Reed v. Secretary, Florida Dept. of Corrections

• Decision Date: 11 January 2010
• Docket Number: No. 09-10059.,09-10059.
• Citation: 593 F.3d 1217
• Parties: Grover REED, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

593 F.3d 1217

Grover REED, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, Respondents-Appellees.

No. 09-10059.

United States Court of Appeals, Eleventh Circuit.

January 11, 2010.

Martin J. McClain (Court-Appointed), Wilton Manors, FL, for Reed.

Charmaine M. Millsaps, Tallahassee, FL, for Respondents-Appellees.

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

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

HULL, Circuit Judge:

Florida death-row inmate Grover Reed appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court granted Reed a certificate of appealability ("COA") on his claim that his trial counsel was constitutionally ineffective for failing to investigate and present mitigation evidence at the penalty phase. After review and oral argument, we affirm the denial of Reed's § 2254 petition.

I. BACKGROUND

A. Crime and Arrest

In December 1985 Reed, age 24, and his girlfriend and two children moved to Jacksonville, Florida. They were homeless. As a result, Lutheran minister Rev. Ervin Oermann and his wife Betty Oermann invited Reed and his family to stay in the Oermanns' home. See Reed v. State, 560 So.2d 203, 204 (Fla.1990) ("Reed I"). After a little more than a week, though, the Oermanns discovered Reed had drug paraphernalia in their home, and the Oermanns asked Reed and his family to leave. Id. Rev. and Mrs. Oermann continued to help Reed by giving him money and transportation, but eventually stopped after they began to feel they were being used. Id. Reed "resented the discontinuance of aid and vowed to get even." Id.

On the evening of February 27, 1986, while Rev. Oermann was away from home at a night class, Reed raped and murdered Mrs. Oermann (age 57). Rev. Oermann returned home to find her body. An autopsy revealed Mrs. Oermann had been strangled, raped, and stabbed repeatedly in the throat. After an investigation linked Reed to evidence found at the crime scene, he was arrested.

B. Indictment and Pre-trial Proceedings

In July 1986, Reed was indicted for first-degree murder, sexual battery, and armed robbery. Assistant public defender Alan Chipperfield initially represented Reed but became conflicted out. In August 1986, the state trial court appointed Richard Nichols, a private criminal defense attorney, to represent Reed.

In October 1986, Reed underwent a psychiatric evaluation to determine, inter alia, whether Reed suffered from mental illness or mental retardation, the nature and extent of any such mental illness or retardation, Reed's competence to stand trial, and Reed's sanity at the time of the crimes. Psychiatrist Dr. Ernest Miller evaluated Reed and filed a report with the state trial court. Social worker Karen Kaldor, M.S.W., co-authored Dr. Miller's October 30, 1986 report.

The report indicated Dr. Miller reviewed "extensive background information furnished by Mr. Nichols," including copies of Reed's medical records from Hendersonville Community Hospital ("Hendersonville Hospital"), Metropolitan Nashville General Hospital ("Nashville General"), and the Middle Tennessee Mental Health Institute ("Middle Tennessee MHI"). Dr. Miller obtained Reed's history and performed mental status tests. Because of Reed's history of inhaling gas fumes and lead poisoning, Dr. Miller had Reed undergo neurological tests, including a 21-channel electroencephalogram test on October 20, 1986.

Dr. Miller's report detailed Reed's background and physical and mental condition. The report stated that Reed understood the purpose of the examination, the charges against him, his pleading options, and "the role of the various court officers." Reed claimed complete recollection of his circumstances on the day of Mrs. Oermann's murder, and told Dr. Miller he had ten alibi witnesses. As to Reed's family, educational, social, and vocational history, the report noted that Reed: (1) was removed from his mother's custody because of her alcoholism when he was four years old; (2) was raised primarily by his grandparents, and his mother shot and killed his father in self-defense; (3) had an eighth grade education, at which point he left school to work in a sawmill because his family needed money; (4) had a girlfriend, a child, and many friends; (5) was a self-described "jack of all trades" who had worked as a concrete worker and in the steel and oil industries; and (6) had no military service history.

As to Reed's medical and psychiatric history, Dr. Miller reported that Reed: (1) denied a family history of mental illness, epilepsy, or suicide; (2) denied suffering from diseases; (3) suffered a fractured bone in his face from being struck with a pool cue; and (4) was evaluated and treated in 1981 at Nashville General and Middle Tennessee MHI for "lead encephalopathy related to the inhalation of gas fumes," but denied any other mental health care.

Although Reed drank heavily seven years before Dr. Miller's evaluation, Reed told Dr. Miller that he "slacked off after a period of treatment for this," and denied having a drinking problem anymore. Reed admitted huffing gasoline in the past but denied using other drugs except "occasional marijuana." Reed reported "seizures associated with his inhalation of gas fumes."

As noted earlier, Nichols gave Dr. Miller extensive hospital and medical records. They indicated that in 1979 Reed underwent two "uneventful" days of treatment at Hendersonville Hospital for "a fracture of facial and orbital bones." In November 1981, Reed was treated at Nashville General for "lead intoxication [and] multiple substance abuse." Reed was transferred from Nashville General to Middle Tennessee MHI, where he was diagnosed with "Lead Encephalopathy due to Chronic Lead Poison" and "Seizure Disorder caused by Valium Withdrawal and/or Lead Encephalopathy." The medical records noted that: (1) Reed had a history of "abusive behavior and combativeness at home"; (2) Reed indicated he "can't control [his] nerves"; and (3) his family reported that Reed had a "long history of confusion, short attention span, and bizarre behavior when high on gasoline— fighting trees and garage door, screaming—but no bizarre behavior when not high."

Given his past lead encephalopathy related to gas fumes, Dr. Miller had Reed undergo neurological tests. For example, the October 20, 1986 electroencephalograph report, which Dr. Miller ordered, showed that Reed was examined with a "21-channel encephalograph with 20 scalp and 2 reference electrodes, using 10-20 system of I.F.E.S. 3 montages including both serial and linked pairs of electrodes." During the test, Reed was awake, relaxed, and cooperative, and was not sedated. The electroencephalogram recorded Reed's frontal, temporal, central, parietal, and occipital waking bandwidth. Reed had normal regulation, symmetry, and synchrony results. The encephalographic report concluded with Dr. Miller's assessment: "Normal waking electroencephalogram. No paroxysmal sequences, no regional abnormalities."

Dr. Miller's report concluded that Reed was of average native intelligence and his cognitive faculties were intact. The report also concluded that Reed had "a fair general fund of information"; was "well able to use verbal and mathematical abstractions"; had a good ability to register, store, and retrieve data; and was "not hallucinated or delusional." The report noted that Reed had "[n]o pathologic reflexes" and his "motor, sensory and cerebellar functions [were] normal." The report further advised that Reed was competent to stand trial, and that he "was able to understand the nature, quality and wrongfulness of his acts" at the time of the crimes. The state trial court, in turn, found Reed competent to stand trial.

C. Guilt Phase

The parties selected a jury on November 17, 1986. The guilt phase of Reed's trial began the next day and lasted three days. The State called fourteen witnesses. One key piece of physical evidence was Reed's baseball cap, which was found under a table near Mrs. Oermann's body. Witnesses testified they saw Reed wearing his baseball cap on the day of the murder before the probable time of death, but not afterwards. They "positively identified the cap as Reed's because of the presence of certain stains and mildew." Reed I, 560 So.2d at 204. Reed's fingerprints were on checks that were taken from the Oermann home and found in their yard. Id. An expert witness testified that hairs found on Mrs. Oermann's body and in the baseball cap were consistent with Reed's hair. Id. Another expert testified that the semen found in Mrs. Oermann's body could have been Reed's. Id. And Reed's cellmate, Nigel Hackshaw, testified that Reed admitted breaking into the Oermann home and killing Mrs. Oermann. Id.

Reed decided not to testify or to present evidence in the guilt phase.¹ On November 20, 1986, the jury found Reed guilty of first degree murder, sexual battery, and robbery with a deadly weapon.

D. Penalty Phase Before the Jury

After the verdict, the state trial court excused the jurors until the penalty phase, which was scheduled to begin the following week. For various reasons, Nichols made a strategic decision to pursue a penalty-phase strategy of residual doubt and to present no evidence in the penalty phase.²

Reed had prior convictions. But the State agreed not to introduce any evidence before the jury of any of Reed's prior criminal acts if Reed stipulated that he would not argue the statutory mitigating factor of no significant prior criminal activity.³ Both Reed and the State ultimately agreed they would (1) rest on the evidence adduced during the guilt phase, (2) submit no evidence at the penalty phase, and (3) proceed with closing arguments.

The parties informed the state trial court of their stipulation at the outset of the November 26, 1986 penalty phase. The state trial court questioned counsel about the...