Rose v. Mcneil
| Decision Date | 04 March 2011 |
| Docket Number | No. 10–11848.,10–11848. |
| Citation | 634 F.3d 1224 |
| Parties | Milo A. ROSE, Petitioner–Appellant,v.Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Bjorn Erik Brunvand, Bjorn E. Brunvand, P.A., Clearwater, FL, for Milo Rose.Milo A. Rose, Raifrod, FL, pro se.Carol M. Dittmar, Robert J. Krauss, Tampa, FL, for Secretary, Fla. Dept. of Corrections.Appeal from the United States District Court for the Middle District of Florida.Before CARNES, HULL and MARTIN, Circuit Judges.HULL, Circuit Judge:
Milo A. Rose, a Florida prison inmate under a death sentence, appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The sole issue on appeal is whether Rose's trial counsel was ineffective in the investigation and presentation of mitigation evidence at the penalty phase. After review and oral argument, we affirm.
Rose was convicted and sentenced to death for the brutal murder of Robert C. “Butch” Richardson, the son of Rose's girlfriend. Multiple witnesses saw Rose kill Richardson by repeatedly smashing his head with a concrete block. Rose admitted to two acquaintances that he killed Richardson.1 Rose was arrested the day after Richardson's October 18, 1982 murder.
Assistant public defenders Wayne Shipp and Ronald Eide initially represented Rose. In January 1983, Rose moved pro se to dismiss Shipp and Eide, who then moved to withdraw. The state trial court granted their motion. Two different private attorneys then represented Rose, but each withdrew after a few weeks. On March 31, 1983, the state trial court appointed attorney Darryl Rouson, who represented Rose at trial.2
Rouson found that Rose “absolutely was a difficult client to represent.” It was apparent to Rouson “after talking with [Rose] a few times why some of the other lawyers jumped off the case.” Rose's trial was to begin on April 11. Rouson wanted to continue the trial, but Rose refused to waive his speedy trial rights and wanted to go to trial as scheduled. Rouson moved to withdraw but ultimately convinced Rose to let the trial be continued to allow time for discovery. The state trial court re-set the trial for June 27, 1983.
To prepare, Rouson received and reviewed files from Rose's previous attorneys, including all depositions and investigative materials.3 Rouson interviewed Rose, visited Rose's girlfriend Barbara Richardson (the victim's mother), and talked with witnesses on the phone. Rouson visited the crime scene, researched legal issues, and attended a criminal defense conference. 4 Rouson prepared for the penalty phase in the course of preparing for trial.5 Rouson looked at both potential mitigating and aggravating factors, because Rouson wanted “to anticipate what the state is going to allege is aggravating and try to make it out to be mitigating or try to look at it to see if there is a positive side to it or if there is something that I can argue that can make what might be aggravating on its face mitigating in substance at least.”
Rouson acknowledged that having family members testify about Rose's childhood and life was important. Rose, however, told Rouson his family would not testify or “stand up in his behalf” and their testimony would not be helpful.
On June 23, 1983 (four days before the guilt phase began), the state trial court granted Rouson's motion to appoint a psychologist (Dr. Vincent Slomin) to assess Rose's competency and help with possible defenses, including mitigation evidence for the penalty phase. Rouson was concerned about Rose's competency because Rose was “absolutely adamant” that he was not present at the crime scene. Although Rouson spoke to Rose “on a number of occasions about insanity, about intoxication, about a lesser,” Rouson reminded Rose “that this is death or life” and that Rose was “asking me to roll the dice[,] ... to walk in there, not plead anything in a sense in mitigation or in your defense but it wasn't you.” Though at first Rouson wondered about Rose's competency, after Rouson
Rouson felt Rose's insistence on arguing he was not there limited Rouson's available defenses. Rouson stated that even on “the morning of trial I was still trying to convince him that we should at least consider the insanity defense or the intoxication defense and he would not consider either of them.” Rouson acknowledged that, as the attorney, he maintained a “certain amount of control and direction” over trial strategy, but Rouson “tried to do that as best I could while giving [Rose] what he wanted, while trying to listen to his objections and his protestations and abide by them within the parameters of the facts, the circumstances, the evidence in the case.” Rouson believed “Rose was the type of client that if he didn't agree with my representation and what was happening, he would have said it out loud in court.”
Rouson provided Dr. Slomin with Rouson's file, including a 5–6 page interview sheet about Rose's background, and spoke with Dr. Slomin before and after Dr. Slomin's examination of Rose. Dr. Slomin examined Rose for about two hours. The exam included a clinical interview, the Rorschach test, the Bender–Gestalt test, and the Bender Draw–a–Person test. Dr. Slomin never indicated he needed more background information on Rose.
Dr. Slomin's June 24, 1983 report noted, as to Rose's personal history, that Rose: (1) was married for nine years and divorced in 1978; (2) had two children, a 12–year–old son and an 8–year–old daughter; (3) had hand and facial scars from a 1982 car accident in which he “was propelled through the windshield of an automobile,” requiring over 100 stitches; (4) attended two years of college at Prairie State, where he studied “psychology/mental health” and was a B student; (5) was addicted to heroin “on and off” from 1967–73 and received treatment at an outpatient methadone maintenance program from 1973–76; (6) was never hospitalized for psychiatric reasons; (7) was an alcoholic who attended AA meetings but stopped about two weeks before Richardson's murder; (8) had parents who were both alcoholics, as were Rose's two brothers (his sister was not); (9) worked in a plumber's apprenticeship program in 1970–73 and 1976–77, without completing it, and worked for several weeks as a plumber's helper with his uncle in 1978, but then “became a ‘beach bum’ ” who “only worked sporadically at odd jobs when he wasn't being supported by women”; (10) reported having “blackouts” in the past; and (11) was currently serving five years for aggravated assault.6
Dr. Slomin's report discussed Rose's “account of his actions on October 18, 1982.” Rose told Dr. Slomin that he: (1) “gave plasma in Clearwater and received nine (9) dollars”; (2) “went to have some beers—3 beers for ninety (.90¢) cents[ and] Butch [the victim] came in about the same time”; (3) “[s]hot some pool, and missed the bus again”; (4) “[g]ot in a fight, as someone threatened Butch” and Rose “gave him my shirt as he had lost it in the fight”; (5) “[w]ent to another bar to shoot pool” and “began chasing someone at the end of the alley[,] ... was hit behind the head and nose[,] ... was bleeding” and was handed “half a pill[,] ... Qualude [sic]”; (6) “heard someone talking about Butch being dead, and got into a shower stall and put toilet paper up my nose to stop the bleeding”; and (7) “couldn't find Butch [,] ... saw flashing lights, and went home.” Rose reported that “people kept filling up my glass (with beer)—I drank quite a bit.” Rose found out Richardson was dead when he was “at home, I was asleep and the police came and arrested me.”
Dr. Slomin's report described Rose's mental state: (1) “cooperative and lucid,” (2) “not confused, circumspect, or delusional”; (3) “no indication of remorse,” he “denies committing the crime, and has no recollection of the alleged offense”; (4) “oriented to person, time and place”; (5) “no signs of carelessness, confusion or ... malingering”; (6) has “eye/hand coordination [that] is within normal limits”; (7) “intellectual functioning is in the average range of intelligence”; (8) “no indication of a thought disorder”; (9) “no evidence of a seizure disorder”; (10) “admits to blackouts in the past, but denies Delirium Tremens”; (11) “[n]o sensory defects”; (12) “denies auditory/visual hallucinations”; and (13) “[m]otoric behavior is within normal limits.” Dr. Slomin's report concluded that Rose was: (1) “free of any psychotic symptoms”; (2) “aware of his behavior, but naive as to its consequences”; (3) a heavy abuser of alcohol and drugs; and (4) “ingesting alcohol and may have been in a ‘blackout spell’ at the time of the crime.” Dr. Slomin noted that if the “trial reaches penalty phase, a mitigating factor may be that the Defendant was in a ‘blackout spell’ due to excessive alcohol consumption resulting in amnesic period.” Dr. Slomin's “Diagnostic Impression” of Rose was “Antisocial Personality Disorder with Alcohol Abuse.” Dr. Slomin concluded Rose was competent to stand trial and competent at the time of the offense.
After writing his report, Dr. Slomin met with Rouson about possible mitigating circumstances in the penalty phase. Dr. Slomin was given several files with information on Rose's background, family, and personal history. Dr. Slomin received “two large attorney file folders filled with notes, background related to previous history, background of the defendant, family members, and, ... there...
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