*4 BLACK, WILSON, Before HULL Judges. Circuit BLACK, Judge: Circuit Putman Appellant William Howard convicted of two counts of murder Sep- to death for each count on sentenced 17, 1982, County, Georgia.' tember 22, 1997, filed, pursu- April On petition § ant to 28 U.S.C. federal corpus, challenging for writ of habeas County convictions and sentences as constitutionally infirm. The district court *5 petition. See Putman v. Tur- denied the (M.D.Ga.1999). F.Supp.2d 1285 On pin, 53 1999, 10, filed the September Appellant appeal. We affirm. instant FOR REVIEW I. ISSUES initiated after appeal As this 24, 1996, the Anti- April governed by it is Penalty Act and Effective Death terrorism 104-132, (AEDPA), L. No. of 1996 Pub. McDaniel, 110 1214. See Slack v. Stat. 1600, 473, 1595, 146 120 S.Ct. 529 U.S. (2000). by amended AED- L.Ed.2d 542 As 2253(c)(1) PA, a § mandates that 28 U.S.C. petitioner obtain a certificate habeas (COA) in to take an appealability order COA, petitioner a must appeal. gain To a showing of a denial make “a substantial right.” 28 a constitutional U.S.C. 2253(c)(2). Furthermore, granting a § COA, specify must on which issues a court requisite petitioner has' made 2253(c)(3); § Peo showing. See 28 U.S.C. (11th 1342, 1345 Haley, 227 F.3d ples v. Cir.2000). Here, granted the district COA, appropri specify a but failed 2253(c)(3). § pursuant ate issues Smith, Dept, Paula Khristian GA to enu court’s failure Law, Atlanta, GA, The district Respondent-Appel- for review does appellate for merate the issues lee. 1228 jurisdiction. Appellant’s right process whether to due deprive Haley, us of by prosecutor’s alleged denied fail- (citing High at Franklin v.

227 F.3d 1346 material;1 (2) (11th exculpatory to disclose tower, 1196, Cir.2000), ure 1199 215 F.3d — trial, guilt/innocence phase for the of the U.S. -, 1738, 121 S.Ct. cert. denied Appellant whether was denied effective as- (2001)). Rather, in 149 L.Ed.2d 662 exer (3) counsel;2 sistance of for the sen- discretion, may we either re cising our trial, phase Appel- of the whether tencing court with instructions mand to district lant was denied effective assistance of issues, may or we rule to enumerate reviewing counsel. After the record and by petitioner raised war which issues opinion the well-reasoned of the district In rant a id. COA. See Putman, court, F.Supp.2d see 1298- issues, which if choose to decide ourselves 1301, 1304-10, that, we conclude for the any, a worthy are of COA. issues, Appellant first two has failed to brief, raises the showing make substantial of a denial of a (1) both following guilt/in issues: right constitutional and is not entitled to a issue, phases nocence and COA.3 For the third has aunt, Back, by under claims this issue are Katie Christine the name 83, Brady Maryland, "Christine”; (5) based on 373 U.S. failing challenge physi- (1963). partic- S.Ct. 10 L.Ed.2d 215 (the Appellant's pants cal evidence blood ular, Appellant alleges following items car); (6) Hodges’ and the dent on William prosecu- material withheld failing prosecution to interview out-of-town (1) portion summaiy tion: of a trial; (7) eyewitnesses prior failing to ob- (2) psychologist, lant’s interview with a state ject prosecution's alleged to the comment on *6 report claiming per- about a caller that other silence; (8) Appellant’s post-arrest failing to sons had a seen blonde man commit the mur- introduce evidence that others had a motive ders, that, (3) Appellant information while (9) Hodges; failing to kill William to intro- incarcerated, witness Dessie Harris told tracks, fingerprints, duce evidence that tire agents she had seen the murderer in a Michi- footprints Hodg- at the scene of William (4) gan stop, by a rest statement witness Bev- Appellant; es’ murder did not match those of victims, erly Culvery, the niece of the that the (10) failing to introduce evidence that wit- aunt, murderer called her Katie Christine leaving nesses saw a white van the scenes of Back, "Christine,” (5) by the name infor- crimes; (11) making imprudent both arresting police that one of mation the offi- during opening closing comments state- precisely Ap- cers lied about where he found ments. pellant's gun in the truck. issue, respect claims under this issue are Appellant 3.With to the first Washington, based on Strickland v. 466 U.S. Brady raises five supra claims. See note 1. 668, 2052, (1984). 104 S.Ct. 80 L.Ed.2d 674 holding evidentiary hearing, After an the state (in particular, Appellant argues approxi- court, 1, 1994, July habeas in its order dated brief) mately pages three of his initial claims, Brady rejected including six the five (1) ineffectively by: failing, trial counsel acted raised here. See note 4. infra suppression hearing, at the attack to the relia- claim, Appellant's alleging police fifth fabri- (the bility of Brad Back witness victims' six- gun, cation about the location of the child), year-old thereby waiving any challenge rejected being the state habeas court as probable underlying Appellant's to the cause procedurally Georgia barred under law. See therefrom; (2) gained arrest and the evidence § Appellant O.C.G.A. 9-14-51. has shown failing challenge the identification testimo- prejudice neither cause and nor a fundamen- (3) ny eyewitnesses; failing of the three Therefore, miscarriage justice. landlord, tal we are investigate family’s the whom Brad See, assailant; precluded considering this claim. (4) initially Back identified as the Head, 1106, e.g., Mincey failing 206 F.3d investigate 1135-36 to discover or the fact that Culver, victims, (11th Cir.2000) Beverly (citing Thompson, the niece of the Coleman v. told 750, 722, 2546, 2564-65, investigators that the murderer called her 501 U.S. S.Ct. showing. Appellant substantial While had the same lead coun- necessary made the trials, on the third issue and sel at both the other grant We COA members opinion. in only address issue this legal changed proceedings. team between

Appellant’s primary contention—-and the only granted one for which we have II. BACKGROUND County legal COA—is that his Cook team 10, early morning July hours of the rendered ineffective assistance of counsel in the vicini- three murders occurred during sentencing phase. In a nut- in ty of Interstate 75 south central Geor- shell, Appellant argues the failure of his parking murder occurred gia. One County lawyers Cook adhere Valdosta, stop of a truck lot sentencing strategy of his Lowndes Coun- two occurred County. The other murders ty lawyers legal constituted deficient assis- Lenox, County, at a rest area near tance, deficiency, and but for this there is County. which lies north of Lowndes probability Appellant a reasonable would Eventually, prosecut- Georgia the state of not have been sentenced to death. driver, truck Appellant, ed for all three murders. fully explore Appellant’s contention, To underlying we must detail the facts all separate

Georgia conducted two trials three murders and the facts related to trial for the three murders —one Appellant’s legal representation at both single murder in Lowndes and an- reiterate, though, trials' —even the in- other trial for the two murders petition only stant challenges the Cook trials, County. prosecution At both Thus, judgment. part presented substantial evidence about all opinion, first we set forth the facts juries three murders. The found Then, surrounding the three murders. we guilty lant of all three murders. But at explain procedural history of the in- (Lowndes trial, County) jury first petition. Lastly, factually stant com- imprisonment, sentenced to life (Cook pare County) whereas the second phase County sentencing and the Cook sentenced to death. *7 phase, focusing representation Ap- petition challenges

The instant on the the Cook pellant proceeding. conviction and sentence. received at each to, (1991)), contrary ap- 115 L.Ed.2d 640 cert. neither nor an unreasonable denied - U.S. -, 1369, of, (2001). plication clearly 121 S.Ct. 149 L.Ed.2d 297 established federal law. 2254(d)(1). rejected § The state habeas court the other See 28 U.S.C. so, issue, doing respect Appellant four claims on the merits. In With to the second findings crediting supra factual See note 2. made tes raises 11 Strickland claims. timony Appellee's of witnesses. On each These claims are without merit. As dis- claim, below, showing Appellant the court concluded had cuss the evidence guilt Appellee possessed alleged overwhelming. Part failed to show See II.A. infra addition, exculpatory Assuming arguendo trial actions materials. on the counsel’s (concerning summary perfor- first two claims of and omissions constituted deficient mance, psychologist's reports utterly failed to show interview and about has that, deficiencies, killer), Ap alleged there blonde-hair the court concluded but for these pellant prejudice required probability could is a would not show reasonable shown, Brady. Appellant guilty. by by clear have found This failure has not evidence, findings convincing prejudice and factual to show dooms ineffec- guilt/innocence of the state habeas court were incorrect. See tive assistance claims for the Furthermore, Strickland, 2254(e)(1). phase § 466 U.S. at 28 U.S.C. the le of the trial. See 2068, 694, 700, gal at conclusions of the state habeas court were 104 S.Ct. 1230 man walked behind her car then Background

A. Factual lot. He proceeded parking across the Convictions to the front of the Hardin went around underlying Appellant’s convic- The facts there for a few automobile stood forth in the Su- thoroughly tions are set moments. denying Georgia’s opinion preme Court appeal. Putman v. Appellant’s direct meantime, ar- In the Verlin Colter 145, State, 605, 308 147-48 251 Ga. S.E.2d that a parked. rived and He observed Putman, (1983), F.Supp.2d at in quoted empty, yellow an dark-colored semi with repeat 1290-92. those facts here: We parked trailer was the end flat-bed 10, early morning July hours of parking lot and that a the automobile Katie David Hardin and his wife of the blue standing man was front Back], Kentucky, residents [Christine Dodge, occupants appar- were all whose at an were shot to death Interstate ently asleep. Lenox, Georgia. Truck rest area near testified that the man walked Dessie Appellant] Howard [and driver William around to the driver’s side of the Hardin charged Putman was arrested and automobile. She heard loud noise of murder.... two counts passenger man ran side then the spent preceding the week The victims of the car. vacationing Daytona deaths their that, just lay as he Beach with their three children Verlin testified Beverly They automobile, left David’s niece Culver. heard a loud down he Daytona Dodge in their blue se- Beach noise that sounded like firecracker. arrived evening July dan on the 9 and up and saw a woman in the He looked prior at the Lenox rest area some time passenger Dodge open- seat of the front They parked a.m. on the tenth. to 3:00 ing passenger door. The man he parking lot of the rest the automobile had seen earlier ran around the car to sleep. area and went to her door. Later arrivals at the area includ- rest Culver, asleep had Beverly who been Colter, parked spaces who two ed Verlin Dodge in the back seat of the with Ka- Hardins, right to the and Dessie children, tie’s two older testified she Harris, who the drive- parked across was awakened a loud noise. She saw Hardin, through, opposite the automo- car, standing a man outside the next to bile. Hardin, lay in David who the driver’s that, arrival, upon Dessie testified her resting seat with his head on the back of spread a blanket on the hood of her she seat, man next to the door. The blanket, smoking car. she sat on the As *8 car. passenger hurried to the side of the cigarette, a she observed a dark-colored Beverly, Verlin and Dessie all ob- trailer, “semi,” pulling a flat-bed drive happened what next: As Katie served slowly through several times the auto- car, get Hardin tried to out of the parking mobile lot. The truck eventual- man and grabbed her demanded ly parked parking at the end of the lot. refused, go with him. She and she out, got The driver reached into the cab David, lay fatally who screamed truck, object of the retrieved an wounded in the driver’s seat. The man stopped toward her car. He un- walked Katie in the head. He then tree, shot nearby approximately a five der Dessie, placed into the car and some- her. reached feet from and whistled at pants. nothing. thing at him The into the waist-band of his She stared but said off, pathologist ran to truck and drove head- The who He his conducted au- topsy testified that a time of death ed north. could any certainty. not be established with police, called the who arrived at Verlin However, lividity patterns indicated that just area before 5:30 a.m. the rest prior death had occurred some time on information obtained from the Based Hodges’ morgue arrival at the at 3:10 witnesses, posted a lookout was for a p.m. A .38 caliber bullet was recovered male, north on Inter- proceeding white from the interior of his automobile and 75, driving state a dark-blue or black another was recovered from inside his pulling empty, yellow truck an flat-bed skull. trailer. [Appellant’s] After arrival fitting description

A truck was County, clothing was removed from spotted by police just south of Cordele him pockets and the contents of his were in Dooly and followed to a rest area pockets inventoried. his shirt County. parked The truck the exit cartridges two. 38 caliber and an insur- lane of the rest area and the driver went bearing ance card the name William G. Backup to the restroom. units arrived Hodges. pockets In the of his trousers driver, [Appellant], and the was arrested gold were a Timex wristwateh and two after he returned to his truck. Officers gold rings, having one a red stone and [Appellant’s] smelled alcohol on breath rings the other blue stone. The initially Dooly and he was taken to the the watch were identified friends as Office for an intoxime- Sheriffs having belonged Hodges. to William test, [Appel- ter which indicated Serological examination of the reddish- lant’s] blood alcohol level was .13 leg [Appel- brown substance on the [Appellant] what grams/percent. had trousers and on the lant’s] blue-stone appeared pants to be blood on his left ring established that the substance was leg. having blood characteristics consistent recovered a .38 caliber revolv- Officers with the blood of Hodges William [Ap- er from under the driver’s seat of per- inconsistent with the blood of 98.3 pellant’s] truck. The revolver had three general population. cent of the spent cartridges live rounds and two A chamber. A fresh dent was discovered gun its case and David lay right Hodges’ rear corner of the roof of passenger Hardin’s wallet on the horizontal, seat. automobile. The dent was long. paint two or three inches Yellow [Appellant] was returned to Cook dent, grooves in the was County at approximately 7:30 a.m. Des- yellow paint and loose flakes of sur- courthouse, having sie Harris was at the yellow paint rounded the dent. just given investigators. statement [Appel- the same color as the trailer of smoking ciga- As she stood outside rette, truck. lant’s] [Appellant] police arrived in a car. immediately him recognized

She as the [Ap- found in The .38 caliber revolver man who had shot David Katie Har- pellant’s] purchased by truck him at din. Alabama, pawn a Talledega, shop on approximately p.m. May

At 1980. Ballistics examination 2:30 *9 day, body same of William showed that the bullet removed from the Gerald Hardin, re- Hodges slumped was found over the skull of David bullet Hardin, parking of in of Katie wheel his automobile moved from the skull stop lot of a truck in He had the bullet removed from the skull of Valdosta. in and the bullet removed Hodges been shot the head and shoulder. William sentences, County convictions and Hodges’ automobile Cook interior of from the appeal. See gun: were affirmed on direct fired from the same which had all been Putman, 145. revolver. 308 S.E.2d at .38 caliber [Appellant’s] that he was re- [Appellant] testified on the first collateral attack Florida on the 9th turning from petition was a for County judgment that he July. He admitted 10th of corpus and a motion for of habeas writ in stop truck Valdosta stopped at the The filed in state court. stay of execution p.m. on the 9th. approximately 10:00 court found that state habeas and three he had two beers He said Appel- and denied petition lacked merit drinks, in sleep went to mixed and then Ap- of stay motion for a execution. lant’s couple of truck. he left a When and a pellant petition then filed a habeas later, a he took with him hitchhik- hours in stay of execution federal motion for him He only known to as “Jeff.” er granted court. The district court district briefly at the first rest area stopped execution, stay subsequently of but 75, on Interstate near north Valdosta peti- voluntarily lant dismissed the federal Hahira, hands, to wash his and subse- tion. out at an exit near Adel. quently let Jeff execution, stay Ap- Shortly after the to the rest proceeded directly He then pellant petition amended his state to assert Dooly County in where he was area of trial a claim of ineffective assistance [Appellant] having denied arrested. Appellant also filed state court counsel. area. He stopped at the Lenox rest trial and to alternative motions for new found owning admitted the .38 revolver judgment reopen in order to set aside truck, having any- shot in his but denied corpus habeas case. evidence the state it. one with court denied these mo- The state habeas Putman, at 147-48. 308 S.E.2d applied Supreme Appellant tions. Background B. Procedural Georgia proba- for a certificate of Court of granted applica- ble cause. The mentioned, previously As the state of evidentiary and remanded for an hear- tion prosecuted Appellant sepa- in two Georgia alleged ing on the issue of trial counsel’s rate trials the offenses described ineffectiveness. 1981, May Appellant was tried above. and convicted of the 27, 1985, August the state habeas On Hodges. jury The sen- murder of William evidentiary hearing. an In a court held imprisonment. life Appellant tenced 4, 1989, April written order dated and sentence were affirmed The conviction of fact and findings court set forth its Putnam appeal. on direct [sic] law, determining conclusions of there was (1982). State, 418, 250 Ga. 297 S.E.2d 286 claim no merit to the ineffective assistance any collateral attacks We are aware by Appellant. raised or other issue Appellant against the Lowndes 12, 1989, July Supreme On Court judgment. justices dissenting, de- Georgia, with two Appellant’s applica- opinion nied without 1982, September Appellant was tried probable cause. tion for a certificate mur- and convicted of the Supreme Court denied The United States Katie ders of David Hardin and Christine Zant, certiorari. See Putman v. 493 U.S. Back. sentenced 1012, 575, sentences, 107 L.Ed.2d 569 for each murder. 110 S.Ct. two death one (1989).4 petition challenges The instant habeas peti- corpus in stale court. tion for writ of habeas In June filed second

1233 23, 1997, On April Appellant filed the trial. The other defense counsel at the instant petition, federal seeking habeas re- Lowndes County trial were Marcus Davis pursuant lief § to 28 U.S.C. 2254. The and Michael Bennett. Mr. Davis at the district petition. court denied the Appel- time of the trial had been an attorney for lant filed appeal. approximately five years. Bennett, Mr. practiced who in Lowndes County, had C. Background Factual Sentencing been an attorney for approximately four Legal Phases and Representations years and had never tried a death penalty Our narration of the facts relating to the addition, case. In Alderman, Galen P. sentencing phases, focusing on Appellant’s law student and the granddaughter of Ms. legal representations, is drawn from the Griner, Appellant’s assisted defense team. record before the state habeas court when Appellant’s considered petition habeas b. Cook County and his claims of ineffective assistance.5 For trial, the Cook County Mr. Bennett First, we summarize legal experience was never a member Appellant’s de- of Appellant’s two legal Second, teams. fense team. Mr. Davis initially on we consider the presented evidence Appellant’s Cook County team, but he arguments at the phases, two sentencing early withdrew in the case and had little and we alleged potential mention witnesses involvement. Ms. again Griner served as who were not Third, called to testify. we Appellant’s lead counsel. addition explain differences in the jury instructions. Griner, Ms. represented Lastly, we examine the defense strategy of Ms. Alderman and Daniel Studstill. Addi- Appellant’s team. tionally, (Elsie Ms. daughter Griner’s Gri- ner, Jr.), lay 1. was a Experience investigator Appellant’s who Attorneys as- sisted Cook County team a. Loumdes “[hjundreds conducted of hours of investi- For trial, gation.” lant’s family privately obtained the ser- Alderman, Ms. a law vices of student at Griner, the time attorney Elsie At Sr. trial, of the time of Lowndes County Ms. Griner had had years over 60 since experience graduated trial and had been a and had tried member of the countless cases, just criminal including bar year one under a penalty death at the time case which her client had received a life Cook trial. Appellant’s case was sentence. Ms. Griner served as Ms. lead coun- Alderman’s first criminal trial as a sel and was all hearings and at lawyer. The state habeas 1012, court dismissed Ap- 570, most of 516 U.S. 116 S.Ct. 133 L.Ed.2d pellant's successive, being claims as but the (1995), denied, reh’g 1099, 494 U.S. 116 court hearing Appellant's held a on six claims 829, (1996). S.Ct. 133 L.Ed.2d 771 Since we Brady 83, Maryland, based on v. 373 U.S. have held Brady claims lack merit 1194, (1963). S.Ct. 10 L.Ed.2d 215 After the COA, and do not supra warrant a see & Part I hearing, relief, the state habeas court denied n.3, this proceeding second state habeas finding one claim to be successive and the not relevant to our discussion. remaining five to lack merit. The high state's court application denied for a cer- 5. 2254(e)(1), § accordance with 28 U.S.C. cause, probable 20,

tificate of April and on presume findings the factual of the state 1995, rehearing was denied. The United correct, habeas are since has Supreme States Court denied certiorari on presented clear convincing evidence 4, 1995, December rehearing and denied contrary. to the January Thomas, Putman *11 co-worker, Appellant According to the Defender Public the was

Mr. Studstill concern, help, and Circuit, time to consisting took showed Alapaha Judicial for the But prac- had home. on away from peaceful Mr. Studstill counties. was of five numer- had tried cross-examination, He since 1980. the co-worker conceded ticed law case was cases. ous travel- Appellant criminal he had not observed that a defense case penalty his first death know truck, he did not that ing in his howev- being lawyer, a Prior to attorney. while stay awake drugs to Appellant took years er, for two had worked Studstill Mr. Appel- unaware that he was traveling, and attorney’s district investigator as an occasionally mixed and alcohol lant drank prose- involved in and had been office drugs with alcohol. anti-sleeping his theOn penalty cases. of four death cution un- Appellant was testified Griner Ms. trial, Mr. Studs- eve of the Cook clients, who other compared to her usual state court passed away. The father till’s violent, impressed was and she often a re- a As grant to continuance. refused manner, fair- Appellant’s non-violent most of sult, was absent for Studstill Mr. prison The ness, for others. and concern pres- was phase, but he guilt/innocence had a Appellant that been deputy attested phase. sentencing ent for prisoner, relating trouble-free how stay visiting lant schoolchildren advised Closing Ar- Presented 2. Evidence and prison. out of guments a. Lowndes testimony, Appellant also In his own gave that he advice informed phase of the During the addition, Ap- visiting schoolchildren. handled Mr. Davis life, his family his pellant Nine communicated witnesses. examination any prior evidence history, were called his lack of employment witnesses were as fol- The witnesses mitigation. of convictions, personal de- myriad and a (wife, father, sister, relatives lows: five instance, Appellant talked about For tails. husband), sister-in-law, a step-sister’s sibling; his love tending to a sick his co-worker, Griner, deputy Ms. prison; religious his courses in family; his detained, was Appellant prison where in God. and his belief wit- Nearly all the Appellant himself.6 arguments, closing to the Turning pose a Appellant would not testified nesses Appellant did not accuse prosecutor keep- prison danger to others Rather, prosecutor being friendless. be beneficial Appellant alive would ing punish- different theories of explained the society. deterrence, rehabilitation, and ret- ment: general gave all the same relatives The prosecutor contended ribution. is, a man testimony. That worthy of was not rehabilita- nature; he peaceful character and good tion, and retribution and that deterrence family; and strong love for possessed a penalty. for the death called father, husband, friend. good he was closing argu- conducted the Mr. Bennett inci- particular recounted The relatives appealed He Appellant. ment behalf especially Appellant had been when dences testimony jurors to consider cross-examination, helpful. On kind or particular, he ar- Appellant’s relatives. however, they had the relatives conceded Appellant was the crime for which gued while Appellant’s character not observed contrary to the completely convicted in his truck. traveling he was expert. mental County counsel did not call health 6. The *12 n and a if Appellant had established dur- niece stated would be loss reputation Appellant were executed. years first 38 of his life. Addition- ing the “lingering made a doubt” ally, Mr. Bennett agent personally The GBI did not know possibility that sci- raising the argument, Rather, file, Appellant. based on his he might someday evidence establish entific Appellant’s employment narrated history. innocent. Appehant to be that, history This showed for the most

part, Appellant consistently had been em- County b. Cook ployed. Additionally, the agent GBI was unable to find derogatory information At the Cook four witnesses Appellant’s employment. about phase. during were cahed Appellant’s testimony was similar to his Ms. Alderman examined three witnesses: (who testimony at the Lowndes trial. sister also testified Appellant’s niece, During guilt/innocence phase, Appel- County), Appellant’s and jury lant informed the family, about his Georgia Bureau of In- agent an (GBI). including his three children. At the sen- vestigation Ms. Griner examined tencing phase, Appellant jury told the he Appellant. always had never been trouble and had less, Although quantitatively the testi- Additionally, Appel- been a hard worker. quali- monies of the and niece were sister lant maintained his innocence. tatively given by similar to the testimonies Turning closing arguments, the Cook at the five relatives prosecutor argument made an trial. in more in the As set forth detail County prosecutor. made the Lowndes an im- margin, gave sister and niece Specifically, argued: he Appellant a pression good family man honest, hard-working, important you and friend who was More than what heard you and non-violent.7 Both the sister afternoon what loving, did not hear. sister, Appellant's Ap- Appellant’s 19-year-old pe- who was older than niece had lived riodically Appellant since she was and pellant, a claimed to be "second mother” to Appellant's she considered house to be her jury following Appellant. She told the following home. The niece told the (1) Appellant was close to all his facts: broth- (1) thought Appellant "dad- facts: She as a sisters; (2) loving, Appellant and was a ers good "great dy” very and "a friend” with a any prob- considerate child who never caused humor;” (2) Appellant "loving,” was sense of lems; (3) Appellant, young boy, aas worked "kind,” "honest;” (3) Appellant and minded jobs, delivering papers gro- odd such as and business, much, family very his own loved his mowing yards, using ceries and his income hard; (4) always very and worked the niece (4) support family; Appellant loved his Appellant a had never heard tell lie or seen children, wife, (5) (5) violently; Appellant taught family; Appellant and him act had traits, great many non-violent, man,” the niece a character in- "good person,” a a "fine (6) cluding honesty; Appellant had successful- man;” (6) "family awaiting and a While trial (7) ly encouraged college; the niece to attend letters, prison, Appellant many wrote in- well, quite giving Appellant treated the niece quiring family, especially Appel- about needed; (8) entering money since her when father; (7) during July lant's the week of 4th prom- prison, Appellant had written the niece arrest, prior Appellant hosted college ising help pay her that he would family week-long gathering. a members for (9) possible; Appellant education if called Additionally, family, he had a barbecue for inquire prison to how she was niece from friends, neighbors, did and most of the school; (10) doing Appellant ex- never himself; (8) preparations himself, others; pressed only for concern for loss, especially a (11) death would be for his fami- if it would be loss ly. to die. have attested to You did and would preacher. not hear You did Many opined hear one peaceful You did not character. also gideon. not hear not hear one capable You did single they co-worker. did not believe him who knows friend single personal committing murder. His he’s like. wife knows what friends, mostly family, The affiants were friends, if he personal knows him. His however, affiants, and co-workers.8 The *13 But, you didn’t know. any, has would prison did not include the co-worker it’s not there and it and it wasn’t have Appellant official who testified the kind of [Appellant is] there.... County. affiants were rel- Some preacher have a to man who doesn’t who had testified at the Lowndes atives him; personal a speak up for come and trial, County such as ex-wife. friend; close, family member. a close n the Lowndes (Appellant divorced between So, you than you I that tells more say to trial.) County County trial and the Cook days heard in three anything you’ve else Although ex-wife man. about this trial, County Appellant’s law- at the Cook jury to the did foregoing argument The yers decided not to call her for reasons closing argu- In her go

not unrebutted. Part below. See II.C.4. discussed infra ment, explained that Ms. Alderman affiant was a co-worker who at- Another away, Appellant far lant’s friends lived present at the Cook tested that he was pay their travel ex- could not afford to testi- County but was never asked penses. stressed that She fy- him, pleaded for family by and she stood Additionally, emphasized she mercy. Jury Instructions jury of their delibera- the the seriousness Although the evidence at the Lowndes penalty, Ap- they tions—if chose the death sentencing phas- and Cook Final- pellant die electrocution. would similar, jury instructions had es was County, ly, like Mr. Bennett in Lowndes distinctions, a result of different critical as “lingering made a doubt” Ms. Alderman prosecutors. strategies pursued by the two possibility that one argument, raising County prosecutor present- The Lowndes day Appellant’s might claim of innocence circumstances to only aggravating ed two proven be true. (1) murder jury: committed capital felony, c. Not Called at Witnesses the course of another County Trial wit, Cook robbery Hodges, the armed of William (2) Appellant committed armed rob- surprisingly, Appellant points to Not purpose receiving money or bery for the testify at persons who were not called to value, wit, things monetary other County trial. Unlike in Lowndes the Cook rings and watch. Hodges’ gold-colored two co-worker, prison County, neither a a offi- aggravating one of the these two Unless cial, Appellant in lawyer nor a testified for beyond by proof circumstances was shown County. pro- In the state habeas Cook doubt, jury was instruct- reasonable presented ceeding, Appellant affidavits impose under ed that it could not death people they would numerous who swore asked, course, jury ultimate- County, Georgia if law. Of have testified affidavits, opinion page opin- on the other 8. One affidavit was a based one-and-half counsel, and psychiatrist with state habeas psychiatrist. The as- conversation ion from Georgia Supreme narrated in the should received a facts serts have appeal. psychiatrist opinion on direct psychiatric Court's evaluation. County prosecutor impose Notably, high- not death. ders. The Cook ly did prosecutor did not ar- lighted particular, egregious, and more the trial court did instruct— gue facts of the Hardin and Back murders— —and jury consider the murders that the should County prosecu- facts which the Lowndes Back of David Hardin Katie Christine not, not, tor did and could mention in his circumstances. aggravating instance, closing argument. For the Cook prosecutor stated: County, I impose point [Appellant] if it want to out that ... also told that it could death doubt, found, beyond ag a reasonable executed the mother of three children in circumstance, wit, murder gravating part of I presence. point their want to capital the commission of another during you out to gentlemen ladies and capital But felony. alleged felonies jury, that Katie Christine Back’s death *14 County were far more serious. The Cook you could have been worse. I ask to jury pointed to County Cook instructions recall the circumstances in which he at- capital for each murder three felonies tempted to force her from the automo- count. For both the Hardin and Back bile, him, force her to leave with tried to counts, Hodges murder the murder of and vehicle, refused, her out drag she robbery the armed of Hardin constituted screamed, fought, she she she was shot third capital capi two of the felonies. The and killed. felony tal for the Back murder count was penalties, two imposing death the murder, capital the Hardin while the third County jury aggrava- Cook relied on three Hardin count felony for the murder was murder, ting circumstances: the Hardin stated, Simply the Back unlike murder.9 murder, the Back and the Hardin armed County counterparts, their Lowndes robbery.10 County Interestingly, the Cook jurors permitted County Cook were jury Hodges did not find the murder County, including consider events Cook County aggravating to be an cir- egregious murders of Hardin and cumstance. Back, deciding impose when whether penalty.

the death 4. County Strategy Cook Defense closing argument, the Cook Coun- Initially, amongst the division of labor ty prosecutor advantage took of this more County attorneys was to jury by emphasizing favorable instruction had committed three mur- be as follows: Ms. Alder- Griner Ms. was, (the reciprocal part, vating 9. This instruction er- circumstance Hardin armed rob- Georgia Georgia ror law. As the Su- under bery). importantly, purposes Most for of our preme appeal, jury here, Court noted on direct discussion this error is irrelevant be- imposed penalty could have the death for one cause, County jury, unlike the Lowndes by using the murder second murder as an County jury permitted was to consider aggravating circumstance. Putman County at least one of the Cook murders as an 145, State, 251 Ga. 308 S.E.2d aggravating circumstance for one of the two (1983). jury impose But the could not two penalties imposed. death (i.e. murder) penalties death one for each aggravating only where the circumstance for penalties, one of the two death For each murder was the other murder. See id. Georgia Supreme to be Court found it error State, 313, 315-16, (citing Burden v. 250 Ga. (albeit harmless) Georgia under law for the Nonetheless, (1982)). 297 S.E.2d 242 jury rely reciprocal charge on the murder Georgia error was harmless under cause, law be- aggravating supra as an circumstance. See murders, for both the Hardin and Back note 9. independent aggra- had relied on an niece, ex-wife, sister, and as well daughter, investigative work handle man would decided phase; agent. Mr. Studs- Ms. Griner as GBI guilt/innocence and the dire; and voire calling daughter till handle motions because “she against would would handle the attorneys Likewise, all three de- angry.” too Ms. Griner phase. Mr. Studstill sentencing When Appellant’s ex-wife be- cided not to call of the trial beginning attend the unable to upset” testify. was “too cause she death, con- father’s Ms. Griner due to his Ap- Additionally, spoke Ms. Griner dire. ducted voire “specifically” about pellant “a lot” and County attorneys All three Cook called as witnesses persons which would be at the presented aware of the defense fully phase, for the trial. The Cook persons to call as suggested a number hearing in Lowndes pre-trial held a witnesses, including some co-workers purpose giving Ap- County for sole Ms. Griner was unable locate Alabama. to re- pellant’s attorneys opportunity co-worker, one who had driven with County record. Fur- the Lowndes view lant, because he had left town. Ms. Griner counsel, thermore, Griner, lead had Ms. Appellant’s neigh- contacted one of also the entire Lowndes been bors, who attended the Lowndes along investiga- with her planned to call the trial. Ms. Griner tor, County record. examined the Lowndes witness, a character but at neighbor as *15 Alderman, who assisted at Ms. trial, neighbor she learned the would not trial, had access to the Lowndes able to miss work to attend the Cook be Studstill, transcript. Lowndes Mr. County proceeding. Lastly, Ms. Griner with although not involved potential talked to other witnesses at the trial, the en- personally reviewed pre- (though trial she could remember County transcript. tire who), cisely they got upset but because attorneys Although all three verdict, they could not guilty about the sentencing responsibility for the share testify. habe- phase, it became evident at the 1985 contrast, pre- Mr. did not By Studstill majori- hearing that Ms. Griner did the as sentencing pare any witnesses for the pri- ty preparation.11 Ms. Griner’s subpoenaed phase. Mr. Studstill neither prove mary strategy Appellant’s was to (other already than those any witnesses (and sentencing). innocence thus avoid prosecution) nor inter- subpoenaed ob- pursued strategy by lodging She surpris- This is not viewed witnesses. by plac- the trial and jections throughout Appellant’s attorneys, three Mr. ing. Of explain ing Appellant on the stand to familiar with the Studstill was the least events. version of facts of the since he had not been Nonetheless, spend time Ms. Griner did County trial. involved with the Lowndes phase in the preparing sentencing for the such, pri- As Mr. Studstill’s contributions guilty. was found She event factual, marily rather than legal, involved Appellant “hundreds of times interviewed matters. Appellant’s family talked to mem- experience Based on his Cook particular, Ms. consid- bers.” Griner Appellant, Mr. Appellant’s against and the evidence calling ered as witnesses Rather, Appellee Interestingly, Appellant’s habeas called Ms. Griner order state Studstill, Davis, called Mr. give counsel Mr. habeas court a full view of state testify hearing, Alderman to at the 1985 Ms. County legal representation. a witness. but did not call Ms. Griner as cause, said, likely I I prepared mostly believed Studstill pen- be convicted and to receive death legal judge traps issues of the alty.12 As he testified at the 1985 eviden- trying get appeal it turned on I tiary hearing, County, think “[I]n having accept then the State life sen- penalty[,] and I they’re pro real death if got appeal. tence we on reversed up put don’t believe ... that we could have Prior one “judge trap” Mr. anybody mitigation Studstill tried to set was a motion for changed jury’s that would have phase sequestration jurors during voir dire. focusing mind.” Rather than on sentenc- Mr. hoped Studstill to show that the trial concentrated his ing, Mr. Studstill efforts judge, pro- violation of due creating legal error the trial. The right, always cess requests denied to se- exchange following between quester jurors during voire dire. Mr. state habeas counsel and Mr. Studstill at many pre-trial Studstill filed other mo- hearing accurately the 1985 summarizes tions, including suppress, a motion to strategic thinking Mr. at the Studstill’s peremptory motion for additional chal- (in trial coun- time of contrast to habeas lenges, and a motion to exclude all refer- trial): after strategic thinking sel’s Hodges ences to the murder. Nobody Counsel]: was called [Habeas During phase, the sentencing Mr. Studs- hap- other than the two witnesses who till legal objec- made several additional pened day. to be in the courtroom that instance, respect tions. For to the [Mr. Studstill]: Yes. instructions, jury Mr. Studstill cited Geor- Is that fact—correct? [Habeas Counsel]: gia proposition case law for the that the up Does that about sum how the deci- Hodges completed prior murder was to the were made? sions murders, Hardin and Back and therefore Well, no, you’ve implied [Mr. Studstill]: Hodges could not consider the flying by that we were the seat of our *16 murder an aggravating as circumstance. pants. exactly way And that’s not law, Again citing Georgia case he further things happening. that, argued since had not been charged with robbery the armed of Har- bit, If up we could back a little I felt like din, jury could not consider armed penalty] [the death was inevitable. So I robbery aggravating as an circumstance. my major thought lay role was to ... Mr. Studstill also contended that the traps judge perfect and to the rec- permitted during should not be their delib- appeal. basically ord on And that was photographs erations to view certain I going what was to do with voire dire. which, view, jury’s his would inflame the That what I going try was to to do passion. my portion during guili/innocence of the Finally, Mr. did not ignore Studstill through whether it be cross examination aspect sentencing of the case. He was through or whether it of raising be Griner, present, evidentiary Okay? along motions or whatever. with Ms. for meet- members, friends, ings family being really Not familiar in detail with acquaintances employment. Mr. case, every fact of some of these Studstill testified that the defense team people possible mitigation [mentioned nothing calling ... mean to me. Be- considered a number of witnesses witnesses] experience penalty tried In contrast to Mr. Studstill's the death was inevitable—had County, Appellant's Cook Mr. County. one case in Cook Davis— counsel, Lowndes who did not think 1240 Davis, Appellant’s Finally, In Mr. one Appellant. their relation

based on attorneys, testified at the with Ms. discussed particular, Mr. Studstill explained that hearing. He 1985 habeas whether Ms. Alderman Griner and Appellant’s counsel for the withdrew as he agreed he testify, and lant’s ex-wife should part large trial because divorce, would that, recent she due to the opinion” difference of an “irreconcilable Additionally, favorable witness. not be a Ms. Alderman. This with Ms. Griner and Studstill, other members along with Mr. on where to opinion centered difference team, familiar with became the defense According to concentrate their efforts. history. employment Appellant’s Davis, deep “very Ms. had a Mr. Griner Alderman, testimony her to Ms. Turning [Appellant] was inno- seeded belief believed, if hearing, habeas at the 1985 interfered with Mr. cent.” This belief claim of inef- quite favorable strategy, which was preferred legal Davis’s For in- of counsel. fective assistance Mr. sentencing phase. on the As to focus stance, prepared was not attested she she I explained hearing, at the 1985 “[I]f Davis phase of sentencing with the proceed County] my [Cook had been Alderman also asserted the trial. Ms. probably 80 energies would have directed that, call than the decision other sum, In sentencing phase.” percent to ex-wife, strategic no decisions County team Mr. Davis wanted the Cook respect sentencing to the were made with strictly strategy follow the addition, Ms. Alderman assert- phase. County team. conducted the entire Cook ed she clearly at County trial herself —assertion III. STANDARD OF REVIEW sum, ac- with the trial record.13 odds an The district court neither held Alderman, just luck cording to Ms. any indepen made evidentiary hearing nor available for the that some witnesses were Therefore, findings dent of fact. its hold phase, ing was of law and is reviewed de one prior nothing team had done legal Moore, 915, 921 novo. See Hill v. F.3d guilt/innocence to the conclusion (11th 1087, Cir.1999), cert. denied 528 U.S. prepare sentencing phase. for the phase to (2000). 145 L.Ed.2d 686 S.Ct. court, however, court, however, reject- The state habeas habeas Sitting as federal (like court) Ex- reviewing, version of events. are ed Ms. Alderman’s the district *17 essence, pressly relying on Mr. Studstill and Ms. in a decision of the courts of “[p]repa- Appellant’s petition that testimony, Georgia. found Since Griner’s 24, 1996, April our of phase of the trial filed after review sentencing ration for the trial, governed by court decisions is AED during and state place took before Johnson, 782, 532 Penry PA. See U.S. guilt/inno- the during the recess between (2001). 1910, 1918, 9 121 S.Ct. 150 L.Ed.2d sentencing phases of trial.” The cence 2254(d), § as particular, 28 U.S.C. charac- rejection court’s of Ms. Alderman’s AEDPA, by provides; amended supported by terizations is Ms. Alderman’s (d) partial to An a writ of habeas implicit application admission that she was custody corpus person on behalf of a Appellant’s cause. trial; contradicted, during evidentiary objections Ms. assertion at 13. Ms. Alderman’s least, Appellant; Ms. Griner made following undisputed facts: Ms. Gri- Griner examined guill/innocence closing argument for the sitting next to Ms. Aider- ner was trial; legal lengthy phase; Mr. Studstill made a Ms. Griner conduct- man for the entire dire; argument instructions. about the ed voire Ms. Griner made numerous

1241 judgment governing a law pursuant by Supreme to the State set forth Court (2) law, respect granted shall not be with case or when faced materially court facts, adjudicated indistinguishable claim that was on the state court ar proceedings merits in State court unless rived at a result different from that adjudication the claim— reached in a Supreme case. Court See (11th Moore, (1) Bottoson v. 234 F.3d 531 in a resulted decision Cir.2000). to, contrary or involved an unreason- of, application clearly able established A state court conducts an “un law, by

Federal as determined application” clearly reasonable estab States; Supreme Court of United if lished federal law it identifies the correct or legal Supreme rule from Court case law (2) resulted in a decision that was but unreasonably applies that rule to the based on an unreasonable determina- petitioner’s facts of the case. See id. An light tion of the of the facts evi- application may unreasonable also occur if presented dence the State court extends, a unreasonably state court un or proceeding. extend, reasonably legal prin declines Furthermore, a state court’s factual find- ciple Supreme Court case law to a correct, ings presumed are unless rebutted context. Notably, new See id. an “unrea petitioner convincing with clear and application” an “objectively sonable un 2254(e)(1). § evidence. 28 U.S.C. Williams, application.14 reasonable” See 412, 120 dispute does not the factual 529 U.S. at S.Ct. at 1523. Therefore, findings Georgia of the courts. 2254(d)(1) § Lastly, provides a 2254(d)(2) 2254(e)(1) § § neither nor is rel- stick for measuring federal habeas courts Rather, inquiry. pursuant evant to our to reviewing state decisions. That court 2254(d)(1), § Appellant challenges the le- measuring “clearly stick is established gal rulings Georgia courts. 2254(d). § Federal law.” 28 U.S.C. “contrary Clearly to” and “unreason established federal law is not the 2254(d)(1) courts, application” § able- clauses of case law of the lower federal in Instead, separate reviewing cluding are bases for state this Court. the habeas context, Taylor, clearly court’s decisions. Williams v. established federal law 362, 404-05, 1495, 1519, holdings, opposed 529 U.S. 120 S.Ct. “refers to the to the (2000). dicta, Supreme L.Ed.2d A [the 389 state court decisions Court’s] “contrary clearly decision is to” estab as of the time of the relevant state court (1) Williams, 412, 120 lished federal law if either decision.”15 at state U.S. applied rule contradicts S.Ct. 1523. By interpreting applica- disagree. plenary power Our de "unreasonable novo re- unreasonableness,” "objective tion” as legal view enables us to correct errors where *18 Supreme rejected Court in Williams the "rea- factfinding Boyes unnecessary. further is See jurist” by sonable standard announced this Co., 1260, v. Shell Oil Prods. 199 F.3d 1266 n. 917, Neelley Nagle, Court in v. 138 F.3d 924- (11th Cir.), denied, reh’g 13 206 F.3d 1397 (11th Cir.1998). Head, 25 See Parker v. 244 (11th case, Cir.2000). In this district 831, Cir.2001) (11th (citing F.3d 835 fact, independent findings court made no of Williams, 409-10, 526 U.S. at 120 S.Ct. at pure so its decision was one of law. 1521-22). Here, district court rendered prior ap- its decision to Williams and thus "clearly 15. When we mention established fed- Neelley plied jurist” "reasonable standard. opinion, referring law” we are eral in this Putman, F.Supp.2d See 53 at 1297. the definition set text. forth argues requires error a We this remand. requires the defense. This prejudiced DISCUSSION IV. so errors were showing that counsel’s discussed, only claim previously As the defendant of a deprive as to serious granted has been for which result is reliable. a trial whose fair at assistance of counsel is ineffective COA Part I. phase. supra See Strickland, 687, at at 104 S.Ct. 466 U.S. habe- rejected by the state This claim was relief, petitioner must gain To 2064. 4, 1989, April of which court in its order as id. prevail prongs. on both See of Supreme Court affirmed 12, In accordance July 1989. Georgia on Ap- “Contrary B. to" “Unreasonable 2254(d)(l)’s review, we § standard Analyses plication” landscape pertinent forth the first set July law of clearly federal as clearly established Having defined the boundaries Then, legal con- 12, considering the 1989. for ineffective as- federal law established (affirmed of the state habeas clusions counsel, analyze, quickly we sistance we Supreme Georgia), Court of by the that the state habeas reject, the notion those conclusions analyze whether clearly “contrary to” court’s decision to, application an unreasonable contrary or Then, at federal law. we look established of, federal law. clearly established whether the question: the more debatable “unreasonably court made an state habeas Landscape Legal A. clearly established federal application” of cited, and have not Appellant has not 2254(d)(1). § law. See 28 U.S.C. case, found, July any Supreme Court as 12, 1989, materially indistinguish- that is “Contrary To” judice. of the case sub able from the facts date, however, it cannot be By that same reiterate, a court’s deci To state that the benchmark for ineffec- disputed “contrary clearly to” established sion is claims was assistance of counsel tive applies if it a rule con federal law either 668, Washington, 466 U.S. Strickland forth tradictory governing to the law set (1984). 2052, 80 L.Ed.2d 674 To 104 S.Ct. if it at a by Supreme Court or arrives present day, has not been Strickland Supreme different result Court to serve materially modified and continues containing a case case when faced with Williams, See 529 U.S. as the benchmark. facts. su materially indistinguishable (stating at “the 120 S.Ct. Part III. the state habe pra guid- provides test sufficient Strickland correctly cited Strickland as the as court virtually all ineffective- resolving ance for Furthermore, appropriate legal standard. claims”). assistance-of-counsel correctly explained Appel the court Strickland, established a Court if prevail only under Strickland lant could adjudicating inef- two-prong standard for performance he could show both deficient claims: fective assistance of counsel such, the habeas prejudice. As state First, [petitioner] must show govern decision did not contradict court’s performance was deficient. counsel’s noted, already Additionally, law. ing that counsel made requires showing This case that Supreme there is no Court was not so serious that counsel errors indistinguishable from the facts materially functioning “guaranteed as the counsel Hence, Part supra of this case. See IV.A. by the Sixth Amend- [petitioner] *19 not court’s decision was the state habeas Second, [petitioner] must ment.” law. clearly established federal performance contrary show that the deficient 1243 Application” (citing 2. id. at 1314 “Unreasonable Kimmelman v. Morri- son, 365, 2574, 2586, 477 106 U.S. S.Ct. 91 application” an “unreasonable is Again, (1986)). L.Ed.2d 305 “objectively application an unreasonable” “ supra of federal law. See Part III. The scrutiny ‘Judicial of counsel’s ” court concluded that state habeas performance deferential,’ must be highly lant’s ineffective assistance claim failed on and courts “must avoid second-guessing performance prejudice both the performance.” counsel’s at (quot Id. 1314 explain of prongs Strickland, Strickland. We first 689, ing 466 at U.S. 104 S.Ct. principles 2065). law general related to the at ‘indulge “Courts must [the] performance prong apply and then those strong presumption’ that perfor counsel’s principles to this case. then set forth We mance was reasonable and that counsel principles prejudice general significant related ‘made all decisions the exer ” apply principles prong professional those accord- cise of reasonable judgment.’ Strickland, ingly. (quoting Id. 466 at U.S. 689- 2065-66). 90, Therefore, 104 S.Ct. at a. Deficient Performance incompetent “counsel cannot be adjudged performing particular way in a Principles i. of Deficient Performance16 long approach as the ‘might taken performance For to be defi ” be considered trial strategy.’ sound Id. cient, that, be in light must established (quoting Darden v. 477 Wainwright, U.S. circumstances, perfor of all the counsel’s 168, 106 2464, (1986)). S.Ct. 91 L.Ed.2d 144 range pro mance was outside the wide If the incomplete record is or un Strickland, competence. fessional 466 actions, clear about counsel’s then it is 690, at 104 at 2066. In other U.S. S.Ct. presumed that counsel exercised reason words, decisions, reviewing when counsel’s professional judgment. able See id. at possible issue is not “the what is or ‘what Thus, presumption 1314-15 n. 15. af prudent appropriate, only is or but what is ” performance forded counsel’s “is not ... constitutionally compelled.’ v. Chandler particular lawyer defense in reali (11th States, 1305, United 218 F.3d 1313 and, then, ty focused on deliberately decid Cir.2000) (en banc) (quoting Burger v. specific ed to do or not to do a act.” Id. 776, 3114, 3126, Kemp, 483 U.S. 107 S.Ct. Rather, presumption “that is what (1987)), 97 L.Ed.2d 638 cert. denied 531 particular lawyer defense did at trial —for 1204, 1217, 121 U.S. S.Ct. 149 L.Ed.2d 129 example, presented what witnesses he or (2001). Furthermore, burden of “[t]he did not acts that some rea —were persuasion petitioner prove, by is on a lawyer might (emphasis sonable do.” Id. evidence, preponderance competence added). performance that counsel’s was unreason Strickland, Moreover, Id. (citing able.” 104 S.Ct. reasonableness “[t]he 2064). persuasion, though This burden of performance objective of a an counsel’s insurmountable, heavy inquiry.” petitioner is a one. See Id. at For a 1315. . States, Recently, (citing in Chandler v. United 218 habeas court. See id. at 1313 n. 10 Cir.2000) 776, 3114, (11th (en banc), fully Burger Kemp, F.3d S.Ct. we 483 U.S. 107 (1987); explained principles underlying Wainwright, deficient 97 L.Ed.2d 638 Darden v. 168, 2464, performance in 477 U.S. 106 S.Ct. L.Ed.2d 144 the context of (1986); phase. principles Washington, These flow from three Su- Strickland v. 466 U.S. 668, 2052, (1984)). preme July Court cases decided before 104 S.Ct. 80 L.Ed.2d 674 Here, pertinent prin- Supreme date 1989—the on which Court summarize most Georgia ciples affirmed the decision the state from Chandler.

1244 B, lawyer’s strat- and so on. The course he “must es- performance, deficient show inquiry A.... is [0]ur was course egy counsel would competent no tablish is, strategy, that this limited to whether did that his counsel the action have taken A, a reasonable might have been course lawyer’s strategy, uphold Id. To take.” one. attempt to divine “need not a court underlying the processes

lawyer’s mental Chandler, (emphasis at n. 16 218 F.3d 1315 at 1315 n. 16. strategy.” added). Id. Moreover, ques- relevant “[t]he were counsel’s choices tion is not whether rules Finally, absolute “[n]o they were reason- strategic, but whether performance what is reasonable dictate 470, Flores-Ortega, 528 U.S. Roe v. able.” Id. at 1317. Absolute lawyers.” for 1029, 1037, 481, 145 L.Ed.2d 985 120 S.Ct. counsel’s inde interfere with rules would (2000) Chandler, 218 F.3d at (quoted in constitutionally is also pendence—which 16). n. would restrict the wide protected —and case, proper inquiry In this tactical making have in latitude counsel was not whether for the state habeas court such, at a id. As sentenc decisions. See lawyers acted County Appellant’s Cook required counsel is not ing proceeding, choosing strategy in their over reasonably evidence, even if mitigation all Rather, County strategy. the Lowndes evidence would have mitigation additional “the reasonable proper inquiry strategy. compatible with counsel’s been challenged counsel’s County] ness of [Cook Thomas, (citing at id. Waters See par facts of [this] conduct on the [based] Cir.1995) (en (11th 1506, 1511 46 F.3d of [Cook ticular viewed as of the time banc)). complete failure Counsel’s Strickland, conduct.”17 County] counsel’s does not nec present mitigation evidence at 104 S.Ct. at 2066. The 466 U.S. performance, deficient essarily constitute identify the burden was if is available. mitigation even evidence County acts and omissions of Cook counsel cases) Waters, (citing 46 F.3d at 1511 See that, view, not the result of his 1319). (cited Chandler, at 218 F.3d professional judgment. See id. reasonable Appellant identified such acts and After Application Principles ii. omissions, court was then the state habeas Appellant’s argues that his Cook whether, light to “determine required repli lawyers were deficient in not County circumstances, the identified acts all the cating strategy range were outside the wide or omissions flawed, as lawyers. argument is competent assistance.” professionally stated Chandler: added). course, one cir (emphasis Id. Of A, it lawyer pursued If course a defense the fact that Cook cumstance was reasonable immaterial that some other of the Lowndes cognizant counsel was (that lawyer did courses of defense County sentencing strategy and its result. all) at existed and that the not think of Looking A not a first counsel’s lawyer’s pursuit of course was A, acts,18 identify any act of Appellant fails to choice between course deliberate course, strategy. pursued two-prong Ms. Griner repeat our task is not to 17. Of Instead, duty inquiry. attempted prove Appellant’s our is to determine innocence objective- court was (and whether the state habeas sentencing), spent avoid but she also inquiry. ly reasonable in its Strickland sentencing. preparing Appellant's time supra Part III. Studstill, hand, relying on On the other Mr. experience, that a Cook was convinced above, discussion 18. As is evident from our death; impose would convict II.C.4, supra counsel see Part *21 Cook County counsel that falls outside where concedes per- counsel range wide professional competence. formed reasonably. Since the Lowndes Granted, the Cook County strategy per- County lawyers unearthed sufficient miti- haps could have been better. For in- gation evidence to competent render assis- stance, Davis, Mr. a Lowndes tance, at- County the Sixth Amendment did man- torney, faulted Ms. Griner for not putting date further investigation by the Cook more resources and emphasis more into County lawyers20 who, according Ap- — County sentencing stage. pellant, How- could have freely borrowed from ever, “[t]est for ineffectiveness is not the investigative work of the Lowndes whether counsel more; could have done County lawyers. This is especially true perfection is not required.” Waters, 46 considering that Ms. Griner lead F.3d at 1518. “Nor is the test whether the counsel for both trials. best criminal defense attorneys might have second, and primary, omission iden- done more.” Id. Counsel always almost tified by Appellant is a failure can more, do but the Constitution requires readily mitigation available evidence. As only that counsel act reasonably. Here, II, noted in Part County counsel the state habeas court was objectively rea- called witnesses, nine whereas Cook Coun- sonable concluding that the acts of Cook ty only counsel called four witnesses. Ap- County counsel with regard to sentenc- pellant argues’that Cook County counsel ing though less than suggested by Mr. — was constitutionally compelled call most Davis—were nonetheless reasonable. or all of the witnesses from the Lowndes

Turning to sentencing. omissions by identified On subject, Appellant, the first alleged state habeas court unreasonable concluded: omission is a failure to investigate. A review of the trial transcripts from support contention, of this Appellant sub- the Cook County trial and the preceding mitted by affidavits potential mitigation Lowndes County trial indicate witnesses, many whom did not testify at distinction between testimony heard either trial.19 See supra Part II.C.2.C. at the corresponding sentencing phases This contention lacks merit. The Cook was the number of witnesses testifying, County lawyers, by either personal experi- while the substance of their testimony ence, a review of the both, transcript, or was very similar. Counsel at the Cook fully were aware of the mitigation evidence trial made a strategic decision in presented at the Lowndes County trial— regard to what mitigating evidence to Mr. Studstill inject thus chose to Waters, error into 46 F.3d at 1513-14. the trial so the conviction or sentence could be appeal. being reversed Besides there no constitutional re- quirement for the Cook lawyers to procure witnesses, additional character Ap- 19. We previously spoken have unfavorably of pellant has not shown that the such affidavits: lawyers acted incompetently failing pres- It practice common is petitioners at- expert psychiatric ent testimony. No such tacking their death sentences to submit affi- testimony presented County, in Lowndes davits from say they witnesses who could where concedes his counsel was supplied have mitigating additional circum- Furthermore, competent. the lone affidavit evidence, called, stance or, had they been if from a psychiatrist in the state habeas record called, they were they had been asked the is purely little, conclusory and of any, if evi- right questions.... But the existence of dentiary Waters, value. 46 F.3d at 1514 Cf. affidavits, such artfully though drafted they (rejecting conclusory presented affidavit be, may usually proves significance. little of psychologist). witness....”); Profl Model Code sary the substance examining present. (1969) (stating, 5-9 EC Responsibility that trial finds testimony, this Court a witness becomes who advocate “[a]n reasonable actions counsel’s *22 position of ineffective unseemly and in the the Cook at circumstances of the light credibility,” “[t]he own arguing county trial. are and a witness an advocate roles of conclusion legal this whether determine To has inconsistent”). Although attorney an reasonable, examine objectively was of interest the duty to advance “ethical an in testified who witnesses each an by limited client,” duty “is that [her] County. in not Cook County but Lowndes the with comply to duty solemn equally divorced wife First, former Appellant’s con- professional of standards law and County pro- the Cook shortly before him F.2d Dugger, 911 v. Card duct.” that testified Griner ceedings. Ms. (internal Cir.1990) quotations (11th 1503 testify. All upset to too was ex-wife lant’s testify omitted). to decision Ms. Griner’s that, attorneys County agreed Cook three County in client Lowndes of her on behalf divorce, calling Appel- the recent to due cannot one But arguably unethical. was Even imprudent. would be ex-wife lant’s unprofes- that she acted argue plausibly markedly biased Alderman, who was Ms. with when, ethical accordance in sionally the habeas at 1985 favor of in County. testify Cook norms, in did not she was strategic decision hearing, conceded co-workers Fourth, Appellant’s one of Appellant’s ex-wife. to call not made did County, but he at Lowndes testified ex-wife, Second, Appellant’s besides trial. Pre County the testify at Cook not who testi- relatives other the four three light would shed sumably, a co-worker testify in did not in Lowndes fied away from home character Appellant’s testified two relatives Only County. Nevertheless, the co-work road. on the sis- the Cook at trial — significantly not differ testimony was er’s County) (who in Lowndes also testified ter substance, ent, from that in (who testify not did niece at cross-examination On niece. sister and the state habeas County). As in trial, co-worker the the however, testimony of indicated, court the road driven on not he had conceded County relatives was five Lowndes Appel unaware and was testimony of as same substantially habits while on drug and alcohol lant’s Calling County relatives. two Cook cross-examination, Based on road. the stand relatives three additional have could decided counsel reasonable ofMore cumulative. have been would in Cook co-worker calling the against See Chan- necessarily better. is not same Chandler, at 1322 F.3d 218 County. Cf. dler, at 1319. 218 F.3d reasonably acts counsel that trial (noting fear testimony Third, witness calling Griner’s a character Ms. not cross-examination). substantially Further not damaging in Lowndes lacks Appellant’s more, habeas record testimony of the state different willing how the co-worker importantly, More evidence and niece. sister County. testify in Cook gener conduct and able ever, professional rules of unclear, or incomplete is testifying the record lawyers Where disapprove of ally acted counsel presume that advo must they are also a court which in proceedings Head, 185 Williams See, reasonably. Profl Model Rules e.g., cates. (11th Cir.1999), cert. 1223, 1227-28 3.7(a) (2001) F.3d (stating “[a] R. Conduct 2696, 147 denied, 1246, 120 S.Ct. U.S. 530 at a trial advocate act lawyer shall (2000). L.Ed.2d a neces- likely be lawyer which Nonetheless, Appellant just did because counsel might have done more does not mean incompe- state a number of affidavits from counsel was Chandler, tent. See 218 F.3d at co-workers and who they friends swore Appellant, would have testified for if Fifth, deputy prison from the where doubt, personal No testimony asked. from Appellant was incarcerated testified at the a non-family probably member would have Lowndes County not at but the Cook helpful Appellant. been appears This to County trial. Every counsel, reasonable (albeit be true hindsight) light of the Appellant argues, would have called the County prosecutor’s prison argument deputy to testify, because such a *23 witness would have closing Appellant’s about lack shown of friends. to be prisoner a model whose death would be a attempted procure Ms. Griner testimo- loss society. Like the co-worker wit ny co-workers ness, however, Appellant has not shown fact, friends. thought Ms. Griner prison deputy willing or available neighbor appear, would but at the last testify at County the Cook trial. No minute, Moreover, she learned otherwise. presented evidence was to the state habeas Ms. Griner tried to locate a co-worker court prison that the deputy, or other (suggested by Appellant) who had been on prison official, was -available or willing to Appellant, the road with but the co-worker give testimony. Again, favorable where event, could not be found. In any rather unclear, the record is presume we must co-worker, rely than on a Ms. Alderman Chandler, counsel acted reasonably.22 See informed the about trou- . 218 F.3d at 1314-15 n.15 employment history ble-free through the sum, Appellant’s primary contention (the testimony of a law enforcement officer is County provided that Cook counsel inef- agent).21 Finally, GBI Ms. Alderman re- by failing fective assistance to present a prosecutor’s butted the contention that Ap- replica of the County mitigation friends, pellant lacked by explaining in case. In accordance with our discussion closing argument that friends however, above, the state habeas court’s great away. lived distance conclusion that County per- counsel County perhaps counsel could have competently pursuant formed to Strick- procure done more to testimony of co- reasonable, objectively land is in light even instance, workers and friends. For coun- of the fact that Cook counsel was possibly subpoenaed sel could have a co- aware of the Lowndes strategy (even worker though the witness suggest- and its in avoiding penal- success the death by Appellant ed could not be located and ty for a different murder with different served). thus could not have been aggravating But circumstances.23 Appellant's present longer willing habeas counsel criti- was no or able to 21. testimony. same agent cizes this decision since the GBI did not personally Appellant, know but in the same 23.Appellant heavily relies our decision in brief, argues having testimony counsel that 1184, Turpin, Collier v. 177 F.3d 1198-1204 from law enforcement officials is a sound (11th Cir.1999). distinguishable Collier is strategy. First, Collier, ways. at least two we ad claim; such, pre-AEDPA dressed a year elapsed 22. More than a between the required were not to accord the same level of and Cook trials. It decisions, deference to state court as we are entirely possible prison deputy’s is that the required post-AEDPA. now to do See time, opinion Appellant changed in that or Williams, 402-03, 529 U.S. at 120 S.Ct. at reason, prison that deputy for some other 1518.

124 8 as- decision cannot be reviewed. The Prejudice

b. proceed on prejudice sessment of should Prejudice Principles i. assumption that decisionmaker be prejudice, it must To show conscientiously, im- reasonably, that, unpro for counsel’s established but that applying the standards. partially there is a reason performance, fessional govern the decision. proceed the result probability able 694-95, 104 at S.Ct. at 2068. Id. have ing been different. would 694, Strickland, at at 104 S.Ct. U.S. Principles ii. Application of enough [petition “It is not for the already have held that We the errors had some conceiva to show er] un objectively court state habeas proceed on the outcome ble effect ren concluding that counsel reasonable ...,” “[v]irtually every act or ing because competent assistance. The state dered that test.” of counsel would meet omission held, deny as an additional basis for Id. at 2067. Neverthe S.Ct. relief, satisfy failed ing less, petitioner “need not show *24 of assis prejudice prong the the ineffective likely deficient conduct more counsel’s our as that inquiry tance standard: to in the case.” than not altered the outcome holding court is whether the state habeas Rather, 693, 104 at Id. at S.Ct. 2068. concluding in objectively was reasonable here, where, petitioner challenges a as a the prejudiced by that was not sentence, whether question death “the is to County failure of counsel Cook that, ab probability there ais reasonable County mitigation the Lowndes case. errors, ... would sent the the sentencer prejudice, the habeas Regarding state aggra have the of concluded that balance concluded: court and circumstances did vating mitigating County not death.” Id. at 104 S.Ct. warrant The murders in Cook were com- at 2069. than egregious mitted in a more manner County. in There the murder Lowndes principle particularly is One Strickland one, the were two victims instead of and judice: pertinent to the case sub presence place took in the of murders making whether the determination the victims’ children. in the re- specified the errors resulted in County The murders Cook were pre- quired prejudice, a court should by eyewitnesses, and observed' three judge jury sume ... the or acted any provocation were committed without An according law. assessment the part on the of the victims.... of a more likelihood result favorable to case, in County evidence the Lowndes possibili- exclude the defendant must the certainly arbitrariness, while sufficient authorize ty whimsy, caprice, conviction, in circumstantial “nullification,” more A defen- and like. [Appellant] has not shown this no luck of nature. dant has entitlement a decisionmaker, by he prejudiced even if a lawless Court lawless Second, Collier, a as examina- had worked hard as child and an adult in trial counsel’s family jury impression support close relatives.” Id. gave the "the that the his and tion Alderman, contrast, nothing By in this Ms. [the knew little or about witnesses through Appellant's direct petitioner.]” 177 F.3d at 1202. Counsel her examination niece, presented Appellant "develop[ image petition- as an sister and ] [the failed being generally good family man who worked hard as a human who was had er] as citizen, family support good family good child as an adult to public and a man supra poverty and relatives. See note background had a but who who strategic by choices made trial coun- Interestingly, the Cook County jury did sel.... rely not on County the Lowndes murder as an aggravating Instead, circumstance. premise A core underpinning County jury, death, Cook in imposing argument County is that the Cook solely relied on events Cook County County Lowndes trials concerned essen- tially aggravating the same crime. As the By state habeas circumstances. compari- however, son, recognized, juries court County Lowndes rely did not Cook did not County. events Cook sentence for the same crime. As noted, habeas state The foregoing by is demonstrated supported murders were by juries the fact that the quite two received very evidence, strong and the murders distinct instructions. supra Part III. particularly egregious parents —two Appellant’s argument depends C.3. on the killed in front of their small children. As assumption that the County jury indicated our discussion regarding the must have considered the performance prong, the present- evidence murders, because evidence about the Cook ed sentencing phases two differed County murders was admitted. We can volume, only not in substance. Addi- accept assumption because is mitigation tional evidence of contrary to Strickland. Strickland teach good probably character would not have es that courts must assume “the decision- strong overcome aggravating circum- maker reasonably, conscientiously, Therefore, stances supporting death. impartially applying the standards *25 that state habeas court was objectively reason- govern the decision.” 466 U.S. at that, in able concluding even if the Cook S.Ct. at 2068. the County Lowndes County jury had heard the Lowndes Coun- case, the jury “standard” for the to consid ty case, mitigation there was not a reason- encompassed er two circum aggravating probability able Appellant would have re- (the stances robbery Hodges armed of ceived a life sentence. the commission of an armed robbery for the purpose things of of receiving mone V. CONCLUSION value). tary Neither of circum these Appellant has failed to show that the stances concerned in County. events Cook Georgia courts of amade decision that was County jury The Lowndes did not find to, contrary application anor unreasonable Appellant guilty aggravating of either cir of, clearly established federal law. There- cumstance; without finding, such a the fore, correctly the district denied County jury Lowndes could impose not Appellant’s petition for a writ of habeas Simply put, death. the instructions corpus pursuant § to 28 U.S.C. 2254. forbade the County jury Lowndes the in considering events AFFIRMED. during penalty phase, pursuant the to WILSON, Judge, Circuit dissenting:

Strickland, we the assume Coun ty jurors followed their instructions. respectfully I dissent from the court’s case, opinion in because I this believe that contrast, County jurors the Cook representation Appellant the at permitted, in received accordance their instructions, penalty the phase of his case fell of to consider both short the Cook constitutionally acceptable murders and the standards. The circumstances, murder aggravating Appellant’s as record that attorneys indicates robbery well as the armed County. very did little to that ensure their client of that success were aware at counsel case mitigation credible submit would facts trial. Given strategy in that this defi- Absent phase. sentencing eminently rea- an it was Appel- that likely instant it is performance, cient County counsel a life sentence for Cook decision received sonable have lant would strategy general penalty. the same the death to use rather than to elect trial. second Performance Deficient potential- However, settling on simply that points out correctly majority The discharge not strategy does ly reasonable perfor- claims of deficient evaluating when responsibilities attorney’s constitutional an strategic at look mance, inust attorney’s conduct her client. elected lawyers that the course must still at trial strategy that pursuing those actions take, if and determine reasonableness to Strickland’s conform Chandler, 218 F.3d See were reasonable. omissions) (or standard, actions ie. the whether It is irrelevant n. 16. at 1315 wide within the fall still must counsel they pur- strategy decision select competence. professional range other, alter- a vis some wise vis sued was My re- Chandler, at 1313-14. 218 F.3d (or selected not that was strategy native that indicates the record view considered); ques- relevant not even take lawyers did not lant’s Cook that was actu- strategy whether tion is that to ensure steps basic the most even implement chosen, the efforts ally would be successful. strategy chosen their reasonable. might have strategy, been lies this case conduct The unreasonable See id. direction, strategic of a in the selection counsel did strategy What thereof) (or lack in the effort rather but phase of sentencing at pursue A look strategy. close implement that they settled To extent case? point.1 illustrate this will record penalty phase, strategy for the any clear dem- First, the record reading a fair to focus on have decided appear to counsel little remarkably that there was onstrates reflecting Appellant’s testimony presenting for the preparation substantive reputation *26 character positive generally trial. Appellant’s very late in until phase examina- Alderman’s the crime. prior to his reasons explaining testimony, Davis’s the niece sister at Appellant’s and tion of Appellant’s Cook withdrawing for questions well as the phase, as sentencing team, first indication is the County legal Grissom, reflected agent to G.B.I. directed attorneys Appellant’s that record the aim. general this for the planning sentenc- little engaging this same employed attorneys The the trial.2 record prior to phase ing strategy, and remarkably about little findings tell us challenge fact state not the Appellant did theAs during prior to fact, and actually occurred what cor- findings this court court’s habeas trial. penalty phase of Given the pre- findings the of fact a those rectly afforded detailed, findings, factual However, relevant state absence the sumption of correctness. appeal to carefully record examine the findings are of fact court's relevant habeas what, the anything, we learn about if that see While found unhelpful. the rather prior to and counsel phase actions sentencing took the "preparation sentencing phase case. during the trial, trial, during during the and place before sen- guill/innocence and between recess Griner trial," and that Alderman not 2. Davis testified the court tencing does phase of innocent, thus did Appellant was "prepa- of that believed or extent the nature describe hearing in sentencing prepare for the indeed, to ration,” specific exam- little offers no guilty. Appellant was found event state court’s alleged ples efforts. of these largely bereft of any specific references to period that all almost of the relevant tacti- preparation, actual opposed to mere decisions, cal such as which witnesses to vague discussion, in pretrial call, stages. appear to have been made. The fail- that, Griner testified both pre-trial and ure to have this tactical discussion earlier during she putting “considered” helped ensure that there be would little on various witnesses the sentencing time to enact when the sentencing hear- phase, but her testimony vague as to ing pass, came to though Appellant’s coun- of any substance discussions she had sel likely thought they would have more with her co-counsel about these witnesses. time they than fact, did. the verdict From her testimony, we glean can forty came five minutes after the jury counsel had at least developed ap- retired, some and the phase sentencing began proximation of a sentencing phase strategy (within almost immediately minutes), five pretrial stage, though specific tacti- catching Appellant’s attorneys off-guard. cal decisions were not made at that time. Faced with this problem, Appellant’s coun- testimony Studstill’s indicated par- that he sel inexplicably failed seek a continu- ticipated in general pretrial discussions ance after the verdict so that they could about which witnesses to call at the sen- locate prepare necessary sentencing tencing phase, but he admitted that did he phase witnesses. not himself interview or any pro- contact procrastination This respect to tac- spective witnesses. testimony His further tical planning led inexorably to counsel’s demonstrates that pretrial counsel’s prepa- inability to undertake the actions neces- largely ration was dedicated considering sary to mount a credible sentencing-phase and discussing lines various of defense at defense. For one thing, they failed to phase, to making subpoena any witnesses to testify for the solid commitments about which witnesses defense at the sentencing phase. Aider- or specific call which arguments ad- man and Studstill admitted that they did

vance. Alderman denied that there was not even attempt any contact any preparation substantial pretrial in the witnesses from the sen- stage for the sentencing hearing. tencing phase, or potential other char- Remarkably, the testimony of all three witnesses, acter that did not happen to be attorneys lends support to Appellant’s present in the gallery at the claim that most of the substantive discus- trial.3 Griner claimed to have tried to sion of the sentencing phase took place contact a co-worker (presumably co- during forty-five minutes between the worker that testified Lowndes County), conclusion of guilt phase jury’s and the and one of Appellant’s neighbors, but *27 entry of a verdict. It during was this brief found these witnesses unavailable.4 Gri- Alderman, 3. year less than a out of law school lawyer, enced preparing faced in for the con- time, at the had never tried a criminal case of duct of the day day, coupled trial to any kind before the Cook trial. Yet it trial, Studstill's absence for of the most doubt- was she who majority conducted the vast less contributed to the foresight lack of Appellant's examining every witness at preparing locating potential or witnesses for phases both Appellant (excepting at the sen- the sentencing phase. tencing phase), making opening arguments at guilt both the sentencing phases, and appears This only be the to evidence in the closing sentencing phase. Alderman record suggesting that Griner or others made played away far and conspicuous the most an effort to any that ensure character witness Appellant’s defense, role in courtroom a task present would be testify to at the Cook likely to be overwhelming any for new attor- proceeding. ney. she, daunting that inexperi- task an that their tes- possibility for the prepared these wit- either of subpoena not

ner did sentencing necessary at a than be any timony more would nesses, make apparently or it made less presence. This would have their hearing. to secure cursory effort ap- up- attorneys been “too they three would have Appellant’s likely Not one of that attempt to any serious was found pear to have made after testify to set” valuable witnesses Indeed, that ensure wife submitted Appellant’s guilty. Appellant’s County, such from Lowndes affidavit, dismay at not be- expressing an with whom guard prison co-worker and at the a witness or called as ing prepared friendship, were developed a County trial. provide to similar present to secure and again, this failure Once fact, that end- the witnesses testimony. sentencing witnesses prepare at the the defense testifying for up ed really surprising, because phase is hot Ap- such as people, were sentencing phase no have been almost appears to there niece, hap- that just sister pellant’s to the prior discussion of tactics specific in the courtroom present to be pened the con- separated that minutes forty-five phase of the guilt the conclusion phase from sen- guilt clusion she as much when trial. Griner admitted no phase. Of course there was tencing available that each of the witnesses noted when prepare or witnesses time secure to calling at the sen- allegedly debated she sentenc- planning for the meaningful persons phase were all that tencing than an begin not less ing phase did until If no for the trial. fortuitously present hearing be- sentencing hour before to could have attested one that one an- failure consult gan. Counsel’s to present to be happened had character develop sentencing- a coherent other and might day, Appellant that the courtroom earlier, with their coupled phase strategy any charac- been able not have failure to continuance seek inexcusable phase. sentencing ter witnesses at read, signifi- led to the verdict was after clearly indicates Secondly, record in their sen- costly cant and deficiencies pre- attempt attorneys did that the The G.B.I. phase presentation. tencing they that even- witnesses pare any of the light Ap- on testimony shed little agent’s calling at the tually considered character, did not agent as the pellant’s that attorneys admit phase. All three testify only Appellant and could know to interview pre-trial no effort they made indicated Appellant’s background file that testimony poten- that the and discuss the consistently employed. had been that he the sen- give during tial witnesses were sister and offered useful niece claimed Griner hearing. While tencing (if concerning Ap- unprepared) testimony prospective sentenc- counsel talked genial positive background pellant’s recesses, during trial ing phase witnesses family. relationships with his extended time there no she admitted However, hardly a testimony for their testi- actually prepare witnesses life portrait comprehensive trial. Had the witnesses during the mony these substan- Neither of and character. testifying been briefed up that ended had lived with witnesses tive character likely that the prospective questions, *28 adult; any- knew Appellant as an neither a more co- formed testimony would have relationships, non-familial thing about his pri- character picture Appellant’s of herent testimony upon relied of their and much Furthermore, likely it or to crime. his immediate reports about secondhand preparation, pre-trial that with reasonable capitalized on (also family prosecutor The life. pres- Appellant’s daughter and wife courtroom) relationship between been the distance would have ent in the and his two significant present, be they not did undertake character witnesses in his closing state- any reasonable pre-trial effort to develop a ment, where he “[Appellant noted that is] coherent or comprehensive senteneing- the kind of man who doesn’t have a phase presentation. They were amazingly preacher to come speak him; for lucky when they looked around the court- Mend; personal dose, dose family room after the verdict was read hap- added).5 (emphasis member.” pened to locate spectators two that could provide some useful

Additional character testimony character witnesses were ex- on Appellant’s available, course, istent behalf. Of and could this tes- easily have timony was supplied unprepared testimony and easily that would have refuta- devel- ble. oped Due a more comprehensive their portrait familiarity with the case, Lowndes County nature.6 This put lawyers failure to knew forward a that credible this mitigation defendant case had a solid group not any the result of available choice; strategic rather, character witnesses that could provide was the result of poor planning comprehensive sort of and a charac- lack of ter reasonable evidence they effort. needed. Yet they did nothing to secure this testimony. No com- course, Of when assessing per- counsel’s petent counsel would have done so little to formance, we do not ask whether counsel’s ensure their client’s survival. This con- decisions were strategic, but rather wheth- duct fell well short of any set of profes- they er Roe, reasonable. See norms, sional and should not be considered U.S. at 120 S.Ct. 1029. Cook County objectively reasonable under the first counsel chose to present did; what they prong of Strickland. our inquiry must focus on whether that presentation might reasonable, have been The majority opinion, in finding this sort given all of the circumstances. See Chan- of conduct constitutionally acceptable, con- dler, 218 at F.3d n. 1315 16. tradicts several I authorities find relevant case. In Collier v. Turpin,

Looking at what attorneys encountered did, analogous actually part I conduct on the dispute don’t gener- that the of defense al choice of counsel the sentencing phase phase strategy of a death penalty (presenting case. evidence that reflecting pre- positive crime defense counsel called character and ten history witnesses to Ap- stand, pellant) one, presumably was a testify reasonable pos- about especially light aspects itive the success character, that strategy enjoyed Collier’s and the at the marked proceeding. contrast between How- his overall char- ever, Appellant’s lawyers did acter next to and his noth- actions at the time of the ing to effect that strategy. They did crime. questions defense counsel subpoena any witnesses, they pre- did not asked elicited testimony suggesting any pare of the witnesses that happened to Collier ‘good’ “[H]ad a reputation, that he prosecutor 5. The had access to the Lowndes 6. The existence of additional character wit- well, transcript as so he had to know apparent nesses was to Cook counsel did fact have friends and the Lowndes transcript. trial family close willing speak members on his addition, profusion of affidavits in the behalf. His comments about Appellant being suggests record that additional character wit- questionable friendless were light of this nesses available could have been uncovered fact; however, Appellants' attorneys are investigation. reasonable squarely to giving blame prosecutor opportunity credibly make such a seem- ingly argument. incorrect *29 on the witness neighbors two mother and hard worker as a known generally was the defen- that three testified that he stand. All family, and of his care who took a not violent boy” and and veraci- a “nice truth was for dant reputation good a had However, the re- played 1201. also Collier, at Counsel 177 F.3d individual. ty.” had that about Collier’s questions psychiatrist of a no asked corded voice counsel in- specific or more disposition, Williams, did little his who upbringing, examined positive generally he that in which statement stances Williams’s recount than Indeed, coun- itself. injuring manifested character pains to avoid taken had once im- the give to presentation tended surprising- sel’s robbery. Not in a bystanders know not did the that witnesses pression a death sentence. received ly, Williams that concluded The Id. Collier. ample, case, there was In Williams’s none almost “presented counsel in of situations evidence readily available back- of Collier’s available evidence readily crime, had to his prior which Williams have led that would and character ground character, there and admirable displayed Id. penalty.” death jury to eschew evi- unexplored body of large a was also distinctly analogous is case The instant child- of Williams’s the difficulties dence of hold- of our My interpretation to Collier. dis- been could have evidence hood. This de- following: when is the in ing Collier effort; in much without and used covered pursue to a attorneys decided have fense failed to return fact, counsel Williams’s char- positive on the case based mitigation ministry offi- prison call from telephone defendant, testimony that acter of testify Williams to who offered cial de- picture of a beneficial produce would environment regimented in a thrived available, readily is disposition fendant’s in earned carpentry degree of a proud to make some effort not is unreasonable nev- However, counsel Williams’s prison. testi- portion of a substantial present evidence, part in this much of er uncovered attorneys case, Appellant’s In this mony. begin prepare they did not because mitigation present a clearly decided “until a week before phase character. upon Appellant’s based strategy Williams, 529 U.S. the trial.” presented have Testimony that would found Supreme Court S.Ct. life portrait of comprehensive failure to secure attorney’s that Williams’s available; readily character was additional, mitigation readily available this model, i.e. fact, successful had a counsel stan- professional “fell short evidence to use in County transcript, the Lowndes under the dards,” and was unreasonable They did mitigation their case. preparing prong first Strickland. testimony the available most of not case, Ap- or try to locate the conduct In instant they elected because that would deficient witnesses even more attorneys prepare pellant’s credible. unacceptable mitigation case have made conduct found than the mind, additional, unreason- objectively Williams, This, is useful my Williams. per- deficient evidence, that constitutes with the conduct able consistent mitigation prong of the counsel, first under formance by Williams’s employed strategy test. Strickland unrea- to counsel’s went undiscovered due their client’s investigate sonable failure analogous to facts closely Even more law- background. of the Su- substance of this case investigate have to even yers didn’t Tay- holding Williams preme Court’s character; background lant’s mur- was convicted lor. After Williams to a amounts transcript the defendant’s der, put counsel defense *30 case, matter, ready-made mitigation completely As a general the introduction of general strategy consistent with the Cook character evidence is most useful when it Yet, County pursue. counsel wanted to presents an image of the defendant as a they begin seriously because didn’t dis- person, whole shedding light positive forty-five cuss tactics until minutes before aspects of the defendant’s life in varied sentencing hearing began, they were A purpose contexts. central of presenting present anything unable to more than a positive character evidence is to emphasize County hollow shell of the Lowndes miti- sharp distinction between the defen- gation case the Cook trial. The reputation dant’s overall character and and attorneys conduct of Williams’s looks dili- the defendant’s criminal conduct. To do gent by comparison. The actions successfully, this defense counsel must attorneys lant’s took cannot should not present comprehensive picture of the objectively be rationalized as reasonable character, defendant’s life and so that a authority, under current and the state ha- jury can many consider of the defendant’s applied beas court unreasonably federal actions, relationships relevant such as finding. law when it made that (both relationships his family his im- extended), friends, mediate co-work- Prejudice ers, acquaintances. and other close When majority correctly points out that evidence of a positive defendant’s charac- the aggravating factors in the source, ter from only comes one is case exceeded that those naturally likely it weight, to accord less presented at the Lowndes represents merely it a fraction of the de- reality trial. This makes it somewhat identity. fendant’s overall evi- Character more difficult for to demonstrate not easily dence is dismissed when it that prejudiced by attorneys’ he was his sources, variety shedding comes from Nonetheless, unreasonable conduct. but light variety on a rela- defendant’s pres- for counsel’s unreasonable failure to it tionships, presents compre- and when case, mitigation ent a credible there is a picture hensive aof defendant’s life and probability reasonable that character. sentence would have been different. Often, testimony compre- presenting a The majority claims that the distinction hensive view of a defendant’s character is mitigation put between the cases forward Many unavailable. criminal defendants by Appellant’s counsel at the two trials is variety lack the breadth and of the close merely a quantity, differing matter of relationships prior that had volume, “only its not in its substance.” crimes, and thus character evi- This argument suggests mitiga- that presented penalty phase dence at the is presented tion case in Cook However, necessarily incomplete. when substantially presented similar the case testimony reflecting defendant’s character County, in Lowndes pre- neither available, variety angles from a is as it changed sentation would have the out- case, clearly was in the instant far I disagree. come. The substance of the powerful than testimony more character testimony presented at the Lowndes Coun- from one or two sources. ty considerably stronger trial was than present- counsel presented County, and the grossly incomplete ed a constricted and County testimony weakness of the Cook likely view of character and affected the outcome of that sentenc- relation- sister, ing hearing. ships. Appellant’s niece and useful *31 Appellant’s overall been, picture of the complete could may have testimony as their character lack of relevant character. This one of rela- light on only shed jury’s task much easi- respect testimony with made the character tionships, and his pre- prose- er, readily accept counsel had the relationships. they If could those County mitigation close Appellant Lowndes that had no sented the cutor’s claim had a much jury adju- would have the fate should be relationships, and his nuanced, tex- comprehensive, more crime. solely by reference to his dicated Appellant. tured view of readily the avail- Appellant presented Had that have evidence would able character this, and understood prosecutor The Ap- picture of provided comprehensive a the distinction' between pounced on the life, have jury’s the task would pellant’s two tri- presented at the mitigation cases sufficient evi- more difficult. With been statement, prosecu- the closing als. In his character, the Appellant’s positive dence of important the most thundered that tor the same have faced with jury would been dur- light to come to piece of information jury con- challenge the fact that the phase was the ing penalty the fronted, wife, namely pos- a lifetime of weighing a jury didn’t hear friend, against family relationships a member. and achievement or close itive close opportunistic his one prosecutor concluded nature of the crime. No The the horrific with the statement: certainty jury remarks how the would say can with testimony that have decided had this additional the sort of man [Appellant is] However, say I can with presented. preacher a to come been doesn’t have friend, close, him, in personal a I cannot have confidence speak certainty that So, say you I family member. it made on jury’s close decision when was the anything else you that more than incomplete presentation tells the basis of so days about the you’ve heard in three ledger. jury’s The verdict one side of added). (emphasis man. consideration of was rendered without its information, and is a relevant there highly closing remarks thus prosecutor’s The jury’s that the deci- probability reasonable remarkably strong emphasis on the placed have been different had been sion would Appel- of the weaknesses significance reason, For this privy to this information. very weaknesses presentation; lant’s successfully has demonstrat- had that would have been rebutted prejudiced by attorneys’ ed that he was reasonably. attorneys performed lant’s performance. unreasonable would County presentation prevented prosecutor from credi- have Conclusion (incorrect) that making argument bly of man that lacked conclusion, was the sort and trou- several salient close, positive relationships with loving, this case should be reem- bling facts about prosecutor so The fact others. County attor- phasized. importance of dramatically emphasized the neys transcript of the Lowndes had Appellant’s presen- in the the weaknesses dispos- hearing at their County sentencing (“[T]hat you any- more than tation tells sentenc- preparing Appellant’s al to use days in three about the thing you’ve heard transcript phase This ing strategy. man.”) just prejudicial how illustrates manual for nothing less than an instruction was. of relevant evidence omission portrait of put together a successful how to person whose actions on Appellant as testimony pre- The character sharp contrast of the crime stand provide night failed to sented prior to and person than an to the that he was anything other in- Indeed, after the crime. Appellant’s attor-

neys reasonably pursue decided to general

same strategy at the Cook County

case. Yet they neither subpoenaed, pre-

pared, nor steps took any to ensure that

any of the witnesses that testified at the trial would be available

and ready to testify Cook County.

fact, if Appellant’s niece and sister hadn’t

happened to be in gallery day,

Cook County might counsel not have been put

able to relevant character wit-

nesses at the sentencing phase. If this

performance is rationalized as something a

reasonable attorney done, might have

have rendered the word “reasonable”

meaningless.

Given the unreasonable omission of rele-

vant and available character evidence dur-

ing the penalty phase of this

integrity of the death is suspect. verdict likely on death row today

because of the performance deficient

his attorneys at sentencing phase

this case. I respectfully dissent.' BANK,

SUNTRUST as Trustee of the

Stephen Eugene Mitchell trusts f.b.o.

Muse Mitchell Joseph Reynolds

Mitchell, Plaintiff-Appellee,

HOUGHTON COMPANY, MIFFLIN

Defendant-Appellant.

No. 01-12200.

United States of Appeals, Court

Eleventh Circuit.

Oct.