Philmore v. McNeil

• Decision Date: 23 July 2009
• Docket Number: No. 07-13637.,07-13637.
• Parties: Lenard PHILMORE, Petitioner-Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

575 F.3d 1251

Lenard PHILMORE, Petitioner-Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 07-13637.

United States Court of Appeals, Eleventh Circuit.

July 23, 2009.

James Vincent Viggiano (Court-Appointed), Tampa, FL, for Petitioner-Appellant.

Leslie T. Campbell, West Palm Beach, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

Lenard Philmore ("Philmore"), a Florida death row prisoner, appeals the district court's denial of habeas corpus relief under 28 U.S.C. § 2254. Philmore received the death penalty for the 1997 murder of Kazue Perron, whom he kidnapped and killed in order to use her vehicle for a bank robbery. After careful consideration of all the evidence and the parties' arguments, we AFFIRM.

I. BACKGROUND

On 14 November 1997, Philmore carjacked at gunpoint a gold Lexus driven by Kazue Perron ("Perron") in Palm Beach, Florida. Philmore v. State, 820 So.2d 919, 923-24 (Fla.2002) (per curiam). Philmore and his co-defendant Anthony Spann ("Spann") planned to use the Lexus as the getaway vehicle in a bank robbery. Id. at 923. Spann had previously told Philmore they would have to kill the driver. Id. Philmore drove with Perron to an isolated area, with Spann following behind in a Subaru. Id. at 924. En route, Philmore took Perron's rings and placed them in the automobile's armrest. Id. After stopping at a side road, Philmore ordered Perron to exit the Lexus and walk towards some tall brush. Id. Perron protested and Philmore shot her once in the head. Id. Philmore disposed of her dead body in the brush. Id.

Philmore and Spann then drove to a bank in Indiantown. Id. While Spann waited in his Subaru, Philmore robbed a bank teller of $1100. Id. Afterwards, Philmore put on Spann's shirt and discarded his own tank top by the roadside. Id. Authorities later recovered Philmore's tank top, which contained Perron's blood. Id. Philmore and Spann concealed the Subaru and returned to Palm Beach County in the stolen Lexus. Id. Later that day, a West Palm Beach police officer recognized Spann from an outstanding arrest warrant on an unrelated matter. Id. at 924-25. Spann and Philmore led the officer on a high-speed chase until a tire blew out on the Lexus. Id. at 925. The two men abandoned the vehicle and fled into an orange grove. Id. The police captured them and charged them with armed trespass. Id. Firearms were subsequently recovered from a creek in the orange grove. Id.

On 15 November 1997, Detective Gary Bach, who was investigating the Indiantown bank robbery, interviewed Philmore after Philmore agreed to waive his Miranda¹ rights. Id. at 927. Philmore admitted he was in the bank that had been robbed and he was in the Subaru after the bank robbery. Id. The interview ended when Philmore stated he wanted to talk with an attorney first and then speak with Detective Bach again. Id. That same day, Philmore was charged with the bank robbery and was appointed counsel, John Hetherington. Id. at 927 n. 13.

Philmore made a series of statements to the police in Hetherington's presence from 18 November through 26 November 1997, ultimately confessing to the bank robbery as well as to Perron's kidnapping and murder. Id. at 927. Philmore also talked to the police during two polygraph examinations without Hetherington being present. Id. Philmore signed a waiver of his Miranda rights before providing each statement. Id. On 21 November, Philmore showed the police where he had disposed of Perron's body. Id. at 925.

On 16 December 1997, Philmore agreed, in Hetherington's presence, to tell the grand jury of his involvement in Perron's abduction and shooting. Id. at 927. Philmore was indicted that same day for the first-degree murder of Perron, conspiracy to commit robbery with a deadly weapon, carjacking with a deadly weapon, kidnapping, robbery with a deadly weapon, and third-degree grand theft. Hetherington remained Philmore's counsel until December 1998, when the court appointed Thomas Garland ("Garland") and Sherwood Bauer to represent Philmore.

In January 2000, a jury convicted Philmore on all counts. In accordance with the jury's unanimous recommendation of death, the trial court sentenced Philmore to death for the first-degree murder of Perron; fifteen years of imprisonment for conspiracy to commit robbery with a deadly weapon; life imprisonment for carjacking with a deadly weapon, kidnapping, and robbery with a deadly weapon; and five years of imprisonment for third-degree grand theft. See Philmore, 820 So.2d at 926 n. 10. The Florida Supreme Court affirmed Philmore's convictions and death sentence on direct appeal. See id. at 940. The Florida Supreme Court subsequently affirmed the denial of Philmore's motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851, and denied his petition for a writ of habeas corpus. See Philmore v. State, 937 So.2d 578, 580 (Fla.2006) (per curiam).

In September 2006, Philmore filed this federal habeas corpus petition pursuant to 28 U.S.C. § 2254, in which he raised nineteen claims for relief. Following oral argument, the district court denied relief in July 2007. The district court granted a certificate of appealability on all issues but Philmore raises only four claims on appeal: (1) ineffective assistance of counsel by Hetherington; (2) trial court error in granting a peremptory strike, and ineffective assistance of counsel by Garland in not challenging the strike; (3) ineffective assistance of counsel by Garland in not calling Dr. Michael Maher as a witness during the penalty phase to testify that Philmore suffered from an extreme mental or emotional disturbance; and (4) trial court error in ignoring the testimony of Dr. Frank Wood on the issue of whether Philmore qualified for the statutory mitigator of an extreme mental or emotional disturbance.

II. DISCUSSION

When analyzing a district court's denial of a § 2254 habeas petition, we review de novo questions of law as well as mixed questions of law and fact. See Hannon v. Sec'y, Dep't of Corr., 562 F.3d 1146, 1150 (11th Cir.2009). In order to obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), Philmore must show that the state court decision adjudicating his claims (1) was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedents, or (2) unreasonably determined the facts in light of the evidence presented in the state courts. See id. (citing 28 U.S.C. § 2254(d)). To garner relief under the first prong, the state court's application of Supreme Court precedent must have been "objectively unreasonable," not merely incorrect or erroneous. Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (quotation marks and citation omitted). In assessing the second prong, we bear in mind that a state court's factual findings are presumed correct and may only be rebutted by clear and convincing evidence. See Hannon, 562 F.3d at 1150.

A. Ineffective Assistance of John Hetherington

Philmore contends that Hetherington deprived him of the effective assistance of counsel prior to his being charged for Perron's murder. According to Philmore, Hetherington actually assisted law enforcement in solving the murder case. Before Hetherington's appointment, law enforcement knew only that Philmore was involved in a trespass and the Indiantown bank robbery. Philmore contends that, without first conducting any independent investigation or securing a concession, Hetherington foolishly advised Philmore to cooperate with the police and give statements in counsel's absence. Hetherington's actions, Philmore maintains, ensured Philmore's murder conviction and death sentence. Consequently, Philmore asserts that Hetherington's performance fell not only below the standards of effective counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also below those set forth in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

Philmore first raised a claim of ineffective assistance of counsel against Hetherington in a pretrial motion to suppress Philmore's incriminating statements. See Philmore, 820 So.2d at 927. Specifically, Philmore contended that Hetherington had deprived him of his Sixth Amendment right to the effective assistance of counsel because Hetherington did not protect Philmore's right to remain silent. See Philmore, 820 So.2d at 927. Additionally, Philmore asserted that he did not make his statements freely and voluntarily because he believed that he would not be subject to the death penalty if he gave a full and honest statement. See id. Following an evidentiary hearing at which Hetherington testified, the trial court found that Philmore's statements made in counsel's presence during November 1997 were freely and voluntarily given without any promises, threats, or coercion. See id. However, the trial court granted the motion to suppress with respect to any statements Philmore made in the polygraph room outside of Hetherington's presence. See id. at 928. The trial court also later denied the motion to suppress in relation to Philmore's grand jury testimony on 16 December 1997. See id.

In his direct appeal, Philmore argued that the trial court erred in denying the motion to suppress on grounds that: (1) his statements were not freely and voluntarily given under the Fifth Amendment, and (2) Hetherington had provided ineffective assistance of counsel under the Sixth Amendment in allowing him to make the statements. See id. at 926. The Florida Supreme Court concluded that Philmore's Fifth Amendment rights had not been violated. See id. at 928. Not only had there been no quid pro quo bargain for Philmore's...