[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 3, 2007

N o . 06-12351

THOMAS K. KAHN

CLERK

D . C. Docket No. 03-00547-CV-J-20HTS

L O U IS B. GASKIN,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(A u g u st 3, 2007)

B efo re TJOFLAT, BLACK and WILSON, Circuit Judges.

P E R CURIAM:

L o u is B. Gaskin ("Gaskin"), a death-sentenced inmate in the Florida prison s ys te m , filed a petition for writ of habeas corpus challenging his state court co n v ictio n s for two counts of first degree murder, one count of attempted first d eg ree murder with a firearm, and two counts of burglary of a dwelling with a firearm . The district court denied Gaskin's petition on numerous grounds. We g r a n te d a certificate of appealability on three issues: (1) whether Gaskin was d en ied the effective assistance of counsel in the penalty phase of his trial based on co u n sel's failure to investigate and present mitigation evidence and to address s ta tu to r y mitigating circumstances in closing argument; (2) whether Gaskin was d en ied a fair and impartial jury when the trial court denied his motions to change v en u e due to pervasive and prejudicial pretrial publicity; and (3) whether Florida's c ap ita l sentencing statute is unconstitutional on its face and as applied, and whether th is claim is procedurally defaulted.1 After a thorough review of the record, and after having the benefit of oral argument, we affirm the district court's denial.

BA CK GR OU ND T h e Florida Supreme Court summarized the factual background in Gaskin's d irect appeal: T h e convictions arise from events occurring on the night of D ecem b er 20, 1989, when Gaskin drove from Bunnell to Palm Coast an d spotted a light in the house of the victims, Robert and Georgette S tu rm fels. Gaskin parked his car in the woods and, with a loaded gun, ap p ro ach ed the house. Through a window he saw the Sturmfels sittin g in their den. After circling the house a number of times, G ask in shot Mr. Sturmfels twice through the window. As Mrs.

S tu r m f els rose to leave the room, Gaskin shot her and then shot Mr.

S tu rm fels a third time. Mrs. Sturmfels crawled into the hallway, and G ask in pursued her around the house until he saw her through the d o o r and shot her again. Gaskin then pulled out a screen, broke the w in d o w , and entered the home. He fired one more bullet into each of th e Sturmfels' heads and covered the bodies with blankets. Gaskin th en went through the house taking lamps, video cassette recorders, so m e cash, and jewelry.

G a sk in then proceeded to the home of Joseph and Mary Rector, w h o m he again spied through a window sitting in their den. While G ask in cut their phone lines, the Rectors went to bed and turned out th e lights. In an effort to roust Mr. Rector, Gaskin threw a log and so m e rocks at the house. When Mr. Rector rose to investigate, Gaskin sh o t him from outside the house. The Rectors managed to get to their car and drive to the hospital in spite of additional shots fired at their c ar as they sped away. Gaskin then burglarized the house.

G ask in 's involvement in the shootings was brought to the atten tio n of the authorities by Alfonso Golden, cousin of Gaskin's g irlfrien d . The night of the murders, Gaskin had appeared at Golden's h o m e and asked to leave some "Christmas presents." Gaskin told G o ld e n that he had "jacked" the presents and left the victims "stiff." Golden learned of the robberies and murders after watching the news a n d called the authorities to report what he knew. The property that h ad been left with Golden was subsequently identified as belonging to th e Sturmfels.

G as k in was arrested on December 30, and a search of Gaskin's h o m e produced more of the stolen items. After signing a rig h ts-w aiv er form, Gaskin confessed to the crimes and directed the au th o rities to further evidence of the crime in a nearby canal.

T h e jury found Gaskin guilty of two counts of first-degree m u rd er in the death of Robert Sturmfels (premeditated and felony m u rd er); two counts of first-degree murder in the death of Georgette S tu r m f els (premeditated and first-degree murder); one count of armed ro b b ery of the Sturmfels; one count of burglary of the Sturmfels' h o m e ; one count of attempted first-degree murder of Joseph Rector; o n e count of armed robbery of the Rectors; and one count of burglary o f the Rector's home. The jury found Gaskin not guilty of attempted f ir st- d e g r e e murder of Mary Rector.

D u rin g the penalty phase . . . [t]he defense introduced the testim o n y of Janet Morris, Gaskin's cousin, who testified that she and G ask in were raised by their great-grandparents, who were very strict, an d that Gaskin never gave anyone any trouble during his formative years. The jury recommended death for both murders by a vote of eig h t to four. In addition to the penalty phase testimony, the judge w as given a certified judgment and sentence for an unrelated burglary, a copy of Gaskin's statement, and a copy of a psychiatric report by Dr.

Jack Rotstein to consider in sentencing Gaskin.

G a s k in v. State (Gaskin I), 591 So. 2d 917, 918­19 (Fla. 1991).

F o llo w in g an unsuccessful direct appeal,2 Gaskin pursued post-conviction relief in state court pursuant to Fla. R. Crim. P. 3.850. The trial court denied his p etitio n without conducting an evidentiary hearing. On appeal, the Florida S u p r em e Court ordered an evidentiary hearing on Gaskin's ineffective assistance o f counsel claims, but affirmed on all other issues. Gaskin v. State (Gaskin II), 737 S o . 2d 509, 518 (Fla. 1999) (per curiam). On remand, the trial court conducted an ev id en tiary hearing and denied relief. The Florida Supreme Court affirmed, fin d in g that (1) defense counsel's decision not to present mental health evidence in m itig atio n was a reasonable strategic decision; (2) any deficiency in counsel's failu re to provide the mental health expert with Gaskin's school record was not p reju d icial; and (3) defense counsel's penalty phase closing argument did not am o u n t to ineffective assistance. Gaskin v. State (Gaskin III), 822 So. 2d 1243, 1 2 4 9 ­ 5 2 (Fla. 2002) (per curiam). Gaskin then filed a petition for writ of habeas c o r p u s in the federal district court, which denied his petition without holding an ev id en tiary hearing.

S T A N D A R D S OF REVIEW "W h e n reviewing the district court's denial of a habeas petition, we review q u estio n s of law and mixed questions of law and fact de novo, and findings of fact f o r clear error." Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (per cu riam ). Because Gaskin's petition was filed after the effective date of the A n tite rr o r is m and Effective Death Penalty Act ("AEDPA"), we, in essence, review th e decisions of the state courts. Pursuant to the AEDPA: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be g ran ted with respect to any claim that was adjudicated on the m erits in State court proceedings unless the adjudication of the c la im - (1) resulted in a decision that was contrary to, or involved an u n r ea so n a b le application of, clearly established Federal law, as d e te rm in e d by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable d eterm in atio n of the facts in light of the evidence presented in th e State court proceeding.

28U.S.C. § 2254(d). Furthermore, a state court's factual findings are presumed co rrect, unless rebutted by the petitioner with clear and convincing evidence. Id. § 2 2 5 4 (e)(1 ).

Under the contrary to clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the S u p rem e Court on a question of law or if the state court decides a case d ifferen tly than the Court has on a set of materially indistinguishable f ac ts . Under the unreasonable application clause, a federal habeas c o u r t may grant the writ if the state court identifies the correct g o v ern in g legal principle from the Supreme Court's decisions but u n r ea so n a b ly applies that principle to the facts of the prisoner's case.

U n d er either standard the appropriate measuring stick is clearly estab lish ed federal law, which means the holdings, as opposed to the d icta, of the Supreme Court's decisions as of the time of the relevant state court decision.

W illia m s v. Allen, 458 F.3d 1233, 1238 (11th Cir. 2006) (quoting Schwab v. C ro sb y, 451 F.3d 1308, 1310 (11th Cir. 2006)).

D IS C U S S IO N I. I n e ff ec tiv e Assistance of Counsel G ask in argues that trial counsel's representation was ineffective during the p e n a lty phase because he failed to adequately investigate school and medical reco rd s; failed to provide this information to Dr. Krop, who had been retained by d e f en s e counsel as a mental health expert; failed to call Dr. Krop or any other m e n ta l health expert to testify at trial; and failed to mention any statutory m itig atio n evidence in his closing argument.

The clearly established federal law for ineffective assistance of counsel claim s was set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U .S . 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish a claim of in ef fe ctiv e assistance of counsel, first, "the defendant must show that counsel's p erfo rm an ce was deficient . . . [which] requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the d efen d an t by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064. Second, the d efen d an t must show that counsel's deficient performance prejudiced him. Id.

That is, "[t]he defendant must show that there is a reasonable probability that, but f o r counsel's unprofessional errors, the result of the proceeding would have been d ifferen t. A reasonable probability is a probability sufficient to undermine co n fid en ce in the outcome." Id. at 694, 104 S. Ct. at 2068. Furthermore, the S u p rem e Court held in Strickland: [S]trategic choices made after thorough investigation of law and facts relev an t to plausible options are virtually unchallengeable; and s tr ate g ic choices made after less than complete investigation are r ea so n a b le precisely to the extent that reasonable professional ju d g m en ts support the limitations on investigation. In other words, c o u n s el has a duty to make reasonable investigations or to make a reaso n ab le decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate m u st be directly assessed for reasonableness in all the circumstances, ap p lyin g a heavy measure of deference to counsel's judgments.

I d . at 690­91, 104 S. Ct. at 2066.

In this case, the State court found that trial counsel made a strategic decision n o t to present Dr. Krop's findings, and not to present further evidence regarding G ask in 's educational history. Counsel purposely withheld information about G ask in 's past, including school records, because he had reason to believe that it w o u ld lead to damaging testimony regarding Gaskin's past violent and criminal co n d u ct. Gaskin II, 822 So. 2d at 1248. Dr. Krop testified at the 3.850 evidentiary h earin g that he expressly told counsel before trial that he would not be helpful to th e defense because he would be subject to cross examination regarding Gaskin's ex ten siv e history of criminal conduct, sexual deviancy, and lack of remorse.

We have held that "counsel is not required to present all mitigation evidence, ev en if the additional mitigation evidence would not have been incompatible with co u n sel's strategy. Counsel must be permitted to weed out some arguments to s tr es s others and advocate effectively." Haliburton v. Sec'y for Dep't of Corr. 342 F .3 d 1233, 1243­1244 (11th Cir. 2003) (internal quotation marks and citations o m itte d ) . Furthermore, a state court's finding that a decision by counsel was tactical is a finding of fact. Bolender v. Singletary, 16 F.3d 1547, 1558 n.12 (11th C ir. 1994). Accordingly, Gaskin has "the burden of rebutting the presumption of co rrectn ess by clear and convincing evidence." 28U.S.C. § 2254(e)(1). Upon rev iew of Gaskin's 3.850 evidentiary hearing, and considering that Gaskin chose n o t to present rebuttal evidence at that hearing or in response to the state court's fin d in g s, we conclude that he has not presented clear and convincing evidence to reb u t the presumption that his counsel's decisions were tactical. In fact, the ev id en ce presented at the hearing confirms the state court's finding that counsel's d ecisio n s regarding presentation of mitigation evidence were made strategically to p rev en t far more damaging evidence from being introduced.

Gaskin also contends that counsel was deficient for failing to adequately in v e stig a te Gaskin's educational history, and for failing to provide educational reco rd s to Dr. Krop. We have held that when counsel "totally fails to inquire into th e defendant's past or present behavior or life history" in a capital case, his co n d u ct is deficient. Housel v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001); Ja ckso n v. Herring, 42 F.3d 1350, 1367­68 (11th Cir. 1995) (holding that r ep r e se n ta tio n is beneath standards of professional competence where counsel does n o t conduct sufficient investigation to formulate an adequate life profile of a d efen d an t). In this case, however, trial counsel conducted some investigation into G ask in 's history, including his educational history. At the evidentiary hearing, trial counsel recalled that his co-counsel or his investigator had spoken with some o f Gaskin's teachers. F u rth erm o re, even if counsel was deficient for failing to adequately in v estig ate, Gaskin cannot meet Strickland's prejudice prong. Gaskin argues that h ad trial counsel provided Dr. Krop with educational records prior to trial, he w o u ld have come to a different conclusion. However, Dr. Krop testified in the ev id en tiary hearing that after reviewing Gaskin's records post-conviction, his d iag n o sis remained the same as it was pretrial, with the additional diagnosis of a tte n tio n deficit disorder ("ADD"). Gaskin further contends that he was in a c cu r a te ly presented as an average student, and that evidence should have been p resen ted he was a special education student with mental health problems.

However, Dr. Krop testified that the school records confirmed that Gaskin had an av erag e intellectual ability. Also, the fact remains that further investigation and f u r th e r evidence would have opened the door to damaging personal history e v id e n c e . Accordingly, we cannot say that there is a reasonable probability that ad d itio n al investigation would have changed trial counsel's strategy. Thus, there is n o t a reasonable probability that the outcome of the case would have been different b u t for counsel's errors.

T h e state court's determination that Gaskin's counsel's conduct was not in effectiv e or prejudicial was not contrary to, or an unreasonable application of S trickla n d v. Washington, nor was it an unreasonable application of the facts in lig h t of the evidence presented in the state habeas proceeding.

I I. Change of Venue Due to Pervasive and Prejudicial Pretrial Publicity G a sk in argues that he was denied a fair and impartial jury because the trial c o u r t denied his motions to change venue due to pervasive and prejudicial pretrial p u b licity. We have previously summarized the standards that apply to this issue: The trial court may be unable to seat an impartial jury because of p r e ju d ic ia l pretrial publicity or an inflamed community atmosphere.

In such a case, due process requires the trial court to grant defendant's m o tio n for a change of venue. This does not mean, however, that a d e f en d a n t is entitled to a change of venue whenever potential jurors h a v e been exposed to the facts of the case.

It is not required that jurors be totally ignorant of the facts and issu es involved. In these days of swift, widespread and diverse m eth o d s of communication, an important case can be expected to aro u se the interest of the public in the vicinity, and scarcely any of th o se best qualified to serve as jurors will not have formed some im p ressio n or opinion as to the merits of the case. This is particularly tru e in criminal cases. To hold that the mere existence of any p reco n ceiv ed notion as to the guilt or innocence of an accused, w ith o u t more, is sufficient to rebut the presumption of a prospective ju ro r's impartiality would be to establish an impossible standard. It is su fficien t if the juror can lay aside his impression or opinion and ren d er a verdict based on the evidence presented in court.

A defendant is entitled to a change of venue if he can d em o n strate either "actual prejudice" or "presumed prejudice." To fin d the existence of actual prejudice, two basic prerequisites must be s atis fie d . First, it must be shown that one or more jurors who decided th e case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Second, these jurors, it must be d eterm in ed , could not have laid aside these preformed opinions and r en d e re d a verdict based on the evidence presented in court. If a d efen d an t cannot show actual prejudice, then he must meet the d em an d in g presumed prejudice standard.

P r eju d ic e is presumed from pretrial publicity when pretrial p u b licity is sufficiently prejudicial and inflammatory and the p reju d icial pretrial publicity saturated the community where the trials w ere held. The presumed prejudice principle is rarely applicable, and is reserved for an extreme situation. Where a petitioner adduces ev id en ce of inflammatory, prejudicial pretrial publicity that so p erv ad es or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from the community, jury p reju d ice is presumed and there is no further duty to establish bias.

M eeks v. Moore, 216 F.3d 951, 960­961 (11th Cir. 2000) (emphasis added) (block q u o tatio n s, citations and alterations omitted); see also Coleman v. Kemp, 778 F.2d 1 4 8 7 (11th Cir. 1985).

G ask in argues that prejudice should be presumed in this case because of the w id esp read dissemination of prejudicial and inflammatory material throughout the co m m u n ity.3 Gaskin argues that pretrial publicity regarding his case saturated the "r u r al" community of Flagler county where the crimes were committed and where h e was tried. The Daytona Beach News-Journal published articles which focused o n Gaskin's culpability and on the heinous nature of the crimes. The articles also co n n ected Gaskin to another murder and contained statements of law enforcement o fficials about the case. The trial commenced less than six months after the m u rd ers occurred. Gaskin claims that 92% of potential jurors and 11 of the 12 ju ro rs at trial had read newspaper accounts of the crime.

However, this case is not the type of extreme situation for which we reserve a finding of presumed prejudice. Gaskin does point to articles published in the lo cal newspaper that may have been somewhat prejudicial or inflammatory.

However, he does not present strong enough evidence that prejudicial and in flam m ato ry pretrial publicity saturated the community. See Coleman, 778 F.2d at 1537 ("[T]he burden placed upon the petitioner to show that pretrial publicity d ep riv ed him of his right to a fair trial before an impartial jury is an extremely h eav y one."); Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006) (per cu riam ); Spivey v. Head, 207 F.3d 1263, 1270 (11th Cir. 2000). Accordingly, the F lo rid a Supreme Court's determination that Gaskin's motion for change of venue w as properly denied was neither "contrary to," nor "an unreasonable application" o f, United States Supreme Court precedent. See 28U.S.C. § 2254(d).

CONCLUSION F o r the foregoing reasons, we hold that the state court's adjudication of G a sk in 's claims did not result in a decision that was contrary to, or an u n reaso n ab le application of, clearly established Federal law; nor did it result in a d ecisio n that was based on an unreasonable determination of the facts in light of th e evidence presented in the State court. Accordingly, we affirm the district co u rt's denial of Gaskin's petition.

A F F IR M E D .

1 Gaskin concedes that his claim regarding the constitutionality of Florida's capital sentencing statute is procedurally defaulted. Accordingly, we affirm the district court's denial on that issue without further discussion.

2 The Florida Supreme Court affirmed Gaskin's convictions, with the exception of vacating one adjudication for first-degree murder for each victim because "each death will support only one adjudication." Gaskin I, 591 So.2d at 920.

3 Gaskin does not argue on appeal that there was actual prejudice in this case. In holding that the trial court had not abused its discretion in denying defendant's motion to change venue, the Florida Supreme Court noted that "[a]ll jurors who served affirmatively and unequivocally stated that they could put aside any prior knowledge and decide the case solely on the evidence presented at trial. There is nothing in the record that suggests otherwise." Gaskin I, 591 So. 2d at 919. Furthermore, the trial judge liberally granted challenges for cause, and gave each attorney an additional five peremptory challenges. Id. Defense counsel did not even use all the peremptory challenges available. Id. The Florida Supreme Court concluded that Gaskin did not demonstrate that he was prejudiced by any knowledge the jurors may have possessed. Id. at 920. Although the state court did not use the actual/presumed prejudice framework, the state court made factual findings that clearly indicate no actual prejudice, and that are unrebutted by clear and convincing evidence.