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Barwick v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

July 21, 2015

DARRYL BRIAN BARWICK, Petitioner - Appellant,

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Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 5:12-cv-00159-RH.

For Darryl Brian Barwick, Petitioner - Appellant: Linda McDermott, McClain & McDermott, PA, Wilton Manors, FL.

For Secretary, Florida Department of Corrections, Respondent - Appellee: Timothy A. Freeland, Attorney General's Office, Criminal Division, Tampa, FL; Carolyn M. Snurkowski, Attorney General's Office, Tallahassee, FL.

Before WILSON, MARTIN and ROSENBAUM, Circuit Judges.


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Death-row inmate Darryl Brian Barwick appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Florida. For the following reasons, the district court's order denying Barwick's petition for a writ of habeas corpus is affirmed.


On the morning of March 31, 1986, Rebecca Wendt was sunbathing at her Panama City apartment-complex pool until she returned to her apartment. Around that time, another apartment-complex resident, Suzanna Capers, who also was sunbathing by the pool, observed a man walking around the complex. Capers saw the man she subsequently identified as Darryl Barwick walk towards Wendt's apartment and later from the apartment and into the woods.

That evening, Rebecca Wendt's sister, who was also her roommate, returned home to find Rebecca's body wrapped in a comforter. Investigators called to the scene found bloody footprints and fingerprints throughout the apartment. Rebecca's bathing suit had been displaced, and an autopsy revealed thirty-seven stab wounds to her upper body and several defensive wounds on her hands. The medical examiner reported that death would have occurred within three to ten minutes

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of the first stab wound. No evidence of sexual contact with the victim was found, but criminal laboratory tests revealed a semen stain on the comforter wrapped around the victim. Further testing indicated that the stain could have been left by two percent of the population and that Barwick fell within that two percent.

When initially questioned, Barwick denied involvement in the murder. But after he was arrested on April 15, 1986, Barwick made a full confession. Barwick told investigators that after he had observed Rebecca sunbathing, he went home, parked his car, got a knife, walked back to Rebecca's apartment complex, walked past her three times, and then followed her into her apartment. Barwick claimed that when he entered Wendt's apartment, he had only intended to steal something, but when Rebecca resisted, he lost control and stabbed her, and continued to stab her repeatedly as they struggled and fell to the floor.

Barwick was then indicted on four counts: (1) first-degree murder; (2) armed burglary; (3) attempted sexual battery; and (4) armed robbery. He was tried by a jury and convicted on all counts. By a 9-3 vote, the jury recommended that Barwick be put to death, and the judge subsequently sentenced Barwick to death.[1] On appeal, however, the Florida Supreme Court reversed Barwick's convictions and sentences and remanded for a new trial.[2]

On the third day of his second trial, a mistrial was declared,[3] and a new trial commenced on July 6, 1992. Barwick was again convicted on all counts. This time the jury unanimously recommended Barwick be put to death, and the judge so sentenced him. The trial judge found six aggravators proven beyond a reasonable doubt: (1) previous convictions of violent felonies of sexual battery with force likely to cause death or great bodily harm and burglary of a dwelling with an assault; (2) the murder was committed during an attempted sexual battery; (3) the murder was committed to avoid arrest; (4) the murder was committed for pecuniary gain; (5) the murder was especially heinous, atrocious, or cruel; and (6) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral justification.[4] The trial court found no statutory mitigation, and despite recognizing that Barwick suffered abuse as a child and had some mental deficiencies, it wrote in its sentencing order that there were no non-statutory mitigating factors, either. The Florida Supreme Court affirmed Barwick's convictions and death sentence. Barwick v. State, 660 So.2d 685, 697 (Fla. 1995) (per curiam) (" Barwick II " ). The United States Supreme Court denied certiorari on January 22, 1996. Barwick v. Florida,

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516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996) (" Barwick III " ).

On March 17, 1997, Barwick filed an initial motion for post-conviction relief in the state circuit court, and he amended the motion on August 26, 2002, raising twenty-one claims in total. On December 4, 2003, the state circuit court granted an evidentiary hearing on four of the claims, reserved ruling on one, and summarily denied the remainder. In a second amended motion for postconviction relief, Barwick realleged the same twenty-one claims and added two new claims. The state circuit court issued an order denying Barwick's motion on August 28, 2007. Barwick filed an appeal with the Florida Supreme Court. While that appeal was pending, he also filed a petition for a writ of habeas corpus with the Florida Supreme Court. On June 30, 2011, the Florida Supreme Court affirmed Barwick's conviction and death sentence and also denied his motion for a writ of habeas corpus. Barwick v. State, 88 So.3d 85 (Fla. 2011) (per curiam) ( " Barwick IV" ).

On May 25, 2012, Barwick filed this federal habeas petition, raising seven issues. The district court denied all of his claims but granted a certificate of appealability (" COA" ) as to one issue, and a member of this Court expanded the COA to include four other claims, for a total of five claims: (1) whether Barwick's trial counsel rendered ineffective assistance related to mitigation evidence during the penalty phase; (2) whether the district court erred in denying Barwick's federal constitutional ineffective-assistance-of-trial-counsel (" IATC" ) claim with respect to the alleged failure of counsel to effectively challenge the guilt-phase testimony of state witness Suzanna Capers, which the jury was instructed to consider at the penalty phase; (3) whether the district court erred in denying Barwick's federal constitutional claim with respect to alleged violations of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by allegedly permitting Capers to testify falsely and by emphasizing Capers's allegedly incorrect statements to the jury; (4) whether the district court erred in denying Barwick's federal constitutional challenge to the trial court's rejection of Barwick's childhood abuse as a mitigating circumstance; and (5) whether the district court erred in denying Barwick's federal constitutional challenge to his execution as a " brain damaged, mentally impaired individual."


When reviewing the denial of a habeas petition, the Court reviews de novo questions of law and mixed questions of law and fact. LeCroy v. Sec'y, Fla. Dep't Corr., 421 F.3d 1237, 1259 (11th Cir. 2005). It reviews findings of fact for clear error. Id. Relief is warranted when the state court's resolution of a claim " was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or if the ruling " was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). We presume a state court's factual determinations to be correct, and the applicant bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).


A. Ineffective Assistance

A person challenging a conviction based on ineffectiveness of counsel must show both that his counsel provided deficient assistance and that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

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(1984). Deficient assistance means " counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. But a " wide range" of performance meets the standard of " reasonableness," and we apply a " strong presumption" that counsel's representation fell within that range. Id. at 689, 104 S.Ct. at 2065. Only when " counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" is counsel's assistance deemed to be constitutionally " deficient." Id. at 687, 104 S.Ct. at 2064.

Prejudice occurs when the challenger has shown " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. So even errors that have " some conceivable effect on the outcome of the proceeding" are not enough to show prejudice. Id. at 693, 104 S.Ct. at 2067. Prejudice results only when counsel's errors were " so serious" that they deprived the defendant of a " fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064.

When an IATC claim is based upon a failure to present mitigating evidence, we must consider " whether counsel reasonably investigated possible mitigating factors and made a reasonable effort to present mitigating evidence to the sentencing court." Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006) (per curiam). When mental health is at issue, counsel does not offer ineffective assistance when it later becomes apparent that an expert who would have testified more favorably than the expert who was actually called may have existed. See Ward v. Hall, 592 F.3d 1144, 1173 (11th Cir. 2010) (" As we have held many times before, 'the mere fact a defendant can find, years after the fact, a mental health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial.'" (quoting Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997))). When evaluating the claim, the court must " consider 'the totality of the available mitigation evidence--both that adduced at trial, and the evidence adduced in the habeas proceeding'--and 'reweig[h] it against the evidence in aggravation.'" Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000)).

In short, under Strickland, " [e]ven under de novo review, the standard for judging counsel's representation is a most deferential one." Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). Moreover, the Supreme Court has emphasized that the " Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve." Id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066).

And in a federal habeas proceeding, we must also apply deference to a state court's rejection of a Strickland claim. See id. Title 28, United States Code, Section 2254(d), amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, § 104, 110 Stat. 1214 (1996), sets forth the statutory authority of federal courts to issue habeas corpus relief for persons in state custody:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the

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merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In applying this standard, the Supreme Court has explained that " even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington, 562 U.S. at 102, 131 S.Ct. at 786. That is, when evaluating a petitioner's IATC habeas claim,

[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland 's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court.

Id. at 101, 131 S.Ct. at 785.

In short, " an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410, 120 S.Ct. at 1522. A state court's determination that a claim lacks merit is reasonable so long as " fairminded jurists could disagree" about whether the state court's determination was correct. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938 (2004). And " [t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Id. Because " [t]he Strickland standard is a general one . . . the range of reasonable applications is substantial." Harrington, 562 U.S. at 105, 131 S.Ct. at 788. In sum, " a habeas court must determine what arguments . . . supported . . . the state court's decision . . . [and] whether it is possible fairminded jurists could disagree [about whether] those arguments . . . are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102, 131 S.Ct. at 786.

1. The Mitigation Claim

Barwick contends that he was denied effective representation at the penalty phase because counsel allegedly failed to adequately present mitigating evidence. Counsel presented seven mental-health experts and seven lay witnesses to detail Barwick's tragic home life, including years of sexual, physical, and mental abuse, as well as to detail Barwick's mental deficiencies, learning disabilities, and psychological problems. Nevertheless, Barwick argues that trial counsel's performance was deficient principally for two reasons: (1) counsel's " kitchen sink approach" --in which counsel presented several experts he knew would not be helpful to Barwick's case in an effort to make the defense appear more trustworthy and forthright to the jury--undermined the proper functioning of the adversarial process by presenting harmful testimony that reduced the collective reliability of the testimony; and (2) counsel relied solely on the investigation conducted by the attorney who represented Barwick in his first trial and failed to uncover additional mitigating evidence that another expert proffered during the post-conviction proceeding. The Florida Supreme Court rejected both of these arguments because Barwick failed to show either deficient performance or prejudice under Strickland. We affirm the district court's denial of Barwick's penalty-phase IATC claim based on his failure to show prejudice without deciding if trial counsel's conduct was deficient. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ( " [T]here is no reason

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for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." ). On this record, we cannot say that the Florida Supreme Court ...

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