finding it unlikely that similar expert testimony would have impacted the jury’s determination of guilt because "[d]efense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence. It is, therefore, not reason- ably probable that presenting expert testimony earlier would have resulted in a different verdict."
How later courts described this case
- finding it unlikely that similar expert testimony would have impacted the jury’s determination of guilt because "[d]efense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence. It is, therefore, not reason- ably probable that presenting expert testimony earlier would have resulted in a different verdict."
- concluding -- without evidentiary hearing on whether counsel’s strategy arose from his ignorance of law -- that trial counsel’s performance was competent because hypothetical competent counsel reasonably could have taken action at trial identical to actual trial counsel
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Davis v. Singletary, 119 F.3d 1471 (1997)
844 F.2d 1464, 1470 (11th Cir. 1988) (en banc), partially overruled on other grounds, Davis v. Singletary, 119 F.3d 1471, 1481-82
Abrogated in part, on other grounds by Romano v. Oklahoma, 512 U.S. 1 (1994)
844 F.2d 1464, 1471 (11th Cir.1988) (en banc), partially abrogated on other grounds by Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994),
The opinion
HILL, Circuit Judge,
specially concurring:
I fully concur in the court’s decision and I agree with the court’s resolution of the merits of the Caldwell claim. I write only to express my view that the court need not have reached the merits of the Caldwell issue because the claim was proeedurally barred.
The court affirms the panel’s holding on the question of procedural default, which was based upon the decision in Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986). While I agree that Adams supports the panel’s decision that the claim was not pro-eedurally barred, I believe that the court, sitting en banc, should revisit the default issue decided in Adams .
In Adams, 804 F.2d at 1530 , the court held that Caldwell represented a significant change in the law and that the change provided sufficient “cause” to excuse a procedural default. I disagree that Caldwell was such a change in the law. It seems to me that a competent litigator in any case would quickly and strenuously object to an argument or jury instruction which led the jury “to believe that the responsibility for determining the appropriateness of [its verdict] rests elsewhere.” Caldwell, 472 U.S. at 328-29, 105 S.Ct. at 1639.
It may be instructive to venture outside of the tangled web of capital case jurisprudence in considering this question. In a typical damage suit, for example, an instruction or argument which led the jury to underestimate its role in the decision making process would be error. The jury may not be told that it need not be concerned about the consequences of its verdict, and I believe that the objections to such statements would be made with or without the guidance of the Caldwell decision. Given that, I cannot agree that Caldwell represents a significant change in the law.
The court in Adams 804 F.2d at 1530 n. 5, noted that Caldwell-type claims were not being raised by other defendants at the time of that defendant’s trial. The court attributed this to a lack of awareness of the potential claim. There is, however, a *1480 simpler explanation for the scarcity of such claims, namely, the scarcity of Caldwell- type violations. I believe that this may, in fact, explain the failure of the present petitioner to raise the claim earlier. It may very well be that he did not fail to recognize the existence of a claim so much as he failed to recognize the existence of a violation because there was, as the court holds, no violation.
The court has, however, held that the Caldwell claim in this case was not procedurally barred, and inasmuch as the court reaches the issue on the merits, I concur in the decision that there was no violation.