Case: 18-11421 Date Filed: 10/25/2019 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11421 ________________________
D.C. Docket No. 8:17-cv-00985-VMC-TGW
MICHAEL L. KING,
Petitioner - Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 25, 2019)
Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
MARTIN, Circuit Judge: Case: 18-11421 Date Filed: 10/25/2019 Page: 2 of 16
Michael King, a Florida death row inmate, appeals the District Court’s
denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. King has
raised three issues in this appeal: (1) whether trial counsel rendered ineffective
assistance of counsel for failing to preserve a challenge to a peremptory strike
under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) and J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419 (1994); (2) whether trial
counsel rendered ineffective assistance of counsel for failing to investigate Mr.
King’s exposure to toxic substances; and (3) whether the District Court violated
due process or otherwise abused its discretion by adopting portions of the State’s
response brief in its order denying Mr. King’s § 2254 petition. After careful
consideration, and with the benefit of oral argument, we affirm the denial of Mr.
King’s habeas petition.
I. BACKGROUND AND PROCEDURAL HISTORY
Mr. King was convicted and sentenced to death in 2009 for the murder,
kidnapping, and involuntary sexual battery of Denise Amber Lee. See King v.
State (“King I”), 89 So. 3d 209, 219 (Fla. 2012). Mr. King’s crimes against Mrs.
Lee were nightmarish. The horrific nature of his crimes is not disputed, so we will
not elaborate on them here. Rather, in this appeal we address whether the
performance of Mr. King’s trial counsel was deficient and whether the District
2 Case: 18-11421 Date Filed: 10/25/2019 Page: 3 of 16
Court erred when it incorporated portions of the State’s response brief into its
order.
A. RELEVANT TRIAL PROCEEDINGS
At his trial, Mr. King was represented by Carolyn Schlemmer, John Scotese,
and Jerome Mesiner. See King v. State (“King II”), 211 So. 3d 866, 879 (Fla.
2017). Ms. Schlemmer had been working on death penalty cases “for the better
part of 20 years” at the time she came to represent Mr. King. Mr. Scotese had
handled one capital case and therefore met the qualifications to handle capital
cases on his own, while Mr. Mesiner did not. See id. at 884.
During voir dire, the State moved to use a peremptory challenge of Juror
111, an African American woman. Mr. Scotese objected and asked for a “race
neutral” justification for the strike. The State responded with:
On Juror Number 111, she’s an 18-year-old female. She came across as meek, young and inexperienced. She’s the youngest on the panel we have existing so far. Her statement during the original death qualification was that living life in prison is more awful than a death sentence. Her brother has a pending felony drug charge. She watches the television show CSI. Commonly, a concern of ours is that they would hold us to a TV standard as opposed to a regular standard. And based on these foregoing reasons, we exercise our peremptory challenge on Number 111.
In response, the trial court stated that other jurors on the panel “watch CSI or
watch Perry Mason or whatever.” The State then asserted that “[our] race neutral
reason, this is not a challenge for cause, she indicated that living a life in prison is
3 Case: 18-11421 Date Filed: 10/25/2019 Page: 4 of 16
more awful than a death sentence.” The trial court explained that “[o]ther jurors
have said the same thing.” In response, the State said it would “strike [the] other
jurors . . . remaining on the panel that have said” life without parole is worse than
the death sentence.
The trial court then repeated that Juror 111’s brother “has a pending . . .
criminal charge” and the State confirmed this was true. Thus, the trial court found
that Juror 111’s brother’s pending drug charge was “a genuine race neutral reason”
for removing Juror 111 from the jury, and overruled Mr. Scotese’s objection to the
State’s peremptory challenge.
Also relevant to this appeal is the penalty-phase evidence of Mr. King’s
mental health. Mr. King offered the testimony of Dr. Joseph Chong Sang Wu, who
conducted a PET scan and concluded that Mr. King had a traumatic brain injury.
King II, 211 So. 3d at 876. Dr. Wu testified that people who suffer frontal lobe
injuries are more likely to have poor judgment, exhibit blunted affect, take
excessive risks, have difficulty regulating impulses such as aggression, and have
difficulty separating fantasy from reality. Id. at 876–77. According to Dr. Wu,
Mr. King’s “most recent verbal IQ score placed him in the borderline retarded
range.” Id. at 877. Mr. King also presented the testimony of Dr. Kenneth Visser,
who performed an IQ test on Mr. King. That testing of Mr. King produced a
verbal IQ score of 71, a performance IQ score of 85, and a full-scale IQ of 76. Id.
4 Case: 18-11421 Date Filed: 10/25/2019 Page: 5 of 16
Dr. Visser testified that this placed King in the borderline intellectual functioning
range. Id.
Ultimately, the jury unanimously recommended a sentence of death. King
II, 211 So. 3d at 878. The trial court found the existence of two statutory
mitigating circumstances: (1) Mr. King’s capacity to appreciate the criminality of
his conduct or conform his conduct to the requirements of the law was
substantially impaired (moderate weight), and (2) his age, thirty-six (little weight).
Id. The trial court further found that Mr. King had established thirteen
nonstatutory mitigating circumstances. See id. at 878–79. Nonetheless, the trial
court found that the State proved four aggravating circumstances beyond a
reasonable doubt and sentenced Mr. King to death. Id. at 878.
B. DIRECT APPEAL
On direct appeal, the Florida Supreme Court affirmed Mr. King’s
convictions and death sentence. King I, 89 So. 3d at 212. The United States
Supreme Court denied his petition for writ of certiorari on October 15, 2012. King
v. Florida, 568 U.S. 964, 133 S. Ct. 478 (2012).
C. STATE COLLATERAL PROCEEDINGS
In September 2013, Mr. King filed a motion for postconviction relief in the
trial court under Florida Rule of Criminal Procedure 3.851. In his Rule 3.851
motion, Mr. King argued, among other things, that his trial counsel was ineffective
5 Case: 18-11421 Date Filed: 10/25/2019 Page: 6 of 16
for failing to investigate and present evidence regarding his exposure to toxic
substances and for failing to properly preserve a Batson/J.E.B. challenge for direct
appeal. After conducting an evidentiary hearing, the state postconviction court
issued a written order denying relief in August 2014. The Florida Supreme Court
affirmed the denial of relief in January 2017, King II, 211 So. 3d at 870–71, and
denied his motion for rehearing on March 13, 2017.
D. FEDERAL HABEAS PROCEEDINGS
Mr. King filed his § 2254 petition in the District Court on April 27, 2017.
He sought relief on six grounds. For our purposes, Mr. King raised both of his
ineffective assistance of counsel claims and asserted that the Florida Supreme
Court’s resolution of those claims was contrary to Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052 (1984). In particular, Mr. King argued that his trial
counsel was ineffective for failing to investigate the effects of the toxins Mr. King
was exposed to during his childhood and in his job as a plumber. He also raised
the Batson/J.E.B. issue again.
The District Court denied habeas relief and held that the Florida state courts
reasonably applied Strickland in ruling that Mr. King failed to establish that his
trial counsel’s failure to investigate his exposure to toxic substances was deficient.
The District Court found that trial counsel consulted several experts to ascertain
whether Mr. King suffered any neurological disorders. Further, one of these
6 Case: 18-11421 Date Filed: 10/25/2019 Page: 7 of 16
experts discussed Mr. King’s exposure to toxins from rat poisoning and crack pipe
fumes, but, at the time of trial, neither Mr. King, his family, the investigator, nor
the medical experts alerted Mr. King’s trial counsel to the possible exposure of
toxic chemicals from growing up near farms or from his plumbing career. As a
result, the District Court held that Mr. King’s trial counsel had no reasonable basis
for further toxin exposure investigation, so was not ineffective. The District Court
also ruled Mr. King’s trial counsel was not ineffective for failing to preserve the
Batson/J.E.B. challenge for direct appeal because there was evidence that Mr.
King’s trial counsel did not want Juror 111—the juror at issue—on the jury.
II. STANDARD OF REVIEW
A. HABEAS STANDARDS
Under § 2254, a prisoner held “in custody pursuant to the judgment of a
State court” may seek habeas relief “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States. 28 U.S.C.
§ 2254(a). Generally, a prisoner must first “fairly present” his federal claims to the
state court and exhaust his state court remedies before seeking federal habeas
relief. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (alteration
adopted and quotation marks omitted). When a state court has adjudicated a
prisoner’s claims on the merits, this Court’s review is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, this
7 Case: 18-11421 Date Filed: 10/25/2019 Page: 8 of 16
Court may not grant habeas relief with respect to such a claim unless the state
court’s adjudication:
(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). The AEDPA standard is “highly deferential” and “demands
that state-court decisions be given the benefit of the doubt.” Evans v. Sec’y, Dep’t
of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013) (en banc) (quotation marks
omitted). A decision “is not ‘contrary to’ federal law unless it contradicts the
United States Supreme Court on a settled question of law or holds differently than
did that Court on a set of materially indistinguishable facts.” Id. (quotation marks
omitted). A state court’s decision is not “an unreasonable application of federal
law unless the state court identifies the correct governing legal principle as
articulated by the United States Supreme Court, but unreasonably applies that
principle to the facts of the petitioner’s case, unreasonably extends the principle to
a new context where it should not apply, or unreasonably refuses to extend it to a
new context where it should apply.” Id. (citation omitted). When assessing a
§ 2254 petition under AEDPA, we do not ask whether the state court decision is
correct, but rather whether it is reasonable. Id.
8 Case: 18-11421 Date Filed: 10/25/2019 Page: 9 of 16
A district court’s denial of a habeas corpus petition is reviewed de novo.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). “It is the petitioner’s burden
to establish his right to habeas relief[,] and he must prove all facts necessary to
show a constitutional violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th
Cir. 2008) (citation omitted). The state court’s factual determinations are entitled
to a presumption of correctness, and Mr. King bears the burden of rebutting that
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS UNDER AEDPA
To establish a case of ineffective assistance of counsel, a petitioner must
show that (1) his counsel’s performance was deficient and (2) his defense was
prejudiced by the deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. There is a strong presumption that counsel’s performance “falls within the
wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065.
Trial counsel’s performance will not be considered deficient unless counsel’s
representation fell below an objective standard of reasonableness or was “outside
the wide range of professional competent assistance.” Id. To demonstrate
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694, 104 S. Ct. at 2068. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. If a petitioner 9 Case: 18-11421 Date Filed: 10/25/2019 Page: 10 of 16
fails to make a sufficient showing on either prong of the inquiry, his ineffective
assistance of counsel claim fails. Id. at 687, 104 S. Ct. at 2064.
AEDPA adds another layer of deference to the Strickland analysis. See, e.g.,
Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010). To prevail on either of his
ineffective assistance of counsel claims, Mr. King must therefore establish that
(1) he has satisfied the elements of the Strickland standard and (2) that the State
court applied Strickland in a manner that was contrary to, or involved an
unreasonable application of clearly established Supreme Court precedent, or that
the State court applied Strickland to facts it unreasonably determined. See id.
III. DISCUSSION
A. INEFFECTIVE ASSISTANCE – BATSON/J.E.B. CLAIM
We begin with Mr. King’s ineffective assistance of counsel claim regarding
the State’s peremptory strike of Juror 111. He first argues that the Florida
Supreme Court’s determination that Ms. Schlemmer strategically chose to forgo a
challenge to Juror 111 was an unreasonable determination of the facts under our
decision in Davis v. Sec’y for Dept. of Corr., 341 F.3d 1310 (11th Cir. 2003). 1 He
1 Mr. King also asserts that the Florida Supreme Court “was not able to complete an adequate review of the Batson claim on direct appeal” because he claims his trial counsel was otherwise deficient in (1) failing to identify the race of similarly situated jurors; (2) failing to correct the trial court and the prosecutor’s misunderstanding of Juror 111’s questionnaire; (3) failing to conduct a comparative juror analysis; and (4) failing to raise a J.E.B. challenge to the State’s peremptory strike of Juror 111. We decline to address these arguments because our resolution of Mr. King’s Batson claim renders them moot. In particular, as we explain below, we conclude that we must affirm the District Court’s determination of Mr. King’s Batson claim 10 Case: 18-11421 Date Filed: 10/25/2019 Page: 11 of 16
points out that after the State sought to use a peremptory strike on Juror 111, Ms.
Schlemmer stated that “we just have an issue” and Mr. Scotese raised the
objection. Mr. King says this record shows that Ms. Schlemmer sought to object to
the State removing Juror 111 from the jury. Mr. King also maintains that Ms.
Schlemmer inappropriately offered post hoc rationalizations for her decision under
Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003). Under the governing
standards, these arguments fail.
Mr. King has not shown that the Florida Supreme Court’s assessment of trial
counsel’s performance is contrary to or an unreasonable application of clearly
established federal law, or an unreasonable determination of the facts. On this
record, the Florida Supreme Court’s determination that Mr. King’s trial counsel
made a tactical decision to allow the State to strike Juror 111 was not
unreasonable. The Florida Supreme Court noted Ms. Schlemmer’s testimony that
although she did not have a specific recollection of the jury selection, based on the
large “NO” written next to notes about Juror 111 she did not want Juror 111 on the
panel. Based on this, she implied that further pressing of a Batson challenge was
unnecessary. Further, even if Ms. Schlemmer was not the person who wrote “NO”
next to the entry for Juror 111, Ms. Schlemmer was lead counsel during jury
because the State court’s determination that trial counsel’s decision not to press the Batson claim was a permissible strategic one, was not contrary to or an unreasonable application of clearly established federal law, and it was not based on an unreasonable determination of the facts. 11 Case: 18-11421 Date Filed: 10/25/2019 Page: 12 of 16
selection and oversaw the objections raised by others on her team. Thus the
Florida Supreme Court reasonably determined that, as a matter of trial strategy,
Mr. King’s trial counsel made a decision to allow the State to strike Juror 111. In
other words, the Florida Supreme Court did not apply the facts in an objectively
unreasonable manner when it rejected Mr. King’s Batson/J.E.B. claim. 28 U.S.C.
§ 2254(d). And it did not unreasonably apply Strickland when it denied Mr.
King’s claim because under Strickland, an attorney does not perform
incompetently when, as here, she makes a strategic decision that other competent
attorneys might have made.
We need not address the merits of Mr. King’s prejudice argument because
he failed to make a showing of deficient performance. See Osley v. United States,
751 F.3d 1214, 1222 (11th Cir. 2014) (noting “a court need not address both
prongs if the defendant has made an insufficient showing on one”).
B. INEFFECTIVE ASSISTANCE – TOXIN EXPOSURE EVIDENCE
Mr. King next argues his trial counsel was ineffective during the penalty
phase of his trial because she failed to investigate and present evidence showing
Mr. King was exposed to harmful toxins throughout his life. Mr. King says that,
had his trial counsel investigated and presented evidence of his exposure to toxic
substances, that evidence would have explained Mr. King’s behavior and provided
an additional explanation of his low IQ and brain injury. In particular, Mr. King
12 Case: 18-11421 Date Filed: 10/25/2019 Page: 13 of 16
claims “the deficient performance in this case stems not from the complete lack of
investigation or consultation with experts, but rather from a lack of consultation
with an expert specifically tailored to the needs of Mr. King’s case.”
As set out above, the Florida Supreme Court noted that trial counsel
consulted several experts to ascertain whether Mr. King suffered any neurological
disorders. The Court noted further that, at the time of trial, neither Mr. King, his
family, the investigator, nor the medical experts alerted Mr. King’s trial counsel to
his possible exposure of toxic chemicals from growing up near farms or in the
course of his plumbing career. King II, 211 So. 3d at 882–83. The record supports
this assessment by the Florida Supreme Court. Ms. Schlemmer testified she
consulted with seven psychologists, one of whom reported no neurotoxic exposure.
And, during her investigation, Mr. King reported only exposure to the possible
toxic substance of “crack pipe fumes,” “marijuana,” and “rat poison.” The Florida
Supreme Court reasonably summarized trial counsel’s investigation and noted that
“[t]hrough her persistence, [Ms.] Schlemmer was able to present some mitigating
mental health evidence via the testimony of Dr. Wu.” King II, 211 So. 3d at 882.
Given these facts, and viewing counsel’s performance through the lens of AEDPA
deference, we conclude that the scope of trial counsel’s investigation was
reasonable. See Strickland, 466 U.S. at 699, 104 S. Ct. at 2070 (holding that
“counsel made a strategic choice to argue for the extreme emotional distress
13 Case: 18-11421 Date Filed: 10/25/2019 Page: 14 of 16
mitigating circumstance” and that “strategy choice was well within the range of
professionally reasonable judgments”); Williams v. Allen, 598 F.3d 778, 793–94
(11th Cir. 2010) (holding counsel’s presentation of voluntary intoxication evidence
was not deficient and, by failing to “demonstrate[] that counsel needed to argue
further,” petitioner could not show counsel’s strategy was unreasonable); see also
Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir. 2008) (“In evaluating the
reasonableness of a defense attorney’s investigation, we weigh heavily the
information provided by the defendant.”).
C. DUE PROCESS CLAIM
Finally, Mr. King argues that the District Court violated his due process
rights and abused its discretion by incorporating portions of the State’s response
brief into its order denying Mr. King’s § 2254 petition. This argument fails as
well, however, because a court’s adoption of portions of a party’s brief does not
render its decision fundamentally unfair.
We caution district courts against this practice. However, the findings
contained in the District Court’s order, “though not the product of the workings of
the district judge’s mind, are formally [hers]; they are not to be rejected out-of-
hand, and they will stand if supported by evidence.” United States v. El Paso
Natural Gas, 376 U.S. 651, 656, 84 S. Ct. 1044, 1047 (1964). There is no evidence
here “that the process by which the [District Court] arrived at [the decision] was
14 Case: 18-11421 Date Filed: 10/25/2019 Page: 15 of 16
fundamentally unfair.” See In re Colony Square Co., 819 F.2d 272, 276 (11th Cir.
1987) (holding that orders drafted by a litigant without notice to the opposing party
are not automatically invalid). This is not a case in which the District Court issued
a “one-sentence summary denial[],” depriving us the opportunity to conduct
meaningful appellate review. Danley v. Allen, 480 F.3d 1090, 1091 (11th Cir.
2007) (holding district court orders “should contain sufficient explanations of their
rulings”). On the contrary, the District Court set forth its reasons for denying each
of Mr. King’s six claims in a 91-page order. We do not view the District Court’s
actions as depriving Mr. King of his right “to an impartial and disinterested
tribunal.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 1613
(1980); see also Williams v. Pa., ___ U.S. ___, 136 S. Ct. 1899, 1909 (2016)
(“Both the appearance and reality of impartial justice are necessary to the public
legitimacy of judicial pronouncements.”). Because the District Court’s adoption of
portions of the State’s brief in its opinion did not deprive Mr. King of a fair and
impartial tribunal, we must deny Mr. King’s claim.
IV. CONCLUSION
The Florida Supreme Court’s assessment of Mr. King’s trial counsel’s
performance was not contrary to or an unreasonable application of federal law.
Mr. King cannot, therefore, prevail on either of his ineffective assistance of
counsel claims. Also, although we do not endorse district courts indiscriminately
15 Case: 18-11421 Date Filed: 10/25/2019 Page: 16 of 16
incorporating a party’s brief into their orders, there is no prohibition on the District
Court from including in its order portions of a party’s brief that are supported by
the evidence.
AFFIRMED.