                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                FILED
                         ________________________      U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             JULY 21, 2011
                               No. 09-12977                   JOHN LEY
                         ________________________              CLERK

                 D. C. Docket No. 04-01447-CV-JDW-EAJ

RICHARD COOPER,

                                                     Petitioner-Appellant,

                                  versus

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

                                                     Respondents-Appellees.

                         ________________________

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

                              (July 21, 2011)


Before MARCUS, PRYOR and BLACK, Circuit Judges.

BLACK, Circuit Judge:
       Richard Cooper, a Florida death-row inmate, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Cooper was

granted a certificate of appealability on four issues; however, this opinion

addresses only two of the issues: (1) whether trial counsel was ineffective at the

penalty phase because counsel failed to investigate and present mitigating

evidence; and (2) whether Cooper is entitled to an evidentiary hearing on his

competency to stand trial.1

       Our primary focus in this opinion is on the first issue–whether Cooper’s

trial counsel was ineffective at the penalty phase because counsel failed to

investigate and present mitigating evidence. We must determine whether there is a

reasonable probability that, if the totality of Cooper’s evidence available in

mitigation had been heard, the sentencing jury and judge “would have concluded

that the balance of aggravating and mitigating circumstances did not warrant

death.” Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2069

(1984). In making this determination, we are required to “consider the totality of


       1
          Because Cooper is entitled to relief from the death sentence on his claim of ineffective
assistance of counsel at the penalty phase for failure to investigate and present mitigating
evidence, we need not decide whether trial counsel was ineffective in his investigation and cross-
examination of state witness Paul Skalnik during the penalty phase, or whether direct appeal
counsel rendered ineffective assistance by filing a brief that failed to raise a Caldwell v.
Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985), violation during Cooper’s penalty phase, as
both issues deal with the penalty phase of Cooper’s trial.

                                                2
the evidence before the judge [and] jury.” Id. Therefore, we will detail the

evidence presented to the jury and judge at both the guilt and sentencing phases of

Cooper’s trial. We will then set forth the mitigating evidence presented at the

postconviction evidentiary hearing to determine whether the absence of such

evidence at sentencing undermines our confidence in Cooper’s sentence of death.

              I. FACTUAL AND PROCEDURAL BACKGROUND

      In the early morning hours of June 18, 1982, the Clearwater Police

Department received a phone call from a tearful, frightened eight-year-old boy

named Chris Fridella. He said that robbers had come into the house, and that his

father was dead. The call was traced to 6351 143rd Avenue, a small, somewhat

isolated home in the High Point area of Pinellas County, Florida. The Sheriff’s

Office responded and found Chris, who had been left unharmed, and the bodies of

three men: Steven Fridella–Chris’s father; Gary Petersen–Chris’s uncle; and

Bobby Martindale–a friend who lived with them in the house. The men had been

killed with shotguns. They were lying face down on the living room floor, their

hands bound behind them with duct tape.

      Approximately seven months later, Cooper and three others were arrested

and charged with the murders of Fridella, Petersen, and Martindale.




                                         3
A. Trial

       Cooper’s trial was held over five days, January 10-14, 1984. The guilt

phase of the trial lasted four days. The State called 16 witnesses. Cooper called

no witnesses and did not testify on his own behalf.

       1. Guilt phase

       Detective John Halliday testified he arrived at the crime scene at

approximately 3:50 a.m. on June 18, 1982. Chris was in the northeast bedroom of

the home, and was removed from the house as soon as possible.2

       Sergeant Jarrell Britts, of the Pinellas County Sheriff’s Office, testified that

upon arriving at the crime scene, the television was playing at full blast. He and

one other deputy walked up to the front of the house, while another deputy went to

the rear of the house. He looked in through the front windows and observed three

men lying dead on the floor. The men had been shot, and their hands were taped

behind their backs. Some shotgun shells were found on the front porch. A

technician covered the shells with plastic because there was a torrential downpour

that night. Inside, the house had been ransacked.


       2
           A psychiatrist who examined Chris testified that since the crime, Chris had a tendency
to fantasize about what happened during the crimes. The psychiatrist opined Chris had
developed a stress syndrome and the experience he had been through would affect his ability to
give reliable information. Thus, the psychiatrist thought it would be detrimental for Chris to
testify at trial.

                                                4
       The crime went unsolved for seven months. Detective Halliday testified

that on January 15, 1983, he received a call from Robin Fridella, the ex-wife of

Steven and mother of Chris. She gave him information that was not of public

knowledge about the crime. The information provided led him to believe he

should interview Terry Van Royal, J.D. Walton, and Cooper. He, along with

Detective Ron Beymer, first met with Cooper on January 20, 1983. After Cooper

was advised of his Miranda rights, he confessed to his role in the crime.3

              a. Cooper’s first confession

       Detectives Beymer and Halliday testified regarding Cooper’s first

confession. Cooper explained that he, Van Royal, Walton, and Jeff McCoy had

planned for about a week to come from Hernando, Florida to the Clearwater,

Florida area to rob the three victims of money, cocaine, and other drugs, tape up

the victims, and then leave them. On June 17, 1982, at 11:30 p.m., the four co-

defendants4 met at Walton’s house. They had masks, gloves, two shotguns, a .357

Magnum, and a .22 caliber rifle in the trunk of a 1961 Chevelle. On their way to


       3
           This was Cooper’s first confession to the detectives. Cooper made a second confession
when he met with Detectives Halliday and Beymer again on January 24, 1983. Both confessions
were introduced through the detectives’ testimony at trial. Cooper changed some details of his
story in the second confession. This opinion will detail both confessions.
       4
         Although Cooper, Walton, Van Royal and McCoy were not tried together, for ease of
reference this opinion will refer to them as co-defendants.

                                               5
Clearwater, they were stopped by a policeman because they had a taillight out. It

was raining very hard, and the policeman gave them only a verbal warning. When

the four co-defendants arrived at the location of the murder, they parked on the

roadway at the end of the long driveway. McCoy remained in the vehicle, while

Cooper, Walton, and Van Royal proceeded to the trunk of the car to put on their

masks and gloves. Cooper claimed he grabbed a shotgun belonging to McCoy,

although he was unsure what type of shotgun it was. Van Royal grabbed his own

Mossberg shotgun, and Walton grabbed the .357 Magnum, which also belonged to

McCoy. They had to walk approximately half of a block to get to the residence.

      Walton lowered himself to the squatting position and opened the unlocked

door to the residence. Walton entered the home first, followed by Cooper and Van

Royal. When they entered the house, Cooper first taped up Chris Fridella and took

him into the bathroom. All of the adults in the house were brought into the living

room. Cooper stood guard over them with his shotgun while Van Royal taped

them up and laid them on the floor. He and Van Royal went through the victims’

wallets, and found only $2.00. Walton was ransacking the house at this time,

looking for drugs and money. Cooper went to the back bedroom where he found

Walton, and Walton told Cooper that “we’re going to waste them.” Cooper then



                                         6
walked back in the living room to inform Van Royal they were going to kill the

victims. Van Royal said that he was not going to kill anybody.

      Cooper stated that as he and Van Royal were standing by the doorway of the

living room, Walton came into the living room and went over to Steven Fridella.

Walton pointed his .357 Magnum at Fridella’s head and started pulling the trigger,

clicking it, and trying to get it to fire. Walton pulled the trigger back three times.

Cooper said it appeared as though the weapon was not firing. Cooper had

previously seen Walton put a shell into the .357. After trying to get it to fire three

times, Walton started screaming, “shoot him, shoot him” multiple times. At that

point, Van Royal fired his shotgun three to four times.

      Cooper claimed he fired his shotgun one time, and then started running out

of the house. Walton was still in the house at that time. Walton ran out of the

house, yelled to Cooper that one of the victims continued to move, and called

Cooper back inside. Cooper went back to the doorway and fired again. Cooper

stated he fired at Fridella’s head and left the house. At that point, the four co-

defendants left in their vehicle and headed back to Citrus County, Florida.

      Detective Beymer testified Cooper was very matter-of-fact and unemotional

during this first confession. He had also interviewed Walton, McCoy, and Van

Royal. Detective Beymer testified Walton initially appeared very nervous and

                                           7
meek, although he became calm later in the interview. He further recalled both

McCoy and Van Royal crying during their interviews.

                b. Cooper’s second confession

       Detectives Beymer and Halliday testified they interviewed Cooper again on

January 24, 1983. Cooper changed his story somewhat from his first confession.

In this second confession, Cooper disclosed he did not shoot Chris Fridella

because on the co-defendants’ trip to Pinellas County to commit the crime, Walton

stated he did not want any harm to come to the little boy. Later in the second

confession, Cooper changed the timing of the comment and said the conversation

in which Walton told them not to harm Chris happened once they got to Fridella’s

house. Further, instead of McCoy staying in the car, Cooper revealed McCoy

came into the house with them, wearing a mask and gloves and armed with a .22

caliber rifle. Cooper claimed McCoy taped up Chris Fridella and the three

victims, while he and Van Royal stood over the victims with their shotguns.

Walton told McCoy to get out of the house and go back to the car before the

shooting began. Cooper related he had not told them the truth about McCoy’s

involvement earlier because they had all made a deal not to get McCoy involved in

the incident.




                                          8
      Detective Halliday testified Cooper also changed his story to reflect that

instead of Van Royal stating he did not want to kill anyone, it was Cooper himself

who made that statement. After Walton informed him they were going to “waste

them,” Cooper stated he did not want to kill anyone, and he went to the living

room and told Van Royal he was not going to kill anybody. Another change from

the first confession was that instead of $2.00 being taken from the wallet, Cooper

claimed $5.00 was taken. He further admitted to taking some type of knife from

the residence, and he revealed that Van Royal had stolen a clock and Walton had

taken a small set of scales.

      In this second confession, Cooper went into more detail regarding the shots

he fired. Cooper admitted he fired once at Fridella’s chest and missed. He left

after the first time he shot and missed, but was called back to the house by Walton

and fired again at Fridella. Cooper stated he knew he hit Fridella with the second

shot because he saw blood. He claimed he shot only twice, and he felt that he had

shot at the same person. Cooper further revealed he had been smoking marijuana

and drinking alcohol that day, but was fully aware of what he was doing and was

not intoxicated.

      Cooper maintained Walton ordered the others around once they were in the

house, and Walton had planned the whole incident. They had planned to go into

                                         9
the house while the victims were asleep so they could get into the house without a

problem. He further claimed Walton was a Charles Manson-type figure.

             c. Evidence

      Detective Halliday testified he seized three weapons from McCoy’s

house–the .22 caliber rifle, the .357 Magnum, and a Savage .12 gauge shotgun.

Detective Halliday also recovered a roll of duct tape out of McCoy’s vehicle,

which McCoy stated was used in the crime. From Van Royal’s house, detectives

seized his Mossberg shotgun. A partially sewn up ski mask was found in the

closet of the bedroom Cooper occupied in his stepfather’s house in Hernando,

Florida. In his interview with detectives, Cooper had indicated he had thrown the

mask away.

      Medical Examiner Joan Wood testified Petersen had one gunshot wound to

his back. Martindale had two wounds, one to the back and one to the head.

Fridella had three shotgun wounds, one to the left chest just in front of the armpit

and two to the right side of the neck. Dr. Wood opined that the gunshot wounds

were intermediate range shots, in the range of three to eight feet.




                                          10
       FBI Special Agent Robert Siebert testified as a qualified expert in the field

of firearms identification, including ammunition components.5 Six shotgun shells

were found at the scene. One was a Winchester shell originally loaded with

number four lead shot, two were Sears shells also loaded with number four lead

shot, and three were Montgomery Ward shells loaded with number four steel shot.

Agent Siebert determined the six shells were fired by two different shotguns. The

Mossberg shotgun, carried by Van Royal,6 fired the Winchester shell and one of

the Montgomery Ward shells. The Savage shotgun, carried by Cooper,7 fired the

two Sears shells and remaining two Montgomery Ward shells.

       The Savage shotgun had a plug, and was therefore restricted to two shells in

the magazine with the potential of an additional shot in the chamber. With the

plug in the Savage, the maximum number of shells that could be fired from it

without reloading was three. Agent Siebert explained that to remove the plug

from the Savage shotgun, one would have to take a screwdriver and disassemble



       5
           While Agent Siebert never summarized his findings in his testimony, in our summary
of his testimony we include evidence from other portions of the trial, i.e., which defendant
carried each gun.
       6
           In Cooper’s confession, he stated that Van Royal grabbed his own Mossberg shotgun.
       7
         In Cooper’s confession, he stated that he grabbed a shotgun belonging to McCoy,
although he was unsure what type of shotgun it was. The Savage shotgun was recovered from
McCoy’s residence.

                                               11
it. As there were four shots fired from the Savage Cooper was carrying, Cooper

would have either had to remove the plug in advance and load the magazine with

four shells or have reloaded with at least one round, or possibly two rounds if

there was not a round in the chamber.

      As to the items removed from the body of Gary Petersen, Agent Siebert

testified there was a plastic shot cup and lead shot, which was consistent with the

wound having been inflicted by a Sears shell. As the two Sears shells were shot by

Cooper’s Savage shotgun, Peterson’s single, fatal wound was inflicted by Cooper.

      As to the items retrieved from the body of Bobby Martindale, Agent Siebert

testified there was a lead number four size shot, a composite containing plastic and

fiber wads and fiber fragment, and 19 lead pellets consistent with the type loaded

into Sears shot shell casings. Additionally, one steel pellet was retrieved,

consistent with a Montgomery Ward shell. Agent Siebert concluded Martindale’s

two wounds were inflicted with a Sears shell, shot by Cooper’s Savage, and a

Montgomery Ward shell, shot by either Cooper’s Savage or Van Royal’s

Mossberg.

      As to the items retrieved from the body of Steven Fridella, there were 24

steel pellets and a large plastic shot cup of the type loaded into the Montgomery

Ward shot shell casings. Further, two lead pellets, a cardboard over powder wad,

                                         12
and two fiber wads consistent with a Winchester shell were also retrieved. This

evidence would indicate Fridella was shot with both a Montgomery Ward shell,

shot by either Cooper’s Savage or Van Royal’s Mossberg, and a Winchester shell,

shot by Van Royal’s Mossberg. The Mossberg shot only two shells, however, and

Fridella was shot three times.8 Assuming two of the shells found in Fridella were

shot by the Mossberg, the remaining shot necessarily would have to be inflicted by

Cooper and the Savage shotgun.

       In summary, testimony from the Medical Examiner and the firearms

identification expert, taken together, establishes Cooper fired at least four times

with the Savage shotgun. Petersen was shot once with Cooper’s Savage shotgun.

Martindale was shot twice, once by Cooper’s Savage shotgun, and once by either

Cooper’s Savage or Van Royal’s Mossberg. Fridella was shot three times, once by

Van Royal’s Mossberg, once by Cooper’s Savage, and once by either Van Royal’s

Mossberg or Cooper’s Savage. Each of the three victims was shot with the Savage

shotgun Cooper admitted carrying and using.




       8
        Agent Siebert’s testimony identified two shells retrieved from Fridella’s body. Medical
Examiner Wood’s testimony established Fridella was shot three times.

                                              13
               d. Cooper’s theory of defense and guilt phase verdict

       As stated earlier, Cooper did not call any witnesses at trial,9 and did not

testify on his own behalf. Cooper’s theory of defense was that he was not guilty of

first-degree murder. Rather than asserting Cooper was not involved in the

murders, his attorneys urged the jury to find him guilty of second-degree murder.

They asserted Walton was the mastermind behind the plan, and Cooper just

followed Walton’s orders. They further argued Cooper must have been mistaken

about the gun he was carrying on that rainy night, and Cooper was actually

carrying the Mossberg shotgun.

       The jury found Cooper guilty of first-degree murder as to all three counts.

       2. Penalty phase

               a. Jury sentencing recommendation

       At the one-day penalty phase before the jury, the State presented two

witnesses, and the defense presented one witness. The State first presented the

testimony of Paul Skalnik. Skalnik and Cooper were cellmates for approximately



       9
          When Cooper was prosecuted in 1984, the defense was entitled to the concluding
argument before the jury if a defendant offered no testimony on his own behalf except his own.
See Fla. R. Crim. P. 3.250 (1984). Since Cooper’s trial, the Florida Legislature enacted § 918.19,
Florida Statutes (2007), providing that the State shall give opening and rebuttal closing
arguments. Correspondingly, the Rules of Criminal Procedure were amended, confirming that
the State is entitled to opening and rebuttal closing arguments even if the defense presents no
case-in-chief. See Beasley v. State, 18 So. 3d 473, 492 n.5 (Fla. 2009).

                                               14
two to three weeks in May or June of 1983. Skalnik testified he had no prior

knowledge of the homicides in this case before sharing a cell with Cooper.

Skalnik stated that within an hour of meeting, Cooper initiated a conversation with

Skalnik, claiming he was “one of the men involved in the triple murder slayings

they thought was a Mafia gangland killing.” He stated they chose Fridella’s house

because Walton told Cooper “he was ripped off for cocaine and twenty dollars in

cash,” and Walton wanted to “even the score.” Cooper’s reward for going along

with the plan was to receive either part of the narcotics or money they were

planning to steal from the home.

      According to Skalnik, Cooper described the evening of the murders to him.

Cooper stated Van Royal fired first, and Cooper fired second. On one occasion,

Cooper indicated to Skalnik he had only fired two shots during the crime. On a

later occasion, Cooper mentioned he fired more. When Skalnik asked him how

many times he fired, Cooper stated “oh no, that was an error, I fired only twice.

I’ll take responsibility for only killing one.” Cooper further stated when he was

over Fridella, he was begging for his life because of his son. Cooper admitted

shooting Fridella and the shot going across Fridella’s chest. He and Van Royal

fired five shots before they left the house. Cooper then stated they headed back to

their car, and someone hollered to Cooper “the man that you shot on the end is

                                         15
getting up.” Cooper stated he ran back to the house and put another shell into the

shotgun. The man had gotten to his knees. Cooper put the shotgun up near the

back of his head and shot. Then Cooper, Walton, Van Royal and McCoy left.

      Cooper also told Skalnik the location of his ski mask. Cooper stated the

mask was in his stepfather’s home either in a drawer or a box. Skalnik later told

law enforcement the location of the mask. Detectives then found the mask exactly

where Skalnik said it would be. The State’s other witness during the penalty

phase, Detective Halliday, testified Cooper told him during his confession that all

the masks and gloves used in the homicide were thrown into a trash can at

Walton’s trailer and were taken away with the rest of the trash. In June 1983,

Detectives Halliday and Beymer interviewed Skalnik. Skalnik described the mask

and told them Cooper had stated it was either in a drawer or a box in his

stepfather’s house. Detectives found the mask based solely on Skalnik’s

information.

      During defense counsel Ky Koch’s cross-examination of Skalnik, Skalnik

stated Cooper indicated Walton was the older one in the operation,10 and Walton

was yelling during the crime because he was upset. Koch elicited from Skalnik

that he had provided information to various law enforcement agents about nearly


      10
           Cooper was 18 years of age when the murders were committed.

                                             16
30 defendants, and that he was a former police officer. Skalnik was currently in

jail on five counts of grand theft and was serving a state prison sentence, but

remained in the Pinellas County Jail at the request of his lawyer. The cross-

examination also revealed that several of the defendants about whom Skalnik had

provided information were charged with murder in the first degree. Further,

Skalnik was charged in the past with masquerading as a lawyer.

      On redirect, Skalnik testified no one had promised him anything for

testifying against Cooper. Skalnik’s understanding was that he had no chance of

getting his sentence reduced.

      The defense called Juanita Kokx, Cooper’s mother. Cooper was the only

child from her marriage to Cooper’s father, Phillip Cooper. Kokx had one

daughter from a previous marriage, and Phillip Cooper also had children from a

previous marriage. Cooper was born and spent his early childhood years in Ohio.

Kokx testified there were no problems in her marriage nor any stress during

Cooper’s earliest years in Ohio. This changed when Cooper was six years old.

Kokx and Phillip separated because Phillip was seeing another woman and had

become violent. On one occasion he kicked the windshield of a car in Kokx’s face

and brought her in front of the children while she was hysterical. He told the

children: “This is your mother, look at her.” All of the children were quite young

                                         17
at the time. She took Cooper and her daughter and moved to another town 150

miles away where her mother lived. After a six-month separation, Kokx

reconciled with Phillip. Kokx and Phillip decided to get back together and move

to Arizona to start over again. They took some of the children to Arizona,

including Cooper.

      When they moved to Arizona, Phillip got a job working for a mobile home

company. They later bought their own property and a double wide mobile home

and “things seemed to be going quite well.” After five years of relative calm in

Arizona, Phillip again became involved with another woman. The violence started

again. During this period of time, Phillip was “very hard on the children and when

he did discipline he used a belt,” leaving marks on the children. Phillip was very

authoritarian with the children, including Cooper.

      Kokx received further injuries from Phillip during this time. Although he

did not witness the injuries, Cooper knew about them. Phillip once crushed the

side of Kokx’s face with a blow, and she had to have surgery and a plate put in her

face. The children, including an 11 or 12-year-old Cooper, sat with her while she

recovered from that injury. Kokx and Phillip separated again for several months

after her surgery. She left and took Cooper, one of Cooper’s brothers, and her




                                        18
daughter. They moved to a town close to where she was working at the time.

Cooper and his brother subsequently left to move back in with Phillip.

       Kokx and Phillip reconciled again and were together for two years before

Phillip was once again violent with Kokx. At one point, Phillip saw Cooper in

town, and Cooper ran away from Phillip. This angered Phillip, who returned home

and grabbed Kokx and beat her head on the door and choked her. Cooper banged

on the door until Phillip finally opened it, and Kokx got away from Phillip. The

police were called by Kokx’s daughter. The police tried to arrest Phillip, and he

was abusive toward the deputy. The deputy had Phillip on the ground to arrest

him, but Phillip got away. A 13-year-old Cooper watched all of this unfold, and

“felt that it was his fault because the father was angry because he had ran from

him. He felt like he caused it.” Phillip turned himself in the next day and spent

ten days in jail. Kokx once again left Phillip, this time for good. She then moved

to Florida, leaving the children with Phillip.

      Phillip did not spend a lot of time with the children and did not show them a

lot of affection. Phillip did not participate in activities with Cooper, like taking

him fishing or to the movies. Phillip also used profanity toward the children.

Kokx felt that although Cooper had times when he was afraid of his father, he

loved his father.


                                          19
      After she moved to Florida, Kokx received a call from Phillip that he had

lung cancer and had only six months to live. The children, including Cooper, were

still living with him and were present as he went through his illness. Phillip died

when Cooper was 16 years old.

      After Phillip passed away, Cooper lived with an older sister and some of his

brothers in Arizona. Cooper later moved back to Ohio to live with another

brother. When Cooper was 18, he came to live with Kokx in Florida. She and her

husband tried to be a family with Cooper, taking him out in the boat and going

bowling.

      Kokx testified Cooper does not show his emotions easily. He reacts to

stressful situations by holding everything in. Cooper had always shown a lot of

affection to her, but she could tell Cooper was very hurt over his father’s death.

Cooper is not an assertive person. When he first came to live with her in Florida,

he felt he was worthless. She tried to encourage him to go back to school, but he

did not believe in himself. There were times that he expressed an interest in going

back to school to get his education and make something of himself. Cooper never

gave her any indication he was a violent person. He worked for about a month

while he lived with her in Florida, but he did not have transportation so he could

not make it to work on a regular basis. She noted that while in jail, Cooper wrote


                                         20
a letter to co-defendant Jeff McCoy that was returned to Kokx’s address. This

letter was admitted into evidence to show Cooper’s remorse for the crimes.11

       In the State’s closing argument, the prosecutor emphasized the “brutal,

gruesome, horrendous” nature of the extremely aggravated triple homicide. The

prosecutor stated, “I think it would be obvious to anyone when you murder three

people that is something that is extremely aggravated.” He further argued: “One

murder is terrible, it’s a terrible thing, but a triple homicide is something that is

almost unthinkable even in the normal terms even though we are used to a lot of

crime.” The fact Cooper killed three people took the crime “out of the category of

a normal homicide, normal first degree murder, if there is such a thing, and puts it

in a category far beyond anything you have ever been exposed to.” The State

argued six aggravating circumstances were established by the evidence: (1) the

defendant was previously convicted of a capital felony because he was found


       11
            The letter stated:

       I’m really sorry that we had to get involved in this mess. All we can do is pray to
       God, for help. They already know that I got scared and I did one in after Terry did
       two of them in first. I guess you already know that we can spend the rest of our
       life in prison or get the death penalty. I pray that we do not have to spend the rest
       of our life in prison. I know that you should not get too much time out of these.
       Just pray for forgiveness and mean it in your heart. If you talk to the Judge just
       tell him what happened and how me and you felt about this.

Cooper also wrote that he loved Jeff and loved his mother. Cooper wrote that he knew they had
hurt a lot of people and he was sorry for that.

                                                21
guilty of three counts of first-degree murder; (2) the murders were committed

during a kidnapping; (3) the crime was committed for the purpose of hindering a

lawful arrest; (4) the crime was committed for pecuniary gain; (5) the murders

were especially heinous, atrocious, or cruel; and (6) the murders were committed

in a cold, calculated, and premeditated manner without any pretense of moral or

legal justification.

       The prosecutor characterized Kokx’s mitigation testimony as “more an

attempt to curry favor and create sympathy and not to establish any relevant or

appropriate mitigating circumstance.” As to establishing mitigating

circumstances, the prosecutor stated: “When their big chance came to establish

mitigating circumstances what did you hear? You heard one witness.”

       The prosecutor argued the defense had not established the mitigating

circumstances of substantial domination or the age of the defendant at the time of

the crime. The prosecutor emphasized the dearth of evidence presented on these

mitigating circumstances, stating: “Of all the people that may [have] been

associated with this man, because he is a man, he is an adult and he was an adult at

the time of the crime, of his brothers and sisters, of the people he has met in the

three states he has lived in over the last five to ten years one person came.”




                                          22
      As to the general mitigating circumstance of the defendant’s character, the

prosecutor argued:

      They can come in, they can come in and they can–they can develop
      just about anything that you might want to hear. And what did you
      hear? Well, you heard that his mother was married to a violent man
      and that he abused her. What has that got to do with the defendant?
      The suggestion was made, well, gee, the defendant saw all this
      terrible stuff, and that’s unfortunate, but what was the defendant’s
      response to it? His mother had made efforts, made efforts to have
      him live with her. He went and lived with his father. That was his
      choice. Was he so traumatized by anything that it would affect his
      character any way?

The prosecutor further argued Cooper did not have remorse for the crime,

contrasting his unemotional, matter-of-fact interview with the interviews of

McCoy and Royal, who both cried, and even Walton, who was a little nervous.

The prosecutor then emphasized Cooper had bragged to Skalnik about the crimes.

      In the defense’s closing argument, defense counsel emphasized that Cooper

was a robber and burglar up until the point Walton ordered Cooper to kill the

victims. The defense characterized Cooper’s shooting of the victims as a

“criminal explosion” that “happened only over the course of seconds.” The

closing argument emphasized Walton was the ringleader and Skalnik’s testimony

was not credible. As to the aggravating circumstances, if they did exist they

happened in the course of the “criminal explosion.”

      The defense argued Cooper was entitled to mitigation for three reasons.
                                        23
First, Cooper confessed when the police came to him. Second, Cooper was under

the substantial domination of Walton. With respect to substantial domination, the

defense argued:

      [W]hat Mrs. Kokx told you that is . . . absolutely critical . . . is about
      Richard Cooper’s background, what . . . was he like as a kid, what
      was his family life like, and it was horrible, it was tragic and it’s
      something that none of us have experienced I’m sure. Something that
      none of us can identify with that it put Richard Cooper in a position
      of being in Florida with a father whom he had watched die of cancer
      and knowing absolutely no one and getting involved in knowing,
      associating with J.D. Walton.

Third, the defense argued the mitigating factor of Cooper’s age at the time of the

offense. He was only 18 at the time of the offense.

      The jury recommended the death penalty for each count. As to Count One,

Gary Petersen, the vote was 9-3 in favor of death.12 As to Counts Two and Three,

Bobby Martindale and Steven Fridella, the vote was 7-5 in favor of the death

penalty.

                b.     Judge’s Sentencing Hearing and Findings

          The defense called one additional witness at the sentencing hearing before

the judge, Dr. Sidney Merin, a clinical psychologist and clinical neuropsychologist

who had examined Cooper. Dr. Merin was not called before the jury for strategic


      12
           The evidence established Petersen was shot only with the Savage shotgun carried by
Cooper.

                                               24
reasons. Cooper told Dr. Merin he had fired four shots, which conflicted with

Cooper’s confession in which he only admitted firing two shots. Thus, Cooper’s

attorneys decided Dr. Merin’s testimony would actually hurt Cooper before the

jury.

        Dr. Merin testified he had given Cooper a battery of psychological tests,

taken his history, and conducted a clinical interview. Dr. Merin concluded Cooper

had a markedly disturbed personality–a character disorder together with a number

of other characteristics. He found Cooper to be an emotionally unstable individual

who was self-destructive and impulsive. Merin testified those characteristics were

typical responses to the “horrendous background” Cooper had. Merin testified

Cooper’s father was “exceptionally abusive, both physically and verbally.”

Cooper had a seventh-grade education and failed a number of grades in school.

Cooper began drinking and using drugs at 11 years of age, getting drunk every

chance he could. He also began using marijuana and Quaaludes, spending $200-

$300 a month on drugs. He began seeing a psychiatrist at that time because he

was skipping school and was described as scared and nervous. He was involved in

shoplifting, breaking and entering, and disorderly conduct. Cooper estimated he

had shoplifted approximately 150 times and indicated he could not go into a store

without picking up something.


                                          25
       Merin’s testing and own observations fit with the verbalized history from

Cooper. Dr. Merin identified four diagnostic characteristics in Cooper’s

personality: (1) antisocial personality; (2) borderline personality disorder;

(3) substance abuse disorder; and (4) isolated explosive disorder. Merin opined

Cooper was “emotionally unstable” and had a “destructive personality.” Cooper

was not a reflective person, and his perception of what occurs around him was

twisted. He responded to strong stimuli with chaotic feelings of both fear and

excitement or with contradictory impulses to obey and defy. Merin opined Cooper

had a follower type of personality and was capable of mindlessly reacting to the

domination and to the direct emotional commands of a more powerful figure.

Cooper was easily suggestible by a fearsome authoritative figure who in his mind

was reminiscent of the terror-filled years he had with his abusive father. Cooper

tried to cover up his inferiority by attempting to be a braggart. He could not plan

and was opportunistic and unsophisticated.

       As to Cooper’s behavior at the time of the murders, he felt there was no

specific intent to kill at the time he went into the dwelling, and the murders were

not premeditated.13 Merin viewed the incident as a panicked reaction to Walton’s

       13
          During Merin’s testimony at the postconviction evidentiary hearing, he changed his
opinion on premeditation. In his later testimony, he testified he changed his opinion when he
learned Cooper went back into the house to shoot Fridella and now believed the last shot was
premeditated.

                                               26
emotional and hysterical command. Merin opined the shooting was an impulsive

and mindless act consistent with other traits in Cooper’s criminal personality. He

considered Cooper’s behavior “an automatic reaction as though he were

instantaneously responding to the angry, to the intimidating and fearsome

command earlier in life of his father.”

      During Merin’s cross-examination, he related that Cooper had admitted to

him he fired four shots during the crime. Cooper admitted one was fired at one

victim, two at another, and one at the third victim. Dr. Merin also opined Cooper

could be a chronic liar, who could lie in critical situations. Cooper was also a

chronic thief who was continuously fighting. Merin wished he could have done

neurological tests on Cooper, but no neurological tests were conducted. Merin

stated Cooper behaved as an individual who had prefrontal lobe impairment.

Merin opined Cooper had a defective conscience, and he would be surprised if

Cooper could be rehabilitated in 25 years.

      The judge also received statements from some of the victims’ family

members. All of the statements were supportive of Cooper receiving the death

penalty. After receiving closing statements from the State and the defense, the

judge orally sentenced Cooper to death, finding there were no mitigating

circumstances to outweigh the aggravating circumstances.


                                          27
      In his written findings as to the aggravating and mitigating circumstances,

the judge found six aggravators and no mitigators. The judge found: (1) the

defendant was previously convicted of another capital felony, § 921.141(5)(b),

Fla. Stat. (1981); (2) the capital felony was committed while the defendant was

engaged or was an accomplice in the commission of a kidnapping,

§ 921.141(5)(d), Fla. Stat. (1981); (3) the capital felony was committed for the

purpose of avoiding or preventing a lawful arrest or effecting an escape from

custody, § 921.141(5)(e), Fla. Stat. (1981); (4) the capital felony was committed

for pecuniary gain, § 921.141(5)(f), Fla. Stat. (1981); (5) the capital felony was

especially heinous, atrocious, or cruel, § 921.141(5)(h), Fla. Stat. (1981); and

(6) the capital felony was a homicide and was committed in a cold, calculated and

premeditated manner without any pretense of moral or legal justification,

§ 921.141(5)(i), Fla. Stat. (1981). The judge specifically rejected the statutory

substantial domination mitigator. § 921.141(6)(e), Fla. Stat. (1981). In rejecting

this mitigator, the judge wrote he was “not reasonably convinced that the

mitigating circumstance of domination exists and this opinion is rejected by the

Court as being not reliable and is not believed.” The judge further rejected the

statutory mitigator of the age of the defendant at the time of the crime,

§ 921.141(6)(g), Fla. Stat. (1981), finding Cooper was legally an adult and the


                                          28
testimony indicated he was mature and understood the distinction between right

and wrong and the nature and consequences of his actions. The judge also

specifically rejected the non-statutory mitigator of “[a]ny other aspect of the

defendant’s character.” The trial judge concluded Merin’s testimony did not offer

any mitigation, but merely buttressed the state’s contention that an aspect of

Cooper’s character was that he was really without remorse.

B. Direct Appeal

       Cooper appealed his convictions and sentences to the Florida Supreme

Court. Cooper v. State, 492 So. 2d 1059 (Fla. 1986) (Cooper I). The Court

affirmed the guilt phase of the trial.14 Id. at 1061-62. As to his sentence, Cooper’s

appeal focused on the aggravators and mitigators. Cooper first argued the trial

court erred in finding the aggravating circumstance that the capital felony was

committed in the course of a kidnapping. Id. at 1062. The Court agreed, holding

the evidence that Chris Fridella was confined in the bathroom so no harm would

come to him did not support a kidnapping. Id. Cooper further appealed the

imposition of the aggravating circumstances that the capital felony was committed

for the purpose of avoiding arrest, the murders were committed in a cold,

       14
          As to his convictions, Cooper challenged the admission at trial of the ski mask. The
Court rejected Cooper’s argument that he had a reasonable expectation of privacy in the bedroom
he had formerly occupied and found no error in admitting the ski mask into evidence. Cooper I,
492 So. 2d at 1061-62.

                                              29
calculated, and premeditated manner, and the murders were especially heinous,

atrocious, or cruel. However, the Florida Supreme Court rejected his arguments.

Id. Cooper also appealed the trial court’s failure to consider certain mitigators,

specifically that he was substantially impaired at the time of the crime and his age

at the time of the offense. The Florida Supreme Court also rejected these

arguments. Id. at 1062-63.

      Because the Court was left with five valid aggravating factors and no

mitigating factors, the Court concluded death was the appropriate penalty and

affirmed Cooper’s sentences. Id. at 1063.

C. Rule 3.850 Evidentiary Hearing and Order

      Cooper filed a Florida Rule of Criminal Procedure 3.850 motion, raising

several issues. The trial judge entered an order granting an evidentiary hearing on

several claims and summarily denied other claims. An evidentiary hearing was

granted on, inter alia, whether trial counsel were ineffective because they failed to

properly investigate and present various statutory and non-statutory mitigating

circumstances to the judge and jury. The evidentiary hearing was held over eight

days between September 3, 1999 and June 23, 2000.




                                         30
      1. Family background witnesses

      Evidence was presented at the evidentiary hearing regarding Cooper’s

background that was not before the jury at sentencing. Both Cooper’s brother and

sister, Donnie Cooper and Peggy Jo Kirby, testified regarding extensive abuse

during Cooper’s formative years. Donnie testified their father beat all the

children. If his father was not beating one child, another child was getting beaten

that day, and “it was an everyday thing.” Peggy Jo testified her father “never . . .

spanked you in a proper way. He’d start wailing on you with the belt and just lose

control. And he wouldn’t stop until you was falling down.”

      Their father began hitting Cooper when he was barely out of diapers, and

the beating continued as long as Cooper lived with his father. Donnie testified

Cooper was beaten, punched, and kicked by their father. Their father would put

Cooper against a wall with Cooper’s feet off the ground and slam Cooper into a

wall. The children had headaches from when their father would bounce their

heads off the walls or throw them against a door. “Dad had a tendency to pick us

up off our feet and slam us against the wall. Slam us against the trailer outside.

Throw rocks. Numerous things.”

      Their father never held back when he was being physically abusive. When

asked how their father would punch, Donnie stated “I’ve had it with the open


                                          31
hand. Had it with the fist. I’ve had it with articles in his hand.” Their father had a

finger on his right hand that was cut off, leaving a hard knot there. He would

“cuff” them “up side the head” with that hand. Their father beat them with boards,

switches, belts, and horse whips, leaving welts up and down their bodies and

bruises from being grabbed and hit so hard. On one occasion when the brothers

were acting up in their room, their father came in slashing a horse whip, hitting a

screaming child with every slash, including Cooper. Even during one of the last

occasions when Donnie saw his father when he was dying of cancer, their father

punched Donnie in the throat. Donnie explained “I don’t recall ever a time in my

whole family’s life that things were what you call calm.” Donnie also recalled

Cooper’s mother taking only her daughter to live somewhere else for a few months

in 1975, leaving Cooper behind.

        Their father was a heavy drinker and drank “[a]ll the time.” Donnie

associated their father’s drinking with the extreme violence, explaining “when dad

drank . . . he would go to further extremes to punish us than if he hadn’t been

drinking . . . he would use more excessive force.” He would beat them until the

children “were literally dancing off [their] feet” begging their dad to quit beating

them.




                                          32
      Their dad beat Donnie and Cooper harder than the other children. When the

beatings occurred, both Donnie and Cooper would run away from home to escape

the abuse. When they lived in Ohio, they would run to a nearby fairgrounds. In

Arizona, they would run into the desert or to the top of the mountain. Donnie

stated he had a closer bond with Cooper than he did with his other brothers

because they felt like they were always the ones to “create[] the upset in [the]

family.” Neither of them understood why their dad beat them to extremes. Both

Donnie and Cooper loved their father despite the beatings. The death of their

father in June of 1980 was devastating to Cooper.

      Donnie and Cooper would run from their father, and their father would

threaten to shoot them, stating “you keep running from me I’m going to shoot your

legs out from underneath you.” Their father had weapons in the house. He also

threatened to send Donnie and Cooper away. Their father had been to prison

before for manslaughter. Donnie believed their dad’s beatings affected him

throughout his life, and he even tried to commit suicide at one point. When

Donnie and Cooper would talk about the beatings, Cooper was always wanting to

kill himself because he thought he was the one causing the problems. Donnie

believed Cooper had actually attempted suicide a couple of times.




                                         33
         Despite Donnie’s and Cooper’s close bond, they also fought. Donnie, who

is five years older than Cooper, used to get Cooper down on the ground to pound

Cooper in his chest and punch him in the face. Donnie also admitted to burning

Cooper with a magnifying glass out in the sun. When Donnie would beat Cooper,

he would also exert that control to make Cooper do things that Donnie wanted him

to do.

         Donnie moved back to Ohio when he was 15, and Cooper later went to Ohio

to live with him after their father died. Cooper was working then, but also doing

drugs. Donnie knew Cooper did drugs, specifically smoking pot and taking acid,

downers, and hallucinates. Donnie had even caught Cooper huffing paint. When

Donnie caught Cooper huffing paint, he beat him and locked Cooper in a closet.

         Cooper’s older sister Peggy Jo Kirby also testified. She moved from the

family home in Arizona back to her mother’s in Ohio at 17 years of age because

she “got tired of being beat to death.” She testified their dad was very violent and

“used to bang our heads together.” He would also make them grab their ankles

and bend over, beating them with a belt or kicking them “in the butt with the point

of his cowboy boots.” He beat her so badly one time she had blood running down

her back. He also pulled out a bunch of her hair and hit her with his fist in her

face. Peggy Jo testified the beatings were on a daily basis and that she could

                                          34
“hardly remember a day going by where we didn’t get hit and beat for some reason

or sent to bed without dinner.” Sometimes when sent to bed without dinner, the

brothers would go out to the barn and eat dog food and drink horse’s milk from

their nursing mare.

        On one occasion when the children went to a neighbor’s house to escape

the abuse, their father told the neighbors they needed to bring the children home or

he was going to have the neighbors arrested. The children called the Sheriff

because they were scared their father was going to kill them. Phillip Cooper told

the Sheriff “if he felt like his kids needed their asses beat, then by God that’s what

he was going to do,” and told the Sheriff “to get the ‘F’ out of his house.” The

Sheriff left.

       Peggy Jo also saw their father pick Cooper up and throw him up against the

mobile home. Cooper “got thrown around a lot.” The children got their heads

banged together all the time. “[Banging heads together] was one of dad’s favorite

things or come and do you with that stub of his.” Their father was a violent man,

and his nickname was “Socky Cooper” because he used to be a golden glove

boxer. One time their father knocked Donnie’s and Peggy Jo’s heads together so

hard Peggy Jo thought he had cracked her skull because the inside of her head felt

hot and she lost her balance.


                                          35
      Their father kept them living “clear out in the desert or clear out in the

country,” and the children were not allowed to have many friends. When their

father would let them join clubs like 4-H or Girl Scouts he would not actually

allow them to attend the meetings and follow through on the commitment.

      Cooper was always a follower: “you tell him what to do . . . and he’ll do it.”

Donnie was a “control freak,” and he mostly “drug [Cooper] around and told

[Cooper], you do this or I’ll beat you up. And he would.”

      When asked whether there were ever periods of relative peace in her family,

Peggy Jo responded: “Peace in our family? No, sir. Never.” Sometimes some of

Cooper’s bruises were very severe and deep and would last for a couple of weeks

or more. Their father would beat them if they did not know something in school,

like their multiplication tables, and would beat Cooper if he got in trouble in

school. At some point, their principal stopped calling their father when Cooper

would get in trouble because Cooper would show up at school beaten up with

bruises all over him.

      Neither Donnie nor Peggy Jo was involved in Cooper’s trial in 1984. No

one invited them to testify or told them they could testify. Donnie stated he was

not contacted regarding background information about his brother until around




                                         36
1989. If someone had let him know of the need to testify during Cooper’s trial, he

would have been willing to testify.

      Cooper’s elementary school principal, Ralph Pomeroy, provided further

support for mitigation. Pomeroy was Cooper’s elementary school principal at

Queen Creek Elementary School in Queen Creek, Arizona. Pomeroy testified both

the school and town were very small and he knew the students in his school and

most of their families. Pomeroy knew Cooper’s father and knew of his father’s

reputation as a mean person. He knew “that you didn’t dare cross” Cooper’s

father. Pomeroy knew Cooper was abused because of conversations he had with

the Cooper boys and from a few opportunities to see some of the marks left. He

recalls a couple of incidents where there were red marks on Cooper’s neck and the

side of his face. He and the teachers talked as a group and decided it would not be

a good idea to report to his father any kind of problem Cooper had in school. He

and the teachers were afraid of further abuse. In his and the teachers’ minds there

was concern enough for someone to intervene, but at that time there was no real

resource one could go to unless it was a more severe problem than what they saw.

Under today’s laws and standards, Pomeroy would have to report the abuse to

authorities.




                                         37
      He talked with Cooper about the abuse a number of times. From his

conversations with Cooper, Pomeroy learned his father punished, hit, spanked,

whipped, punched, and beat Cooper. Pomeroy knew the abuse happened

regularly. Cooper would sometimes indicate he was having a bad day because of

an incident that happened the night before when his dad was drunk. At times

when Cooper would relate these incidents, Pomeroy could see red marks that

would verify that a beating had occurred.

      Pomeroy thought Cooper “was deprived of normal kinds of experiences that

kids have, that they need to have to be able to refer to as they begin to learn, to

grow.” Pomeroy believes that was a part of the reason that Cooper was slower at

learning.

      Pomeroy was not contacted to be a character witness at Cooper’s trial. If he

had been contacted, he “absolutely” would have testified.

      Cooper’s ex-girlfriend Lisa Harville never met Cooper’s father, but heard

from the Cooper children about the extent of his abuse. Harville had, however,

witnessed Donnie abusing Cooper “quite frequently.” According to Harville,

everything had to be under Donnie’s power or you would suffer the

consequence–being beaten. Cooper was always afraid of Donnie. When Cooper’s

dad passed away he thought the abuse would stop, but then Donnie stepped in and

                                          38
took the place of his father in beating Cooper. Harville characterized Donnie’s

beatings of Cooper as an everyday occurrence.

      Harville found Cooper one time after he had been huffing paint in an

abandoned car. Cooper was very disoriented and could hardly talk. She saw

Cooper huff paint on several occasions and saw him huff gasoline. She believed

drugs were Cooper’s escape from Donnie’s cruelty.

      Harville also testified Cooper called her the night of the murders. He was

rambling and crying, and told her someone got shot, asking her advice on what he

should do. She suggested he talk to his mother, and he said he could not do that.

He would talk about a different subject, and then come back to the shooting. “It

was like he was in and out of reality continuously.” Harville did not think Cooper

was telling the truth about shooting someone. She could tell he was high because

he told her he was, he did not make any sense, and his speech was slurred.

      She was not contacted about testifying at Cooper’s trial, but she would have

been “more than willing” to testify.

      2. Psychological Evaluation

      Dr. Brad Fisher evaluated Cooper for purposes of the 3.850 evidentiary

hearing. In his written report, he noted the frequent and extreme physical abuse

suffered by Cooper at the hands of his father and Donnie, and that “the constant

                                        39
beatings included frequent and notable head trauma.” He further concluded

Cooper suffered “[p]sychological abuse and an extreme deprivation of security

and love.” Dr. Fisher reported “[t]he father’s death of lung cancer in 1980 had a

traumatizing effect on the sixteen year old Richard heightened by his

abandonment by his mother, and a suicidal gesture followed shortly thereafter.”

Dr. Fisher further opined that Donnie “essentially abused Cooper and utilized him

almost in the manner of a master to a slave.” This dependence that characterized

Cooper’s early development translated into Cooper’s dependence on Walton,

“being that of total subservience and obedience to whatever he perceived Mr.

Walton wanted.”

      Dr. Fisher wrote that Cooper completed the seventh grade, but dropped out

a couple of weeks after beginning the eighth grade. He was also retained in the

second and sixth grades. School was frustrating for Cooper, and learning

disabilities and emotional problems were reported. Further, Cooper’s parents were

relatively indifferent to his dropping out of school after the seventh grade.

      Cooper began the use of alcohol and marijuana at the age of 11. “His drug

abuse escalated to include brain-damaging organic solvents and volatile inhalants,

psychoactive drugs, PCP, Quaaludes, whiskey, and LSD by his mid-teen years.”

He further opined that Cooper’s early drug and alcohol abuse may have been a


                                          40
response to the domination both by his father and Donnie. “In this sense the

development of drug abuse was, to some extent, a form of self medication to his

perceived worthlessness and overall stress in connection with this parental

domination and abuse, and similar features on the part of his stepbrother Donnie.”

      Dr. Fisher concluded Cooper had the following personality traits: (1) an

extraordinarily high level of dependency, together with profound limits in

capabilities for adult level cognition, reasoning and judgment; and (2)

neurological deficits due to head trauma and long term and chronic abuse of drugs

and alcohol. Further, test data revealed that Cooper is borderline mentally

retarded with a full scale IQ of approximately 75. Dr. Fisher reported “the

Wechsler Adult Intelligence Scale revealed significant subtest variation, consistent

with the diagnostic indications of organic damage.” Testing did not reveal Cooper

had any psychotic processes. However, Cooper had a history of depression and

suicidal gestures. After Cooper’s arrest, jail records indicated both suicide

attempts and the prescription of Mellaril in response to Cooper’s perceived mental

problems.

      3. Trial counsel testimony

      Cooper’s co-counsel Ky Koch and Ronnie Crider also testified during the

evidentiary hearing. Both had difficulty remembering specifics because the trial


                                         41
was in January of 1984, over 15 years prior to the evidentiary hearing held

between September 1999 and June 2000. Koch testified that at the time he

represented Cooper, he had been in private practice between three and five years,

and had worked at the State Attorney’s Office prior to his time in private practice.

As an Assistant State Attorney, he had been assigned capital cases, but none of

them had gone to trial as of the time he left. Koch believed this was the first

capital case he had as a private lawyer, although he was representing another

capital defendant at the same time. Crider had worked at the State Attorney’s

Office for almost three years and had recently entered private practice in February

of 1983, before Cooper’s trial in 1984.

         Koch recalled that it was difficult to have experts appointed and that a

couple of motions were filed on behalf of Cooper to get investigative fees. These

motions were denied. The investigation was conducted only by Koch and Crider.

Koch was not aware of mitigation experts if they existed at the time of Cooper’s

trial.

         Koch stated he and his co-counsel did not investigate the circumstances of

Cooper’s life except through Cooper and his mother, with the possible exception

of Cooper’s stepfather. Koch recalled making phone calls to someone in Texas

and someone in Arizona. Koch and Crider split up making telephone calls to


                                           42
locate potential witnesses. The phone calls he made were dead ends. Part of the

problem of finding potential witnesses was that Cooper had moved around a lot in

his young life.

      Koch explained to Cooper that they were having trouble locating people to

testify at the penalty phase. He suggested Cooper begin attending chapel at the

jail so that the chaplain could testify in the penalty phase. The chaplain was

unable to help Cooper, however, because Cooper was disruptive and profane while

attending chapel.

      Koch did not recall if they obtained Cooper’s school records or legal

records. Koch did not recall making any effort to obtain any of Cooper’s

background records. Koch believed he could have done more as far as

investigating Cooper’s background. Koch stated there was no trial strategy or

reason for not investigating Cooper’s background further.

      As to psychological mitigation evidence, Koch testified they decided not to

have Dr. Merin testify before the jury because the number of shots Cooper told Dr.

Merin he had fired conflicted with Cooper’s confession. Koch and Crider decided

Dr. Merin’s testimony would actually hurt Cooper before the jury.

      Ronnie Crider testified that mitigating evidence was investigated primarily

by interviewing Cooper and his mother. Crider had several meetings with Cooper

                                         43
where they discussed Cooper’s background. They tried to develop whatever

mitigation they could by interviewing them and getting names for people they

could contact. Crider recalls making some telephone calls to try to locate one or

two witnesses, but he was unable to locate anyone. Crider did not investigate the

circumstances of Cooper’s life except through speaking with him or his mother.

Given the benefit of hindsight, he would have liked to have done more. Crider

testified there was no strategic reason for going as far as they did and not going

further, just the difficulty of locating people.

      Crider did not recall whether they obtained hospital, school, or any other

kind of background records, but he did not believe they did. He also testified only

he and Koch investigated possible mitigation.

      Crider also recalled Cooper’s admission to Dr. Merin regarding the number

of shots fired “was so damaging, that would outweigh any possible benefit that we

would receive by putting him on the stand.” Crider put Dr. Merin on the stand in

front of the judge rather than the jury because he thought a judge could be more

detached, less emotional, and less susceptible to the emotional types of argument

than the jury. He thought the judge could consider the psychological factors that

Dr. Merin developed, but not consider factors relating to guilt or innocence,

because those had already been determined by the jury. They were impliedly or

                                           44
tacitly arguing residual doubt with the jury, but that would not be acceptable

before the sentencing judge.

      Crider testified they learned of Cooper’s abuse through the testimony of Dr.

Merin. The pre-trial deposition of Dr. Merin indicated the family life was “pretty

ugly.” Further, they made the decision not to call Dr. Merin prior to trial. As Dr.

Merin was their only vehicle for the abuse testimony, Crider conceded that they

essentially abandoned that issue by not putting Dr. Merin on the stand before the

jury. They did not expand their background mitigation investigation after they

decided not to call Dr. Merin before the jury.

      3. Trial Court Order

      Following the eight-day evidentiary hearing, the trial court rejected

Cooper’s claim of ineffective assistance of counsel at the penalty phase for failure

to properly investigate and present mitigating evidence to the judge and jury. The

trial court concluded the evidence adduced at the evidentiary hearing refuted

Cooper’s claim, and even assuming additional evidence should have been offered

in mitigation, the result would have been cumulative. Assuming without deciding

that trial counsel was deficient in failing to present the proffered mitigating

evidence, the court was not convinced Cooper would have received a life sentence

but for counsel’s errors.


                                          45
      The trial court concluded that trial co-counsel testified they thoroughly

investigated and interviewed witnesses, spoke on several occasions with Cooper

and his mother, and obtained names and leads and pursued the leads. The trial

court summarized the mitigation evidence presented at the evidentiary hearing as

revealing “that [Cooper] suffered physical abuse by his father, lived through an

impoverished childhood, had a history of substance abuse, and may have suffered

some mental illness. Much of this testimony, however, is cumulative–certainly the

testimony concerning the physical abuse and the impoverished childhood is

duplicative of Juanita Kokx’s [Cooper’s mother’s] testimony.”

      The trial court concluded that based on Cooper’s voluntary, detailed, and

specific confessions, the multiple substantial aggravating factors, and the

mitigating evidence presented at sentencing (young age, remorse, and willingness

to confess/cooperate), it could not be said “that the presentation of additional

nonstatutory mitigating evidence of [Cooper’s] childhood abuse, drug use,

impoverished means, or concerning possible mental illness would have

outweighed the numerous and serious aggravating factors found to be present in

this case.”




                                          46
D. 3.850 Appeal

      Cooper appealed the trial court’s denial of his claim of ineffective assistance

of counsel at the penalty phase for failure to investigate and present mitigating

evidence to the Florida Supreme Court. Cooper v. State, 856 So. 2d 969, 972 n.2

(Fla. 2003) (Cooper II). The Florida Supreme Court first set out the relevant

Supreme Court precedent established in Strickland, noting that Cooper must show

both deficient performance and prejudice. Id. at 975. The Court declined to grant

relief on this claim because “the preparation of Cooper’s attorneys for the penalty

phase and their decisions regarding what evidence to present at trial were entirely

strategically reasonable.” Id. The Court concluded:

      [T]he introduction of Cooper’s additional proffered evidence
      regarding his unfortunate and abused background does not constitute
      a “clear, substantial deficiency [which] so affected the fairness and
      reliability of the proceeding that confidence in the outcome is
      undermined.” First, a substantial part of the information regarding
      Cooper’s disadvantaged childhood was presented at Cooper’s trial.
      During Cooper’s penalty phase, Cooper’s mother testified that
      Cooper’s father was both violent and emotionally abusive to Cooper
      during his formative years. Thus, in large part, introduction of the
      evidence proffered below would have been repetitive. Also, the State
      persuasively established five significant aggravating factors at trial:
      (1) heinous, atrocious, or cruel; (2) cold, calculated, and
      premeditated; (3) murder committed to avoid arrest; (4) murder
      committed for pecuniary gain; and (5) commission of prior violent
      felonies. Although the introduction of the mitigating evidence
      identified by Cooper might have provided his penalty phase jury with
      a more extensive picture of his upbringing, Cooper has not shown
      that this evidence would have caused the jury to conclude that “the

                                         47
      balance of aggravating and mitigating circumstances did not warrant
      death.” Thus, Cooper’s claim of ineffective assistance of counsel
      fails.

Id. at 976 (citations omitted).

E. Federal habeas petition

      Cooper then filed a 28 U.S.C. § 2254 habeas petition in federal district

court. He asserted several issues, including ineffective assistance of counsel at the

penalty phase for failure to investigate and present mitigating evidence. The

district court analyzed this claim under Strickland and reviewed the evidence

presented at Cooper’s sentencing as well as the Rule 3.850 evidentiary hearing.15

      1. Deficient performance

      The district court concluded Cooper had established the deficient

performance prong of Strickland. Based on the Rule 3.850 evidentiary hearing,

the district court concluded additional mitigation evidence was available that was

not pursued and developed by Cooper’s attorneys, and their failure to do so was

not strategic or reasonable. The district court found the Florida Supreme Court’s

determination that trial counsels’ penalty phase preparation and decisions were

“entirely strategically reasonable,” see Cooper II, 856 So. 2d at 975, was an

unreasonable application of Strickland. Moreover, the district court concluded


      15
           The district court did not conduct an additional evidentiary hearing.

                                                 48
“that determination was premised on clearly erroneous factual findings that (1) a

‘substantial part’ of the evidence was presented, and (2) that it would have been in

large part ‘repetitive’ of the mother’s testimony.”

      The district court found trial counsels’ testimony at the evidentiary hearing

actually reflected they had no strategic reason for failing to investigate further, and

they probably could have done more investigation. Although the attorneys limited

their investigation, they certainly knew from Dr. Merin’s evaluation that Cooper

had a history of “horrendous” parental abuse, family turmoil, and mental health

issues. The district court concluded that information would have led a reasonable

attorney to investigate further. Thus, the district court found trial counsels’

penalty phase investigation and preparation was not “entirely strategically

reasonable,” as found by the Florida Supreme Court. Counsels’ failure to expand

their investigation “resulted from inattention, not reasoned strategic judgment.”

See Wiggins v. Smith, 539 U.S. 510, 526, 123 S. Ct. 2527, 2537 (2003). Thus, the

district court concluded Cooper had satisfied Strickland’s deficient performance

prong.

      2. Prejudice

      As to Strickland’s prejudice prong, the district court concluded Cooper had

demonstrated, by clear and convincing evidence, the Florida Supreme Court


                                          49
unreasonably determined the facts in finding that the mitigation evidence

presented at the evidentiary hearing was largely cumulative to that presented at

sentencing. See Cooper II, 856 So. 2d at 976. First, Kokx’s testimony described

the abuse that she suffered at the hands of Cooper’s father, that Cooper witnessed

this abuse, and that Cooper had low self-esteem. With respect to any abuse of

Cooper himself, Kokx testified only that Cooper’s father “was very hard on the

children and when he did discipline he used a belt [that] left marks on the

children,” he was “very much” authoritarian with the children, and he used

profanity toward the children. Second, Kokx did not testify at all as to Donnie’s

abuse of Cooper. Finally, Kokx did not and could not testify to much of the abuse,

as she separated from Cooper’s father multiple times during Cooper’s younger

years and could not have witnessed any abuse that occurred in her absence.

Cooper’s siblings testified Cooper’s father did not abuse them as badly when the

mother was present.

      Thus, the Florida Supreme Court’s finding that “Cooper’s mother testified

that Cooper’s father was both violent and emotionally abusive to Cooper during

his formative years,” see Cooper II, 856 So. 2d at 976, was an inaccurate

characterization of Kokx’s testimony. Because of the unreasonable factual




                                         50
finding, it followed that the state court decision on this claim was not entitled to

deference. Thus, the district court reviewed Cooper’s prejudice claim de novo.

      The district court concluded the evidence at the postconviction evidentiary

hearing established some statutory and nonstatutory mitigating factors. The

district court found Cooper’s young age, considered with the evidence of his

difficult background, was a mitigating circumstance. Additionally, the district

court found an inference could reasonably be drawn that Cooper was susceptible

to being influenced by older dominant males. The district court also concluded

evidence of Cooper’s difficult childhood, including the constant beatings and

abuse inflicted on him by his father and brother, certainly would have been

relevant to the jury’s assessment of his moral culpability.

      In turn, the district court concluded each of the five aggravating factors

found by the state sentencing court was “convincingly supported by the evidence.

This was nothing short of a horrific crime, and the evidence of [Cooper’s] guilt

and the cold, calculated and premeditated nature of the murders was

overwhelming.”

      Reweighing the aggravating and mitigating factors, the district court

concluded:

      Considering the overwhelming evidence of [Cooper’s] guilt and the
      horrendous facts of the triple murders, there is not a reasonable

                                          51
      probability that the result would have been different if the mitigation
      evidence counsel failed to develop and present had been presented.
      Counsels’ failure to present the additional evidence of [Cooper’s]
      difficult and abusive childhood did not, therefore, prejudice [Cooper].
      Simply put, confidence in the outcome of [Cooper’s] penalty phase is
      not undermined.

                                 III. DISCUSSION

A.    Ineffective assistance of counsel at penalty phase for failure to investigate
      and present mitigating evidence

      Cooper contends his trial counsel’s performance at the penalty phase was

constitutionally ineffective under the standards set forth in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), because his counsel failed to

adequately investigate and present mitigating evidence regarding his background.

Cooper asserts had his counsel presented the mitigating evidence, there is a

reasonable probability he would not have been sentenced to death.

      We review Cooper’s ineffective assistance of counsel claim under the

“highly deferential standard” of review provided by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) because his federal habeas petition

was filed after April 24, 1996. McNair v. Campbell, 416 F.3d 1291, 1297 (11th

Cir. 2005). Under this standard, a federal court may not grant habeas relief with

respect to any claim adjudicated on the merits in state court unless the state court’s

adjudication “(1) resulted in a decision that was contrary to, or involved an


                                          52
unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d); Harrington v. Richter, __ U.S. __,

131 S. Ct. 770, 785 (2011).

      The Supreme Court established the legal principles governing ineffective

assistance of counsel claims in Strickland. Wiggins v. Smith, 539 U.S. 510, 521,

123 S. Ct. 2527, 2535 (2003). “An ineffective assistance claim has two

components: A petitioner must show that counsel’s performance was deficient,

and that the deficiency prejudiced the defense.” Id. (citing Strickland, 466 U.S. at

687, 104 S. Ct. at 2064).

      Before beginning our analysis of this issue, a brief review of the procedural

status of this case is helpful. After his postconviction evidentiary hearing, the

state trial court assumed, without deciding, that Cooper’s counsel’s performance

was deficient, but concluded that Cooper could not establish prejudice. On appeal,

the Florida Supreme Court concluded that Cooper could establish neither deficient

performance nor prejudice. On his 28 U.S.C. § 2254 motion, the district court

concluded Cooper established deficient performance, but could not establish




                                          53
prejudice resulted from that deficient performance. We begin our analysis of this

issue by discussing Strickland’s deficient performance prong.

      1.      Deficient performance

      Cooper asserts the district court correctly found his counsel’s performance

was deficient during the penalty phase. In its brief, the State does not offer

argument regarding Strickland’s deficient performance component and instead

focuses its argument only on the prejudice component. As the State has not

briefed the deficient performance prong on appeal, the State has abandoned that

claim. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th

Cir. 1989).

       Even assuming the State has not abandoned any argument on Strickland’s

deficient performance prong by failing to brief it on appeal, we conclude Cooper

has established his attorneys’ performance was deficient. With regard to

performance, the Florida Supreme Court concluded, “the preparation of Cooper’s

attorneys for the penalty phase and their decisions regarding what evidence to

present at trial were entirely strategically reasonable.” Cooper II, 856 So. 2d at

975. Even affording that decision AEDPA-deference, we conclude it is contrary

to, or an unreasonable application of, clearly established federal law as set out in

Strickland. Under the prevailing standards in 1984, the year of Cooper’s trial,


                                          54
Cooper’s attorneys did not conduct an adequate background investigation and

unreasonably decided to end the background investigation after only talking to

Cooper, Cooper’s mother and Dr. Merin. See Williams v. Taylor, 529 U.S. 362,

395-98, 120 S. Ct. 1495, 1514-15 (2000) (basing an obligation to conduct a

thorough background investigation on standards set forth in 1980); see also

Wiggins, 539 U.S. at 522, 123 S. Ct. at 2535-36 (stating Williams v. Taylor was

squarely governed by Strickland and did not create new law); accord Johnson v.

Sec’y, DOC, __ F.3d __, 2011 WL 2419885, at *25 (11th Cir. 2011) (failing to

conduct a reasonable background investigation and resulting failure to present

mitigating evidence was deficient under AEDPA); Williams v. Allen, 542 F.3d

1326, 1342 (11th Cir. 2008) (same).

      The question under Strickland is whether Cooper’s trial counsel “conducted

an adequate background investigation or reasonably decided to end the

background investigation when [they] did.” See Johnson, 2011 WL 2419885, at

*22. Cooper’s attorneys did neither. Cooper’s attorneys testified their strategy

was to “paint a picture of a young man who I believe acted on impulse, acted in

the spur of the moment, acted in bad judgment, acted at the direction and really

under the domination of another individual, that being Mr. Walton.” However,




                                        55
they did little to follow through with this strategy beyond talking to Dr. Merin,

Cooper, and Cooper’s mother.

      Further, Koch and Crider knew that Cooper was abused by his father

through the deposition testimony of Dr. Merin. Once they decided not to call Dr.

Merin, who “was our only vehicle” for testimony concerning Cooper’s

background “with the exception of Cooper’s mother,” to testify before the jury,

they did nothing further to develop background information to support their

mitigation theory. We agree with the district court that Cooper’s mitigation

argument would have had much more credibility if Cooper’s brother or sister, at a

minimum, had been called to support Cooper’s arguments. Instead, the jury heard

nothing about the abuse inflicted on Cooper by his father and brother, hearing only

of the abuse Cooper’s father inflicted on Cooper’s mother. Dr. Merin actually

testified that Cooper’s father was “exceptionally abusive, both physically and

verbally,” before the judge, but there was no testimony as to the specifics of the

abuse directed toward Cooper.

      Donnie Cooper, Peggy Jo Kirby, Ralph Pomeroy, and Lisa Harville testified

they were never contacted about testifying on Cooper’s behalf, and that they

would have testified had they been asked. Further, although counsel did not recall

whether they had obtained Cooper’s background records, Crider did not believe


                                         56
they did. Notably absent from the attorneys’ testimony was any explanation as to

why they did not contact Cooper’s siblings, whether they attempted to contact

them at all, or if they were contacted, what the results were. Other than the

difficulties they experienced in reaching potential unnamed witnesses, the

attorneys offered no explanation for not broadening their mitigation investigation.

Had counsel talked to Cooper’s siblings, or as far as we can tell any family

member other than Cooper’s mother, counsel would have learned the extent of

Cooper’s traumatic background. See Johnson, 2011 WL 2419885, at *23; see also

Williams v. Allen, 542 F.3d at 1340 (“By choosing to rely entirely on [the

mother’s] account, trial counsel obtained an incomplete and misleading

understanding of [the defendant’s] life history.”).

      We conclude the State has abandoned any argument that trial counsel’s

performance was not deficient. Even assuming the State did not abandon the

argument, however, “fairminded jurists could not disagree about whether the state

court’s denial of this claim was inconsistent with earlier Supreme Court

decisions.” See Johnson, 2011 WL 2419885, at *26. Thus, we now turn to

Strickland’s second prong, prejudice.




                                         57
        2.        Prejudice

        As an initial matter, we must determine the correct standard of review under

which to review Cooper’s claim of prejudice from his counsel’s deficient

performance.16 “Federal habeas courts generally defer to the factual findings of

state courts, presuming the facts to be correct unless they are rebutted by clear and

convincing evidence.” Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008)

(en banc). “[W]hen a state court’s adjudication of a habeas claim results in a

decision that is based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding, this Court is not bound to defer

to unreasonably-found facts or to the legal conclusions that flow from them.” Id.

(quotations, citations, and alterations omitted). When a state court unreasonably

determines the facts relevant to a claim, “we do not owe the state court’s findings

deference under AEDPA,” and we “apply the pre-AEDPA de novo standard of

review” to the habeas claim. Id.

        After a thorough review of the evidence presented at Cooper’s sentencing

and the evidence presented at the postconviction evidentiary hearing, we agree

with the district court that the Florida Supreme Court’s finding that the mitigation



        16
             In its brief, the State does not argue the district court erred in reviewing this claim de
novo.

                                                    58
evidence presented at the evidentiary hearing was cumulative to that presented at

sentencing was an unreasonable determination of the facts. Specifically, as

support for its holding that Cooper was not prejudiced by counsel’s performance,

the Florida Supreme Court found that “a substantial part of the information

regarding Cooper’s disadvantaged childhood was presented at Cooper’s trial.

During Cooper’s penalty phase, Cooper’s mother testified that Cooper’s father was

both violent and emotionally abusive to Cooper during his formative years.”

Cooper II, 856 So. 2d at 976. However, this was not Kokx’s testimony. Kokx

testified as to the abuse Cooper’s father inflicted on her and that Cooper

witnessed. According to Kokx, the extent of the abuse inflicted on Cooper was

the emotional abuse of his father not being involved in his life and getting

whipped by a belt, sometimes leaving marks. Kokx’s testimony did not begin to

describe the horrible abuse testified to by Cooper’s brother and sister. Further,

Kokx did not testify to any of the abuse suffered by Cooper at the hands of his

brother, Donnie. Kokx was also away for periods of Cooper’s life when she and

Cooper’s father were separated and could have missed much of the abuse Cooper

suffered. Although Kokx’s testimony revealed that Cooper’s home life was

volatile, to characterize her testimony as revealing a “substantial part” of Cooper’s

“disadvantaged childhood” is a great exaggeration. Thus, the state court’s


                                         59
decision on prejudice was “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,” see 28 U.S.C.

§ 2254(d)(2), and we will review Cooper’s claim de novo.17 See Jones, 540 F.3d

at 1288 n.5.

       To establish prejudice under Strickland, a petitioner “must show that there

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

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. In a case challenging a death sentence, “the

question is whether there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2069. Strickland

asks if a different result is “reasonably probable,” not whether a different result is

“possible.” See Ferguson v. Sec’y for Dep’t of Corr., 580 F.3d 1183, 1198-99

(11th Cir. 2009). In determining whether there is a reasonable probability that the


       17
           In Wood v. Allen, __ U.S. __, 130 S. Ct. 841, 848-49 (2010), the Supreme Court
declined to decide whether to satisfy § 2254(d)(2), a petitioner must establish only that the state-
court factual determination on which the decision was based was “unreasonable,” or whether
§ 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was
correct with clear and convincing evidence. Under either standard, based on the testimony at the
evidentiary hearing, the Florida Supreme Court’s determination that the evidence was repetitive
of Kokx’s testimony was unreasonable. Cooper has rebutted this factual finding by clear and
convincing evidence.

                                                 60
“additional mitigating evidence would have changed the weighing process so that

death is not warranted,” we consider the totality of the evidence by weighing the

evidence that was presented, and that which was not presented, “against the

aggravating circumstances that were found.” Hardwick v. Crosby, 320 F.3d 1127,

1166 (11th Cir. 2003).

      In the penalty phase of a trial, “[t]he major requirement . . . is that the

sentence be individualized by focusing on the particularized characteristics of the

individual.” Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987).

Therefore, “[i]t is unreasonable to discount to irrelevance the evidence of [a

defendant’s] abusive childhood.” Porter v. McCollum, __ U.S. __, 130 S. Ct. 447,

455 (2009). Background and character evidence “is relevant because of the belief,

long held by this society, that defendants who commit criminal acts that are

attributable to a disadvantaged background . . . may be less culpable than

defendants who have no such excuse.” Johnson, 2011 WL 2419885, at *27

(collecting cases).

      This case is strikingly similar to this Court’s recent decision in Johnson.

Like the defendant in Johnson, “[t]he description, details, and depth of abuse in

[Cooper’s] background that were brought to light in the evidentiary hearing in the

state collateral proceeding far exceeded what the jury was told.” Id. There was a


                                          61
wealth of mitigating evidence that was not presented to Cooper’s jury. Cooper

asserts this evidence entitles him to both statutory and non-statutory mitigation.18

       As to statutory mitigation, the unpresented mitigating evidence would

support a finding that Cooper is entitled to the mitigator of age of the defendant at

the time of the crime, § 921.141(6)(g), Fla. Stat., despite the sentencing judge’s

explicit rejection of this mitigator. The sentencing judge did not have the full

story of Cooper’s abusive background. When Cooper committed the crimes at age

18, he was barely removed from being violently abused by his father and brother

throughout his childhood. The evidence presented at the evidentiary hearing

would support a finding of the statutory mitigator of age at the time of the crime.

       The unpresented mitigating evidence would also support a finding that

Cooper is entitled to the statutory mitigator of substantial domination,

§ 921.141(6)(e), Fla. Stat. Although Dr. Merin testified as to Cooper’s capacity to

be dominated by older males, the sentencing judge explicitly rejected this

mitigating factor because he did not have an independent evidentiary basis for Dr.


       18
          Cooper asserts he is entitled to the statutory mitigator of substantial impairment,
§ 921.141(6)(f), Fla. Stat. The district court concluded Cooper was not entitled to this mitigator
because, although there was evidence Cooper was intoxicated at the time of the crime, Cooper’s
detailed confessions to the detectives undermined any serious contention he was substantially
impaired at the time of the murders. Further, he admitted in his second confession to detectives
that although he had been smoking marijuana and drinking on the day of the murders, he was
fully aware of what he was doing and not intoxicated. We agree with the district court and do
not credit this as a mitigator.

                                                62
Merin’s opinion, other than Cooper’s own self-report.19 The testimony of

Cooper’s brother, sister, and Lisa Harville would have provided support for Dr.

Merin’s opinion. The evidence presented at the evidentiary hearing would

support a finding that Cooper was susceptible to being dominated by older,

dominant males as he had spent his formative years being a follower of his abusive

father and brother. As Peggy Jo Kirby testified, “you tell [Cooper] what to do . . .

and he’ll do it.”

       The evidence presented at the evidentiary hearing would also support

multiple categories of nonstatutory mitigation based on Cooper’s childhood and

family background. The evidence presented at the evidentiary hearing strongly

supports a mitigator that Cooper’s father and older brother severely abused him

throughout his childhood and teenage years. The evidence also supports a

mitigator that Cooper began using drugs and alcohol at age 11 to escape his family

and the abuse.20 This drug use included the use of inhalants, which, according to

       19
            Additionally, although the trial judge heard Dr. Merin’s testimony mentioning that
Cooper was abused, the trial judge discounted Dr. Merin’s testimony because it was only through
the self-report of Cooper. Thus, although the trial judge, unlike the jury, heard some testimony
that Cooper himself was physically abused, he had no support for this testimony and did not
consider it as mitigation.
       20
          We acknowledge that evidence of alcoholism and drug abuse is often “a two-edged
sword which can harm a capital defendant as easily as it can help him at sentencing.” Tompkins
v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999). However, we credit Cooper’s evidence of
alcohol abuse beginning at age 11 as mitigation, as it was used as a way to escape his horrible
background.

                                               63
the psychological expert at the postconviction evidentiary hearing, could have

contributed to neurological deficits. Cooper was abandoned by his mother for

stretches of time. Further, Cooper had only a seventh-grade education and had

learning deficits. Although Cooper’s IQ was not made an issue at the penalty

phase of his trial, Cooper’s IQ was tested by the postconviction expert, Dr. Fisher.

This “test data revealed that he functions at a borderline level of intelligence (full

scale IQ approximately 75) . . . [which] places him approximately 6 points above

the mentally retarded range.” Further, although testing did not reveal that Cooper

had any psychotic processes, Cooper had a history of depression and suicidal

gestures. We also credit the mitigating evidence presented at sentencing,

specifically that Cooper was willing to confess to the crime.

      During the penalty phase, the jury heard very little that would humanize

Cooper, see Porter, 130 S. Ct. at 454, and the mitigation evidence presented in

postconviction proceedings “paints a vastly different picture of his background”

than the picture painted at trial, see Williams v. Allen, 542 F.3d at 1342. While the

jury heard a small sliver of his volatile upbringing, the jury heard nothing of

Cooper’s life of horrific abuse rendered by both his father and brother, his use of

drugs and alcohol beginning at age 11 to escape his family and the abuse, his

abandonment by his mother for short stretches of time, his seventh-grade


                                          64
education and learning deficits, and his depression. Further, all of the

nonstatutory mitigating evidence strengthens the two categories of statutory

mitigation supported by the evidence: age and substantial domination. Cooper

was barely removed from this horrific abuse when he committed the crimes at age

18. Likewise, he was barely removed from the domination by his father and

brother when he was dominated by Walton.

      Further, “the lack of mitigation witnesses was brought to the jury’s attention

during the sentencing phase,” which might have suggested to the jury “that the

defense attorneys could discover nothing positive or mitigating in [Cooper’s]

background.” See Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991).

During the closing argument of the penalty phase, the prosecutor emphasized the

dearth of evidence presented in mitigation, stating: “Of all the people that may

[have] been associated with this man, because he is a man, he is an adult and he

was an adult at the time of the crime, of his brothers and sisters, of the people he

has met in the three states he has lived in over the last five to ten years one person

came.” Additionally, the prosecutor pointed out that none of the family

background evidence showed that Cooper himself had been abused, arguing, “you

heard that his mother was married to a violent man and that he abused her. What

has that got to do with the defendant?”


                                          65
      The evidence about Cooper’s childhood and family that the jury did not hear

is similar to that which the jury did not hear in Williams v. Taylor, 529 U.S. at

395-96, 120 S. Ct. at 1514-15 (holding defendant was prejudiced by counsel’s

failure to present evidence of his “nightmarish childhood”–which led to the

imprisonment of his parents for neglect, his borderline mental retardation, or his

failure to advance in school past the sixth grade). Unlike the defendant in

Williams v. Taylor, however, Cooper murdered three victims. Although the

number of victims in this case distinguishes this case from Williams v. Taylor, the

number of victims does not preclude this Court from concluding prejudice has

been established. The Supreme Court has found prejudice was established in a

two-victim murder case in Porter, 130 S. Ct. at 448, 455-56, and we recently

found prejudice was established in a two-victim murder in Johnson, 2011 WL

2419885, at *2, *29. Further, Cooper’s murders were committed when he was 18

years old, under the substantial domination of Walton, and along with three other

co-defendants. The statutory mitigating circumstances of age and substantial

domination distinguish this case even though it involves multiple victims.

      Given that some jurors nonetheless “were inclined to mercy even with[]

having been presented with [so little] mitigating evidence and that a great deal of

mitigating evidence was available to [Cooper’s] attorneys had they more


                                          66
thoroughly investigated,” it is possible that, if additional mitigating evidence had

been presented, more jurors would have voted for life. See Blanco, 943 F.2d at

1505. Additionally, like in Johnson, AEDPA deference does not apply to the

Florida Supreme Court’s prejudice determination, making a prejudice finding even

more justified. 2011 WL 2419885, at *29.

      Thus, we conclude there is a reasonable probability that absent the errors,

the sentencer would have concluded the balance of aggravating and mitigating

factors did not warrant death. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

The district court erred in denying habeas relief on Cooper’s ineffective assistance

of counsel claim.

B.    Whether Cooper is entitled to an evidentiary hearing on his competency to
      stand trial

      Cooper asserts a straightforward application of our decision in James v.

Singletary, 957 F.2d 1562 (11th Cir. 1992), shows a federal hearing on Cooper’s

claim that he was incompetent to stand trial is warranted. “[A] petitioner is

entitled to an evidentiary hearing on a substantive incompetency claim if he or she

presents clear and convincing evidence to create a real, substantial, and legitimate

doubt as to his or her competency.” James, 947 F.2d at 1573 (quotations omitted).

      This argument is without merit. The record is devoid of evidence that

Cooper was incompetent to stand trial. Cooper rests on Dr. Fisher’s Rule 3.850

                                         67
psychological report, where Fisher stated that at the time of trial Cooper was “not

functioning rationally,” and his “ability to do [anything] other than accept his

attorneys’ dictates or representations was . . . absent.” Dr. Fisher did not interview

Cooper until years after he was tried, and Dr. Merin, the psychological expert at

trial, evaluated Cooper for competency before trial. Dr. Merin made no finding as

to Cooper’s incompetency to stand trial. Cooper presents no evidence

demonstrating any inadequacy in Dr. Merin’s evaluation or his conclusions, and

has not presented clear and convincing evidence to create a real, substantial, and

legitimate doubt as to his competency. Cooper is not entitled to an evidentiary

hearing on this claim.

                                      IV. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s denial of

habeas relief on Cooper’s claim of ineffective assistance of counsel at the penalty

phase for failure to investigate and present mitigating evidence, and REMAND to

the district court.21 We AFFIRM the district court’s denial of an evidentiary

hearing on Cooper’s competency claim.


       21
           Because Cooper is entitled to relief from the death sentence on this claim, we do not
decide whether trial counsel was ineffective in his investigation and cross-examination of state
witness Paul Skalnik during the penalty phase, or whether direct appeal counsel rendered
ineffective assistance by filing a brief that failed to raise a Caldwell v. Mississippi, 472 U.S. 320,
105 S. Ct. 2633 (1985), violation during Cooper’s penalty phase.

                                                  68
