BARWICK v. TUCKER
Filing
19
ORDER DENYING THE PETITION - The clerk must enter judgment stating, "The petition is DENIED with prejudice." A certificate of appealability is GRANTED on this issue: whether Mr.Barwick's attorney rendered ineffective assistance related to mitigation evidence during the penalty phase. A certificate of appealability is denied on any other issue. Signed by JUDGE ROBERT L HINKLE on 3/19/2014. (dlt)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
DARRYL BRIAN BARWICK,
Petitioner,
v.
CASE NO. 5:12cv00159-RH
MICHAEL D. CREWS, in his
capacity as SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
____________________________________/
ORDER DENYING THE PETITION
By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Darryl Brian
Barwick challenges his state-court conviction and death sentence. This order
denies relief.
I
A 24-year-old woman, identified in this order as the victim, lived in an
apartment complex. After sunbathing on the apartment-complex lawn, the victim
returned to her apartment. Someone—overwhelming evidence indicates it was Mr.
Barwick—entered the victim’s apartment and stabbed her with a knife 37 times,
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killing her. Later that day, the victim’s sister found the body in the bathroom
wrapped in a comforter.
Officers arrested Mr. Barwick. He gave a taped confession. Mr. Barwick
said he saw the victim sunbathing, drove to his home, got a knife, walked back to
the victim’s apartment complex, and entered her apartment. Mr. Barwick said he
intended only to steal something, but when the victim resisted, he lost control and
stabbed her. Mr. Barwick said he continued to stab the victim as the two struggled
and fell to the floor. Mr. Barwick said that afterwards he wrapped the body in a
comforter and dragged it to the bathroom. Mr. Barwick said he later threw the
knife in the lake where it was found.
The medical examiner found no evidence of sexual contact. But a crimelaboratory analyst found a semen stain on the comforter. The analyst testified that
two percent of the population could have been the source of the semen and that Mr.
Barwick was in the two percent.
II
A grand jury indicted Mr. Barwick for first degree murder, armed burglary,
attempted sexual battery, and armed robbery.
At a first trial, the jury found Mr. Barwick guilty on all counts and, on the
murder conviction, recommended the death penalty by a 9-3 vote. The judge
sentenced Mr. Barwick to death. But on direct appeal, the Florida Supreme Court
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reversed, based on the prosecutor’s improper consideration of race in exercising
peremptory challenges. Barwick v. State, 547 So. 2d 612 (Fla. 1989) (“Barwick
I”).
At a second trial, a prosecution witness testified that Mr. Barwick failed a
polygraph. The judge promptly declared a mistrial.
At a third trial, the jury found Mr. Barwick guilty on all counts and, on the
murder conviction, recommended the death penalty by a 12-0 vote. The judge
sentenced Mr. Barwick to death.
The judge entered a sentencing order finding six aggravators: (1) previous
convictions for the violent felonies of sexual battery with force likely to cause
death or great bodily harm and burglary of a dwelling with an assault; (2) the
murder was committed during an attempted sexual battery; (3) the murder was
committed to avoid arrest; (4) the murder was committed for pecuniary gain; (5)
the murder was especially heinous, atrocious, or cruel; and (6) the murder was
committed in a cold, calculated, and premeditated manner without any pretense of
moral justification.
The judge found no statutory mitigators but considered nonstatutory
mitigators: Mr. Barwick suffered substantial abuse as a child and had mental
deficits. The judge’s order said, “The Court does not find in this case that the
abuse received by the defendant as a child is a mitigating circumstance.”
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Sentencing Order at 1416-17 (Vol. 12). In context, the order can best be
understood as a ruling that the abuse, while entitled to consideration, did not
outweigh the aggravators.
Mr. Barwick appealed, challenging the guilty verdict and death sentence on
multiple grounds. One was that the judge erred in rejecting as a nonstatutory
mitigator the fact that Mr. Barwick had been abused as a child.
The Florida Supreme Court affirmed the conviction and sentence. Barwick
v. State, 660 So. 2d 685 (Fla. 1995) (“Barwick II”). The court agreed that Mr.
Barwick’s abuse as a child was a nonstatutory mitigator that the judge was required
to consider. The court said the judge’s sentencing order showed that the judge did
in fact properly consider the abuse. On another issue, the court held that the “cold,
calculated, and premeditated” aggravator did not apply, because Mr. Barwick did
not have a careful plan or prearranged design to kill the victim. The court
concluded, though, that the improper consideration of this aggravator made no
difference. The court said that “five valid aggravators remain to be weighed
against only minimal mitigating evidence,” that consideration of the improper
aggravator was harmless beyond a reasonable doubt, and that the death sentence
was not disproportionate. Barwick II, 660 So. 2d at 697.
The United States Supreme Court denied certiorari. Barwick v. Florida, 516
U.S. 1097 (1996) (“Barwick III”).
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III
Mr. Barwick filed a postconviction motion in state circuit court—the same
court that conducted the trial and imposed the sentence—and amended the motion
twice. The court held an evidentiary hearing. Among the witnesses was Dr.
Hyman Eisenstein, a mental-health expert. The court denied relief.
Mr. Barwick appealed. He also filed in the Florida Supreme Court a
separate petition for a writ of habeas corpus. Through the postconviction motion
and habeas petition, together with the direct appeal, Mr. Barwick raised all the
claims he now asserts in this federal habeas petition, as well as other claims. The
Florida Supreme Court denied relief. Barwick v. State, 88 So. 3d 85 (Fla. 2011)
(“Barwick IV”).
IV
Mr. Barwick filed this timely federal habeas petition under 28 U.S.C.
§ 2254. Mr. Barwick asserts seven claims: (1) his attorney rendered ineffective
assistance in the trial’s penalty phase by failing to adequately investigate and
present mitigating evidence; (2) his attorney rendered ineffective assistance in the
guilt phase by failing to cross-examine a witness, Suzanna Capers; (3) the state
withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), and presented false or misleading evidence in violation of Giglio v. United
States, 405 U.S. 150 (1972); (4) the prosecutor made improper arguments to the
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jury, and Mr. Barwick’s appellate attorney rendered ineffective assistance by
failing to raise this issue on appeal; (5) the trial judge improperly rejected Mr.
Barwick’s abuse as a child as a nonstatutory mitigator; (6) the prosecutor
improperly considered race in exercising peremptory challenges; and (7) the
Constitution prohibits Mr. Barwick’s execution because he is brain damaged and
mentally impaired.
V
A federal habeas court may set aside a state court’s ruling on the merits of a
petitioner’s claim only if the ruling “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or if the ruling “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A long and ever-growing line of cases
addresses these standards. See, e.g., Williams v. Taylor, 529 U.S. 362 (2000);
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117 (11th Cir. 2012). No purpose
would be served by repeating here all the analysis set out in the many cases.
VI
Mr. Barwick’s first claim is that his attorney rendered ineffective assistance
in the penalty phase. Mr. Barwick faults the attorney principally in two respects.
First, Mr. Barwick says the attorney should have called an expert like the one who
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testified at the postconviction hearing, Dr. Eisenstein. Second, Mr. Barwick says
some of the expert testimony his attorney introduced at the penalty phase was
harmful and should have been avoided.
Mr. Barwick’s attorney called in the penalty phase seven lay witnesses and
seven mental-health experts. The testimony established that Mr. Barwick endured
substantial abuse as a child and had significant mental illness. The lay witnesses
included Mr. Barwick’s sister, brother, half-sister, mother, and even his father. All
testified that the father physically abused Mr. Barwick, frequently and
substantially. A neighbor confirmed the abuse. The experts noted the abuse and
opined that Mr. Barwick suffered from significant mental illness.
Some of the testimony was mitigating. Some was less so. Evidence about
mental illness and the violence it may have caused always carries a risk of
prejudice. That was true of some of the testimony introduced during the penalty
phase. And it was true of Dr. Eisenstein’s testimony, too.
By presenting the penalty-phase testimony, Mr. Barwick’s attorney did not
render constitutionally ineffective assistance. And having offered the testimony of
seven mental-health experts, the attorney did not render ineffective assistance by
failing to find an eighth who would give a similar, but perhaps somewhat more
helpful, analysis.
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At the postconviction hearing, Dr. Eisenstein testified, as others had during
the penalty phase, that Mr. Barwick’s father was abusive. Dr. Eisenstein detailed
the abuse at some length. Perhaps responding to the sentencing court’s observation
that Mr. Barwick’s siblings suffered abuse but did not become violent criminals,
Dr. Eisenstein said Mr. Barwick suffered abuse greater than the others and
internalized the trauma the most.
Dr. Eisenstein said Mr. Barwick had brain impairment. Two of the penaltyphase experts also had said this. Dr. Eisenstein diagnosed Mr. Barwick with
intermittent explosive disorder. One of the penalty-phase experts had given this
same diagnosis. Dr. Eisenstein disagreed with penalty-phase experts who said Mr.
Barwick had antisocial personality disorder, but Dr. Eisenstein conceded that Mr.
Barwick exhibited a number of the diagnostic criteria for that disorder and that
reasonable psychologists could disagree on the issue. In any event, it is by no
means obvious that a jury or judge would assign greater mitigation effect to a
defendant’s intermittent explosive disorder than to a defendant’s antisocial
personality disorder; both can be mitigating but also can be viewed negatively.
See, e.g., Kokal v. Sec’y, Dep’t of Corr., 623 F.3d 1331, 1349 (11th Cir. 2010)
(recognizing that a jury may negatively view antisocial personality disorder); Reed
v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1248 (11th Cir. 2010) (same);
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Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009)
(same).
Dr. Eisenstein linked Mr. Barwick’s mental deficits to the victim’s murder.
Most of the penalty-phase experts had not done this, and none did it as explicitly as
Dr. Eisenstein. And Dr. Eisenstein testified to statutory mitigators, concluding that
Mr. Barwick was “functioning at an early adolescence stage” at the time of the
murder, met “the criteria for extreme mental and emotional disturbance,” and was
unable to conform his conduct to the law, “due to the Intermittent Explosive
Disorder, the brain impairment.” Evidentiary Hr’g Tr. at 3063-65 (Tab 37). Only
one of the penalty-phase experts had said Mr. Barwick was unable to conform his
conduct to the law.
Mr. Barwick argues with some force that Dr. Eisenstein’s testimony went
beyond that of the seven penalty-phase experts and was not merely cumulative.
But the testimony would not have changed the central facts. Mr. Barwick endured
substantial abuse and suffered from mental illness. The abuse and illness
contributed to this murder. Still, Mr. Barwick’s criminal history included a sexualbattery conviction, and he murdered this victim—a woman he did not know—for
his own gratification. He committed the murder in an especially cruel manner.
Even with Dr. Eisenstein’s testimony, the jury probably would have recommended
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the death sentence. And the judge still would have imposed the death sentence, as
shown by his denial of collateral relief.
A claim of ineffective assistance of counsel is governed by Strickland v.
Washington, 466 U.S. 668 (1984). To succeed, a defendant must show both
deficient performance and prejudice.
Deficient performance consists of “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687. “The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Id. at 688.
Prejudice means “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id. The test is “whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Id. at 686. When a defendant
challenges a death sentence, “the question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.” Id. at
695.
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For a claim based on failure to present mitigation evidence, the first
question is “whether counsel reasonably investigated possible mitigating factors
and made a reasonable effort to present mitigating evidence to the sentencing
court.” Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006) (citing
Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001)). A court must
“consider ‘the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding’—and ‘reweig[h] it
against the evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 41
(2009) (quoting Williams, 529 U.S. at 397-98).
An attorney’s performance is not ineffective just because the defendant is
later able to locate a mental-health expert who can testify more favorably. See
Ward v. Hall, 592 F.3d 1144, 1173 (11th Cir. 2010) (“As we have held many times
before, ‘the mere fact a defendant can find, years after the fact, a mental health
expert who will testify favorably for him does not demonstrate that trial counsel
was ineffective for failing to produce that expert at trial.’ ”) (quoting Davis v.
Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997)). And an attorney does not
render ineffective assistance just by failing to present cumulative evidence. See,
e.g., Brown v. United States, 720 F.3d 1316, 1327 (11th Cir. 2013) (rejecting an
ineffective-assistance claim when much of the newly proffered evidence was
cumulative); Ford v. Hall, 546 F.3d 1326, 1338 (11th Cir. 2008) (“Counsel is not
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required to call additional witnesses to present redundant or cumulative
evidence.”); Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1308 (11th Cir.
2005).
The application of these principles is illustrated by two Eleventh Circuit
decisions. First, in Cooper v. Secretary, Department of Corrections, 646 F.3d
1328 (11th Cir. 2011), the defendant’s mother testified in the penalty phase that the
defendant’s father emotionally abused the defendant, sometimes hit the defendant
with a belt, and abused the defendant’s mother. At the state postconviction
hearing, in contrast, the defendant presented evidence that, from infancy, the
defendant suffered horrific abuse, including being slammed into a wall, beaten,
punched, and kicked by his father, and frequently being beaten by his brother. The
Eleventh Circuit held that the trial attorney rendered ineffective assistance by
presenting in the penalty phase only a “small sliver of [the defendant’s] volatile
upbringing.” Id. at 1355.
The situation was different in Holsey v. Warden, Georgia Diagnostic Prison,
694 F.3d 1230 (11th Cir. 2012). There the evidence at the postconviction hearing
provided “more details” and “different examples” but told “largely the same
story.” Id. at 1266-67. The Eleventh Circuit held that even if the attorney’s
performance was deficient, the state court reasonably concluded that the defendant
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suffered no prejudice. The Eleventh Circuit thus denied relief. And the court
collected cases supporting the result.
Together, Cooper and Holsey indicate that a federal habeas petitioner is not
entitled to relief on this basis when “the basic story of [the petitioner’s] troubled,
abusive childhood was . . . known to the jury.” Holsey, 694 F.3d at 1266 (internal
quotation marks omitted). See also Johnson v. Sec’y, Dep’t of Corr., 643 F.3d
907, 936-37 (11th Cir. 2011) (noting that it is quite a different story when a
defendant’s parents are portrayed as “cold and uncaring” than when a defendant’s
parents are portrayed as alcoholics and violent abusers and the defendant’s home
life is described as “pure hell”).
Mr. Barwick’s attorney presented during the penalty phase the basic story of
Mr. Barwick’s troubled childhood. The attorney also presented mitigating mentalhealth evidence. The evidence allowed the attorney to argue that Mr. Barwick’s
abusive childhood and mental illness explained his behavior and should lead to a
sentence of life in prison, not death. Mr. Barwick has not shown that the attorney
rendered ineffective assistance.
In any event, Mr. Barwick has not shown prejudice. There is no “reasonable
probability that, absent the [asserted] errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695. Mr. Barwick thus is not entitled to
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relief. See Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001) (“Even
assuming arguendo ineffective assistance in the mitigating case at sentencing,
there is no reasonable probability that the balance of aggravating and mitigating
circumstances that led to the imposition of the death penalty in this case would
have been different had counsel introduced the evidence compiled and presented in
Grayson’s state habeas proceedings.”).
The Florida Supreme Court properly set out the law and concluded that Mr.
Barwick had shown neither deficient performance nor prejudice. Barwick IV, 88
So. 3d at 100. The ruling was not contrary to or an unreasonable application of
federal law or based on an unreasonable determination of the facts. Mr. Barwick is
not entitled to relief on this claim.
VII
Mr. Barwick asserts his attorney rendered ineffective assistance by failing to
challenge the testimony of Suzanna Capers. On the day of the murder, Ms. Capers
was sunbathing at the apartment complex and saw Mr. Barwick. She testified:
And I saw him a couple of times, two or three or four times and I
started getting suspicious, I never saw him come back around until
later, a little while later he was walking in front where I was straight
ahead of him and he stood there and he just kind of stared and I
thought, here I am laying out and by myself and I started getting a
little worried and he just stood there and stared at me and then he
started pointing, he pointed at me, he pointed like this, toward her
apartment where he was standing and he did it a few times, this
[g]esture (indicating) and then I started getting suspicious, really
started feeling uneasy and then he turned around and walked back
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toward her apartment and I was relieved that he wasn’t standing there
staring at me anymore . . . .
Trial Tr. at 232-33 (Tab 8). Mr. Barwick’s attorney did not cross-examine Ms.
Capers.
Mr. Barwick now says his attorney should have impeached Ms. Capers with
her allegedly inconsistent testimony at a deposition and the first trial and should
have proven that she had difficulty identifying Mr. Barwick at suggestive
photographic lineups.
During her earlier testimony, Ms. Capers did not express the same level of
concern about Mr. Barwick’s conduct, or at least did not do so as clearly. But the
gist of Ms. Capers’s testimony was generally consistent on each occasion: Mr.
Barwick stared at her, made pointing gestures, and left. More importantly, the
testimony made little difference. There was no real question about the identity of
the murderer; Mr. Barwick confessed and provided details that strongly
corroborated the confession. And Mr. Barwick’s conduct was cause for concern—
as later events made clear—regardless of whether Ms. Capers was in fact
concerned.
Failing to impeach a state witness can of course constitute ineffective
assistance. See, e.g., Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989) (finding
ineffective assistance in failing to impeach a key state witness on matters relevant
to the identity of the shooter in a murder case); Smith v. Wainwright, 799 F.2d
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1442 (11th Cir. 1986) (finding ineffective assistance in failing to impeach a key
state witness). But asking questions for no real purpose can do more harm than
good. Ms. Capers saw Mr. Barwick at the apartment complex acting strangely.
After the murder, Ms. Capers may have felt lucky to be alive. Many a good
defense attorney would have chosen not to pointedly cross-examine Ms. Capers
about inconsequential differences in her description of the events. Indeed, after a
few pointed questions, Ms. Capers might have told the jury just how she felt.
In any event, there is no basis for any suggestion that Ms. Capers’s
testimony—or the failure to cross-examine her—affected the outcome or reliability
of the trial. The Florida Supreme Court held there was no prejudice and quoted the
trial court’s analysis: “there was no issue as to the identity of the killer because
Barwick gave a taped statement admitting he killed [the victim] and describing his
actions.” Barwick, 88 So. 3d at 95.
The Florida Supreme Court’s ruling was not contrary to or an unreasonable
application of federal law or based on an unreasonable determination of the facts.
Mr. Barwick is not entitled to relief on this claim.
VIII
Mr. Barwick next says the state withheld exculpatory evidence in violation
of Brady and presented false or misleading evidence in violation of Giglio. The
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assertions deal with evidence on two subjects: the victim’s two-piece bathing suit
and Ms. Capers’s observations.
A
At trial, the state presented evidence that the victim’s bathing-suit top was
pulled down to her midriff and that her bathing-suit bottom was pulled down in the
back. This evidence provided some support for the charge of attempted sexual
battery, which in turn was a death-penalty aggravator.
After the trial, Mr. Barwick learned of two reports from the medical
examiner’s office. One described the bathing-suit bottom as “intact.” The other
said the bathing-suit bottom was “in place.” The lead prosecutor and two
investigators testified that they could not recall ever seeing the reports.
Mr. Barwick says the failure to disclose the reports violated Brady and that
an officer’s testimony that the bathing-suit bottom was pulled down in the back
was false or misleading in violation of Giglio.
The reports should have been disclosed to the defense prior to trial. But the
failure to disclose the reports plainly made no difference in the outcome of the
case.
First, the evidence establishes that the undisclosed reports—if construed as
Mr. Barwick now construes them, that is, to mean the bathing-suit bottom was not
pulled down in the back—were wrong. In fact, as credible testimony and
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photographs from the crime scene show, the bathing-suit bottom was pulled down
in the back. The state postconviction court correctly so found. A plausible reading
of the reports is fully consistent with the actual facts: “intact” meant not torn and
“in place” was an accurate description of the front of the bathing-suit bottom as
observed when the comforter was removed, before the body was rolled over. See
Evidentiary Hr’g Tr. at 3144 (Tab 37). Disclosing the reports would have allowed
the defense to make an unfounded and easily rebutted argument about the position
of the bathing-suit bottom but otherwise would not have affected the trial, the
verdict, or the sentence.
Second, even if the reports could somehow have led the jury to believe the
bathing-suit bottom was in place in both the front and back, this would not have
changed other, uncontested facts. Mr. Barwick saw the victim sunbathing,
retrieved a knife, entered her apartment, and stabbed her to death. The victim was
found with her bathing-suit top displaced, and there was semen on the comforter
she was wrapped in. This is evidence of an attempted sexual battery, regardless of
the position of the bathing-suit bottom. So the reports, even if believed and
construed as Mr. Barwick now construes them, would not likely have affected the
attempted-sexual-battery verdict and plainly would not have affected the murder
verdict.
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Third, the reports, on any view, would not have affected the death sentence.
Attempted sexual battery was only one aggravator. The defendant, whose criminal
history included a conviction for sexual battery with force likely to cause death or
great bodily harm, brutally stabbed to death a woman he did not know. This was
enough for a death sentence, with or without an attempted sexual battery.
A petitioner is entitled to relief under Brady only “if it is reasonably
probable that a different outcome would have resulted if the government had
disclosed the evidence.” Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271,
1292 (11th Cir. 2012). Even if Brady obligated the state to disclose these reports,
Mr. Barwick has not shown a reasonable probability of a different outcome. He is
not entitled to relief under Brady.
Mr. Barwick has shown no Giglio violation relating to the bathing suit. The
officer’s testimony about the position of the bathing-suit bottom was true and even
more clearly was not intentionally false or misleading. Mr. Barwick is not entitled
to relief on this Giglio claim.
B
Mr. Barwick also says Ms. Capers’s testimony at the third trial was false or
misleading and that the state knew it, thus violating Giglio. The assertion fails at
every level. There is no reason to believe the testimony was false or misleading.
There is no reason to believe the state knew the testimony was false or misleading,
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if it was. And, as set out in section VII above, any discrepancies in the testimony
made no difference in the outcome of the case.
C
In sum, the Florida Supreme Court properly rejected the Brady and Giglio
claims. The ruling was not contrary to or an unreasonable application of clearly
established federal law or based on an unreasonable determination of the facts.
Mr. Barwick is not entitled to relief on these claims.
IX
Mr. Barwick next seeks relief based on the prosecutor’s allegedly improper
closing arguments during both the guilt and penalty phases. A prosecutor’s closing
argument violates the Constitution if it renders the trial “fundamentally unfair.”
Price v. Allen, 679 F.3d 1315, 1326 (11th Cir. 2012) (quoting Romine v. Head, 253
F.3d 1349, 1366 (11th Cir. 2001)); Land v. Allen, 573 F.3d 1211, 1220 (11th Cir.
2009). Mr. Barwick says these arguments met this standard. And he says his
attorney rendered ineffective assistance by failing to challenge the arguments on
direct appeal.
A
During the guilt phase, the prosecutor argued:
[Mr. Barwick] then eyes two women who are sunbathing as if to
select his victim.
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Both of them in bathing suits, sunbathing. . . . [H]e could have
certainly picked the unoccupied dwellings to commit a burglary if he
just wanted to steal something.
. . . [W]hat did Suzann[a] Capers tell you. He stared at me and I
got this eerie feeling. It was spooky, it was strange, it was creepy.
That’s evidence you can take into consideration as to how he was
staring, selecting.
Trial Tr. at 550-51 (Tab 12).
Mr. Barwick says this argument was an improper attempt to scare the jury.
In fact, it was a proper argument from the evidence in the case. One of the charges
was attempted sexual battery. Mr. Barwick’s theory was and is that he entered the
apartment to steal, not to commit a sexual battery or commit a murder. That Mr.
Barwick stared at another sunbather in a strange manner shortly before entering the
victim’s apartment was relevant on the issue of Mr. Barwick’s intent.
This argument did not deprive Mr. Barwick of a fair trial.
B
During the penalty phase, the prosecutor argued:
I don’t want you to fall into sympathy, I can’t argue sympathy. It’s
improper. I can’t sit here and show you the photograph and say, feel
sorry for this young lady right here. But the only reason I can show
you this photograph in life and in death is for this one right down
here, which is particularly heinous, atrocious and cruel. That’s the
reason the photographs are here. That’s the reason you can look at
them. It is because of the pain that he inflicted, put upon her and the
joy that he may have gotten out of it that I can talk about or I can even
get close to these photographs or even point to these photographs or
show these photographs to you.
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Don’t get me wrong. I am not arguing sympathy but do not let
the defense attorney sway you or inflame you with any sort of
argument for sympathy.
The reason we’re here, there’s no money. It sort of falls in the
category, poor fellow. He can’t help himself, poor fellow.
Psychologists and psychiatrists can’t help him. Poor fellow. Me, the
defense lawyer, I can’t help him. Poor fellow. All boils down to
money, because that’s why we can’t cure him. It is lack of ability is
why we can’t cure him. Poor fellow. Everybody has given up on
him, poor fellow, don’t y’all give up on him.
Don’t fall into that category. Don’t fall into that sympathy.
Sympathy has no place in this courtroom. You are to follow this law.
Do these aggravating circumstances outweigh these mitigating
circumstances. And if you have any sympathy and if sympathy just
comes in there, tell yourselves, no, Mr. Paulk told me we can’t have
sympathy for that lady or that, the fact that she endured pain and she
was being tortured. We can take that into consideration but don’t fall
into that category that this man, just on the basis of sympathy,
sympathy alone that you are going to vote, to recommend to the judge
that he be sentenced to life in prison with a possibility of parole after
25 years in prison. Don’t let sympathy make you vote that way.
Trial Tr. at 933-34 (Tab 18).
Mr. Barwick says the prosecutor’s statements about inability to argue
sympathy for the victim were a backhanded way of inviting the jury to consider
sympathy for the victim. A prosecutor can of course properly point out that
sympathy for the victim is not a permissible basis for imposing the death penalty.
But this argument was perhaps too clever by half. If not to invite sympathy, why
would a prosecutor say, “I can’t sit here and show you the photograph and say, feel
sorry for this young lady right here.”?
Case No. 5:12cv159-RH
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Mr. Barwick also says the prosecutor improperly told the jurors not to
consider sympathy for Mr. Barwick. In deciding whether to recommend a death
sentence, a jury of course can consider any mitigating circumstance. A jury cannot
be instructed otherwise—not by the court, and not by the prosecutor. But this does
not mean jurors must be allowed to evaluate mitigation based on emotions or
sympathy rather than based on the evidence. See, e.g., Saffle v. Parks, 494 U.S.
484, 492-94 (1990) (dictum); California v. Brown, 479 U.S. 538, 539 (1987)
(upholding an instruction that a death-penalty jury “must not be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion or public
feeling”); id. at 545 (O’Connor, J., concurring) (“Because the individualized
assessment of the appropriateness of the death penalty is a moral inquiry into the
culpability of the defendant, and not an emotional response to the mitigating
evidence, I agree with the Court that [the instruction quoted above] does not by
itself violate the Eighth and Fourteenth Amendments to the United States
Constitution.”).
Here the court’s penalty-phase instructions said this: “[T]he sentence that
you recommend to the court must be one based upon the facts as you find them
from the evidence and the law.” Trial Tr. at 958 (Tab 20). Mr. Barwick does not
disagree with this instruction and could not reasonably do so. The instructions did
not mention sympathy.
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The prosecutor’s comments to the jury on sympathy for Mr. Barwick are
problematic at several levels. First, a jury should get any applicable instruction on
the law from the court, not from an attorney. An attorney may properly comment
on and suggest the proper application of the court’s instructions, but an attorney
has no business instructing the jury on the law in a way that goes beyond the
court’s instructions. That is in effect what the prosecutor did here. Second, when
instructions are compiled and given following the proper procedures—when each
side has an opportunity to be heard in advance and the final instructions are read to
the jury by the judge—the instructions can be delivered far more completely,
precisely, and impartially than an attorney ordinarily can manage during a closing
argument.
This does not mean, though, that this prosecutor’s comments on sympathy
for Mr. Barwick were unconstitutional. In this portion of the argument, the
prosecutor spoke with a high level of precision. He should not have taken it upon
himself to instruct the jury on the law. But it is not at all clear he misstated the
law.
For four reasons, Mr. Barwick is not entitled to relief based on the
prosecutor’s arguments addressing sympathy for the victim or for Mr. Barwick.
First, the primary thrust of this part of the prosecutor’s argument was
unobjectionable. The primary thrust was this: you may consider the nature of the
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crime and the pain inflicted on the victim, though not sympathy for the victim, and
you should not let sympathy for Mr. Barwick cause you to recommend a life
sentence.
Second, the prosecutor’s comments on sympathy for the victim could not
have made a difference. What happened to the victim happened. The jury knew
the facts and was entitled to consider them. The jury undoubtedly considered the
nature of the crime and would have done so even had the prosecutor never
mentioned the subject. And the jury’s consideration of the nature of the crime was
proper; one issue was whether the crime was heinous, atrocious, or cruel. All of
this made more academic than real any distinction between sympathy for the
victim, on the one hand, and consideration of the evidence of what happened to the
victim, on the other hand.
Third, the prosecutor’s comments on sympathy for Mr. Barwick also could
not have mattered. The jury was entitled to consider Mr. Barwick’s childhood and
mental condition and undoubtedly did so. The prosecutor did not suggest that the
jury should not consider those circumstances. Aside from those circumstances and
his age (he was 19), there was nothing very sympathetic about Mr. Barwick.
Fourth, the prosecutor’s comments on sympathy were a fleeting portion of a
much longer trial. The judge properly instructed the jury to weigh any statutory
aggravators against any mitigators and to make its death-sentence recommendation
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based on the facts as found from the evidence. There is no reason to doubt that the
jury did this precisely as it should have done.
Mr. Barwick is not entitled to relief based on this part of the closing
argument.
C
Mr. Barwick claims that his attorney rendered ineffective assistance on
appeal by failing to raise as an issue the prosecutor’s comments during both the
guilt and penalty phases. The claim fails in four respects.
First, as set out above, the prosecutor’s guilt-phase argument was proper. A
contemporaneous objection would properly have been overruled. And, as the
Florida Supreme Court made clear when it rejected this claim on collateral review,
a claim on direct appeal would have failed even had there been a contemporaneous
objection. Barwick IV, 88 So. 3d at 109-10. Mr. Barwick did not receive
ineffective assistance on this issue either at trial or on appeal.
Second, Mr. Barwick’s attorney raised the penalty-phase issue on direct
appeal, exactly as Mr. Barwick now says the attorney should have done. Mr.
Barwick’s assertion that the attorney did not raise the issue is simply wrong. The
Florida Supreme Court rejected the claim on direct appeal because there had not
been a contemporaneous objection during the closing argument. An attorney does
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not render ineffective assistance when the attorney properly presents a claim but
the court rejects it.
Third, on the merits, the prosecutor’s penalty-phase argument was more
problematic, but a contemporaneous objection probably still would have been
overruled. See, e.g., Valle v. State, 581 So. 2d 40, 47 (Fla. 1991) (“The state may
properly argue that the defense has failed to establish a mitigating factor and may
also argue that the jury should not be swayed by sympathy.”). And even had there
been a contemporaneous objection, the claim would have failed on direct appeal,
as the Florida Supreme Court made clear when it held, on collateral review, that
the argument was proper. Barwick IV, 88 So. 3d at 110.
Fourth, as set out in section VI above, a petitioner can obtain relief on an
ineffective-assistance claim only by showing both deficient performance and
prejudice. Mr. Barwick has shown neither.
D
The Florida Supreme Court’s rejection of Mr. Barwick’s claims based on the
prosecutor’s closing arguments was not contrary to or an unreasonable application
of clearly established federal law or based on an unreasonable determination of the
facts. Mr. Barwick is not entitled to relief on these claims.
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X
Mr. Barwick next claims the sentencing judge improperly rejected as a
nonstatutory mitigator Mr. Barwick’s history of abuse as a child. Under Eddings v.
Oklahoma, 455 U.S. 104 (1992), a capital sentencer must consider all mitigating
circumstances, including a history of abuse as a child. The state does not contend
otherwise.
The judge’s sentencing order said:
The evidence establishes that the defendant was abused as a child by
his father and grew up in a dysfunctional family. The evidence also
establishe[s] that the defendant’s siblings were likewise abused and
they apparently grew up to be responsible persons. Two of the
siblings had the unfortunate experience of being compelled to testify
against their brother. While there are doubtless numerous cases where
the abuse received by children influence their actions in adult life and
result in or contribute to criminal behavior[,] [t]he Court does not find
in this case that the abuse received by the defendant as a child is a
mitigating circumstance.
Sentencing Order at 1416-17 (Volume 12).
On one reading, this was an improper refusal to consider as a mitigator Mr.
Barwick’s history of abuse. But on another reading, this was only a statement that
the history of abuse was not sufficiently mitigating to outweigh the aggravators.
The sentencing order also said:
The Court has considered and weighed each of the applicable
aggravating circumstances and each of the statutory and non-statutory
mitigating circumstances that are established by the evidence or on
which there has been any significant evidence produced as they relate
to the murder charge. Further, the Court has considered whether the
Case No. 5:12cv159-RH
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established facts are such that in all fairness, taking into consideration
the totality of the defendant’s life or character are sufficient to
counter-balance the aggravating circumstances. The jury in this case
was unanimous in recommending the death penalty. The Court has
carefully considered and reviewed all of the foregoing as it relates to
the murder charge and determines that sufficient aggravating
circumstances exist to support the recommendation of the jury and
that recommendation is not counter-balanced by the mitigating
circumstances.
Id. at 1417-18.
On appeal, the Florida Supreme Court said:
We have held that a trial court must find as a mitigator each proposed
factor that is mitigating in nature and has been reasonably established
by the greater weight of the evidence. Campbell v. State, 571 So. 2d
415, 419 (Fla. 1990). We have also expressly recognized an abused
or deprived childhood as one factor that is mitigating in nature. Id. at
419 n. 4. In addition, the judge here recognized that evidence
established that Barwick was abused as a child. Consequently, this
abuse was an appropriate mitigating circumstance for the court to
consider.
Barwick II, 660 So. 2d at 696.
The Florida Supreme Court concluded that the sentencing judge had
properly considered Mr. Barwick’s abuse: “Although the trial court judge stated
that he did not consider Barwick’s history of child abuse a mitigating factor, we
find that the sentencing order indicates that the judge properly considered evidence
of abuse in imposing the death sentence.” Id.
This is a reasonable view of the sentencing order. Indeed, in context, this is
the best view of the sentencing order. An experienced judge presided over the trial
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and wrote an order specifically addressing Mr. Barwick’s history of abuse as a
child. The order said that the aggravators, which on any view were substantial,
outweighed “the mitigating circumstances.” The judge thus recognized that there
were mitigating circumstances. Those circumstances were the history of abuse and
related mental and emotional deficits. But the aggravators were more substantial,
as the jury, judge, and Florida Supreme Court all held.
The Florida Supreme Court’s rejection of this claim was not contrary to or
an unreasonable application of clearly established federal law or based on an
unreasonable determination of the facts. Mr. Barwick is not entitled to relief on
this claim.
XI
Mr. Barwick claims that the prosecutor improperly considered race in
exercising a peremptory challenge of an African American juror. If this happened,
it was a violation of clearly established federal law. See, e.g., Batson v. Kentucky,
476 U.S. 79 (1986).
The Florida Supreme Court held that this claim was procedurally barred.
Barwick II, 660 So. 2d at 690 n.10. Mr. Barwick objected when the prosecutor
exercised the challenge, but when the entire jury had been selected, Mr. Barwick
did not renew the objection or otherwise challenge the panel. Under regularly
followed Florida law, an objection to an allegedly race-based peremptory challenge
Case No. 5:12cv159-RH
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“is not preserved for appellate review if the party objecting to the challenge fails to
renew the objection before the jury is sworn.” Zack v. State, 911 So. 2d 1190,
1204 (Fla. 2005); see also Carratelli v. State, 961 So. 2d 312, 318-19 (Fla. 2007);
Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993). In his reply in this court, Mr.
Barwick seems to acknowledge this.
A petitioner may obtain relief in this court on a procedurally defaulted claim
only on a showing of cause for and prejudice from the default. See, e.g., Coleman
v. Thompson, 501 U.S. 722, 750 (1991). Mr. Barwick has shown neither.
Alternatively, the Florida Supreme Court said this claim was unfounded on
the merits because the prosecutor provided legitimate race-neutral reasons for the
peremptory challenge. One was this: the juror’s cousin was discharged from the
sheriff’s department for substance abuse. This, without more, does not warrant
striking the juror for cause, but it easily qualifies as a legitimate nondiscriminatory
reason for a peremptory strike. The Florida Supreme Court’s rejection of this
claim was not contrary to or an unreasonable application of clearly established
federal law or based on an unreasonable determination of the facts.
On both procedural grounds and the merits, Mr. Barwick is not entitled to
relief on this claim.
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XII
In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held it
unconstitutional to execute a defendant for committing a crime before age 18. Mr.
Barwick was 19 when he committed this murder. But he says his mental or
emotional age was below 18 as a result of brain damage and his father’s abuse.
The Florida Supreme Court rejected this claim, holding, as it had held
previously, that Roper turns on the defendant’s chronological age, not on the
defendant’s mental or emotional age. Barwick IV, 88 So. 3d at 106 (citing England
v. State, 940 So. 2d 389, 406-07 (Fla. 2006)); see also Hill v. State, 921 So. 2d 579,
584 (Fla. 2006) (“Roper only prohibits the execution of those defendants whose
chronological age is below eighteen.”).
The United States Supreme Court has not extended Roper to mental or
emotional age. The Florida Supreme Court’s rejection of Mr. Barwick’s claim
thus was not contrary to “clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). See Dombrowski v.
Mingo, 543 F.3d 1270, 1274 (11th Cir. 2008) (holding that a state decision on an
issue cannot be contrary to federal law under § 2254(d)(1) if there is no Supreme
Court decision on point).
The Florida Supreme Court’s rejection of Mr. Barwick’s claim also was not
an unreasonable application of Roper. In Roper, the United States Supreme Court
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drew a bright line—age 18. The Court squarely held that executing a defendant for
committing a crime before age 18 is always unconstitutional, no matter how
mature the defendant. A reasonable application of Roper is that the bright line
works the other way, too—executing an individual for committing a crime after
age 18 is not, just because of age, unconstitutional. Mental or emotional age may
be a mitigating factor, but it does not necessarily preclude the death penalty.
Because the Florida Supreme Court’s rejection of this claim was not
contrary to or an unreasonable application of clearly established federal law, Mr.
Barwick is not entitled to relief.
XIII
A district court must “issue or deny a certificate of appealability when it
enters a final order adverse to” a § 2254 petitioner. Rule 11(a) of the Rules
Governing § 2254 Cases in the U.S. Dist. Ct. A certificate of appealability may be
issued only if a petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S.
322, 335-38 (2003) (explaining the meaning of “substantial showing”); Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000) (same); see also Williams, 529 U.S. at
402-13 (setting out the standards applicable to a § 2254 petition on the merits). As
the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
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demonstration that, under Barefoot, includes showing that reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the
issues presented were “adequate to deserve encouragement to proceed
further.”
Slack, 529 U.S. at 483-84 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Mr. Barwick has made the required showing on only a single issue: whether
his attorney rendered ineffective assistance related to mitigation evidence during
the penalty phase. This order grants a certificate of appealability on that issue. To
ensure that Mr. Barwick has an opportunity to be heard on the certificate-ofappealability issue, he may—but need not—move to reconsider the denial of a
certificate on any other issue.
XIV
The Florida Supreme Court’s rejection of Mr. Barwick’s claims was not
contrary to or an unreasonable application of federal law or based on an
unreasonable determination of the facts in light of the evidence presented in state
court. Mr. Barwick is not entitled to relief. Accordingly,
IT IS ORDERED:
1. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
Case No. 5:12cv159-RH
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2. A certificate of appealability is GRANTED on this issue: whether Mr.
Barwick’s attorney rendered ineffective assistance related to mitigation evidence
during the penalty phase. A certificate of appealability is denied on any other
issue.
3. The clerk must close the file.
SO ORDERED on March 19, 2014.
s/Robert L. Hinkle
United States District Judge
Case No. 5:12cv159-RH
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