finding state court’s conclusion of no prejudice reasonable because (1) jury had heard some evidence of defendant’s mental and emotional state, and evidence as to other possible non-statutory mitigating factors, from penalty phase witnesses, (2) new evidence would have come at cost of introducing damaging testimony, and (3) strong aggravating factors existed
How later courts described this case
- finding state court’s conclusion of no prejudice reasonable because (1) jury had heard some evidence of defendant’s mental and emotional state, and evidence as to other possible non-statutory mitigating factors, from penalty phase witnesses, (2) new evidence would have come at cost of introducing damaging testimony, and (3) strong aggravating factors existed
- 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
- concluding that "[petitioner] has not shown by clear and convincing evidence that the Florida Supreme Court's factual finding . . . [wa]s unreasonable in light of the evidence in the state court record"
- rejecting ineffectiveness based on failure to present mitigating evidence, and distinguishing Wiggins, noting that the new mitigation in Wiggins was not counterproductive or inconsistent with the other mitigation offered while Rutherford’s mitigation “would have come with a price”
Written by the judges who cited it.
The opinion
WILSON, Circuit Judge,
concurring:
I concur in the result of the majority’s opinion, with the following additional observation. The Supreme Court instructs that “[i]n assessing prejudice in an ineffective assistance of counsel claim, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527, 2542 , 156 L.Ed.2d 471 (2003) (emphasis added). The mental health expert mitigation evidence could have provided the jury some context into which to put this senseless crime. In addition, it could have bolstered the lay testimony about the effects of Vietnam on Rutherford. Importantly, the jury vote at the penalty phase was far from unanimous. Given the closeness of the jury’s vote to recommend a death sentence (7-5), I conclude that there exists a reasonable probability that the result of the proceedings would have been different if trial counsel had presented the mental health evidence. Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052, 2068 , 80 L.Ed.2d 674 (1984).
However, to succeed on a claim of ineffective assistance of counsel, Rutherford must also show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688 , 104 S.Ct. at 2064 . The state court determined that counsel made a reasonable strategic decision not to introduce the mental health evidence. Rutherford v. State, 727 So.2d 216, 222-24 (Fla.1998). I conclude that this decision was not “objectively unreasonable” as that term was elucidated in Wiggins, 123 S.Ct. at 2534-35 , Bell v. Cone, 535 U.S. 685, 689 , 122 S.Ct. 1843, 1852 , 152 L.Ed.2d 914 (2002), and Williams v. Taylor, 529 U.S. 362, 413 , 120 S.Ct. 1495, 1524-25 , 146 L.Ed.2d 389 (2000). Accordingly, I concur with the result of the majority’s opinion and would affirm the district court’s denial of Rutherford’s petition for a writ of habeas corpus.