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Everett v. Sec'y, Fla. Dep't of Corr.

United States Court of Appeals, Eleventh Circuit

February 27, 2015

PAUL GLEN EVERETT, Petitioner-Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee

Petition for certiorari filed at, 09/04/2015

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Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 5:11-cv-00081-RS.

For Paul Glen Everett, Petitioner - Appellant: Linda McDermott, McClain & McDermott, PA, Wilton Manors, FL.

For Secretary, Florida Department of Corrections, Respondent - Appellee: Leslie Teresa Campbell, Attorney General's Office, West Palm Beach, FL.

Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

OPINION

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HULL, Circuit Judge:

Paul Everett, a Florida inmate, filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus, raising multiple challenges to his first-degree murder conviction and death sentence. The district court denied Everett's petition, but granted him a certificate of appealability (" COA" ) as to one issue: Whether a law enforcement officer's request for a consent to search from, or service of an arrest warrant on, a defendant in custody who has invoked the right to counsel violates the Fifth Amendment.

Upon Everett's motion, this Court expanded the COA to include an additional issue: Whether the district court erred in denying Everett's claim that his trial counsel rendered ineffective assistance in the investigation and presentation of mitigating evidence during the penalty phase of his 2002 trial.

Having considered the state court record, the district court's thorough order, and the parties' submissions, and with the benefit of oral argument, we affirm the district court's denial of Everett's § 2254 petition.

I. CRIME, GUILT PHASE, AND VERDICTS

A. Murder, Burglary, and Sexual Battery

On Friday, November 2, 2001, during the late afternoon or early evening, Everett was roaming the neighborhood where victim Kelli M. Bailey lived in Panama City Beach, Florida. Everett was armed with a wooden fish bat and " looking for . . . some money." He entered the home of Bailey, a stranger to him, uninvited, possibly through an unlocked door.

Bailey emerged from her bedroom and confronted Everett in the living room. Everett beat Bailey, and as she tried to run back to her bedroom, he knocked her down and raped her. Everett also twisted Bailey's neck, breaking a vertebra, which paralyzed her and caused her to suffocate to death.[1] Bailey suffered extensive other injuries, including multiple abrasions on her face; swollen eyelids and hemorrhaging of the eyes; a fractured nose; lacerations and bruising on her lips; a tear in her lip through which her teeth protruded; a knocked-out tooth; bruising of her tongue where her teeth impacted the tongue; and abrasions on her body consistent with carpet burn.

Before leaving Bailey's house, Everett removed his shirt, but he took with him some cash and a credit card from Bailey's purse, his fish bat, and her jacket. Outside the house, Everett discarded all but the cash. Everett returned to the Fiesta Motel, the nearby motel where he was staying at the time.

Bailey did not show up that evening for her seven o'clock shift as a medical technologist at a hospital and thus a concerned coworker called her home phone and left multiple messages on her answering machine. The coworker then called Bailey's stepfather, John Greathouse, who lived less than a mile from Bailey, to ask Greathouse if he knew where Bailey was. Greathouse drove to Bailey's house and entered through her back door using his

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key. Greathouse discovered Bailey lying dead in the doorway to her bedroom, and he called 911.

Police responded and investigated the murder scene, where they found blood spatter in the living room, on the doorway to Bailey's bedroom, and in her bedroom. Police found Bailey lying face down in the entrance to her bedroom, with her legs partially splayed. One of Bailey's teeth was lying on the floor next to her head. Bailey's jacket and credit card were discovered one block from her house.

Additionally, police recovered a fish bat approximately 133 feet from Bailey's back door. The bat tested positive for the presumptive presence of blood. The police subsequently discovered that an individual--later determined to be Everett--had purchased the same model of fish bat at a local Wal-Mart store on October 27, 2001.

B. Everett's Arrest in Florida

At the time of the murder, Everett was a fugitive from justice in Alabama, where he previously had received a ten-year suspended sentence for a 1999 conviction of possession of a forged instrument. In February 2000, Everett's probation was revoked, and he was sentenced to ten years in state prison. Everett posted a supersedeas bond pending his direct appeal. When his appeal was denied on October 5, 2001, Everett was required to begin serving his sentence within fifteen days under the terms of the bond. Instead of turning himself in by his October 20, 2001 deadline, Everett fled to Florida.

Accordingly, an Alabama bail bondsman was searching for Everett at the time of the November 2001 murder. Around nine o'clock on the night of the murder, based on a tip from one of Everett's sisters, the bail bondsman found Everett at the Fiesta Motel. The bail bondsman took Everett into custody and transported him to Alabama authorities. Everett was then jailed at the Baldwin County Corrections Facility in Alabama.

C. Everett's First Statement, November 14, 2001, in Baldwin County, Alabama Jail

On November 14, 2001, Sergeant Rodney Tilley and Lieutenant Chad Lindsey, investigators with the Panama City Beach Police Department, traveled to the Baldwin County jail to interview Everett regarding the Bailey homicide. The police in Florida had traced the fish bat found near the crime scene to Everett, and had learned that Everett was being held in the Baldwin County jail in Alabama.

At the beginning of the twelve-minute interview--which was tape-recorded and subsequently transcribed--Sergeant Tilley said to Everett, " [Y]ou understand the right to remain silent, you do not have to talk to me, you have the right to have an attorney present before we talk." Everett confirmed that he understood and that he wished to speak with the officers.

In his transcribed November 14 statement, Everett indicated that, when the bail bondsman found him at the Fiesta Motel, he had been in Panama City[2] for a couple of weeks. Everett had come down to Panama City from Alabama to meet up with a friend, Jared Farmer, with whom he spent most of his visit using crystal methamphetamine and marijuana. Everett financed the trip and the drugs in part by writing bad checks, including at a Wal-Mart store, where he purchased a fish bat among other items. Everett said that he had not seen the fish bat since leaving it in Farmer's

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pick-up truck about a week before leaving Panama City.

When Sergeant Tilley asked Everett what shoes he had with him during the trip, Everett stated that he had worn a pair of sneakers that he subsequently threw away when the sneakers got blood on them during a fight with another man on the beach. After Sergeant Tilley noted that Everett's story about throwing away the shoes did not " jive," Everett stated, " I wish to have a lawyer present. I can tell you, I can see where this is going. I mean I want a lawyer."

The transcript of the November 14 statement reflects that Sergeant Tilley then noted that Everett had requested a lawyer, after which one of the officers shut off the tape recorder.

According to Sergeant Tilley's and Lieutenant Lindsey's subsequent depositions, as the Florida officers were " packing up" and leaving the room, Lieutenant Lindsey said something to Everett to the effect of, " Don't be lying, don't be caught in a lie, you know, now's the chance for you to tell the truth, you know, because I don't want to see the State of Florida stick a needle in your arm." Picking up on Lieutenant Lindsey's attempt to play " bad cop," Sergeant Tilley took on the role of " good cop" and said to Everett, " [M]an, you know, I think this might have been a burglary that went bad. . . . I would sure like to hear it from you, but . . . ."

At that point, from Sergeant Tilley's perspective, Everett " mellowed in his seat." Sergeant Tilley then stated, " [W]ell, if you want to talk to me, just let me know, let these folks know." Sergeant Tilley believed that this left things between him and Everett on good terms.

D. Request for Consent for DNA Samples--November 19, 2001

Following Everett's November 14 statement, and sometime on or before November 19, Sergeant Tilley contacted Officer John Murphy, a detective in the Sheriff's Office in Baldwin County, Alabama. Sergeant Tilley asked Murphy to obtain consent from Everett to collect blood and saliva samples for Tilley's investigation of the Bailey homicide. Thus, on November 19, Officer Murphy in Baldwin County asked for Everett's consent to collect the DNA samples.

On November 21, 2001, Officer Murphy prepared a written report concerning his November 19 interaction with Everett. According to that report, Everett agreed verbally and in writing to Officer Murphy's request for DNA samples. The signed consent forms state in full:

The undersigned, Everett, Paul, does hereby voluntarily and consentually [sic], grant permission for, Mary Hadley [illegible], to draw or extract a sample of my blood or hair. This consent is hereby granted without any pressure, force, or promises made to me. The sample or samples may be given to, John Murphy, with the, Baldwin County Sheriffs Office.
. . .
I, Paul Everett, having been informed of my constitutional right not to have a search made of the body hereinafter described without a search warrant and of my right to refuse to consent to said search, do hereby authorize John D. Murphy, who are officers of the Baldwin County Sheriff's Department, to conduct a complete search of my: Body -- Blood, Hair, Saliva. . . . I further state that I am the proper person to authorize the search referred to herein. This permission is being given voluntarily and without threats or promises of any kind.

(Paragraph breaks omitted).

Everett provided the samples to Officer Murphy in Alabama. No Florida police were there then, although ...


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