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)

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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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