The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13821 June 27, 2007
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00168 CV-T-24TGW
JOHN RUTHELL HENRY,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
_________________________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________________________
(June 27, 2007)
Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner John Henry (“Petitioner”) was convicted of murder and sentenced
to death by a Florida court. Petitioner brought this habeas petition in federal
district court pursuant to 28 U.S.C. § 2254 challenging his conviction and
sentence on the ground that he received ineffective assistance of counsel at the
penalty phase and at sentencing. The district court rejected Petitioner’s claims and
denied relief. Petitioner only appeals the denial of habeas with respect to his
counsel’s performance at sentencing. We affirm.
I. BACKGROUND
For purposes of this appeal, these are the undisputed facts. Shortly before
Christmas 1985, Petitioner went to Pasco County to speak to his estranged wife
Suzanne Henry (“Suzanne”). Before he arrived, he had smoked crack cocaine.
The couple began to argue during his visit, and the dispute ended when Petitioner
killed Suzanne by stabbing her repeatedly in the throat, at least thirteen times.
Petitioner told investigators that Suzanne initially grabbed the knife to stab him;
but he overpowered her, secured the knife, and then killed her. Petitioner then
took Eugene Christian (“Eugene”) -- Suzanne’s five-year old son from another
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marriage -- to Hillsborough County. Hours later, Petitioner killed Eugene by
repeatedly stabbing him in the throat.
Petitioner was tried and convicted for Suzanne’s murder in Pasco County.1
During the penalty phase, Petitioner’s lawyer called psychologist Dr. Berland and
psychiatrist Dr. Afield as expert witnesses. Dr. Berland testified that Petitioner --
who was 40 years old -- had a low IQ (78) and was “actively psychotic.” Dr.
Afield testified that Petitioner had severe drug and alcohol problems as well as
long-term severe, chronic paranoia. He also said Petitioner was psychotic but
could distinguish between right and wrong. Together, the doctors testified that
two statutory mitigating factors applied: (1) Petitioner was substantially impaired
in his ability to conform his behavior to the law; and (2) at the time of the offense,
he was under the influence of an extreme emotional disturbance. But both doctors
testified that Petitioner’s cocaine use before the murders was not the basis for their
conclusions; such drug use would only have worsened his psychotic condition,
according to the doctors.
1
Petitioner was convicted and sentenced to death for Eugene’s murder in Hillsborough County,
but the conviction and sentence were reversed on direct appeal. Henry v. State, 574 So.2d 66 (Fla.
1991). On retrial, Petitioner was again convicted and sentenced to death, and the Florida Supreme
Court affirmed. Henry v. State, 649 So.2d 1361 (Fla. 1994). This appeal does not concern
Petitioner’s conviction and sentence for the murder of Eugene.
3
Despite this testimony, the jury unanimously recommended a death
sentence. The court sentenced Petitioner to death, finding no mitigating factors
and three aggravating factors: (1) previous conviction of a violent felony;2 (2) the
murder was heinous, atrocious, and cruel (HAC); and (3) it was cold, calculated,
and premeditated (CCP). The Florida Supreme Court, however, reversed
Petitioner’s conviction because the trial court improperly admitted prejudicial
evidence of Eugene’s murder and because the record did not support the CCP
factor. Henry v. State, 574 So.2d 73 (Fla. 1991) (“Henry I”).
In the retrial, Petitioner was represented by a new attorney: Richard
Howard. Notwithstanding Howard’s arguments about self-defense and depraved
mind, Petitioner was again convicted for capital murder. At sentencing, Howard
called lay witnesses -- Petitioner’s girlfriend Rosa Mae Thomas and her daughter
Stephanie -- to testify that the victim, Suzanne, was a violent and provocative
person. In contrast, they viewed Petitioner as a loving, pleasant, and nice man.
They also described Petitioner’s problems with drug and alcohol use and said his
use of cocaine caused him to act paranoid.
2
Ten years before Petitioner’s 1985 murder of Suzanne and Eugene, Petitioner was convicted for
second degree murder of his first wife, Patty, who he also killed by repeatedly stabbing her in the
throat.
4
Howard decided not to call the mental health expert witnesses from the first
trial -- Drs. Berland and Afield -- because he thought their testimony would have
done more harm than good. Dr. Afield had testified in the first trial that Petitioner
was a “very dangerous man.” And the jury from the first trial unanimously
recommended death despite the mental-health testimony. The State, however, did
call its medical experts, who testified (1) that Petitioner was not under the
influence of cocaine when he killed Suzanne because the effects would have
tapered off by the time of the murder and (2) that he did not qualify for the
emotional-disturbance or inability-to-conform-to-the-law mitigating factors.
The jury in the second trial also unanimously recommended death.
Accordingly, the court sentenced Petitioner to death, finding no mitigating factors
and two aggravating factors: HAC and the previous violent felony. This time, the
conviction and sentence were affirmed on appeal. Henry v. State, 649 So.2d 1366
(Fla. 1994), cert. denied, 115 S.Ct. 2591 (1995) (“Henry II”). Petitioner sought
post-conviction relief under state law based upon claims of ineffective assistance
of counsel at the guilt-innocence and penalty phases. The state courts denied
relief. Henry v. State, 862 So.2d 679 (Fla. 2003) (“Henry III”).
Petitioner filed this suit under 28 U.S.C. § 2254, also seeking relief for
ineffective assistance of counsel. The district court denied relief, and Petitioner
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only appeals the decision as to his claims on Howard’s performance during the
penalty phase. Petitioner seeks reversal because Howard failed to call Drs. Afield
and Berland, who could have presented additional mitigating evidence to the jury
and countered the State’s expert testimony.
II. STANDARD OF REVIEW
In post-conviction matters involving state convictions, we owe the state
courts considerable deference. Pursuant to 28 U.S.C. § 2254, federal habeas may
be granted for a claim adjudicated on the merits in state court if the state court
adjudication “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). Factual findings are presumed
correct unless rebutted by clear and convincing evidence. Id. § 2254(e)(1).
Under § 2254(d)(1), a federal court may grant habeas relief “if the state
court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a
question of law or if the state court decides a case differently than th[e Supreme]
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Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 120
S. Ct. 1495, 1523 (2000). Under § 2254(d)(2), a court may grant the writ if the
state court correctly identifies the governing legal principle but applies that
principle unreasonably to the facts of the prisoner's case. Id.
III. DISCUSSION
To prevail on an ineffective assistance of counsel claim, the petitioner must
prove both incompetence and prejudice by showing that (1) “counsel’s
representation fell below an objective standard of reasonableness” and (2) “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington, 104 S. Ct.
2052, 2064, 2068 (1984). Petitioner has not shown that Howard’s performance
was unreasonable or prejudicial.
When Howard undertook Petitioner’s representation for the retrial, he had
the benefit of knowing what happened in Petitioner’s first trial. He had access to
all the files and the record. He knew about the medical examinations and Dr
Afield’s and Dr. Berland’s reports, depositions, and trial testimony. Howard knew
that Dr. Afield told the first jury that he thought Petitioner was a very dangerous
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man. And he knew that despite the doctors’ testimony, the jury unanimously
recommended the death sentence and that the trial court found no mitigating
factors at sentencing.
With the benefit of such information, Howard chose not to present Drs.
Afield and Berland as expert witnesses in the retrial because he felt their testimony
would not be helpful and could be harmful. Instead, he chose a different strategy
to establish mitigating factors. Howard thought Petitioner might have more
success at sentencing if people who knew him -- his girlfriend Rosa Mae and her
daughter Stephanie -- could testify about his nonviolent and nice behavior; in
other words, their testimony could “humanize” Petitioner in front of the jury.
Also, they could testify about the violent nature of the victim.
Especially in the light of what happened at Petitioner’s first trial, we accept
the Florida courts’ conclusion that Howard’s sentencing strategy in the retrial was
reasonable: Howard’s decision to call Rosa and her daughter Stephanie -- but not
the doctors -- to establish mitigating evidence was within the range of sound
representation.3 See Haliburton v. Sec’y for Dept. of Corr., 342 F.3d 1233, 1244-
3
Petitioner contends that every competent lawyer would have called the doctors as witnesses
because their testimony supported three mitigating factors: (1) extreme emotional disturbance under
Fla. Stat. § 921.141(6)(b); (2) inability to conform conduct to the law under § 921.141(6)(f); and (3)
young age under § 921.141(6)(g). We disagree. The first two mitigation arguments were advanced
in Petitioner’s first trial, yet they proved unsuccessful: no mitigating facts were found. The “mental
age” mitigator was never advanced, but when it was raised in Petitioner’s state post-conviction
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45 (11th Cir. 2003) (concluding that counsel’s decision to humanize the defendant
through lay testimony rather than call a mental health expert who might have hurt
the defense was not deficient performance). We recognize that the State presented
expert witnesses at sentencing and that Howard could have called Drs. Afield and
Berland to counter the State’s experts. But because a defense lawyer could have
reasonably believed the testimony was potentially too harmful, Howard was not
required to call the doctors. See Stevens v. Zant, 968 F.2d 1076, 1083 (11th Cir.
1992) (concluding counsel was not deficient in failing to call clinical psychologist
during sentencing because counsel thought the testimony was potentially harmful).
Petitioner has not shown his sentence would have likely been different from the
sentence he received -- either the death sentence from his first trial or the death
sentence from his retrial -- had Howard actually called the doctors to testify.
proceedings, Howard testified he did not believe the argument was sound. Although Dr. Bill
Mosman opined in a post-conviction hearing that Petitioner’s mental age was 13 or 14, Howard
“vigorously disagree[d].” Howard testified that Petitioner was able to discuss and understand adult
concepts much better than a 13 year old child. He also testified that even if this theory could have
“possibly worked,” it would not have been in Petitioner’s best interest because the doctors’
testimony would have hurt his case. We cannot say that the state courts were obliged to conclude
that Howard was ineffective for failing to advance this line of argument.
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IV. CONCLUSION
The highest state court’s judgment must be given considerable deference.
The district court properly denied Henry’s 28 U.S.C. § 2254 petition.
AFFIRMED.
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