FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 10, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15876

________________________

D. C. Docket No. 04-01378-CV-ORL-28KRS

CURTIS WINDOM,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 10, 2009)

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
Petitioner Curtis Windom, sentenced to death for the first-degree murders of

Johnnie Lee, Valerie Davis, and Mary Lubin, appeals the orders of the district

court denying his petition for a writ of habeas corpus, entered on 2 November

2007, and denying his Rule 59(e) motion to alter or amend the judgment, entered

on 14 November 2007. In this appeal, we must decide whether the Florida state

courts unreasonably applied clearly established federal law when they found that

Windom failed to establish that his penalty-phase counsel rendered ineffective

assistance by: (1) neglecting to investigate and present available evidence from

mental health experts and lay witnesses related to statutory and non-statutory

mitigating factors, and (2) conceding the state’s case for aggravation. For the

reasons that follow, we AFFIRM the district court’s denial of Windom’s habeas

petition.

I. BACKGROUND

A. Trial – Guilt Phase

Windom was indicted in 1992 by an Orange County, Florida grand jury on

three counts of first-degree murder and one count of attempted first-degree murder.

At trial, Jack Luckett testified that he spoke with Windom on the morning of the

shootings and that Windom asked him if Johnnie Lee had won any money at the

2
dog track. When Luckett told Windom that Johnnie Lee had won $114, Windom,

1

whom Johnnie Lee owed $2000, told Luckett, “‘My nigger, you’re gonna read

about me’” because he was going to kill Lee. R2-23, Appendix to State’s Habeas

Response, Appx. A4 (“A4”) at 356. Later that same day, Windom purchased a .38

caliber revolver and a box of fifty .38 caliber shells from Abner Yonce at a

Walmart store in Ocoee, Florida. According to Yonce, there was nothing unusual

about Windom, whom he described as “‘calm as could be.’” Id.

Almost immediately after purchasing the gun, Windom pulled up in his car

next to Lee, who was standing on the sidewalk talking to Luckett and two women.

Luckett and the two women all testified that Windom’s car was close to Lee and

that Windom leaned across the passenger seat of his car and shot Lee twice in the

back. After Lee collapsed to the ground, Windom got out of the car and, standing

over him, shot him two more times at very close range. Windom thereafter ran

towards the apartment where Valerie Davis, his girlfriend and the mother of one of

his children, lived. Within seconds of arriving at the apartment, and without

provocation, Windom shot Davis in the left chest area as she talked on the

telephone. Windom fled the apartment and ran outside, where he encountered

Kenneth Williams on the street. Windom shot Williams in the chest area at very

 This recitation of the facts adduced at trial is taken almost verbatim from the trial 1

judge’s sentencing order.

3
close range. Though hospitalized for almost a month, Williams survived. He

testified that when Windom shot him, Windom did not look normal and that his

eyes were “‘bugged out like he had clicked.’” Id. at 358.

After shooting Williams, Windom made his way to Brown’s Bar, where

three men, including Windom’s brother, attempted to take the gun from him. By

that time, Davis’ mother, Mary Lubin, who moments earlier had learned that her

daughter had been shot, had left work in her car and was driving down the street.

When she stopped at a stop sign, Windom approached her car, said something to

her, and then shot her twice, killing her. The jury returned guilty verdicts on all

four counts of the indictment.

B. Trial – Penalty Phase

In his opening statement before the jury, Windom’s attorney, Ed Leinster,

made the following remarks:

Since I’m the same individual that was largely

unsuccessful in convincing anyone here that Mr. Windom did not

do everything the state said he did and in the degree that they

said he did. I hope that I can at least keep your attention through

this particular phase.

. . . .

Nothing about this has been fun. Trying a first-degree

murder case is about as brutal as it gets. I wasn’t there, I didn’t

participate. My job is to try to save a man’s life, end of story.

You made your decision. It wasn’t too tough.

4
Broad daylight, what can you say? I would have to be the

firm of Christ and Houdini to have made anything out of this

other than what it clearly was. So the question now for you is,

do we pay any homage to what several people refer to as the

sanctity of human life at this point? Does he forfeit his life?

. . . .

You are going to hear a few people who are going to

testify. I’m frankly not quite sure what they are going to say as

far as the state’s presentation. And they will be presenting

aggravating factors to you. Those are by law statutory

aggravating factors that have to be proven beyond a reasonable

doubt.

Then we present testimony that essentially says he is not

all bad. That is a tough pitch for people who have heard what he

did. And it is my job once again to try to convince you. You

may already be convinced. You may have already made up your

minds; I hope not. But my job is going to be at least to try to say

this man doesn’t need to die.

There is no reason for him to die. And I guess the ultimate

conclusion that we are all going to find out when this is all over

really through your determination is really what we mean by the

sanctity of human life. Because he is a human, too.

R2-23, Appendix to State’s Habeas Response, Appx. A1 (“A1”) at 26-28.

The state then called Vickie Ward, a police officer with the Winter Garden

Police Department who at the time of the 1992 shootings had been assigned to the

D.A.R.E. program at a local elementary school, to testify as to the impact of the

5
murders on the Winter Garden school children. Defense counsel presented no

2

testimony or other mitigating evidence to the jury. During a bench conference, the

following exchange occurred between Leinster and the trial judge:

Mr. Leinster: The state having chosen to put on what they

put on, we could put on a variety of

individuals whose testimony would be

essentially that in their personal observations

of the defendant, they had never seen

anything quite like this or this kind of

presentation. That he seemed to be out of his

mind at the time, was part of the trial

testimony which the jury can consider for

purposes of the penalty phase.

What that does open up, however – and

I can’t control how these people deliver their

presentation . . . is the possibility for the state

to then cross-examine them about such things

as you didn’t see him do this, so forth, but

were you aware of bla, bla, bla, bla [sic] the

following. And this has been from start to

finish, a cocaine case with a murder overlay.

The jury hasn’t heard that.

The Court: About the cocaine.

Mr. Leinster: About the cocaine. And I have had to tread a

very thin line from the beginning to end. And

I’m doing this for the record, not to amuse

you or anything.

The Court: I know, and I’m letting you not to amuse you.

 Ward also had been involved in the investigation of the murders. 2

6
Mr. Leinster: There are ways of approaching these kinds of

cases. And I would probably have tried this

case in a different fashion if it were not a

first-degree murder case, if it didn’t have a

death sentence attached to it, I may have been

perfectly happy to let the jury hear that there

was cocaine involved. And the other people

that were involved and that there were notions

of his girlfriend sleeping with another person

and that she might have been an informant

and on and on and on. Except for the fact

that, in my opinion, that would have made an

already almost inextricable legal situation

worse.

So I did the very best I could with what

I had which was, I didn’t have a pair, you

know, that the state had a straight flush, and I

didn’t even have enough to bluff with. Now,

what we have got now is, the state because of

I think your rulings has put on one person

which is not an aggravating factor.

And if I put on a slew of potential

people to say nice things about Curtis

Windom, and I’m sure they will, there is the

distinct possibility that those folks are going

to be asked questions in cross-examination

that I may find highly objectionable. But once

the question is asked, it is asked. Whether you

agree with me or not, ultimately, the jury has

heard it.

And in my opinion, what we end up

with is Curtis Windom is tried for drugs and

not for what happened. So I as his lawyer

have made a strategic decision, wise or

unwise, not to call these folks and to argue

7
what we have got here. And if I am wrong, of

course, some day I’m going to hear about it.

The Court: Well, have you discussed this with your client

and is he in agreement with this?

Mr. Leinster: I discussed this with my client before lunch. I

don’t know if he is in agreement with it or

not. Curtis, are you in agreement with it?

[Windom]: Yes.

The Court: You are?

[Windom]: Yes.

The Court: Do you understand why he is doing it this

way?

[Windom]: Yes.

The Court: Why do you understand it to be?

[Windom]: Because he don’t want the drug thing to come

in.

Id. at 39-41.

Following the bench conference, Leinster delivered his closing argument to

the jury:

During voir dire . . . I asked a lot of people about their

feelings about the death penalty. And I don’t think I ever got a

response that made a bit of sense. Usually what it is is, well, if

someone takes a life, then he forfeits his life. Once that person

makes a decision to kill someone else, then he ought to die.

8
And that same nonsense is uttered by people who in the

same breath vouch for the sanctity of human life . . . Why do you

tell me on the one hand that you believe in the value of human

life, and yet you tell me that if somebody kills another, they

should forfeit theirs?

. . . .

Killing this man, that is what Mr. Ashton wants to do.

That is what the state wants to do; it is. Don’t dress it up, they

want to kill him.

Okay, he did everything a human could probably do to

deserve that in the sense that it outrages us. It makes us angry.

And if it had been one of ours, if it had been one of our close

loved ones and he had done it, we wouldn’t have been worrying

about the police. We would have gone and killed him.

. . . .

And when we say to those children. . . that the state said

were affected by this, when we take the message back to them

that we have today killed Curtis Windom, we have electrocuted

Curtis Windom, what is that message? The message is that we

condone killing.

. . . .

There are actually people who are willing to say

intellectually, why should taxpayers have to pay for someone to

sit in prison for the rest of their [sic] life? As though economics

has something to do with a human life. Now, I’m not here telling

you that this is a good fellow.

He is a human being. He is not a good fellow. You have

said that, okay. But now what you are being asked to do is to kill

him. And despite the fact that your decision is not absolutely

binding, the court has told you, what you decide pretty much is

9
the way it is going to go.

So at some point in time down the road, this man who for

whatever reason on that particular day did what he did, if you

find that he deserves to die, is going to be electrocuted.

. . . .

Society as a whole is brutalized. It is demeaned by the

concept of capital punishment. . . . It is not as though capital

punishment is part of the entire world system of justice. It is not.

It is part of Florida law. It doesn’t mean that it is God given.

. . . .

[I]f, in fact, . . . there is a moral rightness and a moral

wrongness . . . then how can you possibly condone killing

someone. . . . ?

. . . .

And I also understand that people make mistakes, and I’m

not so foolish as to suggest to you that this was just a mistake.

This wasn’t a mistake. It was a horrible, brutal act.

. . . .

I have not spent very much time arguing to twelve people

not to kill someone. So I am not experienced in this art. I didn’t

bring in a fugue state with Dr. Kirkland to pretend that there was

an amnesia quality about this sort of thing. I simply brought it

up to show you that we just don’t have a clue why we do what

we do.

And Curtis Windom doesn’t deserve pity. He doesn’t

deserve anything for what he did. I agree with you, it was – I

agree with Jeff, it was cold. The two aggravating factors are that

it was premeditated. Well, that is part of the charge. Anybody

10
that could commit first-degree murder, it is premeditated. So

that is aggravated.

And the other is that it was cold in the sense that any

killing is cold. It is, by definition. The mitigation factors you

will be asked to consider, some of them don’t make any sense at

all. Talks about an accomplice, so forth. That doesn’t make any

sense. But some of them had a lot of bearing.

Some of them talk about whether or not the individual was

under extreme mental or emotional disturbance at the time. I

never told you he was crazy. But even people testifying against

him said that is not who we had seen all his life. He was crazy,

not legally insane. You got to be frothing at the mouth to be

legally insane. But he wasn’t himself.

Whatever happened on that particular day in his life,

whatever bizarre configuration of relays took place that day that

caused him to do this, we won’t ever know. But nobody says

today, I think I’ll go out and shoot four people. Something

happened, and that is all they called the doctor for.

. . . .

Be honest, okay? We are talking revenge. That is all. That

is the only reason we are talking about killing this man is to say

we are mad at you, Curtis Windom. You ought to be. Society

ought to be mad at him.

. . . .

As long as it is given a judicial stamp of approval, we can

send twenty thousand volts through a man and fry him in a seat.

It is murder, pure and simple. You can wrap a ribbon around it if

you want to. Killing Curtis Windom isn’t going to do a single

thing except endorse that philosophy that we are never going to

grow up as a society.

11
Id. at 90-98.

The jury unanimously recommended death for all three first-degree murder

counts. On 5 and 10 November 1992, the trial judge held hearings during which

defense counsel was permitted to present mitigation evidence. Jerline, Windom’s

sister, testified that Windom saved her from drowning when she was twelve years

old and he was about nine years old. Willie Mae Rich testified that she had known

Windom his entire life and that he always gave her flowers or gifts on her birthday

and Mother’s Day; often made donations to the church they attended; helped her

procure medicine she required for a respiratory condition after she was laid off

from her job; bought clothes and food for the youth football team; provided for his

children; and was charitable to less fortunate members of the community. She

described Windom as “mild mannered” and testified that what happened in

February 1992 was “really” out of character. R2-23, Appendix to State’s Habeas

Response, Appx. A5 (“A5”) at 488. Mary Jackson, Rich’s sister, testified that she

had known Windom since he was three or four years old and that Windom often

lent money to people in the community who were unemployed. She described

Windom as a “sweet” and “low-key” person who “always offered a smile and [had]

a kind word to say.” Id. at 500. She had never observed him to be violent and

believed he was amenable to rehabilitation. Charlene Mobley testified that she had

12
known Windom her entire life and had dated him at one time. She stated that

Windom was “cool and calm” and “always smiling,” that he was never physically

violent towards her, and that he had helped her financially even after they ended

their romantic relationship. Id. at 514-15. Julie Harp testified that she had known

Windom for twenty-five years and that Windom was the father of two of her

children. She related that Windom was a “great” father, who provided for and took

care of his children and was never violent towards them. Id. at 519-20. At the 10

November 1992 hearing, defense counsel called John Scarlet, who testified that

Windom intervened to prevent Scarlet from shooting another individual who stole

twenty dollars from him.

In her sentencing order, the trial judge found two aggravating factors: (1)

that Windom had been previously convicted of another capital offense or of a

felony involving the use or threat of violence to a person, and (2) that the capital

crimes were committed in a cold, calculated, and premeditated manner without any

pretense of moral or legal justification. Based on witness testimony at the guilt

3

phase that Windom “was not himself and was not acting the way he normally

does,” the trial judge found, but gave minimal weight to, the statutory mitigators of

 In concluding that the crime was cold, calculated, and premeditated, the court noted that

3

there was no evidence that any of the victims had been armed or had threatened Windom in any

way. Rather, Windom approached each of them without provocation and shot them at close

range “with incredible accuracy.” A4 at 358-59. 

13
“extreme mental or emotional disturbance” and “extreme duress.” A4 at 360-61.

The trial judge further found the statutory mitigator of “no significant prior

criminal activity” as well as the following non-statutory mitigators: (1) Windom

assisted people in the community (little weight); (2) Windom was a good father

who supported and took care of his children (little weight); (3) Windom saved his

sister from drowning (very little weight); and (4) Windom saved another individual

from being shot during a dispute over twenty dollars (very little weight). The trial

judge concluded that these mitigators were outweighed by the aggravating

circumstances and thus insufficient to preclude the death penalty. Accordingly, the

trial judge sentenced Windom to death for the murders of Lee, Davis, and Lubin.

C. State Post-Conviction Proceedings

Following the Florida Supreme Court’s affirmance of his death sentence on

direct appeal, see Windom v. State, 656 So. 2d 432 (Fla. 1995) (per curiam), cert.

denied, 516 U.S. 1012, 116 S. Ct. 571 (1995), Windom filed a motion for post4

Although the Florida Supreme Court agreed that Windom murdered Lee in a cold, 4

calculated, and premeditated (“CCP”) manner without any pretense of moral or legal

justification, it reversed the lower court’s CCP determination as to Davis and Lubin, finding that

there was no evidence that Windom planned to shoot anyone other than Johnnie Lee when he

bought the gun and bullets. See Windom, 656 So. 2d at 439. The Florida Supreme Court

nevertheless affirmed Windom’s death sentence for all three murders, concluding that the lone

aggravating factor of Windom’s having been previously convicted of two other capital offenses

and one violent felony against a person in each instance was sufficient to outweigh the minimal

weight the trial court gave to the mitigating factors it found. See id. at 440. In so holding, the

court further noted that “it is not the number of aggravating and mitigating circumstances that is

critical but the weight to be given each of them.” Id. 

14
conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied fourteen of the twenty-one claims he raised in

his motion, but granted an evidentiary hearing on, inter alia, Windom’s claims of

ineffective assistance of counsel based upon (1) defense counsel’s alleged failure

to investigate and present mitigating evidence during the penalty phase of the trial

and (2) defense counsel’s alleged concession of the state’s case for death during

the opening and closing statements of the penalty phase.

1. Evidentiary Hearing

At the evidentiary hearing, Dr. Jonathan Pincus, a neurologist who

conducted a neurological evaluation of Windom, testified that Windom suffered

from organic brain damage and mental illness. Dr. Pincus opined that Windom’s

brain damage likely was caused by a traumatic head injury he suffered at birth and

a car accident at age sixteen that rendered him unconscious for a substantial period

of time. He testified that an individual with brain damage was much less able to

resist temptations imposed by mental illness and that as a result of his brain

damage, Windom’s capacity to control his behavior, which was unmodulated and

motivated by delusional thinking, and to distinguish between right and wrong at

the time of the murders was “seriously compromised.” R2-23, Appendix to State’s

Habeas Response, Appx. C15 (“C15”) at 563-64. According to Dr. Pincus,

15
because Windom’s mental illness and neurological condition made it impossible

for him to premeditate properly, he believed the crimes were not planned, but were

a “series of chance encounters.” Id. at 564, 567.

Dr. Craig Beaver, a psychologist who performed a neuropsychological and

clinical psychological evaluation of Windom, testified that Windom suffered from

moderate brain dysfunction and was under a high level of stress on the day of the

killings. Based on interviews with Windom’s family members, who related that in

the weeks before the shootings, Windom’s behavior had changed abruptly and he

had become increasingly paranoid, Dr. Beaver concluded that Windom’s

neurological and psychological limitations “came to a head” on the day of the

murders and that he was under extreme emotional distress and experiencing an

“acute psychotic episode” when he shot his victims. Id. at 661-63, 670. Dr.

Beaver explained that the paranoia Windom was experiencing would have affected

his ability to think clearly, make rational decisions, and appreciate the

consequences of his actions, especially when combined with his frontal lobe brain

damage.

The state’s mental health expert, Dr. Sidney Merin, testified that he

evaluated Windom in May 2001 and found no compelling evidence that Windom

suffered from any significant brain impairment. With respect to Windom’s falling

16
on his head at birth, Dr. Merin explained that this incident was fairly

inconsequential “[b]ecause the brain at that age, skull at that age is very flexible,

and any problems would have been . . . overcome, unless it was so severe he had to

go to the hospital because there was bleeding or whatever.” R2-23, Appendix to

State’s Habeas Response, Appx. C18 (“C18”) at 1197-98. With respect to the head

injury Windom sustained at age sixteen in the car accident, Dr. Merin opined that it

“may have had some adverse effect, but the probabilities are that it did not,”

especially given that there was “no evidence of impaired behavior, other than using

poor judgment” following his period of unconsciousness. Id. at 1198.

Dr. Merin noted that while persons with significant prefrontal lobe

impairment very often have difficulty socializing, Windom had no trouble

interacting with others prior to his arrest, and in fact was “performing very well.”

Id. at 1126-27. Although Windom did have a documented learning disability and

did poorly in school, this was not a function of any prefrontal lobe impairment. Id.

at 1128. Rather, Windom most likely had “garden variety reduced intelligence, not

mental retardation . . . specific only to academic function and not to functions of

how to live on the streets, the activities of daily living.” Id.

Dr. Merin further indicated that while Windom was undoubtedly

experiencing some level of stress at the time of the killings, he was not under

17
extreme mental or emotional disturbance when he committed the murders. Dr.

Merin observed that Windom did not lack motivation and nor was his initiative

impaired. In fact, Windom’s initiative was “very adequate” and he was “quite

capable of inhibiting his behavior.” Id. at 1125-26. Moreover, Dr. Merin testified,

his evaluation of Windom revealed “no evidence of breaks of reality or loosening

of ties with reality.” Id. at 1130. Dr. Merin concluded that Windom had the

capacity to conform his conduct to the requirements of the law and was “quite

capable” of distinguishing between right and wrong and appreciating the

criminality of his conduct. Id. at 1200.

Dr. Richard Kirkland, the psychiatrist appointed to evaluate Windom for

competency to stand trial, testified that he conducted a clinical interview with

Windom on 17 August 1992, but was unable to make a determination regarding his

sanity at the time of the crimes because he lacked necessary information, which he

had requested but never received, regarding Windom’s background. Dr. Kirkland

was not appointed during the penalty phase to evaluate Windom for statutory or

non-statutory mitigating factors, and was never advised prior to submitting his

report to the trial judge that Windom had suffered head trauma at birth and as a

teenager.

Defense counsel also called several lay witnesses to testify as to Windom’s

18
background and childhood. Gloria Jean Windom, one of Windom’s eight siblings,

testified that they were very poor growing up and that their father physically

abused them and their mother. On one occasion, their father beat their mother with

a tire iron so severely that she almost died. She recalled hearing that Windom had

been dropped on his head at birth and testified that at age sixteen, he was

hospitalized after suffering a concussion in a car accident that caused the vehicle

he was in to flip over several times. Gloria Jean further testified that Windom was

meticulous about his appearance: he dressed well, bathed often, always wore clean

clothes, and kept his hair closely shorn and slicked back with gel. In the few

weeks leading up to the murders, however, she observed that Windom had stopped

bathing and cutting or combing his hair, wore the same clothes several days in a

row, and would walk around the neighborhood without a shirt or shoes. She stated

that she met with Windom’s trial attorneys, but they never asked her any questions

about Windom’s background or requested that she testify.

Eddie Lee Windom, Windom’s youngest brother, testified that as a child

Windom had a speech impediment and bladder control problems. Because the

family was so poor and did not have a washing machine, Windom was forced to

wear his urine-soaked clothes to school, prompting his classmates to tease him and

call him “Pissy.” R2-23, Appendix to State’s Habeas Response, Appx. C16

19
(“C16”) at 784. He testified that their father gambled, beat them, and severely beat

their mother in front of them. He also testified that as an adult, Windom was

always neat, his clothes were always laundered and pressed, his shoes were shined,

and he kept his hair clean and styled. Like Gloria Jean, Eddie Lee recalled that in

the two or three weeks before the murders, Windom’s hair was unwashed and wild,

he wore the same dirty clothes day after day, walked around the neighborhood

barefoot and shirtless, stopped bathing, and had become overweight. Eddie Lee

stated that he met one of Windom’s trial attorneys when he went to his office to

pay Windom’s legal fees but that Windom’s attorney was too busy to talk to Eddie

Lee about Windom’s case.

Mae Louis Tatum, Windom’s older sister, also recalled that Windom fell

head-first onto a concrete floor immediately after his mother delivered him and that

he was in a serious car accident when he was sixteen that rendered him

unconscious and resulted in his being hospitalized for a couple of days. She

5

testified that after being released, Windom started having headaches, his speech

became impaired, he became emotional with little provocation, and he was difficult

to understand. Tatum met Windom’s attorneys one or two times before trial but

had no conversations with them regarding Windom’s defense.

 Lena Windom, Curtis’s mother, confirmed that upon being delivered, Curtis fell head- 5

first onto the bathroom floor and was not examined by anyone other than a midwife. 

20
Willie Mae Rich, Windom’s neighbor, testified that she saw Windom about

a month before the killings and noticed that he looked different and was acting

strange. According to Rich, Windom was hyper and shaking, his eyes were

“moving around in his head,” his face was bloated, his hair was “kinky,” he was

dirty, and he was not wearing a shirt or shoes. R2-23, Appendix to State’s Habeas

Response, Appx. C17 (“C17”) at 890-91. She testified that two or three weeks

before the murders, she told Windom that she had heard a rumor that someone was

planning to kill him. She said that Windom told her he had heard the same rumor.

Ed Leinster, one of Windom’s trial attorneys, testified that he advised

Windom to waive the mitigating factors that Windom was charitable, a good

father, and kind to people in the community because he feared that the lay witness

testimony establishing these mitigators would open the door to damaging rebuttal

evidence that Windom was a large-scale cocaine dealer, which, according to

Leinster, “prevailed the whole fabric of [the] case.” C16 at 817, 829. Leinster

explained that he had to tread a “thin line” because the case had been “from start to

finish a cocaine case with a murder overlay” and the jury did not know about the

cocaine. Id. at 833-34. Leinster also testified that he had heard rumors that

Windom’s girlfriend (Davis) was having an affair with Johnnie Lee and that she

was an informant. Leinster feared that these rumors might be corroborated if he

21
called certain community members for mitigation purposes. Leinster stated that he

was likewise reluctant to call witnesses during the penalty phase to testify that

Windom was behaving uncharacteristically in the weeks leading up to and on the

day of the murders because he feared presenting such testimony would run the risk

of the prosecution eliciting damaging information about Windom’s drug-dealing

during cross-examination. Because this was a death case, Leinster stated, any

information that Windom was a cocaine dealer, that his girlfriend was sleeping

with one of the other victims and may have been an informant in a drug

investigation involving Windom, or that Windom had had a falling out with

Johnnie Lee over drug money, would have greatly damaged the defense by

supplying a motive for the killings that Leinster did not want the jury to consider.

Leinster admitted that he did not file a motion in limine to have to the court rule on

whether this lay witness mitigation testimony would have opened the door to

evidence of Windom’s drug-dealing, and that he did not have a strategic reason for

not filing such a motion.

With respect to his failure to present mental health experts to testify at the

penalty phase as to Windom’s mental state at the time of the murders, Leinster

explained that he relied on Dr. Kirkland’s report, which indicated that there was no

viable mental health defense, and adopted the strategy of trying to implant in the

22
jurors’ minds during the guilt phase of trial that Windom’s state of mind on the day

of the murders made him incapable of committing first-degree murder. Although

the trial judge had granted his motion as to costs for a court reporter, depositions,

transcripts, subpoenas, and an investigator, Leinster admitted that he never retained

an investigator to look into penalty phase issues and never requested a confidential

mental health expert to assist him in preparing Windom’s defense. When asked

whether he had a strategic reason for not asking that a confidential mental health

expert be appointed, Leinster admitted, “Well, I’m sure it wasn’t strategy.” Id. at

820.

Leinster further testified that had he had the benefit of Drs. Pincus’ and

Beaver’s opinions that Windom suffered from organic brain damage and mental

illness, he would have introduced their testimony at the penalty phase in order to

show that Windom was acting under an extreme mental and emotional disturbance

when he committed the killings, even if this testimony opened the door for the

prosecution to introduce damaging evidence that Windom dealt drugs, that Davis

was rumored to have been sleeping with Johnnie Lee, and that Johnnie Lee owed

Windom drug money. Leinster believed the jury should have been allowed to

consider Windom’s brain damage, but Leinster did not know about it. According

to Leinster, the only factor suggesting possible brain damage or mental illness was

23
the nature of the acts themselves. Leinster’s personal interactions with Windom

would not have “tipped [him] off” because Windom was “subdued” and “was not

highly emotive.” Id. at 845-46. Leinster thus did not suspect that Windom was

mentally impaired in any significant way. Id. at 846. Finally, with respect to

Windom’s claim that Leinster conceded the state’s case for death during his

penalty-phase opening and closing statements, Leinster testified that he was

concerned about losing credibility with the jury if he challenged the first-degree

murder convictions.

Kurt Barch testified that he assisted Leinster in Windom’s 1992 trial and

was tasked with developing information about Windom’s background to be used

during the penalty phase. After speaking to some of Windom’s family members

and several Winter Garden residents, he believed that further investigation should

be undertaken, but was advised that he would have more success eliciting

information if he sent a black person into the community to talk to the residents.

He explained this to Leinster and asked Leinster to hire an investigator, but

Leinster never did.

Barch further testified that he learned from Windom’s mother and sister

about the car accident Windom was in when he was sixteen and followed up with

the doctor who had treated Windom. The doctor told Barch that Windom had not

24
suffered any long-term injuries as a result of the accident. Barch indicated that he

did not consult with Dr. Kirkland after discovering this information because he

believed Leinster was handling the mental health issues.

Finally, Barch explained that he had no responsibility for making tactical or

strategic decisions and that it was Leinster’s decision not to call any witnesses

during the penalty phase. According to Barch, Leinster feared that if he called

witnesses to testify that Windom was a good and charitable man, this testimony

would open the door for the prosecution to introduce testimony that Windom

earned a living gambling and selling drugs and was under investigation for drugdealing. Barch believed Leinster wisely decided to present evidence of Windom’s

good character to the judge rather than to the jury.

Robert Norgard, a criminal defense attorney since 1981, testified that by

1992 it was clearly recognized under then-prevailing professional standards that in

order to prepare a capital defense competently, an attorney should perform an

extensive investigation of the defendant’s complete life history that is not limited

only to statutory mitigating factors. The professional standard of care also required

a defense attorney to utilize a confidential mental health expert to assess whether

there might be a basis for an insanity defense. To investigate an insanity defense

properly, however, the attorney should not rely merely on the mental health expert,

25
but rather engage in a “holistic overall approach” that includes talking to “life

history witnesses” to determine whether there was any prior indication of mental

illness or decomposition; talking to and/or deposing any persons who saw the

defendant at the time of the crimes to ascertain whether there was a change in the

defendant’s behavior; and obtaining school and medical records. C17 at 991-92.

Norgard indicated that it is the attorney’s obligation and responsibility to then

provide the mental health expert with all of the information he has gathered so that

the expert can more carefully and accurately assess whether the defendant suffers

from a mental defect or illness. The attorney should also educate the expert

regarding mitigation – both statutory and non-statutory – during the penalty phase,

and his failure to do so constitutes incompetence.

Norgard conceded that there may be a valid tactical reason for presenting

mitigating evidence only to the judge and not to the jury. Norgard opined that an

effective attorney would first ask the trial judge to rule on whether or not a

particular piece of mitigating evidence would open the door to the introduction of

negative information.

Jeffrey L. Ashton, the assistant state attorney who prosecuted Windom’s

case, testified that in preparing for trial, he discovered facts that he believed had a

bearing on Windom’s motive for the killings, to wit, his involvement in a large26
scale drug-trafficking enterprise. He stated that there was an ongoing federal task

force investigation, dubbed “cookie monster,” into a crack-cocaine sales operation

out of Winter Garden, which had resulted in several indictments. Id. at 1058.

According to the information Ashton had received, Windom had been running the

operation with Kenny Thames and one of the three victims. Ashton indicated that

he was aware, based on the investigation, that Davis had been talking to law

enforcement and that Mary Jackson had confirmed that Windom was concerned

that Davis was an informant against him. Ashton further testified that he “made

6

[it] clear to everybody,” including Leinster, that had the defense called a mental

health expert to testify during the penalty phase, he would have presented

everything in Windom’s background that was unfavorable, including prior arrests

and crimes, for the jury to consider in deciding how much weight to give any

mitigating factor. Id. at 1064-65, 1079-80. According to Ashton, Leinster’s

decision not to call Dr. Kirkland or another mental health expert during the penalty

phase made it impossible for the state to introduce this damaging evidence to the

jury. Id. at 1080.

 Ashton testified that the decision was made not to prosecute Windom federally because 6

that would require complex drug involvement allegations, whereas Windom could be tried in

state court for premeditated murder without the prosecution having to prove any of the drugrelated crimes. 

27
2. Order on Rule 3.850 Motion

The state post-conviction court first found that Leinster knew about

Windom’s difficult background, including that Windom had suffered head injuries

at birth and as a teenager, and made a strategic decision not to mount a mitigation

defense during the penalty phase because he did not want to open the door to the

prosecution offering evidence of Windom’s involvement in “a violent world of

drug dealing.” R2-23, Appendix to State’s Habeas Response, Appx. C26 (“C26”)

at 2646. Faced with the possibility that the prosecution would introduce rebuttal

evidence of Windom’s drug dealing, Leinster made a reasonable strategic decision

to argue to the jury in the penalty phase that Windom seemed crazed and not like

himself on the day of the shootings.

The court found that Windom was not prejudiced by Leinster’s failure to

present mental health mitigating evidence in any event because, when weighed

against the effect of potentially devastating rebuttal testimony showing that

Windom shot his victims because he believed they were informants or owed him

drug money, the beneficial effect of Drs. Pincus’ and Beaver’s mitigating

testimony would have been negligible. In finding further that the doctors’

testimony was of limited value, the court noted that “their opinions were, at least in

part, based on facts not entirely supported by the evidence,” because while they

28
concluded that Windom had no plan to do what he did and that the killings were

the result of a series of chance encounters, the evidence adduced at trial and the

evidentiary hearing “suggest[ed] that the first three persons were shot over drug

money and in revenge for Mr. Windom’s belief that these people were police

informers.” Id. at 2636. In fact, the court found,

[b]oth doctors seemed to have ignored Mr. Windom’s own

statements on the day of the murders, which would seem to belie

Dr. Pincus’ conclusions that these murders were merely a series

of chance encounters with Mr. Windom acting out of momentary

impulse . . . The totality of the circumstances surrounding these

events suggest[s] to me in no uncertain terms that Mr. Windom’s

actions were knowing and premeditated.

Id. at 2640-41. Further, the court pointed out, both doctors

based their finding of brain damage, at least in part, upon Mr.

Windom’s history as related by himself and his family. Now,

some nine years after the fact, Mr. Windom and his family relate,

in graphic detail, Mr. Windom’s difficulties following his fall to

a concrete floor quite literally from his mother’s womb and a

rollover traffic accident at the age of 16. While there is a wealth

of evidence to suggest that Mr. Windom suffered from low IQ,

depression, and a bipolar disorder, there is virtually no evidence

to suggest that Mr. Windom had any trouble functioning prior to

the date of these murders. Virtually no medical records existed

to verify either of the head injuries now claimed by Mr.

Windom. Mr. Windom’s family says that after his vehicle injury

at the age of 16, he became more paranoid and failed to interact

much with anybody. This appears to be a part of what the doctors

based their conclusions upon. Yet in the evidentiary hearing,

Mr. Windom’s family testified that prior to this event, he was

well-groomed, affable, and took pride in his appearance. One

story seems to contradict the other.

29
Id. at 2638-39.

The court also noted that in formulating their opinions, the doctors were

either unaware of, or ignored, Windom’s lifestyle and the “violent social setting

within which Mr. Windom lived at about the time the shooting occurred,”

including that Windom had himself been previously shot in a drive-by shooting,

his house had been ransacked, he had been arrested a few months before the

murders, and his drug sales partner had been tortured and killed shortly after the

murders. Id. at 2640-42. Had the doctors taken into consideration these realities,

“they might have believed that Mr. Windom’s ‘edgy’ demeanor was more likely a

realistic assessment of the setting in which he lived, rather than a product of

irrational paranoia or delusion.” Id. at 2640. According to the court, the context

within which Windom committed his crimes thus showed that “Windom’s acts

were arguably more a product of the drug culture within which he lived, than any

mental infirmity.” Id. at 2642.

On the other hand, the court found, the testimony of Dr. Merin was “more

logically based [on] and consistent with the facts.” Id. at 2641. Given the

inconsistencies between the doctors’ testimony and the record facts, especially

when weighed against the more credible testimony of Dr. Merin – which did not

suggest that Windom was suffering from brain damage or mental impairment at the

30
time of the offenses – the court concluded as follows:

[t]here is no reasonable probability that the guilt phase

would have resulted in a different outcome if experts such as Dr.

Pincus and Dr. Beaver had been prepared and called by Mr.

Leinster. Their conclusions seemed contrived, and were based

upon speculation about Mr. Windom’s state of mind on the day

of the shooting. Their conclusions ignored much of the trial

record evidence of Mr. Windom’s statements on the day of the

shootings which indicated that he knew what he was doing and

had motives for his shooting the victims.

Id. at 2641. Finally, the court concluded that the prosecution’s potential rebuttal

evidence that Windom successfully ran a lucrative illicit drug enterprise not only

would negate a finding of brain damage, but would suggest that Windom in fact

had a much higher level of intellectual functioning.

7

With respect to Windom’s claim that defense counsel conceded aggravating

factors during the penalty phase, the post-conviction court found that

Mr. Windom had already been convicted of first-degree

premeditated murder, and Mr. Leinster was faced with a daunting

task . . . . It would have strained his credibility, thereby

contributing to the difficulty of his task, to argue the verdict was

unjust to the same jury which would be imposing a sentence. It

was a reasonable trial strategy for Mr. Leinster to be realistic

 While the court agreed that Leinster should have filed a motion in limine asking the 7

judge to rule on whether mitigation would open the door to this negative evidence, it found that

even if Leinster had filed such a motion, he would not have prevailed because no judge would

allow mitigation evidence suggesting brain damage and an inability to function independently

without also allowing rebuttal evidence suggesting that the defendant was a successful drug

dealer, had a motive for killing his victims (who were police informants and interfered with his

drug operation), and had a premeditated design to kill those victims as explained to witnesses

before the murders. 

31
about the facts of the case in order to restore a measure of

credibility to the defense.

Id. at 2651. The court further found that the record demonstrated that Leinster

“argued vigorously against the death penalty in general and argued that executing

Mr. Windom would be just another act of murder.” Id.

After analyzing the remainder of Windom’s claims, the court reiterated that,

even if Windom could show that trial counsel’s representation was unreasonable

under prevailing professional norms, his motion nevertheless was due to be denied

because he failed to establish that he suffered any actual prejudice as a result of

counsel’s deficient performance. Specifically, the court concluded that:

In this court’s review of all of the evidence and testimony

presented, it is unable to determine that there is a reasonable

probability that the outcome of the trial would have been

different had the prejudicial acts and omissions complained of

not occurred. In other words, Mr. Windom is unable to prove the

second prong (prejudice) of Strickland. I acknowledge that

several of the acts and/or omissions complained of are troubling.

Mr. Windom’s argument that prior counsel made only a minimal

attempt, just before the trial, to investigate and prepare available

mitigating evidence certainly has some merit. Collateral

counsel’s legal capital expert, Mr. Norgard, testified that it was

appropriate to do an extensive investigation of a person’s life,

with an expenditure of up to 500 hours of time on this element.

Collateral counsel is correct when it argues that the time spent

investigating by trial counsel did not even approach that

milestone. Even so, this would not have been enough. While

there is certainly some evidence to support many of these

allegations, none of it provides proof by a preponderance that

trial counsel was ineffective . . . . It certainly did not provide

32
proof by a preponderance of the evidence that Mr. Windom

suffered prejudice as a result of trial counsel’s alleged

ineffectiveness.

Defendant’s trial attorney faced almost insurmountable

evidence that Mr. Windom shot five people in a premeditated

manner. Mr. Windom made statements to a credible witness,

Jack Luckett, who indicated that he had more than one motive to

kill Johnnie Lee, his first victim. Mr. Windom also told Mr.

Luckett that he would see him in the papers, indicating that he

knew the probable outcome of shooting someone in broad

daylight. Mr. Windom then obtained the firearm, went to a Wal

Mart and purchased ammunition, and shot Mr. Lee. At the point

in time he shot Mr. Lee, Mr. Windom made a statement which

suggested a motive which matched that which he had told Mr.

Luckett earlier. Mr. Windom then shot four additional persons

with sufficient time between each shooting to consider the nature

and consequences of his acts. Before he shot the third victim,

Kenny Williams, Mr. Windom took time to reload his gun. This

gave him even more time to consider the nature and

consequences of his shooting Mr. Williams and his last victim,

Mary Lubin. While he was shooting Mr. Williams, Mr Windom

again made a statement which indicated his motive for doing so,

to wit, that he did not like police informants. This matched the

fact that Mr. Windom was facing drug charges rising out of cases

in which police had used informants close to Mr. Windom.

Before he shot his last victim, Mr. Windom made a statement

that he knew what he had done (“I shot Johnnie Lee”), and acted

as if he knew this action was wrong (putting his gun up to his

own head). Mr. Windom’s actions were consistent with other

evidence introduced at the evidentiary hearing which suggested

that his shootings were consistent in character and motivation

with similar crimes committed by others who shared his values

and lifestyle as a drug dealer.

There was also evidence that his trial attorney, Mr.

Leinster, was familiar with this environmental setting, and knew

the prosecutor was also familiar with it. Thus, Mr. Leinster

33
adopted a strategy designed to keep the defendant’s lifestyle out

of evidence at the guilt and penalty phases. Ultimately, Mr.

Leinster’s strategy failed to win over the jury or the sentencing

judge. It is certainly clear that another route could have been

taken by defense counsel at the guilt and penalty phases; that

currently suggested by collateral counsel. Having now heard that

evidence which could have and would have been presented with

a more thorough investigation, and with medical witnesses

testifying about Mr. Windom’s brain damage, I am unable to

envision a different outcome.

Given these facts, Mr. Windom has failed to prove that his

attorney was ineffective, or that a different result would have

been obtained either at the guilt or penalty phases, even if Mr.

Leinster had acted as defendant now claims that he should have.

At the evidentiary hearing, expert medical witnesses failed to

prove a reasonable probability that a mental health status defense

would have been successful at either phase of the trial. Their

conclusions were unpersuasive, and ignored the ample evidence

that Mr. Windom had thought over his reasons for shooting his

victims.

Id. at 2665-67.

On appeal, the Florida Supreme Court upheld the post-conviction court’s

finding that penalty-phase counsel was not deficient for failing to present the

mental health experts’ testimony and the testimony of Windom’s family members

regarding Windom’s impoverished upbringing and the two head injuries he

sustained as a child. See Windom v. State, 886 So. 2d 915, 928 (Fla. 2004) (per

curiam). It reasoned that the evidence the state would have offered in rebuttal

greatly outweighed any value of the mental health expert and lay witness testimony

34
and “would have directly countered any assertion of brain damage by showing that

Windom was capable of running a successful drug enterprise and that his everyday

functioning was not impaired.” Id. Accordingly, it found that Leinster made a

reasonable tactical decision not to present the doctors’ and family members’

testimony in order to prevent the jury from hearing this damaging rebuttal

evidence. See id.

With respect to trial counsel’s alleged concession of the state’s case for

death, the Florida Supreme Court found that Leinster’s testimony at the evidentiary

hearing made clear that he made a strategic decision to focus his efforts on

conveying to the jury that Windom was not acting like himself on the day he

committed the murders and did not deserve the death penalty. See id. at 929. The

court further agreed with the post-conviction court’s finding that Windom was not

prejudiced by Leinster’s remarks because the sentencing record demonstrated that

“[Leinster] argued vigorously against the death penalty in general and argued that

executing Mr. Windom would just be another act of murder.” Id.

D. Federal Habeas Petition

Windom filed the instant § 2254 petition for a writ of habeas corpus in the

district court on 14 September 2004, reasserting his claim that penalty-phase

counsel was defective for (1) failing to call Drs. Pincus and Beaver as mental

35
health experts to testify that he suffered from mental illness and organic brain

damage; (2) failing to call lay witnesses to support the findings of the mental

health experts and to testify as to non-statutory mitigation, including his

background; and (3) conceding the state’s case for aggravation by stating, inter

alia, that Windom “[didn’t] deserve pity. . . . I agree with [the prosecutor], it was

cold,” and reminding the jury that “You made your decision, it wasn’t too tough.

Broad daylight, what can you say? I would have to be the firm of Christ and

Houdini to have made anything out of this other than what it clearly was.” R1-1 at

11-22, 43. Windom argued that in making these remarks, failing to present

mitigating evidence, and indicating that no mitigation existed, defense counsel

implicitly urged the jury to return a death recommendation and thereby abandoned

his role as an advocate.

District Court Order on § 2254 Petition

a. Failure to Investigate and Present Statutory and Non-statutory

Mitigation Evidence

8

The district court first rejected Windom’s claim that the state court’s

decision was contrary to clearly established law because it failed to apply the

Supreme Court’s ruling in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527

 The district court found that although Windom agreed to waive the presentation of 8

mitigation evidence to the jury, he did not waive the presentation of mitigation evidence to the

judge. We agree. 

36
(2003), which, Windom argued, was controlling. The district court found that

Wiggins was distinguishable because the aggravating circumstances in Windom’s

case were “extremely strong.” R3-32 at 39. Unlike the mitigating evidence at

issue in Wiggins, which included that the petitioner had suffered severe privation

and abuse at the hands of his alcoholic mother and had been physically abused,

sexually molested, and repeatedly raped during his years in foster care, and which

was untainted by any prior record of misconduct by petitioner, the mitigating

evidence Windom asserts should have been presented in his case had a “‘double

edge.’” Id.; see Wiggins, 539 U.S. at 535, 123 S. Ct. at 2542. The district court

9

 We agree with the district court that Wiggins does not control the outcome of this 9

appeal. In Wiggins, the Supreme Court had to decide whether counsel conducted a reasonable

investigation into the petitioner’s background before deciding not to introduce mitigating life

history evidence during the penalty phase of petitioner’s capital murder trial. 539 at 516, 523,

123 S. Ct. at 2532, 2536. The Court clarified that under Strickland “a cursory investigation”

does not “automatically justif[y] a tactical decision with respect to sentencing strategy,” and that

when deciding whether counsel exercised reasonable professional judgment under the first

Strickland prong, the relevant inquiry is not whether counsel should have presented a mitigation

case, but rather, “whether the investigation supporting counsel’s decision not to introduce

mitigating evidence . . . was itself reasonable.” Id. at 522-23, 527, 123 S. Ct. at 2536, 2538. 

Disagreeing with the state court’s finding that counsel was not ineffective because they made a

strategic decision to focus their efforts on arguing that the petitioner was not directly responsible

for the murder, the Court held that “counsel abandoned their investigation of petitioner’s

background after having acquired only rudimentary knowledge of his history from a narrow set

of sources” and therefore, their “alleged choice” not to present a life history mitigation defense,

inasmuch as it was based on an unreasonable investigation, constituted deficient performance. 

Id. at 524, 527, 123 S. Ct. at 2537-38. The Court further held that the lack of aggravation,

coupled with the strength of the mitigating evidence, rendered defense counsel’s failure to

conduct an adequate investigation prejudicial. Id. at 536-38, 123 S. Ct. at 2543-44. In this case,

however, we find, for the reasons discussed in more detail below, that even if counsel’s

investigation into a mitigation defense was unsatisfactory under the standards set forth in

Strickland and reaffirmed in Wiggins, the existence and weight of aggravating factors, coupled

with the relative weakness of the mitigating factors, nevertheless compels a finding of no

37
further found that the state courts’ decision did not involve an unreasonable

application of the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052 (1984). The district court agreed with the state post-conviction court

10

that the state’s case for aggravation was virtually unassailable in light of the

overwhelming evidence of premeditation, and that the mitigating evidence of

Windom’s brain damage and mental illness would have been greatly diminished by

the state’s rebuttal evidence of Windom’s drug dealing. Because nothing in the

record or in Windom’s submissions suggested that the state courts’ factual findings

in this regard were unreasonable, Windom failed to rebut the presumption of

correctness accorded those findings.

b. Trial Counsel’s Penalty-Phase Opening Statement and Closing

Argument

The district court first concluded that the state courts’ finding that Leinster’s

prejudice.

 The district court noted that while the “key” to the state courts’ decision that penalty10

phase counsel was not ineffective was their finding that counsel made a strategic decision not to

mount a mitigation defense in order to prevent the jury from hearing evidence of Windom’s

involvement in drug-dealing, “Leinster could not have had similar concerns regarding the judge

hearing evidence of drug dealing[,] as Leinster presented mitigation evidence to the judge that

did open the door to certain drug evidence.” R3-32 at 31, n.10. Therefore, according to the

district court, “Leinster’s failure to present available mitigation evidence to the judge regarding

Windom’s difficult upbringing and intellectual and mental health issues [could not] be attributed

to strategy.” Id. The court acknowledged that “a deficiency analysis [was] unnecessary to the

resolution of this claim” in light of its finding that Windom was not prejudiced by counsel’s

performance, but indicated that “[it] ma[de] these observations to again stress that it does not

condone the roughshod approach taken by Windom’s counsel....” Id. 

38
comments, when considered in context, “reflect[ed] an acceptable effort to regain

credibility with the jury,” was a reasonable application of the first prong of

Strickland. R3-32 at 46. The district court further agreed with the state courts’

finding that Leinster did not concede a lack of mitigation, noting that the record

showed that Leinster made a “valid argument that the jury should find the

mitigating circumstance of extreme mental or emotional disturbance based upon

testimony of the State’s own witnesses who described Windom on that day as

different from the way he had been all of his life.” Id. at 47. The district court

disagreed, however, with the state courts’ conclusion that Leinster’s concession of

the existence of CCP constituted a “reasonable trial strategy . . . to be realistic

about the facts of the case in order to restore a measure of credibility to the

defense.” Id. (quotation marks and citation omitted). Noting that there could have

been no conceivable benefit to trial counsel conceding one out of only two

aggravating circumstances on which the jury was instructed, the court concluded

that Leinster’s concession that CCP applied “‘by definition’” reflected an “obvious

misapprehension of the law” and therefore could not be “a reasonable” strategy.”

Id. at 48. Nevertheless, the court found, the state courts’ finding that Windom was

not prejudiced by Leinster’s improper concession of the CCP aggravator was not

an unreasonable application of Strickland and thus Windom was not entitled to

39
relief.

II. DISCUSSION

On appeal, Windom argues that the state court’s decision that Leinster’s

performance was constitutionally adequate was erroneous because it rested upon

the factually flawed premise that the state would have presented rebuttal drug

evidence. He asserts that the only evidence of Windom’s drug-dealing activity and

alleged motive for the killings was Ashton’s testimony at the post-conviction

evidentiary hearing and that the state offered no other evidence of his drug-dealing

ventures. Windom also asserts that if Ashton had in fact had evidence that the

killings were motivated by Windom’s involvement in drug-dealing activities, he

could have introduced this evidence without the defense first opening the door. He

further points out that had there been evidence that these crimes were related to

Windom’s drug activity, the case would have proceeded in federal court under the

federal death penalty statute.

11

Windom further challenges the state courts’ finding that he was not

prejudiced by Leinster’s failure to call mental health experts because their

 We reject Windom’s assertion that the state courts’ decision improperly ignored 11

Leinster’s own admission of deficient performance at the evidentiary hearing. Because the

adequacy of an attorney’s performance is measured against an objective standard of

reasonableness, the fact that trial counsel admits that his performance was lacking is of little, if

any, consequence. See Chandler v. United States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) (en

banc). 

40
testimony lacked credibility. He asserts that the experts were aware of Windom’s

alleged drug activity and violent social setting, and, in any event, that the courts

failed to explain how ignorance of Windom’s drug-related activities undermined

their credibility. Windom contends that the courts also erroneously found that the

experts ignored Windom’s statements on the day of the killings, arguing that both

testified that they were aware of these statements and considered them in

formulating their opinions. Windom further asserts that the state and district courts

gave undue weight to evidence of Windom’s drug activity in finding a lack of

prejudice because there was so little actual evidence of such activity. Finally,

Winsom contends that the district court failed to assess all of the mitigation

presented by Windom because it cited only brain damage, mental illness, and

charitable acts, and failed to weigh the fact that Windom was physically abused

and raised in poverty. Id. at 25.

As to his second claim, Windom asserts that the state and district courts

misconstrued his argument as one challenging Leinster’s decision not to argue

innocence when in fact his argument was that Leinster conceded CCP and the

justification for a death sentence. Conceding the state’s case for aggravation could

not be reasonable strategy under any circumstance, he argues, and therefore, his

remarks were unnecessary to gain credibility with the jury. Because Leinster never

41
asserted that Windom was innocent, he contends, there was no reason to regain

credibility. In any event, even if gaining credibility were necessary, conceding the

existence of an aggravating factor was not an appropriate way to accomplish such a

goal. Finally, he asserts, Leinster only vaguely referenced the statutory mentalhealth mitigator, never asserted that it applied, and never argued that it, or any

other mental health mitigator, existed.

Because Windom filed his federal habeas petition after 24 April 1996, this

case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Under AEDPA’s “highly deferential standard for reviewing state

court judgments,” a federal court may not grant habeas relief on claims previously

adjudicated on the merits by a state court unless the state court adjudication

resulted in a decision that was “(1) contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.”

McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1255 (11th Cir. 2009) (quotation

marks, alterations, and citation omitted); 28 U.S.C. § 2254(d).

A state court decision is “contrary to” clearly established federal law if it

“applies a rule that contradicts the governing law set forth in [Supreme Court]

42
cases” or “confronts facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [the Court’s].”

Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000). If the state

court decision is not contrary to clearly established federal law, the reviewing court

must then determine whether the state court decision was an “unreasonable

application” of clearly established federal law. Id. at 413, 120 S. Ct. at 1523. A

state-court decision involves an unreasonable application of federal law where “the

state court identifies the correct governing legal principle . . . but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. It is not sufficient that

the state court’s application was incorrect; the misapplication must also be

objectively unreasonable. See id. at 410-11, 120 S. Ct. at 1522. A state-court

decision also involves an unreasonable application of federal law where the state

court “either unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply.” Id. at 407, 120 S. Ct.

at 1520.

Even if the state court’s decision was neither contrary to nor an unreasonable

application of clearly established federal law, the district court may grant habeas

relief if the state court’s decision “was based on an unreasonable determination of

43
the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2). However, the state court’s factual determinations are

presumed correct and the petitioner can rebut this presumption only with clear and

convincing evidence that the state court’s factual determinations were erroneous.

See 28 U.S.C. § 2254(e)(1). “[T]he statutory presumption of correctness applies

only to findings of fact made by the state court, not to mixed determinations of law

and fact.” Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001).

A defendant claiming ineffective assistance of counsel in violation of the

Sixth Amendment must demonstrate that: (1) counsel’s performance was deficient,

and (2) the deficient performance prejudiced the outcome of the proceedings. See

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “Unless a defendant makes both

showings, it cannot be said that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the result unreliable.” Id. We

have observed that under the exacting rules and presumptions set forth in

Strickland, “the cases in which habeas petitioners can properly prevail on the

ground of ineffective assistance of counsel are few and far between.” Waters v.

Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quotation marks and

citation omitted).

Because the failure to demonstrate either deficient performance or prejudice

44
is dispositive of the claim against the petitioner, “there is no reason for a court

deciding an ineffective assistance claim to . . . address both components of the

inquiry if the defendant makes an insufficient showing on one.” Strickland, 466

U.S. at 697, 104 S. Ct. at 2069. Accordingly, we may consider whether the

petitioner suffered prejudice as a result of counsel’s alleged errors without first

evaluating the adequacy of counsel’s performance. See id.; see also McClain v.

Hall, 552 F.3d 1245, 1251 (11th Cir. 2008) (“We may decline to decide whether

the performance of counsel was deficient if we are convinced that [the petitioner]

was not prejudiced”). In fact, the Supreme Court has made clear that “[t]he object

of an ineffectiveness claim is not to grade counsel’s performance” and therefore,

“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that course should be

followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

A. Failure to Investigate and Present Mitigating Evidence

We need not determine whether counsel’s limited investigation into

Windom’s background and mental health constituted deficient performance under

the first prong of Strickland because we conclude that, even assuming counsel

performed deficiently, Windom was not prejudiced thereby.

Under the prejudice prong of the Strickland analysis, our inquiry is “whether

45
there is a reasonable probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating circumstances did

not warrant death.” Id. at 695, 104 S.Ct. at 2069. In conducting our review, we

must “reweigh the evidence in aggravation against the totality of available

mitigating evidence.” Wiggins, 529 U.S. at 534, 123 S. Ct. at 2542. When

balancing the aggravating and mitigating factors, we presume the state court’s

findings of fact to be correct. Porter v. Att’y Gen., 552 F.3d 1260, 1269-70 (11th

Cir. 2008) (per curiam).

Prior to imposing sentence, the trial judge heard evidence that Windom was

charitable, was a good father, saved his sister from drowning, and prevented a

violent encounter. The question we must answer is whether, when weighed against

the aggravating circumstances – CCP and previous conviction for a capital offense

or violent felony with regard to the murder of Lee, and previous conviction for a

violent felony or capital offense with regard to the murders of Davis and Lubin –

this evidence, in combination with the mitigation evidence presented by collateral

counsel during the evidentiary hearing, would have precluded imposition of the

death penalty. See Wood v. Allen, 542 F.3d 1281, 1310 (11th Cir. 2008) (in

evaluating prejudice, the court “must consider the total available mitigation

evidence as adduced pre-trial, at trial, and at the [post-conviction] hearings”).

46
At the Rule 3.850 hearing, Drs. Pincus and Beaver testified that Windom

suffered from organic brain damage and mental illness, was of low intelligence,

and was not capable of appreciating the criminality of his conduct at the time he

committed the murders. Windom’s family members testified that he was dropped

on his head on a concrete floor at birth and was hospitalized with a head injury

after being in a car accident at age sixteen. They also testified that Windom had a

difficult and impoverished upbringing, during which he was physically abused by

his father and bullied by his classmates, and that he had been behaving erratically

in the weeks leading up to the shootings.

The state post-conviction court found that the outcome of the penalty phase

proceedings would not have been different had Leinster presented this mitigating

evidence given the overwhelming evidence of premeditation, including that

Windom: (1) told Luckett he would read about [Windom] in the papers; (2)

obtained a gun and purchased ammunition at a local Wal Mart; (3) shot three

people with sufficient time between each shooting to consider the consequences of

his actions; (4) reloaded his gun before shooting Williams; and (5) stated, while

shooting Williams, that he did not like police informants. The state court noted

further that the expert medical witness testimony presented by collateral counsel at

the evidentiary hearing did not establish that a mental health status defense would

47
have been successful because the experts’ “conclusions were unpersuasive, and

ignored the ample evidence that Mr. Windom had thought over his reasons for

shooting his victims.” C26 at 2667.

The state post-conviction court’s conclusion that Windom was not

prejudiced by Leinster’s failure to investigate and present a mental health

mitigation defense was not objectively unreasonable. As the state court pointed

12

out, Drs. Pincus’ and Beaver’s opinions were inconsistent with portions of the

record evidence, lacked a medically verifiable foundation, e.g., hospital records

confirming that Windom in fact suffered head trauma leading to brain damage, and

were largely controverted by Dr. Merin’s testimony that Windom was not suffering

from any mental impairment when he committed the murders. It would therefore

strain reason to conclude that the doctors’ testimony would have had much impact

on the judge’s choice of sentence. See Hannon v. Sec’y, Dep’t of Corr., 562 F.3d

1146, 1157 (11th Cir. 2009) (petitioner not prejudiced by counsel’s failure to

investigate petitioner’s alleged mental health impairment where there was contrary

evidence presented by the experts). Rather, it is entirely conceivable, if not

probable, that the trial judge would have rejected Drs. Pincus’ and Beaver’s

 In upholding the post-conviction court’s decision that Windom failed to establish an 12

ineffective assistance of counsel claim based on Leinster’s failure to present mitigating mental

health evidence, the Florida Supreme Court concluded that Leinster’s performance was not

deficient, and thus never addressed the post-conviction court’s findings with respect to prejudice. 

48
testimony in favor of Dr. Merin’s conclusions to find that Windom did not suffer a

mental impairment that diminished his moral culpability for the crimes he

committed. See Waters, 46 F.3d at 1514-15 (where psychologist’s testimony was

contradicted by the opinion of the state’s expert and inconsistent with petitioner’s

conduct on the day of the murders, counsel’s failure to present the testimony was

not deficient performance because the psychologist’s “credibility probably would

have been undermined to such an extent that it would have rendered worthless the

testimony she did give for the defense”). It is also unlikely, given Dr. Merin’s

unequivocal testimony that Windom was capable of distinguishing between right

and wrong and appreciating the criminality of his conduct, that the trial judge

would have accorded any significant weight to the family members’ testimony that

Windom was behaving strangely in the weeks before the shooting as persuasive

evidence of a mental impairment.

With respect to the other mitigators Windom asserts should have been

presented, including that he was physically abused by his father, bullied by his

classmates, and raised in abject poverty, Windom offered no evidence that these

circumstances had any continuing effect on his ability, at the age of twenty-six, to

conform his conduct to the requirements of the law.

We also find that Windom’s background, though dysfunctional, was not so

49
adverse or atrocious as to create a reasonable probability that it would “have

influenced the [trial judge]’s appraisal of [Windom]’s moral culpability.”

Wiggins, 539 U.S. at 538, 123 S. Ct. at 2544 (quotation marks and citation

omitted). In Wiggins, the Supreme Court held that the mitigating evidence counsel

unreasonably failed to discover and present, including that: (1) the petitioner’s

mother was a chronic alcoholic and was physically abusive; (2) the petitioner and

his siblings were left home alone without food and were forced to beg for food and

to eat paint chips and garbage; (3) petitioner was hospitalized after his mother

intentionally burned him on a hot stove; (4) petitioner’s mother had sex with men

while petitioner was in the same bed; (5) petitioner was placed in foster care at age

six and was physically abused by his foster mother; (6) petitioner was raped and

molested by one foster father and gang-raped by the sons of another foster mother;

(7) petitioner was homeless after running away from one abusive foster home; and

(8) petitioner was allegedly sexually abused by a supervisor after entering a Job

Corps Program, was “powerful” and reflected “the kind of troubled

history . . . relevant to assessing a defendant’s moral culpability.” Id. at 516-17,

534-35, 123 S. Ct. at 2533, 2542. In view of the nature and extent of abuse and

deprivation to which Wiggins was subjected, the Court concluded that there existed

a reasonable probability that, had the jury been given the opportunity “to place

50
[Wiggins’] excruciating life history on the mitigating side of the scale, there [was]

a reasonable probability that at least one juror would have struck a different

balance.” Id. at 537, 123 S. Ct. at 2543; see also Williams, 529 U.S. at 398, 120 S.

Ct. at 1515 (finding prejudice where counsel failed to present evidence of

petitioner’s childhood, which was “filled with abuse and privation”); Williams v.

Allen, 542 F.3d 1326, 1342-43 (11th Cir. 2008) (finding prejudice where trial

counsel failed to discover mitigating evidence that petitioner suffered “an extreme

level of deprivation, both physical and emotional,” and was subjected to severe

beatings, which involved the use of deadly weapons and resulted in serious

injuries, “on a near constant basis”).

The mitigation evidence in this case, unlike the “powerful mitigating

narrative” told by the gruesome circumstances of Wiggins’ background, is far less

compelling in light of the number and method of the killings involved here.

Wiggins, 539 U.S. at 537, 123 S. Ct. at 2543. Moreover, any potential benefit to

be gained by presenting the relatively weak mitigating evidence in Windom’s case

would have been severely undercut by rebuttal evidence of his own misconduct,

specifically, his involvement in a large-scale drug-dealing operation. Cf. id.

(noting that counsel’s failure to present evidence of Wiggins’ disturbing

background was rendered even more prejudicial by the fact that Wiggins had no

51
record of violent conduct against which to offset the strong mitigating evidence);

Williams, 542 F.3d at 1343 (noting that the fact that the case was not highly

aggravated “[f]urther support[ed] a finding of prejudice”).

In sum, given the strength of the state’s case against Windom and the nature

of the crimes themselves, there is no reasonable probability that the jury would

have recommended, or that the judge would have imposed, a non-death sentence

even if they had been confronted with the mitigating evidence Windom asserts

Leinster should have discovered and introduced. See Payne v. Allen, 539 F.3d

1297, 1318 (11th Cir. 2008) (where “[t]he strength of the evidence of both

[petitioner’s] guilt and the aggravating nature of the crimes [was]

great[,] . . . mitigating evidence about [petitioner’s] childhood, family background,

and substance abuse would not have negated the aggravating nature of this

abhorrent murder proven beyond all doubt by the State”). Accordingly, we agree

with the district court that the state court did not unreasonably apply Strickland

when it found that the available mitigating evidence, taken as a whole, did not

outweigh the aggravating nature of Windom’s crimes and that Windom thus failed

to establish prejudice as a result of his counsel’s failure to investigate and present

mitigating evidence.

B. Penalty-Phase Counsel’s Opening and Closing Statements

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The state courts’ finding that Leinster’s comments did not constitute

deficient performance was not an unreasonable application of the first prong of

Strickland. At the evidentiary hearing, Leinster testified that he made the

challenged remarks because he was concerned about losing credibility with the

jury if he disputed its first-degree murder conviction by arguing that Windom did

not act in a premeditated manner. As the district court pointed out, the Supreme

Court has recognized that counsel is not deficient for being candid about his

client’s crimes and unwilling to challenge the jury’s finding of guilt. See Florida

v. Nixon, 543 U.S. 175, 190-92, 125 S. Ct. 551, 562-63 (2004). Further, the record

does not support Windom’s assertion that Leinster conceded a lack of mitigation.

In fact, it shows that Leinster affirmatively argued for the existence of the statutory

mitigating circumstance of extreme mental or emotional disturbance at the time of

the offense. While Leinster noted that some of the mitigation factors “don’t make

any sense at all,” he stated that “some of them had a lot of bearing,” and reminded

the jury that several witnesses who observed Windom on the day of the murders

testified that Windom “[was] not who [they] had seen all his life. He was

crazy . . . [h]e wasn’t himself.” A1 at 96-97. Leinster further argued that “we

won’t ever know” what happened on the day of the murders inside Windom’s

mind, or “whatever bizarre configuration of relays took place that day that caused

53
him to do this,” because “nobody says today, I think I’ll go out and shoot four

people. Something happened, and that is all they called the doctor for.” Id.

The state court’s conclusion that Windom suffered no prejudice as a result of

Leinster’s remarks also was not objectively unreasonable. As noted above, given

the strength of the state’s case for aggravation and the brutal nature of Windom’s

crimes, we do not believe that a different closing argument would have resulted in

a lesser sentence or that Leinster’s remarks in any way undermined the reliability

of the jury’s death recommendation.

III. CONCLUSION

The district court correctly denied Windom’s petition for habeas relief as to

both claims of ineffective assistance of counsel. Given the aggravating nature of

Windom’s crimes and the state’s potential rebuttal evidence, we find there to be no

reasonable probability that the judge or the jury, even if confronted with all

available mitigating evidence related to Windom’s mental health problems,

troubled upbringing, or social background, would have concluded that this

evidence was of sufficient weight to preclude imposition of a death sentence.

Windom also failed to establish that trial counsel’s statements during opening and

closing arguments reflected an abdication of counsel’s duty of advocacy or, even if

they were improper, that he was prejudiced thereby. Accordingly, the judgment of

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the district court is AFFIRMED.

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