Brandon Jones v. GDCP Warden

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 11-14774-P
BRANDON ASTOR JONES,
Petitioner - Appellant,
versus
GDCP WARDEN,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges:
MARCUS, Circuit Judge:
Over thirty-six years after he robbed and murdered Roger Tackett, petitioner
Brandon Jones is scheduled to be executed by the Georgia Department of
Corrections on February 2, 2016. On January 21, 2016, he moved this Court to
recall its 2014 mandate denying his petition for habeas corpus relief and to
reconsider his original habeas petition after the fill Court issues an E banc
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decision in a different, although currently pending case, Wilson v. Warden
Georgia Diagnostic Prison. Jones has also filed a motion with this Court to stay
his execution pending reevaluation of his original habeas petition in light of the
forthcoming Wilson decision. The state opposes both motions.
After carefully reviewing the record before us and the party’s submissions,
we conclude that we are foreclosed by the Antiterrorism and Effective Death
Penalty Act and Supreme Court precedent from recalling the mandate denying
habeas relief. Furthermore, even if we were not foreclosed and examined the
merits of his motion, we would still deny it because, regardless of how m is
decided, Jones’s claim is without merit. Finally, even if we could recall the
mandate, our respect for the State of Georgia’s interest in the finality of its criminal
judgments would strongly counsel against doing so. We also deny Jones’s motion
to stay his execution because, regardless of how Wilson is decided, Jones has not
shown a substantial likelihood that he will prevail on the merits of his underlying
claim.
I.
A.
Jones was originally convicted and sentenced to death by the Superior Court
of Cobb County in 1979 for the robbery and murder of Roger Tackett, a
convenience store manager. As the state court detailed, Jones and his co—
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in his first habeas application. The Strickland claim that he asserted in his original
habeas petition alleged that “the Georgia state courts unreasonably applied
Strickland when they concluded that his trial counsel’s investigation of mitigating
evidence was not deficient and, second, that there was no reasonable probability
that the additional mitigating evidence discovered by Jones’s habeas counsel
would have altered the outcome of his trial.” Jones III, 753 F.3d at 1183-84. In his
motion to recall the mandate, Jones asks us to reconsider that Strickland claim by
measuring it against the decision of the Georgia state superior court, instead of the
Georgia Supreme Court’s determination. Quite simply, the claim is the same and
is therefore barred by 28 U.S.C. § 2244(b)(1).
But even if J ones’s ineffective assistance claim had not been presented in a
previous application and this motion was governed by § 2244(b)(2) rather than
§ 2244(b)(1), we would still be compelled to dismiss it because it does not fall
within either of that provision’s narrow exceptions to dismissal for claims that: (i)
rely on “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court,” or (ii) rely on a “factual predicate [that] could not
have been discovered previously through the exercise of due diligence.” 28 U.S.C.
§ 2244(b)(2). His claim relies on the same Supreme Court case law governing
ineffective assistance of counsel -- Strickland v. Washington, 466 US. 688 (1984)
and its progeny -- and not on any new rule of constitutional law. And he does not
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rely on any new evidence that was not presented and considered in his original
habeas petition.
J ones’s motion to recall the mandate is effectively a second or successive
habeas corpus petition; it does not satisfy any of the statutory exceptions to
dismissal; and therefore it must be denied.
B.
The Supreme Court, however, has provided one other possible avenue by
which a court of appeals can recall a mandate denying habeas relief. In cases
“where a motion to recall the mandate is pending,” a court may in very limited
circumstances “recall[] the mandate by its own initiative.” Calderon 523 US. at
554. Accordingly, we still retain authority to recall the mandate m m, “on
the exclusive basis of [J ones’s] first federal habeas petition.” I_d. However, we can
only do so in very limited circumstances. “[W]here a federal court of appeals spa
§p_(_)n_te recalls its mandate to revisit the merits of an earlier decision denying habeas
corpus relief to a state prisoner, the court abuses its discretion unless it acts to
avoid a miscarriage of justice as defined by [the Supreme Court’s] habeas corpus
jurisprudence.” Li. at 558.
Jones faces two insurmountable obstacles. First, were we to recall the
mandate, we would not be acting w sponte. Rather, we would be considering
whether to recall our mandate denying Jones’s habeas relief only because he filed a
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motion asking us to do so. Second, Jones has not demonstrated that a failure to
recall the mandate in his case would result in a miscarriage of justice. Because the
ineffective assistance claim that Jones seeks to relitigate challenged his death
sentence and not his underlying murder conviction, the “miscarriage of justice”
exception requires him to show that he is “actually innocent of the death penalty to
which he has been sentenced.” Samer v. Whitley, 505 US. 333, 349 (1992); s_ee_
@lfl Gonzalez V. Sec’y for Dep’t of Corn, 366 F.3d 1253, 1275 (11th Cir. 2004)
(en banc) (“If . . . a court of appeals is considering recalling the mandate on its own
motion, the literal terms of § 2244(b) do not apply, but the mandate cannot be
recalled unless necessary to prevent a miscarriage of justice; that means the
petitioner must be factually innocent of the crime, or of the sentence, as defined in
the pre-AEDPA federal habeas jurisprudence”). This narrow exception requires
him to “show by clear and convincing evidence that, but for a constitutional error,
no reasonable juror would have found [him] eligible. for the death penalty under the
applicable state law.” m, 505 US. at 336 (emphasis added). In deciding
whether he has made that showing, we “must focus on those elements that render a
defendant eligible for the death penalty [under the relevant state’s law], and not on
additional mitigating evidence that was prevented from being introduced as a result
of a claimed constitutional error.” Li. at 347.
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Under Georgia’s death penalty statute at the time of J ones’s trial, which
remains in effect today, a defendant who committed murder was not eligible for
the death penalty unless the jury found at least one statutory aggravating factor
proven beyond a reasonable doubt. fie Ga. Code Ann. § 17-10-30(c) (1997). In
J ones’s second sentencing trial, the jury found two statutory aggravating factors:
“Jones committed the offense of murder while engaged in the commission of
armed robbery and burglary” and “the murder was outrageously or wantonly vile,
horrible or inhuman in that it involved torture to the victim before death.” Jones 11,
539 S.E.2d at 157 (citing Ga. Code Ann. § 17-10-30(b)(2) & (7)). The Georgia
Supreme Court found that these aggravating circumstances were adequately
supported by the evidence relating to the manner in which the crime was
committed. m g at 158. The ineffective assistance claim in Jones’s original
petition alleged that his counsel “fail[ed] to discover mitigating background and
mental health evidence.” Jones 111, 753 F.3d at 1173. This evidence “could have
been helpful to his arguments at sentencing,” as “evidence of Jones’s psychiatric
problems may have bolstered the argument that Solomon, not Jones, was the
driving force behind the decision to rob the store” and “details regarding J ones’s
childhood with his abusive uncle and sexually abusive cousin and [placement] at a
deplorable juvenile detention center may have supported the argument that Jones
was not fully culpable for his actions, and may have cast him in a more
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sympathetic light.” I_d. at 1185. This evidence, if credited, could have diminished
J ones’s moral culpability in the eyes of the jury. But it would have been irrelevant
to the two aggravating circumstances found by the jury, which depended solely on
the manner in which the murder was committed and were the “elements that
render[ed Jones] eligible for the death penalty.” m, 505 US. at 347.
Because Jones’s claim involves only “additional mitigating evidence that
was prevented from being introduced as a result of a claimed constitutional error,”
3, he has not shown that a miscarriage of justice will result if we do not recall the
mandate denying his habeas petition. To recall our mandate in these circumstances
sua sponte would constitute a clear abuse of discretion. Calderon, 523 US. at 566.
Accordingly, we hold today that Jones cannot recall the mandate of this
Court because he cannot satisfy the requirements found in 28 U.S.C. § 2244(b)(1)
or (2), and, in any event, because he has not and cannot establish on this record any
miscarriage of justice as required by controlling Supreme Court precedent.3
3 Our concurring colleague suggests that this discussion about AEDPA and the controlling law
found in Calderon is dicta. We View the application of AEDPA and this Supreme Court
precedent as being essential to our holding in this case. Indeed, we do not believe we could
address the merits of his petition without first deciding whether it fit within any of the exceptions
to 28 U.S.C. § 2244(b). fi 28 U.S.C. § 2244(b)(3)(C) (“The court of appeals may authorize the
filing of a second or successive application only if it determines that the application makes a
prima facie showing that the application satisfies the requirements of [§ 2244(b)].” (emphasis
added)). '
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C.
Jones makes almost no mention of AEDPA or Calderon instead arguing that
the controlling standard for recalling the mandate in his case comes from our local
rules. EleventhCircuit Rule 41-1 is the general rule governing the recall of a
mandate in civil and criminal cases alike, and provides that “[a] mandate once
issued shall not be recalled except to prevent injustice.” 11th Cir. R. 41-l(b). In
Scott v. Singletm, 38 F.3d 1547, 1551 (11th Cir. 1994) -- which we decided prior
to the enactment of AEDPA and the Supreme Court’s decision in Calderon -- we
held that we could recall a mandate to prevent injustice in a habeas case “if there
has been a supervening change in the law” that “seriously undennine[d] the
correctness of [our] prior judgment.” Judge Anderson, joined in relevant part by
Judge Dubina, specially concurred in Sc_ott, explaining that Rule 41-1(b) imposes a
“high standard” that must be met to recall a mandate, requiring the petitioner to
show a “clir constitutional error” that prejudiced him. I_d. at 1557-59 (Anderson,
J ., concurring specially).
The Rule 41-1(b) “injustice” standard that we explicated in Scott no longer
provides an independent basis to recall the mandate in habeas cases. The Supreme
Court has instructed us that a distinct standard governs the decision to recall a
mandate denying habeas relief. fl Calderon, 523 US. at 553 (“Thompson’s i_s
not an ordinm case, however, because he seeks relief from a criminal judgment
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entered in state court. To decide whether the Court of Appeals’ order recalling the
mandate was proper in these circumstances, we measure it not only against
standards of general application, but also against the statutory andjurisprudential
limits applicable in habeas corpus cases.” (emphasis added)). Such a motion must
fall within an exception to dismissal contained in 28 U.S.C. § 2244(b). In addition,
we may recall the mandate on our own initiative to prevent “a miscarriage of
justice as defined by [the Supreme Court’s] habeas corpusjurisprudence.”
Calderon, 523 US. at 558. Unlike the “injustice” standard we described in Sc_ott
and on which Jones exclusively relies, a “miscarriage of justice” in the habeas
context depends not on a subsequent change in the law, but rather on the discovery
of “new evidence of innocence.” Schlup V. Delo, 513 US. 298, 316 (1995). The
general “injustice” standard embodied in our local rule is different from and less
demanding than the standard subsequently adopted by the Supreme Court, and,
therefore, no longer provides an independent ground to recall a mandate in a
habeas case.
But even if Rule 41-1(b)’s “injustice” standard governed our decision in this
case, we would still decline to recall the mandate because no “injustice” will result
if our original denial of habeas relief stands. There has been no supervening
change in the law in this case. Jones predicts that this Court will change the rules
governing federal habeas review in Wilson and adopt the rule he favors, but he is
[7
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only guessing. Without an actual change in the law, no injustice results from
leaving a prior decision undisturbed.
Furthermore, and tellingly, whether or not this Court rules in Wilson that we
look through the Georgia Supreme Court’s summary denial of a Certificate of
Probable Cause (“CPC”) and evaluate the Georgia state superior court’s habeas
denial as the state’s final “adjudication on the merits” under § 2254(d), the result
will be exactly the same in this case. The procedural anomaly here is that we have
already fully evaluated J ones’s Strickland claim both ways, the first time actually
by “looking through” to the state trial court’s habeas determination, fl March 20,
2014 Opinion at 21 n.4, and then a second time in an amended opinion measuring
his claim against the determination of the Georgia Supreme Court, Jones 111, 753
F.3d at 1182. In each instance, we determined that Jones had not met his burden
under AEDPA. Neither the state trial court’s habeas determination, nor the
Georgia Supreme Court’s denial of a CPC were contrary to or amounted to an
unreasonable application of Strickland. In short, this Court has already performed
precisely the same analysis Jones now asks for by seeking a recall of the mandate -
- a review of his Strickland claim when measured against the state trial court’s
determination.
This Court in both its March 2014 opinion an_d in the amended April 2014
decision engaged in an extensive and identical analysis of the facts adduced at the
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state habeas evidentiary hearing relating to the mitigating evidence Jones claimed
his trial counsel should have presented to the jury at his sentencing hearing. The
only change was the state court opinion that we considered as the “final
adjudication on the merits” under 28 U.S.C. § 2254(d).
This Court specifically weighed the totality of the aggravating evidence
against the totality of the mitigating evidence, the new and the old, the good and
the bad, and we concluded that Jones had failed to establish that he was entitled to
habeas relief. In our March 2014 opinion, we ultimately concluded that the “state
[trial] court’s determination that Jones did not raise a reasonable probability of a
different result is not contrary to or an unreasonable application of Strickland.”
March 20, 2014 Opinion at 29. We reached precisely the same conclusion on
precisely the same evidential foundation when we measured the evidence and the
commands of AEDPA against the Georgia Supreme Court’s determination. _S_e§
M, 753 F.3d at 1185.
Nevertheless, Jones insists that, if we analyze the state habeas court’s
decision under the “look through” approach, we would find his ineffective
assistance claim meritorious. He offers two reasons why, in his view, the Georgia
superior court contravened federal law when it found that, had counsel presented
mitigating evidence based on the leads that the defense investigator collected in the
Stapert file, the state would have introduced additional aggravating evidence culled
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from the same file. But in both the March and April opinions, we rejected each of
those arguments, as well as others in the same vein. fl March 20, 2014 Opinion
at 43 (“Jones advances several reasons why some of the aggravating evidence
developed in the habeas proceeding would not be admissible at a new sentencing
trial. We remain unpersuaded.”); w M, 753 F.3d at 1190-91 (same).
First, he argues that any information drawn from the Stapert file would have
been privileged and undiscoverable by the State. We squarely rejected this claim
in both opinions, explaining that it presented a question of state law and “state
courts are the ultimate expositors of state law.” March 20, 2014 Opinion at 43; sfi
also Jones 111, 753 F.3d at 1191 (same). Furthermore, we found that in a
sentencing retrial the Stapert file would be available for use by the state because,
“by bringing this habeas action first in state court, and then again in federal district
court, Jones has waived any current or future privilege or work-product protection
over the Stapert file.” March 20, 2014 Opinion at 43-44; W Jones III, 753
F.3d at 1191 (same). Second, Jones contends that much of the aggravating
evidence relied on by the state habeas court was “rank and inadmissible hearsay.”
But we also directly confronted and rejected this argument in both the March and
April opinions, explaining that “we cannot find unreasonable the state court’s
determination that the contents of the Stapert file w[ere] admissible hearsay.”
March 20, 2014 Opinion at 45; Jones III, 753 F .3d at 1192 (same)
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defendant, Van Roosevelt Solomon, were found at the scene of the murder by a
police officer. Jones v. State, 293 S.E.2d 708, 709-10 (Ga. 1982) (“m1”). The
officer approached the convenience store afier hours, saw Jones stick his head out
of the storeroom door before closing it again, and then heard three gunshots, a
pause, and one more shot. I_d_, The officer found Solomon and Jones in the
storeroom, where he later discovered Mr. Tackett’s body and two .38 caliber
revolvers. I_cL at 710. The medical examiner who performed Mr. Tackett’s autopsy
testified at trial that Mr. Tackett had been shot twice in the hip area, once in the
jaw, once in the thumb, and once behind the left ear. I_d_. Jones and Solomon
underwent neutron activation tests and both were found to have recently fired guns.
I_d. at 710-11.
The Georgia Supreme Court affirmed J ones’s conviction and death sentence
in 1982. I_d, at 715. Jones filed a state habeas corpus petition, which the Superior
Court of Butts County denied in 1982; the Georgia Supreme Court affirmed that
denial in 1984. Jones v. Francis, 312 S.E.2d 300, 306 (Ga. 1984). The United
States Supreme Court denied Jones’s petition for a writ of certiorari. Jones v.
Francis, 469 U.S. 873 (1984). Jones then petitioned for habeas relief in federal
district court, and a district court judge in the Northern District of Georgia granted
the petition in part and ordered a new sentencing proceeding because the state trial
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The “injustice” standard that generally governs our decision whether to
recall a mandate does not apply to habeas review of state criminal convictions.
But, even if it did, we have already considered Jones’s ineffective assistance claim
by “looking through” the Georgia Supreme Court’s CPC denial to the state
superior court’s reasoned opinion and have found it umneritorious. Thus,
regardless of how Wilson is decided, Jones cannot show that any injustice could
result if we do not re-evaluate his ineffective assistance claim after Wilson is
decided.
D.
Finally, even if Jones could surmount these huge hurdles, on this record we
would still be loath to now recall our 2014 mandate denying habeas relief because
to do so would unjustifiany subvert Georgia’s interest in the finality of its criminal
judgments. Jones insists that the pending m decision in m provides a
sufficient justification to reopen his case. But we are aware of no case -- and Jones
has cited none -- where we recalled a mandate because we subsequently granted Q
m consideration of a different matter in a different case.
Recalling a mandate based on speculation about how we might resolve a
subsequent @ m case is especially inappropriate in the habeas context, where
federal courts must respect the state’s interest in “the finality of convictions that
have survived direct review within the state court system.” Brecht v. Abrahamson,
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507 US. 619, 635 (1993). These interests are particularly “compelling when a
federal court of appeals issues a mandate denying federal habeas relief.” Calderon,
523 US. at 556. The Supreme Court has explained the rationale this way:
When lengthy federal proceedings have rlm their course and a
mandate denying relief has issued, finality acquires an added moral
dimension. Only with an assurance of real finality can the State
execute its moral judgment in a case. Only with real finality can the
victims of crime move forward knowing the moral judgment will be
carried out. To unsettle these expectations is to inflict a profound
injury to the powerful and legitimate interest in punishing the guilty,
an interest shared by the State and the victims of crime alike.
I_d. (citations and quotations omitted).
Indeed, “[n]o one, not criminal defendants, not the judicial system, not
society as a whole is benefited by a judgment providing that a man shall tentatively
go to jail today, but tomorrow and every day thereafter his continued incarceration
shall be subject to fresh litigation.” Teagge v. Lane, 489 US. 288, 309 (plurality
op.) (quoting Mackey v. United States, 401 US. 667, 691 (1971) (Harlan, J .,
concurring in judgments in part and dissenting in part)). In a case such as this one,
where a court of appeals is asked to “recall[] its mandate to revisit the merits of its
earlier decision denying habeas relief,” “the State’s interests in finality are all but
paramoun .” Calderon, 523 US. at 557. If our decision to rehear a different case
involving a related question e_n M provided a basis to recall our mandate denying
habeas relief, our decisions would amount to interlocutory orders subject to
constant reconsideration.
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Moreover, the legal change that Jones anticipates we will adopt in Wilson is
simply not the type of new legal rule that would entitle him to relitigate his original
habeas petition. The questions being considered in Wilson involve which state
court decisions federal habeas courts ought to review under 28 U.S.C. § 2254(d),
and have no bearing on the legal standards that state courts must apply in
examining a Strickland claim. The purpose of federal habeas review is to
encourage state “trial and appellate courts throughout the land to conduct their
proceedings in a manner consistent with established constitutional standards.”
m, 289 US. at 306 (plurality op.) (quoting Desist v. United States, 394 US.
244, 262-63 (1969) (Harlan, J ., dissenting)). In light of this purpose, the Supreme
Court has held that, within very narrow exceptions, “the habeas court need only
apply the constitutional standards that prevailed at the time the original
proceedings took place” in order “to force the trial and appellate courts to toe the
constitutional mark.” ii at 306-07 (quotations and alterations omitted). Justice
O’Connor, writing for a plurality in Teague v. Lane, concluded that habeas review
does not existjust to serve some “perceived need to assure that an individual
accused of a crime is afforded a trial free of constitutional error,” E at 308
(quoting Kuhlmann v. Wilson, 477 US. 436, 447 (1986) (plurality op.)); instead,
weighty “interests of comity and finality” persuaded the Court that new rules
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governing criminal prosecutions generally should not be applied retroactively on
collateral review to cases that are already final, Q
The same interests of federalism, comity, and finality that guided the
Supreme Court’s decision in m apply here but with even more compelling
force. To undo and reconsider our settled decisions denying habeas relief based on
a new rule governing which state court decision federal habeas courts review
'would do nothing to further the goals of habeas review, and would eviscerate “the
principle of finality which is essential to the operation of our criminal justice
system.” I_d. at 309.
In short, recalling our mandate denying habeas relief at this late stage --
thirty-six years after the murder and first death sentence was imposed, nineteen
years after the second death sentence was imposed and fifteen years after it became
final, seven years after Jones filed his current federal habeas petition, and thirteen
months after we declined to rehear his case and issued our mandate denying habeas
relief -- would “inflict a profound injury to the powerful and legitimate interest in
punishing the guilty, an interest shared by the State and the victims of crime alike.”
Calderon, 523 US. at 556 (internal citation and quotation omitted). These interests
too counsel against recalling our mandate.
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111.
Jones has also moved this Court to stay his execution so that we may
reconsider our denial of the ineffective-assistance-of—counsel claim asserted in his
original habeas petition after Wilson is decided. It is by now clear that we may
grant a stay of execution only if Jones establishes that: “(1) he has a substantial
likelihood of success on the merits; (2) he will suffer irreparable injury unless the
injunction issues; (3) the stay would not substantially harm the other litigant; a_nd
(4) if issued, the injunction would not be adverse to the public interes .” E
Powell v. Thomas 641 F.3d 1255, 1257 (11th Cir. 2011) (emphasis added).
Because Jones cannot show a substantial likelihood of success on the merits, we
deny his motion for stay.
For the reasons we have explained at some length, we cannot, on this record
and in this procedural posture, recall our earlier mandate denying J ones’s habeas
petition. And without recalling our mandate, there is no procedural vehicle by
which we could reevaluate J ones’s previously denied habeas claims. Were he to
file a new habeas petition under 28 U.S.C. § 2254, again seeking to raise the
ineffective-assistance-of—counsel claim that we have already denied, it would have
to be dismissed. See 28 U.S.C. § 2244(b)(1). For that reason alone, Jones has not
shown a substantial likelihood that he will succeed on the merits of his ineffective
assistance claim.
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But even if we could lawfully recall the mandate, await the resolution of
Wilson Q banc, and Wilson were to require the “look through” approach under 28
U.S.C. § 2254(d), Jones still could not succeed on the merits of his claim. We
repeat: in the unique circumstances of this case, we have already seen the flip side
of the Wilson coin. In our now-withdrawn March 20, 2014 opinion, we employed
precisely the mode of analysis that Jones argues we should use and we rejected his
ineffective assistance claim. He has offered no new arguments to reconsider the
soundness of that decision even if we were able to examine it still again. Quite
simply, because we have already rejected his ineffective assistance claim whether
measured against the trial court’s ruling or based only on an analysis of the
Georgia Supreme Court’s Certificate of Probable Cause determination, Jones
cannot show a substantial likelihood of success on the merits.
IV.
In sum, we conclude that to recall our mandate denying J ones’s habeas
petition would amount to an abuse of discretion; that, even if we could recall the
mandate we would not because no “injustice,” let alone a “miscarriage of justice,”
will result from allowing our prior decision to rest undisturbed; and that disturbing
the finality of our decision denying habeas relief in this case would be
inappropriate in light of Georgia’s powerful interest in the finality of its criminal
judgments. For the same reasons, we also conclude that Jones has failed to
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establish a substantial likelihood that he will succeed on the merits of his
ineffective-assistance-of-counsel claim. Accordingly, we deny both his motion to
recall the mandate and his corollary application to stay execution.
MOTION TO RECALL MAN DATE AND MOTION FOR STAY OF
EXECUTION DENIED.
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WILSON, Circuit Judge, concurring:
As stated by the Majority, “[t]he essence” ‘of Jones’s argument in both of his
motions is that our pending en banc decision in Wilson V. Warden, Georgia
Diagnostic Prisonl will “reverse the case law governing federal habeas review that
we applied” to his Strickland claim and that, “under the ‘look through’ approach
that Jones anticipates we will adopt in _W_il_s_o_r_1, we would likely have found” his
Strickland claim meritorious. Maj. Op. at 8 (internal quotation marks omitted). In
other words, Jones’s requests for relief are based solely on his contention that his
Strickland claim would prevail under the “look through” approach. Accordingly,
as the Majority itself acknowledges, its finding that J ones’s Strickland claim would
clearly fail under that approach is dispositive. E Maj. Op. at 20, 25—26. I agree
with the Majority on_this point—we must deny Jones’s motions because, even if
we applied the “look through” approach, his Strickland claim would not succeed.
Since this issue is dispositive, the Majority’s discussion beyond its “look through”
determination is “not necessary to decid[e]” Jones’s case, making it dicta. E
United States v. Eggersdorf, 126 F.3d 1318, 1322 n.4 (11th Cir. 1997). Although
such discussion is extraneous, I do not agree with the reasoning therein and,
therefore, concur only in the result.
1 774 F.3d 671 (11th Cir. 2014), reh’ en banc ranted, opinion vacated (July 30, 2015).
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macmmm: "A"
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. l 1-14774
D.C. Docket No. 1:09-cv-01228-CAP
BRANDON ASTOR JONES,
Petitioner - Appellant,
versus
GDCP WARDEN,
Respondent - Appellee.
Appeal fromlthe United States District Court
for the Northern District of Georgia
(March 20, 2014)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
In 1979, Petitioner Brandon Astor Jones was convicted of malice murder in
Georgia state court. Jones and his co-defendant, Van Roosevelt Solomon, killed
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Roger Tackett, the manager of a Tenneco convenience store, in the course of an
armed robbery and burglary. Jones was sentenced to death, but the United States
District Court for the Northern District of Georgia later granted J ones’s petition for
a writ of habeas corpus in part and vacated his sentence only. This appeal
concerns two errors that, Jones claims, infected his m penalty-phase trial,
which also resulted in a sentence of death. The Georgia state courts, both on direct
appeal and during collateral habeas proceedings, rejected all of Jones’s attacks on
his sentence, and the federal district court denied Jones’s second petition for a writ
of habeas corpus in its entirety.
After thorough review, we affirm. We conclude that the state habeas court’s
rejection of Jones’s ineffective-assistance claims was not an unreasonable
application of Strickland v. Washington, 466 US. 668 (1984). The state habeas
court did not unreasonably determine that Jones suffered no prejudice from his
counsel’s-failure to discover mitigating background and mental health evidence,
especially in light of the substantial aggravating circumstances that would also
have been revealed in the investigation and presentation of this “new” mitigating
evidence. Jones raises a Fifth Amendment claim regarding the prosecutor’s
comments during his closing argument too, but that claim is also unavailing.
Therefore, we affirm the district court’s denial of habeas relief.
I.
Case: 11-14774 Date Filed: 01/28/2016 Page24of 28
court had improperly allowed the jury to bring a Bible into the deliberation room.
S_e§ Jones v. Kemp, 706 F. Supp. 1534, 1560 (N .D. Ga. 1989).
In 1997, the Superior Court of Cobb County sentenced Jones to death a
second time. SE Jones v. State, 539 S.E.2d 154, 157 (Ga. 2000) (“Jones 11”),
reh’g den. Dec. 14, 2000, cert. den. 534 US. 839 (2001). The Georgia Supreme
Court again affirmed Mr. Jones’s death sentence. LL Jones filed a pro se petition
for a writ of habeas corpus in Butts County Superior Court, which was later
amended by counsel. The superior court denied all claims for relief. Jones v.
Ting, Case No. 2002-V-79 (unpublished order of March 17, 2006). The Georgia
Supreme Court summarily denied his Application for Certificate of Probable Cause
to Appeal on September 3, 2008. Jones v. Tem, No. S06E1736 (Ga. September 3,
2008). .
On May 8, 2009, he commenced federal habeas corpus review pursuant to
28 U.S.C. § 2254, raising eleven grounds for relief. On August 10, 2011, the
district court in the Northern District of Georgia denied his petition in its entirety
in an unpublished order, but granted Jones a certificate of appealability on two
claims: (1) that Jones’s trial counsel provided ineffective assistance of counsel in
violation of Strickland v. Washington, 466 US. 668 (1984), by failing to
investigate certain sources of potential mitigation evidence, and (2) that the
prosecution’s comments made during closing argument at J ones’s sentencing
Case: ill—14774 Date Filed: 01/28/2016 Page: 3 0f 51
A.
The Georgia Supreme Court’s denial of J ones’s direct appeal, which
followed his second penalty-phase trial, summarized the essential facts of this case:
[T]he evidence showed that the victim, Roger Tackett, was the
manager of a Tenneco convenience store. On June 16, 1979, he
arrived at the store at 11:20 pm. to close it for the night. After the
other employees left, Tackett remained at the store to complete some
paperwork. At approximately 1:45 am, Officer Kendall of the Cobb
County police department drove a stranded motorist to the Tenneco
parking lot so she could use a pay phone. Officer Kendall observed a
car (Tackett’s) parked in front of the store with the driver’s-side door
open; the lights were also still on inside the store. Since the Tenneco
store was in his regular patrol area, Officer Kendall knew that it
usually closed at midnight. Suspicious, he walked to the store and saw
through the fiont window Brandon Jones stick his head out of the
storeroom door at the back of the store, look around (apparently
without seeing the officer), and then close the storeroom door. Officer
Kendall entered through the unlocked front door and heard three
shots, a pause, and then a fourth shot. He drew his weapon and after
shouting “police, come on on ” without a response, approached the
storeroom door and opened it. Jones and his co-defendant, Van
Roosevelt Solomon, were standing just inside the door. Officer
Kendall ordered them into the main store area, where he searched
them and handcuffed Jones. He placed Solomon in his patrol car since
he only had one set of handcuffs, and called for assistance on the
radio. He also informed both defendants of their rights under Miranda
A private security officer, Alex Woolyard, heard Officer
Kendall’s request for assistance on a police scanner and arrived first.
He loaned Officer Kendall a set of handcuffs to restrain Solomon and
watched the defendants While Officer Kendall investigated a van
parked nearby. During this time, Woolyard spoke with Jones and
determined that the car parked in front of the store did not belong to
them; they had arrived in the van. Upon continued questioning by
Woolyard, Jones stated that they had come to burglarize the store and
found a man who was “bad hurt” in the back of the store. After
3
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handcuffing Jones to a metal pole, Woolyard and Officer Kendall
entered the store and discovered that the storeroom door had locked
when it shut as the defendants exited. They used a crowbar to break
open the door and they found Tackett’s body lying face-down at one
end of the narrow storeroom (Oficer Kendall had not seen the victim
when he first encountered the defendants in the storeroom since he did
not enter the storeroom at that time). Tackett had been shot five times
fi'om behind, once in the jaw, once behind the left ear, once in the
thumb, and twice in the right hip. The medical examiner determined
that the fatal shot was the “loose contact” shot behind the left ear
since that bullet penetrated the brain; this shot was probably the final
shot and was fired while the victim was lying on the ground. Two .38
caliber revolvers were found in an open box next to where Officer
Kendall had first encountered the defendants. A large Smith and
Wesson contained two spent shells; a smaller Colt contained four
spent shells. Four .38 caliber bullets were recovered at the scene or in
the victim’s body; the ballistics expert determined that all were
probably fired by the Colt. Crime scene photographs also show a
possible bullet hole in a shelf on the wall, indicating a fifth shot may
have been fired in the storeroom. An atomic absorption test conducted
on swabs of the defendants’ hands indicated that both men had
recently fired a gun or handled a recently fired gun. The store’s cash
drawer was found moved from its original place inside the store and
wrapped in a plastic bag. Inside the van, which belonged to Solomon,
the police discovered burglary tools, holsters that fit the revolvers and
.38 caliber bullets.
Jones v. State 539 S.E.2d 154, 157-58 (Ga. 2000) (“Jones 11”).
B.
In 1979, both Jones and his co-defendant Solomon were indicted for malice
murder, convicted in separate jury trials, and sentenced to death. The Georgia
Supreme Court affirmed Jones’s conviction and death sentence in 1982. Jones v.
State, 293 S.E.2d 708 (Ga. 1982) (“Jones 1”). Jones filed a state habeas corpus
petition, which the Superior Court of Butts County denied in 1982; the Georgia
4
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Supreme Court affirmed that denial in 1984. The United States Supreme Court
denied Jones’s petition for a writ of certiorari. Jones v. Francis 469 US. 873
(1984). Jones then petitioned for habeas relief in federal court. The United States
District Court for the Northern District of Georgia granted the petition in part and
ordered a new sentencing proceeding, on the ground that the state trial court had
improperly allowed the jury to bring a Bible into the deliberation room. $52 1%
fling-p, 706 F. Supp. 1534, 1560 (NB. Ga. 1989).
Jones’s second penalty-phase trial took place in the Superior Court of Cobb
County in September 1997. During closing argument, the prosecutor commented:
The thing that bothers me most about this case, and I hope it bothers
you, is the complete lack of remorse. Have you seen any remorse in
this case? I hope I’m wrong about it. I hope you saw some, because I
didn’t. None of the defense witnesses who testified told you anything
about Jones being remorseful. Again, I hope I’m wrong. No one has
claimed through Jones’s lawyers or his writings that he has apologized
to the Tackett family or sought their forgiveness. No one has claimed
through Jones’s web site on the Internet that he’s apologized to the
Tackett family or sought their forgiveness. Now, who has the power
of forgiveness on this earth? Well, that belongs to Mr. Tackett, and in
his absence, to Mrs. Tackett and her daughter, and there’s no evidence
that they have been asked. I find that . . . unusual for eighteen years
he’s had that opportunity. He’s got all kinds of pen pals who
apparently would do anything for him. I’m sure if asked, they would
have been dispatched to Florida. But there’s no indication or evidence
that they were asked. So where is the remorse?
Is not that the kind of conduct that deserves the death penalty?
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The defense objected and requested a mistrial, arguing that the prosecutor’s closing
statement impermissiny commented on the defendant’s refusal to testify. The
state trial court denied the motion.
During deliberations, the jury informed the trial court that it had reached an
“impasse,” apparently because one juror was “opposed to the death penalty under
any circumstances.” SE Jones 11, 539 S.E.2d at 160. The judge then chose to give
a so-called Romine charge.l A Romine charge is the Georgia state-law equivalent
' This was the charge:
You have now been deliberating upon this case for a considerable period of time. The
Court deems it proper to advise you further in regards to the desirability of agreement, if
possible.
The case has been exhaustively and carefully tried by both sides and has been submitted
to you for your decision and verdict, if possible.
While the verdict must be the conclusion of each juror and not a mere acquiescence of the
jurors in order to reach an agreement, it is still necessary for all of thejurors to examine
the issues and questions submitted to them with candor and fairness and with proper
regard and deference to the opinions of each other. A proper regard for thejudgments of
others will greatly aid us in forming our own judgment.
Each juror should listen to the arguments of otherjurors. If the members of thejury differ
in their view of the evidence or the mitigating or the aggravating circumstances, such
difi'erences of opinion should cause them or cause you all to scrutinize the evidence more
closely and to reexamine the grounds of your opinion. It is your duty to decide the issues
which have been submitted to you if you can conscientiously do so.
Do not hesitate to change an opinion if convinced it is wrong. However, you should never
surrender honest convictions or opinions in order to be congenial or to reach a verdict
solely because of the opinion of others.
The aim ever to be kept in view is the truth as it appears from the evidence, examined in
the light of the instructions of the Court.
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of a federal Allin charge, fig Allen v. United States, 164 US. 492 (1896); m
&_S_t_a_tg, 350 S.E.2d 446, 525-26 (Ga. 1986), where a trial judge urges a hungjury
to continue deliberating and to attempt to reach a verdict. Three hours later, the
jury returned a verdict: it found two statutory aggravating circumstances -- that
Jones committed the murder while engaged in the commission of armed robbery
and burglary, fie; Ga. Code Ann. § 17-10-30(b)(2), and that the murder was
“outrageously or wantonly vile, horrible, or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim,” $9 1; § 17-10-30(b)(7)
- and sentenced Jones to death. & min, 539 S.E.2d at 157.
Jones appealed to the Georgia Supreme Court. Among other points of error,
Jones raised his Fifth Amendment challenge to the State’s closing argument. The
Georgia Supreme Court rejected this argument because “it is not improper to argue
the defendant’s lack of remorse in the penalty phase, nor do such comments
amount to an improper reference to a defendant’s failure to testify.” _I_d_, at 159.
According to the state’s high court, the prosecutor was not pointing at Jones’s
failure to testify but rather the fact that “[s]everal of Jones’s mitigation witnesses
testified about his numerous articles . . . and their frequent correspondence with
him, but . . . none had mentioned any expression of remorse by Jones.” 11.
Now, in just a moment I’m going to send you back to the jury room so that you may
again continue your deliberations for a reasonable period of time and examine your
differences in a spirit of fairness and candor and try to arrive at a verdict in this case.
7
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C.
Jones then collaterally attacked his death sentence by filing a habeas petition
in the Superior Court for Butts County in 2003. In 2004, the state habeas court
held an extensive evidentiary hearing'on Jones’s claims of ineffective assistance of
trial counsel, and developed an elaborate record of what Jones’s trial counsel had
and had not done in preparation for the penalty phase.
Through this record, we learned that Jones’s trial counsel, Clive Stafford
Smith, had hired an investigator, Bart Stapert, who started compiling evidence of
Jones’s childhood and background for potential use at sentencing. Stapert made
two trips to Chicago in 1993 and found witnesses who could testify about Jones; in
the same year, however, Smith relocated and ended his representation of Jones,
which also ended Stapert’s involvement in the case.
The case did not move forward for several years, until the state court
appointed two new lawyers, Ray Gary, Jr., and J. Michael Treadaway, to represent
Jones in March 1996. A third lawyer, Tony Axam, joined the team shortly before
the penalty phase retrial and was the one who actually conducted the retrial.
After Gary and Treadaway first met Jones, Jones sent his new attorneys a
letter, along with twenty-seven attachments (mostly J ones’s own publications or
writings). These writings described how an older female cousin had sexually
abused Jones when he was five years old, and how Jones had suffered “extremely
Case: 11-14774 Date Filed: 01/28/2016 Page: 9 of 51
violent beatings” from his uncle. The writings also detailed that when Jones fled
home, he became a member of a gang, which led to his incarceration at Sheridan, a
juvenile detention center where he was beaten. Both defense counsel Gary and
Treadaway testified that they had read Jones’s letter and remembered parts of the
personal history contained in the attached articles. They also testified, however,
that when they asked Jones about the writings, Jones said something to the effect
that, “I tell them what I think they want to hear.” Gary took this to mean that the
writings were “fiction” and “[not] true,” and Treadaway took it to mean that the
writings were “not to be relied upon.” In addition, both attorneys testified that they
would have inquired about abuse when asking general background questions, but
they could not remember Jones telling them, in person, that he had ever been
abused as a child.2
Specifically, Gary testified this way:
[The State]: . . . . What kind of questions did you ask Petitioner about his childhood?
[Gary]: We asked him, you know, like where he went to school, if he had been trouble.
We asked him about his medical history and school history and discipline history, about
his parents and how he was raised, whether or not there was any abuse.
Q: Do you recall what he said to you about that?
A: I don’t remember him saying that there was any.
Q: You don’t recall him saying there was any abuse by his parents?
A: No.
Q: Do you recall him saying there was any abuse from anyone else who reared him?
9
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In December 1996, the defense team received a letter from Stapert, the
investigator hired by Jones’s previous attorney. Stapert’s letter said that he had
“spent a lot of time with [Jones] and developed a close relationship with him,” and
had “built good contacts with several of [Jones’s] friends and family members in
the Chicago area.” Stapert claimed to have “created a fairly detailed picture of
what evidence could and should be presented at trial,” and offered “to assist you in
your efforts or, at the least, share any insights and information I might have.”
However, it appears that none of J ones’s three lawyers contacted Stapert during
their investigation in preparation for Jones’s retrial.
Instead, Gary and Treadaway testified that they reviewed the boxes
containing Jones’s previous attorneys’ files, though Axam, who officially joined
the team shortly before the retrial, did not have time to review all of the material.
Included in the records was a l963 report by US. Army psychiatrist Dr. Levon D.
Tashjian, which recommended, and ultimately led to Jones’s discharge from the
army for psychological reasons. Dr. Tashjian observed that Jones “was markedly
depressed,” and he initially placed Jones on anti-depressant medications. Tashjian
A: No, but that is what we were looking for, obviously.
Q: So you were asking about specific questions about that topic?
A: Yes. That’s what we were there for. That was the main thing we would be looking for
is any mitigation for the penalty phase.
10
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concluded that there was no evidence “of a major thinking disorder such as specific
psychosis or psychoncurosis,” but that Jones suffered from “a severe character
disorder, characterized by extreme emotional instability and liability, by
immaturity in handling the demands of his environment, . . . and by his passive
way of running away from the stresses of his environment.” Tashjian believed that
J ones’s poor adjustment to the military was the consequence of his character
disorder and merely “a repetition of a demonstrable life-long pattern of defective
adjustment.” The doctor ultimately concluded that attempts at rehabilitation would
have been unavailing. He did note, however, that Jones “was and is mentally
responsible, both to distinguish right from wrong and to adhere to the right.”
While defense counsel Treadaway did not remember Tashjian’s report, Gary
testified that the report contained “90 percent aggravation and 10 percent
mitigation” and was “certainly not anything [he] would want to bring in front of a
Cobb County jury.” Gary admitted that the defense team never followed up or
investigated the report.
Treadaway also testified that he subpoenaed Jones’s prison records but that
he did not recall whether any mental health evaluations were included. In fact,
Jones’s prison medical records contained three mental health evaluations by prison
psychiatrists. The first, dated July 13, 1982, concluded that “this patient has no
evidence of psychiatric illness." The second, dated February 16, 1987, by
ll
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psychiatrist Dr. Marcelo de la Sema, likewise concluded that Jones “was not
suffering from any severe clinical symptomatology,” but also opined that Jones
“presented a picture of a deeply ingrained and pervasive personality disorder.” Dr.
de la Sema thus determined that while Jones was not suffering fi'om an Axis I
clinical disorder (such as bipolar disorder or PT SD), he did suffer from an Axis II
personality disorder -- to wit, mixed personality disorder with “prominent
histrionic, paranoid, and passive~aggressive features.”3 The final report, dated
December 1, 1987, concerned Jones’s reports of difficulty sleeping. The report
stated that Jones was given Benadryl and would continue to be monitored.
Both Gary and Treadaway testified that they could have secured the funds
for an investigator or a mental health expert from the state court. They did not
petition the court for such funds, however, because they believed that hiring a
mental health expert potentially would have hurt the defense. According to Gary,
the law at the time of Jones’s retrial would have permitted the State to interview
the mental health expert and even to call that expert as a State’s witness. Nor did
they hire an investigator to look into J ones’s childhood.
Instead, Gary and Treadaway focused on three other avenues of mitigation,
which they investigated and which Axam eventually presented to the jury. First,
3 The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) organizes psychiatric
diagnoses into several dimensions or axes: Axis I pertains to all psychological diagnostic
categories except mental retardation and personality disorders, and Axis II pertains to mental
retardation and personality disorders. Seea e.g., Am. Psychiatric Ass’n. DSM (3d ed. l980).
l2
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violated his privilege against self-incrimination. See Order, Jones v. Hall, No. 09-
cv-01228-CAP (N .D. Ga. August 10, 201 1) (Docket No. 45).
On March 20, 2014, our Court affirmed the district court’s denial of relief on
both of those claims. & March 20, 2014 Opinion (appended hereto as
Attachment A). In that decision, we reviewed “the Superior Court’s denial of
habeas relief” as the m state-court determination of J ones’s claim, “[s]ince the
Georgia Supreme Court declined to review the merits of the case.” & Q at 21
n.4. On April 24, 2014, we withdrew our March opinion and issued an amended
decision, again affirming the district court. Jones v. GDCP Warden, 753 F.3d
1171 (11th Cir. 2014) (“Jones 111”). In the amended decision, however, we
recognized that “[t]he Georgia Supreme Court’s denial of the application for a
certificate of probable cause to appeal was the final state—court determination” of
J ones’s claim. I_d. at 1182. Jones filed a petition for rehearing en m, which orir
Court denied on December 1, 2014. Our mandate issued on December 10, 2014.
Jones then petitioned the Supreme Court of the United States for a writ of
certiorari, which was denied on October 5, 2015. Jones v. Chatman, 136 S. Ct. 43(2015). And on November 30, 2015, the Supreme Court denied his Petition for
Rehearing from the denial of certiorari. Jones v. Chatman, 136 S. Ct. 570 (2015).
Soon thereafter, on December 22, 2015, Jones filed a complaint pursuant to
42 U.S.C. § 1983 in the United States District Court for the Northern District of
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counsel believed that the evidence of the crime itself left open the possibility that
Solomon, Jones’s co-defendant, had killed the victim, and that Jones was not the
shooter. The attorneys hired a forensic expert, Dr. Norton, to examine the facts
and testify at the retrial that based on the angles of the bullet holes, Jones could not
have been the shooter. Second, Gary and Treadaway attempted to blunt the State’s
introduction of the petitioner’s prior Illinois assault conviction as an aggravating
circumstance. To that end, they hired an investigator to go to Chicago and find a
witness who would testify that the assault victim was actually the aggressor, and
the witness testified at trial. Finally, Gary and Treadaway sought to demonstrate
that Jones had forged valuable relationships with pen pals while he was in prison,
and that J ones’s death would hurt his family. Thus, they interviewed several
family members and J ones’s pen pals, some of whom eventually testified on
Jones’s behalf.
At some point during the second trial, either Jones himself or his supporters
apparently told Axam about the abuse and neglect that Jones suffered as a child.
Axam therefore prepared a proposed jury instruction that listed three specific
mitigating factors that the jury could find about J ones’s difficult childhood. Axam
had no witnesses or evidence to attest to these mitigating circumstances, however,
so the trial court declined to give the proposed instruction.
[3
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Beyond this account by Jones’s trial attorneys of the circumstances
surrounding the sentencing retrial, the record from the state habeas hearing
contains three other broad categories of relevant evidence: (1) additional
background mitigation evidence regarding Jones’s childhood; (2) background
aggravating evidence regarding Jones’s mistreatment of his family and other
misconduct; and (3) mental health mitigation evidence. In particular, Jones offered
eight affidavits from friends and family members who knew Jones while he was
growing up, as well as affidavits and depositions from four mental health experts.
For its part, the State offered the contents of the file compiled by the investigator,
Bart Stapert, for Jones’s prior counsel, Clive Stafford Smith (the “Stapert file”).
The State also introduced Jones’s prison record, military record, and arrest record.
Together, the evidence presented to the state habeas court reveals an
unhappy and abusive childhood. Jones’s mother, Jessie Carter, evinced signs of
mental instability, his father played no role in his upbringing, and his family was
poor. Jones gave Carter “fits” because he was “not a quiet baby,” and when Jones
was a toddler, Carter gave him to her aunt and uncle, Lois and Reverend James
McGee, who then raised him. McGee, Jones’s uncle, regularly beat Jones and his
cousin, Lois Crenshaw. A neighbor and friend of Jones, Odell Duncan, recalled
6‘
that Jones’s arms and face were always covered in bruises.”
l4
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Jones repeatedly ran away from the McGees’s farm until, at the age of
twelve, he moved back in with his mother and her new husband, Julius Lewis, in
Chicago. Carter was ill-equipped to raise a child, and her marriage was a violent
one. During this time, Jones developed an extensive juvenile record “for stealing
cars and the like” and began using aliases. At around thirteen years old, he was
placed -- under the name “Estes Lewis” -- in the State Industrial School for Boys in
St. Charles for robbing a milkman. As a fifteen year old, Jones was sent to
Sheridan, a state juvenile institution that resembled a prison, for eighteen months.
Jones told the investigator, Stapert, that he went to Sheridan for “an incident
related to the murder of a youth at a gang party”; J ones’s father, however, claimed
that Jones had raped a girl who lived down the street from his grandmother. While
Jones was at Sheridan, the guards and administration were abusive to the children
in their custody and were, in the words of one affiant, “vicious racists.” In 1960,
the year after Jones was released, the Illinois legislature investigated allegations of
brutality at Sheridan. In 1973, following a consent judgment entered in a lawsuit
by Sheridan residents, the facility ceased operating as ajuvenile institution
entirely.
His life as an adult did not improve much. Jones entered the army at
nineteen, but he was discharged for “unsuitability” a little more than a year later.
Jones’s military records included a statement from his company commander,
l5
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Charles Pardee, which criticized Jones’s army performance. Specifically, it
provided that Jones had “contributed nothing” to the army, that he had “absented
himself” fi'om the army on numerous occasions, and that he had “no regard for the
military or its regulations,” “cannot accept responsibility,” and “in general is very
bad for the morale of this unit.”
The sworn affidavit of Ruby McDougle, Jones’s first wife, explains that
Jones was “not a good husband” and was “too unstable.” His daughters, Lisa and
Veronica, told Stapert that Jones had physically abused their mother, Ruby, while
they were growing up, and that he was not around very much. His second wife,
Yvonne Crosswell, revealed to Stapert that Jones had beaten her at least once a
week, even when she was pregnant. She said that he once kidnapped their
children, and she eventually lefi him because he beat the children. .
Several relatives and friends also reported, in affidavits and conversations
with investigators, that Jones had ofien been injail. Yvonne said that whenever
Jones was arrested, he would bail out and avoid recapture by relying on different
aliases. In fact, Jones told Stapert’s investigators that his aliases included Willie
Hooper, Astor Jones, Brandon Jones, Estes Lewis, Hambert Lewis, Wilbur May,
Jimmy McGee, Estes McGee and James McKay, and that his priors could “appear
in Chicago area; Denver; Jefferson County, Mo.; Los Angeles; Washington, DC;
and Gary, Indiana.” Jones confirmed to those investigators that he “sometimes
[6
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would get charged with something, make bond, change his name and never show
up again.” Besides his strong arm robbery conviction discussed at sentencing,
Jones was also convicted of contributing to the delinquency of a minor. His prison
records also describe over two dozen infi'actions for which Jones was disciplined
while incarcerated: among other infractions, Jones fashioned weapons by melting
razor blades onto ink pens, threw hot water and baby oil at a guard, and broke a
prison window by repeatedly hurling a typewriter at the glass.
Further, Yvonne, friend Orteal Tyler, and daughter Lisa revealed to
investigators that Jones made a living “hustling” as a pimp. Jones himself
admitted to those investigators that he ran “tourist houses” in Washington, D.C.,r
and Chicago, which were actually fronts for brothels where drugs and prostitution
were intertwined. Orteal didn’t remember Jones ever holding down a steady job;
instead, he made his money by pimping.
As for his mental health evidence, Jones presented to the state habeas court
affidavits or deposition testimony from four psychiatric experts. J ones’s experts
diagnosed him with PTSD, bipolar disorder, and decreased brain functioning.
Dr. Marlyne Israelian, a clinical psychologist specializing in psychotherapy
and neumpsychological evaluation, performed a series of neuropsychological tests
on Jones. Dr. Israelian opined, based on the test results and affidavits from his
fi'iends and family, that Jones exhibited a lifelong pattem of behavior consistent
l7
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with childhood-onset bipolar disorder. Israelian also stated that Jones’s results
were consistent with a diagnosis of PTSD, and that Jones’s history of physical,
sexual, and emotional trauma and exposure to the chemical perchloroethylene
contributed to deficient brain functioning. Unlike Dr. de la Sema, who had
examined Jones in prison in 1987 and considered him alert and intelligent,
Israelian found that Jones suffered from cognitive deficits. She opined that these
deficits -- particularly his poor judgment, lack of impulse control, and inability to
process new information -- contributed to his participation in the murder.
Dr. Elaine Walker, a clinical psychologist specializing in mental disorders,
reviewed the same materials as Israelian. She canvassed the environmental risk
factors in J ones’s history -- particularly the abuse he suffered as a child, and his
exposure to chemicals such as perchloroethylene through his work as a dry cleaner
-- and concluded that Jones met the clinical criteria for a life-time diagnosis of
bipolar disorder and PTSD. Dr. Pablo Stewart, a psychiatrist, conducted a clinical
interview with Jones and reviewed the documentary evidence, along with the
reports submitted by Walker and Israelian. Dr. Stewart too diagnosed Jones with
PTSD, Bipolar I Disorder,~ and related cognitive impairments. Furthermore,
Stewart concluded that J ones’s mental impairments significantly contributed to the
offense for which he was convicted. Finally, Dr. Tashjian, the army psychiatrist
18
Case: 11—14774 Date Filed: 01/28/2016 Page: 19 of 51
who evaluated Jones in 1963, explained that his 1963 findings were consistent with
the contemporary diagnoses of PTSD and bipolar disorder.
D.
In 2006, the state habeas court denied all of Jones’s claims for relief in an
order adopted verbatim from the State’s proposed order. Citing to Strickland 466
US. 668, the state court determined both that Jones’s attorneys performed
effectively in their investigation of mitigating evidence, and that the failure to
uncover evidence of Jones’s childhood abuse and mental health problems caused
Jones no prejudice.
As for performance, the state court credited Gary and Treadaway’s
testimony that they specifically had asked Jones about abuse. The court also found
that, when Gary and Treadaway asked Jones about his autobiographical articles
containing allegations of physical and sexual abuse, Jones replied that he was
simply telling the readers what they wanted to hear. Concerning Dr. Tashjian’s
1963 report, the state court credited Gary and Treadaway’s testimony that they
believed the report’s diagnosis would be more aggravating than mitigating.
As for the prejudice prong of Strickland, the state court discounted Jones’s
autobiographical allegations of sexual and physical abuse. The state court also
found that the mental health experts’ diagnoses of Jones were “the product of
unsupported evidence and errant analysis.” The state court noted that Dr. Stewart
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“completely disregarded” the diagnoses of the psychiatrists who had evaluated
Jones in prison, and that the facts upon which Dr. Stewart relied were “fraught
with speculation, error, clear bias, and do not present an accurate report of
Petitioner’s life.”
The state court also observed that Dr. Israelian had concluded that J ones’s
exposure to perchloroethylene had contributed to his mental deficiencies -- even
though the record provided little basis for one to discern the extent of his exposure
or even how long Jones had worked as a dry cleaner. The state court further
determined that Jones’s statement, given to police on the night of the crime,
strongly suggested that Jones was not an inactive or unwitting participant in the
murder —- which directly contradicted Dr. Israelian’s opinion that Jones’s disorders
made him vulnerable to manipulation by co-defendant Solomon.
Finally, the state court determined that Dr. Tashjian’s findings, based only
on his evaluation in 1963 and not on any new information about Jones, were the
product of “blatant speculation” and that Dr. Tashjian was “reaching to find any
corollary between his 1963 report and Petitioner’s current diagnosis.” The court
did not address Dr. Walker’s affidavit separately, but it nevertheless reached the
overarching conclusion that Jones had not been prejudiced because “the foundation
upon which Petitioner’s alleged mental health experts rely is patently biased and
incorrect.” The state habeas court therefore denied Jones’s Strickland claim.
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E.
In September 2008, the Georgia Supreme Court denied Jones’s application
for a certificate of probable cause to appeal.4 In 2009, Jones filed a federal habeas
corpus petition pursuant to 28 U.S.C. § 2254. On August 10, 2011, the United
States District Court for the Northern District of Georgia denied the petition in its
entirety. The district court rejected Jones’s ineffectiveness claim, concluding that
the state court had reasonably applied StrELand when it held that Jones had not
been prejudiced by counsel’s failure to investigate or offer the additional
mitigating evidence. The district court also rejected Jones’s Fifih Amendment
claim because it read the prosecutor’s comments not as an impermissible allusion
to J ones’s failure to testify but rather as a permissible “observation that despite the
numerous mitigation witnesses the petitioner presented to speak to his good
character, none provided any testimony that the petitioner expressed remorse.”
The district court granted Jones a COA on those two claims: (1) whether counsel
provided ineffective assistance during Jones’s sentencing retrial; and (2) whether
the State’s closing argument violated Jones’s F ifih Amendment privilege against
self-incrimination. We denied Jones’s motion to expand his COA.
II.
4 Since the Georgia Supreme Court declined to review the merits of the case, the Superior
Court’s denial of habeas relief is the final state-court determination of Jones’s Strickland claim.
& Newland v. Hall, 527 F.3d 1 I62, 1 I99 (I lth Cir. 2008).
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We review de novo the district court’s denial of habeas relief pursuant to 28
U.S.C. § 2254. Wellons v. Warden 695 F.3d 1202, 1206 (11th Cir. 2012). The
district court’s legal conclusions, and its resolution of mixed questions of law and
fact, also receive m review. 1d,
Since Jones’s habeas petition was filed after April 24, 1996, the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, these provisions govern his challenge:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d).
Under § 2254(d)(1)’s “contrary to” clause, we grant relief only “if the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529
US. 362, 413 (2000). Under § 2254(d)(1)’s “unreasonable application” clause, we
grant relief only “if the state court identifies the correct governing legal principle
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Georgia, challenging the constitutionality of Georgia’s method of execution. On
January 13, 2016, pursuant to the state’s motion, the Cobb County Superior Court
issued an order authorizing an execution window for Jones, and the Georgia
Department of Corrections scheduled his execution for February 2, 2016 at 7:00
p.m. EST.
The district court dismissed Jones’s civil rights complaint on January 21,
2016. It first held that Jones’s challenge to Georgia’s method of execution is time-
barred, since the statute of limitations on his claim ran on October 4, 2003, and
there was no “significant change” to the lethal injection protocol that would reset
the time clock. The district court also rejected his challenge on the merits. Based
on binding prior precedent from this Court, the district court held that Jones had
failed to state a claim under either the Eighth Amendment or the Due Process
Clause of the Fourteenth Amendment. E Terrell v. Bgson, 807 F.3d 1276 (1 1th
Cir. 2015); Gissendaner v. Comm’r, Ga. Dep’t of Com, 803 F.3d 565 (11th Cir.
2015); Gissendaner V. Comm’r, Ga. Dep’t of Corn, 779 F.3d 1275, 1283 (11th Cir.
2015); Wellons v. Comm’r, Ga. Dep’t of Corn, 754 F.3d 1260, 1267 (11th Cir.
Case: 11-14774 Date Filed: 01/28/2016 Page: 23 of 51
from [the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Q, We may overturn factual findings by the state
habeas court only when a petitioner produces “clear and convincing evidence” that
those findings are erroneous. 28 U.S.C. § 2254(e)(1). The Supreme Court has
stressed that “[a]s a condition for obtaining habeas corpus from a federal court, 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 existing law beyond any possibility for
fainninded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
As an initial matter, Jones argues that we should not apply AEDPA
deference to the state habeas court’s order because it was adopted verbatim from
the State’s proposed order.5 We are unpersuaded.
AEDPA mandates deferential review of any claim that a state court
“adjudicated on the merits,” 28 U.S.C. § 2254(d), and does not impose any specific
requirements on how a state court should announce its decision. Jones does not
5 Jones suggests, at one point, that the adoption of the State’s proposed order also violated his
due process rights. it is unclear from the briefs to what extent this argument is separate and
distinct from the petitioner’s claim that the habeas court’s order does not merit AEDPA
deference. To the extent this is a distinct substantive claim, we decline to consider it because we
do not review arguments not included in the COA. Williams v. Allen, 598 F.3d 778, 795 (l lth
Cir. 2010); Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (per curiam). The
district court granted Jones a COA with respect to only his Strickland claim and his F ifih
Amendment claim regarding the prosecutor’s closing argument. We subsequently declined to
expand the COA. Moreover, even if Jones had raised this claim as part of his motion to expand
the COA, this claim does not warrant a COA. & Rhode v. Hall 582 F.3d 1273, 1281 n.4 (1 1th
Cir. 2009).
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and cannot deny that his claims were adjudicated on the merits; the state court’s
order undeniably rejected Jones’s Strickland claim on the merits, not on any
procedural ground. Indeed, the state court’s order extensively analyzed his
Strickland claim over the course of ninety pages. Considering that a summary
disposition of a Strickland claim qualifies as an adjudication on the merits, fl
lierrell v. Hall, 640 F.3d 1199, 1224 (11th Cir. 2011); Wri tv. Sec’ De ’t of
9211., 278 F.3d 1245, 1255‘ (11th Cir. 2002), we can discern no basis for saying
that a state court’s fuller explanation of its reasons -- albeit reasons drafied for the
court by the State -- is not entitled to AEDPA deference.
Moreover, we have considered and rejected similar arguments in the past. In
Rhode v. Hall for example, a habeas petitioner challenging his death sentence
argued that the state court’s habeas decision was not entitled to deference. $3 582
F.3d 1273, 1281 (11th Cir. 2009). Like Jones, Rhode “complain[ed] that the state
habeas court adopted verbatim the State’s proposed order,” and that the order
“uncritically incorporate[d]” the State’s evidence and “mischaracterizations of the
evidentiary record.” I_d. Thus, by Rhode’s lights, the order was not “a fair and
impartial assessment of the facts and law,” and its findings should have been
rejected as unreasonable determinations of fact pursuant to § 2254(d)(2) and (e)(1).
1; A panel of this Court in m rejected that claim, noting that “the record
clearly reflects that both Rhode and the State had the opportunity to'present the
24
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state habeas court with their version of the facts,” and concluding that, “[d]espite
the fact that the state habeas court adopted the State’s facts verbatim, these
findings of fact are still entitled to deference from this court.” is; at 1282.
Jones cites as primary support for his position Jefferson v. Upton, 560 U.S.
284 (2010). In Jefferson, the Supreme Court applied the pre-AEDPA version of
§ 2254 and held that a state court had denied a death-penalty petitioner a fill, fair,
and adequate hearing, where: (1) the state court had adopted factual findings
drafted exclusively by the State’s attorneys pursuant to an 1% request from the
state-court judge; (2) the state court had failed to notify the petitioner of the request
made to opposing counsel; and (3) the proposed findings recounted evidence from
a nonexistent witness. _S_e§ 560 U.S. at 292. 1% offers no guidance here,
however, because it is both legally and factually distinguishable.
First, Jefi‘erson never could have held, nor did it presume to hold, that this
kind of adopted order is not entitled to AEDPA deference. Jefferson addressed a
claim arising under the pre-AEDPA version of § 2254; the Jefferson Court was
therefore operating under a different statute than the one controlling this case.
Moreover, even absent that legal distinction, the facts of this case are critically
different from Jefferson. There, the state court adopted a proposed order that it had
obtained m from the State, without notice to Jefferson. Here, notably, the
state court requested that both Jones an_d the State prepare proposed orders. The
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court conducted an evidentiary hearing in August and September 2004, at which
Jones was represented ably by his habeas counsel, who presented several witnesses
and 125 exhibits spanning about 5,000 pages. The state court then took a year and
a half to consider the party’s submissions and only issued its order denying habeas
relief in March 2006. In stark contrast to Jefferson the circumstances here
demonstrate that Jones received a full and fair hearing on all‘of his habeas claims.
111.
J ones’s primary claim on appeal is that the state court unreasonably applied
Strickland when it concluded, first, that his trial counsel’s investigation of
mitigating evidence was not deficient and, second, that there was no reasonable
probability that the additional mitigating evidence discovered by J ones’s habeas
counsel would have altered the outcome of his trial. To prevail under Strickland
and AEDPA, Jones first has to demonstrate that every fainninded jurist would
conclude that counsel’s performance was so deficient that it “fell below an
objective standard of reasonableness,” 466 US. at 688. The Strickland inquiry is
“highly deferential” and evaluates “all the circumstances . . . . from counsel’s
perspective at the time.” 1; at 688-89.
Then, to meet his burden on Strickland’s second prong under AEDPA, Jones
also has to show that every fairmindedjurist would conclude “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” 1g, at 694. Jones need not show that
counsel’s conduct more likely than not altered the outcome of his penalty
proceeding; “[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” 15;; _se_e Brownlee v. Haley, 306 F.3d 1043, 1069
(11th Cir. 2002); Mincey v. Head, 206 F.3d 1106, 1143 (11th Cir. 2000). When, as
here, the claim concerns the failure to present mitigating evidence, “we reweigh
the evidence in aggravation against the totality of available mitigating evidence” to
determine whether the petitioner suffered prejudice. Wiggins v. Smith, 539 US.
510, 534 (2003 ). “[W]hat matters is not merely the number of aggravating or
mitigating factors, but their weigh .” Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d
1217, 1240-41 (11th Cir. 2010). In addition, since this case arises in Georgia,
where the death penalty requires a unanimous jury verdict, prejudice exists where
every fainninded jurist would perceive “a reasonable probability that at least one
juror would have struck a different balance.” fliggifi, 539 US. at 537. Notably, a
court “may decline to reach the performance prong of the ineffective assistance test
if convinced that the prejudice prong cannot be satisfied.” Waters v. Thomas 46
F.3d 1506, 1510 (11th Cir. 1995) (citing Strickland 466 US. at 697).
A.
As an initial matter, we assume without deciding, for purposes of this
appeal, that the state habeas court unreasonably applied Strickland by finding that
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J ones’s counsel performed adequately in preparing for and presenting mitigating
evidence at the penalty phase of trial. We ground this assumption on the fact that
counsel became aware of several avenues of potential mitigating evidence to
pursue -- through, for example, the defendant’s own personal essays, a letter from
previous counsel’s investigator, and a mental health evaluation found in the
defendant’s military records -- yet counsel failed to follow up on any of these red
flags. On the other hand, however, the state court found -- and there is evidence in
the record to support the findings - that Jones told his attorneys that some of the
stories in his writings were fabricated, and that Jones never told his attorneys about
his childhood'abuse, even though they had questioned him about it. On this mixed
record, we need not resolve the question of whether the performance of Jones’s
counsel was deficient, let alone whether the state habeas court’s determination of
adequate performance was an unreasonable application of Strickland. As we
determine below, Jones has failed to establish that the state habeas court’s
Strickland prejudice determination was an unreasonable one. & Windom v.
Sec’y, Dep’t of Corn, 578 F.3d 1227, 1248 (1 1th Cir. 2009) (“We need not
determine whether counsel’s limited investigation into Windom’s background and
mental health constituted deficient performance under the first prong of Strickland
because we conclude that, even assuming counsel performed deficiently, Windom
was not prejudiced thereby.”); Hall v. Head 310 F.3d 683, 699 (11th Cir. 2002)
28
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(“[A]lthough there is evidence in the record to support the district court’s finding
of deficient performance, we need not and do not ‘reach the performance prong of
the ineffective assistance test [because we are] convinced that the prejudice prong
cannot be satisfied.” (quoting Strickland 466 US. at 693)).
B.
We turn then to prejudice and weigh the totality of the aggravating evidence
against the totality of the mitigating evidence, both what was presented at Jones’s
trial and what was discovered for his state habeas proceeding. Bottoson v. Moore
234 F.3d 526, 534 (11th Cir. 2000). On the totality of this evidence, we conclude
that the state court’s determination that Jones did not raise a reasonable probability
of a different result is not contrary to or an unreasonable application of Strickland.
To begin with, we do not dispute that some of J ones’s proffered mitigating
evidence, both about his childhood and his mental health, could have been helpful
to his arguments at sentencing. Indeed, evidence of Jones’s psychiatric problems
may have bolstered the argument that Solomon, not Jones, was the driving force
behind the decision to rob the store. Further, the details regarding Jones’s
childhood with his abusive uncle and sexually abusive cousin and at a deplorable
juvenile detention center may have supported the argument that Jones was not fully
culpable for his actions, and may have cast him in a more sympathetic light.
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However, Jones’s reliance on this “new” mitigating evidence suffers from
several substantial flaws. First, by introducing this evidence, Jones’s counsel V
would have opened the door to a vast array of aggravating evidence that likely
would have overwhelmed the balance of mitigating evidence in this case. Sic
Wong v. Belmontes, 558 US. 15, 26 (2009) (concluding that petitioner could not
show prejudice since the proposed mitigating evidence would have opened the
door to strong aggravating evidence); Evans v. Sec’y1 Dep’t of Corn, 703 F.3d
1316, 1327 (11th Cir. 2013) (en banc) (same); Puiatti v. Sec’y, Fla. Dep’t of Corn,
732 F.3d 1255, 1289 (11th Cir. 2013) (same); Pooler v. Sec’y, Fla. Dep’t of Corn,
702 F.3d 1252, 1275 (11th Cir. 2012) (same); Reed v. Sec’y, Fla. Deg’t of Corn,
593 F.3d 1217, 1246 (11th Cir. 2010) (same); Windom v. Sec’y, Dep’t of Conn,
578 F.3d 1227, 1251 (11th Cir. 2009) (same); Wood v. Alleg, 542 F.3d 1281,
1311-12 (11th Cir. 2008) (same); Gaskin v. Sec’x, Dep’t of Corn, 494 F.3d 997,
1004 (11th Cir. 2007) (same); Robinson v. Moore 300 F.3d 1320, 1350 (11th Cir.
2002) (same); Second, the mitigating mental health evidence was largely rejected
by the state habeas court, and was subject to serious attack and meaningful
contradiction.
Some of the most damaging evidence in the full habeas record came from
Jones’s family and friends. His daughters, Lisa and Veronica, revealed that Jones
had beaten their mother, Ruby, who admitted that Jones was “not a good husband,”
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and “too unstable.” His second wife, Yvonne, went even further in describing him
as violent: she said Jones once beat a man with a hammer because he commented
on Yvonne’s outfit; Jones beat Yvonne at least once a week, even when she was
pregnant, once with a 2x4 board until she passed out in the bath tub; Jones beat her
children; Jones would make the children stand in the corner for hours and beat
them if they moved; and Jones had the children watch while he beat her.
His military record likewise failed to cast him in a positive light. He was
discharged from the army after about a year, and his company commander
expressly said that Jones had “contributed nothing” to the army, that he had
“absented himself” from the army on numerous occasions, and that he had “no
regard for the military or its regulations,” “cannot accept responsibility,” and “in
general is very bad for the morale of this unit.” Plainly, this evidence would have
undercut any plea for mercy that Jones would have sought to make on a fillin
habeas record.
Nor would the portrait of Jones as being submissive to Solomon have been
left untouched. Aside from the details about the physical abuse he unleashed on
his family, much of the testimony would have painted Jones as a seasoned criminal
who knew how to work the system. Yvonne, friend Orteal, and daughter Lisa.
disclosed Jones’s career as a pimp, and Jones himself admitted that he ran “tourist
houses” in DC. and Chicago where “drugs and prostitution were intertwined.”
3|
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Yvonne also explained that whenever Jones was arrested, he would bail out and
disappear under one of the nine different aliases found in the habeas record.
The habeas record also includes damning evidence of the numerous and
serious prison infractions Jones has committed since he has been on death row.
One report detailed that Jones had hurled a typewriter repeatedly at a window until
both the window and the typewriter had been broken. Another said that Jones had
injured a prison guard by throwing hot water and baby oil on the guard’s face and
shoulder. In yet another, a guard found Jones in possession of two ink pens with
razor blades melted onto them as weapons. There are also many reports detailing
other instances of insubordination, including times he cursed at or threatened the
guards or spat in their faces, as well as times he failed to follow instructions or
possessed contraband.
The image of Jones found in the habeas record stands in stark contrast to the
one counsel actually portrayed at sentencing. There, counsel relied on residual
doubt, by using the evidence of the crime itself to suggest that Jones had not been
the shooter and calling a witness from J ones’s prior assault conviction to testify
that the victim, and not Jones, had actually been the aggressor. Defense counsel
also introduced the testimony of family and pen pals to demonstrate that J ones’s
death would devastate his family and that Jones had reached out and touched the
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2014). On January 25, 2016, Jones appealed from the decision of the district court
dismissing his § 1983 complaint.'
B.
After we had issued our decision affirrning the denial of Jones’s habeas
petition (Jones III), another panel of this Court decided Wilson v. Warden, Georgia
Diagnostic Prison, 774 F.3d 671 (2014). In that case, the Wilson panel relied on
our amended decision in Jones 111 to observe that “the one-line decision of the
Supreme Court of Georgia denying Wilson’s certificate of probable cause is the
relevant state-court decision for our review because it is the final decision ‘on the
merits.”’ Lc_l._ at 678. On July 30, 2015, our Court granted rehearing Q M in
Wilson, vacated the panel opinion, and directed the parties to address Q banc:
[Whether] a federal habeas court [is] required to look through a state
appellate court’s summary decision that is an adjudication on the
merits to the reasoning in a lower court decision when deciding
whether the state appellate court’s decision is entitled to deference
under 28 U.S.C. § 2254(d)[.]
Oral argument was held by our Court Q banc on October 20, 2015. Soon
thereafier, we directed counsel to file supplemental briefs addressing a subsidiary
question:
1 Jones’s appeal from the district court’s rejection of his § 1983 complaint asks our full Court to
review initially the matter en banc. He has also filed an Emergency Motion to Stay Execution
until the Court rules on his en banc petition. We will address these motions by separate order.
Case: 11—14774 Date Filed: 01/28/2016 Page: 33 Of 51
lives of others while incarcerated. Put simply, they sought to humanize him -- an
effort that would have collided with a largely unforgiving record.
To the extent Jones now argues that the State could not have introduced any
of the “new” aggravating evidence because it M do so, we are unpersuaded.
As Jones acknowledges, his counsel did not delve into his background, character,
or mental health in the sentencing retrial. Presenting this kind of evidence would
have sharply changed the landscape of the case, for both Jones and the State. The
Supreme Court has clearly said that “the reviewing court must consider §l_l the
evidence -- the good and the bad -- when evaluating prejudice.” mpg 558 U.S. at
26 (emphasis added). And the permissible scope of the State’s aggravating
evidence depends in part on the kinds of mitigation the defense introduces. See
fliggins, 539 U.S. at 537 (noting that had Wiggins’s counsel introduced the
“powerful mitigating narrative” developed in the habeas proceeding, “Wiggins
does not have a record of violent conduct that could have been introduced by the
State to offse ” it) (emphasis added»; w m, 732 F.3d at 1290
(recognizing that the Strickland calculus includes “the aggravating circumstances
actually found, or that would be found on remand” (emphasis added».
Here, had J ones’s counsel attempted to offer a more detailed presentation
about his childhood and life history, it seems to us that there is “not just a
reasonable probability, but a virtual certainty that [Jones’s] ‘good’ mitigation
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evidence would have led to the introduction of ‘bad’ evidence,” too. gee_d, 593
F.3d at 1246. Indeed, some of the very witnesses he proffered at the state habeas
proceeding are also the source of some of the aggravating material we’ve described
-- including his daughter Veronica, his friend Taylor, and his first wife, Ruby, all
of whom the State could have used to paint Jones as a violent, manipulative
criminal. What’s more, further probing into Jones’s background and mental health
could have opened the door to a strong rebuttal by the State based not only on
additional character witnesses, but also on J ones’s extensive and damning record
from prison and the military. & Cummings v. Sec’y for Dep’t of Corn, 588 F.3d
1331, 1368-69 (11th Cir. 2009); m Mg, 558 US. at 25 (recognizing that
“heavyhanded,” “more-evidence-is-better” attempt to portray defendant in positive
light can invite strong negative evidence in rebuttal). Thus, we do not think the
state habeas court reached a result that was contrary to or an unreasonable
application of Strickland when it found it likely that the presentation of additional
mitigating evidence would have dredged up substantial, additional aggravating
evidence that would not have tipped the scales in J ones’s favor.
We are also unpersuaded by J ones’s argument that his trial counsel’s failure
to investigate and present mental health mitigation evidence undermined
confidence in the outcome of the trial. Jones’s habeas mental health experts claim
that Jones suffers from PTSD, bipolar disorder, and brain dysfunction, and that
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these disorders affected his behavior on the night of the murder. But as the record
shows, the state court disbelieved much of the testimony from Jones’s four mental
health experts -- Dr. Israelian, Dr. Stewart, Dr. Tashjian, and Dr. Walker -- and we
are hard-pressed to say that the state court was unreasonable in doing so.
For starters, the state court gave two reasons for discounting Dr. Israelian’s
diagnosis that Jones suffered from PTSD, bipolar disorder, and decreased right-
hemispheric brain functioning. First, the state court found that there was
insufficient evidence to support her Opinion that Jones’s work as a dry cleaner, and
his exposure to the neurotoxic chemical perchloroethylene, contributed to his
neuropsychological maladies. It thus found that “Dr. Israelian has proclaimed a
professional opinion well outside her area of expertise and based on unsupported
factual findings, rendering her entire opinion questionable.” Specifically,
Israelian’s report provided that “[i]t appears that the deficits associated with Mr.
Jones’s Bipolar disorder, which manifested very early, were exacerbated by years
of psychological, physical and sexual abuse, in addition to exposure to neurotoxic
dry cleaning agents.” However, Israelian admitted that she did not have Q!
information about the length or intensity of his exposure while employed at a dry
cleaners. Indeed, the record is barren on these points.
The state court was also unpersuaded by Israelian’s explanation of the
connection between Jones’s mental health issues and his participation in the crime,
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since Jones’s own statements, taken directly after the crime by law enforcement
officers, undermined her view of him as an unwitting participant in the homicide or
merely a tool of co-defendant Solomon. On this issue, the state court found that
“Dr. Israelian’s diagnoses and conclusions regarding Petitioner’s culpability of the
crime are lacking in credibility.” As his statement to the police revealed, Jones
knew that he and Solomon were entering the convenience store with the intent to
commit burglary or armed robbery; he was armed with a crowbar; he admitted that
he and Solomon had cased the store for a period of time; and he instructed
Solomon where to hide the vehicle during the commission of the crime.6 Israelian
5 Relevant portions ofJones’s statement to the police include these:
D [Police officer questioning Jones directly after the murder]: Alright, tell me what were
you doing inside that store?
M [Jones]: I wasn’t, we wasn’t gonna have to burglarize. We were thinking about
burglarizing it until we got in there and saw the place was empty.
*Itt
M: When I saw the place was open like it was when he [Solomon] come back see, [just
just told him, 1 said park the truck. I was talking about if he parked the truck in front of
the place. If we saw, we saw a police officer go by, probably shoot if he was going the
other way. I thought about you know, if the truck was parked in front of the place, never
be able to explain this here. So, first we was gonna park over by some bulldozers over
there. And then that was too far away and we had to start across the street then somebody
went by. And anyway, I looked up in there and there was a little driveway right up into
that little forest there. And that way we would be able to you know, load up with the beer
and everything and take it straight out to the side of the place there, you know, come out
the front that way without having to go out to the street.
*t*
D: What did you think about the door being open and the car being parked in front?
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was questioned at her deposition about whether Jones had admitted in his post-
arrest statement that he told Solomon where to park, and she said, “Based on what
I just read, it would appear that way; but based on the entire transcript and his
entire interview, there is a great deal of disorder and chaos.” She also steadfastly
maintained that J ones’s plan on the night of the murder was to buy marijuana.
M: Tell you the truth. I thought about [g]oing, is 1 got a little scared and what I was
wanting to do, i wasjust gonna punch the cash register, stash the money and run...
##‘3
M: ...We had been looking at the place quite a while you see.
*#*
D: ...I‘m saying why did you decide that was the store to go into rather than the store
down the road? Why that store?
M: It was the only one. Some people had just come out of there. They didn’t, wait a
minute. i didn’t see the people go in there. When we come by there the people were
coming out of there. Coming out of there. The gal had kinda blonde, not blonde but real
real light hair.
D: Alright. What did they do?
M: They was coming out. That time we was passed the place. And coming back the
second time that’s when ljumped with the crowbar. l figured that the you know, the
store, i figured they had closed the place up or something. That’s when ljumped out with
the crowbar. You know when I saw the place was open it scared me a little bit.
[D]: Did you think they had forgot to open, close and lock the doors?
M: Yea. I run back you know. over there by the bulldozers. As i was going by the
bulldozer I saw the little cubby hole up in there and I told him he could park up in there
and we wouldn’t have to go across the street[.]
D: You told Van driving? Was he driving or were you driving?
M: He was driving. I think l better shut up. i see l’m in a first class mess here.
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Relying largely on these two matters .- which went to the etiology of
Israelian’s diagnosis, and her account of the crime -- the state court found
incredible Israelian’s testimony. It also discounted the opinions of Jones’s
remaining three habeas experts, who reached opinions consistent with Dr.
Israelian’s. It is relatively easy, under Georgia law, for a factfinder to disregard an
expert’s opinion. & Reynolds Const. Co. v. Reynolds, 459 S.E.2d 612, 614 (Ga.
App. 1995) (“‘[Expert] testimony is not conclusive or controlling and is submitted
for whatever the [factfinder] considers it to be worth.” (alterations in original)
(quoting Wilson v. Prof’l Ins. C09, 261 S.E.2d 450, 451 (Ga. App. 1979));
My 261 S.E.2d at 451 (“The opinion of an expert witness is not conclusive
upon the [factfinder]. Such testimony is intended to aid them in coming to a correct
conclusion upon the subject; but the [factfinder] is not bound by such opinion, and
can disregard it. The [factfinder] may deal with such testimony as [it] see[s] fit,
giving credence to it or not, and [it] may do so without rhyme or reason.” (internal
quotation marks and citations omitted). What’s more, we’ve accepted a state
court’s findings that an expert is not credible when that expert fails to seek out and
consider “all possible evidence.” Callahan v. Campbell, 427 F.3d 897, 936 n.27
(1 1th Cir. 2005). At all events, on the record, we cannot find unreasonable the
state court’s conclusion that the experts’ opinions appear to ignore -- at least on
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their face -- the admissions contained in Jones’s police statement, and even more
significantly, are strongly undercut by other evidence in the habeas record.
Thus, for example, Israelian opined that Jones’s deficits had “a direct
bearing on his involvement in, and culpability for, the murder of Mr. Tackett” and
caused the events to “spiral[] out of control on the night of Mr. Tackett’s murder.”
She said that J ones’s “poor judgment and lack of impulse control involved him in a
criminal excursion with a man he had only just met,” and that with the “new
feedbac ” of Solomon’s ill intentions and “the presence of an employee at a
business he believed would be empty . . . , Mr. Jones had substantial difficulty
quickly processing the new information, shifting his cognitive set accordingly,
redirecting his focus and devising a new strategy.” She emphasized at the
deposition that Jones has “deficits in goal-directed behavior, . . . doesn’t perceive
new information, doesn’t process new information, doesn’t incorporate, doesn’t
change plan according to new information.”
However, it was not unreasonable for the state court to cast heavy doubt on
the notion that Jones was unable to process new information. As we’ve discussed,
Jones’s post-arrest statement alone suggests that on the night of the murder, Jones
was able to direct Solomon to park the car in a place that would make it easier and
quicker to abscond with the stolen goods. Further, the habeas record contains other
evidence that squarely contradicts Israelian’s account of J ones’s cognitive
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deficiencies. In 1987, for example, a prison psychologist expressly noted that
Jones appeared alert and intelligent. The habeas record also establishes Jones’s
tendency to use aliases whenever he was arrested, to skip out on bail, and to
regularly change locations and jobs. He also became a prolific writer while in
prison, and developed a group of pen pals who testified on his behalf at trial.
Nor was it unreasonable for the state court to cast some doubt on the opinion
that Jones lacked the ability to control his impulses. As the post-arrest statement
indicates, he and Solomon had the presence of mind to wait for the store to empty
out before they went in, and, again, he came prepared with a crowbar. The habeas
record further reveals that Jones had the control and wherewithal to own and
operate brothels, fronting as “tourist houses” that provided prostitution and drugs
in two different cities. In addition, his prison record detailed that he had carried
out a plan to make weapons by melting down razor blades.
The state court also relied on the reports of the prison psychologists, found
in the habeas record, to highlight concerns about the diagnoses of J ones’s habeas
experts. In 1982, Jones saw psychiatrist Dr. Mark Hutto because Jones felt he was
being treated poorly by the prison guards. Dr. Hutto gathered a social history from
Jones and concluded, “[a]side from the patient being a rather obnoxious and
demanding personality who has no feeling for the inaccuracy and inefficiencies in
a bureaucratic system, this patient has no evidence of psychiatric illness . . . [;]
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there is no evidence that this patient’s demands are motivated by psychotic
processes and he is not at this time in need of psychiatric treatment.” Jones was
evaluated again in 1987, by psychologist Dr. Marcelo de la Sema, because Jones
wanted to establish a “therapeutic” relationship. After speaking with Jones, Dr. de
la Sema found that Jones “was alert, highly verbal, [and] intelligent,” “was not
satisfied with any of the answers provided by the examiner, and in a highly skillful
manner . . . would phrase questions so as to elicit excessive attention to his present
concerns.” Dr. de la Sema also noted that Jones “seems to possess an irascible
temperament, an edgy irritability, and a fractions and retaliatory diSposition.” Dr.
de la Sema opined, however, that Jones “was not suffering from any severe clinical
symptomology,” such as a mood or anxiety disorder, but rather “presented a
picture of a deeply ingrained and pervasive . . . [m]ixed personality disorder, with
prominent histrionic, paranoid, and passive-aggressive features.” Later in 1987,
Jones met with psychiatrist Dr. Cassandra Newkirk about sleeping problems. Dr.
Newkirk reiterated that previous evaluators had deemed Jones “very manipulative”
and to have a mixed personality disorder. She did not otherwise diagnose him.
None of the prison doctors diagnosed Jones with any of the disorders found
by J ones’s habeas experts. While we recognize that the evaluations from the
prison doctors did not appear to be based on neuropsychological testing or a full
record of J ones’s life history, we cannot deny that they were performed closer in
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time to the murder, long before Jones had developed the habeas record. Nor can
we engage in a battle of the experts at this stage of the case. We can conclude,
however, that based on the full habeas record, including the reports filed by the
prison psychologists, that the state court was not unreasonable in discounting, at
least in some measure, the strength of Jones’s mental health experts. We
recognize, as the Fifth Circuit has, that a state habeas court is not necessarily
responsible for resolving a dispute between the experts. & Pondexter v. Dretke
346 F.3d 142, 150 ml 1 (5th Cir. 2003). However, as the Fifth Circuit noted, a
state habeas court reviewing an ineffectiveness claim like this one must “see what
evidence might have been adduced and . . . gauge any prejudice resulting fiom trial
counsel’s failure to present it. ['I’hus, the state court’s] rejection of the evidence is
relevant because it casts doubt on its persuasiveness and hence its force before the
jury.” Ll. (quoting Belyeu v. Scofl, 67 F.3d 535, 542 (5th Cir. 1995)).
This is not a case like Porter v. McCollum 558 US. 30 (2009), where the
state postconviction trial court utterly disregarded Porter’s mental health evidence
in its discussion of nonstatutory mitigating evidence. Li. at 43 n.7. Here, the state
habeas court clearly considered J ones’s mental health evidence, identified real
problems with this evidence, and concluded that it would not have changed the
outcome of Jones’s trial.
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[W]hether the denial of an application for a certificate of probable
cause by the Georgia Supreme Court is an adjudication on the merits
for purposes of § 2254(d).
An e_n banc decision in the Wilson case is still pending in the Court.
Just last week, on January 21, 2016, Jones moved this Court to stay his
execution pending the resolution of Wilson by our Q banc Court. That same day,
he also moved this Court to recall the mandate in Jones III so that we could
reevaluate his original habeas petition after Wilson is decided. The essence of his
argument in both motions is that the Wilson decision is “likely to [] reverse the
case law governing federal habeas review” that we applied in Jones 1H and that,
under the “look through” approach that Jones anticipates we will adopt in m,
we would likely have found the ineffective-assistance-of-counsel claim in his
original habeas petition meritorious.2
We address these two motions today.
11.
A.
The Supreme Court has recognized that the federal courts of appeals “have
an inherent power to recall their mandates, subject to review for an abuse of
2 The habeas petition that we addressed in Jones 111 contained a second claim relating to the
prosecutor’s alleged comments about Jones’s failure to testify during closing arguments. &
Jones 111, 753 F.3d at 1194. However, that claim was denied on the merits in a written decision
by the Georgia Supreme Court on direct appeal. 53 Jones [1, 539 S.E.2d at 159-60. Jones does
not argue that our review of that claim implicated the issues to be decided in Wilson.
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Nevertheless, Jones advances several reasons why some of the aggravating
evidence developed in the habeas proceeding would not be admissible at a new
sentencing trial. We remain unpersuaded.
At the outset, we observe that the state habeas court considered all of the
aggravating evidence in its Strickland analysis, implicitly finding that this evidence
would be admissible under Georgia law. In addition, it expressly found that
“Petitioner’s misconduct in prison . . . and his many prior criminal acts would be
sufficiently reliable sources of information . . . for the State to rely upon in
questioning Petitioner’s character witnesses.” Because state courts are the ultimate
expositors of state law, we are bound by state-court determinations on state-law
questions. Q Estelle v. McGuire 502 US. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state-
law questions”); Mullaney v. Wilbur, 421 US. 684, 691 (1975) (observing that
federal courts are bound by state-court constructions of state law “except in
extreme circumstances” (citation omitted»; Cargill v. Tmin, 120 F.3d 1366, 1381
(11th Cir. 1997) (“We are not at liberty to challenge [a] state court determination
of state law.”). Put another way, “[a] state's interpretation of its own laws or rules
provides no basis for federal habeas corpus relief, since no question of a
constitutional nature is involved.” McCullough v. Singletg, 967 F.2d 530, 535
(11th Cir. 1992).
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Thus, to the extent that Jones raises attorney work-product privilege or other
state-law challenges to the introduction of this evidence, we need not address these
claims further. But even if we did, “a habeas petitioner alleging that his counsel
made unreasonable strategic decisions waives any claim of privilege over the
contents of communications with counsel relevant to assessing the reasonableness
of those decisions in the circumstances.” Johnson v. Alabama, 256 F.3d 1156,
l 179 (11th Cir. 2001 ). This principle applies in Georgia, where a party may waive
work-product protection by providing documents to an adversary. .853 McKesson
Com. v. Green, 610 S.E.2d 54, 56 (Ga. 2005) (“[A corporation] waived work-
product protection when it provided the audit documents to the SEC .”); gm
Wellstar Health 815., Inc. v. Jordan, 743 S.E.2d 3‘75, 380 (Ga. 2013) (“A party
may waive work product protection”). Applying the federal work-product rule,
the Supreme Court has concluded that a defendant,
by electing to present the [defense] investigator as a witness, waived the
privilege with respect to matters covered in his testimony. Respondent can
no more advance the work-product doctrine to sustain a unilateral
testimonial use of work-product materials than he could elect to testify in his
own behalf and thereafter assert his Fifth Amendment privilege to resist
cross-examination on matters reasonably related to those brought out in
direct examination.
United States v. Nobles 422 U.S. 225, 239-40 (1975) (footnote omitted). Here, by
bringing this habeas action first in state court, and then again in federal district
court, Jones has waived any current or fiiture privilege or work-product protection
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over the Stapert file. We do not see how the petitioner could use the contents of
the Stapert file offensively to establish a Strickland violation and then turn around
and block the contents of the very same file to the extent it contained -- as it did -
many aggravating circumstances too.
As for any federal constitutional hearsay claim Jones raises, we’ve recently
rejected a similar argument in a death penalty habeas case. In Muhammad v.
Sec’y, Fla. Dep’t of Com, 733 F.3d 1065, 1073 (11th Cir. 2013), we relied on
Williams v. New York 337 US. 241 (1949), to hold that “hearsay is admissible at
capital sentencing hearings.” We noted that while “a defendant does not have a
right to confi'ont hearsay declarants at a capital sentencing hearing, . . . he does
have a right to rebut information relevant to his character and record that is
admitted against him at the sentencing hearing.” m: at 1074. We explained that
“[a]lthough the law of capital sentencing has changed in some respects since
Williams the Supreme Court of the United States has never questioned [its]
precise holding.” I_d., at 1074 (internal quotation marks and citation omitted).
Because a state habeas court’s interpretation of the federal Constitution is
constrained only by clearly established Supreme Court law (i.e., Williams , we
cannot find unreasonable the state court’s determination that the contents of the
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Stapert file was admissible hearsay] This is especially true since Jones has given
us no reason to believe that he was denied access to the witness interviews, prison
disciplinary and mental health reports, or military records in the Stapert file; that
he would not have the opportunity to cross-examine Stapert or even family and
friends who were interviewed by Stapert (many of whom Jones himself relies on in
this proceeding); or that he could not call his own witnesses.
Jones also says that the aggravating information found in the Stapert file and
other records is not sufficiently reliable to be admissible. We’ve said that in
considering whether to admit prior bad act evidence at capital sentencing, “the
relevant inquiry for information at sentencing is whether it is reliable.” Tucker v.
Kemp, 762 F .2d 1480, 1487 (11th Cir. 1985) (en banc), vacated 474 U.S. 1001(1985), reinstated, 802 F.2d 1293 (11th Cir. 1986), cert. denied 480 US. 911
(1987). Although we haven’t defined “reliable” in this context, we know that prior
convictions are admissible._ as Zant v. Stephens, 462 US. 862, 873 (1983); Zant
7 As the Supreme Court has said, the phrase “‘clearly established Federal law’ . . . refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 US. at 412. As a result, any relevant case
law we’ve developed - including, Egg, our decision in Profiitt v. Wainwright, 685 F.2d 1227,
1254 (l lth Cir. 1982), that a capital defendant “ha[s] a constitutional right to cross-examine” a
mental health expert at sentencing “before the doctor‘s report c[an] be used in determining
sentence” - does not apply to the state court decision here. Indeed, “[a] circuit court may . . .
look to circuit precedent to ascertain whether it has already held that the particular point in issue
is clearly established by Supreme Court precedent. However, circuit precedent may not be used
to refine or sharpen a general principle of Supreme Courtjurisprudence into a specific legal rule
that [the Supreme Court] has not announced.” Downs v. Sec’y, Fla. Dep’t of Corn, 738 F.3d
240, 256-57 (1 lth Cir. 2013) (alteration in original) (internal quotation marks and citation
omitted).
46
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v. Stephens, 297 S.E.2d 1, 2-4 (Ga. 1982). We’ve also found that a defendant’s
commission of a prior, unadjudicated crime of forcible rape (unlike statutory rape)
would be admissible during capital sentencing based on a rape victim’s testimony.
Devier v. ZanL 3 F.3d 1445, 1464-65 (11th Cir. 1993). Thus, we have no basis to
find unreasonable the state court’s conclusion that Jones’s prior convictions for
strong arm robbery and contributing to the delinquency of a minor, his repeated
physical abuse of his family (through testimony from these very pe0ple), and his
prior criminal conduct and use of aliases (again also drawn from the testimony of
family members and friends) would be sufficiently reliable sources of information
for the state to rely upon in rebutting Jones’s character evidence.
Nor can we find unreasonable the state habeas court’s conclusion that his
military records, which document at length his misconduct while in the army, and
his prison records, which document his serious misconduct while on death row,
would also be admissible. Sic mile; 702 F.3d at 1276 (considering in
aggravation military records showing that “Pooler was frequently disciplined for
offenses, mostly absences without leave, and was found guilty in a court-martial
for using disrespectful language to a superior officer and for refusing to obey
orders and sufi'ered a reduction in rank”); Cummings, 588 F .3d at 1369
(considering as aggravation “the evidence from Cummings’s North Carolina prison
file of Cummings’s repeated involvement in violent incidents while in prison”).
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But even if we could say it was unreasonable for the state court to conclude
that this evidence was admissible substantively - and on this record we cannot - it
is undeniable that a party may impeach an expert witness with materials the expert
relied upon in reaching his opinion, or with materials that draw his very opinion
into question. Sgt; Orkin Exterminating Co. v. McIntosh, 452 S.E.2d 159, 165 (Ga.
Ct. App. 1994) (“[W]hether [an expert’s opinion] is based upon hearsay goes to the
weight and credibility of the testimony, not its admissibility.”); Ga. Code Ann. §
17-16-4(b)(2) (“The defendant shall . . . permit the prosecuting attorney . . . to
inspect and copy or photograph a report of any physical or mental examinations
and of scientific tests or experiments, including a summary of the basis for the
expert opinion rendered in the report, or copies thereof, if the defendant intends to
introduce in evidence in the defense’s case-in-chief or rebuttal the results of the
physical or mental examination or scientific test or experiment”); i; § 24-7-705
(eff. Jan. 1, 2013) (“An expert may testify in terms of opinion or inference and
give reasons therefor without first testifying to the underlying facts or data, unless
the court requires otherwise. An expert may in any event be required to disclose
the underlying facts or data on cross-examination”).
Jones’s habeas experts reviewed and referenced, among other things, his
military record, his prison psychiatric reports, and his family’s statements, and the
experts opined at length about the consequences of Jones’s childhood. Thus,
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during sentencing, the state would have been entitled to confront and cross-
examine the petitioner’s mental health experts as to the military and prison
documents, both because those documents formed a basis of the experts’ reports
and because they cast real doubt on the experts’ diagnoses. The state would also
have been able to use the prior bad act evidence to impeach J ones’s experts about
his inability to plan, process information, and control his impulses: Jones was
sufficiently competent to run houses of prostitution, to fashion makeshift weapons
in prison, to use numerous aliases, and to change his name whenever he was
arrested to avoid apprehension. In fact, Jones has failed to point us to any
particular aggravating circumstances that could n_ot have been used for
impeachment purposes. Nor has Jones cast any real doubt on the reliability of the
prison records, the accounting given by his daughter, his second wife or his friend
Orteal, or his own admissions to investigators about his prior bad acts.
In short, we are left with a state habeas record that contains some mitigating
background evidence from the retrial, new mitigating background evidence
accompanied by a host of new and quite substantial aggravating evidence, and new
mental health evidence that carried little weight for the state habeas court. Having
thoroughly considered the totality of this evidence, the new and the old, the good
and the bad, we cannot say that the state court’s detemiination about Strickland
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prejudice was contrary to or an unreasonable application of clearly established
Supreme Court law.
IV.
Jones also says that the prosecutor’s closing argument violated his Fifth
Amendment privilege against self-incrimination, and that the state habeas court’s
conclusion to the contrary was an unreasonable application of Griffin v. California,
380 US. 609 (1965). We reject this argument because the prosecutor’s closing
argument was not a commentary on Jones’s failure to testify at trial. '
A prosecutor’s statement violates the defendant’s right to remain silent if
“the statement was manifestly intended to be a comment on the defendant’s failure
to testify” or “the statement was of such a character that ajury would naturally and
necessarily take it to be a comment on the failure of the accused to testify.” United
States v. Knowles 66 F.3d 1 I46, 1162-63 (11th Cir. 1995) (internal quotation
marks omitted). In this case, neither was the prosecutor’s closing argument
manifestly intended to comment on Jones’s failure to testify, nor would the jury
necessarily and naturally have taken his remarks to be a comment on J ones’s
failure to testify. The prosecutor asked thejury, “Have you seen any remorse in
this case?” That statement did not directly criticize Jones’s refusal to testify to his
remorse. At most, the prosecutor drew the jury’s attention to the lack of remorse
that Jones had expressed to his pen pals and confidants. Indeed, the prosecutor
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expressly pointed out, “None of the defense witnesses who testified told you
anything about Jones being remorseful.” Thus, the most natural reading of the
prosecutor’s rhetorical question - “Is not that the kind of conduct that deserves the
death penalty?” -- is that the “conduct” in question was Jones’s failure to express
remorse to his pen pals and to the victim’s family. Qt; Isaacs v. Head, 300 F.3d
1232, 1267-72 (11th Cir. 2002). Quite simply, Jones has not shown that the
Georgia Supreme Court unreasonably applied gym or any other Supreme Court
precedent in concluding that the prosecutor’s argument did not violate Jones’s
Fifth Amendment privilege against self-incrimination.
Accordingly, we affirm the district court’s denial of Jones’s § 2254 petition.
AFFIRMED.
5|
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discretion.” Calderon V. Thompson, 523 US. 538, 549 (1998). However, “[i]n
light of the profound interests in repose attaching to the mandate of a court of
appeals,” the Court has cautioned that “the power can be exercised only in
extraordinary circumstances.” 15L. at 550 (quotation omitted). Indeed, recall of a
mandate is a “last resort” that should be used only in the face of “grave, unforeseen
contingencies.” I_d.
Our limited discretion to recall a mandate is further circumscribed in this
case because Jones is ultimately seeking relief from a state court criminal
judgment. Consequently, we are required to measure his motion “not only against
standards of general application, but also against the statutory and jurisprudential
limits applicable in habeas corpus cases.” I_d. at 553. The habeas petition that we
denied in M was filed afier April 24, 1996, and thus is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Title 28 U.S.C.
§ 2244(b), as amended by AEDPA, provides:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
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(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence; and
(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
The Supreme Court has explained that a motion to recall a mandate denying habeas
relief generally must be regarded as a second or successive habeas petition:
In a § 2254 case, a prisoner’s motion to recall the mandate on the
basis of the merits of the underlying decision can be regarded as a
second or successive application for purposes of § 2244(b).
Otherwise, petitioners could evade the bar against relitigation of
claims presented in a prior application, § 2244(b)(1), or the bar
against litigation of claims not presented in a prior application,
§ 2244(b)(2). If the court grants such a motion, its action is subject to
AEDPA irrespective of whether the motion is based on old claims (in
which case § 2244(b)(1) would apply) or new ones (in which case
§ 2244(b)(2) would apply).
Calderon, 523 US. at 553.
“Under § 2244(b), the first step of analysis is to determine whether a ‘claim
presented in a second or successive habeas corpus application’ was also ‘presented
in a prior application.’ If so, the claim must be dismissed; if not, the analysis
proceeds to whether the claim satisfies one of two narrow exceptions.” Gonzalez
v. Crosby, 545 US. 524, 530 (2005) (emphasis added). Jones’s motion to recall
is based on precisely the same claims we decided when we denied his original
§ 2254 petition; it does not raise any new claims not presented or fully adjudicated
10