*1 Duboc, private the MLAT show that as a may
рarty, not use the MLAT as a defense to the forfeiture of the Thailand condos.
III. CONCLUSION reasons, For the affirm foregoing we amending district court’s order the 1999 forfeiture order include Duboc’s Thai- land condos.
AFFIRMED. Wayne HOLSEY, Robert Petitioner-
Appellant, WARDEN, GEORGIA DIAGNOSTIC
PRISON, Respondent-Appellee.
No. 09-14257. United States of Appeals, Court
Eleventh Circuit.
Sept. 2012. Rehearing and En Rehearing Banc
Denied Nov.
1231 circumstances mitigating of presentation (Courtr-Appointed), H. Dunn Thomas intelligence limited about his (Court-Appointed), Kammer Brian S. GA, Holsey Center, Atlanta, troubled, for childhood. abusive Resource Georgia II, No.2000-V-604, The at 82-84. Su- Appellant. reversed, howev- Georgia Court of preme Burton, Attaway State Beth Patricia shown that er, Holsey had not holding Atlanta, GA, Ap- for Dept., Georgia Law lawyers’ trial by his prejudiced he was pellee. III, 642 S.E.2d at Holsey failures. alleged 60-62. 2007, Holsey filed 28
In November of habeas petition § 2254 for a writ U.S.C. CARNES, BARKETT Before pe- The district court denied corpus. EDMONDSON, Judges. Circuit Hall, 2, v. No. July Holsey 2009. tition on CARNES, Judge: Circuit 2009) (M.D.Ga. 3:07-cv-129(CDL) 2, July December morning hours of early In the for moved TV]. [hereinafter Holsey robbed 17, 1995, Wayne Robert which the dis- appealability, a certificate of Geor- Milledgeville, store convenience granted on two issues: trict court his car was Minutes later and fled. gia, (1) jurists could Whether reasonable Deputy Sheriff County Baldwin stopped by Georgia Supreme disagree that who was deputy, Robinson. Will decision, reversed the which Court’s old, the vehi- years approached twenty-six as to sentencing [Hol- relief grant Fourteen him dead. cle. shot assistance of coun- sey’s] ineffective 1997, later, February of months claim, on unreasonable sel was based malice murder and Holsey of convicted fact, on an determinations of and/or jury fixed his sen- robbery. The armed clearly application unreasonable con- malice murder at death on the tence law, established federal and/or viction, imposed that sen- and the court clearly estab- in contravention Georgia’s death He has been tence. law; [and] lished federal years. past for the fifteen row (2) Georgia Supreme [Whether] years, Holsey has those fifteen During Georgiá’s affirmance of Court’s appeal court direct exhausted his state doubt standard unique reasonable Hol challenges. See postconviction state contra- mental retardation claims for State, 524 S.E.2d sey v. 856, Ga. unreasonably applies venes and/or (1999) (direct I]; Holsey v. [Holsey appeal) Supreme Court established U.S. No.2000-V-604, Sup.Ct. of Butts Schofield, the execution precedent prohibiting (Final Order on (May 2006) Cnty. offenders and mentally retarded Habeas Cor Petition for Writ of Amended Process con- mandating federal Due ]; Holsey, II pus) [Holsey Schofield proof burdens of straints on state (2007) (collateral 642 S.E.2d Ga. fundamental feder- protect meant to Holsey’s convictions [Holsey appeal) III]. (Quotation rights. al constitutional di were affirmed on death sentence omitted.) marks I, at 524 S.E.2d appeal. rect the COA granted district court After the proceedings, postconviction In the state issues, the second we resolved on those Holsey’s death sen vacated the trial court v. Hum- case. Hill another issue lawyers had tence, that his trial concluding (11th Cir. 1360-61 phrey, 662 F.3d at the sen ineffective assistance rendered 2011) (en Georgia banc), that the we held regard Holsey’s trial tencing phase Supreme affirming Court’s decision Deputy his head. managed Robinson state’s doubt reasonable standard men- to fire several shots sustaining before tal retardation claims did not contravene fatal head wound. clearly Supreme established prece- Court After the shooting, another deputy *3 dent. Our Hill disposes decision spotted the Probe and patrol turned his question.
second opinion COA This ad- chase, give vehicle around to but the dresses the first one. Probe sped away and escaped. Wit- nesses observed the traveling Probe at a I. THE TRIAL high speed rate of through a light red 8, 1996, January On Georgia grand a and into of oncoming lanes traffic. One Holsey murder, indicted for malice Holsey witness who knew testified that murder, felony robbery. armed Four she saw him alone in the Probe as it days later the State filed a notice of its passed by at the light. red intent to seek the penalty. death The trial Having thus far capture, evaded Hol- appointed court Andrew Prince as lead sey girlfriend, Jackson, called his Mary counsel to represent Holsey trial, at and asked pick her to him up at his Brenda Trammel served as Prince’s co- sister’s house. specifically He directed counsel. Jackson to come in her Jeep blue Chero- kee vehicle than rather in her burgundy- A. The Guilt Phase colored automobile. When Jackson ar- The guilt phase of Holsey’s began trial house, rived at sister’s Holsey February on 1997. As the Supreme called to Jackson from behind a fence on Georgia recounted, Court of has the State a hill. Holsey had changed clothes since guilt phase proved the following: he left Jackson’s house several hours Wayne Robert Holsey a robbed Jet earlier. Jackson refused re- Food Store in Milledgeville with a quest to take him to his mother’s house handgun shortly before 1:30 a.m. on so he could police scanner, monitor a but December received Jackson agree did to his request to drive money from both the register cash him past the motel where the murder the lottery telling machine after had occurred and then back to his sis- n store clerk, “Bitch, I you give want by ter’s way house of back roads. When me all your money.” Holsey’s voice house, back at his sister’s Holsey direct- was recorded on the store’s surveillance ed park Jackson to Jeep her Cherokee videotape and was by identified at trial behind the Probe to conceal its license Holsey’s girlfriend. Holsey fled the plate. As and Jackson sat in the convenience store in a red Ford Probe parked Cherokee, Jeep police a officer automobile he had borrowed from his spotted the Probe and verified that its girlfriend sister’s earlier that night. plate license number matched the li- The red Probe stopped Roy- plate cense number the victim’s radio al Inn Motel approximately four min- call. Holsey Jeep Cherokee, exited the utes later Deputy William Edward refused the officer’s put command to Robinson, IV. Deputy Robinson made up, hands looked though around as a radio call identifying the red Probe’s searching route, for an escape and then plate license number and ap- then ultimately surrendered. proached the holding automobile flashlight. Law Deputy discovered, enforcement Robinson received officers wounds, two bullet right one to his hidden house, arm near sister’s and one to the back of the right side of clothing that matched the clothing worn prison. The State called Scott robbery perpetrator and served armed testify underlying facts Jackson’s son. Maher belonging hat nearby concealed weapon was conviction. Maher testified that murder by a Hol- night civilian. at a working Milledgeville and was later found clerk him 8,1983. taken from sey’s tennis shoes were July Holsey, store on convenience arrest, expert time, after eighteen years old who was blood of the shoes had that one store, showed hit Maher in face entered vic- with the it with DNA consistent brick, emptied store’s cash gave strong physi- tim’s blood. testimony, After Maher’s register.1 when loudly screamed cal resistance and introduced State *4 attempted to conduct initially officers July in serving 1990 after seven paroled A hand. test on his gunshot residue years placed pro sentence on Holsey’s metal test of trace detection of his bation for remainder sentence. and ren- hand was administered later Holsey’s The State next introduced 1992 Holsey’s consistent with dered result for two guilty plea convictions counts of which having weapon, held the murder aggravated pos- assault and one count of A bullet grips. metal with wooden was of a aby session firearm convicted felon. Probe matched recovered from the was convictions, the Based on those trial state Deputy weapon. service with Robinson’s probation court had revoked his for the from Robin- Deputy The bullet retrieved robbery armed conviction and or- 1983 during autopsy head son’s him to remaining dered serve the term of to handgun belonging matched with a prison. in The sentence court Mary Jackson. girlfriend, years five Holsey proba- also sentenced to admitted Jackson testified convictions, run tion for three to her after murder that he had to consecutively with the remainder of the handgun. taken the jury for the conviction. sentence The III, at 59. 642 S.E.2d the sentencing heard all about that at February jury returned On Holsey’s capital murder trial. phase Holsey guilty of malice finding a verdict jury more The also heard details con- murder, murder, and armed rob- felony to cerning leading Holsey’s the crime three although felony murder con- bery, “[t]he aggravated for assault convictions by operation of law.” viction was vacated possession. and felon Kenneth Sim- sentencing phase 475 n. 1. The Id. at that, mons testified while was at the began day. trial the next Lounge Milledgeville Master’s
Soul Sentencing B. The Phase 22, 1992, February Holsey attacked him him behind times from and stabbed four sentencing phase, At the start of knife. of Holsey’s As a result at- with learned criminal rec- jury tack, was knocked out and suf- Simmons intro- for the first time. State ord Simmons, punctured lung. Scotty fered for guilty plea conviction duced cousin, first who is Kenneth Simmons’ tes- injury. robbery bodily serious armed that he at the Soul Master’s crime, tified the state trial court had For when Kenneth Lounge labor attacked Holsey to be “confined at sentenced attack, Scotty be After the twenty years,” years with fifteen Simmons. Sim- Milledgeville called two law roborated Maher’s. 1. The State also officers, whose con- enforcement “go get” mons decided to Holsey and do out kind courting of like around a little harm, him but Holsey some fired a rifle at .... bit him eight seven or times.2 The State rest Clifford jury also told the that Holsey ed. grew dad, up without his who had moved
Holsey’s attorneys, Trammel, being Prince and Detroit after shot and paralyzed, then presented evidence and that he mitigating cir- had heard had a bed- wetting problem cumstances. Trammel until began by he was about twelve playing years jury for the old. the videotaped deposition of Lounge. owner Soul Master’s explained Clifford that Hol- His Holsey, name Clifford although he is sey siblings and his dressed they “[b]est petitioner not related to Wayne Robert by living could projects” and that (We Holsey. will refer to this witness as their house “rough” and infested with confusion.) “Clifford” to avoid The first cockroaches. Clifford, Trammel asked thing that Clifford testified about was the you “Did [Holsey’s see ever put mother] night Holsey stabbed Kenneth Simmons. her arms around her children and tell He said that Kenneth Scotty Simmons *5 them that answered, she loved them?” He gone had to the Soul Lounge Master’s “Never done that.” Clifford testified that night to attack Holsey. He also told the he had heard mother admit that jury that, although he did not see the at, “scold[,] she would curse ... and beat” stabbing, Holsey had acted in self-defense. her children. He jury told the that Hol- sey’s mother threatened her children and questioned
Trammel also Clifford about often left them home alone because she Holsey’s childhood. Clifford testified that night cooked at for the Soul Master’s Holsey up in grew neighbor Clifford’s Lounge. explained Clifford that despite hood, so he had known Holsey since Hol- child, his bad life Holsey while a was not a sey was a small child. Trammel asked person” “bad but instead was “quiet and Clifford “to jury tell the what [he knew] kept a smile his face.” on [Holsey] about and the circumstances of his home life” growing up. Clifford re- Trammel asked Clifford about Angela sponded: Holsey, who was Holsey’s second-oldest
Well, I think sister. [Holsey] Clifford said that up Angela came had spent “special best time in that he ed when could. I think was he she small.” neglected According Clifford, from to She, you “[s]he mother. did have know, problems.” kinda of up like—came kind of like child abuse. just And she didn’t see After jury watched Clifford’s video- them, you know, about kind of walked all taped deposition, Prince and Trammel over bit, them a little every- done called eight more witnesses testify to live: thing. Cook, Delores Hawkins, Belinda Freda [Holsey] and siblings] [his were really Webb, Jones, Paschal, Ferrlando Otis San- not cared for and—I don’t know. But I dra Kendrick, Regina Reeves, and Deme- believe [Holsey] might have left home tra Holsey. The jury first from heard that one time because their mother was Cook, Delores who was a cook the Bald- really tough on them. I think she was County win where Holsey Jail was incar- 2. The State also called Bertha Simmons and neth at the Lounge, Simmons Soul Master's Cathey Bell to corroborate Bell testified that she Holsey also saw Kenneth Scotty Simmons. Bertha Sim- stab Kenneth Simmons and that she saw Hol- mons Holsey testified that she saw sey stab Ken- Scotty fire a rifle at Simmons. Kendrick, Holsey’s supervisors one of She convictions. after his cerated testified in the She worked the restaurant. Holsey had testified also told the trays to She good employee. “out giving “trustee” as a kitchen her, According to Master’s was at Soul jury inmates.” that she other “respectful” Kenneth was “courteous” stabbed Lounge when any trouble. cause had did not and that in 1992 Simmons Simmons hitting Holsey “beside fight by stаrted the Haw- from Belinda then heard the head.” testi- Holsey’s. Hawkins kins, friend of together went that she and
fied sister, Holsey’s oldest called Prince next February Lounge the Soul Master’s Reeves, is a testify.3 Reeves Regina Hawkins, Holsey told According to 1992. County marine, a former Baldwin former hit had Simmons later that Kenneth her sheriff, Deputy States United deputy then with a brick and in the head him the examination began Prince Marshal. him. She insisted attacked three men fight when her about by asking Reeves fight” start no Holsey “didn’t jury that Simmons. Kenneth brother stabbed night. not witness the that she did Reeves said Webb, Jasper for the jailer Freda during it her brother fight but that She Jail, witness. the next County injuries requiring stitches. suffered head in- Holsey as an knew testified she Holsey’s incarcera Prince her asked County where Jail Jasper mate Jail, which County Baldwin tion at the mur- malice trial on the awaiting had been Reeves, According to began murder, robbery and armed der, felony Holsey had earned *6 behavior through good “a real Holsey as She described charges. status,” him more gave which “trustee courteous[,] Webb inmate[ ].” ... model jail nontrustee than freedom within that did not believe that she also testified Holsey officials entrusted inmates. Jail that chair” get the electric “should he jail and tasks with miscellaneous in danger prison. to others be a he would to drive a truck. allowed him testified, three Prince called After Webb Holsey’s about testified Reeves also from coworkers Holsey’s former that jury told the She childhood. was Hut. The first Pizza Milledgeville He has older sis- child. two is a middle Jones, assistant the restaurant’s Ferrlando younger ters, Angela, and two and Reeves Holsey was He testified manager. Reeves, Angela, ones, and Lisa. Demetra along with got he person, not a violent father, but he is Holsey have the same employees, and restaurant’s other Hol- Lisa. of Demetra and not the father Pas- to do. Otis he told he did what was two and paralyzed shot sey’s father was chal, manager, testified the restaurant’s The fam- Holsey was born. months before employee,” very good a “was Holsey was born to Detroit after ily moved told, what he did “dependable,” medical get father “could better so also with others. He along well got Detroit, in they lived While attention.” quiet jury “the told born, and Demetra was sister any violent never saw and that he type” Detroit, Holsey’s mother years in after five former Holsey. The last tendencies Milledge- back to moved and her children testify was to Hut coworker Sandra Pizza proceedings. during postconviction Holsey’s trial Reeves testified 3. When to her as consistency, we will refer Holsey. She was still For her last name trial, taking opinion. throughout her husband’s this married after the "Reeves” name, again in testified thereafter and she ville, Ac- A: leaving Holsey’s grade says, father behind. For first Reeves, “really never cording weak materi- student readiness knew at all.” [his father] grade very slow, says, als. Second says, needs from Third help home. Milledgeville, Holsey
Back poor says, poor worker. Fourth (Lisa they sisters was born after now-four says, worker. Fifth can be con- Milledgeville) back to with moved lived mother, usually in firm public housing. discipline their trolled with and a public Their mother received assistance to very few Very, kind words. low I family, help provide for her but Reeves think it says. that “things testified were horrible” in I’m Q: part interested —can be their their household. She recounted how discipline controlled and a few mother would often beat the oldest three kind words. Reeves, Angela, Holsey. children: A: Yes. she it Because “hated there” and “was Q: help And from needs home. taking beatings,” tired of Reeves left home A: Yes. years when she was seventeen old Now, Q: [Holsey] any get help did
joined Corps. the Marine She later be- from home from his Mama? Deputy Deputy Sheriff and then a came States United Marshal. A: No. Q: Did get few kind words from told the
Reeves his Mama? mother’s in his involvement life. She testi- fied that their mother had once been hos- times, A: Back in those no. pitalized psychiatric problems that, Reeves also testified spending after pointed out that she had not even bothered care, some time in teenager foster as a up sentencing phase show for the of her Holsey had Georgia lived for time at the Reeves, According son’s trial. Department of Human Resources’ Youth mother not been there for of his most Development Center. Prince introduced although life. And their mother had men *7 Holsey’s into evidence from records thаt out of the home while they were center, which showed that mother vol- up, growing spent none of those men had untarily him admitted to the center in any Holsey. Instead, time with Reeves January 1980, years he when was fourteen raising Holsey testified that and her other old. [her],” siblings up “left to and without Those also around, pyscho- a records include a mother or Holsey father “more grew Holsey or social evaluation of up pre- less” on the street. that pared a specialist psy- behavioral and a Prince asked Reeves about chologist July on According to performance. school She that testified he evaluation, Holsey when was fourteen do “didn’t well” told that he old, years expelled he was from school “might have to grade,” made it the tenth (which he a “pulled because butcher knife complete but grade. didn’t Teachers home)” he had brought from held it to usually just assigned had Holsey to the another student’s throat and “hit him in grade actually next instead him passing face juvenile but did not cut him.” A grade. During into that Reeves’ testimo- complaint report, which ny, Prince also was introduced rec- school records, evidence, Youth Development ords into Center and he asked to stated Reeves read a from section entitled re- school not “teacher’s had ordered to marks.” Reeves then testified: return unless his mother him. accompanied guilt” showing any not distress or evidence showed Other Holse/s to accompany him back knife to schoolmate’s throat putting did not mother request, Reeves read adjustment At Prince’s is so mar- school. and that social “[h]is complaint report contained juvenile from if soon he will ginal something not done in the records: The problems.” continue to cause evalua- [Holsey] part ... an says IQ
The first tion taken reflected had no basically runaway case. He has 28, 1980, July test and scored a 70. on to re- at home and refuses supervision concluded that “is evaluation Says Holsey would turn home. Mrs. seriously disturbed.” A sum- probably school, and a note with go to the sent mary of a home evaluation conducted re- [Holsey] was not allowed to [him]. Center, Development the Youth also con- he come back the turn. When tried to in the records submitted into evi- tained to remove principal police called the dence, “has stated that mother no [him]. resorting how control without [him] idea a section also asked Reeves read Prince punishment.” to excessive jury, evaluation to the psycho-social Development The Youth Center records men- Holsey as borderline which described sentencing admitted into evidence at the tally retarded: phase psychiatric also contained a evalua- ef- “[Holsey] inappropriate evidenced an Trest, Holsey prepared by tion of Dr. Fred He during the evaluation. smiled fect psychiatrists. center’s Dr. one of the difficulty main- and had inappropriately Trest had concluded that suffered At times he taining thought patterns. disorder, “behavioral/personality which en- of his immediate appeared unaware ... antisocial component” [an] includes vironment, his own.” and in world of intelligence that “his seems to be bor- test- says, “present paragraph Another Holsey had told Dr. Trest that derline.” [Holsey] in the ing functions indicates siblings neither he nor his had been treat- range mental retardation borderline “neglectfully” or “received physical ed .... as an intelligence appears [H]e mother,” from his but “he or verbal abuse thrives tak- individual who anti-social that he has felt readily admitted] seeking. thrill He exhibits ing risks or relatively rejected by his mother for his ahead and make inability plan siblings.” also told Dr. Trest younger He con- disregard for the short reckless “ ” him,’ “infre- ‘yell[ed] that his mother His socializa- sequences of his actions. ” head,’ ‘slap[ped] on the quently him shallow, tion relationships are *8 “intermittently a belt” spanked him with loy- strong expected can be not to show punishment as when he misbehaved. And intelligence his alties to others because pres- his Holsey that mother’s “reveal[ed] is low his dislike for social convention so ... boyfriend ent is a friend him [who] being caught in likely is to result his riding, and fishing takes him and boat often.” with him.” plays football jury that the also recounted to Reeves testing that reported stated academic evaluation that evaluation Dr. Trest’s Holsey, was fifteen had that who attempting showed Holsey suspected was twiсe of testing, at the time functioned years old Development at the Youth suicide while third-grade at a level. it. The Holsey that denied Center but that, time, evaluation, evaluation concluded which part of Another many as antisocial just barely “has evidence, states that was introduced into in be the child- [Holsey] present behaviors must testing indicates “[personality hood histories of adults are diagnosed who old the Juvenile Court of County Baldwin as having antisocial personality disorders.” ordered her admitted to Central State Dr. Trest also wrote that Holsey admitted Hospital for a “neurological work-up, elec- “to having had the urge antisocial to steal tro-encephalogram, and complete review past.” and evaluation of her personality.” Dur- ing that stay, court-ordered hospital Youth
The Development offi- Center records cials found her also to be in contained a “the “social history” Borderline of Holsey range written intellectual Marks, functioning” Rosa and con- a center social cluded that “the worker. Marks wrote consideration of Mild history some- Mental time after Retardation cannot was entirely be admitted to the center, ruled out.” The she officials noted that found he that “was Ange- doing fair la’s personality in school year until a great ago.” “reflected She sum- deal of hostility, insecurity, marized and depression situation: “[His] is in indicated strength that physical Angela was easily angered, environment and his average could not intelligence]. control her anger, His and did limitations lie[] in it, understand inability to express partially due to himself her intellec- adequately. tual His level.” mother given has And up a Central all Hospital State hopes and has little evaluation when [Holsey].” Angela interest years was sixteen old “considered [her] to be functioning in a In addition to eliciting testimony from mild mental retardation range.” All of Reeves about Holsey’s troubled, abusive that evidence put was before the jury. childhood, Prince asked her about Holsey’s sister, other older Angela. Finally, Reeves testi- Reeves told about her fied Angela was a person, violent brother’s had character. She stated problems school, has “always sometimes bad to been quiet” mostly and she her children, and had been hospitalized “used to tease him ... about things be- several times at Central State Hospital for cause he always small and skinny.” problems. mental But, first time testified, she always “he’s ... been Angela was admitted to Central State type Hos- you’re if his friend or if pital was when “she was kicked out you’re family ... he sticks up you. public school in the fourth grade” because He stands ... by you ... no matter “[t]eachers were horrified of her.” Ac- what.” According to Reeves, Holsey cording Reeves, Angela attended special just would do about anything to protect his education classes while she was at Central sisters and his mother. She believed that State Hospital. he did not have the ability to take advan- tage of the Reeves same opportunities said that as a child that she did rarely because gotten he does any into not have “what you trouble on his own would but call good instead “it social skills. usually ... [He’s] never really with or been, you because of know, ... Angela.” good She told the jury school.” to get reward money Angela had As Holsey’s ninth and last witness dur- turned police for his 1983 ing the sentencing phase, Trammel called *9 armed robbery. Reeves, To least, Demetra Holsey, one of Holsey’s younger Angela’s betrayal was not still, surprising; sisters. Pleading with jury to spare Holsey never confronted Angela about it. her life, brother’s she testified:
Prince introduced into [Wjhenever evidence Angela’s I need[ed] him he was there medical records from Central State Hospi- .... No matter what problem was, tal. Those show, records among other if he could help us he would. When things, that when Angela was years eleven got times me, hard with when people put him in for The fact that his sister turned somebody I could always I had down me reward, a robbery get let to does my up lift head and an armed that would go to somebody. killing No matter a justify I am that his robberies me know said, that you couldn’t take you police officer? what know, always I me. was away You from Yes, has got he’s another sister that He my al- because size. picked at that problems. Does got some mental beautiful, me I no matter ways told No doctors have justify what he’s done? in- me People look at from what. Wayne Holsey has told us that Robert side, keep my the outside. Just not any problems. mental day will bless me. up and one God head Holsey, grew up in that Regina she just say please, beg like to I I’d mother, fa- family. same same Same I a his life .... never had you, spare ther, Regina same household. When I father died when was My father. real old, years she wanted make turned my baby. only figure He was father a something joined her life. She everybody good .... There’s some Corps---- Marine United States figure I no other male .... don’t have turned he a [Holsey] When robbed own, my I have a child of my life. you Store. And Corral Convenience ..., got I gone his father’s brick, he heard him take that I life ---- But single mother’s live it smashed in the face Scottie Maher. If a little something. it ain’t but need parents, age Regina, Same as same something. bit, just please leave me environment, same same conditions. closing presented their parties The then by tell- prosecutor began The arguments. Wayne Holsey ... is the ox Robert proven that the State had four
ing jury gores again. gores (1) statutory circumstances: aggravating arguments presented closing Trammel against peace “Holsey committed murder Holsey. began by ac- on behalf of She peace officer] ... while [that officer knowledging that the State proven performance of his official in the engaged statutory aggravating circumstances. four duties,” § Ga. Code Ann. 17-10- see mitigating defined a circum- She then (2) 30(b)(8); and killed “Holsey shot Will you jury “anything stance for avoiding, in- purpose for the Robinson may or consider want to consider with, lawful ar- terfering preventing just you that the ultimate might indicate himself,” 10—30(b)(l0); § id. rest of see 17— this case is what should punishment while, (3) “Holsey murdered Will Robinson given.” be engaged in the commission of an- Hol- jury Trammel for the highlighted robbery,” capital felony, armed other life,” troubled, noting “home sey’s abusive (4) 10—30(b)(2); “Holsey § id. see 17— “grew up by Arguing himself.” that he he had Will Robinson while ... murdered Tram- equally,” don’t all start “[w]e capital of conviction for a prior record nothing “had mel told robbery,” felony, [the 1983] .... armed 17-10-30(b)(l). to have. He was every § child deserves see id. He “had a moth- deprived everything.” prosecutor then discussed so go even to the school er who wouldn’t He mitigating circumstances. evidence of get back in.” he would said: *10 in- Holsey’s limited highlighted also She yes, the defen- gentlemen, Ladies is Holsey telligence, telling jury the a perfect not have childhood. dant did mentally “borderline retarded.” She reit- corpus Georgia habeas court rais- state ing thirteen for by reminding grounds relief. One of point jury erated the relief, grounds only those for which the just grades] “was for assigned he [to remaining ground at in this appeal, issue by the he eigh- school” time was lawyers was that his trial rendered ineffec- years teen sign old still could not sentencing phase by tive assistance at the Finally, name. she asked the to con- failing present enough to cir- mitigating any lingering might sider it doubt have cumstance evidence of his limited intelli- Holsey’s guilt weigh to favor of troubled, gence and of his abusive child- not imposing penalty. the death hood. jurors The court instructed that it The state collateral court held an evi- “duty was their to within determine 16-18, dentiary hearing 2003, June prescribed punishment limits law what 8-9, eight December called be imposed [would] this offense” and testify: Cunning- witnesses Dr. Mark jurors they told were “authorized ham, Toomer, Dr. Jethro Brenda Tram- all of consider the evidence received mel, Singer, McConnel, Judge Ronald L.A. stages here in court in both pro- this Jr., Cathy Crawford, Reeves, Regina ceeding by the State and the Andrew Prince. He also submitted deliberating defendant.” After for less exhibits, including deposition testimo- hours, than two the jury returned a verdict ny of people, nineteen affidavits finding that proven State had four fifty-two people, and his Department statutory aggravating circumstances and Corrections records. The State called fixing Holsey’s sentence death for the nine testify: witnesses Dr. Thomas malice murder conviction. The state trial Sachy, Evelyn Luton, Sperry, Dr. Kris imposed court that sentence that con- for Robinson, Masse, Mark Sheriff William viction and also sentenced to life Jr., Horn, Bright, Ricky Fred Bag- Jimmie imprisonment robbery for armed con- gett, and Howard Sills. The State submit- viction. ted 220 exhibits. On direct appeal Georgia Supreme The state collateral court vacated Hol- Court Holsey’s affirmed convictions and sey’s sentence, death concluding that his I, death sentence. 524 S.E.2d lawyers trial had rendered as- ineffective found, at 480. The court “considering both sentencing sistance phase of Hol- defendant, the crime and the that the sen sey’s in regard presentation trial to the tence of death was neither excessive nor mitigating circumstances evidence about
disproportionate to penalties imposed his intelligence troubled, limited and his in similar cases.” Id. The United States II, abusive childhood. No.2000-V- Supreme Court Holsey’s petition denied 604, at 82-83. The Georgia Supreme certiorari, for a writ v. Holsey Georgia, Court assumed that trial lawyers 530 U.S. 120 S.Ct. 147 L.Ed.2d had rendered performance, deficient it but (2000), petition rehearing, and-his reversed the state collateral court. The Holsey Georgia, Georgia Supreme U.S. S.Ct. Court held that if even 17, 147 (2000). lawyers deficient, trial L.Ed.2d 1041 were Hol-
sey had not prejudiced shown that he was II. STATE POSTCONVICTION III, deficiency. Holsey 642 S.E.2d
PROCEEDINGS at 60-62. Supreme After the Court denied certio- State contends that trial rari, Holsey petition filed a lawyers for a writ of present enough did eir- mitigating *11 that the misconception a broad sentencing There’s at eumstances mentally somebody who’s public has Georgia Supreme Because phase. stuporous and slobbering retarded is not Court’s conclusion correctly can’t fasten their clothes and lawyer’s assumed by his trial prejudiced job, hold could never is unable to and an unreasonable was neither deficiencies to or write at all. other learn read clearly federal established application words, it popular notion of what determi- on an unreasonable nor based law mentally to in fact is means be retarded facts, will assume we nation descriptive somebody who is more deficient, as were lawyers trial .... severely moderately to retarded Court did. Georgia Supreme misconceptions And so there are broad about what it means to community Mitigating Evidence Presented A. mentally be retarded what some- Evidentiary Hearing State Collateral mentally can body mildly who’s retarded evidentiary hearing During the do or do. to called two witnesses collateral counsel Cunningham’s diagnosis Dr. intelligence limited testify about his —Dr. mildly was based on mentally as retarded Dr. Jethro Toom- Cunningham and Mark of mental retardation in the the definition sister, Regina They his oldest er. called Diagnostic Fourth Edition of the and Sta- troubled, Reeves, testify about his abu- Disorders. tistical Manual Mental See evidence of As additional sive childhood. Diagnostic and Statistical Manual of troubled, abu- intelligence his limited (4th 2000) [hereinaf- Mental Disorders ed. childhood, they deposi- submitted sive him, According ter DSM- DSM-IV]. eight people tion system diagnostic IV “is classification twenty-nine more. affidavits of by psychologists psychi- utilized that’s also some doc- collateral counsel submitted [they] talking all atrists so that are evidence, including Depart- his umentary Cunningham disorder.” Dr. also same records. ment Corrections explained accepted is within DSM-IV community, its defini- professional Holsey’s Witnesses 1. tion of mental retardation is consistent Cunningham a. Dr. provided with the definition the Ameri- testify The witness first Retardation, can Association of Mental evidentiary hearing was Dr. Mark began which is “an association psy and forensic Cunningham, clinical represents primary professional recognized the court chologist whom mental retar- organization” concerned with He hired to in those fields. expert dation. Holsey’s intellectual status and
evaluate Cunningham diagno testified that a Dr. mentally he is retarde determine whether has three sis of retardation “[m]ental d.4 person that the prongs to it.”5 The first is Cunningham gave opinion are Dr. have intellectual abilities that must defined mentally “significantly subaverage, He which is Holsey mildly retarded. 70 or IQ approximately as ... an score of that: explained general functioning Cunningham’s subaverage intellectual Dr. 4. also submitted significant topics. accompanied by report those limita- written that is functioning adaptive least two of tions in .... onset must occur skill areas [ten] "The stated in the DSM-IV: essential As DSM-IV, age years at 41. significantly ....” before Mental Retardation is feature of *12 However, the DSM-TV and the talking expe- below.” who has had [someone] recognize IQ AAMR that “an score of 75 rience observing person this in various because, qualify in daily and below also roles and intimate [c]ould life activities fact, may IQ represent period well true over an of extended time. And that’s less than 70 with error compo- you query person very then this in a [an] way, nent taken into sort following ques- consideration.” detailed tions are laid out in the scale about prong The second of a mental retarda person what can or this do is not able to diagnosis significant impairment tion is a do. behavior, in adaptive signifi which means Cunningham Dr. explained also that an impairment cant in at least two of ten “get evaluator can information on anec- adaptive categories behavior listed by interviewing dotal basis getting de- DSM-IV. Those ten categories are com positions from variety a broad third munication, self-care, living, home social parties, that provides additional infor- skills, interpersonal community use of re somebody’s mation adaptive behav- sources, skills, functional academic self-di capabilities.” ior rection, work, leisure, and health and safe ty. According Cunningham, to Dr. there prong third a mental retardation are two standardized tests an evaluator diagnosis that there is must be “the onset can administer to determine whether of mental age retardation before the a significant impairment someone has in eighteen.” Cunningham Dr. explained adaptive behavior: the Vineland Social that there are degrees of mental retarda (or Behavior) Maturity Adaptive Scales or highest tion. “The functioning level Adaptive the AAMR’s Behavior Scales.6 mental retardation is called mild mental Cunningham Dr. described those tests: retardation[, which ais] misnomer because adaptive Typically, behavior nothing scales there’s mild about this condition. respondent use who has disability.”7 had close It’s a catastrophic According ..., observation of you’re the individual to Dr. Cunningham, mild mental retarda- Georgia similarly mentally defines mental retarda- retarded.” He also said that the "having significantly subaverage tion as gen- "provide AARM Scales information about resulting functioning eral intellectual in or patient] compares [the how to other individu- impairments adaptive associated with be- disabled, developmentally als who are to oth- during havior which develop- manifested people mentally er that are retarded.” period.” § mental Ga.Code Ann. 17-7- 131(a)(3); DSM-TV, accord at 41. In Stri- Cunningham, 7. Unlike Dr. the DSM-IV does State, pling v. 261 Ga. 401 S.E.2d not describe mild mental "a retardation as (1991), Georgia Supreme explained Court catastrophic disability.” According to the the "significantly subaverage intellectual part of the DSM-TV that functioning” factor of the mental retardation counsel submitted into evidence at the eviden- IQ generally definition "is defined as an of 70 tiary hearing: tq court, however, According or below.” IQ"an test score 70of or below is not conclu- roughly equiva- Mild Mental is Retardation IQ sive” only because "an score accurate lent to what used be referred to as the range within a points, of several and for a category educational of “educable.” This reasons, variety particular may score be group largest segment constitutes Id.; Hill, less accurate.” accord F.3d 85%) (about of those with the disorder. As 6; 30-31, n. pp. see also infra group, people with this level of Mental typically develop Retardation social and Cunningham explained 6. Dr. that the Vine- during preschool “provide[] communication skills land Scales information about years), patient] compares years (ages how community [the 0-5 minimal have im- opposed areas, members pairment to individuals that are sensorimotor often ca- intellectual actual of his demonstration *13 to50 from IQan score represents tion (IQ pability.” it is moderate Below or 75. 40), and to (IQ of 20 55), Hol- severe to of 40 also testified Cunningham Dr. below) retar- mental or20 (IQ of of eight profound impaired” “significantly sey was categories: com- dation. behavior adaptive the ten interper- living, social munication, home Dr. Holsey, of evaluation perform To resources, community skills, use of large set sonal very “a reviewed Cunningham self-direction, skills, academic IQof functional results records,” included which also He safety. and leisure, health and past; in the taken Holsey tests adaptive behav- Holsey’s global affidavits;8 noted sworn testimony; deposition old year eight “in the is functioning ior school, Department records; and arrest on Holsey’s score on based And rec range.” institutional Corrections, other and evi- anecdotal other test and IQ administered also Cunningham Dr. ords. that there Cunningham testified dence, sister, Dr. Reeves, Holsey’s Regina to before retardation mental an onset was Scale Behavior Adaptive Vineland rea- For those eighteen. used turned Holsey He Scale. Behavior Adaptive AAMR Hol- Cunningham testified sons, is Dr. that she believed he because Reeves retarded, “which mentally mildly sey member functional is reliable most “the disorder, but rather mild not reflect does family.” [Holsey’s] of severe a continuum mild end Holsey testified Cunningham Dr. disability.” re- mental prong first satisfied IQ three reviewed He test. tardation Dr. Toomer b. taken, one in Holsey had tests witness next old; one years fifteen was he when Toomer, Dr. Jethro counsel old; years thirty-six he when the court whom psychologist a forensic thirty-seven he when one He field.9 in that expert as an recognized 70, 69, Holsey scored old. years Hol 2001 when that, in December testified Cunning- Dr. According to tests. those on old, performed years thirty-six sey was tests took those Holsey ham, because Holsey de evaluation psychosocial period, twenty-three-year across a ret mentally is whether termine three within IQ score clustering of evaluation, Dr. of that part As arded.10 extraordinarily reliable “an showed points following hearing, from the evidentiary with- children distinguishable from are Foster, Anderson, San- Donald people: Essie age. a later until Retardation out Mental Hawkins, Havior, Francis, Mary Belinda dra teens, acquire aca- they can By late their Henry Holsey, Hol- Holsey, Demetra Angela sixth- up approximately skills demic Howard, Ingram, Ferrl- Jr., Rosa they sey, Annie years, During their adult level. grade McGriff, Lee, Lou- Jones, Billy Thomas skills ando vocational usually social achieve Rooks, Powell, Melchor, Sonya Lelia venia self-support, but adequate minimum Warner, Tucker, Simcox, Hugh Robert assis- Sara guidance, and supervision, may need Eber, Holsey's Webb, Dr. Herbert Freda social tance, unusual under especially when sup- mother. appropriate With stress. or economic Retar- Mental Mild ports, individuals written Toomer's Dr. submitted also 9. successfully in the usually live can dation report. in su- independently community, either settings. pervised According Toomer: to Dr. DSM-TV, 43. kind ... a evaluation [p]sychosocial [A] in- taking. a semistructured It’s history affidavits, which Cunningham reviewed 8.Dr. a ser- asked individual is where the terview during into Holsey also submitted Reeves, IQ administered the 2001 test on their mother from psy- Toomer suffered chological problems, which scored a 69 and adminis- including “depression stuff,” “to assess overall achieve- tered WRAT family and some other and the lived functioning particu- it relates to a ment in a “horrible” economic situation as their lar that Dr. grade level.” On the WRAT struggled money mother to earn enough him, gave equal Toomer scored to provide family. for the Before she went *14 fifth-grade reading spell- level and welfare, on their mother money earned ing, equal fourth-grade and to level in cafeterias, working long hours babysit- math. ting, cleaning people’s other homes. much, Because their mother worked so
Dr. testified that he Toomer reviewed played Reeves “more or less the role as things,” including Holsey’s “several school by variety records and “affidavits a the mother.” filed of family people members and who knew him family Reeves testified that the not did during developmental years.” his He also always enough have food to eat. Their interviewed Reeves and administered to gave eating mother priority to Behavior, Independent her the Scales younger two sisters. Reeves testified information, Revised. on all of that Based Holsey a up about time when “got Holsey Dr. Toomer testified that shows something nerve to for ask else to eat and adaptive of’ variety “deficits a behavior eat, know, him you [his mother] made ev- that categories and there is some evidence erything pot, that was left in the that he suffered onset of mental retar- bones, rice, chicken, [chicken] ev- turning eighteen. dation before In Dr. erything.” opinion Holsey mentally Toomer’s re- Reeves said that their mother was hard tarded. children, on her especially the oldest three: Reeves, Angela, Regina Holsey.
c. For Reeves exam- ple, she was often in a bad mood and Holsey’s collateral counsel his called old- regularly spoke negatively about their fa- sister, Reeves, Regina testify est to Reeves, Angela, Holsey ther. When his part childhood. The first of her testi- mood, they realized that she was in a bad mony Holsey’s upbringing was about try would to hide but often with little Detroit. She testified that often result, success. As a they suffered a lot saw their fight, mother and father “[s]ome physical verbal and abuse. physical; a lot verbal.” One time their hit father their mother with the handle of “always Reeves described mop, broom or a and another time their nervous, quiet, and small” and said that he mother set a milk carton and a newspaper “really stuttered until bad” he was “[w]ell on fire and threw them top of their into his trying twenties.” Instead of to father, who was confined to wheelchair. up build Holsey’s or getting self-confidence help Reeves him stuttering, also testified about life their mother after their mother moved him and his sib- would berate and make fun of him. She lings back to Milledgeville. According just him told that “he was like his no-good- questions regarding developmen- person
ies responds how the questions history present tal up asked, from birth to the processes [and] how the individual part get- time. And as of that information part information. All that is of the observa- ting, regarding the individual is observed piece conjunction tional that occurs in presentation, presenta- his overall clinical taking psychosocial history. tion, cognitive presentation, intellectual and Angela to be was unconscious and Reeves going was daddy” and “he ass him that sissy.” “thought And she told she was dead.” punk talk ass” and he he had a “can’t Reeves stated had never would “talk worth a shit.” She couldn’t and that he lived on his own could do her humiliate[]” “curse[] [and] also out chores, “taking like care of household although Holsey son. Reeves said things up.” thought also cleaning She years thirteen bed until wet the Angela had influenced be- old, him to never took his mother Reeves, According Angela havior. help prob- with that or tried to him doctor times, prison been in a number has lem. institu- psychological problems, testified that wouldn’t take “[i]t Reeves juvenile. Angela began get- as a tionalized their mother into anything” much to set “really ting in when she trouble *15 examples rage, and provided she violent small,” Holsey get and and would often she Holsey Angela abuse and physical together. into trouble But Reeves be- Reeves, According their to suffered. always that the leader Angela lieved her children “[s]ome- mother would beat into Holsey got and sometimes trouble be- every day,” and that daily, other times things Angela cause of that had done. them outside the sometimes she beat rarely Holsey Angela told on and would porch[,] home, yard, [Hol- the on the “[i]n sometimes cover for her. Reeves stated right corner ... sey] on the got beaten Holsey got prison that after out of for his said that near our house.” Reeves there robbery proba- conviction and then his ex- Holsey with their mother would beat violation, in Angela, tion he moved with shoes, broom, cords, and and tension thought good which Reeves was not idea head under the bathtub hold his would life, her [Angela] how lived “[b]ecause struggled and cried. She said as he faucet there,” people the that she had and “the beatings permanent left scars those have him.” influence she would over body. on his specific beating, Testifying about a Depositions 2. The and Affidavits recounted: Reeves Einhorn a. Dr. Mare night particular^ Holsey in when [0]ne counsel submitted Holsey’s collateral thirteen,] my mother wait was twelve or deposition into the going because she knew [he ed Einhorn, a clini- the of Dr. report written And the mat night. wet the bed] actually cal who had been psychologist cheap, everything, were so tresses in hired the connection with the could, State peed you he when bed whether proceeding to evaluate when right through. And water went Einhorn up Holsey mentally him retarded. Dr. heard it she woke out his she that, conducting with cord Just his evaluation sleep an extension .... testified First, him cord and things. beat extension he two Holsey, did he and, know, you him wash go up made person Holsey interviewed and adminis- up mess. clean April psychological testing tered Second, he reviewed the records Holsey wit- Reeves also testified him, provided State Angela his his mother abuse sister nessed report are the which his written states way on two occa- particularly in a brutal Cunningham records that Dr. same occasion, intentionally she sions. On one their conducting Dr. heater, Toomer reviewed using and on Angela a wall burned other, point to the evaluations. Angela she beat interview, Holsey advantages Dr. He During the told never had the begun reading in Einhorn that he had what of us most would have .... He books, prison including and that he read culturally deprived. psy- He was Bible, although every he did read deprived. chologically He didn’t have report, day. Dr. Einhorn summa- anything. He victim was a of his cir- the interview: ad- “[C]ommunieation rized proper He cumstances. didn’t have coherent, processes equate. Thought were parenting. He didn’t have food. proper logical, goal directed. He did not ask He have a proper didn’t education. He any questions during the examination didn’t all. figure have father He
really anything.
didn’t have
Dr. an Einhorn administered test, IQ test and a WRAT. On IQ essentially borderline low av- [H]e’s WRAT, a 71. scored On erage functioning]. [in intellectual If first percentile (fourth-grade scored you equation throw into alcohol level) in reading and in the fourth percen- age], abuse [beginning early level) (fifth-grade in spelling tile and math. in, grew terrible up prac- conditions he psychological Based on that Dr. testing, tically anyone poor adjust- would make a Einhorn testified met the first *16 .... ment to life of the prong DSM-IV definition of mental report, In his written Dr. Einhorn noted retardation. other evidence that was inconsistent a Dr. Einhorn also testified that mental diagnosis: retardation significant adaptive shows deficits in some Holsey’s Mr. denied any delays mother behaviors, which is the prong second of developmental milestones and these diagnosis DSM-IV for mental retardation. expected would be in true mental retar- however, explained, He that those deficits history dation .... is [T]here no of low test scores were due not special Instead, placement. Despite to education report mental retardation. he childhood, managed ed his difficult deprivation, “cultural alcohol he to abuse, average surpassed [and] low to borderline in learn basic skills that the ex- likely “Holsey’s tellect” caused aver pectancy below of mentally retarded individu- age poor adjust test scores and overall example, als. For on the Wide to Testifying ment life.”11 at deposition, Range Test[,] Achievement he obtained explained opinion: he his high a school level score arithmetic abused, drinks,
He’s neglected, he’s .... ability he This included the to calcu- school, poorly he does gets he into percentiles. performance late This is trouble, hanging he starts out with the well within normal limits .... Addi- wrong people, pretty and it’s all predict- tional contraindications subnormal in- get able. He doesn’t into lockstep with telligence are seen in transcripts the mainstream. telephone sister, calls to report his of his poker,
playing [sophisticated and his re- causation, subject Cunning- proper 11. On the baby, Dr. you nurturance as a because deprivation ham testified that cultural not neglected impover- were or abused or were inconsistent with mental ex- retardation. He paint dropped ished or lead or ate were on plained: head, your compromised whatever it is that independent Mental retardation is of cause. permanent way, this hardware in a all of your And so whether or not hardware was that is called mental retardation. permanently you get stunted because didn't ords, records, prison prior in- mental disciplinary [or] while sponses actions] to (In deposition, health evaluations.” his carcerated. Dr. Shapiro testified he had need- that, as a highlighted also Dr. Einhorn ed those records because some ex- “[t]o Holsey was an “excel employee, Pizza Hut tent, if [they’re] irrelevant [because] poor a although he was dishwasher lent” mentally someone’s retarded time he could not read maker because pizza them, they you likely evaluate it’s prison while in “he ingredients, and that also.”) mentally were retarded as a child allowed level of trustee earned the Einhorn out pointed a truck.” Dr. to drive Shapiro Dr. met with several that, telephone conversations with County Jasper hours at Jail Decem- Reeves, vocabulary “used 12, 1996, a less than two ber little months mentally retarded vocabu well above interview, During before trial. testified, “Mentally retard lary.” He also (1) had Holsey told him he been play or at least don’t people poker don’t ed grown up raised mother had enough poker.”12 play understand to (2) father had figure; “stayed without а he (3) growing up; in trouble” he often ran Shapiro b. Dr. away from home because he was bored Holsey’s collateral counsel submitted (4) house; get and wanted out he Shapiro. deposition testimony Dr. “get whoopin” got would whenever he whom trial psychologist He is (5) school; caught; regularly skipped he lawyers hired about two three (6) old, years and when he was fourteen perform gen- the trial months before one day took a knife school because of assessment, a general psychological eral “race and found a white student and riots” assessment, assessment him. told Dr. threatened also Sha- *17 academic, intellectual, func- emotional he be- piro that had been foster care tioning, had not called as a witness. but him,” cause his mother “couldn’t contain given had Dr. Sha- Holsey’s attorneys trial “got that were called after he into a police he only one document before made piro child, fight” with foster and there- another two-page summary those assessments'—a Develop- after he sent to Youth family history they that Holsey’s had ment Center. evaluation, conducting prepared. interview, Dr. Shapiro After the admin Shapiro data Dr. did not review “historical of the istered some the subtests Stan concerning Holsey from school rec- ords, to calculate Intelligence rec- ford-Binet Scale Development [Youth Center] bring analysis Cunningham critical to bear as Dr. criticized Dr. Einhorn’s didn’t more contradictory purportedly obviously evi- gross- reliance on he would look at what is so example, that dence. For he testified Dr. ly outlying Cunningham Dr. also score.” Holsey’s have relied Einhorn should not on that, thought although Holsey did use words Holsey that did not have mother’s statements telephone conversations with his sister that First, developmental delays in milestones. surprising,” "a little Einhorn had were Dr. Cunningham, according to Dr. the DSM-IV placed emphasis that Fi- too much on fact. mentally recognizes mildly that retarded chil- Cunningham disagreed Dr. nally, Dr. with developmental any delays, may dren not have doing job view Einhorn’s that an excellent second, Holsey’s poor is mother source being play washing poker dishes and able to mildly "is mental- of information because she retardation, were inconsistent with mental ly intelligent or borderline herself.” retarded "suggests that view that Dr. Einhorn said on He also criticized reliance the 1996 WRAT perception have a of what doesn’t clear some- test, "was out- saying that test administered mentally capable mildly one who’s retarded is of the examiner” and side the observation they of and how function.” "surprised that Dr. Einhorn that he was IQ. Shapiro Shapiro
Holsey’s explained Dr. Dr. further testified Hol- sey’s state only provided collateral counsel had he had administered some of the 3-inch, him two three-ring binders Stanford-Binet subtests because others documents, full of which included given Holsey’s inappropriate age, were Youth Development school and Center rec- all he had administered of the subtests ords, scores from tests that others had Holsey. for age-appropriate were Us administered, and affidavits from relatives subtests, ing the results of those Dr. Sha Holsey. and others who knew After re- IQ piro determined that was 79.13 documents, viewing Shapiro those Dr. tes- administered also Range He had the Wide tified that he still Holsey believed that is Test, which Achievement is scored on the mentally retarded but instead is in test, IQ same as an scale range.” Shapiro “the borderline Dr. ac- math scored 93 on the section. Dr. knowledged that borderline intellectual Shapiro deposition testified at that “it functioning person in approxi- means a not be for possible likely would a men mately percentile the bottom fifth of intel- tally person retarded to be able to achieve functioning. lectual state, though, that score.” He did that he the DSM-IV states that Noting “[pjossibly” had not watched take “the person- essential feature antisocial the WRAT math section but instead had ality pervasive disorder is a pattern of left jail the test with to be disregard rights and violation of the testing mailed back to him.14 Other done begins others that or early childhood Shapiro Dr. showed that adulthood,” adolescence and continues into fourth-grade at a reading level. Shapiro Holsey State asked Dr. if suf- evaluation, Shapiro Based Dr. fers personality from antisocial disorder. opinion intellectual Dr. Shapiro responded that he did not functioning inwas the borderline mentally enough have information to answer that range. retarded Dr. Shapiro testified that question. however, testify, He did probably had told Prince about his im- Holsey “had some conduct problems early pressions very conversation,” “a brief on,” including skipping school and running *18 but he not prepare report did a written for home, away bringing from a knife to school Trammel, likely Prince or because neither putting throat, and it to another student’s attorney requested one. getting fights, and a robbing conven- testimony evidentiary Holsey, In his live practice from but his usual was to hearing, Cunningham, Dr. Holsey’s of one "put charge the materials in the of correc- witnesses, expert Shapiro’s criticized Dr. use they tion officer and that ask make sure the Intelligence of the Stanford-Binet Scale test completes the defendant and materials sends IQ. Holsey’s in 1996 to According calculate to Holsey’s it back.” collateral counsel submit- Cunningham, Shapiro Dr. Dr. should have ted Kelly, the affidavit of Tanekia a former given Holsey thirteen of subtests the test Jasper County officer at the detention Jail. of actually instead he six subtests that She attested that Shapi- she remembered Dr. gave. giving And even if the six subtests was meeting ro with but that she did not appropriate, Cunningham’s in Dr. view Dr. Shapiro delivering any Dr. remember tests or Shapiro wrong had used the standardization paperwork Holsey. to her that concerned No IQ calculating Holsey's table in as 79. If he testified, however, anyone witness that table, Cunningham had used the correct Dr. Holsey, supplied taken test for him with believed, IQ he up would have come with an answers, any changed any or answers that he of 75. gave. Shapiro 14. Dr. testified that he did not recall got how portion the WRAT math back ” “ and monkeys’ ‘ugly ass Holsey’s fucking histo- er opinion, his ience store. “contrib- would be told court that problems bitches.’” She also ry of conduct disorder,” it “[i]f which utory conduct Holsey’s inability his mother mocked a and becomes until adulthood continues a putting read sometimes book “ ... [it be- pattern of behavior persistent you saying things hands like: ‘Can and personality, ingrained of his part comes] book, boy?’”; in this any read words “ to be antisocial.” now nature and any- wrong your head “What’s with “ ”; good nothing way?’ and ‘You’re Teachers c. Former ” just your daddy was.’ like collateral counsel submitted Holsey’s whipping mother admitted her Holsey’s teachers: three of his former affidavits of punishment when children as form Howard, Simcox, Thomas Annie Sara misbehaved, burning denied they but she They attested that “wasn’t Lee. beating them curling them iron with student”; an “obvious displayed very good with an extension or shoes. She also cord slowness”; serious intellectual suffered filthy. denied that the house was read”; “just limitations; “barely could deck”; full playing with wasn’t Holsey’s collateral counsel also submit- any going for him.” have smarts “didn’t following people: ted the affidavits of their im- provided Lee also Howard and aunt; Parks, Sonya Ingram, Holsey’s Rosa family. Howard at- pressions Holsey’s cousins; Holsey’s Henry Holsey, one of “got her she tested in affidavit cousins; Jr., Holsey’s Linda another un- didn’t feeling [Holsey’s mother] cousin; Ingram, Holsey’s mother’s second how serious limitations [his] derstand Holsey, Holsey’s younger Demetra one Holsey’s sister were” and added sisters; Angela Holsey, one of his be constantly having to re- Angela “was They provided older additional sisters. provided Lee moved from the classroom.” Holsey’s limited intelli- information Angela, telling similar information about troubled, gence and his abusive childhood. her “in that he had often seen the court attested her affidavit Ingram Rosa fistfights grown men.” Holsey “definitely couldn’t care for Family Members d. guid- himself’ that he “needed a lot supervision.” Parks ance and attested counsel de- Holsey’s collateral submitted aunt, began living with her Hol- she affidavits from Ber- position mother, and, sey’s the summer of 1980 tha who is mother’s Ingram, time, during Holsey’s mother seemed niece; Ingram from mother. in her son. Holsey’s home “was uninterested told the court that *19 always filthy and with the smell of stunk Holsey, Holsey attested that Henry Jr. food”; Holsey’s rotting urine and words, “always kept and simple used children youngest mother favored her two things really “learned simple topics” and viciously Angela. beat Ac- and and slowly or all.” He also noted that Ingram, their mother “would cording to Angela, sister, a fighter[;] [s]he “was their curling in a iron and whack little plug in a fight would minute and she would got hands it it hot.” She would once fight anyone.” cords, belts, also “them with extension lash Holsey’s, Ingram attested ‘that Linda hose, spoons washer/dryer cooking or very simply “had limited skills and mother handy.”' found And anything else she responsibilities cope with all the couldn’t them, beating while their mother would “ being providing for fami- teeth moth- a mother and Angela call ‘buck ly.” She stated that she had once told a They provided information about psychologist who was evaluating Holsey’s intelligence level. Jackson testified in her mother “she probably mildly re- deposition communicated bet- seeing tarded as how always she has de- ter with her four-year-old son than did pended on Regina [Ingram], and ... her with adults. Hawkins deposi- testified at younger daughter Lisa manage a lot of tion was “responsible” but things basic because simply she couldn’t do “had a mind like a child” and “felt like them herself.” Without explanation, Hol- play child’s was more important to him sey’s collateral counsel attached to In- than, you know, being serious.” And Mel- gram’s affidavit the psychologist’s Septem- chor attested her affidavit that she had ber 2000 evaluation Holsey’s mother, broken up with Holsey because, in her which had concluded that she was mildly view, he could not “handle the adult re- retarded. sponsibilities of being ain serious relation- Holsey’s sister Demetra attested her ship” and did not have “the smarts of a affidavit that (who she and her sister Lisa grown man.” did not share the same with Holsey, father Reeves, and Angela) “were THE f. priority Friends Neighbors to” Holsey’s mother: they “always had Collateral counsel submitted the affida- better toys” clothes and and they “got vits of Foster, Mary Havior, Donald Cath- more food than the others did at meal Harris, erine Anderson, Essie Sandra times, too.” Holsey’s Angela’s sister affi- Francis, Joseph Trawiek, and Bertha Sim- davit described growing inup their house- mons. All themof were friends hold. She said that their mother often neighbors. Foster and provided Havior all of “used her breath to embarrass information intelligence lev- degrade ..., [Holsey] especially in front of Foster, el. a friend who had known Hol- “ people.” other She would call him a ‘sis- sey they since were teenagers, attested sy boy’ and tell him he going to grow his affidavit that Holsey just “was slow in ” up to be one of the ‘gals.’ According to the head” and did not “have the smarts Angela, she also “called ‘monkey’ [him] necessary to make his way on his own.” and ‘crybaby1 yelled an endless stream Havior ” attested that Holsey had attended of obscenities .... Angela stated her church during the year before he mur- their mother “would hit any [them] for Deputy Robinson, dered and she recount- reason or no said, reason.” She “[Holsey] ed how “he could not read along in the and I were smacked with our anything hymn book sing with the rest find, mother could and it was brutal. We congregation.” were hit all time, usually with an elec- Harris, Anderson, trical cord Francis, or watering Trawiek, hose .... If she had the Simmons curling iron close told by, she’d it court about plug physical in and burn us with it.” abuse that Holsey suffered at the hands of his mother. For Harris, example, a long-
e. Former Girlfriends time friend Holsey’s mother, attested in Holsey’s collateral her affidavit that “it counsel didn’t submitted the take anything *20 deposition testimony more than and a whim to affidavits of come over [Holsey’s of Holsey’s three former girlfriends: ... mother] before Mary she’d have a belt or a Jackson, the girlfriend Holsey curling told iron pick in her to go hand and to whack- him up in a blue Jeep after he ing [Holsey].” Anderson, murdered And who lived in Deputy Robinson while in a car; red Holsey’s Be- neighborhood during the 1970s Hawkins; linda and Louvenia Melchor. early 1980s, and Holsey’s attested that h. Others her ... and cruel to was “mean mother shoes, belts, with old and “[a]rmed kids” also Holsey’s collateral counsel submit- ... wail on cords would extension [or] Simmons, of ted the affidavits Kenneth abrasions had welts and [Holsey] until he Holsey man stabbed at the Soul Master’s described in body.” She also his all over 1992; Simmons, Lounge Scotty and Holsey’s home was how affidavit her Each Kenneth brother. of the Simmons’ roaches, garbage old dirty and with “filthy that Holsey attested Simmons brothers urine.” the stench of and childhood, Scotty a rough with Sim- Holsey’s mother “used to noting mons affidavit, Francis, went to who In her him to [Holsey] pulp and beat a tear into more details Holsey, provided school a just little kid.” when was Holsey’s home as “the and referred Her stated affidavit Torture Chamber.” They of also submitted affidavits beatings took Holsey “regularly Tucker, Powell, Lelia and Hugh Susan everyone else view and earshot of plain Martin, Holsey’s whom all of attested She attested neighborhood. in the living” is a su- intelligence level. Tucker former “dragged often Holsey’s [him] mother Development at the Youth Cen- pervisor yard and arm into their corner by the out ter, Holsey his affidavit stated that and him lashing at with an extension went to intellectually”; “was limited “not ca- very yelling cursing all the while cord reflection”; pable of ... abstract “lacked him lungs,” calling “vile” top her maturity, insight sophistication “motherfucker,” “butthole,” like names peers”; language and “used typical of his “dumbo,” ass,” “sissy “stupidhead,” grade a child in school rather like that of seeing Hol- remembered “retardate.” She expected year than what was fifteen caring life “running for his sey ran old.” Powell the Powell Attention welts and covered red that he was Home, for children in a home need wounds.” special family outside of their placement homes, stayed for Holsey several where Coworkers
g. affidavit, weeks in 1980. her she de- slow, counsel submitted simple-minded as “a Holsey scribed former Ferrl- way affidavits two coworkers: boy boys behind other who Jones, investigator had testified sen- age.” ando who his Martin who trial, and Marion tencing phase lawyers during of the worked for trial that, her, trial, not. was the as- Wingate, who had Jones and she attested simple-mind- Milledgeville Holsey fairly Pizza slow and manager sistant “was time, Holsey had ed man.” young Hut where worked affidavit, in his he stated 3. Records Department Corrections every “came to work tried his best way most folks but “was behind shift” collateral counsel also intro Wingate it smarts.” is a Georgia came to official when duced into evidence his Farms, a supervisor at Seaboard A Department former of Corrections records. company summary in processing February diagnostic chicken where early reports complet in the 1990s. He attested those worked records grade tasks the the ninth and scored within affidavit that none of the ed range general intelligence” hard “dull normal company assigned Holsey were Fair Culture test.15 thinking. department’s required much Eber, mony Dr. Herbert deposition and affidavit of submitted the testi- also *21 Holsey According report, Holsey “jumped that “does to that summary notes The specialized to in need of appear be on” “because another inmate he said some [although services ... treatment thing [Holsey’s] gambling game.” MH/MR counseling from routine could benefit he] teeth, Holsey broke the inmate’s front to of development inter relating services nose, gave bloodied his and him “several behavior, his control nal controls over in report knots on his head.” Another behaviors, anger, aggressive and and histo Holsey in records shows that significant It ry of substance abuse.” also “jumped Billy inmate on” another McGriff that Holsey’s *22 had “the psychologists’ Evidence reviewed other re- B. The State’s documents, variety ports” and a includ- two called witnesses The State ing “many depositions and affidavits evidentiary hearing testily about Hol family who people members worked intelligence Thomas sey’s level of —Dr. Holsey]” “school rec- [with Deputy Howard Sachy and Sheriff Chief ords, personally etc.” He also interviewed the affidavits of it submitted Sills —and Holsey. knowledge had some eight others who evaluation, Sachy Dr. con- Based on intelligence. The State Holsey cluded not that does meet “the and an FBI introduced arrest records also Instead, criteria for mental retardation.” showing Holsey that identification record functioning. he has borderline intellectual simple in 1982 for bat had been arrested Dr. Sachy performed neurological evalu- by tery, shoplifting, in theft and in 1988 for Holsey ation on that he not found did weapon.18 carrying concealed any signs neurological
show
deficit.
Witnesses
Holsey
example,
For
did not
“the
have
soft,
signs of craniofacial
physical
abnor-
subject
The State’s first witness on
malities
physical
or other
abnormalities
Dr.
Holsey’s intelligence
Sachy,
was
mental
consistent with
retardation.”
expert
an
in
recognized
whom
court
He
that
psychiatry.
testified
Sachy
forensic
Dr.
also based his conclusion that
retarded,
had hired him
evaluate whether
mentally
part,
State
is not
mentally
He told the
For
example,
retarded.
on
trial.
conducting
night
evaluation he
the evidence showed that on the
that
court
many things
say
[he]
two affidavits
did not
18. The State also submitted
several
things
investigator]
lived
told
[he]
Roberson. Roberson
across
were
[the
from Julius
Holsey during
еxample,
the 1970s and
the street from
not true.” For
he had never said
affidavit,
learner[]”;
early
his first
which is
"empty-
1980s.
was a “slow
28, 2002,
headed”;
attested
dated March
Roberson
or "naive.” He also attested that
"[Holsey's
outright
violent to-
mother]
Holsey's mother “was fair when she disci-
[Holsey]”
gut
kids,”
ward
and that
wrench-
"[i]t
plined
but in the first affidavit the
her
ing
[she]
for me to see and hear how
treated
investigator
paint
"totally
had tried
dif-
[Holsey] ... and know what incredible abuse
picture. And
ferent” and inaccurate
he stated
daily
they
had to endure on
almost
basis.”
specifically
investigator
that he
told the
had
he often saw
mother
He said that
Holsey "whipped
that he had never seen
cords,
hoses,
whip
extension
old
"him with
cords,
branches,
and hoses.”
also
thin branches.” He
attested
noted,
Georgia Supreme
As
court
"[t]he
learner[],” “empty-headed,”
was a "slow
developed
possi-
record is not
on the issue of
"naive.”
investiga-
ble intentional misconduct” of
we,
Holsey's legal team
anyone
tor or
on
but
affidavit,
August
dated
But
his second
Court,
Georgia Supreme
find
alle-
like the
much of what
Roberson contradicted
gations
second affi-
contained
Roberson’s
in his
affidavit. He
he had attested to
first
III,
troubling. Holsey
davit
The district court denied the
claim, Holsey
of counsel
has the burden of
IV,
(CDL),
No: 3:07-cv-129
showing
things
two
under Strickland.
Id.
so,
doing
Georgia
it concluded
First,
at 928.
he must show that his coun
Supreme
unreasonably
Court had
de-
deficient,
performance
sel’s
which
mitigating
additional
cir-
termined
objective
means that it “fell
below
stan
*25
cumstances
dard of reasonableness” and was “outside
in
presented
counsel
the state court’s evi-
range
the wide
professionally competent
of
dentiary
largely
hearing
cumulative of
Strickland,
688,
assistance.”
466 U.S. at
lawyers
trial
pre-
the evidence
690,
2064, 2066;
104
at
S.Ct.
accord John
sentencing phase.
sented at the
at
Id.
son,
928;
Sec’y,
643 F.3d at
Allen v.
Fla.
The court
trial
reasoned
law-
(11th
Corr.,
740,
Dep’t
611 F.3d
751
of
“did,
yers
during
sentencing portion of
Cir.2010);
Corr.,
Sec’y, Dep’t
Smith v.
trial,
present evidence of
limited
[his]
(11th Cir.2009).
1327,
572 F.3d
1349
life,
intelligence, his abusive home
his posi-
Courts must review counsel’s
in
actions
a
sisters,
tive
contributions
and his
“highly deferential” manner and “must in
sister and
mental health prob-
mother’s
dulge a strong presumption that counsel’s
Also,
lems.”
relying
Id.
on the largely
Strickland,
conduct” was reasonable.
466
cumulative
of the
nature
additional miti-
689,
U.S. at
104
at
S.Ct.
2065. To over
evidence,
gating circumstances
much of
strong
come that
presumption
reason
which it
been
by
found had
contradicted
“
ableness, Holsey must show that
‘no com
evidence,
the State’s
the district court con-
petent counsel would have taken the action
Georgia
cluded
Supreme
that the
Court’s
” Johnson,
that his counsel
take.’
did
643
decision that
had not
preju-
shown
F.3d at
(quoting
928
Chandler v. United
dice was not
application
an unreasonable
States,
(11th
1305,
Cir.2000)
218 F.3d
1315
clearly
federal
established
law.
Id. at
(en banc)).
25-27.
thing
second
must show
IV. DISCUSSION
is that he
prejudiced by
his counsel’s
contends
the district court
performance,
“that,
deficient
which means
§
erred in
his 28
denying
U.S.C.
2254 ha- but
performance,
for his
deficient
counsel’s
petition
beas
corpus
should have ruled
there is a
probability
reasonable
that the
lawyers’ performance
his trial
proceeding
result of the
would have been
sentencing phase was ineffective under
Strickland,
(citing
different.” Id.
466 U.S.
668,
Washington,
Strickland v.
466 U.S.
694,
2068).
104 S.Ct. at
To find that
(1984).
2052,
104 S.Ct.
would have been different. In reviewing a In addition two-step to the Strickland § district court’s of a denial 2254 habeas showing, Holsey’s ineffective petition, assistance of only we for review clear error the by court’s but counsel claim factfindings governed review de novo is U.S.C. application 2254, § court’s the law to those facts. as amended Antiterrorism Penalty court’s with th[e] Act of 1996. state decision conflicts Effective Death 2254(d). AEDPA, § Under precedents. goes U.S.C. It no farther.” See 28 Court’s grant petitioner not a may court federal Harrington, 131 at 786. As the Su- S.Ct. “adju claim that was any relief habeas preme emphasized: Court has in state unless on the merits” court dicated 2254(d) view that Section reflects the “(1) ... decision was: the state court’s corpus against ex- “guard habeas to, an unreasonable contrary or involved treme malfunctions the state criminal of, Federal clearly established application systems,” justice substitute law, Supreme determined Court ordinary through ap- error correction (2) States; based United 307, Virginia, Jackson v. 443 U.S. peal. on an unreasonable determination 5, n. n. S.Ct. light the evidence facts (1979) (Stevens, J., concur- L.Ed.2d 560 Id.-, accord proceeding.” court the State ring judgment). As condition for 929; Allen, Johnson, 611 F.3d 643 F.3d at obtaining corpus from a federal habeas Hammond, Hall, *26 744-45; v. F.3d 586 at court, a show that prisoner state must (11th Cir.2009). A court’s 1289, 1306 state ruling claim the state court’s on the clearly of established federal application being presented in so federal court was of facts is or its determination the law justification in lacking that there was an jurist” only if no “fairminded unreasonable and comprehend- error well understood with court’s determi agree could the state existing beyond any possibility ed in law Harrington v. Richt or conclusion. nation disagreement. for fairminded — 770, 786, er, U.S.-, 178 131 S.Ct. (2011); Yarborough v. L.Ed.2d 624 accоrd at Id. 786-87.
Alvarado,
652, 664,
541
124 S.Ct.
U.S.
meet,
“If this
difficult
that
standard is
to
(2004).
2149, 158
2140,
938
In our
L.Ed.2d
it
is because was meant to be.” Id. at 786.
phrased
in Hill we
this
en banc decision
“to
designed
It was
to be difficult in order
a little
simply
maybe
“more
standard
judgments
that
are ac-
ensure
state-court
clearly:
jurists
if
fairminded
more
some
respect necessary
finality
corded the
decision,
agree with
court’s
could
the state
preserve
integrity
legal proceed-
the
disagree,
although
might
federal
others
ings
system
within our
of federalism.”
relief
denied.” 662 F.3d
habeas
must be
— U.S.-,
Ryan,
Martinez v.
132 S.Ct.
1346;
Sec’y Dep’t
v.
at
accord Sochor
(2012).
1316,
182 L.Ed.2d
(11th Cir.2012)
Corr.,
1016, 1028
685 F.3d
explanation:
this
Supreme
gave
Court
(“In
words,
may issue a writ
other
we
convic-
Federal habeas review
state
corpus only
pos
where there is no
habeas
sover-
tions frustrates both
States’
sibility
jurists
disagree
could
fairminded
eign power
punish
offenders and their
conflicts
that
the state court’s decision
good-faith attempts to honor constitu-
Supreme
precedents of the
Court
with
rights.
It
tional
disturbs the State’s
(quotation
States.”
marks
the United
omitted)).
significant
repose
in
for conclud-
interest
alterations
litigation,
society
right to
ed
denies
impose
AEDPA
a com
does
offenders,
in-
some
punish
admitted
relitigation
on
in federal
plete bar
sovereignty
degree
trudes on
to a
state
already rejected in
court of claims
state
ju-
matched
few exercises of federal
at
proceedings. Harrington,
131 S.Ct.
authority.
dicial
786;
Hill,
In
F.3d at
accord
(citation
at 787
Harrington, 131 S.Ct.
stead,
authority
preserves
to issue
“[i]t
omitted);
Calder-
quotation marks
accord
possibility
in cases where there
no
writ
555-56,
Thompson,
U.S.
jurists
disagree
could
on v.
fairminded
1489, 1500-01,
S.Ct.
1259
2254(d)(2).
though,
Cooper,
appears
§
may-
“Cumulative”
is a difference.
There
any
not
other
may
an
We could
find
or it
be
outlier.
“completely cumulative”
mean
analyzed
we have
a state
does not
decision where
not,
“largely cumulative”
but
cu-
the cumulative na
“largely
court’s conclusion about
Instead
“cumulative.”
mean
cumulative,”
“chiefly
ture of
as a determination of
means
mulative”
2254(d)(2).
cumulative,”
§
“more cumulative
Our “unreason
“mostly
or
facts under
analysis
House Webster’s
not.” See Random
able determination of
facts”
than
(2d ed.2001);
Dictionary 1084
Unabridged
Cooper
than
involved de
cases other
has
Inc.,
See,
679 F.3d
Depot,
v. Home
e.g.,
of historical facts.
terminations
Lanfear
cf.
(11th Cir.2012)
1267,
(“Primarily does
Hall,
1273,
v.
F.3d
1282-83
Rhode
exclusively; primarily
Cir.2009)
exclusive-
(11th
mean
not
under
(reviewing
primarily.”).
2254(d)(2)
ly means
person
§
counsel was
whether
investigation mitiga
ally involved
doubt about
have some serious
We
evidence);
Sec’y, Dep’t
tion
Carroll v.
factfinding
to be reviewed
treating as
Corr.,
(11th
Cir.
574 F.3d
1368-69
2254(d)(2)
Georgia
§
U.S.C.
under 28
2009)
2254(d)(2)
§
(reviewing under
wheth
that the addi
Court’s conclusion
Supreme
retarded);
mentally
er
defendant was
evidentiary hearing
evidence at the
tional
Allen,
Whisenhant v.
F.3d
of the evidence
“largely cumulative”
(11th
Cir.2009)
under
(reviewing
phase. The
sentencing
2254(d)(2)
judge
§
that a
whether
knew
not
cumulative” conclusion does
“largely
served).
properly
motion
a “determina
factfinding
seem be
subject to review
the facts” that is
tion of
appears
Our
decision also
to con
Cooper
it seems to
statutory provision;
under
Supreme
flict
Court’s decision
—
applica
nature of
a conclusion the
be
Pinholster,
-,
Cullen
U.S.
least,
very
it is
of law to fact. At
tion
(2011).
S.Ct.
if it would not factual Court court determination is not unrea merely it because courts do appellate have made sonable because the federal habeas So, factfindings. not make Cullen indi court would have reached different con Instead, Court in should not in the Cooper cates that this clusion first instance.” Id. determina “if jurists agree have treated “cumulative” some fairminded could decision, factfinding Georgia although tion as a and that the with the state court’s might “largely disagree,” de others the state Supreme Court’s cumulative” court’s Hill, is not probably this case is not a decision unrеasonable. termination unreasonable, at 1346. F.3d To be factfinding.20 finding error in the state court’s must be Nonetheless, the State in this case does possibility so clear there no for not contend that we treat that should not disagreement.” Harrington, “fairminded as a factfinding purposes determination 131 S.Ct. 786-87. AEDPA “demands 2254(d)(2), § doing not af so does given that state-court decisions be the ben assume, fect the result. So we will —Lett, efit of the doubt.” v. Renico U.S. argues, the determination was -, 1855, 1862, 176 130 S.Ct. L.Ed.2d 678 subject one of fact under review (2010) (quotation omitted); marks accord 2254(d)(2).21 not, however, § We will be Corr, Sec’y, v. Dep’t Morton Fla. deciding it been whether would have rea (11th Cir.2012). F.3d find that sonable to the additional collater To determine the Georgia whether Su- al hearing evidence was “cumulative” of preme Court’s “largely cumulative” deter- sentencing phase trial and evidence one, mination was an unreasonable we is not Georgia because that what the Su compare the trial evidence the evi- preme said. It “largely Court said cumu presented during postcon- dence the state lative,” and we will review for reasonable so, proceedings. doing viction keep we determination, ness in mind that Supreme the United States pruned down revision of it. Court, Court, this and other circuit courts C. of appeals generally hold Supreme As the has ob posteonviction Court proceedings is served, term is no “[t]he ‘unreasonable’ “cumulative” or “largely cumulative” to or Allen, doubt difficult define.” “duplicative” Wood of that presented at trial 841, 849, U.S. S.Ct. 175 when it tells a more detailed version of the *29 (2010). Despite L.Ed.2d 738 difficul story that provides same told at trial or more ty, the has explained Court “that a state- examples or better or amplifies the themes dissenting opinion 20. The application misconstrues our nation in Cullen was an of law to statements about the Cullen fact, decision. See . Georgia it Supreme follows that the Dissenting Op. saying 1280 n.5. We are "largely Court's cumulative” determination in 2254(d)(2) § applies only ato subset of application this case was also an of law to Instead, factfindings. pointing we are out simple It is fact. as as that. Supreme that the Court and Court have this courts, appellate held that federal of which dissenting opinion falsely 21. The accuses us one, Supreme the Court is find do not facts. disregarding Cooper the of decision. See Dis- Supreme It when the follows that Court deter- senting Op. 1279. While we believe that deci- presented mined in Cullen that the evidence wrong question sion is on the of whether proceeding “largely in the state collateral du- factfinding applica- "cumulative” is a or an plicated” pro- the evidence at the sentence fact, law to tion of we treat it as correct and ceeding, finding the Court was not facts but binding explain applying why case is law fact. And the this distin- because Su- preme “largely duplicated” guishable. Court’s determi- pp. See 88-89. infra
1261
Cullen,
1544,
See,
F.2d
Wainwright,
v.
778
1549-
Riley
jury.
e.g.,
to the
presented
Cir.1985)
(“The
(11th
51,
(describing
n. 14
‘new1evidence
1551
at 1409-10
131 S.Ct.
mitigation evidence
the
duplicated
“largely
cumulative”
forensic evi
largely
basi-
medical records
should
petitioner
at trial. School
dence
claimed
testimony of [the
cally substantiate
presented
sentencing
have been
at
because
and brother. Declara-
petitioner’s mother
only
forensic
would have
evidence
sup-
siblings
petitioner’s
[the
tions from
points
made
other
“buttressed]”
testimony
step-
that his
port his mother’s
witnesses);
Bradshaw,
v.
681
Jackson
explain
[the
abusive and
father was
(6th Cir.2012)
753,
(holding
F.3d
769-70
belts,
fists,
was
with
petitioner]
beaten
presented during
that evidence
added));
(emphases
wooden boards.”
even
proceedings
“largely
of
cumulative”
Belmontes,
15,
558 U.S.
130 S.Ct.
Wong v.
presented during sentencing be
evidence
(2009)
387-88,
383,
(per
328
175 L.Ed.2d
provided only
cause the collateral evidence
curiam) (holding
of the
“[s]ome
[addi-
“larger pool
of information of the same
merely cu-
mitigating] evidence was
tional
type
already
sentencing);
offered”
humanizing
[the
of
evidence
mulative
Houk,
(6th
618,
Beuke v.
537 F.3d
645-46
actually presented” because
petitioner]
Cir.2008)
petitioner’s
that the
col
(holding
was ...
ac-
sentencing jury
well
“[t]he
“largely
evidence
cumulative”
lateral
petitioner’s] back-
quainted
[the
evidence
at trial
presented
because
ground
potential humanizing
features”
“subject
matter [as]
it concerned
same
Allen,
omitted)); Boyd
marks
v.
(quotation
actually рresented át sentenc
the evidence
Cir.2010)
(11th
1274,
F.3d
1297-98
592
States,
832,
Paul v.
ing”);
United
534 F.3d
present-
that much of the evidence
(finding
(8th Cir.2008) (holding
842-43
that “[m]uch
petitioner during postconviction
by the
ed
of the new
evidence cited
[collateral]
in some measure cumu-
proceedings “was
largely
petitioner]
[the
cumulative
[was]
“much
the trial evidence because
lative” of
evidence
all)
the ‘new’
(although not
penalty phase
although
the trial”
hearing
post-conviction
introduced
might have provided
collateral evidence
simply
amplified
have
the themes
would
petitioner]^
detail
diffi
[the
“more
about
added));
(emphasis
already raised at trial”
compas
cult and
childhood
abusive
(“At
Rhode,
best,
(We
save
later a
will
discussion
ly
Shapiro’s explanation
Dr.
retarded and
contrary
lay
in the form of
evidence
of borderline mental retardation. That
testimony
presented
that the
at the
State
limited-intelligence
some
evidence
Hol-
evidentiary hearing
question
on the
presented in the state collateral court was
n.24.)
intelligence.
p. 99
sey’s
See
not
cumulative does
mean that
infra
Georgia Supreme Court’s conclusion that
shows, the limited-
comparison
As our
limited-intelligence
the state collateral
evi-
present-
intelligence
evidence
“largely
dence was
cumulative” was an
proceed-
during
postconviction
the state
ed
unreasonable determination
facts.
“subject matter
ings concerned the same
just
It
As
wasn’t
we have
unreasonable.
actually presented
the evidence
at sen-
[as]
described,
Beuke,
presented
645-46,
most
tencing,”
537 F.3d
col-
intelligence
about limited
the state
retelling
primarily
more detailed
cumulative
lateral court was
evi-
limited-intelhgence story
trial law-
“mostly”
sentencing
dence
at trial. And
yers
phase.
told
eight
depositions
the affidavits of
others.
22. To contradict those
and affida-
submitted
vits,
postconviction evidentiary
at the state
and the
Sills’
affidavits described
Sills,
hearing,
the State called Howard
ordinary, intelligent person.
as an
County,
Deputy
Chief
Sheriff Baldwin
former
*32
night
Roget’s Super
nights
See
Thesaurus
alone at
because she worked
“largely.”
ed.2010)
(4th
that
(stating
“mostly” is
at
club.
Clifford’s
synonym “largely”).
for
Reeves,
sister,
Holsey’s
testified about
Herring
in
v. Secretary,
Our decision
troubled,
his
abusive childhood. She told
Corrections,
Family,
described
around, beat him and ver-
severity
suffered when she was
the abuse
*34
Cullen,
J.,
bally
(Sotomayor,
dissenting);
him. See
S.Ct. at
at 1424
abused
accord
so,
at 1410 (majority op.).
1435.
id.
Even
the
“
Court
that the
Supreme
held
‘new’ evi-
presented during
The
the col-
evidence
of the
peti-
dence”
abuse suffered
the
evidentiary hearing
lateral
concerned the
“largely duplicated
tioner
the mitigation
“subject
same
matter
the evidence
[as]
trial”
[of
evidence
at
because it
abuse]
Beuke,
at
actually presented
sentencing.”
“supported]
testimony
his mother’s
that
would
mitigating
circumstances
for a federal habeas court is
aggravating
“whether
Strickland,
application
clearly
not warrant
did
death.”
state court’s
estab
695,
at
2069. And a
objectively
104 S.Ct. at
lished federal law was
unrea
U.S.
turn,
sonable,” Williams,
409,
probability, in
means “a
reasonable
continued
because it
evidence
Deputy
aggravating
in the murder
additional
thirty
age
not,
that,
aggra-
diagnosis
formal
Robinson,
“highly prejudicial
indicates
v. Bou-
personality
an antisocial
circumstance.” Frazier
does have
vating
(11th Cir.2011);
chard,
jurors
533
661 F.3d
“a trait most
And that is
disorder.
Corr.,
Sec’y
Dep’t
Cummings v.
and evi-
disfavorably upon”
to look
tend
for
cf.
Cir.2009)
(11th
1331, 1368-69
F.3d
mitigating but dam-
which “is not
dence of
petitioner’s]
[the
that “details of
(holding
Kokal,
(quota-
F.3d at 1349
aging.”
felony convictions”
prior
three
violent
McNeil,
omitted);
Suggs v.
marks
tion
testimony”).
“damaging
Cir.2010)
(11th
(describing
F.3d
sug-
aggravating” evidence
“potentially
aggravating
to all of the
In addition
has an antiso-
that the defendant
gesting
that was before
circumstances
disorder).
in at the
could
that came
The State
jury,
personality
the evidence
cial
rea-
hearing included more
before
put
damaging
state
have
Holsey a death
give
for the
those
sons
or both of
jury through either
First,
of Cor-
Department
sentence.
lawyers had called
if
trial
experts
records,
put
himself
which
rections
him, as Hol-
Cunningham testify
Dr.
evidentiary hearing,
at the
into evidence
they should
sey’s collateral counsel insist
at least one
that he committed
establish
Cullen,
generally
131 S.Ct.
have. See
incar-
prison.
act while
While
violent
calls an
petitioner
that if a
(explaining
“jumped on” another
cerated
testify
sentencing
expert witness to
teeth,
inmate, breaking that
inmate’s
aby
to rebuttal
“open[s]
it
the door
phase
nose,
bruising
his head.
bloodying his
expert”).
state
*38
(hold-
at 1368-69
Cummings, 588 F.3d
See
Sachy’s
Dr.
and
corroborating
Evidence
petitioner’s
“re-
that evidence of
ing
opinions was admitted dur-
Shapiro’s
Dr.
in
incidents
involvement
violent
peated
example,
For
ing
sentencing phase.
Second,
“damaging”).
prison”
in
is
while
psychiatric
evaluation
there was
evidence at the hear-
the State introduced
Holsey suffered
“behavior-
concluded
Holsey had been arrested
ing showing that
disorder,
includes ...
which
al/personality
battery,
in 1983 for theft
in 1982 for
That evalua-
component.”
antisocial
[an]
carrying
in 1990 for
a con-
shoplifting, and
had,
barely,
noted that
albeit
tion
weapon.
cealed
as must be
many antisocial behaviors
“as
during the evidentia-
Finally, it came out
in
histories of adults
present
childhood
Sachy,
Dr.
the State’s ex-
ry hearing that
antisocial
diagnosed
having
who are
witness,
Shapiro,
psychol-
and Dr.
pert
was also an
disorders.” There
personality
lawyers had hired to
Holsey’s trial
ogist
in
profile report
Department
offender
him,
opinion
were of
evaluate
records,
Holsey him-
which
of Corrections
in
com-
Holsey’s history
getting
fights,
evidentiary hearing,
at the
self introduced
and armed
mitting aggravated assaults
“An-
potentially
that he
has an
that states
robberies,
running
skipping school
Personality”
“psychological
and his
tisocial
home,
bringing a knife to
away from
very
being
risk for
suggests
high
profile
it to another student’s
putting
school and
violent.”
otherwise
assaultive and/or
personality
an antisocial
throat evidenced
evidence of
In addition to the substantial
for-
Holsey was never
Although
disorder.
in this
present
circumstances
aggravating
having
per-
antisocial
mally diagnosed as
case,
already discussed
some
as we have
disorder,
testimony
those
sonality
Holsey presented
the evidence that
length,
corrobo-
other evidence
experts,
two
evidentiary hearing
presented
about his limit-
stances
during resentencing”);
troubled,
intelligence
ed
and his
abusive
(11th
v. Dugger,
Stewart
877 F.2d
largely
childhood was
cumulative of the Cir.1989) (observing that additional char-
lawyers presented
evidence his trial
acter witnesses
“would
have
sentencing phase. The additional evidence
effect on
jury’s]
[the
verdict” because
in
pro-
the state collateral
testimony
merely
“[s]uch
would have
been
substantiated,
mostly
ceeding
supported,
cumulative”).
supplemented
the themes of Clifford
testimony by
and Reeves’ trial
discussed,
As we have also
Holsey did
providing
examples
more details and more
present some evidence of his limited intel
troubled,
intelligence
of his limited
ligence during
postconviction proceed
supra pp.
abusive childhood. See
75-90.
ings that might
cumulative,
not have been
The cumulative nature of that evidence
testimony
such as the
Cunningham
Dr.
weakens its usefulness to
on the
and Dr. Toomer that Holsey was mildly
See,
Cullen,
prejudice inquiry.
e.g.,
retarded,
mentally
which Dr. Cunningham
(holding
S.Ct. at 1409
that the petitioner
called a “catastrophic disability,” and the
prejudice
part
did not
establish
because
testimony
Shapiro
of Dr.
explaining that
‘new1
largely duplicated
evidence
“[t]he
someone
functioning
the borderline
trial”);
mitigation
Wong,
evidence at
mental retardation range is in approxi
(holding
petitioner
S.Ct. at 387-88
that the
mately the bottom
percentile
fifth
of intel
prejudice
part
did not establish
because
lectual functioning. But
the potentially
“[sjome of the
mitigating]
[additional
evi-
mitigating
Cunningham’s
effect of Dr.
merely
dence was
cumulative of the hu-
Dr.
Toomer’s
manizing
weakened
petitioner] actually
[the
be
presented;
it to what
adding
already
cause it is
contradicted
the testimony of
difference”);
there would have made little
three other mental
experts
health
—Dr.
Sochor, 685 F.3d at
(holding
that a Sachy,
Shapiro,
Dr.
and Dr. Einhorn.24
petitioner did not
prejudice
establish
in All
experts
three of those
testified that
part because
of the ... mitigating
“[m]ost
mentally
is not
retarded but in
evidence that
produced
[he]
the eviden-
stead functions in the borderline mental
*39
tiary hearing was cumulative of evidence
range,
retardation
which is information the
produced at
guilt
penalty phases
the
and
jury heard at the sentencing phase. And
trial”);
Boyd,
1272
pleas
naked
for
to the few
years old he
no relation
fifteen
that when he was
jury.”
mercy actually put before
IQan
test.
a 70 on
scored
393,
2456,
374,
at
at
125 S.Ct.
U.S.
a case where the
is not
Finally, this
Smith,
510,
Wiggins
in
U.S.
And
in the state
presented
evidence
additional
2527, 2542,
535,
To be
some of the
evi-
additional
counsel
in the state collateral
dence that
pre-
counsel
proceedings, and the weakened mitigating
helpful
sented would have
to Holsey
been
value of the potentially noncumulative evi
during
sentencing phase
of his trial.
dence that
they presented, a fairminded
case,
stage
But at this
after the
jurist
agree
could
Georgia
Su
adjudicated
state court has
his claim on preme Court that Holsey
preju
was not
merits,
helpful
evidence is not
diced
his trial lawyers’ assumed defi
helpful enough. Holsey must show more
ciencies at
the sentencing phase. See
than that
the evidence would have been
786;
Harrington, 131
at
Yarborough,
S.Ct.
helpful. He must
show
the evidence
2149; Hill,
sion is but that it is so AFFIRM the district court’s denial of Hol- jurist no fairminded reach could that con- 786; sey’s § Harrington, clusion. See U.S.C. 2254 habeas corpus peti- 131 S.Ct. at Yarborough, 541 U.S. at S.Ct. tion. *41 ’
25. We do not address whether we would
prejudice
have
tion that
was no
was “con-
.there
to,
concluded
a de
under
novo standard that
of,
trary
application
or an unreasonable
prejudice, just
dissenting
there was no
as the
law,
clearly established
as determined
Federal
opinion does not address whether it would
by
Supreme
the
Court of
United States.”
2254(d)(l)'s
§
have concluded under
standard
2254(d)(1).
§
28 U.S.C.
Georgia Supreme
that the
Court’s determina-
(often
longer
ones
words as
EDMONDSON,
Judge,
especially
Circuit
judgment:
point)
in the
later
concurring
peripheral
quot
to some
—and
if
flatly
quoting
ed
as law: as
someone was
Judge
I
Carnes about the
stand with
So,
a statute.
I feel more comfortable
appeal:
in
AFFIRM
judgment
correct
this
today just focusing briefly my
on
own view
deny ha-
judgment to
the District Court’s
point.
of a vital
prisoner
relief to the state
corpus
beas
very respectfully
not
petitioner.
I—
—do
Supreme
decision is en-
Georgia’s
Court
I
join
opinion.
in
erudite
Judge Carnes’s
In
titled to deference.
the context of the
opinion
it is not because the
stress
Georgia Supreme
opinion, I do not
Court’s
wrong
I
says something that
am sure is
cumulative,”
recognize
phrase, “largely
I
likely wrong.
agree
I am
is even
sure
really
as
a “determination of fact” within
But the
opinion,
with much of the
at least.
AEDPA;
I
meaning
see
than I
says
says
a lot and
more
opinion
merely
part
appellate
words as
a
of an
absolutely
think is
needed.
report
court’s
on how its decision was
my experience, longish opinions
al
such,
thought
through and reached. As
ways present
strong possibility
of error
itself,
“largely
phrase,
cumulative”
is
lurking
in the text. That the
somewhere
me,
insignificant
although
to
the ultimate
opinion
and careful
writer
is
skilled
Georgia’s Supreme
decision
Court reached
the risk. Fur
judge does
eliminate
significant.
is
For
prejudice
back-
thermore,
join in an
no one wishes to
Corr.,
ground,
Sec’y, Dep’t
see Evans v.
they
fully.
do not understand
opinion
(Edmondson, J.,
1272 n. 4
681 F.3d
hard,
time-consuming, painstaking
It
is
(vacated
dissenting)
rehearing
en
panel’s
judges
work for the
other
to check
banc). Furthermore,
I do not recognize
line,
by
long opinions,
by
line
cited case
anything
Cooper
Sec’y, Dep’t
done in
(Of course, always other
cited case.
cases
(11th
Corr.,
Cir.2011),
1275
record,
668,
ington,
2052,
fall
I
the
believe the def
466 U.S.
104
Given
S.Ct.
give by
(1984).
the
erence we are commanded
L.Ed.2d 674
Georgia’s
AEDPA to
decision
su
specifically
More
and as demonstrated
today.
preme
compels
court
affirmance
below,
Georgia Supreme
Court’s de
way,
state court deci
By
pertinent
termination that
the extensive evidence
is
sion that is due our deference
this deci
offered on collateral review
“largely
evidentiary
sion: that the full
record be
cumulative” is unreasonable in light of the
supreme
fore the state
court did not show
sparse
non-existent —evidence of
—almost
required by
prejudice
Strickland. Ob
childhood abuse and mental retardation
jurists
jectively
might disagree
reasonable
Holsey’s trial. See 28 U.S:C.
record;3
me,
prejudice on
this
but to
2254(d)(2).
trial,
§
At
a brief mention
a determination that Petitioner did not
was made of the fact that Holsey required
prejudice
show
is within the
beaten,
any
explanation
without
further
or
range
outside border of the
of reasonable.
description.
jury
never learned that
throughout his
subjected
childhood he was
BARKETT,
Judge, dissenting:
Circuit
severe,
to abuse so
so frequent, and so
my
For the reasons stated in
dissent in
neighbors
notorious
called his
1335,
Humphrey,
v.
Hill
662 F.3d
1365-78
childhood home “the Torture Chamber.”
(11th Cir.2011) (en banc), I continue to
Likewise, with reference to his status as
Georgia’s requirement
believe that
that de
mentally retarded,
borderline
a diagnosis
prove mental
beyond
fendants
retardation
undisputed by
is
the state’s expert
a reasonable doubt is unconstitutional un
witnesses,
jury
heard only that a re
304,
Virginia,
der Atkins v.
536 U.S.
port
him
listed
as borderline mentally re
(2002).
2242, 153
S.Ct.
L.Ed.2d 335
any
tarded without
testimony to explain
I also believe that the Georgia Supreme
consequences
extent and
of his condi
Court’s “decision” that the ineffectiveness
tion. Only
juror’s
one
necessary
vote was
prejudice Holsey
of counsel did not
is
to impose a life sentence.1 The record
“based on an unreasonable determination
here
demonstrates
“both the nature
facts,”
2254(d)(2)
§
see 28 U.S.C.
and the extent of the
petitioner
abuse the
(2006),
therefore,
we must conduct a
suffered” would have affected
proba
de novo review.
v.
Cooper Sec’y,
See
Dep’t
bility that “at
juror”
least one
would have
Corr.,
(11th Cir.2011);
with Robert Schofield (2007). Development Center at the 61-62 from the Youth Warden, 2254(d)(2)); Harvey § 629 F.3d Anderson, a Mend of
Essie
Cir.2011)
(11th
(applying
hospital
at the local
mother who worked
2254(d)(2)
regularly,
§
stated
court’s factual deter-
apartment
to state
and visited
throughout
known
underpinning
*45
that the abuse was well
its conclusion
minations
that “we
and reflected
neighborhood,
the
under
petitioner
prejudiced
the
was not
[Holsey’s
letting Mary
guilty
Strickland).
were all
for
away
way
she mis-
get
with
mother]
Cooper Secretary, Dep’t
In
v.
Correc-
kids,
all so scared
treated her
but we were
(11th Cir.2011),
tions,
F.3d 1328
we
tried
ourselves.” When Anderson
of her
that a state court’s re-
likewise concluded
intervene, Holsey’s mother would shout
to
Strickland, claim
jection
petitioner’s
aof
“I’ll kill him if I want to. These are
at her
on an unreasonable factual de-
was based
Harris re-
Neighbor
MY kids.”
Catherine
materially
under a
indistin-
termination
Holsey’s apartment when
going
called
guishable
Cooper,
set of facts.
watching Holsey’s
he was a child
rejected Richard
Supreme
Florida
Court
him
sister with a
mother attack
and his
ground
claim on the
Cooper’s Strickland
they
iron
tried to
curling
belt or
“while
“
part
that
‘a
of the information
substantial
in
up
down in a corner and curl
squat
regarding Cooper’s disadvantaged child-
Another
little ball to fend off her blows.”
”
trial,’
Cooper’s
at
hood was
Francis, recounted the
neighbor, Sandra
“
large part,
and therefore
‘in
introduction
had watched out the window and
times she
collateral
proffered [on
of the evidence
shook with fear while
mother
”
repetitive.’
would have been
See
review]
yard,
him in the
and that after these
beat
Cooper,
(quoting Cooper
ization of evidence as
petitioner’s
childhood
subsidiary
determination
dence of the
abusive
icated on
likely impact
jury.
to its
on the
See
being compared
due
the two bodies
535-37,
2527 (empha-
to each other.
it relates to his only reference to The mental retardation. Georgia As the trial court found on col- during the Holsey’s mental retardation review, Georgia lateral and as the Su- Reeves read- sentencing phase .Regina dispute, Holsey’s Court did not rec- preme mental retarda- ing the words “borderline jury any without ord was “read to created when report from a tion” explanation significance.” of its context testimony was as fol- fifteen. That Indeed, although Regina only was the wit- lows: explain ness who had the opportunity you I to read to the
Q:
during
And want
information
meaning
of this
psychological
of this
test-
jury
portion
Holsey’s sentencing,
she testified on collat-
And, again, just
dated 7-25-80.
eral review that she had never seen the
ing
it,
highlighted portion.
report
before she was asked to read
read the
thing
the whole
on not discussed this
with counsel
be able to read
will
trial,
had never heard her
page.
the next
This is
advance
page
this
mentally
borderline
brother described as
regarding Robert.
premeditated torture and
from the de
involved the
mur-
how Belmontes suffered
and of
de-
of two victims followed
deliberate
parture
husband and became
der
of her second
Allen,
”).
corpses.
id. at
Boyd
facement of their
See
1302-
control.’
'difficult to
Cir.2010),
(11th
Accordingly
1302 n. 7.
we stressed that
we distin
1287
unique mentally
to
retarded individuals is
“to understand
capacity
sey’s diminished
communicate,
information,
necessary
distinguish
mеntally
to
re-
process
to
reasoning, to control
logical
engage
mentally
tarded or borderline
retarded de-
and to understand
reactions
impulses,
culpability
from a defendant whose
fendant
Virginia, 536 U.S.
Atkins v.
of others.”
incapacity.
this
is not decreased
Such
2242,
304, 318,
L.Ed.2d 335
122
153
S.Ct.
not,
claims,
majority
testimony does
as the
(2002);
Haley,
306 F.3d
Brownlee
see
merely add “details” or elaborate on
(11th Cir.2002).13
1043, 1073
already
“themes” that have
been can-
instead,
vassed;
Regina
give
Reeves’
it is essential to
rec-
majority refers
testimony that
sentencing phase
ognition
“cognitive
to the
and behavioral
school,
was usu
“performed poorly
impairments that make these defendants
in
grade level
ally assigned to the next
at
morally culpable.”
less
Id.
534
grade
into that
actually passing
stead
sentencing phase
S.E.2d 312. The
testi-
level,”
Holsey “dropped out of school
that
mony wholly failed to describe the effects
that
grade,”
tenth
finishing the
before
borderline mental retardation.
“ ‘very
‘poor
and a
work
Holsey was
slow*
but
help from home’
Received Ineffective
who
III.
Assis-
‘need[ed]
er’
Majority
at 1262.
got
help.”
op.
During
never
tance of Counsel
the Pen-
However,
in the
re
nothing
alty
Trial
Phase of His
depth
severity
to describes the
ferred
Georgia Supreme
Because the
Court’s
distinguishes
impairment
mental
decision is founded on the unreasonable
mentally retarded defendant
borderline
sentencing
factual determination that the
Atkins,
general population. See
from the
phase testimony “highlighted” Holsey’s
(“If
319, 122
2242
at
S.Ct.
536 U.S.
mental retardation
abuse
borderline
in
average murderer is
culpability of the
mitigating
such that his
evidence was
justify the most extreme sanc
sufficient to
cumulative,”
“largely
apply
we must
de
State,
culpa
to the
the lesser
tion available
prejudice component
novo review to the
mentally retarded offender
bility of the
claim.
Strickland
See
that form of retribu
surely does not merit
1353;
2254(d)(2); Cooper,
§
646 F.3d at
tion.”).
testimony describing
say
To
Jones,
Moreover,
at
n. 5.
540 F.3d
having
academic difficulties
Georgia Supreme
Court did
because
by non-mentally retarded indi
are shared
deficiency prong of Hol
adjudicate
of Hol
“highlighted” the effects
viduals
merits,
sey’s
claim on the
we
Strickland
described on col
sey’s mental retardation
adjudication
have no state-court
of the de
is to erase the distinction
lateral review
Rompilla,
ficiency prong to defer to. See
mentally
persons and
between
retarded
390, 125
S.Ct. 2456.
U.S.
Atkins,
are not.
536 U.S.
those who
See
(“
definition,
‘By
[men
S.Ct.
Deficiency
A.
tally
individuals have substantial
retarded]
provided
To
that his counsel
establish
general popu
limitations not
shared
”
assistance, Holsey must show
ineffective
(quoting Atkins v. Common
lation.’
performance
objec-
counsel’s
wealth,
312, 325
534 S.E.2d
Va.
(2000)
tively
according
prevailing
unreasonable
(Koontz, J., dissenting))). Testimo
norms at the time of his trial.
impairments
professional
that are
ny that describes
impulse
ing, understanding, and
control as
abundantly
individual
clear
"[I]t
Supreme
by the
Court in At-
edge’
suf-
those described
'right on the
of mental retardation
Brownlee,
See
Moreover, “the information that
trial
Regina
trial,
read at
which re-
counsel
acquire
did
would have led a rea-
vealed that Holsey,
fifteen-year-old,
as a
attorney
sonable
to investigate further”
functioned at a third-grade
and to
level and
pervasive
discover the
abuse in
Williams,
IQan
background.
report
of 70. The
See
also referred to
F.3d at
During
having
course of coun-
a “borderline mental re-
trial,
preparation
sel’s
range”
four
tardation
intelligence
and as ex-
However,
525,
Based is a probability “A reasonable S.Ct. 2527. Prince, “any reason were available to undermine confi sufficient probability attorney would have real ably competent Holsey’s original in the outcome” dence information additional pursuing ized” that Strickland, 466 sentencing proceeding. deficiency “was nec Holsey’s mental about 2052. The likelihood 104 S.Ct. choice” U.S. making an informed essary to outcome must be “substan Wiggins, of different mitigation strategy. See about Shapiro report history. created no family Dr. the court to funds from 14. Prince obtained any diagno- findings, make and did not of his psychological Dr. pay assessment Hall, in advance but, mental condition sis as to v. Shapiro, as in Ferrell Michael counsel ever dis- Whether or not of trial. Shapiro "unjustifi- use of Dr. counsel's him, with Shapiro’s examination cussed unreasonably circumscribed.” 640 ably and of counsel’s interaction Cir.2011). limited evidence (11th Prince used F.3d investiga- Shapiro’s Shapiro reveals that Dr. competency only Shapiro to assess Dr. was, best, condition mental tion of inquire mental trial and did stand inquiry.” Id. "sharply limited mitigation. Shapiro relevant to limitations only provided him with testified that counsel supra n. 1. Holsey’s personal and 15. See two-page summary of tial,” peace need not that his duty. but show officer the line of See Ga. (10). likely 17-10-30(b)(2), (8), § counsel’s errors “more than not al Code Ann. addition, the outcome.” Harrington tered Richt the state er, -U.S.-, 770, 791, 131 S.Ct. non-statutory aggravating circum- (2011) (internal quotation L.Ed.2d 624 stances that had stabbed a man in omitted). marks that, fight a barroom at- tempted to flee the fight, barroom a man above, As detailed is not a case “[t]his handed him a rifle with which he shot at a barely which the new evidence would have pursuer. *56 sentencing profile” altered the presented Porter, sentencing jury. to the 130 S.Ct. However, aggravating these circum- (internal omitted). at quotation marks stances were weakened defense evi- Holsey’s mitigating precisely evidence is at dence trial and would have been further potent combination of child abuse and diminished evidence borderline mental retardation that was collateral review. As to the three statuto- prejudice held to establish in Williams v. ry itself, aggravators relating to the crime Taylor. See 529 at U.S. 120 S.Ct. the Supreme Court and our circuit both Moreover, 1495. neither of the state’s ex have held mitigating evidence of child witnesses, Einhorn, pert Sachy Drs. impairment abuse and mental like disputes mentally is borderline probability to create a reasonable of out- retarded, both agree witnesses with Hol weighing evidence of crimes that far were sey’s experts that he “malinger was not more aggravated than this one. In Rom- ing” retardation, or faking the effects of pilla, Supreme Court held that miti- and no question witness has called into gating evidence of abuse and mental infir- Holsey’s evidence that he was the victim of mity created a probability reasonable of throughout severe abuse his childhood and outweighing aggravating evidence of mur- Therefore, Holsey’s adolescence. mitigat torture, involving der a simultaneous felo- ing especially evidence is strong because it ny, history and a of including violent crime “consistent, unwavering, compelling, and rape at knifepoint. See 542 at U.S. wholly Hall, unrebutted.” Ferrell 640 392-93, 2576; 124 S.Ct. at id. (11th 1199, 1234 Cir.2011). F.3d J., (Kennedy, S.Ct. 2576 dissenting). Williams, the Court held that This is not a case omitted mit- aggravating where the igating evidence of abuse clearly factors so and borderline outweighed mitigat- may retardation ing outweighed have circumstances that rob- there is no substan- bery and murder that probability juror aggravated by tial one would have subsequent the defendant’s weighed them “violent as- differently. jury’s sen- elderly saults on tence of death was victims” and arson com- statutory based on four prison. mitted while in aggravating See 529 circumstances. The U.S. first of 368-69, 398, Likewise, these factors S.Ct. 1495. in was based on prior Cooper, we held that mitigating conviction for evidence robbery armed when he was alone, old, child abuse eighteen years without mental im- which he robbed pairment, convenience created a using probability store a brick. reasonable The re- crime, maining outweighing three evidence were derived from the im- mediate which an “extremely circumstances of aggravated triple crime: shooting Deputy homicide” involving execution-style Robinson oc- curred while murder of fled the scene of a restrained victims. See 646 robbery, that 1338-41, it occurred in order to evade F.3d 1353-56. And John- arrest, son, and that Deputy Robinson was we held that mitigating child abuse fight alone, impair- Holsey did start the and stabbed without mental evidence only probability of Simmons after Simmons had ment, a reasonable blud- created geoned Holsey in back of the head outweighing defendant’s brick, Holsey to separate causing pro- with a bleed victims five murder two circumstances, from the Lucille including fusely head. Kendrick aggravating cold, dancing that Holsey “in a testified with her murders committed were calculated, up manner.” when came from behind Hol- premeditated Simmons sey and hit him in the back of F.3d at the head See hand, object with an in his case was The murder involved this bleeding from the head. started the murder[s] more brutal than “no him, pushed away leaving Kendrick from at 937. And the cul- case[s].” Id. th[ese] shirt, of his blood on her some started with this murder would pability associated fighting Simmons. by the ex- diminished have been describing Similarly, Holsey, effect of Clifford owner pert lim- Wayne retardation on his the bar who is not a relative of Holsey’s borderline *57 capacity process Holsey, consistently “to understand and described Kenneth ited information, cousin, from to and experience, to learn Simmons Simmons’ Scottie Simmons, logical reasoning, control as the engage aggressors fight. or to the Atkins, Holsey 122 Specifically,' 536 U.S. at Clifford testified that impulses.” Simmons, cousin,' Similarly, as to fourth his an accomplice the and S.Ct. coming con- from another club aggravating prior factor of were to Clif- eighteen, weight Holsey. the to age viction of ford’s bar attack When Sim- arrived, aggravating Holsey this circumstance would mons Clifford of went outside by companions been the collateral testi- to meet him and his have reduced and told extent the abuse them not to mony describing Holsey, interfere who Holsey throughout already girl- suffered his ado- was inside the bar with that lescence, friend, bothering any- as well as his borderline mental because “he is not Herring, body. Wayne going you is not if retardation. See Jackson bother (11th Cir.1995) However, (holding you F.3d don’t bother him.” Sim- from around aggravating “slipped evidence murder would mons out me and and place,” “[e]vidence have been diminished show- went on inside the once inside genesis jumped Wayne. irra- he “went in there and ing [the defendant’s] Wayne an had himself rage through upbring- tional abusive And to defend because family go- ing”). Scottie were [Simmons] ing attack him.” Regarding non-statutory aggrava- Hawkins, Further, fight, Holsey’s girl- ting regarding barroom Belinda Simmons, person him night Kenneth who was friend who was with on the altercation, stabbed, that he “had words with” testified testified Simmons Holsey Holsey about the club fight between two others come to to attack incident Wayne Simmons’ cousin that occurred earlier because of an that had Simmons, Holsey, earlier night. According night. She remem- occurred unprovoked, Holsey then him in to her in coming otherwise stabbed bered the bar from his running the back with a knife. Simmons testified with blood head. She Holsey him happened, that he could not remember what he asked what told him Holsey had said to each other. In con- her Simmons had hit with a brick trast, present Holsey four who on from behind. Like Clifford witnesses were Kendrick, fight Wayne that Lucille she testified that night the bar testified
Holsey fight. Finally, did not start the significantly all weaken the aggravating fac- tors.”) (internal testimony of this omitted). corroborated Re- quotation marks Reeves, gina who testified at trial Although the majority claims that testi Holsey had “three holes in his head” as a mony from defense psychologists would fight, result of the bar temple, one on the have led to testimony by introduction of head, and two on the back side of his all of Dr. Shapiro and Dr. Sachy Simmons, required which Bertha stitches. conduct “evidenced an personali antisocial who is not related to Kenneth or Scottie disorder,”16 ty neither doctor gave opin Simmons, testified that she did not know ion that exhibited this disorder. who started fight but did see most, At Sachy Dr. opined, hypothetically stab Kenneth Simmons four times. abstract, and in the that aggravated as say We cannot that a reasonable sault, fighting, and successful armed rob weigh would fight evidence of the bar bery were each individually more consis heavily against Rather, Holsey. tent with personality antisocial than with weight showed that Sim- However, mental retardation. Sachy Dr. mons attacked first from behind made no diagnosis, and gave opinion, no and that Simmons came to the bar with Holsey, and made no conclusions companions two specific purpose any based on review of Holsey’s conduct in assaulting Holsey. The weight of the tes- particular. part, For his Shapiro Dr. re timony revealed that stabbed Sim- peatedly to make an antisocial per refused mons in the fight midst of a that started sonality diagnosis or to give any opinion *58 after Simmons inflicted a serious head about antisocial personality disorder based wound Holsey. on him, on the information available to de As for the evidence that fired spite counsel for the state’s persistent cousin, rifle at Simmons, Kenneth’s Scottie questioning. aggravating weight of testimony this Furthermore, many aspects of Dr. by was diminished Scottie Simmons’ ad Sachy’s testimony would have been under- mission that he pursuing Holsey was mined on cross examination or by rebutted order to attack him Holsey as left the bar. Holsey’s experts. Specifically, although Moreover, Holsey’s experts testified on Dr. Sachy testified that Holsey does not collateral review prone is to signs show “gross of neurological disfunc- follow the instructions from others as a tioning” physical or abnormality, and that consequence retardation, of his mental Holsey’s cognitive functioning “grossly was Holsey fired the rifle at only Simmons intact,” he admitted on cross examination after a person third handed the rifle to that none of these necessarily features is cock, him instructed on how to correlated with mental retardation. In ad- aim, and fire it as Simmons approached. dition, Dr. Sachy readily that, admitted Ferrell, See 640 F.3d at (holding prej because he a psychiatrist is and not a udice in part established where “evidence psychologist, he was unable any to criticize of petitioner’s] [the mental illness measur of testing conducted Cunning- Drs. ably weakens the aggravating circum Toomer, ham Einhorn, and even Dr. stances” providing explanation an all of which registered falling scores within petitioner’s conduct); Hardwick v. range of mental retardation. (11th Crosby, 1127, 1185 Cir.2003) 320 F.3d (“[Psychiatric mitigating Moreover, evidence not Holsey’s expert Dr. Cun- only can act in mitigation, it also ningham could prepared persua- offer Majority op. at 1270. I think used to them Sachy’s people .... call Dr. assessment of criticism sive ... [mentally people] simple retarded out in his flaws pointed would have terminology was the the time. That overall, and, it as methodology described find just I did fail to in the And statistically scientifically and on relying record, anything significant indicating a In information. selective inappropriate, This corrobo simplicity.” real Sachy testified that Dr. particular, criticism that Dr. Cunningham’s rates Dr. Holsey’s physical on based opinion scientifically on Sachy inappropri relied Holsey’s use and on appearance17 anecdotes, including stereotypes ate “complex,” Sachy deemed Dr. words mentally persons, rather retarded “single most explained were which statistically scientifically val than on upon that he relied significant thing” by which to assess mental re id method However, Dr. diagnosis.18 form Cunningham Dr. testified that tardation. opinion that his Sachy admitted Sachy’s vocabulary reliance on is not Dr. of men contraindicative these words are diag on which to appropriate basis based his own on tal retardation because, nose mental retardation whereas any rather than on subjective judgment “systematic vocabulary assessment of testing as survey, normed such ten or subtests in full one of eleven Holsey’s experts’ the basis formed test, IQ unsystematic subjective ... scale justify his reliance Asked to opinions. is not at all a way evaluation reliable retar vocabulary a measure mental mental retardation.” There diagnosing stated, dation, separates “what Sachy Dr. fore, excluding diagnosis mental re language lower animals than our us from tardation based on anecdotal mean, say people I [sic]? skills vocabulary extraordinarily “would be an open your mouth that’s when you when inappropriate application make.” you’re At stupid.” find out people other contrast, Sachy neither Dr. nor Dr. Ein Sachy Dr. related points, other several any criticism of the method horn offered *59 during his view that conduct his and Drs. ology assessments conducted of mental retar crime was not indicative Introducing Toomer. Cunningham and part in conduct was dation because evidence of child Holsey’s mitigating “non-silly.” He also “stupid” or was and retardation would abuse borderline assessment, that, conducting in stated his signifi led to introduction of not have blatant, ju silly, ... “looking he was for beyond aggravating cant evidence what venile, mentally ways of be during original retarded heard sentencing.19 having person dysfunctional that make a majority Holsey's response, Cunningham references arrests Dr. testified that 19.The simple shop- battery and for and general- physical are abnormal characteristics carrying lifting, firearm, however, and 1990 for a concealed only ly indicative of severe mental retardation both of earlier arrests Holsey's not relevant to contention during Holsey’s poverty- abuse- and occurred mildly mentally retarded. he is adolescence, 1990 concealed- stricken charges dropped. weapon were And al- Sachy statements that Dr. 18. The words or Holsey’s prison though records reflect some (pro- the words “forbidden'' identified were violations, disciplinary also con- records “forbidded”), by Holsey "subpoe- nounced conduct, mitigating tain statements his na,” "coverup,” phrases “animosity,” and the activity as those counselor such from love,” if I'm “don’t know "unconditional "appears honestly staying interested in "things happen coming going,” rea- quiet any trouble” and "is individual out of son,” "my at stake.” life is pretty appears stay much to him- [who] self.” Because we presume must the jury
evaluating acting evidence “reason-
ably, conscientiously, impartially,” see Strickland, 695, U.S. 104 S.Ct.
I cannot juror hearing believe that one all mitigating would not credit Holsey’s experts lay witnesses and find fully to be either mentally retarded or borderline mentally retarded
and so cognitive diminished behavioral capacity as to be ineligi- either
ble for or undeserving of the penal- death ty. When combined with evi- abuse,
dence of his horrific child none of which to his sentencing jury, there is a substantial probability that juror
one would not have voted favor of the death penalty had this evidence been
introduced
competent counsel. See
Wiggins,
2527;
Williams,
quires receive a new sentenc- ing hearing.
KERNEL OY, RECORDS
Plaintiff-Appellant
, v. *60 Timothy MOSLEY, Timbaland, f.k.a. Recordings, Inc.,
UMG Interscope- Geffen-A&M, Interscope, d.b.a. d.b.a. Geffen, Mosley Group, LLC, Music Universal Distribution, al., Music et Defendants-Appellees.
No. 11-12769. United States Court of Appeals,
Eleventh Circuit.
Sept. notes basic academic levels Lewis, Henry injuring McGriff. That too to in placed were low for him be voca report “Holsey states that like[s] training. parole tional A 1989 review sum inmates.”16 to intimidate new records, mary, which is in the same set Corrections, prison] Department that: his arrival [in states “Since records Holsey satisfactory adjust has a made a also contain December 1992 offender average performance He an ment. has profile report. report That that states rating presently is enrolled school Holsey has an Per potentially “Antisocial grade at 8.3 level.” sonality” “psychological his pro high file for suggests very being risk Holsey’s Department of Corrections rec assaultive otherwise It violent.” contain disciplinary report ords a 1985 and/or Institute, Holsey “currently adds that functioning from the Georgia Industrial during he average range intelligence.”17 where was an inmate the 1980s. psychologist thugs. who from 1974 until 1990 Lewis attested his affidavit that processing part” Depart- fights "ran Holsey prison did not start and did diagnostic ment of Corrections' center. fighting. In all he could to avoid He also said affidavit, Holsey stated Dr. Eber look Holsey "rough prison had a time of it in intelligence a modified Culture Fair test in ... because he in the In was slow head.” but that results of test "cannot Georgia affidavit Williams attested that the intelligence” diag- be used as measure to prison was a Industrial Institute violent explained nose mental retardation. He required fight where an inmate was to to Department of Corrections does not em- protect himself. did note He himself ploy psychologist to administer Culture prison, had an altercation with test, timed, is not Fair test modified but said that it was "out of for character” skills, reading test does not take into account Holsey. and that "the used evaluate norms IQ potential Georgia Diag- maximum report apparently 17. The contain does this nostic Classification Center were not the standard disclaimer: produced by the [Culture Fair] norms test's THIS COMPUTER GENERATED REPORT Instead, publisher.” developed Dr. Eber had BE SHOULD VIEWED WITH CAUTION. study using Georgia the norms a research IT MAY NOT ACCURATELYDESCRIBE prisoners, given and the test that THIS OFFENDER. THESE STATE- purposes had been revised "to better [the] suit MENTS ARE ON BEHAV- BASED THE prison related to vocational and rehabilita- IORS AND HISTORIES OF PERSONS tion.” SCORES, SIMILAR TEST INTER- WITH RESPONSES, VIEW AND PERSONAL explain away attempt those disci- THE reports, CHARACTERISTICS. DIAGNOSTIC plinary Holsey’s collateral counsel people AND TREATMENT SUGGESTIONS BE- submitted the affidavits of three SHOULD AS HY- Georgia LOW BE CONSIDERED whom had served time at the McGriff, Billy BE CON- Industrial Lewis, POTHESES WHICH SHOULD Institute: Rothman Henry FIRMED OR RULED OUT FOLLOWING Williams. McGriff attested in his affidavit that did not like EXAMINATION BY THE DIAGNOSTIC fight, target prison which him made STAFF OR OTHER PERSONNEL.