Opposition Brief — Herring v. Crosby

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

Supreme Court, ULS.

nee ao 9

a a | rb}

(4) ———\ auG 1 - 2005

DOCKET NO. 05-16 _L_-DFFICEQETHEGLERK

IN THE SUPREME COURT OF THE UNITED STATES

TED HERRING,

Petitioner,

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 998818

OFFICE OF THE ATTORNEY GENERAL

444 Seabreeze Blvd., Fifth Floor

Daytona Beach, Florida 32118

Telephone: (386)238-4990

Facsimile: (386)226-0457

QUESTIONS PRESENTED FOR REVIEW

{Capital Case]

[Restated]

Whether this Court should exercise its certiorari

jurisdiction to review issues that were correctly decided by the

Eleventh Circuit Court of Appeals, which are fact-specific in

nature, and which are of insufficient importance to warrant the

exercise of this Court’s certiorari jurisdiction?

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED FOR REVIEW .................. i

_ TABLE OF AUTERURIREGGS «¢0éancaeeunaeeaveia tases ii]

STATEMENT OF JUREGIMIBMAS kcascovslecscvcessaresss ]

CONSTITUTIONAL PROVISIONS INVOLVED ............ ]

STATEMENT OF THE CARS 2s cccuecnebecccpenseecessse 2

REASONS WHY THE WRIT SHOULD BE DENIED ........ 6

| rrr ro rr ER Ae ye 7

THE CLEMONS CLAIM WAS PROPERLY

DECIDED ON PROCEDURAL GROUNDS.

|| SPEIrer rir Peas eee 15

THE INEFFECTIVENESS OF COUNSEL

CLAIM WAS CORRECTLY DECIDED.

THE CLAIM FOR WHICH THE ELEVENTH

CIRCUIT REFUSED TO GRANT A

CERTIFICATE OF APPEALABILITY

IS PROCEDURALLY DEFAULTED.

CONCLUSION .....ssickcuueeees eee eee oN henees 23

TABLE OF AUTHORITIES

CASES

Bailey v. Nagle,

172 F.3d 1299 (11th Cir. 1999) ............-..- 22 eee 9

Breedlove v. Moore,

279 F.3d 952 (11th Cir.), reh’g and reh’g en banc denied,

48 Fed. Appx. 329 (11th Cir. 2002), cert. denied,

537 USS. 1204, 154 L. Ed. 2d 1047, 123 S. Ct. 1278,

reh'g denied, 538 U.S. 995, 155 L. Ed. 2d 699,

pot eB +. 7r. |.) Sn er ee ee 17

Clemons v. Mississippi,

494 U.S. 738, 110 S. Ct. 1441,

108 L. Ed. 24 725 (1990) . 0... cc cccccccscscees passim

Cuyler v. Sullivan,

446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) . . 6

Herring v. Dugger,

528 So. 2d 1176 (Fla. 1988) ........... 2 ee eee eee ees 21

Herring v. Secretary, Department of Corrections,

397 F.3d 1338 (11th Cir. 2005) ........----- eee e eee: 6

Herring v. State, 7

580 So. 2d 135 (Fla. 1991) .......... eee ee eee eee 11

Miller-El v. Dretke,

eo Ree cy sy. I eee eri ee 15

Rice v. Sioux City Cemetery,

BU, FO CNIO 6 wc tcncsccedcrccacsseias 15, 20, 22

iil

Rogers v. State,

te we ee eer errr errs ere 5

Rompilla v. Beard,

SE ie a EE AA dic beh Oka A ee ee kee Oe 20

Slack v. McDaniel,

ey PERE oto Sarre ered as uae ieee 22

United States v. Coy,

re ee ane ee ee kx os ho kk de ee tnd eas 8

United States v. Dicter,

Se ee RRO, MMOD ith as bse ekarkaaeeans 8

United States v. Martinez,

ee ee Ge a EE nk ewe ed ew anwa won kcnus 8

United States v. Nealy,

POT oe ee CEA: ED ko bee ade ehess 14

United States v. Whitesell,

314 F.3d 1251 (11th Cir. 2002), cert. denied,

539 U.S. 951, 156 L. Ed. 2d

ey Se i RA ED 6 hk de daske denen cncndnnand 8

Wainwright v. Sykes,

433 U.S. 72, 97S. Ct. 2497, 53 L. Ed. 2d 594 (1977) ....9

Wiggins v. Smith,

ge er re errr Th rer rye rr eee 20

RE Oa ii Ie eae 1

WUC AON ook ae 3, 4,18

MISCELLANEOUS

Florida Rule of Criminal Procedure 3.850 ........ 4,5, 18

Supreme Court Rule 10 .... 21... eee eee eee 13, 18, 20

DOCKET NO. 05-16

IN THE SUPREME COURT OF THE UNITED STATES

TED HERRING,

Petitioner,

Vv.

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents.

CITATION TO OPINION BELOW

The Eleventh Circuit Court of Appeals decision affirming

the denial of habeas corpus relief was issued on January 31,

2005, and is reproduced at A-1 through A-34. Herring’s motion

for rehearing and for rehearing en banc was denied on March 29,

2005, and is reproduced at A-35.'

TATEME F SDICTION

Herring asserts that this Court’s jurisdiction is based

upon 28 U.S.C. § 1257(a). The Respondents agree that this

statutory provision sets out the scope of this Court’s certiorari

jurisdiction, but respectfully submit that this case is inappropriate

for the exercise of this Court’s discretionary jurisdiction.

‘Opinions of other Courts are quoted or cited as appropriate.

CONSTITUTIONAL PROVISIONS INVOLVED

Herring asserts that the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the Constitution of the United States

are at issue in this proceeding.

STATEMENT OF THE CASE

On pages 2-7 of the petition, Herring sets out an

argumentative version of the history of this case which contains

no citation to any reported decision. The Respondents rely upon

the following statement of the facts of this case, which is taken

from the opinion of the Eleventh Circuit Court of Appeals:

A. Factual Background

On May 29, 1981, Herring held up a 7-Eleven

convenience store in Daytona Beach. Herring

shot and killed the store clerk. A hold-up note

was found at the scene. At some point, the police

determined that Herring's fingerprint was on the

note. The murder weapon was never found.

After the robbery, Herring was arrested on

charges relating to a stolen car and was taken to

the Daytona Beach Police Station. He waived his

Miranda rights and made three statements, in two

of which he confessed to the robbery and

homicide at the 7-Eleven store. Three officers

were involved in the interrogations.

In his first statement, which was taped, Herring

told the officers he went to the store with the

intent to commit a robbery, but before he could

commit the crime, a second man robbed the store

and killed the clerk. In a second, unrecorded

statement made privately to Detective Varner,

Herring stated he shot the clerk in the head and

then, while the clerk was lying on the ground,

shot the clerk a second time to eliminate him as

a witness. In a final, taped statement to the

officers, Herring claimed he robbed the store and

only accidentally shot the clerk when he thought

the clerk was coming across the counter. Herring

stated he shot the clerk a second time out of fear.

B. Procedural Background

In February 1982, Herring was tried in Volusia

County for armed robbery and first-degree

murder. He was represented by two public

defenders: Howard Pearl and Peyton Quarles.

Pearl handled the guilt phase of the trial and

Quarles handled the penalty phase.

Detective Varner testified at the guilt phase

regarding Herring's unrecorded statement.

Following Varner's direct testimony, Pearl cross-

examined him on the length of interrogation and

whether Herring received food or time to rest

during the interrogation. Pearl similarly cross-

examined the two other officers involved in

questioning Herring. Herning testified on his own

behalf, relating his initial story -- that he planned

to commit the robbery, but another person beat

him to it and killed the clerk.

The jury found Herring guilty on both counts

against him. The penalty phase followed. The

only witness testifying in mitigation was

Herring's mother, Dorothy Meyers. The jury

returned an advisory sentence of death by an

eight-to-four vote.

The tnal judge sentenced Herring to death. In

aggravation, the trial judge found and considered

as aggravating circumstances: (1) "the Defendant

has been previously convicted of another capital

offense or of a felony involving the use or threat

of violence to some person;" (2) "the cnme for

which the Defendant was to be sentenced was

committed while he was engaged in the

commission of the crime of robbery;" (3) "the

crime for which the Defendant was to be

sentenced was committed for the purpose of

avoiding or preventing a lawful arrest or effecting

an escape from custody;" and (4) "the crime for

which this Defendant was to be sentenced was

committed in acold, calculated, and premeditated

manner without any pretense of moral or legal

justification.” In mitigation, the trial judge found

and considered as mitigating circumstances: (1)

the Defendant was 19 years old at the time of the

crime; and (2) "Defendant had a difficult

childhood," ie., "Defendant was _ raised

essentially without a father, was hyperactive, had

learning disabilities, and had trouble in school."

The Florida Supreme Court affirmed Herring's

convictions and death sentence on direct appeal.

In April 1985, Herring filed his first Florida Rule

of Criminal Procedure 3.850 motion for post-

conviction relief. The state trial court denied the

motion and the Florida Supreme Court affirmed.

In March 1987, Herring filed a petition in the

Florida Supreme Court for a writ of habeas

corpus. The Florida Supreme Court denied relief.

PN ee ee a ec atnes so

Herring then filed a petition in federal court

under 28 U.S.C. § 2254 for a writ of habeas

“corpus. The district court dismissed the petition

without prejudice due to Herring's failure to

exhaust his state court remedies.

In 1989, Herring filed a second Rule 3.850

motion, ciaiming, infer alia, that his death

sentence should be vacated under Rogers v. State,

511 So. 2d 526, 533 (Fla. 1987), which declared

the premeditation aggravator inapplicable to

cases like Herring's. The state trial court denied

relief under Rogers. The court did, however,

grant Herring leave to amend his motion to add a

claim that Pearl operated under an impermissible

conflict of interest in serving both as Herring's

trial counsel and as a special deputy sheriff. The

trial court denied the amended motion. The

Florida Supreme Court held the premeditation

aggravating factor should not have been applied,

but affirmed without granting a new sentencing

hearing. On the conflict-of-interest claim, the

court remanded for an evidentiary hearing.

On remand, Herring's conflict-of-interest claim

was consolidated for hearing with similar claims

raised by other defendants who had been

represented by Pearl. The state trial judge denied

relief. The Florida Supreme Court remanded for

individual hearings on the appealed cases,

including Herring's. The state trial court held a

second hearing and again denied Herring's

conflict-of-interest claim. The Florida Supreme

Court affirmed.

Herring filed a § 2254 petition for a writ of

habeas corpus in federal district court. The

district court denied relief and denied a

COA.This Court granted a COA on three issues:

(1) Whether the Florida Supreme

Court acted contrary to Clemons

v. Mississippi, 494 U.S. 738, 110

S. Ct. 1441, 108 L. Ed. 2d 725

(1990) and violated the Eighth

and Fourteenth Amendments in

upholding Herring's sentence

despite the elimination of the

heightened premeditation

aggravating circumstance;

(2) Whether Herring was

deprived of the effective

assistance of counsel at the

- sentencing phase of his criminal

tnal; and

(3) Whether, in evaluating

Howard Pearl's conflict of interest

under the Sixth Amendment, the

state courts unreasonably applied

Cuyler v. Sullivan, 446 U.S. 335,

100 S. Ct. 1708, 64 L. Ed. 2d 333

(1980) to the facts of Herring's

case.

Herring v. Secretary, Department of Corrections, 397 F.3d 1338,

1340 (11th Cir. 2005).?

?The Conflict of interest claim is not raised in the petition.

REASONS WHY THE WRIT SHOULD BE DENIED

On pages 7-30 of the petition, Herring argues three

grounds which, he claims, justify the exercise of this Court’s

discretionary jurisdiction. However, the Eleventh Circuit Court

of Appeals correctly decided each ground for relief that was

before it, and properly denied a certificate of appealability as to

the ground that was not. Despite Herring’s criticisms of the

Eleventh Circuit, that Court properly applied settled habeas law,

and affirmed the denial of relief.

I. THE CLEMONS CLAIM WAS PROPERLY

DECIDED ON PROCEDURAL GROUNDS.

On pages 10-17 of the petition, Herring argues that the

decisions of the Florida Supreme Court and the Eleventh Circuit

Court of Appeals “are directly contrary to” this Court’s Clemons

and Sochor decisions. However, Herring does not explain how

that can be so -- the Eleventh Circuit decided this claim on

procedural grounds, and did not reach the merits of the Clemons

issue. Despite the assertions contained in the petition, the

Eleventh Circuit properly decided this claim based upon

Herring’s multiple procedural defaults, the first based upon the

fundamental appellate practice tenet that issues cannot be raised

for the first time in a reply brief, and the second based upon

Herring’s failure to properly preserve the Clemons issue raised

in the federal habeas corpus proceeding.

In affirming the denial of relief based on the Clemons

claim, the Eleventh Circuit held:

Herring contends that when the Florida Supreme

Court struck the heightened premeditation

aggravating circumstance but nevertheless

affirmed his death sentence, it failed to conduct

any of the three analyses set out as permissible in

Clemons. In response, the State argues: (1)

Herring's claim is procedurally barred; (2)

Herring's claim alleges nothing more than an

esvor of state law and therefore is not cognizable

in federal habeas corpus; and (3) Hermng

received-all the process he was due. The district

court rejected Herring's claim on two bases, one

of which was that the claim was procedurally barred.

Herring did not present any arguments pertaining

to procedural bar in his initial brief. In his reply

brief, however, Herring argues his Clemons claim

is not procedurally barred because he did present

his Clemons argument to the Florida Supreme

Court during proceedings on his second 3.850

motion and the Florida Supreme Court reached

the merits of his claim.FN1 As we repeatedly

have admonished, "arguments raised for the first

time in a reply brief are not properly before a

reviewing court." United States v. Coy, 19 F.3d

629, 632 n.7 (11th Cir. 1994) (citation omitted);

see also United States v. Whitesell, 314 F.3d

1251, 1256 (11th Cir. 2002) (Court need not

address issue raised for first time in reply brief),

cert. denied, 539 U.S. 951, 156 L. Ed. 2d 643,

123 S. Ct. 2628 (2003); United States v. Dicter,

198 F.3d 1284, 1289 (11th Cir. 1999) (issue

raised for first time in reply brief waived); United

States v. Martinez, 83 F.3d 371, 377 n.6 (11th

Cir. 1996) (declining to consider arguments

raised for the first time in a reply brief). Although

Herring's failure to present his procedural bar

argument in his initial brief is determinative, we

nevertheless briefly discuss procedural bar and

the arguments Herring raises in his reply brief.

FN1 We note Herring does not

argue in the alternative that there

is cause and prejudice excusing

his procedural default or that, if

raised for the first time in state

court now, it would not be barred

under state law procedural bar

principles.

“A state habeas corpus petitioner who fails to

raise his federal claims properly in state court is

procedurally barred from pursuing the same

claims in federal court absent a showing of cause

for and actual prejudice from the default." Bailey

y. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999)

(citing Wainwright v. Sykes, 433 US. 72, 87, 97

S.Ct. 2497, 2506-07, 53 L. Ed. 2d 594 (1977)).

This procedural default arises in two situations:

(1) where the state court itself correctly applies

state law procedural bar principles to conclude a

federal claim is barred; and (2) where a claim

was never raised in state court, and it is clear the

unexhausted claim would now be barred under

state law procedural bar principles. Jd. at 1 302-03

(citations omitted). The State's argument is that

Herring's Clemons claim falls within the second

category. We agree.

Herring challenged the application of the cold,

calculated, and premeditated aggravating factor

in his direct appeal.

Herring again challenged the application of the

aggravating factor in his initial brief appealing

the denial of his second Rule 3.850 motion, and

argued a new sentencing hearing should be

conducted. In his reply brief to the Florida

Supreme Court, Herring argued the jury's

improper consideration of the heightened

aggravating factor could not be harmless beyond

a reasonable doubt. Herring further stated:

Indeed, because "the procedure to

be followed by the trial judges

and juries is not a mere counting

process of X number of

aggravating circumstances and Y

number of mitigating

circumstances,” Elledge, 346 So.

2d at 1003, this Court has

consistently ordered new

sentencing hearings in similar

cases. .. . The result here should

be no different. Cf Clemons v.

Mississippi, 494 U.S. 738, 108 L.

Ed. 2d 725, 110 S. Ct. 1441, 58

U.S.L.W. 4395, 4399-4400 & n.5

(Mar. 28, 1990) (failure to

remand to a sentencing jury

violates the Constitution "if the

decision is made arbitrarily").

The Florida Supreme Court struck the challenged

aggravating factor, but affirmed Herring's death

sentence stating:

While the cold, calculated, and

premeditated aggravating factor

no longer applies to the

circumstances in Herring, we find

that this is not a change that

requires a new sentencing hearing

in this case. None of the facts and

circumstances that were before

the jury regarding how Herring

committed the murder are

changed. If the aggravating

circumstance of a 'conviction of a

prior crime of violence’ had been

eliminated, that would have

changed the facts and

circumstances before the jury.

The evidence before the jury

established that Herring shot the

clerk once in the head and again

after the clerk fell to the floor and

that the second shot was to

prevent the clerk from being a

witness against him. Given the

other aggravating and mitigating

factors that went into the

weighing process in the

sentencing phase of this case, we

find that the result of the

weighing process would not have

been different had this

aggravating circumstance not

been articulated as a factor in the

sentencing. We find that the

elimination of this factor, under

the circumstances of this case,

does not compromise the

weighing process of either the

judge or jury.

Herring v. State, 580 So. 2d 135, 138 (Fla. 1991)

(citations omitted).

In his motion for a rehearing, Herring made three

arguments as to why the Florida Supreme Court's

decision was incorrect. Herring first argued the

court committed constitutional error in that it

failed to apply its “long-standing rule" of

remanding for a new sentencing hearing when it

strikes one or more aggravating circumstances

relied on at sentencing and mitigating

circumstances are present. Herring cited Clemons

in this section of his motion, including again a

parenthetical stating that "failure to remand to a

sentencing jury violates the Constitution ‘if the ©

decision is made arbitrarily." In its response, the

State pointed out that in Clemons, the Supreme

Court "established that state courts may conduct

a harmless error analysis if an aggravating

circumstance is stricken." Herring acknowledged

as much in his second argument -- that the

Florida Supreme Court's "finding of harmless

error [could not] be squared with the facts of the

case."FNZ Importantly, although Herring

challenged the court's finding of harmless error,

he did not assert the court failed to engage in

harmless error analysis. Indeed, Herring

asserted the Florida Supreme Court had

engaged in harmless error review, but argued

the court erred in its finding of harmlessness.

Herring's third argument was that the court's

opinion "appears to announce a new rule" that the

erroneous application of a statutory aggravator

may be deemed harmless where elimination of

the circumstance does not alter the facts and

circumstances regarding how the defendant

committed the murder, and thereby "calls into

question the constitutionality, as applied, of

Florida's capital sentencing scheme."FN3

FN2Heming cited Clemons in this

section of his motion as support

for his contention that "the

circumstances surrounding both

Herring's crime and _ his

sentencing hearing make clear

that the erroneous application of

the heightened premeditation

aggravating circumstance cannot

be deemed harmless beyond a

reasonable doubt."

FN3With respect to this final

point, Herring contended:

In a case involving substantial

mitigation, it is simply impossible

to know how the sentencers

would have performed the

weighty, yet delicate, task of

balancing the aggravating and

mitigating factors in the absence

of one of the aggravating factors.

To suggest that the presence or

absence of one of the aggravating

factors in such a case makes no

difference in the weighing

process threatens to return the

Florida statutory scheme to the

"standardless discretion"

condemned in Furman.

After reviewing Herring's state court filings, we

conclude that, although Herring made many

arguments pertaining to the cold, calculated, and

premeditated aggravator, he did not preserve

the argument he now makes -- that the Florida

Supreme Court erred in affirming his sentence

after striking the factor without performing

the analysis set out by the United States

Supreme Court in Clemons — and the Florida

Supreme Court did not consiéer such a claim.

In summary, we affirm the district court's denial

of Herring's claim. The district court found

Herring's claim to be procedurally barred.

Herring failed to argue the procedural bar

issue in his initial brief. Even if the arguments

set out in Herring's reply brief had properly been

presented in his initial brief, we would have

rejected them.FN4

FN4 For the first time, in a

supplemental letter brief, Herring

asserts additional procedural bar

arguments. "Parties cannot

properly raise new issues at

supplemental briefing. United

States v. Nealy, 232 F.3d 825, 830

(llth Cir. 2000) (citation

omitted).

Herring, supra, at 1342-1344. (italics in original; emphasis

added).? The Eleventh Circuit correctly decided this claim on

7In an apparent effort to excuse his failure to address the District

Court’s procedural default finding in his initial brief, Herring asserts that his

“initial brief was predicated on the threshold issue that his Clemons claim was

independently adequate procedural grounds, and the issue

contained in the petition is unworthy of this Court’s certiorari

jurisdiction.’ .

The internal inconsistency of Herring’s position with

respect to the procedural default finding (separate and apart from

his failure to properly brief that issue) likewise renders this case

inappropriate for certiorari review. As the Eleventh Circuit

pointed out, Herring “asserted that the Florida Supreme Court

had engaged in harmless error review, but argued the court erred

in its finding of harmlessness.” Herring, supra. Given that

Clemons explicitly allows harmless error review under these

facts, it stands reason on its head to suggest that this argument

preserved the present argument that the Florida Supreme Court

did not follow Clemons. To hold as Herring would have this

Court do would be to hold that every argument also preserves its

converse argument -- that result finds no support in the law, and

makes no sense. This claim is inappropriate for, and undeserving

of, this Court’s review.

To the extent that further discussion of this claim is

necessary, the claim contained in the petition is highly fact

specific, and has none of the importance necessary to warrant the

exercise of this Court’s discretionary jurisdiction. Rice v. Sioux

not defaulted.” Petition, at 17 n.6. Given that the District Court explicitly

denied relief on procedural default grounds, that argument is too clever by

half.

Contrary to Herring’s claim, Miller-El v. Dretke, 125 S.Ct. 2317

(2005) worked no modification of settled procedural law, which was applied

in this case by the Eleventh Circuit. That case is of no help to Herring, and his

reliance on it is misplaced. No case cited by Herring supports the notion that

the Eleventh Circuit did anything other than apply procedural default law

correctly to preclude review of a claim that Herring never raised in State

Court.

City Cemetery, 349 U.S. 70, 79 (1950); Supreme Court Rule 10.

The petition should be denied.

Il. THE INEFFECTIVENESS OF COUNSEL

CLAIM WAS CORRECTLY DECIDED.

On pages 18-25 of the petition, Herring asserts that the

Eleventh Circuit “unreasonably applied” Strickland in affirming

the denial of relief on the ineffectiveness of penalty phase

counsel claim, and that, in doing so, that Court engaged in

“improper appellate fact-finding.” Herring’s argument appears to

be based on the premise that the Court of Appeals sits as a sort

of super-District Court, instead of recognizing that that Court

reviews the decision of the District Court under the strictures of

the AEDPA, with its heightened standards of deference for State

Court rulings. Contrary to Herring’s claims, the Eleventh Circuit

correctly found that the rulings of the State post-conviction trial

judge were neither contrary to, nor an unreasonable application

of, clearly established federal law.

In affirming the denial of relief on this claim, the

Eleventh Circuit reviewed the applicable standard of review

under the AEDPA, and stated:

The state trial court judge who issued a ruling on

Herring's ineffective-assistance-of-counsel claim

is the same judge who presided at trial. The state

trial judge was, therefore, intimately aware of

everything that happened at, and was involved in,

the tnal. In an attempt to obtain similar

familiarity, we have reviewed the entire record. It

is evident from our review that the state court

rulings were eminently reasonable and were not

contrary to clearly established federal law.

BEC eS ong Cn eee Leer Sa eae Se Dee . Sach aloes

ast Read een IE A Bleed

We turn first to Herring's contention that Quarles

did not perform a meaningful investigation into

his mental condition. The state courtFN6

concluded Herring established neither deficient

performance nor prejudice. The record supports

the state court conclusions.

FN6 The Florida Supreme Court

expressly stated it agreed with the

trial judge's findings. We use the

term "state court" in this

discussion to refer to the state

tral court and the Florida

Supreme Court.

Herring, supra, at 1347-48. The Eleventh Circuit then reviewed

the facts contained in the record, and concluded that:

Upon review of the record before the state courts,

the state court resolution of Herring's claims was

not contrary to, and did not involve an

unreasonable application of, clearly established

federal law, and did not result in a decision that

was based on an unreasonable determination of

the facts.

Id., at 1350.

The Eleventh circuit also reviewed and summarized the

findings of the District Court, and concluded that:

Although the district court did not hold a hearing

on Herring's ineffective-assistance-of-counsel

claim, such treatment of a claim is appropriate

where, as here, "a hearing would not assist in the

resolution of [petitioner's] claims.” Breedlove v.

Moore, 279 F.3d 952, 960 (11th Cir.) (citation

omitted), reh‘g and reh'g en banc denied, 48 Fed.

Appx. 329 (11th Cir. 2002), cert. denied, 537

U.S. 1204, 154 L. Ed. 2d 1047, 123 S. Ct. 1278,

reh'g denied, 538 U.S. 995, 155 L. Ed. 2d 699,

123 S. Ct. 1825 (2003).

Applying the deferential § 2254 standard of

review, the district court correctly affirmed the

state court decisions. As set out in Part II.C.1.a.

above, the state court decisions were supported

by the record before those courts. We further note

the district court had before it not only the record

that was before the state courts in resolving these

issues, but also the record of additional

post-conviction proceedings in this case. Nothing

in the record of these additional post-conviction

proceedings undermines the state court decisions.

Most notably, the post-conviction record includes

a December 1991 deposition of Quarles that was

taken by Herring's current counsel during

proceedings on Herring's claim that Pearl had

acted at trial under an impermissible conflict of

interest. In his deposition, Quarles stated his

theory originally was to get Herring to plead

guilty. He said the trial judge had indicated that

if Herring pled guilty, he would receive a life

sentence. (In his own December 1992 deposition,

Pearl testified that he had a similar recollection.)

When Herring refused to plead guilty, Quarles'

tactic was to try to convince the jury that Herring

was young and ignorant.

In terms of investigation, Quarles stated that he

talked to Herring about "possible witnesses,

events in his life, relatives." Quarles also testified

that he had Herring examined and "a report was

produced." He testified that he did not know how

to get the childhood reports regarding Herring's

mental condition admitted: "I made some attempt

to talk to a doctor or two that had examined him

and either I couldn't locate them or they had other

information or they had other testimony that was

detrimental to call as a witness." When

questioned specifically about a report from St.

Luke's Hospital, Quarles further stated;

I can't specifically say what I did

or if I was able to locate the

doctor. I do know that I attempted

to locate some doctors, could not

-- was unsuccessful as to one or

two or one. It seems to me there

was some doctor somewhere,

maybe here, that was definitely

going to throw in Mr. Herring

despite this and this and this, Mr.

Herring knew exactly what he

was doing and Mr. Herring

intended to kill Mr. Heolzelg

[sic].

With respect to investigating and presenting

character witnesses, Quarles stated that, through

his discussions with Herring and Meyers, he

concluded there was no one who could attend the

trial who might be a good character witness on

Herring's behalf.

Again, the state court rulings were sustainable on

the record that was before the state courts in

ruling on Herring's claims. Moreover, the

additional post-conviction record before the

district court does nothing to undermine those

rulings. We affirm the district court's denial of

. Herring's claims.

)

Id., at 1351-52. Far from being “improper appellate factfinding,”

the decision of the Eleventh Circuit represents a careful,

conscientious, and correct application of the AEDPA to this case.

The Circuit Court decided the ineffectiveness claim correctly,

and this claim is inappropriate for the exercise of this Court’s

discretionary jurisdiction.

To the extent that further discussion of this claim is

necessary, the claim contained in the petition is highly fact

specific, and has none of the importance necessary to warrant the

exercise of this Court’s discretionary jurisdiction. Rice v. Sioux

City Cemetery, supra; Supreme Court Rule 10. The petition

should be denied.

Finally, to the extent that Herring relies on Wiggins v.

Smith, 539 U.S. 510 (2003) and Rompilla v. Beard, 125 S.Ct.

2456 (2005) as support for his position, those cases do’ not

present the factual situation present in this case. Neither of those

decisions worked a change in the law, but rather are based on

Strickland, which was applied by the Court of Appeals. Wiggins

and Rompilla do not compel a different result. When the

speculation of Herring’s petition is stripped away, there is no

basis for the exercise of this Court’s certioran jurisdiction.

Ill. THE CLAIM FOR WHICH THE ELEVENTH

CIRCUIT REFUSED TO GRANT A

CERTIFICATE OF APPEALABILITY

IS PROCEDURALLY DEFAULTED.

’

BAR ala be AIOE TR aS tr OATS RENE OS o E ON E NES Rag A EPO “

On pages 26-30 of the petition, Herring argues that the

Eleventh Circuit was wrong to refuse to grant a certificate of

appealability with respect to his claim that a Miranda violation

occurred in connection with an interview conducted by Herring’s

probation officer. In a remarkably misleading bit of advocacy,

Herring asserts that he raised this issue as a substantive claim,

and that the Florida Supreme Court decided the claim on the

merits. Petition, at 26-27. That is not the true posture of the

“Miranda claim,” and the correctness of the Eleventh Circuit’s

ruling, and the inappropriateness of this issue for certiorari

review, is shown by the history of this case.

~ Inan effort to attack the procedural default finding of the

District Court, Herring cites this Court to Herring v. Dugger, 528

So. 2d 1176 (Fla. 1988), for the proposition that the Florida

Supreme Court decided this claim on the merits. The true facts

are that the issue before the Florida Supreme Court was a claim

that appellate counsel was ineffective for not raising the

Miranda-based claim. In denying relief, the Florida Supreme

Court held:

We find the statement was clearly admissible

“and, consequently, appellate counsel was not

deficient in failing to raise this issue.

Herring v. Dugger, 528 So. 2d at 1176, 1178 (Fia. 1988). While

the Court did state that the statement was admissible, the

admissibility vel non of the statement was not the issue before it

-- Herring had pleaded a stand-alone claim of ineffectiveness of

appellate counsel, and that was the issue that the State Court

ultimately decided. The quoted language, which is what Herring -

has based his claim on, is not a merits ruling that reverse a prior

State procedural bar finding.

The District Court, quite correctly, decided the

substantive claim that was before it, which was the same claim

that had been raised in the Florida Supreme Court and held

procedurally barred by that Court because it could have been but

was not raised on direct appeal. Pet. App. at 118-19; Herring v.

State, 501 So. 2d at 1279-80. The District Court correctly

enforced Florida’s settled procedural default rules, and that

ruling was properly respected by the Eleventh Circuit. Given the

clarity of the procedural default (which is not open to debate),

there is no showing that reasonable jurists could debate whether

the petition could have been resolved differently, and, because

that is so, there is no basis which would support the granting of

a certificate of appealability. Slack v. McDaniel, 529 U.S. 473

(2000). The denial of the certificate of appealability was the

correct result under these facts, and is an issue that is unworthy

of this Court’s certiorari jurisdiction.

To the extent that further discussion of this claim is

necessary, the claim contained in the petition is highly fact

specific, and has none of the importance necessary to warrant the

exercise of this Court’s discretionary jurisdiction. Rice v. Sioux

City Cemetery, supra; Supreme Court Rule 10. The petition

should be denied.

CONCLUSION |

Based upon the foregoing arguments and authorities, the

Respondents respectfully submit that the petition for writ of

certiorari should be denied in all respects.

Respectfully submitted,

r CHARLES J. CRIST, JR.

ATTORNEY GENERAL

KENNETH S. NUNNELLEY

SENIOR ASSISTANT

ATTORNEY GENERAL

Florida Bar #0998818

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(386) 238-4990

Fax # (386) 226-0457

DOCKET NO. 05-16

IN THE SUPREME COURT OF THE UNITED STATES

TED HERRING,

Petitioner,

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents.

INDEX TO APPENDIX

Opinion, United States Court of Appeals,

Eleventh Circuit, Decided January 31, 2005 ............ Al-A34

Order Denying Rehearing, United States

Court of Appeals, Eleventh Circuit,

ee ouSs hisens nese dsducesdscdesces A35

—spueiocaiaaas ar

P me vox YEP € eke Mead

NOE GELE EE IPTG TS TE OE OP TR ene nee

TED HERRING, Petitioner-Appellant,

versus.

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

No. 03-12598

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

January 31, 2005, Decided

JUDGES: Before BIRCH, DUBINA and BLACK, Circuit Judges.

OPINION: BLACK, Circuit Judge:

Appellant Ted Herring filed a habeas petition under 28 U.S.C. § 2254

challenging his 1982 state-court convictions for armed robbery and

first-degree murder, and his resulting death sentence. The district court

denied Herring's petition. We granted a certificate of appealability

(COA) on three issues. We now affirm.

I. BACKGROUND

A. Factual Background

On May 29, 1981, Herring held up a 7-Eleven convenience store in

Daytona Beach. Herring shot and killed the store clerk. A hold-up note

was found at the scene. At some point, the police determined that

Herring's fingerprint was on the note. The murder weapon was never

found.

After the robbery, Herring was arrested on charges relating to a stolen

car and was taken to the Daytona Beach Police Station. He waived his

Miranda rights and made three statements, in two of which he

confessed to the robbery and homicide at the 7-Eleven store. Three

officers were involved in the interrogations.

In his first statement, which was taped, Herring told the officers he

went to the store with the intent to commit a robbery, but before he

could commit the crime, a second man robbed the store and killed the

clerk. In a second, unrecorded statement made privately to Detective

- Varner, Herring stated he shot the clerk in the head and then, while the

clerk was lying on the ground, shot the clerk a second time to

eliminate him as a witness. In a final, taped statement to the officers,

Herring claimed he robbed the store and only accidentally shot the

clerk when he thought the clerk was coming across the counter.

Herring stated he shot the clerk a second time out of fear.

B. Procedural Background

In February 1982, Herring was tried in Volusia County for armed

robbery and first-degree murder. He was represented by two public

defenders: Howard Pearl and Peyton Quarles. Pearl handled the guilt

phase of the trial and Quarles handled the penalty phase.

Detective Varner testified at the guilt phase regarding Herring's

unrecorded statement. Following Varner's direct testimony, Pearl

cross-examined him on the length of interrogation and whether

Herring received food or time to rest during the interrogation. Peari

similarly cross-examined the two other officers involved in

questioning Herring. Herring testified on his own behalf, relating his

initial story -- that he planned to commit the robbery, but another

person beat him to it and killed the clerk.

The jury found Herring guilty on both counts against him. The penalty

phase followed. The only witness testifying in mitigation was

Herring's mother, Dorothy Meyers. The jury returned an eee

sentence of death by an eight-to-four vote.

The trial judge sentenced Herring to death. In aggravation, the trial

judge found and considered as aggravating circumstances: (1) "the

Defendant has been previously convicted of another capital offense or

of a felony involving the use or threat of violence to some person;" (2)

"the crime for which the Defendant was to be sentenced was

committed while he was engaged in the commission of the crime of

robbery;" (3) "the crime for which the Defendant was to be sentenced

A-2

—2———e

was committed for the purpose of avoiding or preventing a lawful

arrest or effecting an escape from custody;" and (4) "the crime for

which this Defendant was to be sentenced was committed in a cold,

calculated, and premeditated manner without any pretense of moral or

legal justification.” In mitigation, the trial judge found and considered

as mitigating circumstances: (1) the Defendant was 19 years old at the

time of the crime; and (2) "Defendant had a difficult childhood,” i.e.,

“Defendant was raised essentially without a father, was hyperactive,

had learning disabilities, and had trouble in school." The Florida

Supreme Court affirmed Herring's convictions and death sentence on

direct appeal.

In April 1985, Herring ¢ led his first Florida Rule of Criminal

Procedure 3.850 motion for post-conviction relief. The state trial court

denied the motion and the Florida Supreme Court affirmed. In March

1987, Herring filed a petition in the Florida Supreme Court for a writ

of habeas corpus. The Florida Supreme Court denied relief. Herring

then filed a petition in federal court under 28 U.S.C. § 2254 for a writ

of habeas corpus. The district court dismissed the petition without

prejudice due to Herring's failure to exhaust his state court remedies.

In 1989, Herring filed a second Rule 3.850 motion, ciaiming, inter

alia, that his death sentence should be vacated under Rogers v. State,

511 So. 2d 526, 533 (Fla. 1987), which declared the premeditation

aggravator inapplicable to cases like Herring's. The state trial court

denied relief under Rogers. The court did, however, grant Herring

leave to amend his motion to add a claim that Pearl operated under an

impermissible conflict of interest in serving both as Herring's trial

counsel and as a special deputy sheriff. The trial court denied the

amended motion. The Florida Supreme Court held the premeditation

aggravating factor should not have been applied, but affirmed without

granting a new sentencing hearing. On the conflict-of-interest claim,

the court remanded for an evidentiary hearing.

On remand, Herring's conflict-of-interest claim was consolidated for

hearing with similar claims raised by other defendants who had been

represented by Pearl. The state trial judge denied relief. The Florida

Supreme Court remanded for individual hearings on the appealed

cases, including Herring's. ‘The state trial court held a second hearing

A-3

and again denied Herring's conflict-of-interest claim. The Florida

Supreme Court affirmed.

Herring filed a § 2254 petition for a writ of habeas corpus in federal

district court. The district court denied relief and denied a COA. This ‘

Court granted a COA on three issues:

(1) Whether the Florida Supreme Court acted

contrary to Clemons v. Mississippi, 494 U.S. 738, 110 F

S. Ct. 1441, 108 L. Ed. 2d 725 (1990) and violated

the Eighth and Fourteenth Amendments in upholding

Herring's sentence despite the elimination of the

heightened premeditation aggravating circumstance;

(2) Whether Herring was deprived of the effective

assistance of counsel at the sentencing phase of his A

criminal trial; and

(3) Whether, in evaluating Howard Pearl's conflict of

interest under the Sixth Amendment, the state courts

unreasonably applied Cuyler v. Sullivan, 446 U.S.

335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) to the

facts of Herring's case.

Il. DISCUSSION

A. Standard of Review Under 28 U.S.C. § 2254

Our habeas review of a state court's rulings is restricted by § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Section 2254(d) provides:

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the

merits in State court proceedings unless the

adjudication of the claim —

A-4

(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). “Under the ‘contrary to’ clause, a federal habeas

court may grant the writ if the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law

or if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts." Williams v.

Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d

389 (2000). A state court's decision involves an "unreasonable

application” of clearly established federal law under § 2254(d)(1) if

its application is objectively unreasonable. Parker y. Head, 244 F.3d

831, 835 (11th Cir. 2001). "An unreasonable application of federal

law is different from an incorrect or erroneous application of federal

law.” Williams, 529 U.S. at 412, 120 S. Ct. at 1523.

A federal court's review is further restricted by 28 U.S.C. § 2254(e),

which provides that "a determination of a factual issue made by a State

court shall be presumed to be correct" and the petitioner "shall have

the burden of rebutting the presumption of correctness by clear and

convincing evidence." 28 U.S.C. § 2254(e)(1).

B. Claim under Clemons v. Mississippi

Under the Supreme Court's ruling in Clemons vy. Mississippi, 494 U.S.

738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990), HN4when a state

appellate court determines a death sentence is based on an invalid or

improperly defined aggravating factor, that court may reweigh the

aggravating and mitigating evidence, conclude the error was harmless,

A-5

or remand for a new sentencing. Jd. at 741, 754, 110 S. Ct. at 1444,

1451.

Herring contends that when the Florida Supreme Court struck the

heightened premeditation aggravating circumstance but nevertheless

affirmed his death sentence, it failed to conduct any of the three

analyses set out as permissible in Clemons. In response, the State

argues: (1) Herring's claim is procedurally barred; (2) Herring's claim

alleges nothing more than an error of state law and therefore is not

"cognizable in federal habeas corpus; and (3) Herring received all the

process he was due. The district court rejected Herring's claim on two

bases, one of which was that the claim was procedurally barred.

Herring did not present any arguments pertaining to procedural bar in

his initial brief. In his reply brief, however, Herring argues his

Clemons claim is not procedurally barred because he did present his

Clemons argument to the Florida Supreme Court during proceedings

on his second 3.850 motion and the Florida Supreme Court reached

the merits of his claim. FN1 As we repeatedly have admonished,

"arguments raised for the first time in a reply brief are not properly

before a reviewing court." United States v. Coy, 19 F.3d 629, 632 n.7

(11th Cir. 1994) (citation omitted); see also United States v. Whitesell,

314 F.3d 1251, 1256 (11th Cir. 2002) (Court need not address issue

raised for first time in reply brief), cert. denied, 539 U.S. 951, 156 L.

Ed. 2d 643, 123 S. Ct. 2628 (2003); United States v. Dicter, 198 F.3d

1284, 1289 (11th Cir. 1999) (issue raised for first time in reply brief

waived); United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir.

1996) (declining to consider arguments raised for the first time in a

reply brief). Although Herring's failure to present his procedural bar

argument in his initial brief is determinative, we nevertheless briefly

discuss procedural bar and the arguments Herring raises in his reply

brief.

FN1 We note Herring does not argue in the

alternative that there is cause and prejudice excusing

his procedural default or that, if raised for the first

time in state court now, it would not be barred under

state law procedural bar principles.

"A state habeas corpus petitioner who fails to raise his federal claims

properly in state court is procedurally barred from pursuing the same

claims in federal court absent a showing of cause for and actual

prejudice from the default." Bailey v. Nagle, 172 F.3d 1299, 1302

(11th Cir. 1999) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.

Ct. 2497, 2506-07, 53 L. Ed. 2d 594 (1977)). This procedural default

arises in two situations: (1) where the state court itself correctly

applies state law procedural bar principles to conclude a federal claim

is barred; and (2) where a claim was never raised in state court, and it

is clear the unexhausted claim would now be barred under state law

procedural bar principles. Jd. at 1302-03 (citations omitted). The

State's argument is that Herring's Clemons claim falls within the

second category. We agree.

Herring challenged the application of the cold, calculated, and

premeditated aggravating factor in his direct appeal.

Herring again challenged the application of the aggravating factor in

his initial brief appealing the denial of his second Rule 3.850 motion,

and argued a new sentencing hearing should be conducted. In his reply

brief to the Florida Supreme Court, Herring argued the jury's improper

consideration of the heightened aggravating factor could not be

harmless beyond a reasonable doubt. Herring further stated:

Indeed, because "the procedure to be followed by the

trial judges and juries is not a mere counting process

of X number of aggravating circumstances and Y

number of mitigating circumstances," Elledge, 346

So. 2d at 1003, this Court has consistently ordered

new sentencing hearings in similar cases. . . . The

result here should be no different. Cf Clemons v.

Mississippi, 494 U.S. 738, 108 L. Ed. 2d 725, 110S.

Ct. 1441, 58 U.S.L.W. 4395, 4399-4400 & n.5 (Mar.

28, 1990) (failure to remand to a sentencing jury

violates the Constitution "if the decision is made

arbitrarily"). .

The Florida Supreme Court struck the challenged aggravating factor,

but affirmed Herring's death sentence stating: ;

A-7

; aaa ist 0

While the cold, calculated, and premeditated

aggravating factor no longer applies to the

circumstances in Herring, we find that this is not a

change that requires a new sentencing hearing in this

case. None of the facts and circumstances that were

before the jury regarding how Herring committed the

murder are changed. If the aggravating circumstance

of a ‘conviction of a prior crime of violence’ had been

eliminated, that would have changed the facts and

circumstances before the jury.

The evidence before the jury established that Herring

shot the clerk once in the head and again after the

clerk fell to the floor and that the second shot was to

prevent the clerk from being a witness against him. |

Given the other aggravating and mitigating factors

that went into the weighing process in the sentencing

phase of this case, we find that the result of the

weighing process would not have been different had

this aggravating circumstance not been articulated as

a factor in the sentencing. We find that the

elimination of this factor, under the circumstances of

this case, does not compromise the weighing process

of either the judge or jury.

Herring v. State, 580 So. 2d 135, 138 (Fla. 1991) (citations omitted).

In his motion for a rehearing, Herring made three arguments as to why

the Florida Supreme Court's decision was incorrect. Herring first

argued the court committed constitutional error in that it failed to

apply its "long-standing rule" of remanding for a new sentencing

hearing when it strikes one or more aggravating circumstances relied

on at sentencing and mitigating circumstances are present. Herring

cited Clemons in this section of his motion, including again a

parenthetical stating that "failure to remand to a sentencing jury

violates the Constitution 'if the decision is made arbitrarily." In its ‘

response, the State pointed out that in Clemons, the Supreme Court ;

"established that state courts may conduct a harmless error analysis if

an aggravating circumstance is stricken." Herring acknowledged as

A-8

a Se

much in his second argument — that the Florida Supreme Court's

"finding of harmless error [could not] be squared with the facts of the

case." FN2 Importantly, although Herring challenged the court's

finding of harmless error, he did not assert the court failed to engage

in harmless error analysis. Indeed, Herring asserted the Florida

Supreme Court had engaged in harmless error review, but argued the

court erred in its finding of harmlessness. Herring's third argument

was that the court's opinion "appears to announce a new rule" that the

erroneous application of a statutory aggravator may be deemed

harmless where elimination of the circumstance does not alter the facts

and circumstances regarding how the defendant committed the

murder, and thereby "calls into question the constitutionality, as

applied, of Florida's capital sentencing scheme." FN3

FN2 Herring cited Clemons in this section of his

motion as support for his contention that "the

circumstances surrounding both Herring's crime and

his sentencing hearing make clear that the erroneous

application of the heightened premeditation

aggravating circumstance cannot be deemed harmless

beyond a reasonable doubt."

FN3 With respect to this final point, Herring

contended:

In a case involving substantial mitigation, it is simply

impossible to know how the sentencers would have

performed the weighty, yet delicate, task of balancing

the aggravating and mitigating factors in the absence

of one of the aggravating factors. To suggest that the -

presence or absence of one of the aggravating factors

in such a case makes no difference in the weighing

process threatens to return the Florida statutory

scheme to the "standardless discretion" condemned in

Furman.

After reviewing Herring's state court filings, we conclude that,

although Herring made many arguments pertaining to the cold,

A-9

calculated, and premeditated aggravator, he did not preserve the

argument he now makes -- that the Florida Supreme Court erred in

affirming his sentence after stnking the factor without performing the

analysis set out by the United States Supreme Court in Clemons -- and

the Florida Supreme Court did not consider such a claim.

In summary, we affirm the district court's denial of Herring's claim.

The district court found Herring's claim to be procedurally barred.

Herring failed to argue the procedural bar issue in his initial brief.

Even if the arguments set out in Herring's reply brief had properly

been presented in his initial brief, we would have rejected them. FN4

FN4 For the first time, in a supplemental letter brief,

Herring asserts additional procedural bar arguments.

"Parties cannot properly raise new issues at

supplemental briefing. United States v. Nealy, 232

F.3d 825, 830 (11th Cir. 2000) (citation omitted).

C. Claim of Ineffective Assistance of Counsel at Penalty Phase

Herring next claims he received ineffective assistance of counsel at the

penalty phase of his trial. Peyton Quarles represented Herrring at the

penalty phase. Herring makes a number of allegations of

ineffectiveness. Neither the state courts nor the district court held an

evidentiary hearing on Appellant's claims.

A petitioner is entitled to relief based on ineffective assistance of

counsel when he establishes (1) his counsel's performance fell below

an objective standard of reasonableness, and (2) "there is a reasonable

probability that, but for counsel's errors and omissions, the result of

the proceedings would have been different." Parker v. Head, 244 F.3d

831, 840 (11th Cir. 2001) (citing Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). Both

prongs are mixed questions of law and fact. Mills v. Singletary, 161

F.3d 1273, 1285 n.15 (11th Cir. 1998) (citation omitted).

1. Quarles’ failure to present mitigating evidence in his possession

and failure to conduct a reasonable investigation

A-10

During the penalty phase, Herring's mother, Dorothy Meyers, was the

only witness to testify in mitigation. Herring contends Quarles should

have done more‘in mitigation. Specifically, Herring contends: (1)

Quarles was ineffective in that he failed to investigate and present

other readily available mitigating evidence pertaining to Herring's

mental condition, background, and character; and (2) Quarles was

ineffective in that he failed to present mitigating evidence in his

possession at the time of trial. Underlying Herring's

failure-to-investigate claim is the premise that "counsel has a duty to

make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary." Wiggins v. Smith, 539

U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003)

(quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066); see also

Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988) ("An

attorney has a duty to conduct a reasonable investi gation, including an

investigation of the defendant's background, for possible mitigating

evidence.") (citing Thompson v. Wainwright, 787 F.2d 1447, 1451

(11th Cir. 1986)).

a. State Court Decisions

The state trial court held that Herring did not satisfy either prong of

the Strickland ineffectiveness inquiry. That court concluded:

5. The real nub of Defendant's motion is the claim of

ineffective trial counsel. Despite the standards set

forth in Knight and Strickland it is very difficult to go

back and determine whether trial counsel's actions or

inactions amounted to ineffective assistance of

counsel. The Court will attempt to deal with the

allegations of ineffectiveness and analyze them in

light of Knight and Strickland.

A. In Paragraph "85" of the 3.850 the Defendant

alleges there were reports (see Defendant's exhibits

"3" and "4") that the Defendant had serious mental

and emotional problems: The Defendant now

complains these reports should have been introduced.

First it should be noted that at least one of the reports

A-11

was a result of an interview done when the Defendant

was 13 years old. Secondly, the defense did establish

learning disabilities and psychological problems

through the testimony of the Defendant's mother.

Thirdly, one of the reports indicates the mother, who

was a defense witness and represented to be a

concerned mother, was not keeping the child's

appointments with the counselor. Lastly, the reports

indicate the Defendant was of dull normal

intelligence. Taking this all into consideration this

Court does not find the failure to introduce these

reports was a professional deficiency.

B. In Paragraph "86" of the 3.850 the defense claims

trial counsel failed to adequately present other readily

available mitigation evidence. This is perhaps the

most difficult assertion to analyze. Here more than

any other area there is tendency to second guess. In |

every case that is lost counsel may go back, with the

advantage of hindsight, and say this or that should or

could have been done.

The defense had the Defendant's mother testify

during the sentencing phase. She did establish the

Defendant's home life was not good; his parents were

separated; he was hyperactive with a low IQ and a

learning disability; he had psychological problems;

that his mother loved Ted. The psychological reports

would have been cumulative to the mother's

testimony. It also must be stressed that the trial court

did list and consider these matters as mitigating

factors.

As to the information set forth in exhibits "7" and "8"

the Court questions the importance of the information

from the Defendant's former teachers. Obviously \

much time had passed since they had contact with the

Defendant. Their testimony was of doubtful value.

A-12

Perhaps the defense should have had the Defendant's

other relatives testify on his behalf. While to a large

degree it may have been cumulative to that of the

mother, perhaps it may in someway [sic] have helped

the Defendant. But this Court cannot conclude that

trial counsel was deficient in presenting the mother

alone. It must be remembered that the area of who

trial counse! selects to testify is fraught with peril.

Even the mother, who was an effective defense

witness, did admit her son was involved in drug

related problems in New York. So trial counsel is

caught in a dilemma. He must try to put on mitigating

evidence yet not let the State have an opportunity to

further damage the Defendant either by cross or

rebuttal. This is especially true where the Defendant

was charged with several other armed robberies and

apparently was having drug related problems in New

York City. All in all the Court finds trial counsel was

not deficient in only presenting the mother's

testimony. This is a matter of trial strategy and should

not be second guessed.

6. This Court must view trial counsel's alleged errors

and omissions in light of the case as a whole. It was

a difficult case from the defense standpoint. The

Defendant confessed to the crime.

Efforts to suppress the confession failed. The

Defendant not only initially gave conflicting stories

to police but perhaps most damaging of all he told the

jury the preposterous story of how a second robber

"beat him to the punch"; robbed and shot the clerk.

Frankly, this preposterous story doomed the

Defendant not only as to a conviction but as to

sentence as well. There was little the defense could

do to save the Defendant after that.

A-13

Additionally, the aggravating factors in this case

strongly outweighed the mitigating factors. There

were four aggravating FN5 and only two mitigating

factors. The mitigating factor of age was not strong.

The Defendant was at the point where his age was not

that much of a consideration. Other non-statutory

mitigating factors were in fact established by the

defense. They were considered by the jury and the

court. These mitigating factors were not particularly

significant. This Court finds that even if the

non-statutory mitigating factors were bolstered by

teacher's statements, comments of relatives, and

poems of the Defendant, the result would be no

different.

7. The Court concludes that the Knight/Strickland

tests are not met. The trial defense was not deficient,

nor did it prejudice the Defendant. The Defendant

received a fair trial and a fair sentence hearing.

The Supreme Court of Florida summarily affirmed, stating:

In his next point, Herring contends that an evidentiary

hearing was necessary to decide his

ineffective-assistance-of-counsel claims. The trial

judge, in an extensive order, fully explained why

each of the ineffective-assistance-of-counsel claims

did not meet the test set forth in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984) and Knight v. State, 394 So. 2d 997

(Fla. 1981). We agree with the trial judge's findings

and commend him for his detailed explanation.

Herring v. State, 501 So. 2d 1279, 1280 (Fla. 1986).

FNS As explained in Section I.B., one of these

aggravating factors was stricken by the Florida

Supreme Court subsequent to the state trial court's

3.850 decision.

A-14

As set out in Section IIA. above, our review of state court decisions

is very deferential under § 2254, as amended by AEDPA. "AEDPA

modified a federal habeas court's role in reviewing state prisoner

applications in order to prevent federal habeas retrials and to ensure

that state-court convictions are given effect to the extent possible

under law.” Parker v. Sec'y for the Dep't of Corr., 331 F.3d 764, 768

(11th Cir.) (citation and internal quotation marks omitted), reh 'g and

reh'g en banc denied, 82 Fed. Appx. 224 (11th Cir. 2003), cert.

denied, 540 U.S. 1222, 158 L. Ed. 2d 159, 124 S. Ct. 1513 (2004). We

may grant a § 2254 petition as to a claim adjudicated on the merits in

State court only if adjudication of the claim "(1) resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law . . .; 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). To be entitled to deferential review under 28 U.S.C. § 2254,

it is not necessary for the state court to explain its decision. Even a

summary, unexplicated rejection of a federal claim qualifies as an

adjudication entitled to deference under § 2254(d). Parker, 331 F.3d

at 775-76; Wnght v. Sec'y for the Dep't of Corr., 278 F.3d 1245,

1253-55 (11th Cir.), reh'g and reh'g en banc denied, 34 Fed. Appx.

393 (11th Cir. 2002), cert. denied, 538 U.S. 906, 155 L. Ed. 2d 225,

123 S. Ct. 1511 (2003). Moreover, factual findings made by the state

courts are presumed to be correct; a petitioner can rebut this

presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).

The state trial court judge who issued a ruling on Herring's

ineffective-assistance-of-counsel claim is the same judge who presided

at trial. The state trial judge was, therefore, intimately aware of

everything that happened at, and was involved in, the trial. In an

attempt to obtain similar familiarity, we have reviewed the entire

record. It is evident from our review that the state court rulings were

eminently reasonable and were not contrary to clearly established

federal law.

We turn first to Herring's contention that Quarles did not perform a

meaningful investigation into his mental condition. The state court

FN6 concluded Herring established neither deficient performance nor

prejudice. The record supports the state court conclusions.

FN6 The Flonda Supreme Court expressly stated it

agreed with the trial judge's findings. We use the term

"state court” in this discussion to refer to the state

trial court and the Florida Supreme Court.

Contrary to Herring's contention, it is evident from the record that

Quarles did investigate Herring's mental condition. Prior to trial, the

defense had Herring evaluated by Dr. William Friedenberg, a clinical

psychologist. The State subsequently took Dr. Friedenberg's

deposition. In that deposition, Dr. Friedenberg said he had been

appointed to evaluate Herring and had considered Herring's "ability to

testify about the kind of charges against him and the events as they

were reported by others.” Dr. Friedenberg testified that, to aid in his

evaluation of Herring, he had a 1974 St. Luke's Hospital evaluation of

Herring; a report evaluating Herring's oral reading and written

language; a copy of the autopsy request form from this case; and a

supplemental report by the Daytona Beach Police Department. Dr.

Friedenberg also had a closed 1980-81 HRC (Human Resources

Center) file, which included a psychological evaluation dated October

30, 1980, reports from psychiatrists, a report on an EEG, and some

notes.

In conducting his evaluation, Dr. Friedenberg saw Herring for about

three hours. He stated Herring was anxious, but not abnormally so

considering the circumstances. Also, Herring became increasingly

animated in saying he was innocent and had been set up. Herring

denied being at the murder scene.

Dr. Friedenberg administered some tests, but he did not perform an IQ

test on Herring; rather, he relied on a 1974 test showing an IQ of 81

and a 1980 test showing an IQ of 82. Dr. Friedenberg said the

consistency of the two results led him to believe it was not necessary

to readminister an IQ test.

Dr. Friedenberg stated Herring was of dull normal intelligence, but

that “would be significantly above what would be considered

A-16

borderline, retarded or retarded range and includes approximately

fifteen percent of the population.” He further stated: "One has to

understand that Mr. Herring has a rather limited formal education and

there are many stadies to show that that can affect 1.Q. tests such as

this by lowering the actua) score below what the potential would be."

Dr. Friedenberg opined that Herring's JQ should not affect his ability

to be a law abiding citizen and would only minimally interfere with

Herring's ability to deal with the legal process.

Dr. Friedenberg's mental health conclusions from his evaluation of

Herring were as follows:

He appeared to be most likely a person who would be

described as an antisocial personality type who may

have some additional problems but in the whole

seems to be responding with some anxiety to the

situation of having been caught and charged with a

crime which holds a rather strong penalty. I did not

find him unable to stand trial nor did I have any

evidence to show that he was legally not sane at the

time of the commission of the alleged crime.

Regarding the diagnosis of Herring as having an antisocial personality,

Dr. Friedenberg stated antisocial personality is a recognized form of

mental illness that, at the time of the deposition, was not very

amenable to treatment. Dr. Friedenberg described the antisocial

personality as guiltless, highly aggressive, impulsive, highly sensitive

to social criticism, untruthful when it serves the individual's purposes,

unable to profit from experience, and having its own sense of morality

(coinciding very little with society's sense of morality). Dr.

Friedenberg further stated Herring did "not suffer from psychosis or

anything that could be considered a gross disturbance of emotional

functioning." As for Herring's remorse, Dr. Friedenberg stated: "I

think his remorse as far as the one crime that he did admit to was

primarily based on the fact that he was caught."

The defense decided not to use Dr. Friedenberg at trial. The State,

however, understandably tried to present testimony from Dr.

Friedenberg. The State's proffer was that Dr. Friedenberg had made

A-17

the following determination: "That the Defendant's personality and

character is antisocial. And that he has sufficient and normal

intelligence to understand and appreciate his criminal conduct and so

forth, in this particular case." The defense objected to the admission

of testmony from Dr. Friedenberg, contending, inter alia, that the

State's use of his testimony was barred under the rule pursuant to

which Dr. Friedenberg's evaluation had been obtained by the defense.

The trial judge concluded Dr. Friedenberg could not be used as a

prosecution witness.

The fact and nature of Dr. Friedenberg's evaluation support the

following conclusions. First, Herring's allegation that counsel did not

perform an investigation is unsupported. In his brief, Herring

- contends:

Quarles did not follow up on [the St. Luke's] reports

[in his possession] to understand what they meant and

did not obtain the testimony of a mental health

expert, who could have competently explained the

meaning of an I.Q. test to the jury and could have

testified about Herring's mental retardation and brain

damage.

This contention simply is not supported by the record. Quarles did

consult an expert. Second, the record supports an inference that the

case Quarles put on was the product of a tactical decision made after

investigation. Quarles knew the substance of Dr. Friedenberg's

conclusions and decided to keep the evaluation and Dr. Friedenberg's

opinions out of evidence—in fact, he fought to keep Dr. Friedenberg

from testifying before the jury. Finally, there was no prejudice to

Herring due to Quarles’ conduct.

We consider next Herring's claim that his counsel should have

investigated his background and presented additional character

witnesses. In rejecting this claim, the state trial court stated much of

the testimony proffered by Herring was dated and of doubtful value.

The state trial court concluded that, given Herring's history of drug

involvement and other robberies, as well as counsel's dilemma of

putting on mitigating evidence without giving the State an opportunity

A-18

erate Geo

to further.damage the defendant, Quarles' performance was not

deficient in presenting the testimony of Herring's mother only. The

state trial court further concluded Herring failed to establish prejudice.

The state court conclusions have abundant support in the record.

The information as to which at least two of the proffered character

witnesses could have testified would have been somewhat dated.

Moreover, although one conviction for robbery was admitted into

evidence, there were a number of convenience store robberies as to

which evidence was not admitted. The other convenience store

robberies were discussed by Herring during his taped statements to

police. The trial record reflects, however, that other crimes evidence

was redacted from the taped statements played for the jury during the

guilt phase. In fact, the state trial court judge excluded evidence of

other robberies (aside from the one conviction used as a statutory

aggravating factor) from the penalty phase due to defense counsel's

agreement not to present mitigating testimony as to Herring's s lack of

a significant history of prior criminal activity.

As for Herring's drug involvement, the record shows Herring himself

made statements to a correctional officer regarding his drug activities

in New York. Herring admitted to the correctional officer he had been

selling drugs and had been cutting the drugs to make more money.

FN7 :

FN7 The correctional officer was proffered by the

State as a witness to impeach Meyers, but the State

withdrew him when it concluded his testimony would

not "impeach{] or comment[] on the credibility of a

prior witness."

We turn next to Herring's claim that Quarles was ineffective in failing

to introduce reports, including reports from St. Luke's Hospital,

regarding Herring's mental condition that were in his possession at the

time of trial. The state trial court concluded the reports were not

uniformly favorable to Herring, the defense did establish Herring's

learning and psychological problems through his mother, and Quarles'

failure to introduce the reports into evidence was not a professional

deficiency. The state trial court further held Herring failed to establish

A-19

prejudice. The state court rulings are supported by the record. The

reports were dated and were not uniformly favorable to Herring's case.

The state court resolution of Herring's claim is further supported by

the fact and nature of Dr. Friedenberg's evaluation of Herring.

Upon review of the record before the state courts, the state court

resolution of Herring's claims was not contrary to, and did not involve

an unreasonable application of, clearly established federal Jaw, and did

not result in a decision that was based on an unreasonable

determination of the facts.

b. District Court Decision

The district court denied Herring's ineffective-assistance-of-counsel

claim, concluding the state court did not reach a decision that was

"contrary to, or [that] involved an unreasonable application of, clearly

established Federal law . . . [and was not] based on an unreasonable

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

State court proceeding." The district court further stated:

Petitioner argues that counsel failed to present any

evidence in mitigation and that he should have

obtained documentary evidence regarding Petitioner's

mental disability and serious emotional problems.

Petitioner identifies a report detailing Petitioner's

psychological and emotional problems while at the

Wiltwyck School and character witnesses who would

have testified on his behalf.

As to issue one, the trial court denied it based on the

following: 1) at least one of the reports resulted from

an interview done when Petitioner was 13 years old;

2) Petitioner's counsel was able to establish learning

disabilities and psychological problems through the

testimony of Petitioner's mother; 3) one of the reports

established that Petitioner's mother did not keep

Petitioner's appointments with the counselor; and 4)

the reports reflect that Petitioner was of dull normal

intelligence.

A-20

ee ee eS ee ee

The record supports the trial court's findings, and the

Court agrees that Petitioner has not shown that his

counsel's performance was deficient or that he

sustained prejudice. The Court notes that one of the

reports resulted from an evaluation performed when

Petitioner was 12 years old and that another report

described Petitioner as having "intellectual

functioning in the dull normal range." The latter

report was based on an evaluation done on January

21, 1974, and found Petitioner to have full scale IQ of

81. Moreover, Petitioner's mother testified at

sentencing that Petitioner was a "hyperactive child

diagnosed by the doctor, with very low IQ of 80,

learning disability." She also testified that Petitioner

was treated for psychological problems as a child.

Petitioner argues that counsel failed to introduce two

psychological reports that diagnosed him as suffering

from retardation and other organic neurological

disorders. Petitioner identifies two reports from St.

Luke's Hospital in New York City, which concern

evaluations performed on Petitioner when he was 12

and 13 years old.

The trial court addressed this issue and foun: it to be

without merit. The trial court noted that counsel did

present testimony from Petitioner's mother, which

revealed that his home-life was poor; that his parents

divorced when he was four years old; that he had

psychological problems; that he was hyperactive with

a low IQ and a learning disability; and that she loved

him. The trial court found that the reports would have

been cumulative to the mother's testimony.

The record supports the trial court's findings, and the

Court agrees that Petitioner has not shown that his

counsel's performance was deficient or that he

A-21

sustained prejudice. The Court notes that Petitioner's

mother specifically testified at the penalty phase

hearing as to Petitioner's low IQ and learning

disabilities and as to Petitioner's poor home-life. The

report would have been cumulative to her testimony.

The Court also notes that one of the reports actually

suggests that Petitioner had normal intellectual

abilities: "There is also a discrepancy between Ted's

intellectual abilities, albeit at a Dull-Normal range,

and his actual achievement."

(citations omitted).

Although the district court did not hold a hearing on Herring's

ineffective-assistance-of-counsel claim, such treatment of a claim is

appropriate where, as here, "a hearing would not assist in the

resolution of [petitioner's] claims." Breedlove v. Moore, 279 F.3d 952,

960 (11th Cir.) (citation omitted), reh'g and reh'g en banc denied, 48

Fed. Appx. 329 (1 1th Cir. 2002), cert. denied, 537 U.S. 1204, 154 L.

Ed. 2d 1047, 123 S. Ct. 1278, reh'g denied, 538 U.S. 995, 155 L. Ed.

2d 699, 123 S. Ct. 1825 (2003).

Applying the deferential § 2254 standard of review, the district court

correctly affirmed the state court decisions. As set out in Part I.C.1.a.

above, the state court decisions were supported by the record before

those courts. We further note the district court had before it not only

the record that was before the state courts in resolving these issues, but

also the record of additional post-conviction proceedings in this case.

Nothing in the record of these additional post-conviction proceedings

undermines the state court decisions.

Most notably, the post-conviction record includes a December 1991

deposition of Quarles that was taken by Herring's current counsel

during proceedings on Herring's claim that Pearl had acted at trial

under an impermissible conflict of interest. In his deposition, Quarles

stated his theory originally was to get Herring to plead guilty. He said

__ the trial judge had indicated that if Herring pled guilty, he would

receive a life sentence. (In his own December 1992 deposition, Pearl

testified that he had a similar recollection.) When Herring refused to

\ A-22

plead guilty, Quarles’ tactic was to try to convince the jury that

Herring was young and ignorant.

In terms of investigation, Quarles stated that he talked to Herring

about "possible witnesses, events in his life, relatives." Quarles also

testified that he had Herring examined and “a report was produced."

He testified that he did not know how to get the childhood reports

regarding Herring's mental condition admitted: "I made some attempt

to talk to a doctor or two that had examined him and either ] couldn't

locate them or they had other information or they had other testimony

that was detrimental to call as a witness." When questioned

specifically about a report from St. Luke's Hospital, Quarles further

Stated:

I can't specifically say what I did or if I was able to

locate the doctor. I do know that I attempted to locate

some doctors, could not — was unsuccessful [**39]

as to one or two or one. It seems to me there was

some doctor somewhere, maybe here, that was

definitely going to throw in Mr. Herring despite this

and this and this, Mr. Herring knew exactly what he

was doing and Mr. Herring intended to kill Mr.

Heolzelg [sic].

With respect to investigating and presenting character witnesses,

Quarles stated that, through his discussions with Herring and Meyers,

he concluded there was no one who could attend the trial who might

be a good character witness on Herring's behalf.

Again, the state court rulings were sustainable on the record that was

before the state courts in ruling on Herring's claims. Moreover, the

additional post-conviction record before the district court does nothing

to undermine those rulings. We affirm the district court's denial of

Herring's claims.

2. Quarles' failure to contest the heightened premeditation

aggravating circumstance

A-23

Herring next contends Quarles’ performance was deficient in that he

did not object to the applicability of the heightened premeditation

aggravating circumstance. Counsel's performance cannot be deemed

to have been deficient because, at the time of Appellant's sentencing,

the aggravator was interpreted to cover Appellant's case. In fact, the

Flonda Supreme Court imitially affirmed the application of the

aggravator to Appellant's case. Moreover, as to the prejudice prong,

the Florida Supreme Court subsequently eliminated the aggravator

from Herring's case, but nevertheless affirmed the death sentence.

3. Quarles' failure to object to the avoidance of arrest jury instruction

Herring contends Quarles was ineffective in that he did not object to

the avoidance of arrest instruction. Herring asserts the trial court's

instruction was erroneous in two respects: (1) the instruction did not

advise the jury that it could find the aggravator only if it concluded

beyond a reasonable doubt that eliminating a witness was the

dominant or sole motive of the killing; and (2) the instruction did not

advise the jury that, under Florida law, the uncorroborated testimony

of a single witness may be insufficient to support a finding of an

aggravator.

The State contends, as the district court concluded, that Herring's

claim is procedurally barred because he never raised it in state court.

Herring did not address the district court's finding of procedural bar in

his initial brief. In his reply bnef, Herring contends he raised the claim

in his first 3.850 Motion at P 94. Again, "arguments raised for the first

time in a reply brief are not properly before a reviewing court." United

States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994) (citation omitted);

see also United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir.

2002), cert. denied, 539 U.S. 951, 156 L. Ed. 2d 643, 123 S. Ct. 2628

(2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999);

United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996).

Although Herring's failure to present argument in his initial brief is

determinative, we nevertheless briefly discuss the procedural bar

argument Herring raises in his reply brief.

In P 94 of his first 3.850 motion, Herring stated:

A-24

As discussed supra at paragraphs 23 through 48, the

cases construing the heightened premeditation and

avoidance of arrest aggravating circumstances

demonstrate quite clearly that neither of these

aggravating circumstances was applicable to this

case. Despite the substantial body of case law

favorable to petitioner's position, his counsel never

contested the applicability of the heightened

premeditation aggravating circumstance and made at

most a feeble attempt to rebut the applicability of the

avoidance of arrest aggravating circumstance.

Counsel's failure seriously prejudiced petitioner's

sentencing hearing, thereby undermining the fairness

of the proceeding.

This statement does not amount to an argument that Quarles was

ineffective for not objecting to the avoidance of arrest instruction.

In summary, we reject Herring's claim. The district court found

Herring's claim to be procedurally barred. Herring did not address

procedural bar in his initial brief. Even if he had properly presented

his procedural bar argument, we would have rejected it.

4. Quarles’ failure to object to the cross-examination of Meyers

Herring next argues that, through its cross-examination of his mother,

Dorothy Meyers, the State improperly introduced evidence of a

non-statutory aggravating circumstance. He states: "Although it is

state law that precludes the admission of a non-statutory aggravating

circumstance... . trial counsel's failure to prevent the admission of this

evidence constitutes ineffective assistance of counsel, which is a

constitutional issue." ‘

During the penalty phase of Herring's trial, Quarles presented

testimony from Meyers that Herring at some point had moved to

Florida:

Q. When did Ted leave your home?

A. Do you mean for Florida or coming down here or

Q. For Florida?

A. Or for the different schools I put him in?

Q. Florida.

A. About a year and a half or almost close to two

years.

On cross-examination, the State conducted the following questioning

of Meyers:

Q. Mrs. Myers, have you ever had an occasion to talk

with a Mr. James B. Brock?

A. I might have. I don't recall the name.

Q. He's a Correctional Probation officer in the State

of Florida. Does that help?

A. I believe so.

Q. Did you tell Mr. Brock that the reason you sent

your son to Florida, was because your son had

become involved in some drug dealings in New York

City, and it was necessary for him to get away from

New York City quickly, that the word was out that

people involved, who were supplying your son with

drugs, were out to get him?

A. I didn't say [Pause] of those words, no. I said that

he went to the police and testified about some drugs.

I don't know what he might have put down there.

Q. You never told anybody the reason he left New

York was because he was involved —

A-26

A. Well, his life was in danger because, if he would

testify against the drug dealers, his life was in danger.

Q. Did he ever testify?

A. No. Because I sent him here.

Q. But, it is your testimony that you indicated to the

correctional officer that this involved testimony?

A. Well, let's put it this way. I didn't know if—It never

got to trial. He went to the police and informed the

police about it.

Q. Did you tell that to the correctional officer?

A. I might have.

Q. Is it possible that you didn't?

A. I really don't remember.

Q. Do you recall telling the correctional officer, Mr.

Brock, that your son got involved over his head with

drug suppliers and they were blaming him for the

missing drugs?

A. I don't remember.

Herring contends this cross-examination was improper and Quarles

was ineffective in that he failed to object to it.

In rejecting Herring's claim, the state court

concluded:

Yet the door was opened to this cross because on

direct the mother testified she sent him to Florida

about two years ago. The State had the right and duty

to ask why he was sent to Florida. A defense

A-27

objection to this line of questioning would have been

overruled.

The Florida Supreme Court agreed with the trial court's findings and

affirmed its decision. The district court agreed, holding Quarles'

representation was not deficient and Herring had not shown prejudice.

The Florida Supreme Court already has told us how the issues would

have been resolved under Florida state law had Quarles done what

Herring argues he should have done — objected to the State's

cross-examination of Meyers. It is a "fundamental principle that state

courts are the final arbiters of state law, and federal habeas courts

should not second-guess them on such matiers." Agan v. Vaughn, 119

F.3d 1538, 1549 (11th Cir. 1997) (citations omitted). Accordingly,

with regard to this claim, we hold Herring cannot establish either

deficient performance by Quarles or prejudice. FN8 We therefore

reject Herring's argument that Quarles was ineffective in failing to

object to the State's cross-examination of Meyers.

FN8 Although we will grant relief if application of a

state law violates a specific federal constitutional

right or if a state trial judge's erroneous admission of

evidence makes a petitioner's trial "so fundamentally

unfair that the conviction was obtained in violation of

the due process clause of the fourteenth amendment,"

Thigpen v. Thigpen, 926 F.2d 1003, 1012 (11th Cir.

1991) (citations omitted), neither circumstance is

present in this case.

D. Conflict of Interest

The final issue before the Court is Herring's contention that, at the

time of trial, Howard Pearl had an impermissible conflict of interest

due to the fact that he held the status of special deputy sheriff so he

could carry a firearm. In his brief, Herring contends Pearl's "need to

carry a concealed weapon, dependent as it was upon maintaining the

favor of law enforcement in general and the Marion County Sheriff in

particular, who could revoke that privilege at will, is precisely the type

of personal interest that may create a conflict as contemplated by the

A-28

Sixth Amendment." Herring argues that, as a result of this conflict,

Pear] failed to contest the credibility of the law enforcement officers,

in fact bolstered their credibility during closing argument, and chose

an unreasonable trial strategy that did not require him to challenge the

officers. The state court held hearings on this issue and denied

Herring's claim on the merits.

After conducting an evidentiary hearing, the state trial judge made the

following findings:

Howard Pearl applied to become a special deputy

sheriff in Marion County in 1970. He sought to

obtain this status in order to have the authority to

carry a concealed firearm throughout the State of

Florida "for protection of self and family." The

sheriff of Marion County in 1970, Doug Willis,

apparently granted Mr. Pearl the status of special

deputy sheriff for the purposes of carrying a

concealed firearm. .. . Sheriff Moreland testified that

he continued Mr. Pearl's status as a professional

courtesy and that this was a common practice at that

time to continue the status of prominent members of

the community.

Although Mr. Pearl was required to maintain liability

insurance by the Marion County Sheriff's Department

through the Florida Sheriff's Self-Insurance Fund, he

had no criminal law enforcement authority or duties

and was considered as an unpaid medium hazard

special deputy sheriff... .

Despite the fact that Mr. Pearl's identification card

issued by the Marion County Sheriff's Department

stated that he was "a regularly constituted deputy

sheriff," this Court finds that the testimony of Mr.

Pearl and Sheriff Moreland, at the evidentiary

hearing, clearly shows that Mr. Pearl's status was an

honorary appointment. Specifically, Mr. Pearl (1) was

never certified as a law enforcement officer; (2) never

A-29

received any compensation from or executed any

employee tax forms from the Marion County Sheriff's

Department; (3) received no law enforcement training

from the Marion County Sheriff's Department; (4)

was never issued a uniform, vehicle or any other

equipment from the Marion County Sheriff's

Department; (5) never made and never [was) given

the authority to make any arrests, stops or any other

duties as a deputy sheriff of the Marion County

Sheriff's Department; (6) never reported to any roll

calls at the Marion County Sheriff's Department; (7)

was never on a duty roster for the Marion County

Sheriff's Department; (8) was never copied on any

internal memoranda from the Marion County Sheriff's

Department, other than insurance renewal notices; (9)

never was asked to act in any way for the Marion

County Sheriff's Department; and (10) never held

himself out as a regularly constituted deputy sheriff

of the Marion County Sheriff's Department. In fact,

Sheriff Moreland testified that Mr. Pear!'s status was

"honorary" in nature and was solely for the purposes

of Mr. Pearl being able to carry a concealed firearm.

In addition, James P. Gibson, the Public Defender for

the Seventh Judicial Circuit at present and at the time

of Mr. Pearl's representation of the Defendant,

testified that he knew of Mr. Pearl's status as a special

deputy sheriff and that status was honorary and only

for the purpose of carrying a concealed firearm. .. .

Further, Mr. Gibson testified that Mr. Pearl never

failed to act responsibly to his clients due to this

status and that he never questioned Mr. Pearl's

integrity or ability in representing clients because of

this special deputy status.

Accordingly, this Court finds as a matter of fact that

Mr. Pearl never was and never has been a law

enforcement officer of the Marion County Sheriff's

Department. Essentially, Mr. Pearl was granted a

A-30

concealed firearms permit by the Marion County

Sheriff's Department in the same manner that many

other individuals received during that time period.

Contrary to defense counsels’ assertions, this Court

determines that Mr. Pearl had no actual or apparent

authority to act as "a regularly constituted deputy

sheriff" for the Marion County Sheriff's Department

because at no time did he indicate to anyone that he

possessed anything other than a "gun toter’s permit"

as a result of his special deputy status. . . .

Defense counsel interpreted Mr. Pearl's alleged

ineffective cross-examinations and alleged bolstering

of law enforcement officers as the adverse effect of

his conflict of interest. However, defense counsel

presented no evidence or testimony that demonstrated

that Mr. Pearl was actively representing conflicting

interests. Therefore, this Court finds that the

Defendant and his counsel failed to demonstrate that

any actual conflict of interest existed between Mr.

Pear] and the Defendant resulting from Mr. Pearl's

special deputy status.

Herring v. State, 730 So. 2d 1264, 1267-68 (Fla. 1998) (alteration in

original )(quoting trial court's decision). The Florida Supreme Court

affirmed, concluding Herring failed to establish that Pearl labored

under an actual conflict of interest, and further stating: "The record

reveals no evidence suggesting that Herring's interests were impaired

or compromised as a result of Pearl's special deputy status." Id. at

1268. Applying the § 2254 standard of review, the district court

denied relief.

In Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333

(1980), the Supreme Court considered a claim of ineffective assistance

of counsel in a case where defense counsel represented three

codefendants without objection. Id. at 337-38, 100 S. Ct. at 1712. The

Court held: "In order to establish a violation of the Sixth Amendment,

a defendant who raised no objection at trial must demonstrate that an

actual conflict of interest adversely affected his lawyer's

A-31

performance." /d. at 348, 100 S. Ct. at 1718. Subsequently, in Mickens

v. Taylor, 535 U.S. 162, 122 S.Ct 1237, 152 L. Ed. 2d 291 (2002), the

Supreme Court rephrased the analysis somewhat and stated an "actual

conflict" is what a defendant must establish under Cuyler to prove a

Sixth Amendment violation. Jd. at 171, 172 n.5, 122 S. Ct. at 1243,

1244 n.5. The Court defined an actual conflict as (1) a conflict of

interest that (2) adversely affected his lawyer's performance. /d.

Herring does not take issue with the individual state court findings so

much as he contends the state courts unreasonably applied Cuyler by

"exclusively relying on Pearl's status as a law enforcement officer, and

refusing to consider evidence of Pearl's [deficient] performance at

trial." Herring argues that under Cuyler the issue of whether there was

a conflict cannot be divorced from the issue of counsel's performance.

The case on which Herring primarily relies is Neelley v- Nagle, 138

F.3d 917 (11th Cir. 1998), abrogation on other grounds recognized by

Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001). The petitioner in

Neelley alleged her attorney suffered from an impermissible conflict

of interest where the attorney signed a book deal with petitioner three

months after trial and the filing of a motion for a new trial. We

concluded that where counsel had competently represented petitioner's

interests and no others at trial, it was "not unreasonable for the

Alabama Court of Criminal Appeals to find only the existence of a

potential conflict of interest, rather than an actual conflict." Jd. at 926.

Contrary to Herring's apparent suggestion, we do not read Neelley as

eliminating the need for there to be a conflict of interest in the first

place. If we were to focus only on the quality of Pearl's trial

performance, our analysis would be bound by Strickland, not Cuyler.

In Quince v. Crosby, 360 F.3d 1259 (11th Cir.), reh'g and reh'g en

banc denied, 104 Fed. Appx. 154 (11th Cir.), cert. denied, _ US.

__, 160 L. Ed. 2d 325, 125 S. Ct. 436 (2004), we considered a

conflict-of-interest claim by another defendant who had been

represented by Pearl. In that case, the state trial court and the district

court made findings very similar to those made in the case before us.

For example, the state trial court made the following findings:

Mr. Pearl never was and never has been a law

enforcement officer with the Marion County Sheriff's

A-32

a en

Department. Mr. Pearl was in essence granted a

concealed weapons permit from the Marion County's

Sheriff's Department as many other individuals were

at that time. Counter to the defense counsel's

assertions, the Court determines from the facts

presented that Mr. Pearl had no manifest or actual

authority to act as a fully constituted Deputy Sheriff

for the Marion County Sheriff's Department because

at no time did he indicate to anyone that he possessed

anything other than a "gun toter's permit" as a result

of his special deputy status.

Id. at 1264 (quoting state trial court findings). Moreover, the district

court in Quince found:

The uncontroverted testimony was that Mr. Pearl

obtained and maintained his special deputy status

solely in order to be able to carry a firearm while

traveling throughout the state. He had no law

enforcement duties, no arrest powers, and no

uniform; he received no law enforcement training, no

compensation, and no internal memoranda from the

Sheriff's Office. The title was merely honorary. Once

state law changed to permit Mr. Pearl to obtain a state

license to carry a concealed firearm, he resigned his

special deputy position. -

Id. (quoting district court findings). We concluded in Quince there

was no conflict. Jd. at 1264. We reach the same conclusion here.

Given the presumption of correctness attached to the state court

factual findings, 28 U.S.C. § 2254(e), and our recent decision in

Quince considering the very same alleged conflict of interest raised in

this case, we cannot say the Florida Supreme Court unreasonably

applied Cuyler v. Sullivan. On these bases, we affirm the district

court's denial of the petition on this ground.

Ill. CONCLUSION

A-33

We hold Herring's claim under Clemons v. Mississippi is without

merit. We further hold Herring's claim that he received ineffective

assistance of counsel at sentencing to be without merit. Finally, we

hold the state court did not unreasonably apply Cuyler v. Sullivan to

Herring's claim that Pearl suffered from an impermissible conflict of

interest due to his status as a special deputy sheriff.

AFFIRMED.

A-34

IN THE UNITED STATES COURT OF APPEAL FOR THE ELEVENTH CIRCUIT

2 FILED

U, S. COURT OF APPEALS'

ELEVENTH, CIRCUIT

No. 03-12598-P

MAR 2 9 2005

THOMAS K. KAHN

CLERK

TED HERRING,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF

CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-AppeRpes.

On Appeal from the United States District Court for the

Middle District of Florida

ON PETITIONS) FOR REHEARING AND PETITIONL) FOR REHEARING EN BANC

(Opinion January 31, 2005, 11th Cir., 2005,__F.3d_).

Before: BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge in regular active service on the Court having

Tequested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure), the

Petition(s) for Rehearing En Bane are DENIED.

ENTERED FOR THE COURT:

ORD-42.

(12/01)

UNITED STATES CIRCUIT JUDGE

- A-35

TED HERRING,

Petitioner,

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

REPLY TO BRIEF IN OPPOSITION

Jeremy G. Epstein

Counsel of Record

Alan S. Goudiss

Daniel Schimmel

Adam S. Hakki

Haycen S. Baker

SHEARMAN & STERLING LLP

599 Lexington Avenue

New York, New York 10022

Jon M. Wilson sea as Hala Leon H. Handley

John R. Hamilton GURNEY & HANDLEY, P.A.

FOLEY & LARDNER 225 East Robinson Street

11} Nerth Orange Avenue Suite 450

Suite 1800 — Orlando, Florida: 32807

P.O. Box 2193 (407) 843-9500

Orlando, Florida 32802

(407) 423-7656

August 11, 2005

Attorneys for Petitioner Ted Herring

TABLE OF CONTENTS

TABLE OF AUTAORITIES 050 ics ce svccevcscecscss

I. THE STATE DOES NOT DISPUTE THAT

THE ELEVENTH CIRCUIT’S DECISION

IS INCONSISTENT WITH CLEMONS

PRP ORy OPCATEIEN 5 ein ciicaas te Cx PSV ASN Cade neyo

II. HERRING WAS DEPRIVED OF THE

EFFECTIVE ASSISTANCE OF COUNSEL

AT THE SENTENCING PHASE OF HIS

Ill. HERRING’S MIRANDA CLAIM WAS

NOT PROCEDURALLY DEFAULTED,

AND THE ELEVENTH CIRCUIT ERRED

IN DECLINING TO HEAR IT................

EER 5p Geka Wiceshus c4asonubccian saat

Page

TABLE OF AUTHORITIES

Cases Page

Clabourne v. Lewis, 64 F.3d 1373

RO Re ic i ioc ta cared ors pws oe wekes 5

Clemons v. Mississippi, 494 U.S. 738 (1990)......... 1, 2, 10

Dretke v. Haley, 541 U.S. 386 (2004) ............. 3

Esslinger v. Davis, 44 F.3d 1515

EEE Ba RE Rpg mony rr ee prep mrer 3

Estelle v. Smith, 451 U.S. 454 (1981).............. 7,8

Gray v. Netherland, 518 U.S. 152 (1996).......... 3

Harries v. Bell, No. 02-6886, 2005 WL 1796224

(Oth Cie: Susly: 2B; POG) oan seas ee as cnkccnse. 5

Hendricks v. Calderon, 70 F.3d 1032

OP Ce PO ais ois hia CA ede wea ene 5

Herring v. Dugger, 528 So. 2d 1176

RI Pa a bic sans hon oe See he bebe e nl is

Herring v. State, 580 So. 2d 135 (Fla. 1991)...... ee

Miller-El v. Dretke, 125 S. Ct. 2317 (2005) ....... 2, 10

Miranda v. Arizona, 384 U.S. 436 (1966) ......... 7, 8,9

Murray v. Carrier, 477 U.S. 478 (1986)........... 9

Peoples v. Campbell, 377 F.3d 1208 (11th Cir.

2004), cert. denied, 125 S. Ct. 2963 (2005) ... 8

Powell v. Collins, 332 F.3d 376 (6th Cir. 2003)... 5, 6

Rompilla v. Beard, 125 S. Ct. 2456 (2005) ........ 3, 5,10

Sochor v. Florida, 504 U.S. 527 (1992) ........... 1, 10

ill

Sochor v. Florida, 580 So. 2d 595 (Fla. 1991) ....

Starr v. Lockhart, 23 F.3d 1280

Ge as Pe a i eee

State v. Jones, 763 So. 2d 1180 (Fla. Dist.

a A SOEs hae sos ck Feo cei h ee h anes

Villot v. Varner, 373 F.3d 327 (3d Cir. 2004)......

Wiggins v. Smith, 539 U.S. 510 (2003) ............

Williams v. Taylor, 529 U.S. 362 (2000)...........

Yee v. City of Escondido, 503 U.S. 519

6 25 REGO AED Te OREN GT IP Ba i agpietert

Other Authorities

3 Cee wee: 8 os i a a ea

Bes I Oo is bei ooh bs wes eck nes

©o © OO ©

I. THE STATE DOES NOT DISPUTE THAT THE

ELEVENTH CIRCUIT’S DECISION IS INCONSIS-

_ TENT WITH CLEMONS AND SOCHOR.

In its Opposition, the State simply reproduces the opin-

ion of the Eleventh Circuit. It does not answer any of the

arguments presented in Herring’s Petition. In particular,

this Court will search in vain for responses to any of the

following points:

Under Clemons v. Mississippi, 494 U.S. 738

(1990), the Florida Supreme Court was required —

either to independently reweigh the aggravating

and mitigating circumstances or conduct a harm-

less error analysis. It did neither, and its opinion

is plainly inconsistent with Clemons.

The Florida Supreme Court’s failure to meet the

Clemons standard is particularly obvious because

of an unusual coincidence. On the same day it

decided Herring, May 2, 1991, it also decided

Sochor v. Florida, 580 So. 2d 595 (Fla. 1991), a

case later reversed by this Court pursuant to

Clemons. Sochor v. Florida, 504 U.S. 527

(1992). The State does not address the similari-

ty between Herring and Sochor or attempt to

explain why, if Sochor was reversed, the Her-

ring decision should stand.

The State fails to address Herring’s argument that

the Eleventh Circuit applied an incorrect defini-

tion of procedural default. In particular, the State

makes no effort to reconcile the Eleventh Circuit’s

reasoning with the standard articulated by this

Court in Yee v. City of Escondido, 503 U.S. 519

(1992): “Once a federal claim is properly pre-

sented, a party can make any argument in support

of that claim; parties are not limited to the pre-

cise arguments they made below.” Jd. at 534; see

also Miller-El v. Dretke, 125 S. Ct. 2317 (2005).

Perhaps most inexcusably, the State does not explain the

inconsistency in its own position. In responding to Herring’s

habeas corpus petition in the federal district court, the State

acknowledged repeatedly that Herring had properly asserted

a Clemons claim in the Florida state courts, and that the

Supreme Court had decided the claim on the merits. An

excerpt from the State’s district court brief makes this clear:

Herring raised this claim in his 1988 Florida Rule

of Criminal Procedure 3.850 motion. The collateral

proceeding trial court denied relief, and the Florida

Supreme Court affirmed the denial of relief on this

claim. ...

Because the Florida Supreme Court decided this

claim on the merits’, the writ of habeas corpus can-

not be granted unless that merits determination is

contrary to, or an unreasonable application of, prece-

dent announced by the United States Supreme Court,

or is an unreasonable determination of the facts in

light of the evidence from the state court proceed-

ing.

3 The Florida Supreme Court could have decided

this claim on procedural bar grounds, but elected to

reach the merits of this claim because of the high-

ly unusual posture of this case. Herring v. State,

580 So. 2d at 137-8.

(SA-1-3.!)

”

! The Supplemental Appendix hereto is cited as “SA-__.

The State thereby waived any claim of procedural

default in the district court. Not only was that forbearance

correct as a matter of law; the State is now bound by it. See

Gray v. Netherland, 518 U.S. 152, 166 (1996); Esslinger v.

Davis, 44 F.3d 1515, 1525-28 (11th Cir. 1995).

Finally, the State suggests that Herring’s Clemons claim

is procedurally defaulted because Herring did not argue

the issue of procedural bar in his initial brief in the

Eleventh Circuit. The failure to raise an argument in an

opening brief does not implicate the doctrine of procedur-

al default. That doctrine is grounded in “considerations of

comity and concerns for the orderly administration of jus-

tice.” Dretke v. Haley, 541 U.S. 386, 392-93 (2004). It

provides, in essence, that a federal court will not address

an issue where a state court has not had the opportunity to

do so. That is not what happened here. The issue of proce-

dural bar was addressed in four separate submissions to the

Eleventh Circuit: the State’s answering brief; Herring’s

reply brief; post-argument letters submitted both by Her-

ring and the State. The Eleventh Circuit had every oppor-

tunity to address the argument, and did so.

II. HERRING WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF COUNSEL AT THE SENTENC-

ING PHASE OF HIS TRIAL.

In the past five years, this Court has issued three deci-

sions which address in detail the obligations of defense

counsel in the penalty phase of a capital case. Williams v.

Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S.

510 (2003); Rompilla v. Beard, 125 S. Ct. 2456 (2005).

The State does not even attempt to measure the perform-

ance of Herring’s counsel, Peyton Quarles, against the

standard set by these cases.

In particular, the State offers no explanation or excuse

for any of the following aspects of Quarles performance,

all of which demonstrate that he afforded Herring a

defense which fell below even the most lenient standard of

effective performance.

1. Quarles conducted no investigation ‘in preparation for

the sentencing phase, except for perfunctory interviews of

Herring and his mother. Although Quarles employed the

services of an investigator, that investigator was not asked

to prepare for the sentencing phase.

2. Quarles had in his possession records from St. Lukes

Hospital in New York, where Herring had been treated as a

child, stating that Herring had signs of “brain dysfunction,”

“neurological dysfunction,” “psychoneurotic disorder,” and

that he was “undoubtedly functionally retarded.” Quarles

submitted none of these records at the sentencing phase.

3. Quarles admitted that he did not know how to offer

the St. Lukes records in evidence. There can be no more

convincing demonstration of ineffective assistance than a

lawyer whose ignorance of the rules of evidence disables

him from putting crucial documents in evidence.

4, Because Quarles’ inadequate investigation had locat-

ed no expert witnesses and his incompetence prevented

him from putting relevant documents in evidence, the only

evidence he offered of Herring’s low I.Q. was the testimo-

ny of Herring’s mother, who was compelled to admit on

cross examination that she did not understand what 1.Q.

scores meant. The prosecutor deliberately exploited her

ignorance in summation.

5. Besides talking to Herring and his mother, an inquiry

that yielded nothing, Quarles made no effort to locate char-

acter witnesses. Subsequent efforts by the counsel repre-

senting Herring in his post conviction proceedings located

six witnesses, all of whom submitted affidavits attesting to

Herring’s positive qualities.

The State makes no effort to reconcile Quarles’ perform-

ance with this Court’s prior decisions because it cannot. This

Court has made clear that defense counsel is obligated “to

conduct a thorough investigation of the defendant’s back-

ground,” Williams v. Taylor, 529 U.S. at 396, and that counsel

has a duty to “explore all avenues leading to facts relevant to

the merits of the case and the penalty in the event of convic-

tion.” Rompilla, 125 S. Ct. 2456, 2466.

The State does not defend the Eleventh Circuit’s conclu-

sion that Quarles met the test of competence because he

consulted Dr. William Friedenberg on the issues of sanity

and competence to stand trial. In reaching this conclusion,

the Eleventh Circuit completely ignored the distinction

between guilt phase evidence and sentencing phase miti-

gation. It is now beyond question that competent defense

counsel is obligated to pursue both issues; a guilt phase

inquiry does not remedy sentencing phase deficiencies. This

distinction has been recognized in the decisions of several

other Circuits. Hendricks v. Calderon, 70 F.3d 1032, 1037,

1043-44 (9th Cir. 1995); Starr v. Lockhart, 23 F.3d 1280,

1289-90, 1293 (8th Cir. 1994); Clabourne v. Lewis, 64 F.3d

1373, 1384-87 (9th Cir. 1995); Harries v. Bell, No. 02-

6886, 2005 WL 1796224, at *5-6 (6th Cir. July 28, 2005);

Powell v. Collins, 332 F.3d 376, 395 (6th Cir. 2003).

In Hendricks, the Ninth Circuit held that “where counsel

is on notice that his client may be mentally impaired,

counsel’s failure to investigate his client’s mental condi-

tion as a mitigating factor in a penalty phase hearing, with-

out a supporting strategic reason, constitutes deficient

performance.” Jd. The Ninth Circuit further held that

“(t]he prosecution takes an all or nothing approach, con-

tending that if the investigation into mental defenses in the

guilt phase was sufficient to foreclose further investigation

in the guilt phase, it must be sufficient to foreclose inves-

tigation into mitigation based on mental condition in the

penalty phase as well. The differing legal standards in the

guilt and penalty phases render this argument a non

sequitur.” /d.; see also Starr, 23 F.3d at 1289; Powell, 332

F.3d at 383-84, 395-96 (retention of mental health expert

for competency hearing and guilt phase was insufficient to

prepare for the sentencing phase).

The State makes no effort to buttress or justify the

Eleventh Circuit’s conclusion that “the case Quarles put on

was the product of a tactical decision made after-investi-

gation.” (A-170). No responsible review of Quarles’ per-

formance—and we invite this Court to make as thorough a

review as it wishes—could yield that conclusion. The only

possible conclusion is that Quarles was a poorly prepared

novice who did, in his own words, “a lousy job.” In Wig-

gins this Court noted: “the ‘strategic decision’ the state

courts and respondents all invoke to justify counsel’s lim-

ited pursuit of mitigating evidence resembles more a post-

hoc rationalization of counsel’s conduct than an accurate

description of their deliberations prior to sentencing.” 539

U.S. at 526-27. Those words apply with particular force to

the Eleventh Circuit’s conclusion that Quarles’ perform-

ance was the product of strategic choice.

Notwithstanding Quarles’ ineptitude, the jury’s vote for

death was only 8-4. Had Herring been represented by a

competent lawyer who could have presented the mitigating

evidence that was readily at hand, he would not be facing

execution for a “robbery/murder [that] differs little from

many others wherein the death penalty was deemed inap-

propriate.” Herring v. State, 580 So. 2d 135, 139 (Fla.

1991) (Barkett, J., dissenting).

lll. HERRING’S MIRANDA CLAIM WAS NOT

PROCEDURALLY DEFAULTED, AND THE

ELEVENTH CIRCUIT ERRED IN DECLINING

TO HEAR IT.

The State offers no response to Herring’s argument that

the admission of the White testimony violated Miranda v.

Arizona, 384 U.S. 436 (1966), and Estelle v. Smith, 451 U.S.

454 (1981). Although it claims that Herring’s argument was

procedurally defaulted, the Florida Supreme Court addressed

the issue on the merits and thus cured any procedural default.

When the State sought to introduce White’s testimony at

trial, Herring’s counsel objected and thus preserved the

point for appellate review. Herring’s appellate counsel

failed to raise the issue on direct appeal to the Florida

Supreme Court. Herring later petitioned the Florida

Supreme Court for a writ of habeas corpus, alleging inef-

fective assistance of appellate counsel. Herring v. Dugger,

528 So. 2d 1176 (Fla. 1988) (A-40). In denying Herring’s

petition, the Florida Supreme Court decided Herring’s

Miranda claim on the merits:

Controlling case law establishes that a warning

and waiver of rights given following the arrest for a

criminal offense is sufficient to cover any later

statements to a law enforcement officer concerning

other criminal offenses. Colorado yv. Spring, 479

U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987).

There is no necessity to continually readvise an

individual in custody as to his or her Miranda

rights, particularly when the place of custody is the

same and the time periods are not remote. It is not

disputed that the probation officer talked to Herring

concerning the homicide only after Herring had

been taken into custody, Miranda warnings had

been given, and Herring had executed a waiver of

his rights. We find the statement was clearly admis-

sible and, consequently, appellate counsel was not

deficient in failing to raise this issue.

Herring v. Dugger, 528 So. 2d at 1178 (citations omitted);

(A-45).

This is beyond question a merits decision; indeed, a

Florida court cited it in analyzing a Miranda claim. See

State v. Jones, 763 So. 2d 1180, 1180 (Fla. Dist. Ct. App.

2000) (citing Herring for the proposition that “a warning

and waiver of rights given following the arrest for a crim-

inal offense is sufficient to cover any later statements”). If

a state court decides a procedurally defaulted claim on the

_ merits, that decision cures the procedural default. Peoples

v. Campbell, 377.F.3d 1208, 1235 (11th Cir. 2004), cert.

denied, 125 S. Ct. 2963 (2005); Villot v. Varner, 373 F.3d

327, 335 (3d Cir. 2004). Hence the State’s invocation of

procedural default does not answer Herring’s argument.”

2 In addition, the ineffective assistance of Herring’s appellate

counsel constitutes “cause” which would excuse procedural default by

Herring even if it existed. Courts routinely have held that the errors of

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.