Derrick Anthony DeBruce v. Commissioner, Alabama Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 15, 2014
• Docket: 11-11535
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-11535 ________________________

D.C. Docket No. 1:04-cv-02669-IPJ

DERRICK ANTHONY DEBRUCE,

Petitioner - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

________________________

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

(July 15, 2014)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

WILSON, Circuit Judge:

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Derrick Anthony DeBruce, an inmate on Alabama’s death row, appeals the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 challenging his death sentence. DeBruce contends that he received

ineffective assistance of counsel in violation of the Sixth Amendment to the United

States Constitution in both the guilt and the penalty phases of his capital murder

trial.

DeBruce was convicted of fatally shooting a customer during the robbery of

an AutoZone store which he committed with five other men. 1 DeBruce argues that

his retained trial attorney, Erskine Mathis, was constitutionally ineffective in

failing to cross-examine state witness LuJuan McCants, a co-participant in the

robbery who identified DeBruce as the shooter at trial, with McCants’s earlier

allegedly contradictory statements. He also argues that Mathis was ineffective in

failing to investigate and present evidence about DeBruce’s mental capacity and

background during the penalty phase of his trial.2

1 See Ala. Code § 13A-5-40(a)(2) (proscribing capital murder in the course of a robbery). The Alabama Court of Criminal Appeals noted that all five of DeBruce’s codefendants were charged with capital murder, and that LuJuan McCants was the only defendant to whom Alabama offered a plea agreement and reduced sentence. See DeBruce v. State, 890 So. 2d 1068, 1074 n.1 (Ala. Crim. App. 2004). The apparent ringleader of the robbery, Charles Lee Burton, was convicted of capital murder and sentenced to death. See Burton v. State, 651 So. 2d 641 (Ala. Crim App. 1993). The record does not indicate the disposition of the charges against the other three defendants. 2 On collateral review, the Alabama Court of Criminal Appeals denied DeBruce relief as to his ineffective assistance of counsel claims, DeBruce, 890 So. 2d at 1074, and the Alabama Supreme Court denied DeBruce’s petition for certiorari. Ex Parte DeBruce, No. 1030617 (Ala. Apr. 30, 2004). 2 Case: 11-11535 Date Filed: 07/15/2014 Page: 3 of 117

I.

A district court’s grant or denial of a habeas corpus petition is reviewed de

novo. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Because DeBruce

filed his federal petition after April 24, 1996, this case is governed by 28 U.S.C. §

2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA). See Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1345 (11th Cir.

2011). Where, as here, a state court has denied an ineffective assistance of counsel

claim on the merits, the standard a petitioner must meet to warrant federal habeas

relief “was intended to be, and is, a difficult one.” Johnson v. Sec’y, DOC, 643

F.3d 907, 910 (11th Cir. 2011) (citing Harrington v. Richter, ___U.S.___, ___, 131

S. Ct. 770, 786 (2011)).

AEDPA allows federal courts to grant habeas relief only if the state court’s

resolution of those claims:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court’s decision is “contrary to” clearly established Supreme Court

precedent in either of two respects: (1) “if the state court applies a rule that

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contradicts the governing law set forth in [Supreme Court] cases,” or (2) “if the

state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from

[the Supreme Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 , 120

S. Ct. 1495, 1519–20 (2000). To determine whether a state court decision is an

“unreasonable application” of clearly established federal law, we are mindful that

“an unreasonable application of federal law is different from an incorrect

application of federal law.” Id. at 410, 120 S. Ct. at 1522. “A state court must be

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

review under the Strickland 3 standard itself.” Richter, 131 S. Ct. at 785 (footnote

added). As a result, “[a] state court’s determination that a claim lacks merit

precludes federal habeas relief so long as fairminded jurists could disagree on the

correctness of the state court’s decision.” Id. at 786 (quotation marks omitted).

In addition, a state court’s factual determination is entitled to a presumption

of correctness. 28 U.S.C. § 2254(e)(1). AEDPA’s “statutory presumption of

correctness applies only to findings of fact made by the state court, not to mixed

determinations of law and fact.” Parker v. Head, 244 F.3d 831, 836 (11th Cir.

2001). Ineffective assistance of counsel claims present mixed questions of law and

fact not entitled to a presumption of correctness. See Cade v. Haley, 222 F.3d

3 Stickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 4 Case: 11-11535 Date Filed: 07/15/2014 Page: 5 of 117

1298, 1302 (11th Cir. 2000) (stating Strickland’s deficient performance and

prejudice prongs “present mixed questions of law and fact reviewed de novo on

appeal”). Under 28 U.S.C. § 2254(e)(1), we must presume the state court’s factual

findings to be correct unless the petitioner rebuts that presumption by clear and

convincing evidence. See id. § 2254(e)(1); Parker, 244 F.3d at 835–36. Although

the Supreme Court has “not defined the precise relationship between § 2254(d)(2)

and § 2254(e)(1),” Burt v. Titlow, ___ U.S.___, ___, 134 S. Ct. 10, 15 (2013), it

has emphasized “that a state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion

in the first instance.” Id. (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct.

841, 849 (2010)).

If we determine that the state court’s adjudication of DeBruce’s Strickland

claims was unreasonable under § 2254(d), we must then undertake a de novo

review of the record. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1266

(11th Cir. 2009).

To establish that his counsel provided constitutionally ineffective assistance,

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

deficiency prejudiced his defense. See Strickland, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064. Deficient performance for purposes of the Sixth Amendment is

representation which falls “below an objective standard of reasonableness”

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measured by prevailing professional norms. Id. at 688, 104 S. Ct. at 2064. Trial

“counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at

690, 104 S. Ct. at 2066. “To overcome that presumption, a defendant must show

that counsel failed to act reasonably considering all the circumstances.” Cullen v.

Pinholster, ___ U.S. ___, ____, 131 S. Ct. 1388, 1403 (2011) (quotation marks and

alterations omitted). Since it is DeBruce’s burden to overcome this presumption,

“the absence of evidence cannot overcome the strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.” Titlow,

134 S. Ct. at 17 (quotation marks and alterations omitted). Given the deference

owed counsel under Strickland in combination with AEDPA, our review of

counsel’s performance is “doubly deferential.” Knowles v. Mirzayance, 556 U.S

111, 123, 129 S. Ct. 1411, 1420 (2009); see also Pinholster, 131 S. Ct. at 1403.

To establish that his counsel’s deficiency prejudiced his defense, DeBruce

“must show that there is a reasonable probability that, but for [his] counsel’s

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

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is one

that sufficiently undermines confidence in the outcome. Id. But “[t]he likelihood

of a different result must be substantial, not just conceivable.” Richter, 131 S. Ct.

at 792. That said, to show prejudice at either phase of a capital trial, “a defendant

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need not show that counsel’s deficient conduct more likely than not altered the

outcome in the case.” Strickland, 466 U.S. at 693, 104 S. Ct. at 2068. The

Supreme Court has explained this is so because an ineffective assistance of counsel

“claim asserts the absence of one of the crucial assurances that the result of the

proceeding is reliable, so finality concerns are somewhat weaker and the

appropriate standard of prejudice should be somewhat lower.” Id. at 694, 104 S.

Ct. at 2068. “The result of a proceeding can be rendered unreliable, and hence the

proceeding itself unfair, even if the errors of counsel cannot be shown by a

preponderance of the evidence to have determined the outcome.” Id. In making

the determination about whether there is a reasonable probability that DeBruce

would have received a different sentence, a reviewing court must “consider the

totality of the available mitigation evidence—both that adduced at trial, and the

evidence adduced in the habeas proceeding—and reweigh it against the evidence in

aggravation.” Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 453–54 (2009)

(quotation marks and alteration omitted).

II.

First, we address DeBruce’s arguments pertaining to the guilt phase of his

trial, then those pertaining to the sentencing phase.

A. Guilt-Phase Ineffective Assistance of Counsel

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Testimony at trial established that five armed men were involved in the

robbery. During DeBruce’s trial, McCants was the only witness who testified that

DeBruce fired the gunshot that killed Douglas Battle, a customer in the store. 4

According to McCants’s trial testimony, Battle entered the store while the robbery

was in progress. McCants saw Battle and ordered him to get down on the floor.

Battle threw his wallet at McCants, but did not get onto the ground. DeBruce

approached Battle from behind and hit him with his pistol, causing Battle to fall to

the ground. DeBruce and Battle then engaged in a verbal altercation. After all of

the robbers other than DeBruce left the store, McCants heard a gunshot from

inside, and then saw DeBruce run out. McCants testified that while DeBruce and

McCants were riding in the same car escaping from the crime scene, DeBruce

admitted to McCants that he shot Battle. McCants also testified that all of the

robbers had agreed prior to the robbery that if they encountered resistance from

anyone in the store, the lead robber, Charles Burton, “would take care of it.”

4 The remaining testimony at trial established DeBruce’s involvement in the robbery and identified the murder weapon. The State presented testimony from more than twenty witnesses, including five customers and employees of the AutoZone who witnessed the robbery, two of whom testified that DeBruce and one other robber were seen carrying handguns that matched the color of the murder weapon. However, none of these eyewitnesses were able to identify which of the five robbers shot Battle. Other witnesses included: bystanders on the street who identified DeBruce’s vehicle as the getaway car; police who arrested DeBruce one week after the robbery and recovered duct tape and other items from the trunk of DeBruce’s vehicle that were used in the robbery; a ballistic weapons expert who identified as the murder weapon a silver handgun found near the house where DeBruce and McCants were staying; and a forensics expert who testified that DeBruce’s and several other robbers’ fingerprints were discovered at the AutoZone, however, no fingerprints were recovered from the murder weapon.

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Finally, McCants identified the handguns belonging to several of the robbers, and

testified that the handgun DeBruce carried on the day of Battle’s murder was

silver, while claiming that his own handgun was black.

DeBruce argues that these aspects of McCants’s trial testimony were

contradicted by statements McCants made to police officers one week after the

incident. During that interrogation, McCants initially denied that he knew who

fired the fatal shot; denied that the robbers had agreed to use force against anyone

who resisted the robbery; and stated that he and DeBruce left the scene of the

murder in separate cars, and that he did not speak to DeBruce after the murder.

Further, McCants claimed during the interrogation that he had carried a silver

handgun, the same color as the murder weapon, and that he could not remember

the guns carried by any of the robbers other than by himself and DeBruce.

DeBruce argues that Mathis performed deficiently in failing to cross-

examine McCants with the discrepancies between his interrogation statements and

his trial testimony. The Alabama Court of Criminal Appeals concluded that

Mathis’s cross-examination was not deficient because he impeached McCants with

his plea agreement and advanced, via the testimony of DeBruce’s niece, the

defense’s theory that McCants was the shooter. DeBruce, 890 So. 2d at 1087.

We cannot say that the state court’s conclusion regarding Mathis’s

performance was an unreasonable application of or contrary to Strickland. See 28

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U.S.C. § 2254(d). In addition to the above-referenced statements, McCants did

identify DeBruce as the shooter during his interrogation, albeit only after the police

claimed that DeBruce and one of the other robbers had named McCants as the

gunman. Further, the central aspects of McCants’s interrogation statements were

supportive of his trial testimony. In particular, McCants stated during both his

interrogation and his trial testimony that he saw DeBruce attack Battle from

behind, that DeBruce and Battle were in a verbal altercation, and that DeBruce was

the only robber remaining in the store when the gunshot was fired. 5

DeBruce’s counsel, Mathis, reviewed the interrogation video but did not use

McCants’s interrogation statements to impeach him. 6 Rather, the record reflects

5 Specifically, McCants stated to the police,

[McCants]: Yeah, I couldn=t see nothing, but the only person who could have shot him was Derrik. [sic]

Policeman #1: DerrikBand the reason you say that is because, according to you, Derrik was the only one that was in the back of the store?

[McCants]: Yeah.

McCants stated on several other occasions during his interrogation that he witnessed DeBruce attack Battle from behind, and that he believed that DeBruce was the only robber who could have shot Battle. 6 During the state collateral proceeding conducted in 1999, Mathis firmly denied that he had viewed the video before DeBruce’s trial. However, the trial court in DeBruce’s state post- conviction proceeding found that Mathis had viewed the video, a finding that was based on contemporaneous notes made by the prosecutor memorializing that the video was displayed to Mathis. This finding was also supported by the trial transcript, which reflects that Mathis expressed familiarity with the contents of the video immediately before McCants took the witness stand.

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that Mathis viewed the interrogation as primarily corroborative of McCants’s trial

testimony at the time of trial. When the prosecutor notified Mathis shortly before

McCants testified that the State would use the interrogation statements to

rehabilitate McCants’s credibility if impeached, Mathis insisted that he would not

attempt to argue that McCants had fabricated his account of the robbery in order to

avoid allowing the prosecution to introduce McCants’s interrogation statements.

Instead, Mathis introduced the testimony of DeBruce’s niece stating that

McCants told her one week after the robbery that he, McCants, had committed the

shooting, and cross-examined McCants about this statement and his plea

agreement. Mathis used this testimony to argue that McCants was the shooter and

that he had falsely accused DeBruce in exchange for a lesser sentence. The

interrogation statements, which were consistent with McCants’s identification of

DeBruce as the shooter, would have conflicted with Mathis’s attempt to portray

McCants as the actual shooter through the testimony of DeBruce’s niece. Based

on this record, we must reject DeBruce’s argument that the Alabama Court of

Criminal Appeals’ conclusion that Mathis was deficient in failing to cross-examine

McCants with the transcript of his interrogation was an unreasonable application of

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Strickland.7 See Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066 (discussing

deference owed to counsel’s strategic decisions based on adequate investigation).

B. Penalty-Phase Ineffective Assistance

Also, DeBruce argues that Mathis was ineffective in failing to investigate

several issues that, he contends, would have led Mathis to discover mitigating

evidence that was never presented at his sentencing, including that DeBruce

experienced violence in his neighborhood and severe abuse at the hands of his

sister, that he dropped out of school in the seventh grade, suffers from mental

impairments and low intellectual functioning, and has a painful intestinal disorder.

To prepare for the sentencing phase of DeBruce’s trial, Mathis spoke to two

people: DeBruce and his mother, Jessie DeBruce. At sentencing, Mathis presented

one witness, Jessie DeBruce, who testified that DeBruce completed high school,

attended college at the University of Alabama, and that although he had an

impoverished childhood, it was otherwise unremarkable. She also made passing

mention of DeBruce’s treatment for a mental disorder, although this statement was

7 We must also reject DeBruce’s separate argument that Mathis’s assistance was ineffective because he did not introduce evidence that McCants may have been involved in purchasing the murder weapon initially through the use of an alias. Even if we assume that counsel was deficient in declining to use this evidence, we cannot say that it would have created a reasonable probability of a different outcome during the guilt phase of DeBruce’s trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. This additional evidence does not significantly add to the evidence introduced by Mathis tending to show that McCants may have had access to the murder weapon and, in any event, is not particularly probative in regard to showing that McCants used the weapon during the AutoZone robbery.

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not accompanied by any explanation of the disorder or its effects. DeBruce was

also permitted to make a plea to the jury to spare his life.

DeBruce argues that had Mathis conducted a reasonably adequate mitigation

investigation the jury should have heard the evidence presented at his state

collateral hearing, which consisted of the testimony of three expert medical

witnesses and two of DeBruce’s sisters. Among the medical experts, two

psychologists presented testimony that DeBruce suffers from lingering emotional

damage and social impairments associated with having been raised in a violent

community, and that he dropped out of school at the age of sixteen having

advanced only to the seventh grade. Further, the psychologists testified that

DeBruce suffers from brain damage and that his intelligence is in the borderline

range, with IQ scores between 76 and 79, which was not disputed by the

psychologist who testified for the state at the state collateral hearing. 8 They also

testified that DeBruce suffers from blackout episodes consistent with seizures

accompanied by periods of non-responsive staring and loss of memory. One of the

psychologists noted that DeBruce was raised in an impoverished family of eleven

children with an alcoholic father who was verbally abusive and uninvolved in his

8 Although the State’s psychologist testified that DeBruce suffers from no serious mental illness or mental defect and exhibited some signs of malingering, the State’s expert also conceded that DeBruce was giving reasonable effort during testing and that the IQ testing by DeBruce’s experts was accurate and would qualify to be considered as a mitigating circumstance. 13 Case: 11-11535 Date Filed: 07/15/2014 Page: 14 of 117

childrens’ upbringing. DeBruce was frequently attacked by gangs in his housing

project, often on the way to and from school. DeBruce developed substance abuse

problems during his teenage years and was pressured to join gangs. Finally, a

gastroenterologist testified that DeBruce was diagnosed with an intestinal disease

that causes severe abdominal pain and frequent vomiting, although the diagnosis

was not made until after DeBruce’s trial and conviction.

Also during the state collateral hearing, DeBruce’s sisters testified that

DeBruce witnessed stabbings, shootings, and other violence in the housing project

where he grew up, and that DeBruce was frequently attacked by gangs. His sister

Jacqueline testified that DeBruce was very close to his older brother, who was

incarcerated when DeBruce was eight years old, and that DeBruce had little

relationship with his father. Jacqueline also testified that DeBruce’s older sister,

Juanita, was primarily responsible for raising DeBruce and the other children, and

that Juanita disciplined DeBruce by beating him and withholding meals. Juanita

beat DeBruce with switches and extension cords, and even threatened DeBruce and

the other children with a knife. These beatings were often followed by leaving

DeBruce in a closet for several hours. Jacqueline explained that sometimes the

beatings would occur because DeBruce did not obey an instruction, and at other

times Juanita would beat DeBruce because he did not understand his homework.

Jacqueline testified that these beatings occurred virtually every day. DeBruce did

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not resist the beatings but complied with whatever Juanita told him to do, including

remaining in the closet until she told him he could leave. As a child, DeBruce

frequently cried himself to sleep, and drew pictures of Juanita holding a knife in

her hand. Jacqueline also testified that DeBruce suffered from chronic health

problems, including severe stomach pain and frequent seizures that paralyzed him

for five to ten minutes at a time and that required him to be hospitalized on several

occasions. DeBruce’s sister Linda also testified that DeBruce took care of her after

she had a stroke at the age of twenty-six that rendered her unable to walk, bathe,

put on clothes, or feed herself. Both Jaqueline and Linda testified that they were

not contacted by Mathis before DeBruce’s trial.

In assessing the reasonableness of Mathis’s decision to limit his mitigation

investigation to speaking with DeBruce and his mother and not to further

investigate DeBruce’s mental health and background, we analyze whether Mathis

“conducted an adequate background investigation or reasonably decided to end the

background investigation when [he] did.” Cooper v. Sec’y, 646 F.3d 1328, 1351

(11th Cir. 2011) (internal quotation marks omitted); see Wiggins v. Smith, 539 U.S.

510, 533, 123 S. Ct. 2527, 2541 (2003) (“A decision not to investigate . . . must be

directly assessed for reasonableness in all the circumstances.” (internal quotation

marks omitted)); see also Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066

(“[S]trategic choices made after less than complete investigation are reasonable

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precisely to the extent that reasonable professional judgments support limitations

on investigation. In other words, counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.”) DeBruce argues that a pre-trial report created by a social worker at

Mathis’s request, which assessed DeBruce’s competence to stand trial, should have

alerted Mathis of the need to make further inquiry into DeBruce’s mental health

and background. 9 The report conveyed that DeBruce, who was then twenty years

old, had attempted suicide on four occasions. He had refused special education,

and had dropped out of school at the age of sixteen, having advanced only to the

seventh grade. The report stated that DeBruce’s intelligence was in the “low

average” range, but he denied receiving professional treatment or having been

hospitalized for psychiatric reasons. The report also noted that DeBruce “has a

history of problems since childhood including marijuana and alcohol abuse.”

9 The State contends that the report was not included in the record submitted to the state trial court that ruled on DeBruce’s petition for collateral relief, and that we are therefore foreclosed from considering it. However, the Alabama Court of Criminal Appeals made clear that its review was based on “the entire record of the trial proceedings in this case, which was filed in the direct appeal” from DeBruce’s conviction, noting that the Court “may take judicial notice of [its] own records.” DeBruce, 890 So. 2d at 1083 n.6. Because the report was included in the trial record reviewed by the Alabama Court of Criminal Appeals in DeBruce’s collateral appeal, it was part of “the record that was before the state court that adjudicated [DeBruce’s] claim on the merits,” and we may consider it pursuant to our review under § 2254(d)(1). Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

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Mathis testified during the state collateral hearing that he took on DeBruce’s

case within three to four weeks of trial. 10 During the limited time that Mathis had

to prepare for DeBruce’s trial, he maintained his involvement in other cases that

were being tried in the same period, and did not hire an investigator because he did

not have the funds to pay for one. Mathis expressly denied that he had any

strategic reason not to conduct a background investigation or to follow up on

information in the competency report, but that he did not do so because “we just

didn’t have time.” After DeBruce’s family retained Mathis, Mathis associated with

William DelGrosso to assist in the defense. Mathis testified that DelGrosso began

his involvement in the case even later than Mathis and that DelGrosso’s assistance

in investigating for either the guilt or penalty phases consisted of helping Mathis

sort through a banker’s box of discovery material. The Alabama Court of Criminal

Appeals noted that “DelGrosso did not testify or execute an affidavit for purposes

of the postconviction proceedings. We do not know the extent of his involvement

in the case or what investigation he conducted in preparation for trial. Neither was

Mathis questioned about what investigations that he and DelGrosso conducted.”

DeBruce, 890 S.2d at 1085.

10 Mathis entered his notice of appearance in DeBruce’s capital case as a retained lawyer on January 16, 1992. A few days earlier, on January 13, 1992, Mathis had advised the state trial court that he had been retained to represent DeBruce. DeBruce’s trial started with jury selection on February 10, 1992, and testimony began the next day. The jury found DeBruce guilty of capital murder on February 13, 1992 and, following a sentencing heading on February 14, 1992, the jury recommended a sentence of death. 17 Case: 11-11535 Date Filed: 07/15/2014 Page: 18 of 117

While it is true that DelGrosso did not testify at the state posctonviction

hearing, the state court record is not silent about DelGrosso’s involvement in this

case or about the investigation conducted by Mathis and DelGrosso. During the

state postconviction hearing, Mathis was specifically questioned about whether he

used the services of a social worker, investigator or other specialist to help him

investigate potential mitigation. Mathis explained that he typically used an

investigator or subpoenas to help him collect background records, such as school

and medical records. And Mathis usually relied on that same investigator to

interview siblings, pastors, teachers, and other mitigation witnesses. But in

DeBruce’s case, Mathis did not work with an investigator to help him do this

critical investigation work because there was insufficient time. Nor did Mathis

himself have time to do the work the investigator would have done. As a result, he

testified “[w]e didn’t do it.” And there can be no doubt that Mathis was not only

speaking for himself, but also testifying about the work DelGrosso did on the case

when he Mathis said “[w]e didn’t do it.” This is so because the record is clear that

the only person Mathis had helping him was DelGrosso. Significantly, Mathis

repeatedly denied having any strategic reason for not doing the mitigation work

that an investigator would have performed. Rather, Mathis offered a simple

explanation: “We got in it too late.” This postconviction evidence, combined with

the minimal mitigation evidence actually presented during the original sentencing

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proceeding, suggests trial counsel’s failure to investigate and present available and

compelling mitigating evidence was the result of inattention, not reasonable

professional judgment.

Moreover, our review of the entire state court record leads us to conclude

that Mathis was lead counsel and DelGrosso played only a minor role in the

investigation, preparation and presentation of DeBruce’s case. This conclusion is

supported by the following facts in the state court record: (1) Mathis was retained

by DeBruce’s mother; (2) Mathis testified that DelGrosso entered the case much

later and only after Mathis “realized how big a task [he] had and asked

[DelGrosso]” for help; (3) DelGrosso entered his notice of appearance on January

28, 1992, less than two weeks before the trial started; (4) Mathis’s name alone

appears on all of DeBruce’s pretrial motions; (5) Mathis, not DelGrosso, cross

examined all of the state’s guilt phase witnesses except for one; (6) Mathis

presented DeBruce’s case-in-chief during the guilt phase; (7) Mathis presented the

testimony of the only penalty phase witness; (8) Mathis alone appeared on

DeBruce’s behalf at the sentencing hearing before the trial judge; and (9) Mathis

alone appeared on DeBruce’s behalf at the motion for new trial hearing.

Despite all of this, the Alabama Court of Criminal Appeals concluded that

Mathis did not fail to conduct a reasonable investigation because Mathis testified

during the state collateral hearing that the information he received did not lead him

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to question DeBruce’s competence to stand trial or to consider defending DeBruce

based on a lack of mental capacity. 11 However, DeBruce’s fitness to be tried and

decisions about whether to present a mental health defense during the guilt phase

are separate issues from the decision whether to investigate and present mitigating

evidence during sentencing. See Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct.

1495, 1516 (2000) (noting that evidence of defendant’s mental capacity and

abusive background “may alter the jury’s selection of penalty, even if it does not

undermine or rebut the prosecution’s death-eligibility case”); Hardwick v. Crosby,

320 F.3d 1127, 1163 (11th Cir. 2003) (“Regarding mental health mitigating

evidence, our court has distinguished between its use during the guilt phase to

establish competency to stand trial and presenting mental health mitigating

evidence at the penalty phase.”); Blanco v. Singleterry, 943 F.2d 1477, 1503 (11th

Cir. 1991) (“[T]here is a great difference between failing to present evidence

sufficient to establish incompetency at trial and failing to pursue mental health

mitigating evidence at all. One can be competent to stand trial and yet suffer from

mental health problems that the sentencing jury and judge should have had an

opportunity to consider.”). The Alabama Court of Criminal Appeals’

determination that Mathis acted strategically in failing to conduct a mitigation 11 See DeBruce, 890 So. 2d at 1092 (“[A] preliminary examination had been conducted before trial, and as a result Mathis felt there was no reason to proceed with a mental-health defense. Mathis testified that he had no reason to doubt DeBruce’s mental competency after reviewing the preliminary report.”).

20 Case: 11-11535 Date Filed: 07/15/2014 Page: 21 of 117

investigation is based on its erroneous conflation of the issues of guilt-phase

mental health defenses and competence to stand trial with the separate issue of

whether to conduct a mitigation investigation. We have held that questions

regarding whether an attorney’s decision is “strategic” or “tactical” is a question of

fact, and whether that decision is reasonable is a question of law. See Hardwick,

320 F.3d at 1163. Moreover, a strategic decision cannot be reasonable if it is based

on a misunderstanding of the law. Id. Here, even if we accept the state court’s

factual determination that Mathis made a strategic decision not to investigate

mitigation evidence based on the results of the pre-trial report governing

DeBruce’s competency to stand trial, that decision could not have been reasonable

as it would have been based on a failure to understand the law. See Williams, 529

U.S. at 398, 120 S. Ct. at 1515; Hardwick, 320 F.3d at 1163; Blanco, 943 F.2d at

1503. 12 Because no lawyer could reasonably have made a strategic decision to

forego the pursuit of mitigation evidence based on the results of the pre-trial report

governing competency to stand trial, the Alabama Court of Criminal Appeals’

conclusion to the contrary constitutes an unreasonable application of Strickland’s

performance prong.

12 Mathis also testified at the state collateral hearing that his decision not to investigate DeBruce’s mental health was not the product of a strategic decision, but was instead merely a by-product of lack of time as Mathis scrambled to prepare for trial with less than four weeks’ preparation time while also preparing for and conducting other trials. 21 Case: 11-11535 Date Filed: 07/15/2014 Page: 22 of 117

Moreover, Mathis’s decision not to follow up on the information in the

competency report was all the more unreasonable insofar as the report contradicted

what Mathis had learned about DeBruce’s background from DeBruce’s mother and

from DeBruce’s youthful offender investigation report. While DeBruce’s mother

testified at the sentencing phase of DeBruce’s trial that her son had completed high

school and attended the University of Alabama, the competency report and

DeBruce’s school records clearly indicated that he had dropped out of school in the

seventh grade at the age of sixteen after being held back several times. The

youthful offender investigation report filed on January 7, 1992, also reflected that

DeBruce had reported to the probation officer that he was in a “gifted” program in

high school and that he had attended one semester of college at the University of

Alabama. Although the information furnished by the competency report obviously

conflicted with this account of DeBruce’s background, Mathis never confronted

DeBruce or his mother with these inconsistencies in order to discover the truth, nor

did he follow up on the competency report’s references to DeBruce’s four attempts

to commit suicide before the age of twenty. As a result, Mathis permitted

DeBruce’s mother to present grossly inaccurate testimony during her son=s

sentencing hearing that DeBruce had been a successful student and had attended

the University of Alabama. See Williams v. Allen, 542 F.3d 1326, 1340, 130 S. Ct.

447, 453 (11th Cir. 2008) (holding counsel’s investigation deficient where

22 Case: 11-11535 Date Filed: 07/15/2014 Page: 23 of 117

“counsel obtained an incomplete and misleading understanding of [the

defendant’s] life history” by relying upon the defendant’s mother’s account despite

the availability of several other family members). See also Porter v. McCollum,

558 U.S. 30, 40 (2009) (per curiam) (holding that counsel performed deficiently by

failing to investigate mitigating mental health information presented in the

defendant’s competency report, and that this deficiency could not be excused by

defendant’s “fatalistic and uncooperative” representations that discouraged counsel

from investigating in this area); Wiggins, 539 U.S. at 523–24, 123 S. Ct. at 2536

(holding counsel’s performance deficient where counsel failed to follow up on

references in the defendant’s pre-sentence report to the defendant’s “misery as a

youth” and his own description of his background as “disgusting”).

By failing to take even the first step of asking DeBruce and his mother about

the information in the report, Mathis “chose to abandon [his] investigation at an

unreasonable juncture, making a fully informed decision with respect to sentencing

strategy impossible.” Wiggins, 539 U.S. at 527–28, 123 S. Ct. at 2538. As we

have held before, “[a]lthough counsel need not investigate every evidentiary lead,

he must gather enough knowledge of the potential mitigation evidence to arrive at

an informed judgment in making that decision.” Jackson v. Herring, 42 F.3d 1350,

1367 (11th Cir. 1995) (internal quotation marks omitted); see Williams, 542 F.3d at

1340 (holding counsel deficient for ignoring “red flags [that] would have prompted

23 Case: 11-11535 Date Filed: 07/15/2014 Page: 24 of 117

a reasonable attorney to conduct additional investigation”); Fortenberry v. Haley,

297 F.3d 1213, 1230 (11th Cir. 2002) (Per Curiam) (“Absent any viable strategic

reason, however, the failure to present available mitigating evidence renders

assistance constitutionally ineffective.”).

Here, rather than taking the simple step of questioning DeBruce and his

mother about the inconsistency between his mother’s account of DeBruce’s

childhood and the information in the social worker’s pre-trial report, trial counsel

unreasonably ignored this disparity, failing to make an informed choice not to

investigate DeBruce’s mental health and background. Furthermore, counsel’s

testimony during the state collateral proceedings made clear that his failure to

conduct adequate investigation was not the result of a strategic decision, but rather

a result of the lack of time as he scrambled to prepare for DeBruce’s capital trial

with less than four weeks’ time while also preparing for and conducting other

trials. As a result of this rush and inattention trial counsel obtained a misleadingly

“benign conception of [DeBruce’s] upbringing and mental capacity,” Rompilla v.

Beard, 545 U.S. 374, 391, 125 S. Ct. 2456, 2459 (2005), which led him to present

the sentencing jury with an incomplete and inaccurate “life profile of [the]

defendant.” Williams, 542 F.3d at 1339 (alteration in original); see id. (“[W]e have

found deficient performance in cases where an attorney’s efforts to speak with

24 Case: 11-11535 Date Filed: 07/15/2014 Page: 25 of 117

available witnesses were insufficient to formulate an accurate life profile of the

defendant.” (internal quotation marks omitted)).

“[S]trategic choices made after less than complete investigation are

reasonable only to the extent that reasonable professional judgments support the

limitations on investigation,” Wiggins, 539 U.S. at 533, 123 S. Ct. at 2530 (internal

quotation marks omitted), and here, there is no indication that Mathis’ failure to

develop the troubling leads in DeBruce’s competency report was supported by a

professional judgment not to pursue a mitigation investigation. Accordingly, the

Alabama Court of Criminal Appeals conclusion that Mathis was not deficient in

failing to question DeBruce and his mother about these overt contradictions

constituted an unreasonable application of Strickland and its progeny.

Having established that counsel performed deficiently in failing to

investigate DeBruce’s mental health and background, DeBruce next must show

that he suffered prejudice. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

The “relevant question for determining” whether the defendant was prejudiced at

sentencing by his counsel’s deficiency “is whether ‘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 if competent counsel had presented and

explained the significance of all the available evidence.’” Fortenberry, 297 F.3d at

25 Case: 11-11535 Date Filed: 07/15/2014 Page: 26 of 117

1229 (quoting Williams, 529 U.S. at 399, 120 S. Ct. at 1516). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome” of

the petitioner’s sentencing. Williams, 529 U.S. at 391, 120 S. Ct. at 1512.

We have explained that “the primary purpose of the penalty phase is to

insure that the sentence is individualized by focusing on the particularized

characteristics of the defendant.” Brownlee v. Haley, 306 F.3d 1043, 1074 (11th

Cir. 2002) (internal quotation marks omitted). To ensure that the penalty phase

achieves this purpose we have held that a petitioner is prejudiced where the

mitigation evidence omitted by counsel’s deficient investigation “paints a vastly

different picture of [the petitioner’s] background than that created by” the actual

penalty-phase testimony. Williams, 542 F.3d at 1342. “By failing to provide such

evidence to the jury, though readily available, trial counsel’s deficient performance

prejudice[s a petitioner’s] ability to receive an individualized sentence.” Brownlee,

306 F.3d at 1074 (internal quotation marks omitted).

Here, because Mathis’s investigation left him unaware of DeBruce’s

upbringing, the sentencing jury heard nothing of the daily beatings that DeBruce

suffered as a child at the hands of his older sister, his resistance to joining gangs

despite their assaults and intimidation, the pervasive violence in his neighborhood

that caused him to witness the stabbing of a neighbor and his brother being shot,

his one or more suicide attempts, DeBruce’s efforts to nurse his sister while she

26 Case: 11-11535 Date Filed: 07/15/2014 Page: 27 of 117

recovered from an incapacitating stroke, DeBruce’s alcoholic and disengaged

father, or his struggles in school and his low-average intelligence. Although “a

troubled history that includes ‘severe privation,’ ‘abuse,’ ‘physical torment,’ and

an ‘alcoholic, absentee [parent]” like DeBruce’s “is the kind of troubled history

that the [Supreme] Court has ‘declared relevant to assessing a defendant’s moral

culpability,’” Johnson v. Sec’y, Dept. of Corr., 643 F.3d 907, 935 (11th Cir. 2011)

(quoting Wiggins, 539 U.S. at 535), and this information could have been

discovered by following up on DeBruce’s competency report, the jury learned

nothing of it. Instead, the sentencing jury heard DeBruce’s mother’s falsely

embellished testimony that he completed high school, attended college, and that

although he had an impoverished childhood, it was otherwise unremarkable.

Though the jurors also heard his mother make passing mention of his treatment for

a mental disorder, this was not accompanied by any explanation, whatsoever, of

the disorder or its effects. This generalized description omitted the “particularized

characteristics” of DeBruce’s heavily disadvantaged background and upbringing,

Brownlee, 306 F.3d at 1074 (internal quotation marks omitted), and did not even

begin to explain the significance of DeBruce’s mental impairments, all of which

“might well have influenced the jury’s appraisal of [DeBruce’s] moral culpability,”

Wiggins, 539 U.S. at 538, 123 S. Ct. at 2544 (internal quotation marks omitted).

Indeed, far from presenting the jury with “an accurate life profile of [DeBruce],”

27 Case: 11-11535 Date Filed: 07/15/2014 Page: 28 of 117

Williams, 542 F.3d at 1339 (internal quotation marks omitted), the profile

DeBruce’s sentencing jury received was not only incomplete, but also filled with

the misinformation that DeBruce had been a successful student who had attended

college.

Accordingly, “[t]his is not a case in which the new evidence would barely

have altered the sentencing profile presented to the sentencing judge[,]” Porter,

558 U.S. at 41, 130 S. Ct. at 454 (internal quotation marks omitted); rather, it is

one in which adequate investigation would have enabled counsel to correct a

positively misleading sentencing profile, and to present “a vastly different picture .

. . than that created” by the actual trial testimony. Williams, 542 F.3d at 1342.

The Alabama Court of Criminal Appeals determined that counsel’s failure to

present this mitigating evidence did not prejudice DeBruce because two

aggravating factors were proven against him, and because of its view of the mental

health evidence as “conflicting,” and of the facts of the murder itself. DeBruce,

890 So.2d at 1093. However, the Alabama court’s decision to discount the

significance of DeBruce’s mental health mitigating evidence as “conflicting” lacks

support from the record. There was no inconsistency in the testimony by

DeBruce’s experts at the state collateral hearing, and although the state’s

psychologist testified that DeBruce “suffers from no serious mental illness or

mental defect” and exhibited some signs of malingering, the state’s expert also

28 Case: 11-11535 Date Filed: 07/15/2014 Page: 29 of 117

conceded that DeBruce “was giving reasonable effort” during testing and that the

IQ testing by DeBruce’s experts was accurate and would qualify as a mitigating

circumstance. Thus, although there was inconsistency in the testimony by the

state’s expert, this inconsistency favors DeBruce, and does not justify discounting

DeBruce’s mitigating evidence.

Moreover, in applying Strickland in cases where counsel has failed to

introduce any of the available mitigating evidence of the defendant’s mental

impairment and history of abuse that should have been discovered by adequate

investigation, the Supreme Court has repeatedly rejected arguments that the

defendant is not prejudiced by the complete omission of this type of evidence. For

example, in Williams v. Taylor, the Supreme Court held that prejudice was

established where counsel had introduced the testimony of four witnesses during

the sentencing phase, but none of these witnesses described the “abuse and

privation” that the defendant suffered during childhood or his serious mental

impairments. 529 U.S. at 398; see id. at 370 (describing penalty-phase testimony).

Similarly, in Wiggins v. Smith, where trial counsel presented no background

evidence at all and the jury heard only one mitigating factor at sentencing, 539

U.S. at 515–16, 123 S. Ct. at 2532–33, counsel’s failure to present any evidence of

the defendant’s abusive background prejudiced the defendant, see id. at 537–38,

123 S. Ct. at 2543–44. And in Porter v. McCollum, the Court again found

29 Case: 11-11535 Date Filed: 07/15/2014 Page: 30 of 117

prejudice where counsel completely failed to present testimony about the

defendant=s abusive background and mental defects, notwithstanding that, as here,

one witness did testify on the defendant’s behalf and gave positive information

about his background. Porter, 558 U.S. at 41–44.13

As in each of these cases, the penalty-phase testimony provided by the sole

witness called at sentencing gave no indication that DeBruce had suffered abuse

during his childhood and had been routinely exposed to violence, although this is

the type of background evidence that the Supreme Court has repeatedly “declared

relevant to assessing a defendant’s moral culpability.” Wiggins, 539 U.S. at 535,

123 S. C. at 2542. Moreover, according to the state court’s own characterization of

the sentencing proceeding, the testimony adduced at trial consisted almost entirely

of DeBruce and his mother “saying that he was sorry and begging the jury to spare

his life.” DeBruce, 890 So. 2d at 1093. Although DeBruce and his mother pled

for mercy at his sentencing, it is unlikely that their pleas resonated with the jury in

the absence of the omitted mitigating evidence showing why DeBruce’s

background and mental capacity may have warranted clemency. See Rompilla,

545 U.S. at 393, 125 S. Ct. at 2469 (noting that undiscovered “mitigating evidence,

13 We also have recognized that counsel’s failure to adequately describe to the jury a defendant’s history of severe abuse may prejudice the defendant even where penalty-phase witnesses testified about other aspects of the defendant’s background and character. See Cooper, 646 F.3d at 1353–56; Johnson, 643 F.3d at 935–37; Williams, 542 F.3d at 1342–45.

30 Case: 11-11535 Date Filed: 07/15/2014 Page: 31 of 117

taken as a whole, might well have influenced the jury’s appraisal of [a defendant’s]

culpability” where the original sentencing strategy included a plea for mercy)

(internal quotation marks omitted)). Indeed, because Mathis’s investigation failed

to uncover any of the mitigating circumstances that existed in his background,

counsel was left without an evidentiary basis on which to make an argument for

clemency at the end of sentencing. Thus, when counsel tried to argue that

DeBruce’s crime had to be understood in light of his background, the

government’s objection that the argument was improper because no evidence of

that background had been introduced at sentencing was sustained. But had counsel

“presented and explained the significance of” the regular abuse DeBruce suffered

throughout his childhood, his exposure to violence in his community and his

limited mental capacity, there would have been a compelling basis on which to

argue for clemency in light of DeBruce’s age and life experiences. See Williams,

529 U.S. at 369 (discussing impact of counsel’s inadequate investigation on ability

to present a closing argument).14 Finally, the State does not point to any additional

aggravating evidence that would have been introduced had counsel presented

14 Taking into account DeBruce’s troubled and violent history in addition to his youth might well have enabled the jury to understand DeBruce’s crime as an “irrational and sudden” killing that deserved lesser punishment because it occurred as part of a robbery “‘gone horribly awry—as opposed to one involving murder as the intended goal.’” Harris v. Dugger, 874 F.2d 756, 764 (11th Cir. 1989); see also Porter, 558 U.S. at 43 (“It is unreasonable to discount to irrelevance . . . evidence of [an] abusive childhood . . . when that kind of history may have particular salience for a jury evaluating [the defendant=s] behavior.”). 31 Case: 11-11535 Date Filed: 07/15/2014 Page: 32 of 117

testimony about DeBruce’s background and mental health. 15 See Wiggins, 539

U.S. at 513, 123 S. Ct. at 2531 (holding that prejudice was enhanced where the

State lacked additional aggravating evidence “that could have been introduced . . .

to offset this powerful mitigating narrative” of childhood abuse and mental

impairment).

Accordingly, we find that the Alabama Court of Criminal Appeals

unreasonably applied Strickland in holding that the omitted evidence in this case

had no reasonable probability of reducing DeBruce’s sentence. Because of trial

counsel’s deficient performance, DeBruce’s jury was given almost no reason to

spare his life as demonstrated by the paucity of mitigating evidence actually

presented during the penalty phase and the fact that the state trial court found only

one mitigating circumstance, DeBruce’s age. See DeBruce, 890 So. 2d at 1090;

see Porter, 558 U.S. at 41, 130 S. Ct. at 454 (finding prejudice where “[t]he judge

and jury at [the petitioner’s] original sentencing heard almost nothing that would

humanize [the petitioner] or allow them to accurately gauge his moral

culpability”). We also emphasize this is not a case where the state courts found,

or the State has argued in its briefing, that the prejudicial effect of presenting the

omitted mitigating evidence would have been offset by the harmful effect of the

15 Indeed, the State explicitly relied upon two aggravating factors – that DeBruce had pled guilty on September 13, 1991, to second-degree robbery for a prior theft and had been sentenced to prison for two years, and that he had been convicted of capital murder for the death of Douglas Battle. 32 Case: 11-11535 Date Filed: 07/15/2014 Page: 33 of 117

evidence itself or would have opened the door to evidence that was more harmful

than helpful. See DeYoung v. Schofield, 609 F.3d 1260, 1291 (11th Cir. 2010)

(discounting the possibility of prejudice where the new mitigating evidence “would

have opened the door to harmful testimony which may well have eliminated any

mitigating weight in the overall equation”).16 Because the omitted mitigating

evidence, when compared to what little was actually introduced at trial,

undermines confidence in the outcome of DeBruce’s sentencing, DeBruce suffered

prejudice at the penalty phase of his capital murder trial. See Strickland, 466 U.S.

at 694, 104 S. Ct. at 2068.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

16 In any event, the Supreme Court found prejudice in Williams v. Taylor even though AEDPA deference applied to a state court’s adjudication of prejudice in a capital sentencing and “not all of the additional evidence [about the defendant’s childhood] was favorable.” Williams, 529 U.S. at 396, 120 S. Ct. at 1514. 33 Case: 11-11535 Date Filed: 07/15/2014 Page: 34 of 117

MARTIN, Circuit Judge, concurring.

After thorough consideration of this difficult case, Judge Wilson and I have

come to the view that Derrick Anthony DeBruce is entitled to habeas relief. This

is quite a serious thing, as Mr. DeBruce has been sentenced to death by the State of

Alabama. The federal statutory scheme put in place by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) was intended to, and does give

great deference to the judgment of a State court decision that adjudicated a federal

claim on the merits. See 28 U.S.C. § 2254(d). As it should. “AEDPA recognizes

a foundational principle of our federal system: State courts are adequate forums for

the vindication of federal rights.” Burt v. Titlow, ___ U.S. ___, ___, 134 S. Ct. 10,

15 (2013). At the same time, the Supreme Court has admonished federal judges

that, “[e]ven in the context of federal habeas, deference does not imply

abandonment or abdication of judicial review. Deference does not by definition

preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041

(2003).

None of the three judges on this panel takes this case lightly. 1 On the one

hand, Mr. DeBruce was convicted of killing an innocent man named Doug Battle,

1 In the same way, we fully recognize that the judges in Alabama, including Justice Wise (a member of the Alabama Court of Criminal Appeals at the time she considered Mr. DeBruce’s case) gave a high level of consideration to Mr. DeBruce’s case. The dissent says that Judge Wilson and I are “eager[] to assume” that Justice Wise is a “dolt.” See Maj. Op. at 65. Quite to the contrary, we respect and appreciate the Justice’s devotion to the demanding work of our profession in general, and Mr. DeBruce’s case in particular. 34 Case: 11-11535 Date Filed: 07/15/2014 Page: 35 of 117

who did nothing more than happen by the AutoZone Store in Talladega, Alabama

on August 16, 1991. On the other hand, Mr. DeBruce is himself set to die as a

result his conviction for killing Mr. Battle. None of the cases involving inmates

who are sentenced to death are easy, and Mr. DeBruce’s case is no exception. It

was filed in our court about three and one-half years ago on April 6, 2011. Four

judges of our court have considered the case during the time it has been pending

here. It came from the Northern District of Alabama, where it was filed on

September 7, 2004, and stayed pending for more than six years.

I write separately because I feel I must respond to the dissenting opinion,

and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I

“invent[ed] some facts,” “embellish[ed] the record,” exhibited a “lackadaisical

relationship with the evidence,” and “disregard[ed] AEDPA” in deciding this case.

See Maj. Op. at 2, 3, 40, 81. Judge Tjoflat is a nationally known and admired

judge who has served as a member of the federal judiciary since 1970, and as a

judge for the State of Florida before that. He is not only admired nationally, he is

also admired by Judge Wilson and me. Our work would be much quicker, easier

and happier if Judge Wilson, Judge Tjoflat and I all agreed on how the law applies

to this case—and every other case, for that matter. But if we do our jobs properly,

it is inevitable that we will have disagreements. And we disagree here. That being

the case, it is incumbent upon each of us, as a part of this difficult process, to lay

35 Case: 11-11535 Date Filed: 07/15/2014 Page: 36 of 117

out how we understand the law to apply to the specifics of Mr. DeBruce’s case.

Each of us has honestly assessed this case to the best of our ability, and the

opposing views expressed in our respective opinions were reached through a

sincere effort to properly perform the role required of us as judges of this Court.

36 Case: 11-11535 Date Filed: 07/15/2014 Page: 37 of 117

TJOFLAT, Circuit Judge, concurring, in part, and dissenting, in part.

Derrick DeBruce’s lawyers may or may not have been ineffective. I don’t

know, and my colleagues don’t either. We can’t know—despite two decades of

litigation in state and federal court—because DeBruce failed to develop a record of

what his attorneys did (or did not do) in preparation for the penalty phase 1 of his

capital murder trial. Without a thorough record, it is impossible for DeBruce to

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

range of reasonable professional assistance,” Strickland v. Washington, 466 U.S.

668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984), and impossible for this

court to say—as it must to grant relief under § 2254—that the State court’s

application of Strickland was “objectively unreasonable.” Williams v. Taylor, 529

U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000).

The State court denied relief because “DeBruce failed to meet his burden on

the majority of his claims,” most of which “were merely statements that were not

supported by any specific facts or evidence.” DeBruce v. State, 890 So. 2d 1068,

1083 (Ala. Crim. App. 2003), cert. denied Ex parte DeBruce, No. 1030617 (Ala.

Apr. 30, 2004). DeBruce claims his defense team performed an inadequate

mitigation investigation, but the record on that point is almost laughably thin,

taking up at most a few pages of the collateral hearing transcript. One of

1 I agree with the majority’s rejection of DeBruce’s guilt-phase ineffectiveness claim. 37 Case: 11-11535 Date Filed: 07/15/2014 Page: 38 of 117

DeBruce’s lawyers is totally unaccounted for, id. at 1085 (“We do not know the

extent of his involvement in the case or what investigation he conducted in

preparation for trial.”), the other lawyer was not questioned “about what

investigations he and [his colleague] conducted,” id., and no one at any point asked

the lawyers about their overall strategy. The District Court reviewed the same

record and reached the same conclusion, reasoning that DeBruce’s “cryptic,”

“stream of consciousness,” “incomplete,” and “factually and legally bare” petition

was “too conclusory to state an ineffectiveness claim.” DeBruce v. Campbell, No.

04-2669, ECF Doc. 31, at 22 (N.D. Ala. Aug. 4, 2010).

But now our court, evidently possessed of special insight, reverses and

grants habeas relief. My colleagues do so by inventing a theory of the case that is

both factually unsupported and facially implausible: that DeBruce’s seasoned

capital-defense lawyers walked into the penalty phase of trial without knowing

anything about the man they were defending. That claim would be dubious

standing alone, but here it must overcome the “doubly deferential” standard of

review federal courts apply when Strickland and AEDPA operate in tandem.

Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). To

grant relief under this demanding standard, the majority needs unambiguous

evidence that DeBruce’s attorneys were incompetent. There is no such evidence,

so instead the majority embellishes the record, disregards AEDPA, and succumbs

38 Case: 11-11535 Date Filed: 07/15/2014 Page: 39 of 117

to the “all too tempting” impulse “for a court, examining counsel’s defense after it

has proved unsuccessful, to conclude that a particular act or omission . . . was

unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

The majority’s approach marks a tiresome revival of errors for which our

sister circuits have been repeatedly and pointedly reversed. First, instead of

holding DeBruce to the burden of proving that his attorneys acted unreasonably,

the majority “assum[es] that counsel was ineffective where the record [is] silent,”

contra Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 13 (2013), drawing every

available inference on DeBruce’s behalf, and even inventing some “facts” of its

own, as part of what it calls “our review of the entire state court record”—

effectively de novo review. Second, the majority affords no deference to the State

court; the majority merely substitutes its own Strickland analysis, thereby

“treat[ing] the unreasonableness question as a test of its confidence in the result it

would reach under de novo review.” Contra Harrington v. Richter, __ U.S. __, 131

S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011). And third, in actually evaluating the

attorneys under Strickland, the majority relies not on any particular Supreme Court

case but merely on its “own sense of ‘prudence,’ and what appears to be [its] belief

that the only reasonable mitigation strategy in capital cases is to ‘help’ the jury

‘understand’ the defendant,” an approach the Supreme Court rejected as “flatly

inconsistent with Strickland’s recognition that ‘[t]here are countless ways to

39 Case: 11-11535 Date Filed: 07/15/2014 Page: 40 of 117

provide effective assistance in any given case.’” Cullen v. Pinholster, __ U.S. __,

131 S. Ct. 1388, 1407, 179 L. Ed. 2d 557 (2011) (citations omitted, quoting

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

These errors will do damage beyond this particular case. Because the

majority rules on an incomplete record, it is unable to say what the attorneys here

did “wrong” with any precision. Today’s decision thus offers no guidance to

lawyers in our circuit, who read our opinions to learn what is expected of them, or

to our colleagues on the District Court, who must wrangle “the proliferation of

ineffectiveness challenges” invited by the majority’s lackadaisical relationship

with the evidence. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Even more

troubling is the majority’s casual second-guessing of a reasoned State court

decision, which the majority overturns on little more than a hunch. Federal habeas

relief requires that the State court make “an error . . . beyond any possibility for

fairminded disagreement,” Harrington, __ U.S. at __, 131 S. Ct. at 787, but here it

seems the State court’s only “error” is disagreeing with the majority’s debatable

reading of an ambiguous record. Because “AEDPA prevents defendants—and

federal courts—from using federal habeas corpus review as a vehicle to second-

guess the reasonable decisions of state courts,” I respectfully dissent. Renico v.

Lett, 559 U.S. 766, 779, 130 S. Ct. 1855, 1866, 176 L. Ed. 2d 678 (2010).

40 Case: 11-11535 Date Filed: 07/15/2014 Page: 41 of 117

Part I reviews the factual background of the case. Part II highlights

deficiencies in the record that should, under AEDPA, preclude habeas relief. Parts

III and IV discuss the majority’s application of Strickland’s performance and

prejudice elements, respectively.

Because the majority omits much of the context surrounding DeBruce’s trial,

I will provide the details of DeBruce’s crime before describing the actions of his

attorneys. Reading the majority opinion, you might think DeBruce simply woke

up one morning to find himself on trial for capital murder. That isn’t so: the

AutoZone robbery—during which DeBruce fatally shot a man named Douglas

Battle, in the back, as Battle lay face-down on the floor—was the culmination of a

months-long spree of armed robberies committed or attempted by DeBruce and his

associates. DeBruce’s lawyers were deeply (and reasonably) concerned that their

client’s criminal history would prejudice DeBruce in the eyes of the jury, and the

lawyers labored to deprive the prosecutor of opportunities to put on evidence of

DeBruce’s other crimes.

This dynamic, present at virtually every stage of trial, is an essential part of

any effort “to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time,” Strickland, 466

U.S. at 689, 104 S. Ct. at 2065, and yet it goes unmentioned in today’s decision.

41 Case: 11-11535 Date Filed: 07/15/2014 Page: 42 of 117

The majority, sitting at a remove of two decades and hundreds of miles, has the

luxury of downplaying the less savory aspects of DeBruce’s background, but his

defense lawyers did not have that option, and this disconnect blinds the majority to

things that would have been obvious to anyone in the courtroom.

To take just one example, today’s opinion scolds the lawyers for not

presenting mitigation evidence about DeBruce’s supposed “resistance to joining

gangs,” Maj. Op. at 26, which sounds reasonable until one recalls that DeBruce

was only on trial in the first place because of his association with a prolific armed-

robbery gang. A lawyer on the ground would see immediately that the majority’s

preferred strategy would be an outright gift to the prosecutor—and would be, no

doubt, the basis of yet another ineffectiveness challenge, this time concerning what

an obviously terrible idea it is to “invite[] the strongest possible evidence in

rebuttal” with “[a] heavyhanded case to portray [petitioner] in a positive light.”

See Wong v. Belmontes, 558 U.S. 15, 25, 130 S. Ct. 383, 389, 175 L. Ed. 2d 328

(2009). This kind of backseat defense lawyering pervades the majority opinion.

The broader point is that Strickland claims are meaningless without context.

“[T]rial lawyers, in every case, could have done something more or something

different,” and “omissions are inevitable.” Chandler v. United States, 218 F.3d

1305, 1313 (11th Cir. 2000) (en banc). Whether those omissions are reasonable is

a contextual inquiry, turning on the options realistically available to the attorneys,

42 Case: 11-11535 Date Filed: 07/15/2014 Page: 43 of 117

and their reasons for picking some options over others. Accordingly, the

“longstanding case-by-case approach to determining whether an attorney’s

performance” was deficient requires that we start with a full understanding of the

case’s background. Rompilla v. Beard, 545 U.S. 374, 394, 125 S. Ct. 2456, 2469,

162 L. Ed. 2d 360 (2005) (O’Connor, J., concurring).

A.

In January 1991, DeBruce and an associate robbed a man named Bryan

White on the street. In addition to stealing White’s paycheck, the robbers took a

necklace with a distinctive gold pendant in the shape of a pistol. DeBruce

evidently liked the necklace, as he continued to wear it while he committed the

other crimes that would lead to his arrest for the AutoZone robbery. In August of

that year, the owner of a jewelry store in Sylacauga, Alabama, reported being

robbed by, among others, a man wearing a necklace with a gold pistol-shaped

pendant. A few days later, DeBruce and five other men attempted to rob the City

National Bank in Sylacauga. Armed with handguns, they entered the bank only to

abandon the plan and walk out when one of the robbers lost his nerve.

Surveillance cameras recorded their arrival and departure, and captured images of

DeBruce, still wearing the gold pistol-shaped pendant.

Unsatisfied, the men drove to Talladega and brainstormed places to rob.

They settled on a nearby AutoZone, and after driving past the store for

43 Case: 11-11535 Date Filed: 07/15/2014 Page: 44 of 117

reconnaissance, the men devised a plan: still armed, they would enter the store and

pretend to browse the merchandise. Eventually their ringleader, a man named

Charles Burton, would initiate the robbery, at which point the robbers would draw

their handguns and force all the customers and employees to the floor. If anything

went awry and an employee or customer became uncooperative and “needed

killing or anything,” Burton said he “would take care of it.” State Court—Trial

Transcript, Vol. 6, at 911. The men went through with the robbery, and as they

made their getaway DeBruce shot and killed one of the customers, Douglas Battle,

with whom DeBruce had some kind of verbal altercation.

The police quickly identified DeBruce and his associates as the robbers, in

part because the men had already been targets of an investigation (an effort the

police, with characteristic portentousness, called the “Trojan Horse Operation”).

The police compared their existing surveillance photos with video taken by the

security cameras at the City National Bank. One detective noticed that the

necklace DeBruce wore in the video matched the necklace stolen from Bryan

White, which had in turn been worn by one of the people who robbed the jewelry

store in Sylacauga. Witnesses to the AutoZone robbery identified several of the

men, including DeBruce, in police photo arrays. And a fingerprint recovered from

the AutoZone matched a print already on file for Charles Burton. Convinced they

had their men, the police arrested DeBruce and his associates on August 23, 1991.

44 Case: 11-11535 Date Filed: 07/15/2014 Page: 45 of 117

During a police interrogation, one of the robbers, LuJuan McCants, identified

DeBruce as the man who shot Battle. McCants agreed to cooperate with the State

and testify against DeBruce.

B.

Charged with capital murder, DeBruce was initially represented by a court-

appointed attorney. DeBruce’s mother, Jessie DeBruce, had little faith in the

court-appointed lawyer and approached a local criminal-defense attorney, Erskine

Mathis. “I didn’t know any of these people,” Mathis later testified at the Rule 32

evidentiary hearing. “[Jessie DeBruce] came in my office on this particular day,

and she was scared to death that her boy was going to end up in the electric chair,

and she was afraid that the young lawyer who had been appointed to represent him

would not do as good a job as somebody that she hired. I felt sorry for her.” State

Court—Collateral Transcript, Vol. 15, at 59. Mathis agreed to take over the case. 2

Mathis was at that time an established capital-defense attorney. Mathis

testified that “90 to 95” percent of his caseload was criminal. Id. at 170. He had

earned CLE credits dealing solely with capital litigation, and had handled

2 Mathis testified that he charged DeBruce’s family $10, 000 for the representation, and “they paid about $1, 500.” State Court—Collateral Transcript, Vol. 15, at 61. Curiously, other members of the DeBruce family continued to use Mathis’s legal services even after Derrick DeBruce’s conviction. The State court found it “interesting that Mathis testified at the postconviction evidentiary hearing that since DeBruce’s trial he has represented ‘several’ of DeBruce’s 10 siblings.” DeBruce, 890 So. 2d at 1081 n.3 (quoting State Court—Collateral Transcript, Vol. 15, at 173). 45 Case: 11-11535 Date Filed: 07/15/2014 Page: 46 of 117

“probably 10 or 12” capital cases before representing DeBruce. Id. at 171. Up to

that point, no client of his had been sentenced to death. “DeBruce was the very

first person I lost to the death penalty,” Mathis testified later. “Most of the other

cases were either capital murder verdicts with life without parole sentences or

felony murder verdicts. I won one or two during that period of time outright. . . . I

had been, I believe, very successful in capital litigation up to that point.” Id.

Jessie DeBruce’s fears about her son’s court-appointed attorney turned out

to be well-founded: when Mathis took over the case, he saw that almost nothing

had been done save for the filing of a discovery motion. Id. at 59–60. Mathis

“filed a fistful of motions,” id. at 65, and associated a second attorney, William

DelGrosso, as co-counsel once he “realized how big a task I had,” id. at 185. The

exact nature of DelGrosso’s involvement is not clear from the record because

“DelGrosso did not testify or execute an affidavit for purposes of the

postconviction proceedings.” DeBruce, 890 So. 2d at 1085. Mathis testified that

DelGrosso was “a tremendous help,” that he could not recall “any particular

division of duties” between them, that he was “sure” DelGrosso looked through the

discovery material before trial, that the two attorneys had worked together before,

and that DelGrosso had “probably tried as many capital murder cases as I have.”

State Court—Collateral Transcript, Vol. 15, at 179–80.

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The record is largely silent about what activities Mathis and DelGrosso

undertook in the time leading up to trial. We can infer from the record that the

lawyers had regular meetings with their client and their client’s mother: in a pre-

trial meeting with the court, Mathis made passing reference to “some information I

was given by this defendant’s mother prior to having the opportunity to speak at

length with him,” State Court—Trial Transcript, Vol. 1, at 12, though it is not clear

what “some information” refers to. Subsequently, Mathis said, “I have spoke [sic]

with him [i.e., DeBruce] many times.” Id.

It appears that whatever “information” Mathis received related to potential

mitigation evidence, because Mathis made those comments as part of a request that

the court arrange a pre-trial mental evaluation of his client, which Mathis said

“would be for the purposes of the punishment phase of the trial . . . if it comes

down to it.” Id. at 12–13 (emphasis added). We do not know—because Mathis

was never asked at the Rule 32 hearing—about the substance of his conversations

with his client or his client’s mother, or about his subsequent use of the pre-trial

mental evaluation, or about his overall strategy for the penalty phase. All we know

is that the court, in response to Mathis’s request, assigned a psychologist, Gary

Garner, to conduct a pre-trial mental evaluation of DeBruce, and that his report

47 Case: 11-11535 Date Filed: 07/15/2014 Page: 48 of 117

(hereinafter the “Garner Report”) now plays an outsize role in DeBruce’s

postconviction litigation.3

The Garner Report is a short document labeled “Mental Status Exam.” It

conveys, as relevant to this appeal, that:

• “He [i.e., DeBruce] reports having to be hospitalized on two occasions during his jail stay for what he describes as ‘throwing up.’” • “He reports a history of problems since childhood including alcohol and marijuana abuse.” • “He has attempted suicide four times.” • “He denies any prior mental health treatment or psychiatric hospitalization.” • “Mr. DeBruce admitted to on going [sic] problems in school.” • “He refused special education and dropped out of school in the seventh grade at age 16.” • “He admits that his father is probably an alcoholic.” • “Mr. DeBruce was oriented and aware in all spheres. His memory appeared fair for past and recent experiences and good for immediate impressions. General grasp and recall appeared fair. Mr. DeBruce’s intellectual ability appeared to be in the low average range.”

Garner Report at 1. At the Rule 32 hearing, no one asked Mathis about the Garner

Report.

As for the rest of the attorneys’ preparatory activities, we know very little.

Mathis was asked—at the Rule 32 hearing—a few brief, narrow questions about

his investigation of DeBruce’s background, and he gave brief, narrow answers on

which DeBruce (by then represented by new lawyers) never followed up. Mathis

3 Gary Garner did not testify at trial or at the Rule 32 hearing. At the end of his report, he identified himself as “Gary L. Garner, M.S.,” and listed his title as “Co-ordinator Talladega Mental Health Center.” 48 Case: 11-11535 Date Filed: 07/15/2014 Page: 49 of 117

testified that he had received a banker’s box full of discovery materials and that he

had reviewed the contents. Mathis also testified that he had no recollection of

seeing a videotape of LuJuan McCants’s police interrogation, but the Rule 32

judge did not find Mathis credible on this point: “The Court finds that Erskine

Mathis, contrary to his recollection, viewed the videotape in advance of trial.” See

DeBruce, 890 So. 2d at 1087 (quoting the circuit court ruling). Finally, Mathis

testified about three specific investigative avenues he did not pursue: he did not

hire an outside investigator, he did not gather medical records, and he did not

gather academic records.

C.

The guilt phase of DeBruce’s trial began on February 11, 1992. The defense

team’s objective was to avoid the capital murder conviction: they recognized that

the State’s case for death was built entirely around LuJuan McCants’s

identification of DeBruce as the shooter inside the AutoZone. If they could cast

doubt on the credibility of that identification—by suggesting that it was in fact

McCants who had shot Battle, taken a plea, and then fingered DeBruce to save

himself—then DeBruce might be convicted of felony murder, rather than capital

murder, and thereby evade a death sentence. But the defense lawyers also

understood that impeaching McCants risked opening the door to testimony about

49 Case: 11-11535 Date Filed: 07/15/2014 Page: 50 of 117

all of DeBruce’s criminal activity preceding the AutoZone robbery, which the

attorneys recognized to be prejudicial.

Mathis tried to thread the needle. Anticipating that the prosecutor would ask

McCants about the earlier robberies, Mathis moved the court to instruct the

prosecutor, on direct examination, not to elicit from McCants anything about “any

other crimes for which my client was not on trial here today” because “to get

involved in these various robberies that they could very well talk about . . . would

be highly prejudicial to my client in this particular situation and would far

outweigh any probative value it may have regarding this crime for which he is on

trial.” State Court—Trial Transcript, Vol. 6, at 892.

Mathis also sought to prevent the prosecutor, on redirect examination, “from

going into these various [other] crimes . . . if and when I attempt to impeach

[McCants] based on a[ ] [plea] agreement, which [McCants] ha[s] reached with the

State of Alabama.” Id. at 895. Mathis was concerned that the State’s cooperation

agreement with McCants encompassed both the AutoZone and City National Bank

crimes and even suggested that the “agreement was designed . . . so that it would

give the prosecuting attorney . . . an opportunity to stand in and argue that if I ask

about that agreement, I’m opening the door for him to get into the [attempted]

robbery in Sylacauga.” Id. at 895–96.

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The prosecutor denied that the agreement was so designed and said it was

“fine with me to leave out the . . . the attempted robbery [of the City National

Bank] in the agreement.” Id. at 896. The prosecutor went on to warn, however,

that there was a limit. When the police first questioned McCants, he had initially

denied knowing anything about the AutoZone or City National Bank crimes. He

had only identified DeBruce as the AutoZone shooter after the police said they

might charge McCants with the shooting. At trial, the prosecutor warned that if

Mathis tried in cross-examination to bring out that McCants had initially denied

knowing about the robbery, then the prosecutor would consider the door opened to

evidence of other crimes: “if on cross examination on McCants you start talking

about his statement of last week, or the week before . . . I’m entitled to show that

he gave a statement back on August 24th,” id. at 897–98, referring to a videotape

of the police interrogation of McCants.

Mathis replied that he had no intention of bringing up McCants’s earlier

denials:

MR. MATHIS: Oh, okay. I know what you are talking about. You just don’t want me trying to allege that [McCants] just come up with this story last week. [PROSECUTOR]: That’s right. MR. MATHIS: Okay, don’t worry about that. [PROSECUTOR]: If you do that, then I’m going to try to get into the August statement. MR. MATHIS: I’m not doing it.

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Id. at 898. At the end of this exchange about the scope of McCants’s testimony,

the court instructed McCants “not to give any testimony relative to any other

crimes that might have occurred except for the AutoZone charge here” or testify

about his plea agreement with the State “except the agreement relative to the

AutoZone case here in Talladega.” Id. at 899–900.

Having secured this instruction, Mathis attempted to impeach McCants’s

testimony without opening the door to testimony about the other crimes. He asked

McCants about the existence of the plea agreement, and then asked, point blank, if

McCants had shot Douglas Battle. McCants said he had not. Mathis asked if

McCants had bragged to DeBruce’s niece, Kiawatta, about shooting Battle.

McCants again said he had not. Mathis subsequently called Kiawatta DeBruce,

who testified that McCants had confessed to shooting Battle in a conversation after

the robbery.

Mathis focused on this alternate-shooter theory in his closing argument,

suggesting that McCants had taken a plea and testified against DeBruce in order to

save himself, and referenced Kiawatta DeBruce’s testimony to further undermine

McCants’s credibility. Later, at the Rule 32 hearing, the prosecutor testified that

he thought Mathis had done such a good job undermining McCants that he had

been afraid Mathis’s strategy might work. But it didn’t work: on Febuary 13,

1992, the jury convicted DeBruce of capital murder.

52 Case: 11-11535 Date Filed: 07/15/2014 Page: 53 of 117

D.

The penalty phase of the trial began and ended the next day. The State, in

seeking the death penalty, relied on evidence from the guilt phase of trial and on

two aggravating factors: that DeBruce had pled guilty on September 13, 1991, to

second-degree robbery for the White theft, and that DeBruce had been convicted of

capital murder for the killing of Douglas Battle.

The State appeals court found that the defense lawyers’ “strategy in the

penalty phase was to beg for mercy.” DeBruce, 890 So. 2d at 1093. The defense

called DeBruce’s mother, Jessie DeBruce. She testified that Derrick was the

youngest of her eleven children; all six of his brothers were either in or had been in

prison. When DeBruce was a child, Jessie DeBruce said she worked cleaning

houses while DeBruce’s father worked construction, making “a very small

amount” of money. At one point she described the family’s rented house as

“[u]nfit to live in.” She said that DeBruce graduated from high school and

attended the University of Alabama–Birmingham. She said that DeBruce had a

son. Jessie DeBruce expressed love for her son, said that there was “good” in him,

and begged the jury to spare his life.

Jessie DeBruce had already been excused when she volunteered that she had

“something else” to say. Mathis began redirect examination, and she said that

DeBruce’s mind “is not good.” State Court—Trial Transcript, Vol. 7, at 1138.

53 Case: 11-11535 Date Filed: 07/15/2014 Page: 54 of 117

She claimed DeBruce had previously been treated for a mental disorder “[b]ecause

we had a lot of problems with him when he was in school.” Id. at 1139. She went

on to describe various incidents during which DeBruce “would get nervous and get

to shaking,” along with an incident during which the family called the police “to

talk to him.” Id. She said, finally, that her son was “easily led.” Id.

This testimony appears to have caught the attorneys off-guard. The court

went into recess and the prosecutor demanded that he be allowed to call Gary

Garner, the psychologist who had evaluated DeBruce before trial. The State

believed that Garner’s report contradicted what Jessie DeBruce had said: for

example, according to the report, DeBruce had never been treated for a mental

disorder. The prosecutor also objected to the statement that DeBruce was “easily

led,” and asked to call one of the cooperating witnesses to testify that after the

murder DeBruce had tried to arrange for LuJuan McCants to “take the murder rap

since [McCants] is a juvenile”—apparently on the theory that this would show

DeBruce to be an active, knowledgeable participant in the group’s criminal

activities. See id. at 1146–48. DelGrosso opposed both proposals, arguing that the

Garner Report was only hearsay and could not be used to impeach Jessie

DeBruce’s testimony. The court agreed with the prosecutor, and indicated that

Garner should testify. In one of this record’s many unexplained gaps, however,

54 Case: 11-11535 Date Filed: 07/15/2014 Page: 55 of 117

this issue was never resolved: Garner did not testify, and no one mentioned the

matter again at trial.

The court allowed DeBruce to make a direct statement to the jury. DeBruce

asked the jury to spare his life and allow him to see his son grow up. Id. at 1169–

70. Thereafter, DelGrosso presented DeBruce’s closing argument to the jury.

DelGrosso appealed to the jury as parents, asking them to view DeBruce as a “kid”

who did not deserve to die just because he had done something “stupid.” Id. at

1172.

The jury recommended the death penalty by a vote of 11 to 1, and the court

scheduled the sentencing for March 13, 1992, ordering the preparation of a

presentence report in the interim. At sentencing, Mathis argued that the court

should sentence DeBruce to a term of life without parole so that he could continue

to see his family. The court then addressed DeBruce, and inquired about his

health. DeBruce said it was “fair.” Mathis said that DeBruce was suffering from

“extreme stomach problems,” which his incarceration was aggravating. Id. at

1214. The court sentenced DeBruce to death. The court found the two

aggravating circumstances the State relied upon, and one statutory mitigator:

DeBruce’s age of twenty.

55 Case: 11-11535 Date Filed: 07/15/2014 Page: 56 of 117

DeBruce makes the startling assertion that his attorneys failed “to conduct

any investigation into available mitigating evidence,” Pet’r’s Br. at 63 (emphasis in

original), but his claim is demonstrably false. Mere paragraphs later, in the same

brief, DeBruce concedes that, actually, his lawyers interviewed him and

interviewed his mother (though DeBruce won’t say what they talked about) and

also admits his lawyers arranged for a mental examination and report by a court-

appointed psychologist. When the attorneys requested that examination, they told

the trial judge it “would be for the purposes of the punishment phase of the trial.”

State Court—Trial Transcript, Vol. 1, at 12–13. Thus, even on the scant record

before us, it’s clear the lawyers were aware of and acting on “the need for defense

counsel to conduct some sort of mitigation investigation,” though the scope of that

investigation is unclear. Porter v. McCollum, 558 U.S. 30, 40, 130 S. Ct. 447, 453,

175 L. Ed. 2d 398 (2009) (per curiam) (emphasis in original).

The majority ultimately endorses a watered-down version of DeBruce’s

claim: that the attorneys should have done more to investigate mitigating evidence.

But, incredibly, DeBruce can’t prove that his attorneys didn’t do more, nor can he

prove that further investigation would have told the lawyers anything they didn’t

already know. The majority thus transgresses a basic principal of habeas: “[t]he

petitioner carries the burden of proof.” Pinholster, __ U.S. at __, 131 S. Ct. at

1398. This burden has teeth, and DeBruce’s failure to produce a thorough record

56 Case: 11-11535 Date Filed: 07/15/2014 Page: 57 of 117

is—by itself—a robust barrier to relief. See Titlow, __ U.S. at __, 134 S. Ct. at 19

(Sotomayor, J., concurring) (“Had [the petitioner] made a better factual record—

had she actually shown, for example, that [the defense attorney] failed to educate

himself about the case . . . then she could well have prevailed.”).

Here, the majority overlooks three enormous gaps in the record. First, we do

not know anything about the second-chair attorney, DelGrosso, who may have

made investigations not reflected in the record. Second, DeBruce’s case against

Mathis is selective and at best circumstantial, with no inquiry into what the

attorneys knew about their client or about their overall mitigation strategy. And

third, the lawyers were never questioned about information in the Garner Report—

an omission that does not stop the majority from concluding, with zero evidence,

that the attorneys never read it.

The first and most serious hole in the record is DeBruce’s omission of half

his defense team. DeBruce’s briefing implies that Mathis was his only lawyer,

when in fact there was a second attorney, William DelGrosso, whom DeBruce has

tried to erase from history. DeBruce did not call DelGrosso to testify at the Rule

32 hearing, did not present evidence about DelGrosso’s pretrial activities, did not

question Mathis about DelGrosso’s involvement, and does not even mention

DelGrosso in his brief, except in the prefatory “Certificate of Interested Persons,”

57 Case: 11-11535 Date Filed: 07/15/2014 Page: 58 of 117

where DelGrosso is identified as “co-counsel for Derrick DeBruce at trial.” Pet’r’s

Br. at C-2. This omission is inexcusable, particularly because it was DelGrosso,

not Mathis, who delivered the opening statement and closing argument to the jury

at the penalty phase of trial—the phase during which DeBruce says his attorneys

were ineffective. See State Court—Trial Transcript, Vol. 7, at 1105–10, 1171–73.

DeBruce’s failure to account for DelGrosso is fatal to his ineffectiveness

claim. “It should go without saying that the absence of evidence cannot overcome

the ‘strong presumption that counsel’s conduct [fell] within the wide range of

reasonable professional assistance,’” and here we have no evidence at all. Titlow,

__ U.S. at __, 134 S. Ct. at 17 (citation omitted). For all we know, DelGrosso did

everything DeBruce says his attorneys failed to do, and there may be other

mitigation investigations we know nothing about. Indeed, Strickland requires that

we presume DelGrosso acted reasonably and then look to DeBruce to rebut that

presumption. “[W]here the record is incomplete or unclear about [the attorney’s]

actions, we will presume that he did what he should have done.” Williams v.

Head, 185 F.3d 1223, 1228 (11th Cir. 1999). DeBruce cannot rebut Strickland’s

presumption because he says nothing at all about DelGrosso, and the inquiry is

therefore at an end. The State court saw this clearly:

DeBruce was represented by two attorneys at trial; however, only one attorney testified at the postconviction hearing. DelGrosso did not testify or execute an affidavit for purposes of the postconviction proceedings. We do not know the extent of his involvement in the 58 Case: 11-11535 Date Filed: 07/15/2014 Page: 59 of 117

case or what investigation he conducted in preparation for trial. Neither was Mathis questioned about what investigations that he and DelGrosso conducted.

DeBruce, 890 So. 2d at 1085 (emphasis added).

The State court’s findings are more than reasonable; under AEDPA, they are

bulletproof. AEDPA only permits federal habeas relief in two circumstances: if

the State court’s decision was “based on an unreasonable determination of the

facts,” or if the State court’s decision was “contrary to, or involved an

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

Supreme Court. § 2254. DeBruce cannot meet either condition. The State court’s

fact-finding is obviously correct: there is simply no evidence, one way or the other,

about DelGrosso’s mitigation activities. And it therefore cannot have been

unreasonable, as a legal matter, to say that DeBruce failed to carry his burden of

proof concerning DelGrosso. There is thus no lawful avenue for federal habeas

relief.

The majority sets the State court ruling aside without even mentioning,

much less applying, § 2254. Instead, the majority undertakes what it calls “our

review of the entire state court record” and constructs, on its own initiative, an

argument on DeBruce’s behalf. That is worth repeating. DeBruce does not argue

that DelGrosso rendered ineffective assistance; instead, he simply ignores his

second attorney, and hopes that we do the same. Instead of acknowledging this

59 Case: 11-11535 Date Filed: 07/15/2014 Page: 60 of 117

critical flaw in DeBruce’s petition, the majority—on what is supposed to be our

highly deferential posture of AEDPA review—scours the record, sua sponte, and

makes the argument for him. That is simply out of bounds. What’s more, the

argument the majority writes for DeBruce is exceedingly weak, and would not

even rebut the Strickland presumption on de novo review. I will consider first the

facts, and then the law.

1.

The State court did not make “an unreasonable determination of the facts”

concerning DelGrosso. § 2254(d)(2). The court said—accurately—that “[w]e do

not know the extent of his involvement in the case or what investigation he

conducted in preparation for trial.” DeBruce, 890 So. 2d at 1085. The majority

chooses to discount this hole in the record for reasons that do not withstand

scrutiny.

First, the majority, having undertaken a “review of the entire state court

record,” says that “Mathis was lead counsel and DelGrosso played only a minor

role” in DeBruce’s defense. Maj. Op. at 19. As a threshold matter, I do not know

where the majority’s “review of the entire state court record” standard comes from,

but it sounds an awful lot like de novo review. It certainly isn’t AEDPA, because

§ 2254 only asks whether the State court’s factual finding was reasonable, not

whether we would make the same finding were we to consider the issue afresh.

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“[A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first

instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, __, 175 L. Ed. 2d

738 (2010). In applying its own “review of the entire state court record” instead of

§ 2254, the majority asks the wrong question.

The majority then delivers the wrong answer, because its conclusion—that

“Mathis was lead counsel and DelGrosso played only a minor role”—is an obvious

non sequitur. Even assuming DelGrosso played a minor role in the overall

defense, it does not follow that he did nothing to prepare specifically for the

penalty phase, which is the subject of DeBruce’s Strickland claim. I suppose a

placekicker plays “only a minor role” in the grand scheme of a football game, but

his efforts nonetheless matter a great deal. Similarly, DelGrosso appears to have

focused his energies on the penalty phase, as evidenced by the fact that he

delivered the opening statement and closing argument—though of course we can’t

be sure, because DeBruce presents no evidence about DelGrosso. In any event, the

question under Strickland is not whether DelGrosso’s role was a “minor” or

“major” one, but whether he contributed to the attorneys’ mitigation investigation,

and if so, how. On that question—which is to say, on the relevant question—the

record is totally silent.

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Protesting perhaps a little too much, the majority submits no fewer than nine

numbered facts to support the (uncontroversial) proposition that DelGrosso was the

second-chair attorney on the defense team. The majority’s list actually serves to

underscore how little we know about DelGrosso: eight of the nine items are about

Mathis, not DelGrosso, and not one of the facts addresses the actual question,

which is what DelGrosso did to prepare for the penalty phase of trial. The

majority’s “proof” is thus a parade of irrelevancies: “Mathis’s name alone appears

on all of DeBruce’s pretrial motions”; “Mathis, not DelGrosso, cross examined all

of the state’s guilt phase witnesses”; “Mathis presented DeBruce’s case-in-chief

during the guilt phase”; and so on. Maj. Op. at 19 (emphasis added). Irrelevant

facts, delivered in bulk, are still irrelevant. Nothing here establishes, or even

suggests, that DelGrosso was ineffective. As the State court rightly concluded, we

simply do not know.

The majority’s other argument for ignoring DelGrosso rests on a flagrant

misreading of the record. The majority says we needn’t worry about DelGrosso

because Mathis testified at the Rule 32 hearing “that DelGrosso’s assistance in

investigating for either the guilt or penalty phases consisted of helping Mathis sort

through a banker’s box of discovery material.” Maj. Op. at 17 (emphasis added).

The word “consisted” does all the work in that sentence: the reader is meant to

understand that Mathis said DelGrosso did nothing beyond looking through the

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banker’s box. But Mathis never said that; nobody even asked that question. Here

is the transcript:

[THE STATE]: Mr. Mathis, did you have the assistance of—you did have the assistance of co-counsel in this case? [MATHIS]: I got Bill DelGrosso, and he was a tremendous help. [THE STATE]: To what extent did you divide your duties in preparing for the case? [MATHIS]: You grab a pile and I grab the other. I don’t think there was any particular division of duties. We were just working together trying to get all of this done. [THE STATE]: Did he look through discovery also? [MATHIS]: Ma’am, I’m sure he did. We were right there in the same building. We had the same office. We’re in the same building, and each of us had equal access. [COUNSEL FOR DEBRUCE]: I would object. I would ask that the witness answer whether he knows for a fact or not whether Mr. DelGrosso actually did look through the discovery material. THE COURT: If he doesn’t remember exactly, he can give you a judgment. Did y’all work together on the case? [MATHIS]: I’m sure he looked through it, Judge. THE COURT: Y’all worked together on other cases? [MATHIS]: Yeah. THE COURT: What kind of experience did he have? [MATHIS]: He’s probably tried as many capital murder cases as I have. THE COURT: At that time? [MATHIS]: Oh yeah. State Court—Collateral Appeal Transcript, Vol. 15, at 179–80. There is no basis

in this testimony for the majority’s claim that DelGrosso’s work “consisted,” in its

entirety, of a review of discovery materials. Mathis was responding to a specific

question: he was “sure” DelGrosso reviewed the box of documents. But that does

not establish—and Mathis did not say—that this was the only thing DelGrosso did.

Nobody asked about that. 63 Case: 11-11535 Date Filed: 07/15/2014 Page: 64 of 117

In sum, even after its improper “review of the entire state court record,” the

majority comes up empty on the question of DelGrosso’s performance. The State

court was manifestly correct in saying that we simply do not know what he did.

2.

The State court’s decision was not contrary to, or an unreasonable

application of, Supreme Court precedent. § 2254(d)(1). The legal principle here is

not complicated or controversial: a habeas petitioner who fails to document his

attorney’s actions cannot successfully claim that the attorney was ineffective. The

Supreme Court just last term rejected an ineffectiveness claim because of the

petitioner’s “failure to present enough evidence of what [the attorney] did or did

not do.” Titlow, 134 S. Ct. at 18 (Sotomayor, J., concurring); see also Burger v.

Kemp, 483 U.S. 776, 793, 107 S. Ct. 3114, 3125, 97 L. Ed. 2d 638 (1987)

(refusing to draw an inference on petitioner’s behalf where petitioner “has

submitted no affidavit from that lawyer establishing that he would have offered

substantial mitigating evidence if he had testified.”); Kimmelman v. Morrison, 477

U.S. 365, 384, 106 S. Ct. 2574, 2588, 91 L. Ed. 2d 305 (1986) (“Counsel’s

competence . . . is presumed, and the defendant must rebut this presumption by

proving that his attorney’s representation was unreasonable under prevailing

professional norms and that the challenged action was not sound strategy.”

(emphasis added, citations omitted)).

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This rule is a familiar one to Alabama judges. “It is extremely difficult, if

not impossible, to prove a claim of ineffective assistance of counsel without

questioning counsel about the specific claim, especially when the claim is based on

specific actions, or inactions, of counsel that occurred outside the record.”

Broadnax v. State, 130 So. 3d 1232, 1255 (Ala. Crim. App. 2013). And I know for

a fact that this is the rule our court applies: “An ambiguous or silent record is not

sufficient to disprove the strong and continuing [Strickland] presumption.”

Chandler, 218 F.3d at 1314 n.15.

Sometimes this rule is harsh. In one case, the petitioner’s attorney died

before the collateral hearing, and the petitioner was thus physically incapable of

questioning the attorney about his actions at trial. See Callahan v. Campbell, 427

F.3d 897, 933 (11th Cir. 2005). We nonetheless denied relief: “Because [the

lawyer] passed away before the Rule 32 hearing, we have no evidence of what he

did to prepare for the penalty phase of [the petitioner’s] trial. In a situation like

this, we will presume the attorney did what we should have done, and that he

exercised reasonable professional judgment.” Id. (footnotes and citations omitted).

One judge on the Callahan panel expressed serious reservations about the adequacy

of counsel’s mitigation investigation, noting “[t]here is no evidence [the lawyer]

performed any substantial investigation into [the petitioner’s] background, or

attempted to call family members other than [the petitioner’s] aunt,” but there was

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no evidence either way, and “since we are bound by our circuit precedent, we

presume [the lawyer] did” what he should have done. Id. at 938–39 (Wilson, J.,

concurring) (emphasis added). The same reasoning applies to DelGrosso in this

case.

We know more about Mathis than we do about DelGrosso, but we do not

know enough to overcome the Strickland presumption. DeBruce’s entire case

against Mathis is drawn from about a page and a half of superficial Rule 32

testimony. Mathis was asked about three things he did not do, but was never asked

about his overall strategy for the penalty phase, or about how much he learned

about DeBruce’s life from other sources (like DeBruce himself, or DeBruce’s

mother), or even whether he would have put on a different mitigation case if he

could do it all over again. The majority nonetheless treats this testimony as

incontrovertible proof of ineffectiveness, and adopts DeBruce’s theory of the case

wholesale.

DeBruce’s theory is as follows: “When asked to explain his failure to

investigate, Mathis cited time and resource constraints—not strategic concerns.”

Pet’r’s Br. at 67 (emphasis added). DeBruce then cites the Rule 32 transcript. A

casual reader would take “failure to investigate” to refer to the whole scope of an

attorney’s investigation; DeBruce means us to infer that behind the citation we will

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find Mathis both conceding a total “failure to investigate” and attributing it to a

lack of time. Here, then, is the entirety of the testimony that supposedly

establishes a total “failure to investigate”:

Q: And do you normally have a social worker or investigator or other specialist help you gather evidence? [MATHIS]: We normally have an investigator who does that, an investigator plus the other people in my office. Q: And does that person normally gather the client’s school records? [MATHIS]: Yes. We would normally subpoena—we would find out from the client which schools he attended and immediately issue subpoenas for all the school records, and we would do that and set a date way ahead of trial so that the stuff would be brought to the courthouse so we could get it. Q: And does that person normally interview siblings and pastors and teachers and other litigation witnesses? [MATHIS]: Yes. Q: And did you have such a person working with you on this case? [MATHIS]: No. We just didn’t have time. We did not have the time. We didn’t do it. Q: Did you have time to gather Mr. DeBruce’s school records yourself? [MATHIS]: None. Q: You didn’t have a strategic reason for not doing so? [MATHIS]: None. Q: Did you have time to gather medical records yourself? [MATHIS]: We got in it too late. We did good to prepare with what we did do. Q: You didn’t have a strategic reason? [MATHIS]: No. State Court—Collateral Transcript, Vol. 15, at 136–37.

Now, bearing in mind that this is the only testimony about the mitigation

investigation, we have three factual claims: (1) Mathis did not hire an outside

investigator; (2) Mathis did not collect school records; and (3) Mathis did not

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collect medical records. DeBruce cites (and the majority credits) this testimony as

establishing a complete “failure to investigate,” on all fronts, by both attorneys.

Pet’r’s Br. at 67.

Plainly, those things are not the same. Are they close? Maybe. Relevant?

Surely. But dispositive, such that we can say that DeBruce carried his burden?

Absolutely not. First of all, the argument is highly selective: it fails to account for

the possibility that the attorneys took steps other than the three Mathis was asked

about, or that the attorneys learned of the relevant information from other sources.

Second, DeBruce’s questioning of Mathis sheds no light on the attorneys’ strategy

for the penalty phase, or on whether DeBruce’s supposedly “new” mitigation

evidence would have caused them to change their strategy.

If DeBruce wants to hang his hat on the claim that his attorneys did nothing,

Strickland requires that he actually account for their time. It is not enough to

cherry-pick particular omissions and then extrapolate from those a total “failure to

investigate.” See Pet’r’s Br. at 67. “The [Strickland] presumption impacts on the

burden of proof and continues throughout the case, not dropping out just because

some conflicting evidence is introduced.” Chandler, 218 F.3d at 1314 n. 15. The

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need for reviewing courts to be “vigilant and independent,” Harrington, __ U.S. at

__, 131 S. Ct. at 780, in holding petitioners to their burden is especially acute when

we evaluate attorney-ineffectiveness claims. No one is better positioned to

document the activities of a defendant’s attorneys than the defendant himself: he

has privileged access to their work product, and his recollections can be crucial

if—as frequently happens—new attorneys take over the case on collateral attack.

Equally obvious is the danger that, if petitioners are not required to produce a

thorough record, they might be tempted to omit information that weakens their

claim of ineffectiveness. Strickland’s requirement that we presume effectiveness

until we are convinced otherwise plays an important role in protecting the integrity

of habeas proceedings: by enforcing it, courts ensure honest and meaningful

review. Lax enforcement, on the other hand, “would encourage the proliferation of

ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant

would increasingly come to be followed by a second trial, this one of counsel’s

unsuccessful defense.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

Here, brief testimony that Mathis did not take a particular action does not

establish that the attorney (or his unmentioned co-counsel) took no action at all,

nor does Strickland allow us to extrapolate from a decision not to take action X

that the attorney must have also not taken action Y or Z. Mathis’s testimony

certainly does not establish that “Mathis [or DelGrosso] did not interview any

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members of DeBruce’s family,” Pet’r’s Br. at 64, or that “Mathis [or DelGrosso]

never examined the [Garner] report,” id. at 65, claims that DeBruce asserts (and

the majority accepts) without citation. Nor does the testimony address the

possibility that the attorneys pursued avenues of investigation other than the three

narrow ones Mathis was asked about. See Titlow, __ U.S. at __, 134 S. Ct. at 18

(“The record does not reveal how much [the defense attorney] was able to glean

about respondent’s case from other sources; he may well have obtained copies of

the critical materials from prosecutors or the court.”). Mathis was not even able to

say definitively that the unnamed “other people in [his] office” did not help him

prepare for trial: “I think at that time all we had was me and Bill [DelGrosso]. I

don’t think we had anybody else helping us on this case.” State Court—Collateral

Transcript, Vol. 15, at 180–81 (emphasis added). The majority—in a neat

demonstration of its methodology—says that Mathis’s hazy recollections make it

“clear that the only person Mathis had helping him was DelGrosso,” Maj. Op. at 18

(emphasis added), even though the Supreme Court rejected an identical argument

in Pinholster: “[A] handful of post-hoc nondenials by one of [petitioner’s] lawyers”

is not enough to overcome Strickland’s presumption that both lawyers performed

effectively. See __ U.S. at __, 131 S. Ct. at 1406.

The attorneys may well have gotten everything they needed from their

client, or their client’s mother. We know that DeBruce met with his lawyers

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“many times,” but we do not know what they talked about. See State Court—Trial

Transcript, Vol. 1, at 12. The content of these conversations is important because

the reasonableness of a lawyer’s investigation is shaped by information and

guidance from his client. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“In

particular, what investigation decisions are reasonable depends critically on

[information supplied by the defendant].”). DeBruce offers no documentary record

of his attorneys’ investigation—no billing records, no time sheets, no notes,

nothing—and so he has to rely on testimonial evidence. The universe of possible

witnesses to the attorney-client conversations is a limited one: it could come either

from the two lawyers, from DeBruce’s mother (who retained Mathis), or from

DeBruce himself.

Neither DeBruce nor his mother testified at the Rule 32 proceeding. In a

criminal case, of course, DeBruce’s failure to testify would be irrelevant. See U.S.

Const. amend. V; Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d

106 (1965). But habeas corpus is a civil action, Hilton v. Braunskill, 481 U.S. 770,

776, 107 S. Ct. 2113, 2119, 95 L. Ed. 2d 724 (1987) (“Our decisions have

consistently recognized that habeas corpus proceedings are civil in nature.”), and

the burden of proof shifts from the State to the petitioner, who has to prove “that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,” Strickland, 466 U.S. at 687,

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104 S. Ct. at 2064. DeBruce claims that his attorneys knew nothing about his

background when they made decisions about mitigation, but to prove that he would

need to shed some light on what he (or his mother) told the attorneys.

Presumably, DeBruce chose not to testify at the Rule 32 hearing because he

wanted to avoid cross-examination about other crimes—like the attempted armed

robbery of the City National Bank in Sylacauga—and because Alabama does not

have a statute of limitations for violent crimes. See Ala. Code § 15-3-5(a)(2).

Nonetheless, DeBruce knows what he said to his lawyers and what they said to

him, and he has not shared that information with the Rule 32 court or with us. Nor

did he call his mother or DelGrosso as witnesses, or ask Mathis about the

conversations they had before trial. It was within DeBruce’s power to document

these critical attorney-client conversations, and he failed to do so.

At common law, a plaintiff who failed to call an essential witness made

himself vulnerable to the so-called “missing witness rule,” whereby a court can

draw an inference against a party who inexplicably fails to produce a witness

whose testimony would be crucial to resolving the case. See Graves v. United

States, 150 U.S. 118, 121, 14 S. Ct. 40, 41, 37 L. Ed. 1021 (1893) (“The rule, even

in criminal cases, is that, if a party has it peculiarly within his power to produce

witnesses whose testimony would elucidate the transaction, the fact that he does

not do it creates the presumption that the testimony, if produced, would be

72 Case: 11-11535 Date Filed: 07/15/2014 Page: 73 of 117

unfavorable.”); Creel v. Comm’r, 419 F.3d 1135, 1142 (11th Cir. 2005) (“It is well

settled that the production of weak evidence when strong is available can lead only

to the conclusion that the strong would have been adverse.” (quoting Raley, Inc. v.

Kleppe, 867 F.2d 1326, 1329 (11th Cir. 1989)). 4 Strickland embodies a modern

missing witness rule insofar as it operates as a kind of evidentiary presumption:

“[C]ounsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment,” and a

petitioner cannot prevail unless he convincingly proves otherwise. 466 U.S. at

690, 120 S. Ct. at 2066.

4 See also Sparkman v. Comm’r, 509 F.3d 1149, 1155 n.5 (9th Cir. 2007) (“Where the burden of production rests on a party, a court may, at its discretion, presume or infer from that party’s failure to call a witness that the testimony the witness would have offered would not favor that party.”); United States v. Pagan-Santini, 451 F.3d 258, 267 (1st Cir. 2006) (“[A missing witness] instruction may be given where a party controls or has peculiar access to a witness and, in the circumstances, it may be reasonable to suppose that the party would produce the witness unless the testimony was unfavorable.”); Streber v. Comm’r, 138 F.3d 216, 221–22 (5th Cir. 1998) (“In general, a court may draw a negative inference from a party’s failure to produce a witness ‘whose testimony would elucidate the transaction.’” (quoting Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 41, 37 L. Ed. 1021 (1893))); Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983) (“The unexplained failure or refusal of a party to a judicial proceedings to produce evidence that would tend to throw light on the issues authorizes, under certain circumstances, an inference or presumption unfavorable to such party.”); United States v. Tucker, 552 F.2d 202, 210 (7th Cir. 1977) (“Like all sound inferences, the missing witness inference is rooted in notions of common sense, specifically that where a party fails to call an available witness with important and relevant knowledge, it may be that he has something to fear in the witness’ testimony.”); see generally 2 McCormick on Evidence § 264 (7th ed.) (“When it would be natural under the circumstances for a party to call a particular witness, or to take the stand as a witness in a civil case, or to produce documents or other objects in his or her possession as evidence[,] and the party fails to do so, tradition has allowed the adversary to use this failure as the basis for invoking an adverse inference.”) (footnotes omitted). 73 Case: 11-11535 Date Filed: 07/15/2014 Page: 74 of 117

Because DeBruce did not produce the available witnesses—himself, his

mother, or DelGrosso—or ask Mathis about his mitigation strategy, DeBruce is

unable to rebut the possibility that “[t]rial counsel could reasonably surmise from

his conversations with [the defendant] that character and psychological evidence

would be of little help.” See Strickland, 466 U.S. at 699, 104 S. Ct. at 2071.

Likewise, he is unable to substantiate the claim that his attorneys were “unaware of

[his] upbringing,” Maj. Op. at 26, because he presents no evidence about what his

attorneys knew before trial. DeBruce’s pre-trial interactions with his attorneys are

a black box, and his inability—or unwillingness—to document those interactions

makes it impossible to rebut the “strong presumption that [the attorneys acted] for

tactical reasons rather than through sheer neglect.” See Yarborough, 540 U.S. at 8,

124 S. Ct. at 5 (citing Strickland, 466 U.S. at 690, 104 S. Ct. at 2066).

DeBruce’s questioning of Mathis at the Rule 32 hearing is deficient in

another respect: it sheds no light on the attorneys’ strategy for the penalty phase.

An omission, standing alone, is meaningless under Strickland; what matters is the

reasonableness of the omission, which turns “on the facts of the particular case,

viewed as of the time of counsel’s conduct.” 466 U.S. at 690, 104 S. Ct. at 2066

DeBruce never asked Mathis about strategy, and is thus unable to disprove the

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presumption that the lawyers had good reasons for acting as they did. Cf. Massaro

v. United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714

(2003) (“The appellate court may have no way of knowing whether a seemingly

unusual or misguided action by counsel had a sound strategic motive or was taken

because the counsel’s alternatives were even worse.”). Without a sufficiently

developed factual record, a petitioner is merely asking the court to speculate about

an attorney’s activities or motives, an exercise forbidden to us by Strickland and

AEDPA. Cf. Guinan v. United States, 6 F.3d 468, 473 (7th Cir. 1993)

(Easterbrook, J., concurring) (“[T]he absence of a complete record prevents

definitive action. No matter how odd or deficient trial counsel’s performance may

seem, that lawyer may have had a reason for acting as he did.”) (quoted with

approval in Massaro, 538 U.S. at 505, 123 S. Ct. at 1694). Here, we cannot say the

attorneys acted unreasonably because we do not know anything, one way or the

other, about their reasoning.

Instead of holding DeBruce to his burden of proof and critically examining

whether what DeBruce says the evidence shows is congruent with what the

evidence actually is, the majority accepts the claims in DeBruce’s brief in their

entirety. Actually, the majority goes further, inventing “facts” that even DeBruce

did not assert. According to the majority, the defense attorneys “fail[ed] to take

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even the first step of asking DeBruce and his mother about the information in the

[Garner] report.” Maj. Op. at 23. This is total speculation: there is exactly zero

testimony to that effect, and DeBruce did not make the claim in his brief. The

exasperating thing is that the majority could be right—but if they are, it is because

they guessed, not because DeBruce presented any evidence establishing the point.

Alternatively, the majority could be dead wrong: maybe Mathis and

DelGrosso did ask DeBruce and his mother about information in the report.

Maybe, as the State suggests, DeBruce and his mother actively misled the

attorneys about their client’s background and told Mathis that the report was

nonsense, leading Mathis to “tailor[] his investigation decisions to the information

he received from his client and his client’s mother,” see Gov’t. Br. at 45–46,

something the Supreme Court in Strickland explicitly said attorneys should do, 466

U.S. at 691, 104 S. Ct. at 2066 (“Counsel’s actions are usually based, quite

properly, on informed strategic choices made by the defendant and on information

supplied by the defendant.”), and something our circuit has found dispositive in

dismissing ineffective-assistance claims, see, e.g., Williams v. Head, 185 F.3d

1223, 1237 (11th Cir. 1999) (“An attorney does not render ineffective assistance

by failing to discover and develop evidence of childhood abuse that his client does

not mention to him.”).

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Or, as long as we’re indulging baseless speculation, maybe Mathis and

DelGrosso asked DeBruce and his mother about the report and learned information

that led them to believe a mental health mitigation strategy would be

counterproductive. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“[W]hen a

defendant has given counsel reason to believe that pursuing certain investigations

would be fruitless or even harmful, counsel’s failure to pursue those investigations

may not later be challenged as unreasonable.”). Or maybe the attorneys followed

up on the report only to conclude—given what they knew of the jury, or of their

client, or of the evidence they expected to uncover—that it would make for a weak

argument and that they would be better off trying something else. See id.

(“[W]hen the facts that support a certain potential line of defense are generally

known to counsel because of what the defendant has said, the need for further

investigation may be considerably diminished or eliminated altogether.”); see also

Harrington, __ U.S. at __, 131 S. Ct. at 788 (“Unlike a later reviewing court, the

attorney observed the relevant proceedings, knew of materials outside the record,

and interacted with the client, with opposing counsel, and with the judge.”).

We just don’t know: Mathis was not asked about the Garner Report,

DelGrosso did not testify, and DeBruce does not offer any other information. That

should be the end of it. Instead, the majority rewards DeBruce for his incomplete

presentation and overturns a reasoned State court decision on nothing more than

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the majority’s self-proclaimed powers of divination. We should be more than a

claim-laundering service for underdeveloped habeas petitions; if we were going to

let DeBruce write his own habeas writ, we could have done that without two

decades of inconclusive litigation.

III.

The majority today has misapplied AEDPA in a general sense by failing to

hold DeBruce to his burden of proof under § 2254(d), but the majority also

misapplies AEDPA in the specific context of Strickland. The Court of Criminal

Appeals concluded that DeBruce’s attorneys pursued a “beg for mercy” strategy at

the sentencing phase of trial. See DeBruce, 890 So. 2d at 1093–94. Because the

majority believes, in its independent judgment, that a competent lawyer would

have gone all-out in an effort to humanize DeBruce and generate sympathy for him

in the eyes of the jury, the majority reverses a State court decision as

“unreasonable” only in the sense that the majority would have decided DeBruce’s

case differently had they been sitting on the State bench.

The majority’s casual second-guessing of the Court of Criminal Appeals

ignores clear Supreme Court guidance on the application of AEDPA to Strickland

claims. Our task is first to make a sincere effort “to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time,” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, followed

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by an equally sincere effort to “determine what arguments or theories supported”

or “could have supported[] the state court’s decision,” Harrington, __ U.S. at __,

131 S. Ct. at 786 (emphasis added). We are “required not simply to give [the]

attorneys the benefit of the doubt, but to affirmatively entertain the range of

possible reasons [the petitioner’s] counsel may have had for proceeding as they

did.” Pinholster, __ U.S. at __, 131 S. Ct. at 1407 (first alteration in original,

quotation marks and citations omitted). I will first evaluate DeBruce’s petition

according to this guidance from the Supreme Court, and then show how the

majority bypasses these steps by substituting its own Strickland analysis for that of

the State court.

Reconstructing events from the attorneys’ perspective at the time, we start

with Mathis’s testimony that—based on his interactions with his client—he did not

believe anything was mentally or physically wrong with DeBruce. “[H]e seemed

about as attentive as people would [be] under the circumstances,” Mathis said.

State Court—Collateral Transcript, Vol. 15, at 173. “We would all of us criminal

defense lawyers on a capital murder case like to have a client with 120 IQ who

could talk to us like we could talk to them, but unfortunately that never happens.

So you get used to it in this business. And I assumed that Derrick was not real

bright, that he could get by, but that he was not real bright, that I was going to have

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to do most of this myself, and reacted accordingly so.” Id. at 174. The trial judge

corroborated this observation at the Rule 32 hearing: “I sat here and watched

[DeBruce], and he wasn’t in pain when I was trying him that week. He would

rather have been somewhere else I’m sure, but there wasn’t physically anything

wrong with him. I observed him throughout the trial. He even got up and made

part of the closing argument in the sentencing phase. Didn’t appear to have any

difficulty.” Id. at 276.

But rather than relying on his observation of DeBruce or his conversations

with his client (Mathis said that he “spoke with [DeBruce] many times,” State

Court—Trial Transcript, Vol. 1, at 12), Mathis asked the court to have DeBruce

evaluated. The record shows that Mathis was motivated to ask for the evaluation

because of “some information I was given by this defendant’s mother prior to

having the opportunity to speak at length with him.” Id. Mathis was plainly

attentive to the possibility that whatever “some information” was would be

relevant to the penalty phase, because he made clear that the evaluation—what

would become the Garner Report—“would be for the purposes of the punishment

phase of the trial . . . if it comes down to it.” Id. at 12–13. Because there is no

evidence to the contrary, Strickland requires us to assume that Mathis and

DelGrosso reviewed the Garner Report and considered its usefulness as they

planned for trial. See 466 U.S. at 690, 104 S. Ct. at 2066.

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Here the attorneys would come to a fork in the road, and we have to ask:

having reviewed the report, could reasonable attorneys make the decision to pursue

a beg-for-mercy strategy in the penalty phase, as opposed to a humanization

defense or a defense based on mental health? The Supreme Court, our court, and

the Alabama Supreme Court have all held that they could. Attorneys are not

required to exhaust every line of investigation before making tactical decisions.

“There comes a point where a defense attorney will reasonably decide that another

strategy is in order, thus ‘mak[ing] particular investigations unnecessary.’”

Pinholster, __ U.S. at __, 131 S. Ct at 1407 (alteration in original, quoting

Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). The Supreme Court in Burger

noted that “[t]he record at the habeas corpus hearing does suggest that [the defense

attorney] could well have made a more thorough investigation than he did,” but the

Court held he was not required to. 483 U.S. at 794–95, 107 S. Ct. at 3126.

“[T]here comes a point at which evidence . . . can reasonably be expected to be

only cumulative, and the search for it distractive from more important duties.”

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

Our court has said that “[b]y its nature, ‘strategy’ can include a decision not

to investigate . . . [and] a lawyer can make a reasonable decision that no matter

what an investigation might produce, he wants to steer clear of a certain course.”

Rodgers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994). We do not require attorneys to

81 Case: 11-11535 Date Filed: 07/15/2014 Page: 82 of 117

“pursue every path until it bears fruit or until all hope withers.” Williams, 185

F.3d at 1237 (quoting Foster v. Dugger, 823 F.2d 402, 405 (11th Cir. 1987)).

“Counsel is not required to present every nonfrivilous defense; nor is counsel

required to present all mitigation evidence, even if the additional mitigation

evidence would not have been incompatible with counsel’s strategy.” Chandler,

218 F.3d at 1319; see also Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999)

(noting that lawyers are “not required to investigate and present all available

mitigating evidence to be reasonable”); Waters v. Thomas, 46 F.3d 1506, 1511

(11th Cir. 1995) (en banc) (“Our decisions are inconsistent with any notion that

counsel must present all available mitigating circumstance evidence, or all

available mental illness or impairment evidence, in order to render effective

assistance of counsel at the sentencing stage.”). If we ourselves have given such

wide latitude to defense counsel, and if the Supreme Court has repeatedly rejected

“the notion that the same investigation will be required in every case,” Pinholster,

__ U.S. at __, 131 S. Ct. at 1406–07, then it cannot have been unreasonable for the

Court of Criminal Appeals to say here that DeBruce failed to show that his

attorneys were incompetent.

Things might be different if a client is “fatalistic and uncooperative.” Porter

v. McCollum, 558 U.S. 30, 40, 130 S. Ct. 447, 453, 175 L. Ed. 2d 398 (2009) (per

curiam). If an attorney has reason to think his client is not forthcoming, he might

82 Case: 11-11535 Date Filed: 07/15/2014 Page: 83 of 117

need to take further steps to uncover things his client is trying to conceal.

Certainly, he will need to have more than “one short meeting” with his client

before sentencing, as the inexperienced defense lawyer in Porter did. Id. at 39, 130

S. Ct. at 453. But DeBruce was not fatalistic or uncooperative; the evidence we

have shows him participating extensively in his own defense. He met many times

with Mathis before trial. He addressed the court directly on a mid-trial suppression

motion. And he addressed the jury on his own behalf in the penalty phase of the

trial. The Court of Criminal Appeals could have reasonably believed that

DeBruce’s lawyers, in consultation with their client, considered and rejected the

mitigation strategy that DeBruce now, in retrospect, urges as the only viable path

forward. Debruce presents no evidence to prove otherwise.

Bearing in mind that “[t]here are countless ways to provide effective

assistance in any given case,” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, we

also must ask whether Mathis and DelGrosso might have had reason to be wary of

focusing on DeBruce’s background at sentencing. Competent lawyers could have

many reasons for not taking the humanization route. Mathis and DelGrosso—both

experienced attorneys familiar with local conditions and juries—might have

concluded that the jury would not find a defense based on DeBruce’s background

persuasive. Take, for instance, DeBruce’s new mental health mitigation evidence.

At the Rule 32 hearing, DeBruce contended that he suffers from brain damage and

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offered an expert, Dr. David Williamson, to testify that he found “clear evidence

for brain dysfunction from Mr. DeBruce.” State Court—Collateral Transcript,

Vol. 17, at 32. The State responded with its own expert, Dr. Glen King, who

testified that DeBruce “suffers from no serious mental illness or mental defect,” id.

at 232, and that, in Dr. King’s opinion, DeBruce “was malingering psychological

and psychiatric symptoms,” id. at 237—that is, that DeBruce was faking it to evade

punishment.

“Evaluat[ing] the conduct from counsel’s perspective at the time,”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, the lawyers would have been aware

of the risks of a mental health mitigation defense. Maybe the attorneys would get

lucky, and the jury would patiently endure long stretches of tedious cross-

examination as the parties labored to discredit the other side’s expert. See, e.g.,

State Court—Collateral Transcript, Vol. 17, at 259–86. Maybe the jury would

gladly dive into the details of the Minnesota Multiphasic Personality test, id. at

233, the Instructed Interview Reported Systems test, id. at 237–38, and the

Wechsler Adult Intelligence Scale, id. at 236. And maybe, after extended

squabbling about standardization procedures and norming and clinical validity, the

jury would credit the defense expert over the State expert and conclude that

DeBruce is mentally impaired.

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But maybe they wouldn’t. Maybe the jury would find the State expert more

credible, or maybe the jury would simply find the battle of the experts exhausting

and default to their own observations of DeBruce in the course of trial. Now the

defense could be in real trouble: they have exposed their client, whom the jury just

convicted of a cold-blooded murder, to accusations of faking brain dysfunction to

avoid responsibility for his crime. In doing so, the attorneys might undermine their

own credibility in front of the jury and undercut whatever sympathy jurors might

feel for their client. The mental health mitigation strategy that DeBruce advocates

in hindsight would not have been risk-free from the perspective of his attorneys at

the time. See Harrington, __ U.S. at __, 131 S. Ct. at 790 (finding that counsel was

not ineffective for foregoing expert testimony where “there was the possibility that

expert testimony could shift attention to esoteric matters of forensic science,

distract the jury . . . or transform the case into a battle of the experts.”).

Obviously, different lawyers will evaluate these risks differently; “[e]ven the

best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. That is why Strickland does

not allow us to assume that certain kinds of mitigation strategies are obviously

superior to others. “The current infatuation with ‘humanizing’ the defendant as the

be-all and end-all of mitigation disregards the possibility that this may be the

wrong tactic in some cases because experienced lawyers conclude that the jury

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simply won’t buy it.” Pinholster, __ U.S. at __, 131 S. Ct. at 1408 (quoting

Pinholster v. Ayers, 590 F.3d 651, 692 (9th Cir. 2009) (en banc) (Kozinski, C.J.,

dissenting) rev’d __ U.S. at __, 131 S. Ct. at 1388). “[A]pplying a heavy measure

of deference to counsel’s judgments,” Strickland, 466 U.S. at 691, 104 S. Ct. at

2066, we cannot discount the possibility that DeBruce’s attorneys considered these

risks and decided against the approach DeBruce and the majority now endorse.

And because DeBruce offers no evidence to rebut that possibility, we certainly

cannot say the Court of Criminal Appeals was unreasonable for thinking that

“counsel made such a reasoned decision in this case.” Pinholster, __ U.S. at __,

131 S. Ct. at 1408.

DeBruce’s lawyers appear to have decided that the best course was to try

and elicit sympathy not for their client but for his family. See id. at __, 131 S. Ct.

at 1407 (“[I]t certainly can be reasonable for attorneys to conclude that creating

sympathy for the defendant’s family is a better idea because the defendant himself

is simply unsympathetic.”). Thus, DeBruce’s lawyers offered testimony from the

defendant’s mother: “I’m asking y’all to please to think about me and my child. I

love him and you love yours and I’m begging y’all try not to give him the death

penalty. Let him live.” State Court—Trial Transcript, Vol. 7, at 1136–37.5

5 The majority thus misses the point when it describes Jessie DeBruce’s testimony as “grossly inaccurate.” Maj. Op. at 16. That criticism only makes sense if you believe that humanization is the only appropriate defense strategy; it ignores the possibility that the lawyers 86 Case: 11-11535 Date Filed: 07/15/2014 Page: 87 of 117

DeBruce’s own statement to the jury centered on his affection for his mother and

his own child: “I have a son who is one year old and my mother. I love my

mother. I love my son.” Id. at 1169. In his closing, DelGrosso appealed to the

jurors as parents: “How many of you have kids that have done the most absolute

stupid things? They go out and do it and it is stupid. It’s just stupid, but do we kill

that kid? No, we don’t kill him.” Id. at 1172. The prosecutor certainly understood

this as a family sympathy defense. He began his closing statement by

acknowledging that the jury had “just witnessed as good a guilt trip, as heavy a

burden that anybody can place upon your shoulders.” Id. at 1174. He responded

directly to DeBruce’s appeal to family: “I love my mother; I love my son. . . . All

of those things apply to Doug Battles [sic]. All of those things apply to the Battles

[sic] family.” Id. at 1176.

Focusing on DeBruce’s family also deprived the State of the opportunity to

respond with additional evidence in rebuttal. See Wong v. Belmontes, 558 U.S.

15, 25, 130 S. Ct. 383, 389, 175 L. Ed. 2d 328 (2009) (“The type of ‘more-

evidence-is-better’ approach advocated by [defendant] . . . might seem appealing—

after all, what is there to lose? But here there was a lot to lose. A heavyhanded

intended to arouse sympathy not for DeBruce but for DeBruce’s family. If the lawyers could present DeBruce as the wayward son of a hardworking, close-knit, blue collar family, the jurors might take mercy on the family and spare them the pain of their son’s execution. This is “the sort of calculated risk that lies at the heart of an advocate’s discretion.” Yarborough, 540 U.S. at 10, 124 S. Ct. at 6. 87 Case: 11-11535 Date Filed: 07/15/2014 Page: 88 of 117

case to portray [defendant] in a positive light . . . would have invited the strongest

possible evidence in rebuttal.”). Expert testimony about DeBruce’s mental

condition would invite rebuttal evidence from the State’s expert that DeBruce was

faking his condition to evade punishment. Testimony about DeBruce’s

background and upbringing would open the door to testimony about DeBruce’s

earlier criminal activities, including the spree of robberies or attempted robberies

leading up to Douglas Battle’s murder. Testimony about DeBruce’s family might

focus attention on DeBruce’s siblings, many of whom were also incarcerated and

who might not make ideal character witnesses, or who might undercut sympathy

for DeBruce’s mother by describing their childhoods as hellish. DeBruce’s sister

Jaquelline, for example, testified at the Rule 32 hearing that their mother approved

of the eldest sister Juanita’s heavy-handed disciplining of the other children: “My

mother said she left [Juanita] in control over us and she can chastise us as she

choose.” State Court—Collateral Transcript, Vol. 15, at 355.

The defense team had to pick: they could appeal to the jury’s sympathy for

DeBruce’s family, suggesting that as parents they should spare this “kid” who had

done something “stupid,” State Court—Trial Transcript, Vol. 7, at 1172, or they

could try to manufacture sympathy for DeBruce himself, thereby inviting the State

to introduce evidence that this “kid” was in fact a committed criminal. But the

defense team could not do both. They made a tactical decision to take one road

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instead of the other, and the fact that DeBruce now, in hindsight, wishes they made

a different call does not mean that the attorneys were constitutionally ineffective.

See Chandler, 218 F.3d at 1319 (“Considering the realities of the courtroom, more

is not always better. Stacking defenses can hurt a case. Good advocacy requires

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

others.”). It was not unreasonable for the Court of Criminal Appeals to find that

the attorneys’ “strategy in the penalty phase was to beg for mercy,” DeBruce, 890

So. 2d at 1093, and Strickland and AEDPA insulate that strategic decision from

second-guessing.

Rather than “affirmatively entertain[ing] the range of possible reasons

[petitioner’s] counsel may have had for proceeding as they did,” Pinholster, __

U.S. at __, 131 S. Ct. at 1407, the majority “treat[s] the unreasonableness question

as a test of [their] confidence in the result [they] would reach under de novo

review.” Contra Harrington, __ U.S. at __, 131 S. Ct. at 786. The majority

opinion advances two theories of ineffectiveness: first, that the attorneys must have

failed to conduct an adequate investigation because they began their representation

shortly before trial, and second, that the attorneys must have failed to pursue the

investigative leads in the Garner Report relating to DeBruce’s background and

mental health.

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Neither theory has definitive support in the record. The majority

nonetheless presents its speculation as certainty, and then goes further and says that

it would be objectively unreasonable to disagree. “Because the Court of Appeals

had little doubt that [the petitioner’s] Strickland claim had merit, the Court of

Appeals concluded the state court must have been unreasonable in rejecting it.” Id.

This approach reflects unbounded review, heedless of the limitations of Strickland

and § 2254(d). “It bears repeating that even a strong case for relief does not mean

the state court’s contrary conclusion was unreasonable.” Harrington, __ U.S. at __,

131 S. Ct. at 786.

The majority is forced to proceed by supposition because the facts in

evidence do not get DeBruce very far. After the Rule 32 hearing, the only specific

claims are that the attorneys did not hire an investigator and did not retrieve

DeBruce’s school or medical records. The majority does not say—and indeed

cannot say—that this is prima facie evidence of ineffectiveness, because doing so

would treat those omissions as mechanical, per se requirements for attorneys.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also Chandler, 218 F.3d at

1313 (“To state the obvious: the trial lawyers, in every case, could have done

something more or something different. So, omissions are inevitable. But, the

issue is not what is possible or ‘what is prudent or appropriate, but only what is

constitutionally compelled.’” (quoting Burger, 483 U.S. at 794, 107 S. Ct. at

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3126)). And DeBruce has no evidence to rebut the possibility that the attorneys

engaged in other, undocumented investigation activities, see Titlow, __ U.S. at __,

134 S. Ct. at 17, because he failed to question Mathis “about what investigations

that he and DelGrosso conducted.” DeBruce, 890 So. 2d at 1085. That is why the

majority has to argue ineffectiveness by supposition.

The majority’s first theory of ineffectiveness makes an inference about time.

Advancing a sort of res ipsa loquitur approach to Strickland, the majority claims

that “counsel’s testimony during the state collateral proceedings made clear that his

failure to conduct adequate investigation was not the result of a strategic decision,

but rather a result of lack of time as he scrambled to prepare for DeBruce’s capital

trial with less than four weeks’ time while also preparing for and conducting other

trials.” Maj. Op. at 24.

By now, we know that Mathis did not actually say that. Mathis said only

that he did not hire an outside investigator or gather academic or medical records.

State Court—Collateral Transcript, Vol. 15, 136–37. Mathis did not say—because

he was not asked—whether he (or DelGrosso) took other steps “to investigate

DeBruce’s mental health,” nor was he asked about his overall strategy with respect

to the penalty phase of his client’s trial. What the majority presents as fact here is

just conjecture: because the attorneys were retained so close to trial, the majority

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infers that they could not possibly have had time to conduct an adequate

investigation or make an informed decision.

Of course the majority cites no Supreme Court case to support this temporal

rule of attorney performance, because there is none. Under Strickland, our analysis

would be the same whether the attorneys were retained one month before trial or

one hour before trial. We would still need to make a reasonableness determination,

which would still require us to know more about what the attorneys did before we

could call them ineffective. The majority cannot hurdle the gaps in the evidence

by drawing an inference from the amount of time the lawyers spent preparing for

the case; the Strickland presumption points in the other direction, and to rebut it the

majority needs more than guesswork and innuendo.

The majority’s second theory of ineffectiveness—that the attorneys ignored

the Garner Report—requires more attention. The majority believes that the Garner

Report is their smoking gun, the red flag that would induce even a minimally

competent attorney to probe for more information. We are told that the attorneys

ignored the Garner Report by “failing to take even the first step of asking DeBruce

and his mother about the information in the report,” Maj. Op. at 23, and that even

if the attorneys had not ignored it, their investigation would still have been

inadequate because “no lawyer could reasonably have made a strategic decision to

forego the pursuit of mitigation evidence based on” the Garner Report. Id. at 21.

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Either way, the majority reasons, the lawyers must have performed ineffectively,

and so surely the Court of Criminal Appeals was unreasonable to find otherwise.

For simplicity, I will divide the majority’s theory into its factual and legal

components. The factual claim—that the lawyers outright ignored the Garner

Report—suffers from the now-familiar burden of proof problem: DeBruce presents

no evidence one way or the other about how the attorneys used (or did not use) the

Garner Report, and without that evidence, Strickland requires us to assume—as the

State court did—that the attorneys used the report properly. The legal claim—that

a pre-trial competency evaluation could never be an adequate basis on which to

make mitigation decisions—is not supported by any particular Supreme Court

holding but merely by the majority’s “own sense of ‘prudence.’” Pinholster, __

U.S. at __, 131 S. Ct. at 1407 (citation omitted). That approach ignores that “it is

not ‘an unreasonable application of clearly established Federal law’ for a state

court to decline to apply a specific legal rule that has not been squarely established

by [the Supreme] Court.” Knowles, 566 U.S. at 121, 129 S. Ct. at 1419 (quotation

marks omitted). That the majority would evaluate this case differently under

Strickland does not mean that the Court of Criminal Appeals applied Strickland

unreasonably.

Turning first to the suggestion that the attorneys ignored the Garner Report,

the only testimony remotely on point was elicited by the attorney for the State, who

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asked Mathis “whether [he] saw any reason to pursue a psychological defense in

this case.” Mathis replied that he had not, because “the [Garner Report] indicated

that [DeBruce] was all right and we should go forward, and so we went forward

from that point.” State Court—Collateral Transcript, Vol. 15, at 174. No one

stopped to clarify whether “psychological defense” referred to the guilt phase, the

penalty phase, or both, or whether by “indicated” Mathis meant he had personally

read the report or learned of its contents some other way.

This is the only testimony available to us, and the best we can say is that it is

ambiguous. The majority reads Mathis to be saying that when DeBruce was found

competent to stand trial, his lawyers simultaneously abandoned any hope of a

mental health mitigation defense. See Maj. Op. at 21. If you assume, as the

majority does, that Mathis and DelGrosso were buffoons, then you might agree

here that Mathis betrayed a “failure to understand the law” of mitigation. Id.

But if instead you start with the “strong presumption that [the attorneys

acted] for tactical reasons rather than through sheer neglect,” Yarborough, 540

U.S. at 8, 124 S. Ct. at 5 (citing Strickland, 466 U.S. at 690, 104 S. Ct. at 2052),

you would not assume that Mathis—an experienced and successful capital-defense

attorney—was somehow unaware of the elementary legal distinction between

guilt-phase competence and penalty-phase mitigation. That assumption is

obviously false: this is one of the few things on which we actually have

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contemporaneous record evidence, in the form of Mathis telling the trial judge that

the Garner Report “would be for the purposes of the punishment phase of the

trial . . . if it comes down to it.” State Court—Trial Transcript, Vol. 1, at 12–13.

Mathis plainly understood what the penalty phase of a trial looks like, and he was

thinking early on about how to prepare. He said outright he was requesting the

Garner Report as part of his penalty-phase investigation, “as opposed to me

thinking that there is any way on God’s earth that [DeBruce] is going to be

determined by some expert to be insane.” Id.

The majority’s interpretation of Mathis’s ambiguous testimony at the

collateral hearing is thus both inconsistent with Strickland’s presumption of

competence and contradicted by the trial record. It is just as plausible, if not more

so, to interpret Mathis as saying that he saw no reason to pursue a “psychological

defense” at the guilt phase, as the Garner Report “indicated that [DeBruce] was all

right and we should go forward” to trial. See State Court—Collateral Transcript,

Vol. 15, at 174. DeBruce had the chance to clear this up at the Rule 32 hearing—

Mathis was, after all, his witness—and he did not.

But, true to form, the majority is ready with the inverted burden of proof:

“[T]here is no indication that Mathis’s failure to develop the troubling leads in

DeBruce’s competency report was supported by a professional judgment not to

pursue a mitigation investigation.” Maj. Op. at 25. We need to take a step back

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here, because that is not how Strickland works: the burden is on DeBruce to

demonstrate what his attorneys did, or did not do, with the Garner Report. The

majority instead takes absence of evidence as evidence of absence, and assumes

that the lack of testimony ought to count in DeBruce’s favor. This ambiguity is

then breezily converted into a conviction that Mathis was “unaware of DeBruce’s

upbringing.” Id. at 20; contra Titlow, __ U.S. at __, 134 S. Ct. at 17–18. Never

mind that the Court of Criminal Appeals found as a factual matter that Mathis had

reviewed the Garner Report, DeBruce, 890 So. 2d at 1092, meaning the burden is

on DeBruce under § 2254(d)(2). DeBruce had no evidence to challenge the court’s

finding because he never asked Mathis about the Garner Report at the Rule 32

hearing, despite every opportunity to do so. We are required to assume, both by

§ 2254 and by Strickland, that the attorneys reviewed and thought about the report.

Without unambiguous evidence to the contrary, we have no basis for calling the

Court of Criminal Appeal’s finding unreasonable.

Undaunted by the lack of evidence and indifferent to our posture of “doubly

deferential” review, Yarborough, 540 U.S. at 6, 124 S. Ct. at 4, the majority goes

on to lecture the Court of Criminal Appeals about its alleged misapplication of

Strickland: “Because no lawyer could reasonably have made a strategic decision to

forego the pursuit of mitigation evidence based on the [Garner] report governing

competency to stand trial, the Alabama Court of Criminal Appeals’ conclusion to

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the contrary constitutes an unreasonable application of Strickland’s performance

prong.” Maj. Op. at 21. The claim here seems to be that because the Garner

Report was nominally a competency evaluation rather than a full-bore social

history, it was by definition an inadequate basis on which to make strategic

decisions regarding mitigation.

Even assuming the majority is right about this as a factual proposition—that

is, even if we assume, contra Strickland, that the Garner Report was the only

source of information relied on by the attorneys in planning for the penalty phase,

see Titlow, __ U.S. at __, 134 S. Ct. at 18—the Supreme Court has never endorsed

a per se rule that attorneys are unreasonable for curtailing an investigation after

reviewing something like the Garner Report, simply because that report is called a

competency evaluation. Indeed, if anything, the Court has said the opposite. In

Pinholster, the Ninth Circuit relied on Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 146 L. Ed. 2d 389, Wiggins v. Smith, 539 U.S. 510, 125 S. Ct. 2456, 162 L.

Ed. 2d 360 (2003), and Rompilla, and

drew from those cases a “constitutional duty to investigate,” and the principle that “[i]t is prima facie ineffective assistance for counsel to ‘abandon[] their investigation of [the] petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources.’” The [Ninth Circuit] explained that it could not “lightly disregard” a failure to introduce evidence of “excruciating life history” or “nightmarish childhood.”

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Pinholster, __ U.S. at __, 131 S. Ct. at 1406 (alterations in original, citations

omitted).

The Ninth Circuit was reversed. Their reasoning “misapplied Strickland and

overlooked ‘the constitutionally protected independence of counsel and . . . the

wide latitude counsel must have in making tactical decisions.’” Id. (quoting

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). “The Court of Appeals erred in

attributing strict rules to [the Supreme] Court’s recent case law,” id. at __, 131 S.

Ct. at 1407, and failed “to affirmatively entertain the range of possible ‘reasons

[petitioner’s] counsel may have had for proceeding as they did,’” id. (citations

omitted). “There comes a point where a defense attorney will reasonably decide

that another strategy is in order, thus ‘mak[ing] particular investigations

unnecessary.’” Id. (alteration in original, quoting Strickland, 466 U.S. at 691, 104

S. Ct. at 2066)).

The majority opinion does not engage with the Supreme Court’s most recent

decisions applying AEDPA to Strickland claims, like Pinholster and Harrington.

Instead, the majority relies principally on Williams, from which they draw the

principle that “decisions about whether to present a mental-health defense during

the guilt phase are separate issues from the decision whether to investigate

mitigation evidence during sentencing.” Maj. Op. at 21 (emphasis in original).

This platitude is both obvious and totally unhelpful; of course there’s an analytical

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distinction between preparing for the guilt phase and preparing for the penalty

phase, but that tells us nothing about what these attorneys did in this case, or

whether those actions were reasonable. That the distinction exists, in the abstract,

does not also establish that Mathis and DelGrosso failed to appreciate it or act on

it. See Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S. Ct. 1029, 1035, 145 L. Ed.

2d 985 (2000) (“The Court of Appeals failed to engage in the circumstance-

specific reasonableness inquiry required by Strickland, and that alone mandates

vacatur and remand.”). Williams certainly does not contain the categorical

language the majority tries to squeeze from it; even the majority’s preferred

language from Williams—that mitigating evidence “may alter the jury’s selection

of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility

case,” 529 U.S. at 398, 120 S. Ct. at 1516 (emphasis added) (quoted at Maj. Op. at

20)—is phrased conditionally, and does not resemble a mechanical rule that

attorneys must conduct a particular kind of investigation before they make tactical

decisions about mitigation. 6

6 I also wonder why the majority is talking about Williams at all in the part of their opinion about attorney performance. Williams was decided on the prejudice prong of Strickland: the Virginia Supreme Court was held to have misinterpreted the application of Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), to Strickland’s prejudice standard. See Williams, 529 U.S. at 391, 120 S. Ct. at 1512. There was no actual dispute in Williams about performance—the state judge who sentenced Williams had found counsel’s performance deficient, id. at 370, 120 S. Ct. at 1501, the Virginia Supreme Court “assumed, without deciding, that trial counsel had been ineffective,” id. at 371, 120 S. Ct. at 1501, and the State “barely disputed” that point in its brief, id. at 395, 120 S. Ct. at 1514—and so the Court’s disquisition about performance was dicta: it says nothing about a case like DeBruce’s, where we 99 Case: 11-11535 Date Filed: 07/15/2014 Page: 100 of 117

The majority bandies the distinction between guilt-phase competence and

penalty-phase mitigation around like it is some kind of profound insight lost on the

Court of Criminal Appeals. The majority opinion asserts that the State court

“erroneous[ly] conflate[ed] . . . the issues of guilt-phase mental health defenses and

competence to stand trial with the separate issue of whether to conduct a mitigation

investigation.” Maj. Op. at 21. As a preliminary matter, that statement would

probably come as a surprise to the author of the Court of Criminal Appeals

opinion, Judge Wise. She wrote, “we hold that Mathis was not ineffective for

failing to investigate further into DeBruce’s mental health,” DeBruce, 890 So. 2d

at 1093, in a section of the opinion that begins “DeBruce also argues that his

counsel was ineffective in the penalty phase for failing to investigate.” Id. at 1088

(emphasis added). Judge Wise went on to discuss other cases involving “a claim

that counsel’s performance was deficient for failing to present mitigation evidence

of the defendant’s abusive childhood,” id. at 1092, and ended by considering the

application of Wiggins “when reviewing a claim of ineffective assistance of

counsel at the penalty phase of a capital trial,” id. at 1093 (emphasis added). To

must apply AEDPA when a state court finds an attorney competent and the petitioner disagrees. Coincidentally, Williams was also the case establishing that AEDPA is concerned with “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412, 120 S. Ct. at 1523 (emphasis added). And so, by relying on dicta from a case, decided on a different posture of review, that also post-dates DeBruce’s trial by about a decade, the majority pulls off a kind of dubious hat trick, getting Williams wrong in just about every relevant way. 100 Case: 11-11535 Date Filed: 07/15/2014 Page: 101 of 117

put it simply, Judge Wise understands what the penalty phase of a trial looks like,

and understands the distinction between competence and mitigation. To put it even

more simply: Judge Wise is not a dolt, and the majority’s eagerness to assume

otherwise is not consistent with AEDPA. See Titlow, __ U.S. at __, 134 S. Ct. at

13 (“[AEDPA] and Strickland . . . do not permit federal judges to so casually

second-guess the decisions of their state-court colleagues or defense attorneys.”)

(citations omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357,

360, 154 L. Ed. 2d 279 (2002) (“This readiness to attribute error is inconsistent

with the presumption that state courts know and follow the law.”).

The majority’s real disagreement with Judge Wise is not about her

“conflating” elementary legal concepts, but over the content of her court’s

judgment. The Court of Criminal Appeals believed that DeBruce and his mother

actively misled the defense attorneys (and maybe everyone else) about DeBruce’s

background, and relied on the long line of cases—including Strickland—holding

that a defendant cannot dissuade his attorney from investigating a particular line of

defense and then later, in a collateral proceeding, turn around and challenge the

attorney’s conduct as unreasonable. See 466 U.S. at 691, 104 S. Ct. at 2066

(“Counsel’s actions are usually based, quite properly, on informed strategic

choices made by the defendant and on information supplied by the defendant. In

particular, what investigation decisions are reasonable depends critically on such

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information.”) (emphasis added). Judge Wise noted that DeBruce said one thing to

Gary Garner (resulting in the Garner Report, which the majority assumes contains

the truth), another thing to the probation officer who prepared the post-trial,

presentence report, see DeBruce, 890 So. 2d at 1092 (“[DeBruce] reported a good

relationship with both of his parents and his numerous siblings. There were no

significant problems noted during his formative years. . . . DeBruce claims to have

attended high school at Ramsey, in Birmingham, Alabama[,] and was in the

‘Gifted’ program. The Probation Office report from Birmingham indicated that

DeBruce finished high school at Hayes High School. DeBruce then attended the

University of Alabama in Birmingham for one semester.”) (quoting the Probation

Office’s post-trial presentence report), and said perhaps a third thing to his

attorneys. Of course, we can’t be sure about that last one because DeBruce offered

no evidence at the Rule 32 hearing about the substance of his conversations with

his lawyers. “Given DeBruce’s mother testimony [sic], DeBruce’s own comments,

and the conflicting expert testimony about DeBruce’s mental health, [the Court of

Criminal Appeals held] that Mathis was not ineffective for failing to investigate

further into DeBruce’s mental health.” Id. at 1093.

The majority does not even pretend to engage with that court’s reasoning.

Instead, mimicking the error for which the Sixth Circuit was reversed in

Harrington, the majority “treat[s] the unreasonableness question as a test of its

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confidence in the result it would reach under de novo review.” __ U.S. at __, 131

S. Ct. at 786. Hence the majority’s conviction that the attorneys “never confronted

DeBruce or his mother with these inconsistencies [in DeBruce’s account of his

background] in order to discover the truth, nor did [they] follow up on the [Garner

Report].” Maj. Op. at 22. At bottom, what the majority tries to portray as a legal

disagreement is really a factual one: the majority reads the record differently, and

then conflates this with the reasonability determination required by AEDPA. See

Knowles, 556 U.S. at 126, 129 S. Ct. at 1421 (“Here, the Court of Appeals failed

even to mention the clearly-erroneous standard, let alone apply it, before

effectively overturning the lower court’s factual findings related to counsel’s

behavior.”).

All this eventually returns us to the burden of proof, which rests on

DeBruce: if he wants to claim that his attorneys never discussed his background

with him, or never asked him about the contents of the Garner Report, he needs to

actually prove that those conversations never happened. Otherwise, Strickland’s

strong presumption of competence requires us to assume, as the Alabama court

did, that the defense lawyers reviewed the Garner Report, discussed it with their

client, and made a tactical decision to go in a different direction. DeBruce had

every opportunity to rebut that presumption during his direct examination of

Mathis at the Rule 32 hearing; it would have been simple to ask Mathis about the

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Garner Report, about DelGrosso’s involvement, about the attorneys’ interactions

with their client and his family, and so on. But those questions were not asked.

Where does that leave us? The answer should be easy: DeBruce’s petition

turns on the substance of conversations between DeBruce and his attorneys that we

know nothing about, and this “absence of evidence cannot overcome” Strickland’s

presumption of effectiveness, Titlow, __ U.S. at __, 134 S. Ct. at 17, let alone

overcome the deference we owe to the State court under AEDPA. But instead of

applying AEDPA, we rewrite the record to include “facts” to which nobody

testified, contra id.; we announce new rules of attorney performance, shakily

derived from the dicta of cases decided years after DeBruce’s trial, contra

Pinholster, __ U.S. at __, 131 S. Ct. at 1406–07; and we ignore the Court of

Criminal Appeals’ decision almost entirely, unless it is to insinuate that our State-

court colleagues do not know what the penalty phase of a trial looks like, contra

Harrington, __ U.S. at __, 131 S. Ct. at 786. I would have thought that seeing our

sister circuits get reversed for these errors would give us some pause before rolling

them all into one opinion.

IV.

It is hard to say what principle guides the majority’s prejudice analysis. As

far as I can tell, today’s opinion holds that if a petitioner can produce mitigating

evidence in a collateral proceeding that was not presented at trial, then federal

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judges should find prejudice if they are convinced—in their independent

judgment—that the new evidence is sufficiently “powerful” or “compelling.” Maj.

Op. at 18. Of course it is not so simple.

The Alabama court was reasonable in finding no prejudice. Though the

majority does its best to wring every last drop of pathos from the testimony, the

new mitigation case is merely (1) that DeBruce was diagnosed with a painful

intestinal disorder two years after his conviction, (2) that DeBruce is a person of

low-to-average intelligence, and (3) that he grew up poor in a bad neighborhood.

Those circumstances are, indeed, unfortunate. On the other hand, many

individuals in equally unfortunate circumstances do not go on to murder AutoZone

customers. The majority never spells out exactly how DeBruce’s “powerful” and

“compelling” mitigation evidence would have helped him at trial. Even DeBruce

does not argue that his intelligence or his childhood explain, or lessen his

culpability for, the murder of Douglas Battle. They are, I suppose, just reasons to

feel sorry for him. But that is not enough.

The Alabama court conducted the prejudice analysis required by Strickland,

“reweigh[ing] the evidence in aggravation against the totality of available

mitigating evidence,” Wiggins, 539 U.S. at 534, 123. S. Ct. at 2542, and concluded

that there was no reasonable probability of a different outcome. Repeating its

conclusion from the direct appeal of DeBruce’s conviction, the court wrote:

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Although we have reviewed ‘worse’ crimes of robbery-murder, the apparent cold-blooded, senseless, and unmerciful manner in which the defendant executed this crime impresses this Court as it did the trial judge. Other than the general arguments for not imposing a punishment of death in any case, we find no reason to spare the defendant’s life.

DeBruce, 890 So. 2d at 1091 (quoting DeBruce v. State, 651 So. 2d 599, 623 (Ala.

Crim. App. 1993)).

Just as the majority ignored AEDPA in evaluating Strickland’s performance

element, the majority proceeds to examine the prejudice element as though § 2254

does not exist. The majority sets out its own prejudice analysis—relying

principally on Eleventh Circuit cases instead of the Supreme Court cases relevant

to § 2254—and then concludes that the Court of Criminal Appeals was

“unreasonable” because they reached a conclusion different from the majority’s.

But the Supreme Court has “said time and again that ‘an unreasonable application

of federal law is different from an incorrect application of federal law.’ Even if the

Court of Appeals might have reached a different conclusion as an initial matter, it

was not an unreasonable application of our precedent for the [State court] to

conclude that [the petitioner] did not establish prejudice.” See Pinholster, __ U.S.

at __, 131 S. Ct. at 1411 (citations omitted, quoting Harrington, __ U.S. at __, 131

S. Ct. at 795). The majority “d[oes] not observe this distinction, but ultimately

substitute[s] their own judgment for that of the state court, in contravention of

§ 2254(d).” Woodford, 537 U.S. at 25, 123 S. Ct. at 360. 106 Case: 11-11535 Date Filed: 07/15/2014 Page: 107 of 117

In particular, the majority relies on various Eleventh Circuit cases for the

principle that “the primary purpose of the penalty phase is to ensure that the

sentence is individualized by focusing on the particularized characteristics of the

defendant,” Brownlee v. Haley, 306 F.3d 1043, 1074 (11th Cir. 2002), and says

that a petitioner is necessarily prejudiced when omitted mitigation evidence “paints

a vastly different picture of [the petitioner’s] background than that created by” the

evidence that was presented, Williams v. Allen, 542 F.3d 1326, 1342 (11th Cir.

2008). For what it is worth, I think these sweeping statements—which reflect the

humanization-above-all-else ethos rejected in Pinholster, see __ U.S. at __, 131 S.

Ct. at 140—are inconsistent with Strickland’s contextual, case-by-case standard;

surely these statements cannot be taken literally, because a clever lawyer could

“paint a vastly different picture” in a way that benefits his client by excluding even

worse background information from the jury’s consideration. See Wong, 558 U.S.

at 25, 130 S. Ct. at 389. But that is not worth much, because Brownlee and

Williams are not worth anything for AEDPA purposes: § 2254(d)(1) is concerned

with “clearly established Federal law, as determined by the Supreme Court,” not

by panel decisions of the Eleventh Circuit. See Parker v. Matthews, __ U.S. __,

132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012) (“The Sixth Circuit also erred by

consulting its own precedents, rather than those of the [Supreme] Court, in

assessing the reasonableness of the [State court]’s decision.”) (emphasis added).

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That the majority relies principally on our cases, rather than those of the Supreme

Court, underscores how little basis the majority has for not deferring to the State

court’s decision, as AEDPA requires.

Regarding evidence of DeBruce’s gastrointestinal problems, the District

Court concluded, with some understatement, that the claim “does not require

extensive analysis.” DeBruce, No. 04-2669, ECF Doc. 31, at 61. It is hard to

imagine that the jury, having just convicted DeBruce of a cold-blooded murder,

would be inclined to give him a pass because he suffers bad stomach aches.

DeBruce’s claim here is not that his diagnosis has any bearing on the murder for

which he was convicted; it’s just a reason to feel sorry for him. The Court of

Criminal Appeals was not unreasonable in concluding that this diagnosis would not

have changed DeBruce’s sentence.

DeBruce’s second category of mitigating evidence is that he is not

particularly bright. The Court of Criminal Appeals described evidence on this

point as “conflicting,” DeBruce, 890 So. 2d at 1085, because at the Rule 32

hearing the State’s expert disagreed with DeBruce’s expert about whether DeBruce

has brain damage. On the separate question of DeBruce’s IQ, the experts were

more closely aligned: the State’s expert “had evaluated DeBruce and had

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conducted several IQ tests and determined that DeBruce’s verbal IQ was 84,” id. at

1084, but agreed on cross-examination that “scores in the 70s are consistent, and it

would be consistent also with my observations of him,” State Court—Collateral

Transcript, Vol. 15, at 240. At the Rule 32 hearing, then, there were two issues in

play: whether DeBruce had brain damage, and whether DeBruce had a low-to-

average IQ. The Court of Criminal Appeals believed evidence on the first issue

was inconclusive—the State’s expert testified that DeBruce was malingering—and

believed that the second issue, standing alone, was not mitigating enough to

warrant a different sentence.

The majority says that the court was unreasonable because the inconsistency

in the expert testimony “favors DeBruce.” Maj. Op. at 29. I cannot imagine what

the majority means by that, because I cannot imagine how testimony that DeBruce

“suffers from no serious mental illness or mental defect” and was “malingering

psychological psychiatric symptoms” could possibly “favor” him. The word I

would use is “rebut,” as in: “To rebut DeBruce’s evidence, the State offered the

testimony of its own expert at the postconviction hearing.” DeBruce, 890 So. 2d at

1084. That expert “said that it was his opinion that DeBruce was not mentally

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retarded but was malingering.” Id. 7 If that kind of testimony “favors” the

petitioner, what would damaging testimony look like?

The majority simply disagrees with the Court of Criminal Appeals about the

weight of DeBruce’s IQ scores, and conflates that disagreement with AEDPA’s

reasonableness determination. The majority accuses the State court of

“discounting” evidence of DeBruce’s “mental impairments,” Maj. Op. at 28, but

the court did no such thing:

As directed by the Supreme Court in Wiggins, we have reweighed the omitted mitigating evidence—evidence indicating that DeBruce had Crohn’s disease and conflicting evidence of DeBruce’s mental health—against the aggravating circumstances that were proven in this case—the fact that the murder was committed during a robbery and the fact that DeBruce had previously been convicted of a crime of violence. Given the aggravating circumstances presented here and the cold blooded manner in which the killing occurred, we believe that DeBruce’s death sentence was appropriate.

DeBruce, 890 So. 2d at 1093 (emphasis added). The court did not “discount”

DeBruce’s mental health argument; they considered it and, in light of testimony

that DeBruce “suffers from no serious mental illness or mental defect” and was

“malingering psychological and psychiatric symptoms,” the court accurately

characterized the evidence as “conflicting.” See State Court—Collateral

7 The majority stresses that the State expert testified that DeBruce “was giving reasonable effort” during his evaluation. Maj. Op. at 29 (quoting State Court—Collateral Transcript, Vol. 16, at 236). And that is true. What the majority leaves out is that Dr. King was responding to a question about whether he felt “that [DeBruce] was putting forth maximum effort.” State Court—Collateral Transcript, Vol. 16, at 236 (emphasis added). “Reasonable effort” looks less impressive in context, so the majority just omits the context. 110 Case: 11-11535 Date Filed: 07/15/2014 Page: 111 of 117

Transcript, Vol. 15 at 231, 237. The majority, obviously, would read the transcript

more favorably for DeBruce, but that is not the question under AEDPA. Section

2254 asks whether it was unreasonable for the State court to find as it did. See

Pinholster, __ U.S. at __, 131 S. Ct. at 1411. The Court of Criminal Appeals was

not unreasonable for believing that DeBruce would not benefit from a battle of the

experts over his mental health.

The final category of mitigating evidence concerns DeBruce’s background

and upbringing, which the majority says was “heavily disadvantaged.” Maj. Op. at

21. Most of this evidence is drawn from the testimony of two of DeBruce’s sisters,

Linda and Jacqueline DeBruce, who were both in jail at the time of the Rule 32

hearing. The sisters’ testimony suggests that the DeBruce children grew up poor in

a bad neighborhood. Their father “just went to work, came home. That’s about

it.” State Court—Collateral Transcript, Vol. 17, at 347. Their mother “worked the

majority of the time.” Id. And their neighborhood “was like normal housing

projects, violence, fighting, stabbing, stuff like that.” Id. at 336. Jacqueline

testified to “occasions where a lot of guys jumped on Derrick, for what reason I

don’t know,” id. at 338, but clarified on cross-examination that “we didn’t see it,

but we know that he got beaten up because my mother had made a police report on

the guys who jumped on Derrick,” id. at 354.

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Some of the sisters’ testimony is not mitigating at all, and some of it is of

only debatable usefulness to DeBruce. When asked whether the sibling she grew

up with had any mental problems, the best Jacqueline DeBruce could come up with

was an anecdote about DeBruce forgetting to buy bread at the grocery store. Id. at

343. Likewise, she recalled that the eldest DeBruce child, Juanita, would

discipline DeBruce by withholding his favorite foods, “because he really liked to

eat what he wanted to eat.” Id. at 347.

The majority makes much of “the daily beatings that DeBruce suffered as a

child at the hands of his older sister [Juanita].” Maj. Op. at 26. These “daily

beatings” sound more like spankings in Jacqueline’s telling—“[Juanita] used to

whoop him all the time. . . . [S]he used to whoop him with extension cords,

switches and twist them together.” State Court—Collateral Transcript, Vol. 15, at

347—and it seems odd that this supposed sadist would also be the sibling most

invested in helping DeBruce with his homework: “[Juanita] used to try to help him,

or we used to have to help him also, but she used to like be a little hard on him

because he told her that he didn’t know how to do it, and she wanted to instill in

his head that he know how to do it. She used to make him do it.” Id. at 348.

Indeed, at several points Jacqueline testified that the DeBruce children were close-

knit and looked out for one another: “I used to have to dress him and tie his shoes.

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I used to have to go to the classroom door and get him all the time when the rest of

us used to meet up together somewhere.” Id. at 342.

The majority says that all this “is the kind of troubled history that the

[Supreme] Court has ‘declared relevant to assessing a defendant’s moral

culpability,’” Maj. Op. at 21 (quoting Wiggins, 539 U.S. at 535, 123 S. Ct. at

2542), but the majority is careful not to go into much detail about the troubled

histories actually described in cases like Porter, Wiggins, and Williams, because—

as the District Court recognized—“DeBruce’s childhood . . . pales in comparison

to the nightmarish childhoods experienced by the petitioners in the line of Supreme

Court cases he relies upon to support a prejudice argument.” DeBruce, No. 04-

2669, ECF Doc. 31, at 66. DeBruce did not “routinely witness[] his father beat his

mother, one time so severely that she had to go to the hospital and lost a child.”

Porter, 558 U.S. at 33, 130 S. Ct. at 449. His father never tried to shoot him. Id.

His parents did not “frequently [leave him] and his siblings home alone for days,

forcing them to beg for food and to eat paint chips and garbage.” Wiggins, 539

U.S. at 516–17, 123 S. Ct. at 2533. His mother did not have “sex with men while

her children slept in the same bed” or “force[] [his] hand against a hot stove

burner.” Id. at 517, 123 S. Ct. at 2533. DeBruce was not “repeatedly molested and

raped” by a foster parent. Id. He was not “gang-raped . . . on more than one

occasion” or “sexually abused by his supervisor” at work. Id. His parents were

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not “imprisoned for the criminal neglect” of their children, Williams, 529 U.S. at

395. 120 S. Ct. at 1514, nor did DeBruce grow up in a house with “several places

on the floor where someone had had a bowel movement,” where “[u]rine was

standing in several places in the bedrooms,” where “it was impossible to step any

place on the kitchen floor where there was no trash,” or where “[t]he children had

to be put in [the hospital], as four of them . . . were definitely under the influence

of whiskey.” Id. at n.19. “DeBruce’s childhood simply does not carry with it the

same horrors as these cases. Nor are there any hospital, social services or school

records that corroborate [Jaqueline] DeBruce’s contention that DeBruce was

physically and emotionally abused, malnourished or suffered from black outs or

seizures.” DeBruce, No. 04-2669, ECF Doc. 31, at 67. In sum, DeBruce’s case

looks nothing like the cases on which he and the majority rely. Compared side-by-

side with those cases, his prejudice argument is weak.

The majority also ignores the possibility that extended testimony about

DeBruce’s background would have been more hurtful than helpful. See Wong,

558 U.S. at 25, 130 S. Ct. at 389 (“A heavyhanded case to portray [the petitioner]

in a positive light . . . would have invited the strongest possible evidence in

rebuttal.”). The humanizing strategy the majority now advocates “would have put

into play aspects of [petitioner’s] character that would have triggered admission

of” rebuttal evidence. Id. at 22, 130 S. Ct. at 387–88. For instance, claims about

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DeBruce’s “resistance to joining gangs,” Maj. Op. at 20, would obviously open the

door to testimony about DeBruce’s participation in numerous robberies as part of a

criminal gang, including the attempted armed robbery of the Sylacauga bank that

Mathis had lobbied so vigorously to exclude in the guilt phase of the trial.

Indeed, following DeBruce’s mother’s testimony at the penalty phase of

trial, the prosecutor expressed frustration at not being allowed to rebut her

testimony: “I’m sitting back with witnesses for rebuttal.” State Court—Trial

Transcript, Vol. 7, at 1144. The prosecutor also wanted to call Gary Garner: “The

issue [of mental health] is interjected, Judge. You’ve got the defendant saying [in

the Garner Report] that he denies any prior mental health treatment or psychiatric

hospitalization, and that’s in direct conflict to the testimony [of DeBruce’s mother]

they put on.” Id. at 1151.

The defense lawyers objected. DelGrosso argued that the prosecutor “had

every opportunity in the world during the course of this trial to introduce this

defendant’s statement, and he didn’t do it. Now he’s trying to put on evidence that

he didn’t put on in his case in chief and it is not in rebuttal to anything that

[DeBruce’s mother] said.” Id. at 1148. “I don’t think we can go into any of it.

[The prosecutor] is talking about putting [Garner] on to testify about statements

that [DeBruce] made to impeach [Jessie DeBruce] . . . [the prosecutor] can’t

impeach her by saying what [DeBruce] said as far as hearsay goes.” Id. at 1150.

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There is some irony in the fact that DeBruce’s lawyers worked so hard to exclude

the testimony that DeBruce now, in hindsight, calls mitigating.

It also is not obvious that a greater focus on the DeBruce household would

have been helpful. For one thing, “some of the new testimony would likely have

undercut the mitigating value of the testimony by [petitioner’s] mother.”

Pinholster, __ U.S. at __, 131 S. Ct. at 1410. Jacqueline DeBruce testified that

DeBruce’s mother was aware of the supposedly heinous abuse Juanita was

inflicting on the children: “My mother said she left [Juanita] in control over us and

she can chastise us as she choose.” State Court—Collateral Transcript, Vol. 15, at

355. Additionally, a focus on the DeBruce family could draw lingering attention to

the other DeBruce siblings’ legal problems; Mathis tried to blunt this in his direct

examination of DeBruce’s mother by acknowledging that most of the DeBruce

sons either were, or had been, in prison. See State Court—Trial Transcript, Vol. 7,

at 1127–29. It is not clear how a sustained focus on the DeBruce family would

have helped DeBruce. See Pinholster, __ U.S. at __, 131 S. Ct. at 1410 (“The new

evidence relating to [petitioner’s] family . . . is also by no means clearly mitigating,

as the jury might have concluded that [petitioner] was simply beyond

rehabilitation.”).

In any case, the Alabama Court of Criminal Appeals considered all of the

evidence—the old and the new, the good and the bad—and determined that none

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of the new mitigating evidence was weighty enough to show a “substantial”

likelihood of a different sentence. See Harrington, __ U.S. at __, 131 S. Ct. at 792.

They were right. Stripped of rhetorical embellishment, DeBruce’s new evidence is

simply not the harrowing stuff of cases like Porter, Wiggins, or Williams. Some of

it might have even backfired and opened the door to additional damaging

testimony. The majority is wrong to find prejudice here, but it is especially wrong

to set aside the State court’s contrary judgment simply because the majority feels

differently.

V.

While I join the majority in concluding that DeBruce failed to prove that his

lawyers were ineffective in the guilt phase of his trial, I would reject his claim that

his lawyers were ineffective in the penalty phase. DeBruce had the

responsibility—and opportunity—to prove that his lawyers were genuinely

unaware of his background at trial. DeBruce responded with speculation and

bluster. Because that is not enough to warrant habeas relief, I respectfully dissent.