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Summary: Case: 18-12488 Date Filed: 05/01/2020 Page: 1 of 35 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-12488 _ D.C. Docket No. 9:17-cv-81159-WPD RONALD KNIGHT, Petitioner - Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents - Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (May 1, 2020) Before MARTIN, JORDAN, and NEWSOM, Circuit Judges. NEWSOM, Circuit Judge: Case:
Summary: Case: 18-12488 Date Filed: 05/01/2020 Page: 1 of 35 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-12488 _ D.C. Docket No. 9:17-cv-81159-WPD RONALD KNIGHT, Petitioner - Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents - Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (May 1, 2020) Before MARTIN, JORDAN, and NEWSOM, Circuit Judges. NEWSOM, Circuit Judge: Case: 1..
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Case: 18-12488 Date Filed: 05/01/2020 Page: 1 of 35
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12488
________________________
D.C. Docket No. 9:17-cv-81159-WPD
RONALD KNIGHT,
Petitioner - Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 1, 2020)
Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
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Death-sentenced Florida inmate Ronald Knight asks this Court to reverse the
district court’s denial of his habeas corpus petition, which he filed pursuant to 28
U.S.C. § 2254. He alleges that his counsel, Jose Sosa, rendered ineffective
assistance under Strickland v. Washington, 466 U.S. 668 (1984), by failing to
adequately investigate and present mitigating evidence during the sentencing phase
of his capital-murder trial. On state postconviction review, the Florida Supreme
Court rejected Knight’s claim, concluding that Sosa’s performance was not
constitutionally deficient. See Knight v. State,
211 So. 3d 1, 9–10 (Fla. 2016).
Knight thereafter filed a federal habeas petition under § 2254, arguing—among
other things—that the Florida Supreme Court’s rejection of his ineffective-
assistance-of-counsel claim was contrary to clearly established federal law,
constituted an unreasonable application of that law, and was based on an
unreasonable determination of the facts. The district court denied his petition, and
we granted a certificate of appealability on the ineffective-assistance claim.
After careful consideration, we affirm the district court’s denial of Knight’s
petition. Even assuming that Sosa performed deficiently in failing to investigate
and present the mitigation evidence that Knight now raises—thus satisfying the
first prong of the two-part Strickland standard that governs ineffective-assistance
claims—we hold that Knight has failed to carry his burden of demonstrating
resulting prejudice.
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Because the Florida Supreme Court didn’t reach Strickland’s prejudice
prong, we consider it here de novo. In doing so, we must reweigh the aggravating
evidence found by the judge who sentenced Knight against the totality of the
mitigating evidence—including both the evidence originally presented at
sentencing and the evidence that Knight now claims his counsel failed to present.
While Knight’s new evidence may strengthen some of the mitigating
circumstances presented at trial, it does not reveal any fundamentally new
information or support any new mitigating factors. Against this, the aggravating
factors found by the sentencing court remain unchallenged and unaltered. We
therefore cannot conclude that there is “a reasonable probability that . . . the
sentencing judge . . . would have struck a different balance”—in favor of life,
rather than death—had it been able to consider the new evidence. Porter v.
McCollum, 558 U.S. 30, 42 (2009) (quotation omitted). Accordingly, we find
ourselves constrained to affirm the district court’s denial of Knight’s § 2254
petition.
I
The grisly facts of Ronald Knight’s execution-style murder of Richard
Kunkel are not in dispute. On direct appeal, the Florida Supreme Court
summarized them as follows:
Knight and two accomplices, Timothy [Pearson] and Dain [Brennalt]
agreed that they would go to a gay bar, lure a man away from the bar,
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and beat and rob him. The three found Richard [Kunkel] and invited
him to go to a party . . . . After stopping to eat, the three convinced
Kunkel to leave his car parked there and ride to the party with them.
Knight then drove to a secluded area where they stopped twice and got
out of the car to urinate.
Before they got back into the car after their second stop, Knight
pointed a gun at Kunkel and told him to turn around and take off his
jeans. As Kunkel was complying, Knight fired one shot striking Kunkel
in the back. Kunkel fell to the ground and began crying for help. . . .
Knight and [Pearson] then dragged Kunkel’s body out of the road.
They left Kunkel to die beside a canal where his body was later
discovered. Knight threatened to kill [Pearson] and [Brennalt] if they
told anyone about the murder.
Later that night, the three men went back to . . . Kunkel’s car.
Knight then stole Kunkel’s car and took it for a joy ride to see how fast
it would go. Some time later that evening, the three men broke into
Kunkel’s house and stole various items.
Knight v. State, 770 So. 2d 663, 664 (Fla. 2000). Four years passed before Knight
was indicted for Kunkel’s murder. In the meantime, Knight killed Brendan
Meehan under similar circumstances—a crime for which he received a life
sentence.
Knight, 211 So. 3d at 6.
Knight was eventually charged with the first-degree murder of Kunkel, as
well as armed robbery, burglary of a dwelling, and grand theft. He waived his
right to a jury trial and discharged both attorneys appointed to represent him at the
guilt phase, Ann Perry and Jose Sosa, choosing instead to represent himself with
Sosa acting as standby counsel. Knight was found guilty on all charges. Knight,
770 So. 2d at 664.
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At some point during the guilt phase of the trial, Knight agreed that Sosa
would represent him during any penalty-phase proceeding. Accordingly, after
finding Knight guilty, the court reappointed Sosa as counsel for sentencing, with
respect to which Knight once again waived his right to a jury. The trial court
ultimately sentenced Knight to death. Id. Sosa’s conduct during the penalty phase
is the issue now before this Court—in particular, whether he was ineffective for
failing to adequately investigate and present additional mitigating evidence. See
Porter, 558 U.S. at 39 (“[C]ounsel had an obligation to conduct a thorough
investigation of the defendant’s background.” (quotation omitted)).
Ineffective-assistance-of-counsel claims are governed by the familiar two-
part Strickland standard:
[Petitioner] must show that his counsel’s deficient performance
prejudiced him. To establish deficiency, [petitioner] must show his
“counsel’s representation fell below an objective standard of
reasonableness.” To establish prejudice, he “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different.”
Id. at 38–39 (quoting
Strickland, 466 U.S. at 688, 694). In support of his claim,
Knight asserts that the mitigating evidence that Sosa offered at sentencing—which
included testimony from, among others, Knight’s mother, his sister, and two expert
witnesses who testified about Knight’s mental health—paled in comparison to the
evidence that Knight, represented by new counsel, eventually adduced at a state-
postconviction evidentiary hearing in 2012. There, in addition to Knight’s sister
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and one of his mental-health experts, Knight’s lawyer presented testimony from
Knight’s coconspirators Dain Brennalt and Timothy Pearson, two new expert
witnesses, and a counselor from a reform school that Knight attended as a teenager,
and also proffered an unverified affidavit from another student who had attended
the same school.
II
As in every death-penalty matter, we must undertake a careful review of the
procedural history of Knight’s case—complete with summaries of the various
hearings and the evidence presented there. Here in particular, where Knight
contends that his trial counsel failed to adequately investigate and present
sufficient mitigating evidence, our consideration necessarily involves a comparison
of the evidence introduced during the sentencing phase of Knight’s trial with the
proof later adduced on postconviction review. Accordingly, we will first canvass
the evidence presented at sentencing and the trial court’s sentencing order. Then,
following a brief review of Knight’s direct appeal, we will examine the state
postconviction proceedings—including, most importantly, the evidentiary hearing
principally at issue here, as well as the Florida Supreme Court’s decision affirming
the rejection of Knight’s ineffective-assistance-of-counsel claim.
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A
At the penalty phase of his trial, Sosa called Knight’s mother and sister, as
well as two expert witnesses who had also worked on the earlier Meehan trial—
mental-health counselor Susan Lafehr-Hession and psychiatrist Dr. Abbey Strauss.
Knight’s mother, Karen Gerheiser, and his sister, Theresa Scott Fowler,
testified about Knight’s family background and upbringing, detailing his troubled
childhood and early drug use, as well as academic and disciplinary struggles.
Gerheiser testified about her divorce from Knight’s father—in particular, how he
took Knight’s older brother Michael, but left Knight with her, and how Knight
struggled with this rejection and separation from his father and brother. Gerheiser
explained how many of Knight’s early problems seemed to begin at that time—
falling grades and increasing truancy, minor delinquency, and drug use.
According to Gerheiser, Knight’s home life further deteriorated following
the divorce. Knight, she said, faced a revolving door of stepfathers and boyfriends
and often left his mother’s home in favor of other accommodations—living with
girlfriends, camping in the woods, and eventually staying with his older brother.
She explained that in his mid-teens, Knight enrolled in a drug-treatment program
and later a school for troubled boys, the Eckerd Youth Center. Gerheiser testified
that Knight was injured while at Eckerd, resulting in hospitalization and surgery to
amputate a testicle.
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Gerheiser and Fowler also said, though, that Knight always had adequate
clothing and shelter, including an apartment that Gerheiser gave him at age 18.
They explained that Gerheiser did the best she could as a single mother, that they
supported Knight and encouraged him to go to school, and that Fowler did
everything she could to help Knight. Fowler testified that although there was some
parental neglect, Knight was not abused.
The sentencing court also heard from two expert mental-health witnesses,
both of whom had initially interviewed Knight in connection with the Meehan trial.
Susan Lafehr-Hession explained that in 1998 she was a mental-health counselor
working toward her Ph.D. She said that in preparation for the Meehan trial, she
met with Knight and administered several diagnostic tests to gauge his mental
capacity—including the Multiphasic Personal Inventory and Rorschach tests, the
Stanford-Binet Intelligence Scale IQ test, a word-association test, the House-Tree-
Person drawing test, and the Bender-Gestalt Motor Test. She further explained
that before testifying in the Kunkel proceedings, she spoke with Knight again,
reviewed his personal and social history, and listened to his mother’s testimony.
Lafehr-Hession diagnosed Knight with “a paranoid disorder or paranoia,”
which, she explained, “is a very pervasive all-inclusive mental illness, very severe,
very debilitating, does not change, does not get better except when the person is in
a highly structured setting.” She agreed with Sosa’s characterization of Knight as
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“a very disturbed paranoid person” with a “very severe and debilitating type of an
illness”—“[s]evere emotional disturbances . . . very distrusting and suspicious kind
of a person, emotionally unstable and aggressive, hostile.” And she postulated that
the focus of Knight’s paranoia stemmed from “whatever happened at [the Eckerd
Youth Center] that ended up in having his testicle amputated.” She explained that
a paranoid person like Knight harbors “a persistent bearing of grudges that grow
and continue like a snowball rolling down a hill.”
Sosa specifically asked Lafehr-Hession whether any of Florida’s statutory
mitigating factors applied to Knight. See Fla. Stat. Ann. § 921.141(6) (1996).
Lafehr-Hession agreed that Knight suffered from both extreme mental or
emotional illness or disturbance and a diminished capacity to appreciate the
criminality of his conduct or conform his conduct to the law. As to the former, she
testified that Knight is “always under the influence of extreme emotional distress
and disturbance, that’s the very nature of the disturbance, and it’s ever present and
it’s always there.” And as to the latter, she stated that Knight was not “able to
make choices, willful choices outside of that mental illness.” On cross-
examination, though, Lafehr-Hession also acknowledged the existence of statutory
aggravating factors. See Fla. Stat. Ann. § 921.141(5) (1996). She agreed that
Knight had the capacity to carefully plan a crime, knew right from wrong, and had
the ability to conceal misdeeds.
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Next up was psychiatrist Dr. Abbey Strauss, who, like Lafehr-Hession, first
evaluated Knight in preparation for the Meehan trial. During his Kunkel-trial
testimony, Strauss discussed his preparation for both trials, his evaluations of
Knight, and his diagnosis.
Strauss explained that prior to testifying in the Meehan trial, he conducted a
background investigation, reviewed medical records from jail and the Eckerd
Youth Center, read a private investigator’s report, and met with Knight twice. He
further explained that before testifying in the Kunkel trial, he met with Knight
twice more and read a background report that included Lafehr-Hession’s Kunkel-
trial testimony. He did not, however, speak to Knight’s parents, siblings,
neighbors, or associates.
At Knight’s sentencing hearing for the Kunkel murder—at issue here—
Strauss echoed Lafehr-Hession’s diagnoses, noting a strong suspicion of a paranoia
disorder. He added that Knight was an “extremely volatile, emotionally intense
young man . . . who has no easy control of the emotions that he has.” Like Lafehr-
Hession, he also testified to applicable statutory mitigating factors, agreeing that
Knight was under extreme mental or emotional distress at the time of the crime and
was unable to conform his conduct to the requirements of the law. Knight’s
history, Strauss testified, “[c]ombine[d] . . . with this undercurrent of a basic
pathology of a paranoia disorder,” meant that “his ability to really understand and
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truly project out ramifications of his behavior is very limited.” Like Lafehr-
Hession, though, Strauss also acknowledged aggravating factors. While insisting
that Knight was not a cold, calculated killer, Strauss agreed that Knight had the
ability to plan a crime and to conceal misdeeds.
After hearing from Knight’s family and mental-health experts, the trial court
sentenced him to death. Florida v. Knight, No. 97-5175 (Fla. Palm Beach County
Ct. May 29, 1998) (Sentencing Order). At the time, before a Florida court could
impose a death sentence, it had to conclude in a written order that “there [were]
insufficient mitigating circumstances to outweigh the aggravating circumstances.”
Fla. Stat. Ann. § 921.141(3)(b) (1996). The court had to consider fourteen
enumerated aggravating factors and seven mitigating factors, as well as “any other
factors in the defendant’s background that would mitigate against imposition of the
death penalty.” Fla. Stat. Ann. § 921.141(6)(h) (1996).
In its sentencing order, the court found two statutory mitigating factors and
gave weight to several non-statutory factors under § 921.141(6)(h)’s catchall.
From among the enumerated factors, the court found that the killing was
committed while Knight was under the influence of extreme mental or emotional
disturbance, § 921.141(6)(b), and that Knight’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law
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was “somewhat” impaired, § 921.141(6)(f). 1 Among non-statutory factors, the
court gave some weight to his troubled childhood as well as the facts that he had
the love and support of his family and that death would be a disparate punishment
compared to the lighter sentences imposed on his coconspirators. In addition,
although the court didn’t list Knight’s paranoia disorder as a stand-alone factor, it
gave substantial mitigating weight to that consideration in its treatment of the
mental-or-emotional-disturbance and impairment factors.
On the other side of the ledger, the court found four aggravating factors
under § 921.141(5)—(1) that Knight had previously been convicted of killing
Meehan; (2) that the Kunkel murder was committed during the course of a robbery;
(3) that it was committed for pecuniary gain; and (4) that it was cold, calculated,
and premeditated. (The court merged the robbery and pecuniary-gain
considerations and therefore gave weight to only three aggravating factors.) Of
those, the last was perhaps the most damning. With respect to that factor, the
sentencing court observed in its written order: “The defendant chose the ruse to
lure the victim, chose the victim, chose the time and place of the shooting and the
1
Although Fla. Stat. Ann. § 921.141(6)(f) (1996) required a judge to find that the defendant’s
capacity to appreciate criminality and conform conduct was “substantially” impaired, the
sentencing court here “was unable to find that [Knight’s] capacity was substantially impaired
based upon the experts’ testimony,” as “each concluded that he could distinguish right from
wrong.” Nonetheless, the court “g[ave] some [mitigating] consideration to the fact that
[Knight’s] capacity was somewhat impaired.” See Knight, No. 97-5175 (Sentencing Order)
(emphasis in original).
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manner of death for Richard Kunkel. The execution-style slaying of Kunkel by the
defendant was carried out in a cold, calculated and premeditated manner. There
was no possible claim of justification or excuse for the defendant’s actions.”
Knight, No. 97-5175 (Sentencing Order).
Considering all of the evidence, the court concluded that “the aggravating
circumstances far outweigh[ed] the mitigating circumstances and tilt[ed] the scales
of justice decidedly toward death.” Id. The court therefore sentenced Knight to
die for his crime. On direct appeal, the Florida Supreme Court unanimously
affirmed.
Knight, 770 So. 2d at 665. The United States Supreme Court
subsequently denied Knight’s petition for certiorari. Knight v. Florida,
532 U.S.
1011 (2001).
B
After his direct appeals were rejected, Knight commenced state
postconviction proceedings. Although only one of the claims raised there has
survived, Knight initially raised twenty-one, and the state postconviction court
granted him an evidentiary hearing on most of them. See Knight, 211 So. 3d at 7
(reviewing procedural history). Our ineffective-assistance-of-counsel inquiry
centers on the evidence presented at that hearing, which the court held in 2012.
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1
During the postconviction hearing, Knight presented his sister Theresa Scott
Fowler and Dr. Abbey Strauss, both of whom had also testified at sentencing, as
well as several additional lay and expert witnesses. The lay witnesses testified
concerning Knight’s background and upbringing—in addition to Fowler, they
included Knight’s codefendants Dain Brennalt and Timothy Pearson, as well as a
counselor at the Eckerd Youth Center named Zebedee Fennell. Knight also
presented an affidavit signed by a man named Keith Williams who claimed to have
attended Eckerd with a boy named Ronald Knight.
The Eckerd Youth Center featured prominently in both Pearson’s testimony
and the Williams affidavit. Pearson, Knight’s closest childhood friend, didn’t
attend Eckerd but claimed that it had a reputation as a “gladiator school,” full of
fights: “[I]t was the one place in Florida as a juvenile you did not want to get
sent.” Williams’s affidavit alleged that a boy named Ronald Knight had been
physically and sexually abused at Eckerd, suffering weekly rapes and beatings
from fellow students. Pearson testified that after Knight returned home, they
discussed the fights at Eckerd, but he said that Knight didn’t mention (and
wouldn’t have mentioned) any sexual abuse.
Zebedee Fennell, a counselor and later a program administrator at Eckerd,
testified that although he recalled an African-American boy at Eckerd named
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Ronald Knight, he didn’t know the defendant, who is white. Accordingly, he said,
he could testify only to the general conditions at Eckerd, which he acknowledged
included some violence.
Pearson also testified about Knight’s drug use. He said that he and Knight
started smoking marijuana at around age nine, and that by the time they were
teenagers they were smoking daily, drinking regularly, and experimenting with
cocaine, acid, and mushrooms. Eventually, he said, they started heavily abusing
drugs, including crack and powder cocaine.
Dain Brennalt echoed much of Pearson’s drug-related testimony. He said
that he first met Knight and Pearson as a customer, buying marijuana from them.
Eventually, he testified, the three began smoking together daily and using powder
cocaine weekly. Brennalt recalled that Knight was “a lot more relaxed when he
was on cocaine.” Brennalt maintained, however, that although they had used
cocaine in the days leading up to the Kunkel murder, Knight had not used any on
the day of the killing. 2
Finally—among the lay witnesses—Knight presented (again) his sister,
Theresa Scott Fowler. In her postconviction testimony, she explained that there
2
Brennalt gave ambiguous testimony regarding whether Knight used marijuana on the day of
Kunkel’s murder. When asked whether he smoked marijuana on that day or observed Knight or
Pearson doing so, he responded, “Yes, I did.” Brennalt’s answer could mean either that he
smoked marijuana—implying that the others did not—or, by contrast, that he saw the others
smoking. In any event, Brennalt testified clearly that Knight had not used any cocaine on the
day of the murder.
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was more extensive childhood neglect than she had described at sentencing. She
discussed Knight’s relationship with his parents—in particular his father, who
couldn’t handle him and sent him back to live with his single mother, where he
encountered a succession of boyfriends and stepfathers. Fowler said that one of
those boyfriends wouldn’t allow Knight to live with them, so Knight lived with
friends and in treehouses in the woods for a time. She also testified to indications
of possible abuse—one boyfriend, she said, was “very touchy-feely with [her],”
and another displayed “inappropriate behavior” with her sister. She concluded, in
sum, that their childhood had “no love, there was no respect, there was no
parenting skills at all.”
Knight also presented three expert witnesses at the postconviction hearing.
Dr. Jonathan Lipman, a neuropharmacologist, testified—in summary—that Knight
must have been under the influence of drugs at the time of the murder. He testified
about Knight’s history of drug abuse, its extent, and its possible effects. Lipman
explained that in preparation for his testimony he met with Knight twice, reviewed
documents, and interviewed witnesses. He noted the importance of third-party
witnesses in assessing drug use, given the tendency of users to underestimate their
own use and symptoms.
In light of the extensive drug-use described in Pearson and Brennalt’s
testimony, Lipman concluded that that Knight must have been “profoundly under
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the influence of cocaine plus alcohol at the time of the offense and leading up to
it.” He testified, in particular, that the murder was the culmination of a four-day
cocaine binge. Lipman also believed that the effects of Knight’s paranoia
combined with his drug use to produce “a nexus where these two things come
together that causes an amplification.” Paranoid people, he said “are much more
vulnerable than [the] rest of us to experiencing the adverse psychotoxic effects of
cocaine.” He concluded that Knight likely suffered illusions, hallucinations, and
delusions while using drugs. In Lipman’s opinion, there was far more extensive
drug use than the evidence at sentencing revealed. All of this led Lipman to agree
with the sentencing court that Knight was severely disturbed at the time of the
murder and unable to conform his conduct to the requirements of the law. Lipman
believed, however, the sentencing court lacked a full understanding of the extent of
these factors. According to Lipman, “cocaine plus alcohol rather massively
increases impulsivity.” Because Lipman is not a psychiatrist and was hired only to
assess Knight’s drug use, he didn’t offer a psychiatric diagnosis of Knight.
Dr. Phillip Harvey testified about “a series of cognitive tests” that he had
conducted on Knight, “looking at intellectual functioning, screening for
psychological impairment, testing reading ability, and measuring his processing
speed.” Harvey explained his view that “all these different tests . . . and subscales”
demonstrated “remarkably consistent performance, at pretty much the median of
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the overall distribution of intelligence.” According to Harvey, the tests showed
that Knight was “clearly in the average range of performance.” As a result, he
said, the “tests [didn’t] reflect any evidence of any decline in functioning from a
higher/better level, like you might see if someone had had a significant traumatic
brain injury, or an adverse impact of substance abuse.” In fact, Harvey expressed
surprise at the lack of impairment, given Lipman’s testimony opining on Knight’s
extensive history of drug abuse. Ultimately, like Lipman, Harvey didn’t offer any
specific diagnosis of Knight. When pressed to discuss possible PTSD, for
example, Harvey noted that Knight had denied any history of trauma or sexual
abuse, which in Harvey’s opinion foreclosed the possibility of PTSD.
Furthermore, Harvey testified that he had not been hired to formally diagnose
Knight.
Finally, Dr. Abbey Strauss testified once again, explaining both his
psychiatric diagnosis of Knight as well as his preparation for the 1998 sentencing
hearing. In terms of preparation, Strauss reiterated that he had been involved in the
Meehan trial and was therefore familiar with Knight long before Sosa contacted
him about the Kunkel trial. He said that his investigation was never rushed and
that he was never denied any time or resources by Sosa or the court. In the same
vein, he confirmed that his presentation to the sentencing court was not “truncated”
in any way. On the contrary, Strauss emphasized his recollection that the
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sentencing judge “was very hungry for as much information as he could get.” In
fact, the only difficulty that Strauss could recall resulted from Knight’s own non-
cooperation during evaluations.
Strauss testified that in preparation for the postconviction hearing, he
reviewed the 1998 trial record, Knight’s new witnesses’ testimony, and the
Williams affidavit. None of it, he said, altered his original paranoia diagnosis.
Strauss testified, for instance, that while the Williams affidavit “may have
confirmed some of [his] suspicions about the etiology of [Knight’s] conditions,” it
did not result in any change to his expert opinion. In addition, he said that “the
reaffirmation of [his] diagnostic notion was reinforced by speaking to Dr. Lipman
and [Dr.] Harvey,” Knight’s new postconviction experts. In sum, Strauss
explained that the postconviction evidence was consistent with and confirmed his
original paranoia diagnosis—he agreed that his “global opinions” were “really
identical to what [he] expressed . . . at the penalty phase of this case.” The same
was true of the mitigating factors—in Strauss’s opinion, due to his paranoia,
Knight had an impaired ability to conform his conduct to the law and was
emotionally disturbed, both factors that the sentencing court had given mitigating
weight.
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2
After the multi-day hearing, the state postconviction court issued its ruling
denying all of Knight’s claims—including, as relevant here, his ineffective-
assistance-of-counsel claim.
Significantly for our purposes, the postconviction court made several
credibility determinations. See Consalvo v. Sec’y for Dept. of Corr., 664 F.3d 842,
845 (11th Cir. 2011) (“Determining the credibility of witnesses is the province and
function of the state courts, not a federal court engaging in habeas review.”). First,
the court “f[ound] Pearson’s testimony to lack credibility and credit[ed] the
testimony of Brennalt,” who “was emphatic that they did not use drugs on the day
of the homicide, though they had in the days leading up to it.” Second, the court
“d[id] not find Dr. Lipman’s testimony to be credible.” “Not only,” the court
found, “were Dr. Lipman’s assertions based upon the testimony of another non-
credible witness”—meaning Pearson—but Lipman’s expertise and methods were
lacking. In particular, Lipman “admit[ted] that there was no toxicological evidence
of [Knight’s] drug abuse and that any information related to the abuse came solely
from reports of people.” And, the court observed that “[d]uring the hearing,
[Knight himself] objected to the use of any information used by Dr. Lipman
because he did not complete his evaluation of [Knight] nor did [Knight] believe he
could ‘offer anything relevant to [his] claim.’” Third, and finally, the court “gave
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little to no weight to” Fennell’s testimony, which “was solely related to the
conditions at Eckerd at the time [Knight] may or may not have been present.”
The state postconviction court ultimately held that Knight “ha[d] no basis to
assert a change in the outcome of the penalty phase or change in which aggravators
were used when all that was presented was a reiterated diagnosis and new experts,
one of which submitted a non-clinical observation not supported by objective
data.” Accordingly, it denied Knight’s ineffective-assistance claim.
C
Knight appealed six of his postconviction claims to the Florida Supreme
Court, which affirmed the trial court’s denial. Knight, 211 So. 3d at 19.
Concerning Knight’s ineffective-assistance-of-counsel claim, the court correctly
framed the two-part Strickland analysis—which it labeled “deficient performance
and prejudice”—and proceeded to analyze the postconviction witnesses’ testimony
in connection with the first, performance prong.
Id. at 8–10.
The state supreme court began by noting that it would be “highly deferential
to the postconviction court on issues of credibility” and would defer to “factual
findings where supported by competent, substantial evidence.” Id. at 8–9. The
court therefore deferred to the postconviction court’s finding that Lipman and
Pearson were not credible and agreed that Fennell’s testimony should be given
“little to no weight.”
Id. at 10.
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Considering the remainder of the postconviction evidence, the court held
that “Knight ha[d] not demonstrated deficient performance as to any aspect of [the]
ineffectiveness claim” and, therefore, was “not entitled to relief.” Id. at 10. With
respect to the experts, the court concluded that “[p]ostconviction counsel’s ability
to find additional experts who, [he] argue[d], provide[d] more favorable testimony
d[id] not make penalty phase counsel’s performance deficient.”
Id. at 9 (citing
Dufour v. State,
905 So. 2d 42, 58 (Fla. 2005)). The court did not specifically
analyze each lay witness but, after dismissing Pearson and Fennell, concluded that
the remaining testimony failed to establish deficient performance.
Id. at 10.
Although Fowler’s postconviction testimony, for example, presented Knight’s
difficult childhood in greater detail than she had at sentencing, the state supreme
court agreed with the postconviction court that “counsel cannot be deemed
ineffective for failing to present mitigation that only became available after a
family member had time to reflect on her original testimony.”
Id.
The court did not analyze Strickland’s prejudice prong. Given that “Knight
ha[d] not demonstrated deficient performance as to any aspect of this
ineffectiveness claim,” the court held that “he [was] not entitled to relief” and
therefore, that “[a] discussion of prejudice [was] unnecessary.”
Id.
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III
Having exhausted his avenues for relief in state court, Knight filed a federal
habeas corpus petition under 28 U.S.C. § 2254. The district court denied all claims
and, separately, denied Knight a certificate of appealability. We then granted
Knight a certificate of appealability with regard to one claim—the ineffective-
assistance-of-counsel claim now before us.
A
Strickland requires an ineffective-assistance claimant “to show both that his
counsel provided deficient assistance and that there was prejudice as a result,” and
in considering the claim, the reviewing court is charged with evaluating the
lawyer’s performance through a “most deferential” lens. Harrington v. Richter,
562 U.S. 86, 104, 105 (2011) (“Unlike a later reviewing court, the attorney
observed the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.”). Under
§ 2254(d), this Strickland-based deference concerning a lawyer’s performance is
“doubl[ed]”—compounded.
Id. at 105 (quotation omitted). “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Id. at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). “The
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question,” therefore, “is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. at 105.
Things are a little bit different here because the Florida Supreme Court
expressly declined to analyze Strickland’s second prong, prejudice. Knight, 211
So. 3d at 10. Although some portions of that court’s opinion might be understood
as a mixed assessment of both prongs—at times suggesting, perhaps, that Sosa’s
performance wasn’t deficient because Knight hadn’t demonstrated prejudice—we
will take the Florida Supreme Court’s decision—and its statement that because
“Knight ha[d] not demonstrated deficient performance . . . [a] discussion of
prejudice [was] unnecessary”—at face value.
Id. Accordingly, “our review is not
circumscribed by a state court conclusion with respect to prejudice,” Wiggins v.
Smith,
539 U.S. 510, 534 (2003), and we must review that prong de novo. See
Rompilla v. Beard,
545 U.S. 374, 390 (2005) (“Because the state courts found the
representation adequate, they never reached the issue of prejudice, and so we
examine this element of the Strickland claim de novo.” (citation omitted)). Any
analysis of deficiency—which the Florida Supreme Court expressly addressed—of
course remains subject to the “doubly deferential” standard. 3
3
To be clear, this case provides us no occasion to “look through” the Florida Supreme Court’s
decision and defer to the state trial court’s prejudice determination under Wilson v. Sellers,
138
S. Ct. 1188, 1196 (2018). Wilson addressed the question how a federal habeas court should deal
with the circumstance in which a state supreme court’s decision “does not come accompanied by
reasons”—where, for instance, it consists in only “a one-word order.”
Id. at 1192. Here, by
contrast, we are confronted with a reasoned opinion from the Florida Supreme Court that
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B
We think it simplest and most straightforward to start, in this case, from the
other end of the Strickland standard. For purposes of our analysis, we will simply
assume (without deciding) that Sosa’s “representation fell below an objective
standard of reasonableness” sufficient to establish deficient performance, Porter,
558 U.S. at 38 (quoting
Strickland, 466 U.S. at 688), and focus our assessment on
the prejudice prong. See
Strickland, 466 U.S. at 697 (“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.”). For reasons we will
explain, we conclude that even under a de novo standard, Knight has failed to meet
his burden to “show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Porter, 558 U.S. at 38–39 (quoting
Strickland, 466 U.S. at 694).
In evaluating prejudice, our task is to review the new evidence presented by
Knight and then “reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Cullen v. Pinholster, 563 U.S. 170, 198 (2011)
(quoting
Wiggins, 539 U.S. at 534). “[T]he question is whether there is a
addresses Knight’s ineffective-assistance claim on the merits. We take the Florida Supreme
Court’s decision just as we find it—and under Wiggins and Rompilla, because that court declined
to address Strickland’s prejudice prong, we must consider that issue de novo. See also Johnson
v. Secretary,
643 F.3d 907, 930 & n.9 (11th Cir. 2011) (likewise explaining that where a state
supreme court’s decision addresses only one of Strickland’s two prongs, a federal habeas court
must consider the unaddressed prong de novo).
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reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. (ellipses in original) (quoting
Strickland, 466 U.S. at 695).
After carefully comparing the evidence presented at Knight’s sentencing to
that adduced on postconviction review, we conclude that the state trial court did
not err when it concluded at sentencing that the aggravating circumstances “far
outweigh the mitigating circumstances.” Knight, No. 97-5175 (Sentencing Order).
Knight’s postconviction evidence confirms the mitigation evidence that Sosa
originally presented, but it does not support any new mitigating factors. At the
same time, the aggravating factors found by the sentencing court remain
unchallenged and unaltered. As we will explain, therefore, the overall balance
remains essentially unchanged, meaning that there is no “reasonable probability”
that the sentencing court would have opted for life, rather than death. Porter, 558
U.S. at 38–39 (quoting
Strickland, 466 U.S. at 694).
1
We will first examine the mitigation side of the ledger. None of Knight’s
postconviction evidence establishes any new mitigating factors. Recall that the
sentencing court found two statutory mitigating factors—(1) that Knight was under
the influence of extreme mental or emotional disturbance and (2) that his capacity
to appreciate the criminality of his conduct or conform it to the requirements of the
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law was impaired. It also gave weight to several non-statutory mitigating factors—
among them Knight’s troubled childhood, that he had the love and support of his
family, and that a death sentence would be disparate compared to the lighter
sentences given to his coconspirators.
Knight initially argues that his postconviction evidence establishes a greater
drug dependency than the sentencing evidence revealed and possible childhood
sexual abuse of which the sentencing court was unaware. We are not convinced.
Knight’s contentions are neither well supported nor particularly revelatory.
The drug-related argument rests on a shaky foundation—namely, on the
testimony of Pearson, Brennalt, and Lipman. Like the Florida Supreme Court, we
must defer to the state postconviction court’s credibility determinations. See
Knight, 211 So. 3d at 9–10;
Consalvo, 664 F.3d at 845 (“Federal habeas courts have
no license to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them.” (quotation omitted)). 4 Because
those determinations are supported by competent and substantial evidence, we
defer to the state courts’ decisions to accord Pearson and Lipman’s testimony little,
if any, weight.
4
To be clear, that is so even under a de novo standard. See
Consalvo, 664 F.3d at 845 (“We
consider questions about the credibility and demeanor of a witness to be questions of fact.”).
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The remaining drug-related testimony adds little. Brennalt testified that he
met Knight through drug dealing and that they often used cocaine and marijuana
together. The sentencing court, however, was well aware of Knight’s drug abuse.
Knight’s mother, Gerheiser, testified that he began using drugs soon after his father
left and that he was even sent to rehab as a teenager. While Brennalt’s testimony
may fill in some of the details of Knight’s drug use, it doesn’t add anything truly
new. More importantly, while Lipman’s expert testimony focused on the effects of
Knight’s cocaine use, Brennalt was insistent that Knight had not used cocaine on
the day of Kunkel’s murder.
The alleged abuse at Eckerd—while more explosive and, if true, tragic—is
not particularly well-supported, either. The lone evidence of it is in the form of an
unauthenticated affidavit from a one-time student at Eckerd, Keith Williams, who
alleged that a boy named Ronald Knight suffered horrific abuse while there.
Williams’s affidavit, though, doesn’t provide any real details about the “Ronald
Knight” that it describes—e.g., race, hair or eye color, years of attendance, etc.—
and we thus have no firm indication that the individual named there is in fact the
defendant. The uncertainty is compounded by the testimony of Zebedee Fennell,
an Eckerd administrator, who stated that although there was an African-American
boy named Ronald Knight at the school, he didn’t recall the defendant, who is
white. Moreover, the postconviction court excluded the Williams affidavit on
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hearsay grounds, and in evaluations with his experts, Knight himself denied that he
had suffered any traumatic abuse.
Even if we were to accept the Williams affidavit as true for the purposes of
our analysis, it is, as Dr. Strauss testified on postconviction, merely “consistent
with some of the suspicions that [experts] had [in 1998] about what happened to
Mr. Knight when he was a teenager.” Those “suspicions” were aired at sentencing.
Mental-health counselor Susan Lafehr-Hession testified that Knight’s mental
duress “likely had to do with . . . whatever happened at [Eckerd] that ended up in
having his testicle amputated.” Knight’s mother Gerheiser had also discussed his
injury with the sentencing court, though she blamed it on an accident. Even after
reading Williams’s affidavit, Strauss was adamant that while it offered an
explanation “about the etiology of [Knight’s] conditions,” it did not “suggest that
anything ha[d] changed” in his diagnosis.
Strauss’s testimony regarding the alleged abuse—that it strengthened and
confirmed his earlier conclusion but didn’t fundamentally change anything—is
consistent with the balance of his postconviction testimony. After hearing from the
new witnesses, reading the new experts’ reports, and reviewing all other available
evidence, Strauss agreed that his “global opinions [were] really identical to what
[he] expressed to Judge Garrison in 1998, at the penalty phase of the case.” His
diagnosis remained unaltered—Knight, he said, suffered from an “undercurrent of
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a paranoid disorder” that involved an inability to trust others and supported
findings that Knight was under extreme mental or emotional distress at the time of
the murder and was unable to conform his conduct to the law. That is exactly what
the sentencing court found in 1998.
The remainder of the postconviction witnesses likewise offered nothing in
the way of mitigation that was fundamentally new or particularly revelatory. Dr.
Phillip Harvey, who administered a series of cognitive tests to Knight, simply
found that Knight was in the average range of intelligence and ability. Knight can
hardly be said to have been prejudiced by Sosa’s failure to include such test results
at sentencing.
So too with respect to Knight’s sister, Theresa Scott Fowler. Fowler, the
only witness other than Strauss to appear at both the sentencing and postconviction
hearings, stated during the latter that there was more extensive childhood neglect
than she had previously described. For example, whereas she testified at
sentencing that their mother Karen Gerheiser did the best that she could as a single
parent and that despite some neglect there was never any abuse, at the
postconviction hearing her opinion of Gerheiser had soured considerably—there
was “no love,” “no respect,” and “no parenting skills at all.” As she did at
sentencing, she discussed the revolving door of stepfathers and boyfriends but
offered more detail—some of them may have abused Fowler and her sister, and
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one refused to let an adolescent Knight live with them. Fowler’s postconviction
testimony adds detail and texture, but nothing fundamentally new. The sentencing
court had more than enough mitigating evidence before it to find that Knight
“came from a broken home and had a less than ideal childhood.” Knight, No. 97-
5175 (Sentencing Order). What the sentencing court found dispositive, however,
was the lack of “evidence or testimony that this had any bearing on the defendant’s
criminal behavior in this case.” Id. Fowler’s postconviction testimony adds little
on that score.
* * *
At the end of this exhaustive review of Knight’s postconviction evidence,
we are left with the same mitigating factors that the sentencing court credited.
First, we have the statutory factors—that Knight suffered from extreme mental or
emotional distress and an impaired ability to conform his conduct to the
requirements of the law, both connected to his paranoia. Second, we have the
“other factors in the defendant’s background that would mitigate against
imposition of the death penalty,” Fla. Stat. Ann. § 921.141(6)(h) (1996)—among
them (1) that Knight had a troubled childhood, which began with his father’s
abandonment, featured a rotation of father-figures of dubious repute, and
culminated in failed remedial youth programs; (2) that despite this past, he had the
love and support of his family; and (3) that a death sentence would be disparate
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compared to Knight’s coconspirators Brennalt and Pearson, who both received
only short sentences for their parts in Kunkel’s murder. The only impact that the
postconviction evidence can fairly be said to have is in filling out the details
pertaining to these same, preexisting factors. See Cullen, 563 U.S. at 200–01
(noting that, because “[petitioner’s] ‘new’ evidence largely duplicated the
mitigation evidence at trial,” and “basically substantiate[d] the testimony of” his
family, there was “no reasonable probability that [it] would have changed the
jury’s verdict”).
Knight’s failure to adduce significant new mitigating evidence stands in
contrast to cases in which courts have concluded that petitioners met their burden
under the prejudice prong. In Rompilla v. Beard, for example, the petitioner’s
postconviction evidence established, for the first time, that he suffered from mental
retardation due to organic brain damage (and probably fetal alcohol syndrome, as
well), a substantially impaired ability to appreciate criminality and conform
conduct to the law, alcoholism, and possible schizophrenia. 545 U.S. at 391–93.
In those circumstances, it went “without saying that the undiscovered mitigating
evidence, taken as a whole, might well have influenced the jury’s appraisal of [the
defendant’s] culpability, and the likelihood of a different result if the evidence had
gone in is sufficient to undermine confidence in the outcome actually reached at
sentencing.”
Id. at 393 (quotations omitted); see also
Porter, 558 U.S. at 33
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(“Unlike the evidence presented during Porter’s penalty hearing, which left the
jury knowing hardly anything about him other than the facts of his crimes, the new
evidence described his abusive childhood, his heroic military service and the
trauma he suffered because of it, his long-term substance abuse, and his impaired
mental health and mental capacity.”).
By contrast, Knight’s “new” mitigation evidence merely strengthens—
corroborates, confirms—the mitigating circumstances that Sosa presented at
sentencing. The credible postconviction testimony is largely duplicative of the
sentencing-phase evidence, and establishes no new mitigating factors.
2
Knight’s failure to bring forward any truly new mitigating evidence is
stacked against the aggravating factors that the sentencing court found, all of which
remain unchallenged. First, Knight “was previously convicted of another capital
felony” for the murder of Brendan Meehan. Fla. Stat. Ann. § 921.141(5)(b)
(1996). Second and third, he murdered Kunkel while in the commission of a
robbery, § 921.141(5)(d), and “for pecuniary gain,” § 921.141(5)(f). And fourth,
the execution-style murder “was committed in a cold, calculated, and premeditated
manner without any pretense of moral or legal justification.” § 921.141(5)(i).
What the sentencing court said in 1998 remains true today: “The defendant chose
the ruse to lure the victim, chose the victim, chose the time and place of the
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shooting and the manner of death for Richard Kunkel. . . . There was no possible
claim of justification or excuse for the defendant’s actions.” Knight, No. 97-5175
(Sentencing Order). Not only did these factors “far outweigh” the mitigating
evidence, but any one of them “standing alone, would outweigh the minimal
mitigating evidence in this case.” Id.
In this respect, this case is critically different from Porter, on which Knight
heavily relies. There, during its review, the Florida Supreme Court had eliminated
the aggravating factor that the defendant’s crime was especially “heinous,
atrocious, or cruel,” finding it unsupported by the evidence. Porter v. State,
564
So. 2d 1060, 1063 (Fla. 1990); see Fla. Stat. Ann. § 921.141(5)(h) (1996).
Accordingly, in its analysis of prejudice the United States Supreme Court
concluded that the new mitigating factors established by Porter’s postconviction
evidence, combined with the “reduced [ ] ballast on the aggravating side,”
demonstrated “a reasonable probability that the advisory jury—and the sentencing
judge—would have struck a different balance.”
Porter, 558 U.S. at 42 (quotation
omitted). Here, by contrast, the aggravating factors that underlay Knight’s death
sentence remain unchallenged and unchanged.
* * *
Unlike the petitioners in the cases on which he relies, Knight’s
postconviction hearing evinced no new mitigating factors, and he does not
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challenge any aggravating factor. Even if we believed Sosa’s performance to be
deficient, Knight has failed to carry his burden to establish a “reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.”
Strickland, 466 U.S. at 695. Because he has failed to establish prejudice, his
ineffective-assistance-of-counsel claim fails.
IV
Because we conclude that Knight has failed to prove the prejudice
component of his ineffective-assistance-of-counsel claim, we affirm the district
court’s denial of his § 2254 habeas petition.
AFFIRMED.
35
