager
       while he’s in therapy with Dr. Carlson? He’s not in therapy to get out
       of jail. He’s not in therapy to cut his sentence short. He has no
       benefit to gain from the therapy or the [Drug Abuse Program]
       program that he was involved in El Reno except self-improvement or
       to relieve himself, learn how to deal with his anger and get beyond his
       anger so that his life will be better emotionally. There’s no motive to
       lie about the baby-sitter. And he’s talking about the baby-sitter in ‘92
       and he’s talking about the baby-sitter in ‘99. But it’s a significant
       event because it robbed him of his self-esteem. That’s the impact it
       had on him. We know that from what he’s written.

Trial Tr. at 2715–16.

       The jury returned a death sentence on March 10, 2004.11 LeCroy filed a

motion for a new trial on March 17, 2004, and the District Court denied that


       11
           The jury found that all of the eligibility factors, and all of the statutory and
nonstatutory aggravating factors, existed. The eligibility factors were that LeCroy intentionally
killed Tiesler and intentionally inflicted serious bodily injury that resulted in her death. The
statutory aggravating factors were that LeCroy committed the murder in an especially heinous,
cruel, and depraved manner, and that LeCroy committed the crime after substantial planning and
premeditation. The nonstatutory aggravating factors were that LeCroy would be a future danger
to the lives and safety of others, and that LeCroy caused injury, harm, and loss to the victim’s
family. See Trial Tr. at 2766–67. By statute, a jury need only find one statutory aggravator to
impose the death penalty. See 18 U.S.C. § 3593(e) (2010).
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motion on October 12 of the same year. On October 25, LeCroy appealed his

conviction and sentence to this court, and we affirmed on March 2, 2006. See

LeCroy, 441 F.3d at 931.

                                                D.

       On April 22, 2008, LeCroy petitioned the District Court to vacate his death

sentence pursuant to § 2255, asserting—as relevant to this appeal—that he had

been denied the effective assistance of counsel at trial. 12 The claim LeCroy

presented has two elements.


       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose


         The jury also found the following mitigating factors: that LeCroy’s conduct was
appropriate during his ten years in prison, that LeCroy was subjected to emotional and physical
abuse as a child, that he grew up in an unstable and violent environment, that he had been
exposed to a harsh and difficult prison life, that he was a kind and loving grandson, son, brother,
and friend, that he had shown himself to be a person capable of kindness, friendship, and
generosity, that he was deeply tormented after his fiancé got an abortion, that in prison he had
helped other inmates and participated in counseling, that he would likely do well in a prison
environment, that executing him would cause his family grief, and that he spent the first 18 years
of his life in an abusive household and another ten years in a prison environment. Two jurors
found that LeCroy expressed remorse, and six found that he was molested as a child.
         The jury found, finally, that the aggravating factors sufficiently outweighed any
mitigating factors so as to justify the imposition of the death penalty. See Trial Tr. at 2767–70.
         12
            Section 2255 provides that “[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence.”
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      result is reliable. Unless a defendant makes both showings, it cannot be said
      that the conviction or death sentence resulted from a breakdown in the
      adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

      The court held an evidentiary hearing on LeCroy’s claims on January 11–13,

2010 and on February 8, 2010. LeCroy presented the testimony of his attorneys

Kish, Kearns, and Mendelsohn, in addition to doctors Hilton, Carlson, Lisak, and

Medlin. The court found that LeCroy had failed to carry his burden of proof on

either of Strickland’s elements, performance or prejudice, and accordingly denied

him § 2255 relief. Regarding performance, the District Court credited testimony of

LeCroy’s attorneys that they had settled on the jurisdictional defense at the guilt

phase of trial and on the teaching expert strategy at the sentencing phase, and that

they had adapted the teaching expert strategy in response to District Court rulings

during the course of the trial.

      In particular, the District Court found that it was not ineffective to not call

Doctor Hilton as a witness. Contrary to LeCroy’s assertions, the court found that

the attorneys were aware of the contents of Doctor Hilton’s report and alert to both

the mitigating and aggravating aspects of it. They had, the court found, made a

reasonable strategic judgment that the risk of aggravation outweighed the possible

benefits of mitigation, and this judgment was entitled to Strickland deference.




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      The same considerations made it reasonable to not have Doctor Lisak

personally evaluate LeCroy for fear that such an evaluation would both expose

Doctor Lisak to damaging cross-examination and also trigger an evaluation of

LeCroy by a Government expert. Nor was it unreasonable for the defense team to

ultimately forego Doctor Lisak’s testimony—even as a teaching expert—once they

saw Doctor Medlin’s report and decided that they did not want to engage in a battle

of experts in front of the jury. The District Court found that these decisions were

reasonable strategic judgments made on the basis of a thorough investigation and

consideration of the lawyers’ options at trial.

      Finally, the District Court concluded that Kearns was not ineffective in her

closing argument. Though LeCroy might wish that she made the connection

between his childhood abuse and his murder of Tiesler more vigorously or used

different language, the court concluded that Kearns met minimum constitutional

requirements by drawing the jury’s attention to evidence that LeCroy had been

abused and that this abuse played a role in his criminality as an adult.

      Regarding prejudice, the District Court found that LeCroy had not been

prejudiced by his attorneys choices regarding expert mental-health testimony

because the testimony they elected not to offer was at least as aggravating as it was

mitigating, and that therefore there was no reasonable probability that its




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introduction would have persuaded the jury to reach a different verdict. Indeed, it

might have made the jury more certain that LeCroy deserved the death penalty.

      Following the District Court’s denial of his § 2255 petition, LeCroy lodged

this appeal.

                                         II.

      In reviewing a district court denial of a § 2255 petition,we review the court’s

legal conclusions de novo and its factual findings for clear error. Devine v. United

States, 520 F.3d 1286, 1287 (11th Cir. 2008) (per curiam). “A claim of ineffective

assistance of counsel is a mixed question of law and fact that we review de novo.”

Id. We give substantial deference to the factfinder on credibility determinations.

Id. We may affirm on any ground supported by the record. Lucas v. W.W.

Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

      Claims of ineffective assistance of counsel require the petitioner to show

both that his attorneys’ performance was deficient and that their deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064. In evaluating performance, “counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 690, 104 S. Ct. at 2066. It is petitioner’s burden to

“establish that counsel preformed outside the wide range of reasonable

professional assistance” by making “errors so serious that [counsel] failed to

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function as the kind of counsel guaranteed by the Sixth Amendment.” Butcher v.

United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (citing Strickland, 466 U.S. at

687–89, 104 S. Ct. at 2064–65). Showing prejudice requires petitioner to establish

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

the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068. “The prejudice prong requires a petitioner to demonstrate that seriously

deficient performance of his attorney prejudiced the defense.” Butcher, 368 F.3d

at 1293 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).

      Where, as here, the petitioner challenges the scope of his attorneys’

investigation and the reasonableness of their strategic choices, a further word about

attorney performance is warranted. Strickland makes plain that a reviewing court’s

objective “is not to grade counsel’s performance.” 466 U.S. at 697, 104 S. Ct. at

2069. We do not measure counsel against what we imagine some hypothetical

“best” lawyer would do, in part to avoid “the distorting effects of hindsight” and in

part to avoid judicial interference with “the constitutionally protected

independence of counsel,” lest we “restrict the wide latitude counsel must have in

making tactical decisions.” Id. at 689, 104 S. Ct. at 2065. We instead “reconstruct

the circumstances of counsel’s challenged conduct” and “evaluate the conduct

from counsel’s perspective at the time.” Id.




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      Underpinning Strickland, then, is the assumption that “[t]here are countless

ways to provide effective assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client in the same way.” Id. at

689–90, 104 S. Ct. at 2065–66. Crucially, Strickland permits attorneys to choose

between viable avenues of defense, and attorneys are not ineffective for making a

reasonable choice to take one avenue to the exclusion of another, or for selecting a

reasonable course without considering some other, equally reasonable course. “If a

defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A, course

B, and so on. The lawyer’s strategy was course A. And, our inquiry is limited to

whether that strategy, that is, course A, might have been a reasonable one.”

Chandler v. United States, 218 F.3d 1305, 1315 at n.16 (11th Cir. 2000). With

these standards in mind, we turn to LeCroy’s specific claims in this case.

                                          III.

      LeCroy makes three allegations of ineffective assistance of counsel on

appeal: (1) that his attorneys failed to investigate mental health mitigation evidence

and then present it during the sentencing phase of the trial; (2) that his attorneys

failed to object to jury instructions on the issue of LeCroy’s future dangerousness

and escape risk; and (3) that his attorneys failed to request a jury instruction that

                                          30
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the balancing of aggravating and mitigating factors be conducted according to the

reasonable doubt standard. See Pet’r’s Br. at v.13 Applying Strickland’s deferential

lens, we examine each claim in turn.

                                                 A.

        LeCroy claims that his lawyers’ performance was constitutionally deficient

because they failed “to investigate and present mental health evidence” at the

sentencing phase of his trial. Pet’r’s Br. at 23. There are two variants of this

claim: one is that the attorneys failed to meet with Doctor Hilton to discuss his

report on LeCroy’s mental health and subsequently failed to call him as a witness.

Had they done so, the jury would have heard mitigating testimony about how

LeCroy’s mental health issues contributed to the crime. The second variant is that

the attorneys failed to implement their preferred strategy of calling Doctor Lisak as

a teaching expert, both because they unreasonably abandoned calling Doctor Lisak

as a witness in the face of anticipated rebuttal testimony from Doctor Medlin and

because lawyers Mendelsohn and Kearns miscommunicated during their closing

arguments and failed to make the mitigating argument each expected the other to

make.

                                                 1.



        13
          Note 1, supra, sets out the ineffective assistance claims as contained in the certificate
of appealability the District Court issued.
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       LeCroy’s first argument is that his lawyers performed incompetently

because they did not have a face-to-face conversation with Doctor Hilton regarding

his written psychiatric report. LeCroy concedes that his attorneys “had done their

job in conducting an extensive investigation of Defendant’s background,” Pet’r’s

Br. at 26, but argues that “[i]nstead of working with Dr. Hilton to appreciate the

full context of his conclusions, counsel merely jettisoned his report,” id. at 28.

LeCroy argues that his attorneys could not possibly have made an informed

strategic choice regarding a mental health defense because, by not meeting with

Doctor Hilton, the lawyers prematurely closed this particular line of

investigation.14 LeCroy believes his defense was prejudiced because his attorneys

would have called Doctor Hilton to testify at trial had they only met with him, and

Doctor Hilton’s testimony would in turn have introduced the jury to such powerful

mitigation evidence that the verdict might have been different.


       14
          The only authority LeCroy cites on this point is Holsomback v. White, 133 F.3d 1382,
1386–89 (11th Cir. 1998), but that case involved distinguishable facts. The defendant in
Holsomback was accused of sexually abusing his son, and he asked his defense lawyer to
interview the family doctor—who had examined the son—so that the lawyer might uncover
medical records showing no physical signs of abuse. Id. at 1385. The defense lawyer did not
contact the doctor or request the doctor’s records, and so this court said the lawyer had been
ineffective for failing “to conduct any investigation into the conceded lack of medical evidence,
including [the lawyer’s] failure to consult with any physicians concerning the significance of the
lack of medical evidence in the case.” Id. at 1386 (emphasis added).
        Plainly, LeCroy’s situation is not like the defendant’s in Holsomback, where the lawyer
made no effort at all to investigate medical evidence. Indeed, even LeCroy concedes that his
lawyers “had done their job in conducting an extensive investigation of the Defendant’s
background.” Pet’r’s Br. at 26. Holsomback therefore has nothing to say about a case like
LeCroy’s, where the attorneys commissioned a report by a medical expert and then, having
reviewed its contents, made a tactical decision not to use it.
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      We do not agree with LeCroy that his attorneys performed ineffectively by

not meeting in person with Doctor Hilton after reviewing his reports. Even

LeCroy concedes that Doctor Hilton’s written report was “extensive,” Pet’r’s Br. at

27, and it is plain that the defense attorneys reviewed and understood the contents

of the report. See, e.g., Collateral Tr. Vol. II at 264 (Mendelsohn responding to

questions about the potentially damaging contents of Doctor Hilton’s report). The

District Court was right to conclude that Doctor Hilton’s report “was so detailed

that a reasonable attorney did not need to speak with him to understand his

diagnoses and the fact that he thought ‘magical thinking’ was a cause of the event.”

LeCroy, 2012 WL 1114238, at *52. Nor does LeCroy identify any “red flags” in

Doctor Hilton’s reports that might have prompted a reasonable attorney to initiate a

meeting or explore other avenues of investigation. Cf. Ferrell v. Hall, 640 F.3d

1199, 1233–34 (11th Cir. 2011). LeCroy’s argument seems to be, instead, that

attorneys are per se ineffective if they commission and review an expert report

without taking the additional step of meeting in person with the report’s author.

That is not what Strickland requires. LeCroy’s attorneys made a thorough

investigation of his background and employed an expert to evaluate the viability of

a mental health defense, and were not required to sit down with Doctor Hilton to

rehash conclusions that were already plain from the written report. See Bobby v.

Van Hook, 558 U.S. 4, 11–12, 130 S. Ct. 13, 19, 175 L. Ed. 2d 255 (2009)

                                         33
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(explaining that Strickland does not require attorneys to “dig deeper” when

substantial mitigation evidence is already in hand following a reasonably thorough

investigation); Reed v. Sec’y, Florida Dep’t of Corrs., 593 F.3d 1217, 1242–43

(11th Cir. 2010) (same).

      But even supposing LeCroy’s attorneys performed ineffectively when they

decided not to meet with Doctor Hilton in person, that decision did not prejudice

LeCroy’s defense. LeCroy’s theory of prejudice is twofold: he argues first that by

failing to meet with Doctor Hilton the defense team made strategic decisions on the

basis of an incomplete understanding of Doctor Hilton’s findings, see Strickland

466 U.S. at 690–91, 104 S. Ct. at 2066 (“[S]trategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.”), and second that

if the attorneys had met with Doctor Hilton they would have also called him as a

witness at trial, thereby exposing the jury to powerful mitigation evidence

concerning the role LeCroy’s mental illnesses played in the crime. But the record

does not support either theory of prejudice.

      Although LeCroy writes vaguely that through an in-person meeting the

lawyers could have “explored with [Doctor Hilton] the full ramifications of the

diagnoses he found” and “appreciate the full context of his conclusions,” Pet’r’s




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Br. at 27–28, 15 LeCroy never says what, exactly, was left to explore or appreciate

that was not already in Doctor Hilton’s report. LeCroy puts great emphasis on

Doctor Hilton’s testimony at the § 2255 hearing that “mental illness played a

‘direct role’ in the crime and that the murder would not have ‘occurred but for’ the

mental illnesses [Hilton] had diagnosed.” Pet’r’s Br. at 27; see also Collateral Tr.

Vol. II at 238. But one need not be a mental health expert to comprehend from the

written report that Doctor Hilton attributed the crime to LeCroy’s mental health

problems. Indeed, the report plainly lays out Doctor Hilton’s theory that LeCroy’s

“unusual and unexplainable encounter with Ms. Tiesler” in the woods “inflamed

some of his unresolved issues relative to his sexual abuse” by Tinkerbell, and that

“[h]is schizotypal tendencies of magical thinking and his previous experiences in

witchcraft led him to believe that Ms. Tiesler was indeed his former babysitter

(Tinkerbell), that witchcraft was involved and that a spell needed to be broken.”

Hilton Report at 17. Contrary to LeCroy’s assertions, then, there was nothing



       15
           LeCroy is inconsistent in his briefing regarding the ability of a layperson to understand
psychiatric diagnoses. He argues initially that his attorneys could not “appreciate the full context
of [Hilton’s] conclusions” without a face-to-face meeting, Pet’r’s Br. at 27–28, but later argues
in his reply brief that the attorneys had an unreasonable fear of letting the jury hear a diagnosis of
anti-social personality disorder because LeCroy’s “prior criminal acts” represented “evidence in
and of itself of an anti-social personality, which would have hardly been exacerbated by this
unremarkable conclusion by mental health experts.” Pet’r’s Reply Br. at 12. LeCroy is trying to
have it both ways: a jury of laypeople would allegedly have found a diagnosis of anti-social
personality disorder unremarkable because the evidence for it was so obvious, but his hapless
defense team needed a sit-down meeting with Doctor Hilton so their expert could convey
verbally what had already been conveyed in writing.
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more to be learned by meeting face-to-face with Doctor Hilton, and so the

attorneys’ failure to do so could not have prejudiced LeCroy’s defense.

      Nor was the defense prejudiced by the decision not to call Doctor Hilton to

testify at trial, a decision LeCroy says is “at the core of the Defendant’s claim,

because the decision not to call [Hilton] was made without full knowledge of the

consequences of this decision, that is without knowledge of the full extent of Dr.

Hilton’s testimony.” Pet’r’s Reply Br. at 13 n.1. It is important to note at the

outset that the decision not to call Doctor Hilton as a witness was itself a strategic

one deserving Strickland deference: indeed, the defense team never intended to use

Doctor Hilton as a witness at trial. He was, Mendelsohn explained, a “test run” to

“see what would happen”: “[W]e were going to see what results he came back with

and then with that information in hand, proceed with the rest of the case.”

Collateral Tr. Vol. III at 265.

      A “test run” was strategically important because the defense team knew that

offering the testimony of a mental health expert who had evaluated LeCroy would

trigger the Government’s reciprocal rights under Rule 12.2 to review the defense

team’s expert reports and to have LeCroy evaluated by an expert of the

Government’s choosing. Avoiding such an evaluation was a fundamental strategic

goal of the defense team: as Kish explained, “[A]n evaluation by a government

expert would have resulted in very harmful information. Real frankly, we didn’t

                                           36
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trust the government experts. And we felt that when the government would have

such information, it would make it exceptionally difficult to raise the parts of

[LeCroy’s] background that we thought were worthy of presenting to the jury

when they had to make their decision . . . during the sentencing phase of the case.”

Collateral Tr. Vol. I at 45–46.

       Contrary to LeCroy’s assertion, then, the decision not to use Doctor Hilton

as a witness at trial was imminently reasonable: it allowed the defense team to get

a complete picture of LeCroy’s background and mental health without having

LeCroy evaluated by their preferred expert witness, Doctor Lisak. Doctor Lisak

would in turn be able to testify as a “teaching witness” at trial—connecting

childhood sexual abuse to criminal acts in general terms—without being subject to

damaging cross-examination by the Government about LeCroy’s first-hand

account of the crime. This strategy had the added virtue of not undercutting the

jurisdictional defense the attorneys planned for the guilt phase of trial: an expert

who evaluated LeCroy would be cross-examined about the substantial planning

and premeditation preceding Tiesler’s murder, whereas a “teaching witness” would

not.

       Doctor Hilton’s actual findings only underscore the reasonableness of the

attorneys’ decision not to use him as a witness. The attorneys reviewed Doctor

Hilton’s report and recognized correctly that the results were a mixed bag for the

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defense. “There were parts of Dr. Hilton’s report that would have been very

helpful,” Kearns testified. “The problem was that there was the risk that the actual

diagnosis would not be helpful,” Collateral Tr. Vol. I. at 104–05, not to mention

Hilton’s vivid reconstruction of the crime and the report’s baseline inconsistency

with the botched-burglary defense.

      The first problem was LeCroy’s graphic and disturbing play-by-play review

of the murder. An expert, like Doctor Hilton, who had evaluated LeCroy and

learned the first-hand details of the offense would have been subject to lurid cross-

examination about the brutality of the murder and the extent to which Tiesler

suffered in the minutes before her death. At the § 2255 evidentiary hearing, the

Government’s attorney illustrated what this might have looked like during his

cross-examination of Doctor Hilton:

      Q:     Now, the defendant told you that when Ms. Tiesler first
             came into the house, that he was waiting for her. And
             you know that she had no idea he was there; correct?
      A:     Yes.
      Q:     And that he came up behind her and he hit her in the back
             of the head with the shotgun; right?
      A:     Yes.
      ...
      Q:     Then he told you that he tied her hands behind her back;
             correct?
      A:     Yes.
      ...
      Q:     And when her hands are tied behind her back, she’s
             virtually defenseless; correct?
      A:     Yes.

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Q:    She can’t fight her attacker, she can’t do anything,
      correct?
A:    Yes.
Q:    And then the defendant told you that he sexually
      assaulted her, correct?
A:    Yes.
Q:    She couldn’t fight that off, could she?
A:    No.
Q:    And then defendant told you that he took a wire, a cord
      of some sort, correct?
A:    Yes.
Q:    He wrapped it around her neck, correct?
A:    Yes.
Q:    She was still conscious and knowledgeable of what’s
      going on, correct?
A:    Yes.
Q:    She can’t fight him off because her hands are tied behind
      her back and he’s a six-foot-six almost 300-pound man,
      correct?
A:    Yes.
Q:    And he started choking her, correct?
A:    That’s correct.
Q:    And she would be fully aware of the fact that she’s being
      strangled to death, wouldn’t she?
A:    Yes.
Q:    But that wasn’t enough. He choked her to the point
      where she was gasping for air, according to him correct?
A:    Yes.
Q:    Choked her to the point where she defecated on herself,
      correct?
A:    Yes.
Q:    She couldn’t get her hands from behind her neck to try to
      get the cord off, could she?
A:    No, she—
Q:    She was being strangled to death, right?
A:    Yes.
Q:    And she would have known that, correct?
A:    Yes.
...

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      Q:     So since she wasn’t dying from the choking, he decided
             to slash her throat, correct?
      A:     Well, he stopped choking her, gave her the option of
             undoing the spell, and then when she still—I think at this
             point I think she was unconscious or near unconscious,
             that’s when he stabbed her in the back or—
      Q:     He slashed her throat first, didn’t he?
      A:     He slashed her throat and then—
      Q:     So if she still was conscious—and he described how he
             did it, right?
      A:     Yes.
      Q:     Grabbed her hair, pulled her neck up so the throat would
             be fully exposed, came to her with a knife and just slit the
             knife from, basically from ear to ear, right?
      A:     That’s correct.
      Q:     And you know that the crime scene investigation
             corroborates that, correct?
      A:     Yes.
      Q:     And if she was still conscious when that happened, then
             she would know that she was about to die, right?
      A:     Yes.
      Q:     But she didn’t die immediately, even after her throat was
             slashed, according to the defendant, is that correct?
      A:     That’s correct.
      Q:     So not only did he choke her to the point that she can’t
             breathe, slashed her throat, but then he stabbed her
             repeatedly in the back, right?
      A:     Yes.
      Q:     And if you had testified at the trial, you might have been
             subject to exactly this kind of examination about what the
             defendant said that he did to this victim, correct?
      A:     Yes.

Collateral Tr. Vol. II at 239–43 (emphasis added). We cannot fault LeCroy’s

defense attorneys for wanting to avoid this kind of testimony, even if LeCroy is

right, as an analytical matter, that the crime scene and autopsy reports had already

introduced the jury to many of the same details. LeCroy attempts to take this point
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a step forward and argue that the first-hand recollection of the crime was “no

worse than the evidence that the defense was already facing,” Pet’r’s Reply Br. at

11, but that is at least debatable: certainly a reasonable attorney could believe that

hearing this sort of narrative testimony, with its emphasis on the victim’s

awareness of her suffering, might inflame the jury in a way that a clinical coroner’s

report would not. Strickland deference is especially important in this setting

because defense attorneys are in the courtroom and able to see the jury and make

first-hand assessments of how jurors might react to testimony. Appellate judges,

by contrast, review only a cold record months or sometimes years after the events

at trial. LeCroy’s attorneys made a tactical choice that the mitigating value of

expert mental health testimony would be outweighed by the aggravating

information the Government would emphasize, and on this record we cannot say

their choice was unreasonable for Strickland purposes.

      A second problem with Doctor Hilton’s findings was that they wholly

undercut the botched-burglary defense LeCroy had put on in the guilt phase of his

trial. The defense had argued that LeCroy panicked when Tiesler interrupted him

midway through the burglary of her home and killed her impulsively, in what they

called “an irrational criminal act in the middle of a burglary.” Testimony from an

expert like Doctor Hilton would have shown the jury that none of that was true and

that the defense lawyers had always known it to be untrue: LeCroy instead had

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sought Tiesler out specifically and laid in wait for her to come home. See Hilton

Report at 10–11. This revelation might have seriously undercut the defense

lawyers’ credibility in the eyes of the jury for the remainder of trial.

      Third and finally, the defense team considered Doctor Hilton’s clinical

diagnoses—that LeCroy suffered from borderline personality disorder and anti-

social personality disorder—“not helpful,” to use Kearns’ term. Collateral Tr. Vol.

I at 104–05. Doctor Hilton reported that LeCroy had “homicidal ideations toward

a few of the other inmates” over what LeCroy called “trivial things.” Hilton

Report at 12. At the § 2255 hearing, Hilton testified on cross-examination that he

believed LeCroy would represent a danger if he ever escaped custody, that his

future dangerousness might extend to others incarcerated with him, and that—

because LeCroy understands now that Tiesler was not Tinkerbell—he might

mistake a different woman for Tinkerbell in the future and kill again. See

Collateral Tr. Vol. II at 225–27.

      Any of these considerations, standing alone, would give a good attorney

pause. Cumulatively, they present an ironclad case for the reasonableness of the

defense team’s decision not to call Doctor Hilton as a witness. Mendelsohn’s

testimony summarized the attorneys’ thinking before trial:

             Q.     So Dr. Hilton’s report wasn’t going to give you an
                    affirmative defense that you could use against the
                    charges, correct?
             A.     Yes.
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             Q.     And he was going to give you the negative
                    assessments that the defendant was suffering from
                    antisocial personality disorder and borderline
                    personality disorders, correct?
             A.     Yes.
             Q.     And he was going to give you this very detailed
                    recitation of the facts of this very horrible crime,
                    correct?
             A.     That’s right.
             Q.     And none of that you wanted to present to the jury
                    in your either presentation of a defense in the guilt
                    phase or your presentation in the penalty phase,
                    correct?
             A.     Yes.
             Q.     And that was a judgment that you, the four
                    attorneys that were involved in the case reached
                    collectively. Is that fair?
             A.     That is fair.

Collateral Tr. Vol. II at 264. We agree with the District Court that this strategic

judgment was a reasonable one.

      In any event, the decision not to call Doctor Hilton as a witness did not

prejudice the defense because—as the District Court put it—“LeCroy’s mental-

illness evidence was the ultimate double-edged sword.” LeCroy, 2012 WL

1114238 at *68. For one thing, none of the evidence went to LeCroy’s

competency or presented an affirmative defense; LeCroy understood that killing

Tiesler was wrong, and he did it anyway. Collateral Tr. Vol. II at 264. Second,

“the testimony that could have been presented was just as likely to have resulted in

aggravation against rather than mitigation for” LeCroy. See Reed, 593 F.3d at

1238 (citation omitted). Doctor Hilton’s testimony would have underscored all of
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the Government’s aggravating factors: that LeCroy targeted Tiesler, that he laid in

wait for her inside her home, and that he committed the murder in an especially

heinous manner. Doctor Hilton found, moreover, that LeCroy could be a danger to

others in the future, either to fellow inmates or to the public if he ever escaped—

and LeCroy had tried to escape from prison before. Third, Doctor Hilton’s

testimony would have undercut the credibility of the defense lawyers in the eyes of

the jury once it became clear that Doctor Hilton’s conclusions were orthogonal to

the botched-burglary defense. Considered in total, then, the District Court was

correct in concluding that there was no reasonable probability that the jury would

have reached a different sentence with Doctor Hilton’s testimony before them.

Indeed, Doctor Hilton’s testimony might have made things worse. See LeCroy,

2012 WL 1114238 at *68–69.

                                          2.

      LeCroy’s second argument is that—whatever the merits of the botched-

burglary defense and teaching-witness gambit as strategic questions—his attorneys

failed to actually implement their strategy at trial. Had the attorneys pulled off the

teaching-expert plan, LeCroy allows that “there might, but only might, be some

merit” to the District Court’s conclusion that the attorneys were not ineffective.

Pet’r’s Reply Br. at 1. But LeCroy says that “simply did not happen.” Id. Instead,

LeCroy says his attorneys unreasonably decided not to call their teaching expert,

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Doctor Lisak, because of an irrational fear of the Government’s rebuttal witness,

and then compounded the error in their closing argument by failing to adequately

connect LeCroy’s sexual abuse to the crime. See id. at 1–4. On this account,

LeCroy received at best only a fragmentary mental health defense at trial: “What

was missing was any connection of the sexual abuse to Defendant’s crime, which

could only be provided by expert testimony, which counsel unreasonably

abandoned.” Id. at 4–5.

      We do not agree that LeCroy’s attorneys were incompetent in their

execution of their trial strategy. For purposes of our discussion, we divide

LeCroy’s claim on this point into three alleged defects in his attorneys’

representation: (1) that they ought to have had Doctor Lisak personally evaluate

LeCroy; (2) that they ought to have called Doctor Lisak as a witness at trial; and

(3) that they ought to have done a better job in their closing argument connecting

LeCroy’s childhood sexual abuse to Tiesler’s murder. We conclude that none of

these claims warrant § 2255 relief.

      First, all the problems that would have attended calling Doctor Hilton as a

witness at trial, discussed in Part III.A.1, supra, applied with equal force to any

expert who evaluated LeCroy. As Kearns explained at the § 2255 hearing, “[I]f we

had Dr. Lisak examine Mr. LeCroy and then intended to use Dr. Lisak as a witness,

then we would have to make Bill LeCroy available to the government and their

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expert for an evaluation,” Collateral Tr. Vol. I at 93, in addition to disclosing

Doctor Lisak’s findings to the Government. Id. at 113. Just as we do not think it

was unreasonable not to call Doctor Hilton as a witness, we do not think it was

unreasonable for the defense team to try and insulate their preferred teaching

expert from damaging cross examination or protect their client from a hostile

Government evaluation. These choices represented reasonable tactical decisions

by competent attorneys.

      The decision not to call Doctor Lisak, even as a teaching expert, was also a

reasoned tactical decision on the defense team’s part. At the close of the guilt

phase and before the jury returned a verdict, the lawyers were provided a copy of

Doctor Medlin’s report, which she had prepared from examining LeCroy’s

documentary records from school, the military, and prison. In her report, Doctor

Medlin rejected out of hand the causal link between childhood sexual abuse and

violent criminality as an adult, and she further drew attention to LeCroy’s

inconsistent reporting of his abuse at the hands of Tinkerbell. Doctor Medlin

suggested that some inmates fabricate tales of abuse to garner sympathy in the

criminal justice system, and that such fabrication might explain why LeCroy

sometimes reported being abused and sometimes did not. At the § 2255 hearing,

Kearns explained “what was so threatening about Dr. Medlin’s report. It was the

complete apparent unwillingness to accept any impact of childhood sexual abuse

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on an adult man. I mean, it was more that she seemed—we seemed to have two

experts that were polar opposites, one [i.e., Lisak] that said this is a very damaging,

this trauma is very damaging and has very serious consequences, and then an

expert who seemed to be unwilling to accept it.” Collateral Tr. Vol. I at 125. Not

wanting to engage in a battle of the experts, and still fearful that calling Doctor

Lisak would trigger a Government evaluation,16 the defense elected not to call

Doctor Lisak and instead try to connect the abuse to the crime on their own in their

closing argument.

       LeCroy contends that this decision was manifestly unreasonable because

Doctor Medlin’s report was of such poor quality that, had Doctor Lisak been called

to testify, he could have easily dismantled a report he told the attorneys was

“nonsense,” a “hatchet job by somebody who really didn’t know what she was

talking about.” See Pet’r’s Reply Br. at 14 (quoting Collateral Tr. Vol. I at 166).

But as Mendelsohn explained, the attorneys understood that they “weren’t dealing

with experts, we were dealing with lay people; and in the end it may just be a battle

of the experts. No matter how incredible she may be on an objective expert level,


       16
           Kearns noted that, at that point in trial, “if we used Dr. Lisak as a teaching expert
without having evaluated Mr. LeCroy, we were running the risk of still having to make him
available to the government for Dr. Medlin’s evaluation. . . . And this order put us in the worst
possible position because then we had Bill LeCroy, our expert not having seen Bill LeCroy; and
if that was countered by Dr. Medlin who had done an evaluation of Bill LeCroy, then clearly a
jury would be more likely to believe the doctor who had actually evaluated him.” Collateral Tr.
Vol. I at 112.

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you know, she could come off polished enough to a lay jury that we would end up

having her be believable.” Collateral Tr. Vol. II at 277–78. The District Court,

having seen Doctor Medlin testify at the § 2255 hearing, expressly found that “the

Defense’s concerns were real. Even though Dr. Lisak and Dr. Hilton disagree with

Dr. Medlin, her experience with sexual abuse perpetrators and citation of studies

may well have convinced a lay jury that LeCroy only admitted sexual abuse in

situations in which he wanted sympathy or benefits.” LeCroy, 2012 WL 1114238

at *55. We are especially hesitant to disturb this conclusion insofar as we give

special deference to the factfinder on questions of credibility. See Devine, 520

F.3d at 1287.

      LeCroy also argues—with respect to both Doctor Hilton and Doctor Lisak—

that his attorneys were operating under an irrational fear of a Government

evaluation. LeCroy claims that his attorneys could have agreed to a Government

evaluation “and, if it turned out badly, still attempted the ‘teaching expert’ ploy.”

Pet’r’s Br. at 31. But without knowing what a Government evaluation would

show, LeCroy claims his attorneys could not have made an informed strategic

decision because they were operating “without knowledge of what the real stakes

were.” Id.

      This argument misses the mark. First, it was not unreasonable for the

defense team to infer, based on Doctor Hilton’s evaluation, that an evaluation by a

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Government expert would come to similar—or worse—conclusions. Kearns

testified that she was “very fearful” of a Government evaluation “based on [her], at

that point in time, 30 years of experience doing criminal defense work,” during

which her experiences with Government psychiatric evaluations had “not been

good.” Collateral Tr. Vol. I at 94, 108, 110. Or, as Mendelsohn put it, “I don’t

have a lot of faith that the government experts would be coming out trying to help

Mr. LeCroy.” Collateral Tr. Vol. II at 269. LeCroy certainly offers no reason to

think that the lawyers’ judgment was unreasonable.

      Second, and perhaps more importantly, LeCroy’s argument here inverts the

burden of proof, which on a § 2255 petition belongs to the petitioner. If LeCroy’s

claim is that a Government evaluation would have been less damaging than Doctor

Hilton’s evaluation—and that, accordingly, the defense team ought to have been

more willing to roll the dice and see what the Government would come up with—

then to carry that argument LeCroy would actually need to show that the

Government evaluation would be favorable. Otherwise, LeCroy is asking us to

disregard the burden of proof and speculate about what might have been, drawing

an inference in his favor that the record simply does not support. Here, where

LeCroy is either unwilling or unable to demonstrate that the Government’s

evaluation would in fact have been favorable—as opposed to conceivably being

favorable—he has failed to carry his burden in showing prejudice.

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      Finally, LeCroy takes issue with his attorneys’ closing argument at the

sentencing phase, claiming they never adequately connected his childhood abuse to

the crime. This Court explained in Lawhorn v. Allen, 519 F.3d 1272 (11th Cir.

2008), that deficient performance in the closing-argument context can be shown by

“an attorney’s failure to use the closing argument to focus the jury’s attention on

his client’s character or any mitigating factors of the offender’s circumstances, and

by his failure to ask the jury to spare his client’s life.” Id. at 1295. Here, Kearns

indisputably asked the jury to show mercy and spare LeCroy’s life, so LeCroy’s

claim is that Kearns failed to “drive the point home regarding the effect of sexual

and other abuse suffered by the Defendant,” Pet’r’s Br. at 29–30, and that the link

she drew in her closing argument—that LeCroy’s self-esteem suffered as a

consequence of Tinkerbell’s abuse, and that this contributed to Tiesler’s murder—

was “hardly a compelling case for a sentence other than death.” Id. at 30.

But as the District Court correctly noted, LeCroy’s point here is not that Kearns

failed to draw the jury’s attention to the available mitigating evidence. Plainly, she

did that. His claim is, at best, that he wishes she had done it better. That does not

give rise to an ineffectiveness claim of the sort we found in Lawhorn. In that case,

we said an attorney had performed deficiently on closing where the attorney

waived his closing argument entirely “based on a complete misunderstanding of a

clear rule of law.” 519 F.3d at 1295–96. By contrast, Kearns in her closing

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argument reminded the jury that LeCroy had been abused and explained how it

affected him as an adult. She might have done more, but Strickland requires

competence, not perfection.

                                           B.

      LeCroy’s second category of alleged ineffectiveness is his attorneys’ failure

to object to the District Court’s instruction at the conclusion of the sentencing

phase that the jury could consider the nonstatutory aggravating factor of future

dangerousness to the public if the jury found beyond a reasonable doubt that

defendant posed a “risk” of escape, as opposed to finding a “likelihood” of escape.

See Pet’r’s Br. at 42. The word “risk” is, LeCroy says, “so elastic and ill-defined

that it could include the mere possibility of an escape, no matter how fanciful.” Id.

at 43. By failing to object to this instruction, the attorneys allegedly failed to

perfect a meritorious legal issue on appeal.

      We disagree. First, LeCroy’s attorneys were not ineffective in failing to

object to the court’s wording because the instruction did not misstate the law. We

have said that district courts have “broad discretion in formulating a jury charge so

long as the charge as a whole accurately reflects the law and facts,” United States

v. Turner, 871 F.2d 1574, 1578 (11th Cir. 1989) (citations omitted), and the jury

instruction at issue here was not an inaccurate statement of law. Rather than

inviting the jury to entertain a “fanciful” possibility of escape, as LeCroy suggests,

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Pet’r’s Br. at 43, the court instructed the jury that they could only consider

LeCroy’s future dangerousness “if each of you finds beyond a reasonable doubt

that Mr. LeCroy does pose a risk of escape.”

        When we considered this instruction on direct appeal in LeCroy’s case, we

said:

        “In light of LeCroy’s history of attempted escapes and the judge’s
        clear instructions to the jury requiring that it find a risk of escape
        ‘beyond a reasonable doubt,’ we cannot conclude that there is a
        reasonable probability that the different standard urged by LeCroy
        would have resulted in a different outcome. Moreover, the jury found
        every other aggravating factor alleged by the government, and such
        findings are amply supported by the record.”

LeCroy, 441 F.3d at 931. LeCroy is right that, because trial counsel did not

object to this instruction, we conducted only plain error review. But he

offers no reason to suggest that the analysis would change under an abuse-

of-discretion standard, and indeed cites no authority at all for the proposition

that “likelihood” was the magic, mandatory word.17 Our reasoning in

LeCroy’s direct appeal also suggests that even if counsel had objected to the

instruction, we would not have reversed his conviction given that “the jury

found every other aggravating factor alleged by the government.” Id.

        17
          The case that LeCroy does cite on this point is not persuasive. United States v. Allen,
247 F.3d 741, 788 (8th Cir. 2000), rev’d on other grounds, 536 U.S. 953 (2002), does not help
him, because there the Eighth Circuit said that “[a] defendant in prison for life is still a risk to
prison officials and to other inmates, and even though a life sentence without the possibility of
parole greatly reduces the future danger to society from that particular defendant, there is still a
chance that the defendant might escape from prison or receive a pardon or commutation of
sentence.”
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LeCroy, therefore, cannot show prejudice from his attorneys’ failure to

object.

                                          C.

      LeCroy’s final claim is that his attorneys were ineffective for failing to

request an instruction that the jury, in conducting its balancing of aggravating and

mitigating factors, was required to find beyond a reasonable doubt that the

aggravating factors outweighed the mitigating ones. LeCroy’s theory is that, under

cases like Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556

(2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d

435 (2000), any fact essential to the imposition of a particular sentence must be

found beyond a reasonable doubt, and that the ultimate balance between

aggravating and mitigating sentencing factors is effectively a factual question.

Pet’r’s Br. at 44–45. A competent attorney would, LeCroy says, have asked for

such a jury instruction.

      The problem with this argument is that it invites us to evaluate counsel’s

conduct retrospectively, rather than at the time of trial. Contra Strickland, 466

U.S. at 689, 104 S. Ct. at 2065. At the time of LeCroy’s trial in 2004, no court had

found that the jury had to be instructed that it conduct its balancing inquiry against

a reasonable doubt standard. To be sure, subsequent cases advanced the possibility

that Apprendi and the like applied to a jury’s balancing deliberations, see, e.g.,

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United States v. Gabrion, 648 F.3d 307, 325–29 (6th Cir. 2011), aff’d en banc, 719

F.3d 511 (6th Cir. 2013), but LeCroy points to no authority that would have given

LeCroy’s attorneys notice at the time of trial that such an instruction was even

arguably required. 18 Even supposing LeCroy’s argument had merit, then, he

directs it to the wrong target. Strickland is concerned with prevailing professional

norms at the time of trial, not with subsequent developments in the law.

                                                IV.

       For the foregoing reasons, the judgment of the District Court is

       AFFIRMED.




18
   Indeed, the District Court surveyed available cases and concluded that the opinions available
to LeCroy’s attorneys at the time of trial “would have [led] a reasonable attorney to believe that
Ring and its progeny would not apply to” balancing instructions. See LeCroy, 2012 WL
1114238 at *63–65 (emphasis added).
                                                54
