Stinski v. Sellers et al
Filing
72
ORDER Denying Petitioner's 1 Petition for Writ of Habeas Corpus. The Court Denies Petitioner a Certificate of Appealability. The Court Grants Respondent's 70 MOTION for Page Extension, and Petitioner's 68 First MOTION for Leave to File Excess Pages. The Court deems the parties' briefs to be filed timely and in compliance with the Court's page limit. The Clerk of Court is Directed to close this case. Signed by District Judge R. Stan Baker on 12/15/2021. (ca)
Case 4:18-cv-00066-RSB Document 72 Filed 12/15/21 Page 1 of 79
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DARRYL SCOTT STINSKI,
Petitioner,
CIVIL ACTION NO.: 4:18-cv-66
v.
WARDEN BENJAMIN FORD,
Respondent.
ORDER
In 2007, following a trial in the Superior Court of Chatham County, a jury convicted
Petitioner Darryl Stinski of two counts of malice murder, two counts of felony murder, and other
related crimes for the murders of Susan Pittman and her thirteen-year-old daughter, Kimberly
Pittman. (Doc. 7-11, pp. 34–37.) Petitioner was eighteen years and nine months old when he
committed these crimes on April 10, 2002. (Doc. 27-20, p. 88.) Petitioner was sentenced to death
on June 13, 2007. (Doc. 8-1, pp. 210–15.) After the completion of his direct appeal and state
habeas corpus proceedings, Petitioner filed his Petition for Writ of Habeas Corpus in this Court,
pursuant to 28 U.S.C. § 2254, challenging his conviction and death sentence. (Doc. 1.) After
careful consideration of the parties’ briefings, (docs. 65, 69, 71), the Court DENIES Petitioner’s
Petition for Writ of Habeas Corpus. (Doc. 1.) 1
BACKGROUND
I.
Factual Background
The Supreme Court of Georgia set forth the facts of this case as follows:
The Court GRANTS Respondent’s Motion for Page Extension, (doc. 68), and GRANTS Petitioner’s
Motion to Extend Time and to Exceed Page Limitation, (doc. 70). The Court deems the parties’ briefs to
be filed timely and in compliance with the Court’s page limit.
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Darryl Stinski and Dorian O’Kelley engaged in a crime spree that spanned April
10–12, 2002. On the night of April 10, two police officers observed two men
dressed in black clothing in a convenience store. Later, the officers responded to
two separate calls regarding the sounding of a burglar alarm at a nearby home and
the officers returned to the store after responding to each call. Then, at
approximately 5:00 a.m. on April 11, the officers noticed while leaving the store
that “the sky was lit up.” The officers discovered the victims’ house fully engulfed
in flames. As one of the officers moved the patrol vehicle to block traffic in
preparation for the arrival of emergency vehicles, his headlights illuminated a
wooded area where he observed the same two men that he and his partner had
observed earlier in the convenience store. O’Kelley, as the neighbor living across
the street from the burned house, gave an interview to a local television station.
The officer saw the interview on television and identified O’Kelley as being one of
the men he had seen in the convenience store and near the fire. The officer later
identified both Stinski and O’Kelley in court.
Stinski and O’Kelley left items they had stolen with friends who lived nearby. The
friends handed those items over to the police. Testimony showed that, before their
arrest, O’Kelley had bragged about raping a girl and keeping one of her teeth as a
memento and Stinski had laughed when he saw O’Kelley being interviewed on the
news in front of the victims’ house.
Stinski gave two videotaped interviews with investigators after his arrest, the
second of which was suppressed on his motion. In the interview the jury heard,
Stinski confessed to participating in the crime spree described below, which began
with burglarizing a home and leaving when a motion detector in this first home set
off an alarm. After their botched burglary of the first home, Stinski and O’Kelley
turned off the electricity to the home of Susan Pittman and her 13–year–old
daughter, Kimberly Pittman, and entered as both victims slept. O’Kelley took a
walking cane and began beating Susan Pittman, while Stinski held a large
flashlight. Stinski beat Susan Pittman with the flashlight and then left the room to
subdue Kimberly Pittman, who had awakened to her mother’s screams. O’Kelley
then beat Susan Pittman with a lamp and kicked her. At some point, Susan Pittman
was also stabbed three to four times in the chest and abdomen. Stinski took
Kimberly Pittman upstairs so she would not continue to hear her mother’s screams.
Susan Pittman eventually died from her attack. Stinski and O’Kelley then brought
Kimberly Pittman back downstairs, drank beverages, and discussed “tak[ing] care
of” her. Stinski took Kimberly Pittman back upstairs and bound and gagged her.
As Stinski rummaged through the house downstairs, O’Kelley raped Kimberly
Pittman. Stinski and O’Kelley then agreed that Stinski would begin beating
Kimberly Pittman with a baseball bat when O’Kelley said a particular word. On
cue, Stinski hit Kimberly Pittman in the head with the bat as she knelt on the floor,
bloody from the rape and with her hands bound. O’Kelley then slit Kimberly
Pittman’s throat with a knife but she remained alive. Stinski went downstairs and
came back upstairs when O’Kelley called him. Stinski then hit Kimberly Pittman
in her knee with the bat as O’Kelley tried to suffocate her. O’Kelley then took
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another knife and stabbed her in the torso and legs. O’Kelley kicked her and threw
objects at her head, but her groans indicated that she was still alive. Stinski and
O’Kelley then set fires throughout the house and went to O’Kelley’s house across
the street to watch the fire. Kimberly Pittman died of smoke inhalation before the
fire fully consumed the house. Later, in the early morning hours of April 12, Stinski
and O’Kelley broke into numerous vehicles in the neighborhood.
Stinski v. State, 691 S.E.2d 854, 862–63 (Ga. 2010).
II.
Procedural History
A.
Trial and Appeal
On June 5, 2002, a Chatham County grand jury indicted Petitioner on two counts of malice
murder, two counts of burglary, two counts of arson in the first degree, five counts of entering an
automobile, one count of cruelty to children in the first degree, and one count of possession of a
controlled substance with intent to distribute. (Doc. 6-1, pp. 50–54); see also Stinski v. State, 691
S.E.2d at 862 n.1. Shortly thereafter, the prosecution filed a notice of intent to seek the death
penalty. Stinski v. State, 691 S.E.2d at 862 n.1. Attorneys Michael Schiavone, Steven Sparger,
and Willie Yancy were appointed to represent Petitioner with Schiavone serving as lead counsel
and Sparger in charge of mitigation. (Doc. 27-20, pp. 8–9.)
Petitioner’s trial began with jury selection on May 24, 2007. Stinski v. State, 691 S.E.2d
at 862 n.1. On June 8, 2007, after the conclusion of the guilt phase of trial, a jury found Petitioner
guilty on all counts and on two lesser-included counts of felony murder. (Doc. 7-11, pp. 34–37.)
Shortly after the guilt phase of trial concluded, the sentencing phase of trial began. (Doc. 10-8,
pp. 145, 167–68.) Petitioner’s trial counsel called twenty-six witnesses to testify during the
sentencing phase of trial, including Petitioner’s maternal grandmother, mitigation specialist Dale
Davis, and Dr. Jane Weilenman, a psychologist. 2 (Doc. 27-20, pp. 43–47, 61–68.)
Petitioner’s trial counsel also called, among others, Petitioner’s biological mother and father, stepmother,
step-aunt, and stepsister, as well as Petitioner’s former pastor, a social worker who had monitored Petitioner
following a shoplifting conviction, a psychiatric nurse who treated Petitioner from the ages of twelve to
2
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Petitioner’s maternal grandmother, Sharlene Riley, generally testified about Petitioner’s
childhood and family history. (Id. at pp. 43–44; doc. 10-9, pp. 28–64.) Concerning Petitioner’s
childhood, Riley testified about Petitioner’s frequent moves as a child. (See doc. 27-20, pp. 43–
44.) Riley testified that, at a young age, Petitioner lived with his biological parents, his older
stepbrother Tony Raby, and his other older brother Donald Stinski. (Doc. 10-9, pp. 37–38.) Riley
stated that the family moved frequently before moving to South Carolina when Petitioner was
three. (Id.; doc. 27-20, pp. 43–44.) While in South Carolina, Petitioner’s parents filed for divorce.
(Doc. 27-20, p. 43.) Riley further testified that Petitioner’s mother remarried Frank Sutton, a police
officer in South Carolina, in August 1991. (Id.; doc. 10-9, p. 42.) At the request of Petitioner’s
mother, Riley cared for Petitioner and his siblings for a few months in 1994 before Petitioner, his
mother, and his siblings moved to New Mexico following Petitioner’s mother and stepfather
splitting up. (Doc. 27-20, p. 44; doc. 10-9, pp. 41, 45–46.) Petitioner’s mother then moved the
family back to South Carolina after reconciling with the stepfather. (Doc. 27-20, p. 44; doc. 10-9,
pp. 52–53.) In August 1995, Petitioner’s mother sent Petitioner to live with his biological father,
stepmother, and stepsister in Wisconsin, where Petitioner remained until he was seventeen. (Doc.
27-20, p. 44; doc. 10-9, pp. 54–57, 236.) After living in Wisconsin, Petitioner moved back to
South Carolina and stayed with his mother and stepfather. (Doc. 27-20, p. 44; doc. 10-9, p. 58.)
However, Petitioner’s stepfather kicked him out of the house, and Petitioner moved to Savannah
to live with his older brother Donald, who also subsequently kicked Petitioner out of his home.
(Doc. 27-20, p. 44; doc. 10-9, p. 58.) Petitioner then lived with whoever would take him in. (Doc.
27-20, p. 44; doc. 10-9, pp. 58–59.)
fourteen, two of Petitioner’s grade-school teachers, and several of Petitioner’s former schoolmates and
friends. (Doc. 27-20, pp. 43–68.)
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Regarding Petitioner’s family history, Riley testified that Petitioner’s family struggled with
alcoholism and abuse dating back to his great-grandfather. (See doc. 10-9, pp. 30–38, 44, 62–63.)
Riley testified that Petitioner’s father “drank heavily” and was “very abusive” and neglectful. (Id.
at p. 34.) Riley specifically recalled multiple instances of Petitioner’s father’s neglect, including
an instance in which a car struck Petitioner in the street when Petitioner’s father was supposed to
be watching Petitioner but was instead away from the home drinking alcohol with a friend. (Id. at
pp. 34–36.) Moreover, Riley stated that Petitioner’s mother divorced his father because “[s]he got
tired of hi[m] being drunk and passing out on the floor with a gun or knife in his hand.” (Id. at p.
38.) Concerning Petitioner’s stepfather, Riley testified that he was a “heavy drinker[]” and
“control freak.” (Id. at pp. 44, 63.)
Dale Davis also testified during the sentencing phase of trial “for the purpose of introducing
several volumes of records relating to Petitioner.” (Doc. 27-20, p. 45.) Petitioner’s trial counsel
retained Davis as a mitigation specialist for Petitioner’s trial. (Id.) According to Davis, her role
in the case was to “take [Petitioner] and find out every single thing [she could] find out about [him]
from [his] birth, even pre-birth, up until [the crime].” (Doc. 10-9, p. 78.) To fulfill this role, Davis
interviewed “forty or more” people, prepared an extensive social history on Petitioner, and worked
approximately 432 hours on Petitioner’s case. (Id. at pp. 78–80, 83–89, 95–96, 101–02, 105–10,
112–13, 125; doc. 27-20, pp. 31, 45–47.) At the time of Petitioner’s trial, Davis had worked on
“approximately thirty death penalty cases [and] [h]undreds of other . . . cases” as a mitigation
expert. (Doc. 10-9, pp. 76–77.) Through Davis, Petitioner’s trial counsel introduced many records
and documents relating to Petitioner’s family, history, and childhood, including birth records,
prenatal and delivery records, hospital records, school records, social services and family court
records, counseling records, medical and mental health records from Chatham County Detention
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Center, divorce records from Petitioner’s parents, mental health records regarding Petitioner’s
brother, marriage records for Petitioner’s mother and stepfather, and a police report regarding
Petitioner’s stepfather. (Doc. 10-9, pp. 78–80, 83–89, 95–96, 101–02, 105–10, 112–13; see also
doc. 27-20, p. 45.)
Trial counsel also elicited testimony from Davis regarding information contained in the
records she gathered as part of her investigation. (See doc. 27-20, p. 45.) Regarding Petitioner’s
childhood, Davis testified extensively about the abuse, neglect, and alcoholism in Petitioner’s
family. (Id. at p. 46.) Davis testified that the divorce records indicated that Petitioner’s mother
filed for divorce from his biological father because of a “pattern and practice of alcohol and/or
substance abuse.” (Doc. 10-9, p. 109.) Davis further testified that Petitioner’s father suffered from
a “real serious drinking problem.” (Id.) Concerning Petitioner’s stepfather, Davis testified about
the information contained in a police report about an incident involving the stepfather. (Id. at pp.
111–12.) According to Davis, the police report concerned a domestic violence and simple assault
incident in which Petitioner’s stepfather shoved Petitioner’s older brother Donald while under the
influence of alcohol. (Id.) The police report also noted that Petitioner’s mother declined to press
charges. (Id. at p. 111.)
Furthermore, Davis testified about Petitioner’s life in Wisconsin after he moved there to
live with his father, stepmother, and stepsister. Petitioner’s father and stepmother were strict
parents who harshly punished him for not meeting their expectations. (Id. at pp. 98–100.) Davis
also testified about Petitioner’s father and stepmother’s favoritism towards his stepsister. (Id. at
p. 172; see also doc. 27-20, p. 46.) School records showed that Petitioner took an anti-depressant
medication and Ritalin to treat ADHD but that he shared the Ritalin with other students to make
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friends. (Doc. 10-9, pp. 89, 100–01.) During his time in Wisconsin, Petitioner had minimal
contact with his mother, who still lived in South Carolina. (Id. at p. 105.)
Regarding Petitioner’s mental health, Davis testified that Petitioner suffered from ADHD,
depression, post-traumatic stress disorder, and a psychotic disorder, for which Petitioner received
medication. (Id. at pp. 106–08, 170.) Davis also testified as to the mental health records of
Petitioner’s brother. (Id. at p. 113.) Davis stated that these records showed a “history of alcohol
abuse and mental illness in [Petitioner’s] family.” (Id.) Indeed, Davis testified that “depression
ran through [Petitioner’s family]” and that “[t]here were a number of suicides and suicide attempts”
within Petitioner’s family. (Id. at p. 124; see also doc. 27-20, p. 47.)
Dr. Weilenman was the final witness Petitioner’s trial counsel called at the sentencing
phase of trial. 3
(Doc. 27-20, p. 61.) Trial counsel retained Dr. Weilenman to conduct a
psychological evaluation of Petitioner. (Doc. 26-19, p. 150.) To this end, Dr. Weilenman “was
part of the team that got some of the . . . mitigation information from . . . Davis,” and “through
that, was able to do interviews, back-up interviews, [and] talk to the family members in preparation
for . . . trial.” (Doc. 10-11, p. 6.) As part of her role in Petitioner’s case, Dr. Weilenman met with
Petitioner five times, interviewed him for approximately ten to fifteen hours, and reviewed the
documents Davis gathered as part of the mitigation investigation. (Id. at pp. 6–7; see also doc. 2720, p. 61.) In creating a social history for Petitioner, Dr. Weilenman “focus[ed] on [Petitioner’s]
Dr. Jane Weilenman is a clinical psychologist with a master’s degree in school psychology from City
College in New York and a Doctor of Philosophy degree from the California School of Professional
Psychology. (Doc. 10-11, p. 3.) At the time Dr. Weilenman testified at the sentencing phase of trial,
Weilenman served as the clinical director of Coastal State Prison’s mental health unit and maintained a
private practice as a clinical psychologist. (Id. at pp. 4–5.)
3
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entire life,” including “filling in all the blanks of the family history” and “focus[ing] on each family
member . . . to find out . . . their impact . . . on [Petitioner’s] life.” 4 (Doc. 10-11, pp. 7–8.)
As the state habeas court found, Dr. Weilenman testified about, among other things,
Petitioner’s background, including issues of neglect, abandonment, and abuse. (Doc. 27-20, p.
61.) Specific to Petitioner’s family, Dr. Weilenman testified that they suffered from “global drug
and alcohol abuse” as well as “mental health issues.” (Doc. 10-11, p. 8.) Dr. Weilenman
specifically noted that Petitioner’s extended family suffered multiple suicides, that there was
significant “alcohol abuse” during Petitioner’s early childhood, and that there was an “intense
conflict in [Petitioner’s] home” between his parents. (Id. at pp. 8, 11.) Dr. Weilenman further
testified that Petitioner’s stepfather was a “heavy drinker,” abused alcohol, and physically abused
Petitioner. (Id. at pp. 13, 17.) For example, Petitioner’s stepfather frequently paddled Petitioner
with a homemade paddle into which he had drilled holes so there was less resistance. (Id. at p.
19.) Dr. Weilenman further testified about Petitioner’s frequent moves. For example, Dr.
Weilenman highlighted that Petitioner’s stepfather and older brother both kicked him out of their
homes and that Petitioner lived in twelve different places in the three months leading up to his
crimes. (Id. at pp. 40, 46.)
Based on her evaluation of Petitioner, Dr. Weilenman reached several conclusions. Dr.
Weilenman stated that Petitioner suffered from a “history of instability” due to moving twentyfive times in eighteen years. (Id. at p. 48.) The other “main theme” Dr. Weilenman emphasized
in her testimony was Petitioner’s “history of abandonment by his biological family.” (Id.) Indeed,
Dr. Weilenman stated that the two patterns in Petitioner’s life were “instability” and
“abandonment.” (Id. at p. 50.) Due to these patterns, Dr. Weilenman testified that Petitioner
4
Notably, Dr. Weilenman did not perform a “psychological test” on Petitioner. (Doc. 10-11, p. 67.)
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“wants to be accepted.” (Id. at p. 52.) According to Dr. Weilenman, people like Petitioner will
“sometime[s] exhibit . . . inappropriate conduct” and “don’t really think.” (Id.) Furthermore,
based, in part, on her own interactions with Petitioner, Dr. Weilenman concluded that Petitioner
“was a follower . . . [that] did what he felt to please others.” (Id. at pp. 52–53.)
Dr. Weilenman also testified about Petitioner’s mental health, development, and juvenile
conduct. Specifically, Petitioner suffered from post-traumatic stress disorder, ADHD, and an
“adjustment disorder with depressed features.” (Id. at p. 54.) According to Dr. Weilenman, “one
of the major issues” with ADHD is that it effects one’s “executive functioning” (i.e., “how you
think, how you process information, impulse control, [and] all of those things”). (Id. at p. 55.)
Dr. Weilenman further testified that the development of one’s frontal lobe also impact’s one’s
executive functioning. (Id.) According to Dr. Weilenman, the brain’s frontal lobe, which she
described as the “thinking center,” does not fully develop until the age of twenty-five. (Id.) Thus,
as one gets older, the frontal lobe develops, and therefore, a person “may have better control over
their behaviors [during their] mid-twenties than they did when they were fourteen.” (Id.) When
asked to compare Petitioner’s executive functioning to that of a typical eighteen or nineteen-yearold, Dr. Weilenman stated that a typical eighteen to nineteen-year-old “is developing . . . some
sense of internalizing external values.” (Id. at p. 59.) Dr. Weilenman testified that a typical late
adolescent “[is] forming some sense of identity, who they are, . . . know[s] what their belief systems
are . . . [and] what they stand for, [and possesses] some sense of right and wrong.” (Id.) However,
according to Dr. Weilenman, Petitioner’s instability and abandonment issues delayed his
development of “that internal sense.” (Id. at pp. 59–60.) Dr. Weilenman testified that Petitioner
“was still more into peer pressure than you would have expected at that age” and, considering
Petitioner’s unstable life in the weeks leading up to his crimes, “needed to fit in.” (Id. at pp. 60–
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61.) Indeed, Dr. Weilenman described Petitioner as someone who interacted like a “twelve-yearold,” was “highly vulnerable,” and did not “[know] who he was.” (Id. at p. 56–58.) Furthermore,
Dr. Weilenman stated that Petitioner exhibited “learned helplessness,” whereby he would “do
whatever it took to please [others] . . . to get [them] to like him.” (Id. at p. 57.)
Notably, trial counsel asked Dr. Weilenman, “What happens when you have someone like
that, that meets someone who’s been described as manipulative and even compared to Charles
Manson? What would happen in that sort of situation?” (Id. at pp. 60–61.) Dr. Weilenman
responded:
You have to understand the state of the person at that time. As I said before, he
was trying to find a place to sleep, food to eat. At the time he entered the jail, he
was roughly 140 pounds . . . I asked him why, and it was mainly because he was
eating one meal a day and he was hopping from house to house . . . .
And he’d stay at a house for three days, a house for five days, a house for a week,
but as far as knowing where you were going to be at the time, he had no clue. . . .
[I]t had to be how much his friends would tolerate him staying there, how much
maybe the adults in the home would tolerate him staying here.
So the basic need that all of us have, food, shelter, he was lacking that, so . . ., in
order to survive, he was in a situation and, based on his personality as well, the
follower, that he did what he at that time [sic], listening to this guy, as a follower .
. . and not questioning it. He needed to fit in with that group.
(Id. at pp. 60–61.)
After the sentencing phase, the jury recommended the death sentence for the murders of
Susan and Kimberly Pittman, finding that the existence of nine aggravating circumstances across
the two murders warranted such a sentence:
(1) Petitioner was “engaged in the commission of a burglary” when murdering Susan
Pittman;
(2) the murder of Susan Pittman “was outrageously or wantonly vile, horrible, or inhuman
in that it involved the depravity of mind of” Petitioner;
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(3) the murder of Susan Pittman “was outrageously or wantonly vile, horrible, or inhuman
in that it involved an aggravated battery to the victim before death;”
(4) Petitioner was committing “another capital felony” while murdering Kimberly Pittman;
(5) Petitioner “was engaged in the commission of a burglary” when murdering Kimberly
Pittman;
(6) Petitioner “was engaged in the commission of arson in the first degree” when
murdering Kimberly Pittman;
(7) the murder of Kimberly Pittman “was outrageously or wantonly vile, horrible, or
inhuman in that it involved tortur[ing] . . . the victim before death;”
(8) the murder of Kimberly Pittman “was outrageously or wantonly vile, horrible, or
inhuman in that it involved the depravity of mind of” Petitioner; and
(9) the murder of Kimberly Pittman “was outrageously or wantonly vile, horrible, or
inhuman in that it involved an aggravated battery to the victim before death.”
(Doc. 8-1, pp. 210–13.) In addition to the death sentence, Petitioner was sentenced to a total of
140 years of confinement for his other crimes. (Id. at pp. 214–15.) Petitioner subsequently filed
a motion for a new trial, which was denied. (Doc. 27-20, p. 2.) The Georgia Supreme Court then
affirmed Petitioner’s convictions and death sentence. See Stinski v. State, 691 S.E.2d at 874-75.
B.
State Habeas Petition
On September 12, 2011, Petitioner filed a petition for writ of habeas corpus in the Superior
Court of Butts County, (doc. 11-19), and later amended the petition, (doc. 12-24). In the petition,
Petitioner argued, among other things, that his trial counsel rendered ineffective assistance of
counsel during the sentencing phase of trial and that he is ineligible for the death penalty under
Roper v. Simmons, 543 U.S. 551 (2005), because he was the functional equivalent of an adolescent
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at the time of his crimes. (Doc. 12-24, pp. 9–24, 29–30.) The state habeas court held an evidentiary
hearing in which twenty witnesses testified, including family members, friends, acquaintances,
and medical professionals. (See doc. 27-20, p. 2.) Among friends, family, and acquaintances,
Petitioner called his stepbrother, his former high school principal, and one of his high school
friends as witnesses at the evidentiary hearing. (Doc. 13-18, pp. 15–69; doc. 13-20, pp. 5–40; doc.
13-21, pp. 23–54.) Petitioner’s stepbrother, Tony Raby, testified about growing up with Petitioner
and Petitioner’s biological parents. (Doc. 13-18, pp. 15–69.) Raby generally testified about
Petitioner’s biological father’s alcoholism and their abusive households. (Id. at pp. 22–23, 29–
38.) Petitioner’s former high school principal, Linda Herman, generally testified that Petitioner
left high school several times but “begged” her to let him return to school in the weeks leading up
to the crime. (Doc. 31-20, pp. 14, 19–24.) Petitioner’s high school friend, Sean Proctor, testified
about Petitioner’s struggle to find a place to sleep at night in the weeks leading up to the crimes.
(Doc. 13-21, pp. 31, 33–35, 37–38.) Petitioner’s trial counsel did not call Raby, Herman, or
Proctor as witnesses at the sentencing phase of trial. (See doc. 27-20, pp. 75–77.)
Among medical professionals, Petitioner called a clinical neuropsychologist, a forensic
psychiatrist, and a developmental psychologist. (Doc. 13-20, pp. 84–197; doc. 13-17, pp. 5–169;
doc. 13-21, pp. 56–179.) The clinical neuropsychologist, Dr. Joette James, evaluated Petitioner’s
neurocognitive strengths and weaknesses by conducting a neuropsychological examination of
Petitioner during a six-hour meeting. (Doc. 13-20, p. 93.) As part of this evaluation, Dr. James
conducted ten different tests and evaluated Petitioner’s records. 5 (Id. at pp. 99, 133.) Dr. James
testified that the results of her evaluation indicated that Petitioner suffered from weaknesses in
The tests Dr. James conducted on Petitioner include: the Wechsler Adult Intelligence Scale; the Wide
Range Achievement Test; the Grooved Pegboard; the Wechsler Memory Scale, the Rey-Osterrieth
Complex Figure, the Boston Naming Test, the Deli Kaplan Executive Functioning System, the Wisconsin
Card Sorting Test, the Test of Memory Maligning, and a word choice/effort test. (Doc. 13-20, p. 99.)
5
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particular areas of executive functioning, including working memory, short-term memory,
auditory attention, planning, and organization. (Id. at p. 123.) Dr. James then explained how those
deficits in executive functioning contributed to Petitioner’s actions the night of the crime spree.
(Id. at pp. 154–56.)
The forensic psychiatrist, Dr. Peter Ash, conducted a psychiatric interview with Petitioner
that lasted two and a half hours. (Doc. 13-17, p. 23.) Dr. Ash also relied on Petitioner’s history,
reading documents such as the trial transcript, school records, prison records, mental health
records, Dr. Weilenman’s notes, affidavits of other witnesses, and reports by Dr. James and Dr.
James Garbarino, who also testified at the evidentiary hearing. (Id. at pp. 25–26, 30–41.) Dr.
Ash’s goal in evaluating Petitioner was to “get a sense of who [Petitioner] was [and] how he
thought” and to perform a “general mental status exam to get a sense of how [Petitioner] was
functioning, particularly cognitively and emotionally.” (Id. at p. 23.) Based on his evaluation of
Petitioner, “a couple things” from Petitioner’s history “jumped out” to Dr. Ash, including
Petitioner’s lack of a violent past, his history of “psychological maltreatment,” his constant moves
throughout his childhood, and the “ongoing pattern of rejection.” (Id. at p. 30.) Furthermore, Dr.
Ash determined that Petitioner suffered from various deficiencies in his executive functioning.
(Id. at p. 62.) Ultimately, the heart of Dr. Ash’s testimony at the evidentiary hearing was that
Petitioner was functioning at an “adolescent level” the night of the crime. (Doc. 13-17, pp. 51,
79–82, 86.)
The developmental psychologist, Dr. James Garbarino, read through “all the records
available and the affidavits and all the reports” and conducted a psychological and developmental
interview of Petitioner that lasted two and a half hours. (Doc. 13-21, pp. 69–70.) According to
Dr. Garbarino, the purpose of his interview and testimony was to “help a judge and jury understand
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[Petitioner’s] life.” (Id. at pp. 70–71.) Dr. Garbarino relied heavily on Petitioner’s social history.
(Id. at pp. 72–78, 82–84.) Dr. Garbarino generally testified that Petitioner suffered from “severe
psychological maltreatment.” (Id. at pp. 97–113.) Dr. Garbarino further testified that the
psychological maltreatment “undermined” Petitioner’s development as a child and adolescent. (Id.
at p. 114.) Dr. Garbarino also testified that his “ultimate conclusion” from his analysis was that
Petitioner was, “at the time of the crime, . . . an untreated, traumatized child who inhabited the
body of an 18-year-old boy.” (Id. at p. 145.) Dr. Garbarino further stated that this conclusion
“makes [Petitioner’s] behavior before, and during, much more comprehensible” and “gives a basis
for saying that as a victim of pervasive, chronic psychological treatment,” Petitioner’s ability “to
resist the influence of Dorian O’Kelley was significantly impaired.” (Id.)
After conducting the evidentiary hearing, the Superior Court denied the petition on January
15, 2017. (Doc. 27-20.) Petitioner then filed an Application for Certificate of Probable Cause to
Appeal (“CPC Application”) in the Georgia Supreme Court, (doc. 27-22), which the Georgia
Supreme Court denied, (doc. 27-24).
C.
Federal Habeas Petition
On March 26, 2018, Petitioner filed his Petition for Writ of Habeas Corpus in this Court
pursuant to 28 U.S.C. § 2254. (Doc. 1.) The parties then filed their briefs regarding the issues of
procedural default, cause and prejudice, and the fundamental miscarriage of justice. (Docs. 57,
58, 59.) The Court determined that Petitioner could not brief his ineffective assistance of counsel
claim regarding his trial counsel’s performance during the guilt phase of his trial but that he could
brief the entirety of his claim that he received ineffective assistance of counsel during the
sentencing phase of his trial and his Eighth Amendment claim. (Doc. 60.) Petitioner then filed
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the Brief on the Merits in support of his Petition for Writ of Habeas Corpus. (Doc. 65.)
Respondent filed a Response, (doc. 69), and Petitioner filed a Reply, (doc. 71).
In his Brief, Petitioner asserts two general claims. (Doc. 65.) First, he asserts that his trial
counsel rendered ineffective assistance of counsel at the sentencing phase of his trial in violation
of his Sixth and Fourteenth Amendment rights. (Id. at pp. 87–133.) Specifically, Petitioner asserts
that his trial counsel (1) unreasonably neglected to present available expert mental health
mitigation evidence, including testimonies from experts such as Dr. James, Dr. Ash, and Dr.
Garbarino; (2) unreasonably neglected to obtain testimony from Tony Raby, Linda Herman, and
Sean Proctor; (3) unreasonably presented Dale Davis as a witness and produced her memoranda
and notes of the case to the prosecution; (4) unreasonably failed to rebut the prosecution’s evidence
that Petitioner lacked remorse for his crimes; and (5) unreasonably failed to question jurors during
voir dire about their opinions on the death penalty in cases involving juvenile victims. (Id.)
Petitioner further asserts that his trial counsel’s ineffectiveness prejudiced his defense. (Id. at pp.
121–33.) Next, Petitioner claims that his execution would constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments and the United States Supreme Court’s
decision in Roper v. Simmons, 543 U.S. 551 (2005), because he was the equivalent of a juvenile
when he committed his crimes. (Doc. 65, pp. 133–150.)
STANDARD OF REVIEW
Generally, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “bars
federal courts from granting habeas relief to a state habeas petitioner on a claim that was
adjudicated on the merits in state court.” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248,
1258 (11th Cir. 2016) (citing 28 U.S.C. § 2554(d)). However, 28 U.S.C. § 2254(d) provides two
exceptions to that general rule. Under Section 2254(d), a federal court may grant habeas relief to
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a state habeas petitioner on a claim that was adjudicated on the merits if the state court’s
adjudication (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,” 28 U.S.C. § 2254(d)(1); 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)(2).
The “clearly established” prong under Section 2554(d)(1) “refers to holdings, as opposed
to the dicta,” of the United States Supreme Court’s decisions at the “time of the relevant state court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000)). “‘Contrary to’ means the state court
applied ‘a rule different from the governing law set forth in [Supreme Court] cases, or [] it
decide[d] a case differently than [the Supreme Court] ha[s] done on a set of materially
indistinguishable facts.’” Daniel, at 1258–59 (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)).
The “unreasonable application” inquiry asks “whether the state court’s application of clearly
established federal law was objectively unreasonable,” Williams v. Taylor, 529 U.S. at 407, which
means more than “just incorrect or erroneous,” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
However, the AEDPA does not “prohibit a federal court from finding an application of a principle
unreasonable when it involves a set of facts different from those of the case in which the principle
was announced. The statute recognizes, to the contrary, that even a general standard may be
applied in an unreasonable manner.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (internal
citations and quotations omitted). Furthermore, review under Section 2254(d)(1) is “limited to the
record that was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
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Regarding Section 2254(d)(2), the Court must “evaluat[e] whether a state court’s decision
‘was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Daniel, 822 F.3d at 1259 (quoting 28 U.S.C. § 2254(d)(2)). When doing
so, the Court “may not characterize . . . state-court factual determinations as unreasonable merely
because [the Court] would have reached a different conclusion in the first instance.” Brumfield v.
Cain, 576 U.S. 305, 313–14 (2015) (quotations omitted). “Section 2254(d)(2) . . . requires that
federal courts afford state court factual determinations ‘substantial deference.’” Daniel, 822 F.3d
at 1259 (quoting Brumfield, 576 U.S. at 314). “If ‘[r]easonable minds reviewing the record might
disagree about’ the state court factfinding in question, ‘on habeas review that does not suffice to
supersede’ the state court’s factual determination.” Id. (quoting Rice v. Collins, 546 U.S. 333,
341–42 (2006)). The Court “presume[s] findings of fact made by state courts are correct, unless a
petitioner rebuts that presumption by clear and convincing evidence.” Id. (citing 28 U.S.C. §
2254(e)(1)). “When considering a determination of a mixed question of law and fact, such as a
claim of ineffective assistance of counsel, the statutory presumption of correctness applies to only
the underlying factual determinations.” Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644, 651
(11th Cir. 2014).
This is a “difficult to meet and highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at
181 (internal quotations and citations omitted). Indeed, the AEDPA “erects a formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court.” White v.
Wheeler, 577 U.S. 73, 77 (2015) (per curiam). However, “[e]ven in the context of federal habeas,
deference does not imply abandonment or abdication of judicial review.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003). “Deference does not by definition preclude relief.” Id. “[I]f a convicted
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state criminal defendant can show a federal habeas court that his conviction rests upon a violation
of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a
new sentence, or release.” Trevino v. Thaler, 569 U.S. 413, 421 (2013).
DISCUSSION
Petitioner brings two general claims. (Docs 1, 65.) First, he asserts that his trial counsel
rendered ineffective assistance of counsel at the sentencing phase of his trial in violation of his
Sixth and Fourteenth Amendment rights. (Doc. 65, pp. 87–133.) Next, Petitioner claims that his
execution would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments. (Id. at pp. 133–150.) The Courts addresses each claim in turn.
I.
Ineffective Assistance of Counsel at the Sentencing Phase of Trial
The United States Supreme Court explained the standard for analyzing ineffective
assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a
claim of ineffective assistance of counsel under Strickland, a petitioner must demonstrate (1) his
counsel’s performance was deficient, i.e., the performance fell below an objective standard of
reasonableness, and (2) he suffered prejudice as a result of that deficient performance. Id. at 687–
88. “Unless a defendant makes both showings [of the two-part test], it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process that renders the
result unreliable.” Id. at 687. Indeed, “[i]f a petitioner cannot satisfy one prong, we need not
review the other prong.” Duhart v. United States, 556 F. App’x 897, 898 (11th Cir. 2014) (citing
Strickland, 466 U.S. at 697).
The deficient performance requirement concerns “whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 58
(1985) (internal quotations omitted). “There is a strong presumption that counsel’s conduct fell
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within the range of reasonable professional assistance.” Davis v. United States, 404 F. App’x 336,
337 (11th Cir. 2010) (per curiam) (citing Strickland, 466 U.S. at 689); see also Jenkins v. Comm’r,
Ala. Dep’t of Corr., 963 F.3d 1248, 1264 (11th Cir. 2020) (“[R]eview of counsel’s actions is
‘highly deferential’ and ‘a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’”) (quoting Strickland, 466 U.S. at
689). “It is petitioner’s burden to establish that counsel performed outside the wide range of
reasonable professional assistance by making errors so serious that [counsel] failed to function as
the kind of counsel guaranteed by the Sixth Amendment.” LeCroy v. United States, 739 F.3d
1297, 1312 (11th Cir. 2014) (alteration in original) (internal quotations omitted). “[A] court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. Furthermore, retrospective judicial scrutiny of counsel’s performance “must be
highly deferential” and must “eliminate the distorting effects of hindsight.” Id. at 689. “In
evaluating performance, ‘counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.’” LeCroy, 739
F.3d at 1312 (quoting Strickland, 466 U.S. at 690).
To show prejudice, a petitioner must “establish a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
(internal quotations omitted); see id. at pp. 1312-13 (“The prejudice prong requires a petitioner to
demonstrate that seriously deficient performance of his attorney prejudiced the defense.”). A
reasonable probability of a different result “is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. Furthermore, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
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Strickland created a “high bar” for petitioners to satisfy. Padilla v. Kentucky, 559 U.S.
356, 371 (2010). This is especially true where, as here, the petitioner must satisfy both Strickland
and Section 2254(d)’s “highly deferential” standards of review. Harrington, 562 U.S. at 105.
Indeed, “[t]he standards created by Strickland and [Section] 2554(d) are both highly deferential
and when the two apply in tandem, review is doubly so.” Id. Furthermore, where both Strickland
and Section 2254(d) apply, “the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. As the Eleventh Circuit Court of Appeals clarified,
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
deference—this 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 (11th Cir. 2010) (internal quotations, alterations, and
citations omitted).
Petitioner asserts that his trial counsel’s performance during the sentencing phase of his
trial was deficient because counsel (1) unreasonably neglected to present available expert mental
health mitigation evidence, including testimonies from experts such as Dr. James, Dr. Ash, and
Dr. Garbarino; (2) unreasonably neglected to obtain testimony from Tony Raby, Linda Herman,
and Sean Proctor; (3) unreasonably presented Dale Davis as a witness and produced her
memoranda and notes of the case to the prosecution; (4) unreasonably failed to rebut the
prosecution’s evidence that Petitioner lacked remorse for his crimes; and (5) unreasonably failed
to question jurors during voir dire about their opinions on the death penalty in cases involving
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juvenile victims. (Doc. 65, pp. 87–121.) The Court addresses each of Petitioner’s arguments in
turn.
A.
Failure to Present Additional Expert Testimony
1.
Ineffectiveness
Petitioner first argues that his trial counsel’s performance was ineffective because they
failed to present testimony from experts like Dr. James, Dr. Ash, and Dr. Garbarino. (Id. at pp.
96–97.) Specifically, Petitioner asserts that trial counsel should have: (1) provided testimony
based on neuropsychological testing that explained that Petitioner’s executive functioning
deficiencies were more pronounced than a typical eighteen-year old’s and compromised his ability
“to extricate himself from and adapt to the situation as it developed in the Pittman home;” (2)
provided testimony from a clinical psychiatrist explaining that Petitioner was functioning as an
adolescent and was, therefore, less culpable for his crimes than an adult because of his
“impulsivity, susceptibility to peer pressure and his otherwise nonviolent nature;” and (3) provided
testimony from a developmental psychologist explaining “how the severe psychological
maltreatment [Petitioner] suffered impaired his development and his ability to resist Dorian
O’Kelley.” (Id. at p. 97.)
The state habeas court rejected Petitioner’s claim, stating:
It is true trial counsel did not present the type of scientific evidence offered by
Petitioner in this proceeding to “connect the dots” between Petitioner’s conduct and
his adolescence . . . . Nonetheless, Petitioner’s trial attorneys effectively presented
much of the same factual evidence urged by Petitioner pertaining to Petitioner’s life
circumstances, immaturity, susceptibility to influence, and developmental
deficiency. While Petitioner’s scientific evidence was persuasive, much of the
subject matter raised by Petitioner’s habeas witnesses was cumulative of the
testimony actually presented at Petitioner’s trial. The court finds that the extensive
evidenced presented by trial counsel in mitigation more than adequately addressed
the subject matter raised by Petitioner’s witnesses in this action. . . . Petitioner has
not demonstrated prejudice by proving that the outcome would have been different
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had counsel approached the case as now urged by Petitioner, especially considering
the aggravating circumstances presented in this case.
(Doc. 27-20, p. 5; see also id. at pp. 35–39.)
Petitioner asserts that the state habeas court’s ruling is unreasonable because (1) “it
overlooks the testimony confirmed by contemporaneous writings that, at least by December 2004,
it was clear to [Petitioner’s] defense team . . . that the mitigation case required expertise that Dr.
Weilenman did not possess,” and (2) “the implicit underlying assumption—that the testimony
provided by Dr. Weilenman at trial served the same or a similar purpose to the testimony provided
by Drs. James, Ash and Garbarino at the state court hearing—is irreconcilable with the state court’s
finding that ‘trial counsel did not present the type of scientific evidence offered by Petitioner in
this proceeding to “connect the dots” between Petitioner’s conduct and his adolescence.’” (Doc.
65, pp. 98–99 (quoting doc. 27-20, p. 5).)
The Court concludes that the state habeas court reasonably determined that trial counsel
was not deficient for failing to provide testimony from experts such as Dr. James, Dr. Ash, and
Dr. Garbarino during the sentencing phase of trial. “Counsel representing a capital defendant must
conduct an adequate background investigation, but it need not be exhaustive.” Raulerson v.
Warden, 928 F.3d 987, 997 (11th Cir. 2019). Indeed, “[t]he scope of counsel’s investigation, like
all other actions undertaken by counsel, need only be objectively reasonable under the
circumstances to satisfy constitutional demands.” Gissendaner v. Seaboldt, 735 F.3d 1311, 1322
(11th Cir. 2013). Moreover, the Supreme Court of the United States has held that trial counsel’s
investigation is not deficient “when counsel gather[s] a substantial amount of information and then
ma[kes] a reasonable decision not to pursue additional sources.” Porter v. McCollum, 558 U.S.
30, 40 (2009) (summarizing the holding in Bobby v. Van Hook, 558 U.S. 4, 9–12 (2009)).
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“To determine whether trial counsel should have done something more in their
investigation,” the Court must first “look at what the lawyer[] did in fact.” Raulerson, 928 F.3d at
997 (internal quotations omitted). Here, trial counsel appears to have conducted an extensive
mitigation investigation and hired two experts for the sentencing phase in this case: Davis, as the
mitigation expert, and Dr. Weilenman, as a clinical psychologist. (See doc. 27-20, pp. 30, 35.) In
her role as the mitigation expert, Davis worked approximately 432 hours to “find out every single
thing” she could about Petitioner, from “pre-birth[] up until [the crime].” (Doc. 10-9, p. 78.) Davis
interviewed more than forty people, including Petitioner’s family, friends, pastor, psychiatrist,
teachers, and acquaintances, traveled to Wisconsin, and consulted with trial counsel numerous
times. (Id. at pp. 78–80, 83–89, 95–96, 101–02, 105–10, 112–13, 125; doc. 27-20, pp. 45–47.)
Davis also investigated and procured many records and documents pertaining to Petitioner’s
childhood, education, and health, including birth records, prenatal and delivery records, hospital
records, school records, social services and family court records, counseling records, medical and
mental health records from Chatham County Detention Center, divorce records from Petitioner’s
parents, mental health records regarding Petitioner’s brother, marriage records for Petitioner’s
mother and stepfather, and a police report regarding Petitioner’s stepfather. (Doc. 10-9, pp. 78–
80, 83–89, 95–96, 101–02, 105–10, 112–13; see also doc. 27-20, p. 45.)
Dr. Weilenman, in her role as clinical psychologist, performed a psychological evaluation
on Petitioner. (Doc. 26-19, p. 150.) To perform this evaluation, Dr. Weilenman met with
Petitioner five times for approximately ten to fifteen hours total. (Doc. 10-11, pp. 6–7; see also
doc. 27-20, p. 61.) Dr. Weilenman also reviewed the documents, records, and interview notes
procured by Davis during her investigation and re-interviewed other witnesses. (See doc. 10-11,
pp. 6–7; doc. 27-20, p. 61; doc. 26-19, p. 150.) To form Petitioner’s social history, Dr. Weilenman
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“focus[ed] on [Petitioner’s] entire life,” including “filling in all the blanks of [his] family history”
and “focus[ing] on each family member . . . to find out . . . their impact . . . on his life.” (Doc. 1011, pp. 7–8.) Like Davis, Dr. Weilenman had experience with death penalty cases, having worked
on two Georgia death penalty cases, performed work for the Department of Juvenile Justice, and
attended annual death penalty seminars. (Doc. 27-20, p. 35; see also doc. 24-12, p. 72.) Dr.
Weilenman crafted a report that highlighted much of the neglect, abuse, and trauma Petitioner
suffered during his childhood and adolescent years. (Doc. 26-19, pp. 150–52.) Dr. Weilenman
specifically described Petitioner’s lack of “moral reasoning and risk assessment” and noted that
“[a]t the time of the crimes, due to his age and developmental stage, [Petitioner] demonstrated a
pattern of poor insight, and decision-making skills.” (Id. at pp. 151–52.) Dr. Weilenman also
noted Petitioner’s “limited ability to restrain impulses” and failure to “consider an alternative
course of action.” (Id. at p. 151.) Dr. Weilenman’s psychological evaluation also reveals that she
consulted with trial counsel and Davis on at least five occasions. (Id. at p. 150.)
Given the extensive work by Davis as a mitigation specialist and Dr. Weilenman as the
retained clinical psychologist, this case is distinguishable from other cases in which trial counsel
was deemed to have inadequately investigated a petitioner’s background for mitigation purposes.
See, e.g., Williams v. Taylor, 529 U.S. at 369–70, 395 (finding an unreasonable mitigation
investigation where trial counsel “did not begin to prepare for [the sentencing] phase . . . until a
week before the trial,” called witnesses who testified only generally that petitioner was a “nice
boy,” and failed to seek prison records or the “extensive records” that described petitioner’s
“nightmarish childhood”); Porter, 558 U.S. at 40 (finding an unreasonable mitigation investigation
where trial counsel had “one short meeting” with petitioner regarding the sentencing phase and
failed to obtain “any of [petitioner’s] school, medical, or military service records or interview any
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members of [petitioner’s] family”); Hardwick v. Sec’y, Fla. Dep’t of Corr., 803 F.3d 541, 553
(11th Cir. 2015) (finding an unreasonable mitigation investigation where counsel (1) “failed to
obtain any of [petitioner’s] readily available life-history records, such as his school, medical,
psychiatric, foster care, juvenile justice, or social-services records,” and (2) “failed to ask any of
[petitioner’s] family members about [petitioner’s] dysfunctional upbringing or extended history of
substance abuse”).
Petitioner attempts to discredit trial counsel’s mitigation investigation by asserting that
“[s]everal red flags” should have alerted trial counsel that it was necessary to retain additional
experts. (Doc. 65, pp. 94–96.) Specifically, Petitioner argues (1) that a “clinical mental status
exam” would have revealed neuropsychological problems and (2) that Petitioner’s history of
psychological trauma, his youth, and Davis’s advice should have placed trial counsel on notice of
the need for additional experts to explain how these factors impacted Petitioner’s actions and
inactions at the time of his crimes. (Id. at pp. 94–95.) However, Petitioner’s argument overlooks
the fact that the state habeas court found that Dr. Weilenman, the expert responsible for performing
the psychological evaluation of Petitioner, did not recommend further testing by additional experts.
(Doc. 27-20, p. 38.) Indeed, Sparger testified that:
If I had been told that testing was needed and it wasn’t testing that [Dr. Weilenman]
was going to perform, I would have said, “Well, who do we need?” and then it
would have been getting the motion, getting the funds to go to the next person. And
that never happened because I was never told . . . by Dr. Weilenman, by Ms. Davis,
or anyone that there was testing [that needed to be done].
(Doc. 13-16, p. 89.) Furthermore, Schiavone testified that he could not recall whether Mr.
Weilenman informed him that Petitioner “needed to have testing done.” (Doc. 13-15, pp. 100–
01.) Given trial counsel’s extensive mitigation investigation and the fact that Dr. Weilenman did
not recommend additional testing (by either herself or another expert), the Court finds that the state
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court reasonably concluded that Petitioner’s trial counsel acted reasonably in not retaining
additional experts such as Dr. James, Dr. Ash, and Dr. Garbarino. See Housel v. Head, 238 F.3d
1289, 1296 (11th Cir. 2001) (finding counsel reasonably forwent additional mental health
investigation where a retained expert did not “offer[] any encouragement to proceed further”); see
also Ward v. Hall, 592 F.3d 1144, 1168 (11th Cir. 2010) (“[E]ven when trial counsel’s
investigation is less complete than collateral counsel’s, trial counsel has not performed deficiently
when a reasonable lawyer could have decided, in the circumstances, not to investigate.”).
While Petitioner highlights Davis’s testimony asserting that she raised the need for a
neuropsychological exam, a single page from Dr. Weilenman’s notes that shows a list of purported
experts and scientific literature, and trial counsel’s impression that Petitioner “seemed young for
his age,” that evidence, at best, reveals contradictory evidence regarding whether Dr. Weilenman
and Sparger discussed the need to retain additional experts to perform testing on Petitioner that
Dr. Weilenman could not perform herself. (Doc. 65, p. 95; doc. 71, pp. 25–26.) Such contradictory
testimony is not enough to overcome the “presumption of correctness” afforded to a “factual
determination made by a state court” under the AEDPA, which requires “clear and convincing
evidence.” Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011); see also
Williams v. Allen, 598 F.3d at 794 (“[W]here 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.”). The fact that Petitioner “later secured a more favorable opinion of an
expert than the opinion of [Dr. Weilenman] does not mean that trial counsel’s failure to obtain that
expert testimony constituted deficient performance.” McClain v. Hall, 552 F.3d 1245, 1253 (11th
Cir. 2008). Based on the foregoing, the Court concludes that the state court reasonably determined
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that trial counsel’s decision not to retain additional experts was supported by “reasonable
professional judgments.” Strickland, 466 U.S. at 690–91.
2.
Prejudice
Furthermore, even if Petitioner showed that trial counsel’s performance was deficient for
not retaining experts such as Drs. James, Ash, and Garbarino, the state habeas court reasonably
determined that Petitioner failed to establish prejudice for that deficiency. Indeed, as the state
habeas court determined, “[w]hile Petitioner’s scientific evidence was persuasive, much of the
subject matter raised by Petitioner’s habeas witnesses was cumulative of the testimony actually
presented at Petitioner’s trial.” (Doc. 27-20, p. 5.) “A petitioner cannot establish that the outcome
of the proceeding would have been different when ‘[t]he “new” evidence largely duplicated the
mitigation evidence at trial.’” Raulerson, 928 F.3d at 999 (quoting Cullen, 563 U.S. at 200).
“Generally, ‘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.’” Ledford v Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 649 (11th
Cir. 2016) (quoting Tanzi, 772 F.3d at 660).
Here, Dr. James, Dr. Ash, and Dr. Garbarino told “a more detailed version of the same
story told at trial” and provided “more or better examples” of the “themes presented to the jury.”
See id. During the sentencing phase, Dr. Weilenman testified extensively about Petitioner’s social
history, a history that included the abuse, trauma, and neglect Petitioner suffered throughout his
life. (Doc. 10-11, pp. 3–84.) Specifically, Dr. Weilenman testified that Petitioner had a “history
of instability” and “abandonment,” which caused Petitioner to become “a follower . . . [and] d[o]
what he felt to please others.” (Id. at pp. 48–52.) Indeed, based on her own conversations with
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Petitioner, Dr. Weilenman concluded that Petitioner was always trying to “please” her. (Id. at p.
53.) Furthermore, Dr. Weilenman testified that people like Petitioner will exhibit “inappropriate
conduct or . . . inappropriate behavior at times” and “don’t really think.” (Id. at p. 52.)
Concerning Dr. Ash and Dr. Garbarino, their testimonies in the state habeas proceeding
did not differ greatly from Dr. Weilenman’s testimony in the sentencing phase of trial. First, their
methods of evaluations were similar. Dr. Weilenman interviewed Petitioner for ten to fifteen hours
over five meetings, reviewed Davis’s mitigation evidence, and conducted interviews with other
witnesses. Both Dr. Ash and Dr. Garbarino formed their opinions by conducting two-and-a-halfhour interviews with Petitioner and reviewing relevant documents in Petitioner’s social history.
(Doc. 13-17, pp. 24–26, 30–41; doc. 13-21, pp. 69–70.) Second, Dr. Ash and Dr. Garbarino simply
provided more detailed, scientific-based explanations of the same conclusions that Dr. Weilenman
reached and testified about during the trial. Indeed, Dr. Weilenman testified about Petitioner’s
mental development, noting that Petitioner suffered from post-traumatic stress disorder, ADHD,
and an adjustment disorder with depressed features. (Doc. 10-11, p. 54.) Dr. Weilenman described
how ADHD effects one’s “executive functioning” (i.e., “how you think, how you process
information, impulse control, [and] all of those things”), which is linked to the development of
one’s frontal lobe in the brain. (Id. at p. 55.) According to Dr. Weilenman, the brain’s frontal
lobe, which she described as the “thinking center,” does not fully develop until the age of twentyfive. (Id.) Thus, as one gets older, the frontal lobe develops, and therefore, a person “may have
better control over their behaviors as a mid-twenties than they did when they were fourteen.” (Id.)
When asked to compare Petitioner’s executive functioning to that of a typical eighteen or nineteenyear-old, Dr. Weilenman stated that a typical eighteen or nineteen-year-old “is developing . . .
some sense of internalizing external values.” (Id. at p. 59.) Dr. Weilenman testified that a typical
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late adolescent “[is] forming some sense of identity . . . know[s] what their belief systems are . . .
[and] what they stand for, [and possesses] some sense of right and wrong.” (Id.) However,
according to Dr. Weilenman, Petitioner’s instability and abandonment issues delayed his
development of “that internal sense.” (Id. at pp. 59–60.) Dr. Weilenman testified that Petitioner
“was still more into peer pressure than you would have expected at that age” and, considering
Petitioner’s unstable life in the weeks leading up to his crimes, “needed to fit in.” (Id. at pp. 60–
61.) At bottom, Weilenman described Petitioner as someone who did not know who he was and
interacted like a “twelve-year-old.” (Id. at pp. 56, 58.)
Through his evaluation, Dr. Ash noticed the “psychological maltreatment” in Petitioner’s
life, including Petitioner’s constant moves throughout his childhood and the “ongoing pattern of
rejection.” (Doc. 13-17, p. 30.) Furthermore, Dr. Ash testified about Petitioner’s deficits in
executive functioning, concluding that Petitioner was functioning at an “adolescent level” the night
of his crimes. (Id. at pp. 51, 79–82, 86.) While Dr. Ash provided more details and scientific
knowledge about the “prefrontal cortex” in the brain and how Petitioner’s executive functioning
was less than “one would expect from the normal person of his age at that time,” (id. at pp. 79–
82), his testimony simply provided a more detailed conclusion of what Dr. Weilenman testified
about during the trial: that the trauma Petitioner suffered during his childhood delayed the
development of his executive functioning and caused him to function at an adolescent level despite
his age of eighteen years old.
Dr. Garbarino also testified about the severe psychological maltreatment Petitioner
suffered during his childhood and adolescent years. (Doc. 13-21, pp. 72–78, 82–84.) According
to Dr. Garbarino, the psychological maltreatment Petitioner suffered “undermined” Petitioner’s
development as a child and adolescent. (Id. at p. 114.) Therefore, at the time of the crime,
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Petitioner was “an untreated, traumatized child . . . inhabit[ing] the body of an 18-year-old boy.”
(Id. at p. 145.) Thus, Petitioner’s ability to “resist the influence of Dorian O’Kelley was
significantly impaired.” (Id.) While Dr. Garbarino seemed to provide a better explanation of how
the trauma Petitioner faced adversely impacted his neuropsychological development and grounded
his testimony in scientific research more so than Dr. Weilenman, that testimony simply arrived at
the same conclusion as Dr. Weilenman.
Indeed, like with Dr. Ash’s testimony, the more
scientifically founded testimony of Dr. Garbarino simply provided a better explanation and more
detail regarding Petitioner’s development: that Petitioner functioned as an adolescent and was
more susceptible to outside influences and peer pressure.
Concerning Dr. James, she evaluated Petitioner’s neurocognitive strengths and weaknesses
using a neuropsychological examination she conducted on Petitioner during a six-hour meeting.
(Doc. 13-20, p. 93.) As part of this evaluation, Dr. James conducted a variety of different tests on
Petitioner. (Id. at pp. 99, 133.) Dr. James testified that based on the results of her evaluation,
Petitioner suffered from weaknesses in particular areas of executive functioning, including
working memory, short-term memory, auditory attention, planning, and organization. (Id. at p.
123.) Dr. James then explained how those deficits in executive functioning contributed to his
actions the night of the crime. (Id. at pp. 154–55.) Like with Dr. Ash and Dr. Garbarino, while
this testimony was more rooted in science and possibly more convincing than Dr. Weilenman’s
testimony, the testimony still just provides a more detailed explanation of what Dr. Weilenman
already testified to during the trial. Indeed, Dr. Weilenman testified that Petitioner suffered from
a lack of development in executive functioning that was caused by the trauma and abuse Petitioner
suffered during his childhood and adolescent years.
As the Eleventh Circuit stated in Dallas v. Warden,
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In each of the key Supreme Court cases finding prejudice as a result of counsel’s
failure to offer mitigating evidence, the disparity between what was presented at
trial and what was offered collaterally was vast. In other words, the balance
between the aggravating and mitigating evidence at trial and in postconviction
proceedings shifted enormously, so much so as to have profoundly altered each of
the defendants’ sentencing profiles.
964 F.3d 1285, 1312 (11th Cir. 2020) (citing Wiggins v. Smith, 539 U.S. 510, 535 (2003);
Williams v. Taylor, 529 U.S. at 369–70; Porter, 558 U.S. at 32–36; Andrus v. Texas, 140 S. Ct.
1875, 1881 (2020) (per curiam)).
In this case, the new mitigating evidence provided by Drs. James, Ash, and Garbarino
“would barely have altered the sentencing profile presented” at Petitioner’s trial. Strickland, 466
U.S. at 700. Indeed, the mitigating evidence Petitioner’s trial counsel introduced sufficiently
showed that Petitioner suffered from an abusive and unstable childhood, functioned at an age
below his chronological age of eighteen when he committed his crimes, lacked executive
functioning compared to similarly aged peers, and was uniquely susceptible to peer pressure. As
described above, the testimonies of Drs. James, Ash, and Garbarino simply amplified these themes,
albeit in a more detailed approach. Thus, the Court cannot say that “the disparity between what
was presented at trial and what was offered collaterally” was so great as to create a reasonable
probability that the jury’s result would have changed. See Dallas, 964 F.3d at 1312 (“Recognizing
that the vast majority of the allegedly new mitigating evidence presented . . . did no more than
amplify the themes presented at trial, we think it wholly unlikely that the additional evidence would
have changed the jury’s result.”).
Furthermore, considering the substantial aggravating evidence that the State presented
during the sentencing phase, this is a case in which the new evidence presented at the state habeas
hearing “would barely have altered the sentencing profile presented” to the jury. Strickland, 466
U.S. at 700. “In a case challenging a death sentence, ‘the question is whether there is a reasonable
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probability that, absent the errors, the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not 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). In determining
whether there is a reasonable probability that the “additional mitigating evidence would have
changed the weighing process so that death is not warranted,” the Court considers the totality of
the evidence by weighing the mitigating evidence that was presented, and that which was not
presented, “against the aggravating circumstances that were found.” Hardwick v. Crosby, 320
F.3d 1127, 1166 (11th Cir. 2003). Here, the evidence against Petitioner was highly aggravating.
(See doc. 23-4, pp. 259–61; doc. 23-5, pp. 146–47; doc. 27-20, pp. 83–84.) As the Court quoted
above in the factual background of this Order, the Georgia Supreme Court summarized numerous
abhorrent and depraved actions that Petitioner participated in with his cohort, including: a crime
spree that included the burglary of another home and entry into the victims’ home after cutting the
power to the home; beating the mother of a thirteen-year old girl with a walking cane, flashlight,
and lamp and fatally stabbing the mother in the chest and abdomen all while the daughter could
hear her mother’s screams; binding, gagging, and raping the thirteen-year-old girl; additional
torture of the thirteen-year-old-girl including beating her with a baseball bat, slitting her throat,
attempting to suffocate her, stabbing her, and throwing objects at her all while she was still bloody
from the rape; and ultimately setting fire to the home and leaving the child to suffocate amidst the
flames and smoke while Petitioner watched from across the street. Stinski v. State, 691 S.E.2d at
862–63. Furthermore, the jury recommended the death sentence based on nine aggravating factors.
(Doc. 8-1, pp. 210–13.) Among these factors were: (1) the murder of Susan Pittman “was
outrageously or wantonly vile, horrible, or inhuman in that it involved the depravity of mind of”
Petitioner; (2) the murder of Susan Pittman “was outrageously or wantonly vile, horrible, or
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inhuman in that it involved an aggravated battery to the victim before death;” (3) Petitioner “was
engaged in the commission of arson in the first degree” when murdering Kimberly Pittman; (4)
the murder of Kimberly Pittman “was outrageously or wantonly vile, horrible, or inhuman in that
it involved tortur[ing] . . . the victim before death;” (5) the murder of Kimberly Pittman “was
outrageously or wantonly vile, horrible, or inhuman in that it involved the depravity of mind of”
Petitioner; and (6) the murder of Kimberly Pittman “was outrageously or wantonly vile, horrible,
or inhuman in that it involved an aggravated battery to the victim before death.” (Id.)
Weighing the mitigating evidence that was presented, and that which was not presented,
against the aggravating circumstances found by the jury, the Court concludes that Petitioner has
failed to show prejudice. See Callahan v. Campbell, 427 F.3d 897, 938 (11th Cir. 2005) (“[T]he
state court found three aggravating factors: the crime was committed while Callahan was under
sentence of imprisonment; the defendant had been previously convicted of a crime of violence;
and the murder was committed during a kidnapping. We have previously noted that [m]any death
penalty cases involve murders that are carefully planned, or accompanied by torture, rape, or
kidnapping. In these types of cases, this court has found that the aggravating circumstances of the
crime outweigh any prejudice caused when a lawyer failed to present mitigating evidence.”)
(internal quotations and citation omitted) (alteration in original); Brown v. Jones, 255 F.3d 1273,
1280 (11th Cir. 2001) (citing “the heinous nature of the crime” as support for the conclusion that
“[petitioner] has failed to show that [his trial counsel’s] decision . . . resulted in prejudice sufficient
to satisfy the second prong of Strickland”); Gilreath v. Head, 234 F.3d 547, 552 (11th Cir. 2000)
(“We are unconvinced that a reasonable probability exists that the testimony of the other character
witnesses would have changed the balance of aggravating and mitigating circumstances [because]
[t]he State’s evidence of aggravating circumstances was strong.”). The evidence that Petitioner’s
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actions were outrageously and wantonly vile, horrible, inhuman, and depraved, was so strong that
it is hard to imagine that any amount of mitigating evidence could have outweighed it.
Based on the foregoing, the Court finds that the state habeas court reasonably determined
that Petitioner failed to show that his trial counsel acted deficiently for failing to retain experts
such as Drs. James, Ash, and Garbarino. Further, even if Petitioner did make the requisite showing
that his trial counsel acted deficiently, he failed to show that deficiency prejudiced his defense.
Accordingly, Petitioner failed to show that the state habeas court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “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).
B.
Failure to Obtain Testimony from Additional Witnesses
Petitioner next argues that his trial counsel’s performance was objectively unreasonable
because counsel failed to obtain testimony from Tony Raby, Linda Herman, and Sean Proctor.
(Doc. 65, pp. 101–08.)
1.
Tony Raby
According to Petitioner, testimony from Tony Raby, Petitioner’s half-brother, “would have
been critical to present the jury with a first-hand account about what it was like to grow up with
[Petitioner’s] biological parents and his stepfather, the abuse that [Petitioner’s] father and
stepfather directed toward [Petitioner] and his brothers and his mother’s indifference to it and
abandonment of her sons.” (Id. at p. 102.) Petitioner’s trial counsel tried to locate Raby but was
unable to do so. Nonetheless, Petitioner argues that his trial counsel was ineffective “for failing
to make greater efforts to locate” Raby, including reaching out to Raby through his mother. (Id.)
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The state habeas court rejected Petitioner’s claim, finding that the record showed that trial
counsel “made concerted efforts to contact” Raby by telephone, even leaving messages for him.
(Doc. 27-20, p. 75.) The state habeas court further found that Petitioner failed to demonstrate that
attempting to contact Raby through his mother would have been successful because “the record
demonstrates [that] . . . Raby was never contacted by Petitioner’s mother or grandmother about
Petitioner’s case and according to . . . Raby, they were ‘afraid [he] would tell the truth and air the
family’s dirty laundry.’” (Id.) Finally, the state habeas court found that Petitioner failed to show
any prejudice occurred because Raby’s testimony would have been cumulative of testimony
Petitioner’s counsel presented through other witnesses at the trial. (Id. at p. 76.)
Petitioner argues that the state habeas court’s decision was unreasonable because “there is
no record evidence that the defense team even asked Mr. Raby’s mother to contact him on their
behalf or otherwise to put the defense team in contact with him.” (Doc. 65, p. 103.) Petitioner
further argues that “even had the defense team made that request unsuccessfully in addition to their
one attempt to reach Mr. Raby by phone, their efforts would have been constitutionally
insufficient.” (Id.) Relying on the Georgia Supreme Court’s decision in Perkins v. Hall, 708
S.E.2d 335 (Ga. 2011), Petitioner contends that trial counsel was ineffective because “their
attempts to contact [Raby] ‘were limited to . . . making some telephone calls that were never
returned.’” (Doc. 71, p. 41 (quoting Perkins, 708 S.E.2d at 340–41).)
As the state habeas court found, trial counsel retained Davis as a mitigation expert. Davis
interviewed many witnesses and reached out to several more. Relevant to Raby, Davis attempted
to contact him by telephone on more than one occasion and left messages for him. (Doc. 24-3, p.
200; doc. 24-10, p. 21.) However, neither she nor Sparger heard from or could locate Raby. (Doc.
13-15, p. 154; doc. 13-16, p. 100; doc. 13-19, p. 102–03; doc. 23-5, p. 11–12.) Furthermore, Raby
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testified during the state habeas proceedings that he “was never contacted by anybody” about
Petitioner’s trial, including his mother or grandmother. (Doc. 13-18, pp. 18, 51.) Raby believed
that his mother and grandmother did not contact him because he would “tell the truth and air the
family’s dirty laundry.” (Id. at p. 51.) These facts sufficiently support the state habeas court’s
finding that Petitioner’s trial counsel was not unreasonable in failing to locate and contact Raby.
See DeYoung v. Schofield, 609 F.3d 1260, 1290 (11th Cir. 2010) (“As to not calling the
[petitioner’s brother] to testify in the penalty phase, the state habeas court found that [the
petitioner’s trial counsel] made reasonable efforts to contact [him] to secure his testimony, but [he]
did not return their calls, indicating he ‘had no intention of assisting the defense in Petitioner’s
case.’ The evidence in the state habeas proceeding amply supported this finding.”). Furthermore,
Petitioner’s trial counsel’s calling numerous other family members to testify distinguishes the
present case from Perkins, where, unlike here, “nothing in the trial or habeas records . . .
suggest[ed] that trial counsel attempted to contact any of the numerous other family members and
friends who testified in the habeas court.” Perkins, 708 S.E.2d at 341. Based on the foregoing,
the Court finds that Petitioner failed to show that the state habeas court’s decision “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law” or “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).
Moreover, even if the trial counsel reasonably should have expended more effort to contact
Raby, Petitioner failed to show that he was prejudiced as a result. Where “‘new’ evidence largely
duplicate[s] the mitigation evidence at trial,” there is “no reasonable probability that the additional
evidence [the petitioner] presented in his state habeas proceedings would have changed the jury’s
verdict.” Cullen, 563 U.S. at 200. To determine whether the state habeas court unreasonably
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concluded that evidence would have been cumulative, the Court “compare[s] the trial evidence
with the evidence presented during the state postconviction proceedings.” Holsey v. Warden, Ga.
Diagnostic Prison, 694 F.3d 1230, 1260 (11th Cir. 2012). As directed by the Eleventh Circuit, the
Court must
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 (citing Cullen, 563 U.S. at 200); see also Wong v. Belmontes, 558 U.S. 15, 22
(2009) (“[S]ome of the evidence was merely cumulative of the humanizing evidence Schick
actually presented; adding it to what was already there would have made little difference.”); Boyd
v. Allen, 592 F.3d 1274, 1298 (11th Cir. 2010) (“[M]uch (although not all) of the ‘new’ testimony
introduced at the post-conviction hearing would simply have amplified the themes already raised
at trial and incorporated into the sentencing judge’s decision to override the jury.”) (collecting
cases).
Petitioner asserts that his defense was prejudiced by his trial counsel’s failure to contact
Raby because Raby’s testimony “would have provided first-hand testimony from a victim of, and
witness to, the abuse that [Petitioner’s] family inflicted on him and his brothers rather than secondhand . . . or self-serving accounts offered by the abusers.” (Doc. 65, p. 123.) During the state
habeas proceeding, Raby did testify about his family’s unstable and abusive background. (Doc.
13-18, pp. 15–68.) Raby testified that Petitioner’s biological father was “pretty distant” and
abusive. (Id. at pp. 22–23.) Raby also noted how the biological father’s neglect led to a car hitting
Petitioner when Petitioner was three-years old. (Id. at p. 22.) Raby further testified about
Petitioner’s stepfather and the stepfather’s relationship with Petitioner and his brothers. (Id. at pp.
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29–38.) When describing the stepfather’s “role as a father” for Petitioner and his brothers, Raby
stated the role was “nonexistent” and that “it was more of a fear and control thing.” (Id. at p. 34.)
Raby testified that the stepfather “liked to control [him and his brothers] by fear” and would hit
them with a belt or paddle if they did “something wrong.” (Id. at pp. 35–36.) Raby also testified
about his mother’s relationship with her kids, stating that “she really tried” and “had our best
interests at heart” but that “sometimes some of the decisions she made probably weren’t the best
at the time.” (Id. at p. 36.)
As the state habeas court concluded, “Raby’s testimony would have been largely
cumulative of testimony counsel presented through numerous witnesses at Petitioner’s trial.”
(Doc. 27-20, p. 76.) Indeed, several of Petitioner’s family members and friends testified during
the sentencing phase of the trial. For example, Sharlene Riley, Petitioner’s material grandmother,
testified about Petitioner’s family history of alcoholism and abuse. (Doc. 10-9, pp. 30–34.)
Specifically, Riley testified that Petitioner’s biological father “drank heavily” and was “very
abusive.” (Id. at p. 34.) Riley also recounted multiple stories illustrating Petitioner’s father’s
neglect as a parent, including the incident in which a car struck Petitioner. (Id. at pp. 34–36.)
Moreover, Riley testified that Petitioner’s mother divorced his father because “[s]he got tired of
hi[m] being drunk and passing out on the floor with a gun or knife in his hand.” (Id. at p. 38.)
Riley further testified about Petitioner’s stepfather, calling him a “heavy drinker[]” and “control
freak[],” and about Petitioner’s frequent moves and instability during his childhood. (Id. at pp.
37–38, 44, 63.)
Trial counsel also presented testimony from Davis, the mitigation specialist, and introduced
numerous records concerning Petitioner’s childhood and unstable and dysfunctional home life.
Davis testified that Petitioner’s parent’s divorce records showed that his mother filed for divorce
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due to a “pattern and practice of alcohol and/or substance abuse.” (Doc. 10–9, p. 109; see also
doc. 27-20, p. 46.) Indeed, Davis testified that Petitioner’s father had “a real serious drinking
problem.” (Doc. 10-9, p. 109.) Davis also testified that Petitioner’s stepfather was listed as a
suspect in a police report for criminal domestic violence and simple assault for pushing Petitioner’s
brother. (Id. at p. 110–11; see also doc. 27-20, p. 46.) The police report also states that Petitioner’s
mother refused to press charges against the stepfather even though he was under the influence of
alcohol during the domestic violence altercation. (Doc. 10-9, pp. 111–12; see also doc. 27-20, p.
46.) Furthermore, Davis discussed Petitioner’s brother’s mental health records, which showed a
“history of alcohol abuse and mental illness in [Petitioner’s] family.” (Doc. 10-9, p. 113; see also
doc. 27-20, p. 47.) Davis also testified that “depression ran through [Petitioner’s family]” and that
“[t]here were a number of suicides and suicide attempts.” (Doc. 10-9, p. 124; see also doc. 27-20,
p. 47.)
While Petitioner emphasizes that Raby was a “first-hand witness to the familial abuse that
[Petitioner] suffered,” (doc. 71, p. 40), Raby’s testimony—at most—simply “tells a more detailed
version of the same story told at trial” and “provides more or better examples or amplifies the
themes presented to the jury.” Holsey, 694 F.3d at 1260–61. Such “duplicative” testimony is
insufficient to establish prejudice under Strickland. See id. Thus, Petitioner failed to establish that
his defense suffered prejudice from his trial counsel’s failure to contact Raby more vigorously.
See, e.g., Cullen, 563 U.S. at 200–01 (“The ‘new’ evidence largely duplicated the mitigation
evidence at trial. School and medical records basically substantiate the testimony of Pinholster’s
mother and brother. Declarations from Pinholster’s siblings support his mother’s testimony that
his stepfather was abusive and explain that Pinholster was beaten with fists, belts, and even wooden
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boards.”). Moreover, as discussed in Discussion Section I.A.2, supra, the extent of the aggravating
factors present in this case further negates a finding of prejudice.
2.
Linda Herman
Petitioner also argues that his trial counsel was ineffective for failing to present testimony
from Linda Herman, Petitioner’s high school principal at Windsor Forest High School in
Savannah. (Doc. 65, pp. 103–07.) According to Petitioner, Herman would have been a “critical
witness to [Petitioner’s] downward spiral and increasingly desperate condition shortly before his
crimes.” (Id. at p. 103.) Petitioner asserts that “Herman’s testimony would have been important
evidence to show that in the week before the crimes [Petitioner] was a desperate kid looking for
help from available adults in his life—not a depraved murderer deserving of the death penalty.”
(Id. at p. 104.) However, Petitioner’s trial counsel did not contact Herman. Petitioner argues that
the failure to contact Herman constitutes ineffective assistance of counsel. (Id. at 104.)
The state habeas court rejected Petitioner’s claim, finding “that counsel understood . . .
Herman would not have testified on Petitioner’s behalf during the sentencing phase” and that
“harmful information could have been elicited from . . . Herman during cross-examination.” (Doc.
27-20, p. 76.) According to the state habeas court,
The record reflects that counsel understood Ms. Herman would not have testified
on Petitioner’s behalf during the sentencing phase. Trial counsel’s files contained
an investigative report prepared by the District Attorney’s Investigator Ricky
Becker which indicates that Ms. Herman informed Investigator Becker that she was
unwilling to testify on Petitioner’s behalf. Moreover, the record shows that harmful
information could have been elicited from Ms. Herman during cross-examination
by the state. Specifically, Ms. Herman told the District Attorney’s investigator that
Petitioner was “always showing his tattoos and gave the appearance that he just did
not wish to be in school.” In addition. Dr. Weilenman’s file contained handwritten
notes on the District Attorney’s investigative report that Petitioner had “[t]ongue –
earrings – blue – punk” and “we don’t want your kind at this school.” This
statement was corroborated by Petitioner, who reported to Ms. Davis that he tried
to reenroll in school and was told by Ms. Herman that they “don’t want your kind
in here.”
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(Id. at p. 76.) Based on the above findings, the state habeas court determined that Petitioner failed
to establish deficiency or prejudice from his trial counsel’s failure to present testimony from
Herman. (Id.)
Petitioner argues that the state habeas court’s decision was unreasonable because the state
court’s finding that Herman was not willing to testify on Petitioner’s behalf is contradicted by
Herman’s sworn testimony that she would have testified at trial had she been asked. (Doc. 65, p.
104.) Petitioner further argues that the state court’s finding that “harmful information could have
been elicited from . . . Herman during cross-examination” was unreasonable because the State
“failed to elicit such harmful testimony on cross-examination at the state-court hearing” and
because other witnesses testified about Petitioner’s appearance. (Id. at pp. 105–07.)
The Court concludes that Petitioner failed to show that the state habeas court’s decision
regarding trial counsel’s failure to call Herman was unreasonable as the record amply supports the
state habeas court’s findings. In his report, the district attorney’s investigator typed,
On 6/1/07, I spoke with Linda Herman . . . .
Linda Herman retired as principal of Windsor Highschool in July 2006. Herman
said that she remembered [Petitioner] as an emotionally disturbed but non-violent
student who often skipped school. [Petitioner] was always showing his tattoos and
gave the appearance that he just did not wish to be in school.
Herman said that [Petitioner] quit twice and was re-enrolled once and asked her to
re-enroll again a day or so prior to the murders. Ms. Herman said that it was too
late in the school year and she did not re-enroll [Petitioner].
Herman said she has not spoken to the defense, that she has not been subpoenaed
and would not testify on [Petitioner’s] behalf.
(Doc. 23-21, p. 238 (emphasis added).) Furthermore, the copy of the investigator’s report in Dr.
Weilenman’s file contained handwritten notes stating “tongue–earrings–blue–punk” and “we
don’t want your kind at this school.” (Id.) The Court must evaluate trial counsel’s performance
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without the benefit of hindsight and from counsel’s perspective at the time. Strickland, 466 U.S.
at 689. The record shows that, at the time of trial, trial counsel had good reason to think that
Herman either would not testify on Petitioner’s behalf or would provide harmful testimony on
cross examination. The fact that Herman later stated that she would have testified and that the
State failed to elicit harmful testimony on cross-examination during the state habeas hearing does
not preclude the state habeas court’s finding that at the time of trial, trial counsel had reason to
believe otherwise. See, e.g., White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992) (“Courts
. . . should always avoid second guessing with the benefit of hindsight.”) (citing Strickland, 466
U.S. at 689).
Furthermore, even if Petitioner showed that his trial counsel was deficient for failing to
contact Herman and call her as a witness during sentencing, the Court finds that the state habeas
court reasonably concluded that Petitioner failed to show prejudice. Like Raby’s testimony,
Herman’s testimony regarding Petitioner’s “downward spiral” in the time leading up to his crimes
“tells a more detailed version of the same story told at trial” and “provides more or better examples
or amplifies the themes presented to the jury.” Holsey, 694 F.3d at 1260–61. For example, Dr.
Weilenman testified that Petitioner was “trying to find a place to sleep [and] food to eat” at the
time of his crimes and was seeking out friends and adults who would “tolerate him” living with
them. (Doc. 10-11, pp. 60–61.) Thus, the Court finds Herman’s testimony would have been
cumulative of other evidence that was presented during the sentencing phase. See, e.g., Cullen,
563 U.S. at 200–01 (“The ‘new’ evidence largely duplicated the mitigation evidence at trial.
School and medical records basically substantiate the testimony of Pinholster’s mother and
brother. Declarations from Pinholster’s siblings support his mother’s testimony that his stepfather
was abusive and explain that Pinholster was beaten with fists, belts, and even wooden boards.”).
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Moreover, the possibility of the prosecution eliciting harmful testimony from Herman on
cross-examination regarding Petitioner’s appearance and frequent absence from school further
negates a finding of prejudice. See Cullen, 563 U.S. at 201 (finding that the failure to present new
mitigating evidence was not prejudicial because the evidence “would have opened the door to
rebuttal by a state expert”); see also DeYoung, 609 F.3d at 1291 (discounting the possibility of
prejudice because the new mitigating circumstances evidence “would have opened the door to
harmful testimony which may well have eliminated any mitigating weight in the overall
equation”); Ledford, 818 F.3d at 649 (“Prejudice is . . . not established when the evidence offered
in mitigation is not clearly mitigating or would open the door to powerful rebuttal evidence.”).
Finally, as discussed in Discussion Section I.A.2, supra, the extent of the aggravating factors
present in this case further negates a finding of prejudice.
3.
Sean Proctor
Petitioner also argues that his trial counsel was ineffective for failing to present testimony
from Sean Proctor, a friend of Petitioner from Savannah. (Doc. 65, pp. 107–08.) According to
Petitioner, Proctor “would have been another critical witness to [Petitioner’s] downward spiral
after he was kicked out of his brother’s house in Savannah.” (Id. at p. 107.) Trial counsel spoke
with Proctor and prepared him to testify at Petitioner’s trial. However, during a break in the trial,
trial counsel decided not to call Proctor as a witness. Petitioner argues the “there was no strategic
reason for failing to call . . . Proctor.” (Id.)
The state habeas court rejected this claim, finding that
[t]he record shows Ms. Davis initially interviewed Mr. Proctor on October 30,
2003. As previously stated, Ms. Davis described Mr. Proctor as a “stereotypical
punk” and that “[h]e swaggers and postures while he talks and, while he tried to be
helpful to me, he is a smart-mouth kid who uses drugs.” Additionally, in March
and April of 2007, the record shows trial counsel attempted to contact Mr. Proctor
by telephone and on May 11, 2007 had a conference with Mr. Proctor, which lasted
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approximately thirty-six minutes. Mr. Schiavone made the strategic decision that
Mr. Proctor would not be called as a witness. Mr. Schiavone told Mr. Sparger, “We
don’t want him. We need to get him out of here.” Following the trial, Mr. Sparger
sent Mr. Proctor a thank you letter and explained “[s]ince what you had told me
was not consistent with what you had told our investigator, Dale Davis, I was very
concerned about calling you, because I was not sure what you would say. I know
you care very much for [Petitioner], but we do not want you to try to describe him
as the perfect All-American teenager, if he was actually something quite different.”
(Doc. 27-20, pp. 76–77.) Based on these findings, the state habeas court found that Petitioner
failed to established deficiency or prejudice as to trial counsel’s failure to call Proctor as a witness.
(Id. at p. 77.)
Petitioner argues that the state court’s findings are unreasonable because Davis’s
observations about Proctor occurred in October 2003, over three years before Petitioner’s trial.
(Doc. 65, p. 107.) According to Petitioner, the state habeas court ignored evidence that Proctor
“did not present the same way he did when he spoke to Ms. Davis years earlier,” as he was sober,
working full time, and dating his current wife by the time of trial. (Id. at p. 108.) Petitioner also
argues that the state habeas court ignored Sparger’s testimony that the reason provided in the letter
for not calling Proctor was pretextual. (Id.) Thus, according to Petitioner, “there was no strategic
reason for failing to call Mr. Proctor.” (Id. at p. 107.)
The Court concludes that the record sufficiently supports the state habeas court’s finding
that trial counsel made a strategic decision to not call Proctor as a witness, a decision that is
“presumptively correct.” Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1233 (11th Cir.
2008) (“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.”). “Which witnesses, if any, to call, and when to call them, is the epitome
of a strategic decision, and it is one that we will seldom, if ever, second guess.” Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995). Indeed, the record confirms that after Davis interviewed
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Proctor, she described him as a “stereotypical ‘punk’” and a “smart-mouth kid who uses drugs.”
(Doc. 26-17, p. 163.) On May 11, 2007, (less than one month before trial) trial counsel held a
telephonic conference with Proctor that lasted approximately thirty-six minutes. (Doc. 24-10, p.
37.) After Proctor showed up at trial ready to testify, lead counsel Schiavone, who Petitioner
agrees “was the most experienced member of the defense team,” (doc. 65, p. 56), decided not to
call Proctor as a witness for the sentencing phase. (Doc. 13-15, pp. 206–07.) According to
Sparger, Schiavone told him that “[w]e don’t want [Proctor]. We need to get him out of here.”
(Doc. 13-16, p. 110.) Sparger then “sugarcoated some reason” and told Proctor he could leave. 6
(Doc. 13-15, p. 207.) After the trial, Sparger sent Proctor a letter stating, “Since what you had told
me was not consistent with what you had told our investigator Dale Davis, I was very concerned
about calling you, because I was not sure what you would say. I know you care very much for
[Petitioner], but we did not want to try to describe him as a perfect all-American teenager if he was
actually something quite different.” (Doc. 13-16, p. 114.) These findings amply support the state
habeas court’s decision.
Petitioner is correct that Sparger testified that the letter does not “describe the strategy for
not calling” Proctor because Sparger did not make that decision. (Id. at p. 114.) Furthermore,
Sparger stated that he could not “recall Schiavone telling [him] the reason [for not calling Proctor].
Although, it may have been appearance, maybe a tattoo, or a piercing or something that seemed
inappropriate.” (Id. at p. 115.) This evidence shows, at most, that the record is ambiguous as to
the actual reason Schiavone decided to not call Proctor as a witness at the sentencing phase.
However, “[a]n ambiguous or silent record is not sufficient to disprove the strong and continuing
presumption [in favor of competence]. Therefore, where the record is incomplete or unclear about
Sparger testified that although he “was doing the mitigation,” Schiavone was “still lead counsel” so
Sparger “follow[ed] his direction.” (Doc. 13-15, p. 207.)
6
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[counsel’s] actions, the Court must presume that [counsel] did what he should have done, and that
he exercised reasonable professional judgment.” Chandler v. United States, 218 F.3d 1305, 1314
n.15 (11th Cir. 2000) (internal quotations omitted).
Moreover, while Petitioner argues that the state habeas court ignored evidence that Proctor
was “sober,” “working full-time”, and “dating his current wife,” the record indicates that trial
counsel held a conference call with Proctor a few weeks before the trial and did not decide to
dismiss Proctor as a witness until after Proctor showed up at trial. Thus, trial counsel would have
had an opportunity to see Proctor’s appearance before deciding to not call him as a witness.
Furthermore, while it may be true that Proctor was sober, working full time, and dating his now
wife, the Court must “avoid second guessing with the benefit of hindsight.” White v. Singletary,
972 F.2d at 1220; see also Thompson v. Wainwright, 784 F.2d 1103, 1106 (11th Cir. 1986)
(“Hindsight, however, is not the appropriate perspective for a court to examine counsel’s
effectiveness.”). “As is often said, ‘Nothing is so easy as to be wise after the event.’” Atkins v.
Singletary, 965 F.2d 952, 958 (11th Cir. 1992).
In the years leading up to trial, Davis’s
observations showed that Proctor was “a smart-mouth kid who uses drugs,” was “headed for more
trouble because of his drug use,” “introduced [Petitioner] to drugs,” and lasted only three days in
a five-month program “for kids with problems.” (Doc. 26-17, pp. 163–64.) Then, after Proctor
showed up to testify, trial counsel decided not to call him as a witness. (Doc. 13-15, pp. 206–07.)
Thus, the Court cannot say that trial counsel’s decision not to call Proctor was “so patently
unreasonable that no competent attorney would have chosen it.” Dingle v. Sec’y for Dep’t of
Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Based on the foregoing, the Court concludes that
Petitioner failed to show that his trial counsel acted deficiently when Schiavone decided to not call
Proctor as a witness.
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Based on the foregoing, the Court concludes that the state habeas court reasonably
determined that Petitioner failed to show that his trial counsel’s performance was deficient for
failing to call Raby, Herman, or Proctor as witnesses during the sentencing phase. Moreover, even
if Petitioner had showed trial counsel acted deficiently, the state habeas court reasonably
concluded that Petitioner failed to show prejudice.
This is especially true considering the
cumulative nature of the testimony and, as discussed in Discussion Section I.A.2, supra, the highly
aggravating factors present in this case. Accordingly, Petitioner failed to show that the state habeas
court’s decision regarding trial counsel’s failure to call Proctor as a witness “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law”
or “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).
C.
Presenting Davis’s Testimony and Producing Memoranda
Petitioner next argues that his trial counsel was ineffective for calling Davis as a witness
at the sentencing phase and producing Davis’s memoranda and notes to the prosecution. (Doc. 65,
pp. 108–113.) Specifically, Petitioner contends that trial counsel’s decision to call Davis “was not
strategic” and only occurred because “[counsel] forgot to act on [Davis’s] recommendation to
retain a social worker to introduce records.” (Id. at pp. 108–09.) Petitioner also argues that
because Davis was not qualified to testify about “the impact of the information in the record she
obtained on “[Petitioner],” the prosecution on cross-examination was “able to highlight unhelpful
matters in the records” that Davis could not “put . . . in their proper context.” (Id. at p. 109.)
Finally, Petitioner asserts that trial counsel “exacerbated the situation” by “unreasonably” and
“voluntarily” producing Davis’s interview memoranda and notes she created and accrued during
her investigation to the prosecution. (Id.) According to Petitioner, producing Davis’s memoranda
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and notes prejudiced the defense because it gave the prosecution “a window into the defense
strategy and material that the prosecution used to impeach other witnesses.” (Id.)
1.
Trial Counsel’s Decision to Call Davis as a Witness
The state habeas court rejected Petitioner’s claim that calling Davis as a witness was
unreasonable. (Doc. 27-20, p. 69.) According to the state habeas court,
Ms. Davis was an experienced mitigation specialist having worked on more than
thirty death penalty cases in state and federal courts. Ms. Davis was utilized by
counsel at Petitioner’s trial to introduce records relating to Petitioner, rather than
explain the potential impact of Petitioner’s social history. Early in her testimony,
Ms. Davis explained her role as a mitigation specialist and provided details of how
she had prepared her social history of Petitioner.
Through Ms. Davis’s testimony, Petitioner’s attorneys were able to introduce
volumes of mitigation documentation including: birth records; prenatal and
delivery records; hospital records; school records; Shawano County (Wisconsin)
Department of Social Services and Family Court records; counseling records;
Chatham County Detention Center medical and mental health records; divorce
records of Petitioner’s parents; South Carolina Department of Mental Health
records on Petitioner’s brother Donald; marriage records for Petitioner’s mother
and Frank Sutton, and; a police report on Frank Sutton. Given Ms. Davis’s
extensive experience as a mitigation specialist and the scope of her testimony,
counsel’s decision to have her testify in mitigation to introduce Petitioner’s social
history was reasonable.
Moreover, as previously shown, trial counsel chose Dr. Weilenman as the final
witness in the sentencing phase to testify to the potential impact of Petitioner’s
social history. Petitioner has failed to show trial counsel’s decision to utilize Ms.
Davis in conjunction with Dr. Weilenman fell below the standard of
reasonableness. As held by the Eleventh Circuit Court of Appeals, the test of
reasonableness “has nothing to do with what the best lawyers would have done.
Nor is the test even what most good lawyers would have done. We ask only
whether some reasonable lawyer at the trial could have acted, in the circumstances,
as defense counsel acted at trial.” Bates v. Florida, 768 F.3d 1278, 1295 (11th Cir.
2014) [(]citing Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc)
[)]. As Petitioner has failed to show trial counsel’s conduct fell below that of a
reasonable competent counsel, his claim is denied.
(Id. at pp. 70–71.) Petitioner argues that the state habeas court’s decision was unreasonable
because “it ignores the uncontradicted record evidence that Ms. Davis testified only because Mr.
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Sparger failed to follow through on her advice that he retain a social worker so that she would not
have to testify.” (Doc. 65, p. 112.)
After reviewing the evidence presented at trial and at the state habeas hearing, the Court
finds that the state habeas court’s decision was not unreasonable. Indeed, Petitioner failed to meet
the requisite showing of an ineffective assistance of counsel claim under Strickland. As the state
habeas court properly determined, the reasonableness test under Strickland asks, “whether some
reasonable lawyers at the trial could have acted, in the circumstances, as defense counsel acted at
trial.” Bates v. Florida, 768 F.3d 1278, 1295 (11th Cir. 2014). The reasonableness test “has
nothing to do with what the best lawyers would have done. Nor is the test even what most good
lawyers would have done.” Id. Here, Davis was an experienced mitigation expert, had worked on
more than thirty death penalty cases in state and federal courts, and gathered the extensive
mitigation evidence. (Doc. 27-20, p. 70.) Furthermore, through Davis, trial counsel introduced
extensive mitigation evidence. (Id.) Finally, Petitioner used Davis in conjunction with Dr.
Weilenman to testify about the potential impact of Petitioner’s social history. (Id.) The record
sufficiently supports the state habeas court’s finding that trial counsel acted reasonably in allowing
Davis to testify during sentencing.
To the extent Petitioner asserts that trial counsel needed to hire a social worker or a “record
custodian” to render effective assistance of counsel or that Davis was unqualified to give testimony
at trial, (see doc. 71, pp. 44–45), the Court emphasizes that “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.” Waldrop v. Thomas, No. 3:08-CV-515-WKW, 2014 WL
1328138, at *62 (M.D. Ala. Mar. 31, 2014). Indeed, Petitioner has not highlighted any evidence
indicating that “prevailing professional norms” in Georgia dictate hiring and calling a social
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worker or record custodian to testify rather than a mitigation expert such as Davis. See Morrow
v. Warden, 886 F.3d 1138, 1150 (11th Cir. 2018) (“Morrow also fails to establish that
contemporary ‘prevailing professional norms’ in Georgia dictated hiring a social worker for capital
cases.”).
2.
Producing Memoranda to Prosecution
Petitioner further contends that trial counsel “exacerbated the situation when he
unreasonably [and] voluntarily produced Ms. Davis’s privileged and confidential interview
memoranda and notes to the State.” (Doc. 65, p. 109.) According to Petitioner, this production
“prejudiced the entire defense sentencing phase presentation going forward by giving the
prosecution a window into the defense strategy and material that the prosecution used to impeach
other witnesses.” (Id. at pp. 109–10.) During the period leading up to Petitioner’s trial, Georgia
enacted O.C.G.A. § 17-16-1, et seq., which provides that a criminal defendant “must disclose[]
five days before trial the identity of witnesses the defendant[] intends to call at sentencing and
must disclose at or before the guilt/innocence verdict any non-privileged statements of those
witnesses that are in the defendant’s possession.” Stinski v. State, 642 S.E.2d 1, 7 (Ga. 2007)
(emphasis added) (citing O.C.G.A. § 17-16-4(b)(3)(C)). Notably, O.C.G.A. § 17-6-1 provides that
a “‘[s]tatement of a witness’ . . . does not include notes or summaries made by counsel.” O.C.G.A.
§ 17-16-1. Trial counsel objected to the criminal discovery procedure outlined in O.C.G.A. § 176-1, et seq., on interim appeal, arguing that the statutory scheme was unconstitutional. See Stinski
v. State, 642 S.E.2d at 7–8. The Georgia Supreme Court rejected trial counsel’s arguments on
interim appeal, id., and trial counsel, attempting to comply with the statutory requirements,
produced Davis’s notes and memoranda over to the prosecution in accordance with the criminal
discovery procedure statute. (Doc. 27-20, p. 71.) Trial counsel later argued on direct appeal that
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the “criminal discovery procedure interferes with trial counsel’s ability to use mitigation specialists
to assist trial counsel in preparing for the sentencing phase of death penalty trials” because
“statements of witnesses discovered by mitigation specialists and reported on in writing to trial
counsel would be discoverable by the State under O.C.G.A. § 17-16-4(b)(3)(C), while statements
of witnesses discovered by trial counsel directly would not be.” Stinski v. State, 691 S.E.2d at
865. The Georgia Supreme Court again disagreed with trial counsel’s arguments but clarified the
reach of the statute, stating:
We have held that work “done by [an investigator] under the attorney’s instruction
and supervision was as much a part of the attorney’s work as if he had done it
himself.” Similarly, we hold that “notes and summaries” made by a mitigation
specialist who is working at the discretion of trial counsel in a death penalty case
should be regarded as “notes and summaries made by counsel” within the meaning
of the criminal discovery procedure.
Id. at 865. Thus, the Georgia Supreme Court determined that “there is no merit to Stinski’s
argument that a death penalty defendant’s ability to employ a mitigation specialist to assist in
investigation is unduly hampered by the criminal discovery procedure.” Id. at 865–66.
The state habeas court concluded that “trial counsel’s performance cannot be found below
that of reasonable competent counsel where a rule of law such as the [one announced on direct
appeal] is rendered subsequent to [their] representation.
As established in Strickland, trial
counsel’s performance must be evaluated without the benefit of hindsight and from counsel’s
perspective at the time.” (Doc. 27-20, p. 71 (citing Strickland, 466 U.S. at 689).) The Court
agrees. As the state habeas court found, trial counsel only produced Davis’s notes and memoranda
to comply with the Georgia Supreme Court’s decision that the criminal discovery statute applied
to Petitioner’s case. (Doc. 27-20, p. 71); see Stinski v. State, 642 S.E.2d at 6–7. Indeed, the
Georgia Supreme Court did not rule until nearly three years after Petitioner’s trial that a mitigation
specialist’s notes and summaries fall within the “notes and summaries made by counsel” exception
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to the statute. See Stinski v. State, 691 S.E.2d at 865. As the state habeas court concluded, “until
the Georgia Supreme Court issued its direct appeal decision in the instant case, trial counsel was
not on notice that the materials produced by Ms. Davis in her role as a mitigation specialist were
not discoverable.” (Doc. 27-20, p. 71.); see Diaz v. United States, 799 F. App’x 685, 688 (11th
Cir. 2020) (“If a legal principal is unsettled, counsel is not deficient ‘for an error in judgment.’
Thus, if an attorney could have reasonably reached the incorrect conclusion concerning an
unsettled question of law, ‘that attorney’s performance will not be deemed deficient for not raising
that issue to the court.’”) (quoting Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004)).
While Petitioner generally argues that trial counsel did not need a clear decision by the
Georgia Supreme Court to reasonably know that the requirements under the criminal discovery
statute did not encompass Davis’s notes and memoranda, the Court must review trial counsel’s
decisions without the benefit of hindsight. See Strickland, 466 U.S. at 689. “Even if many
reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted
on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances,
would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Considering the Georgia
Supreme Court’s decision on interim appeal that rejected trial counsel’s arguments that the
criminal discovery procedure was unconstitutional and the Georgia Supreme Court’s need on
direct appeal to clarify whether the criminal discovery statute encompassed a mitigation
specialist’s notes and memoranda, the Court finds that Petitioner failed to carry his “heavy burden”
to show that “no reasonable lawyer” would have done the same. Id. Indeed, this case is
distinguishable from other cases, such as Lawhorn v. Allen, where trial counsel failed “to conduct
adequate legal research in support of [their] decision[s],” 519 F.3d 1272, 1298 (11th Cir. 2008),
as Petitioner’s trial counsel seemingly anticipated the potential adverse effect the criminal
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discovery procedure could have had on Petitioner’s case and sought relief through interim appeal.
Thus, the Court finds that the state habeas court reasonably determined that Petitioner failed to
show his trial counsel’s conduct was deficient. See Strickland, 466 U.S. at 690 (“[A] court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”).
3.
Prejudice
Furthermore, even if Petitioner satisfied his burden under Strickland to show deficiency in
his trial counsel’s conduct regarding Davis, the Court finds that Petitioner failed to show he was
prejudiced by trial counsel’s decision to call Davis as a witness at the sentencing phase or by his
trial counsel’s production of Davis’s memoranda and notes.
Regarding Davis’s testimony,
Petitioner asserts that “on cross-examination[,] the State was able to highlight unhelpful matters
in the records and Ms. Davis was unable to put those matters in perspective.” (Doc. 65, p. 109.)
However, Petitioner’s briefings fail to cite to or point to either the “unhelpful matters” the
prosecution asked Davis about during cross-examination or how the discussion of those matters
resulted in a “substantial likelihood of a different result” in the sentencing phase of the trial.
Harrington v. Richter, 562 U.S. 86, 112 (2011); (see also docs. 65, 71.). Furthermore, Petitioner
failed to adequately show what exactly a different social worker or a record custodian would have
testified to or how his or her testimony would have been substantially likely to lead to a different
result during sentencing. (See docs. 65, 71); see also Durr v. Mitchell, 487 F.3d 423, 437 (6th Cir.
2007) (“The affidavit does not even discuss the potential effect such an expert would have had on
the jury’s decision to return a death sentence or not. Durr fails to show how the absence of this
expert resulted in prejudice under Strickland.”).
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Moreover, regarding trial counsel’s decision to produce Davis’s notes and memoranda,
Petitioner failed to show that there is a “reasonable probability that the outcome of his sentencing
would have been different” had trial counsel not produced those documents. Strickland, 466 U.S.
at 694. Petitioner asserts his defense was prejudiced because “[s]ome of the witnesses were
confronted with unhelpful details from those memoranda on cross-examination.” (Doc. 65, pp.
74, 109.) As an example, Petitioner points to the testimony of Matt Correll. 7 (Id.) According to
Petitioner, because trial counsel produced Davis’s notes, the prosecution was able to elicit
testimony from Correll on cross examination that Petitioner had been “verbally abusive” to one of
his sons. (Doc. 65, pp. 74–75; see also doc. 10-10, p. 86.) However, after stating that he
“believe[d]” Petitioner had been “verbally abusive,” Correll clarified that Petitioner was never
physically violent “with anybody in [his] house” and would have let Petitioner come back to stay
with him and his family had Petitioner asked, seemingly minimizing any prejudicial effect of his
testimony that Petitioner had been verbally abusive. (Doc. 10-10, p. 86.) Finally, as discussed in
Discussion Section I.A.2, supra, the highly aggravating factors present in this case further negate
a finding of prejudice. Accordingly, Petitioner failed to show that his trial counsel’s conduct
regarding Davis and the production of her memoranda and notes “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law” or “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).
Petitioner stayed with Correll and his two sons for a few months in 2000. (Doc. 10-10, pp. 81–84.)
Correll’s son asked him if Petitioner could stay with them because Petitioner “was about to be homeless.”
(Id. at p. 81.)
7
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D.
Rebuttal Evidence regarding Petitioner’s Remorse
Petitioner next argues that his trial counsel unreasonably failed to rebut the prosecution’s
evidence that Petitioner was unremorseful about committing his crimes. (Doc. 65, pp. 114–18.)
According to Petitioner, his supposed lack of remorse for his crimes was a “major theme” of the
trial, which the prosecution emphasized by referring to it during their opening statement and
closing argument and by playing portions of Petitioner’s videotaped statement to police in which
Petitioner looked “flat” when discussing his crimes. (Id. at p. 114 (quoting doc. 10-8, p. 177; doc.
10-11, pp. 111–12, 121).) Petitioner asserts that his trial counsel should have rebutted the
prosecution’s arguments by (1) introducing testimony from an expert like Dr. Garbarino about
children’s response to trauma and (2) calling Alton VanBrackle as a witness. (Id. at pp. 114–15.)
Alton VanBrackle was a prisoner who was housed in the same jail unit as Petitioner. (Doc.
19-20, p. 107.) While they were together in jail, Petitioner confessed to VanBrackle that he
committed the crimes and expressed remorse for those crimes. (Doc. 13-15, p. 143; doc. 25-23,
pp. 105–19, 229; see also doc. 27-20, p. 35.) Davis interviewed VanBrackle for several hours and
notified trial counsel that VanBrackle described instances in which Petitioner was “crying and
praying” at night, upset, and depressed. (Doc. 19-20, pp. 107–08.) Davis also informed trial
counsel that VanBrackle told her that Petitioner could not “get the ‘stuff’” out of his head. (Id. at
p. 107.) Based on Davis’s interview, trial counsel determined that VanBrackle could be an
important sentencing phase witness because he provided evidence of Petitioner’s remorse. (Doc.
13-16, p. 49; doc. 25-23, p. 247; see also doc. 27-20, p. 35.) However, trial counsel also expressed
concerns about VanBrackle’s testimony, namely that VanBrackle’s roommate was a relative of the
victims and that “there was [sic] some things in his statement . . . that [trial counsel] wished [were
not] in it.” (Doc. 13-15, p. 190; doc. 23-4, p. 288–89; doc. 24-11, p. 14; doc. 25-23, p. 247; see
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also doc. 27-20, p. 35.) These concerns were further exacerbated when, around the time of trial,
trial counsel learned that VanBrackle was living with the victim’s son and had “backed way off”
what he previously told Davis during their interview. (Doc. 13-16, p. 51; doc. 25-23, p. 120; see
also doc. 27-20, p. 35.) Specifically, VanBrackle was only willing to testify about Petitioner’s
confession to him about the crimes and not his remorse. (Doc. 25-23, p. 120; see also doc. 27-20,
p. 35.) VanBrackle eventually “came back around,” but trial counsel was still nervous about
calling him as a witness. (Doc. 13-16, p. 51; see also doc. 27-20, p. 35.)
Furthermore, the state trial court’s decision regarding VanBrackle’s testimony complicated
matters further. After trial counsel announced their intent to call VanBrackle as a witness during
the sentencing phase, the prosecution argued that if VanBrackle testified regarding Petitioner’s
confession to him, then the prosecution would impeach that testimony with a statement made by
Petitioner to police that trial counsel believed was more incriminating than his confession to
VanBrackle and contained more details about the crime. 8 (Doc. 10-10, pp. 128–29, 178–79; doc.
13-16, p. 55; see also doc. 27-20, pp. 72–73.) Indeed, keeping the more incriminating statement
out of evidence was part of trial counsel’s trial strategy, for trial counsel was concerned that if
VanBrackle took “one step the wrong way, [it would] open[] the door to [Petitioner’s] second
statement . . . which was not going to help [Petitioner] in mitigation.” (Doc. 13-16, pp. 55, 58; see
also doc. 27-20, pp. 73–74.) The state trial court ruled that if VanBrackle were to testify regarding
the facts of the crime as told by Petitioner, it would open the door for the prosecution to impeach
him using Petitioner’s more incriminating statement to police. (Doc. 10-10, p. 188.) The Georgia
Supreme Court affirmed this decision, stating that “the trial court properly cautioned [Petitioner]
that his alleged out-of-court statement, if he chose to present hearsay testimony recounting it at
This statement to the police had previously been suppressed. (Doc. 10–10, pp. 130–31; see also doc. 2720, p. 72.)
8
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trial, could be impeached by the State by use of his previously-suppressed videotaped statement.”
Stinski v. State, 691 S.E.2d at 872–74; (see also doc. 27-20, pp. 72–73.)
The state habeas court ruled that trial counsel was not deficient for failing to call
VanBrackle as a witness and that even if trial counsel was deficient for that decision, Petitioner
failed to show that it was prejudicial. (Doc. 27-20, pp. 73–74.) The state habeas court determined
that trial counsel made a “strategic decision” not to present the testimony of VanBrackle given
their concerns about the scope of his testimony and his relationship with the victim’s family. (Id.
at p. 73.) The state habeas court further ruled that Petitioner failed to show prejudice because
VanBrackle was a “risky witness” and putting him on the stand could have “opened the door” to
Petitioner’s damaging statement to police, effectively undercutting “any remorse argument
Petitioner would have garnered.” (Id. at p. 74.)
Petitioner argues that the state habeas court’s decision was based on “an unreasonable
determination of facts in the state court record.” (Doc. 65, p. 117.) First, according to Petitioner,
the state court ignored the trial court’s ruling that Petitioner’s more incriminating statement to
police would remain inadmissible if Petitioner limited his testimony to Petitioner’s remorse, which
Petitioner believes is “something largely in control of trial counsel.” (Id. at pp. 117–18.) Next,
Petitioner asserts that the state habeas court ignored Sparger’s testimony that VanBrackle “came
back around” and was willing to testify by the time of trial. (Id. at p. 118.)
The Court finds that the state habeas court reasonably determined that Petitioner’s trial
counsel was not deficient for failing to present testimony from VanBrackle or an expert like Dr.
Garbarino. Regarding Dr. Garbarino, the Court explained above that trial counsel reasonably
failed to procure testimony from someone like her who is an expert in child trauma. See Discussion
Section I.A.1, supra. Concerning VanBrackle, the state habeas court properly found that trial
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counsel made a strategic decision to not call VanBrackle as a witness. Indeed, “[w]hich witnesses,
if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we
will seldom, if ever, second guess.” Waters, 46 F.3d at 1512; see also, e.g., Rhode v. Hall, 582
F.3d 1273, 1284 (11th Cir. 2009). While Petitioner argues that trial counsel was “largely in
control” of whether VanBrackle would testify about the facts of the crime (and, thus, could avoid
opening the door to Petitioner’s incriminating statement), trial counsel expressed legitimate
concerns over their ability to do so, stating that “one step the wrong way” would “open[] the door
to [Petitioner’s] second statement . . . which [would] not . . . help [Petitioner] in mitigation.” (Doc.
13-16, p. 58.) Furthermore, even though VanBrackle “came back around,” trial counsel was still
“nervous about him” because of how he had communicated with trial counsel and because he was
living with the victim’s son. (Id. at p. 51.) Based on the potentially harmful evidence, trial counsel,
as the state habeas court found, made a reasonable strategic decision to not call VanBrackle as a
witness. (Doc. 27-20, p. 73.)
Even if Petitioner showed that his trial counsel was deficient for not calling VanBrackle as
a witness, the state habeas court reasonably determined that Petitioner failed to show prejudice.
As the state habeas court found, Petitioner could not “establish that there is a reasonable probability
that the outcome of his sentencing would have been different” had trial counsel called VanBrackle
as a witness because VanBrackle could have “undercut any remorse argument Petitioner would
have garnered,” and “the evidence in aggravation was highly persuasive.” (Id. at pp. 74–75); see
Cullen, 563 U.S. at 201 (finding that the failure to present new mitigating evidence was not
prejudicial because the evidence “would have opened the door to rebuttal by a state expert”); see
also DeYoung, 609 F.3d at 1291 (discounting the possibility of prejudice because the new
mitigating circumstances evidence “would have opened the door to harmful testimony which may
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well have eliminated any mitigating weight in the overall equation”); Ledford, 818 F.3d at 649
(“Prejudice is . . . not established when the evidence offered in mitigation is not clearly mitigating
or would open the door to powerful rebuttal evidence.”); see also Discussion Section I.A.2, supra
(finding that the highly aggravating factors present in Petitioner’s case further negate the finding
of prejudice).
E.
Voir Dire Questions regarding Views about the Death Penalty
Petitioner next argues that trial counsel rendered ineffective assistance of counsel by failing
to ask potential jurors during voir dire whether “they could fairly consider a life sentence in a case
involving a child victim.” (Doc. 65, p. 119.) Voir dire in this case lasted six days. (See doc. 919; see also doc. 10-5.) During voir dire, the prosecution objected to trial counsel asking questions
that were too specific to Petitioner’s case, and the state trial court agreed. (Doc. 10-1, pp. 24–28.)
Trial counsel then requested that they be allowed to ask potential jurors about their opinions on
the death penalty “where a child is the victim in a case in which the person is accused of the murder
of a child.” (Id. at p. 29.) The state trial court initially reserved ruling on the request but then
permitted trial counsel to ask the next potential juror such a question, over the prosecution’s
objection. (Id. at pp. 34–35, 44–45.) Petitioner, referencing several members of the jury who were
not asked specifically about the death penalty in cases with juvenile victims, argues that his trial
counsel’s failure to ask that question of each juror violated his “constitutional right to an impartial
jury” because the right “include[s] the right to a jury that could consider all sentencing options
even in cases involving child victims.” (Doc. 71, p. 52; see also doc. 65, p. 119.)
The state habeas court rejected Petitioner’s claim, ruling that Petitioner failed to show that
his trial counsel was deficient for failing to ask the question of each potential juror and that
Petitioner failed to show prejudice.
(Doc. 27-20, pp. 26–28.)
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performance, the state habeas court found that the jurors knew that Petitioner was charged with
murdering a juvenile, that trial counsel did ask potential jurors the question, that certain potential
jurors gave responses to other questions that were so favorable to the defense that trial counsel
could have reasonably believed further questions would lead to challenges for cause by the
prosecution, and that trial counsel’s performance persuaded the state trial court to disqualify a
potential juror. (Id. at pp. 27–28.) Regarding prejudice, the state habeas court determined that
Petitioner did not demonstrate “that the jurors who ultimately sat on his jury could not fairly
consider a life sentence in a case involving a child victim or were otherwise unqualified.” (Id. at
p. 28.)
The Court finds that the state court reasonably concluded that Petitioner failed to show trial
counsel acted deficiently during voir dire. Effective assistance of counsel is required during voir
dire. See Brown, 255 F.3d at 1279. However, trial counsel’s “questions and tactics during voir
dire are a matter of trial strategy.” Galin v. Sec’y, Dep’t of Corr., No. 8:08-cv-254-T-23TBM,
2013 WL 1233125, at *6 (M.D. Fla. Mar. 27, 2013) (citing Hughes v. United States, 258 F.3d 453,
457 (6th Cir. 2001)); see also Head v. Carr, 544 S.E.2d 409, 418 (Ga. 2001) (“By [its] nature, trial
counsel’s conduct of voir dire . . . [is a] matter[] of trial tactics.”); United States v. Battle, 264 F.
Supp. 2d 1088, 1178 (N.D. Ga. 2003) (“[D]eference is to be given to counsel’s actions during voir
dire, as voir dire is recognized to involve considerations of strategy.”). Here, trial counsel engaged
in a six-day long voir dire, requiring each potential juror to fill out a questionnaire and asking each
individual potential juror about their opinions regarding the death penalty. (See doc. 9-19 through
doc. 10-5.) Trial counsel also “strenuously objected” to the prosecution’s motion to disallow
certain questions and won the state trial court’s approval to ask potential jurors specifically about
the death penalty in cases involving juvenile victims. (See doc. 27-20, pp. 27–28.) Indeed, trial
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counsel ultimately asked some jurors specifically about the death penalty in cases with juvenile
victims. (See doc. 10-1, pp. 44–45.) While trial counsel did not ask each potential juror such a
question, that failure does not necessarily render their performance deficient as a plethora of
reasons exists for why trial counsel could have refrained from asking each potential juror such a
question. For example, as the state habeas court found, some witnesses’ responses to other
questions could have been so favorable to the defense that trial counsel did not need to ask any
further questions for fear of the prosecution challenging such a potential juror. (See doc. 27-20,
p. 28); see Stanford v. Parker, 266 F.3d 442, 454 (6th Cir. 2001) (“[I]f the jury pool was
satisfactory, defense counsel may have calculated that asking additional life-qualifying questions
might aid the prosecution in deciding how to use its peremptory challenges.”). Considering the
deference afforded to trial counsel on matters of trial strategy, the Court cannot conclude that
Petitioner’s trial counsel did not fall “within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; see also Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995) (“A
decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel
unless counsel’s tactics are shown to be so ill chosen that it permeates the entire trial with obvious
unfairness.”) (internal quotations omitted).
Even if Petitioner showed that his trial counsel acted deficiently during voir dire, the state
habeas court reasonably concluded that Petitioner failed to show prejudice for that deficiency. As
the state habeas court found, “Petitioner has not demonstrated that the jurors who ultimately sat on
his jury could not fairly consider a life sentence in a case involving a child victim or were otherwise
unqualified.” (Doc. 27-20, p. 28.) Trial counsel asked each person who ultimately sat on the jury
the following question: “If the defendant is found guilty of the offense of murder, would you
automatically vote for the death penalty, regardless of the evidence in the case?” (Doc. 9-20, p.
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165–66; doc. 10-1, pp. 114, 186–87, 217; doc. 10-2, pp. 13, 210–11; doc. 10-3, pp. 59, 129; doc
10-4, p. 51.) Every juror affirmed that he or she would not automatically impose the death penalty
if Petitioner was found guilty of murder and would instead consider all the evidence before making
such a decision. (Id.) Moreover, trial counsel asked questions which bore on potential jurors’
willingness to consider various sentencing options, including life imprisonment, in a murder case.
(Doc. 9-20, p. 164; doc. 10-1, pp. 116–17, 185–87, 219–20; doc. 10-2, pp. 13–14, 214–15; doc.
10-3, pp. 60–61, 130–131; doc 10-4, p. 52–54.) Again, every juror affirmed their willingness to
consider voting to impose a life sentence if that penalty were warranted under the circumstances.
(Id.) Crucially, at the time these questions were asked, the potential jurors already knew that one
of the victims was a child. (See doc. 27-20, p. 27.) Therefore, the Court concludes that Petitioner
failed to establish that he was prejudiced by trial counsel’s failure to expressly ask each potential
juror whether he or she would consider a sentence of life imprisonment in a murder case where
the victim was a child. See Brown, 255 F.3d at 1280 (finding that petitioner failed to show
prejudice for trial counsel’s failure to make a “reverse-Witherspoon” inquiry where petitioner
“failed to adduce any evidence that any juror was biased in favor of the death penalty.”); see also
Stanford, 266 F.3d at 455 (finding against prejudice where “there is no evidence that any potential
jurors were inclined to always sentence a capital defendant to death[,] . . . nothing in the record
indicates that counsel’s failure to ask life-qualifying questions led to the impanelment of a partial
jury[,] . . . [and] considering the totality of the evidence, there is no reasonable probability that,
even if defense counsel erred, the sentencer would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.”).
In summary, the Court finds that the state habeas court reasonably determined that
Petitioner failed to show that trial counsel acted deficiently by (1) not presenting mental health
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mitigation evidence, including testimonies from experts such as Dr. James, Dr. Ash, and Dr.
Garbarino; (2) not obtaining testimony from Tony Raby, Linda Herman, and Sean Proctor; (3)
presenting Davis as a witness and producing her memoranda and notes to the prosecution; (4) not
calling VanBrackle as witness to rebut the prosecution’s evidence regarding Petitioner’s lack of
remorse; and (5) not questioning every juror of his or her’s opinion on the death penalty in cases
involving juvenile victims. Moreover, even if Petitioner carried his burden to show his trial
counsel functioned deficiently, the Court finds that the state habeas court reasonably determined
that Petitioner failed to show that these deficiencies prejudiced his defense. After examining the
effect of these supposed deficiencies individually as well as cumulatively, the Court finds that the
effect of trial counsel’s supposed deficiencies during the sentencing phase of trial were not so great
as to create a reasonable probability that Petitioner’s sentence would have changed. 9 This is
especially true considering the cumulative nature of the additional mitigating evidence presented
during the state habeas hearing and the extent of the aggravating factors present in this case, as
discussed in Discussion Section I.A.2, supra. Accordingly, Petitioner failed to show that the state
habeas court’s decision “resulted in a decision that was contrary to, or involved an unreasonable
Petitioner argues that the state habeas court’s decision on prejudice was contrary to clearly established
federal law because the state habeas court failed to address the “cumulative effect of his trial counsel’s
errors.” (Doc. 65, pp. 125–26.) Specifically, Petitioner contends that the “state court considered whether
Mr. Stinski was prejudiced by each independent instance of deficient performance rather than considering
the effect of all of counsels’ errors on the total mix of mitigating and aggravating evidence as Strickland
requires.” (Id. at p. 125.) Petitioner is incorrect because the state habeas court considered the cumulative
effect of trial counsel’s supposed errors at the end of its order. (See doc. 27-20, pp. 80–85.) Moreover,
while it is true that the state habeas court also evaluated the prejudicial effect of each alleged instance of
deficient performance, the Eleventh Circuit explained in Allen v. Secretary, Florida Department of
Corrections that “[t]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.” 611 F.3d
740, 749 (11th Cir. 2010); (see generally doc. 27-20.) That is the case here. Thus, because the state habeas
court analyzed both the prejudicial effect of each claimed error as well as their cumulative effect, the Court
finds that its decision on prejudice was not contrary to clearly established law.
9
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application of, clearly established Federal law” or “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).
II.
Eighth Amendment Cruel and Unusual Punishment
Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII (emphasis
added). Furthermore, in Roper v. Simmons, the Supreme Court held that the imposition of the
death penalty on those who were younger than eighteen years old when they committed their
crimes constitutes “cruel and unusual” punishment in violation of the Eighth Amendment. 543
U.S. 551, 568 (2005). Petitioner, while acknowledging that he was eighteen years old at the time
he committed his crimes, argues that the Eighth Amendment, as interpreted by the Supreme Court
in Roper, bars his execution. (Doc. 65, pp. 133–50.)
A.
Applicable Standard of Review
The parties dispute the applicable standard of review for Petitioner’s Eighth Amendment
claim. Petitioner argues that the AEDPA’s standard of review does not apply to his Eighth
Amendment claim and that the Court should instead review the claim de novo for two reasons: (1)
the state court did not “adjudicate[] . . . the merits” of the Eighth Amendment claim as required by
28 U.S.C. § 2254(d), and (2) his death penalty sentence violates “a substantive rule of
constitutional law that would be retroactive on collateral review under the Supreme Court’s
decision in Teague v. Lane, 489 U.S. 288 (1989).” (Doc. 65, pp. 133–36.)
1.
Adjudication on the Merits
The AEDPA’s deferential standard of review under 28 U.S.C. 2554(d) only applies where
a petitioner’s claim “was adjudicated on the merits in State court proceedings.” 28 U.S.C. §
2554(d). In the state habeas proceedings, the state court determined that the Eighth Amendment
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claim was “non-cognizable” under O.C.G.A. § 9-14-42(a), and, alternatively, that the claim failed
on the merits. (Doc. 27-20, pp. 87–88.) While Petitioner concedes that a “state court’s alternative
holding typically counts as an adjudication on the merits for purposes of Section 2254(d),” he
contends that this rule does not apply “where the state court’s primary holding is that it lacks
jurisdiction over the dispute.” (Doc. 65, p. 134.) Petitioner argues that because the state court’s
“primary holding” was that the Eighth Amendment claim was “non-cognizable,” the state court
lacked jurisdiction to rule on the merits of that claim. (Id. (citing Cognizable, Black’s Law
Dictionary (11th ed. 2019) (“Capable of being judicially tried or examined before a designated
tribunal; within the court’s jurisdiction.”).) Thus, according to Petitioner, the state court failed to
adjudicate the merits of the claim for purposes of Section 2554(d). (Id.)
The only authority Petitioner cites in support of this argument is the Sixth Circuit Court of
Appeal’s decision in Gumm v. Mitchell, 775 F.3d 345, 362 (6th Cir. 2014). In Gumm, the Sixth
Circuit addressed the question of whether the AEDPA’s standard of review applied to a state
appellate court’s alternative merits ruling on the petitioner’s Brady claim after the state appellate
court determined that it lacked subject matter jurisdiction to “entertain” that claim under Ohio
Revised Code § 2953.23(A). 10 See id. at pp. 358, 362; see also State v. Gumm, 864 N.E.2d 133,
141 (Oh. Ct. App. 2006). Interpreting Ohio law, the Sixth Circuit found that Ohio state courts had
(1) “clearly indicated that [Section] 2953.23 denies courts subject matter jurisdiction over claims
Ohio Revised Code § 2953.23(A) imposes a time limit on filing a post-conviction relief petition. It
provides, “whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the [Ohio]
Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in
division (A) of that section or a second petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies.” Ohio Revised Code § 2953.23(A). In State
v. Gumm, the Ohio appeals court held that Section 2953.23(A) deprived it of subject matter jurisdiction
because “the time for filing [petitioner’s] petition expired,” and the record did not demonstrate the existence
of any exceptional circumstances carved out by the statute. 864 N.E.2d at 141; see Ohio Revised Code §
2953.23(A)(1)-(2).
10
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that cannot meet the statute’s stringent requirements” and (2) “interpreted [Ohio law] to conclude
that where a court lacks jurisdiction, any judgment on the merits is rendered void ab initio.”
Gumm, 775 F.3d at 362. Thus, the Sixth Circuit ruled that the Ohio state court did not “adjudicate
[the] claim on the merits” for purposes of Section 2254(d) because the state court did not “address
the issue in an opinion in which the court had jurisdiction over the matter.” Id.
As an initial matter, the Court emphasizes that the Sixth Circuit’s decision in Gumm relied
on its interpretation of Ohio law and is not binding on this Court. See, e.g., Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (“Under the established federal legal
system the decisions of one circuit are not binding on other circuits.”). 11 Moreover, Petitioner
failed to cite to—and the Court’s own search failed to reveal—any binding legal precedent
establishing either that a state habeas court lacks jurisdiction over a petition that does not comply
with O.C.G.A § 9-14-42(a) or that the AEDPA’s standard of review is inapplicable to a state
habeas court’s alternative merits ruling.
Finally, as Petitioner concedes, it is well-established that “a state court’s alternative holding
is an adjudication on the merits” for purposes of Section 2254(d). Raulerson, 928 F.3d at 1001;
(see doc. 65, p. 134.) Indeed, “alternative holdings are not dicta, but instead are binding as solitary
The Court notes that the persuasiveness of Gumm v. Mitchell is diminished by the differences between
the reasoning underlying the Ohio appellate court’s decision regarding the petitioner’s Brady claim in State
v. Gumm and the state habeas court’s ruling on Petitioner’s Eighth Amendment claim in this case. In State
v. Gumm, the Ohio Court of Appeals declined to adjudicate the petitioner’s Brady claim because his postconviction petition was “tardy,” i.e., it was not filed within the time frame established by Ohio Revised
Code Section 2953.23(A). 864 N.E.2d at 141. However, the state habeas court in this case found that
O.C.G.A. § 9-14-42(a) barred Petitioner’s Eighth Amendment claim not because it was untimely but
because Petitioner’s amended habeas petition “fail[ed] to allege a constitutional violation in the proceeding
which resulted in Petitioner’s conviction and sentence.” (Doc. 27-20, p. 87). Then, in its Order regarding
issues of procedural default, the Court subsequently determined that Petitioner did state a cognizable claim
under the Eighth Amendment. (Doc. 60, p. 17.) Thus, the Court finds the Sixth Circuit’s decision in Gumm
v. Mitchell unpersuasive. See generally Riechmann v. Fla. Dep’t of Corr., 940 F.3d 559, 580 (11th Cir.
2019) (applying AEDPA’s deferential standard of review to the Florida Supreme Court’s alternative ruling
on petitioner’s Brady claim which “was barred due to [petitioner’s] failure to raise it on direct appeal.”).
11
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holdings.” Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008); see also Hitchcock v.
Sec’y, Fla. Dep’t of Corr., 745 F.3d 476, 484 n.3 (11th Cir. 2014) (collecting cases). Thus, the
state habeas court’s alternative ruling that Petitioner’s Eighth Amendment claim fails on the merits
constitutes an “adjudication on the merits” for purposes of Section 2254(d), and the AEDPA’s
standard of review, therefore, applies. See Riechmann, 940 F.3d at 580 (“This ‘alternative holding
on the merits’ constitutes ‘an “adjudication on the merits” within the meaning of § 2254(d),’ and
we may not grant federal habeas relief unless the state unreasonably applied Brady.”) (quoting 28
U.S.C. §2254(d)). Considering the lack of binding legal authority for Petitioner’s argument and
the Eleventh Circuit’s clear and established precedent that “a state court’s alternative holding is an
adjudication on the merits” for purposes of Section 2254(d), the Court finds Petitioner’s first
argument unpersuasive. Raulerson, 928 F.3d at 1001.
2.
Teague and 28 U.S.C. § 2254(d)(1).
Concerning Petitioner’s second argument, the Court finds that argument unavailing as well.
Petitioner asserts that the AEDPA standard of review does not apply because his death penalty
sentence violates “a substantive rule of constitutional law that would be retroactive on collateral
review under the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989),” in which the
Supreme Court held that new constitutional rules of criminal procedure generally do not
retroactively apply to convictions that were final when the new rule was announced. (Doc. 65, pp.
134); see Teague v. Lane, 489 U.S. at 306–16. Specifically, Petitioner contends that the Court
should extend the Supreme Court’s ruling in Roper v. Simmons, 543 U.S. 551 (2005), to protect
“all emerging adults” (i.e., eighteen-to-twenty-year-old offenders) from capital punishment rather
than just juveniles. (Doc. 65, p. 136.) Petitioner argues that, because such an extension of the
Roper decision would constitute a new “substantive rule of constitutional law” under Teague, it
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retroactively applies to bar Petitioner’s death sentence and renders the AEDPA’s standard of
review inapplicable. (Id. at pp. 133–136.) The Court addresses this argument in two steps. First,
the Court must determine whether Petitioner’s proposed extension of Roper falls within one of
Teague’s two exceptions, and second, the Court must determine whether a rule that falls under one
of Teague’s exceptions evades the AEDPA’s standard of review.
In Teague, 489 U.S. at 306–16, the Supreme Court held that “a new constitutional rule of
criminal procedure does not apply, as a general matter, to convictions that were final when the new
rule was announced,” unless (1) the new rule is a “substantive rule[] of constitutional law” or (2)
the new rule is a “watershed rule[] of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Montgomery v. Louisiana, 577 U.S. 190, 198 (2016)
(internal citations and quotation marks omitted). Thus, the Teague analysis requires the Court to
perform “three steps.” Caspari v. Bohlen, 510 U.S. 383, 390 (1994); see also Knight v. Fla. Dep’t
of Corr., 936 F.3d 1322, 1334 (11th Cir. 2019). First, the Court must “determine the date when
the petitioner’s conviction became final,” which happens when the Supreme Court “affirms a
conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the
time for filing a certiorari petition expires.” Knight, 936 F.3d at 1334 (citing Clay v. United States,
537 U.S. 522, 527 (2003)). Second, “if the rule that the petitioner wants to apply had not been
announced” prior to the final conviction, the Court must “‘assay the legal landscape’ as it existed
at the time and determine whether existing precedent compelled the rule—that is, whether the case
announced a new rule or applied an old one.” Id. (quoting Beard v. Banks, 542 U.S. 406, 413
(2004)); see also id. (“If —and only if—the holding was dictated by precedent existing at the time
the defendant’s conviction became final, then the rule is not new[.] . . . And that is not a light
test—a rule is not dictated by prior precedent unless it would have been apparent to all reasonable
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jurists.”) (internal quotations and citations omitted). Third, assuming the rule petitioner wants to
apply constitutes a “new rule,” the Court must determine whether the new rule fits within “either
of the two exceptions to nonretroactivity.” Id. at 1336.
Turning to the first step of the Teague analysis, the Supreme Court denied Petitioner’s writ
of certiorari on November 1, 2010. (Doc. 11-15.) Thus, Petitioner’s conviction became final then,
and the rule Petitioner wants to apply in this case—that Roper’s prohibition of the death penalty
applies to “all emerging adults”—had not been announced. Regarding the second step, “[a] case
announces a new rule of constitutional law when it breaks new ground or imposes a new obligation
on the States or the Federal government.” In re Henry, 757 F.3d 1151, 1158 (11th Cir. 2014)
(citing Teague v. Lane, 489 U.S. at 301). In other words, “a case announces a new rule if the result
was not dictated by precedent existing when the defendant’s conviction became final.” Id. (citing
Teague v. Lane, 489 U.S. at 301). Furthermore, a rule may be new if the petitioner seeks to apply
a prior decision’s “old rule” to a novel setting, such that relief would create a new rule by the
extension of the precedent. Stringer v. Black, 503 U.S. 222, 228 (1992); see also In re Hammond,
931 F.3d 1032, 1038 (11th Cir. 2019) (“The Supreme Court has noted that, even where a court
applies an already existing rule, its decision may create a new rule by applying the existing rule in
a new setting, thereby extending the rule ‘in a manner that was not dictated by [prior] precedent.’”)
(quoting Stringer, 503 U.S. at 228); United States v. Reece, 938 F.3d 630, 634 (5th Cir. 2019) (“A
new rule may be created, however, by extending an existing rule to a new legal setting not
mandated by precedent.”) (citing Stringer, 503 U.S. at 222); Matteo v. Superintendent, SCI Albion,
171 F.3d 877, 903 (3d Cir. 1999) (Stapleton, J., concurring) (“[T]he Supreme Court has explained
that the principles of Teague also apply if a petitioner, although relying on an ‘old’ rule, seeks a
result in his case that would create a new rule ‘because the prior decision is applied in a novel
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setting, thereby extending the precedent.’”) (quoting Stringer, 503 U.S. at 222). Here, Petitioner
asserts that the Court should extend the Supreme Court’s ruling in Roper to encompass all
“emerging adults.” (Doc. 65, p. 136.) Such an extension would create a “new rule” for purposes
of the Teague analysis in that it has not been previously dictated by federal law and would extend
Roper’s ruling to a novel set of facts—namely, to an adult offender who possessed the attributes
of a juvenile offender when he or she committed the crime.
Regarding the third step, Petitioner asserts that his proposed rule falls under Teague’s
“substantive rule of constitutional law” exception. (Doc. 65, pp. 135–36.) A rule is “substantive”
if it forbids “criminal punishment of certain primary conduct” or prohibits “a certain category of
punishment for a class of defendants because of their status or offense.” Montgomery, 577 U.S.
at 198. Teague’s first exception requires both federal habeas courts and “state collateral review
courts to give retroactive effect” to new substantive rules of constitutional law. Id. at 198–200.
Here, Petitioner’s proposed rule that all “emerging adults” (i.e., those aged eighteen to twentyyears old) is substantive because, like the rule announced in Roper, it alters the class of persons
eligible for the death penalty. See Montgomery, 577 U.S. at 206 (noting that Roper announced a
substantive rule); Dingle v. Stevenson, 840 F.3d 171, 174 (4th Cir. 2016) (“We readily grant that
Roper announced a substantive rule . . . .”). Based on the above analysis, the Court finds that
Petitioner’s proposed rule applies retroactively under Teague as it would be a new rule of
substantive constitutional law.
While the Court agrees with Petitioner that his proposed extension of Roper falls within
Teague’s first exception, the Court’s analysis does not end there. As noted above, the Court must
also determine whether the AEDPA’s standard of review under 28 U.S.C. § 2254(d)(1) applies to
new rules of constitutional law that fall under one of the exceptions to Teague. As discussed
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above, Teague requires federal and state habeas courts to give retroactive effect to new substantive
rules of constitutional law. However, Section 2254(d)(1) makes clear that
[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 . . . 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.
28 U.S.C. § 2254(d)(1) (emphasis added). Thus, “it is not clear whether a [Section] 2254 petitioner
can rely on a rule that is considered ‘new’ under Teague (even if it falls within a Teague exception)
because the rule will not also be ‘clearly established’ for purposes of [Section] 2254(d)(1).” Martin
v. Symmes, No. 10-cv-4753 (SRN/TNL), 2013 WL 5653447, at *14 n.12, (D. Minn. Oct. 15,
2013), vacated and remanded on other grounds by 820 F.3d 1012 (8th Cir. 2016). Indeed, neither
the Supreme Court nor the Eleventh Circuit have directly answered this question. See Greene v.
Fisher, 565 U.S. 34, 39 n.2 (2011) (“Whether [Section] 2254(d)(1) would bar a federal habeas
petitioner from relying on a decision that came after the last state-court adjudication on the merits,
but fell within one of the exceptions recognized in Teague . . . is a question we need not address
to resolve this case.”); Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 1313 n.6 (11th Cir.
2015) (“[N]either this Court nor the Supreme Court has squarely answered ‘[w]hether [Section]
2254(d)(1) would bar a federal habeas petitioner from relying on a decision that came after the last
state-court adjudication on the merits, but fell within one of the exceptions recognized in
Teague.”).
Petitioner asserts that the Supreme Court’s decision in Montgomery v. Louisiana, 577 U.S.
190 (2016), establishes that “[w]here a petitioner claims relief based on a rule that would fall within
one of Teague’s exceptions, a federal habeas petitioner should be able to obtain relief even if the
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state court decision did not yet violate ‘clearly established’ federal law under AEDPA.” (Doc. 65,
p. 135.) According to Petitioner, the reasoning in Montgomery “suggests that substantive rules
apply retroactively to habeas petitions subject to [Section] 2254(d).” (Id.) In Montgomery, the
Supreme Court held that “when a new substantive rule of constitutional law controls the outcome
of a case, the Constitution requires state collateral review courts to give retroactive effect to that
rule.” 577 U.S. at 200. However, the Court in Montgomery did not clarify how its decision
coincides with the requirements of 28 U.S.C. § 2254(d)(1). Indeed, the majority opinion in
Montgomery did not mention Section 2254(d)(1) or the AEDPA at all.
Furthermore, while the Supreme Court has not addressed the exact issue the Court faces
here, the Supreme Court has stated on multiple occasions that “the AEDPA and Teague inquiries
are distinct.” Horn v. Banks, 536 U.S. 266, 272 (2002) (per curiam); Greene, 565 U.S. at 39. As
the Supreme Court stated in Greene,
The retroactivity rules that govern federal habeas review on the merits—which
include Teague—are quite separate from . . . [the] AEDPA; neither abrogates or
qualifies the other. If [Section] 2254(d)(1) was, indeed, pegged to Teague, it would
authorize relief when a state-court merits adjudication ‘resulted in a decision that
became contrary to, or an unreasonable application of, clearly established Federal
law, before the conviction became final.’ The statute says no such thing, and we
see no reason why Teague should alter AEDPA’s plain meaning.
565 U.S. at 39; see also Edwards v. Vannoy, 141 S. Ct. 1547, 1565 (2021) (Thomas, J., concurring)
(“[T]he Court’s reliance on Teague today and in the past should not be construed to signal that . .
. Teague could justify relief where AEDPA forecloses it. AEDPA . . . . does not contemplate
retroactive rules upsetting a state court’s adjudication of an issue that reasonably applied the law
at the time.”). Moreover, Section 2254(d)(1)’s plain text speaks in the past tense and only allows
a writ to be granted where a decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States. 28
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U.S.C. § 2254(d). If Congress intended for federal courts to grant habeas petitions where a state
decision is contrary to or involves an unreasonable application of now established law, it could
have said so. However, Congress included no such language and did not otherwise create a carve
out within Section 2254(d) for claims based on a rule that would fall within one of Teague’s
exceptions. See 28 U.S.C. § 2254(d); see also Edwards, 141 S. Ct. at 1565 (Thomas, J.,
concurring) (“Section 2254(d)—the absolute bar on claims that state courts reasonably denied—
has no exception for retroactive rights. Congress’ decision to create retroactivity exceptions to the
[AEDPA’s] statute of limitations and to the [AEDPA’s] bar on second-or-successive petitions but
not for [Section] 2254(d) is strong evidence that Teague could never have led to relief here.”).
Finally, Petitioner failed to cite to any case law directly holding that Teague’s substantive rule
exception prohibits a federal habeas court from applying the AEDPA’s standard of review when
reviewing a state court’s adjudication. (See doc. 65, pp. 133–36.)
Based on the above, the Court finds it unlikely that the Supreme Court in Montgomery
intended to abrogate the plain text of the AEDPA when a new substantive rule of constitutional
law retroactively applies to a 28 U.S.C. § 2254 petitioner’s claim under Teague. See Demirdjian
v. Gipson, 832 F.3d 1060, 1076 n.12 (9th Cir. 2016) (“Even if applying a rule retroactively would
comport with Teague, we still must ask whether doing so would contravene [S]ection 2254(d)(1)
by granting relief based on federal law not clearly established as of the time the state court
render[ed] its decision.”) (internal quotations and citations omitted) (emphasis in original); Greene
v. Palakovich, 606 F.3d 85, 101 (3d Cir. 2010) (“[I]t seems a leap to assume that new rules that
are deemed retroactive under Teague would be automatically deemed ‘clearly established Federal
law’ for purposes of [Section] 2254(d)(1).”); Pizzuto v. Blades, No. 1:-5-cv-00516-BLW, 2016
WL 6963030, at *6 (D. Idaho Nov. 28, 2016) (“[T]o be eligible for relief under AEDPA, a
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petitioner must show both that the rule he seeks to invoke is retroactive—either because it is not a
new rule, it is a substantive rule, or that it is a watershed rule of criminal procedure—and that the
state court’s decision violated Supreme Court precedent that was clearly-established at the time of
that decision . . . .”). Therefore, the Court reviews Petitioner’s Eighth Amendment claim under
the AEDPA’s standard of review.
B.
Analysis
Regarding the merits of the Eighth Amendment claim, Petitioner argues that the state court
unreasonably applied clearly established federal law in rejecting his Eighth Amendment claim.
(Doc. 65, pp. 148–50.) Specifically, Petitioner argues that his death sentence is unconstitutional
because (1) the Eighth Amendment, as interpreted by the Supreme Court in Roper v. Simmons,
543 U.S. 551 (2005), bars the execution of all defendants who were eighteen or younger when they
committed their crimes, (doc. 65, pp. 136–45), and (2) the Supreme Court’s decision in Roper
shields Petitioner from the death penalty because he was the “functional equivalent of a juvenile
at the time” he committed his crimes, (id. at pp. 145–48).
The state habeas court rejected Petitioner’s Eighth Amendment claim. The state habeas
court, relying on the Georgia Supreme Court’s decision in Rogers v. State, 653 S.E.2d 31 (Ga.
2007), overruled on other grounds by State v. Lane, 838 S.E.2d 808 (Ga. 2020), first found that
Petitioner’s Eighth Amendment claim failed because “Petitioner himself conceded that he was
eighteen and nine months old at the time of the crimes.” 12 (Doc. 27-20, p. 88.) The state habeas
court continued:
In Rogers v. State, the Georgia Supreme Court held that a defendant’s death sentence did not violate his
“equal protection and due process rights merely because, at age 19 when he committed the crimes, he may
have possessed the same attributes of a juvenile offender that prompted the United States Supreme Court
to prohibit the imposition of the death penalty on offenders under age 18.” 653 S.E.2d at 35 (citing Roper,
543 U.S. at 574).
12
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Petitioner provides no legal support for extending the protections of Rogers v.
Simmons, 543 U.S. 551 (2005), to legal adults. Petitioner was at the age of majority
when he committed his crimes. As a result, Petitioner’s death sentence does not
violate his constitutional rights. Thus, even if this claim was cognizable in habeas,
it would be denied.
(Doc. 27-20, p. 88.)
As discussed above, the Court examines the state habeas court’s rejection of Petitioner’s
Eighth Amendment claim under the AEDPA’s standard of review set out in 28 U.S.C. §
2554(d)(1). See Discussion Section II.A, supra. Under Section 2254(d)(1), the Court cannot grant
a writ of habeas corpus unless the state habeas court’s merits adjudication of a claim resulted in a
decision that was either (1) “contrary to . . . clearly established Federal law,” or (2) “involved an
unreasonable application of[] clearly established Federal law.” 28 U.S.C. § 2554(d)(1). For
purposes of Section 2254(d)(1), only the Supreme Court can establish “clearly established Federal
law.” Id.; see also Dombrowski v. Mingo, 543 F.3d 1270, 1274 (11th Cir. 2008) (“[T]he ‘clearly
established law’ requirement of [Section] 2254(d)(1) does not include the law of lower federal
courts.”). Furthermore, the “clearly established law” requirement “refers to the holdings, as
opposed to the dicta, of [the] . . . [Supreme] Court’s decisions as of the time of the relevant statecourt decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
1.
Contrary to Clearly Established Federal Law
Here, Petitioner failed to show that the state habeas court’s decision was “contrary to”
clearly established federal law.
It is well established in [the Eleventh Circuit] that a state court decision can be “contrary
to” clearly established federal law “if either (1) the state court applied a rule that contradicts
the governing law set forth by Supreme Court case law, or (2) when faced with materially
indistinguishable facts, the state court arrived at a result different from that reached in a
Supreme Court case.”
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Dombrowski, 543 F.3d at 1274–75 (quoting Putman v Head, 268 F.3d 1223, 1241 (11th Cir. 2001).
The United States Supreme Court has not extended Roper’s protections to offenders who, while
legally an adult, possessed a “mental or emotional age” below eighteen when they committed their
crimes. Barwick v. Crews, No. 5:12cv00159-RH, 2014 WL 1057088, at *14 (N.D. Fla. Mar. 19,
2014), affirmed by Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d 1239, 1259 (11th Cir. 2015).
Indeed, Petitioner does not argue as much. (See doc. 65, pp. 148–50.) Therefore, the state habeas
court’s rejection of Petitioner’s Eighth Amendment claim was not contrary to “clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);
see also Dombrowski, 543 F.3d at 1274 (“[W]hen no Supreme Court precedent is on point, we
have held that a state court’s conclusion cannot be contrary to clearly established Federal law as
determined by the U.S. Supreme Court.”); see also Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d
at 1258 (holding that a state supreme court’s denial of a petitioner’s claim that Roper protected
defendants with a mental or emotional age lower than eighteen but a chronological age greater
than seventeen at the time of the crime was not “contrary to” clearly established federal law).
2.
Unreasonable Application of Clearly Established Federal Law
Petitioner instead argues that the state habeas court unreasonably applied clearly
established federal law when it rejected his Eighth Amendment claim. (Doc. 65, pp. 148–50.)
According to Petitioner, the state habeas court “blindly relied on Rogers notwithstanding
significant changes in the law and science” and “fail[ed] to recognize that Roper’s logic bars
[Petitioner’s] execution.” (Doc. 65, pp. 148–49 (emphasis added).) A state court unreasonably
applies clearly established federal law where it “correctly identifies the governing legal rule but
applies [the rule] unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor,
529 U.S. at 408. However, Section 2254(d)(1) “does not require state courts to extend [Supreme
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Court] precedent or license federal courts to treat the failure to do so as error.” White v. Woodall,
572 U.S. 415, 426 (2014); see also Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d at 1259 (“[S]tate
courts are not obligated to extend legal principles set forth by the Supreme Court because the
AEDPA requires only that state courts fully, faithfully and reasonably follow legal rules already
clearly established by the Supreme Court.”) (internal quotations omitted). In White v. Woodall,
the Supreme Court explained:
If a habeas court must extend a rationale before it can apply to the facts at hand,
then by definition the rationale was not clearly established at the time of the statecourt decision. AEDPA’s carefully constructed framework would be undermined
if habeas courts introduced rules not clearly established under the guise of
extensions to existing law.
This is not to say that [Section] 2254(d)(1) requires an identical factual pattern
before a legal rule must be applied. To the contrary, state courts must reasonably
apply the rules squarely established by this Court’s holdings to the facts of each
case. The difference between applying a rule and extending a rule is not always
clear, but certain principles are fundamental enough that when new factual
permutations arise, the necessity to apply the earlier rule will be beyond doubt. The
critical point is that relief is available under [Section] 2254(d)(1)’s unreasonableapplication clause if, and only if, it is so obvious that a clearly established rule
applies to a given set of facts that there could be no fairminded disagreement on the
question.
572 U.S. at 426–27 (internal quotations and citations omitted).
In Roper, “the United States Supreme Court drew a bright line—age 18.” Barwick v.
Crews, 2014 WL 1057088, at *14. Indeed, the Supreme Court squarely held that “the death penalty
cannot be imposed upon juvenile offenders.” Roper, 543 U.S. at 575. While the Supreme Court
acknowledged that “[t]he qualities that distinguish juveniles from adults do not disappear when an
individual turns [eighteen],” the Supreme Court also stated that “a line must be drawn” and drew
that line at eighteen. Id. at 574. Because Petitioner was eighteen years and nine months old when
he committed his crimes, Roper does not apply. Furthermore, Petitioner has not cited to any legal
authority extending the protections of Roper to those who committed crimes between the ages of
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eighteen and twenty or to those who committed crimes at the chronological age of eighteen but a
mental or emotional age younger than eighteen. Indeed, in 2015, the Eleventh Circuit rejected a
similar argument in Barwick v. Secretary, Florida Department of Corrections, and held that a state
supreme court did not unreasonably apply clearly established federal law when rejecting the
petitioner’s argument that Roper’s protection should be extended to those who are chronologically
older than seventeen but mentally or emotionally younger than eighteen. 794 F.3d at 1258–59. 13
Based on the above, the Court concludes that the state habeas court did not unreasonably apply
clearly established federal law when it rejected Petitioner’s Eighth Amendment claim.
III.
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.” Moreover, pursuant to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the Court “must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” The United States Supreme Court has stated that “[t]he COA inquiry . .
The Court also notes that the state habeas court’s reliance on the Georgia Supreme Court’s decision in
Rogers was not “blind.” Petitioner overlooks the fact that in Rogers, the Georgia Supreme Court
straightforwardly applied Roper to reject an argument similar to the one Petitioner makes in this case: that
Roper protects young adult offenders who had similar attributes to juvenile offenders when they committed
their crimes. See Rogers, 653 S.E.2d at 660; (see also doc. 27-20, p. 88.) Like Petitioner, the petitioner in
Rogers committed his crime when he was younger than twenty-years old and possessed juvenile
characteristics. Rogers, 653 S.E.2d at 660. Furthermore, Petitioner fails to cite any authority which
prohibits a state habeas court from relying upon a state supreme court’s application and interpretation of
clearly established United States Supreme Court precedent. Thus, the Court cannot say that the state habeas
court “unreasonably applied clearly established law” when it rejected Petitioner’s Eighth Amendment claim
based on the Georgia Supreme Court’s application of Roper to circumstances like Petitioner’s.
13
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. is not coextensive with a merits analysis.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). Rather,
“[a]t the COA stage, the only question is whether the applicant had 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 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
Here, Petitioner has failed to make a substantial showing of a denial of a constitutional
right with respect to his ineffective assistance of counsel claims or his Eighth Amendment claim.
The Court finds that no jurists could disagree with the Court’s resolution of the issues presented
in any of the claims Petitioner properly raised. Accordingly, the Court DENIES Petitioner a COA
for any of his claims.
CONCLUSION
Based on the foregoing, the Court DENIES Petitioner’s Petition for Writ of Habeas
Corpus. (Doc. 1.) Further, the Court DENIES Petitioner a Certificate of Appealability and
DIRECTS the Clerk of Court to close this case.
SO ORDERED, this 15th day of December, 2021.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
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