Petition for Writ of Certiorari — Brandy Bain Jennings, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Supreme Court briefJun 14, 2023

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No. _____

IN THE SUPREME COURT OF THE UNITED STATES

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BRANDY BAIN JENNINGS,

Petitioner,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

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APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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VOLUME I of II

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CAPITAL CASE

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PAUL KALIL

Fla. Bar No. 174114

Assistant CCRC–South

kalilp@ccsr.state.fl.us

*Counsel of Record

June 14, 2023

Capital Collateral Regional Counsel – South

110 S.E. 6th Street, Suite 701

Fort Lauderdale, Florida 33301

Tel. (954) 713-1284

INDEX TO APPENDICES

VOLUME I of II

Appendix A

Eleventh Circuit Court of Appeals Opinion affirming the denial

of habeas corpus relief, Jennings v. Sec'y, Fla. Dep't of Corr.,

55 F.4th 1277 (11th Cir. Dec. 13, 2022)

Appendix B

Eleventh Circuit Court of Appeals Order Denying

Rehearing/Rehearing En Banc

Appendix C

United States District Court, Southern District of Florida, Order

Denying Petition for Writ of Habeas Corpus

Appendix D

Florida Supreme Court opinion affirming the denial of

postconviction relief, Jennings v. State,

123 So. 3d 1101 (Fla. 2013)

VOLUME II of II

Appendix E

Circuit Court Final Order Denying Motion for Postconviction

Relief (Jan. 31, 2011)

Appendix F

Florida Supreme Court Opinion on Direct Appeal,

Jennings v. State, 718 So. 2d 144 (Fla. 1998)

APPENDIX A

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11591

____________________

BRANDY BAIN JENNINGS,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:13-cv-00751-SPC-MRM

____________________

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Before JORDAN, BRANCH, and BRASHER, Circuit Judges.

BRANCH, Circuit Judge:

Brandy Bain Jennings is a Florida prisoner serving three

death sentences for the 1995 murders of Dorothy Siddle, Vicki

Smith, and Jason Wiggins during a robbery at the Cracker Barrel

where Jennings formerly worked. 1 After pursuing a direct appeal

and postconviction relief in the Florida state courts, Jennings filed

a federal habeas petition under 28 U.S.C. § 2254, alleging, in

relevant part, that his counsel rendered constitutionally ineffective

assistance during the penalty phase. After the district court denied

Jennings’s § 2254 petition on the merits, we granted a certificate of

appealability (“COA”) on one issue: “Whether the district court

erred in denying Jennings’s claim that his trial counsel rendered

ineffective assistance in the penalty phase of his capital trial by

failing to conduct further investigation into Jennings’s childhood

and background.”

After review and with the benefit of oral argument, we

conclude that the Florida Supreme Court’s decision that Jennings

failed to establish prejudice was not contrary to, or an

unreasonable application of, clearly established federal law, and we

affirm on that ground.

1 Jennings is also serving 15 years’ imprisonment for the robbery.

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Background

A. Guilt Phase of the Trial

In 1995, a Florida grand jury indicted Jennings and

codefendant Jason Graves with three counts of premeditated

murder and one count of robbery. 2 Public Defenders Tom Osteen

and Adam Sapenoff were appointed to represent Jennings. The

trial took place in October 1996. The Florida Supreme Court

summarized the facts of this case as follows:

Dorothy Siddle, Vicki Smith, and Jason Wiggins, all

of whom worked at the Cracker Barrel Restaurant in

Naples, were killed during an early morning robbery

of the restaurant on November 15, 1995. Upon

arriving on the scene, police found the bodies of all

three victims lying in pools of blood on the freezer

floor with their throats slashed. Victim Siddle’s hands

were bound behind her back with electrical tape;

Smith and Wiggins both had electrical tape around

their respective left wrists, but the tape appeared to

have come loose from their right wrists.

Police also found bloody shoe prints leading from the

freezer, through the kitchen, and into the office,

2 Graves was 18 years’ old at the time of the crimes, and the State agreed to

waive the death penalty in Graves’s case in exchange for his waiver of a motion

for a continuance to allow him more time to prepare for a capital trial. Graves

was convicted on all charges in a separate proceeding and sentenced to the

only available sentence—life imprisonment.

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blood spots in and around the kitchen sink, and an

opened office safe surrounded by plastic containers

and cash. Outside, leading away from the back of the

restaurant, police found scattered bills and coins, shoe

tracks, a Buck knife, a Buck knife case, a pair of bloodstained gloves, and a Daisy air pistol.

Jennings (age twenty-six) and Jason Graves (age

eighteen), both of whom had previously worked at

the Cracker Barrel and knew the victims, were

apprehended and jailed approximately three weeks

later in Las Vegas, Nevada, where Jennings ultimately

made lengthy statements to Florida law enforcement

personnel. In a taped interview, Jennings blamed the

murders on Graves, but admitted his (Jennings’)

involvement in planning and, after several aborted

attempts, actually perpetrating the robbery with

Graves. Jennings acknowledged wearing gloves

during the robbery and using his Buck knife in taping

the victims’ hands, but claimed that, after doing so,

he must have set the Buck knife down somewhere

and did not remember seeing it again. Jennings

further stated that he saw the dead bodies in the

freezer and that his foot slipped in some blood, but

that he did not remember falling, getting blood on his

clothes or hands, or washing his hands in the kitchen

sink. Jennings also stated that the Daisy air pistol

belonged to Graves, and directed police to a canal

where he and Graves had thrown other evidence of

the crime.

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In an untaped interview the next day, during which

he was confronted with inconsistencies in his story

and the evidence against him, Jennings stated, “I think

I could have been the killer. In my mind I think I

could have killed them, but in my heart I don’t think

I could have.”

At trial, the taped interview was played for the jury,

and one of the officers testified regarding Jennings’

untaped statements made the next day. The items

ultimately recovered from the canal were also

entered into evidence.

The medical examiner, who performed autopsies on

the victims, testified that they died from “sharp force

injuries” to the neck caused by “a sharp-bladed

instrument with a very strong blade,” like the Buck

knife found at the crime scene. A forensic serologist

testified that traces of blood were found on the Buck

knife, the Buck knife case, the area around the sink,

and one of the gloves recovered from the crime

scene, but in an amount insufficient for further

analysis.

An impressions expert testified that

Jennings’ tennis shoes recovered from the canal

matched the bloody shoe prints inside the restaurant

as well as some of the shoe prints from the outside

tracks leading away from the restaurant.

...

The State also presented testimony concerning

previous statements made by Jennings regarding his

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dislike of victim Siddle. Specifically, Bob Evans, one

of the managers at Cracker Barrel, testified that

Jennings perceived Siddle to be holding him back at

work and that, just after Jennings quit, he said about

Siddle, “I hate her. I even hate the sound of her

voice.” Donna Howell, who also worked at Cracker

Barrel, similarly testified that she was aware of

Jennings’ animosity and dislike of Siddle, and that

Jennings had once said about Siddle, “I can’t stand the

bitch. I can’t stand the sound of her voice.”

The jury found Jennings guilty as charged.

Jennings v. State, 718 So. 2d 144, 145–47 (Fla. 1998) (footnotes

omitted).

B. The Penalty Phase

Following the jury’s guilty verdict, Jennings’s penalty phase

proceeded the very next day. The trial court instructed the jury

that its sentencing determination was an advisory

recommendation and that “[t]he final decision as to what

punishment shall be imposed rests solely with the judge.” 3 The

3 At the time of Jennings’s trial, the jury’s sentencing determination was

advisory and required only a majority vote, but the trial court was required to

place “great weight” upon the recommendation of the jury. See Fla. Stat.

§ 921.141(2) (1996); Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (holding

that jury recommendation “should be given great weight”), abrogated by

Hurst v. Florida, 577 U.S. 92 (2016). A vote of six or more jurors was necessary

for a recommendation of life imprisonment. State v. Steele, 921 So. 2d 538,

545 (Fla. 2005), abrogated by Hurst, 577 U.S. at 92; see also Reynolds v. State,

251 So. 3d 811, 827 (Fla. 2018) (explaining that under Florida’s former capital

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trial court further instructed that under Florida law, it was

“required to give great weight and deference” to the jury’s

recommendation.

Jennings called six witnesses during the penalty phase—

Michael Lobdell, Angela Lobdell, Brian McBride, Rebecca Lloyd,

Mary Hamler, and his mother Tawny Jennings. These witnesses

all testified very positively to Jennings’s character, collectively

stating that Jennings was a good friend to everyone, a good son,

“happy-go-lucky,” “easy going,” “fun-loving,” wonderful with

children, and not a troublemaker.

On cross-examination, the State elicited testimony from

Angela and Michael Lobdell that Jennings came to their home the

day after the murder, and he was not acting any differently.

Additionally, McBride testified that the day before the robbery,

Jennings told McBride that he was working at a mall on a

construction job and that he was getting paid the next day and

sentencing scheme, a jury “had various options for recommendations,

including life, 7–to–5 death, 8–to–4 death, 9–to–3 death, 10–to–2 death, 11–to–

1 death, and unanimous death outcomes”).

Florida has since amended its capital sentencing scheme and now

requires that, in order for the jury to recommend a death sentence, the jury

must unanimously find the existence of at least one aggravating factor and

unanimously agree that the defendant should be sentenced to death. Fla. Stat.

§ 921.141(2) (2021). However, the jury’s recommendation that the defendant

be sentenced to death is still advisory, and the trial court may override the

recommendation. Id. § 921.141(3).

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would be heading to California.

Hamler—who was in a relationship with Jennings for a

couple of years—testified on cross-examination that one time

when they were watching a news broadcast about a robbery,

Jennings stated that he “wouldn’t be stupid enough to stick

around” and that he “would go north.” She also stated that

Jennings was very angry with Cracker Barrel because it had told

him to cut off his ponytail if he wanted “to advance himself,” and

his ponytail was part of his Indian heritage. She confirmed that

Jennings cut his ponytail off and had a grudge against Cracker

Barrel because he was not promoted. Jennings held victim

Dorothy Siddle particularly responsible, and told Hamler “[o]ne

day [Siddle] would get hers.” 4

Lastly, Tawny Jennings, Jennings’s mother, testified to

Jennings’s background and the close relationship she shared with

her son. Specifically, she testified that Jennings’s father was a Sioux

Indian, and she divorced him while she was pregnant with

Jennings. Jennings never met his father. Jennings was her only

4 Siddle was an associate manager at the Cracker Barrel restaurant. During

the guilt phase of the trial, another associate manager testified that Jennings,

who was a grill cook, wanted to cross-train to become a server, but

management told him that he had some areas he needed to improve first,

including his “basic appearance, clothes, . . . [his] big long ponytail, . . . and

also his attitude.” It is unclear from the record whether Siddle was the

associate manager tasked with relaying this information to Jennings, but as a

scheduling manager, she would have been the person to schedule the desired

cross-training.

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living child. 5 She and Jennings moved a lot. They lived in Oregon

for the first nine years of Jennings’s life, then they moved to

Colorado (for about a year and a half), moved back to Oregon (for

six months), then moved to Wyoming (for a year), then moved

back to Oregon (for a year), then Arizona, and finally Florida when

Jennings was about 14 or 15 years’ old. Tawny was a single mom

all of Jennings’s childhood, and she occasionally had “a male

companion” that lived with them. According to Tawny, Jennings

was a straight-A student in school, but he had to quit high school

at 17 because Tawny became very ill, and he needed to care for her.

Tawny explained that she and Jennings were “very close” like “best

friends,” and that she could not have asked for a better son.

In closing, the State argued that it had established three

statutory aggravating factors:6 (1) that the murders were

5 Tawny had twins that died of crib death before Jennings was born.

6 At the time of Jennings’s trial, Florida law defined aggravating circumstances

as the following:

(a) The capital felony was committed by a person under

sentence of imprisonment or placed on community control.

(b) The defendant was previously convicted of another capital

felony or of a felony involving the use or threat of violence to

the person.

many persons.

(d) The capital felony was committed while the defendant was

engaged, or was an accomplice, in the commission of, or an

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committed while Jennings engaged in or was an accomplice in the

commission of the crime of robbery;7 (2) the murders were

attempt to commit, or flight after committing or attempting

to commit, any robbery . . . .

(e) The capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape

from custody.

(f) The capital felony was committed for pecuniary gain.

(g) The capital felony was committed to disrupt or hinder the

lawful exercise of any governmental function or the

enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or

cruel.

(i) The capital felony was a homicide and was committed in a

cold, calculated, and premeditated manner without any

pretense of moral or legal justification.

(j) The victim of the capital felony was a law enforcement

officer engaged in the performance of his official duties.

(k) The victim of the capital felony was an elected or appointed

public official engaged in the performance of his official duties

if the motive for the capital felony was related, in whole or in

part, to the victim’s official capacity.

(l) The victim of the capital felony was a person less than 12

years of age.

Fla. Stat. § 921.141(5) (1996).

7 In support of this aggravator, the State emphasized that the bloody shoe

prints in the restaurant led from the freezer where the victims were to the

office where the money was located.

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committed for the purpose of avoiding or preventing a lawful

arrest; 8 and (3) the murders were committed in a cold, calculated,

and premeditated manner. 9

In response, Jennings’s counsel argued that the second and

third aggravator did not apply. Jennings’s counsel also argued that

the State’s contention that Jennings wanted to get revenge against

Siddle because Jennings cut off his ponytail but then did not get the

promotion was “a red herring” because Jennings and Graves did

not know who the manager would be the morning of the robbery.

8 In support of the second aggravator, the State emphasized that Jennings and

Graves wore gloves so as to not leave identifying fingerprints. The State

pointed out that they had masks with them in the truck, and Jennings admitted

in a statement to law enforcement that the initial plan had been to wear masks

and snatch the money. The State argued that they chose not to wear the

masks because they knew there was no reason to wear masks if they were

going to eliminate the witnesses. The State also pointed to the testimony from

the guilt phase that Jennings stated that if he ever committed a robbery, he

would not leave any witnesses.

9 In support of this third aggravator, the State argued that Jennings carried the

knife and killed the victims in a very personal way, one by one. The State also

emphasized that there was evidence of calculated premeditation, including

that Jennings attempted to set up an alibi; he and Graves brought tape with

them to bind the victims; they wore gloves; they hid the truck; they registered

in a hotel both before and after the crime using their own names (which

demonstrated that they were not concerned with being linked to the crime

because they knew they were not leaving any witnesses); and the day after

Jennings went to a friend’s house and was not acting any different.

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Finally, counsel argued that there were several mitigating

factors in Jennings’s life—“[h]is mother moved him about the

country when he was young, quite a bit”; “[h]e never received a

proper education”; “[h]e never knew his father” and “never had a

continuous father image in his home”; he was an only child

without any siblings to lean on; “[h]e had a succession of boyfriends

of his mother’s who lived in the home from time to time”; he loved

his mother and quit school to help her when she got sick; Jennings

worked and contributed positively to society; and he had friends

and people liked him. Counsel also reminded the jury that Graves

would receive a life sentence for the same offenses and begged the

jury to “show mercy” on Jennings.

The jury deliberated approximately an hour and a half and

returned a 10 to 2 recommendation in favor of the death penalty

for each of the three murder counts.

At the separate sentencing hearing, the trial court addressed

the aggravating and mitigating circumstances. First, the trial court

found the existence of the three aggravating factors proffered by

the State. Second, the trial court found one statutory mitigating

factor—Jennings had no significant prior criminal history, which it

gave some weight.10 Third, the trial court found the following

10 Florida law provided for the following statutory mitigating circumstances:

(a) The defendant has no significant history of prior criminal

activity.

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non-statutory mitigating circumstances: (1) Jennings had a

“deprived childhood”—he never knew his father, his father

abandoned his mother, his mother moved around frequently

during his childhood years and had several boyfriends (given some

weight); (2) Jennings’s codefendant received life imprisonment for

the same crimes based on the same evidence (given some weight);

(3) Jennings cooperated with law enforcement and made a

voluntary statement that led officers to various items of evidence

(b) The capital felony was committed while the defendant was

under the influence of extreme mental or emotional

disturbance.

consented to the act.

(d) The defendant was an accomplice in the capital felony

committed by another person and his participation was

relatively minor.

(e) The defendant acted under extreme duress or under the

substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the requirements

of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

Fla. Stat. § 921.141(6) (1996). Jennings argued for three statutory mitigating

circumstances: (1) he had “no significant history of prior criminal activity”;

(2) he was an accomplice in the offense and his participation was relatively

minor; and (3) Jennings acted under “extreme duress or under the substantial

domination of another person.” See Fla. Stat. § 921.141(6)(a), (b), and (e)

(1996). The trial court found that the second and third statutory mitigators

Jennings argued for did not exist.

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(given substantial weight); (4) Jennings had a regular, steady

employment history (given little weight); (5) Jennings had a close,

loving relationship with his mother (given little weight);

(6) Jennings had “[p]ositive personality traits enabling the

formation of strong, caring relationships with peers” (given some

weight); (7) Jennings had a “[c]apacity to care for and be mutually

loved by children” (given some weight); and (8) Jennings exhibited

“exemplary courtroom behavior” during the proceedings (given

little weight).

The trial court found that “the aggravating

circumstances . . . substantially outweigh[ed] the mitigating

circumstances present” and that death was the appropriate

sentence. Accordingly, the trial court imposed a sentence of death

for each of the three murder counts and 15 years’ imprisonment

for the robbery count.

On direct appeal, the Florida Supreme Court affirmed

Jennings’s convictions and sentences, and the United States

Supreme Court denied certiorari. Jennings, 718 So. 2d at 144, cert.

denied, 527 U.S. 1042 (1999). 11

11 The Florida Supreme Court rejected Jennings’s argument that the evidence

was insufficient to support the avoid arrest aggravator and the cold, calculated,

and premeditated aggravator. Jennings, 718 So. 2d at 150–53.

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C. State Postconviction Proceedings

Thereafter, Jennings, through counsel, filed a state

postconviction motion to vacate his judgment of conviction and

sentence, under Florida Rule of Criminal Procedure 3.850 and

3.851, followed by several amended motions. In relevant part, he

argued in two related claims that his counsel rendered

constitutionally ineffective assistance when he failed to adequately

investigate, prepare, and present mitigation at the penalty phase,

including failing to adequately investigate his background and

childhood, which he alleged contained a wealth of mitigation

evidence, and failed to provide background information to the

mental health experts that evaluated him prior to trial. The state

postconviction court ordered an evidentiary hearing on his claims,

at which Jennings presented several witnesses.

Evidentiary Hearing Testimony

As relevant to this appeal, Jennings’s trial counsel, Thomas

Osteen, who had extensive capital case experience at the time he

represented Jennings,12 testified that an investigator, a courtappointed psychiatrist, Dr. Robert Wald, and a court-appointed

12 Osteen testified that he retired in 2000, but he had been an assistant public

defender for 30 years, and he had represented approximately 30 capital

defendants prior to representing Jennings in 1996. Osteen also testified that

co-counsel Adam Sapenoff did not play any role in the penalty phase other

than being present.

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psychologist, Dr. Russell Masterson, assisted him with preparation

for Jennings’s trial and the penalty phase. 13

Dr. Masterson conducted various tests on Jennings and the

results were all within normal limits. Dr. Masterson opined that

Jennings had superior intelligence, and his testing results revealed

no evidence of “psychotic process,” but “suggest[ed] the

personality disorder, characterological disorder, sociopathic type

of personality.”

With regard to Jennings’s background, Dr. Masterson noted

the following in his report: (1) Jennings and his mother moved

around Colorado, Wyoming, Oregon, and Arizona during his

childhood; (2) his mother had multiple relationships; (3) Jennings

never met his father; (4) Jennings reported being a straight-A

student, with no behavior problems; (5) Jennings “always had lots

of friends” and described his childhood as “pretty normal” and “a

13 Osteen utilized the Public Defender’s Office’s Investigator, Ed Neary, who

was a retired police investigator and assisted Osteen in “just about all of [his]

capital cases.” Although Neary did not have any formal mental health training

or expertise, Osteen believed that Neary had “a good feel” for those types of

issues. Osteen also testified that he worked regularly with both Dr. Wald and

Dr. Masterson in other cases, and that they “knew what [he] was looking for.”

Osteen did not seek assistance from a mitigation expert, which he

explained were “not prevalent” at the time of the trial. Instead, he relied on

what he learned from Dr. Wald and Dr. Masterson. Osteen did not attempt

to obtain school records, employment records, or medical records, and he did

not attempt to interview any of Jennings’s relatives other than Jennings’s

mother.

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pretty good first 15 years”; (6) Jennings became sexually active at

age 12 when he was seduced by an older woman he babysat for,

but he indicated his “first sexual experiences” were at age 5 or 6

with a female cousin who was age 10; (7) Jennings denied any

history of sexual abuse from adults; (8) at age 15, Jennings and his

mother moved to Florida and his life “did a 180”—Jennings did not

like the Florida school, he was bored, and he felt rejected by his

peers, and he got into drugs, alcohol, and street racing; (9) as a teen,

Jennings got into a fight with his mother’s boyfriend and

hospitalized him—the boyfriend had been drunk and attacked

Jennings’s mother; (10) Jennings dropped out of school his junior

year of high school; (11) after dropping out, he “got into bar fights

and was into acid, pot, and alcohol”; (12) he had regular

employment in various occupations; (13) in 1989 or 1990, when a

man threatened a woman Jennings was dating, Jennings kidnapped

the man, had a firearm with him, and planned to kill the man, but

he was arrested and pleaded no contest to attempted armed

robbery (he was sentenced to a year in county jail and five years’

probation); (14) while in jail, he was in “30 or 40 fights” but never

got in trouble; (15) in 1992, “his life kind of fell apart” and he got

heavy into drugs and alcohol and moved back in with his mother;

(16) in 1994, he moved in with Mary Hamler—he loved her three

kids a lot, but “really didn’t care about her”; and (17) after he and

Hamler broke up, Jennings moved in with codefendant Graves.

Dr. Wald’s report indicated that Jennings self-reported

similar information concerning his childhood, educational

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history, 14 and background. 15 Jennings also reported that he saw a

psychiatrist when he was eight years’ old due to his “bad temper,”

including one instance where he choked his cousin for laughing at

him. Dr. Wald agreed with Dr. Masterson’s assessment that

Jennings’s testing was all relatively normal and opined that

Jennings was very intelligent, with no mental disorders or brain

dysfunction, and that Jennings had a “sociopathic personality.”16

After reviewing their reports, Osteen elected not to call Dr.

Wald or Dr. Masterson during the penalty phase. 17

14 Dr. Wald reviewed Jennings’s school records from Florida, noting that they

were “essentially non-contributory” to his report and indicated that Jennings

struggled with several courses.

15 Dr. Wald also noted that Jennings suffered a concussion at age 2 or 3 after

he was hit on the head by a wooden board, which resulted in his

hospitalization, and that Jennings had a lengthy history of drug and alcohol

abuse that began in his teens. Jennings had a “number of prior arrests,”

primarily for traffic violations, but including a shoplifting arrest in his teens

and his arrest on attempted armed robbery. Jennings also self-reported that

he “ha[d] stolen things for both money and . . . the ‘adrenalin[e] rush.’”

Jennings indicated that “he [sought] gratification, [did] not feel at all

remorseful about crimes he ha[d] committed, and ha[d] experienced no guilt

relative to legal infractions.”

16 Dr. Wald attempted to interview Jennings’s mother, who was very resistant

at first, and then she did not show up for the scheduled interview.

17 Osteen explained that it was part of his trial strategy not to call Dr. Wald or

Dr. Masterson as witnesses because, after speaking with them, he “came to

the conclusion that [their testimony] would not be helpful to a great extent,

and so [he] decided to rely on [Jennings’s] mother and his friends to come

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In addition to Osteen’s testimony, at the state

postconviction evidentiary hearing, Jennings presented testimony

from three experts in support of his claims—Dr. Thomas Hyde, a

behavioral neurologist, Dr. Hyman Eisenstein, a clinical

psychologist and expert in neuropsychology, and Dr. Faye Sultan,

a clinical psychologist. Dr. Hyde and Dr. Eisenstein both testified

that Jennings suffered a number of closed head injuries 18 and had

a history of febrile convulsions (seizures) between the ages of 8

months and 2 years. Dr. Hyde opined that the seizures were a

typical indicator of abnormal brain function; and that a history of

head trauma may predispose a person to “some long-lasting

neurological effects from brain damage.” Nevertheless, Dr. Hyde

forward and make as many good statements as they could about the

defendant.” He also did not want to call the doctors as witnesses because there

was information in their reports—such as Jennings’s criminal history—that he

did not want the jury to know about, particularly because he was arguing for,

and received, the no significant criminal history statutory mitigator.

18 Specifically, Jennings reported to Dr. Hyde and Dr. Eisenstein that he was

hit in the head with a 2x4 piece of wood as a toddler; kicked in the head by a

pony at age 4 or 5; punched in the face as a teen; ran into a brick wall at age

16; engaged in a head-butting competition as a teen; was involved in multiple

fights and suffered blows to the head; and was involved in a motorcycle

accident (Jennings denied any head injury from motorcycle accident, but Dr.

Eisenstein opined that “it was impossible that he didn’t have a closed head

injury” from it).

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opined that Jennings’s neurological examination was normal “for

the most part.” 19

Following testing, Dr. Eisenstein opined that Jennings was

“gifted” with learning disabilities that went untreated. 20 Dr.

Eisenstein also diagnosed Jennings with intermittent explosive

disorder, which is characterized by explosive aggressive responses

that are not proportionate to the provocation. Dr. Eisenstein

opined that the following statutory mitigating circumstances

applied to Jennings—(1) his capacity to appreciate the criminality

of his conduct or to conform his conduct to the law was impaired,

and (2) he was under the influence of an extreme mental or

emotional disturbance when he committed the murders.

Dr. Faye Sultan testified that her investigation revealed that

Jennings’s maternal grandfather was “overtly sexual” with his

daughters, and that Tawny (Jennings’s mother) was molested by

19 Dr. Hyde noted three “subtle neurological findings”—(1) Jennings’s pupils

were asymmetrical (one was larger than the other); (2) he had a “postural

tremor” in one hand; and (3) he had one unspecified “frontal release sign,” but

he admitted that these subtle findings can also be present “in normal

individuals.”

20 Dr. Eisenstein explained that some of Jennings’s scores were excellent,

while others were “indicative of a brain dysregulation” and a learning

disability. Dr. Eisenstein noted that although both Jennings and his mother

indicated that Jennings was a straight-A student, his school records—although

missing a number of years—revealed that was not true.

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her brother, George “Sonny” Jennings.21 Some of the people

Sultan interviewed witnessed Jennings sit on Sonny’s lap as a child,

and Jennings reported that Sonny paid him a quarter to sit on his

lap. Walter Croom, who married one of Jennings’s cousins, was

also a child molester, and he occasionally babysat Jennings.

However, Dr. Sultan confirmed that Jennings denied any sexual

abuse and there was no direct evidence indicating that any had

occurred, although she speculated it could have given the

environment that he grew up in. Dr. Sultan concluded that

Jennings grew up in extreme poverty and neglect and in an

environment that involved “the sexualization of children.” She

testified that children who grow up in that type of environment

“don’t develop normally neurologically” and are “quite impulsive,

sometimes aggressive, over sexualized themselves, often substance

abusers to the extreme.”

Based on her interviews with Jennings’s mother, Dr. Sultan

opined that Tawny was “quite mentally ill”—although she could

not offer any formal diagnosis—and Tawny had an “abnormal

attachment” to Jennings when he was a child. Dr. Sultan noted

that Tawny “behaved very oddly” toward Jennings, citing the fact

that Tawny breastfed him until he was five, and an unspecified

21 Tawny told Jennings at a very young age that she was a victim of sexual

abuse, and Dr. Sultan opined that such knowledge produces significant

emotional distress in children and “it certainly contributed” to “Jennings’[s]

state.” And Jennings stated that at one time, he believed his uncle Sonny might

be his biological father.

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person Sultan interviewed purportedly witnessed Tawny engage in

sex in the presence of Jennings. 22

Dr. Sultan’s interpretation of Jennings’s testing results “was

quite similar” to Dr. Masterson’s interpretation. Dr. Sultan

explained that Jennings was of above average intelligence, likely to

be a serious substance abuser, had difficulty controlling his anger,

was easily frustrated, extroverted, had a rigid personality, and was

able to have relationships with other persons, but they were not

likely to be long-lasting ones. Dr. Sultan also opined that Jennings

had intermittent explosive disorder. She further opined that

Jennings did not suffer from any mental illness, and that “he did not

meet the standards for [Florida’s] statutory mitigators.”

Nevertheless, she thought Jennings was “quite a damaged person”

who “operate[d] in the world . . . in a highly dysfunctional way.”

Finally, Jennings presented mitigation testimony from

family and friends. Jennings’s cousin, Patricia Scudder, testified

that, between the ages of 6 and 12, Jennings and Tawny lived in a

three-bedroom cabin-type home at the Buccaneer Apartments

(also known as the Buccaneer Motel). Scudder stayed with

Jennings and his mother for two-week periods on three different

22 Dr. Eisenstein similarly opined that Tawny was not a good mother, lacked

parenting skills, and was not an accurate historian of Jennings’s background

because she had been a victim of physical, sexual, and emotional abuse.

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occasions. 23 She described the condition of their apartment during

her first stay as “[v]ery, very messy” with clothes piled everywhere

and there were “[d]irty [k]otexes” around the apartment. But on

cross-examination, she clarified that the reason why she was

staying with them was because Jennings’s mother had just had

surgery, was immobile, and needed help. The second time Patricia

stayed with them, Jennings’s mother was again having health issues

and needed help. On this occasion, Jennings’s mother had a new

puppy, and there were puppy papers and dog poop on the floor,

and dirty dishes everywhere. Patricia stated that Tawny prepared

quick simple meals like toast, gravy, or hamburgers, and allowed

Jennings to eat a lot of junk food.

According to Patricia, Jennings regularly slept in the same

bed with his mother at 5 or 6 years’ old. On one occasion, Patricia

observed three men stay the night in Tawny’s home while Jennings

was home. The next morning after two of the men had left,

Patricia walked into the apartment, and Tawny and her boyfriend

were “cuddled up together” on the hide-a-bed in the living room,

unclothed—although not engaged in any sexual act—and Jennings

was lying on the floor watching tv. Nevertheless, despite her

testimony concerning the squalor of Jennings’s living conditions

and poor parenting skills of Tawny, Patricia described Jennings’s

23 Other than the three two-week periods that Patricia stayed with them, she

saw Jennings and his mother “[n]ot very often at all.” And she lost touch with

them after they moved in 1990, and she did not know anything about the case

until years after the trial.

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and his mother’s relationship as “very loving” and explained that

she had never “seen a mother and a son as close” as they were.

Patricia’s husband, Lloyd, testified that Sonny molested

Patricia, and Croom molested his and Patricia’s son, and that Sonny

and Croom had the opportunity to be around Jennings. Lloyd also

testified that he smoked marijuana with Tawny regularly, and that

she also took a lot of pain pills because of health issues. Lloyd

thought Tawny was a bad mother—describing her as selfish,

unemployed, and a poor housekeeper and cook. 24 Lloyd often

took Jennings fishing, taught him how to box, and did other things

with him, like a father figure. But Lloyd lost touch with Jennings

after Tawny moved from Oregon.

Next, Heather Johnson testified that she was “good friends”

with Jennings for a couple of years when they were 17 or 18 years’

old. She stated that Jennings often expressed unhappiness, conflict,

and resentment with his mother. At the time of Jennings’s trial,

Johnson no longer lived in Florida, but she was contacted via letter

by Jennings’s defense team, asking if she could give any “good

word” or character statement on behalf of Jennings and whether

she knew of anyone else who would be willing to testify on his

behalf. She wrote back stating that she was not sure that she could

be of much help because she and Jennings had lost contact and had

24 When asked how Tawny supported herself, Lloyd stated that she was on

welfare and speculated that she made money “[p]robably hooking.”

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not spoken in years. 25 She did not hear back from Jennings’s

counsel, but she would have been willing to testify.

Lastly, Kevin McBride testified that he was friends with

Jennings when they were teenagers in Florida, and, at one point,

Jennings lived with him for a few months when Jennings’s mother

“was in between places.” He described Jennings’s mother as a

“very nice lady” who was “always friendly” but unstable

financially. He recalled that Jennings and his mother were more

like friends than mother and son. He stated that Jennings drank

and used marijuana on a daily basis, and he and Jennings used acid

and mushrooms on occasion.26 McBride confirmed that he met

with one of Jennings’s investigators at the time of Jennings’s trial,

but that he was not asked to testify.

25 Specifically, Johnson advised in her response that “[a]ll [she could] offer

[was] a brief summary of the Brandy Bain Jennings that [she] knew and loved,

and even that may not be a sterling character reference.” She went on to

describe that Jennings was her best friend, confidant, and protector—a big

brother type, who taught her things and made her feel safe. But he was also

“often foolish” and would do impulsive things without considering the

consequences. She stated that she believed he could have committed the

robbery because it was a way to act out the anger and frustration that he had

a difficult time expressing, but she did not believe him capable of murder. She

also advised that she could not think of anyone else who would be willing to

help Jennings.

26 Bruce Martin, half-brother to Kevin McBride, similarly testified at the

evidentiary hearing that Jennings drank heavily, used marijuana every day,

and used acid about once a week.

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Trial Court Denies Jennings’s Postconviction Motion

Following the evidentiary hearing, the trial court denied

Jennings’s postconviction motion on the merits. Florida v.

Jennings, No. 1995-CF-02284, 2011 WL 11573988 (Fla. Cir. Ct. Jan.

31, 2011). The trial court concluded that counsel’s mitigation

investigation was not deficient because the record demonstrated

that counsel interviewed Jennings’s mother and various friends and

called witnesses during the penalty phase that he thought could

present positive information, which was “proper trial strategy.” Id.

at *4–6. Finally, the trial court concluded that Jennings could not

show prejudice because, even if counsel had introduced all of the

information in question, there was no reasonable probability of a

different outcome. Id. at *6. Jennings appealed to the Florida

Supreme Court.

iii.

Florida Supreme Court’s Decision

The Florida Supreme Court determined that counsel made

a reasonable strategic decision to not present mitigation testimony

from Dr. Wald and Dr. Masterson during the penalty phase

“because it could open the door to other damaging testimony.”

Jennings v. State, 123 So. 3d 1101, 1114 (Fla. 2013) (Jennings II)

(quotation omitted). The court concluded that counsel was not

“deficient for choosing to pursue other mitigation evidence that he

determined was more likely to help Jennings at trial.” Id. Finally,

the court held that Jennings failed to establish prejudice because

the trial court found as a nonstatutory mitigation that Jennings had

a deprived childhood, and the omitted information concerning

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Jennings’s troubled childhood and emotional development did

“not rise to the level of unpresented mitigation previously held to

be prejudicial.” Id. at 1117–18.

D. Federal § 2254 Habeas Proceeding

Following the denial of state postconviction relief, Jennings

filed a § 2254 federal habeas petition in the United States District

Court for the Middle District of Florida, raising several claims. As

relevant to this appeal, he combined his arguments that counsel

was ineffective for failing to conduct an adequate investigation into

mental health mitigation and his childhood background into a

single claim. Specifically, he argued that counsel was ineffective at

the penalty phase because (1) counsel’s mitigation investigation

was minimal and he failed to obtain medical or school records and

failed to provide such records to the experts; and (2) counsel made

no effort to truly investigate Jennings’s background and childhood,

which would have revealed a wealth of compelling mitigation. 27

The district court denied the petition, concluding that the

state court’s determination that counsel was not deficient was not

contrary to, or an unreasonable application of, Strickland v.

27 Jennings also took issue with the adequacy, sufficiency, and competency of

Dr. Wald’s and Dr. Masterson’s reports and Osteen’s reliance on those

allegedly deficient reports, but as his counsel acknowledged during oral

argument, that issue is beyond the scope of the COA in this case. See Murray

v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that “in an

appeal brought by an unsuccessful habeas petitioner, appellate review is

limited to the issues specified in the COA”).

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Washington, 466 U.S. 668 (1984). Jennings v. Sec’y, Dep’t of Corr.,

No. 2:13-cv-751-FtM-38MRM, 2020 WL 7047706, *9–11 (M.D. Fla.

Dec. 1, 2020). Because the district court found that the

performance prong was not satisfied, it did not address the

prejudice prong. Id. The district court denied Jennings a COA, and

he sought a COA from this Court. Id. at *21. As noted previously,

we granted Jennings a COA on one issue: “Whether the district

court erred in denying Jennings’s claim that his trial counsel

rendered ineffective assistance in the penalty phase of his capital

trial by failing to conduct further investigation into Jennings’s

childhood and background.”

II.

Standard of Review

We review the district court’s denial of a § 2254 habeas

petition de novo. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.

2010).

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) establishes a “highly deferential standard for evaluating

state-court rulings, [and] demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,

181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

(per curiam)). Thus, under AEDPA, a federal court’s review of a

final state habeas decision is greatly circumscribed, and a federal

habeas court cannot grant a state petitioner habeas relief on any

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

state court’s 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)(1)–(2).

“[C]learly established Federal law” means “the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of the

time of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 412 (2000). “[T]o be ‘contrary to’ clearly established

federal law, the state court must either (1) apply a rule that

contradicts the governing law set forth by Supreme Court case law,

or (2) reach a different result from the Supreme Court when faced

with materially indistinguishable facts.” Ward, 592 F.3d at 1155

(quotations omitted); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

An “unreasonable application” of federal law occurs “if the

state court correctly identifies the governing legal principle from

[the Supreme Court’s] decisions but unreasonably applies it to the

facts of the particular case.” Bell, 535 U.S. at 694. “[A]n

unreasonable application of federal law is different from an

incorrect application of federal law.” Williams, 529 U.S. at 410

(emphasis omitted). “Indeed, ‘a federal habeas court may not issue

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the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.’” Renico v. Lett,

559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at 411); see

also Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (“To meet [the

unreasonable application] standard, a prisoner must show far more

than that the state court’s decision was merely wrong or even clear

error.” (quotation omitted)). Rather, the state court’s application

of federal law “must be ‘objectively unreasonable,’” Renico, 559

U.S. at 773, meaning that “the state court’s decision is so obviously

wrong that its error lies beyond any possibility for fairminded

disagreement, Shinn, 141 S. Ct. at 523 (quotations omitted). “This

distinction creates a substantially higher threshold for obtaining

relief than de novo review.” Renico, 559 U.S. at 773 (quotation

omitted).

“[W]hen the last state court to decide a prisoner’s federal

claim explains its decision on the merits in a reasoned opinion . . .

a federal habeas court simply reviews the specific reasons given by

the state court and defers to those reasons if they are reasonable.”

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). However, we are

not limited by the particular justifications the state court provided

for its reasons, and we may consider additional rationales that

support the state court’s determination. Pye v. Warden, Ga. Diag.

Prison, 50 F.4th 1025, 1036 (11th Cir. 2022) (en banc). A state

court’s decision is reasonable “so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.”

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Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)).

In addition, “a determination of a factual issue made by a

State court shall be presumed to be correct,” and the petitioner

bears “the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). With these

principles in mind, we turn to the merits of Jennings’s appeal.

III.

Discussion

Jennings argues that Osteen was constitutionally ineffective

by failing to adequately investigate and present mitigation

evidence related to his childhood and background, and in failing to

obtain and provide relevant background records to Dr. Wald and

Dr. Masterson.

To succeed on a claim of ineffective assistance of counsel in

violation of the Sixth Amendment, a petitioner must establish two

elements. Strickland, 466 U.S. at 687. “First, the defendant must

show that counsel’s performance was deficient.” Id. Review of

counsel’s actions is “highly deferential” and “a court must indulge

a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689.

“Second, the defendant must show that the deficient

performance prejudiced the defense.” Id. at 687. Prejudice occurs

when there is a reasonable probability that, “but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. “When a defendant challenges a death

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sentence . . . the question is whether there is a reasonable

probability that, absent the errors, the sentencer—including an

appellate court, to the extent it independently reweighs evidence—

would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” 28 Id. at 695.

“The likelihood of a different result must be substantial, not just

conceivable.” Harrington, 562 U.S. at 112. In determining whether

there is a reasonable probability of a different result, a court must

“consider ‘the totality of the available mitigation evidence—both

that adduced at trial, and the evidence adduced in the habeas

proceeding’—and ‘reweig[h] it against the evidence in

aggravation.’” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting

Williams, 529 U.S. at 397–98).

Because both prongs of the Strickland standard “must be

satisfied to show a Sixth Amendment violation, a court need not

address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Ward, 592 F.3d at 1163.

Furthermore, the Strickland standard is a general standard, which

means that “a state court has even more latitude to reasonably

determine that a defendant has not satisfied that standard.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Renico,

28 Again, at the time of Jennings’s trial, only a majority 7-5 vote was necessary

to recommend death. Reynolds, 251 So. 3d at 827 (explaining that under

Florida’s old capital sentencing scheme, a jury “had various options for

recommendations, including life, 7–to–5 death, 8–to–4 death, 9–to–3 death,

10–to–2 death, 11–to–1 death, and unanimous death outcomes”).

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559 U.S. at 776 (“Because AEDPA authorizes federal courts to grant

relief only when state courts act unreasonably, it follows that ‘[t]he

more general the rule’ at issue—and thus the greater the potential

for reasoned disagreement among fair-minded judges—‘the more

leeway [state] courts have in reaching outcomes in case-by-case

determinations.’” (quoting Yarborough, 541 U.S. at 664)).

Here, we need not address Jennings’s arguments related to

the performance prong because the Florida Supreme Court’s

determination that Jennings failed to establish prejudice was not

contrary to, or an unreasonable application of, Strickland or based

on an unreasonable determination of the facts. The mitigation

evidence offered in Jennings’s postconviction proceedings

primarily related to non-statutory mitigation. Specifically, in

addition to Jennings’s positive character traits and relationships

that the jury and judge originally heard during the penalty phase,

had the evidence submitted at the postconviction proceeding been

presented at the penalty phase, the jury and the sentencing judge

would also have learned of Jennings’s chaotic childhood; his

mother’s poor parenting skills; his family’s history of sexual

abuse; 29 Jennings’s drug and alcohol abuse; his history of head

29 Jennings argues that the Florida Supreme Court unreasonably discounted

the evidence of sexual abuse in his family and the effect that such an

environment would have had on Jennings’s emotional and mental

development in contravention of the Supreme Court’s decision in Porter.

Contrary to Jennings’s argument, the Florida Supreme Court did not discount

the evidence of sexual abuse to “irrelevance” but instead determined that it

was of minimal value because evidence of sexual abuse of Jennings’s family

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injuries and febrile seizures; that his neurological testing was

normal despite repeated head injuries; that he did not have any

mental illness; that he had intermittent explosive disorder and that

two experts believed he had sociopathic personality traits; that

Jennings had above-average intelligence; and that he had a history

of criminal acts, some of which were violent.

Given the facts of this case, it was not unreasonable for the

state court to conclude that Jennings was not prejudiced by

counsel’s failure to present the mitigation evidence in question

during the penalty phase. As an initial matter, there is a significant

probability that much of the omitted mitigation evidence when

combined with that adduced at trial, would have undermined

some of the mitigating factors that the trial court found—namely,

that (1) Jennings had no significant prior criminal history

(Jennings’s only statutory mitigating factor), (2) he had a close,

loving relationship with his mother, and (3) he had “positive

personality traits enabling the formation of strong, caring

relationships with peers.” And we have held that it is not an

members “might have been mitigating in establishing [his] troubled childhood

and emotional development,” but the trial court already found as a nonstatutory mitigating factor that he had a deprived childhood. Jennings II, 123

So. 3d at 1118. It was not contrary to, or an unreasonable application of,

clearly established federal law for the Florida Supreme Court to determine

that the evidence of familial sexual abuse was of minimal value given that

Jennings expressly denied any personal history of sexual abuse, and there was

no other evidence indicating that Jennings himself suffered any sexual abuse

from any family members.

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unreasonable application of Strickland to conclude that there is no

prejudice when much of the mitigation evidence would have

constituted a double-edged sword. See Gavin v. Comm’r, Ala.

Dep’t of Corr., 40 F.4th 1247, 1269 (11th Cir. 2022) (holding that

mitigation evidence “could have been a double-edged sword,” and,

therefore, the state court reasonably applied Strickland when it

concluded that petitioner could not establish prejudice); Ponticelli

v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1296 (11th Cir. 2012)

(“[B]oth the Supreme Court and this Court have consistently

rejected [the] prejudice argument [ ] where mitigation evidence

was a two-edged sword or would have opened the door to

damaging evidence.” (second and third alterations in original)

(quotations omitted)).

Furthermore, there were significant aggravating factors

present in this case—(1) the murders were committed while

Jennings was engaged in or was an accomplice in the commission

of a robbery; (2) the murders were committed for the purpose of

avoiding or preventing a lawful arrest or to effectuate an escape

from custody; and (3) the crimes were committed in a cold,

calculated, premeditated manner. Notably, the cold, calculated,

and premeditated factor is one of “the weightiest aggravating

factors in Florida’s capital sentencing scheme.” Carr v. State, 156

So. 3d 1052, 1071 (Fla. 2015) (quotations omitted). And as the state

postconviction court noted, the nature of, and circumstances

surrounding, the three murders in this case were particularly

heinous. “We’ve repeatedly held that even extensive mitigating

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evidence wouldn’t have been reasonably likely to change the

outcome of sentencing in light of a particularly heinous crime and

significant aggravating factors.” Pye, 50 F.4th at 1049 (collecting

cases); see also Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d 1255,

1287–88 (11th Cir. 2013) (holding that petitioner could not show

prejudice based on mitigation evidence of depraved, impoverished,

and abusive childhood where one of the aggravating factors was

the cold, calculated, and premeditated aggravator). Thus, in light

of the facts of this case, we cannot say that the Florida Supreme

Court’s determination that Jennings did not suffer prejudice was so

obviously wrong as to be beyond any possibility for fairminded

disagreement, which is “the only question that matters” under

§ 2254(d). Shinn, 141 S. Ct. at 526; see also Jones v. Sec’y, Fla. Dep’t

of Corr., 834 F.3d 1299, 1312–17 (11th Cir. 2016) (holding that state

court’s determination that the petitioner failed to demonstrate

prejudice was reasonable where the mitigating evidence was of

limited value and there were significant aggravating factors).

To the extent that Jennings argues that his case is analogous

to Porter or Sears v. Upton, 561 U.S. 945 (2010), and that those

cases compel a finding of prejudice in this case, his argument is

unpersuasive. The mitigating evidence in Porter was significantly

more compelling than that presented in Jennings’s case. For

instance, in Porter, the jury never heard that (1) he suffered from

brain damage that could result in “impulsive, violent behavior”;

(2) that he had “heroic military service in two of the most critical—

and horrific—battles of the Korean War”; (3) he suffered from

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Opinion of the Court

Page: 37 of 38

mental health issues following the war; (4) he had an extensive

history of childhood physical abuse by his father; and (5) that

Porter was in special education classes and left school at the age of

12 or 13. 558 U.S. at 33–37, 41. More importantly, in Porter, the

Supreme Court reasoned that, had the jury heard this extensive

mitigation, there was a reasonable probability that the jury would

have struck a different balance given that there appeared to be only

one aggravating factor that tipped the scales in favor of a death

sentence. Id. at 41–42. In contrast, although Jennings’s mitigation

evidence included details about a deprived and impoverished

childhood and that he had a history of head trauma, there was no

evidence of brain dysfunction, mental illness—indeed Jennings’s

experts opined that he was very intelligent with no mental

disorders or brain dysfunction—or physical or sexual abuse, and

Jennings’s death sentence was supported by three significant

aggravating factors. Given the significant differences between

Porter and the case at hand, Porter cannot compel a finding of

prejudice in this case.

Similarly, the mitigation evidence in Sears was far stronger

than that in Jennings’s case. The mitigation evidence in Sears

included that (1) Sears “suffer[ed] from substantial cognitive

impairment” and he was “among the most impaired individuals in

the population in terms of ability to suppress competing impulses

and conform behavior”; (2) he had a history of head trauma and

“significant frontal lobe abnormalities”; (3) he grew up in a volatile,

physically abusive home; and (4) he suffered sexual abuse from a

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21-11591

family member. 561 U.S. at 948–50. Furthermore—and this is a

crucial difference—Sears was not subject to AEDPA’s deferential

review standard because the Sears appeal was not from a federal

petition for a writ of habeas corpus; instead, Sears had appealed

from the state court’s decision directly to the United States

Supreme Court. Id. at 946. Moreover, Sears did not involve a

finding of prejudice. Rather, the Supreme Court determined that

the state court failed to apply the proper prejudice inquiry, and it

remanded the case for the state court to conduct “[a] proper

analysis of prejudice” in the first instance. Id. at 956 (“It is for the

state court—and not for either this Court or even [the dissenting

Justice]—to undertake [the prejudice inquiry] in the first

instance.”). Thus, Sears cannot compel a finding of prejudice in

Jennings’s case.

Accordingly, we affirm the district court’s denial of

Jennings’s habeas petition.

AFFIRMED.

APPENDIX B

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 21-11591-P

________________________

BRANDY BAIN JENNINGS,

Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

BEFORE: JORDAN, BRANCH, and BRASHER, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc. (FRAP 35) The Petition for

Panel Rehearing is also denied. (FRAP 40)

ORD-46

USCA11 Case: 21-11591

Document: 33-2

Date Filed: 02/14/2023

Page: 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.ca11.uscourts.gov

February 14, 2023

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 21-11591-P

Case Style: Brandy Jennings v. Secretary, Florida Department

District Court Docket No: 2:13-cv-00751-SPC-MRM

The enclosed order has been entered on petition(s) for rehearing.

See Rule 41, Federal Rules of Appellate Procedure, and Eleventh Circuit Rule 41-1 for

information regarding issuance and stay of mandate.

Clerk's Office Phone Numbers

General Information

New / Before Briefing Cases

Cases in Briefing / After Opinion

Cases Set for Oral Argument

Capital Cases

Attorney Admissions

CM/ECF Help Desk

404-335-6100

404-335-6135

404-335-6130

404-335-6141

404-335-6200

404-335-6122

404-335-6125

REHG-1 Ltr Order Petition Rehearing

APPENDIX C

Case 2:13-cv-00751-SPC-MRM Document 69 Filed 12/01/20 Page 1 of 52 PageID 1091

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

BRANDY BAIN JENNINGS,

Petitioner,

Case No.: 2:13-cv-751-FtM-38MRM

SECRETARY, DEPARTMENT

OF CORRECTIONS and

ATTORNEY GENERAL, STATE

OF FLORIDA,

Respondents.

OPINION AND ORDER1

Before the Court is Petitioner Brandy Bain Jennings’ Amended Petition

for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 61). Jennings,

through counsel, challenges his 1996 convictions for three counts of murder

and one count of robbery, for which he was sentenced to death by the Twentieth

Judicial Circuit Court, in and for Collier County, sitting in Pinellas County,

Florida.2 He raises the following grounds for relief: (1) Jennings was denied

effective assistance of counsel at the penalty phase in violation of the Sixth,

Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By

using hyperlinks, the Court does not endorse, recommend, approve, or guarantee

any third parties or the services or products they provide, nor does it have any

agreements with them. The Court is also not responsible for a hyperlink’s

availability and functionality, and a failed hyperlink does not affect this Order.

Jennings’ trial was conducted in Pinellas County pursuant to an order granting a

change of venue.

Case 2:13-cv-00751-SPC-MRM Document 69 Filed 12/01/20 Page 2 of 52 PageID 1092

Eighth, and Fourteenth Amendments; (2) Jennings’ convictions and sentences

are materially unreliable because trial counsel was ineffective for failing to

adequately impeach the prejudicial testimony of Angela Cheney; (3) the

postconviction court erred in summarily denying several claims in violation of

the Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) the trial court

should have suppressed Jennings’ statements to law enforcement authorities

and all evidence derived from it, as the statements were obtained in violation

of his right to counsel; and (5) Jennings’ death sentence violates the Sixth and

Eighth Amendments and due process because a jury did not make the findings

of fact necessary to render him eligible for a death sentence. (Id.).

Respondents filed an amended response (Doc. 66), and Jennings filed a

reply (Doc. 67).

I. Timeliness and Evidentiary Hearing

Respondent concedes the Petition is timely filed. (Doc. 66 at 39-40). The

Court agrees.

Jennings asks for an evidentiary hearing on each of his claims. (Doc. 61

at 27). In support, he claims, “The state court evidentiary development was

limited in fundamental ways and inadequate.” (Id. at 38). Respondent argues

Jennings does not carry his burden of establishing his entitlement to an

evidentiary hearing. (Doc. 66 at 46-47).

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A federal court “must limit its review under § 2254(d) to the state court’s

record.” Brannon v. Sec'y, Fla. Dep't of Corr., No. 19-13757, 2020 WL 2188675,

at *5 (11th Cir. May 6, 2020) (finding district court erred in granting

evidentiary hearing and considering evidence not before the state court).

“An evidentiary hearing is

unnecessary

unless

would

“enable

postconviction petitioner] to prove the petition’s factual allegations, which, if

true, would entitle [him] to federal habeas relief.” Samuels v. Sec'y, Dep't of

Corr., No. 19-13445, 2020 WL 2097260, at *1 (11th Cir. May 1, 2020) (quoting

Crowe v. Hall, 490 F.3d 840, 847 (11th Cir. 2007)). “[T]he burden is on the

petitioner to establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla.

Dep’t of Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert.

denied, __ U.S. __, 137 S. Ct. 2245 (2017). Conclusory allegations will not

suffice. Instead, a petitioner must proffer specific facts and evidence, which, if

true, would prove an entitlement to relief. Id. at 1319.

Jennings has set forth no specific facts or evidence which warrant an

evidentiary hearing. As discussed infra, Jennings does not establish that the

state court erred in summarily denying certain claims. The Court finds an

evidentiary hearing is not warranted because the material facts are developed

in the record. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record

refutes the factual allegations in the petition or otherwise precludes habeas

relief, a district court need not hold an evidentiary hearing); see also Jones, 834

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F.3d at 1318-19.

Jennings has not demonstrated he is entitled to an

evidentiary hearing, 28 U.S.C. § 2254(e)(2), and therefore his request for an

evidentiary hearing is denied.

II. Factual and Procedural Background

A. Trial and Sentence

On December 20, 1995, a grand jury returned indictments charging

Jennings and Charles Jason Graves with three counts of premeditated murder

and one count of robbery. (Direct Appeal Record (DA) at 20-21). Tom Osteen

and Adam Sapenoff from the Office of the Public Defender represented

Jennings.

Graves was represented by private counsel.

Jennings filed a

pretrial motion to suppress statements made to law enforcement (DA at 152)

and motion for change of venue (DA at 108).

The circuit court denied the

motion to suppress (DA at 170) but granted a change of venue (DA at 140).

Jennings’ trial started on October 28, 1996 in Pinellas County, Florida.

On October 31, 1996, the jury found Jennings guilty of murdering Dorothy

Siddle, Vicki Smith, and Jason Wiggins during the robbery of a Cracker Barrel

restaurant in Naples, Florida.

(Trial Transcript (TT) at 835). The penalty

phase proceeding was held the next day.

The jury, by a vote of 10-2,

recommended the death penalty for each murder count.

Transcript at 163).

(Penalty Phase

The trial court, following the jury’s recommendation,

sentenced Jennings to death (DA at 790).

The Florida Supreme Court

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accurately summarized the underlying facts presented at trial in Jennings’

direct appeal:

Dorothy Siddle, Vicki Smith, and Jason Wiggins, all of whom

worked at the Cracker Barrel Restaurant in Naples, were killed

during an early morning robbery of the restaurant on November

15, 1995. Upon arriving on the scene, police found the bodies of all

three victims lying in pools of blood on the freezer floor with their

throats slashed. Victim Siddle's hands were bound behind her back

with electrical tape; Smith and Wiggins both had electrical tape

around their respective left wrists, but the tape appeared to have

come loose from their right wrists.

Police also found bloody shoe prints leading from the freezer,

through the kitchen, and into the office, blood spots in and around

the kitchen sink, and an opened office safe surrounded by plastic

containers and cash. Outside, leading away from the back of the

restaurant, police found scattered bills and coins, shoe tracks, a

Buck knife, a Buck knife case, a pair of blood-stained gloves, and a

Daisy air pistol.

Jennings (age twenty-six) and Jason Graves (age eighteen), both

of whom had previously worked at the Cracker Barrel and knew

the victims, were apprehended and jailed approximately three

weeks later in Las Vegas, Nevada, where Jennings ultimately

made lengthy statements to Florida law enforcement personnel. In

a taped interview, Jennings blamed the murders on Graves, but

admitted his (Jennings') involvement in planning and, after

several aborted attempts, actually perpetrating the robbery with

Graves. Jennings acknowledged wearing gloves during the robbery

and using his Buck knife in taping the victims' hands, but claimed

that, after doing so, he must have set the Buck knife down

somewhere and did not remember seeing it again. Jennings

further stated that he saw the dead bodies in the freezer and that

his foot slipped in some blood, but that he did not remember

falling, getting blood on his clothes or hands, or washing his hands

in the kitchen sink. Jennings also stated that the Daisy air pistol

belonged to Graves, and directed police to a canal where he and

Graves had thrown other evidence of the crime.

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In an untaped interview the next day, during which he was

confronted with inconsistencies in his story and the evidence

against him, Jennings stated, "I think I could have been the killer.

In my mind I think I could have killed them, but in my heart I

don't think I could have."

At trial, the taped interview was played for the jury, and one of the

officers testified regarding Jennings' untaped statements made

the next day. The items ultimately recovered from the canal were

also entered into evidence.

The medical examiner, who performed autopsies on the victims,

testified that they died from "sharp force injuries" to the neck

caused by "a sharp-bladed instrument with a very strong blade,"

like the Buck knife found at the crime scene. A forensic serologist

testified that traces of blood were found on the Buck knife, the

Buck knife case, the area around the sink, and one of the gloves

recovered from the crime scene, but in an amount insufficient for

further analysis. An impressions expert testified that Jennings'

tennis shoes recovered from the canal matched the bloody shoe

prints inside the restaurant as well as some of the shoe prints from

the outside tracks leading away from the restaurant.

The State also presented testimony concerning previous

statements made by Jennings regarding robbery and witness

elimination in general. Specifically, Angela [Cheney], who had

been a friend of Jennings', testified that about two years before the

crimes Jennings said that if he ever needed any money he could

always rob someplace or somebody. [Cheney] further testified that

when she responded, "That's stupid. You could get caught,"

Jennings replied, while making a motion across his throat, "Not if

you don't leave any witnesses." On cross-examination, [Cheney]

further testified that Jennings had "made statements similar to

that several times."

The State also presented testimony concerning previous

statements made by Jennings regarding his dislike of victim

Siddle. Specifically, Bob Evans, one of the managers at Cracker

Barrel, testified that Jennings perceived Siddle to be holding him

back at work and that, just after Jennings quit, he said about

Siddle, "I hate her. I even hate the sound of her voice." Donna

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Howell, who also worked at Cracker Barrel, similarly testified that

she was aware of Jennings' animosity and dislike of Siddle, and

that Jennings had once said about Siddle, "I can't stand the bitch.

I can't stand the sound of her voice."

The jury found Jennings guilty as charged. In the penalty phase,

the defense presented mitigation evidence, including general

character testimony from witness Mary Hamler, who testified on

direct examination that she had lived with Jennings for two and

one-half years. She also testified that Jennings had gotten along

well with her children during that time, and that he cried when

they (Jennings and Hamler) broke up.

On cross-examination, the State elicited testimony from Hamler

that there was another side to Jennings' character and that

Jennings once said that if he ever committed a robbery, he would

not be stupid enough to stick around, but would go north. Hamler

further testified on cross-examination that Jennings was angry at

Cracker Barrel in general, and Siddle in particular, for "jerking

him around" and holding him back at work, and that in this regard

Jennings once said of Siddle that "one day she would get hers."

The defense presented further character evidence from several of

Jennings' friends that he was good with children, got along with

everybody, and was basically a nonviolent, big-brother type who

was happy-go-lucky, fun-loving, playful, laid back, and likeable.

Jennings' mother testified that her son never met his father and

that she raised Jennings herself. She claimed that Jennings had

been a straight-A student, but quit school to take care of her when

she became sick.

The jury recommended death by a vote of ten to two as to each of

the murders. In its sentencing order, the trial court found three

aggravators: (1) that the murders were committed during a

robbery; (2) that they were committed to avoid arrest; and (3) that

they were cold, calculated, and premeditated (CCP).

The trial court found only one statutory mitigator: that Jennings

had no significant history of prior criminal activity (some weight).

The trial court explicitly found that two urged statutory mitigators

did not exist: that Jennings was an accomplice in a capital felony

Case 2:13-cv-00751-SPC-MRM Document 69 Filed 12/01/20 Page 8 of 52 PageID 1098

committed by another and that his participation was relatively

minor; and that Jennings acted under extreme duress or under the

substantial domination of another person. The trial court also

found eight nonstatutory mitigators: (1) that Jennings had a

deprived childhood (some weight); (2) that accomplice Graves was

not sentenced to death (some weight); (3) that Jennings cooperated

with police (substantial weight); (4) that he had a good

employment history (little weight); (5) that he had a loving

relationship with his mother (little weight); (6) that he had positive

personality traits enabling the formation of strong, caring

relationships (some weight); (7) that he had the capacity to care for

and be mutually loved by children (some weight); and (8) that he

exhibited exemplary courtroom behavior (little weight).

After evaluating the aggravators and mitigators, the trial court

sentenced Jennings to death for each murder. The trial court also

sentenced Jennings to fifteen years' imprisonment for the robbery.

Jennings v. State, 718 So.2d 144, 145-47 (Fla. 1998) (footnotes omitted). The

Florida Supreme Court affirmed the conviction and sentence on direct appeal.

Jennings v. State, 718 So. 2d 144 (Fla. 1998).

Jennings unsuccessfully

petitioned the United States Supreme Court for a writ of certiorari. Jennings

v. Florida, 527 U.S. 1042 (1999).

State Post-Conviction Proceedings

Jennings raised twenty-five postconviction claims in state court. (PostConviction Appeal Record (PCA) at 2289-2400).

The postconviction court

granted an evidentiary hearing on five ineffective-assistance claims and

summarily dismissed the rest.

(PCA 2549-2570).

Over several days, the

postconviction court heard testimony from eleven witnesses: trial attorney

Thomas Osteen, mental health experts Dr. Thomas Hyde, Dr. Hyman

Case 2:13-cv-00751-SPC-MRM Document 69 Filed 12/01/20 Page 9 of 52 PageID 1099

Eisenstein, and Dr. Faye Sultan, and friends and family members, including

Angela Cheney, Patricia Scubbard, Lloyd Scubbard, Heather Johnson, Kevin

McBride, Bruce Martin, and co-defendant Graves. (PCA at 2645-3154).

Osteen, who had represented about 30 capital defendants at the time of

Jennings’ trial, was assisted by co-counsel Sapenoff and investigator Ed Neary.

At the postconviction hearing, Osteen testified mainly about his investigative

and strategic decisions.

When Osteen began representing Jennings, he

enlisted the help of two mental health experts: psychiatrist Robert Wald and

psychologist Russell Masterson. Osteen asked Dr. Wald to evaluate Jennings’

competency and delve into his personality and background for anything that

could be a mitigating factor during sentencing. Dr. Masterson supplemented

Dr. Wald’s work with psychological testing.

Osteen chose Drs. Wald and

Masterson because he had a good relationship with them, and they understood

the type of evaluation he wanted. It was Osteen’s practice to speak with the

doctors after receiving their reports to get more detail. Osteen ultimately

determined that Jennings did not have a strong mental-health defense and

chose not to present testimony from Dr. Wald or Dr. Masterson because it

would open the door to harmful evidence mentioned in their report, like

Jennings’ criminal history.

Osteen said he probably did not consult the ABA guidelines when

representing Jennings, and he did not hire a mitigation specialist. He instead

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relied on Neary to investigate Jennings’ background. Osteen did not know if

Neary traveled outside Florida for this case.

Osteen himself talked to

Jennings, his mother, and several of his friends. Osteen recalled that Jennings

came from a lower socioeconomic background, but that he had a close, loving

relationship with his mother, Tawny Jennings. At the penalty phase of the

trial, Osteen had Jennings’ mother and friends testify about his positive

character traits and hopefully elicit sympathy from the jury.

All three post-conviction medical experts testified about Jennings’

history of head injuries, febrile seizures, and drug and alcohol abuse. The

results of behavioral neurologist Thomas Hyde’s examination of Jennings were

mostly normal. But because of some subtle neurological findings and Jennings’

history, Hyde recommended neuropsychological testing.

Jennings’ counsel

thus hired neuropsychologist Hyman Eisenstein, who tested Jennings first in

2000 and again in 2010. In 2000, Dr. Eisenstein found that Jennings had

above-average intelligence, but discrepancies between certain scores, like

Jennings’ verbal IQ and performance IQ, suggested brain dysregulation. Dr.

Eisenstein described the results as “sort of a red flag saying there is something

going on here that is not typical.” (PCA at 2999). But he reached no clinical

diagnosis in 2000.

The results of Dr. Eisenstein’s 2010 testing fit with the 2000 results, but

this time he diagnosed Jennings with a reading disorder and intermittent

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explosive disorder. Dr. Eisenstein testified that Dr. Masterson’s conclusions

were consistent with his, but he criticized the sufficiency of Dr. Masterson’s

testing and reporting. Applying his findings to the facts of this case, Dr.

Eisenstein opined that Jennings’ untreated reading disorder “led to

tremendous amounts of aggression and hostility disproportionate to any

precipitating event or factor.” (PCA at 2718). He then concluded that the

murders were not premeditated because some unknown provocation during the

robbery triggered Jennings’ intermittent explosive disorder, creating in

Jennings an irresistible impulse to kill the victims.

Psychologist Ellen Sultan investigated Jennings’ background and

testified about factors that could have been considered mitigating. Dr. Sultan

found that sexual abuse was pervasive in Jennings’ extended family. She

described Tawny Jennings as mentally ill and inadequate as a parent. Tawny

introduced Jennings to marijuana, fed him beer as a baby, and told him about

her history of sexual abuse at an inappropriate age. Dr. Sultan, like Dr.

Eisenstein, diagnosed Jennings with intermittent explosive disorder, but she

did not tie the murder to the diagnosis. While she found none of Florida’s

statutory mitigators applicable, Dr. Sultan considered Jennings a “quite

damaged person” who operates “in the world in a highly dysfunctional way.”

(PCA at 3096). And she opined that Jennings’ background—particularly the

excessive and prolonged substance abuse beginning in pre-adolescence and a

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sexually exploitative, neglectful, and impoverished childhood environment—

are predictive of impulse control, attention, and concentration problems,

occupational and social difficulties, propensity towards criminal behavior, and

the inability to regulate emotions.

Jennings’ cousin, Patricia Scudder, and her husband, Lloyd Scudder,

testified about Jennings’ life before he moved to Florida. Patricia described

Jennings’ childhood homes as very messy, with dirty dishes, papers, and dog

feces everywhere. Tawny’s bed was so covered in clothes she slept in a hide-abed with Jennings. Patricia described Tawny’s relationship with Jennings as

close and loving, but also overprotective and sometimes inappropriate. For

example, Tawny breastfed Jennings until he was four or five years old. Lloyd

Scudder described Tawny as a bad mother. He understood her only sources of

income to be welfare and “hooking.”

Tawny had a series of boyfriends, including Frank, who seemed jealous

of Jennings and tried to push him away from his mother. Once, Patricia

walked into the apartment and saw Tawny in bed with a man—both naked—

with Jennings lying on the floor watching television. Both Scudders identified

child molesters in Jennings’ extended family, but neither claimed that

Jennings himself was abused.

Angela Cheney appeared and mostly answered questions about her trial

testimony—that Jennings said he could get away with robbery by leaving no

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witnesses, while gesturing across his throat. Cheney’s testimony was largely

unchallenged at trial, but at the hearing she revealed details Osteen could

have used to attack her credibility. Cheney became friends with Jason Graves

in high school, and she met Jennings through Graves. Cheney dated Jennings

for about a month and did not maintain a friendship with him after they broke

up. She later married Graves’ brother, Robert Cheney. Robert was present

when Cheney first met with police to give her statement, but they were

divorced or separated during Jennings’ trial. Cheney acknowledged being

partly motivated by concern for Graves’ well-being. But she also reaffirmed

the truthfulness of her trial testimony.

Jason Graves testified at the postconviction hearing, but he said nothing

notable, and neither party relied on his testimony in their briefs to this Court.

Three of Jennings’ friends from his teenage years—Heather Johnson, Kevin

McBride, and Bruce Martin—testified that he was not an aggressive person

but could get angry when provoked. They also described Jennings’ heavy

drinking and regular drug use.

After hearing and considering this testimony, the postconviction court

denied Jennings’ motion for postconviction relief.

(PCA at 3247-3260).

Jennings appealed to the Florida Supreme Court and simultaneously

petitioned for a writ of habeas corpus. Denying both, the Florida Supreme

Court held: (1) Jennings’ “trial counsel was not ineffective for failing to obtain

Case 2:13-cv-00751-SPC-MRM Document 69 Filed 12/01/20 Page 14 of 52 PageID 1104

or present childhood and background mitigation” because Osteen’s mitigation

strategy could be considered sound; (2) trial counsel was deficient in the crossexamination of Angela Cheney, but the failure did not undermine the court’s

confidence in the outcome because other compelling evidence supported it; (3)

the postconviction court did not err by summarily dismissing three of Jennings’

claims because each was procedurally barred, refuted by the record, or both;

and (4) Jennings’ appellate counsel was not deficient for failing to raise certain

issues on appeal because none of those issues had merit. Jennings v. State,

123 So. 3d 1101 (Fla. 2013).

Jennings now petitions this Court for a writ of habeas corpus.

III. Applicable Habeas Law

A. AEDPA

The Antiterrorism Effective Death Penalty Act (AEDPA) governs a state

prisoner’s petition for habeas corpus relief. 28 U.S.C. § 2254. Relief may only

be granted on a claim adjudicated on the merits in state court if the

adjudication:

(1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

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28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet.

White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s violation of state

law is not enough to show that a petitioner is in custody in violation of the

“Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

“Clearly established federal law” consists of the governing legal

principles set forth in the decisions of the United States Supreme Court when

the state court issued its decision. White, 134 S. Ct. at 1702; Casey v. Musladin,

549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Habeas relief is appropriate only if the state court decision was “contrary to, or

an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A

decision is “contrary to” clearly established federal law if the state court either:

(1) applied a rule that contradicts the governing law set forth by Supreme

Court case law; or (2) reached a different result from the Supreme Court when

faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application” of Supreme

Court precedent it the state court correctly identifies the governing legal

principle, but applies it to the facts of the petitioner’s case in an objectively

unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.

Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either

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unreasonably extends a legal principle from [Supreme Court] precedent to a

new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Bottoson, 234 F.3d at 531

(quoting Williams, 529 U.S. at 406). “A state court’s determination that a claim

lacks merit precludes federal habeas relief so long as fair-minded jurists could

disagree on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011). “[T]his standard is difficult to meet because it was

meant to be.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018).

Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a federal

court must remember that any “determination of a factual issue made by a

State court shall be presumed to be correct[,]” and the petitioner bears “the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]

state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first

instance.”).

B. Retroactivity

Federal courts generally “cannot disturb a state conviction based on a

constitutional rule announced after a conviction became final.” Knight v. Fla.

Dep’t of Corr., 936 F.3d 1322, 1331 (11th Cir. 2019), cert. denied --- U.S. --(2020) (citing Teague v. Lane, 489 U.S. 288 (1989)).

“Only two narrow

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exceptions pierce this general principle of nonretroactivity: new rules that are

‘substantive rather than procedural,’ and ‘watershed rules of criminal

procedure implicating the fundamental fairness and accuracy of the criminal

proceeding.’” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352-53 (2004)).

When a question of retroactivity arises, a federal court must conduct a

threshold Teague analysis. Id. (citing Horn v. Banks (Banks I), 536 U.S. 266

(2002)).

C. Exhaustion and Procedural Default

AEDPA precludes federal courts, absent exceptional circumstances, from

granting habeas relief unless a petitioner has exhausted all means of relief

available under state law. Failure to exhaust occurs “when a petitioner has

not fairly presented every issue raised in his federal petition to the state’s

highest court, either on direct appeal or on collateral review.” Pope v. Sec’y for

Dep’t. of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (cleaned up).

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, 735 (11th Cir. 1998). Respondents concede that

Jennings exhausted all grounds but one, which the Court will address below.

D. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part

test for determining whether a convicted person may have relief for ineffective

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assistance of counsel. 466 U.S. 668, 687-88 (1984). A petitioner must establish:

(1) counsel’s performance was deficient and fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the defense. Id.

This is a “doubly deferential” standard of review that gives both the state court

and the petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13

(citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).

When considering the first prong, “courts must ‘indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Sealey v. Warden, 954 F.3d 1338, 1354 (11th Cir.

2020) (quoting Strickland, 466 U.S. at 689). When considering counsel’s duty

to investigate, “strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable judgments support the

limitations on investigation.” Strickland, 466 U.S. at 690-91. The Eleventh

Circuit has held that while counsel in a capital case must conduct an adequate

background investigation, it need not be exhaustive. Sealey, 954 F.3d at 1355.

The second prong requires the defendant to “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S.

at 694). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “An ineffective-assistance claim can be decided

on either the deficiency or prejudice prong.” Id. And “[w]hile the Strickland

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standard is itself hard to meet, ‘establishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.’” Id.

(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

Analysis

A. Ground One: Jennings was denied effective assistance of

counsel at the penalty phase in violation of the Sixth, Eighth,

and Fourteenth Amendments

Jennings argues that lead trial counsel Thomas Osteen failed to

adequately investigate Jennings’ past for mitigating evidence, and as a result,

Osteen did not provide his mental health experts—Dr. Wald and Dr.

Masterson—with necessary documents (like school and medical records). That

failing, coupled with incomplete testing and reporting by Wald and Masterson,

led to inaccurate and inadequate evaluations and reports. (Doc. 61 at 45-84).

Respondent concedes this claim is exhausted for habeas purposes. (Doc. 66 at

47).

The Florida Supreme Court evaluated Jennings’ argument in two

components: failure to present mental health mitigation and failure to conduct

an adequate background investigation. As to the mental-health component,

the court found that Osteen made a reasonable strategic decision not to present

mental mitigation testimony because he believed (1) this was not a strong

mental-health case and (2) it could have opened the door to other damaging

evidence, like Jennings’ drug use and criminal history. The Florida Supreme

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Court was unmoved by Jennings’ attacks on the work of Dr. Wald and Dr.

Masterson, which was mostly fueled by the testimony of Dr. Eisenstein. It

agreed with the lower court’s characterization of Dr. Eisenstein’s criticism as

“mere semantics.” Jennings, 123 So. 3d at 1115.

The state court also found, despite Jennings’ contentions, that Dr. Wald

and Dr. Masterson “were aware of and considered [Jennings’s] history of head

injuries, drug and alcohol use, and childhood psychiatric treatment for anger

issues.” Id. And the court held that Osteen could not have been deficient for

relying on qualified experts, even if Jennings presented more favorable expert

opinions post-conviction. Finally, the court found that even if Osteen and his

experts should have sought more information, Jennings did not show prejudice

because he identified no particular information that would have made a

difference.

As to the insufficient-investigation component of this claim, the Florida

Supreme Court found no deficiency in trial counsel’s performance. The court

noted that Dr. Masterson’s findings were similar to Dr. Sultan’s, despite Dr.

Sultan’s more thorough background investigation. It found that “this is not a

case where trial counsel failed to investigate, obtain, or provide any

background information to the experts and therefore could not have made a

reasoned strategic decision about its presentation.” Id. The court excused

Osteen’s failure to discover the history of sexual abuse in Jennings’ family

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because his practice was to inquire into sexual abuse and it never came up as

an issue. In fact, Jennings denied any history of sexual abuse. Even if Osteen

should have discovered the abuse in Jennings’ family, the state court found no

prejudice:

While information concerning the sexual abuse of his family

members might have been mitigating in establishing Jennings’

troubled childhood and emotional development, the trial court

found as nonstatutory mitigation that Jennings had a deprived

childhood, and the presentation of this testimony might have run

contrary to counsel’s strategic decision of finding friends who could

speak positively about Jennings.

Id. at 1118.

Jennings objects to several aspects of the state court’s analysis. First,

he bristles at the characterization of Dr. Eisenstein’s criticism of Dr.

Masterson’s report as “mere semantics.” But arguing about what is and is not

“mere semantics” is simply more semantics. What matters is whether Osteen

was constitutionally deficient for relying on Dr. Masterson’s report.

Dr.

Eisenstein found Dr. Masterson’s report “grossly insufficient” from a

“neuropsychiatric aspect” and more of a “neuropsychological screener” than a

full examination report. (PCA at 2751). But he also called the report “a good

starter” for someone “trying to figure out if there is significant mitigation or

not.” (PCA at 2753-54). And despite the differences in their testing and

reporting practices, Dr. Eisenstein testified that Dr. Masterson’s conclusions

were consistent with his.

(PCA at 2698).

After carefully reviewing Dr.

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Masterson’s report, given Dr. Eisenstein’s criticisms, the Court finds Osteen’s

reliance on the report to be within an objective standard of reasonableness.

Dr. Eisenstein did reach several diagnoses that Dr. Masterson did not—

most notably intermittent explosive disorder (IED). The IED diagnosis did not

stem from neuropsychological testing. Rather, in accordance with the DSMIV, Dr. Eisenstein based it on discrete episodes of aggressive impulses grossly

out of proportion to any precipitating psychosocial stressors, as reported by

Jennings and his mother. Dr. Masterson did not fail to uncover Jennings’

history of violent incidents—he mentions several in his report—and he

reported a clinical indication of “difficulty with impulse control.” (PCA at

3767). So, although Osteen did not have formal diagnosis of IED, he did have

the information he needed to make an aggressive-impulse argument at

sentencing. But that might have done more harm than good by opening the

door to Jennings’ prior violent acts. It certainly would have conflicted with

Osteen’s strategy of emphasizing Jennings’ positive character traits.

Next, Jennings argues that Osteen failed to obtain enough school and

medical records, which would have shown a history of febrile seizures and

repeated head injuries. Osteen knew of Jennings’ history of head injuries

because Dr. Masterson mentioned it in his report. Osteen apparently did not

know of the febrile seizures, but Jennings fails to show how that knowledge

might have impacted the trial. According to Dr. Hyde, the importance of the

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febrile seizures and repeated head injuries was that they showed a need for

neuropsychological testing. But since Osteen had Jennings tested, knowledge

of the seizures would not have led to the discovery of any additional mitigating

information.

Jennings’ argument that Osteen failed to adequately investigate his life

before moving to Florida is likewise unavailing. He points to new details

presented at the postconviction hearing of his squalid childhood living

conditions and his troubled relationship with his mother. But Osteen had

ample information on Jennings’ early life from Jennings’ extensive selfreporting, and he used that information successfully at sentencing—the trial

court considered Jennings’ deprived childhood a mitigating factor. Osteen’s

strategy of focusing on the positive aspects of Jennings’ relationship with his

mother also bore fruit, as the trial court considered it another mitigating factor.

Osteen did not learn of the sexual abuse pervasive in Jennings’ family

and Jennings’ exposure to known child molesters. Although Jennings himself

was not a victim of those men, Dr. Sultan explained how learning about sexual

violence at a young age could have been mitigating:

You mentioned that [Tawny Jennings] was a victim of sexual

abuse. To your knowledge, was Mr. Jennings aware that his

mother had been sexually abused?

Yes. It was one of the first things he told me about actually.

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Can you briefly explain what kind of impact that might have

on an individual, the knowledge that his mother had been sexually

abused by family members?

There is a body of literature that has to do with witnessing

sexual violence and being told about sexual violence at an

inappropriate age. I don’t know what an appropriate age would

be—adulthood would be an appropriate age, but he was a preadolescent when he knew about this. What we know is that even

the telling of such stories produce significant emotional distress in

children because they’re simply not prepared—in a brain

development sense, not prepared for the kind of information. So I

don’t know how to separate out the contribution of that damage to

Mr. Jennings’ state, but I know that it certainly contributed.

(PCA at 3099).

That Osteen’s investigation did not uncover this information does not

necessarily show he was ineffective. “The reasonableness of counsel’s actions

may be determined or substantially influenced by the defendant’s own

statements or actions.” Strickland, 466 U.S. at 691. “An attorney does not

render ineffective assistance by failing to discover and develop evidence of

childhood abuse that his client does not mention to him. Williams v. Head, 185

F.3d 1223, 1237 (11th Cir. 1999). Osteen did not learn of the sexual abuse in

Jennings’ family because neither Jennings nor his mother told him about it.

He interviewed both in preparation for sentencing, and it was his practice to

investigate past sexual abuse. Osteen was not deficient for relying on Jennings

to self-report this type of potentially mitigating information.

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Osteen’s investigation of Jennings’ background might not have been

exhaustive, but it was reasonable and adequate.

Osteen’s investigation

decisions were guided largely by the information he received from Jennings.

As the Supreme Court explained, “Counsel’s actions are usually based, quite

properly, on informed strategic choices made by the defendant and on

information supplied by defendant. In particular, what investigation decisions

are reasonable depends critically on such information.” Strickland, 466 U.S.

at 691. Every mental health expert consulted in this case—before and after

trial—agreed that Jennings has an above-average intelligence, and none found

any mental health issues that would make him an unreliable historian. Osteen

properly relied on Jennings to self-report his history.

Based upon a thorough review of the record, the Court finds the state

court’s denial of relief on this ground was not contrary to or an unreasonable

application of Strickland.

B. Ground Two:

Jennings’ convictions and sentences are

materially unreliable because trial counsel was ineffective for

failing to adequately impeach the prejudicial testimony of

Angela Cheney

Jennings claims Osteen was constitutionally ineffective for failing to

adequately cross-examine Angela Cheney.

(Doc. 61 at 84-93).

The state

concedes this ground is exhausted for habeas purposes. (Doc. 66 at 66).

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During the guilt phase of Jennings’ trial, Angela Cheney gave the

following testimony:

Now, let me direct your attention back before the November

15th, 1995 Cracker Barrel murders and robbery. Do you

recall having a discussion with the Defendant, Brandy

Jennings, about a robbery?

Yes, sir.

It where did this discussion occur?

At his apartment.

All right. And would you tell the jury about this discussion.

What did he say and what did you say?

There was a couple people around and we were just talking

about money and stuff like that and he said if he ever needed

any money, he could always rob someplace or somebody.

And we were talking and I said, “Well that’s stupid. You can

get caught.” And he said, “Not if you don’t leave any

witnesses.”

(TT at 699-700). Cheney also testified that Jennings gestured across his throat

as he spoke. Osteen’s cross-examination was minimal. He asked when the

conversation occurred—November 1993—and who else was there—Chris

Graves and someone named Bruce.

The sentencing court cited Cheney’s

testimony to support the avoiding arrest and cold, calculated, and

premeditated (CCP) aggravating factors.

Jennings faults Osteen for not

attacking Cheney’s credibility with (1) her relationships with Jennings and

Graves, (2) her communications with Graves after his arrest, and (3) her

history of drug use.3

3 Jennings also argues that Osteen should have impeached Cheney’s testimony

with evidence that Jennings lived at North Gate Club apartments with Bruce

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Upon review, the Florida Supreme Court found that Osteen “was

deficient with respect to his preparation for and cross-examination of Cheney”

because “by failing to question Cheney about her potential motivations and

biases in this case, regardless of whether any such biases influenced her

testimony, counsel deprived the jury of the ability to make a fully informed

decision about Cheney’s credibility.” Jennings, 123 So. 3d at 1119. Despite the

state’s use of Cheney’s evidence to support a guilty verdict and two aggravating

factors, the Florida Supreme Court determined that Jennings failed to prove

prejudice. The court reasoned Osteen’s deficiency did not undermine the state

court’s confidence in the guilty verdict because “the State presented

considerable other evidence of Jennings’ guilt… Specifically, Jennings made

inculpatory statements to law enforcement, owned the murder weapon, and

left bloody shoe prints leading away from the murder scene.” Id. at 1120.

The court likewise found no prejudice in the sentencing phase because

the aggravators were supported by other evidence. For the CCP aggravator,

that evidence included “Jennings’ established dislike for one of the victims, the

speed with which the robbery and murders were accomplished, and Jennings’

Martin in November 1993. This evidence contradicts Cheney’s testimony at

the 2010 postconviction hearing, when she recalled the conversation occurring

at an apartment they shared—perhaps in a complex called Waverly. But the

evidence would not have impeached her trial testimony, so it is not relevant

here.

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ownership of the murder weapon[,]” as well as the “execution-style nature of

the killings.” Id. And for the avoid arrest aggravator, the court noted that

Jennings wore gloves but no mask, even though the witnesses knew and could

identify him, and that the victims were restrained in the freezer, so Jennings

could have eliminated any immediate threat by securing the freezer door.

Finally, the court found that an adequate cross-examination would not have

entirely destroyed Cheney’s credibility. Id. at 1121.

Jennings argues the state court unreasonably applied Strickland by (1)

glossing over the significance of Cheney’s testimony and (2) applying the wrong

standard—that an adequate cross-examination must have entirely destroyed

Cheney’s credibility. Both of Jennings’ arguments mischaracterize the state

court’s reasoning. It did not downplay the significance of Cheney’s testimony

or apply an overly rigorous standard. Rather, the court considered the other

evidence to determine the likelihood of a different outcome had Cheney not

testified at all.

The Strickland Court explained the legal standard courts should use

when assessing prejudice from counsel’s errors:

When a defendant challenges a conviction, the question is whether

there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.

When a defendant challenges a death sentence…, the question is

whether there is a reasonable probability that, absent the errors,

the sentencer…would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.

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Strickland, 466 U.S. at 696. The state court’s application of Strickland was

proper. In fact, by evaluating the evidence as if Cheney had not testified, it

applied a standard more favorable to Jennings than required, because

adequate cross-examination would have impeached—not excluded—Cheney’s

testimony. Jennings has no right to relief on this ground.

C. Ground Three: The state court erred in summarily denying

three meritorious claims in violation of the Fifth, Sixth,

Eighth, and Fourteenth Amendments

This ground has multiple parts. First, Jennings argues the state court

erred by denying an evidentiary hearing on three postconviction claims: (1)

the prosecutor made improper statements and arguments at trial, (2) Osteen

was ineffective for failing to challenge forensic evidence, and (3) Osteen was

ineffective for failing to challenge the admissibility and reliability of Jennings’

statements to the police. Because the postconviction court denied two of these

claims before the postconviction evidentiary hearing, Jennings complains it

violated Florida Rule of Criminal Procedure 3.851. (Doc. 61 at 94-99). The

state concedes this ground is substantially exhausted. (Doc. 66 at 75).

No habeas relief lies for the post-conviction court’s refusal to grant an

evidentiary hearing on three of the claims. It is “beyond debate” that Jennings

is not entitled relief on this ground. Anderson v. Sec’y, Dep’t. of Corr., 462 F.3d

1319, 1330 (11th Cir. 2006). The Eleventh Circuit has “held the state court’s

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failure to hold an evidentiary hearing on a petitioner’s 3.850 motion is not a

basis for federal habeas relief.” Id.

The Court now turns to each of the substantive merits of the three claims

the Florida Supreme Court determined were properly summarily denied:

1. Prosecutorial misconduct

This sub-claim has two parts: prosecutorial misconduct and ineffective

assistance of counsel. Jennings identifies three allegedly improper statements

made by the prosecutor in the sentencing phase:

The prosecutor mischaracterized the nature of mitigation, as an

“attempt to escape accountability,” argued impermissible

aggravating circumstances including that Jennings had “spent his

ill gotten gains at Flints, a topless dance club,” and stated that the

co-defendant Graves had already received a life sentence.

(Doc. 61 at 96-97). And he claims the prosecutor violated his rights to due

process and a fair trial by arguing inconsistent theories in Jennings’ and

Graves’ trials. The Florida Supreme Court held these claims were procedurally

barred because Jennings could and should have raised them on direct appeal.4

Jennings 123 So. 3d at 1122.

Federal courts “cannot consider a claim where ‘the last state court

rendering a judgment in the case clearly and expressly stated that its judgment

The Florida Supreme Court did address, and reject, Jennings’ claim of

inconsistent theories on direct appeal when deciding a related issue—whether

Jennings’ and Graves’ sentences were impermissibly disparate.

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rests on a state procedural bar.’” Spencer v. Sec’y, Dep’t. of Corr., 609 F.3d

1170, 1178 (11th Cir. 2010) (quoting Parker v. Sec’y, Dep’t. of Corr., 331 F.3d

764, 771 (11th Cir. 2003)). “Accordingly, ‘a federal habeas claim may not be

reviewed on the merits where a state court determined that the petitioner

failed to comply with an independent and adequate state procedural rule that

is regularly followed.’” Id. (quoting Philmore v. McNeil, 575 F.3d 1251, 1260

(11th Cir. 2009)). The Supreme Court affirmed these principles in Johnson v.

Lee, 136 S. Ct. 1802 (2016).

Jennings does not attack the adequacy of the procedural rule that barred

his postconviction claims. It would have been fruitless. See Spencer, 609 F.3d

at 1179. (“There is no doubt that, under Florida law, a claim is procedurally

barred from being raised on collateral review if it could have been but was not

raised on direct appeal.”). Two exceptions would allow this Court to consider

Jennings’ claims of prosecutorial misconduct:

This procedural bar may be overcome—and we may consider the

merits of these claims—only if [the petitioner] demonstrates both

cause for the failure to raise the claims on direct appeal and actual

prejudice, or demonstrates that a failure to consider the claims will

result in a fundamental miscarriage of justice. 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 state court. 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.

Finally, a “fundamental miscarriage of justice” occurs in an

extraordinary case, where a constitutional violation has resulted

in the conviction of someone who is actually innocent.

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Spencer, 609 F.3d at 1179-80 (cleaned up). Jennings does not identify cause or

prejudice to excuse his failure to raise prosecutorial misconduct on direct

appeal. Indeed, the prosecutor’s statements at both his and Graves’ trial were

known when he filed his direct appeal. Nor does Jennings claim he is innocent.

Thus, this Court may not consider his claims of prosecutorial misconduct.

Jennings also claims that Osteen was ineffective for failing to object to

the prosecutor’s three allegedly improper statements during sentencing: that

mitigation was “an attempt to escape accountability,” that Jennings “spent his

ill gotten gains at Flints, a topless dance club,” and that Graves had received

a life sentence. (Doc. 61 at 96-97). The state court properly rejected this

ineffective-assistance claim because Jennings failed to show prejudice. In fact,

the trial court considered Graves’ life sentence as a mitigating factor.

This claim is insufficient.

Jennings does not identify any clearly

established federal law contrary to the Florida Supreme Court’s reasoning or

any unreasonable factual finding. And—like in state court—he does not show

any prejudice stemming from Osteen’s failure to object to the prosecutor’s

statements.

2. Failure to challenge forensic evidence

Jennings next contends counsel was ineffective because he failed to

challenge the reliability of the forensic evidence. (Doc. 61 at 102-104). At issue

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is the state’s expert witness testimony of cause and manner of death and

shoeprint examination, and crime-scene testimony from two police officers. Dr.

Manfred Borges opined that the victims’ wounds matched Jennings’ Buck

knife, which he saw at the scene. Borges came to his opinion by comparing the

wounds to “a dental knife with almost all the same characteristics.” (TT at

393). David Grimes testified that Jennings’ Reebok shoes matched various

shoeprints at the crime scene. And Officers Robert Browning and John Horth

testified about their observations of the crime scene. Jennings claims Osteen

was ineffective because he did not call his own forensic experts to rebut the

state’s evidence.

The Florida Supreme Court rejected this claim as legally insufficient

because Jennings did “not allege what specific information other experts would

have been able to offer or how this presentation would have impacted the case.”

Jennings, 123 So.3d at 1123. Jennings identifies no federal law contrary to the

state court’s adjudication. When “a petitioner raises an ineffective assistance

claim based on counsel’s failure to call a witness, the petitioner carries a heavy

burden ‘because often allegations of what a witness would have testified to are

largely speculative.’” Finch v. Sec’y, Dep’t. of Corr., 643 F. App’x 848, 852 (11th

Cir. 2016) (quoting Sullivan v. DeLoach, 459 F.3d 1097, 1108-09 (11th Cir.

2006)).

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In Finch, the petitioner asserted that a particular expert would have

testified that the state’s DNA evidence was unreliable because of flawed

methodology, but he did not support the assertion with any evidence. Id. The

Eleventh Circuit found that the Florida Supreme Court’s denial of the claim

“was not contrary to, or an unreasonable application of, clearly established

federal law.” Id. Similarly, the petitioner in Wilson v. Sec’y, Dep’t. of Corr.

argued that trial counsel should have called an expert to rebut the state’s

medical examiner but did not establish what conclusion his expert would have

reached. 769 F. App’x 825, 827 (11th Cir. 2019). The Eleventh Circuit denied

the claim because “ineffective assistance of counsel cannot be proven via

conclusory assertion.” Id. Jennings has done even less than Finch. He does

not state, even hypothetically, what forensic evidence Osteen could have

presented. Jennings has not carried his burden on this point.

3. Failure to challenge admissibility and reliability of Jennings’

confession

Jennings next faults Osteen for not investigating the circumstances

surrounding Jennings’ confession, which led to Osteen’s alleged ineffectiveness

in his motion to suppress the confession and his subsequent cross-examination

of the State’s key witnesses. (Doc. 61 at 104-107). Ralph Cunningham, chief

investigator for the Twentieth Judicial Circuit of Florida State Attorney’s

Office, interviewed Jennings twice. Jennings expressly waived his Miranda

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rights both times. The first interview was taped, and the jury listened to the

tape at trial. Cunningham conducted a second, untaped interview the next day

to “clear up some inconsistencies” and “go over some other facts.” (TT at 704).

Cunningham testified that during the second interview, Jennings said, “I think

I could have been the killer. In my mind I think I could have killed them, but

in my heart I don’t think I could have.” (TT at 738).

Jennings argues that Osteen failed to adequately investigate two aspects

of the statement: (1) Jennings’ mental health and how it affected his ability to

knowingly, intelligently, and voluntarily waive his Miranda rights; and (2)

discrepancies within and between “Cunningham’s report and testimony [and]

the reports of Officers Crenshaw and Rose.” (Doc. 61 at 107).

As pointed out by the Florida Supreme Court, contrary to Jennings’

assertions, the state court did not summarily deny the mental-health aspect of

this claim. Jennings, 123 So. 3d at 1123. Rather, the postconviction court

afforded Jennings an evidentiary hearing on this claim, but the only evidence

Jennings elicited was that “Osteen did not recall if defendant used drugs at the

time he gave his confessions and he was sure he investigated that issue.” (PCA

at 3259). The Florida Supreme Court also denied Jennings relief on the second

part of this claim—the alleged discrepancies—because Jennings did “not allege

what these inconsistencies are or what information trial counsel should have

been aware of or used as impeachment evidence.” Jennings, 123 So. 3d at 1123.

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Jennings challenges no aspect of the Florida Supreme Court’s

adjudication of this claim, and the Court finds no fault in it.

Jennings’

conclusory assertion that he was unable to knowingly and voluntarily waive

his Miranda rights is not enough. He presented no evidence to support it,

despite ample opportunity—he had three mental health experts testify at the

postconviction hearing, and the postconviction court gave the green light for

evidence on the issue. Jennings’ failure to identify the discrepancies Osteen

could have used to challenge Cunningham’s testimony is likewise fatal to this

claim. See Boyd v. Comm’r, Ala. Dep’t. of Corr., 697 F.3d 1320, (11th Cir. 2012)

(denying an ineffective-assistance claim because the petitioner disclosed no

specific piece of evidence trial counsel should have uncovered).

Having reviewed each of the subparts of Ground Three, the Court finds

Jennings has not demonstrated that the state court’s rejection was contrary to

clearly established federal law or based on an unreasonable determination of

the facts. Ground Three is denied in its entirety. 28 U.S.C. § 2254(d).

D. Ground 4: Jennings’ statements to police, and all evidence

derived from them, should have been suppressed because

they were obtained in violation of his right to counsel

Jennings argues the trial court erred by refusing to suppress his

statements to detectives. (Doc. 61 at 107-111). Respondents acknowledge this

ground is exhausted for federal habeas purposes. (Doc. 66 at 87).

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Jennings and Graves were arrested in Las Vegas on December 8, 1995.

Collier County Sheriff’s Office detectives Rose and Crenshaw traveled to Las

Vegas later that day and met with Jennings at the Clark County Jail on

December 9, just after midnight.

Detective Crenshaw read Jennings his

Miranda warning, including his right to an attorney, whether or not he could

afford one. During the interview, Jennings said he wanted a lawyer. The

officers stopped the interview, and Detective Rose offered to get Jennings a

phone book.

Investigator Cunningham went to the Clark County Jail on December

10, 1995, to talk to Graves. As Cunningham was leaving the interview room,

he saw Jennings near the booking desk. Jennings asked Cunningham if he

had heard from Tawny Jennings. Cunningham said he had not, but that

Detective Crenshaw was trying to reach her. Jennings then said that after

talking to his mother, he decided he wanted to talk about the robbery. “He

said that he did not want to take the blame for the killings of three people that

his partner had done, that he wanted to tell his side of the story.” (DA at 976).

Cunningham, Rose, and Jennings went into the interview room, and

Cunningham read Jennings his Miranda rights. Jennings said he understood

his rights and wished to speak. He then went through the facts of the crime

with Cunningham and Rose. Cunningham asked if they could take a recorded

statement, Jennings consented, and Cunningham advised Jennings of his

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Miranda rights again. In the two-and-a-half hour taped interview, Jennings

described his history, the events leading up to the crime, and the crime itself.

During the interview, Jennings told the officers where they could find some

physical evidence he and Graves hid after fleeing the Cracker Barrel. Police

later recovered that evidence. Cunningham returned to the jail on December

11 to go over some inconsistencies and other facts with Jennings. During this

conversation, Jennings said, “I think I could have been the killer. In my mind

I think I could have killed them, but in my heart I don’t think I could have.”

(TT at 738).

Osteen moved to suppress Jennings’ statements, and the trial court held

a suppression hearing. (DA at 154). The trial court denied the motion, finding

that Jennings voluntarily initiated his contact with Cunningham and Rose and

knowingly, intelligently, and voluntarily waived his right to counsel and his

right to remain silent. At trial, the state played the recorded interview, and

Cunningham testified about Jennings’ confession over Osteen’s objections.

The state also introduced the physical evidence Jennings helped police recover.

On direct appeal, Jennings argued that Detective Rose’s offer to get him

a phone book was an inadequate response to Jennings’ invocation of his right

to counsel, and any subsequent waiver of his Miranda rights was tainted. The

Florida Supreme Court found that “even if Jennings invoked his right to

counsel, he voluntarily initiated further contact with the police” and that he

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gave the statements “after voluntarily, knowingly, and intelligently waiving

his Miranda rights.” Jennings v. State, 718 So. 2d 144, 150 (Fla. 1998). Thus,

the statements were admissible under Edwards v. Arizona, 451 U.S. 477

(1981).

The state court also found that Jennings’ decision to reinitiate a

conversation with Cunningham and Rose “was motivated not by any

misapprehension of this right or ‘taint’ of the telephone book scenario, but by

an interceding conversation between Jennings and his mother, wherein she

advised Jennings to talk to the police.” Jennings, 718 So. 2d at 149.

In his petition to this Court, Jennings’ reasserts his contention that any

waiver of his Miranda rights was not knowing, intelligent, and voluntary

because of Detective Rose’s allegedly inadequate response when Jennings

invoked his right to counsel. Jennings’ argument is based mainly on state

law—the Florida Constitution provides greater protections than the federal

Constitution. But Florida state law cannot be the basis of federal habeas relief.

28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010). And the federal

cases cited by Jennings’ strongly support the state court’s adjudication.

In Edwards, the Supreme Court held that an accused, “having expressed

his desire to deal with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Edwards, 451 U.S. at 485 (emphasis added).

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Jennings does not challenge the state court’s factual finding that he voluntarily

initiated contact with Cunningham and Rose after invoking his right to

counsel.

In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Supreme Court

reaffirmed the Edwards rule and clarified that even when an accused

reinitiates dialogue with police, the prosecution still must prove the accused

knowingly and voluntarily waived the right to counsel and the right to remain

silent. The Florida Supreme Court found that the prosecution met its burden,

based on these facts:

Upon Jennings’ reinitiation of conversation with police, he was

again advised of his Miranda rights, including his right to have a

lawyer appointed to represent him before questioning if he could

not afford one. Thereafter, at the beginning of the taped interview

when Detective Rose and Investigator Cunningham prepared to

again advise Jennings of his Miranda rights, Jennings stated that

he could save them the trouble because he understood his rights

fully. Despite this, Detective Rose again advised Jennings of his

Miranda rights, once again including his right to have a lawyer

appointed to represent him before questioning if he could not

afford one. The record also indicates that, before making his

subsequent untaped statement the next day, Jennings was again

advised of his Miranda rights and executed a written waiver.

Jennings, 718 So. 2d at 150.

Jennings challenges none of these factual

findings, and they are supported by the record. The state court correctly

applied Edwards.

Jennings fails to meet his burden for habeas relief on

Ground Four, and the Court denies it. 28 U.S.C. § 2254(d).

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E. Ground 5: Jennings’ death sentence violates the Sixth and

Eighth Amendments and his right to due process because a

jury did not make all necessary findings of fact

Jennings attacks the constitutionality of his sentence and the procedure

used to deny his successive Rule 3.851 motion in light of the Supreme Court’s

decision in Hurst v. Florida, 136 S. Ct. 616 (2016) and its progeny. (Doc. 61 at

112-139). Before addressing the claims, the Court provides some background.

After the jury found Jennings guilty on all counts, the trial court

conducted the sentencing phase of trial.

Upon conclusion, the jury

recommended a death sentence by a vote of 10 to 2. The trial court found three

statutory aggravating factors—commission during a robbery, avoiding arrest,

and CCP—outweighed the mitigating circumstances and, following the jury’s

recommendation, sentenced Jennings to death.

Jennings’ convictions and

sentence became final in 1999, when the Supreme Court denied Jennings’

petition for a writ of certiorari.

In 2002, the Supreme Court cast doubt on the constitutionality of

Florida’s capital sentencing scheme when it held Arizona’s procedure, which

was similar in some respects to Florida’s, violated the Sixth Amendment. Ring

v. Arizona, 536 U.S. 584 (2002). The Arizona scheme required the trial judge,

following a jury adjudication of a defendant’s guilt for first-degree murder, to

determine the presence or absence of aggravating and mitigating factors. The

Arizona judge could sentence the defendant to death only if there was at least

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one aggravating factor and “no mitigating circumstances sufficiently

substantial to call for leniency.” Id. at 593. The Court reasoned that “Arizona’s

enumerated aggravating factors operate as ‘the functional equivalent of an

element of a greater offense,’” so “the Sixth Amendment requires that they be

found by a jury.” Id. at 609 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494

n.19 (2000)).

In 2016, the Supreme Court held Florida’s capital sentencing scheme

also violated the Sixth Amendment.

Hurst, 136 S. Ct. 616.

Despite the

differences in Florida’s and Arizona’s schemes—namely, Florida’s requirement

for a jury recommendation—the Court found Ring applicable. Since Florida’s

death-penalty statute required the judge—not the jury—to decide whether any

aggravating factors existed, it violated the Sixth Amendment. Hurst, 136 S.

Ct. at 624. The Court overruled previous decisions Spaziano v. Florida, 468

U.S. 447 (1984) and Hildwin v. Florida, 490 U.S. 638 (1989) “to the extent they

allow a sentencing judge to find an aggravating circumstance, independent of

a jury’s factfinding, that is necessary for imposition of the death penalty.” Id.

at 624.

On remand of Hurst v. Florida, the Florida Supreme Court went a step

further. Along with the existence of aggravating circumstances, it held that a

“jury must also unanimously find that the aggravating factors are sufficient for

the imposition of death and unanimously find that the aggravating factors

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outweigh the mitigation before a sentence of death may be considered by the

judge.” Hurst v. State, 202 So. 3d 40, 54 (Fla. 2016). The court based its

heightened protection in part on Florida law and in part on its understanding

that “Hurst v. Florida mandates that all the findings necessary for imposition

of a death sentence are ‘elements’ that must be found by a jury[.]” Id. at 57.

In 2016, the Florida Supreme Court addressed the retroactivity of Hurst

in two separate cases: Asay v. State, 210 So. 3d 1 and Mosley v. State, 209 So.

3d 1248. Applying Witt v. State, 387 So. 2d 922 (Fla. 1980), which provides

more expansive retroactivity standards than the federal Teague test, the court

decided to make the Supreme Court’s issuance of Ring the cutoff date. Thus,

Florida courts retroactively apply Hurst only to cases in which a death sentence

became final after June 24, 2002. Asay, 210 So. 3d at 22; Mosley, 209 So. 3d

at 1283.

Despite Jennings’ 1999 finality of sentence and conviction, he filed a

successive Rule 3.851 motion, seeking relief under Hurst. After the postconviction court denied Jennings’ motion, he appealed to the Florida Supreme

Court.

The Florida Supreme Court

stayed Jennings’ appeal pending its

decision in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017). In Hitchcock, the

Florida Supreme Court rejected constitutional arguments that Hurst should

be applied to sentences that became final before Ring. The court then ordered

Jennings to show cause why its reasoning in Hitchcock should not be

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dispositive in his case. Jennings’ response failed to sway the court, and it

affirmed denial of his motion. Jennings v. State, 237 So. 3d 909 (Fla. 2018).

The Court turns to the claims raised in in Ground Five.

1. Jennings’ right to retroactive application of Hurst v. Florida

Jennings argues the Florida Supreme Court’s decision to deny him relief

under Hurst is contrary to federal law for three reasons: (1) Hurst announced

substantive constitutional rules that must be given retroactive effect; (2)

Florida’s limited retroactivity rule violates the Eighth Amendment because it

ensures arbitrary and unreliable infliction of the death penalty; and (3)

Florida’s limited retroactivity rule violates the Equal Protection Clause of the

Fourteenth Amendment.

Retroactive effect of Hurst

When facing questions of retroactivity in habeas cases, federal courts

must apply the standards articulated in Teague. The first step is to determine

when the petitioner’s conviction became final.

Knight, 936 F.3d at 1334.

Jennings’ conviction became final when the Supreme Court denied his motion

for a writ of certiorari on June 24, 1999. Next, if the rule at issue had not been

announced by the final-conviction date, the Court must “’assay the legal

landscape’ as it existed at the time and determine whether existing precedent

compelled the rule—that is, whether the case announced a new rule or applied

an old one.” Id. Jennings does not argue that Hurst v. Florida applied an

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existing rule. Even if he did, the Eleventh Circuit has rejected that argument

because “Hurst was not dictated by prior precedent—and in fact explicitly

overruled existing precedent upholding Florida’s death penalty sentencing

scheme[.]” Id. at 1336.

Jennings focuses on the final step of the Teague analysis—whether Hurst

falls within one of the two exceptions to nonretroactivity. Those exceptions are

“(1) holdings that create substantive (not procedural) rules that place ‘certain

kinds of primary, private individual conduct beyond the power of the criminal

law-making authority to proscribe,’ and (2) holdings that constitute ‘watershed

rules of criminal procedure.’” Id.

Jennings hangs his hat on the first exception, arguing that Hurst

announced two substantive rules:

First, the court held that the Sixth Amendment requires that a

jury decide whether the aggravating factors have been proven

beyond a reasonable doubt, whether they are sufficient to impose

the death penalty, and whether they are outweighed by the

mitigating factors…Second, the court held that the Eighth

Amendment requires the jury’s fact-finding during the penalty

phase to be unanimous.

(Doc. 61 at 126-27). Jennings’ argument fails. First, he relies on Florida

Supreme Court’s Hurst v. State decision, not the United States Supreme

Court’s Hurst v. Florida decision. Federal habeas relief must be based on

federal law, as established by the United States Supreme Court. Hurst v.

Florida announced a narrower rule than Hurst v. State—the Sixth Amendment

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requires a jury, not a judge, to determine the existence of any aggravating

factors.

The Florida Supreme Court’s broader interpretation of Hurst v.

Florida was wrong, a mistake it recently recognized in State v. Poole, 297 So.

3d 487 (Fla. 2020): “This Court clearly erred in Hurst v. State by requiring

that the jury make any finding beyond the section 921.141(3)(a) eligibility

finding of one or more statutory aggravating circumstances.” Poole, 297 So. 3d

at 503.

The issue for this Court is whether either of the Teague exceptions

applies to the narrower rule announced in Hurst v. Florida. The Eleventh

Circuit decided they do not in Knight:

The Hurst rule does not fit within either exception. To begin,

substantive rules include decisions that change the range of

conduct or the class of person that the law punishes. Procedural

rules, on the other hand, regulate only the manner of determining

the defendant’s culpability. In considering which category the

Hurst rule falls into, we have a head start because the Supreme

Court has already held that Ring represented a prototypical

procedural rule. And that makes sense: Ring changed the

permissible procedure for sentencing in a capital case when it

required that a jury rather than a judge find the essential facts

necessary to impose the death penalty. Because Hurst’s holding—

that an advisory jury’s mere recommendation is not enough to

satisfy this procedural requirement—is an extension of the rule

from Ring, we have no trouble concluding that Hurst also

announced a procedural rule, and not a substantive rule.

Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1336-37 (11th Cir. 2019).

Jennings, like Knight, does not contend that Hurst v. Florida fits within the

second exception.

“Indeed, the watershed exception remains somewhat

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theoretical at this point; in the years following Teague, the Supreme Court has

never found a rule that fits.” Id. at 1337. “In short, Hurst [v. Florida] meets

neither exception, and therefore is not retroactive.” Id.

ii.

Retroactivity and the Eighth Amendment

Before addressing Jennings’ two constitutional objections to Florida’s

retroactivity decision vis-à-vis Hurst v. Florida, the Court notes that they are

probably not cognizable here.

States may fashion and apply their own

retroactivity standards in state postconviction proceedings, and state

retroactivity decisions have no significance in federal habeas cases. Id. Before

applying any rule retroactively, this Court must perform a threshold Teague

analysis. Id. Thus, this Court cannot grant Jennings any relief under Hurst

v. Florida without ignoring the binding precedent set out in Knight.

Jennings raises three Eighth Amendment arguments. His first is an

attack on a fundamental aspect of retroactivity. Jennings contends that by

setting a cutoff date for the retroactivity of Hurst v. Florida and Hurst v.

State—permitting Hurst relief only to inmates whose death sentences were

final before June 24, 2002—the Florida Supreme Court ensured arbitrary

infliction of the death penalty. Jennings provides no Supreme Court precedent

suggesting that state retroactivity decisions cannot hinge on the date a

conviction becomes final. Indeed, the Teague test does just that: “Unless they

fall within an exception to the general rule, new constitutional rules of criminal

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procedure will not be applicable to those cases which have become final before

the new rules are announced.” Teague, 489 U.S. at 310.

Jennings next argument has nothing to do with the retroactivity of Hurst

v. Florida. Rather, it springs from a rule adopted by the Florida Supreme

Court in Hurst v. State: “the penalty phase jury must be unanimous in making

the critical findings and recommendation that are necessary before a sentence

of death may be considered by the judge or imposed.” Hurst, 202 So. 3d at 59.

The Florida Supreme Court recognized it was adopting a rule that required

“more protection…than that mandated by the federal Constitution[,]” and it

explicitly derived the rule from “the Florida Constitution and Florida’s long

history of requiring jury unanimity in finding all the elements of the offense to

be proven[.]” Id. at 54-57. Based on state law supplemented by snippets of

Supreme Court dicta, Jennings argues his death sentence violates the Eighth

Amendment because it flowed from a non-unanimous death recommendation.

The argument fails because Jennings identifies no misapplication of federal

law. What is more, the jury did unanimously find one aggravating factor when

it convicted Jennings of robbery. See Fla. Stat. § 921.141(6)(d).

Jennings’ third Eighth Amendment argument has even less to do with

Hurst v. Florida. He raises a Caldwell5 challenge based on the trial court’s

5 Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985).

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instruction to the jury “that its penalty phase verdict was merely advisory and

only needed to be returned by a majority vote.” (Doc. 61 at 134). The Supreme

Court explained the reach of Caldwell in Romano v. Oklahoma:

[W]e have since read Caldwell as relevant only to certain types of

comment—those that mislead the jury as to its role in the

sentencing process in a way that allows the jury to feel less

responsible than it should for the sentencing decision. Thus, to

establish a Caldwell violation, a defendant necessarily must show

that the remarks to the jury improperly described the role assigned

to the jury by local law.

512 U.S. 1, 9 (1994) (cleaned up). Jennings identifies no part of the trial court’s

instructions to the jury that mischaracterized the jury’s role in sentencing, and

after thorough review, the Court finds none. Jennings’ Caldwell challenge

lacks merit. See Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (“[I]t

is clear that references to and descriptions of the jury’s sentencing verdict as

an advisory one, as a recommendation to the judge, and of the judge as the

final sentencing authority are not error under Caldwell…because they

accurately characterize the jury’s and judge’s sentencing roles under Florida

law.”).

iii.

Retroactivity and the Fourteenth Amendment

Finally, Jennings argues that Florida’s retroactivity rule violates the

Equal Protection Clause: “Florida’s decision to apply the Hurst decisions only

to the ‘post-Ring’ group of death row inmates results in the unequal treatment

of prisoners who were all sentenced to death under the same unconstitutional

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scheme.” (Doc. 61 at 136). This argument is merely a restatement of his

Eighth Amendment argument, and it fails for the same reasons. The Supreme

Court not only approves of but mandates a retroactivity rule that hinges on

when sentences became final. Teague, supra.

To establish an equal-protection violation, Jennings “must prove

purposeful, intentional discrimination—and to do that, he must prove that the

governmental decisionmaker acted as it did ‘because of, and not merely in spite

of, its effects on an identifiable group.’” Morrissey v. United States, 871 F.3d

1260, 1171 (11th Cir. 2017) (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S.

256, 279 (1979)). Jennings fails to allege—much less prove—an unlawful

intent. The Florida Supreme Court explained the reason for the rule in Mosley

v. State, 209 So. 3d 1248, 1281 (Fla. 2016); it believed “that Florida’s capital

sentencing statute was unconstitutional from the time that the United States

Supreme Court decided Ring.”

Thus, Jennings has not demonstrated his sentence violates the Equal

Protection Clause of the Fourteenth Amendment.

2. Florida Supreme Court’s procedure on appeal of Jennings successive

Rule 3.851 motion

Jennings contends that by ordering him to brief the applicability of

Hitchcock to his case, and by affirming the denial of his successive Rule 3.851

motion without full briefing, the Florida Supreme Court violated his Eighth

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Amendment and Fourteenth Amendment rights to due process. Jennings’

argument fails for two reasons. First, the Florida Supreme Court’s procedure

did not harm Jennings because he is not entitled to retroactive application of

Hurst v. Florida. Second, an alleged defect in a state collateral proceeding

cannot be the basis for federal habeas relief because it does not undermine the

legality of the conviction itself. Holsey v. Thompson, 462 F. App’x 915, 917

(11th Cir. 2012).

Having reviewed each of the subparts of Ground Five, the Court finds

Jennings has not demonstrated that the state court’s rejection was contrary to

clearly established federal law or based upon an unreasonable determination

of the facts. Ground Five is denied in its entirety. 28 U.S.C. § 2254(d).

DENIAL OF CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute entitlement

to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather,

a district court must first issue a certificate of appealability (COA). “A [COA]

may issue…only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a

petitioner must demonstrate that “reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong,” Tennard

v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)), or that “the issues presented were adequate to deserve

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encouragement to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 335–

36 (2003) (citations omitted). Jennings has not made the requisite showing

here and may not have a certificate of appealability on any ground of his

Petition.

Accordingly, it is now

ORDERED:

(1) Petitioner Brandy Bain Jennings’ Amended Petition for Writ of

Habeas Corpus by a Person in State Custody (Doc. 61) is DENIED.

(2) Petitioner is DENIED a certificate of appealability.

(3) The Clerk of the Court is ORDERED to terminate any pending

motions, enter judgment, and close this case.

DONE and ORDERED in Fort Myers, Florida on December 1, 2020.

Copies: All Parties of Record

APPENDIX D

Jennings v. State, 123 So.3d 1101 (2013)

38 F a. L. Week y S481

123 So.3d 1101

Supreme Court of Florida.

Brandy Bain JENNINGS, Appellant,

STATE of Florida, Appellee.

Brandy Bain Jennings, Petitioner,

Michael D. Crews, etc., Respondent.

Nos. SC11–1016, SC11–1031.

June 27, 2013.

Rehearing Denied Oct. 3, 2013.

Synopsis

Background: After defendant's convictions

for robbery and first-degree murder were

affirmed by the Supreme Court, 718 So.2d

144, defendant moved for post-conviction

relief. Following an evidentiary hearing, the

Circuit Court, Collier County, Frederick

Robert Hardt, J., denied motion. Defendant

appealed.

Holdings: The Supreme Court held that:

[1] defense counsel's failure to present mental

health mitigation evidence during penalty

phase was not ineffective assistance;

[2] defense counsel's failure to discover and

present mitigating evidence of childhood

sexual abuse during penalty phase was not

deficient performance;

[3] defense counsel's failure to adequately

investigate and impeach State's witness at

trial constituted deficient performance, but

did not prejudice defendant;

[4] State's expert witness testimony was

properly admitted at trial;

[5] admission of photographs at trial was not

erroneous; and

[6] trial judge's characterization during

pretrial jury selection of case as “infamous”

was not fundamental error.

Affirmed.

Polston, C.J., and Lewis, J., concurred in

result.

Attorneys and Law Firms

*1107 Paul Kalil, Assistant Capital

Collateral Regional Counsel South, and

Elizabeth Stewart, Staff Attorney, Fort

Lauderdale, FL, for Appellant/Petitioner.

Pamela Jo Bondi, Attorney General,

Tallahassee, FL, and Carol M. Dittmar,

Sernior Assistant Attorney General, Tampa,

FL, For Appellee/Respondent.

Opinion

PER CURIAM.

Brandy Bain Jennings, who was twentysix years old at the time of the crime,

was convicted and sentenced to death for

the November 1995 first-degree murders of

Jennings v. State, 123 So.3d 1101 (2013)

38 F a. L. Week y S481

Dorothy Siddle, Vicki Smith, and Jason

Wiggins, all of which occurred during a

robbery of the Cracker Barrel Restaurant in

Naples. On direct appeal, we affirmed his

convictions and sentences. See Jennings v.

State, 718 So.2d 144 (Fla.1998). Jennings

now appeals the denial of his *1108 motion

for postconviction relief, filed pursuant to

Florida Rule of Criminal Procedure 3.850, 1

and simultaneously petitions this Court for a

writ of habeas corpus. We have jurisdiction.

See art. V, § 3(b)(1), (9), Fla. Const. For

the reasons expressed herein, we affirm the

postconviction court's denial of relief and

deny Jennings' petition for a writ of habeas

corpus.

FACTS AND PROCEDURAL HISTORY

This Court summarized the pertinent facts

underlying this crime on direct appeal as

follows:

Dorothy Siddle, Vicki Smith, and Jason

Wiggins, all of whom worked at the

Cracker Barrel Restaurant in Naples, were

killed during an early morning robbery

of the restaurant on November 15, 1995.

Upon arriving on the scene, police found

the bodies of all three victims lying

in pools of blood on the freezer floor

with their throats slashed. Victim Siddle's

hands were bound behind her back with

electrical tape; Smith and Wiggins both

had electrical tape around their respective

left wrists, but the tape appeared to have

come loose from their right wrists.

Police also found bloody shoe prints

leading from the freezer, through the

kitchen, and into the office, blood spots

in and around the kitchen sink, and an

opened office safe surrounded by plastic

containers and cash. Outside, leading

away from the back of the restaurant,

police found scattered bills and coins, shoe

tracks, a Buck knife, a Buck knife case, a

pair of blood-stained gloves, and a Daisy

air pistol.

Jennings (age twenty-six) and Jason

Graves (age eighteen), both of whom had

previously worked at the Cracker Barrel

and knew the victims, were apprehended

and jailed approximately three weeks later

in Las Vegas, Nevada, where Jennings

ultimately made lengthy statements to

Florida law enforcement personnel. In

a taped interview, Jennings blamed the

murders on Graves, but admitted his

(Jennings') involvement in planning and,

after several aborted attempts, actually

perpetrating the robbery with Graves.

Jennings acknowledged wearing gloves

during the robbery and using his Buck

knife in taping the victims' hands, but

claimed that, after doing so, he must have

set the Buck knife down somewhere and

did not remember seeing it again. Jennings

further stated that he saw the dead bodies

in the freezer and that his foot slipped in

some blood, but that he did not remember

falling, getting blood on his clothes or

hands, or washing his hands in the kitchen

sink. Jennings also stated that the Daisy

air pistol belonged to Graves, and directed

police to a canal where he and Graves had

thrown other evidence of the crime.

Jennings v. State, 123 So.3d 1101 (2013)

38 F a. L. Week y S481

In an untaped interview the next day,

during which he was confronted with

inconsistencies in his story and the

evidence against him, Jennings stated, “I

think I could have been the killer. In my

mind I think I could have killed them, but

in my heart I don't think I could have.”

At trial, the taped interview was played for

the jury, and one of the officers testified

regarding Jennings' untaped statements

made the next day. *1109 The items

ultimately recovered from the canal were

also entered into evidence.

The medical examiner, who performed

autopsies on the victims, testified that

they died from “sharp force injuries”

to the neck caused by “a sharp-bladed

instrument with a very strong blade,”

like the Buck knife found at the crime

scene. A forensic serologist testified that

traces of blood were found on the

Buck knife, the Buck knife case, the

area around the sink, and one of the

gloves recovered from the crime scene,

but in an amount insufficient for further

analysis. An impressions expert testified

that Jennings' tennis shoes recovered from

the canal matched the bloody shoe prints

inside the restaurant as well as some of the

shoe prints from the outside tracks leading

away from the restaurant.

The State also presented testimony

concerning previous statements made by

Jennings regarding robbery and witness

elimination in general. Specifically,

Angela Chainey, who had been a friend

of Jennings', testified that about two years

before the crimes Jennings said that if he

ever needed any money he could always

rob someplace or somebody. Chainey

further testified that when she responded,

“That's stupid. You could get caught,”

Jennings replied, while making a motion

across his throat, “Not if you don't leave

any witnesses.” On cross-examination,

Chainey further testified that Jennings

had “made statements similar to that

several times.”

The State also presented testimony

concerning previous statements made by

Jennings regarding his dislike of victim

Siddle. Specifically, Bob Evans, one of the

managers at Cracker Barrel, testified that

Jennings perceived Siddle to be holding

him back at work and that, just after

Jennings quit, he said about Siddle, “I

hate her. I even hate the sound of her

voice.” Donna Howell, who also worked

at Cracker Barrel, similarly testified that

she was aware of Jennings' animosity and

dislike of Siddle, and that Jennings had

once said about Siddle, “I can't stand the

bitch. I can't stand the sound of her voice.”

The jury found Jennings guilty as

charged. In the penalty phase, the defense

presented mitigation evidence, including

general character testimony from witness

Mary Hamler, who testified on direct

examination that she had lived with

Jennings for two and one-half years. She

also testified that Jennings had gotten

along well with her children during

that time, and that he cried when they

(Jennings and Hamler) broke up.

Jennings v. State, 123 So.3d 1101 (2013)

38 F a. L. Week y S481

On cross-examination, the State elicited

testimony from Hamler that there was

another side to Jennings' character and

that Jennings once said that if he ever

committed a robbery, he would not

be stupid enough to stick around, but

would go north. Hamler further testified

on cross-examination that Jennings was

angry at Cracker Barrel in general, and

Siddle in particular, for “jerking him

around” and holding him back at work,

and that in this regard Jennings once said

of Siddle that “one day she would get

hers.”

The defense presented further character

evidence from several of Jennings' friends

that he was good with children, got

along with everybody, and was basically

a nonviolent, big-brother type who was

happy-go-lucky, fun-loving, playful, laid

back, and likeable. Jennings' mother

testified that her son never met his father

and that she raised Jennings herself. She

claimed that Jennings had been a straightA student, but quit school to take care of

her when she became sick.

*1110 The jury recommended death by

a vote of ten to two as to each of the

murders. In its sentencing order, the trial

court found three aggravators: (1) that

the murders were committed during a

robb

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