Lyndon Fitzgerald Pace v. Warden, Georgia Diagnostic and Classification Prison ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 16-10868
____________________
LYNDON FITZGERALD PACE,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION
PRISON,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:09-cv-00467-WBH
____________________
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2 Opinion of the Court 16-10868
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
LUCK, Circuit Judge:
In seven months, Lyndon Pace raped and strangled to death
four women, three of whom were more than seventy-eight years
old. He was convicted and sentenced to death for the murders. He
now appeals the denial of his petition for a writ of habeas corpus
under 28 U.S.C. section 2254.
Pace makes five arguments on appeal. First, he contends
that the Georgia Supreme Court unreasonably applied Strickland
v. Washington, 466 U.S. 668 (1984), in denying his claim that his
trial counsel were ineffective because they failed to investigate and
present available mitigation evidence. Second, he argues that the
Georgia Supreme Court either failed to apply or unreasonably ap-
plied Darden v. Wainwright, 477 U.S. 168 (1986), in denying his
claim that the prosecutor’s sentencing phase closing argument vi-
olated his right to a reliable sentencing under the Fifth, Sixth,
Eighth, and Fourteenth Amendments. Third, he asserts that the
Georgia Supreme Court unreasonably applied Strickland in deny-
ing his claim that his trial counsel were ineffective for failing to ob-
ject to parts of the prosecutor’s sentencing phase closing argument.
Fourth, he argues that the Georgia Supreme Court unreasonably
applied clearly established federal law in concluding that the state
trial court’s admission of evidence that he burglarized Coretta
Scott King, the widow of Dr. Martin Luther King, Jr., did not vio-
late his right to a reliable sentencing. And fifth, he contends that
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the Georgia Supreme Court unreasonably applied Simmons v.
South Carolina, 512 U.S. 154 (1994), in concluding that the state
trial court’s refusal to inform the jury about his eligibility for parole
did not violate his right to a reliable sentencing. After careful re-
view of the briefs and the record, and with the benefit of oral argu-
ment, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Murders
On August 28, 1988, Lula Bell McAfee, age eighty-six, was
found dead in her home in Atlanta. She was naked and lying face
down on her bed, with a pillow underneath her stomach that
pushed her pelvis up, exposing her vaginal and rectal areas. Blood
was pouring out of her mouth and her bra and a strip of cloth were
tangled around her neck. Her bathroom window was open and
the window screen had been removed and left lying on the ground.
Her bedroom was “completely ransacked” and a briefcase, car
keys, and money were missing. Ms. McAfee’s autopsy established
that she had been strangled to death. The presence of lubricant on
her vaginal and rectal areas suggested that she had been sexually
assaulted. Swabs from her breasts revealed the presence of saliva,
and vaginal and rectal swabs revealed the presence of sperm. Ms.
McAfee had known Pace “since he was a baby.”
On September 10, 1988, Mattie Mae McClendon, age sev-
enty-eight, was found dead in her home in the Vine City area of
Atlanta. She was lying in her bed with bloodstained sheets pulled
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over her body. Her bathroom window was open, the window
screen had been torn apart from the outside, and a tree limb just
outside the window was broken. Ms. McClendon’s autopsy
showed that she had been strangled to death and suffered “a very
large” vaginal laceration “with a large amount of hemorrhage com-
ing from it.” Rectal swabs taken from her body revealed the pres-
ence of sperm.
On February 4, 1989, Johnnie Mae Martin, age seventy-nine,
was found dead in her home in the Vine City area of Atlanta. She
was lying on her bed with a pillow over her head. Her bloodstained
nightgown was pulled up around her breasts, a shoelace was
wrapped around her neck, and the rest of her body was naked with
her legs spread open. A side window was open, the window screen
had been pushed back, and a ladder was just under the window on
the outside of the house. The house was “ransacked.” Ms. Martin’s
autopsy established that she had been strangled to death and suf-
fered a vaginal laceration and other injuries in her vaginal area.
Rectal swabs taken from her body revealed the presence of sperm.
On March 4, 1989, Annie Kate Britt, age forty-two, was
found dead in her home in Atlanta. Ms. Britt was lying naked in
her bed with a sock knotted tightly around her neck. Someone had
pried open a back window, the window screen was lying on the
ground, and a pipe underneath the outside of the window was
loose and detached from the wall. The house was “ransacked.”
Ms. Britt’s autopsy established that she had been strangled to death,
and a broken fingernail, bruises, and scrapes on her body were
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“consistent with her fighting with her attacker at the time that she
was strangled.” Her autopsy revealed multiple tears in her anus
that appeared as if they had occurred after she died, and rectal and
vaginal swabs revealed the presence of sperm.
More than three years later, on September 24, 1992, Sarah
Grogan, age sixty-nine, woke up to find that someone had broken
into her home in the Vine City area of Atlanta. Ms. Grogan left her
bedroom and found a man in her kitchen. As the man chased her
back to her bedroom, Ms. Grogan slammed the bedroom door in
the man’s face. Ms. Grogan got her gun and shot through the door,
but the man wasn’t there when she opened it to see if her shot had
hit him. As she left the bedroom, the man “took a shot at [her],”
but she “r[a]n to the front door and got out.” Police discovered
that the burglar had broken into Ms. Grogan’s house through a rear
kitchen window where the screen had been ripped from its frame.
Investigators took fingerprints from the rear window and from
other items that the man touched.
Less than a week later, on September 30, 1992, Susie Sublett,
an elderly woman living in the Vine City area of Atlanta, woke up
to find a man in her bedroom searching through her purse. The
man had broken into her home through a side window. Ms. Sub-
lett confronted the man, and he threatened to “blow [her] brains
out.” Ms. Sublett fought the man and chased him out of the win-
dow he had broken in through. Ms. Sublett’s phone lines had been
cut and so had her neighbors’, so she called the police from another
neighbor’s house. When the police arrived, they found that the
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side window’s screen had been removed and that there was a milk
crate on the ground below the window. Police took fingerprints
from the window screen and from other items that the man
touched.
The fingerprints taken from Ms. Grogan’s and Ms. Sublett’s
homes matched Pace’s, which were on file from an earlier convic-
tion. Police obtained a warrant and arrested Pace. Pace agreed to
give the police samples of his hair and blood. Pace’s pubic hair
matched hair samples taken from Ms. Martin’s and Ms. Britt’s mur-
ders. And the sperm found in each of the murder victims matched
Pace’s DNA.
A grand jury in Fulton County, Georgia, charged Pace with
four counts of malice murder, four counts of felony murder, four
counts of rape, and two counts of aggravated sodomy. The state
sought a death sentence for each of the four malice murders. Un-
der Georgia’s death-sentencing statute, the case was set for a bifur-
cated jury trial with a guilt phase and a sentencing phase. See
O.C.G.A. § 17-10-2(c). The jury had to find at least one statutory
aggravating circumstance at the sentencing phase to recommend a
death sentence. See id. § 17-10-30(c). At the sentencing phase, Pace
had the right to present any mitigation evidence weighing against
the imposition of the death penalty. See, e.g., Crowder v. State,
491 S.E.2d 323, 325 (Ga. 1997) (“Under Georgia’s statutory death-
penalty statute, any evidence that relates to the defendant’s charac-
ter, prior record, or the circumstances of the offense is admissible
as mitigating evidence.”).
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Trial Counsel’s Investigation of Mitigation Evidence
Three attorneys were appointed to represent Pace. Two of
the attorneys, Michael Mears and Nancy Mau, were from the Of-
fice of the Multi-County Public Defender, a law office dedicated to
handling death penalty trials statewide. The third, Bruce Harvey,
was a criminal defense attorney in private practice. Mr. Mears
served as lead counsel. Ms. Mau “assumed responsibility for the
majority of the actual workup of the case” and Mr. Harvey’s role
“was solely to handle scientific evidence in the guilt [and] inno-
cence phase, namely the DNA evidence.”
Trial counsel’s “focus . . . all along was reasonable doubt of
. . . Pace’s guilt.” They sought to establish reasonable doubt at the
guilt phase by highlighting an “overzealous prosecution” and
showing that the procedures used to match Pace’s DNA to the
DNA collected from the murder victims were unreliable. If Pace
was convicted, trial counsel’s strategy for the sentencing phase was
to establish “residual doubt” 1 and to show that Pace’s family was
1
“A residual doubt theory during mitigation essentially asks the jury to con-
sider as mitigating any lingering doubt that they might still have as to the de-
fendant’s guilt.” Moore v. Mitchell, 708 F.3d 760, 785 n.12 (6th Cir. 2013) (ap-
plying Ohio law); accord Wade v. State, 401 S.E.2d 701, 705 n.3 (Ga. 1991)
(Hunt, J., concurring) (“[A] residual doubt [is] a doubt leftover from the find-
ing of guilt.”). “It operates in the space between certainty ‘beyond a reasona-
ble doubt’ and ‘absolute certainty.’” Moore, 708 F.3d at 785 n.12; see Stewart
v. Dugger, 877 F.2d 851, 856 (11th Cir. 1989) (describing trial counsel’s
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“pleading for mercy.” In preparation for their mitigation defense,
Pace’s trial counsel interviewed Pace, his family, a former girl-
friend, friends, and teachers, gathered Pace’s background records,
hired a “mitigation specialist and investigator” to assist with their
investigation, and retained a mental health expert to examine Pace.
Trial counsel interviewed witnesses and gathered Pace’s records
Ms. Mau was assigned responsibility for the sentencing
phase of Pace’s trial. To prepare a mitigation strategy, Ms. Mau
first spoke with Pace’s mother and several of his siblings. Pace’s
mother mentioned that Pace had a “particularly bad” head injury
as a child and that she thought it might have affected his perfor-
mance at school. The injury required medical treatment and, after
the injury, Pace “had headaches and [was] vomiting” for a “long
time.” In response, Ms. Mau explained to Pace’s mother that it
would be important to know if Pace had “learning problems” be-
cause “then the [s]tate might not be able to even have a [death pen-
alty] trial.” Pace’s mother “seemed to understand,” “talked more
liberally” about Pace’s head injuries, and “even ventured to say that
[Pace] ha[d] always been a ‘slow learner.’”
Ms. Mau also reached out to some of Pace’s siblings. One
sister, Lisa, said that Pace was “not a drug user.” Ms. Mau believed
that Lisa was “close enough to [Pace] to know whether he was
“lingering doubt” defense as creating “some seed of doubt, even if insufficient
to constitute reasonable doubt”).
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using drugs or not when he was arrested” for the murders. Lisa
also told Ms. Mau that there were several character witnesses from
Pace’s neighborhood who would testify that he cared for them and
wouldn’t be capable of committing the crimes he was charged
with.
At the same time, Ms. Mau sought Pace’s medical and school
records. Despite repeated attempts, trial counsel weren’t able to
get Pace’s childhood medical records because they hadn’t been
kept by the hospital. Trial counsel did, however, get Pace’s school
records, which were “disastrous.” The records showed that Pace
“did extremely poorly in school, was absent far more than he at-
tended, repeated third grade three times and was socially promoted
several times, and that he was reading on a first grade level at the
age of [twelve].” Pace’s family wasn’t helpful in explaining his
problems at school, “although they did relate that he was clumsy,
fell down a lot, suffered terrible headaches, and had suffered at least
one very severe head injury as a child.” They dismissed Pace’s poor
performance at school by saying that he “had headaches or didn’t
want to go to school.”
Ms. Mau interviewed Pace to learn about his upbringing.
Pace said that his parents separated when he was a teenager, but he
didn’t understand why because “he never knew anything was
wrong” and they “never argued in front of” him or his siblings.
Pace had eight siblings, and his father had “lots of children of his
own.” There were “no hard feelings” between Pace’s family and
his father’s “new wife and family.” Pace described growing up in a
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big family: “fun, exciting, family life, BBQ’s, always someone
around.” He said his father was a “good” man and that both of his
parents were strict and punished him when he misbehaved. Pace
said that he had “lots of close friends” and knew “mostly everyone
in his neighborhood.”
Pace confirmed that he dropped out of school in the seventh
grade and said it was because the schools where he grew up
“weren’t that good” and “didn’t really inspire the children to
learn.” The bad schools, “coupled with his home life and bad
neighborhood, made attendance in elementary school or any
school seem less significant than having a job earning money.”
Pace added that he might have been in a “special class as a kid” and
that a teacher said he was “slow” or a “remedial reader.” Pace told
Ms. Mau that he had started writing poetry in jail, but Ms. Mau was
skeptical whether Pace could even read.
Pace said that he “got in with the wrong crowd” after he left
school and that he started selling alcohol and drugs. He “got in
trouble for the first time” when he was sixteen or seventeen years
old for trespassing and was put on probation. He had a few odd
jobs and moved around a lot, but when he wasn’t working, he
“hung around the streets” and sold drugs—“mostly cocaine and
marijuana”—to support himself. Pace admitted he snorted cocaine
but denied ever using or selling crack. He also said that he almost
lost his life over a bad drug deal where he was “struck in the head
with a pipe and left for dead.” Pace mentioned that he had been
incarcerated for other convictions as well.
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Pace also recounted the same head injury described by his
mother, explaining that it happened when he jumped out of a
parked car as a young child. And he said that he sustained other
head injuries, too. Pace noted that he sometimes suffered from
headaches and dizziness and that, although his eyesight was gener-
ally okay, it “used to sort of ‘black-out’ and then come back on.”
Along with Ms. Mau’s interview with him, Pace wrote trial
counsel a letter summarizing his life, noting that it consisted of “ac-
cidents, pain, [and] mistakes” but also “joy, happ[i]ness, and love.”
He wrote that he used to have “a lot of accidents” and referenced
the same head injury he mentioned to Ms. Mau. He also recalled
an incident where he was playing on a swing and knocked himself
unconscious for three days but wasn’t hospitalized. After that,
Pace had “nothing but constant bad headaches on the left side of
[his] head” and used to “throw-up a lot.” He “couldn’t stand loud
noises,” and the only thing he could do to stop the pain was go
somewhere quiet and sleep.
Pace also said that he “wasn’t a stupid child.” He noted his
resourcefulness with electronics, explaining that at age fourteen he
fixed a broken television his mother had planned to throw away.
And he said that he dropped out of school because he “got real frus-
trated with the situation and quit.” Mr. Mears wrote back to Pace
and asked him to share as much information as he could about the
two accidents he described where he injured his head and to make
a list of names and addresses of potential character witnesses.
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Trial counsel hired an investigator to assist in their investigation
Trial counsel hired a “mitigation specialist and investigator,”
Pam Leonard, to assist with Pace’s case. Investigator Leonard met
with Pace “to begin work on [his] social history.” She noted that
Pace was “pleasant, cooperative[,] and attentive throughout [their]
discussion.”
Pace told Investigator Leonard that his family was “con-
stantly moving around” when he was young, but he didn’t know
why. Pace said that he was “always having accidents” as a child
and “constantly hit his head.” Pace also said he never felt sad for a
prolonged period until he was twenty-seven years old and broke
up with his girlfriend, Trina Todd. At that time, he was “so de-
pressed that he even considered suicide.”
Pace detailed his history of alcohol and drug use. He said he
first tried alcohol when he was five or six years old and didn’t try it
again until he was fourteen. By the time he was sixteen, he was
“drinking beer like water” and “needed a perpetual buzz” to “keep
away the pressures.” When he was twenty-seven, he was drinking
“a couple of six packs of beer” every weekend and was “only trying
to get relaxed and didn’t drink to get drunk.” He denied ever being
dependent on alcohol and said he could have stopped whenever he
wanted.
Pace first used drugs when he was fifteen or sixteen years
old. At the time, he “smoked a lot of weed” every day. He even-
tually “cut back to being a weekend user after a couple of years of
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everyday use of drugs and alcohol.” He started selling and using
cocaine when he was seventeen or eighteen. Pace said he used co-
caine “to push the pain away,” but he stopped using it after it nearly
gave him a heart attack. He kept smoking marijuana, though, and
by the time he was twenty-seven he was “smoking a nickel bag . . .
each weekend.” He explained that selling drugs was “the way of
life” in the neighborhoods where he grew up, and he said that
“[t]hings were not available to [him] and there was no way out.”
Investigator Leonard also interviewed three of Pace’s for-
mer teachers, only one of whom—Doris Grissom—claimed to re-
member Pace. Ms. Grissom thought that Pace “probably was not
evaluated for special ed[ucation] due to his extreme absenteeism
combined with the long wait for evaluations.” She said that Pace
“came from a family where the children fended for themselves[,]
and he often did not have clean clothes or sufficient food.” Accord-
ing to Ms. Grissom, Pace’s mother never came to school when
asked, and “there was no one to enforce the attendance rules.” Ms.
Grissom also knew that Pace lived in a “terrible place” known as
“little Vietnam” where “[u]nattended small children roamed
around at all hours while older kids sniffed glue and smoked pot in
plain view.” Investigator Leonard wasn’t convinced that Ms. Gris-
som remembered Pace and instead suspected that Ms. Grissom re-
membered “a composite of the many kids like him at her school,
which ha[d] a high population of poor kids.” Pace was never as-
signed to Ms. Grissom’s class, and she had taught at the school for
thirty-two years.
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Ms. Mau spoke with Trina Todd, Pace’s former girlfriend.
Ms. Todd said she dated Pace “during the time some of the[] kill-
ings occurred” and that “she never saw any indication that any-
thing was wrong.” Ms. Todd had known Pace and his family for a
long time and thought that the crimes Pace was charged with were
“out of character for him.” She said Pace “was not capable” of com-
mitting the crimes he had been charged with.
Investigator Leonard also interviewed Ms. Todd. Ms. Todd
told Investigator Leonard that she had known Pace’s family for
about ten years and first started dating Pace in 1982, during her
senior year of high school. They broke up and didn’t start dating
again until the early 1990s. Ms. Todd “emphatically” said that
Pace’s charges “didn’t click” with her because Pace was such a
“quiet” person and “was particularly respectful toward the el-
derly.”
Ms. Todd also said that Pace had an “overwhelming need
for her” while they were dating because he didn’t have a car or
“stable residence,” had a criminal record, and was “barely literate.”
Ms. Todd was never afraid of Pace because he didn’t hit her, but he
kept calling her even after they broke up, so she filed harassment
charges against him “just to scare him a little.” Ms. Todd was
aware of Pace’s drug use, but he never used drugs in front of her
or “let it get out of control while they were together.”
Ms. Mau and Investigator Leonard interviewed several of
Pace’s family members and family friends. Before the individual
interviews, Ms. Mau, Investigator Leonard, and Mr. Mears met as
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a group with Pace’s mother, his sister Lisa, his brother Garry, and
Garry’s wife, Penny. During the meeting, trial counsel “described
the scope and purpose of mitigation evidence in a bifurcated trial.”
In response to the family’s questions about the state’s charges
against Pace, Ms. Mau “point[ed] out the problems in the [s]tate’s
case” but “emphasized that [Pace] [was] in a lot of trouble” and so
they “need[ed] to plan for a sentencing phase.” Pace’s family mem-
bers seemed “more interested in proving [Pace’s] innocence” but
“listened respectfully” and “seemed to understand the benefit of
mitigation.” Pace’s mother provided trial counsel with the names
and contact information for each of Pace’s siblings and “several
people who kn[e]w [Pace] and the Pace family.”
After the group meeting, Ms. Mau and Investigator Leonard
began their individual interviews. Pace’s brother Darrell said he
knew Pace “was doing some drugs” and Darrell had tried to per-
suade Pace to stop smoking marijuana. Darrell described Pace as
“easy going” and said that Pace would “joke[] all the time.” He
explained that Pace’s “nieces and nephews loved him and he got
along with everybody.” Darrell said, “There’s no way [Pace] could
have done it.” Darrell also “credit[ed] [Pace] with saving his life”
because Pace “once pulled [him] out of a swimming pool because
he was drowning.”
Pace’s brother Garry—a recently retired Army sergeant—
explained that “[j]ust because you’re raised in that neighborhood
doesn’t mean you’ll be a hoodlum.” Garry knew that Pace “was
involved in drugs” and “repeatedly warned [him] about the cycle
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of lawbreaking that goes with drug addiction.” Both Garry and his
wife Penny “rejected the idea of [Pace] being slow.” They noted
“his teaching himself to play the guitar by ear, teaching himself to
drive[,] and his ability to dismantle mechanical objects as examples
of above average traits.” They couldn’t explain Pace’s poor perfor-
mance at school. To them, “the only unusual thing about [Pace]
[was] his tendency to have severe headaches.” Garry had “never
seen any abnormal behavior in [Pace]” and said that Pace was “not
capable of committing these murders.” Penny thought that Pace
“might have been a thief” but insisted that he was “not a violent
person” and “wouldn’t harm an old woman.” Even after Ms. Mau
told them about the state’s evidence against Pace, including the
matching fingerprints and DNA, Garry and Penny “steadfastly
maintained their disbelief that [Pace] committed four murders.”
Pace’s brother Gregory—an Army veteran like Garry—said
he lived with Pace in the early 1990s and that Pace “was using drugs
rather carelessly.” But Gregory maintained that Pace “remained
even tempered,” and he “seriously and unequivocally” said that
Pace was “not capable of these murders.” After interviewing
Garry, Penny, and Gregory, Investigator Leonard thought that
they would “be very good mitigation witnesses” because “[t]hey
[were] hard working, attractive[,] and articulate people who under-
stand the theatrical qualities of a trial and [she] believe[d] they
w[ould] hold steadfast to their proclamation that [Pace was] not
capable of committing these murders.”
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Pace’s sister Jennifer said that Pace’s drug problem got
“pretty bad” in 1992 when, despite being “characteristically well-
groomed,” Pace started appearing “unkempt.” And Pace’s sister
Patty said that she thought Pace “got into drugs and petty crime
because he couldn’t read.” But she thought that Pace “was doing
quite well” at the time he was arrested. Patty also mentioned that
Pace’s parents “drank a little and argued often,” sometimes getting
into physical fights. Patty even had to intervene in one of her par-
ents’ fights by threatening to hit them with a pressure cooker lid.
She also noted that Pace’s father later went to prison for kidnapping
his common-law wife. Patty was “adamant that [Pace] could not
have committed the crimes . . . because he respected older people
and often ran errands for them and watched out for them.”
Pace’s mother said that she ended her marriage with Pace’s
father because he was spending money on other women and let
their house get repossessed. She tried not to fight in front of her
children while they were together, but it was hard not to. Their
fights occasionally got physical, and one time she had to get the
police involved. After they split up, Pace’s mother relied on public
assistance for several years.
Pace’s mother also described the head injury Pace suffered
as a young child, noting that his skin didn’t break and that she
treated his head with rubbing alcohol. She started to worry about
a week after the injury “because [Pace] couldn’t stand for anybody
to shake him,” so she took him to the hospital where he received
medical treatment. The hospital “lanced [his injury] to get all th[e]
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dried blood out and packed it with gauze so it could drain.” Pace’s
mother was concerned about “long term problems” he may have
suffered from the accident.
Mary Ann Booker, a longtime family friend, said that she
had known Pace’s mother since the 1970s. Ms. Booker said that
“[t]he Pace family stuck together” and that Pace was “one of them
likeable little guys.” “[S]he was totally shocked to learn” that Pace
had been arrested for the murders.
Ida Turner, another longtime family friend, said that she
“watched [Pace] grow up and [she’d] never known him to be vio-
lent.” Ms. Turner said Pace was “gentle, quiet, mannerable[,] and
respectful.” Ms. Turner “believe[d] they ha[d] the wrong man.”
Together with the interviews, Ms. Mau and Investigator
Leonard sought Pace’s and his parents’ background records. They
tried to get Pace’s and his parents’ birth certificates, medical rec-
ords, school records, social security records, employment records,
and criminal and civil court records. Trial counsel compiled the
information from the interviews and the background records they
obtained into a detailed “social history chronology” of Pace’s fam-
ily dating to 1875.
Trial counsel retained a mental health expert to examine Pace
Trial counsel also arranged for Pace to be evaluated by Dr.
Dennis Herendeen, a clinical psychologist. The purpose of the
evaluation was to screen for “mental retardation” and “organic
brain damage.” Investigator Leonard met with Pace twice to
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prepare him for the evaluation and to explain what was happening.
Investigator Leonard also sent Dr. Herendeen a set of memoranda
she had prepared while interviewing Pace and his family and the
social history chronology that trial counsel had prepared. Investi-
gator Leonard told Dr. Herendeen about Pace’s “tendency to fall
and hit his head,” his “significant head injury around age six,” his
“poor school performance . . . and low reading level,” and his “se-
vere persistent headaches.”
Dr. Herendeen met with Investigator Leonard at the jail to
evaluate Pace. While they waited for Pace to arrive, Investigator
Leonard “talk[ed] at length with [Dr. Herendeen] about the evils”
of the Minnesota Multiphasic Personality Inventory (MMPI), a psy-
chological test common in forensic settings. Investigator Leonard
explained that trial counsel considered the MMPI to be “a sensa-
tionalizing blunt instrument of the state” that could be used against
Pace. Investigator Leonard “d[idn’t] expect [Pace] to do well on
any personality test” and thought it “ma[de] little sense . . . to ad-
minister a psychological test” that they’d have to “rebut in an at-
tempt to rehabilitate our client, who is usually charged with being
a malingering sociopath.” So she “press[ed Dr. Herendeen] to take
a measured approach to psychological testing by doing some initial
screening [and] then looking for correlates in the literature . . . for
guidance on what additional tests to administer.” Dr. Herendeen
“agreed fully with th[at] approach.”
To screen for mental disability, Dr. Herendeen administered
a “Shipley Institute of Living Scale.” Pace’s estimated IQ from the
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20 Opinion of the Court 16-10868
Shipley test was 78, which Dr. Herendeen didn’t consider to be
“promising” for a mental disability defense. To screen for aca-
demic achievement, Dr. Herendeen administered the reading sec-
tion of the “Wide Range Achievement Test, Third Revision.” That
test showed that Pace read at approximately a fifth grade level,
which was consistent with his IQ score.
Dr. Herendeen also administered the “Personality Assess-
ment Inventory,” which was a personality scale similar to the
MMPI. The test covered a variety of mental health issues including
paranoia, mania, anxiety-related disorders, schizophrenia, and drug
problems. Pace “had significant elevation on the paranoia scale,
and was markedly elevated on the mania scale, notably in feelings
of grandiosity which could reach the level of delusional belief.” His
schizophrenia scale was also “somewhat elevated.” The overall re-
sults of the Personality Assessment Inventory suggested to Dr.
Herendeen that he should rule out a diagnosis of “organicity” or
“bipolar disorder.”
Finally, Dr. Herendeen reviewed a “Neuropsychological
Symptoms Checklist” with Pace and administered the “Trail Mak-
ing Test” to him. Pace’s responses to the checklist suggested that
he “heard unusual sounds,” experienced periods where he forgot
where he was, and had problems communicating. Pace “per-
formed extremely poorly on [the Trail Making Test], clearly indi-
cating organic impairment and frontal lobe damage.”
Dr. Herendeen told Investigator Leonard that his evaluation
“showed . . . Pace to have borderline intelligence and organic brain
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16-10868 Opinion of the Court 21
damage.” They discussed “which full scale test should be adminis-
tered to follow up on the mental retardation issue,” and Dr. Heren-
deen also told Investigator Leonard that “the results of the other
testing indicated further evaluation should be pursued.” But trial
counsel decided not to pursue further testing or have Dr. Heren-
deen testify at trial. According to Mr. Mears, Dr. Herendeen’s eval-
uation “did not turn up anything to change our approach.”
The Trial
Pace’s trial took place from January to March 1996. After
the guilt phase of the trial, the jury convicted Pace for the four mur-
ders. The trial then moved to the sentencing phase, which took
place over three days.
The state’s presentation of aggravating evidence
During the sentencing phase, the state introduced evidence
of other burglaries Pace had committed, including the 1990 bur-
glary of Coretta Scott King’s home. A detective with the Atlanta
Police Department who investigated the burglary of Mrs. King’s
home testified that Pace’s fingerprints matched fingerprints “found
on the window ledge on the inside of the house” and that she found
items that had been stolen from Mrs. King’s home in Pace’s apart-
ment. And a technician with the Atlanta Police Department testi-
fied that he determined that the fingerprints he took from Mrs.
King’s window ledge matched Pace’s.
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22 Opinion of the Court 16-10868
Trial counsel’s presentation of mitigation evidence
Pace’s trial counsel called eleven witnesses to plead for
mercy on his behalf and to establish residual doubt of his guilt.
Ms. Booker testified that she had known Pace’s family since
1978, when she became friends with his mother. Pace’s mother
raised her kids by herself, but Ms. Booker thought she was a “good
mother” who did the best she could. Pace was a young and “real
likeable” child when Ms. Booker met him. Ms. Booker described
Pace as “just like any other normal child,” “a good kid,” and an
“easy” and “caring” person who wouldn’t harm anyone. Ms.
Booker never saw Pace acting in a mean or disrespectful manner
to anyone. Pace treated his family “very well,” and they always
seemed to be “a big happy family.” Ms. Booker explained that her
grandson had problems with juvenile delinquency and that Pace
had “a real big impact” in motivating her grandson to stay in school
by telling him about life in jail. Ms. Booker asked the jury to have
mercy on Pace and said that she thought he was innocent. On
cross-examination, Ms. Booker conceded that Pace was “just a
child” when she “knew him growing up” and that she didn’t know
him as an adult.
Ms. Turner testified that Pace’s mother was her best friend.
Ms. Turner had known Pace since he was about three years old and
continued to see him as he grew up and became a teenager. Pace
was “always quiet, kind, very respectful,” and had a “very loving”
nature. Ms. Turner never saw Pace act disrespectfully toward
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16-10868 Opinion of the Court 23
anyone. He had a “very loving” home, and Ms. Turner never saw
Pace’s mother mistreat him. Ms. Turner asked the jury to “have
mercy” on Pace because she believed he was innocent. She felt that
Pace was the type of person who deserved to live rather than be
executed. On cross-examination, Ms. Turner conceded that she
“just kn[e]w [Pace] as a child and as a teenager” and did not know
Pace as an adult.
Pace’s brother Garry testified that he and Pace lived in hous-
ing projects, moved around a lot, and had a low income. But he
said they weren’t “the average run-of-the-mill family from where
[they] grew up.” They had a “very close-knit family” and didn’t
have any fights. Garry said that Pace was “an easy-going, quiet per-
son” who never got into trouble or had arguments. He was “even-
tempered” and didn’t hate anyone. Garry testified that their
mother did her best to discipline her eight children and to keep
them out of trouble. Garry said that he thought Pace was innocent
because he knew “the kind of person that” Pace was. He asked the
jury to “take it in their hearts” and to have mercy on Pace.
Pace’s brother Darrell testified that Pace was always a quiet
person, didn’t get into too much trouble, and never got into fights.
Darrell told the jury about how, when Pace was fifteen or sixteen
years old, he saved Darrell from drowning by pulling him out of a
pool and giving him CPR. Darrell said that he “d[id]n’t think [Pace]
did it” and asked the jury to “have compassion” for Pace’s mother
and the rest of his family by sparing Pace’s life.
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24 Opinion of the Court 16-10868
Pace’s sister Jennifer testified that she could always count on
Pace to take care of her when she couldn’t care for herself. Jennifer
also said that she knew Pace had a “drug problem” and that she
encouraged him to “beat it” by avoiding the people who were neg-
atively influencing him. Jennifer asked the jury “to have mercy for
[her] brother” and said that if the jury were to sentence him to
death it would “would leave . . . a deep scar” in her family. She said
that she “d[id]n’t think [her] brother did it.”
Pace’s brother Gregory testified that he never saw Pace treat
anyone disrespectfully and that Pace “g[a]ve respect to his elders.”
Pace often helped their sick aunt and elderly neighbors with er-
rands. Pace even sat with an elderly neighbor who wanted com-
pany while taking a nap. Gregory said that he knew Pace was “the
type of person that cares for elderly people.” Gregory asked the
jury to have mercy on Pace. Gregory said that if Pace “ha[d]n’t
admit[ted] to it, he ha[d]n’t done it.”
Ms. Todd testified that she and Pace had been “boyfriend
and girlfriend” and also “best friends” but explained that they were
now “separated as friends.” She described Pace as a “very quiet,”
“very kind, very supportive, very loving,” and polite person who
would give up his seat for someone else on the bus. Ms. Todd also
said that Pace always encouraged her to continue her education
even though he dropped out of school early and didn’t read well.
Pace was never disrespectful, violent, or hateful toward her. Ms.
Todd asked the jury to have mercy on Pace because of how painful
it would be for her and Pace’s family to lose him.
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Joe Beasley testified that he was the human resource direc-
tor for the Antioch Baptist Church North. The church had a con-
gregation of about 7,000 people, a third of whom came from the
Vine City area where most of the murders took place. Mr. Beasley
said that the members of his congregation and local community
opposed the death penalty because it was “an African American
community, poor community, and we know how the death pen-
alty has been used.” He also said that the death penalty “runs coun-
ter to Christian values.” For these reasons, Mr. Beasley thought
that “most people” in the Vine City community were “opposed” to
executing Pace.
Pace’s older sister Gwendolyn said that Pace had always
been a “real important part of [her] life.” Gwendolyn shared pic-
tures of Pace’s family with the jury, including pictures of Pace with
her children. She asked the jury to have mercy on Pace because he
was almost like a son to her.
Pace’s sister-in-law Penny testified that her uncle had been
shot in the head during a robbery and that her family opposed sen-
tencing her uncle’s murderer to death. Penny’s family thought that
a death sentence would be an “easy way out” for her uncle’s mur-
derer and that it wouldn’t bring her uncle back. Penny asked the
jury to have mercy on Pace, noting that if he was found innocent
after his execution then there would be no way to bring him back.
Finally, Pace’s mother “beg[ged]” the jury to have mercy on
Pace so that she could “at least . . . talk to him sometimes.” She
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26 Opinion of the Court 16-10868
said that if he were to be sentenced to death, “part of [her would]
be gone.”
The prosecutor’s closing argument
Before closing arguments, Pace’s trial counsel objected to a
cartoon that the prosecutor intended to display to the jury during
its closing argument. The cartoon depicted a jury returning a ver-
dict of “not guilty by virtue of insanity, ethnic rage, sexual abuse
and you name it.” Pace’s trial counsel argued that the cartoon was
inappropriate because it “interject[ed]” racial issues and “social sta-
tus” into the case, “talk[ed] about insanity when that is not an issue
in this case,” and because “allow[ing] a cartoon to be used as a fac-
tor” during the sentencing phase of a death penalty trial was “inap-
propriate, totally.” The prosecutor responded that he intended to
use the cartoon to rebut Pace’s mitigation defense that he was
“born in the ghetto or the poor side of town and growing up under
those conditions” and to rebut Mr. Beasley’s testimony about “ra-
cial discrimination in terms of seeking the death penalty.” The
state trial court overruled the objection.
Seven parts of the prosecutor’s closing argument are rele-
vant to Pace’s appeal. First, the prosecutor compared Pace to infa-
mous serial killers Jeffrey Dahmer, Ted Bundy, and John Wayne
Gacy. The prosecutor said that, like Pace’s family, those serial kill-
ers’ families would have also “come to court and t[old] you good
things about [them] when [they] were growing up.” The prosecu-
tor emphasized that the juries in those cases still “gave [them]
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16-10868 Opinion of the Court 27
justice for what [they] did.” Pace’s trial counsel immediately
moved for a mistrial or a curative instruction. The state trial court
denied the motion for a mistrial and instead instructed the jury that
they “should not concern [them]selves with the verdicts in those
other cases” because “[the prosecutor’s] point was about the family
of those particular individuals and how we might imagine they
would come to court and testify.”
Second, the prosecutor showed the jury the cartoon. The
prosecutor read what the cartoon said about “find[ing] the defend-
ant not guilty by virtue of insanity, ethnic rage, sexual abuse, and
you name it,” and argued “that’s basically what [Pace was] trying
to tell you when he talk[ed] about his upbringing[;] [t]hat it[ was]
everybody else’s fault that he turned into a serial killer but his
own.”
Third, the prosecutor invited the jury to “come with [him]
to th[e] scene of the crime,” “imagine that night” and to “imagine
what Ms. McAfee thought and felt” as she was “being strangled be-
fore [she] los[t] consciousness.” The prosecutor asked the jury to
“come with [him] again” to the scene of Ms. McClendon’s murder
and to ask themselves “how would you feel in Ms. McClendon’s
situation . . . to wake up with some man standing up over you
choking the life out of you and pulling on your clothes.” And the
prosecutor asked the jury to “come with [him]” to the scenes of
Ms. Martin’s and Ms. Britt’s murders and to ask themselves “what
do you think went through [Ms. Martin’s] mind as she was brutally
awakened with someone choking the life out of her?” and to
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28 Opinion of the Court 16-10868
“imagine [Ms. Britt’s] frame of mind as she fought for her life for
the few minutes that she was trying to preserve her life.”
Fourth, the prosecutor asked the jury if “sending [Pace] to
prison would be punishment” when he would “g[et] free room and
board, color TV.” The prosecutor asserted: “[i]f anal sodomy is
your thing, prison isn’t a bad place to be.”
Fifth, the prosecutor told the jury that they were “the con-
science of the community” because they “decide[d] what standards
of right and wrong [were] allowed in this community.” The pros-
ecutor said that the jury needed to “send a message” by sentencing
Pace to death because the jury would otherwise be “saying that
these victims’ lives didn’t matter.” Pace’s trial counsel moved for
a mistrial based on this portion of the prosecutor’s closing argu-
ment, but the state trial court denied the motion.
Sixth, the prosecutor noted Pace’s “remorseless, soulless”
demeanor in the courtroom and “ask[ed] [the jury] to think back to
. . . [w]hen Jesus was put on the cross.” The prosecutor told the
jury that “there were two thieves with [Jesus]”: one of the thieves
“said to Jesus, in essence, Lord, remember me when you come into
your kingdom,” while the other thief “never repented.” The pros-
ecutor said that “Jesus forgave” the thief that repented but that the
unrepentant thief “wasn’t taken into Jesus’ kingdom” and that the
prosecutor “d[id]n’t know where [that thief] went.” The prosecu-
tor said that “[Pace], too, ha[d] never repented” and “hadn’t said
one time I’m sorry.” Pace’s trial counsel objected and moved for a
mistrial because the prosecutor had “impermissibl[y] comment[ed]
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16-10868 Opinion of the Court 29
on [Pace’s] right to remain silent.” The state trial court “th[ought]
it[ was] very close to the line, but . . . d[id]n’t find that it” crossed
the line and denied the motion. The state trial court said it would
give curative instructions, but neither Pace’s trial counsel nor the
state trial court could “think of any” to give.
Finally, the prosecutor took out a “Georgia law book,”
which he told the jury “ha[d] the punishments and the crimes in
it.” The prosecutor argued that, “[i]f based on the evidence in this
case you don’t return a death penalty verdict, you have snatched
that section of the book about the death penalty out.” Pace’s trial
counsel objected because “[t]he law provide[d] for very specific rea-
sons how and why the death penalty should or should not be im-
posed” and “the court will charge the jury on that.” Before the trial
court could rule on the objection, the prosecutor told the jury that
his “point to [them was] simply this[:] [i]f your verdict is anything
other than death, what we need to do is take this book” and simu-
lated tearing out a section from the book.
Mr. Mears’s closing argument
In his closing argument, Mr. Mears “begg[ed] for the life of
Lyndon Fitzgerald Pace.” Mr. Mears “remind[ed] [the jury], as best
[he] c[ould], that whatever [they] d[id] to [Pace], whatever [they]
d[id] to this man [was] going to stay with [them] for the rest of
[their] li[ves].” Mr. Mears said that he was “arguing for mercy in
this case” and for the jury “to inspect [their] own feelings before
[they] ma[d]e this decision.”
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30 Opinion of the Court 16-10868
Mr. Mears explained that “we didn’t come in here and say
[Pace was] insane” or “try to insult your intelligence by putting up
witnesses to say that [Pace] had a deprived family.” Instead, he ar-
gued, “[w]e did just the opposite” because “it would have been hyp-
ocritical for us to argue as we did and strongly . . . that the evidence
didn’t prove him . . . guilty” and then “come and say, well, you
found him [guilty] . . . but he is crazy anyway” or that the jury
shouldn’t “sentence him to death because he was poor.” What
Pace’s trial counsel had tried to do, Mr. Mears explained, was “give
you the truth about as best we could as to who [Pace] was and what
his family was like.” And Mr. Mears said he, Mr. Harvey, and Ms.
Mau did not “expect” a death sentence and reiterated that he was
“telling you, [he] d[idn]’t expect it[; he was] not expecting it of
you.”
Mr. Mears also addressed the testimony the jury had heard
from Pace’s family members, asking the jury to
understand family members when they come and
they testify, and they say things, and they tell you that
they don’t agree with your verdict. Please don’t hold
that against them. That’s a natural human thing.
They were not arguing with you.
How many of you have ever known someone who
has been convicted of a crime or someone has been
accused and you just say I just can’t believe that be-
cause you know them? You love them. Please don’t
think the family members were thinking less of you
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16-10868 Opinion of the Court 31
or arguing with you. They were simply expressing
their sadness in the only way they knew how.
The state trial court’s instructions to the jury and Pace’s death
sentences
Once the jury convicted Pace of the murders, Georgia law
allowed only two sentencing options: death or life with the possi-
bility of parole. See Pace v. State, 524 S.E.2d 490, 507 (Ga. 1999).
If the jury sentenced Pace to life imprisonment, Pace would’ve
served at least thirty years in prison before becoming parole eligi-
ble. See O.C.G.A. § 42-9-39(c). The state trial court denied Pace’s
pretrial motions to allow him “to question all potential jurors with
regard to their . . . knowledge . . . [of] parole issues” and “to present
evidence on the issue of his parole status.”
During its deliberations, the jury sent a note to the state trial
court that asked, “Is it possible for a life sentence to be given elim-
inating any possibility of parole?” The state trial court responded
in writing:
You shall not consider the question of parole. Your
deliberations must be limited to whether this defend-
ant shall be sentenced to death or whether he shall be
sentenced to life in prison. You should assume that
your sentence, whichever it may be, will be carried
out.
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32 Opinion of the Court 16-10868
Under our law, life imprisonment means that the de-
fendant will be sentenced to incarceration for the re-
mainder of his natural life.
The jury unanimously found nineteen statutory aggravating
circumstances 2 and recommended the death penalty for each of the
2
The aggravating circumstances were: (1) Pace murdered Ms. McAfee during
the commission of a capital felony (rape); (2) Pace murdered Ms. McAfee dur-
ing the commission of a burglary; (3) Pace murdered Ms. McAfee during the
commission of an aggravated battery; (4) the murder of Ms. McAfee was out-
rageously or wantonly vile, horrible, or inhuman, in that it involved torture,
depravity of mind, or an aggravated battery upon her; (5) the rape of Ms.
McAfee was outrageously or wantonly vile, horrible, or inhuman, in that it
involved torture, depravity of mind, or an aggravating battery upon her;
(6) Pace murdered Ms. McClendon during the commission of a capital felony
(rape); (7) Pace murdered Ms. McClendon during the commission of a bur-
glary; (8) Pace murdered Ms. McClendon during the commission of an aggra-
vated battery; (9) the murder of Ms. McClendon was outrageously or wan-
tonly vile, horrible, or inhuman, in that it involved torture, depravity of mind,
or an aggravated battery upon her; (10) the rape of Ms. McClendon was out-
rageously or wantonly vile, horrible, or inhuman, in that it involved torture,
depravity of mind, or an aggravating battery upon her; (11) Pace murdered
Ms. Martin during the commission of a capital felony (rape); (12) Pace mur-
dered Ms. Martin during the commission of a burglary; (13) Pace murdered
Ms. Martin during the commission of an aggravated battery; (14) the murder
of Ms. Martin was outrageously or wantonly vile, horrible, or inhuman, in that
it involved torture, depravity of mind, or an aggravated battery upon her;
(15) the rape of Ms. Martin was outrageously or wantonly vile, horrible, or
inhuman, in that it involved torture, depravity of mind, or an aggravating bat-
tery upon her; (16) Pace murdered Ms. Britt during the commission of a capital
felony (rape); (17) Pace murdered Ms. Britt during the commission of a bur-
glary; (18) the murder of Ms. Britt was outrageously or wantonly vile, horri-
ble, or inhuman, in that it involved torture, depravity of mind, or an
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16-10868 Opinion of the Court 33
four murders. The state trial court sentenced Pace to death con-
sistent with the jury’s recommendation.
Pace’s Direct Appeal
The Georgia Supreme Court affirmed Pace’s convictions
and death sentences on direct appeal. See Pace, 524 S.E.2d at 507.
Three of the issues Pace raised on direct appeal are relevant here.
First, Pace argued that the state trial court’s admission of evidence
of his prior burglary convictions, including his burglary of Coretta
Scott King, violated his Eighth Amendment right to a reliable sen-
tencing because the “convictions . . . were obtained in violation of
[his] rights” because the “pleas in the [other burglary] cases were
not knowingly and voluntarily entered.” Second, Pace contended
that the prosecutor’s sentencing phase closing argument “under-
mined the reliability of the jury’s decision at the sentencing phase.”
And third, Pace asserted that the state trial court violated his right
to reliable sentencing by “fail[ing] to allow accurate information to
go to the jury concerning [his] parole eligibility.”
The Georgia Supreme Court rejected Pace’s argument that
the state trial court erred in admitting evidence of his prior burglary
convictions. See id. at 505. The state trial court did not err, the
Georgia Supreme Court concluded, because “[t]he [s]tate pre-
sented reliable evidence about the[] offenses and there [was] no
aggravated battery upon her; and (19) the rape of Ms. Britt was outrageously
or wantonly vile, horrible, or inhuman, in that it involved torture, depravity
of mind, or an aggravating battery upon her.
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34 Opinion of the Court 16-10868
requirement that other crime evidence in the sentencing phase be
proven beyond a reasonable doubt.” Id.The Georgia Supreme Court also rejected Pace’s argument
about the prosecutor’s closing argument because: (1) the state trial
court’s curative instructions “cured any error that could result
from” the prosecutor’s comparison of Pace to infamous serial kill-
ers; (2) the prosecutor’s use of the cartoon “did not exceed the per-
missible range of argument”; (3) the prosecutor’s golden rule argu-
ment (“come with [him] to th[e] scene[s] of the crime” to “imagine
that night”) was “improper” but, “given the amount of evidence in
aggravation, . . . this argument [did not] change[] the result of the
sentencing phase”; (4) the prosecutor’s comment that “Pace should
not be spared so he could get free room and board and a television
in prison [was] not improper”; (5) the prosecutor’s “gratuitous re-
mark” about anal sodomy in prison was “unprofessional,” but
“Pace did not object to this comment and there is no reasonable
probability that this improper, isolated comment changed the re-
sult of the sentencing phase”; (6) the prosecutor’s religious refer-
ences “did not change the jury’s exercise of discretion from life im-
prisonment to a death sentence”; and (7) the prosecutor’s “[s]imu-
lated tearing of a Georgia law book” was not improper because
“[v]iewed in context,” “the prosecutor’s argument [could not] be
reasonably construed as ‘reading the law’” and “[i]t [was] not im-
proper for the [s]tate to argue that [Pace] deserve[d] the harshest
penalty.” Id. at 505–07. The Georgia Supreme Court concluded
that, despite the prosecutor’s “several improper comments during
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16-10868 Opinion of the Court 35
closing argument,” Pace’s death sentences “were not imposed un-
der the influence of passion, prejudice, or any other arbitrary fac-
tor” “given the overwhelming evidence of Pace’s guilt and the
enormous amount of evidence in aggravation.” Id. at 507.
Finally, because “[l]ife imprisonment without parole was
not a sentencing option at Pace’s trial,” the Georgia Supreme Court
concluded that the state trial court did not err in preventing Pace
“from asking questions about parole during voir dire,” “deny[ing]
argument or the presentation of evidence about Pace’s parole eli-
gibility,” or in responding to the jury’s note about whether a sen-
tence of life without parole was possible. Id. The Georgia Supreme
Court determined that the state trial court’s response to the jury
was “appropriate” and “correct.” Id.State Habeas Relief
After the Georgia Supreme Court affirmed Pace’s death sen-
tences on direct appeal, Pace petitioned for a writ of habeas corpus
in state court. Pace asserted four claims that are relevant to his
appeal: (1) trial counsel were ineffective for failing to investigate
and present evidence of Pace’s history of mental illness and his un-
derprivileged childhood as mitigation at the sentencing phase;
(2) trial counsel were ineffective for failing to object to the prose-
cutor’s improper closing arguments at the sentencing phase; (3) the
state trial court violated Pace’s right to a reliable sentencing by ad-
mitting evidence that he burglarized Coretta Scott King; and (4) the
state trial court violated Pace’s right to a reliable sentencing by not
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36 Opinion of the Court 16-10868
instructing the jury about Pace’s eligibility for parole. The state
habeas court held an evidentiary hearing on December 2, 2003.
Pace’s state habeas evidence
Pace didn’t present live testimony. Instead, he submitted
documentary evidence, including his prison medical records, affi-
davits and deposition testimony from mental health experts, his
trial counsel’s affidavits, deposition testimony, and case files, and
more than twenty affidavits and letters from witnesses familiar
with Pace’s background.
1. Mental health evidence
Pace’s postconviction prison medical records included a
March 9, 2001, psychiatric evaluation. The record showed that the
warden had requested “an immediate mental health evaluation of
[Pace] because several letters had apparently been sent out indicat-
ing that he believe[d] that there [was] something going on that
might lead to his harm.” Dr. Paul Beecham, a prison psychiatrist,
examined Pace. Dr. Beecham described Pace as “alert, well-ori-
ented, calm, cooperative[,] and appropriate,” showing “no indica-
tion of any agitation.” Dr. Beecham’s “diagnostic impression” was
that Pace had a “delusional disorder, persecutory type” but Dr.
Beecham thought that “the situation w[ould] have to worsen in
terms of the intensity and extent of his delusional system before
[they] c[ould] intervene.”
Pace submitted affidavits from Dr. Richard Dudley, a foren-
sic psychiatrist, Dr. Paul Nestor, a neuropsychologist, and Dr.
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16-10868 Opinion of the Court 37
Herendeen, the psychologist who had examined Pace before trial.
Dr. Dudley examined Pace in November 2002 and March 2003, re-
viewed Pace’s school, prison, and medical records, reviewed the
other affidavits submitted on Pace’s behalf to the state habeas
court, and interviewed Pace’s mother and his sister Jennifer. Based
on his examination of Pace and his review of Pace’s medical and
social history, Dr. Dudley concluded that Pace “suffer[ed] from a
major mental illness, [s]chizophrenia, which ha[d] been present for
many years, including the time of the crimes of which he [was] con-
victed and during his trial on these charges.” Dr. Dudley also con-
cluded that Pace “showed clear evidence of acute symptoms of
schizophrenia at the time of the offenses for which he [was] now
sentenced to death.” Dr. Dudley wrote that Pace “manifested
symptoms” of schizophrenia when he was evaluated by Dr. Heren-
deen before Pace’s trial.
Dr. Dudley disagreed with Dr. Beecham—the prison psychi-
atrist’s—postconviction diagnosis of Pace as having delusional dis-
order. Dr. Dudley averred that “schizophrenia was the more accu-
rate diagnosis” for “a number of reasons,” including that Pace had
“schizophrenic negative symptoms” and “abundant evidence of . . .
positive symptoms and thought disorder not present in a delusional
disorder,” and “clearly show[ed] evidence of neuropsychological
impairment, which almost invariably accompanie[d] schizophre-
nia, but not delusional disorders.” In Dr. Dudley’s opinion, “[t]he
minimal social demands of [Pace’s] current incarceration likely
help[ed] to mask the profound effects that schizophrenia exert[ed]
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38 Opinion of the Court 16-10868
on his judgment, behavior, and capacity to meet the ordinary de-
mands of life.”
Dr. Nestor interviewed Pace around the same time, in Janu-
ary 2003, and administered “intelligence and achievement tests to
determine [Pace’s] cognitive functioning” and “to determine
whether [Pace] show[ed] signs and symptoms of schizophrenia.”
He also reviewed Pace’s school, prison, and medical records. Dr.
Nestor concluded that there was “an extremely strong, if not in-
controvertible, evidentiary basis for a diagnosis of schizophrenia.”
Dr. Nestor noted that Dr. Herendeen’s pretrial psychological test-
ing results were “consistent with” and “fulfill[ed]” the “criteria for
schizophrenia.” Like Dr. Dudley, Dr. Nestor disagreed with Dr.
Beecham’s diagnosis of delusion disorder because Pace “clearly
showed evidence of neuropsychological impairment, which invar-
iably accompanie[d] schizophrenia, but not delusional disorders.”
Dr. Herendeen wrote that Pace’s state habeas counsel had
told him that Pace had been “diagnosed as suffering from schizo-
phrenia and organic brain damage” and had given him “records and
affidavits recounting [Pace’s] family history.” According to Dr.
Herendeen, “[t]hese records [were] far more comprehensive than
those [he] was provided in 1995.” Dr. Herendeen noted that “[t]he
results of [Pace’s] current neuropsychological testing showing or-
ganicity [were] consistent with [his pretrial] screening tests and
what [he] reported to [Investigator] Leonard.” Dr. Herendeen also
“concur[red] with the diagnosis of schizophrenia and believe[d] it
would have been an available and appropriate diagnosis at the time
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16-10868 Opinion of the Court 39
[he] evaluated [Pace], had [he] been provided the background and
historical materials on [Pace] and his family and been given the op-
portunity to further evaluate [Pace], as [he] recommended.”
2. Trial counsel’s and Investigator Leonard’s testimony
Pace submitted affidavits and deposition testimony from
Mr. Mears, Ms. Mau, and Investigator Leonard. In his affidavit, Mr.
Mears explained that Ms. Mau had planned to examine Pace’s mit-
igation witnesses during the sentencing phase of trial but she “be-
came rattled” during her opening statement and was “unable to ef-
fectively continue.” So Mr. Mears “took over the presentation” of
the sentencing phase. Mr. Mears had met Pace’s mother and “sev-
eral” of Pace’s siblings before trial and used Ms. Mau’s interview
notes during his examination. Mr. Mears thought that Pace’s
mother and Ms. Todd “were productive witnesses” but that “[t]he
other siblings were belligerent” and “did not give the sincere testi-
monials regarding [Pace’s] gentle nature and good character, with
heartfelt pleas for mercy, that we were [counting] on.” Mr. Mears
explained that “it [was] his understanding that experts [now] be-
lieve[d Pace] was suffering from schizophrenia at the time of the
crimes and was psychotic at that time” and that “if we had this in-
formation it [was] certainly something we would have considered
using” as mitigation. And Mr. Mears said that his failure to object
to the “religious references” that the state made in its closing argu-
ment “was not a deliberate omission.”
Mr. Mears explained that trial counsel “were attempting to
present a defense that was consistent with [Pace’s] plea of not
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40 Opinion of the Court 16-10868
guilty” and Pace’s “consistent . . . assertions that he was innocent
of the charges against him.” Mr. Mears said that “[t]he [s]tate’s case
got stronger as it went on” because “a lot of things that started off
looking good insofar as being able to attack the credibility of the
[s]tate’s case wasn’t quite as good as we thought it was or hoped it
would have been by the time we got to trial.” But Mr. Mears
thought that “there was nothing that we had in the way of a tradi-
tional defense other than he didn’t do it, and sometimes that’s the
only defense you have and you try to . . . convince the jurors that
the [s]tate ha[d]n’t proven its case beyond a reasonable doubt.”
Mr. Mears also explained that it was important for trial coun-
sel’s presentation during the guilt phase to be consistent with their
presentation during the sentencing phase:
[O]nce you’ve raised that type of defense during the
guilt/innocence phase, you have to be very careful
during the sentencing phase not to do a 180-degree
turn in front of the jury and say, oh, you got us, now
don’t sentence him to death. Because the jurors re-
sent, in my opinion, jurors resent the defense attor-
neys who for two or three weeks say my client is in-
nocent, he didn’t do it, you don’t have enough evi-
dence, and then you come back in the sentencing
phase, well, he did it so let’s be merciful.
You have to be consistent in the defense that you raise
at guilt/innocence with the way you present mitiga-
tion. One of the ways that you do that in a not guilty,
my client didn’t do it, is to continue to argue residual
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16-10868 Opinion of the Court 41
doubt as a possible mitigating factor, and residual
doubt being, look, there might have been enough ev-
idence beyond a reasonable doubt and you the jurors
have found that, but is that enough proof to sentence
this person to death.
And I think that was part of what we were doing in
[Pace’s] case was to try to continue the residual
doubt, along with the other mitigating evidence that
we attempted to present.
Mr. Mears was experienced in trying death penalty cases and
estimated that “probably [eighty] percent of them . . . had some as-
pect of mental health as an issue for the defense.” It was “common
practice, in [his] opinion, in death penalty cases for counsel to have
. . . a client evaluated to determine whether or not there[ were] any
flags that [were] raised with regard to possible mental health is-
sues.” Mr. Mears explained that it was his decision not to present
Dr. Herendeen at Pace’s trial and that he “would be very reluctant
to put a doctor up to say my client suffer[red] from an antisocial
personality disorder” because he thought the diagnosis “tend[ed]
to come across exactly as the name [was]” and would therefore not
be mitigating. Mr. Mears had been aware “that [Pace] suffered
from . . . severe headaches” and had heard “reports of [Pace’s] drug
use.” But if Pace had “some underlying mental illness,” Mr. Mears
conceded that it was something “that [he] just missed.”
Ms. Mau testified that “[Pace’s] family believed strongly in
[his] innocence, and it was difficult to get them focused on anything
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42 Opinion of the Court 16-10868
else” during her initial interviews with them. When Ms. Mau met
with Pace’s siblings a few weeks before trial, “[t]hey remained con-
vinced [Pace] was innocent” and Ms. Mau was “concerned that de-
spite our efforts, they would not be conciliatory before the jury.”
Ms. Mau also thought that Ms. Todd and Pace’s mother “were the
only people who gave the testimony we had envisioned” and that
Pace’s siblings’ testimony was not “the testimony we had hoped
for” because they “were defensive, and the prosecutor was able to
prod them into being argumentative and unsympathetic.”
As to Pace’s mental health, Ms. Mau said that “Dr. Heren-
deen’s assessment showed [Pace] to be slow but not much more,”
so “we did not go any further with this issue.” Ms. Mau wrote that
Pace’s state habeas counsel had informed her “that [Pace] ha[d]
been diagnosed with schizophrenia” and explained that “we would
have tried to develop and use” Pace’s schizophrenia diagnosis “if
this was something we had known about at the time of trial.”
Investigator Leonard said that “[i]t immediately became ap-
parent” during her interviews “that [Pace’s family] had a tendency
to be combative and having them testify would entail some risk.”
She thought that “[t]he family witnesses did not perform as we had
hoped” at trial because “[t]hey argued that [Pace] could not be
guilty and had in essence been framed, which allowed the [s]tate to
ask pointed questions about the DNA evidence.” But she thought
Ms. Todd “delivered good character evidence we requested with-
out mentioning the problems she had with [Pace].”
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16-10868 Opinion of the Court 43
As to Pace’s mental health, Investigator Leonard had “been
informed” by Pace’s state habeas counsel that Pace had “been diag-
nosed as suffering from [s]chizophrenia, and that the experts be-
lieve[d] he was suffering from schizophrenia at the time of the
crimes and was in fact actively psychotic then.” Investigator Leon-
ard explained that trial counsel’s “preliminary evaluation of [Pace]
was not directed at determining this type of mental illness” but
thought that Pace’s schizophrenia “would have come to light” if
“further testing [had] been done by Dr. Herendeen” and that “we
certainly would have considered using” Pace’s schizophrenia diag-
nosis “[h]ad we had this information.”
3. Testimony about Pace’s background
Pace submitted affidavits from witnesses who painted a neg-
ative picture of his upbringing and mental health. The affiants in-
cluded witnesses who Pace’s trial counsel had interviewed during
their pretrial investigation and witnesses who testified at the sen-
tencing phase of Pace’s trial. For example, Pace’s older brother
Darrell averred that their dad “hit” their mother “when he drank”
and “got mean.” Darrell thought he “was the only one who knew
when we were kids that [Pace] couldn’t read” because Pace “was
embarrassed about it” and “asked [Darrell] not to tell anyone else.”
He also said that Pace started “sniffing paint” when he was ten
years old.
Jennifer, Pace’s younger sister, wrote that their father “was
always violent with [their mom]” and that Pace “hated to see it”
and “always tried to stop it.” When Pace stayed with her after his
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44 Opinion of the Court 16-10868
first stint in prison, Jennifer noticed that “something was wrong”:
Pace “would get agitated by things [she] said, and he’d get upset”
and “just couldn’t seem to control his reactions.”
Pace’s mother swore that her children “sometimes saw
some of [her and Pace’s father’s] physical fights.” She said that Pace
“had a tendency to fall down a lot” and often “ended up hitting his
head,” including the time he “fell out of a parked car and landed on
his head.” She knew that Pace “really seemed not to like” school,
but didn’t know that Pace couldn’t read or write “until he was
grown.”
Ms. Todd, Pace’s former girlfriend, averred that she hadn’t
seen or heard from Pace for “a good six or seven years” before he
called her “out of the blue” sometime in late 1990. She “found out
very quickly that [Pace] was no longer the same person [she’d]
dated the first time around.” He “was much more intense than
he’d been before” and “was like dealing with a child.” She thought
Pace “was just getting more strange each day” and “had become a
man who lived in filth and didn’t even notice.” She described sev-
eral incidents where Pace “was so incomprehensible [that she]
knew something was seriously wrong with him.” One night, for
example, Ms. Todd came home to find “someone lying in [her]
den.” It turned out to be Pace. When Ms. Todd woke him up,
Pace “looked terrible,” “was completely incoherent,” and “was
moving his hands around his head . . . like he was pointing at or
describing what was going on inside his head, like he was hearing
something in there.”
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16-10868 Opinion of the Court 45
Ms. Todd remembered speaking with Ms. Mau and Investi-
gator Leonard before Pace’s trial, but said that Investigator Leon-
ard “didn’t seem to want to know anything of substance about
[Pace], only ‘good’ anecdotes.” Ms. Todd “was frustrated that [she]
wasn’t being allowed to tell the full story that [she] knew about
[Pace].” At Pace’s trial, Ms. Todd “just answered the questions that
were asked of [her]” but would have testified about Pace’s strange
behavior “[i]f [she] had been asked.”
Ms. Grissom, the teacher who Investigator Leonard inter-
viewed before Pace’s trial, also submitted an affidavit. Ms. Grissom
clarified that she knew Pace “not because he was in [her] class, but
because he came from a family familiar to everyone at the school.”
She said that Pace “was poor,” “came from a family known for its
neglect,” lived in a bad apartment complex, and “had trouble learn-
ing.” She also said that Pace had been placed in a class for children
with “special education needs” but explained that “it[ was] not a
great surprise that with [Pace’s] history of absenteeism he never
got the kind of help or attention he needed.”
The affiants also included witnesses who Pace’s trial counsel
had not interviewed during their pretrial investigation or who had
not testified during the sentencing phase of Pace’s trial. For exam-
ple, Jerry Johnson, a man who lived with Pace at an Atlanta board-
ing house in 1991, said that he and Pace were in a romantic rela-
tionship while Pace was dating Ms. Todd. Pace and Mr. Johnson
hid their relationship from Ms. Todd and Pace’s family. Mr. John-
son described how Pace stopped “taking care of himself” and had
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46 Opinion of the Court 16-10868
to be reminded “to take a bath because he smelled so bad.” Mr.
Johnson said that Pace “was talking to himself all the time.” After
Mr. Johnson asked Pace to leave an apartment they had moved into
together, someone—Mr. Johnson suspected it was Pace—“broke[]
into and trashed” the apartment and vandalized his car.
Witnesses who had spent time in jail with Pace after the
murders also submitted affidavits. They wrote that Pace “seem[ed]
to be kind of ‘nuts,’” would “talk to himself pretty constantly,”
“had delusions of grandeur,” and “rubbed people the wrong way.”
Other members of Pace’s family, including Pace’s father and
Pace’s father’s former common-law wife, and members of the
McDaniel family—close friends who Pace’s family considered fam-
ily—submitted affidavits. Pace’s father swore that Pace “was al-
ways falling down and hitting his head when he was little,” would
“complain[] about headaches a lot,” “had a bad habit of sniffing
paint,” and was “pretty much a loner.”
Pace’s father’s former common-law wife, Mary Ann Hill
Goree, said that she met Pace’s father when he was thirty-seven
years old and she was thirteen years old. When they met, Ms.
Goree lived in Birmingham, Alabama, and she had “vivid memo-
ries” of Pace’s father “forcibly rap[ing her] frequently when he
came to town.” Ms. Goree was fifteen years old when Pace’s
mother left Pace’s father and Pace’s father moved to Birmingham.
Ms. Goree soon “realized [she] was pregnant by [Pace’s father].”
They moved in together, and Pace’s father “was always rough with
[her], and violent” and “continued to rape [her] on a daily basis.”
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16-10868 Opinion of the Court 47
Ms. Goree left Pace’s father when she was twenty-seven years old,
but Pace’s father found her and attacked her, “held a knife to [her]
throat,” “pulled out a gun and held it to [her] head,” threatened to
“blow [her] brains out,” and “raped [her] vaginally and anally.” Af-
ter Pace’s father assaulted and raped her again the next day, Ms.
Goree called the police and Pace’s father was arrested. Ms. Goree
had “only recently learned the details of” Pace’s case and said that
“they reminded [her] of [Pace’s father].”
Members of the McDaniel family painted a negative picture
of Pace’s family’s home life and of Pace’s mental health. Marian
McDaniel wrote that “[t]he places [Pace’s mother] lived were
places you wouldn’t want your dog living in” because “[t]hey were
always filthy.” Sandra McDaniel said that Pace’s family “never had
enough to eat, and their utilities would always get cut off because
[Pace’s mother] hadn’t paid the bills, and the places they lived were
filthy, roach-infested, and cluttered, with everything thrown all
over.” Sandra McDaniel thought that Pace’s mother “never
seemed all that interested” in her children and that “those kids
didn’t really have any adult guidance or care.” And Sandra McDan-
iel remembered that Pace “just looked disturbed,” “kept saying that
someone was after him,” and “was alone all the time.”
The state’s state habeas evidence
At the evidentiary hearing in the state habeas case, the state
called Mr. Johnson and Renae Shaw to testify.
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48 Opinion of the Court 16-10868
1. Mr. Johnson
Mr. Johnson, Pace’s former roommate at the boarding
house, testified for the state at the evidentiary hearing. Mr. John-
son testified that Pace broke into his house and stole some vases
even though Mr. Johnson “had burglar bars on [his] house.” He
said that he and Pace would “occasionally” use crack cocaine on
the weekends.
2. Ms. Shaw
Ms. Shaw, a paralegal with the capital litigation section of
the Georgia Attorney General’s office, testified that she attended
the state’s interview of Mr. Johnson. Ms. Shaw said that Mr. John-
son “stated he and also [Pace] used crack at times” and that “while
[Mr. Johnson] was out of the house, [Pace] also used crack.” Ms.
Shaw said that Mr. Johnson said that “[h]e just assumed that Pace
was doing a lot of burglaries” because Mr. Johnson would come
home to find that “Pace had all this stuff that he had gotten” but
“never said where he got it from.”
The state habeas court denied Pace’s habeas petition
On July 30, 2007, the state habeas court denied Pace’s habeas
petition. Applying Strickland, the state habeas court denied Pace’s
claims that his trial counsel were ineffective because “[t]he deci-
sions of [trial] counsel throughout the guilt-innocence phase and
the sentencing phase were strategic and sound,” “trial counsel pro-
vided more than adequate representation,” and “Pace did not suffer
prejudice from any alleged ineffectiveness.”
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As to Pace’s claim that trial counsel were ineffective for fail-
ing to investigate and present evidence of Pace’s history of mental
illness and underprivileged childhood as mitigation at the sentenc-
ing phase, the state habeas court determined that trial counsel per-
formed adequately in investigating and presenting mitigation evi-
dence because: (1) their “investigation spanned a wide range of in-
formation, including Pace’s mental health”; (2) they “chose the trial
strategies after reasonable efforts to investigate other, alternative
strategies”; (3) they “effectively utilized the available information
and resources and [were] not unreasonable in choosing to present
a reasonable doubt defense during the guilt-innocence phase . . .
[or] in maintaining a consistent defense of residual doubt” during
the sentencing phase; (4) “[b]ased on extensive research,” they pre-
pared and “called [eleven] mitigation witnesses who testified about
the good character of Pace, his quiet nature, and their belief that he
was innocent”; and (5) Mr. Mears’s “closing argument was con-
sistent with Pace’s theory of defense.”
The state habeas court also concluded that, even if ineffec-
tive, there was no reasonable probability that the mitigating evi-
dence would have resulted in a different outcome at sentencing be-
cause: (1) neither Dr. Dudley nor Dr. Nestor “acknowledged the
difficulty of conducting a retrospective evaluation spanning back to
1988, the year of the first murder” and “their findings conflict with
the mental health experts at the [prison]”; (2) “[m]uch” of the ha-
beas testimony from Pace’s family and friends was “cumulative of
testimony presented at trial, and all the information contained in
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50 Opinion of the Court 16-10868
the affidavits was known to [trial] counsel”; (3) the affidavits Pace
submitted “contain[ed] information both helpful and damaging” to
Pace’s mitigation case; (4) Mr. Johnson’s testimony would have
“seriously undermined defense counsel[’s] efforts” because it
“would have demonstrated Pace’s deceitfulness with his girlfriend,
Trina Todd,” and because Mr. Johnson swore in his affidavit that
Pace burglarized and vandalized his apartment, testified that Pace
regularly used crack cocaine, and admitted to Ms. Shaw that he as-
sumed that Pace burglarized other homes; and (5) “the evidence of
Pace’s guilt was overwhelming.”
The state habeas court denied Pace’s claim that trial counsel
were ineffective for failing to object to the state’s improper closing
arguments at the sentencing phase because Pace couldn’t “show
prejudice.” The state habeas court noted that “[t]he transcript
show[ed] that [Mr.] Mears made several objections to the prosecu-
tor’s closing argument, some of which were sustained or cured
with instructions.” And, the state habeas court reasoned, the
“Georgia Supreme Court has held that wide latitude is given to
prosecutors in closing argument” and that, in affirming Pace’s
death sentences on direct appeal, the Georgia Supreme Court “ex-
amined the prosecutor’s argument and found no reasonable prob-
ability that the alleged improprieties changed the outcome of the
sentence.”
The state habeas court also denied Pace’s claim that the state
trial court’s admission of evidence that Pace burglarized Coretta
Scott King violated his right to a reliable sentencing as “barred by
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16-10868 Opinion of the Court 51
res judicata” because the Georgia Supreme Court “affirmed the ad-
mission of the King burglary, concluding that the [s]tate presented
reliable evidence about the offenses.” And Pace’s claim that the
state trial court’s failure to instruct the jury about Pace’s eligibility
for parole was also “res judicata,” the state habeas court concluded,
because the Georgia Supreme Court “h[eld] that . . . the [state] trial
court’s response to the jury note regarding parole was appropri-
ate.”
The Georgia Supreme Court denied Pace’s application for a certif-
icate of probable cause to appeal the denial of habeas corpus
Pace applied to the Georgia Supreme Court for a certificate
of probable cause to appeal. The Georgia Supreme Court denied
Pace’s application after “independently reviewing the trial record
and the habeas record.”
As to the state habeas court’s denial of Pace’s claim that his
trial counsel were ineffective in investigating and presenting miti-
gation evidence during the sentencing phase, the Georgia Supreme
Court
conclude[d] that, while the [state] habeas court erred
in some instances in considering the effect of coun-
sel’s alleged sentencing phase deficiencies on the
jury’s finding of guilt rather than its selection of a sen-
tence in determining whether [Pace] ha[d] shown the
necessary prejudice to constitute ineffective assis-
tance at the sentencing phase of trial, . . . the [state]
habeas court did not err in finding that [Pace] ha[d]
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52 Opinion of the Court 16-10868
failed to show that counsel’s sentencing phase perfor-
mance in those instances was deficient under consti-
tutional standards and there [was] no arguable merit
to [Pace’s] ineffective assistance of counsel claims.
The Georgia Supreme Court summarily denied the rest of
Pace’s application for a certificate of probable cause to appeal in its
entirety, stating: “[i]n light of the foregoing and upon considera-
tion of the entirety of the [a]pplication for [a] [c]ertificate of [p]rob-
able [c]ause to appeal the denial of habeas corpus, it is hereby de-
nied.”
Federal Habeas Proceedings
Pace filed a section 2254 petition for writ of habeas corpus in
the Northern District of Georgia. Five of his claims are relevant to
his appeal. First, Pace argued that the state habeas court unreason-
ably applied Strickland in denying his claim that trial counsel were
ineffective in investigating and presenting mitigation evidence at
the sentencing phase. Second, Pace contended that the state ha-
beas court unreasonably applied Darden in denying his claim that
the prosecutor’s sentencing phase closing argument violated his
right to a reliable sentencing. Third, Pace asserted that the state
habeas court unreasonably applied Strickland in denying his claim
that trial counsel were ineffective for failing to object during the
closing argument to the state’s “unconstitutional injection of reli-
gious argument in favor of the death penalty” and “unconstitu-
tional arguments that jurors should put themselves in the victim’s
shoes.” Fourth, Pace maintained that the state habeas court
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16-10868 Opinion of the Court 53
unreasonably applied clearly established federal law in denying his
claim that the state trial court’s admission of evidence that he bur-
glarized Coretta Scott King violated his right to a reliable sentenc-
ing because “Mrs. King’s iconic standing . . . rendered the admis-
sion of this evidence so inflammatory and prejudicial as to violate
[Pace’s] constitutional rights.” And fifth, Pace argued that the state
habeas court unreasonably applied Simmons in denying his claim
that the state trial court violated his right to a reliable sentencing
by refusing to instruct the jury about Pace’s eligibility for parole.
The district court denied Pace’s section 2254 petition. First,
the district court denied Pace’s claim that his trial counsel were in-
effective in their investigation and presentation of mitigation evi-
dence at the sentencing phase. The district court concluded that
the state habeas court reasonably determined that trial counsel’s
performance was reasonable because “the record demonstrate[d]
that counsel and the mitigation specialist mounted an exhaustive
investigation effort to uncover evidence for the sentencing phase
of [Pace’s] trial” and “had a psychologist interview and evaluate”
Pace. The district court also concluded that the state habeas court
didn’t unreasonably determine that Pace wasn’t prejudiced by any
deficiency in trial counsel’s performance because “the truly horrific
nature of [Pace’s] crimes overc[a]me the mitigating nature of any
evidence that trial counsel could have presented.”
Second, the district court denied Pace’s claim that the state’s
improper sentencing phase closing arguments violated his right to
a reliable sentencing. The district court concluded that “it [was]
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54 Opinion of the Court 16-10868
evident from the [Georgia Supreme Court’s] repeated conclusions
that the various arguments did not change the result of the penalty
phase or change the jury’s direction” and that “the weight of the
aggravating evidence against” Pace meant that the district court’s
“confidence in the outcome of the sentencing phase of [Pace’s] trial
[was] not shaken by the prosecution’s closing argument.”
Third, the district court denied Pace’s claim that his trial
counsel were ineffective for failing to object to the state’s improper
sentencing phase closing arguments. The district court concluded
that Pace “failed to present argument that might tend to establish
that it [was] more likely that the trial court would have granted a
mistrial or that the Georgia Supreme Court would have viewed the
trial court’s refusal to grant a mistrial as reversible error.”
Fourth, the district court denied Pace’s claim that the state
trial court’s admission of evidence that he burglarized Coretta
Scott King violated his right to a reliable sentencing, concluding
that the claim was procedurally defaulted. The district court ex-
plained that Pace’s claim that the state trial court’s admission of
evidence that Pace burglarized Coretta Scott King violated his right
to a reliable sentencing “differ[ed] from the claim that he raised on
[direct] appeal regarding the burglaries” because Pace’s claim on
direct appeal was that “the [state] trial court erred in allowing the
[prior burglary] conviction[] into evidence at trial as it was not a
voluntary plea based on the alleged ineffectiveness of trial coun-
sel.” Thus, the district court concluded that the state habeas court
incorrectly “denied the claim as res judicata” and “should have
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concluded that the claim was procedurally defaulted because
[Pace] had never raised it before.” And even if Pace’s state appellate
counsel was ineffective in failing to raise the claim on direct appeal,
that would not “constitute[] cause and prejudice to lift the proce-
dural bar,” the district court explained, because “the claim [was]
without merit, and . . . thus [Pace could not] demonstrate preju-
dice.” Pace wasn’t prejudiced, the district court concluded, be-
cause: (1) Pace “did, in fact, burglarize Coretta Scott King’s home,
and that fact [was] clearly the type of information that a sentencing
tribunal should take into consideration when weighing the appro-
priate sentence to impose”; and (2) his “burglary of [Coretta Scott
King’s] home was minor” when compared to “the utter brutality
and depravity” of Pace’s crimes against Ms. McAfee, Ms. McClen-
don, Ms. Martin, and Ms. Britt.
Finally, the district court denied Pace’s claim that the state
trial court’s refusal to inform the jury about Pace’s eligibility for
parole violated his constitutional rights because he “was, in fact,
parole eligible, and where that [was] the case, the Constitution
d[id] not require that the jury be told anything about parole.”
The district court granted Pace a certificate of appealability
on his claims that: (1) “trial counsel was ineffective in investigating
and presenting mitigation evidence during the penalty phase”;
(2) “the prosecution made improper closing argument during the
penalty phase”; (3) “trial counsel was ineffective for failing to object
to the prosecutor’s improper closing arguments during the penalty
phase”; (4) “the penalty phase of the trial was rendered unfair
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56 Opinion of the Court 16-10868
because of the admission of evidence regarding the burglary of the
residence of Coretta Scott King”; and (5) “the trial court erred in
limiting evidence regarding [Pace’s] eligibility for parole.” We de-
nied Pace’s motion to expand the certificate of appealability.
STANDARD OF REVIEW
“We review de novo the district court’s denial of a 28 U.S.C.
[section] 2254 petition.” Smith v. Comm’r, Ala. Dep’t of Corr., 924
F.3d 1330, 1336 (11th Cir. 2019). Under the Antiterrorism and Ef-
fective Death Penalty Act of 1996 (AEDPA), federal courts may not
grant a section 2254 petition on any claim that was adjudicated on
the merits in state court unless the state court’s adjudication was
(1) “contrary to, or involved an unreasonable application of, clearly
established [f]ederal law, as determined by the Supreme Court of
the United States” or (2) “based on an unreasonable determination
of the facts in light of the evidence presented in the [s]tate court
proceeding.” 28 U.S.C. § 2254(d). “[W]e must presume the state
court’s factual findings to be correct unless the petitioner rebuts
that presumption by clear and convincing evidence.” DeBruce v.
Comm’r, Ala. Dep’t of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014)
(citing 28 U.S.C. § 2254(e)(1)); see Reese v. Sec’y, Fla. Dep’t of
Corr., 675 F.3d 1277, 1287 (11th Cir. 2012) (“[O]ur review of find-
ings of fact by the state court is even more deferential than under a
clearly erroneous standard of review.” (quotation omitted)).
Our focus under section 2254(d) is on the “last reasoned”
state court decision. McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252,
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16-10868 Opinion of the Court 57
1261 n.12 (11th Cir. 2009). The question is not whether we believe
that decision was “incorrect” but whether the decision “was unrea-
sonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). A state court’s decision is not unreasona-
ble “so long as fairminded jurists could disagree on the correctness
of the . . . decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quotation omitted). “If this standard is difficult to meet, that is
because it was meant to be.” Id. at 102. “[E]ven a strong case for
relief does not mean the state court’s contrary conclusion was un-
reasonable.” Id. “Section 2254(d) reflects the view that habeas cor-
pus is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction
through appeal.” Id. at 102–03 (quotation omitted). To obtain re-
lief, “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in ex-
isting law beyond any possibility for fairminded disagreement.” Id.
at 103.
DISCUSSION
We consider only the five issues in Pace’s certificate of ap-
pealability. See Murray v. United States, 145 F.3d 1249, 1251 (11th
Cir. 1998) (“[I]n an appeal brought by an unsuccessful habeas peti-
tioner, appellate review is limited to the issues specified in the [cer-
tificate of appealability].”). First, we explain why the Georgia Su-
preme Court did not unreasonably apply Strickland in denying
Pace’s claim that his trial counsel were ineffective in investigating
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58 Opinion of the Court 16-10868
and presenting mitigation evidence during the sentencing phase.
Second, we address why the Georgia Supreme Court did not un-
reasonably apply Darden in concluding that the state’s improper
sentencing phase closing arguments did not violate Pace’s right to
a reliable sentencing. Third, we review why the Georgia Supreme
Court did not unreasonably apply Strickland in denying Pace’s
claim that his trial counsel were ineffective for failing to object to
statements the prosecutor made during the sentencing phase clos-
ing arguments. Fourth, we discuss why the district court correctly
concluded that Pace’s claim that the admission of evidence that
Pace burglarized Coretta Scott King violated his right to a reliable
sentencing is procedurally defaulted and, even if it weren’t, the
claim would fail on de novo review. And fifth, we show why the
Georgia Supreme Court did not unreasonably apply Simmons in
concluding that excluding evidence of Pace’s parole eligibility did
not deny Pace a reliable sentencing.
Pace’s Claim That Trial Counsel Were Ineffective in Investigating
and Presenting Mitigation Evidence During the Sentencing Phase
The Georgia Supreme Court denied Pace’s claim that his
trial counsel were ineffective in investigating and presenting miti-
gating evidence during the sentencing phase of the trial because
Pace “failed to show that counsel’s sentencing phase performance
. . . was deficient under constitutional standards.” “In applying
AEDPA, we must determine whether any fairminded jurist could
agree with that assessment.” See McKiver v. Sec’y, Fla. Dep’t of
Corr., 991 F.3d 1357, 1365 (11th Cir. 2021). We conclude that
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fairminded jurists could agree with the Georgia Supreme Court’s
application of Strickland.
Strickland
Under Strickland, “[a] petitioner asserting a claim of ineffec-
tive assistance of counsel must demonstrate both deficient perfor-
mance and prejudice—that counsel’s performance ‘fell below an
objective standard of reasonableness’ and that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Hitchcock v. Sec’y,
Fla. Dep’t of Corr., 745 F.3d 476, 485 (11th Cir. 2014) (quoting
Strickland, 466 U.S. at 687–88). “Because the failure to demonstrate
either deficient performance or prejudice is dispositive of the claim
against the petitioner, ‘there is no reason for a court deciding an
ineffective assistance claim to address both components of the in-
quiry if the defendant makes an insufficient showing on one.’”
Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir.
2009) (cleaned up) (quoting Strickland, 466 U.S. at 697).
The performance inquiry is “highly deferential,” and courts
must not succumb to the “all too tempting” impulse “to conclude
that a particular act or omission of counsel was unreasonable” after
counsel’s defense “has proved unsuccessful.” Strickland, 466 U.S.
at 689. “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of rea-
sonable professional judgment.” Id. at 690. “No absolute rules dic-
tate what is reasonable performance for lawyers.” Chandler v.
United States, 218 F.3d 1305, 1317 (11th Cir. 2000) (citing
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60 Opinion of the Court 16-10868
Strickland, 466 U.S. at 688–89). Instead, “the performance inquiry
must be whether counsel’s assistance was reasonable considering
all the circumstances.” Strickland, 466 U.S. at 688 (emphasis
added). In other words, if a reasonably competent attorney in
counsel’s shoes could—but not necessarily would—have per-
formed the same, then the representation was adequate. See
White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992) (“We ask
only whether some reasonable lawyer at the trial could have acted,
in the circumstances, as defense counsel acted at trial.”); see also
Harrington, 562 U.S. at 110 (“Strickland does not guarantee perfect
representation, only a reasonably competent attorney.” (quotation
omitted)); Rompilla v. Beard, 545 U.S. 374, 381 (2005) (referring to
“[a] standard of reasonableness applied as if one stood in counsel’s
shoes”).
In reviewing a state court’s determination that an attorney’s
performance was not unreasonable, we decide only whether the
state court’s conclusion about the reasonableness of counsel’s per-
formance was itself reasonable. See 28 U.S.C. § 2254(d)(1). We
therefore give “both the state court and the defense attorney the
benefit of the doubt.” Woods v. Etherton, 578 U.S. 113, 117 (2016)
(quotation omitted). In other words, “because the standards cre-
ated by Strickland and [section] 2254(d) are both highly deferen-
tial,” our review is “doubly” deferential “when the two apply in
tandem.” Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248,
1265 (11th Cir. 2020) (cleaned up).
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16-10868 Opinion of the Court 61
As to Strickland’s second prong, the prejudice inquiry
doesn’t ask whether “the errors had some conceivable effect on the
outcome of the proceeding.” See Strickland, 466 U.S. at 693. In-
stead, where a defendant challenges a death sentence, “the preju-
dice inquiry asks ‘whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not war-
rant death.’” Hitchcock, 745 F.3d at 485 (quoting Strickland, 466
U.S. at 695).
The Georgia Supreme Court did not unreasonably apply Strick-
land’s performance prong
The Georgia Supreme Court determined that “the [state] ha-
beas court did not err in finding that [Pace] ha[d] failed to show that
[trial] counsel’s sentencing phase performance . . . was deficient un-
der constitutional standards.” Pace argues that the Georgia Su-
preme Court unreasonably applied Strickland’s performance
prong. He asserts that “it was per se unreasonable [for trial coun-
sel] not to conduct a complete investigation of [Pace’s] background
and social history before deciding to rely upon doubt about guilt at
sentencing.” But we can’t say that the Georgia Supreme Court un-
reasonably applied Strickland in affirming the state habeas court’s
determination that trial counsel performed a reasonable investiga-
tion that was sufficient to enable an informed decision to pursue a
residual doubt defense during the sentencing phase.
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62 Opinion of the Court 16-10868
1. Trial counsel’s investigation of mitigation evidence was
reasonable
The state habeas court determined that Pace’s trial counsel
performed reasonably in investigating and presenting mitigating
evidence because they investigated “a wide range of information,
including Pace’s mental health,” and made “reasonable efforts to
investigate other, alternative strategies.” The state habeas court’s
determination was not unreasonable.
A. Investigation of Pace’s background
The state habeas court’s determination that trial counsel rea-
sonably investigated Pace’s background was not unreasonable.
The record shows that trial counsel hired Investigator Leonard to
help investigate Pace’s background and that they interviewed Pace
to learn about his upbringing, history of head injuries, drug use,
and academic difficulties. Trial counsel and Investigator Leonard
also met as a group with Pace’s mother, his sister Lisa, his brother
Garry, and Garry’s wife, Penny. At that meeting, trial counsel and
Investigator Leonard “described the scope and purpose of mitiga-
tion evidence in a bifurcated trial,” “emphasized that [Pace] [was]
in a lot of trouble and [they] need[ed] to plan for a sentencing
phase,” and got names and contact information for each of Pace’s
siblings and “several people who kn[e]w [Pace] and the Pace fam-
ily.”
After the group meeting with Pace’s family, trial counsel and
Investigator Leonard interviewed Pace’s mother, siblings, former
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16-10868 Opinion of the Court 63
girlfriend, former teachers, and longtime family friends about
Pace’s background. They also sought Pace’s and his parents’ birth
certificates, medical records, school records, social security rec-
ords, employment records, and criminal and civil court records.
And they compiled the information from their interviews and the
records they obtained into a “social history chronology” of Pace’s
family dating back to 1875.
In short, trial counsel’s investigation of Pace’s background
was comprehensive and thorough. Trial counsel hired a profes-
sional to help with the mitigation investigation, interviewed wit-
nesses about Pace’s childhood, mental health, drug and alcohol
use, and potential physical abuse, and reviewed school records,
medical records, employment records, criminal records, and more.
“We have previously determined that an attorney performed a rea-
sonable investigation of his client’s background after the attorney
performed only some of the actions that [Pace’s trial counsel] per-
formed.” See Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d 1255,
1280–81 (11th Cir. 2013) (collecting cases). The state habeas court’s
determination that trial counsel performed a reasonable back-
ground investigation was not objectively unreasonable.
Pace argues that his trial counsel were constitutionally inef-
fective because they failed to investigate his “chaotic childhood of
neglect, poverty and dysfunction, a serious head injury that went
mistreated, family violence, and an environment of rampant drug
use.” But trial counsel investigated what Pace and his family and
friends disclosed during their interviews. Pace’s trial counsel
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64 Opinion of the Court 16-10868
investigated the “serious head injury” that Pace and his mother
mentioned and told Dr. Herendeen about it. Trial counsel also in-
vestigated Pace’s childhood and learned from Pace’s siblings that
his parents “drank a little[,] argued often,” and sometimes got into
physical fights, and that Pace grew up in a “bad neighborhood,”
“dr[ank] beer like water,” and “smoked a lot of weed” as a teenager.
Thus, Pace’s trial counsel did investigate Pace’s childhood
and his history of poverty, head injuries, family violence, and drug
use. Trial counsel were not ineffective for “failing to discover and
develop” more powerful mitigating evidence of a chaotic child-
hood that Pace and his family members “d[id] not mention,” see
Puiatti, 732 F.3d at 1281 (quotation omitted); see, e.g., Williams v.
Head, 185 F.3d 1223, 1237 (11th Cir. 1999) (concluding that trial
counsel were not ineffective for failing to find evidence of the peti-
tioner’s childhood abuse and mistreatment where the petitioner
“gave [trial counsel] no reason to suspect abuse and mistreatment”
and where trial counsel spoke to the petitioner’s mother and “got
nothing from her about [the petitioner] having been abused or mis-
treated”), and the records trial counsel requested did not indicate a
chaotic childhood, see Williams v. Taylor, 529 U.S. 362, 395 (2000).
Pace also argues that trial counsel’s background investiga-
tion was deficient because “they did not speak with any members
of the McDaniel family,” they didn’t follow up with Ms. Grissom,
and they “did not know about [Mr.] Johnson because they did not
investigate.” We disagree. As to the McDaniels family, Pace ar-
gues that, if trial counsel had interviewed them, trial counsel
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16-10868 Opinion of the Court 65
“would have gotten a vastly different picture of life in the Pace
household.” But, as we’ve already explained, the state habeas court
did not unreasonably conclude that trial counsel’s investigation
was reasonable and “spanned a wide range of information.”
Trial counsel interviewed, for example, Pace and several of
his family members, including Pace’s mother, his sister Lisa, his
brother Garry, his brother Gregory, his brother Darrell, his sister
Jennifer, and his sister-in-law Penny. They also interviewed three
of his former teachers and spoke to two close family friends, Ms.
Booker and Ms. Turner. Based on their investigation, Pace’s trial
counsel later called eleven mitigation witnesses to testify on behalf
of Pace at sentencing. Strickland required a reasonable investiga-
tion under the circumstances, and that’s what trial counsel did.
Once trial counsel learned about Pace’s background from his
and his parents’ records and their many interviews with Pace, his
family, close family friends, and teachers—in other words, after
they conducted a reasonable investigation under the circum-
stances—trial counsel were not deficient for not interviewing the
McDaniels family. “The right to counsel does not require that a
criminal defense attorney leave no stone unturned and no witness
unpursued.” Raulerson v. Warden, 928 F.3d 987, 997 (11th Cir.
2019) (quotation omitted) (holding that the state habeas court rea-
sonably found that trial counsel’s investigation was adequate
where trial counsel interviewed the petitioner’s “mother, father,
brother, and an uncle” but not certain “extended family members,
teachers, and acquaintances”); see also Gissendaner v. Seaboldt,
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66 Opinion of the Court 16-10868
735 F.3d 1311, 1330 (11th Cir. 2013) (“[T]here comes a point . . . at
which evidence from more distant relatives can reasonably be ex-
pected to be only cumulative, and the search for it distractive of
more important duties.” (quotation omitted)).
As to Ms. Grissom, Investigator Leonard interviewed her.
And the information about Pace’s background that Investigator
Leonard got from Ms. Grissom—his absenteeism, his parents’ ne-
glect, and his bad neighborhood—wasn’t substantially different
from what Ms. Grissom wrote in her state habeas affidavit. Trial
counsel were not ineffective for not following up with Ms. Grissom
because her “account [was] otherwise fairly known to defense
counsel.” See Eggleston v. United States, 798 F.2d 374, 376 (9th
Cir. 1986) (quoting United States v. Decoster, 624 F.2d 196, 209
(D.C. Cir. 1976) (en banc)). And, after interviewing Ms. Grissom,
Investigator Leonard wasn’t sure that she remembered Pace—he
had never been in her class—and thought that she may have
“simply remember[ed] a composite of the many kids like him at
her school, which ha[d] a high population of poor kids.” Based on
Investigator Leonard’s doubts about Ms. Grissom’s memory of
Pace, it wasn’t unreasonable for trial counsel to direct their limited
time and investigative resources elsewhere. See Rogers v. Zant, 13
F.3d 384, 387 (11th Cir. 1994) (explaining “the reality that lawyers
do not enjoy the benefit of endless time, energy or financial re-
sources”).
And Pace doesn’t explain how trial counsel could have rea-
sonably been expected to find out about Mr. Johnson during their
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16-10868 Opinion of the Court 67
investigation. Pace never told them about Mr. Johnson, and Mr.
Johnson explained that he and Pace hid their relationship from Ms.
Todd and Pace’s family. Strickland does not require Pace’s trial
counsel to “scour the globe on the off chance” they’d come across
Pace’s secret romantic partner. See Everett v. Sec’y, Fla. Dep’t of
Corr., 779 F.3d 1212, 1249–50 (11th Cir. 2015) (“[A] defense attor-
ney preparing for the sentencing phase of a capital trial is not re-
quired ‘to scour the globe on the off chance something will turn
up.’” (quoting Rompilla, 545 U.S. at 383)).
“The question under Strickland is whether [Pace’s] trial
counsel conducted an adequate background investigation or rea-
sonably decided to end the background investigation when they
did.” See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1351 (11th
Cir. 2011) (cleaned up). The record shows that trial counsel con-
ducted a thorough background investigation. Contrary to Pace’s
contentions, “[t]his is not a case in which the defendant’s attorneys
failed to act while potentially powerful mitigating evidence stared
them in the face.” See Bobby v. Van Hook, 558 U.S. 4, 11 (2009).
“Given the many witnesses trial counsel or [Investigator Leonard]
interviewed, the mere fact that additional family and social history
witnesses have now been discovered does not make trial . . . coun-
sel ineffective.” See DeYoung v. Schofield, 609 F.3d 1260, 1288
(11th Cir. 2010). Under our “doubly” deferential standard of re-
view, the Georgia Supreme Court did not unreasonably conclude
that Pace’s trial counsel’s performance in investigating mitigation
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68 Opinion of the Court 16-10868
evidence was reasonable under the circumstances. See Jenkins, 963
F.3d at 1265 (quotation omitted).
B. Investigation of Pace’s mental health
A fairminded jurist could also agree with the state habeas
court’s assessment that trial counsel’s investigation into Pace’s
mental health was reasonable. Trial counsel interviewed Pace
along with his family, friends, and teachers, and questioned them
about Pace’s mental health. Trial counsel also sought Pace’s med-
ical and school records. After learning about Pace’s head injuries
and academic difficulties, trial counsel retained Dr. Herendeen to
screen Pace for intellectual disability and “organic brain damage.”
Investigator Leonard prepared Pace for the evaluation; told Dr.
Herendeen about Pace’s history of head injuries, severe headaches,
and poor academic performance; and gave Dr. Herendeen both the
memoranda she had prepared from her interviews of Pace and his
family and the social history chronology of Pace’s family that trial
counsel had prepared.
The state habeas court did not unreasonably apply clearly
established federal law in concluding that this investigation into
Pace’s mental health was sufficient. We’ve held as much when
faced with similar—or less extensive—mental health investiga-
tions. See, e.g., Gissendaner, 735 F.3d at 1331 (“The state habeas
court’s finding of no deficient performance was also reasonable
with respect to trial counsel’s mental health investigation, which
included obtaining [the petitioner’s] mental health records and
consulting with [a mental health expert].”); Reed v. Sec’y, Fla.
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16-10868 Opinion of the Court 69
Dep’t of Corr., 593 F.3d 1217, 1241 (11th Cir. 2010) (concluding that
the state habeas court reasonably found no deficient performance
where trial counsel “obtained considerable potential mitigation ev-
idence,” “had a thorough [mental health] evaluation of [the peti-
tioner] conducted,” and gave the mental health expert “a signifi-
cant quantity of hospital and medical records”); Callahan v. Camp-
bell, 427 F.3d 897, 934 (11th Cir. 2005) (explaining that, when a de-
fendant “does not display strong evidence of mental problems,”
trial counsel is not even “required to seek an independent [mental
health] evaluation” (quoting Holladay v. Haley, 209 F.3d 1243,
1250 (11th Cir. 2000))).
Against this, Pace argues that trial counsel unreasonably
ended their investigation into his mental health when they did. Dr.
Herendeen’s evaluation showed that Pace had “borderline intelli-
gence and organic brain damage,” that his “paranoia scale” was
“significant[ly] elevat[ed],” that his mania scale was “markedly ele-
vated” with “feelings of grandiosity which could reach the level of
delusional belief,” that his schizophrenia scale was “somewhat ele-
vated,” but that Pace’s IQ score wasn’t “promising” for a mental
disability defense. Dr. Herendeen told Investigator Leonard that
Pace’s results “indicated further evaluation should be pursued.”
Pace argues that trial counsel were ineffective because they decided
not to conduct a further evaluation.
Pace is right that, “[i]n evaluating the reasonableness of
counsel’s investigation, courts must consider both the quantum of
evidence already known to counsel and whether that evidence
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70 Opinion of the Court 16-10868
would lead a reasonable attorney to investigate further.” Gissen-
daner, 735 F.3d at 1323 (quotation omitted). The question, in other
words, is “whether the known evidence would lead a reasonable
attorney to investigate further.” Powell v. Allen, 602 F.3d 1263,
1273 (11th Cir. 2010) (quoting Wiggins v. Smith, 539 U.S. 510, 527
(2003)). In assessing this question, however, courts must keep in
mind that “counsel’s duty to investigate does not necessarily re-
quire counsel to investigate every evidentiary lead.” Raheem v.
GDCP Warden, 995 F.3d 895, 909 (11th Cir. 2021) (quotation omit-
ted). We must also afford a “heavy measure of deference to coun-
sel’s judgments,” mindful of the “reality that lawyers do not enjoy
the benefit of endless time, energy or financial resources.” Wil-
liams, 185 F.3d at 1236–37 (quotation omitted).
We can’t say that the state habeas court’s conclusion that
trial counsel reasonably investigated Pace’s mental health was con-
trary to or an unreasonable application of clearly established fed-
eral law. First, the state habeas court was not unreasonable in con-
cluding that trial counsel already had enough information from
their investigation to make a reasonable call not to pursue a mental
health defense. While trial counsel “must gather enough
knowledge of the potential mitigation evidence to arrive at an in-
formed judgment in making that decision,” Jackson v. Herring, 42
F.3d 1350, 1367 (11th Cir. 1995) (quotation omitted), Pace “has not
. . . shown that there was more [that trial counsel] needed to know
from a further mental evaluation” before making an informed
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decision about their trial strategy. Wood v. Allen, 542 F.3d 1281,
1308 (11th Cir. 2008), aff’d, 558 U.S. 290 (2010).
After conducting interviews, obtaining Pace’s records, and
putting together a family history, trial counsel obtained a report
from Dr. Herendeen. That report explained that Pace had “bor-
derline intelligence and organic brain damage,” that his “paranoia
scale” was “significant[ly] elevat[ed],” that his mania scale was
“markedly elevated” with “feelings of grandiosity,” and that his
schizophrenia scale was “somewhat elevated.” Pace now presents
evidence—consistent with Dr. Herendeen’s findings—that two
doctors have since diagnosed him with schizophrenia. But Pace’s
trial counsel already had information that his schizophrenia scale
was elevated. They were already aware that Pace may have had
borderline intelligence and organic brain damage, and they knew
that there were signs of paranoia, grandiosity, and schizophrenia.
Pace’s trial counsel had this information and chose to pursue
a different strategy. Pace has failed to show that there was further
information that trial counsel failed to discover that rendered their
investigation unreasonable. See Haliburton v. Sec’y for Dep’t of
Corr., 342 F.3d 1233, 1244 (11th Cir. 2003) (“[W]e conclude that
[trial counsel] knew enough to make an informed, strategic deci-
sion not to present such mitigating evidence and that his strategic
decision was reasonable.”); see also Reed, 593 F.3d at 1242 (finding
that the state habeas court reasonably found no ineffective assis-
tance of counsel where the petitioner’s post-conviction “mitigation
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72 Opinion of the Court 16-10868
testimony largely just recounted, in somewhat more detailed form,
the factual background that [trial counsel had] already obtained”).
Second, even if the information Pace now points to was ma-
terially different from what trial counsel already knew, we can’t say
that the state habeas court was unreasonable in concluding that
trial counsel’s decision not to delve further into Pace’s mental
health was itself a reasonable strategic decision. “Strickland indi-
cates clearly that the ineffectiveness question turns on whether the
decision not to make a particular investigation was reasonable.”
Rogers, 13 F.3d at 387. And “[b]y its nature, ‘strategy’ can include
a decision not to investigate.” Id. Attorneys can also make “rea-
sonable decision[s] that make[] particular investigations unneces-
sary.” Strickland, 466 U.S. at 691.
Here, trial counsel explained that they “d[idn]’t expect
[Pace] to do well on any personality test” and knew that Pace’s per-
sonality test results could be used against him as “a sensationalizing
blunt instrument of the state.” So trial counsel took a “measured
approach to psychological testing” because it made “little sense”
for Dr. Herendeen to give Pace tests that they’d have to “rebut in
an attempt to rehabilitate [their] client.” As Mr. Mears explained,
he’d be “very reluctant to put a doctor up to say my client suffers
from an antisocial personality disorder” because the diagnosis
“tends to come across exactly as the name is.” We’ve said the same
thing. See Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1332 (11th
Cir. 2013) (explaining that “antisocial personality disorder . . . is a
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trait most jurors tend to look disfavorably upon, that is not mitigat-
ing but damaging”).
Beyond their strategic decision to avoid evidence that may
have been aggravating, not mitigating, Mr. Mears also explained
that trial counsel “were attempting to present a defense that was
consistent with [Pace’s] plea of not guilty.” Trial counsel were
wary of “do[ing] a 180-degree turn in front of the jury” and shifting
from their innocence defense. After completing a thorough inves-
tigation into the defenses they could raise at sentencing, trial coun-
sel still felt that this was the best strategy. We can’t say that the
state habeas court’s conclusion that trial counsel reasonably de-
cided not to obtain further mental health evaluations was contrary
to or an unreasonable application of clearly established federal law.
See Ward v. Hall, 592 F.3d 1144, 1170 (11th Cir. 2010) (“Creating
lingering or residual doubt over a defendant’s guilt is not only a
reasonable strategy, but is perhaps the most effective strategy to
employ at sentencing.” (cleaned up)).
Pace analogizes this case to Ferrell v. Hall, 640 F.3d 1199(11th Cir. 2011), where we concluded that the mental health inves-
tigation fell below Strickland’s standards. But there’s simply no
comparison. In Ferrell, the petitioner had “obvious mental disabil-
ities” and suffered a seizure “during the trial itself,” which “caus[ed]
him to fall onto the floor, shake[,] and speak gibberish.” Id. at 1228.
The petitioner’s first lawyer “strongly suspected that [the peti-
tioner] suffered from mental health problems that were ‘overt and
fairly apparent to anyone who cared to look closely.’” Id. at 1227–
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74 Opinion of the Court 16-10868
28. Trial counsel hired an investigator who also believed that the
petitioner “had some kind of mental disorder” partly because the
petitioner “had a strange demeanor at trial, laughing and smiling
inappropriately throughout the proceedings.” Id. at 1228. But de-
spite these “obvious indicators that should have led counsel to pur-
sue a more comprehensive mental health investigation,” trial coun-
sel: (1) did not “ask any of [the petitioner’s] family . . . about any
topics related to [the petitioner’s] mental health”; (2) did not ask
their mental health expert “to look for evidence of brain damage”
and instead limited their mental health expert’s inquiry to whether
the defendant was “mentally retarded” or “suffered from any prob-
lems that may have affected his . . . ability to understand his consti-
tutional rights”; and (3) “provided no material” to the mental
health expert “other than school records.” Id. at 1227–28.
Our case is different. Unlike trial counsel in Ferrell, there’s
no evidence that, during trial counsel’s investigation, Pace exhib-
ited mental health issues that were “overt and fairly apparent to
anyone who cared to look closely.” See id. at 1228. The opposite
is true: trial counsel’s interviews with Pace, his family, and his for-
mer girlfriend didn’t suggest that there were significant mental
health issues worth pursuing. Investigator Leonard, for example,
described Pace as “pleasant, cooperative[,] and attentive through-
out” her initial interview with him. Ms. Todd told trial counsel
that she dated Pace “during the time some of the[] killings oc-
curred” and that she “never saw any indication that anything was
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wrong.” And Pace’s brother Garry said that he had “never seen
any abnormal behavior in [Pace].”
Even in the face of little evidence of mental health issues,
Pace’s trial counsel did all of the things trial counsel didn’t do in
Ferrell. Unlike trial counsel in Ferrell, for example, Pace’s trial
counsel questioned Pace and his family members about his mental
health; asked Dr. Herendeen to evaluate Pace for brain damage;
and gave Dr. Herendeen information about Pace’s history of head
injuries, severe headaches, and poor academic performance, mem-
oranda from interviews of Pace and his family, and the 120-year
social history chronology of Pace’s family that trial counsel had pre-
pared. Ferrell doesn’t support Pace’s claim.
2. Trial counsel’s mitigation presentation was reasonable
The state habeas court determined that trial counsel “effec-
tively utilized the available information and resources and [were]
not unreasonable in choosing to present a reasonable doubt de-
fense during the guilt-innocence phase . . . [or] in maintaining a
consistent defense of residual doubt” during the sentencing phase.
The state habeas court’s determination was not unreasonable be-
cause “[i]t is especially difficult to succeed with an ineffective assis-
tance claim questioning the strategic decisions of trial counsel who
were informed of the available evidence.” Nance v. Warden, Ga.
Diagnostic Prison, 922 F.3d 1298, 1302 (11th Cir. 2019). Trial coun-
sel’s thorough investigation of Pace’s background and mental
health means that their strategic choice to pursue a residual doubt
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76 Opinion of the Court 16-10868
defense is “virtually unchallengeable.” See id. (quoting Strickland,
466 U.S. at 690).
A. Residual doubt
Pace’s trial counsel made a strategic decision to present a
“residual doubt” defense at sentencing and to show that Pace’s fam-
ily was “pleading for mercy.” As Mr. Mears explained, trial counsel
“were attempting to present a defense that was consistent with
[Pace’s] plea of not guilty” and Pace’s “consistent . . . assertions that
he was innocent of the charges against him.” Trial counsel recog-
nized that “there was nothing that [they] had in the way of a tradi-
tional defense other than he didn’t do it, and sometimes that’s the
only defense you have.” Because Pace denied his guilt, residual
doubt was a reasonable strategy. See Parker v. Sec’y for Dep’t of
Corr., 331 F.3d 764, 787–88 (11th Cir. 2003); Hannon v. Sec’y, Dep’t
of Corr., 562 F.3d 1146, 1154 (11th Cir. 2009) (“We have noted in
our circuit that this lingering doubt or residual doubt theory is very
effective in some cases.”).
Mr. Mears recognized that he’d lose credibility with the jury
if he wasn’t “very careful during the sentencing phase not to do a
180-degree turn” after maintaining Pace’s innocence during the
guilt phase. As he explained:
[J]urors resent the defense attorneys who for two or
three weeks say my client is innocent, he didn’t do it,
you don’t have enough evidence, and then you come
back in the sentencing phase, well, he did it so let’s be
merciful.
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You have to be consistent in the defense that you raise
at guilt/innocence with the way you present mitiga-
tion. One of the ways that you do that in a not guilty,
my client didn’t do it, is to continue to argue residual
doubt as a possible mitigating factor . . . .
And I think that was part of what we were doing in
[Pace’s] case was to try to continue the residual
doubt, along with the other mitigating evidence that
we attempted to present.
Trial counsel could’ve undermined their efforts to get Pace
a life sentence if they pulled “a 180-degree turn” at sentencing by
blaming his crimes on his mental health or troubled background.
See Franks v. GDCP Warden, 975 F.3d 1165, 1184 (11th Cir. 2020)
(“[E]vidence of [the petitioner’s] drug use, difficult childhood[,] and
learning disability, in addition to being weak mitigating evidence,
may have eroded any residual doubt if trial counsel had focused on
those issues.” (quotation omitted)); Brooks v. Comm’r, Ala. Dep’t
of Corr., 719 F.3d 1292, 1304 (11th Cir. 2013) (“While an intoxica-
tion-mitigation strategy attempts to lessen the defendant’s culpa-
bility for an act he concededly committed, a residual-doubt strategy
depends on the defendant maintaining his innocence. That [peti-
tioner’s] intoxication evidence could have blunted the force of his
residual-doubt argument is merely another way in which the new
mitigating evidence could have hurt [the petitioner] as easily as it
could have helped him.”).
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78 Opinion of the Court 16-10868
Pace argues that trial counsel’s decision to pursue a residual
doubt mitigation defense at sentencing was “[n]ot a strategy but a
post hoc justification for failing to present mitigating evidence” be-
cause trial counsel were “not aware of the evidence that might
have been available upon further investigation, so they could not
make a reasonable strategic choice not to present it.” But Mr.
Mears testified that trial counsel’s decision to present a residual
doubt defense was a strategic one, and, for the reasons we’ve al-
ready explained, trial counsel’s investigation of Pace’s background
and mental health was sufficient to allow them to make an in-
formed decision to present a residual doubt defense during the sen-
tencing phase. Trial counsel hired an investigator; talked with
Pace, his family, his friends, his neighbors, and his teachers; got his
school and medical records; put together a 120-year family social
history; shared all of this information with a mental health expert;
and received a comprehensive report from the expert. Trial coun-
sel, in other words, “investigated different lines of mitigation and
then made a strategic choice to employ residual doubt and family
plea for mercy approaches in the penalty phase.” DeYoung, 609
F.3d at 1286. The state habeas court did not unreasonably conclude
that, in doing so, trial counsel’s “choices, and their investigation,
fell well within ‘the wide range of professionally competent assis-
tance.’” Id. (quoting Strickland, 466 U.S. at 690).
Pace asserts that trial counsel’s residual doubt strategy was
unreasonable considering the “overwhelming evidence of guilt” in
the form of DNA evidence. But “overwhelming evidence” of a
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“brutal and aggravated” crime doesn’t make a residual doubt de-
fense an unreasonable strategy. See Franks, 975 F.3d at 1177 (not-
ing that “the brutal and aggravated nature of [the petitioner’s]
crime . . . could [have led] a reasonable attorney to conclude that
without residual doubt, a life sentence would [have] be[en] difficult
to sustain,” even where there was “overwhelming evidence of [the
petitioner’s] guilt”); Stewart, 877 F.2d at 855–56 (concluding that
trial counsel was not ineffective for adopting a “lingering doubt”
strategy where “[t]he physical evidence available to the state . . .
was overwhelming” and the petitioner “confessed to police”). And
it was not uncommon at the time of Pace’s trial for defendants to
challenge the reliability of the procedures used by the government
to match DNA. See, e.g., United States v. Bonds, 12 F.3d 540, 558
(6th Cir. 1993) (addressing the defendants’ challenge to the scien-
tific validity of forensic DNA evidence). Indeed, Pace continued to
challenge the reliability of the state’s DNA evidence in his state ha-
beas petition. Pace’s “[t]rial counsel cannot be faulted for attempt-
ing to make the best of a bad situation.” See Stewart, 877 F.2d at
856.
B. Presentation of witnesses
The state habeas court determined that trial counsel’s miti-
gation presentation of a residual doubt defense was reasonable be-
cause, “[b]ased on extensive research, [trial] counsel called [eleven]
mitigation witnesses who testified about the good character of
Pace, his quiet nature, and their belief that he was innocent” and
“[trial] [c]ounsel spoke to each witness prior to taking the stand to
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80 Opinion of the Court 16-10868
explain the purpose of mitigation testimony.” The state habeas
court’s determination was not unreasonable.
Before trial, trial counsel met with Pace’s family, Ms.
Booker, Ms. Turner, and Ms. Todd to discuss their testimony. Dur-
ing one meeting with Pace’s mother, sister Lisa, brother Garry, and
sister-in-law Penny, Ms. Mau “described the scope and purpose of
mitigation evidence in a bifurcated trial.” Trial counsel also met
with Pace’s siblings again a few weeks before trial to discuss their
testimony.
At the sentencing phase, the witnesses testified about Pace’s
good character and their disbelief that Pace was capable of commit-
ting the crimes and asked the jury to have mercy on Pace. Ms.
Booker told the jury that Pace had “a real big impact” in motivating
her grandson to stay in school and out of jail, and she and Ms.
Turner testified that Pace was “very loving,” “a good kid,” and an
“easy” and “caring” person who wouldn’t harm anyone. Pace’s
brother Darrell told the jury about how Pace saved him from
drowning. Pace’s brother Gregory testified that Pace “g[a]ve re-
spect to” and “care[d] for” the elderly by running errands for them
and keeping them company. And Ms. Todd told the jury about
how Pace encouraged her to continue her education despite his ac-
ademic difficulties and described him as a “very quiet,” “very kind,
very supportive, very loving,” and polite person who would give
up his seat for someone else on the bus. “All of this good character
evidence supported residual doubt: [Pace] had never been known
to be violent and each account of his decency was designed to sow
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16-10868 Opinion of the Court 81
more doubt in the jurors’ minds” that Pace was capable of murder.
See Franks, 975 F.3d at 1174.
Pace contends that it was unreasonable for his trial counsel
to “focus upon residual doubt at sentencing” to the exclusion of
presenting Dr. Herendeen’s findings about his organic brain dam-
age and borderline intellectual functioning and evidence of his im-
poverished and neglected upbringing. According to Pace, “[n]one
of the information regarding [his] mental health or his background
would have been inconsistent with a penalty phase strategy of re-
sidual doubt.” But trial counsel presented evidence of Pace’s trou-
bled upbringing and borderline intellectual functioning: Garry tes-
tified that he and Pace lived in housing projects, moved around a
lot, and grew up poor, Mr. Beasley testified that the Vine City area
was a “very poor” community, and Ms. Todd told the jury that
Pace dropped out of school and struggled to read. Indeed, in re-
sponding to Pace’s trial counsel’s objection to his use of the cartoon
in his closing argument, the prosecutor argued that it would be
used to rebut Pace’s mitigation defense that he was “born in the
ghetto or the poor side of town and growing up under those con-
ditions.”
The state habeas court did not unreasonably determine that
trial counsel made a reasonable strategic decision not to place more
focus on Pace’s background and mental health at the risk of losing
credibility with the jury. The decision not to call Dr. Herendeen at
sentencing because it would be an abrupt “180-degree turn in front
of the jury” “is the epitome of a strategic decision” that we will not
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82 Opinion of the Court 16-10868
“second guess.” See Waters v. Thomas, 46 F.3d 1506, 1512 (11th
Cir. 1995) (en banc) (“Which witnesses, if any, to call, and when to
call them, is the epitome of a strategic decision, and it is one that
we will seldom, if ever, second guess.”); DeYoung, 609 F.3d at 1289(rejecting the petitioner’s “improper attempt to second-guess a rea-
sonable strategic choice of trial counsel”). And trial counsel could
have reasonably decided to limit their presentation of mitigating
evidence about Pace’s background based on their concern that the
jury would share Pace’s brother Garry’s belief that “[j]ust because
you’re raised in that neighborhood doesn’t mean you’ll be a hood-
lum.” See Blankenship v. Hall, 542 F.3d 1253, 1280 (11th Cir. 2008)
(“In this case, counsel was faced with a brutal rape and murder of
an elderly woman. In light of the gruesome facts, . . . reasonably
competent counsel could have decided the best chance for sparing
[the petitioner’s] life was to convince the jury some residual doubt
existed. Counsel could have concluded the inclusion of extensive
mitigating evidence addressing [the petitioner’s] life history might
cloud the jury from focusing on the question of residual doubt, or
would simply have been unpersuasive in light of the gruesome na-
ture of the crime.”).
Pace also argues that his trial counsel’s sentencing phase
presentation of witnesses was “affirmatively aggravating” for two
reasons. First, Pace argues that Ms. Booker’s and Ms. Turner’s de-
scriptions of Pace as a child and teenager were not mitigating be-
cause both women conceded that they only knew Pace during his
childhood and teenage years. Second, his family members’
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16-10868 Opinion of the Court 83
testimony was aggravating, Pace says, because they testified that
he was “normal,” “could point to almost no examples of good char-
acter to bolster their beliefs that [Pace] was innocent,” and
“blind[ly] insiste[d] that [Pace] had been framed.”
Pace’s focus on Ms. Booker’s and Ms. Turner’s testimony ig-
nores that trial counsel also called Ms. Todd, who Pace concedes
“gave the most mitigating evidence” by testifying about Pace’s sup-
port as she pursued a college education despite his difficulty read-
ing. But even putting Ms. Todd’s testimony aside, we can’t say that
the state habeas court unreasonably determined that trial counsel
performed reasonably by calling Ms. Booker and Ms. Turner—two
longtime friends of Pace’s family—to “relay[] anecdotes of [Pace’s]
helpfulness” and to testify about “his quiet nature, and their belief
that he was innocent.” And contrary to Pace’s assertion that Ms.
Booker didn’t testify about more recent examples of Pace’s good
character, she testified about Pace’s helpfulness during his adult-
hood, when he had a “real big impact” in motivating her grandson
to stay in school by telling her grandson about life in jail.
The same is true of Pace’s family members’ testimony.
Pace’s siblings described him as an “easy-going, quiet person” who
“g[a]ve respect to his elders,” helped elderly neighbors, and who
had even saved his brother from drowning. And his family insisted
that Pace’s crimes went against his character. This presentation of
“good character evidence supported residual doubt.” See Franks,
975 F.3d at 1174.
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84 Opinion of the Court 16-10868
Although Pace’s family members’ testimony wasn’t as help-
ful as trial counsel “were planning on,” we are not permitted “to
second-guess an attorney with the benefit of our hindsight.” Jen-
kins, 963 F.3d at 1270. While trial counsel knew from their inter-
views that Pace’s family members “had a tendency to be combative
and having them testify would entail some risk,” trial counsel also
thought they had the potential to “be very good mitigation wit-
nesses.” Fairminded jurists could agree with the Georgia Supreme
Court that trial counsel reasonably decided that the potential ben-
efit of Pace’s family members’ testimony outweighed the risks. See
Waters, 46 F.3d at 1512.
C. Closing argument
The state habeas court determined that Mr. Mears’s closing
argument “was adequate” because it “was consistent with Pace’s
theory of defense.” Pace argues that Mr. Mears’s closing argument
was constitutionally deficient because Mr. Mears “disavowed” any
attempt to present mitigating evidence of Pace’s troubled back-
ground, “essentially threw away any residual doubt argument” by
asking the jury to understand that Pace’s family members weren’t
arguing with the verdict by insisting on Pace’s innocence, and
“browbeat[] jurors about their value systems[] and impl[ied] that
they [were] immoral if they g[a]ve a death sentence.”
Pace’s criticisms of Mr. Mears’s closing argument are mis-
placed. Pace argues that Mr. Mears “disavowed” mitigating evi-
dence of Pace’s background when he told the jury that he did not
“try to insult [their] intelligence by putting up witnesses to say that
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16-10868 Opinion of the Court 85
[Pace] had a deprived family” because “it would have been hypo-
critical for us to argue as we did and strongly . . . that the evidence
didn’t prove him . . . guilty” and then “come and say, well, you
found him [guilty]” but don’t “sentence him to death because he
was poor.” But Mr. Mears’s closing argument was consistent with
his belief that he would’ve undermined his efforts to get Pace a life
sentence by making “a 180-degree turn” at sentencing by blaming
Pace’s crimes on his troubled background. See Franks, 975 F.3d at
1184.
Nor, as Pace contends, did Mr. Mears “essentially thr[o]w
away any residual doubt argument” by asking the jury to under-
stand Pace’s family members’ disagreement with the jury’s verdict.
Mr. Mears told the jury that he “d[id]n’t expect” them to impose a
death sentence, reminded the jury that trial counsel had “strongly”
argued “that the evidence didn’t prove [Pace] . . . guilty,” and ex-
plained that trial counsel had “give[n] you the truth about as best
we could as to who [Pace] was and what his family was like.” Mr.
Mears never abandoned the residual doubt defense. See Jenkins,
963 F.3d at 1269 (“[A] strategy of ‘focusing on obtaining an acquittal
and then, at sentencing, on lingering doubt’ is reasonable, even if
counsel does not use the words ‘lingering doubt’ or ‘residual
doubt.’” (quoting Chandler, 218 F.3d at 1320 & n.6)). And trial
counsel’s challenges to the reliability of the state’s evidence during
the guilt phase from only a few days before the sentencing phase
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86 Opinion of the Court 16-10868
closing arguments “would have been fresh on the minds of the
jury.” 3 Id.Pace’s reliance on Ferrell and the dissent in Jefferson v. Hall,
570 F.3d 1283 (11th Cir. 2009), vacated by Jefferson v. Upton, 560
U.S. 284 (2010), misses the mark. In Ferrell, we concluded that de-
fense counsel’s residual doubt defense “was powerfully undercut
by the very nature of the closing argument defense counsel made
at the penalty phase.” 640 F.3d at 1231. We explained that defense
counsel’s statements in closing argument were not “consonant
with a residual doubt claim” because defense counsel told the jury
that: (1) the defendant’s testimony about what happened was “‘ab-
surd,’ ‘hard to swallow,’ ‘hard to believe,’ ‘wild,’ and ‘ludicrous’”;
(2) the jury had “unquestionably” already found one aggravating
circumstance and could therefore “legitimately sentence [the de-
fendant] to death”; (3) he “had the ‘unpleasant duty’ of arguing that
two deaths ‘by execution’ did not warrant the death penalty”;
(4) “all the circumstances pointed toward [the defendant’s] guilt”;
and (5) “[n]o rational jury would have found otherwise in the guilt-
innocence phase because of the ludicrousness of [the defendant’s]
story” and noted that “[y]ou could try this case a thousand times
before a thousand juries and you’d get the same result; we’ve all
known that from day one.” Id. at 1207, 1231–32.
3
At the beginning of the sentencing phase, the state trial court instructed the
jury that it was “authorized to consider . . . [what it] already heard in the guilt
or innocence stage.”
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And in Jefferson, we reviewed the petitioner’s habeas peti-
tion de novo because the habeas petition was filed before the effec-
tive date of AEDPA. 570 F.3d at 1300. The court concluded that
trial counsel performed adequately during the sentencing phase by
presenting a residual doubt defense because, among other things,
trial counsel “reference[d]” their “innocence defense at the guilt
phase” by “emphasizing during closing argument that there were
no eye witnesses to the crime, no guilty plea, and ‘no evidence of
any consciousness of guilt.’” Id. at 1305–07. The dissent, in con-
trast, believed that defense counsel’s closing argument was “incon-
sistent with a residual doubt strategy.” Id. at 1318 (Ed Carnes, J.,
dissenting). The dissent explained that trial counsel’s closing argu-
ment “concede[d] that [the defendant] killed the victim” and “[a]
residual doubt strategy that concedes the defendant murdered the
defenseless victim is not a strategy at all.” Id. at 1318–19.
Here, unlike the trial counsel in Ferrell, Mr. Mears didn’t
concede Pace’s guilt but instead told the jury that he did not “ex-
pect” them to sentence Pace to death, reminded the jury that trial
counsel had “strongly” argued that Pace was innocent during the
guilt phase, and explained that trial counsel had “give[n] you the
truth about as best we could as to who [Pace] was and what his
family was like” during the sentencing phase. Trial counsel never
suggested that “the circumstances pointed toward [Pace’s] guilt” or
that Pace’s story was “ludicrous[].” Ferrell, 640 F.3d at 1207, 1231–
32. Instead, like trial counsel in Jefferson, Mr. Mears’s closing ar-
gument “reference[d],” see 570 F.3d at 1305, Pace’s “strong[]”
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88 Opinion of the Court 16-10868
argument in the guilt phase “that the evidence didn’t prove him . . .
guilty.” Mr. Mears did not, as the dissent in Jefferson concluded
trial counsel had done, “concede[] that [Pace] had committed the
murder.” See id. at 1319 (Ed Carnes, J., dissenting). The state ha-
beas court’s determination that Mr. Mears’s closing was consistent
with a residual doubt defense was not unreasonable—particularly
when viewed through AEDPA’s “doubly” deferential lens. See Jen-
kins, 963 F.3d at 1271.
Finally, Mr. Mears’s effort to ask the jury for their under-
standing of Pace’s family members’ argumentative demeanor
wasn’t an unreasonable strategic decision. After Pace’s family
members’ “belligerent,” “argumentative,” and “unsympathetic”
testimony proved not to be what trial counsel were counting on,
we can’t say that the Georgia Supreme Court unreasonably con-
cluded that Mr. Mears’s attempt to reestablish credibility with the
jury during his closing argument was reasonable. See Johnson v.
Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“This [c]ircuit re-
views a lawyer’s conduct under the ‘performance’ prong with con-
siderable deference, giving lawyers the benefit of the doubt for
‘heat of the battle’ tactical decisions.”); see also Schlager v. Wash-
ington, 113 F.3d 763, 769 (7th Cir. 1997) (“[S]ometimes trials take
unpredictable twists. To meet those twists, a plan at the start of a
trial sometimes must be adjusted to meet changed circumstances.
That’s what happened here, and we can’t say [trial counsel] made
the wrong call . . . .”).
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Pace’s Claim That the Prosecutor’s Sentencing Phase Closing Ar-
gument Violated His Right to a Reliable Sentencing
In affirming Pace’s death sentences on direct appeal, the
Georgia Supreme Court concluded:
Although the prosecutor made several improper
comments during closing argument in both phases of
the trial, we conclude, given the overwhelming evi-
dence of Pace’s guilt and the enormous amount of ev-
idence in aggravation, that the death sentences in his
case were not imposed under the influence of passion,
prejudice, or any other arbitrary factor.
Pace, 524 S.E.2d at 507. Pace contends that the prosecutor’s “im-
proper [closing] argument . . . rendered the sentencing phase fun-
damentally unfair.” He argues that when measured against the Su-
preme Court’s decisions in Darden, Donnelly v. DeChristoforo,
416 U.S. 637 (1974), and Berger v. United States, 295 U.S. 78 (1935),
the Georgia Supreme Court unreasonably concluded that the pros-
ecutor’s closing argument did not amount to a violation of due pro-
cess.
The prosecutor’s closing argument “deserves the condem-
nation it has received.” See Darden, 477 U.S. at 179; Pace, 524
S.E.2d at 505–07 (describing the prosecutor’s closing argument as
“improper,” “gratuitous,” and “unprofessional”). But the Supreme
Court has instructed that it’s “not enough that the prosecutors’ re-
marks were undesirable or even universally condemned.” See
Darden, 477 U.S. at 181 (quotation omitted).
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90 Opinion of the Court 16-10868
For two reasons, none of the cases Pace has pointed to—
Darden, Donnelly, and Berger—clearly establish that his trial fell
short of what due process requires. First, “it is not an unreasonable
application of clearly established [f]ederal law for a state court to
decline to apply a specific legal rule that has not been squarely es-
tablished by [the Supreme Court].” Reese, 675 F.3d at 1288 (quot-
ing Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). “The Su-
preme Court has reiterated, time and again, that, in the absence of
a clear answer—that is, a holding by the Supreme Court—about an
issue of federal law, we cannot say that a decision of a state court
about that unsettled issue was an unreasonable application of
clearly established federal law.” Id. 4
As in Reese, there’s no Supreme Court holding that placed
the Georgia Supreme Court’s ruling beyond fairminded debate.
There, we held that Darden and Donnelly did not clearly establish
that a prosecutor’s closing argument rendered a trial unfair because
“[o]nly a holding of the Supreme Court can clearly establish federal
law” and in both cases the Supreme Court “held that the prosecu-
tor’s argument . . . did not deprive the petitioner of a fair trial.” Id.
at 1289 (emphasis added). In Darden, the Court held that a prose-
cutor’s closing “did not deprive [the] petitioner of a fair trial” even
4
Pace “would have us consider our own precedents, and those of other [c]ir-
cuits, in our analysis. [But] [s]ection 2254(d) forbids this practice.” See Lucas
v. Warden, Ga. Diagnostic & Classification Prison, 771 F.3d 785, 807 n.5 (11th
Cir. 2014).
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16-10868 Opinion of the Court 91
though the prosecutor called the petitioner a “vicious animal,” said
he should be on a “leash,” and told the jury he “wish[ed]” someone
had “blown [the petitioner’s] head off.” Darden, 477 U.S. at 180
n.12, 181. And, in Donnelly, the Court found no “denial of due
process” where a prosecutor told the jury during closing that he
“sincerely believe[d] that there [was] no doubt” about the peti-
tioner’s guilt and that he suspected that the petitioner stood trial
not because he was innocent but because he “hope[d] that you find
him guilty of something a little less than first-degree murder.”
Donnelly, 416 U.S. at 640 & n.6, 643. Our holding in Reese controls
here: because neither Darden nor Donnelly held that a prosecu-
tor’s closing argument violated due process, we can’t say that the
state court’s ruling here “was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Reese, 675
F.3d at 1287, 1290 (quotation omitted) (finding no unreasonable ap-
plication of clearly established law where the prosecutor “com-
pared” the defendant to a “vicious dog” and “told the jury” that the
victim’s experience was “every woman’s wors[t] nightmare”).
The Supreme Court’s ruling in Berger doesn’t help either.
There, the Court did not hold that a prosecutor’s closing argument
deprived the petitioner of a fair trial. Rather, the Court held that
the “cumulative effect” on the jury of the prosecutor’s “pro-
nounced and persistent” misconduct at trial—including “misstating
the facts in his cross-examination of witnesses,” “putting into the
mouths of . . . witnesses things which they had not said,”
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92 Opinion of the Court 16-10868
“suggesting by his questions that statements had been made to him
personally out of court, in respect of which no proof was offered,”
“pretending to understand that a witness had said something which
he had not said and persistently cross-examining the witness upon
that basis,” “assuming prejudicial facts not in evidence,” “bullying
and arguing with witnesses,” “conducting himself in a thoroughly
and indecorous and improper manner,” and making “improper in-
sinuations and assertions calculated to mislead the jury”—was so
prejudicial as to warrant a new trial. Berger, 295 U.S. at 84–85, 89.
In other words, Berger didn’t hold that the prosecutor’s closing ar-
gument alone violated due process, so the Georgia Supreme Court
did not unreasonably apply that decision to the prosecutor’s closing
argument in this case.
In short, “the Supreme Court has never held that a prosecu-
tor’s closing arguments,” in a vacuum, “were so unfair as to violate
the right of a defendant to due process.” Reese, 675 F.3d at 1287.
So we can’t say that the Georgia Supreme Court unreasonably de-
termined that the prosecutor’s closing argument didn’t render
Pace’s sentencing “so unfair as to violate [his right] to due process.”
Id.; see also Greene v. Upton, 644 F.3d 1145, 1158–59 (11th Cir.
2011) (concluding that the Georgia Supreme Court did not unrea-
sonably apply Darden in affirming the defendant’s conviction and
death sentence where the prosecutor’s closing arguments included
“comments that placed jurors in a victim’s position” and “refer-
ences to the Bible” because the petitioner “fail[ed] to cite any
clearly established precedent from the Supreme Court of the
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16-10868 Opinion of the Court 93
United States that the Supreme Court of Georgia contravened or
applied unreasonably”). “[W]e cannot say that [the Georgia Su-
preme Court’s decision] about [this] unsettled issue was an unrea-
sonable application of clearly established federal law.” See Reese,
675 F.3d at 1288.
Second, even if Darden could lead to a violation of clearly
established law, the Georgia Supreme Court did not unreasonably
determine that the prosecutor’s closing argument did not render
Pace’s trial unfair. We consider the prosecution’s closing argument
“in the context of the entire proceeding, including . . . the weight
of aggravating and mitigating factors.” See Land v. Allen, 573 F.3d
1211, 1219–20 (11th Cir. 2009). The jury heard and saw evidence
that Pace brutally raped, sodomized, and strangled to death Ms.
McAfee, an eighty-six-year-old woman who Pace had known
“since he was a baby.” The jury heard and saw evidence that Pace
brutally raped, sodomized, and strangled to death Ms. McClendon,
a seventy-eight-year-old woman. The jury heard and saw evidence
that Pace brutally raped, sodomized, and strangled to death Ms.
Martin, a seventy-nine-year-old woman. The jury heard and saw
evidence that Pace brutally raped and strangled Ms. Britt and sod-
omized her dead body. And the jury learned about Pace’s attempts
to inflict the same horrible fate on Ms. Grogan and Ms. Sublett, two
elderly women who escaped only because they fought back. Based
on this evidence, the jury found nineteen statutory aggravating cir-
cumstances.
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94 Opinion of the Court 16-10868
As the Georgia Supreme Court found, the amount of evi-
dence in aggravation was “enormous.” See Pace, 524 S.E.2d at 507;
cf. Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644, 656 (11th Cir.
2014) (describing a murder with seven aggravating circumstances
as “unquestionably one of the most aggravated murders—not just
as compared to all other murders, but as compared to all death pen-
alty cases” (quotation omitted)). The Georgia Supreme Court’s
due-process determination wasn’t beyond fairminded disagree-
ment given the number of aggravating circumstances that grossly
outweighed the mitigating circumstances and the “heinous nature
of the offense[s].” See Ray v. Ala. Dep’t of Corr., 809 F.3d 1202,
1210 (11th Cir. 2016) (“We find ourselves in a situation that war-
rants deference to the state court’s determination. Though the ex-
tent of mitigating evidence presented during the post-conviction
proceedings was both profound and compelling, so too was the hei-
nous nature of the offense . . . .”); Grayson v. Thompson, 257 F.3d
1194, 1230 (11th Cir. 2001) (“[W]e are confident that [the peti-
tioner’s] sentence would have been the same despite the presenta-
tion of mitigating circumstances in light of the brutality of the
crime against an elderly widow who had been nothing but nice to
him.”).
Pace argues that we shouldn’t apply AEDPA deference to
the Georgia Supreme Court’s conclusion that the closing statement
did not violate his due process rights because it “failed to apply
clearly established federal law,” emphasizing that the Georgia Su-
preme Court only cited Donnelly “a single time” and didn’t
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16-10868 Opinion of the Court 95
“mention[]” Darden or Berger in its opinion. But whether a state
court “failed to apply” or “mention” established Supreme Court
law is not the standard under section 2254. See Early v. Packer, 537
U.S. 3, 8, 10 (2002). Instead, section 2254(d)(1) imposes the “more
demanding requirement” that the state court’s decision be “‘con-
trary to’ clearly established Supreme Court law” before we may
grant habeas relief. See id. at 7–8, 10. Section 2254(d)(1) does not
“require citation of [the Supreme Court’s] cases—indeed, it does
not even require awareness of [the Supreme Court’s] cases, so long
as neither the reasoning nor the result of the state-court decision
contradicts them.” Id. at 8; see Greene, 644 F.3d at 1157 (“[A] de-
cision receives AEDPA deference even if the state court fails to
cite—or is not even aware of—relevant Supreme Court prece-
dent.” (quotation omitted)).
Alternatively (and somewhat inconsistently), Pace argues
that the Georgia Supreme Court “unreasonably applied . . .
Darden.” More specifically, he contends that the Georgia Supreme
Court “failed to analyze the cumulative effect” of the prosecutor’s
improper comments. But, even if Darden could clearly establish
federal law on this point, the Georgia Supreme Court did analyze
the cumulative effect of the prosecutor’s statements. After individ-
ually considering each of the challenged statements from closing
argument, the Georgia Supreme Court considered them collec-
tively, noting that, “[a]lthough the prosecutor made several im-
proper comments during closing argument . . . , we conclude,
given . . . the enormous amount of evidence in aggravation, that
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96 Opinion of the Court 16-10868
the death sentences in his case were not imposed under the influ-
ence of passion, prejudice, or any other arbitrary factor.” Pace, 524
S.E.2d at 507 (emphasis added). The Georgia Supreme Court, in
other words, did consider the cumulative effect of the prosecutor’s
“several” statements.
Even if it weren’t obvious from the face of its opinion that
the Georgia Supreme Court considered the cumulative effect of the
prosecutor’s statements, Pace raised a claim on direct appeal about
the cumulative effect of the prosecutor’s improper comments, and
the Georgia Supreme Court rejected it. See Pace, 524 S.E.2d at 507.
“Although [Pace] contends that the [Georgia Supreme Court]
failed even to consider his claim of cumulative prejudicial effect,
we must presume otherwise.” See Greene, 644 F.3d at 1159–60.
And Pace “fails to explain how the decision of the [Georgia Su-
preme Court] about no cumulative error is contrary to, or an un-
reasonable application of, clearly established federal law.” See id.
at 1160.
Pace’s Claim That Trial Counsel Were Ineffective in Failing to
Object to Improper Prosecutorial Comments
The Georgia Supreme Court summarily denied Pace’s claim
that trial counsel were ineffective in failing to object to the prose-
cutor’s improper comments during closing argument. We there-
fore “‘look through’ the unexplained decision to the last related
state-court decision that does provide a relevant rationale” and
“then presume that the unexplained decision adopted the same rea-
soning.” See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The
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16-10868 Opinion of the Court 97
state habeas court rejected Pace’s claim that trial counsel were in-
effective for failing to object to the prosecutor’s improper closing
arguments because it found that Pace failed to establish prejudice.
Thus, we presume that the Georgia Supreme Court adopted the
state habeas court’s prejudice determination. See id.Pace argues that “[t]rial counsel provided ineffective assis-
tance by neglecting to object to the prosecution’s [g]olden [r]ule
arguments and religious references abjuring mercy.” He claims
that “the trial court would have granted a mistrial or, alternatively,
the Georgia Supreme Court would have overturned [Pace’s] con-
victions and sentences on direct appeal” if trial counsel had timely
objected because the lack of an objection meant that “the Georgia
Supreme Court applied a more rigorous standard when reviewing
these claims.” But this argument—that Pace’s trial or appeal
would’ve come out differently had his trial counsel objected—is
unavailing.
First, Pace has not shown a reasonable probability that the
state trial court would have granted a mistrial had trial counsel
made a timely objection. Under Georgia law, “[w]hether to grant
a mistrial for improper argument is a matter largely within the trial
court’s discretion. The trial court has other options, including the
rebuke of counsel and providing curative instructions.” Lloyd v.
State, 625 S.E.2d 771, 776 (Ga. 2006). There is no indication in the
record that the trial court would have exercised its discretion to
grant a mistrial had trial counsel objected to the prosecutor’s
golden rule arguments and religious references. Rather, every
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98 Opinion of the Court 16-10868
indication is to the contrary. When trial counsel objected to other
parts of the prosecutor’s closing argument, the state trial court ei-
ther overruled the objection or gave curative instructions.
Second, whether the result of Pace’s direct appeal would
have been different does not affect our analysis under Strickland.
Strickland’s prejudice prong requires a petitioner to show “a rea-
sonable probability that the outcome in his sentencing would have
been different but for the failure to object.” Thomas v. Att’y Gen.,
992 F.3d 1162, 1192 (11th Cir. 2021) (emphasis added); see Purvis v.
Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (“The Supreme Court in
Strickland told us that when the claimed error of counsel occurred
at the guilt stage of a trial (instead of on appeal) we are to gauge
prejudice against the outcome of the trial: whether there is a rea-
sonable probability of a different result at trial, not on appeal.”);
United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (“[C]oun-
sel’s failure to object certainly diminished [the petitioner’s] possi-
bility of reversal on direct appeal. However, the focus here is
whether a reasonable probability exists that counsel’s deficient per-
formance affected the outcome and denied [the petitioner] a fair
trial.”). And Pace hasn’t shown that. The state habeas court did
not unreasonably apply Strickland in finding no prejudice.
Pace’s Claim That Admission of Evidence of the Burglary of
Coretta Scott King Violated His Right to a Reliable Sentencing
The state habeas court denied Pace’s claim that the admis-
sion of evidence that he burglarized Coretta Scott King violated his
right to a reliable sentencing, concluding that the claim was “barred
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16-10868 Opinion of the Court 99
by res judicata.” The district court concluded that this claim was
procedurally defaulted because Pace didn’t raise it on direct appeal.
We agree with the district court that Pace’s claim is procedurally
defaulted because he did not present it to the Georgia Supreme
Court on direct appeal.
“A claim is procedurally defaulted for the purposes of federal
habeas review where ‘the petitioner failed to exhaust state reme-
dies and the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred.’” Henderson v.
Campbell, 353 F.3d 880, 898–99 (11th Cir. 2003) (quoting Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991)); see 28 U.S.C.
§ 2254(b)(1)(A) (“An application for a writ of habeas corpus on be-
half of a person in custody pursuant to the judgment of a [s]tate
court shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the [s]tate[.]”).
To satisfy the exhaustion requirement, the federal claim
“must be fairly presented to the state courts.” Picard v. Connor,
404 U.S. 270, 275 (1971). To be “fairly presented,” a petitioner must
“present the state courts with the same claim he urges upon the
federal courts.” Id. at 276. The petitioner must present his claims
to the state courts “such that the reasonable reader would under-
stand each claim’s particular legal basis and specific factual founda-
tion.” Kelly v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344–45
(11th Cir. 2004). In other words, the petitioner must “afford the
state courts a meaningful opportunity to consider allegations of
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100 Opinion of the Court 16-10868
legal error without interference from the federal judiciary.”
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (quota-
tion omitted). “[W]hen it is obvious that the unexhausted claims
would be procedurally barred in state court due to a state-law pro-
cedural default, we can forego the needless ‘judicial ping-pong’ and
just treat those claims now barred by state law as no basis for fed-
eral habeas relief.” Snowden v. Singletary, 135 F.3d 732, 736 (11th
Cir. 1998).
Pace did not exhaust his claim that the admission of evidence
that he burglarized Coretta Scott King violated his right to a relia-
ble sentencing because it is different from the issue he raised on
direct appeal. “In order to preserve an issue for collateral review
under Georgia law, a timely objection must be made at trial and
raised on appeal in accordance with Georgia procedural rules.”
Devier v. Zant, 3 F.3d 1445, 1454 (11th Cir. 1993); accord Waldrip
v. Head, 620 S.E.2d 829, 835 (Ga. 2005) (“Claims not raised on di-
rect appeal are barred by procedural default[.]”). On direct appeal,
Pace argued that the admission of evidence that he burglarized
Coretta Scott King violated his right to a reliable sentencing be-
cause the “conviction[ was] obtained in violation of [Pace’s] rights.”
Pace explained:
During the sentencing phase, the state introduced
into evidence the defendant’s pleas of guilty and sen-
tencing in the King and Monroe cases. At the time
[Pace] entered these pleas, he was represented by a
Mr. James S. Purvis. Mr. Purvis did not render effec-
tive assistance of counsel and [Pace’s] pleas in the
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16-10868 Opinion of the Court 101
King and Monroe cases were not knowingly and vol-
untarily entered. The trial court thus erred by admit-
ting the plea and sentencing documents in those
cases.
The Georgia Supreme Court concluded that “the admission of
non-statutory aggravating evidence about several previous burgla-
ries . . . was not error” because “[t]he [s]tate presented reliable evi-
dence about these offenses and there [was] no requirement that
other crime evidence in the sentencing phase be proven beyond a
reasonable doubt.” Pace, 524 S.E.2d at 505.
As the district court explained, and as Pace acknowledges,
Pace’s claim in his section 2254 petition is different from the claim
that he raised on direct appeal. Pace argued on direct appeal that
the admission of evidence that he burglarized Mrs. King violated
his right to a reliable sentencing because his guilty plea was “not
knowingly and voluntarily entered.” But, in his section 2254 peti-
tion, Pace claims that the admission of evidence that he burglarized
Mrs. King violated his right to a reliable sentencing because “Mrs.
King’s iconic standing . . . rendered the admission of this evidence
so inflammatory and prejudicial as to violate [Pace’s] constitutional
rights.” The “reasonable reader” wouldn’t understand the issue
Pace raised about the reliability of the evidence of his prior burglary
convictions on direct appeal to have the same “particular legal basis
and specific factual foundation” as Pace’s claim about the evi-
dence’s prejudicial effect. See Kelly, 377 F.3d at 1344–45. That’s
why the Georgia Supreme Court ruled that “[t]he [s]tate presented
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102 Opinion of the Court 16-10868
reliable evidence about these offenses” and didn’t address whether
the evidence was unconstitutionally prejudicial. Pace, 524 S.E.2d
at 505.
Because the issue he raised on direct appeal—whether the
reliability of his burglary conviction violated his right to a reliable
sentencing—is not the “same claim” as the claim he made in his
section 2254 petition—whether the evidence that Pace burglarized
Mrs. King was “so inflammatory and prejudicial” as to violate
Pace’s right to a reliable sentencing—it was not “fairly presented”
to the Georgia Supreme Court. See Picard, 404 U.S. at 275–76. And
because he did not raise the claim on direct appeal, the Georgia
Supreme Court would find it “barred by procedural default.” See
Waldrip, 620 S.E.2d at 835. Thus, Pace’s claim “is procedurally de-
faulted for the purposes of federal habeas review.” See Henderson,
353 F.3d at 898–99.
Although Pace’s claim is procedurally defaulted, “[a] peti-
tioner may obtain federal review of a procedurally defaulted claim
if he can show both cause for the default and actual prejudice re-
sulting from the default.” Jones v. Campbell, 436 F.3d 1285, 1304
(11th Cir. 2006). “Additionally, in extraordinary cases, a federal
court may grant a habeas petition without a showing of cause and
prejudice to correct a fundamental miscarriage of justice.” Id. But
Pace “has not attempted to meet either exception” and is therefore
“not entitled to relief on this claim.” See id. at 1304–05.
Alternatively, we conclude that Pace’s claim would fail even
if it weren’t procedurally defaulted. “As we have said many times
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16-10868 Opinion of the Court 103
and as the Supreme Court has held, a federal court may skip over
the procedural default analysis if a claim would fail on the merits in
any event.” Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020).
When we take this route, we “approach and analyze the claim de
novo.” Id.The state trial court’s admission of evidence that Pace bur-
glarized Mrs. King did not deny Pace a reliable sentencing. “Under
Georgia law, the [s]tate is permitted to prove nonstatutory aggra-
vating circumstances, so long as it proves at least one statutory ag-
gravating circumstance.” Devier, 3 F.3d at 1464 n.63 (citing
O.C.G.A. §§ 17-10-2, 17-10-30(b)). Here, the state proved nineteen
statutory aggravating circumstances—including that Pace mur-
dered Ms. McAfee, Ms. McClendon, Ms. Martin, and Ms. Britt dur-
ing the commission of a burglary—so the jury could consider “any
lawful evidence which tends to show the motive of the defendant,
his lack of remorse, his general moral character, and his predispo-
sition to commit other crimes.’” Id. at 1466 (cleaned up); see also
Gregg v. Georgia, 428 U.S. 153, 203 (1976) (plurality opinion) (“We
think that the Georgia court wisely has chosen not to impose un-
necessary restrictions on the evidence that can be offered at [the
sentencing phase] and to approve open and far-ranging argu-
ment. . . . We think it desirable for the jury to have as much infor-
mation before it as possible when it makes the sentencing deci-
sion.”). Evidence that Pace burglarized another elderly woman
tended to show, at the very least, Pace’s general moral character
and his predisposition to commit other crimes. Thus, there was no
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104 Opinion of the Court 16-10868
constitutional error in the state trial court’s admission of evidence
that Pace burglarized Mrs. King. See Moore v. Zant, 722 F.2d 640,
643–44 (11th Cir. 1983) (finding “no constitutional error” in the trial
court’s admission of evidence of nonstatutory aggravating circum-
stances which “included evidence of previous convictions for two
unrelated burglaries”).
Pace’s argument that this evidence “was so inflammatory
and prejudicial as to violate [his] right to a fair and reliable sentenc-
ing” fails. “We will not grant federal habeas corpus relief based on
an evidentiary ruling unless the ruling affects the fundamental fair-
ness of the trial.” Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir.
1998). “Habeas relief will only be granted if the state trial error was
material as regards to a critical, highly significant factor.” Baxter v.
Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995) (cleaned up); see Wil-
liams v. Kemp, 846 F.2d 1276, 1281 (11th Cir. 1988) (“To constitute
a denial of fundamental fairness, the evidence must have been not
only erroneously admitted at trial, but also must be material in the
sense of a crucial, critical, highly significant factor in the convic-
tion.” (quotation omitted)).
The evidence that Pace burglarized Mrs. King was not “a
crucial, critical, highly significant factor” in the jury sentencing
Pace to death. We agree with Pace that Mrs. King “was recognized
as a civil rights leader in her own right.” But we also agree with
the district court that Pace’s “burglary of M[r]s. King’s home was
minor when compared to his crimes against Lula Bell McAfee,
Mattie Mae McClendon, Johnnie Mae Martin, and Annie Kate
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16-10868 Opinion of the Court 105
Britt” and that Pace’s contention that his burglary of Mrs. King’s
home “would tip the balance in a juror’s mind toward execution
strains credulity.” In other words, Pace has not shown that his
death sentences “ultimately could not have been imposed on a rea-
sonable basis” without evidence that he burglarized Mrs. King. See
Cape v. Francis, 741 F.2d 1287, 1299 (11th Cir. 1984) (concluding
that the admission of testimony didn’t “prejudice[] [the defendant]
in a constitutional sense” where “[t]he remarks were not critically
material to the jury’s deliberations”). The district court did not err
in denying this claim.
Pace’s Claim That Limiting Evidence of His Eligibility for Parole
Violated His Right to a Reliable Sentencing
The state trial court denied Pace’s requests to inform the
jury about his eligibility for parole and responded to the jury’s ques-
tion about the possibility of a life sentence without parole by in-
structing the jury that it “shall not consider the question of parole.”
On direct appeal, the Georgia Supreme Court concluded that, be-
cause “[l]ife imprisonment without parole was not a sentencing op-
tion at Pace’s trial,” the state trial court didn’t err in preventing
Pace from informing the jury about his parole eligibility and that
“[t]he trial court’s response to [the] jury note” was “correct,” “ap-
propriate[,] and not error.” Pace, 524 S.E.2d at 845.
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106 Opinion of the Court 16-10868
Pace argues that the Georgia Supreme Court “applied no
federal law in adjudicating [this] claim[].”5 But, as the district court
concluded, that’s because there is no clearly established federal law
that requires that the jury be told that a defendant is eligible for
parole. In Simmons, the Supreme Court held that, “where the de-
fendant’s future dangerousness is at issue, and state law prohibits
the defendant’s release on parole, due process requires that the sen-
tencing jury be informed that the defendant is parole ineligible.”
512 U.S. at 156 (plurality opinion) (emphasis added); see also Bates
v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1301, 1302 (11th Cir.
2014) (“Simmons requires that a sentencing jury be informed of a
defendant’s parole ineligibility only where the defendant is, as a
matter of state law, absolutely ineligible for parole and the [s]tate
places his future dangerousness at issue.” (emphasis added)).
But the Supreme Court has never said that the jury must be
informed of the defendant’s parole eligibility where, as here, the
defendant is parole eligible. See Ramdass v. Angelone, 530 U.S.
5Pace also argues that the state trial court “violated [his] rights by responding
sua sponte and in the absence of the parties to a jury note asking whether it
could sentence him to life without parole.” He contends that “by disposing of
the jury’s question during a critical phase of [his] trial without even notifying
the parties, much less consulting them, the trial court deprived [him] of the
right to counsel, the effective assistance of counsel, the right to due process,
and the right to be present at all stages of his trial as guaranteed under the
Fifth, Sixth, Eighth[,] and Fourteenth Amendments to the United States Con-
stitution.” Because this claim is not part of Pace’s certificate of appealability,
we do not discuss it further. See Murray, 145 F.3d at 1251.
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16-10868 Opinion of the Court 107
156, 159 (2000) (“Simmons is inapplicable to [the] petitioner since
he was not parole ineligible when the jury considered his case[.]”
(emphasis added)); see also Bates, 768 F.3d at 1301 (“Since Sim-
mons was decided, the Supreme Court has declined to extend its
holding to cases where parole ineligibility has not been conclu-
sively established as a matter of state law.”). Because Pace was eli-
gible for parole, he cannot show that the Georgia Supreme Court’s
conclusion—that he was not entitled to present that eligibility to a
jury—was contrary to or an unreasonable application of clearly es-
tablished federal law. See Reese, 675 F.3d at 1288 (“[I]t is not an
unreasonable application of clearly established federal law for a
state court to decline to apply a specific legal rule that has not been
squarely established by the Supreme Court.” (cleaned up)).
CONCLUSION
The district court did not err in rejecting the five claims
listed in Pace’s certificate of appealability. We therefore affirm the
district court’s denial of Pace’s section 2254 petition.
AFFIRMED.
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16-10868 ROSENBAUM, J., Concurring 1
ROSENBAUM, Circuit Judge, Concurring:
I agree with the Majority Opinion that the Antiterrorism and
Effective Death Penalty Act of 1996 and our precedent require us
to affirm the district court’s denial of Lyndon Pace’s 28 U.S.C. §
2254 petition. That said, I do not agree with everything in the Ma-
jority Opinion’s analysis. Rather than nitpick, though, I simply
concur in part and separately in the judgment only.
I also want to underscore my disgust at how outrageous the
prosecution’s conduct in closing argument was. The prosecutor’s
antics have no place in our system of justice. To recap just a couple
of the prosecutor’s egregious remarks, he urged the jurors to im-
pose the death penalty rather than send Pace to prison for life be-
cause “if anal sodomy is your thing, prison isn’t a bad place to be.”
The despicable nature of this comment speaks for itself. Not satis-
fied with that, the prosecutor also told the jury to sentence Pace to
death because if it did not, it would be “saying that these victims’
lives didn’t matter.” It goes without saying that it is never appro-
priate or even permissible to attempt to guilt a jury into a death
verdict. These tactics aren’t close to the line or justifiable. They
are squarely and obviously improper.
But when prosecutorial misconduct doesn’t render a trial
“fundamentally unfair” in “context of the whole trial,” we must af-
firm. See Darden v. Wainwright, 477 U.S. 168, 183 (1986); Reese
v. Sec’y, Fla. Dept’ of Corr., 675 F.3d 1277, 1288 (11th Cir. 2012).
That is the case here. So I concur in the judgment because the law
requires it.
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2 ROSENBAUM, J., Concurring 16-10868
But that does not make prosecutorial misconduct somehow
acceptable. Almost a hundred years ago, Justice Southerland stated
the obvious: a prosecutor “is not at liberty to strike foul” blows.
Berger v. United States, 295 U.S. 78, 88 (1935). “It is as much [a
prosecutor’s] duty to refrain from improper methods” he wrote,
“as it is to use every legitimate means to bring about a just one.”
Id.The prosecutor here had been a member of the Georgia Bar
for over twenty years at the time of trial. Yet he struck many glar-
ingly foul blows. He certainly should have known better.
Capital cases like this one, where prosecutors have acted im-
properly, unprofessionally, and unbecomingly, continue to come
before us. Unfortunately, there is little we can do about this kind
of behavior in these cases. Referring offending prosecutors to the
relevant Bar is a meaningless gesture because, given that the pro-
fessional misconduct in these cases generally has occurred decades
earlier, the Bar cannot or will not discipline the attorneys. Simi-
larly, by the time we get the case, the offending prosecutor has of-
ten left the prosecuting office, and the responsible supervising at-
torney is likewise gone from the office, so the prosecuting author-
ity cannot take action against the prosecutor or her supervisor. In
other words, rogue prosecutors face no repercussions for their ac-
tions in these kinds of cases.
This type of unprofessional and improper behavior will stop
only if the state refuses to accept it in real time. The state must
train its prosecutors to act within the limits of the law and
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16-10868 ROSENBAUM, J., Concurring 3
professionalism, and it must hold its prosecutors responsible if they
fail to do so.
The state has a tremendous amount of power in a criminal
prosecution. And after it secures a guilty verdict in a capital case,
it enjoys the wind at its back through the penalty phase. A state’s
advantage is even greater on habeas review. If the facts warrant
imposition of the death penalty, the state’s advantages generally
ensure that any competent prosecutor can fairly and squarely se-
cure a death verdict. I’d hope that the finality of the death penalty
would make every prosecutor want to know that she has followed
the letter, spirit, and purpose of the rules.
But for those who don’t, make no mistake: a prosecutor
who resorts to dirty tricks, cheating, and bullying in pursuing a
death verdict—though it may not change the result and thereby
amount to a constitutional violation in a given case—stains not just
her own name but those of the state who employs her and of our
system of justice. Wielding the power of the state in the service of
convincing twelve people to put a person to death carries heavy
responsibilities. It’s well past time that state prosecuting authori-
ties, in real time, require their attorneys to act like it.