[PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JANUARY 6, 2011
                             No. 08-15868                     JOHN LEY
                       ________________________                CLERK

                   D. C. Docket No. 08-14036-CV-WPD

HAROLD LEE HARVEY, JR.,



                                                         Petitioner-Appellant,

                                  versus

WARDEN, UNION CORRECTIONAL INSTITUTION
WARDEN, FLORIDA STATE PRISON,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,

                                                      Respondents-Appellees.

                       ________________________

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

                             (January 6, 2011)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:

      Harold Lee Harvey, Jr. is an inmate on Florida’s death row, having been

convicted of two counts of first-degree murder in 1986. This case comes to us

after seventeen years of post-conviction proceedings in the Florida courts,

including two evidentiary hearings and two appeals to the Florida Supreme Court.

Before this court, Harvey appeals the denial of his petition for a writ of habeas

corpus by the United States District Court for the Southern District of Florida.

Each of his four claims for relief focuses on the constitutional deficiency of his

trial counsel during both the guilt and penalty phases of his trial.

      Part I discusses the facts of Harvey’s crime and the procedural history. Part

II discusses the relevant standard of review and general principles for claims of

ineffective assistance of counsel. Part III addresses Harvey’s claim that trial

counsel failed to strike a biased juror. Part IV addresses Harvey’s claim that trial

counsel conceded Harvey’s guilt during his opening statement to the jury without

Harvey’s consent. Part V addresses Harvey’s two claims that trial counsel did not

conduct an adequate investigation into mitigation evidence, with part V.A

discussing trial counsel’s social history investigation and part V.B discussing trial

counsel’s mental health investigation. Part VI concludes.

                                          I.

                                           2
      The Florida Supreme Court described the facts of Harvey’s crime as

follows:

             On February 23, 1985, Harold Lee Harvey met with Scott
      Stiteler, his codefendant at trial, and drove to the home of William
      and Ruby Boyd, intending to rob them. Upon their arrival, Stiteler
      knocked on the front door. In the meantime, Harvey grabbed Mrs.
      Boyd as she was walking around from the side of the house and took
      her into the house where Mr. Boyd was located. Harvey had a pistol
      and Stiteler was holding Harvey’s AR-15 rifle which had recently
      been converted into an automatic weapon. Harvey and Stiteler told
      the Boyds they needed money. Mr. Boyd then went into the bedroom
      and got his wallet. Sometime during the course of the robbery,
      Harvey and Stiteler exchanged guns so that Harvey now had
      possession of the automatic weapon. After getting the money from
      the Boyds, Harvey and Stiteler discussed what they were going to do
      with the victims and decided they would have to kill them. Sensing
      their impending danger, the Boyds tried to run, but Harvey fired his
      gun, striking them both. Mr. Boyd apparently died instantly. Harvey
      left the Boyds’ home but reentered to retrieve the gun shells. Upon
      hearing Mrs. Boyd moaning in pain, he shot her in the head at point
      blank range. Harvey and Stiteler then left and threw their weapons
      away along the roadway.
             On February 27, 1985, Harvey was stopped for a driving
      infraction in Okeechobee County and subsequently placed under
      arrest for the Boyds’ murders. He was read his Miranda rights at that
      time. He was then transported to the Okeechobee County Sheriff’s
      Department and again read the Miranda warning. Harvey was
      questioned and interrogated, and after speaking with his wife, gave a
      statement in which he admitted his involvement in the Boyds’
      murders.

Harvey v. State, 

, 1084 (Fla. 1988).




                                        3
         On March 7, 1985, an Okeechobee County grand jury indicted Harvey and

Stiteler on two counts of first-degree murder, under both premeditation and felony

murder theories. The two defendants were tried separately. Harvey’s trial and

1993 post-conviction proceedings took place in the Circuit Court for Indian River

County1; Harvey’s 1998 post-conviction proceedings took place in the Circuit

Court for Okeechobee County. The court appointed Robert Watson, a private

attorney, to represent Harvey.2 Admitted to the bar in 1979, Watson began his

career with the Public Defender’s office3 and worked there until 1981. During his

time there, he represented defendants in ten capital murder cases, always as second

chair.

         Following his appointment, Watson requested and received funds for

private investigators and mental health examinations. He also moved the court to


         1
          Okeechobee County and Indian River County are part of the Nineteenth Judicial Circuit
of Florida. The indictment was returned to the Okeechobee County Circuit Court. Judge Dwight
Geiger, a judge of the Nineteenth Judicial Circuit, was assigned to the case. He presided
throughout the trial and post-conviction proceedings. Judge Geiger transferred the venue for
Harvey’s trial from Okeechobee County to Indian River County due to pre-trial publicity.
         2
          Harvey was originally represented by the Office of the Public Defender, which was
appointed on March 7, 1985. The Public Defender withdrew from Harvey’s representation citing
conflict of interest because it also represented Harvey’s co-defendant, Stiteler. Watson was
appointed on March 25, 1985.
        Watson represented Harvey unassisted. He moved to appoint co-counsel for Phase I
(guilt-phase) on August 20, 1985. The court denied his request on August 29, 1985.
         3
          Watson was an assistant in the Officer of the Public Defender for the Nineteenth
Judicial Circuit.

                                                4
suppress Harvey’s post-arrest confession to the police.4 The court held an

evidentiary hearing on the motion on June 11 and 12, 1986, and denied the motion

on June 13, 1986, before the court concluded the final day of jury selection.

       Jury selection began on June 9 and ended on June 13, 1986. Marlene

Brunetti was chosen as an alternate juror on June 13, 1986. Her voir dire exposed

potential biases but Watson did not move to strike her with a peremptory

challenge or for cause.5 During the trial, a juror took ill and Brunetti was seated

on the jury.

       Harvey’s trial began on June 13, 1986, immediately after jury selection

concluded.6 In his opening statement to the jury, Watson conceded the facts of the

murder, but said that Harvey was not guilty of first-degree murder because he

committed the homicides without premeditation and after the robbery had already

taken place. Instead of first-degree murder, the evidence would show that he was



       4
         Watson filed three motions to suppress Harvey’s statement: the first motion was filed
on June 7, 1985; the second motion was filed on October 9, 1985, and amended the June 7
motion; the third motion was filed on January 29, 1986, and raised different grounds for
suppression. Watson filed several other pre-trial motions not pertinent here.
       5
          Harvey’s first ineffective-assistance claim centers on Watson’s decision to seat Brunetti.
Part III provides Brunetti’s voir dire in detail.
       6
         According to the trial transcript, Brunetti was seated during a court session beginning at
2:00 p.m. on June 13, 1986. Opening statements began during a court session beginning at 2:45
p.m. on the same date.

                                                 5
guilty of second-degree murder.7 Watson presented no evidence during the guilt

phase of the trial and maintained his concession strategy in his closing argument to

the jury. The jury unanimously convicted Harvey of two counts of first-degree

murder.

       The penalty phase for the murder counts began two days later, before the

same jury. The State, in its case in chief, relied on the evidence it presented during

the guilt phase and the testimony of two witnesses to prove aggravating factors. A

prison inmate named Hubert Bernard Griffin testified that, while incarcerated in a

jail cell adjacent to Harvey’s (prior to Harvey’s trial), he saw that Harvey had

written threatening language on the walls of his own cell: “If I can’t kill it then its

already dead.” George Miller, a corrections officer in the same jail corroborated

Griffin’s testimony; he had seen the same writing.

       Watson, in Harvey’s defense, endeavored to show that Harvey was a “good

person,” for whom the murders were an aberration, and thus would be worthy of

mercy. To that end, he called seventeen mitigation witnesses. Sixteen witnesses

were family and friends whose testimony painted the picture of a nice, shy young


       7
        Watson’s opening statement is the subject of Harvey’s second ineffective-assistance
claim. Specifically, Harvey argues that Watson did not get Harvey’s consent to the strategy of
conceding guilt for second-degree murder and, that even if he consented, Watson’s opening
statement actually conceded first-degree murder without his consent. Part IV presents Watson’s
opening statement in greater detail.

                                               6
man, who loved his family very much. Nearly all mitigation witnesses expressed

shock at Harvey’s arrest and said that what he had done did not fit with his

character. Some of these witnesses also portrayed him as being dominated by his

wife of one year—her lifestyle demands serving as motive for robbing the Boyds.

      Watson also called a psychologist, Dr. Frank Petrilla, to testify to the results

of the personality evaluation he performed on Harvey prior to trial. Dr. Petrilla

diagnosed Harvey with “dysthymic disorder, chronic depressive reaction and

dependant and personality disorder.” Dr. Petrilla also noted that Harvey had a

“passive” personality and a below average IQ. He said that Harvey had poor

coping skills that would harm his ability to reason during times of stress.

      The jury recommended the death penalty for each murder by a vote of 11-1.

The court found four aggravating circumstances: the murders were committed (1)

while the defendant was engaged in the commission or an attempt to commit

robbery and burglary, Fla. Stat. § 921.141(5)(d) (1985); (2) for the purpose of

avoiding or preventing a lawful arrest, 

(3) in a cold calculated

and premeditated manner, 

and (4) the murders were especially

heinous atrocious and cruel, 

The court found only one

mitigating factor—the non-statutory catch-all, “any other aspect of the defendant’s




                                          7
character or record”8: Harvey’s low IQ (86), poor education and social skills, and

inability to reason abstractly, combined with low self-confidence and feelings of

inadequacy. The court rejected three statutory mitigating factors: (1) lack of

significant history of prior criminal activity, 

(2) age of the

defendant, 

and (3) murder committed under the influence of

extreme mental or emotional disturbance, 

The court found

that the aggravating factors outweighed the mitigating factors and sentenced

Harvey to death on both murder counts.

       Harvey appealed his murder convictions and death sentences to the Florida

Supreme Court. His brief raised claims not at issue in this appeal. On June 16,

1988, the Florida Supreme Court affirmed. 

. The

United States Supreme Court denied certiorari. Harvey v. Florida, 

,

, 

(1989). The Governor signed Harvey’s

execution warrant on March 29, 1990.




       8
         This mitigating factor was subsequently codified in Fla. Stat. § 921.141(6)(h) (2008)
(“The existence of any other factors in the defendant's background that would mitigate against
imposition of the death penalty.”).



                                                8
      On August 27, 1990, Harvey filed a motion for post-conviction relief under

Florida Rule of Criminal Procedure 3.850 in the trial court.9 In his motion, Harvey

raised seventeen claims—several with various subparts.10 The court dismissed as

      9
           Harvey filed a corrected copy of that motion on September 24, 1990.
      10
           The Florida Supreme Court summarized Harvey’s claims:

      (1)(a) trial counsel was ineffective for failing to make several arguments in
      support of his motion to suppress Harvey’s confession; (1)(b) trial counsel was
      ineffective for failing to challenge juror Brunetti for cause or peremptorily after
      she stated she could not be impartial; (1)(c) trial counsel was ineffective for
      failing to object to the trial court’s change of venue to Indian River County; (1)(d)
      trial counsel was ineffective for making claims in his opening statement that were
      not later established; (1)(e) trial counsel was ineffective for failing to raise a valid
      objection to the admission of hearsay testimony relating to Harvey’s pretrial
      escape; (1)(f) trial counsel was ineffective for admitting Harvey’s guilt during
      opening statements; (2)(a) trial counsel was ineffective for failing to adequately
      investigate and present mitigating evidence; (2)(b) trial counsel was ineffective
      for failing to establish the substantial domination mitigating factor; (2)(c) trial
      counsel was ineffective during his penalty-phase closing argument; (2)(d) trial
      counsel was ineffective for failing to waive the no significant history mitigating
      factor; (2)(e) trial counsel was ineffective for allowing the State to anticipatorily
      rebut evidence of remorse when such an argument was not made; (2)(f) trial
      counsel was ineffective for failing to present evidence or argument at the final
      sentencing hearing; (2)(g) trial counsel was ineffective for failing to investigate
      and confirm that the victims overheard Harvey and the co-defendant deciding to
      kill them; (3) trial counsel was ineffective for failing to ensure that Harvey
      received a competent mental health examination; (4) Harvey was tried by a de
      facto eleven-person jury; (5)(a) the trial court rendered trial counsel ineffective by
      refusing to hear and rule on Harvey’s motion to suppress prior to jury selection;
      (5)(b) the trial court rendered trial counsel ineffective by denying counsel’s
      motion for co-counsel; (5)(c) the trial court rendered trial counsel ineffective by
      denying counsel’s motion for continuance made between the guilt and penalty
      phases of the trial; (6) the trial court failed to expressly evaluate all mitigating
      factors, failed to find each proposed mitigating circumstance, and failed to weigh
      those factors against the aggravating factors; (7) fundamental changes in the law
      require resentencing because the trial court improperly rejected the no significant
      history mitigating factor based on offenses committed after the murders but before
      sentencing; (8)(a) the trial court failed to properly instruct the jury regarding the

                                                 9
facially insufficient all claims save one: that Watson rendered ineffective

assistance of counsel in not striking the “admittedly biased juror,” Brunetti. The

court held an evidentiary hearing on that claim on March 11, 1993. On March 17,

1993, the court denied the claim and Harvey’s Rule 3.850 motion.

       Harvey appealed the trial court’s Rule 3.850 rulings to the Florida Supreme

Court. On February 23, 1995, it rendered its decision. Harvey v. Dugger, 656 So.



       heinous, atrocious, or cruel and cold, calculated, and premeditated aggravating
       factors; (8)(b) the penalty-phase jury instructions and the prosecutor’s closing
       argument precluded the jury from considering sympathy in recommending a
       sentence; (8)(c) the trial court erred in refusing to answer two jury questions
       relating to when Harvey would be eligible for parole and whether life sentences
       would be imposed consecutively; (8)(d) the trial court erred in denying Harvey’s
       special requested penalty-phase instructions; (9) the penalty-phase jury
       instructions improperly shifted the burden to Harvey to prove that the mitigating
       factors outweighed the aggravating factors, and trial counsel was ineffective for
       failing to object to them; (10) the heinous, atrocious, or cruel instruction was
       unconstitutionally vague, and trial counsel was ineffective for failing to object to
       the lack of a limiting instruction; (11) the cold, calculated, and premeditated
       instruction was unconstitutionally vague, and trial counsel was ineffective for
       failing to object to the lack of a limiting instruction; (12)(a) the State withheld the
       fact that witness Griffin had been used as a jail-house informant in other cases;
       (12)(b) the State withheld the fact that Harvey requested counsel after his arrest;
       (13) Florida Rule of Criminal Procedure 3.851 violates Harvey’s rights to due
       process, equal protection, and access to the courts; (14) the jury was improperly
       instructed that its role was merely advisory; (15) the State improperly argued
       victim-impact evidence; (16) trial counsel was ineffective for failing to object to
       the admission of evidence that Harvey threatened to kill a fellow inmate; and (17)
       Florida’s system for funding the defense of indigent capital defendants violates
       due process and equal protection.

Harvey v. Dugger, 

, 1254–55 (Fla. 1995). The court considered Harvey’s
ineffective assistance claims to have been prosecuted under the standard established by
Strickland v. Washington, 

, 

, 

(1984). 

.

                                                 10
2d 1253 (Fla. 1995). The court affirmed the trial court’s denial of most of

Harvey’s claims, but found that an evidentiary hearing would be necessary to

resolve four ineffective assistance claims, three of which are pertinent here: (1)

Watson rendered ineffective assistance by conceding Harvey’s guilt during his

opening statement to the jury without Harvey’s consent; (2) Watson did not

adequately investigate life-history mitigation evidence; and (3) Watson did not

adequately investigate mental health mitigation, which would have included

evidence of organic brain damage. 

      In August 1998, the trial court held an evidentiary hearing on the designated

ineffective assistance claims, judging Watson’s performance under the standard

established by Strickland v. Washington, 

, 

, 

674 (1984). The court found that Watson’s performance satisfied that standard

and, in January 1999, entered an order denying each of the designated claims.

Harvey appealed the court’s rulings to the Florida Supreme Court.

      On July 3, 2003, the Florida Supreme Court reversed the trial court’s denial

of Rule 3.850 relief as to the first of the designated ineffective assistance claims,

vacated Harvey’s murder convictions and death sentences, and remanded the case

for a new trial. Harvey v. State, No. SC95075, 2003 Fla. LEXIS 1140 (Fla. July 3,

2003). It held that Watson’s opening statement conceded first-degree murder and


                                          11
that the concession was the “functional equivalent of a guilty plea.” 

As

such, Watson did not “subject the prosecution’s case to meaningful adversarial

testing” under United States v. Cronic, 

, 

, 

657 (1984).   Harvey, 2003 Fla. LEXIS 1140, at *11. Harvey therefore did not

need to show prejudice under Strickland; rather, the court presumed prejudice

under Cronic. Harvey, 2003 Fla. LEXIS 1140, at *11. The court relied on Nixon

v. Singletary, 

(Fla. 2000), which held that concessions without the

defendant’s consent constitute ineffective assistance per se under Cronic. Harvey,

2003 Fla. LEXIS 1140, at *11–12.

      The State petitioned the Florida Supreme Court for rehearing. While its

petition was pending, the United States Supreme Court reversed the Florida

Supreme Court’s per se rule in Florida v. Nixon, 

, 187, 

, 560, 

(2004). Relying on this decision, the Florida

Supreme Court vacated its 2003 opinion and, on June 15, 2006, rejected the

ineffective assistance claim at issue in a new opinion. Harvey v. State, 

, 940 (Fla. 2006). The court adhered to its earlier finding that Watson’s

opening statement conceded first-degree murder without Harvey’s consent, 

but found that Harvey had not shown Strickland prejudice because the

jury received in Harvey’s confession the same information contained in Watson’s


                                         12
concession, 

The court rejected the claims that Watson failed to

investigate adequately Harvey’s life-history and mental health mitigation

evidence. 

948.

       Two justices concurred in part and dissented in part. In their view,

Watson’s concession to first-degree murder and “superficial [mitigation]

investigation” left “no genuine adversarial testing of the appropriate penalty.” 

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

       On January 18, 2008, Harvey petitioned the United States District for the

Southern District of Florida for a writ of habeas corpus. See 28 U.S.C. § 2254(d).

His petition presented twelve claims,11 including the four ineffective assistance of

counsel claims raised in this appeal. The district court denied his petition. He

then requested a certificate of appeal under 28 U.S.C. § 2253(c) for six of his


       11
           Harvey’s claims were that Watson had rendered ineffective assistance of counsel in (1)
failing to perform a mental health investigation; (2) failing to perform a non-mental health
investigation; (3) conceding guilt in the opening statement without first disclosing the strategy to
Harvey or obtaining his consent; (4) failing to strike an admittedly biased juror, Brunetti; (5)
failing to use a booking sheet that allegedly indicated Harvey’s request for a lawyer before his
interrogation by police as a basis to suppress his confession; (6) failing to object to the trial
court’s change of venue; (7) making claims in the opening statement that were not proven to the
jury during Harvey’s case in chief; (8) failing to raise a valid objection to certain hearsay
testimony; (9) allowing the State to anticipatorily rebut the non-statutory mitigating circumstance
of remorse when the defense did not argue that such mitigating circumstance existed; (10) failing
to investigate the evidence supporting the heinous, atrocious and cruel aggravating circumstance;
and (11) failing to waive the statutory mitigating circumstance of no significant history of prior
criminal activity, and that the trial court (12) violated his Sixth Amendment rights to an
“impartial and qualified jury” by failing either to strike juror Brunetti sua sponte or obtain an on-
the-record waiver from Harvey when it seated juror Brunetti.

                                                 13
twelve claims. Five were claims that Watson rendered ineffective assistance of

counsel in (1) failing to investigate mental health mitigation, (2) failing to

investigate non-mental health mitigation, (3) conceding guilt in his opening

statement to the jury without Harvey’s prior authorization, (4) failing to strike

juror Brunetti, and (5) failing to introduce a booking sheet suggesting that Harvey

requested a lawyer before confessing to the murders. The final claim was that the

trial court erred in (6) failing sua sponte to strike juror Brunetti.12 The district

court granted a certificate of appeal for issues (1)–(4) and (6), but denied the

certificate for issue (5). This appeal followed.

                                                 II.

                                                 A.

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs

Harvey’s habeas corpus petition. Under 28 U.S.C. § 2254(d), a federal court

cannot overturn a state court conviction on collateral attack unless the state court

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




      12
           Harvey did not address this argument in his brief. It is therefore waived.

                                                 14
       (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.

28 U.S.C. § 2254(d)(1)–(2). As the Supreme Court has instructed,

       Under the “contrary to” clause, a federal habeas court may grant the
       writ if the state court arrives at a conclusion opposite to that reached
       by this Court on a question of law or if the state court decides a case
       differently than this Court has on a set of materially indistinguishable
       facts. Under the “unreasonable application” clause, a federal habeas
       court may grant the writ if the state court identifies the correct
       governing legal principle from this Court’s decisions but
       unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 

, 412–13, 

, 1523, 

(2000).

       In determining whether we should overturn the state courts’ rejection of the

claim at issue, we review the highest state court decision disposing of the claim.

See Shere v. Fla. Dep’t of Corr., 

, 1310 (11th Cir. 2008) (“[O]ur

review is limited to examining whether the highest state court’s resolution of a

petitioner’s claim is contrary to, or an unreasonable application of, clearly

established law . . . .”). The Florida Supreme Court’s 1995 and 2006 decisions13

are therefore our reference points.14

       13
          Harvey v. Dugger, 

(Fla. 1995), and Harvey v. State, 

(Fla. 2006).
       14
           Although we are reviewing the district court’s decision denying Harvey habeas corpus
relief, because that decision was based solely on the district court’s determination that the Florida

                                                 15
                                               B.

       The Sixth Amendment to the United States Constitution states that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance

of Counsel for his defense.”15 U.S. Const. amend. VI. This clause has been

interpreted to mean that the accused shall have the right to the effective assistance

of counsel. See, e.g., McMann v. Richardson, 

, 771 n.14, 

, 1449 n.14, 

(1970) (citations omitted). We determine

whether the accused has received such assistance under the standard for counsel’s

performance established by Strickland v. Washington, 

, 

, 

(1984).

       A valid claim of ineffective assistance of counsel requires a two-part

showing. First, trial counsel’s performance must be deficient, falling below an

objective standard of professional care. 

104 S. Ct. at 2064. Second,

that deficient performance must have prejudiced the outcome of the petitioner’s

trial; but for the deficient performance, there must be a probability that the

Supreme Court’s 1995 and 2006 decisions rejecting those claims could not be overturned under
AEDPA, we are, in effect, standing in the district court’s shoes reviewing those Florida Supreme
Court decisions under AEDPA. See Hightower v. Schofield, 

, 1014 (11th Cir.
2001), vacated and remanded on other grounds, 

, 

, 

(2005).
       15
           The Sixth Amendment provision of the right to counsel has been made applicable to
the States under the Due Process Clause of the Fourteenth Amendment. See Gideon v.
Wainwright, 

, 342–45, 

, 795–97, 

(1963).

                                               16
petitioner’s outcome would be different. 

104 S. Ct. at 2068–69. The

petitioner seeking release bears the burden of proof regarding both deficient

performance and prejudice. Rogers v. Zant, 

, 386 (11th Cir. 1994).

      The performance inquiry will generally boil down to whether trial counsel’s

actions (or inactions) were the result of deficient performance or sound trial

strategy. See 

, 104 S. Ct. at 2065 (“[T]he defendant

must overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” (quoting Michael v. Louisiana,

, 101, 

, 164, 

(1955))). To protect counsel’s

independence, we start with the strong presumption that trial counsel’s

performance was constitutionally adequate. 

underlie this presumption. First, the Supreme Court has

time and again counseled against judging trial counsel’s performance with the

benefit of hindsight. Id.; see also Yarborough v. Gentry, 

, 8, 

, 6, 

(2003) (per curiam) (“The Sixth Amendment guarantees

reasonable competence, not perfect advocacy judged with the benefit of

hindsight.”); Bell v. Cone, 

, 698, 

, 1852, 

914 (2002) (same). Second, trial advocacy is not a science, but an art; there are

few “right” answers in the proper way to handle a trial. 

(“Representation is an art, and an act or omission that is

unprofessional in one case may be sound or even brilliant in another.”).

      This presumption is an evidentiary presumption that carries through the

trial. Chandler v. United States, 

, 1314 n.15 (11th Cir. 2000) (en

banc). Thus, a petitioner must not present evidence merely to refute the

presumption. Rather, the petitioner must present evidence that outweighs the

presumed evidence of competence. Kimmelman v. Morrison, 

, 384

, 2588, 

(1986) (“[T]he defendant must rebut this

presumption by proving that his attorney’s representation was unreasonable under

prevailing professional norms and that the challenged action was not sound

strategy.”). Therefore, “‘where the record is incomplete or unclear about

[counsel]’s actions, we will presume that he did what he should have done, and

that he exercised reasonable professional judgment.’” 

n.15 (quoting Williams v. Head, 

, 1228 (11th Cir. 1999)).

      We do not apply fixed or rigid rules when evaluating trial counsel’s

performance. 

–89, 104 S. Ct. at 2065. Rather, a

petitioner receives ineffective assistance where the representation “[falls] below an

objective standard of reasonableness,” id. at 

,

reasonableness being the “prevailing professional norms,” Wiggins v. Smith, 539


                                         

, 521, 

, 2535, 

(2003). To put it another

way, trial counsel’s error must be so egregious that no reasonably competent

attorney would have acted similarly. See Wood v. Allen, 

, 1309

(11th Cir. 2008), aff’d 

(2010) (“[O]ther attorneys might have done

more or less . . . or they might have made the strategic calls differently, but we

cannot say that no reasonable attorney would have done as [he] did.” (quoting

)).

                                          III.

      Harvey first claims that his lawyer, Watson, was constitutionally ineffective

because he did not attempt to dismiss—either for cause or with a peremptory

challenge—a biased juror.

                                          A.

      This claim focuses on Juror Marlene Brunetti. Brunetti was chosen as the

first alternate juror, but later replaced a juror excused for illness. During voir dire,

Brunetti expressed an ability to be impartial generally, but stated that the news

media had influenced her views:

      The Court: . . . . Do you have any difficulty in being an alternate
      juror?

      Mrs. Brunetti: Yes, because of the news media.

      ....

                                           19
      The Court: And I will explain to the jury all of the laws which apply
      to this case. Can you follow all of the laws that I’ll explain to the jury
      must be followed and applied by the jury in reaching their verdict if
      you are a juror and assist in the decision of the case?

      Mrs. Brunetti: Yes.

      The Court: Is there anything about the charge that’s made here where
      you might find it to be difficult to be fair and impartial because of that
      charge?

      Mrs. Brunetti: No, not with the charge, no.

      The Court: . . . . Do you have any biases or prejudices for or against
      the state or for or against defendants in general that might affect your
      ability to be a juror here?

      Mrs. Brunetti: Only from the news media.

      The Court: Do you have any biases or prejudices in general?

      Mrs. Brunetti: No.

      ....

      The Court: If you are a juror will you be fair and impartial?

      Mrs. Brunetti: Yes.

      Outside the presence of the seated jurors and prospective alternates, Brunetti

explained her knowledge about the crime and her doubt that she could be

impartial:

      The Court: . . . . Now, do you know anything about this case other
      than from news coverage?


                                         20
Mrs. Brunetti: Just what I read and what I saw on the TV.

....

The Court: What do you recall?

Mrs. Brunetti: Well, I recall that he confessed to doing it and that’s
why I feel that I couldn’t be, you know, impartial about it.

The Court: Why do you think there was a confession?

Mrs. Brunetti: Because I think he did it. I think he did it and he
confessed to doing it.

The Court: Why do you think there was a confession? Was that in the
news coverage?

Mrs. Brunetti: I think I read that he confessed to it, or I saw it on the
TV.

The Court: You know there is more than one person that was
charged?

Mrs. Brunetti: Yes, two. There are two.

The Court: What was the name of the person who confessed; do you
know that?

Mrs. Brunetti: Harvey.

The Court: You’re sure of the name?

Mrs. Brunetti: Yes.

....

The Court: What else do you recall about the case?


                                    21
Mrs. Brunetti: I just recall seeing it and reading it in the paper that
two people were murdered.

The Court: Do you recall any of the incidents about the events?

Mrs. Brunetti: That it was a robbery case. They robbed the people
....

The Court: What you recall about the case or think you recall about
the case, would that affect your ability to be fair and impartial here
and confine your decision in the case only to the evidence and the law
that I will instruct you?

Mrs. Brunetti: I don’t think I could be impartial after reading about it.

....

Mr. Colton16: When you read in the paper or saw on the news that he
had confessed, did it say in what you saw what it was that it [sic] was
in his confession, or just the fact that he had confessed.

Mrs. Brunetti: I think it said that he had confessed to killing them.

Mr. Colton: But did it go into any detail as to what the confession
was?

Mrs. Brunetti: I can’t remember. I don’t think so.

....

Mrs. Brunetti: Just said that he had signed a confession. That he had
been apprehended.

Mr. Colton: One of the instructions on the law that the Judge will
give you is that you’re to put aside anything that you read or heard


16
     State Attorney Bruce Colton.

                                    22
       about the case and form your verdict based on the evidence that you
       heard in the courtroom; could you do that?

       Mrs. Brunetti: I don’t know if I honestly could.

       ....

       Mr. Watson17: What is your present perception as to what happened
       based upon those articles?

       Mrs. Brunetti: Well, I think they broke in, is the best that I can
       remember, and they robbed them or something and then they were
       afraid they would be identified and they killed them.

       ....

       Mr. Watson: When you say that you think he did it, do you mean that
       you think that he shot the people or when you say you think he did it,
       do you mean you think he committed a certain crime?

       Mrs. Brunetti: I feel that he committed the crime that he was charged
       for.

       Mr. Watson: First-degree murder?18



       17
            Harvey’s attorney, Robert Watson.
       18
          Here, Watson was repeating what the court informed the venire before the voir dire of
individual venire persons commenced. The court stated:

              I read to you from the indictment in this case. . . [T]he State of Florida
       charges . . . two persons, only one of whom is being tried at this time, . . . that
       Harold Lee Harvey, Jr. . . . did on the 23d day of February 1985 unlawfully and
       from a premeditated design to effect the death of W. H. Boyd, . . . did kill and
       murder him . . . by shooting him with a rifle. That’s count 1, that’s a charge of
       murder in the first degree.
       ....
              Again the second charge is a charge of murder in the first degree.

                                                23
      Mrs. Brunetti: Yes.

      Mr. Watson: But the Judge hasn’t given you the instructions.

      Mrs. Brunetti: I know.

      Mr. Watson: But from what all you said up there that’s what, you
      know — you’ve come to a conclusion as to what first-degree murder
      is based upon what Mr. Colton and I said?

      Mrs. Brunetti: Yes.

      Mr. Watson: Do you think that that falls into this category?

      Mrs. Brunetti: Yes.

      Mr. Watson: Do you feel because Mr. Colton and I may not have
      explained to you as well as the Judge would later, do you think you
      could follow the Judge’s instructions?

      Mrs. Brunetti: I can’t honestly say that I could have an open mind
      after reading it and seeing it on the news. I have to be honest. I
      wouldn’t want to get on the jury and not say what I feel.

      Watson also questioned Brunetti about her views of the death penalty and

psychology. On the death penalty, Brunetti said, “I’m kind of confused on the

death penalty after listening to all of these different people. I think it’s a deterrent

because a person would not be able to get out to do the same thing again. But I

don’t necessarily believe that two wrongs make a right.”

      On psychology, Brunetti stated that her sister “went to a psychologist for

two years” and that “[her sister] was benefitted” by the experience.


                                           24
      Judge Geiger then asked both attorneys if either would care to challenge

Brunetti:

      The Court: Motions?

      ....

      The Court: Are there any preemptories [sic]?

      ....

      The Court: These two jurors will be our alternate jurors then?

      Immediately after this discussion, Judge Geiger again called the parties to

the bench:

      The Court: Just so I understand, there [are] no motions for cause that
      have been made at this time?

      ....

      The Court: There are no preemptories [sic] at this time?

      Watson did not challenge Brunetti for cause, nor did he use a peremptory

challenge to remove her. Brunetti was then seated as an alternate. A juror fell ill

and Brunetti became the twelfth juror for Harvey’s trial. She voted to convict and

for the death sentence.

      Harvey’s March 11, 1993 Rule 3.850 post-conviction hearing concerned

Watson’s failure to strike Brunetti. Harvey’s post-conviction counsel called James



                                         25
Green, an experienced capital defense attorney, as a witness.19 Green was critical

of Watson’s performance in two areas. First, he said that Watson should have

asked the venire, Brunetti in particular, more questions regarding how strongly

they would weigh a confession. This consideration was vital because, by the time

Brunetti was questioned, the court had denied Watson’s motion to suppress

Harvey’s confession. Green’s second criticism focused on Watson’s strategy.

Green stated that he could not “envision any rational trial strategy . . . to justify

[Watson’s] . . . fail[ure] to challenge Mrs. Brunetti.”

       Watson testified as a State’s witness regarding his overall trial strategy and

his specific strategy regarding Brunetti. His overall strategy was driven by the

confession; once admissible, Watson believed that conviction was certain and that

“it was a pure [penalty phase] jury.” To save Harvey’s life, Watson felt he needed

to preserve credibility with the jury, which would determine not only Harvey’s

guilt, but also recommend life or death. In his opinion as a criminal defense




       19
           Harvey’s attorney also called Gary Patrick Moran, Ph.D., a psychology professor, to
testify regarding the impact a biased juror would likely have on jury deliberations in order to
prove Strickland prejudice. However, the court rejected Moran’s proffered testimony as
irrelevant because Moran could not explain what actually happened inside the jury room in 1986.
The propriety of this ruling is not before us here.
         Moreover, because the reasonableness of counsel’s actions under Strickland is a question
of law for the court to decide, expert testimony regarding performance deficiencies carries little,
if any, weight. See Provenzano v. Singletary, 

, 1332 (11th Cir. 1998).

                                                26
expert, Watson stated that it is not a bad strategy to seat a juror biased regarding

guilt if the juror could be open-minded during the penalty phase.

      Watson could not recall Brunetti’s voir dire, nor could he recall his reasons

for keeping her on the jury. Presented with the record, he recognized that he

“knew that there was not only grounds for cause, but an invitation extended to

[Watson by the court] for cause.” But, Watson testified, “Obviously I made a

decision to keep [Brunetti]. . . . What factors I was considering and which ones I

weighed more heavily than others I can’t tell you . . . .”

      The State Attorney implied one factor—that Watson accepted Brunetti

because she was receptive to psychological testimony. Watson intended to call a

psychologist during the penalty phase. On the stand, Watson neither confirmed

nor denied the implication. Rather, he observed that “she seemed to be certainly

not antagonistic to psychologists or psychology.”

      The court rejected Harvey’s argument that Watson’s failure to challenge

Brunetti constituted ineffective assistance, and denied relief.20 In its March 17,

1993 order denying relief, the court did not provide reasons for its decision,21 but,


      20
           The court’s order also denied relief to Harvey’s other claims.
      21
        The order reads:
      Ordered and Adjudged . . . . That after an evidentiary hearing on Claim IB.
      [ineffective assistance of counsel regarding Brunetti] of defendant’s motion, the
      court determines that defendant is not entitled to relief, defendant having neither

                                                27
instead, attached a 200 page appendix as support. The only portions of the

appendix relevant to Watson’s decision to keep Brunetti were six pages of

Brunetti’s voir dire.

      The Florida Supreme Court affirmed the trial court’s order, holding

      that there was competent and substantial evidence to support the
      lower court’s finding that defense counsel made a reasonable decision
      not to challenge Brunetti based on his strategy of attempting to find
      jurors likely to recommend a life sentence instead of the death
      penalty. Thus, Harvey has failed to demonstrate that counsel’s
      performance was deficient during the voir dire.

Harvey v. Dugger, 

, 1256 (Fla. 1995).

                                              B.

      Harvey claims that Watson’s failure to challenge Brunetti either

peremptorily or for cause constituted ineffective assistance of counsel. To prevail,

Harvey had to prove (1) deficient performance and (2) prejudice. Strickland v.

Washington, 

, 687, 

, 2064, 

(1984).

The Florida Supreme Court found that Watson’s decision was sound trial strategy

and thus did not consider Strickland’s prejudice prong. 

. Having ruled on the merits of Harvey’s claim, the court’s ruling receives




      proven serious errors that denied him of his right to counsel nor actual prejudice
      that deprived him of a fair trial.”

                                              28
AEDPA deference and can only be disturbed if it was an unreasonable application

of clearly established federal law. See 28 U.S.C. § 2254(d)(1).

      As we stated in part II.B, the bounds of constitutionally effective assistance

of counsel are very wide. An attorney’s actions are sound trial strategy, and thus

effective, if a reasonable attorney could have taken the same actions. See, e.g.,

Williams v. Head, 

, 1244 (11th Cir. 1999). We evaluate juror

selection claims as we would any other Strickland claim. See, e.g., Baldwin v.

Johnson, 

, 1315–16 (11th Cir. 1998); Smith v. Gearinger, 

, 1337–38 (11th Cir. 1989).

                                          1.

      Harvey first argues that sound trial strategy can never include seating a

biased juror without the defendant’s consent. The logic of his argument follows

several steps. First, a criminal defendant has a Sixth Amendment right to a trial by

an impartial jury. Second, like a guilty plea, the defendant must personally waive

this right. Third, counsel’s trial strategy is therefore sound only if the defendant

personally consents to the seating of the biased juror. Fourth, the record does not

show that Harvey consented. Citing a Sixth Circuit decision on point, Hughes v.

United States, 

, 463 (6th Cir. 2001), Harvey claims that his murder

convictions cannot stand.


                                          29
      From a first principle, conceding guilt and focusing on the penalty phase is

a valid trial strategy for Strickland analysis. With overwhelming evidence of guilt,

it is often trial counsel’s only chance to spare the capital defendant’s life. See

Florida v. Nixon, 

, 191, 

, 562, 

(2004) (“[A]voiding execution [may be] the best and only realistic result possible”

because “[p]rosecutors are more likely to seek the death penalty . . . when the

evidence is overwhelming and the crime heinous.”); Hightower v. Schofield, 

, 1039 (11th Cir. 2004) (“Counsel testified . . . that their strategy was to

save Hightower’s life, rather than to seek an acquittal. This was a reasonable

strategic choice, given that Hightower confessed to the murders . . . .”), vacated

and remanded on other grounds, 

, 

, 

(2005).

      Therefore, trial counsel may validly select jurors he or she believes are open

to life imprisonment or are receptive to a particular mitigation defense. However,

trial counsel must consult with the capital defendant about “questions of

overarching defense strategy.” 

, 125 S. Ct. at 560 (“An

attorney undoubtedly has a duty to consult with the client regarding ‘important

decisions,’ including questions of overarching defense strategy.” (quoting

, 104 S. Ct. at 2052)); see also 

1039 (“Counsel only pursued this sentence-focused strategy after discussing it

with Hightower and gaining his approval.”).

       Harvey’s claim fails at this last piece—evidence of consent. Harvey argues

that, because the record shows no evidence of consent, we must presume that he

never consented. This argument turns the Strickland burden of proof on its head.

It is the petitioner’s burden to introduce evidence proving trial counsel’s

deficiency. Kimmelman v. Morrison, 

, 384, 

, 2588,

(1986); Rogers v. Zant, 

, 386 (11th Cir. 1994).

       The record is silent regarding Harvey’s consent or lack thereof. The trial

court held an evidentiary hearing on March 11, 1993 on the claim that Watson’s

decision to accept Brunetti constituted ineffective assistance of counsel.22 Harvey

did not testify at the hearing. Watson did, but he was not asked whether he

obtained Harvey’s consent to Brunetti’s selection. The record of the hearing is

accordingly silent on the question of whether Watson discussed his decision to

accept Brunetti with Harvey.23

       22
           The March 11, 1993 evidentiary hearing is the only relevant moment for purposes of
evaluating Watson’s decision to accept Brunetti as a juror. Our task on habeas review is to
review the Florida Supreme Court’s decision in light of the evidence before it at the time. The
court rejected Harvey’s Brunetti claim in its 1995 decision, Harvey v. Dugger, 

(Fla. 1995), at which point, it only had the record of the March 11, 1993 evidentiary hearing
before it.
       23
           Watson’s testimony did cover Harvey’s consent regarding Watson’s opening statement
to the jury, another issue in this appeal.

                                               31
      With the record silent, we cannot assume that Watson did not consult with

Harvey. See 

(“[W]here the record is incomplete or

unclear about [trial counsel’s] actions, we will presume that he did what he should

have done, and that he exercised reasonable professional judgment.”). In short,

Harvey has not met his burden here.

                                          2.

      Harvey next argues that, even if sound trial strategy could encompass

seating a biased juror, Watson’s testimony at the March 11, 1993 hearing does not

demonstrate any strategy. At the hearing, Watson testified,

      I cannot remember this juror, nor can I tell you what factors I was
      considering in making the decision to keep her. Obviously I made a
      decision to keep her. Obviously from the record I knew that there
      was not only grounds for cause, but an invitation extended to me for
      cause and obviously I made a decision. What factors I was
      considering and which ones I weighed more heavily than others I
      can’t tell you at this point.

      Harvey argues that this statement is merely “post-hoc speculation,” and that

we should follow the Fifth Circuit’s ruling in Virgil v. Dretke, 

(5th

Cir. 2006). In Virgil, trial counsel failed either to question further or challenge

two venire persons whose voir dire suggested bias. 

The Fifth




                                          32
Circuit rejected trial counsel’s “conclusory affidavit”24 (introduced to support

counsel’s decision) because it “lack[ed] any suggestion of a trial strategy for not

using peremptory or for-cause challenges on” the prospective jurors. 

The State’s explanations were similarly rejected as “after-the-fact justifications”

unsupported by the record. 

       This argument fails to consider this circuit’s evidentiary presumption that

counsel acted properly. To give trial counsel proper deference, this circuit

presumes that trial counsel provided effective assistance. 

–28. And it is the petitioner’s burden to persuade us otherwise. See Stewart

v. Sec’y, Dep’t of Corr., 

, 1209 (11th Cir. 2007) (“Based on this

strong presumption of competent assistance, the petitioner’s burden of persuasion

is a heavy one . . . .”).




       24
            The relevant portion of the affidavit read:

                I spent approximately thirty (30) minutes talking to and questioning the
       jury in this case. I was able to ask all of the questions that I thought were
       necessary to determine if there was any prejudice or bias against my client. I was
       also able to question the potential jurors regarding any issues that I thought might
       arise in this case.
                In determining the final jurors, I used all peremptory strikes that were
       available to me. I have reviewed the record and confirmed the number of strikes I
       used in this case. I struck all persons whom I thought had some type of bias,
       prejudice or issue based upon my voir dire.

Virgil v. Dretke, 

, 610 (5th Cir. 2006).

                                                   33
      Harvey’s argument requires us to “turn [this] presumption on its head.”

. Williams provides a useful analogue. There, the

petitioner faulted trial counsel for not recognizing red flags during his

investigation for mitigation evidence. 

At the post-conviction

hearing—ten years later—trial counsel could not recall his conversations with the

petitioner, but assumed that he asked relevant questions. 

lack of

clarity of the record,” the court presumed that trial counsel made the appropriate

inquiries. 

      Here, Watson clearly could not recall why he chose to accept Brunetti as a

juror. His lack of memory is understandable; the evidentiary hearing occurred

nearly seven years after Watson made his decision. Like the petitioner in

Williams, Harvey improperly seeks to draw an inference in his favor from

Watson’s poor recollection.

      Reliance on Virgil is misplaced for the same reason. The Fifth Circuit

faulted trial counsel’s affidavit as “conclusory” and for its “fail[ure] to indicate

why for-cause challenges were not used.” 

. This language

suggests that the Fifth Circuit’s jurisprudence will give the petitioner the benefit of

trial counsel’s short memory. Binding precedent prevents us from deviating

towards such a standard. See 

–28 (“[W]here the record


                                           34
is incomplete or unclear . . . we will presume that [trial counsel] did what he

should have done, and that he exercised reasonable professional judgment.”); see

also Chandler v. United States, 

, 1314 n.15 (11th Cir. 2000) (en

banc).

                                              3.

         Finally, Harvey argues that we should not defer to Watson’s strategy

regarding Brunetti because it “directly undermined several purported strategies

that Watson claims he employed during trial.” Br. Appellant 39, May 5, 2009.

         First, Harvey claims that Watson’s Brunetti strategy—selecting a juror

likely to vote against the death penalty—conflicted with Watson’s strategy of

persuading the jury to find Harvey guilty of the lesser included offense, second-

degree murder. During voir dire, Brunetti stated that she believed that Harvey was

guilty of first-degree murder.

         Watson testified briefly at the March 11, 1993 hearing25 about his guilt-

phase strategy:

         It would be my recollection today that I discussed with [Harvey] what
         I was going to argue, whether I was going to argue not guilty or a
         lesser included offense. I would be shocked to learn that we never



         25
         The August 1998 evidentiary hearing is immaterial to the outcome of the Brunetti issue.
See supra note 22.

                                              35
      communicated that. I doubt I went over the specific statements and
      the opening statement with him.

      ....

      In phase one from reading a bit of the opening that I read, it is
      obvious that I was arguing for second degree murder rather than first-
      degree murder which I felt was the only possibility.

      But Watson also testified that he did not believe that his second-degree

murder argument would persuade the jury. Once the trial court ruled Harvey’s

confession admissible, Watson believed that he was picking a “pure phase two

jury”—phase two being the penalty phase. Because Harvey’s confession was

“comprehensive,” Watson “did[ not] have an expectation of a not guilty verdict.”

      As a result, Watson—who tried Harvey’s case without co-

counsel—believed that he needed to “establish credibility with the jury,” which

would decide Harvey’s guilt and recommend a sentence. Without credibility,

Watson feared that the jury would find him “insincere” and further harm Harvey’s

chance for mercy. Watson’s testimony does not specifically link “credibility” with

his second-degree murder strategy. But his testimony implies that a second-degree

murder strategy was the only possible guilt phase argument that acknowledged the

validity of Harvey’s confession and could avoid a capital murder conviction.

      According to Harvey, selecting Brunetti—who believed Harvey to be guilty

of first-degree murder—directly undermined this guilt-phase strategy of arguing

                                        36
for second-degree murder. Therefore, Watson’s purported trial strategy could not

have been “sound.”

      Harvey’s argument construes Watson’s strategy too narrowly. According to

Watson, Harvey’s confession doomed any chance for acquittal and nearly any

chance of conviction for anything other than first-degree murder. Therefore, his

“strategy” was simply to save Harvey’s life. In context, it appears that conceding

second-degree murder was not a stand-alone strategy, but rather a way to build

credibility with the jury. Brunetti’s belief that Harvey was guilty of first-degree

murder was thus immaterial to Watson’s overall strategy to save Harvey’s life.

      Second, Harvey argues that the Florida Supreme Court’s finding that

Watson kept Brunetti because she would be receptive to psychological evidence

was speculative and therefore erroneous because Watson did not hire a

psychiatrist. This argument is also unavailing. Although Watson did not call a

psychiatrist, he did call Dr. Frank Petrilla, a psychologist, to provide a character

profile of Harvey. Dr. Petrilla testified that, among other things, Harvey had low

self-esteem, was a follower, and had poor abstract thinking skills. Someone

receptive to psychological testimony might hear this information and view the

defendant as worthy of mercy. We thus cannot say that the Florida Supreme Court

acted unreasonably in reaching the finding of which Harvey complains.


                                          37
      Lastly, Harvey argues that Brunetti’s equivocal statements regarding the

death penalty were insufficient to justify Watson’s purported penalty-phase

strategy. As indicated above, Brunetti explained her view of the death penalty as:

“I’m kind of confused on the death penalty after listening to all of these different

people. I think it’s a deterrent because a person would not be able to get out to do

the same thing again. But I don’t necessarily believe that two wrongs make a

right.” Brunetti did not say that she favored the death penalty; neither did she say

that she was against the death penalty. While her statements did not strongly

support Watson’s purported strategy, they did not wholly contradict it either.

Strickland requires that we defer to trial counsel’s performance and eschew “the

distorting effects of hindsight.” 466 U.S. at 

. With that

command in mind, we cannot say that a competent attorney would have inferred

from Brunetti’s statement a willingness to vote for the death penalty.

      We therefore cannot find that the Florida Supreme Court unreasonably

applied federal law when it determined that Harvey failed to show that Watson

was constitutionally ineffective for accepting Brunetti.

                                         IV.

      Harvey next argues that Watson was constitutionally deficient for conceding

Harvey’s guilt to first-degree murder during his opening statement to the jury.


                                          38
The Florida Supreme Court rejected this claim because it found that Harvey could

not prove the prejudice prong of Strickland v. Washington, 

, 688,

694, 

, 2064, 2068, 

(1984). Harvey v. State, 

, 943–44 (Fla. 2006).

                                        A.

      On the first day of trial, Watson gave his opening statement to the jury.

There, after indicating what the State’s evidence would show, he stated that such

evidence would establish that Harvey was guilty of second-degree murder. The

relevant portion of Watson’s opening statement reads:

             Harold Lee Harvey is guilty of murder. If anything is
      established over the next week, it will be that Harold Lee Harvey is
      guilty of murder.
             I have been doing defense work for some time. I’ve never said
      that in a court of law, that my client is guilty of murder. But he is.
      That doesn’t by any means end your consideration of his case. The
      physical act that he committed was that he pulled the trigger on what
      was an automatic military weapon firing it into a room, discharging
      projectiles that hit human beings and killed them.
             Now, what events lead up to that? What events place this
      young man in that chair in this room before these 14 people to
      determine not whether or not he’s a murderer but merely what type of
      murderer he is?
      ....
             But the evidence will show that this case is the story of a
      robbery, a robbery that went very badly. I believe the evidence will
      show that after that robbery was concluded a murder did take place.
      A murder took place that was the result of panic, of fear, of
      depression, of lack of planning, of a depraved mind.


                                         39
       This is the story of how Harold Lee Harvey, Jr. killed Mr. and
Mrs. Boyd.
....
       And then it happened just about the way that Mr. Morgan26 said
it did. When they got there Mrs. Boyd surprised them. She was
outside the house. She was on her way out to get the garbage, they
didn’t have time to put their masks on. Mrs. Boyd came up to them, it
was, I believe, shortly before nightfall, and asked them at the front
door, “What are you doing out here?” And Stiteler looked at
[Harvey] and [Harvey] looked at Stiteler and they knew that things
were starting to go wrong. And they had Mrs. Boyd walk back into
the house and Mr. Boyd was in the house and they told them, “We
want your money.” And Stiteler ran around the house, all through the
house looking for this cache of money, while [Harvey] went into the
bedroom with Mr. and Mrs. Boyd. Mr. and Mrs. Boyd then gave Lee
what little bit they had, which was about $30 or $40 at the time. They
didn’t have any stash of money there. And Stiteler never did find the
stash of money and they came down and they completed the robbery.
And little facts come out in cases that are always sometimes more
indicative of what’s really going on and is more indicative about the
human beings involved than what the real plan was than other things.
And the little fact in this case is Mr. Boyd asked for money for
church, it was Saturday. And he said, “I have to go to church
tomorrow, you’re taking all my money.” After all, he’s thinking this
is the neighbor kid. I know this kid, he lives over there. What’s this
crazy kid doing? And Lee gave him back money for church, because
he didn’t plan to kill him.
       But then they went outside. And at that time Stiteler had the
imposing weapon and Lee had the handgun. And at that point they
began this frenzied conversation. They were just outside the home
and the door was half open. They asked Mr. and Mrs. Boyd to sit
down at a card table in the room, and you’ll see pictures of the room.
       And they had this conversation and without question what was
discussed during this conversation was whether or not to kill these



26
     Assistant State Attorney David Morgan.

                                        40
      two people. This is a crazy conversation for these two young men to
      be having but that’s what it had gotten to.

      In its March 17, 1993 order, the trial court denied, without an evidentiary

hearing, Harvey’s claim that Watson rendered ineffective assistance by conceding

that Harvey was guilty of second-degree murder. The Florida Supreme Court

concluded that an evidentiary hearing was necessary, however, and remanded the

claim for that purpose. Harvey v. Dugger, 

, 1256 (Fla. 1995).

      The evidentiary hearing took place in August 1998. There, Watson testified

that his strategy focused on preserving credibility with the jury. Credibility

required a consistent defense between the guilt phase and—because Harvey’s

confession made acquittal unlikely—the penalty phase. Conceding second-degree

murder achieved this goal. He also testified that he told Harvey about this

strategy. Harvey took the stand and denied that Watson consulted him about the

concession strategy. Steve Samilow, a member of the team of lawyers who had

represented Harvey at the March 11, 1993 hearing, testified that he found nothing

in Watson’s files indicating Harvey’s consent to the strategy. Andrea Lyon, an

expert in defending defendants charged with capital murder, said that merely

informing the defendant of a concession strategy was insufficient; an attorney

would be unreasonable to infer consent from the defendant’s silence.



                                         41
         The trial court again denied Harvey’s claim, in its order of January 15,

1999.27 It found that Watson discussed the strategy with Harvey, that the strategy

entailed admitting “some degree of murder if [Harvey’s] confession was ruled

admissible,” that Harvey understood the strategy, and that he therefore consented

to it.

         As indicated in part I, on appeal, the Florida Supreme Court rendered two

decisions regarding this claim. In 2003, the court reversed the trial court and

vacated Harvey’s convictions and death sentences. Harvey v. State, No. SC95075,

2003 Fla. LEXIS 1140, at *16 (Fla. July 3, 2003). The court found that Watson’s

opening statement admitted that Harvey and Stiteler discussed whether to kill the

Boyds, thus conceding premeditated first-degree murder. 

Without

Harvey’s consent, these statements were the functional equivalent of a guilty plea.

Watson’s opening statement performance was constitutionally

deficient. The court then presumed prejudice under United States v. Cronic, 

, 

, 

657 (1984), because Watson’s

“performance failed to subject the prosecution’s case to meaningful adversarial

testing.” 

v. State, 

, 231 (Fla. 2001)).




         27
              Judge Geiger issued an amended order on January 26, 1999.

                                                 42
      In 2006, however, the Florida Supreme Court withdrew the July 3, 2003

decision and accompanying opinion in light of Florida v. Nixon, 

,

, 

(2004). Harvey v. State, 

, 940

(Fla. 2006). According to the court, Nixon precluded Cronic’s presumed prejudice

in cases involving “counsel’s concession of guilt to the crime charged, even

without the defendant’s consent.” 

Rather, the petitioner had to prove

prejudice under Strickland’s second prong. 

Strickland standard, the court found that Harvey failed to

show prejudice. 

According to the court, Watson’s guilt-phase

defense was based around Harvey’s confession, which he knew would be admitted

at trial. 

Harvey confessed to the murders in great detail, including the

conversation about killing the Boyds. 

jury would have heard this

information anyway, there was no reasonable probability that, but for Watson’s

statements, the jury would have found differently. 

Harvey’s claim, however, the court held that Watson did in fact

concede first-degree murder. 

It again pointed to Watson’s reference to

the conversation between Harvey and Stiteler about whether to kill the Boyds. 

according to the court, was sufficient to show premeditation, and




                                         43
thus first-degree murder. 

was of no moment, however,

because the court found no prejudice. 

challenges the Florida Supreme Court’s finding of no prejudice and,

thus, its denial of his ineffective assistance claim based on Watson’s first-degree

murder concession. Harvey bears the burden of proving that Watson’s concession

was objectively unreasonable and that but for the concession, a reasonable

probability exists that the outcome of his trial would have been different. See

–88, 

, 2068. We cannot

overturn the Florida Supreme Court’s decision rejecting the claim unless we find

that it was “contrary to, or involved an unreasonable application of, clearly

established Federal law,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that

was based on an unreasonable determination of the facts,” 

      Harvey first argues that, because he never consented to Watson’s first-

degree murder concession, we should presume prejudice under Cronic because

Watson, in conceding that Harvey was guilty of first-degree murder, “fail[ed] to

subject the prosecution’s case to meaningful adversarial testing.” See 

, 104 S. Ct. at 2047. The Florida Supreme Court adopted this argument

in its 2003 decision, Harvey, 2003 Fla. LEXIS 1140, at *16, but reversed it in


                                         44
2006 in light of Nixon, Harvey v. 

–44. Harvey claims that

Nixon’s holding is narrower and only applies where trial counsel discusses his

strategy with his client; without consent or discussion, we should presume

prejudice. To evaluate Harvey’s claim, we must first turn to Nixon.

      In Nixon, the defendant, Nixon, was on trial for capital 

, 125 S. Ct. at 556. Given Nixon’s confession and “overwhelming evidence”

of his guilt, 

determined that the only way to avoid a death

sentence was to concede guilt and focus on the penalty phase, 

125 S. Ct.

at 557. Trial counsel attempted to explain this strategy to Nixon and gain his

consent, but Nixon was uncooperative and was eventually removed from the

courtroom. 

125 S. Ct. at 557. The Florida Supreme Court vacated

Nixon’s conviction and sentence after finding trial counsel ineffective for

conceding guilt without the defendant’s express consent. 

125 S. Ct.

at 559–60. The court presumed prejudice under Cronic because it found that the

concession “allowed the prosecution’s guilt-phase case to proceed essentially

without opposition” and left the prosecution’s case unexposed to “meaningful

adversarial testing.” 

125 S. Ct. at 559.

      The United States Supreme Court disagreed. Although the Court

acknowledged that criminal defendants must consent to guilty pleas, 

, it did not find the murder concession to be the functional

equivalent of a guilty plea, 

125 S. Ct. at 561. “Nixon retained the rights

accorded a defendant in a criminal trial. . . . The State was obliged to present

during the guilt phase competent, admissible evidence . . . .” 

did

not cede the case; he cross-examined witnesses and attempted to exclude

prejudicial evidence. 

explicit consent to counsel’s

concession strategy was not required. 

125 S. Ct. at 561.

      Furthermore, the Court held that counsel’s performance was not so

ineffective as to presume prejudice under Cronic. 

that “[t]he

Florida Supreme Court’s erroneous equation of [the] concession strategy to a

guilty plea led it to apply the wrong standard in determining whether counsel’s

performance ranked as ineffective assistance.” 

Supreme Court did

not require Nixon to prove prejudice under Strickland, but rather presumed

prejudice under Cronic. 

Court explained, however, that

Cronic’s presumption was a “narrow exception” to Strickland’s prejudice

requirement where “counsel has entirely failed to function as the client’s

advocate.” 

125 S. Ct. at 561–62. The concession strategy in Nixon

did not fall into that category, as trial counsel viewed concession to be the only




                                          46
way to save Nixon’s life in the face of the prosecution’s overwhelming evidence.

125 S. Ct. at 563.

      Harvey argues, though, that Nixon’s holding does not apply because Watson

never consulted with him regarding a first-degree murder concession. He points to

language in Nixon implying that consultation is required to shift from Cronic’s

presumed prejudice to Strickland’s prejudice showing. The relevant language in

Nixon reads: “But when a defendant, informed by counsel, neither consents nor

objects to the course counsel describes . . . counsel is not automatically barred

from pursuing that course.” 

125 S. Ct. at 555. According to Harvey,

Nixon is a narrow holding that, where trial counsel concedes the charge in an

opening statement, courts must presume prejudice under Cronic unless “(1) the

attorney fulfills the obligation of consulting with the client about the strategy and

asking for consent and (2) the client does not approve or reject the strategy

because the client is silent or uncooperative.” Br. Appellant 50.

      The failing of Harvey’s argument lies not with its logic, but with the

deference we must afford the Florida Supreme Court under AEDPA. Under

AEDPA, we can grant Harvey’s request only if that court’s holding was

“unreasonable.” See 28 U.S.C. 2254(d)(1) (“A . . . writ of habeas corpus . . . shall

not be granted . . . . unless the adjudication of the claim resulted in a decision that


                                           47
. . . involved an unreasonable application of[] clearly established Federal law

. . . .”).

         Nixon can be read in two equally compelling ways. On one hand, Harvey’s

quoted text does suggest that consultation could be the key fact that requires

Strickland prejudice to be presumed under Cronic. On the other hand, the Court

emphasized the distinction between a guilty plea and a concession strategy: “The

Florida Supreme Court’s erroneous equation of [the] concession strategy to a

guilty plea led it to apply the wrong standard in determining whether counsel’s

performance ranked as ineffective assistance.” Nixon, 543 U.S. at 

. This quoted language suggests that consent is irrelevant for determining

whether the prejudice component of an ineffective assistance claim is governed by

Cronic’s or Strickland’s standard.

         The Florida Supreme Court employed the latter standard. With two equally

compelling readings available, we cannot conclude that the court was

unreasonable for choosing one reading over the other.

         Furthermore, Cronic’s presumed prejudice standard is only available in

extreme circumstances where “counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing.” 

, 104 S. Ct. at

2047. The “failure must be complete. . . . [C]ounsel [must] fail[] to oppose the


                                          48
prosecution throughout the . . . proceeding as a whole,” rather than merely “at

specific points” in the proceeding. Bell v. Cone, 

, 697, 

, 1851, 

914 (2002). Cronic itself did not find defense counsel

constitutionally deficient even though counsel was a real estate attorney appointed

to defend a complex mail fraud case with only twenty-five days to prepare a

, 104 S. Ct. at 2049; see also 

, 125

S. Ct. at 562 (describing the counsel in Cronic as “an inexperienced,

underprepared attorney in a complex mail fraud trial”).

      Rather, the Cronic Court pointed to Powell v. Alabama, 

, 53 S.

Ct. 55, 

(1932), as a useful case in 

–61, 104 S.

Ct. at 2047–48. In Powell, an out-of-state lawyer was appointed on the same day

as the defendants’ rape trial even after the lawyer informed the court that he was

neither aware of the facts nor familiar with local 

, 53 S.

Ct. at 59. Powell thus presented an example where “the likelihood that any

lawyer, even a fully competent one, could provide effective assistance is so small

that a presumption of prejudice is appropriate without inquiry into the actual




                                         49
conduct of the trial.” 

–60, 104 S. Ct. at 2047. Watson’s

performance clearly met that low bar.28

       In sum, the Florida Supreme Court’s refusal to determine Strickland

prejudice under Cronic’s presumed prejudice standard did not constitute a decision

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

established Federal law.” 28 U.S.C. § 2254(d)(1).

       Thus, because he cannot rely on Cronic’s presumed prejudice, Harvey must

show that, but for Watson’s first-degree murder concession, there is a reasonable

probability that the outcome of his trial would have been different. Strickland,

466 U.S. at 

–69. The Florida Supreme Court found that

Watson’s opening statement merely restated facts that the jury would soon hear

when the State introduced Harvey’s confession into evidence. 

–44. Therefore, according to the court, even without Watson’s opening

statement, including the murder concession, the jury still would have heard that

Harvey and Stiteler conferred about whether to kill the Boyds, after which Harvey

shot and killed them. 

aside his opening statement to the jury, Watson’s performance throughout trial
was not such that he effectively ceased to represent Harvey. Watson contested the admission of
Harvey’s confession, cross-examined witnesses, and objected to prejudicial evidence he thought
was inadmissible. Considering the record as a whole, we cannot say that Watson “entirely
failed” to contest the prosecution’s case against Harvey.

                                               50
      We cannot say that the Florida Supreme Court’s Strickland finding of no

prejudice constituted “an unreasonable determination of the facts.” 28 U.S.C.

§ 2254(d)(2). The State’s evidence against Harvey was overwhelming and

included his own confession. Under such circumstances, it would be very difficult

to see how the outcome of the trial would have been different had Watson not

conceded Harvey’s guilt, as charged in the indictment. See 

, 125 S. Ct. at 563 (“[C]ounsel cannot be deemed ineffective for attempting to

impress the jury with his candor and his unwillingness to engage in ‘a useless

charade’ [by failing to concede overwhelming guilt].” (quoting 

n.19)).

      Harvey attempts to point us away from this conclusion. His first argument

for actual prejudice restates his argument that Cronic’s presumed prejudice should

apply. As we explained, Cronic’s presumed prejudice only applies where trial

counsel entirely failed to challenge the prosecution’s case; Watson’s performance

does not fall within that category.

      Second, Harvey argues that Watson’s closing statement during the penalty

phase conceded the aggravating factors at issue. This argument has two fatal

flaws. For one, Harvey did not mention this claim in his motion for a certificate of

appealabilty. Thus, the district court’s certificate of appealability did not authorize


                                          51
Harvey to appeal the claim. The other flaw is that this prejudice argument does

not address the prejudice suffered because of Watson’s concession of guilt.

Rather, it points out a completely separate performance error—admitting

aggravating factors—and attributes the possible prejudice from that error to

Watson’s guilt concession. This is not proper Strickland analysis. Harvey must

show prejudice flowing from Watson’s concession of guilt, which he has not done.

      Third, Harvey attempts to show prejudice by pointing to his attorney’s

“endorsement” of legal conclusions—“‘guilty,’ ‘murder,’ ‘premeditation,’

‘robbery,’ ‘burglary,’ and ‘kidnaping.’” But, Harvey does not explain how these

concessions caused actual prejudice. He cites Frances v. Spraggins, 

(11th Cir. 1983), for the proposition that defense counsel’s personal belief

about guilt is necessarily prejudicial. Spraggins, however, concerned a very

different circumstance. There, the capital defendant denied his involvement in the

crime and took the stand, testifying to that end. 

. His

attorney, however, undermined his testimony by saying that he believed the

defendant to be guilty. 

the sort happened here. Harvey confessed

to the facts Watson laid out in his opening statement; restating these facts could

not have undermined Harvey’s non-existent trial testimony.




                                         52
      Within this argument, Harvey cites Watson’s references to his “evil”

actions, referring to the murder as “repulsive” and “the product of a depraved

mind.” This argument fails for the same reason as his second prejudice

argument—it refers to a separate performance deficiency. The deficiency at issue

is Watson’s concession of guilt. These failures—“evil,” “depraved,” and

“repulsive”—are not poor consequences that flowed from Watson’s concession.

They allege separate episodes of allegedly ineffective assistance of counsel.

      Furthermore, Harvey takes Watson’s words out of context. In their proper

context, each word forms part of a coherent strategy. “Evil” referenced what was

set in motion by Harvey and Stiteler’s botched robbery—clearly an attempt to

foreshadow that events were going to spiral beyond Harvey’s control.

“Repulsive” referred to murder, generally, followed by a plea to the jury not to “let

that repulsion carry into their deliberations and affect their decision-making

process as to what type of murder this was.” “Depraved” referred to the mens rea

for second-degree murder.

      Finally, Harvey argues that he was prejudiced by Watson’s attempt to

“distance” himself from his client. This argument again mixes analytical steps;

this is not prejudice flowing from Watson’s concession of guilt.




                                         53
       For the foregoing reasons, we reject Harvey’s claim that the Florida

Supreme Court’s no prejudice finding was based on an “unreasonable” factual

determination “in light of the evidence presented” at Harvey’s trial. 28 U.S.C.

§ 2254(d)(2).29

                                               V.

       We turn now to Harvey’s final two claims: Watson was deficient for failing

properly to investigate mitigation evidence regarding both his client’s personal

history and mental health. Like all claims of ineffective assistance of counsel,

Harvey must prove deficient performance and resulting prejudice. Strickland v.

Washington, 

, 687, 

, 2064, 

(1984).

Harvey contends that, with respect to both kinds of mitigation evidence, Watson’s

pretrial investigation was markedly deficient. In his view, an adequate pretrial

investigation would have led to a different mitigation strategy for the penalty

phase of the trial, one that would have produced a different outcome—a life

sentence rather than the death penalty.

       We first consider, in subpart A, Watson’s performance relating to Harvey’s

personal history, then, in subpart B, Harvey’s mental health. In the end, we reject

       29
            The no prejudice finding is a finding of ultimate fact—an inferred fact. In concluding
that the finding was not unreasonable, and therefore entitled to AEDPA deference, we also
conclude that the subsidiary fact findings, those which yielded the ultimate fact, were similarly
not unreasonable.

                                                54
Harvey’s argument that the Florida Supreme Court unreasonably found that

Watson’s investigation into these areas of mitigation was objectively reasonable

under Strickland’s performance standard. See 28 U.S.C. § 2254(d)(1), (2).

                                          A.

                                          1.

      Watson’s penalty phase strategy was to portray Harvey as a good person

worthy of saving and to convince the jury that the murders were an aberration

from his otherwise amiable nature. To that end, he called sixteen witnesses. His

mother, father, two sisters, brother, uncle, as well as several friends, several family

friends, his work supervisor, a co-worker and two teachers testified. The Florida

Supreme Court, in Harvey v. State, capsulized Watson’s strategy by adopting the

trial court’s description of what Watson presented:

      Evidence was also presented that he was hard-working, from a good,
      decent family who would be negatively effected [sic] if he would be
      executed, that he had been a loving brother to his disabled sister, that
      the crime was out of character, and that he was pressured by his wife
      to provide things he could not financially do. Evidence showed that
      he was involved in the fatal accident at age 16 and would be able to
      adapt to a life sentence in prison.

, 947–48 (Fla. 2006). In addition to this, the court noted that “[t]he

jury viewed several childhood photographs of Harvey with his siblings, as well as

home movies of various family outings.” 

                                          55
      In his August 27, 1990 motion for post-conviction relief, Harvey claimed

that Watson’s investigation into his personal history, and therefore Watson’s

penalty phase strategy, was constitutionally insufficient. The trial court denied the

claim without an evidentiary hearing. The Florida Supreme Court vacated the

ruling and remanded the claim for an evidentiary hearing. Harvey v. Dugger, 

, 1257 (Fla. 1995).

      As indicated in part I, the evidentiary hearing was held in August 1998.

Harvey’s attorneys called several witnesses. Some recounted Harvey’s personal

history. Others testified that, but for Watson’s deficient investigation, an accurate

personal history would have been revealed and presented to the jury during the

penalty phase of the trial.

      Harvey’s family members, many of whom also testified at Harvey’s trial,

said that the questions Watson asked them pertained only to the positive aspects of

Harvey’s life and family situation. Harvey’s father said that Watson gave him the

questions Watson would ask and the answers he should give. Other family

members said they would have told Watson the grittier aspect of Harvey’s life had

Watson asked. One sister said that Watson directed her testimony—only to say

“yes, sir” and “no, sir.” The other sister explained that she was not eager to tell

Watson about her family’s “dirty laundry.”


                                          56
      The personal history the family witnesses gave portrayed an entirely

different picture of Harvey’s life than the one Watson presented to the jury.

Harvey’s parents and siblings testified that the family grew up in poverty; the

children and their mother picked fruit on the weekends to survive; there was not

enough to eat growing up; the children rarely had medical care; Harvey’s father

was an alcoholic who would hit Harvey with a stick when he would drink; Harvey

once physically separated his parents when Harvey’s father was beating Harvey’s

mother; and that the family never expressed love or affection for each other. Two

family members, however, did state that Harvey’s parents loved him.

      Harvey was involved in a fatal automobile accident at age sixteen. Family

members emphasized the impact the accident had on Harvey’s subsequent

behavior. One sister testified to the gruesomeness of the accident and described

Harvey’s hospital-bed appearance in detail. Following the accident, Harvey had

nightmares, exhibited noticeable personality changes, seemed to have “his mind

somewhere else” at times, and exhibited wild mood swings and reckless behavior.

      Family members related three incidents of violent behavior they attributed

to the accident. The first involved Harvey driving a truck, with his sister in the

passenger seat, into on-coming traffic, veering just in time to avoid a crash. The

second incident consisted of Harvey choking the same sister during something


                                         57
akin to a black-out. The third incident involved Harvey shooting out a street light

with a weapon.

      Members of the family also described Harvey’s chronic abuse of drugs and

alcohol. Harvey used alcohol at an early age; one member said that Harvey’s step-

grandfather gave him alcohol during his pre-teen years.

      Joseph Krumey, Jr., Watson’s first private investigator, testified that Watson

hired him in May 1985 to find evidence of “redeeming social qualities.”

According to the testimony, Krumey did not perform the investigation himself;

instead, he hired a former FBI agent to conduct the investigation. Krumey was not

certain whether it was he or the former agent who met with Watson during the five

months the investigation proceeded. Watson fired Krumey in October 1985 after

performing roughly twenty hours of work.30

      Andrea Lyon, a clinical professor of law, testified as an expert on how to

investigate a capital case. She said that defense counsel should interview the

potential witnesses in person because the best mitigation evidence—for example,

parental abuse of the defendant as a child—is usually embarrassing. It frequently

takes between three and six interviews of family members before they reveal the




      30
           Krumey testified that he charged $35/hour and was paid $750 for his work.

                                               58
truth about the defendant’s upbringing. Until they are willing to open up, the

family is likely to provide only positive information.

       Watson appeared at the hearing as a witness for the State, and covered

several points. Although he was unsure of the date, he said that he initially gave

Krumey instructions to look for witnesses who could testify regarding Harvey’s

“redeeming social qualities.”31 Watson added that he was displeased with

Krumey’s work, so, in October 1985, he fired him and hired a second investigator.

       Watson further testified that he met with members of Harvey’s family on

several occasions, and acknowledged that, as it turned out, his penalty phase

strategy coincided with the image he formed of the family after meeting them over

dinner. He rejected Harvey’s attorneys’ assertion that he formed his strategy

prematurely, before Harvey’s background investigation was finished. When

asked whether he had received information to the effect that Harvey was a drug

user or had been subjected to domestic abuse as a child, Watson answered in the

       31
           Although Watson could not recall when he hired Krumey, the record, including
Krumey’s testimony, indicates that he hired Krumey shortly after he was appointed to represent
Harvey, and that Krumey and the former FBI agent Krumey assigned to the case worked for
Watson for five to six months, until October 1985. During that time, if the $750 ($35 per hour)
Krumey billed Watson is an accurate indication of the amount of investigative work he and the
former agent performed, one would have to conclude that they did accomplish very little—which
was why Watson, with the court’s permission, employed the second investigator at the State’s
expense.
        Steve Samilow, an early member of Harvey’s post-conviction team of lawyers, testified
that his examination of Watson’s files indicated no “extensive evidence of mitigation
investigation.”

                                              59
negative.32 He said that if he had he been given such information, he would not

have presented it to the jury—evidence of drug use or child abuse would have

undermined his strategy, requiring the development of a completely different

theme than the “aberration” theme he chose.

       After receiving the parties’ evidentiary submissions, the trial court rejected

the claim that Watson’s investigation into Harvey’s personal history was

objectively deficient, that a reasonably competent attorney would have uncovered

the information Harvey’s family members disclosed at the hearing and would have

presented it to the jury. The court noted that Watson’s mitigation strategy

emphasized Harvey’s positive attributes, and that the new evidence Harvey’s

attorneys presented would have undermined the “good person” defense Watson

was portraying. In the court’s view, counsel were asking the court to speculate as

to whether their proffered strategy might have been more effective than Watson’s.

The three incidents of violent behavior—playing chicken, choking, and shooting

the street light—counsel considered to be a mitigating factor might, in the court’s

view, harm Harvey’s case after being subject to the State’s cross-examination.


       32
           Neither Harvey nor the State called Watson’s second investigator as a witness. In
saying that he received no information regarding drug use or domestic abuse, the inference is that
neither the family members with whom Watson had conversations nor the second investigator
said anything that would lead Watson to believe that Harvey had a history of drug use or had
been the victim of domestic abuse.

                                               60
      The Florida Supreme Court affirmed the trial court’s rejection of Harvey’s

claim that Watson’s personal history investigation fell below Strickland’s

reasonably-competent-attorney standard. It found that “[t]he record clearly

demonstrate[d] that counsel conducted an adequate investigation into Harvey’s

background . . . .” 

.

                                        2.

      Harvey disagrees with the Florida Supreme Court’s finding. He argues that

Watson’s investigation of potential mitigating evidence was constitutionally

deficient and that a proper investigation—one performed by a reasonably

competent attorney—would have uncovered evidence painting a vastly different,

and stronger, mitigation picture.

      Strickland governs trial counsel’s investigation of mitigating evidence:

      [S]trategic choices made after thorough investigation of law and facts
      relevant to plausible options are virtually unchallengeable; and
      strategic choices made after less than complete investigation are
      reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations unnecessary.
      In any ineffectiveness case, a particular decision not to investigate
      must be directly assessed for reasonableness in all the circumstances,
      applying a heavy measure of deference to counsel’s 

–91, 104 S. Ct. at 2066. Therefore, Harvey bears the burden of

proving that Watson unreasonably limited his investigation. The fact that Watson

                                        61
was unaware of particular facts is immaterial if he conducted a reasonable

investigation.

      Harvey must also overcome the deference we afford the Florida Supreme

Court. Harvey cannot obtain habeas relief unless the Florida Supreme Court’s

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

established Federal law,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented,” 

      The core of Harvey’s argument is that Watson approached his client’s

penalty phase defense with a preconceived strategy—the “good person”

strategy—and only sought evidence to support that strategy. After reviewing the

August 1998 evidentiary hearing before the trial court, we cannot conclude that

the Florida Supreme Court’s decision that Watson conducted an adequate

investigation was based on an unreasonable determination of the ultimate fact.

      Three sets of witnesses testified to Watson’s investigation: Krumey, the

investigator; Harvey’s family members; and Watson. Krumey’s testimony shed no

light on the investigation that actually occurred. Krumey admits that he did not

actually perform the investigation; he passed off that task to a former FBI agent.

Furthermore, Watson clearly did not approve of the work Krumey had done;


                                         62
Watson fired him in October 1985. What Watson’s second investigator found is

unknown—because he was not called to testify at the evidentiary hearing. Also

unknown is what that second investigator may have told Watson—because neither

side asked Watson what he said.

      Harvey’s family members likely had questionable credibility with the finder

of fact—the trial court. Many of the same witnesses testified to completely

different sets of facts during Harvey’s 1986 trial. It would be entirely reasonable

to discount their credibility based on their inconsistent testimony and current

motive to lie to save Harvey’s life.

      Watson testified that he hired two private investigators and also spoke with

the family personally. He claims that the “good person” defense was not cut from

whole cloth, but rather resulted from his investigation. That he did not learn about

Harvey’s physical abuse or substance abuse says nothing about the quality of that

investigation.

      These pieces together do not satisfy Harvey’s burden of proving that

Watson’s investigation was deficient. Nor do they allow us to conclude that the

Florida Supreme Court was unreasonable in denying Harvey’s claim.

      Against this conclusion, Harvey presents several arguments. Harvey first

claims that Watson did not follow the guidelines of the 2003 American Bar


                                         63
Association Standards for Criminal Justice—that he should have interviewed

“virtually everyone else who knew [Harvey] and his family.” Br. Appellant 58

(quoting ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases § 10.7, Commentary (rev. ed. 2003), reprinted in

31 Hofstra L. Rev. 913, 1024 (2003)). This standard is an inappropriate metric for

judging Watson’s performance. Although the ABA standards provide useful

guideposts, see 

, 104 S. Ct. at 2065, they are only

relevant “to the extent they describe the professional norms prevailing when the

representation took place.” Bobby v. Van Hook, 

, 16, 

(2009) (per curiam). Norms from 2003 are irrelevant when judging a

representation from 1985–1986.

      Instead, the relevant ABA standards are more general. The 1982 Standards

for Criminal Justice issue a broad “duty to investigate,” the relevant portion of

which says: “It is the duty of the lawyer to conduct a prompt investigation of the

circumstances of the case and to explore all avenues leading to facts relevant to

the merits of the case and the penalty in the event of conviction.” 1 ABA

Standards for Criminal Justice 4-4.1 (2d ed. 1982). Harvey has not proven that

Watson’s investigation fell short of this standard.




                                         64
         This is not a case where trial counsel ignored obvious red flags or

overlooked documents he had a duty to consult. Harvey argues that his case is

analogous to several Supreme Court decisions, Rompilla v. Beard, 

,

, 

(2005); Wiggins v. Smith, 

, 

, 

(2003); Williams v. Taylor, 

, 120 S.

Ct. 1495, 

(2000); and one from this circuit, Williams v. Allen,

(11th Cir. 2008). As we explain, however, none of these cases

apply.

         In Rompilla, the Supreme Court found trial counsel ineffective because he

did not investigate mitigating evidence available in a court file from one of the

habeas petitioner’s prior 

, 125 S. Ct. at 2464. The file

would have raised red flags leading to evidence of drinking, alcoholic parents, and

childhood beatings. 

125 S. Ct. at 2468. Although superficially

similar to Harvey’s claim, Rompilla’s holding is narrow and inapplicable. There,

trial counsel was required to read the court file only because he knew that the

prosecution would introduce the petitioner’s prior convictions; therefore, he

should have read the file to anticipate the State’s argument. 

125 S.

Ct. at 2464. Nothing similar occurred in Harvey’s case.




                                           65
      Trial counsel in Wiggins likewise ignored a readily available document that

noted the petitioner’s “misery as a youth” and would have led to extensive

mitigation 

–25, 123 S. Ct. at 2536–37. This failure

coincided with counsel’s general failure to investigate or prepare a social history

report, the standard practice at the time. 

with Harvey’s case

because counsel in Wiggins both failed to investigate and had key leads in

documents before him. Watson faced nothing as glaring in readily-available files.

      Taylor also presented a case where trial counsel failed to find available files

showing a “nightmarish childhood,” imprisoned parents, and frequent 

, 120 S. Ct. at 1514. Counsel’s insufficient investigation—begun

only one week before the trial—failed to uncover these red flags. 

case presents neither a failure to investigate nor readily-available

documents that would necessarily have led to the mitigation evidence Harvey

presented at the August 1998 evidentiary hearing.

      Finally, trial counsel in Allen overlooked evidence in an available report of

a low IQ, personality disorder, and evidence of childhood 

. The evidence contrasted with the penalty phase testimony, during which the

petitioner’s mother—the only witness trial counsel interviewed during his

investigation—provided mild testimony regarding beatings administered by the


                                         66
petitioner’s father. 

1339. This limited interview fell short of

professional standards including the need to verify information, 

(citing

ABA Guidelines for the Appointment and Performance of Counsel in Death

Penalty Cases 11.41(D) (1989)), which particularly hurt the petitioner because it

turned out that his mother also abused him, 

Watson, in contrast, did

not limit his sources—he called sixteen personal-history mitigation witnesses.

Furthermore, Harvey has not presented sufficient evidence to give an idea of what

investigation actually took place. And, what evidence he did present, the trial

judge was not required to find credible.

      We therefore cannot conclude that the Florida Supreme Court’s finding that

Watson conducted an objectively reasonable investigation into Harvey’s personal

history constituted an unreasonable finding of fact, a finding not entitled to

AEDPA deference. 28 U.S.C. § 2254(d)(2).

                                           B.

      Harvey’s last claim argues that Watson did not conduct an effective mental

health investigation. Specifically, he points to Watson’s failure to hire a

psychiatrist—as opposed to a psychologist—to interview Harvey and testify at

trial. Again, Harvey bears the burden of proof. He must show that Watson’s

decision not to hire a psychiatrist was deficient, falling below professional norms,


                                           67
and that Watson’s failure prejudiced Harvey’s defense against the death penalty.

, 104 S. Ct. at 2065.

                                              1.

       After the trial court appointed Watson to defend Harvey, Watson moved the

court for funds to hire both a psychiatrist and psychologist. The court granted

Watson’s motion and subsequent motions for funds.

       With those funds, Watson hired Dr. Fred Petrilla, a psychologist with a

Masters in counseling psychology from West Virginia University and a Ph.D in

psychology from the University of Kentucky. At the time of trial, Dr. Petrilla had

seen patients for eight years. He primarily worked as a school psychologist; the

majority of his practice concerned adolescents and older adolescents. He had

served as an expert witness in civil and criminal cases, though never on behalf of a

defendant in a murder trial.

       Dr. Petrilla interviewed Harvey in the Okeechobee County jail in June 1985.

There, he administered a battery of personality tests.33 He also conducted a

background investigation and spoke with Harvey’s teachers and family.




       33
         Dr. Petrilla stated that he performed the following tests on Harvey: Bender Visual-
Motor Gestalt test, Draw-A-Family, Draw-A-Person, Fundamental Interpersonal Relations test,
House-Tree test, and the Minnesota Multiphasic Personality Inventory.

                                             68
      Watson called Dr. Petrilla in Harvey’s penalty phase defense. He testified

regarding the various tests he performed. From these tests, Dr. Petrilla concluded

that Harvey was “very dependent and depressed,” “immature,” and had chronic

depression. Harvey, according to Dr. Petrilla, also had poor concrete reasoning,

which meant that he was unable to plan effectively his actions and when placed

under stress, would be an even more rash thinker. Furthermore, Dr. Petrilla

diagnosed Harvey with “dysthmic disorder, chronic depressive reaction and

dependent personality disorder.” He focused on these “emotional disorders”

because the tests did not indicate brain damage—that is, damage to the frontal

lobes. Dr. Petrilla did not attempt to use these diagnoses to explain Harvey’s

behavior or thinking at the time of the murder. When asked, he said, “no, I’m just

here to explain the test results.”

      Based on this testimony, the trial court, in sentencing Harvey, found non-

statutory mitigating factors regarding Harvey’s low IQ, low self-esteem, poor

education, poor social skills, and inability to reason abstractly. However, these

mitigating factors did not outweigh the aggravating factors, and Harvey was

sentenced to death.

      Harvey’s August 27, 1990 motion for post-conviction relief included the

current claim that Watson’s mental health investigation was constitutionally


                                         69
ineffective. The trial court rejected the claim on March 17, 1993 without an

evidentiary hearing. In 1995, the Florida Supreme Court vacated the decision and

remanded the claim to the trial court for an evidentiary hearing. Harvey, 

at 1257. The trial court held that hearing in August 1998.

      At the evidentiary hearing, several witnesses testified regarding Watson’s

mental health investigation. Watson testified that he sought court funds for both a

psychologist and a psychiatrist because it was “necessary to have both [exams] to

get a total picture.” Regarding his preparation of Dr. Petrilla, he instructed Dr.

Petrilla not to speak with Harvey about the circumstances of the crime because he

was afraid of the State using this information against the defense on cross-

examination.

      Watson conceded that Dr. Petrilla suggested that he hire a psychiatrist to

confirm his findings and that he wrote himself a note to call a psychiatrist.

Watson did not contact a psychiatrist, however, because he feared he would lose

the jury by calling two mental-health experts during the penalty phase. Watson

believed that juries are pre-disposed to disbelieve psychological testimony in

criminal cases; calling multiple experts might seem a “thin excuse” because

Harvey did not have a documented history of mental illness.




                                          70
      Dr. Michael Norko, a psychiatrist, testified for Harvey. Dr. Norko

examined Harvey in connection with the post-conviction process—once in April

1990 and once in April 1996. Unlike Dr. Petrilla, who did not examine the facts

of the crime and Harvey’s background before interviewing Harvey, Dr. Norko,

before he examined Harvey, read through the post-conviction affidavits and

various records to learn about Harvey’s life and his case.

      Based on what those materials disclosed and his examination of Harvey, Dr.

Norko made several diagnoses that overlapped Dr. Petrilla’s penalty phase

testimony—including depression, low IQ, poor abstract thinking, dependent

personality disorder, and post traumatic stress disorder. Dr. Norko disagreed with

Dr. Petrilla regarding the existence of brain damage—Dr. Norko found evidence

of organic brain disorder. He gleaned this from a mixture of test results and

evidence of head trauma from Harvey’s car accident and subsequent head injuries.

Dr. Norko did not subject Harvey to a CAT, MRI, or EEG scan because these tests

do not always perceive organic brain dysfunction. Finally, Dr. Norko testified that

Harvey’s condition satisfied three statutory mitigation factors: (1) lack of capacity

to appreciate the criminality of his conduct; (2) duress or substantial domination

by both Harvey’s wife and accomplice Stiteler; and (3) extreme mental or

emotional disturbance.


                                         71
      Andrea Lyon, Harvey’s criminal defense expert, testified that Watson

should have had a psychiatrist examine Harvey. Dr. Petrilla was a clinical

psychologist, but had no forensic expertise. She also could not understand why

Watson did not allow Harvey to speak about the crime with a mental health expert.

Based on Harvey’s medical reports—particularly following Harvey’s car

accident—Lyon claimed that Watson should have noted red flags regarding

possible brain damage. On cross-examination, however, the State pointed out that

the medical records also indicated that, following his car accident, Harvey was

responsive, needed only four stitches, and received no special treatment regarding

his loss of consciousness.

      Harvey called a second psychiatrist, Dr. Brad Fischer. Dr. Fischer

examined Harvey in April 1990 and performed a battery of psychological tests

similar to those Dr. Petrilla had performed prior to Harvey’s trial. He came to the

same conclusions as Dr. Norko. Dr. Fischer also faulted Dr. Petrilla’s

investigation and report. He did so primarily because Dr. Petrilla’s professional

experience focused on counseling; he lacked experience as a forensic examiner.

In his opinion, Dr. Petrilla’s lack of experience was exacerbated by Watson’s

failure to provide Dr. Petrilla with all of Harvey’s background materials.

Furthermore, Dr. Petrilla was not properly alerted to the possibility of brain


                                         72
damage because the background materials he had at hand did not mention

Harvey’s car accident or other head traumas. Dr. Fischer also noted “scoring

errors” in Dr. Petrilla’s evaluation that undermined Dr. Petrilla’s ability to spot

Harvey’s brain damage.

       Dr. Petrilla also testified about his initial evaluation and Watson’s

performance. Regarding Watson’s investigation, Dr. Petrilla testified that Watson

asked him only to administer a personality evaluation, distinct from a forensic

evaluation, which he stated tested different areas of the brain. In his estimation, he

could not have performed a forensic evaluation in 1985 because he was

incompetent to do so then. Dr. Petrilla complained that Watson failed to provide

him with Harvey’s background information. Although he did not want these facts

before seeing Harvey, he felt they would have been useful when interpreting the

results.

       Regarding organic brain damage, Dr. Petrilla testified that he told Watson

that he did not think Harvey had brain damage. In retrospect, however, he did so

only because he did not have sufficient experience to link Harvey’s test results

with signs of organic brain damage. It was this lack of competence that led him to

suggest that Harvey see a psychiatrist, who not only could provide a second

opinion, but also would be more thorough regarding likelihood of organic brain


                                          73
damage. However, Dr. Petrilla did not tell Watson that he was incompetent to

render an opinion about the possibility of brain damage.

      After hearing Harvey’s evidence, the trial court denied Harvey’s claim. The

court concluded that Dr. Petrilla did test for organic brain damage and found none,

but that he did recommend that Harvey see a psychiatrist to verify his opinion and

diagnoses. Watson chose not to consult a second expert because he feared that

conflicts between two experts might cause the jury to disregard all mental health

evidence and that calling two mental health experts would anger the jury as a “bad

excuse for bad behavior.”

      The court noted that Dr. Petrilla told Watson that Harvey did not have brain

damage but suffered from a personality disorder. The court discounted the

uncovered evidence of brain damage because the post-conviction experts “concede

that there is no expert proof of any particular cause of brain damage.” The court

concluded that Harvey had not shown that Watson “fail[ed] to ensure a competent

mental health examination.”

      The Florida Supreme Court agreed. 

–47. Its 2006

opinion found that Watson’s performance satisfied Strickland’s performance

standard, contrasting Watson’s investigation with those in which trial counsel

“never attempted to meaningfully investigate mitigation.” 

(quoting


                                        74
Rose v. State, 

, 572 (Fla. 1996)). The court found that Watson

“conducted a reasonable investigation into Harvey’s mental health background

and incorporated his findings into a penalty phase strategy.” 

                                         2.

      Harvey argues that the post-conviction evidence he presented proved that

Watson was deficient in failing to contact a psychiatrist, and that Watson’s failure

to present such evidence to the jury prejudiced Harvey’s defense. Framed under

Strickland, Harvey’s argument is that Watson’s investigation fell below an

objective standard of professional conduct. See Strickland, 466 U.S. at 

. Moreover, because the Florida Supreme Court found Watson’s

investigation objectively reasonable, Harvey must demonstrate that the court’s

finding constituted an “unreasonable determination of” fact. 28 U.S.C.

§ 2254(d)(2).

      A thorough post-conviction mental health investigation does not render trial

counsel’s less thorough investigation ineffective. Johnson v. Upton, 

, 1337 n.17 (11th Cir. 2010). The key factor is whether the “known evidence

would lead a reasonable attorney to investigate further.” Powell v. Allen, 

, 1273 (11th Cir. 2010) (quoting 

, 123 S. Ct. at

2538). “[T]he mere fact [that] a defendant can find, years after the fact, a mental


                                         75
health expert who will testify favorably for him does not demonstrate that trial

counsel was ineffective for failing to produce that expert at trial.” Reed v. Sec’y,

Fla. Dep’t of Corr., 

, 1242 (11th Cir. 2010) (quoting Davis v.

Singletary, 

, 1475 (11th Cir. 1997)).

       Harvey presses two main arguments against the Florida Supreme Court’s

finding that Watson’s mental health investigation was objectively reasonable.

First, he argues that Watson was deficient for failing to follow Dr. Petrilla’s advice

to follow-up with a psychiatrist. We cannot accept this argument because of the

deference we must show not only to Watson’s professional judgment, but also to

the Florida Supreme Court’s finding of reasonableness under AEDPA.

       Strickland allows attorneys to limit investigations if it would be reasonable

to do so. 466 U.S. at 

. Watson was told by his expert,

Dr. Petrilla, that Harvey did not have brain damage.34 Although Dr. Petrilla

claimed incompetence in his post-conviction testimony, he did not express that

view to Watson in 1985, prior to Harvey’s trial. Rather than obtain a second

opinion, Watson chose to rely on his expert, who gave him no reason to doubt that


       34
           Harvey’s brief to this court suggests that, in 1985, Dr. Petrilla noted test results
indicative of brain damage and suggested that Harvey see a psychiatrist because of his
inexperience in neuropsychology. Br. Appellant 5. Dr. Petrilla’s testimony does not paint nearly
as explicit a picture as does Harvey’s brief. Dr. Petrilla never expressed his competency
concerns to Watson and told Watson that he did not think Harvey had brain damage.

                                               76
he was competent. We cannot say that Watson’s performance was deficient. And

we certainly cannot say that the Florida Supreme Court’s finding constituted an

unreasonable assessment of the evidence bearing on Watson’s performance.

      Harvey’s second argument is that Watson’s own familiarity with the case

should have raised red flags sufficient to justify a more thorough mental health

evaluation. Specifically, Harvey points to Watson’s observations that “Harvey

was a ‘borderline operator,’ suicidal, slow to understand and tearful.” This

argument, however, is just another way of arguing Harvey’s first point. Watson

must have been concerned for Harvey’s mental health—he hired Dr. Petrilla.

Harvey’s argument would require Watson to give greater weight to his own “red

flags” than to his own expert’s professional opinion that Harvey did not have

organic brain damage. Again, we cannot conclude that Watson was deficient for

trusting his own expert.

      Harvey’s final argument is that the case, here, is “highly analogous” to

Rompilla v. Beard, 

, 

, 

(2005);

Wiggins v. Smith, 

, 

, 

(2003);

Williams v. Taylor, 

, 

, 

(2000); and

Williams v. Allen, 

(11th Cir. 2008); therefore, the Florida Supreme

Court’s finding that Watson’s investigation was objectively reasonable constituted


                                         77
an unreasonable factual determination under AEDPA, 28 U.S.C. § 2254(d)(2). As

with Harvey’s personal history argument, his mental investigation argument is

nothing like the arguments advanced in these cases. As laid out above, each case

involved an attorney who overlooked a readily available document that would

have opened doors to undiscovered mitigation evidence. See 

–84, 125 S. Ct. at 2464; Wiggins, 539 U.S. at 

–37; Taylor, 529 U.S. at 

; 

.

No such document existed for Harvey. Without a similar smoking gun, we cannot

disagree with the Florida Supreme Court’s finding that Watson acted reasonably in

trusting his expert’s opinion that Harvey did not have brain damage.

                                          VI.

      Based on the foregoing analyses, the district court’s denial of Harvey’s

petition for a writ of habeas corpus is

      AFFIRMED.




                                          78