FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 13 , 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11421

________________________

D.C. Docket No. 05-00265-CV-ACC-GJK

DARIUS MARK KIMBROUGH,

Petitioner-Appellant,

versus

SECRETARY, DOC,

FL ATTORNEY GENERAL,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 13, 2009)

Before: EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
Darius Mark Kimbrough appeals the denial of his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. We granted Kimbrough’s request for a

certificate of appealability on the issue of whether the Florida Supreme Court’s

determination – that it was a reasonable trial tactic for petitioner’s trial counsel not

to present mental health mitigation testimony and evidence at Kimbrough’s penalty

phase – is contrary to or an unreasonable application of clearly established United

States Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d).

I. Background

Kimbrough was convicted of first-degree murder, burglary of a dwelling with

a battery therein, and sexual battery with great force. The facts pertinent to

Kimbrough’s crimes of conviction are recounted in the Florida Supreme Court’s

opinion on direct appeal. Kimbrough v. State, 700 So. 2d 634, 635-36 (Fla. 1997).

The Florida Supreme Court summarized the trial court’s penalty phase findings as

follows:

In the sentencing order, the judge listed three aggravators: prior violent

felony, committed during the course of a felony, and heinous,

atrocious, or cruel (HAC). To support the prior violent felony

aggravator, the judge cited Kimbrough’s prior convictions for both

burglary of a dwelling with battery therein and sexual battery. The

court found that the murder here was committed during sexual battery

or attempt to commit sexual battery, citing DNA evidence and

bruising, as well as evidence that the victim and defendant did not

know each other. HAC was supported by the size of the victim, the

three blows to her head causing fracture by blunt force, evidence of a

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struggle (the room was in disarray), and the amount of blood found

around the room.

The judge considered age as a statutory mitigator (Kimbrough was

nineteen), but rejected it because there was no evidence establishing

that he was immature or impaired. The court considered the following

nonstatutory mitigation: Kimbrough had an unstable childhood,

maternal deprivation, an alcoholic father, a dysfunctional family, and a

talent for singing. The court found that the mitigation did not temper

the aggravators.

Id. at 636.

Kimbrough was subsequently sentenced to death consistent with the jury’s

vote of eleven to one recommending imposition of the death penalty. Kimbrough

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unsuccessfully appealed his conviction and sentence of death to the Florida

Supreme Court, id., and the United States Supreme Court denied certiorari,

Kimbrough v. Florida, 523 U.S. 1028 (1998).

Kimbrough filed a motion for post-conviction relief under Florida Rule of

Criminal Procedure 3.850, raising numerous claims regarding ineffective assistance

of counsel, the constitutionality of Florida’s death penalty, and the right to a fair

and impartial jury. See Kimbrough v. State, 886 So. 2d 965, 969 n.2. (Fla. 2004).

The state trial court held a hearing pursuant to Huff v. State, 622 So. 2d 982 (Fla.

 A different jury was empaneled for Kimbrough’s sentencing because three of the jurors

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from Kimbrough’s guilt phase read newspaper articles about the case after the conclusion of the

trial. 

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1993), and granted an evidentiary hearing on three of Kimbrough’s claims,

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including his claim that he received ineffective assistance of counsel to the extent

that his trial counsel did not provide a competent mental health professional to

evaluate him. Id. at 970. After the evidentiary hearing, the state trial court denied

Kimbrough relief on all of his claims brought pursuant to Rule 3.850, which the

Florida Supreme Court affirmed on appeal. Id. at 984. The Florida Supreme Court

also denied Kimbrough’s petition for a writ of habeas corpus. Id.

Kimbrough then filed the instant federal habeas corpus proceeding, which

was denied in its entirety by the district court in Kimbrough v. Crosby, 2008 WL

544867 (M.D. Fla. Feb 26, 2008). We granted Kimbrough’s renewed application

for a certificate of appealability as to the issue of whether the Florida Supreme

Court’s determination that Kimbrough did not receive ineffective assistance of

counsel because his trial counsel failed to present any mental health evidence in the

penalty phase of his trial was contrary to or an unreasonable application of Supreme

Court precedent.

II. Standard of Review

Our review of Kimbrough’s final state habeas petition is governed by the

 In Huff the Florida Supreme Court held that in state death penalty post-conviction 2

proceedings, the court must allow the defendant’s attorney the opportunity to appear before the

court “for the purpose of determining whether an evidentiary hearing is required and to hear

legal argument relating to the motion.” 622 So. 2d at 983. 

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standards set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996. For any claim adjudicated on the merits in

state court, § 2254(d) allows federal habeas relief only where the state court

adjudication “(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). Because the state court adjudicated

Kimbrough’s claim of ineffective assistance of counsel on the merits, we review

whether that decision was “contrary to” or “an unreasonable application” of federal

law.

A decision “contrary to” federal law contradicts the United States Supreme

Court on a settled question of law or holds differently than did that Court on a set of

materially indistinguishable facts – in short, it is a decision “substantially different

from the [Supreme Court’s] relevant precedent . . . .” Williams v. Taylor, 529 U.S.

362, 405 (2000). A decision that unreasonably applies federal law identifies the

correct governing legal principle as articulated by the United States Supreme Court,

but unreasonably applies that principle to the facts of the petitioner’s case,

“unreasonably extends [the] principle . . . to a new context where it should not

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apply, or unreasonably refuses to extend [it] to a new context where it should

apply.” Id. at 407.

III. Discussion

In this habeas petition, Kimbrough challenges the Florida Supreme Court’s

conclusion that his trial counsel, Patricia Cashman and Kelly Sims, were not

ineffective, but rather made a reasonable strategic decision when deciding not to

present testimony from any mental health professional at the penalty phase of

Kimbrough’s trial. The Florida Supreme Court extensively described the testimony

that was presented at Kimbrough’s state post-conviction evidentiary hearing on this

issue:

Kimbrough was represented at trial by two attorneys, Patricia Cashman

and Kelly Sims. Both Sims and Cashman are very experienced in

capital cases. Cashman testified that Dr. Eric Mings, a forensic

criminal psychologist, was retained to conduct a psychological

evaluation of Kimbrough and was originally listed as a defense

witness. On February 11, 1994, prior to trial, Cashman filed a notice

striking Mings from the witness list. Mings was removed from the list

quickly so that the State could not depose him. Although she could not

recall all of the reasons she had for striking Mings from the witness

list, she stated that one of the reasons she struck Mings was because of

the things Mings said about Kimbrough being a “psychopathic

deviant” and the fact that she thought such testimony would hurt him

in front of the jury. Cashman testified that the decision not to call

Mings was a joint decision, made by her and Sims, and stated that

before making such a decision she would have asked Mings whether

he thought he could be helpful as a witness.

At the hearing, Cashman reviewed a note she wrote while preparing for

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the Kimbrough trial. The note reflected that Kimbrough denied having

any problems, had relatives in Tennessee, was raised by his stepfather,

and had no history of abuse. The “worst thing that happened to him”

was that his cousin was killed at the age of sixteen. Kimbrough won

talent show trophies for singing and had an intelligence quotient (IQ)

of seventy-six, which was in the fifth percentile on the Wechsler Adult

Intelligence Scale test (WAIS). He had an MMPI (Minnesota

Multiphasic Personality Inventory) which was valid, but defensive.

The note also stated that there was a spike on “scale four, psychopathic

deviant endorsing items consistent with family discord, other scales

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normal.” She did not recall what exactly Mings told her about the

psychopathic deviate scale.

Cashman had defended a number of cases prosecuted by Jeff Ashton,

the prosecutor in this case, and was familiar with him and his trial

tactics. She stated that Ashton liked to use a spike on scale four of the

MMPI “[t]o make my client look really dangerous and make the jury

scared of him and want to kill him.”

In addition to Mings, Cashman retained Dr. Robert Berland, a forensic

psychologist, to conduct a pretrial evaluation of Kimbrough. Cashman

apparently retained Berland in an attempt to find an expert who might

be more favorable to Kimbrough for mental health mitigation

purposes. Although Berland thought there were mental health issues

which could have been presented at the penalty phase, he thought they

would be difficult to present to the jury. Cashman chose not to put

Berland on the stand because she thought he would testify that

Kimbrough had “hidden craziness.” She was concerned that the

prosecution would portray Kimbrough as faking mental illness and

noted that Berland’s intelligence testing, which gave Kimbrough an IQ

of ninety-four, placed him in the normal range of intelligence.

Cashman was aware that the cutoff for mental retardation was seventy

 Cashman’s use of the term ‘psychopathic deviant’ in the note was presumably a 3

reference to a spike on the ‘psychopathic deviate scale,’ in the MMPI. The Florida State Court

acknowledged that Cashman confused the name of the scale with an actual diagnosis that

Kimbrough was a psychopathic deviant. Kimbrough, 886 So. 2d at 971 n.6. 

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and that seventy-six reflected a low IQ.

Cashman testified that she always ensured the mental health experts

she retained had adequate background information on her clients. She

recalled that Kimbrough’s family members were not particularly

cooperative in this case.

Kelly Sims, Cashman’s cocounsel, was certain that he had telephone

conversations with Mings prior to the time Cashman wrote the note

that was found in Kimbrough’s file. Sims stated that his practice at the

time was not to write notes that could prove harmful to his client

because he thought they could fall into the wrong hands. Although he

said Cashman was better at taking notes than he was, “she was

specifically never going to put anything down that may hurt her

client.” Sims explained any absence of notes from Cashman is

evidence “that something bad happened because she is a prolific

note-taker.” He did not recall any specific reasons for striking Mings

from the witness list but said, “[I] know we must have talked about it

and I was in agreement with it.” Sims further stated that if he had

thought striking Mings was a mistake, he would have relisted him.

Sims testified that he thought Berland was retained as a second opinion

to try to develop some mental health issues. He did not recall whether

retaining Berland was his idea or Cashman’s. Sims testified that there

was nothing in the public defender file that would tell him why

Berland was not used but stated that the decision would have been

made based on what Berland was going to testify to at trial.

With regard to waiving potential mental health mitigation, Sims

testified that while others may have had input on the decision,

ultimately it was his choice and his decision. He did not remember

discussing with Kimbrough the decision not to present mental health

mitigation. Sims testified that he did not want any record discussion of

the issue and said, “I just did not want to bury any hope for Mark

Kimbrough later down the line. And I think that’s what Ashton was

trying to do. And that’s not my job to help clean up the State’s case.”

Sims stated: “I know that in my relationship with Mr. Kimbrough I had

laid out everything that we did and talked about the pros and cons of it

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and thought I would make some coherent cohesive argument about

why we had to do A, B, or C and spent hours talking about it.” But,

Sims thought he did not have a very good level of communication with

Kimbrough. When asked about the theme of any mitigation defense,

Sims stated:

I recall that the theme was thread bare, that the main theme was that it

didn’t seem Mark had all that high of an IQ with respect to just dealing

with figuring out problems in his life.

It seemed like he had a lot of people that loved him and a lot of family

that embraced him and that kind of can be contra to finding good

mitigation going because people were kind of, I mean, his family

wanted him and wanted to help him and I guess there was a little bit of,

back when he was a teen, I can recall that some of the family members

saying we wanted him to live with us and they said, no, we want him

to live with us.

I know he was a skilled singer.

He had gifts to share in that field.

But as far as being able to show physical abuse or sexual abuse and

some kind of brain injury or organic brain dysfunction, I don’t recall us

having any of that.

Sims thought that a low IQ was a potential mitigator but noted that

there are plenty of inmates on death row who have been found to have

IQs similar to Kimbrough’s. Moreover, Sims stated that part of his

argument during the guilt phase was that Kimbrough would have been

really dumb to rape and murder a girl in his own apartment complex, to

let another person see him with a ladder, and to then watch the next

morning while all of the crime scene investigators and detectives were

there. Sims worried that if they presented the low IQ evidence, it might

have led the jury to think, “Well, he might be a dope, so he would do

something that would [make it] easy to catch him.”

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Testimony of Prosecutor

The State called Jeffrey Ashton, the prosecutor at Kimbrough’s trial.

Ashton was familiar with Cashman and Sims. Ashton testified that an

elevation on scale four, psychopathic deviate, was the one he hoped for

on an MMPI. He stated: “It is the one which, just by its name, is most

appealing to a prosecutor. Because, when you can argue to a jury that

this man has a high psychopathic deviant [sic] scale, just those words

alone are a wonderful argument for a jury.” The words alone have a

negative connotation. Ashton further stated:

[M]y experience generally is that when you ask for a

definition of what does psychopathic mean, the definition

you get is one of someone, you know, who lacks a

well-developed conscience, you know, does not feel

remorse, guilt, things of that general way. So it’s

something that it’s hard to spin that as positive or

sympathetic in my experience.

Ashton stated that if he had known a scale four would come up, he

would have used experts to characterize Kimbrough as dangerous. He

would have gone into the characteristics of psychopathy, would have

quoted some of the “less favorable descriptions of psychopaths,” and

would have equated psychopathy to antisocial personality disorder. He

also stated he would have questioned expert witnesses about their

knowledge of Kimbrough’s prior criminal acts, both charged and

uncharged, and would have asked about previous known acts of

violence.

As to a potential “remorse” mitigator, Ashton testified that

“[e]xpressions of remorse, when you’re in jail, after you’ve been

caught and convicted, you know, are risk for argument of the

insincerity of the supposed remorse.” He further noted that the remorse

argument opens the door to testimony as to the actions or conduct of

the defendant that are inconsistent with remorse. Questions of

character and the like generally open the door to questions about the

full range of the defendant’s possible misconduct. In this case, it might

have opened the door for evidence that Kimbrough had previously

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been involved in a gang fight.

. . .

Testimony of Mental Health Experts

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Mings testified that a spike on scale four, psychopathic deviate, is not a

formal DSM diagnosis. He could not recall diagnosing Kimbrough

with antisocial personality disorder, but it was possible that he

discussed antisocial personality with Cashman as a possible diagnosis

for Kimbrough. He stated that scale four of the MMPI measures traits

which are found in persons with antisocial personality disorder but

noted that such traits can also be found in normal people. Mings spent

about eight hours with Kimbrough in testing and then another seven

hours or so scoring the tests, reviewing background materials, and

talking to attorneys. He requested an additional five hours for

background material, and while he had no clear recollection, his

impression was that he did not get much from Kimbrough and wanted

to talk to other people to find out more details.

Dr. Bill Mosman, a forensic psychologist and practicing attorney from

the Miami, Florida, area, testified regarding potential statutory and

nonstatutory mitigators which were not introduced at trial. Mosman

reviewed various materials provided by Berland, reviewed the work of

Dr. Sidney Merin, the State’s mental health expert, reviewed the

sentencing transcript, reviewed school records, and had conversations

with Berland. Mosman did not personally examine Kimbrough prior to

testifying and did not administer any tests to Kimbrough. He reviewed

the defense investigator’s file and recognized that Pizarroz “did

voluminous amounts of work.” From his review of the materials,

Mosman thought that “from a statutory point of view, there were 5

statutory mitigators that were available and well reasonably could have

been argued. From a hyper technical point of view there were three,

but two of those are disjunctive.” As to the potential statutory

mitigators, Mosman stated:

 The testimony of these experts was presented at the state post-conviction evidentiary

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hearing.

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They are a felony was committed while under the

influence of extreme mental disturbance, felony

committed while under the influence of extreme

emotional disturbance, and mental is different than

emotionally, capacity to appreciate the criminality of his

conduct was substantially impaired, capacity to conform

his conduct to the requirements of law was substantially

impaired.

Age of the defendant at the time of the crime clearly,

clearly, multiple severe impairments in that area, these are

the statutory ones.

Mosman testified that his review of the record and applicable case law

revealed some thirty nonstatutory mitigators that could have been

argued to the jury.

. . .

In rebuttal, the State called Dr. Sidney Merin, a psychologist

specializing in clinical psychology and neuropsychology. Merin

conducted a court-ordered neurological and psychological examination

of Kimbrough. He also reviewed background materials relating to

Kimbrough and the criminal proceedings against him. Merin

interviewed and tested Kimbrough for just over six hours. He

administered an IQ test and testified that Kimbrough had a full scale

IQ of eighty-one, which is in the low average range. Merin thought that

Kimbrough had a learning disability and that his “fund of information”

was low. Merin also administered other tests which placed Kimbrough

in the lower end of the average range. Merin stated: “I would conclude

that he’s probably in the low average range overall.”

Merin testified that tests performed on Kimbrough revealed a

statistically significant elevation in the psychopathic deviate scale. As

to the significance of this result, Merin stated:

What you’re more likely to say is this represents a

significant degree of real rebelliousness in the personality,

a significant degree of superficiality, an inclination not to

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become deeply, emotionally involved with others,

although on the surface they can appear very nice. They

make a good first impression. And after you talk with

them a while, you begin to see what they’re saying

doesn’t fit together, doesn’t seem to-it’s not that it doesn’t

make sense, but it seems to be selfserving. Also found

with people who have conflict with authority, who are

manipulative, who are confidence people, who can act

impulsively, who can defy the rules, who can be

insensitive to the feelings of others, have a lot of difficulty

with empathy. These are people who sometimes have a

history of being under-achievers. Or, again, they may be

impulsive, may have a tendency to blame their family for

whatever occurs to them or blame other people for

whatever occurs to them, although projection on this scale

is not necessarily a prominent feature.

Merin testified that based on the results of all the tests he administered,

he did not find that Kimbrough suffered from a serious emotional or

mental disorder. . . .

Merin testified that he would not have found any statutory mitigating

circumstances in this case. As a single nonstatutory mitigator, Merin

might have found a borderline personality disorder which had its

underpinnings possibly in Kimbrough’s unstable early childhood. He

noted, “that’s a rather mild non-statutory.” Merin did not find any

evidence that Kimbrough suffered from an extreme mental or

emotional disturbance at the time of the crimes and did not find any

evidence that Kimbrough’s capacity to appreciate the criminality of his

conduct at the time of the crime was substantially impaired.

. . .

Kimbrough, 886 So. 2d at 969-978. (original footnotes omitted).

Based on its review of the evidence presented at the Rule 3.850 postconviction hearing, the Florida Supreme Court agreed with the trial court that

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Cashman and Sims’s decision not to present any testimony from Dr. Mings or Dr.

Berland during the penalty phase was a reasonable trial tactic. Id. at 980. In

addition, the Florida Supreme Court concluded that Kimbrough failed to meet his

burden in showing that his trial counsel did not provide sufficient background

material to Dr. Mings and Dr. Berland. Id. at 981. Nor did Kimbrough meet his

burden in presenting evidence to support the existence of possible mitigation

evidence suggested by Kimbrough’s expert, Dr. Mosman. Id.

Ineffective assistance of counsel claims are governed by the standard set forth

by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). “An

ineffective assistance claim has two components: A petitioner must show that

counsel’s performance was deficient, and that the deficiency prejudiced the

defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S.

at 687). A defendant has the burden of establishing deficient performance by

showing that “counsel’s representation ‘fell below an objective standard of

reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). The Supreme Court has

not articulated specific guidelines for appropriate attorney conduct, but rather

instructs that the standard is one of “reasonableness under prevailing professional

norms.” Id. As to claims of ineffective assistance of counsel at the penalty phase of

the trial, “we consider whether counsel reasonably investigated possible mitigating

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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).

We have previously explained that a state court’s determination that a

decision of counsel is “tactical” is a question of fact that we review under a clear

and convincing evidence standard. Gaskin v. Sec’y, Dept. of Corrections, 494 F.3d

997, 1003 (11th Cir. 2007). Moreover, the decision that counsel’s tactical decision

was reasonable, as the Florida Supreme Court concluded in this case, is a question

of law we review de novo. Lawhorn v. Allen, 519 F.3d 1272, 1295 (11th Cir.

2008).

After thorough review of the Florida Supreme Court’s decision and the

evidentiary record in this case, we cannot say that it was contrary to or an

unreasonable application of Supreme Court precedent for the Florida Supreme

Court to conclude that Kimbrough’s trial counsel made a reasonable strategic

decision when deciding not to present mental health evidence at the penalty phase

of Kimbrough’s trial. From what Sims and Cashman recalled, they specifically and

deliberately chose not to have either Dr. Mings or Dr. Berland testify at

Kimbrough’s penalty phase out of a concern that the limited beneficial information

they might have been able to present would have been outweighed by the risk of

opening the door to the admission of more damaging information. Although

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Cashman apparently misunderstood the significance of Dr. Mings’s explanation of

the psychopathic deviate scale as it related to Kimbrough, the state prosecutor

confirmed that he would have used the spike on this scale to convince the jury that

Kimbrough was dangerous. Cashman, who was familiar with the prosecutor at the

time of the trial, testified she was concerned this would happen. Moreover, Sims

testified that he did not recall that they had any evidence of physical or sexual abuse

nor any evidence of brain injury or organic brain dysfunction that they could have

presented. He also testified that the presentation of Kimbrough’s low IQ in

mitigation would have been counterproductive to his guilt phase argument that

Kimbrough did not commit the crime because he would have been “really dumb” to

rape and murder someone in his own apartment complex and then stand around the

next day watching when law enforcement officials investigated the crime scene.

See e.g., Stevens v. Zant, 968 F.2d 1076, 1083 (11th Cir. 1992) (concluding that

trial counsel was not unreasonable in deciding not to present mental health

testimony at sentencing where counsel believed the potential harm from crossexamination outweighed any benefits of the expert’s testimony). Because

Kimbrough has not shown that his trial counsel’s performance was deficient, we

need not address whether such performance prejudiced him.

Accordingly, we find no error in the district court’s dismissal of Kimbrough’s

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petition for a writ of habeas corpus.

AFFIRMED.

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