Case: 13-11789    Date Filed: 05/15/2014   Page: 1 of 36


                                                                           [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 13-11789
                             ________________________

                        D.C. Docket No. 0:91-cv-06717-CMA

THOMAS DEWEY POPE,

                                                     Petitioner - Appellee,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                     Respondent - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                    (May 15, 2014)

Before CARNES, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

         More than three decades ago, a Florida court sentenced habeas petitioner

Pope to die for the brutal murder of Kristine Walters. Pope now claims that he is

entitled to resentencing because his trial counsel provided ineffective assistance
              Case: 13-11789     Date Filed: 05/15/2014    Page: 2 of 36


during the penalty phase. See Strickland v. Washington, 

(1984).

First, he argues that counsel did not investigate or present at the sentencing phase

of trial mitigation evidence bearing on Pope’s childhood, military service,

dependence on drugs, or mental illness. Second, he complains that counsel failed

to object when the prosecutor commented in closing argument to the jury that Pope

preferred to receive the death penalty rather than face life in prison. After a prior

appeal to this Court and a remand, the district court granted habeas relief pursuant

to 28 U.S.C. § 2254. Based on thorough review of the entire record presented to

the state court, we reverse because Pope has not shown that the Florida Supreme

Court’s decision rejecting his Sixth Amendment claims was contrary to or an

unreasonable application of clearly established Supreme Court law.

                                          I.

      We laid out the facts and procedural history of this case in our previous

opinion. See Pope v. Sec’y for the Dep’t of Corr. (Pope I), 

, 1277-

81 (11th Cir. 2012). This section outlines the essential background needed for

deciding the current appeal.

                                          A.

      Thomas Dewey Pope was convicted in 1982 in a Broward County, Florida,

court of the murders of Albert Doranz, Caesar Di Russo, and Kristine Walters. On

January 19, 1981, the bodies of Doranz and Di Russo were discovered in Walters’s



                                           2
              Case: 13-11789    Date Filed: 05/15/2014    Page: 3 of 36


apartment. Walters’s body was found three days later in a canal. Doranz and Di

Russo had been shot multiple times. Walters had been shot six times with

exploding ammunition, her skull had been fractured, and she was thrown into a

canal while still breathing. Pope v. State, 

, 1074 (Fla. 1983).

      At trial, Pope and his girlfriend, Susan Eckard, admitted that they had been

with Doranz and Walters at Walters’s apartment on the Friday night Doranz and Di

Russo were killed. 

According to Eckard, Pope had arranged a drug

deal with Doranz and Di Russo so that he could steal and sell their cocaine.

Eckard and Pope left the apartment, but when they returned, Pope and Doranz

convinced Walters to leave with Eckard and go to Pope’s apartment. Once the

women had left, Pope shot and killed Doranz and Di Russo. Pope returned to his

apartment later that night, reported there had been trouble, and told Walters to stay

away from Doranz. The next day Walters checked into a motel, where Pope

supplied her with Quaaludes and cocaine. According to Eckard, Pope said he

knew he had to get rid of Walters, though he regretted it because he had become

fond of her. On Sunday, Pope drove Walters to an isolated road where he shot,

beat, and ultimately drowned her. Eckard testified that Pope told her in detail how

he killed Walters, including how the rifle had broken when he used it to bash her

skull. 

                                          3
             Case: 13-11789     Date Filed: 05/15/2014   Page: 4 of 36


      Eckard’s testimony also addressed Pope’s drug use. She read a letter from

Pope in which he admitted to buying and using Quaaludes and cocaine the night of

the murders. Eckard acknowledged that she and Pope had attended parties

featuring widespread drug use and that Pope would regularly go several days at a

time without sleeping. Two other witnesses, Clarence Lagle and Edith Cribb,

testified about Pope’s drug use and drug dealing.

      During the guilt phase, Pope’s attorney, Scott T. Eber, presented the

testimony of Dr. William Weitz, a clinical psychologist who specialized in the

treatment of post-traumatic stress disorder (“PTSD”) in Vietnam veterans. Weitz

opined that, based on an interview of Pope and a review of his military records,

Pope suffered from PTSD. According to Weitz, Pope as a Marine rifleman

“adopted a survivor-like style of living” in which he valued basic physical

subsistence above all else. Weitz traced this behavior to Pope’s emotional and

psychological attempts to deal with his combat experience, in particular one

experience when Pope survived a mortar attack that killed friends around him.

Weitz told the jury that the only time Pope became emotional during the interview

was upon describing his return from Vietnam to the United States. Pope felt he

had been manipulated and that his time spent at war was all for nothing. Weitz

explained that Pope, like other returning Vietnam veterans with similar

psychological conditions, showed an inability to readjust to society. Weitz



                                         4
              Case: 13-11789     Date Filed: 05/15/2014   Page: 5 of 36


testified that he thought it unusual for a person like Pope, who highly valued

personal freedom, to place himself in a situation where he could be confined for

the rest of his life for the purpose of gaining money or drugs.

      Pope testified at length during the guilt phase of trial. Among other things,

he told the jury that he had served in the infantry in the Marines and spent about

five months in Vietnam. He said he saw “some combat” when distributing

supplies to soldiers in the field, though “not mostly like a heavy combat all of the

time.” Pope recounted his honorable discharge and his clean disciplinary record.

He explained that he and other returning Marines were greeted in the United States

by “hippies” who threw rocks at them because they had served in Vietnam, and

told them they “wasted the taxpayers[’] money and killed innocent women and

children.” Pope said that he started doing drugs after the war and, after trying

various jobs, he began “wheeling and dealing” drugs full time. His testimony

revealed that he, along with Doranz and Di Russo, had been deeply involved in

guns and drugs. Finally, Pope detailed his use of cocaine and Quaaludes

throughout the weekend of the murders.

      The jury convicted Pope of three counts of first degree murder. After the

jury returned the guilty verdicts, Pope and his trial counsel, Eber, had the following

exchange with the court outside the presence of the jury concerning Pope’s

sentencing phase presentation:



                                          5
              Case: 13-11789     Date Filed: 05/15/2014    Page: 6 of 36


             Eber: I have discussed the situation that is presently
             before us with Mr. Pope. I have discussed it informally
             with the Court. Mr. Pope does not wish me to argue to
             the jury at this point. I understand that it is my obligation
             as his attorney to do so, however. Mr. Pope feels that it
             is my obligation, as his attorney, to follow his wishes in
             this situation. I believe he may have something he
             desires to say, if the Court would entertain that. But I
             have told him, and I believe that it is my obligation to
             make a presentation to the jury.

             The Court: Alright. If you want to say anything, Mr.
             Pope, you may.

             Pope: I’d really rather not have him make a presentation
             on my behalf to the jury. You only have two choices,
             and I know what my choice is. I know I’m not trying to
             take your job, that is not what I want and is not
             necessarily what you are going to give me; but I would
             rather have the death sentence than the twenty-five years
             in prison.

             The Court: Alright. I still think you ought to speak on
             his behalf as your obligation. You made your wishes
             known. I can understand that. Thank you. Bring the
             jury in.

Pope 

(emphasis added).

      Eber called Pope’s mother as the only witness during sentencing. In her

testimony, which takes just over a page in the transcript, she said only that Pope

“has never been the same” since returning from Vietnam and that she was “sure he

has done things since he came back that he has never done before.” She asked the

jury to have mercy on her son, who she believed was innocent. [Id.] Eber did not




                                          6
              Case: 13-11789     Date Filed: 05/15/2014    Page: 7 of 36


present any expert testimony at sentencing, from Dr. Weitz or any other mental

health professionals.

      During his sentencing argument to the jury, the prosecutor walked through

the statutory aggravating factors. Turning to mitigation, he began:

      Incidentally, Mr. Pope has announced that he would rather receive a
      death penalty than life imprisonment. I would say to you that your
      verdict, your recommendation, should not be based on that. You owe
      that to yourselves; and, in fact, you owe that to Mr. Pope. I ask that
      your recommendation be based on these factors, as the Court will
      indicate that to you. It is one thing for him to say that to you now
      because where there is life there is hope. The reason I’m saying that
      is because there is no hope for the life of Al Doranz, Caesar [Di
      Russo] and [Kristine] Walters. I’m saying it because this thing has to
      end sometime. You have to do sometime what is unpleasant and say
      you don’t deserve to live if you have taken three lives.

      Defense counsel Eber did not object to the prosecutor’s comment. Eber’s

own sentencing presentation to the jury on behalf of Pope was limited: “I will be

brief. I want to let you know that Thomas Pope has specifically asked me not to

get up and say anything to you.” Eber explained that Pope maintained his

innocence. “He doesn’t want to beg you for mercy but I feel that it is my

obligation to tell you why I think that the death penalty is not appropriate in this

case.” Eber directed a handful of sentences to aggravating factors pressed by the

prosecution. He then identified at least three mitigating factors: Pope lacked a

significant criminal history; Pope had been suffering from extreme mental or

emotional disturbance, which Eber coupled with his substantially impaired



                                           7
                Case: 13-11789       Date Filed: 05/15/2014        Page: 8 of 36


capacity to appreciate the criminality of his conduct or conform his conduct to law;

and Pope went through experiences that had a profound effect and changed his

personality.

       Notably, the jury recommended life sentences for the murders of Doranz and

Di Russo. But it recommended the death penalty for the killing of Walters, by a

vote of nine to three. At the Spencer hearing conducted after the jury made its

recommendations, 1 Eber asked the court to consider Pope’s military service and

PTSD as mitigating factors. Eber stated that “Pope went off and lived like an

animal in the jungles.” Referencing Dr. Weitz’s testimony, Eber argued that

Pope’s experiences “did something profound to him” that explained the way his

life had gone, including his involvement with drugs. The judge responded: “We all

know that all war is hell. There is nothing original about that. Some people try to

make themselves better after they get out of war, others unfortunately, go the other

way.” Offered a chance to speak, Pope had nothing to say.

       The trial court adopted each of the jury’s recommendations. It found four

aggravating circumstances concerning the murder of Walters: (1) Pope was

previously convicted of two capital felonies, the murders of Doranz and Di Russo,

Fla. Stat. § 921.141(5)(b); (2) the murder was committed to avoid arrest, 

Florida law, a Spencer hearing gives the defendant, his counsel, and the State the
opportunity to be heard and to present additional evidence to the sentencing judge after the jury
has offered its recommendation. See Spencer v. State, 

, 681 (Fla. 1993) (per
curiam).


                                                8
              Case: 13-11789     Date Filed: 05/15/2014    Page: 9 of 36


§ 921.141(5)(e); (3) the murder was especially heinous, atrocious, or cruel, because

of its nature and because Pope showed no remorse, 

and (4) the

murder was committed in a cold, calculated, and premeditated manner, 

The judge found one mitigating factor, Pope’s service in Vietnam

and honorable discharge from the Marines, under the “catchall” provision, Fla.

Stat. § 921.141(6)(h). The trial judge sentenced Pope to die.

                                           B.

      Pope took a direct appeal to the Florida Supreme Court, which affirmed the

convictions and sentences. Pope v. 

. Pope then filed a

state court motion for post-conviction relief claiming ineffective assistance of

counsel pursuant to Florida Rule of Civil Procedure 3.850. Pope alleged twelve

errors by trial counsel, including two penalty-phase ineffectiveness claims: (1)

counsel’s failure to object to improper comments by the trial judge and the

prosecutor; and (2) counsel’s failure to present mitigating evidence related to

Pope’s background. The state court rejected ten of Pope’s allegations, including

the two tied to the penalty phase, as either failing to state a Strickland claim or as

being refuted by the record. The court conducted an evidentiary hearing on two

remaining claims, including one in which Pope argued that his trial counsel had

been ineffective for presenting Pope’s post-traumatic stress disorder against his

client’s wishes.



                                           9
             Case: 13-11789     Date Filed: 05/15/2014   Page: 10 of 36


      As part of that hearing, Eber gave a videotaped deposition on August 20,

1987, which shed tangential light on Pope’s penalty-phase ineffectiveness claims.

Eber stated that he remembered Pope asking him not to present any mitigating

factors or circumstances. Eber did not recall investigating any mitigation factors,

talking with any of Pope’s family members, or finding out about his childhood.

Eber explained that he did not employ an investigator because he had been told he

could only spend a few hundred dollars. Based on evidence from the hearing, the

state court denied Pope’s remaining two claims. It concluded that Pope knew,

understood, and concurred in the decision of his trial counsel to present the

testimony of Dr. Weitz during the guilt phase.

      Pope appealed this post-conviction decision to the Florida Supreme Court,

which affirmed the trial court’s denial of the Rule 3.850 motion. Pope v. State,

, 1246 (Fla. 1990) (per curiam). The Florida Supreme Court

affirmed the summary denial of Pope’s claims that “trial counsel failed to object to

improper comments by the prosecutor” and that “trial counsel failed to present

evidence of mitigating circumstances during the penalty phase.” 

The

Florida Supreme Court noted that it had “reviewed the motions, files, and records

in this case and agree[d] with the trial court that they conclusively demonstrate that

Pope is entitled to no relief in connection with the above claims.” 

13-11789     Date Filed: 05/15/2014   Page: 11 of 36


      Meanwhile, as his Rule 3.850 motion was pending, Pope petitioned the

Florida Supreme Court for a writ of habeas corpus based on ineffective assistance

of appellate counsel. The Florida Supreme Court refused Pope relief. Pope v.

Wainwright, 

, 800 (Fla. 1986). In addition, Pope has filed in state

court a number of other unsuccessful motions and petitions. Pope 

; see, e.g., Pope v. State, 

(Fla. 1997) (per curiam), reh’g

denied (Fla.1998).

                                         C.

      In 1991, Pope filed a petition for a writ of habeas corpus in the United States

District Court for the Southern District of Florida. Pope’s petition presented seven

claims, including an allegation of ineffectiveness of penalty-phase counsel. The

district court dismissed without prejudice, finding that the petition included both

exhausted and unexhausted claims. After further litigation in state court, in 1999

Pope amended his federal habeas petition, which included nearly identical penalty-

phase ineffectiveness allegations. An array of motions from the parties and years

of litigation followed.

      In 2008, the district court granted Pope’s habeas petition in part, concerning

penalty-phase ineffectiveness, and rejected his remaining claims. The court

concluded that Pope’s counsel performed deficiently by failing to discover and

present any of the available mitigation evidence and by not objecting to the



                                          11
             Case: 13-11789     Date Filed: 05/15/2014    Page: 12 of 36


prosecutor’s improper comment. Particularly in light of the three jurors’ votes for

life, the district court found a reasonable probability that the jury would have

recommended a life sentence but for counsel’s errors.

      Pope I vacated the grant of habeas relief and remanded to allow the district

court to hold a § 2254(e)(2) hearing to develop evidence bearing on Pope’s

. We began by determining that AEDPA applied. 

We decided that Pope had not procedurally defaulted before the state

court, which had rejected Pope’s claims on the merits, and that Pope had exhausted

his claims in state court. 

1287. We concluded that the district court

had erred in granting habeas relief on a relatively empty record that “le[ft] us with

Pope’s untested penalty-phase allegations, and little, if anything else to consider.”

We remanded for the district court to conduct a § 2254(e)(2)

hearing concerning Pope’s penalty-phase ineffectiveness claims. 

We

affirmed the district court’s denial of habeas relief as to Pope’s other claims. 

Court denied certiorari. Pope v. Crews, 

(2013).

      On remand, the district court held a four-day evidentiary hearing in October

2012. Pope presented testimony from Eber and Dr. Weitz, as well as

neuropsychologist Dr. David Price and mitigation specialist Steven Gustat. The

State put forward testimony from psychologist Dr. Damarys Sanchez. On March

26, 2013, the court again ordered habeas relief. The district court first determined



                                          12
             Case: 13-11789     Date Filed: 05/15/2014   Page: 13 of 36


that, because AEDPA applied, and because the Florida Supreme Court had

adjudicated Pope’s claims on the merits, Cullen v. Pinholster, 

(2011), required that Pope satisfy § 2254(d) based only on the record before the

state post-conviction court. The district court rejected Pope’s assertion that Pope I

had implicitly found that the requirements of § 2254(d) had been met. Conducting

its own § 2254(d) review, the court concluded, based only on the evidence

presented in the state proceedings, that Pope sufficiently established the Florida

Supreme Court’s determination was unreasonable. The district court then

conducted a de novo review of Pope’s Strickland claims, this time considering the

federal hearing evidence. Again, the court concluded that Pope was entitled to

habeas relief under Strickland based on all of the evidence presented before the

state court and at the federal habeas hearing.

      The Secretary timely appealed the district court judgment to this Court.

                                          II.

                                         A.

      We review de novo a district court’s grant of a petition for habeas corpus.

McNair v. Campbell, 

, 1297 (11th Cir. 2005). We also review

questions of law and mixed questions of law and fact de novo, while district court

findings of fact are reviewed for clear error. 

provided




                                          13
                  Case: 13-11789      Date Filed: 05/15/2014       Page: 14 of 36


ineffective assistance presents a mixed question of law and fact that we review de

novo. 

found in Pope I, AEDPA applies to Pope’s habeas 

. Under AEDPA, if a petitioner’s habeas claim “was adjudicated on the

merits in State court proceedings,” a federal court may not grant habeas relief

unless the state decision (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or (2) “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).2 Pope does not argue under § 2254(d)(2) that the Florida

Supreme Court made an unreasonable determination of facts in denying his claim.

Thus, to overcome the high habeas threshold, Pope must establish under

§ 2254(d)(1) that the Florida Supreme Court’s refusal to grant him relief was



2
    In full, § 2254(d) provides:

          An application for a writ of habeas corpus on behalf of a person in custody
          pursuant to the judgment of a State court shall not be granted with respect to any
          claim that was adjudicated on the merits in State court proceedings unless the
          adjudication of the claim --

                 (1) resulted in a decision that was contrary to, or involved an
                 unreasonable application of, clearly established Federal law, as
                 determined by the Supreme Court of the United States; or

                 (2) resulted in a decision that was based on an unreasonable
                 determination of the facts in light of the evidence presented in the
                 State court proceeding.


                                                 14
              Case: 13-11789     Date Filed: 05/15/2014    Page: 15 of 36


“contrary to” or involved an “unreasonable application of” clearly established

federal law as determined by the United States Supreme Court. This he cannot do.

      “Under § 2254(d)(1)’s ‘contrary to’ clause, we grant relief only ‘if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.’” Jones v. GDCP

Warden, No. 11-14774, 

, at *10 (11th Cir. Mar. 20, 2014)

(alterations in original) (quoting Williams v. Taylor, 

, 413 (2000)).

For § 2254(d)(1), clearly established federal law includes only the holdings, not the

dicta of Supreme Court decisions, nor the opinions of this Court. White v.

Woodall, 

, 1702 (2014). “Under § 2254(d)(1)’s ‘unreasonable

application’ clause, we grant relief only ‘if the state court identifies the correct

governing legal principle from [the Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.’” Jones, 

, at *10 (alteration in original) (quoting 

). The

Supreme Court has interpreted § 2254(d) as requiring that, “a state prisoner must

show that the state court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 

, 786-87 (2011). “[A]n



                                           15
             Case: 13-11789     Date Filed: 05/15/2014    Page: 16 of 36


‘unreasonable application’ of [Supreme Court] holdings must be ‘objectively

unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” 

. In other words, Pope must establish that no fairminded jurist

would have reached the Florida court’s conclusion. See 

-

87; Holsey v. Warden, Ga. Diagnostic Prison, 

, 1257-58 (11th Cir.

2012). “If this standard is difficult to meet, that is because it was meant to be.”

.

      Cullen v. Pinholster further mandated that a federal court must determine

whether a habeas petitioner has satisfied § 2254(d) based only on the “record that

was before the state court that adjudicated the claim on the 

. In Pinholster, the Ninth Circuit had held that a federal court making a

§ 2254(d) habeas determination could consider additional evidence not presented

to the state court. Pinholster v. Ayers, 

, 666 (9th Cir. 2009) (en banc).

The Supreme Court reversed. Part II of Justice Thomas’s majority opinion

explained that § 2254(d) contained “backward-looking language requir[ing] an

examination of the state-court decision at the time it was made. It follows that the

record under review is limited to the record in existence at that same time i.e., the

record before the state court.” 

. This reading of the

text was “compelled by ‘the broader context of the statute as a whole,’ which

demonstrates Congress’ intent to channel prisoners’ claims first to the state



                                          16
             Case: 13-11789     Date Filed: 05/15/2014    Page: 17 of 36


courts.” 

(quoting Robinson v. Shell Oil Co., 

, 341

(1997)). “It would be contrary to that purpose to allow a petitioner to overcome an

adverse state-court decision with new evidence introduced in a federal habeas court

and reviewed by that court in the first instance effectively de novo.” 

      Though the state habeas court had not held a hearing, in Pinholster the

Supreme Court observed that “[§] 2254(d) applies even where there has been a

summary denial,” in which case a petitioner “can satisfy the ‘unreasonable

application’ prong of 2254(d)(1) only by showing that ‘there was no reasonable

basis’” for the state court decision. 

(quoting 

).

“After a thorough review of the state-court record,” the Supreme Court

“conclude[d] that Pinholster ha[d] failed to meet that high threshold.” 

-

03. “Given what little additional mitigating evidence Pinholster presented in state

habeas, we cannot say that the California Supreme Court’s determination was

unreasonable. Having already heard much of what is included in the state habeas

record, the jury returned a sentence of death.” 

      Applying the unwavering language of Pinholster, our review here is limited

to the record that was presented to the state post-conviction court. Justice

Thomas’s majority opinion rests on a clear, emphatic rule: if a state court has

adjudicated the claim on the merits, then a petitioner must satisfy § 2254(d)(1)

based only on the record before that state court. Pope I found that the Florida



                                          17
             Case: 13-11789     Date Filed: 05/15/2014    Page: 18 of 36


Supreme Court had reached a merits 

(“In short,

whether the Florida Supreme Court rejected the claims for facial insufficiency or

only after concluding that they were refuted by the record, the determination would

have been on the merits.”); see Borden v. Allen, 

, 809-816 (11th Cir.

2011); Powell v. Allen, 

, 1272-73 (11th Cir. 2010). Therefore, as all

of the parties now concede, the § 2254(d) inquiry is limited to the record before the

Florida Supreme Court in 1990 when it rejected Pope’s sentencing-phase

ineffectiveness claims on the merits. See Pope v. 

.

Indeed, the district court rightly followed Pinholster and initially performed a

§ 2254(d) analysis based solely on what was found in the state court record.

                                          B.

      Based on the state record, Pope cannot satisfy § 2254(d) for the reasons we

explain below. Pope suggests, however, that our previous opinion answered the

§ 2254(d)(1) question by implying that the threshold inquiry had been satisfied.

But Pope I did not rule on § 2254(d). Nor did it necessarily imply that § 2254(d)

had been satisfied. It is true that Pope I ordered a federal evidentiary hearing under

§ 2254(e)(2). It is also true that, under Pinholster, § 2254(d) must be satisfied

before a federal habeas court may consider any § 2254(e)(2) evidence. See 131 S.

Ct. at 1398; 

(Breyer, J., concurring in part and dissenting in part)

(“[W]e cannot say whether an (e) hearing is needed until we know whether the



                                          18
               Case: 13-11789       Date Filed: 05/15/2014      Page: 19 of 36


state court, in rejecting Pinholster’s claim on the basis presented to that state court,

violated (d).”). But Pope I did not examine or even mention Pinholster. The

Supreme Court handed down Pinholster after Pope I had been fully briefed and

argued but before Pope I issued. Instead of finding that the Florida Supreme Court

decision was contrary to or an unreasonable application of Strickland under

§ 2254(d)(1), we remanded for a federal evidentiary hearing because the state

record was 

. In short, we are not bound by any claimed

§ 2254(d) holding drawn from Pope I because we never decided the question.

What’s more, insofar as Pope I suggested that § 2254(e)(2) hearing evidence could

be used as part of the § 2254(d) analysis, we could not follow that ruling because it

cannot be reconciled with the Supreme Court’s unambiguous holding in Pinholster.

. 3


3
  Though not invoked by either party, the law-of-the-case doctrine requires that we follow legal
conclusions reached in a prior appellate decision in the same case. This That & The Other Gift
& Tobacco, Inc. v. Cobb Cnty., Ga., 

, 1283 (11th Cir. 2006) (per curiam). But
law-of-the-case principles do not apply when “the prior decision was clearly erroneous and
would result in a manifest injustice.” Oladeinde v. City of Birmingham, 

, 1288
(11th Cir. 2000). We recognize this exception because the law-of-the-case doctrine does not
limit the court’s power; instead, it “is an expression of good sense and wise judicial practice.”
Venn v. St. Paul Fire & Marine Ins. Co., 

, 1063 (11th Cir. 1996) (quoting DeLong
Equip. Co. v. Wash. Mills Electro Minerals Corp., 

, 1196 (11th Cir. 1993)). The
“clear error” exception, albeit narrow, applies “when the legal error is beyond the scope of
reasonable debate.” Jenkins Brick Co. v. Bremer, 

, 1370-71 (11th Cir. 2003).
There can be no debate that Pinholster limits our § 2254(d) review to the record before the state

. Moreover, we have held that it would be manifestly unjust to apply to
a material issue a legal principle that is clearly erroneous in light of binding authority. See
Culpepper v. Irwin Mortg. Corp., 

, 1272 (11th Cir. 2007); Murphy v. FDIC, 

, 966 (11th Cir. 2000).



                                               19
               Case: 13-11789        Date Filed: 05/15/2014       Page: 20 of 36


       Pope I left open the § 2254(d) question. The Supreme Court has held that we

must decide this essential matter based on the record presented to the state court.

Therefore, we are required to determine today whether the Florida Supreme

Court’s denial of relief was contrary to or an unreasonable application of

Strickland based only on that record. 4

                                                III.

       Pope asserts two Strickland claims. First, he says that his sentencing-phase

counsel was ineffective for failing “to conduct any background investigation and to

present any mitigation evidence.” He also argues counsel was ineffective for

failing to object to “prosecutorial misconduct in the state’s penalty phase closing


4
  Pope also suggests at one point in his brief that our inquiry in this appeal is limited to whether
Pope presented sufficient additional evidence at the federal evidentiary hearing to substantiate
his allegations. See Pope 

(“[Pope’s] allegations, considered together, are
powerful, and if he is able to prove they are true, he would be entitled to habeas relief.”). As we
have explained, however, and indeed as the petitioner now recognizes, Pinholster commands that
we must conduct the § 2254(d) analysis based only on the evidence then available to the state
post-conviction court, and not on an evidential foundation developed later and reviewed for the
first time in federal court.

But, even if we could look to the evidence drawn from the federal hearing -- and we cannot --
Pope still would not have met his high burden. In the first place, Pope did not prove all of the
allegations contained in his habeas petition during the district court hearing. Thus, for example,
Pope did not establish that he suffered from bipolar disorder, one of the more significant mental
health allegations in his federal habeas petition. Moreover, the evidence adduced at the federal
hearing was insufficient to establish Strickland prejudice. Again, the aggravating evidence was
extremely powerful. And the bulk of the mitigating evidence was presented to the jury, which
heard about Pope’s war record, his combat-related PTSD, and his substantial drug use.
Regardless, there is no record evidence, even drawn from the federal habeas hearing, that Pope
would have allowed the presentation of mitigating evidence if he had been properly advised by
counsel. Finally, the federal hearing turned up no substantial new evidence concerning prejudice
caused by trial counsel’s failure to object to the prosecutor’s comment about Pope’s preference
for the death penalty. See infra Part III.B-C.


                                                20
              Case: 13-11789     Date Filed: 05/15/2014     Page: 21 of 36


argument” when the prosecutor “disclosed non-record evidence that Mr. Pope

preferred death.”

      Strickland requires that Pope establish both “that his counsel provided

deficient assistance and that there was prejudice as a result.” 

. “To establish deficient performance, a person challenging a conviction must

show that ‘counsel’s representation fell below an objective standard of

reasonableness.’” 

466 U.S. at 688). Prejudice requires

showing “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 

.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” 

case, we need not address whether counsel performed deficiently

because Pope cannot establish prejudice. See 

(“[A] court need not

determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be followed.”);

Bishop v. Warden, GDCP, 

, 1254 (11th Cir. 2013) (“[A] court need

not address both [Strickland] prongs if the petitioner has made an insufficient

showing on one of them.”). The long and short of it is that the Florida Supreme



                                           21
             Case: 13-11789     Date Filed: 05/15/2014    Page: 22 of 36


Court had a reasonable basis for concluding, based on the record it was presented,

that Pope had not established Strickland prejudice.

                                          A.

      The state post-conviction record available to the Florida Supreme Court in

1990 when it rejected Pope’s claims is extraordinarily thin. In relevant part, that

record contains materials drawn from Pope’s trial, including transcripts of the

guilt-phase testimony of Pope, Eckard, Dr. Weitz, and other witnesses, as well as

the penalty-phase testimony of Pope’s mother. It includes the prosecutor’s

sentencing-phase comment on Pope’s preference for death over life in prison,

along with Eber’s abbreviated mitigation argument and his statements at the

Spencer hearing. The state record also contains Pope’s state post-conviction

filings, in which he argued that “Eber failed to present any evidence of mitigating

circumstances during the penalty phase of [Pope’s] trial other than the standard

plea of mercy from [Pope’s] mother.” Pope stated only at the highest order of

abstraction that “Eber did little or nothing to develop evidence of such mitigating

factors such as defendant’s psychological history, performance in the military, or

his capacity for rehabilitation.” Pope argued that, “in light of the lengthy period of

deliberation on guilt, two jury recommendations of life, and the far from

unanimous, single recommendation of death, the presentation of convincing

evidence and argument for life was all the more important.” Finally, the state



                                          22
             Case: 13-11789     Date Filed: 05/15/2014    Page: 23 of 36


record contains the depositions of Eber and Pope taken as part of the state post-

conviction proceedings. Notably, however, Pope did not attach to his state post-

conviction filings any affidavits, declarations, or exhibits with evidence bearing on

his penalty-phase ineffectiveness claims, nor was a hearing held addressing those

claims.

                                          B.

      On this limited state record, Pope does not come close to showing he was

prejudiced by any failure of his counsel to investigate and present mitigation

evidence at the penalty phase, let alone that the Florida Supreme Court’s

determination was an unreasonable application of Strickland. We say so for a

number of reasons. For starters, if a petitioner “instructed his counsel not to offer

any mitigating evidence,” then “counsel’s failure to investigate further could not

have been prejudicial under Strickland.” Schriro v. Landrigan, 

, 475

(2007). This principle rests on the theory that an obstructionist client would have

prevented the introduction of any mitigation evidence that may have been

discovered from a fuller search. See 

Cummings v. Sec’y for the

Dep’t of Corr., 

, 1360 (11th Cir. 2009) (“[T]here cannot be a

reasonable probability of a different result if the defendant would have refused to

permit the introduction of mitigation evidence in any event.” (citing 

)). To establish Strickland prejudice, then, a petitioner who has



                                          23
             Case: 13-11789     Date Filed: 05/15/2014    Page: 24 of 36


told trial counsel not to present mitigation evidence must show a reasonable

probability that, if he had been more fully advised about the mitigating evidence

and its significance, he would have permitted trial counsel to present the evidence

at sentencing. See Gilreath v. Head, 

, 551 (11th Cir. 2000). Beyond

that, the petitioner must also establish that this new mitigating evidence, if heard

by the jury, would have with a reasonable probability led the jury to recommend

life instead of death. See 

      Applying Landrigan, we have held in similar cases that state habeas court

denials of relief were not contrary to or unreasonable applications of clearly

established Supreme Court law. For example, in Cummings, we found the Florida

Supreme Court had not run afoul of clearly established Supreme Court law in

denying relief because, under Landrigan, Cummings had not shown that he would

have agreed to the presentation of new mitigation evidence even if it had been

investigated and 

. Like Pope, Cummings never

testified that he would have allowed trial counsel to present new mitigating

evidence. 

“consistently opposed the presentation of mitigating

evidence at his trial” and told counsel and the trial court “repeatedly that he did not

want a penalty-phase presentation.” 

his stated preference for the

death penalty “further indicat[ed] Cummings would not have consented to the




                                            24
                Case: 13-11789     Date Filed: 05/15/2014   Page: 25 of 36


presentation of mitigating evidence whose only purpose was to convince the jury

to recommend life instead of death.” 

case, the state record makes it abundantly clear that Pope had

instructed his attorney not to present any mitigation evidence at the penalty phase

of the trial. At the beginning of the sentencing hearing, before any presentation of

evidence or arguments were made to the jury, Eber told the court that “Mr. Pope

does not wish me to argue to the jury at this point.” Pope then told the court, “I’d

really rather not have him make a presentation on my behalf to the jury. You only

have two choices, and I know what my choice is. . . . I would rather have the death

sentence than the twenty-five years in prison.”

          Because Pope gave Eber unmistakable instructions not to put on mitigation

evidence, Pope must establish (1) a reasonable probability that he would have

authorized Eber to present the evidence if he had been advised more fully about the

available mitigating evidence, and (2) a reasonable probability that this evidence, if

presented, would have convinced a jury that the death penalty was unwarranted

based on the aggravating and mitigating factors. See 

-

77; 

; 

. Pope cannot do

either.

          Nothing in the state record suggests he “would have changed his directions

to his counsel had he been more fully informed about mitigating evidence.”



                                             25
             Case: 13-11789      Date Filed: 05/15/2014    Page: 26 of 36

. Pope argues that, because he did not interrupt the brief

penalty-phase testimony of his mother or stop his attorney from making similarly

short sentencing remarks, we can infer that Pope would not have stood in the way

of broader mitigation had it been discovered. This argument ignores Pope’s

explicit statements to the contrary and reverses his burden. It is Pope who must

affirmatively establish that, despite his instructions to his attorney and his

comments to the court, there is a reasonable probability that he would have

allowed mitigation evidence about his mental health or personal history to be

presented if properly advised. No evidence in the state record supports such a

showing. Pope has offered no affidavit, deposition, or statement from himself, his

counsel, or even from his mental health experts claiming that the petitioner would

have changed his instructions to counsel if advised of mitigation evidence. Pope

argues, nevertheless, that no one asked him the pivotal question and therefore this

omission cannot be held against him. This argument is without merit -- it too

misplaces the burden. Because Pope instructed his trial counsel not to present

mitigating evidence, the law plainly imposes on Pope the burden to establish that

he would have allowed additional mitigation to be presented if he had been

properly advised. See 

; 

; see

also 

(“Petitioner must show a reasonable probability

that -- if Petitioner had been advised more fully about character evidence or if trial



                                           26
               Case: 13-11789       Date Filed: 05/15/2014      Page: 27 of 36


counsel had requested a continuance -- Petitioner would have authorized trial

counsel to permit such evidence at sentencing.”).

       Other evidence in the state record only magnifies the substantial doubt that

Pope would have allowed his lawyer to present any additional mitigation.

Depositions of the public defender first assigned to represent Pope, Douglas

McNeill, suggest that Pope deeply opposed the presentation of mitigation

evidence, particularly related to his mental health. “Pope,” McNeill said, “from

the start of the case, had been saying that if he were convicted of first degree

murder that he did not wish to have evidence of mitigation presented to the jury,

that he wished to simply be sentenced to the electric chair.” Indeed, while McNeill

was his attorney, Pope refused to meet with a psychologist, Dr. Weitz. Pope

himself explained, “I just didn’t want to talk to a shrink. It was inconsistent with

any evidence. I would consider it an embarrassment.” According to Pope, “it just

seemed like a foolish thing to come in here and stand before a jury and say, ‘I am

innocent, really, I am innocent,’ for a week or two . . . and then when you are

convicted, then you stand before them and say, ‘Vietnam did it.’” 5 At the state

post-conviction hearing, Pope testified that he ultimately had agreed to talk to Dr.

Weitz upon the advice of the trial judge. Still, Pope insisted to Eber and to the trial

5
   In his post-conviction testimony, Pope also traced his opposition to mental health experts to
conversations with cellmates who told him “psychiatrists were put on the stand to say whatever
. . . the client’s lawyer paid them to say. If you want him to be loony toon, then they are loony
toon. If you want him to be sane, they said you are sane.”


                                               27
             Case: 13-11789     Date Filed: 05/15/2014    Page: 28 of 36


court at the outset of the penalty phase that he did not want any mitigation

evidence presented on his behalf. Quite simply, the Florida Supreme Court had a

reasonable basis for denying relief because Pope failed to establish that he would

have allowed trial counsel to introduce additional mitigation evidence at

sentencing if properly represented and advised.

      The Florida Supreme Court also had another wholly independent and

reasonable basis for denying relief: Pope failed to establish that, even if he would

have allowed the presentation of new mitigating evidence, there was a reasonable

probability the jury would have recommended against the death penalty. “To

assess that probability, we consider ‘the totality of the available mitigation

evidence -- both that adduced at trial, and the evidence adduced in the habeas

proceeding’ -- and ‘reweig[h] it against the evidence in aggravation.’” Porter v.

McCollum, 

, 41 (2009) (quoting 

). We

cannot say that no fairminded jurist would have agreed with the Florida Supreme

Court that Pope failed to satisfy this standard: serious aggravating factors

accompanied the calculated murder, and the state record itself contains no potential

mitigation evidence that was kept from the jury.

      First, the evidence in aggravation was substantial and powerful. The trial

court found four statutory aggravating factors. Pope had been convicted of two

other capital felonies, the murders of Doranz and Di Russo, which he committed



                                          28
             Case: 13-11789     Date Filed: 05/15/2014   Page: 29 of 36


just a few days before he murdered Walters. Pope also undeniably committed the

murder of Walters in order to avoid arrest. Pope told Eckard that Walters had to

die because her knowledge could reveal his role in the other slayings. Pope

committed the murder in a cold, calculated and premeditated manner. About two

weeks before the killings, Pope acquired an AR-7 rifle -- a .22 semi-automatic clip-

fed shoulder-held firearm that could be folded up and carried in a stock. Pope

equipped it with a silencer. He bought ammunition, including a box of Devastator

ammunition with explosive charges that would detonate after impact. After

shooting Doranz and Di Russo, Pope discussed with Eckard his plans to kill

Walters before going through with it. Though Pope said he had become fond of

Walters, he did not let feelings interrupt his bloody plan. He deliberated about it

over a period of days, plied the victim with drugs at a motel, and then horrifically

murdered her. Indeed, the evidence establishes that Pope’s professed fondness for

the victim did not prevent him from killing her in a manner that was especially

heinous, atrocious, or cruel. Pope told Eckard that he drove Walters to an unpaved

side road. He asked her to get out of the car and check the headlight, which had

burned out. Pope shot her from behind. He then shot her with the rifle pressed

close to her abdomen, where the explosion of the bullets at impact would have

been extraordinarily painful. Pope v. 

. After six shots did

not kill her, Pope bludgeoned her with the barrel of the AR-7 rifle. When the



                                         29
               Case: 13-11789   Date Filed: 05/15/2014    Page: 30 of 36


barrel broke over her head, he dragged her -- still alive -- to a canal to drown. 

mitigating evidence would have had to be substantial indeed to

undermine confidence in a sentence supported by these aggravating factors.

      But the state record contains no new mitigating evidence. Pope only alleges

that an adequate investigation would have revealed that he endured poverty and

physical abuse as a child and had a history of honorable military service, mental

illness, and drug dependency. Yet the state record contains nary a trace of any

additional evidence beyond what the jury actually heard. Because the state record

contains no new evidence, we cannot recognize a change in “the balance of

aggravating and mitigating circumstances” presented to the jury. 

.

      The state record is silent about Pope’s childhood history of poverty and

abuse. During his guilt-phase testimony, Pope did not mention his upbringing.

The brief sentencing-phase testimony from Pope’s mother similarly said nothing

about his youth. The state record contains nothing that illuminates the conditions

of Pope’s childhood. Pope’s state post-conviction petition did not even identify

counsel’s failure to investigate a background of poverty and abuse, much less

provide documentary support through affidavits, declarations, or exhibits.

Unidentified evidence can carry no weight in our prejudice analysis. The Florida

Supreme Court had a reasonable basis for discerning no prejudice from counsel’s



                                          30
             Case: 13-11789     Date Filed: 05/15/2014   Page: 31 of 36


alleged failure to investigate and present evidence of childhood conditions: the

state record said virtually nothing about what that evidence might be.

      Furthermore, the state record did contain extensive evidence about Pope’s

history of military service, his mental health problems, and his drug

abuse -- indeed, every piece of this evidence was heard at some point by the trial

jury. “Obviously, a petitioner cannot satisfy the prejudice prong of the Strickland

test with evidence that is merely cumulative of evidence already presented at trial.”

Rose v. McNeil, 

, 1243 (11th Cir. 2011). Here, the available

evidence in the state record is not merely cumulative -- it is largely the same

evidence presented to the jury during the guilt phase. Because the jury heard this

guilt-phase evidence, we cannot say that its repetition (or even its possible

expansion) during the penalty phase would have changed the result with any

reasonable probability, let alone that the Florida Supreme Court’s determination on

the point was an unreasonable one. See Evans v. Sec’y, Dep’t of Corr., 

, 1342 (11th Cir. 2013) (recognizing that a penalty-phase jury was aware of

evidence of aggravating factors elicited when the defendant testified during the

guilt phase); Sochor v. Sec’y Dep’t of Corr., 

, 1031 (11th Cir. 2012)

(finding no prejudice in part because “[m]ost of the nonstatutory mitigating

evidence that [petitioner] produced in the evidentiary hearing was cumulative of

evidence produced at the guilt and penalty phases of the trial”); Glock v. Moore,



                                          31
             Case: 13-11789     Date Filed: 05/15/2014    Page: 32 of 36

, 636 (11th Cir. 1999) (concluding that a capital petitioner could not

show prejudice because “much of the new evidence that [petitioner] presents is

merely . . . cumulative to that which was presented at trial”).

      As we’ve noted already, Dr. Weitz testified extensively during the guilt

phase about Pope’s mental condition at the time of the crime. Weitz explained his

conclusion that Pope suffered post-traumatic stress disorder from his combat

experience. Weitz stated that Pope’s subsequent behavior was survivor-like, which

stemmed from unusual trauma. And the jury heard from no mental health experts

who contradicted Weitz’s PTSD diagnosis.

      Pope himself shed considerable light on his military background when he

testified during the guilt phase. He too told the jury that he saw combat with the

Marines in Vietnam, after which he had been honorably discharged, only to be

heckled and ridiculed by protesters upon returning home. Pope’s testimony also

made the jury fully aware of his involvement in the use and sale of drugs. In fact,

Pope described for the jury his use of cocaine and Quaaludes during the weekend

of the murders. Other guilt-phase witnesses, including Eckard, attested to Pope’s

extensive history of drug abuse and involvement in drug dealing.

      Aside from testimony actually presented to the jury in the guilt phase, the

state record does not tell us in even the most general terms what mitigation

evidence counsel could have put forward. When we “consider the totality of the



                                          32
             Case: 13-11789     Date Filed: 05/15/2014   Page: 33 of 36


available mitigation evidence” in the state record, we see nothing new to “reweigh

. . . against the evidence in aggravation.” Porter v. McCollum, 

, 41

(2008) (quoting 

). Adding together all of the

aggravating and mitigating factors contained in the state record, then, we are hard

pressed to find unreasonable the Florida Supreme Court’s determination that there

was no Strickland prejudice.

                                         C.

      Nor can Pope show that he was prejudiced by Eber’s failure to object to the

prosecutor’s comment about Pope’s preference for the death penalty. Statements

made by a prosecutor, implicitly backed by the authority of her office, can have a

powerful effect on a jury. See Berger v. United States, 

, 88 (1935); see

also, e.g., United States v. Young, 

, 7-8 (1985); Viereck v. United

States, 

, 248 (1943). In this case, however, whether or not counsel’s

failure to object to the prosecutor’s comment about Pope’s desire for the death

penalty amounted to deficient performance, Pope has not established a reasonable

probability that the outcome would have been different if counsel had objected to

the prosecutor’s remarks, let alone that the Florida Supreme Court’s determination

on this point was unreasonable.

      In the first place, evidence of the defendant’s preference for death over life

was presented to the jury at Pope’s trial on at least three other occasions. During



                                         33
             Case: 13-11789     Date Filed: 05/15/2014   Page: 34 of 36


the guilt phase, the jury heard the testimony of Lieutenant Charles Hemp, an

officer who went to North Carolina to arrest Pope and who interviewed him in the

police station. During their conversation, Hemp told Pope that Eckard was not

going to lie for him anymore and that it was time for Pope to tell the truth. Hemp

testified that Pope then looked at him and said, “I’m going to be convicted. I don’t

care if they take my life.” Then, during Eckard’s testimony, she was presented

with letters that Pope had written to her. These letters were introduced into the

record as evidence. The prosecutor read exhibit 67 to Eckard; in this letter, Pope

discussed the potential witnesses arrayed against him and said, “They will also,

‘square me’ with the death penalty, hoping I will take three life sentences instead

of going to Court. Ha -- I’d rather be dead.” And, in his closing argument at the

penalty phase, defense counsel Eber said to the jury:

      Ladies and gentlemen, I will be brief. I want to let you know that
      Thomas Pope has specifically asked me not to get up and say anything
      to you. He maintains that he is innocent of committing these crimes.
      He doesn’t want to beg you for mercy but I feel that it is my
      obligation to tell you why I think that the death penalty is not
      appropriate in this case. I will be very brief.

Because the jury otherwise heard at least three times about Pope’s views on life

and death and his specific choice, it seems remote indeed that a fourth statement by

the prosecutor could have had much of an impact on their verdict, let alone the

statement this prosecutor made. The prosecutor himself asked the jury not to

consider Pope’s preference to die. Though it does not make the comment proper,

                                         34
             Case: 13-11789     Date Filed: 05/15/2014   Page: 35 of 36


the fact that the prosecutor’s statement took the same form as a limiting instruction

considerably softens any potentially negative impact.

      In the second place, and significantly, the fact that the jury distinguished

between a life-in-prison recommendation for the murders of Doranz and Di Russo

and a death recommendation for the Walters killing strongly suggests that the

prosecutor’s comment had little if any effect on the jury. In 1986, the Florida

Supreme Court gave a reasoned rejection of Pope’s second ineffectiveness claim

on this basis, noting that the comment, “although clearly improper, in light of the

aggravating evidence presented in connection with the murder of the female

victim,” was not “so egregious as to fundamentally undermine the reliability of the

jury’s recommendation.” Pope v. 

(footnote

omitted). The Florida Supreme Court explained that the mixed sentencing

recommendations -- life for the killings of Doranz and Di Russo, death for

Walters’s murder -- “evidence that the jury properly weighed the aggravating and

mitigating factors and did not blindly follow the petitioner’s death wish even if

they considered it.” 

accounts, the sentencing jury conducted a searching

and individualized inquiry. If indeed the prosecutor’s comment was excessively

explosive, influential, and prejudicial, one might have expected the jury to have

recommended death for all three killings. Yet they recommended the death penalty

only for the murder of Kristine Walters, where the evidence of extensive



                                         35
             Case: 13-11789     Date Filed: 05/15/2014   Page: 36 of 36


premeditation and the horrific nature of the homicide was particularly deplorable.

We see no sign that the jury was swayed by the prosecutor’s comment, particularly

given the strength of the four aggravating factors. Again, the Florida Supreme

Court’s determination was not an unreasonable one.

      In sum, Pope has presented two ineffectiveness claims, based on a failure to

gather and present additional mitigating evidence and on the failure to object to the

prosecutor’s comment about Pope’s preference for the death penalty. Whether we

consider these claims alone or in concert, we are compelled to conclude that the

Florida Supreme Court’s determination was not contrary to or an unreasonable

application of clearly established Supreme Court law. Florida’s high court had

ample reason to refuse relief on both of Pope’s ineffectiveness claims. Pope has

not met his considerable burden under § 2254(d). The district court erred in

granting a writ of habeas corpus.

      REVERSED.




                                         36