Hitchcock v. Sec'y

• Citation: 745 F.3d 476
• Decision Date: 12 March 2014
• Docket Number: No. 12–16158.,12–16158.
• Parties: James HITCHCOCK, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

745 F.3d 476

James HITCHCOCK, Petitioner–Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents–Appellees.

No. 12–16158.

United States Court of Appeals, Eleventh Circuit.

March 12, 2014.

James L. Driscoll, Jr., Capital Collateral Regional Counsel, Tampa, FL, for Petitioner–Appellant.

Mitchell David Bishop, Kenneth Sloan Nunnelley, Attorney General's Office, Daytona Beach, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:08–cv–01719–GAP–KRS.

Before CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

CARNES, Chief Judge:

James Hitchcock, a Florida inmate sentenced to death for the strangulation murder of a thirteen-year-old girl, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that his Eighth and Fourteenth Amendment rights were violated at his latest resentencing proceeding when the state trial court refused to admit and consider, as relevant mitigating evidence, the prosecution's offer to recommend a life sentence in exchange for a guilty plea to first-degree murder, an offer that Hitchcock rejected. He also contends that counsel at the resentencing hearing was ineffective for failing to elicit testimony from the defense's mental health expert about the applicability of two statutory mitigating factors and for failing to seek a neuropsychological evaluation for the presence of possible brain damage.

I.

The lengthy and complicated history of this case dates back thirty-seven years. In the summer of 1976, Hitchcock raped his brother's thirteen-year-old stepdaughter and then strangled her to death after she threatened to report the sexual assault. He was indicted on a single count of first-degree murder and, after rejecting the prosecution's offer to recommend a life sentence in exchange for a guilty plea, was convicted at trial and sentenced to death. The Florida Supreme Court affirmed his conviction and capital sentence on direct appeal, see Hitchcock v. State, 413 So.2d 741 (Fla.1982), and the state courts rejected his initial attempts to obtain post-conviction relief, see Hitchcock v. State, 432 So.2d 42 (Fla.1983).

In May of 1983, Hitchcock filed a federal habeas petition under § 2254, which the district court denied and that denial was affirmed on appeal. See Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985) (en banc). The Supreme Court, however, granted his petition for a writ of certiorari and vacated his death sentence because the penalty phase jury was instructed not to consider, and the sentencing judge refused to consider, evidence of non-statutory mitigating circumstances. See Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987). Following his first resentencing proceeding, which again resulted in a sentence of death, Hitchcock challenged the state trial court's refusal to admit the prosecution's plea offer as relevant mitigating evidence at sentencing. The Florida Supreme Court rejected that challenge on appeal, concluding that the offer was not relevant mitigating evidence under the constitutional rule announced in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), because it had no bearing on Hitchcock's character, record, or the circumstances of his crime. Hitchcock v. State, 578 So.2d 685, 689–91 (Fla.1990), vacated on other grounds by Hitchcock v. Florida, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992).

Hitchcock nevertheless managed to obtain two more penalty phase proceedings, each in its turn resulting in death sentences. After the third death sentence was vacated, see Hitchcock v. State, 673 So.2d 859, 860 (Fla.1996), the fourth and (so far) last sentencing hearing was conductedin September 1996. At that sentencing hearing, the defense called Dr. Jethro Toomer, a clinical and forensic psychologist, who testified that Hitchcock suffered from borderline personality disorder resulting in lifelong “personality difficulties,” which would have affected him at the time of the murder by causing him to act impulsively. Dr. Toomer did not, however, diagnose Hitchcock with any major psychiatric disorder, nor was he specifically asked by defense counsel about the presence of two statutory mitigating circumstances—whether the crime was committed while Hitchcock was under the influence of extreme mental or emotional disturbance, and whether his capacity to appreciate the criminality of his conduct or conform his conduct to the law was substantially impaired. SeeFla. Stat. § 921.141(6)(b), (f) (1996). Defense counsel did argue during closing arguments that Hitchcock was under the influence of extreme mental or emotional disturbance at the time of the offense.

In the 1996 resentencing proceeding, the jury recommended the death penalty by a vote of ten to two and the trial court followed that recommendation, finding that the aggravating circumstances of Hitchcock's crime outweighed the mitigating ones. The court found four statutory aggravating circumstances: (1) the crime was committed while Hitchcock was under a sentence of imprisonment; (2) he committed the crime while engaged in the felony of sexual battery; (3) the crime was committed for the purpose of avoiding arrest; and (4) the crime was especially heinous, atrocious, or cruel. The trial court found only one statutory mitigating circumstance, that Hitchcock was 20 years old at the time of the murder, and several non-statutory mitigating circumstances, which it gave comparatively little weight. The non-statutory mitigating circumstances found by the trial court included that Hitchcock was under the influence of lifelong personality difficulties at the time of the offense, that he suffered from borderline personality disorder, and that the offense resulted from an unplanned, impulsive act. The Florida Supreme Court affirmed the death sentence on appeal and, in doing so, again rejected Hitchcock's contention that the sentencing judge erred in excluding evidence of the prosecution's rejected plea offer. See Hitchcock v. State, 755 So.2d 638, 645 (Fla.2000). The court explained that the claim was barred because it had been considered and rejected on the merits during Hitchcock's appeal from his first resentencing proceeding. Id.

In 2001 Hitchcock filed a state motion for post-conviction relief from his latest death sentence, contending, among other things, that counsel at his sentencing proceeding was ineffective for failing to (1) specifically elicit testimony from Dr. Toomer about the presence of the two statutory mental health mitigators and (2) have him evaluated by a neuropsychologist for indications of organic brain damage. After holding an evidentiary hearing, which was marked by conflicting expert testimony about the presence, extent, and influence of possible brain damage, the state trial court rejected the claims of ineffective assistance of counsel on the merits.

The Florida Supreme Court affirmed the denial of post-conviction relief, concluding that Hitchcock was not prejudiced by his counsel's failure to ask Dr. Toomer for his ultimate opinion about the applicability of the statutory mental health mitigators in light of “the extensive mitigation that was presented” at resentencing, including Dr. Toomer's testimony that Hitchcock was experiencing the effects of borderline personality disorder at the time of the offense, and “the extremely weighty aggravators proven in this case.” Hitchcock v. State, 991 So.2d 337, 356–58 (Fla.2008). The Florida Supreme Court further found that counsel's failure to seek a neuropsychological evaluation was neither deficient nor prejudicial given the “conflicting expert testimony presented” during the post-conviction hearing, the speculative nature of Hitchcock's contention that he suffered from brain damage at the time of the murder, and the “extremely weighty” aggravating factors in the case. Id. at 360. The court also noted that several mental health experts had testified about “Hitchcock's normal intelligence, lack of mental illness, and positive adaptation to prison life.” Id. at 360–61.

Hitchcock filed his current federal habeas petition in October 2008, reiterating his claims challenging his 1996 death sentence. The district court denied the § 2254 petition but granted Hitchcock a certificate of appealability (COA) on his claim that evidence of the prosecution's plea offer was improperly excluded during his last resentencing proceeding. We later expanded the COA to include Hitchcock's two claims of ineffective assistance of resentencing counsel.

II.

We review de novo the denial of a federal habeas petition. Jamerson v. Sec'y for Dep't of Corr., 410 F.3d 682, 687 (11th Cir.2005). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may not grant habeas relief on a claim adjudicated on the merits in state court unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law” refers only to the legal principles embodied in the holdings of the United States Supreme Court. See Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 1173, 175 L.Ed.2d 1003 (2010); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). And a state court's application of clearly established federal law cannot be deemed unreasonable unless “no ‘fairminded jurist’ could agree” with the state court's conclusion. Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir.2012) (quoting Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)).

A.

Hitchcock contends that he was deprived of his constitutional right to present relevant mitigating evidence at his 1996 resentencing when the state trial court excluded from evidence and refused to consider the State's pretrial...