Evans v. Sec'y, Dep't of Corr., No. 10–14920.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPRYOR
Citation703 F.3d 1316
PartiesWydell EVANS, Petitioner–Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of Florida, Respondent–Appellee.
Docket NumberNo. 10–14920.
Decision Date04 January 2013

703 F.3d 1316

Wydell EVANS, Petitioner–Appellant,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of Florida, Respondent–Appellee.

No. 10–14920.

United States Court of Appeals,
Eleventh Circuit.

Jan. 4, 2013.


[703 F.3d 1318]


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

Kenneth Sloan Nunnelley, Atty. Gen.'s Office, Daytona Beach, FL, for Respondent–Appellee.


Appeal from the United States District Court for the Middle District of Florida.
Before DUBINA, Chief Judge, and TJOFLAT, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges.

PRYOR, Circuit Judge:

The issue in this appeal is whether a reasonable jurist could conclude that evidence of a capital murderer's mental health problems, including antisocial personality disorder; his crack cocaine and alcohol abuse; his life of crime, including drug dealing, robberies of drug dealers, and regular use of firearms; and his history of escalating violence, particularly toward women, was likely to be more harmful than helpful if introduced as mitigation during the penalty phase of his trial. Wydell Evans shot and killed his brother's 17-year-old girlfriend, Angel Johnson, two days after being released from prison. During the penalty phase of Evans's trial, the state presented evidence of his prior

[703 F.3d 1319]

convictions, and Evans's counsel presented evidence to portray his client in a positive light. The trial court followed the recommendation of the jury that Evans be sentenced to death. In state postconviction proceedings, Evans argued that his counsel had been constitutionally ineffective for failing to discover and introduce evidence that he had suffered a head injury at the age of three and had a long history of mental health and behavioral problems. Three mental health experts testified that Evans suffered from antisocial personality disorder. Lay witnesses also testified about Evans's long history of violent behavior. For example, Evans's brother, Oren Evans, testified that Evans was “the angriest, most aggressive person [he had] ever met” and recalled an occasion where Evans had searched for the mother of one of his children only to take her home and “beat[ ] her up and all type of stuff.” And one of Evans's former teachers stated that she was not “surprised or shocked” when she heard that Evans had murdered someone; she was only “surprised it [had]n't happen[ed] sooner.” The state trial court ruled that Evans's claim of ineffective assistance of counsel failed, and the Supreme Court of Florida affirmed on the ground that Evans had failed to prove prejudice because his postconviction evidence of mitigation was more harmful than helpful. Because that decision is reasonable, we affirm the denial of Evans's petition for a writ of habeas corpus.

I. BACKGROUND

We divide our discussion of the background of this appeal into four sections. First, we discuss the evidence introduced in the guilt phase of Evans's trial. Second, we discuss the evidence introduced in the penalty phase of Evans's trial. Third, we discuss Evans's postconviction challenges to his sentence in state court. Fourth, we discuss the procedural history of Evans's petition for a writ of habeas corpus.

A. Guilt Phase

During the guilt phase, the state presented evidence that Evans's crime had been premeditated. While incarcerated for an earlier parole violation, Evans had engaged in a heated argument with his brother's 17–year–old girlfriend, Angel Johnson, over the phone and told another prisoner that “[i]f I could get my hands on [Johnson,] I'll kill that bitch.” Two days after being released from prison, Evans shot and killed Johnson.

The shooting occurred in a car occupied by Johnson, Evans, Lino Odenat, Sammy Hogan, and Erica Foster. The group first stopped for gas. Evans instructed the driver, Hogan, not to stop at the first two gas stations they visited because “too many police” were patrolling the area.

Shortly after leaving the gas station, Johnson and Evans began to argue about Johnson's alleged unfaithfulness to Evans's brother, Oren. When Hogan intervened to tell Evans that Johnson was not cheating on his brother, Evans instructed Hogan to stay out of the argument and punched the windshield of the car with sufficient force to crack the windshield. Evans told Johnson, “You're not going to cheat on my brother like my girlfriend cheated on me.” At some point during the argument, Johnson laughed. Evans responded, “You think it's funny? You think it's funny?” Evans then pulled out a gun and pointed it at Johnson. Johnson put her hands up and said, “Alright, Wydell, Alright.” Despite Johnson's pleading, Evans shot Johnson in the chest.

Johnson fell into Foster's lap and said, “Wydell, you shot me for real. You shot me for real.” Johnson began gasping for air and Odenat tried to roll down a window to give her some air. Evans ordered Odenat

[703 F.3d 1320]

not to roll down the window and stated, “That bitch is dead. She's dead.” Immediately after shooting Johnson, Evans began threatening the other passengers in the car with the gun and telling them that he would kill them if they told anyone that he had killed Johnson. Evans then ordered Hogan to drive the car to the home of his friend, Jerry Davis.

Evans told Davis that he “missed and shot the girl” and asked Davis if he could borrow some money. Davis gave Evans $40, and Evans returned to the car. Evans ordered Hogan to drive to a nearby parking lot. There Evans warned Foster and Hogan that, if they told anyone that he had shot Johnson, he would kill them, and he would “get the whole family.” Evans told them that he was “dead-ass serious” and “swore on his grandma's grave” and “to God.” He warned, “If I go to jail I'm going to get out because I've done something like this before and I've got out before.” He then tried to wipe his fingerprints from the car before allowing Foster and Hogan to take Johnson to the hospital. Despite Evans's threats, both Foster and Hogan eventually identified Evans as Johnson's killer. Evans was indicted for first-degree premeditated murder, kidnapping, and aggravated assault.

Evans testified that he had found the gun in the front seat of the car and that the gun had accidentally discharged when he tried to hand it to Johnson in the back seat. He also testified that, although he was “slightly intoxicated” on the night that he shot Johnson, he had a “clear recollection of what happened” and “knew what was going on” at the time. He conceded that, when he shot Johnson, he was “perfectly aware of everything” and “functioning fine.” A Florida jury convicted Evans of all three counts. See Evans v. State, 838 So.2d 1090, 1092 (Fla.2002).

B. Penalty Phase

During the penalty phase, the state proved that Evans had two previous convictions for battery upon a law enforcement officer, a previous conviction for aggravated battery, and that Evans was on probation for felony possession of a firearm and escape when he shot Johnson. Evans's previous convictions were uncontested. Indeed, Evans testified about three violent felonies that he committed.

Evans's counsel presented evidence of Evans's positive characteristics. Several character witnesses described Evans “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 v. State, 946 So.2d 1, 4 (Fla.2006). Evans's mother, Lilly Evans, testified that his father had died when Evans was three years old, that she had been addicted to crack cocaine during part of his childhood, that her addiction had contributed to his downfall, and that he had been her inspiration to stop abusing the drug.

Several witnesses testified about Evans's upbringing and his supportive relationship with some of his family members, particularly his grandmother. Lilly admitted that, although she left her son in his grandmother's care for a period of time, he had never been deprived physically of anything; he had always had a home in which to live and food to eat; and he had been a “normal” and “obedient” child who had received “okay grades.” Lilly also testified that Evans was close to the five children he had with different women and that the mother of one of his children had died. Evans's cousin, Minnie Jarrett, testified that Evans's grandmother raised Evans when his mother was unable to care for him; that his grandmother was a “very religious Christian woman” who “maintained that aspect of her life within her

[703 F.3d 1321]

household”; and that his grandmother was a “[v]ery loving and caring woman” who provided Evans with “the things that he needed, love and support and the material things that he needed.” According to Jarrett, Evans's grandmother “treated [Evans] like [ ] he was her own son.” A family friend, Linda Key, agreed that Evans had been part of a “loving family” and had been “provided support emotionally, financially, everything.” Evans's aunt, Sandra Evans, testified that Evans had helped in the care of his grandmother after his grandmother had a stroke. Evans had even changed his grandmother's diapers and had paid Sandra's bills while Sandra was caring for his grandmother.

Evans testified about his criminal history. He admitted that, although he had been hurt by his mother's cocaine addiction, her addiction had not caused him to “los[e] control of [his] identity.” He testified that he had dropped out of school not because his mother had failed to take care of him, but “[b]ecause [he] was engaged in crime. [He] was out there, you know, as they say these days, thuddin'. [He] was doing what a lot of other teenagers do.” Evans also testified about his history of incarceration and some of the details of his crimes. Evans admitted that he was first imprisoned at age 17 and released at age 18. Within seven to nine months after his release,...

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