793 Fed.Appx. 834 (11th Cir. 2019), 18-11421, King v. Secretary, Department of Corrections

Docket Nº:18-11421
Citation:793 Fed.Appx. 834
Opinion Judge:MARTIN, Circuit Judge:
Party Name:Michael L. KING, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
Attorney:Lisa Marie Bort, Ali A. Shakoor, Capital Collateral Regional Counsel, Temple Terrace, FL, for Petitioner - Appellant Scott A. Browne, Attorney General’s Office, Criminal Division, Tampa, FL, for Respondent - Appellee Secretary, Department of Corrections Pam Bondi, Attorney General’s Office, Talla...
Judge Panel:Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
Case Date:October 25, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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793 Fed.Appx. 834 (11th Cir. 2019)

Michael L. KING, Petitioner-Appellant,

v.

SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 18-11421

United States Court of Appeals, Eleventh Circuit

October 25, 2019

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

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Lisa Marie Bort, Ali A. Shakoor, Capital Collateral Regional Counsel, Temple Terrace, FL, for Petitioner - Appellant

Scott A. Browne, Attorney General’s Office, Criminal Division, Tampa, FL, for Respondent - Appellee Secretary, Department of Corrections

Pam Bondi, Attorney General’s Office, Tallahassee, FL, for Respondent - Appellee Attorney General, State of Florida

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 8:17-cv-00985-VMC-TGW

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

OPINION

MARTIN, Circuit Judge:

Michael King, a Florida death row inmate, appeals the District Court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. King has raised three issues in this appeal: (1) whether trial counsel rendered ineffective assistance of counsel for failing to preserve a challenge to a peremptory strike under

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Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); (2) whether trial counsel rendered ineffective assistance of counsel for failing to investigate Mr. King’s exposure to toxic substances; and (3) whether the District Court violated due process or otherwise abused its discretion by adopting portions of the State’s response brief in its order denying Mr. King’s § 2254 petition. After careful consideration, and with the benefit of oral argument, we affirm the denial of Mr. King’s habeas petition.

I. BACKGROUND AND PROCEDURAL HISTORY

Mr. King was convicted and sentenced to death in 2009 for the murder, kidnapping, and involuntary sexual battery of Denise Amber Lee. See King v. State ("King I"), 89 So.3d 209, 219 (Fla. 2012). Mr. King’s crimes against Mrs. Lee were nightmarish. The horrific nature of his crimes is not disputed, so we will not elaborate on them here. Rather, in this appeal we address whether the performance of Mr. King’s trial counsel was deficient and whether the District Court erred when it incorporated portions of the State’s response brief into its order.

A. RELEVANT TRIAL PROCEEDINGS

At his trial, Mr. King was represented by Carolyn Schlemmer, John Scotese, and Jerome Mesiner. See King v. State ("King II"), 211 So.3d 866, 879 (Fla. 2017). Ms. Schlemmer had been working on death penalty cases "for the better part of 20 years" at the time she came to represent Mr. King. Mr. Scotese had handled one capital case and therefore met the qualifications to handle capital cases on his own, while Mr. Mesiner did not. See

id. at 884.

During voir dire, the State moved to use a peremptory challenge of Juror 111, an African American woman. Mr. Scotese objected and asked for a "race neutral" justification for the strike. The State responded with: On Juror Number 111, she’s an 18-year-old female. She came across as meek, young and inexperienced. She’s the youngest on the panel we have existing so far. Her statement during the original death qualification was that living life in prison is more awful than a death sentence. Her brother has a pending felony drug charge. She watches the television show CSI. Commonly, a concern of ours is that they would hold us to a TV standard as opposed to a regular standard. And based on these foregoing reasons, we exercise our peremptory challenge on Number 111.

In response, the trial court stated that other jurors on the panel "watch CSI or watch Perry Mason or whatever." The State then asserted that "[our] race neutral reason, this is not a challenge for cause, she indicated that living a life in prison is more awful than a death sentence." The trial court explained that "[o]ther jurors have said the same thing." In response, the State said it would "strike [the] other jurors ... remaining on the panel that have said" life without parole is worse than the death sentence.

The trial court then repeated that Juror 111’s brother "has a pending ... criminal charge" and the State confirmed this was true. Thus, the trial court found that Juror 111’s brother’s pending drug charge was "a genuine race neutral reason" for removing Juror 111 from the jury, and overruled Mr. Scotese’s objection to the State’s peremptory challenge.

Also relevant to this appeal is the penalty-phase evidence of Mr. King’s mental health. Mr. King offered the testimony of

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Dr. Joseph Chong Sang Wu, who conducted a PET scan and concluded that Mr. King had a traumatic brain injury. King II, 211 So.3d at 876. Dr. Wu testified that people who suffer frontal lobe injuries are more likely to have poor judgment, exhibit blunted affect, take excessive risks, have difficulty regulating impulses such as aggression, and have difficulty separating fantasy from reality. Id. at 876-77. According to Dr. Wu, Mr. King’s "most recent verbal IQ score placed him in the borderline retarded range." Id. at 877. Mr. King also presented the testimony of Dr. Kenneth Visser, who performed an IQ test on Mr. King. That testing of Mr. King produced a verbal IQ score of 71, a performance IQ score of 85, and a full-scale IQ of 76. Id. Dr. Visser testified that this placed King in the borderline intellectual functioning range. Id.

Ultimately, the jury unanimously recommended a sentence of death. King II, 211 So.3d at 878. The trial court found the existence of two statutory mitigating circumstances: (1) Mr. King’s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired (moderate weight), and (2) his age, thirty-six (little weight). Id. The trial court further found that Mr. King had established thirteen nonstatutory mitigating circumstances. See id. at 878-79. Nonetheless, the trial court found that the State proved four aggravating circumstances beyond a reasonable doubt and sentenced Mr. King to death. Id. at 878.

B. DIRECT APPEAL

On direct appeal, the Florida Supreme Court affirmed Mr. King’s convictions and death sentence. King I, 89 So.3d at 212. The United States Supreme Court denied his petition for writ of certiorari on October 15, 2012. King v. Florida, 568 U.S. 964, 133 S.Ct. 478, 184 L.Ed.2d 300 (2012).

C. STATE COLLATERAL PROCEEDINGS

In September 2013, Mr. King filed a motion for postconviction relief in the trial court under Florida Rule of Criminal Procedure 3.851. In his Rule 3.851 motion, Mr. King argued, among other things, that his trial counsel was ineffective for failing to investigate and present evidence regarding his exposure to toxic substances and for failing to properly preserve a Batson /J.E.B. challenge for direct appeal. After conducting an evidentiary hearing, the state postconviction court issued a written order denying relief in August 2014. The Florida Supreme Court affirmed the denial of relief in January 2017, King II, 211 So.3d at 870-71, and denied his motion for rehearing on March 13, 2017.

D. FEDERAL HABEAS PROCEEDINGS

Mr. King filed his § 2254 petition in the District Court on April 27, 2017. He sought relief on six grounds. For our purposes, Mr. King raised both of his ineffective assistance of counsel claims and asserted that the Florida Supreme Court’s resolution of those claims was contrary to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In particular, Mr. King argued that his trial counsel was ineffective for failing to investigate the effects of the toxins Mr. King was exposed to during his childhood and in his job as a plumber. He also raised the Batson

/J.E.B. issue again.

The District Court denied habeas relief and held that the Florida state courts reasonably applied Strickland in ruling that Mr. King failed to establish that his trial counsel’s failure to investigate his exposure to toxic substances was deficient. The

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District Court found that trial counsel consulted several experts to ascertain whether Mr. King suffered any neurological disorders. Further, one of these experts discussed Mr. King’s exposure to toxins from rat poisoning and crack pipe fumes, but, at the time of trial, neither Mr. King, his family, the investigator, nor the medical experts alerted Mr. King’s trial counsel to the possible exposure of toxic chemicals from growing up near farms or from his plumbing career. As a result, the District Court held that Mr. King’s trial counsel had no reasonable basis for further toxin exposure investigation, so was not ineffective. The District Court also ruled Mr. King’s trial counsel was not ineffective for failing to preserve the Batson

/J.E.B. challenge for direct appeal because there was evidence that Mr. King’s trial counsel did not want Juror 111— the juror at issue— on the jury.

II. STANDARD OF REVIEW

A. HABEAS STANDARDS

Under § 2254, a prisoner held "in custody pursuant to the judgment of a State court" may seek habeas relief only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Generally, a prisoner must first "fairly present" his federal claims to the state court and exhaust his state court remedies before seeking federal habeas relief. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (alteration adopted and quotation marks omitted). When a state court has adjudicated a prisoners claims on the merits, this...

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