Anthony John Ponticelli v. Secretary, Florida Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 16, 2012
• Docket: 11-11966
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-11966 ________________________

D.C. Docket No. 5:07-cv-00444-WTH-DAB

ANTHONY JOHN PONTICELLI,

Petitioner - Appellant, versus

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

Respondents - Appellees

_________________________

Appeal from the United States District Court for the Middle District of Florida ________________________ (August 16, 2012)

Before PRYOR, MARTIN and EDMONDSON, Circuit Judges.

PRYOR, Circuit Judge:

Anthony Ponticelli, a Florida prisoner sentenced to death for the murder of

two brothers, Nick and Ralph Grandinetti, raises two issues about the denial of his

petition for a writ of habeas corpus. First, Ponticelli argues that the prosecution Case: 11-11966 Date Filed: 08/16/2012 Page: 2 of 90

violated his right to due process when it allegedly suppressed evidence of and

failed to correct false testimony about an agreement to provide immunity for a

witness for the state and about Ponticelli’s use of cocaine shortly before the

murders. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); see Giglio

v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). Ponticelli contends that the

ruling of the Supreme Court of Florida—that the prosecution did not violate his

due process rights and that, even if it did, he suffered no prejudice—is contrary to

or an unreasonable application of clearly established federal law and an

unreasonable determination of the facts. 28 U.S.C. §2254(d). Second, Ponticelli

argues that his trial counsel provided ineffective assistance by failing to present

evidence of Ponticelli’s incompetence to stand trial and by failing to present

mitigating evidence of drug use and mental health problems during the penalty

phase. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

Ponticelli contends that the ruling of the Supreme Court of Florida—that trial

counsel did not render deficient performance before and during the competency

hearing, and that any deficiencies by counsel during the penalty phase did not

prejudice Ponticelli—is contrary to or an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d). Ponticelli’s arguments fail. The

Supreme Court of Florida on the first issue, reasonably determined the underlying

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facts and, on both issues, neither contravened nor unreasonably applied clearly

established federal law. The denial of Ponticelli’s petition for a writ of habeas

corpus is affirmed.

I. BACKGROUND

Anthony Ponticelli owed Nick and Ralph Grandinetti money for cocaine so

he hatched a plan to lure the brothers into a car to drive to a back road, away from

their home, where he murdered them with a gun he had borrowed from a friend.

Ponticelli shot Ralph once in the head and Nick twice in the head and later

abandoned them to die in the car. Ralph died from the gunshot wound within one

or two minutes of being shot. Nick was found a day later, curled up on the

floorboard in the front of the car, covered in blood, gasping for air, and kicking his

foot. Nick felt pain until he became comatose, and later died from cardiac arrest

secondary to the gunshot wounds. In addition to his gunshot wounds, Nick

suffered bruises to the back and side of his head, which were consistent with blunt

force trauma, and a burn of his right ear.

The discussion of the procedural history of this appeal is divided into

several parts. Part A discusses the pretrial determination of competency. Part B

discusses the guilt phase of Ponticelli’s trial. Part C discusses the penalty phase of

Ponticelli’s trial. Part D discusses the decision of the Supreme Court of Florida on

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direct appeal. Parts E and F discuss the state postconviction proceedings. Part G

discusses the proceedings in the district court.

A. Pretrial Determination of Competency

After Ponticelli was charged with two counts of first degree murder and one

count of robbery with a deadly weapon, Ponticelli’s counsel moved for an

evaluation of his client’s competency. The trial court then appointed three mental

health experts to evaluate Ponticelli’s competency to stand trial: Dr. Harry Krop,

Dr. Rodney Poetter, and Dr. Robin Mills. At a pretrial hearing, both Dr. Krop and

Dr. Poetter testified that Ponticelli was competent, but Dr. Mills testified that

Ponticelli was incompetent because he suffered from a delusional thought process.

The state trial court found Ponticelli to be competent. Ponticelli v. State

(Ponticelli I), 593 So. 2d 483, 487 (Fla. 1991).

B. Guilt Phase

The prosecution built its case on both physical evidence and the testimony

of several witnesses who testified that Ponticelli planned to kill the brothers,

carried out that plan, and then bragged about it. At the conclusion of the guilt

phase, the jury convicted Ponticelli, so in our review of the evidence from the guilt

phase, we are obliged to construe the record in the light most favorable to the

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government. See Lewis v. Jeffers, 497 U.S. 764, 781–82, 110 S. Ct. 3092,

3102–03 (1990).

On November 27, 1987, the Friday after Thanksgiving Day, Ponticelli drove

to the Grandinetti brothers’ trailer in Silver Springs Shores, Florida, with a .22

caliber handgun that he had borrowed from his friend, Joseph Leonard. Ponticelli

had bought large amounts of cocaine from the brothers on at least 15 occasions,

and he owed the brothers between $200 and $300 for some of those drugs.

Ponticelli planned to kill the brothers and rob them of cocaine and money.

Ponticelli considered killing the brothers in their trailer, but decided against it,

because too many other people were present, including the brothers’ roommate,

Timothy Keesee.

Ponticelli decided to lure the brothers away from their trailer by pretending

to sell cocaine for them. Ponticelli asked the brothers if he could settle his debt by

selling whatever cocaine they had. The brothers agreed and Ponticelli made fake

telephone calls to make the brothers believe that he was finding purchasers for

their cocaine. At trial, Keesee testified that he had seen cocaine at the trailer on

the night of the murders, but denied that anyone present at the trailer—including

Ponticelli—had used cocaine that night.

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Ponticelli directed the brothers to the purported customers’ residences,

including the house of Keith Dotson. Ponticelli had visited Dotson earlier that day

and had watched part of the movie “Scarface” with Dotson; Dotson’s cousins, Ed

and Warren Brown; and their friend, Brian Burgess. When Ponticelli and the

brothers arrived at Dotson’s home, Ponticelli left the brothers in the car.

Inside Dotson’s house, Ponticelli showed Ed Brown and Burgess a gun and

told them that there were two people in the car who he planned to kill for cocaine

and money. Ponticelli asked Brown and Burgess if they would be willing to give

him a ride home after he murdered the Grandinetti brothers. At trial, Ed Brown,

Burgess, and Dotson testified that they had not met Ponticelli before that day.

After he returned to the car, Ponticelli directed the brothers to drive to

nearby back roads. From the back of the car, Ponticelli then shot Ralph once and

Nick twice in the head with Leonard’s gun. Ponticelli threw Ralph into the back

of the car. When Nick moaned, Ponticelli repeatedly hammered Nick’s head with

the butt of the gun because he had no more bullets. Ponticelli then pushed Nick

onto the floorboard of the car. Heat from the floorboard seared Nick’s ear.

Ponticelli drove to Leonard’s house to return the gun and to seek his advice.

Ponticelli approached a window and called Leonard outside. He gave Leonard the

gun back and told Leonard that he “did Nick.” Leonard understood Ponticelli to

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mean that he had murdered Nick. Ponticelli returned to the car and began driving,

but eventually abandoned the bodies and the car because of a flat tire. He called a

taxi cab and returned to Dotson’s house around 11:00 or 11:30 p.m.

With his right knee covered in blood, Ponticelli entered Dotson’s house

“looking for an alibi.” Ponticelli announced to Ed Brown, Dotson, and Burgess, “I

did it, dudes,” and asked the men to “give him an alibi . . . that he had stayed there

. . . all night.” He explained that he “had killed two guys for $2,000 and some

cocaine.” Ponticelli stated that he had shot each man in the back of the head and

afterward “drove them out somewhere and left them” because he had a flat tire.

Ponticelli showed the Brown brothers and Burgess some cocaine in small plastic

packets and a large roll of money. At trial, Ed Brown denied that anyone used

cocaine with Ponticelli after he returned to Dotson’s house. Ponticelli asked Ed

Brown if he were “to shoot someone . . . in the head with a gun” did he “think that

they would live?” Ponticelli told Ed Brown, Dotson, and Burgess that he was

worried because “one of the guys w[as] moaning or both of them.”

Ponticelli then called his mother and told her that he was working out with

some friends, but would be home in about 30 minutes. Dotson helped Ponticelli

wash his clothes to remove the blood stains and Ponticelli folded the clean clothes

and placed them in a brown bag. Afterward, Warren Brown and Burgess drove

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Ponticelli back to his house. Ponticelli instructed Brown and Burgess to “drive

around the block a couple of times” because he “was afraid the police might spot

him out . . . and catch him.”

The day after the murder, Ponticelli and his friend, John Turner, asked

Turner’s friend, Ronald Halsey, if they could burn trash behind Halsey’s house.

Halsey agreed. Halsey later inspected their progress and “noticed that there was a

black looking coat on top of the fire.” When Halsey inquired about the clothes,

Ponticelli “broke down and told [Halsey] . . . that . . . he shot the two boys, Nick

and Ralph.” Ponticelli told Halsey that he owed Nick money for cocaine and that

Nick and Ralph had “roughed him up.” Ponticelli stated that “they were driving

somewhere” to “sell more coke” and, when they “came to a stop,” he took out a

gun and “shot the driver twice in the back of the head and then he shot the

passenger twice in the back of the head.” Ponticelli told Halsey that “he knew

after he shot one of them that he had to kill both of them because of witnesses.”

He said that he hoped to dispose of the brothers’ bodies “out of state,” but a flat

tire foiled his plan. Ponticelli confessed that he took “eight or nine grams of

crack” and “like $900 cash off the bodies,” and he admitted that he and Turner

smoked all of the crack and spent most of the money on more crack. Ponticelli

stated that he intended to leave Florida to escape the authorities.

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Ponticelli then returned to Leonard’s house, where he told Leonard that the

Grandinettis had “harass[ed] him for some money,” and that “they weren’t going

to let him leave because he owed them some money.” Ponticelli admitted that he

directed the brothers around “back roads” where he shot and killed them. He

stated that he took a few hundred dollars and cocaine from the car. Ponticelli also

told Leonard, soon after Ponticelli returned Leonard’s gun, that he had noticed that

the car had a flat tire so he had left the bodies and had taken a cab home.

Ponticelli openly discussed his plans to cover up his crime. He told

Leonard that he burned the clothes he had worn when he killed the brothers. He

told Leonard and Leonard’s roommate, Bobby Meade, that he planned to escape to

Canada or Mexico. He told Leonard and Meade that, if questioned by the police

about the murder, he planned to either deny being with the Grandinettis after 9:00

p.m. or he would lie and say that “he was with them and some guy was with them,

too, and that the guy had shot them and let [Ponticelli] go.” When Ponticelli

returned to Dotson’s house, he showed Dotson his car and told Dotson that he

planned to “fix this car up . . . with the money that he got and use it as a getaway

car.”

After his arrest, Ponticelli confessed his crime to his jail cellmate, Dennis

Freeman. Ponticelli admitted to Freeman that he made several telephone calls

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from the Grandinettis’ trailer to trick the brothers into believing that he planned to

sell cocaine for them. Ponticelli told Freeman that the brothers drove him to

Dotson’s house and that, after he left Dotson’s house, he shot the brothers in their

car “to rob them of . . . cocaine and . . . money.” Ponticelli told Freeman that he

returned the gun to Leonard and asked Leonard to “get rid of it.” Ponticelli told

Freeman that he and Leonard discussed burning the bodies, but that he instead

eventually abandoned the bodies in the car because of a flat tire. Ponticelli

admitted that he took between $700 and $800 and cocaine from the bodies and

then took a cab to Dotson’s house, where he washed his clothes and told everyone

at the house about the murder. He stated that the next day he burned his clothes

and buried the burnt remains in a backyard. When Freeman asked Ponticelli if he

had “been doing any drugs or drinking, heavily or whatever” on the day that he

killed the brothers, Ponticelli denied it.

Ponticelli also asked Freeman if he would help dispose of some evidence

and drew Freeman a map with the location of that evidence. The map had

Dotson’s name and telephone number on it. At trial, the state introduced the map

into evidence.

Freeman testified that he had not received any benefit for his testimony

against Ponticelli. He also testified that he had been convicted of 26 felonies, all

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of which involved dishonesty. On cross-examination, Freeman admitted that he

was a “jailhouse snitch” who had provided information to law enforcement for the

past ten years and that he had earned money through participation in a reverse

sting operation.

After the state rested, the trial court entered a judgement of acquittal on the

robbery charge. The defense then presented evidence that Ponticelli was a cocaine

addict who had suffered from cocaine psychosis. In his opening statement,

defense counsel argued that Ponticelli’s cocaine addiction prohibited him from

forming the requisite intent to kill the brothers and that there was reasonable doubt

as to whether Ponticelli had even shot the brothers.

Ponticelli’s father, Michael Ponticelli Sr., testified that the family had

moved from Long Island, New York, to the Silver Springs Shores area of Florida a

little more than two years before the trial. Michael told the jury that around Labor

Day 1987, the family visited New York for about a month. When the family

returned to Florida in early October, Ponticelli stayed behind in New York for

another three weeks. When Ponticelli returned to Florida, Michael noticed that his

son had changed. Michael described Ponticelli as argumentative, short tempered,

and “very nervous, very thin, very agitated.”

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John Turner testified that he had known Ponticelli since he had moved to

Florida from New York and that, after Ponticelli’s return from his recent trip to

New York until the day before the murders, he and Ponticelli had used cocaine

every day. Turner testified that neither he nor Ponticelli worked and instead

smoked cocaine “all day long” from eight or nine in the morning to three or four

the next morning. Turner admitted that, before Ponticelli had returned from his

latest trip to New York, he had never seen Ponticelli use cocaine. On cross-

examination, Turner testified that he could not recall whether he had seen

Ponticelli on the day of the murders. When asked whether he knew whether

Ponticelli had used cocaine that day, Turner testified, “I don’t know, you know . . .

. I mean, I’m saying maybe we did that morning. It’s been awhile. I can’t really

remember exactly. I know it wasn’t that afternoon or that evening. I’m not—you

know, I don’t think I seen him.”

Joseph Leonard and Bobby Meade also testified for the defense. Leonard

stated that before Ponticelli returned from his latest trip to New York he was “real

reliable” and that, when he returned, he was “not like himself.” Meade agreed that

before Ponticelli visited New York he had been a “good friend” who was

“dependable” and “bubbly goofey.” Meade testified that, after Ponticelli returned

from New York, “he was more quiet. He didn’t talk as much like he used to. . . .

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He kept everything inside of him, and he would get like upset about little things.”

The defense attempted unsuccessfully to present the testimony of Dr. Mark

Branch, an expert in behavioral pharmacology. The defense offered to have Dr.

Branch present expert opinion testimony about the effects of cocaine on the mind

and body and to explain cocaine psychosis, but Branch could offer no testimony

on the elements of the insanity defense. The state objected to Dr. Branch’s

testimony on the grounds that Branch had never interviewed Ponticelli, that

Branch’s research had been limited to primates, and that Branch was not qualified

to testify that Ponticelli had suffered from cocaine psychosis at the time of the

murders. The trial court excluded Dr. Branch’s testimony.

The jury convicted Ponticelli of both murders.

C. Penalty Phase

During the penalty phase, the state presented no new evidence, but the

defense presented the testimony of Dr. Robin Mills, who had evaluated Ponticelli

for fifteen minutes before the trial for legal competence and sanity. Based on a

hypothetical question, which assumed that Ponticelli had no history of cocaine use

before October 1987, Dr. Mills testified that Ponticelli’s changes in his personality

were symptoms of someone who suffered from an extreme mental or emotional

disturbance induced by repeated exposure to illegal drugs. Defense counsel posed

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another hypothetical question, which assumed that Ponticelli had smoked cocaine

“every day, all day, up until [the day before the murders]”; that a few hours before

the murders, Ponticelli revealed his plan to four people who he had known for

“only four hours” while acting “nervous,” “hyper,” and “paranoid”; and that after

the murder, Ponticelli confessed the crime to these four people, washed his

clothes, asked for an alibi, called his mother, and arranged a ride home. Dr. Mills

testified, in response to that hypothetical question, that he believed that Ponticelli

had suffered from a drug-induced extreme mental or emotional disorder or

disturbance when Nick and Ralph were murdered and that Ponticelli’s capacity to

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

been substantially impaired. Dr. Mills testified that he believed that the statutory

mental health mitigators should apply even if Ponticelli had not consumed any

cocaine on the day of the murders: “The . . . effect [of cocaine] on the . . .

intellectual capacities can persist, in some cases, for a year after the intoxication . .

. so one day later, to his brain, would not make that much difference.” On cross-

examination, Dr. Mills admitted that Ponticelli “probably . . . had the ability to

know right from wrong” and that there “was some evidence” that he had the ability

to understand the consequences of his actions.

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During closing argument of the penalty phase, the prosecutor told the jury

that, although Ponticelli had used a lot of cocaine, “there was no evidence at all . .

. that he had used cocaine [the day of the murders]; none whatsoever.” The

prosecutor also reminded the jury that Ponticelli “voluntarily chose to use cocaine

. . . day in and day out . . . no one forced the defendant to use cocaine.” The jury

recommended two sentences of death by a vote of nine to three for the murders of

Nick and Ralph Grandinetti.

The trial court imposed a sentence of death for each conviction. The trial

court found two aggravating factors applicable to both murders: the murders were

committed for pecuniary gain, Fla. Stat. § 921.141(5)(f), and the murders were

“committed in a cold, calculated, and premeditated manner without any pretense of

moral or legal justification,” id. § 921.141(5)(i). The trial court also found that the

murder of Nick Grandinetti was “especially heinous, atrocious, [and] cruel.” Id. §

921.141(5)(h). The trial court found two statutory mitigators: Ponticelli had no

significant history of previous criminal activity, id. § 921.141(6)(a), and Ponticelli

was 20 years old at the time of the offense, id. § 921.141(6)(g). The trial court did

not find the existence of any nonstatutory mitigator.

The trial court rejected Dr. Mills’s hypothetical penalty phase testimony as

speculative and declined to find the existence of either statutory mitigator about

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mental health. The court rejected the argument that Ponticelli had been “under the

influence of extreme mental or emotional disturbance” when he killed the

brothers, id. § 921.141(6)(b). And the court rejected the argument that Ponticelli’s

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

the requirements of law had been substantially impaired, see id. § 921.141(6)(f).

D. Direct Appeal

When the Supreme Court of Florida affirmed Ponticelli’s convictions and

sentences on direct appeal, Ponticelli I, 593 So. 2d 483, the court rejected

Ponticelli’s argument that the trial court erred when it rejected the two statutory

mitigators about mental health. With regard to the extreme mental or emotional

disturbance mitigator, Fla. Stat. § 921.141(6)(b), the state supreme court agreed

with the trial court that Dr. Mills’s testimony was speculative because “Ponticelli

had not discussed his mental processes or any of the details of the offense with Dr.

Mills.” Ponticelli I, 593 So. 2d at 491. Dr. Mills relied only on a description of

“Ponticelli’s use of cocaine and . . . hyperactivity on the evening of the murders,

although there was no evidence of drug use on the evening of the murders.” Id.

With regard to whether Ponticelli’s capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirements of law was substantially

impaired, Fla. Stat. § 921.141(6)(f), the state supreme court determined that “there

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was no evidence that Ponticelli was using cocaine at the time of the murders” and

that “Ponticelli’s actions on the night of the murder evinc[ed] that his capacity to

appreciate the criminality of his conduct was not impaired.” Ponticelli I, 593 So.

2d at 491. The state supreme court concluded that “competent substantial

evidence” supported the finding of the trial court that the mitigator did not apply.

Id.

The Supreme Court of the United States granted Ponticelli’s petition for a

writ of certiorari, vacated the judgment of the Supreme Court of Florida, and

remanded for reconsideration in the light of Espinosa v. Florida, 505 U.S. 1079,

1082, 112 S. Ct. 2926, 2929 (1992). Ponticelli v. Florida, 506 U.S. 802, 113 S. Ct.

32 (1992). On remand, the Supreme Court of Florida again affirmed Ponticelli’s

sentences and concluded that any error under Espinosa was procedurally barred.

Ponticelli v. State (Ponticelli II), 618 So. 2d 154, 154–55 (Fla. 1993).

E. First State Postconviction Motion and Evidentiary Hearing

On April 11, 1995, Ponticelli filed a motion for postconviction relief in the

state trial court. See Fla. R. Crim. P. 3.851. Ponticelli amended his motion several

times and included numerous claims, including the claims before us now. The

trial court held two evidentiary hearings and Ponticelli presented testimony from

27 witnesses, including his trial counsel, the prosecutor, the lead detective,

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numerous lay witnesses, and four expert witnesses. The state called an expert

witness, psychologist Dr. Wayne Conger, in rebuttal.

The discussion of the evidence presented at the first evidentiary hearing is

divided into two parts. The first part discusses the evidence related to Ponticelli’s

due process claims and why the Florida courts rejected those claims. The second

part discusses the evidence related to Ponticelli’s background and mental health

and why the Florida courts rejected Ponticelli’s claims of ineffective assistance of

counsel.

1. Brady and Giglio Evidence

As to the evidence Ponticelli presented in support of his claims that the state

had violated his right to due process of law, see Brady, 373 U.S. 83, 83 S. Ct.

1194; Giglio, 405 U.S. 150, 92 S. Ct. 763, the Supreme Court of Florida divided

Ponticelli’s claims into three categories. First, the Supreme Court of Florida

considered the alleged suppression of and false evidence about an alleged

agreement to provide immunity for Dennis Freeman, the jailhouse informant.

Second, the Supreme Court of Florida considered the alleged suppression of

Timothy Keesee’s statements to the lead detective, Investigator Bruce Munster,

and the prosecutor, Sarah Williams, that he saw Ponticelli use cocaine at the

Grandinettis’ trailer on the night of the murders, and Keesee’s false trial testimony

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about that matter. Third, the Supreme Court of Florida considered the alleged

suppression of evidence and false testimony related to an alleged Thanksgiving

Day cocaine party at Dotson’s house, which lasted until almost the dawn of the

next day and during which the Brown brothers, Burgess, and Dotson smoked

cocaine with Ponticelli, contrary to their trial testimony that the first time they met

Ponticelli was on the evening of the murders. This discussion addresses these

categories of evidence in the same order.

a. Dennis Freeman’s Alleged Immunity Deal

During the first postconviction evidentiary hearing, Ponticelli presented

evidence to support his argument that the state had violated his right to due

process by suppressing evidence, see Brady, 373 U.S. 83, 83 S. Ct. 1194, and by

presenting false testimony, see Giglio, 405 U.S. 150, 92 S. Ct. 763, about an

alleged deal that the prosecution had made with Freeman in exchange for his

testimony against Ponticelli. Ponticelli’s counsel asked Williams about a note that

she had written to herself during the trial, which stated, “Spoke with Fred Landt

[Freeman’s defense counsel] regarding Dennis Freeman. Told him I would make

no firm offer prior to [Ponticelli’s] trial but assured him his cooperation would be

remembered with favor before mitigating judge/Sturgis. Will make no formal deal

on the record prior to trial.” Williams testified that Freeman “had been promised

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nothing for his testimony,” and that she did not know whether Freeman had later

received any favorable treatment.

The Supreme Court of Florida rejected Ponticelli’s arguments about the

alleged deal with Freeman. With respect to Ponticelli’s Brady claim, the court

stated that, “even if one accepts defense counsel’s testimony as sufficient to

establish” that the evidence was favorable to Ponticelli and that the evidence was

suppressed by the state, either willfully or inadvertently, “Ponticelli’s claim still

fails because Ponticelli has not established that the State’s failure to disclose this

evidence resulted in prejudice.” Ponticelli v. State (Ponticelli III), 941 So. 2d

1073, 1085 (Fla. 2006). The court rejected Ponticelli’s argument that the note

would have provided a basis for impeaching Freeman. The court reasoned that

Freeman’s testimony “was merely cumulative to that presented at trial”; Freeman’s

long criminal record and history of cooperation in exchange for benefits had

“significantly impeached . . . his motive for testifying and his capacity for

truthfulness”; and the map that Ponticelli had given Freeman in addition to the

testimonies of other witnesses corroborated Freeman’s testimony. Id. at 1085–86.

With respect to Ponticelli’s Giglio claim, the court held that, “even if we accept

Ponticelli’s allegation that the prosecutor’s note indicates that Freeman was not

honest when he testified that he did not expect to receive a benefit from

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cooperating in Ponticelli’s case, we find no prejudice.” Id. at 1089. Again, the

court reasoned that Freeman “was significantly impeached on his capacity for

truthfulness and his incentive for testifying against Ponticelli.” Id. The court

opined that “informing the jury that Freeman might be testifying falsely because of

his hope for an unguaranteed, unspecified award would not have rendered him

sufficiently less credible in the jury’s eyes to establish a reasonable possibility that

this contributed to the verdict.” Id. (internal quotation marks omitted).

b. Cocaine Use at the Trailer

Ponticelli also presented evidence to support his argument that the state had

violated his right to due process by suppressing evidence, see Brady, 373 U.S. 83,

83 S. Ct. 1194, and by presenting false testimony, see Giglio, 405 U.S. 150, 92 S.

Ct. 763, about whether Timothy Keesee had seen Ponticelli use cocaine at the

Grandinetti’s trailer on the night of the murders. During the postconviction

hearing, Keesee testified that he had lied at trial and had, in truth, seen Ponticelli

snort “one line of [cocaine] that was about two matchsticks long” sometime

between 7:30 and 8:00 p.m. at the Grandinettis’s trailer on the night of the

murders. Keesee testified that, when Williams interviewed him about Ponticelli,

he was “positive” that he told her that he, the Grandinettis, and Ponticelli had used

cocaine that night. On cross-examination, he admitted that he didn’t “recall

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[Williams] asking specifically if Ponticelli did cocaine. She said: ‘Did you all do

some cocaine.’ And I said, ‘Yes we did; one line.” Keesee testified too that he

told Investigator Munster that he left the trailer with his brother because “at the

time my brother was in the Navy, and they had coke out, and we had done a line of

coke, and I knew my brother was uncomfortable . . . .” Keesee admitted that he

told Ponticelli’s trial counsel that no one had used cocaine on the night of the

murders because “[o]ne line wasn’t enough to influence me to say that we did

coke.” Keesee testified that he had abused drugs at the time of trial and he lied to

“get out of the spotlight . . . it would bring more trouble on me if I didn’t

cooperate. So I was trying to play ball and just get the past past me.” Keesee

testified that Munster had searched his car and found drug paraphernalia. When

Munster did not say anything, Keesee believed that Munster would “go light on

[him]” in exchange for his cooperation. He also testified that Williams had asked

him questions during trial preparation like “Did ya’ll do any coke,” and when he

said, “no,” Williams would reply, “Okay, good.” Keesee testified that he “could

tell by her response . . . [that he] was helping her case.” Despite his cooperation,

Keesee admitted that he was charged with possession of cocaine a month before

the prosecution took his deposition in Ponticelli’s case.

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Investigator Munster testified that Keesee told him he left the Grandinettis’s

trailer on the night of the murder because of “cocaine usage” there. Munster

included this information in a supplemental report dated December 1987 that

stated that Keesee left the Grandinettis’s trailer on the night of the homicides

because of cocaine usage taking place there and because of a cocaine deal

occurring between Nick, Ralph, and a white male identified as Tony. Munster

provided Ponticelli’s trial counsel this report.

The prosecutor, Williams, denied that she knew that Ponticelli had smoked

cocaine on the night of the murders. Williams acknowledged that she had written

a note that stated, “Owed them $300. R and N wanted it. Not physical. No

threats. He was making calls to sell coke, collect money, doing cocaine,” but she

could not remember who “he” was. Williams also acknowledged that she had

written a note on Keesee’s deposition testimony that Keesee “[d]idn’t see them do

cocaine. Didn’t tell anyone,” and that she had underlined “Didn’t tell anyone,”

and had written in the margin “Told BM. Taped.” She testified that she didn’t

remember why she wrote the note, but that she did not believe that Keesee had

made an inconsistent statement because “[o]ftentimes I’ll put a question mark next

to [an inconsistent statement] and there’s not a question mark.”

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The trial court determined that Williams’s notes were neither exculpatory

nor material. With respect to Williams’s first note about an unidentified

individual who had used cocaine, the trial court held that “there is no way of

knowing whether [defense counsel] would have gathered from the note[s] that

[Ponticelli] was using cocaine at the trailer on the night of the murders,” and in the

light of the “overwhelming evidence of Ponticelli’s guilt, no reasonable

probability exists that the evidence regarding drug usage found in [Williams’s]

interview notes would have changed the outcome of the guilt or penalty phase of

Ponticelli’s trial.” Ponticelli III, 941 So. 2d at 1086 (internal quotation marks and

alterations omitted). With respect to Williams’s second note about Keesee’s

allegedly inconsistent statement, the trial court “found no evidence that the State

either knowingly presented, or allowed to be presented, perjured testimony at

trial.” Id. at 1090 (internal quotation marks omitted). The court “recognized that

Keesee testified adamantly at deposition and at trial that he did not see Ponticelli

use cocaine on the day of the crimes, and that references to drug use found in the

state investigator’s and [Williams’s] notes are vague.” Id. (internal quotation

marks and alterations omitted). The court concluded, “It is understandable that

[Williams] and [Munster] could have overlooked vague statements in their notes

when faced with this testimony.” Id.

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The Supreme Court of Florida agreed with the ruling of the trial court that,

even in the light of Keesee’s testimony, the prosecutor’s notes were neither

exculpatory nor material. The court reasoned that Williams’s note about an

unidentified individual who had used cocaine did “not clearly indicate that

Ponticelli was the person Keesee witnessed using cocaine on the night of the

murders,” and trial counsel could have confronted Keesee with Munster’s report,

which “contained substantially the same information as the prosecutor’s note.” Id.

at 1087. The court held that the findings of the trial court with respect to

Williams’s second note were “supported by competent, substantial evidence. The

prosecutor’s notation on Keesee’s deposition testimony does not clearly indicate

that the prosecutor knew Keesee was testifying falsely.” Id. at 1090.

c. Cocaine Party

Ponticelli also presented evidence at the first evidentiary hearing that the

state had violated his right to due process by suppressing evidence, see Brady, 373

U.S. 83, 83 S. Ct. 1194, and by presenting false testimony, see Giglio, 405 U.S.

150, 92 S. Ct. 763, about an alleged cocaine party that took place at Dotson’s

house the night before the murders. At the evidentiary hearing, Burgess and Ed

Brown admitted that they had testified falsely at Ponticelli’s trial. Contrary to

their trial testimony that they had first met Ponticelli on the evening of the

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murders, both admitted that they had met Ponticelli either late on Thanksgiving

night or in the early morning hours of the next day. Both testified that there was a

party at Dotson’s house on Thanksgiving Day and that they had smoked cocaine

with Ponticelli at Dotson’s house until the party had ended at around 4:00 a.m. the

next day. The two men admitted too that they had used cocaine with Ponticelli the

next night, after Ponticelli had murdered the Grandinettis. Both men testified that

they had not told the prosecution about the cocaine party.

John Turner also testified about the cocaine party. He stated that he and

Ponticelli had smoked cocaine with those present at Dotson’s house, including the

Browns, Burgess, and Dotson. Turner testified that he had provided this

information to Ponticelli’s trial counsel and to Munster.

Munster testified about two notes that he had written, which Ponticelli

argued proved that Munster knew that Ponticelli had attended the cocaine party.

The first note stated, “Went to someone’s house to drop off girl. Both Tony and

John are there. They are smoking coke out of an orange juice can.” But Munster

could not remember to whom the pronoun “they” referred or on what night the

incident allegedly took place. The second note stated, “At jail with Dennis

Freeman. Thanks night. Tony says Tony and John and two guys from West

Virginia, his cousin, went to Nick’s house. . . . Tony bought eight ball of coke that

26 Case: 11-11966 Date Filed: 08/16/2012 Page: 27 of 90

night. . . . Tony went back to Keith’s house afterwards.” Munster testified that he

could not remember whether he disclosed the note to Ponticelli’s trial counsel and

did not know if trial counsel would have thought that the note was material.

The Supreme Court of Florida determined that the evidence did not prove

that the prosecution knew about the cocaine party and that, “even if they did,

Ponticelli has not established that the suppression resulted in prejudice.”

Ponticelli III, 941 So. 2d at 1087. The court reasoned that the only “evidence

tying the[] [first] note[] to Ponticelli’s cocaine use at the time of the crimes was Ed

Brown’s testimony, and at the evidentiary hearing, Brown denied telling the State

about the cocaine party.” Id. at 1087–88. With respect to the second note, which

allegedly proved that Ponticelli had told Freeman about the cocaine party, the

court concluded that its suppression was not material because “Ponticelli refused

to answer defense counsel’s inquiries regarding Ponticelli’s cocaine use at the time

of the crimes” and “at trial, [the Browns and Burgess] contradicted this statement

in their sworn testimony.” Id. at 1088. With respect to Turner’s alleged statement

to the state investigator, the court reasoned that, even if Turner had made the

statement to Munster, defense counsel had that evidence. Id.

The Supreme Court of Florida also rejected Ponticelli’s argument that “the

State violated Giglio by allowing Brian Burgess and Edward Brown to testify

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falsely at trial about the date they first met Ponticelli and whether they had ever

seen Ponticelli use cocaine.” Id. at 1091. The court held that the finding of the

trial court that the state did not know that the witnesses had testified falsely was

“supported by competent, substantial evidence.” Id. The court determined that

“there was no evidence presented at the evidentiary hearing that the State knew

that Burgess or Brown testified falsely; in fact, Burgess and Brown testified at the

evidentiary hearing that they never told the State they saw Ponticelli use cocaine

the night before the crimes . . . .” Id. at 1091–92.

2. Ponticelli’s Background and Mental Health

Ponticelli also presented the testimony of his trial counsel, numerous lay

witnesses, and various mental health experts about his trial counsel’s investigation

of Ponticelli’s competency and potential evidence in mitigation. He argued that

his right to effective assistance of counsel, under the Sixth and Fourteenth

Amendments, had been violated, see Strickland, 466 U.S. 668, 104 S. Ct. 2052,

because his trial counsel had failed to conduct an adequate investigation into his

background and mental health, which Ponticelli argued prejudiced him.

Defense counsel testified that Ponticelli’s trial was his first capital trial, that

he did not know how to prepare for a penalty phase, that his only assistance came

from a former deputy, and that the vast majority of his preparation was devoted to

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the guilt phase. To investigate evidence for mitigation, trial counsel talked with

Ponticelli’s parents and asked them for names of persons who Ponticelli knew as a

child. Although Ponticelli’s parents provided trial counsel with the names of some

of Ponticelli’s former teachers, employers, and family members, counsel did not

contact any of them. Trial counsel did not consider medical or school records and

testified that he had only a partial view of Ponticelli’s drug use and background at

the time of trial. Ponticelli III, 941 So. 2d at 1092. When asked about the lack of

investigation into Ponticelli’s past, trial counsel agreed that there was mitigating

evidence he could have discovered and would have used during the penalty phase.

Trial counsel also testified that, had he known more, he would not have conceded

in the penalty phase the aggravating circumstance that the killings were cold,

calculated, and premeditated.

At the first evidentiary hearing, several witnesses testified about Ponticelli’s

childhood. Ponticelli’s sister testified that Ponticelli had been born a “blue baby,”

which Dr. Conger explained “means there was insufficient oxygen during the birth

process.” Ponticelli’s sister explained that Ponticelli was placed in foster-care

months after his birth, and later adopted by the Ponticelli family. Many witnesses

described Ponticelli as a typical, quiet child who grew up in New York. A few

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witnesses described Ponticelli as socially-awkward and acknowledged that

Ponticelli had worn glasses and was overweight.

Several witnesses described how Ponticelli started to abuse drugs as an

adolescent. In junior high school, Ponticelli experimented with marijuana and

beer. In high school, Ponticelli started to experiment with other drugs, including

black beauties, mescaline, hash, Valium, and cocaine. The lay witnesses testified

that, when Ponticelli was not using drugs, he was sweet and respectful. But when

Ponticelli used drugs, he became paranoid and experienced mood swings.

The evidence established that, soon after Ponticelli graduated high school,

his family moved to Florida where he stopped using cocaine and held a job.

Ponticelli returned to his former relaxed demeanor. But it did not last. When he

returned to New York in 1987 to attend a cousin’s wedding, Ponticelli began using

cocaine again. John Turner testified, as he did at trial, that he and Ponticelli

started using cocaine nearly every day. And Turner was not the only witness to

Ponticelli’s return to cocaine use. Ponticelli also presented the testimony of Frank

Porcillo, who had not testified at the trial. After Porcillo befriended Ponticelli in

Florida, they smoked marijuana and drank alcohol together. Porcillo did not know

that Ponticelli used cocaine until after Ponticelli returned from a trip to New York

several weeks before the murders. After the New York trip, Porcillo became

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aware that Ponticelli was smoking cocaine and noticed changes in his behavior.

Porcillo witnessed Ponticelli use cocaine once after he returned from New York

and observed that Ponticelli acted “paranoid, looking around all the time, just not

easy to be around,” and “[h]iding in the corner.”

Porcillo’s testimony suggested that Ponticelli used cocaine on the night of

the murders. Porcillo testified that he encountered Ponticelli around 8:00 p.m. at a

convenience store on the night of the murders. Ponticelli approached a car in

which Porcillo was a passenger and spoke to him and other occupants of the car.

Ponticelli kept his hands in his jacket and rubbed and scratched his stomach.

Porcillo and his companions concluded that Ponticelli was “whacked out” based

upon his behavior. Porcillo testified that, based on his familiarity with Ponticelli’s

reaction to cocaine, he believed Ponticelli was under the influence of cocaine

when he saw him at the convenience store. On cross-examination, Porcillo also

recalled seeing a red car at the convenience store when he saw Ponticelli, which he

later realized was the Grandinettis’s vehicle. Porcillo testified that he knew about

how people could act under the influence of crack cocaine because he had a family

member who was addicted to that drug.

Ponticelli also presented witnesses to his behavior during his pretrial

detention. Ponticelli’s former cellmates testified that “they often saw Ponticelli

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pacing in his cell, at times with a cloth over his head, and constantly reading his

Bible and praying.” Ponticelli III, 941 So. 2d at 1101. Numerous friends and

family members testified that “Ponticelli wrote them long letters from jail that

were fragmented and uncharacteristically religious.” Id. Trial counsel testified

that Ponticelli’s “bizarre behavior continued throughout the trial.” Id. Ponticelli’s

sister testified that, although their father had been a religious fundamentalist, she

had never known Ponticelli to be one too. Id.

In addition to the lay witness testimony, four mental health experts, Dr.

Harry Krop, Dr. Barry Crown, Dr. Michael Herkov, and Dr. Mark Branch, testified

on behalf of Ponticelli at the evidentiary hearing. Krop, Herkov, and Branch

testified that, in the light of Ponticelli’s reported cocaine abuse, both mental health

statutory mitigators applied: that is, Ponticelli suffered from an extreme emotional

or mental disturbance at time of the murders and Ponticelli’s ability to conform his

behavior to the requirements of law had been substantially impaired. Krop and

Herkov agreed that Ponticelli had not been competent to stand trial. Crown

expressed no opinion about Ponticelli’s competency to stand trial nor about

whether the statutory mental health mitigators applied. He concluded that

Ponticelli’s brain functioning was impaired and that “his deficits were particularly

related to executive functions.”

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Doctors Crown and Branch conducted only limited research. Crown

admitted that he had evaluated Ponticelli seven years after the murders and that he

had never been qualified as an expert in neurology in any court of law. He

testified that his opinion was based entirely on neuropsychological tests that he

had conducted on Ponticelli and that he had not considered other materials or

testimony, including testimony about how Ponticelli appeared to exercise

executive type reasoning on the night of the murders. Branch, an animal

researcher, did not test Ponticelli at all and testified that he was not qualified to

testify that Ponticelli suffered from cocaine psychosis.

Crown, Herkov, and Krop made several important concessions about

Ponticelli’s culpability. Herkov and Krop testified that they could not express an

opinion about Ponticelli’s sanity at the time of the murders. Crown conceded that

Ponticelli had normal intelligence. Herkov and Krop conceded that Ponticelli

understood that his acts were wrong. Krop admitted that he believed that

Ponticelli “was sufficiently coherent and relatively well organized and knew that

what had happened was a crime and wrong.” All three experts acknowledged that

Ponticelli’s behavior on the night of the murder suggested that he was “goal

orientated.” Herkov admitted that, even if Ponticelli suffered from an extreme and

emotional disturbance at the time of the murders, he could still have formed the

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heightened premeditation necessary for both the cold, calculated, and premeditated

aggravator and the heinous, atrocious, and cruel aggravator to apply. Herkov

conceded that Ponticelli’s behavior that night “sound[ed] like he . . . [was] very

much trying to avoid the consequences of his actions.”

Herkov later was recalled as a witness and conceded that there were facts,

some of which were unknown to him when he performed his initial evaluation,

that cast doubt on his original opinions. These facts included that Ponticelli had

assisted his counsel during the trial and that Ponticelli had attempted to dispose of

the evidence by drawing Freeman an accurate map. Herkov also admitted that

Ponticelli could have been rationally motivated by pecuniary gain.

Dr. Wayne Conger testified, on behalf of the state, that, in his opinion,

neither statutory mental health mitigator applied and that Ponticelli had been

competent to stand trial. Conger also denied that Ponticelli’s brain functions were

significantly impaired. Conger testified that Ponticelli was a “normal functioning

individual,” both intellectually and cognitively. He testified that Ponticelli’s

actions before, during, and after he killed the brothers “demonstrated significant,

goal-oriented behavior that was inconsistent with significant cognitive dysfunction

and with the allegation that Ponticelli’s cocaine use prevented him from reasoning

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effectively.” Ponticelli III, 941 So. 2d at 1094. Conger also testified that

Ponticelli’s strong grades in school “rule[d] out significant organic problems.”

Conger conducted many of the same tests as Crown, but reached different

conclusions. Conger testified that Crown’s results were not valid and that the

differences between his results and Crown’s results suggested that Ponticelli had

malingered when taking Crown’s tests. Conger testified that, “even if he were to

assume that Crown’s tests were accurate, . . . he did not believe the results

supported Crown’s hypothesis.” Ponticelli III, 941 So. 2d at 1094. Dr. Conger

also testified about the results of a personality test, which showed that Ponticelli

had “the typical profile of an antisocial personality disorder: an individual who

does not necessarily comply with the requirements of the law and adventure

seeking without any particular concern for rules and regulations.”

The trial court rejected Ponticelli’s claim of ineffective assistance during the

penalty phase of his trial. The trial court found that Ponticelli had failed to

establish that he had been prejudiced by trial counsel’s failure to offer the lay

witness testimony because that evidence was either cumulative of the evidence

presented at trial or “would have had a negative effect on Ponticelli’s case”

because “[i]nstead of being a young man who naively experimented with drugs for

a short period of time, the lay witnesses . . . portray [Ponticelli] as a man who

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escaped the ill effects of drugs for a substantial period of time in Florida and then

returned to a habit he knew was evil.” Id. at 1095. About the mental health

evidence, the trial court found Dr. Conger’s testimony to be the most credible. Id.

The Supreme Court of Florida affirmed. Although the court concluded that

Ponticelli had established deficient performance, it ruled that Ponticelli was not

prejudiced by his counsel’s deficiencies. Id. at 1095–99. The court based its

decision on “the significant aggravators and the overwhelming amount of evidence

convicting Ponticelli of these homicides”:

A number of witnesses testified at trial that Ponticelli first announced his plan to kill the Grandinettis; then, after following through on this plan, confessed that he did it and asked for help in covering it up. Furthermore, two of the three aggravating factors found for Nick Grandinetti’s death, i.e., HAC and CCP, have been recognized as two of the most serious aggravators set out in the statutory sentencing scheme.

Id. at 1097 (internal quotation marks omitted). The court determined that the lay

witness testimony was weak and cumulative of the evidence presented at trial:

The lay witness testimony presented at the evidentiary hearing is certainly not sufficient to establish mitigators that outweigh these aggravators. As the trial court recognized, the testimony presented at the evidentiary hearing was largely cumulative to that presented at trial and to which defense counsel referred in his closing statement during the penalty phase. During the guilt phase, the jury heard a number of witnesses testify to Ponticelli’s positive character and the effect of cocaine on his life. Ponticelli’s father testified that Ponticelli worked a part-time job during high school and was a “good kid.” John Turner, Ponticelli’s close friend, testified that he was with Ponticelli every day after Ponticelli returned from his visit to New York and that Ponticelli 36 Case: 11-11966 Date Filed: 08/16/2012 Page: 37 of 90

used cocaine almost constantly during this time. Turner and Ponticelli’s father also testified to Ponticelli’s paranoid behavior when he was under the effects of cocaine, and Brian Burgess testified at trial that Ponticelli was acting nervous on the night he appeared at Dotson’s. At the penalty phase, which occurred nine days after the guilt phase ended, defense counsel specifically connected the testimony regarding Ponticelli’s paranoid behavior to his cocaine use. Counsel led Dr. Mills to testify that this paranoia was indicative of the mental health mitigators. On numerous occasions, this Court has denied ineffectiveness claims when the evidence presented at the evidentiary hearing was merely cumulative to that presented at trial. . . .

The Supreme Court of Florida rejected, on three separate grounds,

Ponticelli’s argument that his trial counsel’s failure to discover the mental health

evidence had prejudiced him. First, the court reasoned that the mental health

evidence was not sufficient to overcome the aggravators because no expert had

testified that Ponticelli was retarded or suffered from a major mental illness. Id. at

1098. Second, because there was conflicting testimony about whether the mental

health mitigators were established, the court deferred to the finding of the trial

court that Dr. Conger was the most credible. Id. Third, the court concluded that

the mental health testimony was cumulative of the testimony provided by Dr.

Mills at the trial:

Dr. Mills unequivocally testified at trial that both statutory mental health mitigators applied in Ponticelli’s case and that Ponticelli’s paranoid behavior was consistent with an extreme cocaine addiction. While Dr. Crown and Dr. Herkov may have presented more compelling testimony 37 Case: 11-11966 Date Filed: 08/16/2012 Page: 38 of 90

at the evidentiary hearing, this is not dispositive. There is no reasonable probability that these experts would have led the trial court to find the mitigating factors at the time of trial. The trial court did not find the mitigators from Dr. Mills’ testimony because there was no evidence Ponticelli had used cocaine on the day of the offenses, and none of the evidence presented at the evidentiary hearing to refute this finding was available to counsel at the time of trial, even after a reasonable investigation.

Id. (internal citations omitted).

The Supreme Court of Florida also rejected Ponticelli’s claim about his

counsel’s performance during the pre-trial phase. The court concluded that

Ponticelli’s argument that “counsel was ineffective for waiting until a month

before trial to file his motion for psychiatric evaluation and for failing to obtain

jail records and to interview cellmates who would have provided additional

information regarding Ponticelli’s strange behavior” was “without merit.” Id. at

1102. The court reasoned that Ponticelli had failed to provide “evidence that it

was unreasonable for defense counsel to file his motion for a psychiatric

evaluation a month before trial; in fact, counsel testified that he filed this motion

as soon as he noticed Ponticelli consistently refusing to speak with him about the

case.” Id. The court determined that not one of the mental health experts who had

testified at the evidentiary hearing had testified that they believed that the mental

health evaluations during the competency hearing were inadequate. The court

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reasoned too that Ponticelli’s former cellmates did not reveal “anything significant

that the experts did not know when they evaluated Ponticelli.” Id.

F. Successive Postconviction Motion and Second Evidentiary Hearing

At a second evidentiary hearing, Ponticelli presented more evidence of the

alleged deal with Freeman and about the cocaine party. The evidence about the

alleged deal included several letters that suggested Freeman sought gain time for

his testimony in the Ponticelli trial and that Freeman’s wife “was told of promises

made to Freeman by the [State Attorney’s Office] to reduce his sentence that had

not been fulfilled.” Ponticelli also presented evidence that, on the day of

Freeman’s deposition, Freeman received 33 days of meritorious gain time and that

he was released from prison soon after he testified against Ponticelli. The

evidence about the cocaine party included the testimony of Warren Brown, who

confirmed that, contrary to his trial testimony, he had met Ponticelli on

Thanksgiving night and had smoked cocaine with him that night.

Again, the Supreme Court of Florida rejected Ponticelli’s Brady and Giglio

claims. The court stated that, “for the same reasons explained in our previous

opinion, Ponticelli has failed to meet the prejudice prong under Brady or the

materiality prong under Giglio.” Ponticelli v. State, No. SC09–992, 49 So. 3d

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236, *1 (Fla. Nov. 10, 2010) (unpublished table opinion). That summary order

concluded Ponticelli’s proceedings in the state courts.

G. Federal Habeas Corpus Proceedings

Ponticelli filed a federal petition for a writ of habeas corpus while his

successive postconviction motion was pending in the state trial court, and the

district court later denied relief. The district court ruled that the Supreme of Court

of Florida reasonably applied clearly established federal law when it rejected the

claims presented in this appeal. With respect to the claim of ineffective assistance

of counsel, the court ruled that “Porter v. McCollum, ---U.S.---, 130 S. Ct. 447

(2009)[,] and Sears v. Upton,---U.S.---, 130 S. Ct. 3259 (2010), are distinguishable

and do not announce any new rules of constitutional interpretation; they merely

apply Strickland to different sets of facts.” The district court granted a certificate

of appealability with respect to Ponticelli’s Brady and Giglio claims and his claim

that counsel had rendered ineffective assistance during the penalty phase of his

trial. A judge of this Court expanded the certificate to include Ponticelli’s claim

that counsel had been ineffective in his preparation of evidence of Ponticelli’s

competence to proceed to trial.

II. STANDARD OF REVIEW

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The Antiterrorism and Effective Death Penalty Act of 1996 governs

Ponticelli’s petition and our review of the decisions of the Supreme Court of

Florida that denied him postconviction relief. 28 U.S.C. § 2254(d). We will not

disturb the decision of the state court unless the decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or “was based on an

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

State court proceeding.” Id. “The Supreme Court of the United States has held

that § 2254(d)(1) imposes a ‘highly deferential standard for evaluating state-court

rulings,’ a standard ‘which demands that state-court decisions be given the benefit

of the doubt.’” Rutherford v. Crosby, 385 F.3d 1300, 1306–07 (11th Cir. 2004)

(quoting Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002))

(internal citation omitted). “A state court decision involves an unreasonable

application of federal law when it identifies the correct legal rule from Supreme

Court case law but unreasonably applies that rule to the facts of the petitioner’s

case,” Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1178 (11th Cir. 2010)

(internal quotation marks omitted), or when it “unreasonably extends, or

unreasonably declines to extend, a legal principle from Supreme Court case law to

a new context,” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).

41 Case: 11-11966 Date Filed: 08/16/2012 Page: 42 of 90

To determine whether the state court unreasonably applied clearly

established federal law in adjudicating Ponticelli’s habeas petition, this Court must

conduct the two-step analysis that the Supreme Court set forth in Harrington v.

Richter, --- U.S. ----, 131 S. Ct. 770 (2011). First, this Court “must determine

what arguments or theories supported or, [if none were stated], could have

supported the state court’s decision.” Johnson v. Sec., Dep’t of Corr., 643 F.3d

907, 910 (11th Cir. 2011) (quoting Harrington, 131 S. Ct. at 786) (alteration in

original) (internal quotation marks omitted). Second, this Court “must ask

whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision of [the Supreme]

Court.” Id. (alteration in original) (internal quotation marks omitted). In other

words, we may issue a writ of habeas corpus only when “the state court’s ruling on

the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.

“The question whether a state court errs in determining the facts is a

different question from whether it errs in applying the law.” Rice v. Collins, 546

U.S. 333, 342, 126 S. Ct. 969, 976 (2006). “Our review of findings of fact by the

state court is even more deferential than under a clearly erroneous standard of

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review.” Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005). We presume

findings of fact to be correct, and Ponticelli bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

This discussion is divided into two parts. Part A addresses Ponticelli’s

argument that the Supreme Court of Florida unreasonably applied clearly

established federal law or unreasonably determined facts when it denied

Ponticelli’s Brady and Giglio claims. Part B addresses Ponticelli’s argument that

the Supreme Court of Florida unreasonably applied Strickland when it ruled that

trial counsel’s investigation of Ponticelli’s competence to proceed to trial did not

constitute deficient performance and that Ponticelli was not prejudiced by his

lawyer’s investigation and presentation of evidence in mitigation during the

penalty phase.

A. The Supreme Court of Florida Reasonably Applied Brady and Giglio and Reasonably Determined the Underlying Facts.

Ponticelli argues that the rejection of the Supreme Court of Florida of his

Brady and Giglio claims involved an unreasonable application of clearly

established federal law or an unreasonable determination of the underlying facts.

To obtain relief on his Brady claim, Ponticelli had to “establish (1) the government

possessed evidence favorable to him; (2) the defendant did not possess the 43 Case: 11-11966 Date Filed: 08/16/2012 Page: 44 of 90

evidence and could not have obtained it with reasonable diligence; (3) the

government suppressed the favorable evidence; and (4) the evidence was

material.” Lamarca v. Sec’y, Dep’t of Corr., 568 F.3d 929, 941 (11th Cir. 2009)

(internal quotation marks omitted). “Evidence would be ‘material’ if it is

reasonably probable that a different outcome would have resulted if the

government had disclosed the evidence. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Ferguson v. Sec’y for the

Dep’t of Corr., 580 F.3d 1183, 1205–06 (11th Cir. 2009) (some internal quotation

marks and citation omitted). To obtain relief on his Giglio claim, Ponticelli had to

“prove: (1) the prosecutor knowingly used perjured testimony or failed to correct

what he subsequently learned was false testimony; and (2) such use was material,

i.e., that there is any reasonable likelihood that the false testimony could have

affected the judgment.” Trepal v. Sec’y, Fla. Dep’t of Corr., no. 10-15306, 2012

WL 2308155, at *17 (11th Cir. June 19, 2012) (internal quotation marks omitted).

“The Giglio materiality standard is different and more defense-friendly than

the Brady materiality standard.” Id. at *18 (internal quotation marks omitted).

“[F]or Brady violations, the defendant must show a reasonable probability the

result would have been different, but for Giglio violations, the defendant has the

44 Case: 11-11966 Date Filed: 08/16/2012 Page: 45 of 90

lighter burden of showing that there is any reasonable likelihood that the false

testimony could have affected the jury’s judgment.” Id.

The discussion of these claims is divided into two parts. Part one addresses

Ponticelli’s argument that his due process rights, under Brady, were violated when

the prosecution suppressed evidence of an alleged deal with Freeman and of

Ponticelli’s cocaine use on the night of the murders and attendance at a cocaine

party on Thanksgiving Day. See Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97. Part

two addresses Ponticelli’s argument that his due process rights, under Giglio, were

violated when the prosecution failed to correct Freeman’s testimony that he

received no benefit in exchange for his testimony against Ponticelli, Keesee’s

testimony that he did not see Ponticelli use cocaine at the Grandinettis’s trailer on

the night of the murders, and the testimony of Burgess and Brown that they had

not met Ponticelli before the night of the murders. See Giglio, 405 U.S. at

153–54, 92 S. Ct. at 765–66.

1. The Supreme Court of Florida Reasonably Applied Brady and Reasonably Determined the Facts.

Ponticelli argues that the Supreme Court of Florida unreasonably applied

Brady and unreasonably determined the underlying facts, but that argument fails.

With respect to the alleged deal between the prosecution and Freeman, the state

supreme court considered the evidence of an alleged deal under the correct 45 Case: 11-11966 Date Filed: 08/16/2012 Page: 46 of 90

standard for materiality, Ponticelli III, 941 So. 2d at 1085 (considering why the

alleged suppression did “not rise to the level necessary to put the whole case in

such a different light as to undermine our confidence in the verdict”), and

reasoned that Freeman had already been substantially impeached on his “motive

for testifying and his capacity for truthfulness” because the jury heard that

Freeman had worked undercover for the police on multiple occasions; had

received cash in exchange for his cooperation on at least one occasion; and had

admitted that each of his twenty-six previous felony convictions involved crimes

of dishonesty. Id. The court also reasoned that multiple witnesses as well as the

map Ponticelli provided to Freeman corroborated his testimony. Id. at 1085–86.

It cannot be said that this ruling about materiality “was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.

With respect to evidence about Ponticelli’s use of cocaine on the night of the

murders and attendance at the cocaine party on Thanksgiving night, the Supreme

Court of Florida deferred to the finding of the trial court that the state did not

knowingly suppress this evidence. Ponticelli failed to satisfy his burden of

rebutting, by clear and convincing evidence, this factual determination. See 28

U.S.C. § 2254(e)(1). The Supreme Court of Florida was entitled to credit the

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testimony of the prosecutor, Williams, who denied knowing that Ponticelli had

used cocaine on the night of the murders or had attended a cocaine party the day

before the murders. Some of the evidence about these issues, such as Munster’s

report and Turner’s testimony, was provided to Ponticelli’s counsel, and the

remaining evidence, such as Munster’s and William’s cryptic notes, is neither

clear nor convincing.

Ponticelli argues that the Supreme Court of Florida reviewed his Brady

claim too “narrowly” and “ignored much of the evidence presented at the

postcoviction hearing,” but “to merit AEDPA deference the state court need not . .

. provide a detailed opinion covering each aspect of the petitioner’s argument.”

Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 748 (11th Cir. 2010). That the

Supreme Court of Florida did not explicitly discuss every piece of evidence is of

no moment because we must presume “that state courts know and follow the law,”

and “state court decisions [must] be given the benefit of the doubt.” Visciotti, 537

U.S. at 24, 123 S. Ct. at 360. “[F]ederal habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’ not a license to penalize a state

court for its opinion-writing technique.” Lafler v. Cooper, --- U.S. ---, 132 S. Ct.

1376, 1396 (2012) (Scalia, J., dissenting) (quoting Harrington, 131 S. Ct. at 786).

And Allen v. Secretary, Florida Department of Corrections forecloses Ponticelli’s

47 Case: 11-11966 Date Filed: 08/16/2012 Page: 48 of 90

argument that the “piecemeal” analysis of the court suggests that it did not follow

the correct standard for materiality. See 611 F.3d at 749. In Allen, we reasoned

that the “existence of item-by-item analysis . . . is not inconsistent with a

cumulative analysis. Indeed, the only way to evaluate the cumulative effect is to

first examine each piece standing alone.” Id. at 749 (internal quotation marks

omitted); see also Kyles v. Whitley, 514 U.S. 419, 436 n.10, 115 S. Ct. 1555, 1567

n.10 (1995) (“We evaluate the tendency and force of the undisclosed evidence

item by item; there is no other way. We evaluate its cumulative effect . . .

separately.”). Ponticelli cannot overcome the presumption that the Florida state

court assessed prejudice cumulatively. See Visciotti, 537 U.S. at 24, 123 S. Ct. at

360; see also Greene v. Upton, 644 F.3d 1145, 1159–60 (11th Cir. 2011) (“Greene

raised a claim on direct appeal about the cumulative effect of the prosecutor’s

allegedly prejudicial statements, and the Supreme Court of Georgia rejected it. . . .

Although Greene contends that the Supreme Court of Georgia failed even to

consider his claim of cumulative prejudicial effect, we must presume otherwise.”).

2. The Supreme Court of Florida Reasonably Applied Giglio and Reasonably Determined the Facts.

Ponticelli argues that the Supreme Court of Florida unreasonably applied

Giglio and unreasonably determined the underlying facts of his Giglio claim, but

this argument too fails. With respect to the alleged Freeman deal, the Supreme 48 Case: 11-11966 Date Filed: 08/16/2012 Page: 49 of 90

Court of Florida reasoned that any suppression was immaterial because Freeman

had already been substantially impeached and numerous witnesses as well as

physical evidence corroborated Freeman’s testimony. It cannot be said that this

decision, even under the more defense-friendly standard of Giglio, “was so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington,

131 S. Ct. at 786–87. With respect to Keesee’s false testimony and the evidence

about Ponticelli’s attendance at the cocaine party, the trial court found and the

state supreme court affirmed that the prosecution did not knowingly present false

testimony, and Ponticelli failed to satisfy his burden of rebutting, by clear and

convincing evidence, these factual determinations. See 28 U.S.C. § 2254(e)(1).

B. The Supreme Court of Florida Reasonably Applied Strickland.

Because Ponticelli argues that his trial counsel rendered ineffective

assistance of counsel, Ponticelli must establish both that trial counsel’s

“performance was deficient, and that the deficiency prejudiced the defense.”

Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003); see also

Strickland, 466 U.S. 668, 104 S. Ct. 2052. Deficient performance occurs when

“counsel’s representation [falls] below an objective standard of reasonableness . . .

under prevailing professional norms.” Wiggins, 539 U.S. at 521, 123 S. Ct. at

49 Case: 11-11966 Date Filed: 08/16/2012 Page: 50 of 90

2535 (internal quotation marks and citation omitted). “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690,

104 S. Ct. at 2066. Prejudice “requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial.” Id. at 687, 104 S. Ct. at 2064.

The test for prejudice is whether “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. In the context

of a challenge to a sentence of death, the question is whether “there is a reasonable

probability that [the judge and jury] would have returned with a different

sentence.” Wiggins, 539 U.S. at 536, 123 S. Ct. at 2543. “To assess that

probability, we consider the totality of the available mitigation evidence—both

that adduced at trial, and the evidence adduced in the habeas proceeding—and

reweig[h] it against the evidence in aggravation.” Porter, 130 S. Ct. at 453–54

(internal quotation marks omitted) (alteration in original). “The likelihood of a

different result must be substantial, not just conceivable.” Harrington, 131 S. Ct.

at 792.

Because “[t]he standards created by Strickland and § 2254(d) are both

50 Case: 11-11966 Date Filed: 08/16/2012 Page: 51 of 90

highly deferential,” it follows that “when the two apply in tandem, review is

doubly so.” Id. at 788 (internal quotation marks

and citations omitted). “When § 2254(d) applies, the question is not whether

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

that counsel satisfied Strickland’s deferential standard.” Id.

This discussion is divided into two parts. Part one addresses Ponticelli’s

argument that trial counsel rendered deficient performance when he investigated

Ponticelli’s competence to proceed to trial. Part two addresses Ponticelli’s

argument that trial counsel’s deficiencies during the penalty phase were

prejudicial.

1. The Supreme Court of Florida Reasonably Applied Clearly Established Federal Law When it Ruled that Ponticelli’s Trial Counsel Did Not Render Deficient Performance Before and During the Competency Hearing.

Ponticelli advances four arguments about why the Supreme Court of

Florida unreasonably applied clearly established federal law when it ruled that

Ponticelli’s trial counsel did not render deficient performance before and during

the competency hearing. First, Ponticelli argues that trial counsel should not have

waited until a month before the trial to file a motion for a psychiatric evaluation.

Second, Ponticelli argues that trial counsel had a duty to alert the court about

incidents of Ponticelli’s strange behavior. Third, Ponticelli argues that trial

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counsel had a duty to interview Ponticelli’s cellmates and family members about

his mental health. Fourth, Ponticelli argues that trial counsel had a duty to provide

Dr. Krop with material about Ponticelli’s background.

The ruling of the Supreme Court of Florida—that trial counsel did not

render deficient performance—is a reasonable application of Strickland. The

Supreme Court of Florida concluded that trial counsel’s timing of the competency

motion was reasonable because he filed that motion as soon as he noticed that

Ponticelli consistently had refused to assist in his defense. And the court

concluded that the mental health experts had adequate time to evaluate Ponticelli.

Ponticelli III, 941 So. 2d at 1102. About Ponticelli’s other allegations of

deficiencies, the court held that “Ponticelli has not presented sufficient evidence

to overcome the strong presumption that counsel’s representation was reasonable.”

Id. It cannot be said that the decision of the Supreme Court of Florida “was so

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

in existing law beyond any possibility for fairminded disagreement,” Harrington,

131 S. Ct. at 786–87, especially because “a particular decision not to investigate

must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel’s judgments,” Strickland, 466 U.S. at 691,

104 S. Ct. at 2066.

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Even if trial counsel had been deficient, it was reasonable to conclude that

Ponticelli suffered no prejudice. Although Dr. Krop testified at the evidentiary

hearing that he later believed there was sufficient evidence to conclude Ponticelli

was incompetent to proceed at the time of trial, Dr. Krop did not believe that his

pretrial evaluation, in which he concluded that Ponticelli was competent, had been

inadequate. Ponticelli III, 941 So. 2d at 1099–1100. Dr. Krop was the only expert

who testified at the postconviction hearing who also testified and examined

Ponticelli for his pretrial competency hearing. Id. at 1099–1101. And Dr. Conger

testified that Ponticelli was competent to stand trial. Id. at 1100–01.

2. The Supreme Court of Florida Reasonably Applied Clearly Established Federal Law When it Ruled that Trial Counsel’s Deficient Performance During the Penalty Phase Was Not Prejudicial, and Ponticelli’s Claim Fails Alternatively on De Novo Review.

Ponticelli argues that the conclusion of the Supreme Court of Florida—that

trial counsel was deficient during the penalty phase, but the deficiencies were not

prejudicial—is an unreasonable application of clearly established federal law for

two reasons. First, Ponticelli argues that the decision is objectively unreasonable.

Second, he argues that the decision cannot be squared with Porter and Sears.

Because the State of Florida does not contest the decision that trial counsel was

deficient, there is no need to express an opinion about that issue. But Ponticelli’s

arguments about prejudice fail. 53 Case: 11-11966 Date Filed: 08/16/2012 Page: 54 of 90

The decision of the Supreme Court of Florida to reject Ponticelli’s

Strickland claim is objectively reasonable. The court correctly identified

Strickland as the governing Supreme Court principle and reasoned that the

evidence would have had a negative effect on Ponticelli’s appeal, was cumulative

of the testimony presented at trial, and was too weak to overcome the strong

aggravators. Ponticelli III, 941 So. 2d at 1095–98. Both the Supreme Court and

this Court have consistently held that it is reasonable for a state court to conclude

that a petitioner suffers no prejudice when the evidence is either weak or

cumulative of the testimony presented at trial. See, e.g., Cullen v. Pinholster, ----

U.S. ----, 131 S. Ct. 1388, 1409–10 (2011); Wong v. Belmontes, 558 U.S. ----, 130

S. Ct. 383, 387 (2009); Rose v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011);

Rhode v. Hall, 582 F.3d 1273, 1287 (11th Cir. 2009). And both the Supreme

Court and this Court have consistently “rejected [the] prejudice argument[] where

mitigation evidence was a two-edged sword or would have opened the door to

damaging evidence.” Cummings v. Sec’y for the Dep’t of Corr., 588 F.3d 1331,

1367 (11th Cir. 2009) (internal quotation marks omitted); see also, e.g., Cullen,

131 S. Ct. at 1409–10; Belmontes, 130 S. Ct. at 387–88; Rose, 634 F.3d at

1242–46; DeYoung v. Schofield, 609 F.3d 1260, 1290–91 (11th Cir. 2010); Suggs

v. McNeil, 609 F.3d 1218, 1229–32 (11th Cir. 2010); Reed v. Sec’y, Fla. Dep’t. of

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Corr., 593 F.3d 1217, 1245 (11th Cir. 2010); Cummings, 588 F.3d at 1365–69;

Gaskin v. Sec’y, Dep’t of Corr., 494 F.3d 997, 1003–04 (11th Cir. 2007);

Robinson v. Moore, 300 F.3d 1320, 1345–52 (11th Cir. 2002); Grayson v.

Thompson, 257 F.3d 1194, 1225–30 (11th Cir. 2001). In the light of those

precedents, it cannot be said that the decision of the Supreme Court of Florida to

reject Ponticelli’s Strickland claim “was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement,” Harrington, 131 S. Ct. at 786–87.

Ponticelli argues that the conclusion of the state court that the mental health

testimony was cumulative to Dr. Mills’s testimony is objectively unreasonable.

Ponticelli contends that the Supreme Court of Florida, on direct appeal, rejected

Dr. Mills’s testimony because there was no evidence about Ponticelli’s cocaine

use on the night of the murders. He argues that a jury would have been more

likely to accept Dr. Mills’s conclusions based on the new evidence that he used

cocaine on the night of the murders.

Ponticelli’s argument fails for two reasons. First, the state court rejected Dr.

Mills’s conclusions, not only because of the lack of evidence related to drug use,

but because Ponticelli’s actions on the night of the murder strongly suggested that

he was in control of his actions. Second, Dr. Mills testified at trial that the

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statutory mental health mitigators should apply regardless of whether Ponticelli

used cocaine on the night of the murders. Thus, it was reasonable for the state

court to conclude that any new mental health testimony that the two statutory

mental health mitigators should apply was cumulative to Dr. Mills’s testimony.

Ponticelli argues that the conclusion of the Supreme Court of Florida that

his mitigation evidence of drug use and mental health problems would have had a

negative effect is objectively unreasonable, but that argument fails. Drug abuse

“has little mitigating value and can do as much or more harm than good in the eyes

of the jury.” Crawford v. Head, 311 F.3d 1288, 1321 (11th Cir. 2002); see also,

e.g., Suggs, 609 F.3d at 1232 (observing that “evidence of historical drug and

alcohol use” is “unfavorable”); Grayson, 257 F.3d at 1227 (“[E]mphasizing

[petitioner’s] alcoholic youth and intoxication may also have been damaging to

[petitioner] in the eyes of the jury.”). The Supreme Court of Florida reasonably

concluded that evidence of Ponticelli’s cocaine abuse would have done more harm

than good in the eyes of the jury because “[i]nstead of being a young man who

naively experimented with drugs for a short period of time,” the jury would have

heard that Ponticelli had “escaped the ill effects of drugs for a substantial period of

time in Florida and then returned to a habit he knew was evil.” Ponticelli III, 941

So. 2d at 1095. Further, Ponticelli’s mental health evidence “would have invited

56 Case: 11-11966 Date Filed: 08/16/2012 Page: 57 of 90

the strongest possible evidence in rebuttal.” Belmontes, 130 S. Ct. at 389. That is,

Dr. Conger would have testified that Ponticelli had the profile of a sociopath,

which is “more harmful . . . than mitigating,” Reed, 593 F.3d at 1248.

Ponticelli advances three theories to support his contention that the Supreme

Court of Florida unreasonably applied Strickland in the light of Porter and Sears.

First, Ponticelli argues that the state court did not consider his mental health

evidence because it “rejected the mental health mitigation presented in

postconviction on the basis that the lower court found the State expert’s testimony

to be the most credible.” Second, Ponticelli argues that the state court

unreasonably discounted nonstatutory mitigation evidence. Third, Ponticelli

argues that the state court erred in its analysis of prejudice because it considered

the evidence in mitigation “in a piecemeal fashion against the aggravating

circumstances.” Ponticelli’s arguments fail.

Porter decided that it was unreasonable for a state court to conclude that

counsel’s failure to present powerful mitigation evidence about his client’s heroic

military service and mental health evidence of brain damage was not prejudicial.

Porter, 130 S. Ct. at 453–55. A Florida jury convicted Porter of two counts of first

degree murder after he killed his ex-girlfriend and her boyfriend. Id. at 448. The

jury at Porter’s trial recommended a sentence of death for both murders, but the

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trial court imposed a sentence of death for the murder of only the ex-girlfriend.

Id. at 449. Porter filed a petition for postconviction relief in state court on the

ground that his penalty-phase counsel had failed to investigate and present

mitigating evidence. Id. The trial court conducted an evidentiary hearing, and

Porter presented extensive mitigating evidence about his “(1) . . . heroic military

service in two of the most critical—and horrific—battles of the Korean War, (2) . .

. struggles to regain normality upon his return from war, (3) . . . childhood history

of physical abuse, and (4) . . . brain abnormality, difficulty reading and writing,

and limited schooling.” Id. at 454.

With regard to the mental health evidence, Porter presented an expert in

neuropsychology who had examined Porter and administered psychological tests

to him. Id. at 451. Porter’s neuropsychologist testified that Porter “suffered from

brain damage that could manifest [itself] in impulsive, violent behavior,” and that,

at the time of the murders, Porter was “substantially impaired in his ability to

conform his conduct to the law and suffered from an extreme mental or emotional

disturbance.” Id. Porter’s neuropsychologist also testified that Porter “had

substantial difficulties with reading, writing, and memory, and that these cognitive

defects were present when he was evaluated for competency to stand trial.” Id.

Although the experts that the state presented “reached different conclusions

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regarding the statutory mitigators,” each of the state experts “testified that he

could not diagnose Porter or rule out a brain abnormality.” Id. (footnote omitted).

With regard to the military service evidence, Porter proved that he enlisted

in the United States Army at age 17 and fought in the Korean War. While serving

his country in combat, Porter was shot in the leg. Id. at 449–50. After receiving

“little or no” food or sleep for five days, he was forced to “engage[] in a fierce

hand-to-hand fight with the Chinese.” Id. at 450 (internal quotation marks

omitted). After another “very trying, horrifying” battle, Porter “individually

received two Purple Hearts and the Combat Infantryman Badge, along with other

decorations.” Id. (internal quotation marks omitted). Porter went absent without

leave on two occasions while in Korea, but his company commander testified that

“this was not uncommon, as soldiers sometimes became disoriented and separated

from the unit.” Id. Porter was eventually honorably discharged, and, “[a]fter his

discharge, he suffered dreadful nightmares and would attempt to climb his

bedroom walls with knives at night.” Id.

The trial court ruled that Porter had not been prejudiced by the failure to

introduce any of the mental health or military service mitigation evidence, and the

Supreme Court of Florida affirmed. Id. at 451. The Supreme Court of Florida

explicitly refused to consider Porter’s proposed mental health evidence for

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statutory mitigation purposes because the state expert disagreed with the

conclusions of Porter’s expert and the trial court had accepted the conclusions of

the state expert. Porter v. State, 788 So. 2d 917, 923 (2001). And the Supreme

Court of Florida agreed with the trial court that “Porter’s periods of being AWOL

would have reduced the impact of Porter’s military service to inconsequential

proportions.” Porter, 130 S. Ct. at 451 (internal quotation marks omitted). It

“held the trial court was correct to find the additional nonstatutory mitigation to be

lacking in weight because of the specific facts presented.” Id.

The Supreme Court of the United States ruled that the Supreme Court of

Florida had unreasonably applied clearly established federal law because it “either

did not consider or unreasonably discounted the mitigation evidence [that Porter]

adduced in the postconviction hearing.” Id. at 454. The Court ruled that it was

unreasonable for the Supreme Court of Florida to “discount entirely” the impact

that the testimony of Porter’s mental health expert might have had on the

sentencing judge and jury. Id. at 455. The Court also held that the state court

unreasonably considered the evidence of Porter’s military history in a way that

was contrary to “a long tradition of according leniency to veterans in recognition

of their service, especially for those who fought on the front lines as Porter did.”

Id. The Court reasoned that, “the relevance of Porter’s extensive combat

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experience is not only that he served honorably under extreme hardship and

gruesome conditions, but also that the jury might find mitigating the intense stress

and mental and emotional toll that combat took on Porter.” Id. In other words,

“[t]he evidence that he was AWOL is consistent with this theory of mitigation and

does not impeach or diminish the evidence of his service.” Id.

Porter does not compel the conclusion that the Supreme Court of Florida, in

this appeal, failed to consider the mental health evidence for either statutory or

non-statutory mitigation purposes. To be sure, the Supreme Court of Florida in

Ponticelli’s appeal, as in Porter, stated that it would “defer to the trial court’s

finding of fact when faced with conflicting expert testimony,” Ponticelli III, 941

So. 2d at 1098, but unlike what occurred in Porter, the Supreme Court of Florida

also considered the effect of the conflicting testimony and concluded that the

mental health evidence was both too weak to overcome the aggravators and

cumulative of that heard by the jury during the trial. Id. In other words, the

Supreme Court of Florida in this appeal, unlike in Porter, did not “discount

entirely” Ponticelli’s mitigation evidence. Cf. Porter, 130 S. Ct. at 445. That the

Supreme Court of Florida “determined what impact, if any, that mitigating

evidence . . . would have had on the trial court when weighed against the

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aggravating evidence” distinguishes this appeal from Porter. Cf. Sochor v. Sec’y

Dep’t. of Corr., 685 F.3d 1016, 1030 (11th Cir. 2012).

Nor does Porter compel the conclusion that state courts may not consider

harmful aspects of proposed mitigation evidence. Porter is an application of

Strickland. Porter does not alter the ordinary rule that courts “must consider the

totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695, 104

S. Ct. at 2069.

Ponticelli’s reliance on Sears fares no better for three reasons. First, unlike

the state court decision involved in this appeal, the decision in Sears was not

subject to deferential review under section 2254(d) because the defendant in Sears

had not filed a federal petition for a writ of habeas corpus. The defendant instead

had petitioned the Supreme Court of the United States to review the decision of

the Supreme Court of Georgia on state collateral review. 130 S. Ct at 3261 & n.1.

Second, unlike this appeal, the state court in Sears had expressly refused to

consider the test for prejudice under Strickland because it had concluded that the

task was “impossible.” Id. at 3264–65 & n.9. Third, the Supreme Court in Sears

did not hold that double-edged sword evidence, like Sears’s life of crime, was

necessarily evidence in mitigation. Instead, the Court reasoned that “the fact that

Sears’ brother . . . introduced Sears to a life of crime . . . would have been

62 Case: 11-11966 Date Filed: 08/16/2012 Page: 63 of 90

consistent with a mitigation theory portraying Sears as an individual with

diminished judgment and reasoning skills . . . .” Id. at 3263. That Sears’s brother

introduced him to a life of crime would have also been consistent with the

testimony of Sears’s experts that he performed at or below the bottom first

percentile—the lowest first percent—in several measures of cognitive functioning

and reasoning. Id. at 3261. Because the Court considered Sears’s claim de novo,

it expressed no opinion about whether state courts apply clearly established law

unreasonably when they consider how double-edged sword evidence could

undermine a theory of mitigation either generally or in a specific decision.

Nor do Sears and Porter compel the conclusion that the Supreme Court of

Florida applied the prejudice test in a manner that was contrary to clearly

established federal law. Ponticelli’s argument that the state court failed to

consider the totality of the available mitigation evidence and reweigh it against the

evidence in aggravation fails. That the court organized its discussion of the

evidence in a piecemeal fashion is of no moment. As explained above, “[t]he

existence of item-by-item analysis . . . is not inconsistent with a cumulative

analysis.” Allen, 611 F.3d at 749. Ponticelli cannot overcome the presumption

that the Supreme Court of Florida assessed prejudice cumulatively. See Visciotti,

537 U.S. at 24, 123 S. Ct. at 360; Greene, 644 F.3d at 1159–60.

63 Case: 11-11966 Date Filed: 08/16/2012 Page: 64 of 90

“Even if [Ponticelli’s] ineffective-assistance-of-counsel claim were eligible

for de novo review, it would still fail.” Knowles v. Mirzayance, 556 U.S. 111,

123, 129 S. Ct. 1411, 1420 (2009). “The Supreme Court has made clear that we

are entitled to affirm the denial of habeas relief in this manner: ‘a habeas petitioner

will not be entitled to a writ of habeas corpus if his or her claim is rejected on de

novo review.’” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1291 (11th

Cir. 2012) (quoting Berghuis v. Thompkins, ---U.S.---, 130 S. Ct. 2250, 2265

(2010)); see also Sochor, no. 10-14944, slip op. at 32. “[W]e have employed this

approach even when it was clear that the deference afforded by section 2254(d)

applied.” Reese, 675 F.3d at 1291; see, e.g., Allen, 611 F.3d at 753.

Ponticelli cannot establish that he suffered prejudice because there is not a

“reasonable probability” that the jury would have not recommended a sentence of

death absent any errors. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “To

assess that probability, we consider the totality of the available mitigation

evidence—both that adduced at trial, and the evidence adduced in the habeas

proceeding—and reweig[h] it against the evidence in aggravation,” Porter, 130 S.

Ct. at 453–54 (internal quotation marks omitted) (alteration in original), and the

Supreme Court has instructed that we should “turn first to the aggravating and

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mitigating evidence that the sentencing jury considered.” Cullen, 131 S. Ct. at

1408.

As in Cullen, “[t]he State presented extensive aggravating evidence.” Id.

The state proved that three statutory aggravators applied to Nick Grandinetti’s

death: Ponticelli committed the murder for pecuniary gain, Fla. Stat. §

921.141(5)(f); Ponticelli committed the murder in a “cold, calculated, and

premeditated manner without any pretense of moral or legal justification,” id. §

921.141(5)(i); and the murder was “especially heinous, atrocious, [and] cruel,” id.

§ 921.141(5)(h). In Florida, “the heinous, atrocious, or cruel [and] the cold,

calculated, and premeditated aggravators . . . are two of the most serious

aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.

2d 90, 95 (Fla. 1999). “[T]he Supreme Court has expressly cautioned against

comparing aggravating circumstances based on their sheer number, but rather, has

suggested that we focus on their weight.” Boyd v. Allen, 592 F.3d 1274, 1302 n.7

(11th Cir. 2010).

The evidence proffered at the evidentiary hearing does not undermine the

application of these aggravators. Although trial counsel testified that he would not

have conceded the existence of the cold, calculated, and premeditated aggravator,

Ponticelli’s own expert, Dr. Herkov, testified that, even if Ponticelli had suffered

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an extreme and emotional disturbance at the time of the murders, Ponticelli could

have formed the necessary intent for either of the statutory aggravators to apply.

Herkov also conceded that the opportunity for pecuniary gain could have

motivated Ponticelli to kill.

Ponticelli presented a theory of cocaine psychosis as mitigating evidence

during the penalty phase of his trial. The jury heard about Ponticelli’s severe

addiction to cocaine through the testimony of both Turner and Ponticelli’s father.

Meade and Leonard testified that Ponticelli was a reliable person and a good

friend when he did not abuse cocaine. Dr. Mills also testified that the two

statutory mental health mitigators should apply regardless of whether Ponticelli

used cocaine on the night of the murders. Despite this evidence, the court found

only two statutory mitigators—Ponticelli had no significant history of previous

criminal activity, Fla. Stat. § 921.141(6)(a), and Ponticelli was 20 years old at the

time of the offense, id. § 921.141(6)(g). The court rejected the mental health

statutory mitigators, see id. § 921.141(6)(b), (f), and found no nonstatutory

mitigators.

Ponticelli relied on the same mitigation theory during collateral review, and

it is unlikely that a jury or sentencing court would have found his improved

version of a cocaine psychosis more persuasive the second time around for two

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reasons. First, the expert testimony was cumulative to Dr. Mills’s testimony, and

it is “highly improbable that a jury, which had just rejected testimony about

[Ponticelli’s] mental condition when the State bore the burden of proof, would

have reached a different result” when Ponticelli carried the burden of proof at the

evidentiary hearing. Knowles, 556 U.S. at 128, 129 S. Ct. at 1422. Second, the

trial court refused to apply one of the mental health mitigators, in part, because

Ponticelli’s behavior on the night of the murder suggested that he was in control of

his actions. None of the evidence presented during the evidentiary hearing

undermined that conclusion.

If anything, substantial evidence unearthed during the evidentiary hearing

contradicted Ponticelli’s psychosis theory. Each expert testified that Ponticelli’s

behavior was “goal oriented.” At trial, Ponticelli’s trial counsel argued that

Ponticelli was unstable because he had asked Dotson and his friends for help even

though he had met them only four hours earlier, but at the evidentiary hearing,

Ponticelli presented evidence that he had met Dotson and his friends the day

before the murders and had even smoked cocaine with them. A jury would have

been less likely to conclude that Ponticelli was unstable in the light of this

evidence.

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The presentation of Ponticelli’s other mitigation evidence—that Ponticelli

was a poly-substance abuser with brain damage and that Porcillo believed

Ponticelli was high on the night of the murders—was fraught with peril for at least

three reasons. First, in response to the evidence about brain damage, the state

could have elicited testimony from Dr. Conger that Ponticelli had the profile of a

sociopath. As we have held consistently, “[t]his evidence is potentially

aggravating as it suggests that [Ponticelli] has antisocial personality disorder,

which is a trait most jurors tend to look disfavorably upon, that is not mitigating

but damaging[.]” Suggs, 609 F.3d at 1231 (internal quotation marks and citation

omitted). Second, Porcillo’s testimony “would have come at a steep price.” Id.

The state could have elicited testimony that Ponticelli had a history of drug abuse,

but had quit on one occasion for an extended period of time, only to “return[] to a

habit he knew was evil.” Ponticelli III, 941 So. 2d at 1095. This evidence, alone

and in combination with the evidence that Ponticelli smoked cocaine before he

murdered the Grandinetti brothers, likely could have caused some jurors to vote in

favor of death. See Suggs, 609 F.3d at 1231. Third, although Ponticelli’s brain

damage is relevant to the extent that it suggests that he has some cognitive

deficiencies and is less morally culpable for his actions, Ponticelli’s behavior

before, during, and after the murders suggests that he was in control of his actions.

68 Case: 11-11966 Date Filed: 08/16/2012 Page: 69 of 90

The evidence of Ponticelli’s premeditation was powerful. Before he

committed the murders, Ponticelli borrowed a gun; told his friends that he planned

to kill two people for cocaine and money; and created and executed a plan to lure

the victims from their home. Ponticelli drove the victims to back roads to avoid

detection, shot them both in the head, and when he heard Nick moan, battered

Nick with the butt of his gun. After the murder, Ponticelli took cocaine and

money from the bodies; returned the gun and told his friend to dispose of the

weapon; abandoned the car because of a flat tire and called a taxi cab; cleaned the

blood off his clothes and later burned those clothes; asked for an alibi; bragged to

several friends that he had killed two men for cocaine and money; asked Brown

and Burgess to drive around the block a few times after the murder because he was

afraid of the police; planned to leave the country to evade authorities; told Dotson

he planned to fix up a “getaway car”; and asked Freeman to help him dispose of

the evidence, and even drew a map with the location of that evidence.

All that remains of Ponticelli’s mitigation evidence is that he had some

difficulties at birth, that he was socially-awkward, that he was adopted by foster

parents, and that neighborhood kids ridiculed his weight and glasses. In other

words, Ponticelli experienced a childhood like that of thousands of children in

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America who do not grow up to commit premeditated double murders. This

evidence of mitigation is of negligible weight.

Ponticelli is not entitled to relief. A reweighing of the evidence leads to the

conclusion that “[t]here is no reasonable probability that the additional evidence

[Ponticelli] presented in his state habeas proceedings would have changed the

jury’s verdict.” Cullen, 131 S. Ct. at 1409. Even if Ponticelli were entitled to de

novo review of his Strickland claim, he would not be entitled to the writ of habeas

corpus.

IV. CONCLUSION

The denial of Ponticelli’s petition for a writ of habeas corpus is

AFFIRMED.

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EDMONDSON, Circuit Judge, concurring in the result:

I reach the same result as Judge Pryor has done: affirm the district court’s

decision to deny habeas relief.

In my view, given the deferential standard commanded by AEDPA, no relief

can be correctly given by us in this case. The pertinent state decision reasonably

determined the facts and neither contradicted nor unreasonably applied the then

clearly established federal law, in the light of the actual holdings made by the

decisions of the Supreme Court of the United States—even considering later

decisions (such as, the decision for prejudice in the Porter case). I believe the lack

of prejudice, right through, is a particularly strong point for Florida—given the

evidence in this case and the deference required by AEDPA.

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MARTIN, Circuit Judge, concurring in the judgment in part and dissenting in part:

I would reverse the District Court’s denial of Mr. Ponticelli’s claim that he

received ineffective assistance of counsel during the sentencing phase of his

capital trial. In my judgment, the Florida Supreme Court’s decision rejecting this

claim was an unreasonable application of the prejudice analysis required by

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Once the state

court unreasonably applies Strickland, its analysis is not entitled to deference

under 28 U.S.C. § 2254(d). Having conducted a de novo review, I conclude that

Mr. Ponticelli has demonstrated “there is a reasonable probability that, absent

[counsel’s deficient performance], the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not warrant death.”

Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

Judge Pryor’s opinion accepts the Florida Supreme Court’s holding that Mr.

Ponticelli’s trial counsel’s investigation for and presentation of the penalty phase

of the trial were deficient. And it bears noting that the state court record fully and

clearly supports the conclusion that counsel’s performance was constitutionally

deficient. As the Florida Supreme Court explained:

[C]ounsel’s penalty phase investigation consisted of interviewing Ponticelli’s parents and asking Dr. Mills to testify. Counsel apparently failed to contact the persons suggested by Ponticelli’s parents, made no effort to obtain any of Ponticelli’s school or medical records, and did not 72 Case: 11-11966 Date Filed: 08/16/2012 Page: 73 of 90

request that Dr. Mills evaluate Ponticelli again before testifying at the penalty phase. While we recognize that a mental health evaluation is not required in every case, the record shows that Dr. Mills’[s] penalty phase testimony was based on the fifteen-minute evaluation he conducted on Ponticelli before the competency hearing and his review of the record. ...

Counsel’s stated reason for not investigating this potential mitigation was that he did not know how to conduct a penalty phase. Inexperience is not an excuse for deficient performance. . . . Defense counsel’s failure to conduct an adequate investigation resulted in a deficient penalty phase presentation. He presented only one witness at the penalty phase and asked this witness to base his testimony on a hypothetical that was not entirely accurate. We agree with Ponticelli that counsel’s penalty phase investigation and presentation were deficient.

Ponticelli v. State, 941 So. 2d at 1073, 1095–96 (Fla. 2006) (Ponticelli III)

(footnotes and citations omitted). This conclusion was compelled by what was

then, and continues to be, clearly established federal law. See Williams v. Taylor,

529 U.S. 362, 368–70, 395–96, 120 S. Ct. 1495, 1500–01, 1514–15 (2000)

(finding counsel performed deficiently by failing to conduct constitutionally

adequate penalty phase investigation in 1986 trial); see also Porter v. McCollum,

___ U.S. ___, ___, 130 S. Ct. 447, 448–49, 452–53 (2009) (same as to 1988 trial);

Rompilla v. Beard, 545 U.S. 374, 381–90, 129 S. Ct. 2456, 2462–67 (2005)

(same).

Proceeding from the finding regarding trial counsel’s deficient performance,

Strickland requires an analysis of whether Mr. Ponticelli was prejudiced by this 73 Case: 11-11966 Date Filed: 08/16/2012 Page: 74 of 90

deficiency. And on the issue of whether the Florida Supreme Court’s adjudication

of Strickland’s prejudice prong involved an unreasonable application of federal

law, I have arrived at a conclusion different from that of my colleagues. My

conclusion is that the Florida Supreme Court unreasonably applied Strickland

within the meaning of § 2254(d)(1). The United States Supreme Court’s decisions

in Williams and Porter compel me to this conclusion in three different ways.

First, the Florida Supreme Court’s prejudice analysis under Strickland was

an unreasonable application of clearly established federal law for the same reason

articulated by the Supreme Court in Williams: the state court “failed to accord

appropriate weight to the [whole] body of mitigating evidence [that would have

been] available to trial counsel” in its reweighing analysis. 529 U.S. at 398, 120 S.

Ct. at 1516. More specifically, in Williams the Supreme Court found the Virginia

Supreme Court’s “prejudice determination was unreasonable insofar as it failed to

evaluate the totality of the available mitigation evidence—both that adduced at

trial, and the evidence adduced in the habeas proceeding in reweighing it against

the evidence in aggravation.” Id. at 397–98, 120 S. Ct. at 1515 (citing Clemons v.

Mississippi, 494 U.S. 738, 751–52, 110 S. Ct. 1441, 1450 (1990)). The Supreme

Court said the error was “apparent in [the Virginia Supreme Court’s] consideration

of the additional mitigation evidence developed in the postconviction proceeding.”

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Id. at 398, 120 S. Ct. at 1515. Although the Virginia Supreme Court correctly

considered the new evidence adduced in the state postconviction hearing and the

strength of the prosecution’s evidence of aggravation, it failed to consider the

mitigation from the original penalty phase and reweigh it together with the

postconviction evidence. Id. This being the case, the United States Supreme

Court concluded that the Virginia Supreme Court unreasonably applied

Strickland’s prejudice analysis when it “failed to accord appropriate weight to the

[whole] body of mitigating evidence [that would have been] available to trial

counsel.” Id.

The Florida Supreme Court committed the same error in Mr. Ponticelli’s

case. The same as in Williams, the state court here did not evaluate the totality of

Mr. Ponticelli’s mitigating evidence insofar as its prejudice analysis did not even

mention the statutory mitigation that was found to exist at the original trial. See

Ponticelli III, 941 So. 2d at 1092–99. During the penalty phase of Mr. Ponticelli’s

jury trial, the trial court found two statutory mitigating circumstances: (1) he has

no significant history of prior criminal activity, see Fla. Stat. § 921.141(6)(a); and

(2) he was twenty years old at the time of the offense, see id. § 921.141(6)(g). The

Florida Legislature’s affirmative inclusion of age and lack of criminal history

among its eight statutory mitigating circumstances, see id. § 921.141(6)(a)–(h),

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together with the sentencing court’s finding that these mitigators applied, establish

that these aspects of Mr. Ponticelli’s background and character are mitigating as a

matter of state law. Even if that were not the case, the trial court’s findings

regarding Mr. Ponticelli’s age and lack of criminal history would still be

constitutionally relevant mitigating circumstances which, either alone or together,

could serve “as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S.

586, 604, 98 S. Ct. 2954, 2965 (1978) (plurality opinion); see also Jackson v.

State, 599 So. 2d 103, 110 (Fla. 1992) (recognizing defendant’s lack of significant

history of prior criminal activity, coupled with other mitigation, may clearly serve

as a reasonable basis for a jury’s life recommendation).1

The second way in which I believe there was an unreasonable application of

Strickland is because of the piecemeal manner in which the Florida Supreme Court

weighed Mr. Ponticelli’s postconviction mitigation evidence. This is

demonstrated by the state court’s opinion which plainly measured the mitigating

1 It is black letter Constitutional law that states must allow judges and juries in capital cases to hear, consider, and give full effect to all relevant mitigating evidence. See Roper v. Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183, 1194 (2005) (defendant must be afforded “wide latitude” to present mitigating evidence); see also Abdul-Kabir v. Quarterman, 550 U.S. 233, 264, 127 S. Ct. 1654, 1675 (2007) (statutory requirements that jury consider only particular kinds of mitigating evidence are unconstitutional); Brewer v. Quarterman, 550 U.S. 286, 289, 127 S. Ct. 1706, 1710 (2007) (sentencer may not be precluded from “giving meaningful effect to mitigating evidence”); Lockett, 438 U.S. at 604, 98 S. Ct. at 2964–65 (plurality opinion) (sentencer cannot be precluded from considering character or circumstances of defendant’s record). 76 Case: 11-11966 Date Filed: 08/16/2012 Page: 77 of 90

evidence presented during the postconviction hearing against the aggravating

evidence in a fragmented fashion. See Ponticelli III, 941 So. 2d at 1096–99. The

Florida Supreme Court’s prejudice analysis grouped the postconviction evidence

into two categories: (1) “lay witness testimony,” id. at 1097; and (2) “mental

health testimony,” id. at 1098. The court then weighed each category of evidence

separately against the evidence in aggravation. See id. at 1097 (“The lay witness

testimony presented at the evidentiary hearing is certainly not sufficient to

establish mitigators that outweigh these aggravators.”); id. at 1098 (“[N]either Dr.

Crown’s nor Dr. Herkov’s testimony was sufficient to establish mental health

mitigation which would, in all reasonable probability, have outweighed the

significant aggravators in this case.”).

What the Florida Supreme Court was required to do under Williams was

consider the lay witness and mental health evidence together, along with the

original evidence presented during the penalty phase of the jury trial, then reweigh

all of it against all the evidence in aggravation. Again, to properly evaluate

Strickland prejudice, reviewing courts must “consider ‘the totality of the available

mitigation evidence—both that adduced at trial, and the evidence adduced in the

habeas proceeding’—and ‘reweig[h] it against the evidence in aggravation.’”

Porter, 130 S. Ct. at 453–54 (quoting Williams, 529 U.S. at 397–98, 120 S. Ct. at

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1515) (emphasis added). By “totality of the available mitigation evidence,” the

Supreme Court meant the evidence as a whole. See Williams, 529 U.S. at 398–99,

120 S. Ct. at 1516 (“In our judgment, the state trial judge was correct . . . in his

conclusion that the entire postconviction record, viewed as a whole and

cumulative of mitigation evidence presented originally, raised a reasonable

probability that the result of the sentencing proceeding would have been different .

. . .” (quotation marks omitted) (emphasis added)). Thus, by using a truncated

reweighing analysis even for the mitigating evidence it did consider, the state

court unreasonably applied clearly established federal law. See id. at 397–98, 120

S. Ct. at 1515.

Third, the Florida Supreme Court unreasonably applied Strickland when it

repeated the same errors in Mr. Ponticelli’s case that the Supreme Court

condemned in Porter. The Supreme Court explained its reasoning as follows:

The Florida Supreme Court's decision that Porter was not prejudiced by his counsel’s failure to conduct a thorough—or even cursory—investigation is unreasonable. The Florida Supreme Court either did not consider or unreasonably discounted the mitigation evidence adduced in the postconviction hearing. Under Florida law, mental health evidence that does not rise to the level of establishing a statutory mitigating circumstance may nonetheless be considered by the sentencing judge and jury as mitigating. Indeed, the Constitution requires that “the sentencer in capital cases must be permitted to consider any relevant mitigating factor.” Yet neither the postconviction trial court nor the Florida Supreme Court gave any consideration for the purpose of nonstatutory mitigation to [the defense expert’s] testimony 78 Case: 11-11966 Date Filed: 08/16/2012 Page: 79 of 90

regarding the existence of a brain abnormality and cognitive defects. While the State’s experts identified perceived problems with the tests that [the defense expert] used and the conclusions that he drew from them, it was not reasonable to discount entirely the effect that his testimony might have had on the jury or the sentencing judge.

130 S. Ct. at 454–55 (emphasis added) (footnotes and citations omitted). Here,

like in Porter, the Florida Supreme Court either “did not consider or unreasonably

discounted” Mr. Ponticelli’s constitutionally relevant mitigating evidence. Id. at

454. This is true for both the statutory and the non-statutory mitigation Mr.

Ponticelli presented during the postconviction hearing, including: his brain

damage; cognitive deficits; drug use at the time of the offense; and statutory

mental health mitigating circumstances. See Ponticelli III, 941 So. 2d at 1097–99.

By refusing to conclude the Florida Supreme Court’s prejudice analysis was not an

unreasonable application of Strickland, this Court repeats the same error it

committed in Porter v. Attorney General, 552 F.3d 1260, 1272–75 (11th Cir.

2008), when it did not find anything unreasonable about the Florida Supreme

Court’s decision in Porter v. State, 788 So. 2d 917 (Fla. 2001).

Because the Florida Supreme Court clearly failed to put all of the mitigating

evidence from the jury trial penalty phase into the “hopper” with all the mitigation

that came to light after Mr. Ponticelli’s trial and then reweigh it against the

evidence in aggravation, it unreasonably applied Strickland’s prejudice analysis.

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Thus, its adjudication of Mr. Ponticelli’s claim of Strickland prejudice at the

penalty phase is not entitled to any deference under AEDPA. See Panetti v.

Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 2858 (2007) (“When a state

court’s adjudication of a claim is dependent on an antecedent unreasonable

application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A

federal court must then resolve the claim without the deference AEDPA otherwise

requires.”).

In light of the state court’s unreasonable application of federal law, Mr.

Ponticelli is entitled to de novo review of the record with respect to prejudice

under Strickland. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1266 (11th

Cir. 2009). On this issue, I do not agree with Judge Pryor’s conclusion that the

evidence presented during the state evidentiary hearing was cumulative to the

scant evidence that was presented at trial. My review of the record tells me that

the judge and jury during the sentencing of Mr. Ponticelli’s trial heard very little

evidence supporting his trial counsel’s efforts to humanize him or that would

allow them to more accurately gauge his moral culpability. Thus, the picture that

the judge and the jury would have seen had counsel not been deficient is very

different.

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During the penalty phase, Mr. Ponticelli’s trial counsel presented only the

testimony of Dr. Mills, given in the form of a hypothetical. Dr. Mills testified that

(1) Mr. Ponticelli’s behavior and the changes in his personality shortly before,

during, and after the offense were consistent with cocaine addiction; (2) Mr.

Ponticelli was suffering from an extreme mental or emotional disturbance because

of his repeated cocaine use around the time of the offense, see Fla. Stat. §

921.141(6)(b); and (3) Mr. Ponticelli’s capacity to appreciate the criminality of his

conduct was substantially impaired, see id. § 921.141(6)(f).

The force of this testimony was significantly limited, however, because of

the cursory nature of Dr. Mills’s evaluation. Dr. Mills only interviewed Mr.

Ponticelli one time for fifteen minutes, and that was before trial and for the limited

purpose of a court-ordered competency and sanity evaluation. Trial counsel did

not request that Dr. Mills evaluate Mr. Ponticelli again before his penalty phase

testimony. Indeed, the Florida Supreme Court emphasized these facts in support

of its conclusion that trial counsel was deficient. See Ponticelli III, 941 So. 2d

1095–96 & n.24 (citing Arbelaez v. State, 898 So. 2d 25, 34–35 (Fla. 2005), for

the proposition that trial counsel should not have considered Dr. Mills’s fifteen-

minute interview “a reliable substitute for a thorough mitigation investigation”).

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Further, while trial counsel attempted to integrate some of the evidence

presented during the trial into the hypothetical posed to Dr. Mills, because of

counsel’s constitutionally inadequate investigation into Mr. Ponticelli’s

background, Dr. Mills testified to a hypothetical that was not factually accurate.

As the state court noted, “[trial counsel] asked Dr. Mills to assume that Ponticelli

had no history of cocaine abuse until Ponticelli returned from his visit to New

York in October 1987. [But] the unrefuted testimony at the evidentiary hearing

revealed that Ponticelli was heavily abusing cocaine by the age of sixteen.”

Ponticelli III, 941 So. 2d at 1096 n.25. The hypothetical was undoubtably wrong

about the length and severity of Mr. Ponticelli’s drug addiction. Of more pressing

concern, however, is that the hypothetical did not reference Mr. Ponticelli’s drug

use as witnessed on the day of the offense by Tim Keesee, and as also recognized

that day by Frank Porcillo. As a result, during penalty phase closing arguments,

the prosecutor told the jury that while Mr. Ponticelli used “a lot” of cocaine, “there

was no evidence at all during the trial that he had used cocaine [the day of the

offense]; none whatsoever.”2

2 There was no evidence of Mr. Ponticelli’s drug use at the time of the offense in part due to the state’s suppression of this evidence. While I agree that Mr. Ponticelli has not demonstrated a Brady or Giglio violation with respect to his convictions, I arrive at my conclusion by a different route than Judge Pryor. In my view, Mr. Ponticelli’s Brady and Giglio claims should be denied with regard to his convictions not because he has failed to establish that evidence of his intoxication was suppressed, but because he has not demonstrated prejudice as to 82 Case: 11-11966 Date Filed: 08/16/2012 Page: 83 of 90

At the conclusion of the sentencing phase of the jury trial, “the trial court

did not find either statutory mental health mitigator[s] because it found that, given

the lack of evidence supporting Ponticelli’s cocaine use within twenty-four hours

of the crime, [Dr.] Mills[’s] testimony was speculative.” Ponticelli III, 941 So. 2d

at 1093. The lack of evidence of Mr. Ponticelli’s cocaine use is not surprising in

his convictions. Regardless of the state trial court’s credibility findings as to the defense counsel’s and the prosecutor’s conflicting testimony about the prosecutor’s notes, Tim Keesee testified in the postconviction hearing that his trial testimony was false; that he had seen Mr. Ponticelli use cocaine at the Grandinettis’ trailer on the evening of the homicides; and that he told the state’s investigator Bruce Munster this. See Ponticelli III, 941 So.2d at 1089. Detective Munster corroborated Keesee’s testimony on this point during his postconviction testimony. Thus, regardless of the prosecutor’s notes and testimony, ignoring this unrebutted evidence that Detective Munster, whose knowledge is charged to the prosecution, knew that Keesee’s testimony was false renders the state’s factual determination unreasonable. See id. at 1090. While I conclude that Mr. Ponticelli was not prejudiced by this suppression of evidence on the question of his guilt or innocence, I cannot say the same with regard to the sentence of death. For me, the materiality of the Brady and Giglio violations with respect to Mr. Ponticelli’s death sentence is plain because the evidence relates to his drug use on the day of the offense. This is consistent with what the Supreme Court has recognized: this kind of evidence may be material to a capital jury’s penalty phase deliberations. See Cone v. Bell, 556 U.S. 449, 470–75, 129 S. Ct. 1769, 1783–86 (2009). Here, Mr. Ponticelli’s drug use on the day of the offense was disputed by the state during the penalty phase. Although the defense attempted to elicit testimony and argue that Mr. Ponticelli’s paranoid behavior demonstrated he was impaired by drug use near the time of the offense, the state implored the jury to infer that Mr. Ponticelli’s behavior was attributable to his criminal activity. Indeed, the materiality of this evidence is further established by the Florida Supreme Court’s direct appeal opinion affirming the trial court’s determination that Mr. Ponticelli failed to prove the existence of statutory mitigating circumstances in part because there was no evidence presented at Mr. Ponticelli’s jury trial that he was using cocaine on the evening of the murders. See Ponticelli v. State, 593 So. 2d 483, 490–491 (Fla. 1991) (Ponticelli I), vacated and remanded sub nom. Ponticelli v. Florida, 506 U.S. 802, 113 S. Ct. 32 (1992) (remanding for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926 (1992)), remanded to Ponticelli v. State, 618 So. 2d 154 (Fla. 1993) (Ponticelli II) (affirming convictions and sentence). 83 Case: 11-11966 Date Filed: 08/16/2012 Page: 84 of 90

that Dr. Mills had not interviewed Mr. Ponticelli for the purpose of investigating

or developing potential mitigation and neither had Dr. Mills been exposed to

evidence such as Tim Keesee’s and Frank Porcillo’s eyewitness accounts of,

respectively, Ponticelli’s drug use and intoxication around the time of the offense.

Given the unsubstantiated and incomplete nature of Dr. Mills’s hypothetical

testimony, neither the jury nor the judge had a basis for finding the statutory

mental state mitigating circumstances.

By contrast, the postconviction evidence painted a starkly different portrait

of Mr. Ponticelli than that presented during his jury trial. The postconviction

evidence included Mr. Ponticelli’s early childhood difficulties, together with the

fact that he had been born a “blue baby” which likely resulted in brain damage.

Mr. Ponticelli was placed in foster care when he was only just months old. Mr.

Ponticelli began abusing drugs as a youth.3 These early childhood difficulties,

which the jury never heard anything about, represent the “kind of troubled history

[the Supreme Court has] declared relevant to assessing a defendant’s moral

culpability.” See Wiggins v. Smith, 539 U.S. 510, 535, 123 S. Ct. 2527, 2542

(2003).

3 At the state court postconviction hearing, witnesses testified that Mr. Ponticelli began using marijuana and alcohol in junior high school, sometime between the ages of thirteen, fourteen, and fifteen years old, and then continued and increased his drug use in high school to more serious drugs, such as black beauties, mescaline, hashish, Valium, and cocaine. 84 Case: 11-11966 Date Filed: 08/16/2012 Page: 85 of 90

This postconviction mitigating evidence has particular significance here,

first because it is constitutionally relevant evidence. See Roper v. Simmons, 543

U.S. 551, 568, 125 S. Ct. 1183, 1194 (2005) (“In any capital case a defendant has

wide latitude to raise as a mitigating factor any aspect of his or her character or

record . . . .” (quotation marks and alterations omitted)). Second, it is significant

because it supports the existence of two mental state statutory mitigating

circumstances under Florida law. See Fla. Stat. § 921.141(6)(b), (f). In his

postconviction proceedings, Mr. Ponticelli presented the testimony of three

experts who agreed that his cocaine use on the day of the offense, coupled with his

lengthy and severe history of cocaine addiction, supported a conclusion that he

was under an extreme emotional disturbance at the time of the crime. See

Ponticelli III, 941 So. 2d at 1093. The three experts also agreed that this evidence

showed Mr. Ponticelli’s ability to appreciate the criminality of his conduct or

conform his conduct to the requirements of law was substantially impaired. See

While it is certainly true that the state’s mental health expert Dr. Conger

disagreed,4 it is not the job of this Court to resolve disputes in the evidence. Our

4 Dr. Conger opined that Mr. Ponticelli’s mental state at the time of the offense did not rise to the level to support statutory mitigators. Nevertheless, Dr. Conger agreed on cross- examination that the “record would certainly suggest” that Mr. Ponticelli “was not a cold- blooded murderer, and he was highly stressed during and after the homicides.” 85 Case: 11-11966 Date Filed: 08/16/2012 Page: 86 of 90

job is to determine whether there is a reasonable probability that the testimony of

Mr. Ponticelli’s experts would have affected the jurors’ appraisal of his moral

culpability. In my view there is. For one thing, the opinions of Mr. Ponticelli’s

experts do not suffer from the same infirmities as Dr. Mills’s testimony. Unlike

Dr. Mills, who testified to a factually inaccurate hypothetical based upon a

constitutionally inadequate background investigation, the opinions of the experts

who testified in postconviction proceedings were substantiated and corroborated

by extensive evidence, including evidence of Mr. Ponticelli’s drug use on the day

of the offense.

I am certainly aware that not all of the postconviction evidence presented

was favorable to Mr. Ponticelli. For example, as Judge Pryor suggests, trial

counsel’s portrayal of Mr. Ponticelli as a naive drug user during the penalty phase

may be more sympathetic than the reality that he had a longstanding drug

addiction and relapsed only weeks prior to the offense.5 Although I recognize the

force of this argument, the positives and negatives of this aspect of Mr.

5 Dr. Conger suggested that Mr. Ponticelli may have an antisocial personality disorder based upon one personality test administered by him, but he did not diagnose Mr. Ponticelli with this disorder. Even if we were to assume that Dr. Conger had determined that Mr. Ponticelli met all of the diagnostic criteria for antisocial personality disorder, such a diagnosis, although harmful, does not preclude a conclusion of prejudice. See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1340, 1253–56 (11th Cir. 2011) (granting habeas corpus relief based upon ineffective assistance of counsel at penalty phase even though defendant’s own psychologist diagnosed the defendant with antisocial personality disorder). 86 Case: 11-11966 Date Filed: 08/16/2012 Page: 87 of 90

Ponticelli’s background do not foreclose a finding of Strickland prejudice. The

Supreme Court has found prejudice in several cases where the evidence had both

good and bad properties. See Porter, 130 S. Ct. at 455 (holding that the habeas

petitioner was prejudiced by his counsel’s failure to present evidence of his

military service even though such evidence would have also shown that he “went

AWOL on more than one occasion”); Williams, 529 U.S. at 396, 120 S. Ct. at

1514 (holding that defense counsel’s failure to present juvenile records involving

child abuse, mental capacity, and incarceration was deficient, even though “not all

the additional evidence was favorable to” the petitioner); id. at 398–99, 120 S. Ct.

at 1515–16 (holding that the state trial judge had correctly found prejudice from

the failure to introduce the juvenile records); cf. Sears v. Upton, ___ U.S. ___,

___, 130 S. Ct. 3259, 3264 (2010) (stating “the fact that along with this new

mitigation evidence there was also some adverse evidence is unsurprising . . .

given that counsel’s initial mitigation investigation was constitutionally

inadequate. Competent counsel should have been able to turn some of the adverse

evidence into a positive . . . .”); Rompilla, 545 U.S. at 390–93, 125 S. Ct. at

2467–69 (holding that habeas petitioner was prejudiced by the failure of his

defense counsel to examine and present evidence from the records of his prior

87 Case: 11-11966 Date Filed: 08/16/2012 Page: 88 of 90

conviction). With this in mind, I say Mr. Ponticelli’s relapse does not vitiate the

conclusion that he has shown prejudice based upon the record in his case.

For example, the fact of a relapse and prejudice are not mutually exclusive

in light of the early onset of Mr. Ponticelli’s drug addiction, as well as the reality

that people who suffer from drug addiction sometimes succumb to their addiction

and relapse. See, e.g, Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1355 n.20

(11th Cir. 2011) (“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. However, we credit [the defendant’s] evidence of alcohol

abuse beginning at age 11 as mitigation, as it was used as a way to escape his

horrible background.” (quotation marks and citation omitted)); cf. Roper, 543 U.S.

at 569–70, 125 S. Ct. at 1195–96 (recognizing, generally, the differences between

juvenile and adult offenders in terms of moral culpability); id. at 570, 125 S. Ct. at

1195 (“The susceptibility of juveniles to immature and irresponsible behavior

means ‘their irresponsible conduct is not as morally reprehensible as that of an

adult.’” (quoting Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687,

2699 (1988) (plurality opinion))).

On the aggravation side of the ledger, the jury recommended death by a vote

of nine to three for the murders of both Nick and Ralph Grandinetti. The trial

88 Case: 11-11966 Date Filed: 08/16/2012 Page: 89 of 90

court found two aggravating factors applied to the murder of each man: (1) the

homicides were committed for pecuniary gain, see Fla. Stat. § 921.141(5)(f); and

(2) the homicides were “committed in a cold, calculated, and premeditated manner

without any pretense of moral or legal justification,” which is referred to as the

CCP aggravator, see id. § 921.141(5)(i). The trial court also found that Nick

Grandinetti’s murder was “especially heinous, atrocious, or cruel,” a factor often

referred to as the HAC aggravator. Id. § 921.141(5)(h). The CCP and HAC

aggravators have been recognized as “two of the most serious aggravators set out

in [Florida’s] statutory sentencing scheme.” Larkins v. State, 739 So. 2d 90, 95

(Fla. 1999). But together with the mitigating evidence never heard by them, the

judge and jury may have evaluated the CCP factor differently. They may have

given it different weight to the extent that the additional mitigating evidence

substantiated Mr. Ponticelli’s claim that he met the criteria for Florida’s statutory

mental health mitigators.

In sum, I conclude that had the judge and jury been able to consider Mr.

Ponticelli’s life history and drug use at the time of the offense, together with his

young age and lack of criminal history, on the mitigating side of the scale, and

reduce the strength of the CCP aggravating factor on the other side of the scale,

there is a reasonable probability that the sentencing judge and jury “would have

89 Case: 11-11966 Date Filed: 08/16/2012 Page: 90 of 90

struck a different balance.” Wiggins, 539 U.S. at 537, 123 S. Ct. at 2543; see also

Porter, 130 S. Ct. at 454. Even without the new and compelling evidence

presented at the postconviction hearing, three of Mr. Ponticelli’s original jurors

voted for life based upon nothing more than two statutory mitigating

circumstances, his youth and lack of criminal history. Had his jury been presented

with the considerable mitigating evidence adduced during the postconviction

proceedings—including the corroborated opinions of three mental health experts

as to the existence of Florida’s statutory mental health mitigators, coupled with the

two strong statutory mitigating circumstances already found by the sentencing

court—“there is a reasonable probability that it would have returned with a

different sentence.” Wiggins, 539 U.S. at 536, 123 S. Ct. at 2543. Although we

cannot be completely certain that the outcome would have been different,

Strickland does not require that of us. See 466 U.S. at 693, 104 S. Ct. at 2068

(stating that, to show prejudice, “a defendant need not show that counsel’s

deficient conduct more likely than not altered the outcome in the case”). Rather, a

defendant need only demonstrate a reasonable probability of a different outcome.

Id. at 694, 104 S. Ct. at 2068. For these reasons, I would grant Mr. Ponticelli

habeas relief as to his claim of ineffective assistance of counsel at the penalty

phase of his trial, and I respectfully dissent from the denial of this relief.