According to testimony at trial, the victim, Jeff Young, a Florida Highway Patrol Trooper, stopped an automobile with Michigan tags that was being driven north on Interstate 75 by Burns. According to Burns' passenger, Samuel Williams, he and Burns were returning to Detroit from Fort Myers. Prior to making the trip, Williams overheard Burns say that he was going tomake a couple of trips to Florida to purchase about $10,000 worth of cocaine. According to Williams, Trooper Young approached the car after pulling them over and asked Burns and Williams for identification. He then returned to the patrol car to use the radio. The highway patrol dispatcher testified that Trooper Young requested a registration check on the Michigan tag and a wanted persons' check. Williams further testified that Young returned to the vehicle and asked to search it. After searching the passenger compartment, Young asked to search the trunk, which Burns voluntarily opened. According to Williams, Burns and Trooper Young began to struggle after the officer found what "looked like cocaine" in a bank bag that was in the trunk.
Several passersby who witnessed the struggle testified at the trial. According to those witnesses, the struggle continued until the two ended up in a water-filled ditch. At this point, Burns gained possession of Trooper Young's revolver. Passersby who had returned to assist the officer testified that Young, who was attempting to rise out of the water, warned them to stay away and said, "He's got my gun." Young told Burns, "You can go," and, "You don't have to do this." According to testimony of these witnesses, Burns stood over Trooper Young, who had his hands raised, held the gun in both hands, and fired one shot. According to the medical examiner, the shot struck the officer's wedding ring and grazed his finger before entering his head through his upper lip, killing him. After telling Williams to leave with the vehicle, Burns fled the scene on foot. By the time a fellow trooper arrived to assist Young, he was lying in the water-filled ditch, dead. His shirt had been ripped exposing his bulletproof vest.
Burns was apprehended later the night of the murder. A subsequent search of the vehicle, found abandoned the next day, revealed over 300 grams of cocaine in bags found under the spare tire in the trunk. Burns's fingerprints were recovered from one of these bags. Cocaine and documents with Burns's name on them were also found in the bank bag, which had been left on the ground at the scene of the murder.
Burns v. State, 609 So. 2d 600, 602-03 (Fla. 1992) ("Burns I"). Burns's death sentence was vacated on direct appeal in Burns I. A new penalty hearing produced the same sentence, which was affirmed on appeal. Burns v. State, 699 So. 2d 646 (Fla. 1997), cert. denied, 522 U.S. 1121 (1998) ("Burns II"). Each claim Burns asserts in this federal petition challenges the validity of his death sentence from the re-sentencing.
The jury in the re-sentencing proceeding unanimously recommended death.2 (Respondent's Exhibit B-2 at 220) The trial judge found three aggravating factors3 and afforded some weight to both two statutory mitigating factors4 and three non-statutory mitigating factors.5 (Respondent's Exhibit B-2 at 272-73) The trial judge summarized the facts of the murder as follows (Respondent's Exhibit B-2 at 271-72):
[After finding what "looked like cocaine"], Young turned to walk back to his patrol car with Burns walking behind him. Burns suddenly, and without provocation from Young, lunged at Young, grabbed the trooper from behind and wrestled so violently with Young that both men fell to the ground behind Young's patrol car. Burns, a much larger man than Young, covered the trooper so that it was not readily apparent that Young was under Burns.
Young struggled to get away from Burns, but Burns grabbed Young in a bear hug from the rear pinning the trooper's arms against his body. Burns then lifted Young off the ground, shaking Young hard and throwing him around "like a sack of potatoes." As Burns threw Young around the two men went down an incline into a ditch where the men fell, Young coming to rest on his back. Burns first choked then flailed away at Young's face with closed fists, upward of ten blows. Burns grabbed Young's gun belt and ripped it free of the keepers that held the gun belt to Young's regular belt underneath, pulled the holster to the front, and removed Young's .357 revolver. Young wore a bullet-proof vest visible at the top of his shirt.
While Burns stood above Young, and while Young tried to stand up rising to a kneeling position, with palms pointed toward Burns as if pleading, Burns turned briefly back toward the roadway where several witnesses stood. Young told the witnesses to stay back because Burns had his (Young's) revolver and told Burns, "You don't have to do this."
Burns turned back toward Young, placed his left hand under his right hand that held the revolver, and at a range of 18 inches fired at Young's head. The bullet hit the ring finger of Young's left hand and went into Young's face just above his mouth. Turning to the witnesses, Burns looked, told [his passenger] to drive away, and then Burns calmly climbed over a fence and walked casually into a marshy area. Approximately three hours later Burns was caught in the marsh. Young's revolver was recovered later in the water at the spot where Burns was taken into custody.
The trial judge found that the aggravating factors outweigh the mitigating factors and imposed a sentence of death for the following reasons (Respondent's Exhibit B-2 at 273-74):
Young never provoked Burns, but Burns was the aggressor from start to finish.
Burns knew he was being followed by Young and that discovery of the crack cocaine would mean certain arrest, a drug trafficking conviction, and a lengthy prison sentence. Though presented through many witnesses, the mitigating factors are not substantial or significant enough to overcome the grave nature of the aggravating factors. While struggling with Young, Burns had ample time and the presence to mind to reflect upon his actions, to devise a method to take Young's revolver, and to consider the consequences of those actions, fully aware of their wrongful nature. Instead of merely disabling Young, Burns chose to murder the trooper. There was no moral or legal justification for Burns's actions.
Burns challenged his sentence in a Rule 3.850 motion to vacate sentence, which was denied and the denial affirmed on appeal. Burns v. State, 944 So. 2d 234 (Fla. 2006) ("Burns III"). Similarly, the denial of his successive Rule 3.851 motion to vacate sentence was affirmed on appeal. Burns v. State, 3 So. 3d 316 (Fla. 2009) ("Burns IV").
Remaining for review on the merits are two grounds (I and V) raised on the direct appeal from the re-sentencing, two grounds (II and III) raised in the first post-conviction appeal,6 and one ground (VI) raised in the second post-conviction proceeding. The grounds are addressed in that order.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
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-
(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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." 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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but
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