Counsel Need Not “Shop” for Experts: Eleventh Circuit Upholds Phone-Based Expert Vetting and Cross-Examination Strategy Under AEDPA’s Double Deference

Introduction

In Clark Mackendrick v. Secretary, Florida Department of Corrections, the United States Court of Appeals for the Eleventh Circuit (per curiam, non-argument calendar) affirmed the denial of a habeas petition brought under 28 U.S.C. § 2254. The petitioner, Clark Mackendrick, is serving a life sentence following convictions for capital sexual battery and lewd or lascivious molestation in Florida. The court granted a certificate of appealability on a targeted question: whether the district court erred—given the deference owed to the state court’s decision—in rejecting Mackendrick’s claim that trial counsel rendered ineffective assistance by failing to retain and present a medical expert to refute the State’s expert’s interpretation of a “normal” physical examination of the child victim.

The case centers on a familiar ineffective-assistance-of-counsel (“IAC”) allegation in sexual-abuse prosecutions: whether defense counsel unreasonably forwent an expert to counter the State’s medical testimony. The Eleventh Circuit held that, under AEDPA’s deferential standard coupled with Strickland deference to counsel’s strategy—the so-called “double deference”—the state court reasonably concluded trial counsel acted within professional norms. The opinion articulates and applies a practical rule: defense counsel is not required to keep contacting experts until finding one willing to contradict the State’s expert, and preliminary consultation—including by telephone—may constitute a reasonable investigation that supports a strategic decision to rely on cross-examination and credibility attacks rather than put on competing expert testimony.

Summary of the Opinion

The Eleventh Circuit reviewed de novo the district court’s denial of habeas relief, while reviewing the state court’s merits adjudication with AEDPA deference. The panel reiterated that relief is available only if the state court’s decision was either contrary to or an unreasonable application of clearly established federal law, or rested on an unreasonable determination of the facts (28 U.S.C. § 2254(d)(1)-(2)). In the IAC context, that means the federal habeas court asks whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.

Applying that framework, the court affirmed. Trial counsel (Bowman) consulted two potential experts by phone before trial; both indicated they would generally agree with the State’s expert (Jn‑Baptiste) that a normal physical exam is not inconsistent with past sexual abuse because injuries often heal. Counsel therefore chose a different defense strategy—attacking the complainant’s credibility and cross-examining the State’s proof—rather than present an expert who would not materially help the defense. The court emphasized:

Counsel was not required to continue contacting experts until she found a favorable one.
Strickland does not prescribe a particular method of investigation; phone consultations can be reasonable.
Even the postconviction expert (Dr. Anderson) did not substantively contradict the State’s expert on the pivotal point: a normal exam neither proves nor disproves abuse.
Under “double deference,” that record easily supports the state court’s conclusion that counsel’s performance was not deficient.

Because deficiency failed under the doubly deferential standard, the court affirmed without needing to reach prejudice. The judgment: Affirmed.

Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984)

The foundational IAC standard: a petitioner must show deficient performance and prejudice. Performance is measured against an objective standard of reasonableness, with a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strategic choices made after reasonable investigation are “virtually unchallengeable.” The Eleventh Circuit invoked this presumption to validate trial counsel’s decision to forego an expert after consulting two specialists and concluding their testimony would be unfavorable or neutral.
Harrington v. Richter, 562 U.S. 86 (2011)

Reinforces that “in many instances cross-examination will be sufficient to expose defects in an expert’s presentation” and frames AEDPA review of Strickland claims as especially deferential: the question is whether there is any reasonable argument that counsel satisfied Strickland. The Eleventh Circuit relied on Richter to validate counsel’s choice to attack credibility and cross-examine, rather than present a minimally helpful defense expert.
Cullen v. Pinholster, 563 U.S. 170 (2011)

Clarifies AEDPA limits: federal review is constrained to the record before the state court that adjudicated the claim on the merits, and the operative inquiry is whether there exists any reasonable argument that counsel’s performance met Strickland. Here, the state record included the postconviction hearing where Dr. Anderson testified. Even with that addition, there was no material contradiction of the State’s core medical point, strengthening the state court’s and the Eleventh Circuit’s conclusions.
White v. Woodall, 572 U.S. 415 (2014)

Articulates AEDPA’s high bar: state decisions must be “beyond any possibility for fairminded disagreement” to warrant relief. The Eleventh Circuit quoted this to underscore that the state court’s acceptance of counsel’s strategic choice fell well within fairminded disagreement.
Renico v. Lett, 559 U.S. 766 (2010); Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217 (11th Cir. 2010); McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005)

These decisions restate AEDPA’s deferential posture and the appellate standard of review (de novo for the district court’s denial of habeas; deference to the state court’s merits decision). They set the procedural frame for the opinion.
Broadnax v. Comm’r, 996 F.3d 1215 (11th Cir. 2021)

Expands on Strickland’s investigation principle: strategic choices after thorough investigation are virtually unchallengeable; choices after limited investigation are reasonable to the extent the limits are supported by professional judgment. The Eleventh Circuit applied this to hold that telephonic consultations with two experts were a reasonable investigation that supported counsel’s strategy.
Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248 (11th Cir. 2020)

Emphasizes that when Strickland meets AEDPA, the review is “doubly” deferential. The court explicitly applied this framework to conclude that any reasonable argument in favor of counsel’s performance defeats the habeas claim.

Legal Reasoning

The court’s reasoning proceeds in two layers corresponding to the two sources of deference:

Strickland-based deference to counsel’s strategic judgment

Trial counsel’s actions satisfied the duty to investigate. Counsel contacted two qualified medical experts by phone, provided case details, and learned that their testimony would not materially counter the State’s position; injuries in alleged child sexual abuse often heal, so a normal exam years later is equally consistent with abuse or non-abuse. With that information, counsel made a sound strategic choice: do not present an expert who would not help (and might hurt), and instead focus on undermining the complainant’s credibility and cross-examining the State’s case. Under Strickland, such choices, made after reasonable investigation, are “virtually unchallengeable.”

The court rejected the idea that counsel had to “keep calling” experts until finding a dissenting voice. Strickland imposes a standard of reasonableness, not perfection or exhaustiveness. Likewise, there is no requirement that counsel employ a specific mode of consultation (e.g., in-person or with written reports); telephonic vetting sufficed here.

The appellate court also noted that Strickland does not demand that counsel “relay every conceivable choice” to the client. Even if counsel did not discuss the expert option with the defendant or his family, that does not convert a reasonable, investigated strategy into deficiency.
AEDPA-based deference to the state court’s merits adjudication

The state appellate court’s finding—that counsel performed reasonably—was not an unreasonable application of Strickland. Under Pinholster and Richter, the federal court’s task is to determine whether there is any reasonable argument that counsel satisfied Strickland. Here, there were multiple reasonable arguments: counsel investigated; expert testimony would have aligned with the State’s expert on the core medical point; and cross-examination is often sufficient to address expert testimony. Because fairminded jurists could agree with the state court’s ruling, AEDPA bars relief.

The court further underscored that the postconviction expert (Dr. Anderson) did not truly “refute” the State’s expert (Jn‑Baptiste). Both agreed that a normal exam cannot conclusively establish or negate historical abuse. This undermined the petitioner’s premise and further validated counsel’s pretrial assessment.

Having concluded that deficiency could not be shown under doubly deferential review, the court did not reach the prejudice prong.

Impact

Although unpublished and therefore non-binding as precedent, the opinion reflects and crystallizes several recurring themes in federal habeas review of IAC claims—particularly in child sexual abuse prosecutions where “normal” physical findings are medically common:

Reaffirmation of “no duty to shop for experts”: Trial counsel is not obliged to canvass an indefinite number of experts in the hope of locating a favorable outlier. A reasonable, good-faith preliminary consultation that reveals the defense expert would mirror the State’s testimony supports the decision not to present a defense expert.
Telephone consultations can suffice as reasonable investigation: The court explicitly recognizes that Strickland does not mandate a particular investigative method. Competent professional judgment based on phone consultations can be enough.
Cross-examination as an adequate counterweight: Consistent with Richter, the opinion validates reliance on cross-examination and credibility challenges rather than the presentation of neutral or marginally helpful experts.
Practical hurdle for “failure-to-retain-expert” IAC claims: Postconviction experts who largely agree with the State’s expert on key scientific points will rarely demonstrate deficient performance (and likely cannot show prejudice). Petitioners must show a materially different expert analysis that, if presented, would likely have changed the outcome.
AEDPA’s double deference remains dispositive: Even where defense strategy is debatable in hindsight, federal habeas relief will be unavailable unless the state court’s adjudication is beyond the bounds of fairminded disagreement.

For defense practitioners, the decision underscores the importance of documenting expert consultations (even informal ones), memorializing the strategic calculus, and being prepared to explain why cross-examination, rather than defense experts, was chosen. For petitioners, it signals that successful IAC claims on this theory will typically require (a) evidence of no meaningful investigation at all, or (b) a compelling showing that readily available experts would have offered substantially different and beneficial testimony that counsel unreasonably ignored.

Complex Concepts Simplified

AEDPA Deference (28 U.S.C. § 2254(d)): A federal habeas court can disturb a state court’s merits decision only if it is contrary to, or an unreasonable application of, clearly established Supreme Court law, or based on an unreasonable determination of the facts. “Unreasonable” means more than merely wrong; it must be outside the range of fairminded disagreement.
Strickland Standard for Ineffective Assistance: Two parts:
- Deficient performance: Counsel’s actions fell below an objective standard of reasonableness, with a presumption of reasonableness and deference to strategy informed by reasonable investigation.
- Prejudice: A reasonable probability that, but for counsel’s errors, the outcome would have been different.
Double Deference: When reviewing Strickland claims under AEDPA, courts apply deference twice—first to counsel’s strategic decisions, and second to the state court’s decision. The federal court asks whether any reasonable argument could support the state court’s view that counsel acted reasonably.
Non-Argument Calendar / Per Curiam: The case was decided without oral argument and by a unified, unsigned opinion of the panel, signaling that the issues were straightforward under established principles.
“Normal” exam in child sexual abuse cases: Medical literature and clinical experience recognize that injuries may heal; thus, a normal exam years after alleged abuse neither proves nor disproves abuse. Expert testimony often reflects this neutrality.
Certificate of Appealability (COA): A threshold determination that the petitioner has made a substantial showing of the denial of a constitutional right on a particular issue. Here, the COA focused the appeal on counsel’s alleged failure to present a counter-expert.

Conclusion

The Eleventh Circuit’s decision in Mackendrick consolidates a pragmatic and deferential approach to failure-to-retain-expert IAC claims. The court emphasizes that:

Reasonable, even informal, expert vetting (such as phone consultations) can satisfy counsel’s investigative duty.
Counsel is not required to keep searching for an expert willing to disagree with the State’s expert.
Cross-examination may be a constitutionally reasonable strategy when available experts would not materially aid the defense.
Under AEDPA’s double deference, a state court’s approval of such strategic decisions will almost always foreclose federal habeas relief unless the record shows a stark and material failure in investigation or a readily available, substantially different expert opinion that counsel unreasonably ignored.

While unpublished, the opinion is a clear, faithful application of Strickland, Richter, and Pinholster. It will serve as persuasive authority reinforcing that federal habeas courts do not micromanage defense strategy—particularly in the expert-witness context—absent a showing that the state court’s approval of counsel’s choices was outside the bounds of fairminded disagreement.