Krawczuk v. Secretary, Department of Corrections et al

Filing 31

OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying each claim in 1 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 8/5/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTON J. KRAWCZUK,
Petitioner,
v.

Case No: 2:13-cv-559-FtM-29CM

SECRETARY,
FLORIDA
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE
OF FLORIDA,
Respondents. 1
OPINION AND ORDER
This case is before the Court on a petition for habeas corpus
relief filed by death row inmate Anton Krawczuk (“Petitioner” or
“Defendant”) (Doc. 1, filed July 18, 2013).

Upon consideration

of the petition, the Court ordered Respondent to show cause why
the relief sought should not be granted (Doc. 13).
Respondent

filed

a

response

in

compliance

with

Thereafter,
this

Court’s

instructions and with the Rules Governing Section 2254 Cases in
the United States District Courts (Doc. 25).

Petitioner filed a

reply (Doc. 30).

1

When the petitioner is incarcerated and challenges his
present physical confinement “the proper respondent is the warden
of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004)(citations omitted). In Florida,
the proper respondent in this action is the Secretary of the
Florida Department of Corrections.
Therefore, the Florida
Attorney General will be dismissed from this action.

Petitioner raises four claims for relief in his petition.
Upon due consideration of the pleadings and the state court record,
each claim must be denied.

Because the Court may resolve the

Petition on the basis of the record, an evidentiary hearing is not
warranted.

See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if

the record refutes the factual allegations in the petition or
otherwise precludes habeas relief, a district court is not required
to hold an evidentiary hearing).
I.

Statement of the Facts
The facts, as set forth by the Florida Supreme Court, are as

follows:
On September 13, 1990, a decomposing body was
found in a rural wooded area of Charlotte
County. Earlier, David Staker's employer
notified Lee County authorities that he had
missed several days of work and had not picked
up his paycheck. When she went to his home,
she found the door open, and it appeared that
the house had been robbed. Near the end of
September, the Charlotte County body was
identified as Staker, and Gary Sigelmier
called the Charlotte County Sheriff's office
to report that he may have bought the property
stolen
from
Staker's
home.
Sigelmier
identified Krawczuk and Billy Poirier as the
men who sold him the stolen goods, and Lee and
Charlotte deputies went to the home Krawczuk
and Poirier shared in Lee County. They found
both men at home and took them to the Lee
County Sheriff's office where, after waiving
his Miranda rights, Krawczuk confessed to
killing Staker.
According to his confession, Krawczuk had
known Staker for about six months and had a
casual homosexual relationship with him, as

- 2 -

did Poirier. The week before the murder, the
pair decided to rob and kill Staker. Krawczuk
called and arranged for him and Poirier to
visit Staker. Krawczuk picked Poirier up at
work and drove him home to change clothes. He
parked in a shopping area, and the pair walked
to Staker's house. Once there, they watched
television for twenty to thirty minutes, and
Krawczuk then suggested that they go to the
bedroom. With the undressed trio on the bed,
Krawczuk started roughing up Staker and
eventually began choking him. Poirier assisted
by holding Staker's mouth shut and pinching
his nose closed. Staker resisted and tried to
hit Krawczuk with a lamp, but Poirier took it
away from him. The choking continued for
almost ten minutes, after which Krawczuk twice
poured drain cleaner and water into Staker's
mouth. When fluid began coming from Staker's
mouth, Poirier put a wash cloth in it and tape
over Staker's mouth. Krawczuk tied Staker's
ankles together, and the pair put him in the
bathtub. They then stole two television sets,
stereo equipment, a video recorder, five
rifles, and a pistol, among other things, from
the house and put them in Staker's pickup
truck. After putting the body in the truck as
well, they drove to Sigelmier's. Sigelmier
bought some of the stolen items and agreed to
store the others. Krawczuk and Poirier
returned to their car, transferred Staker's
body to it, and abandoned Staker's truck.
Krawczuk had scouted a rural location earlier,
and they dumped Staker's body there.
When the deputies went to Krawczuk's home,
they had neither a search warrant nor an
arrest warrant. Krawczuk moved to suppress his
confession as the product of an illegal
arrest. In denying that motion the court held
that the deputies had probable cause to arrest
Krawczuk when they went to his house but that
Poirier's mere submission to authority did not
provide legal consent to enter the house.
Although the judge found that Payton v. New
York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed.2d
639 (1980), had been violated, he also found

- 3 -

Krawczuk's confession, made after Miranda
rights were given and waived, admissible under
New York v. Harris, 495 U.S. 14, 110 S.Ct.
1640, 109 L.Ed.2d 13 (1990). After losing the
motion to suppress, Krawczuk sought to change
his plea to guilty. The court held an
extensive plea colloquy, during which Krawczuk
was reminded that pleading guilty cut off the
right to appeal all prior rulings. Krawczuk
and his counsel also informed the court that
Krawczuk
wished
to
waive
the
penalty
proceeding. Neither the state nor the court
agreed to this, and the penalty phase took
place in early February 1992.
Krawczuk refused to allow his counsel to
participate in selecting the penalty phase
jury and forbade her from presenting evidence
on
his
behalf.
The
jury
unanimously
recommended that he be sentenced to death.
Afterwards, the court set a date for hearing
the parties and a later date for imposition of
sentence. At the next hearing the judge, over
Krawczuk's personal objection, stated that he
would look at the presentence investigation
report
and
the
confidential
defense
psychiatrist's report for possible mitigating
evidence. At the final hearing the court
sentenced Krawczuk to death, finding three
aggravators and one statutory mitigator.
Krawczuk v. State, 634 So. 2d 1070, 1071-72 (Fla. 1994) (footnotes
omitted).
II.

Procedural History
On or about October 3, 1990, Petitioner and co-defendant

William

Poirier

(“Poirier”)

were

indicted

for

first

degree

premeditated murder (count one), first degree felony murder (count

- 4 -

two), and robbery (count three) (Ex. A3 at 446). 2

Petitioner filed

a motion to suppress his confession (Ex. A4 at 525), and after a
hearing on the motion, it was denied (Ex. A2 at 274-354; Ex. A5 at
544).
Thereafter,

on

September

27,

1991,

Petitioner

entered

a

guilty plea to the charges, and asked that the court impose the
death penalty (Ex. A3 at 386-424).

The trial court advised

Petitioner that he could not waive a penalty hearing and that a
defendant’s request for the death penalty “[i]n all probability it
would not enter into the decision as to whether to impose it or
not.” Id. at 390.

The state refused to waive a jury at the penalty

phase, and the trial court agreed (Ex. A7 at 654-55).
Prior to jury selection for the penalty phase, Petitioner
reiterated his desire that counsel not participate in the penalty
phase or offer any mitigation evidence (Ex. A8 at 695).

The trial

court explained that Petitioner had the right to present mitigation
evidence, but Petitioner insisted that he did not wish to do so
and that he had instructed his attorney to offer no mitigation
(Ex. A8 at 9-10, 11-12, and 13).

Petitioner also told the trial

court that he did not wish for counsel to participate in jury
selection, call witnesses, or make a closing argument. Id. at 1516. Counsel Barbara LeGrande (“LeGrande”) told the court that she

2

References to exhibits are to those filed by Respondent on
March 21, 2014 (Doc. 27).

- 5 -

strongly advised Petitioner against waiving his right to present
mitigation evidence. Id. at 16-18.
A penalty phase commenced on February 4. 1992 (Ex. A1; Ex.
A2).

Legrande told the trial court that Petitioner did not want

to offer mitigation evidence.

Petitioner was questioned several

times by the court, but he insisted that no mitigation evidence be
offered (Ex. A2 at 190-231).

The jury unanimously recommended

death (Ex. A2 at 268; Ex. A5 at 584).

After a Spencer 3 hearing,

the trial court sentenced Petitioner to death (Ex. A5 at 590).

He

was also sentenced to fifteen years in prison for the robbery
conviction (Ex. A5 at 593). 4

The Florida Supreme Court affirmed

3

Spencer v. State, 615 So. 2d 688 (Fla. 1993) (a trial judge
may not formulate his or her sentencing decision prior to giving
he defendant an opportunity to be heard).
4

The trial court found three aggravating factors: (1) the murder
was committed in the course of a robbery and was committed for
pecuniary gain; (2) the murder was especially heinous, atrocious,
or cruel (HAC); and (3) the murder was committed in a cold,
calculated, and premeditated manner without any pretense of legal
or moral justification (CCP) (Ex. A5 at 587-90). The trial court
also found that one statutory mitigator (Petitioner had no
significant history of criminal activity) was established. Id. at
590. The court found no non-statutory mitigators. Id. The court
gave great weight to the second and third aggravating circumstances
and “significantly less weight” to the first aggravating
circumstance and the mitigating circumstance. Id. at 592.
The
court made a specific finding that it had “received the benefit of
all
possible
material
mitigating
circumstances
from
the
psychiatrist report and from the presentence investigation[.]” Id.
at 591. The court also dismissed the psychiatrist’s conclusion
that Petitioner was the more passive of the two defendants. Id. at
592. The court followed the jury's recommendation and imposed the
death penalty for the first-degree murder conviction. Id. at 593.

- 6 -

Petitioner's convictions and sentences. Krawczuk v. State, 634 So.
2d 1070 (Fla. 1994) (hereinafter, “Krawczuk I”).
On October 3, 1995, Petitioner filed a motion for postconviction relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (“Rule 3.850 motion”). 5

He filed an amended

motion on March 15, 2002, raising twenty-four separate claims (Ex.
D24). An evidentiary hearing was held on each of Petitioner's
claims alleging ineffective assistance of counsel or requiring
factual development (Ex. D17; Ex. D18; Ex. D20).
At the evidentiary hearing, Petitioner introduced testimony
about

his

troubled

Petitioner's

background.

brother,

Testimony

Christopher

Krawczuk

was

heard

from

(“Christopher”).

Christopher testified that their mother was both verbally and
physically abusive and that, although there were several boys in
the family, Petitioner received the brunt of their mother’s anger.
In addition, when Petitioner eventually left home to live with a
friend, his mother did not check on him or offer any assistance
(Ex.

D17

at

1514-43).

Santo

Calabro,

Petitioner's

former

stepfather, also testified that Petitioner's mother was violent
towards

all

of

her

children,

but

5

focused

her

violence

on

Petitioner filed his motion before the Florida Supreme Court
created Rule 3.851 of the Florida Rules of Criminal Procedure, the
post-conviction rule currently applicable to death-sentenced
petitioners.

- 7 -

Petitioner. Petitioner would seek negative attention from his
mother

because

she

showed

him

no

love.

Id.

at

1555-93.

Petitioner's friend Todd Kaase (“Kaase”) testified that he had
witnessed

Petitioner's

mother

hit

her

sons

and

that

after

Petitioner came to live with Kaase’s family, Petitioner's mother
never

checked

on

him.

Id.

at

1575-87.

Petitioner's

mother

testified that she would often get angry with her children and
“smack” them around. Petitioner received the brunt of her anger
because he was not a loving child and because he was “aggravating
and incorrigible.”

She did not believe that her abuse caused

Petitioner to murder Staker. Id. at 1589-1602.

Petitioner's

former co-worker, Paul Wise, testified that Petitioner had lived
with him for eight or nine months and that he was a dependable
worker,

although

he

was

moody

at

times.

Id.

at

1606-15.

Petitioner's ex-wife, Judy Nelson, testified that Petitioner had
told her about his abusive mother and that Petitioner's mother had
been verbally abusive towards her as well.

She also testified

that Petitioner used marijuana numerous times per day. She did not
like Poirier, and referred to him as Petitioner's “protégé.” She
testified that Petitioner and Poirier frequently robbed together
and that Poirier usually came up with the ideas (Ex. D20 at 237581).
In addition to background witnesses, Petitioner introduced
the testimony of two mental health experts.

- 8 -

Dr. Barry Crown

testified that he had conducted a brief interview with Petitioner
and

administered

a

battery

of

neuropsychological

tests

to

determine the relationship between Petitioner's brain function and
his behavior (Ex. D17 at 1633-37).
exhibited

no

evidence

of

Dr. Crown found Petitioner

malingering,

normal

functioning, and poor intellectual efficiency.

intellectual

He believed that

Petitioner had the critical thinking skills of a ten year old, the
mental processing of a thirteen year old, and organic brain damage
to the anterior of the brain. Id. at 1638.

Dr. Crown believed

that Petitioner was under the influence of extreme mental or
emotional disturbance when he murdered David Staker. Id. at 1648.
He also believed that Petitioner had no capacity to conform his
conduct to the requirements of the law. Id. at 1648-49.

Dr. Crown

did not review other psychiatric reports prior to his examination
of Petitioner and did not know that Dr. Keown had concluded that
Petitioner showed no signs of organic brain damage. Id. at 1650,
1653. 6

Dr.

Crown

was

unaware

that

Petitioner

had

discussed

murdering his victim for a week prior to the crime; was unaware
that David Staker was Petitioner's sexual partner; and was unaware
that Petitioner refused to testify against co-defendant Poirier.
Id. at 1658-61.

6

Dr. Keown was the psychiatrist appointed by the trial court
prior to trial to perform a psychiatric evaluation and to provide
assistance to the defense in the presentation of their case (Ex.
D19B at 2198).

- 9 -

Psychologist Faye Sultan testified that she had interviewed
Petitioner at length and also interviewed his family (Ex. D17 at
1699).

She detailed the abuse Petitioner had suffered at the

hands of his mother and stated that Petitioner told her that he
had been sexually molested when he was eight or ten years old. Id.
at 1711.

She diagnosed Petitioner with cognitive dysfunction and

impulse control. Id. at 1765.

She concluded that Petitioner had

been under extreme mental or emotional disturbance when he killed
David Staker. Id. at 1724.

She also concluded that Petitioner was

unable to conform his conduct to the requirements of the law. Id.
She admitted that there had been a great deal of planning involved
in Staker’s murder, but concluded that brain damage does not
necessarily stop a person from being able to plan. Id. at 173544.

As

far

as

Petitioner's

waiver

of

presenting

mitigation

evidence, she believed that Petitioner would have found mitigation
“messy” and “if he made the decision to die, [he] didn’t have to
consider it.” Id. at 1730.
The post-conviction court did not find Dr. Crown’s testimony
credible, noting:
Dr. Crown expressed the opinions that Mr.
Krawczuk was under the influence of extreme
mental or emotional disturbance at the time of
the crime and his ability to appreciate the
criminality of his or her conduct or to
conform his or her conduct to the requirements
of law was substantially impaired. The court
holds so strongly to the view that the other
evidence
including,
particularly,
Mr.

- 10 -

Krawczuk’s confession but also including Mr.
Krawczuk’s
letters,
the
statement
and
deposition of Gary Sigelmier, the statement of
Mr. Poirier, the testimony of the family
members and friends, the other mental health
professionals, reports and deposition, and
other credible evidence in this case so
resoundingly refute this opinion as to
discredit as well the related opinion that Mr.
Krawczuk suffers from organic brain damage.
(Ex. D21 at 2455).

The court also concluded that Dr. Sultan was

not a credible witness, specifically noting that she “testified
extensively about Dr. Crown’s contributions to her understanding,”
even though Dr. Crown examined Petitioner almost two months after
Dr. Sultan’s last interview with Petitioner. Id. at 2457.

The

court also listed several instances that Dr. Sultan’s testimony
was not supported by other evidence. Id. at 2458-59.

As with Dr.

Crown, the court noted that the evidence “so resoundingly refutes”
Dr. Sultan’s opinion that the statutory mental health mitigating
factors applied, that her other opinions were discredited as well.
Id. at 2460.
After the hearing, the trial court denied all of the claims
in a detailed order (D21 at 2434-2558).
specifically
mitigating
aggravating

found

factors

that,
presented

circumstances

even
at

The post-conviction court

considering
the

far

- 11 -

the

evidentiary

outweighed

the

additional

hearing,

the

mitigating

circumstances (Ex. D21 at 2440). 7

The court stated that “it was

satisfied beyond a reasonable doubt that a sentence of death would
have been the result regardless.” Id.

Further, in addressing

Petitioner’s ineffective assistance claims, the post-conviction
court concluded that Petitioner could not demonstrate prejudice:
Further, if the alleged errors are based
solely on claims of ineffective assistance of
counsel, Mr. Krawczuk has not shown and cannot
show (his burden) “prejudice” – that there is
a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different. A
reasonable
probability
is
a
probability
sufficient to undermine confidence in the
outcome, see Strickland v. Washington, 466
U.S. 668, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674
(1984). Again, the court is satisfied beyond

7

After listening to the testimony presented at the
evidentiary hearing, the court concluded that the state had proven
that the murder of David Staker was committed during a robbery and
for pecuniary gain (significant weight); the murder was especially
heinous, atrocious and cruel (great weight); and the murder was
cold, calculating, and premeditated without any pretense of legal
or moral justification (great weight). The court found that no
statutory mitigating circumstances had been established.
The
court found six non-statutory mitigating circumstances: Petitioner
suffered an abusive and emotionally deprived childhood (slight
weight); Poirier pleaded to a lesser charge and received a prison
sentence (slight weight); there was some evidence of substance
abuse/chronic marijuana use (very slight weight); Petitioner was
a good worker, hard worker at his maintenance job at McDonalds
(slight weight); he had a mental or emotional disturbance less
than extreme (moderate weight); and Petitioner cooperated (slight
weight). The court also concluded that even if Petitioner “has
organic brain damage that damage as diagnosed, [it] is in the
category of a ‘mild cognitive disorder’ and would not add
sufficient weight to the consideration given for Mr. Krawczuk’s
mental condition to affect the final result of the court’s overall
weighting of the aggravators and mitigators.” (Ex. D21 at 2439).

- 12 -

a reasonable doubt that a sentence of death
would have been the result regardless.
Id. at 2440.
Petitioner appealed five issues to the Florida Supreme Court
(Ex. D26).

Petitioner simultaneously filed a state petition for

writ of habeas corpus with the Florida Supreme Court in which he
alleged ineffective assistance of appellate counsel (Ex. D29).

In

a consolidated opinion, the Florida Supreme Court denied all
relief. Krawczuk v. State, 92 So. 3d 195 (Fla. 2012) (hereinafter
“Krawczuk II”).
III.
A.

Governing Legal Principles
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)

Pursuant to the AEDPA, federal habeas relief may not be
granted with respect to a claim adjudicated on the merits in state
court unless the adjudication of the claim:
(1)

resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).
to meet.

This standard is both mandatory and difficult

White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

A state

court’s summary rejection of a claim, even without explanation,
qualifies

as

an

adjudication

on

- 13 -

the

merits

which

warrants

deference.
2008).

Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

Notably, a state court’s violation of state law is not

sufficient to show that a petitioner is in custody in violation of
the “Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues its decision.

White, 134 S. Ct. at 1702; Carey v. Musladin,

549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362,
412 (2000)).

That said, the Supreme Court has also explained that

“the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard’ from [the Supreme Court’s]
cases can supply such law.” Marshall v. Rodgers, 133 S. Ct. 1446,
1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).

State courts “must reasonably apply the rules ‘squarely

established’ by [the Supreme] Court’s holdings to the facts of
each

case.

White,

134

S.

Ct.

at

1706

(quoting

Knowles

v.

Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point,
habeas relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1).

A decision is “contrary to” clearly

- 14 -

established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540
U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent

to

a

new

context

where

it

should

not

apply

or

unreasonably refuses to extend that principle to a new context
where it should apply.”
Williams, 529 U.S. at 406).

Bottoson, 234 F.3d at 531 (quoting
The unreasonable application inquiry

“requires the state court decision to be more than incorrect or
erroneous,” rather, it must be “objectively unreasonable.” Lockyer
v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell,
540 U.S. at 17-18; Ward, 592 F.3d at 1155.

The petitioner must

show that the state court's ruling was “so lacking in justification
that

there

was

an

error

well

understood

and

comprehended

in

existing law beyond any possibility for fairminded disagreement.”

- 15 -

White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S.
86 (2011)). Moreover, “it is not an unreasonable application of
clearly established Federal law for a state court to decline to
apply a specific legal rule that has not been squarely established
by [the Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal
court must bear in mind that any “determination of a factual issue
made by a State court shall be presumed to be correct[,]” and the
petitioner bears “the burden of rebutting the presumption of
correctness

by

clear

and

convincing

evidence.”

28

U.S.C.

§

2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] statecourt factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in
the first instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293
(2010)).
B.

Standard for Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a
two-part

test

entitled

to

for

relief

determining
on

the

whether

ground

that

a

convicted
his

person

counsel

is

rendered

ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner
must establish that counsel’s performance was deficient and fell
below

an

objective

standard

of

reasonableness

deficient performance prejudiced the defense. Id.

and

that

the

This is a

“doubly deferential” standard of review that gives both the state

- 16 -

court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13, (citing Cullen v. Pinholster, 131 S. Ct.
1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.

In reviewing counsel's performance, a court

must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.”
at 689.

Id.

Indeed, the petitioner bears the heavy burden to “prove,

by a preponderance of the evidence, that counsel’s performance was
unreasonable[.]” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.
2006).

A

court

must

“judge

the

reasonableness

of

counsel’s

conduct on the facts of the particular case, viewed as of the time
of counsel’s conduct,” applying a “highly deferential” level of
judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690).
As

to

the

prejudice

prong

of

the

Strickland

standard,

Petitioner’s burden to demonstrate prejudice is high. Wellington
v.

Moore,

314

F.3d

1256,

1260

(11th

Cir.

2002).

Prejudice

“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.

That is, “[t]he defendant

must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding

- 17 -

would have been different.” Id. At 694.
is

“a

probability

sufficient

to

A reasonable probability

undermine

confidence

in

the

outcome.” Strickland, 466 U.S. at 694.
IV.

Analysis
A.

Claim One

Petitioner asserts that he was denied effective assistance of
counsel

at

the

Specifically,

he

penalty
claims

phase
that

of

his

LeGrande

trial

(Doc.

conducted

1

a

at

20).

less

than

complete investigation into available mitigation evidence.

He

argues:
Trial counsel’s omissions were not the result
of any reasonable strategic decision, but
instead were based on a wholly inadequate (and
indeed non-existent) investigation.
This
failure rendered Mr. Krawczuk’s putative
waiver
of
mitigation
unknowing
and
involuntary. The result is that significant
mitigation
evidence
never
reached
Mr.
Krawczuk’s sentencing jury.
In fact, the
state circuit court determined that Mr.
Krawczuk’s
counsel
rendered
deficient
performance.
(Doc. 1 at 54).
Petitioner raised this issue as claim three of his Rule 3.850
motion, and an evidentiary hearing was held.
court

concluded

failing

to

that

counsel’s

investigate

performance

Petitioner's

family

The post-conviction
was

deficient

history

to

for

reveal

instances of abuse or to “obtain clear direction from Mr. Krawczuk
that she was not to do so.” (Ex. D21 at 2468).

- 18 -

The post-conviction

court also concluded that counsel’s performance was not deficient
for

failing

to

investigate

the

plea

agreement

reached

by

Petitioner's codefendant; Petitioner's alleged substance abuse;
Petitioner's

work

ethic;

Petitioner's

mental

or

emotional

disturbance; or Petitioner's cooperation. Id. at 2469-70.
The post-conviction court further concluded that Petitioner
could not demonstrate prejudice from any of counsel’s alleged
failures (Ex. D21 at 2471).

The court noted that Petitioner “has

not shown a reasonable probability that if he had been more fully
advised about the potential mitigation evidence he would have
authorized trial counsel to present such evidence at either the
penalty phase trial or at the Spencer hearing. Id. at 2471.
court reiterated:
[G]ven the strength and weight of these
aggravating circumstances, as described by Mr.
Krawczuk himself, and supported by other
evidence, and the relative weakness of the
mitigating circumstances and the evidence Mr.
Krawczuk presented in the original and postconviction proceedings, the court finds there
is no reasonable probability that, absent any
alleged error or any alleged deficient
performance of counsel, whether considered
individually or all considered cumulatively,
the outcome of the post plea proceedings would
have been different (State’s burden).
The
court is satisfied beyond a reasonable doubt
that a sentence of death would have been the
result regardless.
Id. at 2472; see also discussion supra Part I.

- 19 -

The

On appeal, the Florida Supreme Court also found no merit in
this claim.

The Florida Supreme Court recognized that the post-

conviction court found LeGrande deficient for failing to discover
mitigation related to Petitioner's background, but had determined
that Petitioner did not suffer resulting prejudice “because he was
emphatic that counsel not contact his family and probably would
not have permitted counsel to present the information during the
penalty phase.” Krawczuk II, 92 So. 3d at 203.

Citing extensively

from Grim v. State, 971 So. 2d 85 (Fla. 2007) and Waterhouse v.
State, 792 So. 2d 1176, 1184 (Fla. 2001), the Florida Supreme court
side-stepped

the

issue

of

whether

LeGrande’s

performance

was

deficient in any respect, concluding instead that Petitioner could
not establish Strickland prejudice:
In each of these cases, we concluded that
trial counsel could not be deemed ineffective
for following their client's wishes not to
present mitigation. “An attorney will not be
deemed ineffective for honoring his client's
wishes.” Brown v. State, 894 So.2d 137, 146
(Fla. 2004) (citing Waterhouse, 792 So.2d at
1183); Sims v. State, 602 So.2d 1253, 1257–58
(Fla. 1992)); see also Sims v. State, 602
So.2d 1253, 1257–58 (Fla. 1992) (“[W]e do not
believe counsel can be considered ineffective
for honoring the client's wishes”). The record
demonstrates that Krawczuk would not permit
his
attorney
to
involve
his
family.
Accordingly, counsel's ability was limited by
the defendant's desire not to include his
family.
See
Brown,
894
So.2d
at
146.
Therefore, we agree that counsel's actions
could not be deemed ineffective. Id.

- 20 -

It is clear that there was significant
mitigation available that was not uncovered by
counsel. However, it is equally clear that
Krawczuk repeatedly insisted that counsel not
pursue mitigation and not involve his family.
Further, the postconviction court found that
the information that would have been presented
by the family was available through Dr.
Keown's report, which Krawczuk also refused to
allow
counsel
to
present.
Because
of
Krawczuk's instructions to counsel not to
involve his family, we find that Krawczuk
cannot establish prejudice.
Krawczuk II, 92 So. 3d at 205.

Petitioner argues that the Florida

Supreme

contrary

Court’s

application

of,

decision

is

Strickland

and

that

to,
its

or

an

unreasonable

determination

that

Petitioner instructed counsel to not pursue mitigation is an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding (Doc. 1 at 53) (citing 28
U.S.C. § 2254(d)(2)).
This

Court

need

not

address

whether

counsel

performed

deficiently because the Florida Supreme Court had a reasonable
basis

for

concluding

that

Petitioner

had

not

established

Strickland prejudice. See Strickland, 466 U.S. at 697 (“[A] court
need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies . . . [i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course
should be followed.”).

- 21 -

The United States Supreme Court has specifically addressed
the situation in which a habeas petitioner alleges that counsel
was ineffective for failing to investigate potential mitigation
evidence when the petitioner asserted at the state level that he
did not want to present a mitigation defense.

In Schriro v.

Landrigan, 550 U.S. 465 (2007), Landrigan argued that his counsel
was ineffective for failing to interview his biological father and
other relatives to confirm that his biological mother had used
drugs and alcohol while pregnant. Id. at 471.

The state contended

that

not

Landrigan

had

instructed

his

mitigation evidence. Id. at 479.
Landrigan

issued

investigate
Strickland.”

such

further
Id.

an

could

counsel

Therefore,

offer

any

The Court determined that “[i]f

instruction,
not

to

have

counsel’s

been

Landrigan

failure

prejudicial

could

not

to

under

demonstrate

prejudice because the post-conviction court “reasonably determined
that Landrigan instructed his attorney not to bring any mitigation
to the attention of the [sentencing] court” and the district court
“was entitled to conclude that regardless of what information
counsel might have uncovered in his investigation, Landrigan would
have interrupted and refused to allow his counsel to present any
such evidence.” Id. at 477.
The Eleventh Circuit’s earlier decision in Gilreath v. Head,
234 F.3d 547 (11th Cir. 2000) is consistent with Landrigan.
Gilreath,

the

court

determined

that

- 22 -

a

habeas

petitioner

In
who

instructed his counsel to present no mitigation evidence during
his penalty phase would need to show two things to demonstrate
Strickland prejudice:
First, Petitioner must show a reasonable
probability that - if Petitioner had been
advised more fully about character evidence or
if trial counsel had requested a continuancePetitioner would have authorized trial counsel
to permit such evidence at sentencing.
Second, Petitioner must establish that, if
such
evidence
had
been
presented
at
sentencing, a reasonable probability exists
that the jury “would have concluded that the
balance
of
aggravating
and
mitigating
circumstances
did
not
warrant
death.”
Strickland, 104 S. Ct. at 2069[.]
Id. at 551-52 (citing Mills v. Singletary, 63 F.3d 999, 1026 (11th
Cir. 1995); Bolender v. Singletary, 16 F.3d 1547, 1560-61 (11th
Cir. 1994); Bush v. Singletary, 988 F.2d 1082, 1090 (11th Cir.
1993))(footnote omitted).

The Gilreath court further explained

that to show prejudice, “Petitioner must show that — but for his
counsel’s

supposedly

unreasonable

conduct

—

helpful

evidence actually would have been heard by the jury.

character

If Petitioner

would have precluded its admission in any event, Petitioner was
not prejudiced by anything that trial counsel did.” Id. at 551 n.
12; see also Cummings v. Sec’y for the Dep’t of Corr., 588 F.3d
1331,

1360

(11th

Cir.

2009)(“[T]here

cannot

be

a

reasonable

probability of a different result if the defendant would have
refused to permit the introduction of mitigation evidence in any
event.”)(citing Strickland, 466 U.S. at 694); Pope v. Sec’y for

- 23 -

the Dep’t of Corr., 752 F.3d 1254, 1266 (11th Cir. 2014)(“To
establish Strickland prejudice, then, a petitioner who has told
trial counsel not to present mitigation evidence must show a
reasonable probability that, if he had been more fully advised
about the mitigating evidence and its significance, he would have
permitted trial counsel to present the evidence at sentencing.”)
(citing Gilreath, 234 F.3d at 551).
The state record is clear that Petitioner was aware of the
necessity of presenting mitigation evidence at trial.

On March

8, 1991, LeGrande wrote a detailed letter to Petitioner in which
she explained the likely aggravating circumstances the state would
seek to prove and the statutory mitigating circumstances which
must be considered (Ex. D19C at 2316-17).

Specifically, LeGrande

stated, “As to mitigation, we can try to use #1, 2, 5, 6, & 8. 8

8

The statutory mitigating factors, as defined by Florida
Statute § 921.141(6) are as follows:
(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

- 24 -

Numbers 2, 5, 6, and 8 will depend upon your testimony at trial
and the findings of Dr. Keown.” Id. at 2317.

Counsel explained:

Because of the pre-planning of this murder and
the pouring of Draino down the victim’s
throat, and the hiding of the body will
probably cause a jury in Fort Myers to come
back with a recommendation of death.
Judge
Thompson has never sentenced anyone to death
at this time, but that does not mean he will
not do so.
Id. at 2317.
The record is also clear that Petitioner instructed LeGrande
not to present any mitigating evidence to the jury. At his plea
colloquy, Petitioner expressed a desire to receive a death sentence
(Ex. A3 at 390). The trial court advised Petitioner that he could

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.

Fla. Stat. § 921.141(6) (a)-(h) (1989).

- 25 -

not waive a penalty hearing and that the court was obligated to
weigh aggravating and mitigating factors prior to making a final
decision. Id. at 390. The court noted that a defendant’s request
for the death penalty “[i]n all probability it would not enter
into the decision as to whether to impose it or not.” Id. at 390.
LeGrande informed the court that she had advised Petitioner
against entering a guilty plea (Ex. A3 at 405).

She said that she

and Petitioner had talked about his decision to plead guilty and
that he had given the decision “considerable consideration.” Id.
at 415.

LeGrande told the court that she had arranged for

mitigation witnesses, but that Petitioner instructed her not to
call them. Id.

LeGrande explained: “I have told [Petitioner] that

I believe it’s in his best interest to call these individuals.
has commanded me not to call the individuals.” Id.
expressed

concern

about

Petitioner's

desire

not

He

The court
to

present

mitigation evidence, but LeGrande noted that the law provided that
a defendant has the right not to call mitigation witnesses. Id. at
405, 407.

When asked why he had chosen such action, Petitioner

stated that “I just feel it’s – I shouldn’t be allowed to live for
what I did.” Id. at 409.
After his plea was accepted, Petitioner sent a letter to
LeGrande in which he reiterated his desire to receive the death
penalty:

- 26 -

Do you think my sentencing date of October
29th will remain as such, or will there be a
chance for a further delay?
Please keep me
updated on it, so I will be prepared on that
date.
As for my sentencing hearing, do you
feel I can achieve my goal of receiving the
death sentence?
From the sounds of it, Mr.
Bower is very much for it as well, isn’t he?
By my pleading guilty to the charges, doesn’t
that increase the aggravating circumstances
against me, and basically ensure my death
penalty?
After all, I am assisting the
prosecution in their proving of my total
guilt, aren’t I?
. . .
As far as I’m concerned, you have proven to be
a shining example for a lawyer, and I have
nothing but praise for you and your work. You
have examined each and every aspect, as I have
requested. In fact, I feel that you have done
far more than was actually required.
If I
have put you in a bind by pleading guilty, it
wasn’t my intention. Thank you for remaining
as my counsel, through this most critical of
all phases.
(Ex. D19C at 2296-97).
A penalty phase commenced on February 4. 1992 (Ex. A1; Ex.
A2).

During the penalty phase, the trial court asked Petitioner

whether he still wished that no mitigation evidence be offered
(Ex. A1 at 190).

Petitioner indicated that he did not want to

offer anything in mitigation. Id. at 191. After the close of the
state’s case, the trial court again asked whether Petitioner had
any desire to present a case in mitigation (Ex. A2 at 218).
LeGrande told the court:
Mr. Krawczuk has advised me, he would have no
objection to my making a closing argument for

- 27 -

the purpose of preventing a reversal on the
fact that no mitigating circumstances was
introduced.
However, I advised him in order to argue,
again, it would be necessary for him to take
the stand to present the mitigating evidence.
I can only argue evidence that which has been
presented from the witness box. He declines
to take the witness stand, and I find little
in the State’s evidence that I would be able
to argue for mitigation.
. . .
Other than the fact, he has pled, which is not
a mitigating circumstance.
He has then
instructed me, it’s not necessary.
He was
concerned about reversal if nothing was
introduced, and he doesn’t want to introduce
any.
Id. at 218-19.

The court pondered whether “it would probably

still be possible to make some kind of argument based on – I don’t
know if you wish to do so – or wish to think about that or what.”
Id. at 219. Counsel replied:
I don’t think [Krawczuk] wants to present
mitigating circumstances.
From what I
understand from him, he only just wants to
make sure that everything is appropriate for
the appellate process, so there wouldn’t be a
reversal.
(219). The court questioned Petitioner.
COURT:

What is your position as far as
having your attorney present
any mitigating evidence?

PETITIONER:

I am willing to let her do it,
but I am not willing to get on
the stand myself, because I am
just opposed to that idea.
But I don’t know.

- 28 -

COURT:

Have you discussed any other
mitigating evidence that might
be presented that you could –
I don’t know if at this point
you
could
introduce
the
psychiatric
report
for
whatever
benefit
that
may
have?

LEGRANDE:

I am willing to do that, but I
don’t know if the State would.

PETITIONER:

Not the whole thing, but part
of it would be good.

COURT:

You can talk it over with your
lawyer. It would probably be
all or nothing at best. I am
not
sure
how
the
State’s
position might be or how I
might rule on that.

(Ex. A2 at 220). The state objected to the introduction of any
portion of Dr. Keown’s psychiatric report because it would be
unable to call rebuttal witnesses. Id. at 222-23.

The State

queried whether Petitioner “really wanted anything offered on his
behalf or is he not going to want anything admitted on his behalf?”
Id. at 224. LeGrande stated:
Mr. Krawczuk has just indicated to me that his
desire to have this admitted has nothing to do
with attempting to sway the jury on mitigating
circumstances.
He is not looking for
mitigation. It’s still his desire to have the
death penalty imposed. He is just attempting
to prevent tying my hands to the point of
presenting his case that the Appellate Court
would overturn a death penalty.
Id. at 224-25.

The court agreed to admit Dr. Keown’s psychiatric

report. Id. at 229.

The state told the court that “if [the mental

- 29 -

health report is] going to be admitted, I am going to refer to
certain items in there verbally.” Id. at 229.

Petitioner then

told counsel that he did not want the psychiatric report admitted:
LEGRANDE:

Mr. Krawczuck indicates
does not want it admitted.

COURT:

All right, is that your final
word
on
the
matter,
Mr.
Krawczuk?

PETITIONER:

Yes, it is.

COURT:

Okay.
Now
it’s
my
understanding, at this point
at least, that you do not want
to
present
any
mitigating
evidence, and that you do not
want, yourself, to testify as
to
additional
mitigating
evidence; is that correct?

PETITIONER:

Yes, it is.

COURT:

And we have been all through
this thing, and I think you
have
a
pretty
good
understanding of the trial
process, but you understand
the consequences of that you
may well expose yourself to the
death penalty or at least a
recommendation by this jury
that you get a death penalty.

PETITIONER:

Yes, sir.

COURT:

What about final argument,
will there be non or –

LEGRANDE:

There
won’t
be
any
argument, Your Honor.

COURT:

All right, are you going to
tell the jury that in some

- 30 -

he

final

fashion,
have
about that?

you

thought

LEGRANDE:

I think I am just going to
waive final argument and I am
advising the Court that is what
my client is wanting me to do.

COURT:

Is that correct?

PETITIONER:

That is correct.

COURT:

Are
you
directing
your
attorney to take no further
action on your behalf as far as
final argument or presentation
of any further evidence?

PETITIONER:

After
discussion,
about all I can do.

LEGRANDE:

For
the
purposes
he
has
outlined, that is what he has
indicated.
He has his own
reasons, he didn’t want Dr.
Keown’s report introduced. He
has his own reason why he
doesn’t
want
the
final
argument,
which
we
have
discussed,
and
I
have
attempted to dissuade him on
that approach, but –

COURT:

Are those reasons that
appropriate to put on
record?

LEGRANDE:

No, sir, they are very personal
reasons to him.

COURT:

Does she speak correctly?

PETITIONER:

Yes, sir.

Id. at 230-31.

that

is

are
the

After hearing closing argument from the state, the

jury unanimously recommended death (Ex. A2 at 268; Ex. A5 at 584).

- 31 -

At the Spencer hearing, counsel told the court that she
intended to offer Petitioner's psychiatric report into evidence,
but that Petitioner did not want her to do so (Ex. A3 at 430).
Petitioner was asked whether he wished to have the court consider
anything in reference to his sentence, but Petitioner declined.
Id.
At the post-conviction evidentiary hearing on this claim,
LeGrande testified that Petitioner told her that he did not want
her to present mitigation evidence on his behalf (Ex. D18 at 1778).
He did not want to testify or allow her to “present anything about
what occurred. And he didn’t want [her] to cross-examine witnesses,
or anything else.” Id. at 1788.

She reiterated:

Okay, and we have had discussions on that, so,
um, as I indicated at the time, Mr. Krawczuk
indicated he wanted to plead guilty and he
wanted the death penalty.
He did not even
want a sentencing phase. But that was forced
upon him.
Did not want me to cross-examine
witnesses.
Did not want me to present any
evidence. Did not want me to make any closing
arguments. And, at sentencing, did not want
anything added at that time.
Id. at 1806.

She stated that if Petitioner had allowed her to do

so, she would have looked at other doctors and explored other
issues. Id. at 1785.
Id. at 1786.

She may have looked for a neuropsychologist.

She would have secured more experts at the penalty

phase if Petitioner had not expressly asked her not to do so. Id.
at 1826, 1829.

After LeGrande was examined by the state and by

- 32 -

Petitioner's

post-conviction

counsel,

the

following

occurred between LeGrande and the court:
COURT:

I’ve got a couple of questions,
which is always frightening.
I
think it’s in my notes, but I’m not
exactly sure.
Was there some point in your
representation of [Petitioner] when
he actually said he didn’t want you
to do anything?

LEGRANDE: At the – at the – Yes, he came in
and he entered a plea, and he asked
at that time that he wanted the
death penalty.
COURT:

Um-hmm.

LEGRANDE: And you informed him that you had to
have the mitigation stage. And, as
I remember it, during the mitigation
phase trial, um, after each witness
I would confer with him, and I would
announce to the Court, “I have no
questions because – at the request
of my client.” And he did not want
me to pursue.
I then, after that was over, and
they
came
back
with
the
recommendation, I also indicated to
him that he still could present
evidence to you at the sentencing.
And that he did not want that. So
I did not pursue anything else.
COURT:

But it was – it was up through the
plea, and then it was either shortly
at that time, or shortly after, that
he indicated that he didn’t want the
penalty phase evidence?

LEGRANDE: At the plea, he indicated that he
did not even want to wait for a
penalty, he wanted you to sentence

- 33 -

exchange

him, I believe.
And then, after
that, he did not want any –
Well, he was not cooperative with me
on getting—
COURT:

Um-hmm.

LEGRANDE: -I information about family and
those type of things to talk to.
Um, he kind of wanted to leave his
family out of it.
But I did get calls from, according
to my records, from his mother and
his grandmother.
(D18 at 1829-31).

Petitioner did not testify at the evidentiary

hearing. Id. at 1833.
The state court reasonably concluded that Petitioner gave
LeGrande
evidence.

unmistakable

instructions

not

to

present

mitigation

Therefore, in order to establish Strickland prejudice,

Petitioner must demonstrate both: (1) a reasonable probability
that he would have authorized LeGrande to present mitigation
evidence

if

had

been

more

fully

advised

about

the

available

evidence; and (2) a reasonable probability that his evidence would
have convinced a jury that the death penalty was unwarranted based
on the aggravating and mitigating factors. Pope, 752 F.3d at 1266
(citing Landrigan, 550 U.S. at 475-77; Strickland, 466 U.S. at
694; Gilreath, 234 F.3d at 551-52).

Petitioner cannot meet the

first of these requirements.
Nothing in the record suggests that Petitioner would have
changed his directions to counsel had he been more fully informed

- 34 -

about mitigating evidence.

Petitioner argues that Strickland does

not require that he make such a showing (Doc. 30 at 17).
Court does not agree.
the

performance

This

A petitioner bears the burden of proof on

prong

as

well

as

the

prejudice

prong

of

a

Strickland claim. See Williams v. Allen, 598 F.3d 778, 789 (11th
Cir. 2010).

Moreover, the Eleventh Circuit, has specifically held

that in order to show prejudice, the petitioner “must affirmatively
establish that, despite his instructions to his attorney and his
comments to the court, there is a reasonable probability that he
would have allowed mitigation evidence about his mental health or
personal history to be presented if properly advised.” Pope, 752
F.3d at 1254.

Just as the petitioner in Pope, Petitioner has

“offered no affidavit, deposition, or statement from himself, his
counsel, or even from his mental health experts claiming that [he]
would have changed his instructions to counsel if advised of
mitigation evidence.” Id. at 1267.
Petitioner argues that he has not refused to cooperate with
post-conviction counsel and has been cooperative with his postconviction mental health experts (Doc. 30 at 18).
then,

Petitioner

asks

this

Court

to

infer

from

Presumably
his

lack

of

obstruction during his post-conviction proceedings, that there is
a reasonable probability that he would have allowed mitigation
evidence

about

his

mental

health

or

personal

history

to

be

presented at his penalty phase of his trial or at the Spencer

- 35 -

hearing.

“This

argument

ignores

[Petitioner's]

explicit

statements to the contrary and reverses his burden.” Pope, 752
F.3d at 1267.

Petitioner has not affirmatively established that,

despite his repeated assertions otherwise, he would have allowed
mitigation

to

be

presented

had

he

been

properly

advised.

Accordingly, the Florida Supreme Court had a reasonable basis to
deny relief, and Petitioner is not entitled to federal habeas
relief on Claim One.
B.

Claim Two

Petitioner asserts that trial counsel was ineffective for
failing

to

“object

to

improper

comments[.]” (Doc. 1 at 92).
was

ineffective

for:

(1)

prosecution

arguments

and

Specifically, he urges that counsel
not

objecting

to

the

prosecutor’s

statements during voir dire in which he “asked the jury if they
could decide the case without regard to sympathy . . . and told
the jurors that it was their duty to follow the law they were
instructed on, or be responsible for a miscarriage of justice”;
(2) not objecting to the prosecutor’s statements during final
argument that “the ‘legal’ recommendation for them to make was
death.”; (3) failing to request a specific instruction on mercy as
a consideration in the penalty phase of a capital trial; and (4)
not objecting to the prosecutor’s comments on Petitioner's lack of
remorse.

Id.

at

92-95.

Each

separately.

- 36 -

subclaim

will

be

addressed

1.

Counsel was not ineffective for failing to object
to the prosecutor’s statements during voir dire

Petitioner asserts that counsel was ineffective for failing
to object when the prosecutor asked the prospective jurors if they
could decide the case without regard to sympathy (Doc. 1 at 93).
Specifically, he points to the prosecutor’s following statements
to the prospective jury:
This case is going to raise a lot of emotion
in you, and maybe even sympathy feelings.
Maybe sympathy feelings for Mr. Krawzcuk,
sympathy feelings for a person who was killed
in this case, a person by the name of David
Staker. Anybody know David Staker?
. . .
Do all of you realize that sympathy, either
for the victim in this case, David Staker, or
for the Defendant, Anton Krawczuk – the judge
will tell you feelings of sympathy do not and
should not be a part of your deliberations.
And do all of you think you can set aside any
feelings of sympathy you may have for either
Mr. Krawczuk or Mr. Staker or Mr. Staker’s
family?
(Ex. A8 at 769-70).

Another discussion was had with members of

the panel when a prospective juror expressed that she would have
difficulty setting aside feelings of sympathy for the victim. Id.
at 811-14. The prosecutor told the jury that any decision must be
based only on evidence. Id. at 813.

The prosecutor queried and

explained:
Does anyone here feel that they would not be
able to attempt to set aside feelings of
sympathy or hatred or whatever else may come

- 37 -

up, and base your decision solely on the
evidence and the law as the Judge gives it to
you? Everyone here think they can try to do
that?
Okay.
Because it would not be fair to the
State of Florida, and it would not be fair to
Mr. Krawczuk if you didn’t try to do that.
Does everybody understand that?
(813-14).

Petitioner claims that “[t]he prejudicial effect of the

state’s actions were further exasperated by the trial court’s
instruction to the jury that sympathy should play no part in their
decision.” (Doc. 1 at 94). 9
The post-conviction court denied this claim, noting that any
claim of trial court error was procedurally barred because it was
not raised on appeal. 10

The post-conviction court then concluded

that there was no error because similar anti-sympathy instructions
have been approved by the United States Supreme Court (Ex. D21 at
528) (citing California v. Brown, 479 U.S. 538 (1987); Saffle v.
Parks, 494 U.S. 484 (1990)).

The court also noted that, subsequent

9

As part of the court’s instructions to the jury, it
stated:
Number five, feelings of prejudice, bias or
sympathy are not legally reasonable doubts and
they should not be discussed by any of you in
any way. Your verdict must be based on your
views of the evidence and on the law contained
in these circumstances.
(Ex. A2 at 255).
10

Petitioner raises the instant claim as only a claim of
ineffective assistance of counsel.

- 38 -

to Petitioner's trial, the Florida Supreme Court approved death
penalty

cases

including

instruction.” Id.

“virtually

the

same

anti-sympathy

Finally, the post-conviction court rejected

Petitioner's assertion that his sentence was unreliable because
“the

judge

believed

sympathy and mercy.”

Florida

law

precluded

considerations

of

The post-conviction court noted that the

only support for Petitioner's assertion was that the court read
“what had now become the current standard instruction in penalty
proceedings.” Id.
Petitioner appealed the post-conviction court’s denial of
this claim (Ex. D6).

The Florida Supreme Court concluded that “we

find no deficiency where counsel was not permitted to participate
in the proceedings.” Krawczuk II, 92 So. 3d at 195.

The Florida

Supreme Court further noted:
[A] defendant is “not prejudiced by the
improper statements of the prosecutors [where]
the juries were given the proper instructions
for analyzing aggravating and mitigating
circumstances.” [Anderson v. State, 18 So. 3d
501, 517 (Fla. 2009)]. As noted by the postconviction court, the record indicates that
the
jury
was
properly
instructed.
Accordingly, we find that Krawczuk has not
demonstrated prejudice.
Krawczuk, 92 So. 3d at 207.

Finally, the Florida Supreme Court

determined that counsel was not ineffective for failing to object
to the standard jury instruction which stated that “[t]his case
must not be decided for or against anyone because you feel sorry

- 39 -

for anyone or are angry at anyone. Fla. Std. Jury Instr. (Crim.)
3.10.” Id. at 205.
Petitioner

now

argues

that

Petitioner's

instructions

regarding LeGrande’s participation in the penalty phase “were not
unwaivering” and that Petitioner did not “have the authority or
ability to instruct his attorney to object or not to object.” (Doc.
1 at 96). Petitioner asserts that the Florida Supreme Court’s
decision was contrary to Mills v. Maryland, 486 U.S. 367 (1988)
and Franklin v. Lynaugh, 487 U.S. 164 (1988).

Specifically, he

claims that the jury was left with the impression that mercy could
not be considered when determining Petitioner's sentence (Doc. 1
at 95).

Petitioner's arguments do not entitle him to federal

habeas relief. 11

11

These cases do not lend support to Petitioner's claims.
The petitioner in Mills argued that the court's instructions and
verdict slip served “to require the imposition of a death sentence
if the jury unanimously found an aggravating circumstance, but
could not agree unanimously as to the existence of any particular
mitigating circumstance.” 486 U.S. at 371.
The Supreme Court
vacated Mills’ sentence because the jurors “well may have thought
they were precluded from considering mitigating evidence unless
all 12 jurors agreed in the existence of a particular such
circumstance.” Id. at 384. Petitioner does not now allege that
the court instructed the jury that it must agree unanimously on
mitigation factors.
In Franklin, the Supreme Court rejected a petitioner’s
challenge to the Texas jury instructions in capital cases because
the instructions did not preclude “jury consideration of any
relevant mitigating circumstances in this case, or otherwise
unconstitutionally limited the jury's discretion[.]” 487 U.S. at
183.
Similarly, in the instant case, Petitioner's sentencing

- 40 -

As discussed in Claim One, supra, based upon the record, the
Florida

Supreme

Court

reasonably

concluded

that

Petitioner

instructed LeGrande not to participate in the penalty phase of his
trial.

Accordingly,

the

Florida

Supreme

Court

reasonably

concluded that LeGrande’s performance could not be deficient for
failing to do so. See Roberts v. Dretke, 356 F.3d 632, 638 (5th
Cir. 2004) (noting that defendant may not obstruct his attorney's
efforts, then claim ineffective assistance of counsel); Owens v.
Guida, 549 F.3d 399, 412 (6th Cir. 2008) (“A defendant cannot be
permitted to manufacture a winning IAC claim by sabotaging her own
defense, or else every defendant clever enough to thwart her own
attorneys would be able to overturn her sentence on appeal.”).
In addition, Petitioner has not provided grounds on which
LeGrande could have objected to the prosecutor’s statements or to
the jury instructions.
similar

claims

The Florida Supreme Court has rejected

regarding

the

role

of

sympathy

in

a

jury’s

consideration of mitigation. See Zack v. State, 753 So. 2d 9, 2324 (Fla. 2000) (“[T]he State’s argument concerning sympathy was a
proper

admonition

for

the

jurors

to

consider

the

mitigation

evidence without resort to their emotions.”)(footnote omitted);
Gonzalez v. State, 136 So. 3d 1125, 1158 (Fla. 2014) (rejecting a
defendant’s claim regarding jury instructions on the role of

court did not give any jury instruction limiting
discretion to consider all mitigating factors.

- 41 -

the

jury’s

sympathy); see also Saffle v. Parks, 494 U.S. 484, 489 (1990) (the
Eighth Amendment does not require that jurors be allowed to base
its sentencing decision upon sympathy it feels for the defendant).
Although each of these cases was decided after Petitioner's penalty
phase

trial,

the

courts’

subsequent

rejections

of

similar

“sympathy” arguments, combined with the lack of authority allowing
or requiring a jury to use sympathy to guide its deliberations,
indicates that any objection by counsel would have been futile.
Counsel’s performance is not deficient for failing to make a futile
objection.

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001)

(counsel is not ineffective for failing to raise a non-meritorious
objection);

James

v.

Borg,

24

F.3d

20,

27

(9th

Cir.

1994)

(counsel's failure to make futile motions does not constitute
ineffective assistance)
Moreover,

when

viewed

in

context,

the

anti-sympathy

statements made by the prosecution and the court appeared to be
directed towards ensuring that the jury’s recommendation was not
based upon sympathy for the victim.

Even had counsel not been

constrained from making an objection to the “sympathy” comments,
reasonable

counsel

could

have

concluded

Petitioner's best interests to do so.

that

it

was

not

in

See Castillo v. Sec’y, Fla.

Dep’t of Corr., 722 F.3d 1281, 1285 n.2 (11th Cir. 2013)(“The

relevant

question

under

Strickland's

performance

prong,

which

calls for an objective inquiry, is whether any reasonable lawyer

- 42 -

could have elected not to object for strategic or tactical reasons,
even if the actual defense counsel was not subjectively motivated
by those reasons.”).
2.

Counsel was not ineffective for failing to request
a jury instruction on mercy

Petitioner's

claim

that

LeGrande

provided

ineffective

assistance by failing to request a specific “mercy” instruction is
without merit. In Boyde v. California, the Supreme Court concluded
that the legal standard for reviewing jury instructions claimed to
restrict a jury's consideration of relevant mitigating evidence is
whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration
of

constitutionally

relevant

evidence.

494

U.S.

370,

378-80

(1990).
The trial court did not issue any instruction that prevented
the jury’s consideration of mitigation evidence.

To the contrary,

the trial judge specifically instructed the jury that they were to
consider,

as

possible

mitigation,

“any

other

aspect

of

the

defendant's character or record, or any other circumstance of the
offense.” (Ex. A2 ta 257).

The instructions did not prevent jurors

from giving meaningful consideration to any mitigating factor,
including their feelings of mercy for Petitioner. Accordingly,
Petitioner cannot demonstrate Strickland prejudice from counsel’s
failure to request a separate jury instruction on mercy. See Downs

- 43 -

v. Moore, 801 So. 2d 906, 913 (Fla. 2001) (“[T]he ‘catch-all’
standard jury instruction on nonstatutory mitigation when coupled
with counsel’s right to argue mitigation is sufficient to advise
the jury on nonstatutory mitigating circumstances.”); Zakrzewski
v. State, 717 So. 2d 488, 495 (Fla. 1998) (“[T]he trial court is
only required to give the ‘catch-all’ instruction on nonstatutory
mitigating evidence.”); Correll v. Dugger, 558 So.2d 422, 425 (Fla.
1990) (appellate counsel not ineffective for failing to argue on
appeal that trial court had failed to give a specific penalty phase
instruction that the jury could consider mercy during the course
of its deliberations).
3.

Counsel was not ineffective for failing to object
to the prosecutor’s statements indicating that the
law required the jury to recommend the death
penalty

Petitioner asserts that “the prosecution suggested to the
jury during its final argument that the law required them to
recommend the death penalty (Doc. 1 at 93).

Petitioner directs

the Court to three specific statements made by the prosecutor:
I know it’s not an easy situation you have
been placed in, in fact it’s probably one of
the most difficult you have been placed in.
But I submit to you, your decision in this
case will not be a difficult one, legally, for
to you [sic] make.
Of course, it will be a difficult one for you
to make, personally, because it effects the
outcome of a human being, Anton Krawczuk.
Remember that you all indicated during voir

- 44 -

dire, that both the State as well as Mr.
Krawczuk deserve a fair trial.
You have also indicated you would follow the
law as the Judge gives it to you. And I submit
to you that you are going to find, once the
Judge has instructed you on the law, that the
State has met its burden of proof, and we have
proven beyond and to the exclusion of a
reasonable doubt aggravating circumstances
that warrant the imposition of the death
penalty against Anton Krawczuk.
Now as the Judge is going to instruct you, if
you
do
find
there
are
aggravating
circumstances, you will next then look to see
whether or not there are any mitigating
circumstances.
This is not a numbers game.
This is the weight.
If you have one
aggravating circumstance, and you find that
there are mitigating circumstances, if that
one outweighs all of the mitigating, you are
still
legally
required
to
return
a
recommendation that the death penalty be
imposed.
. . .
And I submit to you, ladies and gentlemen of
the jury, that the evidence in this case is
clear.
There was a heinous and atrocious,
premeditated plan to kill Mr. Staker and to
take his property. And I ask you to take your
oath seriously, to look at the evidence
seriously,
and
to
return
a
legal
recommendation to this Court, and that
recommendation, I submit to you, should be
that Anton Krawczuk should be put to death,
thank you.
(Ex. A2 at 232-33, 255). Petitioner argues that the law “never
requires that a death sentence be imposed.

What the law requires

is for the jury to consider the evidence introduced in the guilt

- 45 -

and/or penalty phases of a trial and recommend an appropriate
sentence.” Id. at 93.
Petitioner raised this claim in his Rule 3.850 motion where
it was denied by the post-conviction court.

The Florida Supreme

Court affirmed as follows:
Krawczuk argues that at trial the prosecutor
made several erroneous remarks that led the
jury to believe that they had no choice but to
return
a
recommendation
for
the
death
sentence. Krawczuk further argues that the
trial court improperly instructed the jury,
which compounded this error.
Finally,
Krawczuk argues that trial counsel was
ineffective for her failure to object or
otherwise attempt to correct these errors.
Each of these claims must fail.
Turning to the prosecutor's remarks, Krawczuk
claims that during voir dire and closing
arguments, the prosecutor suggested that the
law required the jury to recommend the death
penalty if the aggravating circumstances
outweighed
the
mitigating
circumstances.
Additionally,
Krawczuk
argues
that
the
prosecutor suggested on multiple occasions
that the jury should decide the case without
regard for sympathy. The postconviction court
correctly concluded that the claim was
procedurally barred because trial counsel
failed to object to the comments and the issue
was not raised on direct appeal, nor did the
remarks constitute fundamental error. See
Rogers v. State, 957 So.2d 538, 547 (Fla.
2007) (“We have consistently held that
substantive
claims
of
prosecutorial
misconduct could and should be raised on
direct appeal and are thus procedurally barred
from
consideration
in
a
postconviction
motion.”) (citations and internal quotations
omitted); Lamarca v. State, 931 So.2d 838, 851
n. 8 (Fla. 2006).

- 46 -

As for Krawczuk's claim that counsel was
ineffective for failing to object to these
remarks, we find no deficiency where counsel
was not permitted to participate in the
proceeding. As it relates to the prosecutor's
comments regarding the jury's recommendation,
we have said:
Florida law provides that a penalty phase
jury, after deliberating, shall render an
advisory sentence to the court. That
sentence is to be based on:
(a)

Whether
sufficient
circumstances exist...

aggravating

(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.

§ 921.141(2)(a), Fla. Stat. (2008). “[A]
jury is neither compelled nor required to
recommend death where aggravating factors
outweigh mitigating factors.” Cox v.
State, 819 So.2d 705, 717 (Fla. 2002)
(quoting Henyard v. State, 689 So.2d 239,
249–50 (Fla. 1996)).
Anderson v. State, 18 So.3d 501, 517 (Fla.
2009). Further, we found that a defendant is
“not prejudiced by the improper statements of
the prosecutors [where] the juries were given
the
proper
instructions
for
analyzing
aggravating and mitigating circumstances.”
Anderson, 18 So.3d at 517. As noted by the
postconviction court, the record indicates
that the jury was properly instructed.
Accordingly, we find that Krawczuk has not
demonstrated prejudice.

- 47 -

Krawczuk II at 206-07.

The Florida Supreme Court reasonably

concluded that LeGrande’s performance was not deficient because
she was not permitted to participate in Petitioner's penalty
proceedings.

See discussion supra Claim One.

In addition, the Florida Supreme Court reasonably concluded
that

Petitioner

prosecution’s

cannot

inaccurate

demonstrate
statements

prejudice

about

Florida’s

from

the

weighing

process because the trial court instructed the jury that it was to
follow the law as given in his instructions (Ex. A2 at 254, 255).
Petitioner does not argue that the jury instructions read by the
trial court are inconsistent with the law.

Rather, he complains

that the jury did not receive an additional, separate instruction
on “mercy” in light of the prosecutor’s misstatements regarding
the jury’s legal requirements (Doc. 1 at 93).

The Florida Supreme

Court was entitled to conclude that a separate instruction was not
necessary and that the court’s jury instruction requiring the jury
to “consider all the evidence tending to establish one or more
mitigating circumstances, and give that evidence such weight as
you feel it should receive in your reaching your conclusion as to
the sentence that should be imposed” adequately cured any harm
from the prosecutor’s earlier misstatements (Ex. A2 at 257).

See

Johnson v. Alabama, 256 F.3d 1156, 1184 (11th Cir. 2001) (“[E]ven
if we assumed performance error, any prejudice to Johnson was cured
by the trial court’s jury instructions.”); Shriner v. Wainwright,

- 48 -

715 F.2d 1452, 1459 (11th Cir. 1983) (“[W]ith a properly instructed
jury, there is nothing to show the jury relied on the prosecutor’s
remarks.”); Darling v. Sec’y, Dep’t of Corr., 619 F.3d 1279, 1282
(11th Cir. 2010) (Florida Supreme Court reasonably concluded that
the trial court’s correct jury instructions cured prosecutor’s
misstatement of the law).

The Florida Supreme Court’s decision

was a reasonably application of Strickland’s prejudice prong. See
also discussion Claim II(1),(2).
4.

Counsel was not ineffective for failing to argue
that lack of remorse is not an aggravating factor

Petitioner

asserts

that

“the

prosecutor

exceeded

the

boundaries of proper argument during his closing argument when he
discussed Mr. Krawczuk’s alleged lack of remorse as an aggravator.”
(Doc. 1 at 95).

Specifically, Petitioner points to a portion of

the state’s closing argument in which the prosecutor urged that
the state had satisfied its burden of showing the murder of David
Staker was committed in a cold, calculated and premeditated manner
without any pretense of moral or legal justification (Doc. 1 at
95).

The prosecutor described a portion of Petitioner's taped

confession as follows:
Ladies and gentlemen, you listen to that tape.
This person, Mr. Krawczuk, delivered that in
a cold manner. To use one of his words from
the taped statement, it was “clinical.” There
was no remorse in his voice. Yeah, I planned
it out.
Yeah, we took gloves.
Yeah, I
strangled him to death.
I listened to him
gurgle. I poured Vanish down his throat. And

- 49 -

a stuffed a rag in his mouth with the help of
my buddy. I took him to a prearranged site
and dumped his body.
. . .
And when his buddy, William says, “I think I
might get sick”, Krawczuk says, “Don’t get
sick now.”
That wasn’t bothering Mr.
Krawczuk. His plan was all coming together.
He was exterminating David Staker. And what
else does he say that shows you his total lack
of remorse and total indifference to the life
of David Staker?
(Ex. A2 at 243, 246).

Petitioner argues that lack of remorse is

not an aggravating factor that can be considered under Florida law
and that LeGrande was ineffective for failing to object to the
introduction and consideration of non-statutory aggravators.” Id.
(citing Kimmelman v. Morrison, 477 U.S. 365 (1986)). 12
Petitioner raised this claim in his Rule 3.850 motion, and
the post-conviction court determined that LeGrande’s performance
was

not

deficient

because

Petitioner

instructed

her

not

to

participate in the penalty phase proceedings (Ex. D21 at 2526).
The post-conviction court further concluded that the prosecutor’s
“brief and isolated references to lack of remorse are of minor
consequence and harmless beyond a reasonable doubt.” Id.

Finally,

the court noted that the prosecutor made it clear that only three

12

In Kimmelman, the petitioner raised an ineffective
assistance of counsel claim based on his trial counsel’s failure
to timely file a motion to suppress evidence allegedly obtained in
violation of the Fourth Amendment. 477 U.S. at 365. Kimmelman,
was not a death penalty case and has no bearing on this claim.

- 50 -

aggravating circumstances were at issue and that the trial court
instructed the jury that it was limited to considering only those
three aggravating circumstances. Id. at 257.

Petitioner appealed

the denial to the Florida Supreme Court (Ex. D26).

The Florida

Supreme Court made no written finding on this claim.
Petitioner

cannot

demonstrate

prejudice

because

both

the

prosecutor and the trial judge told the jury that it was to
consider only three aggravating factors: (1) whether the crime was
committed while Defendant was engaged in a robbery; (2) whether
the crime was especially wicked, evil, atrocious, or cruel; and
(3) whether the crime was committed in a cold, calculated and
premeditated manner without any pretense of moral justification
(Ex. A2 at 233, 235, 237, 255).

Juries are presumed to follow

instructions. Jamerson v. Sec’y, Dep’t of Corr., 410 F.3d 682, 690
(2005).

Finally, Florida courts have consistently found that a

prosecutor’s isolated reference to a defendant’s lack of remorse
constitutes harmless error. See Floyd v. State, 808 So. 2d 175,
185 (Fla. 2002)(“Even if appellate counsel had raised this issue
on appeal we would have concluded that the prosecutor's isolated
reference to Floyd's lack of remorse during the State's closing
argument constituted harmless error.”); Shellito v. State, 701
So.2d 837, 842 (Fla. 1997) (brief reference to lack of remorse
constituted harmless error).

- 51 -

Given that the error, if any, complained of was harmless,
Petitioner cannot demonstrate prejudice from counsel’s failure to
object. See Boland v. Sec’y, Dep’t of Corr., 278 F. App’x 876, *4
(11th Cir. 2008) (it was reasonable for the state courts to
conclude that Boland was not prejudiced because the error of which
he complained was harmless); Johnson v. Blackburn, 778 F.2d 1044,
1050 (5th Cir. 1985) (“If an error is shown to be harmless, then
the error cannot satisfy the prejudice prong of Strickland.”).
The state court’s denial of relief on each of the sub-claims
raised

in

Claim

Two

was

not

contrary

to

or

an

unreasonable

application of Strickland, and Petitioner is not entitled to
relief. 28 U.S.C. § 2254(d).
C.

Claim Three

Petitioner asserts that he is innocent of the death penalty
because co-defendant William Poirier received a disparate sentence
(Doc. 1 at 97).

Specifically, Poirier pleaded guilty to second

degree murder after Petitioner's conviction and sentence.
97-98.

Id. at

Poirier was sentenced to 35 years in prison on the murder

charge and a concurrent term of 15 years in prison on the robbery
charge. Id. at 98.

Petitioner cites Sawyer v. Whitley, 505 U.S.

333 (1992) for the proposition that “he is entitled to relief for
constitutional errors which resulted in the conviction or sentence
of death.” (Doc. 1 at 97).

- 52 -

Petitioner raised this claim in his Rule 3.850 (Ex. D26), and
it was rejected by the post-conviction court on three separate
grounds: (1) Petitioner and Poirier were not convicted of the same
offense; (2) the claim was procedurally barred because it had
already been considered and rejected in the original appeal; and
(3) Petitioner was more culpable than Poirier (Ex. D21 at 2479).
The Florida Supreme Court also rejected the claim on the grounds
that the claim was procedurally barred, Poirier received a lighter
sentence because he pleaded guilty to second-degree murder, and
Petitioner was the more culpable of the two. Krawczuk II, 92 So.
3d at 207-08. 13

13

Despite the post-conviction court’s conclusion that the
issue “was considered and rejected” on direct appeal, the records
are not clear on this matter. Petitioner did not raise this issue
as a separate claim in his brief on direct appeal (Ex. A9). In
Krawczuk I, the Florida Supreme Court summarized, in a footnote,
the trial court’s conclusions regarding Petitioner's relative
culpability:
The court found no disparate treatment between
Krawczuk and Poirier, noting that Krawczuk
“scouted the site to dispose [of] the body,
made the arrangements with the victim to go to
his house, physically strangled the victim
with the co-defendant's assistance, placed the
drain cleaner in the victim's mouth and
steadied the co-defendant when he was on the
point
of
becoming
sick”
and
that
the
psychiatrist thought Krawczuk was overstating
when he said he had been influenced by
Poirier. Additionally, Krawczuk was older and
bigger than Poirier.
634 So. 2d at 1074 n.5. In Krawczuk I, he Florida Supreme Court
made no comment on whether it agreed with the trial court’s

- 53 -

Although Petitioner presents Claim Three as a constitutional
claim, the Supreme Court has never required a state court to
compare the culpability and sentences of co-defendants in capital
cases.

To the contrary, the Supreme Court has determined that

absent a showing that a system operated in an arbitrary and
capricious manner, a petitioner “cannot prove a constitutional
violation

by

demonstrating

that

other

defendants

who

may

be

similarly situated did not receive the death penalty.” McCleskey
v. Kemp, 481 U.S. 279, 306–07 (1987) (emphasis in original); see
also

Williams

Constitution

v.

Illinois,

permits

399

U.S.

qualitative

235,

243

differences

in

(1970)
meting

(“The
out

punishment and there is no requirement that two persons convicted
of the same offense receive identical sentences.”); Pulley v.

findings on Petitioner's and Poirier’s relative culpability; the
note was made in regards to Petitioner's argument that the trial
court erred when it failed to find the existence of nonstatutory
mitigators. Id. at 1073.
In Krawczuk II, the Florida Supreme Court suggested that
Petitioner did not raise the issue on direct appeal by stating
that, “[a]ppellate counsel did mention Poirier’s sentence in the
initial brief, although not as a distinct issue.” Krawczuk II, 92
So. 3dat 209. The Florida Supreme Court also noted that “[b]ecause
this claim was, or should have been, raised on direct appeal, the
lower court correctly found that it was procedurally barred.” Id.
at 207 (noting that the issue had been addressed in a footnote in
its original order on Petitioner’s direct appeal). Because this
claim fails on the merits, this court need not address whether it
is also unexhausted. See 28 U.S.C. § 2254(2) (“An application for
a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).

- 54 -

Harris, 465 U.S. 37, 50-51 (1984) (“There is thus no basis in our
cases for holding that comparative proportionality review by an
appellate court is required in every case in which the death
penalty is imposed and the defendant requests it.”).
Moreover, the Florida Supreme Court has spoken directly to
Petitioner's claim that Poirier was the more culpable of the two
murderers.

Affirming

the

denial

of

Petitioner's

Rule

3.850

motion, the Florida Supreme Court found Petitioner, not Poirier,
to be the more culpable party:
As summarized by the lower court's findings:
(1) Krawczuk met the victim six months before
the incident and started going to the victim's
house three months prior, but Poirier had only
been with Krawczuk to the victim's house one
time prior to the murder; (2) Krawczuk
initiated the events by suggesting they go to
the bedroom, he initiated the roughhousing, he
pinned the victim down, choked him, poured
Crystal Vanish down the victim's throat, and
poured water in; and (3) Krawczuk was older
and bigger than Poirier, more aggressive, and
Poirier was called Krawczuk's protégé. See
Krawczuk, 634 So.2d at 1074 n. 5 (“Krawczuk
‘scouted the site to dispose [of] the body,
made the arrangements with the victim to go to
his house, physically strangled the victim
with the co-defendant's assistance, placed the
drain cleaner in the victim's mouth and
steadied the co-defendant when he was on the
point
of
becoming
sick’
and
...
the
psychiatrist thought Krawczuk was overstating
when he said he had been influenced by
Poirier. Additionally, Krawczuk was older and
bigger than Poirier.”).
Krawczuk II, 92 So. 3d at 207-208.

Even if this proportionality

claim were cognizable in federal habeas, the findings of the

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Florida Supreme Court are neither contrary to, nor an unreasonable
application

of,

clearly

established

federal

law.

Nor

has

Petitioner presented clear and convincing evidence showing that
the state court’s conclusion that Petitioner was more culpable
than Poirier was an unreasonable determination of the facts.

To

the extent, Petitioner asserts that the Florida Supreme Court
misapplied state law in its adjudication of this claim, “[a]
federal court may not issue the writ on the basis of a perceived
error of state law.” Harris, 465 U.S. at 41.
Petitioner is not entitled to federal habeas relief on Claim
Three.
D.

Claim Four

Petitioner asserts that the trial court erred by failing to
properly consider and weigh mitigation evidence (Doc. 1 at 100).
Petitioner asserts:
The Eighth Amendment forbids a sentencer in a
capital case from refusing to consider any
relevant mitigating evidence presented by the
defendant, nor can it give such mitigating
evidence no weight by excluding it from
consideration. Eddings v. Oklahoma, 455 U.S.
104 (1982). In Mr. Krawczuk’s case, such an
Eighth Amendment violation occurred, and the
Florida Supreme Court’s decision is contrary
to and/or an unreasonable application of
Eddings. See Krawczuk I at 1073-74.
It was incumbent upon the trial court judge in
Mr. Krawczuk’s case to analyze any possible
nonstatutory mitigating circumstances.
The
court, however, failed to do so. First, the
court failed to inquire or seek any medical

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testimony about Mr. Krawczuk despite his
psychological
history,
his
increasing
depression, and his use of medications. While
Mr. Krawczuk’s trial counsel advised the court
that there were mitigation witnesses, the
court made no further inquiry.
Several
factors
that
unquestionably
comprise
nonstatutory mitigating factors were not
considered by the court, including Mr.
Krawczuk’s deprived childhood, where his
father failed to acknowledge him and his
mother was abusive; his service in the
military which was shortened by mental
illness; and increased depression and feelings
of
built.
Moreover,
the
Presentence
Investigation Report in this case recommended
life imprisonment.
Because the trial court
failed
to
consider
these
factors
in
mitigation, the Eighth Amendment was violated.
(Doc. 1 at 100-01).
Petitioner raised this claim on direct appeal where it was
rejected by the Florida Supreme Court. The court determined that
the trial court “carefully considered the psychiatrists report and
the presentence investigation report and found that the record did
not support the establishment of any nonstatutory mitigators.”
Krawczuk I, 634 So. 2d at 1073.

The Florida Supreme Court also

pointed to the trial court’s oral statement that, in addition to
those items, he considered “anything else [he] had been able to
discern from these proceedings.” Id. at 1073 n.4.

The Florida

Supreme Court’s conclusions are supported by the record.
At Petitioner's Spencer hearing, the trial court noted that
“[w]ith respect to mitigating factors, I believe that I may well
be entitled to consider matters in the report and the matters in

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the

presentence

investigation

finding mitigating factors.
several.

at

the

purpose

of

mitigating,

It appears, at least there may be

At least there is the one, that is fairly insignificant

criminal record.
A3

for

419-20).

So, um, I will be looking at that further.” (Ex.
At

the

oral

pronouncement

of

Petitioner's

sentence, the trial court stated that it had “looked to the
presentence investigation and psychiatrist’s report 14 in this case,
solely for the purpose of considering whether they contain any
mitigating factors.” Id. at 425.

The court concluded that he

could not find any non-statutory mitigating factors “based on those
documents or anything else [he had] been able to discern in these
proceedings.” Id.

The court did not state that it refused to

consider mitigating circumstances; rather, it simply found none.
Other than re-arguing that counsel should have put more evidence

14

The trial court’s sentencing order also references “the
psychiatrist report (in the record sealed)” and notes that the
psychiatrist was of the opinion that the Petitioner overstated
Poirier’s influence over Petitioner (Ex. A5 at 590, 592).
The
court does not explain whether he refers to Dr. Keown’s report or
to a different psychiatric report.
At the Spencer hearing,
Petitioner indicated that he did not wish for the court to have
access to Dr. Keown’s report. However, Keown’s report did note
that “more than likely [Petitioner] is the more passive of the two
defendants, and so I think there is some truth to his allegation
that he was influenced by his co-defendant. However, I think he is
probably overstating this.” (Ex. D19B at 2204). Moreover, the
Florida Supreme Court stated that the court, “over Krawczuk's
personal objection, stated that he would look at the presentence
investigation report and the confidential defense psychiatrist's
report for possible mitigating evidence.” Krawczuk I, 634 So. 2d
at 1072. Accordingly, it appears that the trial court considered
Keown’s report when making its decision.

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before the sentencing court, Petitioner does not explain how the
state court’s adjudication was contrary to clearly established
law.
To the extent Petitioner argues that the trial court should
have ignored Petitioner's request to waive mitigation and ordered
that

additional

mitigation

evidence

be

presented

despite

Petitioner's explicit waiver, he has presented no support for this
claim.

In fact, the courts which have addressed this issue have

found that a defendant is allowed to waive a mitigation case. See
Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir. 1992) (“If a
defendant may be found competent to waive the right of appellate
review of a death sentence, we see no reason why a defendant may
not

also

be

found

competent

to

waive

the

right

to

present

mitigating evidence that might forestall the imposition of such a
sentence in the first instance”); Tyler v. Mitchell, 416 F.3d 500,
503–04 (6th Cir. 2005) (holding that because a capital defendant's
counsel

is

defendant

not

constitutionally

prevents

him

from

ineffective

when

investigating

and

a

competent
presenting

mitigation evidence, it follows that the Constitution does not
prohibit

a

competent

capital

defendant

from

waiving

the

presentation of mitigation evidence); Chandler v. United States,
218 F.3d 1305, 1319 n. 25 (11th Cir. 2000) (“the cases concerning
the constitutional right of defendants not to be precluded or
limited

by

the

state

or

the

court

- 59 -

in

their

presentation

of

mitigation evidence at sentencing do not support the proposition
that, if counsel does not present all possible mitigation at
sentencing, then defendant has been denied some constitutional
right”); James v. Culliver, No. CV-10-S-2929-S, 2014 WL 4926178,
at * 91 (N.D. Ala. 2014) (“A competent defendant can waive the
presentation of mitigating evidence during the penalty phase.”);
Landrigan, 550 U.S. at 479 (“We have never imposed an ‘informed
and

knowing’

requirement

upon

a

defendant's

decision

not

to

introduced evidence.”) (citing Iowa v. Tovar, 541 U.S. 77, 88
(2004)).
Petitioner's reliance on Eddings is misplaced.

In Eddings,

the Supreme Court found that a sentence may not refuse to consider,
as a matter of law, any relevant mitigating evidence.” 455 U.S. at
114 (emphasis in original).

In its sentencing order, the trial

court specifically acknowledged that it considered all available
mitigation

evidence

and

found

that

supported by the facts of the case.

a

sentence

constitutionally

required

to

death

was

This Court is not convinced

that Eddings stands for the proposition that
is

of

a sentencing judge

independently

seek

out

and

consider additional mitigating evidence against the express wishes
of the defendant.

Petitioner has cited no federal law even

marginally supportive of this proposition, much less establishing
it as a requirement.

Because there is no Supreme Court law on

this issue, the Florida Supreme Court's rejection of Petitioner's

- 60 -

claim is not contrary to, and does not involve an unreasonable
application of, clearly established federal law as determined by
the Supreme Court.

Claim Four is denied pursuant to 28 U.S.C. §

2254(d).
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
V.

Certificate of Appealability 15
A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).

Rather, a district court must first issue

a certificate of appealability (“COA”).

“A [COA] may issue . . .

only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, Petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Miller–El, 537 U.S. 322, 335–36 (2003).

15

Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.

- 61 -

Petitioner has not made the requisite showing on any of his
claims, and a certificate of appealability will be denied.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The

Florida

Attorney

General

is

DISMISSED

as

a

respondent.
2.

Each claim in the Petition for Writ of Habeas Corpus

filed by Anton J. Krawczuk is DENIED.
3.

Petitioner is DENIED a certificate of appealability.

4.

The Clerk of the Court is directed to terminate all

pending motions, enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2015.

SA: OrlP-4
Copies to: Counsel of Record

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5th

day of