O'Kelley v. Warden

Filing 124

ORDER denying Petitioner his 1 Petition for Writ of Habeas Corpus, dismissing as moot the 123 MOTION Requesting Ruling on Petitioners Petition for Writ of Habeas Corpus, denying a Certificate of Appealability for any of Petitioner's claims, and directing the Clerk of Court to close this case. Signed by Judge William T. Moore, Jr on 05/22/2023. (jlh)

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 1 of 193

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

DORIAN FRANK O'KELLEY,

Petitioner,
CASE NO. CV415-104

V.

WARDEN, Georgia Diagnostic
Prison,

Respondent.

ORDER

Before

the

Court

is

Petitioner

Dorian

Frank

O'Kelley's

Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc.
1.) After careful consideration of the parties' briefings (Docs.

109, 111, 112), Petitioner's petition (Doc. 1) is DENIED.^ The
Clerk of Court is DIRECTED to close this case.

BACKGROUND^
I.

UNDERLYING CRIME

The facts of Petitioner's underlying criminal case were set
forth by the Supreme Court of Georgia:

[S]hortly before midnight on April 10, 2002, O'Kelley
and his co-defendant, Darryl Stinski, were observed at

^
Accordingly,
Respondent's
Motion
Requesting
Ruling
on
Petitioner's Petition for Writ of Habeas Corpus (Doc. 123) is
DISMISSED AS MOOT.

2 The factual findings of both the state habeas court and Supreme
Court of Georgia are presumed to be correct unless they are
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (per
curiam).

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 2 of 193

a

convenience

officers.

The

store

by

officers

two

noticed

Chatham
the

County

defendants

police
because

they were dressed in black clothing, they carried a black
duffle bag that appeared empty, and Stinski had several
facial and ear piercings. Shortly after O'Kelley and
Stinski left the store, the officers responded to a
burglar alarm at a residence within walking distance of
the

store

and

discovered

a

broken

window

there.

The

occupant of the residence, who was not home at the time,
testified at trial that she returned to find that someone

had apparently tried to kick in her back door and had
broken a window and bent the curtain rod inside the home.

O'Kelley admitted in his first statement to police that
he and Stinski went to a residence in order to commit a

theft therein on the night in question but fled after
the alarm went off.

A few hours later, at approximately 5:30 a.m. on April
11, ■ the
same
police
officers
were
leaving
the
convenience store when they spotted a fire in the
distance. Rushing to the scene, they found the Pittman
residence engulfed in flames. This home was in close
proximity to the residence which had been burglarized
earlier. In the headlights of the police car, one of the
officers again observed O'Kelley and Stinski, this time
standing in a wooded area across the street from the
burning house. However, they had disappeared by the time
the

officers

exited

the

vehicle.

Once

the

fire

was

extinguished, officials discovered the remains of the
victims.

That evening, O'Kelley and Stinski brought a duffle bag
to the mobile home where Stinski was staying, and
O'Kelley told the group of people present that he and
Stinski

had

stolen

items

from

automobiles

in

the

neighborhood. He also confided in one member of the group
that he had burglarized and set fire to the Pittman
residence, and he claimed to have slit Ms. [Susan]
Pittman's throat and to have raped Kimberly [Pittman].
O'Kelley then removed from his wallet a tooth in a
ziplock bag and stated that he had ''busted it out of the

little girl's mouth." After O'Kelley and Stinski left
the mobile home, the group opened the duffle bag and
discovered several items, including compact discs marked
with Kimberly's initials and prescription pill bottles
containing oxycodone with Ms. Pittman's name and address
on the labels. A group member phoned the police and

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 3 of 193

advised them of the bag's contents and O'Kelley's
comments. After the contents of the bag were identified
by a family member as belonging to the victims, 0'Kelley
and

Stinski

were

arrested,

and

a

human

tooth

later

determined through DNA evidence to belong to Kimberly
was found inside O'Kelley's wallet.

In his second statement to police, O'Kelley confessed to

killing Ms. Pittman by repeatedly beating and stabbing
her, to beating and stabbing Kimberly, to setting the
Pittman residence on fire while Kimberly was still
alive, and to taking numerous items from the residence.
0'Kelley told police that items stolen from the home and
from automobiles in the neighborhood were located in the
attic of his house and that he had discarded the clothing
and shoes that he was wearing during the murders in a
garbage bag on top of an abandoned mobile home near his
house. Police located these items as 0'Kelley described.
Blood on the clothing was identified as Ms. Pittman's,
and blood on the shoes was identified as that of both
victims.

Four
witnesses testified that, early on the day
following the murders, they discovered that someone had
broken into and removed personal belongings from their
automobiles
parked
in
O'Kelley's
neighborhood.
O'Kelley's fingerprint was found inside one of these •
vehicles, and the witnesses identified their stolen
property from items recovered by the police from
O'Kelley's attic.
0'Kelley v. State, 284 Ga. 758, 759-60, 670 S.E.2d 388, 392-93
(2008).
II.

PRETRIAL PROCEEDINGS

Petitioner was arrested on April 12, 2002. (Doc. 32, Attach.
3 at 19.) On

June 5, 2002, Petitioner was indicted in Chatham

County, Georgia, for two counts of malice murder, two counts of
burglary, one count of cruelty to children in the first degree,
two counts of arson in the first degree, five counts of entering

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 4 of 193

an

automobile,

and

one

count

of

possession

of

a

controlled

substance with intent to distribute. (Doc. 11, Attach. 1 at 42-

46.) The prosecution filed a notice of intent to seek the death

penalty on June 17, 2002. (Id. at 52-53.) Due to Petitioner's
indigent

status,

the

trial

judge

appointed

attorneys

Michael

Edwards and Steven Beauvais to represent Petitioner.^ (Doc. 11,
Attach. 1 at 20; Doc. 11, Attach. 11 at 76.) Brian L. Daly also

assisted with Petitioner's legal defense, first in a volunteer

capacity and later as a court-appointed investigator. (Doc. 11,
Attach. 12 at 9-10, 50; Doc. 39, Attach. 4 at 263-64.) For purposes
of this order, the Court will refer to Petitioner's three attorneys

collectively as ^'trial counsel."

Petitioner's mental condition and symptoms varied during his
pretrial incarceration. On April 24, 2002, Dr. R.M. Manzo noted
that Petitioner had a depressive/psychotic disorder not otherwise

specified (^"NOS") and recorded the presence of psychosis, suicidal
intent, and serious impulsivity. (Doc. 39, Attach. 6 at 28.) On

April 26, 2004, Dr. Robert Stockfisch reported that Petitioner had

a mood/psychotic disorder NOS. (Id. at 226.) On July 26, 2004, Dr.
Stockfisch referred Petitioner to ^'medical service for complaints

[consistent with] temporal lobe seizure [disorder.]" (Id. at 260.)

3 Richard Darden was initially appointed to represent Petitioner
but was permitted to withdraw in March 2003. (Doc. 11, Attach. 19
at 37; Doc. 49, Attach. 18 at 15-43.)

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As

a

result

Petitioner's

of

the

variability

medications,

of

including

his

mental

condition.

prescriptions

for

antipsychotic drugs and antidepressants, were frequently adjusted
as his symptoms changed. (E.g., id. at 28, 60, 95, 135, 142, 219,
260, 284, 310.)

Petitioner's behavior also varied greatly. On one instance.

Petitioner was reported taking the stuffing out of his mattress to
^^create[e] his world[,]" and on another, he had to be placed in a
restraint chair after attempting to flood his cell and then hang

himself. (Id. at 61, 244.) Petitioner attempted suicide multiple
times while awaiting trial, once on April 22, 2002, and later on

July If 2004. (Id. at 17-20, 244.) On several occasions in July
2004,

Petitioner

also

attempted

to

cut

himself

and

expressed

suicidal intentions. (Id. at 244, 247, 249, 252.) In March 2005,

Dr. Stockfisch reported that Petitioner appeared psychiatrically
stable on his regimen at that time. (Id. at -294.) However, as
Petitioner's trial approached, he reported increased anxiety. (Id.
at

284,

310.)

As

a

result.

Dr.

Stockfisch

recommended

that

Petitioner should be closely monitored. (Id. at 294.)
III. VOIR DIRE

Initial juror qualification began on October 21, 2005, and
Petitioner

and trial counsel faced long hours throughout jury

selection. (E.g., Doc. 24, Attach. 23 at 1-3; Doc. 30, Attach. 1

at 3.) On October 24, 2005, during individual voir dire, trial

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 6 of 193

counsel notified the trial judge that Petitioner was being treated
with

medication,

and

the

trial

judge

made

arrangements

for

Petitioner to timely receive his doses on the days they worked
irregular hours. (Doc. 26, Attach. 1 at 1; Doc. 26, Attach. 3 at
25-26; Doc. 26, Attach. 4 at 10-11.)

By Friday, October 28, 2005, trial counsel told the trial
judge that they were exhausted. (Doc. 30, Attach. 1 at 3.) Trial
counsel also informed the trial judge that Petitioner was similarly
affected; he was not accustomed to the pace and was ^'having a

difficult

time

with

the

process[.]"

(Id.)

They

explained

Petitioner was ^"drained" and ""not getting any sleep." (Id.) Later

that afternoon, during an ex parte hearing outside of Petitioner's
presence, trial counsel alerted the trial judge that they had
^^grave concerns about [Petitioner's] wellbeing and welfare[,]" and

that they were ^^extremely concerned about his state of mind and
his wellbeing[.]" (Doc. 49, Attach. 18 at 153.) Trial counsel asked
the trial judge to direct jail staff to ensure Petitioner was

closely monitored. (Id. at 153-54.) Trial counsel also explained
Petitioner's absence from the hearing was due to concerns about

preserving trust between him and the defense team. (Id.) After the
trial

judge

expressed

concern

over

Petitioner's

absence.

Petitioner was brought into the courtroom, and he waived his right

to be present for ^'ex parte discussions" from ''time to time,"
although

no

further

description

was

given

about

what

those

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 7 of 193

discussions

would

concern. (Id.

at 154-57.) After

waiving

his

presence, Petitioner was again removed from the courtroom, and the
trial judge explained an individual, presumably from the jail, was

coming to discuss supervision of Petitioner because the trial judge
^Vant[ed] [Petitioner]

under

constant

watch." (Id.

at 157-58.)

Trial counsel hoped to avoid having Petitioner placed in isolation
but were interested in Petitioner receiving regularly scheduled

checks. (Id. at 158.) They also asked the Court to consider ''a
completion of the psych eval[uation] . . ." and to ""arrange to

have the psychiatrist stop in as a routine procedure, given the
type of case." (Id.) The trial judge agreed, expressing that he

""want[ed] a psychiatrist, not a psychologist." (Id.) The trial
judge

then

made

a

call

where

he

instructed

jail

staff

that

Petitioner needed ""to be under constant watch" and evaluated by

the jail psychiatrist. Dr. Stockfisch, immediately. (Id. at 160-

61.) Later that day, during another ex parte discussion, the trial

judge alerted trial counsel that jail personnel had informed him
Petitioner could not be evaluated until Monday, October 31, 2005.
(Id. at 167.)

The next day, Saturday, October 29, 2005, individual voir
dire continued. (Doc. 31, Attach. 1 at 1.) During another ex parte
discussion without Petitioner present, the trial judge wanted to
have a ""conversation about [Petitioner's] state[]" since he could

not be evaluated until Monday. (Doc. 49, Attach. 18 at 167.) The

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 8 of 193

trial judge expressed that Petitioner appeared to him to be stable,
cooperative, and able to communicate with trial counsel. (Id.) The

trial judge inquired whether trial counsel wanted Petitioner to be
examined ^'just to be on the safe side," which they confirmed was
the case. (Id.) Since Dr. Stockfisch could not evaluate Petitioner

until Monday, trial counsel proposed and the trial judge agreed
the psychologist trial counsel had utilized for trial, who already

had a relationship with Petitioner, would conduct a preliminary
evaluation. (Id. at 167-69.)

Trial counsel took notes

regarding

what

Dr.

Daniel Grant

conveyed about his evaluation of Petitioner. Trial counsel noted
Petitioner was evaluated as being ^'acutely suicidal" but did not
want to admit it; he was focused on his family and how bad it was

for them; and he was ^^struggling with his wish to die for his
crime" as well as ""his desire to not be a bad person[.]" (Doc. 39,

Attach. 9 at 52.) Petitioner was not sleeping, he was pacing, and

he was having nightmares when he did sleep. (Id.) Trial counsel
annotated that Petitioner was ^'on verge of psychotic break > thinks
he will just shut down." (Id.) Trial counsel indicated Dr. Grant

thought ""Prozac [was] not necessarily [the] right medicine because

it has an energizing quality that is moving him toward manic
state[,]" and that Petitioner needed something to sleep. (Id.)
Trial counsel noted Dr. Grant's suggested medications. (Id.)

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 9 of 193

On October 31, 2005, the trial judge held another ex parte

hearing outside of Petitioner's presence as voir dire continued.
(Doc. 31, Attach. 4 at 1, 13; Doc. 49, Attach. 18 at 170.) Trial

counsel conveyed to the trial judge that the psychologist had met
with Petitioner and indicated ""there was some expression of some
suicidal ideation, but . . . did not believe . . . the situation
was

dire[.]"

psychologist

(Doc.

did

49,

not

Attach.

believe

18

a

at

171.)

medication

Although

the

adjustment

was

necessary, he expressed the importance of Petitioner getting sleep
and suggested a mild medication to help him do so. (Id.) Trial
counsel

were

Petitioner's

wary

of

making

medication

that

any

significant

would

require

adjustment

to

a

of

period

acclimation. (Id.) The trial judge made the following inquiry:
The Court: As far as being able to communicate with
counsel, has he been able to do that without any problem,
to be able to tell you what his - his impressions are,
and to be able to assist you in his defense. Is that
right?
Mr. Edwards: Yes, sir. I — I — I don't — I have not

seen or experienced any difficulty in that fashion, and
neither have Mr. Beauvais and Mr. Daly. Correct?
Mr. Daly: Correct.

(Id. at 171-72.) Nevertheless, ""[o]ut of an abundance of caution,"

the trial judge asked Dr. Arnold Tillinger, a psychiatrist he had
known for number of years, to give an- assessment as well. (Id. at

172.)

In

response,

psychologist's

primary

trial
concern

counsel
was

to

reiterated
ensure

that

Petitioner

the
was

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 10 of 193

sleeping "''because of the stress of the trial and long days[,]"
since the sleep deprivation only aggravated Petitioner's other
issues. (Id. at 173.) After some discussion regarding scheduling,

the trial judge and trial counsel resolved to have Dr. Tillinger
evaluate Petitioner later that day after the jury was selected.
(Id. at 172-75.)

After

the

jury

was

selected.

Dr.

Tillinger

examined

Petitioner to determine whether he was competent to stand trial,
understood the nature of the proceedings, and could assist counsel
with his defense. (Doc. 31, Attach. 9 at 35-36; Doc. 50, Attach.

1 at 195.) Dr. Tillinger submitted a handwritten report to the

trial judge in which he wrote that he examined Petitioner at the
courthouse .at 5:00 p.m., no records were made available to him,
and

his

conclusions

were

based

solely

on

his

interview

of

Petitioner. (Doc. 50, Attach. 1 at 197.) Dr. Tillinger opined that

Petitioner was competent at that time to stand trial and assist
his attorneys in preparing and presenting his defense. (Id.) Dr.

Tillinger noted Petitioner was experiencing symptoms of depression
including

suicidal

thoughts

and

wishes.

(Id.)

Dr.

Tillinger

recommended additional medication to Dr. Stockfisch, who agreed to
call in new medication that night. (Id.)
IV.

GUILT PHASE OF TRIAL

On November 1, 2005, before the guilt phase of Petitioner's

trial began, the trial judge asked Petitioner for permission to
10

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 11 of 193

speak with trial counsel outside of his presence regarding Dr.
Tillinger's review, and Petitioner acquiesced. (Doc. 31, Attach.
11 at 1, 4.) Thereafter, the trial judge informed trial counsel

that Dr. Tillinger had determined Petitioner was competent to stand
trial and that nothing would prevent him from assisting counsel in
his

defense,

despite

noting

Petitioner's

previously

observed

suicidal intentions. (Id. at 4-5.)

The trial judge also conveyed that Dr. Tillinger had suggested

a medication adjustment for Petitioner, which Dr. Stockfisch had

already prescribed. (Id.) Trial counsel, in turn, updated the trial
judge regarding the medication adjustment. (Id. at 5.) Although
the

medication

helped

Petitioner

sleep,

it

made

him

want

to

continue sleeping. (Id.) Therefore, Petitioner ""refused the new
medication this morning[.]" (Id.) Trial counsel concurred with
Petitioner's refusal to ""take that medication during the day[,]"

since they were concerned about him sleeping in court and being
able to appreciate and understand the proceedings. (Id. at 5-6.)
Trial counsel requested Dr. Tillinger's phone number to ""make sure
[their] concerns were known to them." (Id. at 6.)

Thereafter, the guilt phase of trial began. (Id. at 12.) Among
other pieces of evidence, the State played

Petitioner's tape-

recorded interviews with police. (Doc. 32, Attach. 6 at 53-69;
Doc. 32, Attach. 7 at 1-7, 11-28.) In addition to other witnesses,

the State also presented John Allen ""Trent" Owens, Petitioner's
11

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 12 of 193

neighbor and friend to whom he confessed about the crimes. (Doc.
32, Attach. 1-at 41-70.) Additionally, the State had Officer Robert
Von Loewenfeldt read a letter Petitioner wrote to fellow inmate

Christopher Bowen describing the crimes in graphic detail. (Doc.
33, Attach. 1 at 67-69; Doc. 33, Attach. 2 at 1-20.) The Supreme

Court of Georgia summarized these critical pieces of evidence:

According to O'Kelley's statement to police, while
[c]omplete[ly] sober," he and Stinski turned off the
power to the Pittmans' house and broke into the home
sometime after midnight, where, by the light of a
flashlight, O'Kelley beat his own neighbor with a cane
as she lay asleep in bed while her young daughter,
guarded by Stinski, listened, terrified, in the next
room. When "[Ms. Pittman] wouldn't die," O'Kelley sent
Stinski outside with Kimberly to turn the power back on
so he could see to kill her. O'Kelley admitted

"stabb[ing]

Ms.

Pittman

repeatedly

with

a

knife

retrieved from the Pittmans' kitchen, cut[ting] at her
[as s]he tried to fight back . . . [and as she] ask[ed

him], ^Why? Why?' " O'Kelley told the police that there
was "[a] lot of stabbing, cutting, hitting, and fighting
for about an hour" before he finally slit Ms. Pittman's
throat to make her die. After O'Kelley had murdered her
mother, Stinski took Kimberly upstairs and tied her up,

and O'Kelley "sat there on the bed and . . . smoked one
of" Ms. Pittman's cigarettes before washing the blood
off himself in the bathroom. Then he drank a ginger ale
he

found

in

the

kitchen

to

calm

his

nausea

and

went

"around the house collecting stuff, throwing stuff in
the bags." Eventually deciding to
kill Kimberly

together, O'Kelley and Stinski beat her in the head with
a baseball bat, stabbed her repeatedly, threw bricks at
her, and slit her throat as the child, clad only in a
shirt, kneeled helplessly on her knees. Finally, knowing
that "[Kimberly] was still alive and breathing when
[they] left the room" but that "[s]he was just unable to
move[,]" O'Kelley helped set the Pittman residence on
fire, leaving her to burn alive. The evidence at trial
showed that O'Kelley bragged about his crimes to a
friend, claiming to have raped Kimberly, calling it
"special" and "just for him," and showing off like a
12

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 13 of 193

trophy the tooth he knocked out of Kimberly's mouth. The
evidence

further showed that, after his arrest and
incarceration, O'Kelley boastfully detailed in a twenty-

four

page

letter

to

a

fellow

inmate

his

part

in

Kimberly's torture and murder.
O'Kelley, 284 Ga. at 770-71, 670 S.E.2d at 399-400.

In the defense's opening statement, trial counsel explained
that they aimed during the first phase of trial to give the jury
a guide for the second phase of trial as to why the crimes happened.
(Doc. 31, Attach. 12 at 6-7.) For example, trial counsel began to

elicit information about Petitioner's home life by highlighting
that his brothers were home alone at 3:30 a.m. when he was arrested

and that the house was in disarray. (Doc. 32, Attach. 4 at 3, 8-

9.) Mr. Owens and Larry Gray, whose nickname was ^^Secret Squirrel,"
also

testified

about

how

Petitioner

introduced

the

idea

of

an

''insanity party," which was purportedly the countdown to the day
that he said he would be declared legally insane. (Doc. 32, Attach.
1 at 67-70, 72;

Doc.

32, Attach. 2 at 23-24.) Trial counsel

highlighted how this was an odd request. (Doc. 32, Attach. 2 at 4,
23-24.) Trial counsel also attempted to show the letter to Mr.

Bowen was a "complete fabrication[,]" and that much of Petitioner's

confessions to police and friends was an exaggeration of the actual
events. (Doc. 33, Attach. 4
medical

counsel

examiner

who

highlighted

at 4-5.) When cross-examining the

conducted

the

discrepancies

13

victims'

autopsies,

between

trial

Petitioner's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 14 of 193

descriptions of the crimes in his letter to Mr. Bowen and the
physical evidence. (E.g., Doc. 32, Attach. 8 at 20, 42-43, 45.)

Before hearing closing arguments at the end of the guilt
phase,

the

trial

judge

questioned

Petitioner

to

ensure

he

understood his rights and decision not to testify. (Doc. 33,
Attach. .2 at 33-34.) Petitioner responded to the trial judge's

questions. (Id.) The trial judge also had Petitioner take the stand

and respond to a similar question under oath. (Doc. 33, Attach. 3
at 1-2.)

On November 3, 2005, the jury found Petitioner guilty of two
counts of malice murder, two counts of burglary, one count of

cruelty to children, two counts of arson in the first degree, and
five counts of entering an automobile. (Doc. 13, Attach. 10 at 15;
Doc. 13, Attach. 11 at 1-3.) The jury found Petitioner not guilty

of possession of a controlled substance with intent to distribute

but guilty of the lesser included offense of possession of a
controlled substance. (Doc. 13, Attach. 11 at 2.)
V.

SENTENCING PHASE OF TRIAL

At the start of the sentencing phase. Petitioner opted against

wearing civilian clothing. (Doc. 33, Attach. 6 at 4-6.) The trial
judge cautioned Petitioner that he thought dressing in a jail
uniform conveyed ""a very bad impression" and urged Petitioner to
reconsider.

(Id.

at

4-5.)

After

conferring

with

counsel.

Petitioner responded that he had ^Miscussed this decision with
14

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 15 of 193

[his]

attorneys[,]" understood

that

he

had

^'been

convicted

of

murder[,]" and expressed his preference to wear his jail uniform
from then forward. (Id. at 5.) After the trial judge indicated

Petitioner had no right to appear in prison clothes, trial counsel
urged the trial judge to allow Petitioner to wear what he felt was

most comfortable given the stress he faced as the individual being
sentenced. (Id. at 5-6.) Ultimately, the trial judge permitted
Petitioner to forgo civilian clothes, noting that Petitioner made
the choice ^^on his own[.]" (Id. at 6.)

After

that

exchange,

the

sentencing

phase

began.

Trial

counsel called 22 witnesses to testify during the sentencing phase
of

trial.

Trial

Richardson,

counsel

child

Petitioner's

called

protective

former

mental

mitigation

services
health

investigator

(^"CPS")

providers

case
and

Linda

workers.
teachers,

attorneys that interacted with Petitioner's family, and his father
and

brothers.

ineffective

Because

and

Petitioner

should

have

claims

his

investigated

trial

and

counsel

presented

were

more

evidence about his mental health and background, the Court will
recount what trial counsel presented in some detail.
A.

Mitigation Investigator

Ms. Richardson testified as an expert in the field of social
work and preparation of psychosocial histories. (Doc. 33, Attach.
8 at 1.) Trial counsel retained Ms. Richardson, who was local to

the area, as a substitute mitigation investigator for Jeff Yungman
15

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 16 of 193

and Paige Tarr. (Doc. 49, Attach. 18 at 97; Doc. 50, Attach. 1 at
126.)

Ms.

Richardson

was

a

retired

20-year

employee

of

the

Department of Family and Children Services (^^DFACS") and licensed
clinical social worker. (Doc. 33, Attach. 7 at 40-41, 45-46.) At

the

time

of

Petitioner's

trial,

Ms.

Richardson

performed

psychosocial history assessments for DFACS on a contract-basis.
(Id.

at

40,

47-48.)

Ms.

Richardson

explained

conducting

a

psychosocial history of an individual was like ^'writing a biography
of that family" and ''would include everything from the time that

they were born up until the time you were working with them." (Id.
at 48-49.) Ms. Richardson was involved in investigating thousands

of child abuse cases during her time with DFACS and had testified
in court for work between 100-125 times. (Id. at 44-45, 49-50.)

Ms. Richardson compiled a psychosocial history on Petitioner.
(Doc. 33, Attach. 8 at 2.) To perform this role, she interviewed
31 different people - 11 of them twice - although she never met
Petitioner. (Id. at 1, 4.) She also reviewed divorce records,

school records, psychiatric hospital records, and CPS records.
(Id. at 4-6.)

Ms.

Richardson

identified

three

distinct

time

periods

in

Petitioner's life: his time growing up in Texas; his time after he

moved back to Georgia; and what was happening in the time period
around

the

trial.

(Id.

at

3.)

Ms.

Richardson

conveyed

that

Petitioner was born in 1981 to John O'Kelley and Carolyn English,
16

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 17 of 193

who were divorced by 1984. (Id. at 9, 11.) Petitioner's father had

a

history of depression

and a suicide

attempt. (Id. at 10.)

Petitioner's mother had a hard life growing up, and her struggles
continued

after

Petitioner's

birth.

(Id.

at

9.)

Petitioner's

mother suffered from depression and anxiety. (Id. at 30.) After

divorcing his father. Petitioner's mother frequently moved the

family, including moves from the Atlanta area to Savannah and
eventually to Dallas, Texas, after she married Lawrence Gilbert
Cosson (^^Petitioner's stepfather") in 1986, with whom she had
Petitioner's brother Lawrence Gilbert Cosson, II (^^Gilbert"). (Id.
at 16-20.)

Ms. Richardson discussed the physical abuse, sexual abuse,

and neglect that Petitioner suffered at the hands of his family
members. In August 1983, Petitioner's mother left a 20-month-old
Petitioner and other children in a locked car for two hours when

she was visiting an attorney's office. (Id. at 11-13.) Police and
EMS were called. Petitioner had to be taken to the hospital, and
Petitioner's mother was charged with reckless conduct. (Id. at

12.) When Petitioner was six years old. Petitioner and his family
resided at a battered women's shelter in Texas called ^^The Family

Place"

because

Petitioner's

stepfather

physically

abused

Petitioner's mother and verbally, physically, and sexually abused
Petitioner. (Id. at 19-21, 24-25, 35.) Reading a letter from The

Family

Place,

Ms.

Richardson
17

recounted

that

Petitioner's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 18 of 193

stepfather

''used

ridicule

and

over-disciplined"

Petitioner,

"involved him in parental arguments, . . . spanked him several

times daily, sometimes shook him, deliberately stepped on his hands
with [leather] shoes when he was playing[,]. . . . isolated him[,]

and put him in his room for extended periods of time." (Id. at
24.)

Petitioner

exhibited

"out

of

control,

inappropriate"

behavior, hit other children, and touched peers and staff in a
sexual manner. (Id.) Ms. Richardson explained that Petitioner's
behavior led workers at The Family Place to believe that Petitioner
had been sexually abused by his stepfather. (Id. at 26.) Later,

CPS referrals were made regarding sexual abuse to Petitioner and
neglect of Gilbert. (Doc. 33, Attach. 9 at 13-14.)
Ms. Richardson also described the early onset of Petitioner's
intellectual

disabilities.

Petitioner

attended

school

at

White

Rock Elementary in Dallas, where he was frequently absent. (Doc.
33, Attach. 8 at 49-50.) On top of his absences, he had a "very

difficult

time

in

first

grade[,]"

was

referred

for

special

education, had learning disabilities, and ultimately had to repeat

the first grade. (Id.) Petitioner was forced to frequently change
schools and remained in special education classes. (Doc. 33,
Attach. 9 at 1-7.) With no one other than Petitioner's mother to
take him to school, he continued to accumulate a high number of

absences.

(Id.)

According

to

Ms.

Richardson,

Petitioner's

absenteeism continued into junior high school. (Id. at 12.)
18

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 19 of 193

Ms. Richardson further introduced the jury to Petitioner's
psychiatric

issues.

After

a

brief

stint

back

in

Georgia,

Petitioner's mother again moved the family to Texas in 1994 and

began a relationship with Ronnie Smith, a man with a criminal
record and the father of Petitioner's youngest brother, Ronnie
Simon Smith (^"Simon"). {Doc. 33, Attach. 9 at 7-9; Doc. 14, Attach.
13 at 12.) Ms. Richardson testified that Petitioner, who was only

13 years old at the time, attempted to hang himself in front of

Gilbert

and

was

(^^Springwood"),

hospitalized
a

at

psychiatric

Harris

hospital,

Methodist
between

Springwood

November

and

December 1994. (Doc. 33, Attach. 9 at 10-11.) After another suicide

attempt less than two years later. Petitioner was hospitalized at
Presbyterian Hospital of Piano in the Seay Behavioral Health Center
from September 8, 1996, until October 3, 1996. (Id. at 13.)
B.

Child Protective Services Case Workers

Trial counsel presented testimony of two CPS workers who had
interactions with Petitioner and his family in Texas and Georgia.

Susan Connelly was the CPS caseworker assigned to Petitioner's

family in 1994 and 1995 in Dallas to investigate physical and
sexual abuse of Petitioner and physical neglect of Gilbert. (Doc.

33, Attach. 10 at 29-30, 32-33.) Ms. Connelly's November 1994

investigation

corresponded

hospitalization

in

with

Springwood.

Petitioner's
(Id.

at

1994

32-33.)

psychiatric

Ms.

Connelly

testified she received reports that Petitioner's stepfather ''made
19

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 20 of 193

him have anal intercourse with him" and ""would humiliate him by

putting

food

down

his

underwear." (Id.

at

32.)

Ms.

Connelly

described Gilbert's appearance as dirty and unkempt, and she had

received reports he frequently had no lunch or lunch money. (Id.
at 35-36.) Gilbert also reported to Ms. Connelly that the home was

filthy and lacked electricity, and there was rotting food. (Id. at
34.) In February 1995, Ms. Connelly again received reports about

physical neglect, including that Gilbert had chronic, untreated
lice. (Id. at 39-40, 42.) In May 1995, Ms. Connelly received
reports of sibling abuse by Petitioner. (Id. at 44.) When she spoke
to Gilbert, he reported again that they did not have electricity,
the house was dirty, the food in the house was stinking, and they
were unsupervised to the extent that they were able to break into
an abandoned building. (Id. at 45-46.) He also reported to her
that

Petitioner

""everything."

was

(Id.

the

one

at

45.)

in

the

Ms.

household

Connelly

who

had

testified

to

do

that

Petitioner's mother never responded to attempts to contact her and
eventually the CPS case was closed. (Id. at 37-38, 41, 49.)
Paulette Griffin was a CPS worker in Georgia who investigated
Petitioner's mother after Petitioner's arrest in 2002. (Id. at 64,

66.) Ms. Griffin gathered information concerning the hygiene of
both of Petitioner's brothers. (Doc. 33, Attach. 11 at 4.) Ms.
Griffin testified that Gilbert had been kicked out of school for

hygiene issues, and Simon had issues with lice. (Id. ait 4, 6.) Ms.
20

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 21 of 193

Griffin explained that Simon reported he and his siblings could

not sleep in the beds in the home because they were infested with
fleas, which Ms. Griffin confirmed when she conducted a"home visit.
(Id. at 3, 17.) Ms. Griffin testified that there was neglect in
the home. (Id. at 31.) Trial counsel introduced pictures of Ms.

Griffin's inspection of the home, and she described that she saw

overflowing

trash,

exposed

electrical

wires,

extension

cords

running near wet clothing, and started "feeling itchy" just being
in the home. (Id. at 11-12, 14, 15, 20.) Ms. Griffin also testified
that Petitioner was the primary caretaker. (Id. at 31.)
C.

Mental Health Treatment

Trial counsel presented several mental health professionals

who treated Petitioner during his psychiatric hospitalizations in
Texas and Georgia, teachers who intervened to have Petitioner

placed in a school for emotionally disturbed children, and teachers
and providers who interacted with him while he was at that school.
Charles

Nabors

worked

as

an

adolescent therapist

and

treated

Petitioner at Springwood in Texas in 1994. (Doc. 33, Attach. 11 at
41, 43-44.) Mr. Nabors testified that Petitioner was referred to

Springwood from a runaway shelter after he tried to hang himself
with his shoelaces at 13 years old. (Id. at 43, 50, 53.) Mr. Nabors

explained

that

Petitioner's

case

was

memorable

because

of

Petitioner's "acting out" and his mother's lack of involvement in
his care. (Id. at 48, 56.) Mr. Nabors recalled that Petitioner
21

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 22 of 193

would bang his head against the walls, attempted to stab himself

in the leg with a pen, and was ""in and out of seclusion and
restraints[.]" (Id. at 51-52.) According to Mr. Nabors, Petitioner

eventually divulged that he was sexually abused by his stepfather

and resisted being placed in restraints because it ^^reminded him
of being tied

down by his stepfather

when

he [was] sexually

abused[.]" (Id. at 52-53.) Mr. Nabors testified there were times

when

Petitioner

expressed

guilt

and

shame

for

being

abused,

explaining this was common for victims. (Id. at 68.) Mr. Nabors
also explained it was ^Very common" for young victims of abuse to

wait to report it until later in life because ^^[t] hey're usually
so riddled with guilt, feeling ashamed, they don't know who to
turn

to[.]" (Id.

at

68.)

Mr.

Nabors

further

testified

that

Petitioner reported ^^command hallucinations, where he was being
told to do something and was saying that he was hearing the voice
of his stepfather[.]" (Id. at 53.) Mr. Nabors stated that Dr.
Ronald Rebal, Petitioner's attending psychiatrist at Springwood

who had since passed away, diagnosed him at discharge with major

depression, single episode; nicotine dependence; and borderline

personality disorder. (Doc. 33, Attach. 11 at 59, 69; Doc. 33,
/

Attach. 12 at 1.)

Next, Gary Lee Goldsmith testified about his involvement with
Petitioner's treatment as a counselor therapist at Springwood.

(Doc. 33, Attach. 12 at 9-10.) Mr. Goldsmith testified that he
22

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 23 of 193

observed a ''partnering dynamic" between Petitioner and his mother
during a group counseling session. (Id. at 12-13.)

During the

session, Mr. Goldsmith recalled that mother and son participated

"very little" within the group and talked with each other instead.
(Id.

at

13.)

Mr.

Goldsmith

explained

this

was

the

"kind

of

communication you would see between two adolescents[,]" and it was
"[v]ery rarely the kind of communication that [he] would see in a
multi-family group between a parent and a child." (Id. at 14.) Mr.
Goldsmith indicated their interaction seemed "overly bonded" and

"inappropriate." (Id.) Based on Mr. Goldsmith's earlier graduate
work. Petitioner and his mother's dynamic left Mr. Goldsmith with
the impression there was "emotional incest" in the relationship.
(Id. at 14-15.) Mr. Goldsmith explained there are different types
of communication in families, and the type of communication between
the two adults that includes a level of equality, intensity, and

intimacy is called "partnering." (Id. at 15-16.) Mr. Goldsmith
testified emotional incest occurs when something happens between

the two parental figures in the relationship and one parent looks
for partnering communication usually with the oldest child of the

opposite sex. (Id.) When that happens, Mr. Goldsmith explained, it
has a "terribly disruptive" effect primarily on the child because

the child gets a level of adult intensity, equality, and intimacy
that the child cannot handle. (Id. at 16-17.) When questioned by

the trial judge, Mr. Goldsmith testified that the concept of
23

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 24 of 193

emotional

incest

thought[.]"

is

^'within

the

mainstream

of

psychological

at 19-20.)

Dr. Dan Steinfink was a psychiatrist who treated Petitioner

during his psychiatric hospitalization at Presbyterian Hospital of

Piano in the Seay Behavioral Health Center in Texas in September
1996. (Id. at 26-28.) Dr. Steinfink testified that he diagnosed

Petitioner

with

bipolar

mid

disorder,

sometimes

called

manic

depressive illness. (Id. at 30, 35.) Dr. Steinfink testified that
he did not find Petitioner to have a stable home life and advised

against him returning to his mother's care. (Id. at 31.) As a
result. Dr. Steinfink planned to discharge Petitioner to his father

in Georgia. (Id. at 32.) Dr. Steinfink testified that Petitioner's
mother did not participate in multi-family group sessions and that
it was unusual to have uninvolved relatives. (Id. at 33.) On cross

examination, the State highlighted Petitioner's involvement with
Satanic cults and drinking animal blood. (Id. at 34.)
Petitioner's

father

testified

that

he

had

only

seen

Petitioner five or six times after divorcing Petitioner's mother
before Petitioner came to live with him upon leaving Presbyterian

Hospital in October 1996. (Id. at 38, 42.) In the month that
Petitioner lived with him. Petitioner's father never successfully

obtained Petitioner's previous school records, never took him to
see a physician, and never secured any medication for him before
he sent Petitioner to live with his mother in Savannah on November
24

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 25 of 193

4, 1996. (Id. at 41.) After hearing his father's testimony, "[t]he
jury withdrew from the courtroom at 6:08 p.m., and [Petitioner]
began to cry audibly." (Id. at 50.) After Petitioner left the
courtroom, trial counsel reported he was ^'balled up on the floor"

and '"shaking." (Id. at 51.) The trial judge then adjourned for the
day. (Id. at 52.)

The

following

testified

about

day.

Dr.

Petitioner's

Arnold

Negrin,

treatment

at

a

Charter

psychiatrist,
Hospital,

a

psychiatric hospital in Savannah, Georgia. (Doc. 34, Attach. 1 at
5-6.) Dr. Negrin treated Petitioner on three separate occasions,

and he agreed that during this period. Petitioner "was tormented

by some thought disorder[.]" (Id. at 9, 36.) Dr. Negrin testified
he first treated a 15-year-old Petitioner from November 4, 1996,

through November 26, 1996, when Petitioner received both inpatient

and partial hospitalization treatment for verbalized thoughts of
self-harm.

(Id.

at

10,

18-19.)

At

the

time

of

Petitioner's

admission. Dr. Negrin diagnosed Petitioner with bipolar disorder

and

noted

he

presented

with

psychotic features

and

suicidal

thoughts. (Id. at 10-11.) Dr. Negrin explained a Global Level of
Function or "GAS" score is a number from one to one hundred used

to rate a person's present level of functioning. (Id. at 13.) Dr.

Negrin testified that at that time. Petitioner's score was ten and
indicated that on the adult scale, which Petitioner was on the

cusp of, a person with that score has a "persistent danger of
25

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 26 of 193

severely

hurting

self

personal

hygiene,"

or

or

others,"

a

''serious

an

^'inability

suicidal

act

to

maintain

with

clear

expectation of death." (Id. at 14-16, 18.) Dr. Negrin testified

Petitioner's diagnosis at discharge was bipolar disorder mixed
which meant "he'd had some manic episodes[,] bizarre thoughts, and

that also could include some psychotic symptoms[.]" (Id. at 19.)

Dr. Negrin testified he next treated Petitioner from February
2, 1997, until February 11, 1997, when Petitioner was involuntarily
committed after being found wandering in the woods. (Id. at 19-

20, 24.) Dr. Negrin confirmed it was on this hospitalization that
Petitioner told a police officer who took him to the emergency
room, "Just give me your gun and I'll kill myself now." (Id. at
26.) At that time. Dr. Negrin explained that Petitioner's GAS was

20, which was essentially the same as his last hospitalization,
but "he was more psychotic, as opposed to just depressed and
suicidal." (Id. at 20-21, 29.) Meaning, "he was delusional, . . .

hallucinating, [and] feared that somebody was after him." (Id. at

29.)

Dr.

Negrin

confirmed

that

other

patients

reported

that

Petitioner had made homicidal threats against his mother. (Id. at

30.) Dr. Negrin recounted how "placement outside the home was
discussed[]" with Petitioner's mother, and she "made some bizarre
statements about incest in the home, grandparents, and whether
that could have made him crazy." (Id. at 22.)

26

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 27 of 193

Dr.

Negrin's

third

encounter

with

Petitioner

at

Charter

Hospital occurred a little over a year later from March 30, 1998,
until April 7, 1998, when Petitioner attempted to overdose after

breaking up with his girlfriend because he ''hear[d] too many voices
and he just want[ed] to die." (Doc. 34, Attach. 1 at 26-27; Doc.

15, Attach. 23 at 7.) Dr. Negrin also confirmed that Petitioner
had been ^'talking about wanting to take a gun to school and shoot

everyone there and then shoot himself[.]" (Doc. 34, Attach. 1 at
33.) Dr. Negrin testified Petitioner's GAS of 35-40, which was at
discharge,

indicated

^'impairment

in

reality

testing

or

communication, major impairment in several areas, such as work,
school, family relations, judgment, thinking, moods." (Doc. 34,
Attach. 1 at 26-27; Doc. 15, Attach. 23 at 7-8.)
Elaine

Glenn

testified

next.

Ms.

Glenn

was

Petitioner's

teacher at Wilder Middle School in 1997, and she referred him to

be evaluated for special education after he shared "writings of a

disturbing nature" and was not doing his academic work.^ (Doc. 34,
Attach. 1 at 41-44, 46-48.) Ms. Glenn testified that she thought

Petitioner "was coming to [her] as an adult, knowing that there
was something not right about [the writings], but not knowing what

^ Petitioner's trial counsel also called several other teachers
who were involved with Petitioner's referral from Wilder Middle

School and placement in Coastal Georgia Comprehensive Academy,
including Eric Neidlinger and Linda Bennett. (Doc. 34, Attach. 1
at 53, 59; Doc. 34, Attach. 2 at 14, 28.)
27

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 28 of 193

to do." (Id. at 44.) Ms. Glenn testified about the Emotionally
Behaviorally Disturbed

C'EBD") Crisis Placement recommended for

Petitioner. (Id. at 47-48.) Ms. Glenn explained Petitioner was
placed in ''a very restrictive environment, in a very quick amount
of time[.]" (Id. at 48.) She testified that he was referred to

Coastal Georgia Center,^ which they previously called ^^Psycho Ed,"

and that it is ''a [separate] school specifically for seriously

emotionally disturbed people." (Id.) On cross examination, Ms.
Glenn testified that Petitioner's writings were satanic in nature
and

violent and that Petitioner

reminded

her of Charles Manson.

(Id. at 50-51.)

Elizabeth Eaton was the social worker at Coastal Georgia who

compiled a social history report of Petitioner's life after his
referral from Wilder Middle School in February 1997. (Id. at 67,

68-69, 71.)

Ms. Eaton obtained information about Petitioner's

background from his mother and learned about her history as well.
(Id. at 69, 72.) Ms. Eaton testified that Petitioner's mother

reported that she had ''difficulty . . . growing up and coping[,]"
and her father was an alcoholic. (Doc. 34, Attach. 1 at 72; Doc.

34, Attach. 2 at 1.) Ms. Eaton further testified that Petitioner's

mother had multiple difficult marriages that could be abusive and
three children. (Doc. 34, Attach. 1 at 72; Doc. 34, Attach. 2 at

5 Coastal Georgia Comprehensive Academy is the full name of the
school. (Doc. 15, Attach. 28 at 3.)
28

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 29 of 193

1.) Ms. Eaton recounted that Petitioner had little contact with

his father after his parent's divorce and that ^^his birth father
was

not

Attach.

anxious

2

at

for them

3.)

Ms.

to

Eaton

be

involved

testified

with

that

him." (Doc.

Petitioner's

34,

first

stepfather sexually abused him, and his second stepfather had been
released from prison for rape and armed robbery. (Id. at 2, 6.)
Ms. Eaton testified that Petitioner's family moved a lot and was
homeless and lived in shelters at times. (Id. at 2, 4.) Ms. Eaton

felt Petitioner's mother had limited coping skills, ^^had a pretty

difficult life, had made poor choices probably as a child, which
continued even more so after she became an adult, and that she was

probably barely able to take care of herself, and certainly not
much able to take care of an ailing parent or three children."
(Id. at 7-8.)

Trial

counsel

also

presented

William

Albertson,

one

of

Petitioner's teachers, and Lisa Jarriel, the program manager for

the adolescent program at Coastal Georgia. Mr. Albertson testified
about Petitioner's '^^severe

reading

and

Albertson

writing

stated that

learning disability" affecting

skills.

(Id.

at

16.)

Petitioner's mother

Despite

wanted

this,

Petitioner

his

Mr.
to

pursue a regular diploma instead of a special education diploma.
(Id.

at

18-19.)

Mr.

Albertson

believed

Petitioner's

chronic

absenteeism would have hindered this effort. (Id. at 19-20.) Mr.

Albertson testified that Petitioner's mother often kept him out of
29

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 30 of 193

school to take care of his

younger brothers. (Id. at 21.) Ms.

Jarriel agreed that at Coastal Georgia, "academics [were] what

[they] did between crises." (Id. at 31.) The State questioned Ms.
Jarriel about a

psychiatric evaluation

performed

by

Dr.

Larry

Ackerman on November 8, 1999. (Id. at 36, 38.) Ms. Jarriel read

Dr. Ackerman's finding from his report:

[A]t the present time[. Petitioner] does not show any
evidence
of
psycho-pathology.
There
may be
some
underlying LD problems that will be determined by
psychological testing. At the present time, there is no
indication to continue the placement in this restrictive
environment and [Petitioner]
regular education.

should

be

returned

to

(Id. at 39.)

Next,

testified

Dr.

about

Daniel

the

Nagelberg,

a

clinical

psychological evaluation

he

psychologist,

performed

of

Petitioner in April 1998 after he was referred by Dr. Negrin during
Petitioner's

third

admission

at

Charter

Hospital.

(Doc.

34,

Attach. 2 at 47-48; Doc. 34, Attach. 3 at 1.) As part of Dr.

Nagelberg's evaluation, he saw Petitioner twice and reviewed his
history and background. (Doc. 34, Attach. 3 at 1-3.) Dr. Nagelberg

also performed several tests, including the WAIS-R Wechsler Adult
Intelligence Scale, Wide Range Achievement Test, Revision 3, and
MMPI Minnesota Multiphasic Personality Inventory, and a mental
status exam to evaluate Petitioner's thinking, mood, affect, and
ability to solve problems and reason. (Id. at 1-2.)

30

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 31 of 193

According

to

Dr.

Nagelberg,

""[iJt

was

quite

evident"

Petitioner was a ^'very bizarre" individual, which was a term he

did not use often, and actively psychotic at the time of his
evaluation. (Id. at 4, 12.) Petitioner reported hearing voices to
Dr. Nagelburg:
[He]

told

me

that

at

the

time

that

he

was

hearing

intermittently, on and off, a total of 11 different
voices, including his own, so that there were his voice
plus 10 other voices, and he had names for them, and it
was more than just hearing the voices. He identified
each of these by name with a different personality. For
example, he had a male personality or voice called
Exodus, who was the active part. He had a voice or a

personality by the name of Xavier, the playful part in
him; Dragstar (phonetic), who he didn't want to say the
name out loud, because he thought that that particular

personality would take over, and Dragstar was the inner
rage within him, as he described it. And he told me that
he had five different female voices or personalities,
called Jupiter, Phoenix, Apocalypse, the Black, and
Angel. So having that conversation with somebody, yes,
indeed, I thought that was rather bizarre.

(Id. at 4-5.) Dr. Nagelberg testified that Petitioner reported he

was physically and sexually abused by his stepfather and that ^^the
man had performed anal penetration on him[.]" (Id. at 5-6.) Dr.

Nagelburg explained it was not unusual for young boys to deny being

raped by a family member because ''they' re afraid they're going to
be harmed in some way" for talking about it. (Id. at 6.)

According to Dr. Nagelberg, Petitioner was on a fifth-grade

reading

level,

third-grade

spelling

level,

and

fourth-grade

arithmetic level when he was 16 years old and should have been in

the 10^"^ grade. (Id. at 6-7.) Dr. Nagelberg stated the MMPI, which
31

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 32 of 193

encompassed

personality

and

emotional

testing,

revealed

^'significant psychopathology." (Id. at 7-8.) The "scales" on which
Petitioner
paranoid

showed

the

thinking;

highest elevations

depression;

angry

were

impulses

associated
and

acting

with
out

behavior; and unusual, if not bizarre or psychotic, thinking. (Id.

at 8.) Dr. Nagelberg testified that Petitioner showed two areas of

deficit

in

cognitive

functioning:

(1)

difficulty

with

concentration and attention and (2) academic achievement. (Id. at

9.) Dr. Nagelberg thought Petitioner's test scores were consistent
with

attention

deficit

hyperactivity

disorder

and

a

specific

learning disability. (Id.)

Finally, Dr. Nagelberg testified

displaying

evidence

of

a

psychotic

he felt Petitioner "was

disorder[,]" specifically

evidence of schizophrenia or pre-schizophrenia, "because you do

not typically see an acute onset of schizophrenia until one gets
into their late teens or early 20s, sometimes even late 20s." (Id.
at 9-10.) To meet the criteria for a diagnosis of schizophrenia.

Dr. Nagelberg explained that "you have to have an initial psychotic
break[.]" (Id. at 10.) Dr. Nagelberg stated that "symptoms in

childhood and adolescents may be different than the symptoms in
adulthood," but adolescents tend to show "prodromal symptoms[,]"

which are "symptoms that occur before the actual onset of the
illness itself[.]" (Id.) Dr. Nagelburg also thought Petitioner
showed evidence of a delusional disorder. (Id.)

32

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 33 of 193

When

trial

counsel

asked

whether

Dr.

Nagelberg

would

be

surprised to learn that Petitioner was discharged April 7, 1998,

the

day

after

he

submitted

his

report

on

April

6,

1998,

he

announced: '"Surprise me? It's unfortunately part of the medical

system." (Id. at 13.) Dr. Nagelberg explained, "I think everybody
knows that it boils down to what the insurance benefits were at

the time, and if he was discharged, this may indicate that the

insurance company did not allow further stay." (Id. at 14.) Dr.

Nagelberg also stated he would have been "surprised" to learn that
Petitioner received a clean bill of mental health in 1999. (Id.)

Dr. Nagelburg made clear: "[I]f there was a clean bill of health

a year after I had seen him, that either there was some sort of
divine intervention or he was not fully assessed." (Id. at 15.)
Referring back to Petitioner's hospitalization at Charter

Hospital

during

observations

counseling.

1997,

Julia

of

Petitioner

(Id.

at 23-24.)

Collins

and

Ms.

his

testified
mother

about

during

Collins testified

her

family

that after

Petitioner and his mother started discussing some sort of boarding
school, he went over to her, put her head in his hands, and started

cooing "Mother, mother" to her, and "when [they] went to leave the
session, he kissed his mom on the mouth[,]" which Ms. Collins found
to be unusual. (Id. at 24-26.) Ms. Collins described the kiss as

"long enough that it was odd to [her.]" (Id. at 26.)

33

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 34 of 193

Joan Dane-Kellogg, a clinical social worker with Dr. Negrin,
also testified about her treatment of Petitioner on an outpatient
basis in

both

1996 and

1997. (Id. at 33-34.)

Ms.

Dane-Kellogg

testified that on April 10, 1997,
[Petitioner] described to [her] that he

had problems

with his temper, that he had blackouts with anger, that
he

would

zone

off.

.

.

.

And

then

catch

himself.

Sometimes he would have suicidal thoughts. He had a sense

that there were other people inside of him. He described
it as a war. He described some of the names he had given
to some of the parts inside his head.

(Id. at 39.) During his second session, on May 21, 1997, Ms. Dane-

Kellogg explained that they began exploring ^'the dissociative
episode that he was having, the voices in his head, [and] the names

that he gave to each of the voices." (Id. at 40.) She testified
that Petitioner described four

voices, one of which

was ^^very

angry" and wanted ^^to take over [his] body." (Id. at 40-41.) Ms.
Dane-Kellogg recounted that Petitioner later described the fourth

voice taking him to a room to watch his stepfather molest him in
a dream. (Id. at 41.) Ms. Dane-Kellogg testified that in June of

1997, Petitioner described ^^the experience of blacking out, waking

up somewhere else, [and not] know[ing] what happened." (Id. at
42.)

Ms.

Dane-Kellogg

also testified

about

problems

she

had

following up with Petitioner's mother about his attendance at
sessions and medication management. (Id. at 45-47.)

34

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 35 of 193

D.

Attorneys

Charles Grimm served as Petitioner's mother's lawyer in her
divorce from Petitioner's stepfather. (Doc. 33, Attach. 10 at 4,
10.) Mr. Grimm recalled Petitioner's mother's odd behavior during
the divorce proceedings, including the fact that the major dispute

was over an 8 x 10 glamour photo of her. (Id. at 8.) Mr. Grimm
further

testified

that

''Mr.

Cosson

was

an

extremely

angry,

controlling man, and [Petitioner's mother] was clearly afraid of
him[.]" (Id. at 9.) Mr. Grimm recalled that Petitioner's mother

made allegations of physical, mental, and sexual abuse against her

and sexual abuse against Petitioner. (Id. at 11-13, 24.) Mr. Grimm
also

te'stified that he

was able to

secure

a

protective

order

against Petitioner's stepfather from the court with a finding of
family violence. (Id. at 11-12.)

Later, trial counsel presented Diane .McLeod as a witness.
(Doc. 34, Attach. 4 at 4.) Petitioner's mother took out four unruly

and delinquent child petitions against Gilbert in juvenile court,
and Ms. McLeod served as his lawyer on at least one occasion. (Id.

at 5, 8.) Ms. McLeod reported Petitioner's mother called the police

regarding

Gilbert

"on

several

occasions,"

and

during

one

investigation, police learned that Petitioner's mother referred to
Gilbert as "fat bastard," slapped him, and hit him. (Id. at 6.) In

fact, during a hearing in juvenile court. Petitioner's mother
admitted to striking Gilbert across the face several times. (Id.
35

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 36 of 193

at 10.) During

her interactions

with

Gilbert, Ms. McLeod also

learned Petitioner's mother kept Gilbert's father's mail from him.
(Id. at 7.) Ms. McLeod testified the court later dismissed all of

the

charges

against Gilbert.

(Id.)

Ms.

McLeod

testified

that

Gilbert was ^'not the same child" after he went to live with his

father. (Id. at 12.) On cross examination, the State highlighted

that regarding Gilbert there ''seemed to be no mistreatment by [his]
father," the man trial counsel alleged sexually abused Petitioner.
(Id. at 16.)

E.

Family Members

Trial counsel's final witnesses were Petitioner's brothers.

Gilbert testified that he remembered moving around frequently and

living in hotels at times. (Doc. 34, Attach. 4 at 19.) Gilbert
recalled Petitioner being the "man of the house" and taking care

of him and his younger brother, including doing the cooking and

cleaning. (Id. at 20-21.) Gilbert described his mother as being
"very abusive" and explained that the police were frequently
called.

(Id.

at

21-22.)

He

also

testified

that

he

recalled

Petitioner and his mother's husband Ronnie having one physical

altercation, that his mother did not intervene, and Petitioner

began leaving home regularly after that. (Id. at 18-19.) Simon,
who was nine years old at the time of the trial, read a statement

describing the way Petitioner was "like his father" and asked the
jury to let him live. (Id. at 27-29.)
36

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 37 of 193

F.

Closing Arguments and Deliberations

After Petitioner presented his case in mitigation, counsel

for both sides made their closing arguments. (Doc. 34, Attach. 5
at 20-51; Doc. 34, Attach. 6 at 1-39.) The next day, November 8,

2005, the jury resumed deliberations. (Doc. 34, Attach. 7 at 7.)

That

morning,

the

jury

sent

a

question,

asking

^^What

was

[Petitioner] doing from '98 to 2001 or 2002? Can we know?" (Id. at

9.) The trial judge responded that he could not answer and they
had to recall what the evidence was on the issue. (Id.) Around

noon, the jury recommended the death sentence for the murders of
Susan and Kimberly- Pittman, finding 11 aggravating circumstances
across the two murders. (Doc. 34, Attach. 7 at 10; Doc. 16, Attach.

19 at 2-4.) The jury found beyond a reasonable doubt that Ms.
Pittman's murder ''was committed while the defendant was engaged in

the commission of a burglary" and "arson in the first degree," and
"was outrageously or wantonly vile, horrible, or inhuman in that
it

involved

torture

to

the

victim

before

death[,]" "involved

depravity of mind of the defendant[,]" and "involved an aggravated
battery to the victim before death." (Doc. 16, Attach. 19 at 2.)

The jury also found beyond a reasonable doubt that Kimberly's
murder "was

commission

committed

of

another

while

the

capital

defendant

felony

was

(the

engaged

murder

of

in

the

Susan

Pittman)[,]" "the commission of. a burglary[,]" and "arson in the

first degree," and "was outrageously or wantonly vile, horrible,
37

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 38 of 193

or

inhuman

in

that

it

involved

torture

to

the

victim

before

death[,]" ''involved depravity of mind of the defendant[,]" and
"involved an aggravated battery to the victim before death." (Id.
at 3-4.)
VI.

MOTION

FOR NEW TRIAL

Petitioner filed a motion for

new

trial,

which

was later

supplemented. (Doc. 16, Attach. 19 at 11; Doc. 16, Attach. 22 at
5.) In December 2005, after he was transferred to the Georgia

Diagnostic

and

Classification

Prison

following

his

sentence.

Petitioner attempted suicide. (Doc. 109 at 172; Doc. 41, Attach.
7 at 50.) Before Petitioner's evidentiary hearing for his motion.
Petitioner's counsel moved ex parte on February 12, 2007, for a

continuance. (Doc. 16, Attach. 21 at 13-14.) Trial counsel notified
the Court that Petitioner had twice attempted suicide, which had

raised "grave concerns about [Petitioner's] present competence"
and more time was needed to complete the evaluation of Petitioner.

(Id.) During the evidentiary hearing. Petitioner's trial counsel,
speaking about the ex parte matter, notified the trial court they
looked into that issue and were not going to pursue it based on

the

reports

they

received.

(Doc.

34,

Attach.

8

at

3-4.)

Petitioner's motion for new trial was denied. (Doc. 21, Attach. 3

at 8.) The

Georgia

Supreme

Court then

38

affirmed

Petitioner's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 39 of 193

convictions in part and death sentences on November 3, 2008.^
O^Kelley, 284 Ga. at 758, 670 S.E.2d at 391-92. The United States

Supreme Court denied Petitioner's petition for writ of certiorari
on October 5, 2009. O'Kelley v. Hall, 558 U.S. 840, 130 S. Ct. 94
(Mem), 175 L. Ed. 2d 64 (2009).
VII. STATE HABEAS PETITION

On September 2, 2010, Petitioner filed a state habeas corpus

petition in the Superior Court of Butts County, Georgia, arguing

among other things, that his trial counsel were ineffective during
trial.

(Doc.

35,

Attach.

9

at

3,

7-8.)

On

April

26,

2011,

Petitioner filed an amended petition, also arguing, among other

things, that his trial counsel were ineffective at trial. (Doc.
36, Attach. 19 at 3-13, 32.) Over three days in August 2012 and

one day in January 2013, the state habeas court held a hearing on
Petitioner's claims. (Docs. 38-46, 48-50, Attach. 9.)

At the evidentiary hearings. Petitioner presented the live

testimony of 14 witnesses, including Mr. Edwards, Mr. Beauvais,
and Mr.

Daly.'^ (Doc. 38, Attach. 1 at 7-8.) Petitioner also

6 The Georgia Supreme Court found ''[t]he trial
imposing two consecutive twenty-year sentences
first degree arson offense" and directed the trial
the sentence imposed on Count 6." 0'Kelley, 284

court erred in
for the single
court to ^^strike
Ga. at 761, 670

S.E.2d at 393.

Several witnesses testified regarding the
propriety of
Petitioner's habeas counsel's efforts when talking to Mr. Gray and

the circumstances surrounding Mr. Bowen's testimony. (Doc. 38,
Attach. 1 at 24-58; Doc. 38, Attach. 4 at 7-40.)
39

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 40 of 193

presented numerous affidavits, school records, medical records,
institutional medical and

mental

health

records from before

and

after trial, filings and exhibits from trial, as well as trial
counsel's files. The Court will summarize the relevant witness's

live

testimony

evaluate

and

affidavit

Petitioner's

claim

testimony
that

his

in

order

trial

to

properly

counsel

were

ineffective.

Petitioner's

evidentiary

unpredictable,

brother

hearing

and

Gilbert testified at the

about

abusive

their

behavior

state

mother's

throughout

habeas

neglectful,

his

and

Petitioner's childhood. (Doc. 38, Attach. 1 at 128-214.) Gilbert

recalled that while they lived in Texas and after they moved to

Georgia, they were often missing the necessities. (Id. at 138,
157-58.) He indicated that his mother was consistently absent,
that Petitioner walked him to school, made

his breakfast, and

dressed him for school, and that he and Petitioner cleaned the

house. (Id. at 141-42, 154.) According to Gilbert, his mother did

not encourage him to go to school and interfered with Petitioner's
efforts to study for his GED. (Id. at 183-84.) Gilbert testified
his mother abused drugs and alcohol and did so with his and
Petitioner's friends. (Id. at 158-59, 163.) Gilbert also recalled
it was not uncommon to find his mother having sex with someone,

that it was a daily part of life, and she was not ashamed of it.
(Id. at 165.) He stated that she frequently changed religions, was
40

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 41 of 193

paranoid that the government was watching her, and believed aliens
had placed probes inside her. (Id. at 176-77.) Gilbert testified
that while they were living in Dallas, Texas, when he was no more
than six years old, his mother attacked Petitioner with a hockey

stick she bought for Gilbert as a toy, leaving him unconscious.
(Id. at 132-34.) Gilbert remembered that blood was everywhere, and
he did not recall Petitioner receiving medical treatment. (Id.)
Gilbert also recounted an incident when his mother hit him with a

flyswatter when he mispronounced letters while she was helping him
with his homework. (Id. at 140-41.) Gilbert testified that he was

contacted by Petitioner's attorneys at the time of the trial when

he was 18 years old and would have testified to everything he said
at the state habeas evidentiary hearing, but he believed they did
not ask him anything of substance. (Id. at 190-91.)

Virginia Norman (^^Ginger") elaborated further at the state

habeas evidentiary hearing about Petitioner's mother's behavior,
and she also discussed her relationship with Petitioner. (Doc. 38,

Attach. 2 at 71-151.) Ginger explained that Petitioner had an odd
relationship with his mother, who had a fluctuating mood, and that
she treated him more like a companion. (Id. at 97, 100.) She
remembered that Petitioner's mother would ask him to massage her

back, legs, feet, and shoulders and that other people were present.

(Id. at 98-99.) Ginger also testified that Petitioner told her his
mother tried to kiss him, although she did not witness that. (Id.
41

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 42 of 193

at 98.) She recalled Petitioner's mother did drugs with their group
of friends and was sexually involved with people they knew. (Id.
at 100-05.) She also explained that Petitioner's mother believed

the CIA was after her and she had been probed in the arm by aliens.
(Id. at 107-08.)

Ginger also testified about her observations of Petitioner's
behavior over the years. Ginger knew Petitioner before she left

Savannah in approximately November 1999 and after she returned in
October

2001.

(Id.

at

81-82,

84,

130.)

Ginger

was

sent to

a

Department of Juvenile Justice facility for girls for shoplifting,
truancy, and running away and then to a hospital-like facility
after she was expelled from the first facility. (Id. at 134-38.)

Ginger testified she used drugs, including marijuana and cocaine,
before and after she returned to Savannah and that she used drugs
with Petitioner a few times. (Id. - at 141-43.) At that time and

after she returned, however, she explained that Petitioner had

other personalities, including Drag Star, Phoenix, and others, and
he would change depending on the personality. (Id. at 85-87.) She
remembered occasions where he would have memory lapses, shake,

pass out, and have headaches and that he commented on the smell of
burning rubber before these episodes. (Id. at 88-92.) Ginger also
recalled Petitioner talking to himself and acting out scenes that

were not there. (Id. at 90.) After Ginger returned to Savannah,
she explained that Petitioner's hygiene deteriorated, he became
42

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 43 of 193

more

aggressive,

and

he

did

odd things.

(Id.

at

109-12.)

For

example, he would store opened food in his pockets, and he insisted
she take animal pictures down before he entered her home. (Id.)
After the crimes. Ginger explained she rode with Petitioner's

mother to meet with trial counsel regarding Petitioner's purported
confession to their friends. (Id. at 119-22.) She only talked with

trial counsel for about 20 minutes, and they did not ask her or

any of Petitioner's other friends about his life. (Id. at 122.)
Ginger stated she would have testified at Petitioner's trial about
her recollection of Petitioner. (Id. at 123.)

Lawrence Varian, Petitioner's first grade teacher at White

Rock Elementary School, elaborated about Petitioner's mother's
behavior while Petitioner was in his class as well as Petitioner's

challenges in school. (Doc. 38, Attach. 1 at 58-127.) He described
Petitioner's mother's involvement as inconsistent and noted that

Petitioner had 37 absences throughout the school year, which was

high. (Id. at 94, 107.) Mr. Varian described when Petitioner's
mother invited him to attend Petitioner's birthday, but she made

no preparations and no other attendees ever arrived. (Id. at 10913.)

He

academics

also
and

testified
social

about

skills.

Petitioner's
Mr.

Varian

difficulties

described

with

referring

Petitioner for testing and the subsequent decisions to place him

in special education and ultimately to hold him back. (Id. at 69,
92-95.) Mr. Varian recounted an incident where
43

he broke

up an

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 44 of 193

argument involving Petitioner. (Id. at 81-82.) When Mr. Varian
took Petitioner's hand. Petitioner bit him repeatedly and said,

^''*1 can break your bones,' not in an angry, in sort of a matter of
fact tone of voice[.]" (Id.) He also recalled a time he could not

get Petitioner to stop marching around the classroom saying ""yayyay parades" and a teacher from the ^^emotionally disturbed class"
came and had to gently maneuver him to the ground. (Id. at 84-85.)

Petitioner also presented the live testimony of Dr. Carolyn
Elizabeth Hodges, the director of outreach counseling and incest
recovery at The Family Place in Texas with a Ph.D. in social work.
(Doc. 38, Attach. 2 at 9-69, 9-10.) Dr. Hodges reviewed background
records

but

did

not

evaluate

Petitioner

and

had

no

personal

knowledge of Petitioner, his mother, stepfather, or brother as she
did not work at the shelter when he lived there. (Id. at 39, 60-

62.) Dr. Hodges commented on the abuse Petitioner suffered at the
hands of his stepfather that was documented in a letter from The

Family Place and how such abuse can impact a person. (Id. at 1618, 42-44, 50.) She described the physical and verbal abuse that
Petitioner

endured

as

^^horrendous," noting

he

was

subject

to

constant ridicule, overly disciplined, spanked up to six times a

day, shaken, and forced to participate in parental arguments. (Id.
at 18.) Dr. Hodges testified that records revealed Petitioner's

stepfather began sexually abusing him at age six, although she
clarified, ^'[o]r really incest; it was his stepfather. So, [the]
44

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 45 of 193

incest started when he was six and continued." (Id. at 39.) Dr.

Hodges

believed

documentation

that

Petitioner

had

a

limited

understanding of boundaries, evidenced by grabbing the buttocks of

staff, kissing his peers, and goosing his peers, indicated ''some
inappropriate sexual behaviors [had] gone on" and that he had been

taught offensive behavior was actually playful. (Id. at 29, 30,
32.) Reviewing one of Petitioner's school records. Dr. Hodges noted
that

Petitioner's

mother

released

records

from

the

Southwest

Family Institute. (Id. at 36.) Dr. Hodges explained the name was

actually

Southwest

Cares,

and

it

was

an

incest

recovery

association. (Id.)

Additionally,

Petitioner

presented

the

live

testimony of

three mental health experts. First, Dr. Donna Schwartz-Watts was

tendered as an expert in psychiatry and forensic psychiatry. (Doc.
38, Attach. 1 at 216-90, 219.) Dr. Schwartz-Watts interviewed

Petitioner, performed a mental status examination, and performed
a brief neurological evaluation. (Id. at 222.) Dr. Schwartz-Watts
testified

that

her

"main

information"

came

from

her

clinical

evaluation of Petitioner and the things that he told her he was

thinking

around that period of time. (Id. at 260.) She also

reviewed Petitioner's school, medical, police, and psychiatric
records;

affidavits

transcript

of

and

statements

Petitioner's

trial;

45

of

and

various

a

individuals;

video

recording

a

of

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 46 of 193

Petitioner's television interview immediately after the murders.
(Doc. 38, Attach. 1 at 220-21; Doc. 38, Attach. 8 at 151-53.)

Dr.

Schwartz-Watts

opined

that

Petitioner

suffers

from

schizoaffective disorder, bipolar type, and that he was affected

by this mental illness at the time of his crimes.® (Doc. 38, Attach.
1 at 229; Doc. 38, Attach. 8 at 152.) She described that there are

periods of time

when

Petitioner

has

symptoms

of one

or

both

illnesses or can function totally normally because symptoms of
this disorder can ebb and flow. (Doc. 38, Attach. 1 at 2Z9, 248.)
Dr. Schwartz-Watts testified that Petitioner's history was replete

with symptoms of a psychotic disorder, particularly noting his
psychiatric hospitalizations with reports of hallucinations. (Id.
at 231-32, 234.) She recounted the various voices that Petitioner
described and his numerous suicide attempts, which she believed

were most likely in response to the sexual abuse and abuse he
suffered. (Id. at 234-35.) Petitioner reported sexual abuse by his

stepfather to Dr. Schwartz-Watts, but she did not recall Petitioner
giving her any information about sexual abuse by his mother. (Id.
at

263-64.)

Dr.

Schwartz-Watts

also

believed

Dr.

Ackerman's

psychiatric evaluation when Petitioner was released from Coastal

® In her report. Dr. Schwartz-Watts also opined that Petitioner
suffers from ^^Anxiety Not Otherwise Specified" and has ^^features
of Obsessive Compulsive Disorder and Post Traumatic Stress
Disorder" (Doc. 38, Attach. 8 at 152), but he did not meet the
full diagnostic criteria for PTSD (Doc. 38, Attach. 1 at 237).
46

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 47 of 193

Georgia in 1999 was ^^cursory" but could be reconciled with her

diagnosis because that was a period Petitioner was not acutely
symptomatic. (Id. at 249, 250-51.)

According to Dr. Schwartz-Watts, there was evidence that

Petitioner was decompensating again between late 1999 and 2002.
(Id. at 253.) She explained that Petitioner's complaints of chest
pains, irregular heartbeat, passing out, and feeling weak and
exhausted when he was admitted .to the Candler Hospital ER in 2000

were

^'indications,

medically

and

psychiatrically

and

neurologically, that something[ was] wrong with him." (Id.) Dr.
Schwartz-Watts also believed that Petitioner's reported symptoms

of nausea, vomiting, drop attacks, night sweats, fatigue, blacking

out, vertigo, and problems controlling his bladder at a 2001 visit
to the Westside Urban Health Medical Clinic were "a red flag that

perhaps his psychiatric illness [was] returning." (Id. at 251-52.)
She explained depressed and psychotic people are particularly
attentive to their bodies and report many symptoms, which are

called somatic complaints. (Id. at 252.) She also explained black

out spells and incontinence can be indicative of seizure activity
or other forms of cognitive impairment. (Id.) Petitioner's report

of recently eating raw food in Japan also concerned Dr. SchwartzWatts because it could indicate he lied, was psychotic, or was

confabulating. (Id. at 252-53.) According to Dr. Schwartz-Watts,

Ginger told her the "two things that [were] most important" in
47

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 48 of 193

developing her opinion that Petitioner was decompensating in the
years

between late

1999 and

2002.

(Id. at 254.)

Instances

of

Petitioner's bizarre behavior recounted by various witnesses in

the time leading up to the arrest, including squatting outside of

his mother's home, staring into the distance for hours at a time,
paranoia about being watched, and talking to imagined people, were

also red flags consistent with a psychotic thought process. (Id.
at 253-54.)

Dr. Schwartz-Watts opined that Petitioner was experiencing a
psychotic episode and was incapable of exercising sound judgment,
good decision making, or impulse control at the time of the crimes.
(Id. at 261, 264.) In labeling Petitioner as being schizoaffective
at the time of the murders, she relied on his delusion that he was

a serial killer, noting he reported ''that those hallucinations had

nothing to do with this crime" and did not command him to commit
the crimes. (Id. at 276-78.) She further explained that a person

can experience a psychotic episode and still know the difference
between right and wrong and that there was "no question" Petitioner
"[knew] right from wrong." (Id. at 261.)

Dr.

Kristin

Fiano,

a

clinical

psychologist

and

neuropsychologist, assessed Petitioner's brain functioning from a
behavioral

standpoint

by

conducting

a

neuropsychological

evaluation and- limited interview. (Doc. 38, Attach. 2 at 152-200,

153, 155, 158-59.) Dr. Fiano explained that neuropsychologists
48

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 49 of 193

rely on tests to look at brain functioning from a

behavioral

standpoint rather than a neuroimaging standpoint. (Id. at 158.) As
part of her evaluation. Dr. Fiano conducted several tests for each

area of brain functioning and reviewed Petitioner's records and

the raw data from Dr. Grant's neuropsychological evaluation. (Id.
at 160-63.) The results of Dr. Fiano's evaluation indicated:

[Petitioner's] overall cognitive abilities, conceptual
level abilities are in the normal range, but there are
some aspects of intelligence that were significantly
lower, particularly working memory. Memory testing
showed a mix of findings, with some scores being very
strong and others showing significant impairment. Also
impairments in terms of executive functioning and
attention and concentration, as well as some aspects of
verbal fluency.
(Id.

at

164.)

Executive

functions.

Dr.

Fiano

explained,

^^are

comprised of things like being able to inhibit your impulses,

planning

and

organizing,

attention

and

concentration,

working

memory[,] . . . following through on tasks, initiating tasks on
your own, and monitoring your behavior towards a goal." (Id. at
173-74.) Petitioner showed the most impairment in ^'working memory,
attention,

concentration,

and

the

ability

to

inhibit

a

response[.]" (Id. at 174.) Working memory is the ability to hold
information in short term memory while the brain is doing something
with that information, which can affect a

person's ability to

multitask and recall information for a short time. (Id. at 175.)

Dr. Fiano explained verbal fluency does not have very significant
implications in isolation but could make it difficult to produce
49

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 50 of 193

words fluidly. (Id.) Dr. Fiano confirmed there were consistencies
between her and Dr. Grant's findings. (Id. at 164.) Dr. Fiano noted

a documented history of a learning disability and possible temporal
lobe

seizure

disorder,

although

she

acknowledged that seizure

disorders are not diagnosed with neuropsychological testing. (Id.
at 168, 171-72, 177.)

Dr. Mark Cunningham, a clinical and forensic psychologist,
testified

extensively

on

the

factors

related

to

Petitioner's

""moral culpability." (Doc. 38, Attach. 4 at 41-245, 46.) Dr.

Cunningham explained moral culpability relates to the question of
what damaging factors, if any, are present in a person's life that
affect a person's choices and decisions. (Id. at 47-48, 156-57.)

In

conducting

his

evaluation.

Dr.

Cunningham

interviewed

Petitioner five times over three days for 108 minutes, 98 minutes,

108 minutes, 103 minutes, and 195 minutes. (Id. at 49.) He also
interviewed

Petitioner's

family,

friends,

teachers,

and

some

mental health care providers, and he reviewed Petitioner's records
along with the affidavits of several individuals. (Id. at 49-51.)
As a

result of his evaluation.

Dr. Cunningham identified the

presence of 36 adverse developmental factors, which are divided
into neurodevelopmental, family and parenting, community, and

disturbed trajectory categories, that collectively increased the
risk

and

likelihood

of

psychological

disorders,

relationship

dysfunction, disturbed sexuality, substance abuse, and/or criminal
50

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 51 of 193

violence in Petitioner's life. (Doc. 38, Attach. 4 at 57-58; Doc.

40, Attach. 10 at 38-39.) Dr. Cunningham opined that Petitioner
was so predisposed to relate to others ^'in a maladapted, toxic,

injurious, potentially violent sort of way" due to Petitioner's
pervasive developmental disorder and history of neglect, abuse,

and psychotic disorders that it was ^'almost inevitable" something
was going to go badly. (Doc. 38, Attach. 4 at 182-85.)
Dr. Cunningham testified that the build-up and combination of

several factors in the two years preceding the crimes, including
Petitioner's failed attempts to establish

a constructive life

structure and the overwhelming role demands, emotional stressors,

and lack of support system in Petitioner's life, precipitated the
crimes. (Id. at 70-71, 76.) Petitioner's marriage was failing due

to news of a pregnancy and difficulties keeping a job, and his
mother was undermining his marriage and attempts at independence.
(Id. at 71-72, 78-80.) According to Dr. Cunningham, Petitioner was

also deteriorating during that time. His hygiene declined, his
appetite decreased, and he sought medical treatment multiple times
for

chest

attacks,

pains,
among

psychological

irregular

other

heartbeat,

symptoms.

symptoms

also

(Id.

passing
at

worsened.

out,

and

drop

93-94,

103-07.)

His

For

example,

in

approximately January 2001, Maggie Dahlquist observed Petitioner
having conversations when no one was there. (Id. at 108.) Between

January and February 2002, Ginger saw Petitioner eat spoiled food,
51

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 52 of 193

and he made her remove pictures from the wall because he was scared
of them. (Id. at 108-09.) In the six

weeks leading

up to the

crimes. Petitioner became more bizarre and aggressive, responded
to invisible stimuli, and had olfactory hallucinations. (Id. at

109-10, 116-17.) Mary Chappell, a relative and neighbor., also
observed him squatting in his front yard and staring for long

periods of time. (Id. at 117.) It was also during this time that
he

created

Cunningham
command

his

insanity

conveyed

that

hallucinations

countdown.

(Id.

Petitioner

experienced

repeating

^^rape,

at

114,

kill,

117.)

Dr.

auditory

and

destroy[,

and]

mayhem[,]" had thoughts of killing his wife and himself, and
increased his use of alcohol and drugs at times during this period
to self-medicate. (Id. at 79-81, 105, 119.) To make matters worse.

Petitioner

surrounded

himself

with

dysfunctional

peers,

in

particular Mr. Stinski. (Id. at 95-97, 113, 121.)
Dr. Cunningham testified that Petitioner's mother was also
deteriorating during the time leading up to the crimes; she was

neglecting the house, exhibiting delusions, doing drugs and having
sexual intercourse with Petitioner's friends, and disregarding any

concern for boundaries. (Id. at 82, 93.) Dr. Cunningham highlighted

Petitioner's mother's longstanding psychotic symptoms and neglect.
(Id. at 177-82.)

Particularly

relevant

to

Petitioner's

claims

of

ineffectiveness. Dr. Cunningham testified that Petitioner reported
52

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that his mother attempted to resume a romantic relationship with
him during this time period. (Id. at 79.) On the subject of incest,
Dr.

Cunningham

testified

that

Petitioner

reported

his

mother

^^French kissed" him when he was nine and fourteen years old. (Id.
at 84.) Petitioner described that this eventually progressed to

mutual oral genital stimulation and full intercourse. (Id.) Dr.

Cunningham

relayed

traumatized,

with

a

that

incest

distorted

leaves

view

of

a

child

sexuality

sexually

due

to

the

conflicting feelings that can arise from the abuse, and that the
mothers involved in incest are usually psychotic. (Id. at 85-88.)

Dr.

Cunningham

explained

the

fact

that

Petitioner

described

specific, limited interactions as a co-participant and that third
party

peers

and

medical

professionals

observed

Petitioner's

mother's sexual boundary issues lend credibility to Petitioner's

report. (Id. at 139-41.) Dr. Cunningham stated 'Mt]his [was] the
worst starting place that [he had] seen, out of a couple hundred
cases[,]"

and

that

mother/son

incest

he

had

"''rarely

intercourse."

(Id.

encountered
at

184.)

Dr.

full-blown
Cunningham

acknowledged that Petitioner's trial counsel elicited testimony

about an inappropriate relationship between Petitioner and his
mother

but

countered

this

suggestion

was ""a

long

way from

a

recognition and appreciation of intercourse with his mom on a
recurrent basis." (Id. at 226-27.) Dr. Cunningham confirmed his

understanding was that ""Petitioner never reported having sex with
53

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 54 of 193

his mother until [the] habeas proceeding[,]" and that he did not
attempt to verify whether this occurred with Petitioner's mother

or his brother. (Id. at 223-24, 221.)^ Dr. Cunningham explained it

was not unusual for people to reveal information to him for the

first time after he spent time building rapport and they were less
concerned disclosure could be used against them. (Id. at 241-43.)

Dr. Cunningham also identified eight psychological diagnoses
and touched on their historical foundations. (Id. at 58.) These

include schizoaffective disorder, post-traumatic stress disorder

features, complex type; paraphilia, NOS; polysubstance abuse and

dependence; pervasive developmental disorder, NOS, by history; and

cognitive disorder, NOS. (Doc. 38, Attach. 4 at 58-68; Doc. 40,
Attach. 10 at 41, 128.) He also noted indications of dissociative
disorder

and

seizure

disorder

but

more

information

was

needed

before confirming those diagnoses. (Doc. 38, Attach. 4 at 70; Doc.
40, Attach. 10 at 128.) In his review of Petitioner's psychiatric

treatment

and

hospitalizations,

he

indicated

Dr.

Ackerman's

assessment of Petitioner at Coastal Georgia was limited in scope

and did not accurately reflect the full story of Petitioner's
mental state. (Doc. 38, Attach. 4 at 150-54.)

9 Although Dr. Cunningham stated that Dr. Schwartz-Watts documented
this history from ages to 13 through 16 (Doc. 38, Attach. 4 at 84,
221), Dr. Schwartz-Watts testified she did not recall Petitioner
reporting being sexually abused by his mother (Doc. 38, Attach. 1
at 264).
54

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Petitioner

also

presented

affidavit

testimony

from

his

family, friends, teachers, schoolmates, and healthcare providers.
{Doc. 38, Attach. 8 at 62-117, 128-31.) In summary, the affidavit
witnesses testified about the lack of parental support in any form

in Petitioner's life. Petitioner was essentially abandoned by his

father before he was two years old and left with Petitioner's
mother,

who

Petitioner's

father

claimed

was

verbally

and

physically abusive towards him. (Id. at 68, 71-73.) When Petitioner
briefly lived with his father after a psychiatric stay, he blamed
Petitioner's mother for the lack of information about Petitioner's
medication and educational needs. (Id. at 73.)

The affiants also testified to Petitioner's mother's neglect,

her mental illness, the mental illness in her family, and her

inappropriate

behavior.

Petitioner's

mother's

house

was

perpetually filthy, to such an extent that DFACS threatened to
remove Petitioner's brothers following Petitioner's arrest. (Id.
at 65.) There were times when the children did not have food or

running

water. (Id. at 62-64.) Petitioner's mother also

had

longstanding mental health issues. For example, Ernestina Erving
treated Petitioner's mother at The Family Place and explained that
she and other staff members had Petitioner's mother admitted to a

local hospital for emergency psychiatric treatment during her

stay. (Id. at 94.) Moreover, Petitioner's mother was often paranoid
and would call the police and make reports about things that did
55

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 56 of 193

not occur. (Id. at 63, 71.) One affiant testified that mental

health issues ran on the maternal side of Petitioner's family. Ms.

Chappell,

Petitioner's

mother's

relative

who

was

sometimes

referred to as his aunt, testified by affidavit that Petitioner's
mother's

cousin

had

schizophrenia

and

his

daughter

had

been

diagnosed with bipolar disorder. (Id. at 62, 67.) There was also
evidence that Petitioner's mother lacked appropriate boundaries
around Petitioner and

his friends. Ms. Dahlquist testified by

affidavit that Petitioner's mother did drugs with Petitioner's

friends and had sex with people around Petitioner's age. (Id. at
76.)

Several of Petitioner's healthcare providers remembered the

severity of Petitioner's mental illness and suicide attempts while
providing treatment during his psychiatric stays. (Id. at 89, 9798, 110-11.) Others, like Stephen Ryter, a play therapist who
worked with Petitioner at The Family Place, also confirmed it was

reported to them that Petitioner was sexually abused by his
stepfather and his behavior was consistent with a child who had
experienced sexual abuse trauma. (Id. at 100, 103-04.)
The affiants also discussed the interactions they had with

Petitioner over the

years. As a

young child.

Petitioner

had

difficulty interacting with his peers. (Id. at 103.) Several of
his friends, however, recalled Petitioner's kind actions to them.

(Id. at 75, 82.) They also recognized that his appearance and
56

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 57 of 193

behavior changed in the months leading up to the crimes. (Id. at
64-65.) Late in 2001, Ms. Dahlquist averred that Petitioner would

have conversations with people who were not there. (Id. at 77.)
Ms. Chappell recalled Petitioner squatting in the front yard days

in a row for long periods of time a few weeks or months before the
crimes. (Id. at 64-65.) Melissa West, a schoolmate of Petitioner's

at Coastal Georgia, testified by affidavit that Petitioner called
her the Wednesday before the crimes saying he wanted to die because
he could not be with his wife. (Id. at 79.)

Dr. Daniel Grant, the psychologist who evaluated Petitioner's

mental health and background at trial after Dr. James Maish needed
to

be

removed,

averred

that

he

^^was

never

given

a

specific

consultation question" when trial counsel retained him in the
summer of 2005. (Id. at 113-14.) Dr. Grant stated his ^'standard

practice

when evaluating defendants is to conduct a clinical

interview and a battery of psychological tests which screen for

gross neurological and psychological impairments," which he did in
Petitioner's case. (Id. at 114.) Dr. Grant averred:

The neuropsychological testing that I conducted showed
signs of impairments in the frontal and temporal lobes
of

[Petitioner's]

brain.

The

damage

manifested

as

impairments in the functioning of the temporal and
frontal lobes, including problems with flexibility of
thinking; the ability to move from one situation,
activity, or aspect of a problem to another; problem
solving; concentration; memory and recall of large
chunks of semantically related information; and planning
and organization.

57

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 58 of 193

(Id. at 114-15.) He believed these impairments were longstanding.
(Id. at 115.) Dr. Grant's impression was that Petitioner had ^'a

longstanding major mood disorder with psychotic features and/or a
thought

disorder

which

may

fit

within

the

schizoaffective

diagnostic category." (Id.) Dr. Grant averred he was

[u]Itimately

. . . asked to address the issue of [Petitioner's] likelihood of

successful prison adaptability[,]" which constituted the focus of
his report. (Id. at 116.) He stated he did not analyze or interpret
his neuropsychological findings to any degree in his report. (Id.)
The

state

habeas

court

ultimately

denied

Petitioner's

petition on September 25, 2013. (Doc. 52, Attach. 8.) Further
attempts to appeal were similarly unavailing. O'Kelley v. Chatman,
577 U.S. 961, 136 S. Ct. 408 (Mem), 193 L. Ed. 2d 324 (2015).
VIII.

FEDERAL HABEAS PETITION

On April 23, 2015, Petitioner filed a 28 U.S.C. § 2254

petition in this Court. (Doc. 1.) In his petition. Petitioner
raised nine general claims for relief. (Id. at 2-3.) After filing
his habeas petition. Petitioner filed a Motion for Leave to Conduct
Discovery (Doc. 61) and Motion for an Evidentiary Hearing (Doc.
82). After thorough review, the Court denied both of Petitioner's
requests. (Docs. 73, 86.)

On April 23, 2018, Petitioner filed his Brief on Procedural
Default, Exhaustion, and Miscarriage of Justice. (Doc. 87.) On

April 2, 2019, the Court determined that for purposes of his
58

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 59 of 193

upcoming merits brief, Petitioner would not be permitted to brief

any claim raised in Claim II, Claim III, Claim IV, Claim V, Claim
VI, Claim VII, Claim VIII, or Claim IX. (Doc. 104 at 66.) The Court

further found that Petitioner would not be permitted to brief many

of his claims related to Claim I — which generally covered his
ineffective assistance of counsel claim. (Id. at 14, 23-27, 29-

30.) The Court only permitted

Petitioner to brief his claims

related to his trial counsel's failure to investigate and present

evidence related to his background and mental health, including
Petitioner's

claims

that

his

trial

counsel failed

to

properly

utilize mental health experts at trial. (Id. at 32-35.)

On May 17, 2019, Petitioner filed his Brief in Support of
Petition for Writ of Habeas Corpus. (Doc. 109.) While Petitioner
did not raise a substantive competency claim in his state habeas

proceedings, on direct appeal to the Georgia Supreme Court, or in
his federal habeas petition. Petitioner also briefed the merits of
his claim that he was tried while incompetent. (Doc. 109 at 158-

78; Doc. 113 at 13.) Respondent filed a response brief on June 17,
2019. (Doc. 111.) Therein, Respondent agreed that the substantive

competency claim

was

reviewable

by the Court. (Id.

at 105.)

Petitioner filed a reply brief on July 2, 2019. (Doc. 112.) After

briefing on the merits. Petitioner requested leave to amend his
petition to add the substantive claim that he was tried while
incompetent (Doc. 113 at 13), and the Court granted his request
59

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 60 of 193

(Doc. 122 at 18-19). Petitioner's petition is now ripe for review
on the merits.

ANALYSIS

In his briefing. Petitioner argues that his trial counsel
were ineffective and that he was tried while incompetent. (Doc.

109 at 48, 158.) The Court will set out the legal standards for
each claim and address Petitioner's arguments in turn.
I.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner asserts that his trial counsel were ineffective

during the sentencing phase of trial.

(Doc. 109 at 48.) Petitioner

argues his trial counsel unreasonably failed to investigate and
present evidence (1) that Petitioner suffered from schizoaffective
disorder and organic brain dysfunction and how the conditions

impaired his functioning at the time of the crimes; and (2) of
Petitioner's

childhood

and

background,

including

evidence

of

sexual abuse by his mother and other severe abuse and neglect.
(Id. at 51, 87.) First, the Court will explain the general standard
of review for state habeas decisions. Then, the Court will describe

the specific legal standard applicable to ineffective assistance
of counsel claims and discuss each of Petitioner's claims.

10 Petitioner makes a passing reference to ineffective assistance

of appellate counsel in a section heading of his brief. (Doc. 109
at 48.) However, Petitioner does not argue how

his appellate

counsel were ineffective or otherwise address this claim in the

substance of his brief. Accordingly, the Court finds this claim
has been abandoned and requires no further discussion.
60

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 61 of 193

A.

Standard of Review

''[T]he writ of habeas corpus has historically been regarded

as an extraordinary remedy, ^a bulwark against convictions that
violate ^'fundamental fairness."'" Brecht v. Abrahamson, 507 U.S.

619, 633, 113 S. Ct. 1710, 1719, 123 L. Ed. 2d 353 (1993) {quoting
Enqle v. Isaac, 456 U.S. 107, 126, 102 S. Ct. 1558, 1571, 71 L.

Ed. 2d 783 (1982)). "Those few who are ultimately successful [in

obtaining habeas relief] are persons whom society has grievously
wronged

and

for

whom

belated

liberation

is

little

enough

compensation." Id. at 634, 113 S. Ct. at 1719 (alteration in
original) (quoting Fay v. Noia, 372 U.S. 391, 440-41, 83 S. Ct.
822, 850, 9 L. Ed. 2d 837 (1963)). The notion that habeas relief

is an extraordinary remedy is "especially true when federal courts
are asked to engage in habeas review of a state court conviction
pursuant to 28 U.S.C. § 2254." McWhorther v. Dunn, No. 4:13-CV02150-RDP, 2019 WL 277385, at *11 (N.D. Ala. Jan. 22, 2019).

A district court's review of a petitioner's claims that were

considered on the merits by a state court is governed by the
Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Payne
V. Allen, 539 F.3d 1297, 1312 (11th Cir. 2008). Pursuant to AEDPA,

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

61

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 62 of 193

(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.

28 U.S.C. § 2254(d). Under this provision, ""AEDPA ^imposes a highly

deferential

standard

for

evaluating

state

court

rulings'

and

Memands that state-court decisions be given the benefit of the
doubt.' " Bishop v. Warden, GDCP, 726 F.3d 1243, 1253 (11th Cir.

2013) (quoting Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855,
1862, 176 L. Ed. 2d 678 (2010)). Accordingly, the Court must not
assess whether it '"believes the state court's determination was

incorrect,

but

whether

the

determination

was

unreasonable—a

substantially higher threshold." Schriro v. Landrigan, 550 U.S.
465, 473, 127 S. Ct. 1933, 1939, 167 L. Ed. 2d 836 (2007) (citing
Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522, 146
L. Ed. 2d 389 (2000)).

A

state

court

decision

is

"contrary

to

.

.

.

clearly

established Federal law" under § 2254(d)(1) "if the state court

arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 412-13, 120 S. Ct.
at

1523.

A

state

court

decision
62

involves

"an

unreasonable

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 63 of 193

application of" clearly established federal law under § 2254(d)(2)
''if

the

state

court

identifies

the

correct

governing

legal

principle from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case." Id.
Within this review, the "federal habeas court . . . should ask

whether

the

state

court's

application

of

clearly

established

federal law was objectively unreasonable." Id. at 409, 120 S. Ct.
at 1521; see also Virginia v. LeBlanc, 582 U.S. 91, 94, 137 S. Ct.

1726, 1728, 198 L. Ed. 2d 186 (2017) ("In order for a state court's
decision to be an unreasonable application of this Court's case

law, the ruling must be 'objectively unreasonable, not merely

wrong; even clear error will not suffice.' " (quotation omitted)).
Generally,

federal

habeas

relief

is

precluded

"so

long

as

'fairminded jurists could disagree' on the correctness of the state
court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S.
Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (quoting Yarbdrough v.

Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158 L. Ed. 2d

938 (2004)). In other words, a habeas petitioner can obtain relief

only by establishing that no fair-minded jurist could agree with
the state court's decision. Woods v. Etherton, 578 U.S. 113, 117,

136 S. Ct. 1149, 1152, 194 L. Ed. 2d 333 (2016); Pope v. Sec'y,
Fla. Dep't of Corr., 752 F.3d 1254, 1262 (11th Cir. 2014).

When determining whether a state court decision is based on
an

unreasonable determination of fact, this Court must presume
63

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 64 of 193

that the state court's factual findings are correct unless rebutted
by clear and convincing evidence. Miller-El v. Dretke, 545 U.S.
231, 240, 125 3. Ct. 2317, 2325, 162 L. Ed. 2d 196 (2005). In

defining this standard, the Supreme Court has noted that 'Mt]he
standard is demanding but not insatiable[.]" Id. ^'The Supreme Court
has found state factual findings unreasonable under § 2254(d)(2)
when the direction of the evidence, viewed cumulatively, was too

powerful to conclude anything but the petitioner's factual claim,
and when a state court's finding was clearly erroneous." Landers

V. Warden, Att'y Gen, of Ala., 776 F.3d 1288, 1294 (11th Cir. 2015)
(internal citations and quotation marks omitted).
B.

The Relevant State Court Decision

This Court's discussion focuses on the reasonableness of the

state habeas court's final order. (Doc. 52, Attach. 8.) Although
the

state

habeas

court's

decision

is

not

the

last

state

court

adjudication on the merits, the Supreme Court of Georgia issued an
unexplained,

summary

denial

of

Petitioner's

certificate

of

probable cause to appeal. (Doc. 53, Attach. 6.) Because the Supreme
Court of Georgia provided an

unexplained opinion, this Court

^^presume[s] that the [Supreme Court of Georgia] adopted the same
reasoning" as the state habeas court. Wilson v. Sellers,

U.S.

, 138 S. Ct. 1188, 1192, 200 L. Ed. 2d 530 (2018). Therefore,
this Court will

the

Supreme

''look through" the unexplained decision' of

Court of

Georgia

to
64

review

the

superior court's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 65 of 193

decision as if it were the last state-court adjudication on the
merits." Raulerson v. Warden, 928 F.3d 987, 996 (11th Cir. 2019)

(quoting Wilson, 138 S. Ct. at 1192).
The

Court

also

rejects

Petitioner's

argument

that

AEDPA

deference should not apply because the state court adopted verbatim
a

proposed

order

Respondent

prepared.

(Doc.

109

at

22.)

As

Petitioner acknowledges, the Eleventh Circuit has held ""a state

court's verbatim adoption of the prosecution's proposed order is
entitled to AEDPA deference as long as (1) both parties ^had the

opportunity to present the state habeas court with their version
of the facts' and (2) the adopted findings of fact are not ^clearly
erroneous.' " Barksdale v. Att'y Gen. Ala., No. 20-10993-P, 2020

WL 9256555, at *18 (11th Cir. 2020) (first citing Rhode v. Hall,
582 F.3d 1273, 1282 (11th Cir. 2009); and then citing Jones v.

GDCP Warden, 753 F.3d 1171, 1183 (11th Cir. 2014)). Here, both

parties submitted proposed orders to the state habeas court. (Doc.
109 at 25.) When appropriate, the Court will address whether the
record supports the state habeas court's findings of fact.
C.

Ineffective Assistance of Counsel Standard

The Supreme Court of the United States explained the standard
for

analyzing

ineffective

assistance

claims

in

Strickland

v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In

Strickland, the

establishing

Supreme Court created a two-part test for

convicted

defendant's
65

claim

that

counsel's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 66 of 193

assistance was so defective as to require a reversal of conviction
or death sentence[.]" Id. at 687, 104 S. Ct. at 2064. ""^Unless a

defendant makes both showings [of the two-part test], it cannot be
said

that

breakdown

the

in

conviction

the

or

adversary

death

process

sentence

that

resulted

renders

the

from

a

result

unreliable." Id.

Under the first prong of the two-part test, "the defendant
must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not

functioning as the ^counsel' guaranteed the defendant by the Sixth
Amendment."

Id.

representation

"[T]he

fell

defendant

below

an

must

show

objective

that

counsel's

standard

of

reasonableness." Id. at 688, 104 S. Ct. at 2064.

Under the second prong of the two-part test, the defendant
must show that his counsel's deficient performance prejudiced the
defense. Id. at 687, 104 S. Ct. at 2064. To establish prejudice,

a petitioner must show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694, 104 S. Ct. at 2068. "In

the capital sentencing context, the prejudice inquiry asks whether
there is a reasonable probability that, absent the errors, the
sentencer

.

.

.

would

have

concluded

that

the

balance

of

aggravating and mitigating circumstances did not warrant death."
Pye V. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1041 (11th
66

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 67 of 193

Cir. 2022) (quotation omitted). "'A reasonable probability means a

substantial,

not

just

conceivable,

likelihood

of

a

different

result." Id. ''When evaluating this probability, 'a court hearing
an ineffectiveness claim must consider the totality of the evidence

before the judge or jury.' " Brownlee v. Haley, 306 F.Sd 1043,
1060 (11th Cir. 2010) (quoting Strickland, 466 U.S. at 695, 104 S.
Ct. at 2069). This requires that "the reviewing court must consider
all the evidence—the good and the bad—when evaluating prejudice."
Wong V. Belmontes, 558 U.S. 15, 26, 130 S. Ct. 383, 390, 175 L.
Ed. 2d 328 (2009). "In determining whether a reasonable probability
of a different outcome exists, [the Court] presume[s] a reasonable
decisionmaker." Raheem v. GDCP Warden, 995 F.3d 895, 924 (11th

Cir. 2021) (citing Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct.
988, 998, 89 L. Ed. 2d 123 (1986)).

When instructing courts as to how to apply the two-part test

in Strickland, the Supreme Court emphasized the that "[jjudicial
scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The Supreme Court

noted that "[i]t is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel's defense

after it has proved unsuccessful to conclude that a particular act
or omission of counsel was unreasonable." Id. (citation omitted).

Accordingly, courts must "not measure counsel against what we
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 68 of 193

imagine some hypothetical

^best' lawyer would do[.]" LeCroy v.

United States, 739 F.Sd 1297, 1313 (11th Cir. 2014). Rather, a

court must consider whether ^'in light of all the circumstances,

the identified acts or omissions [of the attorney] were outside

the

wide

range

Strickland, 466

of

professionally

U.S. at 690,

competent

assistance."

104 S. Ct. at 2066. Courts must

conduct this analysis with a '''strong presumption that counsel's

conduct falls within the wide range of reasonable professional
assistance[.]" Id. at 689, 104 S. Ct. at 2065. Strategic decisions

will amount to ineffective assistance "only if it was so patently

unreasonable that no competent attorney would have chosen it."
Kelly V. United States, 820 F.2d 1173, 1176 (llth Cir. 1987)
(quotation omitted).

In addition to the already deferential standard mandated by
Strickland,

this

Court

must

also

conduct

its

analysis

of

Petitioner's claims in light of the procedural posture of this
case. As discussed by the Eleventh Circuit,

it is important to keep in mind that in addition to the
deference
to
counsel's
performance
mandated
by
Strickland, the AEDPA adds another layer of deferencethis

one

to

a

State

court's

decision-when

we

are

considering whether to grant federal habeas relief from
a State court's decision. Thus, [a petitioner] not only"
has to satisfy the elements of the Strickland standard,
but he must also show that the State court applied
Strickland to the facts of his case in an objectively
unreasonable manner.

Williams v. Allen, 598 F.3d 778, 789 (llth Cir. 2010) (internal

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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 69 of 193

quotation marks, alterations, and citations omitted).
D.

Ineffective Assistance of Counsel Analysis

Petitioner

Beauvais,

and

assistance

evidence

by

claims

Mr.

Daly,

failing

relating

childhood.

his

Within

to

trial

provided

to

Mr.

Edwards,

constitutionally

adequately

Petitioner's

these

counsel,

investigate

mental

categories.

health

Mr.

ineffective
and

present

and

abusive

Petitioner

generally

identifies nine errors committed by trial counsel before and during

the

sentencing

phase

of

trial

that

constituted

deficient

performance: trial counsel's failure to (1) retain a replacement

mental health expert (Doc. 109 at 51, 59); (2) investigate the
two-year period of time before the crimes (id. at 63); (3) present
Petitioner's jail records (id. at 66-67); (4) present evidence of

his neuropsychological impairments (id. at 69-70); (5) investigate
and present evidence that Petitioner was the victim of incest by
his mother (id. at 87); (6) retain a sexual trauma expert (id. at

91,

100);

(7)

reliably

present

evidence

that

Petitioner

was

sexually abused by his stepfather (id. at 93); (8) investigate and
present evidence of the dysfunctional, abusive, and neglectful
environment in which Petitioner was raised (id. at 108); and (9)

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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 70 of 193

utilize experienced mitigation professionals (id. at 122).^^
1.

Mental Health

Petitioner

argues

trial

counsel

unreasonably

failed

to

investigate and present evidence that Petitioner suffered from
schizoaffective disorder and organic brain dysfunction and that

Despite Petitioner's assertion to the contrary (Doc. 109 at 16
n.7). Petitioner briefed claims not authorized by the Court's order

on procedural default, cause and prejudice, and the fundamental
miscarriage of justice, and the Court will identify those arguments
when appropriate. First, Petitioner argues that trial counsel were
ineffective for failing to investigate and present mitigating
evidence to rebut the State's case in aggravation. (Id. at 149-

58.) Specifically, Petitioner argues that trial counsel ^^would
have been able to impeach Mr. Bowen's credibility as a witness and
also cast doubt on whether [Petitioner] was solely responsible for
the contents of" the letter the State introduced at trial 'Mh]ad
trial counsel conducted [a] reasonable investigation into the

State's most aggravating piece of evidence[.]" (Id. at 156.) In
its order, the Court addressed Petitioner's ineffective assistance
claim that:

(q)

Counsel

failed

to

adequately

investigate

the

circumstances surrounding the production of the letter
turned over to the prosecution by Christopher Bowen and

his testimony regarding said letter. Counsel failed to
adequately cross-examine Christopher Bowen regarding the
letter, particularly regarding its provenance and his
role in its production. Counsel also failed to present
mitigating
psychological
evidence
addressing
the
letter's production and creation[.]

(Doc. 104 at 29.) The Court found that Petitioner had
insufficiently pled and was not permitted to brief the merits of
this claim. (Id. at 28-31.) The Court later denied Petitioner's

request that the Court reconsider its ruling that Petitioner
insufficiently pled this claim. (Doc. 122 at 6-7.) Accordingly,
the Court declines to consider Petitioner's arguments about trial

counsel's failure to investigate the origins of the letter, impeach
Mr. Bowen's credibility, or present mitigating psychological
evidence addressing the letter's production and creation.
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these impairments affected him at the time of the crime. (Doc. 109
at

51.)

Specifically,

Petitioner

contends

that

trial

counsel

performed deficiently by failing to retain a mental health expert

to replace Dr. James Maish, investigate the ^'two-year gap," present
his jail records as evidence of his mental illness, and present

evidence of his neuropsychological impairments.^2 (id. at 51, 54,
55, 56, 59, 63, 67, 69.) Petitioner contends these errors left

^2 Petitioner also argues the state habeas court ^^unreasonably
determined that trial counsel did not perform deficiently because
the expert testimony presented at [Petitioner's] state habeas

hearing was ^largely cumulative of that presented at trial.' "
(Doc. 109 at 65.) Specifically, the state habeas court found that
^^trial counsel's sentencing phase presentation was reasonable."
(Doc. 52, Attach. 8 at 57.) After listing the evidence introduced
in the state habeas proceeding, including ^'evidence about
Petitioner's mental health diagnoses and treatment over time," the
state habeas court found, ''^the evidence introduced in [the state

habeas] proceeding largely cumulative of that presented at trial."
(Id. at 58-59.) In doing so, the state habeas court relied on
Holsey v. Warden, Ga. Diagnostic Prison, 694 F.Sd 1230, 1264 (11th
Cir. 2012), a case in which the Eleventh Circuit addressed the
prejudice analysis. Petitioner argues the state habeas court's
finding that the evidence presented in the state habeas proceedings
was cumulative is unreasonable because trial counsel presented no

expert evidence or evidence that Petitioner's mental health
problems continued after he left Coastal Georgia. (Doc. 109 at 59,
65-66 (citing Doc. 52, Attach. 8 at 58-59).) Petitioner makes a
nearly identical argument regarding prejudice, and the Court will
address Petitioner's argument more fully in the following section.
However, the Court notes the submission of additional, cumulative
evidence to that uncovered and presented at trial does not
demonstrate deficient performance. See Raheem, 995 F.3d at 922-23
(noting much of the background evidence the petitioner presented
at the state habeas proceedings was ^^cumulative" to that uncovered
and presented in the penalty phase when concluding the state habeas
court's determination that trial counsel

were

not deficient in

their
mitigation
presentation
or
investigation
was
not
unreasonable (citing Darling v. Sec'y, Dep't of Corr., 619 F.3d
1279, 1284 (11th Cir. 2010)).
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trial counsel with a ^^hole" in their presentation where the ^^jury

heard

nothing

about

how

[Petitioner's]

major

mental

illness

continued past 1999, how it was active in the time surrounding the

crime and in the years leading up [to] it, and how it impacted his
actions and behaviors related to the offense." (Id. at 56, 57.)

Had

trial

counsel

retained

an

appropriate

expert.

Petitioner

contends they could have filled this gap in evidence and rebutted
evidence that Petitioner was not mentally ill at the time of the
crimes. (Id. at 57-58.)

Petitioner

argues

he

was

prejudiced

due

to

these

errors

because the jury was left with the impression that any mental
illness Petitioner had ended two years before the crimes and the

State was able to argue Petitioner ''knew right from wrong," he

"was not psychotic," and he "knew what was going on." (Id. at 71,
74.) Petitioner contends there is a reasonable probability the

jury would have recommended a life sentence had they heard all of
the mental health evidence, as evidenced by the jury's question

during trial about Petitioner's status between 1998 and 2002.
(Id. at 73, 75.)

The Court acknowledges that Petitioner presented the affidavit
testimony of a juror from his trial. (Doc. 38, Attach. 8 at 12831.) Having learned of Petitioner's suicide attempts in the Chatham
County Detention Center while awaiting trial, reviewed Dr.
Cunningham's report, and read Mr. Bowen's statement, the juror
declared that she would have voted to sentence Petitioner to life

without parole. (Id. at 129-31.) The Court notes the prejudice
inquiry under Strickland is objective and does "not depend on the
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 73 of 193

a.

Mental Health Expert

i.

Deficiency

The state habeas court rejected Petitioner's argument that
trial counsel performed deficiently by failing to replace Dr. James

Maish with a mental health expert. (Doc. 52, Attach. 8 at 88, 92.)
Instead, the state habeas court found trial counsel replaced Dr.

Maish with a ^'qualified mental health expert[,]" Dr. Grant and

retained him ^'as a comprehensive mental health mitigation expert"
to ^'conduct a complete mental health assessment of Petitioner[,]
including a battery of testing." (Id. at 88, 92, 97.)
Petitioner contends the state habeas court's factual finding

that trial counsel retained

Dr. Grant as a replacement mental

health expert to opine on anything other than prison adaptability
is belied by the record. (Doc. 109 at 59-61.) Relying on Ferrell
V. Hall, 640 F.3d 1199 (11th Cir. 2011), Petitioner .argues the

state habeas court unreasonably applied Strickland when concluding
that trial counsel's retention of Dr. Grant to conduct a prison

adaptability assessment was reasonable. (Id. at 61-63.)
First, considering the evidence in the record. Petitioner has
not shown the state habeas court's factual finding regarding Dr.

Grant was unreasonable or incorrect through clear and convincing

idiosyncrasies of the particular decisionmaker." Sealey v. Warden,
Ga. Diagnostic Prison, 954 F.3d 1338, 1358 (11th Cir. 2020). Thus,
the juror's testimony does not alter the Court's assessment.
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 74 of 193

evidence.

sentencing

The

state

phase

habeas

strategy

record

^^was

to

shows

that

trial

demonstrate

counsel's

[Petitioner's]

entire psychosocial history with an eye towards convincing the

jury that he was actively psychotic at the time [the crimes]
happened and was having a psychotic reaction." (Doc. 41, Attach.
1 at 98-99.) Accordingly, trial counsel moved for and were granted
funds to retain Dr. Maish, a psychologist who would ^'perform a

full battery of psychological tests" to assess Petitioner's mental
health status and assist with mitigation. (Doc. 39, Attach. 5 at
32-33; Doc. 50, Attach. 1 at 13-14.)

On
counsel

February 18, 2005, during an ex parte hearing, trial
informed

the

trial

judge

that

Dr.

Maish

was

being

investigated for a boundary violation and his license had been
suspended.

(Doc.

49,

Attach.

18

at

109-11.)

Trial

counsel

highlighted that the American Bar Association's Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty
Cases addressed the retention of a member qualified to screen for

the '^presence of mental or psychological disorders." (Id. at 112.)
They represented they were without mitigation evidence regarding
^^mental health issues" and asked for "a continuance and . . . an

opportunity to locate and secure a new or new experts[.]" (Id. at
113.) When discussing rescheduling trial, trial counsel commented
that an issue would be finding someone close because of the lack

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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 75 of 193

of ''forensic psychologists" willing to get involved in the area.
(Id. at 117.)

At

that

time,

Dr.

Grant

was

a

psychologist

and

neuropsychologist. (Doc. 44, Attach. 2 at 133.) During the state
habeas proceedings. Petitioner submitted evidence showing that on
March 7, 2005, Mr. Beauvais documented that Pam Leonard "advised
[him] that

Dan

Grant,

who [was] local,

would

be

an

excellent

witness in regard to underlying neuropsych matters[,]" he was "very

good on prison adaptability issues[,]" he was "very willing to get
involved in the case[,] and [he would] do a neuropsychological
examination . . . blind to see if he [could] ferret anything out

for [them]." (Doc. 39, Attach. 9 at 51.) On April 20, 2005, the

trial judge granted trial counsel's motion to appoint Dr. Grant as

"an expert in the field of forensic psychology[.]" (Doc. 39,
Attach. 5 at 208-09.)

Trial

counsel's

notes

regarding

meetings

with

Dr.

Grant

reveal that they discussed topics including "prison adaptability,"
"organics," "fetal alcohol," "incest," "child sexual trauma -

assess

&

testify,"

"neuropsych

battery,"

and

"personality

assessment inventory[.]" (Doc. 44, Attach. 6 at 153-54.) Under Dr.
Grant's name on one version of a "Chronological Mitigation Witness
List"

included

in

the

records

submitted

in

the

state

habeas

proceedings, trial counsel crossed out, "Dual diagnosis. PTSD from

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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 76 of 193

incident?" and wrote ^^prison adaptability." (Doc. 44, Attach. 5 at
40.)

When Mr. Edwards was questioned about whether trial counsel
had Petitioner evaluated by a psychiatrist or psychologist, he

responded affirmatively, indicating they first retained Dr. Maish
and ^'later retained Dan Grant." (Doc. 41, Attach. 1 at 85.) At the

state habeas hearing, Mr. Edwards testified that ^'Dr. Grant's role
was to assist generally in helping guide [them] through the mental

status questions, . . . but specifically he had expertise in prison

adaptability[,] . . . [which] became sort of the central theme of
his assistance." (Doc. 38, Attach. 2 at 215.) Mr. Edwards said
trial counsel secured ^^another person with the hopes of sort of

filling in the gap that Dr. Maish's departure had caused but [Dr.
Grant's]

focus

wasn't

to

complete

a

psychological

evaluation . . . ." (Doc. 41, Attach. 1 at 94.) When asked whether

trial counsel asked Dr. Grant to only perform a prison adaptability
evaluation, however, Mr. Edwards said, "No. We asked Dr. Grant to

get involved with the intention of having him provide testimony on
[prison adaptability]. I'm - I couldn't say that we limited Dr.
Grant from doing anything else but [prison adaptability] was our
focus with him[.]" (Id. at 96-97.) Mr. Edwards further averred

that he could not explain why they did not specifically retain
someone for the purpose of performing a psychiatric evaluation

"beyond getting Dr. Grant involved and . . . assuming that would
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 77 of 193

be, on some level, part of the prison adaptability evaluation that

he

would do." (Id. at 99.) Mr. Edwards explained that prison

adaptability had become important to their case because "[their]
focus was saving [Petitioner's] life and demonstrating to the jury
that he would adapt to a prison environment, [and] wouldn't be a
threat to others in the prison environment. . . ." (Id. at 97.)
Mr. Beauvais also testified that Dr. Grant was retained to address

prison adaptability issues. (Doc. 38, Attach. 3 at 184.) When asked
whether their request was limited to an evaluation of prison
adaptability, Mr. Beauvais testified that was the case to the best
of his recollection, "assuming [Dr. Maish] had not been taken off
the case at that point." (Doc. 41, Attach. 1 at 269.)
Petitioner offered affidavit testimony from Dr. Grant, who

averred that he was "never given a specific consultation question."
(Doc. 38, Attach. 8 at 114.) As a result. Dr. Grant stated he

conducted his standard battery of psychological tests which screen
for gross neurological and psychological impairments, although he

was ultimately asked to address the issue of prison adaptability
in his report. (Id. at 114, 116.)

Dr. Grant's draft report, which appears to have been faxed on
November 3, 2005, indicated the purpose of his evaluation was to

assess Petitioner's "potential to adapt to a lifetime of prison
incarceration" and that he spent "16 to 18 hours in face to face

psychological testing, clinical interviewing, [and] reviewing test
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 78 of 193

data and information and another 10 hours reviewing records and

documents provided [to him]." {Doc. 39, Attach. 9 at 59.) The
report lists the psychological tests, the results of Petitioner's

tests, and that his profile was ''consistent with a diagnosis of
schizoaffective disorder[.]" (Id. at 59-62.) Although Dr. Grant

concluded Petitioner could make an adequate adjustment to prison
life,

he

also

stated

Petitioner's

violence

potential

was

"moderate" and he showed "some potential for violent behavior even
in

a

structured

protective

setting[,]" and

his

potential for

infractions was moderate. (Id. at 61.) Trial counsel concluded Dr.

Grant's findings, which they received during trial, would have

been "very damaging" and decided against having him testify because
it was not going to be helpful. (Doc. 38, Attach. 3 at 119, 187,
208-10.)

Although Petitioner claims that trial counsel neglected to

find an expert to investigate Petitioner's mental health, trial
counsel discussed mental health issues and forensic psychologists

with the trial judge during the ex parte hearing (Doc. 49, Attach.

18 at 113, 117), and the trial judge granted trial counsel's motion
to appoint Dr. Grant as "an expert in the field of forensic

psychology[.]" (Doc. 39, Attach. 5 at 208-09.) Despite stating
that prison adaptability became their focus with Dr." Grant, Mr.

Edwards testified they had Petitioner evaluated by a psychologist
- first Dr. Maish and then Dr. Grant, they assumed a mental health
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assessment would be part of Dr. Grant's evaluation, they did not
restrict Dr. Grant's evaluation only to prison adaptability, and
Dr. Grant helped guide them through mental status questions. (Doc.
38, Attach. 2 at 215;

Doc.

41,

Attach. 1 at 85,

96-97,

99.)

Moreover, Dr. Grant conducted a battery of psychological tests,
the results of which Dr. Fiano, Petitioner's own expert, reviewed.
(Doc.

38,

Attach.

2

at

161;

Doc.

38,

Attach.

8

at

114.)

Accordingly, however debatable, the state habeas court's factual
determinations regarding the reason trial counsel retained Dr.
Grant and the scope of his assessment were not unreasonable or
clearly

and

convincingly

erroneous.

Pye, 50

F.4th

at

1043-44

(finding the state habeas court's interpretation of an affidavit
was not clearly erroneous even though it was not the ^'most natural"
reading); see also Gissendaner v. Seaboldt, 735 F.3d 1311, 1331
(11th Cir. 2013) (determining state habeas court's factual finding
that mental health evaluation extended beyond issues of insanity

and intellectual disability even though trial counsel could not
recall asking the

psychologist to cover other issues was

not

unreasonable or clearly and convincingly erroneous because the
record

contained

evidence

that

evaluation

went

beyond

those

issues).

While the Supreme Court formerly employed the phrase ^mentally
[the Court] now
^us[e][s] the term ''intellectual
disability" to describe the identical phenomenon.' " Brumfield v.
retarded,'

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Because the Court rejects Petitioner's arguments about trial
counsel's failure to retain a mental health expert. Petitioner's
argument about how the state habeas court '"unreasonably applied
Strickland to conclude that trial counsel's retention of Dr. Grant

to conduct a prison adaptability assessment was reasonable[]" also

fails. (Doc. 109 at 62.) In any event, Ferrell, the case Petitioner
relies on to support his argument that trial counsel performed
deficiently by neglecting to retain an adequate expert to conduct

a complete evaluation, is distinguishable.^^ (Id. at 61.)

In Ferrell, according to Petitioner, the Eleventh Circuit
concluded

that

trial

counsel

performed

deficiently

despite

retaining a mental health expert because the expert's evaluation
was too circumscribed. (Id. at 61-62.) In Eric Ferrell's state

habeas proceedings, his habeas counsel submitted new evidence that
he suffered from organic brain damage, mental illness, an epileptic
or seizure disorder, and was on the borderline for an intellectual

disability. Ferrell, 640 F.3d at 1213. In contrast, during the
sentencing phase of Ferrell's trial, the jury heard nothing about
his "disabling

mental

health

problems

and

diseases

including

Cain, 576 U.S. 305, 308 n.l, 135 S. Ct. 2269, 2274 n.l, 192 L. Ed.
2d 356 (2015) (quotation omitted).
While decisions of federal circuit

courts

are

not

clearly

established federal law, they can be helpful "to the extent that
the decisions demonstrate that the Supreme Court's pre-existing,
clearly established law compelled the circuit courts . . . to
decide in a definite way. . . ." Hawkins v. Alabama, 318 F.3d 1302,
1309 (11th Cir. 2003).
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 81 of 193

organic brain damage to the frontal lobe, bipolar disorder, and
temporal lobe epilepsy" or the effects of these mental health
issues in the 26 minutes that the mitigation witnesses testified
at trial. Id. at 1203, 1206.

In preparing for trial, trial counsel requested a report on
Terrell's '''mental capacity by a mental health expert," but it was
limited to whether he was intellectually disabled and suffered

from problems that would impact his waiver of Miranda rights. Id.
at 1211. In the mental health expert's report, he "noted that he

had

met

academic

with

Terrell only 'for

records

and

the

administering

achievement tests.' " Id.

purpose

of reviewing

his

intelligence/cognitive

and

{emphasis omitted). The expert also

"averred that he had not been asked to look for brain damage, that

he was provided with no material from counsel other than school
records,

and

interview,

or

that

do

he

was

anything

not

asked

to

for

that

else

perform

any

matter,

for

clinical

use

in

mitigation." Id. at 1213 (emphasis omitted). Despite this, the
state habeas court concluded Terrell's trial counsel "performed

reasonably by obtaining expert assistance in investigating the few
issues regarding

Terrell's mental functioning that

would

have

seemed of possible concern to a non-expert. . . ." Id. at 1226.
In concluding the state habeas court unreasonably found that
Terrell's

trial

counsel's

performance

was

not

deficient,

the

Eleventh Circuit explained trial counsel's request that the expert
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 82 of 193

only evaluate whether Ferrell was intellectually disabled and his

ability to interact with police was ^'unreasonably constricted"
given the red flags that had been raised about Terrell's mental
health. Id. at 1227. The expert had not been asked to look for

evidence of brain damage, was provided no material other than
school records, and was not asked to perform a clinical interview.
Id. The Eleventh Circuit also highlighted other deficiencies in

trial

counsel's

performance,

including

the

failure

to

ask

Ferrell's family about any topics related to his mental health.
Id. at 1228.

In this case, while Petitioner takes issue with the fact that

Dr.

Grant

was

allegedly

only

retained

to

conduct

a

prison

adaptability assessment, the tests Dr. Grant performed and the
information provided to Dr. Grant were far more substantial. As
the state habeas court highlighted. Dr. Grant met with Petitioner

multiple times for many hours to conduct extensive psychological
tests. (Doc. 52, Attach. 8 at 94; Doc. 48, Attach. 1 at 14.) Dr.

Grant conducted his standard battery of psychological tests which

screen for gross neurological and psychological impairments (Doc.
38, Attach. 8 at 114), which revealed Petitioner's profile was
"consistent with a diagnosis of Schizoaffective disorder." (Doc.
39, Attach. 9 at 61.) In fact. Petitioner points out that Dr. Grant

found evidence of organic brain dysfunction when he evaluated
Petitioner. (Doc. 112 at 7 n.l.) Additionally, as the state habeas
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 83 of 193

court found, the record reveals trial counsel provided Dr. Grant

with many of the materials Petitioner contends a mental health
expert would have found evidenced his psychiatric crisis around
the time of the

crimes (Doc. 52, Attach. 8

at 94), including

Petitioner's records from Candler Hospital and Memorial Medical
Center (Doc. 48, Attach. 11 at 9-36, 44-70).

The record also

reveals Dr. Grant possessed at least some of Petitioner's jail
records

regarding

his

suicide

attempts

and

mental

health

treatment. (E.g., Doc. 48, Attachs. 2-8.) Beyond that. Dr. Grant's

file contains notes regarding ^^CAT, MRI," ^^Memorial," and /"^Urban
Health Records," which are the records Petitioner contends showed

his somatic complaints and were evidence of his decompensation.
(Doc. 48, Attach. 1 at 29; Doc. 109 at 64-65.)

Additionally, unlike Ferrell, this is not a case where the

jury heard nothing about Petitioner's mental health problems due
to a circumscribed mental health investigation and evaluation. The

jury still heard multiple mental health professionals discuss
Petitioner's mental health issues over the years along with several
other witnesses who were able to comment generally on Petitioner's

mental

health

challenges.

For

these

reasons,

Ferrell

is

distinguishable. Based on the foregoing, the Court concludes the

Dr. Grant's introductory letter explained he enclosed ^^a copy
of [his] file on [Petitioner] which contains a complete copy of
everything [he] was able to locate on him." (Doc. 48, Attach. 1 at
2.)
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state

habeas

court

reasonably

determined

that

trial

counsel's

performance was not deficient for failing to retain a mental health
expert to replace Dr. Maish.
ii.

Prejudice

Even assuming trial counsel performed deficiently, the state
habeas court reasonably determined Petitioner was not prejudiced

by trial counsel's decision to replace Dr. Maish with Dr. Grant
and to not call Dr. Grant as a witness. (Doc. 52, Attach. 8 at 98,

100.)^'' The state habeas court based its' decision, in part, on the

Petitioner argues the state habeas court acted contrary to and
unreasonably applied Strickland's prejudice prong because it used
a "truncated" approach and failed to consider the "totality of the
available mitigation evidence" in its analysis. (Doc. 109 at 76,
148-49.) As the Eleventh Circuit recently explained, "[a] state
court's conclusion that there was no sentencing-phase prejudice is
reasonable
and
entitled
to
deference
if
its
prejudice

determinations with respect to each alleged deficiency, and with
respect to the deficiencies cumulatively, were reasonable." Pye,
50 F.4th at 1042; see also Stinski v. Ford, No. 4:18-CV-66, 2021

WL 5921386, at *29 n.9 (S.D. Ga. Dec. 15, 2021) ("[T]he Eleventh
Circuit explained . . . that Mt]he existence of item-by-item
analysis . . . is not inconsistent with a cumulative analysis,' as
the ^only way to evaluate the cumulative effect is to first examine
each piece standing alone.' "). In its order, the state habeas
court explained that it "ha[d] considered all of the evidence
presented during this proceeding by both Petitioner and Respondent
and the evidence presented at trial and [found] there [was] no
reasonable probability of a different outcome at either the guilt
or sentencing phase had trial counsel presented the collateral
evidence." (Doc. 52, Attach. 8 at 134.) Considering the state
habeas court recited the correct standard and the presumption is
that state courts know and follow the law, Woodford v. Visciotti,
537 U.S. 19, 24, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002),
the state habeas court's analysis was neither contrary to nor an

unreasonable

application

of

Strickland,

separate its analysis at times for clarity.
84

even

though

it

did

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 85 of 193

fact that the State could have elicited aggravating facts from Dr.
Grant. (Id. at 99.) As a result, the state habeas court concluded

Petitioner failed to demonstrate a reasonable probability of a

different outcome at trial had trial counsel presented a qualified
mental health expert such as Dr. Grant. (Id. at 100.)

Petitioner

argues

the

state

habeas

court

^'unreasonably

discounted all of the expert testimony to irrelevance" because it
would have opened the door to aggravating evidence. (Doc. 109 at
84 (citing Doc. 52, Attach. 8 at 99-100).) In Petitioner's view,
the fact that the evidence could have been damaging was irrelevant

because it was already before the jury in the form of Mr. Bowen's
testimony and Petitioner's letter. (Id. at 85.)

"Both

the

consistently

Supreme

'rejected

Court and
[the]

[the

Eleventh

prejudice

Circuit]

argument

[

]

have
where

mitigation evidence was a two-edged sword or would have opened the
door to damaging evidence.' " Dallas v. Warden, 964 F.3d 1285,
1310-11 (11th Cir. 2020) (quoting Ponticelli v. Sec'y, Fla. Dep't
of Corr., 690 F.3d 1271, 1296 (11th Cir. 2012)). The fact that a

jury already heard harmful information about a petitioner does not
defeat this consideration. See Raulerson, 928 F.3d at 999 ("We

also disagree with [petitioner] that, because the jury had already
heard

harmful

information

about

him,

presenting

evidence would not be counterproductive.").

85

mitigating

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 86 of 193

The record amply supports the state habeas court's finding
that Petitioner had revealed his sexual propensities to Dr. Grant.
(Doc. 48, Attach. 1 at 45, 53, 63.) Therefore, in light of the

potentially damaging effect of Dr. Grant's testimony, the state
habeas court reasonably determined the additional evidence could

have opened the door to damaging evidence, which negates a finding
of prejudice. Additionally, as detailed more fully in the following
sections, when the mitigating evidence at trial and the mitigating

evidence presented at the state habeas proceedings are placed sideby-side, the postconviction evidence was largely cumulative of
that presented at the sentencing phase. Finally, the extent of the

aggravating facts present in this case further negates a finding
of prejudice.

Based on the foregoing, the Court concludes the state habeas
court reasonably determined that trial counsel's performance was
not deficient for failing to retain a mental health expert to

replace Dr. Maish. Further, even if trial counsel had performed
deficiently, the state habeas court reasonably concluded that
Petitioner failed to show prejudice. Accordingly, the state habeas

court's determination regarding trial counsel's decision to retain
Dr. Grant was not contrary to, or an unreasonable application of,

clearly

established

federal law

determination of the facts.

86

or

based

on

an

unreasonable

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 87 of 193

b.

Two-Year Gap

i.

Deficiency

The state habeas court also rejected Petitioner's argument
that

trial

counsel

were

ineffective

in

the

investigation

of

Petitioner's life during the two-year period preceding the crimes.
{Doc. 52, Attach. 8 at 105-06.) Instead, the state habeas court
found ^^trial counsel conducted a reasonable investigation into the

two year time period leading up to the crime[s], but they were
unable to develop any significant evidence to present to the jury."
(Id. at 51, 106.)
Petitioner

asserts

the

state

habeas

court

unreasonably

applied Strickland to conclude that trial counsel's investigation
into Petitioner's mental health in the two years leading up to the
crimes was reasonable. (Doc. 109 at 63-64.) Similar to his argument
about Dr. Grant above. Petitioner maintains the state habeas court

only considered trial counsel's

record collection efforts and

^^failed entirely to account for the most glaring deficiency in
counsel's investigation: the failure to obtain an

appropriate

expert to evaluate [Petitioner] and testify about his lifelong
mental illness and its effect on him during the crime." (Doc. 109
at 63-64; Doc. 112 at 13.) Petitioner further contends that the
state

habeas

court's

^^conclusion

that

trial

counsel

could

not

obtain any records documenting [Petitioner's] mental health around
the

time

of

the

crime

is

also

87

an

unreasonable

factual

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 88 of 193

determination. . .

{Doc. 109 at 64.) Petitioner contends the

state habeas court made this determination based solely on trial

counsel's failure to find records of psychiatric hospitalizations

during

this

period

and

ignored

Petitioner's

jail

records,

emergency room hospital records, and accounts from his neighbors
and friends. (Id. at 63-66.)

As explained above, the Court has now rejected Petitioner's
argument that trial counsel failed to retain a mental health
expert. Thus, Petitioner's argument that the state habeas court
unreasonably■applied Strickland for failing to consider the fact
that trial counsel did not retain a mental health expert fails.
As

for

the

records

trial

counsel

uncovered.

Petitioner has

not shown the state habeas court's factual finding was unreasonable

or incorrect through clear and convincing evidence. Mr.
testified,

and the state habeas court noted,

Beauvais

that there was a gap

in time when Petitioner ''didn't really have any problems.

[were]

no hospitalizations,

265; Doc.

52, Attach.

no nothing."

8 at 51. )

(Doc.

41,

There

Attach.

1 at

The state habeas court summarized

the extensive efforts trial counsel took to investigate the two

years

leading up

to the

crimes,

including but

not

limited to,

talking to former employers, reviewing vocational applications and
related

evaluations,

records.

(Doc.

particularly

52,

noted

and

Attach.

test

obtaining
8

at

52-53.)

results
88

non-psychiatric
The

obtained

state

medical

habeas

during

court

some

of

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 89 of 193

Petitioner's medical visits and evaluations. (Id.) The evidence
that

trial

counsel

uncovered,

and

the

state

habeas

court

considered, included a ^^negative CT scan of [the] brain in 2000"

at Candler Hospital after Petitioner complained of chest pain,
irregular heartbeat, and passing out (Doc. 41, Attach. 5 at 112,
124); an MRI of the brain in 2001 at Memorial Medical Center which

resulted in a ^^negative exam" and no significant findings after he
complained of drop attacks (Doc. 41, Attach. 6 at 12-13); and a

psychological evaluation
occurred in 2002 in

performed

a

month

before

the

crimes

which Petitioner's hygiene and dress

were

described as ^'appropriate" (Doc. 44, Attach. 3 at 4 9). (Doc. 52,
Attach. 8 at 52-53.)

The

Court

must

note

the

state

habeas

court

found- "trial

counsel conducted a reasonable investigation into the two

year

time period leading up to the crime, but they were unable to
develop any significant evidence to present to the jury." (Id. at

51 (emphasis added).) Comparing the striking evidence of multiple
acute psychiatric hospitalizations before 1999 with the evidence
counsel uncovered in the two-year period, the Court does not find
that

the

state

habeas

court's

determination

that

trial

counsel

were unable to develop any significant evidence of Petitioner's
deteriorating

mental

health

was

unreasonable

or

clearly

and

convincingly erroneous. Moreover, the existence of Petitioner's
jail

records

after

the

crimes,
89

regardless

of

whether

they

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 90 of 193

documented Petitioner's ^^ongoing" mental state, does not render
the state habeas court's factual determination that trial counsel

found no significant evidence in the two-year period leading up to
the crimes unreasonable. Again, the state habeas court reasonably
determined that trial counsel's investigation of the two-year gap
was not deficient.

ii.

Prejudice

Even assuming trial counsel performed deficiently, the state
habeas court reasonably determined Petitioner was not prejudiced

by trial counsel's investigation of the two-year gap. In addition
to finding that Petitioner was not prejudiced by trial counsel's
decision to replace Dr. Maish with Dr. Grant, the state habeas
court

also

found

that

Petitioner

failed

to

establish

he

was

prejudiced by trial counsel's reasonable investigation into the

two-year

gap.

(Doc.

52,

determination, the state

Attach.

8

at

106.)

In

making

this

habeas court found that Dr. Schwartz-

Watts's and Dr. Cunningham's testimony was largely speculative.
(Id. at 107-08.) In particular, the state habeas court considered
that their opinions were based on the accounts of unreliable lay
witnesses, information that was ^""cumulative" or similar to that
available at the time of trial, and Petitioner's self-reporting.
(Id. at 114-15, 117-22.) The state habeas court also found their

testimony to be largely cumulative or aggravating. (Id. at 114,
117, 118, 124.) Finally, the state habeas court also considered
90

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 91 of 193

^^the truly heinous nature of Petitioner's crimes." (Id. at 106.)
As a result, the state habeas court found Petitioner failed to
demonstrate a reasonable probability of a different outcome at

trial had trial counsel presented this new information. (Id. at
108, 114.)

Unreasonably Discounting Evidence
Petitioner contends the state habeas court acted contrary to

and

unreasonably applied

Strickland

because it 'Miscounted to

irrelevance" the entirety of his expert's testimony. (Doc. 109 at
77, 79.) Petitioner raised general arguments about the state habeas

court discounting his experts' testimony because they relied on
unreliable lay witnesses, documents that were available at the
time of trial, and Petitioner's self-reporting.^® (Id. at 78, 8081.)

Petitioner argues the state habeas court acted contrary to

and unreasonably applied clearly established federal law because

it employed reasoning the Supreme Court condemned in Porter v.
McCollum, 558 U.S. 30, 130 S. Ct. 447, 175 L. Ed. 2d 398 (2009).
(Id. at 77, 79.) In Porter, the Supreme Court held a state court

Petitioner also argues that the state habeas court unreasonably
applied Strickland "to the extent" it found the lay witness
testimony to be unreliable because it was submitted in affidavit
form. (Doc. 109 at 79.) Petitioner, however, fails to cite to any
instance in which the state habeas court unreasonably discounted
affidavit evidence in this way. Accordingly, the Court finds
Petitioner's argument is without merit.
91

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 92 of 193

unreasonably applied clearly established federal law ^Vhen it
^either did not consider or unreasonably discounted the [mental

health]

mitigation

evidence

[that

Porter]

adduced

in

the

postconviction hearing.' " Sochor v. Sec'y Dep't of Corr., 685
F.3d 1016, 1029 {11th Cir. 2012) (citation omitted). The Supreme
Court also found ^^that it was unreasonable for the [state court]

to Miscount entirely' the impact that the testimony of Porter's

neuropsychologist might have had on the sentencing judge and jury
based on the fact that the experts offered by the state disagreed
with the conclusions of Porter's expert." Id.

Although not directly addressed by Petitioner, embedded in
the

state

habeas

court's

analysis

are

also

credibility-based

determinations that are findings of fact. Whatley v. Warden, Ga.
Diagnostic & Classification Ctr., 927 F.3d 1150, 1173, 1177 (11th

Cir. 2019) (explaining the state habeas court's finding that expert

opinions were ""speculative, at best" and not credible because they
were based on unreliable facts was a finding of fact). While a
state court can run afoul of clearly established federal law by

unreasonably discounting evidence, it is also true that ""[i]n the
absence of clear and convincing evidence, [a court has] no power
on federal habeas review to revisit the state court's credibility
determinations." Jenkins v. Comm'r, Ala. Dep't of Corr., 963 F.3d

1248, 1272 (11th Cir. 2020) (quoting Bishop v. Warden, GDCP, 726
F.3d 1243, 1259 (11th Cir. 2013)).
92

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 93 of 193

As previously mentioned, when evaluating whether Petitioner
was prejudiced by trial counsel's investigation into the two-year

gap, the state habeas court found the expert testimony was largely
speculative

because

they

relied

upon

unreliable

lay

witness

testimony. (Doc. 52, Attach. 8 at 107-08.) As to the unreliable
lay witness testimony. Dr. Schwartz-Watts and Dr. Cunningham both
emphasized Ginger's testimony, who the state habeas court found to
be unreliable. (Id. at 114-15, 119.) Petitioner contends the state

habeas court concluded "add. of the lay witness testimony relied

upon by the experts was unreliable[]" because of Ginger's criminal
history and drug use, and that the state habeas court's ^'wholesale
dismissal" of Petitioner's expert testimony on this ground was

unreasonable and contrary to Strickland. (Doc. 109 at 79 (emphasis
in original).)

Considering

the

evidence

upon

which

they

based

their

opinions, the Court does not find that the state habeas court made
unreasonable credibility-based determinations of fact in weighing
the opinions of Dr. Schwartz-Watts and Dr. Cunningham. Despite
Petitioner's claim to the contrary, there is no evidence that the

state habeas court concluded all of the lay witness's testimony
was

unreliable

and

discounted

the

expert's

testimony

solely

because of Ginger's credibility. And while the state habeas court
may have discounted the testimony of Dr. Schwartz-Watts and Dr.

Cunningham because they relied on information from Ginger, it did
93

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 94 of 193

not do so unreasonably since her account figured prominently in
both

of

their

evaluations.

Dr.

Schwartz-Watts

testified

that

Ginger told her ^'the two things that [were] most important" in
developing her opinion that Petitioner was decompensating in the

years between late 1999 and 2002 because she described two episodes
that were indicative of Petitioner's paranoid ideation. (Doc. 38,
Attach. 1 at 254.) The state habeas court also highlighted the

impact of Ginger's testimony on Dr. Cunningham's opinion (Doc. 52,
Attach. 8 at 119), examples of which are littered throughout his
testimony (Doc. 38, Attach. 4 at 107-09, 116-17). And, importantly.
Petitioner does not challenge the state habeas court's finding
that Ginger was a not a credible witness.
The

testimony

state

was

habeas

largely

court also

concluded

speculative

Petitioner's expert

because

they

relied

upon

documentation that was ^^cumulative," or available at the time of

trial, without Dr. Grant reaching the same conclusion. (Doc. 52,
Attach. 8 at 107-08, 115.) Regarding Dr. Schwartz-Watts, the state

habeas court found her testimony surrounding Petitioner's mental
health deterioration between his treatment at Charter in 1998 and

the crimes largely speculative because, despite having similar
evidence

of

Petitioner's

evidence

that

Dr.

Grant

emergency

room

concurred

opinion that ^^perhaps" Petitioner
115.)

94

with

was

visits,
Dr.

there

was

no

Schwartz-Watts's

decompensating. (Id.

at

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 95 of 193

In Petitioner's view, it is irrelevant that medical records

relied upon by the state habeas experts were cumulative of that
available at trial because trial counsel failed to utilize a mental

health expert. (Doc. 109 at 80-81.) Since Petitioner insists Dr.
Grant only conducted a prison adaptability evaluation. Petitioner
argues it was legally and factually unreasonable to decide Dr.
Schwartz-Watts's findings were speculative because Dr. Grant did
not find Petitioner was deteriorating in the years leading up to

the

crimes.

(Id.)

Again,

the

Court

has

already

rejected

Petitioner's argument that trial counsel did not retain a mental
health

expert.

Petitioner's

See

Analysis

attempt

to

Section

I.D.l.a.i,

challenge, the

state

supra.

habeas

Thus,

court's

findings on this ground is not persuasive.
The fact that the experts relied on Petitioner's own reports
of information

Grant

also

that

factored

he

had

into

not

the

revealed to trial counsel or

state

habeas

court's

Dr.

calculation.

(Doc. 52, Attach. 8 at 117-18, 120-21.) Petitioner similarly argues
it was unreasonable for the state habeas court to discredit the

experts' opinions because Petitioner did not report his symptoms
to trial counsel or Dr. Grant because Dr. Grant's evaluation was

limited to prison adaptability. (Doc. 109 at 81.)
Even if the Court had not already rejected this argument.

Petitioner does not challenge the state habeas court's finding
that Petitioner did not inform trial counsel or Dr. Grant of much

95

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 96 of 193

of the information Petitioner conveyed to the state habeas experts

that they relied on to develop their opinions. See Dallas, 964
F.3d at 1311 (noting petitioner gave his attorneys no indication
abuse occurred when evaluating whether he was prejudiced by trial
counsel's failure to introduce such evidence). While Petitioner

claims the state habeas court failed to acknowledge the bulk of

his

experts'

opinions

came

from

medical

records

and

their

evaluations of Petitioner (Doc. 109 at 80), the focus is on the

ultimate legal conclusion, not ^'whether the state court considered
and discussed every angle of the evidence[.]" Pye, 50 F.4th at
1051

n.20.

experts'

Moreover,

testimony

on

Petitioner

this

omits

issue.

Dr.

critical

parts

of

Schwartz-Watts's

the

full

testimony on the matter was that the ^'main information [came] from
[her] clinical evaluation of [Petitioner] and the things that he

told me he was thinking around that period of time." (Doc. 38,
Attach. 1 at 260.) Dr. Cunningham similarly relied on Petitioner's
reporting. (Doc. 38, Attach. 4 at 49, 80-81, 84, 227.) Both experts

confirmed, however, that Petitioner reported many issues to them
for the first time. (Doc. 38, Attach. 1 at 279; Doc. 38, Attach.
4 at 227.)

All in all, it was not unreasonable for the state habeas court

to discount the experts' testimony to some degree based on these

credibility concerns when conducting its prejudice analysis.

96

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 97 of 193

Cumulative Evidence

The

state

habeas

court

found

the

documentation

of

Petitioner's mental health in the time leading up to the crimes

and Dr. Schwartz-Watts's and Dr. Cunningham's expert testimony on
Petitioner's mental health problems were largely cumulative of

that presented at trial. {Doc. 52, Attach. 8 at 107, 114, 118,
123-24.) Petitioner counters that the state habeas court failed to

recognize the distinction between the evidence presented at trial
of his psychiatric hospitalizations as a teenager and the evidence
he

presented

at

the

state

habeas

proceedings

through

expert

witnesses about his mental health decline leading up to the crimes.

(Doc. 10.9 at 65-66, 83-84.) According to Petitioner, the failure
to appreciate these distinctions renders the state habeas court's
cumulative conclusion factually and legally unreasonable. (Id. at
66, 83-84.)

''When reweighing the aggravating circumstances against the
totality of the mitigating evidence - again, what was introduced
at his original trial and what [Petitioner] presented in his

postconviction

proceedings - [courts]

consider the cumulative

nature of the evidence." Dallas, 964 F.3d at 1308. "[A] petitioner

cannot satisfy the prejudice prong of the Strickland test with
evidence that is merely cumulative of evidence already presented
at trial." Ledford

v.

Warden,

Ga.

Diagnostic

&

Classification

Prison, 818 F.3d 600, 649 (11th Cir. 2016) (quotation omitted).
97

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 98 of 193

That is because where

mitigation

^new' evidence largely duplicate[s] the

evidence

probability

that

at

the

trial[]"
additional

there

^'is

evidence

no

[the

reasonable
petitioner]

presented in his state habeas proceedings would have changed the
jury's verdict." Cullen v. Pinholster, 563 U.S. 170, 200, 131 S.
Ct. 1388, 1409, 179 L. Ed. 2d 557 (2011).
To

determine

conclusion
evidence

was
with

postconviction

whether

a

unreasonable,
the

state

a

habeas

court

evidence

will

presented

proceedings." Holsey

v.

court's

^^compare
during

Warden, Ga.

cumulative

the
the

trial
state

Diagnostic

Prison, 694 F.3d 1230, 1260 (11th Cir. 2012). In doing so, the
Court shall

keep in mind that the United States Supreme Court, [the
Eleventh Circuit], and other circuit courts of appeals

generally hold that evidence presented in postconviction
proceedings is ^"cumulative" or ""largely cumulative" to
or ""duplicative" of that presented at trial when it tells
a more detailed version of the same story told at trial
or provides more or better examples or amplifies the
themes presented to the jury.
Id. at 1260-61 (citations omitted); see also Wong, 558 U.S. at 22-

23, 130 S. Ct. at 387-88 (holding that ""[s]ome of the [additional
mitigating]
evidence

evidence

[the

was

petitioner]

merely

cumulative

actually

of

presented"

the

humanizing

because

""[t]he

sentencing jury was . . . "well acquainted' with [the petitioner's]

background and potential humanizing features"); Boyd v. Allen, 592
F.3d 1274, 1297-98 (11th Cir. 2010) (finding that much of the

98

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 99 of 193

evidence

presented

by

the

petitioner

during

post-conviction

proceedings ^'was in some measure cumulative" of the trial evidence
because ^^much (although not all) of the ^new' testimony introduced

at the post-conviction hearing would simply have amplified the
themes

already

raised

at

trial").

Evaluating

Supreme

Court

precedent, the Eleventh Circuit has also found evidence cumulative
""where it "substantiate[s],' "support[s],' or "explain[s]' more

general testimony provided at trial." Raheem, 995 F.3d at 925-26
(quoting Cullen, 563 U.S. at 200-01, 131 S. Ct. at 1409-10).
As

the

Court

has

detailed.

Petitioner's

trial

counsel

presented substantial evidence about Petitioner's mental health.
To overcome this barrier. Petitioner presented the live testimony
of Dr. Schwartz-Watts, Dr. Cunningham, Dr. Fiano, and the affidavit
testimony of several neighbors and friends at the state habeas
proceeding.

Dr.

proceedings

that

Schwartz-Watts

Petitioner

opined

at

suffered

the

from

state

habeas

schizoaffective

disorder, bipolar type and explained that he might have received
different diagnoses at various times depending on how his symptoms

presented. (Doc. 38, Attach. 1 at 229-30.) Dr. Cunningham similarly
testified at the state habeas proceedings that Petitioner suffered
from

schizoaffective

disorder

and

explained

that

his

symptoms

presented differently because it had different elements. (Doc. 38,
Attach.

4

at

59-60.)

On

the

same

note,

however.

Dr.

Negrin

testified at trial that Petitioner's diagnosis at discharge from
99

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 100 of 193

Charter in November 1996 was bipolar disorder mixed. {Doc. 34,
Attach. 1 at 19.) Dr. Nagelberg testified at trial that Petitioner

displayed prodromal symptoms of schizophrenia when he evaluated
Petitioner in 1998. (Doc. 34, Attach. 3 at 9-10.)

Next,

Dr.

Schwartz-Watts

testified

at

the

state

habeas

proceedings that Petitioner's history was ^"replete" with symptoms
of

a

psychotic

disorder,

including

disorganized

thinking,

delusions, hallucinations, and deterioration in functioning. (Doc.
38, Attach. 1 at 231.) At trial. Dr. Negrin testified about how

Petitioner

was

psychotic,

hallucinating, feared

meaning

someone

was

he

after

was

him,

delusional,

and

his

thought

processes were off during one of his hospitalizations. (Doc. 34,
Attach.

1

Petitioner

at

11,

29.)

Dr.

Nagelberg

also

testified

he

felt

was suffering from a psychotic disorder and showed

evidence of a delusional disorder. (Doc. 34, Attach. 3 at 9-10.)

In particular, both Dr. Schwartz-Watts and Dr. Cunningham
described

Petitioner's

auditory

hallucinations,

including

the

names of the voices Petitioner described as well as the different

personalities. (Doc. 38, Attach. 1 at 234; Doc. 38, Attach. 4 at
104,

110-11.)

As

detailed

above,

in

his

trial

testimony.

Dr.

Nagelburg described some of the exact same names and personalities.
(Doc. 34, Attach. 3 at 4-5.)

Concerning Dr. Ackerman's report. Dr. Schwartz-Watts and Dr.
Cunningham

both

discounted

the

significance

100

of

Dr.

Ackerman's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 101 of 193

evaluation of Petitioner as cursory and explained how it failed to

fully address Petitioner's mental illness. (Doc. 38, Attach. 1 at
249;

Doc.

38,

Attach.

4

at

151-54.)

Trial

counsel

similarly

challenged the State's arguments about Dr. Ackerman's report using
Dr. Nagelberg's testimony. Dr. Nagelberg testified he would have
been ^'surprised" to learn that Petitioner received a clean bill of
mental health in 1999. (Doc. 34, Attach. 3 at 14.) Dr. Nagelburg
further averred: ^^[I]f there was a clean bill of health a year

after I had seen him, that either there was some sort of divine
intervention or he was not fully assessed." (Id. at 15.)

At the state habeas proceeding. Petitioner also presented

through live and affidavit testimony some of Petitioner's bizarre
behavior in the months leading up to the crimes. Ms. Dahlquist
testified that in late 2001, Petitioner carried on conversations

with people who were not there. (Doc. 38, Attach. 8 at 77.) Ms.

Chappell recalled Petitioner squatting in the front yard days in

a row for long periods of time weeks or months before the crimes.
(Id.

at

64-65.)

Ginger

testified

during

the

state

habeas

proceedings that Petitioner stored opened food in his pockets, he
ate food that had been sitting out for several days, he insisted

she take animal pictures down before he entered her home, and his
hygiene declined. (Doc. 38, Attach. 2 at 109-12.) Dr. SchwartzWatts and Dr. Cunningham commented on these incidents. (Doc. 38,
Attach. 1 at 254; Doc. 38, Attach. 4 at 107, 108, 109.) At trial,
101

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 102 of 193

however, the jury also heard examples of Petitioner's bizarre
behavior. For instance, Dr. Negrin testified that Petitioner was
admitted to Charter Hospital in February 1997 after being found

wandering in the woods and that he feared someone was after him.
(Doc. 34, Attach. 1 at 20, 29.) Trial counsel also highlighted the

fact that Petitioner created his insanity party countdown during
the time leading up to the crimes. (Doc. 32, Attach. 1 at 67-70;
Doc. 32, Attach. 2 at 4, 23-24.)

After a thorough review of the record, the Court is convinced
that, all in all, the evidence in the state habeas proceedings

addressing Petitioner's mental health was largely cumulative of
the evidence presented at trial.

Because

Petitioner provides

nothing other than a conclusory argument that his state habeas

experts' testimony would be more mitigating than the testimony
from the medical professionals that testified at trial, the Court

rejects this argument. Additionally, the Court also recognizes

here that Petitioner introduced evidence specifically addressing
the period after Petitioner left Coastal Georgia (e.g.. Doc. 38,
Attach. 1 at 252-53; Doc. 38, Attach. 4 at 103-07) and Dr. Fiano's
testimony that Petitioner had deficits in executive functioning,

including working memory, attention and concentration, and verbal

Petitioner's argument that the state habeas court unreasonably
found that trial counsel's sentencing phase presentation was
reasonable because the evidence was cumulative fails for the same

reasons. (Doc. 52, Attach. 8 at 58-59, 65-66.)
102

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 103 of 193

fluency {Doc. 38, Attach. 2 at 164, 177). Even if this Court were
to consider this testimony ^"new" mental health evidence that did
not reach the jury, the Court believes it constitutes either
additional
serious

evidence

mental

amplifying

health

issues

the
or

theme

more

that

Petitioner

detailed

evidence

had
that

substantiated, supported, or explained his mental health issues.
Raheem, 995 F.Sd at 925-26; see also Pye, 50 F.4th at 1054 (finding
'Mf]urther evidence from corrections officers as to [petitioner's]

nonviolent nature [presented at the state habeas proceeding] would
have been at least partially cumulative[]" of his family members'
testimony that he was not violent and kind). While the evidence in
the state habeas proceedings might have told a more detailed story
of Petitioner's mental health issues, it was not a substantially

different story than the one presented at trial. Holsey, 694 F.Sd
at 1267 (explaining that in cases where a ^'cumulative" finding was

unreasonable, evidence presented in the state habeas proceedings
did not tell the same story as the evidence presented at trial).

Consequently, the state habeas court was not unreasonable in its
determination

that

Petitioner's

experts'

testimony

and

the

documentary postconviction evidence on Petitioner's mental health
was largely cumulative

of that

presented at trial and is

not

sufficient to establish prejudice.
Finally, as to this purportedly new evidence, this Court notes

that

the

"circumstances

surrounding
103

the

crimes

[Petitioner]

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 104 of 193

committed . . . would have undermined the probative value of this
additional evidence." Raheem, 995 F.3d at 926 (concluding the state

habeas

court

petitioner's
introduced

did

brain

which

not

unreasonably

damage

against

showed calculation,

weigh

the

evidence

aggravating

of

the

evidence

planning, and efforts to

conceal the crimes). Against Petitioner's experts' testimony that
he lacked sound judgment, good decision-making skills, and healthy
impulse control (Doc. 38, Attach. 1 at 264; see also Doc. 38,
Attach. 2 at 164, 173-74, 177), the record reveals that Petitioner

had ^^extensive opportunities to consider his actions" as over
several hours he and Mr. Stinski broke into multiple cars and
another home, tortured and murdered Ms. Pittman and Kimberly, and

burned down the Pittman residence, destroying evidence of their
crimes in the process. Raheem, 995 F.3d at 926.
Opening the Door to Damaging Evidence
As for Dr. Schwartz-Watts, the state habeas court found that

her testimony was also ^^aggravating." (Doc. 52, Attach. 8 at 118.)
In particular, the state habeas court noted that Dr. SchwartzWatts testified Petitioner was under the delusion he was a serial

killer. (Doc. 52, Attach. 8 at 117; Doc. 38, Attach. 1 at 277.)

The state habeas court also highlighted that Dr. Schwartz-Watts

confirmed that there was ^'no question" Petitioner ^Mknew] right
from wrong." (Doc. 52, Attach. 8 at 117; Doc. 38, Attach. 1 at
261-62.) Going further, this Court notes that Dr. Schwartz-Watts
104

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 105 of 193

testified

that

Petitioner

told

her

that

his

hallucinations

had

''nothing to do with this crime[,]" and that they did not tell him
to do it. {Doc. 38, Attach. 1 at 278.)

As

previously

unreasonable for the

expert

testimony

mentioned.
state

because

Petitioner

habeas court to

it

would

have

argued

it

was

discount all of the

opened

the

door

to

"aggravating evidence." (Doc. 109 at 84.) Petitioner specifically
takes issue with the state habeas court and Respondent taking Dr.
Schwartz-Watts's

comment

about

Petitioner

believing

he

was

a

serial killer out of context. (Id. at 85 n.27.)

Again, "[b]oth the Supreme Court and [the Eleventh Circuit]
have consistently 'rejected [the] prejudice argument [ ] where

mitigation evidence was a two-edged sword or would have opened the
door to damaging evidence.' " Dallas, 964 F.Sd at 1310-11 (citation
omitted). In fact, "in addition to there being no per se rule of

prejudice

based

on

unpresented

mental-health

evidence, '
[the

Eleventh Circuit has] held that "the indication of brain damage
. can

often

hurt the

defense

as

much

or

more

than it

can

help."'" Pye, 50 F.4th at 1052 (citations omitted). Thus, it was
not unreasonable for the state habeas court to consider how

Dr.

Schwartz-Watts's testimony could have been damaging or used as a

two-edged sword.

in the

Court's opinion, it is particularly

20 This Court notes that neither Dr. Cunningham's nor Ginger's
testimony was devoid of similarly injurious testimony. For
105

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 106 of 193

incredible for Petitioner to suggest he was prejudiced by trial
counsel's failure to rebut the State's argument that Petitioner

^'knew

right from wrong" and ^'was not psychotic" due to trial

counsel's failure to retain a mental health expert and investigate

the two-year gap when his own mental health expert testified to
the same effect at the state habeas proceeding. (Doc. 109 at 71.)
Aggravating Factors

Finally, when evaluating whether Petitioner was prejudiced by
trial counsel's investigation into the two-year gap, the state
habeas court

noted that Petitioner failed to show

a

reasonable

probability of a different outcome when weighing ^^the truly heinous
nature of Petitioner's crimes" against the newly acquired evidence

presented in the state habeas proceedings and that presented at
trial.

(Doc.

52,

Attach. 8

at

106.)

This

conclusion

was

not

unreasonable.

example. Dr. Cunningham testified Petitioner suffered from
polysubstance abuse and dependence and that his drinking and drug
use intensified in the months leading up to the crimes. (Doc. 38,
Attach. 4 at 66, 79.) Dr. Cunningham recounted that Petitioner

reported "^Mrink[ing] until he was on the ground, puking, and then
would drink some more, until there wasn't any left. He was smoking

marijuana . . . one to three times monthly, sometimes laced with
opium[.]" (Id. at 79.) Ginger also testified to her drug use with
Petitioner. (Doc. 38, Attach. 2 at 142-43.) The Eleventh Circuit
has been clear that ^^evidence of drug and alcohol use is often a

^two-edged sword,' that provides an independent basis for moral
judgment by the jury." Sochor, 685 F.3d at 1032 (quoting Suggs v.
McNeil, 609 F.3d 1218, 1231 (11th Cir. 2010)).
106

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 107 of 193

a case challenging a death sentence,

^the question is

whether there is a reasonable probability that, absent the errors,
the

sentencer

aggravating

. .

and

.

would

have

mitigating

concluded

circumstances

that

the

did

balance

not

of

warrant

death.' " Cooper v. Sec'y, Dep't of Corr., 646 F.3d 1328, 1353
{11th Cir. 2011) (quoting Strickland, 466 U.S. at 695, 104 S. Ct.

at 2069). When

assessing prejudice, a court must reweigh the

evidence in aggravation against the" totality of the available
mitigation

evidence

presented

at

trial

and

in

the

habeas

proceeding, including the good and the bad. Holsey, 694 F.3d at
1268;

Dallas,

964

F.3d

at

1306.

The

Eleventh

Circuit

has

^'repeatedly held that even extensive mitigating evidence wouldn't

have been reasonably likely to change the outcome of sentencing in
light of a particularly heinous crime and significant aggravating
factors." Pye, 50 F.4th at 1049.

Here, the evidence of Petitioner's guilt was overwhelming and

highly aggravating. As the Court set forth at the beginning of
this order, the Georgia Supreme Court thoroughly described the
actions of Petitioner and Mr. Stinski. Setting aside the disputed
evidence introduced in Petitioner's letter to Mr. Bowen, the jury

heard Petitioner's statement to police where he described cutting
the power to the victims' residence before burglarizing it; beating
and stabbing Ms. Pittman by flashlight for about an hour as she
pleaded

"Why?

Why?" all

while

her

107

thirteen-year-old

daughter

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 108 of 193

Kimberly was guarded by Mr. Stinski in the next room; and binding,
stabbing, beating, and throwing bricks at Kimberly before setting
the residence on fire and leaving her to burn alive. 0^ Kelley, 284
Ga. at 770-71, 670 S.E.2d at 399-400. ^'With crimes like this one,

that are ^carefully planned, or accompanied by torture, rape or

kidnapping,' [the

Eleventh

Circuit

has] often

held

^that the

aggravating circumstances of the crime outweigh any prejudice
caused when a lawyer fails to present mitigating evidence.' " Boyd,
592 F.Sd at 1297 (citations omitted). In summary, ^'[n]either the

court's

weighing

determination
application

of these factors

was
of

contrary

federal

to

law,

or
or

nor

its

ultimate

based .on
based

on

prejudice

an

unreasonable

an

unreasonable

determination of the facts." Pye, 50 F.4th at 1043.

Based on the foregoing, the Court concludes the state habeas
court reasonably determined that Petitioner failed to show that
his

trial

counsel's

investigation

of

the

two-year

gap

was

deficient. Moreover, the state habeas court reasonably concluded
Petitioner failed to show he was prejudiced. Accordingly, the state

habeas court's decision regarding trial counsel's investigation
into the two-year gap was not contrary to, or an unreasonable
application of, clearly established federal law or based on an
unreasonable determination of the facts.

108

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 109 of 193

c.

Jail Records

i.
The

state

Deficiency

habeas

court

determined

that

trial

counsel

reasonably decided against presenting Petitioner's jail records as
evidence of his mental state because they included evidence that

contradicted trial counsel's prison adaptability strategy. {Doc.
52, Attach. 8 at 124-25.) Petitioner contends the state habeas

court

^^unreasonably

counsel's

failure

to

applied

Strickland"

introduce

these

to

conclude

records

^Vas

trial

part

of

a

reasonable,' tactical decision" because trial counsel abandoned

their

prison

adaptability

strategy,

showing

the

state

habeas

court's reasoning was merely post-hoc rationalization. (Doc. 109
at

66-67.)

Petitioner

asserts trial

counsel admitted

the

jail

records would have been useful and consistent with their penalty

phase strategy. (Id. at 66-67, 67 n.21 (citing Doc. 38, Attach. 3
at 110-11).)

As an initial matter, 'Mt]he question of whether an attorney's

actions

were actually the

decision

is

an

issue

of

product of a tactical or strategic
fact,

and

a

state

court's

decision

concerning that issue is presumptively correct." Fotopoulos v.
Sec'y,

Dep't of Corr.,

Therefore,

rather

than

516 F.3d

being

an

1229,

1233 (11th

unreasonable

Cir.

2008).

application" of

Strickland, Petitioner's argument seems to address whether the

109

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 110 of 193

state

habeas

court's

decision

was

based

on

an

unreasonable

determination of the facts. 28 U.S.C. § 2254(d)(2).

The state habeas court's finding that part of trial counsel's

strategy was to show Petitioner could adapt to a prison environment
was not unreasonable or clearly and convincingly erroneous. While
trial counsel may have decided against presenting Dr. Grant's

testimony regarding prison adaptability, there is no evidence in
the record that trial counsel abandoned its strategy to show that

Petitioner could make an adequate adjustment to prison life. In

the Court's opinion, trial counsel's decision to forgo Dr. Grant's

testimony shows the opposite is true; trial counsel aimed to
refrain from introducing any evidence that showed the jury could
not safely put Petitioner in prison for the rest of his life. (Doc.
38, Attach. 3 at 209-10). In fact, Mr. Edwards confirmed during
the state habeas proceedings that he mentioned Petitioner's status

at Coastal Georgia during his closing argument to emphasize that
Petitioner could be stabilized if he was in a highly structured
environment and that he did, not want to introduce evidence of
Petitioner's violent behavior. (Id. at 93, 120.)

Having found prison adaptability was part of trial counsel's

strategy. Petitioner has not rebutted the state habeas court's
finding

that

trial

counsel's

decision

against

introducing

Petitioner's aggravating jail records was to avoid introducing
evidence that would contradict their strategy. Accordingly, the
110

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 111 of 193

state

habeas

court

strategic decision

reasonably

concluded

that

trial

counsel's

was not unreasonable, and the state habeas

court's decision was not based on an unreasonable determination of

facts. See Rhode, 582 F.3d at 1286 (^^Counsel's decision not to

introduce

[petitioner's]

[adolescent

hospital

records]

and

juvenile probation records at trial was strategically reasonable
because

the

jury

could

have

seen

them

as

aggravating

and

inconsistent with counsel's argument that [petitioner] could adapt
to prison.").
ii.

For similar

Prejudice

reasons, even if trial counsel had

performed

deficiently. Petitioner was not prejudiced by trial counsel not

introducing evidence of his mental health issues through his jail
records.

Along

similar

lines,

the

state

habeas

court

found

Petitioner failed to demonstrate he was prejudiced by trial counsel

not presenting his jail records as they were aggravating and could
have opened the door to evidence that contradicted the prison
adaptability strategy. (Doc. 52, Attach. 8 at 125-27.) Petitioner
again argues it was '"completely unreasonable" for the state habeas
court to conclude Petitioner was not prejudiced by trial counsel's

failure to introduce his jail records because they abandoned prison
adaptability as a strategy. (Doc. 109 at 86.)

The Court has already explained that there is no evidence
that trial counsel abandoned its prison adaptability strategy, and
111

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 112 of 193

evidence

that

Petitioner

had

been

cited

for

infractions

like

fighting, possessing drugs, and destroying state property could
certainly have been used as a two-edged sword. (Doc. 52, Attach.
8

at

124-26.)

Therefore,

the

state

habeas

court

reasonably

determined the jail records could have opened the door to damaging
evidence, and Petitioner was not prejudiced by the failure to
introduce such evidence.

Based on the foregoing, the Court concludes the state habeas

court reasonably determined that trial counsel were not deficient

for failing to present his jail records. Further, even if trial
counsel

had

performed

deficiently,

the

state

habeas

court

reasonably concluded that Petitioner failed to show prejudice.
Accordingly,

the

state

habeas

court's

decision

regarding

presenting Petitioner's jail records was not contrary to, or an

unreasonable application of, clearly established federal law or
based pn an unreasonable determination of the facts.

d.

Neuropsychological Impairments

Petitioner maintains his arguments were that ''trial counsel

were ineffective for failing to investigate and present evidence
of [Petitioner's] mental illness[,]" that "[tjrial counsel acted

unreasonably, in hiring Dr. Grant because they narrowed his frame
of inquiry to

prison

adaptability[,]" and

that trial counsel

"should have presented an expert to testify on [Petitioner's]

neuropsychological impairments, as Dr. Fiano did at state habeas."
112

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 113 of 193

(Doc. 109 at 68, 69, 70.) As a result. Petitioner argues that the

state habeas court's findings regarding trial counsel's decision
against having Dr. Grant testify or to hire Dr. Grant instead of
Dr. Fiano or Dr. Cunningham are irrelevant. (Id. at 68-70.) In the
Court's view, the state habeas court addressed Petitioner's claims
that ^Mt]rial counsel unreasonably failed to replace Dr. James
Maish

with

a mental health expert" and

unreasonably failed to

present a neuropsychologist who could explain the ^'indications in
Dr.

Grant's

neuropsychological testing

of

significant

organic

brain impairment. . . ." (Doc. 51, Attach. 20 at 30, 32-33.) The

state habeas court merely rejected Petitioner's claim that trial
counsel failed to hire a mental health expert replacement and

explained why trial counsel's ultimate decision to not have him
testify

was

reasonable.

Notwithstanding,
ineffectiveness

^Mi]f
claim

it
on

(Doc.

52,

is

easier

the

ground

Attach.
to

of

8

at

dispose

lack

of

88.)
of

an

sufficient

prejudice," the Court need not address both prongs. Strickland,
466 U.S. at 697, 104 S. Ct. at 2069. Accordingly, even though, as

explained above, the Court found Petitioner did not successfully
rebut the state habeas court's factual finding that trial counsel

retained Dr. Grant as a mental health expert, the Court finds that
the state habeas court reasonably determined that Petitioner was

not prejudiced

by the omission

of

113

Dr.

Fiano's findings about

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 114 of 193

Petitioner's neuropsychological impairments. {Doc. 52, Attach. 8
at 102.)
When the state habeas court evaluated whether Petitioner was

prejudiced

by trial counsel's

failure

to

present

Dr.

Piano's

findings, the state habeas court indicated that Dr. Piano did not
communicate with Dr. Grant when considering her evaluation of Dr.

Grant's testing and notations. (Id. at 103.) Purther, while Dr.
Grant purportedly did not assess some aspects of frontal lobe
executive

functioning

like

concept

formation

and

hypothesis

generation, the state habeas court noted that Dr. Piano's own
testing

revealed

Petitioner

^^performed

quite

well

on

tasks

assessing hypothesis generation, problem solving, and cognitive
flexibility[.]" (Id. at 103-04.) The state habeas court also found
Dr. Piano's conclusions regarding Petitioner's working memory and

cognitive process conflicted with evaluations Petitioner received
over the years indicating his memory was good and his cognitive
process was intact. (Id. at 104-05.) Given the conflicting nature

of her findings regarding Petitioner's executive functioning, the
state habeas court concluded there was no reasonable probability
the result of the proceeding would have been different. (Id. at
105.)

The

state

habeas

court

also

noted

that

there

was

no

indication trial counsel would have called Dr. Piano to testify

given her exposure to the same aggravating facts to which Dr. Grant
was privy. (Id.)
114

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 115 of 193

Like Dr. Schwartz-Watts and Dr. Cunningham, Petitioner argues

the state habeas court unreasonably applied Strickland because it
^^unreasonably discounted Dr. Fiano's testimony to conclude that
[Petitioner] was not prejudiced by trial counsel's failure to

present evidence of organic brain dysfunction." (Doc. 109 at 8182.) According to Petitioner, the Court should reject the- state
habeas court's assessment of Dr. Fiano's testimony because the
state

habeas

regarding

court

made

an

erroneous

Dr. Fiano's communication

evaluation.
unreasonable

(Id.

at

for

82.)

the

Also,

state

factual

with

Dr.

Petitioner

habeas

court

determination

Grant about his
maintains

to

it

consider

was

other

provider's cursory mental status exams ^"conflicting" with Dr.
Fiano's neuropsychological tests because they are not comparable
tests, and it was unreasonable to discount her findings about his

executive

functioning

on

this

ground.

(Id.)

Petitioner

again

argues the state habeas court unreasonably discounted Dr. Fiano's
testimony because it would have opened the door to aggravating
evidence. (Id. at 84 (citing Doc. 52, Attach. 8 at 105).)
Petitioner is correct that Dr. Fiano eventually discussed Dr.
Grant's evaluations

with

Despite

habeas

the

state

him.

(Doc. 41, Attach. 2 at 266-67.)

court's

misstatement

regarding

Dr.

Fiano's contact with Dr. Grant, the Court will not ignore the state

habeas court's assessment of Dr. Fiano's testimony. Pye, 50 F.4th

at 1035 (""[E]ven if a petitioner successfully carries his burden
115

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 116 of 193

under § "2254(e)(1)—showing by clear and convincing evidence that
a particular state-court factual determination was wrong—he does

not necessarily meet his burden under § 2254(d)(2)[.]"). The state

habeas court's mistake regarding Dr. Fiano's communication with
Dr.

Grant

was

just

one

aspect

of

the

state

habeas

court's

assessment.

As for the state habeas court's consideration of the findings

regarding Petitioner's memory and cognitive functioning, the state
habeas court heard Dr.

Fiano's explanation of the differences

between the memory tests. (Doc. 38, Attach. 2 at 191-93.) When

questioned about why her findings did not conflict with earlier
findings that Petitioner's memory and cognition were intact. Dr.

Fiano explained that it was because those tests were conducted in
a matter of minutes compared to her neuropsychological evaluation

looking at a longer period of time. (Id.) Having heard Dr. Fiano's
explanation, the state habeas court still found that there was
some

conflict

between

her

findings

and

Petitioner's

earlier

medical records. (Doc. 52, Attach. 8 at 104-05.) While Petitioner

may disagree

with the state habeas court's assessment on the

importance of this matter, he has not shown the factual finding
that

Dr.

Fiano's

results

conflicted

with

earlier

results

was

unreasonable or clearly and convincingly erroneous. Pye, 50 F. 4th
at 1050 (^MI]t was not clearly and convincingly erroneous (or

unreasonable more generally) for the state court to
116

view the

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 117 of 193

evidence

of

Pye's

alleged

brain

damage

as

conflicting

and

to

question the severity of the condition it reflected."). Thus, as

previously discussed in Analysis Section I.D.l.b.ii., it was not
unreasonable for the state habeas court to give some weight in its

prejudice determination to the fact that Dr. Fiano's findings on
Petitioner's executive functioning conflicted with other evidence
in the record. Id. at 1045. Moreover, even if this assessment was

unreasonable.

Petitioner

does

not

dispute

that

Dr.

Fiano

was

exposed to some of the same aggravating information as Dr. Grant,

and as explained in Analysis Section I.D.l.a.ii, this, along with
the extensive aggravating facts in this case, further negate a
finding of prejudice.
2.

Childhood and Background
a.

Incest and Sexual Trauma Expert

i.

Deficiency

Petitioner argues that trial counsel unreasonably failed to

investigate and present evidence that he was the victim of incest
at

the

hands

of

his

mother.

(Doc.

109

at

87-89.)

Petitioner

contends they could have delivered this information if they had
taken ''the

necessary

steps." (Id.

at

89.)

Had

trial

counsel

sufficiently investigated evidence of incest. Petitioner contends
trial counsel would have discovered additional witnesses willing

to testify about the inappropriate behavior they had witnessed
between

Petitioner

and

his

mother
117

and

records

revealing

that

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 118 of 193

Petitioner's mother reported a history of incest in their family.
(Id. at 90-91.)

Regarding both incest by his mother and sexual abuse by his
stepfather,

Petitioner

deficiently

because

also

they

contends
neglected

trial
to

counsel

hire

an

performed
expert

to

investigate, confirm, and explain the incest and other sexual
abuse. (Id. at 91, ICQ.) As a result. Petitioner argues trial

counsel presented no evidence of incest and only lay witness

testimony of sexual abuse. (Id. at 103.) Petitioner recounts in
detail the testimony experts like Dr. Cunningham and Dr. Hodges
could have offered. In summary, an expert could have testified
that Petitioner's mother sexually assaulted him from a young age

and increased her efforts in the months leading up to the crimes,

which was a ^'long way" from what the jury heard about emotional
incest, and about the effects it had on him. (Id. at 92-93, 10507.) Trial counsel could have also presented a convincing expert's

explanation for Petitioner's inappropriate, and sometimes violent,
behavior and why it corroborated allegations of sexual abuse. (Id.
at 104-05.)

As

part

of

its

overarching

finding

that

trial

counsel

conducted a reasonable mitigation investigation, the state habeas
court considered that "trial counsel attempted to locate a sexual

trauma expert" and determined that "trial counsel conducted a
thorough investigation into the possibility that Petitioner had an
118

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 119 of 193

incestuous relationship with his mother." (Doc. 52, Attach. 8 at
31, 49, 51, 53 (''As the above findings establish, trial counsel
conducted an extensive and thorough mitigation investigation" that

"was reasonable.").)21 Regarding a sexual trauma expert, the state
habeas court determined that trial counsel attempted to locate an

expert to assist in the case by emailing individuals and obtaining
recommendations from Ms. Leonard, but they were never able to

locate anyone willing to work on the case. (Id. at 48-49.) The
state habeas court noted, and Mr. Beauvais testified, that trial

counsel tried "very hard to find somebody," but "[a]nybody [he]
talked to indicated they just weren't taking new cases and weren't

willing to be involved." (Doc. 52, Attach. 8 at 50; Doc. 38,
Attach. 3 at 206.) As for incest, the state habeas court found

trial counsel lacked a strong enough factual basis to go to the

trial judge for funds for an expert. (Doc. 52, Attach. 8 at 50.)
Trial counsel had investigated the issue and uncovered several
troubling interactions, but they were "never able to develop any

21 While Petitioner raised two separate claims, the state habeas
court evaluated the findings Petitioner complains about in
relation to its finding that trial counsel conducted a reasonable
mitigation investigation. (See Doc. 109 at 133 (citing Doc. 52,
Attach. 8 at 50-51)); Wilson, 138 S. Ct. at 1191-92 ("Deciding
whether

a

state

court's

decision

'involved'

an

unreasonable

application of federal law or 'was based on' an unreasonable
determination of fact requires the federal habeas court to 'train
its attention on the particular reasons—both legal and factualwhy
state
courts
rejected
a
state
prisoner's
federal
claims[.]
'").
119

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 120 of 193

concrete evidence of an incestuous relationship" because ^^they

were unable to get Petitioner or his mother to admit to having an
incestuous relationship." (Id. at 50-51.)

Petitioner

contends

the

state

habeas

court's

findings

regarding incest reflect an unreasonable determination of fact and

an unreasonable application of law under Strickland. (Doc. 109 at
133.) Petitioner argues the state habeas court's finding that there
was no concrete evidence or acknowledgement of incest by Petitioner
or his mother is belied by the record and an unreasonable factual
determination.

(Doc.

109

at

87-88,

133-34;

Doc.

112

at

26.)

Petitioner further argues the state habeas court's finding that
trial counsel's investigation

was ^'thorough" was ^'legally and

factually" unreasonable because ^'they failed to take the necessary

steps-like retaining an expert-to deliver that information to the
jury." (Doc. 109 at 135.)

Petitioner points to several pieces of evidence to dispute
the state habeas court's finding that trial counsel were unable to
elicit an admission from Petitioner or his mother about incest.

First, Petitioner points to an email exchange between trial counsel
on December 22, 2003, where Mr. Beauvais wrote:
Guys -

I met with Dorian today and told him about the success
of our trip to Texas.

I

followed

up

on

our

suspicions

concerning

his

relationship with his mother. He confirmed that we were
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 121 of 193

right. It stretches back to at least when they were
living in Lancaster and 1 think around the time of the
Parkland admission.

He gave me a lead on a very strange incident which if we
can confirm will give us some very solid evidence of
this inappropriate relationship. We need to keep this
very close to our chests until we have gotten everything
we can from Carolyn.
(Doc.

44,

Attach.

5

at

57.)

Petitioner

also

relies

on

trial

counsel's notes from the same day - December 22, 2003 - in which
the following was noted:

kissing on you," ^'open mouth kiss," ''"oral

sex > both ways," ^'sex intercourse

2x-3x total," '^intimidated

by her," and "she can be totally different people changes very

quickly." (Doc. 44, Attach. 6 at 201.) Petitioner further points
to notes from a meeting with Dr. Grant where he wrote: "wife

thought he was f[

]ing mom - he and mom had sex accendental [sic]

- when 15/16 both drunk high - [indecipherable] drink drunk French kiss." (Doc. 44, Attach. 5 at 150.) In his reply. Petitioner

also points out that trial counsel wrote, "[w]hen in Texas, got $
to move, because she was sexually abusing Dorian," in notes from
their interview with Petitioner's father on October 4, 2005. (Doc.

112 at 30 (citing Doc. 44, Attach. 6 at 9).) Finally, Petitioner
relies on Petitioner's mother's comments about incest to mental

health providers and Petitioner's wife's report that Petitioner
and his mother shared a bed. (Doc. 109 at 88.)

On

the

other

hand,

during

the

state

habeas

evidentiary

hearing, Mr. Edwards testified trial counsel investigated the
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issue of an incestuous relationship between Petitioner and his
mother, but they were never able to get Petitioner or his mother
to admit it. (Doc. 38, Attach. 3 at 53.) Mr. Edwards explained

that they communicated with Petitioner and his mother to see if

either would speak about it and researched areas of medicine and

psychology
experienced

to
to

see

if

incest.

they
(Id.

could
at

link

53-54.)

symptoms
Since

they

Petitioner
could

not

establish physical incest, Mr. Edwards explained they wanted to

explore emotional incest as part of their mitigation presentation.
(Id. at 54.) Mr. Edwards noted they were still able to present

this theory along with circumstantial evidence of incest for the

jury's consideration. (Id. at 78.) This included testimony from
Mr. Goldsmith, Dr. Negrin, and Ms. Collins. (Id. at 79-81.)
Mr. Beauvais echoed Mr. Edwards's sentiments that they had
circumstantial evidence

but lacked

hard

evidence.

Mr.

Beauvais

emphasized: ^'We could not break [Petitioner] to give us that
information. We couldn't get any other witnesses other than to

tell us some very bizarre and inappropriate situations." (Doc. 41,
Attach. 1 at 263.) ''^WJe could not come up with, through family
members, through client, through our client's mother, anybody that

was willing to make an admission." (Doc. 38, Attach. 3 at 207.) He

explained that ^'although [they] had very significant suspicions
regarding . . . [incest,] . . . [they] were never able to get a

122

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strong enough factual basis to make those claims to go to the Court
to get money." (Id. at 206.)

Further, during the state habeas proceeding. Dr. Cunningham
confirmed his understanding was that "Petitioner never reported

having sex with his mother until [the] habeas proceeding[,]" and
Dr. Cunningham did not attempt to verify whether this occurred
with Petitioner's mother or his brother. (Doc. 38, Attach. 4 at

223-24,

227.)

Respondent

also

introduced

evidence

of

trial

counsel's assessment of Petitioner's case on February 3, 2005,

during a death penalty seminar. (Doc. 45, Attach. 4 at 125.) In
the letter, which is dated after the email Petitioner describes as

the "most striking confirmation" of his disclosure (Doc. 112 at
29), trial counsel indicated they believed Petitioner was the
victim of an incestuous relationship with his mother, although
they were unable to prove it. (Doc. 45, Attach. 4 at 127.)
Trial counsel's notes and correspondence clearly document

suspicion of an inappropriate

relationship that trial counsel

testified to, but they do not document an admission of incest by
Petitioner or his mother. Furthermore, the additional "concrete"

evidence

Petitioner

comment

about

refers to, including Petitioner's mother's

incest

to

mental

health

care

providers

and

Petitioner's wife's report that Petitioner and his mother shared
a

bed,

contained

no

evidence

of actual

sexual conduct

between

Petitioner and his mother. Considering this evidence and trial
123

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counsel's

definitive

testimony

admission

about

abuse,

the

that

they

reasonable

could

minds

not

obtain

could

an

certainly

disagree about the state habeas court's factfinding in question,
Brumfield v. Cain, 576 U.S. 305, 314, 135 S. Ct. 2269, 2277, 192
L. Ed. 2d 356 (2015), and the Court rejects Petitioner's argument
that the state habeas court's factual finding was unreasonable or

clearly and convincingly erroneous. See Raheem, 995 F.3d at 92829 (finding petitioner had not clearly and convincingly rebutted
state habeas court's factual finding that mental health expert did
not

tell

trial

counsel

that

the

petitioner

was

incompetent

considering trial counsel's unequivocal testimony to that effect).
Having addressed the factual determination above, the Court
concludes

the

state

habeas

court's

decision

regarding

trial

counsel's investigation of incest was not based on an unreasonable
determination of facts. Nor was it an unreasonable application of

clearly established federal law. '*^[T]he scope of the duty to

investigate mitigation evidence is substantially affected by the
[Petitioner's] actions, statements, and instructions." Cummings v.
Sec'y for Dep't of Corr., 588 F.3d 1331, 1357 (11th Cir. 2009).
Trial

counsel

could

not

have

been

expected

to

continue

investigating an incestuous relationship and present evidence of
it

when

Petitioner

did

not

confirm

such

abuse

with

them.

See Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999) (^'An

attorney does not render ineffective assistance by failing to
124

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 125 of 193

discover and develop evidence of childhood abuse that his client
does not mention to him."); Stewart v. Sec^y, Dep^t of Corr., 476

F.3d 1193, 1215 {11th Cir. 2007) (^'[Trial counsel's] failure to

present

evidence

of [the

petitioner's]

alleged

abuse

was

not

deficient because [petitioner] did not inform [trial counsel] of

this abuse."). As previously mentioned. Petitioner also argues it
was unreasonable to conclude trial counsel's investigation into

incest was thorough because they failed to retain a sexual trauma

expert. For the reasons explained below, this argument also fails.
Rather than explaining why the state habeas court's decision

regarding a sexual trauma expert was an unreasonable application
of Strickland or based on an unreasonable determination of facts.

Petitioner

primarily

counsel's

performance

repeats
was

his

arguments

deficient.

about

Nevertheless,

why

trial

although

unclear, the Court discerns that Petitioner contends the state
habeas

court's

conclusions

were

unreasonable

because

trial

counsel's search was cursory and they did not follow up with the

suggested experts. (Doc. 109 at 100-02, 102-03 n.33.) Petitioner
also seemingly argues that the state habeas court's finding that
trial counsel did not believe they had a sufficient basis to go to

the trial judge for funds to secure an expert was unreasonable
because trial counsel simply needed

an expert to confirm the

factual basis they already had and the trial judge was generous in
providing expert funds. (Id. at 102-03 n.33.)
125

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 126 of 193

On

February 18, 2005,

Mr.

Beauvais emailed

Kathy

Wayland

explaining trial counsel were searching for an expert to do ^'not

only the ^standard' evaluation[,] but [someone who] is also very
versed in sexual abuse and its effects." (Doc. 39, Attach. 9 at

48.) On March 4, 2005, Mr. Beauvais emailed Connie Best seeking

input on where he could find an appropriate expert after alerting
her about the sexual abuse concerns in the case. (Id. at 49.) Ms.

Best declined but suggested Dr. Ted Villeponteau. (Id.) On March
7, 2005, Mr. Beauvais noted that Ms. Leonard recommended Charles

Woods, a psychiatrist on staff at Morehouse Medical School, as a

source and potential expert. (Id. at 51.) She also advised John
Briere was an expert in sexual trauma and its effects and would be

an excellent point for references, although he would not do the
case. (Id.) Mr. Beauvais had apparently already contacted

Dr.

Briere on March 4, 2005, advising him they were seeking an expert
on

sexual

trauma

and

inquiring

whether

he

could

offer

any

assistance or referrals. (Doc. 44, Attach. 5 at 72-73.) Dr. Briere

responded that he was not available but suggested Dr. Catherine
Ehrlich. (Id. at 72.)

Mr.

Beauvais

testified

about

contacting

Ms.

Wayland,

Dr.

Best, Dr. Villeponteau, Dr. Brierre, and Dr. Ehrlich. (Doc. 38,
Attach. 3 at 203-06.) Mr. Beauvais confirmed that Dr. Best and Dr.

Briere declined, and he could not recall whether he contacted or

received a response from Ms. Wayland, Dr. Villeponteau, or Dr.
126

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 127 of 193

Ehrlich. (Id.) Regarding Dr. Ehrlich, Mr. Beauvais testified that

he suspected that he contacted her because they were "trying very
hard to find somebody[.]" (Id. at 206.) He also "recal[led] in
general being frustrated that [he] was never able to find anybody

that [he] could get to work on the case. Anybody [he] talked to

indicated they just weren't taking new cases and weren't willing
to be involved." (Id.) With respect to suspicions of incest, Mr.
Beauvais

further

explained

that

"although

[they]

had

very

significant suspicions regarding . . . [incest,] . . . [they] were
never able to get a strong enough factual basis to make those
claims to go to the Court to get money." (Id.)
While

Petitioner claims there is no evidence trial counsel

followed up with several experts, the record, at most, is ambiguous
as to whether trial counsel followed up on the numerous inquiries

they made. "An ambiguous or silent record is not sufficient to
disprove

the

strong

and

continuing

representation]. Therefore,

presumption

[of

effective

Vhere the record is incomplete or

unclear about [counsel]'s actions, we will presume that he did
what

he

should

have

done,

and

that

he

exercised

reasonable

professional judgment.' " Chandler v. United States, 218 F.3d 1305,
1314

n.l5

(11th

Cir.

2000)

(citations

omitted);

see

also

Gissendaner, 735 F.3d at 1331 ("[Petitioner], who has the burden

of proof and persuasion, cannot benefit from . . . trial counsel's

lack of recollection

years after the fact."). Facing multiple
127

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 128 of 193

rejections and, in particular, considering Petitioner's failure to

substantiate suspicions of incest, some fair-minded jurists could
conclude that trial counsel's efforts fell within the wide range

of reasonable professional assistance. Holsey, 694 F.3d at 1257.
Additionally, while trial counsel may have suspected an incestuous

relationship existed and the trial judge was generous in providing
expert funds (Doc. 38, Attach. 2 at 204), it remains true that
trial counsel reasonably tried but failed to find a sexual abuse
expert warranting a request for funds.

All in all, neither the state habeas court's findings about
the incest investigation or retaining a sexual trauma expert nor

its ultimate findings with respect to trial counsel's reasonable

mitigation

investigation

was

unreasonable.

Consequently,

Petitioner's arguments that trial counsel were ineffective by

failing to investigate and present evidence that Petitioner was
the victim of incest and failing to retain a sexual trauma expert
must fail.

ii.

Prejudice

The state habeas court did not address the prejudice component

when determining that trial counsel's mitigation investigation was
reasonable or when determining that trial counsel attempted to
investigate

allegations

of incest and

retain

a

sexual trauma

expert. E.g., Ferrell, 640 F.3d at 1226 {^^[The Georgia Supreme
Court's] analysis stopped after determining only that the [] lawyer
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 129 of 193

performed reasonably."). And while a court need not address both

components of an ineffective assistance claim if the petitioner
makes an insufficient showing on one. Reaves v. Sec^y, Fla. Dep^t
of Corr., 872 F.3d 1137, 1151 (11th Cir. 2017) (quoting Holladay

V. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)), the Court finds
that even if trial counsel's mitigation investigation were not

reasonable

and

they

had

performed

deficiently

by

failing

to

investigate and present evidence of incest and by failing to retain
a sexual trauma expert. Petitioner has not shown he was prejudiced

by these errors. Id. (^^[W]hen a state court's decision on an
ineffective assistance claim clearly rests on only one prong of
the Strickland test, we conduct a plenary [de novo] review of the

other one, if necessary." (first citing Johnson v. Sec'y, DOC, 643
F.3d 907, 930 (11th Cir. 2011); and then citing Rompilla v. Beard,
545 U.S. 374, 390, 125 S. Ct. 2456, 2467, 162 L. Ed. 2d 360
(2005))).

This evidence was at least partially cumulative.22 Pye, 50
F.4th

at

1054

(finding

^'[flurther

evidence

from

corrections

22 Petitioner argues the state habeas court's finding that the
evidence elicited in the state habeas proceedings was largely
cumulative is unreasonable because there is no comparison between
^'emotional incest" and ''rape at the hands of a child's mother[.]"
(Doc. 109 at 143, 144-45, 147.) However, the state habeas court

was not evaluating whether Petitioner was prejudiced by trial
counsel's failure to investigate and present evidence of incest or
their failure to retain a sexual abuse expert or whether evidence
of incest was largely cumulative on the pages Petitioner
references. (Id. at 146 (citing Doc. 52, Attach. 8 at 59, 87).)
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 130 of 193

officers as to [petitioner's] nonviolent nature [presented at the

state

habeas

proceeding]

would

have

been

at

least

partially

cumulative[]" of his family members' testimony that he was not
violent and

kind). As detailed above, Dr. Cunningham presented

evidence at the state habeas proceedings about the timeline and
extent of Petitioner's mother's sexual abuse. (Doc. 38, Attach. 4

at 79, 84-88.) Ginger also testified that she observed Petitioner's
mother ask Petitioner to massage her and that Petitioner reported
to her that his mother tried to kiss him. (Doc. 38, Attach. 2 at
98-99.)

Along similar lines, trial counsel presented circumstantial
evidence

of

emotional

incest.

incest

Mr.

between

Goldsmith

testified

Petitioner

and

his

at

trial

mother

about

and

the

partnering dynamic he observed between them. (Doc. 33, Attach. 12
at 13-15.) Ms. Collins, who had family counseling sessions with
Petitioner

and

his

mother,

recounted

when

Petitioner

put

his

mother's head in his hands and another time when Petitioner kissed

his mother on the mouth. (Doc. 34, Attach. 3 at 24-26.)

During the state
presented

evidence

habeas

about

the

proceedings.
impact

of

Dr. Cunningham also
sexual

abuse

on

an

individual and why Petitioner's reports were credible. (Doc. 38,
Attach. 4 at 86-88, 139-41.) Dr. Hodges further testified that

documentation from the Family Place that Petitioner had a limited
understanding of boundaries, evidenced by grabbing the buttocks of
130

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 131 of 193

staff, kissing his peers, and goosing his peers, indicated ^'some
inappropriate sexual behaviors ha[d] gone on" and that he had been

taught offensive behavior was playful. (Doc. 38, Attach. 2 at 17,
28-30, 32.) She also testified that victims of childhood sexual
abuse often suffer from insomnia, like Petitioner, and low selfesteem. (Id. at 42-43.)

At trial, the jury also heard about why Petitioner's reports
were

to

be

believed

and

how

sexual

abuse

can

affect a

person

emotionally. Ms. Richardson read from the same letter from The

Family Place that Dr. Hodges referenced and indicated that staff
believed ^'he'd been sexually abused because of some of the sexual
touching that he was doing." (Doc. 33, Attach. 8 at 24-26.) Mr.
Nabors

also

touched

on

the

fact

that

victims

of

sexual

abuse

commonly wait to report sexual abuse due to guilt and shame. (Doc.
33, Attach. 11 at 68.)

Accordingly,
mother

had

an

there

was

evidence

inappropriate

that

relationship

Petitioner
and

some

and

his

of

the

consequences of childhood sexual trauma. And, as explained in more
detail below, trial counsel introduced evidence that Petitioner

was sexually abused as a child by his stepfather, which Dr. Hodges,
Petitioner's own expert, actually classified as incest. (Doc. 38,
Attach. 2 at 39.) Although Petitioner's evidence of his mother's

sexual abuse is unquestionably disturbing, this is not a case in
which the jury was not aware that Petitioner had an inappropriate
131

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 132 of 193

relationship with his mother or was otherwise the victim of sexual
abuse. Thus, to some extent, evidence that Petitioner's mother

sexually abused him constitutes additional evidence supporting the
"""theme" that Petitioner was a victim of childhood sexual abuse and

provided

""more

or

better

examples" of

the

sexual

abuse

that

Petitioner faced. Holsey, 694 F.3d at 1260-61.

Even

if

this

type

of

evidence

were

entirely ""new," the

""aggravating factors were overwhelming, and adding the allegation
of sexual abuse would not have sufficiently changed the balance of

those factors or given rise to a reasonable probability that the

outcome

would

have

changed."

See

Dallas,

964

F.3d

at

1311.

Accordingly, Petitioner has not shown prejudice resulted from the
omission of evidence that his mother sexually abused him and other

expert evidence about the consequences of childhood sexual trauma.
Because the state habeas court reasonably determined that trial
counsel performed adequately and now because he failed to show

that he was prejudiced. Petitioner's claims that trial counsel
were ineffective by failing to investigate and present evidence of
incest and retain a sexual trauma expert fail.
b.

Petitioner

Obregon,

Sexual Abuse by Stepfather

argues

trial

an employee at The

counsel

planned

Family Place

to

use

Sharon

who interacted

with

Petitioner and his family, to present corroborating evidence that
Petitioner's stepfather sexually abused him, but they unreasonably
132

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 133 of 193

failed to replace her and present this testimony after she had a

medical emergency that left her incapacitated. {Doc. 109 at 93-

95, 139.) Petitioner contends a mitigation investigator could have
assisted in this effort. (Id. at 95 n.31.) According to Petitioner,
Mr. Ryter, a play therapist at The Family Place while Petitioner's

family

resided

there,

could

have

testified

that

Petitioner's

mother reported to him that Petitioner was a victim of sexual abuse
and that Petitioner's behavior was consistent with a child who had

experienced sexual abuse. (Doc. 109 at 96; Doc. 38, Attach. 8 at
100, 103-04.) Additionally, Petitioner contends that Dr. Hodges,

a social worker at The Family Place who was not on staff while

Petitioner's family were residents, 'could have substantiated the
abuse Petitioner suffered at the hands of his stepfather that was
documented in a letter from The Family Place and commented on the
effects of sexual abuse.^3 (Doc. 109 at 96-97; Doc. 38, Attach. 2
at 16-18.)

23 Petitioner also argues trial counsel performed deficiently by
undermining reports that Petitioner was sexually abused by his
stepfather. (Doc. 109 at 97-100.) First, Petitioner faults trial
counsel for presenting Ms. McLeod's testimony about Gilbert's
improvements after living with his father - the man who allegedly
abused Petitioner. (Id. at 98.) Second, Petitioner critiques trial
counsel questioning the importance of whether the abuse actually
occurred in their closing argument. (Id. at 99.) Comparing
Petitioner's brief in the state

habeas court (Doc. 51, Attach.

20), Petitioner's Application for Certificate of Probable Cause to
Appeal (Doc. 53, Attach. 2), Petitioner's petition in this court
(Doc. 1), and this Court's order on procedural default, cause and
prejudice, and the fundamental miscarriage of justice (Doc. 104 at
133

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 134 of 193

Although

Petitioner

argues

trial

counsel

performed

deficiently because they failed to ^^reliably present evidence of
sexual abuse," (Doc. 112 at 34 (emphasis omitted)), his arguments

about

why

concern

counsel

the

the

were

state

state

habeas

habeas

ineffective

court's

court's

for

decision

assessment

failing

to

was
of

unreasonable

whether

utilize

trial

mitigation

specialists (Doc. 109 at 139-40 (citing Doc. 52, Attach. 8 at 65)).

Regardless of which Petitioner intended to dispute, neither of the
state habeas court's decisions was unreasonable.

As for finding a replacement for Ms. Obregon, the state habeas
court considered and rejected Petitioner's claim that a mitigation

specialist could have located Dr. Hodges. (Doc. 51, Attach. 20 at
25; Doc. 52, Attach. 8 at 64-65.) The state habeas court noted

that Dr. Hodges lacked firsthand knowledge of Petitioner and,

having only learned of Ms. Obregon's incapacity during voir dire,
trial counsel did not have the time to locate another witness to

replace her. (Doc. 52, Attach. 8 at 65.) The state habeas court
also found Petitioner had failed to establish prejudice because

Dr. Hodges's testimony would have been largely cumulative. (Id.)

According to Petitioner, the state habeas court determined
^'that it was not deficient not to find a replacement for" Ms.

Obregon because Dr. Hodges lacked firsthand knowledge and trial

31-35), the Court concludes Petitioner failed to raise this claim
and was not permitted to brief this issue.
134

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 135 of 193

counsel lacked time to replace Ms. Obregon. (Doc. 109 at 139-40
(citing Doc. 52, Attach. 8 at 65).) Petitioner maintains that these
determinations

are

unreasonable

because

the

state

habeas

court

overlooked the fact that Mr. Ryter, who personally interacted with
Petitioner, was available as a replacement for Ms. Obregon and the

weeks that trial counsel delayed seeking to find a replacement

after hearing no response from Ms. Obregon. (Id. at 140-41.)
The record supports the state habeas court's finding that
trial counsel did not have time to find a replacement once they

learned of Ms. Obregon's incapacity, and the Court finds that the
state habeas court's decision that trial counsel did not perform

deficiently was not unreasonable. On August 25, 2005, trial counsel
filed a petition to secure Ms. Obregon's attendance as an out of
state witness. (Doc. 50, Attach. 1 at 174-77.) On September 19,

2005, trial counsel sent Ms. Obregon a letter informing her that

her testimony was ^'crucial to [their] efforts to save [Petitioner]
from a death sentence." (Doc. 39, Attach. 9 at 35-36.) On October

14, 2005, trial counsel faxed a letter to the general counsel for

The Family Place stating that they had ''diligently and repeatedly"
attempted to speak with Ms. Obregon, including leaving two messages

and going by her apartment in Dallas, Texas, "earlier this week."
(Id. at 41.) On October 21, 2005, the same day initial juror

qualification began, trial counsel learned that Ms. Obregon had
suffered a serious medical issue that left her unable to testify.
135

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 136 of 193

(Doc. 44, Attach. 2 at 82; Doc. 24, Attach. 23 at 1-3.) Mr. Edwards

recalled ^'a lot of panic" when Ms. Obregon became unavailable but
no effort to replace her. (Doc. 38, Attach. 2 at 224.)

Less than two months had passed between the time trial counsel
sought to secure Ms. Obregon's attendance at trial and the date

they learned she was incapacitated. Throughout this period, trial
counsel regularly attempted to communicate with Ms. Obregon, by

sending her a letter, making phone calls, and even going by her

apartment in an entirely different state. (Doc. 39, Attach. 9 at
35-36, 41.) During his deposition, Mr. Beauvais testified that
trial counsel had encountered witnesses that did not want to be

involved, ^^especially in regard to some of the people out in
Texas." (Doc. 41, Attach. 1 at 263-64.) Given trial counsel's

experience with witnesses in the case, a reasonable attorney would
not

necessarily

assume

the

worst

and

begin

to

look

for

a

replacement, and it was not objectively unreasonable to persist in
efforts to secure Ms. Obregon's attendance. Because courts are not

required

to

assess

^Vhether

the

state

court

considered

and

discussed every angle of the evidence," Pye, 50 F.4th at 1051 n.20,
the state habeas court's decision was also not unreasonable merely

because it failed to address Mr. Ryter as a replacement witness.

24 Beyond that, it is
considered Mr. Ryter
Petitioner suggested
was Dr. Hodges, and

unclear why the state habeas court would have
as a replacement witness when the only person
as a replacement for Ms. Obregon in his brief
the only reference to Mr. Ryter was to the
136

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 137 of 193

Even if trial counsel had performed deficiently by failing to
secure a mitigation expert who could have located Dr. Hodges or

Mr. Ryter, the state habeas court reasonably determined Petitioner
failed to show he was prejudiced because, for reasons similar to

those

explained

in

Analysis

Section

I.D.2.a.ii,

supra,

the

evidence was largely cumulative. Petitioner asserts the state
habeas court ^""unreasonably determined in multiple

places that

evidence introduced in the state habeas proceedings was ^largely

cumulative of that presented at trial[.]
' " (Doc. 109 at 146.)
Because

trial

Petitioner

was

counsel
the

undisputedly

victim

of

his

presented

evidence

stepfather's

sexual

that
abuse.

Petitioner narrowly argues the state habeas court's determination
was

unreasonable

because

the

jury did

not

hear

substantiated

evidence of his stepfather's sexual abuse and the impact of that
abuse. (Id. at 142.)

Because Dr. Hodges had not interacted with Petitioner during
his stay at The Family Place, she could only testify about reports
that

Petitioner's

Attach.

2

at

30,

stepfather, sexually
39-40.)

As

abused

previously

him.

(Doc.

mentioned,

she

38,
also

testified that documentation from The Family Place that Petitioner

had a limited understanding of boundaries, evidenced by grabbing

fact

that

school

records

introduced

at

trial

did

not

contain

information regarding Mr. Varian's conversations with him. (Doc.
51, Attach. 20 at 26, 27-28.)
137

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 138 of 193

the buttocks of staff, kissing his peers, and goosing his peers,

indicated ^'some inappropriate sexual behaviors ha[d] gone on" and
that he had been taught offensive behavior was playful. (Id. at
17, 28-30, 32.) Dr. Hodges further presented evidence about how
victims

of

Petitioner,

submitted

childhood

and

an

low

abuse

often

self-esteem.

affidavit

suffer

(Id.

confirming

reported to him that Petitioner

at

from

insomnia,

41-43.)

Mr.

that -Petitioner's

like

Ryter

mother

was sexually abused and

his

behavior was consistent with a child who had experienced sexual
abuse. (Doc. 38, Attach. 8 at 103-04.)

At trial, Ms. Connelly and Dr. Nagelberg both testified that

Petitioner's stepfather sexually abused him by performing anal

penetration on

him, and Mr. Nabors testified that Petitioner

reported that he had been sexually abused by his stepfather. (Doc.
33, Attach. 10 at 32; Doc. 33, Attach. 11 at 52-53; Doc. 34,
Attach. 3 at 5-6.) Ms. Richardson read from the same letter from

The Family Place that Dr. Hodges referenced and indicated that
staff believed ^^he'd been sexually abused because of some of the

sexual touching that he was doing." (Doc. 33, Attach. 8 at 24-26.)
Adding additional credibility to Petitioner's allegations, Mr.
Nabors, a social worker like Dr. Hodges, testified there were times

when Petitioner expressed guilt and shame for being abused and

explained it was ^^very common" for young victims of abuse to wait
to report it until later in life because ^Mt]hey're usually so
138

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 139 of 193

riddled with guilt, feeling ashamed, they don't know who to turn
to[.]" {Doc. 38, Attach. 2 at 10; Doc. 33, Attach. 11 at 41, 68.)

Thus, the jury not only heard evidence that Petitioner was sexually
abused from multiple sources, including Petitioner's mental health

treatment providers, but they also heard about why Petitioner's
reports were to be believed and some evidence of the impact of
sexual abuse later in life.

Based on the foregoing, the Court concludes the state habeas

court reasonably determined that trial counsel were not deficient
by failing to secure a mitigation expert who could have located
Dr. Hodges as a replacement for Ms. Obregon. Further, even if trial
counsel

had

performed

deficiently,

the

state

habeas

court

reasonably concluded that Petitioner failed to show prejudice.
Accordingly, the state habeas court's decision was not contrary

to, or an unreasonable application of, clearly established federal
law or based on an unreasonable determination of the facts.

Apart
mitigation

from

the

state

specialists,

it

habeas

court's

determined

determination

trial

counsel

about

were

not

deficient in their investigation and presentation of Petitioner's
history of sexual abuse because they presented extensive evidence
about

the

suspected

abuse

and

Petitioner

evidence
had

been

that

The

sexually

Family
abused

Place's
because

staff
of

his

behavior. (Doc. 52, Attach. 8 at 69, 70-71.) The state habeas court

also rejected Petitioner's argument that he was prejudiced because
139

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 140 of 193

Dr. Hodges was not a suitable replacement with firsthand knowledge
like Ms. Obregon and her testimony was largely cumulative. (Id. at
72-73, 77-78.) The state habeas court further found it was not

unreasonable to present this information through lay witnesses
instead of an expert. (Id. at 79.)

As

the

Court

previously

noted.

Petitioner's

arguments

regarding why the state habeas court's decision was unreasonable
go to its decision about mitigation specialists. Even so, the Court
notes

that

trial

counsel

were

able

to

present

much

of

the

corroborating evidence that Petitioner contends was missing, as
detailed above. After reviewing the evidence presented at trial
and the state habeas hearing, this Court agrees with the state
habeas court's determination that trial counsel's investigation

and presentation of Petitioner's history of sexual abuse, even

without

Ms.

Obregon's

or

another

witness's

corroborating

testimony, was reasonable. See Pittman v. Sec'y, Fla. Dep't of
Corr., 871 F.3d 1231, 1252 .(11th Cir. 2017) (rejecting petitioner's

argument that trial counsel performed deficiently by ''fail[ing] to
uncover and present [] additional corroborating evidence" because
^^counsel is not required to track down every lead. And sexual abuse
is no different.").

Again, even if trial counsel had performed deficiently by
failing to present corroborating testimony, the state habeas court

reasonably determined Petitioner failed to show he was prejudiced
140

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 141 of 193

because, for the reasons explained above, the evidence was largely
cumulative. It also was not clearly and convincingly erroneous for

the state court to find that Dr. Hodges had no personal knowledge
of Petitioner, nor was it unreasonable for the state habeas court

to give some consideration to the effect Dr. Hodges's testimony
would have when evaluating whether Petitioner was prejudiced by

trial counsel's failure to present her testimony. Finally, because
Petitioner provides nothing other than a conclusory argument that

Dr. Hodges's or Mr. Ryter's testimony would be more mitigating
than the testimony from the professionals who testified at trial,
the Court rejects this argument.
In conclusion, the state habeas court reasonably decided that
trial

counsel

were

not

deficient

in

their

investigation

and

presentation of Petitioner's history of sexual abuse and that he
was not prejudiced. Petitioner failed to show that the state habeas
court's decision was contrary to, or an unreasonable application
of, clearly established federal law or based on an unreasonable
determination of facts.

c.

Physical and Emotional Abuse and Neglect by
Petitioner's Mother

i.

Deficiency

Petitioner further argues trial counsel unreasonably failed
to investigate and present a complete picture of his upbringing,
which

included

physical

and

emotional

141

abuse

and

neglect

by

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 142 of 193

Petitioner's mother and evidence of her mental illness. {Doc. 109

at

108,

115.)

Petitioner

contends

trial

counsel

failed

to

meaningfully interview Gilbert, Petitioner's father, and Ginger
(id. at 116, 117 n.40); interview other witnesses like Ms. Chappell

and Mr. Ryter (id. at 120); follow up on records of Petitioner's
mother's mental health (id. at 114-15); present his friends as
witnesses (id. at 120); and elicit important information from
Gilbert on the stand (id. at 117, 119).

in his brief. Petitioner

recounts in detail the evidence he believes the jury did not hear

about Petitioner's mother's physical and emotional abuse, physical

neglect, drug use, bizarre and sexually inappropriate behavior,
and her own history of mental illness due to trial counsel's
deficient performance. (Id. at 108-15.)

The state habeas court's bottom line ruling was that trial

counsel reasonably investigated and presented evidence of the

dysfunctional,
Petitioner

abusive,

and

his

and

brothers

neglectful
were

environment

raised

and

in

which

symptoms

of

Petitioner's mother's mental illness. (Doc. 52, Attach. 8 at 80.)

Regarding trial counsel's investigation, the state habeas court

25

To

the

extent

Petitioner

contends

trial

counsel

performed

deficiently by failing to adequately prepare Gilbert or any other
defense witness to testify (Doc. 109 at 117-18), the Court found
Petitioner's claim that ^'[c]ounsel failed to adequately prepare

defense witnesses for their testimony . . ." should be dismissed
and informed him that he would not be permitted to brief this claim
because it was insufficiently pled. (Doc. 104 at 28-29, 29 n.5.)
142

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 143 of 193

credited

the

fact

that

trial

counsel

obtained

CPS

records

from

Texas and Georgia, interviewed individuals regarding the neglect
of Petitioner's mother, and conducted a thorough investigation
into Petitioner's mother. (Id.) When doing so, the state habeas
court

referenced

its

earlier

mitigation investigation

was

findings

that

reasonable. (Id.

trial

(^'As

counsel's

this

Court

previously detailed . . . .").)
As

part

of

its

overarching

decision

that

trial

counsel

conducted a reasonable mitigation investigation into Petitioner's
background,

the

considerations,

state
that

habeas

trial

court

counsel

noted,

attempted

among
to

other

locate

and

interview numerous witnesses who knew Petitioner and thoroughly

investigated Petitioner's mother. (Id. at 31, 34-36, 38-39.) With
respect to interviews, the state habeas court noted trial counsel
met with and interviewed Petitioner's wife, brothers, father, and

mother, who was trial counsel's ^'primary contact" and ^'provided
extensive background information regarding Petitioner." (Id. at
35-36.) Regarding Petitioner's brothers, the state habeas court

recognized that the information trial counsel sought from them was
""'on a much more limited level" because they were young. (Id. at
35.)

The

state

habeas

court

further

noted

that

trial

counsel

^'conducted interviews with Amy and Ginger Norman and obtained some
information relevant to the case," but did not find them to possess
valuable information or be forthcoming. (Id. at 36.)
143

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 144 of 193

As for investigating Petitioner's mother, the state habeas
court

recognized

that

trial

counsel

researched

but

found

no

hospital or arrest records. (Id. at 39, 80.) The state habeas court

also credited trial counsel for speaking with Dr. Andrew Brylowski
and Lynorra Ratliff, some of her mental health providers; obtaining
articles

Dr.

treatment;

and

Brylowski
obtaining

authored

about

Petitioner's

Petitioner's
mother's

mother's

mental

health

records following Petitioner's arrest. (Id. at 39, 39 n.l3, 81.)
The

state

habeas

court

further

ruled

that

trial

counsel's

selection of sentencing phase witnesses was reasonable. (Id. at
53.) The state habeas court determined that trial counsel decided

against presenting Amy and Ginger Norman given their concerns about
how they would react and come across to the jury. (Id. at 54.)

On review of trial counsel's presentation of Petitioner's
background, the state habeas court recognized that they presented
evidence that Petitioner's mother left him in a hot car as a child.

(Id. at 81-82.) Through Ms. Connelly's and Ms. Griffin's testimony
about CPS investigations, trial counsel presented evidence of the

physical neglect and deplorable housing conditions that Petitioner
and his brothers endured. (Id. at 82-83.) The state habeas court

underscored trial counsel's presentation of Petitioner's mother's
instability and abusive behavior through Gilbert and testimony
about how she treated him. (Id. at 83-84, 85.) The state habeas

court also noted that trial counsel presented information about
144

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 145 of 193

Petitioner's

depressed

mother's

and

mental

anxious,

made

health,

poor

including

choices,

had

that

she

limited

was

coping

skills, and was barely able to take care of herself. (Id. at 85.)
Further,

the

jury

heard

that

Petitioner

was

his

brothers'

caretaker. (Id. at 84-85.)

Investigation

^'Counsel representing a capital defendant must conduct an

adequate background investigation, but it need not be exhaustive."
Raulerson,

928

F.3d

at

997

(citation

omitted). ''To

determine

whether 'trial counsel should have done something more' in their

investigation,

'we

first

look

at

what

the

lawyer[s]

did

in

fact.' " Id. (quotation omitted). However, "[t]he mere fact that

other witnesses might have been available . . . is not a sufficient
ground to prove ineffectiveness of counsel." Waters v. Thomas, 46
F.3d

1506,

1514

(11th

Cir.

1995)

(quotation

omitted).

And

"[c]ounsel is not required to pursue every path until it bears

fruit or until all hope withers." DeYounq v. Schofield, 609 F.3d
1260, 1284 (11th Cir. 2010) (quotation omitted).

Accordingly, the Court first looks to trial counsel's efforts
apart from conducting interviews and investigating Petitioner's
mother,

which

included

utilizing

Ms.

Richardson,

collecting

numerous school and CPS records, and collectively traveling three
times to Texas and once to the Atlanta, Georgia, area. (Doc. 52,
Attach. 8

at 31-33, 36-38.)

From this
145

research, trial counsel

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 146 of 193

created detailed timelines of Petitioner's life showing that he

^^never had a chance from the beginning." (E.g., Doc. 44, Attach.
3 at 87, 87-103.)

As for interviews. Petitioner argues the state habeas court's
determination

that

trial

counsel

adequately

investigated

Petitioner's background was unreasonable because the state habeas
court concluded trial counsel relied on Petitioner's mother, one

of Petitioner's abusers, as the chief source of information. {Doc.

109 at 13,5-36.) The Court disagrees. Petitioner's mother provided
trial

counsel

with

a

''detailed

narrative"

of

Petitioner's

background and friends (Doc. 44, Attach. 3 at 215, 216-35), and
trial counsel's notes of their interviews with her are scattered

throughout the record (e.g., Doc. 44, Attach. 4 at 168, 170). And
while Mr. Edwards first said their contact with Petitioner's family

was principally with his mother (Doc. 41, Attach. 1 at 51-52), he
later clarified that they did not get information "principally
from her," and they uncovered much of the information they found
on their own (Doc. 38, Attach. 3 at 9-10). Regardless, Mr. Edwards

explained trial counsel were "able to follow

up on a lot of

information that [they] received from her[,]" although "there were

other

things

that

[they]

couldn't

necessarily

learn

from

her . . . [.]" (Doc. 41, Attach. 1 at 51-52.) Considering the
information that Petitioner's mother provided to trial counsel

that they used as a starting point for further investigation, it
146

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 147 of 193

was

not

unreasonable

for

the

state

habeas

court

to

find

trial

counsel's investigation was not deficient based in part on the
information Petitioner's mother provided to them, regardless of
whether she was one of Petitioner's abusers or not.

Petitioner

further

argues

that

the

state

habeas

court

unreasonably determined the investigation was sufficient because
trial counsel met with various individuals. (Doc. 109 at 136.)

Petitioner asserts that merely meeting witnesses without asking
''relevant

and

investigation

probing
was

questions"

reasonable.

is

(Id.)

not
This

enough

to

argument

show

is

an

flatly

contradicted by the record, which reveals that trial counsel either

thoroughly

interviewed

witnesses

or

limited

interviews

for

strategic reasons.

First,

with

respect to Petitioner's brother Gilbert, Mr.

Edwards testified, and the state habeas court found, that they
interviewed Petitioner's brothers, "but on a much more limited

level because they were both young, one[] quite young[.]" (Doc.
41, Attach. 1 at 52; Doc. 52, Attach. 8 at 35.) Mr. Daly testified
that he met with Gilbert at least once with his mother and once in

Atlanta

without

his

mother,

although

he

only

recalled

some

information he gathered from the interviews. (Doc. 38, Attach. 3
at

172-73.)

Mr.

Edwards

testified

that

he

spoke

with

Gilbert

several times and that Gilbert even stayed at his home during
Petitioner's trial. (Id. at 16-17.) Gilbert conveyed to Mr. Edwards
147

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 148 of 193

that ^'his mother was very disturbed[,]" although he did not know

why as he was 16 or 17 at the time, and that she ''behaved in
irrational, inappropriate manners over the years." (Id. at 17.)
Mr. Edwards also recalled Gilbert describing the hockey stick
incident and Petitioner serving as a father figure and caretaker.
(Id. at 17-18.)

Although not entirely clear. Petitioner appears to question
the reasonableness of trial counsel's strategic decision to limit
their investigation, arguing that "speculation that eighteen-year-

old Gilbert (his age at the time of trial) would not have testified
identically to twenty-five-year-old Gilbert (his age at the time
of state habeas) does not excuse trial counsel's inactions." (Doc.

112 at 43-44.) On the contrary, the fact that Gilbert was able to

give detailed testimony at 25 does not show

trial counsel's

26 Although Gilbert did not recall Petitioner receiving medical
treatment from the incident that occurred when he was approximately

six years old (Doc. 38, Attach. 1 at 133-34), trial counsel's notes
from meetings with Petitioner reveal that Petitioner informed them
about the alleged incident and that he went to Parkland Hospital.
(Doc. 44, Attach. 5 at 98, 104.) During his deposition, Mr. Edwards
testified this led to them requesting and obtaining the records

from Parkland Hospital, though he did not recall whether records
evidenced the incident. (Doc. 41, Attach. 1 at 73-74.) During the

state habeas proceeding. Respondent introduced trial counsel's
letter to Parkland Hospital requesting "all records of treatment
rendered while he was under your care[.]" (Doc. 41, Attach. 5 at
82.) These records contain no reference to a hospital visit with
injuries consistent with a physical attack (id. at 82-94), and
Petitioner has not otherwise cited to any. Thus, trial counsel did
investigate the incident, but it appears their research failed to
confirm the event as Petitioner described it.
148

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 149 of 193

assessment of his ability at the time of the investigation and the

extent to which they could utilize him was incorrect. Gilbert was
only nine years old when the family left Texas (Doc. 38, Attach.

1 at 201-02), and only ^^very vaguely" remembered living there (Doc.
34, Attach. 4 at 18). He was just 15 years old when Petitioner
committed the crimes. (Doc. 38, Attach. 1 at 207.) Furthermore,

the Court notes that even during the state habeas proceeding, 25-

year-old Gilbert testified that he was nervous and, at times, got
his

"timeline

backwards."

(Id.

at

148.)

Dr.

Cunningham,

Petitioner's own expert, also testified that he did not "probe
[Gilbert] very much" during his interview because "he was tense,

pressured, anxious, [and] fragile[.]" (Doc. 38, Attach. 4 at 228.)
Accordingly, the Court concludes that the record supports the state
habeas court's finding that trial counsel limited the scope of the

information they sought from Gilbert due to his age. Fotopoulos,
516 F.3d at 1233 ("The question of whether an attorney's actions

were actually the product of a tactical or strategic decision is
an issue of fact, and a state court's decision concerning that

issue is presumptively correct."); Williams, 185 F.3d at 1237 ("[A]
decision to limit investigation is accorded a strong presumption
of reasonableness."); White v. Singletary, 972 F.2d 1218, 1220
(11th

Cir.

1992)

("Courts

also

should

at

the

start

presume

effectiveness and should always avoid second guessing with the
benefit of hindsight.").
149

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 150 of 193

Petitioner

vastly

underrepresents

the

extent

of

trial

counsel's interviews with his father. Although Petitioner's father

claimed that trial counsel ''only asked [him] very little" about
Petitioner's mother and Petitioner (Doc. 38, Attach. 8 at 73-74),

trial counsel's notes from a two-hour meeting with Petitioner's

father reveal the range of topics trial counsel explored (Doc. 44,
Attach. 3 at 192). In fact, trial counsel's notes reference many

of the topics that Petitioner's father covered in his affidavit,
including that their two years of marriage were horrendous or
torture.

Petitioner's

mother

bought

him

a

dog

bowl,

and

Petitioner's mother never allowed visitation. (Compare Doc. 38,

Attach. 8 at 68, 71, 73, with Doc. 44, Attach. 3 at 192-94.) On

the

other

information

hand.
that

Petitioner's
Petitioner

father

also

"attracted

the

revealed
worst

harmful
of

the

neighborhood" when he lived with him and that if Petitioner had
stayed with him, "it would have happened to [the] people across
the street." (Doc. 44, Attach. 3 at 193.)

Finally, trial counsel's interview with Ginger was not as

limited as Petitioner depicts. Ginger testified that she met with
Mr. Daly once for 20 minutes and no one contacted her afterwards.
(Doc. 38, Attach. 2 at 121-22.) Ginger recalled that Mr. Daly only
asked her about the truthfulness of a witness's testimony and did

not ask her any questions about her friendship with Petitioner,
his life, or "any questions about [their] other friends, Amy or
150

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 151 of 193

Trent or anyone else[.]" (Id.) While Mr. Daly corroborated the
brevity of the interview, he testified that he talked to her about

Petitioner's wife. Ginger's sister Amy, Ms. Dahlquist, Mr. Gray,
and a $10,000.00 reward related to the case. (Doc. 38, Attach. 3

at 156-58.) Mr. Daly did not recall conveying his impressions about

Ginger to Mr. Edwards but testified that he might have. (Id. at
171.) Mr. Edwards remembered Mr. Daly's assessment of his interview
with Ginger, explaining ^""we didn't find the information that [Mr.
Daly] was getting from either [Ginger or Amy] to be valuable and

they were not very . . . didn't seem to be very forthcoming." (Id.
at 48.)

As the Court has now detailed, this is not a case in which
trial counsel failed to ""'ask relevant and probing questions" or

lacked a reason for limiting their inquiry. Therefore, it was not
unreasonable for the state habeas court to consider the fact that

trial counsel interviewed many witnesses when determining trial
counsel's investigation was not deficient.

Petitioner also faults trial counsel for failing to interview

Ms.

Chappell,

who

possessed

information

about

the

neglect

Petitioner endured, and Mr. Ryter, who could have substantiated

allegations of sexual abuse. (Doc. 109 at 120.) This is essentially
an argument that trial counsel should have done more. The Court

has already detailed trial counsel's efforts in investigating
Petitioner's background but further highlights the considerable
151

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 152 of 193

contacts trial counsel made in Texas and Georgia that Petitioner

fails to acknowledge. In Texas, trial counsel interviewed 8-16
witnesses and talked to more than 30 people overall. {Doc. 41,
Attach. 1 at 64-66, 260; Doc. 41, Attach. 2 at 17.) In addition to
Petitioner's mother, father, brothers, wife, and Ginger, trial

counsel also interviewed Amy and received information about Tony

Kennedy, who were in Petitioner's friend group. (Doc. 44, Attach.
3 at 173-78, 189-90, 238-39.)

The

Supreme

Court

has

explained

trial

counsel

need

not

interview every conceivable witness because there comes a point at
which evidence "can reasonably be expected to be only cumulative,
and the search for it distractive from more important duties."

Bobby V. Van Hook, 558 U.S. 4, 11, 130 S. Ct. 13, 19, 175 L. Ed.
2d 255 (2009). Trial counsel had already uncovered considerable
information

about

the

neglect

Petitioner

endured

through

CPS

records and evidence that corroborated allegations of Petitioner's

stepfather's sexual abuse through the letter from The Family Place
and the mental health professionals who treated Petitioner. (E.g.,
Doc. 33, Attach. 8 at 19-21, 26; Doc. 33, Attach. 10 at 32-33, 3536; Doc. 33, Attach. 11 at 3-4, 11-12, 14-15, 20, 31, 68.) This is
a

case

where

trial

counsel's "

mitigating evidence from the

already in hand' fell

Mecision

not

to

defendant's background

seek

more'

*than

was

Veil within the range of professionally

reasonable judgments.' " Bobby, 558 U.S. at 11-12, 130 S. Ct. at
152

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 153 of 193

19 (quotation omitted). "[T]hat more investigation could have been
performed

[by

interviewing

these

individuals]

does

not

mean

[Petitioner's] counsel's investigation was inadequate." Raulerson,

928

F.3d

at

997

(finding

that

state

habeas

court

reasonably

concluded trial counsel conducted an adequate investigation even

though the petitioner presented affidavits of individuals that
could have been interviewed).
It

is

unclear

whether

Petitioner

contends

trial

counsel's

investigation of Petitioner's mother's mental health was deficient
because trial counsel failed to follow up with Dr. Brylowski to

secure articles regarding Petitioner's mother's treatment or he is
merely pointing out additional evidence the jury might have heard.
(Doc. 109 at 114-15.) If he did, this argument fails.

As previously mentioned, the state habeas court found trial
counsel conducted a thorough investigation of Petitioner's mother.
(Doc. 52, Attach. 8 at 38-39, 80-81.) The state habeas court's
determination was not unreasonable. First, regardless of whether

trial counsel retrieved the articles, it is undisputed that trial

counsel

spoke

with

Dr.

Brylowski

about

Petitioner's

mother's

mental health and the articles. (Doc. 38, Attach. 3 at 138-39;

Doc. 39, Attach. 10 at 14.) While Petitioner suggests there is no
indication Mr. Daly followed up on his August 17, 2005, request
for the articles (Doc. 109 at 115), records from October 4, 2005,

reveal trial counsel again noted to call Dr. Brylowski (Doc. 44,
153

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 154 of 193

Attach. 3 at 192-93), and the Court has already explained that it

presumes an attorney exercised reasonable professional judgment
where the record is incomplete or ambiguous. Chandler, 218 F.3d at
1314 n.l5.

Based on the foregoing, the Court finds that the state habeas

court reasonably decided that trial counsel were not deficient in
their investigation of the dysfunctional, abusive, and neglectful
environment

Petitioner

endured.

See

Pittman,

871

F.3d

at

1251

(rejecting the petitioner's argument that trial counsel performed
deficiently for

failing

to

^'obtain

records, . . . properly

interview family members, and locate and interview those familiar
with [the petitioner] and his history.").
Selection of Witnesses

With

respect to trial counsel's

selection

of

witnesses,

^^[wjhich witnesses, if any, to call, and when to call them, is the

epitome of a strategic decision, and it is one that [the Court]
will seldom, if ever, second guess." Rhode, 582 F.3d at 1284

(quotation omitted). Petitioner argues it was unreasonable for
trial counsel to decide Petitioner's friends would be unhelpful

witnesses without asking relevant questions and speaking to many
of them. (Doc. 109 at 120-21.)

As previously mentioned. Ginger was not the only one of
Petitioner's friends that trial counsel interviewed; they also

spoke to Amy and received information about Mr. Kennedy. After
154

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interviewing Ginger and Amy, Mr. Edwards recalled that Mr. Daly

""wasn't very comfortable about calling them to the witness stand
because he wasn't completely sure what they would say, how they
would react, [and] he did not think they came across well[.]" (Doc.
38, Attach. 3 at 48.) As for other members of Petitioner's group,

Mr. Edwards testified ""there wasn't information that [they] had

received that seemed to be of adequate sufficient value benefit to
the defense's case to offset the possibility of the witnesses

deciding to share something that they'd not bothered to share with
us,

coming

across

rather

peculiarly,

not connecting

with the

jury[.]" (Id. at 49.)
While

Petitioner

faults

trial

counsel

for

making

their

determination without interviewing several witnesses. Petitioner
fails to acknowledge trial counsel received information about
Petitioner's peers from Petitioner himself and other members of

the group, like Amy, Ginger, and Mr. Kennedy. (Doc. 44, Attach. 3
at 173-78, 189-90; Doc. 44,' Attach. 4 at 156-62.) In fact, Mr.

Daly had expressed similar concerns that Mr. Kennedy was not much
help and ""could probably only hurt." (Doc. 44, Attach. 4 at 170.)
For these reasons, the state habeas court's decision that trial
counsel were not deficient in their selection of witnesses was not
unreasonable.

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Presentation

Even though Petitioner identifies some additional evidence
the jury did not hear, ^'[t]he mere fact . . . that other testimony

might have been elicited from those [witnesses] who testified is
not a sufficient ground to prove ineffectiveness of counsel."
Waters, 46 F.3d at 1514 {quotation omitted).

It is common practice for petitioners attacking their
death sentences to submit affidavits from witnesses who

say

they

could

have

supplied

additional

mitigating

circumstance evidence, had they been called, or, if they
were called, had they been asked the right questions.
This case is no exception. But the existence of such
affidavits, artfully drafted though they may be, usually

proves little of significance. . . . That other witnesses
could

have

been

called

or

other

testimony

elicited

usually proves at most the wholly unremarkable fact that
with the luxury of time and the opportunity to focus
resources on specific parts of a made record, postconviction counsel will inevitably identify shortcomings
in the performance of prior counsel.
Id. at 1513-14.

The

state

habeas

court

reasonably

determined

that

trial

counsel's presentation of evidence of the dysfunctional, abusive,
and neglectful environment in which Petitioner was raised was not
deficient. Indeed, as the state habeas court found and this Court
recounted in detail, trial counsel utilized Ms. Richardson, Ms.

Connelly, Ms. Griffin, Ms. McLeod, Gilbert, and others to detail
Petitioner's

troubled

upbringing,

which

included

evidence

of

Petitioner's mother slapping Gilbert and calling him terrible
names. Petitioner's mother's failure to provide for her children's

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basic needs, the unsanitary and dangerous housing conditions, and
Petitioner's

role

as

his

brothers'

caretaker.

See

Background

Sections V.A-E, supra. The state habeas court also noted that trial

counsel presented testimony that Petitioner's mother was depressed
and anxious, made poor choices, had limited coping skills, and was

barely able to take care of herself along with evidence of her
bizarre interactions with Gilbert and the police. (Doc. 52, Attach.
8 at 84-85.)

Moreover,

onsidering the realities of the courtroom, more

is not always better. The type of more-evidence-is-better approach

advocated by [Petitioner] might seem appealing—after all, what is
there to lose? But there can be a lot to lose." Raulerson, 928

F.3d at 998 (internal citations and quotation marks omitted). For

example. Petitioner takes issue with trial counsel's failure to
introduce evidence that Petitioner's mother interfered with his

efforts to obtain a GED and that Petitioner sought advice from a

former teacher about obtaining a job in the months leading up to
the crimes. (Doc. 109 at 112, 112 n.36.) Petitioner, however, fails
to realize that this evidence could have backfired against other

aspects of trial counsel's mental health strategy, showing instead
that he was functioning normally in the time leading up to the
crimes

by

having

the

foresight

to

pursue

these

endeavors.

Additionally, as discussed below, there were also several other
risks associated with eliciting further information from Gilbert.
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See Analysis Section I.D.2.c.ii, infra. The state habeas court's
decision

that

presentation

trial

of

counsel

the

were

not

dysfunctional,

deficient

abusive,

and

in

their

neglectful

environment was reasonable.

In

summary,

the

Court

concludes

the

state

habeas

court

reasonably determined that Petitioner failed to show that his trial
counsel acted deficiently in investigating and presenting evidence
of the dysfunctional, abusive, and neglectful environment.
ii.

The

state

habeas

Prejudice

court

also

reasonably

determined

that

Petitioner failed to establish that he was prejudiced by trial

counsel's investigation and presentation of Petitioner's mother's
abusive, neglectful behavior and symptoms of mental illness. (Doc.

52, Attach. 8 at 80, 86-87.) The state habeas court reached this
conclusion by determining further evidence that Gilbert could have

provided of the abusive and neglectful environment and his mother's
mental health was largely cumulative to that presented to the jury,
and there was no reasonable probability of a different outcome.

(Id. at 86-87.) The state habeas court was not unreasonable in its
determination that this evidence, as well as other evidence about

Petitioner's abusive childhood, was largely cumulative.
As mentioned before. Petitioner contends the state

court's

cumulative

conclusions

were

legally

and

habeas

factually

unreasonable. (Doc. 109 at 146-47.) Petitioner argues the jury did
158

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 159 of 193

not

learn

suffered,

about

the

full

which

included

extent

of

physical

the

abuse

abuse

and

and

neglect

exposure

to

he

his

mother's mental illness and bizarre behavior. (Id. at 142-144.)

Since trial counsel presented ^"zero" evidence of physical abuse by

his mother. Petitioner argues the state habeas court's cumulative
conclusions were unreasonable. (Id. at 146-47.) Had the jury heard

the

mitigating

evidence

presented

during

the

state

habeas

proceedings. Petitioner contends there is a reasonable probability
that the jury would have recommended a life sentence. (Id. at 146.)
At the state habeas proceeding. Petitioner presented evidence
that Petitioner's mother neglected her children, used Petitioner
as his brothers' caretaker, and disregarded his mental health care

treatment. During his testimony. Dr. Cunningham referenced the
time that Petitioner's mother left him in a hot car for several

hours when he was 20 months old. (Doc. 38, Attach. 4 at 177.) For

his part, Gilbert testified that his mother left him and Petitioner
to take care of themselves, and he described how his mother would

either be away from the home or lock herself in her room. (Doc.
38, Attach.

1 at 137, 142.) Gilbert discussed the

ways that

Petitioner was his primary caretaker, including how Petitioner
made him breakfast,' made sure he got to school, and cleaned the
house. (Id. at 141, 154, 185.) Ginger echoed Gilbert's account
that Petitioner took care of his brothers by cooking and cleaning.
(Doc. 38, Attach. 2 at 97.) Dr. Cunningham and Dr. Schwartz-Watts
159

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 160 of 193

both

testified

well-being,

that

Petitioner's

including

his

mother

medication

sacrificed

regimen

Petitioner's

and

school

attendance, so that he could serve her babysitting needs. (Doc.
38, Attach. 1 at 242; Doc. 38, Attach. 4 at 174.)

At trial, Ms. Richardson described the same incident when
Petitioner's mother left him in a hot car at 20 months old. {Doc.

33, Attach. 8 at 11-12.) Trial counsel also presented evidence
about how Petitioner's mother left him and his brother alone to

the extent that they were able to regularly break into an abandoned

building.

(Doc.

33, Attach.

10 at 45-46.) At trial, Gilbert

testified that Petitioner was the man of the house, doing most of

the cooking and cleaning, and Simon added that Petitioner was ^^like
[his] father." (Doc. 34, Attach. 4 at 20-21, 29.) Ms. Connelly,
the CPS worker from Texas, described how Gilbert told her that
Petitioner was the one in the household who had to do ^^everything."

(Doc.

33,

Attach.

10

at

45.)

Mr.

Albertson

testified

that

Petitioner's mother kept him out of school to take care of his
younger brothers (Doc. 34, Attach. 2 at 21), and Ms. Dane-Kellogg
testified about how Petitioner's mother did not ensure Petitioner

regularly took his medication (Doc. 34, Attach. 3 at 46-47).
Petitioner also argues he presented new evidence that his
mother was emotionally abusive during the state habeas proceeding.

Ms.

Chappell

testified

by

affidavit

that

she

could

hear

Petitioner's mother screaming and cursing at the children from
160

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''two houses away." (Doc. 38, Attach. 8 at 63.) Petitioner's father
also testified by affidavit about how they fought constantly and
described ways she was verbally abusive. (Id. at 69-71.) At trial,
however, the jury heard from Ms. McLeod that Petitioner's mother
referred to Gilbert as a "fat bastard." (Doc. 34, Attach. 4 at 6.)

Another

theme

Petitioner

presented

in

the

state

habeas

proceedings was the impoverished condition of Petitioner's home,

including their lack of basic necessities and hygiene problems.
Gilbert recounted that everything in their house was broken and
that nothing was ever repaired. (Doc. 38, Attach. 1 at 154-56.)
Ms.

Chappell

also

described

cleaning

the

filthy

house

after

Petitioner's arrest. (Doc. 38, Attach. 8 at 65.) Both Gilbert and

Ms. Chappell testified during the state habeas proceedings about

the family's lack of food and water. (Doc. 38, Attach. 1 at 138,
158; Doc. 38, Attach. 8 at 62, 64.) Petitioner highlighted Ms.

Chappell's recollection of the family asking her for food and
money. (Doc. 38, Attach. 8 at 62.)

Contrary
counsel

to

presented

Petitioner's

home

Petitioner's
extensive
from

CPS

abbreviated
evidence

workers

and

description,

about

the

Gilbert.

Ms.

trial

state

of

Connelly

recounted Gilbert's report on multiple occasions that their home

was filthy and had no electricity, and there was rotten food in
the refrigerator and freezer. (Doc. 33, Attach. 10 at 34, 45.) Ms.
Connelly testified that Gilbert would arrive to school without
161

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 162 of 193

lunch or money, and his mother failed to complete forms to obtain
free lunch for him. (Id. at 35-36.) Ms. Connelly described Gilbert

as being dirty and documented that he had hygiene problems. (Id.
at 35, 40.) Ms. Griffin testified about how Petitioner's family

was still facing chronic neglect years later. The jury heard that
Gilbert was kicked out of school for hygiene issues, and Simon had
issues with lice. (Doc. 33, Attach. 11 at 4, 6.) Simon reported to

Ms. Griffin that they could not sleep in the beds in their home

because they were infested with fleas. (Id. at 3, 17.) Trial
counsel used Ms. Griffin to introduce pictures she had taken during

her inspection so the jury could see the condition of the home.
(Id. at 10-21.)

Based on the foregoing. Petitioner clearly presented evidence

during the state habeas proceedings about neglect by his mother,
emotional abuse by his mother, and the impoverished condition of
their home that was largely cumulative of the evidence at trial.

Whether

postconviction

evidence

about

physical

abuse

by

Petitioner's mother and her mental illness was largely cumulative

requires additional discussion.

In

the

state

habeas

proceeding.

Petitioner

highlighted

evidence that he and his brother were physically abused by his

mother.

In

particular.

Petitioner

highlighted

that

Gilbert

described a time when Petitioner's mother attacked Petitioner with

a hockey stick, leaving him bleeding and unconscious. (Doc. 38,
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 163 of 193

Attach. 1 at 133-34.) Gilbert also testified about a time where

his mother hit him with a fly swatter when he answered homework
questions incorrectly. (Id. at 140.) Petitioner goes so far as to
say

that

^"zero"

evidence

of

his

mother's

physical

abuse

was

introduced at trial. (Doc. 109 at 143.)

While the jury may not have heard these specific examples,
Gilbert testified at trial that his mother was ^'very abusive," and

Ms. McLeod also testified that Gilbert's mother slapped and hit
Gilbert. (Doc. 34, Attach. 4 at 6, 22.) Thus, evidence at the state

habeas

proceedings

amplified

the

theme

and

provided

better

examples of Petitioner's mother's physical abuse. Moreover, trial
counsel presented evidence that Petitioner was physically abused
by his stepfather, further suggesting the jury heard the theme
that Petitioner was subjected to physical abuse as a child. Ms.
Richardson recounted that Petitioner's stepfather ^'used ridicule

and

over-disciplined"

Petitioner,

^'spanked

him

several

times

daily, sometimes shook him, [and] deliberately stepped on his hands
with [leather] shoes when he was playing." (Doc. 33, Attach. 8 at
24.)

Petitioner also introduced evidence during the state habeas

proceedings of Petitioner's mother's mental health issues, the

history of mental illness in her family, and her bizarre behavior.
Dr. Cunningham testified that Petitioner's mother was mentally ill
and discussed what it was like to grow up in a home with a mentally
163

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 164 of 193

ill parent. (Doc. 38, Attach. 4 at 168-71.) Ms. Chappell discussed
in her affidavit how members of Petitioner's mother's family also
experienced mental health issues. {Doc. 38, Attach. 8 at 67.) As
for

her

behavior,

Gilbert,

Ginger,

and

Petitioner's

father

described how Petitioner's mother was unpredictable and paranoid.
(Doc. 38, Attach. 1 at 172, 182; Doc. 38, Attach. 2 at 99-100;

Doc. 38, Attach. 8 at 69-71.) Examples of Petitioner's mother's
odd behavior included the circumstances surrounding Mr. Variah's

attendance
believed

at

she

Petitioner's
had

been

birthday

probed

by

party,

aliens,

the fact
and

Ms.

that

she

Chappell's

recollection of her frequent calls to the police for non-legitimate
reasons. (Doc. 38, Attach. 1 at 109-13, 177; Doc. 38, Attach. 8 at

63.) Gilbert and Ginger testified that Petitioner's mother abused
alcohol and drugs with Gilbert and other people who were her
children's age. (Doc. 38, Attach. 1 at 158-59; Doc. 38, Attach. 2
at 100.) Gilbert also testified about his mother's inappropriate

sexual boundaries, including that it was ^'not uncommon" for them

to find his mother having sex with someone. (Doc. 38, Attach. 1 at
165.) Ginger and Ms. Dahlquist elaborated that Petitioner's mother
was sexually involved with Petitioner's friends. (Doc. 38, Attach.
2 at 103; Doc. 38, Attach. 8 at 76.)

At trial, Ms. Richardson testified that Petitioner's mother

suffered from depression and anxiety and was on an antidepressant.
(Doc. 33, Attach. 8 at 30.) Ms. Eaton also testified Petitioner's
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mother reported that she had difficulty ''growing up and coping[,]"
and her father was an alcoholic. (Doc. 34, Attach. 1 at 72; Doc.

34, Attach. 2 at 1.) Ms. Eaton testified Petitioner's mother "had

•a pretty difficult life, had made poor choices probably as a child,
which continued even more so after she became an adult, and that

she was probably barely able to take care of herself, and certainly
not much able to take care of an ailing parent or three children."

(Doc. 34, Attach. 2 at 7.) As Mr. Edwards explained, trial counsel
utilized

Ms.

[Petitioner's]

McLeod's

mother

testimony,

had

to

"suggest

noticeable,

profound

that

psychological

issues herself" and that "something was wrong with her behavior,
in her thinking, that went merely beyond the fact that she was

just

neglectful." (Doc.

38,

Attach.

3 at

98-99.)

Ms.

McLeod

reported that Petitioner's mother called the police on Gilbert on
several occasions and she intercepted Gilbert's mail from his
father. (Doc. 34, Attach. 4 at 6-7.) Trial counsel also utilized

Mr. Grimm's testimony to share how Petitioner's mother behaved
bizarrely

during

her

divorce

proceedings

by

focusing

on

insignificant issues relative to the dissolution of her family.
(Doc. 38, Attach. 3 at 100.) Although the evidence presented in
the state habeas proceedings was unquestionably disturbing and
"amplif[ied] the theme of growing up with a mentally ill mother,"
this comparison reveals that the jury heard that Petitioner's
mother suffered from mental health issues and engaged in strange
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behavior. Dallas, 964 F.3d at 1308; see also Boyd, 592 F.3d at

1297-98 (concluding that evidence about the petitioner's father
was ""in some measure cumulative" even though the jury did not learn
about

his

violent

behavior

because

it

heard

that

he

was

an

''absentee father[,] a criminal who embarrassed the family, and

that [the petitioner's] relationship with his father was on bad
terms and with ill feelings, leading [the petitioner] to feel hurt
and lonely[]").

Even if some of the more specific examples of Petitioner's

mother's physical abuse, mental illness, drug use, and lack of
sexual boundaries were not cumulative, this Court finds that the
evidence was not without risk to Petitioner. The Eleventh Circuit

has repeatedly emphasized how evidence that a sibling endured
similar hardship and emerged as a law-abiding citizen can pose as
much harm as good. Boyd, 592 F.3d at 1301 ("[T]he additional

mitigating

evidence

emphasizing

physical

abuse,

neglect,

and

poverty would have highlighted that [petitioner's] sister [] grew
up

in

the

same

environment,

had

probably

been

beaten

more

frequently, and still emerged as a successfully employed, lawabiding

citizen.");

(explaining

the

fact

see
that

also
the

Sochor,

685

petitioner's

F.3d

at

brother

1032-33

"suffered

poverty and hunger during childhood, [but] he did not become a

rapist and murderer as an adult[]" posed as much harm as good).
Here, because Gilbert suffered the same neglect and physical abuse
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and endured his mother's bizarre behavior as a child, his testimony

could have posed as much harm as good. Sochor, 685 F.3d at 103233. This, along with the extent of the aggravating factors present

in

this

case

discussed

above,

further

negates

a

finding

of

prejudice.

Based on the foregoing, the Court concludes the state habeas

court reasonably determined that trial counsel were not deficient
for investigating and presenting evidence of the dysfunctional,
abusive,

and

neglectful

environment

in

which

Petitioner

was

raised. Further, even if trial counsel had performed deficiently,
the state habeas court reasonably concluded that Petitioner failed

to show prejudice. Accordingly, the state habeas court's decision
regarding

trial

counsel's

investigation

and

presentation

of

evidence of the dysfunctional, abusive, and neglectful environment
in

which

Petitioner

was

raised

was

not

contrary

to,

or

an

unreasonable application of, clearly established federal law or
based on an unreasonable determination of the facts.

d.

Petitioner

Experienced Mental Health Professionals

argues

trial

counsel

performed

deficiently

by

failing to utilize experienced capital mitigation professionals
Jeff Yungman and Paige Tarr or any comparable replacement, even

though trial counsel had funds to hire them and recognized they
were not qualified to conduct the investigation on their own. (Doc.
109 at 122, 126-27.) Petitioner contends Ms. Richardson, a social
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 168 of 193

worker, had no capital experience and was '"incompetent in her role"
because she never interviewed Petitioner, his family, or friends;

failed

to

"disastrous"

identify

helpful

witness.

(Id.

experts;
at

and

127-28,

was
129.)

ultimately

a

Additionally,

Petitioner points out that Mr. Daly, the volunteer attorney on
Petitioner's case that Mr. Edwards and Mr. Beauvais had appointed

as an investigator, had no capital experience. (Id. at 128-29.)
Because

trial

counsel

retained

no

experienced

mitigation

professional. Petitioner also contends trial counsel performed
deficiently by failing to interview a wide range of lay witnesses
multiple times. (Id. at 130-32.)

On

review,

the

state

habeas

court

rejected

Petitioner's

argument that trial counsel were ineffective for failing to utilize
Mr. Yungman and Ms. Tarr. (Doc. 52, Attach. 8 at 59, 63.) Instead,
the state habeas court found trial counsel's decision not to retain

a mitigation specialist was reasonable because they conducted an
extensive mitigation investigation utilizing all three attorneys

and an experienced social worker. (Id. at 59, 68.)
As for trial counsel, the state habeas court found that trial

counsel decided not to utilize a mitigation specialist because

2"^ Again, Petitioner references trial counsel's preparation of Ms.
Richardson. (Doc. 109 at 130.) As previously explained, the Court
found Petitioner's claim that "[c]ounsel failed to adequately

prepare defense witnesses for their testimony . . ." should be
dismissed and he would not be permitted to brief this claim because
it was insufficiently pled. (Doc. 104 at 28-29, 29 n.5.)
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 169 of 193

their preference was to conduct the investigation themselves in
order to talk to witnesses and develop relationships. (Id. at 60.)
The state habeas court noted that all three attorneys were highly

experienced
Edwards

and

and

participated

Mr.

Beauvais

in

had

the
death

investigation;
penalty

that

Mr.

experience

and

experience conducting mitigation investigations; and that they
provided

Mr.

Daly

with

direction

when

he

was

appointed

investigator.28 (Id. at 59-61.) The state habeas court recognized
the extensive mitigation investigation trial counsel performed,
which

included

interviewing

Petitioner,

obtaining

records,

interviewing Petitioner's family and friends, traveling to Texas,
investigating the two-year gap, and utilizing Ms. Richardson to
locate records and interview witnesses. (Id. at 61-62.)
The

state

habeas

court

considered

that

trial

counsel

substituted Ms. Richardson, an experienced social worker, for Mr.

Yungman and Ms. Tarr because they were ''very, very busy," and "just
really

didn't

have

the

time."

(Id.

at

60.)

Regarding

Ms.

Richardson's contribution to the investigation, the state habeas

28 The state habeas court recognized Petitioner was represented by

three experienced trial attorneys and two of them had experience
in capital cases. (Doc. 52, Attach. 8 at 22-24.) Mr. Edwards had
worked on 12 murder cases and four capital cases, including one
where he served as lead counsel, and Mr. Beauvais had handled 15

murder cases and one death penalty case in which he was responsible
for mitigation evidence. (Id. at 23.) Mr. Daly had handled about
30 murder cases, the majority of which he served as first chair.
(Id. at 24.)
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Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 170 of 193

court credited trial counsel's assessment that she did a ^'fabulous

job finding people, interviewing them and gathering information
for [them]." (Id. at 62.) Relevant to Petitioner's arguments, the

state habeas court rejected Petitioner's claim that trial counsel
were ineffective in utilizing Ms. Richardson because she never

spoke to Petitioner or his family. (Id. at 63.) The state habeas
court found that trial counsel had a ''reasonable strategic reason"

for not having Ms. Richardson meet with Petitioner, which was to

convey objectivity and limit the nature of cross-examination. (Id.
at 64.) It was also unnecessary for Ms. Richardson to meet with

his family and other witnesses because trial counsel did. (Id. at
63.)

Even though trial counsel ultimately decided to pull Ms.
Richardson

from

the

stand,

the

state

habeas

court

rejected

Petitioner's argument that trial counsel were ineffective for

presenting her and found they reasonably decided to use her. (Id.
at 66.) Because trial counsel had thoroughly prepared her, they

could not be faulted for her "pitiful" testimony and failure to

perform. (Id.) In any event, the state habeas court found she
provided significant information. (Id.)
Petitioner

contends

the

state

habeas

court

unreasonably

determined facts and unreasonably applied Strickland to find trial
counsel's failure to hire Ms. Tarr and Mr. Yungman was reasonable.

(Doc. 109 at 138.) According to Petitioner, the state habeas court
170

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 171 of 193

based

its

decision

on

the

fact

that

trial

counsel

made

a

^treasonable decision to conduct their own mitigation investigation
in

the

case

utilizing

the

skills

and

resources

of

all

three

attorneys" and ^^retained the services of an experienced social
worker to assist in the mitigation investigation." (Id. at 137.)
In

Petitioner's

view,

these

findings

ignore

trial

counsel's

representations that mitigation professionals were necessary and

that ABA guidelines mandated the use of a professional investigator
and mitigation specialist. (Id.) Petitioner further asserts that
Mr. Beauvais's representation that trial counsel decided against

using Mr. Yungman and Ms. Tarr due to lack of availability is
""belied by the record" because trial counsel waited two years to
substitute Ms. Richardson, and any lack of availability was due to

their

deficient

Petitioner

performance.

challenges

the

(Id.

at

137-38

reasonableness

of

n.52.)
the

Finally,

state

habeas

court's finding about Ms. Richardson's presentation because the
state

habeas

court

failed

to

acknowledge

that

trial

counsel

admitted they prepared her ""poorly" and that her presentation was
""harmful." (^ at 139.)
The parties presented evidence that on October 8, 2002, trial
counsel moved for funds for the expert assistance of Mr. Yungman,
a

""social

worker/mitigation

specialist,"

and

Ms.

Tarr,

a

""mitigation specialist." (Doc. 49, Attach. 18 at 188, 195.) During

171

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 172 of 193

an ex parte hearing on November 7, 2002, the trial judge authorized
Mr. Yungman's and Ms. Tarr's services. (Id. at 10.)

Trial counsel revisited the issue during an ex parte hearing

on November 17, 2004, and requested that the trial judge appoint
Mr. Daly to assist them in the investigation. (Id. at 91-92.) Mr.
Edwards informed the trial judge it was his preference and practice
to conduct investigations himself because he liked to see, talk,
and develop relationships with people, and while they had already

spent 80 hours on pure investigation on the case, additional help
was needed so they could turn to more of the legal issues. (Id.)
Trial counsel requested that the trial judge appoint Mr. Daly
because he knew the case intimately and had started developing
relationships with the people involved. (Id. at 96.) During the

same hearing, trial counsel also asked to substitute Ms. Richardson
for

Ms.

Tarr.

(Id.

at

97.)

Mr.

Edwards

explained

that

Ms.

Richardson ''could provide the exact same services and more," she
was local, and she was available. (Id.) On December 23, 2004, the
trial

judge

granted

the

motion

to

appoint

Mr.

Daly

as

an

investigator based on the nature of and his familiarity with the
case and the motion to substitute Ms. Richardson for Mr. Yungman

and Ms. Tarr "predicated upon [her] expertise as well as her
increased availability due to her residing in the local area."
(Doc. 50, Attach. 1 at 123-24, 126.)

172

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 173 of 193

Mr.

Edwards's

testimony

during

the

state

habeas

hearing

echoed his statements to the trial court that trial counsel decided

they wanted to do the investigation on their own and believed they
had the resources to do so. {Doc. 38, Attach. 2 at 209.) He also

testified it was his preference to do his own investigation, and
he had conducted his own investigation in other capital cases.
(Doc. 38, Attach. 3 at 30-31.) Mr. Beauvais further recalled that

trial counsel decided against utilizing Mr. Yungman and Ms. Tarr

because they were busy and did not have the time. (Id. at 188.)
Although Mr. Daly had not conducted a mitigation investigation in
a capital case, he testified that he had done investigations in
his own non-capital cases, and he acted at Mr. Edwards and Mr.
Beauvais's direction in this case. (Id. at 132.)

Regarding Ms. Richardson, Mr. Edwards explained that Ms.
Richardson had spent a ''professional lifetime working in . . .
social

work,

dependency

investigations

.

.

.

and

was

very

knowledgeable about the inner workings of family, human service
organizations and agencies . . . ." (Doc. 41, Attach. 1 at 70.)
Mr. Beauvais explained he was primarily responsible for working
with her, and she tracked people down, did initial interviews, and
recorded

testified

information

Ms.

for

them.

Richardson "did

(Id.

a

at

250-51.)

fabulous

job

Mr.

finding

Beauvais

people,

interviewing them, and gathering information for [them]." (Id. at
280-81.) After she interviewed people, Mr. Beauvais explained that
173

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 174 of 193

that

he

then

^'reinterviewed

them." (Id.

at

282.)

Mr.

Edwards

explained they decided against having Ms. Richardson meet with
Petitioner in order ^^to convey to the jury the objective nature of
the information that Ms. Richardson was providing and also to limit
the nature of the cross-examination that she may be confronted

with following her direct testimony." (Doc. 3"8, Attach. 3 at 62.)

Reflecting on the case years later, Mr. Edwards testified that he
did not think he appreciated the significance of the role of a

mitigation investigator to get information from lay witnesses, and
he did not think they, ^^as lawyers," were adequate to perform the
role. (Id. at 113.) Mr. Beauvais also commented that trying to

find people by themselves was ^^a mistake [they] made in the
case[.]" (Id. at 189.)

As for

Ms.

Richardson's testimony,

when

questioned

about

whether trial counsel prepared Ms. Richardson to testify, Mr.

Edwards responded: ^'Poorly, apparently, but yes." (Id. at 55.)
Commenting further,

prepared her

however,

Mr.

Edwards explained

that

they

great deal[,]" that it was not a ^^one-time, sit-

down 30 minute session[,]" and they ^'worked with her over time."
(Id.) Mr. Beauvais explained that trial counsel were surprised by

her performance because she had testified in court in her work
frequently. (Doc. 41, Attach. 1 at 281.)
The Court concludes that the state habeas court reasonably
determined that Petitioner failed to show that his trial counsel's
174

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 175 of 193

performance was deficient for failing to utilize Mr. Yungman and
Ms. Tarr or presenting Ms. Richardson as a witness. At the outset,

there is no general requirement that counsel retain a mitigation
specialist, social worker, or other expert to be effective. See
Morrow v. Warden, 886 F.3d 1138, 1150 (11th Cir. 2018) (quotation

omitted) (explaining that the failure to hire a social worker is
not per se ineffective); see also Waldrop v. Thomas, No. 3:08-CV515-WKW,

2014

WL

1328138,

at

*62

(M.D.

Ala.

Mar.

31,

2014)

(^'[W]hile counsel is certainly obligated to undertake a reasonable

investigation

of

mitigating

evidence

in

preparation

for

the

penalty phase, there is no general requirement that counsel retain
a social worker or any other expert for the penalty phase, even if
doing so is a sensible and widely accepted practice."). In fact,
''strategic

decisions—including

whether

to

hire

an

expert—are

entitled to a 'strong presumption' of reasonableness." See Dunn v.
Reeves, — U.S.

, 141 S. Ct. 2405, 2410, 210 L. Ed. 2d 812

(2021).

Additionally, Petitioner's attempts to demonstrate the state
habeas

court's

decision

and

findings

were

unreasonable

are

unavailing. First, the Supreme Court has been clear that "[t]he
ABA Guidelines do not establish independent standards for counsel;

rather, they are merely guides to be considered in determining
whether an attorney's conduct was reasonable." Anderson v. Sec'y,
Fla. Dep't of Corr., 752 F.3d 881, 904 (11th Cir. 2014) (citing
175

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 176 of 193

Strickland, 466 U.S. at 688, 104 S. Ct. at 2065); see also Bobby,

558 U.S. at 8, 130 S. Ct. at 17 {rejecting the treatment of ABA
Guidelines as ^'inexorable commands with which all capital defense

counsel must fully comply" (internal quotation marks omitted)).
Thus, the

state

habeas court's

decision

was

not

automatically

unreasonable because of ABA guidelines about what professionals
should be included on a mitigation team.

Additionally, not even trial counsel's own evaluations or
misgivings about their decisions dictate whether trial counsel

performed deficiently. See Grayson v. Thompson, 257 F.3d 1194,
1222 (11th Cir. 2001) ("[E]ven counsel's own hindsight regarding

what might have influenced the jury cannot support a finding of
deficient

performance.");

reasonableness

of

a

Chandler,

counsel's

218

F.3d

performance

is

at
an

1315

("The

objective

inquiry."); King v. Warden, Ga. Diagnostic Prison, No. CV 2;12119, 2020 WL 423344, at *15 (S.D. Ga. Jan. 24, 2020) ("[B]ecause

ineffectiveness is a question which we must decide, admissions of

deficient performance by attorneys are not decisive." (quoting
Harris v. Dugger, 874 F.2d 756, 761 n.4 (11th Cir. 1989))). As a

result, neither the fact that trial counsel at one time believed

Mr. Yungman and Ms. Tarr were necessary nor that trial counsel

subsequently

thought

it

was

a

mistake

to

do

the

mitigation

investigation themselves proves the state habeas court's decision
was unreasonable.

176

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 177 of 193

Petitioner

further

disputes

Mr.

Beauvais's

representation

that trial counsel decided against using Mr. Yungman and Ms. Tarr

due to lack of availability because trial counsel waited two years
to substitute Ms. Richardson and any lack of availability was due
to their deficient performance. (Doc. 109 at 137-38 n.52.) Other

than conclusory assertions, however. Petitioner has not produced

any evidence to rebut Mr. Beauvais's recollection or that these
specialists were any more available at the time trial counsel
obtained funds, which is the core factual basis of his argument.

As the Court previously explained, ^^[a]n ambiguous or silent record
is not sufficient to disprove the strong and continuing presumption
[of effective representation]." Chandler, 218 F.3d at 1314 n.l5.
Petitioner
interview

also

criticizes

Ms.

Richardson's

failure

to

Petitioner and trial counsel's failure to interview a

wide variety of witnesses multiple times. First, the state habeas
court's

determination

strategic

reason"

for

that

not

trial

counsel

having

Ms.

had

a

Richardson

^treasonable

interview

Petitioner was not an unreasonable determination of facts in light

of the evidence presented, nor has Petitioner shown by clear and
convincing evidence that this factual determination was incorrect.
Fotopoulos,

516

F.3d

at

1233

(ttThe

question

of

whether

an

attorney's actions were actually the product of a tactical or
strategic decision is an issue
Petitioner

did

not

even

of fact . . .

challenge
177

the

state

Notably,
habeas

court's

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 178 of 193

underlying

factual

findings

regarding

objectivity

and

cross

examination as the reasons for trial counsel's decision. Nor could

he, since that is exactly what Mr. Edwards testified to as his

reasoning. (Doc. 38, Attach. 3 at 62.) As for trial counsel's
failure to conduct a series of wide-ranging interviews. Petitioner

is mistaken on this ground as well. Ms. Richardson testified she
interviewed 31 different people - 11 of them twice. (Doc. 33,
Attach. 8 at 4.) Mr. Beauvais confirmed that he then reinterviewed
the individuals. (Doc. 41, Attach. 1 at 282.)

Regarding trial counsel's presentation of Ms. Richardson,
Petitioner claims the state habeas court unreasonably found trial
counsel were not ineffective because trial counsel admitted they,

prepared

her

^"^poorly" and the

state

habeas court failed to

acknowledge her testimony was harmful. (Doc. 109 at 139.) As noted
above,

it

is

Petitioner

who

misrepresents

the

record.

When

questioned about whether trial counsel prepared Ms. Richardson to

testify, Mr. Edwards responded: ^'Poorly, apparently, but yes."
(Doc. 38, Attach. 3 at 55.) Trial counsel explained their efforts

to prepare her and their surprise when she did not perform as they

expected. (Doc. 38, Attach. 3 at 55; Doc. 41, Attach. 1 at 281.)
In the Court's opinion, Mr. Edwards was merely stating that given

her performance, with the benefit of hindsight, they should have
prepared Ms. Richardson more. These after-the-fact statements are

not enough to establish deficient performance. See Grayson, 257
178

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 179 of 193

F.3d at 1222. Additionally, while the state habeas court might not
have used the word ^"harmful," it acknowledged that trial counsel

believed Ms. Richardson's testimony as a witness was ^'pitiful,"
which was not unreasonable given trial counsel's explanation of

Ms. Richardson's shortcomings. (Doc. 52, Attach. 8 at 66 (citing

Doc. 38, Attach. 2 at 238-39).) During his deposition, Mr. Beauvais

expounded

on

what

trial

counsel

meant.

They

believed

Ms.

Richardson's testimony to be problematic because she .^^froze on the

stand and just couldn't answer questions, couldn't convey the
information she possessed to the jury." (Doc. 41, Attach. 1 at
281.) The problem was not, however, that the information was not

presented, as much as that it was disjointed. (Id.) Ultimately,
trial counsel strategically decided against having Ms. Richardson
take the stand again because they decided her ^^presentation was
harmful." (Doc. 38, Attach. 2 at 239; Doc. 38, Attach. 3 at 62-

63.) The Court cannot say the state habeas court's finding that
trial counsel were not deficient for presenting Ms. Richardson was
unreasonable.

Based on the foregoing. Petitioner failed to show the state
habeas court's decision regarding" trial counsel's failure to use

experienced

mitigation

specialists

was

contrary

to,

or

an

unreasonable application of, clearly established federal law or
based

on

an

unreasonable

determination

of the facts.

The

state

habeas court also found Petitioner was not prejudiced by trial
179

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 180 of 193

counsel's reasonable decision not to retain mitigation specialists
or present Ms. Richardson as a witness. (Doc. 52, Attach. 8 at 63,
66, 68-69.) While Petitioner claims the state habeas court made

some unreasonable determinations with respect to this component of

the Strickland analysis (Doc. 109 at 147-48), Petitioner fails to
identify

any

specific

evidence

that

trial

counsel

could

have

discovered had they retained Mr. Yungman or Ms. Tarr. Likewise,
other than some conclusory allegations that trial counsel intended
to utilize Ms. Richardson to present more information and that she
conceded to the State on cross examination. Petitioner fails to

offer any evidence that trial counsel should have elicited from
Ms. Richardson that was not presented through other witnesses.

Considering this omission, and the fact that Petitioner's failure
to show trial counsel performed deficiently by failing to utilize
mitigation specialists is fatal to his ineffective assistance
claim. Reaves, 872 F.Sd at 1151, the Court does not reach the

prejudice prong of the Strickland analysis on this claim. See Boyd
V. Comm'r, Ala. Dep't of Corr., 697 F.Sd 1320, 1340 (11th Cir.

2012) (concluding petitioner failed to establish prejudice when he

failed

to

say

what

mitigation

expert

could

have

done

with

additional time or explain how he was prejudiced by the failure to

have more time to prepare); cf. Williams v. Sellers, No. CV412106,

2021

WL - 3871928,

at

*17

n.l2

(S.D.

Ga.

Aug.

30,

2021)

(rejecting argument that trial counsel performed deficiently by
180

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 181 of 193

failing to use Paige Tarr after trial counsel received funds to
hire her because petitioner failed to ''offer any evidence that
trial counsel could have discovered had they retained Ms. Tarr[]").
In conclusion, the Court finds that the state habeas court

reasonably determined that Petitioner failed to show that trial
counsel acted deficiently by failing to retain a replacement mental

health expert; investigate the two-year gap; present Petitioner's

jail records; investigate and present evidence that Petitioner was
the victim of incest by his mother; retain a sexual trauma expert;

reliably present evidence that Petitioner was sexually abused by
his

stepfather;

investigate

and

present

dysfunctional,

abusive,

and

endured;

utilize

experienced

and

evidence

neglectful environment
mitigation

of

the

Petitioner

professionals.

Additionally, even if Petitioner carried his burden to show trial
counsel

performed

deficiently

by

deficiently,

failing

including

to

present

if

they

evidence

performed

of

his

neuropsychological impairments, the Court finds that the state
habeas court reasonably determined that Petitioner failed to show
that these deficiencies prejudiced his defense. The Court agrees
with

the

state

habeas

court

that

Petitioner

failed

to

show

a

reasonable probability that absent these deficiencies, considered
individually and cumulatively, that the result of the proceeding
would have been different. Pye, 50 F.4th at 1041-42. This is true

considering the extensive aggravating factors present in this
181

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 182 of 193

case, the cumulative nature of the additional mitigating evidence,

and the risk of opening the door to additional damaging evidence.
Petitioner failed to show that the state habeas court's decision

resulted in a decision that was contrary to, or an unreasonable

application of, clearly established federal law or was based on an
unreasonable

determination

of facts

in

light

of the

evidence

presented.
II.

COMPETENCE TO STAND TRIAL

A.
The

Legal Standard
Due

^'prohibit[s]

Process

states

Clause

from

of

trying

the

and

Fourteenth

convicting

Amendment

a

mentally

incompetent defendant." James v. Singletary, 957 F.2d 1562, 1569
(11th Cir. 1992) (first citing Dusky v. United States, 362 U.S.
402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); then citing Pate v.

Robinson, 383 U.S. 375, 384-86, 86 S. Ct. 836, 841-42, 15 L. Ed.
2d 815 (1966); and then citing Fallada v. Dugger, 819 F.2d 1564,
1568

(11th

Cir.

1987)). The

test established

for

determining

whether a defendant is competent to stand trial requires courts to
consider (1) whether ''he has sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding"
and (2) whether "he has a rational as well as factual understanding
of the proceedings against him." Dusky, 362 U.S. at 402, 80 S. Ct.
at 789. Petitioner has raised a substantive competency claim, which

both parties agree cannot be procedurally defaulted, that his due
182

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 183 of 193

process rights were violated because he was actually incompetent
at the time of his trial. (Doc. 109 at 174; Doc. Ill at 105);

Raheem, 995 F.3d at 929 (citing Lawrence v. Sec^y, Fla. Dep^t of
Corr., 700 F.3d 464, 481 (11th Cir. 2012)). Since the state habeas

court did not make a ruling on Petitioner's substantive due process

claim, the ^'Court is permitted to address the merits outside of
the framework of § 2254(d)." Raheem v. Humphrey, No. 1:ll-CV-1694-

AT, 2015 WL 13899724, at *18 (N.D. Ga. Sept. 24, 2015) (citing
Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245, 1259 (11th Cir.
2002)).
Petitioner

bears

the

burden

to

establish

that

he

was

incompetent to stand trial and entitled to a hearing.

In

advancing

his

substantive

competency

claim,

[Petitioner]
^^is
entitled
to
no
presumption
of
incompetency and must demonstrate his . . . incompetency
by
a
preponderance
of the
evidence." James
v.
Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992).
Relatedly, we have said that in order to be entitled to
an evidentiary hearing on a substantive competency
claim, which [Petitioner] seeks here, a petitioner must
present ^^clear and convincing evidence" that creates a
^""real, substantial, and legitimate doubt" as to his

competence. Id. at 1573; accord Medina, 59 F.3d at 1106;
Card V. Singletary, 981 F.2d 481, 484 (11th Cir. 1992)
(^'The standard of proof is high. The facts must
positively, unequivocally and clearly generate the

legitimate

doubt." (alterations

and

quotation

marks

omitted)).

Lawrence, 700 F.3d at 481.

''^The best evidence of [a petitioner's] mental state at the
time of trial is the evidence of his behavior around that time.

183

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 184 of 193

especially the evidence of how he related to and communicated with
others then." Wright, 278 F.3d at 1259. Yet, relevant to this case,

^'[N]ot
every
manifestation
of
mental
illness
demonstrates incompetence to stand trial; rather, the
evidence must indicate a present inability to assist
counsel or understand the charges." Id. at 487-88
(quoting United States ex rel. Foster v. DeRobertis, 741
F.2d 1007, 1012 (7th Cir.), cert, denied, 469 U.S. 1193,
105 S. Ct. 972, 83 L. Ed. 2d 975 (1985)). Similarly,
neither
low
intelligence,
mental
deficiency,
nor
bizarre, volatile, and irrational behavior can be
equated with mental incompetence to stand trial. McCune
V. Estelle, 534 F.2d 611, 612 (5th Cir. 1976). The fact
that a defendant has been treated with anti-psychotic
drugs does not per se render him incompetent to stand
trial. Fallada, 819 F.2d at 1569.

Medina

v.

Singletary,

59

F.3d

1095,

1107

(11th

Cir.

1995).

Moreover, ^^[t]he contemporaneous assessment of trial counsel is

particularly probative because competency is ^primarily a function
of defendant's role in assisting counsel in conducting the defense'
and the defendant's counsel is thus

determine

whether

the

defendant's

^in the best position to

competency

is

suspect.' "

Raheem, 995 F.3d at 930 (quoting Watts v. Singletary, 87 F.3d 1282,
1288 (11th Cir. .1996)).

B.

Analysis

Petitioner

argues

the

Court

should

hold

an

evidentiary

hearing because clear and convincing evidence exists creating a
real, substantial, and legitimate doubt that he was incompetent at
the time of trial. (Doc. 109 at 178.) In support of his argument.

Petitioner points to his history of mental illness which continued

184

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 185 of 193

during trial, his suicide attempts before trial and soon after

sentencing, and his fluctuating prescription medication regimen.
(Id. at 165-71, 176, 178.) Additionally, Petitioner argues his
trial

counsel's

request

that

he

be

closely

monitored

due

to

concerns about his mental state and the trial judge's insistence

on multiple evaluations during trial, which revealed that he was

on the verge of a psychotic break, show he was not competent. (Id.
at 158-65, 176-77.) Petitioner contends his breakdown after his
father's testimony and refusal to dress in civilian clothes during
the penalty phase further evidence his diminished mental state.
(Id. at 171-72, 178.)

Respondent counters that none of the mental health experts
that evaluated Petitioner before, during, or after trial found

Petitioner incompetent to stand trial. (Doc. Ill at 108-10.)
Moreover, Petitioner's attorneys raised no competency issue at the
time of trial when questioned by the trial judge, indicating they
had no trouble communicating with him. (Id.)

Considering trial counsel's assessment of Petitioner's mental
state, the trial judge's interactions with and observations of
Petitioner, Petitioner's behavior, and the results of Petitioner's
mental evaluations at the time of trial, this Court concludes that

Petitioner has not established by a preponderance of the evidence

that he was incompetent at the time of trial or by clear and

convincing evidence that he is entitled to an evidentiary hearing.
185

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 186 of 193

At trial. Dr. Negrin testified that he had diagnosed Petitioner
with bipolar disorder as of 1998. (Doc. 34, Attach. 1 at 33.) Dr.

Nagelberg also testified that his 1998 psychological evaluation of
Petitioner

revealed

evidence

of

prodromal

symptoms

of

schizophrenia and a delusional disorder. (Doc. 34, Attach. 3 at
10-11.) Years later. Dr. Schwartz-Watts opined that Petitioner
suffers from schizoaffective disorder, bipolar type, among other
conditions. (Doc. 38, Attach. 1 at 229.) Before and during trial.

Petitioner was being treated with medication, including, at times,

anti-psychotic drugs. (Doc. 26, Attach. 3 at 25-26; Doc. 39,
Attach. 6 at 29, 60, 95, 135, 142, 219, 260, 284, 310.) Petitioner

also had multiple suicide attempts before the crimes, while he was

awaiting trial, and after his sentencing. (E.g., Doc. 14, Attach.
19 at 1; Doc. 39, Attach. 6 at 16-17, 244; Doc. 41, Attach. 7 at
50.) However, Petitioner's history of mental illness and treatment

with medication, or lack thereof, did not automatically render him

incompetent to stand trial. Medina, 59 F.3d at 1107. Petitioner's
history

of

sentencing

suicide
are

attempts

likewise

and

not

his

suicide

automatically

attempt

after

determinative.

29 Petitioner's suicide.attempt after sentencing is particularly

unpersuasive given it was after trial and after he received an
undoubtedly distressing sentence. See Wright, 278 F.3d at 1259
(indicating the relevant evidence concerns a petitioner's mental
state

''at

the

time

of

trial").

Moreover,

after

this

suicide

attempt, trial counsel did not pursue competency challenges during
his hearing for a new trial. (Doc. 34, Attach. 8 at 3.)
186

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 187 of 193

^^[RJather, the evidence must indicate a present inability to assist
counsel or understand the charges." Id. Petitioner fails to make
this showing.

Although Petitioner's mental health around the time of trial

evidently raised concerns about his competency to stand trial, it
appears that trial counsel and the trial judge appreciated these
concerns and nevertheless concluded Petitioner was competent to

stand trial. See Raheem, 995 F.3d at 930 {explaining trial counsel

are ^'in the best position to determine whether the defendant's

competency is suspect[]"). After alerting the trial judge to
concerns about Petitioner's mental state during voir dire, the

trial

judge

inquired

into

whether

Petitioner

was

able

to

communicate with them and assist in his defense. (Doc. 49, Attach.

18 at 171-72.) Mr. Edwards responded that they had not experienced

any difficulty with this. (Id.) Even reflecting on Petitioner's
mental state years later during the state habeas proceeding, trial
counsel

generally

remained

unconcerned

with

questions

of

Petitioner's competency at the time of trial. Although Mr. Edwards

testified during the state habeas hearing that there were times
when it was challenging to communicate with Petitioner because he

was experiencing psychosis, extreme anxiety about the trial, and
fear because ^Mt]he State wanted to kill him[,]" he also testified
that

Petitioner

was

^^more

or

less

able

to

appreciate

the

circumstance he was in and what [they] were trying to do." (Doc.
187

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 188 of 193

38,

Attach.

Petitioner's

3

at

12.)

competency

When

specifically

during

his

questioned

deposition,

about

however,

Mr.

Edwards averred that ''the question of competency was not one that

gave [him] pause in [Petitioner's] case." (Doc. 41, Attach. 1 at
100.) Mr. Beauvais similarly testified during his deposition that

"nothing in [his] contact with [Petitioner] [] caused [him] to
believe that [Petitioner] was not competent to stand trial and

that [they] needed to go down that road." (Id. at 271.)

Although

brief,

there

were

also

several

occasions

where

Petitioner appropriately responded to questioning by the trial

judge. For example. Petitioner was sworn in and responded to the
trial judge's questions about understanding his decision - after

consulting with his trial counsel - against testifying. (Doc. 33,
Attach. 2 at 33-34.) Additionally, when the trial judge questioned
Petitioner's

decision

to

wear

his

jail

uniform.

Petitioner

conferred with his trial counsel and responded to the trial judge,

indicating he understood he had been convicted and would feel
better not dressed in civilian clothing. (Doc. 33, Attach. 6 at 4-

6.) In contrast to Petitioner's argument that this interaction
shows worrisome behavior. Petitioner's statements create a record
of how well he related to and communicated with the trial judge

and trial counsel and suggest that he understood the proceedings
against him at the time of trial.

188

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 189 of 193

Additionally, other than Petitioner's emotional reaction to

his father's testimony (Doc. 33, Attach. 12 at 50-52), Petitioner
points to no other instance during the multi-day trial when he

failed to act appropriately in front of the jury or when his
behavior required admonition by the trial judge. See Medina, 59
F.3d at 1111 (denying request for evidentiary hearing even though
the defendant misbehaved during the trial and noting he ^'responded

appropriately

to

the

court's

reprimands

[and]

behaved

appropriately during much of the trial[]"). The record is similarly
devoid of any instances of Petitioner showing an inability to
consult

with

counsel

or

expressing

confusion

or

a

lack

of

understanding about the proceedings.

Finally, the

record

provides context for trial counsel's

alarm about Petitioner's mental state, the ensuing psychiatric
evaluations,

and

medication

adjustments.

Petitioner

reported

increased anxiety to his medical providers as his trial approached.
(Doc. 39, Attach. 6 at 284, 310.) Once voir dire began, trial

counsel explained that they were exhausted and that Petitioner was
^'having a difficult time with the process[,]" not accustomed to

the pace, and not getting any sleep. (Doc. 30, Attach. 1 at 3.) It
was under these circumstances that trial counsel reported they had

^'grave concerns about [Petitioner's] wellbeing and welfare[]" and
asked the trial judge that he be monitored and a psychiatric
evaluation

be

completed.

(Doc.

49,

189

Attach.

18

at

153,

158.)

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 190 of 193

Although the trial judge initially wanted a psychiatrist to conduct
the evaluation (id. at 158), Dr. Stockfisch was not iinmediately

available (id. at 167). In light of this delay, the trial judge
confirmed that trial counsel only wanted him evaluated ^'just to be

on the safe side[,]" commenting that Petitioner appeared to him to

be stable, cooperative, and able to communicate with trial counsel.
(Id.) To expedite the process, they agreed that Dr. Grant, who
already

had

Petitioner.

a
(Id.

relationship

with

at 168-69.) After

Petitioner,

would

evaluate

trial counsel reported

Dr.

Grant's findings and recommendations about a medication to help
Petitioner sleep to the trial judge, it was only then, ^'out of an
abundance of caution," that the trial judge decided to have Dr.

Tillinger evaluate Petitioner. (Id. at 171-72.) Dr. Tillinger
concluded

Petitioner

was

competent

to

stand

trial

and

also

suggested a medication adjustment. (Doc. 50, Attach. 1 at 197.)

Regarding the medication adjustment, trial counsel specifically
relayed that it had helped Petitioner sleep, but it made him want
to continue sleeping, so he ^^refused the new medication this
morning[.]" (Doc. 31, Attach. 11 at 5.) Trial counsel were in
agreement with Petitioner's decision because they did not want him
sleeping during trial and were concerned that he be clear-minded
and able to ^'appreciate and understand [what was] going on." (Id.
at 5-6.)

190

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 191 of 193

Whatever issue Petitioner may take with the scope of the

evaluations

by

Dr.

Grant

and

Dr.

Tillinger,

both

evaluated

Petitioner, and neither alerted trial counsel or the Court to a

competency issue or that further evaluation was needed to make a
reliable

assessment.

This

remains

true

even

considering

the

information Dr. Grant conveyed regarding Petitioner's status to
trial counsel. (Doc. 39, Attach. 9 at 52.) Additionally, Petitioner

argues Dr. Tillinger's report was done in haste without sufficient
background information (Doc. 109 at 163), but Dr. Tillinger's
evaluation was conducted ^^out of an abundance of caution" after

Dr. Grant, who was familiar with Petitioner's background, assessed
Petitioner.

Further,

Petitioner's

speculation

that

a

more

comprehensive psychological evaluation could have found that he
was incompetent to stand trial does not constitute positive,
unequivocal facts that generate a legitimate doubt that Petitioner
was incompetent to stand trial. Card v. Singletary, 981 F.2d 481,
484 (11th Cir. 1992). Moreover, trial counsel informed the Court

that they approved of Petitioner's refusal of the medication,

specifically referring to concerns regarding Petitioner's ability
to understand the trial proceedings. (Doc. 31, Attach. 11 at 56.)

In summary, the record shows that Petitioner effectively
consulted with his counsel during trial and had an understanding
of the

proceedings. Accordingly, because Petitioner failed to
191

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 192 of 193

carry his heavy burden of establishing a legitimate doubt as to
his competency at trial, the Court DENIES Petitioner's challenge
based on a claim of substantive incompetency and request for an
evidentiary hearing.
Ill. Certificate of Appealability

Federal Rule of Appellate Procedure 22(b)(1) states in part:

^'In a habeas corpus proceeding in which the detention complained
of arises from process issued by a state court, . . . the applicant
cannot take an appeal unless a circuit justice or a circuit or
district judge issues a certificate of appealability under 28
U.S.C. § 2253(c)." Pursuant to 28 U.S.C. § 2253(c)(2), a district

judge

should

issue

a

COA ''only if the

applicant

has

made

a

substantial showing of the denial of a constitutional right." The

United States Supreme Court has stated that "[t]he COA inquiry
. . . is not coextensive with a merits analysis." Buck v. Davis,
580 U.S. ICQ, 115, 137 S. Ct. 759, 773, 197 L. Ed. 2d 1 (2017).

Rather, ^"[aJt the COA stage, the only question is whether the

applicant has shown that 'jurists of reason could disagree with
the district court's resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.' " Id. (quoting MillerEl V. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034, 154 L.
Ed. 2d 931 (2003)).

192

Case 4:15-cv-00104-WTM Document 124 Filed 05/22/23 Page 193 of 193

In this case, Petitioner has failed to make a substantial

showing of the denial of a constitutional right with respect to
his ineffective assistance of counsel claims or competency claim.
The Court finds that no jurists could disagree with the Court's
conclusions on the issues presented in any of the claims Petitioner
properly raised. Accordingly, Petitioner is DENIED a COA for any
of his claims.
CONCLUSION

For the foregoing reasons. Petitioner has failed to establish
that he is entitled to relief under 28 U.S.C. § 2254. Accordingly,

his petition for a writ of habeas corpus is DENIED. The Clerk of
Court is DIRECTED to close this case.

SO ORDERED this y^Z^day of May 2023.
WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

193