PER CURIAM:
Allen Cox, a Florida state prisoner, appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his capital conviction and sentence. We granted a Certificate of Appealability on two issues: (1) whether the prosecutor's comments during voir dire and closing argument violated Cox's Fifth Amendment right to due process; and (2) whether Cox received ineffective assistance of counsel during the guilt and penalty phases of his trial. Specifically, Cox argues that his counsel was ineffective because he (1) failed to object to the prosecutor's misstatements of law; (2) failed to conduct a meaningful voir dire, which deprived Cox of an impartial jury; (3) presented a defense during his opening statement that had no legal basis, which prejudiced Cox in the eyes of the jury; (4) failed to object to prejudicial testimony from the State's medical examiner; (5) questioned a defense witness at trial in a manner that elicited prejudicial testimony; and (6) failed to adequately investigate and present mitigating evidence at the penalty phase of trial.
Cox was convicted and sentenced to death in 1999 for premeditated murder that occurred in a state prison. The charges against Cox arose from a chain of events within the Lake Correctional Institution that resulted in the death of Thomas Baker, a fellow inmate. A detailed description of the facts of Cox's crime can be found in the Florida Supreme Court's decision issued on direct appeal. See Cox v. State, 819 So.2d 705, 709-10 (Fla.2002) ("Cox I"), cert. denied 537 U.S. 1120, 123 S.Ct. 889, 154 L.Ed.2d 799 (2003). The jury rendered a guilty verdict and recommended a death sentence by a vote of ten to two.
On direct appeal, Cox argued among other things that he received a fundamentally unfair trial because the prosecutor misstated the law during voir dire and closing argument. The Florida Supreme Court held that although the prosecutor's
Cox subsequently filed a post-conviction motion for relief in state court alleging ineffective assistance of counsel in both the guilt and penalty phases of trial. After conducting a full evidentiary hearing on this claim, the state trial court denied his motion, and the Florida Supreme Court affirmed. Cox v. State, 966 So.2d 337, 345-64 (Fla.2007) ("Cox II"). Cox then filed a federal petition for a writ of habeas corpus on the basis of his due process and ineffective assistance of counsel claims. The district court denied his petition and we granted his request for a Certificate of Appealability as noted above.
"When examining a district court's denial of a § 2254 habeas petition, we review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error." Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir.2009) (citation omitted), cert. denied ___ U.S. ___, 130 S.Ct. 3399, 177 L.Ed.2d 313 (2010). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we may grant habeas relief to a state prisoner on any claim adjudicated on the merits in state court if that adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). The Supreme Court has explained the requirements of § 2254(d) as follows:
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Cox first asserts that his due process rights were violated at trial because (1) the prosecutor made erroneous statements of law to the jury regarding the legal standard for weighing aggravating and mitigating circumstances; and (2) the prosecutor made prejudicial remarks during closing arguments. We address each argument in turn.
During jury selection, the prosecutor erroneously advised the prospective jurors that "if the evidence in aggravation outweighs the evidence in mitigation, the law says that you must recommend that Mr. Cox die." The substance of this misstatement was repeated four times during voir dire and again during the prosecutor's closing argument. Defense counsel did not object to these misstatements of law. The trial court did not explicitly correct the prosecutor's misstatements of law, but provided the following standard jury instruction at the close of trial:
On direct appeal, the Florida Supreme Court agreed that the prosecutor "misstated Florida law by advising prospective jurors that if `the evidence in aggravation outweighs the evidence in mitigation, the law says you must recommend that Mr. Cox die.'" Cox I, 819 So.2d at 717 (emphasis in original). Although the Court found that "[i]t is unmistakable that these statements are improper characterizations of Florida law," it held that the misstatements were harmless error because "the trial court did not repeat the prosecutor's misstatements of the law during its instruction of the jury," and "the trial court's instructions properly informed the jury of its role under Florida law." Id. at 717-18. As did the Florida Supreme Court, we have reviewed the totality of the record before us and, on this record, we cannot say that the Florida Supreme Court's decision was contrary to or an unreasonable application of clearly established federal law.
Cox also claims that his due process rights were violated by the following statements made by the prosecutor during closing arguments. First, the prosecutor stated: "I stand before you again today on behalf of the decent law-abiding people of this community and this state, whom I represent." Cox argues that this argument was improper because the prosecutor wrapped himself in the cloak of state authority and intended to appeal to the emotions and fears of the jurors. Second, the prosecutor emphasized during closing argument that Cox's traumatic childhood should be put in context, as it happened more than twenty-five years earlier. Cox argues that this argument was fundamentally unfair because it improperly denigrated valid mitigating evidence.
The State argues that Cox is barred from raising this claim in his federal habeas petition because he failed to raise it as a federal claim in state court. On direct appeal to the Florida Supreme Court, Cox presented this claim as a state law claim and cited no federal law. The Florida Supreme Court likewise ruled solely on state law grounds. See Cox I, 819 So.2d at 718. Because Cox did not raise these federal claims in state court, the district court did nor err in holding that he is barred from raising them in his federal habeas petition. See McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.2005).
Cox claims ineffective assistance of counsel during both the guilt and penalty phases of his trial. Cox contends that he was denied effective assistance during the guilt phase because his counsel: (1) failed to object to the prosecutor's misstatements of law during voir dire and closing argument as described above, thereby depriving Cox of the right to be tried by an impartial jury; (2) failed to conduct a meaningful voir dire, which also deprived Cox of an impartial jury; (3) presented a defense during his opening statement that had no legal basis, which prejudiced Cox in front of the jury; (4) failed to object to prejudicial testimony from the State's medical examiner; and (5) questioned a defense witness at trial in a manner that elicited prejudicial testimony. As to the penalty phase, Cox asserts that he was
Ineffective assistance of counsel claims are governed by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on a claim of ineffective assistance of counsel, the petitioner must show (1) that "counsel's representation fell below an objective standard of reasonableness," and (2) that "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 688, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. "Because a petitioner's failure to show either deficient performance or prejudice is fatal to a Strickland claim, a court need not address both Strickland prongs if the petitioner fails to satisfy either of them." Kokal v. Sec'y, Dept. of Corr., 623 F.3d 1331, 1344 (11th Cir.2010). Applying these principles, we address each of Cox's ineffective assistance of counsel arguments in turn.
Cox argues first that his trial counsel was ineffective because he failed to object to the prosecutor's misstatements of law concerning the weighing of aggravating and mitigating factors, as described above. As the Florida Supreme Court found, counsel's performance here was deficient. Constitutionally effective counsel would have objected to the clear misstatements of law and informed the jurors that they would not be required to recommend a death sentence, even upon a finding that the aggravation evidence outweighed the mitigation evidence. Under Strickland, however, we must consider whether Cox was prejudiced by counsel's deficient performance. The Florida Supreme Court found that Cox had not shown a "reasonable probability" that the prosecutor's misstatements of law contributed to Cox's conviction or sentence, and thus Cox had failed to satisfy the prejudice prong of Strickland. Cox II, 966 So.2d at 347. As we have noted, on this record as to this issue, we cannot say that the Florida Supreme Court's decision was contrary to or an unreasonable application of clearly established federal law.
Cox also argues that his trial counsel's own voir dire was deficient. First, Cox argues that his trial counsel tainted the panel of prospective jurors by, in the presence of the other panel members, questioning a juror about why she wrote "fry him" on her questionnaire. However, Cox's counsel repeatedly moved to conduct a sequestered voir dire on the prospective jurors' opinions about the death penalty, which the trial judge denied. The Florida Supreme Court determined that counsel's questioning of this particular juror was reasonable because he was attempting to resolve a conflict between the juror's verbal statements about her attitude toward the death penalty ("I can vote life") and the written answer on her questionnaire ("fry him"). Id. at 348-49. We cannot say that, under the circumstances presented, it was contrary to or an unreasonable application of clearly established federal law for the Florida Supreme Court to conclude that counsel was not constitutionally ineffective in questioning this juror in the presence of others.
Finally, Cox argues that his trial counsel was ineffective during voir dire because he failed to adequately probe the prospective jurors about mitigation and mental health issues, and never discussed statutory and
The Florida Supreme Court concluded that Cox failed to establish deficiency under Strickland because he did not "elaborate upon or provide insight as to what questions counsel should have asked, or explain the inadequacy of the questions asked." Cox II, 966 So.2d at 349. In addition, the Florida Supreme Court found that Cox did not allege how he was prejudiced by this allegedly deficient voir dire. Id. Even assuming that counsel's voir dire was deficient, Cox has not demonstrated a reasonable probability that the outcome of either his guilt or penalty phase would have been different had his counsel discussed mitigation at greater length with the potential jury members, and thus we cannot say that the Florida Supreme Court's decision was contrary to or an unreasonable application of clearly established federal law.
Cox argues that his trial counsel was ineffective because he argued a defense to the jury during his opening statement that had no legal basis, which Cox argues prejudiced him in the eyes of the jury because the jury rejected the defense. Counsel attempted to attack the element of premeditation by arguing that it was the delay in medical care at the prison facility that caused Baker's death. The state objected to testimony regarding this delay, and counsel continued as follows:
Cox II, 966 So.2d at 351.
Cox contends that this defense was legally invalid because the standard for premeditation is whether the defendant intended to kill, not whether he should have known that death would result. He asserts that because this defense had no basis in Florida law, counsel's decision to proffer it deprived him of effective assistance of counsel. On direct appeal, the Florida Supreme Court concluded "that counsel's discussion of the faulty medical care received by Baker constituted a reasonable trial court strategy to attack the element of premeditation in the State's case," in that Cox did not continue to stab Baker or otherwise assure his immediate death. Id. at 352. The Florida Supreme Court also concluded that this fact could
As his last claim regarding the guilt phase, Cox asserts that his counsel was ineffective because he failed to object to prejudicial testimony from the State's medical examiner, Dr. Janet Pillow, and also because he improperly questioned defense witness Vincent Maynard in a manner that elicited prejudicial testimony. We address Cox's claim as to each witness in turn.
Cox asserts that his counsel was ineffective because he failed to object when Dr. Janet Pillow, the State's medical expert, testified that the reason blood was not found on the blade used to kill Baker was because it could have been wiped clean when it was extracted from his body. Cox contends that this was speculation and that defense counsel was ineffective in allowing the witness to speculate. However, Cox's counsel explained during the post-conviction evidentiary hearing that he had strategic reasons for his decision not to object to Dr. Pillow's testimony about the blood on the shank. Cox II, 966 So.2d at 353. First, he believed the testimony fell within the realm of the witness's expertise and was thus admissible. Second, Dr. Pillow's testimony was not inconsistent with the theory of the defense that the shank in evidence was not the one used to stab Baker, in any case. Id. On this record, we cannot say that it was contrary to or an unreasonable application of clearly established federal law for the Florida Supreme Court to hold that counsel was not ineffective for failing to object to this testimony.
Cox also argues that trial counsel was ineffective by failing to object to Dr. Pillow's speculative testimony that it was "certainly possible" that a person who had experienced injuries similar to Baker would recognize that he was in "serious danger of dying." Id. The Florida Supreme Court concluded that Cox was not prejudiced by his counsel's failure to object to this testimony. Id. at 354. In so holding, the Florida Supreme Court emphasized that the trial court's postconviction order detailed the "copious evidence through which the jury could have independently reached the conclusion that Baker was aware of his impending death," including: testimony from several witnesses that Baker was scared and hysterical after he was stabbed, was having trouble breathing, was coughing up blood, and stated that he felt his lungs were filling with blood; testimony from Dr. Pillow that during the autopsy she found about one quart of blood in Baker's chest cavity; and testimony from one inmate that Baker stated, "please don't let me die." Id. In light of all of this evidence, we cannot say that Cox has demonstrated a reasonable probability that the result of the proceeding would have been different had defense counsel objected to Dr. Pillow's testimony, and thus we cannot say that the Florida Supreme Court's conclusion that Cox failed to show prejudice was contrary to or an unreasonable application of clearly established federal law.
Cox also challenges his counsel's examination of Cox's fellow inmate, Vincent Maynard. One theory of the defense was that Maynard, not Cox, killed Baker. During direct examination, defense counsel was hostile toward Maynard and blamed
During the post-conviction hearing, counsel explained that his strategy was to convey to the jurors through Maynard's demeanor at trial that he had the propensity to kill Baker. He further testified that by aggressively questioning Maynard, he did elicit exactly the testimony and demeanor desired. Moreover, the prejudicial information revealed was nonresponsive to the question posed by defense counsel, despite the trial court having instructed Maynard only to answer the questions asked. Id. at 356. Thus, counsel could not have anticipated the prejudicial testimony.
Moreover, independent evidence was presented at trial that Cox was a felon with an extensive criminal history and, given that the murder occurred in a prison, the jury knew he was incarcerated. Cox himself testified at trial that he had been convicted of twelve prior felonies. In addition, the trial judge gave a curative instruction to the jurors not to consider Cox's life sentences and informing them that the convictions were not for any type of murder or homicide. On this record, we cannot say that it was contrary to or an unreasonable application of clearly established federal law for the Florida Supreme Court to conclude that defense counsel's manner of questioning Maynard did not fall below a reasonable standard of care. Even if we were to find that defense counsel's method of questioning was deficient, it was not contrary to or an unreasonable application of clearly established federal law for the Florida Supreme Court to determine that Cox failed to satisfy the prejudice prong of Strickland.
As to the penalty phase, Cox contends that his trial counsel was ineffective because he failed to adequately investigate mitigating evidence and that, as a result, available and substantial mental health mitigation evidence was not presented to the jury.
First, Cox argues that his counsel was deficient because he failed to promptly begin his investigation into mental health mitigation evidence. Cox argues that trial counsel's delay in investigating mitigating evidence fell short of the ABA guidelines for capital defense work, which instruct that "investigations for both the guilt and penalty phase should begin immediately upon counsel's entering the case." ABA Guideline 11.4.1 (1989). According to Cox, counsel's deficient performance is evidenced by his failure to meet certain deadlines set by the trial court concerning mental health mitigators. Specifically, trial counsel (1) did not have Cox's psychiatric evaluation completed or reviewed on the day before counsel was required to submit a statement of particulars as to any mental health mitigators to the court; (2) admitted that he did not file a notice disclosing mental health mitigators sixty days before trial because he did not yet know which mitigators potentially applied to Cox; and (3) had only a "summary idea," eight days before trial, of what Dr. Elizabeth McMahon, a forensic psychologist who ultimately testified at Cox's penalty phase, was going to articulate as potential mitigators.
Cox also argues that the mitigation evidence presented at the penalty phase was incomplete and inadequate because his
In support of this argument, Cox relies on the testimony of Dr. Berland, who did not testify at trial but only at the post-conviction evidentiary hearing on Cox's ineffective assistance claim. Dr. Berland interviewed the additional witnesses listed above, and concluded that two statutory mitigators applied to Cox: (1) that he had a substantially impaired ability to conform his conduct to the law; and (2) that he was under the influence of extreme mental or emotional disturbance at the time of the murder. Cox argues that Dr. Berland's testimony is indicative of what could and should have been presented at trial.
After a thorough evidentiary hearing, the state trial court denied relief on this claim and the Florida Supreme Court affirmed the determination that counsel's performance did not fall outside the range of reasonably competent performance under prevailing professional standards. Cox II, 966 So.2d at 362. Specifically, the Florida Supreme Court found that:
Id. at 362-63 (internal citations and quotation marks omitted). With reference to the medical testimony, based on the evidentiary hearing, the Florida Supreme Court explained:
Id. at 363-64 (internal footnote and citations omitted). With reference to calling additional witnesses, the Florida Supreme Court noted that the testimony of the additional
Id. at 364. The Florida Supreme Court concluded:
Id.
On this record, we cannot say that the Florida Supreme Court's analysis and resolution of this claim was contrary to or an unreasonable application of clearly established federal law. Thus, the district court did not err in denying Cox's habeas petition on this claim.
AFFIRMED.
