FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 3, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 07-15528

D. C. Docket No. 04-00333-CV-RH-EMT

BRUCE DOUGLAS PACE,

 Petitioner-Appellant,

versus

WALTER A. MCNEIL,

BILL MCCOLLUM, 

 

 Respondents-Appellees.

 

Appeal from the United States District Court

for the Northern District of Florida 

 

(February 3, 2009)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:
Petitioner Bruce Douglas Pace, a Florida death-row inmate, appeals the

judgment of the United States District Court for the Northern District of Florida

denying his petition for writ of habeas corpus, brought pursuant to 28 U.S.C. §

2254. His appeal presents one issue: whether trial counsel rendered ineffective

assistance of counsel, in violation of the Sixth and Fourteenth Amendments, by

failing to investigate and present evidence of Pace’s substance abuse to his mental

health experts and thereafter to the jury during the penalty phase of his capital

trial. We resolve this issue against Pace and accordingly affirm.

1

I.

A.

The events in this case took place in November 1988 in and around Bagdad,

Florida, a small town in Santa Rosa County. In the evening of November 4, 1988,

Frankie Covington, the daughter-in-law of Floyd Covington, a taxicab driver,

contacted the Santa Rosa County Sheriff’s Office and reported Floyd Covington

missing. Three days later, Sheriff’s deputies found Covington’s bloodstained

taxicab in a wooded area near Bagdad. Bloodstain patterns indicated that a

 Pace’s petition asserted six separate constitutional claims. The district court denied all 1

six. Pace filed a notice of appeal and the district court issued a certificate of appealability

pursuant to 28 U.S.C. § 2254(c) limiting his appeal to one issue: Whether penalty phase counsel

rendered ineffective assistance in the “failure to develop and present sentencing mitigation

evidence (including lay and expert testimony) relating to substance abuse.” We have framed the

issue in different language for convenience of discussion. 

2
passenger shot Covington while Covington was sitting in the taxicab’s driver’s

seat. On November 10, investigators found Covington’s body in another wooded

area approximately twelve miles from where the taxicab was located. Covington

had been shot twice in the chest with a shotgun. A shotgun shell was found inside

Covington’s chest cavity, indicating that the shotgun had been fired at a very close

range. The medical examiner’s office fixed the time of death as sometime on

November 4. 

On December 14, 1988, a Santa Rosa County grand jury returned a twocount indictment against Bruce Douglas Pace charging Pace with first-degree

murder and armed robbery. At his arraignment, the Santa Rosa County Circuit

Court declared Pace indigent and appointed two lawyers, Samuel Hall and Randall

Etheridge, to represent him. Pace admitted to these attorneys that he killed

2

Covington but, as was his right, he entered a plea of not guilty and stood trial

before a jury. The State sought the death penalty.

 Hall and Etheridge were assistant public defenders in the office of the Public Defender 2

for the First Judicial Circuit of Florida, which consists of four counties: Santa Rosa, Walton,

Okaloosa, and Escambia. Hall and Etheridge were stationed in Milton, the county seat of Santa

Rosa County. Kim Skievaski and Richard Hill, assistant state attorneys in the office of the State

Attorney for the First Judicial Circuit of Florida, served as counsel for the State. The pre-trial

and trial proceedings took place in Milton.

3
B.

The trial began in the Santa Rosa County Circuit Court on August 23, 1989,

before Judge Ben Gordon. The State presented evidence that Pace and Covington

were close friends and saw each other almost daily. Pace was twenty-nine years

old; Covington was seventy years old and on Social Security. Though they were

not related, Covington was like an uncle to Pace. 

Angela Pace, a cousin, testified that, on November 3, Pace told her that he

was going to do something he “hated to do” because he needed money. Orestine

Franklin, Pace’s aunt, testified that she saw Pace driving Covington’s taxicab the

next day, November 4.

Michael Green, a childhood friend of Pace, testified that sometime during

the day of November 5, he and Pace went to a wooded area adjacent to a vacant

house to shoot squirrels with Pace’s 12-gauge shotgun. Pace retrieved his shotgun

from some shrubbery on the side of the vacant house; when they finished shooting,

he left the shotgun on the front porch of the house.

Harvey Rich, Pace’s stepfather, identified the shotgun as one owned by

Pace’s brother. Rich also testified that he found two shotgun shells in his front

yard on the evening of November 5. These shells were identical to the shotgun

shell found inside the victim’s body. 

4
After Rich identified the shotgun, he repeated a conversation he had with

Pace on the morning of November 7. Pace lived with Rich and Pace’s mother,

Lillian Rich. On November 7, Pace, who had been away from the Rich home for

several days, returned to the residence and told Rich that he was in trouble and

needed to leave. When Rich sought an explanation, Pace related the following

story. On the night of November 3, Covington drove Pace to Rich’s house. After

Covington dropped him off, Pace discovered that he had lost his house key, so he

entered the house through an open window. When he went into his bedroom,

someone choked him and he lost consciousness. He awoke in a wooded area

several miles away, lying next to a shotgun and Covington’s taxicab. When he

noticed blood splattered about the cab, he took the shotgun and fled the scene. 

Harvey and Lillian Rich were at home at the time Pace claimed to have

encountered the intruder in his bedroom. The prosecutor asked them whether they

had later observed any signs of struggle in the house or in Pace’s room. Both said

that they had not.

In questioning Rich on cross-examination, Randall Etheridge, who served as

lead defense counsel during the guilt phase of the trial, implied that an intruder

could have been in the house and attacked Pace without awakening the Riches or

leaving any signs of a scuffle. This questioning laid the groundwork for

5
Etheridge’s closing argument to the jury that someone other than Pace killed

Covington.

The State rested its case on August 25. Pace rested his case moments later 

without calling any witnesses. After closing argument and receipt of the court’s

instructions, the jury retired to deliberate. Two hours later, the jury returned a

verdict of guilty on both counts of the indictment. 

In the penalty phase, which began the next day, the State introduced, as an

exhibit, a certified copy of a judgment of the Santa Rosa County Circuit Court

dated December 4, 1981, adjudging Pace guilty of strong-arm robbery and

sentencing him to prison for fifteen years. Robert Mann, a probation officer for

the State of Florida, testified that Pace was on parole at the time of the Covington

murder. Pace had been released from prison on August 20, 1986.

Samuel Hall, lead defense counsel for Pace in the penalty phase, called five

witnesses. Santa Rosa County corrections officer Paul Campbell testified that

3

Pace was a model prisoner, “extremely cooperative,” “respectful,” and gave no

trouble. Hurley Manning, Pace’s high school football coach, testified that Pace

 Prior to trial, after evaluating the strength of the State’s case, which they considered

3

overwhelming, Hall and Etheridge concluded that Pace’s best chance of a favorable verdict

would be in the penalty phase. Because Hall had more experience than Etheridge, especially in 

capital cases, Etheridge was lead counsel in the trial phase and Hall was lead counsel in the

penalty phase.

6
was hard working and the “type of kid that you would like to have in the

program.” Robert Settles, Pace’s high school shop teacher who, after leaving

teaching, had opened a truss manufacturing business and hired Pace to cut trusses,

testified that Pace had been a master sawman with great potential but had not

always been reliable. Evelyn Rich, Pace’s aunt, testified that Pace was a “loving,

caring person” who came from a good, supportive family. Finally, Pace’s mother

Lillian Rich pleaded compassionately for her son’s life. She described how he

worked to support the family when he was just thirteen years old after his

stepfather left the home. She also testified that Pace suffered a head injury as a

young child that rendered him unconscious. 

In closing argument, the prosecutor argued that five aggravated

circumstances dictated a death penalty verdict: (1) Pace was on parole at the time

of the murder; (2) Pace had been previously convicted of a violent felony; (3) he

committed the murder during a robbery; (4) Pace committed the crime to avoid

arrest; and (5) he committed the murder for financial gain. Hall, in response, 4

argued that the prosecutor had exaggerated the aggravating circumstances. He

 See Fla. Stat. § 921.141(5) (1989) (listing aggravating circumstances in effect at the 4

time of Pace’s trial). 

7
urged the jury to have mercy on Pace because Pace was a human being and a good

person with a good heart. 

The jury recommended by a vote of seven to five that Pace be sentenced to

death. The trial court followed the jury’s recommendation and, on November 16,

5

1989, sentenced Pace to death for first-degree murder and fifteen years

imprisonment for the armed robbery charge. The court found three aggravating

circumstances: (1) Pace was on parole at the time of the murder; (2) Pace had

been previously convicted of a violent felony; and (3) the murder was committed

during the course of a robbery. The court found no mitigating circumstances. 

6

Pace appealed his convictions and death sentence to the Florida Supreme

Court. The supreme court affirmed Pace’s convictions and death sentence, Pace 7

v. State, 596 So. 2d 1034, 1035-36 (Fla. 1992), and the Supreme Court of the

 The record does not indicate the length of the jury’s deliberation at the close of the 5

penalty phase of trial.

 See Fla. Stat. § 921.141(6) (1989) (listing mitigating circumstances in effect at the time 6

of Pace’s trial). In addition to the statutory mitigating circumstances, the court took into account

“as a mitigating factor, any aspect of a defendant's character or record and any of the

circumstances of the offense that the defendant proffer[ed] as a basis for a sentence less than

death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978). 

 The issue certified in the certificate of appealability, which we decide today, was 7

presented to the state courts in Pace’s motion for post-conviction relief. None of the issues

presented to the supreme court on direct appeal are implicated in the instant appeal.

8
United States denied certiorari review, Pace v. Florida, 506 U.S. 885, 113 S. Ct.

244, 121 L. Ed. 2d 178 (1992). 

II.

On March 7, 1997, Pace, represented by court appointed counsel (“collateral

counsel”), moved the Santa Rosa County Circuit Court to vacate his convictions

and death sentence pursuant to Florida Rule of Criminal Procedure 3.850. The

motion was assigned to Judge Paul Rasmussen, who presided over its disposition.8

Pace’s motion presented twenty-one claims for relief, Pace v. State, 854 So.

2d 167, 170 n.2 (Fla. 2003), including the ineffective assistance of counsel claim

now before us. That claim concerns the penalty phase of Pace’s trial and focuses

on the manner in which Samuel Hall dealt with Pace’s addiction to crack

cocaine—specifically, whether Hall’s investigation into the extent of this

addiction was adequate; whether he fully informed Pace’s mental health experts

about the addiction; and whether reasonably competent defense counsel would

have treated the addiction as a mitigating circumstance and presented it to the jury

at the penalty phase of the trial.

A.

 John M. Jackson, Scott Mario, and Andrew Thomas, Assistant Capital Collateral 8

Counsel in the Northern Region Office handled Pace’s Rule 3.850 motion. 

9
The circuit court held an evidentiary hearing on these three issues to give

collateral counsel an opportunity to prove that Hall’s performance was

constitutionally deficient. To that end, collateral counsel summoned three groups

of witnesses: (1) members of Pace’s family or friends, Kenneth Bembo, Margaret

Dixon, Barry Copeland, Melanie Pace, Ora Kay Jones, and Cynthia Jones; (2) the

two mental health experts Hall retained to assist him in preparing for the penalty

phase of the trial, Dr. James Larson, a psychologist, and Dr. Peter Szmurlo, a

psychiatrist; and (3) the two mental health experts collateral counsel retained, Dr. 9

Barry Crown, a psychologist, and Dr. Michael Herkov, a psychiatrist. These

witnesses’ testimony is summarized below.

The first group of witnesses testified to Pace’s use of crack cocaine. The 10

first group stated collectively that Pace used a significant amount of crack cocaine

in the months preceding the murder. Kenneth Bembo estimated that Pace used

between $50 to $100 of crack cocaine per day. Barry Copeland said that Pace

used between $300 to $500 of crack cocaine per day. Several witnesses testified

that when Pace used crack cocaine, he had poor hygiene and would act nervous

 Drs. Larson and Szmurlo also assisted Etheridge to determine whether Pace had a 9

defense to the charges based on his mental condition at the time of the Covington murder. The

doctors found no basis for such a defense.

 In addition to presenting the testimony of these witnesses in open court, collateral

10

counsel submitted affidavits they had obtained from these witnesses.

10
and paranoid. These witnesses also testified that Pace abused alcohol while using

crack cocaine. 

Kenneth Bembo, Melanie Pace, and Ora Kay Jones said that Pace

manifested these symptoms of crack cocaine abuse during the week preceding the

murder. However, Cynthia Jones and Melanie Pace said that on the day before

and day of the murder, although Pace appeared to have poor personal hygiene and

smelled of alcohol, he did not seem to be under the influence of alcohol or drugs.

In cross-examination, the State showed that five of these witnesses had

testified on deposition taken by defense counsel prior to Pace’s trial. Though

11

questioned about Pace’s drug use at that time, they did not offer the information

they provided in the affidavits and at the evidentiary hearing.

The second group of witnesses consisted of Drs. Larson and Szmurlo. Hall

retained Dr. Larson to evaluate Pace to determine whether any psychological

mitigating factors could be developed for use in the penalty phase of the trial. Dr.

Larson administered psychological tests and interviewed Pace. Based on the

results of the psychological tests, Dr. Larson’s observations of Pace during the

interview, and the background information Hall provided, which he found

 The attorneys who prosecuted Pace did not represent the State in the Rule 3.850 11

proceeding. Assistant State Attorney John Molchan and Assistant Attorney General Curtis

French represented the State.

11
sufficient for his purposes, Dr. Larson concluded that a psychological mitigating

factor based on mental impairment was not present in Pace’s case. He reached 12

this conclusion notwithstanding Pace’s drug abuse. Though Dr. Larson noted in

his report that Pace used crack cocaine regularly, he did not recommend that an

addictionologist evaluate Pace’s condition. 

By the time collateral counsel called him to testify at the evidentiary hearing

eleven years later, however, Dr. Larson had revised his thinking. Dr. Larson

reached the view that Pace was drug dependent and in a “chronic cycle of abusing

alcohol and drugs” at the time of the murder. Thus, he testified that Pace met the

statutory mitigator of being substantially impaired at the time of the crime. Dr.

Larson came to this view after reading the affidavits of the first group provided by

collateral counsel. 

Similarly, Dr. Peter Szmurlo met with Pace, conducted a psychiatric

evaluation—which involved consideration of Pace’s behavior history, the results

of the psychological tests Dr. Larson administered, and Dr. Szmurlo’s clinical

observations of Pace—and was unable to identify a psychiatric mitigating

 At the time of Pace’s sentencing, Fla. Stat. § 921.141 governed sentencing in death 12

penalty cases. Fla. Stat. § 921.141(6) (1989). This lists as a mitigating circumstance: “(f) The

capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to

the requirements of law was substantially impaired.”

12
circumstance. Dr. Szmurlo was unable to do so even though Pace told Dr.

Szmurlo that he used crack cocaine for three months prior to the murder. Dr.

Szmurlo believed that Pace was a crack cocaine addict. Although he was not

familiar with the mitigating circumstances listed in the Florida statute at the time

he evaluated Pace, Dr. Szmurlo understood that being intoxicated, under the

influence of drugs, or having a preexisting psychiatric condition at the time of a

crime would constitute a mitigating factor. However, in light of what Pace told

Dr. Szmurlo about his mental and physical condition leading up to and around the

time of the murder, Dr. Szmurlo concluded that Pace was not under the influence

of drugs when he committed the crime. As Dr. Szmurlo stated in his expert report

to Hall, he found no mitigating psychiatric conditions “except for a rather heavy

use of cocaine prior to the offense.” Like Dr. Larson, Dr. Szmurlo believed that he

had sufficient information to evaluate Pace and did not recommend that an

addictionologist assess Pace. 

At the evidentiary hearing, Dr. Szmurlo testified that collateral counsel

provided him the first group’s affidavits which indicated that Pace’s cocaine habit

was of a longer duration and more severe than Dr. Szmurlo initially believed and

that habit caused Pace to lose sleep and quit eating. Assuming the truth of the

affidavits’ statements, Dr. Szmurlo opined that, at the time of the murder, Pace’s

13
crack cocaine addiction substantially impaired his ability to conform his actions to

the requirements of law.

The third group of witnesses consisted of Drs. Crown and Herkov. 

Collateral counsel hired Dr. Barry Crown, a psychologist, to perform a

neuropsychological examination of Pace in 1994, six years after the murder. Dr.

Crown testified that Pace was of average intelligence but his “intellectual

efficiency” was significantly diminished such that he had the problem-solving

abilities of a thirteen-year old child. Dr. Crown added that drug addiction

increased the likelihood that a person with Pace’s intellectual capabilities would

engage in antisocial behavior.

Collateral counsel hired Dr. Michael Herkov because he was a psychiatrist

with expertise in cocaine addiction. Dr. Herkov interviewed Pace on June 1, 2000

and testified that, based on that interview and his review of the documents

including the reports of Drs. Larson and Szmurlo, Pace was a cocaine addict on a

“cocaine binge” several days before the murder. However, Dr. Herkov testified

that Pace did not use crack cocaine on the day of the murder or the previous day. 

Dr. Herkov opined that Pace’s ongoing crack cocaine addiction and binge

substantially impaired his ability to conform his behavior to the requirements of

the law at the time of the murder.

14
The State countered collateral counsel’s presentation with the testimony of

James Martin, a Public Defender Office investigator, and Samuel Hall. Martin

testified that he interviewed Pace on November 10, 1988, at the Santa Rosa

County Jail. At that meeting, Pace admitted that he killed Covington. Pace told

13

Martin that he used crack cocaine but did not use it on the day before or the day of

the murder. Martin said that, during the interview, Pace was coherent and did not

appear to be under the influence of drugs or alcohol.

Hall testified that his penalty phase strategy was 

to try to tell the jury that Bruce Pace was somebody that had a life, a

human being, he should be saved. . . . Even though he had this other

charge, this strong arm robbery [conviction in 1981,] that it still was

out of character for him to have committed this crime. 

Hall knew that Pace was a crack cocaine addict but wanted to keep that fact from

the jury if at all possible because introducing evidence of Pace’s drug use was a

“two-edged sword”:

Put on all of this good stuff to show what a good person he is, and

then also, ladies and gentlemen, also by the way, he is [a] drug addict

and a drug user. I just thought that it was a negative. And I could be

 Pace was not indicted until December 14, 1988, so the question arises as to why Martin 13

would have met Pace at the jail on November 10. The record does not provide an explicit

explanation, but it suggests that Pace had been arrested for violating Fla. Stat. § 790.23,

prohibiting Florida felons from possessing a firearm. At Pace’s arraignment on the charges in

this case, Samuel Hall informed the court that he had been appointed to represent Pace in the

unlawful possession of firearm case. It is possible that Martin went to the jail on November 10

to interview Pace about the unlawful possession of firearm charge.

15
wrong and it would be something that the jury can consider as a

mitigator, but that was my reasoning. . . . There may be some people

that just dislike people that use drugs and vote for death just because

of that.

Hall made that strategic choice to portray Pace as a decent human being and

to steer clear of the crack cocaine addiction for two reasons. First, Pace told Hall

and Martin that Pace did not use drugs on the day of the murder or the previous

day. Hall had no reason to believe that Pace was lying, so he made no attempt to

locate someone who would testify that Pace was high on the day of or day before

the murder. Moreover, Pace’s general useage of crack cocaine did not, in Hall’s 14

mind, constitute a strong mitigating circumstance. Second, neither Dr. Larson nor

Dr. Szmurlo, who were aware of Pace’s crack cocaine habit, suggested using

intoxication as a mitigating factor. The doctors also ruled out as a mitigating

circumstance evidence of brain damage, organic brain dysfunction, or serious

mental disorder. 

B.

On July 11, 2001, the circuit court denied Pace’s Rule 3.850 motion. The

court denied relief after applying the two-pronged standard for ineffective

 When questioned on cross-examination why Hall thought Pace was telling the truth 14

about being sober at the time of the murder, Hall replied, “Why would he lie to me about the

drugs, the alcohol, or the being intoxicated, and tell me [that he murdered Covington,] something

that is a lot worse than whether or not he used drugs or not?”

16
assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In short, to satisfy that standard, a

defendant “must show that: (1) counsel’s performance was deficient because it fell

below an objective standard of reasonableness; and (2) the deficient performance

prejudiced the defense.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209

(11th Cir. 2007).

With respect to the first prong, the circuit court saw no basis to find that

Hall’s performance was constitutionally deficient in preparing for and handling

the penalty phase of trial. To the contrary, the court found that the investigation

Hall conducted in preparing for that phase was thorough and that the strategy he

chose to follow at trial was entirely reasonable. Having reached this decision, the

court considered its Strickland analysis closed and denied Pace’s ineffective

assistance claim. The court also rejected Pace’s other grounds for Rule 3.850

relief.

III.

Pace appealed to the Florida Supreme Court from the denial. On May 22,

2003, the supreme court affirmed. Pace v. State, 854 So. 2d 167 (Fl. 2003). We

15

 At the same time, Pace petitioned the supreme court for a writ of habeas corpus on the 15

ground that the court-appointed attorneys who handled his direct appeal provided ineffective

assistance of counsel. The court denied the writ and that decision is not implicated in this appeal.

17
may not disturb the supreme court’s decision unless it “(1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the United States,

or (2) resulted in a decision that was based on an unreasonable determination of

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

U.S.C. § 2254(d). Thus, we review in considerable detail and quote extensively

from the supreme court’s opinion finding no merit in the ineffective assistance

claim at hand.

18
The Florida Supreme Court recited the applicable Strickland standard, and

16

then, applying that standard, considered the circuit court’s findings of fact and

conclusions of law.17

 The supreme court stated: 16

To establish a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. 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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052[, 2064], 80 L.Ed.2d

674 (1984). There is a “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Additionally, “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.” To prove prejudice, “[t]he defendant must show that there is a reasonable

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

proceedings would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Pace, 854 So. 2d at 172 (citations omitted).

 The supreme court employed the following standard of review in reviewing the circuit 17

court’s disposition of Pace’s claim:

[T]he performance and prejudice prongs are mixed questions of law and fact

subject to a de novo review standard but . . . the trial court’s factual findings are to

be given deference. So long as its decisions are supported by competent,

substantial evidence, this Court will not substitute its judgment for that of the trial

19
Pace claimed that Hall rendered ineffective assistance in preparing for and

representing Pace in the penalty phase of the trial. Specifically, Pace articulated

three areas of deficiency: (1) Hall’s failure to adequately investigate Pace’s

addiction to crack cocaine; (2) Hall’s failure to present to Drs. Larson and Szmurlo

the evidence of crack addiction that an adequate investigation would have

produced; and (3) Hall’s failure to present such evidence to the jury.

With respect to the first deficiency, that Hall failed to adequately investigate

Pace’s crack cocaine addiction, the circuit court found, as summarized by the

supreme court, that:

Hall’s [pre-trial] investigation consisted of the following: (1)

deposing several witnesses; (2) utilizing an investigator to interview

witnesses for potential mitigating evidence; (3) obtaining witness

statements from the State; (4) obtaining Pace's school records; and (4)

securing two mental health experts, psychologist Dr. James Larson

and psychiatrist Dr. Peter Szmurlo, to examine Pace. . . . Pace

consistently related to Hall that he was suffering from no drug-related

effects at the time of the offense. . . . Hall interviewed several of

Pace's friends and relatives regarding Pace's crack use but, as the

postconviction court stated, “individuals close to Pace failed to

disclose any information that either augmented or sharply

contradicted Pace’s own self reports of crack use.” 

court on questions of fact and, likewise, on the credibility of the witnesses and the

weight to be given to the evidence by the trial court. We recognize and honor the

trial court’s superior vantage point in assessing the credibility of witnesses and in

making findings of fact.

Pace, 854 So. 2d at 172 (citations omitted). 

20
The supreme court agreed with the circuit court that Hall’s investigation into

Pace’s crack cocaine use was reasonable. Hall not only relied on Pace’s repeated

assertions to him—that he was not on the drug before or during the murder—but

he also explored the subject with Pace’s family and friends.

The supreme court then turned to Pace’s second deficiency, that Hall

rendered ineffective assistance by failing to provide Drs. Larson and Szmurlo

further evidence of Pace’s crack cocaine addiction, evidence that, according to

collateral counsel, a reasonable investigation would have disclosed. The court

found that “[collateral] counsel provided Dr. Larson and Dr. Szmurlo with recent

affidavits from Pace’s friends and family, the presentence investigation report for

Pace’s strong arm robbery [in 1981], and Pace’s juvenile records.” Id. at 174 n.5. 

From this information, the doctors knew and expressed in their reports that Pace

abused crack cocaine but that he was not high on crack at the time he committed

the charged offenses. Id. at 173. “Neither expert requested that Pace be evaluated

by an addiction specialist nor indicated that [Pace’s] crack use might have affected

his mental health at the time of the offense.” Id. 

Pace contended that Drs. Larson and Szmurlo misdiagnosed Pace’s mental

condition and if Hall had provided them with “the information that postconviction

counsel provided them, both experts would have found that both statutory mental

21
mitigators were applicable.” Id. at 174. The circuit court held this contention

without merit for several reasons.

First and foremost, trial counsel's investigation into [Pace’s] drug use

was reasonable based upon the representations of [Pace] and others. 

Second, counsel did not withhold any essential information from

either expert that was within their possession. Third, neither expert

believed at the time of the original evaluation that they had

inadequate information to render a diagnosis nor requested additional

information from counsel. Fourth, counsel did provide the experts

with information that contained insight into [Pace’s] background.

The record reveals that counsel provided Szmurlo and Larson with

police investigative reports that contained information pertaining to

[Pace’s] crack use, hygiene issues, emotional state, and the fact that

he stayed in an abandoned house. Counsel also provided Dr. Larson

with numerous pretrial statements and depositions. In addition to the

background materials, each expert had an opportunity to interview

[Pace] and Pace reported heavy crack use to both of them. Despite

their knowledge of his crack use and aberrant behavior, both experts

failed to develop the presence of organic brain damage or statutory

mental mitigation during their initial evaluations. In addition, neither

expert recommended that an addictions specialist examine Pace. 

Moreover, the fact that [Pace] has now secured favorable testimony of

mental mitigation and brain damage from Dr. Michael Herkov and

Dr. Barry Crown does not render counsel's investigation into

mitigation ineffective. See Asay v. State, 769 So.2d 974, 986

(Fla.2000); Jones v. State, 732 So.2d 313, 320 (Fla.1999); Rose v.

State, 617 So.2d 291, 294 (Fla.1993). See also Davis v. Singletary,

119 F.3d 1471, 1475 (11th Cir.1997) (stating “mere fact a defendant

can find, years after the fact, a mental health expert who will testify

favorably for him does not demonstrate that trial counsel was

ineffective for failing to produce that expert at trial.”). Counsel

diligently obtained two mental health professionals to examine Pace

prior to trial but those experts failed to provide counsel with

22
favorable information. As indicated above, counsel is not deficient

for reasonably relying upon the opinions of Szmurlo and Larson and

not seeking out additional experts. See Card v. Dugger, 911 F.2d

1494, 1513 (11 Cir.1990) (stating counsel is not required to shop for a

psychiatrist who will testify in a particular way).

Furthermore, the fact that Szmurlo and Larson have now changed

their diagnosis does not render counsel's background investigation

ineffective. At the evidentiary hearing, Szmurlo and Larson both

testified that they currently believe that Pace was suffering from an

emotional disturbance at the time of the murder and his ability to

conform his conduct to the requirements of the law was impaired. 

However, the information that Szmurlo and Larson attribute to this

change in opinion is comprised primarily of individuals who have

changed their accounts of Pace's behavior or other information that

counsel had no reason to pursue due to the representations of [Pace]

and others.

Of the 10 recently obtained affidavits that collateral counsel

submitted to the experts, trial counsel had deposed five of the affiants

prior to Pace's trial. Barry Copeland, Ella Mae Green, Melanie Pace,

Cynthia Pace, and Hilda Pace were each questioned regarding Pace's

drug use and none of these witnesses offered information they

provided in the recent affidavits. Trial counsel cannot be deemed

ineffective for failing to provide information to mental heath experts

that the affiants chose not to disclose to counsel when originally

questioned. As for the remaining affiants, trial counsel had no reason

to pursue these individuals in light of the information they received

from [Pace] and his friends and family.

Id. at 174-75. The supreme court held that the evidence before the circuit court

supported its factual findings. Reviewing de novo the circuit court’s conclusion of

law that Hall was not ineffective in failing to disclose to Drs. Larson and Szmurlo

the evidence provided by the ten affiants collateral counsel obtained, the supreme

23
court held that the failure did not constitute ineffective assistance. Id. at 176.

The supreme court then considered the third deficiency, that Hall was

ineffective in failing to present to the jury evidence of Pace’s addictive abuse of

crack cocaine. The circuit court “concluded that ‘given the unfavorable

psychological opinions [by Drs. Larson and Szmurlo], counsel’s tactical decision

to humanize [Pace] and not present any evidence of his drug use was a reasonable

strategy.’” Id. at 173. The supreme court held that the circuit court’s finding that

Hall made an informed “strategic decision to present Pace’s positive attributes

over evidence of his crack use” was supported by “substantial competent

evidence.” Id. In reaching this holding, the supreme court rejected Pace’s

argument that Hall and the circuit court erroneously relied upon the assumption

that Pace had to be under the influence of drugs at the time of the offense:

[W]e do not find that either Hall or the postconviction court relied

upon such an assumption. Hall’s testimony was that in his experience,

Pace’s cocaine addiction would only be considered “significantly”

mitigating if some effect of the addiction could be linked to Pace’s

conduct at the time of the offense. Because Pace continued to assert

that he was not affected by his crack use at the time of the offense and

because Dr. Larson and Dr. Szmurlo, the experts hired by Hall, did

not report that Pace's crack use affected his mental health at the time

of the offense, Hall concluded that evidence of Pace's past crack use

would be more prejudicial than beneficial under the circumstances of

the defense. Hall concluded that the evidence of crack use would be

contrary to his strategic efforts to emphasize with the jury that Pace

“had some good qualities and was a human being who should be

24
saved.” Our review of the postconviction order reveals that the court

made a factual determination based upon the evidence presented that

Hall's decision was strategic and that the postconviction court applied

the correct rule of law.

Id. at 174.

In sum, the supreme court, on de novo review, concluded that Pace failed to

prove that Hall’s performance in preparing for or presenting Pace’s case in the

penalty phase fell below the Strickland performance standard. The court therefore

affirmed the circuit court’s disposition of the claim at issue along with its denial of

the other claims Pace’s Rule 3.850 motion had raised. Pace petitioned the United

States Supreme Court for writ of certiorari and the Supreme Court denied Pace’s

petition on January 20, 2004. Pace v. Florida, 540 U.S. 1153, 124 S. Ct. 1155, 157

L. Ed. 2d 1049 (2004).

IV.

On September 28, 2004, Pace filed a timely petition for a writ of habeas

corpus in the United States District Court for the Northern District of Florida

seeking relief on the same ineffective assistance of counsel claim the supreme

court rejected and five other claims of constitutional error as well. On October 1,

2007, the district court denied Pace’s petition in full. It rejected the ineffective

assistance claim at issue here as follows:

25
In short, the attorney determined that the possible benefit of

presenting testimony regarding Mr. Pace’s cocaine use was

outweighed by the risk that it would impact the jury negatively. He

therefore made a tactical decision not to present evidence of the

cocaine use in mitigation. Given the totality of the circumstances,

Mr. Pace has not demonstrated that the attorney’s representation fell

below an objective standard of reasonableness.

Or at least, so a state court could reasonably conclude, as the Florida

Supreme Court did. The court’s decision was not contrary to, nor an

unreasonable application of, clearly established federal law. The court

clearly identified Strickland and other relevant state and federal cases

interpreting Strickland, and it applied those decisions to the facts of Mr.

Pace’s case. There is no case decided by the United States Supreme Court

with materially indistinguishable facts that reached a different result. Nor

was the Florida Supreme Court’s decision based on an unreasonable

determination of the facts. . . .

The Florida Supreme Court held that Mr. Pace’s penalty phase

counsel did not render ineffective assistance by failing adequately to

prepare the mental health experts or by relying on their opinions. The

court’s holding is not an unreasonable application of, nor contrary to,

settled federal law, and the determination is not based on an

unreasonable determination of the facts.

 Pace filed a timely notice of appeal to this court. After he filed the notice,

he applied to the district court for a certificate of appealability. The court granted

his application on one issue: whether trial counsel rendered ineffective assistance

of counsel, in violation of the Sixth and Fourteenth Amendments, for failing to

investigate and present evidence of Pace’s substance abuse to his mental health

experts and thereafter to the jury during the penalty phase of his capital trial. 

26
V.

Pace’s petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996, which establishes a “general framework of substantial

deference” for reviewing “every issue that the state courts have decided[.]” Diaz

v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir. 2005). As

discussed before, a federal court may not issue a writ of habeas corpus setting

aside a state court’s denial of a federal constitutional claim unless the petitioner

demonstrates that the state court’s decision is flawed for one or both of the reasons

listed in 28 U.S.C. § 2254(d). The first reason is that the state court misapplied

the relevant holdings of the United States Supreme Court; the second reason is 18

that the state court’s findings of fact lack evidentiary support. See Newland v.

Hall, 527 F.3d 1162, 1184 (11th Cir. 2008). In assessing the state court’s findings

of fact, we “presume” those findings are “correct.” See id.; 28 U.S.C. §

2254(e)(1). If the petitioner contends that the findings of fact are not correct, he

bears the burden of establishing that they are not correct by “clear and convincing

 It is clear that the relevant Supreme Court precedent for our purposes is Strickland v. 18

Washington, because that decision was handed down prior to the Supreme Court’s denial of

Pace’s petition for a writ of certiorari to review the supreme court’s denial of Rule 3.850 relief. 

See generally Newland, 527 F.3d at 1197-1202.

27
evidence.” Id. (“The [petitioner] shall have the burden of rebutting the

19

presumption of correctness by clear and convincing evidence.”).

Pace has never challenged the supreme court’s findings of fact as lacking

evidentiary support, either in litigating his petition in the district court or in his

brief on appeal. Nor does he challenge the United States Supreme Court

20

precedent the Florida Supreme Court applied in rejecting his ineffective assistance

claim. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, clearly controlled the issue

in this case and the state court applied it. His argument on appeal therefore boils

down to whether the supreme court misapplied Strickland in holding that defense

counsel made a reasonable strategic choice in opting to forego additional

investigation into Pace’s crack cocaine addiction and portraying Pace as a decent

human being rather than as a crack cocaine addict.

“Strategic choices made after thorough investigation of law and facts

relevant to possible options are virtually unchallengeable.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068. That is to say, “[c]ourts conduct a highly deferential

 If the district court does not hold an evidentiary hearing on the claimant’s issues but 19

instead, relies on the state court’s findings of fact made following an evidentiary hearing on the

claim, the petitioner must rebut the presumption of correctness by pointing to clear and

convincing evidence in the record of that evidentiary hearing.

 In the supreme court, Pace did not challenge as clearly erroneous the findings of fact 20

the circuit court made in denying his Rule 3.850 motion. 

28
review of counsel’s performance and indulge the strong presumption that

counsel’s performance was reasonable.” Stewart, 476 F.3d at 1209 (internal

quotation marks omitted). 

Here, the supreme court found that defense counsel made a reasonable

investigation into Pace’s drug abuse. Martin and Hall both questioned Pace

regarding his drug abuse and Pace told them that he abused crack cocaine and had

been doing so for months preceding the murder. Pace made the same statement to

Drs. Larson and Szmurlo. Szmurlo’s report to Hall stated that Pace was engaged

in “a rather heavy use of cocaine prior to the offense.” Hall asked members of

Pace’s family and friends about his drug abuse; he took the depositions of five of

the ten people who gave collateral counsel the affidavits that were submitted to

Drs. Crown and Herkov. He took the depositions of those most likely to know 21

about Pace’s behavior; they revealed nothing significant about Pace’s drug use,

though they were asked about it point blank. 

Providing an affidavit that contradicts what the affiants previously said

under oath is not unknown:

 Florida affords defendants in criminal cases essentially the same discovery rights 21

litigants in civil cases enjoy. In this case, defense counsel took 11 depositions in addition to the

extensive open-file discovery the prosecution provided. 

29
It is common practice for petitioners attacking their death sentences

to submit affidavits from witnesses who say they could have supplied

additional mitigating circumstance evidence, had they been called. . . .

Such affidavits usually prove at most the wholly unremarkable fact

that with the luxury of time and the opportunity to focus resources on

specific parts of a made record, post-conviction counsel will

inevitably identify shortcomings in the performance of prior counsel.

Williams v. Head, 185 F.3d 1223, 1236 (11th Cir. 1999) (citations omitted). 

Implicit in the supreme court’s rejection of Pace’s ineffective assistance

claim is the notion that Hall went far enough in investigating Pace’s crack cocaine

addiction. Hall could have deposed all ten, instead of just five, of the witnesses

who gave affidavits to collateral counsel. However, “[t]o be effective, a lawyer is

not required to pursue every path until it bears fruit or until all hope withers . . . .

[A] decision to limit investigation is accorded a strong presumption of

reasonableness.” Id. at 1236-37 (citations omitted). Given the statements Pace

made to defense counsel, the investigator, and Drs. Larson and Szmurlo—that he

was not under the influence of crack cocaine or alcohol when he commited the

Covington murder—and what the witnesses said on deposition, we agree with the

supreme court that it was reasonable for counsel to limit their investigation into

Pace’s substance abuse addiction. We also agree with the supreme court that

“[t]rial counsel cannot be deemed ineffective for failing to provide information to

30
[Drs. Larson and Szmurlo] that the affiants chose not to disclose to counsel when

originally questioned.”22

Moreover, as Hall himself recognized, presenting evidence of a defendant’s

drug addiction to a jury is often a “two-edged sword”: while providing a

mitigating factor, such details may alienate the jury and offer little reason to lessen

the sentence. For example, in Housel v. Head, 238 F.3d 1289, 1296 (11th Cir.

2001), we held that an attorney’s strategy to show a “family-friendly side of

[defendant], rather than dwelling on the evidence of [his] extensive drug use and

drinking with a sociopathic biker crowd” was reasonable because the jury would

likely not consider alcohol and drug use to be mitigating. Here, as in Housel, Hall

chose to draw upon the sympathy of the jurors by portraying Pace as a good

person who helped and cared for his family rather than as a crack cocaine addict

with poor hygiene and a paranoid personality while on drugs. The supreme court

correctly held that this was a reasonable strategy choice.23

 We agree as well with the supreme court that the testimony of Dr. Herkov and Dr. 22

Crown was unconvincing. The “mere fact a defendant can find, years after the fact, a mental

health expert who will testify favorably for him does not demonstrate that trial counsel was

ineffective for failing to produce that expert at trial.” Davis v. Singletary, 119 F.3d 1471, 1475

(11th Cir. 1997). 

 We note in passing that neither collateral counsel nor the attorneys representing Pace in 23

these federal habeas proceedings have criticized Hall for presenting witnesses who described

Pace as a loving, caring person who came from a good, supportive family and was a decent

human being. Rather, their challenge is that Hall should have called witnesses to inform the jury

that Pace was a crack cocaine addict. Hall could have summoned Kenneth Bembo and Barry

31
VI.

There is no basis in this record to conclude that the Florida Supreme Court’s

decision denying Pace’s claim of ineffective assistance of counsel in the penalty

phase of the trial was contrary to, or involved an unreasonable application of,

clearly established Supreme Court precedent, or was based on an unreasonable

determination of the facts. We therefore resolve in the State’s favor the issue

presented in the certificate of appealability, and the district court’s decision

denying a writ of habeas corpus is, accordingly, 

AFFIRMED.

Copeland to establish that Pace needed between $50 to $500 per day to maintain his crack

addiction. This would have left it to the jury to speculate as to where Pace, who was

unemployed, might have found such funds. If Hall had called those witnesses, we can only

imagine, as Hall probably did, how the State would have used the drug addiction evidence in

cross-examining Hall’s character witnesses and in arguing that the death sentence was the

appropriate penalty under the circumstances.

32