# Lynch v. Secretary, Department of Corrections

> District Court, M.D. Florida · September 25, 2012 · 897 F. Supp. 2d 1277

URL: https://www.frixlaw.com/law-library/cases/8702770

## Case

- **Full name:** Richard E. LYNCH v. SECRETARY, DEPARTMENT OF CORRECTIONS
- **Court:** District Court, M.D. Florida
- **Decided:** September 25, 2012
- **Citations:** 897 F. Supp. 2d 1277; 2012 U.S. Dist. LEXIS 136981; 2012 WL 4377812
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Honeywell
- **Judges:** Honeywell
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

ORDER
CHARLENE EDWARDS HONEYWELL, District Judge.
This case is before the Court on the Petition for Habeas Corpus Relief (Doc. No. 1) filed by Richard E. Lynch. Pursuant to the instructions of the Court, Respondents filed a Response to Petition for Writ of Habeas Corpus (Doc. No. 18). Thereafter, Petitioner filed a Reply to the Response (Doc. No. 23). As discussed hereinafter, the habeas petition is denied in part and granted in part.
I. STATEMENT OF FACTS
The factual and procedural history, as set forth by the Supreme Court of Florida, are as follows:
On March 23, 1999, a grand jury returned an indictment against appellant, Richard Lynch, for two counts of first-degree premeditated murder, one count of armed burglary of a dwelling, and one count of kidnapping. The indictment was the result of events that occurred on March 5, 1999, culminating ifi the deaths of Roseanna Morgan (“Morgan”) and her thirteen-year-old daughter, Leah Caday (“Caday”).
On October 19, 2000, appellant pled guilty to all four counts of the indictment. Subsequently, the trial judge granted appellant’s request to have the penalty phase conducted without a jury. During the penalty phase, the State produced a letter written by the appellant two days prior to the murders. In the letter, addressed to appellant’s wife, Lynch admitted to having a “long affair” with Roseanna Morgan, which lasted from August 1998 until February 9, 1999. He detailed the affair and asked his wife to send copies of cards Morgan had written to Lynch and nude pictures Lynch had taken of Morgan to Morgan’s family in Hawaii. Lynch wrote: “I want them to have a sense of why it happened, some decent closure, a reason and understanding .... ”
The testimony elicited during the penalty phase regarding the events of March 5, 1999, included a tape of a telephone call that appellant made to the “911” emergency assistance service while still in the apartment where the murders occurred. On that tape, Lynch is heard admitting to the 911 operator that he shot two people at 534 Rosecliff Circle. He said he initially traveled to the apartment only to attempt to have Morgan pay a credit card debt, but resorted to shooting her in the leg and in the back of the head. He told the 911 operator that he had three handguns with him and that he shot Morgan in the back of the head to “put her out of her misery.” Appellant also admitted to firing at the police when they first arrived on the scene.
As to Caday, appellant informed the 911 operator that he had held Caday at gunpoint while waiting for Morgan to return home. He related that she was terrified during the process prior to the shootings and asked him why he was doing this to her. Appellant admitted that he shot Caday, and said “the gun just went off into her back and she’s slumped over. And she was still breathing for awhile and that’s it.” Appellant told the operator he planned to kill himself.
During the course of these events on March 5, 1999, appellant telephoned his wife three times from the apartment. His wife testified that during the first call she could hear a woman screaming in the background. Appellant’s wife further testified that the screaming woman sounded “very, very upset.” When *1287 Lynch called a second time, he admitted to having just shot someone.
Prior to being escorted from the apartment by police, Lynch also talked to a police negotiator. The negotiator testified that Lynch told her that during the thirty to forty minutes he held Ca-day hostage prior to the shootings, Ca-day was terrified, he displayed the handgun to her, she was aware of the weapon, and appeared to be frightened. He confided in the negotiator that Ca-day had complied with his requests only out of fear. Finally, appellant described the events leading to Morgan’s death by admitting that he had confronted her at the door to the apartment, shot her in the leg, pulled her into the apartment, and then shot her again in the back of the head.
Several of Morgan’s neighbors in the apartment complex also testified as to the events of March 5, 1999. Morgan’s neighbor across the hall FN2 testified that she looked out of the peephole in her door after hearing the initial shots and saw Lynch dragging Morgan by the hands into Morgan’s apartment. She further testified that Lynch knocked on the door to Morgan’s apartment and said, “Hurry up, open the door, your mom is hurt.” The neighbor testified that Morgan was screaming and was bloody from her waist down. Morgan’s neighbor further testified that the door was opened, then after entering with Morgan, Lynch closed the door and approximately five minutes later she heard the sound of three more gunshots. A second neighbor in the apartment complex also testified that approximately five to seven minutes after she heard the initial gunshots, she heard three more.
After his arrest, appellant participated in an interview with police in which he confessed to the murders. He again admitted the events of the day, telling police he showed Caday the gun and that she was very scared while they were waiting for Morgan to arrive home. He told the detective that Caday was afraid and that he was “technically” holding her hostage. He admitted to shooting Caday’s mother, Morgan, four or five times in the presence of her daughter.
In his post-arrest interview, Lynch also admitted that he planned to show Morgan the guns he brought with him to let her know he possessed them, and to force her to sit down and be quiet. He told the detectives he did not know why he did not just leave the guns in his car FN3 He admitted shooting Morgan four or five times, dragging her into the apartment, and then shooting her in the back of the head with a different firearm.
The State’s final witness was the medical examiner who testified that after receiving the gunshot wound, it probably would have taken “no more than several minutes” for Caday to die. On cross-examination, although he conceded that it was possible that Caday could have died in less than one minute from the wound, such was unlikely. Finally, he also testified that with the amount of blood loss suffered by Caday, she could have lost consciousness within ten to twenty seconds.
The defense presented only one witness, a mental health expert. She related that she had diagnosed Lynch with schizoaffective disorder, a condition which is a combination of schizophrenia and a mood disorder. Further, she tes *1288 tified that she did not believe the letter appellant wrote two days prior to the murders demonstrated an intent by Lynch to Mil Morgan. She concluded that appellant was under the influence of an extreme mental and emotional disturbance on March 5, 1999, and that his psychotic process substantially impaired his capacity to conform his conduct with the requirements of the law.
The State attempted to rebut the defense mental health evidence through the testimony of another mental health expert. The State’s expert opined that Lynch suffered from a depressive disorder. The State’s expert admitted that it was his opinion that on the day of the incident, appellant was suffering emotional distress, but it was not extreme, and Lynch did not lack the ability to conform his conduct to the requirements of the law. Finally, the State’s doctor opined that the letter appellant wrote prior to the murders evidenced a murder-suicide plot.
After accepting written closing arguments and sentencing recommendations and conducting a Spencer FN4 hearing, the judge sentenced appellant to death for the murders of Roseanna Morgan and Leah Caday. He found three aggravating factors as to the murder of Morgan: (1) the murder was cold, calculated, and premeditated (“CCP”) (given “great weight”); (2) appellant had previously been convicted of a violent felony (given “moderate weight”); and (3) the murder was committed while appellant was engaged in committing one or more other felonies (given “little weight”). As to the murder of Caday, the judge found (1) that the murder was heinous, atrocious, or cruel (“HAC”) (given “great weight”); (2) that appellant was previously convicted of a violent felony (given “great weight”); and (3) that the murder was committed while appellant was engaged in committing one or more other felonies (given “moderate weight”). He also found one statutory and eight non-statutory mitigators as to each murder. FN5
Lynch v. State, 841 So.2d 362, 365-68 (Fla.2003) (footnote omitted).
II. POST-CONVICTION PROCEDURAL HISTORY
On direct appeal, Petitioner raised five claims. (Ex. B.) 1 The Supreme Court of Florida affirmed Petitioner’s convictions and sentences. Lynch, 841 So.2d 362 . Petitioner filed a petition for writ of certiorari with the Supreme Court of the United States, which was denied. (Ex. E-3.)
Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.851. (Ex. F-l at *1289 40-179.) The state court conducted an evidentiary hearing and denied relief. (Ex. F-13-F-19.) Petitioner subsequently moved to disqualify the judge, and the motion was denied. (Ex. F-ll at 1965-72, 1997-98.) Petitioner filed an Emergency Writ of Prohibition in the Supreme Court of Florida. (Ex. G.) The court denied the writ without prejudice to Petitioner’s right to raise the issue on appeal from the denial of his Rule 3.851 motion. (Ex. G-2.) The state trial court subsequently entered a Second Amended Order Denying Motion for Post-Conviction and Order on Defendant’s Motion for Rehearing. (Ex. F-12 at 2017-92.) Petitioner appealed, and the Supreme Court of Florida affirmed. Lynch v. State, 2 So.3d 47 (Fla.2008); Ex. N.
Petitioner further filed a state petition for writ of habeas corpus in the Supreme Court of Florida, challenging the legality of his convictions. Id. The Supreme Court of Florida denied the petition. Id.
III. GOVERNING LEGAL PRINCIPLES
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254 , as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AbduF-Kabir v. Quarterman, 550 U.S. 233, 246 , 127 S.Ct. 1654 , 167 L.Ed.2d 585 (2007); Penny v. Johnson, 532 U.S. 782, 792 , 121 S.Ct. 1910 , 150 L.Ed.2d 9 (2001). The AEDPA “establishes a more deferential standard of review of state habeas judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to “prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 , 123 S.Ct. 357 , 154 L.Ed.2d 279 (2002) (recognizing that the federal habeas court’s evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).
A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d); see Knowles v. Mirzayance, 556 U.S. 111 , 129 S.Ct. 1411, 1412 , 173 L.Ed.2d 251 (2009); Brown, v. Payton, 544 U.S. 133, 141 , 125 S.Ct. 1432 , 161 L.Ed.2d 334 (2005). The phrase “clearly established Federal law,” encompasses only the holdings of the Supreme Court of the United States “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000); see also Schwab v. Crosby, 451 F.3d 1308, 1324 (11th Cir.2006) (stating that the federal law relevant to this analysis is the Supreme Court of the United States precedent “in existence at the time the conviction became final”).
“[Sjection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations a federal court must consider.” Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir.2005). The meaning of the clauses was discussed *1290 by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831 , 835 (11th Cir.2001):
Under the “contrary to” clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254 (e)(1).
B. Standard for Ineffective Assistance of Counsel
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel’s performance was deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient performance prejudiced the defense. 2 Id. at 687-88 , 104 S.Ct. 2052 . The prejudice requirement of the Strickland inquiry is modified when the claim is a challenge to a guilty plea based on ineffective assistance. See Hill v. Lockhart, 474 U.S. 52, 58-59 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). To satisfy the prejudice requirement in such claims, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59 , 106 S.Ct. 366 .
A court must adhere to a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90 , 104 S.Ct. 2052 . “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690 , 104 S.Ct. 2052 ; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir.1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some *1291 reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.1992) (citation omitted). Under those rules and presumptions, “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994).
Additionally, it is well established that a defendant has the right to effective counsel on appeal. Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984). The Eleventh Circuit Court of Appeals has applied the Supreme Court’s test for ineffective assistance at trial to guide its analysis of ineffective assistance of appellate counsel claims. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir.1991); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987). Thus, in order to establish ineffective assistance of appellate counsel, Petitioner must show (1) that counsel’s performance was deficient and “fell below an objective standard of reasonableness” and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88 , 104 S.Ct. 2052 .
C. Exhaustion and Procedural Default
One procedural requirement set forth in the AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254 (b); O’Sullivan v. Boerckel, 526 U.S. 838, 842-44 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). Specifically, the AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254 (b)(1).
Thus, a federal court must dismiss those claims or portions of claims that have been denied on adequate and independent procedural grounds under state law. Coleman v. Thompson, 501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991), holding modified by Martinez v. Ryan, —U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). In addition, a federal habeas court is precluded from considering claims that are not exhausted but would clearly be barred if returned to state court. Id. at 735 n. 1, 111 S.Ct. 2546 (stating that if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims proeedurally barred, there is a procedural default for federal habeas purposes regardless of the decision of the last state court to which the petitioner actually presented his claims).
*1292 In order to satisfy the exhaustion requirement, a state petitioner must “fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and .correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995) (citing Picard, 404 U.S. at 275-76 , 92 S.Ct. 509 ) (internal quotation marks omitted). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732 (11th Cir.1998). The Supreme Court of the United States has observed that “Congress surely meant that exhaustion be serious and meaningful.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 , 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992). Furthermore, the Court explained:
[cjomity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claims on the merits.
Id.; see also Henderson v. Campbell, 353 F.3d 880 , 898 n. 25 (11th Cir.2003) (“Both the legal theory and the facts on which the federal claim rests must be substantially the same for it to be the substantial equivalent of the properly exhausted claim.”).
Procedural default will be excused only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both “cause” for the default and actual “prejudice” resulting from the default. “To establish ‘cause’ for procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.1999). To establish “prejudice,” a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892 (citations omitted).
The second exception, known as the “fundamental miscarriage of justice,” only occurs in an extraordinary case, in which a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). In addition, “ ‘[t]o be credible,’ a claim of actual innocence must be based on [new] rehable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 324 , 115 S.Ct. 851 ).
IV. MERITS OF THE PETITION
A. Claim One
Petitioner alleges that his trial attorneys, James Figgatt (“Figgatt”) and Timothy Caudill (“Caudill”), rendered ineffective assistance prior to and during the penalty phase by failing to conduct a reasonable mitigation investigation and by failing to object to the inclusion of inadmissible evidence. (Doc. No. 1 at 4.) Petitioner argues that counsels’ failures not only undermined confidence in the outcome of the penalty phase but also rendered his waiver of a penalty phase jury unknowing and involuntary. (Doc. No. 1 at 4-5; Doc. *1293 No. 13 at 5.) Petitioner contends that he suffered prejudice from counsels’ deficient performance because, had he been fully apprised of the available mitigation evidence, he would not have waived a jury at his penalty phase. (Doc. No. 13 at 33.)
In support of this claim, Petitioner argues that counsel: (1) failed to conduct a reasonable mitigation investigation of his background and mental health (sub-claim D); (2) failed to move to suppress the “murder-suicide” letter based on the doctrine of spousal privilege (subclaim B); (3) failed to move to suppress the “murder-suicide” letter pursuant to the Fourth Amendment (subclaim C); and (4) failed to consult a firearms expert in order to present an “accidental shooting” defense to lesson the impact of aggravating factors (subclaim E). As a result of each of these claims, Petitioner maintains that counsels’ failures resulted in his unknowing and involuntary waiver of a penalty-phase jury (subelaim A). (Doc. No. 1 at 4-5.)
As discussed hereinafter, the Court grants habeas relief as to Petitioner’s claim that counsel were ineffective for advising him to waive a penalty-phase jury prior to adequately investigating and advising him of his cognitive impairment. The remainder of the subclaims are denied pursuant to Section 2254(d).
1. Mitigation Investigation (Subclaims A and D)
a. Failure to Investigate Petitioner’s Background
Petitioner alleges that counsel were ineffective for failing to investigate and present background mitigation evidence. (Doc. No. 1 at 5.) Specifically, Petitioner asserts that counsel should have offered additional background mitigation at the penalty phase, such as testimony from Petitioner’s friends and family, childhood photographs, a baptism certificate and photograph, commendations received while Petitioner worked as a sworn peace officer, and testimony regarding the circumstances of Petitioner’s mother’s death. (Doc. No. 1 at 6; Doc. No. 13 at 65.) Petitioner further maintains that counsel were ineffective for failing to offer additional evidence to support the mental health mitigation, including the testimony of Petitioner’s barber who described Petitioner as looking sick and disheveled shortly before the murders; evidence that Petitioner was delusional because years prior, he had bragged of an affair with an attractive co-worker; and evidence that Morgan ended their relationship on the three-year anniversary of the death of Petitioner’s mother. (Doc. No. 1 at 6-11.)
In considering the adequacy of the background information introduced at the penalty phase, the Supreme Court of Florida noted that Dr. Jacquelyn dander, Petitioner’s mental health expert, had provided penalty phase testimony that demonstrated a thorough understanding of Petitioner’s background history and idiosyncracies. Lynch, 2 So.3d at 47 . In particular:
During the penalty-phase proceedings, Dr. Jacquelyn dander — a forensic neuropsychologist and Lynch’s mental-health expert — provided comparable testimony that (1) Lynch’s father was a security guard who was laid off due to a disability and became a stay-at-home father, (2) Lynch’s father was a very strict disciplinarian and required Lynch to report to him every thirty minutes, (3) if Lynch was outside playing, his father required him to cheek in at excessively frequent intervals, (4) if Lynch’s father was not home, he required Lynch to sign a sheet evidencing his check-ins, (5) neighborhood children teased Lynch concerning his check-ins with his father, (6) Lynch’s father inflicted significant abuse, (7) Lynch’s aunt, cousins, and next-door neighbor reported a lack of positive interaction between Lynch and his father, (8) the family described *1294 Lynch as a caring individual but “weird,” “strange,” and “rigid”, (9) Lynch’s cousin, Danelle Pepe, described one instance in which Lynch was reading a magazine upside-down, (10) Lynch washed his hands and automobile excessively, (11) Lynch had a very close relationship with his mother, (12) when Lynch’s mother attempted to “run interference between” Lynch and his father, the father would physically abuse the mother in Lynch’s presence, and (13) Lynch lived with his mother into his thirties, and even for a short time after his marriage to Virginia Lynch.
Id. The Supreme Court of Florida determined that Petitioner could not demonstrate deficient performance because counsels’ decision to present Petitioner’s background through a mental health expert was a strategic decision designed to synthesize the information and avoid creating a disconnect between Petitioner’s background or history and the events at issue. Id. at 72 . The court further determined that even had counsel performed deficiently by not personally contacting some of Petitioner’s witnesses, he could not demonstrate prejudice because Dr. dander spoke with Petitioner’s family before testifying at the penalty phase and the witnesses presented by Petitioner at the evidentiary hearing merely corroborated her testimony. Id.
The Supreme Court of Florida determined that the remainder of the lay-witness evidence was irrelevant, cumulative, disputed, or contradicted. 3 The court concluded that Danelle Pepe’s (“Pepe”) testimony concerning Petitioner’s and his mother’s habit of nail chewing and concerning Petitioner’s actions at his mother’s deathbed was irrelevant and remote in time to the events of March 5, 1999; the testimony of Petitioner’s barber that Petitioner seemed sick when he visited his barbershop during early March 1999 was cumulative to Dr. dander’s testimony during the penalty phase that Petitioner was decompensating at the time of the offenses; Edward Corso’s (“Corso”) testimony that Petitioner’s father was a racial bigot and that Petitioner grew up in a safe neighborhood was irrelevant and cumulative; and Vesna Lovsin’s (“Lovsin”) testimony that she had never had sex with Petitioner, offered to support Petitioner’s claim that he suffers from delusions, was disputed, irrelevant and cumulative. Lynch, 2 So.3d at 47 .
The Supreme Court of Florida further determined that the documentary evidence submitted during the post-conviction proceedings either corroborated information reported by Petitioner during the penalty phase or was irrelevant. Accordingly, Petitioner’s credit card receipts and statements were unnecessary because the trial court was aware of how Petitioner’s credit card debt related to the crimes; Petitioner’s citizen’s arrest commendations, received in the early 1980’s, were remote in time to the offenses involved in the case; Petitioner’s employment records were cu- *1295 initiative because the court was already aware of Petitioner’s employment history; and the court knew that Petitioner was Catholic, so his confirmation photograph was partially cumulative. Lynch, 2 So.3d at 73 .
In reviewing this claim, this Court has considered the testimony of Petitioner’s family and friends presented at the post-conviction hearing and the documentary evidence that Petitioner alleges should have been introduced. Petitioner’s cousin-in-law, Corso, testified that Petitioner was an awkward but polite and well-dressed child who was obsessed with guns and aspired to become a policeman. He said that Petitioner’s father had been overly protective and a racial bigot but that his mother was very nice. (Ex. F-15 at 443-76.) Petitioner’s cousin, Pepe testified that she had been contacted by Petitioner’s defense attorney and by his psychologist prior to the penalty phase but had spoken to both of them briefly. She indicated that Petitioner was a quirky kid who chewed his nails but that he could be relied upon to take his cousins out for snacks. She identified family photographs and testified that Petitioner had once brought a beautiful Russian woman to a family dinner. She said that Petitioner had acted strangely immediately after his mother died by putting into his pocket a tissue that he had used to blot blood off his mother’s hand. Id. at 477-508. Petitioner’s former coworker, Lovsin testified that she did not remember Petitioner and denied having a sexual affair with him but said that it was possible that she attended a holiday dinner with him. Id. at 510-18, 531. George Kabbez testified that Petitioner often parked his vehicle at the gas station owned by Kabbez’s father. He described Petitioner as a peculiar person who was obsessed with guns. Although he had no specific recollection of whether Petitioner spoke of his involvement with Lovsin, he said that Petitioner would talk about having sex with women. Kabbez believed that Petitioner was in the army or marines. Id. at 518-31. Joseph Joyce, Petitioner’s landlord in New York, testified that Petitioner was peculiar and that he never saw him with anyone other than his mother. Id. at 532-37. Clinton Cody, Petitioner’s friend and barber, testified that Petitioner had confided in him about marital problems and that several days before the murder, he looked as if he had been sick. Id. at 538-46.
Both Figgatt and Caudill testified that they had made a strategic decision to present Petitioner’s background through the testimony of Petitioner’s mental health expert instead of through live witnesses based upon their knowledge of the trial court’s (“Judge Eaton’s”) preferences. (Ex. F-14 at 278; Ex. F-18 at 1104.) Caudill explained that a mental health expert could best synthesize information gathered from background witnesses and link up information to a defendant’s actions at the time of the crime. (Ex. F-18 at 1104-05.)
Post-conviction counsel quizzed Figgatt as to whether he should have introduced (1) copies of Petitioner’s birth records, indicating that he had been hospitalized for eight days after his birth, and his marriage certificate; (2) a letter from Lynch’s mother referencing Petitioner’s marital problems; (3) his mother’s death certificate indicating that she had died on the same date, years prior to, the date Morgan ended the relationship with Petitioner; (4) a photograph of Petitioner’s confirmation and a confirmation card from his parents; (5) certificates regarding Petitioner’s photography hobby; (6) a Valentine’s Day card written to Morgan after she ended her relationship with Petitioner; (7) a Christmas card from Petitioner to Leah Caday; (8) motel receipts; (9) parking receipts; (10) credit card receipts; (11) a *1296 commendation for making a citizen’s arrest; (12) employment records; and (13) school records. (Ex. F-13 at 150-200.) Figgatt conceded that he should have done more to humanize Petitioner (Ex. F-13 at 150.)
Despite Figgatt’s concession, Petitioner has not overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 . It was not unreasonable, based upon counsels’ knowledge of Judge Eaton, to present mitigating evidence of Petitioner’s background through the testimony of their expert witness. Webb v. Mitchell, 586 F.3d 383 (6th Cir. 2009) (counsel’s performance not deficient even though habeas counsel raised legitimate critiques of trial counsel’s performance and presented a more “nuanced and troubling picture” of defendant’s mental health than trial expert did because the habeas expert “merely developed] a different psychological profile based on the same facts” trial expert used). Moreover, after reviewing the background and documentary evidence that Petitioner contends should have been presented at trial, this Court agrees with the Supreme Court of Florida that the omitted evidence was either irrelevant or cumulative to the evidence actually presented at the penalty phase. The background information about which the additional witnesses would have testified and the information contained within the additional documentary evidence was presented to the sentencing court, albeit in a different and less detailed manner. See Bobby v. Van Hook, 558 U.S. 4 , 130 S.Ct. 13, 19 , 175 L.Ed.2d 255 (2009) (no prejudice if additional background mitigation evidence adds nothing of value). Therefore, Petitioner has demonstrated neither deficient performance nor prejudice from counsels’ failure to present additional background evidence at his penalty phase.
b. Failure to Properly Investigate and Pursue Diagnosis of a Cognitive Impairment
Petitioner asserts that counsel were ineffective for failing to alert mental health expert witness, Dr. Olander, to the fact that another mental health expert suspected that Petitioner had brain damage and had recommended further neuropsychological testing to determine the degree of Petitioner’s impairment.
In considering this claim, the Supreme Court of Florida determined that the mental health mitigation presented during Petitioner’s post-conviction hearing was “the only truly new mitigation evidence” presented. Lynch, 2 So.3d at 73 . The court recognized that prior to the penalty phase, Dr. David Cox, Petitioner’s first mental health expert, had concluded that Petitioner suffered from a cognitive disorder NOS (not otherwise specified) and a possible paranoid personality disorder and had recommended neuropsychological testing to determine the degree of Petitioner’s impairment. Trial counsel, displeased with the style of Dr. Cox’s report, retained neuropsychologist Dr. Olander. Counsel, however, did not provide Dr. Olander with a copy of Dr. Cox’s report or inform her of Dr. Cox’s diagnoses. Trial counsel also did not obtain Petitioner’s school records or other background information that could have corroborated cognitive impairment. Dr. Olander assumed that Dr. Cox had ruled out a cognitive impairment and conducted no neuropsychological testing. She conducted only psychological testing and diagnosed Petitioner with schizoaffective disorder. She testified at trial that Petitioner did not have any brain impairment. Lynch, 2 So.3d at 74 . The Supreme Court of Florida held:
Based on the fact that trial counsel knew Lynch suffered from some type of cognitive impairment and never fully investí *1297 gated this condition, counsel were deficient during the penalty phase in failing to address and utilize evidence related to Lynch’s frontal-lobe and right-hemispheric cognitive impairment.
Id. at 75 . Although the Supreme Court of Florida determined that trial counsel was deficient, it concluded that this failure did not prejudice Petitioner. Id. at 71-77 .
In addressing the prejudice inquiry, the Supreme Court of Florida stated that “[prejudice, in the context of penalty phase errors, is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings.” Id. at 70 (citing Gaskin v. State, 737 So.2d 509 , 516 n. 14 (Fla. 1999)). The Supreme Court of Florida considered the testimony of five mental health experts retained by Petitioner and two mental health experts retained by the State. The court noted that, while each expert agreed that Petitioner suffered from a mild cognitive impairment, there was disagreement as to whether the impairment qualified Petitioner for Florida’s statutory mental health mitigators. Id. at 75.
The Supreme Court of Florida discounted State mental health expert Dr. William Reibsame’s testimony because some of his psychological testing of Petitioner was invalidated by the non-standard manner in which the tests had been administered. Id. The court determined, however, that State expert Dr. Jeffrey Danziger’s testimony was the most persuasive of the mental health experts:
Dr. Danziger’s explanation of Lynch’s mindset on the date of the murders is the most persuasive of those offered during the postconviction proceedings:
[Lynch] is someone who did not act in an impulsive fashion.... What we have here is two days before [the offenses,] the letter shows a 'murder/suicide plot. Earlier that day, according to his wife, he acted perfectly normal, he took care of his children, he dropped his son off. Nothing in his behavior suggested disorganization, psychotic thinking, agitation, a perfectly unremarkable morning in the life of Mr. Lynch taking care of his children and waiting for his wife to come home.... He then takes three guns in a bag, all of them loaded, drives over to the apartment complex, puts his car somewhere [Roseanna Morgan] can’t see it as she’s coming in[to] her apartment. What does this suggest? Planning, forethought, organization, not impulsive action, not a, I caught you in bed with somebody so I strangled you in the heat of the moment or without thinking. This is something planned and organized. He then waits, sees [Leah Caday], essentially follows her up the stairs and somehow either forces or cajoles his way in, holds her hostage, waiting however long, thirty, forty minutes, all of which at any time he could have changed his mind. This was not something that happened instantly but went on over this extended period of time. Of course then Roseanna appears at the door, shots are fired, he drags her in, administers the coup de grace, and then Leah gets hit. He then changes his mind on the suicide plan and then decides that he wishes to live. As I put all of this together, we have a man with no significant prior psychiatric history, no evidence of psychosis, no evidence of dementia, functioning perfectly unremarkably in his life.
Thus, Lynch displayed organized, methodical planning in his perpetration of these offenses. Further, he displayed *1298 critical impulse control in electing not to inflict self-harm. During and after the offenses, Lynch explained his actions in a detailed, specific fashion.
Id. The Supreme Court of Florida further noted that Petitioner was completely sober at the time of the murders and “a mass of evidence demonstrates that he methodically planned the murder-suicide plot.” Id. at 76. The court also expressly discounted Petitioner’s demonic-presence argument, which he had raised as demonstrative of emotional disturbance and hallucination. Relying on Dr. Danziger’s testimony, the Supreme Court of Florida noted that Petitioner’s feeling of an evil presence after the murder was “wholly consistent with a realization that he had committed terrible acts.” Id. at 77. Finally, the court determined that Petitioner had failed to link any cognitive condition with his behavior on the day of the murders:
Lynch has simply failed to present any evidence connecting any cognitive condition to his behavior. Even if we fully accepted the testimony of his post-conviction mental-health experts, there has been little to no testimony establishing that any impairment or schizoaffective symptoms contributed to his actions on March 5,1999. Lynch had no prior history of criminal activity but by all defense accounts has always had this condition. Furthermore, he thoroughly planned and carried out his memorialized intent to murder Roseanna Morgan and then demonstrated critical impulse control by refusing to commit suicide.
Id. at 77.
In reviewing this claim, the Court considers the evidence presented at Petitioner’s penalty phase as well as the mitigation evidence presented at the post-conviction hearing.
i Penalty Phase Mental Health Evidence
Dr. dander testified about Petitioner’s background, including his life in New Jersey and New York, and diagnosed him with a personality disorder with obsessive compulsive and paranoid features and a schizoaffective disorder with a formal thought disorder that impacted his ability to think and behave in a rational, logical manner. She opined that Petitioner was under the influence of an extreme mental or emotional disturbance and his ability to conform his conduct with the requirements of law was substantially impaired at the time of the murders. When asked whether Petitioner suffers from brain damage, the following exchange occurred:
[STATE]: Now, you said that you administered some tests to Mr. Lynch, correct?
[DR. OLANDER]: Correct.
[STATE]: And he performed those tests, correct?
[DR. OLANDER]: Correct.
[STATE]: And based upon the findings of those tests, Mr. Lynch is not suffering from any organic brain damage, correct?
[DR. OLANDER]: No, I did not diagnose him with an [sic] organic brain damage.
(Ex. A-8 at 829.)
Dr. Riebsame, the State’s mental health expert, diagnosed Petitioner with a major depressive disorder and a personality disorder. Dr. Riebsame, however, testified that his testing and the evidence of Petitioner’s affectation at the time near the murders had not revealed a schizoaffective disorder. He believed that Petitioner was suffering emotional distress but not extreme distress at the time of the shootings. He opined that Petitioner’s ability to conform his conduct to the law at the time of *1299 the murders was not substantially impaired. (Ex. A-6-Ex. A-8.)
In the sentencing order, Judge Eaton found three aggravating factors applied to Roseanna Morgan’s murder: (1) the murder was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification (“CCP”) (great weight); (2) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (moderate weight); and (3) the capital felony was committed while the defendant was engaged in aggravated child abuse, burglary or kidnapping (little weight). (Ex A-3 at 502-11.)
Judge Eaton found three aggravating factors applied to Leah Caday’s murder: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (great weight); (2) the murder was committed while the defendant was engaged in aggravated child abuse, burglary or kidnapping (moderate weight); (3) the murder was especially heinous, atrocious, or cruel (“HAC”) (great weight).' Id. at 511-14.
As mitigating circumstances, Judge Eaton found the following non-statutory mitigators: (1) the crime was committed while the defendant was under the influence of mental or emotional disturbance but not extreme emotional disturbance; (2) the defendant’s capacity to conform his conduct to the requirements of law was impaired but not substantially impaired; (3) the defendant had no significant history of prior criminal activity; (4) the defendant suffered from mental illnesses at the time of the offense; (5) the defendant was emotionally and physically abused as a child; (6) the defendant had a history of alcohol abuse; (7) the defendant has adjusted well to incarceration; (8) the defendant cooperated with the police; and (9) the defendant expressed remorse, was a good father to his children, and intended to maintain a relationship with his children while in prison. Id. at 514-20. The court gave only moderate weight to the first mitigating circumstance because he believed the extent of Petitioner’s emotional disturbance to be less than extreme. Id. at 515. The court also gave only moderate weight to the second factor because he believed that Petitioner’s capacity to conform his conduct to the requirements of the law was impaired but not substantially impaired. Id. at 515. The court gave little weight to the fourth factor, determining that the evidence had established a personality disorder with paranoid features, obsessive-compulsive features, and passive aggressive features. The court, however, rejected Dr. Olander’s diagnosis of schizoaffective disorder. Id. at 516. Because there was no connection between Petitioner’s alleged childhood emotional and physical abuse or his alcohol abuse and the murders, factors five and six were given little weight. Id.
ii. Post-Conviction Evidence
At the post-conviction hearing, Figgatt testified that he had initially hired Dr. Cox as Petitioner’s mental health expert. (Ex. F-14 at 224.) Figgatt indicated that he had been displeased with Dr. Cox’s report because it did not provide a nexus between Petitioner’s mental illness and the murders. Id. at 225-28. Figgatt felt that Dr. Cox’s report was so nebulous that he “[couldn’t] buy an MRI or anything like that based upon this kind of recommendation from Dr. Cox. So [he] went to Dr. dander.” Id. at 234. He did not provide Dr. dander with Dr. Cox’s written report because he did not want her to be influenced by his conclusions. Figgatt, however, asked Dr. Olander “to do everything that she could come up with that had anything to do with what caused [Petition *1300 er] to do what he did that day.” Id. at 232-35.
Similarly, Caudill testified that one of the reasons Dr. dander was hired was to follow up on Dr. Cox’s suggestion that further neuropsychological testing be done. (Ex. F-18 at 1116-18.) Because Dr. dander was a neuropsychologist, both Figgatt and Caudill expected her to perform neuropsychological testing. (Ex. F-14 at 233-235; Ex. F-18 at 1135.) However, Caudill admitted that the report received from Dr. dander indicated that only psychological testing, not neuropsychological testing, had been performed. (Ex. F-18 at 1135-36.)
Seven mental health experts testified. Psychologist Dr. Cox, neuropsychologist Dr. dander, neurologist David McCraney, neurologist Joseph Sesta, and psychiatrist Joseph Chong-Sang Wu testified on Petitioner’s behalf. Dr. dander indicated that, when she testified at the penalty phase, she believed that brain damage had been excluded by Dr. Cox. When questioned why she had testified that Petitioner had no brain damage based upon the findings of her testing, she replied that “in retrospect, a better answer would have been that I did not evaluate or assess for brain damage.” (Ex. F-16 at 647.) After reviewing Dr. Cox’s initial report, she believed that his testing indicated brain damage, and she would have performed more tests if she had known of Dr. Cox’s diagnoses. Id. at 646-56. She testified that Petitioner’s organic brain damage would have had a significant impact on Petitioner’s self control and would have added weight to the emotional state Petitioner was experiencing at the time of the murders. Id. at 672-73. However, Dr. dander stood by her original diagnosis of schizoaffective disorder. Id. at 695.
Dr. Cox testified that Petitioner had a dysfunction of thinking skills, “quite likely due to a brain damage situation.” (Ex. F-16 at 611.) He testified that the statutory mental health mitigators may have applied in this case. Id. at 615.
Dr. McCraney testified that Petitioner had frontal lobe and right hemisphere brain damage and suffered from psychosis. (Ex. F-16 at 737, 741.) He determined that Petitioner’s ability to control his behavior was impaired but did not opine as to whether Petitioner met the criteria for extreme emotional disturbance. Id. at 741, 762. Dr. McCraney noted that, while Petitioner had likely suffered from a brain dysfunction his entire life, people who suffered from his condition had an impaired ability “to inhibit violent responses.” Id. at 741. He further testified that stressors such as the anniversary date of the death of his mother, spiraling credit card debt, a failing marriage, and the loss of ability to be with his children could have compromised Petitioner’s ability to compensate for his cognitive impairment. Id. at 742-744. Dr. McCraney said that Petitioner’s brain impairment, combined with the stress he was under, more likely than not contributed to the offenses. Id. at 760. He described Petitioner as “a walking time bomb.” Id. at 768.
Dr. Wu examined Petitioner’s PET scan and concluded that his brain showed an abnormality in the distribution of activity in the frontal lobe of the brain relative to the back of the brain. (Ex. F-17 at 879.) Dr. Sesta also testified that Petitioner suffered from mild brain impairment and possible psychosis but not traumatic brain damage. (Ex. F-17 at 965, 986, 992.) He opined that people with Petitioner’s condition, “do quite well” when given a routine, but decompensate rapidly and severely when under great stress. Id. at 987-88. He testified that the impairment would make Petitioner less able than a normal person to conform his behavior to the standards of the law although Petitioner knew *1301 what he was doing and that it was wrong. Id. at 982-98. Dr. Sesta opined that Petitioner’s ability to conform his conduct to the law was substantially impaired. He, however, did not have an opinion as to whether Petitioner suffered from extreme emotional disturbance at the time of the murders, other than that he was suicidal. (Ex. F-18 at 1015; Ex F-17 at 993.)
Psychologist William Riebsame and psychiatrist Jeffrey Danziger testified for the State. Dr. Riebsame agreed that Dr. Cox’s testing was supportive of mild cognitive impairment that likely reflected a learning disorder which in turn affected school performance. (Ex. F-18 at 1039, 1182.) He testified that Petitioner had admitted that he knew what he was doing was wrong and that Petitioner’s ability to conform his conduct to the law was not substantially impaired. Id. at 1040, 1151. However, Dr. Reibsame admitted that he had incorrectly administered some of the tests used to evaluate Petitioner prior to the penalty phase. Id. at 1079-81, 1158, 1167.
Dr. Danziger opined that Petitioner was not suffering from any psychotic illness and did not have schizoaffective disorder. (Ex. F-19 at 1213.) Based on the amount of planning prior to the murders, Dr. Danziger did not believe that Petitioner acted impulsively. Id. at 1214. He testified that Petitioner was under some distress at the time of the murders but not to the point of being unable to control his behavior. Id. at 1216. He stated that, even if Petitioner had a mild cognitive impairment, such an impairment would not have affected his behavior at the time of the murders. Id. at 1218. Dr. Danziger did not believe that Petitioner’s ability to conform his conduct to the law was substantially impaired at the time of the murders. Id. at 1219.
in. Deficient Performance
The Supreme Court of Florida determined that counsel were deficient for failing to ensure that Petitioner was tested for organic brain damage and to utilize evidence of Petitioner’s cognitive impairment at trial. Lynch, 2 So.3d at 75 . Under Strickland , deficient performance is shown if counsel’s actions are “outside the wide range of professionally competent assistance.” 466 U.S. at 691-92 , 104 S.Ct. 2052 .
Given that Dr. Cox’s initial report indicated the probable existence of cognitive impairment and Dr. Olander’s report indicated that only psychological testing had been performed, counsel should have ensured that Dr. Olander administered tests which assessed whether brain damage existed. The parties do not dispute that counsel performed deficiently by failing to investigate and present evidence of cognitive impairment. This Court, therefore, must determine whether the state court unreasonably applied Strickland in holding that Petitioner was not prejudiced by the deficiency. Porter v. McCollum, 558 U.S. 30 , 130 S.Ct. 447 , 175 L.Ed.2d 398 (2009).
iv. Prejudice
‘When a [petitioner] challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently re-weighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695 , 104 S.Ct. 2052 . To determine if prejudice resulted from counsel’s unreasonable failure to investigate and present favorable or mitigating evidence, federal courts “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). The critical issue is whether “there is a reasonable probability that, but *1302 for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . This analysis requires the Court to evaluate the totality of the available mitigation evidence — both that presented at trial and at the collateral proceedings. Williams v. Taylor, 529 U.S. 362, 397-98 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). If “the available mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [the defendant’s] moral culpability,” then prejudice has been shown. Wiggins, 539 U.S. at 538 , 123 S.Ct. 2527 .
In the instant case, significant evidence was presented at the penalty phase through the testimony of Dr. dander regarding Petitioner’s mental health, but the court was told that Petitioner did not suffer from brain damage. Petitioner’s sentencing court considered Dr. dander’s testimony and determined that the statutory mental health mitigating factors did not apply. The court, however, found that three non-statutory mental health mitigating factors did apply. At the post-conviction evidentiary hearing, every defense expert and Dr. Riebsame agreed that Petitioner suffered from some degree of cognitive impairment. Dr. Danziger did not offer an opinion as to whether Petitioner suffered from brain impairment, noting that even if he suffered “some mild cognitive impairment,” it was irrelevant to the murder. (Ex. F-19 at 1218, 1266.) Accordingly, that Petitioner suffers from brain dysfunction is not disputed by either side.
The Supreme Court of Florida considered the testimony of each witness presented at the post-conviction hearing and determined that the state’s post-conviction expert, Dr. Danziger, was the most persuasive of the mental health experts. Lynch, 2 So.3d at 75 . The Supreme Court of Florida further determined that Petitioner had failed to connect his cognitive condition to his behavior at the time of the crimes. Id. at 77 . In so ruling, the Supreme Court of Florida did not address testimony from Petitioner’s mental health experts that linked his mental condition to his actions on the day of the murders. Instead, the state court determined that Petitioner “simply failed to present any evidence connecting any cognitive condition to his behavior.” The court further concluded that Petitioner had presented “little or no testimony establishing that any impairment or schizoaffective symptoms contributed to his actions on March 5, 1999.” Lynch, 2 So.3d at 77 . The state court noted that, even though Petitioner had always suffered from a brain condition, he had no prior criminal history, had thoroughly planned and executed the murders, and had demonstrated impulse control by not committing suicide. Id.
A state court’s factual findings are presumptively correct unless shown to be factually wrong by clear and convincing evidence. See Gore v. Sec’y for Dep’t of Corr., 492 F.3d 1273, 1294 (11th Cir.2007); Jones v. Walker, 540 F.3d 1277, 1288 (11th Cir.2008). When a state court’s “adjudication of a habeas claim results in a decision that is based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, this Court is not bound to defer to the legal conclusions that flow from them.” Jones, 540 F.3d. at 1288 . Moreover, when a state court unreasonably determines the facts relevant to a claim, AEDPA deference is not owed to the state court’s findings, and the federal court will apply a de novo standard of review. Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1353 (11th Cir.2011); Green v. Nelson, 595 F.3d 1245, 1251 (11th Cir.2010) (finding that state court unreasonably determined the facts *1303 under § 2254(d)(2) and applying de novo review).
This Court concludes that the Supreme Court of Florida’s determination that Petitioner “simply failed to present any evidence connecting any cognitive condition to his behavior” is an unreasonable determination of the facts. At the post-conviction proceeding, Petitioner presented testimony from three mental health experts that linked his impairment to his actions on the day of the murders. Dr. Olander testified that Petitioner’s organic brain damage would have had a significant effect on his self control, labeling the interaction of Petitioner’s psychotic thought processes and frontal lobe damage as “incredibly disabling.” (Ex. F-16 at 657.) Both Dr. McCraney and Dr. Sesta testified that Petitioner’s condition, combined with emotional and situational stress, could have led to Petitioner’s decompensation and an impaired ability to control his violent behavior. Dr. McCraney testified that Petitioner’s brain impairment, combined with the stress he was experiencing, more likely than not contributed to the offenses. (Ex. F-16 at 760.) 4 Dr. Sesta described the combination of stress with a brain impairment and psychosis as a “disaster.” (Ex. F-17 at 987.) Thus, evidence was presented at the post-conviction hearing linking Petitioner’s cognitive impairment to his actions. Accordingly, because the state court’s decision was based upon an unreasonable determination of the facts, this Court must independently determine whether the failure of Petitioner’s counsel to investigate and present additional mental health evidence at the sentencing proceeding resulted in prejudice. See 28 U.S.C. § 2254 (d)(2); Sochor v. Sec’y, Dep’t of Corr., 685 F.3d 1016, 1030 (11th Cir.2012).
Testimony regarding Petitioner’s brain damage would have been compelling mitigating evidence and is the type of evidence that the Supreme Court has recognized as relevant in assessing a defendant’s moral culpability. See Porter, 130 S.Ct. at 454 (concluding that prejudice resulted when counsel failed to present evidence of the defendant’s brain abnormality); Sears v. Upton ,—U.S.-, 130 S.Ct. 3259, 3267 , 177 L.Ed.2d 1025 ' (2010) (prejudice found when evidence of Sears’ significant mental and psychological impairments was not introduced during the penalty phase). 5 The *1304 brain damage described by Petitioner’s mental health experts at the evidentiary hearing could have resulted in greater mitigating weight being given to the mental health mitigation than was given to Dr. Olander’s original diagnosis of schizoaffective disorder. The evidence could have supported the application of the statutory mental health mitigators that, at the time of the murders, Petitioner was “under the influence of extreme mental or emotional disturbance” and his capacity to “appreciate the criminality of [his] conduct or to conform [his] conduct to the requirements of law was substantially impaired,” Fla. Stat. §§ 921.141 (6)(b), (f). The additional mental health evidence also could have added weight to the non-statutory mental health mitigation. The trial court gave little to moderate weight to each of the three mental health mitigating factors.
In addition to strengthening the mitigating factors, expert evidence demonstrating that Petitioner suffered from brain damage could have had the effect of weakening the aggravating factors. Hardwick v. Crosby, 320 F.3d 1127, 1164 (11th Cir.2003) (“[Psychiatric mitigating evidence not only can act in mitigation, it could also significantly weaken the aggravating factors.”); Middleton v. Dugger, 849 F.2d 491, 495 (11th Cir.1988) (psychiatric evidence has the potential to change the evidentiary picture by altering the causal relationship that can exist between mental illness and homicidal behavior). Petitioner’s mental health experts maintained that damage to the frontal lobe of the brain would have significantly impacted Petitioner’s self-control, including his ability to inhibit violent responses, particularly when under stress. Evidence was presented regarding the stress Petitioner was under as a result of financial concerns and the potential end of his marriage. Thus, the testimony of Petitioner’s mental health experts could have served to reduce the calculated nature of the crime and lessened the weight of the CCP aggravator.
Nevertheless, this was not a case in which little or no mental health mitigation was presented at the penalty phase. Dr. Olander testified that Petitioner suffered from schizoaffective disorder with a formal thought disorder that had an impact on his ability to behave in a rational and logical manner. She also testified that both statutory mental health mitigators applied. Although new evidence was presented at the post-conviction hearing that Petitioner suffers from a cognitive impairment, Dr. Olander’s original diagnosis of schizoaffective disorder did not change. In addition, at the post-conviction hearing, Dr. Danziger rejected Dr. Olander’s diagnosis of schizoaffective disorder, observing that Petitioner had not acted impulsively and that his behavior did not suggest disorganization or agitation. He testified that Petitioner’s cognitive impairment was not relevant to his actions on the day of the murders, noting that “this was not something that happened instantly, but went on over this extended period of time.” Dr. Danziger opined that Petitioner had methodically planned the murder of Morgan and was a man “with no significant prior psychiatric history, no evidence of psychosis, no evidence of dementia, *1305 functioning perfectly unremarkably in his life.” Lynch, 2 So.3d at 76 . Balancing the testimony of the mental health experts, therefore, the Court determines that great weight should have been given to the three non-statutory mental health mitigators found by the trial court.
Analysis of the prejudice prong, however, requires consideration of the aggravating circumstances associated with Petitioner’s case to determine whether “without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . This is not a case “where the weight of the aggravating circumstances or the evidence supporting them was weak.” Sochor, 685 F.3d at 1030 (quoting Suggs v. McNeil, 609 F.3d 1218, 1232 (11th Cir.2010)). Three aggravating circumstances were found for each victim. Although Petitioner had no significant prior criminal record, more than one victim was involved, supporting the statutory aggravating factor that the “defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person” for both murders. Fla. Stat. § 921.141 (5)(b). Petitioner also confined Caday by gunpoint and held her as hostage in her apartment for thirty to forty minutes while waiting for her mother to arrive. Caday was terrified during this time, and she subsequently witnessed the brutal murder of her mother and was then shot and killed. The evidence, therefore, supports a finding that the murder of Caday was committed while Petitioner was engaged in burglary or kidnapping and her murder was “especially heinous, atrocious, or cruel.” Fla. Stat. §§ 921.141 (5)(h), (d); Henyard v. State, 689 So.2d 239, 253 (Fla.1996) (“Under Florida law, the heinous, atrocious, or cruel aggravating circumstance may be proven in part by evidence of the infliction of ‘mental anguish’ which the victim suffered prior to the fatal shot.”). Likewise, ample evidence was presented that the murder of Morgan was carefully planned, supporting the CCP aggravating factor. Fla. Stat. § 921.141 (5)(I); Dennis v. State, 817 So.2d 741, 765 (Fla. 2002) (upholding CCP where facts showed defendant arrived at the apartment before the victim and waited for her arrival). Although the weight given to the CCP aggravator may have been lessened by Petitioner’s cognitive impairment, the Court determines that this is not probable given the substantial evidence supporting the CCP aggravator coupled with the differing opinions of the defense experts concerning Petitioner’s ability to control his violent behavior.
“Many death penalty cases involve murders that are carefully planned, or accompanied by torture, rape or kidnaping.” Jackson v. Herring, 42 F.3d 1350, 1369 (11th Cir.1995). In these types of cases, the Eleventh Circuit has found that the aggravating circumstances outweigh any prejudice caused by the omission of relevant mitigating evidence. See, e.g., Sochor, 685 F.3d at 1031 (despite evidence of a psychological disorder, “[t]he deficient performance of Sochor’s counsel did not prejudice him” in case involving rape and murder by a defendant who had been previously convicted of a vicious sexual assault); Francis v. Dugger, 908 F.2d 696, 703-04 (11th Cir.1990) (finding that “evidence of a deprived and abusive childhood [was] entitled to little, if any, mitigating weight,” in a case concerning a deliberately planned torture murder). The aggravating circumstances of the instant case involved organized, careful planning and kidnapping. In light of the weighty aggravators and the disagreement among the experts regarding whether Petitioner’s *1306 cognitive impairment contributed to his actions on the date of the offenses, the Court cannot conclude that the mitigating factors outweigh the aggravating factors.
In sum, when considering the totality of the available mitigation adduced at trial and in the post-conviction hearing and re-weighing it against the significant evidence in aggravation, Petitioner has not established that a reasonable probability exists that he was prejudiced by counsels’ failure to present expert neuropsychological evidence of brain damage at sentencing. This is not a case in which the sentencer heard very little mitigating evidence or where the case in aggravation was weak. See Rutherford v. Crosby, 385 F.3d 1300, 1315, 1315-16 (11th Cir.2004) (holding state court’s conclusion of no prejudice reasonable because, inter alia, the jury heard at the penalty phase some evidence of defendant’s mental and emotional state and other possible non-statutory mitigating factors and strong aggravating factors existed); cf Williams, 529 U.S. at 395-98 , 120 S.Ct. 1495 (the petitioner suffered prejudice because only one aggravating factor was established and counsel failed to introduce “the comparatively voluminous amount of evidence” in his client’s favor, including evidence of a “nightmarish childhood,” offering instead only a “sole argument in mitigation”). On de novo review, this claim fails because Petitioner has not demonstrated prejudice. See Jefferson v. Fountain, 382 F.3d 1286 , 1295 n. 5 (11th Cir.2004) (“[I]f a state habeas court denies relief where we would have done so if we were conducting de novo review, federal relief is due to be denied regardless of the reasoning the state court used to reach that result.”).
2. Penalty Phase Waiver of Jury (Subclaim A)
Petitioner contends that counsel rendered ineffective assistance by failing to fully advise him of defenses and mitigation evidence prior to his waiver of a penalty phase jury. The Supreme Court of Florida addressed Petitioner’s claim that his waiver of a jury trial was unknowing and involuntary due to counsel’s failure to investigate and advise him of mitigation in two parts. First, the court determined that contrary to Petitioner’s assertions, trial counsel had discussed the elements of, and the defenses to, the crimes of which Petitioner was accused and that no valid defenses to those crimes existed. Lynch, 2 So.3d at 70 . The state court also noted that both Figgatt and Caudill had testified that potential aggravators had been discussed with Petitioner prior to his waiver of a penalty phase jury. Id. at 70-71 . In regards to Petitioner’s assertion that counsel should have performed a more complete investigation of potential mitigating factors prior to recommending that Petitioner waive a penalty-phase jury, the Supreme Court of Florida explained that Petitioner could not demonstrate prejudice from counsels’ omissions:
Lynch’s “mild cognitive impairment” has not affected his ability to lead an otherwise normal life, he is of average overall intelligence, and he has never connected this “impairment” to his actions on March 5, 1999, or his decisions with regard to how to best proceed in this case. Therefore, Lynch’s asserted ignorance of hypothetical, unsupported defenses and a comparatively minor mental-health diagnosis could not have affected his decision to waive a penalty-phase jury.
Id. at 70 (internal citations omitted). Next, the Supreme Court of Florida determined that counsels’ decision to recommend that Petitioner waive a jury during his penalty phase was strategic:
Counsel were justifiably concerned that this case involved a thoroughly planned *1307 and executed murder of a former lover and the accompanying murder of her minor daughter. Trial counsel’s recommendation was a strategic decision to conduct the penalty phase with the court sitting as the fact-finder. In the words of trial counsel, they were “presenting this to a judge who wasn’t going to be emotional about the fact that there was a death of a child, and the jury was going to be.” (Emphasis supplied.) Lynch has not demonstrated prejudice, and it is unclear how further discussion of hypothetical defenses, which did not exist in this case, and a comparatively minor mental-health diagnosis would have altered his decision to forgo a penalty-phase jury in favor of a potentially less emotional, highly experienced jurist.
Id. at 71 . The question of whether an attorney’s actions were the product of a tactical or strategic decision is an issue of fact, and a state court’s decision concerning that issue is presumptively correct. Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir.1998).
At the evidentiary hearing, Figgatt testified that, based on his experience with another death-penalty case in which a child had been murdered and the sentencing jury recommended death by vote of eleven to one, presenting evidence surrounding Leah Caday’s death to a jury at the penalty phase would not have been “a good idea.” (Ex. F-13 at 75.) Figgatt stated:
It was in the light of that eleven one death rec [sic] that I was thinking of this particular case involving the death of a child and its mother, not by knife out of some drunken activity, but rather something that was ... that had the framework of planning and design, and I didn’t think a jury was going to be of value to us. If anything, a twelve to zero death rec is going to authorize a judge to impose a death penalty. We had an eleven one death rec [sic] in the Eddie James case.... I know I didn’t directly answer your question. The only benefit I could see was getting ... presenting this to a judge who wasn’t going to be emotional about the fact that there was a death of a child, and the jury was going to be.
Id. at 76. Figgatt also believed that, based on the trial judge’s history, Petitioner’s guilty plea, combined with his waiver of the penalty-phase jury, was the best option for Petitioner in terms of avoiding the death penalty. (Ex. F-13 at 78; Ex. F-14 at 253-54, 276.) Figgatt said that in making his recommendation, he had considered other factors in addition to the emotional impact of Leah Caday’s death, such as the difficulties jurors have with understanding non-statutory mitigating factors. (Ex. F-15 at 435-36.) Figgatt testified that this strategy had been successfully used by the public defender’s office to avoid the death penalty. (Ex. F-14 at 251-53.) Indeed, at the change of plea hearing, the State objected to Petitioner’s request to waive a jury, noting that “[t]he State’s position is that this particular strategy has been employed a number of times by the Public Defender’s office in this circuit. The track record so far is in every case it has been a successful strategy to avoid the imposition of the death penalty.” (Ex. A-2 at 383.) Figgatt testified that, had he been able to present evidence of brain damage, he might have advised Petitioner differently in terms of waiving his right to a jury because juries are more receptive to a mitigator such as brain damage. (Ex. F-13 at 81.) However, Figgatt later retreated from that position stating that, even in light of all the additional mitigation advanced by Petitioner, he could not say whether his recommendation to waive a jury at sentencing would have changed. (Ex. F-14 at 248.)
Caudill testified that pleading guilty and waiving a jury at the penalty phase were strategic decisions. (Ex. F-18 at 1090.) *1308 Caudill was concerned with the emotional aspects of the death of a child and the possibility that sordid details of Petitioner’s past could be revealed in the courtroom if the case proceeded to trial. (Ex. F-18 at 1090-91.) Caudill indicated that he was aware that the trial judge had been very active in death penalty litigation, and he felt that the judge would understand the role of aggravating circumstances and the applicability of mitigating circumstances better than a jury. (Ex. F-18 at 1092.)
Based on the record and counsels’ testimony, Petitioner has not overcome the presumption that counsels’ decision to advise Petitioner to waive a jury at penalty phase was a strategic one. Nevertheless, even when a decision is strategic, it is not immune from attack unless it was a reasonable strategy. Strickland, 466 U.S. at 691 , 104 S.Ct. 2052 (to be considered a constitutionally adequate strategic choice, the decision must have been made after counsel conducted reasonable investigations or made a reasonable decision that makes investigation unnecessary). In Wiggins , the Supreme Court held that the traditional deference owed to the strategic judgments of counsel is not justified where there was not an adequate investigation “supporting those judgments.” 539 U.S. at 539 , 123 S.Ct. 2527 .
In the instant, case, both Dr. Cox and Dr. dander had examined Petitioner prior to his waiver of a jury. Therefore, counsel were, or should have been, aware of potential cognitive impairment evidence at the time they advised Petitioner to waive a jury. It was unreasonable for counsel to advise Petitioner to waive a jury without first adequately investigating and advising him of the extent of available mental health mitigation, including his cognitive impairment, particularly given that counsel should have been aware of the potential existence of this powerful mitigation evidence as it was referenced by Dr. Cox in his report. In fact, Figgatt initially testified at the post-conviction hearing that if he had been able to present brain damage as mitigation, he likely would have advised Petitioner differently about waiving a jury because juries are more receptive to brain damage than to mental illness resulting from a person’s upbringing. 6 (Ex. F-13 at 81-82.) Accordingly, counsel rendered deficient performance by advising Petitioner to waive a jury at penalty phase prior to adequately investigating and advising him of a substantial mental health mitigating factor.
Even if counsels’ performance was deficient, in order to succeed on this ineffective-assistance-of-counsel claim, Petitioner must establish prejudice resulted from the deficiency. Strickland, 466 U.S. at 668 , 104 S.Ct. 2052 . Petitioner may establish prejudice by showing that, but for counsels’ deficient advice, he would not have waived his right to a jury at sentencing. See Hill, 474 U.S. at 57-59 , 106 S.Ct. 366 ; Nelson v. Hvass, 392 F.3d 320, 322-324 (8th Cir.2004) (defendant not entitled to relief where he failed to show that he would not have waived jury had his attorney properly advised him as to his jury right); compare Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.1989) (no prejudice absent showing jury would have reached different result).
The Supreme Court of Florida applied the Hill prejudice standard and determined that, even had Petitioner been informed of “hypothetical, unsupported defenses and a comparatively minor mental-health diagnosis,” he had not shown that *1309 he would have insisted upon a jury at sentencing. Lynch, 2 So.3d at 71 . Initially, this Court notes that the state court’s determination that Petitioner has not demonstrated prejudice resulting from counsels’ failure to investigate and pursue Petitioner’s claims based on spousal privilege, the Fourth Amendment, and a firearms expert prior to advising him to waive a jury is objectively reasonable. 7 However, in light of the evidence presented at the post-conviction hearing of Petitioner’s cognitive impairment, the Supreme Court of Florida unreasonably discounted the weight and the importance of the available mental health mitigation of which Petitioner was not apprised prior to his waiver of a jury. See discussion, supra Claim One(A)(1)(b)(iv); 28 U.S.C. § 2254 (d)(2).
Petitioner was involved in his own defense and knew that mental health would be the lynchpin of his mitigation defense as is evidenced by letters sent to counsel prior to his waiver of the jury trial. In a letter dated February 9, 2000, Petitioner told counsel that he was “leaning towards a religious (or lack thereof) Satanic influence which I will explain either in a letter to your office or in person next time you visit me.” (Ex. F-4 at 588.) In a letter written on August 29, 2000, Petitioner queried whether he would be examined by another mental health expert and opined that the female doctor who had examined him was “more helpful.” (Ex. F-4 at 594.) In the same letter, Petitioner expressed concern that Judge Eaton would be harsher in sentencing than the judge initially assigned to his case. (Ex. F-4 at 594.)
Figgatt noted that, although his mitigation work was not complete at the time he advised Petitioner to waive a jury trial, he had discussed with Petitioner plans regarding the mental health mitigation “to give something [sic] weight on the other side.” (Ex. F-13 at 67, 74.) Both Figgatt and Caudill believed that Petitioner was able to understand the advice and strategy given to him by counsel. (Ex. F-13 at 69; Ex. F-18 at 1101.) Given Figgatt’s admission that brain damage is a compelling mitigator for a jury to consider, Petitioner’s reliance on his mental health as the only weighty mitigating factor in his defense, and Petitioner’s concern about Judge Eaton’s potential harshness, a reasonable probability exists that Petitioner would not have waived a jury at sentencing had counsel adequately investigated Dr. Cox’s original diagnosis and advised Petitioner of his cognitive impairment. See Sears, 130 S.Ct. at 3265 (noting the fact “that a theory might be reasonable, in the abstract, does not obviate the need to analyze whether counsel’s failure to conduct an adequate mitigation investigation before arriving at this particular theory” resulted in prejudice). The Court concludes, therefore, that the state court’s denial of this claim was an unreasonable application of Hill . Accordingly, habeas relief is granted as to this claim.
3. Spousal Privilege and the Fourth Amendment as Grounds for Suppression of the Murder-Suicide Letter (Subclaims B and C)
a. Failure to Advise Petitioner of Spousal Privilege and Failure to Exclude the Murder-Suicide Letter from Evidence
Petitioner contends that a “murder-suicide” letter introduced at the penalty-phase proceeding was inadmissible under the marital communication privilege (also known as “spousal privilege”), and counsel’s failure to move to suppress the letter resulted in ineffective assistance. In support of this claim, Petitioner argues that the murder-suicide letter prejudiced him because the letter was the basis for the *1310 state courts’ finding of the CCP aggravating factor. (Doc. No. 13 at 43.) Petitioner also asserts that, had counsel investigated and advised him about the spousal privilege, he would not have waived a penalty-phase jury. (Doc. No. 1 at 4-5.)
Petitioner maintains that the state courts erroneously determined that he had asked his wife to send the murder-suicide letter to Roseanna Morgan’s parents, thereby waiving spousal privilege. As support for this assertion, Petitioner points to a portion of the letter which reads:
In blue stacked crates in garage by door, on my side you will see computer gaming magazines on top shelf, left side top one says “50 best games”. On bottom most magazine of pile you will find copy of a letter she gave me Jan. 11, and a card she gave me Feb. 2, a week before it ended. You can see how serious we were and how animalistic she was sexually in card. She loves Steven too, also fed him bottle, changed his diaper gave him bananas. Make copies of the letter and card for me and copies of pics on drive, just print them out on printer, don’t have to be full page just 4 x 6 or so. I want you to send copies of letter + card and pictures to her family ... I want them to have a sense of why it happened, some decent closure, a reason and understanding, they are good parents like yours. I want them to know what she did, the pain she caused, that it was not just a random act of violence.
(Ex. F-l at 178.) Petitioner argues that this portion of the murder-suicide letter actually directed Virginia Lynch to send the January 11th letter, the February 2nd card, and some nude photographs of Roseanna Morgan to Morgan’s parents. (Doc. No. 13 at 44.) Petitioner contends that the Supreme Court of Florida did not address federal law in its adjudication of this claim and that “the state courts failed to recognize clearly established federal law on marital privilege and the significance of the privilege.” (Doc. No. 13 at 45.)
Petitioner raised this issue in his Rule 31851 motion. In denying the claim, the post-conviction court determined that it was illogical to conclude that Petitioner was merely directing his wife to send copies of the January 11th letter and the February 2nd card to Morgan’s parents because doing so “would not have accomplished Lynch’s stated purpose of providing the victim’s parents and Virginia Lynch’s parents ‘a sense of why it happened, some decent closure, a reason and understanding.... I want them to know the pain she caused and that it was not some random act of violence ....’” (Ex. F-12 at 2042.) The court noted that the January letter and February card referenced in the murder-suicide letter did not provide “reason and understanding” of why “it happened” and did not explain the “pain [Morgan] caused.” Id. Rather, those documents merely contained “expressions of affection” and Petitioner’s expressions of frustration over the break-up of his relationship with Morgan without explaining the pain she had caused. Id. Accordingly, the post-conviction court concluded that only the murder-suicide letter accomplished Petitioner’s stated purpose, and therefore, Petitioner had intended the contents of the murder-suicide letter to be disclosed both to the victim’s parents and to Virginia Lynch’s parents. Id. The court also determined that much of the information contained in the murder-suicide letter was cumulative to Petitioner’s statements made to a 911 operator and to a crisis negotiator. Id. at 2042-43.
On appeal, the Supreme Court of Florida determined that, “based upon the content of the letter, counsel may have possessed a non-frivolous basis” on which to argue that Petitioner did not intend for his *1311 wife to distribute the murder-suicide letter. Lynch, 2 So.3d at 64 . However, the court further determined that this interpretation of the murder-suicide letter was “very debatable” and that “the post-conviction court correctly interpreted the letter, and its more persuasive interpretation is supported by competent, substantial evidence.” Id. Accordingly, the Supreme Court of Florida determined that the spousal privilege did not apply to the letter because Petitioner had never intended the letter to constitute a confidential communication:
Section 90.504(1), Florida Statutes (2000), the subsection codifying the confidential marital-communications privilege, states: “A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.” (Emphasis supplied.) Therefore, despite the fact that we broadly construe this privilege to protect spousal confidences, the confidential marital-communications privilege only applies to communications that were originally intended to be confidential. Here, the letter itself represented Lynch’s entreaty to his wife that she disclose all of this information to the victims’ family in Hawai’i. Therefore, Lynch never intended for this message to constitute a confidential marital communication.
Id. at 65 (emphasis in original). Because the spousal privilege did not apply to the letter, as it was never intended to be confidential, the court determined that Petitioner could show no prejudice from counsel’s failure to seek exclusion of the murder-suicide letter. Id. at 67 . The Supreme Court of Florida determined that the same analysis applied to the penalty-phase of the trial. Id. at 77 .
Nothing in the record, or in Petitioner’s submissions, suggests that the state courts’ factual findings regarding the intended recipients of Petitioner’s murder-suicide letter were unreasonable. The January 11th and February 2nd correspondence, referenced in the murder-suicide letter, from Morgan to Petitioner consisted of expressions of affection, written before the break-up. (Ex. F-8 at 1431-34.) This earlier correspondence did not address the issues delineated by Petitioner in his murder-suicide letter.
In contrast, the four page murder-suicide letter attempts to provide justification for the violence by describing the depth of the relationship between Morgan and Petitioner, explaining that he had loaned Morgan a great deal of money, and when Morgan reunited with her husband, she refused to pay the credit cards bills. At the end of the letter, Petitioner writes:
That is why she must pay the price. She built me up, made me love her, loved me, gave me that card on Feb 2, we made love on Feb 6 then on [unintelligible] she ended it. You cannot tell someone words like that, then expect them to turn off like a switch. [Then] there’s the $ worry.
(Ex. F-l at 179.) As noted by the state courts, the murder-suicide letter accomplished Petitioner’s stated purpose of explaining why “it” happened. Thus, it was reasonable for the state courts to determine that Petitioner intended Virginia Lynch to send the murder-suicide letter to Morgan’s parents, and thus, the spousal privilege did not apply to the letter because it was never intended to be a confidential communication.
Other than expressing disagreement with the state courts, Petitioner has not presented clear and convincing evidence that the courts unreasonably determined that the spousal privilege did not apply to the murder-suicide letter. Under *1312 Florida law, “[a] spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.” Fla. Stat. § 90.504 (1) (2000) (emphasis added). Because Petitioner intended for Virginia Lynch to share the contents of the letter with Morgan’s parents, the spousal privilege did not apply under Florida law, and counsel were not ineffective for failing to move for exclusion of the letter. Even if counsel may have possessed a non-frivolous basis on which to argue that Petitioner had not intended distribution of the murder-suicide letter, given the state courts’ factual determinations, this argument would have failed. Thus, Petitioner has failed to demonstrate that a reasonable probability exists that he would not have waived a jury or that the outcome of the penalty phase would have been different if trial counsel had advised him about the spousal privilege or moved to suppress the letter given the state courts’ determination that a motion to suppress would not have succeeded. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir.2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit).
In addition, even assuming arguendo that counsel should have sought suppression of the murder suicide letter, Petitioner cannot show prejudice. There was sufficient evidence in the record to support the sentencing court’s finding of the CCP aggravator for Morgan’s murder, even without consideration of the murder-suicide letter. See Lynch, 841 So.2d at 372-73 (finding each element of the CCP aggravator without consideration of the murder-suicide letter). Petitioner parked his vehicle away from the victims’ apartment in a place where the victims could not see it. He took three guns to the apartment and held Caday hostage in the apartment for more than thirty minutes before Morgan came home. He confronted Morgan at the door and shot her several times in the legs before she entered the apartment. After dragging Morgan into the apartment, he waited approximately five to seven minutes before he retrieved another firearm and shot her in the back of the head, execution style, killing her. During the course of the murders, Petitioner was able to call Virginia Lynch three times from the victims’ apartment, yet at no time did Petitioner withdraw from the apartment or seek help for his victims. See discussion infra Claim Nine.
Because Petitioner can demonstrate neither deficient performance nor prejudice, this claim fails under Strickland and is denied pursuant to Section 2254(d). 8
b. Failure to Advise Petitioner of His Fourth Amendment Rights Against Search of His Home and the Seizure of the Murder-Suicide Letter
Petitioner asserts that counsel were ineffective for failing to: (1) advise him of, or object to, the warrantless search of his home and seizure of the murder-suicide letter; and (2) object to the over-broad warrant later obtained by law enforcement and thereby failing to exclude the letter in evidence during his penalty phase. (Doc. No. 1 at 5.) 9 Specifically, Petitioner argues *1313 that the Supreme Court of Florida made an unreasonable factual determination when it found that the police were in Virginia Lynch’s home by consent and unreasonably applied the law by concluding that the incriminating nature of the letter was immediately apparent. (Doc. No. 13 at 52-53.)
Petitioner raised the issue of the admissibility of the murder-suicide letter in his Rule 3.851 motion. The trial court denied the claim on the grounds that “the letter, having been properly delivered to Lynch’s wife, was her property and was lawfully obtained by law enforcement since Lynch had no further ownership interest in it.” (Ex. F-12 at 2036.) On appeal, the Supreme Court of Florida declined to address the performance prong of the Strickland standard, determining instead that Petitioner could not show prejudice from counsels’ failure to seek its exclusion from evidence because the letter was admissible under the “plain view” doctrine. Lynch, 2 So.3d at 67 . Specifically, the court determined that the police officers who took the letter from Virginia Lynch had probable cause to seize the letter because they were in her home with consent, were already independently aware of the murder-suicide letter, and Mrs. Lynch was reading the letter in the officers’ presence. Lynch, 2 So.3d at 68 .
Generally, the Fourth Amendment requires that an officer obtain a warrant before conducting a search. U.S. Const, amend. IV. A warrant is not needed, however, if the defendant voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). For a warrantless search to be constitutionally valid on the basis of consent, that consent must be given voluntarily by an individual possessing authority over the searched premises. Illinois v. Rodriguez, 497 U.S. 177, 181 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990). The voluntariness of consent is a “question of fact dependent upon the totality of the circumstances.” Schneckloth, 412 U.S. at 227 , 93 S.Ct. 2041 . A determination of a factual issue made by a state court is presumed correct unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
Petitioner argues that the state court made an unreasonable determination of the facts because Mrs. Lynch did not consent to the search of her home or the seizure of the letter. (Doc. No. 13 at 47, 52.) In her sworn interview with the state attorney, Mrs. Lynch does not explicitly state whether she invited the police into her home. (Ex. F-5 at 804-39.) Nevertheless, Mrs. Lynch called 911 after her husband called her from Morgan’s apartment, and she indicated that when the policeman arrived at her home, she believed that he was there to investigate the shootings. Id. at 834-35 ; Ex. A-4 at 98. When the police arrived, a policeman searched the home. Id. at 836 . Moreover, at Petitioner’s sentencing hearing, Mrs. Lynch testified that after she found the letter, she “was reading it, and [the officer] said he has to have it as evidence, so I went ahead and give [sic] it to him.” (Ex. A-4 at 100.) The circumstances surrounding the police’s seizure of the murder-suicide letter could reasonably be construed as consensual. The Supreme Court of Florida did not clearly err in concluding that Mrs. Lynch granted consent to search and voluntarily relinquished the murder-suicide letter. Petitioner has not carried *1314 his burden to rebut the presumption of the correctness of the state court’s factual finding by clear and convincing evidence. 28 U.S.C. § 2254 (e).
Neither has Petitioner established that the state court unreasonably applied clearly established federal law when it determined that the evidentiary nature of the letter was immediately apparent. The “plain view” doctrine permits a warrantless seizure where: (1) an officer is lawfully located in the place from which the seized object could be plainly viewed and has a lawful right of access to the object itself; and (2) the incriminating character of the item is immediately apparent. Horton v. California, 496 U.S. 128, 186-37 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990); Rimmer v. State, 825 So.2d 304, 313 (Fla.2002). “For an item’s incriminating character to be ‘immediately apparent,’ the police merely need probable cause to believe that the item is contraband.” United States v. Wright, 324 Fed.Appx. 800, 804 (11th Cir.2009) (citing Texas v. Brown, 460 U.S. 730, 741-42 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983)). “Probable cause” is a “flexible, common-sense standard” that merely requires that “the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be ... useful as evidence of a crime.” Brown, 460 U.S. at 742 , 103 S.Ct. 1535 (quoting Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925)).
In her sworn statement, Mrs. Lynch attested that the police officer who came to her home knew of the existence of the murder-suicide letter and was searching for it. (Ex. F-5 at 835.) 10 She was reading the letter when the officer said he needed it as evidence. (Ex. A4 at 100.) Petitioner argues that the nature of the letter could not have been immediately apparent to the officer because the officer would have had to read the letter to determine whether it was written by Petitioner and whether it referenced the offenses. (Doc. No. 13 at 54-55.) Petitioner’s interpretation of the plain view doctrine is too narrow. The officer did not need to know that the letter was evidence of the offenses; rather, he needed probable cause to believe that the letter was the one for which he was searching. See United States v. Smith, 459 F.3d 1276 , 1293 (11th Cir.2006); Brown, 460 U.S. at 741 , 103 S.Ct. 1535 (the phrase “immediately apparent” does not imply “that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine.”). Common sense dictates that the officer could have reasonably believed that the letter he observed Mrs. Lynch reading while he was searching her home was the same letter she identified to the 911 dispatcher as having been written by Petitioner. See United States v. Herzbrun, 723 F.2d 773, 775 (11th Cir.1984) (“[Pjrobable cause must not be judged with clinical detachment, but with a common sense view to the realities of normal life.”); United States v. Blum, 753 F.2d 999, 1002 (11th Cir.1985) (“The appellant argues that there is no way the agent could immediately have recognized a box full of miscellaneous papers as evidence without going through the box and reading each item to determine its evidentiary importance.... Once the agents saw [some of the evidence, however,] the evidentiary value of these would be apparent.”).
Because Mrs. Lynch consented to the officer’s search of the home she shared with Petitioner, the officer was lawfully in the home when he observed Mrs. Lynch reading the murder-suicide letter in plain *1315 view, the incriminating character of which was immediately apparent. Therefore, the murder-suicide letter was admissible under the plain view doctrine, and no search warrant was necessary. Because the murder-suicide letter was admissible, even had counsel moved to exclude it from evidence or objected to an overly broad warrant, there is not a reasonable probability that the result of the sentencing proceedings would have been different. See Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) (where a Sixth Amendment violation is claimed in the context of counsel’s failure to present a Fourth Amendment claim, the petitioner must show that the Fourth Amendment claim is meritorious). Furthermore, the evidence supporting the CCP aggravator was substantial even without consideration of the letter. Accordingly, the state court’s determination on this issue was not contrary to, or an unreasonable application of, federal law. See Brownlee, 306 F.3d at 1066 . This subclaim is denied.
4. Firearms Expert or Accidental Shooting
Petitioner alleges that counsel were ineffective for failing to consult an independent firearms expert to testify that each of the seven shots fired from a Glock firearm was accidental. (Doc. No. 13 at 66.) Petitioner contends that he was prejudiced by counsel’s failure because an independent firearms expert could have presented an accidental discharge defense in support of mitigation, lessening the impact of the CCP and HAC aggravating circumstances. (Doc. No. 1 at 5.) Petitioner also argues that the trial court independently examined the Glock used in the murders and based his denial of the claim partly upon the improper in-chambers examination of the firearm. (Doc. No. 1 at 15.) 11
Petitioner raised this issue in his Rule 3.851 motion. An evidentiary hearing was held on the claim, and Petitioner presented the testimony of Roy Ruel (“Ruel”) to testify that each of the seven shots from the Glock pistol could have been fired accidentally. (Ex. F-14 at 353-95.) The post-conviction court found Ruel’s testimony not to be credible, calling him “among the least credible experts this Court has ever heard testify.” (Ex. F-12 at 2037.) The trial court also determined that it was inconceivable that the Glock could have been accidentally fired seven times “and accidentally hit the same person four of the seven times. In such a situation, the person is a target and not the unintended victim of accidental discharge.” Id.
Petitioner takes issue with the trial court’s determination of Ruel’s credibility, arguing that the trial court’s rejection of Ruel was not based on substantial evidence in the record. (Doc. No. 13 at 67.) Petitioner offers no support for his contention that the trial court was not allowed to discount a witness’ credibility unless the witness is impeached or contradicted. Ruel’s testimony was completely contrary to evidence presented at the penalty phase of Petitioner’s trial by the State’s firearms expert, by a neighbor who witnessed part of the incident, and by the medical examiner.
Nannette Rudolph, the State’s firearms expert, testified that the Glock operated properly. (Ex. A-5 at 284-316.) In contrast, Ruel testified that the Glock had a very short trigger pull and that Rudolph had not disclosed such during her testimony. (Ex. F-14 at 376.)
Morgan’s neighbor, Yahira Morales (“Morales”) testified that, after hearing a disturbance, she looked through her apartment peephole, across the hall from Mor *1316 gan’s apartment, and watched Petitioner drag a screaming Roseanna Morgan by the wrists. She said that Petitioner knocked on Morgan’s apartment door, telling the occupant to “hurry up, open the door, your mom is hurt.” (Ex. A-4 at 61.) Morales observed that Morgan was bloody only from the waist down. Id. at 62. Morales heard three gunshots after Petitioner dragged Morgan into the apartment. Id. at 63. Ruel completely disregarded Morales’ testimony because he believed that at least one of the three shots she heard must have been fired with the apartment door open and because he “was very dubious that one could see all this and hear all this through ... a closed door with just an eye piece.” Accordingly, he credited Morales with a “very vivid imagination” and rejected her testimony. (F-14 at 385, 391.)
Medical examiner Charles Siebert indicated that Morgan was initially shot in the legs. (Ex. A-7 at 689.) Siebert further testified that Morgan had defensive wounds on her hands that were inconsistent with being shot first in the head. Id. at 690. In contrast, Ruel’s theory was that Morgan was accidentally shot outside the apartment four times, with the apartment door open, and with the first shot necessarily entering the back of her head and exiting her eye. Petitioner then accidentally fired three additional shots, also with the apartment door open, before dragging Morgan inside the apartment. (Ex. F-14 at 393.) Ruel testified that the Glock shot to Morgan’s head could have only happened outside because no bullets were embedded in the floor of the apartment. Id. at 388.
Determinations of credibility are best made by the trial court judge who can assess the demeanor and candor of the witnesses. Gore, 492 F.3d at 1300 (noting that while a reviewing court also gives a certain amount of deference to credibility determinations, that deference is heightened on habeas review), citing Rice v. Collins, 546 U.S. 333, 341-42 , 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006) (stating that “[r]easonable minds reviewing the record might disagree about the [witness’] credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination”). The trial court was entitled to disregard Ruel’s testimony and to credit the contrary evidence presented by the State’s witnesses at the penalty phase. Petitioner has offered no basis to overcome the presumption of correctness entitled to a credibility determination on habeas review.
The Supreme Court of Florida affirmed the trial court’s denial of this claim, determining that the evidence presented during both the penalty phase and post-conviction proceedings was “clearly inconsistent with an accidental-discharge defense.” Lynch, 2 So.3d at 68 (emphasis in original).
The only “evidence” contained in the record supporting an accidental-discharge claim consisted of (1) Lynch’s self-serving rationalization that he accidentally shot Roseanna Morgan four times, accidentally shot Leah Caday in the back, and then switched weapons to “put [Morgan] out of her misery” by intentionally shooting her in the back of the head; and (2) Roy Ruel’s unsubstantiated assertion during the postconviction proceeding that one can unintentionally discharge a properly functioning Glock G30 seven separate times, while striking an unintended target with nearly sixty-percent accuracy (Lynch fired seven shots from the Glock and struck Morgan four times). Trial counsel made a strategic decision not to assert a baseless defense, and “[c]ounsel’s strategic decisions will not be second-guessed on collateral attack.” Johnson v. State, 769 So.2d 990, 1001 (Fla.2000) (citing Remeta v. Dugger, 622 So.2d 452 (Fla.1993)).
*1317 The strategic decision of trial counsel not to pursue an accidental-discharge defense did not affect Lynch’s election to plead guilty because the facts of this case are simply inconsistent with accidental discharge. Moreover, this analysis applies with equal force to Lynch’s penalty-phase accidental-discharge claim.
Id. at 69-70 (emphasis in original).
Even if this Court completely ignored the state court’s credibility determination, a review of trial counsels’ testimony supports the determination of the Supreme Court of Florida that the decision to fore-go an accidental discharge defense was a reasonable strategic decision. At the evidentiary hearing, Figgatt testified that he had not investigated the theory of a misfiring Glock because more than one gun was used in the murders and the idea of a misfire made no sense because the Glock is not an automatic pistol. (Ex. F-13 at 91, 94.) Figgatt believed that he could not make a credible argument that Petitioner accidentally pulled the trigger seven separate times. (Ex. F-15 at 406-08.) Likewise, Caudill testified that he believed nothing would have been gained by presenting an accidental discharge defense because, under the theories of felony murder and transferred intent, Petitioner still would have been guilty of first degree murder. (Ex. F-18 at 1111-12.)
The question of whether an attorney’s actions were actually the product of a tactical or strategic decision is an issue of fact, and the state court’s decision concerning that issue is presumptively correct. Provenzano, 148 F.3d at 1330 . Based upon information in the record, counsel made a reasonable strategic decision to forego an accidental discharge defense. Trial counsel’s strategic and tactical choices are largely unassailable. See Strickland, 466 U.S. at 690-91 , 104 S.Ct. 2052 ; Mincey v. Head, 206 F.3d 1106 , 1143 (11th Cir.2000) (“We must respect the counsel’s tactics if they seem ‘reasonable considering all the circumstances.’ ” (quoting Strickland)). Based on the record, the state court’s determinations that an accidental discharge defense would have been meritless and counsel were not ineffective for failing to raise this claim at the penalty phase are neither contrary to, nor an unreasonable application of, Strickland. See Broumlee, 306 F.3d at 1066 . Thus, this subclaim is denied pursuant to Section 2254(d).
B. Claim Two
Petitioner asserts that the post-conviction judge demonstrated actual or perceived bias in the post-conviction proceeding. In support of this claim, Petitioner maintains that the judge made himself a material witness and demonstrated bias by testing the Glock firearm used during the offenses in chambers without notice to the parties. Petitioner further argues that the judge demonstrated that he had marked personal feelings against Petitioner by refuting Petitioner’s definition of ex parte and by making statements such as, “Lynch takes the Court to task”, in the Second Amended Order Denying Motion for Posi>Conviction Relief.
Petitioner raised this claim on appeal from the denial of his Rule 3.851 motion. In denying relief, the Supreme Court of Florida reasoned that the judge, as the fact-finder, “merely examined evidence” and “drew nonscientific conclusions from his manual manipulation of the weapon, which were consistent with the testimony of the firearms experts.” Lynch, 2 So.3d at 80 (citing Fla. R.Crim. P. 3.400(a)(3) for the proposition that “[t]he court may permit the jury, upon retiring for deliberation, to take to the jury room ... all things received in evidence other than depositions.”). The court held:
*1318 [T]he postconviction court’s in-camera manual manipulation of the Glock’s trigger to corroborate the claims of the firearms experts that (1) the gun was properly functioning, and (2) that the trigger pull was within the normal range, was not improper and did not display judicial bias. The judge did not engage in any independent scientific or ballistics testing. Rather, he simply held the weapon — which had been admitted into evidence — and pulled the trigger. None of his conclusions required any specialized training or knowledge beyond that which had been imparted by the testifying firearms experts; further, all of his conclusions were drawn from and supported by the testimony of these experts.
In sum, we conclude that recusal or disqualification was unwarranted in this case because the judge, sitting as the factfinder, did not exhibit any bias when he examined a murder weapon that was indisputably in evidence. The postconviction court thus properly denied Lynch’s motion to disqualify as legally insufficient. However, in the future, we caution that judges should not interpret our denial of an emergency petition for writ of prohibition here as a license to address the merits of the underlying recusal or disqualification motion.
Id. at 79-80 .
The Supreme Court of the United States has held that the Due Process Clause provides criminal defendants with a right to a fair and an impartial judge who is neutral, detached, and free from “actual bias.” In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955); see also Bracy v. Gramley, 520 U.S. 899, 905-06 , 117 S.Ct. 1793 , 138 L.Ed.2d 97 (1997). In making a determination of whether the trial judge was biased, the inquiry must include “whether there was actual bias on [the judge’s] part, ... [and] whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ” Taylor v. Hayes, 418 U.S. 488, 501 , 94 S.Ct. 2697 , 41 L.Ed.2d 897 (1974) (quoting Ungar v. Sarafite, 376 U.S. 575, 588 , 84 S.Ct. 841 , 11 L.Ed.2d 921 (1964)). “In only two types of cases has the Supreme Court actually held that something less than actual bias violates constitutional due process — (1) those cases in which the judge ‘has a direct, personal, substantial pecuniary interest in reaching a [particular] conclusion,’...; and (2) certain contempt cases, such as those in which the ‘judge becomes personally embroiled with the contemnor ....’” Railey v. Webb, 540 F.3d 393, 399 (6th Cir.2008) (quoting Turney v. Ohio, 273 U.S. 510, 523 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927) and Murchison, 349 U.S. at 141 , 75 S.Ct. 623 ).
Moreover, “a judge’s reliance, in imposing the death penalty, on information not disclosed to the defendant or his attorney violate[s] the defendant’s rights to due process and freedom from cruel and unusual punishment.” Proffitt v. Wainwright, 685 F.2d 1227, 1253 (11th Cir.1982) (citing Gardner v. Florida, 430 U.S. 349, 362 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977)). “[D]eath sentences may not constitutionally be imposed on the basis of information that the capital defendant has been afforded no opportunity to rebut.” Id. (citing Gardner, 430 U.S. at 362 , 97 S.Ct. 1197 ).
The Eleventh Circuit has applied a harmless error analysis in limited circumstances when a Gardner violation is found to exist. In Delap v. Dugger, 890 F.2d 285, 302 (11th Cir.1989), the Eleventh Circuit concluded that the Gardner violation was harmless beyond a reasonable doubt. The appellate court noted that “[t]he trial judge’s consideration of the statutory ag *1319 gravating factors could not have been affected by anything the judge observed on his visit to death row, as all of the factors relate either to the crime itself or to the defendant’s prior criminal record.” Delap, 890 F.2d at 302 .
The record in this case supports the state court’s denial of this claim. The post-conviction judge, who was also the trial judge, served as the fact-finder in this case. The Glock was admitted into evidence during the penalty phase of the trial. The State’s expert witness testified during the penalty phase regarding the operation of the Glock, and Ruel testified during the post-conviction proceeding about the operation of the Glock. The judge did not utilize facts or evidence of which the parties were not aware in determining whether counsel was ineffective for failing to investigate and call a firearms expert to testify about the accidental firing of the gun. Instead, the judge, as the fact-finder, considered the evidence presented regarding the functioning of the firearm and evaluated the firearm in accordance with the experts’ testimony by pulling the trigger of the firearm. The judge did not actually shoot the firearm or conduct ballistics testing of the weapon.
Moreover, the statements that Petitioner contends demonstrate judicial bias were made after the judge had ruled on the merits of Petitioner’s post-conviction motion. The statements also were not of such a nature as to demonstrate that the judge had marked personal feelings against Petitioner. Furthermore, Petitioner’s criticisms of the judge were not the type of “insults ... apt to strike ‘at the most vulnerable and human qualities of a judge’s temperament ....’” Mayberry v. Pennsylvania, 400 U.S. 455, 466 , 91 S.Ct. 499 , 27 L.Ed.2d 532 (1971) (quoting Bloom v. Illinois, 391 U.S. 194, 202 , 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968)). Petitioner has not demonstrated that the judge’s comments demonstrate actual bias warranting relief pursuant to Supreme Court precedent, nor do the statements show perceived bias of a nature that has been determined by the Supreme Court to violate due process. See, e.g., Buntion v. Quarterman, 524 F.3d 664, 672-76 (5th Cir.2008) (holding in a capital case that trial judge’s statements such as, “sooner or later” the defendant would be convicted and executed, and judge’s actions, which included ex parte interaction with defense counsel, did not establish either actual or presumptive bias pursuant to clearly established Supreme Court precedent). In sum, the Court concludes that the state court’s denial of this claim was not objectively unreasonable given Supreme Court precedent. Accordingly, claim two is denied pursuant to Section 2254(d).
C. Claim Three
Petitioner contends that the trial court denied him his due process right to present evidence in support of his claims of ineffective assistance of counsel. Specifically, Petitioner argues that the trial court refused to allow him to present the testimony of Robert Norgard (“Norgard”), an attorney with twenty-five years of experience defending capital cases, to establish the prevailing norms for capital defense attorneys in Florida in 1999 through 2001.
Petitioner raised this claim on appeal from the denial of his Rule 3.851 motion. In denying this claim, the Supreme Court of Florida first noted that Petitioner had failed to raise a due process objection to the trial court’s refusal to allow Norgard’s testimony, and thus, the claim was not cognizable on appeal. Lynch, 2 So.3d at 80-81 . Nevertheless, the court determined that Petitioner failed to demonstrate a due process violation based on the trial court’s evidentiary ruling. Id. at 81 . The court reasoned:
*1320 Lynch provides no decision which has held that a postconviction court abuses its discretion when it precludes expert testimony with regard to the prevailing norms of capital representation. The High Court’s explicit reference in Strickland to the ABA guidelines demonstrates that expert testimony is not the only source of evidence to establish standards of capital representation. Indeed, during the evidentiary hearing, Norgard stated that “there are a number of ways that Capital Collateral Counsel can present to the Court information about what is expected of a criminal defense attorney.” Further, the Strickland Court noted that the ABA standards “and the like” are “only guides,” which indicates that such evidence is not something that must be received into evidence for a postconviction court to properly evaluate trial counsel’s effectiveness during a capital case. 466 U.S. at 688 , 104 S.Ct. 2052 (emphasis supplied).
Finally, even if the refusal to admit expert testimony concerning the norms of capital representation constitutes an abuse of discretion under certain discrete circumstances, it does not here. Under section 90.702, Florida Statutes, expert testimony is admissible only where “specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.” Hypothetically, a situation could exist in which a judge presiding over a postconviction case could receive the testimony of an expert to assist the court in determining whether trial counsel rendered ineffective assistance.
Conversely, here, the presiding post-conviction judge has been adjudicating capital cases in Florida for many years. He is extremely seasoned in this field, and even the testifying expert conceded this point. During his testimony, attorney Norgard was of the opinion that a judge who has recently left the bench would not meet the minimum qualifications to serve as lead capital counsel. When the postconviction judge asked Norgard, “You don’t think I could get away with it?,” Norgard respo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8702770. Public record. Not legal advice.