*1 sex-trafficking rights defendant’s or inter- attorney-client privilege); Cunningham, way, 209,119 in much less in an important ests 527 U.S. at S.Ct. at 1922 (express- way. ing similar concern in the context of orders violations). fining attorneys discovery for
Second,
person
commits a crimi-
when
action,
gives
nal act that also
rise to a civil
sum,
because the
lifting
order
person
necessarily
must
decide
in
stay
this case does not present “an
right against
whether to invoke the
self-
issue,”
important
prong
second
incrimination in the civil action in order to
satisfied,
Cohen test is not
and this Court
consequences
avoid
in a criminal case.
appellate jurisdiction
lacks
over the defen
Whether the individual defendant chooses
interlocutory appeal.
dants’
Our conclu
that right,
consequences
invoke
and the
sion is
charge
consistent with our
to keep a
so,
doing
“important
are not
issues”
tight
types
rein on the
appeal-
orders
public
that involve a “substantial
interest.”
able under the collateral order doctrine.
5,
Grove,
v.
United States
Lot
Fox
Indus.,
113,
Mohawk
558 U.S. at
Cfi
S.Ct.
Fla.,
359,
Alachua Cnty.,
23 F.3d
(reiterating
at 609
“that the class of collat
(11th Cir.1994) (“[A] blanket assertion of
erally appealable orders must remain nar
privilege [against
is
self-incrimination]
(in
row and selective in membership”
its
inadequate basis
the issuance of a
omitted)).
quotation
ternal
marks
We are
Rather,
stay.
a court must
stay
civil
healthy
bound to maintain “a
respect for
proceeding pending
resolution of
related
of the final-judgment
virtues
rule.”
prosecution only
criminal
‘special
when
605;
Will,
Id. at
S.Ct.
see also
circumstances’
require
so
the ‘interests
350, 126
546 U.S. at
S.Ct. at 957-58.
(citation omitted)).
justice.’”
That is
III. CONCLUSION
especially true when a civil defendant is
invoking
right against
self-incrimina-
Because the collateral order doctrine
tion
a U.S. civil action to
him in
help
a does not extend to
lifting stays
orders
See,
foreign prosecution.
e.g.,
cases,
United
§ 1595
we dismiss the defendants’
666, 669,
Balsys,
States v.
524 U.S.
118 interlocutory appeal for
appellate
lack of
(1998)
S.Ct.
(holding that “concern with foreign prose- DISMISSED. beyond sсope cution is of the Self- Clause”). Incrimination
Third, the limited benefits of applying blunt,
“the categorical instrument § appeal” 1291 collateral order to orders TERRELL, Brian Keith Petitioner- stays §in lifting simply 1595 cases do not Appellant, justify immediate appeal. See Mohawk Indus., 558 U.S. at S.Ct. WARDEN, Respondent-Appellee. GDCP omitted). (quotation Permitting marks parties successive, piecemeal undertake No. 11-13660. 1595(b) appeals every stay time a is United States of Appeals, Court lifted unduly delay the resolution of Eleventh Circuit. district court litigation civil for sex traf- March 2014. ficking needlessly burden the appel- (raising late courts. id. similar concern Cf.
in the context of orders adverse to the *3 denying him judgment district court’s to 28 U.S.C. pursuant relief
federal habeas his re- district court denied 2254. The appealability a certificate of quest (“COA”), granted application we regard to two claims of for a COA with After re- of counsel. ineffective assistance record, reading parties’ viewing the argu- having the benefit of oral briefs ment, judg- district court’s we affirm the relief. denying Terrell habeas ment *4 I. BACKGROUND A. Facts (“Bar- mothеr, Terrell Terrell’s Barbara victim, bara”), seventy- a friend to the (‘Watson”), who year-old John Watson required and problems health suffered For over dialysis per three times week. assisting him with years, she had been two any compensa- meals and errands without marriage, The two had discussed tion. Bar- promised and had include Watson perform- in his will. she was bara While kindness, Terrell was ing these acts 1, 1992, May Terrell was re- prison. On began thus prison and leased murder. that led to Watson’s tragic events notified the June Watson On Kennedy Casey, Michael Susan C. that he had received ten sheriffs office Atlanta, GA, Associates, McIntyre & Ger- and checks that had been stolen canceled Jr., King, Federal Defender Wesley ald $8,700. of the forged, totaling Some Atlanta, GA, Inc., Petitioner- for Program, payable made to Terrell. checks had been Appellant. Barbara, friendship with Because of his to wait a few asked the sheriff Watson Burton, Attorney Gener- Attaway Beth in- arresting Terrell. Watson days before Atlanta, GA, Office, Respondent- al’s forgeries about the formed Barbara Appellee. request a war- her that he would told MARTIN, MARCUS, Before returned most rant for Terrell he DUBINA, Judges. Circuit 22. re- by Monday, June Barbara money Terrell, who layed this information
DUBINA, Judge: Circuit However, money. repay promised (“Ter- day, reneged on following Brian Keith Petitioner inmate, promise. rell”), appeals Georgia death row body driving on his Authorities Watson’s Terrell’s blue Cadillac at this property request- on June the date he time. Johnson ap- testified that Terrell repay money. that Terrell the stolen ed peared near Watson’s house and he had The evidence indicated Watson stopped picked up. him Watson’s been been shot four times had severe- neighbor testified that at approximately ly beaten in the face and head. The medi- a.m., 9:30 she saw a man wearing a gun- cal examiner testified that either the standing white shirt next to a large blue beating or the have been fatal shots parked car on the side of the road. Ter- and that Watsоn was still alive when he wearing rell was a white shirt on June injuries. received all these The shell cas- 22. Terrell told Johnson that he had ings driveway found on Watson’s indicated shot a man. Terrell bought new clothes or .38 .357 caliber revolver had been department at a store and took a bath at shooting. used in the grandmother’s house while Johnson Johnson, cousin, Jermaine Later, washed the car. Terrell took his confessed to his role in the crime and son to the zoo. exchange testified at trial in for a five- questioned by police, When Ter- year for robbery. sentence He stated rell committing admitted the forgeries, that he and Terrell checked into a motel but denied the murder. He said that he midnight near Watson’s house at and Johnson had checked into the motel *5 keys June 21. Terrell the in locked woman, identified, with a who was never and, despite blue Cadillac the assistance stayed and all night there after he had deputy, they of a sheriffs were unsuc- locked in keys the car. He said that at unlocking cessful thе car door. He they did not leave until 10:00 or 10:30 said that he and Terrell went to bed and a.m., they when broke get the window to awoke at a.m. on 22. They 6:30 June into the in Cadillac. Later the inter- broke a get window to into the Cadillac. view, police a officer him asked how the had .357 or .38 caliber revolver got woman home and Terrell stated that he dropped and asked to be off at Wat- early Johnson drove her home son’s house. Terrell told Johnson to morning, impos- which would have been him return for at 9:00 a.m. Johnson went keys sible were locked in the car motel, a.m., slept back to the until 8:30 at that time. When Terrell realized that pick up and then drove back to Terrell. himself, he had contradicted he refused a.m., Before 9:00 he had a conversation questions. answer more with the in manager parking motel State, 783, 784-86, leaving.
lot as he was Terrell v. 271 manager The Ga. 523 (1999). 294, noticed that in glass the broken the S.E.2d 296-97 parking lot was on the side of the car History B. Procedural window, opposite indicating the broken that the Cadillac had been moved since County, A Georgia, grand jury Newton the window was broken. The man with originally July indicted Terrell on spoke whom she murder, murder, matched Johnson’s de- felony for malice and scription and she testified that he was Later, robbery armed of Watson. alone. grand jury charged Terrell on ten counts degree forgery. of first Terrell’s first tri-
Johnson drove back and forth on the al, house, in stop- County road front of Watson’s conducted Houston based on venue, ping at a and a change Wal-mart convenience ended a mistrial store to wait. jury Witnesses saw Johnson because the was unable to reach a 1260 for ten-year sentences to ten consecutive guilt phase. in the
unanimous verdict (“Strauss”) Terrell filed forgery Ter- convictions. represented John Strauss trial, The State subse- and an amended trial. motion for a new rell at his first and felony murder which the dropped the new both of quently motion for 1995, Terrell’s robbery Georgia counts. appeal, armed On trial court denied. conductеd Walton trial was second Terrell’s convic Court affirmed Supreme venue, change of County, State, on another based Terrell v. sentences. See tions and represented again (2002). Terrell was 34, The 572 S.E.2d 276 Ga. on the jury convicted Terrell Strauss. cer Court denied Supreme States United forgery charges, and murder and malice Georgia, Terrell v. review. See tiorari him to death court sentenced the trial 88, 157 L.Ed.2d S.Ct. U.S. appeal, conviction. On malice murder (2003). Court reversed Georgia Supreme petition, and filed a state habeas in the to an error convictions due petition after an amendment State, 271 Ga. at Terrell v. selection. See denied evidentiary hearing, the trial court 783-84, at 296. 523 S.E.2d grant- as to Terrell’s convictions relief January began in third trial sentence, based ed relief as to his death convicted him on jury again claims of ineffective specific a number of the ten charge murder the malice appeal, trial On counsel. assistance first-degree forgery. Strauss counts of reversed the Georgia Supreme Court utilized Terrell and represent continued to to Terrell’s death grant of relief as habeas than he did in the first a different defense sentence, sentence, reinstated his death pointing fingers Instead two trials. court’s denial of and affirmed suspects like he did possible numerous all other claims. See Hall v. relief on trials, focused the first two (2009). Terrell, Ga. 679 S.E.2d cousin, Jermaine on Terrell’s defense *6 cor- (“Johnson”), sought then federal habeas gunman as the lone Johnson relief, at court denied. present Terrell was not which the district argued pus Terrell himself testified court denied Terrell’s the crime scene. After the district although he admitted COA, request the third trial and request granted for a we checks, he de- stealing forging ineffective assistance of on two claims of beating in the or (1) nied involvement counsel was ineffec- counsel: whether However, murder of Watson. the services of a failing tive for to obtain and recommended guilty found Terrell (2) whether pathologist; forensic con- for the malice murder death sentence challenging counsel was ineffective for not viction, following aggravating finding robbery statutory sufficiently the armed (1) murder was com- circumstances: independent our aggravator. upon Based engaged in an mitted while Terrell was review, that there is no merit we conclude robbery; an armed aggravated battery and of ineffectiveness of coun- to these claims (2) or outrageously the murder was sel, affirm the district and we therefore horrible, vile, in that wantonly or inhuman judgment denying Terrell court’s torture, depravity of mind and it involved relief. victim before aggravated battery to the an (7) 17-10-30(b)(2), § death. See O.C.G.A. II. ISSUES (1998). jury’s accepted trial court The court erred the district and, A. Whether impos- in addition to recommendation that the state court’s denial sentence, sentenced Terrell ing the death
1261
of relief on Terrell’s claim of
to,
ineffec-
state court either
“contrary
or
regarding
tive assistance of counsel
involved an
application of,
unreasonable
clearly
hiring
law,
of a
established
pathologist
forensic
Federal
as deter-
to,
by
mined
contrary
Supreme
was neither
of
nor
un-
Court
the United
States;
of,
or ...
application
reasonable
was based on an
Strick-
unreason-
668,
able determination of
light
v.
the facts in
Washington,
land
466 U.S.
2052,
the State court
S.Ct.
finding that the state court’s denial that contradicts the governing law set of relief on Terrell’s claim of ineffec- forth Supreme Court, United States tive assistance of regarding counsel or when faced with materially indistin challenge robbery the armed guishable facts, it arrived a result that statutory aggravator was neither differs from Supreme precedent. Court to, contrary nor an unreasonable Corr., Kimbrough Sec’y, Dep’t of, application Strickland v. Wash- (11th 796, Cir.2009). F.3d An “unrea ington, supra, nor was on an based application” sonable clearly established unreasonable determination of the federal law occurs when “the state court facts. correctly identifies governing legal
principle ...
unreasonably
applies it to
III. STANDARD OF REVIEW
particular
the facts of the
case.” Bell v.
Cone,
685, 694,
535 U.S.
122 S.Ct.
habeas,
On
we review de novo
(2002).
1850,
erential standards they combine apply, AEDPA both 1. court decision State form of re doubly deferential produce granted court The state habeas there is view that asks ‘whether claim, Georgia Su- relief on this that counsel satisfied argument ” reversed, that Terrell finding preme Court Gis standard.’ deferential Strickland’s suffered that he could not demonstrate Seaboldt, 735 F.3d sendaner per- deficient Cir.2013) Richter, from his counsel’s (11th prejudice 562 U.S. (quoting 788). failing to obtain the assistance Thus, formance it is a at -, at S.Ct. analysis, In its pathologist. of a forensic petitioner obtains rare case which noted that first the state court as on an ineffective habeas relief federal testimony at trial from the State the state of counsel claim sistance Koponen, Dr. Mark pathologist, a forensic Id. on the court denied merits. was shot first that the victim testified who IV. DISCUSSION severely about the face and then beaten head, pistol. the butt of a possibly with pathol- obtain a A. Failure to forensic Koponen at 21. Dr. at 679 S.E.2d Id. ogist that the victim further testified trial district issue with the takes he had beating becаuse during alive adju- court’s that the state court’s membrane cover- bleeding underneath the ineffective assis- claim of dication at 21. 679 S.E.2d ing the brain. Id. to obtain the failure tance for counsel’s the victim was Koponen “Dr. testified was nei- pathologist services of forensic beating, during the conscious only possibly ap- to, an unreasonable contrary nor ther Id. definitely alive.” that he was Strickland, of, it based nor was plication *8 highlight- court then The state on an unreasonable determination testimony the state the ed proceedings. in the state facts did not that Terrell hearing and concluded trial court state agrees with the by his prejudiced that he was deficiently in demonstrate attorney performed that his failing in to utilize however, counsel’s ineffectiveness disagrees with he regard; this pathologist. finding that a forensic Georgia Supreme Court’s the presented testimony in the ha- perienced when he conducted autop- beas court from Dr. Jonathan Arden sy of However, the victim. by the time contradicting the conclusions of Dr. Ko- of his habeas testimony, Dr. Koponen ponen. generally Dr. Arden criticized highly was experienced and maintained Koponen’s autopsy Dr. of the victim. that his initial findings were correct. specifically, More he contradicted Dr. Arden, Dr. who could merely review the Koponen’s conclusion that the victim record for his habeas testimony, in stood was during alive the beating and stated no better position guess to second Dr. possible it was that the victim had Koponen’s original findings than Dr. Ko- been struck fewer times than the five or ponen did himself. six blow minimum by asserted Dr. Kopo- Dr. Koponen’s testimony that the vic- nen, in particularly light of possibili- tim was alive but possibly unconscious ty that the wounds were inflicted by supported the following statutory two some mechanism other than the pistol, (1) aggravating circumstances: that the such as stomping. Dr. Arden testi- murder was committed while Terrell fied that photographic evidence of the engaged was in aggravated battery minimal bleeding from the viсtim’s facial (2) that the murder was outrageous- wounds, blood, the lack of aspirated ly vile, wantonly horrible, or or inhuman presence only “minute contusions” in that torture, it involved depravity of in the brain tissue all indicated that the mind, and an aggravated battery to the victim was deceased before being beat- (7). victim. 17-10-30(b)(2), OCGA en. He also testified that Koponen’s Dr. Had the jury heard testimony like finding that Dr. the victim had bleeding in Arden’s, it would have been forced to space, subarachnoid which is the weigh the credibility of the experts’ area underneath two the membrane covering testimony brain, determine finding and his whether bleeding in victim was alive lacerated brain while beaten. tissue were Howev- inconsistent er, as with his the trial court correctly charged that the victim had no bleeding jury, depravity dura, may above and of mind below the be proven by which is a just showing membrane below the deceased body skull and which subjected was torn of the victim as the victim’s was to mu- skull was crushed. tilation or disfigurement.... serious Thus, even under Terrell’s theory new
Althоugh he did not note this fact in of the case and even in light of uncer- his trial testimony, Dr. Koponen re- tainty as to the exact number of sponded to blows the criticism of autopsy inflicted, the brutal beating findings this case habeas court with the supported would have statutory added ag- statement that he found clotted gravating blood circumstance that the ventricles of the murder interior of brain, outrageously vile, was wantonly victim’s which or he believed hor- rible, further or evidence that inhuman in that it the victim involved alive during beating. depravity of mind. Accordingly, He also ex- this plained that, that his findings Court concludes assuming minimal even tri- bleeding from the al performed wounds was counsel deficiently by [sic] con- fail- sistent with the victim having ing present lost testimony much from another of his pressure blood while still forensic pathologist, alive. Terrell has failed to The habeas court emphasized that Dr. show probability that the Koponen was young relatively inex- would have failed to beyond find *9 failure to cross-examine counsel’s trial statutory aggrava- doubt reasonable not result differently did Koponen on de- Dr. is based that circumstance ting support the suc- to sufficient prejudice of mind. pravity assis- ineffective Terrell’s overall cess statutory ag- of Furthermore, one of trial counsel claim. found tance must be circumstance gravating to jury free exercise becomes before (internal 452-54, 21-23 at 679 S.E.2d Id. As a sentence.... selecting discretion marks, footnotes and citations quotation a to show above, has failed noted omitted). jury probability court decision 2. Federal the existence declined to find have would robbery, which means an armed of review, the district On federal eligible for have been would analyzed only prejudice court regardless whether sentence death con- Court and Georgia Supreme the stat- have also found jury would supported the record evidence cluded that based circumstance aggravating utory factual determi- supreme court’s the state exercising its In of mind. depravity state that the It also concluded nations. eligible Terrell became discretion once in accord adjudication was supreme court’s sentence, jury not would a death progeny. The dis- and its with Strickland by swayed testi- significantly have been that the state trict court found already ex- had mony that the victim unreasonably apply Strick- not court did fact, pired when beaten. coun- that trial it determined land when away before passed had that the victim a forensic alleged failure obtain sel’s have severely mutilated would he was so Terrell be- prejudice did not pathologist argument counsel’s defense undercut different result likelihood of a cause the gruesome committed that whoever court district not was substantial. panic. in a did so and mutilation murder present- if had that even Terrell reasoned testimony would expert’s Terrell’s new testimony that pathologist’s ed the forensic mutila- the brutal suggested have he received the when the victim was dead body completely victim’s tion of the face, the head blows to the vic- depraved because senseless ag- of mind depravity still have to resist or flee. longer able tim was no repulsive to exist because gravator taken jury would have Certainly the the victim. See injuries to significant victim, possibly who was note that the Thus, 10—30(b)(7). the dis- O.C.G.A. 17— accounts, could not by all unconscious tes- Dr. Arden’s concluded that trict court if he were dead dur- pain have suffered would not timony, given beating, any benefit ing the to under- probability sufficient created revul- offset have been that would in the sentence. mine confidence death for no the victim at a sion mutilation Furthermore, purpose whatsoever. Analysis 3. timing over seeming quibble denied Ter- court properly The district have undercut death would the victim’s su- The state this claim. rell relief on theory, core which defense counsel’s trial found that correctly court preme during present not even that Terrell was of a the services engage failure to counsel’s Court Accordingly, this the murder. Ter- prejudice did pathologist forensic counsel’s that trial failure concludes of a different “likelihood rell because trial like that from testimony at present Richter, substantial.” Arden, not] result [was Dr. expert, Terrell’s new
1265
at -,
U.S.
1. State finding that its suрport To further to chal- failing in deficient Georgia Supreme Court appeal, the On supreme aggravator, state lenge con- this court and state habeas reversed the court, court, unlike state inef- was not that Terrell’s counsel cluded the armed not concede the armed that Strauss did challenge failing fective It noted robbery aggravator. that making factor. robbery aggravating in the closing argument during determination, supreme proffered the state this did not that the evidence sentencing phase although the state habeas court noted the crime theory support the State’s in his the victim $1.61 had court found instead, been in anger, had committed court found that Strauss continuously chal- that the evidence indicated that lenged the crime the armed aggravator. robbery [R. been in a panic, VII, had committed “perhaps 5-38, Vol. p. Doc. p. On 26.] response robbery intended having cross-examination, Strauss elicited testi- Terrell, wrong.” gone mony Ga. from the State’s investigator that he at 21. S.E.2d court found say could not certainty with that Watson argument this “a speculation be as to money had pocket when he was why person some other might have been murdered. questioned Strauss also Gra- *12 the scene of the murder and not a conces- ham eight-year about his delay in provid- that an robbery sion armed had been com- ing testimony that Terrell asked him to Hence, mitted.” Id. supreme state assist the robbery in and murder of Wat- court concluded that Terrell’s counsel did son. Strauss extracted from Graham that perform deficiently regard with to the he told an investigator that he only was robbery aggravator, armed testifying that because he parole wanted from testimony additional in the fact, sentence he serving. was In Gra- court, the habeas if presented ham that admitted when the State in- not in would probability have formed him that he would not a receive changed the of outcome Terrell’s sentence. deal in exchange for testifying, he initially Thus, it reversed the state habeas court’s testify. refused to Strauss had Graham grant sentencing phase relief to Terrell admit to numerous convictions and had this claim. him the jury inform that he currently
serving a life sentence aas result of a 2. Federal court decision felony murder conviction.
In analyzing the state court’s decision The district court also found that AEDPA, under the district court first de- Strauss did not concede the armed rob- termined that state supreme court’s bery aggravator during the sentencing decision was not based on an unreasonable phase closing argument. Strauss was determination of the facts. The record commenting on State witness Sam House’s supported the state court’s find- testimony alleged when he made the con- ings regarding the lack of cash in the cession. murder, victim’s left-front pocket after the The keeps saying D.A. an- [Terrell] was purchase of clothes with cash on gry, this an anger crime. Where is day murder, Watson’s withdraw- there anger shown the evidence al of days the bank two $150 before between Mr. Watson and [Terrell]? murder, Raymond testi- Graham’s Where? It’s not there. That’s the mony that Terrell asked him to assist theory of things, D.A.’s but it has not robbing sum, and murdering Watson. been shown. the district court found that overwhelming says He this is a beating. deliberate circumstantial supported evidence You heard Sam expert. House who is an
jury’s finding of robbery the armed aggra- says Sam panic this is a crime. There vator. probably was a crime robbery intend- The district ed, court next that say determined I still whatever. the evidence the state supreme court did not struggle unreason- a indicates there. That’s the ably apply Strickland facts of the thing that makes on that and sense case in finding Strauss that did not render things got then out of hand and went First, performance. deficient panic. district factual find supreme court’s the state that that he deliv- you to believe
They want provides record ings were erroneous. planned a sense of beating in the a ered sup evidence circumstantial powerful that It beating. wasn’t concentrated the armed rob jury’s port fell everything panic when It was way. provid the State factor: bery aggravating apart. (1) strong supported that ed evidence Thus, 5-39, p. 1709-10.] Doc. Vol. VII [R. armed with Terrell was inference that closing, the district of the in the context (2) crime; that day firearm on conced- was not found court days prior two cash because the victim had robbery occurred. ing that murder, from the he withdrew $150 record, court the district Reviewing (3) normally bank; carried that the victim for Strauss it was reasonable which was pocket, left-front cash acquittal at energy on time focus his arrived investigators out when turned argu closing in his residual doubt trial and (4) scene; the crime continuously emphasized ment. car propensity to known of Watson’s plac physical lack of *13 the State’s because he pocket ry cash in his left-front scene, he built Terrell at crime ing amount of time significant a spent had during trial jurors’ minds in the doubt (5) victim; Terrell’s mother that with the gunman. the lone to as pointing Johnson murders, day prior to testified that testimo presented sentencing, At Strauss monеy to had the he she asked Terrell family members ny Terrell’s from that he did and he told her repay Watson nice, respectful, that Terrell was Mends (6) that later not; a witness that testified father. family, and a good of his protective murder, pur day of the on the that Terrell was over emphasized Strauss (7) cash; that with chased clothes did not deserve person who good all a that Mend testified long-time had Noting that penalty. Strauss death robbery and in the him to assist asked hear the state habeas away before passed record, this on Based murder Watson. that presumed court the district ing, presumption overcome Terrell cannot attorney, “did Strauss, trial experienced the state regard with of correctness done, that he he should have what findings. See Rose factual supreme court’s judg professional exercised reasonable (11th McNeil, Cir. 634 F.3d v. 427 F.3d Campbell, v. Callahan ment.” 2011) under AED- (stating that deference (11th Cir.2005) (quoting Williams do habeas court requires that federal PA (11th Head, Cir. 185 F.3d the factual simply disagree with more than 1999)). Therefore, totality of the given “[ijnstead, court; it of the state findings that evidence, court concluded the district find the state court’s that must conclude reasonably applied supreme court the state support rec even fair ings lacked ren that Strauss Strickland ord”). to this in regard effective assistance dered allegation. did Next, supreme court the state to the unreasonably Strickland apply Analysis
3. adjudicating Terrell’s claim. facts deficiently. Con perform found, did not the state Strauss district court As the assertion, did not Strauss trary to Terrell’s adjudication of court’s supreme robbery aggravating armed concede rea- counsel claim ineffectiveness rather, investiga factor; paraphrased he First, demon- Terrell cannot sonable. testimony to show House’s tor Sam convincing evidence by clear and strate sentencing phase case in order to create friends at the gaps support in the State’s jurors. theory the defense that Terrell doubt in the minds was not the person continu- kind of who would murder an record demonstrates Strauss el- derly, infirm A person. family pastor tes- ously challenged the evidence tified that Terrell had been active in by the to show that an armed rob- State cross-examination, always church and had respectful, been On bery occurred. prison pastor, and a who counseled Terrell investigator Sam Strauss elicited month, several times a testified that Ter- say certainty House that he could not with rell a good, positive had attitude. Friends money had in his out-turned Watson nice, testified that Terrell caring, pocket and that could pocket front protective person, respected who his elders disturbed when Watson re- have been all, good and was a father. keys way car. trieved his on presented ten people who testified that on Strauss also elicited from Graham good person Terrell was a who did not waited cross-examination that Graham penalty. the death deserve eight years anyone to tell about Terrell’s offer to and murder Watson and that rob record, totality of Given the initially testify he refused to he when we conclude the state court get learned he would not a deal on his reasonably determined that Strauss did Additionally, argued sentence. not perform deficiently during the sentenc before the trial court that the armed rob- ing phase by focusing on the residual bery aggravator should not be submitted theory focusing solely doubt instead of because State’s rebutting support the State’s evidence in *14 that an armed was insufficient to show robbery aggravating of the armed factor. robbery had occurred. Furthermore, say we cannot that if even theory
In light of the State’s that Terrell performed deficiently Strauss in this re anger killed Watson out of because Terrell gard, performance that his deficient pressed charges knew that Watson prejudice. jury caused Terrell arrested, had him Terrell would return to proven that the State had that the murder reasonably challenged the prison, vile, Strauss outrageously wantonly or horri physical support ble, torture, State’s lack of evidence to in that it or inhuman involved reasonably employed its case. also mind, Strauss depravity aggravated of and an bat theory during of doubt defense residual tery to the victim death. This find before guilt sentencing phases of the ing jury impose was sufficient for the highlighted gaps trial. all the Therefore, Strauss penalty. the death there is no evidence, jurors the State’s and he told the probability reasonable that Strauss’s fail if they that removed from their consider- challenge robbery aggra- ure to the armed testimony ation the of Johnson and Gra- changed vator would have the outcome of ham, long rap two convicted felons with sentencing. sheets, “there is not a shred of evidence AEDPA, however, Under we must eval- clearly
that [Terrell] connects uate not whether there was a reason- VII, 5-39, p. crime.” Doc. [R. 1707.] Vol. result, probability of a different able exploited unreliability Strauss of these also, jurist could whether two witnesses and continued to assert Ter- jurists If decide otherwise. fairminded rell’s innocence. disagree could about the correctness of the
Furthermore, supreme testi- state court’s decision mony family provided from Terrell’s members and did not demonstrate 1270 I. counsel, then the of
ineffective assistance
of Strick
application
court’s
supreme
state
relief,
claim for
In Mr. Terrell’s second
Thus,
pre
AEDPA
land was reasonable.
Strauss,
attorney,
argues
he
that his
John
federal habeas
granting
cludes
us
assistance of counsel
provided ineffective
Corrs.,
Sec’y, Dep’t
v.
relief. See Evans
failing
adequately challenge
the stat-
by
(11th Cir.2013) (en
703 F.3d
1326
utory aggravating circumstance of armed
—
—,
denied,
banc),
133
cert.
U.S.
evaluating
an ineffective as-
robbery.
(2013).
Based
186 L.Ed.2d
S.Ct.
claim,
examine
of counsel
we must
sistance
record, we conclude
upon our review
per-
Terrell’s counsel
both whether Mr.
factual find
supreme court’s
that the state
so,
deficiently and if
whether Mr.
formed
clearly
and were
ings
еrroneous
were
by that deficient
prejudiced
Terrell was
record,
by
and that the state
supported
Fretwell,
Lockhart v.
performance.
unreasonably apply
did not
supreme court
838, 842,
364, 369,
113 S.Ct.
U.S.
of this case. Ac
to the facts
Strickland
(1993). If Mr. Terrell fails to
L.Ed.2d 180
the district court’s
cordingly, we affirm
performed
counsel
show either
habeas relief on
judgment denying Terrell
deficiently
prejudiced
or that he was
this claim.
ineffective
performance,
that deficient
of counsel claim fails. Strick-
assistance
CONCLUSION
Y.
Washington,
466 U.S.
land
AEDPA,
forth in
Under the rubric set
(1984).
2052, 2069,
AFFIRMED. agreement unanimous on either the armed MARTIN, Judge, concurring: Circuit robbery charge charges. or murder Ma 1259-60; II, jority Op. at 572 granted Brian Keith Terrell was Cer- at 600. When Mr. Terrell was S.E.2d for his federal ha- Appealability tificate of time, the second the State tried I agree on two issues. with appeal beas dropped robbery the armed count. But that Mr. Terrell majority’s the conclusion robbery the State still relied on armed of his ultimately not succeed on either does jury it to find evidence when asked separately, I write two claims for relief. robbery aggravating as an circum armed however, Georgia Supreme to address the during penalty phase stance analysis Mr. Terrell’s second Court’s Again, jury appeared the second to trial. claim, I understand to misstate which robbery, reject theory the state’s on armed clearly precеdent from the established that it did not find armed to the extent My pur- Supreme States Court. United robbery aggravating an circumstance. as articulate simply properly here is pose State, 271 Ga. See Terrell rule in this circum- Supreme Court (1999) (Terrell I) (setting dilution S.E.2d protect against in order to stance circum- aggravating forth the two other subject. jurisprudence on this reason, jury apparent in the second Then for some found stances trial). trial, the record at Mr. Terrell’s third Mr. challenge Strauss did not the State’s asser- argument is that Mr. Mr. Terrell’s Rather, robbery. tion of an armed Mr. deficiently because he performed acknowledged jury that strategy this successful abandoned “[tjhere was a crime probably robbery by failing adequately third trial chal- intended, again whatever.” It is true that lenge robbery aggravator. the armed in the third Mr. Strauss made some view, essentially Mr. Terrell’s Mr. Strauss attempts to shed doubt on the evidence of jury conceded to the that an armed rob- robbery during cross-examination of bery Again, had been committed. this the State’s witnesses. But he did not build concession was in contrast to Mr. Strauss’s upon this by dedicating cross-examination approach at trials one and two. And a portion closing argument of his to ex- concession, based on this Mr. Terrell ar- plain why there was insufficient evidence gues jury that the at his third trial arrived Indeed, robbery. of an armed juries than the different conclusion time that he mentioned the robbery armed trials, it from the first two when selected acknowledged was when he robbery aggravating armed factor to as that robbery. there had been a On this charge. the murder record, and if I were deciding this case de Georgia Supreme rejected The Court novo, I would find that Mr. Terrell’s coun- argument Mr. Terrell’s that his counsel sel conceded the robbery aggrava- armed robbery, conceded the armed and indeed tor during closing argument. affirmatively Mr. Terrell’s Also if I deciding were the issue in the no counsel had made such concession. instance, first I would find Mr. (Terell III), Ga.448, Hall v. Terrell abandoning Strauss was ineffective for (2009). Georgia S.E.2d Su- strategy which had twice been so success- interpreted preme Court counsel’s state- Indeed, ful for Mr. Terrell. I agree simply speculation why ment as as to some with Mr. Terrell that when his counsel person might other at the scene been robbery, conceded the' performance majority of the murder. Now the on Id- constitutionally simply deficient. I am panel agreed Georgia this has with the pressed hard why to understand Mr. this, Supreme adding Court’s necessary Strauss felt that it was or bene- challenged that Mr. Terrell’s counsel ficial strategy to abandon a that had been robbery during evidence of the armed successful in not one but of Mr. both Ter- cross-examination of the various witnesses. rell’s earlier It trials. is true Mr. Majority Op. at 1268-69. strategy at penalty phase Strauss’s fact-finder, If I were the I would come emphasize regarding was to residual doubt *16 to a different conclusion about Mr. Mr. But I guilt. see no reason argument Georgia Strauss’s than did the why strategy required this a concession on Supreme my colleagues on this Court and Indeed, robbery. the armed Mr. Strauss trial, panel. At Mr. Terrell’s first Mr. effectively argued at the second trial that vigorously argued jury, robbery there had been no armed and that there, happened robbery “Whatever out Mr. mur- Terrell was not involved the part was not of it ... In It’s there.” upon specifics der. Based these of this way, Mr. cogently record, the same and reviewing if I de were this case persuasively argued novo, at Mr. Terrell’s sec- perform- I would find that counsel’s trial that government’s ond the evidence of ance at Mr. Terrell’s third trial was defi- robbery “guess an armed work.” cient. was omitted)); Upton, also Sears v. see
However, deciding this case I am not 3266-67, -, statutory per- 130 S.Ct. My role U.S. the instance. first (2010) curiam); (per findings of 177 L.Ed.2d only to review mits me Belmontes, 15, 26, 130 Georgia of v. 558 U.S. Wong of the State highest court (2009) 383, 390, (per I cannot con- L.Ed.2d 328 Because S.Ct. reasonableness. curiam). result, Georgia Court’s Georgia Supreme As a Su- clude that “an inquired this was unreason- into finding factual should have preme Cоurt facts,” of the see 28 determination of the armed rob- able how counsel’s concession 2254(d)(2), I must concur with to sen- bery jury’s U.S.C. decision affected my panel members majority of to death —not whether tence Mr. Terrell that his failed to establish have, have, Mr. Terrell has jury or could attorney deficient. robbery factor in aggravating the armed point I this Again, event. make be-
II. importance applying cause of concern arises from My deeper going in these cases for- proper standard analysis of the Georgia Supreme Court’s ward. Mr. Terrell’s Strickland prejudice prong of agreed majority I with the of this high court made its Georgia claim. The that, findings of the panel upon based by asking whether prejudice determination Court, can- Supreme Mr. Terrell Georgia probability” that
there was a “reasonable performance by his not establish deficient changed finding its would have third trial. No counsel robbery,” of an armed about “the existence necessary. prejudice about is therefore at the had advocated even Mr. Strauss record, majori- I concur with the On this armed rob- trial on the issue of the third the District Court’s ty’s affirming decision way he had at the first bery in the same relief to Mr. Terrell. denial III, 679 S.E.2d at two trials. Terrell added). way, the Said another (emphasis Supreme inquiry Court’s
Georgia for the eligibility Mr. Terrell’s
whether by his counsel’s was affected penalty
death proper But is not the performance. this CONTROL LIGHTING BALLAST clearly inquiry required under established LLC, Plaintiff-Appellee, Supreme precedent. Court reviewing prejudice a record for dur- NORTH PHILIPS ELECTRONICS trial, sentencing phase capital of a ing the CORPORATION, AMERICA all evi- required reweigh are
we
Defendant,
old,
bad,
dence,
good and
new and
can,
we
the probability
determine as best
Lighting Technologies,
Universal
outcome. See Porter v.
of a different
Inc., Defendant-Appellant.
McCollum,
130 S.Ct.
558 U.S.
(2009)
453-54,
(per cu-
riam) (“To con- probability, we assess Appeals, United States Court totality mitigation the available sider the Circuit. Federal evidence—both that adduced *17 Feb. 2014. pro- in the habeas the evidence adduced against it the evi- ceeding reweig[h] aggravation.” (quotation marks
dence