Lee v. Upton
Filing
98
ORDER DENYING Lee's 29 Amended Petition for Writ of Habeas Corpus. Signed by Judge Lisa G. Wood on 9/19/2017. (csr)
Sn tl^e ?l9ntteb ^tatesi Btsitnct Court
tor tl^e ^outl^em IBiotrict ot (Georgia
9^aptrooo Btlitoton
JAMES ALLYSON LEE,
Petitioner,
No.
V.
STEPHEN UPTON,
5:10-CV-17
Warden,
Respondent.
ORDER
State capital prisoner
habeas
corpus.
The
James Allyson Lee petitions
petition
is
due
to
be DENIED for
for
the
following reasons.
BACKGROUND
The Underlying Crime and Conviction^
Lee and an accomplice broke into a gun store in
Toombs County[, Georgia] on May 25, 1994, and stole
several guns,
including a
ten millimeter Clock
pistol.
Lee and his girlfriend then drove to Pierce
County[, Georgia] planning to kill Lee's father and
steal his Chevrolet Silverado pickup truck.
After
learning that his father was not home but that his
father's
live-in girlfriend,
Sharon Chancey,
was
there. Lee had his girlfriend lure Chancey from the
home in the early morning hours of May 26 by
claiming that
Lee was
stranded nearby in his
girlfriend's broken down Toyota automobile.
When
Chancey pulled up to the Toyota in the Silverado and
^ This Court presumes the Georgia Supreme Court's factual determinations to
be correct unless
§ 2254 (e) (1) .
AO 12k
(Rev. 8/82)
rebutted by clear and convincing evidence.
28
U.S.C.
got out, Lee shot her in the face and threw her in
the
back
of
Silverado
to
the
a
Silverado.
secluded
After
area
in
driving
Charlton
the
County,
[Georgia,]
he dragged Chancey into the woods,
removed two rings from her fingers, and shot her two
more times when she grabbed his arm.
After
replacing the Silverado's license plate with the
license
plate
from
the
Toyota,
Lee
and his
girlfriend drove the Silverado to Florida.
While
traveling in the Silverado with two male friends at
about
11:30
that
night.
Lee
was
stopped
by
law
enforcement for a broken taillight.
Hall V.
Lee,
684 S.E.2d 868,
871-72
(Ga.
2009).
'MWJhen Lee
was stopped . . ., he placed a cocked, loaded gun that he had
stolen in his companion's lap and told the companion to get
out and
^shoot
the
cop'
while he
^cover[ed]'
Id. at 881.
with another stolen, loaded gun."
did not
do
the companion
The companion
so.
[Lee] was arrested after a check revealed that the
Silverado was stolen.
The police recovered from the
Silverado Chancey's purse and identification and the
Clock pistol, which later was determined to be the
murder weapon.
Lee made several incriminating
statements
to
police,
including
videotaped
statements at the scenes of the shootings describing
how the
Id. at 872.
for
two
crimes
Lee ^'was on probation at the time of the crimes
counts
of
stealing a truck .
Fifteen
Lee,
acting
and fled
to
recaptured.
occurred.
.
burglary
.
^^months
Lee
the
escaped
.
^'made
.
for
theft
by
taking
for
Id. at 880.
after
alone,
Florida
."
and
.
crimes
from
."
several
Id.
while
jail,
at
awaiting
stole
880-81.
threatening
a
trial.
vehicle,
When
he
was
statements
to
police, including that he still wanted to kill his father and
that, if he were ever given the opportunity, he swore that he
would
kill
the
detective
and
the
[Georgia
Investigation] agent assigned to his case."
Bureau
of
Id. at 881.
A jury convicted Lee of malice murder, armed robbery, and
possession of a firearm during the commission of a crime on
June 4, 1997.^
also
Dkt.
Lee v. State, 514 S.E.2d 1, 2 (Ga. 1999); see
No.
11-14
death on June 6,
at
1997.
46:22-25,
Hall v.
also Dkt. No. 12-3 at 85:10, 94.
July 3,
Lee V.
1997,
State,
53.
Lee was
Lee,
684 S.E.2d at 871;
Lee moved for a new trial on
514 S.E.2d at 3 n.l.
Id.
The motion was denied on
Lee's conviction was unanimously upheld
by the Georgia Supreme Court on direct appeal.
The U.S.
See generally
Supreme Court denied Lee's petition for a writ
of certiorari on November 15,
January 24, 2000.
den'd 528 U.S.
see
and amended that motion on February 19, 1998.
April 15, 1998.
id.
sentenced to
1999,
and denied rehearing on
Lee v. Georgia, 528 U.S. 1006 (1999), reh'q
1145
(2000).
Habeas History
Lee filed a petition for a writ of habeas corpus in the
Superior Court of Butts County on August 4,
20-16
at
2.
He
amended
it
on April
16,
2000.
2001.
Dkt.
Id.
No.
The
Superior Court held an evidentiary hearing on August 17, 2001.
^ His conviction for felony murder was vacated by operation of law.
State,
514 S.E.2d 1,
3 n.l
(Ga.
1999).
Lee v.
Id.
It
granted
generally id.
Lee's
2010.
on
March
12,
2009.
See
The Georgia Supreme Court unanimously reversed
on November 2, 2009.
Lee
petition
filed
Hall v. Lee, 684 S.E.2d 868.
his
federal
Dkt. No. 1.
habeas
petition
on
February
He amended it on September 16, 2010.
5,
Dkt.
No.
29.
Lee filed his merits brief on March 16,
No.
80.
The State filed its response in opposition on July
28,
2015.
Dkt.
No.
2015.
Dkt.
90.
No.
87.
Lee replied on October 13,
He filed a
Dkt. No. 92.
2015.
Dkt.
2015.
supplemental brief on October 22,
The petition is now ripe for disposition.
LEGAL
STANDARD
Because Lee's federal petition was filed after April 24,
1996, this case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (^^AEDPA") .
1297,
1312
{11th
Cir.
2008).
determination of factual
unless
the petitioner
evidence."
28 U.S.C.
Under
AEDPA,
state
courts'
issues are ^'presumed to be correct"
rebuts
§
Payne v. Allen, 539 F.3d
them "''by clear and convincing
2254(e)(1).
Their legal determinations can only be rejected if they
^^resulted
in
application
a
decision
of [
]
that
clearly
.
.
.
involved
established
an
unreasonable
Federal
law,
as
determined by the Supreme Court of the United States" or ^^was
based on an unreasonable determination of the
facts
in light
of the evidence presented in the State court proceeding."
Id.
§ 2254 (d) .
The first prong is only satisfied if the state
court ^'unreasonably applies [the governing legal] principle to
the facts of the prisoner's case."
U.S.
362,
413
federal
law
federal
law."
that a
Williams v.
Taylor,
529
(2000).
of
different
is
"[A]n unreasonable application
from
of
Id.
at
410.
an incorrect application
"A state
court's
determination
claim lacks merit precludes federal habeas relief so
long as fairminded jurists could disagree on the correctness
of the
state court's decision."
U.S. 86, 101 (2011)
Harrington v.
Richter,
562
(quotation marks and citation omitted).
AEDPA deference does not apply to claims that the state
habeas
V.
courts
Bell,
do
556 U.S.
not
reach—these
449,
472
are
reviewed de
novo.
Cone
(2009).
DISCUSSION
Lee's petition must be denied.
(1)
ineffective
instructions;
83
(1963);
Eighth and
(4)
assistance
(3)
a
of
Lee alleges five errors:
counsel;
violation of Brady v.
trial-court errors;
and
(2)
improper
Maryland,
jury
373 U.S.
(5) violations of the
Fourteenth Amendments by imposition of the death
sentence in this case.
Dkt. Nos.
29,
44.
This Court finds no
basis for granting habeas relief.^
^ Most of Lee's claims fail for reasons other than exhaustion requirements.
The State raises exhaustion repeatedly in its brief.
Dkt. No. 87 at 16265, 179-80, 183-86, 224-26.
But in its answer to the currently operative
petition, the State only characterized one issue—one not pressed upon by
Lee here—as unexhausted.
Dkt. No. 30 at 8.
It specifically classified as
I. LEE'S INEFFECTIVE-ASSISTANCE CLAIMS FAIL.
Lee
unsuccessfully
representation he
raises
three
issues
with
the
received at trial and on direct appeal:
failure to investigate into and adequately present mitigating
evidence,
failure
to
object
to
biblical
references
in
the
State's closing argument, and various other shortcomings.
An ineffective-assistance claim cannot succeed unless the
petitioner shows both (1)
that his attorney's performance was
objectively unreasonable, by a preponderance of the evidence,
and
(2)
a
reasonable
probability
that
the
outcome
of
his
proceeding would have been different but for that deficient
performance.
13
of
Chandler v. United States, 218 F.3d 1305, 1312-
(11th Cir.
an
2000)
attorney's
(en banc).
performance
professional norms."
688
(1984).
The objective reasonableness
is
gauged
by
Strickland v. Washington,
^'prevailing
466 U.S.
668,
This inquiry is commonsensical and holistic,
as
"[n]o particular set of detailed rules for counsel's conduct
can
satisfactorily
circumstances
legitimate
take
faced
by
decisions
''reviewable" all
of the
account
defense
regarding
issues
of
the
counsel
how
i t now claims
or
best
variety
the
to
range
represent
are unexhausted,
except
one aspect of ineffective assistance.
Id. at 16, 19-20, 22, 24-25.
answer thus expressly waived exhaustion except as to that one issue.
28
U.S.C.
§
2254(b)(3);
cf.
Dorsey
v.
Chapman,
262
F.3d
1181,
of
of
a
for
The
See
1186-87
(11th Cir. 2001) (deeming state to have expressly waived exhaustion by
expressly declining to raise it in answer, despite raising it in appellate
briefing).
The Court hereby accepts that waiver.
See Thompson v.
Wainwright, 714 F.2d 1495, 1508-09 (11th Cir. 1983) (affording district
courts discretion to accept waivers of exhaustion).
criminal
defendant."
Id.
at
688-89.
It
is
also
^^highly
deferential," with a "strong presumption" of reasonableness.
Id. at 689.
Performance is only unreasonable if "no competent
counsel would have taken the action" at issue.
F.3d at
218
1315.
As
for
burden.
prejudice,
Sullivan v.
2006) .
some
Chandler,
the
petitioner
DeLoach,
again
459 F.3d 1097,
bears
1109
a
high
(11th Cir.
"It is not enough . . . to show that the errors had
conceivable
Strickland,
effect
466 U.S.
on
at
the
693.
outcome
Rather,
of
the
proceeding."
the petitioner has to
show "that the decision reached would reasonably likely have
been different
Under
these
contentions
absent
the
standards
[counsel's]
and
AEDPA
errors."
deference,
Id.
each
at
of
696.
Lee's
fails.
A. Lee's Mitigating-Evidence Contention Fails.
Lee unsuccessfully argues that his trial counsel did not
adequately
research
application for a
and
present
mitigating
evidence.
An
writ of habeas corpus will not be granted
unless the adjudication of the claim involved an unreasonable
application of clearly established federal law or was based on
an
unreasonable
determination
of
the
facts
in
light
evidence presented in the state court proceeding.
2254 (d) (l)-(2).
issue
on
its
The
merits.
Georgia
Supreme
Hall
Lee,
v.
684
Court
S.E.2d
of
the
28 U.S.C.
addressed
868,
876
§
this
(Ga.
2009).
was
This Court can only reject that Court's decision if it
so
unreasonable
an
application
of
a
U.S.
Supreme
Court holding that no fairminded jurist could agree with it.
Hill V.
Humphrey,
also Bobby v.
662
F.3d 1335,
1347
(11th Cir.
Dixon,
565 U.S.
23,
32-33
Schriro v. Landriqan,
550 U.S.
465,
473
Here,
the
decision
reasonability.
The
was
Georgia
(2011)
2011);
see
(per curiam) ;
(2007).
within
the
Supreme
wide
Court
realm
of
permissibly
sidestepped the question of performance, holding that Lee had
not shown prejudice.
Hall v. Lee, 684 S.E.2d at 876; see also
Strickland, 466 U.S. at 697
ineffectiveness
prejudice
claim
. . .,
on
that
sentencer
death.'"
and
Lee,
at 695).
evidence."
534
To
that
of
should
lack
be
of
sufficient
followed.").
standard as being whether,
but
It
for
have
concluded
the
circumstances
mitigating
that
did
balance
not
of
warrant
684 S.E.2d at 876 (quoting Strickland, 466 U.S.
It further noted its duty to "reweigh the evidence
in aggravation
510,
ground
there was a reasonable probability that the"
'"would
aggravating
the
course
correctly identified the
counsel's errors,
(^'If it is easier to dispose of an
against
Id. at 876-77
(2003)).
apply
Lee's
the
available mitigating
(quoting Wiggins v.
Smith,
539 U.S.
It used the right framework.
those
trial
totality of
standards,
counsel
the
Court
began by observing
presented mitigating
8
evidence
that
Lee's
childhood was
characterized by
violence,
abandonment,
Lee,
S.E.2d at
684
poverty,
and alcohol and drug use."
877.
Some
Id.
neglect and abuse.
''instability,
of the
at 877-78.
Hall v.
evidence mentioned
There was also expert
evidence that Lee had attention deficit hyperactivity disorder
("ADHD"),
less
which made him "impulsive," "overly active," and
able
behavior.
[Lee's]
to
Id.
"regulat[e]
at 878-79.
feelings
abandonment"
of
toward
testified that
and
frustration,
father.
Lee could thrive
such as a prison.
his
emotions
and
That condition "was aggravated by
anger,
his
control"
Id.
in a
at
resentment,
879.
The
and
expert
structured environment,
Id. at 878.
The Court then assessed the aggravating evidence.
The
State had a strong case against Lee, given his "incriminating
statements to his companions and to the police."
The
jury
specifically
found
statutory
Id. at 880.
aggravators:
"Lee
committed the murder while engaged in the commission of armed
robbery and kidnapping with bodily injury"; "he committed the
murder
for
himself
or
another
for
the
purpose
of
receiving
money or any other thing of monetary value"; and "the offense
of
murder
inhuman
in
was
outrageously
that
it
victim before death."
or
involved
Id.
non-statutory aggravating
wantonly
an
vile,
aggravated
at 880 n.7.
evidence.
horrible,
battery
to
or
the
There was also serious
Most
disturbingly,
when
Lee was stopped after the murder,
he gave his companion a
stolen gun and '''told the companion to get out and 'shoot the
cop' while [Lee] 'cover[ed]'" him "with another stolen, loaded
gun."
Id.
at 881.
At the time of the crime.
Lee was on
probation for two burglary counts and stealing a truck.
at
880.
Before
vehicle,
trial.
and fled
to
Lee
"escaped
Florida,"
then
from
jail,
threatened
stole
to
kill
father and law-enforcement officials working his case.
880-81.
a
a
his
Id. at
Once, Lee "had violated his probation and had stolen
car and viciously beaten a man because he
blood,
Id.
a lot of blood.'"
The
Georgia
Supreme
'wanted to see
Id.
Court
reweighed the
evidence
Seeking habeas.
together with the habeas evidence.
trial
Lee had
brought forward an affiant testifying that Lee's mother would
regularly physically assault him,
where
she
did so,
evidence
of
evidence of four
instances
her drug-related dysfunction,
evidence that this impacted his development by causing him to
behave like a dog, and more specific evidence of his childhood
poverty.
Id.
at
879-80.
Lee also
supplemented his mental-
health evidence with a new diagnosis of post-traumatic stress
disorder
^ The
"Lee's
{"PTSD"),
Georgia
.
.
.
Supreme
expert
based
Court
on
his
childhood.
discounted that
failed to connect
[it]
diagnosis
to the
Id.
at
in part
crimes."
Id.
881.^
because
at
882.
At first glance, this appears to be in tension with Tennard v. Dretke, 542
U.S. 274, 287 (2004).
("[W]e cannot countenance the suggestion that low
IQ evidence is not relevant mitigating evidence . . . unless the defendant
10
still,
the
Court
probability
sentence."
that
Id.
This
held
Lee
that
would
there
have
was
''no
received
reasonable
a
different
at 881; see also id. at 882.
Court
cannot
find
that
unreasonable an application of U.S.
this
holding
was
so
Supreme Court precedent
that no fairminded jurist could agree with it.
The relevant
U.S.
Supreme Court precedent establishes only general rules,
like
the
need
differently
habeas
deny
that
probability
to
the
and
the
evidence.
relief
unless
sentence
need
This
to
would
reweigh
means
652,
even
"more
664
(2004).
leeway"
also establishes a
nexus
is
a
have
all
state
substantial element of judgment."
U.S.
there
of
courts
reasonable
turned
the
trial
must
use
out
and
"a
Yarborouqh v. Alvarado, 541
AEDPA respects this by affording them
than
usual.
Id.;
[between it and]
see
also
the crime.").
Knowles
v.
But in context,
it is clear that the Georgia Supreme Court did not hold that the diagnosis
was irrelevant per se.
The comment at issue came in response to Lee's
argument that the PTSD diagnosis was "more compelling" than the ADHD one.
Id.
The Court first observed that the expert made a connection between
Lee's ADHD diagnosis and the crimes at trial—but did not do so in habeas
with regard to the PTSD diagnosis.
Id.; see also id. at 881 ("[H]e would
have diagnosed Lee as also suffering from [PTSD], would have testified to
that diagnosis, and also would have testified to and explained how the
chaos, neglect, and abuse in Lee's life ^had a clear nexus to the crimes
in this case.'
However, [he] did not explain how Lee's PTSD was related
to the murder.
Although he noted 'the vague flashbacks that [Lee]
recalled during [his] interview with him,' [he] did not claim that, at the
time of the murder. Lee was experiencing a flashback or was in a
disassociative [sic] state as a result of his PTSD.").
Only then did it
conclude that there was no prejudice from the missing PTSD diagnosis.
Id.
The Court takes this to mean that the PTSD diagnosis would not have
added any weight because the ADHD one was similar, other than being more
closely
related
to
Lee's
crime.
This
Court's
confidence
in
its
interpretation is bolstered by the Georgia Supreme Court's explicit
reiteration immediately before the statement at issue of the need to
reweigh all of the evidence.
does not
See id.
violate Tennard.
11
Therefore,
the "connection" comment
Mirzayance,
556
U.S.
Ill,
123
(2009)
(deeming
assistance claim ^Moubly deferential") .
ineffective-
What is more,
this
Court's focus is not on the Georgia Supreme Court's opinion—it
is
on
''whether
application"
Warden,
the
of
GDCP,
decision
U.S.
Supreme
726 F.Sd 1243,
Gissendaner v.
.
Seaboldt,
to
that
state court
let
alone
1255
can
.
an
unreasonable
holdings.
(11th Cir.
1329
Bishop
2013);
v.
see also
(11th Cir.
2013)
., not on the reasoning that
nothing
in
the
statute
requires
a
to accompany its decision with any explanation,
adequate
cf.
Wright
1255
forward
was
735 F.3d 1311,
and
an
omitted));
1245,
result,
.
Court
("AEDPA focuses on the result .
led
.
(11th
Cir.
rationales
examine
for
their
approach that
is
one."
v.
(quotation
Sec'y
2002)
for
Dep't
("Requiring
their
thinking
marks
decisions
smacks
of
and
Corr.,
citation
278
state
courts
that
federal
so
of
a
'grading
outmoded in the post-AEDPA era."
F.3d
to
put
courts
papers'
(citation
omitted)).
U.S.
Supreme Court and Eleventh Circuit holdings favoring
petitioners
which
the
do
not
Georgia
unambiguously
Supreme
Court
foreclose
arrived.
the
Each
decision
was
at
either
followed by that Court or is distinguishable:
•
V. Lee,
The Court in fact applied Strickland's test.
684 S.E.2d at 872-73 & n.l,
12
876-77.
Hall
•
Sears v.
Upton,
was not an AEDPA case.
Prison,
834 F.3d 1227,
dissenting),
also
cert.
561 U.S.
See Wilson v.
1243-44
granted,
distinguishable
137 S.
because
was
There,
calculated
to
(2010)
Warden,
(11th Cir.
the
Ct.
trial
there was entirely different from,
habeas evidence.
945
(per curiaiti) ,
Ga.
2016)
1203
Diagnostic
(Jordan,
(2017).
It is
mitigation
evidence
and contradicted by,
[c] ounsel's mitigation theory .
portray
the
adverse
impact
of
petitioner's] execution on his family and loved ones."
561 U.S.
at 947.
In particular,
J.,
the
.
.
[the
Sears,
counsel ^^presented evidence
describing [the petitioner's] childhood as stable, loving, and
essentially without incident."
Id.
The jury never heard that
the petitioner's parents were physically and verbally abusive,
they divorced when he was young, a cousin sexually abused him,
and his brother—a convicted drug abuser and dealer—introduced
him to a criminal lifestyle.
told about
the petitioner's
^•"appear[ed]
to be
Id.
at 948,
[caused by]
both
of
by contrast,
the
uncovered
proceedings:
in
same
which
significant frontal lobe brain
Id. at 945-46.
the mitigation evidence at trial was
species
greater
Nor was it
severe cognitive defects,
damage" and teenage substance abuse.
Here,
950.
as
detail
and
compatible
during
the
with
state
what
was
habeas
trial counsel readily told the jury that Lee's
upbringing was unstable.
See Dkt. No.
13
12-3 at 33:23-34:7
(^'We
brought in his mother.
The mother, when [Lee] was born, was a
19-year-old welfare mother.
a lot of them.
could.
I
She had her own problems, she had
She attempted to raise [Lee] the best way she
think she tried and failed when it
him a nurturing,
enriching home.
came to giving
She failed to give him any
kind of discipline or any kind of structure at an early age,
but she tried the best she could, and I'm not here to belittle
his mama,
but it wasn't the most ideal environment
.
.
.
."
(emphases added)).
•
AEDPA
deference
analysis in Johnson v.
643
F.Sd
907,
930
distinguishable
The
Eleventh
minimis
mitigating
Cir.
reasons
Circuit
not
Secretary,
(11th
for
did
2011).
That
those
prejudice
evidence,
to
the
prejudice
Department of Corrections,
like
found
apply
but
case
presented
despite
it
is
did
so
by
more
in
further
Sears.
than
de
light
of
contradictions between the trial and habeas evidence—not
the lack of detail present here.
just
Trial counsel there brought
forward evidence that the petitioner's parents were ^^cold and
uncaring,
something
couple."
Id. at 936.
in. the
nature
In fact,
of
the
^American
Gothic'
they were raging alcoholics—so
much so that the petitioner was put into an orphanage when his
father went on a
the
three-month drinking binge in another state,
petitioner's mother attacked his
knife,
and
the
petitioner
was
14
father
singled
out
with
for
a
butcher's
particularly
severe
beatings.
anything
about
Id.
the
at
936-37.
petitioner's
The
jury
mother's
never
repeated
heard
suicide
attempts—one of them discovered by the petitioner when he was
a
child.
Id.
later
petitioner
It
did
found
not
anything
about
mother,
his
know
dead
an
of
clutching a
photograph of his dead brother,
overdose.
Id.
at
937.
The
jury
also
who
how
the
overdose,
died of an
heard
that
the
petitioner's grandparents '"were caring and nurturing people,"
whereas
habeas
evidence
showed
them
to
have
inflicted
horrifying physical, emotional, and psychological abuse on the
petitioner.
mother
Id.
was
violence,
Here, by contrast, the jury heard that Lee's
addicted
abuse,
to
drugs,
and
that
parental
domestic
and neglect were present in Lee's childhood.
It was only deprived of some (undeniably disturbing) details.
•
curiam) ,
Porter
can
be
v.
McCollum,
distinguished
mitigating evidence at
trial.
nothing that would humanize
558
as
U.S.
featuring
The
30
only
jury there
[the petitioner]
(2009)
de
(per
minimis
^'heard almost
or allow them to
accurately gauge his moral culpability," although he was a war
hero who struggled to readjust to life at home, with childhood
abuse
lacked
and a
the
brain abnormality.
sort
of
Id.
aggravating
including Lee's attempt to have a
at
41.
evidence
Besides,
Porter
present
here,
police officer shot,
threats against law enforcement, and escape from jail.
15
death
•
Rompilla
V.
Beard,
545
U.S.
374
apply AEDPA to the question of prejudice.
(2005),
did
Id. at 390.
not
It is
also distinguishable because the jury there heard only minimal
mitigating
evidence:
^^[F]ive
of
[the
petitioner's]
family
members argued in effect for residual doubt, and beseeched the
jury
for
mercy,
saying
they
innocent and a good man."
the
petitioner's
believed
[the
Id. at 378.
extensive
history
petitioner]
Left unpresented was
of
childhood
physical
abuse, which included being regularly beaten and '''locked .
in a
small wire mesh dog pen that was
filled."
Id.
at
392.
There
was
Williams v.
Taylor,
. .
filthy and excrement
also
no
hint
petitioner's diagnosis of organic brain damage.
•
was
529 U.S.
362
of
the
Id.
(2000),
did not
apply AEDPA deference to the issue of prejudice because the
state supreme court unreasonably applied the law in rejecting
what
it
called
determination.'"
"undue
Id.
at
'emphasis
397
(emphasis
Cullen V. Pinholster, 563 U.S. 170, 202
Williams).
Besides,
Williams
on
omitted);
(2011)
featured
mere
outcome
see
also
(distinguishing
minimal
mitigation:
the jury heard that the petitioner was "a 'nice boy' and not a
violent person," and that in a robbery,
"he had removed the
bullets from a gun so as not to injure anyone."
Id. at 369.
But the petitioner had been so severely abandoned as a child
that his parents were imprisoned for criminal neglect, he had
16
been placed in an abusive foster home,
he had a borderline
intellectual disability, and he was a model prisoner.
Id. at
396.
•
Ferrell
v.
Hall,
640
F.Sd 1199
did not apply AEDPA to prejudice.
(11th Cir.
Id. at 1226.
2011),
It is also
distinguishable because the evidence the counsel presented in
mitigation was de minimis.
The jury there heard five of the
petitioner's family members testify for a total of 26 minutes
that they did not believe he was guilty,
he deserved mercy,
and he ''had committed himself to Christ before the murders."
Id.
at 1206.
The counsel there failed to discover that the
petitioner suffered from extensive mental health problems and
diseases including organic brain damage to the frontal lobe,
bipolar disorder, and temporal lobe epilepsy.
Id. at 1203.
They also failed to discover that the petitioner had attempted
suicide
as
a
child,
that
his
conduct
was
not
volitional, or that his father physically abused him.
entirely
Id.
Neither the jury nor the sentencing judge was ever
told, because defense counsel never discovered that
[the
petitioner]
disabling
mental
including organic
suffer[ed]
from
extensive,
health
problems
and
diseases
brain damage to the frontal
lobe, bipolar disorder, and temporal lobe epilepsy.
Nor did they learn that the defendant had attempted
suicide at age eleven, or that because of these
mental
health
issues,
[he]
exhibit[ed]
impulsivity and decreased sound judgment;
increased
that his
conduct was not entirely volitional; or that his
judgment and mental flexibility were significantly
impaired by organic brain damage.
Nor, finally were
17
they
ever
abusive
told
to
that
his
[his]
father
children,
was
physically
especially
to
[the
petitioner], waking them in the middle of the night
to beat them (sometimes after stripping them naked)
with razor strops, fan belts, and old used belts;
that the family was repeatedly evicted from their
homes and hungry, and lived in fear of those to whom
the father owed gambling debts;
or that
[the
petitioner's]
mother
suffered
from
clinical
depression, suicidal ideations, rage blackouts, and
urges to physically injure her children.
Id.
at
1203.
•
Wiggins
v.
Smith,
539
U.S.
distinguishable because of de minimis
The
petitioner's
convictions."
jury
Id.
at
knew
only
537.
510
(2003),
trial evidence,
that
he
^^had
is
too.
no
prior
He had suffered physical abuse,
poverty, sexual molestation, several rapes, and homelessness.
Id. at 535.
Additionally, unlike Lee, the Wiggins petitioner
"[did] not have a record of violent conduct."
•
DeBruce
Corrections,
v.
758
distinguishable
Commissioner,
F.3d
because
1263
it
Id.
Alabama
(11th
Department
Cir.
featured
(Tjoflat,
J., dissenting)
2014),
relatively
aggravation compared to that present here.
Id.
of
is
little
at 1286-87
(identifying the two aggravators as
a second-degree robbery and the capital murder for which the
petitioner was convicted).
misled
into
thinking
childhood"
that
"was
successful
student
the
In addition,
petitioner
otherwise
who
"had
unremarkable"
had attended
18
the jury there was
an
and
college."
impoverished
"had been
Id.
at
a
1276
(majority opinion).
Beyond
a
passing mention
of
a
disorder for which the petitioner had been treated,
mental
the jury
was not made aware of the petitioner's brain-damage diagnosis,
his
seizure-like
blackouts,
that
he
had
been
regularly
attacked by gangs as a child, that he had abused substances as
a
teenager,
his
suicide attempts,
or that
his
sister would
regularly beat him and punish him by withholding food.
1270,
1276.
introduce
Here,
.
.
.
counsel
did
available
not
totally
mitigating
Id. at
"fail[
evidence
of
defendant's mental impairment and history of abuse."
1277
(referring
evidence."
to
a
(emphasis
^^complete
added)).
diagnosed with ADHD
deprived
The
affecting
control,
S.E.2d a t
•
and
had
a
omission
his
jury
of
knew
childhood.
that
Hall
v.
to
the
Id.
at
type
this
decision-making
]
of
Lee
and
was
self-
Lee,
684
878-79.
Williams v.
Allen,
542 F.3d 1326
(11th Cir.
2008),
did not apply AEDPA to the question of prejudice, as the state
appellate
prejudice
evidence
court
"primarily"
did
petitioner's]
at 1343.
unreasonably
not
applied
because
refute
the
responsibility for
the
"the
.
in
additional
evidence
.
law
.
finding
no
mitigating
establishing
capital murder."
[the
Id.
The Georgia Supreme Court made no such error here.
Hall V. Lee,
684 S.E.2d at 876-77,
found prejudice due to five
882.
factors,
19
Beyond that, Williams
only the first of which
is
relevant
beaten,
here:
whipped,
used drugs,
the
jury heard that
the
and choked by his father,
beat the petitioner's mother,
intellectually
petitioner was
disabled
daughter.
who also drank,
and raped his own
Id.
at
1329.
The
petitioner later brought forward evidence that ^^the violence
[he]
experienced
frequency
and
sentencing,"
food
.
.
as
a
child
severity—the
and
his
and clothing,
needs,
.
far
exceeded—in
punishments
"parents
neglected
provided
his
basic
both
described
him with
hygiene
at
inadequate
and medical
permitted him to roam the neighborhood unsupervised,
and ignored his deteriorating academic performance."
Id.
1342-43.
parent
who
Besides
was
this,
frequently
his
mother
absent."
was
Id.
"a
at
1342.
Circuit deemed this evidence "relevant."
But
it
found
prejudice
after
neglectful
The
Eleventh
Id.
considering
evidence together with other factors
at
the
omitted
absent here.
The
jury
there recommended against imposition of the death penalty by a
vote
of
nine
to
three.
Id.
unanimously sentenced Lee to
rejected the
at
1330.
death.
In Williams,
circumstance—one
that
of the underlying capital murder charge."
highly
were
the
the
jury's recommendation "on the basis of a
statutory aggravating
there
Here,
multiple
significant
statutory
aggravators
non-statutory
20
ones.
[wa]s
an
The
a
judge
single
element
Id. at 1343.
and
jury
Here,
variety
Williams
of
judge
'Miscount[ed] the significance of [the petitioner's childhood]
abuse at sentencing" because the petitioner had been cared for
by his mother and grandmother—a conclusion "contradicted" by
habeas evidence of the mother's neglect and her own part in
physically abusing the petitioner.
Id. at 1342-43.
Here, the
habeas evidence did not contradict the trial evidence.
•
The
Eleventh
Circuit's
decision
Secretary, Department of Corrections,
2011),
is
also
distinguishable
for
in
Cooper
646 F.3d 1328
several
v.
(11th Cir.
reasons.
There,
the petitioner's mother—his sole mitigation witness—testified
to abuse she suffered at the hands of the petitioner's father,
said
the
being
father
involved
emotionally
in
his
abused
life,"
the
and
petitioner
described
the
by
"not
father
disciplining the petitioner with a belt so hard that he left
marks.
Id.
at 1336,
prosecutor argued:
1353;
see also id.
do with the defendant?").
subjected
members.
finding
Id.
that
to
at
"a
(noting that
"[Y]ou heard that his mother was married
to a violent man and that he abused her.
been
at 1356
In fact,
"horrible
1353.
What has that got to
the petitioner himself had
abuse"
from
multiple
This made the state supreme court's
substantial
part"
of
the
petitioner's
childhood deprivations came out at trial unreasonable,
removed AEDPA deference.
family
Id.
21
and so
Here,
Lee
had
several
witnesses
who
collectively
described parental violence, maternal drug abuse, and neglect
and
abuse
visited
upon
him.
Besides,
the
Georgia
Supreme
Court did not make as broad a factual finding as did the state
supreme court in Cooper:
about
''the
instability,
it merely found that the jury heard
poverty,
violence,
abandonment,
and
alcohol and drug use that Lee was exposed to as a child," plus
abuse and neglect.
Hall v. Lee, 684 S.E.2d at 877-78.
This
finding,
arguably
been
even
if
oversimplistic,
has
not
rebutted by clear and convincing evidence—so AEDPA deference
applies here.
Besides,
in
Cooper,
the
habeas
evidence
would
qualified the petitioner for two statutory mitigators.
1354-55.
Cooper
Georgia does
habeas
statutory
abuse,
mitigators,
possible
maternal
evidence
have
also
a
suicidal
of
gestures,
slew
childhood
"neurological deficits"
lack
of
learning
a
IQ
mere
Id.
of
possibly
enhanced
with a
childhood
the
PTSD diagnosis.
abuse
and
neglect
22
deficits,
six points
Here,
detail
mitigators,
mental-health mitigator
What is more,
abuse,
at 1355.
the habeas evidence only would have added further
non-
substance
from inhalant
and an
The
new
abuse,
education,
above the intellectual-disability range.
support
Id. at
statutory mitigators.
supported
including
abandonment,
depression,
not
have
based
on
in
and
ADHD
the Cooper court found
that
jurors
may have
interpreted
the
lack
of
mitigating
witnesses—the petitioner's mother was the only one—as a sign
that
trial
counsel
petitioner.
Id.
witnesses,
one
could not
anything
good
about
the
Lee, by contrast, had several mitigating
of
whom
particularly ^'^strong."
also id.
find
the
Georgia
Hall v. Lee,
Supreme
Court
deemed
684 S.E.2d at 883; see
at 877-78.
•
Lastly, Penry v. Lynaugh, 492 U.S. 302
Eddinqs v.
Oklahoma,
They
that
held
455 U.S.
state
law
104
(1982),
cannot
mitigating evidence like Lee's.
(1989), and
are not on point.
prevent
consideration
of
That is not at issue here.
Beyond these precedents that reached outcomes favorable
to petitioners, the Court also notes Cullen v. Pinholster, 563
U.S.
170
(2011).
There,
the trial mitigation evidence-which
was less extensive than that presented to the jury here,
and
also
and
focused
mental
primarily
health—included
on
the
the
petitioner's
petitioner's
childhood
mother's
testimony
that the petitioner's stepfather ''was abusive, or nearly so."
Id.
at 199.
No elaboration was given.
In the state habeas
proceedings, the petitioner brought forward testimony that he
"was
beaten
with
"several times a
fists,
week."
belts,
Id.
(Sotomayor, J., dissenting).
and
at 201
even
wooden
boards"
(majority opinion),
226
The U.S. Supreme Court found no
prejudice because that evidence was "largely duplicat[ive]" of
23
the trial evidence.
Id. at 200 (majority opinion).
If brutal
detail about a single, ambivalent reference to abuse could not
establish prejudice in Cullen, it cannot do so here.
The Georgia Supreme Court's prejudice determination was
not
so
unreasonable
Supreme
Court
holdings that no fairminded jurist could agree with it.
Thus,
Petitioner's
an
argument
applicatipn
that
this
of
Court
U.S.
should
review
the
Georgia Supreme Court's decision de novo is without merit.
The
question
of
prejudice
counsel is fact-intensive.
general.
The
distinguishable.
from
ineffective
assistance
of
The mandatory guidance on point is
precedent
either
Under AEDPA,
was
followed
or
is
this means that the Georgia
Supreme Court's no-prejudice holding stands.
Lee's contention
that his trial counsel gave ineffective assistance by failing
to present or investigate mitigating evidence fails.
B. Lee's Biblical-References Contention Fails.
Also unconvincing is Lee's contention that his trial and
appellate counsel gave ineffective assistance by not objecting
to biblical references
in the State's closing argument.
The
Georgia habeas courts did not decide this issue on the merits,
so this Court does
472
(2009).
so de novo.
Cone v.
Bell,
556 U.S.
The comments to which Lee objects are:
24
449,
[Defense counsel] will argue that the defendant is
worth saving, that this jury should show mercy and
compassion to the defendant because it's in the
Bible, and the Bible does teach us that we should
show mercy and compassion in certain cases.
The
defendant
himself
know,
devil
the
quoted
himself
Scriptures, [^]
can
quote
but,
you
scriptures
when
necessary, the devil himself can do that.[®]
But,
you know, the Bible also tells us that God gave man
the authority to establish laws to protect the
innocent and to punish those who violate man's law,
and it is God's authority to do that.
The Bible
tells us - And it says both ways.
In Genesis it
tells us that whosoever sheds man's blood,
so shall
man's blood be. shed, for in the image of God all men
are made, but then it does say about the compassion.
But most
important
here
is
that
God gave man
authority to make law, and that's what we've done in
this case. . . . There must be accountability in the
state of Georgia for people who commit these type
crimes
★
★
* *
[sic].
[T]he defense may also urge you not to play
God in an attempt to make you feel like you are
being asked to play God, to sentence him for the
rest of his life and let him serve it in prison, in
hopes that you will not give him the death penalty,
to let God decide when he leaves this earth,
but God
has
given
us
authority
in
certain
situations.
Because He gave us authority to make law. He has
given us
authority to make
those decisions
in
certain cases.
^ See Dkt. No. 12-2 at 197:3-8 ("Christ died for all.
He died for you. He
died for me and Sharon Chancey, and the way I believe is I stole from God
when I did what I did, and I'm sorry, I'm very sorry, but I know that
God's forgiven me because, when I did it, I did i t in ignorance .
spiritually speaking."), 209:18-25 ("Christ said He would die for one
person, in this whole world just for one person, and Sharon Chancey was
one person . . . . Until I die, I have to think about that I sent somebody
somewhere,
and that was God's
child,
just like
I
am."),
214:2-10
(commenting on his jailbreak:
"We all backslide for time to time . . . .
The Bible says we're supposed to renew our minds every day.").
® This quip is not comparable to prosecutorial comparisons of defendants to
hated religious figures, which have been held improper.
See Dkt. No. 80
at 132 n.61.
The prosecutor here did not say Lee was Satan-like, but
rather, that the jury should not take Lee's statements to be religiously
authoritative.
A0 72A
(Rev. 8/82)
25
Dkt.
No.
80 at 130-31
17:11-12, 23:1-9
An
e.g..
1233
to
obviously
failing
Freeman v.
(11th Cir.
the
does
to make a
Att^y Gen.,
2008).
biblical
Biblical
No.
12-3 at 16:15-17:6,
(emphasis omitted)).
attorney
assistance by
(quoting Dkt.
give
meritless
State of
ineffective
objection.
Fla.,
536
See,
F.3d 1225,
Any objection counsel could have made
references
references
not
are
here
would
have
been
unconstitutional when the
meritless.
State cites
them ^^for the proposition that death should be mandatory," in
contradiction
of American
Roitiine v. Head,
Farina v.
(11th
station
clear
Fla.
2013)
as
(holding
the
death
error:
F.2d 1006,
1020 & n.24
528 S.E.2d 217,
grounds
by Vergara
v.
Hammond
v.
State,
410 S.E.2d 725,
But
the
Rather,
the
of
.
State,
657
was
S.E.2d
733-34
mercy
prosecutor
by
tried
26
for
mercy.
App'x 966,
elevating
the
his
prosecutor
sole
981
own
made
acceptable
Zant,
Carruthers v.
928
State,
abrogated in part on other
S.E.2d 863,
753
(Ga.
866
(Ga.
1995);
2008);
Todd
v.
1991).
did not
try
appealing
to
F.
the
1991);
745,
(Ga.
room
."); Cunningham v.
2000),
prosecutor here
considerations
.
(Ga.
452
State,
authority,
(11th Cir.
221-22
536
''While
penalty
punishment under divine law .
of
(11th Cir. 2001); see also
Dep't of Corr.,
divinely-ordained
that
allowance
253 F.3d 1349, 1368
Sec'y,
Cir.
law's
to
foreclose
to
divine
downplay
divine
juror
justice.
mercy
by
appealing
to
Schofield,
secular
488
F.
(and
Supp.
divine)
2d
justice.
1258,
1310
Cf.
(N.D.
Ford
Ga.
v.
2007)
(^^Countering biblical law with biblical law likely minimized
any prejudice .
.
.
.").
This sets the biblical references
here apart from those in Romine et al.
644
F.Sd 1145,
1158-59
(11th Cir.
See Greene v. Upton,
2011)
(holding reasonable
state court finding of propriety in ^'references to principles
of divine
law related to the penological
the death penalty,
whether,
including the concept of retribution and
considering
petitioner] should
Campbell,
Ala.
Civ. A.
2007)
justifications for
the
be
No.
("The
enormity
extended
04-0681,
of
his
cf.
mercy.");
crime,
Williams
2007 WL 1098516,
prosecutor
. . .
[the
v.
(S.D.
generally
argued
at *33
that
Christianity is not incompatible with imposition of the death
penalty,
penalty
without
in
this
stating
case.
comment was proper,
the same intensity,
that
The
778
(Ga.
1993)
Court
but not all
cried
does
not
religious
out
hold
for
that
that
the
references are of
and the one at issue here ranks closer to
the mild end of the scale .
770,
religion
.
("[WJhile
.
."); Hill v.
it
would be
State,
427 S.E.2d
improper
...
to
urge that the teachings of a particular religion command the
imposition of a death penalty in the case at hand,
counsel may
bring
case
to
his
use
in
the
discussion
of
the
well-
established historical facts and may allude to such principles
27
of
divine
law
appropriate
omitted)).
to
relating
the
to
transactions
case."
(citation
of
and
men
as
may
quotation
be
marks
An objection would have been meritless, so this is
not a basis for finding ineffective assistance.
C. Lee's Other Ineffective-Assistance Contentions Fail.
Lee's six other related contentions also fail.
i.
Lee's argument that counsel inadequately crossexamined a
Lee
unpersuasively
ineffective
witness,
state witness fails.
by
failing
contends
to
Douglas Gregory.
decide
this
novo.
Cone,
issue
on
that
adequately
his
attorneys
cross-examine
were
a
state
The Georgia habeas courts did not
the merits,
556 U.S. at 472.
so
this
Court
does
so
Gregory testified that he and
Lee stole a car and drove it to Florida in March 1994.
No.
12-1 at 32:18-22,
de
33:20-22,
38:7-9.
There,
Dkt.
Lee and his
friends beat Gregory after Lee said ^^there was going to be an
initiation" and ^''he wanted to see blood, a lot of blood."
at 36:4-37:4.
four
Lee personally ""busted open" Gregory's head in
different places using
37:23.
On
Id.
a
large
cross-examination,
trial
stick.
counsel
Id.
at
36:25-
elicited
that
Gregory was sent to boot camp and put on probation for the
theft,
and that Gregory did not know of any related charges
brought against Lee.
Id. at 45:21-25.
that he planned the theft with Lee.
28
Gregory also admitted
Id. at 41:9-42:7.
Lee
presented
proceedings.
additional
A police
evidence
officer
in
his
said Gregory
state
had
habeas
initially
claimed Lee ^'had kidnapped him at gunpoint," then forced him
to steal
the
car.
Dkt.
No.
18-4
at
67.
Then,
Lee had kept
him at gunpoint while the two drove to Florida.
Id.
Gregory
then alleged that Lee held him ^''captive in a camper trailer
for
4 days
officer
until he was taken out and beaten."
thought
Gregory
^'was
making those statements.
being
totally
Id.
The
untruthful"
in
Id.
Lee argues that his trial attorneys were ineffective for
not
impeaching
Gregory
with
this.
Dkt.
No.
80
at
147.
Although Gregory's police statements did conflict with what he
said on the stand,
competent
they still described him being beaten.
attorney
could
have
decided
that
the
A
attempted
impeachment would have left Gregory's claim that Lee beat him
appearing consistent,
made a difference.
ii.
or that the impeachment would not have
This argument fails.
Lee's
argumen-b
that
counsel
inadequately
prepared witnesses fails.
Lee
next
says
trial
counsel
did
not
adequately prepare
his lay witnesses and did not give enough information to his
mental-health
expert.
Dkt.
witnesses allegation was
courts,
so this
Court
No.
80
at
147-48.
The
lay-
not addressed by the Georgia habeas
reviews
29
i t de novo.
Cone,
556 U.S.
at
472.
Lee
has
prejudice.
not
given any
contention
This
reason
must
Strickland v. Washington,
As
to
the
expert,
prejudice.
Hall v.
This
can
Court
466 U.S.
the
Lee,
only
for
therefore
668,
Georgia
687
that
Court
562 U.S.
86,
101
(2011).
See
found
(Ga.
if
it
no
2009).
was
so
Supreme Court precedent
that no fairminded jurist could agree with it.
Richter,
fail.
881-82
holding
unreasonable an application of U.S.
find
(1984).
Supreme
684 S.E.2d 868,
reject
the Court to
Harrington v.
It was not.
Lee does not
argue prejudice other than to say that the expert ^Vas not
provided with
information
that
was
essential
to
at
147.
The
Georgia
Supreme
Court
deficiencies in the expert's preparation:
noted
an
Dkt. No.
accurate diagnosis of Mr. Lee's mental health."
permit
80
two
possible
the expert was not
given a school record misdiagnosing Lee as mentally retarded,
and
he
did
not
have
the
information
relating
to
Lee's
childhood abuse that surfaced during the habeas proceedings.
Hall V. Lee,
684 S.E.2d at 881-82.
As to the first issue, the
Court found that ''trial counsel actually did obtain and submit
to
[the
expert]
as
a
part
of
Lee's
school
records
an
evaluation of Lee performed in kindergarten that contained the
information that Lee's classification of functioning had been
in
'the
Mild
level
of Mental
Retardation'"—and
the
expert
testified "at trial that he found this kindergarten evaluation
30
^significant.'"
Id.
at
881.
This
factual
finding must
accepted unless rebutted by clear and convincing evidence.
U.S.C.
§
2254(e)(1).
stands,
and
Lee
thus,
so
has
does
presented none.
the
Georgia
The
Supreme
be
28
finding
Court's
conclusion that Lee was not prejudiced by any failure to give
the expert the school record.
As
to
the
Hall v. Lee, 684 S.E.2d at 881.
childhood-abuse
evidence,
testify that he would have added a
in
unreasonable
that no
562
U.S.
Part
an
I. A
application
fairminded
at
above,
expert
PTSD diagnosis.
the Georgia Supreme Court found no prejudice.
explained
the
this
of U.S.
Id. at 882.
holding
Supreme
was
Court
jurist could agree with it.
101.
Hence,
Lee
cannot
Id.
not
did
But
As
so
precedent
Harrington,
establish
ineffective
assistance based on failure to prepare witnesses.
iii.
Lee's
argument
that
counsel
inadequately
prepared him to testify fails.
Nor
based
can
on
Contrary
Lee
establish
inadequate
to
the
help
State's
ineffective
in
preparing
assertion,
addressed by the Georgia habeas courts,
i t de novo.
Cone,
mitigation day,
said
he
would
556 U.S.
assistance
at 472.
his
this
own
issue
of
counsel
testimony.
was
so this Court reviews
Lee decided to testify on
despite earlier conversations wherein he
not.
Dkt.
No.
31
not
14-2
at
72:11-17.
had
Counsel
requested a recess and spoke to Lee for about 35 minutes.
Id.
at 72:21-22.
Id.
at
72:24.
They tried to dissuade him from testifying.
Lee
remained '^convinced that
that he was sorry .
73:16-17.
.
...
he
should say
. that he is not a bad person."
He ultimately did so.
Id. at 73:20.
Id. at
Trial counsel
thought Lee ^^came across very genuine and sorry,
.
.
.
[he]
accomplished what he wanted to accomplish," and there was some
benefit
to
identify
his
any
apparent.
testimony.
way
in
Id.
which
at
he
This argument fails.
74:5-14.
was
Lee
prejudiced.
does
not
is
466 U.S.
See Strickland,
None
at
687.
iv. Lee's argument that counsel improperly failed to
object to sentencing-phase instructions fails.
Lee
object
contends
to,
or
that
his
directly
trial
appeal,
attorneys
the
wrongly
did
sentencing-phase
not
jury
instructions, as no mitigating-evidence instruction was given.
Dkt.
No.
80
at
148-4 9.
This
contention
is
unpersuasive.
Insofar as it concerns the failure to initially object, it was
not
addressed
reviews
it
de
by
the
novo.
Georgia
Cone,
habeas
556
U.S.
courts,
at
472.
so
this
An
cannot give ineffective assistance by not making a
objection.
See,
536 F.3d 1225,
e.g..
1233
Freeman v.
{11th Cir.
32
Att'y Gen.,
2008).
Court
attorney
meritless
State of Fla.,
Any objection counsel
could have made to the instructions would have been meritless,
as discussed in Part II.A below.^
Any failure to directly appeal fails for the same reason.
Lee cannot establish ineffective assistance on this basis.
V.
Lee
Lee's argument that counsel improperly failed to
object to secular prosecutorial comments fails.
unpersuasively
objecting
to
the
prosecutor's
closing arguments:
worst";
(2)
claims
(1)
telling
counsel
nonreligious
describing this
jurors
being able to escape";
trial
erred
not
sentencing-phase
case as
they had to
in
^^one of the
^^prevent
[Lee]
from
(3) saying the option of life with the
possibility of parole would mean ^'knowing that [Lee would] be
paroled to walk the streets of this state and this county and
this city";
(4)
saying execution ^^is a lawful function of our
system" and not revenge, whereas ^'[t]here was no one there to
protect the rights of Sharon Chancey . . . no one to argue for
her
right
to
live,"
as
Lee
^^acted
as
judge,
jury
and
^ Part II. A discusses federal law.
As for Georgia law, the relevant
statute does require that trial courts "include in . . . instructions to
the jury for it to consider[ ] any mitigating circumstances."
O.C.G.A. §
17-10-30;
see also Ross v.
State,
326 S.E.2d 194,
204
(Ga.
1985),
abrogated on other grounds by O^Kelley v. State, 604 S.E.2d 509 (Ga. 2004)
("Under Georgia law, a jury should be informed that it can consider all of
the evidence presented during both phases of the trial (guilt-innocence
and
sentence), it
should
be
instructed
to
consider
mitigating
circumstances, and it should be clearly and explicitly informed that it
may
recommend
a
life
sentence
even
if
it
finds
one
aggravating circumstances beyond a reasonable doubt."
omitted));
Hawes
v.
State,
240
S.E.2d
833,
839
(Ga.
or
more
statutory
(internal citations
1977).
But
any
objection Lee's trial attorneys could have made still would have been
meritless, as the instructions here are not meaningfully distinguishable
from the ones upheld in High v. Zant, 300 S.E.2d 654, 662-63 (Ga. 1983).
Cf.
Diet.
No.
12-3 a t
45:7-52:2.
33
executioner all in one"; and
Chancey
basis
from
for
her
home
this.
22:12-15;
Dkt.
at
Dkt.
No.
(5)
'""stating Mr.
gunpoint,"
No.
12-3
Lee removed Ms.
without
at
17:24,
an
evidentiary
19:5-23,
20:6-7,
80 at 140-41.
The Georgia Supreme Court did not decide this issue,
this Court does
failure
so de novo.
to
make
assistance,
and
prejudice.
Freeman,
States,
218
the
conviction a
477
U.S.
denial
181
637,
not
to that
(1)
643
jury
F.3d at
1312-13
not
with
1233;
reversible
as
of due process."
(citing
(1974)).
472.
not
a
showing
Cir.
error
to
Again,
ineffective
Chandler
(11th
unfairness
(1986)
is
requires
536
is
at
v.
the
Darden v.
Donnelly v.
United
2000).
unless
make
of
A
it
"so
resulting
Wainwriqht,
DeChristoforo,
The five comments at issue here do
level.
The comment about this case being "one of the worst"
was acceptable.
the
objection
1305,
trial
168,
556 U.S.
ineffectiveness
remark
416 U.S.
rise
meritless
F.3d
prosecutorial
infected
a
Cone,
so
that,
It may be "wrong for the prosecutor to tell
out
of
all
possible
cases,
he
has
chosen
a
particular case as one of the very worst," as this "suggest[s]
that a
more authoritative source
[than the
decided the appropriate punishment."
1480,
1484
(1985),
(11th
reaff^d
Cir.
on
1985)
34
has already
Tucker v. Kemp,
(en banc),
subsequent
jury]
vac^ d,
determination,
474
802
762 F.2d
U.S.
F.2d
1001
1293,
1296-97
(11th Cir. 1986)
(en banc)
(per curiam).
But all the
prosecutor did here was generically say this was ^^one of the
worst" cases out there.
Sec'y,
Fla.
2012)
That is permissible.
Dep^t of Corr.,
675
1292
Reese v.
(11th Cir.
(endorsing prosecutorial comment that victim experienced
^^every
woman's
worst
prove murder ""'was
nightmare,"
Bradshaw,
No.
1:05CV0033,
Sept. 8, 2006)
offense
given
state's
ability
to
^extremely wicked or shockingly evil' [ or]
^outrageously wicked and vile'"
the
F.3d 1277,
Cf.
(citation omitted)); Keeton v.
2006 WL 2612899,
at *11
(N.D.
Ohio
('MlJn regard to the prosecutor's comment that
was
one
of
the worst crimes ever
heard
in
that
Lee
from
courtroom, any prejudice was minimal.").
(2)
The
invitation
to
escaping was permissible.
the
jury
to
prevent
Future dangerousness ^^is a proper
element in the sentencing jury's decision."
762
U.S.
F.2d 1383,
1016
(en banc)
1412
(1986),
(11th Cir.
reinstated,
(per curiam)
1985)
809
Brooks v.
(en banc),
F.2d 700
Kemp,
vac'd,
(11th Cir.
478
1987)
(considering prosecutorial suggestion
that petitioner ^'might kill a guard or a fellow prisoner.");
see also Jurek v.
Texas,
428
U.S.
262,
275
(1976)
(plurality
opinion)
(^'[A]ny sentencing authority must predict a convicted
person's
probable
future
conduct
when
it
engages
process of determining what punishment to impose.").
his
required
^'opportunity
to
35
introduce
evidence
in
the
Lee had
on
this
point."
see
also
Skipper v. South Carolina,
Dkt.
No.
12-3
at
476 U.S. 1,
31:2-18
5 n.l
(summarizing,
in
(1986);
defense
closing argument, evidence that Lee's escape was harmless).
(3) Any error in the prosecutor's comment that a sentence
of
life with
the
possibility of parole would
result
being free due to parole did not prejudice Lee,
was
explicitly
given
the
option
of
without the possibility of parole.
cf.
Greene
(holding
v.
Upton,
state
644
court
F.3d
sentencing
as the jury
Lee
to
life
Dkt. No. 12-3 at 50:11-13;
1145,
reasonably
in Lee
1157
held
(11th
curative
Cir.
2011)
instruction
prevented prejudice arising from improper parole comment).
(4)
It is permissible for a prosecutor to argue that
petitioner's]
horrible
execution of
than
demonstrate[s]
penalty."
a
the
Brooks,
[a victim]
procedurally
proper,
[petitioner's]
7 62
F.2d
at
in a manner much more
belief
1411.
legal
in
The
execution
the
death
comments
Lee
criticizes here are just as permissible.
(5)
The prosecutor did not manufacture a baseless theory
that Lee had taken Chancey at gunpoint.
The comments read:
I submit to you,
from what you've heard on the
stand,
he
kidnapped
Sharon
Chancey
from
that
trailer.
Think about what he's told you.
He now
tells you that he himself entered into the trailer
of Sharon Chancey, that he had sent [his girlfriend]
up there but [Chancey] would not come with [her]
because she didn't know [her] . . . . After midnight
of May the 26th, a young girl comes to her door that
she had never seen before and says [Lee] needs some
36
help, and she says, no, I'm not leaving the home
that I'm in; while I'm asleep, you woke me up, I'm
not leaving.
Yet the defendant himself goes there,
according to his own words, enters the trailer, and
on two occasion, at least, begs her or asks her to
come help him.
She finally agrees . . . .
* * * * He wants you to believe
. . . that he went
need some help, my
after a couple of
times she finally says, sure, I'll go with you and
help you out.
Then Jamie,
according to his
testimony on the stand, says I'll go out here, I've
to her house and said, Sharon, I
car has broken down . . . and
got a friend out here, I'm catching a ride with him
back to my car that's broken down.
Now does that
make any sense at all, that you go to somebody's
house, say I need you to help me crank a car, and
when
they
finally
agree,
say,
well,
I've
somebody else here I'm catching a ride with?
got
I submit to you that Sharon Chancey was
taken at gunpoint from that house by Jamie Lee.
Other things:
Sharon Chancey left her house without
her teeth. . . . [S]he left the house with no shoes
on, and she left the house in her panties and,
according to the defendant, just a nightgown.
It's
two to four o'clock in the morning.
She's walking
around supposedly on the side of the road trying to
help somebody crank a
car,
barefooted,
in her
panties, and in a flimsy nightgown.
Does that make
any sense at all?
Dkt.
No.
12-3 a t
11:7-13:7.
This was not a misrepresentation of the evidence.
an argument based on it.
was
within
the
illustration'
argument."
Williams v.
(citation omitted).
The prosecutor's ''conclusion
'considerable
granted
a
It was
district
State,
latitude
attorney
in
in
330 S.E.2d 353,
imagery
.
355
.
.
(Ga.
.
.
.
and
final
1985)
Trial counsel's failure to object to this
and the other comments was not
37
ineffective assistance.
vi. O'ther ineffec'bive-assis'tance coxi'ben'kions fail.
Lee
raises
other
without briefing them.
(n)-(s),
refer
(w),
to
See Dkt.
(x),
44;
Dkt. No. 29 SI 15(b)-(c),
(ee).
withdrawn
No.
ineffective-assistance
contentions
(e) ,
(g)-(j)f
These are too vague to merit relief,
substantive
Parts III,
claims,
or
are
unpersuasive.
IV.A-B infra.
Lastly, Lee complains that trial counsel was ineffective
for
failing
SISI 15 (ii),
to
present
19-20.
As
issues
no
on
issue
appeal.
Lee
Dkt.
raises
No.
29
presented
meritorious basis for appeal, this contention fails.
a
Lee has
not proven ineffective assistance of counsel.
II.
LEE'S JURY-INSTRUCTION CLAIMS FAIL.
Lee's claims that his sentencing and guilt/innocence jury
instructions were improper fail.
A. Lee's Sentencing-Instruction Contention Fails.
Lee
unsuccessfully
contends
that
the
trial
instruction on mitigating evidence was improper.
The Georgia
habeas courts did not decide this issue on the merits,
Court does so de novo.
20-16 at
No.
V.
4
did not
weigh
at
472;
(conceding this to have been error,
554 S.E.2d 155,
define mitigating
it
556 U.S.
see
so this
Dkt.
(holding contention procedurally defaulted);
87 at 24
Ferrell,
Cone,
court's
against
160
(Ga.
evidence
aggravating
38
2001)).
or
Dkt.
citing Head
The trial court
instruct
evidence.
No.
It
the
did
jury to
define
statutory aggravating evidence,
and instruct the jury that at
least one aggravator had to be found before a death sentence
could be
imposed.
Dkt.
No.
12-3
at
45:7-48:17.
It
also
explained the jury's ability to impose a lesser sentence:.
You may set the penalty to be imposed at life
imprisonment.
It is not required and it is not
necessary
that
you
find
any
extenuating
or
mitigating fact or circumstance in order for you to
return a verdict setting the penalty to be imposed
at life imprisonment.
Whether or not you find any
extenuating or mitigating facts or circumstances,
you are authorized to fix the penalty in this case
at life imprisonment.
If you find from the evidence
beyond a reasonable doubt the existence in this case
of
one
or more
statutory aggravating
circumstances
as given you in charge by the Court, then you would
be authorized to recommend the imposition of
sentence of life imprisonment without parole or
sentence of death,
do
a
a
but you would not be required to
so.
If you should find from the evidence in this case
beyond a reasonable doubt the existence of one or
more statutory aggravating circumstances as given
you in charge by the Court, you would also be
authorized
to
imprisonment.
sentence
You
may
the
fix
defendant
the
penalty
to
of
life
life
imprisonment if you see fit to do so for any reason
satisfactory to you or without any reason.
Members of the jury, you may return any one of the
three verdicts as to the penalty in-this case; life
imprisonment, life imprisonment without parole, or
death.
* * * * Whatever penalty is to be imposed within the
limits of the law as I have instructed you is a
matter solely for you the jury to determine . . . .
Dkt. No.
12-3 at 49:15-50:13,
These
instructions
were
U.S. Constitution permits.
A0 72A
(Rev. 8/82)
51:24-52:2.
within
the
bounds
of
what
the
A jury need not ""be instructed on
39
the concept of mitigating evidence generally, or on particular
statutory mitigating factors."
269, 270
a
(1998) .
particular
mitigating
Buchanan v. Anqelone, 522 U.S.
A state need not ^^affirmatively structure in
way
the
manner
evidence."
discretion"—such
as
Id.
that
in
at
which
27 6.
authorized
constitutionally permissible."
juries
consider
[C] omplete
by
the
charge
jury
here—''^is
Id.
The only thing instructions cannot do is ^'foreclose the
jury's consideration of any mitigating evidence."
The instructions here did no such thing.
jurors
that
beyond
a
death."
if
they
Id.
They '^informed the
found
[an]
aggravating
doubt,"
reasonable
Id. at 277.
they
could
fix
factor
^'the
proved
penalty at
They also told jurors they could impose a lesser
sentence ^^for any reason satisfactory to [them] or without any
reason."
allowed
Dkt.
No.
12-3
at
to
impose
a
aggravating
factor
proved."
"Moreover,
manner
.
in
mitigation."
.
.
life
50:8-10.
sentence
Id.
the
jury
This
Pre-Buchanan
otherwise.
Eleventh
To be sure,
was
means
constitutionally permissible.
even
Buchanan,
the instructions
which
''The
.
.
.
522
was
it
found
U.S.
at
thus
the
277.
did not constrain the
able
that
if
jury
to
the
give
effect
instructions
to
were
Id. at 279.
Circuit
cases
do
not
hold
"the Constitution requires that there
be no reasonable possibility that a
40
juror will misunderstand
the meaning and function of mitigating circumstances."
V.
Kemp,
784 F.2d 1479,
1494
''[w]here a defendant has
the
absence
creates
1006,
of
such
1012
any
a
.
{11th Cir.
.
(en banc).
possibility.
instructions
Cunningham
1991) .
on
v.
F.2d
988,
challenged
define
991
(11th
portion
of
^mitigation,'
function
to
probability
the
the
1987).
did
jurors
1528
(11th
Cir.
conclusion
outset,
whatever
in
1995).
High
although
not
explicitly
the
mitigating
no
reasonable
there
was
their
Waters v. Thomas,
Eleventh
because:
(1)
^Mt]he
allocate
it
The
Kemp,
at
to
46 F.3d 1506,
Circuit
the
ability
reached
sentencing
this
phase's
the judge told the jury that both sides would present
evidence
they
^mitigating facts'
could
impose
aggravators.
These
wanted
are those
to help the defendant";
it
F.2d
did
misunderstood
consider mitigating evidence.
High v.
Here,
instruction
defendant,"
that
928
But the Court must look to. ""'the
Cir.
nor
mitigation"
Zant,
context of the entire sentencing proceeding."
819
And
. presented mitigating evidence,
explanatory
(11th Cir.
1986)
Peek
and
to;
.
.
(3)
mercy"
.
(2)
the
jury
which are
knew
^good'
^^that
and tend
''the jury was instructed that
regardless
of
mitigators
or
819 F.2d at 991.
facts
hold true
here
as
well.
At
the
sentencing
phase's start, the judge told the jury that "the State and the
accused
both
have
a
right
to
41
submit
additional
evidence
in
aggravation or extenuation and mitigation of the punishment to
be imposed.
then
goes
After hearing any such evidence .
back to
consider
the
punishment to be imposed."
sides then said that
14:11-15.
sets
No.
and determine
12-1 at 14:3-9.
they had evidence to present.
of evidence
information,
competing
closing
Dkt.
the jury
the
Both
Id.
at
This notified the jury that it was going to hear
competing
That
sentence
.
and
evidence,
the
were
argument.
before
jury's
determining
ability
reinforced
Counsel
began
by
by
the
to
sentence.
consider
Lee's
the
counsel
reminding
jurors
in
that
^Mw]e're deciding whether or not the State of Georgia should
take
Jamie
13-14.
Lee
He
out
and
kill
discussed
the
him."
Dkt.
State's
No.
12-3
aggravating
at
evidence
length, challenging parts of it and its significance.
28:6-32:25.
25:5-6,
at
Id. at
He explicitly talked about mitigating evidence,
beginning with a reference to his side's ^^opportunity in the
mitigation phase . . . to show you a little bit about Jamie
Lee."
Id.
at 33:1-3.
The jury then heard a summary of,
comments upon, the mitigating evidence.
Thus,
whether
evidence
Id. at 33:3-40:13.
the judge told the jurors they could freely decide
to
impose
in
the
aggravation
death
and
penalty
after
mitigation,
and
hearing
Lee's
identified his evidence as being in mitigation.
facts,
and
there
is
no
reasonable
42
probability
dueling
attorney
Given these
that
the
jury
misunderstood the nature and function of mitigating evidence.
See
Waters,
46
indicated that
F.3d
at
1528-29
(^^[DJefense
counsel
clearly
^mitigating evidence' was that which could aid
the defendant by leading a jury to impose a sentence of life,
even
if
it
found
circumstances.
enlightenment
the
existence
of
one
or
more
aggravating
This facet of the argument gave the jury .
regarding
the
nature and
role
of
.
.
mitigating
evidence.
The argument also served to link the function of
mitigation
to
the
instruction
that
the
jury could
life sentence for any reason or none at all.");
Kemp,
the
846 F.2d 1276,
jurors
of
1284-85
their
wide
(11th Cir.
discretion
1988)
to
impose
a
Williams v.
(''By informing
recommend
against
death, these instructions provided the jury with a clear basis
to
focus
upon
circumstances.").
and
consider
evidence
of
mitigating
Lee's contention fails.
B. Lee's Guilt/Innocence-Instrucbion Contentions Fail.
Lee's
contention
instructions
fares
regarding
no better.®
the
guilt/innocence-phase
The state habeas
court
found
® Nor, apparently, did trial counsel think there was such a probability at
the
time—no
Williams
v.
objection
was
Kemp,
F.2d
846
made.
Dkt.
1276,
1285
No.
(11th
12-3
at
Cir.
55:10-18;
1988)
(^'An
see
also
additional
indication that all parties present at the proceedings perceived that the
instructions did in fact convey to the jury the significance of mitigating
circumstances is evidenced by the fact that,
at the close of the
sentencing instructions, no objections or exceptions were made.").
® Lee raised this issue in his federal habeas petition, dkt. no. 29 2 29,
but did not brief it.
See generally Dkt. Nos.
argues that Lee has abandoned this contention.
43
80, 90, 92.
Dkt. No. 87
The State
at 214-15.
this issue procedurally defaulted because Lee failed to raise
it on direct appeal.
Dkt. No. 20-16 at 4.
"""This Court cannot
review claims the state habeas court found to be procedurally
defaulted unless
[the petitioner]
actual prejudice from,
establishes cause for,
the default or establishes that failure
to review the claim would result in a
of justice."
Cir.
2017);
Butts v. GDCP Warden,
see
Classification
Lee
has
done
also
Lucas
Prison,
nothing
and
771
to
v.
F.3d
fundamental miscarriage
850 F.3d 1201, 1214
Warden,
785,
unlock the
Ga.
801
door
(11th
to
(11th
Diagnostic
Cir.
federal
&
2014).
review.
His jury-instruction claims fail.
III.
LEE'S BR2U3Y CLAIM FAILS.
Lee
Maryland,
unconvincingly
claims
373
(1963),
v.
intoxication
killed
Chancey.
prosecution of evidence
that
Brady
allegedly improperly withheld evidence of Lee's
he
in
of
prosecution
night
83
violation
the
the
U.S.
a
''[Tjhe
favorable
suppression
by
the
to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment,
faith
of
the
irrespective of the good faith or bad
prosecution."
Brady,
373
U.S.
at
87.
To
establish a Brady violation, a petitioner must show:
But because ''the State fails to cite any authority holding that a
petitioner can default on a claim in this manner," and the Court is not
aware of any, i t will not find abandonment.
Hammonds v. Allen, 84 9 F.
Supp. 2d 1262, 1299 (M.D. Ala. 2012).
44
(1) that the Government possessed evidence favorable
to the defense,
(2)
that the defendant did not
possess the evidence and could not obtain it with
any reasonable diligence, (3) that the prosecution
suppressed the evidence, and (4) that a reasonable
probability
exists
that
the
outcome
of
the
proceeding
would
have
been
different
had
the
evidence been disclosed to the defense.
Moon V.
Head,
omitted)
Cir.
F.3d 1301,
(quoting Spivey v.
1308
{11th Cir.
Head,
207
2002)
(brackets
F.3d 1263,
1283
(11th
2000)).
The
favor,
was
285
Court
already
holding,
decided
this
among other things,
immaterial
given
killed his father
Lee's
(as
Dkt.
had been sober."
[he]
No.
issue
in
that
he
26.
would
have
even if
originally intended)
at
State's
that intoxication evidence
''admission
74
the
[Lee]
That meant Lee could not
"show prejudice to overcome [the] procedural default" found by
the state habeas court.
Lee
seeks
Florida
(11th Cir.
2015) .
does
Department
not
that
he
562-63.
would
have
in
of
Even assuming
invalidate
Hardwick did hold that
F.3d at
see also id.
reconsideration
Secretary,
Hardwick
Id.;
But
at 15.
light
of
Corrections,
this
the
intoxication
effort
Court's
Hardwick
803
to
F.3d
be
v.
541
timely,
earlier
can be mitigating.
order.
803
the Hardwick petitioner never admitted
killed
the
The circumstances of that case
victim
even
had
he
been
sober.
strongly suggested otherwise:
over the five days before the offense, the Hardwick petitioner
45
took 40 to 50 Quaaludes, continually smoked marijuana, drank a
fifth
of vodka,
killed a
803 F.Sd at 546,
1131-42
distinct
(llth
from this
holding.
IV.
of beer;
he then
seventeen year-old whom he accused of stealing his
Quaaludes.
1127,
and shared in several cases
Cir.
557; Hardwick v. Crosby,
2003).
case to make
Hardwick
the
is
Court
320 F.3d
too
factually
revisit
its
prior
Lee's Brady claim still fails.
LEE'S TRIAL-COURT-ERROR CLAIMS FAIL.
Lee raises
five
claims of error by the trial court,
of which are procedurally defaulted.
two
The state habeas court
found Lee's claims relating to restrictions on his voir dire
of prospective jurors,
instructions,
18;
Dkt.
No.
and to the guilt/innocence-phase jury
procedurally defaulted.
20-16
at
4.
Lee has
Dkt.
No.
13-11 at 17-
not carried his burden of
showing either cause for and prejudice from the defaults,
fundamental miscarriages of justice.
As
for
other
claims.
Lee
These claims fail.
argues
that
the
erred by admitting his statements of May 26-27,
26,
1995,
trial
and refusing to direct an acquittal verdict as to
of kidnapping."
Dkt.
contentions
characterizes
87 at 214.
court
1994 and July
felony murder ''based on the improper venue of the .
These
or
them as
But again,
are
No.
29 at 23.^°
properly
abandoned because
before
.
. charge
The Supreme Court of
the
Lee did not
Court.
brief
The
them.
State
Dkt.
No.
"the State fails to cite any authority holding that
46
Georgia
State/
favor
addressed
514
can
all
S.E.2d
only
be
three
3-5.
at
issues
Its
rejected
if
on
the
merits.
conclusions
they
were
in
such
Lee
the
v.
State's
unreasonable
applications of U.S. Supreme Court holdings that no fairminded
juror could agree with them.
86/
101
A.
(2011).
Harrington v.
Richter,
562 U.S.
They were not.
Admission of Lee's
Reasonably Upheld.
May
26-27/
1994
Statements
Was
The Georgia Supreme Court reasonably decided that Lee's
May
26-27/
statements
arrest/
1994
were
were
confession.
statements
made
to
were
law
enforcement
incriminating/
Lee/
514
properly
S.E.2d
and
at
admitted.
after
included
3.
Lee
Lee's
a
at 23.
in
initial
videotaped
contends/
elaboration/ that they were ""illegally obtained."
The
without
Dkt. No. 29
The Georgia Supreme Court made the following findings
concluding
that
the
statements
were
voluntary
and
admissible:
Lee was 19 years old, in police custody only a short
time/ not under the influence of drugs or alcohol/
not subjected to any physical or psychological
coercion/ and
he
was
informed
of
and
waived
his Miranda rights on several occasions.
After Lee
admitted to killing his father's girl friend and
stealing the truck/ a police officer asked him if he
would
agreed/
make
another
but when the
statement
on
audiotape.
Lee
recording began Lee asked the
officer/ ""What should I do?
Should I talk?"
The
officer replied, ""That's up to you, man.
All you're
going to do is help yourself out."
a petitioner can default on a claim in this manner,"
not know of one.
Hammonds, 849 F. Supp. 2d at 1299.
47
and the Court does
Lee, 514 S.E.2d at 3-4.
not shown one.
B.
This Court sees no error, and Lee has
This is not a ground for relief.
Admission of Lee's
Reasonably Upheld.
July
26,
1995
Statement
Was
The same is true regarding the upholding of the admission
of Lee's July 26,
1995 statement.
The statement was made to
an officer who stopped Lee following Lee's jailbreak.
5.
at
Lee gave his name and said he was ""wanted for murder in
Georgia."
of
Id.
an
Id.
Lee argues that the statement ""was the fruit
illegal
investigatory
stop
and
arrest"
adequate suspicion of criminal activity.
(citing under United States v.
(1981)
Cortez,
made
Dkt.
No.
449 U.S.
without
29 at 23
411,
417-18
(""Based upon that whole picture the detaining officers
must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity.")).
The
Georgia Supreme Court held otherwise:
Officer Rodriguez is an experienced police officer.
5:00 a.m.,
he observed a
vehicle exiting a
At
business
area
where
no
residences
were
located,
at
a time when no businesses were open and where he
believed there had been previous burglaries.
In
response to the officer's emergency lights,
the
vehicle's occupants attempted to flee. . . .
Taken
together, these facts are sufficient to establish at
least an articulable suspicion that Lee was engaged
in criminal behavior and that Officer Rodriguez was
therefore justified in conducting an investigatory
stop.
Lee,
514
Briqqman,
S.E.2d
at
5
931 F.2d 705,
(citing,
708-09
48
inter
alia.
(11th Cir.
United
1991)
States
v.
(per curiam)).
This Court again detects no error,
one.
and Lee has not identified
This is not a ground for relief.
C. The Kidnapping-Venue Issue Was Reasonably Decided.
Lee's
ultimate
point
of
trial-court
error
is
that
he
should have won a directed verdict of acquittal on his felony-
murder
charge
based
kidnapping charge.
on
improper
Dkt.
No.
venue
for
29 at 23.
Chancey was within the
res
underlying
The Georgia Supreme
Court rejected this argument on two grounds:
of Ms.
the
(1)
^'Lee's murder
gestae of the
kidnapping
with bodily injury, since Ms. Chancey was under the continuous
control
of
the
defendant
until
she
was
killed"
and
(2)
the
jury convicted Lee of malice murder, so any error as to felony
murder was moot.
Lee,
514 S.E.2d at 4.
Lee has not provided
any reason why the Supreme Court of Georgia's analysis can,
and should, be reversed.
This is not a ground for relief, nor
is any other trial-court error raised by Lee.
V.
LEE'S EIGHTH AND FOURTEENTH AMENDMENT CLAIMS FAIL.
Lastly,
Georgia
Lee's proportionality claim cannot succeed.
Supreme
Court
found
crimes,
proportional
to
Lee's
cases.
v.
Lee,
S.E.2d
Hall
1,
6
& app'x
permissible.
3973912,
at *40
Meders
(S.D.
684
(Ga.
v.
that
1999).
Chatman,
49
death
citing
S.E.2d
Ga. Aug.
the
14,
at
nineteen
884;
This
No.
2014)
penalty
Lee
form
CV
v.
The
was
comparator
State,
of
207-90,
514
review
is
2014
WL
(citing McCleskey v.
Kemp, 481 U.S. 279, 306 (1987)).^^
Lee's proportionality claim
fails.
CONCLUSION
For the reasons above. Lee's Amended Petition for Writ of
Habeas Corpus, dkt. no. 29, is DENIED.
SO ORDERED, this 19
day of September, 2017.
HON.
LISA GObBEY WOOD
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
Besides, there is no constitutional right to proportionality review.
Pulley V. Harris, 465 U.S. 37, 50-51 (1984) .
It is merely "an additional
safeguard against arbitrarily imposed death sentences."
Id. at 50.
The
Court does not have freestanding reason to suspect arbitrary imposition
here, so it will not inquire further.
See Walker v. Georgia, 129 S. Ct.
481, 483 (2008)
(Thomas, J., concurring in denial of cert.)
("Having
elected to provide the additional protection of proportionality review,
there can be no question that the way in which the Georgia Supreme Court
administered that review in this case raised no constitutional issue.").
A0 72A
(Rev. 8/82)
50
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