Case: 10-12073    Date Filed: 06/27/2013   Page: 1 of 30


                                                                        [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 10-12073
                          ________________________

                   D.C. Docket No. 2:05-cv-02357-SLB-RRA



CHRISTOPHER EUGENE BROOKS,

                                                            Petitioner - Appellant,

                                      versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                                         Respondents - Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (June 27, 2013)

Before BARKETT, HULL and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

      Petitioner Christopher Brooks was convicted of murdering a female

acquaintance in the course of a rape, robbery, and burglary and was sentenced to
              Case: 10-12073      Date Filed: 06/27/2013     Page: 2 of 30


death in Alabama state court. The issue presented by this appeal is whether

Brooks’s direct appellate counsel rendered ineffective assistance by inadequately

litigating his trial counsel’s ineffective assistance at the penalty phase of his trial.

Trial counsel presented only one witness -- Brooks’s mother -- in mitigation.

Brooks says that trial counsel should have sought out and presented more

mitigation evidence: in particular, witnesses testifying to his good character,

evidence of his moderate alcoholism, and the fact that he was intoxicated on the

night of the crime. He faults his direct appellate counsel for two alleged

deficiencies. First, his direct appellate counsel raised the ineffectiveness-of-trial-

counsel claim with regard to the failure to introduce good-character evidence, but

she did not seek out and failed to present any character witnesses herself. This

meant that Brooks was unable to show that his trial counsel’s decision not to

present character witnesses prejudiced him at trial. Second, his direct appellate

counsel did not even raise the claim that his trial counsel should have discovered

and presented evidence of his alcoholism and intoxication on the night of the

murder.

      The district court denied Brooks’s 28 U.S.C. § 2254 petition, finding that the

Alabama Court of Criminal Appeals reasonably applied Strickland v. Washington,

 (1984), in rejecting this claim. The Court of Criminal Appeals held,

in relevant part, that Brooks’s trial counsel’s failings did not prejudice him during


                                            2
              Case: 10-12073    Date Filed: 06/27/2013   Page: 3 of 30


the penalty phase because there was no reasonable probability that the balance of

aggravating and mitigating factors, even including all of the mitigating evidence

Brooks now says should have been presented, would have weighed in favor of life

imprisonment rather than death. Consequently, his appellate counsel could not

have prejudiced Brooks during his direct appeal. After thorough review, we

conclude that this determination was reasonable and, therefore, affirm.

                                         I.

                                        A.

      In 1993, Brooks was convicted of murder during the course of a rape,

robbery, and burglary, see Ala. Code § 13A-5-40(a)(2)-(4), for killing Jo

Campbell. The Alabama Court of Criminal Appeals summarized the underlying

facts of the case:

            The evidence at trial showed that the appellant and the victim
      met while working as counselors at a camp in New York state. On
      December 31, 1992, the victim’s body was found under the bed in the
      bedroom of her apartment in Birmingham, Alabama. She had been
      bludgeoned to death, and she was naked from the waist down.

             On the night before the victim’s body was found, a co-worker
      of the victim’s saw the appellant enter the restaurant where they
      worked and saw the victim talking to the appellant. Later that night,
      the victim spoke with another friend by telephone; that friend heard a
      male voice in the background and the victim told her friend that a
      friend was sleeping on her living room floor.

            A DNA analysis was performed on semen found in the victim’s
      vagina. The results were compared with the appellant’s blood. There
      was testimony that the odds of finding another person with the same
                                         3
              Case: 10-12073    Date Filed: 06/27/2013    Page: 4 of 30


      DNA as the appellant’s and as found in the semen taken from the
      victim’s body would be 1 in 69,349,000 among white persons . . . . A
      latent print of the appellant’s palm was found on the victim’s left
      ankle. A bloody fingerprint matching the appellant’s was found on a
      doorknob in the victim’s bedroom, as were two other matching latent
      fingerprints. The appellant’s thumbprints were also found on a note in
      the victim’s apartment.

             The evidence further showed that the appellant was seen
      driving the victim’s car on the night of December 31 and that he told a
      witness that he “had to fuck that girl to get that car.” The car was
      found in Columbus, Georgia, where the appellant resided. Inside the
      car was a package of photographs with the name “Brooks, C.” on the
      package. When the appellant was arrested, he had in his possession
      the victim’s car keys and her Shell Oil Company credit card, which he
      had used on several occasions. He had also cashed the victim’s
      paycheck and one of her personal checks. Several items were missing
      from the victim’s apartment and the evidence showed that the
      appellant had pawned these items at various pawnshops in Columbus.

Brooks v. State, 

, 178-79 (Ala. Crim. App. 1996) (“Brooks I”)

(footnote omitted). “The record also reflects that after searching Brooks’s

apartment, the police recovered the keys to the victim’s automobile; pawn tickets;

the victim’s AT&T answering machine; and receipts from purchases that had been

made with the victim’s Shell Oil Company credit card.” Ex parte Brooks, 

 184, 187 (Ala. 1997) (“Brooks II”).

      At trial, the state also established several other facts. Another man, Robert

Leeper, a friend of Brooks who had traveled with him to Birmingham, was with

Brooks and the victim at the time. The police officer who found Campbell’s body

testified that he found both a portion of a baseball bat and a barbell with one end


                                          4
              Case: 10-12073     Date Filed: 06/27/2013   Page: 5 of 30


broken off in the apartment. Dr. Gary Simmons, the medical examiner who had

performed the victim’s autopsy, also testified. He said that the cause of death was

blunt force trauma to the head and neck. In addition, his examination revealed an

abrasion on the victim’s vagina. The prosecution’s theory of the case was that

Brooks, not Leeper, committed the murder, since the evidence demonstrated that

he had intercourse with Campbell and his bloody fingerprint was found on the

doorknob. The jury convicted Brooks of three counts of capital murder for killing

the victim during the course of a rape, during the course of a robbery, and during

the course of a burglary. Brooks v. State, 

, 494 (Ala. Crim. App.

2005) (“Brooks III”).

      At the penalty phase of the trial, the state put on several witnesses to

establish the aggravating circumstance that the murder was especially heinous,

atrocious, or cruel. See Ala. Code § 13A-5-49(8). The main witness was Simmons,

who returned to the stand to describe the severe injuries to Campbell’s body. In

addition, the state admitted into evidence photographs of those injuries. Campbell

had several lacerations and bruises to her face, extensive fractures at the base of

her skull, evidence of internal bleeding into her lungs, contusions to the brain,

hemorrhaging in the eye, injuries to the neck either from blunt force trauma or

strangulation, a broken nose, a fractured jawbone, and several missing teeth, some

of which had lodged in her windpipe. In Simmons’s opinion, the injuries resulted


                                          5
                  Case: 10-12073         Date Filed: 06/27/2013   Page: 6 of 30


from being struck five to eight times with a heavy blunt object. Simmons also

testified that the hemorrhaging and brain swelling indicated that the victim was

alive throughout at least part of the attack, and that she could have lived for

anywhere from five minutes up to several hours after the attack, although he could

not know whether or for how long she remained conscious.

         Brooks’s trial counsel put on only one witness in mitigation, Brooks’s

mother, Norma Silva. Her testimony consisted mostly of basic, biographical

information, including the fact that Brooks was twenty at the time of the murder,

that Brooks’s father had no role in raising him, and that he had only one prior

criminal conviction, a petty larceny misdemeanor.1


1
    The entirety of the testimony is reproduced below:

         Q: Give us your name, please, ma’am.

         A: Norma Silva.

         Q: Where do you live?

         A: Eastern part of Tennessee.

         Q: Are you related to Christopher Brooks?

         A: Yes, sir, I am.

         Q: What is the nature of that relationship?

         A: I am his mother.

         Q: When was Chris born?

         A: 12/13/72.


                                                  6
                Case: 10-12073       Date Filed: 06/27/2013        Page: 7 of 30


      In closing argument, defense counsel argued that there was enough residual

doubt so that, even though the jury had convicted Brooks, it should not recommend


      Q: Where was that, please, ma’am?

      A: Watertown, New York.

      Q: When was the last time that you and Chris saw his father?

      A: When he was two months old.

      Q: How old was Chris at the end of December of this year -- of 1992, I’m sorry?

      A: Twenty.

      Q: Just turned twenty?

      A: I believe so, yes.

      Q: Has Chris ever had any prior convictions until today --

      A: Yes, sir.

      Q: -- with the law? What was that, please, ma’am?

      A: That was petty larceny, misdemeanor.

      Q: When was that?

      A: Back in ’90.

      Q: How old was he, if you recall, at that time?

      A: Eighteen.

      Q: And where was that?

      A: That was in Watertown, New York.

      Q: Did y’all live up there at that time?

      A: Yes.



                                                 7
              Case: 10-12073    Date Filed: 06/27/2013    Page: 8 of 30


sentencing him to death. As counsel put it, “[W]e can’t come back in a month or

six years, ten years, when you read about an electrocution in the paper and say, ‘I

lie awake at night and I wonder what happened.’ It will be too late.” Counsel

repeatedly stressed that no one could definitively know what had occurred on the

night of the murder. Finally, he emphasized that Brooks had no serious criminal

history, which was a mitigating circumstance that favored sentencing Brooks to

life imprisonment.

      The jury recommended the death sentence by a vote of eleven to one.

Brooks III, 929 So. 2d at 494. The trial court found two aggravating circumstances

applied: first, the commission of the murder occurred during the course of a rape,

robbery, burglary, or kidnapping, Ala. Code § 13A-5-49(4); and, second, the crime

was especially heinous, atrocious, or cruel compared to other capital offenses, Ala.

Code § 13A-5-49(8). As for mitigating circumstances, the trial court found, based

in part on Silva’s testimony, that: Brooks had no significant history of prior

criminal activity, Ala. Code § 13A-5-51(1); and he was only twenty at the time of

the crime, Ala. Code § 13A-5-51(7). The court found no nonstatutory mitigating

circumstances. The trial court weighed the aggravating and mitigating

circumstances, found that the former outweighed the latter, and sentenced Brooks

to death.

                                         B.


                                          8
              Case: 10-12073    Date Filed: 06/27/2013   Page: 9 of 30


      A new lawyer -- Virginia Vinson -- was appointed to replace trial counsel.

Vinson is the attorney whose alleged ineffectiveness is the subject of the current

appeal. Vinson moved for a new trial, in part based on trial counsel’s

ineffectiveness at adequately investigating and presenting mitigating character

evidence. She did not, however, argue that trial counsel was ineffective for failing

to present evidence regarding Brooks’s intoxication and alcoholism.

      The trial court conducted an evidentiary hearing at which Brooks, his trial

counsel, Kenneth Gomany and James Scott Boudreaux, and the prosecutor, Roger

Brown, testified. Both Gomany and Boudreaux were experienced lawyers who had

tried capital cases before Brooks’s trial. Gomany and Boudreaux testified that they

did not hire an investigator or a psychologist to help develop mitigation evidence

but instead conducted their own investigation. Based on his interactions with

Brooks, Gomany saw no signs that Brooks suffered from psychological or

psychiatric conditions, and neither attorney uncovered any significant mitigating

circumstances. Brooks had pointed out possible character witnesses during trial,

but Boudreaux believed that “interject[ing] character as an issue . . . would make

the proceedings ludicrous,” since the horrific nature of the crime could not be

countered by character witnesses, and bringing in character evidence would have

opened the door to cross-examination on Brooks’s prior criminal history.




                                          9
             Case: 10-12073     Date Filed: 06/27/2013    Page: 10 of 30


      Boudreaux also explained the decision not to present character witnesses as

part of an informal deal struck after the guilt phase of the trial. The prosecutor

agreed to forego putting on “some very damaging potential testimony by the

victim’s family” as long as Brooks’s trial counsel did not introduce evidence of his

good character. Boudreaux believed that victim-impact testimony from Campbell’s

family, who were present “in mass during the trial, crying, sniffling, filling the

courtroom with themselves and their supporters,” would have “drive[n] even more

nails into the coffin in this case.” Brown, who also testified, confirmed that he

agreed that he wouldn’t “go into any of the what a wonderful person Ms. Campbell

was unless the defense puts somebody on the witness stand to sob and talk about

how wonderful the defendant is.”

      Based on this testimony, the trial court found that Gomany and Boudreaux

were not ineffective. The Alabama Court of Criminal Appeals affirmed Brooks’s

conviction and sentence. Brooks I, 

 at 184. As for trial counsel’s alleged

ineffectiveness, the Court of Criminal Appeals held that Brooks failed to satisfy

either prong of Strickland v. Washington’s test, in particular noting that “the

appellant did not inform the trial court at the hearing on his motion for new trial of

who these witnesses were and what they would testify to.” Brooks I, 

 at

181-82 (citations omitted).




                                          10
              Case: 10-12073    Date Filed: 06/27/2013    Page: 11 of 30


      The Alabama Supreme Court affirmed the Court of Criminal Appeals’s

decision, rejecting the ineffectiveness-of-trial-counsel claim on essentially the

same rationale. See Brooks II, 

 at 192. The United States Supreme Court

subsequently denied Brooks’s petition for certiorari. Brooks v. Alabama, 

 (1997).

                                          C.

      Brooks obtained new counsel for his Rule 32 petition, which he filed in

September 1998. His petition raised several claims that his direct appellate counsel

(Vinson) had ineffectively litigated his direct appeal. Two of those claims are the

subject of this appeal. First, Vinson failed to adequately investigate and present the

claim that trial counsel was ineffective during the penalty phase. Vinson raised trial

counsel’s ineffectiveness based on the failure to put on character witnesses, but she

did not seek out and present character witnesses herself. Second, Vinson failed to

even raise the claim that trial counsel was ineffective for not offering Brooks’s

alcoholism and intoxication during the murder as a mitigating circumstance.

                                          1.

      As part of his Rule 32 petition, Brooks presented testimony from several

witnesses whom his trial counsel could have called during the penalty phase of his

trial. Roy Harbor, whose daughter had dated Brooks in the summer of 1992,

testified that Brooks was “very well mannered, . . . mature, and very outgoing, a


                                          11
             Case: 10-12073     Date Filed: 06/27/2013    Page: 12 of 30


nice kid.” He had never known Brooks to be violent. Shirley Harbor, Roy Harbor’s

wife, was also deposed and said that Brooks was “very polite,” never misbehaved

or acted violently, and treated her daughter “very well.” The other four witnesses --

Rosemary Brooks, the defendant’s aunt; Ronald Brooks, the defendant’s uncle;

Norma Silva, Brooks’s mother; and Edgar Silva, Brooks’s stepfather -- all had the

same impression of Brooks’s character: in his youth, Brooks had been nice, mild-

mannered, polite, and nonviolent.

      Edgar Silva was the only one to express a concern regarding Brooks’s

character: “[T]he only thing I could really think that I didn’t like about him, he

liked to drink sometimes.” Nonetheless, he also remembered Brooks as nonviolent

and “even-tempered” as a child, not becoming provoked even when another child

pushed or kicked him.

                                          2.

      The same court and judge that presided over Brooks’s trial also presided

over his Rule 32 proceedings. At two evidentiary hearings, Brooks put on an expert

witness, Dr. William Beidleman, to testify to his alcoholism and the fact that he

was intoxicated on the night of the crime. Based on interviews with Brooks, a

number of tests, and his review of documentary materials, including Brooks’s past

arrests for alcohol-related offenses, Beidleman opined that Brooks exhibited

symptoms of alcoholism. Brooks scored 12 on the Michigan Alcoholism Screening


                                          12
             Case: 10-12073    Date Filed: 06/27/2013   Page: 13 of 30


Test, which classified him as a moderate alcoholic. In conversations with

Beidleman, Brooks had recounted that he began drinking heavily in the sixth or

seventh grade; that his drinking increased to the point where he drank every day by

the age of eighteen; and that he had experienced three to four alcohol-related

blackouts by that time.

      As for the events of December 30, 1992, Beidleman had reviewed additional

evidence, including police records of their interview with Leeper and a statement

taken from Angela Turman, an acquaintance of Brooks and Leeper. Leeper said

that the two men had gone to Birmingham, that he had gotten drunk, and that he

and Brooks returned to Campbell’s apartment, where Leeper fell asleep and did not

awake or hear anything during the night. Leeper never stated expressly that Brooks

was drunk, although he did say that he and Brooks drank a case of Michelob beer.

Turman told police that Brooks had told her that he and Leeper both had gotten

drunk, returned to the apartment, and passed out. In his interview with Beidleman,

Brooks claimed that he had consensual sex with Campbell on the night of her

murder. There is no indication that Brooks expressly told Beidleman that he was

intoxicated on the night of the offense. Nevertheless, Beidleman opined that, based

on all the evidence, Brooks “was indeed acutely intoxicated” at the time of the

murder. On cross-examination, Beidleman admitted that much of his evidence




                                         13
              Case: 10-12073    Date Filed: 06/27/2013   Page: 14 of 30


came from Brooks’s own statements or those of individuals who received their

information from Brooks.

      The state rebutted Beidleman’s testimony with its own expert, Dr. Glenn

King. King explained that Campbell’s murderer had engaged in “goal-directed

behaviors” -- he attempted to wipe down part of the apartment, concealed the body,

and stole things from the victim. He conceded that Brooks could have been

intoxicated, but opined that Brooks remained able to form the intent to kill. King

also testified that the state had administered the Wechsler Adult Intelligence Scale

to Brooks, and that Brooks was of average intelligence, almost exactly at the 50th

percentile.

                                          3.

      The Alabama trial court denied Brooks’s Rule 32 petition. It rejected his

ineffective-assistance-of-direct-appellate-counsel claims on Strickland’s

performance prong because Brooks had failed to demonstrate trial counsel’s

ineffectiveness during the penalty phase. Alternatively, the court also held that

Brooks had failed to satisfy Strickland’s prejudice prong.

      On appeal, the Alabama Court of Criminal Appeals affirmed, beginning with

its finding that trial counsel performed competently. Brooks III, 929 So. 2d at 511.

Moreover, on the issue of whether trial counsel prejudiced Brooks, the Court of

Criminal Appeals concluded:


                                         14
             Case: 10-12073      Date Filed: 06/27/2013   Page: 15 of 30


             In reviewing Brooks’s claim of prejudice under Strickland we
      have independently reweighed the aggravating circumstances that
      were found in this case against the alleged mitigating circumstances
      that were not presented at trial. We, like the circuit court, are
      confident that death was the appropriate sentence in this case and that
      any of the alleged mitigating evidence that was not presented at trial
      but that was presented at the Rule 32 proceedings would not have
      [a]ffected the result.

Id. at 512 (citation omitted). Although the court did not expressly extend this

analysis to direct appellate counsel, the implicit conclusion must have been that, if

trial counsel performed competently and did not prejudice Brooks, then there was

no way that appellate counsel’s failings in litigating the ineffectiveness-of-trial-

counsel claim could have prejudiced Brooks during his direct appeal. Thus, the

Court of Criminal Appeals denied Brooks’s Strickland claim.

      Since the Alabama Supreme Court denied certiorari review of this case,

Brooks III is the controlling state-court decision that we review pursuant to 28

U.S.C. § 2254. See Newland v. Hall, 

, 1199 (11th Cir. 2008).

                                          D.

      Brooks petitioned for a writ of habeas corpus from the United States District

Court for the Northern District of Alabama in 2005. The district court denied

Brooks’s § 2254 petition. As for direct appellate counsel’s failure to claim that trial

counsel was ineffective in not offering intoxication as a mitigating circumstance,

the district court determined that the state courts’ rejection of this claim was



                                          15
             Case: 10-12073     Date Filed: 06/27/2013    Page: 16 of 30


reasonable since competent trial counsel could have differed regarding whether to

present evidence of Brooks’s intoxication.

      As for direct appellate counsel’s failure to develop additional good-character

mitigating evidence, the district court found the state court’s decision was “not

unreasonable” because there was no evidence that the failure to present character

witnesses resulted in prejudice to Brooks during the penalty phase of his trial. We

subsequently granted Brooks a certificate of appealability (“COA”) “only with

respect to Petitioner’s claim that his trial counsel were ineffective in developing

and presenting mitigating evidence during the penalty phase of his trial and that his

appellate counsel were ineffective in presenting this issue on appeal.”

                                          II.

                                          A.

      We review de novo the district court’s denial of habeas relief pursuant to 28

U.S.C. § 2254. Wellons v. Warden, 

, 1206 (11th Cir. 2012). The

district court’s legal conclusions, and its resolution of mixed questions of law and

fact, also receive de novo review. Id. Since Brooks’s habeas petition was filed after

April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the following

provision governs his challenge:

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
                                          16
             Case: 10-12073    Date Filed: 06/27/2013     Page: 17 of 30


      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim --

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

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

28 U.S.C. § 2254(d).

      “Under AEDPA, our review of a final state habeas decision is greatly

circumscribed and is highly deferential to the state courts.” Hill v. Humphrey, 

, 1343 (11th Cir. 2011) (en banc) (internal quotation marks omitted). The

application of § 2254(d)(1)’s language is well-settled:

      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 (2000).

       “Claims of ineffective assistance of appellate counsel are governed by the

same standards applied to trial counsel under Strickland.” Philmore v. McNeil, 

, 1264 (11th Cir. 2009) (per curiam) (citing Heath v. Jones, 

, 1130 (11th Cir. 1991)); see also Smith v. Robbins, 

, 285 (2000).


                                         17
             Case: 10-12073     Date Filed: 06/27/2013    Page: 18 of 30


Under the first prong, Brooks must show that his direct appellate counsel’s

performance “fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. Under Strickland’s second prong, Brooks must show that there “is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. This inquiry

requires us to consider “the merits of the omitted claim,” Philmore, 575 F.3d at

1264-65, and we will find counsel’s performance prejudicial if “the neglected

claim would have a reasonable probability of success on appeal,” Heath, 941 F.2d

at 1132. When, as here, the claim concerns the failure to present mitigating

evidence, “we reweigh the evidence in aggravation against the totality of available

mitigating evidence,” Wiggins v. Smith, 

, 534 (2003), to determine

whether the petitioner suffered prejudice.

      Both prongs of the Strickland inquiry present mixed questions of law and

fact and therefore receive de novo review upon appeal. Cade v. Haley, 

, 1302 (11th Cir. 2000). However, our review of Brooks’s Strickland claims is

also subject to AEDPA deference. Thus, we do not merely evaluate whether, under

Strickland’s prejudice prong, there was a reasonable probability that the result of

Brooks’s proceeding would have been different. To grant relief, we must conclude

that no reasonable jurist could decide otherwise. If fairminded jurists could


                                          18
             Case: 10-12073      Date Filed: 06/27/2013    Page: 19 of 30


disagree about the correctness of the state court’s decision, then the state court’s

application of Strickland was not unreasonable, and AEDPA precludes the grant of

habeas relief. Evans v. Sec’y, Dep’t of Corrs., 

, 1326-27 (11th Cir.

2013) (en banc); cf. Harrington v. Richter, 

, 786 (2011).

      There is no dispute that the Alabama courts correctly identified the relevant

Supreme Court law: Strickland v. Washington. See Brooks III, 929 So. 2d at 497.

Therefore, Brooks must show that the Alabama Court of Criminal Appeals’s

decision was an unreasonable application of Strickland. This he cannot do.

                                           B.

      The essence of Brooks’s claim is that his direct appellate counsel

ineffectively presented or neglected to present two winning ineffective-assistance-

of-trial-counsel arguments during his direct appeal: first, that his trial counsel did

not prepare and put on character witnesses as mitigating evidence; and, second,

that his trial counsel did not discover and put on mitigating evidence that Brooks

was an alcoholic who was intoxicated on the night of the offense.

      We begin and end our analysis with Strickland’s prejudice prong. Because

we must reweigh the totality of the aggravating and mitigating evidence to

determine whether Brooks suffered prejudice, Wiggins, 539 U.S. at 534, we

evaluate his two ineffectiveness claims -- concerning good-character evidence and

intoxication evidence -- together. Since Brooks has failed to establish prejudice, we


                                           19
             Case: 10-12073     Date Filed: 06/27/2013    Page: 20 of 30


need not, and do not address direct appellate counsel’s performance. See

Strickland, 466 U.S. at 697; Holladay v. Haley, 

, 1248 (11th Cir.

2000) (“[T]he court need not address the performance prong if the defendant

cannot meet the prejudice prong, or vice versa.” (citation omitted)).

      In the Rule 32 collateral appeal, the Alabama Court of Criminal Appeals

concluded that, even if all of Brooks’s additional mitigating evidence had been

presented during the penalty phase, there was not a reasonable probability that it

would have altered the outcome of Brooks’s trial. See Brooks III, 929 So. 2d at

512. In other words, the state court determined that Brooks’s trial counsel’s

performance did not prejudice him. If Brooks’s trial counsel did not prejudice him,

then it necessarily followed that he suffered no prejudice to his direct appeal, since

he never could have succeeded in establishing trial counsel’s ineffectiveness. Since

the state court’s resolution of this claim hinged on whether Brooks suffered

prejudice at the penalty phase, the question we must answer under AEDPA’s

deferential standard is this: could a reasonable jurist conclude that there was not a

reasonable probability that the totality of Brooks’s mitigating evidence would have

altered the outcome of the penalty phase? The answer to this question is yes, and,

therefore, the Alabama Court of Criminal Appeals’s determination that he suffered

no prejudice was reasonable.




                                          20
             Case: 10-12073     Date Filed: 06/27/2013    Page: 21 of 30


      The totality of the new mitigating evidence Brooks presented in his Rule 32

proceeding consisted of the following. Regarding Brooks’s good character, six

witnesses testified to their impression that, as a child and as a young man, Brooks

was nice, polite, and nonviolent. Four of Brooks’s family members -- his mother,

his stepfather, his aunt, and his uncle -- said that, during Brooks’s childhood, he

had been nice, was a good athlete and a people person, and did not get into fights.

An ex-girlfriend’s parents also remembered Brooks as “very well mannered, . . .

mature, and very outgoing, a nice kid,” and said that he had treated their daughter

“very well” and was never violent. As for the evidence of alcoholism and

intoxication, Brooks presented an expert witness, Dr. Beidleman, who testified that

Brooks was a moderate alcoholic and that, in Beidleman’s opinion, Brooks had

been “acutely intoxicated” at the time of the murder.

      A reasonable jurist could conclude that evidence that Brooks had been a

nice, polite, and nonviolent person would not sway a jury from its recommendation

of death, especially in light of the aggravating circumstances in the case that

directly and powerfully contradicted any generic impression of Brooks’s good

nature. The trial court found two aggravating circumstances: first, the commission

of the murder occurred during the course of a rape, robbery, burglary, or

kidnapping; and, second, the crime was especially heinous, atrocious, or cruel

compared to other capital offenses. The evidence adduced in the guilt phase, and


                                          21
             Case: 10-12073      Date Filed: 06/27/2013   Page: 22 of 30


the jury’s verdict in finding Brooks guilty on all three counts of capital murder,

clearly established the first aggravating circumstance. See Brooks III, 929 So. 2d at

494.

       The state’s presentation of medical and blood spatter experts during the

penalty-phase proceeding established the second circumstance in gruesome detail.

The state admitted into evidence photographs of the victim’s injuries, which Dr.

Simmons, the medical examiner, explained at length. The evidence indicated that

the victim was killed by five to eight blows from a heavy object, which resulted in

broken bones or fractures to her skull, jawbone, and nose, internal bleeding in her

lungs, brain contusions, and neck injuries either from blunt force trauma or

strangulation, among other injuries. The hemorrhaging indicated that the victim

was alive during part of the attack, and, based on the swelling of the brain,

Simmons believed that the victim could have lived for anywhere from five minutes

up to several hours after the attack.

       In light of the extensive evidence regarding the horrific nature of this crime,

it was reasonable for the Alabama Court of Criminal Appeals to conclude that the

penalty-phase outcome would not be affected by Brooks’s acquaintances’ and

relatives’ impression of him as a nice and polite young man -- an impression that

the evidence of this murder squarely contradicted. Indeed, a reasonable jurist could

conclude that the horrific facts of the murder would have completely eviscerated


                                          22
             Case: 10-12073      Date Filed: 06/27/2013   Page: 23 of 30


the effect of Brooks’s character witnesses. In a similar case, Dill v. Allen, a

petitioner claimed that his trial counsel was ineffective in failing to present

character witnesses -- mostly family members -- who would have testified to his

nonviolent nature, his care for his family, and his good nature. See 

,

1360 (11th Cir. 2007). Yet, faced with evidence that merely showed “petitioner’s

good character and stability,” the panel in Dill could not find that the state court

unreasonably determined that Dill had not suffered prejudice. Id. at 1362. The

panel characterized his mitigating evidence as “weak” and was “unpersuaded by

his argument that such testimony would have surmounted the three aggravating

factors found by the trial court.” Id. at 1363 (footnote omitted).

      Indeed, this case is more clear-cut than Dill: had Brooks’s attorneys

introduced additional mitigating evidence, particularly in an attempt to establish

his good character, then the prosecution would have come forward with victim-

impact evidence that would have further added to the state’s already formidable

case. The effect of this additional aggravating evidence could have been damaging

to Brooks; at the very least, the state court reasonably could have so found. In

weighing the totality of the aggravating circumstances against the totality of the

mitigating circumstances, then, we recognize that Brooks’s good-character

evidence would not have been all-upside and no-downside. The presentation of

Brooks’s character witnesses would have resulted directly in the prosecution’s


                                          23
               Case: 10-12073         Date Filed: 06/27/2013       Page: 24 of 30


presentation of additional evidence weighing in favor of death. Given these

circumstances, it was even more reasonable for the Alabama Court of Criminal

Appeals to conclude that Brooks had suffered no prejudice from trial counsel’s

decision not to pursue the mitigation strategy he now believes would have been

best.2

         Nor would the evidence of alcoholism and Brooks’s intoxication on the

night of the offense necessarily have compelled a reasonable jurist to conclude that

the failure to present that evidence in mitigation prejudiced Brooks. As we’ve

already explained, Brooks faced a formidable obstacle in the two aggravating

factors presented by the state. To obtain relief now, he must demonstrate that being

nice and polite, while on the other hand suffering from alcoholism and being

intoxicated on the night of the offense, outweighs the brutal nature of the victim’s

death and the fact that he raped her and fled with many of her possessions.

         Yet Brooks’s best presentation of the alcoholism and intoxication evidence

was hardly compelling and, in fact, was called into substantial question by both the

2
  Brooks places great weight on the fact that both sides appear to have misunderstood the law on
victim-impact evidence, and that a “strategic decision is unreasonable if it is based on a failure to
understand the law.” Hardwick v. Crosby, 

, 1163 (11th Cir. 2003). It is true that
both the prosecutor and defense counsel seemed uncertain about the limits of Payne v.
Tennessee, 

 (1991), and whether victim-impact evidence was permissible only to
rebut mitigation evidence of the defendant’s good character. However, while the failure to
understand Payne may be relevant to Strickland’s performance prong, what matters for the
prejudice prong is the end result of that misunderstanding. And the result, in this case, was that
the prosecution actually withheld victim-impact evidence it could have presented during the
penalty phase, and which it would have presented had Brooks’s counsel offered all of the
additional mitigating evidence that is the subject of this appeal.
                                                 24
             Case: 10-12073     Date Filed: 06/27/2013    Page: 25 of 30


evidence at trial and the state’s rebuttal expert. The most that the jury and

sentencing judge could have gleaned from Dr. Beidleman’s testimony was that

Brooks was a moderate alcoholic, and that he was intoxicated on the night of the

murder. Moreover, Beidleman did not even testify that Brooks was so intoxicated

that he was entirely incapable of forming the necessary intent to render him

culpable. Rather, Beidleman opined that Brooks’s “ability to plan and think

rationally was profoundly impaired, if his alcohol intoxication and ingestion is

accurate as we’ve described. . . . [H]e would have [had] difficulty engaging in goal

directed behavior,” and would have exhibited “impulsivity, poor planning, poor

judgment, and poor cognitive organization, poor thinking skills.”

      In fact, there were strong reasons not to credit Beidleman’s account. For one

thing, he admitted on cross-examination that most of his information came from

Brooks himself or from people who received their information from Brooks. More

importantly, the extrinsic evidence presented during the guilt phase and during the

penalty phase directly contradicted Beidleman’s opinion that Brooks had been so

intoxicated that he could not engage in goal-directed behavior. In his interview

with Beidleman, Brooks admitted to having had sexual intercourse with the victim,

which the physical evidence confirmed. Furthermore, the evidence presented

during the guilt phase indicated that Brooks had the presence of mind to steal the

victim’s car, her credit card, personal checks, and a paycheck. See Brooks I, 695


                                          25
              Case: 10-12073      Date Filed: 06/27/2013    Page: 26 of 30


So. 2d at 179. Brooks also had taken several personal items from Campbell’s

apartment and pawned them, id., and a search of his apartment turned up

Campbell’s answering machine, the keys to her car, and receipts of purchases

made with her credit card, Brooks II, 

 at 187.

      In addition, had Brooks offered Beidleman as an expert witness, the state

would have rebutted that presentation with its own expert, Dr. King. King would

have given the jury further reason to doubt Beidleman’s depiction of Brooks. As

King recounted, the trial testimony had shown that the victim’s body had been

hidden underneath the bed, the bed had been made, and some of the blood at the

scene had been wiped down -- all of which indicated an effort to eliminate or

conceal evidence of the crime. When Brooks was arrested by the police, he gave a

twenty-two-page statement recounting the night of Campbell’s murder. These

circumstances led King to conclude that, “if [Brooks] were intoxicated at the time

of the offense, which I think is a possibility, it certainly did not rise to the level

where it impaired his memory to such an extent that he could not recall what took

place,” and that Brooks retained “the ability to form an intent” and engage in goal-

directed behavior. King’s testimony would also have added a new fact to the

weight of evidence in aggravation: the state had administered an intelligence test to

Brooks, which revealed that he was of average intelligence. As panels of this Court

have suggested before, a petitioner’s “average to above-average intelligence” could


                                            26
             Case: 10-12073     Date Filed: 06/27/2013   Page: 27 of 30


undercut the rest of his mitigation case. See Suggs v. McNeil, 

, 1231

(11th Cir. 2010); Grayson v. Thompson, 

, 1227 (11th Cir. 2001).

      Indeed, we have repeatedly stressed that evidence of intoxication or

alcoholism is a double-edged sword that itself could harm a petitioner’s case. See

Housel v. Head, 

, 1296 (11th Cir. 2001). A panel of this Court has

gone as far as saying that a “history of excessive alcohol and drug use” is not even

“evidence in mitigation of the death penalty,” and that “admission of some of this

evidence might have been harmful to [petitioner’s] case.” Waldrop v. Jones, 

, 1313 (11th Cir. 1996); see also Suggs, 609 F.3d at 1231 (“As we have

repeatedly recognized, evidence of drug and alcohol use is often a two-edged

sword that provides an independent basis for moral judgment by the jury.” (internal

quotation marks and citations omitted)). In this case in particular, the evidence of

alcoholism or intoxication might well have seemed inconsistent with trial counsel’s

penalty-phase argument, which focused on any residual doubt that the jury had

regarding Brooks’s guilt. While an intoxication-mitigation strategy attempts to

lessen the defendant’s culpability for an act he concededly committed, a residual-

doubt strategy depends on the defendant maintaining his innocence. See Hubbard v

Haley, 

, 1260-61 (11th Cir. 2003). That Brooks’s intoxication

evidence could have blunted the force of his residual-doubt argument is merely




                                          27
               Case: 10-12073         Date Filed: 06/27/2013       Page: 28 of 30


another way in which the new mitigating evidence could have hurt Brooks as

easily as it could have helped him.

       In contrast to this case, past petitioners who have overcome AEDPA

deference on a Strickland claim have made far more compelling showings that

their lawyers missed powerful mitigating evidence. In Porter v. McCollum, for

example, defense counsel failed to conduct a thorough investigation of the

petitioner’s background and did not uncover the following mitigation evidence:

Porter served heroically in two of the most critical and horrific battles of the

Korean War; he struggled to readjust to normal life upon returning from the

conflict; he suffered from physical abuse as a child; and he had a brain

abnormality, difficulty reading and writing, and limited schooling. 

, 41

(2009).3 The Supreme Court found the Florida Supreme Court’s finding that Porter

suffered no prejudice to be unreasonable; “the relevance of Porter’s extensive

combat experience [wa]s not only that he served honorably under extreme hardship

and gruesome conditions, but also that the jury might [have] f[ound] mitigating the

intense stress and mental and emotional toll that combat took on Porter.” Id. at 43-

44. In Wiggins, the petitioner showed that his trial counsel had missed evidence of

severe physical and sexual abuse that he suffered at the hands of his mother and
3
  Porter postdates the state-court decision in this case, and therefore could not in any event be the
basis to reverse the state court’s decision. See Williams, 529 U.S. at 412 (“clearly established
Federal law” under AEDPA consists of the holdings of the Supreme Court’s “decisions as of the
time of the relevant state-court decision”). We cite it merely to confirm the reasonableness of the
Alabama Court of Criminal Appeals’s application of Strickland in this case.
                                                 28
             Case: 10-12073      Date Filed: 06/27/2013    Page: 29 of 30


later his foster parents. See 539 U.S. at 516-17 (Wiggins’s mother left the children

home alone for days, forcing them to beg for food and to eat paint chips and

garbage; she beat the children and had sex with men while the children slept in the

same bed; in one incident, she forced Wiggins to touch a hot stove burner,

resulting in hospitalization; Wiggins’s foster father and siblings molested and

raped him). The Court found this mitigating evidence to be “powerful,” id. at 534,

and noted that it “contained little of the double edge we have found to justify

limited investigation in other cases,” id. at 535. Finally, in Collier v. Turpin, a case

that Brooks cites as a comparison, the petitioner presented much more substantial

evidence of good character, including evidence based on specific acts rather than

more generalized impressions. See 

, 1200 n.20 (11th Cir. 1999)

(Collier worked from an early age to support himself, his aunt, and his uncle; he

was in the army, then returned home to take care of his aunt while she was dying

of cancer; he was a devoted husband and father and worked hard to provide for his

family; shortly before committing his crime, he lost his job; Collier heroically

attempted to save the life of a motorist who had gotten into an accident).

      In sum, Brooks has not met his burden of showing that the balance of

aggravating and mitigating factors would lead all reasonable jurists to conclude

that he suffered prejudice during the penalty phase of his trial. On one side of the

balance, the state presented extensive aggravating evidence during the penalty


                                           29
             Case: 10-12073     Date Filed: 06/27/2013    Page: 30 of 30


phase of Brooks’s trial, and it would have presented both additional victim-impact

evidence and Dr. King’s testimony. On the other side of the balance, Brooks could

have presented six witnesses, who would have said that he was nice, polite, and

nonviolent as a young man; and Dr. Beidleman, who would have testified that

Brooks was a moderate alcoholic and was intoxicated on the night of the offense.

In light of the strength of the state’s aggravating evidence, a reasonable jurist could

conclude that there was no reasonable probability that Brooks’s best possible

mitigation presentation would have altered the outcome of his penalty phase

proceeding. It logically follows that a reasonable jurist could conclude that Brooks

suffered no prejudice during his direct appeal on account of direct appellate

counsel’s alleged failings in arguing this ineffectiveness-of-trial-counsel claim.

Consequently, we affirm the district court’s denial of habeas relief.



      AFFIRMED.




                                          30