Hayes v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 25 August 2021
• Docket Number: No. 19-10856,19-10856
• Citation: 10 F.4th 1203
• Parties: Damion HAYES, Petitioner - Appellee, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents - Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

10 F.4th 1203

Damion HAYES, Petitioner - Appellee,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents - Appellants.

No. 19-10856

United States Court of Appeals, Eleventh Circuit.

August 25, 2021

William R. Ponall, Ponall Law, PA, Maitland, FL, for Petitioner-Appellee.

Donna S. Koch, Ashley Moody, Attorney General's Office, Criminal Division, Tampa, FL, for Respondent-Appellant.

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

JORDAN, Circuit Judge.

Damion Hayes is serving a life sentence in Florida following his convictions for attempted first-degree murder with a deadly weapon and armed trespassing. The convictions resulted from Mr. Hayes attacking and stabbing one of his neighbors, apparently without motive or provocation.

The district court granted Mr. Hayes habeas corpus relief in the form of a new trial, concluding that his counsel had rendered ineffective assistance by withdrawing an insanity defense on the first day of trial. The Secretary of Florida's Department of Corrections appeals, arguing that Mr. Hayes is not entitled to habeas relief under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and 28 U.S.C. § 2254(d).

Following oral argument and a review of the record, we conclude based on Knowles v. Mirzayance , 556 U.S. 111, 127-28, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), that the district court applied an incorrect prejudice standard in analyzing Mr. Hayes’ ineffectiveness claim. In our view, Mr. Hayes has not met his burden under the proper prejudice standard and so is not entitled to habeas relief. We therefore reverse.

I

On the morning of January 23, 2002, Mr. Hayes attacked one of his neighbors without any provocation or apparent motive. The victim—who was 60 at the time—testified that she had never met Mr. Hayes, who lived down the street from her. Mr. Hayes did not ask her for money, did not say anything, and just "came at [her]." D.E. 34 at 2.

Using a knife, Mr. Hayes cut the victim in her throat, chest, arms, face, and head. He also beat her, causing her to suffer a concussion and lapse into a coma. See id. Shortly after the attack, Mr. Hayes was seen burning items in his backyard. Clothing recovered from the burn pile contained the victim's blood. The evening after the attack, Mr. Hayes confided in his cousin that "God made him do it." Id. at 2-3.

A

Florida charged Mr. Hayes, then 20 years old, with attempted first-degree murder with a deadly weapon and armed trespassing. Mr. Hayes was evaluated several times prior to trial, found incompetent to proceed, and transferred to a state mental health facility in July of 2003. After months of treatment, the facility's psychology department and two court-appointed psychiatrists, Drs. Donald R. Taylor, Jr. and Sidney Merin, concluded that Mr. Hayes was competent to proceed to trial. See D.E. 34 at 3. A third psychologist, Dr. Michael Gamache, found it "very difficult to arrive at any firm conclusions regarding Mr. Hayes’ condition at the ... time" due to his lack of cooperation. See D.E. 7, Order Denying Claim, Def. Exh. 8, at 874. Nevertheless, Mr. Hayes’ competence and mental state continued to be in question, with his counsel remarking at a March 2004 hearing that "it's amazing to me totally that they have decreed that he is competent." D.E. 34 at 3. During a hearing in November of 2004, the trial court noted the reports of the doctors. Although "understanding [counsel's] dilemma," it found Mr. Hayes competent to stand trial. Id. at 4-5.

In December of 2004, counsel filed a notice of intent to rely on an insanity defense. The notice listed several witnesses, including Mr. Hayes’ parents and medical professionals who had evaluated Mr. Hayes since his arrest. At a hearing in February of 2005, counsel renewed his objection to the trial court's finding that Mr. Hayes was competent to proceed to trial. The court responded that it had previously found Mr. Hayes competent—based on the opinions of three examining physicians—and that its conclusion had not changed. Counsel then noted that "[t]here is a defense of insanity at the time." Id. at 5. But he never obtained an expert opinion regarding Mr. Hayes’ sanity at the time of the charged offenses.¹

On February 23, 2005—the first day of trial—the prosecution announced that Mr. Hayes had withdrawn his insanity defense. See id. Mr. Hayes’ counsel told the trial court that "on the 17th of [February of 2005,] ... in this very courtroom I explained to [Mr. Hayes] in detail on the record ... the notice of intent to rely upon the defense of insanity that I had filed ... and he indicated that he wanted to proceed with a not guilty plea and at that time I withdrew that notice." Id. at 26.²

Mr. Hayes’ counsel did not call any witnesses at trial. He instead attempted to present a misidentification defense through cross-examination. But the prosecution's evidence against Mr. Hayes was significant: (1) the victim identified him as the perpetrator; (2) Mr. Hayes’ cousin testified that Mr. Hayes admitted that "God made him do it;" (3) Mr. Hayes burned his clothes on the night of the attack; (4) and the victim's blood was found in clothes at the burn pile. See id. at 5.

Following the prosecution's case-in-chief, Mr. Hayes’ counsel moved for a judgment of acquittal only as to the attempted first-degree murder charge. Counsel argued that the prosecution had not introduced evidence that the attack was premeditated, particularly given that "[t]here was no provocation for the act." The prosecution responded that Mr. Hayes could not argue that he lacked the requisite state of mind because he had not introduced evidence "of any type of mental health issues [or] problems." The trial court denied the motion for judgment of acquittal and the jury found Mr. Hayes guilty of first-degree attempted murder with a deadly weapon and armed trespassing. After his conviction, Mr. Hayes obtained new counsel.

At the sentencing hearing, Mr. Hayes’ new counsel called Dr. Michael Scott Maher, who testified about the extensive evidence of Mr. Hayes’ past and present mental illnesses. Before announcing its sentence, the trial court stated that it "ha[d] no doubt in [its] mind that [Mr. Hayes] has mental problems" and that he is "mentally disturbed." D.E. 7, Exh. 1, Vol. III at 142. Citing concerns that Mr. Hayes would repeat such a violent offense, however, the court sentenced him to life imprisonment. See id. at 143.

B

After his convictions and sentence were affirmed on direct appeal, see Hayes v. State , 976 So.2d 1106 (Fla. 2d DCA 2008) (table), Mr. Hayes filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Among other things, Mr. Hayes argued that his original trial counsel was ineffective for abandoning the insanity defense. Mr. Hayes asserted that the trial record—and in particular the fact that he was deemed incompetent to proceed for a time—demonstrated that he was mentally ill. He also argued that the record did not support counsel's representation on the first day of trial that he did not want to pursue an insanity defense. And even if he had not wanted to pursue an insanity defense, Mr. Hayes maintained, counsel's abandonment of the defense was unreasonable under the circumstances. He asserted that, had the insanity defense been presented, there was a reasonable probability that the jury would have reached a verdict of not guilty. The post-conviction court summarily denied the Rule 3.850 motion.

On appeal, the Second District Court of Appeal reversed. See Hayes v. State , 56 So. 3d 72 (Fla. 2d DCA 2011) (per curiam). Although the record suggested that counsel was following Mr. Hayes’ wishes in abandoning the insanity defense, there was nothing indicating that counsel thoroughly discussed that decision with Mr. Hayes. See id. at 73. The Second District observed that, "in light of [Mr.] Hayes’ history of mental illness, the evidence against him, and his fragile mental state prior to trial," it was not clear that counsel's decision to withdraw the defense was reasonable. See id. at 74. As to prejudice, the Second District explained that insanity was likely Mr. Hayes’ only viable defense. See id. at 74. It therefore remanded to the post-conviction court with instructions to "hold an evidentiary hearing to determine whether counsel's abandonment of the insanity defense was reasonable under the specific facts of this case." Id.

The post-conviction court then held an evidentiary hearing, at which Mr. Hayes introduced several exhibits. These included medical reports from Drs. Merin and Taylor, and records from the state hospital where Mr. Hayes remained during the time he was deemed incompetent to stand trial.

Mr. Hayes also called his trial counsel as a witness at the hearing. See D.E. 7, Order Denying Claim, Transcript of Proceedings, at 714-32. Counsel testified that he had concerns about Mr. Hayes’ mental capacity throughout the case, leading him to file motions requesting that Mr. Hayes’ competency be evaluated. Counsel also confirmed that he initially filed a notice of intent to rely on an insanity defense, but said he subsequently abandoned that defense at Mr. Hayes’ request. He stated that his decision was a tactical one.

Counsel explained that he had an on-the-record colloquy with Mr. Hayes and the trial court during which Mr. Hayes expressed his desire not to pursue a defense of not guilty by reason of insanity. Counsel said that he spoke with Mr. Hayes personally prior to the colloquy, and that Mr. Hayes "was firm in his position that he was not guilty." Counsel also stated that he had "very little specific recollection" prior to his memory being refreshed by the transcript.

When asked whether he thought Mr. Hayes understood the difference between a standard not-guilty plea and a defense of not guilty by reason of insanity, counsel responded: "Well, you know, that's very hard for me to divine." He noted that "at least [one...