Carol M. Dittmar, Tampa, FL, for Respondent-Appellant.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
The petitioner, William H. Kelley, is a Florida prisoner on death row, having been convicted of first degree murder. The district court granted a writ of habeas corpus setting aside his conviction and sentence. We reverse.
This case ? from the time of the murder to the present ? has spanned nearly thirty-eight years. Understandably, its history is quite complicated. For the readers' convenience, therefore, we preface the opinion with the following table of contents:
I. Factual Background
A. The Maxcy Murder
B. John Sweet's Trial
C. Kelley's State Legal Proceedings
1. Kelley's Arrest
2. Kelley's Two Trials
3. Kelley's Direct Appeal
4. Kelley's Rule 3.850 Motion and Appeal
5. Kelley's Motion for Habeas Corpus Relief from the Florida Supreme Court
II. Federal Procedural History
A. Kelley's Federal Habeas Petition
B. Kelley's Federal Evidentiary Hearing
C. Disposition of Kelley's Federal Habeas Petition and Subsequent Developments
III. Federal Evidentiary Hearing
A. Legal Standard for Permitting Federal Evidentiary Hearings
B. Application of the Legal Standard to Kelley's Case
1. The District Court's Failure to Ascertain the Appropriate Legal Standard
2. The District Court's Failure to Apply Any Legal Standard
IV. Rulings on Habeas Claims
A. Ineffective Assistance of Counsel
1. The Exhaustion Requirement
2. Application of the Exhaustion Requirement to Kelley's Case
3. Kelley's Lack of Prejudice from Ineffective Assistance
B. Prosecutorial Misconduct
1. The Brady rule
2. Application of the Brady Rule to Kelley's Case
a. The Massachusetts Immunity Order and the Joe Mitchell Report
b. Transcript of John Sweet's First Trial
c. Roma Trulock Report
d. Fingerprint Report
3. Conclusion Regarding Brady Claims
V. Conclusion
I.
Factual Background
A. The Maxcy Murder
This sordid tale begins with an illicit love affair between John Sweet, a real estate broker with shadowy ties to Boston's criminal underworld, and Irene Maxcy, who was married to Charles von Maxcy ("Maxcy"), a wealthy citrus grower. It culminates in Maxcy's assassination at the hands of two hit men. The investigation and legal proceedings following the murder have spanned almost four decades and have involved some of the best known lawyers in the country.
The district court described the circumstances leading up to and surrounding Maxcy's murder as follows:
Irene Maxcy and John Sweet were lovers, and they planned to kill Irene's husband, Charles von Maxcy, a wealthy citrus grover [sic] and rancher from Sebring, Florida. Sweet and Irene talked for months about the murder, after which they planned to live together on Maxcy's large estate. Sweet contacted an acquaintance, William Bennett of Boston, Massachusetts. Arrangements were made, and a price was set: $5000 up front, and $15,000 after the murder. On October 1, 1966, Sweet went to Daytona, Florida to meet Andrew von Etter. Von Etter was to do the killing, along with a partner. The next day von Etter called Sweet to tell him the partner, "William Kelley", had arrived. On October 3rd, Sweet drove von Etter and "Kelley" to the estate. The alleged killers showed Sweet the weapons they would use, knives and a revolver, which they kept in a satchel. Sweet drove back to Sebring. Charles von Maxcy was murdered that day. A couple weeks later, Sweet went to Boston to pay the $15,000 balance due for the murder.
Unfortunately, the murder did not signal the beginning of a blissful life on the estate for Irene Maxcy and John Sweet. Sweet wanted more money, purportedly to pay off the murder balance, and he began to harass and threaten Irene and her five-year-old daughter daily. Terrified, Irene Maxcy went to the authorities. In exchange for immunity, she implicated Sweet in the murder-for-hire scheme.
Kelley v. Sec'y for the Dep't of Corr., 222 F.Supp.2d 1357, 1358 (S.D.Fla.2002) (order granting habeas relief on claim (1)). Before Irene Maxcy came forward, a comprehensive investigation was underway. Special Agent Roma Trulock of the Florida Department of Law Enforcement ("FDLE") headed that investigation and interviewed potential eye witnesses. In particular he spoke with Kaye Carter, who met Kelley and Von Etter around the time of the murder at the Daytona Inn Motel, where the prosecution says the hit men lodged before they drove to Sebring to kill Maxcy.
B. John Sweet's Trial
Sweet was tried in the Circuit Court of Polk County, Florida. As the district court explained,
Sweet was arrested in 1967, charged with first degree murder. It became known in the course of the investigation for Sweet's trial that the "triggermen" in the murder were named von Etter and "Kelley". These men were not charged at this time, however, as prosecutors felt they had insufficient evidence against them.
Irene Maxcy was the star witness for the prosecution in Sweet's first trial. Her testimony was erratic and difficult as she denied, even under the protection of immunity, that she wanted to kill her husband. She testified it was entirely Sweet's idea. She claimed to have witnessed many of the phone calls Sweet had made in arranging the murder, and she related many of the details about which Sweet had kept her informed, including the murder itself. She further testified that she gave Sweet more than $35,000 to help pay for the murder, and that Sweet had wanted another $75,000. Sweet, testifying on his own behalf, denied any involvement in the crime.
Id. at 1358-59. Sweet also launched a vitriolic character assault on Irene Maxcy, accusing her of partaking in a host of deviant sex acts. The trial ended in a hung jury.
In 1970, Sweet was tried a second time. Irene Maxcy testified against him again, and, again, Sweet denied any involvement in the murder. This time, however, Sweet was convicted of first degree murder and sentenced to life in prison.
Unfortunately, the second trial proceedings were tainted by an evidentiary irregularity. Sweet's defense team repeated their earlier attacks on the credibility of both Irene Maxcy and another important witness against Sweet: Roma Trulock, the primary investigator for Maxcy's murder. Sweet v. State, 235 So.2d 40, 41 (Fla.2d Dist.Ct.App.1970). Defense counsel believed that Irene Maxcy and Trulock were engaged in a romantic relationship and, therefore, that Trulock had an interest in seeing Sweet incarcerated. To determine whether Irene Maxcy and Trulock would admit to the affair, the court permitted defense counsel to examine them outside the presence of the jury. Trulock denied the allegation vehemently, but Irene Maxcy did not. Irene Maxcy testified, among other things, that she and Trulock had engaged in sexual intercourse and that Trulock had expressed a desire to get Sweet convicted so that she and Trulock could take a trip to "the Islands." Id. at 41-42. The court excluded such testimony, sustaining the State's objection. Following his conviction, Sweet challenged the court's ruling on appeal. Id. at 40-41. In a two-to-one decision, the district court of appeal reversed Sweet's conviction and awarded a new trial. Id. at 42. In the court's view, "the proffered cross-examination in question went directly to undermine the very foundation of the State's case, i.e., the credibility of Irene Maxcy and C.R. Trulock. Its exclusion was a substantial frustration of [Sweet's] right to effective cross-examination...." Id. After this ruling, Sweet's defense, citing Florida's speedy trial rules, filed a motion to discharge Sweet from prosecution. The state conceded that it could not proceed against Sweet again because key witnesses had become unavailable. On November 16, 1971, the circuit judge who had presided over Sweet's case found that he had "no course other than to grant the motion." Commending the efforts of the prosecution, the judge ? in his own words ? "reluctantly" ordered that Sweet "stand[s] discharged from further prosecution...."
In April of 1976, the state attorney petitioned the circuit court to enter an order authorizing the clerk of the court to destroy certain physical evidence held for Sweet's prosecution. The court granted that petition, and several articles of evidence, including a bullet, a bloody bed sheet, and a shred from the victim's shirt, were destroyed.
Sweet had gotten away with murder, but his role in the prosecutor's pursuit of the matter had not ended. As the district court observed, after his conviction was reversed,
John Sweet wasted little time in matriculating back into the underworld. By 1981, Sweet was facing charges in Massachusetts of prostitution, narcotics distribution, arson, bribery, counterfeiting, loan sharking, and hijacking, among other things. With authorities closing in on him, Sweet went to them first. His plan was to win immunity in exchange for information he had on the murder of Charles von Maxcy. William Kelley was the target, as Sweet implicated him as one of the murderers. The Massachusetts authorities brought Sweet to Florida where Sweet gave authorities there his confession. The next day Sweet was awarded immunity in Massachusetts.
Kelley v. Sec'y for the Dep't of Corr., No. 92-14246 at 4 (S.D.Fla. Aug. 31, 2000) (order denying habeas claims (4)-(6)). On December 16, 1981, a Highlands County grand jury indicted the petitioner, William H. Kelley, for first degree murder.
C. Kelley's Arrest and Prosecution
1. Kelley's Arrest
William H. Kelley was arrested on June 16, 1983, roughly seventeen years after Maxcy's murder. By that time, Walter Bennett, who was Sweet's contact for the murder contract, and Andrew von Etter, who was Kelley's supposed partner in the killing, were both dead. Irene Maxcy, of course, had immunity for her role in the murder.
Three special agents of the FBI apprehended Kelley at a motel in Tampa, Florida. They had received a tip that a guest of the motel met Kelley's description. One of the agents, Ross Davis, testified at Kelley's trial that the FBI sought and arrested Kelley for "[u]nlawful flight to avoid prosecution" in North Carolina. The agents did not realize that Kelley was wanted for murder in Florida until they took him back to their Tampa office and conducted a background check. When Davis finally informed Kelley of his indictment for the Maxcy murder, Kelley made statements indicating knowledge of the crime and suggested that the State would never be able to obtain a conviction. These statements eventually became a subject of dispute at Kelley's trial.
2. Kelley's Two Trials
Kelley enlisted the assistance of several attorneys in preparing his case for trial. He was represented initially by Robert E. Dinsmore of Boston and Ronald K. Cacciatore of Tampa. On October 20, 1983, however, Kelley, acting pro se, filed a document entitled "Discharge of Attorneys," which stated that Dinsmore and Cacciatore were no longer authorized to act on Kelley's behalf and that new counsel would begin representing him immediately. Kelley explained that this decision was in his best interest and was made without coercion or pressure from Dinsmore and Cacciatore. The same day, Nicholas G. Schommer, a lawyer practicing in Sebring, moved the court to permit Dinsmore and Cacciatore to withdraw as Kelley's counsel. The court granted the motion.
On December 7, Schommer filed a notice of appearance, stating that he would act as Kelley's local counsel and that Kunstler and Mason, a New York law firm, would serve as Kelley's primary counsel. William Kunstler and Mark Gombiner, partners of the firm, moved the court on December 8 for leave to appear pro hac vice. The court granted their motion on December 20.
Sometime between December 20, 1983 and January 12, 1984, Jack Edmund of Bartow, Florida, joined Kunstler and Gombiner as part of Kelley's defense team. Kunstler testified later that he first met Edmund and, in fact, first learned of Edmund's role in the defense on January 12, 1984, when Kunstler came to Sebring to argue pretrial motions.
Prior to trial, Kelley's defense team also included a paralegal named Harvey Brower. Brower was formerly a Massachusetts lawyer, but as the district court explained,
Brower was disbarred from the practice of law in Massachusetts in August, 1979, for defrauding one of his clients. In re: Harvey Brower, No. 79-14BD (Mass. Aug. 16, 1979). Earlier in his Massachusetts legal career, Brower was censured by its Supreme Judicial Court for fraudulent conduct in negligence cases. In re Harvey Brower, No. 29871 Law (Mass. Feb. 23, 1973). Brower also was convicted in the Western District of Louisiana for unlawfully conspiring to aid and abet the crime of bail jumping. United States v. Marino,
617 F.2d 76, 78 (5th Cir.1980).
Kelley v. Sec'y for the Dep't of Corr., 238 F.Supp.2d 1325, 1328 (S.D.Fla.2002) (order denying habeas claim (3) but granting relief on claim (2)) (footnote omitted). The district court further noted that Brower's law office had also been involved in a counterfeit bond sale conspiracy. Brower's conduct in the course of Kelley's defense eventually played a critical role in the district court's conclusion that Kelley suffered ineffective assistance of counsel. It is not entirely clear how or when Brower became involved in the case. The record permits the inference that Brower arrived on the scene around the time Kelley decided to discharge Dinsmore and Cacciatore as his counsel. It is equally plausible, however, that Brower's services were first employed at Kelley's request even before Dinsmore was hired.
At the hearing the circuit court held in July 1988 on Kelley's Rule 3.850 motion to vacate conviction and sentence, Kunstler testified that Brower was the one who first contacted him about participating in Kelley's defense. In fact, Kunstler never met Kelley until he went to Sebring on January 12, 1984 for a motions hearing. Kunstler was under the impression that Brower had represented Kelley on other matters in the past and that Brower would be preparing the case and virtually all of the pretrial motions. Kunstler expected that his own role would be confined to trial counsel alone, and he was not initially concerned with the amount of responsibility that would be entrusted to Brower. Kunstler expressed a great deal of confidence in Brower's ability despite the disbarment, and he regarded Brower as both an "excellent" lawyer and investigator. In fact, when Kunstler missed a hearing on pretrial motions, he recommended that the nonlicensed Brower argue the motions in his stead.
Kelley's trial began in January of 1984. By that time, Brower had disappeared. As the federal district court later observed, "Kunstler characterized Brower as a thief who `absconded' with fees without ever performing his investigatory duties." Kelley, 238 F.Supp.2d at 1328 (S.D.Fla.2002). Kunstler and Edmund were the dominant players in Kelley's defense. Kunstler took primary responsibility for many of the most important trial tasks, including the cross-examination of the state's star witness, John Sweet. The jury was unable to reach a verdict, and on January 30, the court declared a mistrial.
The state decided to prosecute Kelley again. With Brower gone, the defense enlisted the assistance of a investigator in Edmund's office to do some additional work in preparation for the retrial.
Kelley's second trial commenced on March 27. Again, Kunstler and Edmund shared the major responsibilities for Kelley's defense, but Edmund played a more significant role in the second proceeding. In particular, the task of cross-examining John Sweet now fell to Edmund. This important responsibility included impeaching Sweet's testimony about a conversation he had with Kelley years after the murder, in which Kelley allegedly told Sweet, "I stabbed [Maxcy] three or four times and he kept coming after us, so I had to shoot him in the head." Kelley v. State, 486 So.2d 578, 580 (Fla.1986). One of the State's other key witnesses was Abe Namia, a private investigator hired by Sweet's defense team when Sweet was being prosecuted. Namia's testimony corroborated Sweet's and was admitted to rebut the inference that Sweet recently fabricated his version of the story. Id. At the conclusion of the State's case, the defense moved for judgment of acquittal. The court denied the motion. The defense then rested without introducing any evidence. This decision entitled the defense to make the first and last closing arguments to the jury. When asked at the evidentiary hearing on Kelley's Rule 3.850 motion whether he considered the defense's decision to rest without putting on a case "to be a matter of trial strategy," Edmund responded, "Of course." He characterized the decision as a no-brainer in Kelley's case, and he suggested that any good defense lawyer would have adopted the same approach.
On March 30, the jury found Kelley guilty of first degree murder. At the end of the sentencing phase of the trial, a majority of the jury recommended that he receive the death penalty. On April 2, consistent with the jury's recommendation, the court sentenced Kelley to death.
3. Kelley's Direct Appeal
Kelley appealed his conviction and sentence to the Florida Supreme Court. Kunstler and Edmund appeared on Kelley's initial brief, which challenged several of the trial court's rulings. Specifically, Kelley contended that:
(1) The court should have dismissed his indictment because the destruction of physical evidence after Sweet's second trial violated Kelley's due process rights.
(2) The court should have excluded Abe Namia's testimony regarding a conversation between Namia and Sweet in 1967.
(3) The court erred by refusing to answer a question posed the jury during its deliberations. In particular, the jury asked "if John J. Sweet received immunity in Florida for 1st Degree murder and perjury before he gave information on the Maxcy trial and if he had anything to gain by his testimony[.]"
(4) The court erred in allowing the jurors to take notes.
(5) The court erred in admitting statements Kelley made to the FBI agents who apprehended him indicating Kelley's knowledge about the Maxcy murder at the time of his arrest.
(6) Florida's statute governing the proceedings for issuing death sentences is facially unconstitutional and, in any event, was improperly applied by the court.
In addition to the brief Kunstler and Edmund filed, the supreme court allowed Kelley to file a supplemental brief prepared by Barry Haight, a Massachusetts lawyer, and Donald Ferguson, a Florida lawyer. Beyond the arguments advanced by Kunstler and Edmund, the supplemental brief asserted that the court gave improper, nonstandard jury instructions ? in particular, an Allen charge ? which might have coerced the jury to overcome an impasse. Significantly, the supplemental brief also claimed that Kunstler and Edmund were ineffective and, therefore, deprived Kelley of his right to effective assistance of counsel under the Sixth Amendment. In support of this claim, the supplemental brief cited (1) counsels' failure to prepare pretrial motions properly; (2) counsels' failure to move the court to dismiss the indictment due to the State's destruction of evidence after Sweet's second trial; (3) Kunstler's failure to appear in Sebring on January 11 at the hearing the court had scheduled for Kelley's pretrial motions and his ostensible willingness to allow Brower to argue those motions; (4) counsels' failure to object to the court's Allen charge; and (5) counsels' failure to object to the court's refusal to answer the jury question described above.
The supreme court rejected all of Kelley's arguments. Kelley, 486 So.2d at 586. It also explained that Kelley's ineffective assistance claim could not be resolved on "the record as it stands." Id. at 585. That claim could be raised, however, in a collateral motion for postconviction relief. Id. With the assistance of Alan Dershowitz, a Harvard Law School professor, Kelley petitioned the United States Supreme Court for a writ of certiorari. The Court denied the writ on October 6, 1986. Kelley v. Florida,
479 U.S. 871 , 107 S.Ct. 244, 93 L.Ed.2d 169 (1986).
4. Kelley's Rule 3.850 Motion and Appeal
In 1987, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, Kelley moved the trial court (the "Rule 3.850 court") to vacate his conviction and sentence. At this stage, Kelley was represented by Barry Wilson, a Boston lawyer, and James Green, who practiced in West Palm Beach. The motion alleged that the State had denied Kelley due process of law for the following reasons: (1) the State destroyed certain tangible exhibits introduced into evidence during Sweet's prosecution; (2) due to the destruction of these exhibits, defense counsel could not effectively cross-examine the State's expert witness who testified about them; (3) the prosecution illegally suppressed numerous items of exculpatory evidence; (4) the prosecution improperly interfered with defense counsel's cross-examination of Abe Namia; (5) the prosecutor's closing argument to the jury contained intentional misstatements of fact; and (6) Kunstler and Edmund deprived Kelley of effective assistance of counsel.
The Rule 3.850 court held an evidentiary hearing on two issues: "1) whether the prosecution suppressed evidence favorable to the defendant [claim (3)], and 2) whether the defendant was denied effective assistance of counsel [claim (6)]." After receiving the parties' evidence, the court made written findings of fact and conclusions of law and denied Kelley's motion. The Florida Supreme Court, largely adopting those findings and conclusions, affirmed. Kelley v. State, 569 So.2d 754, 762 (Fla.1990). Responding to claim (1), the court found that "[t]he state was not at fault in the destruction of the evidence" and therefore did not deny Kelley of due process of law. Id. at 756. The court found that claims (4) and (5) were barred because they were not cognizable in a Rule 3.850 proceeding. Id. Although the supreme court did not say so in its opinion, the Rule 3.850 court correctly found claim (2) barred for a similar reason: "The admission of evidence and testimony at trial is clearly a matter which could have been raised on appeal."
In rejecting claims (3) and (6), the supreme court quoted the lower court's reasoning. Turning to claim (3), the court addressed all of the items the State had withheld from the defense and concluded that each was either legally immaterial or sufficiently available to defense counsel.
The court distilled Kelley's claim of ineffective assistance of counsel, claim (6), into seven discreet instances. The court responded to each, finding that every alleged instance of ineffective assistance was the result of trial strategy, was legally immaterial, or otherwise was not supported by the evidence presented at the Rule 3.850 hearing. The court concluded that both Kunstler and Edmund were "capable and effective" in their defense of Kelley. Id. at 761.
5. Kelleys' Motion for Habeas Corpus Relief from the Florida Supreme Court
Kelley's final attempt to seek relief in the state court system was a petition to the Florida Supreme Court for a writ of habeas corpus. In that petition, Kelley raised three claims: "(1) his appellate counsel [were] ineffective; (2) the application of the death penalty statute to this crime is ex post facto; and (3) the aggravating factors [supporting his death sentence] of pecuniary gain and cold calculated, and premeditated are overbroad." Kelley v. Dugger, 597 So.2d 262, 263 (Fla.1992) (emphasis added). On March 12, 1992, the court rejected each of these claims and denied Kelley's petition. Id. at 265.
II.
Federal Procedural History
A. Kelley's Federal Habeas Petition
On October 9, 1992, Kelley, represented by Laurence Tribe, a Harvard Law School professor, and Barry Wilson, petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus. See
28 U.S.C. 2254. The petition, nearly 300 pages in length (not counting attached exhibits), asserted six bases for relief:
(1) prosecutorial misconduct, including deliberate misstatements to the jury and the suppression of exculpatory evidence;
(2) ineffective assistance of trial counsel, including "failure to investigate, to depose witnesses, to present a case in defense, and to perform other basic defense functions";
(3) deprivation of Kelley's Sixth, Eighth, and Fourteenth Amendment rights through the destruction of evidence following John Sweet's second trial;
(4) improper admission at trial of Abe Namia's testimony;
(5) improper admission at trial of statements Kelley made to FBI Special Agent Ross Davis at the time of his arrest; and
(6) unconstitutional imposition of the death sentence.
Kelley's petition contained a demand for an evidentiary hearing.
On August 31, 2000, the court issued an order denying claims (4), (5), and (6). The court concluded that those claims could be decided on the basis of the record of the proceedings in the trial stage of Kelley's prosecution. In the same order, the court deferred its decision on claims (1), (2), and (3) until it decided whether an evidentiary hearing on those claims was necessary. Kelley, No. 92-14246 at 29 (S.D.Fla. Aug. 31, 2000). On November 22, 2000, over eight years after Kelley filed his petition, the district court granted him an evidentiary hearing on the remaining claims over the State's repeated objections.
B. Kelley's Federal Evidentiary Hearing
The district court decided to hold an evidentiary hearing before it resolved three claims: (1) that the prosecution deprived Kelley of due process by suppressing exculpatory evidence; (2) that Kelley was prejudiced by ineffective assistance of counsel; and (3) that the destruction of evidence following Sweet's second trial deprived Kelley of due process of law. The hearing commenced on April 24, 2001. Attorneys James C. Lohman of Tallahassee, Florida and Joseph Oteri of Boston, Massachusetts appeared on Kelley's behalf. Carol Dittmar appeared for the State. In total, Kelley's attorneys called eleven witnesses; the State called two.
The first two days of the hearing were held in Boston. Kelley presented the testimony of eight witnesses, one of whom was co-counsel Joseph Oteri. The third day of the hearing was held on July 9 in Ft. Pierce, Florida. At that time, Kelley called three additional witnesses. The same day, the State called both of its witnesses, one being Edmund. Twelve of the thirteen individuals who testified at the evidentiary hearing had not testified at the Rule 3.850 hearing in state court. Only Edmund testified at both hearings.
C. Disposition of Kelley's Federal Habeas Petition and Subsequent Developments
On September 19, 2002, the court issued an order granting Kelley relief on claim (1). Based in part on testimony adduced at the evidentiary hearing, the court concluded that Kelley was entitled to a new trial because the State had withheld material exculpatory evidence in derogation of the rule laid down in Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Kelley, 222 F.Supp.2d at 1363 (S.D.Fla.2002). Having granted Kelley relief on this claim, the court apparently thought it unnecessary to rule on Kelley's two remaining claims, (2) and (3). Acting pursuant to the September 19 order, the clerk entered a final judgment and closed the case the same day.
On September 30, 2002, the State filed a motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The State supported its motion with two arguments. First, citing Clisby v. Jones,
960 F.2d 925 (11th Cir.1992), the State argued that the district court should have ruled on claims (2) and (3) as well as claim (1). Second, the State argued that the court should revise its disposition of claim (1) to correct clear error and prevent manifest injustice. In the State's view, the court reached its decision only by disregarding important testimony and failing to give due deference to the findings of the state courts.
The district court disposed of the State's motion in an order issued on December 30, 2002. Kelley, 238 F.Supp.2d 1325 (S.D.Fla.2002). Answering the State's second argument first, the court declined to alter or amend its judgment on claim (1). The court agreed with the State, however, that it should have ruled on the two undecided claims.
Turning to claim (2), the court found that Kelley was entitled to habeas relief because his trial counsel was ineffective. The court reasoned that Kelley's defense counsel had "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigation unnecessary [,]" but had met neither obligation. Id. at 1329 (citing Strickland v. Washington,
466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)). In the court's view, Harvey Brower, who was responsible for pretrial investigation, was incompetent, and Kelley's primary defense counsel, Kunstler and Edmund, did not know that Brower had failed them. As the court stated in its order,
Kelley's trial counsel was deficient in having a disbarred attorney, lazy to a fault, resolve whether or not to conduct a pretrial investigation.... [T]rial counsel in the present case acted under the mistaken belief that Brower would perform a dutiful investigation or decide not to investigate after thoughtful consideration.
Id. at 1329. After finding that counsel's performance fell short of the Sixth Amendment's standard for effective assistance of counsel, the court neglected to say how, if at all, counsel's ineffectiveness prejudiced Kelley. The court also failed to mention the other instances of ineffective assistance of counsel that Kelley asserted in his petition.
The court found no merit in claim (3) because Kelley failed to show that the State had acted in bad faith when it destroyed the exhibits introduced into evidence during Sweet's prosecution.
On January 28, 2003, the State initiated the appeal now before us. The appeal calls into question the correctness of the orders the district court entered on September 19, 2002 (granting habeas relief on claim (1)) and December 30, 2002 (granting relief on claim (2)). Kelley does not cross-appeal the district court's denial of claims (3), (4), (5), and (6) or its partial denial of claim (2).
We have jurisdiction over this appeal pursuant to
28 U.S.C. 1291.III.
Federal Evidentiary Hearing
Before proceeding to the merits of the district court's rulings, we first address the question of whether the court abused its discretion in granting Kelley an evidentiary hearing so that he could present evidence to it that was not presented to the state courts. We review a district court's decision to grant or deny an evidentiary hearing for abuse of discretion. See Hall v. Head,
310 F.3d 683, 690 (11th Cir.2002); cf. Mathis v. Zant,
975 F.2d 1493, 1497 (11th Cir.1992) (vacating grant of habeas relief and remanding for cause-and-prejudice hearing where the district court, without identifying its authority to do so and despite respondent's objections, permitted petitioner to develop evidence never presented to the state court). A district court abuses its discretion if it misapplies the law or makes findings of fact that are clearly erroneous. Ambrosia Coal and Constr. Co. v. Morales,
368 F.3d 1320, 1332 (11th Cir.2004) (citations omitted).
A. Legal Standard for Permitting a Federal Evidentiary Hearings
The legal standard for determining the scope of a district court's discretion to hold an evidentiary hearing in a habeas corpus case depends on whether the case is subject to the Antiterrorism and Effect Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). Where AEDPA applies, the standard is articulated in
28 U.S.C. 2254(e)(2). In pre-AEDPA cases, the standard was first set forth in Townsend v. Sain,
372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and clarified in subsequent decisions, including most prominently Keeney v. Tamayo-Reyes,
504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).
Beginning with pre-AEDPA cases, the Supreme Court held in Townsend that district courts are required to grant evidentiary hearings to state prisoners when any of the following six circumstances applies:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
372 U.S. at 313, 83 S.Ct. at 757. The Court emphasized that these six circumstances merely enumerated the cases in which an evidentiary hearings is mandatory. The circumstances in which an evidentiary hearing is authorized were considerably broader. Indeed, the Court indicated that district judges have "discretion" to hold evidentiary hearings in "all" cases, even where the petitioner "was afforded a full and fair hearing by the state court resulting in reliable findings...." Id. at 318, 83 S.Ct. at 760. The Court elaborated,
In every case [the district judge] has the power, constrained only by his sound discretion, to receive evidence bearing up the applicant's constitutional claim. There is every reason to be confident that federal district judges, mindful of their delicate role in the maintenance of proper federal-state relations, will not abuse that discretion.
Id.
Three years after the Townsend decision came down, Congress amended the habeas statute. Among these amendments, Congress established a statutory presumption according deference to state-court factfindings except under eight enumerated exceptions, which roughly paralleled Townsend's tests for determining when district courts must grant an evidentiary hearing. Where none of these exceptions applied, the amended statute increased the burden petitioners had to meet to override state factfindings. Where state factfindings were presumed correct, the petitioner had to establish the state court's error by "convincing evidence"; where state factfindings were not presumed correct (because one of the statute's exceptions applied), the petitioner had to establish the facts necessary to support his claim by only a preponderance of the evidence. Keeney, 504 U.S. at 20, 112 S.Ct. at 1726 (O'Connor, J., dissenting) (quoting Sumner v. Mata,
449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981)). Thus, although district courts still could, within the limits of their "sound discretion," Townsend, 372 U.S. at 318, 83 S.Ct. at 760, grant evidentiary hearings when Townsend's tests were not met, they could not overlook the elevated deference accorded state factfindings unless an exception to the revised statute applied.
In 1992, the Supreme Court revisited the issue of federal evidentiary hearings and overruled Townsend in part. In Keeney, the Court reconsidered the fifth circumstance in which Townsend entitled a petitioner to an evidentiary hearing, namely, when material facts were not adequately developed in the state courts. The Court held that a habeas petitioner is "entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure." Keeney, 504 U.S. at 11, 112 S.Ct. at 1721 (emphasis added). Alternatively, the petitioner is permitted to develop additional facts at the federal level if he could "show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Id. at 12, 112 S.Ct. at 1721. The Supreme Court explained that this rule limiting the availability of federal evidentiary hearings was motivated not only by considerations of judicial economy, but also by those of comity to state courts, accuracy and finality of state court judgments, and consistency in habeas corpus jurisprudence. Id. at 8-9, 112 S.Ct. at 1719-20.
A majority of the Court did not specify whether Keeney's revision of the law defined the conditions in which federal evidentiary hearings were mandatory or, rather, the outer boundaries of when they were permissible. But see id. at 23, 112 S.Ct. at 1727 (O'Connor, J., dissenting) ("[T]he district courts ... still possess the discretion, which has not been removed by today's opinion, to hold [evidentiary] hearings even where they are not mandatory."). We confronted that issue, however, in Mathis v. Zant,
975 F.2d 1493 (11th Cir.1992). There, "the district court, on its own initiative, permitted [the] petitioner to introduce additional evidence to bolster his claim of ineffective assistance of counsel at sentencing by developing and submitting evidence never presented to the state court that first addressed this claim." Id. at 1497. After considering the newly developed evidence, the court granted relief on the ineffective assistance ground. Id. We observed that, despite the respondent's numerous objections, the district court never identified its authority for holding an evidentiary hearing on its own initiative. Id. Consequently, we vacated the district court's judgment and remanded, instructing the court
(1) to articulate its ground or grounds for circumventing the presumption of correctness accorded a state court's factual findings under [pre-AEDPA]
28 U.S.C. 2254(d) by sua sponte permitting petitioner to submit additional evidence on his claim of ineffective assistance of counsel at sentencing, [and] (2) to determine whether petitioner can demonstrate cause and prejudice for failing to present to the state courts the supplemental evidence submitted to the district court....
Id. (citing Keeney, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318).
Arguably, this holding could be narrowly read to require satisfaction of Keeney's cause-and-prejudice test only where a district court elects to hold an evidentiary hearing absent motion of the petitioner. But we later resolved any doubt as to the necessity of applying Keeney's test to all cases in Weeks v. Jones,
26 F.3d 1030, 1043 (11th Cir.1994). There we held unequivocally, "Without a cause and prejudice showing for evidence not submitted to the state court, a habeas petitioner is procedurally barred on federal habeas review just as he is from presenting new claims not previously before the state court." Id. at 1043; see also Mitchell v. Rees,
114 F.3d 571, 577 (6th Cir.1997) (holding that under pre-AEDPA law "a district court abuses its discretion by ordering [an evidentiary] hearing without first requiring the petitioner to make the requisite showing [of cause and prejudice]"). But see Seidel v. Merkle,
146 F.3d 750, 754-55 (9th Cir.1998) (holding that Keeney did not limit the discretion of a district court to hold an evidentiary hearing that is not required by Townsend); Clemmons v. Delo,
124 F.3d 944, 951 (8th Cir.1997) ("Keeney ... addresses only the circumstances under which an evidentiary hearing is required."); Pagan v. Keane,
984 F.2d 61, 64 (2d Cir.1993) (holding that, after Keeney, district courts retain the power to hold evidentiary hearings even though one is not required). Thus, it was settled in this circuit that, after Keeney and before AEDPA, district courts lacked discretion to grant evidentiary hearings to develop facts that a habeas petitioner had failed to develop in state court, unless the petitioner established cause and prejudice or a miscarriage of justice.
The test AEDPA established in 1996 is even more deferential to state courts than the earlier standard:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that ?
(A) the claim relies on ?
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. 2254(e)(2) (emphasis added). Note that, like the Keeney test, the current § 2254(e)(2) is specific to those situations in which an evidentiary hearing is requested to develop facts that the petitioner failed to develop in state court. Note further that AEDPA expressly limits the extent to which hearings are permissible, not merely the extent to which they are required.
B. Application of the Legal Standard to Kelley's Case
Kelley requested an evidentiary hearing in his petition for habeas corpus relief and renewed his request several times thereafter. For example, after AEDPA's enactment in 1996, the court asked the parties to file memoranda briefing AEDPA's effects on the ongoing proceeding. Kelley's memorandum argued that AEDPA's amendments to § 2254, and § 2254(e) in particular, do not apply to this case, and it urged the court to honor Kelley's previous demand for a hearing. The State took the opposite position and specifically noted that the amended § 2254(e) limits the availability federal evidentiary hearings.
On April 23, 1997, Kelley, acting under the impression that the court had ordered an evidentiary hearing "for some time during the period of May 12 to May 23, 1997," moved the court for leave to issue subpoenas requiring several witnesses to appear at the federal government's expense to testify in support of his claims. The State filed a response on April 30, contending that a hearing should not be held. The State protested that Kelley had not shown "(1) cause for, and prejudice from, the failure to develop such facts, or (2) that a federal evidentiary hearing is necessary to prevent a fundamental miscarriage of justice."
On May 27, 1997, Kelley filed a pretrial memorandum outlining several avenues along which he hoped to develop additional facts to support his claims. Ultimately, the memorandum asked the court to convene a hearing to receive Kelley's new evidence. In the alternative, Kelley asked for a hearing to argue that the court could receive that evidence because he had cause for his failure to present it to the state courts and resulting prejudice.
On August 26, 1997, the court heard argument of counsel on the question of whether to hold an evidentiary hearing. At a status conference held on December 15, 1998, the court indicated its inclination to hold an evidentiary hearing in both Ft. Pierce and Boston, where it could receive the testimony of witnesses located in that vicinity and alleviate concerns about the cost of transporting many of Kelley's witnesses. The State protested again:
MS. DITTMAR: [Y]our Honor, I feel like I need to reiterate the respondent's position that there just is no reason ?
THE COURT: I know what your position is; that you don't think it necessary.
MS. DITTMAR: That is correct, your Honor.
THE COURT: I feel under all of the circumstances that the better course is to have the hearing.
MS. DITTMAR: Your Honor, I am not sure what circumstances those are. I am not aware of any capital case in Florida where there has been a federal evidentiary hearing after there has been a full and fair hearing in State Court. And I just don't understand the legal basis for having any of these witnesses give testimony at this point.
THE COURT: Well, that is not the kind of new ground I would like to break. And I promise you I will review it one more time before I take any, set the wheels in motion with the Administrative Office.
The court deferred its final ruling on the evidentiary hearing issue until November 22, 2000, when in a telephone conference with counsel, it resolved to hold a hearing on Kelley's remaining habeas claims. The State emphasized that it had "a continuing objection to holding the hearing at all." Over that objection, the court decided that the hearing would begin the next spring in Boston.
The State persisted in its opposition to the hearing. On December 11, 2000, for instance, the State once again objected to having a hearing; alternatively, it moved the court to limit the scope of the hearing, contending that it should be limited only to Kelley's claims of ineffective assistance of counsel during the penalty phase of Kelley's trial.
On December 29, 2000, the court entered an order scheduling the evidentiary hearing to commence in Boston on April 24, 2001.
On March 21, 2001, the state filed written objections to Kelley's list of proposed witnesses. Once again, it reiterated its opposition to the course the court was taking:
Petitioner has failed to demonstrate any cause or prejudice for his failure to present these witnesses at his state court postconviction evidentiary hearing. Absent such cause and prejudice, this additional evidence should not be presented.... Since the Petitioner has not offered any justification for his failure to present this evidence when he was granted the opportunity to do so in state court, he is precluded from offering it at his federal evidentiary hearing.
The court did not address the State's December 11, 2000, motion to limit the scope of the evidentiary hearing until March 18, 2002. Because the hearing had already been held at that point and, indeed, had concluded almost a year earlier, the court denied the State's motion as moot.
In our view, the district court abused its discretion in granting the evidentiary hearing. First, the court failed to determine the appropriate legal standard for measuring its discretion to grant the hearing. Second, despite the State's continuous objections to the hearing, the court failed to acknowledge and apply any legal constraint on its discretion at all. We elaborate on these points below.
1. The District Court's Failure to Ascertain the Appropriate Legal Standard
Determining the test to be applied in this case ? AEDPA's or the pre-AEDPA standard ? is a difficult question that cannot be resolved on this record. The district court and the litigants uncritically agreed that the pre-AEDPA cause-and-prejudice test applied. Although it is true that Kelley filed his habeas petition prior to AEDPA's enactment, the possibility of retroactive application complicates our analysis.
The Supreme Court addressed the extent of AEDPA's retroactive application in Lindh v. Murphy,
521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The Court noted that AEDPA amended portions of Title 28, Chapter 153 of the United States Code, which involves habeas corpus proceedings generally. Section 2254(e)(2), which contains the updated limitations on federal evidentiary hearings, was among the amended provisions in that chapter. AEDPA also "creates an entirely new chapter 154, with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provision for appointment of postconviction counsel in state proceedings." Id. at 327, 117 S.Ct. at 2063. AEDPA specifically provided that chapter 154, which pertains only to capital cases, "shall apply to cases pending on or after the date of enactment of this Act." AEDPA § 107(c), 110 Stat. at 1221 (codified as note to
28 U.S.C. 2261). Because the statute contained no similar indication about the reach of the amendments to chapter 153, the Supreme Court concluded that AEDPA's text fairly implies "that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective." Lindh, 521 U.S. at 336, 117 S.Ct. at 2068.
Although AEDPA's pertinent provision, § 2254(e)(2), is contained in nonretroactive chapter 153, its restrictions might still apply to Kelley through chapter 154, which is retroactive and at least potentially applicable. Importantly, chapter 154 incorporates parts of chapter 153 by reference; it expressly provides, for instance, that district courts must rule on the claims before them "subject to subsections (a), (d), and (e) of section 2254 [.]"
28 U.S.C. 2264(b) (emphasis added). The Supreme Court noted that where retroactive chapter 154 applies and incorporates parts of chapter 153 by reference, it renders those portions of AEDPA retroactive for its limited purposes. As the Court explained, "[W]hen a pending case is also an expedited capital case subject to chapter 154, the new provisions of §§ 2254(d) and (e) will apply to that case[,]" even though those sections are nonretroactive without the help of chapter 154. Lindh, 521 U.S. at 335, 117 S.Ct. at 2067; see also id. at 326, 117 S.Ct. at 2063 ("The statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases)" (emphasis added)).
Kelley's habeas petition was pending when AEDPA became effective; thus, AEDPA's restrictions on federal evidentiary hearings probably extend to his case if chapter 154 applies and makes them retroactive. This conclusion, of course, begs another challenging question: Is chapter 154 applicable? At the broadest level, the chapter, entitled "Special Habeas Corpus Procedures in Capital Cases," applies only to "cases arising under section 2254, brought by prisoners in State custody who are subject to a capital sentence."
28 U.S.C. 2261(a). Without question, Kelley, unlike the petitioner in the Lindh case, is subject to a capital sentence. More particularly, chapter 154 only applies if the state that sentenced the petitioner meets the criteria of §§ 2261(b) and (c), which involve the appointment and compensation of competent postconviction counsel for the petitioner. At this time, it is not clear whether the state of Florida had satisfied those criteria.
Here, the district court naively assumed that pre-AEDPA law applied. The court reasoned, "[E]xcept for select provisions that Congress explicitly made retroactive, [AEDPA's] amendments apply only to cases filed after the effective date of the amended statute." Kelley, 222 F.Supp.2d at 1361 (S.D.Fla.2002). It concluded, "As Kelley's petition was filed in 1992, and does concern the select retroactive provisions, this court must apply the law as it was prior to the 1996 amendments." Id. The court did not explain why the retroactive provisions of chapter 154 did not concern Kelley's petition. Indeed, it is apparent that the court never considered the possibility that chapter 154 made AEDPA's other provisions retroactive such that they might control the standard for granting an evidentiary hearing in this case.
This issue was not briefed to us, however, and the record lends no insight sufficient to permit us to decide whether chapter 154 extends to Florida such that AEDPA's restrictions on evidentiary hearings should have applied in this case.
2. The District Court's Failure to Apply Any Legal Standard
In any event, the district court clearly abused its discretion by authorizing the hearing. The court compounded its failure to determine the applicable legal standard by neglecting to apply any standard at all.
If AEDPA applied, the court could not have afforded Kelley an evidentiary hearing. The record was, and is, devoid of any indication that Kelley's claims rely either on "new rule of constitutional law, made retroactive to cases on collateral review" or on "a factual predicate that could not have been previously discovered through the exercise of due diligence...."
28 U.S.C. 2254(e)(2)(A). Although it is the nature of Brady claims that the prosecution precludes the defense from obtaining important evidence before trial, we observe no indication that Rule 3.850 counsel were precluded from developing the factual basis for any of Kelley's collateral claims through the exercise of due diligence during the Rule 3.850 proceedings. Nor do we perceive the remotest possibility that the facts supporting the three claims for which the evidentiary hearing was granted "would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found [Kelley] guilty of [murder]."
28 U.S.C. 2254(e)(2)(B).
Even if the district court were correct in its hasty assumption that pre-AEDPA law governed its decision, the court abused its discretion by neglecting to apply the pre-AEDPA test properly.
Kelley, who also assumed that pre-AEDPA law applied, advanced, as he does here, several explanations for why he was entitled to an evidentiary hearing under Townsend. None have merit. He argues that the Rule 3.850 court's factual determinations cannot be presumed correct because the court failed to address "crucial allegations and matter in dispute" and because it made "findings that were clearly unsupported by the record." We cannot agree. In the Rule 3.850 court, Kelley's attorneys placed twenty-six exhibits in evidence and presented the testimony of ten witnesses in support of the Kelley's claims for relief. The court systematically analyzed each of Kelley's claims in a thorough opinion that was ultimately given great deference by the Florida Supreme Court. After reviewing the record of the Rule 3.850 proceedings, we conclude that the court's findings are fairly supported.
Thus, Kelley's only basis for obtaining a federal evidentiary hearing must be that he failed to develop material facts adequately in the Rule 3.850 court. As explained above, the district court had discretion to allow a hearing before AEDPA took effect only if Kelley could satisfy Keeney's test of cause and prejudice or miscarriage of justice. The court erroneously neglected to apply this standard. Indeed, although the court voiced its view that the hearing was necessary, the record is barren of any indication as to why it concluded that a hearing was permissible.
Because it failed properly to apply Keeney and our subsequent precedent, the district court has deprived us of a record basis for deciding whether Kelley established cause and resulting prejudice for his failure to develop the factual bases for his claims in the Rule 3.850 court. In oral argument in this appeal, Kelley's attorney agreed that the district court failed to make findings of cause and prejudice. In fact, he contended that this court could not make a cause-and-prejudice determination on the record as its stands, and that if we conclude that the district court erred in granting Kelley an evidentiary hearing, we should remand the case to the district court to permit Kelley to show the cause and prejudice that warranted the district court's decision to hold an evidentiary hearing.
Even so, we observe from what is before us that Kelley would have faced great difficulties in satisfying Keeney's test. To show cause, Kelley had to prove that some impediment external to the decisions of his Rule 3.850 counsel prevented him from first presenting to the state court the evidence he introduced in the hearing in the district court. See Murray v. Carrier,
477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986). Three of the eleven witnesses Kelley called to the stand before the district court testified to events that occurred in Kelley's presence. If Kelley now hangs his "cause" hat on Brower's insufficient pretrial investigation, we are baffled as to why Kelley required an investigator at all to discover these witnesses. Furthermore, the record reveals no hint that Kelley was incapable of fully developing his collateral claims in the Rule 3.850 court. Kelley's failure to present evidence to that court must not be confused with his inability to develop certain evidence at the second trial. For example, although prosecutorial misconduct might have created cause for defense counsel's failure to present certain evidence at trial, the record before us yields no indication that similar misconduct impeded counsel from presenting to the Rule 3.850 court the evidence they introduced (for the first time) at the federal hearing. By the same token, although trial records rarely reflect a complete account of an attorney's ineffectiveness, there is no apparent reason why Kelley should not have known the extent of trial counsel's shortcomings by the time he filed his Rule 3.850 motion for collateral relief.
Kelley would also be hard-pressed to demonstrate any prejudice for failing to develop the new evidence that was not properly presented to the state court. If Kelley was prejudiced by such failure, it must be because he either (1) would have prevailed on a claim he asserted had he introduced the new evidence with it, or (2) would have prevailed on a claim he never asserted at all.
Kelley cannot establish the latter circumstance. To raise an unexhausted claim for the first time in a federal habeas corpus proceeding, the petitioner must first establish cause and prejudice or miscarriage of justice for failing to exhaust the claim in state court. See, e.g., Bailey v. Nagle,
172 F.3d 1299, 1302 (11th Cir.1999) (citations omitted). This is a one-time requirement. If the petitioner meets it successfully, he can go forward and develop the claim's factual basis; if he does not, the claim is barred and the issue of factual development is moot. As we explain below, the district court improperly granted Kelley relief on an unexhausted instance of his ineffective assistance of counsel claim. See supra Part IV.A. Because that instance of Kelley's claim was not presented to the state courts, it was procedurally defaulted. Kelley obviously could not have been prejudiced in the district court by his failure to develop evidence in the Rule 3.850 court for a claim he can no longer raise.
Kelley would also have difficulty establishing prejudice from Rule 3.850 counsel's failure to present the new evidence supporting the claims he did exhaust. The district court correctly denied claims (4), (5), and (6) as a legal matter. Kelley, No. 92-14246 at 29 (S.D.Fla. Aug. 31, 2000). Additional evidence could not have enhanced these claims. The court rejected claim (3) on the ground that the State did not deny Kelley due process by destroying certain evidence after Sweet's second trial because the State had not done so in bad faith. Kelley, 238 F.Supp.2d at 1329 (S.D.Fla.2002). Kelley's new evidence had nothing whatsoever to do with the State's intentions surrounding the destruction of the evidence. Thus, that evidence could not have enhanced that claim. Furthermore, for reasons we discuss below, see infra Part IV.B, Kelley's Brady claims fail for lack of legal materiality. No amount of additional evidence can revive a claim that is legally insufficient.
That leaves us with Kelley's ineffective assistance claims. The evidence Kelley presented to the district court shed little light on the instances of his ineffective assistance claim that had been exhausted and, therefore, were preserved for federal review. Most of the new evidence appears relevant primarily to the procedurally barred claim that Kelley's conviction might not have resulted had defense counsel not relied on Brower to conduct the pretrial investigation. Even if the claim were not barred, we have serious doubt that new evidence of Brower's incompetence justified the granting of habeas relief. After all, Kelley's counsel had well over a month after Brower's disappearance to conduct further research for Kelley's second trial if such research were necessary. Furthermore, Kelley's counsel testified that their decision to rest without putting on a defense was a matter of calculated trial strategy. See infra note 34.
All of this said, we need not remand the case, as we did in Mathis, 975 F.2d at 1497, to enable the petitioner to show cause and resulting prejudice for his failure to present his new evidence to the Rule 3.850 court. As we explain in Part IV, Kelley would not qualify for habeas relief as a matter of law even if the additional evidence were admitted and properly weighed.
IV.
Rulings on Habeas Claims
Having decided that the district court abused its discretion by granting the evidentiary hearing without applying the proper legal standard, we turn to the relief it granted. The court granted habeas relief on claim (1) for five Brady violations, and claim (2) for ineffective assistance of trial counsel. We address these rulings in reverse order. As indicated supra, neither claim has merit with or without the evidence Kelley presented to the district court.
A. Ineffective Assistance of Counsel
The district court granted Kelley habeas relief for ineffective assistance on the ground that "Kelley's trial counsel was deficient in having a disbarred attorney, lazy to a fault, resolve whether or not to conduct a pretrial investigation." Kelley, 238 F.Supp.2d at 1329 (S.D.Fla.2002). Kelley defaulted this claim by failing to present it to the Rule 3.850 court. Therefore, the district court should have dismissed it. Even if the claim were preserved, however, it should have failed.
1. The Exhaustion Requirement
Habeas petitioners generally cannot raise claims in federal court that were not first exhausted in state court. See, e.g., Snowden v. Singletary,
135 F.3d 732, 735 (11th Cir.1998). To properly exhaust a claim, "the petitioner must afford the State a full and fair opportunity to address and resolve the claim on the merits." Keeney, 504 U.S. at 10, 112 S.Ct. at 1720. It is not sufficient merely that the federal habeas petitioner has been through the state courts, Picard v. Connor,
404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state-law claim was made, Anderson v. Harless,
459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citations omitted). The petitioner must present his claims to the state courts such that they are permitted the "opportunity to apply controlling legal principles to the facts bearing upon (his) constitutional claim." Picard, 404 U.S. at 277, 92 S.Ct. at 513 (alteration in original).
Thus, the prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief. For example, habeas petitioners may not present particular factual instances of ineffective assistance of counsel in their federal petitions that were not first presented to the state courts. Footman v. Singletary,
978 F.2d 1207, 1211 (11th Cir.1992). As we explained,
allowing a habeas petitioner to allege a single instance of ineffective assistance in his state post-conviction proceedings and then proceed to federal court to allege additional instances would be contrary to the state's "full and fair opportunity to address the claim on the merits." The state would never have the benefit of evaluating the claim using a fully developed set of facts. This would not be the "serious and meaningful" exhaustion of claims that Congress intended.
Id.; see also Carriger v. Lewis,
971 F.2d 329, 333 (9th Cir.1992) (en banc) (holding that, where the habeas petitioner properly raised only one ineffective assistance claim on collateral attack in state court, he could seek federal relief based on that specific claim, but not based on other alleged attorney defects that were not presented to the state courts); Maynard v. Lockhart,
981 F.2d 981, 984-85 & n. 1 (8th Cir.1992) ("To preserve an allegation of ineffective assistance for federal habeas review, a petitioner must present that specific allegation to a state court."). Furthermore, habeas petitioners cannot preserve otherwise unexhausted, specific claims of ineffective assistance merely by arguing that their lawyers were ineffective in a general and unspecified way. See Weeks, 26 F.3d at 1044-46 (rejecting petitioner's argument that "the general claim of ineffective assistance in state court preserves for federal review all alleged instances of ineffectiveness, regardless of whether evidence of a particular act was presented to the state court"). In sum, to preserve a claim of ineffective assistance of counsel for federal review, the habeas petitioner must assert this theory of relief and transparently present the state courts with the specific acts or omissions of his lawyers that resulted in prejudice.
Federal habeas petitioners are undoubtedly on their strongest footing with regard to the exhaustion requirement when their federal claims are carbon copies of the claims they presented to the state courts. Such reproduction leaves no question that the claims presented to the federal court are the same as those that were presented to the state court. But we do not demand exact replicas. We recognize that habeas petitioners are permitted to clarify the arguments presented to the state courts on federal collateral review provided that those arguments remain unchanged in substance.
We are not so draconian or formalistic as to require petitioners to give a separate federal law heading to each of the claims they raise in state court to ensure exhaustion for federal review. We simply require that petitioners present their claims to the state courts such that the reasonable reader would understand each claim's particular legal basis and specific factual foundation. See Picard, 404 U.S. at 277, 92 S.Ct. at 513. As the First Circuit observed,
[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.
Martens v. Shannon,
836 F.2d 715, 717 (1st Cir.1988).
To ensure exhaustion, petitioners must present their claims in this manner of clarity throughout "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel,
526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). As long as state supreme court review of a prisoner's claims is part of a state's ordinary appellate review procedure, prisoners of that state must present their claims to the state supreme court to preserve those claims for federal review, even if review by that court is discretionary. See id. at 848-49, 119 S.Ct. at 1734.
The habeas petitioner can escape the exhaustion requirement only by showing cause for the default and actual prejudice resulting therefrom, or by establishing a fundamental miscarriage of justice. Bailey, 172 F.3d at 1306 (citing Murray v. Carrier,
477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Schlup v. Delo,
513 U.S. 298, 324-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Absent the applicability of these exceptions, nonexhausted claims cannot be raised in federal habeas corpus petitions.
We review a district court's determination as to whether a habeas petitioner is procedurally barred from raising a claim in federal court de novo. Lusk v. Singletary,
112 F.3d 1103, 1105 (11th Cir.1997).
2. Application of the Exhaustion Requirement to Kelley's Case
Kelley's Rule 3.850 motion cited seven specific instances of ineffective assistance of counsel. First, the motion contended that Kelley's trial counsel, Kunstler and Edmund, were ineffective because "they failed to thoroughly review" certain materials obtained by Rule 3.850 counsel that could have been used "to determine the full extent of the evidence destroyed in 1976," after John Sweet's second trial.
Second, the motion argued that Kunstler and Edmund were ineffective because they failed to object to the expert testimony of three of the State's expert witnesses and stipulated to the testimony of a fourth expert. These witnesses testified about the destroyed evidence, and Kelley's Rule 3.850 counsel reasoned that they could not be cross-examined effectively because that evidence was not in existence at the time of Kelley's trial.
Kelley's third theory of ineffective assistance contained a hodgepodge of grievances, all of which fell under the banner of "Failure to Develop Defense Theories." The gravamen of this claim was that Kunstler and Edmund made a series of missteps that undermined the defense's two key theories: first, that the person who registered at the Daytona Inn Motel around the time of the murder, although using Kelley's name, was not actually defendant William Kelley; and second, that John Sweet executed the murder himself without the assistance of hired assassins. Kelley's Rule 3.850 counsel argued that his trial counsel should have more adroitly resisted the State's effort to link Kelley to the motel. Along these lines, the Rule 3.850 motion specifically faulted Kelley's trial counsel for failing "to adduce evidence that the handwriting on the motel's registration record was not the defendant William Kelley's handwriting, a fact that the defendant had made known to defense counsel." It faults trial counsel for stipulating that the car registered at the motel belonged to Jennie Adams, who had been seen with Kelley from time to time and was his girlfriend. Additionally, the motion contended that trial counsel should have attempted to show that descriptions of the women who accompanied the man registered under Kelley's name at the motel did not match the appearance of Jennie Adams.
In this same section, the motion asserts that Edmund performed deficiently in his cross-examination of Kaye Carter, the daughter of a clerk at the motel. In the first place, Edmund failed to differentiate between Kelley and the supposed imposter who used Kelley's name at the motel. This blunder, Rule 3.850 counsel insisted, reinforced the State's devastating contention that the men were one in the same. Secondly, Edmund did not use cross-examination to suggest that the man registered under Kelley's name could have actually been Steve "the Greek" Busias, a person from Kelley's neighborhood who allegedly matched physical characteristics of the man at the motel, as described by Carter. The motion stressed that Edmund even stated at one point that Kelley, rather than the theoretical imposter Kelley, registered the car matching Jennie Adams's license plate at the Daytona Inn.
The Rule 3.850 motion also posited other specific deficiencies related to Kelley's third ineffective assistance claim: the broad "Failure to Develop Defense Theories." It contended, for instance, that defense counsel should have more carefully researched the weather and daylight conditions at the time of the murder. Carter testified that the man registered as Kelley arrived at the motel before 8:30 P.M. on the night of the murder. One of the victim's neighbors, however, testified that she saw two people leaving the victim's home, driving the victim's car with the lights on. Kelley's Rule 3.850 counsel theorized that the late time of sunset on the day of the murder would have made it improbable that the killers drove from the victim's house in Sebring after twilight and reached the motel in Daytona before 8:30 P.M. Yet another line of argument involves comments Kelley made to FBI Agent Ross Davis at the time of arrest, which tended indicate Kelley's knowledge of the murder. On this subject, the motion faulted Kelley's trial counsel for failing to present copies of a 1981 news story about the murder during Davis's cross-examination.
Most significantly, this same third ineffective assistance claim asserted that "defense [counsel] failed to develop facts and interview witnesses to support its `wrong William Kelley' defense." Purportedly, many witnesses would have been available to testify that Kelley's appearance at the time of the murder differed from that of the man Sweet described as a triggerman.
The remaining claims of ineffective assistance of counsel are less important for purposes of this appeal. The fourth instance cited by the motion involved comments Edmund made during the jury-selection voir dire alluding to Kelley's prior criminal conduct. The fifth instance faulted defense counsel for failing to object to the Allen charge given to the jury. The sixth instance complained that Kelley's defense was ineffective in impeaching John Sweet's credibility and found specific fault with counsel's failure to object when the court declined to answer a question the jury submitted during deliberations about whether Sweet received immunity in Florida for his testimony against Kelley. Finally, the Rule 3.850 motion cited as a seventh instance of ineffective assistance Kunstler and Edmund's failure to request a change of venue.
Kelley's brief to the Florida Supreme Court appealing the denial of Rule 3.950 relief cast Kelley's ineffective assistance of counsel claims in substantially similar terms.
By the time he sought federal habeas relief, however, many of Kelley's ineffective assistance claims had assumed a strikingly different hue. At the broadest level, Kelley's federal petition asserted ineffective assistance of counsel for "failure to investigate, to depose witnesses, to present a case in defense, and to perform other basic defense functions." The district court ably distilled Kelley's claims down to the following distinct instances of ineffective assistance of counsel:
(1) the unreasonable failure to investigate and to present evidence on behalf of Kelley; (2) the failure to take pretrial depositions and to seek a more fair trial venue; (3) the failure to impeach, confront, and rebut the state's case; (4) the failure to make an effective closing argument and to object to improper closing argument by the state; and (5) the failure to provide reasonably effective assistance with regard to the submission of proposed jury instructions.
Kelley, 238 F.Supp.2d at 1327 (S.D.Fla.2002)
As noted above, the district court granted Kelley relief for the first of these instances of ineffective assistance of counsel: defense counsel's failure to investigate. This decision rested almost exclusively on defense counsel's reliance on disbarred Harvey Brower for handling the pretrial investigation. On the basis of the Supreme Court's decision in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court reasoned that Kelley's counsel were ineffective unless they either conducted a reasonable investigation or made a reasonable decision not to investigate. Id. at 691, 104 S.Ct. at 2066 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.") Applying this test, the court found that
neither Kunstler nor Edmund made the decision not to investigate. They mistakenly assumed that Brower, the disbarred attorney/investigation, would conduct his investigation in a conscientious manner. Ultimately, however, Brower failed to perform an investigation, and his failure to present the findings of a pretrial investigation or to file any pretrial motions effectively provided Kelley with ineffective counsel. Therefore, Kelley's trial counsel was deficient in have a disbarred attorney, lazy to a fault, resolve whether or not to conduct a pretrial investigation.
Kelley, 238 F.Supp.2d at 1329 (S.D.Fla.2002). Although it identified them, the district court remarked no further on the remaining instances of ineffective assistance Kelley raised in his petition.
We conclude that the district court should have dismissed Kelley's ineffective assistance claim based on counsels' failure to investigate. After careful analysis of the record, we are confident that Kelley has presented no claim to the Rule 3.850 court that fairly notified the State that he intended to challenge his conviction on the ground that his attorneys were constitutionally deficient in their duty to investigate or because they relied on Harvey Brower for this chore. This ineffective assistance claim was not merely a clarified rendition of an exhausted claim, but a new claim altogether.
Kelley's broad Rule 3.850 claim concerning the "Failure to Develop Defense Theories" is the most similar, by far, to the ineffective assistance claim upon which the district court granted relief. Yet the two claims are clearly distinct, in form and in substance. The former, exhausted claim assailed Kelley's trial counsel for failing to develop and even undermining its core theories that Sweet performed the murder unassisted or that the defendant was not the person who registered at the Daytona Inn Motel under Kelley's name. In its brief to the Florida Supreme Court, Kelley's counsel summarized the claim (as also set out in the supplemental brief Kelley filed in appealing his conviction to the Florida Supreme Court) as follows:
Mr. Kelley's trial attorneys' lack of effectiveness was so plain that appellate counsel sought to present the claim on direct appeal. They failed to investigate, develop, or present readily available evidence that would have supported their own defense theories while presenting the jury with incomprehensible comments which gutted their own theory and which can be supported by no reasonable tactic.
This claim most closely approached the distinct, unexhausted claim that prevailed in the district court when Kelley argued to the Florida Supreme Court,
[B]y virtue of defense counsel's incompetence, the jury was presented with only one version [of the facts]: the defendant William Kelley had been registered at the Daytona Inn on the days surrounding the murder of Maxcy, just as John Sweet had testified. This version, however, was far from accurate, and counsel had the tools with which they could have shown the jury the inaccuracy. Without a reason, they simply failed to investigate and thus failed to develop or use the tools that they had.
The Rule 3.850 court and, eventually the Florida Supreme Court, carefully distilled Kelley's broad "failure to develop defense theories" claim into seven specific grievances:
1. Counsel failed to adduce evidence that the handwriting on the motel registration record was not the defendant's....
2. Counsel stipulated to the State's evidence linking the Mr. and Mrs. William Kelley registered at the Daytona Inn Motel to the motor vehicle owned by Jennie Adams....
3. Counsel failed to point out the distinctions between the man at the Daytona Inn Motel, as described by Kaye Carter, and the defendant....
4. Counsel failed to investigate and utilize the inconsistencies in the time periods on the evening of the murder....
5. Counsel failed to interview and call witnesses to testify regarding the defendant's physical characteristics in 1966....
6. Counsel failed to obtain and present evidence (newspaper articles) which would explain the defendant's knowledge of the Maxcy killing when he was arrested....
7. Counsel failed to obtain affidavits and present testimony from three attorneys that the defendant contacted them to determine if there was a warrant for the defendant's arrest.
Kelley, 569 So.2d at 759-60. Clearly, the Florida courts comprehended in these arguments no intimation that Kelley's defense counsel flouted their general duty to investigate or, alternatively, decide not to investigate by relying on Brower for this aspect of the trial preparation. The State did not divine this argument either, and, consequently, its own brief to the Florida Supreme Court articulated no rebuttal to the novel claim that prevailed in the district court.
The silence of the supreme court and the State in this regard is unsurprising. Nowhere in the portion of Kelley's brief asserting ineffectiveness for the failure of his counsel to develop defense theories did Kelley mention Harvey Brower. Indeed, in all 101 pages of Kelley's brief to the state supreme court, Brower's name appears only twice, both times in a single paragraph:
Other noteworthy and telling matters came to light at the [Rule] 3.850 hearing. Harvey Brower, a disbarred attorney, did much of the investigation and preliminary legal work prior to Mr. Kelley's first trial. Apparently, Mr. Brower supplied a list of names and addresses of potential witnesses to the defense, and the defense learned that the addresses listed were incorrect ? they did not represent actual addresses.
This paragraph ? unique in its mention of Brower ? appears not in a discussion of trial counsel's investigatory dereliction, but rather in the course of Kelley's separate evidentiary argument that the Rule 3.850 court erred by excluding from evidence an unsigned affidavit regarding Edmund's effectiveness.
In stark contrast to his brief to the Florida Supreme Court, Kelley's federal habeas petition expends almost seventeen pages arguing that his trial counsel were ineffective for their "unreasonable failure to investigate." Each of these pages is devoted almost exclusively to criticizing counsel for their reliance on Brower. Indeed, the very first sentence of the section reads,
Virtually all pretrial matters were delegated to the incompetent hands of one Harvey Brower, a Massachusetts former lawyer and federal felon who was disbarred in 1979 for defrauding a former nun out of $11,400 in phony stock shares and a loan to a non-existent third party.
Throughout this extensive argument, Kelley cites repeatedly to four appended materials: two Massachusetts judgments, one in which Brower was censured and another in which he was disbarred; and two affidavits of Massachusetts attorneys who attested to Brower's incompetence or irresponsibility. Tellingly, these exhibits were never presented to the state courts. We conclude that this earlier omission was no oversight; the appended materials appear for the first time before the district court because the federal proceeding marked the first appearance of Kelley's claim that his defense counsel denied him a constitutional right by relying on Brower to conduct their pretrial investigation.
Our concerns for comity, judicial efficiency, and fairness to the respondent preclude us from finding that the ineffective assistance claim that prevailed in the district court was properly exhausted. Recharacterizing the claim Kelley presented to the Rule 3.850 court at this late hour as a challenge to the counsel's reliance on Brower for pretrial investigation would "fundamentally alter the legal claim[s] already considered by the state courts" such that we could not consider the restated claim as exhausted. Vasquez v. Hillery,
474 U.S. 254, 260, 106 S.Ct. 617, 622, 88 L.Ed.2d 598 (1986). And what we cannot achieve by such recharacterization, neither can we achieve by sewing disjointed factual snippets scattered throughout the Rule 3.850 record into a patchwork federal claim. At the very most, Kelley's singular reference to Brower in his brief to the Florida Supreme Court brief amounts to a "needle[ ] in the haystack of the state court record." Martens, 836 F.2d at 717. Kelley's other Rule 3.850 claims and other instances of ineffective assistance come nowhere near shouting distance of the issue upon which the district court granted relief.
Our finding of procedural default is in no way disturbed by the fact that Brower's antics were discussed to some degree on the record during the Rule 3.850 hearing. This discussion was not sufficient to "afford the State a full and fair opportunity to address and resolve the claim on the merits." Keeney, 504 U.S. at 10, 112 S.Ct. at 1720. By the time of the hearing, the State could not have prepared for or presented evidence to rebut the argument that defense counsel were deficient in relying on Brower. Moreover, even if the evidence Kelley put on at the Rule 3.850 hearing would have supported a finding of ineffective assistance on this then-unasserted instance of that claim, Kelley would not have satisfied the exhaustion requirement. "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Harless, 459 U.S. at 6, 103 S.Ct. at 277 (citations omitted). To exhaust the claim sufficiently, Kelley must have presented the state court with this particular legal basis for relief in addition to the facts supporting it.
Our conclusion also withstands Kelley's unpersuasive argument that the State waived the requirement of exhaustion. Although prior to AEDPA's enactment, this court held that "the State may waive exhaustion either expressly or impliedly," we explained that such waiver occurs "[w]hen the State has not raised lack of exhaustion in the district court or on appeal...." Atkins v. Attorney General of State of Ala.,
932 F.2d 1430, 1431 (11th Cir.1991) (citations omitted). In this case, the State pled lack of exhaustion in the district court and in its brief to us. Accordingly, exhaustion remains very much a viable issue.
Because Kelley's petition contains both exhausted and nonexhausted claims, it is a classic "mixed petition." Ordinarily, "a district court must dismiss such `mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Rose v. Lundy,
455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). Rose informed petitioners that they could no longer withhold collateral claims from their state court petitions in the hope that the district court would entertain them on the merits.
Dismissing a mixed petition is of little utility, however, when the claims raised for the first time at the federal level can no longer be litigated on the merits in state court because they are procedurally barred. In such a case, requiring the petitioner to return to state court only to make a futile application for relief simply delays the federal courts' adjudication of his petition. As we observed in Snowden v. Singletary, 135 F.3d at 736 (citations and footnotes omitted),
when it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, we can forego the needless "judicial ping-pong" and just treat those claims now barred by state law as no basis for federal habeas relief.... [W]here all the unexhausted claims are procedurally barred from being considered in Florida courts, it would serve no purpose to dismiss the petition for further exhaustion because review of those claims is unavailable in state courts.
Without question, the Florida courts will no longer entertain on the merits of the claims Kelley has asserted for the first time in the instant petition. See, e.g., Aldridge v. State, 503 So.2d 1257, 1258 (Fla.1987) (holding that a state prisoner is procedurally barred from raising on a second motion for postconviction relief "somewhat different facts to support his ineffective-assistance-of-counsel claim"). Clearly, Kelley could demonstrate no cause for not having raised the Brower-related instance of ineffective assistance of counsel in the Rule 3.850 proceeding. There was no conceivable impediment to raising it. Consequently, we can address Kelley's remaining claims, rather than remanding the case to the district court with the instruction that it dismiss Kelley's petition.
3. Kelley's Lack of Prejudice from Ineffective Assistance
Although Kelley's procedural default obviates any need to reach the merits of his ineffective assistance claim, we pause briefly to voice our serious skepticism that counsel's reliance on Brower for pretrial investigation could have amounted to a violation of Kelley's rights.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. More specifically, we have held that
[t]o succeed on a claim of ineffective assistance, Petitioner must show both incompetence and prejudice: (1) "[P]etitioner must show that `counsel's representation fell below an objective standard of reasonableness,'" and (2) "[P]etitioner must show `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"
Chandler v. United States,
218 F.3d 1305, 1312-13 (11th Cir.2000) (quoting Darden v. Wainwright,
477 U.S. 168, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986)) (alterations in original).
Unfortunately, the district court did not find ? explicitly or implicitly ? that Kelley suffered prejudice as a result of counsel's performance. Recognizing this deficiency in the district court's order, Kelley's attorneys moved the court for clarification on this issue on January 6, 2003:
[I]n an abundance of caution, Petitioner respectfully suggests that further specificity regarding the Strickland prejudice prong might be warranted in order to minimize the risk that the Court of Appeals might misunderstand this Court's determination and either might (a) fail to recognize that this Court had indeed made the requisite finding under the "prejudice prong" of Strickland, or might (b) assume that the finding had been made but harbor some uncertainty regarding the basis on which it had been made.
The district court denied the motion for clarification in an order entered on January 8, 2003.
This denial is not surprising. Prejudice would be difficult, if not impossible, to find on this record. Kelley had two trials, and Brower's services were employed only for the first. Obviously, Kelley's conviction resulted from the second trial. By the second trial, Kelley's defense team was well aware of what the State's case would look like, since the State had revealed its hand during the first trial, and the defense team had a transcript of the testimonies of the State's witnesses. Furthermore, the nearly two months that passed between the aborted first trial and the commencement of the second trial ? after Brower's inadequacy had been exposed ? afforded defense counsel ample time to locate potential defense witnesses and conduct further investigation. According to both of Kelley's trial lawyers, defense counsel did just that. Edmund testified that he and Kunstler sent an attorney to New England after the first trial to corroborate evidence of Sweet's questionable character and to find favorable evidence about Kelley's character. Kunstler's testimony is even more illuminating. During Kelley's state Rule 3.850 hearing, Kunstler was asked,
During the interim between the first trial and the second trial, did you and Mr. Edmund sit down and discuss: Well, this is how the first trial went; now we knew what the evidence is, what the witnesses are, let's do this or let's do that, let's change some things for the second trial?
Kunstler answered, "We did. I don't know if we did it in person. We had a lot of telephone calls. And since Brower had vanished from the face of the earth, Jack [Edmund] had his own investigator from his office. And he put his own investigator to work." Finally, Kelley's attorneys repeatedly testified that they decided against putting on evidence at trial as a matter of strategy, which afforded the defense both the first and last closing arguments to the jury at the end of the day. We must be highly deferential to such strategic decisions of counsel. As the Supreme Court instructed, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quotation marks and citation omitted); see also Waters v. Thomas,
46 F.3d 1506, 1518-19 (11th Cir.1995) (en banc) (observing that "[w]e cannot, and will not, second guess" the "strategic decisions trial counsel are called upon to make"). In sum, the mistrial gave defense counsel two important benefits: (1) a transcript of the State's case, and (2) an additional opportunity to conduct the investigation Brower neglected. Because counsel made full use of these benefits and because they would likely have declined as a matter of trial strategy to give up the right to make the first and last closing arguments so that they could call some of the witnesses who testified at the federal evidentiary hearing, we cannot agree that Brower's inadequate investigation prejudiced Kelley's defense.
B. Prosecutorial Misconduct
1. The Brady Rule
The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). As the Supreme Court later clarified, there are three components of a true Brady violation: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). Evidence is material so as to establish prejudice only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley,
473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Of course, Brady and its progeny apply only to evidence possessed by the prosecution team, which includes both investigative and prosecutorial personnel. United States v. Meros,
866 F.2d 1304, 1309 (11th Cir.1989).
An alleged Brady violation presents a mixed question of law and fact, which we review de novo. Wright v. Hopper,
169 F.3d 695, 701 (11th Cir.1999).
2. Application of the Brady Rule to Kelley's Case
The Rule 3.850 court, and the Florida Supreme Court on appeal, rejected Kelley's Brady claims on the merits. The district court disagreed with the state courts' rulings and concluded that Kelley was entitled to relief on the claims he had presented to the Rule 3.850 court. The district court, relying on the evidence presented to the Rule 3.850 court and at the federal evidentiary hearing, found that five items of withheld evidence were exculpatory. It further found that the State had materially prejudiced Kelley's defense by withholding those items. The five withheld items include
(1) a Massachusetts immunity order, indicating that Sweet received immunity from that state on March 13, 1981;
(2) The Florida Department of Law Enforcement Investigative Report authored by Agent Joe Mitchell, dated February 21, 1981;
(3) the transcript of Sweet's first trial;
(4) the second of two police reports authored by Special Agent Roma Trulock, reflecting observations of witness Kaye Carter; and (5) a fingerprint report, constructed from prints at the victim's house and car, containing no positive matches to Kelley's prints.
Without identifying particular prejudices, the district court remarked in general terms,
Disclosure of the suppressed evidence to competent counsel would have made a different result much more probable. The essence of the State's case was the testimony of Sweet. Disclosure of his immunity and transcript from his first trial would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense.
Kelley, 222 F.Supp.2d at 1367 (S.D.Fla.2002).
Whether the withheld items the court seized upon in granting Kelley relief are considered individually or collectively, we conclude that Kelley suffered no Brady prejudice as a result of the withholding.
a. The Massachusetts Immunity Order and the Joe Mitchell Report
On March 13, 1981, after being informed that Sweet had invoked his right against self-incrimination before a Massachusetts grand jury involving "offenses of larceny, breaking and entering a building, violations of the narcotic and harmful drug laws, and lending or money or thing of value in violation of the General Laws [of Massachusetts]," the Supreme Judicial Court of Suffolk County, Massachusetts entered an order granting Sweet transactional immunity. Its order stated, in relevant part:
John J. Sweet shall not be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is so compelled, after having claimed his privilege against self-incrimination to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal or civil proceeding against him in any court of the Commonwealth, except in prosecution for perjury or contempt while giving testimony or producing evidence under compulsion....
On March 29, 1984, in his closing argument to the jury at the end of Kelley's trial, Assistant State Attorney Hardy Pickard stated that Sweet did not have to testify as a prosecution witness against Kelley in Florida to obtain the immunity the Massachusetts court granted him. The district court found, albeit implicitly, that had the State given defense counsel copies of the immunity order and Joe Mitchell's investigative report prior to Kelley's trial, the prosecutor would not have made the statement at all or, if he made it, defense counsel ? having the final closing argument to the jury ? would have convinced the jury that the prosecutor's statement was a lie. But for the lie, the district court concluded, there was "a reasonable probability that ... the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
The district court found separate Brady violations in the State's failure to disclose the immunity order and the Mitchell report. The court also found a symbiotic relationship between the two items, such that, when considered together, the items' materiality was significantly enhanced and clearly established a Brady violation. We consider these items separately and then together.
Nothing in the immunity order states that the Massachusetts court granted Sweet immunity on the condition that he testify against Kelley in Florida. To find that the court imposed such a condition, we would first have to infer that the court entered the order after obtaining Sweet's commitment to testify against Kelley in Florida. Since the order does not reveal such commitment, the commitment would have to have been made in a separate writing or given orally. We would have to infer further that had Sweet not made the commitment, the court would not have granted him immunity. To draw that inference, we would have to infer that the court would have ignored the grand jury's request, which was based on the need for Sweet's testimony regarding several serious crimes. Put another way, we would have to infer that the court was more interested in helping the Florida authorities obtain Sweet's testimony than it was in honoring the grand jury's request. The counter-inference is far more likely: the court was so inclined to grant the grand jury's request that it gave Sweet transactional immunity rather than use immunity. In sum, the immunity order, standing alone, does not permit the inference that the prosecutor lied when he told the jury that the Massachusetts immunity order was not conditioned on Sweet's promise to testify against Kelley in Florida. Moreover, as will become clear from an examination of the Mitchell report, there can be no doubt that court did not grant Sweet immunity because he promised to testify for the State at Kelley's trial.
We turn now to the Mitchell report to see if it permits the inference that the prosecutor lied in his closing argument to the jury. The district court found that the State's "fail[ure] to disclose to defense counsel Agent Joe Mitchell's Florida Department of Law Enforcement Investigative Report dated February 21, 1981" violated the Brady rule. Kelley, 222 F.Supp.2d at 1363 (S.D.Fla.2002). The report generally describes conferences that took place on February 21 and 23, March 6 and 12, 1981, concerning Kelley's and Sweet's criminal activities, including the Maxcy murder. Some of the conferences were held telephonically and some in person. All involved law enforcement authorities; Sweet was physically present on March 12.
According to Mitchell's report, on February 21, Rex Armistead, Director of the Regional Organized Crime Intelligence Center in Memphis, Tennessee, called Mitchell with the following information: Major John Regan of the Massachusetts State Police had informed him that the State Police were "conducting a major multi jurisdictional [sic] investigation involving organized crime activities in ... Massachusetts and a witness whom they had in protective custody had provided information pertaining to [the Maxcy] murder." The witness was John Sweet. The information was that Maxcy had been killed in 1966 by William Kelley, "a ... hit man" Sweet had hired. "Armistead emphasized that Major Regan ... indicated that Sweet was willing to testify in behalf of the State of Florida [in the prosecution of Kelley for Maxcy's murder], providing he could be granted immunity...." Mitchell was aware of "the homicide ... Sweet had been discussing with Major Regan" and told Director Armistead that Sweet had been indicted for Maxcy's murder, and that the victim's wife, Irene Maxcy, who testified at Sweet's trial, had subsequently been charged with perjury and found guilty. Mitchell also told Armistead that he was unaware of the "disposition of Sweet's charges."
According to ... Armistead, Major Regan was requesting assistance from the [FDLE] in checking into the investigation of the homicide of von Maxcy, and the possibilities of using testimony by Sweet on charges against suspect William Kelley of the Boston area. Further, Major Regan advised that their department is scheduled to indict and charge suspect Kelley with a number of felonies.... It was felt that if the State of Florida could prosecute Kelley in th[e] 1966 homicide the State of Florida could make a stronger case against Kelley.
Mitchell advised Director Armistead that "Major Regan's request wou
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