[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11589

____________________

DONALD E DEARDORFF, 

Petitioner-Appellant,

versus

WARDEN, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:17-cv-00450-JB-MU

____________________

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2 Opinion of the Court 23-11589

Before JILL PRYOR, BRANCH, and ABUDU, Circuit Judges.

PER CURIAM:

Donald Deardorff is an Alabama death-row inmate whom a 

jury found guilty of, among other charges, three counts of capital 

murder for the death of his commercial landlord, Ted Turner. Following a direct appeal and state postconviction proceedings, 

Deardorff filed a counseled 28 U.S.C. § 2254 habeas corpus petition, 

in which he argued that his trial counsel provided ineffective assistance. The district court granted Deardorff a certificate of appealability (“COA”) on the issue of whether his counsel rendered ineffective assistance during the penalty phase of his trial by failing to 

locate and present mitigation evidence and failing to prepare the 

witnesses called. This Court subsequently expanded the COA to 

include the issue of whether Deardorff’s trial counsel was ineffective for failing to object, on Confrontation Clause grounds, to the 

admission of statements contained in the codicil of Turner’s will

during the guilt phase of his trial. After thorough review, and with 

the benefit of oral argument, we affirm the district court’s denial of 

habeas relief. 

I. FACTUAL BACKGROUND

In March 2000, a state grand jury indicted Deardorff on 23 

counts, including counts of capital murder for Turner’s death. 

Deardorff’s trial began in September 2001, and the facts established 

at trial, as recited by the Alabama Court of Criminal Appeals 

(“ACCA”) from Deardorff’s direct appeal, are as follows. 

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Turner was a local minister, businessman, and father who 

leased a storage warehouse to Deardorff and his girlfriend, Christy 

Andrews, in 1998. Deardorff v. State, 6 So. 3d 1205, 1211 (Ala. Crim. 

App. 2004) (“Deardorff I”), aff’d sub nom. Ex parte Deardorff, 6 So. 3d 

1235 (Ala. 2008) (“Deardorff II”). At some point, Deardorff stopped 

making rent payments for the warehouse, and Turner pursued legal action against him. Id. Deardorff and Andrews were evicted 

and had a default judgment entered against them for a little over 

$3,000. Id.

During this time, Turner reaffirmed a will he had recently 

executed in preparation for a trip abroad. Id. In his reaffirmation, 

found on his kitchen table following his disappearance, Turner in 

red ink wrote the following: “Reaffirmed 7/27/99 just in case Don 

Deardorff is really crazy.” Id.

According to Deardorff’s codefendant, Millard Peacock, 

Deardorff was very angry with Turner for initiating legal action 

against him. Id. Peacock testified that Deardorff said he planned 

to rob Turner to “get even” and that he wanted to kill Turner. Id. 

In September 1999, Deardorff and Peacock entered Turner’s home 

and waited for his arrival. Id. When Turner returned home, 

Deardorff threatened him with a handgun, and he and Peacock 

bound Turner’s hands with duct tape and placed him in a closet. 

Id. at 1211-12. Deardorff left Turner’s home for the evening while 

Peacock stayed behind, letting Turner out of the closet to use the 

restroom, and ultimately untying his hands. Id. at 1212. 

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When Deardorff returned to Turner’s home the next day, 

Deardorff forced Turner to write a personal check for $4,000. Id. 

Peacock then drove Turner’s car to a local bank to cash the check 

for Deardorff. Id. When Peacock returned to Turner’s home, he 

witnessed Deardorff force Turner to write out four more checks 

for a total of almost $18,000. Id. Peacock again went to a bank to 

cash the checks, but the bank refused, prompting Peacock to deposit the money in his bank account instead. Id.

Peacock returned to Turner’s home and informed Deardorff 

he could not cash the additional checks. Id. The two remained in 

Turner’s home for the rest of the day, where they watched television and ordered food with Turner’s money. Id. Deardorff also 

used Turner’s money to order car parts online and visit many pornographic websites. Id. Turner remained in the closet the entire 

time. Id.

The following day, Deardorff informed Turner that they 

were taking him to a park to leave him on a park bench, and once 

they left, Turner would be able to call for help. Id. Deardorff and 

Peacock duct-taped Turner’s hands and mouth and taped a pillowcase over his head. Id. Deardorff then drove himself, Turner, and 

Peacock to a logging road. Id. Deardorff and Peacock removed 

Turner from the car and walked him to the end of the logging 

road, then Deardorff took Turner deeper into the woods where he 

forced Turner to kneel on the ground. Id. at 1212-13. Deardorff 

shot Turner in the head four times, killing him. Id. at 1213. 

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After a few days on the run together, Peacock and Deardorff 

split up Turner’s money that Peacock had previously deposited into

his account, and they parted ways. Id. Deardorff was ultimately 

apprehended during a traffic stop. Id. A search of the vehicle 

Deardorff was in produced $18,900 in cash, pornographic videotapes, and paperwork related to Internet orders for automobile 

parts placed in Turner’s name with his credit cards.1 Id. 

Upon Deardorff’s arrival at the police station, Deardorff 

overheard officers talking about the money and weapon found in 

the vehicle, and Deardorff stated, “the gig is up.” Id. When officers 

questioned him about that statement, Deardorff said, “[T]ake the 

death penalty off the table and I’ll tell you.” Id. at 1214 (alteration 

in original). Ultimately, Deardorff placed the blame on Peacock. 

Id. A few days later, officers arrested Peacock, who placed the 

blame on Deardorff and agreed to fully cooperate in the investigation, and Peacock later led officers to Turner’s remains. Id.

Thereafter, Andrews consented to a search of her and 

Deardorff’s storage unit. Id. Inside, officers found items taken 

from Turner’s home, including a roll of duct tape that had been 

forensically matched to the duct tape used to bind Turner, a pair of 

Turner’s binoculars, and two cameras Turner’s neighbors had recently loaned to him. Id.

1 The police search also uncovered a .38 caliber handgun, which was the same 

type of gun used to kill Turner. However, the weapon found during the vehicle search was excluded as the murder weapon.

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Trial evidence also showed the following. Regarding 

Turner’s will, during opening statements, the state explained to the 

jury that Turner wrote a will before his death which included a notation about Deardorff, stating, “[j]ust in case he is as crazy as I 

think.” During trial, the state referenced this will many times. 

First, one of Turner’s friends testified that she had witnessed 

Turner create the will, and she did not recognize the red writing at 

the bottom of the will, although she recognized that the writing 

matched Turner’s handwriting. The will was then placed into evidence without objection from Deardorff’s attorney. The state produced an enlarged version of the will as a demonstrative aid for the 

jury, which was also introduced into evidence without objection. 

Next, Turner’s daughter testified about Turner’s will. She 

stated that, after realizing her father was missing, she entered his 

home and discovered the will on the kitchen table. The will worried her, specifically, the red writing at the bottom of the will that 

stated Turner was reaffirming his will “just in case Don Deardorff 

was crazy.” She stated that she turned the will over to the police. 

Turner’s son-in-law also testified about Turner’s will, explaining 

that it made him suspect Deardorff as someone who may have had 

something to do with Turner’s disappearance. 

Finally, Federal Bureau of Investigation Special Agent 

Thomas Montgomery (“Agent Montgomery”) testified about 

Turner’s will. He stated that he learned about Turner’s will while, 

after receiving information from Turner’s daughter, he assisted in 

the investigation of Turner’s disappearance. Turner’s daughter 

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informed Agent Montgomery about a boyfriend-girlfriend duo her 

father had to evict from a warehouse, but she did not know their 

names. Then she provided Agent Montgomery with Turner’s will, 

which “identified that [Turner] apparently was concerned” about 

Deardorff. With this information, law enforcement began further 

investigations. In later re-direct examinations, Agent Montgomery 

explained the significance of Turner’s writing on his will, noting 

that the writing was dated around the same time that Turner sued 

Deardorff. He explained that the lawsuit demonstrated that there 

could have been “an issue that had occurred or an occurrence between” Deardorff and Turner, which was a “potential source of 

conflict or a reason one might have a grudge against the other.” He 

stated that Turner’s writings further indicated that Turner had 

“concern” toward Deardorff. At no point during any witnesses’ 

testimony about the will did Deardorff’s counsel object. 

Following the presentation of evidence from both parties, 

the state gave its closing argument. The state referenced Turner’s 

will, stating the following: 

Early in the case, Deardorff surfaced. And it didn’t 

surface from some snitch. It didn’t surface from 

some drug dealer in Miami, Florida. It didn’t surface 

from some thug out in the county, or it didn’t surface 

from some witness [the prosecutor] generated. It surfaced from Ted Turner. He named the man he 

thought might do evil to him. And I submit to you 

that’s what he has left in his will and why he left it. 

“Just in case Donald Deardorff is as crazy as I think he 

is.” That’s a message. That’s the man I fear. It was 

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so significant to him that he put it down. And, ladies 

and gentlemen of the jury, he didn’t just put it down, 

he wrote it in red. You can’t miss it. It’s designed so 

you can’t miss it.

In his closing arguments, Deardorff asserted to the jury that 

Peacock was the individual responsible for killing Turner, not himself. Deardorff made clear that his defense hinged on discrediting 

Peacock’s statements to police and directing the jury to consider 

Peacock as Turner’s sole killer. The trial court then charged the 

jury, explaining that the jury should base the verdict “solely on the 

evidence in this case which comes from witnesses’ testimony and 

any exhibits that are admitted into evidence,” and not “arguments 

of the lawyers.” Deardorff did not request, nor did the trial court 

give, a limiting instruction about the considerations of Turner’s 

will. Ultimately, the jury found Deardorff guilty of three counts of 

capital murder.2

 

Following the verdict, the parties entered the penalty phase 

of trial. The state did not present any additional evidence during 

the penalty phase, resting on the evidence it presented at trial to 

establish aggravating circumstances. It argued to the jury that the 

2 The jury also found Deardorff guilty of six counts of first-degree theft, one 

count of theft in the second degree, and one count of receiving stolen property 

in the second degree. The ACCA vacated Deardorff’s convictions and sentences for the theft counts, holding that the convictions violated Deardorff’s 

double jeopardy rights. Deardorff I, 6 So. 3d at 1215, 1234. Thus, the ACCA 

remanded the case to the trial court for the limited purpose of vacating those 

convictions and sentences, but it kept Deardorff’s death sentence intact. Id.

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following aggravating circumstances existed: (1) the capital offense 

was committed while Deardorff was engaged in, or an accomplice 

in, the commission of, or an attempt to commit, a robbery, kidnapping, or burglary; and (2) the capital offense was especially heinous, 

atrocious, or cruel compared to other capital offenses. 

In mitigation, Deardorff submitted two witnesses—his 

mother and himself. His mother testified that Deardorff grew up 

as a “normal boy,” until he entered the military, where she believed 

his personality changed. She stated her belief that Deardorff was 

innocent and that he was capable of loving and caring for others. 

Deardorff testified through narrative format, reiterating that he 

was innocent of all charges. 

Following deliberations, the jury voted 10-2 in favor of imposing the death penalty. The trial court found the two aggravating 

circumstances put forth by the state existed. It also found that no 

statutory mitigating circumstances existed, but it noted that it had 

considered the non-statutory mitigating circumstances presented 

by Deardorff and his mother. Ultimately, the trial court ruled that, 

in consideration of all the circumstances, the evidence was sufficient to uphold the jury’s death penalty recommendation, and it 

sentenced Deardorff to death on the three counts of capital murder.

II. PROCEDURAL HISTORY

Following his convictions, Deardorff directly appealed to the 

ACCA, which affirmed Deardorff’s murder convictions and death 

sentence. Deardorff I, 6 So.3d at 1234. Following his petition to the 

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Alabama Supreme Court (“ASC”) for a writ of certiorari, the ASC 

also affirmed Deardorff’s death sentence. Deardorff II, 6 So. 3d at 

1245. Deardorff petitioned the Supreme Court of the United States 

for a writ of certiorari, which the Court denied. Deardorff v. Alabama, 556 U.S. 1186 (2009) (mem.).

In October 2009, Deardorff timely filed a petition for postconviction relief pursuant to Alabama Rule of Criminal Procedure 

32, which he later amended. In his amended Rule 32 petition, 

Deardorff argued, among other things, that his trial counsel performed ineffectively by failing to: (1) challenge the admission of 

Turner’s will on Sixth Amendment grounds, and (2) investigate 

mitigation evidence or adequately prepare the mitigation witnesses 

called. To his mitigation claim, he contended his trial counsel failed 

to obtain a professional psychological examination and failed to 

conduct an adequate mitigation investigation. He argued that trial 

counsel hired an unqualified mitigation investigator who conducted perfunctory interviews with Deardorff’s family and friends, 

as evidenced by the investigator’s letter that stated he was discontinuing his efforts after a single day of attempting witness interviews. The investigator explained that he attempted to speak to 

Deardorff’s mother and father, to no avail. Instead of attempting 

additional investigation themselves, Deardorff’s counsel instead 

performed no other mitigation investigation. Deardorff argued 

that, due to this poor investigation, the jury did not hear evidence 

regarding the adverse experiences he faced during his developmental years, the familial turmoil he witnessed, and the impact that 

those events had on his mental health. 

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The state court summarily dismissed many of Deardorff’s

claims, including his claim related to Turner’s will. However, it 

held an evidentiary hearing on Deardorff’s remaining claims, including the one related to counsel’s mitigation investigation and 

presentation. There, Deardorff’s lead trial counsel testified, noting 

he had been practicing law for 33 years and his practice was 60% 

criminal defense work. He had tried seven capital cases during his 

career and at least twenty homicide cases, and Deardorff’s case was 

not his first death case. He confirmed that he did not hire any mental health experts to examine Deardorff, but recalled speaking to 

members of Deardorff’s family and he did not believe mental 

health was an issue in the case. He also stated he hired a mitigation 

investigator, and he recalled that Deardorff and his family did not 

want to talk to the investigator. Deardorff’s counsel chose to move 

the mitigation investigator off the case, but he did not hire another 

investigator because Deardorff told him to not hire another one. 

He recalled that Deardorff stated he did not want to present any 

mitigation evidence because he did not want anyone looking into 

his personal life. 

Deardorff also submitted an affidavit in support of his 

claims. He stated that, “[a]t no time” did he tell his attorneys that 

he did not want them to investigate or present mitigation. He explained that he did not want to work with the specific mitigation 

investigator his counsel had retained and that was why he refused 

to speak to the investigator, not that he refused to participate in a 

mitigation investigation outright. Overall, Deardorff proffered 22 

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assistance claim. Two of these affidavits came from clinical psychologists who proffered various non-statutory mitigating circumstances that they believed should have been identified during the 

penalty phase.3

Following the hearing, the state court denied the remaining 

claims in Deardorff’s amended Rule 32 petition. Relevant here, it

explained that it had considered all the evidence presented, including testimony from the evidentiary hearing and the affidavits 

Deardorff submitted. The court then noted the record evidence 

establishing that Deardorff requested his counsel not to conduct a 

mitigation investigation or present mitigating evidence. It explained that counsel attempted to conduct a mitigation 

3 This evidence included that: (1) Deardorff’s family had a history of mood 

disorders and there might be a genetic component; (2) although there was no 

history of psychiatric treatment, Deardorff might suffer from Bipolar II disorder and may have been experiencing symptoms related to that disorder leading up to, and at the time of the crime; (3) Deardorff was intelligent with excellent problem solving skills; (4) he had 23 adverse developmental factors present in his background; (5) he experienced head trauma as a child; (6) he was 

an average student and advanced normally; (7) he dropped out of high school 

during his senior year to join the Navy, eventually getting his diploma in the 

service; (8) he did very well in the Navy and advanced quickly, until he went 

AWOL and was later discharged; (9) Deardorff’s biological father left when he 

was a baby and was not involved in his life; (10) Deardorff was adopted by his 

stepfather, who was a good person, but emotionally distant and uninvolved; 

(11) his parents went through an ugly divorce when he was a teen; and (12) 

Deardorff had several unsuccessful relationships with women as an adult and 

had some cocaine dependence at one point.

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investigation by use of an investigator, but that Deardorff and his 

family were uncooperative. The state court further emphasized 

that Deardorff reiterated his desire to argue innocence instead of 

mitigation during the penalty phase. Based upon these facts, the 

state court determined Deardorff could not establish deficient performance because trial counsel had adopted a reasonable litigation 

strategy. As to prejudice, the court considered the evidence 

Deardorff introduced, including the proffered non-statutory mitigating circumstances, and determined that Deardorff could not establish prejudice either. 

Deardorff appealed from the denial of his amended Rule 32 

petition, which the ACCA affirmed. As to Deardorff’s argument 

regarding the introduction of Turner’s will, the ACCA concluded 

that the will was not hearsay because it was not offered for the truth 

of the matter asserted. As such, the introduction of the will did 

not violate the Confrontation Clause, and had Deardorff’s counsel 

raised such an objection, it would have been meritless. Thus, the 

ACCA ruled, counsel could not be deemed ineffective for failing to 

raise a meritless objection. The ACCA did not address prejudice 

with regard to the claim concerning Turner’s will. Regarding 

Deardorff’s mitigation argument, the ACCA determined that the 

record supported the state court’s determination and Deardorff 

failed to establish his counsel performed ineffectively. 

Following the ACCA’s affirmance of the denial of his 

amended Rule 32 petition, Deardorff petitioned the ASC for a writ 

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of certiorari, which the ASC denied without opinion. Deardorff’s 

§ 2254 habeas petition followed.

III. DEARDORFF’S § 2254 PETITION

Deardorff raised nine claims for relief in his § 2254 petition. 

As relevant to the current appeal, Deardorff argued that his trial 

counsel provided ineffective assistance by failing to: (1) object to 

the admission of the victim’s will on Confrontation Clause 

grounds; and (2) investigate and present mitigating evidence.

The district court denied Deardorff relief. As to the first issue, the district court ruled that the ACCA’s resolution of this claim 

was not contrary to, or an unreasonable application of, federal law, 

nor was it based on an unreasonable determination of the facts. It 

agreed with the ACCA that the will was not testimonial in nature 

and that it was not entered into evidence to prove the truth of the 

matter asserted. Thus, the introduction of Turner’s will did not 

violate the Confrontation Clause, meaning that Deardorff’s counsel could not be deemed deficient for failing to make a meritless 

objection. The district court stated that the “failure to appropriately limit the jury’s use of this evidence with an instruction from 

the court” was “concerning,” but that it fell short of ineffective assistance of counsel because Deardorff could not establish prejudice. The court concluded that the jury had “abundant evidence” 

and that it could not reasonably be said that the trial would have 

likely had a different outcome.

Regarding Deardorff’s mitigation-based ineffective-assistance claim, the district court again determined that the ACCA 

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appropriately resolved the claim. It pointed to trial counsel’s testimony that residual doubt and innocence were the focal points of 

trial, and that Deardorff did not want to introduce mitigating evidence. As such, Deardorff could not establish deficient performance because trial counsel executed a reasonable trial strategy. 

The district court also ruled that Deardorff failed to establish prejudice arising from his mitigation claim. 

Although the district court denied relief on both claims, it 

did grant Deardorff a COA on his ineffective-assistance-of-counsel 

claim as to the investigation and presentation of mitigation evidence. Upon appeal to this Court, Deardorff moved to expand the 

COA, which we granted in part. As such, the following two issues 

are before us: 

Whether Deardorff’s trial counsel was ineffective for 

failing to object, on Confrontation Clause grounds, 

to the admission of testimonial statements contained 

in the codicil of Mr. Turner’s will?; [and]

Whether Deardorff’s trial counsel was ineffective during the penalty phase for failing to locate and present 

mitigation evidence and failing to prepare the witnesses called?

IV. STANDARD OF REVIEW & RELEVANT LAW

To obtain habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner must 

demonstrate that the state court’s postconviction ruling was either 

(1) “contrary to, or involved an unreasonable application of, clearly 

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established Federal law, as determined by the Supreme Court of 

the United States;” or (2) “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 state court’s decision is 

“contrary to” federal law if the “state court arrives at a conclusion 

opposite to that reached by [the Supreme] Court on a question of 

law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 

Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court’s decision 

is based on an “unreasonable application” of federal law if “the 

state court identifies the correct governing legal principle from [the 

Supreme] Court’s decisions but unreasonably applies that principle 

to the facts of the prisoner’s case.” Id. A state court’s factual findings are presumed correct, and a petitioner bears the burden of rebutting that presumption by clear and convincing evidence. Pye v. 

Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1034 (11th Cir. 2022) 

(en banc).

We review de novo the district court’s legal conclusions and 

its factual findings for clear error. Hardwick v. Sec’y, Fla. Dep’t of 

Corr., 803 F.3d 541, 545 (11th Cir. 2015). The district court’s findings 

on a petitioner’s ineffective assistance of counsel claim are reviewed de novo because the claim presents an issue of mixed law 

and fact. Id. When analyzing an ineffective assistance claim under 

§ 2254(d), this Court’s review is “doubly” deferential. Harrington v. 

Richter, 562 U.S. 86, 105 (2011). Thus, “the question is not whether 

counsel’s actions were reasonable,” but “whether there is any 

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reasonable argument that counsel satisfied Strickland’s deferential 

standard.” Id.

V. ANALYSIS

A successful ineffective assistance of counsel claim requires 

a petitioner to demonstrate that his counsel performed deficiently, 

and that the deficiency prejudiced him. Strickland v. Washington,

466 U.S. 668, 687 (1984). To establish deficient performance, the 

petitioner must show that his counsel’s actions fell below an objective standard of reasonableness, which is analyzed under prevailing 

professional norms. Wiins v. Smith, 539 U.S. 510, 521 (2003). This 

analysis requires courts to engage in a context-dependent analysis 

of the challenged conduct as seen from counsel’s perspective at the 

time of the challenged representation. Id. at 523. Counsel’s judgments are entitled to considerable deference. Rompilla v. Beard, 545 

U.S. 374, 381 (2005). To overcome Strickland’s presumption of reasonableness, a petitioner must show that “no competent counsel” 

would have done what his trial counsel did. Chandler v. United 

States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). 

To establish prejudice, the petitioner must show a reasonable probability that, but for his counsel’s deficient performance, the 

result of the proceeding would have been different. Strickland, 466 

U.S. at 694. We need not address both prongs of the test if the 

movant’s claim fails under just one of them. Id. at 697. 

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A. Deardorff Was Not Prejudiced by His Counsel’s Failure to Object to Turner’s Will.

Because the ACCA never reached the issue of prejudice on 

Deardorff’s ineffective-assistance claim related to Turner’s will, our 

review is not circumscribed by a state court conclusion as to prejudice, and “we examine this element of the Strickland claim de novo.” 

Rompilla, 545 U.S. at 390. Prejudice requires proof of “unprofessional errors so egregious that the trial was rendered unfair and the 

verdict rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 

(11th Cir. 2001) (internal quotation marks omitted). Thus, “[i]t is 

not enough to show that the errors had some conceivable effect on 

the outcome.” Harrington, 562 U.S. at 104 (internal quotation 

marks omitted). Where “sufficient conventional circumstantial evidence” points to the petitioner’s guilt, a petitioner generally cannot establish prejudice. See id. at 113 (noting that “there was . . . 

sufficient conventional circumstantial evidence pointing to [the petitioner’s] guilt” when holding that the petitioner could not establish prejudice); see also Brownlee v. Haley, 306 F.3d 1043, 1060 (11th 

Cir. 2002) (explaining that, when reviewing the prejudice prong of 

an ineffective assistance of counsel claim, courts must consider the 

totality of the evidence presented to the jury).

On appeal, Deardorff continues to argue that the ACCA’s determination that his counsel did not perform ineffectively by failing 

to object to, or request a limiting instruction related to, Turner’s 

will was contrary to, or an unreasonable application of, federal law 

and an unreasonable determination of the facts. To prejudice specifically, he argues that Turner’s will was the key evidence pointing 

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to him as Turner’s killer, and that the jury’s consideration of the 

will affected the outcome of his trial.

We disagree. Without the will, the following evidence 

pointed to Deardorff as Turner’s killer: (1) motive, stemming from 

the eviction and asset seizure initiated against Deardorff by Turner; 

(2) Peacock’s confession; (3) the money, handgun, automobile parts 

paperwork, and pornographic materials found in the vehicle 

Deardorff was riding in prior to his arrest; (4) the duct tape found 

in Deardorff’s shared storage space that forensically matched the 

tape used to bind Turner, along with Turner’s binoculars and borrowed cameras; and (5) the incriminating statements Deardorff 

made to police upon his arrest. Regardless of whether Deardorff’s 

counsel performed deficiently by failing to object to the introduction of the will or failing to request a limiting instruction, Deardorff 

cannot establish that those failures were “so egregious” that his 

trial was rendered unfair and the verdict suspect. Johnson, 256 F.3d 

at 1177. Instead, ample evidence supports the jury’s guilty verdict

which we must consider in the prejudice analysis. Harrington, 562 

U.S. at 113; Brownlee, 306 F.3d at 1060.

Deardorff simply cannot establish that there was a reasonable probability that, but for counsel’s failures, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Accordingly, we affirm the district court’s denial of relief as to this 

claim.

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B. Deardorff’s Counsel Did Not Perform Deficiently During the Investigation into or Presentation of Mitigation Evidence.

It is well-established that counsel must participate in reasonable mitigation investigations. Cummings v. Sec’y for Dep’t of Corr., 

588 F.3d 1331, 1356 (11th Cir. 2009). Nevertheless, counsel is not 

required to seek independent mental health evaluations to ensure 

constitutionally sufficient performance. Holladay v. Haley, 209 F.3d 

1243, 1250 (11th Cir. 2000). Instead, the main concerns are whether 

counsel’s investigation supported his decision to not introduce certain mitigation evidence, and whether that decision was reasonable. Johnson v. Sec’y, DOC, 643 F.3d 907, 931 (11th Cir. 2011). If reasonable jurists could disagree about the state court’s determination 

that counsel’s investigative decisions were reasonable, habeas relief 

should be denied. Id. at 932. 

Where an attorney’s decision to not investigate potential

mitigation evidence is being challenged, we must assess that decision for reasonableness in light of the surrounding circumstances, 

“applying a heavy measure of deference to counsel’s judgments.” 

Cummings, 588 F.3d at 1356 (internal quotation marks omitted). Importantly, “the scope of the duty to investigate mitigation evidence 

is substantially affected by the defendant’s actions, statements, and 

instructions.” Id. at 1357. In cases where a mentally competent 

defendant “affirmatively instructed his counsel to not investigate or 

present mitigation evidence,” counsel’s decision not to investigate 

or present mitigation evidence may be considered reasonable because the scope of counsel’s duty to investigate is greatly 

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circumscribed. Id. at 1357-59; see also Blankenship v. Hall, 542 F.3d 

1253, 1276-77 (11th Cir. 2008) (affirming denial of habeas relief 

based on counsel’s failure to investigate mitigation evidence where 

defendant instructed counsel not to contact his family and that, 

“[a]ssuming [counsel] did not know the details of his client’s background, Blankenship’s admonishment to [counsel] not to contact 

his family cannot be ignored”); Knight v. Duer, 863 F.2d 705, 750 

(11th Cir. 1988) (“Although a capital defendant’s stated desire not 

to use character witnesses does not negate the duty to investigate, 

it limits the scope of the investigation required.”); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir. 1986) (“[A] defendant’s decision communicated to his counsel as to who he wants to leave out 

of the investigation, while not negating the duty to investigate, 

does limit the scope of the investigation.”).

When a petitioner denies his guilt at trial, “residual doubt is

perhaps the most effective strategy to employ at sentencing.” 

Chandler, 218 F.3d at 1320 n.28. “[T]he law itself points to and lays 

the foundation for a good argument based on lingering doubt when 

the jury is later asked to impose death . . . . Nothing about this 

argument signals submissiveness or fatalism; stressing residual 

doubt is a straightforward and sound defense.” Id. Thus, counsel 

cannot be deemed ineffective “when he has taken a line of defense 

which is objectively reasonable.” Id. Additionally, counsel is “entitled to formulate a strategy that was reasonable at the time and to 

balance limited resources in accord with effective trial tactics and 

strategies.” Harrington, 562 U.S. at 107.

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Witness credibility “is the province and function of the state 

courts, not a federal court engaging in habeas review.” Consalvo v. 

Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011). As such, 

we cannot redetermine the credibility of a witness whose demeanor was observed by the state court. Id. Witness credibility, 

therefore, is a question of fact entitled to a presumption of correctness that a petitioner must rebut with clear and convincing evidence. Id. (citing 28 U.S.C. § 2254(e)).

Before us, Deardorff argues that his trial counsel’s failure to 

locate and present mitigation evidence or prepare the witnesses 

called qualifies as ineffective assistance of counsel. He asserts that 

counsel’s use of an ineffective mitigation investigator, failure to hire 

another investigator or investigate on his own, and subsequent cursory presentation of mitigation evidence during the penalty phase 

was constitutionally deficient performance that entitles him to habeas relief. Deardorff also asserts that the ACCA’s factual determination that he instructed counsel not to perform a mitigation investigation was unreasonable given his affidavit to the contrary.

We, again, disagree. As an initial matter, the state court’s 

determination that Deardorff instructed his counsel that he did not 

want to present mitigation is not an unreasonable determination 

of the facts. The state court’s choice of which testimony to credit 

is a credibility determination. We are not in a position, on federal 

habeas review, to question the state court’s factual finding on this 

point, especially where Deardorff has not presented any clear and 

convincing evidence as to why the state court should not have 

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credited his counsel’s version of events. Consalvo, 664 F.3d at 845. 

Therefore, the state court’s resolution of Deardorff’s claim was not 

contrary to, or an unreasonable application of, federal law. While 

Deardorff’s counsel was required to perform a mitigation investigation, his duty was circumscribed by Deardorff’s explicit instruction to (1) not perform a mitigation investigation, and (2) not hire 

a new investigator after the first one was taken off the case. Cummings, 588 F.3d at 1357-59. As such, after both Deardorff and his 

family refused to cooperate with the first mitigation investigator, 

counsel’s decision to not investigate further was not so unreasonable that “no competent counsel” would have taken that route. 

Chandler, 218 F.3d at 1315.

This conclusion is further supported by the evidence showing that Deardorff’s strategy during this trial was to shift blame to 

Peacock, assert his innocence, and focus on residual doubt. Residual doubt is a sound, reasonable defense that can be effective at sentencing, see id. at 1320 n.28, and the record evidence here shows 

that residual doubt was a recurring theme throughout Deardorff’s 

trial and sentencing. 

For these reasons, Deardorff cannot establish that his trial 

counsel performed deficiently during the mitigation investigation 

or preparation. As such, the district court properly denied 

Deardorff relief on this claim.

VI. CONCLUSION

For these reasons, we AFFIRM the district court’s denial of 

Deardorff’s § 2254 habeas petition.

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