[DO NOT PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                            FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                             ________________________               JULY 28, 2011
                                                                     JOHN LEY
                                    No. 10-14921                      CLERK
                              ________________________

                       D.C. Docket No. 2:06-cv-00357-CEH-DNF


THOMAS LEE GUDINAS,


llllllllllllllllll                                          Petitioner-Appellant,

                                         versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                            Respondents-Appellees.


                             ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________
                                    (July 28, 2011)

Before CARNES, HULL, AND MARTIN, Circuit Judges,

PER CURIAM:
      Thomas Gudinas, a Florida prisoner on death row, appeals from the district

court's denial of his petition for a writ of habeas corpus, brought pursuant to 28

U.S.C. § 2254. This Court granted Gudinas a certificate of appealability on one

issue: whether he received effective assistance of counsel at the penalty phase of

his capital trial. After carefully reviewing the record and having the benefit of oral

argument, we affirm the district court’s denial of Gudinas’s petition.

                            I. PROCEDURAL HISTORY

      Gudinas was indicted on July 15, 1994, by a grand jury in Orange County,

Florida for: one count of attempted burglary with an assault of Rachelle Smith

(count I); one count of attempted sexual battery of Rachelle Smith (count II); two

counts of sexual battery of Michelle McGrath (counts III and IV); and, one count

of murder in the first degree of Michelle McGrath (count V). The jury trial

commenced on May 1, 1995, before Belvin Perry, Jr., Circuit Judge.1 The

evidence at trial indicated that Gudinas attempted to break into Rachelle Smith’s

car and sexually assault her in a parking lot outside a nightclub in downtown

Orlando around 2:00 a.m. on May 24, 1994. Smith managed to get away. But a

short time later, Gudinas sexually assaulted and killed Michelle McGrath.

McGrath’s partially naked body was discovered in an alley near the parking lot

      1
          Judge Perry also presided over Gudinas’s state postconviction proceedings.

                                             2
where Gudinas had assaulted Smith. Overwhelming evidence pointed to Gudinas

as McGrath’s killer. Further, a medical examiner testified to evidence of a

gruesome sexual assault and that McGrath died from a “brain hemorrhage

resulting from blunt force injuries to the head,” likely caused by a “stomping-type

blow from a boot.” Gudinas v. State, 

, 957 (Fla. 1997) (Gudinas I).

The jury returned guilty verdicts on all counts. 

penalty phase, the state introduced evidence of Gudinas’s prior

felony convictions, including convictions for “burglary of an automobile; assault;

theft; assault with intent to rape; indecent assault and battery; and assault and

battery.” 

Gudinas presented testimony from his mother, sister, and two

experts during the penalty phase. 

Gudinas’s mother, Karen

Goldwaithe, testified that she had a difficult pregnancy and that Gudinas suffered

from health problems as an infant. 

She reported that Gudinas had

difficulty controlling his temper from an early age and was first evaluated at six

years of age. 

sought assistance from the

Massachusetts Division of Youth Services (DYS) and Gudinas had 105

placements through that agency over the next several years. 

repeatedly

recommended that Gudinas receive long-term residential treatment, but he never

got any. 

obtained his GED, but only completed his formal

                                          3
education to the fourth grade. 

testified that Gudinas

began abusing drugs and alcohol at an early age. 

Michelle, testified about their father’s physical abuse

towards Gudinas, including for example, the father’s intentionally burning

Gudinas’s hand on a stove and making him stand outside in his underwear holding

a sign saying “I will not wet the 

. Although Michelle

denied ever having any sexual contact with Gudinas, the state called a police

officer in rebuttal to testify that she had reported Gudinas once attempted to

sexually assault her. 

presented the testimony of a neuropsychologist, Dr. James

Upson, and a physician and pharmacologist, Dr. James O’Brian. 

Dr. Upson concluded that Gudinas was “seriously emotionally disturbed at the

time of the murder.” 

Further, Dr. Upson testified that his

psychological testing of Gudinas showed he had “strong underlying emotional

deficiencies,” was impulsive, and sexually confused. 

Dr.

O’Brian, Gudinas was unable to control his impulses in an unstructured

environment. 

Gudinas’s self report of alcohol and marijuana

intoxication in combination with his underlying psychological make up, Dr. Upson




                                          4
concluded that Gudinas’s ability to conform his conduct to the requirements of law

was substantially impaired. 

       The jury recommended a death sentence by a vote of ten to two, and the trial

court imposed a death sentence. 

court found three aggravating

circumstances, one statutory mitigating circumstance, and several non-statutory

mitigating circumstances which it gave very little weight.2

       The Florida Supreme Court affirmed Gudinas’s convictions and sentences

on direct appeal. Gudinas I, 

, 968. With respect to his death

sentence, the Court rejected Gudinas’s argument that the trial court should have


       2
          The Florida Supreme Court summarized the trial court’s findings regarding
aggravating and mitigating circumstances as follows:

       The trial court found the following statutory aggravators: (1) the defendant had been
       convicted of a prior violent felony, section 921.141(5)(b), Fla.Stat. (1995); (2) the
       murder was committed during the commission of a sexual battery, section
       921.141(5)(d); and (3) the murder was especially heinous, atrocious, or cruel, section
       921.141(5)(h). The court found one statutory mitigator: the defendant committed the
       murder while under the influence of an extreme mental or emotional disturbance,
       section 921.141(6)(b). The court found the following nonstatutory mitigating factors
       and accorded them very little weight: (1) defendant had consumed cannabis and
       alcohol the evening of the homicide; (2) defendant had the capacity to be
       rehabilitated; (3) defendant's behavior at trial was acceptable; (4) defendant had an
       IQ of 85; (5) defendant was religious and believed in God; (6) defendant's father
       dressed as a transvestite; (7) defendant suffered from personality disorders; (8)
       defendant was developmentally impaired as a child; (9) defendant was a caring son
       to his mother; (10) defendant was an abused child; (11) defendant suffered from
       attention deficit disorder as a child; and (12) defendant was diagnosed as sexually
       disturbed as a child.

Gudinas 

n.7.

                                                 5
recognized his age of twenty at the time of the offense as mitigating. 

The Supreme Court denied certiorari. Gudinas v. Florida, 

, 

(1997).

       Gudinas filed his first Fla. R. Crim. P. 3.850 motion on June 5, 1998, which

he subsequently amended twice.3 An evidentiary hearing was held on a limited

number of claims, including Gudinas’s assertion that he was denied the effective

assistance of counsel during his penalty phase. The trial court denied all of

Gudinas’s claims in a detailed written order, finding that Gudinas failed to show

either deficient performance or prejudice with respect to his penalty phase

ineffective assistance of counsel claim.

       Gudinas appealed the trial court’s denial of postconviction relief and also

filed a petition for writ of habeas corpus.4 See Gudinas v. Florida, 

, 1099 (Fla. 2002) (Gudinas II). After correctly identifying Strickland v.

Washington, 

, 

(1984), as the relevant standard, the

Florida Supreme Court carefully evaluated every aspect of Gudinas’s penalty


       3
          Gudinas subsequently filed a second state postconviction motion following the
Supreme Court’s decision in Ring v. Arizona, 

, 609, 

, 2443 (2002)
(holding that a sentencing judge, sitting without a jury, may not find an aggravating circumstance
necessary for the imposition of the death penalty). The constitutionality of Florida’s death
penalty scheme under Ring is beyond the scope of our certificate of appealability.
       4
          The claims in Gudinas’s state habeas petition, described in the District Court’s Order
are not relevant to the COA issue.

                                                6
phase ineffective assistance of counsel claim, and concluded that Gudinas had not

shown his counsel’s performance was deficient or prejudicial. See 

      Gudinas timely filed his federal petition on October 15, 2002, which he

subsequently amended. After briefing by the parties, the District Court entered a

detailed 141-page order denying all of Gudinas’s claims. The District Court

correctly identified the applicable law from AEDPA and Strickland and carefully

analyzed each of Gudinas’s claims. With respect to Gudinas’s ineffective

assistance of penalty phase counsel, the District Court concluded:

      Based upon a review of the State court record, the Court does not
      conclude that counsels’ actions were not reasonable considering all the
      circumstances. 

. The record supports that the
      defense counsel walked a fine line with revealing enough information
      about Gudinas’ past institutional history to demonstrate that Gudinas
      was seriously emotionally disturbed, without portraying Gudinas as
      incapable of rehabilitation. Significantly, the trial court found the
      statutory mitigator—that Gudinas was under “the influence of an
      extreme mental or emotional disturbance” at the time of the murder, as
      well as the nonstatu[t]ory mitigator - - that Gudinas “has capacity to be
      rehabilitated.” [F]urther, if counsel had called Gudinas’ aunt [Ellen
      Evans] to testify, counsel could not have offered the testimony of
      Gudinas’ mother, since the aunt’s testimony was especially critical of
      and damaging to the mother's character. . . .

             Even if counsel is deemed deficient on any or all of the grounds,
      the Court finds that "[t]he aggravating circumstances of this case were
      utterly overwhelming," Strickland at 2071, and Petitioner can not show
      prejudice. There is no reasonable probability, based on the totality of the
      circumstances, that the mitigators would have outweighed the
      aggravators and resulted in a sentence other than that which was

                                          7
       recommended by a 10-2 margin. Petitioner’s argument that the jury
       would have recommended life imprisonment is no more than mere
       speculation.

              Consequently, the Court finds that Petitioner has not made the
       required showing of either deficient performance or sufficient prejudice
       to sustain a finding that counsel was ineffective, and the Court finds that
       Petitioner's sentencing proceeding was not fundamentally unfair.5

                                       II. DISCUSSION

       “When examining a district court's denial of a § 2254 habeas petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Williams v. Allen, 

, 1336 (11th Cir. 2008)

(quotation marks omitted). “An ineffective assistance of counsel claim is a mixed

question of law and fact subject to de novo review.” 

omitted)

But we are “highly deferential” to the state court’s decision on the merits of a

claim. Cullen v. Pinholster, ---U.S.---, 

, 1398 (2011); Harrington

v. Richter, ---U.S.---, 

, 786 (2011). If a state court has adjudicated

the merits of a claim, we may not grant habeas relief unless the state court’s

       5
           Although it does not alter our ultimate conclusion in this case, we note that the District
Court erred in finding that part of Gudinas’s ineffective assistance of counsel claim was
procedurally barred. Gudinas alleged that his trial counsel were ineffective, in part, because they
failed to present evidence of his emotional and mental immaturity. The state courts determined
this claim was procedurally barred because the Florida Supreme Court, on direct appeal, had
rejected Gudinas’s claim that the trial court erred by failing to find his chronological age of
twenty was mitigating. Of course,“[w]hen a state court declines to review the merits of a
petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas
review.” Wellons v. Hall, ---U.S.---, 

, 730 (2010) (quotation marks omitted).

                                                  8
decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

      The familiar standard from Strickland governs our evaluation of Gudinas’s

ineffective assistance of counsel 

–92, 104 S. Ct. at

2064–67. Under Strickland, Gudinas must show that his counsel’s performance

was deficient, which means that it “fell below an objective standard of

reasonableness” and was “outside the wide range of professionally competent

assistance.” 

, 2066; Smith v. Sec’y, Dep’t of

Corrs., 

, 1349 (11th Cir. 2009). In making this determination, we

must review counsel's actions in a “highly deferential” manner and “must indulge

a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” 

, 104 S. Ct. at

2065. To show prejudice, Gudinas must demonstrate that, “but for his counsel's

deficient performance, there is a reasonable probability that the result of the

proceeding would have been different—that is, our confidence in the outcome




                                          9
must be undermined by counsel's deficient performance.” Johnson v. Sec’y, Dep’t

of Corrs., ---F.3d---, No. 09-15344, 

, at *19 (11th Cir. 2011).

      We have carefully reviewed the state court record, including Gudinas’s

original trial and the state court evidentiary hearing, as well as the trial court’s

order and Florida Supreme Court’s opinion denying his penalty phase ineffective

assistance of counsel claim. As noted above, the state courts correctly identified

and applied the Strickland standard so we cannot conclude that their decision was

contrary to clearly established Supreme Court precedent. Windom v. Sec’y, Dep’t

of Corrs., 

, 1247 (11th Cir. 2009) (“A state court decision is

contrary to clearly established federal law if it applies a rule that contradicts the

governing law set forth in [Supreme Court] cases or confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and arrives

at a result opposite to [the Court’s].”) (quotation marks omitted and alterations in

original).

      Nor can we conclude that the state court “unreasonably” decided Gudinas’s

ineffective assistance of counsel claim. A state court unreasonably applies federal

law when it “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case,” or when it

“unreasonably extends, or unreasonably declines to extend, a legal principle from

                                           10
Supreme Court case law to a new context.” Suggs v. McNeil, 

,

1227 (11th Cir. 2010) (quotation marks omitted). In determining

unreasonableness, we do not ask whether the state court decided an issue

correctly, but only whether the court’s decision was objectively unreasonable. See

Renico v. Lett, --- U.S. ---, 

, 1862 (2010).

      Again, after correctly identifying Strickland, the Florida Supreme Court

carefully evaluated every aspect of Gudinas’s penalty phase ineffective assistance

of counsel claim, including Gudinas’s assertions that trial counsel failed to: (1)

call Ellen Evans as a witness; (2) investigate and present Gudinas’s juvenile

history in DYS; (3) hire and present a social worker; (4) present history of

substance abuse; and (5) substantiate Dr. O’Brian’s testimony. See Gudinas 

–10. Gudinas also alleged trial counsel was ineffective for calling

his sister, Michelle Gudinas, as a witness because her testimony allowed the

prosecution to elicit damaging testimony regarding Gudinas’s alleged sexual

assault of her. 

In affirming the trial court’s rejection of

Gudinas’s penalty phase ineffective assistance of counsel claims, the Florida

Supreme Court found that Gudinas had shown neither deficient performance nor

prejudice. 

For example, with respect to the assertion that trial



                                          11
counsel should have called Ellen Evans as a witness, the Florida Supreme Court

stated:

      We find no error in the trial court's factual determination that Ms.
      Evans's testimony was in essence cumulative to the mitigation evidence
      actually presented at the penalty phase by experts and lay witnesses
      alike. In fact, much of Ms. Evans’s 3.850 hearing testimony was similar
      to the mitigating evidence described in our previous opinion affirming
      the conviction and sentence. We cannot fault the trial court for not
      second-guessing defense counsels' work. While it was established that
      additional mitigating evidence existed, that is not the standard
      Strickland contemplates in evaluating counsel's performance. We also
      find no error in the trial court's determination that Gudinas has not
      demonstrated prejudice according to Strickland because he has not
      shown that if Ms. Evans had testified, her testimony would have
      provided a reasonable probability, sufficient to undermine confidence
      in the outcome, that the outcome of the proceeding would have been different.

Gudinas 

–06.        With respect to Gudinas’s claim that trial

counsel was ineffective for failing to investigate and present more detail of Gudinas’s

institutional background with DYS, the state court stated:

      The lawyers’ testimony at the 3.850 hearing revealed that they were
      fully informed as to Gudinas’s institutional background and made an
      informed choice to present his background in a limited fashion so as to
      paint him in the best possible light, as someone who was able to be
      rehabilitated, rather than someone who had rejected numerous attempts
      at rehabilitation.




                                           12


As a result, the Court found that trial counsel’s performance was not

deficient based upon tactical considerations. 

Alternatively, assuming

deficient performance, it concluded there was not prejudice. 

our independent review of the record, and for all the reasons

discussed above, we conclude that the Florida Supreme Court’s opinion was

neither contrary to, or an unreasonable application of clearly established federal

law. See 28 U.S.C. § 2254(d); 

. Therefore, we affirm

the opinion of the District Court denying Gudinas’s habeas corpus petition.

AFFIRMED.




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