Fred Anderson, Jr. v. Secretary, FL DOC, et al

Filing

Opinion issued by court as to Appellant Fred Anderson, Jr.. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. --[Edited 05/13/2014 by JSC]

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13921
________________________
D. C. Docket No. 5:09-cv-450-WTH-TBS

FRED ANDERSON, JR.
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2014)
Before TJOFLAT, MARTIN, and DUBINA, Circuit Judges.
TJOFLAT, Circuit Judge:

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Fred Anderson Jr. is a Florida death-row inmate awaiting execution for
capital murder. The crime occurred on March 20, 1999, while Anderson was
robbing a bank in Mount Dora, Florida. The only bank employees on duty at the
time were two tellers. Anderson, using two handguns, shot them both. One of the
tellers died at the scene, and the other survived. At his trial in Lake County, the
jury convicted Anderson of capital murder, 1 attempted first degree murder, 2
robbery with a firearm, 3 and grand theft of a firearm. 4 The jury unanimously
recommended that Anderson be sentenced to death for the murder, and the trial
judge, accepting the jury’s recommendation, sentenced him accordingly.
Anderson seeks a writ of habeas corpus on the ground that his attorneys
denied him his right to the effective assistance of counsel in the penalty phase of
his case, in violation of the Sixth and Fourteenth Amendments to the United States
Constitution.5 Specifically, Anderson argues that his attorneys, in preparing for the
penalty phase, failed to conduct a reasonable investigation into mitigating evidence
and, as a result, failed to discover and present to the jury the mitigating evidence a
1

Fla. Stat. § 782.04(1)(a).

2

Id. §§ 782.04(1)(a), 777.04(1), 775.087.

3

Id. § 812.13(2)(a).

4

Id. § 8.12.14(1), (2)(c)(5). Anderson was also charged with burglary of a structure,
pursuant to § 810.02(1), (4), but the court dismissed the charge during trial.
5

The Sixth Amendment provides, in relevant part, that “In all criminal prosecutions, the
accused shall . . . have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The
Sixth Amendment applies to the states under the Due Process Clause of the Fourteenth
Amendment. See Gideon v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797 (1963).
2

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reasonable investigation would have disclosed. He claims that, but for such
failure, there is a substantial probability that he would not have received a death
sentence. The United States District Court for the Middle District of Florida,
agreeing with the Supreme Court of Florida that Anderson’s claim lacked merit,
denied his application for a writ of habeas corpus. 6 We affirm the District Court’s
ruling.
I.
A.
The circumstances that led to Anderson’s arrest and conviction for capital
murder go back to 1986, when, at age eighteen, he entered Bethune-Cookman
University in Daytona Beach, Florida, hoping to obtain a degree in psychology.
His academic performance was poor; after his first semester, his grades started
dropping, and by 1990 they were falling precipitously.
In addition to struggling academically, Anderson began to find himself in
trouble with the law. In December 1991, Anderson was convicted of passing a
worthless check in the County Court of Volusia County, 7 fined $85, and placed on

6

In denying the writ, the District Court, pursuant to 28 U.S.C. § 2253(c)(1), granted
Anderson a certificate of appealability to appeal his claim that Florida’s death penalty statute is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000). Anderson now concedes that Evans v. Secretary, Florida Department of
Corrections, 699 F.3d 1249 (11th Cir. 2012), which we decided after he took this appeal,
forecloses that claim.
7

Daytona Beach is located in Volusia County, Florida.
3

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probation for three months. In March 1992, his probation officer reported to the
court that Anderson had violated the conditions of his probation and requested that
a warrant be issued for his arrest. A warrant issued, and following a hearing held
in April 1994, the County Court sentenced Anderson to jail for seventeen days. 8
Less than two months after he was released, he was convicted in the County Court
on twenty-one counts of passing worthless checks, totaling $1,135.61, to Walmart,
Home Depot, Walgreens, and other stores, and was ordered to pay restitution and
placed on one years’ probation.
B.
At some point prior to these convictions, Anderson got a job working for
Bethune-Cookman University’s admissions office. While serving in this position,
Anderson embezzled the tuition payments of two incoming students––amounting
to $4,750. Upon discovering this embezzlement, the University reported
Anderson’s actions to the State Attorney who filed an information in the Volusia
County Circuit Court, charging Anderson with grand theft, a third degree felony.
Anderson pled not guilty and stood trial. A jury found him guilty as charged, and,
in September 1994, the Circuit Court sentenced him to five years’ probation, a
condition of which required that he make restitution to the University for its loss.
Anderson failed to comply with the payment schedule required by this condition,
8

The record contains no explanation for the court’s two-year delay in acting on the

warrant.
4

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however, and on April 1, 1997, the Circuit Court revoked his probation and placed
him under Community Control––a form of in-house arrest––under the supervision
of a Volusia County probation officer. 9
Anderson obtained the court’s permission to serve the house arrest at the
residence of his mother, Geneva Anderson, in Umatilla, Florida. As a
consequence, his supervision was transferred to the Lake County probation office
and to probation officer Kathy Carver. Under the conditions of Anderson’s
Community Control, he was required to continue making restitution payments to
Bethune-Cookman. Pursuant to this requirement, Anderson was permitted to work
outside of his mother’s residence in jobs of which Carver approved. Otherwise,
Anderson was restricted to his mother’s residence.
Anderson failed to comply with the conditions of his Community Control
when he failed to make the scheduled restitution payments or to stay in his
mother’s residence when he was not working. On May 20, 1998, Carver reported
9

According to the Florida Department of Corrections:

Community Control is a form of intensive supervised house arrest in the community,
including surveillance on weekends and holidays, administered by officers with limited
caseloads. It is an individualized program in which the freedom of the offender is
restricted within the community, home or non-institutional residential placement, and
specified sanctions are imposed and enforced. As with probation, violation of any
community control condition may result in revocation by the court and imposition of any
sentence which it might have imposed before placing the offender on community control
supervision. Many of the offenders who are placed on community control are prison
diversions.
Florida Department of Corrections, Annual Report 1997–1998, available at
http://www.dc.state.fl.us/pub/annual/9798/stats/stat_cs.html.
5

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Anderson’s non-compliance to the Lake County Circuit Court, requested the
revocation of his Community Control, and recommended that Anderson be
committed to the Probation and Restitution Center (“PRC”) in Pine Hills 10 or
sentenced to jail for eleven months and twenty-nine days. Anderson and his
attorney received a copy of Carver’s report and recommendation, and the court
scheduled a revocation hearing. The hearing was continued at Anderson’s request,
and rescheduled for January 6, 1999. That hearing was again delayed at
Anderson’s request and was rescheduled for Monday, March 15, 1999.11
The hearing was held as scheduled on March 15, and Anderson appeared
with counsel. After Carver testified to Anderson’s non-compliance with the
conditions of Community Control, the Circuit Court ordered Anderson placed
under Community Control for 529 days, one year to be served at the PRC
beginning the following Friday, March 19. The court’s actions operated to
terminate Carver’s supervision; Anderson would thereafter be supervised by a
Volusia County probation officer, Deborah Laso.
Because Anderson was under travel restrictions and thus not authorized to
travel to the PRC, he needed a travel permit. Carver instructed him to meet her at
her office in Tavares the next morning, March 16, to pick up such a permit. When
10

Pine Hills is a suburb of Orlando, Florida.

11

The record does not indicate the date of the first revocation hearing. Carver testified,
in substance, that the two hearings were continued because Anderson and his attorney were
having difficulty coordinating.
6

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the two met as scheduled, Carver gave Anderson a travel permit and instructed him
to report to the PRC on Friday, March 19 by 4:00 p.m.
C.
On Thursday March 18, Anderson left his mother’s residence and went to
the residence of a friend, Kerry Cunningham, intending to steal a .22 caliber
revolver that Cunningham kept in a locked shed behind his residence.
Cunningham was not there, but his brother-in-law was. Under the pretense of
wanting to use the telephone, which was in the shed, Anderson convinced
Cunningham’s brother-in-law to let him into the shed and leave him alone. Once
alone, Anderson stole the revolver. Later in the day, Anderson went to the Mount
Dora branch of the United Southern Bank (the “USB”) and spoke with Johnnie
Scott, a loan secretary he knew from church, who sang with him in the choir.
Anderson told Scott that he was organizing a youth choir and asked if she would
like to join him. He did not mention having to relocate to the PRC the following
day.
On Friday morning, March 19, Anderson went to Carver’s office, arriving
around 10:30 a.m. Carver was not there, but Anderson spoke with another
probation officer who was available. Anderson told this officer that he had been
ordered to report to the PRC by 4:00 p.m. that day for failing to make restitution to
Bethune-Cookman University for funds he had embezzled and that he now had the
7

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money necessary to satisfy the obligation. Since he was going to pay the
University the sums due, he wondered whether it would still be necessary to report
to the PRC. The officer told him to report as ordered.
Later that morning, sometime between 11:00 a.m. and noon, Anderson went
to the USB branch in Mount Dora. Two tellers––Marisha Scott and Lori Weed––
were on duty. Anderson approached Weed and introduced himself as a student at
Valencia Community College.12 He said that he was interviewing bank officers as
part of a research assignment on banking and financial operations. Scott, the head
teller, told Anderson that if he would be willing to wait, he could speak with the
bank manager, Allen Seabrook. Twenty minutes later, Seabrook invited Anderson
into his office where the two conversed for ten to fifteen minutes. Their
conversation focused primarily on how a depositor opens and maintains a bank
account. Seabrook noticed that whenever he took his eyes off of Anderson to
glance at the lobby, Anderson’s focus shifted to the surveillance VCR on
Seabrook’s desk. Other than this apparent fixation with the VCR, however,
Seabrook thought that Anderson behaved quite normally.
Following his trip to the USB in Mount Dora, Anderson went to the Colonial
Bank in Umatilla. He told the attendant who greeted him that he wanted to open a

12

Valencia College is located in Orlando, Florida. The head of admissions for the
college testified at Anderson’s trial that Anderson had never been enrolled as a student.
8

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bank account. The officer he needed to see was busy, so the attendant asked
Anderson to return on Monday.
At 2:30 on Friday afternoon, Anderson called Deborah Laso in Daytona
Beach. He told her that he had the money necessary to satisfy his restitution
obligation to Bethune-Cookman and asked how he should go about making the
payment. Laso told Anderson that he would have to speak to Kathy Carver about
it; in any event, he needed to report to the PRC by 4:00 p.m. as ordered. Anderson
failed to report to the PRC, however, and instead went back to his mother’s house.
On Saturday morning, March 20, while his mother was out of the house
grocery shopping, Anderson removed a loaded .22 caliber revolver from her
dresser. When she returned, he asked to borrow her car to go to the store.13
Armed with her revolver and the revolver he had stolen from Cunningham’s shed,
he drove to the USB branch in Mount Dora. On the way he stopped by the
Walmart and purchased orange juice and a package of donuts.
Anderson arrived at the bank at about 10:15 a.m. The only personnel on
duty were two tellers––Heather Young and Marisha Scott. Anderson gave them
the orange juice and donuts he had purchased, saying that they were tokens of
appreciation for arranging his meeting with Seabrook the previous day. He then
13

Anderson’s mother was using a neighbor’s automobile. Anderson did not possess a
valid driver’s license; his license had been suspended. He did not own or have possession of an
automobile. The record does not indicate how he transported himself to and from the various
locations indicated in the text.
9

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asked Scott if she would explain the job duties of a bank teller, claiming that he
needed the information to complete his research assignment. Scott agreed, and
Anderson spoke with her for about an hour and a half, until there were no
customers in the bank.
At around 11:45 a.m., about fifteen minutes before the bank was set to close,
Anderson told the two tellers that he was going to his car to get a business card to
give to them. The tellers found this odd, and Scott decided to lock the front door
while Anderson was outside. Before she could reach the door, however, Anderson
reentered the bank. Once inside the bank, he pointed one of the revolvers he was
carrying at Scott and ordered her to go to the vault without setting off any alarms.
Young, standing at her teller’s station, observed this and apparently froze in fear.
Two doors inside the vault had to be unlocked before the bank’s cash locker
could be accessed, so Scott went behind the tellers’ stations and retrieved the keys
to the doors. As she was doing this, Anderson warned her again not to set off any
alarms. After retrieving the keys, Scott unlocked the doors, and Anderson took her
and Young to the cash locker. The tellers opened the locker using their assigned
combinations. Anderson then ordered them to remove the liner bag from the
trashcan located in the vault and fill the bag with money. They complied: They
cleaned out the $71,618 contained in the top half of the cash locker, placed the

10

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money in the bag, and gave the bag to Anderson. At this point, Anderson asked
the tellers who wanted to die first. Scott begged him not to hurt them.
At approximately 11:50 a.m., ten minutes before the bank was scheduled to
close, Sherry Howard arrived at the bank with her two children. After entering,
she noticed that the bank was “unusually dark” and that no one was in the lobby.
She heard a woman’s voice, coming from the direction of the vault, saying “Please
don’t. Please no.” Howard recognized the voice as belonging to Scott, with whom
she had worked for three years at the Eustis branch of the USB. Turning toward
the vault, Howard saw what appeared to be a heavily built black man standing just
inside the vault doorway. His back was facing away from Howard, and his arms
were extended. Howard heard a woman’s scream and two or three gunshots. She
immediately grabbed her children, left the bank, and ran to a nearby grocery store
to call the police.
Anderson fired ten shots 14 at point blank range at Scott and Young. Seven
of the shots struck Young; two struck Scott. Anderson put the revolvers in the
trashcan liner bag and went to Seabrook’s office. There, he tried to eject the
surveillance tape from the VCR on Seabrook’s desk, but a security feature of the
VCR prevented him from doing so. Frustrated, he ripped the VCR from its mount
and attempted to pull its cord from the wall. As he was doing this, the bag he was
14

Four shots were fired from his mother’s revolver and six shots were fired from
Cunningham’s.
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holding ripped open, spilling the money and the two revolvers onto the office floor.
Anderson retrieved all of the money and his mother’s revolver, 15 which he placed
in a nearby trashcan. At this point, he heard moaning sounds coming from the
vault. He went there and was surprised to find the two tellers still alive.16
A 911 call to the police brought a quick response; two officers arrived at the
scene in less than two minutes. They entered the bank with weapons drawn and
observed Anderson holding the VCR and the trashcan containing the money and
his mother’s revolver. The officers ordered him to drop everything. Anderson
complied, identifying himself as the bank janitor and asking the officers not to
shoot. The officers handcuffed Anderson and searched the building for
accomplices. As other officers entered the bank to assist in securing the area,
Anderson spontaneously volunteered to one of them “I did it. I did it by myself.
I’m by myself.”

15

Cunningham’s revolver had slipped under Seabrook’s desk, and Anderson did not
retrieve it.
16

The record is not clear as to what Anderson did when he found the women still alive.
Scott testified that sometime after she was shot, she saw a large black object coming towards her
face. Both victims had head wounds. The State claimed that the most likely cause of the
wounds was that Anderson, after returning to the vault and realizing that the tellers were alive,
struck them with the VCR or some other large object. The VCR was dented, but it was unclear
how the dent got there. Anderson told the jury that after he reentered the vault and saw blood
coming from Scott’s neck, he dropped the VCR.
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Paramedics arrived and attended to the two victims. Young was the more
severely injured of the two.17 Despite the best efforts of the paramedics on the
scene, 18 she died on the way to the local hospital. Scott suffered only two gunshot
wounds, but her injuries were catastrophic. One of the bullets had entered her neck
and struck her spinal cord, leaving her paralyzed and with a severely limited ability
to intake oxygen. Through extraordinary efforts the paramedics were able to keep
Scott alive as she was evacuated from the bank and transported by helicopter to a
hospital in Orlando.19
17

The medical examiner testified that each of seven gunshot wounds Young sustained
could have killed her except for the wound caused by a bullet that went through her chin and out
her right eye. One of the wounds had a pattern of gunpowder “tattooing” around it, which
indicated that the shot was fired no farther than ten inches or so away.
18

Through an initial survey of the victims’ conditions, the paramedics determined that
Young had the most severe injuries with several shots to the head and two shots to the torso.
Above her right eye was a massive spot of damage, and she was convulsing, which indicated a
severe head injury. At this point she was completely unable to communicate with the
paramedics and gave absolutely no indication that she was aware of their presence. She had a
very faint and weak carotid pulse, and the paramedics could not register a reading of blood
pressure. In an attempt to funnel as much blood and oxygen as possible to the heart and the
brain, the EMTs suspended Young’s feet about a foot off the ground and ventilated her with a
bag valve mask. Despite these efforts Young “coded”––went into complete cardiac arrest––and
the paramedics began administering CPR. Shortly after Young coded––about 25 minutes after
the EMT’s began administering care––an ambulance team arrived on the scene and assumed
control of Young’s care. These paramedics attached Young to a cardiac monitor and attempted
to restart her heart through the use of a drug called atropine sulphate and a drug called
epinephrine, commonly known as adrenaline. Although they were initially successful in
restarting Young’s heart, she quickly slipped back into cardiac arrest.
19

In an effort to manage Scott’s breathing airway, a bag valve mask was placed on her
face to breathe for her. Given the severity of her injuries, however, it quickly became apparent
to the paramedics on the scene that endotracheal intubation was necessary. This required them
feed a tube through Scott’s mouth, down her throat, and into her lungs. Given Scott’s condition,
they had to do a surgical cricthyrotomy––a vertical incision into Scott’s neck and through her
windpipe to allow the insertion of the tube into her lungs. This allowed the paramedics to supply
Scott with oxygen until the evacuation helicopter arrived.
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Anderson was taken from the bank to the nearby police station. The police
questioned him there, and he confessed to committing the robbery and shooting the
tellers. 20
II.
On March 21, 1999, the day following his arrest, Anderson appeared in the
Lake County Circuit Court, was advised of his rights, and, being indigent,
requested the appointment of counsel. The court appointed the Office of the Public
Defender for the Fifth Judicial Circuit of Florida.21 Two Assistant Public
Defenders were placed in charge of Anderson’s case––William Stone and Clinton
Doud. 22 Stone served as Anderson’s lead counsel, and Doud served as second
chair.

While in the helicopter, however, Scott again began to suffer from lack of oxygen. Her
color faded from pink back into a bluish cyanotic state, and she slipped into unconsciousness.
The paramedics on board were having difficulty getting oxygen into her lungs due to a buildup
of pressure in the chest, known as pneumothorax. Through a procedure known as needle
thoracentesis––whereby a needle is inserted into the chest above one of the ribs to relieve
pressure from the lungs and chest cavity––the paramedics were able to revive Scott en route to
the hospital.
20

In his initial responses to the questioning, Anderson stated that he went to the bank to
look at the bank’s brochures and see what services it had to offer, that he did not know why he
had two guns in his possession, that he did not enter the manager’s office to get the VCR, and
that the reason the VCR cord was ripped from the wall socket was because he tripped on it.
21

The Fifth Judicial Circuit includes Lake County.

22

Originally, Assistant Public Defender Michael McDermott was assigned to Anderson’s
case along with Stone, but he was replaced by Doud in August or September 1999.
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Nine days later, on March 30, Anderson was indicted and charged with the
capital murder of Heather Young, attempted murder of Marisha Scott, armed
robbery of the USB, and grand theft of Cunningham’s firearm. He was arraigned
on April 1 and entered pleas of not guilty.
The evidence against Anderson was overwhelming. The bank’s security
cameras had recorded the robbery, the police had caught Anderson red-handed, and
Anderson had confessed to both the robbery and the shooting. 23 It was therefore
obvious to Stone and Doud that Anderson would be found guilty as charged. The
best they could hope for would be a sentence of life imprisonment for Heather
Young’s murder.
A.
As the starting point in the defense team’s effort obtain information that
would persuade a jury not to recommend the death penalty, Stone had Anderson
answer a battery of questions posed in a questionnaire styled “Confidential
Forensic Assessment” (the “Questionnaire”). The questions focused on the
defendant’s background and were wide-ranging. Among many areas, the questions

23

Additionally, Anderson’s hands tested positive for gunshot residue, and blood on his
clothes tested positive for Scott’s DNA. A weapons expert also testified that four of the .22
caliber bullets found at the scene matched the revolver Anderson stole from his mother, and
although not a perfect match, six of the .22 caliber bullets were consistent with the revolver that
Anderson took from Cunningham’s shed.
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inquired into the defendant’s family, childhood, history of abuse, education,
employment, drug use, incidents of physical trauma, and mental health history.
The investigator from the Public Defender’s Office assigned to Anderson’s
case, J.T. Williams, delivered the Questionnaire to Anderson and asked that he
complete it and return it to Stone. Anderson did as instructed, answering every
question. State Court––Collateral Appeal Record, vol. 7, at 1098–1154. His
answers to some questions were too long to fit in the space provided, so he
attached several additional pages of information to the Questionnaire. Both Stone
and Doud felt that Anderson’s answers to the Questionnaire were more
comprehensive and thorough than any they had ever received in a capital case.
On the Questionnaire, Anderson denied any history of child abuse. Asked to
“describe sexual behavior among family members,” Anderson answered “None.”
Id. at 1102. Asked if he thought he was abused or neglected as a child, Anderson
answered “No,” id. at 1102, and in another section listed that he was sixteen before
he became sexually active, id. at 1116. In a section asking him to underline any
problems experienced during his childhood, Anderson did not underline “Sexually
Molested,” “Traumatic Event,” or “Witness to Violence,” although he did
underline “Extreme Fears,” “Accident Prone,” and “Sick a Lot.” Id. at 1130.
Actually, Anderson’s answers to the Questionnaire painted a relatively rosy
picture of his childhood. Asked to describe his home environment as a child, he
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answered that he always received “suppor[t]” from his parents and that “[t]here
was never a question of love.” Id. at 1102. Asked for a summary of his family life
as a child he answered that he “had a normal childhood” and that “[he] wasn’t an
abused child.” Id. at 1106.
In one section, Anderson was asked to list the deaths of any close relatives
or friends. Id. at 1104. Among the six people Anderson listed was Michael Green
whom Anderson described as a cousin who had died from a brain tumor. Id. The
Questionnaire also asked him to describe the effect the listed deaths may have had
on him. In an attached sheet, he gave a description of how the deaths of the other
five friends and relatives he had listed affected him. Id. at 1146–47. He made no
reference to Michael Green in the attached sheet.
The Questionnaire did not reveal an extensive problem with drugs and
alcohol. Asked if he consumed alcoholic beverages, Anderson answered “yes, in
the past” and that he did not consider himself an alcoholic. Id. at 1134–35. Asked
if he “use[d] drugs or ha[d] . . . in the past,” Anderson answered “Yes” and
underlined “in the past.” Id. at 1136. When asked for the history of his use,
Anderson answered “Marijuana––occasionally.” Id.
Finally, the Questionnaire disclosed no evidence of head trauma. Asked to
list “all hospitalizations for mental disturbance, neurological problems and head
injuries” Anderson answered “None.” Id. at 1126. He also answered “None”
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when asked to list all outpatient contacts for the same. Id. Asked if he “ever
suffered hallucinations, blackouts, flashbacks or other adverse effects,” Anderson
answered “No.” Id. at 1136.
Stone evaluated Anderson’s answers to the questions posed outside of
Anderson’s presence. Stone met with Anderson several times, and at no point
during those meetings did Anderson divulge any information about a history of
sexual abuse, drug use, or head trauma that differed from, or was inconsistent with,
what he disclosed in completing the Questionnaire.
About three weeks prior to the commencement of Anderson’s trial, Stone
moved the court to appoint Dr. Elizabeth McMahon to evaluate Anderson.24 The
court granted his motion. Dr. McMahon was a forensic psychologist with over
thirty years of experience, including involvement in the penalty phase in more than
100 capital murder cases. Stone briefed Dr. McMahon on Anderson’s case, asking
her to evaluate Anderson with an eye toward developing mitigating evidence.
Dr. McMahon met with Anderson on four occasions amounting to a total of
about thirteen hours. During this time she conducted a full neuropsychological
screening, which included the sessions with Anderson and the results of a

24

Stone deliberately delayed having Dr. McMahon appointed until he had assembled all
the background information he anticipated she would need to perform her evaluation. Among
other things, Dr. McMahon would need a transcript of Marisha Scott’s deposition, which, due to
the severity of Scott’s injuries, could not be taken until two and one-half weeks prior to the trial.
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comprehensive battery of psychological tests.25 In the sessions with Anderson, and
in an effort to obtain evidence to counter the State’s claim that Heather Young’s
murder was premeditated, Dr. McMahon tried to get Anderson to remember
anything that might have precipitated the shooting. He told her that he could
recall the shooting, but not why the guns went off. Based on her sessions with
Anderson and the results of the tests she had administered, Dr. McMahon
concluded that Anderson was suffering from a great deal of anxiety which could be
causing his memory loss. On her recommendation, Stone obtained the court
appointment of Dr. Jacqueline Whitmore, a psychologist specializing in
hypnotism, in the hope that, under hypnosis, Anderson would reveal further details
about what took place after he ordered the tellers into the bank’s vault. Anderson
was hypnotized but revealed nothing more than what he had told his attorneys and
Dr. McMahon.
In addition to meeting with Anderson and administering a battery of
psychological tests, Dr. McMahon reviewed, among other items, “discovery
material compiled by the State, statements made by the defendant to the police,
depositions of Category ‘A’ witnesses (including a videotape of [Scott’s]
25

McMahon administered the following tests on September 6 and 8, 2000: Wechsler
Adult Intelligence Scale-Revised (WAIS-R), Wisconsin Card Sorting Test, Minnesota
Multiphasic Personality Inventory-2 (MMPI-2), Rorschach Ink Blot, Memory Assessment
Scales, Stroop Color Word Test, Trail Making Tests A and B, Personality Disorder
Questionnaire-Revised, Projective Drawings Test, Hand Test, Competency Assessment, and a
Miranda Rights Assessment. State Court––Collateral Appeal Record, vol. 7, at 1034.
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deposition), school records, and letters written and received by the defendant since
his arrest.” State Court––Collateral Appeal Record, vol. 7, at 1034. Based on this
information, Dr. McMahon concluded that there was no evidence of anything “that
would serve as either statutory or non-statutory mitigation factors before the Court
with respect to sentencing.”26 Id. at 1035.
Based on Dr. McMahon’s report and Anderson’s answers on the
Questionnaire, Anderson’s attorneys finalized their trial strategy. They decided
not to attack the overwhelming evidence of guilt the State would be introducing,
reasoning that such a strategy would be ineffective if not counterproductive.
Instead, their plan of attack would be to “humanize” Anderson. They would use
the guilt phase of the trial as an “extension” of the penalty phase, and in both
phases would do their best to portray Anderson in a way that would generate the
maximum amount of sympathy for him and hopefully persuade the jury not to
recommend a death sentence. Stone thought that a life sentence may be possible if
he and Doud could convince the jury that the murder was not premeditated. 27
Counsel decided against presenting evidence of Anderson’s occasional use of

26

Dr. McMahon’s report to Stone was dated October 10, 2000. Dr. McMahon gave
Stone a verbal report with precisely the same information earlier, prior to the commencement of
Anderson’s trial.
27

Stone thought that a jury finding that Anderson never intended a murder to occur
would eliminate the aggravating circumstance that the murder “was committed in a cold,
calculated, and premeditated manner without any pretense of moral or legal justification.” See
Fla. Stat. § 921.141(5)(i).
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alcohol and marijuana in the past as potential mitigation, believing that such
evidence would likely be more harmful than helpful.
B.
The trial began on September 25, 2000. In the guilt phase, the State
established the general narrative recited above. The only witness to testify for the
defense was Anderson himself. In his testimony, Anderson admitted committing
the robbery and shooting the tellers. He explained that he had gone to the bank
planning to steal the money he needed to take care of his mother, a disabled cancer
survivor, but that shooting the tellers was not part of his plan. He remembered
taking the tellers to the bank’s vault and firing three shots, but he said the gun went
off accidentally. 28 He denied asking the tellers which one wanted to die first.
On cross-examination, the State demonstrated that Anderson had a clear
recollection of many events that took place in the vault. He remembered ordering
the tellers to get the liner bag out of the trashcan, and he recalled where the two
tellers were positioned in the vault before he fired the shots. He also remembered
firing three shots, not ten, and repeated what he had said on direct examination:
that the gun went off by accident. When asked why the details were “blanking out

28

On cross-examination, in order to undercut Anderson’s assertion that the shooting was
accidental, counsel for the State emphasized that in firing Cunningham’s revolver, one had to
pull back the hammer before each shot and that his mother’s revolver had trigger pull of
seventeen and one-half pounds.
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on him,” Anderson responded that “[i]t’s not blanking out, it’s just been how it’s
been for eighteen months.” State Court––Trial Transcript, vol. 16, at 2140.
On October 3, 2000, the jury convicted Anderson of the first-degree murder
of Heather Young, the attempted murder of Marisha Scott, armed bank robbery of
the USB, and grand theft of Cunningham’s revolver
The penalty phase of the trial began on October 5, 2000, and lasted one day.
Anderson’s defense team went to great lengths to find witnesses who could present
mitigating testimony. First, Anderson and his mother separately prepared a list of
potential witnesses. Stone and Doud, with the help of their investigator, Williams,
attempted to contact and interview every person on these lists. Some of these
interviews provided leads to other potential witnesses, who were then contacted
and interviewed. The defense team also spent time in Anderson’s neighborhood
trying to identify witnesses that neither Anderson nor his mother had mentioned.
Some of the potential witnesses they interviewed were reluctant to get involved; at
least four, including the pastor of Anderson’s church, simply refused to testify.
Counsel decided not to call anyone they thought might prejudice Anderson’s case.
The State’s case in the penalty phase was brief. The State began by
informing the jury that it was seeking a death sentence recommendation based on
four aggravating circumstances: (1) Heather Young’s murder was cold, calculated

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and premeditated; 29 (2) the murder was committed for pecuniary gain; 30 (3)
Anderson committed the murder after having been convicted of a felony and while
under Community Control; 31 and (4) he had been convicted of a violent felony––
the attempted murder of Marisha Scott.32
After pointing to the evidence presented in the guilt phase, which the State
said established the aggravating circumstances it was relying upon, the State called
two witnesses, Heather Young’s long-time boyfriend, David Curbow,33 and her
brother Robert Young. Both testified to Young’s upbeat nature and zest for life.
The defense’s case consisted of the testimony of ten witnesses including
Anderson. The witnesses, mostly family friends, testified that they had known
Anderson for lengthy periods of time and that he was a church-going, helpful
member of the community who often came to a person’s aid without being asked
and without compensation. One of Anderson’s former employers testified that he
had been a model employee. Anderson’s mother testified that he was a wonderful
child who had helped her immensely as her health declined. He was never abused
29

Fla. Stat. § 921.141(5)(i).

30

Id. § 921.141(5)(f).

31

Id. § 921.141(5)(a).

32

Id. § 921(5)(b). Although the attempted murder of Marisha Scott was part of the same
robbery as the murder of Heather Young, “[c]ontemporaneous convictions prior to sentencing
can qualify as previous convictions of violent felony and may be used as aggravating factors.”
Wasko v. State, 505 So. 2d 1314, 1317 (Fla. 1987).
33

Young’s boyfriend, David Curbow, testified that while he and Young were not
married, they considered themselves to be husband and wife.
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as a child and was never quick to anger. Anderson testified about his high school
extracurricular activities and his extensive involvement with his church, including
performing a leadership role in numerous youth group events.
The penalty phase of the case concluded with a unanimous jury
recommendation that Anderson receive the death penalty. 34
On January 11, 2001, the court, following the jury’s recommendation,
sentenced Anderson to death. The court found the four aggravating circumstances
the State had asked the jury to find, assigning varying degrees of importance or
“weight” to each: (1) that the capital felony, Heather Young’s murder, was a
homicide and was committed in a cold, calculated, and premeditated manner
without any pretense of moral or legal justification (great weight); (2) that the
capital felony was committed for pecuniary gain (moderate weight); (3) that the
capital felony was committed by a person previously convicted of a felony and
under sentence of imprisonment or placed on Community Control or on felony

34

Pursuant to Fla. Stat. § 921.141(2), the jury was tasked with the following
responsibility:
After hearing all the evidence, the jury shall deliberate and render an advisory
sentence to the court, based upon the following matters:
(a) Whether sufficient aggravating circumstances exist . . .
(b) Whether sufficient mitigating circumstances exist which outweigh the
aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sentenced to
life imprisonment or death.
The court instructed the jury that in order to recommend the imposition of a death sentence, it
had to find the existence of at least one aggravating factor beyond a reasonable doubt.
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probation (little weight); and (4) that that the defendant was convicted of a
previous violent felony, the attempted murder of Marisha Scott (great weight).
The court found no statutory mitigating circumstances,35 and ten nonstatutory mitigating circumstances, again assigning a separate degree of
importance or weight to each.36 After sentencing Anderson to death for the capital
murder, the court sentenced him to life imprisonment for the attempted murder of
Marisha Scott, life imprisonment for robbing the bank with a firearm, and five
years’ imprisonment for the grand theft of Cunningham’s revolver.

35

Under Fla. Stat. § 921.141(6),

Mitigating circumstances [are]:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence
of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the
act.
(d) The defendant was an accomplice in the capital felony committed by another
person and his or her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination
of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her
conduct or to conform his or her conduct to the requirements of law was
substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant’s background that would mitigate
against imposition of the death penalty.
36

The 10 non-statutory mitigating circumstances were (1) remorse for conduct
(moderate weight); (2) cooperation with law enforcement (some weight); (3) strong religious
faith and involvement in church activities (substantial weight); (4) strong community
involvement (moderate weight); (5) loving relationship with family (little weight); (6)
employment history (little weight); (7) potential for rehabilitation (little weight); (8) no prior
history of violence (substantial weight); (9) appropriate courtroom demeanor (little weight); and
(10) willingness to plead (little weight).
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C.
Anderson appealed his convictions and death sentence to the Florida
Supreme Court, seeking a new trial or alternatively the imposition of a sentence of
life imprisonment for the murder.37 The Supreme Court rejected claims of error
and affirmed his convictions and death sentence. Anderson v. State, 863 So. 2d
169 (Fla. 2003). Referring to the sentence, the court “specifically not[ed] that the
jury recommended the death sentence by a unanimous vote and one of the
aggravating factors found by the trial judge was that Anderson had been convicted
of a prior violent felony for the contemporaneous conviction of the attempted
murder of Scott.” Id. at 189. Anderson sought certiorari review of the Florida
Supreme Court’s decision in the United States Supreme Court, but his petition was
denied. Anderson v. Florida, 541 U.S. 940, 124 S. Ct. 1662, 158 L. Ed. 2d 363
(2004).
III.
Unable to obtain relief for his convictions and death sentence from either the
Florida Supreme Court or the United States Supreme Court, Anderson, represented
by Capital Collateral Counsel, 38 returned to the Lake County Circuit Court seeking
collateral relief pursuant to Florida Rule of Criminal Procedure 3.851. On March
37

Only one of the issues he raised is before us in this appeal, and we dispose of it
summarily in note 6, supra.
38

Anderson’s counsel on collateral attack was David R. Gemmer, Assistant Capital
Collateral Regional Counsel.
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18, 2005, Anderson moved the court 39 to vacate his convictions and death sentence
on several grounds including the one before us in this appeal, a claim that he
received ineffective assistance of counsel during the penalty phase of his case.
Anderson alleged that his attorneys’ performance during that phase failed to
comport with the Sixth Amendment standard for effective assistance of counsel
established by the United States Supreme Court in Strickland v. Washington and
that this failure prejudiced his defense. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984). The attorneys’ performance was deficient, Anderson
alleged, for two reasons: (1) his attorneys failed to uncover and present to the jury
evidence that he was sexually abused as a child by his cousin, Michael Green; and
(2) the attorneys failed to discover that he suffered from brain damage, borderline
personality disorder, and post-traumatic stress disorder, caused by the sexual
abuse. Anderson posited that these failures precluded counsel from establishing
two statutory mitigating circumstances: (1) that he was “under the influence of
extreme mental or emotional disturbance”; and (2) that his “capacity . . . to
appreciate the criminality of his . . . conduct or to conform his . . . conduct to the
requirements of law was substantially impaired.” Fla. Stat. § 921.141(6)(b), (f).
Presenting those mitigating circumstances to the jury, Anderson argued, would

39

Anderson presented his motion to the judge who presided over his prosecution and
sentencing.
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have made it likely that the outcome of penalty phase of his trial would have been
different.
A.
The Circuit Court held an evidentiary hearing on Anderson’s motion from
January 23 to 25, 2006. Anderson presented evidence that, as a child, he had been
the victim of Michael Green’s sexual abuse and that the shooting that took place in
the USB’s vault was caused by his post-traumatic stress disorder, borderline
personality disorder, brain damage, and the effects of his chronic drug use. This
evidence came in the form of testimony from his cousin, Raymond Green, and two
mental health experts, Drs. Jorge Villalba and Robert Berland, whom postconviction counsel had retained to evaluate Anderson. Anderson also called Dr.
Elizabeth McMahon to question her about the evaluation she performed on him
prior to trial.40
Raymond Green testified that he spent time with Anderson during their
childhood since Green’s maternal grandmother lived just across the street from the
Andersons. On occasion, Anderson would spend the night with Green at his
grandmother’s home, sleeping with Green in his bedroom.

40

Anderson also called as witnesses Assistant Public Defenders William H. Stone and
Clinton L. Doud, Investigator J.T. Williams, and Karen Nelson, the bailiff who worked during
his trial. Nelson’s testimony has no relevance to the issues here.
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Raymond said that Michael Green, his uncle who was eight year older than
he was, lived with his grandmother. When Raymond was only five years old,
Michael began forcing him to perform oral sex in Michael’s bedroom at night.
When Anderson was there, Michael would do the same thing to him. According to
Raymond, Michael would, on occasion, anally rape Anderson when Anderson was
staying in Raymond’s room.
Dr. Villalba, a psychiatrist board certified in forensic psychiatry, 41 testified
that Anderson suffered from post-traumatic stress disorder as a result of Michael
Green’s sexual abuse, as well as borderline personality disorder. In Villalba’s
opinion, Anderson was under the influence of extreme mental and emotional
disturbance at the time of the shooting.
Villalba based his opinion on a four-hour session with Anderson, a review of
Anderson’s videotaped interrogations by the police, and a Personality Assessment
Inventory (“PAI”). 42 By his estimate, half of his conclusions were based on
Anderson’s self-reported symptoms and the other half on the results of the PAI.
Dr. Villalba said that Anderson’s history of childhood sexual abuse left him
with post-traumatic stress disorder which caused him to suffer from dissociative
episodes. He described these dissociative episodes as a dream-like state “where
41

Dr. Villalba had been board certified for one year. Anderson’s was the first capital
murder case in which he had been involved.
42

Dr. Villalba testified that a PAI is similar to the MMPI-2 but that he wanted to try a test
that had not been given to Anderson in the past.
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one feel[s] like things are not real.” State Court––Collateral Appeal Record, vol. 9,
at 1505. Although Dr. Villalba acknowledged that Anderson had taken many
deliberate steps in preparation for the robbery, he opined that “the intense level of
stress during the actual committing of the robbery would be a precipitating or
contributing factor to the dissociation.” Id. at 1506. Dr. Villalba also stated that
Anderson told him that one of the bank tellers closed the glass vault door on his
hand and one of them may have called him a “stupid . . . derogatory racial ‘N’
word.”43 Id. at 1532. Dr. Villalba postulated that this might have triggered the
onset of a post-traumatic stress disorder dissociative episode.
On cross-examination, Dr. Villalba admitted that manipulative behavior was
typical for those with borderline personality disorder such as Anderson’s and that
Anderson had an incentive to make his mental health appear worse than it actually
was.
Dr. Berland, a forensic psychologist with twenty-seven years’ experience,
testified that Anderson suffered from a psychotic disturbance while in the bank’s
vault such that his capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was substantially impaired.
43

When asked on cross-examination whether he had reviewed the trial record for any
support for either of these assertions, Dr. Villalba said he had not. In fact, there is no support in
the trial record for either assertion. During his testimony in the collateral attack evidentiary
hearing, Stone testified that Anderson had never said anything about the tellers calling him
stupid or a racial slur even though Stone had directly asked him about provocation looking for
evidence of this sort.
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Dr. Berland met with Anderson for a total of four hours and administered no
tests of his own; he relied, instead, on the tests Dr. McMahon administered when
she evaluated Anderson prior to trial. Based on his time with Anderson and his
analysis of Dr. McMahon’s test results, Dr. Berland concluded that Anderson had
suffered brain injury from a head-on car accident that Anderson said he had been
involved in at age twenty-two. Although Anderson informed Dr. Berland about
the accident, 44 he failed to mention it in responding to the Questionnaire inquiries
about head injuries.
Anderson told Dr. Berland about mental health problems that he had omitted
from the Questionnaire, including that “for a long time [he had] experienced the
feeling that people in public places were either watching him or talking about him
as he passed” and that he often heard voices calling his name. Id. at 1558–59.
Based on these self-reported symptoms and his analysis of the tests Dr. McMahon
administered,45 Dr. Berland opined that Anderson suffered from brain damage that

44

Dr. Berland’s investigator confirmed Anderson’s description of the episode by
interviewing the passenger in the car, Marty Kirens. Dr. Berland thereafter asked Anderson’s
mother about the accident. She said that it occurred after Anderson had been admitted to college.
She described that for several days following the accident, Anderson had headaches, nausea and
vomiting, and memory problems and that he would stare off into space for long periods of time
apparently looking right through her. She also noted that he would become angry over little
things, show symptoms of vision problems, and display a hand tremor that lasted two or three
months. This account stands in contrast to her testimony at trial which portrayed Anderson as
always healthy and never quick to anger.
45

Dr. Berland based his conclusion primarily on the results Dr. McMahon obtained from
the MMPI-2 and the WAIS-R she administered to Anderson prior to trial.
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had “either caused or contributed” to a psychotic disturbance in the bank’s vault.
Id. at 1563.
Dr. Berland also testified that Anderson had a serious alcohol and marijuana
abuse problem. Anderson told Dr. Berland that he was part of a group called the
“Breakfast Club” that met every morning, usually at his friend Kerry
Cunningham’s house, to consume copious amounts of beer and marijuana. Dr.
Berland met with Cunningham to ask him about these meetings. Cunningham
denied that the Breakfast Club ever existed, claiming that on the rare occasion
when the two got together, they merely drank beer. Dr. Berland admitted, on
cross-examination by the State, that Anderson had a “pretty strong incentive” to
mislead him, and that Anderson had “a substantial history of deceiving and
misleading people over the course of his life.” Id. at 1618–19.
Anderson called Dr. McMahon to explain the battery of tests she had
performed on Anderson prior to trial and the conclusions she had reached. On
cross-examination by the State, Dr. McMahon was asked about the conclusions
reached by Drs. Villalba and Berland. She stated that, even taking into account the
information Anderson provided to Drs. Villalba and Berland but not to her, she
saw nothing to suggest that Anderson had brain damage 46 and borderline

46

Dr. McMahon felt that Dr. Berland inappropriately interpreted the results she had
obtained from the MMPI-2 that she administered to Anderson. In her opinion, all of the results
of that test were within normal limits and only reflected anxiety rather than a psychosis.
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personality disorder47 or that his actions at the bank were caused by post-traumatic
stress disorder from being sexually abused as a child.48 Dr. McMahon also
testified that, while she had been retained to evaluate Anderson closer to his trial
date than is typical, she had adequate time to thoroughly evaluate his mental
health.
As part of its rebuttal to Anderson’s ineffective assistance of counsel claim,
the State called Dr. Harry McClaren, 49 whom the State employed in response to
the claims of Anderson’s Rule 3.851 motion. Dr. McClaren testified that in
preparing for the evidentiary hearing, he conducted an exhaustive investigation
into Anderson’s mental health. He began by interviewing Anderson twice. He
thereafter interviewed several police officers, Anderson’s trial attorneys,
Anderson’s mother, Kerry Cunningham, and Dr. McMahon. In addition, he read

47

Dr. McMahon reasoned that if Anderson suffered from borderline personality disorder,
the disorder would have been revealed in the MMPI-2 and WAIS-R tests. Based on her analysis
of these tests’ results, however, the disorder was not shown. Moreover, nothing in Anderson’s
Rorschach test results indicated that he had the disorder.
48

According to Dr. McMahon,

PTSD . . . occurs when something that’s happening in the here and now is reflective of or
brings forth memory of what happened in the past. Obviously with people in war time
when a car backfires it sounds like a gun firing. There’s got to be a similarity. So unless
[Anderson] can show me some similarity between being in that bank vault and being
molested by his cousin, I’ve got to say that he may have PTSD, [but there would have to
be some showing of] what way . . . being in the bank vault reminded him of some
interaction with his cousin for it to be pertinent.
State Court––Collateral Appeal Record, vol. 10, at 1644.
49

Dr. McClaren had been involved in hundreds of capital cases, working at the behest of
both the prosecution and the defense.
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the transcripts and viewed the videotape of the police interrogations of Anderson.
He also read the transcript of Anderson’s trial, the briefs filed in his direct appeal
to the Florida Supreme Court and that court’s decision, Anderson’s high school
and college records, his medical records, his criminal history records, and Drs.
Villalba’s and Berland’s reports. Furthermore, after interviewing Anderson, he
had Anderson take a full battery of psychological tests 50 and analyzed the results of
those tests.
According to Dr. McClaren, nothing in his investigation led him to conclude
that Anderson had brain damage, post-traumatic stress disorder, borderline
personality disorder, or experienced a psychotic episode in the bank’s vault. Dr.
McClaren also suggested that the inconsistencies in Anderson’s stories might
reflect an attempt by Anderson to mislead the court. In making this suggestion, Dr.
McClaren emphasized Anderson’s “track record of deception.”51 Dr. McClaren

50

McClaren prescribed an MMPI-2; a Wechsler Adult Intelligence Scale–Third Edition
(WAIS-3); a Rotter Incomplete Sentences Blank (RISB); and a Millon Clinical Multiaxial
Inventory–Third Edition (MCMI-3).
51

Dr. McClaren explained that this “track record” included Anderson’s embezzlement
from Bethune-Cookman, his history of writing bad checks, his misrepresentations to his mother
about graduating from college and his legal problems in Volusia county, his denying a history
sex abuse in responding to the Questionnaire, his inconsistent statements to the different mental
health professionals who evaluated him, his claim at the USB that he was a student at Valencia
Community College, his representations to the probation officers that he had obtained the
balance of the restitution he owed Bethune-Cookman when he had not, his purchase of orange
juice and donuts as a supposed thank you for the bank tellers’ time, his representation to the
arresting officers that he was the janitor, the conflict in testimony between Anderson and Kerry
Cunningham about the extent of his substance abuse at the Breakfast Club, and his inconsistent
statements during police interrogation. State Court––Collateral Appeal Record, vol. 11, at 2024.
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also noted that Anderson had strong motivation to remember that he fired only
three shots, because if he testified that he remembered all ten, it would mean he
consciously used both revolvers, which would indicate an execution-style murder.
This motivation, according to Dr. McClaren, may also have been the reason for
Anderson’s failure to remember asking the tellers “[w]ho wants to die first?”
On cross-examination by collateral counsel, Dr. McClaren acknowledged
that he had diagnosed Anderson with an anxiety disorder and that post-traumatic
stress disorder was a form of anxiety disorder. He nevertheless maintained that he
saw no link or connection between the sexual abuse Anderson had suffered as a
child and the shooting he had committed at the bank. When asked about the short
interval between Dr. McMahon’s appointment (to evaluate Anderson) and the trial,
Dr. McClaren stated that although a mental health evaluation normally takes place
six months to a year prior to trial, he found nothing in Dr. McMahon’s evaluation
of Anderson that could be considered incomplete in any way.
B.
On January 24, 2007, the Circuit Court issued an order denying in full the
claims Anderson presented in his Rule 3.851 motion. State v. Anderson, No. 99572 (Fla. 5th Cir. Ct.). The court found no merit in Anderson’s claim that his
attorneys’ performance in seeking mitigating evidence for presentation to the jury
as constitutionally deficient. The court noted the steps the attorneys took in
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preparing for the penalty phase of the case––emphasizing that (1) they employed a
forensic psychologist, Dr. McMahon, to evaluate Anderson’s mental health and
provide, if possible, an explanation for Anderson’s conduct at the bank; and (2)
they interviewed the numerous potential witnesses identified in Anderson’s
response to the Questionnaire and on the lists that he and his mother had prepared.
Turning to the attorneys’ failure to discover the sexual abuse Anderson
experienced at the hands of Michael Green, the court said that counsel “should not
[have been] expected to investigate potential incidents of sexual abuse when
[Anderson] did not suggest any abuse had occurred and actually concealed the
abuse from Counsel and the mental health expert involved in the case.”
C.
Anderson appealed the Circuit Court’s decision to the Supreme Court of
Florida. Anderson v. State, 18 So. 3d 501 (Fla. 2009). Among the issues he raised
was the one we address today: whether he was denied effective assistance of
counsel in the penalty phase of his case. As in the Circuit Court, Anderson argued
that his attorneys’ performance was deficient in two respects: (1) they failed to
uncover and present to the jury evidence of the sexual abuse he suffered from
Michael Green; and (2) they failed to employ Dr. McMahon in time to uncover and
present to the jury the mental health evidence Drs. Villalba and Berland found—
namely, that Anderson had brain damage, borderline personality, and post36

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traumatic stress disorder caused by the sexual abuse. The attorneys would have
discovered such evidence, Anderson argued, had they given Dr. McMahon
sufficient time and background information to evaluate Anderson.
Addressing Anderson’s first point, the Florida Supreme Court found
counsel’s failure to uncover the sexual abuse understandable and, moreover,
excusable, “in large part because Anderson himself was a barrier to the discovery
of this evidence.” 52 Id. at 509. The court emphasized that the Questionnaire
counsel had Anderson fill out was facially quite thorough and that Anderson, in
responding to its several questions about sexual abuse, had explicitly denied
having suffered any such abuse. In concluding that Anderson had failed to
demonstrate Strickland prejudice, the court pointed to the Circuit Court’s findings
of four aggravating circumstances, including that the murder was cool, calm, and
premeditated and that Anderson had been convicted of a prior violent felony,
which “are ‘among the weightiest of aggravators.’” Id. at 510 (quoting Deparvine
v. State, 995 So. 2d 351, 381 (Fla. 2008)). Moreover, the fact that the murder of
Heather Young was the result of a bank robbery plan “replete with instances of
deception” further supported the jury’s decision to recommend the death penalty.
Id.
52

In reaching this conclusion, the court pointed to Strickland’s language that “when a
defendant has given counsel reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.” 466 U.S. at 691, 104 S. Ct. at 2066.
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Addressing Anderson’s second point, the Supreme Court found that his
attorneys were not deficient in waiting until three weeks before trial to employ Dr.
McMahon and, alternatively, that the alleged delay resulted in no prejudice. Id. at
511–13. The Florida Supreme Court believed that trial counsel’s explanation of
why they delayed Dr. McMahon’s employment was reasonable and that the delay
did not prevent Dr. McMahon from performing a competent and thorough
evaluation. Dr. McMahon testified during the 3.851 evidentiary hearing that she
had sufficient time to perform the task she undertook. Id. at 511 She met with
Anderson on four separate occasions, gave him a full neuropsychological screening
and battery of tests, and had ample time to evaluate the screening and the test
results in conjunction with what she observed in her sessions with Anderson. Id.
She found nothing to explain why Anderson shot the tellers. Drs. Villalba and
Berland found that the shooting was caused by Anderson’s mental deficiencies—a
brain damage induced psychotic disturbance, or a dissociative episode caused by
post-traumatic stress disorder caused by Michael Green’s sexual abuse, or other
mental or emotional deficiency. Dr. McMahon disagreed. In the court’s mind,
“[t]he fact that Anderson has subsequently found experts whose opinions conflict
with McMahon’s does not render her evaluation inadequate.” Id. at 511–12.
“Trial counsel [were] not required to continue searching for an expert who would
give a more favorable assessment of Anderson’s mental status.” Id. at 512.
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Assuming, for sake of argument, that counsel’s mental health preparation
did not measure up to Strickland’s performance standard, the Supreme Court
concluded that Anderson had not shown Strickland prejudice. The court
emphasized that the record of the evidentiary hearing revealed strikingly different
expert opinions as to Anderson’s mental health at the time he entered the bank and
committed the offenses for which he was charged. Id. at 513. “Considering the
overwhelming evidence establishing the aggravating circumstances and the
inconclusive opinions regarding Anderson’s mental health, the court’s confidence
in the outcome [was] not undermined.” Id.
IV.
On October 14, 2009, Anderson petitioned the United States District Court
for the Middle District of Florida for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, presenting seventeen claims for relief. Anderson v. Sec’y, Fla. Dep’t of
Corr., No. 09-450, 2011 WL 2784192 (M.D. Fla. July 15, 2011). The District
Court examined his claims through the lens provided by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA,”) and then denied them. 53 It did so because the Supreme Court of
Florida’s adjudications of Anderson’s claims were neither “contrary to,” nor
53

The court denied Anderson’s claims without an evidentiary hearing after considering
the records of Anderson’s trial and Rule 3.851 post-conviction proceeding and the Florida
Supreme Court’s disposition of his appeals from his convictions and death sentence and from the
Circuit Court’s denial of Rule 3.851 relief.
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“involved an unreasonable application of, clearly established” United States
Supreme Court precedent, i.e., the holding in Strickland. Id. at *5.
The District Court found no error in the Supreme Court’s rejection of
Anderson’s claim that his attorneys’ performance during the penalty phase of his
case failed Strickland’s performance test. Id. at *2–4. Like the Supreme Court,
the District Court noted that counsel’s failure to find out about the Michael Green
sexual abuse was caused by Anderson himself, in that he repeatedly denied having
suffered any such abuse. Id. at *3. And counsel’s employment of Dr. McMahon
three weeks prior to trial did not preclude her from conducting a thorough
evaluation into whether he had brain damage or a mental illness that might have
mitigated his behavior. Id. at *4. The District Court was as impressed as the
Florida Supreme Court was with Dr. McMahon’s extensive experience and, in
particular, with the thoroughness of her evaluation of Anderson, which included
conducting sessions with him on multiple occasions, giving him a full battery of
psychological tests, reviewing the evidence the State would present to the jury, and
seeking a mental health explanation for his behavior at the bank—especially in the
vault when the shooting occurred. Id. In the end, the District Court, turning to the
Florida Supreme Court’s resolution of the Strickland prejudice issue, “reviewed the
totality of the mitigation evidence presented at Anderson’s trial and at the postconviction proceedings and agree[d] with the Florida Supreme Court that any
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mitigating evidence, including any mental health evidence, would not have
changed the result in this case.” Id.
V.
Anderson now appeals the District Court’s decision. To enable the appeal to
go forward, we issued a certificate of appealability on one issue: whether
Anderson’s attorneys rendered ineffective assistance of counsel during the penalty
phase of his case by failing to conduct a reasonable investigation for mitigation
evidence and thereby failing to present to the jury the evidence a reasonable
investigation would have uncovered.54 As the District Court did, we examine this
claim and the Florida Supreme Court’s decision denying it through AEDPA’s lens.
Pursuant to AEDPA, a writ of habeas corpus shall not be granted under 28
U.S.C. § 2254(d) unless the adjudication

54

28 U.S.C. § 2253 provides, in relevant part:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court
...
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.

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(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.
The phrase “clearly established Federal law” refers only to “the holdings, as
opposed to the dicta,” of the Supreme Court decisions extant at the time of the
State court adjudication. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495,
1523, 146 L. Ed. 2d 389 (2000). A State court decision is “contrary to” a Supreme
Court holding “if the state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” Id. at 412–13, 120 S. Ct. at 1523. A State court decision involves an
unreasonable application of a Supreme Court holding if the State court correctly
identifies the holding but unreasonably applies it to the facts of the prisoner’s case.
Id. at 407, 120 S. Ct. at 1520.
An unreasonable application of a Supreme Court holding is different from an
incorrect application of a Supreme Court holding. Harrington v. Richter, __U.S.
__, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011). A federal habeas court might
consider the State court’s application of a Supreme Court holding incorrect were it
reviewing the State court’s decision as an appellate court on direct appeal, but the
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habeas court is not conducting such review. AEDPA, having limited the federal
court’s authority to grant the writ, precludes the court from issuing the writ even
when it “concludes in its independent judgment that the state-court decision
applied [the Supreme Court holding] incorrectly.” Woodford v. Visciotti, 537 U.S.
19, 24–25, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002).
Section 2254(d)’s “standard for evaluating state-court rulings” is therefore
“highly deferential,” id. at 24, 123 S. Ct. at 360 (internal quotation marks omitted),
and “difficult to meet.” Harrington, __ U.S. at __, 131 S. Ct. at 786. It “demands
that state-court decisions be given the benefit of the doubt.” Woodford, 537 U.S.
at 24, 123 S. Ct. at 360. To obtain habeas relief, a state prisoner must show that
“there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.” Harrington, __ U.S. at
__, 131 S. Ct. at 786. Put another way, the state court’s ruling must be “so lacking
in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id.
The Supreme Court holding governing the disposition of an ineffective
assistance claim, such as Anderson’s, is found in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To make out a claim, the
petitioner must prove that his attorney’s performance was deficient. If deficient,
the petitioner must also show that the deficiency prejudiced his defense, in that it
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“deprive[d] [him] of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.
Ct. at 2064. The District Court concluded that the Florida Supreme Court’s
decision denying Anderson’s ineffective assistance claim was neither contrary to,
nor an unreasonable application, of Strickland’s holding. Anderson contends that
the District Court erred, because the Florida Supreme Court’s decision cannot be
squared with Strickland’s holding as the Supreme Court of the United States has
applied the holding in more recent cases. 55
A.
In his petition for a writ of habeas corpus, Anderson alleged that the Florida
Supreme Court unreasonably applied Strickland based on the United States
Supreme Court’s application of Strickland in four cases: Williams v. Taylor, 529
U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), Wiggins v. Smith, 539 U.S.
510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), Rompilla v. Beard, 545 U.S. 374,
125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), and Porter v. McCollum, 558 U.S. 30,
130 S. Ct. 447, 175 L. Ed. 2d 398 (2009). In his brief on appeal, Anderson argues
that in addition to the holdings in these four cases, the Florida Supreme Court
disregarded the American Bar Association (ABA) Guidelines in effect at the time
of Anderson’s trial. Pet’r’s Br. at 27, 30. He submits that the holdings in the four
55

Because the District Court reached its decision on a cold record—the same record now
before this court—we review its decision de novo. Thus, our task, like the District Court’s, is to
determine whether the Florida Supreme Court misapplied controlling United States Supreme
Court precedent. See 28 U.S.C. § 2254(d)(1).
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cases and the ABA Guidelines, taken as a whole, demonstrate that his attorneys’
performance in the penalty phase was constitutionally deficient.
Notwithstanding this authority, Anderson’s claim is simply that the Florida
Supreme Court unreasonably applied Strickland. That decision established that a
defendant has a right under the Sixth Amendment to an attorney who performs
reasonably under “professional norms” prevailing at the time and in the location of
the criminal prosecution and in the circumstances of the case. Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065. Williams, Wiggins, Rompilla, and Porter—which postdate Anderson’s trial and involve trials in states other than Florida––do not provide
separate standards and rules governing attorney competence; rather, they provide
illustrative “application[s] of the principles elucidated in Strickland to a novel set
of facts.” Newland v. Hall, 527 F.3d 1162, 1197 (11th Cir. 2008); see also
Williams, 529 U.S. at 390, 120 S. Ct. at 1511(“[T]he merits of [the Williams]
claim are squarely governed by our holding in Strickland v. Washington.”);
Wiggins, 539 U.S. at 522, 123 S. Ct. at 2536 (“In highlighting counsel’s duty to
investigate [in Williams] . . . we applied the same ‘clearly established’ precedent of
Strickland we apply today.”). These cases are thus relevant only to the extent they
might demonstrate that Anderson’s counsel, confronted with circumstances like
those presented at the time and place of Anderson’s trial, failed to adhere to the
standard of reasonable representation.
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The ABA Guidelines do not establish independent standards for counsel;
rather, they are merely guides to be considered in determining whether an
attorney’s conduct was reasonable. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065
(“Prevailing norms as reflected in American Bar Association standards and the like
. . . are guides to determining what is reasonable, but they are only guides.”); see
also Bobby v. Van Hook, 558 U.S. 4, 8–9, 130 S. Ct. 13, 17, 176 L. Ed. 2d 255
(2009) (rejecting the treatment of ABA Guidelines as “inexorable commands with
which all capital defense counsel must fully comply”(internal quotation marks
omitted)). The ABA Guidelines “can be useful as ‘guides’ to what reasonableness
entails, but only to the extent that they describe the professional norms prevailing
when the representation took place.” Van Hook, 558 U.S. at 7, 130 S. Ct. at 16.
Strickland required that Anderson’s attorneys make a reasonable
investigation into “possible mitigating factors and ma[k]e a reasonable effort to
present mitigating evidence to the sentencing court.” Heynard v. McDonough, 459
F.3d 1217, 1242 (11th Cir. 2006); see also Grayson v. Thompson, 257 F.3d 1194,
1225 (11th Cir. 2001). Our assessment of counsel’s performance of this task is
“highly deferential,” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th
Cir. 2007), and contains “‘a strong presumption’ that counsel’s performance was
reasonable and that counsel ‘made all significant decisions in the exercise of
reasonable professional judgment.’” Chandler v. United States, 218 F.3d 1305,
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1314 (11th Cir. 2000) (en banc) (quoting Strickland, 466 U.S. at 689–90, 104 S.
Ct. at 2065–66). We must make “every effort . . . to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466
U.S. at 689, 104 S. Ct. at 2065.
The “burden of establishing that [a] lawyer’s deficient performance
prejudiced [the petitioner’s] case is also high.” Van Poyck v. Fla. Dep’t of Corr.,
290 F.3d 1318, 1322 (11th Cir. 2002). The petitioner cannot prevail simply by
demonstrating that “the erro[r] had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Rather, the
petitioner must show a reasonable probability “that, absent the error[], the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2069. Only when
this balancing produces “a probability sufficient to undermine confidence in the
outcome” will relief be granted. Id. at 694, 104 S. Ct. at 2068.
B.
The first aspect of Anderson’s ineffective assistance claim is that his
attorneys were ineffective in failing to discover that, as a child, he had been
sexually abuse by Michael Green and that Raymond Green could have testified to
that fact. He argues that the Florida Supreme Court unreasonably applied
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Strickland’s performance prong in rejecting this aspect of his claim. We disagree.
We do so in large part because of Anderson’s multiple denials of having been
sexually abused. Newland, 527 F.3d at 1202 (“In evaluating the reasonableness of
a defense attorney’s investigation, we weigh heavily the information provided by
the defendant.”); see also Chandler, 218 F.3d at 1324 (“The reasonableness of a
trial counsel’s acts, including lack of investigation . . . , depends critically upon
what information the client communicated to counsel.” (internal quotation marks
omitted)). “An attorney does not render ineffective assistance by failing to
discover and develop evidence of childhood abuse that his client does not mention
to him.” Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999); see also
Heynard, 459 F.3d at 1245 (“Given [petitioner’s] multiple denials of any history of
sexual abuse and trial counsel’s extensive and diligent efforts to build a mitigation
case, the Florida Supreme Court’s determination that counsel did not perform
deficiently in this regard was neither ‘contrary to,’ nor ‘an unreasonable
application’ of, United States Supreme Court precedent.”).
Anderson not only failed to mention any instance of sexual abuse, he
actively denied such abuse in his responses to the Questionnaire. Anderson does
not dispute these explicit denials but argues that counsel were nonetheless deficient
in failing to discover the abuse for two reasons––(1) they should not have left the
Questionnaire with him and expected him to answer its questions privately,
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without their assistance; and (2) they should have inquired further into the “red
flags” contained in his answers to the questions. Pet’r’s Br. at 30–32. We are not
persuaded.
First, it was not unreasonable for counsel to assume that Anderson would be
forthcoming and truthful in answering the questions presented. Counsel may well
have believed that he would be more forthcoming if given time and space to
answer the questions, free from the pressures of answering them verbally in their
presence. As it turned out, Anderson’s facially complete and thorough answers to
the questions posed indicated that he indeed may have benefitted from having the
time and space to respond. After reading his answers, his attorneys remarked that
the answers were the most thorough and complete they had ever seen.
Second, Anderson suggests that his answers created “red flags” requiring
counsel to inquire further into whether he had been abused as a child. He cites his
answers to two specific sections of the Questionnaire: (1) in the section that asked
how the deaths of any relative and friend he had listed affected him, Anderson
included a description for every single person he had listed other than Michael
Green; and (2) in the section that asked Anderson to underline problems he
experienced as a child, he indicated that he experienced “Extreme Fears,” was
“Accident Prone,” and got “Sick a Lot.” Id. at 31–32. We see no “red flags” here.

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Removing hindsight from our perspective, we consider how a reasonable
attorney would have reacted to these answers—answers that appeared to be
thorough, complete, and prepared by a person with every reason to be truthful. A
reasonable attorney would not necessarily assume that Anderson’s failure to
describe the effect Michael Green’s death had on him signaled that he was
withholding evidence of a troubled relationship with Green. Similarly, his mention
of the problems he encountered during childhood would not necessarily lead a
reasonable attorney to assume that he was hiding a history of sexual abuse. See
Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d 1255, 1285 (11th Cir. 2013) (“Trial
counsel cannot be faulted for failing to link [the defendant’s] history of drug abuse
with an otherwise-undisclosed history of child abuse.”). To the contrary,
Anderson’s forthcoming descriptions of the effect the deaths of other family
members had on him and his admission that he experienced the childhood
problems he mentioned would likely lead a reasonable attorney to believe that
Anderson was not withholding any potentially mitigating circumstances.
Anderson attempts to paint his counsel’s facially reasonable behavior as
constitutionally deficient by pointing to the ABA guidelines in effect at the time of
his trial and by analogizing his attorneys’ conduct to the attorney conduct the
Supreme Court faulted in Williams, Wiggins, Rompilla, and Porter. Anderson’s
brief makes no mention of how the standards governing counsel’s performance in
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those cases and set out in the ABA Guidelines compare to the standards of
professional competence prevailing in Florida courts at the time of his trial.
Instead, he implies that these four cases and the ABA Guidelines establish a
national standard of professional competence in capital cases.
The Supreme Court has explicitly rejected such an implication. In Van
Hook, the Court reversed the Sixth Circuit per curiam for erroneously substituting
the ABA Guidelines for local, contemporaneous professional norms:
“Restatements of professional standards, we have recognized, can be useful as
‘guides’ to what reasonableness entails, but only to the extent they describe the
professional norms prevailing when the representation took place.” 558 U.S. at 7,
130 S. Ct. at 16. In Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed.
2d 557 (2011), the Court faulted the Ninth Circuit for reading Williams, Wiggins,
and Rompilla as establishing a “constitutional duty to investigate” capital cases in
a particular, prescribed way: “Beyond the general requirement of reasonableness,
‘specific guidelines are not appropriate.’” Id. at __, 131 S. Ct. at 1406 (citations
omitted).
In addition to failing to ground either the ABA Guidelines or the Supreme
Court’s holding in the four cases in a proper Strickland analysis, Anderson fails to
account for the factual distinctions between the attorney behavior faulted in those
sources and his attorneys’ conduct in his case.
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First, Anderson cites a portion of the Commentary for Guideline 11.4.2 of
the 1989 ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases. 56 Pet’r’s Br. at 30. The relevant portion reads:
One hurried interview with the client will not reveal to counsel all the facts
counsel needs in order to prepare for a capital trial, appeal, or postconviction
review . . . . Any reluctance on the part of the client to disclose needed
information must be overcome, not a quick or easy task.
Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases guideline 11.4.2 cmt. (1989), available at
http://ambar.org/1989Guidelines.
Anderson’s attorneys went well beyond conducting “one hurried interview” in
preparing for the penalty phase of the case. In addition to having Anderson
respond to the Questionnaire, they conducted several interviews with Anderson
and a host of potential mitigation witnesses, retained Dr. McMahon to perform a
psychological evaluation, and even utilized a psychologist specializing in
hypnotism in an effort to uncover mitigating circumstances that might lead the jury
to forego the death penalty. This kind of professional behavior represents exactly
the type of thorough investigation capital counsel should conduct.

56

Guideline 11.4.2, which deals with client contact, provides as follows:

Trial counsel should maintain close contact with the client throughout preparation of the
case discussing . . . the investigation, potential legal issues that exist or develop, and the
development of a defense theory.
Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases guideline 11.4.2 (1989), available at http://ambar.org/1989Guidelines.

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Rompilla says nothing about situations––such as Anderson’s––in which the
defendant’s denials prevent counsel from discovering mitigating evidence.
Newland, 527 F.3d at 1205 (“In Rompilla the defendant’s own contributions to any
mitigation case were minimal, but this was irrelevant to the Court’s decision on
effectiveness.” (internal quotation marks omitted)). Rather, Rompilla focused on
counsel’s failure to examine a readily available file containing information about
the defendant’s prior conviction for rape and assault, despite knowing that the
prosecution planned to use the prior conviction during the penalty phase as an
aggravating factor. 545 U.S. at 383–84, 125 S. Ct. at 2463–64. Anderson’s
argument that his attorneys failed to develop his trust so that he would be
completely forthcoming in responding to the Questionnaire is not analogous to
counsel’s failure in Rompilla. See Newland, 527 F.3d at 1206–07 (“[Counsel’s]
failure to investigate petitioner’s childhood is not analogous to the defense
lawyer’s failure in Rompilla to review a readily available file, which the
prosecution intended to use in aggravation.”).
Williams says little about the standard of professional competence in capital
cases. There was no real dispute in that case that counsel had been ineffective: the
same judge who sentenced Williams also found that counsel’s performance had
been deficient, Williams, 529 U.S. at 370, 120 S. Ct. at 1501, and the Virginia
Supreme Court “assumed, without deciding, that trial counsel had been defective.”
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Id. at 371, 120 S. Ct. at 1501. Williams was, instead, a case about the prejudice
element of Strickland; the Virginia Supreme Court was held to have misinterpreted
Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), in
dealing with Strickland’s prejudice prong. Williams, 529 U.S. at 391–95, 120 S.
Ct. 1512–14. In Anderson’s case, the state courts found that counsel performed
effectively, and we are asked to overturn this finding despite the deference we
must accord it under AEDPA. Williams gives us little guidance on this point.
Wiggins involved a situation where counsel failed to consider possible
mitigation strategies despite being on notice of their existence. Counsel received a
one page description of the defendant’s personal history included in the
presentence report, which noted the defendant’s “misery as a youth” and described
his background as “disgusting.” Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536
(internal quotation marks omitted). The attorneys also had a record from the
department of social services which revealed that the defendant’s mother “was a
chronic alcoholic,” the defendant “was shuttled from foster home to foster home,”
and “on at least one occasion, [the defendant’s] mother left him and his siblings
alone for days without food.” Id. at 525, 123 S. Ct. at 2537. Counsel failed to
investigate these leads though “any reasonably competent attorney would have
realized that pursuing these leads was necessary to making an informed choice
among possible defenses.” Id. That is not the situation here. First, the “red flags”
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that Anderson points to above were a far cry from the explicit references to a
troubled childhood in Wiggins. Moreover, Anderson’s attempt to compare his own
attorneys’ conduct to the conduct at issue in Wiggins “overlooks a glaring
difference” as “the evidence of abuse in . . . Wiggins was documented extensively
in public records.” Callahan v. Campbell, 427 F.3d 897, 935 (11th Cir. 2005). In
Anderson’s case, “there [were] no similar records of the defendant’s abusive
childhood.” Newland, 527 F.3d at 1206.
Finally, Porter provides guidance for situations where counsel, confronted
with a fatalistic and uncooperative client, conducts a truncated investigation and
presents practically no mitigation evidence at sentencing. There, counsel became
discouraged during the preparation of mitigation evidence because the client was
“fatalistic and uncooperative.” Porter, 558 U.S. at 40, 130 S. Ct. at 453. As a
result, counsel “had only one short meeting with [the client ] regarding the penalty
phase . . . [and] did not obtain any of [his] school, medical, or military service
records . . . .” Id. at 39, 130 S. Ct. at 453. Because counsel ignored “pertinent
avenues for investigation of which [counsel] should have been aware,” the jury in
sentencing “heard almost nothing that would humanize [the defendant] or allow
them to accurately gauge his moral culpability.” Id. at 40–41, 130 S. Ct. at 453–
54. Here, Anderson’s trial team conducted an extensive investigation in preparing
for the guilt and penalty phases of the trial. Their efforts included the use of the
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Questionnaire, multiple sessions with Anderson, attempted interviews with every
potential mitigation witness, including all those identified by Anderson and his
mother, and the hiring of an experienced forensic psychologist and a psychologist
expert in hypnotism. In the penalty phase, his attorneys presented the testimony of
ten separate mitigation witnesses, each of whom buttressed the humanization
strategy the attorneys had chosen to pursue. Counsel’s performance stands in stark
contrast to the performance in Porter, where the Supreme Court found counsel
deficient for failing “to conduct some sort of mitigation investigation.” See id. at
40, 130 S. Ct. at 453 (emphasis in original).
Even if we were to assume that the Florida Supreme Court misapplied
Strickland’s performance prong in finding no deficiency in counsel’s failure to
uncover the Michael Green sexual abuse, we would still conclude that the Supreme
Court did not err in denying this sexual abuse aspect of Anderson’s ineffective
assistance claim; for as the Supreme Court properly concluded, he failed to satisfy
Strickland’s prejudice prong. Although evidence of sexual abuse may constitute a
mitigating circumstance, “[w]hen a defendant is several decades removed from the
abuse being offered as mitigation evidence its value is minimal.” Callahan, 427
F.3d at 937. Assuming that the evidence of Anderson’s sexual abuse was added to
the mitigating evidence presented to the jury, it was not unreasonable for the
Florida Supreme Court to conclude, after weighing the aggravating and mitigating
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circumstances (including those developed on collateral attack) in the case, that
Anderson failed to demonstrate a substantial probability that the sexual abuse
evidence would have prompted the jury to recommend a sentence of life
imprisonment instead of death. The overwhelming evidence of Anderson’s guilt
further supports our holding. Clisby v. Alabama, 26 F.3d 1054, 1057 (11th Cir.
1994) (“[S]ometimes the best lawyering, not just reasonable lawyering, cannot
convince the sentencer to overlook the facts of a brutal murder––or, even, a less
brutal murder for which there is strong evidence of guilt in fact.”); see also
Crawford v. Head, 311 F.3d 1288, 1321 (11th Cir. 2002) (partially grounding its
finding of no prejudice in the “strength of the evidence both of [the defendant’s]
guilt and of the aggravating circumstances”).
C.
The second aspect of Anderson’s ineffective assistance claim is that his
attorneys should have provided Dr. McMahon with the time and background
information she needed to conduct an adequate mental health evaluation. Had they
done this, Anderson contends, she would have discovered the sort of mitigating
mental health evidence Drs. Villalba and Berland found. In his brief, Anderson
argues that attorneys’ failure to present mitigating evidence like Drs. Villalba and
Berland found fell below prevailing professional norms for two reasons: (1) a
reasonable attorney would have retained Dr. McMahon earlier; and (2) a
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reasonable attorney would have informed Dr. McMahon of Anderson’s history of
sexual abuse, drug use, and head trauma. The District Court concluded that the
Florida Supreme Court properly applied Strickland in rejecting this argument.
Anderson’s first point heavily emphasizes Dr. McClaren’s statement that
that mental health experts typically begin evaluating a capital defendant six months
to a year before trial. Anderson contends that counsel’s failure to conform to this
common practice rendered Dr. McMahon unable to discover evidence of the
Michael Green sexual abuse and of Anderson’s psychological illnesses.
Anderson confuses a typical practice with a constitutional norm. Merely
demonstrating that attorneys typically retain mental health experts six months to a
year before trial does not demonstrate that the practice Dr. McClaren described is
constitutionally required. Rather, Anderson had to show that attorneys typically
retained mental health experts within the six-month to one-year time frame because
a failure to do so would render a thorough and effective evaluation unlikely. He
made no such showing. To the contrary, the record suggests that Anderson’s
attorneys gave Dr. McMahon adequate time to evaluate Anderson. She saw
Anderson on four separate occasions for a total of thirteen hours and conducted a
thorough neuropsychological screening. She also gave him a complete battery of
psychological tests. In short, Dr. McMahon testified that she had adequate time to

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fully evaluate Anderson. The Florida Supreme Court accepted her testimony, and
had a sufficient basis in the record for doing so.
Anderson’s second point is that counsel were constitutionally deficient in
failing to inform Dr. McMahon of his extensive sexual abuse, drug use, and head
injuries caused by car accidents—information Anderson provided Drs. Villalba
and Berland. Assuming that the information was credible, the Florida Supreme
Court’s rejection of the Anderson’s second point was nonetheless reasonable given
Anderson’s explicit denials of sexual abuse, drug use, and head injuries in
answering the Questionnaire. See Stewart, 476 F.3d at 1211 (“The Constitution
imposes no burden on counsel to scour a defendant’s background for potential
[mitigating evidence] given the defendant’s contrary representations . . . .”).
The Supreme Court’s alternative holding—that counsel’s failure to provide
Dr. McMahon with the information Anderson provided Drs. Villalba and Berland
did not render the outcome of the penalty phase constitutionally suspect—was also
reasonable. Nothing in the record suggests that Dr. McMahon would have
conducted a more thorough evaluation had she been given more time. Anderson
does not quarrel with her examination of him or with the tests she chose to
administer. Instead, he argues that if Dr. McMahon had begun evaluating him
sooner “she would have been able to develop a rapport with him that would have
led to the disclosure of the horrific sexual abuse [he] endured as a child.” Pet’r’s
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Br. at 40. This is nothing more than sheer speculation. It falls far short of
establishing a reasonable probability that Dr. McMahon would have uncovered any
additional mitigation evidence, much less “that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104
S. Ct. at 2069.
Dr. McMahon’s testimony makes this clear. At the evidentiary hearing, she
testified that even assuming the credibility of Anderson’s statements to Drs.
Villalba and Berland about childhood sex abuse, head trauma, and severe drug and
alcohol use, her opinion was that he did not have brain damage, borderline
personality disorder, post-traumatic stress disorder, or any other mental health
deficit that would explain his behavior in the bank, especially during the shooting.
See Stewart, 476 F.3d at 1214 (finding no prejudice when the mental health expert
retained by defense for trial and sentencing “testified in the state 3.850 hearing that
information about [the defendant’s] alleged abuse wouldn’t have made any
difference in his final opinion” (internal quotation marks omitted)).
VI.
The District Court did not err in concluding that the Florida Supreme Court
properly applied Strickland v. Washington in denying Anderson’s ineffective
assistance claim. The judgment of the District Court denying Anderson a writ of
habeas corpus is, accordingly,
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AFFIRMED.

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MARTIN, J., concurring in result only:
I agree with the Majority that the District Court is due to be affirmed on its
denial of Mr. Anderson’s claim that his trial counsel was ineffective for failing to
conduct a reasonable mitigation investigation, and present an adequate mitigation
case. I cannot, however, agree with all of the Majority’s reasoning, so I write
separately.
To begin, the Majority is certainly correct that the Florida Supreme Court’s
adjudication of Mr. Anderson’s penalty phase ineffective assistance of counsel
claim is entitled to deference under the Antiterrorism and Effective Death Penalty
Act (AEDPA). See 28 U.S.C. § 2254(d). At the same time, in order to succeed on
a claim of ineffective assistance of counsel, a habeas petitioner must establish both
deficient performance by his counsel, and that he was prejudiced by his counsel’s
deficient performance. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.
2052, 2069 (1984). Because Mr. Anderson did not establish the first required
element, I would make no decision about the second. Specifically, I would affirm
the District Court’s denial of relief based on its finding that counsel was not
deficient in his performance, and express no opinion about whether Mr. Anderson
was prejudiced under the facts of this case. See id. (“[T]here is no reason for a
court deciding an ineffective assistance claim to approach the inquiry in the same

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order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.”).
I do not share the Majority’s confidence that the Florida Supreme Court
reasonably applied the prejudice prong from Strickland within the meaning of 28
U.S.C. § 2254(d)(1). In particular, I have serious concerns about whether the
Florida Supreme Court reweighed the totality of mitigating evidence against all the
aggravating evidence, old and new. See Porter v. McCollum, 558 U.S. 30, 41, 130
S. Ct. 447, 453–54 (2009) (holding, to assess prejudice in a capital sentencing
proceeding, “we 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’” (alteration in original) (quoting
Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct. 1495, 1515 (2000)). A
proper reweighing of the evidence should have included both the positive character
evidence presented at trial, as well as the sexual abuse and mental health evidence
presented during the state postconviction proceedings.
My concerns are heightened here by the fact that the mitigating evidence
that Mr. Anderson’s counsel failed to discover (and present to the jury) includes
evidence that Mr. Anderson was violently sexually abused for several years as a
child. The evidence was also that Mr. Anderson developed post-traumatic stress
disorder and other mental health issues as a result of this abuse. Mr. Anderson’s
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horrific history of child sexual abuse “is the kind of troubled history that the
[Supreme] Court has ‘declared relevant to assessing a defendant’s moral
culpability.’” Johnson v. Sec’y, DOC, 643 F.3d 907, 936 (11th Cir. 2011) (quoting
Wiggins v. Smith, 539 U.S. 510, 535, 123 S. Ct. 2527, 2542 (2003)).
Neither do I agree with the Majority’s categorical assertion that the
remoteness of Mr. Anderson’s sexual abuse diminishes its weight as mitigation.
Mr. Anderson presented evidence in the state court postconviction proceedings that
he developed post-traumatic stress disorder as a result of being the victim of
violent and repeated sexual abuse. Also, this Court has recognized, albeit in a
different context, the grave and enduring harm that sexual abuse of children inflicts
on its victims:
[T]he victim’s fright, the sense of betrayal, and the nature of her
injuries caused more prolonged physical and mental suffering than,
say, a sudden killing by an unseen assassin. The attack was not just on
her but on her childhood. . . . Rape has a permanent psychological,
emotional, and sometimes physical impact on the child. We cannot
dismiss the years of long anguish that must be endured by the victim
of child rape.
United States v. Irey, 612 F.3d 1160, 1207 (11th Cir. 2010) (en banc) (alteration in
original) (quoting Kennedy v. Louisiana, 554 U.S. 407, 435, 128 S. Ct. 2641, 2658
(2008)).
Despite my reservations about the Majority’s conclusion on prejudice, I do
agree with the Majority’s conclusion that the Florida Supreme Court’s finding of
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no deficient performance is entitled to deference. “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s decision.” Harrington v.
Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 786 (2011) (quotation marks omitted).
That said, I am troubled that trial counsel simply left a questionnaire with Mr.
Anderson to fill out on his own, which inquired into sensitive aspects of his
background that might be embarrassing, such as child sexual abuse. Child sex
abuse victims often feel shame as a result of the abuse they suffered, and therefore
may be hesitant to reveal it without a more sensitive inquiry. But while this
method of investigation is not a method that should be encouraged for future cases,
the Majority correctly sets out the ways in which counsel conducted a thorough
background investigation and presented a substantial case for mitigation at Mr.
Anderson’s trial. Thus, the Florida Supreme Court’s adjudication of counsel’s
performance was not objectively unreasonable.

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