Windom v. Secretary, Dept. of Corrections, No. 07-15876.

• Decision Date: 10 August 2009
• Docket Number: No. 07-15876.
• Citation: 578 F.3d 1227
• Parties: Curtis WINDOM, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

578 F.3d 1227

Curtis WINDOM, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 07-15876.

United States Court of Appeals, Eleventh Circuit.

August 10, 2009.

Harry Philip Brody (Court-Appointed), Brody & Hazen, P.A., Tallahassee, FL, for Windom.

Scott Andrew Browne, Tampa, FL, for Respondents-Appellees.

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

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Petitioner Curtis Windom, sentenced to death for the first-degree murders of Johnnie Lee, Valerie Davis, and Mary Lubin, appeals the orders of the district court denying his petition for a writ of habeas corpus, entered on 2 November 2007, and denying his Rule 59(e) motion to alter or amend the judgment, entered on 14 November 2007. In this appeal, we must decide whether the Florida state courts unreasonably applied clearly established federal law when they found that Windom failed to establish that his penalty-phase counsel rendered ineffective assistance by (1) neglecting to investigate and present available evidence from mental health experts and lay witnesses related to statutory and non-statutory mitigating factors, and (2) conceding the state's case for aggravation. For the reasons that follow, we AFFIRM the district court's denial of Windom's habeas petition.

I. BACKGROUND

A. Trial — Guilt Phase

Windom was indicted in 1992 by an Orange County, Florida grand jury on three counts of first-degree murder and one count of attempted first-degree murder. At trial, Jack Luckett testified that he spoke with Windom on the morning of the shootings and that Windom asked him if Johnnie Lee had won any money at the dog track.¹ When Luckett told Windom that Johnnie Lee had won $114, Windom, whom Johnnie Lee owed $2000, told Luckett, "`My nigger, you're gonna read about me'" because he was going to kill Lee. R2-23, Appendix to State's Habeas Response, Appx. A4 ("A4") at 356. Later that same day, Windom purchased a .38 caliber revolver and a box of fifty .38 caliber shells from Abner Yonce at a Walmart store in Ocoee, Florida. According to Yonce, there was nothing unusual about Windom, whom he described as "`calm as could be.'" Id.

Almost immediately after purchasing the gun, Windom pulled up in his car next to Lee, who was standing on the sidewalk talking to Luckett and two women. Luckett and the two women all testified that Windom's car was close to Lee and that Windom leaned across the passenger seat of his car and shot Lee twice in the back. After Lee collapsed to the ground, Windom got out of the car and, standing over him, shot him two more times at very close range. Windom thereafter ran towards the apartment where Valerie Davis, his girlfriend and the mother of one of his children, lived. Within seconds of arriving at the apartment, and without provocation, Windom shot Davis in the left chest area as she talked on the telephone. Windom fled the apartment and ran outside, where he encountered Kenneth Williams on the street. Windom shot Williams in the chest area at very close range. Though hospitalized for almost a month, Williams survived. He testified that when Windom shot him, Windom did not look normal and that his eyes were "`bugged out like he had clicked.'" Id. at 358.

After shooting Williams, Windom made his way to Brown's Bar, where three men, including Windom's brother, attempted to take the gun from him. By that time, Davis' mother, Mary Lubin, who moments earlier had learned that her daughter had been shot, had left work in her car and was driving down the street. When she stopped at a stop sign, Windom approached her car, said something to her, and then shot her twice, killing her. The jury returned guilty verdicts on all four counts of the indictment.

B. Trial — Penalty Phase

In his opening statement before the jury, Windom's attorney, Ed Leinster, made the following remarks:

Since I'm the same individual that was largely unsuccessful in convincing anyone here that Mr. Windom did not do everything the state said he did and in the degree that they said he did. I hope that I can at least keep your attention through this particular phase.

.... Nothing about this has been fun. Trying a first-degree murder case is about as brutal as it gets. I wasn't there, I didn't participate. My job is to try to save a man's life, end of story. You made your decision. It wasn't too tough.

Broad daylight, what can you say? I would have to be the firm of Christ and Houdini to have made anything out of this other than what it clearly was. So the question now for you is, do we pay any homage to what several people refer to as the sanctity of human life at this point? Does he forfeit his life?

....

You are going to hear a few people who are going to testify. I'm frankly not quite sure what they are going to say as far as the state's presentation. And they will be presenting aggravating factors to you. Those are by law statutory aggravating factors that have to be proven beyond a reasonable doubt.

Then we present testimony that essentially says he is not all bad. That is a tough pitch for people who have heard what he did. And it is my job once again to try to convince you. You may already be convinced. You may have already made up your minds; I hope not. But my job is going to be at least to try to say this man doesn't need to die.

There is no reason for him to die. And I guess the ultimate conclusion that we are all going to find out when this is all over really through your determination is really what we mean by the sanctity of human life. Because he is a human, too.

R2-23, Appendix to State's Habeas Response, Appx. A1 ("A1") at 26-28.

The state then called Vickie Ward, a police officer with the Winter Garden Police Department who at the time of the 1992 shootings had been assigned to the D.A.R.E. program at a local elementary school, to testify as to the impact of the murders on the Winter Garden school children.² Defense counsel presented no testimony or other mitigating evidence to the jury. During a bench conference, the following exchange occurred between Leinster and the trial judge:

Mr. Leinster: The state having chosen to put on what they put on, we could put on a variety of individuals whose testimony would be essentially that in their personal observations of the defendant, they had never seen anything quite like this or this kind of presentation. That he seemed to be out of his mind at the time, was part of the trial testimony which the jury can consider for purposes of the penalty phase.

What that does open up, however — and I can't control how these people deliver their presentation ... is the possibility for the state to then cross-examine them about such things as you didn't see him do this, so forth, but were you aware of bla, bla, bla, bla [sic] the following. And this has been from start to finish, a cocaine case with a murder overlay. The jury hasn't heard that.

The Court: About the cocaine.

Mr. Leinster: About the cocaine. And I have had to tread a very thin line from the beginning to end. And I'm doing this for the record, not to amuse you or anything.

The Court: I know, and I'm letting you not to amuse you.

Mr. Leinster: There are ways of approaching these kinds of cases. And I would probably have tried this case in a different fashion if it were not a first-degree murder case, if it didn't have a death sentence attached to it, I may have been perfectly happy to let the jury hear that there was cocaine involved. And the other people that were involved and that there were notions of his girlfriend sleeping with another person and that she might have been an informant and on and on and on. Except for the fact that, in my opinion, that would have made an already almost inextricable legal situation worse.

So I did the very best I could with what I had which was, I didn't have a pair, you know, that the state had a straight flush, and I didn't even have enough to bluff with. Now, what we have got now is, the state because of I think your rulings has put on one person which is not an aggravating factor.

And if I put on a slew of potential people to say nice things about Curtis Windom, and I'm sure they will, there is the distinct possibility that those folks are going to be asked questions in cross-examination that I may find highly objectionable. But once the question is asked, it is asked. Whether you agree with me or not, ultimately, the jury has heard it.

And in my opinion, what we end up with is Curtis Windom is tried for drugs and not for what happened. So I as his lawyer have made a strategic decision, wise or unwise, not to call these folks and to argue what we have got here. And if I am wrong, of course, some day I'm going to hear about it.

The Court: Well, have you discussed this with your client and is he in agreement with this?

Mr. Leinster: I discussed this with my client before lunch. I don't know if he is in agreement with it or not. Curtis, are you in agreement with it?

[Windom]: Yes.

The Court: You are?

[Windom]: Yes.

The Court: Do you understand why he is doing it this way?

[Windom]: Yes.

The Court: Why do you understand it to be?

[Windom]: Because he don't want the drug thing to come in.

Id. at 39-41.

Following the bench conference, Leinster delivered his closing argument to the jury:

During voir dire ... I asked a lot of people about their feelings about the death penalty. And I don't think I ever got a response that made a bit of sense. Usually what it is is, well, if someone takes a life, then he forfeits his life. Once that person makes a decision to kill someone else, then he ought to die.

And that same nonsense is uttered by people who in the same breath vouch for the sanctity of human life ... Why do you tell me on the one hand that you believe in the value of human life, and yet you tell me that if somebody...