WILLIE JAMES PYE v. WARDEN, GEORGIA DIAGNOSTIC PRISON
No. 18-12147
United States Court of Appeals For the Eleventh Circuit
October 4, 2022
[PUBLISH]
Appeal from the United States District Court for the Northern District of Georgia
D.C. Docket No. 3:13-cv-00119-TCB
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, LUCK, LAGOA, and BRASHER, Circuit Judges.*
NEWSOM, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, and BRANCH, LUCK, LAGOA, and BRASHER, Circuit Judges, joined.
JORDAN, Circuit Judge, filed an opinion concurring in the judgment, in which ROSENBAUM, Circuit Judge, joined.
JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which WILSON, Circuit Judge, joined.
More than a quarter century ago, Willie James Pye was convicted by a Georgia jury of having kidnapped, robbed, gang-raped, and viciously murdered Alicia Yarbrough. The jury recommended that Pye be sentenced to death for his crimes, and the trial judge so sentenced him. Having exhausted his state post-conviction remedies, Pye filed a federal habeas corpus petition, arguing, as relevant here, that his trial counsel rendered him constitutionally ineffective assistance in connection with the sentencing phase of his trial. The district court denied relief, but a panel of this Court reversed and vacated Pye‘s death sentence, holding that the state court‘s rejection of his ineffective-assistance-of-counsel claim was based on an unreasonable determination of the facts and involved an unreasonable application of clearly established federal law. See Pye v. Warden, Ga. Diagnostic Prison, 853 F. App‘x 548, 570–71 (11th Cir.), reh‘g en banc granted, 9 F.4th 1372 (11th Cir. 2021);
We granted rehearing en banc to decide whether the state court‘s decision that Pye is not entitled to relief on his ineffective-assistance claim warrants deference under the Antiterrorism and Effective Death Penalty Act (AEDPA). Because the
I
A
The Georgia Supreme Court‘s decision on direct appeal recounts the grisly facts of Pye‘s crimes:
Pye had been in a sporadic romantic relationship with the victim, Alicia Lynn Yarbrough, but, at the time of her murder, Ms. Yarbrough was living with another man, Charles Puckett. Pye and two companions, Chester Adams and Anthony Freeman, planned to rob Puckett because Pye had heard that Puckett had just collected money from the settlement of a lawsuit. Pye was also angry because Puckett had signed the birth certificate of a child whom Pye claimed as his own.
The three men drove to Griffin[, Georgia] in Adams’ car and, in a street transaction, Pye bought a large, distinctive .22 pistol. They then went to a party where a witness observed Pye in possession of the large .22. Just before midnight, the three left the party and drove toward Puckett‘s house. As they were leaving, a witness heard Pye say, “it‘s time, let‘s do it.” All of the men put on the ski masks which Pye had brought with him, and Pye and Adams also put on gloves.
They approached Puckett‘s house on foot and observed that only Ms. Yarbrough and her baby were home. Pye tried to open a window and Ms. Yarbrough saw him and screamed. Pye ran around to the front door, kicked it in, and held Ms. Yarbrough at gunpoint. After determining that there was no
money in the house, they took a ring and a necklace from Ms. Yarbrough and abducted her, leaving the infant in the house. The men drove to a nearby motel where Pye rented a room using an alias. In the motel room, the three men took turns raping Ms. Yarbrough at gunpoint. Pye was angry with Ms. Yarbrough and said, “You let Puckett sign my baby‘s birth certificate.” After attempting to eliminate their fingerprints from the motel room, the three men and Ms. Yarbrough left in Adams’ car. Pye whispered in Adams’ ear and Adams turned off onto a dirt road. Pye then ordered Ms. Yarbrough out of the car, made her lie face down, and shot her three times, killing her. As they were driving away, Pye tossed the gloves, masks, and the large .22 from the car. The police later recovered these items and found the victim‘s body only a few hours after she was killed. A hair found on one of the masks was consistent with the victim‘s hair, and a ballistics expert determined that there was a 90% probability that a bullet found in the victim‘s body had been fired by the .22. Semen was found in the victim‘s body and DNA taken from the semen matched Pye‘s DNA. When Pye talked to the police later that day, he stated that he had not seen the victim in at least two weeks. However, Freeman confessed and later testified for the State.
Pye v. State, 505 S.E.2d 4, 9–10 (Ga. 1998). Based on the evidence presented, a Georgia jury found Pye guilty of malice murder, kidnapping with bodily injury, armed robbery, burglary, and rape.
Attorney Johnny Mostiler represented Pye at both the guilt and penalty phases of his trial. At sentencing, Mostiler—with help from his investigator Dewey Yarbrough, who had no relation to the victim—called eight witnesses to testify on Pye‘s behalf: Pye‘s sister Pam Bland, sister Sandy Starks, brother Ricky Pye, father Ernest Pye, niece Chanika Pye, nephew Dantarius Usher, sister-in-law Bridgett Pye, and family friend Lillian Buckner. While Mostiler elicited some testimony about Pye‘s impoverished upbringing—for instance, that his childhood home lacked running water and heat—Pye‘s witnesses mainly testified to his good moral character and asked the jury to show mercy by declining to impose a death sentence. The State, meanwhile, presented evidence of Pye‘s reputation for violence in the community, earlier crimes and altercations with Alicia Yarbrough, and the aggravating circumstances of the murder. The State also argued Pye would pose a danger to prison staff were he to remain incarcerated. The jury recommended a death sentence, which the trial court imposed, and the Georgia Supreme Court affirmed. See id. at 14.
B
Pye filed a petition for post-conviction relief in the Butts County Superior Court. He raised numerous grounds, including, as relevant here, that Mostiler had provided constitutionally ineffective assistance of counsel during the sentencing phase of his trial by failing to “conduct an adequate pretrial investigation into [Pye‘s] life, background, physical and psychiatric health to uncover and present to the jury evidence in mitigation.” Doc. 13-31 at 13; see Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that an attorney‘s performance is constitutionally ineffective when he (1) renders deficient performance (2) that prejudices the defendant). The state court conducted a three-day evidentiary hearing. In support of his petition, Pye presented affidavit testimony from 27 witnesses, 24
The State‘s response to Pye‘s petition, as relevant here, included testimony from Dewey Yarbrough. Yarbrough testified that he and Mostiler investigated Pye‘s background in preparation for trial but found Pye‘s family generally unwilling to cooperate in his defense or to help pursue other leads. The State also called its own mental-health expert, who testified that the facts of Pye‘s crime, which involved significant premeditation and planning, weren‘t consistent with frontal-lobe impairment or fetal-alcohol syndrome—though he acknowledged that Pye had cognitive deficits that would have affected his ability to function in the community.
The Butts County court denied relief on all counts. The court concluded that Mostiler‘s performance at sentencing wasn‘t constitutionally deficient and that, even if it was, it didn‘t prejudice Pye. With respect to evidence of Pye‘s childhood of poverty and abuse, the court concluded that any failure to investigate and present this evidence wasn‘t prejudicial. In so holding, the court emphasized (1) credibility concerns regarding the affidavit testimony presented at the state post-conviction proceedings; (2) evidence of Pye‘s family‘s unwillingness to cooperate in his defense at the time of trial; (3) the minimal connection between Pye‘s background and the crimes he committed; (4) Pye‘s age at the time of his crimes; and (5) the extensive aggravating evidence presented by the State at sentencing. See Doc. 20-40 at 64–67. With respect to Pye‘s mental-health evidence, the court credited the testimony of the State‘s expert that Pye was not as impaired as his witnesses suggested. Id. at 63–64. And with respect to Pye‘s evidence of his behavior in prison and lack of future dangerousness, the court concluded that disciplinary reports in Pye‘s prison records indicated “a history of insubordination, aggressiveness and propensity for violence toward those in authority” that negated any reasonable probability that testimony like that offered by the corrections officers during state post-conviction proceedings would have affected the outcome of sentencing. Id. at 61–62. The Georgia Supreme Court summarily denied Pye a certificate of probable cause to appeal.
C
Pye filed a petition for a writ of habeas corpus pursuant to
A three-judge panel of this Court reversed the district court and vacated Pye‘s death sentence in an unpublished opinion. Pye, 853 F. App‘x 548. The panel held that the district court erred in rejecting Pye‘s sentencing-phase Strickland claim because the state court‘s conclusions as to both deficient performance and prejudice were based on unreasonable factual determinations and involved unreasonable applications of Strickland—and therefore weren‘t entitled to AEDPA deference. Id. at 563, 567. Engaging in de novo review, the panel held that Mostiler‘s performance at sentencing was deficient because he failed (1) to conduct a sufficient investigation into the potentially mitigating circumstances of Pye‘s background—specifically, his childhood history of extreme poverty and abuse; (2) to obtain a mental-health evaluation of Pye or otherwise uncover his mental deficiencies; and (3) to attempt to rebut the State‘s argument about Pye‘s future dangerousness. Id. at 563–65. The panel concluded that these deficiencies were prejudicial notwithstanding the aggravating evidence that the State presented at sentencing, and thus concluded that Pye was entitled to habeas relief. Id. at 570–71.
The State filed a petition for rehearing en banc, which presented a single issue: whether the panel‘s review “of the state court‘s determination that the petitioner failed to establish prejudice at the sentencing phase” conflicts with Eleventh Circuit and Supreme Court precedent. App. Doc. 59 at 1. After this Court voted to rehearse the case en banc, we issued a briefing notice that framed the issue somewhat more generally: whether the state court‘s decision that Pye‘s trial counsel “did not render constitutionally ineffective assistance during the penalty phase of trial” was contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts. App. Doc. 62 at 1. Pye‘s opening en banc brief focused almost exclusively on the prejudice prong of Strickland‘s two-part test, noting that because “the [state] did not seek rehearing of” the panel‘s deficient-performance holding, it had abandoned that issue. En Banc Br. of Appellant at 70 n.20. The State‘s brief in response addressed only prejudice but said, in a footnote, that it had focused on prejudice because “it [was] easier to do so in this case” and that it was “not conceding that trial counsel‘s performance was deficient.” En Banc Br. of Appellee at 39 n.8.
Given the State‘s failure to seek rehearing on or brief the merits of the deficient-performance issue, we won‘t consider whether the district court erred in holding that the state court‘s conclusion as to deficient performance at sentencing was reasonable and entitled to deference. Instead, we will assume that Mostiler‘s performance was deficient and evaluate only the
II
A
We review de novo a district court‘s denial of habeas relief on an ineffective-assistance-of-counsel claim, which presents a mixed question of law and fact. See Connor v. Sec‘y, Fla. Dep‘t of Corr., 713 F.3d 609, 620 (11th Cir. 2013).
When a state court has adjudicated a habeas petitioner‘s claim on the merits, we review its decision under AEDPA‘s “highly deferential” standards. Davis v. Ayala, 576 U.S. 257, 269 (2015). Under those standards, we may not grant the writ unless the state court‘s “adjudication of the claim . . . (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
When the final state court decision on the merits doesn‘t come with reasons—as here, where the Georgia Supreme Court summarily denied Pye a certificate of probable cause to appeal the denial of his habeas petition—the federal court must “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
B
Before diving into the merits, we pause to clarify three points about AEDPA‘s standard of review.1
1
First, despite some lingering confusion—including among the parties here—it‘s not (any longer) the law that a federal court should decline to defer to a state court‘s factual determinations if it concludes that those findings “lacked . . . fair support in the record.” Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011) (quotation omitted). Unlike this case, Rose involved a habeas petition filed “before the effective date of [AEDPA],” so it applied “pre-AEDPA law.” Id. at 1240. The pre-AEDPA version of the federal habeas statute “provided that factual findings of a state court were presumed to be correct unless ‘the Federal court on consideration of the record as a whole concludes that such factual determination is not fairly supported by the record.‘” Fugate v. Head, 261 F.3d 1206, 1215 n.11 (11th Cir. 2001) (emphasis added) (quoting
2
Second, even if a petitioner successfully carries his burden under
3
Third, although the Supreme Court‘s decision in Wilson instructs us to
Both Pye and our dissenting colleagues assert that Wilson prohibits us from considering justifications that support the reasons underlying the state court‘s decision but that, for whatever reason, the state court didn‘t explicitly memorialize in its written opinion. For reasons we will explain, we disagree.
Given the vigor with which the dissent presses its Wilson-based argument—and the fact that it is, for all practical purposes, the lone basis on which the dissent sidesteps AEDPA deference—it‘s worth explaining our position in some detail. The dissent strenuously—and stridently—insists that because the Butts County Superior Court issued a written opinion, we are obliged by Wilson to limit our review not just to the “reasons” for that court‘s decision—as relevant here, that Pye wasn‘t prejudiced by Mostiler‘s allegedly deficient performance—but also, at an even more granular level, to the particular justifications that the court provided to support those reasons. Indeed, the dissent goes so far as to assert that our contrary view is a “[n]onsense” “gambit” that “nullifi[es]” Wilson. Dissenting Op. at 16, 18. Respectfully, we don‘t think so. Here‘s why.3
Consistent with the statutory text, the Supreme Court unanimously held in Harrington v. Richter, 562 U.S. 86, that a state court‘s decision rejecting a petitioner‘s post-conviction claim is entitled to AEDPA deference even “when state-court relief is denied without an accompanying statement of reasons“—e.g., in a “one-sentence summary order.” Id. at 92, 96.4 Notably, in so holding, the Court emphasized
Consistent with both AEDPA‘s plain language and the logic of the Supreme Court‘s decision in Richter, this Court has long (and consistently) held that where, as here, a state court rejects a petitioner‘s claim in a written opinion accompanied by an explanation, the federal habeas court reviews only the state court‘s “decision”
marks omitted); see also Meders, 911 F.3d at 1350 (noting that “a line-by-line critique of the state court‘s reasoning” is “not the proper approach“).
And to be clear, ours is hardly an outlier view; rather, it represents the overwhelming consensus position. Surveying courts across the country, the Fifth Circuit recently summarized that “most of the courts of appeals” have held that even where a state court rejects a petitioner‘s claim in a reasoned decision, the federal “habeas court must defer to a state court‘s ultimate ruling rather than to its specific reasoning.” Sheppard v. Davis, 967 F.3d 458, 467 n.5 (5th Cir. 2020) (collecting cases so holding from the First, Second, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits); accord, e.g., Holland v. Rivard, 800 F.3d 224, 236-37 (6th Cir. 2015) (“[I]t is the decision of the state court, not its reasoning, to which AEDPA deference applies.“).
And indeed, given Richter, that‘s the only rule that makes any sense at all. On the dissent‘s view, if a state court offers no explanation whatsoever for its decision to deny a petitioner relief, its decision is, per Richter, entitled to full AEDPA deference, and the federal court should indulge any “argument[] or theor[y]” that “could have supported” that decision. 562 U.S. at 102. But, the dissent insists, as soon as the state court gives it the old college try and writes an opinion, the federal court is stuck, so to speak, with the specific justifications articulated therein. As this Court recently explained, such a rule “would be irrational.” Meders, 911 F.3d at 1351 (observing that “[i]t would be irrational to afford deference to a decision with no stated explanation“—as Richter clearly requires—“but not afford deference to one that states reasons, albeit not as thoroughly as it could have“). The “irrational[ity]” of the dissent‘s position exists on at least two levels. First, and most obviously—and most perversely—it would incentivize state courts to issue unreasoned, summary decisions as a means of guaranteeing maximum AEDPA deference. Second, as a sister circuit has explained, any state court‘s written opinion is necessarily “partial“; it will never perfectly and exhaustively capture every justification underlying the court‘s decision:
[E]ven if we assume that deference to the state court‘s decision is warranted only when there is some possibility that the court specifically contemplated “reasonable” grounds for denying relief, the issuance of a written opinion with deficient reasoning does not eliminate such a possibility. Just as there is more than one way to skin a cat, there often is more than one way to resolve an appeal, and not every possible approach makes it into an opinion.
Williams v. Roper, 695 F.3d 825, 837 (8th Cir. 2012).
The lone question, then, is whether the Supreme Court‘s decision in Wilson instituted an entirely new and different
But the dissent insists—wrongly—that Wilson does so much more. Disregarding both the Wilson Court‘s own specification of the narrow issue before it, see 138 S. Ct. at 1195, and our subsequent reaffirmation that Wilson dealt only with the question of “which state court decision we are to look at if the lower state court gives reasons and the higher state court does not,” Meders, 911 F.3d at 1350, the dissent insists that Wilson changed how AEDPA applies to all reasoned decisions, regardless of procedural posture. That‘s the only way to make sense of the dissent‘s criticism of our post-Wilson decision in Whatley, which the dissent admits “arose in a different procedural posture” but which it nonetheless says “conflicted with Wilson.” Dissenting Op. at 22-23 n.19. And it‘s the only way to make sense of the dissent‘s criticism of our citation to “pre-Wilson” cases that didn‘t involve summary affirmances, see id. at 26 & n.21, or its own reliance on post-Wilson cases that didn‘t involve summary affirmances, see id. at 26-30.
Bottom line: To the dissent, Wilson isn‘t remotely limited to the “look through” issue that the Supreme Court said it was tackling; rather, Wilson sub silentio revolutionized AEDPA‘s application to all state-court decisions. We simply—but vehemently—disagree.
To support its position, the dissent points to a passage in Wilson in which it says the Supreme Court “h[eld] that AEDPA ‘requires’ a federal habeas court to look to the last reasoned state court decision and then ‘train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner‘s federal claims.‘” Dissenting Op. at 14-15 (quoting Wilson, 138 S. Ct. at 1191-92, 1195-96 (quoting, in turn, Hittson v. Chatman, 135 S. Ct. 2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari))). But the dissent‘s quotation stops short. Notably, the Supreme Court went on, in language that the dissent omits, to clarify that, having divined the “reasons” for the state courts’ decision, the federal court should “give appropriate deference to that decision.” Wilson, 138 S. Ct. at 1192. Notably as well, for the latter proposition the Court cited—as binding and with approval—its earlier decision in Richter. See id.
The dissent‘s confident contention to the contrary notwithstanding, there is simply nothing in Wilson that clearly confines a federal habeas court to the precise justifications
Wilson was about which state court decision we are to look at if the lower state court gives reasons and the higher state court does not. It was not about the specificity or thoroughness with which state courts must spell out their reasoning to be entitled to AEDPA deference or the level of scrutiny that we are to apply to the reasons that they give.
Meders, 911 F.3d at 1350.8 And even more recently, we held—and then declined to reconsider, over the exact same Wilson-based
objection that today‘s dissent recycles—that a federal habeas court‘s “review is not limited to the reasons the [state court] gave in its analysis.” Whatley, 927 F.3d at 1178 (“[O]ur review is not limited to the reasons the [state court] gave in its analysis.“), reh‘g en banc denied, 955 F.3d 924. And for what it‘s worth, others share our skepticism about the dissent‘s ambitious understanding of Wilson‘s reach. See Sheppard, 967 F.3d at 467 n.5 (“[I]t is far from certain that Wilson overruled sub silentio the position—held by most of the courts of appeals—that a habeas court must defer to a state court‘s ultimate ruling rather than to its specific reasoning.“); Thompson v. Skipper, 981 F.3d 476, 483-84 (6th Cir. 2020) (Nalbandian, J., concurring) (“Federal courts have never been required to confine their habeas analysis to the exact reasoning that the state court wrote, and [nothing in] Wilson v. Sellers . . . compels us to change our analysis.” (citation omitted)); id. at 484 (“[N]othing in Wilson suggests that federal courts cannot look to any other reason for supporting the state court[‘s] decision and applying AEDPA deference.“).9
The dissent‘s Fourth and Seventh Circuit citations are similarly unavailing. In holding that a state court‘s decision was reasonable, the Fourth Circuit in Richardson v. Kornegay adopted pretty much exactly the approach that we‘ve outlined here: It defined the state court‘s “particular reason” at a relatively high level of generality—namely, that “the trial court did not abuse its discretion“—and then distinguished that reason from its underlying “rationale,” which it said “support[ed] finding no abuse of discretion.” 3 F.4th 687, 697-98 (4th Cir. 2021) (quotation omitted). And in Winfield v. Dorethy, the Seventh Circuit declined to decide exactly how
So, after careful review of the dissent‘s two-page string cite, it turns out that just one circuit—the Ninth—has employed its sweeping rule. See Kipp v. Davis, 971 F.3d 939, 948-60 (9th Cir. 2020). But the Ninth Circuit had limited federal habeas courts’ review to the state courts’ specific justifications long before Wilson was decided and has done so on a different theory than the dissent proffers here—namely, on the ground that certain factual determinations rendered the “fact-finding process itself . . . defective” rather than that “the resulting finding[s]” were themselves substantively unreasonable. See id. at 953-55 (applying its earlier decision in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004)). Even before Wilson, we had noted the circuit split over whether “state court‘s fact-finding procedures” can render its decision unreasonable under AEDPA, and we declined to adopt the Ninth Circuit‘s approach in Taylor. See Landers v. Warden, 776 F.3d 1288, 1298 (11th Cir. 2015).
No circuit, so far as we can tell, shares the dissent‘s view that Wilson somehow changed the way AEDPA applies to reasoned state-court decisions.
Absent a clearer indication that Wilson “meant to strike the widespread method of applying AEDPA without even[] mentioning the overhaul that would result,” id., we decline to read the Supreme Court‘s decision as aggressively as the dissent does.
C
Back to this case: AEDPA‘s deferential standard of review governs the state court‘s application of Strickland, which itself places a demanding burden on a convicted defendant to show that he was prejudiced by his counsel‘s deficient performance. “In the capital sentencing context, the prejudice inquiry asks whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Shinn, 141 S. Ct. at 522-23 (quotation marks omitted). “A reasonable probability means a substantial, not just conceivable, likelihood of a different result.”10 Id. at 523 (quotation marks omitted). And this probability must be sufficient for the reviewing court to determine that counsel‘s errors were “so serious as to deprive the defendant of a fair trial . . . whose result is reliable.” Strickland, 466 U.S. at 487.
Applying AEDPA to Strickland‘s prejudice standard, we must decide whether the state court‘s conclusion that Mostiler‘s performance at the sentencing phase of Pye‘s trial didn‘t prejudice him—that there was no “substantial likelihood” of a different result—was “so obviously wrong that its error lies beyond any possibility for fairminded
III
The state court‘s conclusion that Pye wasn‘t prejudiced by any of Mostiler‘s alleged deficiencies was not “contrary to” and did not “involve[] an unreasonable application of, clearly established Federal law,” nor was it “based on an unreasonable determination of the facts.”
To assess whether an allegedly deficient aspect of a lawyer‘s performance was prejudicial, courts must “consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation.” Porter v. McCollum, 558 U.S. 30, 41 (2009) (alteration adopted) (quotation marks omitted). Here, Pye alleges multiple grounds on which Mostiler‘s performance was deficient: His failure to (a) reasonably investigate mitigation evidence concerning Pye‘s background, (b) discover evidence of Pye‘s mental-health issues, and (c) attempt to rebut the State‘s future-dangerousness argument by presenting evidence of Pye‘s nonviolent behavior in prison. Before us, Pye also argues (d) that he was prejudiced by Mostiler‘s deficient failure to introduce at sentencing residual-doubt evidence supporting his version of the events surrounding his crimes.12 Accordingly, the state court‘s conclusion that there was no sentencing-phase prejudice is reasonable and entitled to deference if its prejudice determinations with respect to each alleged deficiency, and with respect to the deficiencies cumulatively, were reasonable. They were.
A
It was reasonable for the state court to conclude that Mostiler‘s failure to further investigate Pye‘s difficult childhood and present this mitigating evidence at sentencing wasn‘t prejudicial. The court‘s prejudice determination with respect to this deficiency was based on (1) its decision to discount the affidavit evidence presented at the state post-conviction proceedings
1
First, the discounting of the affidavits. The state court expressed both (a) concerns about the credibility of the affidavits generally and (b) specific concerns based on inconsistencies that it identified in the affidavits of Curtis Pye, Ricky Pye, Lolla Mae Pye, and Arthur Lawson. While the court‘s determination that these affidavits contained inconsistencies might have been debatable, it wasn‘t “clear[ly] and convincing[ly]” erroneous.
The state court read the affidavits of Curtis, Ricky, and Lolla Mae Pye as stating that Mostiler didn‘t speak with them at all before trial—whereas contemporaneous billing records show that Mostiler in fact met with all three. Pye argues that these affidavits are best read to assert only that Mostiler didn‘t talk to the affiants about Pye‘s childhood. So, the argument goes, the affidavits weren‘t inconsistent with the record, the presumption is rebutted, and it was thus unreasonable for the state court to discredit them. We disagree. However debatable, the state court‘s interpretation of these affidavits was not clearly and convincingly erroneous.
Starting with Pye‘s brother Curtis, he testified in his affidavit about his family‘s impoverished circumstances and his parents’ alcoholism and fighting, and concluded his affidavit as follows:
No one talked to me about any of this before Willie James‘s trial. Johnny Mostiler and his assistant Dewey know me. Mr[.] Mostiler represented me before. He didn‘t get in touch with me or ask me any questions about the house Willie James was raised in or what he was like as a child. If he had, I would have said all the things I‘ve said in this statement, and I would have testified to all these things if he had asked me to.
Doc. 16-24 at 83. The state court‘s quotation of this passage used ellipses in a way that made it seem like Curtis definitively stated that Mostiler didn‘t speak to him at all before trial: “No one talked to me . . . before Petitioner‘s trial. Johnny Mostiler and his assistant Dewey know me . . . He didn‘t get in touch with me.” Doc. 20-40 at 65 (omissions in original). But without regard to whether the state court‘s interpretation of this affidavit was the most natural, it wasn‘t clearly and convincingly erroneous. That is particularly so given the fact that Curtis stated, disjunctively, that Mostiler didn‘t either “get in touch with me” or “ask me any questions about the house.” Moreover, if Curtis meant to convey only that Mostiler didn‘t talk to him about Willie‘s childhood, it‘s unclear why he would have said that “Johnny Mostiler and his assistant Dewey know me“—a statement that would make most sense if Mostiler had failed to contact Curtis at all. Given this entirely plausible interpretation of Curtis‘s affidavit—with
Turning, then, to Ricky Pye‘s affidavit. It stated, in pertinent part, that—
“The investigator, a man named Dewey, came by the house and talked to my dad about the charges against Willie. He didn‘t ask about Willie James and how he came up, or how we all were raised. Dewey never spoke to me about those things. . . . I took the stand to testify later on in the trial. No one talked to me about my testimony before I went. I never spoke to Mr. Mostiler about what to say, and he didn‘t meet with me or ask me any questions before my turn for testimony. I knew who he was because he represented me before that.”
Doc. 16-24 at 99-100. Whether or not the best reading, the state court‘s interpretation of Ricky‘s affidavit as suggesting that Mostiler didn‘t speak to him at all before his testimony wasn‘t clearly and convincingly erroneous. Ricky said that Dewey talked to “[his] dad“—not him—and his statement that he knew who Mostiler was because Mostiler had represented him before suggests that he didn‘t meet Mostiler again in the context of preparing for Willie‘s trial. Moreover, Ricky‘s statement that “[n]o one talked to me about my testimony before I went” suggests—or at the very least could reasonably be read to suggest—that he didn‘t speak to Mostiler at all before his testimony. (Again, the dissent offers no response to this plausible interpretation of Ricky‘s affidavit. See Dissenting Op. at 40.) So, given the fact that Mostiler did speak to Ricky for an hour about a month before trial, the state court‘s finding that Ricky‘s affidavit testimony contradicted the record evidence was not clearly and convincingly erroneous.
Next, Pye‘s mother, Lolla Mae. As relevant here, she testified by affidavit as follows: “No one took the time to talk to me about all anything before Willie‘s trial. Nobody ask me all about how I grew up, how I came to be married to Ernest, and how I raised Willie and my other children.” Doc. 16-24 at 97. The state court read this statement as suggesting that no one from Willie‘s trial team spoke to her at all—contradicting Dewey Yarbrough‘s testimony and Mostiler‘s billing records that reflect their meeting with her. While the phrase “all anything” is unusual and could reflect a typographical error, the most natural correction of such an error would simply be to remove the word “all.” That would leave the statement, “No one took the time to talk to me about anything before Willie‘s trial.” And if “all anything” wasn‘t a typo but just a nonstandard turn of phrase, then the statement could plausibly be interpreted to suggest that Mostiler and Yarbrough didn‘t speak to Lolla Mae at all. So again, the state court‘s interpretation of Lolla Mae‘s statement and its resulting finding of an inconsistency was not clearly and convincingly erroneous.
Finally, the affidavit of social worker Arthur Lawson. The state court questioned Lawson‘s credibility because, while he initially testified that he had observed Lolla Mae intoxicated when she was pregnant, he later submitted another affidavit to “clarify [this] inaccurate statement” with the explanation that he had “no direct knowledge” that Pye‘s mother drank during pregnancy. Doc. 20-40 at 65. He had simply presumed that she did so based on general indications that she‘d been drinking. See Doc. 20-6 at 17. If we were evaluating Lawson‘s testimony de novo, we might not view this clarification as a particularly negative reflection on his affidavit‘s
Despite these reasonable credibility concerns with some of the affidavits, Pye argues that it was unreasonable to discount all of the affidavits based on perceived credibility issues with just a few of them. It‘s true that for many of the affidavits that speak to Pye‘s childhood neglect and abuse, neither the state court nor the State have offered specific reasons to doubt their truth besides the general concern with “artfully drafted” affidavit testimony collected many years after trial. And in Porter v. McCollum, the Supreme Court held, with respect to evidence adduced from deposition testimony taken during habeas proceedings, that it was “unreasonable to discount to irrelevance the evidence of [the petitioner‘s] abusive childhood, especially when that kind of history may have particular salience for a jury evaluating [the petitioner‘s] behavior in his relationship with [the victim].” 558 U.S. at 43.
But here, there‘s no indication (and the dissent has pointed to none) that the state court discounted the contents of the affidavits “to irrelevance“—the court merely stated that it “reviewed the Petitioner‘s affidavit evidence with caution.” Doc. 20-40 at 66 (emphasis added). And “when the mitigating weight given to the post-conviction evidence is unclear, we must presume that state courts know and follow the law.” Evans v. Sec‘y, Dep‘t of Corr., 703 F.3d 1316, 1329-30 (11th Cir. 2013) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). That presumption isn‘t defeated here because the Supreme Court hasn‘t defined a standard that courts must follow in weighing the credibility of affidavit evidence produced in habeas proceedings. So, the state court‘s decision to view the affidavit evidence “with caution” was neither contrary to nor an unreasonable application of clearly established federal law.
Nor was the state court‘s finding that the affidavits had been artfully drafted clearly and convincingly erroneous. For one thing, the court identified material inconsistencies in the affidavits provided by Curtis, Ricky, and Lolla Mae Pye and Arthur Lawson. For another, there was substantial uniformity across the affidavits in terms of the language used to describe both Mostiler‘s alleged failure to discuss Pye‘s background with the affiants and the affiants’ willingness to testify at sentencing had they been asked—a uniformity that could plausibly suggest artful drafting of the sort that might create reasonable credibility concerns. See Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir. 1995) (“[T]he existence of [habeas] affidavits, artfully drafted though they may be, usually proves little of significance.“).13
2
Second, Pye‘s family‘s unwillingness to cooperate at trial. In order for Mostiler‘s alleged failure to adequately investigate Pye‘s background to have resulted in prejudice, Pye‘s family would have had to have been willing (1) to cooperate during Mostiler‘s pretrial investigation, (2) to take the stand during sentencing, and (3) to testify frankly about the extreme neglect and abuse that Pye allegedly suffered in their home. If, contrary to what the affidavits said years later, Pye‘s family was less than fully cooperative at the time of sentencing, it would undermine Pye‘s contention that he was prejudiced. It was not unreasonable for the state court to consider the “evidence suggesting [Pye‘s] family‘s unwillingness to cooperate” as weighing against a finding of prejudice. Doc. 20-40 at 67. That evidence included (1) a contemporaneous memo from Mostiler‘s files noting that Pye‘s brothers didn‘t respond to his phone calls, see Doc. 19-11 at 93; and (2) Dewey Yarbrough‘s state post-conviction testimony that Pye‘s family “w[as] not willing to work with [them],” “didn‘t put any effort forth on any of the contacts” he made with them, Doc. 19-11 at 24, and wasn‘t willing to help him pursue leads, Doc. 14-41 at 85-86. Of course, some of Pye‘s family did testify at sentencing. But that doesn‘t mean that it was unreasonable for the state court to consider the family‘s general uncooperativeness as undermining any argument about prejudice.
3
Third, the lack of “nexus” between Pye‘s background and his crimes.15 It wasn‘t clearly and convincingly erroneous for the state court to find, nor was it unreasonable for it to weigh in its prejudice analysis the fact, “that there is little, if any, connection between [Pye‘s] impoverished background and the premeditated
And indeed, such a rigid rule would contradict the commonsense prejudice standard, which assesses the likelihood that counsel‘s failures changed the outcome of sentencing: Background circumstances that are closely linked to the defendant‘s crime are naturally more likely to influence jurors than those that aren‘t. Here, the state court reasonably concluded that Pye‘s childhood poverty and neglect aren‘t strongly connected to his crimes of gang-rape and murder16—and this factor could properly have played a role in the court‘s overall prejudice evaluation. Moreover,
given that it‘s unclear from the court‘s opinion the extent to which the court relied on this “nexus” factor in its prejudice analysis, “we must presume that [the] state court[] kn[e]w and follow[ed] the law.” Evans, 703 F.3d at 1329–30 (quotation marks omitted).
4
Fourth, Pye‘s age at the time of the crime. It wasn‘t unreasonable for the state court to give less mitigating weight to evidence about Pye‘s childhood because he was 28 years old when he committed his crimes. It‘s true that in Porter, the Supreme Court held that it was “unreasonable to discount to irrelevance the evidence of [the petitioner‘s] abusive childhood” even though he was 54 years old at the time of the trial. 558 U.S. at 37, 43. But Pye overreads Porter when he claims that it makes the state court‘s treatment of Pye‘s age “patently unreasonable.” En Banc Br. of Appellant at 52 (quoting Pye, 853 F. App‘x at 566). Neither Pye nor the dissent points to anything in Porter that explicitly forbids courts from considering age as one factor among many in their prejudice analyses—just as the state court did here. Cf. Evans, 703 F.3d at 1329-30 (noting that we must presume that state courts “know and follow the law” when determining what mitigating weight to give to post-conviction evidence). Regardless of whether we would read Porter de novo as signaling that habeas courts generally shouldn‘t weigh age heavily in their prejudice analyses, it wasn‘t contrary to or an unreasonable application of “clearly established Federal law,”
Moreover, as just explained with respect to “nexus,” a per se prohibition on the consideration of a defendant‘s age in the prejudice analysis would make little sense given that standard‘s requirement that we determine the likely impact of the unpresented evidence on the jury: Childhood neglect and abuse are certainly more likely to influence the jury if the defendant was barely an adult at the time of the crime than if he was significantly older. We do not interpret Porter as abrogating our precedents treating a defendant‘s age at the time of his crime as an appropriate factor for a court to consider (among others) when conducting a Strickland prejudice analysis. See, e.g., Tompkins v. Moore, 193 F.3d 1327, 1337 (11th Cir. 1999) (noting that “where there are significant aggravating circumstances and the petitioner was not young at the time of the capital offense, evidence of a deprived and abusive childhood is entitled to little, if any, mitigating weight” (quotation marks omitted)); Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir. 1994); cf. Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990) (per curiam) (noting that “the fact that [the defendant] was thirty-one-years old” when he committed the crime weighed in favor of finding that trial counsel made a reasonable “decision not to investigate family childhood background“).17
5
Fifth, and finally, the aggravating factors.18 The state court found especially relevant the “extensive evidence presented in
Here are the aggravating factors that the jury heard about Pye at sentencing: He had previously struck Alicia in the back with a gun, had been arrested for burglary, and had a “very bad” reputation for violence in the community. He enlisted two accomplices to kidnap Alicia—leaving an infant he thought was his alone at her home—and drive her to a motel room where the three men each raped her at gunpoint. Pye, 505 S.E.2d at 8-10. Then, they took her out onto a dirt road, where Pye ordered her to lie face-down on the ground, before he shot her in the back twice, after which she begged him not to shoot her in the head. Despite the opportunity to show mercy, Pye shot her in the head anyway. Alicia took between 10 and 30 minutes to die, during which time she would have been conscious almost until the end, “crawl[ing] in the dark” and “alone.” Doc. 13-11 at 88-89. It wasn‘t unreasonable for the state court to weigh these aggravating factors heavily in its evaluation of whether the presentation of additional mitigating evidence about Pye‘s background would have changed a juror‘s vote for the death sentence.19
* * *
The state court‘s task in conducting its Strickland prejudice analysis was to assess probabilities—to determine, by weighing the aggravating and mitigating evidence, whether there was a “substantial” likelihood that the outcome of sentencing would have been different had Mostiler conducted a more complete investigation into Pye‘s background. Shinn, 141 S. Ct. at 523. In doing so, the court discounted, to some extent, the affidavit testimony that it received, and factored in the competing evidence that Pye‘s family was generally uncooperative at the time of the trial, the tenuous connection between the mitigating evidence and Pye‘s crimes, and Pye‘s age when he committed those crimes. None of these choices individually resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. And it wasn‘t “so obviously wrong [as to be] beyond any possibility for fairminded disagreement,” id. (quotation marks omitted), for the state court to conclude that on balance, given the significant aggravating evidence, there wasn‘t a substantial likelihood that the jury would have voted for anything less than death even had Mostiler
B
We next consider whether the state court‘s conclusion that Pye wasn‘t prejudiced by Mostiler‘s failure to obtain a mental-health evaluation of Pye or present mental-health evidence at sentencing was either based on an unreasonable determination of the facts or contrary to or an unreasonable application of clearly established federal law. See
To begin, in determining the facts, it was not clearly and convincingly erroneous (or unreasonable more generally) for the state court to view the evidence of Pye‘s alleged brain damage as conflicting and to question the severity of the condition it reflected. One of Pye‘s experts at the state habeas proceeding, Dr. Eisenstein, found that Pye had frontal-lobe impairment and brain damage—which suggested to him that Pye had an impaired ability to plan and control his impulses. But the State‘s expert, Dr. King, testified that the facts of the crime, which involved significant premeditation and planning, were inconsistent with frontal-lobe impairment. The reason, he said, is because individuals with frontal-lobe damage have significant “disinhibition of responses and impulses in all areas” and “wouldn‘t choose out a particular victim at a particular time and then engage in premeditation, goal directedness, trying to cover [their] tracks.” Doc. 14-44 at 69. Dr. King testified that the tests conducted by Dr. Eisenstein weren‘t sophisticated enough “to identify that particular kind of specific brain damage,” id. at 68, and he expressed skepticism of the suggestion—made by another of Pye‘s experts, Dr. Pettis—that Pye might have had a “failure to thrive” or “fetal alcohol syndrome,” id. at 72–73. Still, Dr. King agreed that even though Pye didn‘t meet the threshold for mental retardation, he had cognitive “deficits in a number of areas” that would have “affect[ed] his ability to function in the community.” Id. at 80. While the state court didn‘t explicitly make a factual finding about Pye‘s alleged brain damage, it would have been reasonable for it to find that, given the testimony presented, he had cognitive deficits but not frontal-lobe impairment or fetal-alcohol syndrome.
It was reasonable for the state court to conclude based on these facts that there wasn‘t a substantial probability that the presentation of mental-health evidence would have changed the outcome of Pye‘s sentencing. While Pye may be correct in arguing that the only reasonable factual conclusion based on the evidence presented at the state habeas proceeding is that he has cognitive deficits, that doesn‘t mean that it was unreasonable for the state court to find that no prejudice resulted from the failure to present this mental-health evidence at sentencing. Given the fact that Pye had sufficient mental faculties to “plan a robbery,” “le[a]d two fellow co-defendants in the kidnapping, rape, and murder of his former girlfriend,” “attempt[] to avoid detection by authorities through disposal of the murder weapon and accessories,” and “fabricate[] an alternative sequence of events,” Doc. 20-40 at 62, and in light of the aggravating factors already described, the jury could well have been unmoved even if Mostiler had obtained a mental-health evaluation and presented an expert‘s testimony about Pye‘s cognitive deficits. It wasn‘t unreasonable for the state court to find that there wasn‘t a substantial likelihood of a different sentencing outcome
The state court‘s prejudice determination regarding the mental-health evidence also didn‘t contradict or unreasonably apply clearly established federal law. There is no per se rule that the failure to present evidence of a defendant‘s cognitive defects at sentencing is prejudicial for purposes of the Strickland ineffective-assistance analysis. While Pye cites Porter, that case noted that “it was not reasonable to discount entirely the effect” that the defendant‘s mental-health expert‘s testimony might have had on the jury. 558 U.S. at 43 (emphasis added). And here, “[n]othing in the opinion” of the state court “suggests that the mitigating effect of [Pye‘s] mental health problems was ‘discount[ed] entirely.‘” Evans, 703 F.3d at 1330 (quoting Porter, 558 U.S. at 43). Porter didn‘t create a per se rule that the failure to present evidence of brain damage or cognitive defects is always prejudicial; rather, it held only that in that case, given that particular petitioner‘s brain damage, the failure to present mental-health evidence was prejudicial. 558 U.S. at 43–44; see also Richter, 562 U.S. at 101 (explaining that in evaluating whether a state court‘s application of federal law was unreasonable, “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations“); Knowles, 556 U.S. at 123 (noting that Strickland is a “general standard“). And the petitioner in Porter, in contrast to Pye, presented largely unrebutted evidence that he had PTSD from his military service that “could manifest in impulsive, violent behavior,” “suffered from an extreme mental or emotional disturbance,” and “was substantially impaired in his ability to conform his conduct to the law.” 558 U.S. at 36.21
Moreover, in addition to
Given the conflicting evidence about the extent of Pye‘s mental-health issues and the lack of clearly established federal law requiring a finding of prejudice based on the failure to present evidence of cognitive deficits, the state court‘s conclusion on this issue was not “so obviously wrong [as to be] beyond any possibility for fairminded disagreement.” Shinn, 141 S. Ct. at 523 (quotation marks omitted).
C
We must next determine whether it was unreasonable for the state court to conclude that Pye suffered no prejudice as a result of Mostiler‘s failure to rebut the State‘s argument about his future dangerousness in prison. It was not.
Pye‘s argument rests largely on the state post-conviction testimony of two corrections officers—Ellenberg and Pittman—who supervised Pye during his prior incarceration as part of a youthful-offender program. See En Banc Br. of Appellant at 50–51 (citing Doc. 16-24 at 49, 70–71). But even assuming the truth of these officers’ testimony—that they didn‘t consider Pye a security concern and that he was less dangerous than most inmates they encountered it was reasonable for the state court to conclude that this sort of evidence wouldn‘t have been substantially likely to change the outcome of sentencing for three reasons: (1) prison records show evidence of Pye‘s insubordination and aggressiveness; (2) Pye became increasingly violent after his first incarceration; and (3) further evidence that Pye wasn‘t a violent person would have been cumulative.22
First, the prison records. It was not clearly and convincingly erroneous for the state court to conclude that these records indicated that Pye had a “history of insubordination, aggressiveness and propensity
Pye disputes the state court‘s characterization of his prison behavior, arguing that there‘s no record indicating that he was ever violent toward prison personnel. See En Banc Br. of Appellant at 51. He describes one incident in which he fought with another inmate as being mere horseplay that didn‘t result in any injuries and asserts that the prison found him not guilty of assault in connection with another incident in which he fought an inmate. Id.; see Docs. 15-19 at 51; 15-20 at 8. But Pye doesn‘t dispute that his prison records contain many instances of insubordination.
Overall, Pye hasn‘t rebutted by clear and convincing evidence that his prison records “indicate a history of insubordination, aggressiveness and propensity for violence toward those in authority.” Doc. 20-40 at 61. It may be debatable whether one should infer from Pye‘s October 12, 1989 incident with prison staff and his altercations with other inmates that Pye had a history of “aggressiveness and propensity for violence toward those in authority.” But Pye has not rebutted the presumption of correctness that AEDPA affords to state-court determinations of fact. See
Second, the mitigating value of the officers’ testimony. Testimony from witnesses like Ellenberg and Pittman about Pye‘s behavior in prison likely would have had minimal value in swaying the sentencing jury. Ellenberg and Pittman knew Pye only during his incarceration in the youthful-offender program at Lee Arrendale Correctional Facility for several years in the late 1980s. But Pye admits that when he aged out of that program and was transferred to Frank Scott Correctional Institute23 in 1988, “[h]is behavior became agitated and he incurred disciplinary reports for insubordination.” Doc. 43 at 63. So, even if Officers Ellenberg and Pittman had testified at Pye‘s sentencing, they wouldn‘t have been able to speak to Pye‘s behavior at Frank Scott, and the State could have painted a picture of Pye as a man who became increasingly troubled and violent as he got older. And, of course, at the time of sentencing, the jury had just concluded—contrary to the officers’ testimony—that Pye had violently raped and murdered Alicia Yarbrough. Thus, there is little chance that the officers’ testimony would have swayed any member of the jury:
Third, cumulativeness. During sentencing, Pye‘s sister and father both testified that he was not violent, and several other witnesses testified about his kindness. This testimony would have served as a counterweight to the State‘s argument about Pye‘s future dangerousness. Further evidence from corrections officers as to Pye‘s nonviolent nature would have been at least partially cumulative. See Cullen v. Pinholster, 563 U.S. 170, 200 (2011). The fact that the jury heard some testimony that Pye was generally nonviolent further supports the reasonableness of the state court‘s conclusion that Pye wasn‘t prejudiced by Mostiler‘s failure to discover and present testimony like that offered by Ellenberg and Pittman at the state post-conviction proceedings.
Together, these factors make it unlikely that the corrections officers’ testimony would have changed the outcome of Pye‘s sentencing. At the very least, it wasn‘t unreasonable for the state court to conclude that there wasn‘t a “substantial likelihood” that the presentation of such testimony would have resulted in a different sentence. Shinn, 141 S. Ct. at 524.
D
Finally, Pye contends that he was prejudiced by Mostiler‘s failure to present evidence of Alicia Yarbrough‘s cocaine habit—including evidence that she had cocaine in her system the night she died—and testimony from Linda Lyons that Alicia called Pye on the night of her murder. See En Banc Br. of Appellant at 62–68. Pye frames this as residual-doubt evidence that he says would have supported his story that Alicia voluntarily met him at the motel to trade sex for drugs—negating the aggravating circumstances of the rape and kidnapping committed alongside Alicia‘s murder—and that it could have persuaded the jury not to impose the death sentence. But even if Mostiler should have presented this additional evidence supporting Pye‘s version of events during the guilt or penalty phase of trial, it was reasonable for the state court to conclude that his failure to do so wasn‘t prejudicial.
To begin, it wasn‘t clearly and convincingly erroneous for the state court to find that Lyons‘s post-conviction affidavit testimony was unreliable. In this affidavit, Lyons—Alicia‘s friend and neighbor—said that Alicia called a local motel from Lyons‘s house and that Lyons heard her ask for Pye‘s room and arrange for someone to pick her up—presumably to get drugs. See Doc. 16-24 at 66. The state court pointed out the inconsistency between this statement and what Lyons told a police investigator about 12 hours after seeing Alicia for the last time: Lyons heard Alicia call “someone” at a local motel and “ask for room #27,” and Alicia told the “unknown party” on the other end of the line that she “was going to call the police on them for selling drugs out of the motel.” Doc. 12-9 at 3. The lack of positive identification of the person Alicia was calling and Alicia‘s threat to call the police on that person—a relevant fact not reported in Lyons‘s post-conviction affidavit, see Doc. 16-24 at 66—are significant differences between Lyons‘s initial story and the affidavit she prepared years later for the state habeas proceedings. Given these discrepancies, it wasn‘t clearly and convincingly erroneous for the state court to find that Lyons‘s habeas affidavit testimony was unreliable.
E
Even if the state court‘s prejudice determination as to each ground of allegedly deficient performance was reasonable, we must still decide whether its conclusion as to the cumulative prejudice, constituted an unreasonable application of Strickland. See Strickland, 466 U.S. at 694–96; United States v. Blakey, 14 F.3d 1557, 1561 (11th Cir. 1994) (discussing cumulative effect of counsel‘s errors). This question asks whether it was reasonable for the state court to conclude that there was no substantial likelihood that at least one juror would have voted against imposing the death penalty had Mostiler not committed all the errors that Pye alleges (and we assume) that he committed—i.e., if Mostiler had conducted a more thorough investigation of Pye‘s background and presented additional evidence of his neglected and (possibly) abusive childhood, discovered and presented evidence of Pye‘s cognitive deficiencies, offered testimony about Pye‘s generally nonviolent behavior when he was previously incarcerated, and introduced additional residual-doubt evidence. But even considering Mostiler‘s alleged deficiencies cumulatively, it wasn‘t unreasonable for the state court to conclude that Pye has failed to establish prejudice: The
extensive aggravating circumstances of Pye‘s crimes weighed heavily in favor of the jury imposing a death sentence, and the difficulties already described, which prevent Pye from establishing prejudice with respect to any individual deficiency—including
Given the reasonableness of the state court‘s weighing of the evidence and the lack of contrary precedent, AEDPA requires us to defer to that court‘s cumulative-prejudice conclusion because it wasn‘t contrary to or an unreasonable application of the Supreme Court‘s precedents, based on an unreasonable determination of the facts, or “so obviously wrong that its error lies beyond any possibility for fairminded disagreement.” Shinn, 141 S. Ct. at 523 (quotation marks omitted); see
IV
In conclusion, a brief word about today‘s dissent—which like so (so, so, so) many before it, is framed around an extended allusion to Lewis Carroll‘s Alice-based novels. See Parker B. Potter, Jr., Wondering About Alice: Judicial References to Alice in Wonderland and Through the Looking Glass, 28 Whittier L. Rev. 175 (2006) (noting that, as of almost 20 years ago, some 1000 judicial opinions had referenced Carroll‘s works). What the dissent lacks in originality, it more than makes up for in spice. It accuses us of all manner of things—peddling “[n]onsense,” Dissenting Op. at 18, “bury[ing]” unreasonable legal conclusions and factual findings, id. at 3, 35, “nullif[ying]” Supreme Court precedent, id. at 16, and “invent[ing]”
Our dissenting colleagues’ objections notwithstanding, the fact is that the standard embodied by
Put simply, we have the power to overturn a state court‘s decision on the merits of a petitioner‘s habeas claim only in rare circumstances. Pye has not shown that this is one of them.
The district court‘s denial of habeas relief with respect to Pye‘s ineffective-assistance-of-counsel-at-sentencing claim is AFFIRMED and the case is REMANDED to the panel for proceedings consistent with this opinion.
JORDAN, Circuit Judge, joined by ROSENBAUM, Circuit Judge, concurring in the judgment:
I join Parts I and II of Judge Jill Pryor‘s dissent (with the exception of the last paragraph on page 30). But despite reservations with the majority opinion, I concur in the judgment denying Mr. Pye habeas relief, and write to explain why.
In deciding this appeal, the majority resolves an important issue of first impression in our circuit—the relationship between
Like the panel, and as set forth in Judge Jill Pryor‘s dissent, I think the state court made a number of significant and unreasonable factual determinations. See Pye v. Warden, 853 F. App‘x 548, 562-63, 566-67 (11th Cir. 2021); Jill Pryor Dissent at 35–49. I would conduct plenary review as to the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687 (1984), and deny relief because Mr. Pye has not made the requisite showing. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in a de novo standard when it is unclear whether AEDPA deference applies because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review[.]“).
To show prejudice under Strickland, Mr. Pye must demonstrate “a reasonable probability that, but for his counsel‘s ineffectiveness, the jury would have made a different judgment,” and because Georgia law requires a unanimous jury recommendation of death the focus is on whether one juror would have come to a different conclusion. See Andrus v. Texas, 140 S. Ct. 1875, 1886 (2020). Although the reasonable probability standard does not require Mr. Pye to show that his counsel‘s performance more likely than not affected the outcome, the likelihood of a “different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111–12 (2011).
Each capital case, and every capital defendant, is different. Generalizations, at least when it comes to the prejudice determination, are therefore difficult to make. For me, this is one of those cases in which the totality of the new mitigating evidence—taking into account some of its limitations and its partly contested nature—does not satisfy the reasonable probability standard. When juxtaposed against the brutality and cruelty of the premeditated kidnapping, gang rape, and murder of Ms. Yarbrough—whose child Mr. Pye claimed was his—after her plea for mercy, I do not believe there is a substantial likelihood that one juror would have made a different recommendation as to punishment. In other words, there is not a reasonable probability that one juror would have “concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695. Cf. Krawczuk v. Secretary, 873 F.3d 1273, 1297–98 (11th Cir. 2017) (“[U]nder de novo review, we readily conclude that Krawczuk failed to establish a reasonable probability that, had he presented the above mitigating evidence [abandonment, isolation, lack of supervision, neuropsychological damage, mental disorders, emotional and physical abuse, depression symptoms, and sexual abuse by strangers on one occasion] the outcome of the proceedings would have been different. . . . In reaching this conclusion, we weigh the totality of the mitigating evidence against the aggravating factors, considering the substantial weight due to aggravation in light of the brutal nature of [the] murder. . . . Krawczuk‘s cruelty and premeditation make it unlikely that he would have received a different sentence.“).
The Strickland prejudice analysis is, of course, a predictive human endeavor based on a hypothetical construct. See Evans v. Secretary, 703 F.3d 1316, 1334 (11th Cir. 2013) (en banc) (Jordan, J., concurring). But it is the framework the Supreme Court has given us, and the one we must apply.
JILL PRYOR, Circuit Judge, joined by WILSON, Circuit Judge, dissenting:
When she stepped through the looking glass, Alice found a world of opposites, nonsense, and “impossible things.”1 Walking
Willie James Pye was convicted of an aggravated crime. He brutally raped and murdered his former girlfriend. Despite overwhelming evidence to the contrary, Mr. Pye maintained his innocence and insisted on a defense strategy focused on proving it. When Mr. Pye‘s family members understandably were uncooperative in helping him try to prove the unprovable in the guilt phase of his trial, Mr. Pye‘s lawyer, Johnny Mostiler, and investigator, Dewey Yarbrough, largely gave up on attempting to rally the family members for the penalty phase, to save their client‘s life. The majority opinion does not defend trial counsel‘s performance, so I will not go on about his shortcomings in this case. Suffice it to say that after presenting a meager case in opposition of the death penalty, Mr. Mostiler gave a canned closing argument that his opposing counsel anticipated and rebutted, to disastrous result.
Rather than defending trial counsel‘s performance, the majority opinion concludes that Mr. Pye has failed to show prejudice—or, more precisely, that the state habeas court‘s determination that he hadn‘t shown prejudice was not, in AEDPA‘s terms, “contrary to” and did not “involve[] an unreasonable application of, clearly established Federal law“; nor was it “based on an unreasonable determination of the facts.”
The majority opinion‘s first move is to declare that federal courts may find that a reasoned state court decision withstands AEDPA deference by turning to justifications the state court never even hinted at. This is the opposite of what the Supreme Court has instructed, and the majority‘s attempt to wiggle out from under Supreme Court precedent is unconvincing. The majority opinion supports its declaration with a half-baked textual analysis. And it relies on cases holding—uncontroversially—that a state court‘s decision is not unreasonable just because it did not address and reject each one of a petitioner‘s arguments and pieces of evidence supporting his claims. To turn this unremarkable principle into support for its holding, the majority must refract the light shed by these cases beyond what the laws of nature allow.
Second, the majority opinion holds—on an issue of first impression in this Court that was never briefed or argued by the parties—that a state court‘s findings of fact may be clearly erroneous but not sufficiently important to meet the “unreasonable” AEDPA standard. Even if we assume for argument‘s sake that this holding is correct, when combined with the majority opinion‘s disregard of Supreme Court precedent requiring us to review exclusively the reasons the state habeas court actually gave, the holding creates a practically impossible path to relief for habeas petitioners.
In Part I, I describe what happened in this case. Although the majority opinion mostly gets the facts right, I will highlight some nuances that, I think, the majority opinion has missed. In Part II, I describe habeas review under AEDPA and explain the majority opinion‘s major errors in describing AEDPA deference. In Part III, using the proper AEDPA analysis, I examine the state habeas court‘s decision and conclude that de novo review of the prejudice to Mr. Pye‘s defense is warranted. In Part IV, I demonstrate why, on a de novo review, Mr. Pye has shown prejudice. In Part V, I conclude by summarizing the majority‘s errors and the impact they will have unless the Supreme Court sets us right again.
I. BACKGROUND
As the majority opinion recounts, the facts of Mr. Pye‘s crime are indeed aggravated. Mr. Pye had dated the victim, Alicia Lynn Yarbrough, on and off for a time.4 When the crime was committed, however, Ms. Yarbrough was living with another man, Charles Puckett, and their infant. Mr. Pye and two associates, Chester Adams and Anthony Freeman, drove to the home of Ms. Yarbrough and Mr. Puckett, apparently intending to rob Mr. Puckett. Mr. Pye was angry that Mr. Puckett had signed the birth certificate of Ms. Yarbrough‘s child, whom Mr. Pye believed was his child. When they arrived, Mr. Puckett was not at home; Mr. Pye forcibly took Ms. Yarbrough from the home, leaving the infant behind. The three men drove to a hotel and rented a room, where each man repeatedly raped Ms. Yarbrough. The men eventually took Ms. Yarbrough from the hotel room, put her into Mr. Adams‘s car, and drove away from the hotel. At Mr. Pye‘s direction, Mr. Adams pulled the car onto a dirt road. Mr. Pye ordered Ms. Yarbrough out of the car, made her lie face down, and shot her three times as she begged for her life. She died of the wounds. Mr. Freeman confessed and implicated the other two men.
The trial court appointed Mr. Mostiler, the county public defender, to represent Mr. Pye. Mr. Mostiler was assisted by Mr. Yarbrough. Mr. Pye maintained his innocence, despite the overwhelming evidence of his guilt, and testified in his own defense. The jury found him guilty.
At the trial‘s penalty phase, the State presented testimony from three witnesses who collectively spoke about Mr. Pye‘s previous conviction and incarceration for burglary, reputation for violence about a decade before the murder, and a previous violent altercation involving Ms. Yarbrough. Mr. Mostiler presented testimony from eight lay witnesses: Mr. Pye‘s sister Pam Bland, sister Sandy Starks, brother Ricky Pye, father Ernest Pye, 15-year-old niece Cheneeka Pye,5 nephew Dontarious Usher,6 sister-in-law Bridgett Pye, and family friend Lillian Buckner. These witnesses
Mr. Mostiler asked a couple of the witnesses about Mr. Pye‘s early life. Ms. Starks testified that she and her siblings were raised in a house with no “running water in the bathroom” and only a “wooden heater.” Id. at 67. But Ms. Bland testified that the family “had a four-bedroom” home. Id. at 30. And Ms. Starks told the jury that, above all, the family “had love.” Id. at 67.
In closing, the prosecutor—who had tried several capital cases against Mr. Mostiler—anticipated what Mr. Mostiler would say to the jury in defense of Mr. Pye‘s life, down to the letter. He told the jury Mr. Mostiler would quote from William Shakespeare‘s The Merchant of Venice, “the quality of mercy is not strained,” and from the Bible‘s Beatitudes, “blessed are the merciful for they shall obtain mercy.” Id. at 83. Mr. Mostiler did exactly that, revealing that he had not bothered to tailor his argument to Mr. Pye‘s case.
The prosecutor also relied on some old tricks. As he had in previous cases he had tried against Mr. Mostiler, he told the jury that, if left in prison for life, Mr. Pye would “for sure kill a guard to get out.” Id. at 86–87. Even though Mr. Mostiler well knew that the prosecutor had used this argument in previous cases, Mr. Mostiler had nothing prepared to refute the prosecutor‘s assertion. He simply told the jury that Mr. Pye wouldn‘t kill a prison guard. A classic “just trust me” with nothing to back it up.
The jury did not just trust Mr. Mostiler. After finding four statutory aggravating factors, the jury unanimously recommended a sentence of death, which the trial court imposed.
After Mr. Pye‘s convictions and sentence were upheld on direct appeal, he sought postconviction relief in state court. This en banc proceeding is concerned with only one of Mr. Pye‘s postconviction claims: that his trial counsel rendered ineffective assistance in failing to investigate and present mitigating evidence at the penalty phase of his trial, including evidence of his family background, mental health challenges, and cognitive impairment, as well as evidence to “counter the State‘s evidence of aggravated culpability.” Rompilla v. Beard, 545 U.S. 374, 380–81 (2005).8
To prove his claim in state court, Mr. Pye was required to demonstrate that trial counsel‘s performance fell “below an objective standard of reasonableness,” taking into account prevailing professional norms, and that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Mr. Pye presented evidence of deficient performance and resulting prejudice, but because the majority opinion assumes Mr. Mostiler performed deficiently, I do not recount the evidence relating solely to that element
At the postconviction evidentiary hearing, Mr. Yarbrough testified about the defense team‘s work on Mr. Pye‘s case. He testified that the primary focus of the defense was to prove Mr. Pye‘s innocence, a strategy Mr. Pye insisted upon. Mr. Yarbrough testified that Mr. Pye told him “to go out and contact his family members,” and so he contacted four or five of them, including Mr. Pye‘s mother, father, and two to three siblings. Doc. 19-11 at 23. Mr. Yarbrough testified that the family “didn‘t put any effort forth on any of the contacts I made with them.” Id. at 24. He recalled one family member saying “that [Mr. Pye] got himself into this, [and] he can get himself out of it.” Id. When asked to explain “[h]ow . . . the lack of family involvement affect[ed the] investigation,” Mr. Yarbrough clarified that the family was unhelpful “as far as helping prove [Mr. Pye‘s] innocence.” Id. at 24–25 (emphasis added); see id. at 25 (“[T]hey were not willing to . . . put the effort forward to prove what I was trying to prove that I was told to try to prove by Willie.“). Mr. Yarbrough recounted: “I can remember thinking, and I want to say this was during, right before the sentencing phase, you know, I just don‘t care about going back over there and trying to get them here.” Id. at 25 (emphasis added).
At the hearing, habeas counsel offered undisputed evidence that Mr. Pye is of low intellectual functioning, bordering on intellectual disability.9 They also offered undisputed evidence that
Mr. Pye has suffered from depression for nearly all his life. And counsel offered undisputed evidence through affidavits that Mr. Pye experienced a traumatic childhood and adolescence, during which physical and emotional abuse, extreme parental neglect and endangerment, and abject poverty pervaded his daily life, as well as a resulting troubled adulthood. Finally, habeas counsel introduced evidence that Mr. Pye previously had adapted well to carceral life and had been trusted by prison staff.
The state habeas court denied Mr. Pye‘s habeas petition, concluding, as relevant here, that he failed to show that any deficient performance by Mr. Mostiler prejudiced him. The court found that evidence of low intellectual functioning would not have swayed the jury. The court noted the affidavit testimony rebutting the State‘s contention of future dangerousness but emphasized that Mr. Pye‘s corrections records showed several instances of insubordination and aggression. The court thus found no reasonable probability that Mr. Pye‘s resulting sentence would have been different had the jury heard positive testimony about his adaptation to prison.
The state habeas court also concluded that trial counsel‘s failure to investigate and present evidence of Mr. Pye‘s family background did not cause prejudice. The majority opinion characterizes the state habeas court‘s conclusion as based on five reasons: (1) the state habeas court‘s “decision to discount the affidavit evidence presented at the state post-conviction proceedings due to concerns about their credibility“—specifically, supposed “artful drafting“; (2) “evidence of Pye‘s family‘s unwillingness to cooperate in his defense
the state habeas court denied Mr. Pye relief from his death sentence.
After the Supreme Court of Georgia denied Mr. Pye a certificate of probable cause to appeal the state habeas court‘s order, Mr. Pye filed a federal habeas petition. Focusing primarily on prejudice, the district court rejected the petition but granted Mr. Pye a certificate of appealability on the claim we address today. After briefing, and with the benefit of oral argument, a panel of this Court—of which I was a member—held that the state habeas court‘s rejection of Mr. Pye‘s ineffective-assistance-of-counsel claim was contrary to and involved an unreasonable application of clearly established federal law and was based on unreasonable factual determinations in light of the state court record. See
II. AEDPA
AEDPA was enacted in 1996 in part to streamline the federal review of state prisoners’ habeas petitions, but in practice the statute has done anything but.12 Its abstruse language also has left much to the imagination and rumination of jurists and litigants alike throughout the more than quarter of a century it has been in place.
Titlow, 571 U.S. 12, 18 (2013).13 The majority and I disagree, however, on how that “highly deferential” review should be conducted.
Several years ago, our Court fractured over how to apply
The Supreme Court overruled our en banc decision, holding that
Wilson controls this case. Here, as there, a reasoned Georgia state court decision was followed by an unreasoned denial from the Supreme Court of Georgia of a certificate of probable cause to appeal. Here, as there, we must “train [our] attention on the particular reasons—both legal and factual—why the state habeas court rejected Mr. Pye‘s ineffective-assistance-of-counsel claim and “defer[] to those reasons” only, I repeat, only “if they are reasonable.” Id. at 1191-92. Wilson commands us to review a limited universe—the state habeas court‘s seven reasons, which I described above. So our task in this appeal consists of three steps: (1) look at these seven reasons, (2) defer to them if they are reasonable, and (3) if they are not, conduct a de novo review.
Reading the majority opinion, you would at first think the majority and I agree about Wilson‘s direct application to this case. See Maj. Op. at 12-13. Turn the page, though, and the majority opinion veers into another world entirely, one where “things go the other way.”14 Despite Wilson‘s clear dictate that we examine the particular reasons the state habeas court actually provided “and defer[] to those reasons if they are reasonable,” Wilson, 138 S. Ct. at 1192 (emphasis added), and the majority‘s apparent acceptance of this rule, see Maj. Op. at 15, the majority opines that we can “consider any potential justification” for the state court‘s decision. Maj. Op. at 16 (emphasis added). In other words, according to the majority we can examine what “could have supported” the state court‘s decision. Richter, 562 U.S. at 102. This violates step 1, above. And then, the majority says,
This feels like deja vu. Compare Wilson, 834 F.3d at 1247-49 (Jill Pryor, J., dissenting), with id. at 1235-36 (majority opinion), overruled sub nom. by Wilson, 138 S. Ct. at 1195-96.15 How does the majority opinion attempt to justify its nullification of Wilson? In a two-part gambit.
First, the majority opinion sidesteps Wilson‘s dictate that we focus exclusively on the reasons a state court supplied by imagining two categories of support for a state-court decision: reasons and justifications. Reasons, the majority says, are high-level determinations like “the petitioner wasn‘t prejudiced by his counsel‘s deficient performance.” Maj. Op. at 16. Justifications, the majority says, are something more granular—like why the petitioner was not prejudiced. So, the majority surmises,
This distinction between reasons and justifications is nonexistent in the caselaw, and that should come as no surprise. Justifications are not different from reasons, they are reasons. Black‘s Law Dictionary defines “justification” as “[a] lawful or sufficient reason for one‘s acts or omissions.” Justification, Black‘s Law Dictionary (11th ed. 2019) (emphasis added). Merriam-Webster defines the term to mean “the showing in court of a sufficient lawful reason why a party charged or accused did or failed to do that for which he is called to answer,” or “something that constitutes such a reason.” Justification, Merriam-Webster Unabridged (emphasis added). The Oxford English Dictionary defines “justification” as “The action of or result of showing something to be just, right, or reasonable; vindication. Also: the grounds on which this is done; a justifying circumstance; a good reason.” Justification, Oxford English Dictionary (emphasis added).
So if a federal court is tasked with reviewing only the state court‘s reasons, so too is it tasked with reviewing only its justifications. They are one and the same.
Second, the majority opinion casts aside, or diminishes to meaninglessness, its admission that ”Wilson instructs us to review[] the specific reasons given by the state court and defer[] to those reasons if they are reasonable.” Maj. Op. at 15 (quoting Wilson, 138 S. Ct. at 1192). Now, the majority opines, “only” the decision, id. at 1195-96; see Maj. Op. at 18-19 (emphasis in original)—the “you win or you lose” on the claim—gets
If the majority opinion is correct, then Wilson‘s look-through rule does no work. Whether the majority is saying that we defer only to the ultimate decision of the lower state court, or that we defer to the ultimate decision despite any wrong-beyond-fairminded-disagreement reasoning, examining a state court‘s reasoning would be a meaningless, make-work exercise. That is because we could always skip that step and start making up reasons to support the state court‘s decision. This Court‘s en banc majority in Wilson would have been correct because federal courts would have no need to train their attention on a state court‘s reasons when they could just imagine their own, perhaps better, reasons why a claim would fail. In the same vein, the Supreme Court would have had no occasion to take the case, and Wilson would not exist.
Nor, to be clear, do I suggest that we can never consider reasons supporting a state habeas court‘s decision that the state court did not provide. If we conduct a de novo review of the record, either by assuming that standard applies or after concluding that the state court‘s decision does not withstand
Building on the shaky foundation of its feeble reasons-versus-justifications distinction, outdated view of Richter‘s scope, and partial textual analysis, the majority seeks to buttress its deference-at-every-turn holding with our previous decisions. But those decisions stand only for the wholly unremarkable principle that a state court‘s decision that otherwise is reasonable is not unreasonable simply because it fails to discuss every fact or argument a petitioner advances. Maj. Op. at 16-17 (citing Lee v. Comm‘r, Ala. Dep‘t of Corr., 726 F.3d 1172 (11th Cir. 2013); Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335 (11th Cir. 2019)). It does not follow from this principle, however, that we can rely on and give deference to reasons never mentioned by the state habeas court to conclude that the decision withstands
The majority opinion quotes our decision in Lee v. Commissioner for the proposition that we may “examine what other ‘implicit findings’ the state court could have made in its denial of a federal claim.” Lee, 726 F.3d at 1223; see Maj. Op. at 16-17. Divorced from the context of the lengthy Lee opinion, this language may seem alluring. But in Lee, a case we decided before the Supreme Court decided Wilson, the petitioner argued that the state postconviction court‘s decision involved an unreasonable application of clearly established law “because
The majority opinion extrapolates from Lee that it can consider unlimited reasons unstated by state habeas courts. But even setting aside the illogic of this extrapolation—that because we should not flyspeck state court opinions, we can violate Wilson‘s express dictates—the reasons the majority opinion invents to prop up the state habeas court‘s decision were in no way “necessary” to the state habeas court‘s ruling. See, e.g., Maj. Op. at 38 n.14 (citing the supposed lack of evidence corroborating affidavit testimony, a reason the state habeas court did not provide and that is not necessary to its rejection of the affidavits), 53-54 & n.22 (holding that it was reasonable for the state habeas court to conclude that evidence to rebut future dangerousness would not have been substantially likely to change the outcome of Mr. Pye‘s sentencing “for three reasons,” two of which the state habeas court did not mention, and were not necessary to the state court‘s conclusion). Thus, they are not “implicit findings” of the type Lee contemplated. To read Lee any more broadly—that is, to read Lee to permit what the majority opinion undertakes—is to violate Wilson.
The majority opinion laments that Wilson‘s rule as I see it “would incentivize state courts to issue unreasoned, summary decisions as a means of guaranteeing maximum
Lastly, the majority says my position conflicts with “the overwhelming consensus position” of our sister circuits. Maj. Op. at 21. In support, the majority opinion cites a recent Fifth Circuit case collecting (the majority fails to mention) pre-Wilson decisions of the First, Second, Sixth, Seventh, Eighth, and Tenth Circuits, as well as one from our Court. Sheppard v. Davis, 967 F.3d 458, 467 n.5 (5th Cir. 2020).21 Of course, we are obliged to follow Wilson, as intervening Supreme Court precedent, not decisions that predated it.
Just as importantly, the majority opinion fails to acknowledge that several of these circuits, and others whose decisions Sheppard did not cite, have refined their approach in the wake of Wilson. See, e.g., Porter v. Coyne-Fague, 35 F.4th 68, 74-75 (1st Cir. 2022) (citing Wilson‘s requirement that federal courts defer to the “specific reasons” given by the state court, examining those reasons, concluding that they did not withstand
This side of the mirror, Wilson holds true: as a federal court constrained by
Before leaving my discussion of
error or errors were important enough that the state court‘s decision was based on the finding or findings and was unreasonable as a result. See Maj. Op. at 14-15 (citing Hayes v. Sec‘y, Fla. Dep‘t of Corr., 10 F.4th 1203, 1224-25 (11th Cir. 2021) (Newsom, J., concurring)).
Given the irregularity of deciding an issue of such importance without any notice to or briefing by the parties, this should strike anyone paying attention as odd at best. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579, 1581 (2020) (“[C]ourts normally decide only questions presented by the parties. . . . No extraordinary circumstances justified the panel‘s takeover of the appeal.” (alteration adopted) (internal quotation marks omitted)). Worse, the majority opinion uses its newly crafted rule to deny Mr. Pye relief, even though he had no chance to argue against it or that he should prevail under it. This is wrong.
Nevertheless, I believe Mr. Pye should prevail even if the majority opinion‘s reading of the interplay between
I have journeyed far only to return to where I began: AEDPA requires that we must be highly deferential of state court decisions. In cases such as this one, where the state habeas court provided a reasoned decision, we review exclusively the reasons the state habeas court gave for denying relief, deferring to those reasons under
In the next section, I explain why the state habeas court‘s decision was unreasonable under
III. ANALYSIS UNDER AEDPA
Mr. Pye claims that his trial counsel was ineffective in failing to investigate and present evidence about his traumatic childhood and adolescence, mental health problems, and low intellectual functioning. He also claims that his counsel failed to investigate and present evidence to rebut the State‘s claim of future dangerousness. And, he argues, there is a reasonable probability that, had the jury heard this evidence,
Mr. Pye was required to show that his trial counsel rendered deficient performance and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 686, 688, 694. Counsel‘s deficient performance causes prejudice when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In determining whether there is a reasonable probability of a different result, “we consider ‘the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding’ and ‘re-weig[h] it against the evidence in aggravation.‘” Porter v. McCollum, 558 U.S. 30, 41 (2009) (alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 397-98 (2000)). Because AEDPA applies to Mr. Pye‘s claim, the specific question we must ask is whether the state habeas court‘s determination that he failed to demonstrate prejudice “involved” or was “based on,”
Training our attention on the reasons the state habeas court actually supplied in its no-prejudice determination, we must review these seven reasons: (1) there is no reasonable probability that evidence of low intellectual functioning would have swayed one juror; (2) there is no reasonable probability that evidence rebutting the State‘s case of future dangerousness would have swayed one juror because prison records showed instances of insubordination and aggression; and, as to evidence of Mr. Pye‘s family background, the evidence would not have swayed one juror because (3) the affidavit testimony was of little value due to artful drafting; (4) Mr. Pye‘s family was unwilling to cooperate at the time of trial; (5) there was no nexus between Mr. Pye‘s background and the crime he committed; (6) the extensive aggravating evidence; and (7) that because Mr. Pye was 28 at the time of the crimes, the aggravating evidence was extensive, and the evidence of his guilt was overwhelming, remorse was likely to play better than excuses. Several of these reasons were an unreasonable application of clearly established law or represented an unreasonable determination of facts in light of the state court record. See Pye v. Warden Ga. Diagnostic Prison, 853 F. App‘x 548 (11th Cir. 2021). Without reiterating everything in the panel opinion, and because the unreasonableness of three reasons in particular renders the state court‘s decision unworthy of AEDPA deference, I will limit my discussion in this section to reasons 3, 4, and 7.
A. Value of affidavit testimony on mitigation
I begin with reason number 3. The state habeas court gave two reasons for discounting the mitigating evidence in the affidavit testimony Mr. Pye‘s state postconviction counsel amassed. First, the court said, postconviction affidavits usually are unpersuasive, in part because they are artfully drafted long after the fact. Second, the court opined that the affidavits in this case reflected artful drafting because a few of them contained perceived inconsistencies. I will take these in reverse order.
The state habeas court‘s finding that the affidavits in this case reflected artful drafting
In concluding that Curtis had apparently lied in his affidavit about his contact with Mr. Mostiler, the state habeas court omitted with ellipses a key portion of Curtis‘s testimony. Curtis did not testify that no one talked to him before Mr. Pye‘s trial—the contradiction the state habeas court purported to identify given Mr. Mostiler‘s billing records. Rather, after describing the Pye family and Mr. Pye‘s upbringing, he testified that “[n]o one talked to me about any of this before Willie James‘s trial. . . . [Mr. Mostiler] didn‘t get in touch with me or ask me any questions about the house Willie James was raised in or what he was like as a child.” Doc. 16-24 at 83 (emphasis added). After testifying about the mitigating circumstances in Mr. Pye‘s childhood and adolescence, Curtis testified that no one talked to him “about any of this“—“this” being the circumstances to which he had just testified—before trial. He again clarified that no one asked him questions about Mr. Pye‘s childhood and upbringing. Reading his isolated statements about contact with the defense team in context with his entire affidavit makes clear that Curtis never denied meeting with Mr. Mostiler altogether. When read “in light of the evidence presented in the State court proceeding,”
The second affidavit the state habeas court addressed was Mr. Pye‘s brother Ricky Pye‘s. According to the state habeas court, Ricky “testified . . . I never spoke to Mostiler about what to say [at trial], and he didn‘t meet with me or ask me any questions before my turn for testimony.” Doc. 20-40 at 66 (alteration in original) (quoting Ricky Pye‘s affidavit). But, the court continued, “[t]he affidavit makes no mention of Mr. Mostiler‘s one hour interview with him, also approximately one month prior to trial.” Id. The state habeas court‘s statements are literally true, but they lend no evidentiary support to the court‘s finding that the affidavit was misleading. Ricky testified that no one talked to him “about what to say“—what he would testify to—not that no one talked to him at all. Doc. 16-24 at 99; see also id. at 100 (Ricky Pye testifying: “We had it real tough growing up and Mr. Mostiler and Dewey never asked about that.“).
Third was the affidavit of Mr. Pye‘s mother, Lolla Mae Pye. The state habeas court found misleading her testimony that
Nobody ask me all about how I grew up, how I came to be married to Ernest, and how I raised Willie and my other children. I would have been willing to talk about my life with Willie James‘s lawyer or investigator, or with any doctor or psychologist working on his case. I would have told about all the things I described here, and testified to the jury about them if they wanted me to.
Doc. 16-24 at 97 (emphasis added). In context, there is no misleading statement. Lolla Mae stated straightforwardly that she was not asked about the mitigating circumstances to which she had just testified. The state habeas court‘s finding is unreasonable in light of the evidence before it.
The state habeas court found that the fourth affidavit, that of social worker and truancy officer Arthur Lawson, reflected artful drafting. Mr. Lawson initially testified: “I showed up at the home to find [Lolla Mae] intoxicated on many visits. This was equally true when she was pregnant.” Doc. 16-24 at 61. He later submitted a second affidavit in which he clarified how he knew she was intoxicated: “when I visited the home there were indications that she had been drinking by the way she spoke and her general behavior. This was equally true when she was pregnant.” Doc. 20-6 at 17.
Mr. Lawson‘s clarification of the basis for his opinion that Lolla Mae often was intoxicated, if indicative of anything, suggests the very opposite of artful drafting. In tweaking his testimony, Mr. Lawson ensured that the evidence he provided did not overreach the limits of his personal knowledge. In my mind it is beyond fairminded disagreement that Mr. Lawson‘s slight clarification reflected a desire for accurate conveyance of personal knowledge, not artful drafting.
Based on these unreasonable findings of fact about four of the 24 affidavits containing mitigation evidence, the state habeas court decided to discount all of the affidavit evidence about Mr. Pye‘s family background. Doc. 20-40 at 66. Here the majority opinion acknowledges that “for many of the affidavits that speak to [Mr.] Pye‘s childhood neglect and abuse, neither the state court nor the State have offered specific reasons to doubt their truth besides the general concern with ‘artfully drafted’ affidavit testimony collected many years after trial.” Maj. Op. at 36. And this is the point: without any evidence in the record to demonstrate artful drafting, the state habeas court could not reasonably have made a finding that the affidavits were artfully drafted.33 And the state habeas court could not then have a solid foundation upon which to base its decision to discount the evidence contained in these affidavits.
Second, “substantial uniformity” is a stretch. These were not boilerplate affidavits that all recited the same statements. Compare, e.g., Affidavit of Curtis Pye, Doc. 16-24 at 83 (“No one talked to me about any of this before Willie James‘s trial. Johnny Mostiler and his assistant Dewey know me. Mr. Mostiler represented me before. He didn‘t get in touch with me or ask me any questions about the house Willie James was raised in or what he was like as a child. If he had, I would have said all the things I‘ve said in this statement, and I would have testified to all these things if he had asked me to.“), with Affidavit of Ricky Pye, Doc. 16-24 at 99-101 (“[Mr. Yarbrough] didn‘t ask about Willie James and how he came up, or how we all were raised. Dewey never spoke to me about those things. . . . I took the stand to testify later on in [the penalty phase of] the trial. No one talked to me about my testimony before I went. I never spoke to Mr. Mostiler about what to say, and he didn‘t meet with me or ask me any questions before my turn for testimony. . . . We had it real tough growing up and Mr. Mostiler and Dewey never asked about that. . . . If Mr. Mostiler had asked me about these things on the stand, I would have told the jury the same things I‘ve said here.“), and Affidavit of Lolla Mae Pye, Doc. 16-24 at 97 (“No one took the time to talk to me about all anything before Willie‘s trial. Nobody ask me all about how I grew up, how I came to be married to Ernest, and how I raised Willie and my other children. I would have been willing to talk about my life with Willie James‘s lawyer or investigator, or with any doctor or psychologist working on his case. I would have told about all the things I described here, and testified to the jury about them if they wanted me to.“).
Third, and even more to the point, we require a petitioner seeking to substantiate an ineffective-assistance claim for failing to investigate and present evidence of mitigation to show that trial counsel did not contact postconviction witnesses and that the witnesses would have been available to testify at the time of sentencing. See Maj. Op. at 39. If the witnesses had not included this testimony, Mr. Pye‘s claim necessarily would have failed. It cannot be that simply because these two facts—lack of contact by counsel about mitigation and availability to testify at sentencing—are present in every postconviction witness‘s affidavit, the record supports a finding that the affidavits are artfully drafted. Otherwise, this is a “heads I win, tails you lose” scenario that the law surely does not countenance.
The majority opinion makes one last effort to prop up the state habeas court‘s devoid-of-context reading of the four affidavits: it says that the affidavits “lack . . . corroborating evidence in the contemporaneous records—particularly regarding whether Pye was subject to regular physical abuse.” Maj. Op. at 38 n.14. As
B. Willingness of Mr. Pye‘s family to cooperate with trial counsel
As reason 4, the state habeas court found that “the family was not cooperative with the defense team during the pre-trial investigation.” Doc. 20-40 at 64. From that finding, the court surmised that counsel did what he could with what little he had. Thus, the court concluded, Mr. Pye had not shown prejudice because trial counsel “did learn, to some extent, of the family‘s impoverished circumstances” and presented those facts through Mr. Pye‘s sisters. Id. It is of course true that trial counsel had some limited awareness of the family‘s poverty and hinted at it in the penalty phase. But the state habeas court‘s factual premise that Mr. Pye‘s family members were uncooperative in the mitigation investigation finds no support in the record. Seven of Mr. Pye‘s family members testified at the penalty phase, so it cannot be that the entire family was uncooperative when it came to sentencing. Further, every family-member affiant testified under penalty of perjury that he or she would have been willing to speak to the defense team about mitigation before trial, and nothing in Mr. Yarbrough‘s testimony about the family‘s uncooperativeness in proving Mr. Pye‘s innocence called that testimony into question.
In concluding otherwise, the majority opinion cites record evidence that, it says, renders the state court‘s finding reasonable. First, the majority opinion points to an undated memo from Mr. Mostiler‘s file noting that “Willie‘s brothers did not respond to my phone calls.” See Maj. Op. at 39 (citing Doc. 19-11 at 93). We know from the record, however, that Mr. Pye‘s brother Ricky Pye cooperated with the defense because he testified at the penalty phase. Plus, the very next sentence in Mr. Mostiler‘s memo was: “Willie‘s sister Pam Bland is a good witness.” Doc. 19-11 at 93. And we know Ms. Bland cooperated with the defense because she, too, testified at the penalty phase. In context, then, Mr. Mostiler‘s undated note—which contains no information about the duration or timing
Second, the majority opinion says, Mr. Yarbrough testified that the family members were uncooperative. See Maj. Op. at 39-40. Again, in context, Mr. Yarbrough‘s testimony does not support the state court‘s finding as it relates to a case in mitigation because Mr. Yarbrough specified that the family was uncooperative in “helping prove [Mr. Pye‘s] innocence,” Doc. 19-11 at 24-25,35 not in the investigation of mitigating circumstances. By Mr. Yarbrough‘s own testimony, he simply didn‘t “care” about trying to get Mr. Pye‘s family members to testify during the penalty phase. Id. at 25. The record unmistakably demonstrates that any failure to marshal family support in the penalty-phase investigation and presentation was due not to the family‘s unwillingness to cooperate but rather to Mr. Yarbrough‘s lack of care.
To sum up on reason 4, the affidavit testimony Mr. Pye introduced in postconviction proceedings about the family‘s willingness to cooperate if only they had been contacted and adequately prepared about a mitigation case based on Mr. Pye‘s family background directly contradicted the supposed evidence that the family was uncooperative. Thus, Mr. Pye has shown by clear and convincing evidence that the state habeas court‘s finding—a finding that the court found to be “especially” important, Doc. 20-40 at 67—was unreasonable.36
C. Remorse as the best strategy given Mr. Pye‘s age
As its seventh reason, the state habeas court found that because Mr. Pye “was 28 years old at the time of the[] crime[], trial counsel could have reasonably decided, given the heinousness of this crime and the overwhelming evidence of [his] guilt, that remorse was likely to play better than excuses.” Doc. 20-40 at 66. But there is no evidence in the record—none—that Mr. Mostiler attempted to or did offer Mr. Pye‘s remorse to the jury as a reason not to sentence Mr. Pye to death. Quite to the contrary. Remorse would have been utterly inconsistent with the defense strategy because Mr. Pye testified in his own defense at trial and denied that he had been present for the rape and murder. At the penalty phase, most of the defense witnesses stated their belief that Mr. Pye was innocent. Mr. Mostiler never mentioned remorse in his closing argument. Thus, the state habeas court‘s conclusion that Mr. Mostiler employed a strategy of remorse which likely played better to the jury than excuses was unreasonable in light of the record. Indeed, even the majority admits this finding was “likely clearly erroneous.” Maj. Op. at 44 n.17.
Acknowledging the state habeas court‘s error, the majority opinion downplays the import of the clearly erroneous finding by characterizing it as a “sideshow” to the more important age-related determination—a “statement” (that remorse was likely to play better than excuses) “nestled in a sub-justification” (that given Mr. Pye‘s age, evidence of his guilt, and the heinousness of the crime, remorse was likely to
In Mr. Pye‘s case the state habeas court cited cases, all predating the Supreme Court‘s decision in Porter, for the proposition that “‘evidence of a deprived and abusive childhood is entitled to little, if any, mitigating weight’ when the defendant is ‘not young’ at the time of the offense.” Doc. 20-40 at 67 (quoting Tompkins v. Moore, 193 F.3d 1327, 1337 (11th Cir. 1999), and Housel v. Head, 238 F.3d 1289, 1295 (11th Cir. 2001), which cited Tompkins); see id. at 67 (also citing Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990), Mills v. Singletary, 63 F.3d 999, 1025 (11th Cir. 1995), and Bolender v. Secretary, 16 F.3d at 1561). These cases all stood for the same proposition: evidence of a deprived and abusive childhood is entitled to “little, if any” (as stated in Tompkins and Dugger), or “insignificant” (as stated in Bolender, cited in Mills) weight when a defendant commits a crime a decade or so after reaching adulthood. These are the same cases the majority opinion now cites to conclude that the state habeas court‘s treatment of Mr. Pye‘s age was reasonable. See Maj. Op. at 43-44.
But these are the very same reasons—indeed, based on the very same cases—that the Supreme Court held to be unreasonable in Porter. Thus, the state habeas court‘s finding was unreasonable under clearly established Supreme Court precedent. Porter, 558 U.S. at 41.37
* * *
The state habeas court‘s numerous consequential unreasonable determinations reflect an “extreme malfunction[] in the state criminal justice system.” Reeves, 141 S. Ct. at 2411 (alteration adopted) (internal quotation marks omitted). Even under the majority opinion‘s reading of the interplay
IV. DE NOVO REVIEW
Typically, once
That leaves prejudice. Here we ask, “whether the entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained the significance of all the available evidence.” Debruce v. Comm‘r, Ala. Dep‘t of Corr., 758 F.3d 1263, 1275 (11th Cir. 2014) (internal quotation marks omitted). Postconviction counsel produced evidence that Mr. Pye suffered severe physical and emotional abuse, neglect, endangerment, and privation as a child. Counsel produced evidence that Mr. Pye began displaying symptoms of depression early in his childhood, depression that followed him into adulthood. Counsel produced evidence that Mr. Pye‘s intellectual capacity is low, bordering on intellectually disabled. This “consistent, unwavering, compelling, and wholly unrebutted” evidence, Ferrell v. Hall, 640 F.3d 1199, 1234 (11th Cir. 2011), “paints a vastly different picture” of Mr. Pye leading up to the crime than the evidence Mr. Mostiler presented to the jury, Debruce, 758 F.3d at 1276. Even in the face of the aggravated crime Mr. Pye committed, and the aggravating evidence presented in the penalty phase, I would conclude, as did the panel, that there is a reasonable probability that at least one juror would have voted for a sentence less than death had the jury heard what we now know about Mr. Pye. See Wiggins, 539 U.S. at 536.
First, the new mitigating evidence. Had Mr. Mostiler adequately investigated and presented a case in mitigation of the death penalty, the jury would have heard that Mr. Pye was raised in abject poverty by parents who managed to feed and clothe their 10 children by the slimmest of margins. The family lived in a kind of poverty rarely witnessed in the United States, occupying a small four-room house with makeshift walls to separate the sleeping areas and no indoor plumbing or central heating.
The jury would have heard that Mr. Pye suffered from extreme neglect. At the time of Willie‘s birth, his mother Lolla Mae struggled as the sole provider for her six children. Her husband Ernest, whom people called “Buck,” was incarcerated and working on a chain gang. Lolla Mae took whatever work she could get, working all the way up until Willie‘s birth and then resuming working immediately afterward. Whether to go to one of her jobs or out drinking (which she did even while pregnant), Lolla Mae typically left Willie alone with his siblings all day. This left the older
The jury would have heard how the Pye home reflected this neglect. According to a police officer, “[t]he conditions were filthy and the rooms in total disarray every time we entered.” Doc. 16-24 at 22. Mr. Lawson, the school‘s social worker, observed that the condition of the house was “deplorable.” Id. at 62. “The house was never clean; piles of filth, scraps and garbage were strewn everywhere.” Id. at 62. On one visit, finding the home “so unsanitary” that it created a risk to “the health of the children“—specifically, “the small children had not been bathed and there was spoiled food sitting around“—Mr. Lawson reported the Pye home to the Department of Family and Children Services (DFACS). Id. at 61-62. DFACS did not intervene.
The jury would have heard that Mr. Pye was raised in a home rife with alcohol abuse and domestic violence. Lolla Mae and Buck drank excessively. Buck, in fact, was notorious around town for his drinking and violent behavior, and Willie and his siblings were ostracized from the community because of the family‘s notoriety.39
Buck was extremely physically violent; “calls [to law enforcement] about violence in the Pye home were constant.” Doc. 16-24 at 20. Buck would hit Lolla Mae and throw things at her in front of the children. On at least one occasion, he attacked Lolla Mae with a knife; on another occasion, he hit her over the head with a bottle. Lolla Mae also was violent toward Buck, sometimes threatening him with a knife.
The jury would have heard that Mr. Pye experienced frequent and often severe physical and emotional abuse at the hands of his father and mother. “Beatings and tirades were [Buck‘s] only interaction with his children.” Id. at 60. His verbal assaults were “downright cruel“: he called the children “worthless” and used “every foul expletive he could manage.” Id. at 21-22. “Willie definitely got the worst of his father‘s nasty comments.” Id. at 26. Buck “would tell Willie that he was so stupid that he just couldn‘t be his kid.” Id. Buck would say “that Willie was born because [Lolla Mae] was messing around while he was in prison, and that he was sick of looking at a kid that belonged to some other guy.” Doc. 16-25 at 2. Buck “would tell the rest of [the Pye] kids that there was stuff wrong with Willie [], and that [they] shouldn‘t pay attention to him, all with Willie standing right in front of him.” Id. Buck also “beat the devil out of [the] children,” and “Willie definitely got the worst of [those] violent outbursts.” Doc. 16-24 at 26, 60. Lolla Mae beat the children too, and although the school‘s social worker Mr. Lawson counseled her about the abuse, she did not stop.
The jury would have learned that as the older Pye boys reached their teenage years, they too began to drink excessively and engage in physical violence, beating their father when he was drunk and abusive. When police responded to calls at the
The jury would have heard that as a child Mr. Pye “took the comments about not belonging to [his] father hard.” Id. “He was quieter and took things to heart. The most important thing to Willie was to be like everyone else, and [Buck] was constantly telling him that he wasn‘t.” Id. When he got upset, Willie “would find any place he could . . . be alone—the bed, the woods, under the porch. Then he‘d lie down and curl up and just stare at nothing.” Id. If a sibling tried to talk to him, he would act like no one was there. Id.
The jury would have learned that Mr. Pye struggled in school because of the home life he experienced and because of his borderline intellectual functioning. Willie often was absent from school because he lacked basic necessities at home: shoes and a place warm enough to dress. When Willie attended school, he performed poorly—in some instances in the lowest one percentile—and attended classes for slow learners. He tried hard but could not succeed, and he left school before the end of junior high. Willie was teased by his peers at school, both because he was behind academically and because he lacked adequate clothing—what little he wore often was shared with his many siblings, was seasonally inappropriate, and was dirty.
The jury would have been informed that Mr. Pye‘s low intellectual functioning was documented into adulthood. After being convicted of burglary and sentenced to prison, notes from the prison psychologist indicated that “[i]ntellectually, [Mr. Pye] is probably in the low average range but his test scores are significantly lower“—for example, he was reading and writing at a fourth-grade level. Doc. 15-19 at 12-13. The psychologist opined that Mr. Pye “may need special ed help, probably in the learning disabled area.” Id. at 11. Mr. Pye asked to be given job training for barbering, but he failed the aptitude test for it. The records stated that Mr. Pye “[a]ppears to need educational upgrading and adjustment prior to retesting.” Id. at 14. The jury would have heard that, unsurprisingly, Mr. Pye was depressed. Again, as a child Willie would run away from his family and disassociate. Even as he reached adulthood, he continued to experience long depressive episodes. While Mr. Pye was serving time for his burglary conviction, the prison psychologist indicated that he was “very depressed,” “severe enough” to warrant medication and “more counse[l]ing than the average.” Doc. 15-19 at 11, 13, 16. When Mr. Pye left prison in 1990, his depressive episodes continued, and, it seems, worsened.
Also of his previous incarceration, the jury would have heard that the prison in which Mr. Pye was first housed, Lee Arrendale Correctional Facility, was dangerous. “New inmates could expect to be terrorized upon arrival by the guys that were already there. Most were either physically or sexually assaulted, or both.” Doc. 16-24 at 50. Mr. Pye, “a smaller guy” who came across as “very weak,” “confused,” and “vulnerable,” was considered by prison staff “to be at risk for victimization.” Doc. 15-19 at 9, 11, 70. Indeed, a former cellmate of Mr. Pye‘s recalled being told that Mr. Pye was raped when he first arrived at the prison.
Finally, had trial counsel adequately investigated and presented a case in mitigation of the death penalty, the jury would not have heard, without the correct context, that Mr. Pye was raised in a “four bedroom house” or that the family “had love” to offset the lack of modern conveniences. The jury would not have heard, devoid of the context of the abuse he meted out, Mr. Pye‘s father‘s brief testimony about Willie‘s supposedly unremarkable childhood. The wealth of mitigating evidence the jury would have heard had Mr. Mostiler not rendered deficient performance is precisely the kind of mitigating evidence the Supreme Court and this Court have held can demonstrate prejudice. See Rompilla, 545 U.S. at 390, 393 (finding prejudice based on mitigating evidence that Rompilla had low intellectual functioning, “was reared in [a] slum environment“; his parents “were both severe alcoholics who drank constantly” his “mother drank during her pregnancy” his “father, who had a vicious temper, frequently beat [his] mother“; his “parents fought violently, and on at least one occasion his mother stabbed his father“; he “was abused by his father who beat him when he was young“; “he was subjected to yelling and verbal abuse“; the family “had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags“); see also Porter, 558 U.S. at 33-34 (“Porter routinely witnessed his father beat his mother,” his “father was violent every weekend, and by his siblings’ account, Porter was their father‘s favorite target, particularly when Porter tried to protect his mother“; Porter “attended classes for slower learners and left school when he was 12 or 13“); Wiggins, 539 U.S. at 516-17 (“[P]etitioner‘s mother, a chronic alcoholic, frequently left Wiggins and his siblings home alone for days.“); Williams, 529 U.S. at 396 (“Williams was borderline [intellectually disabled] and did not advance beyond sixth grade in school“; “prison officials . . . described Williams as among the inmates least likely to act in a violent, dangerous or provocative way” (internal
What is more, this is not a case where the type of mitigating evidence adduced during the state habeas proceedings would have undermined counsel‘s strategy at sentencing. Mr. Mostiler focused his penalty-phase presentation on mercy; mitigating evidence of the type postconviction counsel uncovered “would have easily and directly supported the approach counsel offered at sentencing.” Id. at 1235. If the prosecution had asked a more informed jury, “If Willie James Pye does not deserve the death penalty, who are you saving it for?,” Doc. 13-11 at 90, there is a reasonable probability that at least one juror would not have seen Mr. Pye as someone so unworthy of grace.
Second, the aggravating evidence. This of course includes evidence the State would have introduced to rebut the defense‘s new mitigating evidence. Wiggins, 539 U.S. at 534. Mr. Pye‘s was, without a doubt, an aggravated crime with aggravating circumstances, including Mr. Pye‘s history with Ms. Yarbrough. Mr. Pye and two others kidnapped and raped Ms. Yarbrough at gunpoint, and then Mr. Pye shot her multiple times as she was lying on a roadside and left her to die. The State presented compelling evidence that Mr. Pye had been violent with Ms. Yarbrough before and that on this night she remained alive for up to 30 minutes after
But the Supreme Court and this Court have found prejudice in highly aggravated cases. See, e.g., id. at 514-15, 535 (finding prejudice even though defendant robbed and drowned an elderly woman); Ferrell, 640 F.3d at 1204-05, 1234-36 (finding prejudice even though defendant robbed and murdered, execution-style, his elderly grandmother and young cousin); Cooper, 646 F.3d at 1331, 1353-56 (finding prejudice even though the state had proven that the triple execution-style murders—apparently committed in the presence of an eight-year-old child—satisfied five aggravating factors). Moreover, the extreme domestic violence Mr. Pye experienced—in part because his father, imprisoned around the time of his conception and birth, questioned his parentage—would have contextualized some of the circumstances of the undeniably horrific crime Mr. Pye committed—a crime that involved extreme domestic violence apparently fueled by questions about Ms. Yarbrough‘s child‘s parentage. See Ferrell, 640 F.3d at 1235; see also
I have little doubt that had Mr. Mostiler introduced evidence that Mr. Pye posed no serious threat while incarcerated and had trusting, congenial relationships with guards, the State would have introduced evidence that while serving his time for burglary Mr. Pye was sometimes insubordinate.41 Even so, these instances would have added very little in the way of support for the prosecutor‘s assertion that Mr. Pye would murder a prison guard to escape prison. Similarly, although there is some evidence in the record that Mr. Pye occasionally moved or spoke in an aggressive manner, the records reveal no real violence toward guards42 and no propensity for an escape attempt.
Reweighing the evidence in mitigation against the evidence in aggravation, I am convinced that the “mitigating evidence, taken as a whole, might well have influenced the jury‘s appraisal of [Mr. Pye‘s] moral culpability.” Wiggins, 539 U.S. at 538 (internal quotation marks omitted). Although surely it is “possible that a jury could have heard it all and still have decided on the death penalty, that is not the test.” Rompilla, 545 U.S. at 393. I would conclude, upon a de novo review, that Mr. Pye has shown “a reasonable probability that at least one juror would have struck a different balance” between life and death. Wiggins, 539 U.S. at 537. Thus, I would conclude that he has shown prejudice under Strickland and is entitled either to a new penalty phase or to be resentenced without the penalty of death.
Deciding that she has had enough of the characters she encountered through the looking glass, Alice, immersed in a giant chessboard, captures the Red Queen, puts the Red King into checkmate, and awakens from the dream. She emerges in her home, surrounded by her belongings and her precious pet kittens. All is right again.
The majority opinion, by ignoring the Supreme Court‘s opinion in Wilson, traps our Court behind the looking glass. At this point, only the Supreme Court can set things right again.
This side of the looking glass, the reality for Mr. Pye is that he experienced the unthinkable as an infant, child, and adolescent. He is chronically depressed and has borderline intellectual functioning. When weighing his background against the undeniably horrendous crime he committed, the state habeas court egregiously missed the mark. But the majority opinion—even while acknowledging some of the problems in the state court‘s decision—buries those problems under a mountain of reasons the state habeas court never employed, in violation of Wilson. For Mr. Pye and others who come after his case, though deserving of a second chance to convince a jury to spare their lives under
Notes
In discussing Pye‘s age at the time of his crimes, the state court made two points. First, it offered the strange—and likely clearly erroneous—summary that “trial counsel could have reasonably decided, given the heinousness of this crime and the overwhelming evidence of [Pye‘s] guilt, that remorse was likely to play better than excuses.” Doc. 20-40 at 66 (emphasis added). All here agree that Mostiler‘s strategy at sentencing had nothing to do with “remorse“; it was focused instead on asking the jury for mercy. Second, and more broadly, the state court emphasized that “evidence of a deprived and abusive childhood is entitled to little, if any, mitigating weight’ when the defendant is ‘not young’ at the time of the offense.” Id. at 67 (citing Tompkins v. Moore, 193 F.3d 1327, 1337 (11th Cir. 1999)).
The state court‘s “remorse“-based statement—nestled in a sub-justification of a larger justification—doesn‘t undermine the reasonableness of the state court‘s overall rejection of Pye‘s ineffective-assistance claim, or even render the court‘s constituent no-prejudice determination unreasonable. Perspective is critical. The state court offered at least five justifications for its determination that Mostiler‘s failure to introduce evidence of Pye‘s childhood wasn‘t prejudicial: because of (i) that evidence‘s unreliability; (ii) the seeming unwillingness of the family to testify to it; (iii) its lack of nexus to Pye‘s crime; (iv) Pye‘s age; and (v) the aggravated nature of the rape-murder at issue. Within the state court‘s discussion of one of those five justifications—pertaining to Pye‘s age—one of its two sub-justifications was mistaken. With respect, the “remorse” issue is a sideshow—the proverbial flea on the hair of the tail of the dog.
There is no indication—none—that the state court‘s single misstatement regarding remorse “resulted in” a “decision” that was “based on” unreasonable determination of the facts.
The majority opinion also relies heavily on this Court‘s post-Wilson decision in Whatley v. Warden, 927 F.3d 1150 (11th Cir. 2019). There, in a case that arose in a different procedural posture than this case and Wilson, a panel stated that “our review is not limited to the reasons the [state] [c]ourt gave in its analysis,” id. at 1178, and that we “instead focus on [the state court‘s] ultimate conclusion,” id. at 1182 (internal quotation marks omitted). The Whatley panel never mentioned Wilson. Nor did it mention this Court‘s earlier post-Wilson decision in Meders, 911 F.3d at 1349, where we correctly applied Wilson. My former colleague Beverly Martin asked this Court to rehear Whatley en banc because it conflicted with Wilson and Meders. See Whatley v. Warden, 955 F.3d 924, 924-27 (11th Cir. 2020) (Martin, J., dissenting from denial of reh‘g en banc). She was right. In any event, because Whatley conflicted with Meders, under our prior panel precedent rule, only Meders is good law on this point. See United States v. Levy, 379 F.3d 1241, 1245 (11th Cir. 2004) (“[W]here there is conflicting prior panel precedent, we follow the first in time.“).
In Coleman, the petitioner pursued a Brady claim based on the prosecution‘s alleged failure to disclose exculpatory evidence that another person, Sapp, had confessed to the murder for which Coleman had been convicted. Coleman, 974 F.3d at 716. In support, Coleman pointed to a letter from Sapp in which he admitted to a killing and an affidavit Coleman‘s postconviction counsel prepared for Sapp in which he admitted to killing the victim.
Second, addressing the affidavit, the Coleman panel noted, as a preliminary matter, that “Coleman does not contend that the state should have disclosed the Sapp affidavit.”
The Coleman panel‘s preliminary observation that the affidavit was not itself Brady evidence was merely a point of clarification (that the evidence allegedly was evidence of Brady material, not Brady material itself); it was not a reason why the state court reasonably rejected Coleman‘s Brady claim. And the panel‘s observation that if the affiant was not credible, then what he professed was not true, is the same kind of necessary “implicit finding[]” our Court has long swept within the purview of
In sum, Coleman does not suggest that a federal court may marshal any reasons that “could have supported” a state court‘s decision in deferring to that decision.
Deciding whether a state court‘s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner‘s federal claims, and to give appropriate deference to that decision.
This is a straightforward inquiry when the last state court to decide a prisoner‘s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and time again.
Wilson, 138 S. Ct. at 1191-92 (emphasis added) (internal quotation marks and citations omitted). Applying that logic to a reasoned decision layered beneath an unreasoned one, Wilson confirmed that the approach it had affirmed “time and time again” applied in the “look through” context.
In Rompilla, for example, the Supreme Court noted that a constitutionally adequate investigation into Mr. Rompilla‘s prior conviction would have led counsel to discover:
Rompilla‘s parents were both severe alcoholics who drank constantly. His mother drank during her pregnancy with Rompilla, and he and his brothers eventually developed serious drinking problems. His father, who had a vicious temper, frequently beat Rompilla‘s mother, leaving her bruised and black-eyed, and bragged about his cheating on her. His parents fought violently, and on at least one occasion his mother stabbed his father. He was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks. All of the children lived in terror. There were no expressions of parental love, affection or approval. Instead, he was subjected to yelling and verbal abuse. His father locked Rompilla and his brother Richard in a small wire mesh dog pen that was filthy and excrement filled. He had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone. They had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags.
Rompilla, 545 U.S. at 391-92. Nearly sentence for sentence, this paragraph could have been written about Mr. Pye.
Nevertheless, the majority opinion homes in on three details it says Mr. Rompilla had in his background that Mr. Pye lacked: evidence of schizophrenia, a third-grade level of cognition, and likely fetal alcohol syndrome. Maj. Op. at 62. Mr. Pye also had a documented, serious mental health condition: he suffered from depression. Mr. Pye also had documented, significant cognitive impairments. He performed in the lowest one percentile of his classmates and attended classes for slow learners—and, like Mr. Rompilla, left school near the end of junior high. See Rompilla, 545 U.S. at 391. When he reached adulthood, he was reading and writing at a fourth-grade level—similar to Mr. Rompilla. See id. Finally, Mr. Pye‘s evidence showed that his mother drank while pregnant, and one of his experts opined that Mr. Pye suffered from a fetal alcohol spectrum disorder (one of which is fetal alcohol syndrome).
I see very little daylight between the wealth of mitigating evidence counsel failed to uncover in Rompilla and the wealth of mitigating evidence counsel failed to uncover here. It cannot fairly be said that the mitigating evidence in Rompilla was “significantly stronger” than the evidence here.