Kearse v. Sec'y, Fla. Dep't of Corr.
| Decision Date | 25 August 2022 |
| Docket Number | 15-15228 |
| Parties | BILLY LEON KEARSE, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
BILLY LEON KEARSE, Petitioner-Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees.
No. 15-15228
United States Court of Appeals, Eleventh Circuit
August 25, 2022
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:09-cv-14240-WJZ
Before WILSON, LUCK, and ED CARNES, Circuit Judges.
OPINION OF THE COURT
LUCK, Circuit Judge:
Billy Kearse was convicted and sentenced to death for the 1991 murder of police officer Danny Parrish. Thirty years later, Kearse appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. section 2254. He contends that the Florida Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984) in denying claims that his trial counsel was ineffective because he failed to investigate and prepare for the testimony of the state's mental health expert and he failed to investigate and present evidence of Officer Parrish's prior misconduct and difficulties dealing with the public. Kearse also contends that the Florida Supreme Court unreasonably applied Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005) in concluding that his death sentence was not cruel and unusual even though he had low-level intellectual functioning, mental and emotional impairments, and was eighteen years and eighty-four days old at the time of the murder. After careful review of the briefs and the record, and with the benefit of oral argument, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Murder
On the night of January 18, 1991, Kearse and his friend, Rhonda Pendleton, decided to pick up some pizza. On their way back to Pendleton's home in Fort Pierce, Florida, Kearse drove the wrong way down a one-way street. Officer Parrish saw Kearse driving the wrong way and pulled him over for a traffic stop. Kearse couldn't give Officer Parrish a valid driver's license because he didn't have one and he lied about his name and date of birth. Officer Parrish told Kearse that he would write Kearse three tickets and let him go if Kearse would tell him his real name.
Kearse kept lying about his name, so Officer Parrish told Kearse to get out of the car and put his hands on top of it. When Officer Parrish went to handcuff Kearse, Kearse told Officer Parrish not to touch him and called Officer Parrish a "lying ass pig" and said "I'm not going no mother fuckin' where with you." At some point, Officer Parrish accidentally hit Kearse below the eye with his handcuffs while trying to control Kearse. A physical struggle followed during which Kearse snatched Officer Parrish's service pistol.
Kearse shot Officer Parrish, causing Officer Parrish to fall back. Kearse briefly paused while Officer Parrish pleaded for his life-"Come on, man, don't do it, don't do it"-before firing off another round of bullets. He fired again and again and again and again and again and again and again and again and again and again
and again-a total of thirteen bullets into Officer Parrish, killing him.
Kearse kept Officer Parrish's pistol, drove Pendleton home, and flattened his car's tire "[t]o keep the police off [him]." He told Pendleton that he killed Officer Parrish because he was on probation, he wasn't sure if there was a warrant out for his arrest, and he didn't want to go back to prison so soon after his release the month before. Kearse was arrested later that night and confessed that he shot Officer Parrish.
The Trial
The State of Florida charged Kearse with first-degree murder and robbery with a firearm. Robert Udell, a defense attorney experienced with capital cases, was appointed to defend Kearse.
After a week-long trial in October 1991, the jury convicted Kearse on both counts. As required by Florida's capital-sentencing statute, the state trial court then held a separate sentencing hearing in front of the jury. The jury recommended that Kearse be sentenced to death, and the state trial court sentenced Kearse to death consistent with the jury's recommendation. The Florida Supreme Court affirmed Kearse's convictions but remanded for resentencing because of "errors relate[d] to the penalty phase instructions and the improper doubling of aggravating circumstances." Kearse v. State, 662 So.2d 677, 685, 686 (Fla. 1995).
Resentencing
Resentencing was set for Monday, December 9, 1996. Thirteen days before the resentencing hearing, the state moved to have its mental health expert, Dr. Daniel Martell, examine Kearse. In response, Mr. Udell moved to continue the resentencing or to strike Dr. Martell as a witness. Mr. Udell argued that he only heard about the state's intent to use Dr. Martell as an expert witness after the state responded to a discovery demand on November 30. And he said he could not attend Dr. Martell's examination on the state's proposed dates because of scheduling conflicts. Mr. Udell also moved to: (1) limit the use of any information gathered from the examination; (2) declare unconstitutional Florida Rule of Criminal Procedure 3.202-the newly established rule that permitted the state to examine Kearse;[1] (3) prohibit application of rule 3.202; and (4) limit the scope of the examination.
On December 3, 1996, the state trial court held a hearing on Mr. Udell's motions. The state trial court granted the state's motion to examine Kearse and set the examination for December 5,
the Thursday before the December 9 resentencing. The state trial court denied Mr. Udell's motion to continue resentencing or to strike Dr. Martell as a witness, and deferred ruling on his other motions.
At the start of resentencing on December 9, Mr. Udell renewed his motion to continue or to strike Dr. Martell as a witness. Mr. Udell explained that three days earlier the state gave him "a copy of the raw data that Dr. Martell generated as a result of his mental health evaluation of [Kearse]" and that the data was "on its way to [Kearse's] experts for their review." But Mr. Udell wanted more time so he could research Dr. Martell's prior publications and expert opinions. The state trial court denied the motion, concluding there were no grounds for a continuance and explaining that Mr. Udell could depose Dr. Martell in the evening or over a weekend.
Under Florida's capital-sentencing statute, the jury was required to consider whether at least one "aggravating circumstance" existed and, if so, whether there were sufficient "mitigating circumstances" to outweigh the aggravating circumstances the jury found. See Fla. Stat. § 921.141(2) (1996). Mr. Udell sought to prove three statutory mitigating circumstances at resentencing: (1) the murder was committed while Kearse was under the influence of extreme mental or emotional disturbance; (2) Kearse's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; and (3) Kearse's age at the time of the murder. See id. § 921.141(6)(b),
(f), (g). Mr. Udell also sought to prove forty non-statutory mitigating circumstances, including twenty-one related to Kearse's mental health.[2]
Mr. Udell called three mental health experts to prove the statutory and non-statutory mitigating factors related to Kearse's mental health.
Kearse's mental health experts' testimony
1. Pamela Baker
Pamela Baker, a licensed mental health counselor, first met Kearse in 1981. Mrs. Baker worked with children who had been referred to the state as abused, neglected, or ungovernable. Kearse was referred to Mrs. Baker as an ungovernable child because he left home without telling anyone and was having problems with his behavior and attendance at school. Kearse was only eight years old at the time, which was unusual because most children referred to the state were much older. Mrs. Baker explained that Kearse was committed to a county program for a few months and then returned to his mother's care.
Mrs. Baker's review of Kearse's records revealed that the state was concerned about whether he was suffering abuse at
home. It seemed that Kearse's mother had given up on him and had little interaction with him. Kearse would often hoard food at school events because he was neglected at home, and he didn't want to leave the county program because he was eating better than he ate at home. When Kearse was placed into the county program, he explained that he ran away from home because he got scared when his mother drank alcohol and fought with her boyfriend. Kearse's mother agreed to participate in a state parenting program, but her participation was only superficial.
Mrs. Baker noted that Kearse was a juvenile delinquent by age eight. He committed several offenses over the years, primarily burglaries and petty thefts, but his delinquency records didn't reflect a lot of aggressive behavior; Kearse would typically fight with someone only if they were first aggressive to him.
Mrs. Baker testified that her husband had taught Kearse and that he had no doubt that Kearse was severely emotionally handicapped and "operating at a retarded level." By the time Kearse was thirteen and in the seventh grade, he could spell only two words: "cat" and "run." Mrs. Baker taught Kearse for two years and also had no doubt that he was severely emotionally handicapped. Mrs. Baker never thought Kearse would kill someone, although she did think that about other children she had encountered. She described Kearse as being very hyperactive but not violent.
Mrs. Baker visited Kearse in 1991 after he was jailed for murdering Officer Parrish. During the visit, Kearse discussed his upbringing. He told Mrs. Baker that he was once punished by having
to walk around the block naked in front of his neighbors, that he had been tied to a bed and beaten, and that his mother would beat him with extension cords and coat hangers...
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