Billy Leon Kearse v. Secretary, Florida Department of Corrections

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 15-15228

____________________

BILLY LEON KEARSE,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:09-cv-14240-WJZ

____________________

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Before WILSON, LUCK, and ED CARNES, Circuit Judges.

LUCK, Circuit Judge:

Billy Kearse was convicted and sentenced to death for the

1991 murder of police officer Danny Parrish. Thirty years later,

Kearse appeals the denial of his petition for a writ of habeas corpus

under 28 U.S.C. section 2254. He contends that the Florida Su-

preme Court unreasonably applied Strickland v. Washington, 466

U.S. 668 (1984) in denying claims that his trial counsel was ineffec-

tive because he failed to investigate and prepare for the testimony

of the state’s mental health expert and he failed to investigate and

present evidence of Officer Parrish’s prior misconduct and difficul-

ties dealing with the public. Kearse also contends that the Florida

Supreme Court unreasonably applied Atkins v. Virginia, 536 U.S.

304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005) in conclud-

ing that his death sentence was not cruel and unusual even though

he had low-level intellectual functioning, mental and emotional

impairments, and was eighteen years and eighty-four days old at

the time of the murder. After careful review of the briefs and the

record, and with the benefit of oral argument, we affirm.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Murder

On the night of January 18, 1991, Kearse and his friend,

Rhonda Pendleton, decided to pick up some pizza. On their way

back to Pendleton’s home in Fort Pierce, Florida, Kearse drove the

wrong way down a one-way street. Officer Parrish saw Kearse

driving the wrong way and pulled him over for a traffic stop.

Kearse couldn’t give Officer Parrish a valid driver’s license because

he didn’t have one and he lied about his name and date of birth.

Officer Parrish told Kearse that he would write Kearse three tickets

and let him go if Kearse would tell him his real name.

Kearse kept lying about his name, so Officer Parrish told

Kearse to get out of the car and put his hands on top of it. When

Officer Parrish went to handcuff Kearse, Kearse told Officer Parrish

not to touch him and called Officer Parrish a “lying ass pig” and

said “I’m not going no mother fuckin’ where with you.” At some

point, Officer Parrish accidentally hit Kearse below the eye with his

handcuffs while trying to control Kearse. A physical struggle fol-

lowed during which Kearse snatched Officer Parrish’s service pis-

tol.

Kearse shot Officer Parrish, causing Officer Parrish to fall

back. Kearse briefly paused while Officer Parrish pleaded for his

life—“Come on, man, don’t do it, don’t do it”—before firing off

another round of bullets. He fired again and again and again and

again and again and again and again and again and again and again

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and again—a total of thirteen bullets into Officer Parrish, killing

him.

Kearse kept Officer Parrish’s pistol, drove Pendleton home,

and flattened his car’s tire “[t]o keep the police off [him].” He told

Pendleton that he killed Officer Parrish because he was on proba-

tion, he wasn’t sure if there was a warrant out for his arrest, and he

didn’t want to go back to prison so soon after his release the month

before. Kearse was arrested later that night and confessed that he

shot Officer Parrish.

The Trial

The State of Florida charged Kearse with first-degree mur-

der and robbery with a firearm. Robert Udell, a defense attorney

experienced with capital cases, was appointed to defend Kearse.

After a week-long trial in October 1991, the jury convicted

Kearse on both counts. As required by Florida’s capital-sentencing

statute, the state trial court then held a separate sentencing hearing

in front of the jury. The jury recommended that Kearse be sen-

tenced to death, and the state trial court sentenced Kearse to death

consistent with the jury’s recommendation. The Florida Supreme

Court affirmed Kearse’s convictions but remanded for resentenc-

ing because of “errors relate[d] to the penalty phase instructions

and the improper doubling of aggravating circumstances.” Kearse

v. State, 662 So. 2d 677, 685, 686 (Fla. 1995).

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Resentencing

Resentencing was set for Monday, December 9, 1996. Thir-

teen days before the resentencing hearing, the state moved to have

its mental health expert, Dr. Daniel Martell, examine Kearse. In

response, Mr. Udell moved to continue the resentencing or to

strike Dr. Martell as a witness. Mr. Udell argued that he only heard

about the state’s intent to use Dr. Martell as an expert witness after

the state responded to a discovery demand on November 30. And

he said he could not attend Dr. Martell’s examination on the state’s

proposed dates because of scheduling conflicts. Mr. Udell also

moved to: (1) limit the use of any information gathered from the

examination; (2) declare unconstitutional Florida Rule of Criminal

Procedure 3.202—the newly established rule that permitted the

state to examine Kearse; 1 (3) prohibit application of rule 3.202; and

(4) limit the scope of the examination.

On December 3, 1996, the state trial court held a hearing on

Mr. Udell’s motions. The state trial court granted the state’s mo-

tion to examine Kearse and set the examination for December 5,

1

Rule 3.202 first became effective on January 1, 1996. See Amends. to Fla.

Rule of Crim. Proc. 3.220—Discovery (3.202—Expert Testimony of Mental

Mitigation During Penalty Phase of Cap. Trial), 674 So. 2d 83, 83–84 (Fla.

1995). It was later amended on May 2, 1996. Id. at 85. At the time of Kearse’s

resentencing, rule 3.202 provided that, “in those capital cases in which the

state gives notice of its intent to seek the death penalty within 45 days from

the date of arraignment . . . the court shall order that, within 48 hours after the

defendant is convicted of capital murder, the defendant be examined by a men-

tal health expert chosen by the state.” Id.

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the Thursday before the December 9 resentencing. The state trial

court denied Mr. Udell’s motion to continue resentencing or to

strike Dr. Martell as a witness, and deferred ruling on his other mo-

tions.

At the start of resentencing on December 9, Mr. Udell re-

newed his motion to continue or to strike Dr. Martell as a witness.

Mr. Udell explained that three days earlier the state gave him “a

copy of the raw data that Dr. Martell generated as a result of his

mental health evaluation of [Kearse]” and that the data was “on its

way to [Kearse’s] experts for their review.” But Mr. Udell wanted

more time so he could research Dr. Martell’s prior publications and

expert opinions. The state trial court denied the motion, conclud-

ing there were no grounds for a continuance and explaining that

Mr. Udell could depose Dr. Martell in the evening or over a week-

end.

Under Florida’s capital-sentencing statute, the jury was re-

quired to consider whether at least one “aggravating circumstance”

existed and, if so, whether there were sufficient “mitigating circum-

stances” to outweigh the aggravating circumstances the jury

found. See Fla. Stat. § 921.141(2) (1996). Mr. Udell sought to prove

three statutory mitigating circumstances at resentencing: (1) the

murder was committed while Kearse was under the influence of

extreme mental or emotional disturbance; (2) Kearse’s capacity to

appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law was substantially impaired; and

(3) Kearse’s age at the time of the murder. See id. § 921.141(6)(b),

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(f), (g). Mr. Udell also sought to prove forty non-statutory mitigat-

ing circumstances, including twenty-one related to Kearse’s mental

health.2

Mr. Udell called three mental health experts to prove the

statutory and non-statutory mitigating factors related to Kearse’s

mental health.

Kearse’s mental health experts’ testimony

1. Pamela Baker

Pamela Baker, a licensed mental health counselor, first met

Kearse in 1981. Mrs. Baker worked with children who had been

referred to the state as abused, neglected, or ungovernable. Kearse

was referred to Mrs. Baker as an ungovernable child because he left

home without telling anyone and was having problems with his

behavior and attendance at school. Kearse was only eight years old

at the time, which was unusual because most children referred to

the state were much older. Mrs. Baker explained that Kearse was

committed to a county program for a few months and then re-

turned to his mother’s care.

Mrs. Baker’s review of Kearse’s records revealed that the

state was concerned about whether he was suffering abuse at

2

The non-statutory mitigating factors related to Kearse’s mental health in-

cluded “[f]etal alcohol effect including hyperactivity, attention deficit disorder,

poor judgment and delayed learning,” “[o]rganic brain damaged,” “[l]ow I.Q.,

impulsive, and unable to reason abstractly,” “mildly retarded and functioned

at a third or fourth grade level,” and “severely emotionally handicapped.”

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home. It seemed that Kearse’s mother had given up on him and

had little interaction with him. Kearse would often hoard food at

school events because he was neglected at home, and he didn’t

want to leave the county program because he was eating better

than he ate at home. When Kearse was placed into the county pro-

gram, he explained that he ran away from home because he got

scared when his mother drank alcohol and fought with her boy-

friend. Kearse’s mother agreed to participate in a state parenting

program, but her participation was only superficial.

Mrs. Baker noted that Kearse was a juvenile delinquent by

age eight. He committed several offenses over the years, primarily

burglaries and petty thefts, but his delinquency records didn’t re-

flect a lot of aggressive behavior; Kearse would typically fight with

someone only if they were first aggressive to him.

Mrs. Baker testified that her husband had taught Kearse and

that he had no doubt that Kearse was severely emotionally handi-

capped and “operating at a retarded level.” By the time Kearse was

thirteen and in the seventh grade, he could spell only two words:

“cat” and “run.” Mrs. Baker taught Kearse for two years and also

had no doubt that he was severely emotionally handicapped. Mrs.

Baker never thought Kearse would kill someone, although she did

think that about other children she had encountered. She de-

scribed Kearse as being very hyperactive but not violent.

Mrs. Baker visited Kearse in 1991 after he was jailed for mur-

dering Officer Parrish. During the visit, Kearse discussed his up-

bringing. He told Mrs. Baker that he was once punished by having

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to walk around the block naked in front of his neighbors, that he

had been tied to a bed and beaten, and that his mother would beat

him with extension cords and coat hangers fashioned into clubs.

Kearse also told Mrs. Baker that he started drinking alcohol when

he was four or five years old, started smoking marijuana at the age

of twelve or thirteen, and started smoking cigarettes at the age of

fourteen. Kearse reported that he had been sexually molested

when he was twelve years old and had lost his virginity to a thirty-

one-year-old when he was less than sixteen years old.

Mrs. Baker diagnosed Kearse with “panic disorder.” Mrs.

Baker also thought that Kearse met the criteria for “conduct disor-

der.” Mrs. Baker reviewed Kearse’s medical records and noted that

he had been diagnosed with “brain damage” and possibly suffered

from fetal alcohol syndrome.

2. Dr. Fred Petrilla

Dr. Fred Petrilla, a licensed clinical psychologist, testified

that he examined Kearse at the time of Kearse’s trial in 1991 and

again in 1996 shortly before resentencing. In 1991, Dr. Petrilla

spent twenty hours with Kearse and met with Kearse’s mother. Dr.

Petrilla gave several tests to Kearse, including an intelligence test.

The results of the tests suggested brain dysfunction. Although

Kearse’s IQ was 79—“within the borderline range of intelligence,

with mentally retarded being 60 and down”—he was not mentally

retarded. At the time, Kearse scored at a third-grade level for read-

ing and spelling and at a fourth-grade level for arithmetic. Dr. Pe-

trilla explained that the tests he gave Kearse accounted for whether

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a patient was malingering and that he did not think that Kearse was

malingering.

One of the tests Dr. Petrilla gave to Kearse was the Minne-

sota Multifacing Personality Inventory (“MMPI”). Dr. Petrilla gave

the MMPI to Kearse in 1991 and again in 1996. The results showed

that Kearse acted without thinking and was extremely sensitive.

One of the factors in the test—the F Scale—considered whether a

person was trying to fake their symptoms. Kearse’s scores in 1991

weren’t suggestive of malingering. However, Kearse’s F Scale in

1996 was highly elevated. Although Dr. Petrilla conceded that he

wasn’t an expert in interpreting F Scale results, he believed that

Kearse’s elevated F Scale did not indicate malingering but was in-

stead elevated for other reasons, including stress, brain damage,

and emotional problems.

According to Dr. Petrilla, Kearse suffered from one of the

broadest arrays of problems that he had seen in anyone he exam-

ined. Dr. Petrilla concluded that Kearse suffered from longstand-

ing brain dysfunction and learning disabilities. Dr. Petrilla con-

cluded that Kearse murdered Officer Parrish while Kearse “was un-

der an extreme emotional disturbance” and that he was “still under

an extreme emotional disturbance” at the time of resentencing.

Dr. Petrilla also concluded that Kearse was substantially incapable

of conforming his conduct to the requirements of the law at the

time of the murder.

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3. Dr. Jonathan Lipman

Dr. Jonathan Lipman, a neuropharmacologist, examined

Kearse for drug-related conditions. Dr. Lipman spoke with

Kearse’s mother who confirmed that she abused alcohol while she

was pregnant with Kearse. He concluded that Kearse suffered from

“[f]etal [a]lcohol [e]ffect, a milder form of [f]etal [a]lcohol [s]yn-

drome.” Dr. Lipman also had Kearse undergo several brain scans,

the results of which suggested brain damage. He spoke with

Kearse about his recollection of the night of the murder and deter-

mined that Kearse was “confabulat[ing].” Dr. Lipman explained

that this meant Kearse was not lying but was instead filling the gaps

in his memory with what he believed was reasonable. He con-

cluded that Kearse had acted impulsively on the night of the mur-

der.

Dr. Lipman testified that he often relied on the reports of

other experts to reach a professional opinion in a case. And because

Dr. Lipman was not a psychologist or neuropsychologist, he

reached out to Dr. Lawrence Levine, a board-certified neuropsy-

chologist, and Dr. Alan Friedman, a board-certified psychologist,

to get their opinions on Dr. Martell’s test results and Kearse’s ele-

vated F Scale. Dr. Lipman recounted to the jury what Dr. Levine

and Dr. Friedman had reported to him.

According to Dr. Lipman, Dr. Levine reviewed the results

of Dr. Martell’s examination of Kearse and explained that Kearse

scored in the 50th percentile for a nine-and-a-half-year-old child on

one of Dr. Martell’s tests and that Kearse’s score on another of Dr.

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Martell’s tests corroborated Dr. Petrilla’s conclusion that Kearse

suffered from a verbal memory disorder. Kearse’s results from the

verbal learning test also indicated, according to Dr. Levine, that he

was not malingering. A third test that Dr. Levine reviewed showed

low average performance and no malingering or exaggeration. Dr.

Levine concluded that the test results showed brain dysfunction.

Dr. Lipman discussed Dr. Levine’s findings with Dr. Petrilla, who

confirmed that they were consistent with his findings.

Dr. Lipman testified that Dr. Friedman was “the natural

choice of a person” to interpret Kearse’s elevated F Scale because

Dr. Friedman was “recognized as the expert in [the MMPI]” and

was “unique among[] psychological researchers in that he [wa]s the

person that actually d[id] the raw studies of malingerers of disabled

people, and he developed the norms.” Dr. Lipman said that Dr.

Friedman was the author of a “very famous paper” on the MMPI

in which Dr. Friedman “provide[d] the tables of norms drawn from

many people that he has evaluated by which to interpret F Scales.”

Dr. Lipman told the jury what Dr. Friedman had reported to him.

According to Dr. Lipman, Dr. Friedman reviewed Kearse’s

MMPI results and concluded that Kearse “understood the ques-

tions and answered honestly without any . . . symptom magnifica-

tion whatsoever and answered consistently thereby generating a

valid profile.” Dr. Friedman said that Kearse’s “F Scale . . . [was] in

the valid range,” thus “indicating a cooperative nondissimulating

test taking attitude.” Dr. Friedman concluded that “the elevation

seen in all of . . . Kearse’s MMPI profiles reflect[ed] psychiatric

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disturbance” and that it was inappropriate to look only at the

F Scale to assess whether Kearse was malingering. Dr. Friedman

relied in part on the “F minus K index, which is a treatment that

you give to the F Scale to interpret it.” Dr. Friedman noted that

Kearse’s F minus K score was “significantly below” a benchmark

for malingering.

The state’s mental health expert’s testimony

The state’s only witness in rebuttal was Dr. Martell. Dr.

Martell disagreed with Mrs. Baker’s diagnosis of panic disorder.

Dr. Martell also thought that fetal alcohol effect—Dr. Lipman’s di-

agnosis—was “not a mental disorder.” Dr. Martell explained that

the features of fetal alcohol effect could occur naturally without al-

cohol and said that “in the literature, there’s a call to get rid of this

term [f]etal [a]lcohol [e]ffects.” Dr. Martell concluded that, in any

event, it was “highly questionable” that Kearse suffered from fetal

alcohol effect.

Dr. Martell testified that Kearse “ha[d] some areas of weak-

ness but that he d[id] not have brain damage.” Dr. Martell disa-

greed with Dr. Petrilla’s finding of brain damage because Dr. Pe-

trilla relied on a set of norms that had been criticized for not ac-

counting for the age, sex, and educational background of the sub-

ject. Dr. Martell determined that any impairment shown on Dr.

Petrilla’s tests resulted from Kearse’s depression.

Dr. Martell concluded that Kearse suffered from a conduct

disorder as a child and didn’t perform well academically because he

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“made a choice not to apply himself in school.” Dr. Martell also

diagnosed Kearse with “antisocial personality disorder” and “psy-

chopathy.” Dr. Martell explained that neither diagnosis rose to the

level of extreme emotional mental disturbance within the meaning

of the statutory mitigating circumstance.

Dr. Martell also concluded that Kearse was “faking on [his]

personality testing in an attempt to make himself look more im-

paired than he is.” In Dr. Martell’s opinion, Kearse’s elevated

F Scale in his MMPI results showed a “severe effort to fake the

test.” According to Dr. Martell, the MMPI results were “totally in-

valid,” “uninterpretable,” and “reflect[ed] an attempt on [Kearse’s]

part to fake crazy in order to avoid responsibility.”

Dr. Martell stated that he had reviewed the information that

Dr. Friedman had relayed through Dr. Lipman. Dr. Martell said

that, although Dr. Friedman had been “portrayed . . . as the world’s

greatest expert on the MMPI,” he wasn’t. Dr. Martell explained

that the F minus K index used by Dr. Friedman was “not consist-

ently reliable as a method for determining whether a profile is in-

valid or not.” Dr. Martell also faulted Dr. Friedman for not having

personally examined Kearse. Dr. Martell concluded that Kearse

was a pathological liar, and he rejected Dr. Lipman’s determination

that Kearse was confabulating.

In sum, Dr. Martell concluded that Kearse wasn’t under the

influence of an extreme mental or emotional disturbance when he

murdered Officer Parrish. Dr. Martell also concluded that Kearse’s

capacity to appreciate the criminality of his conduct or to conform

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his conduct to the requirements of the law at the time of the mur-

der wasn’t substantially impaired. That conclusion was based on

Dr. Martell’s assessment of Kearse’s behavior before, during, and

after the murder. Dr. Martell explained that Kearse: (1) under-

stood he had done something illegal by driving the wrong direction

down a one-way street and that he was worried about violating his

probation; (2) showed a capacity to conform his conduct to the re-

quirements of the law because he decided to lie to Officer Parrish

about his name and date of birth to avoid responsibility; (3) made

a decision with “[e]ach squeeze of th[e] trigger” as he fired multiple

series of rounds at Officer Parrish; and (4) made efforts to conceal

his involvement by taking Officer Parrish’s pistol with him, disa-

bling the car when he got to Pendleton’s home, and hiding the pis-

tol.

On cross-examination, Mr. Udell highlighted that Dr. Mar-

tell hadn’t spoken with Kearse’s mother or several of the defense

witnesses. And Dr. Martell conceded that reasonable experts could

form different opinions about the same set of facts. Dr. Martell also

admitted that if he were to have a pregnant wife, he wouldn’t want

her to drink alcohol like Kearse’s mother had because it could have

significant detrimental effects on their child and lead to brain dys-

function. Dr. Martell confirmed that he hadn’t studied the effects

of alcohol on animals and that he didn’t practice neuropharmacol-

ogy.

Dr. Martell admitted that he relied on reports of Kearse’s

brain scans but hadn’t reviewed the scans. Dr. Martell also

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acknowledged that his opinion about Kearse’s lack of effort at

school conflicted with the defense witnesses who said otherwise.

And he admitted that the psychiatric manual he relied on—the Di-

agnostic and Statistical Manual of Mental Disorders—previously

considered homosexuality to be a mental disorder.

Mr. Udell challenged Dr. Martell’s conclusion that Kearse

was capable of conforming his conduct to the requirements of the

law based on Kearse’s actions at the time of the murder. Mr. Udell

asked Dr. Martell to explain when he thought that Kearse formed

the intent to kill Officer Parrish, and Dr. Martell conceded that he

“hadn’t thought about it.” Mr. Udell also asked Dr. Martell why

Kearse didn’t have a gun with him if he was determined to avoid

arrest. Dr. Martell responded that Kearse likely didn’t want to add

a felon-in-possession charge to his record. Mr. Udell then high-

lighted a conflict in Dr. Martell’s testimony: “He was willing to kill

in order not to go back to jail but he wasn’t willing to possess a

firearm charge, he wasn’t concerned about that but he was so con-

cerned about not going back to jail that he’d kill an officer?” Mr.

Udell similarly contrasted Dr. Martell’s conclusion that Kearse was

trying to conceal his involvement in the murder with the fact that

Kearse confessed to killing Officer Parrish as soon as he met with

police.

Kearse’s renewed death sentence

The jury unanimously recommended the death penalty and

the state trial court followed that recommendation, finding that the

aggravating circumstances of Kearse’s crime outweighed the

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mitigating ones. The state trial court found two statutory aggra-

vating circumstances. First, the state trial court found that the mur-

der was committed while Kearse was engaged in the commission

of—or during flight after committing or attempting to commit—

robbery. And second, the state trial court found three other statu-

tory aggravating circumstances which it merged into one because

they involved a single aspect of the offense: (1) the murder was

committed for the purpose of avoiding or preventing a lawful ar-

rest or effecting an escape from custody; (2) the murder was com-

mitted to disrupt or hinder the lawful exercise of any governmental

function or the enforcement of laws; and (3) the victim was a law

enforcement officer engaged in the performance of his official du-

ties.

The state trial court found only one statutory mitigating cir-

cumstance—Kearse’s age at the time of the murder. The state trial

court found three non-statutory mitigating circumstances:

(1) Kearse cooperated with law enforcement; (2) his behavior at

trial was acceptable; and (3) he had a difficult childhood that re-

sulted in psychological and emotional problems. The state trial

court found that the mitigating circumstances were “not individu-

ally or in toto substantial or sufficient to outweigh the aggravating

circumstances.”

Kearse again appealed his death sentence to the Florida Su-

preme Court, but this time the court affirmed. Kearse v. State, 770

So. 2d 1119, 1135 (Fla. 2000).

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State Postconviction Relief

After the Florida Supreme Court affirmed Kearse’s renewed

death sentence on direct appeal, Kearse moved for postconviction

relief in state court. Kearse claimed that he received ineffective as-

sistance of counsel at resentencing because Mr. Udell failed to in-

vestigate and prepare for Dr. Martell’s testimony. Kearse also

claimed that he received ineffective assistance of counsel at resen-

tencing because Mr. Udell failed to present evidence of “Officer

Parrish’s prior misconduct and difficulties in dealing with the pub-

lic.” Specifically, Kearse faulted Mr. Udell for calling none of the

“several civilians” who had lodged complaints against Officer Par-

rish to testify at resentencing and for failing “to request Officer Par-

rish’s complete personnel file from [the] Fort Pierce Police Depart-

ment.”

Evidence relating to Kearse’s ineffective assistance of counsel

claim based on Mr. Udell’s failure to investigate and prepare for

Dr. Martell’s testimony

In April and May 2005, the state postconviction court held a

five-day evidentiary hearing on both claims. As to his ineffective

assistance of counsel claim based on Mr. Udell’s failure to investi-

gate and prepare for Dr. Martell’s testimony, Kearse presented tes-

timony from five mental health expert witnesses (Dr. Friedman,

Dr. Lipman, Dr. Barry Crown, Dr. Richard Dudley, and Dr.

Thomas Hyde), Mr. Udell, and Robert Norgard, an expert on the

community standards for defense attorneys. The state called one

witness, Dr. Martell.

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1. Dr. Friedman

Dr. Friedman testified that he became involved in Kearse’s

case when he was contacted by Dr. Lipman in 1996. He testified

that Dr. Lipman asked him to look at Kearse’s MMPI data. He did

so and determined that Kearse’s MMPI results produced a “valid

profile” because his F minus K index fell within a range that sug-

gested “that the test [was] valid, that he wasn’t faking, that it[ was]

open to interpretation.” Dr. Friedman explained that Kearse’s

“F(P) score” also indicated that “he was not exaggerating.” Alt-

hough Kearse’s F Scale was elevated, which could suggest that

Kearse was faking, he testified that Kearse’s F Scale may have been

high because Kearse had “serious maladjustment or psychiatric

problems.” He disagreed with Dr. Martell’s finding that Kearse’s

MMPI results were “[t]otally invalid.”

On cross-examination, Dr. Friedman admitted that the pro-

file generated by Kearse’s MMPI results was at least in part con-

sistent with Dr. Martell’s findings. He also conceded that Dr. Mar-

tell “had an advantage in being able to interview [Kearse].” And he

agreed that whether an F Scale showed malingering was subject to

interpretation. Dr. Friedman confirmed that Dr. Lipman’s recita-

tion of his opinion at resentencing was largely accurate.

Dr. Friedman would have testified at Kearse’s resentencing

if he had been asked to.

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20 Opinion of the Court 15-15228

2. Dr. Lipman

Dr. Lipman testified that Mr. Udell hired him to testify at

Kearse’s resentencing. He was qualified to testify as an expert

about MMPI results, although he “would normally request another

consultation . . . for [his] own edification.” He consulted Dr. Pe-

trilla about Kearse’s MMPI results, and Dr. Petrilla told Dr. Lipman

that he thought Kearse’s MMPI results were invalid. Dr. Lipman

knew from his own research that Dr. Petrilla “was probably not

correct about [that],” so he sought an “outside opinion” from Dr.

Friedman. Mr. Udell never had any interaction with Dr. Friedman,

and Dr. Lipman paid for Dr. Friedman’s services.

At the time of resentencing, Dr. Lipman had not been pro-

vided Dr. Martell’s deposition, report, or videotaped examination

of Kearse. He didn’t agree with Dr. Martell’s findings. It was clear

to him that Kearse had a “developmental disorder” and suffered

from fetal alcohol effect.

On cross-examination, Dr. Lipman agreed that he had “suf-

ficient information” to support his opinion that Kearse suffered

from fetal alcohol effect. He also agreed that Mr. Udell “over-

whelmed [him] with paperwork” and materials to rely on. No new

information had been given to Dr. Lipman since the resentencing

that would’ve changed his opinion that Kearse suffered from fetal

alcohol effect.

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15-15228 Opinion of the Court 21

3. Dr. Crown

Dr. Crown, a licensed psychologist, testified that he exam-

ined Kearse on December 9, 2002, and gave him neuropsychologi-

cal tests. One of the tests showed that Kearse “was putting forth

good effort, good motivation, no indication of malingering or ex-

aggerating or faking.” Dr. Crown concluded that Kearse was “im-

paired” and had “neuropsychological deficits,” and he confirmed

that his findings were consistent with Dr. Petrilla’s. Dr. Crown’s

findings were also consistent with reports of doctors who had ex-

amined Kearse after resentencing—specifically, Drs. Hyde and

Dudley. The common finding among the doctors was that Kearse

“ha[d] low levels of functioning” and was “brain damaged.”

Dr. Crown understood that when Dr. Petrilla gave the

MMPI to Kearse, the questions had to be read to him. Dr. Crown

thought it was “highly unlikely” that an MMPI given to Kearse

would yield a valid result because the MMPI requires an eighth-

grade reading level and Kearse was approximately at a sixth-grade

reading level.

Dr. Crown reviewed the videotape and transcript of

Dr. Martell’s examination of Kearse and didn’t think it was a stand-

ard neuropsychological clinical interview. Dr. Crown conceded

that Dr. Martell didn’t “get in . . . Kearse’s face,” probe[] him like

he was a police interrogator,” or give him a “hard sell.” Instead,

Dr. Crown found the examination “confrontational” because it in-

volved “negative priming”—“the first thing [Dr. Martell] did was

tell . . . Kearse he wanted to discuss the crime, . . . which tends to

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22 Opinion of the Court 15-15228

create a negative set.” Dr. Crown disagreed with Dr. Martell’s ul-

timate findings about Kearse.

4. Dr. Dudley

Dr. Dudley, a physician with a specialty in psychiatry, testi-

fied that he performed a psychiatric evaluation of Kearse on Febru-

ary 10, 2003. Dr. Dudley reached four conclusions based on his

evaluation: (1) Kearse had “long-standing cognitive difficulties”

that “certainly impaired his decision making [and] the impulsivity

of his acts”; (2) Kearse suffered from post-traumatic stress disorder;

(3) Kearse “had learning difficulties at minimum, and possibly [at-

tention deficit hyperactivity disorder]”; and (4) Kearse had a “sub-

stance abuse diagnosis.” Dr. Dudley also testified that Kearse’s cog-

nitive functioning was below where it should be and that Kearse

wasn’t able to conform his conduct to the requirements of the law

when he murdered Officer Parrish. Dr. Dudley explained that his

findings were consistent with Dr. Petrilla’s and Dr. Lipman’s testi-

mony at resentencing and with Dr. Crown’s and Dr. Hyde’s find-

ings.

Dr. Dudley reviewed the videotape of Dr. Martell’s exami-

nation of Kearse and concluded that Dr. Martell should’ve done

more to follow up on some topics. Dr. Dudley disagreed with Dr.

Martell’s findings that Kearse chose not to perform at school and

that there was no evidence that Kearse suffered from a major men-

tal disorder.

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15-15228 Opinion of the Court 23

Dr. Dudley would’ve been available to testify at Kearse’s re-

sentencing had he been asked to.

5. Dr. Hyde

Dr. Hyde, a board-certified neurologist, testified that he per-

formed a clinical evaluation of Kearse a few months before the

postconviction hearing. Dr. Hyde concluded that Kearse suffered

from “attention deficit hyperactivity disorder in childhood with re-

sidual attention deficit symptoms into adulthood.” Dr. Hyde also

concluded that Kearse had “brain damage” and “abnormalities

[that] would be compatible with developmental dysfunction of the

central nervous system.” Dr. Hyde’s findings were consistent with

Dr. Crown’s, Dr. Dudley’s, and Dr. Petrilla’s. According to Dr.

Hyde, Kearse didn’t exhibit any signs of malingering during the

evaluation.

Dr. Hyde disagreed with Dr. Martell’s opinion that Kearse

suffered from antisocial personality disorder. Dr. Hyde explained

that the neuropsychologists he worked with in his clinical practice

“usually conduct[ed] their examinations quite differently than Dr.

Martell did” because “[t]hey rel[ied] much more heavily on testing

batteries,” “[t]hey usually follow[ed] a . . . structured diagnostic in-

terview when trying to reach psychiatric diagnoses,” and “[t]hey

seem[ed] to explore all aspects of possible psychiatric pathology in

a greater and more organized fashion.” Dr. Hyde thought that Dr.

Martell’s examination of Kearse “was heavily weighted towards

personality disorders and antisocial personality disorder in general,

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24 Opinion of the Court 15-15228

and was not as broad based an interview and examination of

[Kearse] for looking for all aspects of psychiatric diagnoses.”

6. Mr. Udell

Mr. Udell testified that his strategy at Kearse’s resentencing

was to establish mitigating circumstances based on Kearse’s impov-

erished background, his age, and the fact that he suffered from fetal

alcohol effect.

Mr. Udell didn’t know when he first became aware that the

state sought to have Dr. Martell examine Kearse. Mr. Udell said

that Kearse’s resentencing may have been the first time he had

dealt with Dr. Martell. When asked whether he had made any at-

tempt to investigate Dr. Martell’s background, Mr. Udell said that

he “would have asked the lawyers that [he] kn[e]w who had been

doing this kind of work for many years” if they knew of Dr. Martell,

“but that’s as far as it would have gone.”

Mr. Udell couldn’t remember if he’d obtained Dr. Martell’s

resume. And he didn’t think he’d ever deposed Dr. Martell. Mr.

Udell explained that he was a “firm believer of doing very little dis-

covery on the record in the presence of the [s]tate [a]ttorney” be-

cause “[e]very time you take a deposition, they learn one thing

about your case that but for your deposition they wouldn’t have

known.”

Mr. Udell said that he “would have known what [Dr. Mar-

tell] was going to say” because he “would have either had a report

or [he] would have asked the [s]tate [a]ttorney what [Dr. Martell

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15-15228 Opinion of the Court 25

was going to] say.” Mr. Udell explained that it was not unusual for

defense counsel and the state attorney to ask each other what their

witnesses were going to say. Mr. Udell had known the state attor-

neys in Kearse’s case for many years, and they had a professional

courtesy of sharing information with each other.

The transcript of Dr. Martell’s examination of Kearse re-

flected that Mr. Udell was present at the beginning but left shortly

after it started. Mr. Udell asked Dr. Martell whether he and the

state attorney needed to be present, and Dr. Martell said that he

preferred to do the examination alone with Kearse, so Mr. Udell

and the state attorney left. Mr. Udell didn’t know if he ever re-

viewed the videotape of the examination.

On cross-examination, Mr. Udell said he thought he “put on

everything there was concerning [Kearse], his social history, men-

tal health history, [and] organic brain problems.” Mr. Udell “spoke

to all the people in the juvenile system who knew [Kearse].” Gen-

erally speaking, jurors in Indian River County, where the trial was

held, were “not big fans of mental health testimony,” so Mr. Udell

tried to play to their sensibilities. Mr. Udell thought that “bringing

in all [of Kearse’s former] teachers . . . would send a message to the

jury, forget the mental health experts, we’re on your level, this is a

good kid.” Mr. Udell explained that he was familiar with the med-

ical terminology; when he spoke casually at trial, it was a strategy

not to appear smarter than the jury.

Mr. Udell explained that he had Dr. Lipman relay Dr. Fried-

man’s opinion that Kearse’s F Scale scores did not show that Kearse

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26 Opinion of the Court 15-15228

was malingering because he “knew what [Dr.] Martell was going

to say” at resentencing. A letter that Mr. Udell had written to Dr.

Lipman confirmed that Mr. Udell planned to use Dr. Lipman to an-

ticipatorily rebut Dr. Martell’s testimony. Mr. Udell agreed that he

used Dr. Petrilla and Dr. Lipman to rebut Dr. Martell’s opinions.

Mr. Udell also confirmed that Dr. Lipman reviewed Dr. Martell’s

test data. Mr. Udell “knew going into trial exactly what Dr. Martell

was going to say as to which statutory aggravators and/or mitiga-

tors existed, and what his test results supposedly revealed, and

where he disagreed with Dr. Petrilla.” Mr. Udell didn’t separately

call Dr. Friedman to testify because he could get the “same infor-

mation to the jury through [Dr.] Lipman.”

7. Robert Norgard

Robert Norgard, a defense attorney experienced with capital

cases, testified as an expert about the community standards for de-

fense attorneys at the time of Kearse’s resentencing.3 Mr. Norgard

3

Although we summarize and discuss Mr. Norgard’s testimony here and else-

where, we so do with the understanding that, as an “experienced capital de-

fense attorney[],” his “views of what constitutes effective assistance in capital

cases” are “not dispositive,” and, indeed, they have little, if any, weight in our

analysis. See Newland v. Hall, 527 F.3d 1162, 1208 (11th Cir. 2008); see also

Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) (“Our . . . deci-

sions establish that the reasonableness of a strategic choice is a question of law

to be decided by the court, not a matter subject to factual inquiry and eviden-

tiary proof. Accordingly, it would not matter if a petitioner could assemble

affidavits from a dozen attorneys swearing that the strategy used at his trial

was unreasonable.”).

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15-15228 Opinion of the Court 27

said that it would be “extremely improper” to have experts relay

testimony of other experts outside their own expertise because

they would have “no basis or experience to defend the information

they’re providing” and would be “vulnerable to cross examina-

tion.”

Mr. Norgard explained that there were “a lot of different tac-

tical and strategic ways to go about preparing to deal with” a state’s

mental health expert. If the defendant took part in a videotaped

mental health evaluation, “you would certainly want to review and

be familiar with the evaluation.” However, whether to attend the

evaluation “would be a tactical and strategic decision by the attor-

ney.” Mr. Norgard noted that “[i]n some instances the [s]tate may

call upon a local expert, someone that [was] routinely used in your

geographic area that you may already be familiar with.” Whether

to depose an expert would be “within the tactical and strategic

province of the attorney” and “would vary from case to case.”

Mr. Norgard “would never say that you always have to de-

pose an expert.” For example, an attorney could decide against de-

posing an expert because there may be things “you don’t want the

other side to know about.” Mr. Norgard agreed that even the best

criminal defense lawyers might have different approaches to de-

fending a particular client.

8. Dr. Martell

The state called Dr. Martell. Dr. Martell testified that his

opinion about Kearse remained the same despite hearing Dr.

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28 Opinion of the Court 15-15228

Friedman’s testimony. Dr. Martell noted that “Dr. Friedman didn’t

have the advantage of looking at the 1991 MMPI profile,” and Dr.

Martell disagreed with Dr. Friedman’s testimony about the F mi-

nus K index. Dr. Martell believed he was in a better position than

Dr. Friedman to interpret Kearse’s MMPI results and assess

whether Kearse was malingering because he had the advantage of

personally examining Kearse.

Dr. Martell remembered Mr. Udell coming to his examina-

tion of Kearse. Dr. Martell recalled that Mr. Udell asked him to

begin the examination by asking about the facts of the crime so that

he could object and make a record. Dr. Martell agreed to that re-

quest and began with the crime. Mr. Udell made his objection and

then left.

Dr. Martell didn’t think he’d ever been formally deposed in

Kearse’s case. He also couldn’t remember if he gave any infor-

mation about his examination of Kearse to Mr. Udell before resen-

tencing. Dr. Martell thought that he and Mr. Udell might’ve had

“an informal conversation about the scope of [his] testimony be-

fore [he] took the stand.”

Evidence relating to Kearse’s ineffective assistance of counsel

claim based on Mr. Udell’s failure to present evidence of Officer

Parrish’s prior misconduct and difficulties dealing with the public

As to his ineffective assistance of counsel claim based on Mr.

Udell’s failure to present evidence of “Officer Parrish’s prior mis-

conduct and difficulties in dealing with the public,” Kearse

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15-15228 Opinion of the Court 29

presented testimony from his investigator at resentencing and four

citizens who had negative encounters with Officer Parrish. Kearse

also called Mr. Udell to testify about his failure to obtain Officer

Parrish’s personnel file and his decision not to call citizens to testify

about their negative encounters with Officer Parrish. And Kearse

presented testimony from Mr. Norgard about the community

standards for defense attorneys dealing with cases involving the

murder of a police officer.

1. Anne Evans

Anne Evans, Kearse’s investigator at resentencing, testified

that, when Mr. Udell hired her in 1996, she interviewed “some in-

dividuals who had come in contact with [Officer Parrish] while he

was a police officer, and [asked about] the experiences they had.”

Investigator Evans explained that Mr. Udell “gave [her] a list of

names who had allegedly made complaints against [Officer Par-

rish], and asked [her] if [she] would go out and interview them.”

Investigator Evans also interviewed Kearse’s family members and

“tr[ied] to develop new witnesses” through her investigation.

Investigator Evans didn’t have access to any of Officer Par-

rish’s employment records despite “specifically” asking Mr. Udell

to request them and telling Mr. Udell that she “thought it was very

important” to get Officer Parrish’s personnel file. Both Investigator

Evans and Kearse thought that the citizen complaints should’ve

been presented at resentencing, but Mr. Udell said he wasn’t going

to present any of them.

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30 Opinion of the Court 15-15228

2. Tracey Davis

Tracey Davis testified about her negative encounter with

Officer Parrish. She testified that Officer Parrish pulled her over

and wouldn’t tell her what she had done wrong. They argued for

about thirty to forty-five minutes before Officer Parrish told Ms.

Davis what she was being charged with. Ms. Davis’s mother even-

tually arrived, and Officer Parrish “very rudely told her” that he

didn’t have to explain anything to her.

Ms. Davis felt like Officer Parrish was “racially motivated to

stop [her].” Ms. Davis thought that Officer Parrish targeted her

because she lived in an “old black neighborhood” that was “crime

ridden.” She explained that “it was dark” out and that Officer Par-

rish “couldn’t tell who was driving [her] vehicle at first.” Ms. Davis

thought that Officer Parrish followed her “figuring [she] was going

into a drug area.”

Ms. Davis immediately filed a complaint with the police de-

partment because Officer Parrish “was very unprofessional,” har-

assed her, and belittled her. Ms. Davis wasn’t surprised to learn

that Officer Parrish had gotten “into a scuffle with a civilian” and

died.

On cross-examination, Ms. Davis admitted that she had a

“bad attitude” and cursed at Officer Parrish when he pulled her

over. When questioned about Officer Parrish’s report that Ms. Da-

vis asked him, “[W]hat are you f***ing white cops doing up here

anyway, why aren’t you down f***ing with your own kind?”, Ms.

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15-15228 Opinion of the Court 31

Davis testified that she was “pretty sure [she] didn’t say that.” Ms.

Davis conceded that, although she had used the “N word” in her

letter to the police department about her encounter with Officer

Parrish, Officer Parrish “never used any racial terms” during the

encounter. She also conceded that Officer Parrish never “physi-

cally intimidated” her—she just “didn’t like [his] attitude.”

Ms. Davis was never contacted by Mr. Udell to testify at

Kearse’s trial or at his resentencing, but she would have been will-

ing and available to testify.

3. Fabian Butler

Fabian Butler, Kearse’s maternal cousin, also had a negative

encounter with Officer Parrish. On his way home one night, Mr.

Butler stopped to talk to some friends at a street corner. Mr. Butler

didn’t want to be “affiliated with what [they were] doing,” so he

kept walking home.

By the time he had gotten about ten to fifteen steps away

from the corner, a police car pulled up, and the officer—who Mr.

Butler later learned was Officer Parrish—said to stop. Mr. Butler

kept walking and assumed that Officer Parrish was talking to the

people on the corner. Mr. Butler stopped when he heard a pistol

cocking.

Officer Parrish pointed his pistol at Mr. Butler and told him

to “shut up” after Mr. Butler asked what he had done wrong. Of-

ficer Parrish “made open threats” and said, “I’m the type of officer

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32 Opinion of the Court 15-15228

I’m gonna do bodily harm to you and put you in jail and put you

in a holding cell and don’t let nobody see you.”

Mr. Butler did not make a complaint against Officer Parrish

after the incident because he did not know he could file complaints

against police officers. Mr. Butler was not asked to testify at either

Kearse’s trial or resentencing but would have been willing to testify

at both had he been asked to do so.

4. Charles Pullen

Charles Pullen testified about an encounter with Officer Par-

rish that occurred while he was walking home one day. Officer

Parrish mistook Mr. Pullen for his brother and handcuffed Mr. Pul-

len to a tree, where red ants started biting him. Mr. Pullen told

Officer Parrish ants were biting him, but Officer Parrish said that

he didn’t “give a damn.” Mr. Pullen was handcuffed to the tree for

about five to ten minutes. The ant bites on Mr. Pullen’s leg got

infected, and he had to take medications.

On cross-examination, Mr. Pullen confirmed that he had

been “arrested twenty times” before 1991 and had been in and out

of jail. Mr. Pullen conceded that he never filed a complaint against

Officer Parrish after the incident.

Mr. Udell contacted Mr. Pullen before Kearse’s trial but did

not ask him to testify. Mr. Pullen would’ve been willing to testify

at Kearse’s trial and resentencing had he been asked to do so.

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15-15228 Opinion of the Court 33

5. Eric Jones

Eric Jones testified that he had multiple negative encounters

with Officer Parrish. One time, Mr. Jones was pulled over by a

female officer who told him to stay in his car while she waited for

another officer to arrive. When Officer Parrish arrived, Mr. Jones

got out of his car. Officer Parrish immediately “became extremely

authoritative” and demanded that Mr. Jones get in his car.

Officer Parrish and the female officer asked him to sign a

ticket that they had written. Mr. Jones said that he couldn’t read

the ticket because it was dark and he asked to read it in the light.

Officer Parrish told Mr. Jones that he didn’t need to know what the

ticket said and that he didn’t have the right to read it. As Mr. Jones

opened his door to get in the light and read the ticket, Officer Par-

rish got directly in Mr. Jones’s face, and Mr. Jones could “feel that

[Officer Parrish] wanted [Mr. Jones] to just do something to pro-

voke him.” Mr. Jones felt threatened and got back in his car.

Mr. Jones drove away but, “within minutes” of leaving, Officer Par-

rish pulled him over. Mr. Jones rolled his car window down four

inches and didn’t say anything because he felt that he was in dan-

ger. Officer Parrish told Mr. Jones he was “tailgating” and wrote

him a ticket.

Three weeks later, Officer Parrish drove alongside Mr. Jones

and yelled out the window for him to pull over. Officer Parrish

wrote Mr. Jones another ticket. After this encounter, Mr. Jones

filed a complaint with the Fort Pierce Police Department. Mr.

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34 Opinion of the Court 15-15228

Jones “wasn’t surprised a bit” when he found out that Officer Par-

rish had been killed.

On cross-examination, Mr. Jones admitted that he’d had

problems with the Fort Pierce Police Department before his en-

counter with Officer Parrish, but “really d[idn’t] recall” whether he

had reported that he “believe[d] [he was] being picked on by the

Fort Pierce Police Department.” Mr. Jones testified that he

“d[idn’t] recall” whether he’d been speeding when the female of-

ficer pulled him over but admitted that he’d been tailgating when

Officer Parrish pulled him over the first time. Mr. Jones also testi-

fied that he challenged the ticket that Officer Parrish issued him for

tailgating but that he was “found guilty” because “you always lose

in traffic court with a patrol officer.” And Mr. Jones testified that

Officer Parrish “didn’t make any threats against [him].”

Mr. Jones met with Mr. Udell before Kearse’s trial but he

didn’t want to testify. Mr. Jones was subpoenaed to appear at

Kearse’s resentencing but said that his testimony “wouldn’t [have]

happened” and, in any event, he wasn’t asked to testify. 4

4

Kearse also called two investigators to testify about their conversations with

Pastor James Newton. According to the investigators, Pastor Newton knew

Officer Parrish from church and thought that Officer Parrish “had a hot tem-

per,” “had a reputation for provoking people at traffic stops,” “pushed the en-

velope in every situation,” was “racist,” “[b]igoted[,] and ignorant,” and “used

derogatory slurs,” including the N-word. The state postconviction court de-

clined to consider the evidence of Pastor Newton’s comments about Officer

Parrish because the comments were “inadmissible hearsay.” Kearse does not

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15-15228 Opinion of the Court 35

6. Mr. Udell

Mr. Udell testified that he filed a formal demand for discov-

ery with the Fort Pierce Police Department before Kearse’s resen-

tencing. He “specifically only asked for complaints against [Officer]

Parrish,” and the police department gave him six citizen complaints

in response. Mr. Udell asked his investigators to follow up on the

complaints, and he and his investigators located and visited a cou-

ple of the complainants.

The complaints generally suggested that Officer Parrish

“was pretty aggressive in his handling of the citizens in the com-

munity” and that “he was a racist.” Mr. Udell considered having

some complainants testify at trial, but he decided against it because

what they were willing to testify to wasn’t sufficiently helpful. Mr.

Udell thought that “if you’re going to slam a victim, you’d better

be able to pull it off,” so he made an “educated strategy decision”

not to have the complainants testify because “it would[’ve] be[en]

more harmful than helpful.”

Mr. Udell recognized that if he introduced any of the com-

plaints against Officer Parrish, then the state could introduce evi-

dence that the police department found the complaints not credi-

ble. Mr. Udell was also concerned that the state could undermine

the complaints against Officer Parrish by faulting the complainants’

actions. One complainant, for example, told Officer Parrish that he

challenge the exclusion of the evidence of Pastor Newton’s statements on ap-

peal.

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36 Opinion of the Court 15-15228

was arrested for murder and had “shot a cop but . . . missed.” An-

other complainant had “called [Officer Parrish] a pinhead and used

the F word,” and the complainant’s wife later described his conduct

as being more offensive than Officer Parrish’s.

Mr. Udell thought that painting the victim as an aggressor

could “backfire” against Kearse, particularly in a capital case. Mr.

Udell understood that the jury wouldn’t place great emphasis on

the citizen complaints against Officer Parrish because police offic-

ers were often subject to complaints. And Mr. Udell knew from

experience that blaming a law enforcement officer for his own

murder would be a poor strategy in Indian River County:

[T]he analysis may have been different if we were in

New York, Philly, Boston, even West Palm Beach.

I’ve tried cases in Indian River County. They’re good

Americans, they’re solid Americans, they believe in

the integrity of law enforcement, and we didn’t be-

lieve we reached the tipping point where we could

convince them that they should think otherwise in

this case.

Although Mr. Udell recognized that a victim-blaming strat-

egy might work in some cases, he didn’t think he had an eviden-

tiary basis to do so in Kearse’s case. Mr. Udell decided not to go

with a vilification strategy because Pendleton, Kearse’s passenger

on the night of the murder, described Officer Parrish as being po-

lite, professional, and friendly. Pendleton had also testified that

Kearse told her Officer Parrish was polite. Moreover, the citations

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15-15228 Opinion of the Court 37

found in Officer Parrish’s car after the murder suggested that he

was going to let Kearse go.

Mr. Udell couldn’t remember if he ever obtained Officer

Parrish’s personnel file. Kearse’s postconviction counsel showed

Mr. Udell the personnel file, which included performance evalua-

tions that said that Officer Parrish “d[id] have a problem at times

with the public on normal every day type problems,” “ha[d] a ten-

dency to get impatient in his dealings with the public,” and tended

to be “excited.”

But the personnel file also contained positive material, in-

cluding a “Memorandum of Commendation” which recognized

Officer Parrish’s heroism in “helping a juvenile that was threaten-

ing suicide and d[e]fus[ing] the situation,” and performance evalu-

ations that rated Officer Parrish’s “meeting and dealing with the

public” as “satisfactory,” described Officer Parrish as “an asset to

the police department” who was “always working a hundred per-

cent on the streets,” and noted that Officer Parrish “donat[ed] time

to serve on the Honor Guard.”

After reviewing Officer Parrish’s personnel file, Mr. Udell

couldn’t say whether he would have done anything differently if he

had gotten it before resentencing. Mr. Udell conceded that the neg-

ative employee evaluations in the personnel file would’ve sup-

ported a blame-the-victim strategy at resentencing. But Mr. Udell

also recognized that the state would’ve rebutted that strategy by

highlighting the positive elements in Officer Parrish’s personnel

file.

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38 Opinion of the Court 15-15228

7. Mr. Norgard

Mr. Norgard testified that he had experience dealing with

cases involving the murder of a police officer and said that in some

cases it would be important to look at the police officer’s personnel

file. Mr. Norgard explained that a police officer’s personnel file’s

importance would depend on its relevancy to the case; in other

words, it would depend on the circumstances of the killing and

whether there was a dispute about the police officer being the ag-

gressor.

The state postconviction court denied Kearse’s motion for post-

conviction relief

After the evidentiary hearing, the state postconviction court

denied Kearse’s motion for postconviction relief. The state post-

conviction court denied Kearse’s ineffective assistance of counsel

claim that Mr. Udell failed to prepare for Dr. Martell’s testimony

because “it [was] apparent from the record that [Mr.] Udell knew

or anticipated the substance of Dr. Martell’s testimony despite not

having deposed Dr. Martell,” and reasoned that Mr. Udell couldn’t

“be held responsible for the ruling just weeks before commence-

ment of the second penalty phase compelling the [s]tate’s mental

health examination of Kearse.” The state postconviction court

concluded that Mr. Udell’s “strategy to proceed without deposing

Dr. Martell [was] reasonable under the circumstances.”

The state postconviction court also denied Kearse’s ineffec-

tive assistance of counsel claim that Mr. Udell failed to present

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15-15228 Opinion of the Court 39

evidence of Officer Parrish’s prior misconduct and difficulties in

dealing with the public. The state postconviction court determined

that Mr. Udell’s “strategy not to pursue the victim vilification de-

fense [was] reasonable” based on: (1) Mr. Udell’s “consideration of

alternatives”; (2) the absence of “stronger evidence of [Officer] Par-

rish’s prior misconduct”; and (3) the absence of “evidence that [Of-

ficer] Parrish abused Kearse during the traffic stop.” And the state

postconviction court found “no prejudice” in Mr. Udell’s failure “to

obtain and consider [Officer Parrish’s personnel file] prior to mak-

ing a strategic decision not to pursue a strategy vilifying [Officer]

Parrish” because “[a]n evaluation closer to the time of the traffic

stop noted satisfactory job performance” and “the file contained

other positive material concerning [Officer] Parrish’s performance

that the [s]tate could have used to rebut any claims of misconduct.”

Kearse’s appeal of the denial of his motion for postconviction re-

lief to the Florida Supreme Court and his petition to the Florida

Supreme Court for a writ of habeas corpus

Kearse appealed the denial of his motion for postconviction

relief to the Florida Supreme Court. Kearse argued that Mr. Udell

“rendered constitutionally ineffective assistance” during the resen-

tencing because he “fail[ed] to investigate and prepare for testi-

mony of the state’s mental health expert.” Kearse argued that Mr.

Udell “made no effort to investigate” Dr. Martell and he “did not

attempt to verify Dr. Martell’s credentials or ascertain what testi-

mony Dr. Martell was going to offer.” Mr. Udell, Kearse con-

tended, “had no idea what Dr. Martell was going to say” and left

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40 Opinion of the Court 15-15228

“Kearse’s expert witnesses . . . inadequately prepared to rebut Dr.

Martell’s opinions.”

Kearse also argued that Mr. Udell was ineffective “in two re-

spects in failing to investigate and present evidence of Officer Par-

rish’s prior misconduct as a law enforcement officer and Officer

Parrish’s difficulties in dealing with the public.” First, Kearse ar-

gued that “Mr. Udell neglected to obtain Officer Parrish’s complete

personnel file from the Fort Pierce Police Department which indi-

cated numerous deficiencies in Officer Parrish’s job performance

that were relevant to the issues presented in [Kearse’s] case.” And

second, Kearse argued that Mr. Udell “failed to fully investigate the

complaint reports and failed to call any of the complainants to tes-

tify.”

Finally, Kearse petitioned the Florida Supreme Court for a

writ of habeas corpus. Citing Atkins and Roper, Kearse argued that

his “low level of intellectual functioning and mental and emotional

impairments, in combination with his age at the time of the offense

(eighteen and three months),” rendered his death sentence uncon-

stitutional.

The Florida Supreme Court’s affirmance of the denial of Kearse’s

motion for postconviction relief and its denial of his petition for a

writ of habeas corpus

The Florida Supreme Court affirmed the denial of Kearse’s

motion for postconviction relief. See Kearse v. State, 969 So. 2d

976 (Fla. 2007). The Florida Supreme Court concluded that

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15-15228 Opinion of the Court 41

Kearse’s claim that Mr. Udell was ineffective for failing to investi-

gate and prepare for Dr. Martell’s testimony “fail[ed] to meet

Strickland’s requirements”:

The record shows that Dr. Martell examined Kearse

on the Thursday before the resentencing proceedings

began the following Monday, and that [Mr. Udell’s]

motion for a continuance was denied. Upon receipt

of Dr. Martell’s raw data and report, [Mr. Udell] for-

warded these to his experts and consulted with them

about the information. He also consulted the state

attorney regarding [Dr.] Martell’s upcoming testi-

mony. At the postconviction hearing, [Mr. Udell] tes-

tified that despite not having deposed [Dr.] Martell,

he knew what Dr. Martell’s testimony would be re-

garding statutory mitigators, what his test results sup-

posedly revealed, and where [Dr.] Martell’s testi-

mony would differ from his own experts’ testimony.

As evidenced from the foregoing summary, the evi-

dence shows that [Mr.] Udell correctly anticipated

[Dr.] Martell’s testimony. Kearse thus has not

demonstrated anything material that [Mr. Udell] did

not anticipate or could have done differently had he

deposed Dr. Martell.

Id. at 985–86.

The Florida Supreme Court also affirmed the denial of

Kearse’s claim that Mr. Udell was ineffective for failing to investi-

gate and present evidence of Officer Parrish’s prior misconduct and

difficulties dealing with the public. See id. at 986. The Florida

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42 Opinion of the Court 15-15228

Supreme Court found that Mr. Udell “considered this strategy [to

vilify Officer Parrish] and investigated citizen complaints against

Officer Parrish,” but, “after considering several factors—including

the refusal of some witnesses to testify, the lack of substance of

some testimony, and determinations by the Fort Pierce police that

formal complaints against [Officer Parrish] were unfounded—he

ultimately decided not to use this strategy.” Id. The Florida Su-

preme Court also found that Mr. Udell “considered the potential

that the strategy would backfire, especially in light of the facts, such

as Kearse’s firing thirteen bullets into [Officer Parrish] as [Officer

Parrish] pled for his life and [Pendleton’s] testimony that at all

times Officer Parrish was friendly and polite.” Id. Based on these

findings, the Florida Supreme Court concluded that Mr. Udell’s

“decision not to present this mitigation strategy was reasonable.”

Id.

The Florida Supreme Court determined that Kearse was not

prejudiced by Mr. Udell’s failure to obtain Officer Parrish’s person-

nel file because “the evidence at the postconviction hearing

showed that any evidence in the file supporting the vilification mit-

igation could have been countered at trial by other evidence in it

of Officer Parrish’s good reports and commendations.” Id.

Finally, the Florida Supreme Court denied Kearse’s petition

for a writ of habeas corpus because his death penalty didn’t violate

his Eighth Amendment rights under Atkins and Roper:

[Kearse] argues that because of his age, low level of

intellectual functioning, and mental and emotional

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15-15228 Opinion of the Court 43

impairments he cannot be executed under Atkins . . . ,

which prohibited execution of people with mental re-

tardation. However, Kearse’s own expert at the re-

sentencing testified that he was not mentally re-

tarded, and he presented no evidence at his postcon-

viction hearing that he was. Thus, his sentence is not

unconstitutional under Atkins.

Next, he argues that because he was only eighteen

years and three months old at the time of the crime

and had low level intellectual functioning and mental

and emotional impairments, he cannot be executed

under Roper . . . . Roper prohibited execution of any

defendant who was under age eighteen at the time of

the crime. Accordingly, Kearse does not qualify for

exemption from execution under Roper.

Id. at 991–92 (citation omitted).

Federal Postconviction Relief

After the Florida Supreme Court affirmed the denial of his

motion for postconviction relief and denied his petition for a writ

of habeas corpus, Kearse filed a 28 U.S.C. section 2254 petition in

the Southern District of Florida. Kearse argued that the Florida

Supreme Court unreasonably applied Strickland in affirming the

denial of his claims that Mr. Udell was ineffective at resentencing

because Mr. Udell: (1) failed to “investigate and prepare” for Dr.

Martell’s testimony; and (2) failed to “investigate and present evi-

dence of Officer Parrish’s prior misconduct and difficulties dealing

with the public.” Kearse also argued that the Florida Supreme

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44 Opinion of the Court 15-15228

Court unreasonably applied Atkins and Roper in determining that

his death sentence was not cruel and unusual because his “low level

of intellectual functioning and mental and emotional impairments,

in combination with his age at the time of the offense (eighteen and

three months), render[ed] him categorically less culpable than the

average criminal.”

The district court denied Kearse’s section 2254 petition. It

reviewed de novo his claim that Mr. Udell was ineffective for failing

to investigate and prepare for Dr. Martell’s testimony. The district

court reviewed this claim de novo, rather than under the Antiter-

rorism and Effective Death Penalty Act of 1996, because, it con-

cluded, the claim failed even under the harder-to-meet de novo

standard. Applying de novo review, the district court denied this

claim because Mr. Udell’s performance didn’t prejudice Kearse.

The district court reasoned that there was “little evidence” that the

“testimony from additional experts” at the postconviction hearing

“would have added anything additional to the penalty phase to

which Dr. Lipman or Dr. Petrilla did not already testify.” Thus, the

district court “f[ound] that there was not a reasonable probability

of a different result” “[g]iven the strong aggravation evidence pre-

sented that was in comparison with the mitigation evidence that

was presented and could have been presented had [Mr. Udell] not

rendered a deficient performance.”

The district court also denied Kearse’s claim that Mr. Udell

was ineffective for failing to investigate and present evidence of Of-

ficer Parrish’s prior misconduct and difficulties dealing with the

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15-15228 Opinion of the Court 45

public. The district court concluded that the Florida Supreme

Court did not unreasonably apply Strickland in finding that Mr.

Udell made a strategic decision not to vilify Officer Parrish because

“[t]he record is clear that Mr. Udell viewed not calling the citizen

complainant witnesses to the stand as a strategic one.” And, the

district court wrote, the Florida Supreme Court did not unreason-

ably apply Strickland in concluding that Mr. Udell’s strategic deci-

sion was reasonable because Mr. Udell made the decision based on

his and his investigators’ interviews of the witnesses and his deter-

mination that their testimony “would[’ve] be[en] more harmful

than helpful.” The district court also concluded that Kearse did not

show that the Florida Supreme Court unreasonably applied Strick-

land by determining that Mr. Udell’s failure to obtain Officer Par-

rish’s personnel file didn’t prejudice Kearse. That’s because Kearse

“offered no evidence of what or how law enforcement [officers]

would have testified at trial had Mr. Udell subpoenaed Officer Par-

rish’s personnel file.”

Finally, the district court denied Kearse’s claim that his death

sentence was cruel and unusual because of his low level of intellec-

tual functioning, his mental and emotional impairments, and his

age at the time of the offense. The district court concluded that the

Florida Supreme Court didn’t unreasonably apply Atkins and

Roper in rejecting Kearse’s constitutional challenge to his death

sentence because “there [was] no clearly established federal law

which provide[d] that it would be cruel and unusual punishment

for someone who is close in age to that of a juvenile and close in

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46 Opinion of the Court 15-15228

intelligence quotient to someone with mental retardation to be

sentenced to death.”

Kearse sought leave to appeal, and the district court granted

a certificate of appealability on the issue of whether Mr. Udell was

ineffective “due to his failure to investigate and prepare for testi-

mony of the [s]tate’s mental health expert.” We later expanded the

certificate to include whether Mr. Udell “unreasonably failed to in-

vestigate and present evidence of Officer Parrish’s prior miscon-

duct and difficulties dealing with the public” and whether Kearse’s

death sentence “constitutes cruel and unusual punishment in vio-

lation of the Eight and Fourteenth Amendments to the United

States Constitution.”

STANDARD OF REVIEW

We review a district court’s denial of a section 2254 petition

de novo. Smith v. Comm’r, Ala. Dept’ of Corr., 924 F.3d 1330, 1336

(11th Cir. 2019). Under the Antiterrorism and Effective Death Pen-

alty Act, federal courts may not grant a section 2254 petition on any

claim that was adjudicated on the merits in state court unless the

state court’s adjudication “was contrary to, or involved an unrea-

sonable application of, clearly established Federal law, as deter-

mined by the Supreme Court of the United States,” or “was based

on an unreasonable determination of the facts in light of the evi-

dence presented in the [s]tate court proceeding.” 28 U.S.C.

§ 2254(d)(1)–(2). “[W]e must presume the state court’s factual find-

ings to be correct unless the petitioner rebuts that presumption by

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15-15228 Opinion of the Court 47

clear and convincing evidence.” DeBruce v. Comm’r, Ala. Dep’t

of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (citing 28 U.S.C.

§ 2254(e)(1)); see Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277,

1287 (11th Cir. 2012) (“[O]ur review of findings of fact by the state

court is even more deferential than under a clearly erroneous

standard of review.” (quotation omitted)).

Our focus under section 2254(d) is on the “last reasoned”

state court decision. McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252,

1261 n.12 (11th Cir. 2009). The question is not whether we believe

that decision was “incorrect” but whether the decision “was unrea-

sonable—a substantially higher threshold.” Schriro v. Landrigan,

550 U.S. 465, 473 (2007). A state court’s decision is reasonable “so

long as fairminded jurists could disagree on the correctness of the

. . . decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quo-

tation omitted). “If this standard is difficult to meet, that is because

it was meant to be.” Id. at 102. “[E]ven a strong case for relief does

not mean the state court’s contrary conclusion was unreasonable.”

Id. “Section 2254(d) reflects the view that habeas corpus is a guard

against extreme malfunctions in the state criminal justice systems,

not a substitute for ordinary error correction through appeal.” Id.

at 102–03 (quotation omitted). To obtain relief, “a state prisoner

must show that the state court’s ruling on the claim being pre-

sented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law be-

yond any possibility for fairminded disagreement.” Id. at 103.

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48 Opinion of the Court 15-15228

DISCUSSION

Our review is limited to the three issues in Kearse’s certifi-

cate of appealability. Murray v. United States, 145 F.3d 1249, 1251

(11th Cir. 1998) (“[I]n an appeal brought by an unsuccessful habeas

petitioner, appellate review is limited to the issues specified in the

[certificate of appealability].”). First, we explain why the Florida

Supreme Court did not unreasonably apply Strickland in affirming

the denial of Kearse’s claim that Mr. Udell was ineffective for failing

to investigate and prepare for Dr. Martell’s testimony. Second, we

explain why the Florida Supreme Court did not unreasonably ap-

ply Strickland in affirming the denial of Kearse’s claim that Mr.

Udell was ineffective for failing to investigate and present evidence

of Officer Parrish’s prior misconduct and difficulties dealing with

the public. And third, we explain why the Florida Supreme Court

did not unreasonably apply Atkins and Roper in denying Kearse’s

Eighth Amendment claim that his death sentence was cruel and

unusual because he had low-level intellectual functioning, mental

and emotional impairments, and was eighteen years old when he

murdered Officer Parrish.

Kearse’s Claim That Mr. Udell Was Ineffective in Investigating

and Preparing for Dr. Martell’s Testimony

As to Kearse’s claim that Mr. Udell was ineffective for failing

to investigate and prepare for Dr. Martell’s testimony, the Florida

Supreme Court concluded that Mr. Udell was not deficient because

“the evidence show[ed] that [he] correctly anticipated

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15-15228 Opinion of the Court 49

[Dr.] Martell’s testimony.” Kearse, 969 So. 2d at 986. And the Flor-

ida Supreme Court concluded that there was no prejudice to

Kearse because he had “not demonstrated anything material that

[Mr. Udell] did not anticipate or could have done differently had he

deposed Dr. Martell.” Id. Kearse argues that the Florida Supreme

Court unreasonably applied Strickland’s performance and preju-

dice prongs.

Strickland

Under Strickland, “[a] petitioner asserting a claim of ineffec-

tive assistance of counsel must demonstrate both deficient perfor-

mance and prejudice—that counsel’s performance ‘fell below an

objective standard of reasonableness’ and that ‘there is a reasonable

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

of the proceeding would have been different.’” Hitchcock v. Sec’y,

Fla. Dep’t of Corr., 745 F.3d 476, 485 (11th Cir. 2014) (quoting

Strickland, 466 U.S. at 687–88). “[T]he failure to demonstrate ei-

ther deficient performance or prejudice is dispositive of the claim

against the petitioner,” and “there is no reason for a court deciding

an ineffective assistance claim to address both components of the

inquiry if the defendant makes an insufficient showing on one.”

Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir.

2009) (alteration adopted) (quoting Strickland, 466 U.S. at 697).

The performance inquiry is “highly deferential,” and courts

must not succumb to the “all too tempting” impulse “to conclude

that a particular act or omission of counsel was unreasonable” after

counsel’s defense “has proved unsuccessful.” Strickland, 466 U.S.

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50 Opinion of the Court 15-15228

at 689. “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of rea-

sonable professional judgment.” Id. at 690. “No absolute rules dic-

tate what is reasonable performance for lawyers.” Chandler v.

United States, 218 F.3d 1305, 1317 (11th Cir. 2000) (citing Strick-

land, 466 U.S. at 688–89). Instead, “the performance inquiry must

be whether counsel’s assistance was reasonable considering all the

circumstances.” Strickland, 466 U.S. at 688 (emphasis added). In

other words, if a reasonably competent attorney in counsel’s shoes

could—but not necessarily would—have performed the same, then

the representation was adequate. See White v. Singletary, 972 F.2d

1218, 1220 (11th Cir. 1992) (“We ask only whether some reasonable

lawyer at the trial could have acted, in the circumstances, as de-

fense counsel acted at trial.”); see also Harrington, 562 U.S. at 110

(“Strickland does not guarantee perfect representation, only a rea-

sonably competent attorney.” (quotation omitted)); Rompilla v.

Beard, 545 U.S. 374, 381 (2005) (referring to “[a] standard of reason-

ableness applied as if one stood in counsel’s shoes”).

In reviewing a state court’s determination that an attorney’s

performance was not unreasonable, we decide only whether the

state court’s conclusion about reasonableness was itself reasonable.

See 28 U.S.C. § 2254(d)(1). We therefore give “both the state court

and the defense attorney the benefit of the doubt.” Woods v.

Etherton, 578 U.S. 113, 117 (2016) (quotation omitted). In other

words, “because the standards created by Strickland and [sec-

tion] 2254(d) are both highly deferential,” our review is “doubly”

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15-15228 Opinion of the Court 51

deferential “when the two apply in tandem.” Jenkins v. Comm’r,

Ala. Dep’t of Corr., 963 F.3d 1248, 1265 (11th Cir. 2020) (alteration

adopted and quotation omitted).

The prejudice inquiry doesn’t ask whether “the errors had

some conceivable effect on the outcome of the proceeding.” See

Strickland, 466 U.S. at 693. Instead, “the prejudice inquiry asks

‘whether there is a reasonable probability that, absent the errors,

the sentencer—including an appellate court, to the extent it inde-

pendently reweighs the evidence—would have concluded that the

balance of aggravating and mitigating circumstances did not war-

rant death.’” Hitchcock, 745 F.3d at 485 (quoting Strickland, 466

U.S. at 695).

Deficiency

Kearse argues that the Florida Supreme Court unreasonably

applied Strickland’s performance prong because Mr. Udell:

(1) didn’t depose Dr. Martell, didn’t attend Dr. Martell’s evaluation

of Kearse, and thus “had no idea what Dr. Martell was going to

say”; and (2) didn’t adequately prepare Kearse’s expert witnesses to

rebut Dr. Martell’s opinions. But we can’t say that the Florida Su-

preme Court’s conclusion that Mr. Udell performed reasonably un-

der the circumstances is beyond any possibility for fairminded dis-

agreement.

The record shows that, with the limited time the state trial

court gave him to prepare, Mr. Udell investigated Dr. Martell’s tes-

timony and knew what he was going to say at resentencing. Mr.

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52 Opinion of the Court 15-15228

Udell testified that he knew what Dr. Martell was going to say ei-

ther because he read Dr. Martell’s report or because he had infor-

mal conversations with Dr. Martell or the state attorney before

Kearse’s resentencing. Dr. Martell also thought that he and Mr.

Udell might’ve had “an informal conversation about the scope of

[his] testimony before [he] took the stand.” And Mr. Udell said that

he would’ve investigated Dr. Martell’s background by “ask[ing] the

lawyers that [he] kn[e]w who had been doing this kind of work for

many years” if they knew of Dr. Martell. Mr. Udell also attended

Dr. Martell’s examination of Kearse and only left after Dr. Martell

said that he preferred to do the examination alone with Kearse. Mr.

Udell sent the results of Dr. Martell’s examination to Kearse’s ex-

perts and Mr. Udell “knew going into trial exactly what Dr. Martell

was going to say as to which statutory aggravators and/or mitiga-

tors existed, and what his test results supposedly revealed, and

where he disagreed with Dr. Petrilla.”

In addition to Mr. Udell’s testimony at the postconviction

hearing, his cross-examination of Dr. Martell at resentencing

showed that Mr. Udell knew what Dr. Martell was going to say.

For example, Mr. Udell was ready to challenge Dr. Martell’s opin-

ion that Kearse didn’t have fetal alcohol effect by getting Dr. Mar-

tell to admit that a mother drinking alcohol while pregnant could

cause significant detrimental effects on her child and lead to brain

dysfunction. He drove that point home by having Dr. Martell ad-

mit that, if his wife were pregnant, he wouldn’t want her to drink

alcohol like Kearse’s mother had. Mr. Udell also highlighted that

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15-15228 Opinion of the Court 53

Dr. Martell hadn’t studied the effects of alcohol on animals or prac-

ticed neuropharmacology.

Mr. Udell was also ready to challenge Dr. Martell’s opinion

that Kearse was capable of conforming his conduct to the require-

ments of the law by: (1) getting Dr. Martell to admit that he

“hadn’t thought about” when Kearse had formed the intent to kill

Officer Parrish; and (2) highlighting facts that contradicted Dr.

Martell’s opinion that Kearse was determined to avoid arrest—in-

cluding that Kearse was unarmed when Officer Parrish pulled him

over and that Kearse confessed that he killed Officer Parrish as soon

as he met with police.

And Mr. Udell prepared Kearse’s expert witnesses to rebut

Dr. Martell’s opinions. Despite the state trial court’s denials of his

motions to continue resentencing and the fact that he only had the

data from Dr. Martell’s examination for three days before resen-

tencing, Mr. Udell gave Dr. Martell’s data to his experts who pro-

vided testimony that rebutted Dr. Martell’s opinions. For example,

Mr. Udell used Dr. Lipman to relay Dr. Levine’s opinion that

Dr. Martell’s test results showed that Kearse’s intellectual function-

ing was not where it should be. Mr. Udell also used Dr. Lipman to

rebut Dr. Martell’s opinion that Kearse was malingering by relay-

ing Dr. Friedman’s opinion that Kearse’s F Scale results did not

show that Kearse was malingering. And Mr. Udell similarly used

Dr. Petrilla’s opinion that Kearse’s elevated F Scale did not indicate

malingering to rebut Dr. Martell’s opinion that Kearse was malin-

gering. As the state postconviction court noted, it was “evident . . .

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54 Opinion of the Court 15-15228

from Dr. Petrilla’s and Dr. Lipman’s testimony during [resentenc-

ing] that [Mr.] Udell anticipated that Kearse’s personality profile

would be at issue, particularly with respect to any indication of ma-

lingering.”

Kearse contends that Mr. Udell’s decision not to depose Dr.

Martell and to instead rely on informal conversations with Dr. Mar-

tell or the state attorney “can hardly suffice for the purposes of de-

fending a capital case” and “[was] not a strategy.” But there is no

categorical rule requiring defense attorneys to depose a witness in

a criminal case. Neither Alabama5 nor Georgia 6 routinely permit

5

“There is no constitutional right to discovery in a criminal case in Alabama.”

Ex parte State, 287 So. 3d 384, 394 (Ala. 2018) (quotation omitted). Deposi-

tions may be taken in criminal cases only by court order under “exceptional

circumstances” pursuant to a motion of the party offering the witness, Ala. R.

Crim. P. 16.6(a); see also Ala. Code § 12-21-264, or by agreement of the parties

and with consent of the court, Ala. R. Crim. P. 16.6(g).

6

In Georgia, “[n]o broad right of discovery exists . . . in criminal cases; the

common law recognized no right of discovery in such cases, and it has been

held that unless introduced by appropriate legislation, the doctrine of discov-

ery is a complete and utter stranger to criminal procedure.” See Sears v. State,

356 S.E.2d 72, 76 (Ga. Ct. App. 1987) (quotation omitted), overruled on other

grounds by State v. Lane, 838 S.E.2d 808 (Ga. 2020). Although criminal de-

fendants have a right to interview a state witness before trial, that right is sub-

ject to the witness’s consent. See id. Depositions may be taken in criminal

cases only by court order under certain limited circumstances, see Ga. Code

Ann. § 24-13-130, or by agreement of the parties and with consent of the court,

see id. § 24-13-138; see also Evans v. State, 503 S.E.2d 344, 346–37 (Ga. Ct. App.

1998) (“The General Assembly has prohibited trial courts from ordering dep-

ositions in criminal cases except in several specific situations . . . .”).

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15-15228 Opinion of the Court 55

depositions in criminal cases, and we don’t understand Kearse to

argue that every criminal defense attorney in those states provides

ineffective assistance of counsel. As Kearse’s own expert testified,

the decision to depose the state’s expert would be “within the tac-

tical and strategic province of the attorney” and “would vary from

case to case.” Kearse’s expert also said that an attorney could de-

cide against deposing an expert because there may be things “you

don’t want the other side to know about.”

That was Mr. Udell’s strategy here. Mr. Udell explained that

he was a “firm believer of doing very little discovery on the record

in the presence of the [s]tate [a]ttorney” because “[e]very time you

take a deposition, they learn one thing about your case that but for

your deposition they wouldn’t have known.” So, instead of depos-

ing Dr. Martell, Mr. Udell learned what Dr. Martell was going to

say by speaking informally with the state attorney or Dr. Martell,

talking with lawyers in the community, and consulting his experts.

And by not taking the deposition, he avoided divulging details

about the defense. We can’t say that no fairminded jurist could

conclude, as the Florida Supreme Court did, that Mr. Udell reason-

ably decided not to depose Dr. Martell. See Messer v. Florida, 834

F.2d 890, 896–97 (11th Cir. 1987) (concluding that defense counsel’s

decision not to depose the pathologist who performed an autopsy

on the victim wasn’t “outside the wide range of professionally com-

petent assistance” where “[t]he defense counsel testified in state

court that he had full access to the prosecutor’s files, which pre-

sumably included the pathologist’s report” (quotation omitted));

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56 Opinion of the Court 15-15228

Turner v. Williams, 35 F.3d 872, 898 (4th Cir. 1994) (concluding

that defense counsels’ failure to depose the state’s witnesses wasn’t

deficient where, “from their conversations with the prosecutor,

[defense counsel] were aware of the substance of the witnesses’ an-

ticipated testimony”), overruled on other grounds by O’Dell v.

Netherland, 95 F.3d 1214 (4th Cir. 1996); Eggleston v. United

States, 798 F.2d 374, 376 (9th Cir. 1986) (“A claim of failure to in-

terview a witness may sound impressive in the abstract, but it can-

not establish ineffective assistance when the person’s account is

otherwise fairly known to defense counsel.” (quoting United States

v. Decoster, 624 F.2d 196, 209 (D.C. Cir. 1976) (en banc))).

Kearse also asserts that Mr. Udell “did not attend Dr. Mar-

tell’s evaluation of Kearse, despite having argued [to the state trial

court] that it was necessary to do so.” But Kearse’s expert testified

that whether to attend the state’s expert’s evaluation “would be a

tactical and strategic decision by the attorney.” And Mr. Udell did

attend Dr. Martell’s examination of Kearse. Dr. Martell told Mr.

Udell that he preferred to conduct the examination alone with

Kearse. Mr. Udell honored that request, but only after he got Dr.

Martell to question Kearse about the facts of the murder so that

Mr. Udell could object on the record to that part of the examina-

tion.

Finally, Kearse argues that Mr. Udell failed to adequately

prepare his expert witnesses to rebut Dr. Martell’s opinions. But,

as we’ve already explained, the record shows that Mr. Udell

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15-15228 Opinion of the Court 57

prepared Dr. Lipman and Dr. Petrilla to rebut Dr. Martell’s opinion

that Kearse was malingering.

Under our “doubly” deferential standard of review, we can’t

say that the Florida Supreme Court unreasonably concluded that

Mr. Udell’s performance was reasonable under the circumstances.

See Jenkins, 963 F.3d at 1265. Because the Florida Supreme Court

did not unreasonably apply Strickland’s performance prong, we

don’t need to address the prejudice prong because Kearse’s failure

to show deficient performance is “dispositive.” Windom, 578 F.3d

at 1248; see Ledford v. Warden, Ga. Diagnostic Prison, 975 F.3d

1145, 1160 (11th Cir. 2020) (“We cannot . . . disturb the state habeas

court’s conclusion that trial counsel’s performance was not defi-

cient, and we have no need to consider whether counsel’s actions

prejudiced [the petitioner’s] defense.”).

Kearse’s Claim That Mr. Udell Was Ineffective in Failing to

Investigate and Present Evidence of Officer Parrish’s Prior

Misconduct and Difficulties Dealing with the Public

As to Kearse’s claim that Mr. Udell was ineffective for failing

to investigate and present evidence of Officer Parrish’s prior mis-

conduct and difficulties dealing with the public, the Florida Su-

preme Court concluded that Mr. Udell’s decision not to vilify Of-

ficer Parrish was a reasonable strategic choice and that Kearse had

“not demonstrated prejudice from [Mr. Udell’s] failure to obtain

the personnel record.” Kearse, 969 So. 2d at 986. Kearse argues

that Mr. Udell was “deficient in two respects”: (1) he failed to in-

vestigate all of the complaints against Officer Parrish and to call any

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58 Opinion of the Court 15-15228

witnesses who had filed complaints to testify about their negative

experiences with Officer Parrish; and (2) he “neglected to obtain

Officer Parrish’s complete personnel file,” which “indicated nu-

merous deficiencies in Officer Parrish’s job performance that were

relevant to the issues presented in Kearse’s case.” The Florida Su-

preme Court decided the first part of this challenge on Strickland’s

performance prong and the second part on the prejudice prong.

See id. We conclude that the Florida Supreme Court didn’t unrea-

sonably determine that Mr. Udell made an informed strategic deci-

sion not to call citizen complainants to testify, and that Kearse

wasn’t prejudiced by Mr. Udell’s failure to obtain Officer Parrish’s

personnel file.

Mr. Udell’s failure to investigate and present evidence of citizen

complaints against Officer Parrish

Kearse argues that Mr. Udell “tried to pass his negligence [in

not presenting evidence of citizen complaints against Officer Par-

rish] as a ‘strategy decision.’” According to Kearse, Mr. Udell “did

not have the information necessary to make a ‘strategic decision’

to abandon this defense” because he “fail[ed] to investigate and pre-

sent evidence of several formal complaints against Officer Parrish,

and others who [Officer Parrish] had threatened but did not make

formal complaints.” But it wasn’t unreasonable for the Florida Su-

preme Court to find that Mr. Udell made an informed strategic de-

cision. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)

(en banc) (“Which witnesses, if any, to call, and when to call them,

is the epitome of a strategic decision, and it is one that we will

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15-15228 Opinion of the Court 59

seldom, if ever, second guess.”). That’s exactly what Mr. Udell tes-

tified to: that he had made an “educated strategy decision.” And

Kearse has failed to prove—let alone by clear and convincing evi-

dence—that the Florida Supreme Court’s determination was un-

reasonable or incorrect. See 28 U.S.C. § 2254(d)(2), (e)(1); Kim-

brough v. Sec’y, DOC, 565 F.3d 796, 804 (11th Cir. 2009) (“[A] state

court’s determination that a decision of counsel is ‘tactical’ is a

question of fact that we review under a clear and convincing evi-

dence standard.”).

Mr. Udell investigated the citizen complaints and decided

the evidence was unhelpful. Mr. Udell requested and received cop-

ies of citizen complaints that had been filed against Officer Parrish

and he and Investigator Evans interviewed some of the citizens

who had negative encounters with Officer Parrish. For example,

Mr. Pullen and Mr. Jones testified that they met with Mr. Udell be-

fore Kearse’s trial. But Mr. Pullen had never filed a complaint

against Officer Parrish, had been “arrested twenty times,” and had

been in and out of jail. And Mr. Jones said that he “would not have

wanted” to testify in Kearse’s trial. Another complainant had

“called [Officer Parrish] a pinhead and used the F word” and his

wife later described his conduct as being more offensive than Of-

ficer Parrish’s. Mr. Udell recognized that if he introduced any of

the complaints, the state would have undermined them by faulting

the complainants’ actions and introducing evidence that the police

department found the complaints not credible.

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60 Opinion of the Court 15-15228

Based on his review of the complaints in the Fort Pierce Po-

lice Department’s file, and having interviewed some of the com-

plainants, Mr. Udell made an “educated strategy decision” not to

have any of the witnesses testify about their encounters with Of-

ficer Parrish because “it would[’ve] be[en] more harmful than help-

ful.” This wasn’t an unreasonable strategic decision because a vili-

fication strategy would’ve been contrary to Mr. Udell’s mitigation

strategy, his understanding of Indian River County jurors’ views on

law enforcement, and the facts and circumstances of Kearse’s case.

First, blaming Officer Parrish would’ve worked against Mr.

Udell’s strategy at resentencing of establishing statutory and non-

statutory mental health mitigation. Mr. Udell rebutted the state’s

closing argument by conceding that no one was to blame other

than Kearse:

[The state] told you a lot about what I’m going to tell

you. You listen to what I have to tell you and see if I

blame anybody. There’s nobody to blame but Billy

Kearse. He’s the only person on trial here. You’re

not going to hear me blame [Kearse’s mother] or

blame the school system or blame [Officer Parrish].

I’m certainly not going to try and minimize his re-

sponsibility. He’s here, isn’t he? He’s been convicted

of first degree murder. The only question is, does he

live the rest of his life in prison or do we execute him?

There’s no minimalizing responsibility, not from me,

I promise you that.

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15-15228 Opinion of the Court 61

Mr. Udell also focused on the reasonableness of Officer Par-

rish’s actions to emphasize how Kearse’s mental disabilities caused

him to react to situations differently than normal people:

No doubt [Officer Parrish] had every right to be mad.

He gave him every chance he could. Let’s think

about where he was coming from and, therefore,

what his attitude and what he was conveying to

[Kearse]. After getting jerked around for about

[twenty] minutes he’d had it. You would too. And I

believe it’s true, I think the evidence supports it, that

he said to [Kearse], get out of the car. What was it . . .

[Pendleton] said he said? If you just tell me that your

license is suspended, I’ll give you a couple citations

and let you go. The normal person would have done

that. But that’s [Kearse]. He don’t [sic] understand.

He doesn’t reason like you do or I do.

Mr. Udell would’ve undermined his strategy of showing that

Kearse murdered Officer Parrish because of Kearse’s severe emo-

tional impairments, poor judgment, brain damage, impulsivity,

and inability to reason abstractly had Mr. Udell tried to shift blame

to Officer Parrish by calling witnesses to testify about their negative

encounters with him. See Tharpe v. Warden, 834 F.3d 1323, 1343

(11th Cir. 2016) (“[Trial counsel] sought to portray Tharpe as a

good guy who made a mistake at an emotionally fraught time but

who nonetheless deserved the jury’s mercy. The efficacy of that

approach may well have been diminished had [trial counsel] simul-

taneously presented testimony portraying Tharpe as an alcoholic

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62 Opinion of the Court 15-15228

with low intellectual functioning and a troubled past. Instead of

crediting Tharpe’s unfortunate circumstances as making him less

culpable in the murder . . . , the jury could have concluded instead

that Tharpe was not willing to accept responsibility for his actions,

thus sinking Tharpe’s credibility and undermining both the good-

character defense and the diminished-capacity defense.”).

Second, Mr. Udell knew from experience that a strategy of

blaming Officer Parrish wouldn’t have played well with the jury.

Mr. Udell understood that jurors in Indian River County were dif-

ferent than jurors in “New York, Philly, Boston, even West Palm

Beach”—they “believe[d] in the integrity of law enforcement” and

wouldn’t be receptive to attacks on Officer Parrish’s character. He

also knew that the jury wouldn’t place great emphasis on the com-

plaints against Officer Parrish because police officers were often

subject to complaints. In other words, Mr. Udell concluded that

blaming Officer Parrish for his own murder was likely to backfire.

See, e.g., Black v. Workman, 682 F.3d 880, 904 (10th Cir. 2012)

(“Any effort by counsel to blame the victims would be as likely to

backfire as to diminish [the defendant]’s culpability in the jury’s

eyes.”); Defazio v. Sweeney, 2019 WL 981646, at *7 (D.N.J. Feb. 28,

2019) (“[R]easonable counsel could have perceived that pursuing

. . . a blame-the-victim strategy[] before the jury could have seri-

ously backfired.”); Howell v. State, 877 So. 2d 697, 703 (Fla. 2004)

(“[A] concern about being perceived as blaming the victim for his

or her own death is a valid reason for declining to introduce partic-

ular evidence.”).

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15-15228 Opinion of the Court 63

And third, Mr. Udell determined that a victim-blaming strat-

egy wasn’t possible under the facts and circumstances of Kearse’s

case. At Kearse’s trial, Pendleton—Kearse’s passenger on the night

of the murder—testified that Officer Parrish said he would let

Kearse go if Kearse gave him his real name and that Officer Parrish

hadn’t abused Kearse “in any way.” Pendleton testified that when

she asked Kearse why he shot Officer Parrish, Kearse “said that his

probation was suspended and the police were looking for him al-

ready.” Mr. Udell could have reasonably concluded that blaming

Officer Parrish wouldn’t have worked because of the evidence that

Officer Parrish wasn’t hostile or abusive toward Kearse. See

Freund v. Butterworth, 165 F.3d 839, 866–69 (11th Cir. 1999) (en

banc) (rejecting the argument that counsel could’ve pursued an al-

ternative strategy of shifting the blame to the codefendant because

the strategy was “not realistic in view of the uncontradicted testi-

mony of the eyewitnesses”); Oliver v. Wainwright, 782 F.2d 1521,

1525 (11th Cir. 1986) (rejecting the argument that counsel could’ve

pursued an alternative strategy of shifting the blame to the code-

fendant—“the alternative strategy . . . was not an option available

to trial counsel because the facts d[id] not support the theory”).

Kearse argues that Mr. Udell was deficient for not “conduct-

ing a complete investigation of Officer Parrish’s conduct.” But Mr.

Udell obtained every citizen complaint that had been filed against

Officer Parrish. After reviewing the complaints, Mr. Udell and In-

vestigator Evans interviewed “some” of those citizens, including

Mr. Jones, who didn’t want to testify, and the citizen who called

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64 Opinion of the Court 15-15228

Officer Parrish a “pinhead” and used the “F word.” Mr. Udell even

contacted Mr. Pullen, who had not filed a complaint with the Fort

Pierce Police Department, to learn about his negative encounter

with Officer Parrish. But Mr. Pullen had been arrested twenty

times, had been in and out of jail, and hadn’t filed a complaint de-

spite claiming to have been handcuffed to a tree and bitten by red

ants. Strickland did not require Mr. Udell to “leave no stone un-

turned and no witness unpursued.” Raulerson v. Warden, 928 F.3d

987, 997 (11th Cir. 2019) (quotation omitted). Strickland, instead,

required a reasonable investigation under the circumstances, see

Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d 1195, 1204–05 (11th

Cir. 2016) (“Counsel’s investigation does not fall below Strickland’s

standard so long as a reasonable lawyer could have decided, under

the circumstances, not to investigate particular evidence.” (altera-

tions adopted and quotation omitted)), and that is what Mr. Udell

did. Once he reviewed every complaint in the Fort Pierce Police

Department’s file, found additional complaining witnesses, and

talked to them about their negative experiences with Officer Par-

rish—in other words, after he conducted a reasonable investigation

under the circumstances—Mr. Udell made a strategic decision not

to go with a blame-the-victim strategy that was inconsistent with

the mental health mitigation, would have tuned out the jury, and

wasn’t supported by the evidence. The Florida Supreme Court did

not unreasonably apply Strickland in determining that Mr. Udell

was not deficient for making that strategic decision. See Nance v.

Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1302 (11th Cir.

2019) (“It is especially difficult to succeed with an ineffective

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15-15228 Opinion of the Court 65

assistance claim questioning the strategic decisions of trial counsel

who were informed of the available evidence.”).

Mr. Udell’s failure to obtain Officer Parrish’s personnel file

Kearse argues that Mr. Udell’s failure to obtain Officer Par-

rish’s personnel file prejudiced him because the evidence it con-

tained would have, “[a]t a minimum, . . . contributed to Kearse’s

mitigation case” and that “there is, at the very least, a reasonable

probability that . . . the result of the proceedings would have been

different.” But the Florida Supreme Court determined that Kearse

wasn’t prejudiced by the failure to get the personnel file because

“any evidence in the file supporting the vilification mitigation

could have been countered at trial by other evidence in it of Officer

Parrish’s good reports and commendations.” Kearse, 969 So. 2d at

986. The Florida Supreme Court’s prejudice determination wasn’t

an unreasonable application of Strickland.

The Florida Supreme Court’s prejudice finding wasn’t un-

reasonable because Officer Parrish’s personnel file would have un-

dermined a blame-the-victim strategy. The personnel file con-

tained evidence that Officer Parrish was an outstanding police of-

ficer. He had a “Memorandum of Commendation,” which recog-

nized Officer Parrish’s heroism in “helping a juvenile that was

threatening suicide and d[e]fus[ing] the situation.” And the person-

nel file had performance evaluations that rated Officer Parrish’s

“meeting and dealing with the public” as “satisfactory,” described

Officer Parrish as “an asset to the police department” who was “al-

ways working a hundred percent on the streets,” and noted that

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66 Opinion of the Court 15-15228

Officer Parrish “donat[ed] time to serve on the Honor Guard.”

Had Mr. Udell obtained the personnel file and introduced it into

evidence, the state would’ve used the positive material about Of-

ficer Parrish to rebut any claims of misconduct.

The Florida Supreme Court’s prejudice determination also

wasn’t unreasonable because the facts of Kearse’s case didn’t fit a

blame-the-victim strategy. As Kearse’s expert testified, a police of-

ficer’s personnel file’s relevance would depend on whether there

was a dispute about the police officer being the aggressor. And

here, there was no evidence that Officer Parrish was the aggressor.

The uncontradicted testimony from Pendleton was that Officer

Parrish hadn’t mistreated Kearse. She testified that Officer Parrish

said he would let Kearse go if Kearse gave him his real name, that

Officer Parrish hadn’t abused Kearse “in any way,” and that Kearse

told her that he shot Officer Parrish because “his probation was

suspended and the police were looking for him already,” not be-

cause of anything Officer Parrish did.

Because the personnel file contained evidence that would’ve

undermined a blame-the-victim strategy, and because there was no

evidence that Officer Parrish mistreated Kearse, the Florida Su-

preme Court didn’t unreasonably apply Strickland when it deter-

mined that there was no reasonable probability of a different result

had Mr. Udell obtained Officer Parrish’s personnel file.

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15-15228 Opinion of the Court 67

Kearse’s Claim That His Death Sentence Constitutes Cruel and

Unusual Punishment in Violation of the Eighth and Fourteenth

Amendments

The Florida Supreme Court concluded that Kearse’s death

sentence was constitutional under Atkins and Roper because he

was neither intellectually disabled nor younger than eighteen at the

time of the murder. Kearse, 969 So. 2d at 981, 990–92. Kearse ar-

gues that the Florida Supreme Court unreasonably applied Atkins

and Roper because it “only viewed this matter in light of numbers”

and “all of[] the Eighth Amendment concerns discussed in Atkins

and Roper are equally applicable to Kearse.” 7 We disagree.

“A decision is ‘contrary to’ clearly established federal law if

the state court applied a rule that contradicts governing Supreme

Court precedent, or if it reached a different conclusion than the Su-

preme Court did in a case involving materially indistinguishable

facts.” James v. Warden, 957 F.3d 1184, 1190 (11th Cir. 2020) (cit-

ing Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). “A state court

decision involves an ‘unreasonable application’ of clearly estab-

lished federal law if the court identifies the correct legal principle

7

Although Kearse argues that the Florida Supreme Court “misconstrued” and

“misse[d] the gravamen” of this claim, he concedes that the claim is subject to

deference under the Antiterrorism and Effective Death Penalty Act. Indeed,

rather than arguing the issue de novo, he specifically argues that the Florida

Supreme Court’s decision was “contrary to and an unreasonable application

of Atkins . . . , Roper . . . , and the Eighth Amendment.” Like Kearse, we focus

only on whether the Florida Supreme Court’s decision was contrary to, or an

unreasonable application of, Atkins and Roper as required by section 2254(d).

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68 Opinion of the Court 15-15228

but applies it unreasonably to the facts before it.” Id. In either case,

the phrase “clearly established federal law” refers to the Supreme

Court’s “holdings.” See Williams, 529 U.S at 412. “In other words,

‘clearly established Federal law’ under [section] 2254(d)(1) is the

governing legal principle or principles set forth by the Supreme

Court at the time the state court renders its decision.” Lockyer v.

Andrade, 538 U.S. 63, 71–72 (2003).

In Atkins, the Supreme Court “held that the Eighth Amend-

ment prohibits the imposition of a death sentence on a defendant

who is ‘mentally retarded.’” Shoop v. Hill, 139 S. Ct. 504, 506

(2019); see also Hill v. Humphrey, 662 F.3d 1335, 1360 (11th Cir.

2011) (en banc) (“Atkins established only a substantive Eighth

Amendment right for the mentally retarded . . . .”). Kearse con-

cedes that he “does not meet the diagnostic criteria for ‘mental re-

tardation’ or ‘intellectual disability’ as understood in Atkins.” And,

although he says that “given his mental impairments, in conjunc-

tion with his youth at the time of the offense, the reasons for ex-

cluding mentally retarded individuals from the death penalty apply

equally to [him],” we’ve explained that “a constitutional rule ex-

empting the ‘functionally mentally retarded’ from execution

would go beyond the holding of Atkins, something this [c]ourt may

not do when reviewing [section] 2254 petitions.” Carroll v. Sec’y,

DOC, 574 F.3d 1354, 1369 (11th Cir. 2009).

In Roper, the Court “held that the Eighth Amendment pro-

hibits capital punishment for those under the age of 18 at the time

of their crimes.” Montgomery v. Louisiana, 577 U.S. 190, 206

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15-15228 Opinion of the Court 69

(2016); see also Loggins v. Thomas, 654 F.3d 1204, 1221–22 (11th

Cir. 2011) (“The holding of Roper is simply that the Eighth and

Fourteenth Amendments forbid imposition of the death penalty on

offenders who were under the age of 18 when their crimes were

committed.” (alteration adopted and quotation omitted)). Kearse

admits that he was over the age of 18 when he murdered Officer

Parrish, but he argues that “all the criteria in Roper apply to him”

and urges us to consider “the spirit of Roper.” But whatever the

“spirit” of Roper may be, “the Supreme Court has held that for [sec-

tion] 2254(d)(1) purposes, only the holdings of its decisions mat-

ter.” Loggins, 654 F.3d at 1224. “A rationale is not a holding any

more than a road is a destination,” and “[b]ecause implications are

not actual holdings, the implications of Supreme Court decisions

cannot clearly establish federal law for [section] 2254(d)(1) pur-

poses.” Id. at 1222, 1224. In short, the Florida Supreme Court cor-

rectly identified the Supreme Court’s holdings in Atkins and Roper

and reasonably applied them to the facts of this case.

This is not a case, as Kearse argues, in which a state court

“unreasonably refuse[d] to extend [a legal] principle to a new con-

text where it should apply.” Williams, 529 U.S. 407. In Atkins, the

Supreme Court drew a bright line at “mental retardation.” See 536

U.S. at 317. In Roper, the Supreme Court drew a bright line at the

age of 18. See 543 U.S. at 574 (“The age of 18 is the point where

society draws the line for many purposes between childhood and

adulthood. It is, we conclude, the age at which the line for death

eligibility ought to rest.”). There was no general legal principle for

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70 Opinion of the Court 15-15228

the Florida Supreme Court to extend because Atkins and Roper es-

tablished categorical rules. See Graham v. Florida, 560 U.S. 48, 60–

61 (2010) (citing Atkins and Roper as examples of cases in which

the Supreme Court “has used categorical rules to define Eighth

Amendment standards”). For example, a defendant is either eight-

een years old at the time he commits the murder, or he is not.

Moving the Roper line to eighteen years and a few months does

not extend the categorical rule; it violates it.

We held as much in Barwick v. Secretary, Florida Depart-

ment of Corrections, 794 F.3d 1239 (11th Cir. 2015). There, the

petitioner argued that his death sentence was unconstitutional be-

cause, although he was nineteen-and-a-half years old at the time of

his offense, “his mental functioning was equivalent to that of an

ordinary 11-to-13-year-old person” and “his intellectual functioning

[was] equivalent to that of an ordinary 12-to-14-year-old person.”

794 F.3d at 1257. In other words, he argued that “sentencing to

death one who has reached the chronological age of legal maturity

but who possesses the mental and intellectual capabilities of a ju-

venile would be unconstitutional.” Id. at 1258.

We rejected the petitioner’s argument because he failed to

show that the state court’s denial of his claim was contrary to or an

unreasonable application of clearly established federal law. Id. at

1258–59. In doing so, we agreed with the district court’s analysis

that “the [Supreme Court] ha[d] not extended Roper to mental or

emotional age” and that Roper “drew a bright line” at age 18. Id.

We also agreed that “[a] reasonable application of Roper is that the

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15-15228 Opinion of the Court 71

bright line works the other way, too—executing an individual for

committing a crime after age 18 is not, just because of age, uncon-

stitutional[; m]ental or emotional age may be a mitigating factor,

but it does not necessarily preclude the death penalty.” Id.

Because “state courts are not obligated to extend legal prin-

ciples set forth by the Supreme Court,” we couldn’t say that the

state court unreasonably applied clearly established federal law

when it denied the Barwick petitioner’s claim. Id. at 1259; see also

Shore v. Davis, 845 F.3d 627, 633–34 (5th Cir. 2017) (defendant’s

claim “that his execution would be cruel and unusual in light of his

brain injury” did “not rely on the holding of any Supreme Court

precedent but instead [sought] to extend the reasoning of Atkins

. . . and Roper”). By the same token, we can’t say that the Florida

Supreme Court unreasonably applied clearly established federal

law in denying Kearse’s claim.

We end with a few words about the dissenting opinion. The

dissenting opinion says that we, and the Florida Supreme Court,

have misconstrued Kearse’s Eighth Amendment claim. “The heart

of Kearse’s argument,” the dissenting opinion explains, was a “pro-

portionality claim.” Dissenting Op. at 4. In the dissenting opin-

ion’s view, Kearse argued “for individual, proportionality-based re-

lief, not for a categorical, bright-line exemption based on his age or

intellectual ability.” Id. at 5 n.5.

But Kearse didn’t raise a proportionality claim. He didn’t

raise a proportionality claim in the Florida Supreme Court. And he

didn’t raise one here.

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72 Opinion of the Court 15-15228

In the part of his habeas petition to the Florida Supreme

Court arguing that his death sentence was a cruel and unusual pun-

ishment, Kearse never used the word “proportional” or “propor-

tionality.” See Petition for Writ of Habeas Corpus, Kearse v. State,

969 So. 2d 976 (Fla. 2007) (Nos. SC05–1876, SC06–942), 2006 WL

1463594, at *24–*35. Not once.8 Instead, Kearse argued that his

“low level of intellectual functioning and mental and emotional im-

pairments, in combination with his age at the time of the offense

(eighteen and three months), render[ed] him categorically less cul-

pable than the average criminal.” Id. at *24 (emphasis added and

quotation omitted).

In the part of his initial brief arguing that his death sentence

was a cruel and unusual punishment under the Eighth Amend-

ment, Kearse never used the word “proportional” or any derivative

of it. Not one time.9 Instead, Kearse argued that his “low level of

intellectual functioning and mental and emotional impairments, in

combination with his age at the time of the offense (eighteen and

84 days), render[ed] him categorically less culpable than the

8

Kearse quoted Atkins, once, using the word “proportioned” and cited Roper

for its holding that the death penalty is a “disproportionate” punishment for

juveniles. See Petition for Writ of Habeas Corpus, 2006 WL 1463594, at *26,

*31. But those references are Atkins- and Roper-specific. Neither one of them

argued for a non-categorical holding that it violates the Eighth Amendment to

sentence Kearse to death given the specific facts of this case, which fall outside

the holdings of those two decisions.

9

Kearse cut and pasted the same quote from Atkins and the same description

of Roper’s holding from his habeas petition to the Florida Supreme Court.

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15-15228 Opinion of the Court 73

average criminal.” And, in his reply brief, Kearse didn’t use the

term “proportionality” a single time or any word related to it. Not

even a third cousin. Instead, Kearse argued that the “rationale” of

Atkins and Roper should “extend equally to” him. But we rejected

that argument in Barwick. See Barwick, 794 F.3d at 1259 (“[S]tate

courts are not obligated to extend legal principles set forth by the

Supreme Court . . . .”).

We don’t see how the “heart” of his Eighth Amendment ar-

gument could have been a “proportionality claim,” as the dissent-

ing opinion suggests, when Kearse never uses the word “propor-

tionality.” And we don’t see how the dissenting opinion can say

that Kearse didn’t argue “for a categorical, bright-line exemption

based on his age or intellectual ability.” That’s exactly what he ar-

gued to the Florida Supreme Court and to us: that he is “categori-

cally less culpable than the average criminal” because of his “low

level of intellectual functioning and mental and emotional impair-

ments, in combination with his age at the time of the offense” and

that we should “extend” Atkins and Roper to eighteen-year-olds

with borderline intelligence. And that’s the claim that we, and the

Florida Supreme Court, addressed. The one Kearse actually raised.

In any event, even if Kearse had raised a proportionality

claim, the Florida Supreme Court did not unreasonably apply

clearly established law. The United States Supreme Court has

never held that the death penalty was not a proportional punish-

ment for an eighteen-year-old with borderline intelligence and

emotional problems who, during a traffic stop, takes a police

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74 Opinion of the Court 15-15228

officer’s gun and shoots him thirteen times (while the officer is beg-

ging for his life) because the shooter is on probation and doesn’t

want to go back to jail. Without a clearly established holding from

the United States Supreme Court, there was nothing for the Florida

Supreme Court to unreasonably apply. See Reese, 675 F.3d at 1288

(“[I]t is not an unreasonable application of clearly established Fed-

eral law for a state court to decline to apply a specific legal rule that

has not been squarely established by the Supreme Court.” (altera-

tion adopted and quotation omitted)).

CONCLUSION

“Section 2254(d) reflects the view that habeas corpus is a

guard against extreme malfunctions in the state criminal justice sys-

tems, not a substitute for ordinary error correction through ap-

peal.” Harrington, 562 U.S. at 102–03 (quotation omitted and em-

phasis added). There was no extreme malfunction in this case. The

Florida Supreme Court’s application of Strickland, Atkins, and

Roper were not “beyond any possibility for fairminded disagree-

ment.” See id. at 103. Section 2254(d) requires that federal habeas

relief be denied and that we affirm that denial.

AFFIRMED.

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15-15228 WILSON, J., Concurring in part and Dissenting in part 1

WILSON, Circuit Judge, Concurring in part and Dissenting in part:

I concur with the majority on Kearse’s ineffective assistance

claims. 1 But I dissent as to Kearse’s Eighth Amendment claim be-

cause the Florida Supreme Court unreasonably applied clearly es-

tablished federal law. See 28 U.S.C. § 2254(d)(1).

Three justices of the Florida Supreme Court said it best:

“The bottom line is that this is clearly not a death case.” Kearse v.

State, 770 So. 2d 1119, 1138 (Fla. 2000) (Anstead, J., dissenting) (an-

alyzing proportionality under Florida law). The bottom line is the

same under federal law. You need not be an Eighth Amendment

scholar to see why:

[T]he killing resulted from the impulsive act of an

eighteen-year-old [Kearse] who functions on a low

average-borderline intelligence level and has a docu-

mented history of emotional problems. Importantly,

1 However, I am skeptical of the Florida Supreme Court’s application of Strick-

land to the ineffective assistance claim regarding Dr. Daniel Martell. As the

majority notes, Kearse’s counsel chose not to depose Dr. Martell but spoke

informally to Dr. Martell and the state attorney along with other lawyers in

the community and his experts. Although I think no competent counsel with

a 9-day window of opportunity would have failed to depose the only state

mental health expert in a death case that turned on mental health mitigation,

that is not what Strickland requires. Rather, “the performance inquiry must

be whether counsel’s assistance was reasonable considering all the circum-

stances.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Considering

what Strickland requires and our “doubly” deferential standard of review, I

reluctantly concur with the majority on this claim.

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2 WILSON, J., Concurring in part and Dissenting in part 15-15228

there is no evidence that Kearse set out that night in-

tending to commit any crime, let alone murder. In

fact, he had just picked up a pizza and was returning

home to eat it with friends when this tragic incident

took place.

Id. at 1136.

If that much was clear in 2000, when the Florida Supreme

Court considered the proportionality of Kearse’s sentence under

Florida law, then it was certainly clear in 2007, when the same

court purportedly addressed Kearse’s Eighth Amendment claim.

The court held that Kearse’s death “sentence is not unconstitu-

tional under Atkins” because he is “not mentally retarded,” and

that “Kearse does not qualify for exemption from execution under

Roper” because he was eighteen at the time of his crime. Kearse v.

State, 969 So. 2d 976, 991–92 (Fla. 2007) (per curiam). But—as

Kearse points out—that’s not what he argued, 2 and those two cases

are not the be-all and end-all of the Supreme Court’s Eighth

2 Kearse has consistently and specifically argued that the Florida Supreme

Court misconstrued his state habeas Eighth Amendment claim in a legally sig-

nificant way—unlike the petitioner in Barwick v. Secretary, Florida Depart-

ment of Corrections, 794 F.3d 1239 (11th Cir. 2015) (per curiam). As the State

of Florida notes in a supplemental authority letter, in Barwick, we rejected a

similar Eighth Amendment habeas claim. Id. at 1257–59. But there the peti-

tioner never argued that the Florida Supreme Court misconstrued his petition

at all, much less in a legally significant way. Therefore, our holding that the

Florida Supreme Court did not unreasonably apply clearly established law in

Barwick has no bearing here. See id.

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15-15228 WILSON, J., Concurring in part and Dissenting in part 3

Amendment precedent. Case-by-case proportionality remains the

Eighth Amendment’s polestar.

The court failed to analyze whether Kearse’s death sentence

was proportional or unconstitutionally excessive given the facts of

his case. But it should have. Kearse so argued, and as of 2007, Su-

preme Court precedent called for such an analysis. See, e.g.,

Enmund v. Florida, 458 U.S. 782, 788–801 (1982) (analyzing a death

sentence for proportionality under the Eighth Amendment’s Cruel

and Unusual Punishments Clause, with discussion of retribution

and deterrence); see also Lockyer v. Andrade, 538 U.S. 63, 72–73

(2003) (holding that a “gross disproportionality principle” is clearly

established Eighth Amendment law for analyzing a sentence for a

term of years under § 2254(d)(1)); Solem v. Helm, 463 U.S. 277,

284–303 (1983) (analyzing a sentence of life without possibility of

parole for proportionality under the Eighth Amendment). 3

3 In its supplemental authority letter, the State of Florida draws our attention

to Pulley v. Harris, 465 U.S. 37, 44–51 (1984), and argues that there “the Su-

preme Court explained that a proportionality review is merely an ‘additional

safeguard against arbitrarily imposed death sentences,’ but not one of consti-

tutional necessity.” But the State misapprehends Pulley; in fact, the case

proves my point. Pulley describes two types of proportionality review. Com-

pare id. at 42–43 (describing “traditional” proportionality review “of the ap-

propriateness of a sentence for a particular crime”) with id. at 43–44 (describ-

ing a “different sort” of proportionality review where a court “presumes that

the death sentence is not disproportionate to the crime in the traditional

sense” and “purports to inquire instead whether the penalty is nonetheless un-

acceptable in a particular case because disproportionate to the punishment im-

posed on others convicted of the same crime”). The point of my dissent is that

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4 WILSON, J., Concurring in part and Dissenting in part 15-15228

The majority disagrees that more analysis was required. It

says that Kearse framed his Eighth Amendment claim as a Roper

and Atkins challenge and that the Florida Supreme Court answered

that issue; case closed. The Florida Supreme Court’s synopsis of

Kearse’s arguments would certainly lead one to think that this case

is as simple as that. See Kearse, 969 So. 2d at 991–92. Yet Kearse’s

state petition shows otherwise—it makes clear that the Florida Su-

preme Court’s synopsis is a patently unreasonably narrow charac-

terization of Kearse’s Eighth Amendment argument.4

Contrary to what the majority says, Kearse made a much

broader Eighth Amendment argument than the Florida Supreme

Court said he did. The heart of Kearse’s argument was not Roper

and Atkins; it was proportionality. The thrust of his argument was

that his crime and circumstances do not warrant death. He argued

that neither the penological purpose of deterrence nor retribution

would be served in his case. (And, by my count, he relied on eight

other Supreme Court cases to help make these points—not includ-

ing citations in parentheticals.)

To be sure, Kearse relied on Atkins and Roper heavily. But

those cases were mere vehicles for his proportionality claim,

the former is clearly established federal law, and that Kearse invoked it here—

but only the latter was at issue in Pulley. See id. at 43–44. So, if anything,

Pulley further supports my dissent and disagreement with the State’s position.

4 See Petition for Writ of Habeas Corpus at 24–35, Kearse v. Florida, 969 So.

2d 976 (Fla. 2007) (Nos. SC05–1876, SC06–942), 2006 WL 1463594.

USCA11 Case: 15-15228 Date Filed: 08/25/2022 Page: 79 of 79

15-15228 WILSON, J., Concurring in part and Dissenting in part 5

examples of constitutional reasoning that he says protects him

from execution. In fact, before us, Kearse concedes that he does

not meet the criteria of Atkins’s or Roper’s bright-line rule. Why

would Kearse concede the heart of his state-court argument when

attacking the related state-court decision in federal court? The an-

swer is the simplest one: That was never the heart of his argument.5

“What eighteen-year-old Kearse did was horrible—but his

actions in light of the bizarre circumstances in this case do not war-

rant the ultimate penalty of death.” Kearse, 770 So. 2d at 1138 (An-

stead, J., dissenting). No matter whether the Florida Supreme

Court ultimately agreed with that sentiment in the postconviction

appeal for Kearse’s Eighth Amendment claim, it should have

squarely addressed the claim as it was made and analyzed Kearse’s

sentence for proportionality. Its failure to do so was “objectively

unreasonable.” See Lockyer, 538 U.S. at 75–76. Therefore, I dis-

sent.

5 Certainly, Kearse phrased some analysis in terms of membership in a class

that he argues should be categorically ineligible for death. But at bottom, he

was arguing for individual, proportionality-based relief, not for a categorical,

bright-line exemption based on his age or intellectual ability.