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Kenneth Dessaure v. Secretary of Department of Corrections

December 13, 2011

KENNETH DESSAURE, PETITIONER,
v.
SECRETARY OF DEPARTMENT OF CORRECTIONS, RESPONDENT.



ORDER

Petitioner, a State of Florida inmate under sentence of death, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 and challenges the validity of his state conviction for first-degree murder. Respondent argues that Petitioner neither states a federal constitutional claim nor meets the threshold requirements of 28 U.S.C. § 2254(d) and (e).

PROCEDURAL BACKGROUND

Petitioner was charged by an indictment with first-degree murder. A jury convicted Petitioner and the state trial judge ultimately imposed a death sentence. Petitioner appealed. (Dkt. #13, Ex. A41). The Florida Supreme Court affirmed Petitioner's conviction and sentence. (Dkt. #13, Ex. A44). See also Dessaure v. State, 891 So.2d 455');">891 So. 2d 455 (Fla. 2004). Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

On February 28, 2006, Petitioner filed a state motion to vacate judgment of conviction and death sentence pursuant to Fla. R. Crim. P. 3.851. (Dkt. #13, Ex. B1, pp. 1-69). The state post-conviction court denied the motion after an evidentiary hearing. (Dkt. #13, Ex. B3, pp. 1-30). Petitioner appealed the denial of his Rule 3.851 motion and simultaneously filed a state petition for a writ of habeas corpus in the Florida Supreme Court. (Dkt. #13, Exs. B10, B13). The Florida Supreme Court in a consolidated opinion both affirmed the denial of Petitioner's Rule 3.851 motion and denied his state habeas petition. (Dkt. #13, Ex. B16). See also Dessaure v. State, 55 So. 2d 478 (Fla. 2010). Petitioner did not seek certiorari review in the United States Supreme Court.

Petitioner filed the instant Section 2254 petition on March 9, 2011. Respondent does not challenge the petition's timeliness. Petitioner presents four grounds for relief alleging ineffective assistance of both trial and appellate counsel. Petitioner has exhausted his state court remedies rendering each ground subject to review on the merits. Upon review, the petition is DENIED.

FACTS*fn1

Dessaure was charged by indictment with the February 9, 1999, first-degree murder of Cindy Riedweg. Dessaure's trial began in the Circuit Court in and for Pinellas County on August 28, 2001. On September 5, 2001, the jury found Dessaure guilty of first-degree murder. FN1. Dessaure waived his right to a penalty phase jury. On October 26, 2001, the court sentenced Dessaure to death. The evidence presented at trial established the following:

FN1. The jury, utilizing a general verdict form, found Dessaure guilty of first-degree murder as charged. It did not specify whether he was found guilty of premeditated first-degree murder, felony first-degree murder, or both. However, the jury was instructed as to both premeditated murder and felony murder.

Guilt Phase

Dessaure lived with Amy Cockrell and Tim Connole in apartment 1307 of the Villas at Countryside in Oldsmar, Florida. Riedweg moved into apartment 1308 next door to them a couple of weeks before the murder. Dessaure did not have a social relationship with Riedweg and had not been inside her apartment prior to the day of the murder.

On February 9, 1999, Cockrell left her apartment at 8 a.m. Dessaure, Connole, and Connole's friend, Ivan Hup, were there when she left. Connole and Hup went out for lunch around noon, leaving Dessaure alone in the apartment.

One of Riedweg's neighbors, John Hayes, left his apartment to go to work around 3:30 p.m. and encountered Dessaure in the parking lot. Dessaure told him that he thought there was someone dead or dying in Riedweg's apartment. When Hayes asked him how he knew that, Dessaure said he had gone to Riedweg's apartment for ice and looked in. Hayes testified that Dessaure seemed nervous and his left hand was balled up. Hayes did not want to become involved and told Dessaure to call 911. . . . .

Paramedic Greg Newland, Captain Robert Carman, and EMT Jill Manines arrived at the scene at 3:39 p.m. Dessaure met them and led them to Riedweg's apartment. Newland testified that the back of Dessaure's shirt appeared to be wet. Dessaure told them that he went to Riedweg's apartment to borrow some ice and found her on the floor. Newland entered the living room of the apartment and found Riedweg lying on the floor in a pool of blood. Riedweg was lying face down with her arms tucked under her body. There were stab wounds to her upper back and shoulders. Riedweg had no pulse and was not breathing, but her body was still warm. Newland rolled Riedweg over and discovered that her throat had been slashed. He pronounced her dead at 3:41 p.m. . . .

In March, the lease ran out on Cockrell and Connole's apartment and they moved. They packed a knife set and later noticed that one of the knives from the set was missing. They had bought the knife set prior to February 9, 1999, and it was in their apartment on the day of the murder.

Detective Thomas Klein and his partner, Detective Tim Pupke, arrived at Riedweg's apartment at 5:14 p.m. They expanded the crime scene to include Dessaure's apartment. Klein entered Riedweg's apartment and saw blood stains on the carpet in the living room. Once he reached the living room chair, he could see Riedweg's body lying in the hallway. Klein found a scuff mark on the kitchen floor and a pool of water near the refrigerator and sink.

Dessaure took Klein and Craig Giovo of the Pinellas County Sheriff's Office Forensic Science Unit into his apartment to show them the knife with which he said he cut his hand while he was washing dishes. Giovo saw blood stains on the threshold and at the bottom of the door of Dessaure's apartment and later took samples. Dessaure showed them a knife lying on a dry sponge next to the kitchen sink. The knife had blood smeared on it. They opened the freezer door at 7:15 p.m. and saw blood stains on the bottom of the freezer and on the ice tray. There was frost on the ice tray, and the ice cubes were frozen solid. Giovo collected the ice tray and dumped the ice cubes in the sink. Dessaure told the detectives that the ice cubes were not quite frozen earlier in the afternoon when he wanted ice, and that was the reason he went to Riedweg's apartment. Klein asked Dessaure to accompany him to the Sheriff's Office to make a statement. Dessaure's taped statement was played for the jury.

In his statement to police, Dessaure said that after his roommates left, he turned on the radio and started to clean at around 2 or 2:30 p.m. He took the garbage out to the dumpster at around 2:45 p.m. and saw Riedweg sunbathing in a bikini with her eyes closed. When he returned from the dumpster, he did not notice whether Riedweg was still outside because he looked down while he walked. Dessaure put detergent and bleach in water in the sink and began washing a knife. The knife slipped and cut the palm of his hand. He put the knife down and ran water on the cut.

He finished drinking a cup of water and wanted another cup of cold water. The ice cube tray was empty, so he filled it and put it and a cup in the freezer. He went to Nathan Philips' apartment to get some ice, but Philips was not at home. Dessaure went back into his apartment to get his cup; then, he went next door to Riedweg's apartment. He knocked on the door and yelled for "Cindy." He noticed that her stuff was still outside. Her door was unlocked, so he opened it, called for her, and after receiving no answer entered the apartment. He did not see anyone, so he walked to the edge of the kitchen. He saw Riedweg lying on the floor with blood on her and left the apartment without touching anything. Dessaure saw Hayes in the parking lot, told him he thought a lady was dead, and asked him for help. Hayes told him to call the police and walked away.

Dessaure picked up Riedweg's phone, which was outside by her lawn chair, and called 911. While he was on the phone with the sheriff's department operator, he went back inside his apartment to look for a cigarette but could not find one, so he picked up the knife he had cut himself with earlier and began to clean it again. While still on the phone with the sheriff's department, he cut himself again in the same exact spot that he cut himself earlier. Dessaure said that every time he cuts himself it is always in that same spot. .

Dr. Laura Hair, an assistant medical examiner, performed an autopsy on Riedweg's body on February 10, 1999. Hair found that Riedweg had suffered a total of fifty-three wounds, including three bruises, fifteen scrapes and pick marks, sixteen superficial cuts, fifteen deeper cuts, and four stab wounds. There were five defensive wounds to the hands, three wounds that penetrated the trachea, three that damaged and collapsed the lungs, two that cut the exterior jugular vein, one that cut the liver, one that struck a vertebra, and one that cut a spinal nerve. Hair testified that Riedweg could have remained conscious for four to six minutes after her lungs collapsed, and she could have survived from four to ten minutes. Electrical activity could have continued for a few minutes more, perhaps ten to fifteen minutes. Multiple stab wounds of the torso and neck were the cause of death. Riedweg had not started her menstrual cycle and the rape kit came back negative. . . . .

John Wierzbowski, a former Florida Department of Law Enforcement (FDLE) crime lab analyst, examined Dessaure's silver-gray T-shirt, a pair of black denim shorts, and a pair of flip-flop sandals to conduct a blood stain pattern analysis. He found a transferred blood stain inside the right front pocket of the shorts, but he could not determine what object made the stain; it could have been any object covered with blood. There were no stains of value for analysis on the sandals or shirt.

Tina Delaroche, an FDLE forensic serologist, examined Dessaure's black shorts and found six blood stains for analysis. Several of the stains matched Riedweg's DNA profile. Other stains may have come from Riedweg, but testing was not conclusive. She examined Dessaure's shirt and found a faint blood stain on the front and a stronger blood stain on the back. Her tests showed that the DNA profile from the stronger stain was consistent with Dessaure. Blood stains on the knife from Dessaure's kitchen were also consistent with Dessaure. She also examined a towel found in Riedweg's bathroom and a piece of fabric from Riedweg's bedroom comforter. White stains on the towel and comforter tested positive for semen. The DNA profile of the semen was consistent with Dessaure. Swabs from Dessaure's apartment tested positive for blood, but none of them were consistent with Riedweg.

None of the tested blood samples from Riedweg's apartment were consistent with Dessaure.

Valdez Hardy, a former prison inmate who was in the same cell pod in the Pinellas County Jail as Dessaure, gave a sworn statement on November 4, 1999. Hardy testified that Dessaure told him he was concerned about a washrag that might have his semen on it. Dessaure said he came home one morning and saw Riedweg sunbathing in a lawn chair. He went upstairs, then came back down to take out the trash. He winked at her when he walked by and went back upstairs. When he came back down, she was gone. She had left her phone and a cup by her chair. He went to her door, found that it was open, and went inside. She saw him and "started tripping." Hardy thought that meant that she was screaming or getting nervous. Dessaure said the washrag was "the only thing that can really prove that." They already knew he was there because he called 911 and when he was leaving the apartment a guy saw him. He told the man that a girl was in there dead. The man told him to call the police. Dessaure said he went outside, picked up her phone, and called 911. Hardy asked if there was a lot of blood, and Dessaure answered, "yeah." A few days later he said that Riedweg was naked on the floor. Hardy said Dessaure told him the paramedics came first. He was outside smoking a cigarette, and he was nervous. The detectives questioned him and asked how he got the cut on his arm. He said he cut himself on a knife. They took him to his house, and he showed them the knife. Dessaure said that when he went to the police station, he asked the police why he would have called 911 if he had killed her. They told him he was facing the death penalty. When he got up to leave, one of the detectives grabbed him, slammed him against the wall, and arrested him. Dessaure said they took his roommate's shoes because he had changed shoes. He had been wearing flip-flops. He said something about a foot or a scuff mark in the kitchen. According to Hardy, Dessaure said that "can't nobody say he killed her. Don't nobody know what happened but him and her."

On cross-examination, Hardy denied that his conversation with Dessaure occurred on October 1, 1999, after a corrections officer left a newspaper with an article about Dessaure's case in the cell pod. He denied that he read the article, which stated that semen matching Dessaure's DNA profile was found on a towel in Riedweg's bathroom. The State had Hardy read the article in court and pointed out that there was nothing in it about Dessaure taking out the trash, scuff marks on the kitchen floor, leaving Riedweg naked on the floor, her having an immaculate house, a phone by her lawn chair, his roommate's shoes, paramedics arriving first, flip-flops, the detectives slamming him to the floor, seeing a guy as he was leaving, telling the guy she was dead, the guy telling him to call the police, and that he cut himself. Hardy also denied seeing or reading any police reports or depositions in Dessaure's case.

Shavar Sampson, another fellow inmate of Dessaure's, also testified that Dessaure told him about his case. According to Sampson, Dessaure saw Riedweg outside sunbathing. He wanted to talk to her, but she did not want to have a conversation with him. The next day Dessaure went inside her apartment while she was outside sunbathing because he wanted to surprise her. When she came inside, he tried to talk to her, but she did not want to talk. She punched him. He punched her back and knocked her unconscious. He took off her two-piece bathing suit and began to have sex with her. She regained consciousness and began fighting to get him off her. Dessaure had a knife and stabbed her many times. He removed his clothing and put on something he brought from home. He called 911 to summon an ambulance. Dessaure said his sperm went inside her while they were having sex. Her period started, blood got on his underwear, and he had to change underwear. . . .

Penalty Phase

Against the advice of his attorneys, Dessaure waived his right to a penalty phase jury. The court questioned Dessaure to determine whether he understood that he had the right to have defense counsel present mitigating circumstances to the jury and to have the jury make a recommendation to the court. Dessaure did not want defense counsel to present mitigating evidence to a jury. He testified that he was acting against his attorneys' advice and that no one forced or advised him to make this choice. He understood that his decision could not be revoked. . . . .

Defense counsel proffered, by oral summary, the mitigating evidence he would have presented if Dessaure had not waived it, including the testimony of Dessaure's delinquency case manager and counselor, his mother, half-brother, older brother, half-sister, "surrogate mother," grandmother, Mary Parent, Amy Cockrell, and Dr. Maher, a psychiatrist. Dessaure waived the testimony of each proposed witness. Dessaure also waived the presentation of any legal argument by his counsel against the aggravating circumstances. Defense counsel asserted that Dr. Maher found Dessaure competent to decide to waive mitigation and asked the court to consider Dessaure's demeanor throughout the proceedings as a mitigating circumstance. The prosecutor proffered rebuttal evidence concerning the mitigating circumstances. The court granted the prosecutor's request to order a presentence investigation. At the Spencer hearing, the defense presented testimony from Dessaure's fiancee, Mary Parent, and Louise Randall, Dessaure's grandmother. [FN3].

FN3. Spencer v. State, 615 So.2d 688 (Fla.1993).

The trial court found four aggravators: (1) crime committed while previously convicted of a felony (conspiracy to commit armed robbery) and under sentence of imprisonment (community control); (2) prior conviction of a felony involving the use or threat of violence (resisting arrest with violence); (3) heinous, atrocious, and cruel (HAC); and (4) crime committed during the course of a burglary. The court found no statutory mitigating circumstances and five non-statutory mitigating circumstances. FN4.

FN4. The non-statutory mitigators are: (1) Dessaure was twenty-one years old (some weight); (2) Dessaure has the capacity and desire to be a loving parent (little weight); (3) Dessaure's family life was dysfunctional while he was growing up, his parents abandoned him to be raised by his grandmother, and his older brother died in a traffic accident (some weight); (4) Dessaure has the capacity to form personal relationships (little weight); and (5) Dessaure was well behaved in court (little weight).

Dessaure v. State, 891 So.2d 455');">891 So. 2d 455, 457-64 (Fla. 2004).

MERITS

Standard of Review The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of state court adjudications, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(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.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. at 694. See Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Federal courts must afford due deference to a state court's decision. "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, ____ U.S. ____, 130 S. Court. 1855, 1866 (2010).

Petitioner bears the burden of overcoming a state court factual determination by clear and convincing evidence. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact, but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Petitioner's post-conviction claims warrants deference in this action.

Standard of Review for Ineffective Assistance of Counsel Claims

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S. Court. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, 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. Strickland, 466 U.S. at 687, 104 S. Court. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("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."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.

Petitioner must demonstrate that counsel's error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.

Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Petitioner cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial . . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable . . . . [T]he issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).

I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL Ground One

Petitioner contends that his trial counsel rendered ineffective assistance by allowing Petitioner to waive the penalty phase in front of the jury without first conducting a competency evaluation. Counsel presented to the trial court during the penalty phase a Waiver of Right to Presentation of Mitigating Evidence Before the Jury*fn2 and a Waiver of Argument for Life Sentence.*fn3 (Dkt. #13, Ex. A24, pp. 4310, 4313). Petitioner argues that these two waivers constitute a "complete abandonment" by counsel and that counsel failed to request a competency evaluation by a mental health expert to determine whether Petitioner was competent to waive mitigation and join the State in seeking a death sentence.

The state post-conviction court rejected this ground*fn4 for relief in Petitioner's Rule 3.851 motion after an evidentiary hearing:

Defendant claims he was denied effective assistance of counsel when he was allowed to waive a penalty-phase jury and to forfeit his right to contest a death sentence. Defendant presents three arguments to support his claim. First, he asserts that if waiving the penalty phase jury was considered by Defendant before trial, counsel should have had a mental evaluation of Defendant during the pretrial stage of the case. Second, he claims that if waiving a penalty phase jury was "the strategy all along by a competent defendant voluntarily relinquishing his right guided by willing counsel," then counsel was ineffective in seeking a death-qualified jury who allegedly would be more likely to convict. Third, if waiving a penalty phase jury was a decision made only after the return of the guilty verdict, then Defendant should have been evaluated for competency before being allowed to waive the jury. Defendant claims that counsel was ineffective for failing to have a "suicidal defendant" examined for competency.

First, a pretrial mental evaluation of Defendant was conducted by Dr. Michael S. Maher, a psychiatrist, in February 2001 and in March 2001. At the [R]ule 3.851 evidentiary hearing, Dr. Maher indicated that the February meeting was to evaluate Defendant's general condition, his competency, and any issues relevant to sentencing. In a memorandum to his file,*fn5 Dr. Maher noted that there did not appear to be "strong support for mental health mitigation" and noted that there were some limited references to suicidal episodes in the past. After his second meeting with Defendant, Dr. Maher made a diagnosis of "post-traumatic stress disorder based on childhood experiences of a chronic nature."

Assistant Public Defender Barry Cobb,*fn6 who initially represented Defendant, prepared a memorandum to his file dated March 27, 2001.*fn7 In the memorandum, Attorney Cobb discussed Defendant's mental status and Dr. Maher's diagnosis. Attorney Cobb testified at the [R]ule 3.851 evidentiary hearing that during the two-year period in which he was representing Defendant, he arranged for him to be examined to determine his competency. He did not recall anything about the results of the examination that would have led him to believe Defendant was not competent to stand trial and assist counsel.

Attorney Watts, who represented Defendant during the penalty phase of the trial, stated that he believed Defendant was competent to make the waivers of the penalty phase jury and the waiver of the presentation of mitigating evidence. He consulted with Dr. Maher about Defendant's waivers and the doctor was in agreement. Attorney Watts never had a concern about Defendant's competency.

Once a defendant is determined to be competent to stand trial, a presumption of competence attaches to the defendant in later proceedings. Boyd v. State, 910 So. 2d 167, 188-89 (Fla. 2005). On June 21, 2001, the Court granted Defendant's motion to appoint a psychologist/psychiatrist and appointed an expert for purposes of examining Defendant's competency at the time of the offense, competency at the time of trial, and "for any other matters which will be an aid for trial and sentencing."*fn8 The record clearly indicates that Defendant was evaluated for competency before trial; therefore, counsel can not be deemed ineffective in this regard.

Second, waiving a penalty phase jury was not "the strategy all along by a competent defendant voluntarily relinquishing his right guided by willing counsel." The Office of the Public Defender was appointed to represent Defendant on September 23, 1999. Attorney Cobb testified at the [R]ule 3.851 evidentiary hearing that during the time he represented Defendant, [Petitioner] would vacillate between wanting to participate in the preparation for the penalty phase of the trial and not wanting to participate. Attorney Watts was appointed to represent Defendant on April 19, 2001, after the Office of the Public Defender was permitted to withdraw. Attorney Watts testified that from the first time he met Defendant he expressed that he did not want a penalty phase "in any way, shape or form." However, Attorney Watts stated that in preparation for the trial commencing on August 21, 2001, he spoke with Defendant about his life and possible mitigating circumstances. These conversations were in preparation for the penalty phase in the event Defendant changed his mind about proceeding with that phase. Attorney Watts stated, "I've never had anybody that didn't go all the way through, and [I] wanted to be fully prepared." He anticipated using Dr. Maher during the penalty phase of the trial and the doctor was prepared to testify. Although during the time he was represented by Attorney Watts Defendant always had been adamant that he did not want to have a penalty phase, Attorney Watts always maintained hope that Defendant would change his mind and allow mitigation evidence to be presented.

Trial counsel was not ineffective in seeking a death-qualified jury because[,] under Attorney Cobb[,] Defendant had vacillated concerning whether he wanted a penalty phase trial and under Attorney Watts, counsel always held out hope that Defendant would change his mind and proceed with the penalty phase.

Third, the decision to waive a penalty phase jury was not made only after the return of the guilty verdict. As discussed above, Attorney Cobb testified that Defendant vacillated about the decision whether to proceed with the penalty phase preparation. Attorney Watts testified that from the first time he met with Defendant he had indicated that he did not want a penalty phase if he was found to be guilty. Further, at trial, after the jury had returned its verdict, Attorney Schwartzberg informed the Court that Defendant had decided to waive the jury during the penalty phase of the trial. He explained, "I will indicate to the Court this is not something that just was sprung on us. I know there has been a considerable amount of thought on behalf of Mr. Dessaure in the event this happened, and despite the fact that the three of us have talked to Mr. Dessaure, this is his decision and we stand by it."

It was not necessary for a competency hearing to be conducted after Defendant entered the waiver because Defendant had been examined in March 2001 by Dr. Maher. Further, Attorney Watts testified at the September 6, 2001, penalty hearing that he had spoken with Dr. Maher and the doctor had concluded that Defendant was competent to make the decisions regarding the punishment stage of the proceedings. At the [R]ule 3.851 evidentiary hearing, Attorney Watts stated that in his opinion Defendant was capable of making the decision to enter the waiver and counsel never had a question about Defendant's competency.

Defendant was not denied effective assistance of counsel when he was allowed to waive a penalty phase jury. This claim is denied.

(Dkt. #13, Ex. B3, pp. 14-17) (court's record citations omitted).

The Florida Supreme Court affirmed on appeal the state post-conviction court's denial of this claim:

Dessaure first claims that his trial counsel was ineffective for allowing Dessaure to waive his right to a jury in the penalty phase without ordering a competency hearing. Dessaure particularly relies on language contained in the forms he signed in waiving a penalty phase jury, namely that Dessaure joined the State in seeking the death penalty. Dessaure claims that this language is "extraordinary" and proves that he should have been given a second competency hearing. We disagree.

Florida law provides that a defendant must be given a competency examination only if the court or defense counsel "has reasonable ground to believe that the defendant is not mentally competent to proceed." Fla. R. Crim. P. 3.210(b). Once a defendant has been deemed competent, the presumption of competence continues throughout all subsequent proceedings. Boyd v. State, 910 So. 2d 167, 187 (Fla. 2005) (citing Durocher v. Singletary, 623 So. 2d 482, 484 (Fla. 1993)). A subsequent competency hearing is only required "if a bona fide question as to the defendant's competency has been raised." Id. (citing Hunter v. State, 660 So. 2d 244, 248 (Fla. 1995)). If there is "no reason to suspect that a defendant is incompetent," then "it cannot be deficient performance if counsel does not request a competency examination." Nixon v. State, 932 So. 2d 1009, 1020 (Fla. 2006) ("[T]rial counsel had no reason to request a competency determination [because defendant] had been examined by a mental health expert who did not give trial counsel any reason to delve further into competency."). Here, defense counsel was not ineffective for not requesting an additional competency hearing for Dessaure. Prior to the beginning of trial, Dr. Maher evaluated Dessaure for competency and concluded that Dessaure was competent to stand trial and to make penalty phase decisions, even in light of his post-traumatic stress disorder and history of suicide attempts. In addition, three of Dessaure's defense attorneys, Messrs. Cobb, Schwartzberg,*fn9 and Watts, testified at an evidentiary hearing regarding their confidence in Dessaure's competency. Mr. Cobb testified that he could not recall anything about the results of that examination that suggested Dessaure was not competent to stand trial and assist counsel. Mr. Schwartzberg stated that he stood by Dessaure's decision to waive his right to a penalty phase jury because Dessaure gave a considerable amount of thought to the waiver and that all three talked to Dessaure about it. Mr. Watts testified that he consulted Dr. Maher about the penalty phase, and both believed Dessaure was competent to make waiver-type decisions. Mr. Watts further testified that he spent roughly thirty hours with Dessaure discussing the case, Dessaure's background, and the penalty phase, and that Dessaure consistently maintained that he did not want a penalty phase.

The record also shows that the trial judge engaged in multiple colloquies with Dessaure to confirm that his waivers were knowing and voluntary, that Dessaure understood his right to present mitigation evidence, and that his decision not to present mitigation was against his attorneys' advice. In sum, nothing in the trial proceedings raised a bona fide question about Dessaure's competency.

We also disagree that the language contained in the signed waiver was "extraordinary" or by itself draws Dessaure's competency into question. The record makes clear that Dessaure's lawyers explained to him on multiple occasions that he should reconsider his decision to waive mitigation. His attorney was prepared to present mitigation and also proffered the mitigating circumstances in court. Dessaure had many opportunities to change his mind regarding mitigation. Therefore, the waiver was nothing extraordinary, but rather a signed acknowledgment of the possible result of his actions.

Accordingly, defense counsel cannot be rendered ineffective for not requesting additional competency testing when Dessaure waived his right to present mitigation. Dessaure v. State, 55 So. 3d 478, 482-83 (Fla. 2010). The record supports the Florida Supreme Court's rejection of this ground of ineffective assistance.

A. Trial proceedings

On September 6, 2001, the day after the jury returned its guilty verdict,*fn10 Petitioner's counsel presented the trial judge with the Waiver of Right to Presentation of Mitigating Evidence Before the Jury. Counsel advised the court that Petitioner, after considerable thought, wished to present the waiver despite counsels' advice. (Dkt. #13, Ex. A37, pp. 1827-28). The trial judge inquired of Petitioner:

Court: I have had a chance to read the Waiver of Right to Presentation of Mitigating Evidence Before the Jury. It appears to have your signature on it. This is your signature?

Defendant: Yes, sir.

Court: And it does state in here that you are making this decision against the advice of your attorneys; is that correct?

Defendant: Yes, sir.

Court: And this is your decision?

Defendant: Yes, it is.

Court: Nobody has forced you to do this?

Defendant: Nobody has forced me, no.

Court: You understand, sir, that this decision is going to be irrevocable. You can't later on change your mind.

Defendant: I understand that.

Court: And the reason that I'm saying that is that, you know, on the record I'm going to be, you know, directing the clerk to call off the jury and we are going to do that today. And once they are called off, then they are totally released from any obligation or admonition that I gave them about reading anything about this case, about talking to anybody about the case, and so it would then be, you know, difficult, if not impossible, to undo that once they are told they are released. You understand that? Defendant: I understand that.

Court: Okay. And just as long as you understand that this is a decision that you are making now and you can't later say, oops, changed my mind, you can't say that. Do you understand that?

Defendant: I understand that.

Court: And even knowing that, you are standing by the decision that you have made?

Defendant: Yes, sir.

Court: Okay. That's fine. . . . .

Court: . . . . I'll, at this point, find that [Petitioner], against the advice of his attorneys, has waived his right to present mitigating evidence and testimony to a jury and to present mitigation only to the court. And I will file his waiver with the clerk at this time. (Dkt. #13, Ex. A37, pp. 1829-32).

During the penalty phase on September 11, 2001, counsel filed Petitioner's Waiver of Argument for Life Sentence. The trial judge inquired of defense counsel:

Court: All right. I'm unsure, Mr. Schwartzberg, at this point, and Mr. Watts, exactly what [Petitioner] now is waiving. I know that you had said last week, and one of the things, I guess, I read in the paper, was that you weren't going to be calling any witnesses, that you were going to put forth summaries of some kind. I guess the problem I have is are those the types of documents that I could consider in mitigation, or is it more in the line of a proffer that I couldn't consider in mitigation or don't have to consider in mitigation. That is what I'm wanting to make sure everyone is clear on.

Watts: Judge, its' more the nature of a proffer. They won't be at the height of an evidentiary level. It's to let Your Honor know what mitigation we found, to let other courts know, or anybody else who would like to know what mitigation is there, understanding that we are not presenting any evidence whatsoever.

Court: I understand. And the reason I ask this is that I just had a case that I was personally involved with on another murder one issue where the defendant after the trial phase waived the right to present any evidence and testimony and, in fact, he waived his right to even have an attorney so I let him represent himself with the PD on standby. And he said, I don't want anybody called, I don't want to put forth any argument. So I called the Public Defender in that case and had them proffer everything, who they were going to call, what they were going to say, and then after each proffer, I asked the defendant to acknowledge, yes, I understand that's what they were going to say but I don't want them to testify. And the Supreme Court said - - and then I didn't consider any of the proffer, proffered testimony in my sentencing order and the Supreme Court said that that was perfectly acceptable, that I didn't have to because it wasn't evidence, it was just a proffer. So, you know, as long as we all understand, we, meaning Mr. Dessaure, particularly, understands that you might be telling me this stuff, but it's not rising to the level of something that you have to show by clear and convincing or something less, maybe, of evidence that that mitigated circumstance exists or doesn't exist. So I can certainly take judicial notice of other things even if you present nothing that has happened in this case from the time of his arrest through this instance in the court file or not anything that happened during the trial even and put that in the form of, you know, a mitigating circumstance to go through the weighing process. In the other case I was involved with, I did that and the Supreme Court again said that that was, you know, the appropriate way to handle it. . . . Mr. Dessaure, I do need to ask you some questions. You can remain seated. Raise your right hand to be sworn.

Court: Okay. I want to go back through, Mr. Dessaure, real quick what we did last week just to, again, get it on the record again under oath that this is what you want to do.

You understand, Mr. Dessaure, that you have a right to have your attorneys present mitigating circumstances to a jury and have that jury make a recommendation to me. Do you understand you have that right?

Defendant: Yes, I do, sir.

Court: And in line with what happened last week, is it still your desire not to have your attorneys present any testimony or evidence to a jury for their recommendation? Is that still your desire?

Defendant: Yes, sir.

Court: Anybody forcing you to do this?

Defendant: No, sir.

Court: And I understand, from what I heard last week, is that you are doing this against your attorneys' advice?

Defendant: Yes, I am.

Court: Is there anybody else advising you that this is what you need to do? Defendant: No, sir.

Court: This is your decision and your decision alone, and you understand, as

I asked you about last week, that it is irrevocable and you can't come back and say, oh, I changed my mind down the road. You can't say that?

Defendant: I understand that.

Court: All right. Now, with regard to the document that you just signed that's presented to me today, you understand that by your signing this document that you are telling us that you do not want your attorneys to present any evidence or testimony to substantiate any mitigating circumstance that might exist? Is that what you are telling me? Defendant: Yes, sir.

Court: And, again, you are doing this against your attorneys' advice? Defendant; Yes, sir.

Court: They are not telling you that this is what you need to do? They are saying, no, you don't need to do this, but you are doing it anyway? Is that what you are telling me?

Defendant: Yes, sir.

Court: Anybody forcing you to do this?

Defendant: No, sir.

Court: This is your decision and your decision alone?

Defendant: Yes, sir.

Court: Okay. So by this, Mr. Watts, I'm assuming that, then, the defense will not be calling any witnesses to try to substantiate any mitigating circumstances; is that right?

Watts: Correct, Your Honor.

Court: Now, I understand that you were going to try to talk with Dr. Maher yesterday. Did that happen? [Watts]: Yes, sir.

Court: Okay. But he still hasn't prepared a report of any kind for me to look at or that you wish to submit to me?

Watts: Correct.

Court: Prior to - - Mr. Watts, prior to Mr. Dessaure making this decision, had you discussed with him what mitigating circumstances you feel might exist that might be in has favor?

Watts: With Mr. Dessaure, yes, Your Honor.

Court: And I'm wondering if we need to get a proffer of what witnesses you might be calling or could have called to establish these mitigating circumstances, and at least give Mr. Dessaure an opportunity to say, yes, I understand that's what they would testify to if they were called, but I don't want them called.

Schwartzberg: Yes, Your Honor.

Court: Is that the way you were planning on doing this, Mr. Watts?

Watts: The way we planned, Judge, was to make presentation to Your Honor orally of the mitigation and how we would prove it to the Court in summary form.

Court: Okay. I understand. Then I'll give Mr. Dessaure an opportunity to say, yes, I understand that's what it is, but I don't want any ...


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