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`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`____________________
`
`No. 15-15228
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`____________________
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`
`BILLY LEON KEARSE,
`
` Petitioner-Appellant,
`
`versus
`SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
`ATTORNEY
`GENERAL,
`STATE
`OF
`FLORIDA,
`
`
` Respondents-Appellees.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 2:09-cv-14240-WJZ
`____________________
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`[DO NOT PUBLISH]
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`____________________
`
`No. 15-15228
`
`____________________
`
`
`BILLY LEON KEARSE,
`
` Petitioner-Appellant,
`
`versus
`SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
`ATTORNEY
`GENERAL,
`STATE
`OF
`FLORIDA,
`
`
` Respondents-Appellees.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 2:09-cv-14240-WJZ
`____________________
`
`
`
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`Opinion of the Court
`
`15-15228
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`
`Before WILSON, LUCK, and ED CARNES, Circuit Judges.
`LUCK, Circuit Judge:
`Billy Kearse was convicted and sentenced to death for the
`1991 murder of police officer Danny Parrish. Thirty years later,
`Kearse appeals the denial of his petition for a writ of habeas corpus
`under 28 U.S.C. section 2254. He contends that the Florida Su-
`preme Court unreasonably applied Strickland v. Washington, 466
`U.S. 668 (1984) in denying claims that his trial counsel was ineffec-
`tive because he failed to investigate and prepare for the testimony
`of the state’s mental health expert and he failed to investigate and
`present evidence of Officer Parrish’s prior misconduct and difficul-
`ties dealing with the public. Kearse also contends that the Florida
`Supreme Court unreasonably applied Atkins v. Virginia, 536 U.S.
`304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005) in conclud-
`ing that his death sentence was not cruel and unusual even though
`he had low-level intellectual functioning, mental and emotional
`impairments, and was eighteen years and eighty-four days old at
`the time of the murder. After careful review of the briefs and the
`record, and with the benefit of oral argument, we affirm.
`
`
`
`
`
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`FACTUAL BACKGROUND AND PROCEDURAL HISTORY
`
`The Murder
`
`On the night of January 18, 1991, Kearse and his friend,
`Rhonda Pendleton, decided to pick up some pizza. On their way
`back to Pendleton’s home in Fort Pierce, Florida, Kearse drove the
`wrong way down a one-way street. Officer Parrish saw Kearse
`driving the wrong way and pulled him over for a traffic stop.
`Kearse couldn’t give Officer Parrish a valid driver’s license because
`he didn’t have one and he lied about his name and date of birth.
`Officer Parrish told Kearse that he would write Kearse three tickets
`and let him go if Kearse would tell him his real name.
`Kearse kept lying about his name, so Officer Parrish told
`Kearse to get out of the car and put his hands on top of it. When
`Officer Parrish went to handcuff Kearse, Kearse told Officer Parrish
`not to touch him and called Officer Parrish a “lying ass pig” and
`said “I’m not going no mother fuckin’ where with you.” At some
`point, Officer Parrish accidentally hit Kearse below the eye with his
`handcuffs while trying to control Kearse. A physical struggle fol-
`lowed during which Kearse snatched Officer Parrish’s service pis-
`tol.
`
`Kearse shot Officer Parrish, causing Officer Parrish to fall
`back. Kearse briefly paused while Officer Parrish pleaded for his
`life—“Come on, man, don’t do it, don’t do it”—before firing off
`another round of bullets. He fired again and again and again and
`again and again and again and again and again and again and again
`
`
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`and again—a total of thirteen bullets into Officer Parrish, killing
`him.
`
`Kearse kept Officer Parrish’s pistol, drove Pendleton home,
`and flattened his car’s tire “[t]o keep the police off [him].” He told
`Pendleton that he killed Officer Parrish because he was on proba-
`tion, he wasn’t sure if there was a warrant out for his arrest, and he
`didn’t want to go back to prison so soon after his release the month
`before. Kearse was arrested later that night and confessed that he
`shot Officer Parrish.
`
`The Trial
`
`The State of Florida charged Kearse with first-degree mur-
`der and robbery with a firearm. Robert Udell, a defense attorney
`experienced with capital cases, was appointed to defend Kearse.
`
`After a week-long trial in October 1991, the jury convicted
`Kearse on both counts. As required by Florida’s capital-sentencing
`statute, the state trial court then held a separate sentencing hearing
`in front of the jury. The jury recommended that Kearse be sen-
`tenced to death, and the state trial court sentenced Kearse to death
`consistent with the jury’s recommendation. The Florida Supreme
`Court affirmed Kearse’s convictions but remanded for resentenc-
`ing because of “errors relate[d] to the penalty phase instructions
`and the improper doubling of aggravating circumstances.” Kearse
`v. State, 662 So. 2d 677, 685, 686 (Fla. 1995).
`
`
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`Resentencing
`Resentencing was set for Monday, December 9, 1996. Thir-
`teen days before the resentencing hearing, the state moved to have
`its mental health expert, Dr. Daniel Martell, examine Kearse. In
`response, Mr. Udell moved to continue the resentencing or to
`strike Dr. Martell as a witness. Mr. Udell argued that he only heard
`about the state’s intent to use Dr. Martell as an expert witness after
`the state responded to a discovery demand on November 30. And
`he said he could not attend Dr. Martell’s examination on the state’s
`proposed dates because of scheduling conflicts. Mr. Udell also
`moved to: (1) limit the use of any information gathered from the
`examination; (2) declare unconstitutional Florida Rule of Criminal
`Procedure 3.202—the newly established rule that permitted the
`state to examine Kearse;1 (3) prohibit application of rule 3.202; and
`(4) limit the scope of the examination.
`On December 3, 1996, the state trial court held a hearing on
`Mr. Udell’s motions. The state trial court granted the state’s mo-
`tion to examine Kearse and set the examination for December 5,
`
`1 Rule 3.202 first became effective on January 1, 1996. See Amends. to Fla.
`Rule of Crim. Proc. 3.220—Discovery (3.202—Expert Testimony of Mental
`Mitigation During Penalty Phase of Cap. Trial), 674 So. 2d 83, 83–84 (Fla.
`1995). It was later amended on May 2, 1996. Id. at 85. At the time of Kearse’s
`resentencing, rule 3.202 provided that, “in those capital cases in which the
`state gives notice of its intent to seek the death penalty within 45 days from
`the date of arraignment . . . the court shall order that, within 48 hours after the
`defendant is convicted of capital murder, the defendant be examined by a men-
`tal health expert chosen by the state.” Id.
`
`
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`the Thursday before the December 9 resentencing. The state trial
`court denied Mr. Udell’s motion to continue resentencing or to
`strike Dr. Martell as a witness, and deferred ruling on his other mo-
`tions.
`At the start of resentencing on December 9, Mr. Udell re-
`newed his motion to continue or to strike Dr. Martell as a witness.
`Mr. Udell explained that three days earlier the state gave him “a
`copy of the raw data that Dr. Martell generated as a result of his
`mental health evaluation of [Kearse]” and that the data was “on its
`way to [Kearse’s] experts for their review.” But Mr. Udell wanted
`more time so he could research Dr. Martell’s prior publications and
`expert opinions. The state trial court denied the motion, conclud-
`ing there were no grounds for a continuance and explaining that
`Mr. Udell could depose Dr. Martell in the evening or over a week-
`end.
`
`Under Florida’s capital-sentencing statute, the jury was re-
`quired to consider whether at least one “aggravating circumstance”
`existed and, if so, whether there were sufficient “mitigating circum-
`stances” to outweigh the aggravating circumstances the jury
`found. See Fla. Stat. § 921.141(2) (1996). Mr. Udell sought to prove
`three statutory mitigating circumstances at resentencing: (1) the
`murder was committed while Kearse was under the influence of
`extreme mental or emotional disturbance; (2) Kearse’s capacity to
`appreciate the criminality of his conduct or to conform his conduct
`to the requirements of the law was substantially impaired; and
`(3) Kearse’s age at the time of the murder. See id. § 921.141(6)(b),
`
`
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`(f), (g). Mr. Udell also sought to prove forty non-statutory mitigat-
`ing circumstances, including twenty-one related to Kearse’s mental
`health.2
`Mr. Udell called three mental health experts to prove the
`statutory and non-statutory mitigating factors related to Kearse’s
`mental health.
`Kearse’s mental health experts’ testimony
`1. Pamela Baker
`Pamela Baker, a licensed mental health counselor, first met
`Kearse in 1981. Mrs. Baker worked with children who had been
`referred to the state as abused, neglected, or ungovernable. Kearse
`was referred to Mrs. Baker as an ungovernable child because he left
`home without telling anyone and was having problems with his
`behavior and attendance at school. Kearse was only eight years old
`at the time, which was unusual because most children referred to
`the state were much older. Mrs. Baker explained that Kearse was
`committed to a county program for a few months and then re-
`turned to his mother’s care.
`Mrs. Baker’s review of Kearse’s records revealed that the
`state was concerned about whether he was suffering abuse at
`
`
`2 The non-statutory mitigating factors related to Kearse’s mental health in-
`cluded “[f]etal alcohol effect including hyperactivity, attention deficit disorder,
`poor judgment and delayed learning,” “[o]rganic brain damaged,” “[l]ow I.Q.,
`impulsive, and unable to reason abstractly,” “mildly retarded and functioned
`at a third or fourth grade level,” and “severely emotionally handicapped.”
`
`
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`home. It seemed that Kearse’s mother had given up on him and
`had little interaction with him. Kearse would often hoard food at
`school events because he was neglected at home, and he didn’t
`want to leave the county program because he was eating better
`than he ate at home. When Kearse was placed into the county pro-
`gram, he explained that he ran away from home because he got
`scared when his mother drank alcohol and fought with her boy-
`friend. Kearse’s mother agreed to participate in a state parenting
`program, but her participation was only superficial.
`
`Mrs. Baker noted that Kearse was a juvenile delinquent by
`age eight. He committed several offenses over the years, primarily
`burglaries and petty thefts, but his delinquency records didn’t re-
`flect a lot of aggressive behavior; Kearse would typically fight with
`someone only if they were first aggressive to him.
`Mrs. Baker testified that her husband had taught Kearse and
`that he had no doubt that Kearse was severely emotionally handi-
`capped and “operating at a retarded level.” By the time Kearse was
`thirteen and in the seventh grade, he could spell only two words:
`“cat” and “run.” Mrs. Baker taught Kearse for two years and also
`had no doubt that he was severely emotionally handicapped. Mrs.
`Baker never thought Kearse would kill someone, although she did
`think that about other children she had encountered. She de-
`scribed Kearse as being very hyperactive but not violent.
`Mrs. Baker visited Kearse in 1991 after he was jailed for mur-
`dering Officer Parrish. During the visit, Kearse discussed his up-
`bringing. He told Mrs. Baker that he was once punished by having
`
`
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`to walk around the block naked in front of his neighbors, that he
`had been tied to a bed and beaten, and that his mother would beat
`him with extension cords and coat hangers fashioned into clubs.
`Kearse also told Mrs. Baker that he started drinking alcohol when
`he was four or five years old, started smoking marijuana at the age
`of twelve or thirteen, and started smoking cigarettes at the age of
`fourteen. Kearse reported that he had been sexually molested
`when he was twelve years old and had lost his virginity to a thirty-
`one-year-old when he was less than sixteen years old.
`
`Mrs. Baker diagnosed Kearse with “panic disorder.” Mrs.
`Baker also thought that Kearse met the criteria for “conduct disor-
`der.” Mrs. Baker reviewed Kearse’s medical records and noted that
`he had been diagnosed with “brain damage” and possibly suffered
`from fetal alcohol syndrome.
`2. Dr. Fred Petrilla
`Dr. Fred Petrilla, a licensed clinical psychologist, testified
`that he examined Kearse at the time of Kearse’s trial in 1991 and
`again in 1996 shortly before resentencing. In 1991, Dr. Petrilla
`spent twenty hours with Kearse and met with Kearse’s mother. Dr.
`Petrilla gave several tests to Kearse, including an intelligence test.
`The results of the tests suggested brain dysfunction. Although
`Kearse’s IQ was 79—“within the borderline range of intelligence,
`with mentally retarded being 60 and down”—he was not mentally
`retarded. At the time, Kearse scored at a third-grade level for read-
`ing and spelling and at a fourth-grade level for arithmetic. Dr. Pe-
`trilla explained that the tests he gave Kearse accounted for whether
`
`
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`a patient was malingering and that he did not think that Kearse was
`malingering.
`One of the tests Dr. Petrilla gave to Kearse was the Minne-
`sota Multifacing Personality Inventory (“MMPI”). Dr. Petrilla gave
`the MMPI to Kearse in 1991 and again in 1996. The results showed
`that Kearse acted without thinking and was extremely sensitive.
`One of the factors in the test—the F Scale—considered whether a
`person was trying to fake their symptoms. Kearse’s scores in 1991
`weren’t suggestive of malingering. However, Kearse’s F Scale in
`1996 was highly elevated. Although Dr. Petrilla conceded that he
`wasn’t an expert in interpreting F Scale results, he believed that
`Kearse’s elevated F Scale did not indicate malingering but was in-
`stead elevated for other reasons, including stress, brain damage,
`and emotional problems.
`According to Dr. Petrilla, Kearse suffered from one of the
`broadest arrays of problems that he had seen in anyone he exam-
`ined. Dr. Petrilla concluded that Kearse suffered from longstand-
`ing brain dysfunction and learning disabilities. Dr. Petrilla con-
`cluded that Kearse murdered Officer Parrish while Kearse “was un-
`der an extreme emotional disturbance” and that he was “still under
`an extreme emotional disturbance” at the time of resentencing.
`Dr. Petrilla also concluded that Kearse was substantially incapable
`of conforming his conduct to the requirements of the law at the
`time of the murder.
`
`
`
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`3. Dr. Jonathan Lipman
`Dr. Jonathan Lipman, a neuropharmacologist, examined
`Kearse for drug-related conditions. Dr. Lipman spoke with
`Kearse’s mother who confirmed that she abused alcohol while she
`was pregnant with Kearse. He concluded that Kearse suffered from
`“[f]etal [a]lcohol [e]ffect, a milder form of [f]etal [a]lcohol [s]yn-
`drome.” Dr. Lipman also had Kearse undergo several brain scans,
`the results of which suggested brain damage. He spoke with
`Kearse about his recollection of the night of the murder and deter-
`mined that Kearse was “confabulat[ing].” Dr. Lipman explained
`that this meant Kearse was not lying but was instead filling the gaps
`in his memory with what he believed was reasonable. He con-
`cluded that Kearse had acted impulsively on the night of the mur-
`der.
`
`Dr. Lipman testified that he often relied on the reports of
`other experts to reach a professional opinion in a case. And because
`Dr. Lipman was not a psychologist or neuropsychologist, he
`reached out to Dr. Lawrence Levine, a board-certified neuropsy-
`chologist, and Dr. Alan Friedman, a board-certified psychologist,
`to get their opinions on Dr. Martell’s test results and Kearse’s ele-
`vated F Scale. Dr. Lipman recounted to the jury what Dr. Levine
`and Dr. Friedman had reported to him.
`According to Dr. Lipman, Dr. Levine reviewed the results
`of Dr. Martell’s examination of Kearse and explained that Kearse
`scored in the 50th percentile for a nine-and-a-half-year-old child on
`one of Dr. Martell’s tests and that Kearse’s score on another of Dr.
`
`
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`Martell’s tests corroborated Dr. Petrilla’s conclusion that Kearse
`suffered from a verbal memory disorder. Kearse’s results from the
`verbal learning test also indicated, according to Dr. Levine, that he
`was not malingering. A third test that Dr. Levine reviewed showed
`low average performance and no malingering or exaggeration. Dr.
`Levine concluded that the test results showed brain dysfunction.
`Dr. Lipman discussed Dr. Levine’s findings with Dr. Petrilla, who
`confirmed that they were consistent with his findings.
`Dr. Lipman testified that Dr. Friedman was “the natural
`choice of a person” to interpret Kearse’s elevated F Scale because
`Dr. Friedman was “recognized as the expert in [the MMPI]” and
`was “unique among[] psychological researchers in that he [wa]s the
`person that actually d[id] the raw studies of malingerers of disabled
`people, and he developed the norms.” Dr. Lipman said that Dr.
`Friedman was the author of a “very famous paper” on the MMPI
`in which Dr. Friedman “provide[d] the tables of norms drawn from
`many people that he has evaluated by which to interpret F Scales.”
`Dr. Lipman told the jury what Dr. Friedman had reported to him.
`According to Dr. Lipman, Dr. Friedman reviewed Kearse’s
`MMPI results and concluded that Kearse “understood the ques-
`tions and answered honestly without any . . . symptom magnifica-
`tion whatsoever and answered consistently thereby generating a
`valid profile.” Dr. Friedman said that Kearse’s “F Scale . . . [was] in
`the valid range,” thus “indicating a cooperative nondissimulating
`test taking attitude.” Dr. Friedman concluded that “the elevation
`seen in all of . . . Kearse’s MMPI profiles reflect[ed] psychiatric
`
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`disturbance” and that it was inappropriate to look only at the
`F Scale to assess whether Kearse was malingering. Dr. Friedman
`relied in part on the “F minus K index, which is a treatment that
`you give to the F Scale to interpret it.” Dr. Friedman noted that
`Kearse’s F minus K score was “significantly below” a benchmark
`for malingering.
`The state’s mental health expert’s testimony
`The state’s only witness in rebuttal was Dr. Martell. Dr.
`Martell disagreed with Mrs. Baker’s diagnosis of panic disorder.
`Dr. Martell also thought that fetal alcohol effect—Dr. Lipman’s di-
`agnosis—was “not a mental disorder.” Dr. Martell explained that
`the features of fetal alcohol effect could occur naturally without al-
`cohol and said that “in the literature, there’s a call to get rid of this
`term [f]etal [a]lcohol [e]ffects.” Dr. Martell concluded that, in any
`event, it was “highly questionable” that Kearse suffered from fetal
`alcohol effect.
`
`Dr. Martell testified that Kearse “ha[d] some areas of weak-
`ness but that he d[id] not have brain damage.” Dr. Martell disa-
`greed with Dr. Petrilla’s finding of brain damage because Dr. Pe-
`trilla relied on a set of norms that had been criticized for not ac-
`counting for the age, sex, and educational background of the sub-
`ject. Dr. Martell determined that any impairment shown on Dr.
`Petrilla’s tests resulted from Kearse’s depression.
`Dr. Martell concluded that Kearse suffered from a conduct
`disorder as a child and didn’t perform well academically because he
`
`
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`“made a choice not to apply himself in school.” Dr. Martell also
`diagnosed Kearse with “antisocial personality disorder” and “psy-
`chopathy.” Dr. Martell explained that neither diagnosis rose to the
`level of extreme emotional mental disturbance within the meaning
`of the statutory mitigating circumstance.
`Dr. Martell also concluded that Kearse was “faking on [his]
`personality testing in an attempt to make himself look more im-
`paired than he is.” In Dr. Martell’s opinion, Kearse’s elevated
`F Scale in his MMPI results showed a “severe effort to fake the
`test.” According to Dr. Martell, the MMPI results were “totally in-
`valid,” “uninterpretable,” and “reflect[ed] an attempt on [Kearse’s]
`part to fake crazy in order to avoid responsibility.”
`Dr. Martell stated that he had reviewed the information that
`Dr. Friedman had relayed through Dr. Lipman. Dr. Martell said
`that, although Dr. Friedman had been “portrayed . . . as the world’s
`greatest expert on the MMPI,” he wasn’t. Dr. Martell explained
`that the F minus K index used by Dr. Friedman was “not consist-
`ently reliable as a method for determining whether a profile is in-
`valid or not.” Dr. Martell also faulted Dr. Friedman for not having
`personally examined Kearse. Dr. Martell concluded that Kearse
`was a pathological liar, and he rejected Dr. Lipman’s determination
`that Kearse was confabulating.
`In sum, Dr. Martell concluded that Kearse wasn’t under the
`influence of an extreme mental or emotional disturbance when he
`murdered Officer Parrish. Dr. Martell also concluded that Kearse’s
`capacity to appreciate the criminality of his conduct or to conform
`
`
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`his conduct to the requirements of the law at the time of the mur-
`der wasn’t substantially impaired. That conclusion was based on
`Dr. Martell’s assessment of Kearse’s behavior before, during, and
`after the murder. Dr. Martell explained that Kearse: (1) under-
`stood he had done something illegal by driving the wrong direction
`down a one-way street and that he was worried about violating his
`probation; (2) showed a capacity to conform his conduct to the re-
`quirements of the law because he decided to lie to Officer Parrish
`about his name and date of birth to avoid responsibility; (3) made
`a decision with “[e]ach squeeze of th[e] trigger” as he fired multiple
`series of rounds at Officer Parrish; and (4) made efforts to conceal
`his involvement by taking Officer Parrish’s pistol with him, disa-
`bling the car when he got to Pendleton’s home, and hiding the pis-
`tol.
`
`On cross-examination, Mr. Udell highlighted that Dr. Mar-
`tell hadn’t spoken with Kearse’s mother or several of the defense
`witnesses. And Dr. Martell conceded that reasonable experts could
`form different opinions about the same set of facts. Dr. Martell also
`admitted that if he were to have a pregnant wife, he wouldn’t want
`her to drink alcohol like Kearse’s mother had because it could have
`significant detrimental effects on their child and lead to brain dys-
`function. Dr. Martell confirmed that he hadn’t studied the effects
`of alcohol on animals and that he didn’t practice neuropharmacol-
`ogy.
`
`Dr. Martell admitted that he relied on reports of Kearse’s
`brain scans but hadn’t reviewed the scans. Dr. Martell also
`
`
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`acknowledged that his opinion about Kearse’s lack of effort at
`school conflicted with the defense witnesses who said otherwise.
`And he admitted that the psychiatric manual he relied on—the Di-
`agnostic and Statistical Manual of Mental Disorders—previously
`considered homosexuality to be a mental disorder.
`Mr. Udell challenged Dr. Martell’s conclusion that Kearse
`was capable of conforming his conduct to the requirements of the
`law based on Kearse’s actions at the time of the murder. Mr. Udell
`asked Dr. Martell to explain when he thought that Kearse formed
`the intent to kill Officer Parrish, and Dr. Martell conceded that he
`“hadn’t thought about it.” Mr. Udell also asked Dr. Martell why
`Kearse didn’t have a gun with him if he was determined to avoid
`arrest. Dr. Martell responded that Kearse likely didn’t want to add
`a felon-in-possession charge to his record. Mr. Udell then high-
`lighted a conflict in Dr. Martell’s testimony: “He was willing to kill
`in order not to go back to jail but he wasn’t willing to possess a
`firearm charge, he wasn’t concerned about that but he was so con-
`cerned about not going back to jail that he’d kill an officer?” Mr.
`Udell similarly contrasted Dr. Martell’s conclusion that Kearse was
`trying to conceal his involvement in the murder with the fact that
`Kearse confessed to killing Officer Parrish as soon as he met with
`police.
`
`Kearse’s renewed death sentence
`The jury unanimously recommended the death penalty and
`the state trial court followed that recommendation, finding that the
`aggravating circumstances of Kearse’s crime outweighed the
`
`
`
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`Opinion of the Court
`
`17
`
`mitigating ones. The state trial court found two statutory aggra-
`vating circumstances. First, the state trial court found that the mur-
`der was committed while Kearse was engaged in the commission
`of—or during flight after committing or attempting to commit—
`robbery. And second, the state trial court found three other statu-
`tory aggravating circumstances which it merged into one because
`they involved a single aspect of the offense: (1) the murder was
`committed for the purpose of avoiding or preventing a lawful ar-
`rest or effecting an escape from custody; (2) the murder was com-
`mitted to disrupt or hinder the lawful exercise of any governmental
`function or the enforcement of laws; and (3) the victim was a law
`enforcement officer engaged in the performance of his official du-
`ties.
`
`The state trial court found only one statutory mitigating cir-
`cumstance—Kearse’s age at the time of the murder. The state trial
`court
`found
`three non-statutory mitigating circumstances:
`(1) Kearse cooperated with law enforcement; (2) his behavior at
`trial was acceptable; and (3) he had a difficult childhood that re-
`sulted in psychological and emotional problems. The state trial
`court found that the mitigating circumstances were “not individu-
`ally or in toto substantial or sufficient to outweigh the aggravating
`circumstances.”
`Kearse again appealed his death sentence to the Florida Su-
`preme Court, but this time the court affirmed. Kearse v. State, 770
`So. 2d 1119, 1135 (Fla. 2000).
`
`
`
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`18
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`Opinion of the Court
`
`15-15228
`
`State Postconviction Relief
`After the Florida Supreme Court affirmed Kearse’s renewed
`death sentence on direct appeal, Kearse moved for postconviction
`relief in state court. Kearse claimed that he received ineffective as-
`sistance of counsel at resentencing because Mr. Udell failed to in-
`vestigate and prepare for Dr. Martell’s testimony. Kearse also
`claimed that he received ineffective assistance of counsel at resen-
`tencing because Mr. Udell failed to present evidence of “Officer
`Parrish’s prior misconduct and difficulties in dealing with the pub-
`lic.” Specifically, Kearse faulted Mr. Udell for calling none of the
`“several civilians” who had lodged complaints against Officer Par-
`rish to testify at resentencing and for failing “to request Officer Par-
`rish’s complete personnel file from [the] Fort Pierce Police Depart-
`ment.”
`Evidence relating to Kearse’s ineffective assistance of counsel
`claim based on Mr. Udell’s failure to investigate and prepare for
`Dr. Martell’s testimony
`In April and May 2005, the state postconviction court held a
`five-day evidentiary hearing on both claims. As to his ineffective
`assistance of counsel claim based on Mr. Udell’s failure to investi-
`gate and prepare for Dr. Martell’s testimony, Kearse presented tes-
`timony from five mental health expert witnesses (Dr. Friedman,
`Dr. Lipman, Dr. Barry Crown, Dr. Richard Dudley, and Dr.
`Thomas Hyde), Mr. Udell, and Robert Norgard, an expert on the
`community standards for defense attorneys. The state called one
`witness, Dr. Martell.
`
`
`
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`Opinion of the Court
`
`19
`
`1. Dr. Friedman
`Dr. Friedman testified that he became involved in Kearse’s
`case when he was contacted by Dr. Lipman in 1996. He testified
`that Dr. Lipman asked him to look at Kearse’s MMPI data. He did
`so and determined that Kearse’s MMPI results produced a “valid
`profile” because his F minus K index fell within a range that sug-
`gested “that the test [was] valid, that he wasn’t faking, that it[ was]
`open to interpretation.” Dr. Friedman explained that Kearse’s
`“F(P) score” also indicated that “he was not exaggerating.” Alt-
`hough Kearse’s F Scale was elevated, which could suggest that
`Kearse was faking, he testified that Kearse’s F Scale may have been
`high because Kearse had “serious maladjustment or psychiatric
`problems.” He disagreed with Dr. Martell’s finding that Kearse’s
`MMPI results were “[t]otally invalid.”
`
`On cross-examination, Dr. Friedman admitted that the pro-
`file generated by Kearse’s MMPI results was at least in part con-
`sistent with Dr. Martell’s findings. He also conceded that Dr. Mar-
`tell “had an advantage in being able to interview [Kearse].” And he
`agreed that whether an F Scale showed malingering was subject to
`interpretation. Dr. Friedman confirmed that Dr. Lipman’s recita-
`tion of his opinion at resentencing was largely accurate.
`Dr. Friedman would have testified at Kearse’s resentencing
`if he had been asked to.
`
`
`
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`20
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`Opinion of the Court
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`15-15228
`
`2. Dr. Lipman
`Dr. Lipman testified that Mr. Udell hired him to testify at
`Kearse’s resentencing. He was qualified to testify as an expert
`about MMPI results, although he “would normally request another
`consultation . . . for [his] own edification.” He consulted Dr. Pe-
`trilla about Kearse’s MMPI results, and Dr. Petrilla told Dr. Lipman
`that he thought Kearse’s MMPI results were invalid. Dr. Lipman
`knew from his own research that Dr. Petrilla “was probably not
`correct about [that],” so he sought an “outside opinion” from Dr.
`Friedman. Mr. Udell never had any interaction with Dr. Friedman,
`and Dr. Lipman paid for Dr. Friedman’s services.
`At the time of resentencing, Dr. Lipman had not been pro-
`vided Dr. Martell’s deposition, report, or videotaped examination
`of Kearse. He didn’t agree with Dr. Martell’s findings. It was clear
`to him that Kearse had a “developmental disorder” and suffered
`from fetal alcohol effect.
`
`On cross-examination, Dr. Lipman agreed that he had “suf-
`ficient information” to support his opinion that Kearse suffered
`from fetal alcohol effect. He also agreed that Mr. Udell “over-
`whelmed [him] with paperwork” and materials to rely on. No new
`information had been given to Dr. Lipman since the resentencing
`that would’ve changed his opinion that Kearse suffered from fetal
`alcohol effect.
`
`
`
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`Opinion of the Court
`
`21
`
`3. Dr. Crown
`Dr. Crown, a licensed psychologist, testified that he exam-
`ined Kearse on December 9, 2002, and gave him neuropsychologi-
`cal tests. One of the tests showed that Kearse “was putting forth
`good effort, good motivation, no indication of malingering or ex-
`aggerating or faking.” Dr. Crown concluded that Kearse was “im-
`paired” and had “neuropsychological deficits,” and he confirmed
`that his findings were consistent with Dr. Petrilla’s. Dr. Crown’s
`findings were also consistent with reports of doctors who had ex-
`amined Kearse after resentencing—specificall
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