               Case: 13-11882       Date Filed: 09/05/2014      Page: 1 of 80


                                                                         [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-11882
                              ________________________

                         D.C. Docket No. 5:09-cv-00081-MCR



KAYLE BARRINGTON BATES,

                                                                       Petitioner-Appellant,

                                            versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                     Respondent-Appellee.

                              ________________________

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

                                    (September 5, 2014)

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

ED CARNES, Chief Judge, and TJOFLAT, Circuit Judge: 1


   1
      This opinion was written jointly by Chief Judge Carnes and Judge Tjoflat. Cf. Florida ex
rel. Atty. Gen. v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1240 n.1 (11th Cir.
2011) (jointly authored opinion); Waters v. Thomas, 46 F.3d 1506, 1509 n.1 (11th Cir. 1995) (en
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       On the afternoon of June 14, 1982, Janet White, a State Farm Insurance

clerk, returned from lunch around 1:00 p.m., as was her normal practice. As she

came into the office, she answered the phone. Unknown to her, she was not alone.

She knew that Kayle Barrington Bates had stopped by the office earlier that day,

talked with her, and left. She did not know that, having seen that she was alone in

the office, Bates had returned to the area and parked his truck in the woods some

distance behind the building where it could not be seen and waited. She did not

know that while she was out at lunch he had broken into the office and was there

waiting for her to return. When Bates surprised White she let out a “bone-chilling

scream” and fought for her life. He overpowered her and forcibly took her from

the office building to the woods where he savagely beat, strangled, and attempted

to rape her, leaving approximately 30 contusions, abrasions, and lacerations on

various parts of her face and body.

       The state trial judge in his sentencing order found that during the attack

Bates had stolen White’s diamond ring “by tearing it from her left ring finger” and

in the process severely injured her. “While being attacked, robbed, bruised,

lacerated, strangled and stabbed [she] was still alive.” Death resulted from the stab




banc) (jointly authored opinion). Part III was authored by Judge Tjoflat, while the remainder
was authored by Chief Judge Carnes.


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wounds but was not immediate; it “came only some five to ten minutes after this

brutal and senseless attack.”

                                           I.

      As a result of his crimes against Janet White, Bates is now on death row in

Florida. This is his appeal from the denial of federal habeas relief. In accordance

with the certificate of appealability that we granted, Bates challenges his

convictions and capital sentence on two grounds. As to his convictions, Bates

contends that his trial counsel was constitutionally ineffective for failing to object

to an opening prayer, which was delivered in the presence of the jury venire by a

minister of the church where the victim’s funeral service had been held. As to his

death sentence, he relies on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct.

2187 (1994), to contend that his due process rights were violated at his capital

resentencing proceeding when the trial court refused to instruct the jury that Bates

had agreed to waive his eligibility for parole, and that he had already been

sentenced to two life terms plus fifteen years on his other counts of conviction,

which would run consecutively to any sentence imposed for first-degree murder.

                                          A.

      It was in 1982 that Bates was indicted in Bay County, Florida, for the first-

degree murder, kidnapping, sexual battery, and armed robbery of Janet Renee

White. Before the beginning of jury selection for the 1983 trial, the judge asked



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those present in the courtroom, including the members of the jury venire, to stand

while Reverend N.B. Langford of the First Baptist Church opened the proceedings

with a prayer. Reverend Langford then gave the following invocation:

      May we pray together. Father, this is a beautiful day that you’ve
      given to each of us, and we thank you for the privilege that’s ours to
      enjoy all the bounties that you’ve given to each of us. Lord, we pray
      for the seriousness of the situation with which we’re confronted, and
      we ask for your wisdom and your guidance, Father, upon all who are
      involved, we pray for the Judge as he presides for your special
      wisdom and for your guidance to do upon his life. Thank you, Father,
      that we live in a country that has freedom for all, and we ask now for
      your leadership and your blessings upon the judicial system, for in
      Christ’s name I pray, Amen.

Bates’ court-appointed counsel, Theodore Bowers, did not object to the prayer and

the court proceeded with jury selection. The next day the prosecution called its

first witness, the victim’s husband. He testified, among other things, that he had

last seen his wife at the First Baptist Church as her coffin was being closed during

her funeral service. Bowers did not object to that testimony.

      The evidence of guilt presented against Bates during the three-day trial was

overwhelming, as the Florida Supreme Court’s summary of it shows:

      Bates was arrested at the scene of the crime just minutes after the
      victim’s death. He had the victim’s diamond ring in his pocket, and
      he tried to conceal it from law enforcement officers. A watch pin
      consistent with Bates’ watch was found inside the victim’s office, and
      Bates’ watch was missing a watch pin. Footprints consistent with
      Bates’ shoes were found behind the State Farm office building.
      Bates’ hat was found near the victim’s body. Two green fibers were
      found on the victim’s clothing — one on her blouse and one on her
      skirt — that were consistent with the material that Bates’ pants were

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      made of. A knife case was found near the victim’s body, and that case
      was identified by various witnesses as being the exact type that Bates
      wore. The victim’s two fatal stab wounds were consistent with the
      type of buck knife that Bates carried in that case. The consistency
      between the stab wounds and Bates’ knife was striking; the wounds
      were four inches deep, and Bates’ knife was four inches long; the
      width of the wounds was consistent with the width of Bates’ knife;
      and as was testified to at the resentencing, there were abrasions at the
      bottom of the wound that were consistent with marks that Bates’ knife
      would have made. Bates’ statements to investigators and at his trial
      also placed him either at the scene of the crime or directly involved in
      the victim’s murder. Bates stated during a telephone call to his wife
      after his arrest that he killed a woman.

Bates v. State, 3 So. 3d 1091, 1099 (Fla. 2009).

      The jury convicted Bates of first-degree murder, kidnapping, armed robbery,

and attempted sexual battery (a lesser-included offense of the crime of sexual

battery that was charged in the indictment). It recommended a sentence of death

on the murder count. The judge followed the jury’s recommendation, sentencing

Bates to death for the first-degree murder of White, and imposing two life

sentences plus fifteen years imprisonment on the three remaining counts of

conviction, all of which were to run consecutively to each other. In support of the

death sentence the judge found five statutory aggravating circumstances and one

statutory mitigating circumstance. See Bates v. State, 465 So. 2d 490, 492 (Fla.

1985).

      On direct appeal, the Florida Supreme Court affirmed Bates’ convictions and

non-capital sentences, but vacated the death sentence and remanded for



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resentencing on the murder conviction because the trial court had erroneously

found two aggravating circumstances. Id. at 492–93. On remand the trial judge

determined that the remaining aggravating circumstances still outweighed the

statutory and non-statutory mitigating ones, and he again sentenced Bates to death.

The Florida Supreme Court affirmed. Bates v. State, 506 So. 2d 1033 (Fla.), cert.

denied, 484 U.S. 873, 108 S.Ct. 212 (1987).

                                          B.

      After his death warrant was signed in 1989, Bates filed a state post-

conviction motion under Florida Rule of Criminal Procedure 3.850. Among other

claims for collateral relief, Bates asserted a claim under the First Amendment’s

Establishment Clause, contending that his convictions and capital sentence were

improperly obtained because the trial began with a prayer from the victim’s

minister. He also raised a related Sixth Amendment claim of ineffective assistance

of counsel based on his trial attorney’s failure to object to the Reverend’s opening

invocation. The trial judge recused himself from ruling on the Rule 3.850 motion

and was replaced by a different judge. At an evidentiary hearing on that motion,

Bates’ trial counsel testified that he thought “nothing of the prayer” because it

neither encouraged the jury to convict nor acquit Bates. However, in a self-

described act of “pure speculation,” counsel opined that the prayer could have




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prejudiced Bates given the “racial tension” involved in the case. (Bates is black

and his victim was white.)


      The state trial court summarily rejected Bates’ claims regarding the prayer,

but granted him a new sentence hearing based on defense counsel’s ineffective

assistance during the second penalty hearing before the jury. See Bates v. Dugger,

604 So. 2d 457, 458–59 (Fla. 1992). The Florida Supreme Court affirmed that

decision in all respects, including the denial of Bates’ dual challenges arising from

the prayer. The court rejected Bates’ substantive Establishment Clause challenge

as procedurally barred because it was not properly raised at trial, and it summarily

rejected “[a]ny allegations of ineffectiveness raised incidentally” to that

substantive claim as being “without merit.” Id. at 459 & n.4.

                                          C.

      Before Bates’ 1995 resentencing proceeding (his third sentence proceeding

before a jury), the Florida legislature amended Fla. Stat. § 775.082 to provide that

a defendant convicted of capital murder could either be sentenced to death or to

life imprisonment without the possibility of parole. See Fla. Stat. § 775.082(1)

(1995) (“A person who has been convicted of a capital felony shall be punished by

death . . ., otherwise such person shall be punished by life imprisonment and . . .

shall be ineligible for parole.”). The revised statute, which became effective on

May 25, 1994, differed from the capital sentencing scheme in effect at the time of


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Bates’ 1982 crimes, under which life imprisonment with the possibility of parole

after 25 years was the only alternative to death for the crime of first-degree murder.

See id. § 775.082 (1983); see also Hudson v. State, 708 So. 2d 256, 262 (Fla.

1998).

      Bates was concerned that the jury might sentence him to death to avoid the

possibility that under a life sentence he could eventually be released from prison.

He sought to avoid that by having the amended version of § 775.082, which

provided life without parole as the only alternative to a death sentence, applied to

him and the jury instructed that it could impose a life without parole sentence in

lieu of death. Bates stated that he would waive any rights he had to parole

eligibility under the pre-amendment version of § 775.082, along with any claim

that retroactively applying the revised statute to his criminal conduct would violate

ex post facto principles. The trial court denied Bates’ request because life without

the possibility of parole was not an available sentence at the time he committed

first-degree murder, and he could not unilaterally elect to receive a sentence not

authorized by state law. Bates also asked the trial court to inform the jury that he

had already been sentenced to consecutive life terms plus fifteen years on his other

counts of conviction, but the court denied that request as well.

      After three hours of deliberations, the latest resentencing jury submitted the

following note to the trial judge: “Are we limited to the two recommendations of



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life with minimum 25 years or death penalty. Yes. No. Or can we recommend

life without a possibility of parole. Yes. No.” Instead of answering “yes” or “no,”

the trial court referred the jury to its written instructions. After further

deliberations, the jury recommended a death sentence by a vote of nine to three.

The trial court followed that recommendation and, for the third time, sentenced

Bates to death for the first-degree murder of White.

      Bates appealed his latest death sentence to the Florida Supreme Court,

contending that the trial court’s refusal to instruct the jury that life without the

possibility of parole was an available alternative to death violated due process and

denied him a fundamentally fair capital sentence proceeding. He also challenged

the trial court’s refusal to inform the jury about his other consecutive sentences.

The Florida Supreme Court rejected those claims on the merits and affirmed the

death sentence. Bates v. State, 750 So. 2d 6 (Fla. 1999). In doing so the court held

that the amended version of Fla. Stat. § 775.082 did not apply retroactively to

crimes committed before its effective date of May 25, 1994, because there was no

clear legislative intent to overcome the presumption that state laws apply only

prospectively. Id. at 10; see also State v. Lavazzoli, 434 So. 2d 321, 323 (Fla.

1983) (“It is a well-established rule of construction that in the absence of clear

legislative expression to the contrary, a law is presumed to operate

prospectively.”). In view of that, the court concluded that Bates’ attempted



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waivers of parole eligibility and any ex post facto claims were “of no

consequence” because he could not “by agreement confer on the [trial] court the

authority to impose an illegal sentence,” meaning one which was not statutorily

authorized at the time he committed first-degree murder. Bates, 750 So. 2d at 10–

11 (quotation marks omitted).

      The Florida Supreme Court also held that Bates was not entitled to apprise

the jury of his other consecutive sentences because that “evidence would open the

door to conjecture and speculation as to how much [actual prison] time a prisoner

serves of a sentence,” which can be affected by “many factors other than the length

of the sentence imposed by the sentencing court,” and thus would “distract [the]

jurors from the relevant issue of what is the appropriate sentence for the murder

conviction.” Id. at 11.

      Thereafter, Bates filed another state post-conviction motion under Rule

3.850 challenging both his convictions and his latest death sentence, although that

filing did not raise any issues involved in this appeal. The state trial court denied

that motion and the Florida Supreme Court affirmed the denial. See Bates, 3 So.

3d 1091.

                                          D.

      Bates filed his federal habeas petition in March 2009, asserting a large

number of constitutional claims, including the two at issue in this appeal: (1) that



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his trial counsel rendered ineffective assistance in failing to object to the prayer in

the presence of the jury venire before voir dire, particularly once the victim’s

husband gave testimony implying that she had been a member of that minister’s

congregation; and (2) that his due process rights under Simmons were violated

when, at his 1995 resentencing, the trial court refused to instruct the jury about his

parole ineligibility. In an order issued on September 28, 2012, the district court

denied the 28 U.S.C. § 2254 petition, finding that his ineffective assistance claim

was procedurally barred and that the Florida Supreme Court’s rejection of his

parole ineligibility claim was entitled to deference under the standards prescribed

by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

      Bates filed a motion to alter or amend the district court’s judgment under

Federal Rule of Civil Procedure 59(e), contending that the court had erroneously

found that his ineffective assistance claim was procedurally defaulted. The court

granted the Rule 59(e) motion, concluding that the Florida Supreme Court had

indeed reached the merits of that claim, but determined that federal habeas relief

was still not warranted because the state court’s merits determination was entitled

to AEDPA deference. We later granted Bates a COA on two issues: (1) whether

trial counsel rendered ineffective assistance in failing to object to the prayer; and

(2) whether “the trial court’s refusal to instruct the jury about [Bates’] parole

eligibility, including the effect of consecutive sentences he had left to serve, was



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contrary to law established by the United States Supreme Court or objectively

unreasonable in light of such precedent.”

                                           II.

      We review de novo the denial of Bates’ § 2254 petition. Our review, like

the district court’s, is “greatly circumscribed” by the “highly deferential” standards

mandated by AEDPA. See Wood v. Allen, 542 F.3d 1281, 1285 (11th Cir. 2008)

(quotation marks omitted). Under that statute, a federal court may not grant habeas

relief on a claim adjudicated on the merits in state court unless the state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      The phrase “clearly established federal law” refers only to “the holdings, as

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

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

1495, 1523 (2000); see also Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2011)

(“Clearly established federal law is not the case law of the lower federal courts,

including this Court.”). A state court decision is “contrary to” clearly established

federal law if it either “applies a rule that contradicts the governing law set forth in

[Supreme Court] cases” or “confronts a set of facts that are materially



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indistinguishable from a decision of [the Supreme] Court and nevertheless arrives

at a [different] result.” Williams, 529 U.S. at 405–06, 120 S.Ct. at 1519–20. An

“unreasonable application” of Supreme Court precedent, by contrast, occurs when

the state court “correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08, 120 S.Ct.

at 1520. “[A]n unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 410, 120 S.Ct. at 1522. So long as

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

a federal habeas court may not grant relief. Harrington v. Richter, — U.S. —, 131

S.Ct. 770, 786 (2011) (quotation marks omitted).

                                          III.

      Bates contends that his trial counsel was constitutionally ineffective for

failing to object to Reverend Langford’s opening prayer, either when it was

delivered before voir dire in the presence of the venire or after the victim’s

husband testified that her funeral service was held at the Reverend’s church.

Bates insists that the prayer violated the First Amendment’s Establishment Clause

because “there was no constitutionally legitimate basis for the trial judge to inject”

religion into the proceedings, and that it substantially impaired his due process

right to a fair trial because it purportedly urged the jury to base its verdict on divine

wisdom and guidance instead of the evidence adduced at trial.



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      Under clearly established federal law, a petitioner asserting a claim of

ineffective assistance of counsel must demonstrate both deficient performance and

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

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

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

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068

(1984). “Judicial scrutiny of counsel’s performance must be highly deferential,”

indulging the “strong presumption that counsel’s conduct [fell] within the wide

range of reasonable professional assistance” and bearing “in mind that counsel’s

function . . . is to make the adversarial testing process work in the particular case.”

Id. at 689–90, 104 S.Ct. at 2065–66. Because Strickland demands an “objective

inquiry into the reasonableness of counsel’s performance—an inquiry which asks

only whether ‘some reasonable lawyer’ could have pursued the challenged course

of conduct—a petitioner bears the heavy burden of showing that ‘no competent

counsel would have taken the action that his counsel did take.’” Gissendaner v.

Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013) (quoting Chandler v. United

States, 218 F.3d 1305, 1315 & n.16 (11th Cir. 2000) (en banc)). And where the

highly deferential standards mandated by Strickland and AEDPA both apply, the

combined effect is a doubly deferential form of review which asks “not whether

counsel’s actions were reasonable,” but whether “there is any reasonable argument



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that counsel satisfied Strickland’s deferential standards.” Harrington, 131 S.Ct. at

788.

                                           A.

       Initially, we must untangle two versions of Bates’s claim under Strickland.

There is, first, the version Bates presented in his habeas petition, and then there is

the version Judge Wilson, in his concurring opinion, proposes on Bates’s behalf.

Both versions concern the following sequence of events at Bates’s trial. First,

before jury selection, the trial judge invited a minister—introduced as “Reverend

Langford of the First Baptist Church”—to open the proceedings with a prayer.

One day later, at the guilt phase of the trial, the victim’s husband testified that he

last saw his wife “at First Baptist Church before they closed the coffin.” Bates’s

trial attorney did not object to either event. Both Bates and Judge Wilson say the

attorney should have objected, though for different reasons.

                                           B.

       Bates, for his part, argues that the pretrial prayer violated the Establishment

Clause and that his lawyer, Theodore Bowers, rendered ineffective assistance of

counsel for not recognizing and objecting to the Establishment Clause violation.

See Pet’r’s Br. at 27 (“[T]here was no constitutionally legitimate basis for the trial

judge to inject religious prayers into the jury’s choice of life or death in a capital

case.”). To support that claim, Bates cites cases from various jurisdictions



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involving religious invocations at public assemblies, and he consistently describes

his Strickland claim as being derivative of an underlying Establishment Clause

violation.

      The trouble for Bates here is that the Establishment Clause is not a trial

right; a violation of the Establishment Clause at trial does not, standing alone,

enable a criminal defendant to challenge his conviction. A proceeding might be

thoroughly sectarian without being unfair for due process purposes, just as a

proceeding might be thoroughly unfair without being violative of the

Establishment Clause. They are simply different legal standards. To be sure, a

person compelled by the state to be present at a sectarian proceeding can have

standing to pursue a civil challenge to that proceeding under the Establishment

Clause, see, e.g., McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844, 125 S. Ct.

2722, 162 L. Ed. 2d 729 (2005) (considering a civil challenge to officials posting

the Ten Commandments on the walls of courthouses); North Carolina Civil

Liberties Union Legal Foundation v. Constangy, 947 F.2d 1145 (4th Cir. 1991)

(entertaining a civil application to permanently enjoin a judge from opening court

with a prayer), but for the criminal defendant the religious character of a trial is

relevant only to the extent that it affects the fundamental fairness of the

proceeding, and no special standards govern our analysis when the alleged

unfairness stems from religion, as opposed to some other factor.



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      A defendant’s right to due process is violated if he is sentenced based on

“factors that are constitutionally impermissible or totally irrelevant to the

sentencing process, such as for example the race, religion, or political affiliation of

the defendant.” Zant v. Stevens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d

235 (1983). When religion is the basis of a due process challenge, courts look to

whether the religious features of the trial substantially impaired the fairness of the

proceeding; they do not ask, in the abstract, whether the events at trial violated the

Establishment Clause. See, e.g., United States v. Bakker, 925 F.2d 728, 740–41

(4th Cir. 1991) (vacating a sentence where “the trial judge abused his discretion

and violated due process by factoring his own sense of religiosity and victimization

into the sentence he imposed,” and where the record showed “the explicit intrusion

of personal religious principles as the basis of a sentencing decision” (emphasis

added)); see also Deyton v. Keller, 682 F.3d 340, 348 (4th Cir. 2012) (“To the

extent that the [trial] judge quoted from the Bible, there is . . . no credible argument

that he impermissibly rested the chosen term of imprisonment on scripture and not

on [state law].”); United States v. Hoffman, 626 F.3d 993, 999 (8th Cir. 2010)

(“Nothing suggests that the district court’s personal view of religion in any way

influenced an aspect of [the defendant’s] sentence.”); United States v. Traxler, 477

F.3d 1243, 1249 (10th Cir. 2007) (concluding that a due process challenge to a

judge’s religious comments applies “only to those circumstances where



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impermissible personal views expressed at sentencing were the basis of the

sentence” (emphasis added)); Arnett v. Jackson, 393 F. 3d 681, 688 (6th Cir. 2005)

(denying habeas relief where the trial judge had referred to a passage from the

Bible, but “[t]here [was] nothing in the totality of the circumstances of

[defendant’s] sentencing to indicate that the trial judge used the Bible as her final

source of authority” (quotation marks omitted)); United States v. Walker, 696 F.2d

277, 282 (4th Cir. 1982) (“[The defendants] are not entitled to such a reversal [of

their convictions] unless the content of the prayer substantially impaired the

fairness of their trial.”).

       Bates, in this case, wastes most of his habeas petition trying to relitigate the

pretrial prayer as a violation of the Establishment Clause, and then—almost as an

afterthought—connects the alleged First Amendment violation to his counsel’s

supposed negligence in failing to notice and object to the Establishment Clause

violation. See Pet. for Writ of Habeas Corpus, Doc. 1, at 54 (Mar. 16, 2009) (“If

the mere installation of a statue bearing the Ten Commandments in a courthouse

was sufficient for the United States Supreme Court to uphold an injunction barring

the display, then certainly a prayer invoking God’s blessing upon the jury and

judge given by the minister of the victim in Mr. Bates’s capital trial violated the

First Amendment along with Mr. Bates’s rights guaranteed under the Sixth, Eighth,

and Fourteenth Amendments.”). This argument simply misses the mark: the



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sectarian aspects of a trial are relevant only to the extent they make the trial unfair,

and on the fairness question the Establishment Clause has nothing to teach us. It

follows that Bates’s lawyer could not be ineffective for failing to raise an

Establishment Clause claim, because an Establishment Clause claim, by itself,

would not help his client anyway.

                                           C.

      Judge Wilson, in his concurring opinion, wants to rehabilitate Bates’s

Strickland claim by recasting it as an argument about fairness: Judge Wilson says

“the jury was far less likely to be able to give Bates a fair trial after the prayer and

the husband’s testimony” were combined, and “any competent counsel would have

objected.” Wilson, J., Op. at 2 n.1. All of us on the panel agree that Bates is not

entitled to relief on that claim, either, because Bates can cite no Supreme Court

case supporting it, and therefore cannot show that the Florida Supreme Court

decision denying relief was contrary to, or an unreasonable application of, clearly

established law. See 28 U.S.C. § 2254(d)(2). Judge Wilson nonetheless volunteers

that—were the issue to present itself on de novo review—he would readily grant

relief on Bates’s Strickland claim because he thinks the pretrial prayer “inserted

God into Bates’s trial, and the husband’s testimony made clear whose side God

was on,” resulting in “obvious and significant prejudice” that all competent

lawyers would object to. Wilson, J., Op. at 2, 6.



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       If that were an accurate description of what happened at trial, we might

agree with Judge Wilson that Bates’s trial was unfair. But Judge Wilson’s account

bears little resemblance to the trial transcript, which he does not quote from or cite

to in making his argument. We will start by reprinting the parts of the trial

transcript actually at issue, so as to ground the discussion in the record, and then

consider the extratextual glosses Bates and Judge Wilson offer.

                                               1.

       On January 17, 1983, just before the start of voir dire, the trial judge asked

the prospective jurors to stand as Reverend N.B. Langford “of the First Baptist

Church” delivered the following prayer:

       May we pray together. Father, this is a beautiful day that you’ve
       given to each of us, and we thank you for the privilege that’s ours to
       enjoy all the bounties that you’ve given to each of us. Lord, we pray
       for the seriousness of the situation with which we’re confronted, and
       we ask for your wisdom and your guidance, Father, upon all who are
       involved, we pray for the Judge as he presides for your special
       wisdom and for your guidance to do upon his life. Thank you, Father,
       that we live in a country that has freedom for all, and we ask now for
       your leadership and your blessings upon the judicial system, for in
       Christ’s name I pray, Amen.

Trial Record, Vol. I at 1211 (Jan. 17, 1983). So far, we’d say, so good. One could

absolutely question the wisdom or propriety of starting trials this way 2—and no

       2
          See, e.g., Marsh v. Chambers, 463 U.S. 783, 805–06, 103 S. Ct. 3330, 3343, 77 L. Ed.
2d 1019 (1983) (Brennan, J., dissenting) (“[N]o American should at any point feel alienated from
his government because that government has declared or acted upon some ‘official’ or
‘authorized’ point of view on a matter of religion.”); United States v. Walker, 696 F.2d 277, 282
(4th Cir. 1982) (“The practice [of pretrial prayer] is a needlessly risky one. Because each


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one on this panel is suggesting that the trial judge here was observing some kind of

best practice—but as far as prayers go, this is pretty bland stuff. The prayer did

not incite the jury to vengeance or vindictiveness, but rather called for wisdom and

solemnity “upon all who are involved”—including the defendant.3 One day later,

after the jury had been selected and the guilt phase begun, the State called the

victim’s husband as its first witness at trial. During that testimony, the prosecutor

and the husband had the following exchange:

       [THE STATE]: When was the last time you saw [the victim, Renee
           White] alive?
       [HUSBAND]: June 14th, 1982, approximately between the hours of
           12 and 12:30.
       [THE STATE]: Where was that at?
       [HUSBAND]: At our residence, 602 1/2 Colorado Avenue.
       [THE STATE]: Was this for lunch?
       [HUSBAND]: Yes.




minister composes his own prayer, its content is beyond the control of the judge. A minister,
knowing little of the ground rules for jury trials, may inadvertently say something that is
prejudicial to a defendant. . . . We think the practice should be discouraged.”).
       3
          Bowers later testified at the collateral evidentiary hearing that it did not even occur to
him to object to the prayer because he thought it harmless.

       [THE STATE]: Okay. The prayer by Reverend Langford was neutral, wasn’t it?
       [BOWERS]: I’ve read the prayer from the motion, I didn’t—I didn’t think
             nothing of the prayer.
       [THE STATE]: Right. It didn’t to you seem to encourage anybody to convict
             this defendant or to acquit him, either way, did it?
       [BOWERS]: The prayer itself, no.
       [THE STATE]: Just kind of asked for the Lord’s guidance in making a wise
             decision, something about like that?
       [BOWERS]: It speaks for itself, yes.

Postconviction Record, Vol. III at 353.


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      [THE STATE]: Was it usual procedure for you and her to have
          lunch during the week?
      [HUSBAND]: Yes, we usually would meet at home.
      [THE STATE]: What was her normal lunch hour?
      [HUSBAND]: Between 12 and 1 each day.
      [THE STATE]: When was the last time you saw her?
      [HUSBAND]: June 17th, at First Baptist Church before they closed
          the coffin.
      [THE STATE]: This was at the funeral services?
      [HUSBAND]: Yes, at the funeral services.
      [THE STATE]: On June 14th, 1982, was Renee an employee of Jim
          Dickerson?
      [HUSBAND]: Correct.
      [THE STATE]: What is the name of his organization?
      [HUSBAND]: He represents State Farm Insurance Agency, Jim
          Dickerson, State Farm Insurance Agency.
      [THE STATE]: And where is it located?
      [HUSBAND]: On Highway 77.
      [THE STATE]: And that is in Bay County, Florida?
      [HUSBAND]: Correct.
      [THE STATE]: How many employees did Mr. Dickerson have?
      [HUSBAND]: One.
      [THE STATE]: And that was Renee?
      [HUSBAND]: And that was Renee.

Trial Record, Vol. I. at 291–93 (Jan. 18, 1983).

      Somewhere in this testimony, Judge Wilson claims God was inserted into

trial on the victim’s side, but we don’t see it. Instead, we see the prosecutor

establishing the husband as a fact witness and asking him about the day of the

crime. The prosecutor asked the husband about his last contact with his wife, and

the husband took that question very literally and said that he last “saw” his wife in

a coffin. The prosecutor clarified that the husband was talking about the funeral,

and then rerouted the questioning back to the circumstances of the crime. And the

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husband had a great deal to say about that: He had lunch with his wife a mere half

hour before her murder; he knew about her work schedule and her habits; he knew

what clothes she had worn that day; and most importantly, he could identify her

wedding ring, which had been (according to the coroner) violently wrenched from

her hand while she lay bleeding to death in the woods behind her office, and which

Bates had been carrying in his pocket when the police saw him emerge from the

woods just minutes after the murder. All told, two things jump out from this

testimony. The first is that the prosecutor was not trying to elicit the victim’s

church affiliation, and he certainly did not dwell on it; he had other points to make.

The second is that, considering everything else that was going on in the husband’s

testimony, the one throwaway reference to the funeral was probably the detail least

likely to engage the jury’s attention.

      The other point worth making here is how little textual support the transcript

offers for Judge Wilson’s claim that “this sequence of events focused the jury on

the need for justice for the victim” because “[w]ithout a guilty verdict, the jury

could do nothing for the God-fearing victim or her grieving husband.” Wilson, J.,

Op. at 1–2. Nobody said anything even remotely like that at trial. Neither the

husband nor the prosecutor mentioned Reverend Langford or the pretrial prayer,

and the husband’s singular offhand mention of First Baptist Church does not

appear ever again in the transcript. There was no mention of God or “the need for



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justice for the victim.” We think, instead, that the husband’s testimony is what it

appears to be: a factual statement, made in passing, in response to one question

asked in the course of a three-day trial. Most likely, the jury didn’t think about it at

all. Certainly there’s no direct evidence that they did. And so, attempting to show

unfairness, both Bates and Judge Wilson go far beyond the record.

                                           2.

      Bates, delving deep between the lines, asserts that the husband’s testimony

“was specifically elicited by the prosecution to make that connection between

Reverend Langford of the First Baptist Church and [the victim],” Pet’r’s Br. at 31,

but he offers no evidence for that extraordinary claim apart from the transcript

itself, which does not even circumstantially support his conspiracy theory. Even

apart from that lack of evidence, Bates’s suspicions are implausible. For one thing,

if the prosecution was really devious enough to “plant” the husband’s testimony,

surely they would have made better use of it, either by lingering over the First

Baptist connection on direct examination or by referencing the church or the

testimony later in closing argument. Otherwise, this supposed “strategy” would be

so subtle as to be self-defeating. Consider what this gambit would require of the

jury: that (1) the preternaturally alert jurors zero in on the husband’s offhand

mention of the church, (2) instantly connect that to the Reverend’s prayer the day

before, (3) know, or at least suspect, that the husband and the Reverend were



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members of the same First Baptist Church,4 and (4) take all of that—somehow—as

an invitation to ignore their oaths as jurors and find Bates guilty regardless of the

evidence against him. If that was really the plan, the prosecution was playing a

very long game, indeed.

       Judge Wilson, for his part, takes the position that those connections are not

so implausible once you account for what he calls “the context of a racially

charged environment.” Wilson, J., Op. at 2 n. 1; see also Pet. for Habeas Corpus,

Doc. 1, at 55 (“Mr. Bates is black while the victim, and her minister who gave the

invocation, and the entire guilt phase jury were white.”). On this account, the

courtroom’s ambient racial tension is the missing link that explains how a facially

neutral prayer could fuse with a picayune detail from the husband’s testimony to

prejudice a defendant in a “high profile, racially charged murder case in a small

community.” Wilson, J., Op. at 4. But this dog-whistle theory 5 of prejudice is just

as speculative as Bates’s prosecutorial-conspiracy theory, and we don’t know why


       4
           Today, there are at least four churches in Panama City, Florida, that call themselves
First Baptist Church. See ChurchSearch, Southern Baptist Convention,
http://www.sbc.net/churchsearch/results.asp?query=Panama+City%2C+FL (last visited Aug. 4,
2014). That number was probably different in 1983, when Bates was on trial, but we don’t
know. And that is part of the problem: even if we assume, as the parties do, that Reverend
Langford and the husband were talking about the same First Baptist Church, Bates never
explains how the jurors would have known that. Even Bowers—who was from the area and
familiar with its churches—wasn’t sure when asked about it years later at the collateral hearing.
See Postconviction Record, Vol. III at 374. (“I didn’t know [at the time that] the deceased—
well, I still don’t know, but I presume, was a member of that church.”) (emphasis added).
         5
           See William Safire, Safire’s Political Dictionary 190 (Oxford University Press 2008)
(defining “dog-whistle politics” as “[t]he use of messages embedded in speeches that seem
innocent to a general audience but resonate with a specific public attuned to receive them.”).


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Judge Wilson is so confident in asserting it; he wasn’t in the courtroom. Bowers,

the lawyer, was in the room, and was familiar with Panama City, its churches, and

its people. And, “[u]nlike a later reviewing court, the attorney observed the

relevant proceedings, knew of materials outside the record, and interacted with the

client, with opposing counsel, and with the judge.” Harrington v. Richter, __ U.S.

__, 131 S. Ct. 770, 788, 178 L. Ed. 2d 624 (2011). Bowers was, in other words,

better positioned than any of us to evaluate what effect the husband’s testimony

might have in the moment, and he did not see any reason to object. 6 The language

about “racial tension” comes from testimony Bowers gave seven years later, at the

collateral hearing, with the encouragement of Bates’s new collateral counsel.

Judge Wilson says “Bowers testified that the jurors could have drawn a prejudicial

conclusion” from the husband’s testimony, Wilson, J., Op. at 4 n. 2, and indeed

that is exactly what Bowers said: they could have, a possibility that Bowers also

described, in the same answer, as “pure speculation.” Here is that exchange:

       [COUNSEL FOR PETITIONER]: Now, [the State] asked you
           certain questions about the prayer that was said in court. And
           you’ve indicated you could relay what the impact of the prayer
           was on the jury. I don’t think he let you answer that. Let me
           let you answer that. From your perspective at the time, what
           was the impact of the jury hearing that from the victim’s
           minister?


       6
         Nor was Bowers simply asleep at the switch. The transcript shows him objecting to
testimony—for lack of relevance—just a few pages later. See Trial Record, Vol. I. at 300 (Jan.
18, 1983).


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      [BOWERS]: All right, at that time I didn’t know the deceased—well,
          I still don’t know, but I presume, was a member of that church.
          It’s a prominent church in this area, one of the largest Baptist
          churches in this area. Nothing that the minister might have said
          or intended, but a person sitting on the jury may have
          assumed—this is pure speculation—connected these things
          together. And given a situation where you do have a racial
          tension type thing, it could produce a result. Negative,
          prejudicial.

Postconviction Record, Vol. III at 374–75.

      “Pure speculation” does not establish a due process violation. There is no

question that under the Constitution “a defendant has the right to an impartial jury

that can view him without racial animus, which has so long distorted our system of

criminal justice.” Georgia v. McCollum, 505 U.S. 42, 58, 112 S. Ct. 2348, 2358,

120 L. Ed. 33 (1992). But it is equally well established that courts may not

entertain “the divisive assumption—as a per se rule—that justice in a court of law

may turn upon the pigmentation of skin, the accident of birth, or the choice of

religion.” Id. at 59, 112 S. Ct. at 2359. The record simply does not support the

claim that God was injected into the trial on the victim’s side, and we cannot fill in

the gaps with the “divisive assumption” that jurors convicted Bates on account of

his race, as opposed to the evidence presented against him—evidence that even

Bates seems to concede was overwhelming. See Pet. for Writ of Habeas Corpus,

Doc. 1, at 30–36 (“[Part] C. Understanding the Offense”).




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      Bates, of course, is not making a due process claim. The claim, instead, is

that he received ineffective assistance of counsel when his lawyer did not make the

due process objection on his behalf at trial. Specifically, the claim is that a

competent lawyer watching events unfold at trial would have, at some point,

moved for a mistrial. We disagree.

                                          D.

      When a petitioner says his attorney was ineffective for failing to make an

objection, Strickland requires proof that the attorney fell below the standard of

“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at

688, 104 S. Ct. at 2065. This test “has nothing to do with what the best lawyers

would have done. Nor is the test even what most good lawyers would have done.

We ask only whether some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted at trial.” Waters v. Thomas, 46 F.3d 1506,

1512 (11th Cir. 1995) (en banc).

      Decisions about whether to object—and when, and in what form—are

tactical choices consigned by Strickland to a lawyer’s reasoned professional

judgment. Good lawyers, knowing that judges and juries have limited time and

limited patience, serve their clients best when they are judicious in making

objections. In any trial, a lawyer will leave some objections on the table. Some of

those objections might even be meritorious, but the competent lawyer nonetheless



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leaves them unmade because he considers them distractive or incompatible with

his trial strategy.

       In this case, as with any Strickland claim, we start by “reconstruct[ing] the

circumstances of counsel’s challenged conduct” and “evaluat[ing] the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. We imagine Bowers, the defense lawyer, sitting in the courtroom and

watching the victim’s husband testify about the day of his wife’s murder. During

this testimony, the husband mentions that her funeral took place at First Baptist

Church, and Bowers recalls that one day earlier Reverend Langford—also of First

Baptist Church, or at least a First Baptist Church—had delivered a prayer at the

start of jury selection. What should Bowers do?

       We must assume, for the sake of argument, that in this hypothetical Bowers

shares Judge Wilson’s intuition about the possibility of prejudice on these facts. In

real life, of course, it never even occurred to Bowers to object, first because it was

not obvious to him (and, therefore, probably not obvious to the jury) that the

husband was talking about the same church the Reverend belonged to—indeed,

that still is not obvious, even today—and second because Bowers thought “nothing

of the prayer” in the first place. 7 But let us proceed on the assumption that a


       7
          Judge Wilson says the fact that Bowers “never even considered moving for a mistrial is
all the more reason to believe that his failure to object was incompetent and not the product of
thoughtful consideration,” Wilson, J., Op. at 7–8, but we think that argument is obviously


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competent attorney would at least think something of the prayer. In considering

his options, Bowers would keep two additional points in mind. First, a mistrial is

an extraordinary remedy—available only when a trial has broken down so

completely as to be wholly unreliable—and judges are (rightly) reluctant to use it.

A competent lawyer knows, therefore, that if he’s going to move for a mistrial, he

needs a good reason, lest he waste time, lose credibility, and undermine his client

by making half-baked arguments. Second, Bowers is not aware of any case that

might support his motion for a mistrial, even tangentially. That assumption might

sound extreme, but we believe it to be fair because neither Judge Wilson nor Bates

cite any cases to support a mistrial motion, and if they cannot produce authority to

support their position—despite having time to consider and research the

question—it hardly seems fair to expect a trial attorney to develop the argument

wholesale on the spot. Judge Wilson, on this point, says only that he “believe[s]

that many trial judges in Florida would grant a motion for a mistrial” on these

facts. Wilson, J., Op. at 5 n.3. That might be true; we have no idea. What we do

know is that isn’t the standard for Strickland performance. That some judge,

somewhere in Florida, might buy an argument does not mean that all lawyers in all




circular: a competent attorney would object, Judge Wilson says, and this attorney did not object,
so he must have been incompetent. The conclusion is just a restatement of the premise.


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cases must make that argument. With those limitations in mind, Bowers would

think through his options.

       He could do the dramatic thing and rise to make a speaking objection, but

that might be unwise. For one thing, he would be interrupting a grieving

husband’s recollection of his wife’s murder—which is no way to win friends on

the jury—and for another, he would be calling attention to the very thing he wants

to suppress: the victim’s church affiliation. If the jurors had not made the

connection before between Reverend Langford and the husband’s reference to First

Baptist Church, they would certainly make that connection now, with Bowers

spelling it out for them in his objection. Objecting might make things worse by

highlighting what would have otherwise been an entirely unremarkable and

unmemorable detail.8

       Judge Wilson, anticipating this argument, “agree[s] with [me] that

interrupting either the prayer or the husband’s testimony with an immediate

       8
           This, of course, is a problem inherent to objections: in articulating the objection, the
lawyer must underscore the substance of the thing he seeks to correct. There is always the risk
that the lawyer will object unsuccessfully and, in the process, only emphasize damaging
testimony or evidence. In deciding whether to object, then, lawyers are always making a
calculation, weighing the importance of the objection against the risk of failure. Those
calculations almost never yield an objectively “correct” answer, which is why Strickland defers
to the considered professional judgment of licensed attorneys. See Strickland v. Washington,
466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984) (“Representation is an art,
and an act or omission that is unprofessional in one case may be sound or even brilliant in
another.”); Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)
(“Different lawyers have different gifts; this fact, as well as differing circumstances from case to
case, means the range of what might be a reasonable approach at trial must be broad. To state
the obvious: the trial lawyers, in every case, could have done something more or something
different.”).


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objection would have been imprudent,” but he suggests that the objection might

come “after the husband’s testimony concluded.” Wilson, J., Op. at 4–5. But wait

a minute: we thought the whole point of objecting was that the husband’s

testimony caused “obvious and significant prejudice” to Bates, and that Bowers

“sat idly by as the prosecution stacked the deck against his client” and ignored “the

jury’s mounting prejudice against him.” Id. at 6, 8. If the testimony was really

that bad—if it had so undermined the fairness of the proceedings that only the

extraordinary remedy of a mistrial would do—then how can Bowers afford to

wait?

        In fact, delaying the objection involves a whole new set of tactical problems.

The first is the contemporaneous-objection rule, which “enforce[s] the requirement

that parties lodge timely objections to errors at trial so as to provide the [trial] court

with an opportunity to avoid or correct any error, and thus avoid the costs of

reversal and a retrial.” United States v. Turner, 474 F.3d 1265, 1275 (11th Cir.

2007). If Bowers waits too long to object, the trial judge can overrule the objection

as untimely, and “where . . . a defendant fails to preserve an evidentiary ruling by

contemporaneously objecting, [appellate] review is only for plain error.” Id.

        Not to worry, Judge Wilson says: the contemporaneous-objection rule is not

so rigid that it prevents Bowers from waiting a little while—perhaps until a

“natural breaking point” in the proceedings—to lodge his objection, “particularly if



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counsel explains the reason for any delay.” Wilson, J., Op. at 5. Maybe, but then

again, maybe not: trial judges have a lot of discretion in ruling a belated objection

untimely, and if Bowers sits on his objection until the close of the husband’s

testimony, the trial judge can—and very likely will—call it untimely, a decision

our court would then only review for plain error. Turner, 474 F.3d at 1275. In

deciding the timeliness of Bowers’s objection, the trial judge will doubtlessly

wonder about the delay: “Hold on,” he might ask, “you’re telling me, on the one

hand, that this testimony was so disastrously prejudicial to your client that it makes

the whole trial irreparably unfair, but you’re only bringing it to my attention now,

after the witness was excused?” The judge might assume that Bowers is not all

that serious, after all, in his objection, or that Bowers merely wants to preserve the

issue for appeal, or that Bowers is “sandbagging the court—remaining silent about

his objection and belatedly raising the error only if the case does not conclude in

his favor.” Cf. Puckett v. United States, 556 U.S. 129, 134, 129 S. Ct. 1423, 1428,

173 L. Ed. 2d 266 (2009) (quotation marks omitted). No doubt the trial judge

might agree with Judge Wilson and say that Bowers’s reason for waiting was a

good one, but Bowers, sitting at counsel’s table, has no way of knowing that.

From his perspective, an objection presents an inescapable dilemma: he can either

object immediately—which ensures that his objection is timely, but also requires

him to interrupt the husband’s testimony—or he can wait and try to object later,



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which avoids some of the practical problems of an immediate objection, but risks

losing the argument entirely to the contemporaneous-objection rule. Or he might

decide that it isn’t worth objecting at all.

      We want to be clear: our point is not that it would be wrong for Bowers to

object. Our point is only that the answer is not obvious. Reasonable lawyers could

disagree about the best way forward. On habeas review, we need only reiterate

that “it does not follow that any counsel who takes an approach we would not have

chosen is guilty of rendering ineffective assistance.” Waters, 46 F.3d at 1522.

Bowers, in this hypothetical, faces a choice where his conduct is “neither directly

prohibited by law nor directly required by law,” which is to say: the choice is

strategic, and “a court must not second-guess counsel’s strategy.” Chandler, 218

F.3d at 1314 n.14.

      Judge Wilson’s wait-and-see approach also depends on “the distorting

effects of hindsight,” contra Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, as it is

only in retrospect that we know Bowers could have safely waited until the

conclusion of the husband’s testimony. Bowers, sitting in the courtroom and

watching events unfold in real time, does not have that luxury because he does not

know what the prosecutor’s next question will be. For all he knows, the worst is

yet to come—and if things had gotten worse, and if Bowers had adopted Judge

Wilson’s wait-and-see strategy, we do not doubt that Bates would now be before



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our court to complain of ineffective assistance because his attorney waited too long

to object. Habeas lawyers can play this game all day—and they do. See Waters,

46 F.3d at 1514 (“The widespread use of the tactic of attacking trial counsel by

showing what ‘might have been’ proves that nothing is clearer than hindsight—

except perhaps the rule that we will not judge trial counsel’s performance through

hindsight.”).

      Even putting aside the practical problems with moving for a mistrial, our

hypothetical defense attorney would also consider the substance of his objection

before proceeding, and consider how likely he is to prevail. Let’s imagine that

Bowers waits and finds an opportune time to approach the bench and move for a

mistrial outside the presence of the jury. We suppose, in some parallel universe,

that he might get lucky and secure a mistrial then and there, but we doubt it very

much: the Reverend’s prayer was generic, the husband’s reference to church was

made in passing, and Bowers can cite no authority, from any jurisdiction, to

convince the judge that the husband’s testimony requires the extraordinary remedy

of a mistrial. If the judge is feeling generous he might offer to give the jury a

curative instruction of some kind, but for Bowers that would be the worst of both

worlds. His entire concern is that the jury will link the Reverend to the victim, and

a curative instruction will accomplish that more definitively than anything the jury

has already heard. And so, having failed to get a mistrial and having declined the



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judge’s offer of a curative instruction, Bowers returns to counsel’s table empty-

handed, and the prosecutor resumes his direct examination of witnesses in front of

an even-more bewildered jury. A competent attorney could reasonably decide that

this whole gambit would be fruitless, and possibly counterproductive.

      Judge Wilson’s answer to this is that Bowers had nothing to lose: “[A]t

worst, Bowers faced a win-no lose situation. Had he raised the objection, he might

have secured a mistrial and spared his client from prejudice, but at worst, his

objection would have been overruled.” Wilson, J., Op. at 6. Judge Wilson does

not cite a single case to support this “win-no lose situation” test of Strickland

performance, which—if it were the law—would require defense lawyers to make

themselves perpetual objection machines, lest some later reviewing court identify a

conceivably plausible objection that counsel failed to raise. Fortunately, Judge

Wilson’s position is not the law: “[The Supreme] Court has never established

anything akin to the Court of Appeals’ ‘nothing to lose’ standard for evaluating

Strickland claims.” Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411,

1419, 173 L. Ed. 2d 251 (2009); see also Chandler v. United States, 218 F.3d 1305,

1319 (11th Cir. 2000) (en banc) (“Counsel is not required to present every

nonfrivolous defense . . . . Considering the realities of the courtroom, more is not

always better. Stacking defenses can hurt a case. Good advocacy requires




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‘winnowing out’ some arguments, witnesses, evidence, and so on, to stress

others.”).

      Judge Wilson also says that a lawyer’s fear of being overruled cannot excuse

an attorney’s decision to forego “the best arguments [he] can make” on his client’s

behalf. But, first of all, the Strickland test “has nothing to do with what the best

lawyers would have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer could have acted, in the

circumstances, as defense counsel acted at trial.” Waters, 46 F.3d at 1512

(citations omitted); see also LeCroy v. United States, 739 F.3d 1297, 1313 (11th

Cir. 2014) (“We do not measure counsel against what we imagine some

hypothetical ‘best’ lawyer would do.”). Second, Judge Wilson never substantiates

the assumption behind this claim, which is that an objection here really is the

“best” argument Bowers could make under the circumstances. Neither Bates nor

Judge Wilson cites cases to support a hypothetical mistrial motion, nor do they

even articulate what, exactly, Bowers is supposed to say when it comes time to

object. We thus have no basis on which to say that objecting would be the “best”

argument; we can only say, at most, that it might be one argument, and a long shot

at that. See Knowles, 556 U.S. at 125, 129 S. Ct. at 1421 (concluding that

attorneys are not required to raise a defense that is “almost certain to lose.”); Diaz




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v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2006) (concluding

that a lawyer “is not ineffective for failure to raise a meritless argument.”).

      All of this brings us back, one last time, to Bowers sitting in the courtroom

and listening to the husband’s testimony. With the contemporaneous-objection

clock ticking, and mindful of the wisdom of objecting judiciously, he must decide

whether to interrupt the proceedings and object so he can roll the dice on a long-

shot mistrial motion, for which he can cite no legal authority, that might end up

backfiring by highlighting testimony the jury might have otherwise ignored

completely. Can we imagine that there is “some reasonable lawyer” out there,

somewhere, who would survey this situation and decide, as Bowers did, to stay

seated? Waters, 46 F.3d at 1512. We say, with gusto, that we can. There is not a

“right” answer here that all attorneys must follow in all cases. In every trial,

attorneys have to make hundreds of tiny ambiguous decisions like this one, where

they must decide to act or react or not act at a moment’s notice in circumstances

where their legal position is uncertain. Bolender v. Singletary, 16 F.3d 1547, 1557

(11th Cir. 1994) (“[T]he craft of trying cases is far from an exact science; in fact, it

is replete with uncertainties and obligatory judgment calls.”). Any one of those

decisions could later be pinned beneath the appellate microscope, dissected, and

made to look foolish by collateral counsel, who—unlike trial attorneys—have

years and sometimes decades to craft dazzling new theories of defense. But the



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trial lawyer has to play the hand he’s dealt in circumstances that are inevitably not

ideal; money, time, and energy are finite, and sometimes the facts or law or both

are stacked against him. Our task is “not to grade counsel’s performance,”

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, or ask whether the attorney could

have performed better, or ask whether some novel, unenacted strategy might have

led to a better outcome for the client. Strickland speaks only to the small class of

cases in which “counsel was not functioning as the ‘counsel’ guaranteed by the

Sixth Amendment” at all, 466 U.S. at 687, 104 S. Ct. at 2064, and does not operate

as a catch-all mechanism for “fixing” trials we might have conducted differently.

See White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992) (“[W]e are

interested in whether the adversarial process at trial, in fact, worked adequately.”).

The record in this case demonstrates that Bowers labored diligently to defend his

client. He subjected the state’s case to adversarial testing. And he lost in the face

of overwhelming evidence that his client committed a terrible crime. 9 That is bad

news for Bates, but it is not a Sixth Amendment violation.


       9
          The overwhelming evidence of Bates’s guilt also makes it obvious that Bates cannot
show Strickland prejudice. Even if one assumes that Bowers was incompetent for failing to
object to the husband’s testimony, “[a]n error by counsel . . . does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” 466 U.S. at 691,
104 S. Ct. at 2066.
        In evaluating whether an attorney’s error had an effect on the judgment, the question is
not whether the defendant could have temporarily evaded conviction by demanding a new trial.
Rather, “[w]hen a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Id. at 695, 104 S. Ct. at 2068–69 (emphasis added).


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                                              IV.

       Bates also contends that his right to a fair capital sentence proceeding, as

articulated in Simmons v. South Carolina, was violated at his 1995 resentencing by

the trial court’s refusal to instruct the jury either that: (1) it could impose a

sentence of life without the possibility of parole under the 1994 amendment to Fla.

Stat. § 775.082; (2) he had agreed to waive parole eligibility under the pre-

amendment version of that statute; or (3) he had already been sentenced to two life

terms plus fifteen years on his other counts of conviction, all of which would run

consecutively to any sentence he received for murder. In support of this claim,

Bates asserts that retroactively applying the 1994 version of § 775.082 to the

murder he committed in 1982 would not violate the constitutional prohibition

against ex post facto laws because it would not work to his disadvantage and he

had otherwise agreed to waive any ex post facto rights. Because he had agreed to

waive his eligibility for parole under the pre-amendment version of § 775.082,

Bates maintains that he was entitled under Simmons “to an accurate jury




        Here, then, even if Bowers had objected, and even if he had gotten a new trial with a new
jury, he would still have faced the huge body of inculpatory evidence offered by the State. The
police encountered Bates emerging from the woods just minutes after the murder, his clothes
stained with the victim’s blood. They found the victim’s wedding ring in his pocket. Next to her
body they found his knife case, and the victim’s fatal stab wounds matched his knife. The most
likely outcome of a new trial would still be the same result: a guilty verdict.


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instruction” that a sentence of life without the possibility of parole could be

imposed in lieu of the death penalty. 10

       In Simmons, the Supreme Court held that “where the defendant’s future

dangerousness is at issue, and state law prohibits the defendant’s release on parole,

due process requires that the sentencing jury be informed that the defendant is

parole ineligible.” 512 U.S. at 156, 114 S.Ct. at 2190 (plurality opinion); see also
       10
            In his federal habeas petition, Bates raised a distinct claim that the resentencing court
violated the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954 (1976), by preventing
him from presenting various types of relevant mitigating evidence that “might serve as a basis
for a sentence less than death,” including the consecutive sentences he had received for his non-
homicide convictions. Although the COA we granted is broad enough to encompass that claim,
at least insofar as it relies on evidence of Bates’ other consecutive sentences, Bates has
abandoned it by failing to “plainly and prominently” argue on appeal that the resentencing court
was required under Lockett to admit evidence of his other consecutive sentences as relevant
mitigating circumstances. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (“A party fails to adequately brief a claim when he does not plainly and prominently
raise it, for instance by devoting a discrete section of his argument to those claims.”) (quotation
marks omitted); United States v. Willis, 649 F.3d 1248, 1254 (11th Cir. 2011) (“A party seeking
to raise a claim or issue on appeal must plainly and prominently so indicate. . . . Where a party
fails to abide by this simple requirement, he has waived his right to have the court consider that
argument.”) (quotation marks and citation omitted). Bates did include a single citation to
Lockett in his appellate brief, but that passing reference is not enough to preserve the issue for
appellate review. See Sapuppo, 739 F.3d at 681–82 (explaining that an “appellant abandons a
claim when he either makes only passing references to it,” “raises it in a perfunctory manner
without supporting arguments and authority,” or buries it within his main arguments). And
contrary to Judge Wilson’s concurring opinion, the fact that Bates broadly contends that the state
courts’ refusal to admit such evidence was unconstitutional is not sufficient to place a Lockett-
based claim before us. Bates’ claim centers on the constitutional rule announced in Simmons,
not the one set forth in Lockett. A petitioner who, for example, challenges the admission of
evidence as violative of his constitutional rights under the Fourth Amendment cannot be said to
have properly preserved any and all constitutional challenges to that evidence, whether based on
the Fifth Amendment right against compelled self-incrimination or the Sixth Amendment right to
confront adverse witnesses.

       In any event, as we discuss later, the Supreme Court’s decisions in Simmons and
Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113 (2002), which directly deal with evidence
concerning parole ineligibility, provide enough basis for reasonably concluding that the
admission of evidence of other consecutive sentences at a capital sentence hearing is not
mandated by clearly established federal law.


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id. at 178, 114 S.Ct. at 2201 (O’Connor, J., concurring) (“Where the State puts the

defendant’s future dangerousness in issue, and the only available alternative

sentence to death is life imprisonment without the possibility of parole, due process

entitles the defendant to inform the capital sentencing jury . . . that he is parole

ineligible.”). The basis of the Court’s holding was that the State “may not mislead

the jury [about the defendant’s future dangerousness] by concealing accurate

information about the defendant’s parole ineligibility” under state law. Id. at 165

n.5, 114 S.Ct. at 2194 n.5 (plurality opinion). At the same time, however, the

Court endorsed the general proposition that where “parole is available” as a matter

of state law, courts should “defer to a State’s determination as to what a jury

should and should not be told about sentencing” because “how the jury’s

knowledge of parole availability will affect the decision whether or not to impose

the death penalty is speculative.” Id. at 168, 114 S.Ct. at 2196 (plurality opinion);

see also id. at 176, 114 S.Ct. at 2200 (O’Connor, J., concurring) (“The decision

whether or not to inform the jury of the possibility of early release is generally left

to the States. In a State in which parole is available, the Constitution does not

require (or preclude) jury consideration of that fact.”) (citation omitted).

      Since Simmons was decided, the Supreme Court has declined to extend its

holding to cases where parole ineligibility has not been conclusively established as

a matter of state law. See Ramdass v. Angelone, 530 U.S. 156, 165, 120 S.Ct.



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2113, 2119 (2002) (plurality opinion). In Ramdass, the Court explained that the

Simmons rule applies only “when a defendant is, as a matter of state law, parole

ineligible at the time of his trial,” and it refused to adopt a “functional approach” to

parole ineligibility — one dependent on whether a defendant “would, at some

point, be released from prison” — because that approach would require courts and

juries to examine too many theoretical possibilities, which “might well” distract

them “from the other vital issues in the case.” Id. at 168–69, 120 S.Ct. at 2121.

      The Florida Supreme Court rejected Bates’ Simmons claim based on its

interpretation of the 1994 amendment to Fla. Stat. § 775.082. The court held that

the amended statue, which eliminated the possibility of parole for capital

defendants sentenced to life in prison, “was not applicable to crimes committed

before its effective date” of May 25, 1994, because state laws are “presumed to

apply prospectively” in the absence of “clear legislative intent to the contrary,” and

there was “no unequivocal language that the Legislature intended this amendment

to apply retroactively.” Bates, 750 So. 2d at 10; see also State v. Smith, 547 So. 2d

613, 616 (Fla. 1989) (“[I]t is firmly established law that the statutes in effect at the

time of commission of a crime control as to the offenses for which the perpetrator

can be convicted, as well as the punishments which may be imposed.”). From that

threshold determination that “the 1994 amendment [could] have no effect on

[Bates’] sentencing,” the Florida Supreme Court concluded that there was simply



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no ex post facto claim for Bates to waive and that he was not entitled to have the

jury informed that he had agreed to waive parole eligibility because, “[a]t the time

[he] committed this murder, the Legislature had not established life without the

possibility of parole as punishment for this crime.” Bates, 750 So. 2d at 10–11.

       Turning to Bates’ request that the jury be informed of his other consecutive

sentences, the Florida Supreme Court explained that “[t]he introduction of this

evidence would open the door to conjecture and speculation as to how much time a

prisoner serves of a sentence and distract jurors from the relevant issue of what is

the appropriate sentence for the murder conviction.” Id. at 11. Because “[t]he

length of actual prison time is affected by many factors other than the length of the

sentence imposed by the sentencing court,” the Florida Supreme Court found that

evidence of Bates’ other sentences was not relevant to the issue of whether he

would “actually remain in prison for the length of those sentences.” Id.

       That decision was neither contrary to, nor an unreasonable application of,

Simmons and its progeny. Simmons requires that a sentencing jury be informed of

a defendant’s parole ineligibility only where the defendant is, as a matter of state

law, absolutely ineligible for parole and the State places his future dangerousness

at issue. 11 See 512 U.S. at 156, 178, 114 S.Ct. at 2190, 2201; Ramdass, 530 U.S.


       11
          In addressing a separate claim that the State had violated Hitchcock v. State, 673 So.
2d 859, 863 (Fla. 1996), by arguing to the jury that Bates would be eligible for parole on a life
sentence after serving 25 years, the Florida Supreme Court noted that the State had not


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at 166, 120 S.Ct. at 2120 (“[A] parole-ineligibility instruction is required only

when, assuming the jury fixes the sentence at life, the defendant is ineligible for

parole under state law.”). The Florida Supreme Court’s twin determinations —

that the 1994 amendment to § 775.082 does not apply retroactively to Bates’

criminal conduct and that he had no right under state law to waive his parole

eligibility — conclusively establish that Bates would be eligible for parole if the

jury sentenced him to life imprisonment. In light of the Florida Supreme Court’s

interpretation of state law, which is binding on federal courts, Bates was not

entitled under Simmons to inform the jury that it could impose a sentence of life

without the possibility of parole or that he had agreed to waive his parole

eligibility. See Ramdass, 530 U.S. at 167, 120 S.Ct. at 2120 (holding that a

Simmons instruction was not required in light of the Virginia Supreme Court’s

“authoritative determination” that the “petitioner was not ineligible for parole

when the jury considered his sentence”); see also Estelle v. McGuire, 502 U.S. 62,

67–68, 112 S.Ct. 475, 480 (1991) (“[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions.”); Mullaney


“inject[ed] [Bates’] future dangerousness into its evidence or argument.” Bates, 750 So. 2d at
11. Without explicitly acknowledging that finding, Bates asserts that the State’s cross-
examination of his character witnesses and its closing argument “implied that [he] would be a
danger in the future.” We need not decide whether the Florida Supreme Court’s contrary finding
forecloses federal habeas relief on Bates’ Simmons claim because the court did not specifically
rely on that finding when rejecting the claim before us, and Bates would still not be entitled to
relief under AEDPA even if we assume that the prosecution had put his future dangerousness at
issue.


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v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886 (1975) (“This Court . . .

repeatedly has held that state courts are the ultimate expositors of state law and that

we are bound by their constructions except in extreme circumstances.”) (citation

omitted); Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 903 (11th Cir. 2013)

(“The Florida Supreme Court’s interpretation of state law is binding on federal

courts.”).

      Bates insists that there was no ex post facto impediment to retroactively

applying the amended version of § 775.082 to his pre-amendment criminal conduct

because, under the circumstances of his case, it would not work to his disadvantage

and he otherwise agreed to waive his ex post facto rights. But that argument

misses the point. The Florida Supreme Court’s conclusion that the revised

sentencing statute does not apply retroactively to crimes committed before its

effective date was not based on the constitutional prohibition against ex post facto

legislation. Instead, it was a matter of statutory construction based on the time-

honored presumption against retroactive application of laws absent clear legislative

intent to the contrary. See Bates, 750 So. 2d at 10 (“Retroactive application of the

law is generally disfavored . . . and any basis for retroactive application must be

unequivocal and leave no doubt as to the legislative intent.”) (citations omitted);

see generally Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483,

1497 (1994) (“[T]he presumption against retroactive legislation is deeply rooted in



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our jurisprudence, and embodies a legal doctrine centuries older than our

Republic.”).

      Because the amended Florida statute, as authoritatively interpreted by

Florida’s highest court, does not operate retroactively, there is no ex post facto

problem for Bates to waive. Ex post facto problems can arise only if a law actually

does apply retroactively to criminal conduct or other events that occurred before its

enactment. See Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896 (1997)

(“To fall within the ex post facto prohibition, a law must be retrospective — that is,

it must apply to events occurring before its enactment — and it must disadvantage

the offender . . . by altering the definition of criminal conduct or increasing the

punishment for the crime.”) (quotation marks and citations omitted). Bates’

problem was not one that he can waive his way around because his problem is that

the state law he sought to have applied to him did not apply to him.

      As for Bates’ contention that the state courts violated his clearly established

due process rights by failing to instruct the jury about his other consecutive

sentences, we rejected a virtually identical argument in Booker v. Secretary,

Florida Department of Corrections, 684 F.3d 1121 (11th Cir. 2012). There, the

petitioner argued that the state trial court had violated his due process rights when

it refused to instruct his capital sentencing jury that he “was serving a consecutive

term of imprisonment of one-hundred years” for his other crimes, which



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“functionally barred him from ever being paroled” if he were sentenced to life with

the possibility of parole after 25 years on his murder conviction. Id. at 1123–24.

The Florida Supreme Court, quoting the earlier decision that it had issued in this

case, rejected the petitioner’s claim on the ground that “[t]he introduction of this

evidence would open the door to conjecture and speculation as to how much time a

prisoner serves of a sentence and distract jurors from the relevant issue of what is

the appropriate sentence for the murder conviction.” Booker v. State, 773 So. 2d

1079, 1088 (Fla. 2000) (quoting Bates, 750 So. 2d at 11).

      Applying AEDPA standards, we held that the Florida Supreme Court’s

decision in Booker was not contrary to or “an unreasonable application of clearly

established federal law, which thus far has only addressed jury instructions in the

circumstance of statutory parole ineligibility.” Id. at 1126. We explained that

“Simmons does not control where the defendant is statutorily eligible for release

on parole,” and that “Ramdass rejected the functional approach to parole eligibility

that [the petitioner] urges us to adopt here.” Id. Even if the state court’s decision

“violate[d] the spirit of Simmons,” we concluded in Booker that it did not violate

any clearly established Supreme Court precedent about “the necessity of an

instruction to inform the jury of the length of a defendant’s likely term of




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imprisonment.” Id. at 1126–27 (quotation marks and ellipsis omitted). Our

Booker decision forecloses Bates’ claim. 12

       The need for AEDPA deference here is no different than it was in Booker.13

Indeed, there appears to be even more reason to defer to the Florida Supreme

Court’s decision in this case because Bates, unlike the petitioner in Booker, cannot

colorably claim that his other consecutives sentences “functionally barred him

from ever being paroled.”14 Id. at 1124. At the time Bates was sentenced for his

non-homicide offenses, Florida law provided that he would be eligible for parole

       12
           Judge Wilson’s concurring opinion insists that our decision in Booker does not
foreclose Bates’ claim that he is entitled to federal habeas relief based on a violation of his due
process rights under Simmons. But it does. The petitioner in Booker, like the petitioner here,
asserted that “the state court violated his due process rights when it refused to instruct the jury
regarding his other consecutive sentences.” Booker, 684 F.3d at 1124. And we held that the
petitioner was not entitled to federal habeas relief because the Florida Supreme Court’s rejection
of that claim was neither contrary to, nor an unreasonable application of, “Simmons or its
progeny” or any other “clearly established federal law, which thus far has only addressed jury
instructions in the circumstances of statutory parole ineligibility.” Id. at 1126. Because there
were no changes in clearly established federal law between the time the Florida Supreme Court
decided Booker’s appeal and the time it decided Bates’ appeal, Bates’ near-identical claim for
federal habeas relief must also fail under AEDPA standards.
       13
           Bates attempts to distinguish Booker and Ramdass on the ground that neither case
involved a defendant who agreed to waive his right to parole eligibility. [Bl.Br. at 60] But that
is a distinction without a difference because the Florida Supreme Court has conclusively
determined, as matter of state law, that Bates had no right to waive his parole eligibility and
effectively opt for a sentence that was not authorized by the law in effect at the time he
committed first-degree murder. Bates has not cited any Supreme Court precedent holding that
states must permit a defendant to waive a state law applicable to his sentencing simply because it
would be advantageous for him to do so.
       14
           Unlike Bates’ consecutive sentences, all of which carried the possibility of parole,
there is no indication from the face of our opinion in Booker that the petitioner in that case was
eligible for parole on his consecutive term of 100 years imprisonment. Indeed, in Booker we
assumed that the petitioner would have to satisfy “his multiple terms of incarceration” before
becoming eligible for parole on a possible life sentence for his murder conviction. 684 F.3d at
1122 & n.1.


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on his two life sentences “within 5 years after the initial date of confinement in

execution of the judgment,” and would be eligible for parole on his remaining

fifteen-year sentence “within 24 months” of that same date. See Fla. Stat.

§ 947.16(1)(c)-(d) (1983). Had the resentencing jury fixed Bates’ sentence for

first-degree murder at life, it appears that he would have been eligible for parole on

all of his convictions within 37 years of his initial 1983 confinement or 25 years

after his 1995 resentencing proceeding. See id. § 947.16(2)(g) (“For purposes of

determining eligibility for parole interview and release, . . . [e]ach mandatory

minimum portion of consecutive sentences shall be served consecutively.”).

      Because parole was still a legal possibility, however remote and however far

removed, at the time of Bates’ resentencing proceeding, his circumstances fell

outside the narrow confines of Simmons’ constitutional rule, which applies only

when lifetime parole ineligibility is a certainty under state law. See Simmons, 512

U.S. at 171, 114 S.Ct. at 2198 (plurality opinion) (“The State may not create a false

dilemma by advancing generalized arguments regarding the defendant’s future

dangerousness while, at the same time, preventing the jury from learning that the

defendant never will be released on parole.”) (emphasis added); Ramdass, 530 U.S.

at 181, 120 S.Ct. at 2127–28 (O’Connor, J., concurring) (“Simmons does not

require courts to estimate the likelihood of future contingencies concerning the

defendant’s parole ineligibility. Rather, Simmons entitles the defendant to inform



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the capital sentencing jury that he is parole ineligible where the only alternative

sentence to death is life without the possibility of parole.”) (emphasis added). The

Florida courts had leeway in deciding whether the jury should be informed of

Bates’ other consecutive sentences, none of which guaranteed that he would never

be released from prison if he were given a life sentence for first-degree murder.

See Simmons, 512 U.S. at 168, 114 S.Ct. at 2196 (plurality opinion) (“[W]e

generally will defer to a State’s determination as to what a jury should and should

not be told about sentencing. In a State in which parole is available, how the jury’s

knowledge of parole availability will affect the decision whether or not to impose

the death penalty is speculative, and we shall not lightly second-guess a decision

whether or not to inform a jury of information regarding parole.”); id. at 176, 114

S.Ct. at 2200 (O’Connor, J., concurring) (“In a State in which parole is available,

the Constitution does not require (or preclude) jury consideration of that fact.”).

      As the Supreme Court explained in Ramdass, a “functional approach” to

parole ineligibility is neither “necessary [n]or workable” because “[t]he

possibilities [of when a defendant might be released from prison] are many, the

certainties few,” and states “might well conclude that the jury would be distracted

from the other vital issues in the case.” 530 U.S. at 169, 120 S.Ct. at 2121

(plurality opinion). Although it acknowledged that the “latitude” given to states in

this area is subject to “federal requirements . . . related to the admission of



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mitigating evidence,” the Ramdass Court underscored that states could, for a

variety of reasons, reasonably conclude that information concerning potential

parole ineligibility might not be material:

       Parole eligibility may be unrelated to the circumstances of the crime
       the jury is considering or the character of the defendant, except in an
       indirect way. Evidence of potential parole ineligibility is of uncertain
       materiality, as it can be overcome if a jury concludes that even if the
       defendant might not be paroled, he may escape to murder again; he
       may be pardoned; he may benefit from a change in parole laws; some
       other change in the law might operate to invalidate a conviction once
       thought beyond review; or he may be no less a risk to society in
       prison. The Virginia Supreme Court had good reason not to extend
       Simmons beyond the circumstances of that case, which included
       conclusive proof of parole ineligibility under state law at the time of
       sentencing.

Id. at 169–70, 120 S.Ct. at 2121–22 (citations omitted).15

       The Florida Supreme Court expressed similar concerns when it concluded

that Bates’ non-homicide sentences were “not relevant mitigation on the issue of

whether [he] will actually remain in prison for the length of those sentences” and

“would open the door to conjecture and speculation” because the “length of actual

prison time is affected by many factors other than the length of the sentence

imposed by the sentencing court.” Bates, 750 So. 2d at 11. That court, too, “had

       15
           In his concurring opinion, Judge Wilson expresses his belief that the Supreme Court
would, if given the chance, likely “conclude that due process requires [the admission of other
consecutive sentences as] relevant mitigation evidence in a capital sentencing.” That belief flies
in the face of the fact that the Court has already rejected a “functional approach” to parole
ineligibility and given several reasons why “[e]vidence of potential parole ineligibility is of
uncertain materiality.” See Ramdass, 530 U.S. at 169–70, 120 S.Ct. at 2121–22. We have no
reason to believe that the Supreme Court will rule to the contrary in the future. And, as Judge
Wilson acknowledges, under AEDPA only past holdings count; future ones are irrelevant.


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good reason not to extend Simmons beyond the circumstances of that case, which

included conclusive proof of parole ineligibility under state law at the time of

sentencing.” See Ramdass, 530 U.S. at 170, 120 S.Ct. at 2121 (plurality opinion).

We cannot say that the state courts’ refusal to allow Bates to inform the jury of his

other consecutive sentences, all of which carried the possibility of parole at some

point, was contrary to or an unreasonable application of clearly established

Supreme Court precedent. At the very least, some fairminded jurists could

conclude that the Florida Supreme Court’s decision was not “so lacking in

justification that there was an error well understood and comprehended in existing

law,” which forecloses Bates’ entitlement to federal habeas relief under AEDPA’s

highly deferential standards. See Harrington, 131 S.Ct. at 786–87.

                                         V.

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

petition for a writ of habeas corpus.

      AFFIRMED.




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WILSON, Circuit Judge, concurring:

         Although I ultimately agree that Bates is not entitled to habeas relief on his

claims, I write separately to emphasize my disagreement with much of the

Majority’s analysis. First, with respect to Bates’s ineffective assistance of counsel

claim, although I believe that trial counsel was ineffective, given the dearth of

clearly established law on this point, I agree that the state court’s adjudication was

not an unreasonable application of clearly established federal law. Similarly, with

respect to Bates’s claim involving the resentencing jury’s lack of awareness about

his consecutive life sentences, I disagree with the Majority’s conclusion that

existing Supreme Court precedent forecloses his claim. Nevertheless, because I

agree that the Florida Supreme Court’s adjudication was not contrary to clearly

established law of the Supreme Court, I ultimately concur in the outcome of that

claim.

                                             A.

         Bates’s murder trial began with a prayer in the presence of the jury, and the

victim’s husband subsequently gave testimony informing the jury that the prayer

was delivered by none other than the victim’s own minister. This testimony had no

probative value, but it had great potential to prejudice the jury against Bates. The

prayer inserted God into Bates’s trial, and the husband’s testimony made clear

whose side God was on.



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       Bates argues that his trial counsel, Bowers, rendered ineffective assistance

by failing to object to this highly prejudicial sequence of events, either when the

trial judge asked the victim’s minister to pray or when the victim’s husband’s

testimony linked the victim to the minister’s church. Specifically, Bates insists

that in the racially charged context of this case, where a black defendant stood

before an all-white jury, beginning the trial with a prayer by the victim’s minister

was not generic and benign as the district court and the Majority concludes,

particularly after the jury became aware of who delivered the prayer. Moreover,

Bates insists that the Florida Supreme Court did not conduct the proper cumulative

Strickland prejudice analysis because it failed to consider the totality of the

circumstances within the context of Bates’s trial. 1

       The Florida Supreme Court concluded that this Strickland claim failed on

the merits. See Bates v. Dugger, 604 So. 2d 457, 459 n.4 (Fla. 1992). Although

1
  Part of Bates’s theory may be, as the Majority says, “that an all-white jury cannot give a black
defendant charged with the murder of a white woman a fair trial.” Maj. Op. at 14. Had Bowers
secured a mistrial by requesting one after the prayer or at least after the husband’s testimony,
Bates believes he may have benefitted from a racially diverse jury. That, however, is not Bates’s
only argument, or his best one. To be perfectly clear, I am focusing here on Bates’s claim that in
the context of a racially charged environment, which included an all-white jury, a white Christian
victim whose religion was made evident by her minister’s prayer, and a black defendant, his
counsel’s failure to object to the minister’s prayer after the husband’s testimony was objectively
unreasonable. The prejudice Bates suffered as a result of this unobjected-to sequence of events
was not facing an all-white jury, which perhaps may have been able to give Bates a fair trial
before they listened to the minister’s opening prayer. Rather, Bates claims, and I agree, that the
jury was far less likely to be able to give Bates a fair trial after the prayer and the husband’s
testimony, and that any competent counsel would have objected. This testimony linked the
minister’s plea for God’s guidance to the victim herself, turning a potentially innocuous prayer
into a not so subtle reminder that Bates stood accused of murdering a Christian woman and that
her minister was interested in the trial.


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Bates insists that the Florida Supreme Court’s determination is not entitled to

AEDPA deference because it was insufficient and relied upon inaccurate facts, the

Supreme Court has clarified that “[w]here a state court’s decision is

unaccompanied by an explanation, the habeas petitioner’s burden still must be met

by showing there was no reasonable basis for the state court to deny relief.”

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784 (2011); see Jones v. GDCP

Warden, __F.3d __, 2014 WL 1088312, *10 (11th Cir. March 20, 2014) (“AEDPA

mandates deferential review of any claim that a state court ‘adjudicated on the

merits,’ 28 U.S.C. § 2254(d), and does not impose any specific requirements on

how a state court should announce its decision.”). Therefore, we owe the Florida

Supreme Court’s rejection of Bates’s ineffective assistance of counsel claim

AEDPA deference, and given that conclusion, I agree with the Majority that Bates

is not entitled to habeas relief. I am not aware of any clearly established federal

law, nor has Bates cited any, which indicates that the Florida Supreme Court’s

determination is an unreasonable determination under Strickland.

      This is not to say that I agree with the Florida Supreme Court’s decision. I

do not. I concur and do not dissent only because that court’s decision is not

necessarily an unreasonable one. Unlike the Majority and that court, however, I

believe that Bates has presented a persuasive Strickland claim. One would expect

reasonably competent counsel, following a prayer by a murder victim’s minister



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and subsequent testimony linking the victim to the minister’s church, to request

permission to approach the bench, to object, and to ask for a mistrial. This is

especially true given the context of Bates’s original trial: it was a high profile,

racially charged murder case in a small community. 2

       I agree with the Majority that interrupting either the prayer or the husband’s

testimony with an immediate objection would have been imprudent. I also agree

that if Bowers had waited too long to object, his objection would have been barred

by the contemporaneous-objection rule. See, e.g., United States v. Turner, 474

F.3d 1265, 1267 (11th Cir. 2007) (refusing to consider an objection to testimony

where the “objection was made by defense counsel only the next day” (emphasis

added)). I disagree, however, that competent counsel would not find an

opportunity to object in the rather large window of time between the moment the

husband gave the objectionable testimony (when an objection would have been

imprudent) and “the next day” (when an objection would have been untimely).

Had Bowers asked to approach the bench immediately after the husband’s

testimony concluded but before the next witness was called, the objection would

2
  During the postconviction evidentiary hearing, Bowers testified that the jurors could have
drawn a prejudicial conclusion from the prayer and subsequent testimony given the racial tension
in the case. In his brief, Bates explains that “[n]o black defendant in a death penalty case in
Panama City had ever been acquitted where the victim was white. Of the five death sentences
rendered in Bay County, all five were black defendants with white victims. Three of the
sentences were handed down to Mr. Bates since 1983. The other two death sentences were
imposed on Carl Jackson and Eric Turner, whose cases were overturned and reduced to life
sentences by the Florida Supreme Court. See Jackson v. State, 359 So. 2d 1190 (Fla. 1978);
Turner v. State, 645 So. 2d 444 (1994).”


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have been timely. The contemporaneous-objection rule does not foreclose

objections raised after a witness’s testimony, particularly if counsel explains the

reason for any delay.

       I also fail to see why Bowers would have been conflicted about approaching

the bench to request a mistrial. The upside, securing a mistrial, could not have

been more beneficial to Bates given the jury’s mounting prejudice against him. In

this context, the prospects for securing a mistrial need not be very great to make it

incompetent not to even ask for one.3 The Majority suggests that there is a

significant downside to asking for a mistrial in the manner just described, but I do

not see it. The Majority explains that approaching the bench would have invited

the jury to speculate and that if the objection had been overruled, the jury would

have been left bewildered. Even if this is true, is it really better to leave the jury

prejudiced, instead? I cannot take seriously the notion that prosecutors would

voice no objection to beginning a murder trial with a prayer by the defendant’s

minister, even though all the reasons The Majority discusses for not objecting

would be equally applicable in that context. When God is inserted into a trial on

the opponent’s side, whatever slight reservations competent attorneys have about

raising objections (not wanting to be quarrelsome, not wanting to exhaust the

3
  There is no certainty that Bowers’s objection, had it been raised, would have been sustained,
but by remaining silent, there was a certainty that a mistrial would not be granted. Depriving a
client of a significant, even if not certain, opportunity for a mistrial under these circumstances is
incompetent.


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court’s patience, and not wanting to “bewilder” the jury) pale in comparison to

such obvious and significant prejudice.

       The Majority opinion further supposes that Bowers may have refrained from

objecting because he feared having his objection overruled, but that can hardly

justify an attorney’s decision not to raise an objection in the first place. If that

were an adequate justification, a lawyer could never be faulted for failing to raise

an objection because it is always true that an objection might be overruled. This

logic depends on the fallacy that having an objection overruled is highly

counterproductive, such that a lawyer who hears prejudicial testimony is placed in

a lose-lose situation: objecting is bad because the objection might be overruled, but

remaining silent is also bad because the prosecution may inject even more

prejudice into the trial. But here, at worst, Bowers faced a win-no lose situation.

Had he raised the objection, he might have secured a mistrial and spared his client

from prejudice, but at worst, his objection would have been overruled out of the

jury’s hearing, leading to a momentary break in the proceedings at an already

natural breaking point (between the testimony of two witnesses). In short, Bowers

passed up an opportunity for a significant upside in order to avoid a virtually non-

existent downside. 4


4
 The Majority opinion insists that we cannot expect competent attorneys to raise objections that
are meritless. On that point, I agree. But a potentially losing claim is different than a meritless
one. We might expect competent counsel to object to highly prejudicial evidence even if there is


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       Further, the fact that Bowers thought “nothing of the prayer” and that he

never even considered moving for a mistrial is all the more reason to believe that

his failure to object was incompetent and was not the product thoughtful

consideration. He did not balance the pros of objecting to this highly prejudicial

evidence against the cons of potentially drawing attention to the prejudice, as the

Majority would have it. Instead, Bowers incompetently failed to see the prejudice

at all and sat idly by as the court and the prosecution stacked the deck against his


only a 49% chance that the objection will be sustained, but of course if the odds of success are
only 1%, competent counsel’s calculus may change. This consideration assumes that the
objectionable evidence is prejudicial, however, and as the Majority recognizes, in addition to
considering the odds of having an objection sustained, competent counsel must also assess
whether the evidence is bad for the client. All else being equal, as evidence becomes more
prejudicial, competent attorneys will be more willing to raise objections that may not be
sustained. And at the other extreme, when an event transpires that does nothing to harm a
client’s interests, even if it is 100% certain that an objection to the event will be sustained,
competent attorneys will not necessarily object because there is nothing to gain by doing so.
Relying on this imminently logical proposition, the Majority suggests that if Bates could not
ultimately show prejudice for purposes of Strickland, then we cannot conclude that his attorney
was incompetent for failing to object. To be clear, I believe that Bates can show prejudice for
Strickland purposes. But even if he could not, I disagree with the Majority opinion’s conclusion.
The fact that an appellate court may ultimately conclude, looking back, that an error was not
prejudicial for Strickland purposes does not mean that the potential error was not sufficiently
prejudicial to mandate action by a competent attorney on the spot. We assess prejudice for
Strickland purposes under the totality of the circumstances, with the benefit of all the evidence
and with knowledge of all subsequent events. Prejudicial evidence to which an attorney might
have objected is often outweighed by subsequent, overwhelming proof of guilt, and we often find
that a Strickland claim fails on the second prong of the analysis for this reason.
But it would be patently incompetent for an attorney listening to prejudicial evidence during a
trial to analyze the effect on his client in the same way. For one thing, he obviously does not
know what the totality of the circumstances will be because he cannot predict the future.
Further, the fact that subsequent evidence might render earlier prejudice harmless does not mean
that a lawyer should simply throw up his hands and allow the prosecution to pile prejudice on top
of prejudice. Indeed, if that were the case, a lawyer representing a man confronted with
overwhelming evidence of his guilt could never be incompetent under the first prong of
Strickland. Surely that cannot be. Competent lawyers object to prejudicial testimony even if—
perhaps particularly if—the cases against their clients are overwhelming.


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client. 5 As I have already said, however, while I believe Bates established a

Strickland claim, we cannot grant habeas on this basis because the Florida

Supreme Court’s contrary conclusion was not unreasonable.6

       It is bad enough that, in the course of denying habeas relief on Bates’s

Strickland claim, the Majority countenances a defense attorney’s failure to object

to highly prejudicial proceedings that have no probative value in a trial. However,

I believe that the manner in which the Majority relies upon Establishment Clause

cases to conclude that Bates’s Strickland claim fails is even more problematic and

5
  The Majority correctly notes that competent attorneys do not make all objections that could be
made, even if there is nothing to lose by objecting. To be clear, I do not find Bates’s Strickland
claim persuasive because there would have been no downside to raising an objection. Instead, I
find Bates’s Strickland claim persuasive because, in addition to having almost nothing to lose by
objecting, Bowers had a lot to gain. His client was prejudiced by proceedings at trial, and at that
point, Bowers had two options: allow the trial to proceed, despite the obvious downside that the
trial was infected with prejudice against his client, or object and request a mistrial, which has no
perceptible downside and which would have given Bates at least a shot at a new trial uninfected
by prejudice. Faced with these options, competent attorneys do not opt for silence.
6
  The Majority explains that Bowers admitted only that the jury could have drawn a prejudicial
inference against Bates based on the prayer and subsequent testimony. From this, the Majority
concludes that we would merely be speculating about whether or not prejudice occurred, which
is not enough to establish a Strickland claim. This argument misses the point. Bates’s entire
argument is that his counsel’s barometer for measuring prejudice was not functioning properly,
so it does not do much good for us to rely heavily on that barometer now. While Bowers
perceived no prejudice at the time and merely speculated after the fact that there might have been
prejudice to Bates, Bates claims there was prejudice at trial but only realized later that the
potential was there. More to the point, we are not here to evaluate what Bowers believed;
instead, we are here to evaluate what objectively competent counsel would have believed and
done. I think competent counsel would have assessed, on the spot, that the prejudice was real,
not speculative, and I think competent counsel would have done something about it.
        That the record does not reveal much about how prejudicial the testimony in question
truly was does not, as the Majority suggests, support the government’s position. Instead, the
silence in the record is a consequence of Bowers’s failure to perceive the prejudice; it is not a
sign that there was no prejudice. We know that testimony linked the minister, and thus the trial’s
opening prayer, to the victim, and we know that Bowers did nothing about it, leaving the record
on this point underdeveloped. All this tells us is that Bowers failed to react, not that he had no
reason to react.


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unnecessary. Because the Florida Supreme Court addressed Bates’s Strickland

claim on the merits, the first question we must address is whether that court

unreasonably applied Strickland in holding that Bowers’s failure to object to a

prayer and subsequent testimony was not ineffective. I agree that it did not, and

we could leave it at that.

      To be fair, I discussed how I would have addressed the Strickland issue were

we to analyze the issue de novo, so I cannot quarrel with the Majority’s decision to

do the same. I must, however, raise a few issues with the Majority’s analysis,

which is in deep tension with Strickland itself. To begin with, I would frame the

question differently than has the Majority. The Majority asks only whether

Bowers was incompetent for failing to object to the prayer itself. Had Bowers

objected only to the prayer, I agree that his objection might have been best framed

as an Establishment Clause challenge. That is not precisely what Bates claims

Bowers should have objected to, however. Instead, Bates also insists that Bowers

was incompetent for failing to object to the prayer after the husband’s testimony

linked the prayer and the minister to the victim. In other words, we need not

address whether the Establishment Clause prevented the trial court from inviting

God into the courtroom; rather, we must address whether competent attorneys

would object to testimony placing God on the victim’s side. That changes the

objection from an Establishment Clause challenge to a run-of-the-mill objection to



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highly prejudicial testimony that has no probative value. The Establishment

Clause cases cited by the Majority are irrelevant to this inquiry.

       Even assuming that we must address whether Bowers was incompetent for

failing to raise an initial objection to the prayer itself on Establishment Clause

grounds, we have no reason to address the Establishment Clause cases. As the

Majority makes clear, it believes the prayer itself was entirely innocuous,

unobjectionable, and did not prejudice the jury against Bates in any way. The

Strickland analysis should thus be quite simple: competent attorneys in Bowers’s

position would not have objected because nothing about the prayer harmed Bates.

The Majority’s Strickland analysis should stop there. After all, regardless of the

odds of success, why object or ask for a mistrial if there is no reason to think that

the next jury will be any more sympathetic (or less prejudiced) than the current

one?

       To justify discussing the Establishment Clause, the Majority explains that it

is only analyzing what a competent attorney in Bowers’s position would have

done. In order to do this, the Majority claims we need to know whether Bowers’s

objection to the prayer itself would have been sustained under the Establishment

Clause because that, in turn, informs our analysis of whether a competent attorney

in Bowers’s position would have objected. I disagree with both propositions.




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      In analyzing Bates’s Strickland claim, our goal is to recreate the situation

confronting Bowers when he failed to object. The Majority states that it is

reasonable to conclude that counsel’s failure to object was not deficient because

the “United States Supreme Court has never held that it is a violation of either the

Due Process Clause or the Establishment Clause to begin a criminal trial with a

prayer, let alone a violation of the Establishment Clause that would require

reversal, a mistrial, or any other form of relief.” Maj. Op. at 19. The Majority also

asserts that “we are deciding . . . that given the state of the law at the time of trial

(and now), it was (and still is) not clearly established that the opening prayer

violated the Establishment Clause. . . . As a result, a reasonably competent

attorney could conclude that objecting . . . would not benefit his client.” Maj. Op.

at 21, n.9 (emphasis added).

      In essence, the Majority is asserting that counsel cannot be found

incompetent for failing to raise an objection under Strickland unless the Supreme

Court has clearly established that the unraised objection would have been

sustained. That simply cannot be the case, as competent trial counsel’s goal is not

to have 100% of his objections sustained; it is instead to secure the most favorable

circumstances for his client. When assessing a trial court’s actions, the competent

attorney’s first question is not, “What have federal courts clearly said on this

subject, and if I object, how likely am I to be sustained?” Instead, the competent



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attorney’s first question is, “Do these actions harm my client’s interests, and if so,

what are the best arguments I can make to remedy the prejudice that has just

occurred?” If the best argument is one that has neither been explicitly accepted or

rejected by federal courts, and counsel decides not to make the argument for that

reason, I think that decision would very likely be incompetent.

      Indeed, the question of how clearly established the grounds for an objection

are in federal law is often largely irrelevant to a trial attorney in state court. For

example, assuming that the Supreme Court had clearly established that Bates

would have been entitled to a mistrial had Bowers objected to the prayer,

competent counsel still may not have objected for reasons wholly unrelated to the

clarity of federal law. If, as the Majority claims, the jury was not prejudiced

against Bates either before or after the prayer, then even if Bowers could have

secured a mistrial, why would he want to? Competent lawyers do not halt

proceedings only to start them over again—even if the Supreme Court has clearly

established that they can—when there is no reason to believe that starting over will

be any better for their clients.

      On the other hand, if Supreme Court precedent was not clearly established

one way or the other, and a defendant’s trial began with a prayer asking the jury to

bring the defendant to justice or to bring closure to the victim’s family, the

prejudice would be extreme. In that case, it would likely be incompetent for



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counsel to do nothing regardless of whether the Supreme Court had clearly

established that beginning a trial with a biased prayer is grounds for a mistrial,

unless he had legitimate strategic reasons for doing nothing. That case law is not

definitive on the issue is no excuse for the attorney to sit in silence and to do

absolutely nothing to suggest that gaps in case law be filled in in his client’s favor. 7

       In order to justify its discussion of the Establishment Clause in a case about

a Strickland claim, the Majority explains that counsel cannot be deemed ineffective

for failing “to raise meritless arguments.” Diaz v. Sec’y, Dept. of Corr., 402 F.3d

1136, 1142 (11th Cir. 2005) (emphasis added). As the Majority explains, however,

the most that can be said of case law regarding any objection Bowers might have

raised under the Establishment Clause is that federal law does not clearly establish

that such an objection would prevail. I have no problem concluding that attorneys

cannot be found incompetent for failing to raise meritless claims, but I think it is

entirely different—and highly inappropriate—to suggest that attorneys could never

be found incompetent for failing to raise a claim simply because it is not clearly

established. But this is the interpretation of Strickland the Majority advances.

Worse still, in a case where our only task is to assess the reasonableness of the


7
  Further, from the standpoint of a criminal defense attorney operating in state court, that the
Supreme Court has no clearly established precedent does not necessarily suggest that there is a
gap in case law at all. If the Florida Supreme Court had clearly established precedent
interpreting the Establishment Clause to forbid prayers at the beginning of a criminal trial and
explaining that a mistrial is the only adequate remedy, then the absence of clearly established
federal law would be entirely irrelevant to our Strickland analysis.


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Florida Supreme Court’s resolution of a Strickland claim, the Majority attempts to

convert a potential Establishment Clause claim from “not clearly established” to

“meritless.” This obvious overreach makes a mess of Strickland and potentially

forecloses a claim that we have absolutely no reason to address.

      At least by explaining that “we are not deciding whether the opening prayer

violated the Establishment Clause,” Maj. Op. at 21, n.9, the Majority recognizes

that whether trials can begin with prayers is still an open question. It is important

to point out that this remains true despite the Majority’s claim that “federal courts

of appeal have rejected such Establishment Clause challenges where the content of

the prayer did not prejudice the defendant or substantially impair his right to a fair

trial.” Maj. Op. at 19 (emphasis added). In support of this proposition, the

Majority cites Isaacs v. Head and Marsh v. Chambers, neither of which support the

Majority’s conclusion. See Isaacs, 300 F.3d 1232, 1252–53 (11th Cir. 2002)

(rejecting a habeas claim that the state court had unreasonably applied the Supreme

Court’s Establishment Clause precedent by not reversing a conviction where there

had been a prayer to open a trial, reasoning that there was a lack of Supreme Court

precedent supporting a reversal); Marsh, 463 U.S. 783, 103 S. Ct. 3330 (1983)

(holding that a prayer at the commencement of a legislative session did violate the

Establishment clause). These cases tell us only that it is not clearly established that

Bowers’s objection to the prayer would have been sustained. They do not tell us



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that it should have (or would have) been overruled had it been made, or that the

objection would have been meritless such that Bowers cannot be faulted for having

failed to raise it. The same can be said of the Supreme Court’s recent decision in

Town of Greece, NY v. Galloway. 134 S. Ct. 1811 (2014) (rejecting an

Establishment Clause challenge to opening town board meetings with a sectarian

Christian prayer). 8

       Ironically, the Majority emphasizes that Bates cannot disguise an

Establishment Clause claim as a Strickland claim because he was only granted a

Certificate of Appealability (COA) on the Strickland issue. See Maj. Op. at 14,

n.1. Given that Bates is precluded from making an Establishment Clause claim, it

is inappropriate—particularly in an AEDPA case concerning a Strickland claim—

for the Majority to imply that Establishment Clause cases foreclose objections to

prayers at the beginning of a trial. Ultimately, however, because of the deference

afforded state courts under AEDPA and the absence of clearly established federal

8
  The Majority also cites United States v. Walker, 696 F.2d 277, 282 (4th Cir. 1982). To be sure,
that case advances the argument the Majority unnecessarily makes here that Bowers’s objection,
had he raised it, might not have been sustained. But the fact that the Majority has to resort to out
of Circuit precedent to support its point shows that the question of what might have happened
had Bowers objected is an open one in this Circuit. It also underscores how implausible it is to
suggest that Bowers was competent based on the assumption that he did not raise an objection
because he believed the state trial court would extend the law of our sister Circuit to overrule his
objection. It would have been the government’s job to argue why the state court should adopt
that precedent, and it is competent defense counsel’s job, if the objection would benefit his
client, to explain why the Fourth Circuit’s non-binding case was wrongly decided or is
distinguishable. Under the Majority’s view, the government’s job would become very easy,
because as soon as an adverse ruling comes out in any federal court against a defendant’s
position, apparently competent defense counsel are no longer expected to raise the objection in
any other jurisdiction.


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law of the Supreme Court, I concur in concluding that the Florida Supreme Court’s

adjudication of the Strickland claim was not unreasonable. See 28 U.S.C. §

2254(d)(1).

                                                   B.

       Bates makes three related claims with respect to revised Florida Statute §

775.082(1), which provides for a possible sentence of life without parole. First,

Bates argues that the resentencing judge erred by failing to allow Bates to waive

his right against ex post facto application of laws in order to apply the newer

version of § 775.082(1) to him, which provides a possible sentence of life without

parole.9 Second, Bates maintains that the judge erred by failing to enter Bates’s

soliloquy seeking retroactive application of the sentencing statute into evidence so

that the jury would know that Bates was willing to forego any potential opportunity

for parole. Third, Bates argues that the resentencing judge erred by failing to

instruct the resentencing jury that Bates had been sentenced to two life terms and

one 15-year term for the other crimes which would run consecutively, facts which

he believes would have made the jury less likely to recommend death because they



9
  Alternatively, Bates maintains that the application of the statute as revised by the Florida
Legislature in 1994 would not violate the prohibition against ex post facto application of laws.
See Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981) (providing a two prong test
to determine if a statute violates the ex post facto prohibition, asking (1) is the law retrospective,
and if so, (2) if it is disadvantageous to the offender). Here, Bates argues that the amended §
775.082(1), if applied, would be advantageous, not disadvantageous, under the circumstances of
his resentencing.


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would have known that he would be imprisoned for a long time. 10 Bates asserts

that these failures denied him due process and a fundamentally fair capital

sentencing under the Eighth and Fourteenth Amendments. See Stringer v. Black,

503 U.S. 222, 232, 112 S. Ct. 1130, 1137 (1992) (“[W]hen the sentencing body is

told to weigh an invalid factor in its decision, a reviewing court may not assume it

would have made no difference if the thumb had been removed from death’s side

of the scale.”).

       In its adjudication on the merits, the Florida Supreme Court held:

       In Florida, without clear legislative intent to the contrary, a law is
       presumed to apply prospectively. . . . We find no unequivocal
       language that the Legislature intended this [1994] amendment to
       apply retroactively. We have previously held that this statute was not
       applicable to crimes committed before its effective date . . . .

       Our analysis of this issue causes us to reject appellant’s waiver
       arguments. Because the 1994 amendment can have no effect on
       appellant’s sentencing, we conclude that the waiver of an ex post facto
       claim in respect to the 1994 amendment to section 775.082 is of no
       consequence. The waiver of ex post facto rights would only be an
       issue if the statute could have an effect on appellant’s sentence which,
       as we have stated, it cannot.
10
   Bates’s claim regarding the relevance of his additional life sentences to the resentencing jury is
within the broad scope of our COA, which authorized Bates to address “[w]hether the Florida
Supreme Court’s rejection of Appellant’s claim that the trial court’s refusal to instruct the jury
about Appellant’s parole eligibility, including the effect of consecutive sentences he had left to
serve, was contrary to law established by the United States Supreme Court or objectively
unreasonable in light of such precedent.” I disagree with the Majority’s argument that even if
Bates’s claim is included in our COA, he has abandoned this claim by failing to “plainly and
prominently” argue it on appeal. Maj. Op. at 27, n.13 (citing Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681 (11th Cir. 2014)). Bates has cited the relevant Supreme Court precedents
in his appellate brief and specifically argued that the resentencing jury’s lack of information
about his additional consecutive sentences was unconstitutional. That is enough to place the
issue before us.


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Appellant’s alternate contention, that the jury should have been
advised that appellant would agree to waive the possibility of parole,
is also unavailing under Florida’s capital sentencing scheme because,
as the trial court ruled, “[a] defendant cannot by agreement confer on
the court the authority to impose an illegal sentence.” Williams v.
State, 500 So. 2d 501, 503 (Fla. 1986). At the time appellant
committed this murder, the Legislature had not established life
without the possibility of parole as punishment for this crime.

In his second issue, appellant argues that the State took advantage of
the trial court’s failure to instruct the jury on a sentence of life without
the possibility of parole during cross-examination of appellant’s
witnesses and closing argument by making future dangerousness an
issue for the jury. Appellant did not object to either the State’s cross-
examination or closing argument on this ground, and the issue is
therefore procedurally barred. Steinhorst v. State, 412 So. 2d 332, 338
(Fla. 1982). Moreover, after reviewing the record, we do not agree
that the State’s cross-examination or argument raised the specter of
appellant’s future dangerousness. . . .

As part of his third issue, appellant contends that the fact that he was
already sentenced to two life terms plus fifteen years and that those
sentences were to run consecutively to the sentence for the murder
was relevant mitigation “in the sense that [it] might serve as a basis
for a sentence less than death.” We have rejected similar arguments
in Franqui v. State, 699 So. 2d 1312, 1326 (Fla. 1997); Marquard v.
State, 641 So. 2d 54 (Fla. 1994); and Nixon v. State, 572 So. 2d 1336
(Fla. 1990).

These other sentences are not relevant mitigation on the issue of
whether appellant will actually remain in prison for the length of those
sentences. The length of actual prison time is affected by many factors
other than the length of the sentence imposed by the sentencing court.
The introduction of this evidence would open the door to conjecture
and speculation as to how much time a prisoner serves of a sentence
and distract jurors from the relevant issue of what is the appropriate
sentence for the murder conviction. Regarding this issue appellant’s
brief states “[T]he state argued that [appellant] would be eligible for
parole after serving the mandatory minimum.” Appellant, however,

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      makes no record reference to support that statement; nor has our
      independent review of the record revealed support for that statement.
      As we stated regarding the previous issue, our review of the record
      causes us to find that the State did not violate Hitchcock v. State, 673
      So. 2d 859, 860 (Fla. 1996), by injecting appellant’s future
      dangerousness into its evidence or argument. We conclude that the
      trial court followed our precedent and did not abuse its discretion in
      respect to this issue.

Bates v. State, 750 So. 2d 6, 10–11 (Fla. 1999) (footnote omitted). I note that in

his concurrence, Justice Shaw of the Florida Supreme Court emphasized that the

question posed by the resentencing jury indicated that they were clearly confused,

and the court should have just answered with a simple “Yes” in response to

whether the jury was limited to life with a minimum of 25 years or the death

penalty, and “No” in response to whether they could recommend life without the

possibility of parole. Id. at 20 (Shaw, J. concurring). There was also a vigorous

dissent in which Florida Supreme Court Justice Anstead, along with two other

Florida justices, held that the majority’s refusal to accept Bates’s waiver of his ex

post facto rights was “unnecessarily harsh and inconsistent with . . . prior case

law.” Id. at 20 (Anstead, J., dissenting). In fact, Justice Anstead explained that

such a waiver would be consistent with prevailing legislative policy, as indicated

by the legislative amendment itself, and that the court has repeatedly recognized

that a defendant can waive his constitutional protections. Id. at 21 (citing Bowles

v. Singletary, 698 So. 2d 1201 (Fla. 1997); Melvin v. State, 645 So. 2d 448 (Fla.

1994)).

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      Nevertheless, upon review of the relevant Supreme Court precedent, I agree

with the Majority here that the Florida Supreme Court’s adjudication was not

contrary to, or an unreasonable application of, clearly established federal law.

With respect to Bates’s first two claims, the state court had previously held that

this statute was not applicable to crimes committed before its effective date, and

there was nothing in its legislative history to indicate that defendants could choose

which sentencing statute would apply. Bates, 750 So. 2d at 10; see Hudson v.

State, 708 So. 2d 256, 262 (Fla. 1998). Further, Bates has cited no federal law

requiring or even allowing a defendant to waive the laws applicable to his

sentencing, regardless of whether such a waiver would be favorable to him or not.

      However, Bates’s third claim, regarding the jury’s knowledge about his

other convictions, gives me much pause. The Florida Supreme Court explicitly

rejected Bates’s argument that the fact that he was already sentenced to two life

terms plus 15 years and that those sentences were to run consecutively to the

sentence for murder was relevant mitigation “in the sense that [it] might serve as a

basis for a sentence less than death.” Bates, 750 So. 2d at 11. The Florida

Supreme Court continued to say:

      These other sentences are not relevant mitigation on the issue of
      whether appellant will actually remain in prison for the length of those
      sentences. The length of actual prison time is affected by many
      factors other than the length of the sentence imposed by the
      sentencing court. The introduction of this evidence would open the
      door to conjecture and speculation as to how much time a prisoner

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      serves of a sentence and distract jurors from the relevant issue of what
      is the appropriate sentence for the murder conviction.

Id. Cutting against the Florida Supreme Court’s finding that such evidence would

be irrelevant, longstanding Supreme Court precedent explicitly holds that evidence

which may call for a penalty less severe than death is relevant in a capital

sentencing. See Mills v. Maryland, 486 U.S. 367, 367–77, 108 S. Ct. 1860, 1867

(1988) (holding that “the risk that the death penalty will be imposed in spite of

factors which may call for a less severe penalty is unacceptable and incompatible

with the commands of the Eighth and Fourteenth Amendments”); Lockett v. Ohio,

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

Fourteenth Amendments require that the sentencer, in all but the rarest kind of

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

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

that the defendant proffers as a basis for a sentence less than death” (emphasis and

footnote omitted)).

      One of the primary factors that any sentencing body must consider is the

need for incapacitation of the defendant in order to protect the public. See, e.g., 18

U.S.C. §3553(a)(2)(c) (stating that one of the primary needs of a sentence is to

“protect the public from further crimes of the defendant”). In this case, the

resentencing jury was undoubtedly interested in incapacitating Bates because it

asked if it could impose a life sentence instead of the death penalty, indicating that

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some jurors wanted to incapacitate Bates, without the possibility of parole, for

longer than the 12 years remaining on the 25-years-to-life sentence that Bates

would have received if the jury had voted against death. Admittedly, guaranteed

life without parole was not an option even if Bates’s other sentences were

considered because it appears that under Florida’s previous system of parole, Bates

would have been eligible for review for parole, at an absolute minimum, 12 years

after the end of his sentence for the first degree murder conviction.11 However,

given the jury’s question, we do not see any limiting principle in Lockett that

would render it inapplicable. Indeed, the fact that Bates would be, at a minimum,

incarcerated for an additional 12 years following his sentence for first degree

murder, bringing total incarceration if the jury voted against death to at least

another 24 years, is a “mitigating factor . . . that the defendant proffer[ed] as a

11
   To understand Bates’s argument, it is critical to understand the options presented to the jury.
The jury was given two choices: vote for death or for a term of life with the possibility of parole
after 25 years. Bates had already served 13 years in prison, so the jury believed it had a choice
between death or a life sentence with the possibility that Bates would be a free man in as few as
12 years. The actual consequences of the jury’s vote were quite different. Bates had been
convicted of three other crimes, leading to two additional life sentences and a 15-year sentence,
all to run consecutively. As the Majority explains, each of these sentences carried the possibility
of parole. For each of the two life sentences, Bates would serve a minimum of five years, and
for the 15-year sentence, he would serve at least an additional two years. In total, these other
sentences guaranteed that Bates would spend, at the very least, an additional 12 years in prison
without eligibility for parole, on top of whatever sentence the capital sentencing jury selected.
Thus, while the jury believed that if it did not vote for death, Bates might be free in 12 years, in
reality, if the jury did not vote for death, Bates could not have been paroled for at least 24 years.
In other words, a vote for life would have left Bates incapacitated for at least twice as long as the
jury believed.
Misinformed as it was, the jury’s vote for death was still fairly close: 9-3. It seems reasonable to
infer that some jurors who did not believe that 12 years of incapacitation was enough might have
believed that 24 years was.


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basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S. Ct. at 2964. It

is clear from the jurors’ question that incapacitation was important to them, but on

this critical issue, the jury was kept in the dark. 12

       We recognize that Simmons v. South Carolina made a jury instruction on

parole ineligibility mandatory only in a context where lifetime ineligibility was at

issue, only in the context of rebutting aggravating evidence, and only where the

jury itself had a life without parole option. 512 U.S. 154, 175, 114 S. Ct. 2187,

2200 (1994) (O’Connor, J., concurring) (holding that when the state raised the

specter of a defendant’s future dangerousness, the court violated his due process

rights by refusing to instruct the jury that, as an alternative to a capital sentence,

the sentence of life imprisonment included absolutely no possibility of parole).

Simmons did not, however, either foreclose or explicitly extend that mandatory

instruction to eligibility for parole for a term of years rather than for a term of life

or to sentences rendered for other convictions not before the jury. Id.

Subsequently, Ramdass v. Angelone held that the instruction on ineligibility for

parole is only required when ineligibility is established with certainty as a matter of

state law. 530 U.S. 156, 166, 120 S. Ct. 2113, 2120 (2000). Thus, Ramdass also

does not foreclose applying the rule from Simmons in a case like this, where there


12
  Quite apart from the constitutional question presented here, it also seems to me that when we
ask jurors to make morally difficult life-and-death decisions, we ought to fully inform them of
the actual consequences of their choices.


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is certainty under state law that Bates would be ineligible for parole, at a bare

minimum, for a term of 12 additional years following the term served for the first

degree murder. Nor does Ramdass foreclose application of Lockett’s rule that

relevant mitigating evidence cannot be kept from a capital sentencing jury. Indeed,

the plurality in Ramdass permitted Virginia to insist on certainty before instructing

the jury on ineligibility for parole precisely because of how relevant ineligibility

for parole is to a sentencing jury. Id. at 180–81, 120 S. Ct. at 2127–28.13

       Furthermore, Lockett’s rule that defendants are entitled to present evidence

that may tend to prove to a jury that they deserve a sentence less than death may be

sufficiently clear to control this case, even under deferential AEDPA review of

state court decisions. See Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct.

2842, 2858 (2007) (“AEDPA does not require state and federal courts to wait for

some nearly identical factual pattern before a legal rule must be applied. Nor does

AEDPA prohibit a federal court from finding an application of a principle

unreasonable when it involves a set of facts different from those of the case in
13
  Further, I do not agree that this Court’s decision in Booker v. Secretary, Florida Department of
Corrections, 684 F.3d 1121, 1126 (11th Cir. 2012), forecloses Bates’s claim. In that case, which
presented itself upon habeas review, we found that even if the Florida Supreme Court’s
resolution of the claim “clearly violates the spirit of . . . Simmons, that does not mean that it
constitutes an unreasonable application of clearly established federal law, which thus far has only
addressed jury instructions in the circumstance of statutory parole ineligibility.” Booker, 684
F.3d at 1126 (internal quotation marks omitted). At most, Booker says that violating the spirit of
Simmons is not contrary to clearly established law. To be clear, I believe that Simmons and
Ramdass do not foreclose relief on this claim, and that relief is supported by the Supreme
Court’s decision in Lockett and Mills, but I ultimately conclude that, given AEDPA deference,
the Florida Supreme Court’s adjudication falls short of violating clearly established federal law
of the Supreme Court.


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which the principle was announced. The statute recognizes, to the contrary, that

even a general standard may be applied in an unreasonable manner.” (internal

citations omitted)). Thus, according to the Supreme Court’s holding in Panetti, the

evidentiary rules announced in Lockett and Mills need not specifically address the

instant factual scenario in order to be applied to grant habeas relief.

       I think it likely, given the highly relevant nature of incapacitation to jurors

when deciding whether to impose a capital sentence, that the Supreme Court would

conclude that due process requires including such relevant mitigation evidence in a

capital sentencing. Moreover, the trial court here, unlike the state trial court in

Ramdass, could have, without “conjecture and speculation,” Bates, 750 So. 2d at

11, told the jurors of the 12 years of guaranteed incapacitation that Bates would

have to serve in addition to what they imposed for the murder conviction.14 Cf.

Ramdass, 530 U.S. at 167, 120 S. Ct. at 2120 (holding that a Simmons instruction

was not warranted because defendant’s third conviction under Virginia’s three-

strike rule was not final under Virginia law at the time the jury considered the

murder sentence). Thus, I find the Florida Supreme Court’s reasons for refusing to

permit the jury instruction unpersuasive.


14
  We do recognize, however, that while Bates’s counsel asked the resentencing judge for an
instruction regarding his two additional life sentences and his 15-year sentence, to be served
consecutively, the only absolutely definitive period of incarceration, under Florida law at the
time, appears to be 12 years to run consecutively to Bates’s punishment for first degree murder.
The trial judge, when confronted with either counsel’s request or the jury’s subsequent question,
could have explained this to the jury.


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      Nevertheless, a competing principle announced by the Supreme Court in

California v. Ramos, that state courts are entitled to deference in determining what

evidence may go before a sentencing jury, combined with AEDPA’s deferential

standard of review, precludes us from applying Mills and Lockett to this case.

Ramos, 463 U.S. 992, 1001, 103 S. Ct. 3446, 3453 (1983) (stating that it is

ordinarily proper to “defer[] to the State’s choice of substantive factors relevant to

the penalty determination”). The Supreme Court further reiterated in Ramdass that

“States are entitled to some latitude [as] the admissibility of evidence at capital

sentencing . . . remains . . . an issue left to the States.” Ramdass, 530 U.S. at 169,

120 S. Ct. at 2122–23. Even the Ramdass dissent recognizes the discretion

typically afforded to state supreme courts: “This is not to say . . . that the

Constitution compels States to tell the jury every single piece of information that

may be relevant to its deliberations. Indeed, in California v. Ramos, we held it

ordinarily proper to defer to the State’s choice of substantive factors relevant to the

penalty determination.” Id. at 194–95, 120 S. Ct. at 2135 (Stevens, J., dissenting).

      Therefore, despite the Supreme Court’s holding in Panetti that “AEDPA

does not require state and federal courts to wait for some nearly identical factual

pattern before a legal rule must be applied,” 551 U.S. at 953, 127 S. Ct. at 2858, I

conclude that Supreme Court’s emphasis on the deference afforded to state courts’

evidentiary rulings under AEDPA, in light of the ambiguity in the law created by



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Simmons and Ramdass, precludes us from granting Bates habeas on this claim.

This highlights a troubling consequence of AEDPA case law: where a precedent

cannot obviously be extended to the case we have before us, and where the

Supreme Court has spoken in a tangentially related way to the situation at issue

without explicitly covering it, we figuratively throw up our hands, repeat the

refrain that AEDPA requires deference to state courts, and deny habeas relief. To

be clear, I believe that the Florida Supreme Court’s determination on this issue was

contrary to the rule articulated in Lockett and reiterated in Mills, but that the more

recent precedent in Simmons and Ramdass, although distinguishable, generates

sufficient ambiguity as to preclude relief in an AEDPA context unless or until the

Supreme Court tells us otherwise. For these reasons alone, I concur in affirming

the district court’s decision denying Bates habeas relief.




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