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Mark Dean Schwab v. James v. Crosby, Jr.
Citations: 451 F.3d 1308; 2006 U.S. App. LEXIS 14693; 2006 WL 1642757Docket: 05-14253
Court: Court of Appeals for the Eleventh Circuit; June 15, 2006; Federal Appellate Court
Original Court Document: View Document
Mark Dean Schwab began his pattern of sexual assault in 1986 at the age of seventeen, targeting young boys. His first known victim, a high school sophomore named Warren, was coerced into Schwab's truck under the pretense of helping to start it. Once inside, Schwab threatened Warren with a knife, forced him to remove his shorts, and performed sexual acts on him for approximately 30 to 45 minutes. Schwab then threatened Warren's life to ensure his silence and later attempted to bribe him with a $20 bill. Schwab's second known assault occurred in the summer of 1987 against a thirteen-year-old boy named Than. Schwab deceived Than and his family by claiming he needed advice on caring for a dog he had adopted. After gaining their trust, he lured Than under the pretext of offering a painting job. Upon arrival at Schwab's home, he threatened Than with a knife, bound him, and sexually assaulted him for several hours, including anally raping him. Than sustained physical injuries and reported the assault, leading to Schwab's arrest. Schwab confessed and pled guilty to sexual battery, a charge that carries a life felony sentence under Florida law when a deadly weapon is involved. Schwab was sentenced to eight years in prison for a crime punishable by life imprisonment or up to 40 years, but he was released in March 1991 after serving less than three years, without having received treatment for his offenses. Although he was tentatively accepted into a sex offender program, it was terminated due to budget cuts before he could complete the screening. Upon release, he was required to participate in a sexual offender therapy program as a condition of his probation. Less than a month after his release, Schwab targeted an eleven-year-old boy, Junny Rios-Martinez, who had recently been featured in a local newspaper. Schwab, posing as a reporter named "Mark Dean," arranged an interview with Junny and his mother under false pretenses, claiming to represent the newspaper. During the interview, Schwab engaged Junny in casual conversation, gave him a gift certificate, and expressed interest in future interviews and photo opportunities. Schwab later sought to attend Junny’s baseball game with his mother’s consent but ultimately failed to follow through with plans for future meetings. Schwab informed Mrs. Rios-Martinez that he would no longer be involved with Florida Today as he had accepted a position with a surfing magazine, which he used to leverage information about her son Junny's interest in surfing. He sent a letter praising the Rios-Martinez family, which emotionally affected Mrs. Rios-Martinez. Schwab expressed interest in helping Junny secure sponsorship from surfing companies and requested a resume and photos of Junny, which she provided. Schwab later claimed a surfing company was interested in sponsoring Junny and promised benefits including a custom surfboard and clothing. Subsequently, Schwab visited the family multiple times, worked with Junny on surfboard designs, and produced forged sponsorship documents. He provided a list of tournaments for Junny to participate in and requested to take him to Daytona Beach to meet company representatives. Although the trip was initially planned, it was canceled at the last minute, and the Rios-Martinez family lost contact with Schwab. On April 18, 1991, Junny left for school as usual. Later that day, a man impersonating Junny's father called the school, instructing them to send Junny to a baseball field instead of home. Believing the man to be his father, Junny complied. He was seen entering a U-Haul truck with an unidentified man, after which both Junny and the truck vanished. Junny's mother arrived at the baseball field after work but found that he was not there. Mrs. Rios-Martinez reported her son Junny missing after failing to find him at home or reach a contact named Schwab. Early the next morning, Schwab learned from his mother about the police inquiry regarding Junny's disappearance. Shortly after, he called his aunt in Ohio, claiming a man named 'Donald' had threatened him at gunpoint to kidnap Junny and had forced him into sexual acts with the boy. Law enforcement visited Schwab’s mother while he was on the phone with his aunt, leading to his arrest at a pay phone later that day. During a recorded statement to the police, Schwab detailed a series of threats made by Donald, beginning with an encounter outside a bar on April 14, 1991. Schwab described being coerced into renting a U-Haul truck and checking into a motel to avoid attention. On April 18, Donald confronted Schwab, forced him to call Junny’s school impersonating his father, and then compelled Schwab to pick up Junny at a baseball field. Upon returning to the motel with Junny, Schwab recounted that Donald bound the boy, threatened him, and forced Schwab to engage in sexual acts with Junny. After being ordered to leave the motel, Schwab returned later to find both Donald and Junny gone. On April 23, while being transported back to Florida, Schwab expressed a desire to help find Junny's body and directed officers to various locations in Brevard County, eventually leading them to an undeveloped area by 10:00 p.m. Schwab walked down an unpaved road, pointed into the woods, prompting a search team to investigate. They discovered a small footlocker, partially concealed with debris, emitting a strong odor indicative of a human body. Inside, they found the decomposed body of Junny Rios-Martinez, identified through fingerprints, along with clothing and personal items recognized by his mother. An autopsy indicated Junny died from mechanical asphyxia, likely from smothering or strangulation, with signs of possible bruising. Schwab’s fingerprint was found on duct tape inside the footlocker, and a receipt for a footlocker purchased on the day of Junny's abduction was found in Schwab's car. Schwab initially claimed he was coerced by an accomplice named Donald but later provided a detailed account of his actions, including the abduction, sexual assault, and murder of Junny. The trial court rejected Schwab’s claims of another's involvement, determining he acted alone and had meticulously planned the crime to gain Junny's trust. Schwab was found to have physically overpowered Junny, sexually assaulted him, and ultimately killed him by strangulation or smothering, all while Junny was conscious and terrified. Schwab attended a group therapy session as part of his sexual offender probation just days before the abuse of eleven-year-old Junny. He and his defense team chose to waive a jury trial, resulting in his conviction on all charges after a week-long trial. During the sentencing phase, evidence regarding mitigating circumstances was presented, including assessments from mental health experts. Dr. Fred Berlin, a psychiatrist from Johns Hopkins, diagnosed Schwab with a paraphiliac disorder characterized by homosexual pedophilia and sexual sadism, attributing it to a serious psychiatric illness beyond Schwab’s control. Dr. Howard Bernstein, a psychologist who evaluated Schwab, found him rational but noted significant impairments in social judgment, particularly related to sexual concerns. Bernstein described Schwab as preoccupied with sexual urges, using "false memories" to rationalize his behavior. Schwab’s sexual fantasies involved meticulous planning and a drive towards aggression and control, culminating in a loss of impulse control when seeking victims. Bernstein indicated that Schwab rationalized his actions, minimizing potential negative consequences, ultimately leading to the act of sexual aggression. Despite this, Bernstein acknowledged that Schwab had exercised control over his impulses for several weeks while attempting to lure Junny away from his parents, demonstrating an understanding of the need to be alone with the victim to fulfill his desires. Dr. Bernstein testified that Schwab's disorder likely worsened between his crimes against Than and Junny, suggesting that punishment for the former may have taught Schwab to kill to satisfy his desires while avoiding repercussions. Bernstein noted Schwab is aware of his illness, feels guilt about his actions, and experiences internal conflict, yet he also characterized Schwab as egocentric and possibly narcissistic, driven by a desire to exploit others for pleasure. He described Schwab as "damaged goods" and a "sick child" with dangerous proclivities and expressed skepticism about his potential for rehabilitation. Dr. William R. Samek, a rebuttal witness, contested Bernstein's view, arguing that Schwab's sexual impulses could be controlled with sufficient motivation. Samek assessed Schwab's pattern of assaults as indicative of learned behavior that became increasingly calculated. He diagnosed Schwab with antisocial personality disorder rather than pedophilia, labeling him as a "rape/murderer and mentally disordered sex offender," and concluded that rehabilitation would be highly unlikely without strict controls due to the premeditated nature of Schwab's offenses. Samek further noted Schwab's targeting of seemingly "good kids from good families" reflected his own resentments rather than typical predatory behavior. After reviewing expert testimonies and additional evidence, the state trial court judge determined that aggravating circumstances outweighed mitigating ones, resulting in Schwab's death sentence, which was upheld on direct appeal and during state collateral relief proceedings. Schwab subsequently filed a petition under 28 U.S.C. § 2254, claiming his state court judgment was contrary to established federal law. This petition was denied by the district court, leading to Schwab's appeal, focusing on a claimed conflict of interest involving his trial counsel, which had been previously addressed and rejected by the Florida Supreme Court. A handwritten letter from an individual named 'Doug' was opened by the public defender's office staff, including an executive director, two attorneys, and two investigators. In the letter, Doug confessed to murdering Junny and threatened to abduct, torture, and kill one of Junny’s younger brothers due to Schwab informing the police about his involvement in the crime. Although Schwab had actually reported 'Donald' as the perpetrator, Doug seemed to conflate himself with Donald. The public defender's office reported the letter to the police two days after receiving it, and it was later found to contain Schwab’s fingerprints. On April 20, 1992, after nearly a year of representation, the public defender’s office filed a motion to withdraw due to the prosecution's plan to use the letter against Schwab, which would require the public defender employees to testify about the letter's chain of custody. The motion acknowledged the handling of the letter by six office employees. During the hearing, Schwab's chief trial counsel argued he could not effectively cross-examine his colleagues, citing personal and professional relationships, and refused to stipulate to the chain of custody despite no contesting facts. The trial court denied the motion. Five public defender staff members testified about the letter's chain of custody, but Schwab's counsel did not cross-examine them. The trial judge questioned two secretaries about their handling of the letter, but their responses did not aid the defense. On appeal, Schwab claimed ineffective assistance of counsel due to the conflict arising from the public defender's representation. However, the Florida Supreme Court ruled that Schwab failed to demonstrate substantial prejudice, noting that the chain of custody was not disputed and that the testimony related only to a collateral matter. Schwab's federal habeas petition claimed a violation of his Sixth Amendment right to effective counsel due to the state trial court's denial of his counsel’s motion to withdraw based on a conflict of interest. This conflict allegedly prevented counsel from cross-examining witnesses from the Public Defender’s Office, which Schwab argued compromised the credibility of their testimony. The district court evaluated the claim using both the Strickland and Cuyler standards for ineffective assistance of counsel. It concluded that there was no constitutional violation under either standard. The Strickland framework requires a defendant to demonstrate that counsel's performance was objectively unreasonable and that this deficiency prejudiced the defense, meaning that there is a reasonable probability the outcome would have been different but for the errors. The district court found no prejudice, asserting that the witnesses’ testimony regarding the chain of custody was not disputed and thus did not warrant cross-examination. The document underscores the importance of cross-examination as a critical aspect of the adversarial process, emphasizing that it serves to ensure the reliability of evidence. The Supreme Court has articulated that effective counsel must skillfully engage in this adversarial testing to uphold the integrity of the judicial process. The tradition of cross-examination has been a fundamental principle of the Anglo-American legal system, regarded as essential for the assessment of evidence. A defense attorney's failure to cross-examine five witnesses regarding the chain of custody for a letter is considered deficient performance. However, this deficiency is deemed irrelevant to Schwab's claim since he has not demonstrated a reasonable probability that cross-examination would have altered the trial's outcome. The district court noted that the chain of custody was essentially undisputed, with relevant facts about the letter's handling clearly laid out and uncontested. Schwab bears the burden of proving prejudice, yet he has not provided evidence to challenge the credibility of the public defender's witnesses or the chain of custody itself. Legal precedents affirm that counsel is not obligated to present false evidence or pursue futile arguments. The court concluded that Schwab failed to show that the letter’s authenticity could have been successfully questioned or that its exclusion would likely have influenced the verdict or sentence. Confidence in the trial's outcome remains intact despite claims of ineffective trial counsel. Under the Strickland standard, which assesses prejudice from counsel's errors, all evidence unaffected by these failures must be considered. Schwab argues that, even if he fails under Strickland, he should prevail based on the presumption of prejudice from Cuyler v. Sullivan, which applies in cases of concurrent multiple representation where counsel has conflicting interests affecting performance. The Supreme Court in Sullivan established that a mere possibility of conflict is insufficient to challenge a conviction. The Holloway v. Arkansas precedent further emphasizes the necessity for the trial judge to investigate the need for separate representation upon timely objection. The district court denied Schwab’s claim under Sullivan, determining that his counsel did not have an actual conflict of interest, as mere personal relationships with witnesses did not equate to conflicting interests. Schwab contests the requirement that counsel must have a legal duty to others alongside their duty to the defendant for the Sullivan rule to apply. However, the federal habeas review of a state court judgment must consider whether the state court’s decision aligns with established federal law, as defined by 28 U.S.C. 2254(d)(1). A federal court may grant a writ of habeas corpus if the state court's conclusion contradicts or unreasonably applies Supreme Court law. The standards for review are based on "clearly established federal law." Holdings from the Supreme Court, rather than dicta, are essential for determining the application of § 2254(d) at the time of the relevant state court decision. The "unreasonable application" test in § 2254(d) is significantly based on the nonretroactivity doctrine established in Teague v. Lane, which prohibits using new rules of law in federal habeas proceedings if the state conviction became final before the rule was announced. AEDPA codifies Teague by requiring federal courts to deny relief based on rules not clearly established at the time of a state conviction's finality. While federal appellate decisions may be referenced under Teague, § 2254(d)(1) focuses exclusively on Supreme Court rulings. A rule is considered new for Teague purposes if it is not dictated by precedent at the time the judgment became final, which occurs after the direct review stage. The judgment contested by Schwab became final on October 17, 1994. A holding is deemed a new rule if it breaks new ground, imposes new obligations, or was not dictated by existing precedent. Merely being within the "logical compass" of past decisions does not suffice to avoid classification as a new rule under Teague. Reasonable jurists reviewing the petitioner's claim at the time his conviction became final would not have felt compelled by existing precedent to rule in his favor, thereby barring collateral review. Prior precedent must be specific to dictate a legal outcome, and only Supreme Court decisions can fulfill this requirement under 28 U.S.C. § 2254(d)(1). A federal habeas court must accept state court decisions unless a Supreme Court ruling at the time of the conviction dictated a different legal conclusion. The legal issue presented is whether the presumed prejudice rule from *Sullivan* applies to conflicts of interest beyond concurrent multiple representation. The only relevant Supreme Court decision cited by the petitioner, *Sullivan*, predates his 1994 conviction. However, the Supreme Court in *Mickens v. Taylor* (2002) clarified that the application of *Sullivan* to other conflict-of-interest scenarios remains an open question. The Court recognized various types of conflicts but noted that *Sullivan* did not unequivocally support a broad application beyond multiple concurrent representation, emphasizing that a defendant must show that counsel actively represented conflicting interests to establish ineffective assistance of counsel. The Court highlighted that not all attorney conflicts present the same challenges in proving prejudice, reinforcing that the application of *Sullivan* is limited and remains an unresolved legal issue. The Supreme Court's decision in Sullivan does not establish that a presumed prejudice rule applies beyond multiple representation cases, leaving the applicability of the Sullivan rule in other attorney conflict situations an open question. The Second Circuit's ruling in Tueros v. Greiner suggests that the court need not heavily consider the Supreme Court's comments in Mickens, viewing them as mere dicta. Tueros emphasized that if Sullivan were applicable to other cases, the Supreme Court could not negate that applicability through dicta, as governed by 28 U.S.C. § 2254(d). However, the author disagrees with Tueros' dismissal of the Supreme Court's remarks in Mickens, arguing that the analysis provided was substantial and well-reasoned, rather than trivial. The author asserts that Supreme Court dicta holds significant persuasive value, especially when interpreting the Court's own precedents, and cites other inferior courts that share this perspective. Supreme Court dicta, even if not binding, should be treated with significant authority and deference by federal appellate courts. While not technically binding, such considered dicta often carries more weight than typical judicial dicta, serving as a strong indication of the Court's potential future holdings. Courts generally should not ignore Supreme Court dicta in the absence of clear precedent to the contrary. Recent and clearly articulated dicta are regarded almost as firmly as the Court's explicit holdings. The excerpt critiques the Tueros opinion for dismissing the Supreme Court's discussion in Mickens as mere dicta, pointing out that the Tueros court's own statements were also dicta, as they did not impact the case's central holding. The Tueros ruling ultimately held that the Sullivan standard does not apply to conflicts arising from subjective beliefs rather than objective duties, rendering any discussion of the scope of Sullivan unnecessary to its decision. The excerpt emphasizes the importance of distinguishing between necessary holdings and unnecessary commentary, noting that statements not essential to a decision are classified as dicta. The document addresses the limitations of the Sullivan rule regarding presumed prejudice in legal representation, specifically emphasizing that the rule applies only in cases of concurrent multiple representation. It critiques the Second Circuit's interpretation in Tueros and aligns with the Sixth and Ninth Circuits' conclusions in Smith and Earp, respectively, stating that the Supreme Court's statements in Mickens clarify that extending Sullivan beyond joint representation is not established law. The document reiterates that even without Mickens, there is no Supreme Court precedent supporting a presumed prejudice rule outside the context of concurrent representation, as established by the AEDPA's requirements under 2254(d)(1). It underscores that at the time of Schwab’s conviction, no such precedent existed, reinforcing the limitation of interpreting attorney conflicts beyond the defined scope of multiple representation. A determination that Sullivan’s limited presumption of prejudice is inapplicable is neither contrary to nor an unreasonable application of established federal law as defined by the Supreme Court under 28 U.S.C. 2254(d)(1). The extension of the Sullivan rule to this new context is also deemed unreasonable. Regarding other issues in the certificate of appealability, Schwab claims the State failed to prove the corpus delicti independently of his statements. The Florida Supreme Court rejected this claim, affirming that evidence such as the victim's body being found nude in a footlocker and the medical examiner's opinion of death by manual strangulation was sufficient to establish the crimes of abduction, rape, and murder, even with some decomposition noted. Schwab references Fallada v. Dugger to argue for a federal constitutional requirement for corroboration of the corpus delicti, but the court does not need to decide this issue, as the evidence suffices even without Schwab’s statements. Corroboration does not need to meet a beyond reasonable doubt standard but must provide substantial independent evidence of the crime. Additionally, Schwab’s waiver of a jury trial is deemed procedurally barred by the Florida Supreme Court, a decision upheld by the district court. Schwab's claim of ineffective assistance of counsel in relation to the jury waiver lacks substantiation. Lastly, Schwab asserts ineffective assistance of counsel during the penalty phase concerning the investigation and presentation of mitigating evidence and handling of aggravating circumstances. The Florida Supreme Court affirmed the denial of Schwab’s motion for post-conviction relief, concluding that the decision was consistent with established federal law under 28 U.S.C. § 2254(d)(1). The district court correctly denied Schwab's claim that the trial court made constitutional errors in its findings regarding mitigating circumstances during sentencing. The Florida Supreme Court had previously rejected this claim on direct appeal. Schwab failed to demonstrate that the findings were based on unreasonable determinations of fact as required by § 2254(d)(2). The court noted that while sentencing courts must consider mitigating evidence, they are not obligated to find that such evidence has mitigating weight. Relevant case law emphasizes that defendants must be allowed to present all mitigating evidence, but the sentencer is not required to accept it as mitigating or to weigh it favorably. Furthermore, even if the trial court did not assign significant weight to Schwab's nonstatutory mitigating factors, this does not violate constitutional standards; the Constitution only mandates consideration of such factors. A federal habeas court will not reassess the weight of aggravating and mitigating factors, which is the purview of state courts. Any potential error in the trial court's consideration of mitigating evidence was deemed harmless, meaning it did not significantly influence the sentencing outcome. The sentencing judge's decision was significantly influenced by the severe facts of the case, particularly the brutal nature of the crime against Junny Rios Martinez, which was characterized as heinous, atrocious, and cruel. The judge emphasized that it was difficult to envision a crime more horrific than this one, highlighting the extreme terror caused by the abduction, rape, and subsequent death by strangulation or suffocation. In addition to this aggravating factor, the court identified other aggravating circumstances, including Schwab's prior conviction for a capital felony and the commission of the murder during the course of kidnapping and sexual battery, as outlined in Florida Statutes. The court determined that the aggravating circumstances outweighed any mitigating factors, asserting that any potential errors in the judge's presentation of the mitigating evidence did not impact the sentencing decision. Consequently, the district court's denial of Schwab's federal habeas petition was affirmed.