John Hardwick,Jr. v. Secretary, FL DOC

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 18, 2015
• Docket: 97-2319
• Status: Published

Opinion

Case: 97-2319 Date Filed: 09/18/2015 Page: 1 of 48

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 97-2319 ________________________

D.C. Docket No. 3:95-cv-00250-J-10

JOHN GARY HARDWICK, JR.,

Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

________________________

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

(September 18, 2015)

Before TJOFLAT, HULL and MARTIN, Circuit Judges.

TJOFLAT, Circuit Judge: Case: 97-2319 Date Filed: 09/18/2015 Page: 2 of 48

In Hardwick v. Crosby (Hardwick III), 320 F.3d 1127 (11th Cir. 2003), we

determined that Petitioner Hardwick was due an evidentiary hearing to determine

whether his attorney provided ineffective assistance of counsel under the Sixth

Amendment standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), during the penalty phase of his capital murder trial.

While retaining jurisdiction over the appeal, we remanded the case to the District

Court for the limited purpose of conducting that hearing. The District Court held

the hearing and found that the attorney’s performance failed to meet Strickland’s

standard. The court further found that, but for such failure, it was reasonably

probable that Hardwick would not have been sentenced to death. The District

Court therefore concluded that a writ of habeas corpus should issue as to the death

sentence.

The District Court’s findings and conclusion are now before for us for

review. We review the District Court’s legal conclusions de novo and its factual

findings for clear error. Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir. 2003).

The court’s finding of ineffective assistance of counsel presents a mixed finding of

fact and law, which we review de novo. Collier v. Turpin, 177 F.3d 1184, 1198

(11th Cir. 1998).

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In the end, we agree with the District Court. Hardwick is entitled to a writ

of habeas corpus setting aside his capital sentence and, unless the State provides

him with a new penalty phase, requiring the imposition of a life sentence.1

I.

Hardwick III provides a highly detailed account of the facts and procedural

history of Hardwick’s case. See 320 F.3d at 1131–58. We recapitulate only those

facts necessary to explain our disposition here.

Upset about the disappearance of his stash of quaaludes, Hardwick killed

seventeen-year-old Keith Pullum in the early morning hours of December 24,

1984. On March 13, 1986, after a three-day trial, Hardwick was convicted of first-

degree murder. At the penalty phase of the trial which followed, the State’s case

consisted of establishing five statutory aggravating circumstances, which, the

prosecutor argued, warranted a death-sentence recommendation. 2 The prosecutor

laid the groundwork for the first statutory aggravating circumstance by introducing

1 Hardwick also asks us to address an argument on which we reserved judgment in Hardwick III: whether his relationship with his attorney was so dysfunctional that continued representation constituted a conflict of interest and denied Hardwick his right to effective representation of counsel during the guilt phase. We find no merit in the argument and therefore reject it. The District Court’s original denial of relief on this claim is AFFIRMED. 2 To recommend the imposition of a death sentence in Florida in 1986, the jury was required to find: one or more of the enumerated aggravating circumstances set out in Fla. Stat. § 921.141(5); that sufficient mitigating circumstances outweighing the aggravating circumstances did not exist; and that the defendant should be sentenced to death. See id. § 921.141(2) (1985).

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Hardwick’s three prior felony convictions “involving the use or threat of violence

to the person.” See Fla. Stat. § 921.141(5)(b) (1985). 3 The prosecutor’s arguments

regarding the other four statutory aggravating circumstances were based on the

evidence introduced during the guilt phase of the trial, and consisted of the

following: Hardwick murdered Pullum while “kidnapping” him, see id.

§ 921.141(5)(d); the murder was committed for “pecuniary gain,” see id.

§ 921.141(5)(f); the murder was “especially heinous, atrocious, or cruel,” see id.

§ 921.141(5)(h); and the murder was committed in a “cold, calculated, and

premeditated manner without any pretense of moral or legal justification,” see id.

§ 921.141(5)(i). Emphasizing the premeditated and cruel nature of the murder, the

prosecutor told the jury that statutory mitigating factors did not exist to counter the

aggravating circumstances. The prosecutor added that “there isn’t one shred of

evidence that indicates” Hardwick was under the influence of emotional or mental

disturbance and “[t]here is no evidence” that Hardwick’s mind was impaired.

Hardwick’s attorney did not call any witnesses or present any evidence

during the penalty phase, in mitigation or otherwise. His strategy was to present

Hardwick’s case solely via his closing argument to the jury. That argument

consisted of an attempt to undermine the statutory aggravating circumstances the

3 All future references to Fla. Stat. § 921.141 refer to the 1985 version of the statute.

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State presented and an appeal for mercy based on Hardwick’s age (he was twenty-

five at the time of the crime) 4 and the sanctity of human life. Rather than give the

jury any mitigation evidence at all to consider, trial counsel’s closing and rebuttal

arguments reviewed again the evidence in keeping with the sufficiency-of-the-

evidence defense. As noted in our prior opinion, trial counsel’s “last statement to

the jury in his rebuttal argument was notable for its lack of foundation: ‘I think the

evidence is clear and the lack of evidence even clearer that John Gary Hardwick is

innocent of the crime of first degree murder.’” Hardwick III, 320 F.3d at 1150.

The jury returned a verdict recommending the imposition of a death sentence

by a seven-to-five vote. At sentencing, the trial court found the five aggravating

circumstances the State presented to the jury and no mitigating circumstances.

Accordingly, the court sentenced Hardwick to death.

On direct appeal, despite holding two of the statutory aggravating

circumstances found by the trial court—that the murder was committed during a

kidnapping, and for pecuniary gain—to be erroneous, Hardwick v. State (Hardwick

I), 521 So. 2d 1071, 1075 (Fla. 1988), superseded on other grounds by rule, Fla. R.

Crim. P. 3.111, as recognized in McKenzie v. State, 29 So. 3d 272 (Fla. 2010), the

4 One of the mitigating circumstances set out in Florida’s capital sentencing scheme is “[t]he age of the defendant at the time of the crime.” Id. § 921.141(6)(g).

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Florida Supreme Court affirmed Hardwick’s conviction and sentence, id. at 1077.

That court concluded these errors were harmless because three valid statutory

aggravating factors remained with no evidence of any mitigating circumstances in

the record before it. Id. at 1076–77.

On February 16, 1990, Hardwick moved the trial court for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. His motion included a

claim that his trial attorney rendered ineffective assistance at the penalty phase by

failing to adequately investigate and present available mitigation evidence of his

deprived and abusive childhood, the mental and physical abuse he endured during

his childhood and teen years, his dysfunctional family background of neglect and

mistreatment, his long history of substance abuse, and his drug- and alcohol-

induced impairment at the time of the murder. The court held three evidentiary

hearings on Hardwick’s claims and rejected them. The Florida Supreme Court

affirmed that decision. Hardwick v. Dugger (Hardwick II), 648 So. 2d 100, 105

(Fla. 1994) (per curiam).

On March 20, 1995, Hardwick petitioned the United States District Court for

the Middle District of Florida for a writ of habeas corpus setting aside his

conviction and sentence under 28 U.S.C. § 2254. The District Court denied his

petition on the record of the state courts’ proceedings. We affirmed its decision

with the exception of the conflict-of-interest claim, which we did not reach at that 6 Case: 97-2319 Date Filed: 09/18/2015 Page: 7 of 48

time, see supra note 1, and the ineffective assistance claim now before us.

Hardwick III, 320 F.3d at 1192. We vacated the District Court’s rejection of the

latter claim because we concluded that “[t]he entirety of Hardwick’s

postconviction record under a Strickland analysis at least strongly suggests 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.” Id. at 1191 (quotation marks omitted).

In Hardwick III, we also stressed that trial counsel Tassone (1) “presented no

mitigating evidence at the sentencing proceeding”; (2) did not obtain any school,

medical, mental health, or juvenile justice records, or any social service records

about Hardwick’s foster home placements and abuse; (3) did not ask Dr. Barnard

or anyone else to investigate or evaluate mitigation evidence relative to the

sentencing phase; and (4) indeed failed “to investigate, obtain, or present any

mitigating evidence to the jury, let alone the powerful mitigating evidence,

including Hardwick’s deprived and abusive upbringing.” Id. at 1167, 1171, 1173,

1189 (quotation marks omitted). We previously concluded that trial counsel

Tassone “appear[ed] to have given up on defending Hardwick and seemingly

expended no effort, either in presentation of mitigating evidence or in

understanding mitigation law.” Id. at 1189. Tassone did not understand mitigation

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law or the benefit to Hardwick at sentencing of having witnesses testify concerning

mitigation evidence. Id. at 1191.

In Hardwick III, we also determined that Hardwick’s family members were

present during the trial each day and repeatedly offered to testify, and the reasons

Tassone later gave for not calling family members as mitigation witnesses were not

supported by the record. Id. at 1175-77. Dr. Barnard testified that if he had been

asked to evaluate mitigation evidence, such as Hardwick’s poor and abusive family

life and its effect on his life, he would have been willing to do so. Id. at 1171-72.

Importantly too, the majority in Hardwick III expressly concluded that the

state court’s findings of fact on Hardwick’s ineffective counsel claim were not

supported by the record for various reasons. Id. at 1185 n.207.

Having found “the state [courts’ Rule 3.850] findings and consequent legal

conclusions relating to the penalty phase . . . untenable,” id. at 1184 n.207, we

remanded the case, instructing the District Court to consider “the statutory and

nonstatutory mitigating evidence that [counsel] could have presented at the state

[court] sentencing proceeding,” id. at 1192; weigh “the totality of this mitigating

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evidence . . . against the valid aggravating factors,” id.; and “determine whether

Hardwick is entitled to habeas relief,” id. at 93. 5

We marked out a broad scope for the hearing, stating that “we d[id] not want

to inhibit the district judge in his conduct of an evidentiary hearing” on the issue of

ineffective assistance at the penalty phase. Id. at 1192 n.219. We directed the

District Court to evaluate

the full exposition of Hardwick’s deprived and abusive childhood and adolescence, including longstanding alcohol and drug dependency; his binge or extensive and consistent consumption of drugs and alcohol during the relevant time period of Pullum’s homicide; and the testimony of examining experts as to the presence of statutory and nonstatutory mitigating factors, especially, his ability to conform his conduct to the dictates of law. Id. We added that “to the extent that evidence at the federal hearing may exceed

that presented in state court, . . . Hardwick already has proffered specific facts that

overcome the procedural bar.” 6 Id. We also specifically dictated that “the district

5 The dissent disagreed with the majority opinion over whether certain state court findings of fact were supported by the record. Hardwick III, 320 F.3d at 1193-97. 6 As we explained in Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996),

[a] state habeas petitioner is not entitled to an evidentiary hearing in federal court on the merits of a procedurally defaulted claim unless he can first overcome the procedural bar. This requires showing either cause for failing to develop in state court proceedings the facts supporting his claim, and prejudice resulting from that failure, or a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.

Id. (citations and quotation marks omitted).

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judge must consider the various affidavits . . . from the state 3.850 proceeding.”

Id. at 1186 n.207.7

Pursuant to our instructions, the District Court held an evidentiary hearing

on February 17–19, 2009. At the hearing, Hardwick called seven witnesses. First,

three experienced capital defense attorneys testified as to the standard among

defense attorneys in the mid-1980s for investigating and presenting mitigation

evidence. Next, Dr. Jethro Toomer, a clinical psychologist, testified about the use

of mental-health mitigation in the mid-1980s and explained the specific mitigating

evidence available in Hardwick’s case. Then Mary Braddy, a correctional officer

That standard was met in Hardwick’s case, we explained, because “[Defense counsel’s] failure to call defense witnesses Hardwick desired or to provide Hardwick any defense at the guilt or sentencing phase” provided cause, and “the seven/five jury recommendation for death, when knowledge and presentation of the applicable statutory and nonstatutory mitigating factors well may have resulted in one more vote that would have rendered a jury recommendation of life rather than death,” constituted prejudice sufficient to excuse the default. Hardwick III, 320 F.3d at 1192 n.219. 7 As part of Hardwick III’s mandate, the District Court was bound to follow this instruction. Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1510–11 (11th Cir. 1987) (en banc) (“A district court when acting under an appellate court’s mandate, ‘cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon a matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.’” (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S. Ct. 291, 293, 40 L. Ed. 414 (1895)). Thus, any argument that it was error for the District Court to rely on these affidavits is barred. See United States v. Amedeo, 487 F.3d 823, 829–30 (11th Cir. 2007). We decline to consider the State’s belated attempt to identify an applicable exception to the mandate rule, made for the first time on appeal in a post-oral- argument letter submitted pursuant to Federal Rule of Civil Procedure 28(j). See Adkins v. Warden, Holman CF, 710 F.3d 1241, 1246–47 (11th Cir.).

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who interacted with Hardwick at the Duval County jail shortly after his arrest,

testified as to her perception of his level of mental impairment at that time. Gary

Hendrix, an investigator in the Public Defender’s office who assisted with the

investigation prior to Hardwick’s Rule 3.850 motion in 1990, then testified about

standard procedures involved in conducting a mitigation investigation. Finally,

Hardwick’s trial counsel testified about his reasons for not presenting any

mitigating evidence during the penalty phase. The State called one witness, Dr.

Ernest Miller, a psychiatrist, who testified as to the state of the field of mental

health mitigation in the mid-1980s, particularly as it related to substance abuse and

a diagnosis of antisocial personality disorder. In addition to this testimony, the

District Court considered the record of the state court trial and post-conviction

proceedings, and twenty-three exhibits introduced by the parties, including

Hardwick’s school, social services, and juvenile justice records; the reports of

several mental health professionals; notes and billing records made by Hardwick’s

trial counsel; and affidavits from Hardwick’s family and acquaintances that were

introduced in the Rule 3.850 proceedings.

After conducting an evidentiary hearing and reviewing the record before it,

the District Court found that counsel rendered ineffective assistance under

Strickland. That is, the court found that counsel’s performance fell below an

objective standard of reasonableness and that, but for his deficient performance, it 11 Case: 97-2319 Date Filed: 09/18/2015 Page: 12 of 48

was reasonably probable that Hardwick would not have been sentenced to death.

The District Court entered a 111-page order with extensive findings of fact and

conclusions of law.

II.

Before beginning our discussion of the merits, we think it might be helpful

to clarify the legal posture of Hardwick’s case.

Because Hardwick filed his § 2254 petition prior to April 24, 1996, the

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2241, et seq., we apply pre-AEDPA law. Lindh v.

Murphy, 521 U.S. 320, 336–37, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997);

Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir. 2002). That Hardwick’s appeal

is not governed by AEDPA means that we are not constrained by AEDPA’s

“highly deferential” standard of review of state court adjudications. Lindh, 521

U.S. at 333 n.7, 117 S. Ct. at 2066 n.7. Under AEDPA, a federal court may only

grant habeas relief to a state prisoner where the state court’s adjudication of the

petitioner’s claim “was contrary to . . . Federal law” as clearly established by

Supreme Court holdings, § 2254(d)(1); “involved an unreasonable application” of

such law, id.; or “was based on an unreasonable determination of the facts” in light

of the record before the state court, § 2254(d)(2). Thus, “[t]he question under

AEDPA is not whether a federal court believes the state court’s determination was 12 Case: 97-2319 Date Filed: 09/18/2015 Page: 13 of 48

incorrect but whether that determination was unreasonable—a substantially higher

threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939, 167

L. Ed. 2d 836 (2007).

Under pre-AEDPA law, however, a federal habeas court decides questions

such as whether habeas relief is warranted or whether counsel rendered ineffective

assistance—i.e., pure questions of law and mixed questions of law and fact—

independently of all prior adjudications. See, e.g., Freund v. Butterworth, 165 F.3d

839, 861 (11th Cir. 1999) (en banc) (“Questions of law and mixed questions of law

and fact . . . mandate de novo review.”); 2 Randy Hertz & James S. Liebman,

Federal Habeas Corpus Practice and Procedure, § 32.1, at 1746 (6th ed. 2011)

(“Until Congress’ enactment of AEDPA, it was blackletter law that federal habeas

courts were required to resolve all of the petitioner’s legal claims de novo in the

strictest sense of that term. Insofar as the petition presented questions of law or

mixed questions of law and fact, the federal courts were required to treat the

petition as a wholly new complaint, which originated an independent civil suit and

deserved to be adjudicated from scratch—as if, in effect, a state court had not

already adjudicated the same claims in the same case.” (footnotes and quotation

marks omitted)).

Accordingly, the District Court’s task, now subject to our de novo review,

was not limited merely to assessing the reasonableness of the state court’s 13 Case: 97-2319 Date Filed: 09/18/2015 Page: 14 of 48

application of the Strickland standard; rather, it was to apply Strickland’s standard

directly. Cf. Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 785, 178 L.

Ed. 2d 624 (2011) (stating that under AEDPA, “[a] state court must be granted a

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

under the Strickland standard itself”).

In contrast to determinations of law, under both AEDPA and pre-AEDPA

law, state court factual findings are generally due a presumption of correctness.

Compare 28 U.S.C. § 2254(e)(1), and Schriro, 550 U.S. at 473–74, 127 S. Ct. at

1939–40 (“AEDPA also requires federal habeas courts to presume the correctness

of state courts’ factual findings unless applicants rebut this presumption with clear

and convincing evidence.” (quotation marks omitted)), with Hardwick III, 320 F.3d

at 1158 (explaining that under pre-AEDPA law, “factual findings by a state court

following a merits hearing on the claims raised generally are accorded a

presumption of correctness” unless one of “the eight exceptions in former

§ 2254(d) apply”). That general rule does not hold here, however.

In Hardwick III, we found that several of the exceptions in the former

§ 2254(d) applied to the state court’s factual findings regarding the penalty phase

of Hardwick’s trial, and therefore the state court factual findings “are not entitled

to a presumption of correctness.” See 320 F.3d at 1158–59 n.141, id. at 1184 n.207

(finding some of the state court’s findings unreliable in part because of the absence 14 Case: 97-2319 Date Filed: 09/18/2015 Page: 15 of 48

of “a full, fair, and adequate hearing”; discounting others as “not fairly supported

by the record”; and ultimately concluding that the state court’s penalty-phase-

related factual findings were “untenable,” “not consistent with the record,” and

even “contradicted by the record”). As a result of our Hardwick III decision, there

is no presumption of correctness as to those findings and the District Court was

free to make its own findings of fact based on the record before it. 8

The combined effect of these points—first, the District Court’s obligation to

resolve the legal issues surrounding Hardwick’s claim without deference to any

prior state court adjudications, which derives from the nature of the pre-AEDPA

civil habeas suit, and second, the lack of any presumption of correctness due to the

factual findings of the state court, as a result of our finding in Hardwick III—is that

the District Court was effectively writing on a blank slate in adjudicating

Hardwick’s claim. We proceed with that understanding.

8 The State asserts that on Hardwick’s prima facie showing that the state court proceedings were not full, fair, and adequate, Hardwick III consigned the state court’s factual findings to a kind of evidentiary purgatory. Since the testimony at the subsequent evidentiary hearing did not, in all respects, contravene the state court’s findings, the State urges that the findings must now be revived and “given their due deference.” We decline to adopt the State’s novel position , especially in light of our prior opinion in Hardwick III concluding those fact findings were not fairly supported by the record or contradicted by the record.

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III.

Hardwick asserts—and the District Court found—that he was denied his

Sixth Amendment right 9 to the effective assistance of counsel when his attorney

failed to investigate, discover, and present substantial mitigating evidence to the

sentencing jury. As set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), to establish a denial of this right, a habeas

petitioner must show (1) “that counsel’s performance was deficient”; and (2) “that

the deficient performance prejudiced [his] defense.” Id. at 687, 104 S. Ct. at 2064.

A.

1.

Deficient performance is defined as “representation [that] f[alls] below an

objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064. “[T]rial

counsel’s failure to present mitigating evidence is not per se ineffective assistance

of counsel,” Stevens v. Zant, 968 F.2d 1076, 1082 (11th Cir. 1992); it can, on

occasion, be justified as a strategic choice, e.g., Lightbourne v. Dugger, 829 F.2d

1012, 1025 (11th Cir. 1987). As a general matter, a high level of deference is

accorded an attorney’s strategic decisions. See, e.g., Strickland, 466 U.S. at 690,

9 The Sixth Amendment right to counsel in capital cases was incorporated against the States via the Due Process Clause of the Fourteenth Amendment in Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158 (1932).

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104 S. Ct. at 2066 (“[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable . . . .”).

However, a decision not to put on mitigating evidence is only reasonable, and thus

due deference, to the extent it is based on a professionally reasonable investigation.

Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471

(2003).

Accordingly, the first question the District Court had to answer was

“whether the investigation supporting counsel’s decision not to introduce

mitigating evidence of [Hardwick’s] background was itself reasonable.” Id., 539

U.S. at 523, 123 S. Ct. at 2536 (emphasis omitted). This is an objective inquiry, as

measured from counsel’s perspective. Id. In other words, the District Court had to

put itself in counsel’s shoes, review the information of which he was or should

have been aware, and determine what a reasonable attorney would have done under

those circumstances. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

The Supreme Court has cautioned that a federal habeas court is to avoid

concluding “that it 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.” See Cullen v. Pinholster,

___ U.S. ___, ___, 131 S. Ct. 1388, 1406–07, 179 L. Ed. 2d 557 (2011) (quotation

marks and alterations omitted). “Strickland itself rejected the notion that the same 17 Case: 97-2319 Date Filed: 09/18/2015 Page: 18 of 48

investigation will be required in every case.” Id. Instead, “the Strickland test of

necessity requires a case-by-case examination of the evidence.” Id. at ___, 131 S.

Ct. at 1407 n.17 (quotation marks omitted). Thus, in each case, it must be

determined “whether counsel conducted a reasonable background investigation or

made a reasonable decision that made conducting a background investigation

unnecessary.” Johnson v. Sec’y, Dept. of Corr., 643 F.3d 907, 931 (11th Cir.

2011) (quotation marks omitted).

2.

The District Court found that Hardwick’s attorney failed to conduct a

professionally reasonable mitigation investigation under the circumstances. It did

so based on its subsidiary findings about what counsel knew about Hardwick and

his background, and what counsel then failed to do and learn about Hardwick and

his childhood background.

The District Court found that the attorney was aware of a number of red

flags, which—given his knowledge of Hardwick’s grave legal situation—should

have highlighted the need to conduct at least some life-history investigation and at

least some mitigation investigation. Regarding Hardwick’s legal situation, counsel

testified that he believed Hardwick would be convicted of first-degree murder. He

also knew that the State would likely seek the death penalty on the basis of several

aggravating circumstances, and, if so, that the jury would be instructed that unless 18 Case: 97-2319 Date Filed: 09/18/2015 Page: 19 of 48

the defense presented mitigation evidence sufficient to outweigh the aggravating

circumstances, they must recommend a sentence of death. Given these

circumstances, counsel knew, or should have known, that Hardwick’s defense in

the penalty phase—specifically, the presence or absence of mitigating evidence—

would be pivotal.

Hardwick’s attorney was aware of potential sources of mitigating evidence.

For example, from the outset of his representation, he had notes that an Assistant

Public Defender had taken during a preliminary interview with Hardwick.10 These

notes contained the names of Hardwick’s parents and all ten of his siblings, three

of the schools he had attended, contact information for a mental health evaluation

center in South Carolina where Hardwick had been diagnosed with schizophrenia,

a list of Hardwick’s medications, and information that Hardwick had been using

drugs and alcohol since the age of eleven or twelve.

Counsel also knew from speaking with Hardwick and his mother that his

childhood was marked by neglect and physical and sexual abuse; and that he had

spent a great deal of his youth in foster homes, in the care of social services, and in

juvenile detention. Moreover, counsel also knew from the pretrial deposition

10 The Office of the Public Defender had originally been appointed to represent Hardwick, but had to recuse itself shortly thereafter upon discovering a conflict.

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testimony of a number of witnesses that Hardwick had ingested a substantial

amount of drugs and alcohol prior to the murder.

Additionally, counsel also had the benefit of an evaluation of Hardwick,

performed by a court-appointed expert, Dr. George Barnard, a psychiatrist. The

District Court found that “Dr. Barnard was appointed solely to evaluate Hardwick

for competency and sanity, not for mitigation,” and that Tassone did not discuss

mitigation with Dr. Barnard. The District Court also found that Tassone did not

provide Dr. Barnard with any pretrial depositions, any historical records, or even

the limited background information obtained from the Public Defender’s file. Trial

counsel did not give Dr. Barnard any of Hardwick’s life history. The District

Court concluded that Dr. Barnard’s report—though conducted solely for the

purpose of evaluating Hardwick’s sanity and competency to stand trial—was filled

with “many red flags that [sh]ould have spotlighted the need for a mental health

expert to evaluate the case for mitigation.”

Dr. Barnard’s report recounted Hardwick’s description of the circumstances

of the crime, including his heavy ingestion of marijuana, quaaludes, beer, and

vodka prior to committing the murder, and a blow-by-blow account of how he had

killed Pullum. The report also summarily gave a few pieces of Hardwick’s family

background. His father was an alcoholic; both of his parents were married and

divorced multiple times; his mother, unable to care for him, placed him in a boys’ 20 Case: 97-2319 Date Filed: 09/18/2015 Page: 21 of 48

home for a year and a half when he was six; thereafter, when not in reform school

or other juvenile institutions, he was shuttled between various parents and step-

parents, several of whom subjected him to beatings and abuse. Hardwick

described how by the age of twelve or thirteen, he was using alcohol and various

drugs on a regular, if not daily basis. By the age of thirteen, he was experiencing

blackouts due to alcohol abuse and had spent two weeks in the hospital after

contracting hepatitis from a dirty needle. Dr. Barnard’s report concluded that

Hardwick “me[t] the criteria . . . for multiple substance abuse [disorder] and for

anti-social personality disorder,” but that he was aware of his actions and their

wrongfulness at the time of the offense —i.e., he was not insane at the time—and

was competent to stand trial.

The District Court found that despite his awareness of this information,

Hardwick’s attorney did not conduct a life-history investigation or follow up on

any leads. He failed to obtain any of Hardwick’s readily available life-history

records, such as his school, medical, psychiatric, foster care, juvenile justice, or

social-services records, even though the notes provided by the Assistant Public

Defender clearly pointed him toward such information. Other than Hardwick’s

mother, the attorney failed to ask any of Hardwick’s family members about

Hardwick’s dysfunctional upbringing or extended history of substance abuse prior

to trial, even though several family members were willing and available to testify 21 Case: 97-2319 Date Filed: 09/18/2015 Page: 22 of 48

to these circumstances. 11 And, critically, counsel failed to provide any of this

information to Dr. Barnard or another mental health expert, or seek an opinion as

to the presence of mitigating evidence or evidence that might undermine one or

more of the aggravated circumstances the State would be relying on, despite the

availability of mental health experts who could have rendered such an opinion.

The District Court concluded that the combination of these factors—

counsel’s awareness of information signaling the presence of significant mitigation

lying just beneath the surface and his failure to perform even a rudimentary amount

of investigating—led ineluctably to the finding that counsel’s performance was

deficient.

We agree. Under the prevailing professional norms at the time of

Hardwick’s trial in 1986, defense attorneys in capital cases had a clear “obligation

to conduct a thorough investigation of the defendant’s background.” See Williams

v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1515, 146 L. Ed. 2d 389 (2000)

(citing 1 ABA Standards for Criminal Justice 4-4.1, cmt. (2d ed. 1980)); cf. Porter

v. McCollum, ___ U.S. ___, ___, 130 S. Ct. 447, 452, 175 L. Ed. 2d 398 (2009)

11 The District Court noted that counsel testified that he had several conversations with one of Hardwick’s brothers after the start of Hardwick’s trial, but he acknowledged that he had no contact with the brother pretrial. Counsel also testified that he tried to speak with Hardwick’s fifteen-year-old wife, but abandoned the attempt when it became clear that she was not going to be a reliable witness.

22 Case: 97-2319 Date Filed: 09/18/2015 Page: 23 of 48

(per curiam) (“It is unquestioned that under the prevailing professional norms at

the time of [the 1988] trial, counsel had an obligation to conduct a thorough

investigation of the defendant’s background.” (quotation marks omitted)).

As we have noted in the context of pretrial guilt-phase investigations, the

obligation to conduct a reasonable investigation does not require defense counsel

to “discern every possible avenue which may hurt or help the client,” but it does

require counsel to “make an effort to investigate the obvious.” House v. Balkcom,

725 F.2d 608, 618 (11th Cir. 1984). Thus, for example, the Supreme Court held in

Williams v. Taylor “that counsel’s failure to uncover and present voluminous

mitigating evidence at sentencing could not be justified as a tactical decision to

focus on Williams’ voluntary confessions, because counsel had not ‘fulfill[ed] their

obligation to conduct a thorough investigation of the defendant’s background.’”

Wiggins, 539 U.S. at 522, 123 S. Ct. at 2535 (quoting Williams, 529 U.S. at 396,

120 S. Ct. at 1515).

Here, Hardwick’s attorney had ample information signaling the existence of

potential significant mitigation evidence. He knew that Hardwick had been raised

in an abusive environment and has been in and out of foster and boys’ homes;

knew that Hardwick had been abusing drugs and alcohol for over a decade; and

knew of Hardwick’s particularly heavy usage of quaaludes, marijuana, and alcohol

immediately prior to the murder. Counsel was also aware of witnesses who would 23 Case: 97-2319 Date Filed: 09/18/2015 Page: 24 of 48

have provided documentary and testimonial support for these facts. As the District

Court found, reasonable capital defense attorneys at the time would have pursued

these avenues of mitigation by seeking Hardwick’s life-history records and

interviewing his family members, and then by providing this information to Dr.

Barnard or another mental health expert pursuant to a mental health mitigation

evaluation.

This information should have highlighted for counsel the need for at least

some mitigation investigation and a mitigation-focused evaluation by Dr. Barnard

or another mental health expert. Unfortunately, it did not. The record fully

supports the District Court’s findings that counsel did not obtain any of

Hardwick’s life-history records or conduct a life-history investigation, much less

even a rudimentary mitigation investigation. The District Court properly

concluded that counsel’s performance fell below the objective standard of

reasonableness required by the Sixth Amendment.

3.

In opposition, the State summarily declares that counsel “conducted a

reasonable investigation.” But the State cannot dictate reality by fiat. The State

offers virtually nothing to counter the District Court’s factual findings that counsel

obtained no life-history records, had very little contact with Hardwick’s family

regarding potential mitigation testimony, and, having been put on notice about the 24 Case: 97-2319 Date Filed: 09/18/2015 Page: 25 of 48

presence of potential mental health-related mitigators in Hardwick’s background,

failed to conduct any mitigation investigation or to request a mitigation evaluation

from Dr. Barnard or another mental health expert. These findings are not clearly

erroneous; thus the District Court did not err in concluding that the investigation

was unreasonable.

The State spends the bulk of its rhetorical energy constructing arguments

founded on the assumption that the relevant issue is whether counsel’s failure to

present mitigation evidence during the sentencing phase constituted deficient

performance. First, the State contends that counsel made a reasonable strategic

decision not to put on any evidence of Hardwick’s childhood background or his

substance abuse. In light of Hardwick’s criminal history, his diagnosis of

antisocial personality disorder, and the prosecution’s attempt to paint Hardwick as

a drug enforcer, the State argues, counsel reasonably decided not to add fuel to the

fire by parading Hardwick’s checkered past before the jury. Second, the State

maintains that counsel’s decision not to put on any mitigation case whatsoever was

due in part to the refusal of Hardwick’s mother and brother to testify at the penalty

phase. Lacking his star witnesses, counsel’s decision not to put on a mitigation

case must have been reasonable. Finally, the State argues that Hardwick told

counsel that he did not want any witnesses presented in the penalty phase. In

25 Case: 97-2319 Date Filed: 09/18/2015 Page: 26 of 48

following Hardwick’s explicit command, counsel could not have been acting

unreasonably.

As a preliminary matter, the District Court made fact findings that

undermine all of the State’s arguments. For example, the District Court found that

Hardwick’s mother and brother “adamantly denied Tassone’s assertions that they

were not willing to testify” and testified they were present at trial and willing to

testify. The District Court found them “credible” and expressly found they “were

available and willing to testify on Hardwick’s behalf.” 12 As discussed more later,

the District Court also found that Hardwick “would have permitted [counsel] to

introduce some mitigation evidence.”

Furthermore, the fatal flaw in all of the State’s arguments is that the

reasonableness of counsel’s decision whether to present mitigation evidence is not

the relevant issue at this point. The District Court’s “principal concern in deciding

whether [Hardwick’s attorney] exercised ‘reasonable professional judgmen[t],’

[was] not whether counsel should have presented a mitigation case. Rather, [the]

focus [was] on whether the investigation supporting counsel’s decision not to

12 This Court in Hardwick III also already rejected this contention. See Hardwick, 320 F.3d at 1185 n.207 (Tassone’s claims about Hardwick’s mother are “inconsistent with the record evidence of [her] actions, such as attending his trial daily, and their care and concern for each other, demonstrated by such examples as Hardwick’s going to her home to wish her a Merry Christmas, even in a very drunk and drugged state, and her visiting him regularly in prison.”)

26 Case: 97-2319 Date Filed: 09/18/2015 Page: 27 of 48

introduce mitigating evidence of [Hardwick’s] background was itself reasonable.”

See Wiggins, 539 U.S. at 522–23, 123 S. Ct. at 2536 (citation omitted) (quoting

Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). Even were we to credit all of the

State’s arguments, this would not somehow transform counsel’s unreasonable

investigation into a reasonable one. For example, here the District Court found

that counsel failed to obtain any life-history records at all and failed to conduct any

life-history investigation at all. Given all of the fact findings made by the District

Court, the scope of counsel’s investigation was thus unreasonably limited, the

District Court did not need to go further to find deficient performance under

Strickland. Nor do we.

B.

We thus turn to the District Court’s finding of Strickland prejudice. To

prevail under Strickland’s second prong, Hardwick had to demonstrate that but for

counsel’s deficient performance, “there is a reasonable probability he would have

received a different sentence.” See Porter, 558 U.S. at 41, 130 S. Ct. at 453. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. That probability is

assessed by considering “‘the totality of the available mitigation evidence—both

that adduced at trial, and the evidence adduced in the habeas proceeding’—and

‘reweighing it against the evidence in aggravation.’” Porter, 558 U.S. at 41, 130 27 Case: 97-2319 Date Filed: 09/18/2015 Page: 28 of 48

S. Ct. at 453–54 (alteration omitted) (quoting Williams, 529 U.S. at 397–98, 120 S.

Ct. at 1515).

For example, the District Court found that trial counsel failed to obtain any

life-history records and failed to conduct any life-history investigation, even

though Hardwick had been in boys’ homes and foster homes and had had mental

problems, including a diagnosis of schizophrenia, and even though such records

were readily available from schools, jails, a medical center, and several social

service agencies that had interacted with Hardwick.

Ultimately, the focus of our inquiry is the fundamental fairness of the

sentencing proceeding. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069. If we

adjudge that the result of that proceeding “is unreliable because of a breakdown in

the adversarial process,” we must affirm. See id.at 696, 104 S. Ct. at 2069.

The District Court found it “abundantly evident that statutory and

nonstatutory mitigating factors existed that [counsel] should have presented to

provide Hardwick a defense at sentencing and to make a case for sparing his life.”

First, and foremost, the District Court found that had counsel presented the

evidence a professionally reasonable investigation would have uncovered, counsel

could have argued as a statutory mitigating circumstance that, at the time of the

murder, Hardwick’s capacity “to conform his conduct to the requirements of the 28 Case: 97-2319 Date Filed: 09/18/2015 Page: 29 of 48

law was substantially impaired.” See Fla. Stat. § 921.141(6)(f). This finding is

amply supported by the record. 13

The length and magnitude of Hardwick’s substance abuse and dependency

are well-established. At the time of the murder, Hardwick had been sniffing,

smoking, injecting, drinking, or otherwise ingesting a wide variety of drugs and

alcohol on a regular basis for more than half of his twenty-five years. Hardwick

had already begun his alcohol and drug use by age twelve. His mother neglected

him and placed him in a boys’ home at age seven, but he repeatedly ran away and

returned to his physically abusive father who gave him drugs and alcohol to keep

him occupied. By age thirteen, Hardwick was having alcohol-induced blackouts

and contracted hepatitis from dirty intravenous needles. In 1974, at age fifteen,

Hardwick attempted suicide twice; first by drug overdose, and then by slashing his

wrists. Dr. Toomer opined at the evidentiary hearing that when substance abuse 13 The District Court also found that had counsel conducted a reasonable investigation, counsel would have discovered evidence implicating two additional statutory mitigating circumstances: that Hardwick acted “under the substantial domination of another person”; and that he committed the murder “while . . . under the influence of extreme mental or emotional disturbance.” See Fla. Stat. § 921.141(6)(e), (b). The District Court grounded its finding regarding the presence of the substantial-domination mitigator in Dr. Levin’s Rule 3.850 hearing testimony that Hardwick had admitted to him that another individual was present while the crime was being committed, and that the other individual encouraged Hardwick to complete the job of killing Pullum. As for the extreme-mental-disturbance mitigator, the District Court appears to have credited testimony by Dr. Barnard at the Rule 3.850 hearing that during the weekend on which the murder occurred, Hardwick’s wife told him that she was going to leave him. We find the presence of the substantial-impairment mitigator sufficient to support our disposition and thus focus our attention accordingly.

29 Case: 97-2319 Date Filed: 09/18/2015 Page: 30 of 48

begins at such a young age and occurs for an extended period of time, it generally

results in significant psychological and functional impairment. In his words, the

end is result is “an individual who is unable to function effectively, i.e., in terms of

what we call executive functioning[:] weighing alternatives, projecting

consequences, managing what we call high order thought . . . .”

The record is also uncontroverted as to Hardwick’s heavy intake of drugs

and alcohol around the time of the murder. Several of his associates averred that

they saw him taking quaaludes, smoking marijuana, and drinking vodka the day

before the murder. At least one witness described him sweating heavily, shaking,

and acting erratically shortly after the murder occurred; another recalled that his

speech was incoherent and slurred. Correctional officer Mary Braddy saw

Hardwick shortly after his incarceration, two days after the murder, and testified

that he did not appear to be aware of her presence, his eyes were glassy and vacant,

and he appeared to be either high or intoxicated.

As pointed out in our Hardwick III, Dr. Levin considered that during the five

days leading to his offense Hardwick “ingested forty or fifty [ ] Quaaludes,

continually smoked marijuana, drank a fifth of vodka, and shared a couple of cases

of beer with friends.” Darlene Hardwick observed that Hardwick was intoxicated

during those five days and Hardwick got “little sleep during this period.” Dr. Dee,

30 Case: 97-2319 Date Filed: 09/18/2015 Page: 31 of 48

who also interviewed Hardwick, concluded that Hardwick was “acutely

intoxicated” at the time of the offense.

Dr. Toomer testified, based on his personal evaluation of Hardwick before

the evidentiary hearing in federal court, and his review of the witness accounts of

Hardwick’s intoxicated condition at the time of the crime, and the life-history

records detailing Hardwick’s history of drug and alcohol abuse, that Hardwick’s

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

impaired at the time of the murder. In reaching this conclusion, Dr. Toomer

echoed the opinions of the mental health experts in the state Rule 3.850

proceedings, Dr. Barnard, Dr. Levin, and Dr. Dee. Each of these experts

concluded, based on the postconviction evidence outlined above, that Hardwick’s

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

impaired at the time of the offense. Dr. Toomer further testified that had he been

provided with the witness accounts of Hardwick’s condition at the time of the

murder and Hardwick’s extensive life-history records, and asked to render an

opinion as to the presence of this statutory mitigating factor at the time of

Hardwick’s trial, he would have been able to answer affirmatively.

Reviewing this evidence, we cannot say that the District Court erred in

finding that, but for counsel’s failure to conduct a reasonable investigation, this

statutory mitigating circumstance could have been argued to the jury. As Dr. 31 Case: 97-2319 Date Filed: 09/18/2015 Page: 32 of 48

Toomer explained, and as documented by the extensive life-history records,

Hardwick was already suffering from significant psychological and functional

impairment due to his early and extended exposure to drugs and alcohol—not to

mention the physically abusive and deprived childhood and the extensive family

trauma that precipitated his substance abuse. When compounded by his holiday

drug and alcohol binge, it seems highly likely that Hardwick’s capacity to conform

his behavior to societal standards was substantially impaired at the time of the

murder. See Brownlee, 306 F.3d at 1070 (noting the defendant’s pre-existing

intellectual and psychiatric impairment and concluding that “[d]rug or alcohol use

on the day of the crime would have substantially aggravated these pre-existing

limitations”).

The District Court then turned to nonstatutory mitigation. Citing the

aforementioned evidence of Hardwick’s background, the District Court concluded

that “Hardwick’s turbulent family history, dysfunctional upbringing,

mental/physical abuse and early alcohol/drug use and addiction” constituted

compelling mitigating circumstances that would have supported a life sentence.

Having thoroughly reviewed the record, we are in agreement with the

District Court’s conclusion. Lay witness accounts, evaluations by mental health

experts, and Hardwick’s life-history records all tell a clear, consistent tale of abuse,

neglect, and dysfunction. Hardwick’s father was an alcoholic and physically 32 Case: 97-2319 Date Filed: 09/18/2015 Page: 33 of 48

abusive of both Hardwick’s mother and Hardwick himself—to the point of

wrenching Hardwick’s shoulder out of its socket on one occasion. Another time

Hardwick’s father beat his son “with a belt so badly that the blood came up to the

skin.” Hardwick’s father also would “take his shoe and kick [Hardwick] with it.”

Hardwick’s family lived in poverty because his father, a severe alcoholic, spent

much of his money on alcohol and could not maintain a job. Hardwick’s family

lived in substandard housing, moved frequently, and did not have adequate food

and clothing. His father beat his mother, leaving cuts, bruises, and black eyes. His

mother was emotionally detached and unable to provide the attention, discipline,

and care Hardwick needed. After his parents divorced when he was four,

Hardwick was frequently left to fend for himself during his pre-teen years,

sometimes hitchhiking alone between his father’s house in South Carolina and his

mother and step-father’s residence in Florida. Neither location was safe: his

mother neglected him to avoid triggering her new husband’s jealous rage, and his

father would beat him. At age seven, Hardwick was placed in a boys’ home

because his mother was pregnant again and could not take care of him. Hardwick

repeatedly ran away from the institution to return to his abusive father in South

Carolina. Eventually, social services found the father’s home unfit and placed

Hardwick in a foster home. Hardwick’s mother had a total of eleven children with

three different husbands and never took care of Hardwick either. By the age of 33 Case: 97-2319 Date Filed: 09/18/2015 Page: 34 of 48

eleven, Hardwick had begun drinking alcohol, sniffing glue, and smoking

marijuana. Over the course of his teenage years, Hardwick was in and out of

juvenile institutions for a variety of theft and drug-related offenses. His

institutional records include reports of depression, mood swings, and multiple

suicide attempts. At one point, Hardwick was diagnosed with schizophrenia and

the records show his medications included Thorazine, Sinequan, and Elavil. In

sum, there is ample evidence of “the kind of troubled history [the Supreme Court]

ha[s] declared relevant to assessing a defendant’s moral culpability.” See Wiggins,

539 U.S. at 535, 123 S. Ct. at 2542.

The jury and the trial judge, however, heard none of it. Counsel’s failure to

investigate and present even the least bit of this powerful mitigating evidence

enabled the prosecutor to emphasize repeatedly in closing arguments that there

were no mitigating circumstances in Hardwick’s case. For instance, the jury was

told “there is absolutely no evidence . . . that the defendant’s mind was impaired or

that he was out of control. . . . There is no evidence that has been presented to you

for you to conclude that . . . this mitigating circumstance applies. That mitigating

factor does not apply . . . .” We are left with the distinct sense that, had the jury

been presented with this copious and powerful mitigating evidence a reasonable

investigation would have uncovered, there is at least a reasonable probability that

Hardwick would not have received a death sentence. 34 Case: 97-2319 Date Filed: 09/18/2015 Page: 35 of 48

The State raises several points that, it contends, demonstrate that Hardwick

was not prejudiced by counsel’s deficient performance. First, the State argues that

the District Court did not give proper weight to the aggravating circumstances.

Second, the State argues that the District Court overlooked the harmful effects that

would have flowed from the introduction of this mitigating evidence. Third, the

State posits that a finding of prejudice is precluded by Hardwick’s instruction to

counsel not to present any mitigation evidence at the penalty phase. We address

each argument in turn.

The State correctly observes that the District Court was required to place

both the aggravating circumstances and the mitigating circumstances in the scales

to appropriately weigh them. See Collier v. Turpin, 177 F.3d 1184, 1203 (11th Cir.

1998) (“In evaluating the probability that Collier’s jury would have rejected the

death penalty, we must not forget to balance the aggravating and mitigating factors

that would have been before the jury in the absence of his counsels’ errors.”). The

State argues that the aggravating circumstances present in this case are so weighty

that the addition of the mitigating evidence the District Court identified would

have made no difference in the jury’s recommendation or Hardwick’s ultimate

sentence. In a related vein, the State also asserts that the District Court erred in 35 Case: 97-2319 Date Filed: 09/18/2015 Page: 36 of 48

finding that the mitigating evidence would have undermined the weight of the

aggravating circumstances found by the sentencing judge. We disagree with both

assertions.

The Florida Supreme Court held that the sentencing judge properly found

three aggravating circumstances in Hardwick’s case: (1) that Hardwick had prior

violent felony convictions; (2) that the murder was heinous, atrocious and cruel

(“HAC”); and (3) that the murder was cold, calculated, and premeditated (“CCP”).

Hardwick I, 521 So. 2d at 1076–77. The State notes that these aggravators have

been characterized by the Florida Supreme Court as being among the most serious

aggravating circumstances. See, e.g., Brown v. State, 143 So. 3d 392, 405 (Fla.)

(per curiam), cert. denied, 135 S. Ct. 726, 190 L. Ed. 2d 453 (2014) (“This Court

has consistently recognized that CCP and HAC are two of the weightiest

aggravators in Florida’s statutory sentencing scheme.”); Hodges v. State, 55 So. 3d

515, 542 (Fla. 2010) (per curiam) (“Qualitatively, prior violent felony and HAC

are among the weightiest aggravators set out in the statutory sentencing scheme.”).

We do not quibble with the State’s characterization of Florida law, but

whether one aggravator is weightier than another in the abstract, does not resolve

whether here, on the facts of this case, with the mitigation and aggravation present

in these circumstances, there is a reasonable probability that the jury would have

reached a different balance. The District Court was convinced that had the jurors 36 Case: 97-2319 Date Filed: 09/18/2015 Page: 37 of 48

been presented with the weight of this strong and extensive mitigation evidence

hidden beneath the surface of this case, there is at least a reasonable probability

that they would have recommended a different sentence—and that the judge would

have heeded their recommendation. Having reviewed the District Court’s

conclusion de novo, we are similarly convinced.

The strength of our conclusion takes into account not only the affirmative

mitigating effect of that evidence, but also what might be termed the negative

mitigating effect of the evidence. The District Court found that the evidence

establishing the mitigating factors would also likely have lessened the weight the

jury would have assigned to each of the three aggravating factors. While we

disagree with the District Court on one or two points, we agree that the copious

and powerful mitigation evidence likely undermines at least two of the aggravating

factors.

As to the first aggravating circumstance, the District Court observed that one

of the three prior convictions relied on by the sentencing court—a North Carolina

conviction for assault with a deadly weapon—was actually classed as a

misdemeanor in North Carolina, and thus did not appear to qualify as a prior

violent felony. To the extent that Hardwick contends that the prior-violent-felony

aggravator can be entirely negated on this basis, we cannot agree. Even assuming

37 Case: 97-2319 Date Filed: 09/18/2015 Page: 38 of 48

that the North Carolina conviction is not eligible for the aggravator, 14 Hardwick’s

felony convictions for armed robbery and kidnapping remain. Either would

suffice to establish the prior-violent-felony aggravator.15

We think it relevant, however, that the criminal acts underlying these two

convictions occurred less than twenty-four hours after Pullum’s murder—which, as

14 Although Hardwick was convicted of misdemeanor assault with a deadly weapon under North Carolina law, the analogous offense was considered a third-degree felony under Florida law. Compare State v. O'Briant, 258 S.E.2d 839, 842 (N.C. Ct. App. 1979) (explaining that the misdemeanor offense of assault with a deadly weapon is a lesser included offense of the felony of assault with a deadly weapon with intent to kill (citing N.C.G.S. 14-33(b)(1)), with Fla. Stat. § 784.021 (defining the felony offense of aggravated assault as an assault with a deadly weapon without intent to kill).

It is clear that the North Carolina conviction could not now be considered for the purposes of the prior-violent-felony aggravator under Florida law. See Carpenter v. State, 785 So. 2d 1182, 1205 (Fla. 2001) (per curiam) (“[W]e determine that an out-of-state conviction related to an offense that has only similar but different elements and does not constitute a “felony” in that state does not amount to a felony in Florida as a matter of law for the purposes of establishing the prior violent felony aggravating circumstance under the present statute.”). The state of the law on this point at the time of Hardwick’s trial in 1986 is less clear, however. See id. at 1204 (noting that the question was “an issue of first impression”). The State points out that in 1985, the Florida Supreme Court had explained that “whether a previous conviction . . . constitutes a felony involving violence under [the statute listing aggravating circumstances], depends on the facts of the previous crime.” Johnson v. State, 465 So. 2d 499, 505 (Fla. 1985), overruled on other grounds by In re Instructions in Criminal Cases, 652 So. 2d 814 (Fla. 1995) (per curiam) (emphasis added). We express no opinion as to the resolution of this issue. 15 Even though the two offenses occurred later in time than the murder, the convictions were handed down prior to Hardwick’s murder trial. These two convictions could thus be counted for the purposes of the prior violent felony conviction aggravator. See Fla. Stat. § 921.141(5)(b) (“The defendant was previously convicted of . . . a felony involving the use or threat of violence to the person.”) (emphasis added); King v. State, 390 So. 2d 315, 320 (Fla. 1980) (per curiam) (“The legislative intent is clear that any violent crime for which there was a conviction at the time of sentencing should be considered as an aggravating circumstance.”), receded from on other grounds by Strickland v. State, 437 So. 2d 150 (Fla. 1983).

38 Case: 97-2319 Date Filed: 09/18/2015 Page: 39 of 48

we have just explained, was committed while Hardwick’s ability to conform his

conduct to the requirements of the law was substantially impaired due to his

substance abuse disorder and his contemporaneous, heavy drug and alcohol use for

four or five days constantly around the time of the murder. See supra, Part III.B.1.

Thus, we agree with the District Court that the weight of the prior violent felony

aggravator would likely have been diminished somewhat in the eyes of the jury

had they been made aware of the facts underlying Hardwick’s impairment.

As to the HAC and CCP aggravators, the District Court concluded that

“[b]oth relate to Hardwick’s mental state, and thus both are undermined by the

post-conviction mental health evidence.” We agree with respect to the CCP

aggravator; had the jury known about Hardwick’s longstanding mental health

issues and substantial drug- and alcohol-induced impairment at the time of the

murder, they may indeed have attributed less weight to the State’s assertion that

the murder was the result of heightened premeditation. See Gorham v. State, 454

So. 2d 556, 559 (Fla. 1984) (per curiam) (“[CCP] applies only to crimes which

exhibit a heightened premeditation, greater than that required to establish

premeditated murder.”). We disagree, however, with the District Court’s

conclusion that the weight of the HAC aggravator is directly linked to Hardwick’s

mental state. In 1984, the Florida Supreme Court explained that “heinous,

atrocious, or cruel pertains more to the nature of the killing and the surrounding 39 Case: 97-2319 Date Filed: 09/18/2015 Page: 40 of 48

circumstances while cold, calculated, and premeditated pertains more to state of

mind, intent, and motivation.” Stano v. State, 460 So. 2d 890, 893 (Fla. 1984); see

also Hardwick I, 521 So. 2d at 1077 (“The factor of heinous, atrocious and cruel

arises from the means actually employed in the killing; the factor of cold,

calculated and premeditated refers to the degree of calculation and planning that

preceded the killing.”). We do not find this error to be dispositive, however; we

are aware of no requirement that the weight of each aggravating circumstance be

appreciably lessened in order to move the needle on the scale.

In sum, the evidence counsel failed to investigate and introduce would have

had the dual effect of substantially strengthening the mitigation case and

appreciably weakening the aggravation case. “Had the judge and jury been able to

place [Hardwick’s] life history on the mitigating side of the scale, and

appropriately reduced the ballast on the aggravating side of the scale, there is

clearly a reasonable probability that the advisory jury—and the sentencing judge—

would have struck a different balance . . . .” See Porter, 558 U.S. at 42, 130 S. Ct.

at 454 (quotation marks omitted).

The State’s second argument regarding prejudice is that the District Court

erred by failing to afford sufficient weight to the negative aspects of the mitigation

evidence an effective attorney would have put on. The State argues that if 40 Case: 97-2319 Date Filed: 09/18/2015 Page: 41 of 48

Hardwick’s attorney had introduced evidence of Hardwick’s traumatic childhood,

history of substance abuse, and use of drugs and alcohol before the murder, the

prosecution would have exploited the countervailing aspects of that evidence, such

as the voluntary nature of Hardwick’s substance abuse and his diagnosis of

antisocial personality disorder. The State submits that had that happened, the net

effect would not have been mitigating, but aggravating.

We do not believe that the District Court erred in determining that the

potentially harmful aspects of the evidence of Hardwick’s personal history,

especially his deprived and abusive childhood and his substance abuse given its

early onset at age eleven or twelve in that childhood environment, were insufficient

to outweigh its beneficial effect. It is true that this court has frequently noted the

double-edged nature of evidence of drug and alcohol abuse. See, e.g., Suggs v.

McNeil, 609 F.3d 1218, 1231 (11th Cir. 2010) (citing cases). Indeed, this Court

has also said that an antisocial personality disorder is more harmful than

mitigating. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1248 (11th Cir.

2010). Here, however, the cornerstone of the State’s theory in both the guilt and

penalty phases of the trial was that Hardwick was a hardened drug dealer who

executed Pullum for stealing a large quantity of drugs from him. See Trial

Transcript 286–87 (State’s opening argument at guilt phase) (“[D]efendant

murdered Keith Pullum because . . . defendant thought that Keith Pullum had 41 Case: 97-2319 Date Filed: 09/18/2015 Page: 42 of 48

stolen his drugs, had stolen his Quaaludes, his valuable Quaaludes . . . .”); id. at

975 (State’s closing argument at penalty phase) (“[D]efendant was a drug dealer.

His business was dealing drugs. He killed Keith Pullum because he thought Keith

Pullum had stolen his drugs and had interfered in his business of selling drugs.

This defendant was a drug dealer.”). The jury was repeatedly reminded that

Hardwick and his associates were involved in drugs and that the murder was

ancillary to Hardwick’s drug business. See, e.g., Trial Transcript 863 (“Again,

remember, the defendant is a drug dealer . . . .”); id. at 864 (“I’m not saying

[Hardwick’s neighbor] Michael Hyzer is the type of person you want to live next

door to. He seemed to be a little rough. He was a convicted felon and he was

obviously involved in drugs. He bought the Quaaludes from the defendant.”); id.

at 851 (“[T]he only evidence of the defendant ever doing any work or anything that

ever made any money or might make money was what? He sold drugs. I would

submit to you that the defendant’s motive in this case went to his very livelihood;

the effect of those drugs.”).

Under these particular circumstances, evidence of Hardwick’s substance

abuse would not have come as a shock to the jurors, further prejudicing them

against him. Instead, presenting Hardwick’s lengthy history of substance

addiction, along with his deprived and physically abusive childhood, his alcoholic

father and neglectful mother who abandoned him, his family poverty and 42 Case: 97-2319 Date Filed: 09/18/2015 Page: 43 of 48

instability, his placement in a boys’ home at age seven and later in foster homes,

his early onset of alcohol and drug abuse at age eleven or twelve, his diagnosis of

schizophrenia, his suicide attempts, and the many aspects of his traumatic family

background that precipitated it, would have provided the jury with a more

complete understanding of how Hardwick ended up where he did. All they had

was a brief snapshot of the instant Hardwick’s life hit rock bottom; absent was the

decades-long slide of childhood neglect, abandonment, abuse, instability, mental

and emotional problems, intoxication, and addiction that led up to that moment.

Further, while we acknowledge that disclosure of Hardwick’s diagnosis of

antisocial personality disorder to the jury would not have helped his case, we

cannot say that this factor, standing alone, would have nullified the cumulative

mitigating effect of all of the unintroduced, but powerful, mitigation evidence

about Hardwick’s dysfunctional and abusive childhood. The District Court did not

err in deciding that this diagnosis “was not justification for [counsel’s] failure to

present mitigating evidence through a mental health expert.”

c.

Finally, the State contends that counsel’s recollection that Hardwick

instructed him not to call any mitigation witnesses in the penalty phase precludes a

finding of prejudice. In support of this proposition, the State relies on Schriro v.

Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). In that case, 43 Case: 97-2319 Date Filed: 09/18/2015 Page: 44 of 48

Landrigan explicitly and repeatedly informed the trial court at sentencing that he

did not wish to put on any mitigating evidence—even going so far as to interrupt

his counsel’s attempt to proffer evidence to which the mitigating witnesses would

have testified. Id. at 469–70, 127 S. Ct. at 1937–38. Landrigan made this decision

even though his attorney “had carefully explained to Landrigan the importance of

mitigating evidence,” and explicitly told him that “as counsel, he had a duty to

disclose any and all mitigating factors to the court for consideration regarding the

sentencing.” Id. at 479, 127 S. Ct. at 1943 (alterations and quotation marks

omitted).

The Supreme Court, applying AEDPA, held that the state court’s factual

finding “that Landrigan refused to allow the presentation of any mitigating

evidence was a reasonable determination of the facts.” Id. at 477, 127 S. Ct. at

1941 (emphasis added). Accordingly, the Court held that the Ninth Circuit erred in

concluding that the District Court abused its discretion in deferring to the state

court’s determination that Landrigan could not demonstrate prejudice under

Strickland. Id. at 477, 127 S. Ct. at 1942.

As Hardwick correctly points out, Schriro’s reasoning does not apply here.

Contrary to the facts in Schriro, the unambiguous conclusion of the District

Court—the relevant factfinder here, see supra, Part II—is that had counsel

“investigated the many red flags” in Hardwick’s case, presented this potentially 44 Case: 97-2319 Date Filed: 09/18/2015 Page: 45 of 48

mitigating evidence to Hardwick, and explained that this evidence could be used to

make a compelling case for life, Hardwick “would have permitted [counsel] to

introduce some mitigation evidence.” On the record before us, we cannot say that

this factual finding is clearly erroneous. Moreover, as the District Court also

found, Hardwick’s actions, including his continued efforts to seek a life sentence,

further support this finding.

“The purpose of a sentencing hearing is to provide the jury with the

information necessary for it to render an individualized sentencing determination

based upon the character and record of the individualized offender and the

circumstances of the particular offense.” Collier, 177 F.3d at 1203 (alterations

omitted) (quoting Dobbs v. Turpin, 142 F.3d 1383, 1386–87 (11th Cir. 1998)).

Here, “counsel’s absolute failure to investigate, obtain, or present any evidence, let

alone the powerful, concrete, and specific mitigating evidence that was available,

prevented the jurors from hearing anything at all about the defendant before them.

An individualized sentence, as required by the law, was therefore impossible.”

Brownlee, 306 F.3d at 1074.

Because of counsel’s deficient performance, the jury saw only a drug dealer

who brutally killed someone for stealing his quaaludes. They did not hear a word

about Hardwick’s traumatic childhood background that was consistently marked 45 Case: 97-2319 Date Filed: 09/18/2015 Page: 46 of 48

by neglect, deprivation, abandonment, violence, and physical and sexual abuse.

They never had a chance to examine the trove of documents evidencing his

decade-and-a-half long history of drug and alcohol addiction starting at the young

age of eleven or twelve. They heard none of the affirmative evidence of his heavy

intoxication at the time of the crime. Nor did they hear expert testimony about

how these factors combined to render Hardwick substantially unable to conform

his conduct to the requirements of the law, as the postconviction mental health

experts unanimously concluded.

Yet even without this evidence, the jury still came within a single vote of

recommending life. 16 See Wiggins, 539 U.S. at 537, 123 S. Ct. 2543 (“Had the

jury been able to place petitioner’s excruciating life history on the mitigating side

of the scale, there is a reasonable probability that at least one juror would have

struck a different balance.”); Cave v. Singletary, 971 F.2d 1513, 1519 (11th Cir.

1992) (noting in its discussion of prejudice that “despite the presentation of no

mitigating circumstances, Cave came within one vote of being spared execution.”);

cf. Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991) (“Given that [four

16 “In Florida, a vote of six jurors for life constitutes a recommendation against the death penalty.” Cave v. Singletary, 971 F.2d 1513, 1519 (11th Cir. 1992). Given the jury’s seven-to- five vote here, if only one additional juror had been persuaded to vote for a life sentence, the jury’s advisory sentence would have been interpreted as a recommendation of life imprisonment, rather than the death penalty.

46 Case: 97-2319 Date Filed: 09/18/2015 Page: 47 of 48

out of the twelve] members of Blanco’s jury were inclined to mercy even without

having been presented with any mitigating evidence and that a great deal of

mitigating evidence was available to Blanco’s attorneys had they more thoroughly

investigated, we find that there was a reasonable probability that Blanco’s jury

might have recommended a life sentence absent the errors.”). The Supreme Court

has “explained that there is no prejudice when the new mitigating evidence would

barely have altered the sentencing profile presented to the decisionmaker.” Sears

v. Upton, 561 U.S. 945, 954, 130 S. Ct. 3259, 3266 (2010) (quotation marks

omitted). But that is not the case here where absolutely none of the powerful

mitigation story about Hardwick’s childhood was told.

As was the case in Collier, we believe that counsel’s ineffectiveness

precipitated a breakdown in the adversarial process. The jury was called upon to determine whether a man whom they did not know would live or die; they were not presented with the particularized circumstances of his past and of his actions on the day[s] [surrounding] . . . the crime that would have allowed them fairly to balance the seriousness of his transgressions with the conditions of his life. Had they been able to do so, we believe that it is at least reasonably probable that the jury would have returned a sentence other than death. 177 F.3d at 1204 (quotation marks omitted).

IV.

Having found both deficient performance and prejudice under Strickland, we

hold that John Gary Hardwick, Jr. did not receive effective assistance of counsel

47 Case: 97-2319 Date Filed: 09/18/2015 Page: 48 of 48

during the penalty phase of his trial, in violation of the Sixth and Fourteenth

Amendments of the Constitution. We therefore AFFIRM the District Court’s

determination that Hardwick is entitled to habeas relief as to the penalty phase of

his trial and REMAND with instructions that the District Court issue a writ of

habeas corpus vacating Hardwick’s sentence of death. The State must either grant

Hardwick a new sentencing proceeding within 180 days or resentence him to life

imprisonment.

SO ORDERED.