Case: 12-15188   Date Filed: 01/08/2015   Page: 1 of 48


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No 12-15188
                       ________________________

                D.C. Docket No. 6:09-cv-00715-CEH-DAB



RICHARD E. LYNCH,

                                                            Petitioner-Appellee
                                                              Cross Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                       Respondents-Appellants
                                                             Cross Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (January 8, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

ED CARNES, Chief Judge:
              Case: 12-15188      Date Filed: 01/08/2015     Page: 2 of 48


      This is an appeal and cross-appeal from a judgment granting in part and

denying in part the federal habeas petition of Florida death row inmate Richard

Lynch. See 28 U.S.C. § 2254. He was sentenced to death in 2001 for the 1999

murder of thirty-year-old Roseanna Morgan and her thirteen-year-old daughter,

Leah Caday. The State of Florida’s appeal is from the part of the judgment

granting Lynch habeas relief based on his claim that he was denied the effective

assistance of counsel because his attorneys advised him, after he had entered a

guilty plea, to waive his right to a jury in the sentence stage of his capital trial.

Lynch cross-appeals the part of the judgment denying three of his other ineffective

assistance claims that he raised in his habeas petition.

                                            I.

      Lynch murdered Morgan and Caday on March 5, 1999, because he could not

accept Morgan’s decision to end their extramarital affair. See Lynch v. State, 

, 366 (Fla. 2003). The affair had lasted from August 1998 until

February 1999. 

was underway, although Lynch was unemployed and

relied on his wife for financial support, he obtained three credit cards that were

used to make more than $6,000 worth of purchases for Morgan. See Lynch v.

State, 

, 66 (Fla. 2008). She ended the affair on February 9, 1999 after

her husband returned from Saudi Arabia where he had been working as a military

contractor. See 

. While Morgan moved on, Lynch did


                                            2
              Case: 12-15188     Date Filed: 01/08/2015    Page: 3 of 48


not. He began stalking Morgan, hanging around her apartment complex, showing

up at her job, following her on her way home from work, and calling her

apartment. Morgan’s husband confronted Lynch several times and told him to

leave her alone, but it did no good. Lynch persisted.

      On March 3, 1999, about three weeks after Morgan had ended the affair,

Lynch wrote a letter to his wife declaring his intention to kill Morgan and then

himself. See 

368. In that letter he asked his wife to send Morgan’s

parents copies of the letters and cards Morgan had written to him, as well as nude

pictures of Morgan that he had taken. 

He wrote that “I want them to

have a sense of why it happened, some decent closure, a reason and understanding

. . . . I want them to know what she did, the pain she caused, that it was not just a

random act of violence.” 

(emphasis omitted). Lynch went

on in the letter about the debts that had been run up on the credit cards, his fear that

Morgan would not pay him back for any of the purchases, and the pain that she had

caused him by ending their affair. After describing in explicit and unnecessary

detail the various sexual acts he and Morgan had engaged in and how much he had

enjoyed them, on the last page of the letter Lynch apologized to his wife “for all

the pain, suffering, expense, embarrassment and hardship I will cause and give to

you,” but concluded that Morgan “must pay the price.” Lynch left the letter in his

garage.


                                           3
             Case: 12-15188     Date Filed: 01/08/2015   Page: 4 of 48


      Two days later, on March 5, he packed three pistols and ammunition into a

black bag and drove to Morgan’s apartment. See 

He parked his car

down the street and around the corner from the apartment complex so that Morgan

and her daughter Caday would not see it when they arrived at the complex. Id.;

n.3. Lynch grabbed the bag with the three pistols and

ammunition from the trunk of his car, walked to the complex, and picked an

inconspicuous spot to wait for Morgan to return. See 

.

      Caday got home first. See 

the thirteen-year-old into letting

him inside by telling her that he wanted to speak with her mother. See 

Once inside the apartment, he pulled one of the pistols from the black bag and held

Caday at gunpoint for thirty or forty minutes while waiting for Morgan to arrive.

See 

. All the while, the young girl was “terrified.” 

Lynch “why he was doing this to her.” 

finally returned home, Lynch met her at the door with a pistol

in his hand. See 

. Sensing what Lynch was going to do,

Morgan refused to come inside. They had a heated discussion, which ended when

Lynch fired seven shots. See 

70. Three of the shots hit Morgan in the

legs. See 

69–70. One hit her eye and tore through her neck. See 

She fell to the floor in the hallway outside her apartment, bleeding and

screaming for help. See 

, 371. Lynch walked outside the


                                         4
              Case: 12-15188     Date Filed: 01/08/2015   Page: 5 of 48


apartment into the hallway where Morgan lay, and the door closed behind him. He

dragged Morgan’s bleeding body by her wrist back to the door, where he knocked

and told Morgan’s daughter to “Hurry up, open the door, your mom is hurt.” 

When Caday opened the door, Lynch dragged her mother inside, closing the

door behind him. 

apartment, Lynch pulled a second pistol from his bag, and several

minutes after he had first shot Morgan he killed her in front of her daughter by

firing a single, execution-style shot to her head. See 

. He then called his wife at their home, 

, and told her

he was “sorry for what I’m going to do.” During that phone call, Lynch’s wife

could hear Caday screaming hysterically in the background. See 

After

Lynch hung up, he killed the young girl by shooting her in the back. See 

       Lynch then called his wife again. 

her that he had accidentally

shot Caday and told her that he had left a letter in the garage. See 

call ended, Mrs. Lynch dialed 911. She told the operator about Lynch’s phone

calls and asked for the police to investigate. She then began to look for the letter.

Her sister Juliette, whom Mrs. Lynch had paged after Lynch’s first phone call,

arrived at the home and joined in the search. Mrs. Lynch found the letter and

started to read it but was interrupted when her husband called a third time. Both


                                          5
              Case: 12-15188     Date Filed: 01/08/2015    Page: 6 of 48


she and Juliette talked to him, begging him not to kill himself. See 

was speaking with Lynch, Mrs. Lynch used her cell phone to call 911

again. She told the operator about the murder-suicide letter she had just found and

that Lynch was willing to turn himself in. After that 911 call ended and Lynch had

ended his call to Mrs. Lynch, she returned to reading the letter he had left. Before

she could finish reading it, several police officers arrived at her home. See 

. One officer, after confirming that she was Mrs. Lynch, asked her

for the letter. See 

not want to hand it over until she had finished

reading it, but the officer kept asking and she gave him the letter.

      While Mrs. Lynch was talking with the officers, Lynch himself called 911.

See 

. He talked with the 911 operator for the next thirty

or forty minutes. See 

–58. By the time that call began, two

officers were at Morgan’s apartment responding to the neighbors’ reports of shots

fired. The officers attempted to enter the apartment, but quickly retreated when

Lynch fired a shot at them. See 

. Eventually, the SWAT

team arrived, there were negotiations, and Lynch gave himself up. Before he did

that, Lynch told the 911 operator that he had killed two people, that he had shot

Morgan to “put her out of her misery,” and that he had fired at the two police

officers who tried to enter the apartment. 

12-15188   Date Filed: 01/08/2015   Page: 7 of 48


                                         II.

      A Florida grand jury issued a four-count indictment on March 23, 1999,

charging Lynch with: (1) first-degree premeditated murder of Roseanna Morgan;

(2) first-degree premeditated murder of Leah Caday; (3) armed burglary of a

dwelling; and (4) kidnapping. See 

There was a mountain of

evidence against Lynch, piled up stone by stone through the testimony of multiple

witnesses, the presentation of documents, undisputed circumstances, and Lynch’s

own words. It was conclusively proven that: Lynch had barricaded himself inside

Morgan’s apartment, had fired from it at police officers, and when he emerged had

left inside two dead bodies, one of which was riddled with five bullets. The

prosecution also presented: the murder-suicide letter Lynch had written two days

before the murders, the testimony of the neighbor across the hall who saw Lynch

drag Morgan inside the apartment after she had been shot several times, the

testimony of a second neighbor who described the five to seven minute pause

between the two groups of gunshots, the testimony of Mrs. Lynch about his three

phone calls to her, the recording of his own lengthy 911 call, the testimony of the

police negotiator who talked Lynch out of the apartment, and a videotape of

Lynch’s post-arrest interview confessing to the killings. See 

–67, 371.




                                          7
              Case: 12-15188     Date Filed: 01/08/2015    Page: 8 of 48


      Together, the evidence showed that: (1) two days before the murder Lynch

wrote about his intent to kill Morgan; (2) he packed a bag with three loaded pistols

and took them to her apartment; (3) he intentionally parked away from the

apartment complex so that neither victim would see his vehicle and know he was

there; (4) he held the thirteen-year-old Caday in the apartment at gunpoint for

thirty or forty minutes while waiting for Morgan to return home; (5) he shot at

Morgan a total of eight times, hitting her five times; (6) Morgan was still breathing

when he switched to a different pistol and fired the final shot into the back of her

head; (7) he said that he had fired that last shot to “put her out of her misery,” but

he had not done it until five to seven minutes after the first of the five shots he had

fired into her; and (8) Caday watched her mother suffer from the other gunshot

wounds for those five to seven minutes before he killed both of them. Lynch, 

at 53, 59, 66, 69–70; 

, 368–69. The only evidence in

Lynch’s favor, if it can be called that, was a few self-serving statements —

sprinkled among his numerous incriminating admissions — in which he claimed

that the initial shots he fired at Morgan through the doorway and the single shot

fired into Caday had been accidental. See, e.g., Lynch, 

at 66. He never

explained how the first pistol had accidentally discharged, not once, not twice, not

three or four times, but seven times. See 

.




                                           8
             Case: 12-15188     Date Filed: 01/08/2015   Page: 9 of 48


      Lynch’s two trial attorneys, who had more than twenty-five years of capital

case experience between them, understandably concluded that it would be

impossible to persuade a jury that Lynch had accidentally killed Morgan. See

–58. They believed from their experience that juries tended

to be quite unsympathetic in the sentence stage to defendants who had murdered

children. See 

71. They also knew that the trial judge — Judge O.H.

Eaton, Jr. — was a seasoned jurist and a recognized authority on Florida’s death

penalty procedure, which they believed would make him more receptive to their

mitigation arguments. See 

82. For those reasons Lynch’s two

experienced trial counsel advised him to plead guilty to all four counts and waive

his right to a sentence-stage jury. He did so in October 2000. See 

70–71;

.

                                        III.

      At the sentence hearing, which was held in January 2001, the defense built

its mitigation case on the testimony of forensic neuropsychologist Dr. Jacquelyn

Olander. See 

; Lynch, 

at 72. She testified that

Lynch had a schizoaffective disorder, which was a combination of schizophrenia

and a mood disorder. See 

. She concluded that he was

“under the influence of an extreme mental and emotional disturbance” when he




                                         9
             Case: 12-15188     Date Filed: 01/08/2015    Page: 10 of 48


committed the murders “and that his psychotic process substantially impaired his

capacity to conform his conduct with the requirements of the law.” 

called its own expert, psychologist Dr. William Riebsame. See 

He agreed with Dr. Olander that Lynch had mental health issues but

disagreed about their severity. See 

Riebsame’s opinion, Lynch’s lack of

delusions and his ability to recall the facts of the crime were inconsistent with a

schizoaffective disorder. 

that while Lynch was “emotionally

disturbed” he had not been acting under a severe mental or emotional disturbance

during the crimes, and his ability to conform his conduct to the requirements of the

law “was impaired, but not substantially impaired.” 

court considered all of the expert testimony, along with the

evidence establishing Lynch’s conduct before, during, and after the murders. See

After having the matter under submission for two months, the court

issued a written order sentencing Lynch to death for each murder. The order

specified three statutory aggravating factors that supported imposing the death

penalty for each of the two murders. See 

court rested the death sentence for Morgan’s murder in large part

on the fact that Lynch had planned days in advance to kill Morgan and then had

methodically carried out his plan. It placed “great weight” on the statutory

aggravating circumstance that “the murder was cold, calculated, and


                                          10
               Case: 12-15188        Date Filed: 01/08/2015       Page: 11 of 48


premeditated.” 

Stat. § 921.141(5)(i)). The court put “moderate

weight” on the aggravating circumstance that Lynch “had previously been

convicted of a violent felony.” 

Stat. § 921.141(5)(b)). It

reasoned that the previously-convicted-of-a-violent-felony factor applied because

the murder involved multiple victims 1 but decided that factor should receive only

moderate weight because Morgan was the first victim killed. The court also found

the aggravating circumstance that Lynch had committed the murder “while . . .

engaged in committing one or more other felonies.” 

Stat.

§ 921.141(5)(d)). It reasoned that the circumstance applied because Lynch had

killed Morgan in the course of committing armed burglary, 2 but it concluded that

the factor should be given little weight since the armed burglary was part of

Lynch’s premeditated plan and thus already covered by the “cold, calculated, and

premeditated” aggravating circumstance.

       On the other side of the scale, the trial court found that the only statutory

mitigating factor that applied was the one for “no significant history of prior

criminal activity,” and that it should receive only “moderate weight.” 

&

   1
     In Florida, “a contemporaneous conviction of a violent felony may support the aggravating
factor of prior conviction for a violent felony so long as the two crimes involved multiple victims
or separate episodes.” Stein v. State, 

, 1366 (Fla. 1994). As a result, the
murders of Morgan and Caday each served as an aggravating factor for the other.
   2
      The Florida Supreme Court’s opinion explains in detail why, under Florida law, Lynch
committed burglary when he reentered the apartment after shooting Morgan. See Lynch, 

at 60–62.


                                               11
                Case: 12-15188        Date Filed: 01/08/2015       Page: 12 of 48


n.5. Lynch contended that two more statutory mitigating factors should apply —

that he had committed the murders while “under the influence of extreme mental or

emotional disturbance” and that his capacity “to conform his . . . conduct to the

requirements of law was substantially impaired.” See Fla. Stat. § 921.141(6)(b),

(f). The court determined, however, that the circumstances on which Lynch based

those contentions were entitled to only “moderate weight” as non-statutory

mitigating circumstances because Lynch had not proven that his disturbance or

impairment was great enough to meet the statutory mitigating circumstances

definitions. See 

–75. The court also found six other non-

statutory mitigating circumstances for a total of eight. 3

         Concluding that the three aggravating factors outweighed the one statutory

mitigating factor and the eight non-statutory mitigating factors, the court sentenced

Lynch to death for the murder of Morgan. See 

& n.5.


   3
       Those non-statutory mitigating factors were:

         (1) the crime was committed while defendant was under the influence of a mental
         or emotional disturbance (moderate weight); (2) the defendant’s capacity to
         conform his conduct to the requirements of law was impaired (moderate weight);
         (3) the defendant suffered from a mental illness at the time of the offense (little
         weight); (4) the defendant was emotionally and physically abused as a child (little
         weight); (5) the defendant had a history of alcohol abuse (little weight); (6) the
         defendant had adjusted well to incarceration (little weight); (7) the defendant
         cooperated with police (moderate weight); (8) the defendant’s expression of
         remorse, the fact that he has been a good father to his children, and his intent to
         maintain his relationship with his children (little weight).

n.5.


                                                12
               Case: 12-15188      Date Filed: 01/08/2015       Page: 13 of 48


       For Caday’s murder, the trial court’s determination that a death sentence was

warranted centered on the terror that Caday had experienced before she died. The

court placed “great weight” on the fact “that the murder was heinous, atrocious, or

cruel.” 

(applying Fla. Stat. § 921.141(5)(h)). It reasoned that the fear

and emotional strain Caday had suffered from the time Lynch talked her into

letting him into the apartment until he shot her to death made her murder heinous.

It noted that Lynch had held the terrified young girl at gunpoint for thirty or forty

minutes before her mother arrived and then shot her mother dead in front of her.

Caday was screaming hysterically during Lynch’s first phone call to his wife.

       The court found that Lynch had been “previously convicted of a violent

felony,” 

Stat. § 921.141(5)(b)), and it placed “great weight” on

that aggravating circumstance because Caday was the second victim killed in a

multiple murder. The court also found the aggravating circumstance that Lynch

had killed Caday while he “was engaged in committing one or more other

felonies,” 

Stat. § 921.141(5)(d)), because Caday was a minor.4

But it decided that the factor should receive only moderate weight because Caday’s

“killing was an afterthought” and would have been second-degree murder but for

the felony murder rule.
   4
     The sentencing court explained that: “The [Florida] legislature has made the killing of any
child her age first degree murder.” See State v. Sturdivant, 

, 442 (Fla. 2012)
(holding that, under Florida’s felony-murder statute, “a felony-murder conviction [can be]
predicated upon a single act of aggravated child abuse that caused the child’s death”).


                                              13
             Case: 12-15188     Date Filed: 01/08/2015   Page: 14 of 48


      The court found the same statutory and non-statutory mitigating

circumstances it had in sentencing Lynch for the murder of Morgan, and concluded

that the three aggravating circumstances outweighed that single statutory

mitigating factor and the same eight non-statutory mitigating factors, justifying a

sentence of death for Caday’s murder. See 

& n.5.

                                         IV.

      On direct appeal, the Florida Supreme Court rejected all of Lynch’s many

challenges to his convictions and sentences. See 

That happened in

2003. Lynch then filed a motion for post-conviction relief raising a new set of

issues. See Lynch, 

at 54–55. Many of those issues turned on the fact that

his trial counsel had not obtained expert testimony showing that Lynch had a brain

impairment. See 

The evidence that Lynch presented at the state post-

conviction hearing included testimony: from his trial counsel explaining their

representation of Lynch, from the two mental health experts who examined Lynch

before the sentence hearing, and from three new mental health experts who had

examined Lynch since the trial for signs of brain damage. See 

The

state post-conviction court denied Lynch’s petition in October 2006, and the

Florida Supreme Court affirmed that denial in November 2008. See 

86.




                                         14
             Case: 12-15188     Date Filed: 01/08/2015    Page: 15 of 48


      In April 2009 Lynch filed a petition for a writ of habeas corpus under 28

U.S.C. § 2254. In September 2012 the district court issued an order granting the

petition as to the death sentence based on the claim that Lynch had been denied

effective assistance of counsel when his attorneys advised him to waive a sentence-

stage jury. Lynch v. Sec’y, Dep’t of Corr., 

, 1306–09, 1351

(M.D. Fla. 2012). The State appealed the grant, while Lynch sought a certificate of

appealability for a cross-appeal of the denial of four additional claims. We granted

him a certificate on three ineffective assistance of counsel claims involving his

assertions that defense counsel had: (1) unreasonably advised Lynch to plead

guilty to all four counts in the indictment; (2) failed to file a Fourth Amendment

suppression motion to exclude his murder-suicide letter at the sentence stage; and

(3) failed to conduct a reasonable mitigation investigation and present available

mitigating circumstance evidence at the sentence stage.

                                         V.

      “When reviewing a district court’s grant or denial of habeas relief, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Reaves v. Sec’y, Fla. Dep’t of Corr., 

, 899

(11th Cir. 2013) (quotation marks omitted).

      The Florida Supreme Court denied on the merits all four of the claims that

we are considering, so we review its decision under the standards set by AEDPA.


                                         15
             Case: 12-15188     Date Filed: 01/08/2015    Page: 16 of 48


See Holsey v. Warden, Ga. Diagnostic Prison, 

, 1257 (11th Cir.

2012). Those standards preclude federal habeas relief unless the state court’s

decision was (1) “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or (2) . . . 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). That

leaves Lynch with a difficult task. He must show that “no ‘fairminded jurist’ could

agree” with the state court’s decision on an issue of federal law or on an issue of

fact. 

(citing Harrington v. Richter, 

, 131 S.

Ct. 770, 786 (2011)).

      Because the three issues raised in Lynch’s cross-appeal precede — either

chronologically or logically — the issue raised in the State’s direct appeal, we

address those three claims first. After that we will address the State’s challenge to

the part of the district court’s judgment granting Lynch relief.

                                         VI.

      Lynch’s cross-appeal raises three ineffective assistance claims. The first

claim faults defense counsel for advising him to plead guilty. The second criticizes

defense counsel for failing to file a Fourth Amendment suppression motion to

exclude his murder-suicide letter. And the third claim castigates defense counsel




                                          16
              Case: 12-15188    Date Filed: 01/08/2015   Page: 17 of 48


for not procuring and presenting at the sentence stage expert testimony that Lynch

suffers from a brain impairment.

                           A.      Advice to Plead Guilty

      Lynch contends that he received ineffective assistance of counsel when his

trial attorneys advised him to plead guilty to all four counts in the indictment. He

argues that the advice to plead guilty was deficient because he had potential

defenses to the charges of first-degree murder, burglary, and kidnapping. To

succeed on this claim, Lynch must prove that: (1) counsel’s advice was deficient;

and (2) “but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 

, 58–59, 

,

370 (1985).

      The Florida Supreme Court held that Lynch failed to satisfy either prong of

Hill. It concluded that counsel’s advice to plead guilty and “concentrate on

presenting compelling mitigation evidence” was a “reasonable strategic

determination” given the “overwhelming evidence” of Lynch’s guilt on all four

charges. 

. The court then addressed the prejudice question.

The defenses that Lynch claimed his counsel failed to inform him about were not

affirmative defenses but instead were all based on the absence of an element of the

crime. He faulted counsel for not telling him that: (1) lack of intent was a defense

to first-degree murder, (2) entry with consent was a defense to burglary, and


                                         17
                Case: 12-15188      Date Filed: 01/08/2015      Page: 18 of 48


(3) kidnapping requires the confinement of the victim to be both significant and not

incidental to another crime. See 

The Florida Supreme Court

concluded that Lynch was not prejudiced by counsel’s alleged failings because the

evidence clearly established all of the elements of all three offenses. See 

63.

          The district court held that the Florida Supreme Court’s application of Hill

was reasonable, in part, because Lynch had not established prejudice. 

–33. We agree.5 The evidence of Lynch’s guilt, which we

have already recounted, was overwhelming. 

Part II. And the Florida

Supreme Court’s thorough assessment of the evidence and the facts it established

convinces us that Lynch had no viable innocence defense at trial. See Lynch, 

at 59–63. He was not prejudiced by his attorneys’ alleged failure to inform him

of possible defenses, and his claim to the contrary completely lacks merit.

          Lynch does not challenge the Florida Supreme Court’s explanation about

why he had no viable defenses to the charges. Instead, he asserts that the court

unreasonably applied Hill by focusing on whether Lynch’s defenses likely would

have prevailed at trial. That is, however, what Hill instructs courts to do in


      5
      Because we conclude that the Florida Supreme Court’s prejudice determination was
reasonable, we need not consider its assessment of trial counsel’s performance. See Strickland v.
Washington, 

, 697, 

, 2069 (1984) (“[A] court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.”).


                                               18
               Case: 12-15188       Date Filed: 01/08/2015       Page: 19 of 48


determining whether the defendant would have insisted on going to trial. 

, 106 S. Ct. at 371 (“[W]here the alleged error of counsel is a failure to

advise the defendant of a potential affirmative defense to the crime charged, the

resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative

defense likely would have succeeded at trial.”).6 The Florida Supreme Court did

not unreasonably apply Hill. 7

       Lynch also claims that counsel were ineffective for advising him to enter “a

blind guilty plea,” which is one entered without any benefit in return from the

prosecution. In support of this claim, he cites our decision in Esslinger v. Davis,

(11th Cir. 1995). But Esslinger expressly disclaims the broad

proposition for which Lynch cites it. See 

(“We do not hold that an

attorney who recommends a blind plea inherently fails to perform as required by

the Sixth Amendment.”) (emphasis added). In that case, counsel had failed to


   6
      It makes no difference whether or not the defenses to which Lynch points are, like those in
Hill, affirmative defenses. Hill makes clear that the prejudice inquiry in a case like this turns
largely on an assessment of whether the defense likely would have changed the outcome at trial.

–60; 106 S. Ct. at 370–71.
   7
      Lynch argues that the Florida Supreme Court should have considered two other factors in
assessing prejudice. First, he argues that he never completed high school, and claims that he was
severely mentally ill, brain damaged, and had no prior experience with the judicial system. None
of those personal characteristics would have affected the probability that Lynch could have
negated one of the essential elements of the charges he faced. See 

, 106 S.
Ct. at 371. Next, Lynch cites the post-conviction hearing testimony of his lead trial counsel that
having evidence of Lynch’s brain damage “may have” impacted his advice that Lynch plead
guilty. But that does not speak to the central question, which is whether the three asserted
defenses (that trial counsel failed to advise Lynch about) would have succeeded at trial. See 

12-15188        Date Filed: 01/08/2015        Page: 20 of 48


adequately research the defendant’s prior criminal history before advising him to

plead guilty to first-degree rape. See 

As a result, the defendant

pleaded guilty because he believed that he would get a ten-year sentence, only to

discover at the sentence hearing that his prior convictions triggered a statutorily

mandated minimum sentence of ninety-nine years. 

We held that

Esslinger was denied the effective assistance of counsel because the evidence

established a reasonable probability that he would not have pleaded guilty to first-

degree rape if his counsel had advised him that doing so would result in a

minimum ninety-nine-year sentence. See 

Lynch has not

established such a probability here, and thus his claim fails.

        B.      Not Filing a Motion to Suppress the Murder-Suicide Letter

       Lynch also contends that his trial counsel were ineffective for failing to file a

motion to suppress the murder-suicide letter on Fourth Amendment grounds and

prevent it from being used at the sentence stage.8 He argues that counsel should

have challenged the police’s entry into the Lynches’ home as an unreasonable

search. The Florida Supreme Court denied the claim. See 

.

It determined that Mrs. Lynch’s sworn deposition testimony established that:

   8
      Normally, prisoners cannot raise Fourth Amendment issues in a § 2254 petition. See Stone
v. Powell, 

, 494, 

, 3052 (1976). The Supreme Court has held,
however, that federal habeas relief is available to state prisoners if their trial counsel’s failure to
file a Fourth Amendment suppression motion deprived them of their Sixth Amendment right to
the effective assistance of counsel. See Kimmelman v. Morrison, 

, 382–83, 106 S.
Ct. 2574, 2587 (1986).


                                                 20
              Case: 12-15188       Date Filed: 01/08/2015      Page: 21 of 48


(1) the police officers had consent to enter the Lynches’ home, (2) the officers

already knew about the murder-suicide letter because Mrs. Lynch had told the 911

operator about it, and (3) she was reading the letter in front of the officers when

they asked her for it. 

concluded that those facts showed that the

officers were lawfully present in the home when they saw the letter and had

probable cause to believe it was evidence of a crime — so the seizure was lawful

under the plain view doctrine. See 

all ineffective assistance claims, Lynch has the burden of showing

that his counsel’s performance (or non-performance) was both deficient and

prejudicial. See Green v. Nelson, 

, 1251 (11th Cir. 2010). To

establish prejudice based on his attorneys’ failure to seek suppression, Lynch has

the more specific burden of demonstrating “that (1) the underlying Fourth

Amendment issue has merit and (2) there is a ‘reasonable probability that the

verdict would have been different absent the excludable evidence.’” 

52 (quoting Kimmelman v. Morrison, 

, 375, 

, 2583

(1986)). Because it is dispositive, we will focus on the question of whether the

underlying Fourth Amendment issue has merit. 9


   9
     We note that Florida law provides for the exclusion of evidence from a sentence hearing in
a capital case if it was acquired through an unconstitutional search or seizure. See Fla. Stat.
§ 921.141(1); Harich v. State, 

, 1085–86 (Fla. 1983). Therefore, we do not have
to decide whether defendants have a right under the federal Constitution to exclude unlawfully
obtained evidence from the sentence stage of a capital trial.


                                              21
             Case: 12-15188     Date Filed: 01/08/2015   Page: 22 of 48


      Lynch has not established the merits of his claim that the officers’ entry into

the Lynches’ home was an unconstitutional search. Police may search a home

without a warrant if they “obtain the voluntary consent of an occupant who shares,

or is reasonably believed to share, authority over the area.” Georgia v. Randolph,

, 106, 

, 1518 (2006). The Florida Supreme Court

determined that the officers had consent to enter the Lynches’ home, see 

, and that determination is not objectively unreasonable, see 28 U.S.C.

§ 2254(d)(2). As the district court pointed out, Mrs. Lynch’s deposition “does not

explicitly state whether she invited the police into her home,” but it supports a

finding that she did. 

. Mrs. Lynch testified that she

called 911, told them that her husband claimed to have killed someone, and asked

them to investigate. 

explained that, when the officer asked her for the

letter, she “thought he was there to investigate or something.” At the state post-

conviction hearing, lead trial counsel testified that “my understanding [was] the

search of the home occurred first while they’re still on the phone with him, or

shortly thereafter, and the wife is home and she gives them permission to enter.”

Together, those statements support the Florida Supreme Court’s factual

determination that the police got Mrs. Lynch’s consent before entering the home.

Lynch does not point to anything in the record that shows that determination was




                                         22
             Case: 12-15188     Date Filed: 01/08/2015    Page: 23 of 48


objectively unreasonable, which is his burden as a habeas petitioner. See 

. His failure to do so is fatal to his claim.

               C.     Investigation of Brain Impairment Evidence

       Lynch also claims that his trial attorneys were ineffective for not discovering

and presenting evidence that he suffers from a brain impairment, and if they had,

there is a reasonable probability that he would not have been sentenced to death.

To better understand this issue, we first explain in detail the expert opinion

evidence that trial counsel discovered, that which they presented at the sentence

stage, and the additional expert opinion evidence that collateral counsel discovered

and presented in Lynch’s state post-conviction proceedings.

  1.     Counsel’s Investigation, the Expert Testimony at the Sentence Stage,
           and the Testimony at the State Post-Conviction Hearing
       The first expert Lynch’s attorneys hired in preparation for the sentence

hearing was Dr. David Cox, a clinical neuropsychologist. See Lynch, 

at

74. After examining Lynch, he diagnosed him with cognitive disorder NOS (not

otherwise specified) and a possible paranoid personality disorder. 

report also noted that Lynch might have a “cerebral dysfunction” and

recommended neuropsychological testing to determine if he did. See 

were not satisfied with Dr. Cox’s report, so they brought in Dr.

Olander, a forensic neuropsychologist, to evaluate Lynch. 

told Dr.

Olander that Dr. Cox had already evaluated Lynch, they did not tell her that his


                                          23
             Case: 12-15188     Date Filed: 01/08/2015   Page: 24 of 48


“cognitive testing suggest[ed] possible cerebral dysfunction in the form of

significant right hemisphere weakness.” See 

they mention that Dr.

Cox had recommended neuropsychological testing “to determine if there is further

deficiency not detected by the intelligence and memory screening testing already

conducted.” See 

her personal respect for Dr. Cox and her belief that trial counsel

would have informed her if Dr. Cox had found any signs of impairment, Dr.

Olander assumed that he had already ruled out cognitive impairment. 

result, she did not perform any neuropsychological testing, but limited her

evaluation to psychological testing and diagnosed Lynch with a schizoaffective

disorder. 

testified at the sentence hearing “that Lynch did not

have any brain impairment.” 

collateral counsel, Lynch presented evidence at his state post-

conviction hearing that he had a brain impairment. Five mental health experts

testified for Lynch at that hearing. Dr. Cox testified that Lynch “had a dysfunction

of thinking skills, ‘quite likely due to a brain damage situation.’” Lynch, 897 F.

Supp. 2d at 1300.

      Dr. Olander testified at the hearing that she had not tested Lynch for brain

damage before the sentence stage of his trial based partly on her assumption that

his trial counsel would have informed her if Dr. Cox had recommended doing that.


                                         24
              Case: 12-15188     Date Filed: 01/08/2015     Page: 25 of 48

explained that if she had known Lynch had brain damage it would

have changed her testimony at the sentence hearing. She would have instead

testified that brain damage “would have had a significant impact on [Lynch’s] self

control and would have added weight to the emotional state [he] was experiencing

at the time of the murders.” 

McCraney, a neurologist, testified at the state post-conviction

hearing that Lynch “had frontal lobe and right hemisphere brain damage and

suffered from psychosis.” 

that Lynch had likely suffered from those

conditions his entire life, but that certain “stressors” — such as the credit card debt

and his failing marriage — could have undermined Lynch’s “ability to compensate

for his cognitive impairment.” 

called Lynch’s combination of

brain impairment and emotional stressors “the perfect storm.” 

n.4.

      Dr. Joseph Wu, a psychiatrist, testified at the state post-conviction hearing

that after analyzing PET scans of Lynch’s brain he had identified “an abnormality

in the distribution of activity in the frontal lobe of the brain relative to the back of

the brain.” 

Finally, Dr. Joseph Sesta, a neuropsychologist, testified

that Lynch “suffered from mild brain impairment and possible psychosis.” 

the testing that the State’s mental health expert, Dr. Riebsame, did before

the sentence hearing for failing to follow proper testing protocol. See 

Dr. Sesta concluded that Lynch’s ability to conform his conduct to the law was


                                           25
              Case: 12-15188      Date Filed: 01/08/2015      Page: 26 of 48


substantially impaired, but he did not offer an opinion about whether Lynch

suffered from an extreme emotional disturbance. See 

        The State countered Lynch’s new expert testimony at the state post-

conviction hearing with two witnesses of its own: Dr. Riebsame and psychiatrist

Dr. Jeffrey Danziger. Testifying to the same findings and opinion he had at the

sentence hearing, Dr. Riebsame explained that he did not find any signs of

psychotic or delusional thinking when he listened to the tape of Lynch’s 911 call,

or when he viewed the videotape of Lynch’s post-arrest interview, or when he

interviewed Lynch. Dr. Riebsame concluded that Lynch understood the

criminality of his actions and that his “ability to conform his conduct to the law

was not substantially impaired.” 

        Dr. Danziger testified at the state post-conviction hearing that the planning

and control Lynch had demonstrated in carrying out the murders and then deciding

to back out of his suicide plan showed that he was able to control his impulses. 

also concluded that “even if [Lynch] had a mild cognitive

impairment, such an impairment would not have affected his behavior at the time




   10
      Because the experts Lynch presented at the state post-conviction hearing had different
diagnoses — psychoaffective disorder, right hemisphere brain damage and psychosis, mild brain
impairment and possible psychosis — and Lynch does not focus on any particular one of them
when making his argument under the prejudice prong, we will use “brain impairment” as an
umbrella term covering all of them.


                                             26
               Case: 12-15188   Date Filed: 01/08/2015   Page: 27 of 48


of the murders,” and that his ability to conform his conduct to the law was not

substantially impaired when he committed the murders. 

Challenge Based on Counsel’s Investigation

      Lynch contends that the district court erred in denying his ineffective

assistance claim based on trial counsel’s failure to obtain and present expert

evidence that he suffers from a brain impairment. To succeed on this claim, Lynch

must show that his counsel’s failure to do so was (1) objectively unreasonable

under the circumstances and (2) prejudicial to his defense. Strickland v.

Washington, 

, 687–88, 

, 2064 (1984). We begin by

discussing the state court’s decision and explaining why it deserves deference

under 28 U.S.C. § 2254.

                                       a.

      The Florida Supreme Court denied this ineffective assistance claim on

prejudice grounds. After deciding that the investigation into mitigating

circumstances was deficient because trial counsel knew from Dr. Cox’s report that

“Lynch suffered from some type of cognitive impairment,” yet they “never fully

investigated this condition,” the Florida Supreme Court concluded that trial

counsel’s failure did not prejudice Lynch because the statutory aggravating factors

still far outweighed the mitigating factors. Lynch, 

at 75–77. It found the

testimony of the State’s witness, Dr. Danziger, to be “the most persuasive” of all


                                            27
             Case: 12-15188      Date Filed: 01/08/2015    Page: 28 of 48


the expert testimony offered in the post-conviction proceeding because it was

grounded in the facts of the murder and explained how those facts showed

“planning, forethought, [and] organization, not impulsive action.” 

At

the end of its four-page discussion of Lynch’s new mental health evidence, the

Florida Supreme Court concluded:

       Lynch has simply failed to present any evidence connecting any
       cognitive condition to his behavior. Even if we fully accepted the
       testimony of his postconviction mental-health experts, there has been
       little to no testimony establishing that any impairment or
       schizoaffective symptoms contributed to his actions on March 5,
       1999. Lynch had no prior history of criminal activity but by all
       defense accounts has always had this condition. Furthermore, he
       thoroughly planned and carried out his memorialized intent to murder
       Roseanna Morgan and then demonstrated critical impulse control by
       refusing to commit suicide. Cf., e.g., Hoskins v. State, 

,
       17–18 (Fla. 2007) (affirming death sentence and stating, “the facts
       show an element of planning [and] are inconsistent with a claim that
       [the defendant] was under the influence of an extreme mental or
       emotional disturbance . . . . [Further,] there was no evidence that
       because of the frontal lobe impairment [the defendant] could not
       appreciate the criminality of his conduct at the time of the murder.”);
       Robinson v. State, 

, 277–79 (Fla. 1999) (affirming
       death sentence despite evidence of mild brain damage where no
       evidence existed that the defendant committed the murder as a result
       of his condition).

       Although it ultimately concluded that Lynch had failed to establish the

prejudice element of his ineffective assistance claim, the district court first

determined that the Florida Supreme Court’s decision that there was no prejudice

was not entitled to § 2254(d) deference. See 

. It


                                          28
             Case: 12-15188     Date Filed: 01/08/2015    Page: 29 of 48


did so based entirely on its conclusion that the first sentence in the paragraph

quoted above — the “failed to present any evidence” sentence — was an

objectively unreasonable factual determination. See id.; see also 28 U.S.C.

§ 2254(d)(2). The district court deemed that factual determination unreasonable

because of testimony from Drs. Olander, McCraney, and Sesta, which the court

believed did link the type of brain impairment those experts found in Lynch to an

inability to conform his behavior to the law. See 

.

      Although it reached the right result anyway, the district court erred in getting

there. It erred by not giving the Florida Supreme Court’s decision on the prejudice

element the deference that § 2254(d) requires. The “failed to present any

evidence” sentence in the state court’s opinion comes at the beginning of a

paragraph that explains it, and it comes at the end of four pages of analysis of the

new mental health evidence. See Lynch, 

at 73–77. Lifting that one

sentence off the page and interpreting it in isolation is inconsistent with the

approach required by § 2254(d), one that imposes a “highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given

the benefit of the doubt.” Woodford v. Visciotti, 

, 24, 

,

360 (2002) (citation and quotation marks omitted). We have repeatedly cautioned

against “overemphasis on the language of a state court’s rationale” which “would

lead to a ‘grading papers’ approach that is outmoded in the post-AEDPA era.”


                                          29
             Case: 12-15188     Date Filed: 01/08/2015    Page: 30 of 48


Ferguson v. Sec’y, Fla. Dep’t of Corr., 

, 1337 (11th Cir. 2013)

(quoting Parker v. Sec’y for Dep’t of Corr., 

, 785 (11th Cir. 2003)).

The district court took the “grading papers” approach by red-inking the language in

that one sentence without considering its context in the Florida Supreme Court’s

four-page discussion of Lynch’s new mental health evidence. See Lynch, 897 F.

Supp. 2d at 1303 (interpreting Lynch, 

at 73–77).

      When we read that one sentence in the context of the entire paragraph and as

part of the larger four-page discussion, giving the state court the benefit of the

doubt that AEDPA requires, we conclude that what the court actually found was

that Lynch’s experts’ generalized testimony (that his brain impairment rendered

him unable to control his impulses) could not be squared with the facts of the case.

In the three sentences following the one in question, the Florida Supreme Court

explained what it meant. It said that there was “little to no testimony establishing

that any impairment or schizoaffective symptoms contributed to [Lynch’s] actions

on [the day of the murders].” Lynch, 

at 77. There was little or no

evidence of a link because: “Lynch had no prior history of criminal activity but by

all defense accounts has always had this condition. Furthermore, he thoroughly

planned and carried out his memorialized intent to murder Roseanna Morgan and

then demonstrated critical impulse control by refusing to commit suicide.” 

Supreme Court cited one of its decisions for the proposition that facts


                                          30
             Case: 12-15188      Date Filed: 01/08/2015    Page: 31 of 48


showing “an element of planning . . . are inconsistent with” claims that the

defendant was acting under “an extreme mental or emotional disturbance” during

the murder. 

965 So. 2d at 17–18).

      And that is not all. There are other indications in the state court opinion of

what the sentence in question means. First, the paragraph introducing the four-

page analysis of the new mental health evidence frames the discussion that follows

with this assessment: “Lynch has not connected any cognitive impairment to the

events of [the day of the murder], which, in contrast, reveal a carefully crafted

murder plot.” 

In other words, Lynch did not produce evidence

explaining how, given the circumstances of the crime and the facts surrounding it,

his “carefully crafted murder plot” could be the result of psychosis, brain damage,

or any of the other mental problems his experts said he had.

      Not only that, but in reviewing the new mental health evidence, the Florida

Supreme Court specifically noted the expert testimony that the district court

thought it had failed to note. The district court justified its conclusion that the

Florida Supreme Court’s factual determination was objectively unreasonable by

citing statements from the testimony of Drs. Olander, McCraney, and Sesta. See

(citing testimony from those three doctors as proof

that the Florida Supreme Court made an unreasonable factual determination). The

district court’s point was that the Florida Supreme Court must have overlooked


                                           31
              Case: 12-15188       Date Filed: 01/08/2015      Page: 32 of 48


those cited statements from the experts’ testimony, all of which supported

mitigating circumstances. See 

overlooking them, the Florida

Supreme Court explicitly acknowledged those very statements in its review of the

evidence. It stated that:

        Drs. Cox, Olander, McCraney, and Sesta (Dr. Wu was not offered for
        this purpose) believed that Lynch qualified for the statutory
        mitigators, and Dr. Sesta stated that Lynch’s frontal-lobe impairment
        is such that some neuropsychologists might have opined that Lynch
        was legally insane at the time of the crime, although he would not do
        so.

Lynch, 

at 75. It went on to explain that Dr. Danziger’s testimony was

much more persuasive than the testimony from Lynch’s experts because Dr.

Danziger accounted for the actual facts of the murders. It also explained that the

planning and organization that Lynch used to commit the murders undermined his

claim that his actions were attributable to a brain impairment. See 

In concluding that the Florida Supreme Court overlooked Lynch’s experts’

testimony, the district court itself overlooked the Florida Supreme Court’s

discussion of that testimony. See 

(“AEDPA’s

command that we give state courts the benefit of the doubt . . . means, at the least,

that we should avoid finding internal inconsistencies and contradictions in the


   11
      Compared to the State’s other expert, Dr. Riebsame, the Florida Supreme Court found that:
“Dr. Danziger’s opinion is of much greater value because Dr. Riebsame eventually conceded that
some of his psychological testing of Lynch was invalid due to the nonstandardized fashion in
which the tests were administered.” Lynch, 

at 75.


                                              32
             Case: 12-15188     Date Filed: 01/08/2015    Page: 33 of 48


decisions of state courts where they do not necessarily exist.”) (quotation marks

omitted).

      Perhaps it would have been clearer, and easier for us, if the “failed to present

any evidence” sentence in the Florida Supreme Court’s opinion had instead said

that Lynch had “failed to present any persuasive evidence connecting any cognitive

condition to his behavior.” But AEDPA does not require that state courts write

every sentence in their opinions with maximum clarity to simplify our task.

Instead, it requires that we give state courts the benefit of the doubt and resolve

ambiguities in their opinions in favor of their judgments, not against them. See 

Florida Supreme Court’s assessment of the expert testimony is

looked at in the light that AEDPA requires, it is far from unreasonable. None of

Lynch’s experts squarely addressed his conduct and statements before, during, and

after the murders and explained how they could be squared with a diagnosis of

brain impairment. The district court’s reasoning does not dissuade us from our

conclusion. Its opinion focused on three general statements about brain

impairment that were taken from the testimony of three of Lynch’s testifying

experts. See 

. Considering each of those

statements against the undisputed historical facts shows that, just as the Florida

Supreme Court recognized, none of Lynch’s experts explained how their diagnosis




                                          33
               Case: 12-15188      Date Filed: 01/08/2015       Page: 34 of 48


of brain impairment could be squared with Lynch’s conduct and statements before,

during, and after the murders.

        First, Dr. Olander made the general observation that: “The interaction of

[brain damage and psychotic disorders] can be incredibly disabling for the

individual.” Of course. But she never explained how Lynch, if he was “incredibly

disabl[ed]” could have carefully planned and carried out the murder of Morgan, as

he d

she point to a single fact evidencing that Lynch actually was

“incredibly disabl[ed]” when he committed the murders.

        Dr. McCraney was given a hypothetical approximating Lynch’s situation

and replied that it was “more likely than not the brain impairment did contribute to

the crime itself.”12 But when the attorney for the State asked him if his opinion

accounted for the facts of the murders, Dr. McCraney clarified that his opinion was

based on Lynch’s “constant conditions,” not on his actual conduct during the

murders. In other words, in reaching his opinion about what may have contributed

to the crime, this expert failed to consider the facts leading up to the crime, the

facts of the crime, and the facts about what Lynch did and said after the crime.

Unlike Lynch’s expert witnesses, state courts and federal courts must consider all

of the relevant facts. The Florida Supreme Court did, and so do we.
   12
       Dr. McCraney’s full statement makes clear that his testimony was based on a hypothetical:
“Now, I was asked a hypothetical on direct to take into account stress and the person’s mental
state at the time. Based on that hypothetical my opinion was that more likely than not the brain
impairment did contribute to the crime itself.”


                                              34
             Case: 12-15188    Date Filed: 01/08/2015    Page: 35 of 48


      Finally, Dr. Sesta testified that in his opinion Lynch’s brain impairment left

him “less able to conform his behavior to the standards of the law than a normal

individual,” and that people with Lynch’s condition can behave normally for long

periods of time until emotional stressors trigger a “disaster.” But what about the

critical facts involving Lynch’s conduct leading up to, during, and after the crime?

Dr. Sesta used the ostrich technique to deal with them. He simply did not bother to

find out what they were. He testified that he didn’t even know what the facts

surrounding the murders were, and he never even attempted to analyze Lynch’s

state of mind during the crimes.

      Given that none of Lynch’s experts accounted for Lynch’s conduct before,

during, and just after the murders, the Florida Supreme Court’s factual

determination that Dr. Riebsame’s testimony was more credible is a reasonable one

within the meaning of § 2254(d)(2). That factual determination cannot be used as

a basis for not granting § 2254(d) deference to the Florida Supreme Court’s

decision.

                                         b.

      As our previous discussion about the expert testimony going to the prejudice

issue implies, the Florida Supreme Court’s decision rejecting this ineffective

assistance claim was not an unreasonable application of clearly established federal

law. See 28 U.S.C. § 2254(d)(1).


                                         35
               Case: 12-15188     Date Filed: 01/08/2015    Page: 36 of 48


        Prejudice in the context of the sentence stage of a capital trial is gauged in

terms of the mix of aggravating and mitigating circumstances. See Boyd v.

Comm’r, Ala. Dep’t of Corr., 

, 1341 (11th Cir. 2012). We ask

whether “without the errors, there is a reasonable probability that the balance of

aggravating and mitigating circumstances would have been different.” Bolender v.

Singletary, 

, 1556–57 (11th Cir. 1994). The answer comes from

taking the mitigating circumstances that were presented and adding to them the

ones that should have been but were not, and then considering the total mitigating

circumstances against all of the aggravating circumstances. See Porter v.

McCollum, 

, 41, 

, 453–54 (2009); 

.

        The death sentence imposed on Lynch for Morgan’s murder was based in

large part on the cold, calculated, and premeditated aggravating circumstance,

while the death sentence imposed for Caday’s murder was based in large part on

the heinous, atrocious, or cruel aggravating circumstance. See 

; Fla. Stat. § 921.141(5)(h), (i). Those “are two of the most serious

aggravators set out in [Florida’s] statutory sentencing scheme.” Larkins v. State,

, 95 (Fla. 1999); see also Buzia v. State, 

, 1216 (Fla.

2006) (same). And they both accurately characterized the extreme circumstances

of the two murders. 

Parts I–II.


                                           36
             Case: 12-15188     Date Filed: 01/08/2015    Page: 37 of 48


      Those are not, however, the only aggravating circumstances on which the

sentencing judge based the death sentences. For the murder of Morgan, as well as

for the murder of Caday, the judge also found and relied on the aggravating

circumstance that Lynch “had previously been convicted of a violent felony” and

the aggravating circumstance that he had committed the murder “while . . .

engaged in committing one or more other felonies.” 

(applying Fla. Stat. § 921.141(5)(b) & (d)).

      Against the three aggravating circumstances supporting each death sentence,

the only statutory mitigating circumstance was the one for “no significant history

of prior criminal activity.” See 

& n.5. There were also eight non-

statutory mitigating circumstances. 

a difference, Lynch’s new brain

impairment evidence would have to alter the balance between the aggravating and

mitigating circumstances. See Ponticelli v. Sec’y, Fla. Dep’t of Corr., 

, 1300 (11th Cir. 2012); Sochor v. Sec’y Dep’t of Corr., 

, 1030

(11th Cir. 2012). The Florida Supreme Court determined that the new evidence

would not have altered the balance because the theory that Lynch suffered from a

brain impairment that affected his conduct could not be squared with the fact that

he “displayed organized, methodical planning in his perpetration of these

offenses,” “displayed critical impulse control in electing not to inflict self-harm,”

and “explained his actions in a detailed, specific fashion” both during and after the


                                          37
             Case: 12-15188     Date Filed: 01/08/2015   Page: 38 of 48


crimes. Lynch, 

at 73, 76–77. The new evidence, in essence, adds little of

value on the mitigation side of the scale.

      The Florida Supreme Court’s holding that Lynch failed to carry his burden

of proving prejudice is objectively reasonable. We reached the same conclusion

about that court’s holding in another case involving similar circumstances. See

Rutherford v. Crosby, 

, 1316 (11th Cir. 2004). In that case, the

§ 2254 petitioner had planned and carried out the robbery and murder of an elderly

widow. See 

He contended that his counsel had rendered ineffective

assistance by failing to present expert opinion testimony in the sentence stage

showing that, as one expert put it, the petitioner had committed the murder while

“under the influence of ‘stressors’ because of his drinking and getting back

together with his wife.” 

1316. Applying AEDPA deference, we held

that reasonable jurists could conclude, as the Florida Supreme Court did, that there

was no reasonable probability such mental state mitigation evidence would have

altered the result given the evidence that the petitioner had planned and

deliberately carried out the murder in a cold and calculated way. 

reasoning applies here. The prosecution’s overwhelming evidence

proving that the murders were committed in a calculated, premeditated, and

deliberate manner undercuts the new evidence that he may have been mentally

impaired at the time of the two murders. Reasonable jurists could conclude, as the


                                             38
                  Case: 12-15188    Date Filed: 01/08/2015      Page: 39 of 48


Florida Supreme Court did, that the strong aggravating circumstances would still

have outweighed all of the mitigating circumstances. For that reason, Lynch’s

claim fails. 13

                                            VII.

        In its direct appeal, the State contends that the district court erred in granting

Lynch habeas relief on his claim that he was denied effective assistance of counsel

when his attorneys advised him to waive his right to a sentence-stage jury before

adequately investigating and advising him about his brain impairment as a

potential mitigating factor. See 

–09. The Florida

Supreme Court held that trial counsel had not performed deficiently because they

made a reasonable strategic decision to avoid what counsel felt would almost

certainly be an emotional jury in favor of a potentially “less emotional, highly

   13
       Lynch also raised a separate but related claim in his federal habeas petition. Compare

–96 (faulting counsel for failing to find non-expert evidence
about his background), with 

(faulting counsel for failing to secure expert
testimony about his brain impairment). Lynch contends that he was prejudiced by trial counsel’s
failure to find and present additional background information from lay witnesses and documents.

He argues that the additional evidence would have strengthened his mental health
mitigation strategy, provided humanizing details about him, and given insight into his
relationship with Morgan and his financial difficulties before the murder. See 

The Florida Supreme Court pointed out that most of that lay witness testimony and documentary
evidence had been covered by Dr. Olander at the sentence hearing, and the rest was either
“irrelevant, cumulative, disputed, or contradicted.” Lynch, 

at 72–73. The state court
rejected the claim on the grounds that: (1) it was not deficient performance for trial counsel to
choose to present Lynch’s background information through a mental health expert instead of lay
witnesses and documents; and (2) Lynch was not prejudiced by trial counsel’s failure to present
that cumulative, disputed, or contradicted evidence. See 

court concluded that
neither of those determinations was objectively unreasonable, 

,
and so do we.


                                               39
              Case: 12-15188     Date Filed: 01/08/2015    Page: 40 of 48


experienced judge.” Lynch, 

at 71. It also held that Lynch was not

prejudiced because his “asserted ignorance of . . . a comparatively minor mental-

health diagnosis could not have affected his decision to waive a penalty-phase

jury.” 

       The district court disagreed with both of the state court’s holdings. First, it

determined that counsel’s advice could not be a reasonable strategic choice

because it was based in part on counsel’s deficient investigation into mental health

mitigation evidence. See 

. The district court also

concluded that the Florida Supreme Court’s prejudice determination had

“unreasonably discounted the weight and the importance of the available mental

health mitigation of which Petitioner was not apprised prior to his waiver of a

jury.” 

(citing 28 U.S.C. § 2254(d)(2)). That conclusion was based on

the district court’s reading of the “failed to present any evidence” sentence in the

Florida Supreme Court’s discussion of Lynch’s failure-to-investigate claim. See

at 1303). For reasons we have already discussed at length, the district

court misread that sentence. 

Section VI.C.2.a. It should not have cast

aside the § 2254(d) deference owed to the Florida Supreme Court’s decision on

this issue.

       After conducting a de novo review of the record, the district court concluded

that Lynch had been prejudiced. See 

Its belief that there was a


                                          40
               Case: 12-15188       Date Filed: 01/08/2015      Page: 41 of 48


reasonable probability that Lynch would have opted for a sentence-stage jury but

for trial counsel’s deficient performance was based on three things: (1) at the state

post-conviction hearing, lead trial counsel testified “that brain damage is a

compelling mitigator for a jury to consider”; (2) Lynch’s mental health was “the

only weighty mitigating factor in his defense”; and (3) in a letter to trial counsel,

Lynch had “expressed concern that Judge Eaton would be harsher in sentencing

than the judge initially assigned to the case.” 

those three factors speak

directly to the question of whether a jury might have been more favorable to Lynch

than a judge, and thus none of them support the conclusion that if Lynch had been

informed of the mental state mitigating evidence he would have rejected his

counsel’s advice to waive a jury at the sentencing stage. We will discuss that more

in a moment.

        We decide this claim on the prejudice issue. 14 In doing so, we assume —

without deciding — that Lynch’s ineffectiveness claim is governed by the

prejudice standard from Hill v. Lockhart, 

, 58–59, 

, 370

(1985). The Hill decision requires a petitioner claiming that he pleaded guilty

based on his trial counsel’s deficient advice to show “a reasonable probability that,


   14
       Because we conclude that the Florida Supreme Court’s prejudice determination was
reasonable, we need not consider the issue of trial counsel’s performance. See 

, 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.”).


                                               41
              Case: 12-15188     Date Filed: 01/08/2015     Page: 42 of 48


but for counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” 

106 S. Ct. at 370. It is not entirely clear that Hill

applies where, as here, the ineffective assistance claim is based on counsel’s advice

to waive a jury at a sentence hearing, instead of on advice to plead guilty and

waive a trial on guilt.

      In similar circumstances, two of our sister circuits have applied Strickland’s

prejudice standard instead of Hill’s and asked if there was a reasonable probability

that the ultimate outcome of the proceeding would have been different. See United

States v. Lilly, 

, 195–96 (3d Cir. 2008) (applying Strickland to

counsel’s advice to opt for a bench trial in the guilt stage); Jells v. Mitchell, 

, 510–11 (6th Cir. 2008) (applying Strickland to counsel’s advice to waive

a jury at the guilt and sentence stages of a capital trial). But here both the Florida

Supreme Court and the district court applied Hill’s prejudice standard, see 

, 70–71; 

–09, and Lynch urges us to

do so as well. Because of that, we will assume for purposes of this case, as the

parties both contend, that Hill applies.

      Hill instructs courts that, where a petitioner faults counsel for advising him

without first finding and informing the petitioner about evidence relevant to that

advice, the prejudice determination “will depend on the likelihood that discovery




                                           42
               Case: 12-15188       Date Filed: 01/08/2015      Page: 43 of 48


of the evidence would have led counsel to change his recommendation.”15 474

U.S. at 

. Assessing that likelihood “will depend in large part

on a prediction whether the evidence likely would have changed the outcome” with

a jury recommending a sentence to the judge as opposed to a judge determining a

sentence without a jury’s recommendation. 16 

habeas relief on this

portion of his claim, Lynch must establish that the Florida Supreme Court’s

prejudice analysis is either “contrary to” or “an unreasonable application of”

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

        A state court decision “is not contrary to federal law unless it contradicts the

United States Supreme Court on a settled question of law or holds differently than

did that Court on a set of materially indistinguishable facts.” Evans v. Sec’y, Dep’t

of Corr., 

, 1325 (11th Cir. 2013) (en banc) (quotation marks

omitted). The Florida Supreme Court’s decision did neither. It applied an

objective form of prejudice analysis that focused on two things: (1) how the

“comparatively minor mental-health diagnosis” from Lynch’s new expert evidence

would not have affected the balance of aggravating and mitigating circumstances,
   15
       As we already mentioned, the recommendation in Hill was to plead guilty instead of going
to trial. Here, the recommendation was to waive the sentence-stage jury and have the trial judge
determine Lynch’s sentence without a jury’s recommendation.
   16
       In Hill, the Supreme Court framed the inquiry as “a prediction whether the evidence likely
would have changed the outcome of a trial.” 474 U.S. at 

. That test does
not fit here because the choice is not between a trial and no trial, but between a judge making a
sentence determination with or without first receiving a jury’s recommendation. The Hill
standard must be altered to fit the circumstances.


                                              43
               Case: 12-15188       Date Filed: 01/08/2015       Page: 44 of 48


and (2) Lynch’s failure to offer any reason to conclude that a jury would be more

receptive to that evidence than “a potentially less emotional, highly experienced

jurist.” Lynch, 

at 71. The Supreme Court has not held that courts

applying Hill’s prejudice standard must determine what the particular petitioner or

his attorney would have done if the additional evidence had been discovered. And

Hill itself teaches that prejudice determinations based on the “predictions of the

outcome at a possible trial . . . should be made objectively.” 

–

; see also Pilla v. United States, 

, 373 (6th Cir. 2012)

(“The [Hill] test is objective, not subjective . . . .”). Thus, the state court decision

was not contrary to clearly established federal law. 18

        Nor was the Florida Supreme Court’s prejudice analysis an “unreasonable

application of” clearly established federal law. A state court decision is not an

unreasonable application of federal law unless the petitioner shows that there is no


   17
       The Florida Supreme Court’s acknowledgment that a judge is generally less apt to be
emotionally swayed by the facts of the crime and better able to fully consider the evidence
relating to possible brain impairment does not run afoul of Hill’s admonition that its prejudice
inquiry should be made “without regard for the idiosyncrasies of the particular 

, 106 S. Ct. at 371 (quotation marks omitted). Judges as a class and juries as a
class are not particular decisionmakers.
   18
      Because the Florida Supreme Court properly adopted an objective approach, it had no need
to address the subjective and equivocal testimony that Lynch’s trial counsel gave at the state
post-conviction hearing. When first asked if the new mental health evidence would have
changed his advice to Lynch, counsel said “I think so.” But he later retreated from that answer.
After being asked again if he would have advised Lynch to waive the sentence-stage jury if he
had all of the evidence presented at the state post-conviction hearing, he replied “I don’t know.”
Such subjective assessments are irrelevant. See 

.


                                               44
             Case: 12-15188     Date Filed: 01/08/2015   Page: 45 of 48


possibility that “fairminded jurists” could debate whether the state court’s decision

is inconsistent with the holding of a prior Supreme Court decision. 

(quotation marks omitted). Here, the analysis turned on two factors.

The first factor was the Florida Supreme Court’s determination that the new brain

impairment evidence would not have affected the balance of aggravating and

mitigating circumstances because: (1) the new evidence established only that

Lynch had a “mild cognitive impairment”; (2) that impairment “ha[d] not affected

his ability to lead an otherwise normal life”; (3) he was “of average overall

intelligence”; and (4) he had “never connected this ‘impairment’ to his actions on

March 5, 1999.” Lynch, 

at 70–71. That was not an unreasonable

assessment. As we already explained when analyzing Lynch’s failure-to-

investigate claim, the facts of the crime and the expert testimony offered by the

State effectively undercut the brain impairment testimony of Lynch’s experts. 

Section VI.C.2.

      The second factor in the Florida Supreme Court’s prejudice analysis was

Lynch’s failure to offer any reason to think the jury would have been more

receptive than the judge to the brain impairment evidence so that the new evidence

“would have altered his decision to forgo a penalty-phase jury in favor of a

potentially less emotional, highly experience jurist.” Lynch, 

at 71.

Neither Lynch’s brief nor the district court’s opinion offers any reason why a jury


                                         45
             Case: 12-15188     Date Filed: 01/08/2015    Page: 46 of 48


would be more likely than a judge to be persuaded by such evidence, let alone a

reason with which no “fairminded jurists” could disagree. See 

(quotation marks omitted). The Florida Supreme Court’s prejudice analysis

was therefore not an unreasonable application of clearly established federal law.

      Nor do the three things that the district court relied on in its de novo

determination that there was prejudice overcome the § 2254(d) deference owed to

the Florida Supreme Court’s determination. See 

.

None of them speaks directly to “whether the evidence likely would have changed

the outcome” with a jury and a judge as opposed to a judge alone, which Hill

identifies as the primary factor in its prejudice inquiry. 474 U.S. at 

. Fairminded jurists could agree with the state court’s reasoning and

disagree with the district court’s. See 

.

      The district court focused first on lead trial counsel’s “admission that brain

damage is a compelling mitigator for a jury to consider.” 

. Counsel’s testimony at the state post-conviction hearing was that juries

are “more receptive to a mitigator like brain damage than they are to the common

scheme of poor upbringing and mental illness.” But that testimony simply reflects

the fact that, as counsel put it, “showing a physical defect of the brain” is often

more persuasive than “showing something amorphous like a mental illness.”




                                          46
             Case: 12-15188     Date Filed: 01/08/2015     Page: 47 of 48


Counsel never suggested that juries are more receptive than judges to brain

impairment evidence, which is what matters here.

      The district court also pointed out that Lynch’s “mental health [w]as the

only weighty mitigating factor in his defense” and that in two letters to trial

counsel Lynch expressed interest in presenting mental health mitigation evidence.

statements speak to mental health mitigation generally, not to the

relevant question of whether a judge or a jury would be more receptive to that

mitigation. There is absolutely nothing in the record to support the proposition,

which the district court apparently relied on, that juries would be more receptive

than judges to mental health mitigation evidence.

      Finally, the district court referred to Lynch’s letter to trial counsel dated

August 29, 2000, which discussed the fact that the judge who initially had been

scheduled to preside over the trial had been replaced by Judge Eaton. 

hope that the new judge would not be harsher on sentencing, Lynch

wrote: “Also the change of judge from Alley to O.H. Eaton I don’t feel will help,

he reminds me of a[] cranky old man & possibly harsher as concerning sentence. I

hope not.” Lynch’s vague expression of concern does not make the Florida

Supreme Court’s prejudice determination objectively unreasonable. He chose to

waive a sentence-stage jury despite his initial concern about Judge Eaton, and his

worry that Judge Eaton might be harsher than Judge Alley does not directly answer


                                          47
              Case: 12-15188       Date Filed: 01/08/2015     Page: 48 of 48


the relevant question: Judge Eaton or a jury. 19 As the Florida Supreme Court

recognized, in Lynch’s case the primary reason for choosing Judge Eaton instead

of a jury was the likelihood that Judge Eaton would be less emotional and therefore

more likely to fully and fairly consider any mitigation evidence. See Lynch, 

at 47. That factor still favored choosing Judge Eaton even with the new mental

health mitigation evidence. A reasonable jurist could conclude that Lynch was not

prejudiced by his counsel’s advice to waive the sentence-stage jury. The district

court erred in granting Lynch sentence-stage relief on this claim.

                                           VIII.

        Because Lynch was not denied the effective assistance of counsel, the part of

the district court’s judgment denying habeas relief to Lynch is affirmed, and the

part of the judgment granting him relief is reversed.

        AFFIRMED in part and REVERSED in part.




   19
      When Lynch waived his right to a sentence-stage jury, he knew that Judge Eaton would be
the judge presiding at the sentence hearing. See Lynch, 

at 71. Counsel confirmed that
fact during oral argument before this Court.


                                             48