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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 15-10982 & 15-12077 ________________________
D.C. Docket No. 6:08-cv-00732-ACC-KRS
ROBERT IRA PEEDE,
Petitioner-Appellee,
versus
ATTORNEY GENERAL, STATE OF FLORIDA, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondents-Appellants.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 8, 2017)
Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Robert Peede is under sentence of death in Florida following a first-degree
murder conviction for killing his wife Darla Peede. The district court partially Case: 15-10982 Date Filed: 11/08/2017 Page: 2 of 46
granted Mr. Peede’s petition for writ of habeas corpus, see 28 U.S.C. § 2254,
concluding that defense counsel was ineffective for failing to investigate and
present certain background information about Mr. Peede at the penalty phase. The
state appeals that ruling. Following a review of the record, and with the benefit of
oral argument, we conclude that the state courts’ resolution of the Strickland
prejudice prong was not unreasonable, and therefore reverse the district court’s
grant of habeas relief.
I
The Florida Supreme Court summarized the circumstances related to Darla
Peede’s murder as follows:
The evidence at trial established that Peede returned to Miami to convince Darla [Peede’s estranged wife] to go to North Carolina and serve as a decoy in an alleged scheme Peede had to kill his ex- wife [Geraldine Peede] and her boyfriend. Peede telephoned Darla and she agreed to pick him up at the airport. However, instead of returning to Darla’s home as intended, they mistakenly got on the Florida Turnpike heading for Orlando. As they left the Miami area, Peede pulled a lock-blade knife and inflicted a superficial cut in Darla’s side. Subsequently, outside of Orlando, Peede stopped the car, jumped into the back seat, and stabbed Darla in the throat. As a result of this injury, Darla bled to death. Peede was arrested in North Carolina before carrying out his scheme to murder his ex-wife, and he confessed to Darla’s murder.
After his trial and conviction, a jury recommended the death penalty. The trial judge followed the jury’s recommendation and sentenced Peede to death, finding three aggravating factors and one mitigating circumstance. The trial court found in mitigation that Peede was under the influence of extreme mental or emotional disturbance, but attributed little weight to this finding. On appeal, this Court
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affirmed Peede’s conviction and, although we found that the murder was not cold, calculated and premeditated (CCP), we nevertheless upheld the death penalty.
Peede v. State, 748 So. 2d 253, 254 (Fla. 1999).1
In sentencing Mr. Peede to death, the state trial court found two statutory
aggravating factors: (1) Mr. Peede previously was convicted in California of
second-degree murder and assault with a deadly weapon; and (2) he murdered his
wife Darla Peede during the commission of a kidnapping.2 The trial court also
found, as a statutory mitigating factor, that Mr. Peede was under the influence of
extreme mental or emotional disturbance when he murdered his wife. But, it
concluded it was only a “marginal mitigating circumstance” which was
“outweighed by the single aggravating circumstance, standing alone, of
Defendant’s prior [California] crime of Murder in the Second Degree and Assault
with a Deadly Weapon.” Sentencing Order, D.E. 19 at 1265.
The Florida Supreme Court upheld Mr. Peede’s conviction and death
sentence on direct appeal. See Peede v. State, 474 So. 2d 808, 818 (Fla. 1985)
(ruling that the “one marginal mitigating circumstance that [the trial court] found
1 For clarity, we point out that Mr. Peede married his first wife, with whom he had one child, at age 16. Peede v. State, 995 So. 2d 480, 490 (Fla. 2007). After his first wife left him a year later, Mr. Peede married Geraldine Peede and had two children with her. Id. The victim, Darla Peede, was his third wife and estranged from him at the time of the murder. Id. at 486. 2 The trial court also found that Mr. Peede murdered his wife in a cold, calculated, and premediated manner, but the Florida Supreme Court overturned that finding on direct appeal. See Peede, 474 So. 2d at 817.
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was outweighed by the single aggravating circumstance standing alone of the
defendant’s previous convictions of two felony crimes involving the use or threat
of violence to some other person”).
After exhausting direct review of his conviction and sentence, Mr. Peede
moved for post-conviction relief in state court. The state trial court ultimately
denied his post-conviction motion after an evidentiary hearing, and the Florida
Supreme Court affirmed. See Peede v. State, 955 So. 2d 480, 486 (Fla. 2007).
Mr. Peede then filed a petition for writ of habeas corpus in federal court. He
alleged, among other things, that his counsel was ineffective at the penalty phase.
Mr. Peede argued that his counsel unconstitutionally failed to present mitigation
evidence (1) concerning his mental health, and (2) which showed he had a difficult
background and upbringing. The district court agreed with Mr. Peede, vacated the
death sentence, and ordered a new sentencing hearing. It concluded there was a
reasonable probability that Mr. Peede would have received a different sentence had
counsel presented the mitigating evidence:
The total mitigation evidence after the evidentiary hearing included that Petitioner suffered from childhood illnesses, his parents were alcoholics, his mental health began to deteriorate after his mother’s suicide, he suffered from Paranoid Personality Disorder and Delusional Disorder, he had a family history of mental illness, and he was behaving bizarrely prior to, and after, the California murder.
Had the aforementioned additional mitigation evidence been presented, a reasonable probability exists that the jury would have determined that the prior violent felony aggravator (California
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convictions) was mitigated, and thus warranted less weight. When considered with the remaining aggravator, that the murder occurred during the commission of a kidnapping, the aggravators were balanced or outweighed by the total mitigation evidence.
Order, February 27, 2015, D.E. 34 at 50–51 (ellipsis omitted).
This appeal followed.
II
We review the grant or denial of a petition for a writ of habeas corpus de
novo. See Owens v. McLaughlin, 733 F.3d 320, 324 (11th Cir. 2013). But our
review is not plenary.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996), governs Mr. Peede’s habeas petition. His
ineffectiveness claim was adjudicated on the merits by the Florida Supreme Court,
so Mr. Peede may obtain relief only if that adjudication was “contrary to, or
involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court,” or 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)(1)–(2).
A state court decision is “contrary to” clearly established federal law when
the state court “(1) applied a rule in contradiction to governing Supreme Court case
law; or (2) arrived at a result divergent from Supreme Court precedent despite
materially indistinguishable facts.” Dill v. Allen, 488 F.3d 1344, 1353 (11th Cir.
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2007). “A state court’s application of clearly established law is unreasonable only
if no ‘fairminded jurist’ could agree with the state court’s determination or
conclusion.” Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th
Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).
Under § 2254(d)(2), a federal habeas court must accord the state court’s
factual determinations “substantial deference.” Brumfield v. Cain, 135 S. Ct. 2269,
2277 (2015). It presumes that such findings are correct unless the petitioner rebuts
that presumption by “clear and convincing evidence,” Parker v. Head, 244 F.3d
831, 836 (11th Cir. 2001) (quoting § 2254(e)(1)). “If reasonable minds reviewing
the record might disagree about the finding in question, on habeas review that does
not suffice to supersede the trial court’s . . . determination.” Brumfield, 135 S. Ct.
at 2277 (internal quotation marks omitted).
Mr. Peede’s ineffective assistance of counsel claim requires proof that
(1) counsel’s performance was constitutionally deficient, and (2) that such
deficient performance resulted in prejudice. See Strickland v. Washington, 466
U.S. 668, 687 (1984). We may assume without deciding, as we do here, that
counsel’s performance was deficient, then move directly to whether the
performance prejudiced Mr. Peede. See, e.g., Castillo v. Sec’y, Fla. Dep’t of
Corrs., 722 F.3d 1281, 1283–84 (11th Cir. 2013) (noting we may make
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“simplifying assumptions in favor of the petitioner” to facilitate our analysis,
including assuming deficient performance).
To demonstrate prejudice, Mr. Peede must show that, “but for his counsel’s
deficiency, there is a reasonable probability he would have received a different
sentence.” Porter v. McCollum, 558 U.S. 30, 41 (2009). A “reasonable
probability” is one “sufficient to undermine confidence in [the sentence].”
Strickland, 466 U.S. at 694. “To assess that probability, [we] consider the totality
of the available mitigation evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding—and reweigh it against the evidence in
aggravation.” Porter, 558 U.S. at 41 (internal quotation marks and brackets
omitted).
As noted, the Florida Supreme Court denied Mr. Peede’s ineffectiveness
claim on the merits. As a result, Mr. Peede can obtain relief only by satisfying the
difficult § 2254(d) standard. See Kokal v. Sec’y, Fla. Dep’t of Corrs., 623 F.3d
1331, 1345–46 (11th Cir. 2010) (reviewing, with AEDPA deference, the highest
state-court decision that decided petitioner’s claim on the merits).
III
We conclude that, even if Mr. Peede’s counsel was deficient during the
penalty phase, the Florida Supreme Court’s ruling with respect to prejudice was
not unreasonable. On this record, the district court should have deferred to the
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Florida Supreme Court’s conclusion that the new post-conviction mitigation
evidence (including the mental health evidence) did not undermine confidence in
Mr. Peede’s sentence. The district court also should have deferred to the Florida
Supreme Court’s view that the new evidence concerning Mr. Peede’s background
and upbringing was a double-edged sword that likewise failed to undermine the
sentence. The district court’s grant of habeas relief was therefore error.
A
The district court ruled that Mr. Peede’s new mental health evidence
mitigated his prior California convictions for second-degree murder and assault
with a deadly weapon. In our view, the district court failed to defer to the Florida
Supreme Court’s reasonable conclusion to the contrary.
We begin by summarizing the California convictions. In California,
Mr. Peede shot two strangers outside a bar, killing one and hospitalizing the other
for several weeks. An eyewitness to the incident saw two men outside in a bar
fight; one man hit the other with a pool stick, knocking him to the ground, then ran
away. Shortly after someone came to the aid of the man on the ground, a van
(driven by Mr. Peede) drove around the corner, slowed to almost a complete stop,
and the driver (Mr. Peede) shot six times at the two men. Mr. Peede shot one
victim in the head and torso, killing him, and shot the other victim in the shoulder.
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Mr. Peede was convicted of second-degree murder for the death of the first man,
and assault with a deadly weapon for the shooting of the second man.
At sentencing, the Florida trial court credited the opinion of defense expert
Dr. Robert Kirkland, who explained that Mr. Peede was eligible for the statutory
mitigator of being under the influence of extreme mental or emotional disturbance
when he murdered Darla Peede. Dr. Kirkland, a well-respected forensic
psychiatrist in Florida at the time of Mr. Peede’s trial, interviewed Mr. Peede twice
before testifying during the penalty phase of Mr. Peede’s trial. During these two
sessions, Dr. Kirkland and Mr. Peede discussed Mr. Peede’s background, personal
history regarding his health, his life and lifestyle, his marriages, his successes and
his failures, and his previous problems with Geraldine and Darla Peede. Based on
these discussions, Dr. Kirkland concluded that Peede suffered from paranoia and
delusions, specifically regarding suspected infidelity by Geraldine and Darla Peede
and a belief that they had posed nude and advertised for sex in a “swingers”
magazine. Dr. Kirkland testified that Mr. Peede’s paranoia “played a large part in
Darla’s death,” and that Mr. Peede was under the influence of an extreme mental
or emotional disturbance at the time of the murder.
But, as noted, the trial court also concluded that this mitigator was
substantially outweighed by Mr. Peede’s prior California convictions for second-
degree murder and assault with a deadly weapon:
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The crime for which Defendant is to be sentenced was committed while the Defendant was under the influence of extreme mental or emotional disturbance.
Viewing the testimony of Dr. Robert Kirkland that the Defendant experienced a specific paranoia that the victim and his ex-wife, Geraldine Peede, were posing in nude magazines, the Court, giving the Defendant the benefit of the doubt, will consider it a mitigating circumstance. The Court also considered the rest of Dr. Kirkland’s testimony and observed that this particular paranoia, had the facts been true, would not have called for or excused violent acts of the Defendant. Based on the totality of Dr. Kirkland’s testimony, which included his opinion that the Defendant chose to act violently although capable of understanding the nature and consequences of his acts and to conform his conduct to the law, I find that although a marginal mitigating circumstance, it is outweighed by the single aggravating circumstance, standing alone, of Defendant’s prior crime of Murder in the Second Degree and Assault with a Deadly Weapon.
Sentencing Order, D.E. 19 at 1265.
At the state post-conviction hearing, Mr. Peede introduced new evidence and
expert testimony aimed at demonstrating that, had defense counsel given
Dr. Kirkland more information about Mr. Peede’s background, including
information concerning his mental health prior to the California shooting, there
was a reasonable probability he would not have been sentenced to death.
As noted, the district court agreed. The court reasoned that the new mental
health evidence probably would have mitigated the California convictions, so the
failure to uncover and introduce that evidence during the penalty phase caused
Mr. Peede prejudice under Strickland. See Order, D.E. 34 at 50–51 (“Had the
aforementioned additional mitigation evidence been presented, a reasonable
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probability exists that the jury would have determined that the prior violent felony
aggravator (California convictions) was mitigated, and thus warranted less
weight.”).
We respectfully disagree. The district court should have deferred to the
Florida Supreme Court’s view of the new mental health evidence and expert
testimony. The Florida Supreme Court concluded:
• “Although it is true that Dr. Kirkland did not have available to him Peede’s records or other background information the evidentiary hearing experts had at their disposal, Dr. Kirkland arrived at conclusions similar to the current experts’ findings.” Peede, 955 So. 2d at 495.
• Dr. Kirkland “provided evidence favorable to Peede in that he opined that the extreme emotional disturbance mitigator applied in Peede’s case, and the trial court agreed.” Id. at 494 (citations omitted).
• “Dr. Kirkland’s essential views would not have changed, and further, the mitigator of extreme mental or emotional disturbance was considered by the trial court due to Dr. Kirkland’s testimony. In fact, the experts at the evidentiary hearing essentially agreed with many of Dr. Kirkland’s main findings.” Id. at 486.
• “[A]lthough Peede’s experts believed the trial court should have found the mitigator regarding capacity to conform conduct to the requirements of the law, the circuit court was within its discretion to agree with the expert witnesses who did not share this belief.” Id. at 494.
• The post-conviction trial court correctly found that “much of the difference between Dr. Kirkland’s conclusions and those of the current defense experts is semantic.” Id. at 495 (quoting trial court).
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The Florida Supreme Court consequently reasoned that there was “no error by the
trial court in concluding that Peede has not demonstrated prejudice.” Id. Our
review of the record gives us no basis to disturb that conclusion under AEDPA.
At bottom, the Florida post-conviction court made findings, adopted by the
Florida Supreme Court, to which we must give deference. See Bottoson v. Moore,
234 F.3d 526, 534 (11th Cir. 2000) (“When there is conflicting testimony
by expert witnesses, as here, discounting the testimony of one expert constitutes a
credibility determination, a finding of fact.” (citation omitted)). Mr. Peede’s post-
conviction hearing involved dueling state and defense expert witnesses. The
state’s experts opined, consistent with Dr. Kirkland’s testimony at trial, that despite
the new mental health evidence, Mr. Peede knew right from wrong and could
control whether he committed murder. State expert Dr. Frank testified that
Mr. Peede’s mental illness did not prevent him from knowing the wrongfulness of
his conduct, as evidenced by the fact that he tried to hide Darla Peede’s body, hid
the knife he used to kill Darla, knew to pull the car over before stabbing her, and
was afraid of being caught. Similarly, state expert Dr. Merin determined that
Mr. Peede knew the wrongfulness of his actions, noting that Mr. Peede’s “behavior
was goal-directed, coherent, and relevant,” and “he was able to make decisions.”
The post-conviction trial court found the state experts’ opinions credible, and gave
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sound reasons for its findings. See Order Denying Amended Motion to Vacate
Judgments of Conviction and Sentence, Aug. 12, 2004 at 2-8.
For example, the post-conviction trial court noted that the defense experts at
the evidentiary hearing testified that Mr. Peede’s delusional disorder was
“narrowly circumscribed” to his beliefs about Geraldine’s and Darla’s infidelity.
Id. at 2, 4. Thus, the post-conviction trial court found that “other than this
mistaken belief regarding the infidelity of his former wives, Mr. Peede’s thoughts
are fully grounded in reality.” Id. at 2. Furthermore, the defense experts testified
that “Mr. Peede was prone to severe emotional outbursts, including violent
outbursts that were completely unrelated to his delusions,” and “there was nothing
about the structure of Mr. Peede’s delusion itself that would have prevented him
from judging between right and wrong.” Id. at 4. Accordingly, the post-conviction
trial court found that the defense experts’ opinion that Mr. Peede was unable to
conform his conduct to the law “appear[ed] inconsistent” with their testimony that
his mental state did not “affect his ability to tell right from wrong.” Id. at 5.
Finally, the post-conviction court found that “Dr. Kirkland’s findings and
conclusions did not vary materially from the findings and conclusions of the
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defense’s current experts.”3 Id. at 3, 8. Under AEDPA, Mr. Peede must rebut
these findings with clear and convincing evidence. See Bottoson, 234 F.3d at 534.
He has failed to do so. Mr. Peede does cite new mental health evidence
which shows that, at times, he had a paranoid and unstable disposition. See, e.g.,
Appellee’s Br. at 46 (prior to the California shooting, a witness testified Mr. Peede
became angry after missing a pool shot and “beat himself” in the face—“busted his
mouth and bruised his eye up”); id. at 26 (Mr. Peede’s aunt visited him while
incarcerated in California, where he started crying and insisted she leave, telling
her “they’re going to kill you, go away”); id. at 44 (Mr. Peede’s uncle described
him as having “mental problems”). That evidence, however, fails to satisfy Mr.
Peede’s hefty burden of establishing that the Florida post-conviction court was
clearly wrong in finding, among other things, that Mr. Peede knew right from
wrong and could control whether he took the life of another.4
3 Though not specifically mentioned by the post-conviction trial court, other evidence in the record also tends to support its credibility determination. For example, as noted by the Florida Supreme Court, Dr. Sultan, one of Mr. Peede’s post-conviction experts, opined “that any psychologist working to support the imposition of the death penalty was unethical.” Peede, 955 So. 2d at 491. Dr. Sultan also admitted that she had been the subject of an investigation by the North Carolina Psychological Board, and though the investigation ultimately was dropped, the Board had cautioned her in several areas regarding her role as a psychologist testifying in forensic settings. 4 Mr. Peede also cites a California Department of Corrections record which mentions schizophrenia and paranoid behavior while incarcerated. See Appellee’s Br. at 48. But Mr. Peede’s experts did not diagnose Mr. Peede with schizophrenia, and we fail to see how this document shows the Florida post-conviction trial court and the Florida Supreme Court were clearly wrong.
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Mr. Peede’s new mental health evidence largely confirms what most experts
and lay witnesses seem to agree about: Mr. Peede could be a violent and angry
man who had issues with jealously and paranoia, especially with women. See, e.g.,
Peede, 955 So. 2d at 492 (“[T]he testimony of three conviction defense mitigation
witnesses established that Peede had always been an angry and suspicious person
and this evidence would not have been helpful to Peede.”). Moreover, though
more detailed, the new mental health evidence is largely consistent with
Dr. Kirkland’s penalty phase testimony that Mr. Peede experienced paranoia and
delusions, specifically related to his wives’ suspected infidelity, and that his
paranoia played a role in Darla Peede’s murder. Under AEDPA, therefore,
Mr. Peede has not given us sufficient reason to disregard the Florida Supreme
Court’s conclusion that Mr. Peede was not prejudiced by counsel’s failure to
introduce this new, more detailed mental health evidence.
B
We also defer to the Florida Supreme Court’s conclusion that there was no
prejudice from counsel’s failure to introduce evidence about Mr. Peede’s
background and upbringing. The Florida Supreme Court reasoned that the
evidence was a double-edged sword that did not undermine confidence in Mr.
Peede’s sentence:
The mitigating evidence Peede presented during the evidentiary hearing was his mother’s suicide, his blistering skin condition as a
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child, his paranoid behavior regarding his wives’ alleged sexual exploits, and his feelings of inadequacy. While this evidence could indeed be seen as mitigating, this mitigation would have been offset by the testimony of Peede’s aggressive and impulsive behavior towards women, including his hitting Nancy Wagoner prior to killing Darla, and his bizarre accusations to various friends and family of sleeping with his second wife, Geraldine. It appears that Peede’s aggression has not subsided in the years since the murder either. This is illustrated by Peede’s reaction when his counsel put his childhood friend John Bell on the stand during the evidentiary hearing; Peede accused him of fathering his youngest child and threatened that he would shoot Bell if he had a gun.
Peede, 955 So. 2d at 494.
The Florida Supreme Court concluded also that “the proffered mitigation
evidence developed in the evidentiary hearing would have been countered by the
substantial negative aspects of Peede’s character and past brought out by the
mitigation witnesses and by the established aggravators in this case.” Id.
Mr. Peede challenges the Florida Supreme Court’s view of the evidence, in
part, by arguing that the trial court at sentencing “minimized [Dr.] Kirkland’s
opinion, including his conclusion that at least one statutory mitigating
circumstance applied, precisely because Kirkland had not based his opinion on any
review of the record.” Appellee’s Br. at 58. But Mr. Peede misreads the record.
Nothing in the trial court’s sentencing order suggests what Mr. Peede argues.
Instead, the trial court weighed Dr. Kirkland’s testimony, which included the
conclusion that Mr. Peede “chose to act violently although capable of
understanding the nature and consequences of his acts and to conform his conduct
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to the law,” and found “that although a marginal mitigating circumstance, it is
outweighed by the single aggravating circumstance, standing alone, of the
Defendant’s prior crime of Murder in the Second Degree and Assault with a
Deadly Weapon.” Sentencing Order, D.E. 19 at 1265.
Our review of the record leads us to conclude that the Florida Supreme
Court did not act unreasonably. Mr. Peede did introduce post-conviction evidence
that, as the Florida Supreme Court observed, established his life was lined with
difficulties leading up to the California shooting. But the new evidence also
solidified that Mr. Peede had been an angry, suspicious, and sometimes violent
man for a good portion of his life.
For example, before murdering Darla Peede, Mr. Peede was violent towards
her and began to drink and smoke marijuana daily, which made him very paranoid.
Even Mr. Peede’s friends and relatives admitted that he was a violent person.
Nancy Wagoner, his 71-year-old aunt, testified that Peede pushed her and caused
her to fall shortly before he murdered Darla. John Bell, a childhood friend,
testified that Mr. Peede had a bad temper growing up and would get very angry. In
1981, Mr. Peede falsely accused Bell of sleeping with Geraldine Peede—an
allegation Mr. Peede repeated when Bell was called to testify at the evidentiary
hearing, at the same time asking the court for a gun and threatening to kill Bell. A
cousin, Michael Brown, testified that as a teenager, Mr. Peede was very aggressive
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with women and would get mad and make disparaging remarks if they spurned his
advances. Brown also recounted a road rage incident between Mr. Peede and
another male driver, in which Mr. Peede drove erratically while yelling at the other
driving, causing Brown to fear for his own safety. Brown further stated that
Mr. Peede also falsely accused him of sleeping with Geraldine Peede.
This new mitigation evidence, therefore, posed a doubled-edge-sword
dilemma—the new information could have hurt as much as it helped, not only
because the information itself could be damaging, but also because of the risk that
the witnesses’ testimony would trigger a violent outburst from Mr. Peede, as
occurred during Bell’s hearing testimony. We have repeatedly ruled that this sort
of post-conviction evidence is usually insufficient to warrant habeas relief. See,
e.g., Evans v. Sec’y, Fla. Dep’t of Corrs., 703 F.3d 1316, 1327 (11th Cir. 2013)
(deferring to state court’s rejection of relief where new evidence was a double-
edged sword because evidence can be more harmful than helpful); Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 650 (11th Cir.
2016) (“And there is a real danger that additional mitigation evidence, particularly
if presented by testifying family members, would have been a ‘double-
edged sword,’ which argues against a showing of prejudice.” (citing cases)). We
come to the same conclusion here.
IV
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For the reasons stated, we conclude the district court erred in granting Mr.
Peede partial habeas relief.
REVERSED.
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JORDAN, Circuit Judge, dissenting:
This is a close and difficult case, but on balance I think the district court got
it right on the issue of Strickland prejudice. I would affirm for the reasons set forth
in pages 28–51 of the district court’s thorough order, which are appended to this
dissent. See D.E. 34 at 28–51.
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