MICHAEL WADE NANCE v. WARDEN, GEORGIA DIAGNOSTIC PRISON
No. 17-15361
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
April 30, 2019
D.C. Docket No. 1:13-cv-04279-WBH; [PUBLISH]
Petitioner-Appellant,
versus
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Georgia
(April 30, 2019)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit Judges.
Michael Wade Nance, a convicted murderer under sentence of death in Georgia, appeals the district court‘s denial of his
I. FACTS AND PROCEDURAL HISTORY
The facts of this case have already been thoroughly set out by the Georgia Supreme Court in Nance v. State, 526 S.E.2d 560 (Ga. 2000), Nance v. State, 623 S.E.2d 470 (Ga. 2005), and Humphrey v. Nance, 744 S.E.2d 706 (Ga. 2013). There is no point in our repeating all, or even most, of those facts. It is enough to note here that Nance robbed a bank, and in the process threatened to kill some of the tellers. Nance, 526 S.E.2d at 563. They were not killed, but Gabor Balogh, an innocent driver who was backing his car out of a parking spot at a nearby store, was not as fortunate. Id. at 563-64. In order to steal Balogh‘s car Nance shot him to death as he was pleading “No, no.” Id. at 564.
After a three-week trial in 1997, the jury returned a verdict finding Nance guilty of malice murder and five other crimes and sentenced him to death for the murder. Id. at 562 n.1. The trial court entered a judgment pronouncing him guilty of the crimes and imposing a death sentence. Id. On direct appeal, the Georgia Supreme Court affirmed Nance‘s convictions but reversed his death sentence “due to a prospective juror being improperly qualified to serve on the jury.” Nance, 623 S.E.2d at 472. A new sentencing trial in 2002 resulted in a new death sentence, which the Georgia Supreme Court affirmed on direct appeal. Id.
Nance then filed a petition for collateral relief in the state trial court. That court granted him relief from the death sentence after concluding that Nance had received ineffective assistance of counsel at the resentencing trial. The State appealed, and in 2013 the Georgia Supreme Court reversed. Nance, 744 S.E.2d at 709. At the end of 2013, Nance filed a
II. DISCUSSION
The Georgia Supreme Court rejected Nance‘s ineffective assistance claim when it reversed the state trial court‘s grant of collateral relief, and it rejected his stun belt claim when it affirmed the sentence on direct appeal from the resentencing trial. Nance, 744 S.E.2d at 720-31; Nance, 623 S.E.2d at 473. Because both rejections were on the merits, federal habeas relief is barred unless the rejection of one or both claims (1) “was contrary to, or involved an unreasonable application of, clearly established
It was meant to be, and is, difficult for a petitioner to prevail under that stringent standard. Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 786 (2011); see also Burt v. Titlow, 571 U.S. 12, 19, 134 S. Ct. 10, 16 (2013) (“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.“).
A. The Ineffective Assistance of Counsel Claim
As we have mentioned, Nance does not contend that his trial counsel should have, or profitably could have, done more to investigate and discover mitigating circumstances evidence for use at his resentencing trial. And it is no wonder that he doesn‘t.
For the first trial, in addition to consulting with the attorneys who had represented Nance on the related federal bank robbery charges, and reviewing all of their files, Nance‘s two counsel hired multiple investigators and mitigation specialists to help them conduct their investigation. As part of their investigation, counsel traveled to Nance‘s hometown in Kansas to interview witnesses about his childhood, mental development, history of drug and alcohol abuse, and the abuse that he suffered at the hands of his adoptive father. They also consulted with two mental health professionals who evaluated Nance before his federal bank robbery trial, retained a toxicologist to calculate the concentration of tear gas in Nance‘s car after dye packs that had been hidden in the stolen currency exploded, interviewed at least four individuals with expertise in dye packs, subpoenaed information from the dye pack manufacturer, interviewed the state microanalyst who tested Nance‘s clothing, inspected the physical evidence in the case, visited the crime scene, examined the material the State provided during discovery, and interviewed the State‘s experts. Not only that, but Nance‘s counsel also obtained the state‘s forensic report, emergency medical technician records, the murder victim‘s autopsy report, police records, records from federal agencies, prison records, marriage and divorce records, birth and death certificates, medical records, school records, and probation records, among other documents that might be relevant to Nance‘s case. It is as thorough an investigation into mitigating circumstances as we have ever seen.1
Faced with the impossibility of finding fault with the investigation trial counsel conducted, Nance‘s present attorneys have claimed that trial counsel were ineffective in how they used or failed to use all that they learned in their extensive investigation. More specifically, his present attorneys fault counsel for deciding not to present more of the mitigating circumstance evidence, especially more expert witnesses, than they did.2
It is especially difficult to succeed with an ineffective assistance claim questioning the strategic decisions of trial counsel who were informed of the available evidence. Even a dozen years before there was any AEDPA deference, the Supreme Court noted that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); accord, e.g., Hinton v. Alabama, 571 U.S. 263, 274, 134 S. Ct. 1081, 1088 (2014) (per curiam); Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420 (2009).
Decisions about which experts to call and which issues to press during trial are, without a doubt, strategic. See Hinton, 571 U.S. at 275 (“The selection of an expert witness is a paradigmatic example of the type of ‘strategic choice’ that, when made ‘after thorough investigation of the law and facts,’ is ‘virtually unchallengeable.‘“) (alterations and citation omitted); Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.“); Raleigh v. Sec‘y, Fla. Dep‘t of Corr., 827 F.3d 938, 956 (11th Cir. 2016) (same); see also Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 5 (2003) (per curiam) (“When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.“).
In the post-AEDPA era, it is even more difficult to obtain federal habeas relief on a strategy-questioning ineffective assistance claim, or any type of ineffectiveness claim for that matter. Strickland mandated one layer of deference to the decisions of trial counsel. 466 U.S. at 689 (“Judicial scrutiny of counsel‘s performance must be highly deferential.“); id. (“Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance . . . .“). When
This is not one of those rare, or “rarer still,” cases. At the resentencing trial, Nance‘s counsel called no fewer than 23 mitigation witnesses, whose testimony covered, among other things, his difficult family life; his adoptive father‘s alcoholism, aloofness, and occasionally abusive behavior; his long-term cognitive difficulties and low IQ; his history with drugs and alcohol, particularly the bad influence of his drug-using uncle; and Nance‘s adaptability to prison life, including both expert testimony that he was “very adaptable” and the testimony of seven sheriff‘s deputies that he had been a “model” inmate in jail while awaiting his resentencing trial. Nance, 744 S.E.2d at 718-19, 720-21. Writing for the Georgia Supreme Court, Justice Hunstein thoroughly and convincingly explained why the strategic decisions that Nance‘s counsel made regarding the resentencing trial did not fall outside the “wide range of reasonable professional assistance” that the Sixth Amendment requires. Harrington, 562 U.S. at 104 (quotation marks omitted). Her opinion sets out in detail the evidence that trial counsel elicited on Nance‘s intellectual impairments and the effect of the dye packs, and it explains why their decision not to call an expert about Nance‘s possible brain damage was reasonable under the circumstances. Nance, 744 S.E.2d at 720-29. It also explains why, even if counsel‘s performance was somehow deficient, it did not prejudice Nance. Id. at 722-23, 728, 729-31. Having reviewed Justice Hunstein‘s thoughtful opinion, we cannot say that it was objectively “unreasonable,” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007), or that every fairminded jurist would disagree with it, Harrington, 562 U.S. at 101. Far from it.
B. The Stun Belt Claim
Nance also claims that the state trial court violated his constitutional rights by requiring him to wear a stun belt under his clothes during the resentencing trial without holding a new evidentiary hearing to determine whether the restraint was necessary, and that the Georgia Supreme Court‘s holding to the contrary conflicts with clearly established federal law set out
A state court‘s decision cannot be contrary to, or involve an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court,”
The first three decisions that Nance relies on all involve visible security restraints and the unique constitutional problems they present — namely, the impact that they have on the jury‘s perception of the defendant and the public‘s perception of the judicial process. In Deck v. Missouri, 544 U.S. 622, 630-33, 125 S. Ct. 2007, 2013-14 (2005), the Court held that one reason state trial courts could not routinely shackle defendants during trial is that it would undermine the defendant‘s presumption of innocence in the eyes of the jury, make the defendant appear dangerous to the jury, and threaten the dignity of the judicial process and the public‘s trust in it. In Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346 (1986), the Court held that it was not presumptively unconstitutional to seat additional uniformed officers in the front row of the courtroom because their presence would not necessarily impact the jurors’ impression of the defendant. The Court reasoned that because jurors “may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence,” the officers “need not be interpreted as a sign that [the defendant] is particularly dangerous or culpable.” Id. And in Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 1060-61 (1970), the Court held that a disorderly defendant could be removed from the courtroom and added in dicta that doing so was preferable to binding and gagging him because “the sight of shackles and gags might have a significant effect on the jury‘s feelings about the defendant” and “be something of an affront to the very dignity and decorum of judicial proceedings.”
The visibility of the security measure at issue was central to the reasoning of all three of those decisions, and the Court limited its holdings accordingly. See Deck, 544 U.S. at 624 (“We hold that the Constitution forbids the use of visible shackles during the penalty [and guilt] phase . . . unless that use is justified by an essential state interest . . . specific to the defendant on trial.“) (quotation marks omitted, first emphasis added); id. at 629 (“[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination . . . that they are justified by a state interest specific to a particular trial.“) (emphasis added); id. at 632
The Georgia Supreme Court concluded that Nance‘s stun belt was not visible to the jury or the public because it was worn under his clothes. See Nance, 623 S.E.2d at 473 (“Unlike shackles, [the stun belt] is worn under the prisoner‘s clothes and is not visible to the jury.“). And Nance has not pointed to any evidence to show that finding was “an unreasonable determination of the facts in light of the evidence,”
The holdings in Deck and Holbrook, as well as the dicta in Allen, are not applicable to security devices or measures that are not visible. And a federal habeas court‘s focus is on Supreme Court holdings, not potential extensions of them. See Woodall, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court‘s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.“); id. at 419 (“Clearly established Federal law for purposes of
The other Supreme Court decision that Nance points to is Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810 (1992). The holding of that decision is irrelevant to Nance‘s case. In Riggins the Supreme Court held that a state trial court could force a mentally ill inmate to continue taking prescribed antipsychotic drugs during the course of his trial if there was an overriding justification and the drugs were medically appropriate. Id. at 134-35. The Court did not address security restraints and did not purport to establish a broader rule about court practices that might otherwise interfere with an inmate‘s ability to participate in the trial. Indeed, the Court noted that its decision was limited to the facts in the record of that case. Id. at 133 (“The record in this case narrowly defines the issues before us.“).
Finally, Nance cites this Court‘s own decision in United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002), where we held that the “decision to use a stun belt must be subjected to at least the same close judicial scrutiny required for the imposition of other physical restraints.” (Quotation marks omitted.) Unlike the Supreme Court decisions Nance relies on, our Durham decision actually does involve stun belts. If Nance were a federal prisoner,
Nance argues that we should sidestep this non-side-steppable rule by holding that Durham is enough because it “demonstrate[s]” the law that the Supreme Court has clearly established. Under Nance‘s “reasoning,” every circuit court decision on any point would demonstrate the law the Supreme Court has clearly established on that point, even if the Supreme Court did not yet know it. And
The Supreme Court — the only Court that can clearly establish federal law for purposes of habeas review — has not yet decided whether the use of stun belts (or materially similar restraints) is constrained by the Constitution, nor has it established a standard for evaluating such claims. For that reason, the Georgia Supreme Court‘s decision on this issue is not “contrary to” and does not involve “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” under
AFFIRMED.
ED CARNES
CHIEF JUDGE