[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 15-10982 & 15-12077
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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.
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Appeal from the United States District Court for the Middle District of Florida
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(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
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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.