CARNES, Circuit Judge:
Confident that he knew what the future would bring, one of Shakespeare's characters boasted that "[t]here are many events in the womb of time which will be delivered." William Shakespeare, Othello, Act I, Scene 3, lines 412-13. On the subject of lower courts predicting that the Supreme Court is going to overrule one of its own decisions, however, Judge Hand cautioned against "embrac[ing] the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (Hand, J., dissenting). The Supreme Court has made Hand's warning a clear command by repeatedly instructing lower courts that when one of its earlier decisions with direct application to a case appears to rest on reasons rejected in a more recent line of decisions, we must follow the directly applicable decision and leave to the high Court the prerogative of overruling its own decisions. As will become apparent, those instructions are dispositive of the State's appeal from the grant of habeas corpus relief in this case.
This is a murder for hire case in which Paul Evans contracted with Paul Pfeiffer's wife to kill her husband in return for a camcorder, a stereo, and some of the insurance money. Evans v. State, 808 So.2d 92, 95-98 (Fla.2001). Evans performed his part of the contract by murdering Pfeiffer with three shots from a .38 caliber pistol — one bullet to his spine and two bullets to his head. Id. at 97.
Evans was indicted and convicted on one count of first-degree murder. As is the practice in Florida, the indictment did not charge a sentencing stage aggravating circumstance. There was, however, no evidence that Evans had any motive for murdering the victim except for pecuniary gain in the form of the compensation that the victim's wife had agreed to give him in return for killing her husband. See id. at 95-98. And the fact that a murder was committed for pecuniary gain is a statutory aggravating circumstance that makes the defendant eligible for a death sentence in Florida. See Fla. Stat. § 921.141(5)(f) (1990).
After the jury convicted Evans of first-degree murder, as charged, the trial court conducted a separate sentence proceeding in front of the jury. During that proceeding the jury heard evidence of mitigating circumstances. The court instructed the jury that it was to render "an advisory sentence based upon [its] determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist." Although Florida law provided a total of eleven aggravating circumstances at the time Evans murdered Pfeiffer, see id. § 921.141(5)(a)-(k), the court decided that the evidence would support
(Emphasis added.) About mitigating circumstances, the court instructed the jury: "Among the mitigating circumstances you may consider, if established by the evidence, are age of the Defendant at the time of the crime, any other aspect of the Defendant's character, record, or background that would mitigate against the imposition of the death penalty." The court explained that while aggravating circumstances had to be established beyond a reasonable doubt in order for the jury to consider them, mitigating circumstances did not require the same level of proof. It told the jury that: "If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established."
The jury returned a verdict recommending by a vote of nine to three that Evans be sentenced to death. The practice in Florida is for the advisory verdict not to specify which aggravating circumstances the jury found and this verdict followed that practice. It did not indicate whether the jury had found the pecuniary gain aggravating circumstance or the cold, calculated and premeditated aggravating circumstance, or both. We do know, however, that the jury had to have found one or both of those aggravating circumstances or it would not have returned the verdict that it did. See Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985) ("[W]e adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions."); see also United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir.2011) ("We presume that juries follow the instructions given to them."); United States v. Townsend, 630 F.3d 1003, 1013-14 (11th Cir.2011) (same).
After the jury recommended a death sentence, the trial court held a Spencer
Seeking postconviction relief in state court, Evans filed a motion under Florida Rule of Criminal Procedure 3.851, asserting six claims for relief, including for the first time a claim that Florida's capital sentencing statute, Fla. Stat. § 921.141, violates the Sixth Amendment, as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Evans then filed a 176-page petition for a writ of habeas corpus in federal district court, raising 17 claims for relief. The district court denied habeas relief on 16 of Evans' claims but granted him relief from his death sentence on his seventeenth claim, ruling that Florida's capital sentencing statute violates the Sixth Amendment as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The State filed a motion to alter or amend, contending that the district court had erred in that part of its ruling; the district court denied that motion.
Evans also filed a motion to alter or amend, which the district court denied, reasserting its rejection of Evans' claims that (1) his Sixth Amendment right to a public trial was violated; (2) his counsel was ineffective during the guilt stage of the trial; and (3) his Eighth and Fourteenth Amendment rights were violated because the trial court did not require the State to specify its theory of the prosecution.
The district court granted Evans a certificate of appealability on two of his claims: (1) that his rights were violated by closure of the courtroom during voir dire; and (2) that his counsel rendered ineffective assistance by failing to call Mindy McCormick to testify. The State appealed the district court's grant of habeas relief on Evans' Ring claim, and Evans cross-appealed the district court's denial of relief on the two claims on which the district court had granted a certificate of appealability.
Evans asked this Court to expand the certificate of appealability, and we did but only insofar as it concerned his claim that counsel was ineffective at the guilt phase for failing to call alibi and impeachment witnesses. We will take up the issue in the State's appeal before moving to Evans' cross-appeal.
The State appeals the part of the district court's judgment that granted Evans habeas relief from his death sentence on the theory that application of the jury sentencing provisions of the Florida statute violated his Sixth Amendment rights, as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Florida's procedures comply with the Sixth Amendment and Ring, according to the State, because a judge may sentence a defendant to death only after considering
Three lines of Supreme Court decisions are relevant to our decision in this case. The first line of decisions specifically upholds the advisory jury verdict and judicial sentencing component of Florida's capital punishment statute. The second line involves the unconstitutionality of Arizona's former capital sentencing procedures under which a judge, without any input from the jury, found the facts necessary to authorize a death sentence. The third and decisive line of decisions instructs us to follow directly applicable Supreme Court decisions until that Court itself explicitly overrules them.
We begin with the line of decisions upholding Florida's allocation of sentencing functions between the jury and judge in capital cases. Under Florida law, after a jury convicts a defendant of a capital felony, the trial court must conduct a separate sentence proceeding before the jury. Fla. Stat. § 921.141(1) (1990). The jury must then "render an advisory sentence to the court, based upon [the jury's determination of] the following matters: (a) [w]hether sufficient [statutory] aggravating circumstances exist ...; (b) [w]hether sufficient mitigating circumstances exist which outweigh the aggravating circumstances ...; and (c) [b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death." Id. § 921.141(2)(a)-(c). After the jury renders its advisory sentence:
Id. § 921.141(3)(a)-(b). The court's findings must specify the statutory aggravating and any mitigating circumstances that do exist. See, e.g., Oyola v. State, 99 So.3d 431, 446, No. SC 10-2285, 2012 WL 4125816, at *12 (Fla. Sept. 20, 2012) ("[A] sentencing order must expressly consider each proposed mitigating circumstance, determine if the circumstance exists, and, if the circumstance does exist, what weight to allocate it. For [the Florida Supreme] Court to sustain a trial court's final decision in its sentencing order, competent, substantial evidence of record must support the trial court's weighing process. Moreover, the trial court's sentencing order must reflect `reasoned judgment' by the trial court as it weighed the aggravating and mitigating circumstances.") (citations omitted). In making the sentence determination, the trial court must give "great weight" to the jury's advisory sentence. Tedder v. State, 322 So.2d 908, 910
In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the Supreme Court upheld Florida's judge-based death sentencing procedure under the Eighth Amendment. In reaching that conclusion, the Court stated:
Id. at 252-53, 96 S.Ct. at 2966-67 (plurality opinion) (citations and quotation marks omitted).
The Supreme Court returned to Florida's death sentencing procedures in Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). In that case the defendant contended the trial judge had violated the Sixth Amendment by sentencing him to death even though the jury had recommended a life sentence. Id. at 457, 104 S.Ct. at 3160. Rejecting that contention, the Court reasoned that "[t]he fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause ... does not mean that it is like a trial in respects significant to the Sixth Amendment's guarantee of a jury trial." Id. at 459, 104 S.Ct. at 3161. The Court continued:
Id. (citations omitted).
The Court reevaluated Florida's judge-based death sentencing procedure five years later in Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728
While the Hildwin decision is the Supreme Court's last word in a Florida capital case on the constitutionality of that state's death sentencing procedures, the Court did speak favorably again about those procedures in a decision involving Alabama's capital punishment statute. Harris v. Alabama, 513 U.S. 504, 508-09, 515, 115 S.Ct. 1031, 1034, 1037, 130 L.Ed.2d 1004 (1995). Alabama's sentencing procedures, like Florida's, provide for an advisory jury sentencing verdict. See id. at 508, 115 S.Ct. at 1034. A difference is that, unlike Florida, Alabama allows a judge to impose a death sentence without giving a jury's advisory verdict recommending life "great weight." In comparing the two procedures, the Court said:
Id. at 510-11, 115 S.Ct. at 1035 (some citations omitted). The Court went on in the Harris case to uphold the Alabama statute anyway, but its opinion makes clear that Florida's Tedder standard adds a measure of protection to the jury's role in sentencing. Just three years ago the Court reiterated that point, stating: "In Florida, the sentencing judge makes the determination as to the existence and weight of aggravating and mitigating circumstances and the punishment, Fla. Stat. § 921.141(3), but he must give the jury verdict of life or death `great weight.'" Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 453, 175 L.Ed.2d 398 (2009).
The Supreme Court's confidence in the Florida Supreme Court's stringent application of the Tedder standard has not been misplaced. The State represents to us that the last time the Florida Supreme Court affirmed a trial judge's decision to sentence to death a defendant for whom the jury had not recommended a death sentence was eighteen years ago. Appellant/Cross-Appellee's Reply Br. at 14 n. 4; see Washington v. State, 653 So.2d 362 (Fla.1994).
We next turn to the line of decisions assessing the constitutionality of Arizona's former death sentencing procedures. An Arizona statute provided that, after a defendant was convicted of first-degree murder, the trial judge would "conduct a separate sentencing hearing to determine the existence or nonexistence of [statutory] circumstances ... for the purpose of determining the sentence to be imposed." Ariz.Rev.Stat. Ann. § 13-703(C) (West Supp.2001). The statute specified that "[t]he hearing shall be conducted before the court alone" and that "[t]he court alone shall make all factual determinations required." Id. (emphasis added). After the sentence hearing, the judge would find the existence or nonexistence of statutory "aggravating circumstances" and any "mitigating circumstances." A death sentence could be imposed only if the judge found at least one statutory aggravating circumstance and found that "there [were] no mitigating circumstances sufficiently substantial to call for leniency." Id. § 13-703(F).
So, the Arizona statute was like Florida's in that no death sentence could be imposed unless the trial judge found that the facts and circumstances established an aggravating circumstance or circumstances justifying the death penalty. The statutes were different, however, because under the Arizona statute the jury played no part at all in sentencing and did not constrain in any way the judge's sentencing authority.
The Supreme Court first considered the constitutionality of Arizona's judge-only death sentencing procedure in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). The defendant contended that Arizona's procedure violated the Sixth Amendment, and he sought a broad ruling that the Constitution requires that a jury, not a judge, make the findings of fact underlying the death sentencing decision. Id. at 647, 110 S.Ct. at 3054. The Supreme Court rejected that contention and upheld Arizona's procedure, noting that in Hildwin it had upheld Florida's similar judge-based death sentencing procedure. Id. at 647-49, 110 S.Ct. at 3054-55. The Court reiterated in Walton that the Sixth Amendment does not require a state to "permit only a jury to determine the existence of ... circumstances" that authorize a death sentence. Id. at 649, 110 S.Ct. at 3055.
Ten years later the Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
Because Ring concluded that under the Sixth Amendment "[c]apital defendants, no less than noncapital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment," 536 U.S. at 589, 122 S.Ct. at 2432, Evans contends — and the district court concluded — that his death sentence is unconstitutional because the trial judge in his case, not the jury, ultimately found the facts that authorized the death penalty. See Fla. Stat. § 921.141(3)(a) (requiring the trial judge to find that "sufficient [statutory] aggravating circumstances" exist). The State counters that Evans' death sentence does not conflict with the Ring decision because the trial judge sentenced Evans to death only after considering and agreeing with the jury's advisory death sentence, which itself found the existence of an aggravating circumstance or circumstances sufficient to support a death sentence. The jury's verdict necessarily contained such findings because the jury was instructed that it could not recommend a death sentence unless it found beyond a reasonable doubt that one or more aggravating circumstances existed and also found after considering the mitigating
The State is correct that its death sentencing procedures do provide jury input about the existence of aggravating circumstances that was lacking in the Arizona procedures the Court struck down in Ring. It is not just that a Florida jury renders an advisory verdict addressing the existence of aggravating circumstances, see Fla. Stat. § 921.141(2)(a), but also that the sentencing judge must give the jury's sentencing verdict "great weight," see, e.g., Tedder, 322 So.2d at 910; see also supra pp. 1255-56, 1256-57, 1258-59 & n. 4 (discussing application of Florida's Tedder standard). The Supreme Court has not decided whether the role that a Florida jury plays in the death-eligibility determination is different enough from the absence of any role, which was involved in Ring, for the Florida procedures to be distinguishable.
In its Walton opinion, the Court did make these statements about the Florida and Arizona death sentencing procedures in the course of upholding the Arizona procedures:
497 U.S. at 648, 110 S.Ct. at 3054. Nine years later, however, the Supreme Court recognized that there is a difference in the jury's role in the two sets of procedures, which may be constitutionally significant. See Jones v. United States, 526 U.S. 227, 250-51, 119 S.Ct. 1215, 1227-28, 143 L.Ed.2d 311 (1999). In Jones, which interpreted the penalty provisions of the federal carjacking statute, 18 U.S.C. § 2119, the Court discussed favorably its Hildwin decision and pointed out that Florida juries do play an important role in the capital sentencing process: "In [Florida], a jury ma[kes] a sentencing recommendation of death, thus necessarily engaging in the factfinding required for imposition of a higher sentence, that is, the determination that at least one aggravating factor had been proved." Jones, 526 U.S. at 250-51, 119 S.Ct. at 1228.
Three years later came the Ring decision, which overruled Walton. In the course of doing that, the Supreme Court had this to say in Ring about the Florida procedures and the Hildwin decision, which had provided some of the support for the reasoning in the Walton case:
Ring, 536 U.S. at 598, 122 S.Ct. at 2437. That passage may be read to imply a retreat from the reasoning behind the Hildwin decision, but nowhere in its Ring opinion did the Court say that it was overruling Hildwin.
And there are indications in Ring that the Court did not mean to overrule even implicitly its Hildwin decision. As they concern the Sixth Amendment rights recognized in Apprendi, the Court in Ring divided into three categories the 38 states with capital sentencing procedures at that time. One category consisted of the 29 states which "generally commit sentencing decisions to juries," Ring, 536 U.S. at 608 n. 6, 122 S.Ct. at 2442 n. 6, and for that reason have no Apprendi problem. The second category consisted of the five States (Arizona and four others) that "commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges," id., and for that reason run afoul of the Apprendi decision. The Court's third category consisted of four states, including Florida, that had "hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations." Id.
By placing Florida's sentencing procedures in a "hybrid" category separate from the jury-only category of sentencing procedures that are clearly permissible, and separate from the judge-only category of sentencing procedures that are impermissible under Ring, the Court indicated that its decision in the Ring case might not be inconsistent with its earlier Hildwin decision; it indicated that the question of whether Hildwin should be overruled was left for another day. Otherwise, there was no point in separating out, as the Court did, the hybrid system. If the Court had intended to rule in Ring that jury-only sentencing was required in capital cases, there would be only two categories that mattered: those in which the jury sentenced and those in which the judge did; hybrid systems would not be a separate category.
Having set out the line of decisions upholding the constitutionality of Florida's advisory jury verdict system, and the line of decisions casting doubt on the constitutionality of that system, we turn now to the third and decisive line of decisions in these circumstances.
The Supreme Court has not always been consistent in its decisions or in its instructions to lower courts. There are, however, some things the Court has been perfectly consistent about, and one of them is that "it is [that] Court's prerogative alone to overrule one of its precedents." United States v. Hatter, 532 U.S. 557, 567, 121 S.Ct. 1782, 1790, 149 L.Ed.2d 820 (2001) (quotation marks omitted). The Supreme Court has told us many times "that, `if a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court, the prerogative of overruling its own decisions.'" Jefferson Cnty. v. Acker, 210 F.3d 1317, 1320 (11th Cir.2000) (alteration omitted) (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989)). Even if a Supreme Court decision looks dead to us, "the Supreme Court has insisted on reserving to itself the task of burying its own decisions." Id. at 1320. We must not, to borrow Judge Hand's felicitous words, "embrace the exhilarating opportunity of anticipating" the overruling of a Supreme Court decision. Walsh, 139 F.2d at 823 (Hand, J., dissenting).
The high Court could not have been clearer about this than it has been. The Court has told us, over and over again, to follow any of its decisions that directly applies in a case, even if the reasoning of that decision appears to have been rejected in later decisions and leave to that Court "the prerogative of overruling its own decisions." Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 1237, 161 L.Ed.2d 82 (2005) (quotation marks omitted); accord Hatter, 532 U.S. at 567, 121 S.Ct. at 1790 (overruling one of its earlier decisions but noting with approval that the court of appeals had not done so because, while doubt had been cast on that earlier decision the Supreme Court had not expressly overruled it); Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 1978, 141 L.Ed.2d 242 (1998) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continued vitality."); State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 284, 139 L.Ed.2d 199 (1997) ("Despite what Chief Judge Posner aptly described as Albrecht's [v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968)] infirmities, and its increasingly wobbly, moth-eaten foundations, there remains the question whether Albrecht deserves continuing respect under the doctrine of stare decisis. The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court's prerogative alone to overrule one of its precedents." (alteration and citation omitted)).
A good example of how serious the Supreme Court is about its supreme prerogative rule is Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). In that case the lower courts had refused to vacate an injunction that was based on the Supreme Court's earlier decision in Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), even though Aguilar simply could "not be squared with" some of the Court's intervening decisions, which had brought about "a significant change in" the applicable constitutional law. Agostini, 521 U.S. at
Id. at 237, 117 S.Ct. at 2017 (alteration and quotation marks omitted). And that is true even where the earlier Supreme Court decision that directly applies "cannot be squared with" the Court's later jurisprudence in the area that has "significantly change[d]" the law. Id. at 521 U.S. at 208-09, 235-36, 117 S.Ct. at 2003, 2016. It is true even if the earlier decision has "infirmities" and "increasingly wobbly, moth-eaten foundations." Khan, 522 U.S. at 20, 118 S.Ct. at 284.
Like the lower courts in Agostini and in Khan, we have always been careful to obey the supreme prerogative rule and not usurp the Supreme Court's authority to decide whether its decisions should be considered overruled. See United States v. Greer, 440 F.3d 1267, 1275-76 (11th Cir. 2006) ("The problem with lower courts basing decisions on predictions that the Supreme Court will overturn one of its own decisions is that the Supreme Court has repeatedly told us not to do it. We take that admonition seriously.") (citations omitted); Jefferson Cnty., 210 F.3d at 1320; Brisentine v. Stone & Webster Eng'g Corp., 117 F.3d 519, 525 (11th Cir.1997) ("It may be that the Supreme Court has cut Alexander [v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974),] back so far that it will not survive. Perhaps, but we are not convinced we are authorized to sing the dirge of Alexander. We will leave that to the Supreme Court...."); Eng'g Contractors Ass'n of S. Fla. Inc. v. Metro. Dade Cnty., 122 F.3d 895, 908 (11th Cir.1997) ("[W]e are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.").
The problem with Evans' argument that Ring, which held that Arizona's judge-only capital sentencing procedure violated the Sixth Amendment, controls this case is the Hildwin decision in which the Supreme Court rejected that same contention. See Hildwin, 490 U.S. at 640-41, 109 S.Ct. at 2057 (considering the procedures prescribed by Fla. Stat. § 921.141 (Supp.1988) and holding that "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury."). Hildwin is directly on point, and it is binding on us, unless and until the Supreme Court explicitly overrules it. Although the Court in Ring overruled Walton, it did not overrule
It is true that a principled argument can be made that the Supreme Court's statement in Hildwin that "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury," 490 U.S. at 640-41, 109 S.Ct. at 2057, conflicts with the Court's reasoning in Ring that "[c]apital defendants, no less than noncapital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment," Ring, 536 U.S. at 589, 122 S.Ct. at 2432.
In his cross-appeal, Evans contends that his Sixth Amendment right to a public trial was violated when the court partially closed the voir dire proceedings because of the limited seating that was available in a small hearing room. That room was used
We agree with the district court's reasoning and resolution of this issue but add three points about the nature of the deference due the Florida Supreme Court's decision under § 2254(d). First, Evans' best arguments on this issue rely on Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), but that Supreme Court decision was issued more than nine years after the Florida Supreme Court decided this issue in this case. It is hornbook AEDPA law that the only Supreme Court decisions against which a state court decision is to be measured are those on the books at the time the state court decision was issued. Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 45, 181 L.Ed.2d 336 (2011) (a Supreme Court decision issued three months after the last state court decision on the merits of a federal constitutional issue cannot be considered in determining clearly established federal law for § 2254(d)(1) purposes); Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011) ("State-court decisions are measured against [the Supreme] Court's precedents as of the time the state court renders its decision.") (quotation marks omitted); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003) (explaining that "clearly established Federal law under § 2254(d)(1)" is measured "at the time the state court renders its decision") (quotation marks omitted).
Second, Evans also relies on some decisions of this Court to support his position on this issue. But a federal court of appeals decision favorable to a habeas petitioner cannot clearly establish that a state court decision of a federal constitutional issue is contrary to or an unreasonable application of federal law under § 2254(d)(1). See Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) ("The Sixth Circuit also erred by consulting its own precedents, rather than those of this Court, in assessing the reasonableness of the Kentucky Supreme Court's decision.... As we explained in correcting an identical error by the Sixth Circuit two Terms ago, circuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court,' 28 U.S.C. § 2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA.") (citation omitted); Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006) ("Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court unreasonably applied clearly established Federal law.") (quotation marks and alterations omitted);
Third, the obstacles that a habeas petitioner faces under § 2254(d)(1) are daunting. Bobby v. Dixon, ___ U.S. ___, 132 S.Ct. 26, 27, 181 L.Ed.2d 328 (2011) ("Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.") (quotation marks omitted); Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1411, 179 L.Ed.2d 557 (2011) ("We have said time and again that an unreasonable application of federal law is different from an incorrect application of federal law.") (quotation marks omitted); Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1939-40, 167 L.Ed.2d 836 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 785-86, 178 L.Ed.2d 624 (2011) ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.") (quotation marks omitted); Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir.2011) (en banc) ("Under AEDPA, our review of a final state habeas decision is greatly circumscribed and is highly deferential to the state courts.") (quotation marks omitted); Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 910 (11th Cir.2011) ("Stated the other way, only if there is no possibility fairminded jurists could disagree that the state court's decision conflicts with the Supreme Court's precedents may relief be granted.") (quotation marks and alteration omitted). Evans' closure claim does not clear these high hurdles.
Evans' final contention is that his counsel rendered ineffective assistance of counsel by failing to call seven potential witnesses at the guilt stage of the trial. The Florida Supreme Court rejected this claim on performance grounds without reaching the prejudice issue. Evans, 995 So.2d at 943-45. That court explained in detail why not calling each of the potential
Johnson, 643 F.3d at 910-11. We agree with the district court that this is not one of those rare cases.
In addition to the reasons the Florida Supreme Court gave for its decision and the reasons the district court gave for finding that decision to be reasonable as to six of the potential witnesses, we add the point that "[w]hich witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc); accord Cook v. Warden, 677 F.3d 1133, 1137 (11th Cir.2012); Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 759 (11th Cir.2010).
If, as it appears, the district court reviewed the part of the ineffective assistance of counsel claim involving potential witness McCormick without any deference to the state court decision, it erred. The Florida Supreme Court decided that Evans had failed to establish performance deficiency under Strickland as to all of the potential witnesses, including McCormick, and its decision was entitled to full AEDPA deference under § 2254(d)(1). The question is not how the district court or this Court would rule if presented with the issue for the first time and not whether we think the state court decision is correct, but whether its decision is contrary to or an unreasonable application of clearly established federal law. Bobby, 132 S.Ct. at 27; Cullen, 131 S.Ct. at 1410-11; Schriro, 550 U.S. at 473-74, 127 S.Ct. at 1939-40. We need not decide that, however, because we agree with the district court that, for the reasons it stated, Evans has not established that he was prejudiced by his counsel's failure to call McCormick as a witness.
One of Evans' arguments is that the district court's analysis of the prejudice issue as to potential witness McCormick was flawed because the court did not consider any prejudice Evans suffered from the failure to call six other potential witnesses. The prejudice inquiry, he insists, must be a cumulative one. It is Evans' argument, not the district court's analysis, that is flawed. While the prejudice inquiry should be a cumulative one as to the effect of all of the failures of counsel that meet the performance deficiency requirement, only the effect of counsel's actions or inactions that do meet that deficiency requirement are considered in determining prejudice. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 ("[A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution"); id. at 694, 104 S.Ct. at 2068 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.") (emphasis added). Because Evans has failed to show any deficiency in counsel's performance based on not calling any of the other six witnesses, there is no deficiency to accumulate in order to establish prejudice. Cf. Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) ("[N]one of Morris's individual claims of error or prejudice have any merit, and therefore we have nothing to accumulate."). We reject Evans' cumulative prejudice argument.
We also reject Evans' argument that "the focus of a court's prejudice inquiry must be to try to find a constitutional violation, by engaging with the evidence and speculating as to its cumulative effect." Appellee/Cross-Appellant's Reply Br. at 13. Our role is not to try and find a way to set aside state court judgments. The Supreme Court has instructed us that "a court must indulge a strong presumption that counsel's conduct falls within the
The district court's judgment is affirmed insofar as it denied relief as to Evans' conviction but reversed insofar as it granted relief as to his sentence.
On the sixth claim, Evans argued to the state collateral court that the capital sentencing procedures in Fla. Stat. § 921.141 violated his Sixth Amendment right under Ring to have a unanimous jury determine his guilt on all elements of capital first degree murder. He made the same argument based on Apprendi, but the state collateral court found that he had already raised that claim on direct appeal and that it was "both without merit and procedurally barred." Doc. 12-35 at 70. In Evans' federal habeas petition, he did not pursue that "unanimity" claim. Instead, he asserted that Florida's death penalty procedures violated Ring because "they do not allow the jury to reach a verdict with respect to an aggravating fact that is an element of the aggravated crime punishable by death." Doc. 1 at 176 (quotation marks and alteration omitted). Evans pointed out that "Florida law only requires the judge to consider the recommendation of a majority of the jury." Id. (quotation marks omitted). Evans also argued that his sentence was unconstitutional because "the aggravating circumstances were not alleged in the indictment." Id. at 177. In its order on the State's motion to alter or amend the judgment granting habeas relief, the district court distinguished Evans' Ring claim from the unanimity claim he had made on direct appeal and to the state collateral court, explaining that those were "two separate and distinct claims" and that the Ring decision "does not decide this issue or even address the need for unanimity." Doc. 27 at 16.
The six ineffective assistance at the guilt phase subclaims were: (1) failing to object to an individual juror's participation in trial; (2) failing to timely request a hearing under Richardson v. State, 246 So.2d 771 (Fla.1971); (3) failing to object to inflammatory and prejudicial comments elicited by the State; (4) failing to object to improper bolstering of witness credibility; (5) failing to object during the State's closing argument regarding mutually exclusive factual theories of prosecution; and (6) failing to present evidence. Id. at 939 n. 8. The two ineffective assistance at the sentence stage subclaims were: (1) failing to present mitigation; and (2) failing to object to serious misstatements of the law, including that the jury's role was merely advisory and that Evans had the burden of proof to establish that mitigation outweighed aggravation. Id. at 939 n. 9.
The Supreme Court held in Apprendi that the defendant's enhanced sentence violated his Sixth Amendment right to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id. at 477, 120 S.Ct. at 2356. The Court explained that the Sixth Amendment does not permit a defendant to be "expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Id. at 483, 120 S.Ct. at 2359.
Evans, 995 So.2d at 945 (footnote omitted). The court also noted:
Id. at n. 16.