Sears v. Upton

Filing 73

OPINION AND ORDER concluding that Petitioner has failed to establish that he is entitled to relief under 28 U.S.C. § 2254, denying the petition for a writ of habeas corpus, and dismissing the instant action. The Court concludes that a Certificat e of Appealability shall issue as to Petitioner's Claim I, but limited to his claim that his trial counsel was ineffective during the penalty phase of his trial, Claim II regarding the trial court's Sabel order, Claim III regarding Petition er's assertions of juror misconduct, and Claim XIV regarding the use of statutory aggravating circumstance set forth in O.C.G.A. § 17-10-30(b)(7) without pretrial notice to Petitioner. Signed by Judge William S. Duffey, Jr. on 5/23/18. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEMARCUS ALI SEARS,
Petitioner,

1:10-CV-1983-WSD

v.
ERIC SELLERS, Warden, Georgia
Diagnostic and Classification Prison,1

Death Penalty Habeas Corpus
28 U.S.C. § 2254

Respondent.

OPINION AND ORDER
This matter is now before the Court for consideration of the merits of the
claims in the petition. After careful consideration, this Court concludes that
Petitioner has failed to demonstrate that he is entitled to relief.
I.

Background and Factual Summary
A.

State Court Proceedings

On September 22, 1993, a jury sitting in Cobb County Superior Court
convicted Petitioner Demarcus Ali Sears of armed robbery and kidnapping with
bodily injury. On September 25, 1993, after a penalty phase hearing, the jury
found four statutory aggravating circumstances and recommended that Petitioner
1

Pursuant to Fed. R. Civ. P. 25(d), the Court, in its January 2, 2018, Order
[62], substituted Eric Sellers, the current Warden, as Respondent in this matter.
1

be sentenced to death. The trial court imposed a death sentence for the kidnapping
with bodily injury conviction and a life sentence for the armed robbery conviction.
On July 18, 1996, the trial court denied Petitioner’s motion for new trial.
Petitioner appealed, and the Georgia Supreme Court affirmed Petitioner’s
convictions, but remanded the case as to Petitioner’s death sentence to allow
Petitioner to develop the record regarding his claim of jury misconduct. Sears v.
State, 493 S.E.2d 180, 188 (1997). After the remand, the Georgia Supreme Court
affirmed Petitioner’s death sentence. Sears v. State, 514 S.E.2d 426, 437 (1999).
The United States Supreme Court denied Petitioner’s petition for a writ of
certiorari on October 12, 1999.
Petitioner next filed a petition for a writ of habeas corpus in Butts County
Superior Court, which court denied the petition on January 9, 2008. The Georgia
Supreme Court denied Petitioner’s certificate of probable cause to appeal the
denial of his habeas corpus petition on September 28, 2009. The United States
Supreme Court, however, granted Petitioner’s writ of certiorari, and upon review
of Petitioner’s claims, vacated and remanded, holding that the Butts County
Superior Court failed to apply the proper prejudice inquiry in determining that trial

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counsel’s facially inadequate mitigation investigation did not prejudice defendant.
Sears v. Upton, 561 U.S. 945 (2010).
After the remand, the Georgia Supreme Court vacated its order denying the
certificate of probable cause, vacated the Butts County Superior Court’s order, and
remanded the case for further proceedings consistent with the United States
Supreme Court’s opinion. On August 16, 2011, the Butts County Superior Court
again denied Petitioner’s habeas corpus petition, concluding that Petitioner could
not demonstrate prejudice with respect to trial counsel’s performance during the
penalty phase of the trial and otherwise adopting the Butts County court’s prior
order denying relief. The Georgia Supreme Court granted Petitioner’s certificate
of probable cause, and, in an opinion issued on November 18, 2013, affirmed the
lower court. Sears v. Humphrey, 751 S.E.2d 365 (Ga. 2013). The United States
Supreme Court denied certiorari review on May 19, 2014. Sears v. Chatman, 134
S. Ct. 2292 (2014). The instant action was originally filed in 2010 after the
Georgia Supreme Court denied Petitioner’s certificate of probable cause to appeal
the denial of habeas corpus relief. After the United States Supreme Court granted
certiorari review in that action, this Court stayed this action to allow Petitioner to
exhaust his state court remedies.

3

B.

Factual Summary of Petitioner’s Crimes

According to the Georgia Supreme Court, the evidence presented at
Petitioner’s trial was sufficient for the jury to find that:
[O]n the afternoon of October 7, 1990, [Petitioner] and Phillip
Williams were walking through Atlanta because their car had broken
down. Wanting to return home to Ohio, where they lived, they
walked to a Waffle House in Smyrna and tried to borrow money from
several patrons in the restaurant. They told the patrons that their car
had broken down and they needed money to go to Cincinnati.
[Petitioner] carried a black briefcase that contained brass knuckles,
knives and a set of old handcuffs that was missing a key. He opened
the briefcase in the restaurant and tried to sell some of the items to a
customer. After receiving directions and a couple of dollars for bus
fare, [Petitioner] and Williams walked to a nearby Kroger food store.
A police officer observed them loitering near the Kroger parking lot
and briefly spoke with them before he left in response to a radio call.
Subsequently, they decided to steal a car so they could drive back to
Cincinnati.
They spotted the victim, Gloria Wilbur, when she parked her 1985
Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur
returned to her car and placed her groceries in the trunk. [Petitioner]
approached her, struck her with the brass knuckles and forced her into
the car. Williams then got behind the wheel and they drove north on
I-75. [Petitioner] told Ms. Wilbur to keep quiet, pulled her into the
back seat, and handcuffed her with her hands behind her back. When
they stopped for gas and hamburgers, [Petitioner] wedged Ms. Wilbur
down between the seats and covered her with book bags to prevent
discovery. While they were driving through Tennessee, he raped her.
They crossed the border into Kentucky around 1:00 a.m. and stopped
the car. Despite her pleas to remain in the car, [Petitioner] took the
victim into the bushes along I-75 and stabbed her to death.

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Ms. Wilbur’s body was found, still handcuffed, almost a week later.
Her abandoned Buick was discovered in a Cincinnati suburb.
Bloodstains in the car matched the victim and pubic hair taken from
the back seat matched [Petitioner].
Based on an identification by witnesses at the Waffle House and a tip
from an Ohio informant, the police questioned Williams and
[Petitioner]. Both men gave statements. [Petitioner] admitted that he
had taken the Buick and kidnapped, raped and killed the victim. His
statement matched Williams’ statement, except that [Petitioner]
claimed that it was Williams who had struck Ms. Wilbur with the
brass knuckles and Williams claimed that it was [Petitioner]. Both
men stated that only [Petitioner] had raped and stabbed her.
[Petitioner] also consented to a search of his mother’s house, where he
lived, and was escorted by police to this residence. He took the police
to his room and showed them the black briefcase and brass knuckles.
Williams pled guilty in exchange for two life sentences and testified
for the state at [Petitioner]’s trial.
Sears v. State, 493 S.E.2d at 182-83.
C.

Proceedings in This Court

On June 25, 2010, days before the United States Supreme Court granted
certiorari in his state court habeas corpus action, Petitioner filed the instant Petition
for Writ of Habeas Corpus. ([1]). On August 20, 2010, the Court stayed the action
pending resolution of the state habeas proceedings. ([9]). The Court held the
action in abeyance until May 29, 2014, when the Court ordered Respondent to file
the underlying record documents and set a deadline for Petitioner to file an
Amended Petition. ([13]). Petitioner filed a First Amended Petition on

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August 4, 2014, asserting sixteen claims for relief. ([28]). On April 8, 2016, the
Court reviewed Respondent’s procedural defenses and dismissed a portion of
Petitioner’s Claims I, V, VII, and XI and all of Petitioner’s Claims IX, XIII, and
XV. ([37]). On June 20, 2017, the Court denied Petitioner’s motions for discovery
and an evidentiary hearing. ([54]). The parties briefed Petitioner’s remaining
claims, which the Court now considers.
II.

Standard of Review Under 28 U.S.C. § 2254
Pursuant to 28 U.S.C. § 2254, a federal court may issue a writ of habeas

corpus on behalf of a person held in custody pursuant to a judgment of a state court
if that person is held in violation of his rights under federal law. 28 U.S.C.
§ 2254(a). This power is limited, however, because a restriction applies to claims
that have been “adjudicated on the merits in State court proceedings.” 28 U.S.C.
§ 2254(d). Under § 2254(d), a habeas corpus application “shall not be granted
with respect to [such a] claim . . . 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.

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This standard is “difficult to meet,” Harrington v. Richter, 562 U.S. 86, 102
(2011), and “highly deferential,” demanding “that state-court decisions be given
the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation
and internal quotation marks omitted), and requiring the petitioner to carry the
burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing Visciotti,
537 U.S. at 25). In Pinholster, the Supreme Court further held
that review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits. Section
2254(d)(1) refers, in the past tense, to a state-court adjudication that
“resulted in” a decision that was contrary to, or “involved” an
unreasonable application of, established law. This backward-looking
language requires an examination of the state-court decision at the
time it was made. It follows that the record under review is limited to
the record in existence at that same time i.e., the record before the
state court.
Id. at 181-82; see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (holding
that state court decisions are measured against Supreme Court precedent at “the
time the state court [rendered] its decision.”).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court analyzed
how federal courts should apply § 2254(d). To determine whether a particular
state court decision is “contrary to” then-established law, this Court considers
whether that decision “applies a rule that contradicts [such] law” and how the

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decision “confronts [the] set of facts” that were before the state court. Id. at 405,
406. If the state court decision “identifies the correct governing legal principle”
this Court determines whether the decision “unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413. This reasonableness determination is
objective, and a federal court may not issue a writ of habeas corpus simply because
it concludes in its independent judgment that the state court was incorrect. Id.
at 410. In other words, it matters not that the state court’s application of clearly
established federal law was incorrect so long as that misapplication was objectively
reasonable. Id. (“[A]n unreasonable application of federal law is different from an
incorrect application of federal law.”). Habeas relief contrary to a state court
holding is precluded “so long as fairminded jurists could disagree on the
correctness of the state court’s decision.” Harrington, 562 U.S. at 102 (internal
quotation marks omitted); see Landers v. Warden, Atty. Gen. of Ala., 776 F.3d
1288, 1294 (11th Cir. 2015). In order to obtain habeas corpus relief in federal
court, “a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103.

8

Not all errors of constitutional magnitude warrant habeas relief, and “there
may be some constitutional errors which in the setting of a particular case are so
unimportant and insignificant that they may, consistent with the Federal
Constitution, be deemed harmless, not requiring the automatic reversal of the
conviction.” Chapman v. California, 386 U.S. 18, 22 (1967). A habeas petitioner
is entitled to relief only if the error “had substantial and injurious effect or
influence in determining the jury's verdict,” resulting in “actual prejudice.” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993).
The Court’s review of Petitioner’s claims is further limited under
§ 2254(e)(1) by a presumption of correctness that applies to the factual findings
made by state trial and appellate courts. Petitioner may rebut this presumption
only by presenting clear and convincing evidence to the contrary.
Finally, the Court notes that in Wilson v. Sellers, 138 S. Ct. 1188 (2018), the
United States Supreme Court reversed the Eleventh Circuit’s holding in Wilson v.
Warden, Ga. Diagnostic Prison, 842 F.3d 1155 (11th Cir. 2016) that addressed how
a state appellate court’s summary treatment of a claim should be analyzed under
§ 2254(d). Rather than analyze the arguments or theories that could have
supported the state court’s summary decision as previously held by the Eleventh

9

Circuit, federal courts should “look through” the unexplained decision to the last
related state-court decision that does provide a relevant rational and presume the
that the unexplained decision adopted the same reasoning. See Wilson v. Sellers,
138 S. Ct. at 1192-97 (discussing the “look through” analysis). approach
announced in Ylst v. Nunnemaker, 501 U.S. 797 (1991). The Court applies the
“look through” approach in evaluating under § 2254(d) the Georgia Supreme
Court’s summary denial of Petitioner’s application for certificate of probable cause
to appeal the denial of habeas corpus relief.
III.

Discussion of Petitioner’s Claims for Relief
A.

Claim I: Ineffective Assistance of Counsel
1.

Legal Standard

Petitioner contends in Claim 1 that his trial counsel rendered ineffective
assistance in several ways. Strickland v. Washington, 466 U.S. 668 (1984),
provides the standard for evaluating claims of ineffective assistance of counsel.
The analysis is two-pronged, and the Court may “dispose of the ineffectiveness
claim on either of its two grounds.” Atkins v. Singletary, 965 F.2d 952, 959 (11th
Cir. 1992); see Strickland, 466 U.S. at 697 (“There is no reason for a court

10

deciding an ineffectiveness claim . . . to address both components of the inquiry if
the [petitioner] makes an insufficient showing on one.”).
Petitioner must first “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment” and show
that “in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.” Strickland, 466 U.S.
at 690. The court must be “highly deferential,” and must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. “Given the strong presumption in favor of
competence, the petitioner’s burden of persuasion – though the presumption is not
insurmountable – is a heavy one.” Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir.
2001) (citation omitted). As the Eleventh Circuit has stated, “[t]he 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.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.
1995) (en banc). Rather, the inquiry is whether counsel’s actions were “so patently
unreasonable that no competent attorney would have chosen them.” Kelly v.
United States, 820 F.2d 1173, 1176 (11th Cir. 1987). Courts must “allow lawyers
broad discretion to represent their clients by pursuing their own strategy,” White v.

11

Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992), and must give “great deference”
to reasonable strategic decisions, Dingle v. Secretary for Department of
Corrections, 480 F.3d 1092, 1099 (11th Cir. 2007). “When courts are examining
the performance of an experienced trial counsel, the presumption that his conduct
was reasonable is even stronger.” Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000).2
To meet the second prong of the Strickland test, Petitioner must demonstrate
that counsel’s unreasonable acts or omissions prejudiced him. Strickland, 466 U.S.
at 691-92. That is, Petitioner “must show that there is a reasonable probability
that, but for the counsel’s unprofessional errors, the result of the proceeding would
2

In his reply memorandum, Petitioner maintains that Chandler “is not the last
word” in making a sufficiency of representation determination. ([72] at 10-11). In
support, Petitioner misquotes the Supreme Court for the proposition that “[t]he
character of a particular lawyer’s experience may shed light in an evaluation of his
actual performance, but it does not justify a presumption of effectiveness in the
absence of such an evaluation.” ([72] at 11 (emphasis supplied), quoting United
States v. Cronic, 466 U.S. 648,665 (1984)). But Cronic addressed whether a
presumption of ineffectiveness is appropriate for inexperienced trial counsel.
Cronic had been convicted of mail fraud, and he raised a claim of ineffective
assistance of counsel by, in part, contending that the youth and inexperience of his
trial counsel rendered counsel’s performance deficient. The Supreme Court
discounted that argument, stating, “[t]he character of a particular lawyer’s
experience may shed light in an evaluation of his actual performance, but it does
not justify a presumption of ineffectiveness in the absence of such an evaluation.
Cronic, 466 U.S. at 665 (emphasis supplied). Cronic does not undermine the
presumption of effectiveness required by Strickland.
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have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome,” id. at 694, requiring “a substantial, not just
conceivable, likelihood of a different result.” Pinholster, 563 U.S. at 190
(quotation and citation omitted).
The Court’s review of the Georgia Supreme Court’ rejection of Petitioner’s
claim of ineffective assistance of counsel is “doubly deferential.” Id. at 190
(quotation and citation omitted). The Court takes a “highly deferential look at
counsel’s performance [under] Strickland . . . through the deferential lens of
§ 2254(d).” Id.
2.

Ineffective Assistance of Counsel During the Penalty Phase of
the Trial
a.

Background

Petitioner first claims that his trial counsel rendered ineffective assistance by
failing to adequately investigate and present mitigation evidence during the penalty
phase of his trial. According to Petitioner, trial counsel failed to uncover evidence
relating to Petitioner’s social history, family background, sexual abuse that he
suffered as a child, his mental deficits, and his abuse of drugs. Petitioner claims
that, if trial counsel had discovered and properly presented this evidence, a

13

reasonable probability exists that the outcome of the penalty phase of his trial
would have been different.
As found by the Georgia Supreme Court, trial counsel’s effort to prepare for
the penalty phase of Petitioner’s trial included first traveling to Kentucky and Ohio
for a week to investigate Petitioner’s case and to speak with potential witnesses.
Sears v. Humphrey, 751 S.E.2d at 372. While on that trip, trial counsel met
Petitioner’s mother, and she directed trial counsel to individuals who could appear
to testify for Petitioner during the penalty phase. Id. at 372-73 Trial counsel
interviewed “approximately a dozen potential mitigation witnesses” and “explored
pertinent areas of mitigation.” Id. In addition to members of Petitioner’s
immediate family, “trial counsel talked with a variety of people, including
neighbors, long-time family friends, [Petitioner’s] former high school counselor, a
woman for whom he had babysat, and a young woman who had attended school
with him.” Id. at 374.
Trial counsel asked Petitioner’s mother to obtain his school records, but trial
counsel never received them. Id. at 375; see also ([21.12 at 28]). Trial counsel
was, however, able to learn about Petitioner’s schooling from Petitioner’s parents
and the school guidance counselor they talked to. For a variety of reasons that will

14

be discussed at greater length below, trial counsel also opted not to have a mental
health evaluation performed on Petitioner. Id.
Trial counsel’s mitigation defense “involved showing that Petitioner came
from a respected, well-liked family; that, despite some problems at school,
Petitioner was also well-liked, had never been in any serious trouble, had no
history of violence, and was considered polite and well-mannered by teachers,
friends, and neighbors; that [codefendant] Williams’ influence, Petitioner’s own
youth and immaturity, and the fact that he was stranded over 400 miles away from
home all contributed to his commission of uncharacteristically violent crimes; that
he cooperated with police; and that sentencing him to death would devastate his
parents, his family, and their friends, who were well-regarded members of his
community.” Id. at 377.
During the penalty phase of the trial, counsel presented the testimony of
people who knew Petitioner well, including Petitioner’s mother, adults who knew
Petitioner when he was growing up, and Petitioner’s friends. The witnesses
testified that Petitioner was generally friendly and well behaved, that he got along
well with his family, and that it was a shock to learn that Petitioner had committed
the crimes for which he was convicted. See id. at 378-80. They all also pleaded

15

with the jury to spare Petitioner’s life because his death would cause so much pain
to his family. Id.
In his closing argument, [trial counsel] asked the jurors to consider the
following mitigating factors: (1) [Petitioner’s] youth and immaturity
at the time of the crimes; (2) his non-violent history; (3) the fact that
[Petitioner] was asking for the same “harsh sentence” as Williams,
who had pled guilty to the same indictment on which Petitioner was
being tried and who counsel argued was a drug dealer, a thief, and
“the detail man in this case”; (4) the fact that [Petitioner] would also
“be tried, convicted, and punished in Kentucky, . . . where the murder
occurred” and where the prosecution was also seeking the death
penalty; (5) the fact that Williams initially lied to the police, whereas
“Petitioner was candid from the start” and cooperated with police by
accompanying them to his parents’ home and directing them to the
physical evidence; (6) the character of Petitioner’s family and the
impact sentencing Petitioner to death would have on its members; and
(7) a pretrial letter from defense counsel to the district attorney
confirming Petitioner’s offer to plead guilty to the charges in
exchange for two consecutive life sentences, which the defense
entered into evidence as authorized by the law at that time.
Id. at 380.
The Butts County Superior Court, in its first order denying habeas relief
[21.12], found that trial counsel’s performance during the penalty phase of
Petitioner’s trial was inadequate because counsel’s investigation to uncover
mitigating evidence was not thorough. (Id. at 27). The court concluded, however,
that Petitioner had failed to show prejudice, noting that Petitioner “failed to
establish that there is a reasonable likelihood that the outcome of his trial would

16

have been different if his counsel had done more investigation.” ([21.12] at
29-30). The state habeas corpus court noted that trial counsel presented a
reasonable theory of mitigation and that it was impossible to determine “what
effect a different mitigation theory would have had” on the jurors. (Id. at 30).
After the Georgia Supreme Court summarily denied review, the United
States Supreme Court identified two errors in the Superior Court’s Strickland
analysis: (1) “the court curtailed a more probing prejudice inquiry because it
placed undue reliance on the assumed reasonableness of counsel's mitigation
theory;” and (2) “the court failed to apply the proper prejudice inquiry” under
Strickland which “would have taken into account the newly uncovered evidence of
[Petitioner’s] significant mental and psychological impairments [introduced in the
state habeas corpus proceeding] along with the mitigation evidence introduced
during [Petitioner’s] penalty phase trial.” Sears v. Upton, 561 U.S. at 953-56.
On remand, the Butts County Superior Court assigned a new judge to review
the case. In denying relief the second time, the Superior Court expressly declined
to address the question of whether trial counsel had been ineffective in failing to
perform an adequate investigation in preparation for the penalty phase. ([21.36]
at 7). The court, however, made “findings of fact regarding trial counsel’s

17

performance . . . in order to adequately address and analyze the prejudice
components of Petitioner’s ineffective assistance of counsel claim.” (Id. at 8). The
court considered the evidence uncovered by trial counsel, evaluated trial counsel’s
strategy in presenting that evidence and declining a mental health examination, and
compared that evidence to the new evidence in evaluating prejudice. (Id. at 7-20).
The court found that “even if the evidence presented at the state habeas hearing
were presented before the jury, the evidence was not significant enough to
reasonably suggest that Petitioner’s sentence would have been different.” ([21.36]
at 20). After reviewing all of the case law cited by Petitioner, as well as additional
affidavits, the court concluded that Petitioner was not prejudiced by trial counsel’s
performance during the penalty phase of the trial because “after weighing the total
evidence, of aggravating and mitigating nature, presented at trial and in these
proceedings, there is no reasonable likelihood of a different outcome” and denied
Petitioner’s claim. (Id. at 27).
The Georgia Supreme Court affirmed the Superior Court, providing an
equally in-depth analysis. But the Georgia Supreme Court specifically addressed
trial counsel’s investigation and concluded that “trial counsel conducted a
reasonable investigation for mitigating evidence.” Sears v. Humphrey, 751 S.E.2d

18

at 376. The Georgia Supreme Court further agreed with the Superior Court that,
even if trial counsel had been deficient in the investigation for the penalty phase,
Petitioner had failed to demonstrate prejudice under Strickland. Id. at 377.
Having carefully reviewed the Georgia Supreme Court’s opinion in light of
the record and Petitioner’s arguments, this Court concludes that the state court’s
decision was not “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” nor did it result “in
a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
b.

Claim that the State Courts Violated the Supreme Court’s
Mandate

Petitioner argues that the Georgia Supreme Court’s holding is not entitled to
§ 2254(d) deference and should be reviewed de novo, because the U.S. Supreme
Court resolved the adequacy of counsel’s performance “conclusively,” and the
issue “was not within the purview of the Georgia Supreme Court to revisit.” ([60]
at 59). The Georgia Supreme Court reasoned that it had authority to address the
adequacy of trial counsel’s investigation and doing so did not violate the Supreme
Court’s mandate:

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As an initial matter, we address [Petitioner’s] claim that the habeas
court violated the Supreme Court’s mandate in several ways. First,
[Petitioner] contends that the habeas court violated the mandate by
addressing trial counsel’s performance in its 2011 Order. The habeas
court concluded in the 2008 Order that [Petitioner] had demonstrated
that his counsel’s sentencing phase investigation was constitutionally
deficient based upon its finding that “counsel’s investigation into
mitigation evidence [was] limited to one day or less, talking to
witnesses selected by Petitioner’s mother.” The habeas court
concluded nevertheless that, “[b]ecause counsel put forth a reasonable
theory with supporting evidence,” [Petitioner] had failed to prove
prejudice. Because the Supreme Court concluded that the habeas
court erred in its “analysis regarding whether counsel’s facially
inadequate mitigation investigation prejudiced [Petitioner],” Sears v.
Upton, 130 S. Ct. at 3264, [Petitioner] claims that the habeas court
violated the mandate issued by the Supreme Court by re-examining
trial counsel’s performance when that issue was not before the habeas
court on remand. See Briggs v. Penn. R. Co., 334 U.S. 304, 306
(1948) (holding that “an inferior court has no power or authority to
deviate from the mandate issued by an appellate court”); In re Sanford
Fork & Tool Co., 160 U.S. 247, 255 (1895) (“When a case has been
once decided by th[e Supreme C]ourt on appeal, and remanded to [a
lower c]ourt, whatever was before th[e Supreme C]ourt, and disposed
of by its decree, is considered as finally settled.”).
However, we do not read the language of Sears v. Upton as
establishing that the Supreme Court “disposed of” either prong of
[Petitioner’s] ineffective assistance claim. See In re Sanford Fork &
Tool Co., 160 U.S. at 256 (stating that “[t]he opinion delivered by th[e
Supreme C]ourt, at the time of rendering its decree, may be consulted
to ascertain what was intended by its mandate”). Rather, we read the
remanding opinion as showing that the Supreme Court only assumed
for the purposes of its discussion the correctness of the 2008 Order’s
conclusion that trial counsel conducted a “‘constitutionally
inadequate’” investigation. Sears v. Upton, 130 S. Ct. at 3261 (stating
that the evidence that [Petitioner] presented in his habeas proceeding

20

“was not brought to light” at the time of his trial “because – in the
words of the state [habeas] court – Petitioner’s counsel conducted a
penalty phase investigation that was ‘on its face . . . constitutionally
inadequate’”) (quoting [Petitioner’s] App. to Pet. for Cert. 27B
(emphasis supplied)); id. at 3264 (stating that “[i]n [the habeas
court’s] view, the cursory nature of counsel’s investigation into
mitigation evidence . . . was ‘on its face . . . constitutionally
inadequate’ ”) (quoting [Petitioner’s] App. to Pet. for Cert. 27B
(emphasis supplied)).
Our reading of the Supreme Court’s opinion is sound. First, the
Supreme Court did not explicitly engage with any evidence in the
record regarding trial counsel’s performance. Compare, e.g., Wiggins
v. Smith, 539 U.S. 510, 523-34 (2003); Williams v. Taylor, 529 U.S.
362, 395-96 (2000); Strickland, 466 U.S. at 699. Second, the
Supreme Court never stated that it agreed with the habeas court that
the assistance rendered by [Petitioner’s] trial counsel was
constitutionally deficient. Compare Kimmelman v. Morrison, 477
U.S. 365 (1986) (stating that the Court “agree[d] with the District
Court and the Court of Appeals that the assistance rendered [to the
defendant] by his trial counsel was constitutionally deficient”).
Therefore, we conclude that neither prong of [Petitioner’s] ineffective
assistance of counsel claim was finally disposed of by the Supreme
Court.
Sears v. Humphrey, 751 S.E.2d at 369-70 (footnotes omitted, some alterations in
original).
The Court agrees with the state court that nothing in the United States
Supreme Court’s opinion prevented the state courts from revisiting the question of
trial counsel’s performance. At a minimum, fairminded jurists “could disagree on
the correctness of the state court’s decision,” Harrington, 562 U.S. at 102 (internal

21

quotation marks omitted), and habeas relief on this basis is therefore precluded.
That the United States Supreme Court denied certiorari and declined to address
whether the state court violated its mandate provides additional evidence that
fairminded jurists could find that the Georgia Supreme Court had authority to
address the adequacy of trial counsel’s investigation. Whether the state court
actually had this authority is not at issue. Rather, under the rubric of § 2254(d),
this Court is concerned only with whether Petitioner has met his burden of
demonstrating that the state court’s conclusion that trial counsel’s performance was
constitutionally adequate was objectively unreasonable either in comparison to
constitutional law as described by the Supreme Court or in light of the facts as
determined by the Georgia Supreme Court. The Supreme Court did not evaluate
the state court’s initial determination that trial counsel’s investigation was
deficient, much less “conclusively” dispose of the issue as Petitioner contends.
Even if the Georgia Supreme Court improperly considered the performance
prong of the Strickland test, Petitioner has failed to demonstrate entitlement to
relief with respect to the prejudice prong, as explained below. Either way,
Petitioner’s Strickland claim fails.

22

c.

Trial Counsel’s Decision to Forego a Mental Health
Evaluation

Petitioner next argues that the Georgia Supreme Court unreasonably
determined that trial counsel’s decision to forego hiring a mental health expert did
not amount to ineffective assistance. Petitioner criticizes the Georgia Supreme
Court’s finding that trial counsel had no indication that he had a significant or
noticeable mental disorder, see Sears v. Humphrey, 751 S.E.2d at 376, as having
no record support.
Petitioner contends trial counsel had ample indication that he suffered from
some mental abnormality. Petitioner argues that trial counsel signed an affidavit
characterizing Petitioner’s behavior as “odd,” “bizarre,” “disturbed,” “out of touch
with reality,” and “erratic,” and noting that his significant impulsiveness indicated
that “he could have some psychological imbalance.” ([60] at 60). Petitioner
maintains that it was obvious that trial counsel should have had Petitioner
evaluated, that such an evaluation would have revealed mitigation evidence, and
that this new evidence would have a reasonable probability of changing the
outcome of the penalty phase of Petitioner’s trial.
The record reveals significant countervailing factors that led trial counsel to
forego a mental health examination. Trial counsel initially filed a motion for funds

23

to hire a mental health expert, but after they returned from their trip to Ohio and
Kentucky, counsel withdrew the motion for a variety of reasons. Key among those
reasons was the evidentiary rule established in Sabel v. State, 282 S.E.2d 61
(Ga. 1981), which was then the law of Georgia. Under Sabel, if trial counsel had
hired a mental health expert, they would have had to turn that expert’s report over
to the prosecution, and the prosecution would be permitted to call that expert to the
stand even if the defense opted not to. Id. As a result, even if the expert’s
evaluation revealed something that trial counsel wanted desperately to keep the
jury from learning – for example, a diagnosis of psychopathy – prosecutors would
have access to that information and would be free to tell the jury about it as well as
point out that trial counsel was trying to hide this information from the jury. Trial
counsel also harbored concerns that Petitioner might divulge incriminating
information to the examiner during a psychological examination, and that
information might be reflected in the report that prosecutors would see. (See
[20.32] at 47).3

3

Petitioner also contends that the effect of the rule in Sabel, was to deny him
of effective assistance. ([60] at 68-70). In his Claim II, discussed below, Petitioner
argues that he was deprived of a fair trial because the of how the trial court applied
the rule in Sabel. This Court considers Petitioner’s claim that the trial court’s
24

Finally, at that time, when faced with requests for a mental health
examination, Superior Court judges in Cobb County had the practice of appointing
a mental health expert employed by the state, and to trial counsel, “it appeared that
probably we were going to get a whitewash, for want of a better word, from that
type of expert.” (Id. at 27-28).
As found by the Georgia Supreme Court:
Trial counsel testified that, in deciding to withdraw the motion [for an
expert mental health evaluation], they considered the fact that the trial
judge who was assigned to the case routinely appointed a Georgia
Regional Hospital doctor when indigent defendants sought expert
psychological assistance. Based on their own experience and
discussions with other attorneys who were experienced in obtaining
mental health evaluations for their indigent clients in Cobb County,
trial counsel did not think that a mental health evaluation by a state
doctor was likely to yield anything helpful to [Petitioner]. In addition,
given [Petitioner’s] inclination to present himself as a “tough guy,”
counsel were concerned that, even if he received the warnings
required by Estelle v. Smith, 451 U.S. 454 (1981), and Miranda v.
Arizona, 384 U.S. 436 (1966), [Petitioner] might make damaging
statements that could be recounted by a court-appointed psychiatrist at
trial. Thus, counsel stated that, because of the law at the time, they
feared that an evaluation would almost certainly benefit the
prosecution.
Sears v. Humphrey, 751 S.E.2d at 375.

Sabel ruling caused his trial counsel to be ineffective to be a part of that broader
claim.
25

The Georgia Supreme Court acknowledged trial counsel’s affidavit
statements and deposition testimony concerning Petitioner’s “bizarre” speech and
demeanor, but the state court noted that trial counsel also “testified that they never
had any trouble communicating with [Petitioner].” Id. at 375-76. Trial counsel
further testified that they never “saw any behavior by [Petitioner] indicating any
type of mental deficiency that could be used in mitigation and that, if they had,
they would have had [Petitioner] evaluated despite the fact that the rule in Sabel
was in effect at the time of [Petitioner’s] trial.” Id.
The Georgia Supreme Court also noted:
Counsel discussed their options with [Petitioner], “advis[ing] him that
it was problematic whether the appointment of a mental health expert
would be advantageous or necessary to the defense.” Both attorneys
testified that, after consulting with counsel, it was [Petitioner’s]
choice not to be evaluated. See Strickland, 466 U.S. at 691 (stating
that it is proper for counsel to base their actions on “informed strategic
choices made by the defendant”).
Id.
The record establishes that trial counsel carefully considered the decision not
to have Petitioner undergo a mental health evaluation. The Georgia Supreme
Court based its conclusion that trial counsel was not ineffective for failing to
secure such an evaluation on a broad range of evidence. It was based, in part, on

26

trial counsel’s considered opinion that a mental health evaluation would not reveal
helpful mitigating evidence. It was further based on trial counsel’s reasonable
strategic decision that the possible benefits of a having Petitioner evaluated were
far outweighed by the potential costs, especially given the possibility that
Petitioner may disclose something harmful, the disclosure requirements imposed in
Sabel, and the small likelihood that the court-appointed mental health expert would
render a helpful opinion. Even trial counsel’s affidavit, so heavily relied upon by
Petitioner, highlights trial counsel’s struggle in wrestling with the decision to
withdraw their motion for an evaluation and that they had a reasonable strategic
basis for doing so. After considering the Sable ruling and Cobb County’s practice
concerning the appointment of psychological experts for indigent criminal
defendants, they “determined that we could not have [Petitioner] examined pretrial
without facing an untenable risk of doing more harm than good.” ([19.11] at 97).
Further:
As an alternative to seeking a mental health evaluation which was
likely to be harmful overall to our client, under Georgia law at the
time, we developed an alternate strategy for the sentencing phase of
trial. It was our hope that the Sears family, neighborhood friends and
other lay witnesses could portray [Petitioner] as a previously nonviolent teenager who committed a terrible crime which was out of
character for him, thereby avoiding the ultimate punishment.

27

([20.32] at 108-09).
Such reasoning is the essence of strategic thinking under Strickland. The
Court thus concludes that the Georgia Supreme Court did not error in holding that
trial counsel’s decision to forego a mental health evaluation for Petitioner did not
render counsel’s assistance ineffective.
Petitioner mischaracterizes the Georgia Supreme Court decision in stating
that the court “ruled that unless counsel is able to observe a ‘significant and
noticeable disorder,’ counsel is absolved of the duty to explore their client’s mental
health.” ([60] at 64). The Georgia Supreme Court actually said that it agreed with
the Butts County Superior Court “that ‘without any indication that Petitioner was
suffering from any significant, noticeable disorder,’ trial counsel made a
reasonable strategic decision not to have him evaluated by a mental health expert
under the circumstances facing counsel at the time.” Sears v. Humphrey, 751
S.E.2d at 377 (quoting [21-36 at 11]) (emphasis supplied). The Georgia Supreme
Court explained at length that, while some evidence existed that Petitioner had
some mental dysfunction, trial counsel reasonably declined a mental health
evaluation given the significant countervailing factors trial counsel faced at the

28

time (i.e. the Sabel disclosure rule and the likely opinion of a court-appointed
expert). This Court agrees.
d.

The Georgia Supreme Court’s’ Conclusion that Trial
Counsel Conducted a Reasonable Investigation

In his final brief, Petitioner dedicates significant argument to his contention
that the Georgia Supreme Court unreasonably determined that trial counsel
conducted a reasonable investigation in preparation for the penalty phase of the
trial. According to Petitioner, trial counsel spent only a single afternoon of their
trip to Ohio interviewing mitigation witnesses and never followed up on the
information that they learned. ([60] at 80-88). It was on this basis that the Butts
County Superior Court originally determined that trial counsel’s performance was
deficient. ([21.12] at 27).
Petitioner further contends that many of the Georgia Supreme Court’s
findings regarding trial counsel’s investigation are not supported by the record.
For example, the state court found that trial counsel talked to Petitioner “about
recording evidence from him regarding his background, family history, [and]
social history,” and that trial counsel collected names of potential mitigation
witnesses from Petitioner. Sears v. Humphrey, 751 S.E.2d at 372. Petitioner
contends that because trial counsel’s files contain no evidence regarding

29

background or a list of witnesses provided by Petitioner, the state court’s finding
has no support. ([60] at 84). However, in his deposition, trial counsel testified that
he told Petitioner that he needed to provide trial counsel with evidence on his
background, his family history, and his social history. ([20.32] at 77). Trial
counsel further testified that Petitioner had provided names of mitigation witnesses
to talk to. ([20.35] at 35-36). Petitioner does not refute this testimony. That trial
counsel’s files lack additional evidence supporting this testimony does not render
the state court’s finding incorrect, and the record supports the state court’s finding.
Petitioner next argues that none of the mitigation witnesses that trial counsel
interviewed in Ohio were selected by trial counsel “as part of a specific effort to
uncover evidence of [Petitioner]’s background or mental impairment.” ([60] at
75). Rather, Petitioner contends, trial counsel relied entirely on Petitioner’s mother
to identify which witnesses should be interviewed, and, as a result, the witnesses
“were not chosen by a professional with an understanding of what constituted
relevant, admissible evidence.” (Id. at 76).
Petitioner mischaracterizes the evidence. While Petitioner’s mother
gathered the witnesses to her home that day, the people that she chose were based
on counsel’s description of the types of people trial counsel wanted to interview.

30

([20-32] at 57). Trial counsel, who did not know Petitioner or his family and did
not live in Ohio, acted reasonably in describing to Petitioner’s mother the types of
people he needed to talk to and allowing her to arrange a meeting with those
people.
This case is distinguishable from Ferrell v. Hall, 640 F.3d 1199 (11th Cir.
2011), cited by Petitioner. ([60] at 76). In Ferrell, the Eleventh Circuit concluded
that the Georgia Supreme Court was unreasonable in concluding that trial counsel
had not been deficient in investigating Petitioner’s background and mental health.
Ferrell’s jury never heard that:
Ferrell suffers from extensive, disabling mental health problems and
diseases including organic brain damage to the frontal lobe, bipolar
disorder, and temporal lobe epilepsy. Nor did they learn that the
defendant had attempted suicide at age eleven, or that because of these
mental health issues, Ferrell exhibits increased impulsivity and
decreased sound judgment; that his conduct was not entirely
volitional; or that his judgment and mental flexibility were
significantly impaired by organic brain damage. Nor, finally were
they ever told that Ferrell’s father was physically abusive to his
children, especially to Ferrell, waking them in the middle of the night
to beat them (sometimes after stripping them naked) with razor strops,
fan belts, and old used belts; that the family was repeatedly evicted
from their homes and hungry, and lived in fear of those to whom the
father owed gambling debts; or that Ferrell’s mother suffered from
clinical depression, suicidal ideations, rage blackouts, and urges to
physically injure her children.
Id. at 1203.

31

The evidence presented in Ferrell’s state habeas corpus proceeding included
evidence that Ferrell suffered from daily seizures, and that “the actions of an
individual with Ferrell's types of impairment “are not entirely volitional,” because
“[d]uring a complex partial seizure a person is overtaken by a powerful emotion,
usually anger or fear, by hallucinatory voices or visions, or by a vivid flashback,”
and “[s]eizures also alter the behavior which takes place between or after the
seizures, or interictally, resulting in lack of awareness, dullness, and confusion as
neurofibers in the brain readjust.” Id. at 1213. Ferrell’s original trial counsel, who
represented Ferrell briefly, testified that Ferrell’s mental health problems were
“overt and fairly apparent to anyone who cared to look closely.” Id. at 1227-28.
The investigator who was charged with collecting mitigating information regarding
Ferrell, “admitted that in preparation for trial, she had only asked statutory
character evidence questions of the potential witnesses, and only followed up with
them if they said anything positive about Ferrell.” Id. at 1216.
Ferrell’s trial counsel had obtained a mental health evaluation, but it was
limited to “whether Ferrell was retarded and whether he suffered from any
problems that would affect the waivers of Miranda rights he had signed for the
police,” and there was no diagnosis of any of Ferrell’s significant mental health

32

deficits. Id. at 1211. Ferrell’s jury also never heard any of the available
humanizing evidence, such as Ferrell’s “kind personality, strong work ethic, and
other personal characteristics.” Id. at 1220.
Unlike Ferrell, trial counsel in this case had a reasonable basis to forego a
mental health evaluation, and as will be discussed below, the mental health
evidence that Petitioner presented at the state habeas corpus proceeding is not
compelling. Moreover, while trial counsel may have interviewed mitigation
witnesses for a single day, their questioning of those eleven witnesses was
extensive – comprising some fifty-two pages of single-spaced transcript – and
provided trial counsel with sufficient information to make the reasonable strategic
decision to present the mitigation theory they ultimately used. ([19.17] at 12-64).
In questioning those witnesses, trial counsel asked (1) whether Petitioner had
ever done anything that might indicate that he might commit this type of crime; (2)
whether he took drugs or drank alcohol; (3) whether he carried knives or other
weapons; (4) what his relationship was like with his parents and his siblings; (5)
whether they felt that he needed psychiatric treatment or whether they felt
something was wrong with him; (6) whether he hated white people or was a violent
person; (7) whether Petitioner was mentally deficient. ([19-17] at 12-64). The

33

eleven witnesses were all individuals who knew Petitioner well. They included
family friends who were Petitioner’s parent’s age, as well as his peers. At least
three of them worked as mental health nurses. One, a psychiatric nurse, indicated
that she thought he needed to see a psychiatrist because he wouldn’t interact with
other children his age but would stand off by himself with a blank look on his face.
(Id. at 13-16). Trial counsel also talked to Petitioner’s high school guidance
counselor about Petitioner’s schooling. She told trial counsel that Petitioner had
trouble in school staying on task and that his behavior was distractive to other
students rather than violent, and that Petitioner had been placed in the Severe
Behavioral Handicap Unit. (Id. at 19). Other witnesses interviewed by trial
counsel stated that Petitioner got along well with his parents and that he had a good
family life. (E.g., [20.33] at 70). It is thus clear that trial counsel in this case
performed a much more thorough investigation than trial counsel in the Ferrell
case, and that their investigation was sufficient for them to make informed choices
regarding trial strategy during the penalty phase of the trail.
Petitioner next argues that trial counsel’s failure to obtain Petitioner’s school
records rendered their investigation deficient. Trial counsel, however, was aware
of Petitioner’s problems in school. According to the Georgia Supreme Court, trial

34

counsel’s file “contained the names and addresses of the schools [Petitioner]
attended and notes summarizing [Petitioner’s] school history, including that he
transferred to a different high school after ‘encounter[ing] behavior problems,’ that
he had ‘numerous suspensions’ at both schools, that he left school and moved out
of his parents’ home in October of 1990, and that he returned home a couple of
weeks later.” Sears v. Humphrey, 751 S.E.2d at 375 (quoting exhibits). Given that
trial counsel knew about Petitioner’s troubles in school, their strategic decision not
to dig deeper into Petitioner’s school records was sufficiently informed to meet the
constitutional standard.
Although trial counsel never testified that they chose not to obtain
Petitioner’s school records for strategic reasons, this Court must “presume, in
accordance with the general presumption of attorney competence, that counsel’s
actions are strategic. In the absence of any evidence to overcome the presumption,
no constitutional error is shown.” Stanley v. Zant, 697 F.2d 955, 970 (11th Cir.
1983) (“We decline to infer from such silence an absence of strategy.”).4

4

Petitioner’s habeas corpus counsel had the opportunity to question trial
counsel regarding their strategy in connection with Petitioner’s school records and
Petitioner’s background at their depositions. When Ray Gary, Jr., testified,
Petitioner’s habeas corpus counsel asked him only questions about whether he met
Petitioner’s father for the first time before the trial or during the trial and the
35

Petitioner has presented no evidence to overcome this presumption, and this Court
concludes that counsel’s conduct was not “so egregious as to raise an inference that
it could not reasonably be part of any legitimate strategy.” Id. at 969. As
discussed in the next subsection, trial counsel developed a reasonable theory for
the penalty phase, and it was thus reasonable for trial counsel to determine that
Petitioner’s school records were not pertinent to that theory.
Based on the record, the Court concludes that “fairminded jurists could
disagree on the correctness” of the Georgia Supreme Court’s conclusion that trial
counsel carried out a reasonable investigation into mitigation evidence, and relief
on this claim is precluded under § 2254(d). Harrington, 562 U.S. at 101.
e.

Trial Counsel’s Mitigation Theory was Reasonable

The Georgia Supreme Court also concluded that “trial counsel developed a
reasonable mitigation strategy that included showing the good character of
[Petitioner] and his family and the impact that a death sentence would have on his

reasons that trial counsel did not have him testify at Petitioner’s trial. ([20.35] at
46-55). When Julian Michael Treadaway testified, Petitioner’s counsel asked him
no questions. ([20.32] at 90). The affidavit of trial counsel that Petitioner
submitted in the state habeas corpus proceeding discussed only (1) the Sabel issue,
(2) trial counsel’s decision to withdraw their motion for a mental health
examination, (3) the mitigation witnesses they interviewed, and (4) their theory of
defense during the penalty phase of Petitioner’s trial. ([20.32] at 99-113).
36

family.” Sears v. Humphrey, 751 S.E.2d at 377. Petitioner contends that trial
counsel’s investigation was so inadequate that trial counsel did not have sufficient
information to reasonably decide to pursue their theory of mitigation. However,
the Court concludes that the Georgia Supreme Court’s finding that the
investigation was reasonable is entitled to deference under § 2254(d). The Court
further concludes that, given the information known to counsel, it cannot be said
that no reasonable attorney would have pursued trial counsel’s theory of
mitigation, and the Georgia Supreme Court’s conclusion regarding trial counsel’s
theory is likewise entitled to § 2254(d) deference.
The Court concludes that Petitioner has failed to demonstrate that the
Georgia Supreme Court’s conclusion that trial counsel’s performance was adequate
is not entitled to deference under § 2254(c).
f.

Prejudice
i.

Evidence Presented in the State Habeas Corpus
Proceeding

In its order affirming the denial of state habeas corpus relief, the Georgia
Supreme Court provided an in depth description of the evidence that Petitioner
introduced in the state habeas corpus proceeding. See Sears v. Humphrey, 751
S.E.2d at 380-88. That evidence concerned Petitioner’s brain damage,

37

“debilitating psychiatric symptoms,” difficult childhood, drug use, and childhood
sexual abuse.5 Petitioner contends that if this evidence had been presented to the
jury, the outcome of Petitioner’s trial would have been different.
The Court turns first to the evidence of Petitioner’s neurological and
psychological deficiencies that he introduced at the state habeas corpus hearing.
Dr. Tony Strickland, a neuropsychologist, examined Petitioner and concluded that
Petitioner has significant frontal lobe abnormalities caused by head injuries and
adolescent drug use. The abnormalities resulted in deficits in Petitioner’s ability to
control his reactions and behaviors, and to plan. ([18.27] at 6). According to Dr.
Strickland, Petitioner’s “biggest challenge is one of impulsivity, poor planning,
poor judgment and a compromise in autonomy.” ([18.25] at 43). Dr. Strickland
testified that Petitioner had “a marginal capacity for reflection and decisionmaking, particularly when faced with distracting stimuli. His ability to organize
his choices, assign them relative weight and select among them in a deliberate way
is grossly impaired. He instead reacts to problems impulsively and becomes
disorganized and confused.” ([18.27] at 8).

5

Petitioner also presented evidence in the state habeas corpus proceeding
regarding his unusual behavior as a child that he did not raise in his final brief
before this Court.
38

Dr. Richard G. Dudley, Jr., a psychiatrist, also examined Petitioner. Dr.
Dudley concluded that his “assessment established a picture of [Petitioner] as
severely compromised in his capacity for sound decision-making and reasoned
behavior.” ([18-28] at 31). Specifically, Dr. Dudley concluded that Petitioner
“exhibits extreme impulsivity, drastically impaired executive functioning,
inappropriate affect, mood disturbance and grandiose thinking that is so severe that
his contact with reality is at times tenuous.” (Id.). According to Dr. Dudley,
Petitioner is “substantially disabled under the best of circumstances,” and that with
the addition of stress, his “functioning rapidly decompensates even further and
purposeful behavior all but ceases.” (Id. at 59). Dr. Dudley stated that in his
“professional opinion . . . [Petitioner]’s specific psychiatric, emotional and
cognitive disturbances directly lead [sic] to the events of that weekend careening
beyond his control.” (Id. at 62-63).
Regarding Petitioner’s childhood, Petitioner introduced evidence at the state
habeas corpus hearing regarding the dysfunction in his immediate family.
According to this evidence, Petitioner’s parents argued frequently, and these
disagreements occasionally became physical. Petitioner portrays his parents’
physical fights as frequent, but he mentions only two instances where the children

39

witnessed a physical altercation. On one occasion, Petitioner’s father dragged
Petitioner’s mother by the hair. ([19.9] at 31). On the other occasion, Petitioner’s
parents were engaged in an argument when Petitioner’s father “just snapped.” He
“came at” Petitioner’s mother, and she screamed at Petitioner’s brother to bring her
a knife which the brother did. (Id. at 58). Petitioner’s evidence further indicates
that his parents often demeaned each other and that his mother cheated on his
father.
As to Petitioner’s treatment by his parents, Petitioner’s mother is portrayed
as being distant and uninterested in her children, especially Petitioner. When she
felt that the children were bothering her, she would beat and verbally abuse them.
([18.28] at 51). Some witnesses noted that Petitioner’s mother openly favored
Petitioner’s brother. (Id. at 53).
Petitioner’s father, who was wheelchair-bound as the result of an accident6
while he was in the Army, was more engaged, but according to Petitioner’s
evidence, his attention to him was negative. He beat the children and used
disciplinary practices that were borrowed from his military service. After
Petitioner and his brother broke a window, their father made them dig a hole in the
6

The record is unclear as to whether Petitioner’s father was injured in a
helicopter accident or a skydiving accident.
40

back yard that was big enough to bury the window. (Id. at 48). Petitioner’s father
was also particularly critical of Petitioner, and when Petitioner failed to meet his
unrealistic expectations, he would openly criticize him. (Id. at 49-50).
Petitioner also introduced evidence that he was sexually abused by an older
cousin. According to Petitioner’s brother, the cousin liked to take the younger
children into a closet and try to rub their genitals or grind his genitals on them.
([18.28] at 45). Petitioner’s brother never saw the cousin molest Petitioner, but he
claimed that he saw the cousin take Petitioner into the closet. (Id. at 46).
Petitioner himself has never claimed that he was sexually abused, but one witness
testified that while he was smoking “weed” with Petitioner, Petitioner told him that
“someone” had “molested” him and his brother when they were young but did not
provide any further details. Sears v. Humphrey, 751 S.E.2d at 385.
ii.

The Georgia Supreme Court’s Prejudice Analysis

In weighing the mitigation evidence that Petitioner presented in the state
habeas corpus proceeding, the Georgia Supreme Court first pointed out that it
agreed with the Butts County Superior Court’s conclusion that much of the
evidence that Petitioner presented was unreliable. The affidavits Petitioner
submitted “‘contained a great deal of hearsay and speculation testimony, which

41

would have not been allowed before the jury,’” Id. at 380 (quoting the state habeas
corpus court), and the affidavit testimony on which the mental health experts relied
was weak. Id.
Regarding Petitioner’s social history and family background testimony, the
Georgia Supreme Court found that much of that evidence would not have been
admissible or relevant. Id. at 381. Of the admissible evidence, the court concluded
that much of it was inconsistent. For example, Petitioner’s evidence of
maltreatment by his parents was countered by other evidence that indicated that
“both parents were involved with their children and attempted to provide the best
for them,” and that Petitioner’s father, in particular, worked hard to make
Petitioner a better person. Id. at 384.
The state court further concluded that Petitioner’s evidence of his
dysfunctional family pales in comparison to the type of dysfunction evidence the
omission of which the United States Supreme Court has found prejudicial.
“In any event, all of the family dysfunction testimony, even taken
together and credited as true, is weak and a far cry from the horrific
childhood circumstances that have been held sufficient to satisfy the
prejudice prong in a capital case.” DeYoung v. Schofield, 609 F.3d
1260, 1291 (11th Cir. 2010) (finding that the defendant was not
prejudiced by the omission of mitigating evidence that included
testimony that his father was “hyperrational, judgmental,
authoritarian, obsessive, and emotionally distant” and that his parents

42

“showed [him] little affection”). Compare Rompilla v. Beard, 545
U.S. 374, 391-92 (2005) (stating that omitted mitigating evidence
included evidence that the petitioner’s parents were alcoholics; that
his father frequently beat his mother, bragged about his infidelity, beat
the petitioner, and locked him in an excrement-filled dog pen; and that
the petitioner slept in an unheated attic and went to school in rags);
Wiggins, 539 U.S. at 534-35 (noting omitted mitigating evidence,
inter alia, of “severe privation and abuse in the first six years of . . .
life” and “physical torment, sexual molestation, and repeated rape
during . . . subsequent years in foster care”); Williams, 529 U.S. at
395 (finding that omitted mitigating evidence of defendant’s
“nightmarish childhood” included his parents’ imprisonment for
criminal neglect of him and his siblings, his severe and frequent
beatings by his father, and his commitment to an abusive foster
home). Thus, we conclude that trial counsel’s failure to present
[Petitioner’s] new evidence about his allegedly damaging home
environment did not result in prejudice sufficient to support the
success of his overall ineffective assistance of trial counsel claim.
Id. at 384-85.
With respect to Petitioner’s evidence that he was sexually abused, the
Georgia Supreme Court noted that the only evidence that Petitioner himself ever
claimed that he was abused was the hearsay affidavit testimony of another witness.
The remaining evidence was all based on the claims made by Petitioner’s brother,
Demetrius. With regard to that evidence, the Georgia Supreme Court concluded:
[T]his evidence would have carried little weight with the jury for
several reasons. Regarding Demetrius’ testimony, we conclude that
the jury would not have found it very persuasive, considering its
equivocal nature, Demetrius’ obvious interest in his brother’s case,
and, . . . the fact that he was subject to impeachment based on his

43

prior felony convictions. As to [another witness]’s hearsay affidavit
testimony, he testified that he had only known [Petitioner] for a
relatively short period of time when he and [Petitioner] began to get
“high” together on “weed” every morning and that it was during one
of their conversations while they were “hanging out” that [Petitioner]
told him only that “someone” had “molested” him and Demetrius
when they were young without providing any further details. Thus,
[Petitioner] failed to show that this testimony is anything other than
unreliable hearsay. See Gissendaner v. State, 532 S.E.2d 677 (Ga.
2000) (holding that the rules of evidence are not suspended in the
sentencing phase but that they may, under proper circumstances, yield
to the need to present reliable mitigating evidence). Most
significantly, [Petitioner] did not report that he had ever been sexually
abused to either of the habeas mental health experts who examined
him, and, as Dr. Strickland noted in his report and affirmed through
his affidavit, [Petitioner] denied any sexual abuse to the mental health
professionals treating him at the Georgia Diagnostic and
Classification Center. Thus, we conclude that the omission of the
weak evidence submitted in the habeas proceedings that [Petitioner]
was sexually abused as a child did not result in prejudice sufficient to
support the success of his overall ineffective assistance of trial counsel
claim.
Id. at 385.
After reviewing the mental health evidence that Petitioner presented at the
state habeas corpus proceeding, the Georgia Supreme Court held:
While the testimony that [Petitioner] suffers from some brain
impairment and mental health problems is uncontroverted and
certainly has potential mitigating value, we conclude that he was not
prejudiced by the omission of this evidence at trial for the following
reasons: (1) the weakness of much of the evidence upon which
[Petitioner’s] mental health experts relied to support their testimony
and diagnoses; (2) the aggravating potential of this evidence; (3) the

44

testimony’s inconsistency with the evidence at trial; and (4) the
strength of the aggravating circumstances in [Petitioner’s] case.
Id. at 388.
The state court pointed out that, in making his diagnoses, Dr. Strickland
relied in part on Petitioner’s history of brain trauma and the substance-induced
changes in brain function that accompany cocaine abuse. Id. at 389. The court
then noted:
the only records of medical treatment received by [Petitioner] before
his incarceration that are in the record concern his burned hand at age
15, and Dr. Strickland reported that [Petitioner] told him that this was
the only occasion that he had ever been hospitalized. Thus, Dr.
Strickland testified, he relied on [Petitioner’s] self-reporting, family
affidavits, and the fact that [Petitioner] has two scars on his head to
verify his history of head injuries.
Id.
The Georgia Supreme Court acknowledged that Petitioner had provided
evidence that he had suffered from head injuries, but found that the Butts County
Superior Court
was authorized to consider the evidence upon which Dr. Strickland’s
opinion was based and, specifically, to consider that [Petitioner]
submitted no medical records to verify the severity of these head
injuries or to show whether [Petitioner] could have possibly suffered
brain injuries as a result of these head injuries. See Windom v. Sec’y,
Dept. of Corr., 578 F.3d 1227, 1249 (11th Cir. 2009) (finding it
unlikely that a death row petitioner’s expert testimony “would have
had much impact on the [sentencer’s] choice of sentence” considering,
45

among other things, that the opinions “lacked a medically verifiable
foundation, e.g., hospital records confirming that [the petitioner] in
fact suffered head trauma leading to brain damage”).
Id.
The Georgia Supreme Court further noted that Dr. Strickland relied on
Petitioner’s “significant” history of drug abuse, but pointed out that
Dr. Strickland acknowledged that he relied upon [Petitioner’s] selfreporting for the information that he had a “significant history of
marijuana and cocaine use that began at [ages] 12 to 13 and increased
in its intensity through ages 14 to 18 up to incarceration” and that he
did not review any documents or interview anyone who corroborated
[Petitioner’s] account. At trial, the State would certainly have
challenged Dr. Strickland’s diagnosis, given the fact that there was no
testimony that [Petitioner] ever used cocaine or that his marijuana use
began before the age of 16. See Humphrey v. Nance, 744 S.E.2d 706
(2013) (finding it reasonable to conclude that an expert’s testimony
had been discredited, where the State “challenged the source and
veracity of several alleged events in [the defendant]’s history” that the
expert relied on to form his diagnoses based on the lack of testimony,
or on “arguably contradictory testimony,” regarding the alleged
events).
Id.
With respect to Dr. Dudley’s diagnosis, the Georgia Supreme Court pointed
out that he relied on Petitioner’s parents’ psychological and physical abuse in
determining that Petitioner suffered from self-esteem and abandonment issues, and
noted that

46

[t]he evidence regarding [Petitioner’s] parents’ verbal and physical
abuse of him is hardly compelling. Moreover, the presentation of
testimony that [Petitioner’s] parents’ “abandonment” and abuse were
responsible for his “profound” personality disorder and that his own
voluntary drug use was partly responsible for his brain damage and
cognitive deficiencies would have negated or displaced the strong
testimony that trial counsel presented at trial regarding the good
character of [Petitioner] and his family. See Cannon v. Gibson, 259
F.3d 1253, 1277-78 (10th Cir. 2001) (finding that a death row
petitioner was not prejudiced by the omission of mitigating evidence
of his “serious brain damage” and lack of impulse control, where such
evidence would have “negated” or “displaced . . . the mitigation
evidence actually adduced at trial” that portrayed him as a “kind,
compliant, and responsible individual whose involvement in the
murder was an aberration”).
Id. at 389-90.
Regarding Dr. Dudley’s diagnosis, the Georgia Supreme Court further
concluded that the Butts County Superior Court finding that Dr. Dudley admitted
that Petitioner would not discuss the facts of the crime with him is not clearly
erroneous. The Georgia Supreme Court noted that Dr. Dudley admitted in his
testimony that “he and [Petitioner] did not talk ‘that much’ about that trip or the
facts of the crime,” that Petitioner “‘was unclear about the rape,”” and that
Petitioner “‘didn’t want to talk about’” the murder. Id. As a result, the Georgia
Supreme Court concluded that “this testimony would discredit Dr. Dudley’s

47

opinion that [Petitioner’s] deficits were responsible for his behavior at that time.”
Id.
The Georgia Supreme Court also pointed out that Petitioner’s school records
indicated that he was of average intelligence and that his troubles in school were
caused by Petitioner not working hard enough, not behaving, and not taking
responsibility for the organization of his school work. Id. Accordingly, the court
held, Drs. Dudley’s and Strickland’s claim that Petitioner suffered from significant
mental deficits from an early age was unsupported. Id. at 390-91.
In summarizing its view of the mental health evidence, the Georgia Supreme
Court stated:
In light of the guilt/innocence phase evidence that [Petitioner]
committed four violent capital felonies in quick succession and the
sentencing phase evidence that the commanding officer at the Cobb
County detention center could not recall an inmate in his 17 years of
experience who had caused more trouble than [Petitioner] . . . a
reasonable jury could have viewed evidence that [Petitioner] suffers
from frontal lobe damage as aggravating. See Martinez v. Dretke, 404
F.3d 878, 889-890 (5th Cir. 2005) (stating that “evidence of organic
brain injury presents a ‘double-edged’ sword” because of its
association with poor impulse control and a violent propensity and,
thus, future dangerousness). Moreover, this evidence could have been
used by the prosecuting attorney to support his sentencing phase
closing argument that [Petitioner] was “a Defendant out of control”
who “cannot comply with the rules of a community” or “a structured
. . . pretrial detention center.”

48

....
Given the fact that, [at the time of the trial, Petitioner] was apparently
three years removed from any substance use and yet, according to . . .
testimony, was still exhibiting bad behavior in a structured and
controlled environment [in jail], we conclude that the jury would not
find very persuasive Dr. Strickland’s opinion that [Petitioner’s]
behavior would improve once he was “far removed from the
substance use.” Moreover, the basis that Dr. Strickland offered for his
opinion at the habeas proceeding, a history that did not reveal “a
pattern of problems and difficulties” within the highly controlled and
monitored environment of death row, did not even exist at the time of
trial.
Furthermore, we conclude that a jury would likely have found Dr.
Strickland’s testimony that [Petitioner] exhibited a “a narcissistic sort
of grandiosity” to be aggravating.
Id. at 391-92.
The Georgia Supreme Court next pointed out that Drs. Strickland’s and
Dudley’s testimony was contradicted by the evidence presented at Petitioner’s trial
that, on the day of the crimes, Petitioner was clearly the leader:
[A]ll four witnesses who encountered [Petitioner] and Williams on the
day of Wilbur’s abduction, including three Waffle House customers
and a police officer, testified that [Petitioner] did “all the talking”; all
three Waffle House customers testified that [Petitioner] alone had
control of the briefcase containing knives, brass knuckles, and a set of
handcuffs; [Petitioner] led police to the discovery of the brass
knuckles on his bedroom closet shelf and the briefcase containing
knives under his bed; [Petitioner] alone raped Wilbur with no
encouragement or assistance from Williams; and [Petitioner] alone
murdered Wilbur without encouragement or assistance from Williams.

49

Id. at 393.
The Georgia Supreme Court further pointed out, in a detailed description of
Petitioner’s crimes, that Petitioner clearly demonstrated careful planning and that
he committed his crimes in a deliberate and calculated manner. Id. at 393-94.
“Thus, the jury could reasonably have concluded that the evidence depicted a man
capable of planning and executing criminal acts and willing to victimize anyone
who would get in his way, which would have been more than sufficient to lead a
reasonable jury to find the testimony of Drs. Strickland and Dudley unpersuasive.”
Id. at 394-95 (quotation alteration and citation omitted).
Also with respect to Petitioner’s claim of drug abuse, the Georgia Supreme
Court first pointed out that trial counsel unquestionably knew about Petitioner’s
drug use because they argued that Petitioner’s admission to police was made while
Petitioner was under the influence of drugs. Id. at 386. The court further found
that Petitioner’s evidence presented in the state habeas corpus court supported only
the fact that he smoked marijuana beginning at age sixteen – not at an extremely
young age – and it did not “show that he ever used cocaine.” Id. at 387. Because
evidence of Petitioner’s drug use would have negated trial counsel’s mitigation
strategy of showing Petitioner’s good character, the Georgia Supreme Court

50

concluded that the jury would not have found the evidence of Petitioner’s drug use
to be “significantly mitigating.” Id.
Finally, the Georgia Supreme Court weighed the mitigating evidence against
the aggravating evidence presented at Petitioner’s trial to determine “whether ‘the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’” Id. at 395 (quoting Strickland, 466 U.S. at
695). Based on its analysis, the court concluded that “considering all of the expert
mental health and lay witness testimony that [Petitioner] presented in his habeas
proceeding along with the mitigating evidence actually presented at trial, we still
conclude that the new mitigating evidence presented in the habeas proceedings
would not in reasonable probability have resulted in a different sentencing verdict
for [Petitioner’s] brutal crime.” Id. (citing to Sochor v. Sec’y, Dept. of Corr.,
685 F.3d 1016, 1030 (11th Cir. 2012) for the proposition that it is difficult to show
“prejudice as the result of failing to present mitigating evidence in a death penalty
case involving a murder ‘accompanied by torture, rape or kidnapping’”).
iii.

The State Court Opinion is Entitled to Deference

Petitioner contends that the Georgia Supreme Court did not conduct a
reasonable analysis of the evidence of Petitioner’s background because the “court

51

focused upon the strength of the mitigating factors presented at trial, and the
purported reasonableness of that theory, while discounting the weight that
reasonable jurors would give to the evidence of [Petitioner’s] troubled upbringing,
particularly in light of the challenges presented by his brain damage and mental
illness.” ([60] at 117). Petitioner contends that this was unreasonable because it
focused “on the reasonableness of a strategy that was unsupported by a proper
investigation.” (Id.) However, the Georgia Supreme Court concluded that trial
counsel’s investigation was sufficient and this Court determined that this
conclusion was not unreasonable.
Petitioner then repeated his family history and background evidence at
length, (compare id. at 39-43 with id. at 118-125), before contending that the
Georgia Supreme Court made four errors:
(1) The court repeatedly compared the habeas evidence to the trial
evidence arrived at after trial counsel’s less than thorough
investigation, rather than weighing the newly presented evidence
together with the trial evidence. (2) The court failed to account for the
way in which the family background evidence would have undercut
one of the State’s principle arguments in aggravation. (3) The court
placed undue reliance on the fact that some of the new mitigation
evidence also revealed unflattering information. And (4) the court
wrongly concluded that a large portion of the evidence would not
have been admitted at trial.
([60] at 125-26).

52

Petitioner’s first enumerated error rests partially on the notion that trial
counsel’s investigation was inadequate, an argument already rejected by this Court.
Petitioner further argues that, under Strickland, reviewing courts must “consider
‘the totality of the available . . . evidence – both that adduced at trial and that
adduced in the habeas proceeding’ – and ‘reweig[h] it against the evidence in
aggravation.’” Porter v. McCollum, 558 U.S. 30, 41 (2009) (citing Williams,
529 U.S. at 397-98). According to Petitioner, the Georgia Supreme Court did not
properly apply this standard because the court “repeatedly weighed the habeas
evidence against the trial evidence.” ([60] at 127). Petitioner does not, however,
explain how he thinks that the Georgia Supreme Court weighed the evidence
incorrectly. Rather, Petitioner cites to portions of the Georgia Supreme Court’s
opinion, Sears v. Humphrey, 751 S.E.2d at 383-84, 386, in which the court merely
points out the weaknesses of the evidence that Petitioner presented in the state
habeas corpus proceeding. Nowhere does it appear that the Georgia Supreme
Court improperly applied the Strickland standard. In discussing the Strickland
standard for evaluating prejudice, the Georgia Supreme Court stated that it “must
consider the totality of the available mitigating evidence in reweighing it against
the evidence in aggravation, while being mindful that a verdict or conclusion with

53

overwhelming record support is less likely to have been affected by errors than one
that is only weakly supported by the record.” Id. at 377 (citing Williams, 529 U.S.
at 397-98 and Strickland, 466 U.S. at 696). After careful review of the Georgia
Supreme Court’s opinion, the Court concludes that the court correctly applied the
Strickland standard.
Petitioner’s second enumerated error that the Georgia Supreme Court did not
account “for the way in which the family background evidence would have
undercut one of the State’s principle arguments in aggravation,” overlooks the state
court’s exhaustive analysis of that issue. The “State’s principle argument” to
which Petitioner refers is the prosecution argument that Petitioner was not a
“deprived child from an inner city, a person who[m] society has turned its back on,
.

. [b]ut . . . a person privileged in every way.” Sears v. Upton, 561 U.S. at 947;

([60] at 130-31). Petitioner contends that the family background evidence that he
presented at the state habeas corpus hearing establishes that the state’s argument
was wrong, and that Petitioner’s family life was dysfunctional, chaotic and violent.
Petitioner further contends that the Georgia Supreme Court did not properly
evaluate how his family background evidence would have undercut the state’s
argument. The Georgia Supreme Court explained, however, that Petitioner’s

54

evidence did not decisively undercut the prosecution argument. According to the
court:
[Petitioner’s father,] Mr. Sears testified in the habeas proceeding that
he had “tried to influence [his] children to adopt a strong work ethic,”
that he had “attempted to show [his children] by example how to
provide for a family,” that he had used the disciplinary methods that
he had learned in the military in that he had rewarded [Petitioner] for
good behavior and withheld privileges for bad behavior, and that he
had sometimes used a belt for punishment but that the mere threat of
physical punishment had often been sufficient. Mr. Sears lamented
that, “[i]n retrospect, [his] discipline approach [had] failed,” and he
admitted that he was “still perplexed as to what discipline would
[have] work[ed] with [Petitioner].” Mr. Sears also testified that he had
had a conversation with Sears about his goals and purpose in life
approximately a year prior to his arrest and that [Petitioner] had told
him that he just wanted to use people and that he had no interest in
working, and Mr. Sears testified that there was nothing that he could
do to motivate [Petitioner] to work either at home or at an outside job,
which “frustrated and baffled [him].” The jury could have reasonably
concluded from this testimony that Mr. Sears cared about Sears and
that his approach to discipline, while stern, was not so unreasonable
that it significantly mitigated [Petitioner’s] moral culpability for his
horrendous acts.
Moreover, some of the testimony showed that, while [Petitioner’s]
parents may have had different child-rearing philosophies and may
have lacked some parenting skills, both parents were involved with
their children and attempted to provide the best for them, as it showed
that [Petitioner’s] parents took an active part in his education,
involved him in extracurricular activities, participated in extended
family activities, and ensured that he attended school regularly at least
until he turned 18. Affiants also stated that, despite being in a
wheelchair, [Petitioner’s] father was independent, tried to teach his
sons to be independent, spent time with them fishing and playing

55

basketball, and worked with [Petitioner] to help him excel in sports
and outdoor activities. Ms. Sears testified that Mr. Sears made his
sons lift heavy weights when they were little “[not] because he was
mean, but in order to make them better prepared for life.” Although
Demetrius testified that he could not recall his father’s ever hugging
him or [Petitioner], telling either of them that he loved them, or
complimenting them, he also stated that his father thought that the
way to demonstrate his love for them “was to toughen [them] up.”
The prosecuting attorney could have used this testimony in
conjunction with the testimony that Mr. Sears was a good provider
and spent time with [Petitioner] to argue that [Petitioner’s] father did
love and care for him but simply did not express it in a demonstrative
way.
In addition, much of the testimony submitted in the habeas proceeding
is not entirely favorable to [Petitioner], as it depicts his childhood as
being one of privilege and permissiveness. [Petitioner’s] aunt testified
that [Petitioner’s] parents gave their children too many material things
and too many privileges. Other affiants testified that [Petitioner’s]
family had “a big house with a swimming pool and two cars,” that the
boys were always well-dressed, and that the Sears children had
allowances bigger than any other child in the neighborhood. This
testimony would have further supported the prosecuting attorney’s
argument at trial that, in [Petitioner], “we have a person, privileged in
every way, who has rejected every opportunity that was afforded
him.”
Sears v. Humphrey, 751 S.E.2d at 383-84.
The evidence Petitioner introduced at the state habeas corpus proceeding
was, at best, equivocal in blunting the prosecution argument that Petitioner had led
a privileged life. Petitioner argues that “reasonable jurors . . . may have concluded
that the emotional support, stability, and acceptance that [Petitioner] was denied

56

were more important than the material comforts that he was provided” and that the
jurors might have concluded that Petitioner’s parents damaged Petitioner “despite
their best intentions.” ([60] at 133-34). Those arguments, however, merely offer
an alternative view of the evidence rather than establish that the Georgia Supreme
Court’s conclusion was unreasonable.
The Court also disagrees with Petitioner’s third enumerated error, that the
Georgia Supreme Court overly relied on its finding that Petitioner’s new mitigation
evidence also revealed unflattering information. The state court exhaustively
reviewed all of the evidence that Petitioner presented in the habeas corpus
proceeding. As discussed above, the court found that some of the evidence was
not reliable, some of the evidence was weak or unconvincing, and some of it was
flatly inconsistent with other evidence. Contrary to Petitioner’s argument, this case
is not similar to Porter v. McCollum, 558 U.S. 30 (2009), where the Supreme
Court held that the state court improperly discounted significant mitigating
evidence presented in post-conviction proceedings. In Porter, the petitioner’s trial
counsel put up scant evidence during the penalty phase of the trial, limited to
“inconsistent testimony about Porter’s behavior when intoxicated and testimony
that Porter had a good relationship with his son.” Id. at 32. In his post-conviction

57

hearing, however, Porter presented evidence that he was a war hero in the Korean
War where he was twice wounded, that he suffered from severe post traumatic
stress disorder and other significant mental deficiencies that were only partly
disputed by the state, and that he suffered through an abusive childhood that was
significantly worse than that described by Petitioner in this case. Id. at 33-34.
In contrast, as this Court has found, Petitioner’s trial counsel developed a
reasonable trial strategy based on their adequate investigation and presented
adequate evidence in support of that strategy. See Harrington, 562 U.S. at 110
(“Strickland does not guarantee perfect representation, only a reasonably
competent attorney.”) (quotations and citations omitted). While Petitioner did
present evidence at the state habeas corpus hearing that could well be considered
mitigating, that evidence was not so compelling that only an incompetent attorney
would fail to present it.
In his final argument regarding the Georgia Supreme Court’s treatment of
his family background and social history evidence, Petitioner complains that the
court wrongly concluded that a large portion of the evidence would not have been
admitted at trial. However, while the Georgia Supreme Court did state that some
of Petitioner’s evidence was inadmissible, Sears v. Humphrey, 751 S.E.2d at 381,

58

it did not identify that evidence, and it provided a lengthy description of admissible
mitigating evidence, id. at 381-87, similar to Petitioner’s own narrative of his
family background and social history. As a result, it appears that the Georgia
Supreme Court considered most of the evidence that Petitioner presented in the
state habeas corpus proceeding. While “the hearsay rule may not be applied
mechanistically to defeat the ends of justice,” Chambers v. Mississippi, 410 U.S.
284, 302, (1973), Petitioner offers no example of reliable hearsay evidence that the
Georgia Supreme Court failed to consider.7

7

This is not a case like Green v. Georgia, 442 U.S. 95, 97 (1979), cited by
Petitioner ([60] at 140), where “substantial reasons existed to assume [hearsay
evidence] reliability.” In Green, the trial court refused to allow introduction of
hearsay evidence that petitioner’s co-defendant, Moore, confessed to killing the
victim after ordering petitioner to run an errand. The Supreme Court considered
this hearsay evidence reliable because:
Moore made his statement spontaneously to a close friend. The
evidence corroborating the confession was ample, and indeed
sufficient to procure a conviction of Moore and a capital sentence.
The statement was against interest, and there was no reason to believe
that Moore had any ulterior motive in making it. Perhaps most
important, the State considered the testimony sufficiently reliable to
use it against Moore, and to base a sentence of death upon it.
Green, 442 U.S. at 97. None of the hearsay evidence here is supported by similar
indicia of reliability.

59

Petitioner instead challenges the Georgia Supreme Court’s conclusion that
Petitioner’s evidence of childhood sexual abuse was unreliable and “weak.” The
Court concludes, however, that, at worst, fairminded jurists would disagree over
the question of whether the record supports the state court’s finding that ample
reasons existed for the jury to find Petitioner’s sexual abuse evidence
unpersuasive. As the state court noted, Petitioner’s brother, who provided the bulk
of this evidence, was clearly an interested witness, he never actually saw Petitioner
being molested, and his testimony was subject to impeachment based on his prior
felony convictions. Sears v. Humphrey, 751 S.E.2d at 385. The Court further
agrees with the state court that the jury likely would have discounted the hearsay
testimony of Petitioner’s friend that Petitioner had told him of abuse while they
were smoking “weed.” It is also highly significant, as the Georgia Supreme Court
noted, that Petitioner himself denied to mental health professionals that he had ever
been molested. Id.; see Henyard v. McDonough, 459 F.3d 1217, 1245 (11th
Cir. 2006) (denying ineffective assistance claim for failure to uncover evidence of
sexual abuse in childhood where the defendant denied a history of sexual abuse).
Petitioner challenges a number of Georgia Supreme Court findings as
unreasonable in arguing that § 2254(d) deference should not be accorded to the

60

court’s conclusion that Petitioner’s mental health evidence failed to establish
prejudice under Strickland. Petitioner claims that the state court’s finding that Dr.
Strickland’s head injury findings were undermined because “[P]etitioner submitted
no medical records to verify the severity of these [childhood] head injuries or to
show whether [Petitioner] could have possibly suffered brain injuries as a result of
these head injuries.” ([60] at 95, citing Sears v. Humphrey, 751 S.E.2d at 388).
Petitioner further argues that Dr. Dudley’s failure to discuss the crimes with
Petitioner cast doubt on the expert’s conclusion that Petitioner’s deficits were
responsible for his behavior. ([60] at 101-02).
The Georgia Supreme Court’s criticisms of the opinions offered by Drs.
Strickland and Dudley constitute a reasonable evidentiary assessment of the mental
health evidence presented by Petitioner. While those criticisms alone may not
justify a finding that Petitioner’s mental health evidence failed to establish
prejudice, the Georgia Supreme Court based its lack of prejudice determination on
additional substantial reasons that Petitioner failed to effectively dispute.
Petitioner claims that the Georgia Supreme Court erred in questioning the
evidence of Petitioner’s early-age drug use that Dr. Strickland relied on in
determining that Petitioner had damaged the frontal lobe of his brain. The state

61

court, however, carefully examined the evidence presented in the state habeas
corpus proceeding and found that there was no evidence supporting Petitioner’s
contention that he used cocaine and the court further found that Petitioner’s
marijuana use did not start until he was sixteen. Sears v. Humphrey, 751 S.E.2d
at 387.
Petitioner disagrees with the Georgia Supreme Court’s conclusion that
Petitioner’s evidence of frontal lobe damage and grandiosity would be seen as
aggravating by the jury, arguing that the conclusion is unreasonable. Petitioner
fails, however, to explain why that conclusion is unreasonable other than citing to
the United States Supreme Court opinion’s statement that the evidence “might well
have helped the jury understand [Petitioner], and his horrendous acts – especially
in light of his purportedly stable upbringing.” ([60] at 108, citing Sears v. Upton,
561 U.S. at 951). While that evidence might have been helpful, it might also have
convinced the jury that Petitioner is incorrigible. The Eleventh Circuit has “often
acknowledged that juries may infer that a defendant’s . . . impulsive behavior that
is triggered by organic brain damage is aggravating.” Lance v. Warden, Georgia
Diagnostic Prison, 706 Fed. Appx. 565, 573 (11th Cir. 2017) (citing Rhode v. Hall,
582 F.3d 1273, 1285-86 (11th Cir. 2009) (“Counsel reasonably believed that the

62

jury would see Rhode’s impulsive behavior, which more than one expert believed
was triggered by his organic brain damage, as aggravating.”). Accordingly, no
basis exists to conclude under § 2254(d) that the state court’s conclusion was
unreasonable.
Petitioner similarly fails to demonstrate the unreasonableness of the state
court’s conclusion that the evidence presented at trial would have rendered the
experts’ opinions unpersuasive. As discussed above, the experts testified that
Petitioner suffered from “profoundly debilitating” cognitive and emotional
impairment; that his “biggest challenge is one of impulsivity, poor planning, poor
judgment and a compromise in autonomy;” ([18.25] at 43), that his capacity for
sound decision making and reasoned behavior was severely compromised; and that
his “contact with reality is at times tenuous,” ([18.28] at 31).
The Georgia Supreme Court addressed countervailing evidence at
Petitioner’s trial:
Williams, who knew how to hot-wire an automobile, had suggested
that they . . . steal an unoccupied automobile in order to travel home
to Ohio. However, [Petitioner] had deliberately rejected [that option]
and had told Williams that they were going to wait until dark to take a
vehicle. Then [Petitioner], who was over six feet tall, patiently waited
until Wilbur drove into the Kroger parking lot and selected her – a
five feet four inch 59-year- old wife and mother weighing less than
125 pounds – as his victim because her automobile appeared capable

63

of making the trip back to Ohio. He watched Wilbur enter the grocery
store and, while she purchased her groceries, he prepared for her
abduction and eventual rape and murder by removing from his
briefcase a set of brass knuckles, a pair of handcuffs, and a knife with
its accompanying holster, which he put around his belt. While
waiting, he also had Williams exchange coats with him, which
enabled him to avoid the possibility that any witnesses who happened
to see his brutal attack of Wilbur in the parking lot would later
describe her attacker as wearing a coat like the distinctive “Raiders’
jacket” that several witnesses had seen him wearing earlier that day
and also enabled him to later tell the police that Williams had access
to his brass knuckles because they were in the pocket of his coat that
Williams was wearing. He also put on gloves, which he would wear
during the entire time that he was inside Wilbur’s automobile, thereby
preventing the police from connecting him with the vehicle through
fingerprints.
After watching Wilbur come out of the store, put her groceries in the
trunk, replace her cart, and put her key in her automobile’s door lock,
[Petitioner] assaulted her about the face and head with the brass
knuckles as she entered the automobile, knocking her to the ground.
Despite Wilbur’s desperate attempts to escape, including screaming
for help and attempting to climb onto the vehicle’s hood, [Petitioner]
shoved her, bleeding and injured, inside the automobile and picked up
Williams, who drove while he pulled Wilbur into the back seat and
bound her hands “directly” behind her back with a set of handcuffs
that he knew had no key. [Petitioner] went through Wilbur’s purse,
taking her money to purchase gasoline for the trip and fast food for
himself and Williams. For a significant portion of the trip, including
before entering the gas station and driving through the fast food
restaurant, he made Wilbur lie wedged face down on the floorboard
between the front and rear seats, covered with overcoats and book
bags, and he threatened to kill her if she made a sound. An hour into
the abduction, [Petitioner] again climbed into the back seat area with
the victim, tore most of the clothing she was wearing off of her, raped
her, and then threw her clothing out the window.

64

Once they reached a deserted stretch of highway in Kentucky, he told
Williams to pull over and Wilbur to get out of the automobile. When
Wilbur begged to remain inside, [Petitioner] told her that he was
going to let her go and walked her sixty feet from the highway, down
an embankment, and into shoulder-high grass, where he made her get
down on the ground while she repeatedly pleaded for her life. Then,
taking the knife that he had strapped to his belt prior to her abduction
more than five hours earlier, he stabbed her at least twice in the neck,
striking a vertebra. Leaving her partially nude body lying where it
was not likely to be quickly discovered, he went back to Wilbur’s
automobile and told Williams that he would drive the rest of the way
home, and he “flung” the knife and its holster out the window
sometime “through the course of that night.” Before abandoning
Wilbur’s automobile the following morning when it became disabled,
he and Williams removed all items connected to them and Wilbur’s
purse, which they threw in a dumpster. After his arrest and before
making a statement to police, he asked two different officers what was
“the maximum penalty time . . . for these things,” and he told police in
his statement that he “knew [his] time was coming,” that “[he] did
what [he] did,” and that he was “about to pay [his] consequences.”
Sears v. Humphrey, 751 S.E.2d at 393-94.
The Court agrees with the Georgia Supreme Court that these are not the
actions of an individual suffering from profoundly debilitating cognitive and
emotional impairment manifested in poor planning and a compromise in
autonomy, and the jury would have very likely questioned the reliability of the
experts’ diagnoses. At the least, the Georgia Supreme Court’s conclusion that
“[t]he testimony of Drs. Strickland and Dudley loses much of its impact when

65

viewed together with the evidence presented at trial,” Sears v. Humphrey, 751
S.E.2d at 393, is not objectively unreasonable.
Petitioner characterizes the Georgia Supreme Court’s analysis of
countervailing evidence as principally relying on the contested testimony of
Williams. Petitioner maintains:
The court’s premise relies principally on the testimony of Williams,
who was the only eyewitness to the crime. The only evidence of Mr.
Sears “planning” the kidnapping is Williams’ testimony that Sears
rejected his proposal to hotwire a car, and instead carefully selected
the victim, armed himself with a knife and brass knuckles, then lay in
wait for the victim to exit the Kroger and put her key in the vehicle.
But that testimony was hotly disputed at trial.
([60] at 109).
Petitioner overlooks that Petitioner’s own confession to police fully supports
most of the state court’s lengthy narrative of Petitioner’s actions that undercut the
testimony of Drs. Strickland and Dudley. In that confession, Petitioner admitted
that he (1) put handcuffs on Ms. Wilbur, (2) raped and murdered her, (3) wore
gloves, (4) changed coats with Williams, (5) threw Ms. Wilbur’s clothes and the
knife out the window, and (6) threw Ms. Wilbur’s purse away. ([15.18] at 68-73,
83-84, 87-89). Moreover, as explained below, see infra § III.A.3, the jury may

66

well have believed Petitioner’s contention that Williams initiated the kidnapping of
Ms. Wilbur and nonetheless opted to sentence Petitioner to death.
Petitioner discounts the fact that Petitioner “did all the talking,” Sears v.
Humphrey, 751 S.E. 2d at 393, to the Waffle House witnesses and to the
policeman that Petitioner and Williams encountered as “entirely consistent with
Petitioner’s documented inability to self-censor” and the fact that Williams
appeared shy but was actually “sneaky.” ([60] at 111-12). He further argues that
while Petitioner may have attempted to hide his guilt, “tossing the victim’s
belongings from the moving vehicle are hardly beyond the capabilities of a braindamaged eighteen year-old” and points out that Petitioner also engaged in behavior
that would insure that he got caught. (Id. at 112). Petitioner’s alternative view of
the evidence, even if reasonable, fails to establish that the Georgia Supreme
Court’s conclusion was unreasonable.
Finally, with respect to Petitioner’s evidence of his neuropsychological
deficits, this Court points out that Petitioner has done nothing to refute trial
counsel’s testimony that at the time of Petitioner’s trial, Superior Court judges in
Cobb County had the practice of appointing a mental health expert employed by
the state to save the county money, and that those experts’ evaluations very rarely

67

produced a diagnosis that would have been helpful to the defense. (See [20.32] at
28). The record demonstrates that trial counsel would not have had access to the
diagnoses of Drs. Strickland and Dudley.8 See also Davis v. Singletary, 119 F.3d
1471, 1475 (11th Cir. 1997) (“[T]he mere fact a defendant can find, years after the
fact, a mental health expert who will testify favorably for him does not
demonstrate that trial counsel was ineffective for failing to produce that expert at
trial.”).
For the foregoing reasons, the Court finds that the Georgia Supreme Court’s
conclusion that Petitioner failed to establish prejudice with respect to his claim of
ineffective assistance during the penalty phase was not unreasonable under
§ 2254(d).

8

To the extent Petitioner may claim that the trial court’s practice of
appointing state employees as mental health experts violates due process under
McWilliams v. Dunn, 137 S. Ct. 1790 (2017), this Court’s conclusion below that
Petitioner cannot establish actual prejudice to demonstrate a due process violation
in connection with his Sabel claim likewise forecloses a claim under McWilliams.
68

3.

Ineffective Assistance of Counsel During the Guilt Phase of the
Trial

In his only claim of ineffective assistance during the guilt phase argued in
his final brief,9 Petitioner contends that trial counsel was ineffective in failing to
properly investigate the background of Petitioner’s codefendant, Phillip Williams.
Williams was a significant witness for the prosecution, and Petitioner claims that a
proper investigation by trial counsel would have revealed significant impeachment
evidence that trial counsel could have used to challenge Williams’ credibility. As
described above in the Georgia Supreme Court’s description of Petitioner’s crimes,
see supra § I.B, the only factual dispute between Williams’ and Petitioner’s
version of events concerned who first approached and attacked Wilbur, with each
claiming that the other had done so. According to Petitioner, if trial counsel had

9

Petitioner withdrew the portion of his Claim I in which he asserted that trial
counsel had a conflict of interest. ([60] at 272-73). In addition, in his amended
petition, Petitioner raised, in bullet point form, a raft of allegations of ineffective
assistance which accuse trial counsel of virtually every trial mistake imaginable,
starting with the pretrial investigation and continuing with voir dire, opening
statements, the state’s presentation of the case, their presentation of the defense,
closing arguments, and the preservation of issues to appeal. Petitioner did not brief
these claims in his final brief, and as these claims are presented in decidedly
conclusory fashion, without any factual or legal support, this Court concludes that
Petitioner has not demonstrated that he is entitled to relief with respect to those
claims.
69

obtained and used the available impeachment evidence, the jury would have been
more likely to believe that Williams had initiated the kidnapping.
Although this Court has already determined that this claim is properly
exhausted because Petitioner raised a version of the claim in his state habeas
corpus petition, ([37] at 39-40), Respondent nonetheless contends that the claim is
unexhausted under Hittson v. GDCP Warden, 759 F.3d 1210, 1232 n.23 (11th Cir.
2014), because Petitioner did not raise this claim before the Georgia Supreme
Court in his certificate of probable cause to appeal the denial of his state habeas
corpus petition. Regardless of the procedural approach this Court takes in
addressing this claim the result is the same because Petitioner cannot demonstrate
prejudice to either remove the procedural bar or to establish his ineffective
assistance claim.
The weight of the evidence of Petitioner’s guilt presented at trial precludes a
finding of prejudice from any lack of evidence impeaching Williams. As described
by the Georgia Supreme Court, when police questioned Petitioner, he immediately
admitted to police that he raped Wilbur and stabbed her in the neck to kill her.
Sears v. Humphrey, 751 S.E.2d at 371. He also consented to a search of his
parents’ home and showed the police the brass knuckles he used on Wilbur as well

70

as the briefcase that contained the knives, handcuffs and brass knuckles that
witnesses saw on the day of Wilbur’s abduction. Id at 372. Petitioner’s
audiotaped confession to police was played to the jury. ([15.18] at 50-90).
The evidence presented by the state against Petitioner at trial, including his
detailed confession to police, was so overwhelming that even the most talented
attorney could not have been expected to convince the jury to acquit Petitioner. In
view of the substantial evidence of guilt, Petitioner cannot demonstrate prejudice
even if the Court accepted his allegations of counsel ineffectiveness. Without a
showing of prejudice, Petitioner cannot prevail on his claim that trial counsel
rendered ineffective assistance during the guilt phase of the trial by failing to
introduce additional evidence impeaching Williams.
In relation to the penalty phase, trial counsel established that Williams was a
bad actor. During cross examination of Williams, trial counsel had him admit that
he initially lied when questioned by police, that he lied repeatedly about many
things, ([15.19] at 60-71), and that he lied to trial counsel’s investigator even after
he had confessed to police, (id. at 66-67). Trial counsel also elicited testimony that
Williams dealt drugs in high school. (Id. at 60). As part of trial counsel’s case in
mitigation during the penalty phase, trial counsel elicited testimony from a friend

71

of Petitioner’s that “Williams was spiteful, ‘purposely mean’ to teachers and
students, and intimidating, particularly to women.” Sears v. Humphrey,
751 S.E.2d at 379. Any additional evidence regarding Williams’ bad nature would
be largely cumulative of what the jury already knew. Pinholster, 563 U.S. at 173
(holding that the petitioner did not establish prejudice in part because “[t]he ‘new’
evidence largely duplicated the mitigation evidence at trial”).
The evidence trial counsel supposedly missed is not compelling in light of
what the jury already knew about Williams’ character. According to Petitioner,
“Williams had previously punched an Ohio robbery victim in the face, once struck
his own mother, and planned the beating of a fellow inmate whom he ‘ran up on’
and ‘hit, kicked, punched and kneed’ while the victim was on the ground.” ([60]
at 154 (emphasis in original)). That evidence would have done little, if anything,
toward convincing jurors that it was Williams, not Petitioner, that struck the victim
in the face in order to obtain her car. That the jury did not hear these facts does not
undermine the Court’s confidence in the outcome of the penalty phase. It is quite
possible, if not probable, that the jury believed Petitioner’s version of events.
Petitioner immediately admitted to police that he had abducted, raped, and killed
Wilbur, while Williams told numerous lies and changed his story several times.

72

Petitioner had no reason to lie about who perpetrated the initial attack when he had
admitted culpability for far more serious actions. In contrast, Williams repeatedly
attempted to lessen his own culpability. As a result, the jury had good reason to
believe Petitioner and not Williams regarding the initial attack. No reasonable
probability exists that the additional evidence that Petitioner now claims trial
counsel should have presented to the jury would have made a difference in their
choice of a sentence.
The Court disagrees with Petitioner’s contention that the issue of whether
Williams or Petitioner initiated the kidnapping “was the focal point of an
evaluation of both [Petitioner’s] guilt and his culpability.” ([60] at 237). If
Williams did attack Ms. Wilbur in the Kroger parking lot, it would not lessen
Petitioner’s guilt because Petitioner participated fully in the kidnapping and was
the one that, without Williams’ participation, raped and killed Ms. Wilbur. Any
lessening of Petitioner’s moral culpability would only be slight given the nature of
the crimes Petitioner confessed to committing and not enough to affect the Court’s
confidence in the outcome of the penalty phase of the trial.
That the jury did not hear evidence of Williams’ jailhouse battery does not
undermine the Court’s confidence in the outcome of Petitioner’s sentencing trial.

73

Petitioner contends that evidence would counter the prosecution’s evidence,
presented during the penalty phase, regarding Petitioner’s bad reputation at the jail.
Jim Burns, a major in the Cobb County Sheriff’s Department and a assistant
division commander at the Cobb County Adult Detention Center, testified during
the penalty phase that Petitioner had been reassigned as many as thirty-eight times
for disciplinary reasons, ([15-21] at 37), and that in Burns’ seventeen years with
the department, he had never had more trouble with an inmate than he had with
Petitioner, (id. at 43). Evidence of Williams’ battery conviction would not have
undermined Burns’ testimony. That one inmate at a jail would attack another
inmate is hardly surprising, and the single isolated incident involving Williams
does nothing to disprove or even blunt Burns’ testimony. Petitioner’s disciplinary
history at the jail stands on its own. That other disciplinary issues have occurred at
the jail is not noteworthy, and it does not serve to lessen the impact of the
testimony regarding Petitioner.
4.

Cumulative Effect

Petitioner’s contention that the “combined impact of trial counsel’s multiple
unreasonable omissions” resulted in prejudice fails because the Court has not

74

identified any unreasonable actions or omissions by trial counsel or resulting
prejudice, and, as a result, no cumulative prejudice exists to analyze.
5.

Failure to Perfect the Record Regarding the Sabel Issue

In his final assertion of ineffective assistance of counsel, Petitioner contends
that trial counsel failed to adequately perfect the record with regard to the trial
court’s Sabel order because they withdrew their motion for a mental health
evaluation without stating their reason for doing so. Setting aside Respondent’s
contention that this claim is unexhausted, the Court concludes Petitioner cannot
prevail on this claim because, as is discussed in connection with his Claim II,
Petitioner cannot demonstrate actual prejudice arising from the omission of expert
testimony from his trial. See infra discussion regarding Claim II at § III.B.
B.

Claim II: Trial Court’s Application of Rule from Sabel v. State
Violated Petitioner’s Rights

As discussed above in conjunction with Petitioner’s claim of ineffective
assistance of counsel, the holding in Sabel v. State, 282 S.E.2d 61, 68-69 (Ga.
1981), applied when Petitioner was tried. Under the rule in Sabel, the trial court
ordered that Petitioner was required to disclose the identities and reports of all
expert witnesses consulted by the defense, whether or not those experts would be
called to testify. Petitioner’s trial counsel strongly objected to this ruling and filed

75

two separate motions to avoid having to comply. As also discussed above, the trial
court’s Sabel ruling was a significant reason for trial counsel’s decision not to have
Petitioner undergo a mental health evaluation before trial.
In Rower v. State, 443 S.E.2d 839 (1994), the Georgia Supreme Court
modified the Sabel requirements, holding that the state may discover any written
reports of experts that the defendant intends to introduce at trial, but the defendant
is not required to disclose all experts consulted, have the opinions of experts
reduced to writing, nor produce any report that the defendant does not present at
trial. Id. at 841-42. The state court concluded that the Sabel rule, as it had been
interpreted by the Superior Courts, violated defendants’ due process rights under
the United States Supreme Court’s opinion in Wardius v. Oregon, 412 U.S. 470
(1973). Wardius stands for the proposition that a discovery rule that requires a
criminal defendant to disclose evidence that is not reciprocal (e.g., that does not
require the same disclosures by the state) violates due process. When Sabel was
decided, the state did not have a reciprocal burden to provide criminal defendants
with their expert’s identities or reports if that expert would not testify. See id. at
475 (“[D]iscovery must be a two-way street. The State may not insist that trials be

76

run as a ‘search for truth’ so far as defense witnesses are concerned, while
maintaining ‘poker game’ secrecy for its own witnesses.”).
In Wellons v. Hall, 554 F.3d 923, 931 (11th Cir. 2009), vacated on other
grounds, 558 U.S. 220 (2010), the Eleventh Circuit confronted a claim similar to
that raised here by Petitioner. The Eleventh Circuit determined that the trial
court’s Sabel order in Wellons’ case was clearly a due process violation under
Wardius, id. at 939, and this Court is thus compelled to reach the same conclusion.
The Eleventh Circuit further noted, however, that not “all federal
constitutional errors committed during the course of a criminal trial require
reversal of subsequent convictions.” Id. (citing Chapman v. California, 386 U.S.
18, 21–22 (1967) for the proposition that “judgments shall not be reversed for
errors or defects which do not affect the substantial rights of the parties.”). Rather,
federal courts confronting this type of error under § 2254 analyze it under a
“substantial-and-injurious-effect” standard under which the petitioner must
establish “actual prejudice” arising from the constitutional violation. Id. at 939-40
(applying the standard announced in Brecht v. Abrahamson,507 U.S. 619

77

(1993)).10 As such, this Court can grant relief only if Petitioner establishes that the
error had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 637.
Petitioner contends that he can demonstrate actual prejudice based on the
chilling effect that the Sabel order had on his trial counsel’s decision to forego a
mental health evaluation. Trial counsel testified that he would have had Petitioner
evaluated by a mental health expert if the Sabel rule had not been in effect.
According to Petitioner, he has demonstrated actual prejudice by producing the
evidence of his mental deficits – the testimony of Drs. Dudley and Strickland – that
was discussed in relation with his ineffective assistance of counsel claim.
Petitioner contends that because Sabel prevented his trial counsel from obtaining
and presenting this evidence to the jury, it had a substantial and injurious effect.

10

Although Petitioner’s Sabel claim is clearly a due process claim, he also
raises a Sixth Amendment right to counsel claim and an Eight Amendment right to
present mitigating evidence claim in connection with the trial court’s Sabel order.
This Court concludes, however, that regardless of how the claim is presented, the
prejudice analysis discussed in Wellons and Brecht applies. This is also the case
regarding Petitioner’s claim that his due process rights were violated under Ake v.
Oklahoma, 470 U.S. 68 (1985), and McWilliams v. Dunn, 137 S. Ct. 1790 (2017).
See McWilliams, 137 S. Ct. at 1801.
78

Petitioner raised a due process claim regarding the trial court’s Sabel ruling
in his direct appeal. The Georgia Supreme Court concluded that Petitioner did not
establish prejudice:
The record fails to support [Petitioner’s] assertion that the trial court
required his experts to provide written reports and release them to the
state. [Petitioner] initially sought public funds to hire a psychiatrist,
microanalyst, and forensic odontologist and filed a motion in limine to
bar the state from calling his expert witnesses at trial. Before the trial
court could rule on the motions, and without presenting any argument
at the ex parte hearing, [Petitioner] withdrew his motion for funds for
a psychiatrist to assist in the guilt-innocence phase of the trial. The
trial court later approved the hiring of a microanalyst and forensic
odontologist to review the materials used by the state’s expert to
establish the identity of the victim. In approving their employment,
the trial court ordered [Petitioner] to reveal their identity to the state.
At no time did the trial court order the defendant’s experts to produce
written reports and give them to the state. Given that [Petitioner]
withdrew his request for a psychiatrist before any court ruling, did not
consult a microanalyst, and eliminated the need for the odontologist’s
testimony by stipulating at trial to the victim’s identity, he has failed
to show any chilling effect or other harm from the ruling that he must
give the name of his experts to the state.
Sears v. State, 493 S.E.2d at 183.
The state habeas corpus court concluded that Petitioner’s Sabel claim was
barred under the doctrine of res judicata because the Georgia Supreme Court had
already rejected it. ([21.12] at 6). Petitioner contends that his claim before the
state habeas corpus court was qualitatively different because, when the claim was

79

before the Georgia Supreme Court, that court did not have the testimony of trial
counsel regarding the chilling effect of the trial court’s Sabel order or the expert
testimony regarding Petitioner’s mental deficits. Petitioner contends this Court
should review the merits of his claim de novo.
As is discussed at length above in rejecting Petitioner’s claim of ineffective
assistance in his state habeas corpus proceeding, the Georgia Supreme Court
specifically held that Petitioner failed to demonstrate prejudice in the penalty phase
of his trial based on the omission of the mental health evidence he presented in the
state habeas corpus proceeding, and this Court has determined that the state court’s
conclusion was not unreasonable under § 2254(d).
In United States v. Dominguez Benitez, 542 U.S. 74 (2004), the United
States Supreme Court announced that the substantial-and-injurious-effect
standard11 for establishing actual prejudice requires a demonstration that “but for
[the error claimed], the result of the proceeding would have been different,” id. at
81-82 (alteration in original), which is the same standard for establishing prejudice

11

In Dominguez Benitez, the Court discussed the substantial-and-injuriouseffect standard adopted by the Court in Kotteakos v. United States, 328 U.S. 750
(1946). The Kotteakos standard is the standard adopted by the Supreme Court in
Brecht and further adopted by the Eleventh Circuit in Wellons for evaluating a
Sabel due process claim.
80

under Strickland. This Court has already determined that Petitioner cannot show
actual prejudice as a result of the trial court’s Sabel ruling. The Court concludes
that Petitioner is not entitled to relief with respect to his claim that the trial court
violated his due process rights by requiring compliance with Sabel.
C.

Claim III: Juror Misconduct

In his Claim III, Petitioner alleges that a lone-holdout juror who wanted to
sentence Petitioner to life in prison was improperly pressured by other jurors to
agree to sentence Petitioner to death. Petitioner further claims that another juror
failed to disclose during voir dire that his daughter had been a victim of rape.
During jury deliberations that juror told the others that his daughter had been
raped.
1.

Juror Fisher: the Lone Holdout

The lone-holdout juror, Angel Fisher (Fisher), an African-American woman,
testified before the trial court on remand that she was the only juror who would not
agree to sentence Petitioner to death. ([17.9] at 36). According to Fisher, the other
jurors reacted with hostility and put a great deal of pressure on her. The foreman
told her that she might be tried for perjury because Fisher did not believe in the
death penalty but had testified during voir dire that she could vote for a death

81

sentence. (Id.) The foreman went so far as to send a note to the judge requesting a
transcript of the juror’s voir dire testimony along with the statutory definition of
perjury. ([15.24] at 11). Fisher also testified that this made her feel afraid, because
even though she knew that she had not lied during voir dire, she did not want to be
prosecuted for perjury, and that was “part of the reason” why she changed her vote
to death. ([17.9] at 37). Fisher testified that she wrote a note to the trial judge,
complaining that the foreman was being hostile towards her, but the judge did not
respond. (Id. at 46).
The Georgia Supreme Court addressed this claim after remanding the case to
permit evidentiary development of Petitioner’s claims of juror misconduct.
[Petitioner] contends the testimony of juror Fisher, adduced upon
remand, demonstrates that the actions of the trial court had a coercive
effect upon her verdict. In this regard, [Petitioner] points out that
Fisher testified she was afraid of being prosecuted for perjury, and she
believed the trial court wanted her to change her vote because it
singled her out by name and urged the jury to continue deliberating
when it knew the nature of the jury’s numerical division. We cannot
accept this contention.
Fisher, a school teacher, had a bachelor’s degree in criminal justice
and had attended graduate school. She was the lone holdout for a life
sentence-until she changed her mind. Although she testified that she
felt bullied by the threat of perjury, she knew that she had not lied
under oath. She felt intense pressure from the other jurors. (“I
remember being yelled at basically because I was – they were angry at
me. They wanted me to change my mind. So they were insulting my

82

character and things like that.”) Ultimately, she gave in to that
pressure. (“I changed my mind because they had – I mean I was
ostracized. And I was just – I was basically made to change my mind
by the other jury members.”) Viewing Fisher’s testimony as a whole,
it is clear that she voted for the death penalty because she felt
pressured to do so only as a result of the “normal dynamic of jury
deliberations.” United States v. Cuthel, 903 F.2d 1381, 1383 (11th
Cir. 1990).
Sears v. State, 514 S.E.2d at 433.
This Court concludes that the state court’s holding was not an unreasonable
application of federal law. Rule 606(b) of the Federal Rules of Evidence provides:
(b) During an Inquiry Into the Validity of a Verdict or
Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry
into the validity of a verdict or indictment, a juror may not testify
about any statement made or incident that occurred during the
jury's deliberations; the effect of anything on that juror's or another
juror's vote; or any juror's mental processes concerning the verdict
or indictment. The court may not receive a juror's affidavit or
evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought
to the jury's attention;
(B) an outside influence was improperly brought to bear on any
juror; or
(C) a mistake was made in entering the verdict on the verdict
form.
Rule 606(b) applies to § 2254 proceedings. Fed. R. Evid. 1101(e); see e.g.,
Fields v. Brown, 503 F.3d 755, 776 (9th Cir. 2007); Williams v. Price, 343 F.3d
83

223, 230 n.3 (3d Cir. 2003); Gosier v. Welborn, 175 F.3d 504, 511 (7th Cir.
1999).12 Rule 606(b) would apply to prevent this Court’s admission into evidence
of testimony by the individual jurors regarding their discussion and actions during
deliberations. See United States v. Stansfield, 101 F.3d 909, 914 (3d Cir. 1996)
(“Testimony concerning intimidation or harassment of one juror by another falls
squarely within the core prohibition of the Rule.”).
The avenues of inquiry in determining whether jury misconduct occurred are
limited to determining if either (1) prejudicial external information (e.g., from
outside the courtroom and jury room) was improperly supplied to the jury or (2)
prejudicial external influence or coercion was improperly brought to bear upon any
juror. Fullwood v. Lee, 290 F.3d 663, 680 (4th Cir. 2002). The exceptions to Rule
606(b) – which appear in the text of the rule itself – are designed to permit
testimony regarding such external information or influences. Otherwise, what

12

The Court is mindful that some federal circuit courts have suggested that
state evidentiary rules, rather than federal rules, are relevant when a habeas
petitioner first introduced such evidence in state court. See Loliscio v. Goord, 263
F.3d 178, 185-88 (2d Cir. 2001); Doan v. Brigano, 237 F.3d 722, 735 n.8 (6th Cir.
2001) abrogated on other grounds Wiggins v. Smith, 539 U.S. 510 (2003).
However, in this instance the federal rule and the Georgia rule are materially the
same. See former O.C.G.A. § 9-10-9 (“The affidavits of jurors may be taken to
sustain but not to impeach their verdict.”); O.C.G.A. § 24-6-606.
84

happened during jury deliberations cannot serve as a basis to abrogate the jury’s
verdict.
“[L]ong-recognized and very substantial concerns support the protection of
jury deliberations from intrusive inquiry.” Tanner v. United States, 483 U.S. 107,
127 (1987). Rule 606(b) of the Federal Rules of Evidence bars consideration of
Fisher’s allegations that she was subjected to pressure by other jurors for being a
holdout for a life sentence. See United States v. Norton, 867 F.2d 1354, 1366
(11th Cir. 1989) (noting that “alleged harassment or intimidation of one juror by
another would not be competent evidence to impeach the guilty verdict”); see also
United States v. Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007) (discussing the
rationale for the rule and noting that “[t]estimony concerning intimidation or
harassment of one juror by another falls squarely within the core prohibition of the
Rule”) (citation and quotation omitted); United States v. Decoud, 456 F.3d 996,
1019 n.11 (9th Cir. 2006); United States v. Briggs, 291 F.3d 958, 961 (7th Cir.
2002) (barring evidence of one juror being “‘intimidated’ by other jurors into
finding [the defendant] guilty”); United States v. Brito, 136 F.3d 397, 414 (5th Cir.
1998) (deeming evidence of internal coercion inadmissible per Rule 606(b));
United States v. Tallman, 952 F.2d 164, 167 (8th Cir. 1991) (“To admit proof of

85

contentiousness and conflict to impeach a verdict under Rule 606(b) would be to
eviscerate the rule.”).
In Jacobson v. Henderson, 765 F.2d 12, 14 (2d Cir. 1985), the Second
Circuit concluded there was no basis to impeach the verdict even in the event of
“screaming, hysterical crying, fist banging, name calling . . . the use of obscene
language, by other jurors” and a thrown chair in the jury room. In
United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998), the court, relying on
Rule 606(b), rejected defendants’ argument that they were entitled to a new trial
based upon juror misconduct. In Roach, a juror submitted a post-trial affidavit
claiming she had been unwilling to convict defendants but that other jurors had
pressured her into changing her vote. One juror threatened her with incarceration,
and there were overt racial comments in the jury room because she was one of two
Native American jurors and the only holdout against convicting three Native
American defendants. Id.; see also United States v. Barber, 668 F.2d 778, 786 (4th
Cir. 1982) (no basis to impeach verdict where juror claimed that foreman “scared
[her] to death”); United States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981)
(“intimidation or harassment among jurors” not competent to impeach verdict).

86

Petitioner’s reliance on Lowenfield v. Phelps, 484 U.S. 231, 241 (1988), and
Jenkins v. United States, 380 U.S. 445, 446 (1965), for the proposition that he is
entitled to an uncoerced verdict is misplaced because in those cases the Supreme
Court addressed coercion by the judge for the jury to reach a verdict. This Court
also does not credit Petitioner’s attempts to conflate the pressure that Fisher felt
from other jurors with his Claim IV, in which he complains that the trial judge’s
instruction to the deadlocked jury to keep deliberating improperly pressured jurors.
While the Court in Jenkins may have advocated an approach where courts
reviewing possible coercion of a jury by a judge to look at “all the circumstances
of [the] case” in determining whether a particular instruction was excessively
coercive, Jenkins, 380 U.S. at 446, the Court does not read that direction as an
exception to Rule 606(b).
The Court concludes that Petitioner is not entitled to relief with respect to his
claim regarding juror Fisher.
2.

Juror Makant and the Rape of his Daughter

As part of the voir dire process of Petitioner’s trial, the members of the jury
venire filled out a questionnaire. One of the questions asked the potential jurors
whether they or their family members had been a victim of a violent crime. ([16.3]

87

at 33). The questionnaire asked what the crime was, whether anyone was arrested
for it and whether anyone was convicted. (Id.) Juror Ken Makant (Makant)
answered that neither he nor any of his family members had been the victim of a
violent crime when, in fact, his daughter was a rape victim. Makant testified at the
hearing before the trial court after the Georgia Supreme Court remanded the case
for that purpose. According to his testimony, he misread the question to mean that
an affirmative response would mean that he or a family member had been a victim
of a crime and that someone had been arrested and convicted of the crime. ([17.8]
at 11). In the case of his daughter’s rape, the rapist had been a family member and
the crime had not been reported to police. (Id. at 30). Makant’s daughter was
thirteen years old at the time of the rape.
According to Makant during deliberations, when he was trying to convince
Fisher to change her mind and vote in favor of the death penalty, he said to her and
to the other jurors that Petitioner’s crimes were serious and that his “daughter
experienced a rape.” (Id. at 23.)13 He further testified that the fact of his

13

Juror Makant testified that this occurred during deliberations after the guilt
phase of the trial, but his description of the event indicates that it occurred during
penalty phase deliberations.
88

daughter’s rape was not a consideration in his decision to vote for the death penalty
and did not prevent him from being a fair and impartial juror. (Id. at 22, 25).
One of the attorneys that served as a prosecutor in Petitioner’s trial also
testified and said that if Makant had filled out the questionnaire properly and
included the fact that his daughter had been raped, it would have been an “absolute
disqualifier” of Makant as a juror. (Id. at 50.) If he had known about the rape, he
would have sought to have the trial judge strike Makant, and failing that he would
have used a peremptory strike. (Id. at 50).
Petitioner contends that Makant’s actions caused two violations to his right
to a fair trial. First, his incorrect answers to the voir dire questionnaire deprived
him of an impartial jury, and, second, his discussion of his daughter’s rape
introduced prejudicial outside information.
In affirming Petitioner’s convictions and sentences, the Georgia Supreme
Court discussed these claims:
In order for a defendant to secure a new trial because a juror did not
give a correct response to a question posed on voir dire (or, as here, a
juror questionnaire), the defendant must show that the juror failed to
answer the question truthfully and that a correct response would have
been a valid basis for a challenge for cause. Royal v. State, 465
S.E.2d 662 (Ga. 1996); Gardiner v. State, 444 S.E.2d 300 (Ga. 1994);
Isaacs v. State, 386 S.E.2d 316 (1989). The evidence does not show
that Makant lied when he answered [the] question. Instead, it shows

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that he answered the question truthfully, as he understood it. See Dyer
v. Calderon, 151 F.3d 970 (9th Cir. 1998) (jurors must answer
truthfully but “we must be tolerant, as jurors may forget incidents long
buried in their minds, misunderstand a question or bend the truth a bit
to avoid embarrassment”). Even if it could be said that Makant lied, a
correct response to the question would not have provided a valid basis
for a challenge for cause. Isaacs, supra; see Grogan v. State, 497
S.E.2d 589 (Ga. Ct. App. 1998) (correct response would have only
allowed for exercise of peremptory strike, not a challenge for cause).
...
The fact that juror Makant injected his daughter’s rape into the jury’s
deliberations is of no import. Makant testified that he only raised the
issue because he believed the holdout juror was not taking the
deliberations seriously. Besides, the circumstances of the rape of
Makant’s daughter differed markedly from the kidnapping, rape and
murder in this case. It cannot be said that Makant’s behavior in the
jury room rose to the level of juror misconduct. See Hilburn v.
Hilburn, 135 S.E. 427 (Ga. 1926) (jurors must bring their life
experiences to the jury room). See also Oliver v. State, 461 S.E.2d
222 (Ga. 1995) (jurors’ limited discussion of news story about murder
of state’s witness did not provide basis for new trial).
Sears v. State, 514 S.E.2d at 433-34.
With respect to Petitioner’s claim that Makant’s false statement deprived
him of an impartial jury, this Court first notes that the evidentiary basis for this
claim is juror Makant’s testimony and, perhaps statements of other jurors who
heard Makant mention the fact that his daughter had been raped. In
Warger v. Shauers, 135 S. Ct. 521, 525 (2014), the Supreme Court held that “Rule
606(b) applies to juror testimony during a proceeding in which a party seeks to
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secure a new trial on the ground that a juror lied during voir dire.” In other words,
under Warger, Makant’s and other jurors’ testimony is not admissible before this
Court to establish that Makant answered the question falsely.
The Court further finds that the Georgia Supreme Court’s conclusion that
Petitioner received a fair trial was not unreasonable under § 2254(d). The United
States Supreme Court established the standard for vacating a verdict because of
false statements by a juror on voir dire in McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984):
[T]o obtain a new trial in such a situation, a party must first
demonstrate that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause. The motives for
concealing information may vary, but only those reasons that affect a
juror’s impartiality can truly be said to affect the fairness of a trial.
The Georgia Supreme Court applied the standard properly. While
Petitioner’s trial counsel might well have wanted to know about the rape of
Makant’s daughter, Petitioner has failed to provide clear and convincing evidence
to overcome the presumption of correctness of the state court’s factual finding that
Makant made an honest mistake in omitting the rape from the questionnaire.
28 U.S.C. § 2254(e)(1) (“[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

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the presumption of correctness by clear and convincing evidence.”);
Barnes v. Sec’y, Dep't of Corr., 888 F.3d 1148, 1156 (11th Cir. 2018). The
Georgia Supreme Court’s determination that Makant “answered the question
truthfully, as he understood it” is not unreasonable. 28 § 2254(d)(2); Conner v.
Polk, 407 F.3d 198, 206 (4th Cir. 2005) (finding that court’s conclusion regarding
juror’s interpretation of question alleged to be falsely answered was not
unreasonable). Petitioner’s claim fails on the first prong of the McDonough test
quoted above.
The claim likewise fails on McDonough’s second prong. Petitioner has
failed to cite to, and this Court has been unable to locate, precedent, binding or
otherwise, that indicates that Makant should have been struck for cause based on
the fact that his daughter had been raped. No support exists in the record
establishing that Makant was unable to put his daughter’s rape aside and to decide
the case solely on the basis of the evidence presented at Petitioner’s trial and the
trial court’s instructions. Instead, Makant testified that his daughter’s rape had no
bearing on his verdict. ([15-3] at 76, 79, 82).
The record provides no basis to impugn Makant’s testimony that his
daughter’s rape did not impair his ability to render an impartial verdict. The Tenth

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Circuit decision in United States v. Powell, 226 F.3d 1181 (10th Cir. 2000), is
instructive. In Powell, a jury convicted the defendant of kidnapping a thirteenyear-old girl and repeatedly sexually assaulting her. One of the jurors’ daughters
had been raped ten years before the trial. During voir dire, the juror made several
equivocal responses regarding whether her daughter’s rape would prejudice her
against the defendant, until she eventually agreed that she would be able to put her
personal feelings aside and follow the instructions of the court. Id. at 1187. The
judge denied the defense’s motion to strike her for cause, the defense ran out of
peremptory challenges, and the woman served on the jury. Id. at 1186.
The Tenth Circuit concluded that the trial judge did not err in refusing to
strike the juror. The court explained that an implied bias arises when a juror who
believes she can be impartial “is so closely connected to the circumstances at issue
in the trial that bias is presumed,” based on “similarities that would inherently
create in a juror a substantial emotional involvement adversely affecting
impartiality.” Id. at 1188-89 (citations and quotations omitted). Based on that
standard, the court concluded that the facts surrounding rape of the juror’s daughter
and the facts at issue in the criminal case were not “sufficiently congruous” to
result in an implied bias. Id. at 1189.

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Here Petitioner’s rape of an elderly woman is not sufficiently congruous to
the rape of the juror’s thirteen-year-old daughter by an adult family member to
result in an implied bias. The Court has reviewed juror Makant’s voir dire
testimony and notes that he repeatedly testified that he was impartial, that he would
equally consider all of the sentencing options, and that he could listen to the
evidence and form his own independent opinion as to each issue presented to him
by the court. ([15-3] at 76, 79, 82). Based on the dissimilarities between the rape
of Makant’s daughter and Petitioner’s rape of his victim, Makant’s voir dire
statements, and his post trial statements regarding his impartiality, the Court
concludes that there was no constitutional requirement that Makant be struck for
cause if the trial court had known about his daughter’s rape.
The Court further holds that the Georgia Supreme Court’s conclusion that
Makant did not engage in misconduct by bringing up the rape of his daughter
during deliberations was not unreasonable under § 2254(d). As noted by the state
court, jurors are expected to bring their life experiences with them when called to
deliberate in judgment of their peers, see Head v. Hargrave, 105 U.S. 45, 49
(1881), and the manner in which Makant raised the matter during deliberations did
not render Petitioner’s trial unfair.

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The Court holds that Petitioner is not entitled to relief with respect to his
claims regarding juror Makant.
D.

Claim IV: The Trial Court’s Romine Charge Violated Petitioner’s
Rights14

Petitioner’s jury twice sent notes informing the trial court that they were
deadlocked. After the first note from the jury, the trial court instructed the jury as
follows:
You all have only been deliberating on this case for six hours. I would
like you all to consider continuing your deliberations and see what
you can do with the case. I’m not putting any pressure on you to do
anything one way or another. Whatever your decision is, that’s your
decision. But I feel like you need to deliberate on the case longer. I’m
going to send you to lunch, and I want you to come back after you’ve
had your lunch hour, and I want you to continue with your
deliberations.
([15.23] at 24-25).
After the second note from the jury, the trial court gave a more formal
charge which was approved in Romine v. State, 350 S.E.2d 446 (Ga. 1986), and
modeled after the charge in Allen v. United States, 164 U.S. 492 (1896).
14

In the order of June 20, 2017, denying discovery and an evidentiary hearing,
the Court reviewed Petitioner’s claims regarding the trial court’s modified Allen
charge extensively and concluded that Petitioner was not entitled to discovery or
an evidentiary hearing because he failed to show that the Georgia Supreme Court’s
adjudication of this claim was based on unreasonable factual determinations or on
an unreasonable application of clearly established federal law. ([54] at 49).
95

Mr. [Foreman], I’ve received your note. And in light of your note, I
believe it’s appropriate to give you some further instructions at this
time. You’ve been deliberating a while, and I deem it proper to
advise you further in regards to the desirability of agreement, if
possible.
This case has been exhaustively and carefully tried by both sides. It
has been submitted to you for a decision and verdict, if possible.
While the verdict must be the conclusion of each juror, and not a mere
acquiescence of the jurors in order to reach an agreement, it is still
necessary for all of the jurors to examine the issues and questions
submitted to them with candor and fairness and with proper regard
and deference to the opinion of each other. A proper regard for the
judgments of others will greatly aid us in forming our own judgments.
Each juror should listen to the arguments of other jurors. If the
members of the jury differ in their views of the evidence, or the
mitigating or aggravating circumstances, such differences of opinion
should cause them all to scrutinize the evidence more closely and to
re-examine the grounds of their opinion. It’s your duty to decide the
issues that have been submitted to you, if you can conscientiously do
so. Do not hesitate to change an opinion if you become convinced it’s
wrong. However, you should never surrender honest convictions or
opinions in order to be congenial or reach a verdict solely because of
the opinions of other jurors.
Members of the jury, the aim ever to be kept in view is the truth as it
appears from the evidence, examined in the light of the instructions of
the Court.
([15.23] at 30-31) (the “Allen charge”).
Petitioner first challenges this charge as improper in view of the pressure
applied to the lone-holdout juror, Fisher, by other jurors as explained in
Petitioner’s Claim III. Petitioner maintains that this charge “exacerbated the

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impact” of the alleged misconduct and that the judge should have done more to
“ensure that each juror voted his conscience and was not influenced by improper
considerations.” ([60] at 230). However, this Court has already determined that
the other jurors did not apply improper pressure on juror Fisher. The trial court
also repeatedly instructed the jury that they should hold to their honest convictions
and that they should not reach a verdict solely because of the opinions of other
jurors.
The Court further notes that the issues concerning juror Fisher did not arise
until after the trial court gave the Allen charge. After the jury foreman and Fisher
sent their notes to the judge indicating some discord between Fisher and the other
jurors, the judge merely responded to those notes. In response to the foreman’s
question about whether the jury could impose the death penalty even though they
had not convicted Petitioner of murder, the judge instructed the jury that they may
impose the death penalty if they found the presence of a statutory aggravating
circumstance. ([15.24] at 29-30). The judge then refused the foreman’s request
that the jury have access to the voir dire transcript or the statutory definition of
perjury. (Id. at 30). Finally, the judge provided a brief description of the duties of
the foreman and further noted that all jurors have a duty to participate in

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deliberations. (Id. at 30-31). After confirming that the jury had been deliberating
that morning, the judge said nothing further and sent the jury back to their
deliberations. (Id.) The trial court did not repeat the Allen charge or otherwise
pressure the jury following the indication of discord among the jurors.
Petitioner further complains that the trial court’s Allen charge “improperly
indicated that the inability to reach a unanimous verdict would result in a new
trial,” [60 at 234], and that the judge required further deliberations even after the
jury told the judge that they were deadlocked. As a result, according to Petitioner,
Fisher, as the lone holdout felt that the judge wanted her to change her vote to
reach a unanimous decision.
The Georgia Supreme Court held that, because the trial court “made it clear
that, although the jurors should consider the opinions of other jurors, they must
never surrender their honest opinions for the sake of expediency,” the Allen charge
was not coercive. Sears v. State, 514 S.E.2d at 432.
The court further stated:
The trial court’s other instructions, urging the jury to reach a
consensus, and to participate in the deliberations, were not coercive
either. They did not put pressure on the jurors “one way or the other,”
see Romine, 350 S.E.2d 446; they did not exhort “the minority to
reexamine its views in deference to the majority, or to suggest that the
majority’s position is correct.” United States v. Norton, 867 F.2d

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1354, 1366 (11th Cir. 1989). Nor did they urge the jurors “to abandon
an honest conviction for reasons other than those based upon the trial
or the arguments of other jurors. [Cit.]” Harris v. State, 435 S.E.2d
669 (Ga. 1993).
Although the jury twice stated that it was at an eleven to one
“deadlock,” the trial court was not bound by those pronouncements.
Todd v. State, 255 S.E.2d 5 (Ga. 1979) (court is not required to accept
jury’s feeling that it is “hopelessly deadlocked”). On the contrary, the
trial court, in the exercise of a sound discretion, was required to make
its own determination as to whether further deliberations were in
order. Romine, 350 S.E.2d 446.
The jury first indicated it was deadlocked after only six hours of
deliberation. And it announced it was deadlocked again, after just
another three hours. We cannot say that the trial court abused its
discretion in requiring the jury to deliberate further, see United States
v. Kramer, 73 F.3d 1067 (11th Cir. 1996) (jury not deadlocked after
deliberating seven days); Holt v. State, 385 S.E.2d 787 (Ga. Ct. App.
1989) (jury not deadlocked after four days, “more time than it had
taken to try the case”), especially since, after the second
announcement of a “deadlock,” the jury deliberated more than five
hours before reaching a verdict. See Allen v. State, 390 S.E.2d 848
(Ga. 1990) (fact that Allen charge was not coercive can be inferred
from length of time jury continues to deliberate); United States v.
Norton, supra (lapse of four hours following Allen charge suggests
absence of coercion). Moreover, it cannot be said that the verdict was
coerced simply because the trial court gave a modified Allen charge
after the jury revealed its numerical division (11-1 in favor of the
death penalty). See id.; Sanders v. United States, 415 F.2d 621, 63132 (5th Cir. 1969) (court should not be precluded from giving Allen
charge because jury volunteered nature and extent of its division).
Sears v. State, 514 S.E.2d at 432–33.

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As this Court already has noted in reviewing Respondent’s procedural
defenses, ([54] at 24), at the time of Petitioner’s direct appeal, Lowenfield v.
Phelps, 484 U.S. 231 (1988), was the only Supreme Court decision addressing the
constitutional rule against coercive jury instructions. See Wong v. Smith, 131 S.
Ct. 10, 11 (2010) (Alito, J., dissenting). “As a result, the clearly established law in
this area provides very little specific guidance. About all that can be said is that
coercive instructions are unconstitutional, coerciveness must be judged on the
totality of the circumstances, and the facts of Lowenfield (polling a deadlocked
jury and reading a slightly modified Allen charge) were not unconstitutionally
coercive.” Id. at 11-12. “A general standard such as this gives state courts wide
latitude for reasonable decisionmaking under [section 2254(d) ].” Id.; see
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations”).
As also discussed at length by this Court, ([54] at 24-26), Early v. Packer,
537 U.S. 3 (2002), involved a more extreme example of a trial judge giving an
Allen charge and requiring a jury to continue deliberating for a significantly longer
period of time in the face of a lone-holdout juror. After days of deliberations, the

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jury eventually returned with a guilty verdict on two murder counts. The state
court found that the trial court’s actions were not coercive, and the defendant
sought federal habeas relief under § 2254. The Ninth Circuit granted relief and the
Supreme Court reversed, under § 2254(d) stating “[e]ven if we agreed with the
Ninth Circuit majority . . . that there was jury coercion here [by the trial judge], it
is at least reasonable to conclude that there was not, which means that the state
court’s determination to that effect must stand.” Id. at 11.
In its own review of the trial court’s Allen charge, the Court concludes that it
was not coercive, even in light of the internal pressure that other jurors might have
placed on juror Fisher. While the trial judge clearly indicated the desirability of a
unanimous verdict, the judge also instructed that “the verdict must be the
conclusion of each juror, and not a mere acquiescence of the jurors in order to
reach an agreement,” that jurors “should never surrender honest convictions or
opinions in order to be congenial or reach a verdict solely because of the opinions
of other jurors,” and that “the aim ever to be kept in view is the truth as it appears
from the evidence, examined in the light of the instructions of the Court.” ([15.23]
at 30-31).

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Given United States Supreme Court precedent as well as this Court’s own
impression of the trial court’s Allen charge and the circumstances surrounding it,
Petitioner’s arguments that the Georgia Supreme Court’s conclusion is not entitled
to § 2254(d) deference are unconvincing. The Court concludes that Petitioner is
not entitled to relief with respect to his Claim IV.
E.

Claim V: Petitioner’s Claim that the Prosecution Violated
Petitioner’s Rights under Brady v. Maryland, 373 U.S. 83 (1963)15

As discussed above, Petitioner’s codefendant, Phillip Williams, testified for
the prosecution at Petitioner’s trial. In the Court’s April 8, 2016, Order, the Court
concluded that it is undisputed that the prosecution failed to disclose that Williams
had been convicted of battery for a premeditated assault he committed at the Cobb
County Adult Detention Center. ([37] at 21). As a result, the Court further
concluded that Petitioner had demonstrated cause and prejudice to overcome the

15

In the order of April 8, 2016, ruling on Respondent’s procedural defenses,
this Court dismissed those portions of Claim V (1) that the prosecution violated his
rights as expressed in Giglio v. United States, 405 U.S. 150 (1972), by presenting
the false testimony of Williams, ([37] at 24), (2) raising a claim of prosecutorial
misconduct because the prosecutor vouched for Williams’ credibility, (id. at 47),
(3) raising a claim of prosecutorial misconduct because the prosecutor argued the
worth and value of the victim during his sentencing phase closing argument, (id. at
48), and (4) raising a claim of prosecutorial misconduct because the prosecutor
violated Giglio with the false testimony of other witnesses (id. at 51, 52).
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procedural default of his Brady v. Maryland claim. This Court discussed the Brady
v. Maryland standard as follows:
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held
“that the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady, 373 U.S. at 87. This “duty to
disclose such evidence is applicable even though there has been no
request by the accused,” and includes “impeachment evidence as well
as exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280
(1999). “Such evidence is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. (internal quotations
omitted). “In order to comply with Brady, therefore, the individual
prosecutor has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in this case, including the
police.” Id. at 281 (citing Kyles v. Whitley, 514 U.S. 419. 437
(1995)). “There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” Id. at 281-82.
([37] at 19-20).
Respondent contends that this claim is unexhausted and that he has not
waived the defense, even though he failed to raise exhaustion regarding this claim
when he briefed his procedural defenses. Regardless of the procedural approach
the Court takes in addressing Petitioner’s claim the result is the same because

103

Petitioner cannot demonstrate prejudice to either remove the procedural bar or
materiality to establish his Brady claim.
The Court disagrees with Petitioner’s contention that the earlier cause and
prejudice determination indicates that Petitioner is entitled to relief on his Brady
claim “[b]ecause the cause and prejudice inquiry is coextensive and coterminous
with the standard by which the underlying claim is measured.” ([60] at 236). The
Court has not analyzed the merits of Petitioner’s claim. Rather, the Court merely
determined that if Petitioner has a valid Brady claim, Respondent cannot defeat it
with a procedural defense.
Having now analyzed the claim, the Court concludes that Petitioner cannot
demonstrate prejudice because the evidence was not material under Brady. The
prejudice that Petitioner must establish under Brady is the same prejudice standard
that applies under ineffective assistance of counsel claims under Strickland.
Tanzi v. Sec., Fla. Dept. of Corrections, 772 F.3d 644, 661-62 (11th Cir. 2014). In
discussing Petitioner’s claim of ineffective assistance of trial counsel, the Court
determined that, given Petitioner’s full confession to police, the evidence against
Petitioner was overwhelming. Additional evidence impeaching Williams would
not have made a difference during the guilt phase of the trial.

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Likewise, in discussing Petitioner’s claim that trial counsel failed to properly
investigate Williams’ background, the Court determined that the existence of
additional evidence impeaching Williams not presented to the jury did not
undermine the Court’s confidence in the outcome of the penalty phase of the trial
because: (1) any additional evidence of Williams’ bad nature was cumulative of
what the jury had already heard; (2) the evidence that trial counsel supposedly
missed, which included the battery at the Cobb County Adult Detention Center,
was not compelling in light of what the jury already knew; (3) the jury already had
good of reason to believe Petitioner’s version of events over Williams’; and (4) the
evidence of Williams’ conviction would not have effectively countered the
prosecution’s evidence regarding Petitioner’s disciplinary history at the jail. Supra
§ III.A.3. Put simply, the Court found that the evidence did not have a reasonable
probability of changing the outcome of the penalty phase of the trial, and based on
that finding, the Court must further conclude that the evidence of Williams’ battery
conviction was not material under Brady.
The Court also agrees with the state habeas corpus court’s conclusion in the
alternative that Petitioner failed to establish a Brady claim because he did not
demonstrate his inability to obtain evidence of Williams’ conviction on his own

105

with reasonable diligence. ([21.36] at 60-61). In his reply memorandum,
Petitioner contends that Brady does not require that Petitioner prove that he could
not have obtained the evidence with reasonable diligence. ([72] at 49). For years,
however, the Eleventh Circuit has held that in order to establish a Brady claim, the
defendant must show that he “does not possess the evidence and could not obtain
the evidence with any reasonable diligence.” United States v. Stein, 846 F.3d
1135, 1146 (11th Cir. 2017); United States v. Vallejo, 297 F.3d 1154, 1164 (11th
Cir. 2002); United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989); United
States v. Valera, 845 F.2d 923, 927-28 (11th Cir.1988); United States v. Prior,
546 F.2d 1254, 1259 (5th Cir. 1977). Records of criminal convictions are a matter
of public record, and trial counsel, or his investigators, could have discovered the
conviction with reasonable diligence.
The state habeas corpus court, in its first order denying relief, also concluded
that Petitioner failed to establish his Brady claim. ([21.12] at 32-33 (holding that
“there is not a reasonable likelihood the result of either phase [of] Petitioner’s trial
would have been different” if Petitioner had access to the information regarding
Williams’ battery conviction)). Petitioner has not presented any argument that the

106

state court’s conclusion was unreasonable under § 2254(d). The Court concludes
that the state court was correct.
For the foregoing reasons, the Court concludes that Petitioner failed to
demonstrate that he is entitled to relief on Claim V.
F.

Claim VI: First Trial Judge’s Failure to Recuse

Judge Grant Brantley, who left the bench in 1992, first presided over
Petitioner’s criminal case. At Petitioner’s first appearance, Judge Brantley noted
that he knew the victim, Gloria Wilbur, and her husband socially. Petitioner filed a
motion for the judge to recuse. In a deposition, Judge Brantley testified that he
knew the Wilburs, especially Mr. Wilbur, whom he considered a friend. ([14.14]
at 17-26).
Nonetheless, Judge Brantley denied the motion to recuse and went on to rule
on several motions, most notably, Petitioner’s motion to suppress the statement
that he had given to police and the fruits of the search of Petitioner’s home.
([14.12] at 55-56, 58-59). Judge Brantley left the bench before Petitioner’s trial.
Petitioner filed an interlocutory appeal challenging the judge’s failure to
recuse. The Georgia Supreme Court affirmed Judge Brantley’s denial of the
recusal motion stating:

107

The victim’s husband was an attorney. He and the trial judge served
in the Air National Guard (the “ANG”) assigned to the State
Headquarters. The judge is a judge advocate, the husband (now
retired from the ANG) was not. They were in different departments.
The husband and the trial judge were never associated as co-counsel
in a case, and never handled cases as opposing counsel. The husband
has appeared before the trial judge only in one contested case (and an
occasional uncontested divorce).
Socially there has been minimal contact. Both attended a retirement
function for another member of the ANG. The judge went to a
birthday party at the husband’s house “several years ago.” From time
to time, both dined with a group of ANG staff, and might have sat at
the same table. The judge testified that the victim’s husband was a
friend, but not a close personal friend.
One time the victim talked to the judge at his office about some
domestic relations problems. He told her he could not get involved.
The conversation may have lasted 30 minutes, the judge explaining:
You know, if someone calls and says can I come by and
talk to you for a few minutes, yes, sure, come by, this is
what it’s about, and by the time you pass the amenities,
find out what it’s about, and take the time in a courteous
way to explain why you cannot get involved in the
matter, I would guess that whatever time transpired it
was doing those things, and I would guess, I don’t know,
could be thirty minutes by the time you do those things.
The focus here is not on bias in fact but whether the judge’s
impartiality might reasonably be questioned, keeping in mind the
reality that any judge will have “come to the bench after having had
extensive contacts with the community and the legal profession.”
Bonelli v. Bonelli, 570 A.2d 189 (Conn. 1990).

108

Recusal generally has not been mandated simply because the judge
knew socially one or more of the parties or their attorneys. In Bonelli
v. Bonelli, supra, recusal was not required even where the judge had
been co-counsel with one of the attorneys in a related case that was
still pending, where the co-counsel relationship was limited, the judge
no longer had any financial interest in the related case, and there was
no recent contact between the judge and the attorney about the case.
In Smith v. State, 375 S.E.2d 69 (Ga. Ct. App. 1988), the Court of
Appeals upheld the denial of recusal where the victim of an alleged
attempt to commit murder was the sheriff, with whom the judge had a
regular working relationship.
Any analysis of the necessity for recusal is necessarily fact-bound,
requiring an examination of the nature and extent of any business,
personal, social or political associations, and an exercise of judgment
concerning just how close and how extensive (and how recent) these
associations are or have been.
While the victim’s consultation with the judge about her domestic
situation merits scrutiny, in view of the limited nature of the
consultation, and the judge’s refusal to get involved, it is not enough
reasonably to call into question the trial judge’s impartiality in this
case. Given the limited social relationship and the lack of any legal
relationship between the judge and the victim and her husband, we
conclude that recusal is not necessary. Compare Ward v. State, 417
S.E.2d 130 (Ga. 1992).
Sears v. State, 426 S.E.2d at 555.
Petitioner attempts to demonstrate that the Georgia Supreme Court’s
decision is not entitled to deference, citing a series of cases that stand for the
general proposition that judges should not be biased and should not appear biased.

109

He has not, however, produced clear and convincing evidence demonstrating that
the state court’s finding that the judge had a limited social relationship and no legal
relationship with the victim or her husband was incorrect. 28 U.S.C. § 2254(e)(1);
Barnes v. Sec’y, Dep't of Corr., 888 F.3d 1148, 1156 (11th Cir. 2018). Based on
those findings, the Court concludes that the state court’s conclusion was not an
unreasonable application of United State Supreme Court precedent.
The Court alternatively concludes that Petitioner’s Claim VI does not raise a
viable § 2254 claim because it does not allege a constitutional violation. The Due
Process Clause guarantees criminal defendants the right to “a judge with no actual
bias against the defendant or interest in the outcome of his particular case.” Bracy
v. Gramley, 520 U.S. 899, 904-05 (1997) (emphasis supplied). However, “most
questions concerning a judge’s qualifications to hear a case are not constitutional
ones, because the Due Process Clause . . . establishes a constitutional floor, not a
uniform standard.” Id. (citations omitted). Indeed, the Eleventh Circuit has held
that “there is no Supreme Court decision clearly establishing that an appearance of
bias or partiality, where there is no actual bias, violates the Due Process Clause or
any other constitutional provision.” Whisenhant v. Allen, 556 F.3d 1198, 1209
(11th Cir. 2009).

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[T]he Due Process Clause incorporates the rule at common law that
mandated recusal only when the judge had a direct, personal,
substantial pecuniary interest in reaching a conclusion against him in
his case. Matters of kinship, personal bias, state policy, and
remoteness of interest would seem generally to be matters merely of
legislative discretion., and personal bias or prejudice alone would not
be sufficient basis for imposing a constitutional requirement under the
Due Process Clause.
Norris v. United States, 820 F.3d 1261, 1266 (11th Cir. 2016) (citations omitted).
Here the trial judge’s relationship with the victim and her husband did not
amount to an actual bias. Petitioner has no constitutional claim and thus no right to
relief under § 2254.
G.

Claim VII: Trial Court’s Erroneous Instructions Violated
Petitioner’s Rights

In the order of April 8, 2016, this Court dismissed the portion of Petitioner’s
Claim VII wherein he argues that the trial court failed to properly instruct the jury
regarding the crime of armed robbery during the sentencing phase. ([37] at 53). In
his final brief, ([60] at 272-73), Petitioner withdrew the remaining portions of his
Claim VII.
H.

Claim VIII: The Prosecution Violated Batson v. Kentucky

According to Petitioner, although only twenty percent of the jury venire was
African-American, the prosecution used four of its six peremptory strikes to
remove African-Americans Barbara Hartsfield, Christopher Evans, Sandra
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Herrera-Johnson, and Elzie Hendrix, and the prosecution’s sole alternate jury strike
was African-American Michael Lyles. Petitioner contends that the prosecution
exercised these five peremptory strikes in violation of Batson V. Kentucky,
476 U.S. 79 (1986), in which the Supreme Court held that striking a potential juror
for reasons of race violated the Equal Protection Clause.
Under Batson, trial courts employ a three-step process for evaluating claims
that a prosecutor used peremptory challenges to strike prospective jurors because
of their race.
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; second, if that
showing has been made, the prosecution must offer a race-neutral
basis for striking the juror in question; and third, in light of the
parties’ submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.
Miller-El v. Dretke, 545 U.S. 231, 276-77 (2005) (citations, quotations and
alterations omitted). In evaluating a trial court’s determination that the
prosecution’s race-neutral reason for striking a juror were adequate under
§ 2254(d), relief may be granted only “if it was unreasonable to credit the
prosecutor's race-neutral explanations.” McGahee v. Alabama Dept. Of
Corrections, 560 F.3d 1252, 1256 (11th Cir. 2009) (citations and quotation
omitted).

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In his direct appeal, Petitioner challenged the prosecution’s peremptory
strikes for three of the five strikes – jurors Hendrix, Herrera-Johnson, and Lyles.
These are the same strikes he raises in his petition. He did not raise a Batson
challenge regarding jurors Hartsfield and Evans in his appeal or in his state habeas
corpus petition.
Respondent concedes that he inadvertently failed to raise a procedural
defense to Petitioner’s claims regarding Hartsfield and Evans in his brief on
procedural defenses. He points out, however, that under 28 U.S.C.
§ 2254(b)(B)(ii)(3), he cannot be deemed to have waived the exhaustion
requirement unless he has done so expressly through counsel. He thus contends
that the claims regarding Hartsfield and Evans are unexhausted and should be
dismissed as procedurally defaulted. (See [37] at 7-8 (order discussing failure to
exhaust)). In his reply brief, Petitioner concedes that Respondent’s procedural
defenses must be expressly waived, but contends that Respondent’s failure to raise
them in his brief on procedural defenses, [32], amounted to an express waiver.
Petitioner fails to cite to any case law that supports his argument, and the
Court concludes that the § 2254(b)(B)(ii)(3) requirement means what it says –
Respondent cannot be deemed to have waived a procedural defense unless he has

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expressly done so. Accepting Petitioner’s argument would be to recognize the
existence of an “implied express waiver,” which would have the effect of excising
§ 2254(b)(B)(ii)(3) from the habeas corpus statute. Accordingly, this Court
concludes that Petitioner’s Batson claims regarding jurors Hartsfield and Evans are
unexhausted and procedurally defaulted and therefore dismissed.
In any event, Petitioner cannot establish his Batson claim regarding either
Evans or Hartsfield. After the prosecution struck Evans, the trial court made a
Batson inquiry. ([15.15] at 18). The prosecutor noted that Evans objected to
capital punishment, and when questioned individually he stated that he was
opposed to capital punishment and hesitated when asked whether he could impose
the death penalty. Evans said that his personal beliefs were against capital
punishment and he did not know whether he could vote for the death penalty. (Id.
at 18-19). Petitioner’s trial counsel did not respond. (Id. at 19).
With respect to Hartsfield, the prosecutor further noted this juror raised her
hand when the jurors were asked whether they had any religious or moral
objections to the death penalty. (Id. at 26). When questioned, she said that she
was “deeply troubled” with the death penalty. (Id.). She further stated that she
was “vehemently opposed to the manner in which the death penalty in this country

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was being imposed,” especially against African-Americans and that she would
require, beyond a shadow of a doubt, any evidence before she would consider the
death penalty. (Id.). Again, trial counsel did not respond. (Id. at 27). The Court
finds that the prosecutor had valid race-neutral reasons for striking Evans and
Hartsfield.
Regarding the three peremptory strikes that Petitioner raised in his appeal,
the Georgia Supreme Court held as follows:
The state used four of the six peremptory strikes that it exercised
against African–American members of the jury panel and exercised its
only strike during the selection of alternate jurors against an African–
American. [Petitioner] contends that the state exercised three of its
peremptory strikes in a racially discriminatory manner in violation of
Batson v. Kentucky. The state explained that it struck one juror
[Hendrix] because he expressed a mistrust for attorneys and the first
witness for the state, the victim’s husband, was an attorney; struck
another juror [Herrera-Johnson] because she was breastfeeding her
10-month-old and sequestration would create a hardship for both
mother and child; and struck a third juror [Lyles] who was a
psychiatrist because he had six acute patients who needed constant
attention and he had counseled prisoners in the past. In each instance,
the trial court found that the state had offered a race-neutral reason for
the strike and allowed the strike to stand. Because these findings are
not clearly erroneous and [Petitioner] has failed to prove that the state
acted with discriminatory intent in exercising its peremptory
challenges, we conclude that there was no Batson violation.
Sears v. State, 493 S.E.2d at 185.

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According to Petitioner, the state court’s opinion is not entitled to deference
because it failed to take into account that the prosecution “failed to strike white
jurors who expressed similar views to those African-American jurors who were
struck, such as a distrust of attorneys or a concern about family hardship. The
prosecutor often failed to question white jurors about these matters entirely.” ([60]
at 258-59). Petitioner has entirely failed, however, to identify white jurors who
expressed those similar views or provide citation to the record showing where
those white jurors made such statements. In the absence of any evidentiary support
for Petitioner’s claim, this Court defers to the state court’s conclusion. See Chavez
v. Sec’y, Fl. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (noting that
district courts ruling on habeas corpus petitions have no obligation to mine the
record searching for support for a petitioner’s claims).
I.

Claim IX: Petitioner’s Witherspoon v. Illinois, 391 U.S. 510
(1968), Claim

In his Claim IX, Petitioner contends that the trial court violated his rights
under the holding in Witherspoon v. Illinois, 391 U.S. 510 (1968), by excusing for
cause jurors whose views on the death penalty did not justify removal. In the order
of April 4, 2016, ([37] at 15-17), the Court dismissed this claim after concluding

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that the claim was procedurally defaulted and that Petitioner failed to demonstrate
cause and prejudice to excuse the default.
J.

Claim X: Trial Court Failed to Remove Jurors for Cause or Bias

Petitioner claims that the trial court should have removed panel members
William Kujuwa, Michael Leberman, and Earl Morgan from the jury panel for
cause because of the views they expressed during voir dire. None of those three,
however, served on Petitioner’s jury. Under Georgia law, death penalty defendants
are entitled to 42 qualified jurors, and the erroneous qualifying of a single juror for
the panel from which the jury was struck requires reversal. Lively v. State, 421
S.E.2d 528, 529 (Ga. 1992). Conversely, under federal constitutional law, if a
biased or otherwise unfit panel member does not serve on the jury, Petitioner
cannot have been prejudiced by the trial court’s refusal to strike that individual for
cause even though Petitioner might have been required to use a peremptory strike
to avoid having that panel member serve. “[I]f [a] defendant elects to cure [a trial
judge’s erroneous for-cause ruling] by exercising a peremptory challenge, and is
subsequently convicted by a jury on which no biased juror sat,” the Supreme Court
has held that the criminal defendant “has not been deprived of any . . .
constitutional right.” United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000).

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The “use [of] a peremptory challenge to effect an instantaneous cure of the error”
demonstrates “a principal reason for peremptories: to help secure the constitutional
guarantee of trial by an impartial jury.” Id. at 316; see also Ross v. Oklahoma, 487
U.S. 81, 88 (1988) (rejecting “the notion that the loss of a peremptory challenge
constitutes a violation of the constitutional right to an impartial jury”).
Even if one of the three panel members had made it onto the jury, the
Georgia Supreme Court concluded that “[a] review of the voir dire of each
prospective juror shows that the trial court did not abuse its discretion in deciding
that each juror was capable of impartial service and would consider both mitigating
evidence and the trial court’s instructions in determining the appropriate sentence,”
Sears v. State, 493 S.E.2d at 185, and Petitioner has failed to even attempt to
demonstrate why that court’s conclusion was unreasonable under § 2254(d).
The Court concludes that Petitioner is not entitled to relief on Claim X.
K.

Claim XI: Petitioner’s Sentence Is Disproportionate and
Excessive

In the order of April 8, 2016, ([37] at 25-30), this Court dismissed that
portion of Petitioner’s Claim XI wherein he contends that his cognitive and
emotional impairments render him the legal equivalent of a juvenile offender. The
surviving portions of Petitioner’s Claim XI raise two distinct issues. He first

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asserts that his death sentence for the crime of kidnapping with bodily injury
violates the Eighth Amendment’s prohibition of cruel and unusual punishments
because it is excessive to that crime. Petitioner next asserts that the Georgia
Supreme Court abdicated its statutory duty to carry out a meaningful
proportionality review.
With respect to the first part of the claim, Petitioner contends that “the
United States Supreme Court has disapproved the use of the death penalty in
response to nonhomicide offenses.” ([60] at 263-64). However, the cases that
Petitioner relies on all qualify their holdings to note that the death penalty is not
appropriate for non-homicide offenses where the offense does not result in the
death of the victim. In Coker v. Georgia, 433 U.S. 584, 598 (1977), the Court held
that “the death penalty . . . is an excessive penalty for the rapist who, as such, does
not take human life.” Eberheart v. Georgia, 433 U.S. 917 (1977), which involved
kidnapping and rape but not the death of the victim, was a summary ruling that
relied on Coker. Likewise, in Kennedy v. Louisiana, 554 U.S. 407, 421 (2008), the
Supreme Court held that “a death sentence for one who raped but did not kill a
child, and who did not intend to assist another in killing the child, is
unconstitutional.”

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In Enmund v. Florida,458 U.S. 782 (1982), the Court held that the death
penalty is excessive for a robbery conspirator who did not kill, attempt to kill or
intend that deadly force be used by one of his coconspirators. But in Tison v.
Arizona, 481 U.S. 137 (1987), the Court approved the death sentences for
defendants who did not themselves kill the victims, but their involvement in the
events leading up to the murders was active, recklessly indifferent, and substantial.
Those cases stand for the proposition that the death penalty is not excessive
for a defendant who commits a capital crime when that crime results in the
intentional death of the victim. As the overwhelming evidence in this case
establishes that Petitioner intentionally stabbed Wilbur to death after kidnapping,
robbing and raping her, the Court concludes that his death sentence is
constitutional.
As to Petitioner’s claim regarding the Georgia Supreme Court’s
proportionality review, under O.C.G.A. § 17-10-35(c)(1), (3) the court was
required to assure that Petitioner’s “death sentence was not imposed under the
influence of passion, prejudice, or any other arbitrary factor” as well as determine
“whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.” In

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performing its review under the statute, the court held that “[t]he imposition of a
death sentence in this case would not be excessive or disproportionate to penalties
imposed in similar cases, considering both the crime and the defendant.” Sears v.
State, 514 S.E.2d at 437. The court then listed seven cases that “would support the
imposition of the death sentence.” Id.
Petitioner contends that the Georgia Supreme Court’s proportionality review
was not sufficiently rigorous to make certain that Petitioner’s death sentence was
not arbitrarily imposed. This Court concludes that regardless of the manner in
which the state court carried out its proportionality review, Petitioner has no
§ 2254 claim regarding the review.
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court struck down
Georgia’s system of imposing the death penalty in part because of the random
nature in which the death penalty was imposed.
The basic concern of Furman centered on those defendants who were
being condemned to death capriciously and arbitrarily. Under the
procedures before the Court in that case, sentencing authorities were
not directed to give attention to the nature or circumstances of the
crime committed or to the character or record of the defendant.
Left unguided, juries imposed the death sentence in a way that could
only be called freakish.
Gregg v. Georgia, 428 U.S. 153, 206 (1976).

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The main focus of Furman was the fact that the decisionmakers – juries or
judges – in various state statutory death penalty schemes were not given adequate
guidelines under which to impose death. See Gregg, 428 U.S. at 195 (“Where the
sentencing authority is required to specify the factors it relied upon in reaching its
decision, the further safeguard of meaningful appellate review is available to
ensure that death sentences are not imposed capriciously or in a freakish
manner.”).
After Furman, the Georgia legislature passed a new death penalty statute that
the Supreme Court evaluated and approved in Gregg. The new statute included
proportionality review. In approving Georgia’s death penalty scheme, the
Supreme Court cited favorably to the proportionality review requirement as a
“provision designed to assure that the death penalty will not be imposed on a
capriciously selected group of convicted defendants,” Gregg, 428 U.S. at 204, and
noted that “[i]t is apparent that the Supreme Court of Georgia has taken its
[proportionality] review responsibilities seriously,” id. at 205. The Court also
noted:
The provision for appellate review in the Georgia capital-sentencing
system serves as a check against the random or arbitrary imposition of
the death penalty. In particular, the proportionality review
substantially eliminates the possibility that a person will be sentenced

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to die by the action of an aberrant jury. If a time comes when juries
generally do not impose the death sentence in a certain kind of murder
case, the appellate review procedures assure that no defendant
convicted under such circumstances will suffer a sentence of death.
Id. at 206.
This Court stresses, however, that proportionality review is not required by
the Constitution “where the statutory procedures adequately channel the
sentencer’s discretion,” McCleskey v. Kemp, 481 U.S. 279, 306 (1987) (citing
Pulley v. Harris, 465 U.S. 37, 50-51 (1984)), and Georgia’s statutory procedures
are adequate, Collins v. Francis, 728 F.2d 1322, 1343 (11th Cir. 1984) (“[I]t
appears clear that the Georgia [death penalty] system contains adequate checks on
arbitrariness to pass muster without proportionality review.”) (internal quotations
and citations omitted). As the proportionality review is not required by the
Constitution, it cannot be said that the Georgia Supreme Court’s conclusion that
Petitioner’s sentence was proportional was an unreasonable application of
constitutional law. See also Lindsey v. Smith, 820 F.2d 1137, 1154 (11th Cir.
1987) (“[W]e refuse to mandate as a matter of federal constitutional law that
where, as here, state law requires [proportionality] review, courts must make an
explicit, detailed account of their comparisons.”).

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For these reasons, the Court concludes that Petitioner is not entitled to relief
based on his Claim XI.
L.

Claims XII and XIII

The amended petition contained no Claim XII. In the order of April 8, 2016,
([37] at 59-60), the Court concluded that Petitioner’s Claim XIII – regarding the
constitutionality of his prolonged stay on death row – did not state a cognizable
§ 2254 claim.
M.

Claim XIV: The O.C.G.A. § 17-10-30(b)(7) Aggravating
Circumstance Violated Petitioner’s Rights

In his Claim XIV, Petitioner argues that his rights were violated when the
State failed to provide him notice before the trial that it intended to rely on the
statutory aggravating circumstance set forth in O.C.G.A. § 17-10-30(b)(7). That
provision permits the death penalty upon a jury finding that the offense was
“outrageous or wantonly vile, horrible or inhumane in that it involved torture,
depravity of the mind or an aggravated battery to the victim.” According to
Petitioner, prosecutors did not inform his trial counsel about their plan to request
that the trial court charge the (b)(7) circumstance until deliberations had begun at
the close of the guilt phase of the trial. The trial court agreed to charge the
circumstance over trial counsel’s objection.

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Petitioner argues that the late introduction of the (b)(7) circumstance without
charging it in the indictment violated the Supreme Court’s holding in
Jones v. United States, 526 U.S. 227, 229 (1999), that any fact (other than prior
conviction) that increases the maximum penalty for a crime must be charged in an
indictment.
The Georgia Supreme Court concluded that “[t]he trial court did not err in
permitting the jury to consider [the (b)(7)] aggravating circumstance. It is not
incumbent upon the state to notify a defendant before trial of every statutory
aggravating circumstance that it might seek to prove. Sears v. State, 514 S.E.2d at
435 (citing Roberts v. State, 314 S.E.2d 83 (Ga. 1984) and Bowden v. Zant, 260
S.E.2d 465 (Ga. 1979). Presumably because the Georgia Supreme Court cited to
state cases, Petitioner contends that the court failed to apply federal law and that
§ 2254(d) deference thus does not apply.
In Grim v. Sec’y, Fla. Dept of Corr., 705 F.3d 1284 (11th Cir. 2013), the
Eleventh Circuit confronted a claim materially identical to Petitioner’s Claim XIV.
The state court had denied relief on Grim’s claim on the basis that, because the
statutory aggravating factors were limited, there was no reason to require the state
to provide notice of which of the aggravating factors that it intended to prove. Id.

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at 1288. The Eleventh Circuit, applying § 2254(d), concluded that there was no
Supreme Court holding requiring the aggravating circumstance to appear in the
indictment.
Because there is no federal standard requiring statutory aggravating factors
to appear in the indictment, the Georgia Supreme Court’s conclusion was not the
result of an unreasonable application of federal law, and the Court concludes that
the state court’s holding is entitled to § 2254(d) deference.
The Court further notes that the jury unanimously found, beyond a
reasonable doubt, the presence of three other aggravating circumstances, any one
of which would support Petitioner’s death sentence, and Petitioner has not
challenged them. Even if the trial court erred in permitting the jury to consider the
(b)(7) aggravating circumstance, any error was harmless. See Vieux v. Warden,
616 Fed. Appx. 891, 898 (11th Cir. 2015) (noting that Jones-based errors are
subject to harmless error review).
N.

Claim XV

In the order of April 8, 2016, ([37] at 60-62), this Court concluded that
Petitioner’s Claim XV – regarding the constitutionality of lethal injection as a
method of execution – is not cognizable under § 2254 and dismissed the claim.

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O.

Claim XVI: Cumulative Error

Finally, in his Claim XVI, Petitioner raises a claim of cumulative error,
asserting that when all of the constitutional errors from his trial are viewed
cumulatively, they cannot be deemed harmless, as they deprived Petitioner of a
fundamentally fair trial.
“The cumulative error doctrine provides that an aggregation of nonreversible errors (i.e., plain errors failing to necessitate reversal and
harmless errors) can yield a denial of the constitutional right to a fair
trial, which calls for reversal.” United States v. Baker, 432 F.3d 1189,
1223 (11th Cir. 2005) (internal quotation marks omitted). We address
claims of cumulative error by first considering the validity of each
claim individually, and then examining any errors that we find in the
aggregate and in light of the trial as a whole to determine whether the
appellant was afforded a fundamentally fair trial. See United States v.
Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012).
For this Court to perform a cumulative-error analysis, there must be multiple
errors to analyze. The only error that this Court has identified is the due process
violation committed by the trial court when the court required Petitioner to comply
with the requirements of Sabel v. State, 282 S.E.2d 61 (Ga. 1981), and as discussed
above, see supra § III.B, Petitioner failed to demonstrate that he was prejudiced by
that error. Accordingly, Petitioner is not entitled to relief for his Claim XVI.

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IV.

Conclusion
For the reasons stated above, the Court concludes that Petitioner has failed to

establish that he is entitled to relief under 28 U.S.C. § 2254. Accordingly, the
petition for a writ of habeas corpus is DENIED, and the instant action is
DISMISSED.
Pursuant to Rule 11 of the Rules Governing § 2254 Cases this Court must
“issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.”
After review, the Court concludes that a Certificate of Appealability shall
issue as to Petitioner’s Claim I, but limited to his claim that his trial counsel was
ineffective during the penalty phase of his trial, Claim II regarding the trial court’s
Sabel order, Claim III regarding Petitioner’s assertions of juror misconduct, and
Claim XIV regarding the use of statutory aggravating circumstance set forth in
O.C.G.A. § 17-10-30(b)(7) without pretrial notice to Petitioner.

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SO ORDERED this 23rd day of May, 2018.

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