*1 to consult under the ESA impose duty HITTSON, Petitioner- Travis Clinton action under con- taking
before Appellee-Cross Appellant, time. Life short. sideration must, can, by necessity pro- EPA step. promulgate It did not step by ceed WARDEN, Respondent- GDCP for requirements and PM haze the NOx Appellant-Cross Appellee. years Plant until 35 after the 1977 Air Act. Re- amendments to the Clean No. 12-16103. quiring pollutants it to consult about all Appeals, States Court of United one or a
whenever it decides address Eleventh Circuit. only delay is al- few of them could what ready prolonged process.11 July III. CONCLUSION concern, bag- main
WildEarth’s
houses should have been included
BART has mooted for Units been
the closure of those units. And WildEarth identify any
has failed to discretion of the mercury
EPA to otherwise reduce and se- pollution part agency
lenium as promulgation
action at of a FIP to issue—
reduce PM and at the Plant. NOx petition DENY re-
We WildEarth’s
view. S02, the EPA would have selected standards more it would lose on the merits of that issue stringent than the MATS standards if it had for the same reasons that it loses on the regulated mercury selenium in FIP. argument directly that the FIP should have why We see no reason the EPA cannot choose regulated mercury and selenium. The EPA regulate pollutants hazardous air and re- proposed regulating never rule- this S02 gional-haze pollutants, governed by which are making. In the final FIP the EPA noted that statutory provisions different with different it had examined emissions in 2007 and S02 goals, separate rulemakings. And if Wild- that the comments it received about S02 regula- Earth is concerned that EPA's direct rulemaking “essentially repackaged] this mercury tion of and selenium under provided comments received and a re- [it] stringent enough, MATS rule was not it can FIP, sponse for on the 2007 FIP.” Final challenge directly. that rule Fed.Reg. regulat- at 51638. EPA’sinaction in ing agency is not an action that would adding
11. It is worth that if WildEarth had S02 preserved trigger duty argument regulation to consult under the ESA. its about *6 Kammer, Painter, Robyn
Brian A. Kir- Salchow, Atlanta, GA, for Petitioner- sten Appellee-Cross Appellant. Graham, Burton, Attaway Beth
Sabrina
Atlanta,
Law,
GA,
Georgia Department of
Respondent-Appellant-Cross Appellee.
CARNES,
Judge,
Before
Chief
WILSON,
Judges.
TJOFLAT and
Circuit
TJOFLAT,
Judge:
Circuit
Hittson and Ed-
April
Travis
Vollmer,
men in
ward
who were enlisted
*7
killed, mutilated,
Navy, brutally
the
shipmate Conway
their
dismembered
Ut-
crime,
to
terbeck. Hittson confessed
the
February
and in
1993 he was convicted of
Superior
murder in the
Court of Houston
County, Georgia. During
penalty
the
trial,1
phase of his
Hittson tried to show
co-defendant, Vollmer,
his
manipulated
the murder and
Hitt-
planned
jury
unanimously
Georgia death-penalty
proceed in
which the same
must
find
cases
two
statutory aggravating
phases.
guilty
a
at least one
factor in
If a defendant is found
of
capital
guilt phase,,
to return a death sentence.
See
during
offense
then
order
17-10-2(c); 17-10-31(a).
§§
proceeds
penalty phase, during
the case
to the
O.C.G.A.
The
found that
carry
him
it out. This
District Court
Hittson
helping
son into
entitled -to habeas relief from his
jury
and the
returned
strategy fell short
on
sentence,
psychol-
as an death sentence based
the State
finding
unanimous death
ogist’s testimony.
Humphrey,
Hittson v.
the murder “was
factor that
aggravating
(MTT),
No. 5:01-cv-384
vile, horrible,
WL
wantonly
outrageously or
(M.D.Ga.
2012).
10—30(b)(7).at *56
Nov.
The court
§
O.C.G.A.
inhuman.” See
IT—
found that
trial court’s allowance of the
ap-
direct
After Hittson exhausted his
testimony denied Hittson
psychologist’s
his
in the
collateral attack remedies
peal and
Fifth and
rights
Sixth Amendment
under
courts,
Georgia
petitioned
the United
Smith,
Estelle v.
451 U.S.
101 S.Ct.
for the Middle Dis-
States District Court
(1981),4
v. U.S. (2013) by point explains Part which death sentence. IV 185 L.Ed.2d — in already underway this briefing § 2254 in review- apply standard we under recognized certain cir- Trevino appeal. ing Georgia courts’ denial of Hittson’s may court in a federal cumstances which V, VI, In parts constitutional claims. and petitioner’s failure to excuse a habeas VII, dispose of those claims. we review in claims state court. properly raise his con- explains Part our reasons for VIII — at-, 1920-21; 133 S.Ct. U.S. cluding may rely Hittson on Trevino to — Ryan, Martinez v. U.S. see also procedural excuse his default. And we -, briefly part conclude in IX. (2012). Before Trevino L.Ed.2d down, sought leave from came I. to add four new the District Court petition claims to his federal A. —claims in of his state he had not raised Hittson, spring In the Travis The District Court denied proceedings. Vollmer, Conway Edward Utterbeck the motion. Because Trevino has some Forrestal, were stationed aboard the USS analysis, bearing on the District Court’s an aircraft carrier that was based in Pen- to decide: expanded we Hittson’s COA sacola, Florida, They at the time. were all Hittson should be allowed to Whether assigned to the electrical division of the in- petition amend his federal habeas engineering department. Vollmer and ineffective clude claims of assistance detail, Hittson were on the same work previously trial counsel were de- which Leading Petty was Hittson’s Offi- Vollmer through prior counsel in state faulted assignment cer. Utterbeck had a different light proceedings habeas Unit- capacity but worked in a similar in the Supreme ruling ed Court’s States ship. same area of the Trevino Thaler.... 3,1992, Friday, April On Vollmer invited reviewing After the record and enter- Hittson and Utterbeck to come with him to arguments in taining parties’ open Robins, parents’ house in (1) Warner court, the District we reverse Court’s Georgia, parents the weekend. His Hitt- grant setting of habeas relief aside out of Apparently on the were town. neither son’s death sentence based State (2) psychologist’s testimony, affirm the Hittson nor Utterbeck was aware that the Brady of Hittson’s shortly District Court’s denial other had also been invited until claims and ineffective-assistance-of-counsel they before left three men Pensacola. (3) claim, does not hold Trevino parents’ arrived at Vollmer’s house late to raise new that he enable Hittson claims Friday evening, but did not have a litigate failed to in state court. key, spent night storage so Saturday, shed behind the house. On opinion Part I of this describes April parents a friend of Vollmer’s came crime, to the in the presented as house; on finding to check Vollmer chief, State’s case in and the law enforce- there, gave and the two others them a Part II covers Hitt- investigation. ment’s key. spent The three sailors most of the trial, appeal son’s 1993 his direct day Saturday hanging around the Court, Georgia Supreme and that court’s house, Saturday evening, sometime but grant corpus refusal to him relief. drinking. § Hittson and Vollmer went out proceedings Part III covers at the house. They the United District Court and its left Utterbeck States *9 morning Sunday, April you?” gave pistol Vollmer Hittson the .22 Early in the drinking, hours of Hittson keep after several and stood on Utterbeck’s hand to him headed back to the Vollmer and Vollmer struggling. “no, from Utterbeck screamed According to the statement la- residence. no,” life, begged and for his but Hittson enforcement, by Hittson to law given ter him point shot blank in the forehead. very by drunk that time. On the he was words, his own “I had no emotion or noth- back, up by Hittson drive Vollmer worked my I ing on face. know I didn’t. I was “going him that telling Utterbeck was steps cold and Vollmer on his hand and plotting Utterbeck was get us”—that ... me I gun, handed shot him.” got get kill the of them —so “we’ve two stripped Hittson and Vollmer Utter- him point— At killing him” first. some body, taking beck’s found in $62 it is not clear told though when—Vollmer pockets. They body his left the in the Hittson that Utterbeck had a hit list with kitchen and went nearby to a Waffle names on it. Hittson’s and Vollmer’s get something House to to eat. Upon they pulled driveway, into the When return, their told Vollmer Hittson that on a and a put bulletproof Vollmer vest they had to body dismember the and clean long grabbed trench coat and a sawed-off up They the house to conceal the crime. handgun a .22 from shotgun and caliber initially up body tried to' cut with a gave car. He Hittson an aluminum bat kitchen, serrated steak knife from the but also in the car and told Hittson was then switched to a hacksaw from the tool waiting that Utterbeck was for them inside They out piece shed back. also found a planning the house and was to shoot shed, they placed slate in the which under go them.5 Vollmer instructed Hittson body scratching to avoid up kitchen him in “get “get in first and him” and then directions, Following floor. Vollmér’s the kitchen” —so would make Hittson sawed off one of Utterbeck’s carpet. mess on the began working sawing hands off his house, Hittson entered the When head, got stop. but sick and had to Vollm- in asleep found Utterbeck a recliner head, sawing er finished off the the other living up room. Hittson sneaked on him hand, and both feet. Vollmer also skinned and hit him the head with the bat. part arm with a of Utterbeck’s and chest up jumped up Utterbeck woke out of pair pliers. autopsy knife and a hit him in the chair. Hittson the head later showed that buttocks Utterbeck’s again, knocking him to the floor. Utterbeck penis partially were skinned and his himself, a hand to so Hittson raised defend and rectum removed. Hitt- testicles were hit him hit his with the bat and then hand performing son the sexual mutila- denied in the head a third time. The third hit tion and stated that he had not seen apparently enough to subdue Utter- it Vollmer do either. dragged beck. Hittson him his hands task, finishing grisly After their Hittson kitchen, into the where Vollmer was wait- torso wrapped and Vollmer Utterbeck’s ing. was still conscious and Utterbeck Hittson, body bags parts plastic asked “what did I ever do to and severed parents guns indicate that Utterbeck harbored 5. While Vollmer’s did have the record to house, particular ill will towards either Hittson their it has never been established Vollmer, (whom any inten- whether described as or or that Utterbeck had Vollmer And, night. "very paranoid”) actually that Utter- tion to do them harm that other believed itself, planning night, no evidence in beck was to kill them that than the crime there is just get the record to indicate that Vollmer or Hittson if Vollmer told Hittson as much to kill Utterbeck. There is no evidence in had a reason to kill Utterbeck. him to *10 they clothing dumpster and ID card in a close in kitchen while drove left them the dig a nearby area to shallow leav- parents’ to a wooded to Vollmer’s house. Before returning to they were Vollm- grave. Robins, As ing they stopped at Vollm- Warner 10:30 on Sun- house—around parents’ er’s say an hour to er’s sister-in-law’s about day happened pull to onto morning they goodbye. they As drove back to Pensaco- — in front of a local woman who highway the la, good place tried to find a to Vollmer The traveling in the same direction. was remaining body parts, ap- but dump car, which woman took notice of Vollmer’s spot liking. find a to his parently did not plate license had an out-of-state was They made it to Pensacola around back traveled dirt road pulling lightly off of a Monday, April a.m. on 6. With Utter- undeveloped an tract of land that led to trunk, body parts still in beck’s Vollmer’s Suspicious, she wrote owned a friend. they Navy report- drove onto the base and plate license number and a de- down the duty ed for aboard the Forrestal. When car, later scription of the which she turned they got day, they off drove to a work County Sheriffs Of- over to the Houston wooded area outside of Pensacola and bur- fice after torso was discovered Utterbeck’s body in parts ied the several shallow holes. later. property on the two months town, they On their drive back into scat- to Hittson and Vollmer returned Vollm- remaining in pieces tered some evidence began cleaning parents’ er’s house dumpsters. a few living off the kitchen floor and the blood (who sister-in-law carpet. room Vollmer’s B. nearby) lived came around noon on report Utterbeck failed to for roll When Sunday, they cleaning. were still while Monday, Navy call on April took go to to grab Vollmer left with her bite note of his unauthorized absence did but eat, letting her without inside ever investigate not further until later they gone, house. While were month, when mother called Utterbeck’s returned, cleaning. kept When Vollmer commander to him that division tell she grave out to the and Hittson drove back had not heard from her son since the first bury and then went back Utterbeck’s torso April weekend in he had traveled —when cleaning. family The the house to finish shipmates. to Warner with two Robins given key friend them the came who had Inquiries Navy aboard the Forrestal led by Sunday to check on house evening personnel to Hittson and Vollmer. When again. quickly hide Hittson had Utter- whereabouts, questioned about Utterbeck’s beck’s and throw a blanket over a clothes they they gone confirmed that spot living blood room. lingering parents’ April Vollmer’s house over the family friend asked where the When Utterbeck, with weekend but claimed was, him guy third Vollmer told that Ut- him dropped off a bar asleep terbeck was the back room. early Pensacola morning sometime finally Hittson and Vollmer finished Monday, April hours of April On Sunday cleaning up the house sometime Investigative is- Naval Service evening, they packed up and so and set out missing persons alert for sued Utter- They put for Pensacola. Utterbeck’s sev- beck, May and on 5 he was declared hands, head, ered and feet in the trunk of Navy deserter. . car, along with a few other Vollmer’s torso On June Utterbeck’s pieces evidence, including Utterbeck’s card, by loggers clearing who were clothing, .22 discovered his identification and the casing. They property par- shell the wooded near Vollmer’s threw Utterbeck’s remaining body parts the Hous- cola where the were loggers called ents’ house. Office, told investigators unearthed buried. He also County who ton Sheriffs *11 bat, where to find the baseball crime lab which and sent it to the state the torso and Vollmer had stashed the rafters of not the autopsy in Atlanta. The did reveal parents’ shed at the Vollmer’s house. the identity. Upon hearing about victim’s custody by Hittson was then taken into the woman, who had body, the local dead County Houston Sheriffs Office. That li- earlier written down Vollmer’s months day, same Vollmer was arrested in Hous- office. The plate, cense called the sheriffs County, parents’ ton at his house. had written down was plate number she County digit, one so the Houston off day, investigators The next executed immediately trace were not able to officials search warrants for Vollmer’s car and his the car to Vollmer. parents’ They house. found traces of blood and .22 caliber ammunition in the 23,1992, receiving after no new
On June They trunk of Vollmer’s car. recovered whereabouts, Navy on leads Utterbeck’s bat, pistol, the .22 the aluminum the hack- investigators request broadcast a to other saw, piece the of slate Hittson and Vollmer information agencies enforcement law during dismembering, used the other and match- regarding any unidentified bodies house, pieces various of evidence from the description. The ing general Utterbeck’s and found traces blood on the County responded Houston Sheriffs Office kitchen floor and baseboard. informing Navy day, the same the remains of a white they had unearthed II. matching male Utterbeck’s characteristics miles from approximately two Vollmer’s A. house, esti- parents’ with a time of death County grand jury A Houston returned early April. mated sometime in 30, 1992, charging an indictment on June County from Houston and Investigators Hittson and with four counts: Vollmer 25, on Navy interviewed Hittson June One, murder; Two, malice Count Count initially story— to his 1992. Hittson stuck Three, aggravated robbery; armed Count dropped that he and Vollmer had Utter- Four, assault; possession and of a Count early Monday off at a sometime beck bar during firearm the commission of a crime. confronted with morning being after arraignment, pled defendants At both —but investigators’ suspicions the Hous- guilty, September body, found Utterbeck’s dismembered Attorney a notice County ton District filed Hittson confessed that he and Vollmer had intention to seek the death State’s him there. murdered Utterbeck buried against Hittson and penalty. cases given severed; trial, In a statement to the investi- taped joint at a Vollmer were confession, for the gators played implicated was later which Hittson’s —which murder, Vollmer, technically described the dis- be introduced would —Hittson memberment, disposal body against only, spillover Hittson but the ef- confessing, deny After a fair trial.6 The parts detail. fect would Vollmer first. investigators spot against outside Pensa- Hittson would be tried led case trial, implicated joint the wit- confession that another defendant 6. At a unless Hittson took stand, highly unlikely, prejudicial ness which would be joint constitutes er- at a trial States, unable to examine him ror_”) Vollmer would be (citing 391 Bruton v. United generally his confession. See Reeves v. 1620, 1622, about 123, 126, U.S. State, 1, 3, 567, 568 237 Ga. 226 S.E.2d (1968)). L.Ed.2d ("[T]he (1976) of a co-defendant’s admission mason, began February 276 Ga. S.E.2d trial Hittson’s (2003). of Houston Superior in the Hittson’s During guilt phase, County. against defense a death sen- the framework formed recorded confession half; day tence and a it consisted of took case, experts with various for the State’s testimony twenty lay witnesses who confirming gory de- lay witnesses joined either knew Hittson before he grue- a raft of related and tails Hittson Navy supervised him or or worked with showing autopsy photos Utterbeck’s some por- him on the Forrestal. The witnesses torso and severed partially-decomposed *12 who, trayed good-natured guy Hittson as a hands, head, and feet. The State rested dim-witted, though somewhat was a hard days, three and Hittson did its case after eager please. ship- worker and was to His guilt. a defense to contest On put on mates, of an apartment some whom shared February jury Saturday, Pensacola, him in Hitt- with testified that guilty on all counts.7 found Hittson frequently heavily son drank and and penalty phase began stupid things The of the trial would sometimes do when law, Monday, Georgia March 1. Under to drunk. The defense also elicited testimo- death, ny grew up murderer to that Hittson in an unaffeetion- sentence a convicted a unanimous ate home and of jury constantly must return verdict was search others, statutorily ag- from finding occasionally at least one defined affirmation § grew depressed thought factor. O.C.G.A. 17-10- because he no gravating See one 31(a). him, State, relying go great on the evidence could love and he would to phase, lengths by to to presented guilt pointed accepted in the be others. Several in support shipmates two such factors of a death of his testified that he was im- pressionable gullible the murder was committed dur- gener- sentence: and would ing aggravated ally go along thought commission of an bat- with whatever he 17-10-30(b)(2), § tery, people id. and the wanted from him. His supervisors see outrageously wantonly e.g., “was had similar “he murder was assessments — vile, horrible, just guidance or inhuman it in- a kid that needed some mind, torture, direction,” depravity very fragile per- volved of or an and “he had a victim,” aggravated battery sonality to the see id. and he wanted to fit in.” Lt. 17-10-30(b)(7).8 officer, § put Mapp, The State did not Cornelius Hittson’s division during penalty explained type per- new evidence that “Hittson’s the phase. you son that can convince that he’d done assessment, In anything.” his Hittson Georgia jury A must also consider miti- capable wasn’t of such a brutal murder— gating deciding factors in whether to re- guilty, “If I think guilty being he’s he’s 17-10-30(b). § turn Id. a death sentence. presence of a crime and he didn’t jury aggravating Even if the finds an fac- report it.” sentence, tor, a they may still return life requirement explain painting with no contrast Hittson as the doing easily-duped dependent person- their reasons for so. Head v. Tho- kid with a Two, robbery, jury during capital 7. On Count armed the commission of another fel- However, (the guilty charge ony robbery). found Hittson of the lesser armed because by taking. jury by taking theft guilty found Hittson of theft robbery, supra, instead of armed see note jury initially proposed aggrava- the trial court instructed the on the 8. The State a third factor, ting aggravating above. that the murder was committed two factors listed sought portray Vollm- wanted the to draw was that ality, the defense Vollmer sociopath plotted who had thinking er as a violent about killing been someone into manipulated murder and while, quite a April and on that week- helping carry him it out. Several wit- end, Hittson “was led Mr. Vollmer to do intelli- nesses testified that Vollmer was out of perverse this some or demented domineering; shipmate one ex- gent and fantasy that Mr. Vollmer had enter- people to think he plained he “wanted tained.” control,” a friend of Vollmer’s According theory, to the defense’s it was explained play peo- that he “liked to with surprise no that someone like Hittson submitted let- ple’s heads.” The defense would be vulnerable to manipulation by written that showed him ters Vollmer someone like Vollmer. The narrative arrogant Shipmates and violent.9 be sought to basically away create was “that guy” described Vollmer a “violent who as co-defendant, from the was a [Hittson] grudge” hold a “likes to was known lot, pretty guy harmless ... he drank keep bulletproof vest and aluminum but, basically, he was sort of needy kind occasionally carry in his car and bat *13 guy, of harmless little and that Mr. Vollm- shotgun under his trench coat. sawed-off er was the operation brains this and The defense laid out evidence that basically manipulated doing into [Hittson] contemplating murder Vollmer had been something that he would have never long April before the 3 weekend. On during penalty done.”12 One witness occasions, three or four Vollmer borrowed phase described Hittson as Vollmer’s shipmate’s copy documentary a of a de- In “dog.” “sidekick”—his the words of scribing techniques forensic used to detect witness, was, know, another you “Vollmer He read books about and solve murders. do, somebody he liked to tell what to and people, murder. He told several both be- know, guy, you Hittson was the kind of if murder, and after that the best fore you’re you his friend and ... tell him way dispose body up. of a was to cut it do, something to he’ll do it. So Vollmer letters, In one of his described a Vollmer somebody had to tell what to do and some- plan boyfriend to murder the of a detailed it, somebody body to do and Hittson had romantically woman he used to be involved who ... would tell him what to do.” Utterbeck, Regarding with.10 a few wit- distinguish To further Hittson from not like nesses testified Vollmer did Vollmer, presented testimony the defense and, murder, prior him had to the told weekend, that, April after that their rela- shipmates disagreements had with who tionship continued deteriorated. Vollmer Utterbeck that he would “take care of’ guy.” jokingly He to be thé “same old him for one them. No ever identified told his friends that he had killed Utter- concrete motive for either Vollmer or Hitt- son, they that if shot shipmates but the inference the defense team beck and told 56-9, by example, bragged partic- (testimony given trial 9. For Vollmer about 11. Doc. at 95 gang fights, dealing drugs, put- ipating in and during proceedings before the counsel habeas heads; ting Court). bounties out on rivals' he called County Superior Butts “King Knights himself wrote, Death” and dying “I'm not afraid of and I have no (testimony given by 12. Doc. at 61-62 problem killing anyone.... are Morals with during proceedings be- trial counsel trying justify place their life.” for losers Court). Superior County fore the Butts plan out no 10. laid letter had similarities to Utterbeck's murder. obvious any expert in-
someone, put opinion them in the heart decided not to to shoot head, condition; because head wounds testimony stead of the of Hittson’s mental Hittson comparison, too much. instead, bleed they lay testimony stuck to the hanging around after the stopped Vollmer already and presented rested got fight shortly in a they even Nonetheless, State, in re- their ease. murder — arrested —and Hittson before were buttal, testimony proffered camera the depressed and be- became withdrawn witness, give, “lay” Dr. Storms would as night even more. One after gan to drink description about Hittson’s of Utterbeck- heavy drinking, Hittson confessed to some ostensibly testimony to counter Nix’s Nix, friend, his best Steven Utterbeck Hittson was remorseful. The defense if coming back.” When asked “wasn’t ever strenuously objected proffer team to the during appeared Hittson remorseful this grounds on the that Hittson’s waiver of his conversation, responded, “[l]ooking Nix right against Miranda self-incrimination now, maybe, might have been.” back was limited to the admission of Dr. testimony that To rebut Nix’s Hittson testimony opinion Storms’s to rebut remorseful, might have been State experts’ opinions. defense The court over- Storms, psychologist called Dr. Robert objection, ruled the and Dr. Storms testi- employed the State had to examine Hitt- jury in fied before the accordance with his trial,13 prior testify to statements son proffer. the examination. during made name, stating After position, trial, Prior to the defense team had Hitt- Hittson, interviewing reason for Dr. psychologist psy- son examined Storms testified as follows: considering using chiatrist were some *14 experts’ findings mitigation of the as evi- Now, Q your in the course of ... inter- during penalty phase. pre- the To dence time, you, any view with did [Hittson] evidence, right present serve their to this a opinion, give ask him about his or to began they the trial few weeks before filed some Conway statement about Mr. Ut- of Notice of Intent Defense to Raise terbeck? Insanity Incompetence. Issue of or Mental A Yes. I wanted to find out about that (1993) (now UnifiSuper. See Ga. Ct. R. 31.4 relationship. 31.5). Rule To allow the State to counter experts’ findings, the defense would, the trial Q right. you All And if please, granted court the State’s motion for an state what this defendant said about requiring Hittson order to submit to an Conway. by an of expert examination the State’s Well, point A at one he that Mr. stated choosing, attorneys Dr. Storms. Hittson’s “hillbilly,” Utterbeck was a and at an- examination,
were allowed to attend the
point
other
he stated that he was an
signed
waiving
and
a form
Hittson
“asshole.”
rights
Miranda14
before talking to Dr.
interview,
attorneys
did not cross examine
During
Storms.
the
Hittson de-
“hillbilly”
present
Utterbeck as a
and an Dr. Storms or
evidence in
scribed
eventually
“asshole.” The defense team
surrebuttal.
Arizona,
psychologist
was the
Dr. Storms
senior
14. Miranda v.
(1966).
signing
In its to jury, the the The court further clarified that “hillbilly” State made reference to the “[djepravity of mind ais reflection of an again: “asshole” comments utterly corrupt, perverted, or immoral [Yjou’ve heard one of the defense wit- mind,” state of deciding and in whether about, well, talk nesses as I think about the mindset, murder involved such a it now he was I think remorseful. jury could consider “the actions of the Well, was remorseful. members prior defendant to and after the commis- jury, your there’s remorse. (Referring murder,” sion of the including whether the easel.)[15] late, early, rather, As or as “subjected defendant body of a de- as three ago weeks this is this defen- ceased victim to mutilation.” response dant’s when asked about Con- jury The took all way Utterbeck an being innocent human evidence from being. Conway hillbilly, guilt phase was he was with them into delibera- an asshole. Is tions, remorse? What including picture of Utterbeck be- your does sense you? common tell murder; fore the pictures of Utterbeck’s you? What does reason tell mutilated head, hands, torso and severed feet; autopsy photos showing In the mu- closing argument, defense’s Hitt- great detail; tilation in attorney diagram son’s and a discounted the comments sought mitigate parents’ Vollmer’s impact by their indicating house where pointing cooperation out Hittson’s with in- Hittson hit bat, Utterbeck with the vestigators confessed, led investiga- dragged kitchen, him into the and where —he body parts, tors and told them he positioned when Hittson shot him. words, where find the bat. other jury also had the defense’s exhibits regardless of how Hittson described Utter- from penalty phase, including the let- beck, he was clearly overcome guilt with by Vollmer, ters written pictures several about what he why else would done— family child, Hittson with his and as a he have confessed and aided investigators project an art Hittson made school. in making against the case him? During deliberations, jury sent the The court charged with their court two questions aimed at whether a that, in considering whether to im- task — *15 “life actually sentence” meant that Hittson pose the penalty, they death unanimously spend would the rest in prison. of his life find at least one aggravating factor to exist The court responded both repeating to beyond a reasonable doubt. In explaining original charge, its that a life sentence requirements the for finding that the mur- meant Hittson would the “serve remainder “outrageously vile, der was wantonly or of life in the penitentiary.” After approxi- horrible, inhuman,” or the court instructed mately hours, four jury the returned a jury the that they must find that the mur- unanimous death aggrava- sentence. The mind; der involved either depravity of “[1] or [2] torture of the victim prior to the ting circumstance found was that the victim; death murder “outrageously was or aggravated wantonly or [3] battery vile, horrible, inhuman, to the victim prior to the death it in- See O.C.G.A. § victim.” 17-10- volved depravity of mind.” The im- judge 15. The record does not indicate what Attorney was "hillbilly” District wrote and "as- easel, displayed on the but one Hittson’s "big poster shole” on displayed o.f boards” and attorneys testified County before the Butts them during portion to the some of his Court, Superior hearing in a on Hittson's closing argument. petition corpus, for a writ habeas
1226 examination, of the Sixth in violation on March sentence death posed Hittson’s Estelle v. relied on Hittson Amendment. 17,1993. 1866, 454, Smith, 101 S.Ct. 1993, guilty to pled Vollmer In October (1981), for legal as the basis L.Ed.2d 359 for a life exchange murder count the- convenience, re-we For arguments. both currently eligible isHe sentence.16 Amendment Fifth and Sixth fer to the parole. testimony on Dr. Storms’s violations based B. “Estelle claims.” as Hittson’s and convictions his appealed Hittson 1994, Supreme Georgia In October Supreme Georgia to the sentence death convictions Hittson’s upheld Court errors; Court, raft of trial court asserting a State, 264 Ga. sentence. Hittson death ruling the court’s among them was chief (1994), cert. denied 682, 449 S.E.2d testify in accor- Dr. Storms allowed 2005, 131 L.Ed.2d U.S. Hittson’s brief to proffer. his dance with (1995). Fifth rejecting his Amend objection his reiterated Supreme Court claim, that Hitt- explained the court ment that, that he trial, the extent arguing at against voluntarily privilege waived his son self-incrimina- against privilege his waived signed the Mi when self-incrimination Miranda waiver signed the when he tion examination. Id. prior to the randa form court-ordered and submitted to form 684-85, 449 S.E.2d S.E.2d limited to examination, that waiver no Sixth court found 591-92. And the expert defense the State rebut allowing because the trial Amendment violation Thus, his mental condition. testimony of defense adequately instructed coun court Dr. Storms the trial court allowed when nature of the exami scope on the sel lay to rebut Hittson’s testify as a witness it and them to observe nation and allowed remorse, beyond it went evidence necessary. Id. at objections voice if the waiver and violated scope of at 592. 449 S.E.2d against compelled Amendment right Fifth argued also Hittson self-incrimination. C. to Dr. that, ordering to submit him petitioned Hittson In December any notice examination without Storms’s County, of Butts Geor- Superior against be used that his statements could corpus. See gia, for a writ of present expert if he did him—even alleged petition § His O.C.G.A. 9-14-42. trial defense—the testimony in his own “at of counsel virtual- ineffective assistance meaningful assis- him denied court during every stage critical before ly with of counsel connection tance semi-conscious, who it was Mr. Hittson Attorney who tried The District explained gun eyes and blew his plea put deal his Vollmer between and offered *16 seeking penalty for Hitt- for the death reasons so ... from factual brains out. And son, offering plea, as follows: Vollmer while stronger oth- standpoint, that’s a case. The They’re was a my impression [Vollmer] things, they’re was nebulous. [I]t more er certainly per- manipulator an evil more, know, and plane they you on some other is, deciding problem ... The I had son. talking you start might a lot but when mean my my gut have to divorce what to do I what, did and who about facts and evidence what feelings evidence is and from what the would, great that the had a I concern like, know, all his you felt the law is. I say, well [Vollmer] end didn’t in the would evil, being problems personality and his bat, swing the trigger, he didn’t pull the it, you it was Mr. want to call whatever the point a bird in hand. I felt at so got Mr. swung the bat and who Hittson 56-11, at Doc. 148-49. dazed or basically groggy or Utterbeck trial.” The claim ineffective-assistance be- While Hittson’s application CPC was us in appeal fore the pending, immediate the Georgia Supreme Court de- —that counsel, Hittson’s trial penalty State, the cided 217, Nance v. 272 Ga. trial, phase (2000), of his failed to present mitigat- S.E.2d 560 in which the court ex- ing expert testimony regarding plicitly his back- overruled its decision in Hittson’s ground direct appeal and mental on the among following condition—was point: allegations.17 the The also petition raised [W]hen defendant must submit to a claim, a “protective” Brady general- which court-ordered mental health examination ly alleged that the exculpa- State withheld because he present wishes to expert tory evidence but did identify the evi- mental health testimony trial, at his dence. petition Hittson’s did not expert may include State only testify in rebuttal his Estelle to the Georgia testimony claims—because the of the defense expert or rejected to rebut the Supreme testimony Court claims on di- the defendant rect himself. appeal, precluded he was raising from
them on collateral attack absent an inter-
vening change in the law. See Bruce v.
To the extent
Hittson
State author-
Smith,
432, 434,
808,
274 Ga.
553 S.E.2d
ized a
expert
State
to testify in response
(2001).
lay
testimony
witness
that the defen-
dant
remorseful,
it is overruled.
Superior
two-day
Court held a
evi-
220,
2,
dentiary
Id. at
220 n.
hearing
petition
565,
on Hittson’s
526 S.E.2d at
(citations omitted).
n. 2
October 1997. At the close of
hearing,
Hittson did not
seek
the court
leave to
application
denied
amend his CPC
protective
Hittson’s
Bra
Georgia
ask the
dy
Supreme
claim because he
Court to
failed to come forward
consid-
er the effect of
exculpatory
with
Nance
his Estelle
evidence the
claims
State
(which he had not raised in
had withheld at
trial.
In an order
Butts
issued
Court).
County Superior
However,
1998,
in July
after
shaped
court
the Supreme Court denied his
appli-
CPC
allegations
ineffective-assistance
into eight
cation, Hittson filed a motion for
rejected
discrete claims
reconsid-
all of them
eration, asking
high
court to consider
under the standard set
forth
Strickland
the Estelle claims in light of Nance. The
v. Washington,
668, 687, 104
466 U.S.
S.Ct.
Supreme
summarily
denied the
(1984).
mo-
ed the COA
particular
claims.
tive-assistance-of-counsel
“[A]n
at 1520.
unreasonable
120 S.Ct.
from
is
application of federal law different
IV.
federal
law.”
application of
an incorrect
grant
the
or
novo
review de
“We
410,
long as
“[S]o
any of the
that a
no AEDPA requirement
there is
lacked
Hittson’s claims
concluding
rejecting
its reasons
explain
state court
merit,
Supreme Court
arguable
2254(d)
claim;
even
applies
“Section
prior pro
from
record
of the
the benefit
summary
denial.”
there has been
where
hearings
transcripts
ceedings,
—
Pinholster,
-,
v.
U.S.
Cullen
briefing
petitions,24 and
held on his habeas
(2011).
179 L.Ed.2d
S.Ct.
claims.
of his constitutional
on the merits
presented
claim has been
a federal
“When
an ad
clearly constitutes
a standard
Such
state court has
court and the
to a state
pur
for AEDPA
on the merits
judication
relief, may be
presumed
it
denied
—
Williams,
U.S.
poses. See Johnson
on the
adjudicated
claim
state court
1088, 1097, 185
L.Ed.2d
-,
absence of
indication
merits
*21
(“A
to
(2013)
said
normally
judgment
to
con-
principles
the
procedural
state-law
only if it
on the merits
have been rendered
Richter,
-,
131
562 U.S. at
trary.”
heard and
after the court
was delivered
in these
Our
situa-
S.Ct. at 784-85.
task
parties’
evidence
the
evaluated the
the
the record before
tions is to review
(alteration,
em
arguments.”
substantive
to “determine
Georgia Supreme Court
omitted)).
marks
phasis,
quotation
or,
supported
arguments or theories
what
here,
supported,
the state
high court
could have
Georgia
the
as
While
at-,
court’s decision.”25 Id.
131 S.Ct.
why it
explaining
denied each CPC without
[summary]
warrant def
required
affirmances
court[s’]
to
Georgia prisoners are
Because
23.
summary
'the
under AEDPA because
erence
exhausted
have
apply for a
before
CPC
decision does
22,
nature of a state court’s
remedies,
supra, claims
note
their state
see
”
due,'
v.
that it is
Gill
the deference
lessen
application are unex-
not in Hittson's CPC
1272,
(11th
Mecusker,
Cir.
633 F.3d
1288
hausted.
Moore,
2011)
Wright
278 F.3d
(quoting
v.
fact,
granted
Supreme
1245,
(11th
Hitt-
Cir.2002)). Accordingly,
Court
In
we
1254
appeal
through”
summary
a CPC to
deci
application for
son's
to "look
declined
by
appellate
denial of
second
court and instead
Superior
first
a state
Court’s
sion
out
instruc-
the record to
"whether the
petition and remanded with
reviewed
see
habeas
proceedings permits a
evidentiary
court
an
come of the state
conduct
tions that the court
(em
Id.
grant
relief in
case.”
of habeas
this
hearing.
added);
v. GDCP War
phasis
see also Jones
Richter,
applied the
this circuit
2957433,
25. Prior to
den,
1171, 1182, 2014 WL
F.3d
753
decision, Ylst v.
Supreme
pre-AEDPA
24, 2014)
Court’s
*10,
(11th
Apr.
11-14774
Cir.
No.
2590,
797,
Nunnemaker,
111 S.Ct.
U.S.
501
Supreme
(“Though
Georgia
Court did not
(1991),
through
to “look
deny
peti
L.Ed.2d 706
115
give
[to
its decision
for
reasons
”
appellate
summary
courts—
state
application],
decisions
a state
'[w]here
CPC
tioner's
2254(d),
§
"the
reviewing,
unaccompanied by
last rea
under
an ex
decision is
court’s
petitioner’s
court.
McGa
planation,
a state
See
habeas
burden still
soned decision”
Corr.,
1252,
by showing
1261
was no reason
Dep’t
560 F.3d
there
hee v. Ala.
must be met
”
Allen,
Cir.2009);
deny
(11th
relief.'
v.
602
the state
to
Powell
able
court
n. 12
basis
-,
Richter,
1263,
(11th Cir.2010) ("When
131 S.Ct.
(quoting
nying both claims. But that does not end V. inquiry. our We must decide whether violations, these yielded which Dr. begin with the two We Estelle claims. testimony, Storms’s prejudiced Hittson’s The first claim Estelle is that Hittson’s defense in penalty phase so to entitle Fifth right against Amendment self-in- Hittson to habeas relief. crimination was denied when the trial court, objection, over permitted A. Dr. testify Storms to before the §In 2254 proceedings, federal proffer. conformance with his in camera courts must evaluate constitutional errors
The second claim is that
the trial court
under the harmless-error
standard articu
deprived
any meaningful
Hittson of
assis-
Abrahamson,
lated in
Brecht
tance of counsel when it
him
ordered
*22
1710,
113 S.Ct.
that Dr. Storms’s
dence,
of Dr.
impact
we must measure
jury’s
injurious effect” on the
stantial
light
testimony on the
Storms’s
over Hittson’s sentence. We
deliberations
them at the
body of evidence before
novo; therefore, we
this decision de
review
Kotteakos,
328 U.S. at
time. See
if Dr.
the record
determine
review
(“[Courts] must take account
at 1248
S.Ct.
testimony had a “substantial
Storms’s
jury],
meant to [the
of what the error
jury’s
effect” on the
delibera
injurious
alone,
standing
but in rela-
singled out and
review,
conducting
“[t]he
this
tions.
ana-
happened.”).
tion to all else that
We
merely whether there was
inquiry
not]
[is
at several
impact by “looking
lyze this
result,
from
apart
enough
support
factors,
including
importance
‘the
It
affected
the error.
phase
testimony
prosecution’s
in the
witness’[s]
*23
so,
rather,
itself
whether the error
case,
even
testimony
the
was cumula-
whether
Kotteakos, 328
influence.”
tive,
had substantial
absence of evidence
presence
the
or
764-65,
If there
contradicting
66
at 1248.
the testimo-
corroborating
U.S. at
S.Ct.
or
...
points,
material
possibility
ny
“more than
reasonable
of the witness on
is
course,
and,
strength
overall
of the
to the conviction or
the
the error contributed
”
Allen,
v.
605
case.’ Mason
sentence,”
prosecution’s
is not harmless.
then the error
prej-
testimony did not cause "actual
stringent
than
Storms’s
prejudice”
is more
standard
application
our own
of Brecht.
Chapman
udice” under
review of the state court's
AEDPA
370, 390,
determination,
Berghuis v.
require
See
it "makes no sense to
Thompkins,
2265,
L.Ed.2d 1098
176
because the
application of both tests”
formal
(2010) ("Courts
deny
can ...
writs of
"obviously
the
Brecht standard
subsumes”
by engaging
§
in de
corpus under
2254
novo
AEDPA/Chapman standard.”
"more liberal
119-20,
AEDPA
review when it is unclear whether
Fry,
B.
head,
to Pensacola with
hands,
his severed
begin
jury’s
with the
We
sentence. The
and feet
stopping
say
off to
trunk —
found,
jury
deliberating
after
for four
“bye” to Vollmer’s sister-in-law on the way
hours, that Hittson should be sentenced to out of town. Clearly, the
justi-
crime itself
death on account
“outrageously
or
fied
jury’s
conclusion that Hittson car-
vile, horrible,
wantonly
or inhuman” na-
ried out an “outrageously
vile,
wantonly
or
§
ture of the murder. See O.C.G.A.
17- horrible, or inhuman” murder with “de-
10-30(b)(7). The trial court instructed the
pravity of mind.”
that,
jury
rely
aggrava-
order to
on this
While Brecht “does not require a show-
factor,
ting
it must find that the murder
ing that but for the error
jury
would
vile,
“outrageously
wantonly
was both
or
have rendered a verdict in favor of the
horrible, or inhuman” and that it involved
defendant,” Duest,
997 F.2d at
mind;
“depravity of
or torture to the vic-
overwhelming amount of evidence that
prior
victim;
tim
to the death of the
or
supports the aggravating factor
found
aggravated battery to the victim prior to
the jury particularly
post-mortem
the death of the victim.” As the court
—
mutilation,
dismemberment and
which the
it,
explained
“[djepravity of mind is a re-
explicitly
court
mentioned in its charge—
flection
utterly corrupt, perverted,
of an
convinces us that Dr.
testimony
Storms’s
mind,”
immoral state of
and in evaluating
mindset,
did not meaningfully influence the
jury
jury’s
Hittson’s
could consider
“prior
“vile, horrible,
his actions
reliance
to and after the
on the
commis-
and inhu-
murder,”
sion of the
including whether he man” aggravating factor. See Mansfield,
“subjected
body
of a
(“[T]he
deceased victim to
It abundantly jury clear that the could ”). significant corroborating evidence.... have relied on aggravating this factor in testimony. absence Dr. Storms’s In reaching the opposite conclu confession, heard taped sion, explained: the District Court during calmly which he described his role *24 Dr. testimony Storms’ that Hittson in the murder: how he found Utterbeck called Utterbeck an asshole and hillbil- (who, Vollmer, according to planning was ly certainly helped prove the State de- them) room, asleep living ambush in the pravity jury of mind. The was instruct- hit in Utterbeck the head with a baseball ed that could consider Hittson’s times, bat three him dragged to the kitch- actions after the commission of the en so as not to make a mess on the living crime. Dr. testimony Storms’ was the carpet, room and shot him in the forehead only evidence that months after the begged while he strip- his life. After crime, completely and with Vollmer out ping corpse leaving Utterbeck’s and it to picture, of the possessed Hittson a “cor- floor, bleed out on the kitchen Hittson and rupt” or “immoral state of mind.” grab Vollmer left to a bite to Upon eat. Hittson, return, WL at *40. their We meticulously sawed off head, hands, feet, reject flatly Utterbeck’s and the District and at Court’s conclusion him, least one of them jury castrated skinned that the found Hittson’s statements to days twenty and crime, the course of two Over Storms, long after the made Dr. horrible, witnesses, “vile, the mention of remorse probative be his phase the murder or came from Hitt- during penalty inhuman” nature of Forrestal, or immoral” corrupt, perverted, “utterly Steven best friend on son’s The trial court told that, mind. state of told when Hittson Nix. Nix testified mindset that, evaluating Hittson’s jury back, coming was never him Utterbeck murder, they should consider during the sad, down, “kind-of kind-of Hittson seemed battery, aggravated committed whether he 74-9, Doc. at 43. depressed.” kind-of heard, torture, jury The or mutilation.27 remorseful, if seemed asked Hittson When mouth, a detailed de Hittson’s own from Looking back responded, “Maybe.... Nix cut Utter- he and Vollmer scription how now, I maybe, might have been.... garbage bags, him into and stuffed up beck time.” Id. at 48. notice it at the didn’t grisly a raft of paraded the State re- only other evidence of Hittson’s to Hitt- jury give life photos before one of the during trial came from morse the trial court’s light son’s words. He who interviewed Hittson. detectives overwhelming and the evi instructions testified, phase, prior during guilt jury’s aggravating supporting the dence confessing: factor, jury, that the we do not believe possibly been I felt that [Hittson] duty, gave any faithfully executing their not something that he was involved testimony in con weight to Dr. Storms’s of, something that he extremely proud “vile, out the cluding that Hittson carried might of that he part had been horrible, and inhuman” murder with “de of; necessarily instigator been the have mind.”28 pravity of that he possibility that there was a merely factor al- aggravating But the wrong place at had been at the jury to return a death sentence. lowed the time; some- wrong this was Hittson to They could have still sentenced I real sure that he thing that wasn’t cir- mitigating based on imprisonment life with; could, might he could live that it cumstances, we must also assess and so would be to his best interest to clear testimony of Dr. Storms’s the effectiveness conscience, really happened. to tell what mitigation evi- as a rebuttal of Hittson’s Doc. at 63. for which it was ad- purpose dence—the attempts Hittson now to convert these Hittson claims that “Dr. Storms’s mitted. isolated, “power- into equivocal statements testimony absolutely devastating to was mitigating ful evidence” that was subse- ... that Mr. Hittson Mr. Hittson’s defense by Dr. quently “dismantle^]” Storms’s remorseful, burdened and ashamed.” Br. at 30. testimony. Appellee Hittson argu- Appellee Br. at 26-27. This evident, had a though, the defense As is strength of the ment overstates both the and, accordingly, for remorse weak case ability of Dr. “remorse” evidence and it. developing much time spend that evidence. did not testimony Storms’s to rebut Likewise, jurors, presume that conscious of urging ‘‘de- 28. "We to find *25 task, closely partic- gravity attend the mind,” of their Attorney ex- pravity of the District language instructions ular of the trial court’s plained, "you the dismember- can consider understand, case and strive to in criminal ment, you you decapitation, can consider the of, and follow the instructions make sense they the can the fact that went to consider Olano, given v. them.” United States House, you Waffle can consider the fact that 725, 740, 113 S.Ct. 123 L.Ed.2d place.” body all over the the was strewn (alteration (1993) quotation marks 74-11, Doc. at 6. omitted). Instead, two-day they spent penalty hillbilly the beck as a and an asshole and could phase trying prove regret murdering to that Hittson had also him. evil, by controlling been overborne embellishment, Stripped of Dr. Storms’s afterthought Remorse was an
Vollmer.29 testimony suggested that Hittson disliked so, if strategy, to the main even Dr. Utterbeck. damning As as Hittson now perfunctory Storms had dismantled their it, tries to make we skeptical are as to remorse, attempts impact to show of whether this truly information was detri- testimony jury’s his on the death sentence mental.30 Certainly, evidence that Hittson deliberations still would not have amount- called Utterbeck a hillbilly and an asshole McNeil, Randolph ed to much. Cf. after the prejudicial murder seems when (11th Cir.2009) (per F.3d cu- But, context, considered in isolation. in if riam) (rejecting petitioner’s argu- a habeas Utterbeck, Hittson had been fond of ment that an isolated statement that he willingness to murder him on command lacked remorse had a substantial effect on would have made culpable, Hittson more sentence, jury’s death where there was not less. Since the State never identified an abundance of evidence support murder, a concrete motive for the Hitt- aggravating by jury). factors relied on son’s statements at provide least some al- (albeit one) ternative a weak to the infer- testimony
But Dr. Storms’s did not nec- ence that the murder was nothing more essarily rebut the little evidence re- than a act senseless of violence. morse that the defense mustered. Cer- tainly, unflattering description of fact, in very appeal, this his victim was illustrative of his indiscre- maintains that his trial counsel failed to (and tion perhaps his dim-wittedness that fulfill their Sixth duty Amendment because to), the defense witnesses testified but present expert didn’t testimony of his these bare statements did not convert that, mental testimony had it condition— “brazen, Hittson into a unrepentant man.” been before put jury, have al- would Hittson, See 2012 WL at *39. lowed State to call Dr. Storms in re- simply, regard Put Hittson could Utter- buttal. His state habeas counsel discount- proceed- In Hittson's first state habeas don't know how much the notion of re- ings which played Hittson's Estelle claims were mitigation. morse into the case in —in (lead 75-17, not at issue—Steve Hollman counsel at Doc. at 61-62. trial) engaged following colloquy in the with Likewise, Shurling (appointed by Bill Hittson’s habeas counsel: lawyers) court to advise Hittson’s two trial mitigation characterized trial counsel's strate- Q fact, your theory mitiga- whole [I]n gy "[T]hey trying as follows: were not tion, was, part your theory mitigation bring trying out remorse. What were was, fact, remorseful; that Mr. Hittson ... do is show this is out of character [crime] correct? particular with this defendant....” Doc. 75- [objection overruled] Well, that, know, at 113. A you I don’t know it point seems to me that the that we were 30. We do doubt the reaction one of was, trying to make was that Travis was a attorneys getting Hittson's was like hit in guy pretty impressionable, who was —"It mean, was, the head with a board. I it it was co-defendant, basically away from the just, getting gutted.” it was like was, Doc. pretty guy, awas harmless that he know, lot, but, at 24. While we felt understand distress you just that he drank a attorney an when the hears evidence basically, needy he was sort of a kind of them, keep he tried to from guy, harmless little that visceral re- and that Mr. Vollmer sponse duty operation was the brains of does not absolve this court of its this and basi- cally manipulated rationally doing Travis assess the into some- evidence the full thing that he would have never done. I context of all that was said and done at trial. *26 defense. prejudiced his performance with cient “strategic” concerns trial counsel’s
ed 668, testimony Washington, follows: as Strickland Dr. Storms’s counsel) 80 L.Ed.2d (lead 104 S.Ct. trial con- ] [ Mr. Hollman’s (1984). performance testimo- Under Strickland’s potential Dr. Storms’ cern over unfounded. that his petitioner must show ny exaggerated prong, ... a was objective not concerned about an attorneys’ was conduct “fell below Mr. Hollman i.e., professional assessment it Dr. Storms’ standard reasonableness” — Hittson, only that Dr. feared Mr. but prevailing under “reasonable[ ] was not testify to remarks Mr. would Storms at 104 S.Ct. norms.” Id. professional in- during pre-trial their Hittson made prejudice 2064-65. And under interview, Mr. During that terview. proba- must show “a reasonable prong, he a “hill- to the as referred victim that, bility unprofessional but for counsel’s and, an “as- point, at another billy” errors, would proceeding result of the However, that Mr. Hitt- given shole.” have different.” Id. been a guilty found just had been son at 2068. murder, these remarks horrific offhand rejected Georgia Supreme Court of intro- hardly outweighed the benefits claim. ineffective-assistance Hittson’s psychological evidence. ducing favorable that the unrea- argues Hittson now court (citation omitted). 76-1, at We Doc. The District sonably Strickland. applied underlying this the assertion agree with disagreed, and so do we. murdered, that Hittson argument; given Utterbeck, mutilated, and dismembered A. called a that he later Utterbeck fact trial team consisted of three Hittson’s simply an “asshole” “hillbilly” and was court-appointed lawyers: “Bo” Walter that significant. Hollman, Sammons, and William Steve Therefore, say we cannot erro- first, appointed was Shurling. Sammons testimony of Dr. neous admission Storms’s appointed and Hollman June was jury’s effect on find- had a substantial (the began a later trial few months Hittson committed an “outra- ing that 1993). time, At had February neither horrible, vile, inhu- wantonly geously or through a case to ver- death-penalty tried of mind.” “depravity man” murder with sentencing, and so after the State dict holding to the District Court’s We reverse death its intention to seek the indicated contrary. (in 1992), September the trial penalty VI. appointed Shurling, who had tried a court cases, capital handful of to advise Sam- next claim is that he was de- Shurling appeared in mons and Hollman. to counsel right Sixth Amendment nied his sessions, strategy attended but court and put team on because his trial failed and Hollman did most Sammons his mental expert testimony regarding say important had the final work and during penalty of his phase condition decisions.31 trial. evaluat- Hittson’s defense team had him
To on an ineffective assistance prevail and once psychologist ed twice claim, establish petitioner a habeas must social neuropsychiatrist, performance both his counsel’s prepare a detailed the defi- worker research constitutionally deficient and that it, nothing.” at 28. Shurling ally Doc. put did virtu- 31. As Hollman "Mr. *27 analysis upbringing family dy- jury.” 75-16, of his Doc. at 74. Sammons Prewett, and Hollman inter- hired namics. Sammons also Dr. Michael a clinical psy- lay chologist Macon, (many viewed a number of witnesses of from Georgia. Dr. Prew- ett during penalty phase) twice, whom testified interviewed Hittson in July 1992 January compiled various records from Hitt- and administered a bat- tery psychometric tests, of son’s adolescence and Naval They including service. then-current widely-used traveled to Hittson’s hometown in versions of the Nebras- Wechsler friends, counselors, Intelligence ka Adult family, to interview Scale (“WAIS”) teachers; and Minnesota Multiphasic Hollman Per- traveled to Pensa- (“MMPI”).32 sonality Inventory Dr. Philadelphia cola and Prew- interview sailors ett also Forrestal; reviewed records, Hittson’s school aboard the lawyers and both records, counseling and letters written by spent talking dozens of hours to Hittson. Hittson. Dr. prepare Prewett did not found, experts Because what their report; just discussed his findings with attorneys Hittson’s filed a notice their Sammons and Hollman. intent to raise Hittson’s mental condition Based on Hittson, interviews with Dr. law, at trial. In Georgia accordance with Prewett concluded that “he was a serious required the trial court Hittson to submit alcoholic who suffered from alcoholic to an examination the State’s chosen blackouts,” and “engaged very aggres- expert expert. and the court’s Hittson’s sive behavior” drinking. 74-8, when Doc. eventually trial team put decided not to 38; Doc. at 7. His father was an experts their because felt that alcoholic family dysfunctional, and his was weight overall expert testimony and, result, as a so was Hittson. He had a would hurt Hittson. Hittson claims that hard time maintaining stable relationships; this constitutionally- decision amounted to fact, really “he anything never had re- deficient conduct. We thus examine the sembling a meaningful relationship decision, with attorneys’ starting with their ef- anybody,” including family. Doc. 75- develop mitigating forts to expert testimo- time, at 22. At the same “he was so ny describing and then their ultimate deci- desperate belong place, some that the sion not to use the fruits of their labor. person
first him was nice to he was going to kind of fall in with.” Id. at 24-25. contemplated had also suicide as July (shortly after Sammons an adolescent. appointed), successfully was Sammons pe- titioned the trial court for funds to have Dr. pegged IQ Prewett at 86— Hittson examined a psychologist. Ac- low-average range of intelligence. Sammons, cording to hopeful “[w]e were suggested His MMPI test results a num- it would be determined that Travis ber of possible diagnoses: depression, mentally retarded or that he had some schizophrenia, personality schizoid disor- psychiatric der, sort of disorder, condition that would schizo-typical personality know, truly sympathy, you render personality from and borderline disorder.33 Of (the 32. Dr. by computer questions Prewett also administered the statistically Personal are Checklist, Range Problems Wide traits). Achievement psychological correlated to certain Test, Neuropsychological Luria-Nebraska The disorders listed above are correlated to Test, Battery, Making Test Trail and Bender- score; however, Hittson's raw the results are Gestalt Test. subject interpretation, why which is an case, (in Prewett) expert this Dr. is needed to 33. The MMPI consists of several hundred diagnosis. reach a questions, true-false which are then “scored” *28 by this individual [and] he “felt controlled believed Dr. Prewett possibilities, those very hatred for between intense was alternated Personality Disorder that Borderline worship hero person this versus almost on Hittson’s diagnosis the correct —based relation- times.” Id. at interpersonal history of unstable abuse, ideation, suicidal ships, substance that Hittson Dr. Prewett also believed anger, and efforts controlling his difficulty dam- degree” of brain might have “some to avoid abandonment.34 of a mild concus- the result age possibly — diagnosis, Dr. Prew- Dr. Prew- of this Hittson’s alcohol abuse. On account sion or Hitt- possible attorneys it that hire that was that Hittson’s suggested ett believed ett psychotic Moore, brief experienced neuropsychiatrist have a son could Dr. Norman stress. As by Macon, extreme episodes, triggered to further practiced who also state habeas court: explained to the to evaluate particular, evaluate Hittson —in or of his brain dam- characterlogical the existence extent with severe Individuals stress, again trial team successful- disturbance, age. are under when funds, and in frequently deterio- the court for ly petitioned will their behavior period Hitt- point January that for a brief Dr. Moore examined rate to the fact, time, they may, in be out of of son. reality very poor have touch with any of Dr. Moore did not find evidence capable doing of reality testing. He was pre- he nonetheless damage, brain but that, done that on at perhaps and had observations. pared report a detailed of his one or two occasions. least recounted Hittson’s troubled report 75-18, Dr. could not at 26. Prewett
Doc. childhood, attempts, including suicide experi- Hittson had whether determine father, heavy drinking, an alcoholic and night on of episode psychotic enced Moore ob- dysfunctional family life.35 Dr. the crime: quick temper “has a served that Hittson severely intoxicated on the was
[H]e quickly,” get cools down and “does but have night of the incident. That would always hostile violent when sober but was on, going that so it anything masked was alcohol, li- especially on very violent any to make impossible would have been 75-20, at 39. Dr. Moore also quor.” Doc. happening at determination of what was Hittson, includ- past noted misbehavior moment and time. particular and a ing stealing from his father $1500 Navy. in the burglary arrest while enlisted Id. Forrestal, crime, Hittson said that “ex- Aboard the respect to the Hittson With working he tried to with Vollmer good remorse and disbe- avoid pressed a deal of played games.” “mind something like because Vollmer lief that he could done have rank, murder, higher though, Prior to the he was not Vollmer was this.” Id. Utterbeck, to be a apparently hand-picked Hittson close to nor did he particularly his work crew. Hittson said part ill harbor will towards him— drunk, him try “get would relationship.” But Hittson had Vollmer a “neutral test, Vollmer; pick up him a hooker as a take out “very strange relationship” with solely entry was based on 35. Dr. Moore’s evaluation 34. These characteristics tracked the Personality in the then- noted Borderline Disorder with Hittson. Dr. Moore his interview DSM, edition of the which Dr. Prew- impressed current report, though, "he me in his making diagnosis. See ett relied on in his and I have openness and frankness with his Ass'n, Psych. Diagnostic Am. and Statistical of his to doubt the truthfulness no reason Disorders, (3d at 346-47 Manual of Mental Doc. at 39-40. statements.” ed., ''DSM-III-R”). rev.1987) (hereinafter her,” zapper and use an electric but beck intended to kill the two of them— something that Dr. night Hittson refused. Id. at 38. On the Moore had way no murder, Nonetheless, determining. Dr. Hittson claimed that Vollmer Moore not- ed that if Mr. “[e]ven Vollmer’s belief “filled him with alcohol” before he told him did level, not reach delusional many of the going that Utterbeck was to kill them. Id. so, other criteria present,” were it was deny participation he did not his While opinion “that Mr. Hittson unduly murder, expressed disbelief at influenced Mr. Vollmer.” Id. things he could have done the how he did. *29 discussing findings When the at- with Finally, early February defense torneys, Dr. Moore stated his belief that counsel obtained from funds the court to overtones, worker, Shults, the crime had homosexual al- a Mary hire social to work up profile a though he did not think that Hittson was a of Hittson’s family. Shults homosexual, traveled to Nebraska to family, and he characterized Hittson interview friends, teachers; and “just as mean” attorneys and told his interviewed she jail; Hittson in and she say he much if reviewed some of testify. would as called to the same provided records 75-16, 100,124. Dr. Doc. at Prewett. Her research confirmed much of Hitt- Dr. Moore did not any psy- administer son’s account upbringing. of his There tests; however, chometric based on the history was a of alcohol abuse on both interview, diagnosed he Hittson with alco- sides of family; Hittson’s Hittson’s father Personality holism and Antisocial Disor- was an emotionally alcoholic who had opined “may der. He also that Hittson drunk; abused Hittson when he was Hitt- experienced Psychotic have” Induced Dis- siblings son’s three struggled with alcohol night order on the of the murder. As Dr. dependency; and began Hittson himself explained Moore it: drinking very at a young age —when The central feature of this disorder is a was a teenager, he was twice referred to system develops delusional in a sec- treatment but never went. The Hittson (Mr. Hittson) person ond as a result home had been “chaotic environment” to relationship close person with another grow up visited, in. When Shults (the Vollmer) case, primary Mr. who disrepair, house was in the inside was “ex- already has a psychotic disorder with cluttered, tremely disarray, dirty,” and delusions. part- The same delusions are family and members “looked rather un- ly by persons. shared both The content 75-20, kempt.” Doc. at 6. Shults believed usually delusion is within the parents that Hittson’s provide “failed to possibility, realm of and is often based appropriate clothing clean for themselves past on common experiences of the two children, skills, and their poor'hygiene people. Usually the primary person and failed to teach their children cleanli- (Mr. Vollmer) psychotic with the disor- good ness and hygiene.” Id. at 9-10. der is the dominant one in the relation- Family dynamics paralleled living condi- ship and gradually imposes his or her it, put tions—as family Shults “Hittson’s system passive delusional on the more dysfunctional.” can be described as (Mr. initially healthy person second parents Id. 9. Shults believed Hittson’s Hittson). emotionally neglectful; to be they “were Doc. at 40. Dr. Moore pointed out very providing nurturing ineffective in that, for Hittson to have shared Vollmer’s children, love for of their but psychotic delusion on night the mur- neglected Travis even more than the rest.” der, Vollmer himself would have had to Id. at 10. Because of the lack of affection psychotic home, have had a delusion that Utter- spent a lot of time at a (now (1993) R. 31.4 Unif.Super. Ga. Ct. very attached See and became Mend’s house 31.5). sought response, even took to the State family Rule his Mend’s —he At reports “mom.”36 and re- discovery any expert mother calling the Mend’s “extremely needy, school, Hittson was be allowed expert that its own quested academically”; not emotionally February both Hittson. On evaluate poorly and was performed surprisingly, he him to submit to an the trial court ordered disability. Id. learning to have thought Storms, psycholo- Dr. examination children other teased at 8. And he was The court also employed.37. gist State hygiene and dressed poor he had because Coplin, expert, Dr. Paul appointed its own in “outdated clumsily” “awkwardly and Hittson, pursuant to O.C.G.A. to examine Id. dirty clothing.” often were § Hittson’s trial counsel 17-7-130.1.38 examinations, but upbringing to attend both opinion, permitted In Shults’s ability appro- disrupt to form ... his court cautioned them not to “hampered appropri- and interact relationships interviews, priate right would lose the else led him to “devel- society” and ately with The court experts. their own present *30 ... attention and seeking of op[ pattern a] sides could talk to Dr. also stated that both 10, Neither Id. at 11. love from others.” Coplin before trial. attorneys believed nor Shults Coplin independently Drs. Storms Hitt- would excuse this information Hittson over the course interviewed murder, but in the participation son’s attended most days.39 next few Sammons explain at least “some of it would hoped observed of Dr. Storms’s interview—he mold Travis Hitt- that went to the forces did not interfere —but and took notes but might “how he be possibly show son” attorneys attended Dr. none of Hittson’s being ... over- vulnerable more bit to inter- Coplin’s interview. addition the will of Mr. Vollmer.”
whelmed Hittson, viewing both doctors administered 75-17, at 46. Doc. (including of tests psychometric a handful MMPI) and reviewed some WAIS 2. limited information on Hittson’s back- 5, 1993, the defense team February On They pre- each ground and the crime.40 intent to use Hitt- filed a notice of their stating findings. their pared report as a insanity incompetence or mental son’s reports contained much of the same if required wanted defense—as Hittson did not background at trial. information. any experts of their option using friend’s mother— n testify at the trial.” ine the defendant and to 36. Evie Fletcher —the Mrs. § during penalty phase O.C.G.A. 17-7-130.1. to this testified trial. Hittson's Friday, Coplin 39. interviewed Hittson on Dr. State, 12; February Dr. Storms interviewed him on generally 256 Ga. 37. Motes See (1987) (“[I]f February Sunday, February Saturday, 13 and a de- 353 S.E.2d (which story Jury trial to a 14. selection Hittson's wants to tell fendant his 25) February began on Tues- expert, commenced on through of an the state the mouth day, February equal opportunity tell an should have story through expert, and ... the mouth of an WAIS, MMPI, 40. Dr. Storms administered possess practically this the state could not Test, Making and Trail Rorschach Inkblot expert gained opportunity unless their access WAIS, Coplin Test. Dr. administered defendant.”). to the Test, MMPI, Adult Sentence Bender-Gestalt Test, Fig- Completion Human insanity Draw-A-Person defense is 38. "When notice of an Test, filed, Depression In- Drawing and Beck appoint ure at least one court shall ventory. psychiatrist psychologist to exam- or licensed relationship parents; depression. have a close with his He seemingly has been one alcoholic; unquestioningly go his father was an he started along with others school; drinking high perceived and he had con- who are to have person- more he, power however, al templated reported has, suicide. Dr. Storms than times, out, vague especially that Hittson was con- acted “somewhat when he has been cerning drinking. relationship his with Mr. Vollmer” point but at one stated that “Vollmer ‘con- ” me to be protégé.’ sidered his Doc. He tends to problems by solve “trial and report at 18. Dr. Storms’s included Hitt- error” and tends to not think through son’s characterization of Utterbeck —as a the ramifications of his actions before he “hillbilly” and an “asshole”—but noted usually acts.He has enough psy- apparent “there was no feeling intense one chological resources to control and di- way or the other between Mr. Hittson and actions; however, rect his under ex- alleged victim.” Id. Dr. Storms did not traordinary circumstances, his controls murder, find motive for the other than may falter. telling
Vollmer’s statements Hittson that Id. at 20-21. Dr. Storms did not find going Utterbeck was to kill them. When anything that impaired would have Hitt- just he asked Hittson how he felt before he ability son’s distinguish right from Utterbeck, killed Hittson indicated “that wrong night on the of the murder. He he was afraid” and “that he was not think- noted that Hittson was drunk that night, ing.” Id. at 21. and opined that alcohol tends to exacer- style”
Dr. bate Hittson’s “natural IQ “act[ing] Storms scored Hittson’s *31 placing him before he thinks.” squarely average range, in the Id.
and he found no evidence of damage. brain Storms, Coplin Like Dr. Dr. found Hitt- Dr. Storms noted that the MMPI scores (93) IQ son’s to be average and did not indicated that “Hittson attempting was to find evidence of brain damage. Cop- Dr. unconsciously exaggerate psychological his lin’s test results showed Hittson to be problems,”41 but he nonetheless believed passive-dependent, depressed, anxious, the test results fit impres- with his intrapunitive (“blaming himself for all sions from the interview: situation”). problems in his life basically has passive-
[Hittson]
led a
had elevated MMPI scores on several
dependent
style overlayed
life
on
including
mild
the “Psychopathic De-
scales42—
validity
41. The MMPI has
imagined
may
built-in
tests in the
real and
threat[s]. He
antic-
questions
designed
form of
ipate problems
that are
to ferret
they
before
occur and over-
may
trying
exagger-
out individuals who
be
to
symptoms
react to minor stress. Somatic
common,
problems.
ate or minimize their
vague complaints
are
involve
tiredness, bored[om],
insomnia,
fatigue,
given
response
42. The true-false answers
to
physiological
Depres-
and other
features.
questions
MMPI
correlate to numerical scores
may
report feeling
sion is evident. He
not
on one or more of ten MMPI clinical scales.
especially
happy
symp-
sad or
but shows
scale,
given
Elevated scores on a
or combina-
depression including
toms of clinical
slow
scores,
statistically
tions of
are
correlated to
personal tempo,
speech,
slowed
and retard-
personality
personality
certain
traits or
disor-
thought processes.
pessimistic
ed
He is
psychometrician
analyzed
ders.
who
general
spe-
about the world in
and more
(as part
Coplin’s
Hittson's MMPI scores
of Dr.
cifically
overcoming
about the likelihood of
examination)
profile
described Hittson’s score
problems.
may
broo[d]
He
and rumi-
as follows:
problems
nate about his
much of the time.
anxious,
jumpy.
Although
strong
tends to
[H]e
be
tense and
he has a
need for achieve-
excessively
He
recognition
accomplishments,
worries
and is vulnerable to
ment and
Later,
pro-
during
ment.
the state
did not di-
Coplin
Dr.
scale43—but
viant”
his fear
ceedings,
explained
disorders
Sammons
any personality
agnose him with
symp-
testify
Travis
“any psychiatric
would
Moore]
find
“that [Dr.
or otherwise
ren-
history
mean,
just
that would
this
psychiatric
just
and that he
did
toms or
charges
for the
responsible
him not
at 101.
der
is mean.” Doc.
because he
70-5, at 16. He did
Moore,
him.” Doc.
against
to Dr.
talking
after
Apparently,
an alcohol-
probably
Hittson was
note that
put
should
on
did not think
Sammons
ic.
“I was scared
health evidence:
mental
testimony would
to death that Dr. Moore’s
to the
remained unknown
findings
These
in,
testify
that Dr.
would
come
Prewett
phase of the
guilt
defense team when
Moore,
Dr.
that he had a consultation with
February
1993. The
began
trial
been
that Dr. Moore would have
to dis-
require
parties
not
court did
called,
and he
psychiatrist,
and he was our
trial,
findings before
experts’
close their
just
have
that Travis was
would
testified
Coplin’s
did not disclose Dr.
and the court
think that
at 102. “I didn’t
mean.” Id.
yet
the defense had
to
findings, because
anything
doing
worth
to take
on evidence
there was
definitively
putting
commit to
put
putting,
having
condition.
Sam-
the risk of
the State
of Hittson’s mental
While
interview,
Dr.
testify
attended
Storms’s
on the stand to
psychiatrist
mons had
our
privy
profes-
to Dr. Storms’s
just
he was
mean.”
Id. at 108.
our client was
attor-
opinion. None of Hittson’s
sional
Dr.
Hollman was less troubled
While
(which
neys
Coplin’s
attended Dr.
interview
testimony
presum-
possible
Moore’s
trial.
Coplin
talk to Dr.
before
tried to
Dr.
ably
why they
proffered
still
explains
testimony), he still felt that Dr.
Prewett’s
team waited to commit
The defense
very
findings
helpful
Moore’s
were not
action until the start of the
a course of
theory,
mitigation
their
and he wanted
no
phase
could wait
penalty
—when
having
testify
Dr. Moore
before the
avoid
Following
parties’ opening
longer.
jury,
possible.
if
statements,
they proffered Dr. Prewett’s
if
court
let
testimony to see
would
ver-
gave
After Dr. Prewett
a condensed
findings
of his
without
testify
him
some
*32
testimony
jury’s
sion of his
outside
the door to the State’s introduc-
opening
in a
presence,
engaged
Hittson’s counsel
Coplin
tion of Drs.
and Storms.
Dis-
lengthy colloquy with the court and
ability to
Attorney regarding
trict
their
anything from Dr.
They
present
did not
fact,
or all of Dr. Prewett’s find-
Moore;
present
that the State
some
appears
it
allowing
from Drs.
ings
Dr.
involve-
without
rebuttal
was never aware of
Moore’s
70-5,
guilty
of his
Doc.
at 14.
he feels
when he falls short
goals. He tends to be rather
indecisive
in the state
feelings
inadequacy,
43. Sammons later testified
habeas
harbors
inse-
and
curity,
inferiority.
intrapunitive,
Psycho-
proceedings
and
He is
that Hittson’s elevated
blaming
problems
him,
for all
in his life
himself
pathic
but neither
Deviant score worried
rigid
thinking
He is
in his
and
situation.
party presented
court to
evidence in the state
per-
problem solving
meticulous and
and
explain
Psychopathic
what an elevated
Devi-
daily
He tends to
fectionistic in
activities.
Cullen
ant score is understood to mean. Cf.
passive-dependent in
relation-
be rather
his
Pinholster,
-,
-U.S.
capac-
ships
people.
with
He has the
other
(“[RJeview
(2011).
what psychological evaluations taken together Coplin’s report cautioning sides Dr. Hitt- — well, very, they were were unfavorable.” that, “I attorneys son’s don’t think are /all 75-18, Doc. at 91. But later he stated going going to find that that’s to be for the that, call, had it been his might he have of Mr. Hittson.” Doc. benefit because, risked testimony the rebuttal court required And the the State to turn experience, preferred put on all report. over Dr. Storms’s Trial counsel the evidence he has at his disposal and let thirty-minute then had a recess to review jury it Shurling sort out. was reports present Prewett still —Dr. decisionmaker, primary though, and not- read the reports, also but did not withstanding his put inclination to on all having in-depth recall an discussion with evidence, available he apparently did not attorneys. object to Sammons’s and Hollman’s deci- Upon seeing the findings, doctors’ Sam- sion to forego expert testimony. mons and Hollman were convinced that Following their expert review of the re- they might gain
whatever benefit from ports, proffered trial counsel Shults’s testi- having testify Dr. would Prewett be out- mony again to see if could have her — weighed by experts’ the other findings. testify triggering without rebuttal from particular, being Sammons recalled wor- Coplin. They Drs. Storms or again struck Coplin’s ried Dr. MMPI about test results out. The court made it if they clear that showing Hittson to have an Psy- elevated Shults, put on then the State could call its words, chopathic Deviant score. In his “I experts own mental health to not know, jury you felt like if the heard'that — testimony, rebut Shults’s but also to state you photographs, you look at the look at their own conclusions based on their inde- crime, hears that he is elevat- pendent evaluation of Hittson. being ed on a scale for a psychopathic Faced with an all-or-nothing proposition, deviant, know, you my feeling it was forego defense decided to testi- expert that is what would remember.” Doc. mony just lay stick with their wit- 75-17, at 14. Sammons was also worried caution, they nesses. In an abundance of Coplin because Dr. did not find evi- court, even asked the up lay we put “[i]f damage dence of brain conflicted —which *33 testify witnesses to about char- (of [Hittson’s] findings with Dr. Prewett’s the four acter, you put up Coplin won’t let them Hittson, doctors that examined Dr. Prew- and replied Storms?” To which the court only ett was the one that any found indica- 74-8, “Right.” Doc. at 77. recounted tion of As damage). brain Hollman likewise earlier, twenty lay the defense team’s felt that the wit- psychological balance of the nesses that Hittson testimony pretty would not benefit testified was a Hittson: “we very good guy brightest was not the were concerned that the State and he and —he Court’s, lot, pretty the that is drank a he was much harm- Dr. and Dr. but Storms[’s] Coplin’s opinions of im- particularly Mr. Hittson’s mental less—and Hittson was And, state very pressionable emotionally needy. would have been difficult for us and detail, to overcome and poten- lay would have been as in discussed one witness tes- exaggerated was and unfound- mony been” re- also “might have Hittson tified that murder, Moreover, “any led to basis the which Id. at 39. about ed.” morseful Hittson testimony that “lay” and Ms. withholding Dr. Storms’s for Prewett [Dr. an “hillbilly”. and “as- called Utterbeck when Dr. Storms re- disappeared Shults] interview. during his shole” ‘hillbilly’ ‘asshole’] counted [Hittson’s at Id. 39. statements....” brief rebuttal Following Dr. Storms’s try trial team did not testimony, Hittson’s relief, the Butts denying In put in to their case chief re-open to that Hittson County Superior Court held the fact that at least despite experts, their attorneys’ con- that his had failed show testimony they hoped the some of “objective below the standard duct fell slipped had now out. keep from the by required the Sixth reasonableness” testimony why Dr. Storms’s asked When Amendment, and, alternative, the calculus, their Sammons change did not by the prejudiced Hittson had not been still worried about pointed out that was i.e., he failed to complained conduct — —of testimony. Dr. specter of the Moore’s prongs. establish either of Strickland’s Likewise, value” Hollman “didn’t see the Superior found the defense Court testify Dr. having Dr. Prewett after attorneys’ assessment of the mental health that, that point, conceded “at Storms but to be reasonable: evidence really of us knew what to I’m not sure forego counsel’s decision to men- [T]rial 75-17, at 62. do.” Doc. tal health evidence was reasonable based [solely] upon the fear that Dr. Moore might testify.... petition, first state habeas to ren- claimed that his trial counsel failed assistance because did der effective [Moreover], fight of the contradictions during or Ms. not call Dr. Prewett Shults testimony to Dr. which are Prewett’s phase after Dr. Storms penalty
the —even Coplin presented reports evidentiary hearing, testified. After Storms, possible negative inferences claim, arguing on this Hittson elaborated psycho- drawn from the which could be that “counsel’s post-hearing in his brief logical reports, as well as the conclusions evidence psychological decision to withhold Hitt- reports concerning drawn phase of trial was un- during penalty crime, responsibility for the son’s informed,” therefore, definition, —and concludes that it was reasonable “inexplica- strategic counsel —because to conclude that for trial counsel bly Coplin prior failed to interview Dr. reports Coplin were unfa- Storms 76-1, at 34. In the alter- trial.” Doc. trial deci- vorable. counsel’s [Therefore] native, that, if “[e]ven Hittson contended present testimony of Dr. sion not investigation could be said to be rea- Shults, Prewett and Ms. which ... reason purported sonable [counsel's based on the aforementioned reasonable unrea- withholding the evidence” was conclusion was not unreasonable. thirty spent sonable because (citation omitted). Doc. reviewing Coplin’s minutes Drs. testified, Even after Dr. the court Storms reports leading to “a non-stra- Storms’s — enough evidence believed unfavorable judgment.” tegie rush to Id. 36-37. “hillbilly” and remained —unrelated to the *34 decision-making,” Because of such “blind counsel’s support “asshole” statements —to “Dr. recognize Cop- counsel failed to And the experts. decision not to call their mostly and their report positive,” lin’s was judg- “uninformed court brushed aside the potential “concern Dr. Storms’s testi- over because, in argument ment” the court’s Court found no merit to arguments his view, thirty minutes was sufficient time to accordingly denied a CPC. digest Coplin’s reports, Drs. Storms’s In his federal habeas petition, Hittson reports lengthy (together “as the are not [ contended that the state courts unreason- ],
they pages) Cop- totaled sixteen and Dr. ably applied they Strickland when found a report summary lin’s contains which the defense team’s assessment to be rea- possible would make it to determine the circumstances, “In sonable: these counsel testimony pe- substance within that could not possibly make an informed deci- riod of time.” Id. at 17. sion to psychiatric evidence”; withhold alternative, that, In the the court held their rush during recess, “[i]n a 30 minute even if trial counsel had been constitution- lawyers the reports, misread the overlook- deficient, ally expert testimony did not ing material, helpful and misinterpreting probability create reasonable of a differ- irrelevant material as harmful.” Am. Pet. ent result: Corpus, Writ Habeas ECF no. at adduced, of all light the evidence [I]n 48. The District Court evaluated the ex- committed, including grue- the crime perts’ findings agreed with the Butts crime, some nature of that Petitioner’s County Superior Court’s reasons for hold- characterization of the victim after the ing that Hittson’s counsel acted reason- crime, mitigation evidence which was ably going as far as to note that “trial — actually presented, and un- possibly counsel likely more would have been inef- psychological testimony favorable which if they opened fective the door to the Prewett’s,44 only includes not Cop- [Drs. damaging testimony Coplin, of Dr. Dr. lin’s, findings], and Storms’s the pos- but Storms, and Dr. Moore,” “regardless of — Moore, sibility of Dr. the defense’s own mitigation strategy capital defense expert, testifying “just that Travis was choose, lawyers they are often if damned mean,” the Court does not believe there do, if they and damned don’t when to be a probability reasonable that the use, use, decide to or not mental jury would have returned a sen- with Hittson, health testimony.” 2012 WL tence of life had Ms. Shults and Dr. omitted). (quotation *48 marks presented Prewett been penalty phase. B. (citations omitted). Id. at 21 Court, Like the District we review applied Georgia to the Supreme rejection the state courts’ of Hittson’s inef cause, probable Court for certificate of through fectiveness claim the lens of AED- claiming error in Superior ap- Court’s and, PA accordingly, look to whether plication of both prongs. Strickland He Georgia Supreme Court had a reason thirty maintained that minutes was able basis in the record conclude that enough attorneys time for his to assess the claim Hittson’s ineffective-assistance and, in reports judgment their rush to meritless. (which they manufactured failing to adjudi- AEDPA of a review state court’s trial), Coplin “[t]hey interview Dr. before especially cation of a Strickland claim is an helpful reports overlooked material misinterpreted peti- irrelevant onerous standard for federal habeas material as harmful.” Doc. Supreme begin 26. The tioner to overcome. with We Strick- pointed diagnosis 44. The court Personality out that some of Dr. line Disorder and his testimony opinion impul- Prewett’s could have worked that Hittson was violent and against e.g., the Border- sive. interests — *35 1248 at-, Richter, at which, 131 S.Ct. 788. in stak- 562 U.S. prong, performance
land’s ap that a state court’s constitutionally “[establishing But for the standard ing out unreasonable that of Strickland was plication demands representation, defective 2254(d) § to trial is all the more difficult. deference under give considerable courts Richter, 562 U.S. See The standards created Strickland judgment. counsel’s (“Unlike 2254(d) deferential, a later at-, highly § 788 131 S.Ct. at are both attorney tandem, observed review is reviewing apply the two court, when (citations materials knew of proceedings, quotation Id. doubly relevant so.” omitted). record, and interacted with not question “The is outside marks counsel, client, opposing with the state with a federal court believes whether easy “all it would be judge.”). Because under the Strickland too court’s determination court, defense examining counsel’s that for a was-incorrect but whether standard unsuccessful, to con- proved it after has was unreasonable —a sub determination act or omission clude that a Knowles v. particular stantially higher threshold.” 111, 123, ... a court must counsel was unreasonable 129 Mirzayance, 556 U.S. S.Ct. (2009) that coun- indulge strong presumption (quota a L.Ed.2d 251 173 range omitted). the wide “any conduct falls within sel’s If there is rea tion marks assistance.” professional argument reasonable that counsel satisfied sonable Strickland, at standard,” at 104 S.Ct. 466 U.S. a then Strickland’s deferential insulates all but presumption This 2065. may court not disturb a state-court federal that coun- Richter, that are “so serious those errors denying the claim. decision functioning as the ‘counsel’ sel was not at-, at 788. U.S. 131 S.Ct. by the the defendant Sixth guaranteed satis- Hittson has come nowhere close to at at
Amendment.” Id. S.Ct. fying this combined Strickland —AEDPA best, has standard. At demonstrated attorneys tough faced a choice— that his attorney an To show expert had to let the hear all the discharge his Sixth Amendment failed to and, testimony or none of it based on their that the duty, petitioner must establish evidence, they decided “amounted to incom assessment of attorney’s conduct good. more harm than ‘prevailing professional under that this would do petence Richter, -, showing enough at to establish norms.’” 562 U.S. Such Strickland, (quoting application at under a de novo S.Ct. ineffectiveness 2066) (emphasis add justification less of Strickland —much ed). nothing test has Georgia high “The court’s decision upsetting [Strickland] lawyers 2254(d)(1). have with what the best would § do under even what most done. Nor is the test expert evidence. We need not rehash the have done.” v. good lawyers would White say It suffices to what should be evident: (11th 1218, 1220 Singletary, 972 F.2d Cir. findings bag a mixed experts’ The were 1992). petitioner must establish “[A] (even “hillbilly” and “asshole” after competent counsel would have taken no in) came of what statements —some counsel did take.” the action good have been for Hitt- say had to would States, v. 218 F.3d Chandler United son, been and some would have bad. banc) (11th Cir.2000) (en (emphasis findings judgment team’s that the defense added). mitigating is aggravating more than were decision Thus, precisely type game-time under de novo “[e]ven Monday- from review, that Strickland insulates judging counsel’s the standard for morning quarterbacking. See Waters one.” representation is most deferential *36 1249 (11th Cir.1995) Thomas, 1506, 1512 so, 46 F.3d Even judg team reserved (en banc) (“Which witnesses, call, any, if to until they ment after had access to Drs. them, epitome call of a and when is the to Coplin’s and reports Storms’s and after decision, it one that we strategic and is will the court that ruled Dr. Prewett’s or Ms. seldom, ever, guess.”). if second testimony Shults’s would allow the state to Coplin call Drs. or Storms rebuttal.
Hittson tries to avoid the broad defer- Hittson’s thirty contention that minutes judg- ence owed to defense counsel’s best not enough was time for three by arguing attorneys ment that their “decision” was just guesswork, fully psychologist because failed to and a to digest eight-page two investigate experts’ findings. the other reports is little more than wishful thinki support The does not argu- record this ng.45 The trial already team was familiar First, even considering ment. without with psychological profile from findings, Drs. and Coplin’s Storms’s trial their discussions with Drs. Prewett and enough forego counsel had reason to Dr. Moore, them, judge and the trial told point testimony solely Prewett’s based on the blank, “I y’all don’t think are going to find (and jury) risk that the State then the Coplin’s report that going [Dr. to be for is] hear from A would Dr. Moore. reasonable 74-8, the benefit of Mr. Hittson.” Doc. at attorney concluded, could have as Sam- said, just 47. As we have their assessment did, mons that “there anything [not] was reasonable, of the evidence objectively was doing worth to take the risk of ... having and Hittson nothing has done to overcome put psychiatrist the State our on the stand strong presumption that counsel testify mean,” just to that our client was “made all significant decisions in the exer 75-16, at Doc. 103—not to mention Dr. professional cise of reasonable judgment.” Personality Moore’s Antisocial Disorder di- Strickland, 466 at U.S. 104 S.Ct. agnosis, his observation that Hittson was 2066. “always very hostile and violent on alco-
hol,”
attorneys
That the
might have been
report’s
and the
references to Hitt-
able
burglary
glean
son’s
to
some
arrest and theft from his
information from Dr. Coplin
parents, Doc.
context,
38-39.
before trial is irrelevant.46 For
quibbles
aggrava-
argument
45.
with
Hittson
some of the
the defense team's decision
parts
ting
reports
very
of the
that his trial attor-
was uninformed is fact that the de-
be,
neys highlighted
proceed-
reports
in the state habeas
fense team found the
on the
whole,
words,
ings.
forgets, though,
He
that he
unfavorable.
In other
bears the
argues
proving
attorneys’
attorneys’
burden of
that the
assessment of the
his
incom-
expert
petence;
up
it
evidence was unreasonable because it
is not
counsel
defense
n
uninformed,
proof
every
was
and as
that it
articulate each and
reason
had for
uninformed,
points
single
their
decision made in the
unreasonable
course of an
trial,
Richter,
say,
tautology
Needless to
such
litigated years ago.
assessment.
entire
--,
unpersuasive.
("[Cjourts may
U.S. at
a few
in the
ample support
record
We find
in-
including the murder
topics,
variety of
psychiatric
Vollmer’s
conclusion
ex-wife, Ms. Ward’s
Vollmer’s
vestigation,
not cre-
letters did
report
post-arrest
and
affairs,
recollections
foreign
boyfriend,
of a different
probability
ate
reasonable
Mends,
jokes, and
sports,
times with
good
sepa-
examine this evidence
result. We
to Hittson’s
relevance
chief
poetry. Of
cumulatively.
rately
then
references
are Vollmer’s
Brady claim
A.
in which he
prosecution,
impending
of a con-
materiality
the likelihood
casually
analyzing
dismisses
incompetence and
police
any piece
report
viction because
with
psychiatric
—as
...
my
hometown
“[they’re
necessarily
must
determine
because
evidence—we
judge
my hand
picked
my hand
used it at trial and
with
would have
how Hittson
He also
Doc.
at 8.
jury.”
force” of the
picked
“tendency
weigh
then
actually
wrote,
know
“only
people
two
presented
it would have been
evidence as
I’ve never talked
n.
happened,
We when used this man- tic and Statistical Manual of Mental Disor- ner, report have supported could Hitt- (3d rev.1987) (hereinaf- ders, ed., at 344-46 mitigation theory during son’s the penalty “DSM-III-R”). According ter to the however, phase; it is not the silver bullet DSM-III-R, person a with Antisocial Per- that Hittson tries to make it out to be. Strickler, sonality typically Disorder to “fail[s] con- See at at U.S. S.Ct. (“[The suppressed might repeatedly per- form to social norms and evidence] changed have the outcome of the trial. grounds form[s] antisocial acts that are for that, 50. Hittson claims Personality also with the benefit of Antisocial Disorder. his state report, Vollmer’s his trial counsel would have proceedings Brady related to the (we put experts pre- decided to on their own claims, scrap Hittson did not a submit of Prewett) sume that he means Dr. who would Moore, evidence from Drs. Prewett or and explain have then been able to the relevance say neither Hollman nor Sammons could diagnosis light of Vollmer’s in of his assess- psychiatric the added value of Vollmer’s re- give ment of Hittson. We can short shrift to port changed would have their risk calculus just this assertion. As we have in discussed put and led them to on one or all of their detail, Hittson's defense team had a number Thus, experts. materiality we limit our re- of well-founded reasons not to call their ex- psychiatric view to the admission of the re- perts they the least of which was that —not port testimony from Mr. or Dusan Dr. calling would have risked the State Dr. Moore explaining report. Gibson testify diagnosed that he had Hittson with others. Nei- controlling or manipulating ha- arrest, destroying property, as such DSM, nor Dr. Gibson’s report, ther the others, having an ille- stealing, rassing An- person indicate that a with They description also Id. at 342. gal occupation.” general, Personality Disorder and to tisocial aggressive “tend to be irritable adept bending is particular, physical fights and as- Vollmer into get repeatedly The “essential fea- others to his will.51 saults,” promiscuous,” ... are “[t]ypically as “a ture” of the disorder is described about the have no remorse “they generally others; and antisocial be- they pattern irresponsible of their behavior effects i.e., conform to so- a having “fail[ure] hurt or justified feel may even havior” — DSM-III-R, at others,” cial norms.” 342. While have “the mistreated correct) (often might include at- type are this of behavior that others conviction others, nothing there is tempts to control them.” Id. at 342-48. hostile towards indi- report diagnosis in the or the in the state habeas testified Dr. Gibson possessed particu- cates that this Vollmer diagnosis was that a “severe” proceedings the host of traits that among lar attribute pa- indicate “that this typically given to “antisocial.” could be deemed that is of personality a disorder tient has mili- severity preclude further such as submitted an affidavit to the people will know that tary service”—“so County Superior from Dr. Butts something just kidding, this is we’re not Brittain, Jerry neuropsychologist Lee care and needs to be taken that’s serious who, military reviewed Vollmer’s right away.” Doc. along and medical records with the various explained person also that a Dr. Gibson expert of Hittson that were assessments Personality Antisocial Disor- with severe gave Dr. Brittain prepared trial. der, problems. He has adaptability “has following opinion: problems He has interpersonal problems. of Mr. ex- The combination Vollmer’s problems doing He has authority. with tremely high intelligence[52] level of with He’s done ille- supposed what he’s do. Personality sug- an Antisocial Disorder got- for which if he had gal things, things clever, gests very manipulative, so- them he would have been caught doing ten typically phisticated con artist —this rights every- arrested. He violates person gets away who often with their testimony also body.” Id. at 110. This infractions because are smart description of the tracks the DSM-III-R’s enough getting caught, many to avoid (Dr. Gibson did evaluate disorder expense times at the of a weaker code- *41 and, understandably, did not re- Vollmer fendant. signing report call off on the 1991 when he 56-16, forming opinion, at Doc. this in the state habeas
testified 2007 before Dr. Brittain relied on the version court). published in in was print DSM which nearly diag- after Critically lacking any support for the a decade Vollmer Personality nosed with Antisocial Disor- theory propensity that Vollmer had a for lists, diagnostic psychiatric report pegged Vollmer’s DSM as one of the 52. The 51. The disorder, regard for the intelligence "average criteria for the "no Brit- at or above.” Dr. truth, by repeated lying, as indicated use of got presumably tain the idea that Vollmer aliases, personal profit 'conning' or others for intelligence possessed "extremely high” from DSM-III-R, pleasure.” Dusan or at 345. Qualifying Vollmer's Armed Forces Test rely reaching did on this criterion in percentile. were in the 99th scores—which (the diagnosis diagnostic crite- DSM lists ten ria, find four in order of which a doctor must diagnosis). to reach a Ass’n, Psychiatric Q record, Am. And generally der. See is there evidence in the Diagnostic reviewed, Manual of Men- you Statistical of the stuff that that Mr. (4th rev.2000) (here- ed., tal Disorders text conning, Vollmer was cunning and ma- “DSM-IV-TR”). inafter Dr. Brittain cited nipulative? updated version of the DSM the A Yes. Anti-
proposition “[i]ndividuals with Personality frequently social ‘are Disorder Q me, lay What does it tell as a person, manipulative gain deceitful and in order to what does it you mean when have a personal profit pleasure, (e.g., or to obtain severe antisocial personality disorder? ” sex, 56-16, money, power).’ Doc. at 46 A got You’ve someone who essentially 702). (quoting DSM-IV-TR This lan- can, I think for purposes of this guage, equivalent, or its is not in the ver- ease, someone who potentially could be print sion of the in 1991 and DSM very good at controlling manipulat- (the DSM-III-R), Dr. Brittain did not ing you someone else. And had a com- explain whether these traits were common- individuals, bination of two between Mr. ly to be a characteristic of understood with a diagnosis Vollmer of antisocial disorder in 1991 and did not otherwise personality disorder and then Mr. Hitt- attempt expert to establish what an could son, who has been having described as during have testified to Hittson’s 1993 tri- passive, dependent personality, that he al. would be particularly prone to manipu- Hittson also called Dr. Keith Caruso by lation someone bright as and antiso- proceedings the habeas in state court. Dr. cial as Mr. Vollmer has been described. who, psychiatrist Caruso is forensic Doc. 18. Dr. testi- Caruso’s 2007, reviewed report, Vollmer’s vari- mony spilled psychiatric the bounds of the Hittson, expert ous assessments of a tran- report, wandering into experts’ the other script of the penalty phase, variety and a assessments Hittson and evidence that (much of other evidence related to Vollmer already was either before the or was of which was not available to the defense not available to the defense at the time of trial). at the time of The following collo- trial. made attempt no to estab- quy ensued: portion, lish what if any, of Dr. Caruso’s Q Why diagnosis] signifi- is [Vollmer’s testimony his trial pre- counsel could have cant understanding Mr. Hittson’s be- during sented the 1993trial. night havior on the of the offense? question We do not Drs. Brittain’s or Well, considerable, A I think it was but, professional opinions, given Caruso’s there is evidence that [Hittson’s behav- were formed may considerably have ior] been influ- with the benefit of hindsight and evidence Vollmer, enced Mr. that Mr. Hitt- that was not available the defense team son’s behavior a passive, dependent as trial, during Hittson’s we do not find their individual, would, potentially he opinions particularly helpful in weighing very easily would be influenced some- *42 disorder, impact diagnosis the on personality one with antisocial of Vollmer’s particularly jury’s penalty-phase someone who can con- the deliberations dur- be bottom, ning manipulative. ing trial.53 At Hitt- Hittson’s 1993 court, trial), pre- court-appointed 53. expert In the state habeas the State from expert testimony sented to counter Drs. Brit- diagnosed “because Vollmer was with an an- explanations tain's and Caruso’s of Vollmer’s disorder, personality tisocial what of im- kind (the diagnosis. Coplin The State asked Dr. joked having about killed Utterbeck. to show often evidence produced not son has called an could have testified that Vollmer shipmates trial counsel Other that his would have testify at trial who of dead expert getting out advice on rid doled Navy said, psychiatric on the based And, course, jury of the heard bodies. propensity or had that Vollmer report, crime, version of the Hittson’s uncontested controlling others. for aptitude played a central role. in which Vollmer tried to rebut of this The State never say, though, that Vollm- not to That is would have been report It never tried to redeem Vollm- psychiatric er’s evidence. assessment fact, Bo Sammons’s jury’s eyes; irrelevant. in the District er in the in explained he the which report, Attorney made clear that Vollmer would hearing, is on firmer foot- evidentiary state in the prosecuted for his role separately be view, diagnosis would have ing. In his crime. “a real that was helped them show Vollmer by light presented of the evidence “amoral about the guy” he was bad —that defense, diagnosis would have Vollmer’s on other things did had effect something on that was simply put label 56-10, at 80. The re- people.” Doc. that was not abundantly something DSM-III-R, itself, and Dr. Gib- port clear— Certainly, a really controversy. medical diagnosis before explanation of the son’s (which effec- diagnosis carry weight court can more with a the state habeas DSM-III-R) all a recitation of the tively lay testimony. report than And a jury had proposition Vollmer support by a neutral prepared before the crime for his actions as affect “no remorse credibility would have bolstered the expert 4; see DSM- Doc. also others.” lay witnesses whose view of Vollmer (Individuals with Antisocial III-R at 342 might have skewed their knowl- been Personality “generally Disorder have no edge complicity of his in the crime. But of their behavior remorse about the effects un- point being proven is both where others.”). supported by the evi- amply contested and aspect that this of Vollmer’s Accepting dence, hardly say can that additional we bearing character had some on Hittson’s that would reinforce the ob- evidence sentence, amoral the idea that Vollmer had puts of evidence that type vious is the certainly tendencies would antisocial required as for light, case a whole new jury. to Hittson’s have come as news Brady. relief under shipmates testify that defense team had if importantly, though, More even violent, had a fixation with Vollmer was an otherwise report would have cemented murder, and liked to tote around a bullet- shaky proposition, proving Vollmer’s bad shotgun. They proof vest and sawed-off securing lynchpin character was not the two written Vollmer submitted letters Hittson. consid- a life sentence for When illegal and bragged in which he about his isolation, Vollmer’s character ered They escapades. had a witness amoral i.e., punishment; to Hittson’s irrelevant in which part read of one of those letters guy” making out to “a real bad Vollmer be to mur- plot described a detailed Vollmer eyes did not automatical- friends der someone. One Vollmer’s that, murder, culpable make less for his own ly after the Vollmer testified behavior, law. Antiso- trouble with the pact had on ac- tive [Hittson’s] would that have person sociopath, you It’s a Coplin cial is a know. night of the crime?” Dr. tions on the concept repetitively no of the law.” who has responded, "I don't think it would have 56-12, any, prone repeti- Doc. other than [Vollmer is] *43 already put it in the state were well-attested-to. And choices. As Hollman in- reinforcing whatever effect this “new” habeas court: formation would have regarding say that it was our mission to I wouldn’t bad character would Vollmer’s have do everything possibly that we could do minimally improved the chances that the I think make look bad. [Vollmer] jury would believe that Vollmer controlled trying we were to do is show that what Thus, night Hittson on the of the crime. in that he was the lead actor this terri- the state court could reasonably have con- crime and that he was the one who ble report cluded that Vollmer’s was not mate- in actually primary was the mover the Brady. rial under murder and the dismemberment. effect, 56-9, Doc. at 125. In the defense B. attempts prove team’s that Hittson was psychiatric Like the report, a pretty good guy a and Vollmer was post-arrest letters cumula Vollmer’s are a to an really guy bad were means end—a already tive of evidence that was before jury the to infer that
way
prodding
of
jury
only indirectly
and are
related
not
on his own volition
Hittson had
acted
Hittson’s sentence.
by
overborne
his evil
but had instead been
co-defendant. While this was
sensible
begin
We
with how the letters would
strategy,
question
jury
there is no
that the
have been used
Hittson’s trial counsel.
accepted
portrayal
could have
their
asked,
Hollman was
in the state
When
Vollmer and still concluded
hearing, if
post-arrest
collateral
letters
responsible for
own actions. After
was
trial,
helpful at
would have been
he candid-
all,
bat,
swinging
Hittson confessed to
ly replied, “[h]onestly,
they
I don’t know if
pulling
trigger,
cutting up
Utter- would have or not. I’ve read them. There
corpse.
beck’s
are matters of interest that are contained
in these
I don’t
if
letters.
know
Brady’s materiality require
While
56-9, at
would or wouldn’t have.” Doc.
sufficiency
“is not a
of the evidence
ment
that he
have
He conceded
would
test,”
i.e.,
simply
look to
courts do
—
certain
liked
have heard
enough
whether there is still
evidence to
letters,
from the
passages
because
support
the result —a defendant must
jury’s
“impacted
would have
view
show “that
the favorable evidence could
negative way,”
Mr.
in a
but still
Vollmer
reasonably
put
be taken to
the whole case
“I
it
explained,
say
wouldn’t
that was our
in
as to
light
such
different
undermine
everything
mission to do
that we could
Kyles,
confidence
the verdict.”
514 U.S.
possibly do to make
look
[Vollmer]
Doc. at 8. this maniacal veiled references to the crime: arrogance rant reflects or delusions of letters, pre-arrest up These fuckers couldn’t come with a grandeur. Vollmer’s had, “drugs” “cult reli- brag- which the contained similar better motive than Keystone fuckin gadocio. gion”? They’re wrote that he was one of Vollmer world; reading the three “Bad in the he I could sit on the shitter Cops. Asses” life; paper up and come with more and fight lost one toted are a lot of pistol shotgun gang better motives.... There and sawed-off unanswered, I’m questions left fights; tight he was “in with the Outlaws *45 55]) mystery. They can as- so I to only key going to the bailed avoid overboard people two guess, night. sume and but on a moonless I Reasons could happened and I’ve actually you time, know what never have guys told at the do any cops to never talked made you understand. confession, it like so looks the whole vague, Id. at 12. ramblings While these till gonna August have wait
world[’]s could have been used the State to un- only if I speak, to hear me feel like mitigation dercut Hittson’s theory they— it. hint that Hittson had a reason for disliking 56-15, Apart exhibiting Doc. at 17. from Vollmer, that the confession was not en- aggrandizing style, more of this Vollmer’s true, tirely and that Vollmer was scared cryptic paragraph help little to Hitt- does Hittson, enough get so to himself kicked It to corroborate son. does tend Hittson’s Navy. out of the passages, While these like account of the crime—at uncontested least highlights, the ones Hittson leave much to confirms it partic- insofar as Vollmer’s speculation, we cannot entertain Hittson’s it that ipation implies either Vollmer requests meaning that we divine from se- —and or Hittson had some undisclosed motive parts lect considering without also the crime, nothing for the but there is from attempts State’s to do the same. jury which the could have inferred that When read as a whole and considered in strings. pulling Vollmer was Hittson’s light body of evidence before the more, impossible say Without it is jury, bearing the letters have little on their paragraph this somehow advances Hitt- sentencing ultimate task of Hittson. The mitigation theory. son’s might two new letters have added a little fact, parts other of the letters contain jury’s more flavor to the understanding of similarly oblique references to the crime. personality, Vollmer’s but Vollmer was not passages Some of these could be read to on trial. And the handful of references to inculpate Hittson: the crime questions itself raise more than really torqued But the bit with Hittson pur- answers. Given that Hittson did not my gonads why cause it was obvious he strategy during sue “residual doubt” the majorly up did it.... I kinda screwed (and penalty phase argue does not now (the plan recipient) date Ward [to ] that the letters would have enabled him to just him about sent over the so), do anything we do see how the well, I edge. fucking Oh won’t ever supports mitigation letters theo- fucking shed a tear over his twisted love ry sway him on Vollmer held over life. I’m a tad out of shape bent be- night Accordingly, of the murder. the rec- cops cause I heard he what said amply supports ord a conclusion that the me, about and I also heard Mike be- post-arrest letters were not material under really guys. it. That hurt lieved me Brady.
Doc. at 17. C. pressure, I froze under Jo. That’s all I out[54] psychiatric Because neither say. got can Tell Mike I kicked Vollmer’s jailhouse purpose, right report about that. nor his letters had much sentence, need not Things danger were more than a little to do with Hittson’s we [ (remember if, analysis I fights ous before left? rehash the above to see when crime, arrested, being during before 55. A handful of witnesses testified After but that, penalty phase shortly before Hittson and discharged Navy Vollmer was from the arrested, relationship de- Vollmer were their possession marijuana. they got fight. teriorated and into — U.S.-, 132 S.Ct. Ryan, have v. cumulatively, might considered Thaler, (2012), and Trevino v. say that L.Ed.2d It is sufficient the tide. turned — U.S.-, 1911, 185 L.Ed.2d let- post-arrest report psychiatric (2013). for rea- existing decline to do so We have reinforced ters would explain first explained But sons below. We bad character. evidence of Vollmer’s Trevino, and on his relevance of Martinez and Hittson based sentenced rely on why Hittson cannot those choices, nothing find either then and we own *46 procedural to excuse his default. that have cases or the letters would report those choices Hittson show helped A. voluntary than because Vollmer were less him Consid- overpowered psychologically. may A court consider federal does not cast the evidence together, ered procedurally merits of a defaulted light a different as to the case such if can show both petitioner claim sentencing pro- Hittson to a new entitle “prejudice” the default and “cause” for Therefore, we affirm the District ceeding. right. from a violation of his constitutional courts had a holding 72, 84-85, state Court’s Wainwright Sykes, 433 U.S. sup- (1977). to conclude that the 2497, 2505, reasonable basis L.Ed.2d 594 97 S.Ct. 53 under was not material pressed cause, evidence petitioner must ordi To establish Brady. objective narily “demonstrate ‘some factor impeded his external to the defense’
VIII.
properly
claim
in state
effort to raise the
Hall,
claim
us
court.” Ward v.
592 F.3d
1157
requires
Hittson’s final
to
(11th Cir.2010)
Murray v. Carri
grant
(quoting
have
decide whether he should
been
2639, 2645,
er,
478, 488,
ha-
477
106 S.Ct.
to further amend his federal
U.S.
ed leave
(1986)).
397
Before its 2012
four brand-new inef
91 L.Ed.2d
petition
beas
add
Martinez,
Supreme
claims that he did not
decision
Court
fective-assistance
§
long
petitioners
held that
can
any
proceedings,
of his state court
raise
rely
by
on errors made
their state
petition,
§ 2254
or his amend
original
cause.
It is a matter of first
collateral counsel
establish
See
petition.
ed federal
722, 752-
prisoner
Thompson,
that a state
cannot Coleman v.
principles
2546, 2566-67,
time
federal
111 S.Ct.
115 L.Ed.2d
raise claims for the first
in his
(1991).
limited,
Martinez created a
petition.
See
28 U.S.C. 640
habeas
(1)
where,
2254(b)(1)(A).
equitable exception to
§
Hittson does not contest
Coleman
an
requires
prisoner
his “new”
“a State
to raise
that he has failed to exhaust
Instead,
claim
us treat
ineffective-assistance-of-trial-counsel
claims.
he would have
proceeding,”
opposed
in a collateral
as
procedurally
the claims as
defaulted56 and
(2) “appointed counsel
by relying
appeal;57
then
the default
on the
on direct
excuse
proceeding,
collateral
decisions Martinez
in the initial-review
Supreme
recent
Court
law,
dealt with Arizona
which
56. Where a return to state court would be
Martinez
raising ineffec-
petitioner’s
bars criminal defendants from
claims would
futile —because
-
appeal.
tive-assistance claims on direct
clearly
procedural rules—a
be barred
state
at-,
(citing State v.
U.S.
appeal
COA,
§
however,
petition.
his
This is a
sought
expanded
ond amended
of Trevino
as
inquiry,
petitioners
decide the effect
somewhat familiar
asking that we
litigate
new
long
raise and
his
able to claim ineffective
right
on his
have
been
granted
appellate
in the District Court. We
of trial or
counsel to
claims
assistance
expanded his COA to re-
request
procedural
de-
establish cause to excuse
following issue:
appellate
solve the
fault caused
their trial or
Carrier,
Murray
counsel.
v.
See
Hittson should be allowed
Whether
478, 488,
2639, 2645, 91 L.Ed.2d
in-
petition to
amend his federal habeas
(1986).
Supreme
As the
Court has
claims of ineffective assistance
clude
context,
just any
in that
explained
“[n]ot
previously de-
trial counsel which were
deficiency
performance
in counsel’s
will do
in state
through prior
faulted
counsel
...
must have been so inef-
assistance
proceedings
light
the Unit-
to violate the Federal
in fective as
Constitu-
Supreme
ruling
Court’s
ed States
Carpenter,
U.S.
tion.” Edwards
Trevino....
1587, 1591,
146 L.Ed.2d
S.Ct.
issue,
supplemental briefing
on the
(2000) (citation omitted).
While Mar-
Georgia’s require-
Hittson has focused
tinez did not establish
constitutional
raising
ments
ineffective-assistance
right
post-conviction
to counsel
state
that,
appeal. He
claims on direct
asserts
it
proceedings,
adopt
did
constitutional
law,
Georgia
‘meaning-
“there is no
under
standard from Strickland as the standard
*48
litigate
opportunity’
ful
ineffectiveness
governing petitioners’ claims that
their
Br.
10
appeal.”
Supp.
on direct
at
post-conviction counsel’s conduct should
—
Trevino,
U.S.-,
133 S.Ct.
(quoting
procedural
excuse a
default. See Mar-
1044).
1921,
at
185 L.Ed.2d
While
—tinez,
at-,
U.S.
B.
claim,
by
to raise a meritless
deciding not
Martinez,
petitioner
preju-
and a
would also not be
To establish cause under
Hitt-
so.
son must demonstrate that state habeas
diced
his counsel’s failure to do
collateral,
appeal,
procedure
on
direct
"Texas
makes it 'vir-
of trial counsel on
rather than
—
Trevino,
-,
direct,
tually impossible
appellate
ade-
for
counsel to
review.”
U.S. at
quately present
[of
an ineffective assistance
(quoting
at 1918-19
Robinson v.
133 S.Ct.
review,”
trial
on
counsel] claim’
direct
State,
(Tex.Crim.App.
16 S.W.3d
810-11
"Texas courts in effect have directed defen-
2000)).
dants to raise claims of ineffective assistance
claim is
underlying
But the merits of the
U.S.
S.Ct. at 2065-66. To
analysis.
a
of the Strickland
part
presumption,
overcome this
petitioner
unlimited time and the benefit of
With
must
competent
“establish that no
coun
hindsight,
petitioner
up
can come
with
sel would have taken the action that his
inef
potentially
number of
meritorious
counsel did take.” Chandler v. United
fective-assistance
claims that he now States,
(11th
218 F.3d
Cir.
collateral
wishes his
counsel had raised.
2000) (en banc).
However,
petitioner
does not establish
Thus, to show that his habeas counsel
constitutionally
sim
performance
defective
provide
failed to
representation
level of
(a)
ply by showing
potentially
merito
Strickland,
required by
Hittson must show
(b)
claims
collateral
rious
existed
more than the mere fact
failed to
counsel failed to raise those claims. Mur
claims;
potentially
raise
meritorious
ray,
¶ failed to 41. Defense counsel also ob- ¶ 22.... counsel arrived late to Defense ject prosecutor when the referred to and was not Storms’s] interview [Dr. of the victim in an effort to photographs presented pe- Dr. Storms present when jury.... inflame the Ac- titioner the waiver form.... with ¶ object 39. Counsel further failed con- cordingly, defense counsel never ques- to two responses the trial court’s petitioner or advised with sulted with jury during deliber- tions that the asked to the waiver. respect .... ations ¶ 43. Defense counsel also failed ob- (b) Proper to Raise Failure Grounds ject to the trial court’s failure its Trial Challenge Location of sentencing explain instructions to to the jury concept mitigating circum- (2) Trial .... stances ¶ Defense counsel failed to intro- ¶ 44. Defense counsel also failed to ob- duce evidence whatsoever ject sentencing to the court’s instruc- trial.... guilt-innocence phase of that stated that should tions (3) Sentencing “fix” or “recommend” that the death ¶ 27. Counsel failed to introduce rele- penalty imposed. be mitigating evidence at the sentenc- vant (citations omitted). Supe- Doc. 75-13 ing hearing.... allegations rior these into Court formed eight separate ineffective-assistance ¶ only lay called 31. Counsel witnesses claims, and denied all of them. mitigation. point At no did the de- - Rogers Lipps Hittson claims present any testimony by Dr. fense failing to tack on the incompetent were Prewett Ms. Shults.... claims from his second four additional 32_¶ Dr. testified Once Storms however, § petition; amended he has “hillbilly” and “as- [Hittson’s about alleged presump- no facts to overcome the statements, reason for shole”] sole profes- tion that exercised reasonable Dr. Prewett and Ms. off keeping Shults judgment deciding sional which claims *50 evaporated.... the stand to omit. to raise and which claims ¶ pro- 33.... counsel did not [D]efense amend, In his motion to further Hittson to guidance vide clear and assistance following general allegations made the petitioner as to whether he should testi- incompetence: habeas-counsel ultimately him fy, forego and forced to right testify. the exercise of his to pursue failed to habeas counsel [S]tate investigation, result-
obvious avenues ¶ ing in a failure to raise meritorious object 39. Counsel also failed to to the claims. Ineffec- potentially meritorious prosecutor’s closing argument at claims which Mr. Hittson tive Assistance sentencing hearing, prose- in which the and which in and mis- believes are “substantial” engaged improper cutor an grounds petition- to be for relief available to the merit” were available have “some proceedings habeas but er” and “state the litigated supporting state facts each 2(c) words, counsel unreasonable In other post-conviction ground.”62 Rule raise them. pleading’ opposed failed to ‘fact as to “mandate[s] pleading,’
‘notice
as authorized under Fed-
8(a).”
Rule of
eral
Civil Procedure
Borden
represents, upon
counsel
Undersigned
(11th
Allen,
Cir.2011);
646 F.3d
belief,
Hitt-
that Mr.
information
Felix,
644, 655,
Mayle v.
see also
545 U.S.
original
attorneys per-
habeas
son’s
2562, 2570,
Id. at 13 First state habeas counsel also failed to 1. by a neurop- have Mr. Hittson evaluated ineffective-assis first Hittson’s pro- mental sychologist or other health claim is: fessional, tance-of-trial-counsel despite the fact there flags in his back- were numerous red Deprived of the Effec- Mr. Hittson Was that he come from ground indicating had of Counsel under Assistance tive alcoholics, family neglect suffered His Counsel Amendment When Sixth family, and abuse within his tried to Thoroughly Investigate His Failed to teenag- commit suicide seven as a times and Mental Background, Upbringing, er, disability, learning had a and suf- Time and Failed to Secure More Health fered from recurrent blackouts even Investiga- for this From the Trial Court drinking. when he was not tion. omitted). (citation Id. at 28 allegations supported Hittson these with Pet., no. Second Am. Habeas ECF Rogers an affidavit from Ms. and another allegations 14. The related of habeas- capital from defense attor- Mark Olive—a are: counsel ineffectiveness Tallahassee, ney According Florida. from al- state habeas counsel conducted First third-year Rogers, to Ms. she was the a independent investigation into most no associate at Swindler & Berlin when she of Mr. Hittson’s case outside the facts working on Hittson’s case. She started trial record from and direct the available Lipps, was Mr. a senior supervised did First habeas counsel not appeal. from partner, and consulted with staff Georgia but she was where Hittson Resource Center64 places to the Mr. travel “largely develop left to the case on [her] friends, grew up family, or interview Aff., Rogers own.” no. at 2. ECF teachers; they did not neighbors and that, “[t]hough I received She confessed mitigation spe- or investigator hire an very that Mr. Hittson impression had cialist; they have Mr. Hittson did not childhood, I into rough did delve Mr. evaluated; and, psychologically background upbringing to speak mitigation failed to with the wit- any out if there information that find was at trial to see if nesses offered presented should have been mitigating information about Mr. further spe- omitted at trial.” Id. More changed have Hittson would cifically, private she did not “hire a investi- appears result trial. It that first of his gator mitigation specialist,” or a “have Mr. also failed to re- corpus counsel medically or evalu- psychologically Hittson records, medical quest any educational ated,” “travel to Nebraska or Oklahoma regarding or mental health records Mr. family,” “speak talk with Mr. Hittson’s or family. These omissions lay presented with witnesses performance under constitute deficient “travel[ ] Mr. Hittson’s trial.” Id. She did of performance occasions”; the relevant standards Georgia on three or four attorneys trips “spoke at the time those she with two out corpus for habeas attorneys nonprof- with the Georgia son’s current counsel are Resource Center is provides legal representation it that free Georgia Resource Center. indigent Georgia death-row inmates. Hitt- *52 case, Chandler, thoroughly.” attorneys trial on Mr. Hittson’s 218 F.3d at three 1318. Attorney’s to the District “In assessing as well as went the reasonableness of an at- met torney’s to review their file also ... investigation [and] office a court must on these occasions.” with Travis Hittson consider not quantum of evidence counsel, Id. at 2-3. already to known but also whether the known evidence would lead a reason- attempted pro- affidavit “to Mr. Olive’s attorney investigate able to further.” of care description vide a of the standard Wiggins, 539 at at U.S. S.Ct. representing for counsel death-sentenced Georgia post-conviction cases in inmates Aff.,
the mid-1990s.” Olive EOF no. alleged Hittson has that his collateral it up at 3. He summed as follows: investiga- counsel failed to conduct certain tory attorneys steps, explained why, but he has not rep- The standard of care for case, particular competent this a resenting death-sentenced clients attor- is, ney would proceedings steps— and have undertaken those corpus state habeas i.e., mid-1990s, why competent attorney was in the that habeas coun- would have compelled dig deeper been to thorough sel undertake a substantial and into Hitt- background son’s when faced investigation identify in order to all with evi- dence the record. Hittson available claims for relief and all avail- fails to men- tion that Hollman may support evidence which those and Sammons—with able Lipps Rogers whom and enough It not to confine one’s worked on direct claims. appeal all primarily scrutiny investigatory of the trial efforts —undertook record; steps complains in- that Hittson now of. appellate and counsel must Nebraska, Pensacola, They investigate thoroughly, traveled to and vestigate, and is- friends, Philadelphia family, to interview may readily apparent sues which not be counselors, teachers, shipmates, from the record.... and offi- cers; they hired a social worker to travel Id. at 7-8. many Nebraska to interview at Hittson has least set While people up analysis same and work an ana out some substantive facts us to background; they Hitt- and had facts, true, lyze, these if taken as are even by psychologist examined a neu- son and insufficient to establish that his habeas ropsychiatrist. Rogers Lipps and counsel’s conduct fell below Strickland’s Sammons’s and Hollman’s notes from the performance Despite standard. Mr. Ol interviews; they witness had Shults’s re- care,” purported ive’s “standard of we family port background on Hittson’s and duty ex explained have “no absolute Prewett’s, dynamics; had Drs. investigate particular ists to facts or a Storms’s, Moore’s, Coplin’s findings Chandler, certain line of defense.” regarding Hittson’s mental condition. duty F.3d at 1317. has a “[C]ounsel Lipps It would have been reasonable for investigations make reasonable or make a in- Rogers to conclude that additional reasonable that makes particular decision vestigation background into Hittson’s Strickland, investigations unnecessary.” yield anything would not useful to Hitt- (empha S.Ct. added). son’s collateral attack. Even if additional always sis need “[C]ounsel investigation up would have turned new investigate pursuing pursu before or not (even might relevant at evidence have been ing a line of defense. Investigation (Hittson nonexhaustive, trial has not identified such preliminary investigation) evidence), Lipps Rogers could have required reasonably is not for counsel reasonably concluded that did not investigate decline to a line of defense *53 beginning at the inef of a Miranda waiver investigate” to a viable “failure have Hittson’s sec- According the interview. to given the investi claim fective-assistance § this line of petition, and Holl ond amended by Sammons gation conducted Thomas, impermissible profes- “created an inquiry 46 F.3d inan. See Waters Cir.1995) banc) (“The because, (11th (en “along conflict for counsel” sional Hittson, attorneys] trial might with Mr. were [his fact that other witnesses have mere only could have testified testimony witnesses who available or that other been regarding whether or not the waiver was elicited from those who might have been one, voluntary based ground prove truly knowing to is not a sufficient testified prepared Mr. Hittson for (quota counsel.” on how of [trial] ineffectiveness Chandler, omitted)); by expert.” evaluation the State’s Id. also tion marks see (“Once conflict, By failing object to to this at n. 20 we conclude at 30. 218 F.3d “deprived Hittson of the declining investigate was a trial counsel Mr. that further counsel, act, well as effective assistance of as we do look see what reasonable Hittson, aside from Mr. investigation pro a further have witnesses would omitted)). testimony who could counter the State’s (quotation duced.” marks at 31. the waiver was valid.” Id. in- attacking Rather than trial counsel’s allegations His of habeas-counsel inef- itself, vestigation Lipps Rogers chose failing fectiveness for to raise this claim challenge trial counsel’s decision not to “Despite are contained one sentence: investiga- use some of the results of their interest], conflict of first state habeas [the (i.e., tion trial counsel’s decision not to call from & Berlin failed to counsel Swindler Shults). Dr. Prewett or Ms. Strickland them, litigate and to raise these issues exer- presume instructs us to causing procedurally them de- to become professional judgment cised reasoned explained faulted.” at 31-32. As Id. so, alleged nothing has doing and Hittson above, the mere fact that counsel did not presumption. to overcome that particular
raise a claim does not establish 2. performance deficient under Strickland. claim Hittson’s next trial-counsel is: Hittson’s third-trial counsel claim is: of the Effec- Deprived
Mr. Hittson was of the Effec- Deprived tive of Counsel Due to His Mr. Hittson Was Assistance by Alert the Trial tive Assistance of Counsel His Coun- Counsel’s Failure to Independently Into a sel’s Failure to Discover Court that It Had Forced Them by Exculpatory Suppressed Material Regarding Adequacy Conflict During Mr. State. Signed Waiver
His Evaluation Dr. Storms. Pet., Am. Habeas ECF no. Second Pet., hotly-contest- claim relates to the Second Am. ECF no. 32. This Habeas underly- ed issue of trial counsel could briefly 29. We elaborate on the whether psychiatric have Vollmer’s 1991 ing claim. After Dr. Storms testified obtained than the Hous- report state- from a source other “hillbilly” “asshole” Attorney issue County of Hitt- ton District we during penalty phase ments —an trial, in part that the did not address VII above because proposed son’s the trial court not “ma- by calling report Dr. we concluded that the supplement State the record Brady. Throughout terial” under his state testify regarding Storms to the voluntari- post-conviction proceedings, federal ness of Mr. Hittson’s statements and the maintained, his Bra- part Hittson has as surrounding the execution circumstances “[tjrial tial,” were, claim, at the Hittson has failed to overcome counsel dy trial, that, diligent attempting to dis- presumption choosing pres- time of not to in the State’s mitigating evidence claims to cover those County Supe- ent the Butts *54 Am. Pet. for Writ Habeas possession.” Court, rior his habeas counsel were exer- 45, at 114-15. Nonethe- Corpus, ECF no. cising professional judgment. reasoned less, a claim in sought to add as We nonetheless address the merits of the § petition, amended 2254 that his second underlying ineffective-assistance-of-trial- failing for “trial counsel was ineffective claims, explaining counsel Martinez’s “sub- psychiatric use re- [Vollmer’s locate and claim” requirement why stantial Hitt- behalf.” Second port] on Mr. Hittsoris trial-counsel soris claims are not “substan- Pet., 94, Am. Habeas ECF no. at 33-34. tial.” underly- Putting aside the merits of the C. claim the fact that we
ing trial-counsel
already
psychiat-
concluded that the
have
Martinez
articulated the “substantial
a
report
ric
would not have created
rea-
requirement
claim”
as follows:
result,
of a different
we
probability
sonable
default,
To overcome the
a prisoner
ineffec-
look to the relevant habeas-counsel
must ...
underly-
demonstrate
allegations. They are brief: “Had
tiveness
ing ineffective-assistance-of-trial-counsel
habeas counsel not failed to make an
first
one,
say
claim is a substantial
which is to
allegation
alternative
of trial counsel inef-
prisoner
that the
must demonstrate that
fectiveness, the state habeas court would
the claim has some merit.
Miller-El
Cf.
required
have been
to assess whether Mr.
Cockrell,
322,
v.
537 U.S.
123 S.Ct.
Hittsoris trial counsel were ineffective for
(2003) (describing
4. applied elaborated on or this but reference to Miller-El we take Court’s Hittsoris final claim is: to mean that it intended that lower courts Deprived Mr. Hittson was of the Effec- apply already-developed standard for Assistance of Due at Mo- tive Counsel COA, issuing a “a requires which substan- Appeal. Trial tion for New and Direct showing tial of the denial of a constitution- Pet., Second Am. Habeas ECF no. 2253(c)(2). § right.” al 28 U.S.C. identify 34. Hittson does not what his explained As the Court in Mil attorneys wrong did in his motion for a ler-El, petitioner satisfies this stan “[a] appeal, new trial or on direct nor does he jurists ... by demonstrating dard explain how habeas counsel were ineffec- failing claims. He presented tive for to raise these could conclude the issues are relief pled support has not facts to encouragement to deserve adequate U.S; and, thus, has not established that habeas proceed further.” 123 counsel’s conduct fell below Strickland’s petitioner S.Ct. at 1034. Where a must standard. showing” without the make “substantial of a merits determination an sum, if in- benefit underlying
In even Hittson’s court,65 he effective-assistance claims were “substan- earlier must demonstrate context, peti- presents 65. In the COA this situation itself where a district court dismisses making this right.” a constitutional find it debatable reason would “jurists of determination, fact-plead- claim of we consider states valid petition whether § petitions, right.” ing requirement Slack of a constitutional the denial 473, 484, McDaniel, the standard from Strickland. (2000). That L.Ed.2d 542 must show petitioner mean that a does not grant peti- jurists would
“that some Deprived of the Effec- Mr. Hittson Was Miller-El, 537 U.S. at tion.” of Counsel under the tive Assistance claim can be debatable at 1040. “[A] S.Ct. Amendment When His Counsel Sixth jurist might though every reason even Thoroughly Investigate His Failed to case has received full agree, after the ... *55 Mental Upbringing, Background, and consideration, pre- will not petitioner that and Failed to Secure More Time Health Id. vail.” Investiga- for from the Trial Court this tion. that this standard is similar We observe review conducted preliminary
to the
§
Hittson’s second amended
2254
§
proceedings.
in
2254
judges
district
devotes considerable effort to ex
petition
§
4
2254 Rules allows the
Rule
of
why trial
conduct fell
plaining
counsel’s
summarily
peti-
dismiss a
judge
district
performance require
Strickland’s
below
plainly appears
peti-
it
from the
tion “[i]f
incompetent-conduct allega
ment. The
any attached exhibits that
tion and
coun
tions boil down the claim that “[t]rial
is not entitled to relief.” The
petitioner
sel were ineffective due
the lateness
in-
Advisory Committee Notes further
they
investigation,”
this
began
with which
that,
keeping
height-
in
struct
with
originally
trial
counsel
called
“[w]hile
ened,
fact-pleading requirement
to conduct
expert
for more time and
funds
cases,
petition
expected
“the
state
investigation ...
thorough mitigation
a
point
possibility
that
to a real
of
facts
they
they
failed to use the resources
were
Advisory Commit-
constitutional error.”
given effectively
presented very
little
Governing
Rule 4
tee Note to
of
Rules
origins
jury
information to the
about the
of
(quotation marks omit-
Section 2254 Cases
family
problems
early
Mr. Hittson’s
his
ted).
upbringing.”
life and
Am.
Second
Habeas
Pet.,
Thus,
no.
25.
Thus,
“[t]rial
ECF
allegations
examine the
we
very
offer
little evi
counsel’s decision to
proposed
Hittson’s
second
amended
“jurists
mitigation regarding
§
dence
their client’s
petition
to see whether
family background
upbringing
was not
reason would find it debatable whether
in-
petition
they
a valid claim of the denial of
reasonable because
conducted an
states
Slack v.
tioner’s
tioner
tial
would find it debatable whether the
would find
tional
right”
states
claims. Because
S.Ct.
court was correct in its
grounds,
showing
a valid
before an
must
right
McDaniel,
without
federal
it
show,
of the denial of a constitutional
claim of the denial of
debatable whether the district
appeal may
passing
§
[2]
“[1]
petition
Id. at 21-28. truly voluntary a knowing one.” generalized Nowhere in these claims Pet., 94, Second Am. Habeas ECF no. at allege any does Hittson that would facts Hittson, According 30. to trial counsel allow a court to find “that is a rea- there duty by abrogated their Sixth Amendment that, probability sonable but for counsel’s failing object to this conflict. errors, unprofessional of result type The claim is meritless. This of proceeding would have been different.” inquiry into the voluntariness of a defen- Strickland, 104 at U.S. S.Ct. dant’s statements and the circumstances Apart 2068. from broad statements that surrounding the execution of a Miranda investigation trial counsel’s was not thor- in criminal waiver is routine cases where ough enough, identify Hittson does not statement or is admitted. See confession investigatory steps what additional his at- Denno, taken; torneys has not generally should have Jackson 1780-83, proceeding trial In his motion new L.Ed.2d S.Ct. (1964). laid no foundation ... failed to appeal has and direct [c]ounsel Hittson attorneys’ research, raise, support for his bare assertion brief and fully object to the Jackson-Denno failure to claims with evidence the meritorious him of his Sixth Amend- hearing deprived raised that could and should have been He has not cited a right ment to counsel. during that occurred based on the errors authority theory for his scrap legal capital Hittson’s trial. Mr. of interest hearings create a conflict such Pet., Habeas ECF no. Second Am. attorney personal has knowl-
where the allegation prejudice equally The 35. being inquired circumstances edge of the lacking: any profession- into. Nor has he identified attorneys at the motion appointed require that would al or ethical standards appeal stages of for new trial and direct conflict to the attorney bring an such a capital proceedings failed Mr. attention. court’s effectively litigate strong claims on claims, they Mr. Hittson’s behalf. Other entirely. abandoned did these Not Deprived of the Effec- Mr. Was deprived omissions Mr. Toilette [sic] tive Assistance of Counsel His Coun- levels, significantly relief at those but Independently sel’s Failure to Discover ability assert these hindered his Exculpatory Suppressed by Material proceed- claims in the current habeas State. ings. claimed, as an element long Hittson has patently are allegations Id. at 36. Such claim, Brady of his counsel “[t]rial frivolous. diligent attempting ... to discover were pos- in the State’s mitigating Thus, evidence failure to addition to his estab- *57 session,” Am. Pet. for of Habeas Cor- ineffectiveness, Writ lish habeas-counsel 45, 114-15, pus, ECF no. at but he now any has also failed to raise “substantial” “trial counsel was also seeks to claim that underlying claims. ineffective-assistance failing ineffective for to locate and use rely on Martinez to Accordingly, cannot Hitt- psychiatric report] on Mr. [Vollmer’s default. procedural excuse his behalf,” Pet., son’s Second Am. Habeas 94, not at- ECF no. at 33-34. We need IX. inconsistency tempt to resolve this because reasons, the District foregoing For the pled support Hittson has no facts to RE- grant Court’s of habeas relief is he, ineffective-assistance claim—nor could VERSED, and the District Court’s denial court, if to this representations grounds of habeas relief on all other is Court, District courts are to the state AFFIRMED. be believed. ORDERED.
SO 4. CARNES, Judge, concurring: Chief Deprived
Mr. of the Effec- Hittson was tive Assistance of Counsel Due at Mo- fully opin- I in all of the Court’s concur Appeal. tion New Trial and Direct for respond I to the separately ion. write Georgia Supe- that the dissent’s insistence specify not Hittson’s last claim does Court, rejecting petitioner’s rior Es- what of. The complaining conduct he is review, claims on state collateral telle entirety allegations of the of constitutional- ly-deflcient clearly applying erred in Brecht’s harm- performance are as follows: 25, Chapman’s Opn. instead of 1232-33 n. 1236 n. 27. less-error standard “[bjecause standard, and that And are not petitioner-friendly reviewing more we is somehow relevant to reasoning Superior the asserted error announced Court,” is entitled to feder- petitioner Superior whether the whether the ap Court’s Opn. Diss. at 1216- to, al habeas relief. See plication contrary of Brecht was (cid:127) not, It and it is not.1 of, did application involved an unreasonable clearly Supreme prece established Court po- of the dissent’s premise The central Maj. Opn. dent is irrelevant. See at 1236 precedent, circuit as well as sition is that n. 27. Because of AEDPA the ques implications” it sees as the “obvious what tion before us is whether Georgia Su Supreme States Court’s deci- United preme Court had “reasonable basis” Fry, requires sions in Brecht and state for denying Hittson relief on his Estelle Chapman’s harmless-be- apply courts to Richter, Harrington claims. v. See on col- yond-a-reasonable-doubt standard U.S. 178 L.Ed.2d review, just lateral on direct review. (2011) (“Where a state court’s decision premise Id. That and the conclusions an unaccompanied explanation, the it for a wrong the dissent draws from are petitioner’s habeas burden AED- [under number of reasons. by .showing still met PA] must be there First, Georgia the dissent’s focus on the was no reasonable basis for the state court Superior application Court’s of Brecht is relief.”). deny presume We cannot AEDPA, inconsistent with our task under Georgia Supreme from the Court’s silence highest which is to evaluate whether the that it Superior ap followed the Court addressing peti- state court decision Brecht, plying especially given that Hitt- incompatible clearly tioner’s claims is with for a application argued son’s CPC precedent. Supreme established Chapman applied standard state under 2254(d)(1); § See 28 U.S.C. Newland Maj. Opn. law. n. See 1232-33 (11th Cir.2008) Hall, 527 F.3d Mecusker, 27; n. Gill v. 633 F.3d (“[T]he highest state court decision reach- (11th Cir.2011) (examining 1288-89 wheth ing petitioner’s the merits of summary appellate er a state decision was decision.”). claim is the relevant state court though entitled to AEDPA deference even Tjoflat’s Judge opinion As the Court ruling po the trial court’s was “based on today’s correctly explains, case the rele- tentially reasoning”). flawed pur- vant state court decisions for AEDPA *58 Second, not, precedent our own does as poses Georgia Supreme are the Court’s contends, “clearly require[] the dissent summary applications denials of Hittson’s (CPC), hearing corpus appeals státe courts probable for a certificate of cause petitioner-friendly to use the more stan- Georgia Superior not the Court’s denials of Maj. Chapman.” in Diss. petitions. provided Opn. his two state habeas See dard dissenting opinion disagree Majority's 1. The be of two with the statement that it seems to Georgia’s applica- minds about whether the harmlessness stan- does not matter whether ap- Chapman tion of Brecht instead of was unrea- dard that state collateral court trial says, "Fry plied 1282. And it is relevant to the issue of whether feder- sonable.” Id. at granted. grant al should be The first makes it unclear whether we can habe- habeas relief opinion upon paragraph [state trial] of that "To be as relief based collateral states: clear, agree error....” Id. at 1281 n. 4. As a I with the Concurrence that court's dissenting application precaution, respond state court’s of the incorrect stan- I will to mind, says it independent opinion’s which that dard would not be an basis for second matter, opinion’s granting Opn. as to that asser- habeas relief.” Diss. at 1279. does as well error,” state, dissenting opinion goes But the on to "I tion that "it was id. 1274 it; dicta, else is v. of the case before all Citing Trepal
at 1280.
decisions
our
binding
anyone
any
not
on
for
Department
Correc- which is
Secretary, Florida
of
(11th
Prime, Inc.,
Cir.2012),
tions,
v.
602
purpose.
1088
See Edwards
684 F.3d
(11th
(11th Cir.2010) (“We
1276,
In dissenting colleague our appeal, al errors on direct wheth- may reviewed recognize fails to that whatever one Trepal, in federal court. Like attempt er state or opinions, to read into one of our address, our Duest decision did not did not they may say, indeed whatever a decision address, could not have anything beyond purport can never hold the facts
1275
anything
Chapman
Mingo,
1270, 1274
about whether
Dombrowski v.
held
543 F.3d
(11th Cir.2008) (“We
applied
proceed-
must be
state collateral
have held that
ings, because the state collateral courts
‘clearly
requirement
established law’
actually applied Chapman.
that case
2254(d)(1)
§
does not include the law of
nor
Trepal
Id. at 1339 n. Neither
Duest
courts.”);
the lower federal
Putman v.
by
nor
other decision issued
this cir- Head,
(11th
1223,
Cir.2001)
268 F.3d
1241
held,
hold,
cuit has
or had occasion to
(“Clearly established federal law is not the
apply Chapman
only
state courts must
not
courts,
case law of the lower federal
in
review,
on direct
but also on collateral
Court.”).
cluding this
review.
premise
third reason that the
if
an
holding
And even there were
actual
conclusion of the dissenting opinion is
decisions,
to that effect
one of our
it wrong
Supreme
Court’s deci-
AEDPA,
would still be irrelevant under
Fry
sions Brecht and
do
imply,
not
let
which forecloses federal habeas relief un
(and
clearly
alone
hold
thereby establish
the relevant state court decision
less
“was
purposes),
for AEDPA
that state courts
to,
contrary
or involved an unreasonable
required
are
to apply Chapman’s harm-
of,
application
clearly established Federal
less-error standard on collateral review.
law,
Supreme
as determined
Court
support
do,
To
its belief that
the United States.”
28 U.S.C.
dissenting opinion clips language from
2254(d)(1)
added).
§
(emphasis
By relying
decisions, disregards
those two
the context
precedent,
dissenting colleague
on our
our
language,
of that
and omits most of the
forgets
Supreme
what
Court has re
limiting
references
direct review. See
us,
peatedly
only
told
which is that
Opn.
Diss.
at 1280-81. Brecht
Fry
thing
clearly
that can
establish federal law
both underscored that Chapman was de-
purposes
holding
for AEDPA
is a
cided on direct
requires
review and that it
Court,
dicta,
Supreme
United States
apply
states to
harmless-beyond-a-rea-
its
certainly
not the holdings of lower
sonable-doubt standard on direct review.
Matthews,
federal courts.
Parker v.
See
Brecht,
630, 636,
See
1276
Chapman
must
collateral
apply
courts
623,
(emphasis
at 1714
113 S.Ct.
U.S. at
Indeed, it had no occasion to ad-
added).
review.
the relevant
question
dress that
because
the Brecht
reasons
primary
of the
One
in that
court decision
case—which
state
refusing
Chap-
to extend
for
gave
Court
Chapman
is-
notably
apply
failed to
—was
reason
collateral review—a
to federal
man
not on collateral
appeal,
sued on direct
collateral re-
to state
equally applicable
115,
1,n.
id. at
S.Ct.
review. See
difference be-
the fundamental
view—is
2324,
Thus,
when the Su-
at
2325 n.
review,
principal
“is the
which
tween direct
Fry
noted that “state
preme Court
conviction,” and
challenging a
avenue
constitu-
required
courts are
to evaluate
review,
state has an
where the
collateral
it
sim-
Chapman,”
tional error under
convictions that
finality
in the
“interest
that
reiterating
principle
the well-worn
ply
review within
have survived direct
harm-
Chapman
appropriate
sets forth the
at
system.”
court
Id.
state
appeal, which
less-error standard on direct
1719-20;
v.
see also
S.Ct. at
Mansfield
that case was.
Id. at
is what
Corr.,
1301, 1307
679 F.3d
Sec’y, Dep’t of
Brecht,
cir-
Fry,
at 2326. That
S.Ct.
(11th Cir.2012) (“The Supreme Court em-
regardless
that
precedent
cuit
establish
that ‘collateral review is
phasized in Brecht
do,
state courts
federal habeas
what the
and,
review,’
there-
different from direct
apply
must
Brecht’s harmless-error
courts
fore,
may justify
rever-
that ‘an error
imply,
as the dissent
standard does
necessarily
appeal
on direct
will not
sal
suggests,
Chapman
appro-
is the
final judg-
a collateral attack on a
support
on state collateral review.
priate standard
”)
Brecht,
at 633-
(quoting
ment.’
507 U.S.
1279-80;
at
Op.
See Diss.
Brooks
1719-20).
Nothing in
113 S.Ct. at
cf.
(3d Cir.2000)
102, 108
Kyler, 204 F.3d
clearly
let alone
estab-
implies,
Brecht
(“[Djrawing
Supreme
instruction from
lishes,
apply Chap-
that state courts must
pássages through the use of the
If anything,
on collateral review.
man
negative pregnant
risky
is
and unsatisfac-
rationale —that “collat-
principal
Brecht’s
tory.”).
nothing
It
at all about the
implies
from direct
eral review is different
review”
standard for state
proper harmlessness
injurious
ef-
and that the “substantial
collateral review.
“better tailored to the
fect” standard is
purpose of collateral review
nature and
premise
From
unfounded
that state
its
implies
Chapman
than the
categorically required
collateral courts are
standard” —
courts,
courts,
like federal
are
that state
Brecht, the
apply Chapman
instead of
Chapman
not bound to
standard
apply
suggests
dissent
the harmless-error
conducting collateral review.
when
by a state collateral
employed
standard
may
petitioner
affect whether a
court
Supreme
Fry decision took
Court’s
entitled to federal habeas review. See
step
away
one
further
from the
Brecht
Setting aside the
Opn.
Diss.
at 1281-82.
dissenting opinion
position
have
underlying premise,
flaws in its
which
Fry
case.
held that federal habeas
present
discussed,
sug-
the dissent’s
already been
apply
must
the “substantial and in-
courts
gestion
squared
cannot be
with the Su-
jurious
to evaluate consti-
effect” standard
Fry.
In that case
preme Court’s decision
regardless of whether the
tutional errors
rejected
peti-
appellate
a state
court had
recognized the error and re-
state courts
ap-
claim on direct
tioner’s constitutional
it
for harmlessness under
viewed
asserted error
peal, concluding that
Fry,
at 121—
Chapman standard.
551 U.S.
prejudice.” Fry,
possible
resulted
“no
Fry
imply,
1277
omitted).
court,
error,
The state
tion marks
federal habeas relief is still due to
however,
specify
“did not
which harmless-
if
be denied
the constitutional error was
applying,”
standard it was
and the
error
Brecht].”).
harmless [under
Supreme
assumed
the sake of
Court
for
dissenting opinion’s
insistence that
that
the state court .“did not
argument
Fry, despite its clear language, is unclear
the harmlessness of the error
determine
point
this
spurious
rests on the
notion
standard,”
it
Chapman
under the
as was
Fry
that
“assumes that state collateral
at
required
appeal.
to do on direct
Id.
properly apply
courts will
Chapman
115,
1,
2324,
127
at
1.
116 n.
S.Ct.
2325 n.
standard.” Diss.
at
n.
Opn.
Fry
1281
assumption,
Supreme
that
Even with
thing.
assumed no
contrary,
such
To the
petitioner
Fry
concluded that the
in
Court
it explicitly
just
assumed
the opposite.
was not entitled to federal habeas relief
plainly
The Court
stated that
it was as-
because the error was harmless under the
suming that
the state
in
appellate court
Brecht standard.
Id. at
applied
that case had not
the correct
2324,
Fry
at
2328. The
Court held that a
Fry,
harmlessness standard.
551 U.S. at
apply
federal habeas court must
Brecht
(“We
116 n.
S.Ct.
2325 n.
also
appellate
or not the state
court
“whether
that
appellate
assume
the state
court did
recognized the
error and
[constitutional]
reviewed it for harmlessness under the
not determine the harmlessness of the er-
beyond
harmless
a reasonable doubt stan
standard_”).
ror under
Chapman
121-
Chapman.”
dard set forth
Id. at
Judge Tjoflat’s opinion for this Court is
(quotation
at 2328
marks
S.Ct.
absolutely right
says
when it
that Hittson
omitted).
explained
petition
And it
that a
would not be entitled to federal habeas
er, even one who can demonstrate that the
relief under Brecht’s harmless-error stan-
state court’s “harmlessness determination
if
dard even we assumed both that
unreasonable,”
... was
is not entitled to Georgia Supreme
applied
Court had
federal habeas relief unless he “also sa
application
Brecht and that that
was con-
119, 127
standard.” Id. at
Brecht’s
tisfies]
trary
clearly
Supreme
established
omitted);
(emphasis
S.Ct. at 2326-27
see precedent.
Fry says
That
is what
(“[A]
Mansfield, 679
also
F.3d
holds. The
dissenting opinion
sug-
errs
may deny
federal court
habeas relief based
gesting otherwise.
solely on a determination that the constitu
I
put
have
off until the end the most
tional error is harmless under the Brecht
noteworthy
dissenting opinion’s
er-
standard.”).
rors, one that
pro-
would have
most
words,
if
In other
even
a state court
if
reaching impact
found and far
it were
error,
recognize
failed to
constitutional
law,
thankfully
which
it is not. The
harmlessness,
failed to review it for
or
opinion’s
error is embodied
attitude
apply
failed to
the correct harmless-error
relationship
about the
this Court
between
standard,
Supreme
Fry
Court’s
deci-
dissenting opin-
and the state courts. The
requires
sion
that federal habeas relief
position
ion takes the
that we have the
must still be denied if the error was harm-
authority
duty
and the
to lecture state
injuri-
less under Brecht’s “substantial and
courts about federal law and to admonish
recognized
ous effect” standard. We have
law,
are their
them follow the
we
Gen.,
exactly
Hodges Att’y
that. See
teachers,
and that the state courts
this
(11th
Fla.,
State
506 F.3d
1342-43
circuit are bound to
our views.
Cir.2007) (“[I]f
follow
ap-
the state court did not
standard,
example,
dissenting
footnote
correct
ply the
harmless error
recognize
opinion says
regardless
even if it did not
that there was
of whether
*62
Supremacy Clause demands that state law
application
trial court’s
collateral
the state
grant-
law,
for
is basis
yield
the Brecht standard
to federal
but neither federal
of
relief, “we should be
habeas
ing federal
of fed-
supremacy
any
principle
nor
other
error, that it
not
it
should
clear that was
that a state court’s inter-
requires
eral law
that it matters.” Diss.
repeated,
be
way
give
of federal
law
to a
pretation
Instead,
n. 4.
what we should
Opn. at 1281
(lower)
In
interpretation.
federal court’s
that outside of what is
clear about is
be
system, a state trial court’s
our federal
if federal
relief
necessary to decide
is no less
interpretation of federal
law
granted, it is not the role of
is due to be
than that of the federal court
authoritative
courts,
are
of which we
inferior federal
circuit
trial court is
appeals
of
whose
one,
judgment
of state courts on
to sit
Lockhart,
376,
lated in
or the
(1981),
L.Ed.2d 359
and that the testimony
friendly
provided
harmless error standard
injurious
“substantial and
effect” on
California,
by Chapman v.
jury’s
death sentence and was there
(1967).
S.Ct.
The district court concluded that Hittson Although Majority error standard. relief, holding was entitled to habeas Georgia Superior concedes the trial court’s allowance of Dr. Storms’s testimony application denied Hittson his Fifth and Court’s of the Brecht standard added).2 “seemingly (emphasis 684 F.3d at n. 27 claims was Hittson’s Estelle Duest, again, “The harm- Georgia habeas And in we said
anomalous”
petitioner-
for constitutional viola-
apply the more
less-error standard
typically
courts
it con-
Chapman,
from
in all other situations remains the
friendly standard
tions
only required
are
longstanding
Chapman
that state courts
test of
cludes
Califor-
Chapman
proved
harmless error standard
to use
nia: whether the State has
Also, Majority ulti-
review.1
beyond
on direct
harmless
a reasonable
error was
(citation
the state habeas court’s
mately finds
n. 2
apply Chapman here, court unlike the state court
state that the lower court had com-
Fry, found applied mitted constitutional error KELLER, L. Plaintiff- William for Hitt- standard that was more difficult Appellant, precedent to meet than the standard son That required apply. the court not, view, Majority’s in the error was COMMISSIONER OF SOCIAL standard, harmful based on the Brecht SECURITY, Defendant- does not mean the state court did simply Appellee. in applying not err Brecht rather than Chapman. No. 13-14321. Here, court properly applied the district Appeals, United States Court of and concluded that the violation of
Brecht Eleventh Circuit. rights constitutional had a “sub- *66 July injurious effect or influence” stantial and jury’s determination to sentence Brecht, him to death. U.S. Thus, probably at 1722.
S.Ct.
would have achieved habeas relief level, ap-
state court had the state court proper, less onerous standard
plied require
that constitutional violations rever- beyond a
sal unless were “harmless doubt,” Chapman,
reasonable 386 U.S. at
24,
the record as a whole and the horrific
details of Hittson’s crime are so over-
whelming that Dr. Storms’s unconstitu- minimal testimony, rebutting
tional
testimony did provided, of remorse Hittson outcome of
not make a difference I dis-
the trial. Like the district court Hitt-
agree, and find that the violation of