[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-15068

________________________

D.C. Docket No. 2:13-cv-00559-JES-CM

ANTON J. KRAWCZUK, 

 Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 18, 2017)

Before HULL, WILLIAM PRYOR, and MARTIN, Circuit Judges.

HULL, Circuit Judge: 

Florida death row inmate Anton Krawczuk appeals the district court’s denial 

of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. At issue is 

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Krawczuk’s claim that his counsel rendered ineffective assistance in the 

investigation and presentation of mitigation evidence during his penalty phase 

proceedings. After review and with the benefit of oral argument, we conclude that 

the state court’s denial of Krawczuk’s ineffective trial counsel claim was not

contrary to, or an unreasonable application of, clearly established federal law, nor 

was it based on an unreasonable determination of the facts. Accordingly, we 

affirm the district court’s denial of Krawczuk’s § 2254 petition.

I. BACKGROUND

We first recount the evidence and procedural history.

A. Murder and Robbery

On September 12, 1990, Krawczuk and his roommate Billy Poirier brutally 

murdered and robbed David Staker. Krawczuk v. State, 634 So. 2d 1070, 1071 

(Fla. 1994) (“Krawczuk I”). Both Krawczuk and Poirier, who shared a home in

Lee County, Florida, were sexually involved with Staker during the months leading 

up to the murder. Id. Krawczuk and Poirier planned the murder and robbery three 

or four days in advance, arranging to carry out the crimes while visiting Staker at 

his home. Id.

The night of the murder, Krawczuk and Poirier went together to Staker’s 

home. Id. They brought gloves with them to use while carrying out the murder

and parked their vehicle some distance away from the victim’s house. After the 

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three men watched television in the living room for twenty to thirty minutes, 

Krawczuk suggested that they go to the bedroom. Id.

After a series of other events in the bedroom, Krawczuk retrieved his gloves, 

began acting aggressively, and proceeded to choke Staker with both hands. Id.

Meanwhile, Poirier assisted by holding Staker’s mouth shut and pinching his nose 

closed. Id. Staker fought back and even tried to hit Krawczuk with a lamp, but 

Poirier was able to overtake Staker and wrestle the lamp away. Id. After almost 

ten minutes, Staker relented. See id. Believing that Staker might be “faking it,” 

however, Krawczuk twice poured drain cleaner and water into Staker’s mouth until 

it overflowed. Id. Poirier then stuffed a washcloth into Staker’s mouth and 

covered it with tape. Id. Krawczuk then bound Staker’s ankles, and the assailants 

deposited the body in the bathtub. Id. It was later determined that Staker died of 

asphyxia and strangulation.

In accordance with their established plan, Krawczuk and Poirier then stole a 

number of Staker’s possessions, including television sets, stereo equipment, a 

video recorder, five rifles, and a pistol. Id. They loaded these items into Staker’s 

pickup truck, along with Staker’s body, and drove to the home of Gary Sigelmier, 

who bought some of the stolen items and agreed to store the rest. Id. at 1071–72. 

Krawczuk and Poirer then loaded Staker’s body into their own vehicle, abandoned 

Staker’s pickup truck, and drove to a rural area, which Krawczuk had scouted 

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before the murder, to dump Staker’s body. Id. at 1072. They discarded Staker’s 

body in the woods and left. Id. 

B. Investigation, Confession, and Indictment

In the days following the murder, Staker’s employer noticed that Staker had 

not shown up for work or picked up his paycheck. Id. at 1071. She went looking 

for Staker at his home, where she found the door open and what looked like the 

scene of a robbery. Id. She immediately contacted Lee County authorities. Id. 

On September 13, 1990, authorities found a body, later identified as 

Staker’s, in a wooded area in Charlotte County, Florida. Id. Later that month, 

Sigelmier reported to the Charlotte County Sheriff’s office that he bought property 

stolen from Staker’s home and that he had acquired it from Krawczuk and Poirer. 

Id. 

On September 18, 1990, sheriff’s deputies from Lee County and Charlotte 

County went to Krawczuk and Poirer’s home and took both men into custody. Id.

at 1071–72. After waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602 (1966), Krawczuk confessed to Staker’s murder. Krawczuk I, 634 So. 

2d at 1072.

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On October 3, 1990, a grand jury indicted Krawczuk and Poirier for (1) first 

degree premeditated murder, (2) first degree felony murder, and (3) robbery.1

C. LeGrande’s Letter Regarding Aggravation and Mitigation

On March 8, 1991, Krawczuk’s appointed trial counsel, Barbara LeGrande,2

wrote a letter to Krawczuk explaining the importance of aggravating and 

mitigating circumstances in a capital case. She informed Krawczuk that she had 

reviewed his military records and had provided them to Dr. Richard C. Keown, 

who conducted a psychiatric evaluation of Krawczuk. In her letter, LeGrande 

included a list of all the statutory aggravating and mitigating factors that would be 

considered by the jury and judge in determining whether to sentence Krawczuk to 

death.

In her letter, LeGrande predicted the five aggravating factors the State would 

try to prove and evaluated the likelihood that the State would succeed in proving

each one. LeGrande identified five mitigating factors that she intended to prove on 

Krawczuk’s behalf and explained that proving most of them would require 

Krawczuk to testify at trial. She explained to Krawczuk that facts—including preplanning the murder, pouring drain cleaner down the victim’s throat, and hiding 

the body—would probably cause the jury to return a recommendation of death.

 

1

Codefendant Poirier pled guilty to second degree murder in exchange for a sentence of 

thirty-five years’ imprisonment. Krawczuk I, 634 So. 2d at 1072 n.2.

2

At the time of her representing Krawczuk, Counsel LeGrande had been appointed 

previously to seventeen capital cases.

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D. Dr. Keown’s Psychiatric Evaluation and Report

During the pretrial proceedings, counsel LeGrande sought funds for a 

psychiatric evaluation to determine both Krawczuk’s sanity at the time of the 

evaluation and his mental state at the time of Staker’s murder. The state trial court 

granted Krawczuk’s motion and ordered an examination by Dr. Keown, who 

prepared a psychiatric report of his findings.

In his April 9, 1991 report, Dr. Keown summarized Krawczuk’s brief history 

of mental health treatment. When Krawczuk was eleven or twelve years old, he 

attended court-ordered counseling because of his tendency to get into trouble and 

run away from home. Later, during his time serving as a United States Marine, 

Krawczuk was referred to a military psychiatrist because of Krawczuk’s “apathetic 

and disinterested attitude about marine life, suicidal intentions, and conflicts with 

military life.” Dr. Keown’s report noted that though the military psychiatrist 

identified no evidence of neurosis, psychosis, brain syndrome, or homicidal or 

suicidal thoughts, she did find that Krawczuk suffered from a mixed personality 

disorder and exhibited traits like immaturity, passive-aggressiveness, and antisocial personality patterns. LeGrande had forwarded a copy of Krawczuk’s 

military records to Dr. Keown. Dr. Keown’s report highlighted that Krawczuk was 

“of at least average intelligence with no significant cognitive deficits.”

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As to Krawczuk’s family history, Dr. Keown noted that Krawczuk had no 

meaningful relationship with his father, that his mother was physically and 

verbally abusive, and that his stepfather often beat him. Krawczuk told Dr. Keown 

that his poor family life drove him to misbehavior, truancy, and even criminal 

activity.

While serving in the Marines, Krawczuk was (1) disciplined for fighting and 

misusing military equipment, (2) was court martialed for being away without 

leave, and (3) served six months in military confinement. Krawczuk eventually 

received an administrative separation from his military service. Krawczuk also 

explained to Dr. Keown that “he would rather have death than twenty-five years in 

jail” if he was found guilty.

Ultimately, Dr. Keown found that Krawczuk suffered from mild depressive 

symptoms but did not require medication. Dr. Keown concluded that Krawczuk 

was competent to stand trial and was sane at the time of Staker’s murder. By 

May 8, 1991, Krawczuk had received Dr. Keown’s report from LeGrande.

E. Pretrial Motion to Suppress Confession

On July 8, 1991, Krawczuk filed a motion to suppress his confession, which 

the state trial court denied. Id. The state trial court determined that Krawczuk’s 

confession was admissible because it was given voluntarily after he was advised 

of, and waived, his Miranda rights. Id.

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F. Change of Plea Hearing and Guilty Plea

On September 27, 1991, Krawczuk informed the state trial court that he 

intended to plead guilty to all three counts in the indictment—first degree 

premeditated murder, first degree felony murder, and robbery—and requested the 

death penalty. Id. The state trial court held a hearing on Krawczuk’s change of 

plea.

At the outset, Krawczuk informed the state trial court that he was prescribed 

Elavil because he became increasingly nervous in the days leading up to the trial 

and the medication had a calming effect to help him sleep. Id. at 1073. Krawczuk 

took this medication the day of the hearing, but he could not feel its effects and, at 

any rate, it did not prevent him from making a reasoned decision about his plea. 

Krawczuk stated that he otherwise had never suffered from mental illness before.

During the plea colloquy, Krawczuk indicated that he understood that an 

adjudication of guilt for murder could result in imposition of the death penalty. 

Krawczuk acknowledged his understanding that the proceedings would include a 

penalty phase to determine whether death would be an appropriate sentence. The 

state trial court explained to Krawczuk that he was entitled to have a jury make this 

determination during the penalty phase and that the jury’s recommendation carried 

great weight.

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As to penalty phase proceedings, Krawczuk affirmed that he wished to 

waive the jury determination in favor of a determination by the state trial court and 

that he did not want to present any mitigating evidence. When asked why he 

intended to plead guilty and waive the opportunity to present mitigating evidence, 

Krawczuk answered that he “shouldn’t be allowed to live for what [he] did.”

At the plea hearing, the state trial court also addressed with Krawczuk 

whether he was satisfied with the representation of LeGrande. By a letter to the 

trial court dated April 29, 1991, Krawczuk had requested that LeGrande be 

dismissed and that he be appointed different counsel. Krawczuk reversed course at 

the hearing, however, stating that he was satisfied with LeGrande’s representation 

and no longer wanted her removed. In addition, Krawczuk reported that he and 

LeGrande had fully discussed the implications of his guilty plea.

Before the plea hearing, LeGrande had filed a motion for funds to hire a 

mitigation expert, but Krawczuk dismissed that motion at the hearing. LeGrande 

explained that she had advised Krawczuk not to plead guilty and was prepared to 

present mitigating evidence. In particular, LeGrande planned to present the 

testimony of Dr. Keown and Paul Wise, Krawczuk’s coworker, but Krawczuk 

instructed her not to. LeGrande intimated that she would present additional

mitigating evidence, but she did not specify what evidence. LeGrande understood

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that, under Florida law, it was Krawczuk’s right to instruct her not to present 

mitigation evidence.

The state trial court found that Krawczuk was competent, determined that 

his guilty plea was entered freely and voluntarily, and adjudicated him guilty of 

first degree premeditated murder and robbery.

G. Krawczuk’s Letter Following Sentencing Hearing

After the state trial court accepted his guilty plea, Krawczuk wrote a 

September 30, 1991 letter to LeGrande reiterating his desire to be sentenced to 

death and expressing hope that his guilty plea would help ensure his receiving the 

death penalty:

As for my sentencing hearing, do you feel I can achieve my goal of 

receiving the death sentence? From the sounds of it, [the prosecutor] 

is very much for it as well, isn’t he? By my pleading guilty to the 

charges, doesn’t that increase the aggravating circumstances against 

me, and basically ensure my death penalty? After all, I am assisting 

the prosecution in their proving of my total guilt, aren’t I?

In that same letter, Krawczuk lauded LeGrande’s representation, stating:

As far as I’m concerned, you have proven to be a shining example for 

a lawyer, and I have nothing but praise for you [and] your work. You 

have examined each and every aspect, as I have requested. In fact, I 

feel that you have done far more than was actually required. If I have 

put you in a bind by pleading guilty, it wasn’t my intention. Thank 

you for remaining as my counsel, through this most critical of all 

phases.

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H. Penalty Phase Proceedings

After Krawczuk’s guilty plea, in a separate hearing on October 29, 1991, the 

State argued a penalty phase trial before a jury would be necessary despite 

Krawczuk’s waiver. The state trial court agreed and ordered a jury trial, which 

took place on February 4 and 5, 1992.

Before jury selection began, Krawczuk reiterated that he did not want 

LeGrande to participate in any part of the penalty phase trial, including selecting 

the jury, cross-examining the State’s witnesses, presenting mitigation evidence, or 

making a closing argument. LeGrande again explained that she had advised 

Krawczuk against this course of action. When asked why he had chosen this 

course, Krawczuk replied: “Because I just feel basically twenty-five years as 

opposed to a death penalty is one in the same, either way you look at it, your life is 

gone.”

Later this colloquy occurred:

THE COURT: It’s my understanding from your remarks—and I don’t 

want to put words in your mouth. But your response for taking this 

course of action, or one of the principal reasons is that the sentence of 

life with the minimum mandatory twenty-five years, um, is equally 

abhorrent and undesirable to you, as would be a death sentence. 

Would you consider them equivalent for your purposes?

MR. KRAWCZUK: Yes, Sir.

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After extensive colloquy, the state trial court determined that Krawczuk was 

competent, that he understood the consequences of his decision, and that he was 

sufficiently intelligent to make this decision.

After a jury was impaneled, the State gave its opening statement. Neither 

LeGrande nor Krawczuk made any opening statement. The State then proceeded 

with its case.

The State’s first witness was Staker’s roommate, Charles Staub, who 

identified several of the items stolen on the night of the murder. The State then 

called Pete Sbabori, an investigator with the Charlotte County Sheriff’s Office, 

who had helped identify Staker’s body, had investigated the murder, and was 

present for Krawczuk’s arrest.

Gary Sigelmier, the third witness, testified about how he met with Krawczuk 

and Poirier on the night of the murder and agreed to buy and store the items stolen 

from Staker’s house. The State also presented the testimony of Ed Tamayo, a 

sergeant with the Lee County Sheriff’s Office, who investigated the report that 

Staker was missing, recovered items stolen from Staker’s house, and was present 

for Krawczuk’s arrest.

Dr. R. H. Imani, the Medical Examiner for the District of Charlotte County, 

testified as an expert in forensic pathology. Dr. Imani performed the autopsy on

Staker’s body and determined that Staker died from asphyxia and strangulation.

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The State then called Michael Savage, a detective with the Charlotte County 

Sheriff’s Office, who helped investigate Staker’s murder. Detective Savage was 

present when Krawczuk waived his Miranda rights and confessed to killing Staker.

In the jury’s presence, the State played an audio tape of Krawczuk’s 

confession, in which he explained in gruesome detail how he and Poirier preplanned and carried out Staker’s murder, robbed Staker’s house, and disposed of 

Staker’s body. During his confession, when asked why he was motivated to kill 

Staker, Krawczuk stated that he was “frustrate[ed] from the homosexual

community that thrive[d]” where he lived and that he “wanted to exterminate it.”

After the State rested and outside the presence of the jury, the state trial 

court again raised the issue of whether Krawczuk intended to present any 

mitigating evidence. Initially, Krawczuk indicated that he might allow the 

introduction of Dr. Keown’s psychiatric report as mitigating evidence. LeGrande 

explained that Krawczuk was willing to do this not because he wished to avoid the 

death penalty but as a way of helping LeGrande discharge her duties as trial

counsel and to prevent his death sentence being overturned on appeal.

The state trial court hinted that it was inclined to allow Dr. Keown’s report 

to be admitted into evidence, but Krawczuk abruptly changed his mind and

directed LeGrande not to introduce the report during his penalty phase case. 

Krawczuk then stated, as before, that he did not wish to present any mitigating 

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evidence or testify and that he was directing LeGrande not to make any closing 

argument. Once again, LeGrande represented that she had strongly advised

Krawczuk against this course of action. Krawczuk also stated that he did not wish 

for the record to reflect the reasons for his decision due to their “very personal” 

nature.

As Krawczuk wished, the defense rested without presenting any evidence. 

After the State’s final argument, the defense waived its opportunity to do the same.

At the end of the penalty phase, the jury unanimously recommended the death 

penalty.

I. Spencer Hearing and Sentencing

On February 11, 1992, the state trial court held a hearing pursuant to 

Spencer v. State, 615 So. 2d 688 (Fla. 1993). LeGrande again stated that she 

intended to introduce Dr. Keown’s psychiatric report as mitigation evidence, but 

Krawczuk directed her not to. Nonetheless, the state trial court indicated that, in 

making its sentencing determination, it would take into account both Dr. Keown’s

psychiatric report and the presentence investigation report. Krawczuk I, 634 So. 

2d at 1072. 

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On February 13, 1992, the state trial court sentenced Krawczuk to death.3 

Id. Based on the evidence, the state trial court found three statutory aggravating 

factors: (1) the murder was committed in the course of a robbery or for pecuniary 

gain; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder 

was committed in a cold, calculated, and premeditated manner with no pretense of 

moral or legal justification. Upon consideration of the presentence investigation 

report and Dr. Keown’s psychiatric report, the state trial court found one statutory 

mitigating factor: that Krawczuk had no significant history of prior criminal 

activity.

J. Direct Appeal

On direct appeal, the Florida Supreme Court affirmed Krawczuk’s firstdegree murder conviction and death sentence. Id. at 1074. The Florida Supreme 

Court concluded, inter alia, that sufficient evidence supported Krawczuk’s murder 

conviction and that the state trial court adequately considered Dr. Keown’s 

psychiatric report and the presentence investigation report in reaching its 

sentencing decision. Id. at 1073.

The United States Supreme Court denied Krawczuk’s petition for writ of 

certiorari. Krawczuk v. Florida, 513 U.S. 881, 115 S. Ct. 216 (1994) (mem.).

 

3

As to Krawczuk’s robbery conviction, the state trial court sentenced Krawczuk to fifteen 

years’ imprisonment.

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II. STATE POSTCONVICTION PROCEEDINGS

On October 3, 1995, Krawczuk filed his initial motion for state 

postconviction relief under Rule 3.850 of the Florida Rules of Criminal 

Procedure.4

 Krawczuk v. State, 92 So. 3d 195, 200 (Fla. 2012) (“Krawczuk II”). 

On March 15, 2002, Krawczuk filed an amended 3.850 motion raising twenty four 

claims. Id. After a hearing pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993), 

the state 3.850 court granted an evidentiary hearing on several issues, including the 

relevant Strickland issues. At the hearing, Krawczuk asserted LeGrande should 

have developed and presented evidence to show: (1) his physically and emotionally 

abusive childhood; (2) his substance and alcohol abuse; (3) that he was a good 

worker at his maintenance job at McDonalds; (4) that he cooperated with 

authorities; (5) that he was under a mental or emotional disturbance at the time of 

the murder; and (6) that he was allowed to plead guilty to a lesser charge and 

receive only a prison sentence. Id. We summarize the extent of this evidence at 

the 3.850 hearing.

A. Family and Social Background

Krawczuk’s twin brother, Christopher Krawczuk, testified about his and 

Krawczuk’s difficult childhood. They never had much of a relationship with their 

 

4

Krawczuk filed his postconviction motion prior to the adoption of Rule 3.851 of the 

Florida Rules of Criminal Procedure, which now governs postconviction motions filed by 

petitioners who have been sentenced to death. See Fla. R. Crim. P. 3.851.

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father, who left in their infancy. Christopher had heard that their father was a 

heavy drinker who was often violent with their mother, Patricia. For much of their 

childhood, the boys were raised by their mother, who was especially physically 

and verbally abusive toward Krawczuk and often doled out extreme punishments. 

When Krawczuk got in trouble for playing with matches, for example, their mother 

Patricia once forced him to hold his hand over a lit gas stove burner. She also used 

to strike the boys with the metal wand of a vacuum cleaner. When Krawczuk 

soiled himself, their mother made him walk down the street wearing a sign reading, 

“I do my doodie in my pants every day.” LeGrande never contacted Christopher, 

but he would have been willing to testify.

Santo Calabro, who married Krawczuk’s mother, also testified about 

Krawczuk’s turbulent home life. Calabro felt that Krawczuk’s mother Patricia 

directed most of her anger toward Krawczuk and punished him more severely than 

her other children. She not only denied Krawczuk her affection but also subjected 

him to violent beatings. Although willing to testify, Calabro was never contacted.

Krawczuk’s childhood friend, Todd Kaase, also witnessed the mother’s 

violence to Krawczuk. When Krawczuk was around fifteen or sixteen years old,

he escaped his mother’s abuse and lived full time with Kaase’s family. During the 

year Krawczuk lived with the Kaase family, Patricia never visited or even called to 

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check on Krawczuk. Although never contacted, Kaase would have been willing to 

testify.

Krawczuk’s mother Patricia also testified about Krawczuk’s upbringing. 

She described Krawczuk’s father as a “brutal man” who drank and beat her while 

she was pregnant with Krawczuk and Christopher. Patricia was verbally and 

physically abusive toward all her children, but especially toward Krawczuk 

because he was an unaffectionate and difficult child. Patricia tried to show him 

love and affection, but Krawczuk was “aloof.”

Patricia had a hard time dealing with Krawczuk’s misbehavior. When 

Krawczuk was only fifteen or sixteen years old, for instance, he was arrested for 

stealing cars and spent time in a youth detention facility. Patricia beat Krawczuk 

as a way of disciplining him for his “incorrigible” behavior.

When Patricia found out that Krawczuk was in jail for Staker’s murder, she 

called LeGrande about visiting him. LeGrande seemed surprised to hear from 

Patricia and never contacted her again regarding Krawczuk’s penalty phase trial. 

Patricia was unsure whether she would have testified during Krawczuk’s penalty 

phase, but she at least would have been willing to talk to LeGrande.

Paul Wise, Krawczuk’s former coworker and roommate, testified that 

Krawczuk was a hard worker but was often moody and occasionally used 

marijuana. Socially, Wise described Krawczuk as loner and a “follower.”

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Judith Nelson, Krawczuk’s former wife, testified that she and Krawczuk 

married in 1986, had one child together, and divorced after about a year and a half 

of marriage. While he was married to Nelson, Krawczuk used marijuana on a 

daily basis and occasionally took speed. Krawczuk was not very affectionate and 

had a hard time communicating with her, but Krawczuk also had a good side and at 

times she enjoyed his company.

Krawczuk told Nelson about the issues he faced during his childhood, 

including his mother Patricia’s abusive behavior. Nelson had a positive 

relationship with Patricia during her marriage to Krawczuk, but things turned sour 

after the divorce when Nelson decided to remarry.

Nelson did not think highly of Poirier, Krawczuk’s codefendant. Poirier and 

Krawczuk spent a lot of time together, and Nelson eventually learned that they 

spent some of this time “doing sex swap things” and burglarizing homes. 

Although Nelson testified that Poirier always emulated Krawczuk’s behavior, she 

felt that Poirier had more influence in their friendship and was the one who 

organized their criminal activity.

B. Mental Health Experts

During the 3.850 hearing, Krawczuk also presented the testimony of two 

mental health experts: Dr. Barry Crown and Dr. Faye Sultan.

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Dr. Crown, a psychologist, testified as an expert in neuropsychology with a 

special focus on child abuse and drug addiction. Dr. Crown interviewed Krawczuk 

and administered neuropsychological tests to determine the relationship between 

his brain function and behavior. Dr. Crown did not review any background 

materials or previous psychiatric information before evaluating Krawczuk.

Based on his evaluation, Dr. Crown found that Krawczuk had normal 

intellectual functioning but poor intellectual efficiency, with the critical thinking 

skills of a ten-year-old and the mental processing skills of a thirteen-year-old. 

Dr. Crown also found that Krawczuk showed signs of organic brain damage, which 

was likely related to developmental issues and was aggravated by head trauma and 

drug and alcohol use. As to statutory mitigators, Dr. Crown opined that at the time 

of Staker’s murder, Krawczuk was under the influence of an extreme mental or 

emotional disturbance and lacked the capacity to conform his conduct to the 

requirements of the law.

Dr. Sultan, also a psychologist, testified as an expert in the field of clinical 

psychology with a focus on the assessment and treatment of victims of abuse. 

Dr. Sultan met with Krawczuk on seven separate occasions, conducted formal 

psychological testing, reviewed background materials provided by Krawczuk’s 

postconviction counsel, reviewed Dr. Crown’s neuropsychological report, and 

spoke with several of Krawczuk’s family members and friends.

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Through her background research, Dr. Sultan learned that Krawczuk 

suffered severe childhood abuse and frequently ran away from home. Krawczuk 

told Dr. Sultan that, when he was fifteen or sixteen years old, he was briefly 

abducted, sexually abused, and beaten by a group of strangers. Dr. Sultan 

diagnosed Krawczuk with a general cognitive disorder, obsessive-compulsive 

disorder, and a general personality disorder. Dr. Sultan described Krawczuk as a 

passive person who was easily influenced and exhibited traits consistent with 

antisocial personality disorder.

Like Dr. Crown, Dr. Sultan determined that two statutory mitigating factors 

applied at the time of Staker’s murder: Krawczuk was under the influence of an 

extreme mental or emotional disturbance and he was unable to conform his 

conduct to the requirements of the law. As to non-statutory mitigators, Dr. Sultan 

found it relevant that Krawczuk: (1) was abandoned by his father; (2) was isolated

during childhood; (3) was not supervised during his childhood; (4) sustained

neuropsychological damage; (5) had mental disorders; (6) endured emotional and 

physical abuse; (7) experienced depressive symptoms; and (8) suffered sexual 

abuse.

When asked about Krawczuk’s decision not to present mitigating evidence 

at the penalty phase, Dr. Sultan opined that Krawczuk’s mental disorders likely 

influenced this decision. Dr. Sultan also felt, however, that Krawczuk’s thinking 

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was not impaired by Elavil, the antidepressant medication he was taking at the time 

of his plea hearing.

C. Barbara LeGrande

Trial counsel LeGrande testified about her representation of Krawczuk. 

LeGrande recalled that Krawczuk asked her not to present mitigation evidence and 

it was her understanding that Krawczuk was entitled to make that decision on his 

own. At the time Krawczuk made this decision, LeGrande did not put on the 

record the full list of witnesses and experts she would have called in mitigation.

As to her investigation of mitigating evidence, LeGrande explained that she 

had done little mitigation research in advance of the plea hearing. Other than 

obtaining a psychiatric evaluation and report from Dr. Keown, LeGrande did not 

try to find other expert witnesses. LeGrande spoke briefly with Krawczuk’s 

mother and grandmother, but she could not recall the content of these 

conversations. LeGrande tried to gather more information about Krawczuk’s 

family so that she could talk with them, but stated Krawczuk was not cooperative 

with this effort and wanted to leave his family out of it.

LeGrande explained that, had Krawczuk allowed her to present a case at the 

penalty phase, she would have engaged in further investigation of mitigating 

evidence, including hiring experts and looking into other potential witnesses. 

LeGrande tried to hire a mitigation expert to assist in this process, but at the plea 

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hearing, Krawczuk dismissed her motion for expert funds. In light of Krawczuk’s 

stated desire not to present a penalty phase case, LeGrande felt that she could not 

“in good faith . . . represent to the Court that [she] needed a mitigation expert.”

LeGrande acknowledged that Poirier’s relative culpability for the murder 

and influence over Krawczuk were relevant to Krawczuk’s penalty phase 

proceedings. In fact, she discussed with Krawczuk the possibility of his taking the 

stand to testify that Poirier had influenced him to participate in the murder. But 

because Krawczuk was unwilling to testify at the penalty phase proceedings, she 

did not discuss this relative culpability issue with Krawczuk in great detail. At any 

rate, because Poirier pled guilty to the murder months after Krawczuk pled guilty,

LeGrande had no way of knowing at the time of Krawczuk’s penalty phase 

whether Poirier would receive a sentence that was proportional to his culpability 

and thus had no reason to explore this issue as it related to mitigation.

Ultimately, because Krawczuk did not wish to make a case at the penalty 

phase, LeGrande was unable to explain to Krawczuk the details of what mitigating

evidence might have been presented on his behalf. Instead, she could only provide 

Krawczuk with a general conceptual explanation of mitigating evidence and how it 

might help him avoid the death penalty.

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D. State’s Evidence

For its part, the State introduced two exhibits. First, the State introduced the 

psychiatric report of Dr. Robert J. Wald, who performed a psychiatric evaluation to 

determine whether Krawczuk was competent to testify as a witness in codefendant 

Poirier’s criminal case. Dr. Wald examined Krawczuk in March 1992, after the 

state trial court sentenced Krawczuk to death.

Dr. Wald found that Krawczuk’s intelligence was normal or slightly above 

and that he exhibited no signs of hallucinations, delusional thinking, paranoia, or 

suicidal or homicidal thoughts. Krawczuk told Dr. Wald that he felt the 

punishment he received fit the crime for which he was convicted and that he stood 

to gain nothing by testifying against Poirier. Dr. Wald concluded that Krawczuk 

was competent to testify in Poirier’s criminal proceedings.

Second, the State introduced into evidence the transcript of a deposition 

given by Dr. Keown. Among other things, Dr. Keown stated that, during his 

meeting with him, Krawczuk emphasized that Poirier led the effort to rob and kill 

Staker and that he was merely a follower. In Dr. Keown’s clinical opinion, 

Krawczuk was “overstating” Poirier’s influence over him.

III. STATE POSTCONVICTION COURT’S DENIAL OF 3.850 MOTION

In a comprehensive order dated January 25, 2010, the state postconviction 

court denied Krawczuk’s 3.850 motion for postconviction relief. As relevant to 

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this appeal, the state 3.850 court rejected Krawczuk’s claim that LeGrande 

rendered ineffective assistance in the investigation and presentation of mitigating 

evidence.

At the outset, the state 3.850 court found the testimony of Krawczuk’s two

mental health experts—Dr. Crown and Dr. Sultan—to be incredible. As to 

Dr. Crown’s conclusions that, at the time of the murder, Krawczuk was under the 

influence of an extreme mental or emotional disturbance and was unable to 

conform his conduct to the requirements of the law, the state 3.850 court found that 

the weight of the evidence so strongly refuted this claim as to render it incredible:

[T]he other evidence including, particularly, Mr. Krawczuk’s 

confession but also including Mr. Krawczuk’s letters, the statement 

and deposition of Gary Sigelmier, the statement of Mr. Poirier, the 

testimony of the family members and friends, the other mental health 

professionals, reports and depositions, and other credible evidence in 

this case so resoundingly refute this opinion as to discredit [it] as well 

the related opinion that Mr. Krawczuk suffers from organic brain 

damage.

The state 3.850 court also rejected Dr. Sultan’s conclusions that Krawczuk 

was under the influence of an extreme mental or emotional disturbance and was 

unable to conform his conduct to the requirements of the law. Although Dr. Sultan 

testified that she relied extensively on Dr. Crown’s evaluations in reaching her own 

conclusions, the record shows that Dr. Sultan’s last meeting with Krawczuk 

occurred well before Dr. Crown evaluated him. The state 3.850 court also found 

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that Dr. Sultan’s conclusions were contrary to the weight of the evidence, which 

strongly indicated that these statutory mitigating factors did not apply.

A. Krawczuk’s Legitimate Waiver

Regarding Krawczuk’s decision not to present a penalty phase case, the state 

3.850 court recognized that under Florida law, “[a] competent defendant may 

waive presentation of mitigation evidence.” See Hojan v. State, 3 So. 3d 1204, 

1211 (Fla. 2009) (“Competent defendants who are represented by counsel maintain 

the right to make choices in respect to their attorneys’ handling of their cases. This 

includes the right to either waive presentation of mitigation evidence or to choose 

what mitigation evidence is introduced by counsel.”). Florida law also provides 

that, where a defendant seeks to waive the presentation of evidence against the 

advice of counsel, counsel must inform the trial court on the record of the 

defendant’s decision and indicate what mitigation evidence, if any, is available to 

be presented. Koon v. Dugger, 619 So. 2d 246, 250 (Fla. 1993). The trial court 

must then require the defendant to confirm on the record that his counsel had 

discussed these matters with him and that he nonetheless intended to waive the 

presentation of mitigation evidence. Id.

The state 3.850 court explained, however, that Koon was decided after 

Krawczuk’s sentencing hearing in February 1992 and thus did not bind LeGrande 

during her representation. In any event, the state 3.850 court noted that the rule 

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announced in Koon is a creature of state law only and that this procedure likely is 

not required as a matter of federal law. See Anderson v. Sec’y, Dep’t of Corr., 462 

F.3d 1319, 1330–31 (11th Cir. 2006) (“Although Koon requires counsel to state on 

the record what the evidence in mitigation would be . . . , ‘[a] state’s interpretation 

of its own laws or rules provides no basis for federal habeas corpus relief, since no 

question of constitutional nature is involved.’” (second alteration in original) 

(citing McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992))). It further 

found that Krawczuk was and is mentally competent and validly waived the 

presentation of mitigation evidence, stating:

at the time of this case no particular form of record inquiry was 

required for a defendant to waive mitigation (waive the presentation 

of evidence) and as it is not subject of serious dispute that Mr. 

Krawczuk was, and is, a mentally competent man . . . who was 

counseled by his attorney and asked and inquired of by the court and 

the prosecutor on multiple occasions . . . regarding his decision to 

waive mitigation[,] the basics [sic] requirements for a valid record 

waiver as they existed at the time of this case have been met.

B. Ineffective Counsel

Turning to Krawczuk’s ineffective counsel claim, the state 3.850 court 

discussed the legal principles in Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052 (1984). It noted that Strickland requires the petitioner to show both that 

counsel’s performance was deficient under the then-prevailing professional norms

and that petitioner’s case was prejudiced such that, but for counsel’s alleged errors, 

the result of the proceedings would have been different.

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As to counsel’s performance, the state 3.850 court analyzed LeGrande’s 

representation with respect to her investigation of several mitigation factors. 

Regarding family and background evidence, it found that before Krawczuk pled 

guilty, LeGrande had prepared two mitigation witnesses and that Krawczuk 

“appear[ed] . . . reasonably aware of what [they] would testify to.” It also found

that at the point of entering his plea, Krawczuk “was not just passively not 

cooperating with any investigation for mitigation but he was active in directing his 

counsel not to pursue mitigation.”

The state 3.850 court stated that the “only excuse that [would] be recognized 

for failing to investigate family background for mitigation [was] direct unequivocal 

instructions from the client not to.” It determined that LeGrande’s performance 

was deficient for failing to investigate Krawczuk’s family history and failing to 

obtain clear directions from Krawczuk not to pursue family history, stating:

[a]lthough it is probable that given Mr. Krawczuk’s position counsel 

acted reasonably in discontinuing an investigation into his family 

history the case law is extremely compelling on the need for an 

unequivocal expression from a defendant not to pursue this type of 

information. Permitting an investigation for mitigation and refusing 

to allow presentation of mitigation are closely related but different. In 

this case the record will not support the unequivocal direction to not 

investigate the court believes [was] required by the law as it existed at 

the time in question.

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As to all other aspects of LeGrande’s investigation—including relative culpability, 

substance abuse, work ethic, and mental health—the state 3.850 court found no 

deficiencies in LeGrande’s representation.

As to Strickland prejudice, the state 3.850 court outlined the requirements to 

establish prejudice where a defendant, like Krawczuk, waived the presentation of 

mitigating evidence. In such circumstances, the state 3.850 court found that the

Krawczuk must make three showings: (1) that, had trial counsel conducted a 

reasonable investigation, she would have discovered mitigating evidence; (2) a 

reasonable probability that, if he had been advised more fully of the available 

mitigation evidence, the petitioner would have instructed trial counsel to present 

the evidence at the penalty phase; and (3) a reasonable probability that, had the 

available mitigation evidence been presented, the jury would have recommended a 

life sentence.

As to the first showing, the state 3.850 court determined that obtaining 

physical and emotional abuse evidence from Krawczuk’s childhood would have 

been difficult, although not impossible, for LeGrande. Specifically, it noted that 

this would have required LeGrande to “rely on Mr. Krawczuk and[,] given his 

expressed desire not to involve his family[,] that most likely would have been a 

dead end.” However, “on this record” it could not find that the evidence of family 

history would not have been “discovered had counsel done a reasonable 

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investigation.” It found that all other evidence of mitigation was known to, 

developed by, or unhelpful for LeGrande.

As to the second showing, the state 3.850 court found that Krawczuk had not

shown “a reasonable probability that if he had been more fully advised about the 

potential mitigation evidence[,] he would have authorized trial counsel to present 

such evidence at either the penalty phase trial or at the Spencer hearing.” It noted 

that “[p]robably the best indication of how Mr. Krawczuk would have treated other 

mitigation was how he treated the known mitigation.” Namely, Krawczuk was 

aware of some available mitigating evidence, including Dr. Keown’s report and

Paul Wise’s testimony, but directed LeGrande not to develop it and, after initially 

conceding admission of Dr. Keown’s report, commanded her not to present any 

mitigation evidence at the penalty phase.

In support of his desire not to present mitigation evidence, Krawczuk 

“indicated he had personal reasons . . . [that he] did not want to put . . . on the 

record.” Likewise, his original acquiescence to introducing Dr. Keown’s report 

was “not a desire that mitigation be considered but that a death sentence not be 

reversed for a failure to present mitigation.” As additional evidence of his 

steadfast conviction, Krawczuk waived all of his defensive motions, including 

LeGrande’s motion for a mitigation specialist. In light of the firmness with which 

Krawczuk insisted that LeGrande not present a case at the penalty phase, the state 

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3.850 court determined that the discovery of more evidence would not have 

changed Krawczuk’s decision.

As to the third showing, whether Krawczuk established a reasonable 

probability that the new mitigating evidence would have changed the outcome of 

the proceedings, the state 3.850 court balanced the aggravating and mitigating 

evidence. It found that the State had proven these aggravating factors beyond a 

reasonable doubt: (1) the murder was committed during a robbery and for 

pecuniary gain; (2) the murder was especially heinous, atrocious, or cruel; and (3) 

the murder was cold, calculated, and premeditated without any pretense of moral 

or legal justification. Though the state 3.850 court found no statutory mitigating 

factors, it did find these non-statutory mitigators: (1) Krawczuk endured an 

abusive childhood; (2) Poirier received a lesser sentence; (3) Krawczuk had a 

history of drug and alcohol use; (4) Krawczuk was a hard-working employee; (5) 

Krawczuk had a less-than-extreme mental or emotional disturbance; and (6) 

Krawczuk cooperated with law enforcement.

Weighing these factors, the state 3.850 court determined that Krawczuk 

failed to show a reasonable probability that, had the additional mitigating evidence 

adduced at the postconviction hearing been presented at the penalty phase, the 

proceedings would have resulted in a sentence of life imprisonment. It noted twice 

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its confidence “beyond a reasonable doubt that a sentence of death would have 

been the result regardless.”

IV. FLORIDA SUPREME COURT AFFIRMS DENIAL OF 

3.850 MOTION

On appeal, the Florida Supreme Court affirmed the state postconviction 

court’s denial of Krawczuk’s 3.850 motion for postconviction relief.5

 Krawczuk 

II, 92 So. 3d at 209. As to Krawczuk’s claim that LeGrande rendered ineffective 

assistance of counsel in the investigation and presentation of mitigation evidence, 

the Florida Supreme Court concluded that the state 3.850 court properly denied this 

claim. Id. at 203.

Before addressing the merits of this claim, the Florida Supreme Court 

correctly identified the principles governing ineffective assistance of counsel 

claims. The Florida Supreme Court explained that, to succeed on such a claim, the 

petitioner must show both deficiency and prejudice:

First, the claimant must identify particular acts or omissions of the 

lawyer that are shown to be outside the broad range of reasonably 

competent performance under prevailing professional standards. 

Second, the clear, substantial deficiency shown must further be 

demonstrated to have so affected the fairness and reliability of the 

proceeding that confidence in the outcome is undermined.

Id. at 202 (quoting Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010)).

 

5

Krawczuk also filed with the Florida Supreme Court a petition for a writ of habeas 

corpus, which it denied. Krawczuk II, 92 So. 3d at 209. Though this habeas petition included an 

ineffective counsel claim, it related only to his appellate counsel’s failure to raise on direct 

appeal the issue of disparate treatment. Id. at 208.

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33

A. Performance

The Florida Supreme Court also explained what is required to show that 

counsel’s performance was deficient, stating:

There is a strong presumption that trial counsel’s performance was not 

deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair 

assessment of attorney performance requires that every effort be made 

to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the 

conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 

2052. The defendant carries the burden to “overcome the presumption 

that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial 

scrutiny of counsel’s performance must be highly deferential.” Id.

“[S]trategic decisions do not constitute ineffective assistance of 

counsel if alternative courses have been considered and rejected and 

counsel’s decision was reasonable under the norms of professional 

conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). 

Id. at 202–03 (quoting Johnson v. State, 63 So. 3d 730, 737 (Fla. 2011)).

Regarding counsel’s obligation to investigate and prepare mitigating 

evidence, the Florida Supreme Court explained that assessment of the 

reasonableness of counsel’s investigation must include “a context-dependent 

consideration of the challenged conduct” from counsel’s perspective, stating:

[O]ur principal concern in deciding whether [counsel] exercised 

“reasonable professional judgmen[t]” is not whether counsel 

should have presented a mitigation case. Rather, we focus on 

whether the investigation supporting counsel’s decision not to 

introduce mitigating evidence . . . was itself reasonable. In 

assessing counsel’s investigation, we must conduct an objective 

review of their performance, measured for “reasonableness 

under prevailing professional norms,” which includes a contextCase: 15-15068 Date Filed: 10/18/2017 Page: 33 of 63 
34

dependent consideration of the challenged conduct as see[n] 

“from counsel’s perspective at the time.”

Id. at 203 (quoting Orme v. State, 896 So. 2d 725, 731 (Fla. 2005)).

The Florida Supreme Court noted that, in cases like Krawczuk’s 

where the defendant instructs counsel not to present mitigating evidence, 

“trial counsel could not be deemed ineffective for following their client’s 

wishes not to present mitigation.” Id. at 205; Brown v. State, 894 So.2d 137, 

146 (Fla. 2004) (“An attorney will not be deemed ineffective for honoring 

his client’s wishes.”). At the outset of its decision, the Florida Supreme 

Court set forth some of the findings that the Florida Supreme Court had 

affirmed on direct appeal. As to those findings, the Florida Supreme Court 

noted in particular: that Krawczuk “informed the court that [he] wished to 

waive the penalty proceeding,” that he “forbade [his counsel] from 

presenting evidence on his behalf” during the penalty phase, and that he 

“refused to allow counsel to present” the evidence of his family history, 

which was available from Dr. Keown’s report. Krawczuk II, 92 So.3d at 

199, 205.

The Florida Supreme Court also stated that “the record demonstrates 

that Krawczuk would not permit his attorney to involve his family.” Id. at 

205. It stated that “counsel’s ability was limited by the defendant’s desire 

not to include his family.” Id. As a result, the Florida Supreme Court 

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concluded that “counsel’s actions could not be deemed ineffective.” Id.

(citing Brown, 894 S.2d at 146). Thus, the Florida Supreme Court did not 

agree with the 3.850 court that trial counsel’s performance was deficient as 

to family history.

B. Prejudice

The Florida Supreme Court also found that Krawczuk had not 

established prejudice. Although there was significant mitigation evidence 

available that LeGrande did not discover, the Florida Supreme Court 

concluded that it was “equally clear that Krawczuk repeatedly insisted that 

counsel not pursue mitigation and not involve his family.” Id. The Florida 

Supreme Court stated that “the postconviction court found that the 

information that would have been presented by the family was available 

through Dr. Keown’s report, which Krawczuk also refused to allow counsel 

to present” and that “[b]ecause of Krawczuk’s instructions to counsel not to 

involve his family, we find that Krawczuk cannot establish prejudice.” Id.

In other words, Krawczuk had Dr. Keown’s report, which discussed 

his childhood abuse and family history, but Krawczuk had refused to allow 

LeGrande to present even this evidence. Thus, the Florida Supreme Court 

determined that Krawczuk could not establish the requisite prejudice to 

succeed on this claim about LeGrande’s investigation and presentation of 

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mitigating evidence. Id. The Florida Supreme Court did not address the 

state 3.850 court’s alternative conclusion that all the additional mitigation 

evidence, even if introduced at trial, would not have led to a different 

sentence. See id.

V. FEDERAL HABEAS PROCEEDINGS

On July 18, 2013, Krawczuk filed a petition in the United States District 

Court for the Middle District of Florida seeking a writ of habeas corpus under 28 

U.S.C. § 2254. The petition asserted four claims, including that LeGrande 

rendered ineffective assistance of counsel in the investigation and presentation of 

mitigating evidence.

On August 15, 2015, the district court denied Krawczuk’s habeas petition in 

its entirety, including this ineffective counsel claim. The district court did not 

discuss whether LeGrande’s performance was deficient and addressed only 

prejudice.

6

 After reviewing the state courts’ decisions and all of the evidence, the 

district court concluded that Krawczuk had not established prejudice because

(1) “[t]he state court reasonably concluded that [Krawczuk] gave LeGrande 

unmistakable instructions not to present mitigation evidence” and (2) “[n]othing in 

the record suggests that [Krawczuk] would have changed his directions to counsel 

 

6

See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (holding that a court deciding a claim 

of ineffective assistance of counsel need not decide the issue of deficiency if the claim can be 

disposed of solely on the basis of lack of prejudice).

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37

had he been more full informed about mitigating evidence.” The district court 

pointed out that Krawczuk offered no evidence during the postconviction 

proceedings indicating that, had he been made aware of all mitigating evidence, he 

would have instructed counsel differently.

Accordingly, because the Florida Supreme Court had a reasonable basis to 

deny Krawczuk relief, the district court denied Krawczuk’s ineffective counsel 

claim. It also denied Krawczuk a certificate of appealability (“COA”). Krawczuk

timely filed a notice of appeal.

This Court granted Krawczuk a COA as to one issue: “Whether the Florida 

state courts’ ruling that counsel provided constitutionally effective assistance in 

investigating and presenting mitigation evidence at the penalty phase hearing was 

contrary to or an unreasonable application of clearly established federal law, or 

was based on an unreasonable determination of the facts in light of the evidence 

presented.”7

VI. STANDARD OF REVIEW

Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”), our review is limited. A federal court may 

only grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the 

 

7

To the extent that Krawczuk’s brief argues that he was denied competent and 

independent mental health assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 

(1985), such a claim is outside the scope of the COA and we do not address it. See Rivers v. 

United States, 777 F.3d 1306, 1308 n.1 (11th Cir. 2015).

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merits in a state court where the state court’s decision “was contrary to, or involved 

an unreasonable application of, clearly established Federal law, as determined by 

the Supreme Court of the United States,” or “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).

A state court’s decision rises to the level of an unreasonable application of 

federal law only where the ruling is “objectively unreasonable, not merely wrong; 

even clear error will not suffice.” Virginia v. LeBlanc, 582 U.S. __, __, 137 S. Ct. 

1726, 1728 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S. __, __, 135 S. 

Ct. 1372, 1376 (2015) (per curiam)). This standard is “meant to be” a difficult one 

to meet. Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011). 

AEDPA thus “imposes a highly deferential standard for evaluating state-court 

rulings and demands that state-court decisions be given the benefit of the doubt.” 

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012) (quoting 

Hardy v. Cross, 565 U.S. 65, 66, 132 S. Ct. 490, 491 (2011) (per curiam)). 

Because we review Krawczuk’s ineffective assistance claim through the lenses of 

both Strickland and AEDPA, our analysis is “doubly” deferential. Harrington, 562 

U.S. at 105, 131 S. Ct. at 788.

Pursuant to AEDPA, we may only grant relief where the state court’s ruling 

contained an error so clear that fair-minded people could not disagree about it. 

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39

Wright v. Sec’y, Fla. Dep’t of Corr., 761 F.3d 1256, 1277 (11th Cir. 2014). “We 

review de novo the district court’s decision about whether the state court acted 

contrary to clearly established federal law, unreasonably applied federal law, or 

made an unreasonable determination of fact.” Trepal, 684 F.3d at 1107 (quoting 

Johnson v. Upton, 615 F.3d 1318, 1330 (11th Cir. 2010)).

VII. STRICKLAND PRINCIPLES

On appeal, Krawczuk contends that the Florida Supreme Court unreasonably 

applied Strickland and its progeny and made unreasonable factual determinations 

in denying his ineffective counsel claim as to LeGrande’s investigation and 

presentation of mitigation evidence. Under Strickland, Krawczuk must show 

(1) that his attorney’s performance was deficient and (2) that this deficient 

performance prejudiced his defense. 466 U.S. at 687, 104 S. Ct. at 2064. We 

discuss these Strickland principles with emphasis on decisions where a defendant

instructed counsel not to present mitigation evidence.

A. Performance

In determining whether counsel’s performance was deficient, we ask 

whether counsel exhibited “objectively reasonable attorney conduct under 

prevailing professional norms.” Pooler v. Sec’y, Fla. Dep’t of Corr., 702 F.3d 

1252, 1269 (11th Cir. 2012) (quoting Johnson v. Upton, 615 F.3d 1318, 1330 (11th 

Cir. 2010)). The relevant inquiry is “whether, in light of all the circumstances, the 

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identified acts or omissions were outside the wide range of professionally 

competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. We must 

“indulge a strong presumption” that counsel exercised reasonable professional 

judgment. Pooler, 702 F.3d at 1269 (quoting Rhode v. Hall, 582 F.3d 1273, 1280 

(11th Cir. 2009)).

In death penalty cases, trial counsel is obliged to investigate and prepare 

mitigation evidence for his client. See Porter v. McCollum, 558 U.S. 30, 39–40, 

130 S. Ct. 447, 453 (2009). Because the attorney acts based on information he 

receives from the defendant, however, whether counsel acted reasonably depends 

in part on the actions or statements of the defendant. See Strickland, 466 U.S. at 

691, 104 S. Ct. at 2066 (“The reasonableness of counsel’s actions may be 

determined or substantially influenced by the defendant’s own statements or 

actions.”). Thus, “ʻwhat investigation decisions are reasonable depends critically’ 

upon the information the defendant furnishes to his counsel.” Pooler, 702 F.3d at 

1269 (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). “[T]he scope of the 

duty to investigate mitigation evidence is substantially affected by defendant’s 

actions, statements, and instructions.” Cummings v. Sec’y, Dep’t of Corr., 588 

F.3d 1331, 1357 (11th Cir. 2009).

When a competent defendant clearly instructs counsel either not to 

investigate or not to present any mitigating evidence, “the scope of counsel’s duty 

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41

to investigate is significantly more limited than in the ordinary case.” Id. at 1358–

59. This Court has recognized, and we now hold, that “the duty to investigate 

‘does not include a requirement to disregard a mentally competent client’s sincere 

and specific instructions about an area of defense and to obtain a court order in 

defiance of his wishes.’” Id. at 1357 (quoting Rutherford v. Crosby, 385 F.3d 

1300, 1313 (11th Cir. 2004)); see Blankenship v. Hall, 542 F.3d 1253, 1277 (11th 

Cir. 2008) (“Significant deference is owed to failures to investigate made under a 

client’s specific instructions not to involve his family.”); Newland v. Hall, 527 

F.3d 1162, 1202 (11th Cir. 2008) (“We have also emphasized the importance of a 

mentally competent client’s instructions in our analysis of defense counsel’s 

investigative performance under the Sixth Amendment.”).

B. Prejudice

To establish prejudice, the defendant must show that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 

2068. When deciding whether the defendant has shown prejudice, we must 

“evaluate the totality of the available mitigation evidence—both that adduced at 

trial, and the evidence adduced in the habeas proceeding,” and reweigh it with the 

aggravating evidence. Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct. 1495, 

1515 (2000).

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However, “[a] competent defendant’s clear instruction not to investigate or 

present mitigation evidence also impacts the prejudice prong of the ineffective 

assistance test.” Cummings, 588 F.3d at 1359. If the defendant affirmatively

“instructed his counsel not to offer any mitigating evidence,” then “counsel’s 

failure to investigate further could not have been prejudicial under Strickland.” 

Schriro v. Landrigan, 550 U.S. 465, 475, 127 S. Ct. 1933, 1941 (2009).

Rather, to establish Strickland prejudice after instructing counsel not to 

present mitigating evidence at trial, we hold that a capital defendant must satisfy 

two requirements: (1) establish a reasonable probability that, had he been more 

fully advised about the available mitigation evidence, he would have allowed trial 

counsel to present that evidence at the penalty phase; and (2) establish a reasonable 

probability that, if such evidence had been presented at the penalty phase, the jury 

would have concluded that the balance of the aggravating and mitigating factors 

did not warrant the death penalty. Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944;

see Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1266 (11th Cir. 2014)

(concluding that a capital defendant who instructs his counsel not to present 

mitigating evidence must satisfy these two requirements to show prejudice);

Gilreath, 234 F.3d at 551–52 (adopting these two requirements even before the

Landrigan decision). The defendant bears the burden of establishing both 

elements. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069; Pope, 752 F.3d at 1267.

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We now apply these Strickland and Landrigan principles, which in

Krawczuk’s case begins and ends with prejudice. Strickland, 466 U.S. at 697, 104 

S. Ct. at 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground 

of lack of sufficient prejudice . . . that course should be followed.”).

C. The Florida Supreme Court Reasonably Determined Krawczuk 

Instructed LeGrande Not to Present Mitigating Evidence

Krawczuk’s instructions to his counsel regarding the penalty phase are

pivotal to our prejudice analysis. We explain why the Florida Supreme Court 

reasonably determined that Krawczuk instructed his counsel not to present 

mitigating evidence.

The record evidence overwhelmingly supports the state court’s decision. 

For starters, at three separate judicial proceedings, Krawczuk repeatedly insisted 

that he did not want mitigation evidence presented. For example, at his plea 

hearing, Krawczuk clearly communicated his desire not to present mitigating

evidence and affirmatively dismissed his counsel’s motion for funds to hire a 

mitigation expert. At that same hearing, LeGrande stated that Krawczuk had 

instructed her not to present mitigating evidence despite her strong advice to the 

contrary. LeGrande told the court she had prepared two mitigation witnesses but 

Krawczuk had forbidden her to call these witnesses and was “thwarting [her] 

efforts to defend [him] in the way [she felt was] necessary.” The state trial court 

was convinced that Krawczuk was competent during this hearing.

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At this time, Krawczuk had Dr. Keown’s report that contained details of 

Krawczuk’s abusive childhood, military psychiatric report, and past encounters 

with the law. LeGrande informed the court she had told Krawczuk that she 

believed it was in his best interest to call Dr. Keown but Krawczuk had 

commanded her not to call him.

After the plea hearing, in a letter dated September 30, 1991 to LeGrande, 

Krawczuk again confirmed that he did not wish to present mitigating evidence, 

stating that his goal was to receive a death sentence. Krawczuk’s letter indicated

his understanding that he could more easily secure a death sentence by ensuring 

that the aggravating circumstances outweighed any evidence in his favor.

The penalty phase before the jury was no different, as Krawczuk once again 

averred that he wished not to present mitigating evidence and that he was 

instructing LeGrande not to participate in the penalty phase proceedings. The one 

concession Krawczuk made to his lawyer’s wishes was calculated to ensure a death 

sentence. Krawczuk allowed LeGrande to make a closing argument but only “for 

the purpose of preventing a reversal on the fact that no mitigating circumstances 

[were] introduced.” Krawczuk also declined to testify.8

 

8

Before the jury entered the courtroom at the penalty hearing on February 5, 1992, 

prompting by the court led Krawczuk to state that he was “willing to let [LeGrande]” present 

mitigating evidence, and that “part of [Dr. Keown’s] report would be good.” But this concession 

was quickly followed by a strong caveat. LeGrande relayed to the court that Krawczuk’s “desire 

to have [the report] admitted has nothing to do with attempting to sway the jury on mitigating 

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Once again, at the subsequent Spencer sentencing hearing before the trial 

judge, LeGrande stated that Krawczuk had instructed her not to present any 

mitigating evidence. Krawczuk again refused to introduce Dr. Keown’s report or 

provide his own comments in support of mitigation.

In light of this substantial evidence, the Florida Supreme Court’s 

determination, that Krawczuk instructed his counsel not to present mitigating 

evidence, was not an unreasonable determination of the facts. Given this finding, 

we next explain why the Florida Supreme Court’s ultimate decision—that 

Krawczuk had not established prejudice—was not contrary to or an unreasonable 

application of clearly established law.

D. Krawczuk Did Not Satisfy Landrigan’s First Requirement

To establish prejudice, Krawczuk must satisfy the first Landrigan

requirement: a reasonable probability that, had he been more fully advised about 

the available mitigation evidence, he would have allowed counsel to present it on 

 

circumstances.” Krawczuk still “desire[d] to have the death penalty imposed . . . [and was] just 

attempting to prevent tying [LeGrande’s] hands to the point . . . that the Appellate Court would 

overturn a death penalty.”

When questioned by the trial court, Krawczuk confirmed his strategy. Regardless, this 

permission was short lived. When the court agreed to admit Dr. Keown’s report, Krawczuk told 

LeGrande that he had changed his mind. The court then asked Krawczuk if “that [was his] final 

word on the matter,” to which Krawczuk responded, “Yes, it is.” Krawczuk also affirmatively 

replied when the court again sought clarification that Krawczuk did not “want to present any 

mitigating evidence [or] . . . testify as to additional mitigating evidence.” Finally, Krawczuk 

confirmed that he understood the consequences of his actions and that he wished to waive 

closing argument.

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his behalf. Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944; Strickland, 466 U.S. at 

696, 104 S. Ct. at 2069. Krawczuk’s pattern of obstruction gave the Florida 

Supreme Court every reason to determine that Krawczuk could not show prejudice. 

Krawczuk rejected his counsel’s presentation of mitigation evidence at three 

separate judicial proceedings, openly sought the death penalty, and repeatedly 

undercut LeGrande’s strategy. His actions were not taken in ignorance. LeGrande 

had advised Krawczuk of the importance of mitigation evidence, and Krawczuk 

possessed Dr. Keown’s report. 

Later, during the 3.850 proceedings, Krawczuk presented no evidence 

indicating that, had he been made aware of the available mitigation evidence 

before the penalty phase, he would have allowed LeGrande to present it. Notably, 

the record is devoid of any affidavit, deposition, or statement from Krawczuk, 

LeGrande, the mental health experts, or Krawczuk’s friends and family even 

suggesting that Krawczuk would have instructed LeGrande differently had he been 

fully aware of all the available mitigation evidence.

In this appeal, Krawczuk contends that the Florida Supreme Court 

unreasonably applied Strickland by overlooking evidence indicating that there was 

a reasonable probability that he would have allowed the presentation of mitigation 

evidence. Krawczuk points to evidence showing that he cooperated with 

Dr. Keown, volunteered details about his military service, signed releases for 

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counsel to obtain psychological information about his military service, offered 

general information about his wife and family, and at one point wavered slightly 

about mitigation evidence. As this Court recognized in Pope, however, the 

petitioner’s burden to prove prejudice, as required under Strickland and Landrigan, 

cannot be met with evidence showing merely that the petitioner cooperated with 

counsel’s efforts to investigate his personal background and that he at one point 

was open to presenting some mitigation evidence. Pope, 752 F.3d at 1266–67.

Rather, Krawczuk must “affirmatively establish” that he would have allowed 

the presentation of the undiscovered mitigation evidence. Id. at 1267. To hold that 

evidence of cooperation alone is sufficient would be to “reverse[] [Krawczuk’s]

burden.” Id. The record as a whole gave the Florida Supreme Court ample

grounds to conclude that Krawczuk had no interest in actually employing any 

mitigation evidence. He repeatedly stated that he sought the death penalty, wished 

to avoid reversal on appeal, and opposed the presentation of mitigation evidence. 

If anything, Krawczuk’s early cooperation in producing mitigation evidence makes 

his later suppression of this information all the more voluntary and meaningful. 

Simply put, because Krawczuk did not offer evidence affirmatively showing

that he would have been willing to allow LeGrande to present the mitigation 

evidence that was uncovered during the 3.850 proceedings, he has not satisfied 

Landrigan’s first requirement and is not entitled to habeas relief. See Landrigan, 

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550 U.S. at 481, 127 S. Ct. at 1944; Strickland, 466 U.S. at 696, 104 S. Ct. at 2069; 

Pope, 752 F.3d at 1266–67.

E. Krawczuk Did Not Satisfy Landrigan’s Second Requirement

Even under de novo review, we hold that Krawczuk has failed to satisfy 

Landrigan’s second prejudice requirement that a petitioner must establish a 

reasonable probability that, had the available mitigating evidence been presented at 

the penalty phase, he would have received a life sentence instead of the death 

penalty. See Strickland, 466 U.S. at 696, 104 S. Ct. at 2069; Landrigan, 550 U.S. 

at 481, 127 S. Ct. at 1944. As an alternative and independent ground for the denial 

of Krawczuk’s ineffective counsel claim, we conclude that, after balancing the 

totality of the available mitigation evidence against the aggravating evidence, 

Krawczuk has not shown that he would have received a different sentence had the 

available mitigation evidence been presented.

The state trial court found three statutory aggravating factors: (1) the 

murder was committed during a robbery and for pecuniary gain; (2) the murder 

was especially heinous, atrocious, or cruel; and (3) the murder was cold, 

calculated, and premeditated without any pretense of moral or legal justification. 

Krawczuk does not argue that these findings were error.

As to statutory mitigating factors, we recognize that Krawczuk’s mental 

health experts, Dr. Crown and Dr. Sultan, testified that Krawczuk was under the 

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influence of an extreme mental or emotional disturbance and was incapable of 

conforming his conduct to the requirements of the law. However, the state 3.850

court discounted the testimony of both mental health experts, and Krawczuk does 

not challenge this credibility determination as unreasonable. 

This leaves only Krawczuk’s non-statutory mitigating factors. We further

recognize that there is evidence that Krawczuk: (1) was abandoned by his father; 

(2) was isolated during childhood; (3) was not supervised during his childhood; (4) 

sustained neuropsychological damage; (5) had mental disorders; (6) endured 

emotional and physical abuse; (7) experienced depressive symptoms; and 

(8) suffered sexual abuse on one occasion by strangers.

However, under de novo review, we readily conclude that Krawczuk failed 

to establish a reasonable probability that, had he presented the above mitigating 

evidence, the outcome of the proceedings would have been different. See

Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944; Williams, 529 U.S. at 397–98, 120 

S. Ct. at 1515. In reaching this conclusion, we weigh the totality of the mitigating 

evidence against the aggravating factors, considering the substantial weight due to 

aggravation in light of the brutal nature of Staker’s murder.

Though the mitigating evidence discovered after Krawczuk’s sentencing 

would have painted a more robust picture of the emotional and physical abuse and 

tragic difficulties that Krawczuk faced during his childhood, the sentencing judge 

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was already aware, from Dr. Keown’s report, that Krawczuk was subjected to 

some amount of serious emotional and physical abuse during his life. The more 

fulsome details of these childhood difficulties would not have been sufficient to 

overcome the severe aggravation inherent in the nature of Staker’s murder. The 

evidence adduced at the penalty phase, and especially through Krawczuk’s 

confession, establish that he planned for several days to murder Staker with his 

own bare hands and that he did so not only to profit from selling goods stolen from 

Staker’s home, but also because of his disdain for Staker’s sexual preferences. The 

method of Krawczuk’s crime was particularly brutal. Krawczuk choked Staker for 

ten minutes before twice pouring drain cleaner down Staker’s throat and taping a 

cloth over his mouth. This Court has upheld death sentences in other gruesome 

murder cases. See, e.g., Boyd v. Allen, 592 F.3d 1274, 1303–04 (11th Cir. 2010); 

Clisby v. State, 26 F.3d 1054, 1057 (11th Cir. 1994); Thompson v. Wainwright, 

787 F.2d 1447, 1453–54 (11th Cir. 1986). Notably, there is no evidence of 

intellectual deficiency here, but rather powerful and substantial evidence of a 

carefully planned and brutal torture of Staker. Krawczuk’s cruelty and 

premeditation make it unlikely that he would have received a different sentence.

In light of all the available evidence considered as a whole, it is not 

reasonably probable that the presentation of Krawczuk’s entire mitigating evidence 

would have resulted in the imposition of a life sentence rather than the death 

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penalty. In these circumstances, the presentation of new mitigating evidence 

“would barely have altered [Krawczuk’s] sentencing profile.” See Strickland, 466 

U.S. at 700, 104 S. Ct. at 2071.

On appeal, Krawczuk argues that the Florida Supreme Court failed to 

conduct any balancing of all mitigating and aggravating factors, and thus 

unreasonably applied Strickland in making its ultimate prejudice determination. 

See Porter v. McCollum, 558 U.S. 30, 42–43, 130 S. Ct. 447, 454–55 (2009). It is 

true, as Krawczuk notes, that the Florida Supreme Court did not explicitly address 

the available mitigation evidence or weigh it against the aggravating evidence in 

reaching its prejudice decision. But this seems to be the case because the Florida 

Supreme Court determined that Krawczuk would not have allowed his counsel to 

present mitigation evidence. Krawczuk II, 92 So. 3d at 205. 

Krawczuk’s failure to meet this first prejudice requirement under Landrigan

is sufficient to support the Florida Supreme Court’s ultimate determination that 

Krawczuk did not establish prejudice. The Florida Supreme Court thus did not 

need to address the second requirement of the Landrigan prejudice analysis, which 

requires the petitioner to show that, had the mitigating evidence been presented, 

the outcome of the proceedings would have been different. Accordingly, because

Krawczuk did not establish a reasonable probability that he would have allowed 

the presentation of mitigating evidence, the Florida Supreme Court did not act 

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unreasonably by failing to weigh the totality of the mitigating and aggravating 

evidence. Where it is clear that mitigating evidence would not have actually been 

presented to the jury, that alone means there is no prejudice. See Gilreath, 234 

F.3d at 551 n.12 (“If Petitioner would have precluded [the] admission [of 

mitigating evidence] in any event, Petitioner was not prejudiced by anything that 

trial counsel did.”).

In sum, on this record and even under de novo review, we hold that

Krawczuk has not shown a reasonable probability that, had he presented all 

mitigating evidence, the outcome of the proceedings would have been different.

F. The Decision of the Florida Supreme Court Was Not Unreasonable as to 

Investigation of Mitigating Evidence

Before concluding, we address Krawczuk’s several separate claims about his 

trial counsel’s investigation and why they are immaterial and irrelevant to the 

prejudice analysis.

Krawczuk argues that the Florida Supreme Court made an unreasonable 

determination of fact by concluding that Krawczuk instructed LeGrande not to 

investigate mitigating evidence. In particular, Krawczuk points to the Florida 

Supreme Court’s statements that “Krawczuk would not permit his attorney to 

involve his family” and that he “repeatedly insisted that counsel not pursue 

mitigation and not involve his family.” Krawczuk II, 92 So. 3d at 205. According 

to Krawczuk, these determinations made by the Florida Supreme Court are at odds 

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with the state 3.850 court’s findings that “the record will not support the 

unequivocal direction to not investigate” mitigating evidence and that “counsel’s 

performance was deficient in failing to purs[u]e further investigation of the family 

history or to obtain clear direction from Mr. Krawczuk that she was not to do so.”

The problem for Krawczuk is the issue of LeGrande’s investigation of 

mitigating evidence is not essential or even material to the Florida Supreme 

Court’s conclusion that Krawczuk failed to establish prejudice. Given the record 

shows Krawczuk told his counsel not to present mitigation evidence, this precludes 

any need to examine the scope of counsel’s investigation.

“[I]f a petitioner ‘instructed his counsel not to offer any mitigating 

evidence,’ then ‘counsel’s failure to investigate further could not have been 

prejudicial under Strickland.’” Pope, 752 F.3d at 1265 (quoting Landrigan, 550 

U.S. at 475, 127 S. Ct. at 1940–41). “This principle rests on the theory that an 

obstructionist client would have prevented the introduction of any mitigation 

evidence that may have been discovered from a fuller search.” Pope, 752 at 1265–

66. The Supreme Court has never held that trial counsel must still undertake to 

investigate mitigating evidence where a competent defendant affirmatively and 

repeatedly instructs his attorney not to present mitigating evidence because he 

wants the death sentence. Rather, under Landrigan, the first requirement assumes 

that a defendant was more fully advised of the mitigation evidence and asks 

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whether the defendant has shown he would have allowed counsel to present it. See

550 U.S. 479–81, 127 S. Ct. at 1942–44. Krawczuk has not satisfied that 

requirement.

The Supreme Court also has “never imposed an ‘informed and knowing’ 

requirement upon a defendant’s decision not to introduce evidence.” Id. at 479. 

Therefore, because Krawczuk issued unmistakable instructions to his attorney not 

to present any mitigation evidence, his trial counsel’s lack of investigation is 

immaterial to the prejudice analysis.

Furthermore, while Krawczuk’s instructions regarding the investigation of 

mitigating evidence are relevant to the deficiency prong of the Strickland analysis, 

the Florida Supreme Court’s decision rested not on the deficiency vel non of 

counsel’s performance, but rather on the independent conclusion that Krawczuk 

failed to establish prejudice. Krawczuk II, 92 So. 3d at 205. For purposes of 

establishing prejudice under the circumstances presented here, the inquiry depends 

only on (1) whether the defendant instructed his counsel not to present mitigating 

evidence and (2) whether the defendant has satisfied the two Landrigan

requirements. See Landrigan, 550 U.S. at 481, 127 S. Ct. at 1944 (concluding that 

the petitioner was not entitled to habeas relief because the petitioner “would not 

have allowed counsel to present any mitigating evidence” and “the mitigating 

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evidence he seeks to introduce would not have changed the result” (emphasis 

added)).

The distinction between instructions not to investigate and instructions not to 

present mitigating evidence is underscored by the United States Supreme Court’s 

above-quoted observation in Landrigan that, if the defendant “instructed his 

counsel not to offer any mitigating evidence,” then “counsel’s failure to investigate

further could not have been prejudicial under Strickland.” Id. at 475, 127 S. Ct. at 

1941; see Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 763–64 (11th Cir. 

2010) (applying Landrigan and concluding that, in light of the defendant’s decision 

not to present mitigating evidence, counsel’s failure to conduct pre-waiver 

investigation of mitigating evidence was not prejudicial). To some extent, 

Krawczuk’s reply brief acknowledges the distinction, stating that issues pertaining 

to investigation of mitigation and presentation of mitigation “are closely related but 

different.”

Accordingly, whether or not the Florida Supreme Court unreasonably 

determined that Krawczuk instructed LeGrande not to investigate mitigating 

evidence is not relevant to the outcome of the prejudice analysis in his case. What 

matters for purposes of prejudice is whether Krawczuk instructed counsel not to 

present mitigating evidence.

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Relatedly to the issue of LeGrande’s investigation of mitigating evidence, 

we also reject Krawczuk’s argument that his waiver of the opportunity to present

mitigation evidence was not sufficiently informed and knowing because LeGrande 

conducted only a limited pre-waiver investigation of mitigating evidence. 

In Landrigan, the United States Supreme Court noted that it has “never imposed an 

‘informed and knowing’ requirement upon a defendant’s decision not to introduce 

evidence.” 550 U.S. at 479, 127 S. Ct. at 1942. Krawczuk identifies no Supreme 

Court authority post-Landrigan indicating that a competent capital defendant’s 

decision not to present any mitigating evidence may be informed or knowing only 

if trial counsel first thoroughly or even adequately investigates the mitigating 

evidence and tells her client about it. To the contrary, there is no such 

investigation requirement in this type of case where the defendant instructs his 

counsel not to present mitigation evidence.

VIII. CONCLUSION

For all of the foregoing reasons, we conclude that Krawczuk is not entitled 

to habeas relief on his ineffective assistance of counsel claim as to mitigating 

evidence in the penalty phase and affirm the district court’s denial of Krawczuk’s 

§ 2254 petition.

AFFIRMED.

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MARTIN, Circuit Judge, concurring in the judgment:

I concur in the result reached by the majority because binding circuit 

precedent precludes relief for Mr. Krawczuk here.1

 This Court’s rule is that a 

defendant who instructs his attorney not to present mitigating evidence at trial 

“must make two showings” to demonstrate prejudice in support of an ineffective 

assistance of counsel claim. Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000). 

First, the defendant must show “a reasonable probability that—if [he] had been 

advised more fully about [mitigating] evidence or if trial counsel had requested a 

continuance—[he] would have authorized trial counsel to permit such evidence at 

sentencing.” Id. at 551. Second, he must show that “if such evidence had been 

presented at sentencing, a reasonable probability exists that the jury would have 

concluded that the balance of aggravating and mitigating circumstances did not 

warrant death.” Id. at 552 (quotation omitted). My review of the record reflects 

that Mr. Krawczuk failed to make these showings.

 

1 I have some doubt that the Florida Supreme Court’s decision warrants deference under 

the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). The 

Florida Supreme Court based its decision—at least in part—on Mr. Krawczuk’s “repeated[] 

instist[ence] that counsel not pursue mitigation and not involve his family.” Krawczuk v. State, 

92 So. 3d 195, 205 (Fla. 2012). My review of the record has revealed no evidence that Mr. 

Krawczuk instructed counsel not to involve his family. The most compelling evidence to this 

effect is trial counsel’s testimony at the post-conviction hearing that Mr. Krawczuk “kind of 

wanted to leave his family out of it.” My doubts make no difference to Mr. Krawczuk, however. 

Even if we set aside the Florida Supreme Court decision and conduct our own de novo review of 

his claims, Mr. Krawczuk still would not, in my view, win this appeal.

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This Court has said the rule established in Gilreath “is consistent with” the 

Supreme Court’s decision in Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933 

(2007).2 Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1360 (11th Cir. 

2009). Therefore, Mr. Krawczuk can succeed on his ineffective assistance claim 

only if he demonstrates a reasonable probability that, if he had been more fully 

 

2 Of course, saying a rule established by our Court is consistent with Supreme Court 

precedent is different from saying that the rule is required by Supreme Court precedent. I fear 

the majority treats Gilreath’s two-part prejudice standard as being required under Landrigan in 

every case where a defendant tells his lawyer he does not want to present mitigation. See Maj. 

Op. at 42, 45. The Supreme Court’s decision in Landrigan was not so broad. 

Mr. Landrigan actively interfered with his counsel’s efforts to present mitigation by 

“repeatedly [interrupting] when counsel tried to proffer anything that could have been considered 

mitigating,” regardless of its form. Landrigan, 550 U.S. at 476, 127 S. Ct. at 1941 (emphasis 

added). Applying AEDPA’s deferential standard of review, the Supreme Court decided that the 

state court reasonably determined “that Landrigan would have undermined the presentation of 

any mitigating evidence that his attorney might have uncovered.” Id. at 477, 127 S. Ct. at 1941. 

Thus the Supreme Court held, in turn, that the District Court did not abuse its discretion when it 

found that Mr. Landrigan would have refused to allow his counsel to present any mitigation 

whatsoever and for that reason failed to show prejudice. Id. at 477, 127 S. Ct. at 1942.

Landrigan did not, however, establish a rule that if any defendant tells his lawyer he 

wants no mitigation presented, he can never show prejudice under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052 (1984), unless he satisfies the two-part test required under Gilreath. 

See Blystone v. Horn, 664 F.3d 397, 424–26 (3d Cir. 2011) (limiting Landrigan to cases where 

the defendant has demonstrated a strong determination not to present any mitigating evidence, 

and concluding “[t]he fact that [the defendant] chose to forego the presentation of his own 

testimony and that of [] two family members . . . simply does not permit the inference that, had 

counsel competently investigated and developed expert mental health evidence and institutional 

records, [the defendant] would have also declined their presentation”). To the extent that the 

majority’s opinion equates the requirements of our circuit’s precedent with that of the Supreme 

Court’s precedent, I believe it is mistaken. 

I also disagree with the majority’s suggestion that trial counsel’s duty to perform a 

constitutionally adequate mitigation investigation is obviated by a defendant’s communication to 

his attorney that he does not wish to present mitigation. See Maj. Op. at 53. Landrigan never 

addressed the performance prong of Strickland, and so it did nothing to alter trial counsel’s 

perennial “obligation to conduct a thorough investigation of the defendant’s background.” 

Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1515 (2000). Again however, even 

setting these problems aside, I don’t believe Mr. Krawczuk can prevail in this appeal. 

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advised about the mitigating evidence and its significance, he would have allowed 

trial counsel to present the evidence at sentencing. Mr. Krawczuk presented no 

such evidence. That means, under the law of this circuit, he cannot meet his 

burden to show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052 (1984). 

Because Mr. Krawczuk’s failure to present evidence that he would have 

allowed presentation of a mitigation case is dispositive of his claim, there is no 

need for the panel to reach the second prong of the prejudice inquiry. See Conner 

v. GDCP Warden, 784 F.3d 752, 769 & n.17 (11th Cir. 2015). The majority’s 

discussion of this topic is therefore unnecessary. I mention this because I 

respectfully disagree with how the majority resolved this issue, once it undertook 

to decide it. Like the majority, I look at this question de novo. See Maj. Op. at 49. 

For me, there is certainly a reasonable probability that, if the available mitigation 

evidence had been presented, Mr. Krawczuk would have received a life sentence.3

 

 

3

In reviewing the record in this case, I became troubled by an issue related to Mr. 

Krawczuk’s failure to present a mitigation case, which is not before the court in this appeal. 

There is an indication that Mr. Krawczuk may have been misguided by his trial counsel’s 

statements, to think that he would only be allowed to present mitigation evidence if he agreed to 

testify. In a letter dated March 8, 1991, counsel advised Mr. Krawczuk on what she believed 

were potential mitigating factors, and wrote that some of the mitigation “will depend upon your 

testimony at trial and the findings of Dr. Keown.” Then at the jury trial on penalty, when the 

trial judge asked if counsel would be making a closing argument, she replied that no mitigating 

evidence had been presented and so “it would be necessary for [Mr. Krawczuk] to take the stand 

to present the mitigating evidence” in order for her to make an argument based on mitigation. 

There is, of course, no requirement under state or federal law that a defendant must 

testify in order to present mitigation evidence in his capital trial. Therefore, if trial counsel 

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At the postconviction evidentiary hearing, several witnesses testified to the 

“catastrophic” emotional and physical abuse Mr. Krawczuk experienced 

throughout his childhood. This testimony described the constant physical violence 

Mr. Krawczuk received at the hands of his “brutal” mother. There was testimony 

that she used Mr. Krawczuk as her “whipping post” and punished him by holding 

his hand to a hot stove burner. Witnesses also told of the severe emotional abuse 

and neglect Mr. Krawczuk experienced. His mother made fun of his ears, calling 

him “Dumbo, the flying fucking elephant,” and she “never showed any kind of 

affection or love to [him.]” When Mr. Krawczuk would sometimes soil or wet 

himself as a child, his mother would force him to wear the soiled garments on his 

head or, on one occasion, stand in front of his home wearing a sign that said “I do 

my doodie in my pants every day.” 

Mr. Krawczuk also presented testimony from two mental health experts. Dr. 

Barry Crown testified that Mr. Krawczuk had brain damage resulting in impaired 

reasoning and judgment and that his mental processing abilities were at the level of 

a thirteen-year-old. According to Dr. Crown, these mental problems impaired Mr. 

Krawczuk’s ability to understand the long-term effects of his behavior. Dr. Faye 

 

improperly indicated to Mr. Krawczuk that he was required to testify at the penalty phase in 

order to introduce mitigation, this would constitute deficient performance. See Hinton v. 

Alabama, 571 U.S. ___, 134 S. Ct. 1081, 1089 (2014) (“An attorney’s ignorance of a point of 

law that is fundamental to his case combined with his failure to perform basic research on that 

point is a quintessential example of unreasonable performance under Strickland.”).

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Sultan testified that Mr. Krawczuk suffered from a cognitive disorder that resulted 

in decreased impulse control, impaired reasoning, and learning problems. She 

testified that this “overriding blanket of dysfunction” influenced “all of his 

behavior.” 

None of this testimony was rebutted. And all of it was clearly relevant 

mitigation. See Porter v. McCollum, 558 U.S. 30, 41–43, 130 S. Ct. 447, 454–55 

(2009) (considering evidence of defendant’s “brain abnormality and cognitive 

defects” as relevant mitigation); Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct. 

1495, 1515 (2000) (“[T]he graphic description of Williams’[s] childhood, filled 

with abuse and privation . . . might well have influenced the jury’s appraisal of his 

moral culpability.”); Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 2947 

(1989) (“[E]vidence about the defendant’s background and character is relevant 

because of the belief, long held by this society, that defendants who commit 

criminal acts that are attributable to a disadvantaged background, or to emotional 

and mental problems, may be less culpable than defendants who have no such 

excuse.” (quotation omitted)).

Yet the jury who recommended that Mr. Krawczuk be put to death heard 

nothing in mitigation—not even a bare plea for mercy from trial counsel. Mr. 

Krawczuk’s lawyer spoke not a word to the jury about what penalty to impose. At 

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the Spencer hearing before the trial judge,4 counsel again offered no mitigating 

evidence or argument. That meant all the sentencing judge had to aid him in 

arriving at the sentence for Mr. Krawczuk was the presentence investigation report 

and a seven-page report from Dr. Richard Keown, who was the psychiatrist who 

conducted a pretrial competency evaluation. The psychiatric report referred to Mr. 

Krawczuk’s abusive upbringing, but—as the state postconviction court found—it 

did not “contain the quality of the evidence regarding his mother’s abuse that was 

later brought out in the evidentiary hearing.” 

Thus, this is not a case where the new mitigation evidence “would barely 

have altered the [defendant’s] sentencing profile.” Strickland, 466 U.S. at 700, 104 

S. Ct. at 2071. Under Florida law at the time, the trial judge was required to give 

the jury’s advisory verdict on the sentence “great weight.” See Hurst v. Florida, 

577 U.S. ___, 136 S. Ct. 616, 620 (2016) (quotation omitted).5 At trial, the jury 

heard nothing that would humanize Mr. Krawczuk or help put into context the 

horrible crime he committed. If the available mitigation had been presented, the 

jury would have learned of “the kind of troubled history [the Supreme Court] ha[s] 

 

4 Under Florida law, a Spencer hearing gives the defendant, his counsel, and the State the 

opportunity to be heard and to present additional evidence to the sentencing judge after the jury 

has offered its recommendation. See Spencer v. State, 615 So. 2d 688, 691 (Fla.1993) (per 

curiam).

5 Florida has since amended its capital sentencing scheme, and the Florida Supreme Court 

has held that “in order for the trial court to impose a sentence of death, the jury’s recommended 

sentence of death must be unanimous.” Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) (per 

curiam).

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declared relevant to assessing a defendant’s moral culpability.” Wiggins v. Smith, 

539 U.S. 510, 535, 123 S. Ct. 2527, 2542 (2003). It would have also learned of 

Mr. Krawczuk’s brain damage and mental problems. I recognize that Mr. 

Krawczuk committed a terrible crime. But if the jury had heard the available 

mitigating evidence, there is surely a reasonable probability that it would have 

recommended a life sentence. See Porter, 558 U.S. at 41–44, 130 S. Ct. at 453–55

(considering the probable effect of the unpresented mitigation on the jury’s 

recommended sentence). This recommendation would have been entitled to “great 

weight” by the sentencing judge, who would have also heard the true extent of the 

abuse Mr. Krawczuk suffered throughout his childhood and learned of his mental 

impairments. On this record, I believe Mr. Krawczuk has demonstrated a 

reasonable probability of a different outcome. Because the majority and I come to 

a different conclusion on the issue of whether Mr. Krawczuk was prejudiced by 

having no mitigation case presented, I cannot join its opinion.

As to whether Mr. Krawczuk can prevail in this appeal, however, I must 

agree with the majority that he cannot. 

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