William Emmett Lecroy, Jr. v. United States
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Opinion
Case: 12-15132 Date Filed: 01/15/2014 Page: 1 of 54
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT __________________________
No. 12-15132 __________________________
D.C. Docket Nos. 2:08-cv-00083-RWS, 2:02-cr-00038-RWS-SSC-1
WILLIAM EMMETT LECROY, JR.,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
__________________________
Appeal from the United States District Court for the Northern District of Georgia __________________________
(January 15, 2014)
Before TJOFLAT, HULL, and MARCUS, Circuit Judges.
TJOFLAT, Circuit Judge:
William Emmett LeCroy, Jr. is a federal death-row inmate. In 2004, he was
convicted in the Northern District of Georgia of taking a motor vehicle by force
from Joann Lee Tiesler, resulting in her death. See 18 U.S.C. § 2119(3) (2010). Case: 12-15132 Date Filed: 01/15/2014 Page: 2 of 54
LeCroy was sentenced to death, and this court affirmed his conviction and sentence
on direct appeal. United States v. LeCroy, 441 F.3d 914 (11th Cir. 2006), cert.
denied 550 U.S. 905 (2007). LeCroy then petitioned the District Court to vacate
his sentence pursuant to 28 U.S.C. § 2255 (2010). The court, after holding a three-
day evidentiary hearing, denied his petition. United States v. LeCroy, Nos. 2:02-
CR-38-RWS-SSC, 2:08-CV-2277-RWS, 2012 WL 1114238 (N.D. Ga. Mar. 30,
2012). LeCroy now appeals that ruling. His claim is that he was denied the
effective assistance of counsel during the penalty phase of his trial in violation of
the Sixth Amendment. 1 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d (1984). After reviewing the record and the parties’ briefs, and
after hearing oral argument, we affirm the judgment of the District Court.
1 The Sixth Amendment provides, in relevant part, that “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Pursuant to 28 U.S.C. § 2253(c)(1), the District Court issued a certificate presenting for appeal the following claims of ineffective assistance of counsel: Mental Health Case: 1. Failure to adequately investigate and present a mental health case; 2. Failure to conduct and present an adequate and comprehensive mitigation investigation and present character witnesses who were properly prepared; 3. Failure to proffer Petitioner’s teaching expert testimony which would have allowed the District Court to rule on the scope of the Government’s rebuttal evidence and on whether the Government was entitled to evaluate Petitioner; 4. Failure to make an effective penalty phase closing argument regarding mitigation evidence actually presented. Instruction on Future Dangerousness: failure of counsel to object to the instruction regarding claimed future dangerousness because of the “risk” of escape. Instruction on balancing of aggravating and mitigating sentencing factors: failure to object to the District Court’s failure to instruct the jury that before imposing the death penalty, it must find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors presented by the defense. 2 Case: 12-15132 Date Filed: 01/15/2014 Page: 3 of 54
I.
The basic facts of the crime for which LeCroy was convicted and sentenced
have never been in dispute: on October 7, 2001, LeCroy broke into the home of
Joann Tiesler, raped and murdered her, and fled in her car to the Canadian border,
where he was arrested two days later. But because evaluating LeCroy’s § 2255
claim requires an understanding of his life and background, we begin in Subpart A
with a sketch of LeCroy’s biography up to the murder, then describe the murder
and his arrest. Subpart B deals with LeCroy’s attorneys, their investigation of the
case, and their strategic choices heading to trial. Subpart C recounts the events at
trial, and Subpart D describes the § 2255 proceedings in the District Court.
A.
LeCroy was born in 1970 in Marietta, Georgia, to William Emmett LeCroy,
Sr., and Donna Houston. At seventeen, shortly after his parents divorced, he
joined the United States Army. Stationed in Hawaii, LeCroy went absent-without-
leave and lived on the streets of Honolulu, supporting himself by breaking into
homes to steal food. He was arrested in 1989 and discharged from the Army.
Then nineteen years old, LeCroy moved back in with his mother—who had since
married Sam Houston, a former police partner of LeCroy’s father—in Cobb
County, Georgia, just northwest of Atlanta.
3 Case: 12-15132 Date Filed: 01/15/2014 Page: 4 of 54
While living with his mother and stepfather, LeCroy began a sexual
relationship with one of Sam Houston’s two daughters, Alecia, who was just shy of
her fourteenth birthday. The family discovered the relationship in January, 1990,
when Alecia’s mother—Sam Houston’s ex-wife—found a note written by Alecia
to a friend detailing her sexual encounters with LeCroy. Alecia’s mother reported
the incident to the police and urged local authorities to charge LeCroy with
statutory rape.
Meanwhile, the Cobb County police were investigating a string of burglaries
that occurred between late 1990 and early 1991. The police identified LeCroy as a
suspect and arrested him on March 3, 1991, following a traffic stop. Police found
a gun in LeCroy’s car along with several handwritten notes. 2
LeCroy was first convicted in state court for aggravated assault, burglary,
child molestation, and statutory rape. As he was serving his sentence for those
crimes, he was convicted in federal court for possession of a sawed-off shotgun,
which he had obtained in one of his burglaries. He served an additional five years
in federal prison for that offense. In total, he was incarcerated for just over ten
years.
2 One of the notes described a plan to “rob cars and kill people driving so the car can be used two or three days.” Another note appeared to list steps for avoiding apprehension: “burglarize house,” “flee and switch cars,” “be ruthless and famous,” “rape rob and pillage.” A third note was titled “H-L” and contained a list of names. Police believed “H-L” stood for “hit list,” and the names were people LeCroy wanted to kill. 4 Case: 12-15132 Date Filed: 01/15/2014 Page: 5 of 54
LeCroy was released from federal prison in August 2001 and subject to a
three-year term of supervised release. He moved back in with his mother and Sam
Houston, who had since relocated to Blue Ridge, Georgia, in the mountains south
of the Tennessee border. LeCroy was required to undergo a psychosexual
evaluation as a condition of supervised release, but LeCroy left the evaluation
prematurely. His probation officer warned that if he refused the evaluation he
risked being sent back to prison, so LeCroy agreed to return to complete the
evaluation in late October.
Later, at trial, the Government would contend that LeCroy never intended to
make good on this agreement to submit to the evaluation. LeCroy was, according
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Case: 12-15132 Date Filed: 01/15/2014 Page: 1 of 54
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT __________________________
No. 12-15132 __________________________
D.C. Docket Nos. 2:08-cv-00083-RWS, 2:02-cr-00038-RWS-SSC-1
WILLIAM EMMETT LECROY, JR.,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
__________________________
Appeal from the United States District Court for the Northern District of Georgia __________________________
(January 15, 2014)
Before TJOFLAT, HULL, and MARCUS, Circuit Judges.
TJOFLAT, Circuit Judge:
William Emmett LeCroy, Jr. is a federal death-row inmate. In 2004, he was
convicted in the Northern District of Georgia of taking a motor vehicle by force
from Joann Lee Tiesler, resulting in her death. See 18 U.S.C. § 2119(3) (2010). Case: 12-15132 Date Filed: 01/15/2014 Page: 2 of 54
LeCroy was sentenced to death, and this court affirmed his conviction and sentence
on direct appeal. United States v. LeCroy, 441 F.3d 914 (11th Cir. 2006), cert.
denied 550 U.S. 905 (2007). LeCroy then petitioned the District Court to vacate
his sentence pursuant to 28 U.S.C. § 2255 (2010). The court, after holding a three-
day evidentiary hearing, denied his petition. United States v. LeCroy, Nos. 2:02-
CR-38-RWS-SSC, 2:08-CV-2277-RWS, 2012 WL 1114238 (N.D. Ga. Mar. 30,
2012). LeCroy now appeals that ruling. His claim is that he was denied the
effective assistance of counsel during the penalty phase of his trial in violation of
the Sixth Amendment. 1 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d (1984). After reviewing the record and the parties’ briefs, and
after hearing oral argument, we affirm the judgment of the District Court.
1 The Sixth Amendment provides, in relevant part, that “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Pursuant to 28 U.S.C. § 2253(c)(1), the District Court issued a certificate presenting for appeal the following claims of ineffective assistance of counsel: Mental Health Case: 1. Failure to adequately investigate and present a mental health case; 2. Failure to conduct and present an adequate and comprehensive mitigation investigation and present character witnesses who were properly prepared; 3. Failure to proffer Petitioner’s teaching expert testimony which would have allowed the District Court to rule on the scope of the Government’s rebuttal evidence and on whether the Government was entitled to evaluate Petitioner; 4. Failure to make an effective penalty phase closing argument regarding mitigation evidence actually presented. Instruction on Future Dangerousness: failure of counsel to object to the instruction regarding claimed future dangerousness because of the “risk” of escape. Instruction on balancing of aggravating and mitigating sentencing factors: failure to object to the District Court’s failure to instruct the jury that before imposing the death penalty, it must find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors presented by the defense. 2 Case: 12-15132 Date Filed: 01/15/2014 Page: 3 of 54
I.
The basic facts of the crime for which LeCroy was convicted and sentenced
have never been in dispute: on October 7, 2001, LeCroy broke into the home of
Joann Tiesler, raped and murdered her, and fled in her car to the Canadian border,
where he was arrested two days later. But because evaluating LeCroy’s § 2255
claim requires an understanding of his life and background, we begin in Subpart A
with a sketch of LeCroy’s biography up to the murder, then describe the murder
and his arrest. Subpart B deals with LeCroy’s attorneys, their investigation of the
case, and their strategic choices heading to trial. Subpart C recounts the events at
trial, and Subpart D describes the § 2255 proceedings in the District Court.
A.
LeCroy was born in 1970 in Marietta, Georgia, to William Emmett LeCroy,
Sr., and Donna Houston. At seventeen, shortly after his parents divorced, he
joined the United States Army. Stationed in Hawaii, LeCroy went absent-without-
leave and lived on the streets of Honolulu, supporting himself by breaking into
homes to steal food. He was arrested in 1989 and discharged from the Army.
Then nineteen years old, LeCroy moved back in with his mother—who had since
married Sam Houston, a former police partner of LeCroy’s father—in Cobb
County, Georgia, just northwest of Atlanta.
3 Case: 12-15132 Date Filed: 01/15/2014 Page: 4 of 54
While living with his mother and stepfather, LeCroy began a sexual
relationship with one of Sam Houston’s two daughters, Alecia, who was just shy of
her fourteenth birthday. The family discovered the relationship in January, 1990,
when Alecia’s mother—Sam Houston’s ex-wife—found a note written by Alecia
to a friend detailing her sexual encounters with LeCroy. Alecia’s mother reported
the incident to the police and urged local authorities to charge LeCroy with
statutory rape.
Meanwhile, the Cobb County police were investigating a string of burglaries
that occurred between late 1990 and early 1991. The police identified LeCroy as a
suspect and arrested him on March 3, 1991, following a traffic stop. Police found
a gun in LeCroy’s car along with several handwritten notes. 2
LeCroy was first convicted in state court for aggravated assault, burglary,
child molestation, and statutory rape. As he was serving his sentence for those
crimes, he was convicted in federal court for possession of a sawed-off shotgun,
which he had obtained in one of his burglaries. He served an additional five years
in federal prison for that offense. In total, he was incarcerated for just over ten
years.
2 One of the notes described a plan to “rob cars and kill people driving so the car can be used two or three days.” Another note appeared to list steps for avoiding apprehension: “burglarize house,” “flee and switch cars,” “be ruthless and famous,” “rape rob and pillage.” A third note was titled “H-L” and contained a list of names. Police believed “H-L” stood for “hit list,” and the names were people LeCroy wanted to kill. 4 Case: 12-15132 Date Filed: 01/15/2014 Page: 5 of 54
LeCroy was released from federal prison in August 2001 and subject to a
three-year term of supervised release. He moved back in with his mother and Sam
Houston, who had since relocated to Blue Ridge, Georgia, in the mountains south
of the Tennessee border. LeCroy was required to undergo a psychosexual
evaluation as a condition of supervised release, but LeCroy left the evaluation
prematurely. His probation officer warned that if he refused the evaluation he
risked being sent back to prison, so LeCroy agreed to return to complete the
evaluation in late October.
Later, at trial, the Government would contend that LeCroy never intended to
make good on this agreement to submit to the evaluation. LeCroy was, according
to his increasingly concerned stepfather, spending time alone in his room on the
computer. Investigators determined the computer was used to search for survival
gear, and to scan and copy Sam Houston’s passport. Investigators also found a
“need to acquire” list written on the back of the letter scheduling LeCroy’s original
evaluation; the list included binoculars, boots, gloves, guns, ammunition, food, and
water.
LeCroy’s mother and stepfather went away for the weekend on October 5,
leaving LeCroy alone in their cabin. That weekend there was a series of robberies
in the neighborhood, including the theft of medical supplies, a shotgun, and
ammunition.
5 Case: 12-15132 Date Filed: 01/15/2014 Page: 6 of 54
On the evening of October 7, LeCroy broke into Joann Tiesler’s home
through a bedroom window, armed with a shotgun, a knife, and plastic cable ties.
LeCroy made sure to return the open window blinds to their original position, so
that from the outside Tiesler’s house appeared undisturbed. Tiesler, a nurse, had
been away for the weekend visiting her fiancé in Rome, Georgia. She returned
home around 6:00 p.m.
As Tiesler entered her home, LeCroy approached from behind and struck her
on her head with the butt of his shotgun, causing the gun to discharge in the
hallway outside her bedroom. LeCroy bound Tiesler’s hands behind her back with
the plastic cable ties. LeCroy stripped her and raped her vaginally and anally.
After that, he strangled her with an electrical cord, slashed her throat with his
knife, and stabbed her five times in the back before wiping the knife off on her
shirt. LeCroy left Tiesler’s house and drove away in her car. A real-estate agent
and one of Tiesler’s coworkers discovered her body the next day, naked and bound
on her bed.
LeCroy was arrested on October 9, 2001, two days after Tiesler’s murder.
He was captured at the border between Minnesota and Canada, still driving
Tiesler’s car. Inside the car, police found a knife covered in Tiesler’s blood and
plastic cable ties like those used to bind Tiesler’s wrists. A note found in the car
read, “Please call the police and report this vehicle as stolen. Thanks, The Thief.”
6 Case: 12-15132 Date Filed: 01/15/2014 Page: 7 of 54
A second note, written on the back of a map, read “Please please please forgive me
Joanne [sic]. You were an angel and I killed you. Now I have to live with that and
I can never go home. I am a vagabond and doomed to hell.”
B.
On May 15, 2002, a Northern District of Georgia grand jury indicted LeCroy
for taking a motor vehicle by force, violence, and intimidation from Joann Tiesler,
resulting in her death. See 18 U.S.C. § 2119(3). A superseding indictment, dated
August 13, 2002, added special death-eligibility allegations. LeCroy was
appointed a team of lawyers from the Northern District of Georgia Federal
Defender Program: Paul Kish, Stephanie Kearns, and Brian Mendelsohn. 3 Later, a
fourth attorney—Daniel Summer—was appointed as local counsel from the
Gainesville area, where the trial would be held.4 The attorneys agreed that Kish
and Summer would focus on the guilt phase of trial, while Kearns and Mendelsohn
would focus on the penalty phase.
3 Kish began practicing in 1982, and joined the Federal Defender Program in 1985. At the time of trial, Kish was the Deputy Director of the Federal Defender Program. Kearns received her law degree in 1975 and had spent her whole legal career doing federal criminal defense work. At the time of trial, Kearns was Executive Director of the Federal Defender Program. LeCroy’s was her second federal death penalty case. Mendelsohn received his law degree in 1990 and worked at an organization providing postconviction representation to death row inmates in Georgia before joining the Federal Defender Program in 1995. 4 Summer had substantial criminal law experience, including a Georgia death penalty trial. The other attorneys agreed he was particularly helpful during jury selection, when he was able to explain “the churches that people went to, what significance that had or where they lived, that sort of thing.” Collateral Tr. Vol. I at 87. 7 Case: 12-15132 Date Filed: 01/15/2014 Page: 8 of 54
With the help of two investigators, Susan Miller and Michael Hutcheson, the
defense attorneys gathered extensive records of LeCroy’s background. They
gathered school records, military records, records relating to LeCroy’s earlier
criminal convictions, prison records, and police reports relating to Tiesler’s
murder. The attorneys delivered all these records to Doctor Michael Hilton, a
forensic psychiatrist the attorneys hired on March 27, 2003, to conduct an
evaluation of LeCroy. Paul Kish testified at the § 2255 hearing that the public
defender’s office “quite often used [Hilton]” to conduct these sorts of evaluations.
Collateral Tr. Vol. I at 14. As Paul Mendelsohn later testified, the attorneys never
planned to call Doctor Hilton as a witness at trial; his evaluation was, instead, to be
a “test run” so that the defense team could see what a psychiatric evaluation of
LeCroy would reveal before making any final strategic judgments: “[T]he idea
behind Dr. Hilton was to see what would happen, what kind of results we would
get in an evaluation if we just did a straight evaluation. . . . [W]e were going to
see what results he came back with, and then with that information in hand,
proceed with the rest of the case.” Collateral Tr. Vol. II at 265.
Doctor Hilton met with LeCroy in prison for four and a half hours, and
prepared a set of reports for defense counsel. One report related Doctor Hilton’s
conclusion that LeCroy was competent and that he could not present an affirmative
defense of not guilty by reason of insanity. Another report summarized Doctor
8 Case: 12-15132 Date Filed: 01/15/2014 Page: 9 of 54
Hilton’s psychiatric evaluation of LeCroy, reflecting Doctor Hilton’s diagnoses
and professional observations.
During the evaluation, LeCroy told Doctor Hilton about his troubled
upbringing. His parents’ marriage had been an unhappy one: his father—William
LeCroy, Sr.—was verbally abusive toward his mother, a “loving, gentle, timid
woman.” Hilton Report at 3. The two eventually divorced, and one year later
LeCroy’s mother married Sam Houston.
LeCroy told Doctor Hilton that when he was eight years old he had sexual
encounters with a female babysitter he knew as “Tinkerbell.” LeCroy and his
brother played a “kissing game” with her: they would run up to her, kiss her, and
then run away. One night, Tinkerbell came into LeCroy’s bedroom and told him
that he needed to “know how to do it right,” and began kissing him, undressing
him, and performing oral sex on him. A week later, Tinkerbell again molested him
and the two may have had intercourse. The day after that, however, LeCroy
attempted to visit Tinkerbell—who lived in an apartment above the LeCroys’
apartment—and discovered her coming down the stairs arm-in-arm with a
boyfriend. Tinkerbell gave LeCroy what he called a “malevolent” smile. The
LeCroy family moved a week later, and he never saw Tinkerbell again or told his
family what happened.
9 Case: 12-15132 Date Filed: 01/15/2014 Page: 10 of 54
Turning to Tiesler’s murder, LeCroy described the crime to Doctor Hilton in
lurid detail. After being released from federal prison in August 2001 and moving
in with his mother and Sam Houston in Blue Ridge, Georgia, LeCroy began
commuting by motorcycle to the town of Marietta, where he worked with his
father. He passed Joanne Tiesler’s house every day and the two would usually
wave to each other. In early October 2001, LeCroy—convinced that the
government was determined to put him back in prison—traveled out into the
woods, where he had hidden a cache of survival gear.
On his way to check up on his cache in the woods, LeCroy passed Tiesler’s
house and waved to her. She did not wave back. Later, at his hiding spot in the
woods, LeCroy heard the sound of car tires on gravel and turned to see Tiesler
driving toward him in a sport-utility vehicle. LeCroy told Doctor Hilton that
Tiesler stopped, said “Huh!” through her half-open driver’s side window, and then
turned her vehicle around and drove away.
LeCroy’s brief interaction with Tiesler in the woods apparently disturbed
him a great deal. He began to dwell on Tiesler, until his thoughts turned to the
possibility that Tiesler was, in fact, Tinkerbell, the babysitter who had sexually
abused him as a child. LeCroy began to suspect that Tinkerbell had been a witch
and that her sexual abuse had placed him under some kind of spell, and that in turn
this spell explained all the troubles and frustrations in his life. He reasoned that if
10 Case: 12-15132 Date Filed: 01/15/2014 Page: 11 of 54
Tiesler—by now synonymous with Tinkerbell—had placed some kind of sexual
spell on him, she could also be made to undo that spell. As Doctor Hilton related
it, “[LeCroy] started to develop a plan that he needed to reverse the roles on
Tinkerbell and do to her what she had done to him.” Hilton Report at 10.
Because the contents of Doctor Hilton’s report came to play a crucial role
both in the defense attorneys’ thinking and in LeCroy’s subsequent ineffective
assistance claim, we reprint here an illustrative excerpt of the report:
Mr. LeCroy went back to Ms. Tiesler’s house and went inside to wait for her. He then heard a car drive up. He became nervous. He looked out the window and saw that it was some of Ms. Tiesler’s neighbors arriving at the cabin next door. He continued to wait and was quite nervous. He used her restroom. He urinated and defecated in the toilet. As he was coming out of the bathroom, he heard another vehicle coming. He went into her bedroom and could hear her approaching the cabin. As she came in, he saw her and struck her in the back of the head with the gun. The shotgun accidentally discharged, shooting into the wall. She fell on the floor. He told her not to look at him. He also, however, had the collar of his combat uniform pulled up over the bottom part of his face and the back of the collar pulled up around the back of his head over the top of his head, so that only his eyes were exposed. He said the conversation was minimal. He told her several times, “You know what I want.” She questioned him about the possibility of wanting money, and he told her he did not want her money. He used the plastic ties that he brought with him to tie her hand [sic] together. He then tied her legs together. As he started undoing her belt, she asked him, ‘Is this what this is?’ He did not say anything. She cooperated with him as he took her pants down. She stated only, ‘Not on the floor.’ Mr. LeCroy picked her up and put her on the side of the bed. He said his penis was too soft to penetrate her. He asked for some Vaseline. She told him where it was. He put some Vaseline on his penis and on her vagina. He was then able to penetrate her and immediately developed an erection. During the act, they were both silent. After he climaxed, 11 Case: 12-15132 Date Filed: 01/15/2014 Page: 12 of 54
he told her it was her turn to “undo it.” She questioned him about what he meant. He told her she knew. They argued a little bit. He told her, “I'm getting pissed off.” She was trying to appease him, but was not complying with his demands. He did not know what she had done the first time (when he was a child). He put a new shotgun shell in his shotgun and threatened her, yet she still did not comply. He then found a cord from a carbon monoxide monitor and looped it around her neck. He told her to “do it or else,” but she did not know what to do. He started choking her to the point that she could not breathe. She started gasping. She grabbed at his pants legs. He heard her start to urinate and defecate on herself. He then let go of the cord and said, “That’s it.” He told her, “You can do it or I’ll do it.” At that time, she was only making mumbling sounds. He pulled his knife out of its sheath, grabbed her head by her hair from behind, pulled her head back and cut her throat as hard as he could. She went limp immediately, but he could still hear breathing sounds. He became frustrated that she would not die. He started to think, “I can’t kill this woman.” He walked out of the bedroom and looked out the window to see if anyone was around. He was planning to go back into the bedroom and shoot her in the back of the head with both barrels of the shotgun, but when he went into the bedroom, she was not making any sounds. She was dead.
Hilton Report at 10–11.
As LeCroy’s defense team considered their options in light of Doctor
Hilton’s report, they were operating in the shadow of Rule 12.2(b) of the Federal
Rules of Criminal Procedure, which requires a defendant to notify the Government
in advance of trial if the defendant plans to introduce expert testimony on mental
health issues at either the guilt or penalty phase of trial. 5 Rule 12.2 further
5 See Fed. R. Crim. P. 12.2(b) (“If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must— 12 Case: 12-15132 Date Filed: 01/15/2014 Page: 13 of 54
provides that if a defendant elects to introduce expert evidence bearing on a mental
health issue, the defendant must make the results and reports of the defendant’s
expert available to the Government, and the defendant himself may be required to
submit to an evaluation by a Government expert.6 See Fed. R. Crim. P. 12.2(c).
Having seen Doctor Hilton’s report, the attorneys unanimously agreed they
were, as Mendelsohn put it, “very scared of [a] government evaluation.” Collateral
Tr. Vol. II at 159. In short, Mendelsohn said, the defense team “made a decision
not to have [LeCroy] evaluated and stuck with that all the way through.” Id. at
172. Nonetheless, the attorneys recognized that some information in Doctor
Hilton’s report would be useful in mitigation: the evidence of childhood sexual
abuse, specifically, might both arouse sympathy from the jury and offer a
mitigating explanation of LeCroy’s crime. The trick was finding a way to
introduce the mitigating aspects of LeCroy’s background without also opening the
door to the wealth of aggravating information in Doctor Hilton’s report.
within the time provided for filing a pretrial motion or at any later time the court sets—notify an attorney for the government in writing of this intention . . . .”). 6 Rule 12.2 serves both efficiency and fairness purposes in criminal trials. It implicates fairness because it alerts the Government to a defendant’s intention to introduce expert mental- health evidence, thereby giving the Government a chance to prepare its own mental-health evidence in rebuttal. This, in turn, implicates efficiency in the courts because the preparation of mental-health evidence frequently requires the use of expensive and time-consuming experts. Early notice and reciprocity, then, motivate the Rule 12.2 requirement. See generally Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure: Criminal § 205 (4th ed. 2008). 13 Case: 12-15132 Date Filed: 01/15/2014 Page: 14 of 54
The attorneys developed a plan to introduce Doctor David Lisak as a
“teaching expert” on the relationship between childhood sexual abuse and
criminality in men. Doctor Lisak, a clinical psychologist and Associate Professor
of Psychology at the University of Massachusetts in Boston, was known to the
attorneys as perhaps the nation’s preeminent expert on childhood sexual abuse of
males. Instead of evaluating LeCroy himself—and thereby triggering the
reciprocity provisions of Rule 12.2—Doctor Lisak was to review a documentary
record of LeCroy’s life, drawn from his state prison records, his pre-sentence
report from the 1995 federal conviction, his counseling records from prison, and
Doctor Hilton’s report. In front of the jury, Doctor Lisak would explain that
individuals who experience childhood sexual abuse experience significant
psychological problems later in life, and that these problems can be especially
acute in men who are abused as children, leading to an elevated risk of later
criminal behavior.
Doctor Lisak’s testimony would thereby provide a backdrop for the jury,
against which the defense lawyers hoped to introduce evidence of LeCroy’s
childhood abuse. Doctor Gary Ganahl, a psychological consultant for the Georgia
Department of Corrections who evaluated LeCroy in prison following a suicide
attempt, had been told by LeCroy about physical abuse at the hands of his father
and sexual abuse by a female babysitter. Similarly, Doctor Marti Carlson—a
14 Case: 12-15132 Date Filed: 01/15/2014 Page: 15 of 54
clinical psychologist from the federal Bureau of Prisons—had also seen LeCroy
when he was incarcerated and heard him report physical abuse by his father and
sexual abuse by a female babysitter. Finally, the defense retained Jan Vogelsang, a
clinical social worker, to conduct wide-ranging social and psychological evaluation
of LeCroy and his family. Vogelsang would testify that aspects of LeCroy’s
childhood put him at special risk of criminality as an adult, including a history of
mental illness in his family, a troubled relationship with his father, and a generally
dysfunctional family environment.
By combining Doctor Lisak’s “teaching” testimony with the factual
testimony of Vogelsang and doctors Ganahl and Carlson, the defense team hoped
to replicate the helpful aspects of Doctor Hilton’s report—that is, the inference that
LeCroy’s crime was the product of an abusive and dysfunctional childhood, or as
Kearns put it more bluntly: “That Mr. LeCroy was damaged goods because of what
he suffered in his childhood and that that might explain why he would do
something so awful,” Collateral Tr. Vol. I at 96—without triggering Rule 12.2’s
requirement that LeCroy be evaluated by a Government expert. Kish explained
that the strategy was to “have the teaching expert [i.e., Doctor Lisak] talk with the
jury about what happens when a person has been the subject of childhood sexual
abuse, and in that fashion avoid having to make Mr. LeCroy available for a
government examination.” Collateral Tr. Vol. I at 45–46. Mendelsohn explained
15 Case: 12-15132 Date Filed: 01/15/2014 Page: 16 of 54
that the lawyers themselves could then “draw inferences from what we got out of
Dr. Lisak and the facts that we put into the record to then argue it to the jury.”
Collateral Tr. Vol. II at 159.
The defense team’s teaching-expert strategy became the subject of intense
pre-trial wrangling with the Government. On October 17, 2003, LeCroy gave
notice pursuant to Federal Rule of Criminal Procedure 12.2(b) that he intended to
introduce an expert regarding mental health. The Government moved for a
psychiatric examination of LeCroy, and Magistrate Judge Susan S. Cole granted
that motion on November 10, 2003. LeCroy appealed, and defense counsel met ex
parte with District Judge Richard W. Story to contest the Government’s right to an
independent evaluation. Judge Story ordered a compromise: the Government
would appoint a team of “firewalled” attorneys to address only the mental-health
issues in LeCroy’s trial, and these firewalled attorneys would not disclose any
mental-health evidence to the primary prosecution team. Judge Story ordered the
firewalled attorneys and the defense team to confer regarding the need for the
Government to conduct an independent evaluation.
The firewalled attorneys ultimately argued that they did need an independent
mental evaluation of LeCroy, and Judge Story agreed after a hearing on December
22, 2003, that the Government was entitled to such an evaluation under Rule 12.2.
The defense complied with an order to give a list of mental-health experts they
16 Case: 12-15132 Date Filed: 01/15/2014 Page: 17 of 54
planned to use to the firewalled attorneys, but argued that there was no need for the
Government to conduct a full examination of LeCroy because their own expert—
Doctor Lisak—would be testifying only as a teaching expert, without himself
having conducted an evaluation of LeCroy. The Government objected, and Judge
Story agreed that because LeCroy planned to present expert evidence regarding
childhood trauma, “thereby inviting the jury to make conclusions about how
Defendant’s childhood trauma may have impacted him and could impact him in
the future,” that the Government was entitled to its own evaluation by its own
expert, Doctor Julie Medlin. That examination never happened, however, because
LeCroy—following his lawyers’ advice—invoked his Fifth Amendment right
against self incrimination 7 and refused to submit to the Government evaluation.
Judge Story nevertheless reserved a final ruling on whether Doctor Lisak
would be allowed to testify as a teaching witness. Before trial, the arrangement
was that Doctor Medlin would review the mental-health evidence otherwise
available through discovery and prepare a written mental-health opinion under
seal. At the close of the guilt phase of trial, the report would be released to defense
counsel and to the firewalled prosecutors, at which point the defense team could
make a decision about whether to introduce Doctor Lisak’s testimony at
7 The Fifth Amendment provides, in relevant part, that “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. 17 Case: 12-15132 Date Filed: 01/15/2014 Page: 18 of 54
sentencing, in which case the Medlin report would be released to the primary
prosecution team.
C.
LeCroy’s trial began on February 17, 2004. Faced with overwhelming
evidence that LeCroy had killed Tiesler, the defense attorneys seized upon a
botched-burglary defense at the guilt phase of the trial: they argued that LeCroy
merely planned to rob Tiesler’s home, but panicked when she caught him in the act
and murdered her on impulse. As Kish put it to the jury in his guilt-phase closing
argument, the whole episode was not a carjacking but “an irrational criminal act in
the middle of a burglary.”
The botched-burglary defense was jurisdictional: the case was only in
federal court because the Government had charged LeCroy with carjacking, which
in turn required the Government to prove that LeCroy killed Tiesler with the intent
of taking her car. See 18 U.S.C. § 2119; see also Holloway v. United States, 526
U.S. 1, 12, 119 S. Ct. 966, 972, 143 L. Ed. 2d 1 (1999) (“The intent requirement of
§ 2119 is satisfied when the Government proves that at the moment the defendant
demanded or took control over the driver’s automobile the defendant possessed the
intent to seriously harm or kill the driver if necessary to steal the car.”) (emphasis
added); United States v. Applewhaite, 195 F.3d 679, 686 (3d. Cir. 1999). If the
defense could instead convince the jury that the crime had been a robbery gone
18 Case: 12-15132 Date Filed: 01/15/2014 Page: 19 of 54
bad—that LeCroy had panicked upon being discovered in Tiesler’s house and
impulsively killed her, and only later formed the intent to take her car as a means
of escape—then the federal jurisdictional hook would be absent and LeCroy would
evade a federal conviction. 8 LeCroy’s jurisdictional argument was unsuccessful,
and the jury found LeCroy guilty on March 1, 2004, but the botched-burglary
theory of the case would continue to play a role in the defense team’s calculations
as the case proceeded to sentencing.
At the sentencing phase of the trial, the Government’s case-in-chief
consisted of victim-impact evidence from Tiesler’s family and friends, testimony
relating to LeCroy’s convictions in the early 1990s, and testimony regarding
LeCroy’s conduct while incarcerated. Of special relevance was testimony from
two Lumpkin County law-enforcement officials who had witnessed LeCroy escape
from his cell in the Lumpkin County Detention Center. Officer Aaron Welch, a
Lumpkin County detention officer, testified that in 2003 LeCroy (and other
inmates) were using a catwalk in the Detention Center’s drop ceiling as a “virtual
highway” between male and female cells. Officer Christopher Holman of the
Lumpkin County Sheriff’s Office testified that in one incident two female inmates
8 LeCroy would, of course, have been vulnerable to a state prosecution even if he were acquitted of the federal carjacking charge, but his attorneys’ immediate concern was avoiding the federal conviction. As Kish testified at the § 2255 evidentiary hearing, “if we had won the jurisdictional challenge, then the case was definitely going to be going to Gilmer County. But what we were tasked to do was to try to win the federal case, the matter directly in front of us.” Collateral Tr. Vol. I at 54. 19 Case: 12-15132 Date Filed: 01/15/2014 Page: 20 of 54
were found under a bed in LeCroy’s cell. In a separate incident, Holman inspected
LeCroy’s cell and found that LeCroy had created a hole in the shower wall that
was large enough for a man to sneak through. In the crawlspace, they found a note
written on the wall: “So well, have a great day explaining to the Marshals about
me. Thanks for the food, . . . smokes, and women, LeCroy. P.S. Had a great time
here but sorry I won’t miss you.”
After the Government rested, LeCroy called a variety of mitigation
witnesses to rebut the suggestion that LeCroy had been a threat to others in prison
or that he had attempted to escape. Some of the witnesses had been incarcerated
with LeCroy and testified that he had been pleasant and peaceful. A retired Bureau
of Prisons official, Donald Romine, testified as an expert on the security of federal
prisons and said that a person convicted of LeCroy’s crimes would be held in a
maximum security facility from which escape would be especially difficult.
The defense attorneys had, by this time, decided not to call Doctor Lisak as a
teaching expert. They had been given a copy of Doctor Medlin’s report at the
conclusion of the guilt phase of trial, and concluded after reviewing the report that
calling Doctor Lisak would only initiate an unhelpful battle of experts between
Doctor Lisak and Doctor Medlin. Before presenting other mental health evidence,
the defense team sought clarification from the Judge Story about what questions
20 Case: 12-15132 Date Filed: 01/15/2014 Page: 21 of 54
could be put to LeCroy’s former psychiatrists 9 about LeCroy’s mental health.
Judge Story ruled that the witnesses were permitted to testify about fact matters
related to them in meetings with LeCroy, but could not testify about psychological
testing, results, diagnoses, or opinions without triggering Doctor Medlin’s
testimony in rebuttal.
LeCroy subsequently called Doctor Gary Ganahl, who testified that he met
with LeCroy in 1992 after LeCroy attempted suicide in state prison. Doctor
Ganahl said that LeCroy related a troubled childhood, including sexual abuse by a
female babysitter. Doctor Marti Carlson, who saw LeCroy in federal prison, also
testified and also related that LeCroy had told her about having a troubled
childhood and about being molested as a child by a female babysitter.
LeCroy also called a series of friends and family to testify about his good
character. His mother, Donna Houston, took the stand, but given her emotional
state, was unable to go forward with her testimony. She then said that she had
informed Jan Vogelsang about LeCroy’s early life and her marriage to LeCroy’s
father and had nothing to add. She did ask the jury for mercy.
Vogelsang testified at length about her interviews with LeCroy’s friends and
family, which she compiled as part of what she called a “biopsychosocial”
9 The former psychiatrists had examined and in some instances had treated LeCroy while he was incarcerated in state and federal prisons. 21 Case: 12-15132 Date Filed: 01/15/2014 Page: 22 of 54
assessment. 10 Beginning with LeCroy’s father, LeCroy, Sr., Vogelsang testified
that he grew up in “a family that was without limits and without boundaries; and
this was more in the area of gambling, the areas of money and the areas of the
ready availability of weapons.” Several family members demonstrated suicidal
behavior and the children were poorly supervised. Within the extended family,
“cousins continued to have sex with each other, to engage in sexual behaviors that
sometimes were almost right in front of their parents with nothing being said.”
The male members of LeCroy, Sr.’s family were particularly dismissive of women,
saying that “if it weren’t for sex, women would have a bounty on their heads.”
With his own family, LeCroy, Sr. was highly controlling and often abusive.
He was particularly controlling of LeCroy’s mother, frequently interrogating her
about her whereabouts and the possibility that she was unfaithful to him. Their
divorce was, Vogelsang said, particularly terrible: LeCroy, Sr. threatened to rape
and kill LeCroy’s mother and kill her coworkers. After an episode in which
LeCroy, Sr. put his gun to Donna Houston’s forehead, he gave his gun to LeCroy
to keep him from killing her.
According to Vogelsang, LeCroy joined the Army to escape his fractured
home life. Early in his military career, however, LeCroy broke his ankle, scuttling
10 Vogelsang defined this as a “method of collecting extensive information on an individual and/or his family. Typically [the report] covers at least three or four generations” of a family. 22 Case: 12-15132 Date Filed: 01/15/2014 Page: 23 of 54
his dream of becoming a paratrooper. Stationed in Hawaii, he began drinking and
taking drugs before going absent-without-leave, getting arrested, and taking a
discharge. After returning home, LeCroy began a sexual relationship with his step-
sister Alecia after his brother, Chad, began a sexual relationship with their other
step-sister, Priscilla. Finally, Vogelsang listed a set of factors she believed made it
more likely for someone of LeCroy’s background to commit serious crimes.
On cross-examination, Vogelsang said her report covered LeCroy’s
background up to 1991 and did not include the time of Tiesler’s murder.
Vogelsang testified that LeCroy did well in school, that no member of LeCroy’s
immediate family remembered a female babysitter named Tinkerbell or knew that
LeCroy had been molested, and that after his release from federal prison in 2001,
LeCroy’s mother and father opened their homes to him and tried to facilitate his
reentry to society.
Kearns delivered the closing argument in mitigation. About sexual abuse,
Kearns said:
And, again, I think if you look at his history, what you see and what—the family history, what Jan Vogelsang and what Dr. Carlson, I think, more importantly shows to you is that you have someone who has a basic moral fiber. His entire childhood through that divorce he was a good kid. He was doing well in school. He sought out ROTC, it’s in the writings, he seeks out ROTC because it gives him something that he is missing, those boundaries that Jan Vogelsang described there were a lack of. He seeks it out on his own. He knows that ROTC is healthy for him, it has discipline, it builds his self-
23 Case: 12-15132 Date Filed: 01/15/2014 Page: 24 of 54
esteem, the self-esteem that is in the pits. And you know he has virtually no self-esteem. And what does he attribute that to? The baby-sitter, to the sexual abuse he suffered as a child. And the government may—Mr. Burby made a big deal yesterday of one of the witnesses about he never described the child molestation to anybody. He didn't tell anybody. His family didn’t know about it. Come on, this is 2004. You know, we all watch TV. If we haven’t read books about it, why do we have all these priests that are now being accused of sexual abuse for things they did 20 years ago? Because children don’t talk about it. For whatever reasons, whatever happens. That doesn’t mean it didn’t happen. Why would he be talking about sexual abuse by a teenager while he’s in therapy with Dr. Carlson? He’s not in therapy to get out of jail. He’s not in therapy to cut his sentence short. He has no benefit to gain from the therapy or the [Drug Abuse Program] program that he was involved in El Reno except self-improvement or to relieve himself, learn how to deal with his anger and get beyond his anger so that his life will be better emotionally. There’s no motive to lie about the baby-sitter. And he’s talking about the baby-sitter in ‘92 and he’s talking about the baby-sitter in ‘99. But it’s a significant event because it robbed him of his self-esteem. That’s the impact it had on him. We know that from what he’s written.
Trial Tr. at 2715–16.
The jury returned a death sentence on March 10, 2004.11 LeCroy filed a
motion for a new trial on March 17, 2004, and the District Court denied that
11 The jury found that all of the eligibility factors, and all of the statutory and nonstatutory aggravating factors, existed. The eligibility factors were that LeCroy intentionally killed Tiesler and intentionally inflicted serious bodily injury that resulted in her death. The statutory aggravating factors were that LeCroy committed the murder in an especially heinous, cruel, and depraved manner, and that LeCroy committed the crime after substantial planning and premeditation. The nonstatutory aggravating factors were that LeCroy would be a future danger to the lives and safety of others, and that LeCroy caused injury, harm, and loss to the victim’s family. See Trial Tr. at 2766–67. By statute, a jury need only find one statutory aggravator to impose the death penalty. See 18 U.S.C. § 3593(e) (2010). 24 Case: 12-15132 Date Filed: 01/15/2014 Page: 25 of 54
motion on October 12 of the same year. On October 25, LeCroy appealed his
conviction and sentence to this court, and we affirmed on March 2, 2006. See
LeCroy, 441 F.3d at 931.
D.
On April 22, 2008, LeCroy petitioned the District Court to vacate his death
sentence pursuant to § 2255, asserting—as relevant to this appeal—that he had
been denied the effective assistance of counsel at trial. 12 The claim LeCroy
presented has two elements.
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
The jury also found the following mitigating factors: that LeCroy’s conduct was appropriate during his ten years in prison, that LeCroy was subjected to emotional and physical abuse as a child, that he grew up in an unstable and violent environment, that he had been exposed to a harsh and difficult prison life, that he was a kind and loving grandson, son, brother, and friend, that he had shown himself to be a person capable of kindness, friendship, and generosity, that he was deeply tormented after his fiancé got an abortion, that in prison he had helped other inmates and participated in counseling, that he would likely do well in a prison environment, that executing him would cause his family grief, and that he spent the first 18 years of his life in an abusive household and another ten years in a prison environment. Two jurors found that LeCroy expressed remorse, and six found that he was molested as a child. The jury found, finally, that the aggravating factors sufficiently outweighed any mitigating factors so as to justify the imposition of the death penalty. See Trial Tr. at 2767–70. 12 Section 2255 provides that “[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 25 Case: 12-15132 Date Filed: 01/15/2014 Page: 26 of 54
result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
The court held an evidentiary hearing on LeCroy’s claims on January 11–13,
2010 and on February 8, 2010. LeCroy presented the testimony of his attorneys
Kish, Kearns, and Mendelsohn, in addition to doctors Hilton, Carlson, Lisak, and
Medlin. The court found that LeCroy had failed to carry his burden of proof on
either of Strickland’s elements, performance or prejudice, and accordingly denied
him § 2255 relief. Regarding performance, the District Court credited testimony of
LeCroy’s attorneys that they had settled on the jurisdictional defense at the guilt
phase of trial and on the teaching expert strategy at the sentencing phase, and that
they had adapted the teaching expert strategy in response to District Court rulings
during the course of the trial.
In particular, the District Court found that it was not ineffective to not call
Doctor Hilton as a witness. Contrary to LeCroy’s assertions, the court found that
the attorneys were aware of the contents of Doctor Hilton’s report and alert to both
the mitigating and aggravating aspects of it. They had, the court found, made a
reasonable strategic judgment that the risk of aggravation outweighed the possible
benefits of mitigation, and this judgment was entitled to Strickland deference.
26 Case: 12-15132 Date Filed: 01/15/2014 Page: 27 of 54
The same considerations made it reasonable to not have Doctor Lisak
personally evaluate LeCroy for fear that such an evaluation would both expose
Doctor Lisak to damaging cross-examination and also trigger an evaluation of
LeCroy by a Government expert. Nor was it unreasonable for the defense team to
ultimately forego Doctor Lisak’s testimony—even as a teaching expert—once they
saw Doctor Medlin’s report and decided that they did not want to engage in a battle
of experts in front of the jury. The District Court found that these decisions were
reasonable strategic judgments made on the basis of a thorough investigation and
consideration of the lawyers’ options at trial.
Finally, the District Court concluded that Kearns was not ineffective in her
closing argument. Though LeCroy might wish that she made the connection
between his childhood abuse and his murder of Tiesler more vigorously or used
different language, the court concluded that Kearns met minimum constitutional
requirements by drawing the jury’s attention to evidence that LeCroy had been
abused and that this abuse played a role in his criminality as an adult.
Regarding prejudice, the District Court found that LeCroy had not been
prejudiced by his attorneys choices regarding expert mental-health testimony
because the testimony they elected not to offer was at least as aggravating as it was
mitigating, and that therefore there was no reasonable probability that its
27 Case: 12-15132 Date Filed: 01/15/2014 Page: 28 of 54
introduction would have persuaded the jury to reach a different verdict. Indeed, it
might have made the jury more certain that LeCroy deserved the death penalty.
Following the District Court’s denial of his § 2255 petition, LeCroy lodged
this appeal.
II.
In reviewing a district court denial of a § 2255 petition,we review the court’s
legal conclusions de novo and its factual findings for clear error. Devine v. United
States, 520 F.3d 1286, 1287 (11th Cir. 2008) (per curiam). “A claim of ineffective
assistance of counsel is a mixed question of law and fact that we review de novo.”
Id. We give substantial deference to the factfinder on credibility determinations.
Id. We may affirm on any ground supported by the record. Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).
Claims of ineffective assistance of counsel require the petitioner to show
both that his attorneys’ performance was deficient and that their deficient
performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. In evaluating performance, “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690, 104 S. Ct. at 2066. It is petitioner’s burden to
“establish that counsel preformed outside the wide range of reasonable
professional assistance” by making “errors so serious that [counsel] failed to
28 Case: 12-15132 Date Filed: 01/15/2014 Page: 29 of 54
function as the kind of counsel guaranteed by the Sixth Amendment.” Butcher v.
United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (citing Strickland, 466 U.S. at
687–89, 104 S. Ct. at 2064–65). Showing prejudice requires petitioner to establish
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068. “The prejudice prong requires a petitioner to demonstrate that seriously
deficient performance of his attorney prejudiced the defense.” Butcher, 368 F.3d
at 1293 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).
Where, as here, the petitioner challenges the scope of his attorneys’
investigation and the reasonableness of their strategic choices, a further word about
attorney performance is warranted. Strickland makes plain that a reviewing court’s
objective “is not to grade counsel’s performance.” 466 U.S. at 697, 104 S. Ct. at
2069. We do not measure counsel against what we imagine some hypothetical
“best” lawyer would do, in part to avoid “the distorting effects of hindsight” and in
part to avoid judicial interference with “the constitutionally protected
independence of counsel,” lest we “restrict the wide latitude counsel must have in
making tactical decisions.” Id. at 689, 104 S. Ct. at 2065. We instead “reconstruct
the circumstances of counsel’s challenged conduct” and “evaluate the conduct
from counsel’s perspective at the time.” Id.
29 Case: 12-15132 Date Filed: 01/15/2014 Page: 30 of 54
Underpinning Strickland, then, is the assumption that “[t]here are countless
ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.” Id. at
689–90, 104 S. Ct. at 2065–66. Crucially, Strickland permits attorneys to choose
between viable avenues of defense, and attorneys are not ineffective for making a
reasonable choice to take one avenue to the exclusion of another, or for selecting a
reasonable course without considering some other, equally reasonable course. “If a
defense lawyer pursued course A, it is immaterial that some other reasonable
courses of defense (that the lawyer did not think of at all) existed and that the
lawyer’s pursuit of course A was not a deliberate choice between course A, course
B, and so on. The lawyer’s strategy was course A. And, our inquiry is limited to
whether that strategy, that is, course A, might have been a reasonable one.”
Chandler v. United States, 218 F.3d 1305, 1315 at n.16 (11th Cir. 2000). With
these standards in mind, we turn to LeCroy’s specific claims in this case.
III.
LeCroy makes three allegations of ineffective assistance of counsel on
appeal: (1) that his attorneys failed to investigate mental health mitigation evidence
and then present it during the sentencing phase of the trial; (2) that his attorneys
failed to object to jury instructions on the issue of LeCroy’s future dangerousness
and escape risk; and (3) that his attorneys failed to request a jury instruction that
30 Case: 12-15132 Date Filed: 01/15/2014 Page: 31 of 54
the balancing of aggravating and mitigating factors be conducted according to the
reasonable doubt standard. See Pet’r’s Br. at v.13 Applying Strickland’s deferential
lens, we examine each claim in turn.
LeCroy claims that his lawyers’ performance was constitutionally deficient
because they failed “to investigate and present mental health evidence” at the
sentencing phase of his trial. Pet’r’s Br. at 23. There are two variants of this
claim: one is that the attorneys failed to meet with Doctor Hilton to discuss his
report on LeCroy’s mental health and subsequently failed to call him as a witness.
Had they done so, the jury would have heard mitigating testimony about how
LeCroy’s mental health issues contributed to the crime. The second variant is that
the attorneys failed to implement their preferred strategy of calling Doctor Lisak as
a teaching expert, both because they unreasonably abandoned calling Doctor Lisak
as a witness in the face of anticipated rebuttal testimony from Doctor Medlin and
because lawyers Mendelsohn and Kearns miscommunicated during their closing
arguments and failed to make the mitigating argument each expected the other to
make.
1.
13 Note 1, supra, sets out the ineffective assistance claims as contained in the certificate of appealability the District Court issued. 31 Case: 12-15132 Date Filed: 01/15/2014 Page: 32 of 54
LeCroy’s first argument is that his lawyers performed incompetently
because they did not have a face-to-face conversation with Doctor Hilton regarding
his written psychiatric report. LeCroy concedes that his attorneys “had done their
job in conducting an extensive investigation of Defendant’s background,” Pet’r’s
Br. at 26, but argues that “[i]nstead of working with Dr. Hilton to appreciate the
full context of his conclusions, counsel merely jettisoned his report,” id. at 28.
LeCroy argues that his attorneys could not possibly have made an informed
strategic choice regarding a mental health defense because, by not meeting with
Doctor Hilton, the lawyers prematurely closed this particular line of
investigation.14 LeCroy believes his defense was prejudiced because his attorneys
would have called Doctor Hilton to testify at trial had they only met with him, and
Doctor Hilton’s testimony would in turn have introduced the jury to such powerful
mitigation evidence that the verdict might have been different.
14 The only authority LeCroy cites on this point is Holsomback v. White, 133 F.3d 1382, 1386–89 (11th Cir. 1998), but that case involved distinguishable facts. The defendant in Holsomback was accused of sexually abusing his son, and he asked his defense lawyer to interview the family doctor—who had examined the son—so that the lawyer might uncover medical records showing no physical signs of abuse. Id. at 1385. The defense lawyer did not contact the doctor or request the doctor’s records, and so this court said the lawyer had been ineffective for failing “to conduct any investigation into the conceded lack of medical evidence, including [the lawyer’s] failure to consult with any physicians concerning the significance of the lack of medical evidence in the case.” Id. at 1386 (emphasis added). Plainly, LeCroy’s situation is not like the defendant’s in Holsomback, where the lawyer made no effort at all to investigate medical evidence. Indeed, even LeCroy concedes that his lawyers “had done their job in conducting an extensive investigation of the Defendant’s background.” Pet’r’s Br. at 26. Holsomback therefore has nothing to say about a case like LeCroy’s, where the attorneys commissioned a report by a medical expert and then, having reviewed its contents, made a tactical decision not to use it. 32 Case: 12-15132 Date Filed: 01/15/2014 Page: 33 of 54
We do not agree with LeCroy that his attorneys performed ineffectively by
not meeting in person with Doctor Hilton after reviewing his reports. Even
LeCroy concedes that Doctor Hilton’s written report was “extensive,” Pet’r’s Br. at
27, and it is plain that the defense attorneys reviewed and understood the contents
of the report. See, e.g., Collateral Tr. Vol. II at 264 (Mendelsohn responding to
questions about the potentially damaging contents of Doctor Hilton’s report). The
District Court was right to conclude that Doctor Hilton’s report “was so detailed
that a reasonable attorney did not need to speak with him to understand his
diagnoses and the fact that he thought ‘magical thinking’ was a cause of the event.”
LeCroy, 2012 WL 1114238, at *52. Nor does LeCroy identify any “red flags” in
Doctor Hilton’s reports that might have prompted a reasonable attorney to initiate a
meeting or explore other avenues of investigation. Cf. Ferrell v. Hall, 640 F.3d
1199, 1233–34 (11th Cir. 2011). LeCroy’s argument seems to be, instead, that
attorneys are per se ineffective if they commission and review an expert report
without taking the additional step of meeting in person with the report’s author.
That is not what Strickland requires. LeCroy’s attorneys made a thorough
investigation of his background and employed an expert to evaluate the viability of
a mental health defense, and were not required to sit down with Doctor Hilton to
rehash conclusions that were already plain from the written report. See Bobby v.
Van Hook, 558 U.S. 4, 11–12, 130 S. Ct. 13, 19, 175 L. Ed. 2d 255 (2009)
33 Case: 12-15132 Date Filed: 01/15/2014 Page: 34 of 54
(explaining that Strickland does not require attorneys to “dig deeper” when
substantial mitigation evidence is already in hand following a reasonably thorough
investigation); Reed v. Sec’y, Florida Dep’t of Corrs., 593 F.3d 1217, 1242–43
(11th Cir. 2010) (same).
But even supposing LeCroy’s attorneys performed ineffectively when they
decided not to meet with Doctor Hilton in person, that decision did not prejudice
LeCroy’s defense. LeCroy’s theory of prejudice is twofold: he argues first that by
failing to meet with Doctor Hilton the defense team made strategic decisions on the
basis of an incomplete understanding of Doctor Hilton’s findings, see Strickland
466 U.S. at 690–91, 104 S. Ct. at 2066 (“[S]trategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”), and second that
if the attorneys had met with Doctor Hilton they would have also called him as a
witness at trial, thereby exposing the jury to powerful mitigation evidence
concerning the role LeCroy’s mental illnesses played in the crime. But the record
does not support either theory of prejudice.
Although LeCroy writes vaguely that through an in-person meeting the
lawyers could have “explored with [Doctor Hilton] the full ramifications of the
diagnoses he found” and “appreciate the full context of his conclusions,” Pet’r’s
34 Case: 12-15132 Date Filed: 01/15/2014 Page: 35 of 54
Br. at 27–28, 15 LeCroy never says what, exactly, was left to explore or appreciate
that was not already in Doctor Hilton’s report. LeCroy puts great emphasis on
Doctor Hilton’s testimony at the § 2255 hearing that “mental illness played a
‘direct role’ in the crime and that the murder would not have ‘occurred but for’ the
mental illnesses [Hilton] had diagnosed.” Pet’r’s Br. at 27; see also Collateral Tr.
Vol. II at 238. But one need not be a mental health expert to comprehend from the
written report that Doctor Hilton attributed the crime to LeCroy’s mental health
problems. Indeed, the report plainly lays out Doctor Hilton’s theory that LeCroy’s
“unusual and unexplainable encounter with Ms. Tiesler” in the woods “inflamed
some of his unresolved issues relative to his sexual abuse” by Tinkerbell, and that
“[h]is schizotypal tendencies of magical thinking and his previous experiences in
witchcraft led him to believe that Ms. Tiesler was indeed his former babysitter
(Tinkerbell), that witchcraft was involved and that a spell needed to be broken.”
Hilton Report at 17. Contrary to LeCroy’s assertions, then, there was nothing
15 LeCroy is inconsistent in his briefing regarding the ability of a layperson to understand psychiatric diagnoses. He argues initially that his attorneys could not “appreciate the full context of [Hilton’s] conclusions” without a face-to-face meeting, Pet’r’s Br. at 27–28, but later argues in his reply brief that the attorneys had an unreasonable fear of letting the jury hear a diagnosis of anti-social personality disorder because LeCroy’s “prior criminal acts” represented “evidence in and of itself of an anti-social personality, which would have hardly been exacerbated by this unremarkable conclusion by mental health experts.” Pet’r’s Reply Br. at 12. LeCroy is trying to have it both ways: a jury of laypeople would allegedly have found a diagnosis of anti-social personality disorder unremarkable because the evidence for it was so obvious, but his hapless defense team needed a sit-down meeting with Doctor Hilton so their expert could convey verbally what had already been conveyed in writing. 35 Case: 12-15132 Date Filed: 01/15/2014 Page: 36 of 54
more to be learned by meeting face-to-face with Doctor Hilton, and so the
attorneys’ failure to do so could not have prejudiced LeCroy’s defense.
Nor was the defense prejudiced by the decision not to call Doctor Hilton to
testify at trial, a decision LeCroy says is “at the core of the Defendant’s claim,
because the decision not to call [Hilton] was made without full knowledge of the
consequences of this decision, that is without knowledge of the full extent of Dr.
Hilton’s testimony.” Pet’r’s Reply Br. at 13 n.1. It is important to note at the
outset that the decision not to call Doctor Hilton as a witness was itself a strategic
one deserving Strickland deference: indeed, the defense team never intended to use
Doctor Hilton as a witness at trial. He was, Mendelsohn explained, a “test run” to
“see what would happen”: “[W]e were going to see what results he came back with
and then with that information in hand, proceed with the rest of the case.”
Collateral Tr. Vol. III at 265.
A “test run” was strategically important because the defense team knew that
offering the testimony of a mental health expert who had evaluated LeCroy would
trigger the Government’s reciprocal rights under Rule 12.2 to review the defense
team’s expert reports and to have LeCroy evaluated by an expert of the
Government’s choosing. Avoiding such an evaluation was a fundamental strategic
goal of the defense team: as Kish explained, “[A]n evaluation by a government
expert would have resulted in very harmful information. Real frankly, we didn’t
36 Case: 12-15132 Date Filed: 01/15/2014 Page: 37 of 54
trust the government experts. And we felt that when the government would have
such information, it would make it exceptionally difficult to raise the parts of
[LeCroy’s] background that we thought were worthy of presenting to the jury
when they had to make their decision . . . during the sentencing phase of the case.”
Collateral Tr. Vol. I at 45–46.
Contrary to LeCroy’s assertion, then, the decision not to use Doctor Hilton
as a witness at trial was imminently reasonable: it allowed the defense team to get
a complete picture of LeCroy’s background and mental health without having
LeCroy evaluated by their preferred expert witness, Doctor Lisak. Doctor Lisak
would in turn be able to testify as a “teaching witness” at trial—connecting
childhood sexual abuse to criminal acts in general terms—without being subject to
damaging cross-examination by the Government about LeCroy’s first-hand
account of the crime. This strategy had the added virtue of not undercutting the
jurisdictional defense the attorneys planned for the guilt phase of trial: an expert
who evaluated LeCroy would be cross-examined about the substantial planning
and premeditation preceding Tiesler’s murder, whereas a “teaching witness” would
not.
Doctor Hilton’s actual findings only underscore the reasonableness of the
attorneys’ decision not to use him as a witness. The attorneys reviewed Doctor
Hilton’s report and recognized correctly that the results were a mixed bag for the
37 Case: 12-15132 Date Filed: 01/15/2014 Page: 38 of 54
defense. “There were parts of Dr. Hilton’s report that would have been very
helpful,” Kearns testified. “The problem was that there was the risk that the actual
diagnosis would not be helpful,” Collateral Tr. Vol. I. at 104–05, not to mention
Hilton’s vivid reconstruction of the crime and the report’s baseline inconsistency
with the botched-burglary defense.
The first problem was LeCroy’s graphic and disturbing play-by-play review
of the murder. An expert, like Doctor Hilton, who had evaluated LeCroy and
learned the first-hand details of the offense would have been subject to lurid cross-
examination about the brutality of the murder and the extent to which Tiesler
suffered in the minutes before her death. At the § 2255 evidentiary hearing, the
Government’s attorney illustrated what this might have looked like during his
cross-examination of Doctor Hilton:
Q: Now, the defendant told you that when Ms. Tiesler first came into the house, that he was waiting for her. And you know that she had no idea he was there; correct? A: Yes. Q: And that he came up behind her and he hit her in the back of the head with the shotgun; right? A: Yes. ... Q: Then he told you that he tied her hands behind her back; correct? A: Yes. ... Q: And when her hands are tied behind her back, she’s virtually defenseless; correct? A: Yes.
38 Case: 12-15132 Date Filed: 01/15/2014 Page: 39 of 54
Q: She can’t fight her attacker, she can’t do anything, correct? A: Yes. Q: And then the defendant told you that he sexually assaulted her, correct? A: Yes. Q: She couldn’t fight that off, could she? A: No. Q: And then defendant told you that he took a wire, a cord of some sort, correct? A: Yes. Q: He wrapped it around her neck, correct? A: Yes. Q: She was still conscious and knowledgeable of what’s going on, correct? A: Yes. Q: She can’t fight him off because her hands are tied behind her back and he’s a six-foot-six almost 300-pound man, correct? A: Yes. Q: And he started choking her, correct? A: That’s correct. Q: And she would be fully aware of the fact that she’s being strangled to death, wouldn’t she? A: Yes. Q: But that wasn’t enough. He choked her to the point where she was gasping for air, according to him correct? A: Yes. Q: Choked her to the point where she defecated on herself, correct? A: Yes. Q: She couldn’t get her hands from behind her neck to try to get the cord off, could she? A: No, she— Q: She was being strangled to death, right? A: Yes. Q: And she would have known that, correct? A: Yes. ...
39 Case: 12-15132 Date Filed: 01/15/2014 Page: 40 of 54
Q: So since she wasn’t dying from the choking, he decided to slash her throat, correct? A: Well, he stopped choking her, gave her the option of undoing the spell, and then when she still—I think at this point I think she was unconscious or near unconscious, that’s when he stabbed her in the back or— Q: He slashed her throat first, didn’t he? A: He slashed her throat and then— Q: So if she still was conscious—and he described how he did it, right? A: Yes. Q: Grabbed her hair, pulled her neck up so the throat would be fully exposed, came to her with a knife and just slit the knife from, basically from ear to ear, right? A: That’s correct. Q: And you know that the crime scene investigation corroborates that, correct? A: Yes. Q: And if she was still conscious when that happened, then she would know that she was about to die, right? A: Yes. Q: But she didn’t die immediately, even after her throat was slashed, according to the defendant, is that correct? A: That’s correct. Q: So not only did he choke her to the point that she can’t breathe, slashed her throat, but then he stabbed her repeatedly in the back, right? A: Yes. Q: And if you had testified at the trial, you might have been subject to exactly this kind of examination about what the defendant said that he did to this victim, correct? A: Yes.
Collateral Tr. Vol. II at 239–43 (emphasis added). We cannot fault LeCroy’s
defense attorneys for wanting to avoid this kind of testimony, even if LeCroy is
right, as an analytical matter, that the crime scene and autopsy reports had already
introduced the jury to many of the same details. LeCroy attempts to take this point 40 Case: 12-15132 Date Filed: 01/15/2014 Page: 41 of 54
a step forward and argue that the first-hand recollection of the crime was “no
worse than the evidence that the defense was already facing,” Pet’r’s Reply Br. at
11, but that is at least debatable: certainly a reasonable attorney could believe that
hearing this sort of narrative testimony, with its emphasis on the victim’s
awareness of her suffering, might inflame the jury in a way that a clinical coroner’s
report would not. Strickland deference is especially important in this setting
because defense attorneys are in the courtroom and able to see the jury and make
first-hand assessments of how jurors might react to testimony. Appellate judges,
by contrast, review only a cold record months or sometimes years after the events
at trial. LeCroy’s attorneys made a tactical choice that the mitigating value of
expert mental health testimony would be outweighed by the aggravating
information the Government would emphasize, and on this record we cannot say
their choice was unreasonable for Strickland purposes.
A second problem with Doctor Hilton’s findings was that they wholly
undercut the botched-burglary defense LeCroy had put on in the guilt phase of his
trial. The defense had argued that LeCroy panicked when Tiesler interrupted him
midway through the burglary of her home and killed her impulsively, in what they
called “an irrational criminal act in the middle of a burglary.” Testimony from an
expert like Doctor Hilton would have shown the jury that none of that was true and
that the defense lawyers had always known it to be untrue: LeCroy instead had
41 Case: 12-15132 Date Filed: 01/15/2014 Page: 42 of 54
sought Tiesler out specifically and laid in wait for her to come home. See Hilton
Report at 10–11. This revelation might have seriously undercut the defense
lawyers’ credibility in the eyes of the jury for the remainder of trial.
Third and finally, the defense team considered Doctor Hilton’s clinical
diagnoses—that LeCroy suffered from borderline personality disorder and anti-
social personality disorder—“not helpful,” to use Kearns’ term. Collateral Tr. Vol.
I at 104–05. Doctor Hilton reported that LeCroy had “homicidal ideations toward
a few of the other inmates” over what LeCroy called “trivial things.” Hilton
Report at 12. At the § 2255 hearing, Hilton testified on cross-examination that he
believed LeCroy would represent a danger if he ever escaped custody, that his
future dangerousness might extend to others incarcerated with him, and that—
because LeCroy understands now that Tiesler was not Tinkerbell—he might
mistake a different woman for Tinkerbell in the future and kill again. See
Collateral Tr. Vol. II at 225–27.
Any of these considerations, standing alone, would give a good attorney
pause. Cumulatively, they present an ironclad case for the reasonableness of the
defense team’s decision not to call Doctor Hilton as a witness. Mendelsohn’s
testimony summarized the attorneys’ thinking before trial:
Q. So Dr. Hilton’s report wasn’t going to give you an affirmative defense that you could use against the charges, correct? A. Yes. 42 Case: 12-15132 Date Filed: 01/15/2014 Page: 43 of 54
Q. And he was going to give you the negative assessments that the defendant was suffering from antisocial personality disorder and borderline personality disorders, correct? A. Yes. Q. And he was going to give you this very detailed recitation of the facts of this very horrible crime, correct? A. That’s right. Q. And none of that you wanted to present to the jury in your either presentation of a defense in the guilt phase or your presentation in the penalty phase, correct? A. Yes. Q. And that was a judgment that you, the four attorneys that were involved in the case reached collectively. Is that fair? A. That is fair.
Collateral Tr. Vol. II at 264. We agree with the District Court that this strategic
judgment was a reasonable one.
In any event, the decision not to call Doctor Hilton as a witness did not
prejudice the defense because—as the District Court put it—“LeCroy’s mental-
illness evidence was the ultimate double-edged sword.” LeCroy, 2012 WL
1114238 at *68. For one thing, none of the evidence went to LeCroy’s
competency or presented an affirmative defense; LeCroy understood that killing
Tiesler was wrong, and he did it anyway. Collateral Tr. Vol. II at 264. Second,
“the testimony that could have been presented was just as likely to have resulted in
aggravation against rather than mitigation for” LeCroy. See Reed, 593 F.3d at
1238 (citation omitted). Doctor Hilton’s testimony would have underscored all of 43 Case: 12-15132 Date Filed: 01/15/2014 Page: 44 of 54
the Government’s aggravating factors: that LeCroy targeted Tiesler, that he laid in
wait for her inside her home, and that he committed the murder in an especially
heinous manner. Doctor Hilton found, moreover, that LeCroy could be a danger to
others in the future, either to fellow inmates or to the public if he ever escaped—
and LeCroy had tried to escape from prison before. Third, Doctor Hilton’s
testimony would have undercut the credibility of the defense lawyers in the eyes of
the jury once it became clear that Doctor Hilton’s conclusions were orthogonal to
the botched-burglary defense. Considered in total, then, the District Court was
correct in concluding that there was no reasonable probability that the jury would
have reached a different sentence with Doctor Hilton’s testimony before them.
Indeed, Doctor Hilton’s testimony might have made things worse. See LeCroy,
2012 WL 1114238 at *68–69.
2.
LeCroy’s second argument is that—whatever the merits of the botched-
burglary defense and teaching-witness gambit as strategic questions—his attorneys
failed to actually implement their strategy at trial. Had the attorneys pulled off the
teaching-expert plan, LeCroy allows that “there might, but only might, be some
merit” to the District Court’s conclusion that the attorneys were not ineffective.
Pet’r’s Reply Br. at 1. But LeCroy says that “simply did not happen.” Id. Instead,
LeCroy says his attorneys unreasonably decided not to call their teaching expert,
44 Case: 12-15132 Date Filed: 01/15/2014 Page: 45 of 54
Doctor Lisak, because of an irrational fear of the Government’s rebuttal witness,
and then compounded the error in their closing argument by failing to adequately
connect LeCroy’s sexual abuse to the crime. See id. at 1–4. On this account,
LeCroy received at best only a fragmentary mental health defense at trial: “What
was missing was any connection of the sexual abuse to Defendant’s crime, which
could only be provided by expert testimony, which counsel unreasonably
abandoned.” Id. at 4–5.
We do not agree that LeCroy’s attorneys were incompetent in their
execution of their trial strategy. For purposes of our discussion, we divide
LeCroy’s claim on this point into three alleged defects in his attorneys’
representation: (1) that they ought to have had Doctor Lisak personally evaluate
LeCroy; (2) that they ought to have called Doctor Lisak as a witness at trial; and
(3) that they ought to have done a better job in their closing argument connecting
LeCroy’s childhood sexual abuse to Tiesler’s murder. We conclude that none of
these claims warrant § 2255 relief.
First, all the problems that would have attended calling Doctor Hilton as a
witness at trial, discussed in Part III.A.1, supra, applied with equal force to any
expert who evaluated LeCroy. As Kearns explained at the § 2255 hearing, “[I]f we
had Dr. Lisak examine Mr. LeCroy and then intended to use Dr. Lisak as a witness,
then we would have to make Bill LeCroy available to the government and their
45 Case: 12-15132 Date Filed: 01/15/2014 Page: 46 of 54
expert for an evaluation,” Collateral Tr. Vol. I at 93, in addition to disclosing
Doctor Lisak’s findings to the Government. Id. at 113. Just as we do not think it
was unreasonable not to call Doctor Hilton as a witness, we do not think it was
unreasonable for the defense team to try and insulate their preferred teaching
expert from damaging cross examination or protect their client from a hostile
Government evaluation. These choices represented reasonable tactical decisions
by competent attorneys.
The decision not to call Doctor Lisak, even as a teaching expert, was also a
reasoned tactical decision on the defense team’s part. At the close of the guilt
phase and before the jury returned a verdict, the lawyers were provided a copy of
Doctor Medlin’s report, which she had prepared from examining LeCroy’s
documentary records from school, the military, and prison. In her report, Doctor
Medlin rejected out of hand the causal link between childhood sexual abuse and
violent criminality as an adult, and she further drew attention to LeCroy’s
inconsistent reporting of his abuse at the hands of Tinkerbell. Doctor Medlin
suggested that some inmates fabricate tales of abuse to garner sympathy in the
criminal justice system, and that such fabrication might explain why LeCroy
sometimes reported being abused and sometimes did not. At the § 2255 hearing,
Kearns explained “what was so threatening about Dr. Medlin’s report. It was the
complete apparent unwillingness to accept any impact of childhood sexual abuse
46 Case: 12-15132 Date Filed: 01/15/2014 Page: 47 of 54
on an adult man. I mean, it was more that she seemed—we seemed to have two
experts that were polar opposites, one [i.e., Lisak] that said this is a very damaging,
this trauma is very damaging and has very serious consequences, and then an
expert who seemed to be unwilling to accept it.” Collateral Tr. Vol. I at 125. Not
wanting to engage in a battle of the experts, and still fearful that calling Doctor
Lisak would trigger a Government evaluation,16 the defense elected not to call
Doctor Lisak and instead try to connect the abuse to the crime on their own in their
closing argument.
LeCroy contends that this decision was manifestly unreasonable because
Doctor Medlin’s report was of such poor quality that, had Doctor Lisak been called
to testify, he could have easily dismantled a report he told the attorneys was
“nonsense,” a “hatchet job by somebody who really didn’t know what she was
talking about.” See Pet’r’s Reply Br. at 14 (quoting Collateral Tr. Vol. I at 166).
But as Mendelsohn explained, the attorneys understood that they “weren’t dealing
with experts, we were dealing with lay people; and in the end it may just be a battle
of the experts. No matter how incredible she may be on an objective expert level,
16 Kearns noted that, at that point in trial, “if we used Dr. Lisak as a teaching expert without having evaluated Mr. LeCroy, we were running the risk of still having to make him available to the government for Dr. Medlin’s evaluation. . . . And this order put us in the worst possible position because then we had Bill LeCroy, our expert not having seen Bill LeCroy; and if that was countered by Dr. Medlin who had done an evaluation of Bill LeCroy, then clearly a jury would be more likely to believe the doctor who had actually evaluated him.” Collateral Tr. Vol. I at 112.
47 Case: 12-15132 Date Filed: 01/15/2014 Page: 48 of 54
you know, she could come off polished enough to a lay jury that we would end up
having her be believable.” Collateral Tr. Vol. II at 277–78. The District Court,
having seen Doctor Medlin testify at the § 2255 hearing, expressly found that “the
Defense’s concerns were real. Even though Dr. Lisak and Dr. Hilton disagree with
Dr. Medlin, her experience with sexual abuse perpetrators and citation of studies
may well have convinced a lay jury that LeCroy only admitted sexual abuse in
situations in which he wanted sympathy or benefits.” LeCroy, 2012 WL 1114238
at *55. We are especially hesitant to disturb this conclusion insofar as we give
special deference to the factfinder on questions of credibility. See Devine, 520
F.3d at 1287.
LeCroy also argues—with respect to both Doctor Hilton and Doctor Lisak—
that his attorneys were operating under an irrational fear of a Government
evaluation. LeCroy claims that his attorneys could have agreed to a Government
evaluation “and, if it turned out badly, still attempted the ‘teaching expert’ ploy.”
Pet’r’s Br. at 31. But without knowing what a Government evaluation would
show, LeCroy claims his attorneys could not have made an informed strategic
decision because they were operating “without knowledge of what the real stakes
were.” Id.
This argument misses the mark. First, it was not unreasonable for the
defense team to infer, based on Doctor Hilton’s evaluation, that an evaluation by a
48 Case: 12-15132 Date Filed: 01/15/2014 Page: 49 of 54
Government expert would come to similar—or worse—conclusions. Kearns
testified that she was “very fearful” of a Government evaluation “based on [her], at
that point in time, 30 years of experience doing criminal defense work,” during
which her experiences with Government psychiatric evaluations had “not been
good.” Collateral Tr. Vol. I at 94, 108, 110. Or, as Mendelsohn put it, “I don’t
have a lot of faith that the government experts would be coming out trying to help
Mr. LeCroy.” Collateral Tr. Vol. II at 269. LeCroy certainly offers no reason to
think that the lawyers’ judgment was unreasonable.
Second, and perhaps more importantly, LeCroy’s argument here inverts the
burden of proof, which on a § 2255 petition belongs to the petitioner. If LeCroy’s
claim is that a Government evaluation would have been less damaging than Doctor
Hilton’s evaluation—and that, accordingly, the defense team ought to have been
more willing to roll the dice and see what the Government would come up with—
then to carry that argument LeCroy would actually need to show that the
Government evaluation would be favorable. Otherwise, LeCroy is asking us to
disregard the burden of proof and speculate about what might have been, drawing
an inference in his favor that the record simply does not support. Here, where
LeCroy is either unwilling or unable to demonstrate that the Government’s
evaluation would in fact have been favorable—as opposed to conceivably being
favorable—he has failed to carry his burden in showing prejudice.
49 Case: 12-15132 Date Filed: 01/15/2014 Page: 50 of 54
Finally, LeCroy takes issue with his attorneys’ closing argument at the
sentencing phase, claiming they never adequately connected his childhood abuse to
the crime. This Court explained in Lawhorn v. Allen, 519 F.3d 1272 (11th Cir.
2008), that deficient performance in the closing-argument context can be shown by
“an attorney’s failure to use the closing argument to focus the jury’s attention on
his client’s character or any mitigating factors of the offender’s circumstances, and
by his failure to ask the jury to spare his client’s life.” Id. at 1295. Here, Kearns
indisputably asked the jury to show mercy and spare LeCroy’s life, so LeCroy’s
claim is that Kearns failed to “drive the point home regarding the effect of sexual
and other abuse suffered by the Defendant,” Pet’r’s Br. at 29–30, and that the link
she drew in her closing argument—that LeCroy’s self-esteem suffered as a
consequence of Tinkerbell’s abuse, and that this contributed to Tiesler’s murder—
was “hardly a compelling case for a sentence other than death.” Id. at 30.
But as the District Court correctly noted, LeCroy’s point here is not that Kearns
failed to draw the jury’s attention to the available mitigating evidence. Plainly, she
did that. His claim is, at best, that he wishes she had done it better. That does not
give rise to an ineffectiveness claim of the sort we found in Lawhorn. In that case,
we said an attorney had performed deficiently on closing where the attorney
waived his closing argument entirely “based on a complete misunderstanding of a
clear rule of law.” 519 F.3d at 1295–96. By contrast, Kearns in her closing
50 Case: 12-15132 Date Filed: 01/15/2014 Page: 51 of 54
argument reminded the jury that LeCroy had been abused and explained how it
affected him as an adult. She might have done more, but Strickland requires
competence, not perfection.
LeCroy’s second category of alleged ineffectiveness is his attorneys’ failure
to object to the District Court’s instruction at the conclusion of the sentencing
phase that the jury could consider the nonstatutory aggravating factor of future
dangerousness to the public if the jury found beyond a reasonable doubt that
defendant posed a “risk” of escape, as opposed to finding a “likelihood” of escape.
See Pet’r’s Br. at 42. The word “risk” is, LeCroy says, “so elastic and ill-defined
that it could include the mere possibility of an escape, no matter how fanciful.” Id.
at 43. By failing to object to this instruction, the attorneys allegedly failed to
perfect a meritorious legal issue on appeal.
We disagree. First, LeCroy’s attorneys were not ineffective in failing to
object to the court’s wording because the instruction did not misstate the law. We
have said that district courts have “broad discretion in formulating a jury charge so
long as the charge as a whole accurately reflects the law and facts,” United States
v. Turner, 871 F.2d 1574, 1578 (11th Cir. 1989) (citations omitted), and the jury
instruction at issue here was not an inaccurate statement of law. Rather than
inviting the jury to entertain a “fanciful” possibility of escape, as LeCroy suggests,
51 Case: 12-15132 Date Filed: 01/15/2014 Page: 52 of 54
Pet’r’s Br. at 43, the court instructed the jury that they could only consider
LeCroy’s future dangerousness “if each of you finds beyond a reasonable doubt
that Mr. LeCroy does pose a risk of escape.”
When we considered this instruction on direct appeal in LeCroy’s case, we
said:
“In light of LeCroy’s history of attempted escapes and the judge’s clear instructions to the jury requiring that it find a risk of escape ‘beyond a reasonable doubt,’ we cannot conclude that there is a reasonable probability that the different standard urged by LeCroy would have resulted in a different outcome. Moreover, the jury found every other aggravating factor alleged by the government, and such findings are amply supported by the record.”
LeCroy, 441 F.3d at 931. LeCroy is right that, because trial counsel did not
object to this instruction, we conducted only plain error review. But he
offers no reason to suggest that the analysis would change under an abuse-
of-discretion standard, and indeed cites no authority at all for the proposition
that “likelihood” was the magic, mandatory word.17 Our reasoning in
LeCroy’s direct appeal also suggests that even if counsel had objected to the
instruction, we would not have reversed his conviction given that “the jury
found every other aggravating factor alleged by the government.” Id.
17 The case that LeCroy does cite on this point is not persuasive. United States v. Allen, 247 F.3d 741, 788 (8th Cir. 2000), rev’d on other grounds, 536 U.S. 953 (2002), does not help him, because there the Eighth Circuit said that “[a] defendant in prison for life is still a risk to prison officials and to other inmates, and even though a life sentence without the possibility of parole greatly reduces the future danger to society from that particular defendant, there is still a chance that the defendant might escape from prison or receive a pardon or commutation of sentence.” 52 Case: 12-15132 Date Filed: 01/15/2014 Page: 53 of 54
LeCroy, therefore, cannot show prejudice from his attorneys’ failure to
object.
LeCroy’s final claim is that his attorneys were ineffective for failing to
request an instruction that the jury, in conducting its balancing of aggravating and
mitigating factors, was required to find beyond a reasonable doubt that the
aggravating factors outweighed the mitigating ones. LeCroy’s theory is that, under
cases like Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), any fact essential to the imposition of a particular sentence must be
found beyond a reasonable doubt, and that the ultimate balance between
aggravating and mitigating sentencing factors is effectively a factual question.
Pet’r’s Br. at 44–45. A competent attorney would, LeCroy says, have asked for
such a jury instruction.
The problem with this argument is that it invites us to evaluate counsel’s
conduct retrospectively, rather than at the time of trial. Contra Strickland, 466
U.S. at 689, 104 S. Ct. at 2065. At the time of LeCroy’s trial in 2004, no court had
found that the jury had to be instructed that it conduct its balancing inquiry against
a reasonable doubt standard. To be sure, subsequent cases advanced the possibility
that Apprendi and the like applied to a jury’s balancing deliberations, see, e.g.,
53 Case: 12-15132 Date Filed: 01/15/2014 Page: 54 of 54
United States v. Gabrion, 648 F.3d 307, 325–29 (6th Cir. 2011), aff’d en banc, 719
F.3d 511 (6th Cir. 2013), but LeCroy points to no authority that would have given
LeCroy’s attorneys notice at the time of trial that such an instruction was even
arguably required. 18 Even supposing LeCroy’s argument had merit, then, he
directs it to the wrong target. Strickland is concerned with prevailing professional
norms at the time of trial, not with subsequent developments in the law.
IV.
For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
18 Indeed, the District Court surveyed available cases and concluded that the opinions available to LeCroy’s attorneys at the time of trial “would have [led] a reasonable attorney to believe that Ring and its progeny would not apply to” balancing instructions. See LeCroy, 2012 WL 1114238 at *63–65 (emphasis added). 54
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