Evans v. Sec'y, Dep't of Corr.

• Decision Date: 23 May 2012
• Docket Number: No. 10–14920.,10–14920.
• Citation: 23 Fla. L. Weekly Fed. C 1064,681 F.3d 1241
• Parties: Wydell EVANS, Petitioner–Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

681 F.3d 1241

23 Fla. L. Weekly Fed. C 1064

Wydell EVANS, Petitioner–Appellant,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 10–14920.

United States Court of Appeals, Eleventh Circuit.

May 23, 2012.

Richard E. Kiley (Court–Appointed), James Vincent Viggiano, Capital Collateral Regional Counsel, Tampa, FL, for Petitioner–Appellant.

Barbara C. Davis, Kenneth Sloan Nunnelley, Office of the Atty. Gen., Daytona Beach, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, WILSON and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

Petitioner Wydell Evans, a Florida death row inmate, appeals the District Court's denial of his first federal habeas corpus petition. This appeal presents a single claim for relief—whether Evans was denied the constitutional right to effective assistance of counsel at the penalty phase of his capital trial. Because Evans filed his federal petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). See Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1345 (11th Cir.2011). Where, as here, a state court has denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to warrant federal habeas relief “was intended to be, and is, a difficult one.” Johnson v. Sec'y, DOC, 643 F.3d 907, 910 (11th Cir.2011) (citing Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)). After carefully reviewing the record in this case and having the benefit of oral argument, we conclude that Evans has satisfied AEDPA's demanding standard and, therefore, that habeas relief is warranted.

I. BACKGROUND FACTS¹

A. Trial

The Florida Supreme Court summarized the facts presented at Evans's 1999 trial as follows:

On October 21, 1998, two days after being released from prison, Wydell Evans shot and killed his brother's seventeen-year-old girlfriend, Angel Johnson, during an argument over her alleged unfaithfulness to Evans'[s] brother. At the time of the shooting, Evans was in an automobile with Johnson, Erica Foster, Sammy Hogan, and Lino Odenat. At some point during the argument, Johnson laughed, to which Evans responded, “You think it's funny? You think it's funny?” Evans then pulled out a gun and shot Johnson in the chest.

Evans I, 838 So.2d at 1092.

After the shooting, Evans instructed Hogan to drive him to a friend's house. Along the way, Evans instructed Odenat to get rid of the gun. After stopping at the friend's house, Evans directed Hogan to take him to a nearby parking lot where Evans tried to wipe his prints from the car. He also threatened to kill Foster and Hogan if they told authorities who shot Johnson. Once Evans was out of the car, Foster and Hogan took Johnson to the hospital where she later died from her gunshot wound.

At the hospital, Foster and Hogan eventually identified Evans as the shooter. He was arrested the next day. During his jury trial in October 1999, the defense theory was that Evans accidentally shot Johnson while handing the gun to her. Evans testified to this version of events during the guilt phase of his trial. He was convicted of one count of first-degree premeditated murder, one count of kidnapping, and one count of aggravated assault.

B. Penalty Phase

On November 3, 1999, a penalty phase was conducted. The state established that Evans had two prior convictions for battery upon a law enforcement officer and a prior conviction for aggravated battery, and that he was on probation at the time of the offense.

Defense counsel presented no mental health mitigation. But defense counsel did present the testimony of several character witnesses, including Lilly Evans (defendant's mother), Sandra Evans (defendant's aunt), Minne Jarrett (defendant's cousin), Linda Key (defendant's lifelong friend), and Patty Walker (defendant's cousin). These character witnesses gave positive accounts of Evans, “describing him as a generous man, a good father, a loving and obedient son and grandson, a good friend, and someone who counseled children to stay out of trouble by staying in school.” Evans II, 946 So.2d at 4. Further, Lilly Evans told the jury that while Evans had been an obedient child and good in school, her addiction to crack cocaine had affected his behavior. She also testified that Evans had been her inspiration to stop abusing crack cocaine. Evans testified that his mother's crack addiction adversely affected him.

The jury recommended the death penalty by a vote of ten to two. Then the trial court held a hearing pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993), and entered a written order sentencing Evans to death. The trial court found two aggravating circumstances: (1) Evans had been convicted of prior violent felonies, Fla. Stat. § 921.141(5)(b); and (2) the crime was committed while Evans was on probation, Fla. Stat. § 921.141(5)(a). Although Evans did not request the trial court to consider any of the statutory mitigators, the court considered each statutory mitigator in its sentencing order and found that none applied. Based on the character evidence presented during the penalty phase, the trial court found the following nonstatutory mitigating circumstances: “(1) Evans experienced an abused or deprived childhood; (2) he contributed to society; (3) he performed charitable deeds; (4) he counseled youth to avoid crime and stay in school; and (5) he exhibited good behavior in prison.” Evans II, 946 So.2d at 5 n. 3. But the trial court only gave these mitigating circumstances “some” or “little weight.” Ultimately, the trial court concluded that the aggravating circumstances outweighed the mitigating circumstances and sentenced Evans to death for the first-degree murder conviction.²

C. Direct Appeal

The Florida Supreme Court affirmed Evans's convictions and death sentence on direct appeal. Evans I, 838 So.2d 1090. Three Florida Supreme Court justices concurred in affirming Evans's convictions, but dissented as to the death penalty, findingthat a death sentence was disproportionate because the homicide “occurred during an argument between Evans and the victim over her alleged unfaithfulness to his brother.” Id. at 1099 (Shaw, J., dissenting joined by Anstead, C.J., and Pariente, J.).³ The Supreme Court denied certiorari review. Evans v. Florida, 540 U.S. 846, 124 S.Ct. 121, 157 L.Ed.2d 84 (2003).

D. State Postconviction Evidentiary Hearing

Evans filed a motion for postconviction relief pursuant to Fla. R.Crim. P. 3.851 in the state trial court raising ten claims, including the penalty phase ineffective assistance of counsel claim now before us. The state trial court held an evidentiary hearing on October 19 and 20 and December 16, 2004. At the evidentiary hearing, Evans presented the testimony of five lay witnesses: Lilly Evans, Sandra Evans, Oren Evans (defendant's brother), Margaret O'Shaunessy (defendant's special education teacher), and Barbara McFadden (defendant's school counselor). He also presented the testimony of three mental health experts, Dr. Richard Carpenter, Dr. Henry Dee, and Dr. Harry McClaren,⁴ and the testimony of his trial counsel. Evans also testified.

The Florida Supreme Court summarized the lay witness evidence presented at the evidentiary hearing as follows:

Evans presented evidence of a troubled childhood. He presented his school and medical records, which demonstrated that he was hit by a car and was diagnosed with a closedhead injury at the age of three. [FN 9] His mother, Lilly, and his aunt, Sandra, witnessed the accident and testified that he stopped breathing for at least a minute after it occurred. They also testified that his speech and language patterns changed, and he began to stutter. In addition, Evans'[s] life at home was difficult. His father died when he was young, and he grew up with a mother who was addicted to crack cocaine and a stepfather who was abusive. As a result of his stuttering and difficulties at home, Evans was frequently picked on and beaten up by neighborhood children. He eventually retaliated and started fighting frequently. Lilly testified that his temper “became pretty quick.” Evans'[s] brother, Oren, testified that Evans was very aggressive and recalled instances of Evans throwing rocks at a police officer.

9. Evans'[s] injury is noted in his school records because Evans' mother relayed the incident to a school social worker during one of Evans'[s] evaluations.

Evans'[s] school records showed a history of speech and learning disabilities, as well as escalating behavioral problems due to anger and aggression. In elementary school, Evans was placed in a class for children with learning disabilities and received speech therapy. While Evans'[s] IQ tested in the normal range, disparities between his verbal and performance scores on the test indicated severe learning disabilities. Evans received mostly failing grades. In addition to academic problems, Evans was regularly disciplined for being disruptive and, as he got older, was frequently expelled from school for fighting. Evans'[s] violent behavior escalated from being aggressive with other students to being aggressive with a teacher. He was eventually classified as emotionally handicapped and was recommended for the severely emotionally disturbed program in high school, a program for the most violent students. School psychology reports described Evans as having poor impulse control, displaying excessive aggression, and having difficulty controlling anger. At the evidentiary hearing, Evans'[s] high school teacher, Barbara McFadden, and counselor, Margaret O'Shaunessy, also described Evans as angry, violent, impulsive, and having an explosive temper.

Evans II, 946 So.2d at 6–7. All of the lay witnesses testified that they would have testified at Evans's trial if they had been asked. But while both Lilly and Sandra Evans...